International Investment Agreements (IIAs) and Human Rights
or investment chapters in trade agreements (IIAs) concluded by states – in a bilateral, regional or international setting – can adversely affect the business respect for human rights in diverse ways. In addition to constraining the legal or policy space available to states to regulate the conduct of investors, IIAs can also impact affected communities’ right to seek effective remedies against investors for project-related human rights abuses.
Principle 9 of the
UN Guiding Principles on the Business and Human Rights (UNGPs), therefore, reminds States to “maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts.”
How could states maintain such domestic policy space? Building on the work of
UNCTAD and others in this area, the Working Group aims to unpack implications of Principle 9 for all three pillars of the UNGPs and provide concrete guidance to states in managing better the adverse impact of IIAs on human rights.
The 2021 General Assembly report
The Working Group’s 2021 report to the UN General Assembly will focus on providing practical guidance to states on negotiating human rights-compatible IIAs in line with the UNGPs. The report will cover all three pillars: the duty of states to preserve regulatory space while negotiating IIAs so as to strike a balance between attracting investment and promoting responsible business conduct; the responsibility of investors to respect all internationally recognized human rights; and the role of IIAs in providing access to remedy to individuals and communities affected by investment-related projects.
An open call for input will soon be issued and posted here. The Working Group also aims to convene some consultations with different stakeholders during 2020-21.
If you would like to engage with the Working Group in this project, please contact the Working Group with “IIAs and HRs” in the email subject (email@example.com).
The work so far
The 2021 report will build, among others, on prior work undertaken by the Working Group examining various dimensions of the interface between IIAs and human rights.
1. Connectiong the dots
In its October 2017 report to the UN General Assembly (A/72/162), the Working Group highlighted that “effective remedies for business-related human rights abuses could be sought in diverse settings … and that the negative impact of … dispute settlement under trade or investment agreements” on access to effective remedies under the UNGPs should be managed. The report further recommended: “States should conduct an inclusive and transparent human rights impact assessment before concluding trade-investment agreements and insert explicit substantive human rights provisions in those agreements to preserve adequate policy space to discharge their human rights obligations.”
On 18 October 2017, the Working Group and the Columbia Centre on Sustainable Investment (CCSI) co-hosted a roundtable in New York on “Impacts of the Investment Regime on Access to Justice”. An
outcome paper of the roundtable is now available.
A three-prong approach has been suggested to states in the following blogpost to ensure that IIAs do not result in asymmetrical empowerment of investors or inequitable and unsustainable economic development:
Managing States’ “Fatal Attraction” to International Investment Agreements
4. Letter to states
In March 2019, the Working Group joined other UN experts to write a letter to states to raise concerns about the ongoing work of the Working Group III on Investor-State Dispute Settlement (ISDS) Reform.
5. Sessions at the UN Forum
The Working Group, in collaboration with other partners, has organized several sessions at the annual
UN Forum on Business and Human Rights to stimulate discussion about challenges and emerging good practices to manage those challenges in the context of IIAs and human rights:
- 2019 Forum:
Aligning international investment policy and practice with the pillars of “Protect, Respect, Remedy” - what States should do
- 2018 Forum:
Crowd-drafting: Designing a Human Rights-Compatible International Investment Agreement
In response to the "crowd-drafting" call for a session at the 2018 Forum, the following proposals were received:
Submission by: International Institute for Sustainable Development
Submission by: Alessandra Arcuri, Francesco Montanaro and Federica Violi. Erasmus School of Law, Erasmus University Rotterdam. Arbitration for all
Submission by: Alessandra Arcuri, Francesco Montanaro and Federica Violi. Erasmus School of Law, Erasmus University Rotterdam. Substitute investor-State arbitration with public alternative complaint mechanisms (PACoMS)
Submission by: Yulia Levashova LL.M. and prof. dr. Tineke Lambooy LL.M. Nyenrode Business University, Breukelen, The Netherlands
Submission by: by Tara Van Ho, Anil Yilmaz Vastardis and Luis Felipe Yanes. University of Essex. Essex Business & Human Rights Project
Submission by: Dr Daria Davitti (Postdoctoral Fellow, Department of Law, Lund University; Assistant Professor, University of Nottingham, School of Law); Ms Kathryn Greenman (PhD Candidate, Amsterdam Center for International Law, University of Amsterdam; Fellow, Melbourne Law School); Dr Ntina Tzouvala (ARC Laureate Postdoctoral Fellow and Senior Fellow, Melbourne Law School)
Submission by: Dr. Edward Guntrip (Lecturer in Law, University of Sussex). A Host State Human Rights Counterclaim in Investment Arbitration
Submission by: Mekonnen Seid, (PhD Candidate, School of Law, City University of Hong Kong, Hong Kong). International Investment Agreements and the Obligations of Investors to Respect Human Rights