Investment Tribunals and Human Rights: Divergent Paths

Abstract:     
The topic of interactions between various branches of international law attracts widespread attention from scholars and international lawyers and the spotlight has recently been directed to the interface between international investment and human rights laws.

International human rights and investment laws share some common traits but also present some basically different characteristics. Developments in both spheres reflect a fundamental structural change in international law since World War II. International law rules in these spheres enhance the legal protection of individuals (including foreign investors), as well as various associations and legal persons that are active in these spheres (such as non-governmental organizations and transnational corporations).

International legal rules protecting individuals and foreign investors grew from the law of state responsibility for injuries to aliens. One of the most fundamental features that is common to both international human rights and investment laws is the asymmetric legal relationship between sovereign states and individuals (including foreign investors). States are in a superior position vis-a-vis individuals and foreign investors.

Consequently, legal rules and institutions developed in these spheres strive to compensate the inferior position of individuals and investors under the domestic law by enhancing legal protection at the international level. While these two branches of international law address a structurally similar challenge, they have evolved along different normative and institutional paths.

Section II of this chapter briefly presents the case law of international investment tribunals that have encountered various arguments regarding the applicability and relevance of international human rights law to investment disputes. Section III briefly analyses the approach emerging from the above investment awards. Section IV discusses certain factors leading investment tribunals to adopt a reserved approach towards international human rights law, highlighting the divergence of these two legal fields along the private/ public divide, as well as the employment of this approach as an instrument for evading divisive issues in international human rights law (de-politicization strategy).

Keywords: Foreign Investment, Human Rights, International Economic Law, International Economic Law

JEL Classification: K20, K22

Accepted Paper Series