A presentation by Ntina Tzouvala (ANU College of Law). This event is part of the Fundamental Rights Research Colloquium hosted by the Centre for Fundamental Rights.
International investment law is in profound crisis and many human rights scholars and activists count themselves amongst its critics. The overarching argument is that if both treaty drafters and arbitrators took human rights law seriously, we would end up with distinctly different outcomes. These outcomes - the argument goes - would be more friendly to the interests of local communities, the environment, or public health. Implicit or explicit in this argument is the assumption that human rights law carries different, inherently more progressive values than investment law. Empirical research has questioned this assumption. Steininger has shown that invocations of human rights in investment arbitration tends to favour the claims of investors (Steininger 2018).
This paper offers a close reading of the von Pezold arbitral award. Delivered in 2015, the award concerned the occupation and subsequent expropriation of the lands of white investors in early 2000s Zimbabwe. The tribunal relied on the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) to argue that white investors had been discriminated against, in violation of an erga omnes obligation. The paper outlines the legal consequences of this finding, which were important both in regard to remedies and to circumstances precluding wrongfulness. More importantly, it outlines the assumptions about human rights, race and racial discrimination that underpinned this finding. It argues that three main assumptions are in play: a certain naturalisation and de-historicisation of race that collapses it to phenotypical characteristics, instead of a structure of domination and exploitation; a radical de-coupling between racial discrimination and political economy that treats racism as an irrational belief; and finally, a temporal and spatial confinement of racial discrimination. Taken together, these three assumptions create a ‘human right to whiteness’ not as a set of phenotypical characteristics, but as ‘ownership of the earth’ (Du Bois, 1920).
In conclusion, the purpose of this paper is not to argue for or against the infusion of international investment law with human rights. Rather, it aims at arguing that human rights do not constitute a silver bullet at all, but rather the field is the object of interpretative battles in its own right - battles that are not necessarily won for progressive causes.
This presentation is part of the Fundamental Rights Research Colloquium's cluster on „Critical Engagements with Fundamental Rights”.
Ntina Tzouvala is a Senior Lecturer at the ANU College of Law. Prior to this, she was an ARC Laureate Postdoctoral Fellow at Melbourne Law School. She obtained her PhD from Durham Law School in 2016 and she also worked as a lecturer at the same institution. Her work focuses on the political economy, history and theory of international law. She is especially interested in historical materialism, deconstruction, feminist and queer legal thoery. Her first monograph, Capitalism as Civilisation: A History of International Law, was published by Cambridge University Press in late 2020. Her work has also appeared in leading journals, including the European Journal of International Law, the Leiden Journal of International Law and the UCLA Law Review. Between 2019 and 2021 Ntina was a founding member of the editorial collective of the Third World Approaches to International Law Review. In early 2020, she was appointed Senior Advisor to the UN Special Rapporteur on the Right to Food.
Prior registration is required. Registered attendees will receive the dial-in details as well as a draft paper, on which the presentation is based, via e-mail prior to the event.
