The 2017 BIT Model of Colombia: A Human Rights Assessment from Investment Disputes Against the State

The International Investment Law (IIL) system, understood as the principles, norms and institutions that are in place for the protection of foreign investors in host countries has been the subject of criticisms from different stakeholders. One of the main criticisms has been linked with the relationship between states obligations to respect, protect and promote human rights, on the one hand, and to respect international obligations towards foreign investors, on the other hand. Sources of conflict between and IIL and human rights mainly emerge from, first, the possibility that foreign investors protected by international investment agreements (IIAs) challenge the host state’s laws, regulations and policies aimed at protecting human rights in its territory, and second, the adoption of foreign investment attraction policies characterized by a relaxation by states of the respect of human rights. This was recognized back in 2009 by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises who observed on investment and trade agreements that “recent experience suggests that some treaty guarantees and contract provisions may unduly constrain the host Government’s ability to achieve its legitimate policy objectives, including its international human rights obligations”. In this regard, in 2011, the United Nations Guiding Principles on Business and Human Rights, unanimously endorsed by the Human Rights Council includes principle 9 which requires States to “maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts”. This principle arises from the potential conflict between State’s obligations under trade and foreign investment agreements and their duty to respect, protect and fulfil human rights through domestic measures.