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 options considered, the governmental action would also implicate investors’ contract rights or expectations, making the rights and obligations under investment treaties particularly important to consider. Given the challenges arising from these options, and in light of the critical need for governments to protect human rights and address their citizens’ concerns, the Article concludes with a call to reassess the elevation of contract rights and expectations to a supranational level via international investment law. In the absence of a more comprehensive overhaul of the investment law system, a more critical approach by arbitral tribunals regarding the nature and scope of contract rights (and expectations) deemed enforceable could help limit the potential for arbitral decisions to undermine governments’ abilities to address the concerns, and protect the rights, of their citizens.
Kaitlin Y. Cordes, Lise Johnson & Sam Szoke-Burke,
At the Intersection of Land Grievances and Legal Liability: The Need to Reconsider Contract Rights and Expectations at the Supranational Level,
Loy. U. Chi. L. J.
Available at: https://scholarship.law.columbia.edu/sustainable_investment_staffpubs/113