Public health clauses in international investment agreements: Sword or shield?

Abstract

The interaction of international investment agreements and public health is marked by ambivalence. Investment treaties can help attract investment into the health sector but also enable international legal claims by foreign investors against public health measures. This paper seeks to better understand their relationship by systematically mapping the purpose of health inclusions in bilateral investment treaties (BITs) between 1959 and 2021. We find that health-related clauses, present in 18% of all BITs, are used both as a shield and a sword. Most health mentions protect host countries from claims against public health measures, yet an increasing number of recent BITs, primarily from developing countries, also pursue an offensive public health agenda by advancing health safety at work and health-related corporate social responsibility of investors.