Foreign Direct Investments and Environmental Degradation: A Critical Analysis

Foreign Direct Investments and Environmental Degradation: A Critical Analysis

Economics | Dec 28, 2017 / by Ashita Jain
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International investments are essential for the expansion and continued liberalization of the global economy. Investments through the activities of transnational corporations (TNCs) are the driving force behind globalisation. Through their control over resources, access to markets, and development of new technologies, TNCs have the potential to generate enormous benefits, (especially in developing countries) and aid in poverty reduction.[1] As a result, the expansion of foreign investments has been rapid across the world, particularly in the third world. In 2015, the global flows of FDIs were worth $1.8 trillion, which is the highest level since the global economic and financial crisis began in 2008.[2] However, the spurt in foreign direct investments (FDIs) fuelled by the economic interests of the States has also taken place at the expense of social welfare and pure environment of the communities in the vicinity. The nature of international investment agreements has always been highly commercial, due to which fundamental human values and environmental integrity have often been compromised. The main argument of the essay is that the existing international investment regime is ill-equipped to effectively maintain environmental integrity in FDIs and deal with related disputes. The essay begins with a brief history of the evolution of the current international investment regime and its effect on the environment. It goes on to discuss three reasons for the frustration of environmental integrity under the current foreign investment laws- underdevelopment of international environmental laws, commercial nature of Bilateral Investment Treaties (BITs), and ineffective dispute settlement mechanism. It is not intended to outline the exact fix or to fully bridge the divide between current norms of investment activity and environmental concerns, but to discuss the important aspects of the issue that require attention and propose potential solutions.

 

Evolution of BITs and Environmental Degradation:

International investment law has its roots in the protection of the international rights of aliens, especially their property rights.[3] Thus, it can be said that international investment laws are derived from human rights to a certain degree. In the past, the only recourse available to a TNC, whose foreign investment had been endangered by the conduct of the host state, was to seek espousal of the claim from its home state. This meant that the investor’s access to legal remedy was subject to the vagaries of international relations and the investor was fairly excluded from the legal proceedings. There was no means for private investors to individually represent their claims. The period of decolonization changed this position. The newly independent states, which were eager to assert their sovereignty and eliminate the former colonizer’s influence, concluded numerous Bilateral Investment Treaties (BITs) with TNCs.         BITs were designed to grant security to the capital-exporting states, which were almost always western countries, through clauses such as fair and equitable treatment, and national and most-favored-nation treatment, as well as rules governing expropriation.[4] They also appeared to equalize the position of the State and a TNC to a large extent, to facilitate FDIs. However, recent trends have shown that the attempted equalization has instead exacerbated the asymmetry between the two entities; the balance has tipped in favor of the private multi-nationals.[5] One of the outcomes of the proliferation of commercial BITs has been the exploitation of the environment and natural resources of the host states. Dine states that the capital-exporting states have invariably been the Northern economies that considered the newly decolonized or the Southern states as “pollution havens” due to their low environmental standards and loosely controlled environment laws.[6] Their activities often have a devastating impact on the lives of the local communities, sometimes even when no treaty obligation has been violated.  The thirty years of reckless oil operations of Chevron (formerly Texaco) in Ecuador led to severe contamination of the rainforest and rivers and took a toll on the health of the local communities.[7] Similarly, the extraction of water at an unsustainable rate by Coca-Cola in Kerala, India resulted in serious depletion and contamination of the water table, grievously affecting the climate of the district as well as the livelihoods of thousands.[8] Communities were met with similar environmental plight in Irian-Jaya region of Indonesia[9] and Sri Lanka,[10] owing to the reckless industrial activities of Freeport-McMoran. Likewise, there have been several cases involving severe damage to the environment caused by the activities of foreign investors, with little or no legal remedy available to the victims. This is unfortunate because exploitation of the environment frequently interferes with the fundamental human right to life,[11] by risking human health and livelihood. The explanation behind the lax structural mechanism to address environmental issue is not restricted to substandard environmental laws of developing nations and the rapidly increasing powers of the TNCs. The underdevelopment of international laws in relation to the environment is also responsible for their limited influence on foreign investments.

