State-Investor Contracts and Human Rights: Taking a Critical Look at Transparency and Participation
This chapter addresses the topic of state-investor contracts from a human rights perspective, focusing in particular on transparency and participation. Firstly, the role and function of state-investor contracts in the extractive industries is considered, focusing predominantly on mining in Africa. Secondly, five key human rights issues associated with state-investor contracts are examined and discussed, namely: (1) human rights coverage in state-investor contracts; (2) asymmetry in capacity and information of negotiating parties; (3) stabilisation clauses and regulatory chill; (4) transparency, public sector oversight and monitoring; and (5) access to remedy and dispute settlement. It is argued that the use of the generally applicable law to govern extractive industries foreign direct investment projects, rather than state-investor contracts, should be encouraged as this provides opportunities for greater transparency and participation for impacted rights-holders and other stakeholders in the way that agreements governing such projects are negotiated and implemented. Furthermore, opportunities exist to enhance transparency and participation in the use of state-investor contracts, which should be realised irrespective of whether a jurisdiction favours a contractual or licensing regime. The chapter concludes by highlighting key opportunities for improving transparency and participation in state-investor contract negotiation and implementation, whilst noting that any such opportunities should be realised in the context of broader reform considerations regarding extractive industries governance for sustainable development.
I would sincerely like to thank Kaitlin Cordes, Mads Holst Jensen, Lise Johnson and Andrea Shemberg for their helpful comments on an earlier draft, as well as William Oon for his research assistance.
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