Analogies and Other Regimes of International Law
The Foundations of International Investment Law: Bringing Theory into Practice, Z. Douglas, J. Pauwelyn, and J.E. Viñuales, eds., Oxford University Press, 2014, Forthcoming
38 Pages Posted: 20 Aug 2013
Date Written: August 1, 2013
The starting point of this chapter is that investment law partly borrows and partly diverges from pre-existing regimes of international law, and an interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures. Since investment law may be viewed as a normative progeny of multiple regimes of international law, the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law. The argument will be made in three steps. First, in order to situate investment protection law within the broader international legal order, one might draw upon multiple legal techniques from established legal regimes. The models of direct rights, beneficiary rights, and agency will be suggested as the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection (section II). A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law. The second step of the argument will apply the different perspectives identified earlier to aspects of interpretation and law-making in investment protection law (section III). Thirdly, certain elements of the law of State responsibility will be considered, again from the three different perspectives identified before (section IV). The concluding section will briefly and tentatively suggest further scope for operation of analogy, particularly regarding the imposition of obligations on investors. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.
Keywords: Analogies, International Law, Investment Protection Law, Human Rights Law, Diplomatic Protection, Law of Treaties, State Responsibility
JEL Classification: F02, F10, F13, F14, F15, K33
Suggested Citation: Suggested Citation