16.1 Introduction

The study presented in this chapter is based on the hypothesis that today, more than ever, we need legal regulations adapted to the interaction between technology, human rights, and investments. In this context, international investors, as influential providers of digital services, must respect human rights by adapting their investment activities. At the same time, it has become a priority for states to find a balance between national sovereignty and the protection of investments and fundamental rights, especially in light of the dramatic decline in investment treaties.Footnote ¹

Sociability, as the ability of people to live in society, is a cornerstone of the digital era. Since the law reflects the structure of society, the law of sociability is a natural norm applicable to both individuals and states, highlighting the importance of international cooperation to meet the heightened human needs of civilisation. International investments have a profound impact on human rights, and the standards of legal treatment and the attitudes of host or origin states can influence inclusive and sustainable development. The question is: in light of these priorities, is it better to include new reference clauses in investment contracts or to enhance the dynamics of investment treaties that encompass these standards?

Either way, UN General Assembly Resolution 67/171 emphasises that human rights should be the main framework in negotiations regarding international legal instruments in the field of foreign investments. Current legal regulations need to create a fair and clear framework for all participants, balancing innovation, investment protection, and respect for human rights. In the latter case, we must consider both access to digitalisation as a human right and the individual autonomy to choose not to use the internet or technologies.Footnote ²

The close interaction between international investment and significant advances in digital technologies points to the need for legal regulation adapted to this convergence. International law is facing a dynamic that reflects a complex and close interaction between the global business world and rapid technological developments. In general, the legal regime of foreign investment has its origins in the same law of sociability from which trade developed. Sociability, as an appropriation and capacity of people to live in society, resulting from the human character of being sociable, is a spring of the digital era, an era in which international investors as digital service providers have to comply by adapting to respect human rights in investment activities.

In the past, the law of sociability was considered a natural law not only for individuals but also for states.Footnote ³ It is a perfectly valid rule even now. The more humankind advances towards civilisation, the more our needs increase, and as these cannot always be satisfied by the products and industry of our own country, we are obliged to have recourse to neighbouring countries, so that it may be said that from the particular needs of individuals have been born relations between states.Footnote ⁴

As a result, the diversity of human rights is directly proportional to the level of sociability. As things were in the past, so they are today. Why? Because we have a ‘today’ characterised by the digital boom as a new kind of sociability with new laws of sociability between individuals and states, and human rights can only be seen in their fundamental and vertical dimensions.

Therefore, international investment clearly has a profound impact on human rights, contextually given that the standards of their legal treatment, as well as the attitude of host states or even home states, may not always result in inclusive, sustainable and equitable development.Footnote ⁵

General Assembly Resolution 67/171 states that human rights are a primary guiding framework in negotiations for international law instruments in the field of foreign investment. The resolution includes among its provisions the following:

Increasing concerns for good regulation through the harmonisation of the international investment regime with regard to human rights have been driven by their overlap and interference with intellectual property, technology transfer, climate change, and energy regimes. Legal research analyses and assessments need to address the impact of the convergences, divergences, and intersections of these very different regimes on the realisation of human rights.

Digital technologies have become a key tool in this strategy of globalising business. Many international investments focus on areas of research and development, including digital technologies. Cross-border collaboration in these areas stimulates innovation and brings together expertise from different regions of the world. Legal regulations are currently focused on cross-border data transfer, global intellectual property rights protection, and cyber risk management. Legal initiatives must create a fair and clear framework for all participants. The balance depends on facilitating innovation, protecting investment and ensuring respect for human rights in the context of digital technologies. The focus remains on the protection of individual rights in the digital age, in particular privacy and data security, but also modern compliance with international standards on the human rights for inclusion and diversity.

16.2 Is a Legal Approach of Different Theories and Regimes Useful for Reaching a Single Unified Theory?

Recent doctrine and case law have approached international investment through a human rights lens, taking into account a wide range of issues such as: (a) the impact that states’ obligations (implicitly their liability) under Bilateral Investment Treaties (BITs) or Treaties with Investment Provisions (TIPs) would have on their capacity to respect human rights or to adopt new provisions in this respect – in this context, the phenomenon of digitisation is central; (b) the package of measures that states and other actors would need to adopt or pursue in order to ensure a positive impact and avoid negative impacts; and (c) how to address these new challenges through international cooperation. All this continues in an upward and multifunctional trend aiming at holistic, people-centred development.

