1] The environment as a prerequisite for the enjoyment of human rights (implying that human rights obligations of states must include the duty to ensure the level of environmental protection necessary to enable the full exercise of protected rights); [2] Certain human rights, especially access to information, participation in decision-making and access to justice in environmental matters, as essential for good environmental decision-making, (which implies that human rights must be implemented in order to ensure environmental protection; and [3] The right to a safe, healthy and ecologically balanced environment as a human right in itself (this approach has been debated)."20. Next, Chapter 3 focuses on human rights arguments raised by the host states and the amici in support of the host state's defense.
INTERNATIONAL INVESTMENT LAW AND INTERNATIONAL HUMAN RIGHTS
A Synopsis of the General Debate
In: PierreMarie Dupuy, Francesco Francioni and Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration. Balancing Human Rights and Investment Law in the Inter-American System of Human Rights. eds), Human Rights in International Investment Law and Arbitration.
Investment Tribunals’ References to Human Rights Jurisprudence as Evidence of
Furthermore, there are cases where the arbitral tribunals have made use of the principle of proportionality – a principle used by the ECtHR to determine whether or not there has been a violation of Article 1 of Protocol No. 1 of the ECHR (Protection of Property) – to decide depending on the existence or not of an indirect expropriation. Mexico was the first case in which an arbitral tribunal made use of the principle of proportionality.43 In its ruling, the tribunal referred in particular to the case law of the ECtHR on the principle of proportionality.
Inserting Human Rights Arguments in Investor-State Arbitration: The Principal
"Provisions or References to Human and Environmental Rights in the Investment Agreement" of this paper. Human rights and created human rights: corporations and human rights.
Human Rights Law as Applicable Law
Systemic Integration of Human Rights by Resource to Article 31(3)(c) of the VCLT…
Romania: invoking investor rights under the ECHR In the case of The Rompetrol Group v. One of the arguments in the host state's defense concerned the compatibility of the investment treaty provisions with human rights treaties.
Human Rights Provisions or References in the International Investment Agreement
Amicus Curiae Submissions
HUMAN RIGHTS ARGUMENTS: A SWORD FOR THE INVESTOR
- INVESTOR CLAIMING ITS ‘HUMAN’ RIGHTS VIOLATION
- Investor’s Independent Human Rights Claims
- Investor’s Human Rights in Support of Treaty Violations
The Tribunal, after rejecting the allegations of the Respondent that the arrest, detention and deportation of Mr. Biloune's interest in the company.105 In other words, investors' human rights violations were evaluated by the tribunal as part of the expropriation claim.
The Rompetrol Group v. Romania: invocation of investor’s rights under the ECHR
In order to justify his claims, the investor claimed that "the conduct of the investigations by the PNA deliberately circumvented the procedural requirements by artificially preserving and rem investigations". The tribunal also suggested that the plaintiff should consider the possibility of filing a lawsuit with the ECtHR.
Pey Casado v. Chile: invocation of investor’s rights under the ECHR
The Claimants brought before the Center claims for a creeping expropriation and a denial of justice in violation of the Chile-Spain APPI (Accuerdo para Proteccion y Promotion de Inversiones). Indeed, the tribunal recognized that unusually long procedural terms constitute one of the typical forms of denial of justice.159.
Al Warraq v. Indonesia: invocation of investor’s rights under the ICCPR
Malta case: "The right to a citizenship is not included in the Convention or in any of the Protocols thereto. The interpretation and application of the European Convention of Human Rights: Legal and Practical Implications."
AMTO v. Ukraine and Yukos v. Russia: parallel proceedings before the ECtHR
Further Considerations
In the Armenia case, the Court found a violation of Article 10 of the ECHR – violation of the right to freedom of expression because there was insufficient transparency in the process after which the transmission permission had been refused. Similarly, the promotion of a human rights framework beyond the economic nature of investment protection could be considered through a possible extension of the IIA's protection to NGOs.
ENVIRONMENTAL ARGUMENTS IN SUPPORT OF INVESTORS’ CLAIMS: THE
Below, after presenting the main facts and positions of both parties (A), I will focus on the positions of the parties and the court regarding the importance of the state's obligations under international environmental treaties with FET and FPS standards (B and C, respectively), and the court's consideration of the existence of a wider group of interested parties in the critical area of the alleged environmental degradation (D). Finally, I make some concluding remarks based on the price and potential claims of future investors based on environmental-human rights (E) arguments.
The Facts and the Parties’ Positions
Before turning to the views of the parties and the court regarding the alleged violations of the FET and FPD standards (Elements B and C), we must note that before addressing the alleged violations of the BIT, the court first examined whether the actual deterioration of the environment and the actual deterioration of the water quality of the sanctuary in critical period, and concluded that the claimant failed to prove that there had been a deterioration of the environment. In addition, the court supported that even if it was believed that there was environmental degradation during the critical period, no evidence was presented that such degradation was caused by the poor management of state bodies.197 Therefore, the court concluded that in any circumstances, the applicants the claim fails the factual threshold because the applicant has failed to demonstrate that the alleged loss or damage to his investment can be attributed to any acts or omissions of the host country.
