Credits: Gustavo Becker
By Gustavo Becker
As academics and practitioners in the field of business and human rights, we frequently encounter the impacts of international investment law on human rights. For instance, the Chevron vs. Ecuador case illustrates how international investment law can be leveraged against the rulings of domestic courts that seek to hold multinational corporations accountable for human rights abuses.
This case started when Ecuadorian claimants filed an action against Texaco in the Southern District of New York alleging that the company's operations in Ecuador between 1964 and 1992 caused extensive negative human rights impacts for local communities. The New York court declined to hear the case, which was subsequently brought to the Ecuadorian judiciary. The dispute in Ecuador culminated in Chevron (which had acquired Texaco) being ordered to pay US$9.5 billion in compensation (See Lorenzo Pellegrini, et al., “International Investment Agreements, Human Rights, and Environmental Justice: The Texaco/Chevron Case from the Ecuadorian Amazon”, Journal of International Economic Law, 23, 2020, 456, citing: United States Court of Appeals, Second Circuit., Aguinda ‘B’ ‘C’ ‘D’ v. Texaco Inc., 16 August 2002). Subsequently, Chevron initiated an investor-state arbitration under the Ecuador – USA Bilateral Investment Treaty alleging that such a judgment breached standards of investor protection, including fair and equitable treatment and a minimum standard of treatment. The arbitral tribunal decided in accordance with such allegations and ordered that Ecuador had to declare the judgment unenforceable.
This intersection between international investment law and human rights continues to offer new perspectives for scholarly analysis. This was the primary reason for organising the Symposium "Human Rights Reactions to Economic Laws," held at Tilburg University on 19 June 2024 with the institutional support of the Netherlands Network for Human Rights Research (“NNHRR”). Initial conversations between Dalia Palombo, Debadatta Bose, and myself regarding potential activities for the Business and Human Rights Working Group of the NNHRR focused on international investment law and human rights. These discussions evolved into a broader initiative, leading us to issue a call for abstracts on themes related to human rights and economic laws more broadly understood.
During our preparatory discussions, we frequently encountered the blurred lines that expose the fallacy of traditional dichotomies suggesting a division between economic laws and human rights, as if they belong to separate areas of concern and application. For instance, the divisions between private and public law, national and international regulations, and corporate versus state-based governance have become increasingly ambiguous (See John Ruggie, ‘Global Governance and “New Governance Theory”: Lessons from Business and Human Rights’ (2014) 20 Global Governance: A Review of Multilateralism and International Organizations). This blurring is closely linked to the growing intersections between human rights issues and economic laws, such as the rapid evolution of tort law to address supply chain-related human rights abuses (See Liesbeth Enneking, Foreign Direct Liability and Beyond: Exploring the role of tort law in promoting international corporate social responsibility and accountability, Eleven International Publishing, 2012), and human rights demands brought in investor-state dispute settlements (ISDS), as exemplified by Chevron v Ecuador. This raised a central question for the symposium: “How are human rights influencing economic laws, and how are these laws, in turn, shaping human rights?”
The selected abstracts were organised into three thematic panels, as described below.
Panel I, "(Re)visualising Structures," explored the foundational relationship between business and human rights. Carlos Portugal Gouvêa critiqued and called for a re-evaluation of the current Business and Human Rights framework, particularly the United Nations Guiding Principles on Business and Human Rights. Santiago Zuleta Rios analysed capitalism's adverse impact on human rights in La Guajira, a Colombian region where multinationals’ activities negatively impact Indigenous peoples’ rights. Lastly, Elena Corcione highlighted the state's critical role in protecting human rights within global value chains through more robust regulation and enforcement.
Panel II, "(Re)visualising Finance," examined human rights reactions to the financial sector. Daniel Litwin discussed the EU's sustainable finance efforts urging more integrated approaches. Jennifer de Lange dealt with the gradual incorporation of human rights into finance using the fable of the hare and the tortoise, stressing steady progress. Ege Okakın Erbaş discussed the potential of legal supervision and good administration in the EU financial markets to uphold human rights, and Gabriel Araujo highlighted the economic and human rights benefits of empowering women in Latin America.
Panel III, "(Re)visualising Property," focused on the interplay between property rights, economic laws, and human rights. Marlies Hesselman examined how international economic law affects the right to sustainable energy, advocating for policies that align with international human rights norms. Dalia Palombo discussed the impact of climate change on corporate property rights, suggesting a need to re-evaluate legal frameworks in order to balance corporate and environmental interests. Elena Izyumenko highlighted the European Court of Human Rights' influence on intellectual property law, and Daniel Lucas Dejavite de Biagio analysed how economic laws limit the participatory rights of marginalised communities.
The symposium concluded with a keynote speech by Jean Ho (National University of Singapore), titled “Our Misguided International Economic Law.” Ho provided a critical analysis of the current state of international economic law, arguing that its failure to address (or even the exacerbation of) human rights issues can be traced back to the origins of international investment agreements and the development of ISDS from the initiatives of the then World Bank.
The "Human Rights Reactions to Economic Laws" symposium aimed to challenge conventional thinking and propose innovative solutions. We were delighted to bring together diverse perspectives and foster critical discussions, underscoring the need for multidisciplinary and creative approaches to better integrate human rights protections into economic law practices. What became clear during the symposium was that all topics related to the intersection between human rights and economic laws are interconnected. Authors were able to reflect on their topics through presentations that initially seemed quite unrelated. Additionally, although current business and human rights events and publications often focus on mandatory due diligence laws due to their obvious relevance to the field, we all benefit from broader approaches, which invigorate our thinking and bring forth new ideas.
To continue the discussions initiated at the symposium, we are pleased to announce a post-symposium blog series featuring contributions from the speakers. More information about this series will be posted here soon.
* This blog post was created with contributions from Dalia Palombo and Debadatta Bose.
Bio:
Gustavo Becker is a Doctoral Researcher at the Luxembourg Centre for European Law (formerly the Max Planck Institute Luxembourg for Procedural Law). He is pursuing a Joint Doctorate from the University of Amsterdam and the University of Luxembourg, under the supervision of Prof. Ingo Venzke and Prof. Hélène Ruiz Fabri. His research centres on the use of private dispute resolution as a means of access to remedy for victims of transnational business-related human rights abuses, and its implications for the realisation of the right to remedy. His academic background includes degrees from both Dutch and Brazilian institutions, including an LL.M. in Human Rights (with honours) from Maastricht University, where he was awarded the UM Holland-High Potential Scholarship. He also holds an MSc in Law and Sustainability (summa cum laude) and an LLB (cum laude) from the Federal University of Santa Catarina (Brazil). In 2019, he was granted a full scholarship by The Hague Academy of International Law Curatorium.