In this context, the transdisciplinary approach to human rights would be advisable in the sense of an integrative research strategy.Footnote ⁷ Through transdisciplinarity as a shared space, we can seek to accumulate new knowledge from the dialogue between two or more disciplines. This is an approach that understands reality as a whole and analyses it from that complete perspective without addressing each of the different parts that make it up separately. Finally, transdisciplinarity is also present in technologies, where integrated knowledge allows the development of technological tools with immediate application in solving specific problems.Footnote ⁸

When successfully used in the social sciences, we note that transdisciplinarity, if approached correctly, has the potential to overcome the singular vision of the specialist fields that form it, seeking to achieve a unity of knowledge. Human beings are a dynamic and ever-changing object of study, especially from the perspective of human rights and especially in the digital age. In this way, the transdisciplinary approach is necessary to obtain a complete assessment of human behaviours and the communities in which they develop, since they cannot be examined in isolation when we refer to the internet, new technologies, and so on.

The socialisation discussed in Chapter 15, together with integration and social control (notions that should be used with caution in the field of law), are the main concepts used in social psychology, sociology, and cultural anthropology, which define the processes, mechanisms, and institutions that ensure in any society the conformity of members of society to its ethical, normative, and cultural model, but also prevent deviation.Footnote ⁹ It is, therefore, impossible to analyse the subject of this chapter in isolation. However, the importance of a legal analysis that could bring together several reference extracts from different disciplines in order to arrive at a single legal theory focused on a particular theme of study, as we often find in human rights, is obvious. In other words, even if we pursue very concrete themes (such as digital impact), the legal concept must be the subject of a rigorous discipline with its own language and its own requirements.Footnote ¹⁰

This mode of analysis chosen for the exposition of my theory was inspired, at the level of the structure of the analysis, by the ideas of E. O. Wilson, who affirmed the unified theory of knowledge in disciplines as an Esperanto between physics, biology, social sciences, and humanities. The level of legal research can concentrate, as we have shown, on different and comparative legal regimes, especially when it comes to defending and regulating human rights as comprehensively as possible. We have found that applying this theory can open new doors to new, broader, more effective solutions. In fact, since in the process of scientific knowledge it is always worth noting the success of several scientists’ attempts to bring together certain different concepts for comparative analysis, Wilson’s book, Consilience, is also a revelation in the same sense.Footnote ¹¹ This jump together of specialists from different fields that also involves substantially different concepts can indeed provide unified theories.

The aim is to obtain a unified human rights theory of international digital investment, which can be derived from the analysis of substantially different notions, such as the promotion of social progress and better living standards; greater freedom; use of specific international mechanisms to promote the economic and social progress of all peoples; and identification of interferences between intellectual property regimes, technology transfer, consumer protection, digital green infrastructure, and investment policies.

We find an example related to the theme of this chapter in addressing human rights, trade, economic value creation and capture, law enforcement, and national security for tailored digital regulation. However, the speed at which states respond differs, resulting in gaps caused by the speed of technological progress. As a consequence, these gaps are reflected in the rights of individuals, businesses, international trade, and policymaking. It is becoming increasingly important to address the issue of establishing legal frameworks that are as compatible as possible at national, regional, and multilateral levels. In the digital economy, the focus must be constantly on foreign digital and technology start-ups, as experts believe that they can become the major players of tomorrow.

Alongside all these aspects, we have discovered an equation in previous work that is applicable in such analyses. It is one of the newest legal customs: the triangle of equal sides formed by human rights–digitalisation–security; in other words, following the same correspondence: legality, necessity, and proportionality. We have often said that in law we are more likely to discover and not innovate. The following theory is one of our discoveries that we have written about and promoted in the last year at international conferences. The definitions and explanations of each component of the New International Triangle (human rights, digitisation, and security) and how they interact with each other are based on the observation that the triangle is, in fact, a modern paradigm of international relations that focuses on the interconnectedness of its three equal sides. In other words, following the same correspondence, we can observe legality, necessity, and proportionality. Since Cristina Popa Tache personally discovered this geometry, we named it ‘DoDS triangle’ or, in English, ‘HrDS triangle’.

