The (De)legitimising Use of Human Rights Language in ISDS

International Law Reading Group is happy to announce its fifth event in the new Early Career Research Exchange (ECRE) Series, hosting Dr. Nicola Strain, who is a postdoctoral fellow at the University of Oslo. Nicola will be sharing her research titled as "The (de)legitimising use of human rights language in ISDS: justice and (de)colonialism in the spotlight" with the PGR community of Edinburgh Law School.

The full abstract of Nicola's research can be found below:

Backlash against investor-state dispute settlement (ISDS) led many arbitrators to become increasingly mindful of the important role of human rights within international law in their decision-making. Human rights began to be seen as a shining light for the legitimacy of beleaguered economic tribunals. Tribunals frequently utilise human rights language, recognising the fundamental human rights standards, thereby utilising human rights language as a legitimising cloak against criticisms of solely protecting economic interests. Yet, there remain persistent barriers to the incorporation of human rights concerns within investment arbitration, most notably the human rights obligations of investors. When assessed against how human rights norms are actually applied by tribunals, such legitimising statements may could in fact be having the reverse effect.

The paper adopts a medium-N empirical and doctrinal analysis of all partial and final treaty-based awards in investor-state dispute settlement up to 31 December 2022 to analyse the full spectrum of human rights language adopted by tribunals. The language used by tribunals is assessed through the lens of justice standards as a framework for assessing the normative legitimacy of investor-state dispute settlement.

By looking through the lens of justice, the paper considers the (de)colonial narrative of investment law and human rights: which human rights and whose are they? Are developed and Western States benefiting more from the turn towards human rights protections in investor-state dispute settlement? By grounding the empirical and doctrinal study within critical and theoretical approaches to human rights language, the paper goes beyond identifying the superficial recognition of human rights language in investor-state dispute settlement. Rather, the paper sheds lights on how human rights language has evolved in investor-state dispute settlement, not only reflecting the benefits of increased usage of human rights language, but also what costs come with this language for the legitimacy of the tribunals.

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