Türkiye is among the highly active states in the field of international investment law. In fact, in terms of the number of International Investment Agreements (IIAs) concluded so far, it has the third highest number of concluded IIAs after China and Germany. Similarly, considerably more than it faced with investor claims, Turkish investors have relied on Türkiye’s IIAs to file investment complaints abroad against their host states. However, when it comes to bringing investment law and human rights law together, Türkiye does not enjoy such a prominent place, and there is very little interaction between human rights and foreign investment regulation in Türkiye’s agreements and domestic laws and policies. Against this brief background, this analysis demonstrates that human rights considerations have so far played a very marginal role in Türkiye in the drafting of investment treaties, legislations on foreign investment and investment policies.
International investment law is a hybrid field in that while the way investment disputes are settled emanates mostly from international commercial arbitration, it is established mostly by treaties, a quintessential source of public international law concluded by states. It is not only impacted seriously by public decisions but also investment disputes may create severe public repercussions. In recent years, it has increasingly been witnessed that more interactions are taking place between the fields of human rights and international investment law. There is a growing understanding among the contemporary international investment regime’s critics that foreign investments may significantly influence the enjoyment of human rights in their host countries, and therefore, human rights concerns should get more attention in the development of international investment regime and domestic laws and policies.
While Türkiye has actively participated in international investment law and concluded numerous investment agreements, human rights considerations have played a minor role in the crafting of these agreements as well as domestic laws and policies pertaining to foreign investment.
However, this increasing understanding finds very little resonance in Türkiye’s approach to foreign investments, and this is easily visible in Turkish IIAs, laws related to foreign investments, and policies related to business and human rights in general. Human rights are usually considered as a tool either to complement existing foreign investment protections or something to be promoted in order to attract more foreign investment, not something that can be harmed or promoted by foreign investors/investments.
As for the IIAs, while there is an increasing number of references to issues such as protection of the environment, human rights or labour rights in Turkish IIAs, these are mostly not in the context of investor obligations and human rights-related obligations imposed upon investors are either absent in most Turkish IIAs or formulated not clearly. A quick computational textual analysis of Turkish IIAs reveals that while there may be up to 72 provisions on human rights-related investor obligations in the IIAs concluded by Türkiye, almost all of them deal with domestic law compliance in the pre-establishment phase or tax and fiscal obligations to transfer funds abroad. Very few of these obligations are about novel and more progressive subjects such as Corporate Social Responsibility (CSR), sustainable development or labour rights. Moreover, these few provisions are mostly aspirational or hortatory and addressed to states, not foreign investors. Hence, they can hardly introduce any enforceable human rights-related obligation upon foreign investors.
Rules and regulations concerning foreign investment can also be found in a country’s domestic laws. One of the most notable requirements for certain projects and investments in Türkiye’s domestic law concerns environmental protection. Accordingly, before starting a wide variety of planned projects –such as the construction of hydropower plants, refineries, fossil fuel plants, highways, airports and certain mines – an environmental impact assessment must be made in order to determine potential positive and negative impacts of the project on the environment, prevent or mitigate its adverse impacts and monitor its operation. This environmental impact assessment is necessary regardless of the nationality of investors. Additionally, local communities must be informed and involved in the development of such projects.
However, the general domestic legal framework on foreign investments in Türkiye has no mention of the possible impacts of foreign investments on the enjoyment of human rights. The Law on Foreign Direct Investments explicitly states that it is aimed to “encourage foreign direct investments, to protect the rights of foreign investors, to comply with international standards in the definition of investment and investor, to transform the permit and approval system into an information system in the realisation of foreign direct investments, and to increase foreign direct investments through the determined policies.” Dating back to 2003 and being revised minimally since then, the Law does not prescribe any human rights-related obligation on investors, and it seems to be enacted with the sole purpose of attracting more foreign direct investments.
Business and human rights is another field of international where human rights and international investment can meet. In this domain, ever since the start of the mandate of the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, foreign investments have been considered tools that can contribute to or limit the enjoyment of human rights. For instance, National Action Plans (NAP) on Business and Human Rights are documents where states lay out their business and human rights policies and can formulate policies concerning foreign investments. However, let alone prescribing such policies, Türkiye does not even have a NAP or any other official governmental document containing policies directly on business and human rights. Seemingly, there is no unified official strategy in Türkiye on business and human rights and how to protect the enjoyment of human rights from the adverse impacts of business operations, including that of foreign investments.
In conclusion, Türkiye’s approach to the intersection of international investment and human rights leaves much space for improvement and increased interaction. While Türkiye has actively participated in international investment law and concluded numerous investment agreements, human rights considerations have played a minor role in the crafting of these agreements as well as domestic laws and policies pertaining to foreign investment. This is in contrast to the growing recognition globally that foreign investments can significantly impact the enjoyment of human rights in host countries.