Using this equation has the potential to clarify regulatory lines in the area of international investment. We can see how, as digitisation intensifies, many states are having to develop new legislation to protect sensitive data belonging to individuals or institutions. Protection takes place to prevent their use for malicious or even illegal or commercial purposes, or against their use in the unauthorised surveillance of individuals (or the masses) by the state or other natural or legal persons who might have this interest. In this way, privacy and data protection will become a standard in cross-border trade and investment, as many commercial transactions require cross-border data flows that meet minimum legal requirements (UNCTAD, 2019).Footnote ¹² From this point of view, this standard is not only preferred by the population but is also pursued by international investors who expect to find the best possible standards for their investments in host countries. Experts believe that investors and consumers are likely to start prioritising privacy and data protection as a fundamental human right and to censure companies operating in countries that do not provide adequate privacy and data protection.Footnote ¹³

The relationship to human rights highlights the connection between international investment and digitisation, going beyond data protection, and references the groundbreaking Digital Economy Partnership Agreement (DEPA), the first of its kind, signed in 2020. In its content, the following are brought into the spotlight: ‘the importance of corporate advocacy, social responsibility, cultural identity and diversity, environmental protection and preservation, gender equality, indigenous rights, labour rights, inclusive trade, sustainable development and traditional knowledge’.Footnote ¹⁴ In the same vein, problems arise when human rights and freedoms conflict with the acceptance and use of digitisation. One example may be the religion or faith of certain groups of individuals that prohibits them from using modern digital means (in the same way that they refuse to take medication, for example). It has also been highlighted that there have been and continue to be cultural or traditional differences that should be given more consideration by digital service providers. The history of the investment system has seen opposition to certain types of investment, which leads us to think now about strategies for reconciling the discrepancies that can arise from relating the freedom of human belief to certain ideologies and a certain qualification of foreign investment. At one time, Canada and France, for example, invoked cultural criteria to prevent the American entertainment industry from entering these countries and dominating their national entertainment industries. The danger of a certain kind of dominance appears on the horizon for national digital industries, to be treated with particular attention because there may exist or may arise national security problems that may overlap, knowing that the limits of national security and safety are regulated at the level of domestic law and, as a consequence, are usually related to certain human rights.Footnote ¹⁵ Alternatively, precisely these premises can lead to various contemporary problems (some marked by the unpredictability) of digital manifestation because is it not the case that ‘everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom to manifest his religion or belief […]’.Footnote ¹⁶

The Universal Declaration of Human Rights itself reinforces respect for these values, which are considered to be among the highest aspirations of humanity.Footnote ¹⁷ It is equally true that all these rights and freedoms will have to be adapted at the government level so that, through the development of digitisation, social progress and improved living conditions can be fostered within the framework of greater freedom, as provided for in the Declaration.

In order to avoid discrepancies and conflicts between different jurisdictions, international regulations and especially common standards are essential. Collaboration between countries can help create a predictable and coherent environment. The convergence of international investment and the digital boom brings to the fore new paradigms, such as state–private sector relations in digital innovations. This process is not without some limits that can generate significant effects if not dealt with seriously, promptly and competently. For example, the rapid pace of innovation can lead to rapid advances in digital technologies that can outpace the ability of legislation to keep up with new developments. Regulations may become outdated before they are updated, leaving gaps in relevant legal matters. These are compounded by significant differences between jurisdictions in terms of legal regulations and practices. Obstacles to adopting global standards or maintaining a coherent framework in the context of international digital investment may be created. It is not easy to come up with regulations that take into account all the variables and ensure a fair balance between divergent interests. If we discuss individual rights and cybersecurity, the balance between data access and data privacy can become a point of contention in the regulation of international technology investments.

