Restoring the balance in bilateral investment treaties: incorporating human rights clauses

Abstract

Bilateral Investment Treaties are agreements made in order to promote
foreign investment in a specific country. Although foreign investment
is a positive force to promote development, in some cases the interests
of foreign investors can collide with the human rights of those living in
the host country. It is in these cases that the state needs to justify the
measures it takes based on its human rights obligations in order not to
be found responsible for breaching its obligations under an investment
treaty. This paper examines the consequences of the prospect of human
rights norms being included into bilateral investment treaties, as well
as the possibility of investment tribunals accepting human rights arguments of non-investment law issues when there are no direct references
to human rights law in the investment treaty, in order to demonstrate
that investment treaties must include explicit human rights provisions
to protect the capacity of states to take appropriate measures based on
its human rights obligations.