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  • 11 - Bilateral Investment Treaties, Investor Obligations and Customary International Environmental Law

  • from Part III - Interpreting Customary International Rules
  • Edited by Panos Merkouris, Rijksuniversiteit Groningen, The Netherlands, Andreas Kulick, Eberhard-Karls-Universität Tübingen, Germany, José Manuel Álvarez-Zarate, Universidad Externado de Colombia , Maciej Żenkiewicz, Nicholas Copernicus University of Toruń, Poland
  • Edited in association with Konrad Turnbull, Rijksuniversiteit Groningen, The Netherlands
  • Book:
    Custom and its Interpretation in International Investment Law
    Published online:
    04 January 2024
    Print publication:
    18 January 2024, pp 261-283
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  • Summary

    The Precautionary Principle has primarily found a place within the international environmental law regime, and to some extent, the international human rights regime. It is also, arguably, considered to be a principle of customary international law. While the international investment law regime has traditionally resisted (and still does) incorporating principles from other regimes, a few innovative International Investment Agreements (IIA) have gone against the grain and expressly incorporated principles of international environmental and human rights law. This chapter draws upon a clause in the Nigeria-Morocco Bilateral Investment Treaty (BIT) of 2016 which mandates that both the investor and the host state shall apply the precautionary principle to their investments. It will enquire whether the precautionary principle has achieved that normative status of customary international law which allows it to be binding on host states by virtue of inclusion in a BIT. Second, it will enquire whether the precautionary principle can be binding on foreign investors as non-state actors.