  1. International Environmental Law Regime:

The development of international environmental law regime has been relatively slow. In 1962, the United Nations General Assembly (UNGA) adopted a Resolution on “Economic Development and Conservation of Nature” which considered that economic development could jeopardize the environmental health of the developing countries.[12] Subsequently, another UNGA Resolution was adopted in 1968[13] to convene a UN Conference on Human Environment and another one in 1971.[14] But the major landmark in this arena was the first global conference on the environment held in Stockholm. The 1972 Stockholm Declaration laid out 26 principles, and 109 specific recommendations on international co-operation on the environment.[15] Principles 1, 3, 13-14, 22 are pertinent in the present context. The first Principle formulates a human right to and a responsibility to maintain a quality environment that is healthy and safe.[16] Principle 3, carrying the essence of sustainable development, stipulates that 'the capacity of the earth to produce vital renewable resources must be maintained and, wherever practical, restored or improved.’[17] Principles 13 and 14 stress on the importance of compatibility between development and environmental preservation.[18] Principle 22 calls for the further development of international law regarding liability and compensation for victims of such environmental damage.[19] Similarly, the 1992 Rio Declaration[20] reiterated some principles from Stockholm, while adding new ones like reduction and elimination of ‘unsustainable patterns of production and consumption’ (Principle 8),[21] and promotion of ‘a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation’ (Principle 12).[22] In addition, there have been many such agreements in the past, for example, the 1992 Convention on Biodiversity,[23] 1994 Convention to Combat Desertification,[24] and United Nations Framework Convention on Climate Change.[25] However, these agreements have exercised far lesser than a needed influence on the international investment regime. The case against Freeport-McMoran in Sri Lanka[26] referred to several principles from Rio and Stockholm Declarations to throw light upon the domestic laws applicable to regulate the activities of TNCs; but they did not prove compelling because they had neither been enacted in the Sri Lankan Parliament nor had they become a part of the domestic laws by being used in the Supreme Court judgments. Similarly, in the Irian-Jaya case,[27] the court rejected the capability of the Principles of Stockholm Declaration to become the basis of a cause of action of an environmental claim. There are only a handful of international law cases that have seriously considered the idea of sustainable development in their judgments.[28] Some writers have argued that the concept of sustainable development has a long way to go before it begins to be used full-fledged in judicial reasoning. [29] Considering the important developments of the last half-century, the growth of foreign investments and the expansion of the international activities of the corporation, which are often multinational … it may, at first sight appear surprising that the evolution of law has not gone further and that no generally accepted rules in the matter have crystallized on the international plane.[30]

 2. The Nature of BITs and the Need for a New Approach to Foreign Investments:

Exploring BITs:

Meanwhile, BITs are business-oriented treaties and are often disintegrated from other public policy objectives. The main objectives of these treaties are the promotion of foreign investment; protection of acquired rights; minimization of loss and risk in the case of expropriation; and dispute settlement.[31] Some may also include rules on: the right of 'entry' and the establishment of a company; fair treatment; most-favored-nation treatment and national treatment; repatriation of capital, profits and other assets; the conditions applying to expropriation and nationalization, including compensation standards, and to losses or damages due to war and revolution; due process of law; and dispute settlement through international arbitration.[32] These treaties continue to be based on the overly commercial template that had aided the newly decolonized States to attract FDIs from the western world and expedite their economic growth. According to a survey conducted by the OECD (based on more than half of the BITs in operation in 2011),[33] only about 8% mentioned environmental concerns. Only 1% contain provisions related to the recourse to environmental experts by arbitration tribunals, and 1.3% contain provisions that encourage the strengthening of environmental regulation, and cooperation.[34] The treaties reflect the limited popularity or even disregard of environmental degradation which, in most cases, is irreversible.  3.1% of the sample treaties provided against lowering environmental standards to attract investment.[35] Such a clause is present in NAFTA.[36] Although such clauses deter governments from relaxing environmental standards to compete for foreign investments, they do not impose any such obligations on the investors. Until 2015, Canada was the most sued developed country under the free trade tribunal (NAFTA).[37] More than half of these cases against Canada involve challenges to national legislation aimed at resource management and environment preservation within the country.[38] As a result, Canada has had to pay millions of dollars in compensation to TNCs and compromise on environmental regulation in its territory.

