Open call for input for Working Group on Business and Human Rights’ report on “Human Rights-compatible International Investment Agreements (IIAs)”

The United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises (“Working Group”) will present a report to the UN General Assembly in October 2021 on “Human Rights-compatible International Investment Agreements (IIAs)”. IIAs here mean bilateral investment treaties as well as investment chapters in trade agreements negotiated at a bilateral or regional level. 

The report aims to provide practical guidance to States in negotiating new IIAs or reforming old IIAs in line with the UN Guiding Principles on Business and Human Rights (UNGPs). In particular, the report will unpack Guiding principle 9, which provides: “States should 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.”

The report will cover all three pillars of the UNGPs in the context of IIAs: 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; the responsibility of investors to respect all internationally recognized human rights; and the role of IIAs in providing access to remedy to individuals and communities affected by investment.

This report will build on work previously undertaken by the Working Group as well as other organisations such as UNCTAD, OECD and the South Centre concerning various dimensions of the interface between IIAs and human rights. It will also make connections with Working Group’s previous reports addressing issues such as human rights due diligence, policy coherence, gender dimensions, and access to remedy. 

In this context, the Working Group seeks the input of all stakeholders (including international organisations, national human rights institutions, civil society organisations, research centres, policy makers, academia, lawyers, law firms, arbitrators, investors, industry associations, trade unions, human rights defenders, and indigenous peoples) to the questions below.Please feel free to respond to all or selected questions as per expertise, relevance or focus of work. A separate questionnaire has been sent to all Member States. Responses received will inform the above report of the Working Group.

Please email your response (maximum 2,500 words) to wg-business@ohchr.org by
31 March 2021, indicating “IIAs QUESTIONNAIRE” in the subject line.

Unless indicated otherwise, all the responses received will be posted on the Working Group’s website at https://www.ohchr.org/EN/Issues/Business/Pages/IIAs.aspx 

Questions

State duty to protect human rights

1. Are you aware of any regulatory framework at the national or regional level requiring an integration of human rights provisions in IIAs?
2. What mechanisms or processes should exist at the State level (e.g., inter-ministerial committee, ex ante human rights impact assessment) to assess and ensure that IIAs do not impact negatively the protection of human rights and the environment?
3. Do new generation IIAs adequately preserve domestic regulatory space available to States to meet their international human rights obligations? If not, what further changes in IIAs are desirable?
4. How could old IIAs be reformed efficiently to make them compatible with States’ international human rights obligations?
5. How can States harness the potential of IIAs to accomplish important policy objectives such as achieving gender equality, protection of human rights and the environment, mitigation of climate change and realising the Sustainable Development Goals? Please provide examples if possible.
6. What special mechanisms or processes could be built-in in IIAs to safeguard human rights in cases where investment may take place in special economic zones or in conflict and post-conflict settings?
7. Is the current Investor-State Dispute Settlement (ISDS) regime “fit for the purpose” to address complaints related to human rights abuses linked to investment projects? If not, what are the alternatives for a legitimate, transparent and effective dispute resolution system to address such complaints?
8. Does the COVID-19 pandemic offer any lessons for reform of IIAs and/or ISDS? Please provide examples.

Investors’ responsibility to respect human rights

9. Are human rights provisions in existing IIAs effective in encouraging investors to respect all internationally recognised human rights? If not, what should be done to strengthen their efficacy?
10. Should IIAs include legally binding human rights responsibilities of investors to prevent and mitigate potential negative impacts of their investment on individuals or communities? What measures and/or mechanisms could ensure that these provisions are complied with by investors in practice?
11. Should IIAs require investors to conduct a gender-responsive human rights due diligence (HRDD) or environmental and human rights impact assessment prior to, as well as during, their investment? If so, how could such processes ensure meaningful participation of impacted communities, particularly marginalized groups and individuals?
12. How could IIAs encourage cohesive and human rights-compatible business practices (e.g., investors not lobbying States to lower human rights standards)?

Access to remedy

13. How do IIAs undermine the ability of States and/or affected communities to hold investors accountable for human rights abuses linked to investment-related projects?
14. Should IIAs provide mechanisms to allow individuals or communities affected by investment-related projects to seek effective remedy against investors? If so, what should the nature of such mechanisms and where should they be located (e.g., in host or home countries)?
15. Have counter-claims brought by States against investors been effective in addressing human rights abuses linked to their investment? If yes, please provide details.
16.  What is your experience, if any, with filing amicus briefs before ISDS or dispute settlement processes? Does this process provide an effective opportunity for affected individuals and communities to seek remedy?
17. Are you aware of operational-level grievance mechanisms established by investors to address human rights concerns related to their investment? If so, are these mechanisms effective in terms of both process and remedial outcomes? What role could IIAs play in strengthening such mechanisms?

Good practices and other comments

18. Are there any good practices regarding the integration of human rights issues in IIAs that you would like to share with the Working Group? Any other comments or suggestions about the forthcoming report are also welcome.