The proliferation in the international legal system of treaty rules belonging to different functionally defined regimes, including international human rights law and investment law, has given rise to normative conflicts. The current Draft Treaty on Business and Human Rights attempts to prevent these conflicts by including conflict clauses, which address the relations between human rights obligations of States parties and, respectively, existing IIAs and new IIAs. As far as existing IIAs are concerned, the compatibility clause in Article 14.5.a of the Draft Treaty is not meant to solve genuinely irreconcilable normative conflicts, but only to smooth over any contradictions among human rights obligations and investors’ rights. However unambitious it may be, this is the most practicable solution for enhancing compliance with human rights in the context of business-related activities, since a supremacy clause establishing the prevalence of human rights over investors’ rights vested by IIAs already in force would require revising or modifying hundreds of IIAs. Such a burdensome requirement risks discouraging participation in the prospective treaty or pushing States towards reservations. With regard to future trade and investment agreements, a primacy clause is envisaged in Article 14.5.b, which gives prevalence to human rights obligations over obligations under trade and investment agreements with the aim of preventing genuine normative conflicts. In this connection, the provision clearly seeks to advance the protection of human rights in the context of business activities. Nonetheless, the choice to broaden the scope of the provision so as to protect all ‘other relevant human rights conventions and instruments’ risks weakening its clarity and effectiveness. A less problematic solution would be to limit its scope to inconsistency between obligations under IIAs, on the one hand, and the Draft Treaty, together with a listed number of human rights conventions and instruments, on the other. Be that it as it may, like all conflict clauses establishing prevalence over existing or future treaties, Article 14.5 suffers from an inherent limit consisting in the possibility for it to be superseded by the parties by way of subsequent inconsistent treaty obligations. Irrespective of the conflict clause, and without prejudice to any question of responsibility which may arise, States parties may reconsider their position and hold it to be more beneficial to favor investor rights. They may therefore regrant prevalence to obligations stemming from existing IIAs, by way of interpretation or implementation, or may conclude IIAs incompatible with the Draft Treaty and other international human rights conventions and instruments. Considering that the consequences ensuing from undertaking different treaty obligations, which may turn to be inconsistent, are not regulated, and that no sanction is envisaged by the Draft Treaty against States parties for violations of the conflict clause enshrined therein, the aim of redressing the imbalance between human rights and investors rights risks being frustrated. To conclude, the inclusion of a conflict clause in the Draft Treaty must be welcomed as a means to enhance human rights protection vis-à-vis investors’ rights, but its impact should not be overestimated. The drafting of a new legal instrument on business and human rights must go hand in hand with the current process of revising existing IIAs and of drafting new human rights sensitive IIAs so as to further consistency between these two bodies of law.
The Draft Treaty on Business and Human Rights: What way forward for greater consistency between human rights and investment agreements?
Roberta Greco
2021-01-01
Abstract
The proliferation in the international legal system of treaty rules belonging to different functionally defined regimes, including international human rights law and investment law, has given rise to normative conflicts. The current Draft Treaty on Business and Human Rights attempts to prevent these conflicts by including conflict clauses, which address the relations between human rights obligations of States parties and, respectively, existing IIAs and new IIAs. As far as existing IIAs are concerned, the compatibility clause in Article 14.5.a of the Draft Treaty is not meant to solve genuinely irreconcilable normative conflicts, but only to smooth over any contradictions among human rights obligations and investors’ rights. However unambitious it may be, this is the most practicable solution for enhancing compliance with human rights in the context of business-related activities, since a supremacy clause establishing the prevalence of human rights over investors’ rights vested by IIAs already in force would require revising or modifying hundreds of IIAs. Such a burdensome requirement risks discouraging participation in the prospective treaty or pushing States towards reservations. With regard to future trade and investment agreements, a primacy clause is envisaged in Article 14.5.b, which gives prevalence to human rights obligations over obligations under trade and investment agreements with the aim of preventing genuine normative conflicts. In this connection, the provision clearly seeks to advance the protection of human rights in the context of business activities. Nonetheless, the choice to broaden the scope of the provision so as to protect all ‘other relevant human rights conventions and instruments’ risks weakening its clarity and effectiveness. A less problematic solution would be to limit its scope to inconsistency between obligations under IIAs, on the one hand, and the Draft Treaty, together with a listed number of human rights conventions and instruments, on the other. Be that it as it may, like all conflict clauses establishing prevalence over existing or future treaties, Article 14.5 suffers from an inherent limit consisting in the possibility for it to be superseded by the parties by way of subsequent inconsistent treaty obligations. Irrespective of the conflict clause, and without prejudice to any question of responsibility which may arise, States parties may reconsider their position and hold it to be more beneficial to favor investor rights. They may therefore regrant prevalence to obligations stemming from existing IIAs, by way of interpretation or implementation, or may conclude IIAs incompatible with the Draft Treaty and other international human rights conventions and instruments. Considering that the consequences ensuing from undertaking different treaty obligations, which may turn to be inconsistent, are not regulated, and that no sanction is envisaged by the Draft Treaty against States parties for violations of the conflict clause enshrined therein, the aim of redressing the imbalance between human rights and investors rights risks being frustrated. To conclude, the inclusion of a conflict clause in the Draft Treaty must be welcomed as a means to enhance human rights protection vis-à-vis investors’ rights, but its impact should not be overestimated. The drafting of a new legal instrument on business and human rights must go hand in hand with the current process of revising existing IIAs and of drafting new human rights sensitive IIAs so as to further consistency between these two bodies of law.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
