163 / 610
161
focused on the casual link of events and it helped to convince the tribunal that any
damage incurred by the investor was not attributable to the state.
Amicus curiae
on its own cannot change the standard for invoking the state of
necessity. However, it may draw attention to the problem and spark discussions on
the topic. If there is an extensive debate on the conflicts between human rights and
investment treaty rights, international community may decide to redraw the line
which separates measures that states can adopt without fearing law suits from the ones
they cannot.
VI. Conclusion
The system of protection of human rights and the system of protection of investment
treaty rights were created for different purposes and are governed by different principles.
Occasionally they meet in the same proceedings; in the past, these interactions had two
forms. In the first instance it was the investor who raised the topic when he claimed
that the state breached his human rights. In the second it was the state, who attempted
to use the need to comply with human rights obligations to defend measures that
allegedly breached its obligations towards an investor.
Majority of these arguments failed. The investors ran into the problem of a lack
of jurisdiction of the tribunal. Due to the wording of investment treaties, tribunals
ordinarily have jurisdiction over disputes pertaining to an investment or to a breach
of obligations contained in investment treaties. They are not entitled to decide on a
breach of a human rights instrument. However, the fact that breaches of human rights
cannot be raised independently in investment arbitration does not pose a threat to the
overall level of protection of human rights. Human rights violation can be and should
be primarily dealt with through means designed by human rights instruments.
The states were not successful in their defense based on human rights as their arguments
were understood as a plea of necessity. Conditions under which the principle of state of
necessity can be invoked are very strict and difficult to meet. Tribunals ruled that factual
circumstances of the case did not fulfill them and found that the need to observe human
rights obligations did not prevent states from breaching investment treaties. In other
cases, states failed since they have not been able to develop the argument.
This second group of cases can have a negative impact on observation of human
rights instruments. States may feel restricted in the choice of measures they can adopt
in order to comply with human rights standards, as any measure that would have an
inverse effect rights of an investor can trigger a very costly law suit. In these instances
human rights need to be promoted.
Participation of
amicus curiae
in the proceedings has several positive effects, which
can help to endorse the protection of human rights in international investment
arbitration. It increases transparency and it can draw attention to the topic and spark a
public debate.
Amicus curiae
is not able to change the standard of the state of necessity;