147 / 610
145
to confirm this statement. In section II it describes the relationship between human
rights and rights given by investment treaties, and asks why there may be tensions
between them. Section III analyses situations where the issue of human rights was
raised in investment arbitration in the past. It classifies them into two categories and
examines whether such situations can be seen as danger to the global level of protection
of human rights. Section IV examines the investment cases as to their outcome and
aspires to find the reasons behind them. Section V then focuses on
amicus curiae
and
its role in the proceeding, it examines the role
amicus curiae
played in the past cases
and assesses whether this non-party actor can serve to promote harmony between
human rights and investment rights.
II. Relationship between Human Rights and Investment Rights
Protection of human rights and protection of investment rights are two different
systems, albeit both are integral parts of international law.
6
When one appreciates the
differences between them, it becomes apparent why the two systems may be viewed
as conflicting.
Both systems serve a different purpose. International investment law was created
to offer a specific protection to a very specific figure: an investor. An investor is an
entity from one state that has made an investment in a different state with the aim of
generateing profit.
7
International investment law then protects this investment from
different kinds of interventions from the state. System of protection of human rights
was created since the recognition of dignity and equal and inalienable rights of all
humans is the ‘foundation of freedom, justice and peace in the world.’
8
An obligation
to observe human rights is seen as an
erga omnes
obligation,
vis-à-vis
the international
community as a whole.
9
The two systems create a net of obligations that are imposed on a state. It is not
surprising therefore that certain event may trigger more than one responsibility, each
from a different system. International investment tribunals may be confronted with
arguments supported by provisions of human rights treaties. Then it will be their task
to strike balance between these two branches of international law.
Analysis in section III shows that such situations have indeed occurred in the past.
They were also envisaged by academics, who warned that objects of an investor may
not always coincide with interests of the population and that investment projects may
have adverse consequences on the state of human rights.
10
Investment arbitration
6
Simma (n 3) 576; cf Surya P Subedi,
International Investment Law Reconciling Policy and Principle
(Hart
Publishing 2008) 153.
7
Profit is often considered to be one of the features of an investment; cf Dolzer and Schreuer (n 1) 60,
66-67.
8
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) preamble.
9
Hirsch (n 4) 109.
10
M Sornajah,
The International Law on Foreign Investment
(3rd edn, CUP 2010) 228; cf Barnali