On Suffering and Societal Constitutionalism: At the Border of International Investment Arbitration and Human Rights

Abstract

Short of a consensus on comprehensive global legal ordering, how might we expect discrete international regimes to respond to claims articulated in human rights terms? How might, in Upendra Baxi’s phraseology, the “voices of suffering” be heard? Systems theory provides one such account, constructed as it is upon communications between autonomous sub-systems. As sub-systems pursue autonomous rationalities, they invariably run up against the operating logic of other sub-systems. This causes irritations and perturbations that can be heard by the offending sub-system but is responded to, if at all, in ways consistent with its logic and language. International investment law is taken up to illustrate how a single global legal order responds to irritations in the realm of human rights. It is argued that investment law does not respond well to claims articulated in non-investment terms, such as human rights. Reflexive strategies advanced by systems-theoretic accounts are likely to fail in checking the supremacy of economic rationality embedded within investment law’s rules and institutions.

Keywords: human rights, international investment law, systems theory