Other limits may be given by implementation costs or resistance to change by some sectors or entities that enjoy existing regulations. Let us not forget that in this way, the process of adaptation and adoption of innovative legal practices needed in the digital environment can be slowed down. This phenomenon is amplified by the fact that regulations can be difficult to monitor and implement in practice, especially given the cross-border nature of many international investments and digital operations. The effects can be disastrous when combined with the limitation of appropriate civil society and industry consultations, as it can lead to the absence of important insights and increase the risk of the inappropriateness of norms.

Any initiative must consider the delicate balance between promoting investment and protecting human rights. The analysis of the rights and obligations of international investment actors in the information and communications technology (ICT) sector underlines the complexity of the legal issues involved in this rapidly developing area.

16.3 Types of International Investment – Digitisation – Human Rights

International investment branches out into all areas: in the vertical sense, we have investments in maritime, land, air and space, while horizontally, there is an unlimited horizon of areas and fields we can find foreign investment. The recognised fact that investment activities can no longer function outside digitisation is one of the main reasons they are seen as shaping the global economy. The use of artificial intelligence is just one step further towards more advanced automation and robotics. The analytical perspectives include the legal, social, economic, and political spheres.

In contemporary society, there is an endless variety of types of international investment, including projects such as building and launching satellites, building renewable power plants, building and operating blood plasma fractionation facilities, and many and various media services. In this landscape, ICT is co-ordinated by the big investors providing social media platforms without much transparency in respect to human rights. Special treaties to regulate this area in a clear way do not exist at the multilateral level, and no clauses have been identified in investment treaties to cover this issue. Therefore, the existence of these situations of non-regulation affects the protection of human rights, which is so sensitive to legal interpretation. In the process of globalisation, the national system of regulation, adjudication, management, or dissemination of information has a significant impact.Footnote ¹⁸ In the face of these developments, states generally play an active role, preferring the status of policymaker rather than policy-taker in the international community.Footnote ¹⁹

All of this requires the close cooperation of experts in these fields, and continuous research, debate, and critical analysis in order to respond to various issues that arise in relation to the effective legal regulation of the foreign investment–digitisation–human rights relationship. Like all other issues in law, the issue of human rights in this context can only achieve its social and economic objectives to the extent that all aspects are made known and are subject to critical analysis.Footnote ²⁰ In this process, information becomes the focus of attention and acquires the characteristics of an effective tool for promoting and ensuring human rights. The rapid development of digitalisation has a serious impact on society and on culture, and experts must identify each element of this impact in relation to human rights. According to Resolution A/HRC/RES/20/8: ‘Information is a source that activates the economy, making it possible for people to participate in government activities through public forums and contribute to the decision-making process.’Footnote ²¹ In this context, international investors interested in the correct application of legal regulations are increasingly engaging in major investments in start-ups operating in this field. These investments are often made in collaboration with human rights groups or in partnership with various social organisations, focusing on adopting appropriate digital technologies and testing their compliance with human rights standards. Information technologies will continue to deliver progress, but the way in which their use will be achieved requires both a detailed knowledge of every element of the technology, as well as human rights protection to cover each element. They inherently come with new and hard-to-anticipate risks related to non-discrimination, privacy, children’s rights, freedom of expression, access to public services, and the right to work. We are therefore at the intersection of human rights and technological development.Footnote ²²

In this context, access to digitisation itself becomes a human right that needs to be expressed in specific regulations, a fact confirmed by recent developments according to which customary international law is ready to accept rules that identify internet access as a human right.Footnote ²³ If we analyse the theoretical framework corresponding to this hypothesis, we will notice that there are very few recent works, even fewer in the field of digitisation, that address human rights in general or in investment law in particular. Discussions should also focus on the extent of the regulatory right available to states.Footnote ²⁴ Attention must be fairly directed to the contradictory issues that can be generated between the right to regulate and the protection offered to foreign investors under international investment law.

At a theoretical level, it is also important to explore whether the host states of certain investments in technology have the right to regulate, and also how they exercise that right. For example, there are a small number of articles in which theorists have raised the issue of the possibility of adopting new and adapted regulations to improve social standards and living conditions for populations. If these regulations do not exist, then states could face a wide range of investment disputes.Footnote ²⁵

A case in point is financial technology, where the latest international law instruments with more tailored clauses are emerging. The model put forward by these instruments could be followed in all other investment sectors where there is the imprint of digitisation, as the global use of financial technologies is just one example with a great impact on current human rights regulations. Perhaps the ultimate goal ideally pursued by the fundamental and vertical analysis of human rights in the digital age is even the development of international law instruments, such as digital bridges, whereby states protect their populations in this respect. Of course, these new instruments come with accountability built in for those who violate human rights in the digital sphere, but accountability is the subject of a wider debate, which follows hierarchically from the normative establishment of these new rights.

