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Home Articles posted by Anil Yilmaz-Vastardis

Is International Investment Law moving the ball forward on IHRL obligations for business enterprises?

Published on May 15, 2017        Author: 

The question of whether businesses are subjects of international law in the absence of express treaty provisions to that effect, and thus can have IHRL obligations, receives mixed answers from legal scholars. Rights granted to businesses under international investment law and under human rights law, and obligations imposed on them under some environmental protection treaties (e.g. the International Convention on Civil Liability for Oil Pollution Damage) show that businesses can be right or duty bearers under international law. The UNGPs also recognise that businesses have a responsibility to respect human rights and remedy violations, but since they are non-binding, they do not introduce a legally enforceable obligation. Since 2014, discussions for a global treaty regulating business impact on human rights have been taking place at the UN level. There is yet little clarity on the form (regional, sectoral, global) and content of such a treaty. Among the key disagreements as to the content of the treaty is whether it should introduce direct human rights obligations for businesses under international law. Some argue that imposing direct IHRL obligations on businesses would not add much to the already existing IHRL framework that requires states to already protect against human rights abuses by business, and that it should not be a “substitute for the states’ duties to fulfil their human rights obligations”. Others argue that effective legal protection requires legal responsibilities of businesses to respect human rights to be recognised in an internationally binding instrument.

While the debate on the BHR treaty is likely to continue for a while longer, some recent developments in international investment law (IIL) seem to be moving the ball forward, albeit slowly, on IHRL obligations for businesses. IIL has been viewed by some of its critics as a force undermining IHRL and this is rightly so in some circumstances. But IIL can also act as a conduit to improve IHRL protection. I will discuss here some of the progress made in this area by the ICSID award in Urbaser v Argentina and some “next generation” investment agreements, most notably, the Morocco-Nigeria BIT and the Indian Model BIT.

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