Abstrak

Kembali

International human rights law conceives of political participation as a right, particularly where it takes the form of elections giving voice and effect to popular will. In contrast, as this article shows by reference to specific arbitral awards, international investment law conceives of political participation as a risk—a political risk—not least where it takes the form of elections. Despite this fundamental tension, the antagonism between States’ investment protection and human rights obligations has been addressed only with regard to economic and social rights (such as the right to water), whose capacity to bind States is questioned. Political participation, for its part, is a civil and political right of long standing. A key normative component of democracy, it unquestionably binds States as a matter of international law. Although unacknowledged by respondent States, arbitrators or commentators, the tension between political participation and investment protection pervades the arbitral awards considered here. Mindful of the coherence of international law and the anti-democratic critique of investment law and arbitration, this article invokes the principle of systemic integration and urges greater sensitivity to political participation in applying core investment law concepts of legitimate expectations, public or legitimate purpose and essential interest.