Inspired by the international FinTech Bridge agreements (bilateral agreements between two national governments and their respective relevant regulatory bodies), we believe it is possible for all types of international investments to be subject to new or amended regulations. To that end, the following pillars of rights and obligations should be considered as relevant in the investment–digitalisation–human rights relationship:

1. (a) Government-to-government pillar. A framework in which implementing authorities – according to the administrative system in each country – agree to hold regular working discussions, which could, for example, be organised quarterly to help realise existing options. There are several contributors to this type of regulation that help elaborating specific norms – among them, political officials, legal experts, and regulatory authorities. From here, parties can launch discussions of the development of policies to suit the type of investment-digitalisation-human rights in each jurisdiction.Footnote ²⁶ The aim is to explore innovative ways to mitigate the impact of digitisation on human rights, to explore the challenges faced by international investors, and to gather relevant evidence, in particular on the protection and promotion of this sector. These aspects are particularly important and have been qualified in theory as part of the Great Digital Game.Footnote ²⁷ There has even been talk of these concerns forming a Digital Silk Road (inspired by China’s modus operandi for various activities – commercial and diplomatic – of interest to governments in the cyber domain).Footnote ²⁸ In this sense, we consider the circumstances of the acceleration of the formation of a new development model that presents domestic circulation as the main body consolidated by the dual circulation of the domestic and international economy. This relationship is reciprocal, and China is one example of a large economy that has addressed it.Footnote ²⁹ Here, a note can be added that relates to modern international law: possible bridging agreements could be established through specific clauses that dialogue between governments, regulators, and what we call industry, to identify emerging digital trends and specific issues. In FinTech, for example, blockchain, security and data exchange, RegTech,Footnote ³⁰ SupTech,Footnote ³¹ and WealthTech,Footnote ³² have already been the subject of international cooperation. With these, the desirability of establishing legitimate and effective international institutions is logically raised. Institutions mean public law regulations and international institutions as international public authorities will be covered by a part of public international law that should be more appropriately understood as part of (international) public law, given their hybrid typology.Footnote ³³ This is also the aim of this chapter: namely, to highlight by reference to a concrete example (i.e., international investment), the emergence of a new era of legal regulation that can be used as a model for all other subsequent emergences. As developed in another publication, this coexistence of radically different visions of international institutions has proven useful in specialist theory.Footnote ³⁴ From this perspective, public international law has the potential to transform and adapt its own ecosystem. Regulatory demands in the legal relationship between foreign investment, digitalisation, and human rights call for identifying, reforming, and advancing the aspects of public international law that govern the exercise of international public authority.Footnote ³⁵

2. (b) Regulator-to-regulator pillar. This is the second type of regulation, built on a cooperation agreement between implementing authorities and between regulators. Again, public international law reacts to challenges and manifests its regulatory role through these types of public authorities. The rights of the consumer of digital services are an area that must be constantly updated with the latest protections.Footnote ³⁶ The industrial transformation of the digital ecosystem, especially but not least digital communication, has reflected the adaptations and reinterpretations of the user within the interface where there is a permanent dialogue with the strategies proposed by industry. The web has become the symbolic space where human-to-human interactions take place and not with the machine as it was believed.Footnote ³⁷

   Here, we can mention the characteristic attributions of regulatory authorities: improvement of licensing procedures for innovative companies already licensed or authorised in another jurisdiction, and developing research and testing solutions (and publishing the results for the benefit of industry, regulators, and consumers). What is relevant here are the factors that prioritise or influence the elaboration of rules in international law. This argument is based precisely on the emphasis on common international interests, not on the interest of a single state.Footnote ³⁸ The digital domain is increasingly under the purview of various international authorities. That is why the emphasis must be placed on the legal relationship of public international law (private law already presents its limits). Private international law has been criticised for its lack of meaningful contribution to global governance issues, such as the equal distribution of wealth, the fight against transnational human rights violations, and the protection of collective planetary goods such as the environment. All this, as well as many other issues, such as those pertaining to digitalisation, somehow remained within the scope of public international law.Footnote ³⁹

