Abstract
A sustainable trade and investment policy should enhance corporate social responsibility and accountability. The current architecture of trade and investment agreements requires fundamental recalibrating to include binding and enforceable investor obligations, while the grounds for bringing investment claims against states should be curtailed. The policy space of states to regulate in the wider public interest must take firm precedence over investor rights and privileges, and at the international level, effective avenues should be established that provide access to justice for victims of investor crimes.
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Notes
In the case of Gabriel Mining against Romania over refusal of a permit for a highly controversial and environmentally damaging gold-winning project for example, the damages claimed amount to 2 percent of Romania’s GDP.
‘Nabiel Makarim Agrees with Mining in Protected Forests’, Mines and Communities, 15-06-2002. At: (http://www.minesandcommunities.org/article.php?a=7737 last accessed 19 May 2016).
Vattenfall I vs Germany: In 2009, Swedish energy company Vattenfall started an ISDS procedure against Germany. Vattenfall had engaged in the construction of a coal fired power plant in Hamburg-Moorburg, located on the Elbe river. When Hamburg‘s Environmental Authority imposed quality controls for the waste waters released into the river from the power plant, Vattenfall claimed that those standards made the investment project unviable. Using ISDS provisions, the company asked Germany for compensation totalling €1.4 billion. The case was eventually settled when the City of Hamburg agreed to lower the environmental previously set requirements. Source: https://www.foeeurope.org/isds (last accessed 19 May 2016).
Indeed, the EU was recently faulted by the European ombudsman for failing to carry out a specific human rights impact assessment for the trade agreement it was concluding with Vietnam.
Socialising Losses, Privatising Gains. Briefing paper published by BothEnds, Friends of the Earth Netherlands, TNI and SOMO, January 2015.
Declaration From The Addis Ababa Civil Society Forum On Financing For Development, 12 July 2015, https://csoforffd.files.wordpress.com/2015/07/addis-ababa-cso-ffd-forum-declaration-12-july-2015.pdf, last accessed 19 May 2016.
Human Rights Watch is scathing in its critique of the EU’s human rights dialogue with China, for example: https://www.hrw.org/news/2015/11/26/eu/china-rights-dialogues-without-benchmarks-lack-impact.
The relevant text states ‘Recognizing that the development of economic and business ties will promote internationally accepted labour standards; Considering that these objectives can be achieved without compromising health, safety and environmental measures of general application’.
Business & Human Rights Resource Centre tracks the human rights policy and performance of over 6000 companies in over 180 countries, making information publicly available, http://business-humanrights.org/en/about-us last accessed 19 May 2016.
ETO principles 17 and 29.
ETO principles, page 3, http://www.etoconsortium.org/nc/en/main-navigation/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23, last accessed 19 May 2016.
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van Os, R., Knottnerus, R. Investment Protection Agreements, Human Rights and Sustainable Development: An Uneasy Mix. Development 59, 107–113 (2016). https://doi.org/10.1057/s41301-017-0089-6
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DOI: https://doi.org/10.1057/s41301-017-0089-6