150 / 610
148
The investors convinced the tribunal of a breach in
Al-Warraq v Indonesia
,
Veteran
Petroleum Limited v Russia
,
Yukos Universal Limited v Russia
, and
Hulley Enterprises
Limited v Russia
. In
Biloune v Ghana
and
Patrick Mitchell v DR Congo
, the investors were
not successful. Section IV examines the reasons behind these outcomes. The question
now remains whether international community should be alarmed if the factual situation
revealed that human rights instruments were in all likelihood breached, yet the tribunals
did not rule so.
According to Reiner and Schreuer, the topic whether arbitral system is suited for
dealing with human rights breaches generates a lot of controversy.
33
However, if one
rephrases the question, it may seem less so. Would the protection of human rights
on global level be threatened if breaches of human rights instruments could not be
addressed in international investment arbitration? The answer should be no. The
system of protection of foreign direct investments was created to protect investments.
Protection of individuals against human rights breaches should be primarily secured
by human rights instruments themselves, not by reliance on a different system. Given
the differences between the two systems, asking an investment arbitral tribunal to pose
as a human rights tribunal is not a suitable solution to a problem pertaining to the lack
of protection of an individual.
B. Human Rights Used to State’s Defense
As described in section II, obligations of a state that arise under provisions of
international investment law are not always seen as compatible with human rights
obligations. Consequently, states might feel compelled to disregard one in order to
comply with the other. The need to observe human rights has been used as states’
defence against investors’ claims in several cases.
Respondent states varied in their strategy and the level of elaboration they used when
arguing their case. Some called to their defence human rights without any specification
; some argued with a specific right or rights that were in jeopardy.
Human rights in general were invoked in
CMS Gas v Argentina
,
34
where Argentina
argued that investment rights have to give way to human right instruments where the
latter is threatened; it stated: “as the economic and social crisis that affected the country
compromised basic human rights, no investment treaty could prevail as it would be in
violation of such constitutionally recognized rights
.
”
35
In
Siemens v Argentina
,36 the
state again pointed to the social and economic situation; it claimed that human rights
“would be disregarded by recognizing the property rights asserted by the Claimant
33
Reiner and Schreuer (n 16) 96.
34
CMS Gas Transmission Company v the Argentine Republic
(Award of 12 May 2005) ICSID Case No
ARB/01/8.
35
ibid [114].
36
Siemens AG v the Argentine Republic
(Award of 6 February 2007) ICSID Case No ARB/02/8.