Research On Human Right Protection In International Investment Treaty

In recent decades,while foreign investors' direct investment has promoted the economic development of the host country,it has also repeatedly violated the human rights of stakeholders in the host country.International investment treaty mainly protects investment liberalization and investor interests,and does not stipulate human rights obligations of investors.As a result,when investors and host countries submit investment disputes to international arbitrations,the arbitral tribunals cannot make an award that requires investors to take responsibility for human rights violations.The ruling assumes corresponding responsibility.The disregard of human rights in international investment treaty has drawn widespread criticism from the international community,and international investment treaty urgently needs reforms that are conducive to protecting human rights.This article first briefly introduces the historical development of human rights and the protection of human rights under international law.Human rights are protected by international law and everyone has all human rights.Human rights are universal,indivisible,equal and interdependent.The UN Universal Declaration of Human Rights and relevant UN human rights conventions set minimum human rights standards.In addition to the human rights protected by the international human rights standards,the human rights protected by international investment treaty also include human rights provisions in other treaties or domestic laws of parties to international investment treaties.As the current international investment substantive law generally do not provide for human rights obligations of investors,and the procedural law exclude third-party human rights claims,the current international investment treaty only protects the interests of investors,but insufficiently protects human rights.In fact,international human rights law and international investment treaty are both part of international law,and they are interrelated.The objectives of international investment treaty protection are twofold,with the primary goal of promoting national development and the secondary goal of protecting investors.Therefore,international investment treaty not only protects the interests of investors,it is more important to protect the economic development of the host country and not to infringe human rights.The status of international investment treatys that protect investors' interests too much and ignore human rights must be changed.Subsequently,this paper analyzes the insufficient performance of international investment treaty in protecting human rights from two perspectives: the international investment substantive law and the procedural law.The main provisions of the international investment substantive law,such as investment definition provisions,collection provisions,fair and fair treatment provisions,comprehensive protection andsecurity provisions,national treatment provisions,most-favored-nation treatment provisions,and umbrella provisions,all reflect the full protection of investors and constitute a variety threat to human rights.Relevant investor-state investment dispute arbitration procedures exclude third-party claims of human rights.The arbitration procedures are lack of transparency,inadequate appeal mechanisms and local relief measures.The main reason for the insufficient protection of human rights in international investment treaty is that the legislative orientation of international investment treaty is mainly to protect the rights and interests of investors and ignore human rights,which ultimately leads to the general neglect of human rights interests in investment dispute arbitral awards.The fact that international investment treaty only protects the interests of investors and ignores human rights has been widely criticized by the international community.In order to actively respond to the concerns of the international community about sustainable development and human rights,both the international investment substantive law and procedural law have reformed accordingly.In terms of international investment substantive law,developed countries such as the United States and the European Union have added sustainable development and protection of human rights to their BIT templates,investment treaties,and investment chapters in trade treaties,with particular emphasis on the protection of the environment and labor rights.In addition,the investment treaties signed by many other countries or the investment chapters of international trade treaties also provide for the protection of human rights.However,the current international investment treaty generally does not directly stipulate the human rights obligations of investors.Therefore,the relevant countries usually use exception provisions in the international investment treaties to protect their rights to exercise supervision over foreign investors in order to protect the public interest and thus human rights.In addition,in order to formulate fair and reasonable international investment treaties,some countries have tried to conduct human rights impact assessments and encourage stakeholders to participate in it.With regard to international investment procedure law,the investment treaty signed by each country,the investment chapter of the trade treaty,and the provisions on the settlement of investment disputes,as well as the rules of special arbitration procedures,increase the transparency of investment arbitration procedures and / or the content of third parties' participation in arbitration procedures to facilitate the public who can obtain the information on the case of relevant investment disputes in time,and the third party submits written opinions to the arbitral tribunal on human rights issues of concern.In the course of arbitration practice,quite a few arbitral tribunals have made the host country's favorable interpretation of the supervisory measures taken by the host country to protect its public interests and human rights.In addition,in Urbaser v.Argentina and David Aven v.Costa Rica,the arbitrators clearly stated that investors should abide by their obligations underinternational law and respect human rights,but because investors' human rights obligations were not stipulated in international investment substantive law,the relevant arbitral tribunals can't make the decisions that require investors to assume the obligation for the violation of Human rights.Therefore,the international human rights obligations of investors are stipulated in international investment treaty,and the disputes between investors and stakeholders caused by investors' violations of human rights are brought to international arbitration are the feasible ways to solve the problem that the current international investment treaty only protects the rights and interests of investors and ignores human rights.With the continuous deepening of reform and opening up,China has made great achievements in the promotion and protection of human rights.China's favorable investment environment has also attracted many foreign investors to invest in China.In2018,foreign direct investment in China amounted to US $ 134.97 billion.With the implementation of the "Go Global" strategy and the implementation of the "Belt and Road" initiative,China's foreign direct investment in 2018 was US $ 143.04 billion,ranking second in the world.Therefore,in the process of China's conclusion of an investment treaty,China has changed from being a capital importing country in the past to becoming both a capital importing country and a capital exporting country.In order to better protect human rights,China should improve exception provisions in investment treaties and stipulate the content of human rights obligations of investors in domestic laws or contracts,so as to provide a legal basis for future regulatory measures against investors' violations of human rights.In addition,China actively promotes the establishment of a human rights impact assessment mechanism and an international arbitration mechanism for human rights disputes between investors and stakeholders,and contributes China's strength and wisdom to the formulation of a fair and equitable international investment treaty to protect human rights.Through the full text of the discussion,the following conclusions are drawn: First,the status quo of international investment treaty that protects investors' interests too much and neglects human rights must change.Second,under the existing international investment treaty system,the use of exception provisions in international investment treaties is an effective means of protecting human rights.Third,before countries sign investment treaties,human rights impact assessments will become an effective way to protect human rights.Attention should be paid to ensuring the transparency of human rights impact assessment procedures,ensuring the right of public participation,and follow-up monitoring.Fourth,it is feasible to directly stipulate the human rights obligations of investors in international investment treaties.Establishing a corresponding arbitration system between stakeholders and investors is conducive to promoting investors to fulfill their human rights obligations and thus protecting the human rights of stakeholders.Finally,China's greatestachievements in reform and development have become China's most powerful guarantee for the protection of human rights through investment treaties.China should have the confidence and determination to promote the protection of human rights in the process of formulating and implementing international investment treatys.