   For example, through an instrument of international law, preferably through a treaty as a hard law instrument, states can agree to work to enhance the various digital bridges between them and the benefits of this cooperation for digital investment activities. How? By establishing cooperation at expert level, tailor-made strategic advice, assisting and supporting the process of identifying opportunities, establishing contacts between the relevant staff at trade and investment implementing authorities, developing innovation programmes, and, of course, setting up joint working groups.

3. (c) Business-to-Business pillar. A subsequent pillar built on the ability of governments to support active engagement between digital industry bodies and human rights bodies. How? Through regular high-level business-to-business discussions involving joint human rights and industry representative groups co-chaired by signatory states.

   Also under this pillar, governments would approve the initiatives of digital industry bodies. One of the topics of these discussions may be the exploration of collaboration around certain areas, such as (the list is only illustrative) supply chain finance, digital assets, and the use of blockchain in government applications, such as social care, estates or pensions, or data sharing.

   In the face of these activities, there has been widespread criticism and mobilisation against trade agreements and investment treaties, which is perpetuated because solutions are not always adopted. One of the issues that has been the subject of this criticism has focused on the tendency of governments to focus more on trade interests without taking into account their obligations to address human rights, the environment, and development. In other words, the way states are preoccupied with ensuring a business-friendly environment has led to the undermining of the protection and realisation of human rights. Along with the tech giants, as the big digital investors are known in theory, states really have to bend to regulatory updates.Footnote ⁴⁰ The era of datafication has come with issues such as surveillance capitalism, digital welfare, and the government use of data about its citizens that reconfigures rights and power and minimises the role of individuals and citizens in decisions about their own future.Footnote ⁴¹ In a United Nations (UN) report, the UN Special Rapporteur on extreme poverty, Philip Alston, states that ‘social protection and assistance systems are increasingly driven by data and digital technologies that are used to automate, predict, identify, monitor, detect, target and punish’.Footnote ⁴²

   A number of papers have gone through specific analyses of international investors’ decisions and actions that extend to respect for human rights in their operations, products, and services.

   In this context, it is worth recalling the UN Guiding Principles on Business and Human Rights (UNGP),Footnote ⁴³ which establishes that investors should take into account in their investment activities the responsibility to ensure that their investments in the technology sector avoid negative impacts. These guiding principles are built on three pillars: the duty of the state to protect human rights, the responsibility of business to respect human rights in its own operations and along the value chain, and the right of access to redress for victims of human rights abuses. Of particular importance is the delineation of investors’ responsibilities and the identification of current trends in practice, together with useful recommendations for investors.Footnote ⁴⁴

   An official enumeration of the main internationally recognised human rights is found in the International Bill of Human Rights (the Universal Declaration of Human Rights and the main instruments by which it was codified: the International Covenant on Civil and Political Rights and the International Covenant on Human Rights, the Covenant on Economic, Social and Cultural Rights, together with the fundamental rights principles of the eight fundamental International Labour Organization Conventions as set out in the Declaration on Fundamental Principles and Rights at Work). They play a guiding role for other social actors who evaluate the impact of investments and business in general on human rights.

   The responsibility of the international investor in general, and of commercial enterprises in particular, is to respect human rights. But along these lines, responsibilities may differ from matters of legal liability and enforcement, which remain largely defined by the provisions of national law in the relevant jurisdictions. Uniformity is a difficult goal to achieve.

