A RECORDING OF THIS SESSION IS AVAILABLE HERE.Session organized by the UN Working Group on Business and Human Rights
Interpretation in english, French and Spanish available
Brief description of the session:
The 2021 report of the UN Working Group on Business and Human Rights to the UN General Assembly will provide guidance to States on negotiating human rights-compatible international investment agreements (IIAs) in line with the UN Guiding Principles on Business and Human Rights (UNGPs). The report will cover all three pillars of the UNGPs: (i) the duty of States to preserve regulatory space while negotiating IIAs so as to strike a balance between attracting investment and promoting responsible business conduct; (ii) the responsibility of investors to respect all internationally recognized human rights; and (iii) the role of IIAs in providing access to remedy to individuals and communities affected by investment-related projects. This session will focus on collecting input from various experts and stakeholders as to the key elements of this forthcoming report. COVID-19 has made the issue of reforming IIAs more pressing because the measures taken by States to deal with the pandemic may clash with their obligations under IIAs.
Key objectives of the session:
The session aims to:
- Analyse elements necessary in IIAs to preserve regulatory space needed by States to respect, protect and fulfil human rights under international human rights law;
- Discuss how IIAs could promote business respect for human rights;
- Examine the potential of IIAs in providing access to remedy to communities for investment-related human rights abuses; and
- Explore how IIAs could create better economic opportunities for marginalised groups, so as to contribute to the goal of leaving no one behind.
Key questions:- How can States strike a balance, in negotiating new IIAs, in creating an investment-friendly environment and fulfil their international human rights obligations?
- What are the most efficient options available to States to reform existing IIAs?
- Should IIAs include human rights obligations of investors? If so, what should be their content?
- Could IIAs be used by communities affected by investment-related projects to seek remedies against investors?
- How could IIAs contribute to achieving inclusive and sustainable economy?
Background to the discussion:
States tend to use IIAs (including investment chapters in trade agreements) as one of the tools to create an investment-friendly environment. However, as shown in numerous instances including during the COVID-19, IIAs can also constrain the legal or policy space available to States to regulate the conduct of investors. They may create a regulatory chill and in turn discourage states to take domestic measures to fulfil their international human rights obligations. Moreover, IIAs can impact affected communities’ right to seek effective remedies against investors for project-related human rights abuses. For these and other reasons, Principle 9 of the UNGPs reminds States to “maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts.”
Building on the recommendations of UNCTAD and other organisations, the 2021 report of the UN Working Group will unpack how States could implement Principle 9 to negotiate IIAs which are not only compatible with their international human rights obligations but also contribute to realising the Sustainable Development Goals. The report will also focus on certain relevant aspects of Pillars II and III of the UNGPs, e.g., how IIAs could reinforced investors’ human rights responsibilities and provide an additional avenue to communities affected by investment-related projects to seek remedies.
Additional background documents or relevant links:The session will help inform the WG’s project ‘
Business and human rights: towards a decade of global implementation' (also known as “UNGPs 10+ / Next Decade BHR”). Centred around the upcoming tenth anniversary of the UNGPs in 2021, the project is taking stock of practice to date, identifying gaps and challenges, and developing a vision and roadmap for scaling up implementation of the UNGPs over the course of the next decade.
