Calls for investor-State dispute settlement (“ISDS”) reform have catalyzed efforts to evolve the regime. Concurrently, the ISDS system continues to wrestle with tensions between an investment regime primarily oriented towards protecting investor rights, and the human rights normative architecture for protection of individual rights and associated State obligations for protection of such rights. ISDS reform efforts have specifically endeavored to address procedural barriers that in practical terms have prevented assuaging persistent tensions. Such efforts further present an opportune moment to address so-called first, second, and third “generations” of human rights in toto. States can likewise support such efforts with adoption of investment agreements and policies that further both the procedural and substantive dimensions of human rights across all generations.

Three “Generations” of Human Rights
Human rights are often conceptualised as falling into three interdependent  “generations of rights”:

• First-generation rights relate to civil and political liberties (e.g., right to a fair trial or freedom of speech)
• Second-generation rights relate to social, economic, and cultural rights (e.g., right to housing or right to education)
• Third-generation rights, or ‘rights of solidarity’, relate to collective rights (e.g., right to a healthy environment)

The ISDS regime has tended to recognize certain civil and political rights including, inter alia, the rights to property, access justice, and due process. However, these rights are often made available only to a very narrow set of entities (i.e., foreign investors), without also focusing on second- and third-generation human rights (either of those investors, or other stakeholders). For ISDS, the challenge becomes balancing which rights apply to which entity (i.e., investor or State), as well as acknowledging that ISDS qua system impacts all generations of rights.

Ongoing ISDS Reform Efforts
There have been three notable ISDS reform efforts:

• Discussions at the UNCITRAL Working Group III (Investor-State Dispute Settlement Reform) (the “Working Group III”)
• The European proposal of a Multilateral Investment Court (the “MIC”)
• The current Proposal for Amendment to the ICSID Rules (the “Proposed Amendment to ICSID Rules”)

These institutional reforms focus largely on procedural rights including, inter alia, fostering transparency, reducing arbitration costs, and encouraging amici participation. Therefore, they primarily focus on certain critical civil and political rights (e.g., public and community participation, rule of law) over second- and third-generation rights (e.g., right to water, right to a healthy environment). Altogether, they seek to address how the dispute itself should be resolved, rather than directly addressing substantive human rights concerns, perhaps because they can be negotiated separately between States.