156 / 610
154
obligations.
77
The BIT in
Sempra v Argentina
contained such provision, but it only lead
the tribunal to apply the standard from customary international law. The respective
provision read:
‘This Treaty shall not preclude the application by either Party of measures necessary
for the maintenance of public order, the fulfillment of its obligations with respect to the
maintenance or restoration of international peace or security, or the protection of its
own essential security interests.‘
78
The tribunal ruled that the treaty did not define the term ‘essential security interest’
and interpreted it in the light of the definition of state of necessity from customary
international law as stated in Art 25 of the ILC Draft Articles.
79
Reasons why human rights arguments in
SAUR v Argentina
failed are less clear. In
this case the tribunal acknowledged that human rights should be taken into account;
80
however, they should be balanced against BIT rights.
81
Without mentioning human
rights again, the tribunal ultimately found a breach of the BIT and awarded damages.
82
A rather special situation emerged in
Biwater v Tanzania
. The issue of human rights
was raised by
amici curiae
(see section III.B). Tanzania was found guilty of breach of
the BIT,
83
meaning that the obligation to observe human rights did not prevent the
state from finding itself in a breach of a contract. However, as discussed in section V.C,
the investor was not awarded any damages in this case.
If the above described cases are any indicator of the overall situation, it is extremely
difficult for a state to use human rights arguments and plea the state of necessity.
The standard from customary international is very difficult to achieve and the BIT
provisions do not soften it. As proposed in section III.B, the fact that states are aware
that if they use certain measures to secure the protection of human rights, they might
face law suit from investors, threatens the level of protection of human rights.
C. Successful Use of Human Rights Arguments
The outcome of the remaining cases that were examined,
Al-Warraq v Indonesia
and
parallel cases of
Veteran Petroleum Limited v Russia
,
Yukos Universal Limited v Russia
,
and
Hulley Enterprises Limited v Russia
, should be briefly mentioned.
In
Al-Warraq v Indonesia
, the breach of investors human rights in the form of
denial of justice amounted to the breach of fair and equitable treatment provision
77
Vivendi v Argentina
(n 39) [270], cf [267].
78
Sempra v Argentina
(n 38) [365].
79
Sempra v Argentina
(n 38) [375], [376].
80
SAUR International SA v Argentine Republic
(Decisión Sobre Jurisdicción y Sobre Responsabilidad of 6
June 2012) ICSID Case No ARB/04/4 [330].
81
ibid [331].
82
ibid page 140.
83
ibid [519], [605].