International Investment Agreements

States could rely on secondary rules on State responsibility to defend preventative measures relating to COVID-19, yet their successful invocation depends on satisfying several conditions set out in the ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, a discussion of which is beyond the scope of this post. Meanwhile, the applicability of the doctrine of margin of appreciation, developed by the European Court of Human Rights, to the claims arising under BITs has been accepted, justifying why investment tribunals should pay deference to governmental judgments of national requirements in the protection of public health when the “discretionary exercise of sovereign power, [is] not made irrationally and not exercised in bad faith”

Access to justice for victims of business-related human rights violations, including harm caused by transnational resource extraction projects, remains a pressing global concern. A 2018 study by the Office of the United Nations High Commissioner for Human Rights (OHCHR) notes that such victims “continue to struggle to achieve effective remedies for the harm they have suffered”. This is despite the development and widespread endorsement by states and businesses of the Sustainable Development Goals (SDGs) and the United Nations Guiding Principles on Business and Human Rights.

In short, the SDGs and its interesting set of targets are a fertile ground not only to reimagine past UN led decade themed goals and their implications for (sustainable) development, but, to also situate them in contemporary discourse of the activities of nations, transnational corporations and other non-state actors. As part of the 2019 Purdy Crawford Workshop, the contributions to the symposium on “Sustainable Development Goals, Trade, Investment, and Inequality” critically examine these goals from the vantage point of each contributor’s scholarly expertise.

While international trade has undergone significant structural changes recently, particularly with the proliferation of new generation of free trade agreements (FTAs), the debate on the consequences of IIAs for sustainable development continues to widen and intensify. In effect, while there has been fundamental changes in the international investment landscape in terms of players (now comprising state-owned enterprises and sovereign wealth funds) and FDI direction (with emerging economies now being, not only recipients, but increasingly home states), governments are also now adopting industrial policies and development strategies that contrast with their erstwhile hands-off approach to economic development.