148 / 610
146
tribunals have been criticized for the manner in which they solve the conflict. It is
said that tribunals protect foreign investors at the expense of competing interests of
the population of the state,
11
and that they tend not to prescribe much weight to
human rights instruments.
12
The United Nations High Commissioner for Human
Rights warned that tribunals interpret investment treaties broadly, which threatens
human rights.
13
This might appear a little surprising, especially in the light of the rule that during
interpretation of international treaties regard should be given to all other relevant
rules of international law applicable in the relation between the parties.
14
Pursuant
to this rule, investment treaties and human rights instruments should be interpreted
in harmony. Nevertheless, there is still tension between the two,
15
and it appears that
human rights are yet to find their proper place in international investment arbitration.
III. Situations where Human Rights and International Investment Law Meet
International investment law practice offers several investment arbitration cases
where investment law met with human rights. The purpose of this section is to inspect
the part which human rights played in these cases, to categorize them, and to assess
whether all the categories present a threat to compliance with human rights.
Examination of international investment arbitration cases where human rights were
raised shows that the two elements directly interact in one of two situations. In the
first situation, an investor claims that a state has breached its human rights; these
instances are described in section III.A. In the second situation, a state defends itself
against investor’s claim by stating that the measures the investor complains about were
necessary in order to protect human rights of the population; the respective manner in
which human rights are used in each case are outlined in section III.B.
A. tate Breached Investor’s Human Rights
The first group of cases where human rights and international investment law meet
consists of a scenario where an investor complains that the host state has breached his
or her human rights. This situation is not very common;
16
human rights arguments
Choudhury, ‘Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest
Contributing to the Democratic Deficit?’ (2008) 41 Vand J Transnat’l L 775, 791; cf Sheldon Leader,
‘Human Rights, Risks, and New Strategies for Global Investment’ (2006) 9 Journal of International
Economic Law 657, 657.
11
Schill (n 4) 88.
12
Hirsch (n 4) 107.
13
UNHCR Report (n 4) 3-4.
14
Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980)
1155 UNTS 331 art 31(3)(c).
15
Simma (n 3) 574.
16
Clara Reiner and Christoph Schreuer, ‘Human Rights and International Investment Arbitration’ in P
M Dupuy, F Francioni and E U Petersmann (eds),
Human Rights in International Investment Law and
Arbitration
(Oxford University Press 2009) (Reiner and Schreuer) 88.