Promoting, Regulating, and Enforcing Human Rights Through International Investment Law and ISDS
Promoting, Regulating, and Enforcing Human Rights Through International Investment Law and ISDS
Abstract: This Article suggests a reconciliation of the underlying goals embedded in international investment protection and international human rights protection. This is achieved by enhancing the fundamental elements of international investment law (“IIL”) and arbitration while simultaneously elaborating on the ipso facto role of international human rights protection in international investment agreements (“IIAs”). Embracing this rebalancing and integration of supposedly separate regimes may allow the effective enforcement of a multifaceted, yet systemically coherent, transnational rule of law through the mechanism of investor-state dispute settlement (“ISDS”). Further, this is in line with the current shift from “investment promotion and protection” to “investment regulation” that is taking place in IIL.
This Article will illustrate the intrinsic potential of international investment law in furthering international human rights in a globalized world and highlight why ISDS and arbitration, in particular, are fully capable as institutions to enforce these multifaceted rules when international legal regimes interact in a seemingly fragmented international legal order. Indeed, the ideals in liberal capitalism and liberal democracy, as manifested partly in ensuring and protecting individual rights and liberties in a strong rule of law, should remain the most cherished features of a liberal world order.
This Article focuses on the human right to water, and corollary on foreign investments made in water services and sanitation. While the topic is rather limited, it encapsulates the overall debate on the interaction between international human rights and IIL. It is argued that the human right to water actually underscores the dire need for foreign direct investment, and therefore mandates a thorough analysis vis-á-vis the objectives and purpose underpinning IIL and ISDS. Thus, individuals should assess the recent debates on fragmentation and regime interaction, especially at the crosshairs of IIL and international human rights, through the lens of striking a balance between half-cooked ideals and unintended consequences.
ISDS is the transnational venue for dispute resolution that can properly adjudicate matters at the crossroad between international economic law and other, sometimes conflicting, regimes of public international law, such as human rights and environmental law. Arbitrators exercising systemic interpretation and integration will be equipped to enforce an all-encompassing global rule of law. This is what a twenty-first century citizenry expects.
Recommended Citation: Crina Baltag & Ylli Dautaj, Promoting, Regulating, and Enforcing Human Rights Through International Investment Law and ISDS, 45 Fordham Int'l L.J. 1 (2021).