International Humanitarian Law Commons^™

Securing Adequate Legal Defense In Proceedings Under International Investment Agreements: A Scoping Study, Lise Johnson, Brooke Guven

Columbia Center on Sustainable Investment Staff Publications

CCSI prepared a Scoping Study for the Ministry of Foreign Affairs of the Netherlands. Also available are:

• A summary version of the study (33 pages)
• A webinar (March 24, 2020), hosted by CCSI and the Ministry of Foreign Affairs of the Netherlands, discussed the Scoping Study and its findings (see also accompanying slides with speaking notes).
• A webinar organized by UNCITRAL (April 21, 2020). CCSI presented the Scoping Study. A video link of the webinar along with CCSI’s slides are available in English (with speaking notes) and French at that link. CCSI Senior Fellow Karl Sauvant also presented his UNCITRAL …

Environmental Injustice: How Treaties Undermine The Right To A Healthy Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Our planet faces unprecedented threats, including irreversible global warming, loss in biodiversity, and water pollution and water scarcity. The impacts of these environmental crises also threaten human rights and exacerbate inequality. Slowing these worsening environmental trends – and addressing the impacts of environmental change on populations – will require cumulative policy responses at the national and international level.

Fixing The Business Of Food: The Food Industry And The Sdg Challenge, Barilla Center For Food And Nutrition, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab

Columbia Center on Sustainable Investment Staff Publications

In collaboration with the Barilla Center for Food and Nutrition, the UN Sustainable Development Solutions Network, and the Santa Chiara Lab of the University of Siena, CCSI presented its first report on Fixing the Business of Food.

The document, part of a two-year effort, highlights the sustainable development challenge faced by the food industry. By proposing a Four Dimension framework, the report asks four overarching questions for companies in the food sector to address alignment with the SDGs:

1. Does the company contribute to healthy and sustainable dietary patterns through its products and strategy?
2. Are the company’s production processes economically, socially, …

Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

Briefing For Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work And What Are Their Environmental Impacts?, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

If a company wants to use a community’s land for eucalyptus plantations, the community should think carefully about whether this is a good idea. Civil society organizations that support communities can use this briefing to help communities understand the potential environmental impacts the community should be aware of. The briefing explains plantation forestry and the life-cycle of eucalyptus tree plantations. It also notes the different possible negative environmental impacts of eucalyptus plantations before exploring how this information can be factored into community decision-making about a proposed eucalyptus plantation. While the briefing focuses on eucalyptus plantations, a lot of it will …

Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with …

“Big” Food, Tobacco, And Alcohol: Reducing Industry Influence On Noncommunicable Disease Prevention Laws And Policies, Belinda Reeve, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The food, tobacco and alcohol industries have penetrated markets in low- and middle-income countries (LMICs), with a significant impact on these countries’ burden of noncommunicable diseases (NCDs). Tangcharoensathien and colleagues describe the aggressive marketing of unhealthy food, alcohol and tobacco in LMICs, as well as key tactics used by these industries to resist laws and policies designed to reduce behavioural risk factors for NCDs. This commentary expands on the recommendations made by Tangcharoensathien and colleagues for preventing or managing conflicts of interest and reducing undue industry influence on NCD prevention policies and laws, focusing on the needs of LMICs. A …

Alternatives To Investor-State Dispute Settlement, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Proponents often explain support for international investment agreements (IIAs) for their ability to: (1) promote investment flows; (2) depoliticize disputes between investors and states; (3) promote the rule of law; and (4) provide compensation for certain harms to investors – objectives of varying degrees of importance to multinational enterprises, home states, host states, and other stakeholders.

While each of these objectives may seem desirable, it is important to consider what exactly they mean and whether IIAs are optimally tailored to achieve them.

This two-part series aims to consider just that. In the first blog installment, we asked of investor-state dispute …

Investment Treaties, Investor-State Dispute Settlement And Inequality, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

International investment treaties entrench and exacerbate intra-national inequality by:

1. Providing stronger substantive legal rights to a certain class of actors that in turn strengthen the legal force of their economic rights and “expectations”, with potentially negative impacts on the competing rights and interests of other stakeholders; and
2. Providing unequal procedural rights to a certain class of actors, easing their ability, through ISDS, to challenge regulatory measures negatively impacting their economic interests, while other individuals and entities continue to face relatively high legal and practical barriers to using litigation to protect and/or enhance public interest objectives.

This Working Paper, adapted from …

Editor's Introduction

Genocide Studies and Prevention: An International Journal

No abstract provided.

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …

Bridging The Information Gap: How Access To Land Contracts Can Serve Community Rights, Lara Wallis, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment.

Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and the Open Land Contracts repository (OpenLandContracts.org) to help communities to:

• Understand company and government obligations related to a company …

The Renewable Power Of The Mine, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Access to affordable and reliable energy is key for the mining sector and with rising demand for minerals and falling ore grades, energy demand is estimated to increase by 36% by 2035. Today, energy produced and procured by mining companies is mostly fossil fuel based. This will have to change if the sector is to contribute to the decarbonization of the world economy, needed for countries to meet the target adopted at the Paris Agreement of keeping global temperatures from rising more than 1.5-2 degrees Celsius.

At the same time, the costs of solar, wind and battery storage systems have …

Framing The Global Pact For The Environment: Why It’S Needed, What It Does, And How It Does It, Teresa Parejo Navajas, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

We face a critical environmental crisis. Humanity consumes unsustainably; we use resources at a rate fifty percent faster than they are reproduced by the planet. The population is growing exponentially and climate change, the most important challenge of this century, is already wreaking havoc around the world. Despite numerous existing international environmental treaties, the Earth, and, therefore, human safety and prosperity, is in peril. According to a recent study by scientists from Stanford University and the National Autonomous University of Mexico, the ongoing “sixth mass extinction” threatens to cause an “assault on the foundations of human civilization.” In November 2017, …

Tying The Knot: An Interdisciplinary Approach To Understanding The Human Right To Adequate Nutrition, Jessica Fanzo, Kaitlin Y. Cordes, Elizabeth F. Fox, Anna Bulman

Columbia Center on Sustainable Investment Staff Publications

Malnutrition is alarmingly prevalent, affecting one in three people worldwide. In this Article, we argue that a key reason the global community has been unsuccessful in combating malnutrition is a lack of clarity outside the field of nutrition regarding the true meaning of “nutrition.” In particular, this has limited the effectiveness of international human rights law as a mechanism for addressing malnutrition.

In this interdisciplinary Article, which draws from both the legal and nutrition fields, we unpack the meaning of nutrition and demonstrate that a standalone right to adequate nutrition does indeed exist in international human rights law as a …

Updates To The Uncitral Legislative Guide On Privately Financed Infrastructure Projects, Brooke Guven, Motoko Aizawa

Columbia Center on Sustainable Investment Staff Publications

CCSI, jointly with The Observatory for Sustainable Infrastructure, submitted comments to the UNCITRAL Secretariat regarding updates to the UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects. CCSI’s comments focused on the need for an updated guide, which will now refer to Public Private Partnerships, to holistically and systematically incorporate considerations of: (1) sustainable development and the SDGs, (2) rebalancing of the public versus private nature of PPPs, (3) transparency, participation, accountability, and remedy, (4) empirical evidence-based assessments of contexts in which PPPs may be desirable, (5) objectives of investment and PPPs, (6) human rights, (7) labor, (8) climate change, …

Book Review: Prosecuting Corporations For Genocide, Sarah Federman

Genocide Studies and Prevention: An International Journal

No abstract provided.

Outcome Report Of Roundtable On International Investment Regime And Access To Justice, Michelle Chan, Kanika Gupta, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

On October 18, 2017, the UN Working Group on Business and Human Rights and the CCSI co-hosted a one-day roundtable on the impacts of the international investment regime on access to justice for investment-affected individuals and communities.

Held at Columbia University in New York, the roundtable brought together 32 individuals from civil society organizations, communities affected by investments at the heart of investor-state claims, governments, academia, donor organizations, UN mandate holders, and other stakeholder groups. The roundtable provided an opportunity for participants to: (i) explore and assess the specific impacts of international investment agreements and investor-state dispute settlement on access …

Community-Investor Negotiation Guide 2: Negotiating Contracts With Investors, Sam Szoke-Burke, Rachael Knight, Kaitlin Y. Cordes, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Community-Investor Negotiation Guide 1: Preparing In Advance For Potential Investors, Rachael Knight, Kaitlin Y. Cordes, Sam Szoke-Burke, Tehtena Mebratu-Tsegaye, Marena Brinkhurst

Columbia Center on Sustainable Investment Staff Publications

Deciding whether or not to allow an investor to use community lands and natural resources is one of the most important decisions a community can make. If an investment project is carried out in a respectful and inclusive way, it may help community members to achieve their development goals, which may include creating jobs and local economic opportunities. But investments come with risks. Investment projects may make the land that community members need for farming and other livelihood activities unavailable for some time. They may pollute local rivers, lakes, air, and soils, or block access to sacred areas or water …

Implementing The Ahafo Benefit Agreements: Seeking Meaningful Community Participation At Newmont’S Ahafo Gold Mine In Ghana, Benjamin Boakye, Maggie M. Cascadden, Jordan Kuschminder, Sam Szoke-Burke, Eric Werker

Columbia Center on Sustainable Investment Staff Publications

In 2008, ten communities in the Brong Ahafo region of Ghana entered into agreements with Newmont Ghana to govern company-community relations, ensure local job creation, and share the benefits of the company’s mining operations. Ten years later, this report, co-authored by Canadian International Resources and Development Institute (CIRDI), African Center for Energy Policy (ACEP), CCSI, and ISP, looks at the communities’ experience of those agreements and suggests how the agreements might be improved. Though the agreements were celebrated for their attempts to include all stakeholders in decision-making, challenges remain around representation, consultation, and participation. New entities established to facilitate multi-stakeholder …

