The chapter discusses cybersecurity from the perspective of human rights protection. It first identifies adopting border measures as one approach to fulfilling a state’s duty to protect its citizens against human rights violations caused by cybercrimes. It then examines the tension between these FDI restrictive border measures and states’ investment protection and promotion obligations under IIAs. The analysis demonstrates a limitation in the current international law framework in which invoking the concept of national security remains the only means for states to address cyberthreats, which involves the risk of an accelerating shift to protectionism.

The chapter begins by giving an overview of the background against which efforts to agree on international norms regulating cybersecurity take place. It highlights intensifying cyberthreats, increasing geopolitical tensions, and the rise of China, as well as a backlash against economic globalisation, which call for a reassessment of cybersecurity governance. It then summarises the main aims of the book, which examines cybersecurity challenges, governance responses to them, and their limitations, engaging an interdisciplinary approach combining legal and international relations disciplines. It builds on the fundamental premise that cybersecurity challenges require a widely agreed-upon set of international norms. it examines the current political and legal contexts of cybersecurity governance and highlights the divide between two contrasting models of cybergovernance: state-oriented and market-oriented. The chapter then offers a brief overview of all chapters of the book.

The chapter analyses existing regional cybersecurity treaties to highlight the differences in these treaties that reflect the divide between the state-oriented and market-oriented models of internet governance, and to find possible areas of convergence that may pave the way towards global co-operation. It also discusses the role and limitations of the private sector, including IT industries, technical experts, and civil societies, in cybersecurity governance. Realistic scenarios of future global cybersecurity governance would envision expanding and strengthening regional co-operation and co-operation between like-minded states. However, reaching a consensus on particular cybersecurity issues will not automatically result in effective cybersecurity governance. Fundamental differences in the levels of cyber-preparedness and the ability of states to combat cybercrimes will create a living space for cybercriminals and other malign actors to engage in illegal activities. Continuous efforts to support states with less cybercapacity, including through strengthening education, technical skills, and material resources should accompany any attempts to create cybersecurity governance norms.

This chapter examines the current situation concerning the codification, recognition, and implementation of corporate responsibility both in and outside the IIA regime, focusing on environmental and human rights responsibilities. It first discusses certain challenges in regulating and pursuing the responsibility of TNCs’ conduct in domestic legal orders. It proceeds to note a general lack of international mechanisms for holding TNCs responsible for their conduct, through the examination of: (a) the paucity of international law that provides binding obligations of juridical persons as well as a lack of enforcement mechanisms; (b) the attempts towards establishing binding international human rights obligations for corporations; and (c) the development of ‘soft-law’ instruments to advance the concept of corporate responsibility. The chapter then examines the recognition of investor responsibility in the text of IIAs and model IIAs by referencing a dataset of 1,000 randomly selected IIAs and model IIAs to confirm that incorporating the concept of investor responsibility into IIAs remains an exceptional practice.

Examination of the current regime’s potential also reveals its limitations in terms of the need to correct the asymmetry of the IIA regime and reflect the interests of the victims. On this basis, this chapter examines how the analysis presented in this study may inform discussions about the reform of the IIA regime. To incorporate the interests of victims in the dispute settlement mechanism, it specifically proposes a mechanism for encouraging third parties’ participation in investor–state mediation. This study concludes with the argument that the IIA regime should not provide an opportunity to benefit from the existing gap between investment protection and the lack of effective regulation of TNCs’ conduct; rather, it should operate as a mechanism that protects and advances responsible investment. Fully utilising the potential of the current IIA-based dispute settlement mechanisms to materialise investor responsibility has a broader impact than achieving fairness in specific disputes and will serve the objective of advancing sustainable development.

This chapter, together with Chapters 4 and 5, discusses the host state’s counterclaims against the claimant investor. It first discusses the benefits and obstacles of the use of counterclaims by comparing their use with the option of pursuing investors’ legal responsibility through the host state’s own courts. It then discusses the normative grounds for the host state’s environmental counterclaims in the light of the existence of the interests of the victims. Based on assessments of (a) the state’s obligation to protect against private persons’ human rights abuses and (b) the parens patriae doctrine developed in international and certain domestic jurisprudence, it is concluded that the host state has the right to pursue investors’ responsibility both in its own right and on behalf of the victims. It then proceeds to examine whether there are circumstances in which the admissibility of such counterclaims should be denied in light of the victims’ due process rights. This question is answered in the positive, and the factors that make the counterclaim inadmissible on this ground are identified.