Policies on foreign investment in National Action Plans on BHR: Transformative change or reproduction?

Abstract

While international investment law (IIL) and business and human rights (BHR) could have been one legal domain, they are today seen as distinct legal worlds. States’ National Action Plans (NAPs) on BHR, aimed at prescribing policies to realize the UN Guiding Principles, are one of the many places where this phenomenon can be observed. Embracing a Law and Political Economy (LPE) perspective, this article contributes to the existing literature by enhancing the understanding of how NAPs on BHR currently engage with the intersection between BHR and the international investment regime. This article is the first to offer an analysis of the integration of BHR with the IIL in all publicly available NAPs, through the lenses of Fineman’s ‘vulnerability theory’, which we relate to LPE. Our analysis shows that NAPs, while not binding, can in principle be mobilized for change. Yet, despite their relevance and potential, we have also shown that, in their current forms, these instruments tend to replicate the BHR/IIL separation. As such, they perpetuate existing power dynamics that favour foreign investors over other actors negatively impacted by foreign investments. The analysis also demonstrates that the limited recognition of the interplay between foreign investment and human rights in separate NAPs, coupled with restricted inclusiveness of affected stakeholders and states’ readiness to adapt their legal and policy frameworks, significantly hampers the ability of NAPs to foster the resilience of individuals adversely affected by foreign investment.