International Human Rights

In this brief post, I want to make sense of Prabhash Ranjan’s brief critique of TWAIL perspectives on international investment law. My main aim is not to mount a defense of TWAIL project(s) on investment law because that might be done more eloquently by others. Instead, I want to make some brief comments about the political valence of, and the assumptions behind, the reservations that Professor Ranjan articulated in this post, and which also appear in his recent book on India and Bilateral Investment Treaties.

I argue that it is time to explore the possibilities of a substantial reform, which should include: the renegotiation of the current 3,200 IIA; to stop signing treaties with arbitral clauses and extremely favourable conditions for investors; the promotion of an effective sovereignty States over the space that they should regulate; and the approval of binding obligations for companies. The failure to address substantive issues in ISDS, and to only focus on procedural aspects of reform, will lead to the consolidation and re-legitimatisation of this system, under the guise of “modernizing” it.

As social movements and civil society continues to seek support within international law in their claims for justice, the reflection on the absence of international corporate accountability mechanisms is an open field for human rights discourse dispute.

Human rights principles and standards are strongly reflected in the 17 Sustainable Development Goals (SDGs) adopted at the UN Sustainable Development Summit in 2015. However, for victims of human rights violations at the hands of transnational corporations the question of redress remains daunting. Access to justice challenges faced by such victims before domestic courts have placed this issue at the forefront of international discourse. Accordingly, one of the ‘pillars’ on which the United Nations Guiding Principles on Business and Human Rights (UNGP) are founded is the “need for rights and obligations to be matched to appropriate and effective remedies when breached”, including state-based judicial, state-based non-judicial, and non-state–based remedies.

This analysis demonstrates three key points. First, it is becoming untenable for central banks to avoid incorporating their human rights impacts into their decision-making and operations. Second, a human rights approach offers central banks a new tool for understanding the true costs and benefits of their operations. Third, central banks can meet their human rights responsibilities without compromising the independence they need to meet their monetary and financial responsibilities.

One of the key points of departure of this book is that ‘the prevailing investment treaty based rules regime institutionalises neoliberalism, which argues for a lesser involvement of the state in the market’ (p. 19), and that ‘despite neo-liberalism’s aversion to the role of the state in economic matters, the state is responsible for the public interest and is the highest authority and a reduction in its economic functions’ (p. 19). It is on this basis that Adeleke theorises a harmonisation between the neoliberalist attitudes of international investment law on the one hand, and the public interest objectives of human rights law on the other.