A few posts ago, I asked:
Of all the individuals, groups and other entities that are out there in the world, why do only "foreign investors" have access to this special international remedy?
In the comments to my post, Mark Kantor said:
Your question "why do only "foreign investors" have access to this special international remedy?" is well taken. It would, IMHO, be good policy if neutral, impartial and independent forums were available for a far greater range of disputes than just claims brought by foreign investors.
In response to that, I then wondered:
I wonder if investor-state is the pathway taking us to the world where international treaties provide such an avenue, or a stumbling block whose controversial nature prevents this from developing. I also wonder if some investor-state opponents would accept it if it were broader, and if some of its proponents would reject it if that were the case.
Mark then pointed to the Report of the Subcommittee on Investment of the Advisory Committee on International Economic Policy Regarding the Model Bilateral Investment Treaty, which said:
Recognizing that the protection of commercial investment made by radio and television enterprises, Internet service providers, news organizations and other media can have the effect of protecting free expression, we believe that the goals of free expression can be more fully realized when investors in these sectors are aware of the availability of BIT protections for such investments.
The current investment treaty system has the potential to be used to protect fundamental human rights such as freedom of speech, freedom of the press and freedom of association. The tools often used to control such expression are the same types of actions that contravene some of the core obligations under the BIT. In this intersection between free expression rights and BIT obligations lies significant potential for a fuller realization of these freedoms through the already existing international investment framework. We encourage the Administration to take efforts to ensure that relevant sectors -- such as radio and television enterprises, Internet service providers, news organizations and other media -- are aware of the availability of BIT protections for such investments.
So the report says that "[t]he current investment treaty system has the potential to be used to protect fundamental human rights such as freedom of speech, freedom of the press and freedom of association."
Here are some questions that occur to me:
-- Is the protection of rights such as freedom of speech, freedom of the press and freedom of association that relate to commercial investment enough to satisfy the opponents of investment treaties? If not (and it probably is not), could these rights be protected under investment treaties beyond commercial investment? If so, would that be enough to satisfy opponents? In other words, could there be a tradeoff where rights of investors get protected, but rights of others also get protected, with the result that there is a coalition in favor of such treaties? What coalitions would develop in response?
-- More generally, should there be an enforceable global treaty/constitution that protects rights such as these? (We currently have global treaties that are not very enforceable, and regional treaties that are enforceable, but there is no enforceable global treaty.) If so, are investment treaties the right place for this?
-- And if there was a decision that such rights should be protected on a global scale, what balance would be struck between all the competing and conflicting rights?