It is understandable that developing countries are often eager to attract FDIs for various reasons like improved technology, research and development and ultimately, poverty reduction. Under the current international investment regime, relaxed environment laws incentivize TNCs to invest. If the laws are strengthened, TNCs will simply go elsewhere.[39] However, under these circumstances, it is crucial to acknowledge that economic ‘growth,’ that comes at the expense of destroyed rainforests, irreversible contamination of water and air, unsustainable extraction from the water table and damage to the health and livelihood of thousands, is futile. The discussion becomes more pertinent in the light of the Paris Agreement 2015[40] which promotes green energy and low carbon emissions. The inclusion of the language of global threats such as climate change, ozone depletion, and declining biodiversity into investment treaties has been ridiculously slow. The Energy Charter Treaty 1994[41] is perhaps the only investment treaty that includes the updated set of environmental concerns, like waste disposal, distribution and use of energy, climate change, efficient exploration and air pollution.[42]

Towards Changing Mindsets:

One of the problems is with the way in which the international investment regime is understood while being largely represented through the BITs. It restricts the idea of investment to capital formation. It tends to overlook its effects on the lives of millions. The words of Judge Weeramantry from his separate opinion in the Danube case gain relevance here.[43] He refers to the excerpts from a sermon that says, “O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and living beings; thou art only the guardian of it ….”[44] The idea is that we are not the owners but the guardians of the planet. He further says, “The task of the law is to convert such wisdom into practical terms….”[45] The concept of sustainable development is the underlying idea of these words. It must be borne in mind while concluding investment treaties. The point is that regulation of global investments, which is bound to include technical concepts such as “right of entry,” “national standard” and “fair treatment,” must also extend beyond it. This is because investment may potentially entail irreversible and devastating effects on the environment.[46] It touches so many core social issues and responsibilities of host states that it simply cannot be managed from the perspective of capital alone; it involves private actors but it is not solely about private actor rights — it is also about state responsibilities to the larger society.[47] It follows that foreign investment must be viewed as a social institution instead of a private and commercial entity. In this context, Garcia discusses foreign investment agreements as “foreign investment transactions” and compares it with a freely bargained and mutually beneficial exchange in a trade transaction.[48] An investment transaction comprises of exchange of capital on one hand, and natural resources, labor, markets as well as legal rights on the other. It is important to ensure that each party truly consents to the terms of the transaction; otherwise the agreement could be equivalent to coercion, predation or exploitation. It is, undoubtedly, difficult to determine the degree of consent in investment transactions; but it is also easy to conclude that investment transactions are consensual. One of the reasons is that there are a whole range of formalities that must be fulfilled in order for the investment to be successfully deployed in a foreign state.[49] However, the history of the evolution of foreign investments together with the social resistance that it is often met with suggests not consent but a concession to certain terms. The more consensual the agreement is, the less likely it is to cause dissension. The reality of conflict and indeed some of the very risks investment law is designed to address (through expropriation law, or the full protection and security standard, for example), suggest that investment treaties and transactions cannot be assumed to be fully consensual.[50] The degree of consent in foreign investment transactions deserves a more detailed investigation which is beyond the scope of the essay. However, the core point is that a change of mindset about foreign investments must be the starting point of reform in the area.

