International Human Rights and the Interpretation of International Investment Treaties – Constitutional Considerations
Freya Baetens (ed.), The Interaction of International Investment Law with Other Fields of Public International Law (Cambridge Univ. Press 2013)
21 Pages Posted: 26 Jun 2013 Last revised: 1 May 2015
Date Written: February 1, 2013
The absence of articulations of public goods (beyond investment protection) in most international investment treaties has led to calls for these treaties to be interpreted by reference to other areas of international law, such as international human rights law. Relying upon Article 31(3)(c) of the Vienna Convention on Law of Treaties, it has been suggested that taking into account the international human rights obligations of parties to international investment treaties will serve the purpose of providing greater balance to the interpretation of investment treaties, and even greater clarity. This paper looks at this claim. Part I expands upon the political-legal character of investment treaties, explaining how these agreements have largely adopted standards-type norms instead of rules-type norms in articulating the protections owed by host States to foreign investors. Part II looks at the difficult issues created by such imprecise treaty drafting in the interpretation and application of the protection against indirect expropriation found in investment treaties. Part III considers proposals to resolve this interpretive difficulty through the use of the principle of proportionality and reference to human rights instruments. Part IV concludes with the suggestion that rather than relying upon unpredictable applications of rules of treaty interpretation, States would be better advised to clarify their investment treaties and explicate the scope of the guarantees of protection provided there under – as a number of States have begun to do.
Keywords: Investment Treaties, Treaty Interpretation, International Human Rights, Public International Law
JEL Classification: K33
Suggested Citation: Suggested Citation