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Reconciling Environmental Health and Investors’ Rights in International Investment Law

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Abstract:

Environmental health is an increasing concern of both industrialised and developing countries. As environmental hazards seriously threaten health, the question is how to reconcile the need to promote environmental health with the need of economic development. As foreign direct investment is generally considered an essential means to promote development, this study will investigate the relationship between international investment law and the protection of environmental health. Are investment treaties compatible with states’ obligations to protect public health, of which environmental health constitutes an important dimension?

At the substantive level, investment treaties provide an extensive protection to investor's rights in order to encourage foreign direct investment (FDI). Thus, a potential tension exists when a State adopts regulation interfering with foreign investments, as regulatory measures may be deemed to be a form of indirect expropriation. At the procedural level, investment treaties offer investors direct access to an international arbitral tribunal. Thus, foreign investors can directly challenge national measures aimed at protecting environmental health and seek compensation for the impact on their business of such regulation. This chapter will explore the conflict areas between investment treaty provisions and environmental health through an analysis of the recent arbitral jurisprudence. This survey shows that the regime established according to investment treaties does not strike an appropriate balance between the different interests concerned and that international law has not yet developed any machinery for the protection of environmental health through investment dispute settlement. The author will thus propose a series of policy options to reconcile the different interests concerned.

Environmental health is a working definition which bridges the gap between environmental law and public health. There are two main reasons to deal with environmental protection from a public health perspective. First, such a perspective confers a degree of cogency and definition to environmental concerns. If the recognition of a distinct human right to environment remains controversial, there has been a growing recognition in public health law that the protection of the environment is a condition for the full enjoyment of health. Conceptualizing environmental health as a component of public health determines a paradigm shift that allows the translation of environmental concerns into the language of the state's concerns to protect public health. The protection of public health constitutes an essential function of state sovereignty. As one of the three constitutive elements of the state is its population – in addition to its territory and its organization – it is clear that the preservation of its population is an essential function of the state. Without such protection, the very existence of the state would be endangered. Protecting public health is a primary duty of States which arises from statutory, constitutional and international law. In sum, one may argue that the right/duty of the state to protect its population is a non-contested concept.

Document Type: Research Article

Publication date: January 1, 2010

More about this publication?
  • Democracy, Ecological Integrity and International Law
    Democracy, Ecological Integrity and International Law is the latest product of research by the Global Ecological Integrity Group (www.globalecointegrity.net), an organisation that has been meeting annually since 1992 to discuss scientific, philosophical, political and legal aspects of ecological integrity. This collection examines various aspects of governance from the standpoint of integrity: from democracy, to forms of Native governance, from globalization and neocolonialism to specific human rights to food, water and climate.
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