Vinuales makes an interesting argument concerning changing the mindset.[51] Instead of making an environmental measure the object of evaluation concerning investment or trade law, one could assess the conformity of investment treaty provisions with the environmental discipline. It is commonly accepted that domestic environmental laws must be consistent with a state’s obligations under an international investment treaty, but this approach fails to address the possibility of the domestic environmental measure being induced by an international environmental obligation. In such a case, there can be no valid reason for investment obligations to take precedence over environmental law. Nevertheless, in CDSE v Costa Rica,[52] while determining the amount of compensation owed by the Costa Rican government to the foreign investor following the direct expropriation of a bio-diversity rich land, the tribunal ignored the international environmental obligation under which the government had apparently acted. The tribunal stated,

“The purpose of protecting the environment for which the Property was taken does not alter the legal character of the taking for which adequate compensation must be paid. The international source of the obligation to protect the environment makes no difference.”[53]

The tribunal’s disregard of the international environmental obligation of the State in the above case renders the judgment obscure. If the Costa Rican measure had been found to be directly connected to the international environmental regime, then there was no legal justification for international investment law to prevail over its environmental counterpart. Therefore, confining environmental considerations to the domestic level is not an innocuous step.[54] At the same time, it must be noted that it can be increasingly difficult to ascertain a domestic environmental measure to be directly connected to international environmental treaties. This is because the terms of these treaties are often defined vaguely. For example, Article 11 of the Convention on Biological Diversity requires parties to adopt economically and socially sound incentives for promoting conservation and sustainable use.[55] The generic nature and width of this provision make it difficult for the courts to directly link it to domestic legislation. Nonetheless, the tribunals must attempt to find a link between the two, either formally or informally, to avoid arbitrary decisions. One way of doing it is to determine whether the measure leads to the desired outcome intended by the environmental treaty; and if it is applied to both, foreign and domestic investments, equally. This is not an impossible task. In Chemtura v Canada,[56] the Canadian government adopted certain measures that resulted in the cancellation of lindane- based pesticides produced by the investor. Although the investor argued that the measure was a clear violation of NAFTA provisions, the court found a direct link between the questioned domestic provision adopted by the Environment Agency of Canada and Canada’s international environmental obligations. It stated,

“In the Tribunal's view, the evidence on the record does not show bad faith or disingenuous conduct on the part of Canada. Quite the contrary, it shows that the Special Review was undertaken by the PMRA in pursuance of its mandate and as a result of Canada's international obligations.”[57]

Therefore, the tribunals must attempt to view domestic environmental measure in light of international environmental obligations of the countries. This move is bound to avoid arbitrary decisions and promote a balance of interests between the parties in investor-state dispute settlement.  

 3. Reforming the Dispute Settlement Mechanism:

So far the discussion has been about the excessively commercial nature of BITs, the imbalance between the rights and responsibilities of the investors and the relatively subordinate position of environmental laws in investment tribunals. Another factor that could better equip the international investment order to effectively address environmental issues is reforming its dispute settlement mechanism. The bilateral nature of investment treaties allows states to keep the jurisdictional issue that arises at the time of a dispute to them, as part of their negotiation power. This often becomes problematic when disputes are left to be decided by the domestic courts of a state.  For example, Bhopal Gas Plant Disaster case involved the death of thousands of people and major destruction to the environment, which was caused due to the substandard safety provisions engaged by the American corporation.[58] The case was heard in Indian courts upon denial of jurisdiction by the US courts. The outcome of the case received considerable criticism by commentators who argued that the Indian judicial system was, at the time, not developed enough to provide adequate compensation to the victims.[59] Certainly, the domestic courts of developing countries generally lack the legal competence to handle disputes of an international character. At times, they are even incapable of imposing liability on a powerful TNC.  Another issue prevalent due to the absence of an exclusive international arbitral forum was illustrated in the Texaco/Chevron- Ecuador case.[60] The case, involving the serious destruction of rainforests due to investment activity, gave rise to legal proceedings in four different forums, only adding to the legal complexities. TNCs are amorphous. They are juridical persons, each composed of various enterprises, and answerable to legislations of different sovereign states. At the same time, these enterprises share common resources and agendas that are beyond the control of one state.[61] Therefore, exclusive regulation and protection of TNC activities at an international level is a more sensible option and must be the next course of action of the international community.

