At the crossroads of international human rights law and international investment law: reflection on the right to development in the exercise of expropriation
Date
2021
Authors
Kim, Young Jae
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Abstract
Given the current legitimacy crisis of international law, particularly the international law of
investment owing to fragmentation and the negative impact of unfettered economic
development on the environment and human rights, competing claims between North and
South, sovereign states and multinational corporations, and sovereign states and their nationals
over development and its benefits must be effectively and legitimately reconciled before any
strategy to promote development can be implemented. In this respect, the human right to
sustainable development, which this thesis introduced, provides a framework in which the
potential competing claims of economic value and human rights value can be reconciled.
This thesis considers the interplay of international development law, international human rights
law and international investment law, by reference to the evolution of a right to sustainable
development. In particular, it focuses on how the international investment law regime has
evolved to incorporate human rights and sustainable development, by examining expropriation
as a case study.
The thesis traces the concept of development as it underlines international development law,
and shows how it has moved from ‘orthodox economic development’ to ‘modern human
development’ by means of the evolution of the human right to sustainable development. It
proceeds to contemplate the content of this human right to sustainable development, with a
view to demonstrating its relevance to international investment law. Thereafter, it shows how
international investment law has evolved over time, from being narrowly focused on upholding
foreign investors’ interests and rights, to taking into account international human rights and the
human right to sustainable development. As a concrete example of this shift in international
investment law, the thesis then conducts a case study of expropriation, which illustrates the
increased interaction between the three clusters of international law. In particular, the protection
of foreign investors’ rights and host states’ rights to regulate foreign investment for the purpose
of ensuring international human rights and sustainable development are explored through
leading cases in international investment tribunals.
In conclusion, it is argued that the legitimacy of the international investment law regime can
be enhanced through continuing efforts of the international community to harmonise the three
clusters of international law within the human right to sustainable development
Description
A thesis submitted to the in fulfilment of the requirements for the degree of Doctor of Philosophy to the Faculty of Commerce, Law and Management, School of Law, University of the Witwatersrand, Johannesburg, 2021