A Space for Human Rights Goals in WTO and Investment Law

This chapter examines the complex interplay between human rights-oriented policies to combat the impacts of mineral exploitation, and the legal frameworks of the WTO and International Investment Law. In particular, on the basis of the concept of ‘governance space’, this chapter explores how, at its current conception, WTO and International Investment Law limit the capacity of States to respond adequately to human rights concerns in connection to mineral exploitation, forcing a potential conflict of norms and interests. Importantly, these conflicts arise from the interpretation of certain crucial terms that trade and investment decision-makers have chosen to adopt. The analysis delves into restrictive interpretations like ‘likeness’ in WTO Law and principles such as FET and indirect expropriation in Investment Law. Additionally, this chapter examines the potential normative points of entry for human rights considerations into WTO and Investment Law, so States can accommodate their trade and investment obligations and their human rights obligations. The chapter suggests pathways for these legal regimes to open up space for integrating human rights considerations, as a path towards a legal framework that better harmonizes economic development strategies with the protection of human rights in the mineral sector.