International Centre for Settlement of Investment Disputes (ICSID) tribunal has been a prominent development in the Investor-State jurisprudence. It has emerged to be the most popular arbitral forum for the settlement of investment disputes among States. Undoubtedly, establishment of ICSID as the exclusive forum for the settlement of investment disputes would help bring more certainty and uniformity in decisions in the investor-state jurisprudence. It has been advocated that a solid permanent arbitral forum like ICSID supported by a BIT monitoring system can transition the investment regime to a more uniform, certain and legitimate path.[62]  A BIT- monitoring system is a plausible option because it eliminates the need for large-scale multilateral negotiations on investment, which have been unsuccessful in the past. [63]  Bilateral treaties make it possible for both parties to tailor the terms according to their respective needs. A monitoring system will ensure that treaties are comprehensive, and subject to aspects of justice, rule of law and the broad idea of responsible investment. Currently, UNCTAD provides technical assistance to a number of countries to conclude BITs.[64] It is also committed to bring international policies in line with sustainable development. Therefore, UNCTAD can play a major role in the conclusion of more balanced BITs. Zeng points out towards the attainability of such incorporation into the BITs in the form of “balance”, “sustainable development” and “integration”.[65] It is equally important to note that ICSID tribunals are not void of structural challenges. Investor-state dispute settlement (ISDS) has been criticized for limited transparency and for being a closed system dominated by elite lawyers.[66] The establishment of a BIT monitoring system by participating states is bound to politicize the system. As a result, it is likely to make ISDS less secretive and more susceptible to reform. Unlike the current system, participation by environment and human rights expert must be encouraged for better ascertainment of facts and damages. These reforms are also being discussed in the negotiations of the TTIP agreement between the US and the EU. [67] A mechanism that already allows non-state actors such as MNCs to sue host States directly, should be normatively justified in imposing responsibilities on the same MNCs, and, where appropriate, finding them accountable for human rights violations and environmental destruction.[68] The proposed system is likely to balance the interests of the parties.

The essay has discussed the hybrid foundations of investment treaties and its detrimental impact on the environment. TNCs are powerful players in the international community, possessing important rights but little responsibility. Under the current system, the victims of environmental degradation caused by investment activity have limited and often ineffective legal remedies at their disposal. The rights and duties of people, states, and TNCs under international environment laws have exercised limited influence on investment disputes. Moreover, BITs which are often the foundations of international investments are too technical and business-oriented. Although some BITs are now incorporated with environmental language, the clauses impose very few or no responsibilities on the investors.  Investment impacts the lives of millions and must be viewed as a social allocation of resources. This is one of the reasons why an investment provision must be evaluated with respect to its conformity with international environment laws during dispute settlement. There is no legal justification for undermining environmental duties in order to fulfill investment obligations. The last point discussed in the essay is the necessary reform needed in the system of BITs and ISDS mechanism to better deal with investment disputes involving the environment and other public policy measures. Having recognized the prominence of the ICSID forum in international investment field, the essay has proposed the establishment of ICSID as the exclusive forum for international investment dispute settlement accompanied by a BIT supervising system. Such a system, apart from bringing about certainty and transparency in the system, can also potentially make BITs more sensitive to environmental preservation and other public policy issues.

 

[1] Oxfam, Rigged Rules and Double Standards: Trade, Globalisation and the Fight against Poverty (Oxfam 2002) 177, available at http://cftn.ca/sites/default/files/AcademicLiterature/Rigged%20rules%20and%20double%20standards%20Oxfam.pdf

[2] UNCTAD, World Investment Report 2016: Investor Nationality: Policy Challenges (UNCTAD, Division on Investment and Enterprise,  UNCTAD/WIR/2016)

[3] See Nico Schrijver, International Investment Law: From Nationalism to Pragmatism in Sovereignty over Natural Resources (Cambridge University Press 2009) 173-181; F. Garcia, L. Ciko, A. Gaurav, K. Hough, ‘Reforming International Investment Treaty Regime: Lessons from International Trade Law (2015) 18 Journal of International Economic Law 861, 865-67

[4] Garcia, Ciko, Gaurav, Hough (n 2) 866.

