One crucial difference between migration and other areas is that the web of individual rights woven by human rights law has remained thin for a long time. Migration has long looked like the last bastion of sovereignty while other fields of law became subject to a rights revolution imposing meaningful constraints on public authorities. This essay confronts the legacy of immigration exceptionalism with developments in the European legal space since the 1990s. Catalyzed by the case law of the European Court of Human Rights (ECtHR), human rights eventually have taken center stage in legal and political struggles challenging the power to exclude. The expansion of human rights discourse in contemporary Europe is seen as part of a larger trend. Mutually reinforcing processes of “humanrightization” in law, politics, and everyday practice have given rise to successful claims raised by migrants and other social actors seeking to limit the governmental power of migration control. Humanrightization of migration discourse makes it possible to formulate far-reaching demands for the inclusion of migrants within the framework of the recognized rules of legal argumentation—a “positivist human rights maximalism.”

Embedded in mutually reinforcing processes of “humanrightization” in law, politics, and everyday practice,1 the European Court of Human Rights in Strasbourg (ECtHR, or Strasbourg Court) has become a central actor and forum for conflicts around the inclusion and exclusion of migrants in Europe. The Strasbourg Court has derived specific protections for migrants from the originally “migration-blind” norms of the European Convention on Human Rights (ECHR), such as the prohibition of torture, and respect for family and private life, for example.2 This extension of the ECHR to migrants means that migration control is no longer purely within the discretion of states.

Scholars of international law have been increasingly troubled by states’ vast powers and practices of migrant exclusion. There is no doubt that much of this uneasiness is catalyzed by a keen sense of the demands of a basic liberalism at the international legal order's core. Indeed, the increased construction of border walls,1 the continuously widespread use of deportation as a migration control tool,2 and new digital bordering technologies3 have all come under scrutiny precisely because of the challenges they pose to the notion of supposedly universal entitlements, both substantive and procedural, that often appear disabled or overridden when it comes to the treatment of different sorts of migrants. My goal in this contribution is not to add to such legal critiques, but rather to provide the contours of a broader normative argument to rebuke—or at least complicate—what is often called the state's “right to exclude” all or most would-be immigrants. This right is not just standardly assumed in legal and political practice—indeed, standardly viewed as the linchpin of sovereignty—but has also enjoyed sophisticated defense by liberal political theorists.4 The main goal of my argument is to suggest that anyone with basic liberal inclinations—including political theorists, lawyers, and practitioners of politics—should be able to agree that, under current circumstances, granting states a potent “right to exclude” entails deep tensions with basic moral standards of legitimate authority. This is because the deeply entrenched characteristics and historical background conditions of immigration control today tend structurally to push states to violate the appropriate moral conditions of their legitimate authority to enforce immigration restrictions.5 While moving above and beyond legal argumentation, my hope is that the argument may underscore and give further analytical expression to some of the animating concerns of contemporary legal contestations of states’ exclusive powers and practices.

Embedded in any policy proposal is a set of assumptions about the problem that the policy is intended to solve.1 As policy processes play out, some of these assumptions are contested by the actors involved, while others remain latent. Policy discussion about institutionalizing investment dispute prevention reflects a set of assumptions concerning the problem of investment disputes. In this contribution, I examine assumptions embedded in the development of, and the response to, the United Nations Commission on International Trade Law (UNCITRAL) Secretariat's 2023 Draft Legislative Guide on Investment Dispute Prevention and Mitigation. The Draft Legislative Guide represents the high-water mark of efforts to develop a model of investment dispute prevention that could be rolled out at the domestic level. I make three main arguments. First, both the Draft Legislative Guide itself and wider policy discussion assume that investment disputes develop independently of the cognitive and institutional environment in which they occur. As a result, policy discussion overlooks the extent to which dispute prevention initiatives can, counter-intuitively, produce investment disputes. Second, policy discussion of investment dispute prevention assumes that investment disputes have their roots in coordination failures across government, rather than democratic processes, distributive conflicts, or tensions between the interests of investors and wider public interests. This premise, and its implications, deserve much closer critical scrutiny. Third, institutionalized models of investment dispute prevention of the sort envisaged by Draft Legislative Guide are almost exclusively found in developing states. The dispute prevention agenda needs to grapple openly with the fact that advice is being given to developing states to establish dispute prevention institutions that have no equivalents in the domestic systems of developed states.

