Right to development and Obligations for Investors and businesses Advantages and disadvantages Dr Carlos Lopez International Commission of Jurists Introduction: Right to Development and investment The concept of Right to Development: every
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Presentation Transcript
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Right to development and Obligations for Investors and businesses Advantages and disadvantages Dr Carlos Lopez
International Commission of Jurists<br>
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Introduction: Right to Development and investment The concept of Right to Development: every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized
Closely linked to concept of sustainable development
The UN Sustainable Development Goals requires investment
Monterrey, Doha, Addis Ababa declarations<br>
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Investors’ obligations in a Right to Development convention RtDev Convention can provide multilateral framework to support countries efforts to reform:
Bilateral Investment Treaties, or Free Trade Agreements
National laws and regulations on investments (incl foreign investment)
RtDev Convention with provisions on investors duties can strengthen bargaining position of countries
RtDev Convention can help to balance investment protection regime currently seen as unbalanced<br>
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What obligations for investors? Compliance with national law-
and/or int law applicable in the host country
Disclosure to the Government and the public of information about ownership, past and present practices and future plans
Respect for human rights and labour rights in accordance with national law
And/or int law applicable in the host country
“best efforts” obligation to respect all human rights in global operations
Pre-establishment and ongoing social (human rights/labour) and environmental impact assessment/ due diligence<br>
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Approaches “Soft approach”: states should encourage enterprises to incorporate corporate social responsibility standards ( BIT Canada-Mongoli, art 14, Argentina-Qatar BIT, art 12)
“hardened approach”: Morocco- Nigeria BIT art 16: investors are required to maintain an environmental management system, uphold human rights, act in accordance with internationally recognized labour rights, and refrain from operating their investment in a way that circumvents the state’s international environmental, labour and human rights obligations
Or ECOWAS Supplementary Act on Common Investment Rules for the community: entire chapter on investors obligations
Investors failure to adhere to prescribed standards will prevent them from:
Initiating int arbitral proceedings
Become subject of State’s conterclaim
And/or result in a proportionate reduction of damages awarded<br>
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Investors’ obligations advantages States will preserve their policy space to perform their int obligations re Right to Development and human rights
Make investment consistent and conducive to national efforts towards development objectives
Afford better protection and measure of relief to negatively impacted population disadvantages Heightened level of obligations may be seen as discouraging
Maybe eroded by low level of ratification or implementation
Requires domestic good faith efforts to enact to legislate and enforce laws<br>