[5] See Z. Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 British Yearbook of International Law 151, 160-181

[6] See Janet Dine, Companies, International Trade and Human Rights (Cambridge University Press 2005) 12

[7] See www.amazonwatch.org/amazon/EC; https://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador both accessed 15 Sept 2017

[8] See http://www.thehindu.com/news/national/kerala/plachimada-cries-foul-over-compensation-bill-deadlock/article7494255.ece  accessed 15 Sept 2017

[9] Beanal  v. Freeport-McMoRan, Inc., 969 F. Supp. 362 (E.D. La. 1997)

[10] Bulankulama v v. Min. of Industrial Development (Eppawala case), S.C. Application No. 884/99 (F/R)

[11] United Nations General Assembly, Universal Declaration of Human Rights, Art. 3; available at http://www.un.org/en/universal-declaration-human-rights/ accessed 15 Sept 2017

[12] GA Res. 1831 (XVII) of 18 Dec 1962, Economic Development and Conservation of Nature, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1831(XVII)

[13] GA Res. 2398 (XXIII) of 3 Dec 1968, Problems of Human Environment; available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/243/58/IMG/NR024358.pdf?OpenElement

[14] GA Res. 2849 (XXVI) of 21 Dec 1971, Development and Environment; available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/328/65/IMG/NR032865.pdf?OpenElement

[15] UN Doc. A/CONF.48/14/Rev.l, 16 June 1972; available at http://www.un-documents.net/aconf48-14r1.pdf

[16] Nico Schrijver, Permanent Sovereignty, Environmental Protection and Sustainable Development in Sovereignty over Natural Resources (Cambridge University Press 2009) 120, 123

[17] Ibid 124

[18] ibid

[19] Ibid

[20] UN Doc. A/CONF.151/26 (Vol. I), 12 Aug1992; available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm accessed 15 Sept 2017

[21] Ibid Principle 8

[22] Ibid Principle 12

[23] Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD)

[24] United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 17 June 1994, entered into force December 1996) 1954 UNTS 3 (UNCCD)

[25]United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC)

[26] Bulankulama v. Min. of Industrial Development (n 8)

[27] Beanal v. Freeport-McMoRan (n 7) 383

[28] The Danube Case/Hungary v Slovakia 1997 ICJ Reports 7.

[29] V. Lowe, ‘Sustainable Development and Unsustainable Arguments’ in A. Boyle & D. Freestone (eds.) International Law and Sustainable Development: Past Achievements and Future Challenges (OUP 1999) 19, 26.

[30] Barcelona Traction ICJ (1970) 3, para 46-7

[31] N Schrijver (n 2) 191

[32] ibid

[33] Gordon, K. and J. Pohl (2011), “Environmental Concerns in International Investment Agreements: A Survey”, OECD Working Papers on International Investment, 2011/01, OECD Publishing. Available at http://dx.doi.org/10.1787/5kg9mq7scrjh-en

[34] ibid

[35] ibid

[36] Article 1114, Part 5 Chapter 11 North American Free Trade Agreement

[37] Huffington Post Canada, available at http://www.huffingtonpost.ca/2015/01/14/canada-sued-investor-state-dispute-ccpa_n_6471460.html accessed 15 Sept 201

[38] See AbitibiBowater Inc. v Govt. of Canada ICSID Case No. UNCT/10/1; Saint Marys VCNA, LLC v. Government of Canada, available at https://www.italaw.com/cases/1196 accessed 15 Sept 2017

[39] See Oxfam (n 1) 186-88; the situation is worsened by the incompetent domestic regulating authorities of developing countries.

