International Investment Law and Climate Justice: The Search for a Just Green Investment Order

Efforts are underway to craft responses to the climate crisis within the international investment order. This Article highlights international investment law (“IIL”) and international climate law (“ICL”) as two basic governance contexts within which investment- related responses to climate change are being designed. There is, however, a multilevel—normative and institutional—dissonance between both regimes that makes for an asymmetric integration of the regimes at best, or worse still, the escalation of the injustices which have characterized both. While similar in their recognition of international investment as an important tool for responding to climate change, assumptions and approaches under both regimes are different. Both regimes, however, are responsible for the entrenchment of climate injustice. This Article re-envisions climate justice through a Third World Approaches to International Law (“TWAIL”) lens and provides recommendations on the actualization of a just green investment order. Drawing on TWAIL, we argue that treaty proposals that simply emphasize making IIL compatible with international climate frameworks for green investments, despite their relevance for the transition to a green economy, overlook structural normative dynamics which have perpetuated historical injustice, skewed power relations, and contributed to diverse tragedies of the commons. To avoid cascading into a new regime of inequities, we argue that IIL reform and investment-related measures under the ICL regime must centre on climate justice and a nuanced interpretation of historical responsibility.