Clearing The Path: Withdrawal Of Consent And Termination As Next Steps For Reforming International Investment Law, Lise Johnson, Jesse Coleman, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This is a crucial moment in international investment policymaking. Two factors have converged, calling for a new direction. First, it has become increasingly difficult to justify investor-state dispute settlement (ISDS); even governments that had been among its strongest proponents are now changing course and have raised a range of fundamental, systemic and inter-related issues relating to ISDS. Second, policy makers and other stakeholders have a greater awareness of the need to design appropriate policies to maximize the contributions cross-border investment can make to sustainable development. Influenced by these factors, various reform efforts related to investment policy are underway at the …

Costs And Benefits Of Investment Treaties: Practical Considerations For States, Lise Johnson, Jesse Coleman, Brooke Guven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.

Resourcing Green Technologies Through Smart Mineral Enterprise Development: A Case Analysis Of Cobalt, Saleem Ali, Perrine Toledano, Nicolas Maennling, Nathaniel Hoffman, Lola Aganga

Columbia Center on Sustainable Investment Staff Publications

Achieving the goals of the Paris Agreement requires the world to adopt ‘green technologies’ such as renewable energies and electric transportation at an unprecedented scale. While many countries have implemented policies to spur the adoption of such technologies, a lack of focus has been placed on the sourcing of minerals that are required as inputs. As a result, there is likely to be a significant deficit that may constrain the adoption of green technologies.

In this report, we argue that a neglected area in addressing the mineral scarcity challenge is the private sector’s current trajectory for geological mineral exploration and …

Implementing Shared-Use Of Mining Infrastructure To Achieve The Sustainable Development Goals, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Many of the Sustainable Development Goals will only be achieved if the population has access to basic services, such as access to water, power, transport, and telecommunications. However, in many developing countries there is a lack of infrastructure to guarantee these services and there are insufficient public funds to finance growing needs. In resource-rich countries, the mining sector can play a key role in increasing access to infrastructure. Mining-related infrastructure is often developed to serve the exclusive need of the investors, but if it is shared and developed to serve the broader needs and uses of the host economy it …

Amicus Brief On Rights To Information And Public Participation In Colombia, Brooke Guven, Sam Szoke-Burke, Pedro Villegas

Columbia Center on Sustainable Investment Staff Publications

CCSI submitted an amicus brief to the Constitutional Court of Colombia concerning the Tutela hearing of Mansarovar Energy Colombia Ltd. v. Tribunal Administrativo del Meta (The Consulta Popular of Cumaral, Meta). The hearing concerned a challenge by Mansarovar Energy Colombia Limited of a municipal-wide referendum (the Consulta Popular) concerning whether or not the extraction of hydrocarbons should be permitted in the municipality of Cumaral. The municipality voted 97% against allowing the extraction of hydrocarbons.

CCSI’s brief focused on the international human rights law dimensions of the case, given that Colombia’s Constitution renders the government’s international human rights law obligations …

Ccsi Submission To Un Special Rapporteur On Extreme Poverty Re: United States Country Visit, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

The United Nations Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, will conduct a country visit to the United States in December 2017. In response to his call for input, CCSI sent a submission focused the United States’ role in the international investment regime, and the United States’ international investment agreements (IIAs), noting that the IIAs to which the US is a party raise tensions, and can potentially create conflicts, with the US’s human rights obligations, including those that apply extraterritorially, and exacerbate conditions of poverty, extreme poverty and inequality.

At The Intersection Of Land Grievances And Legal Liability: The Need To Reconsider Contract Rights And Expectations At The Supranational Level, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

This Article explores how host governments’ legal obligations can affect or constrain their ability to address “land grievances,” which are defined as concerns raised by local individuals or communities in response to negative impacts of land-based investments. Obligations under international investment law, international human rights law, and investor-state contracts can be in tension or can directly conflict with one another, creating complexity for governments seeking to respond to land grievances. To explore the legal considerations that governments must navigate in this context, this Article considers several options that governments could pursue to respond to land grievances. In all of the …

India’S Revised Model Bit: Two Steps Forward, One Step Back?, Jesse Coleman, Kanika Gupta

Columbia Center on Sustainable Investment Staff Publications

In December 2015, the Indian government approved the final text of its revised model bilateral investment treaty (BIT). Shortly thereafter, in February 2016, India published a joint interpretative statement to clarify its understanding of certain treaty provisions found in existing Indian treaties. These recent developments in Indian investment treaty policy are products of a multi-year review process ,prompted at least in part by the 2011 finding against India in the White Industries claim - the first such known finding against the state – and by several notices of dispute received following the determination in that case.