Symposium on international investment law and human rights
International investment law and human rights law share an uneasy relationship. Ever since the problematic interaction between the two areas of law entered mainstream discourse over a decade ago, the tension could not be resolved. If anything the complexity of the relationship has become ever more obvious. In a recent issue the Leiden Journal of International Law (LJIL) launched a discussion on some aspects of this relationship with its symposium on “International Investment Law and Human Rights”.
We at Völkerrechtsblog are extremely happy to take the debate into the digital realm with our symposium on “International Investment Law and Human Rights” in cooperation with the LJIL. The goal of the symposium is to provide space for exchanges on unresolved issues at the interface of international investment law and human rights. Over the course of this week we will feature two exchanges. Each takes as a starting point one particularly thought-provoking article from the LJIL issue. Two scholars, Silvia Steininger and Oliver Hailes, respectively comment on LJIL articles by Moshe Hirsch and a collaborative piece by Tomer Broude and Caroline Henckels. The LJIL articles’ authors will then each respond.
In the first exchange, Silvia Steininger engages with Hirsch’s article “Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law“. In his LJIL contribution Moshe Hirsch highlights the role social movements can play in the development of human rights concerns in international investment law by piercing the classic investor-state frame. Steininger believes that a study of social movements should also take the Global South into account and questions whether the legal strategies to increase the application of human rights law suggested by Hirsch can actually bring about fundamental change in investment arbitration. In his reply, Hirsch addresses her concerns, stating that neither social movements, nor any other actor can be the “single saviour” to transform international investment law.
The second exchange focuses on “Not all rights are created equal: A loss-gain frame of investor rights and human rights” by Tomer Broude and Caroline Henckels. In their article, Broude and Henckels argue that investors’ claims are frequently framed in a language of “rights” by practitioners and scholars alike. Human rights on the other hand are understood as “aspirational demands” to be realized in the future. This understanding places human rights at a “structural disadvantage”, which the two illuminate using a loss-gain frame that builds on behavioural economics and cognitive psychology. For the symposium, Broude and Henckels enter into a dialogue with Oliver Hailes who contends that the loss-gain frame could be escaped by shifting focus onto the states’ duty to regulate.
Beyond the pieces discussed here, the LJIL symposium includes additional articles worth exploring, by Jean-Michel Marcoux (Informal instruments to impose human rights obligations on foreign investors: An emerging practice of legality?), Dafina Atanasova (Non-economic disciplines still take the back seat: The tale of conflict clauses in investment treaties) and Ole Kristian Fauchauld (International investment law in support of the right to development?). It is based on papers delivered at a workshop on “The Legitimate Role for Investment Law and Arbitration in Protecting Human Rights” at the University of Oslo in February, 2019, organized by LEGINVEST and PluriCourts, in collaboration with Monash University , the Minerva Center for Human Rights at the Hebrew University of Jerusalem and the Grotius Centre for International Legal Studies at Leiden University.
We are grateful for the support of the editors-in-chief of the Leiden Journal of International Law, Ingo Venzke and Eric De Brabandere, and we are looking forward to the discussion!