International investment agreements and human rights: assessing the role of the UN's business and human rights regulatory initiatives

This chapter examines the contribution of the UN’s three regulatory initiatives in the business and human rights (BHR) field in infusing human rights in international investment agreements (IIAs): the Draft UN Code of Conduct on Transnational Corporations 1990, the UN Guiding Principles on Business and Human Rights adopted in 2011, and the process to negotiate a BHR treaty which began in 2014. The 1990 Draft Code reflects an early ambition to strike a balance between the rights of foreign investors and their human rights responsibilities. However, the Code could not be adoptd, resulting in a “decoupling” of rights and responsibilities of investors. Although the UN Guiding Principles have tried to address asymmetries linked to this decoupling, National Action Plans on BHR adopted by states so far have not yet made significant impact in reforming IIAs. It is in this context that the proposed BHR treaty is grappling with the politics surrounding integration of human rights in IIAs. Despite various uncertainties about the treaty, it has the potential not only to build an international consensus around entry points to humanizing IIAs, but also underline the urgency to achieve this goal.