Sustainable development in international investment law: reflection on the environmental responsibility of private companies investing abroad
| Autor | Nitish Monebhurrun |
| Páginas | 51-66 |
Introduction
It would be accurate, without any touch of cynicism but with a glimpse of irony,
to allow sustainable development speak with the words of G. Bernard Shaw:
«My reputation grows with every failure.».
If sustainable development, as an objective, had to be assessed today, it
would certainly not be characterised as having attained a gleaming success. One
of the main reasons for this is the ‘20’ associated with the ‘Rio+20’ program.
Twenty years after the United Nations Conference on Environment and De-
velopment in 1992 in Rio de Janeiro, sustainable development is still an issue
and many of its conundrums remain unsolved. Discussions still have to be
carried on, skeptical minds still have to be convinced and most importantly, a
consensus still has to be found on the optimal implementation of sustainable
development policies and norms. Being intergenerational in its de nition and
in its essence, sustainable development is becoming an intergenerational pro-
blem; it seems to be passed on more as a pathology than as a concrete solution
to existing economical and environmental di culties. A generation is about
to elapse since the term, ‘sustainable development’ was coined. e Report of
the United Nations Brundtland Commission entitled, Our Common Future, of
1987 had de ned it as “development that meets the needs of the present without
compromising the ability of future generations to meet their own needs2”. In 2011,
debates are still going on about the parameters and the possibilities of its reali-
sation. is is not in line with the original expectations of the negotiating States
and of the civil society. Even if many conferences having a direct or an indirect
1 Nitish Monebhurrun is a Phd fellow in international law at the School of Law of Sorbonne where he also
acts as an assistant lecturer in law.
2 See: http://www.un -documents.net/ocf -02.htm#I.
SUSTAINABLE DEVELOPMENT IN INTERNATIONAL INVESTMENT LAW:
REFLECTION ON THE ENVIRONMENTAL RESPONSIBILITY OF PRIVATE
COMPANIES INVESTING ABROAD.
NITISH MONEBHURRUN1
52 A ECONOMIA VERDE NO CONTEXTO DO DESENVOLVIMENTO SUSTENTÁVEL
relationship with the subject have been organised since 19923, it seems that
the whole of the work still has to be done. Sustainable development appears as
a stillborn concept. e ‘sustainable’ which precedes and accompanies ‘develo-
pment’ sometimes seems more decorative than substantial4.
Doubts can therefore be well -founded and legitimate about the year 2012
brandishing a newly forged sword to cut the ropes of a never ending debate by
nally forcing a consensus on the de nite direction to be followed by sustainable
development. True, the catastrophe in Fukushima might act as an adjuvant5.
Fear might force negotiations6. Unfortunately, even in such circumstances,
many States often tend to uphold their personal economic interests rather than
fully and sincerely support the common goal for which they gather. Realpolitik
gains the upper hand over the issues in negotiation. In the ght and choice of
values, the economic value has been prioritised. It is not that the environmental
value is not important for negotiating States. However in a ring of confronta-
tion, economic interests have most of the time been given the upper hand. is
is one of the main causes of the limited practical success of sustainable develop-
ment. is cannot be ignored and it is upon this realistic background that this
paper will be presented. It will consider sustainable development in internatio-
nal investment law by focussing on the environmental responsibility of private
companies investing in foreign countries.
International investment law is a eld of international law which has been
developing at a fast pace for the last ten years and is experiencing important
developments7. One of its main originalities is that a private entity — the
investor— is a major actor in its eld. In international investment law, the in-
vestor, in the form of a private company, is protected by a bilateral investment
3 Summit on population (Cairo, 1994), Social Summit (Copenhagen, 1995), Summit of women (Beijing,
1995), City Summit, Habitat II (Istanbul, 1996), Kyoto summit on Global Warming (Kyoto, 1997),
Conference of the United Nations General assembly on the implementation of Agenda 21 (New York,
1997), Conference on the nancing of development (Monterrey, 2002), Earth Summit of the United
Nations (Johannesburg, 2002).
For more details on some of the most important summits, see: CORDONIER SEGGER (M.C.),
KHALFAN (A.), Sustainable Development Law. Principles, Practices and Prospects, Oxford, Oxford Uni-
versity Press, 2004, pp.15 -55.
4 For a debate on this, see: BOFF (L.) “Sustentabilidade: adjetivo ou substantivo?, Carta Maior, 13/06/2011,
(available on: http://www.cartamaior.com.br/templates/colunaMostrar.cfm?coluna_id=5087).
5 Germany has already informed that it will shut down all its nuclear plants by 2022 (See for example:
http://www.guardian.co.uk/world/2011/may/30/germany -pledges -nuclear -shutdown -2022).
6 On fear as an instrument of sustainable development see, MANCEBO (F.), Développement durable,
Paris, Armand Collin, 2008, pp.99 -113.
7 DUPUY (P.M), “Uni cation rather than Fragmentation of International Law? e Case of International
Investment Law and Human Rights”, in, DUPUY (P.M.), FRANCIONI (F.), [eds.], Human Rights in
International Investment Law and Arbitration, Oxford, Oxford University Press, 2009, p.45
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