To make International Investment Agreements (IIAs) compatible with states' international human rights obligations, it is necessary to profoundly rethink their structure.
In the complex world of International Investment Agreements, the question of human rights emerges with particular urgency. Their inclusion is far from uniform, fluctuating between progressive recognition and sometimes total ignorance. Questions about their effectiveness arise, depending on their binding nature and judicial implementation. Some IIAs go as far as imposing explicit obligations on investors, while others merely encourage voluntary compliance. The application of these provisions often relies on countermeasures by host states, an exercise that can prove to be complex and difficult to implement.
To improve the effectiveness of these provisions, particular attention must be paid to the formulation of treatment standards and the application of international law to disputes related to investment treaties. Stabilisation clauses, for example, must be specific and should not hinder a state’s ability to fulfil its human rights obligations. Including a « right to regulate » clause can also affirm a state’s right to adopt measures to comply with its human rights obligations.
To make IIAs compatible with states’ international human rights obligations, their structure must be profoundly rethought. Clauses related to human rights should be more than a mere exhortation; they should be at the core of the treaty. The language of the treaty should promote the effective applicability of human rights, with direct references to these obligations. Parties can issue statements clarifying their intentions for existing treaties, and future treaties could establish institutions for their interpretation. Procedural mechanisms should be included to enforce human rights obligations, such as allowing states to bring counterclaims against investors. Exclusion clauses and human rights waivers should be included, exempting the host state from certain human rights protection obligations. Finally, a supremacy clause could be incorporated to affirm the primacy of human rights over the obligations of investment agreements.