State’s Obligations under Environmental Treaties & Investor’s Legitimate Expectation
Would the application of international human rights law involve illegitimate review of BIT terms and nationality law by a court. Ecuador, the relevance and importance of international human rights law and environmental law can be seen from the interpretation of the host country's constitutional provisions (which include international human rights norms), in the expert report and the court's analysis.
State’s Obligations under Environmental Treaties & the FPS Standard
Tribunal’s Considerations over the Existence of a Wider Group of Stakeholders
Concluding Remarks and Further Considerations
In other words, the FET standard cannot be interpreted as imposing unrealistic obligations on host states, and "the state's obligation does not relieve the investor of the obligation to assess the circumstances. The nationality of the investor is determined by the national law of the state whose citizenship is claimed.240 But as the court in Siag v.
The Investor’s Right to a Nationality in Pey Casado v. Chile
This declaration, together with proof of Spanish residence and an explanatory statement addressed to the Ministry of the Interior of Chile, were considered by the tribunal as a valid voluntary renunciation of Mr. Pey Casado's Chilean nationality. Chile, decision on the Republic of Chile's application for annulment, 18 December 2012, paragraph 102.
Considerations on the Soufraki v. UAE case in light of the Right to a Nationality
This is quite a paradox which could be prevented by the claimant's invocation of the right to nationality in investor-state arbitration. Finally, the question that arises is whether international human rights law could override the function of national law in determining nationality in favor of the claimant.
The Inconsistency between the Nationality Requirements used for Individuals and those
UAE case where the court clearly commented that the claimant could have avoided the adverse outcome of the declined jurisdiction if he had incorporated a company car in Italy instead of contracting in his personal capacity.272. The Ukraine case was favorable to the claimant, a legal entity incorporated in Lithuania but controlled by Ukrainian nationals - nationals of the host state.
Concluding Remarks
HUMAN RIGHTS ARGUMENTS: A SHIELD FOR THE HOST STATE
- INVOCATION OF INTERNATIONAL HUMAN RIGHTS LAW BY THE HOST STATE
- Invocation of the Right to Water in the Water Privatization Cases
Azurix v. Argentina: compatibility of investment treaty provisions with human rights
Biwater v. Tanzania: the host State’s margin of appreciation and ECtHR jurisprudence
While the host state privatized its water system in 2003 by transferring control to a subsidiary, Biwater City Water Systems (CWS), it took control in 2005 by seizing the investor's funds and occupying CWS's facilities when it found that CWS management had degraded the water system and caused water supply problems. Indeed, the amici made very strong arguments that included every aspect that could support a human rights-based defense, from the investor's responsibility and obligation to due diligence and good faith to the state's obligation to protect the right to water.
Aguas Argentinas SA v. Argentina: invocation of the right to water in support of a necessity
Regarding the human rights arguments made by the host states, the promotion of human rights argumentation is evident in the water privatization cases. Ecuador, the tribunal strongly considered the expert's opinion on the risks that extractive industries pose to the enjoyment of the host state population's human rights.
Saur v. Argentina: recognition of the right to water as part of the general principles of
Concluding Remarks
Host State’s Invocation of the WHO Framework Convention on Tobacco Control in
HOST STATE DEFENSE RELIANCE ON DOMESTIC HUMAN RIGHTS AND
The Glamis Gold v. United States case
The US was concerned with host state measures related to open-pit mining operations.356 The challenged measures, which imposed various cleanup obligations on the mining site, were designed to mitigate damage to the environment and Native American cultural sites. of the Quechan Indian Nation. . Moreover, the court denied a violation of the FET standard, having established and applied the Neer case's high threshold, meaning the minimum standard of treatment in customary international law, as codified in Article 1105 of the NAFTA.
The Pac Rim v. El Salvador case
Despite the host state's defense relying on national human rights and environmental provisions, in the pending case of Perenco v. On the Meanings of International Investment Law and International Human Rights Law: The Alternative Narrative of Due Diligence.
Host State’s Environmental Counterclaim in Perenco v. Ecuador
Environmental Provisions in the FTA: the case of Al Tamini v. Oman
FINAL CONCLUSIONS
Concluding remarks and further considerations have been thoroughly discussed at the end of each of the chapters in this article. At this point, I present the main conclusions of the chapters with respect to the questions raised at the beginning and offer some further considerations resulting from an overview of this study.
Frequency and Quality of Human Rights Arguments: Evidence of Change
On the other hand, in the mining cases presented, where human rights and environmental issues were in the spotlight, the host states chose to rely primarily on the host state's domestic law to build their defense cases. Still, developments in IHRL can further inform the context of domestic human rights and environmental provisions and strengthen host state defenses, protecting the human rights of the host state population more effectively.
Systemic Integration: the Most Common Avenue for Inserting Human Rights Arguments
The United States argued amici that the Court should interpret the NAFTA provisions in accordance with relevant international human rights norms. Nevertheless, the Court's interpretation of the preservation of rights provision in the Roussalis case leaves room for the acceptance of investors' independent human rights claims in the future.422 Finally, the admission of the host state's environmental counterclaim, in the recent case of Perenco v.
The Tribunals’ Response to Human Rights Arguments; What Makes a Strong
PierreMarie Dupuy, Francesco Francioni and Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration. Realizing Human Rights in Investment Treaty Arbitration: A Perspective from the International Investment Law Toolbox.