This contribution examines the role of dispute prevention mechanisms (DPMs) in domesticating and broadening foreign investor privileges. Although conceived as a means of responding to the backlash against investor-state dispute settlement (ISDS), dispute prevention mechanisms are likely to produce legal enclaves whereby a privileged group of actors are afforded special treatment, and their interests are elevated into policy priorities. As currently conceived, DPMs are expected to operate as a regime embedded in domestic law, but replicating and amplifying investment law's emphasis on the exclusivity of foreign investor rights. Thus, the effect of DPMs is to anchor and extend foreign investor rights to a pre-dispute stage. By analyzing the premises and core features of the emerging DPMs, this contribution argues that, rather than addressing the systemic issues underpinning international investment law, the dispute prevention agenda will further expand and entrench foreign investor privileges.

This contribution highlights the importance of institutional dispute prevention not just to prevent the proliferation of formal legal disputes between states and foreign investors, but also to preserve the relationship between investors and states and enable investment retention and expansion. Drawing from empirical studies and survey findings, as well as the World Bank's country experience of working on investment policy and promotion frameworks, this contribution provides an overview of the World Bank's experience in implementing such mechanisms globally.1

For Peru, the introduction of dispute prevention mechanisms was a consequence of the country's increased openness to foreign investment. Following a severe economic crisis, the government launched several pro-investment reforms in the 1990s. These included signing bilateral investment treaties and free trade agreements with investment protection provisions, as well as investment contracts with foreign investors. The resulting flow of foreign direct investment (FDI) into the country, in turn, increased the likelihood of the state facing investor-state dispute settlement (ISDS) cases. As Peru began to face investment claims in the early 2000s, the Coordination and Response System for International Investment Disputes, also known as “SICRECI” for its acronym in Spanish, was established to manage the practical challenges of coordinating the state's defense. In practice, however, SICRECI's mandate has expanded progressively beyond coordinating ISDS defense, as the institution has undertaken several actions to prevent disputes and otherwise adapted to the specifics of Peru's pro-investment policy. SICRECI became one of the first models of dispute prevention mechanisms, with international organizations showcasing it as an example of how states, in particular developing countries, could address and mitigate a growing number of concerns over the impact of investment arbitration.1

China's 2019 Foreign Investment Law establishes a formal mechanism to handle complaints by foreign-invested enterprises (FIEs)—i.e., Chinese enterprises that are wholly or partly foreign-owned. Its “complaint agencies” are empowered to prevent disputes by facilitating settlements; they do not have adjudicatory authority. Beyond the immediate objective of dispute prevention, this essay argues that the FIE complaint mechanism was intended to strengthen central oversight and control over subnational governments. However, the mechanism may be hindering its intended objectives in practice. In particular, the flexibility and informality of its processes encourage ad hoc settlements between FIEs and errant subnational governments in ways that may undermine the exercise of central administrative powers.

The steady rise of international investment arbitration in recent years suggests that many states still struggle to prevent investor grievances from becoming international investment disputes and ultimately arbitration claims. The United States is not exempt from such difficulties, but it has some institutional advantages contributing to its successful approach to mitigating and managing international investment disputes. Key advantages include its practice of: (1) “internationalizing” domestic law in U.S. international investment agreements (IIAs); (2) encouraging foreign investors to pursue domestic remedies in U.S. courts; and (3) domesticating the international investment regime within the U.S. government. The U.S. experience offers some valuable lessons for the ongoing reform of the international investment regime.

The business and human rights movement has made significant gains recently. After years of struggle, courts are increasingly embracing the idea of holding multinational corporations accountable for human rights abuses and environmental damage in countries of the Global South. Legislators are supplementing this with supply chain laws that impose due diligence obligations on multinationals, often backed by administrative sanctions. Civil liability for damages is less often provided, but hailed as a particular achievement in terms of the protection of victims. However, a closer look at civil liability in recent supply chain legislation adopted in Europe raises the question of whether the hallmark of such liability may actually be its greatest weakness. Supply chain liability is regularly linked to the breach of a due diligence obligation in relation to human rights abuses or environmental damage. This is typically based on international conventions that were not written for corporations and are difficult to apply in individual cases. In contrast, this essay argues that it is better to link supply chain liability to a violation of private rights, such as personal injury or property damage. This fits better with existing tort systems and ultimately benefits victims. The hallmark of supply chain liability should not be the link to human rights, but the establishment of duties of care across legal entities.