[40] Paris Agreement Chapter XXVII 7.d. (adopted 12 December 2015, entry into force 4 November 2016) within UNFCCC (n 24)

[41] Energy Charter Treaty (entered into force 16 April 1998) 2080 UNTS 95 (ECT)

[42] Gordon, K. and J. Pohl (n 28) 24

[43] The Danube Case/Hungary v Slovakia 1997 ICJ Reports 7

[44] Ibid 88, available at http://www.icj-cij.org/files/case-related/92/092-19970925-JUD-01-03-EN.pdf ; The words of Judge Weeramantry were also quoted in Bulankulama v. Min. of Industrial Development (n 8)

[45] ibid

[46] Beanal v. Freeport-McMoRan, Inc. (n 8)

[47] See Garcia, Ciko, Gaurav, Hough (n 2) 874

[48] Frank J. Garcia, Global Justice and International Economic Law: Three Takes (New York: Cambridge

University Press, 2014) 205-272

[49] For example, licensing, hiring employees, shipping the output, etc.

[50]  See Garcia, Ciko, Gaurav, Hough (n 2) 880

[51] Jorge E. Vinuales, Environmental Regulation of Foreign Investment Scheme under International Law (2012) in P.M. Dupuy and J. E. Viñuales (eds.), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards (Cambridge: Cambridge University Press), 2012.

[52] Compañia del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1

[53] Ibid para 71

[54] J. E. Vinuales (n 47) 283

[55] Convention on Biological Diversity (n 22)

[56] Chemtura Corporation (formerly Crompton Corporation) v. Government of

Canada, UNCITRAL, Award (2 August 2010)

[57] Ibid para 138

[58] Union Carbide Corporation v Union of India 1990 AIR 273

[59] See Sheila Jasanoff, ‘Bhopal’s Trial of Knowledge and Ignorance’ (2007) 98 University of Chicago Press Journals 344, 346

[60] Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23

[61] S.R. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal 443, 488

[62]Efraim Chalamish, ‘The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement’(2009) 34(303) Brooklyn Journal of International Law 354;

[63] Failure of OECD negotiations on a Multilateral Agreement on Investment (MAI) and exclusion of investment issues during the WTO Doha Round; see S. Zia-Zarifi, The Multilateral Agreement on Investment: Special Report, 9 Y.B. Int’l. Env. L. 345 (1999); General Council, Doha Work Programme, WT/L/579 (Aug. 1, 2004).

[64] United Nations Conference on Trade and Development, http://unctad.org/en/pages/DIAE/DIAE.aspx accessed 22 September 2017

[65] Z. Huaqun, ‘Balance, Sustainable Development and Integration: Innovative Path for BIT Practice’,

17 Journal of International Economic Law 299 (2014) 329

[66] Yannaca-Small, K.,“Improving the System of Investor-State Dispute Settlement” (2006) OECD Working Papers on International Investment, 2006/01, OECD Publishing. http://dx.doi.org/10.1787/631230863687; Joost Pauwelyn, ‘The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus’(2015) 109 American Journal International Law 761

[67] Transatlantic Trade and Investment Agreement, see http://trade.ec.europa.eu/doclib/press/index.cfm?id=1234 accessed 22 September 2017

[68] E. Chalamish (n 61) 351

Bibliography

  1. Primary Sources:

             Cases:

  1. Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362 (E.D. La. 1997)
  2.  Bulankulama v v. Min. of Industrial Development (Eppawala case), S.C. Application No. 884/99 (F/R)
  3. Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23
  4. The Danube Case/Hungary v Slovakia 1997 ICJ Reports 7
  5. AbitibiBowater Inc. v Government of Canada ICSID Case No. UNCT/10/1
  6. Saint Marys VCNA, LLC v v. Government of Canada, available at https://www.italaw.com/cases/1196 accessed 15 Sept 2017
  7. Compañia del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1
  8. Union Carbide Corporation v Union of India 1990 AIR 27

United Nations Documents:

1. United Nations General Assembly, Universal Declaration of Human Rights, Art.3; available at http://www.un.org/en/universal-declaration-human-rights/ accessed 15th September 2017

2. GA Res. 1831 (XVII) of 18 Dec 1962, Economic Development and Conservation of Nature, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1831(XVII)

3.     GA Res. 2398 (XXIII) of 3 Dec 1968, Problems of Human Environment; available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/243/58/IMG/NR024358.pdf?OpenElement

