Spinning Straw into Gold: Incorporating the Business and Human Rights Agenda into International Investment Agreements

Abstract

The adoption of the U.N. Guiding Principles on Business and Human Rights represents a watershed moment in the business and human rights movement. Nevertheless, despite its achievements, the work to align business and human rights issues remains.

One approach to furthering the work in this area has been to focus on the establishment of a new international binding treaty on business and human rights issues. Treaty proponents view a binding treaty as a mechanism by which existing gaps in human rights protection can be closed. Yet critics are skeptical. They point to the lack of treaty support by states which are headquarters for multinational corporations and worry about the diminishment of aspired treaty rights during the treaty negotiation process as evidence of their concerns.

This article questions whether there is a need for a “new” international business and human rights treaty. Instead it argues that the linkage of business and human rights issues can be made by way of international investment agreements (IIAs). Given the bilateral or regional nature of IIAs, multilateral state support is lessened, facilitating adoption of new principles or rights. Moreover, IIAs offer a robust enforcement mechanism, through international arbitration, which can provide effective remedies. In addition, because multinational corporations are often reliant on IIAs to gain access to new markets, IIAs can be used as a tool to impose human rights obligations onto corporations from the outset before abuses occur. Most importantly, reconfiguring IIAs to adopt the BHR agenda ensures that norm development in business areas does not undermine human rights issues when these two areas intersect and that corporate rights stand in parallel to corporate obligations.

Keywords: International Law, Business and Human Rights, Foreign Investment, International Investment Agreements, Human Rights, International Arbitration, Business and Human Rights Treaty

JEL Classification: K33, K2, F23, F02