The publication of annual sustainability reports—in which companies describe their sustainability performance and strategies—is now a routine part of doing business, especially for multinational companies. This essay examines the legal implications of inflated, misleading—or even plain false—statements made by UK companies in their sustainability reports regarding their operations and those of their subsidiaries, as well as those of entities in their supply chains. It argues that even when they are not legally mandated, these statements can carry legal significance under English tort law. It explains how in Vedanta the UK Supreme Court, applying the doctrine of “assumption of responsibility,” held that a company that states in a sustainability report that it is undertaking a specific task to prevent harm caused by a separate entity may thereby incur a duty to perform that task. Should the company fail to perform that task, and harm occur as a result, the company may incur tortious liability for its omission. This ruling has important implications for UK companies that, for both reputational and legal reasons, make statements concerning their responsibility for the conduct of entities in their supply chains. In practice, as a result of this lesser-known aspect of Vedanta, the legal position of UK companies with respect to entities in their supply chains may not be very different from that of their EU counterparts subject to the EU Corporate Sustainability Due Diligence Directive (CSDDD).

The negotiations on a treaty to regulate global supply chains and their impact on human rights will hold its tenth session in December 2024. The question the negotiations address is not completely new: previous efforts, starting in the 1970s at the United Nations,1 tried to establish international obligations for “transnational corporations” (TNC), but found the issue of defining the subject to be regulated challenging. Academia and civil society also took turns defining the concept, although much of the focus equally revolved around the issues surrounding or caused by transnational corporations (i.e., the resource curse, regulatory chill, etc.). However, the current debate in the intergovernmental working group established by the Human Rights Council has focused, among other important elements, on defining the object of regulation—transnational corporations or transnational business activities—as well as the specific forms of liability under domestic law that could be used in cases of human rights harms or environmental degradation caused by business enterprises. This contribution addresses these two issues, considering some of the debates during the ninth session, and exploring aspects that need to be considered as the process moves forward.

The recent enactment of supply chain due diligence regulation in various jurisdictions prompts reflection on how the law might best incentivize corporations to mitigate the impact they have on the environment.1 Beyond these specific pieces of legislation, judicial actors are similarly playing a role in expanding the responsibility of corporations for the harm their operations, products, and services cause to people and the environment, including throughout their supply chains. In this context, the present contribution takes aim at corporate accountability for climate change and appraises a number of recent developments in domestic jurisdictions that evidence a trend toward supply chain emission responsibility. While the focus of this piece is the contribution of domestic courts, an emphasis is placed on the role that informal international law and global norms have played in the reasoning of those decisions or the claims of litigants. In particular, it highlights the persuasive authority that such international law instruments and initiatives have had in this context.

On March 15, 2024, the Corporate Sustainability Due Diligence Directive (CSDDD or Directive) was adopted by the EU Council.1 This Directive represents the EU's first piece of mandatory due diligence legislation governing the responsibilities of companies for human rights due diligence and transition plans for climate mitigation. It also codifies the principle that “all businesses have a responsibility to respect human rights, which are universal, indivisible, interdependent and interrelated.”2 The Directive broadly follows the framework of the non-binding UN Guiding Principles on Business and Human Rights (UNGPs) which first introduced the concept of human rights due diligence.3 The CSDDD requires that businesses incorporate human rights due diligence into policies,4 identifying, assessing, preventing, mitigating, and ending actual and potential adverse human rights impacts,5 remedying any impacts and monitoring the effectiveness of these processes.6 The Directive also introduces significant sanctions for non-compliance.7

The EU Corporate Sustainability Due Diligence Directive (CSDDD) marks a significant step in the evolution of transnational corporate governance, moving away from the predominantly voluntary nature of corporate social responsibility toward a more binding regulatory framework. A key feature of this shift is the introduction of mandatory requirements for companies to adopt codes of conduct—private policies that set out standards, such as labor rights, which must be enforced across global supply chains. As expectations grew for businesses to integrate human rights and environmental risk assessments into their due diligence processes,1 codes of conduct became an increasingly common way for companies to demonstrate their commitment to social and environmental concerns. Today, nearly 80 percent of European multinationals have adopted such codes.2