Human Rights and International Investment Agreements: How to Bridge the Gap?

Abstract

Although an increasing number of bilateral investment treaties (BITs) now incorporate the concept of sustainable development, direct reference to human rights is still rare and remains embryonic. A close look at the positions held by some representative groups and countries, including the European Union (EU), the USA, China, India, South Africa, and Mercosur, reveals that the reference to human rights features divergence. The divided positions held by these groups or countries reveal the difficulties of operationalizing human rights obligations into international investment rule making. Even among developed countries or economies, a consistent approach to human rights is yet to be found. Based on these observations, this article proposes a number of pragmatic solutions to bridge the gap between these divided positions. In order to synergize international investment treaty regimes on human rights, internal engagement, including the reform of BIT dispute settlement regimes, and external engagement, including dialogues among stakeholders, should be made.