   Depending on the circumstances, international investors may need to follow additional standards. For example, businesses should respect the human rights of people belonging to specific groups or populations that require special attention when the businesses may have a negative impact on human rights. For this, the UN instruments further developed the rights of indigenous peoples, women, national, ethnic, religious and linguistic minorities, children, persons with disabilities, and migrant workers and their families. Special attention is also given to the elderly. The international community has felt its own low level of digital literacy against the backdrop of digitisation. At the level of older generations, its impact has been huge (social exclusion and restricted access to certain natural human rights). Theorists have analysed the power that universal human rights instruments can have to impose on states a certain concern for what is called ‘the inclusion of older generations in the information society’. The same concerns are transferred horizontally to investors in digital services. A world convention is being worked on at the UN that protects the rights of elderly people and through which rights such as education, information, transparency, and other aspects related to the degree of the standard of living have been brought into the spotlight.Footnote ⁴⁵ Additionally, in the event of an armed conflict, investors should comply with the standards of international humanitarian law.

   Establishing a system of accountability is essential because the important risks to people and the material risks to technology investments are converging rapidly, as current studies show. These continue to be highlighted in venture capital investments, as well as by the recognition of digital rights as material rights by investors and by those empowered to regulate new standards, which would lead to uniformity of data points and different methodologies today.

   The UN Human Rights B-Tech Project notes that while sustainable investment practices have been around for decades, investments in Environmental, Social, and Governance funds reached approximately $40.5 trillion in global assets under management in 2020.Footnote ⁴⁶ It also points out that human rights are often narrowly understood as individual aspects of human rights, such as forced labour or discrimination (correlated with certain narrow parts of business, particularly in dealing with customers and end-users), rather than encompassing the full range of human rights.Footnote ⁴⁷

   The role of technologically responsible investment is becoming the benchmark for civil society seeking protection through the accountability of investors for their practices but also appropriate mechanisms to enforce these rights. Responsible investors promote public policies that encourage responsible investment in technology in a particular area of interest.Footnote ⁴⁸

16.4 What Is New in the World of Digitisation? New Standards for the Legal Treatment of Foreign Investment in Digital Matters

In this context, the DEPA is a first step, whereby Singapore, New Zealand, and Chile signed this as the world’s first digital trade treaty in June 2020. DEPA is pioneering because it creates international rules and practices for cross-border business in the digital economy, anchored by strongly stated sustainable development goals. The Agreement highlights ‘the importance of the digital economy in promoting inclusive economic growth … in particular Goal 8 and Goal 9’.

Meanwhile, we have seen China, South Korea, and Canada’s intentions to join DEPA along with joining the Comprehensive Regional Economic Partnership, driven by the growing importance of digital trade and its evolution, leading to cooperative efforts in scientific research and international education. This development aligns with the widely accepted principle that digital trade represents the future of global trade and investment, playing a dynamic and transformative role in shaping the global economy. It is focused on blockchain, artificial intelligence, and internet technologies to guide the expansion of e-commerce and cross-border payments, issues that highlight the priority of mapping new trade technologies, including cloud services, Distributed Ledger Technology, and 3D printing.

As we have outlined the solutions in the pillars in Section 16.3, through DEPA, the parties will convene a ‘Digital SME (small and medium-sized enterprises) Dialogue’ to promote the benefits of the Agreement for the parties’ SMEs through consultations with experts from the private sector, non-governmental organisations, academia, and other stakeholder groups.

Importantly, this international law instrument is intended to inspire international law actors in negotiations, and ‘will generate new ideas and approaches in the international digital economy or digital trade’.

On the other hand, international organisations concerned with these issues have produced specific reports following global crises affecting high and volatile food prices, climate change, and financial turmoil. Public international law has felt obliged to react to the international economic order. We have seen how civil society has pushed states to turn (in parallel with the attention paid to business) to the social implications for human rights vis-à-vis the new set of international investment law policies and instruments.

In these efforts, human rights impact assessments consider the right to development and its implementation, the importance of policy coherence, taking into account human rights obligations, standards and principles, the need for human rights audits and impact assessments, flexibilities and exemptions, such as in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, and remedies.Footnote ⁴⁹

In view of these moves, it is not out of the question that investment treaties will be amended by introducing new standards of treatment specific to digital activities.

When discussing all of this, we note the major role of treaties in the governance of digital investments, with an emphasis on strategic and significant international implications. Adapting legal regimes to the digital age is an essential process. The results of the analysis converge towards the need for domestic laws and existing treaties to be revised in order to bring them up to date and adapt them to the new digital realities. The approaches are based on identifying gaps or ambiguities in existing regulations and adjusting them, and formulating them in a flexible and adaptive way.

