On the Meanings of International Investment Law and International Human Rights Law: The Alternative Narrative of Due Diligence

At a time when the legitimacy and suitability of international standards for both human rights and investment protection are called into question, I argue that the two legal projects can be reclaimed as spaces for transformative change. Specifically, I suggest that common elements can be identified in both protection discourses. These can then be revisited in light of alternative roles that international investment law and international human rights law may take on. I nominate the due diligence principle as one such element since it enables a repositioning of the fair and equitable treatment standard of investment protection as a standard of mutual conduct adopted by states towards investment. The due diligence principle also opens up an alternative reading of the state duty to protect within the United Nations Framework for Business and Human Rights, thus enabling a focus on home-state extraterritorial obligations.