UN Treaty on Business and Human Rights or Investor-State Arbitration? A Sober Answer for the Better Protection of Human Rights

Abstract

Summary The concept of legal personality has been and is currently the object of studies. The doctrine is vast and made of many convincing interpretations. For this reason, an excursus of the main theories will be outlined in the light of recent events which support a specific theoretical orientation. The study will give a clear understanding of how international legal personality applies to Non-State Actors. After removing minor doctrines from the equation, those that remain will be highlighted, and compared with how the same matter is de facto faced in international investment law. The relationship between international investment law and international human rights law with regards to the role played by investors will be scrutinised. In investment arbitration, the position of the State and the investor is equal. This leads to the impression that international investment law is the realm in which to ensure more protection for the victims of human rights violations by business enterprises. So, if respect for international human rights is incorporated into the investment arbitral dispute procedures it could protect and or prevent human rights abuses. The opposite approach is to view business activities as objects. In this case, the role to regulate companies and protect stakeholders will be only on the state, and companies will be indirectly obliged to respect human rights. Therefore, the current draft of the binding treaty on business and human rights will be taken into consideration. The analysis of the two approaches will highlight which represents the more stable option for preventing, protecting and remedying human rights abuses by business enterprises. Specifically, the main questions to be answered are: is the international investment law’s field the future for more effective protection of human rights violations coming from business activities? Or is it a states’ prerogative to set and impose rules to prevent and protect such violations?