4. GA Res. 2849 (XXVI) of 3 Dec 1968, Problems of Human Environment, available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/243/58/IMG/NR024358.pdf?OpenElement

5. UN Doc. A/CONF.48/14/Rev.l, 16 June 1972; available at http://www.un-documents.net/aconf48-14r1.pdf

6. Article 1114, Part 5 Chapter 11 North American Free Trade Agreement

7. Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD)

8. United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 17 June 1994, entered into force December 1996) 1954 UNTS 3 (UNCCD)

9. United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC)

 

  1. Secondary Sources:

            Books:

  1. Oxfam, Rigged Rules and Double Standards: Trade, Globalisation and the Fight against Poverty (Oxfam 2002) 177, available at http://cftn.ca/sites/default/files/AcademicLiterature/Rigged%20rules%20and%20double%20standards%20Oxfam.pdf

 

  1. Dine J., Companies, International Trade and Human Rights(Cambridge University Press 2005) 12

 

  1. Schrijver N., Sovereignty over Natural Resources (Cambridge University Press 2009)

 

  1. Garcia F. J., Global Justice and International Economic Law: Three Takes (New York: Cambridge University Press, 2014)

 

  1. Puvimanasinghe S.F., Foreign Investment, Human Rights and the Environment: A Perspective from South Asia on the Role of Public International Law for Development (BRILL 2014)

 

  1. Dupuy P.M. and Viñuales J.E. (eds.), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards (Cambridge: Cambridge University Press 2012)

 

  1. Boyle A. & Freestone D. (eds.) International Law and Sustainable Development: Past Achievements and Future Challenges (OUP 1999)

            Articles and Working Papers:

  1. Garcia F., Ciko L., Gaurav A., Hough K., ‘Reforming International Investment Treaty Regime: Lessons from International Trade Law (2015) 18 Journal of International Economic Law 861

 

  1. Johns F., The Invisibility of Transnational Corporation: An Analysis of International Law and Legal Theory (1993-94)) 19 Mel U. L. Rev. 893

 

 

  1. Gordon, K. and Pohl J. (2011), “Environmental Concerns in International Investment Agreements: A Survey”, OECD Working Papers on International Investment, 2011/01, OECD Publishing. Available at http://dx.doi.org/10.1787/5kg9mq7scrjh-en
  2. Huaqun Z., ‘Balance, Sustainable Development and Integration: Innovative Path for BIT Practice’ 17 Journal of International Economic Law 299 (2014)

 

  1. Chalamish E., ‘The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement’, (2009) 34(303) Brooklyn Journal of International Law 354;

 

  1. Zia-Zarifi S., The Multilateral Agreement on Investment: Special Report, 9 Y.B. INT'L. ENV. L. 345 (1999).

 

  1. Ratner S.R., ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal 443

 

  1. Jasanoff S., ‘Bhopal’s Trial of Knowledge and Ignorance’ (2007) 98 University of Chicago Press Journals 344

 

  1. Yannaca-Small, K., “Improving the System of Investor-State Dispute Settlement” (2006) OECD Working Papers on International Investment, 2006/01, OECD Publishing. http://dx.doi.org/10.1787/631230863687

 

  1. Pauwelyn J., ‘The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus’(2015) 109 American Journal International Law 761

 

           Websites:

  1. See amazonwatch.org/amazon/EC; https://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador both accessed 15 Sept 2017
  2. http://www.thehindu.com/news/national/kerala/plachimada-cries-foul-over-compensation-bill-deadlock/article7494255.ece accessed 15 Sept 2017
  3. Huffington Post Canada, available at http://www.huffingtonpost.ca/2015/01/14/canada-sued-investor-state-dispute-ccpa_n_6471460.html accessed 15 Sept 2017
  4. http://unctad.org/en/pages/DIAE/DIAE.aspx accessed 22 September 2017
  5. see http://trade.ec.europa.eu/doclib/press/index.cfm?id=1234 accessed 22 Sept 2017

Picture Credit: https://greentumble.com/ 

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Written By Ashita Jain

Law student, University of Birmingham

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