International collaboration to establish common standards is based on harmonisation, which has the purpose of facilitating cross-border interactions and helping to avoid discrepancies between jurisprudence. Adapting legal frameworks to the digital age also requires significant efforts in promoting digital literacy. Citizens need to be informed about their rights and responsibilities in the digital environment, and continuing education can contribute to a deeper understanding of digital challenges and opportunities.

The specific analysis of the ramifications at the national level requires a (re-)examination of the specific regulations at the domestic level, with an emphasis on issues such as intellectual property, national security and economic progress. National regulations can include policies and facilities to stimulate investment in digital technologies. The privacy and safety of consumers are at the centre of the debates, especially against the background of the absence of internationally uniform definitions for what it means to be a consumer, user, or recipient of technological products or services. By specifically analysing these issues at the national level, regulations can be adjusted to create a legal environment conducive to the sustainable development of digital technologies, while protecting national interests and the fundamental rights of citizens. At the international level, some concrete examples of the implications for public policy and human rights, as well as how international actors can gain control over technologies, are well known. China is a notorious example of the government using digital technologies to exert tight control over information available on the internet. Through digital censorship and monitoring systems, Chinese authorities have imposed significant restrictions on freedom of expression online, directly affecting human rights to freedom of information.

Situations where international actors, such as the big players in the technology industry, enter into technology transfer agreements can have major implications. For example, when a company from a developed country invests in a developing country, it can gain control over the local digital infrastructure, raising questions about data protection and access to cutting-edge technologies.

In the US, the use of facial recognition technologies in government and the private sector has raised concerns about privacy and individual freedom. In this context, questions have been raised about the protection of human rights, especially regarding mass surveillance and the potential abuse of the technology.

In addition to these examples, we can remember that international investments in the digital infrastructure of African countries can turn into a certain form of control over digital resources. An example can be given by the case of Chinese investments in communication networks and technologies in Africa, where there are concerns about the impact on the digital autonomy of these countries and the potential risks to human rights in the context of these partnerships.

16.5 Conclusions

This chapter has addressed a particularly dynamic and important theme in the international law landscape, namely the legal relationships in the triad of foreign investment, digitisation, and human rights. This is demonstrated by the frequent emergence of new international instruments, a dynamic unprecedented for any other field.

The digital intersection between trade and human rights, including the right to development, has revealed new elements that can inspire negotiating parties. The implications for inclusion and human rights extend, without limitation, to data protection, social responsibility, cultural identity and diversity, environmental protection and conservation, gender equality, indigenous rights, labour rights, inclusive trade, sustainable development, and traditional knowledge. All of these regulations aim to protect and promote fundamental human rights and freedoms, improve cultural links between people, including indigenous peoples, and improve digital access for women, rural populations, and low socio-economic groups.

All recommendations on measures to meet governments’ human rights commitments are taken into account, developing national, regional, and continental approaches and frameworks to support digital trade worldwide.

It is advisable to continue analyses that build on the positive aspects of including the human rights and environmental rights dimensions of sustainability explicitly in mega-infrastructure plans and projects, globalisation and its impact on the full enjoyment of all human rights and policymaking, the concerns of all members of society in the negotiation, drafting, and implementation of specific international law instruments, including the search for complementary and adjustment measures, the infusion of ethical and normative objectives and processes into contracts between states and investors, and the ways in which human rights, in particular, can be incorporated.

The digital domain and its interaction with human rights, especially in the context of digital investments, is a domain totally subject to the argumentative practice of law as an interaction of formal and instrumental reasoning techniques.Footnote ⁵⁰ The differences lie in those specific to the novelty of the field since we cannot discuss the formation of a precedent as paradigmatic modes of formalist reasoning. Attention is directed to instrumentalism: purposive reasoning, balancing, policy analysis, and casuistry.Footnote ⁵¹ Interactions will always exist between compliance with existing norms and the moral power to ‘change the law into a more optimal rule’.Footnote ⁵²

Bringing together groups of specialists for these analyses has the potential optimistically to lead to positive results and the identification of the best solutions.