The interaction of international investment agreements and public health is marked by ambivalence. Investment treaties can help attract investment into the health sector but also enable international legal claims by foreign investors against public health measures. This paper seeks to better understand their relationship by systematically mapping the purpose of health inclusions in bilateral investment treaties (BITs) between 1959 and 2021. We find that health-related clauses, present in 18% of all BITs, are used both as a shield and a sword. Most health mentions protect host countries from claims against public health measures, yet an increasing number of recent BITs, primarily from developing countries, also pursue an offensive public health agenda by advancing health safety at work and health-related corporate social responsibility of investors.
Policy Implications
- This study points to an opportunity for governments and multilateral organisations to encourage a diversity of health inclusions in BITs to encompass multiple purposes, including defensive and offensive clauses.
- This novel and comprehensive data set can give policymakers insights regarding the widespread and increasing use of defensive clauses to carve out policy space for health measures in BITs.
- There is an opportunity for an improved understanding of health inclusions to inform renegotiation of BITs that still lack such flexibility.
- The analysis highlights an opportunity for health policymakers to engage strategically with investment policymakers to encourage the inclusion of more proactive and progressive health clauses into international investment agreements.
Photo by Andrea Piacquadio