The Human Right to Property in International Investment Law

Abstract

This article seeks to address part of the “legitimacy crisis” currently underway in the international investment regime. It identifies shortcomings in the jurisprudential coherence of investor-state arbitral awards in expropriation cases where the state defends its actions by invoking human rights considerations. This article suggests the interpretation of the scope and characteristics of investors’ property rights under investment law—as well as the property rights of non-parties to investor-state disputes, such as the ancestral land rights of Indigenous peoples—should be in line with the meaning of property rights under human rights law. This approach has the methodological benefit of incorporating to investment law human rights law theory’s, methods of interpretation and jurisprudence— which favours a balancing act and proportionality analysis, and provides a margin of appreciation to state authorities when addressing multiple human rights considerations. It provides consistent analytical tools to overcome the difficulties of broadly stating that human rights should apply to investment law, which can be insufficient as a guide to interpretation in the context of specific disputes.