Regime Accommodation in International Law : Human Rights in International Economic Law and Policy [1 ed.] 9789004325517, 9789004325500

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Regime Accommodation in International Law

Regime Accommodation in International Law Human Rights in International Economic Law and Policy By

Heejin Kim

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Kim, Heejin, author. Title: Regime accommodation in international law : human rights in  international economic law and policy / by Heejin Kim. Description: Leiden : Brill ; Boston : Nijhoff, 2016. | Includes  bibliographical references and index. Identifiers: LCCN 2016021884 (print) | LCCN 2016022000 (ebook) | ISBN  9789004325500 (hardback : alk. paper) | ISBN 9789004325517 (E-book) Subjects: LCSH: International economic relations. | Foreign trade regulation.  | Investments, Foreign—Law and legislation. | Human rights. Classification: LCC K3820 .K556 2016 (print) | LCC K3820 (ebook) | DDC  341.4/8—dc23 LC record available at https://lccn.loc.gov/2016021884

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-32550-0 (hardback) isbn 978-90-04-32551-7 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgements ix List of Abbreviations xii Table of Cases xv 1 The Problem 1 A “A Relationship to Discover” 2 B The Structure of the Research Project 7 2 The Conceptual Framework: Interaction and the Conflict of Multiple International Regimes 10 A Meaning of International “Regime” 10 1 Regime in International Relations Scholarship 10 2 Regime in International Legal Scholarship and Jurisprudence 14 3 Summary 24 B Regime Interaction and Conflict in International Law 25 1 Primary Reasons for the Growing Regime Conflict 27 1.1 Fragmentation of International Law 27 1.2 Difficulties of Conflict Management in International Law 29 2 Multiple Dimensions of the Regime Conflict 30 3 Norm Conflict in International Law 32 3.1 The Narrow Definition of Conflict 33 3.2 The Broad Definition of Conflict 42 3.3 Summary 45 C Regime Accommodation in International Law 47 1 Legislative Accommodation 48 2 Administrative Accommodation 50 3 Adjudicative Accommodation 51 3 Regime Interaction and Conflict between International Human Rights and Economic Law in the Context of Historical Evolution of International Law and Institution 53 A International Law in Permanent Development 53 B The Advent of International Law 55

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Contents

1

C

D

Precursors of International Law in Pre-Westphalia Era 55 1.1 Searching for the Foundations of Human Rights 57 1.2 Discovery of New Continents 58 1.3 Growing Sovereign Interests in International Commerce 59 1.4 Rise of Private Merchants 61 1.5 Implications 62 2 The Rise of the Modern Law of Nations 62 2.1 The State-centric Perspective of the Law of Nations 64 2.2 The Unpopular Notion: Human Rights Protection through International Law 67 2.3 State-building Efforts and the Early Development of International Economic Regulation 75 2.4 International Codification Conferences 94 International Human Rights and Economic Law Regimes 97 1 Background 97 2 The Rise of International Human Rights Law Regime 100 2.1 UN-based Human Rights Arrangements 101 2.2 Regional Human Rights Protection Mechanisms 118 2.3 Features of the Development in International Human Rights Regime 122 3 International Economic Law—The Promotion of Free Trade and Foreign Investment 131 3.1 The Early Construction of the International Trading System and the Legal Regulation of Foreign Investment 131 3.2 Between Bilateralism and Multilateralism 140 Common Grounds 167 1 Treaty-based Foundations—Binding Rights and Obligations 167 2 Equal Status 169 3 International Agreements Governed by Public International Law 170 4 The “Public” Nature—Relationship between States and the Individuals 171 5 Aims for Peace and Security of International Community 172

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4 The Project of Regime Accommodation: Managing Interaction and Conflict between International Human Rights and Economic Law 175 A Legislative Efforts and Administrative Coordination 176 1 Relationship with External International Agreements and Organizations 176 1.1 Coexisting Rights and Obligations in Other International Agreements 176 1.2 Priority of One Treaty Over Another 178 1.3 Coordination with Other International Organizations 181 2 Environmental Regulation in International Economic Law and Policy 182 2.1 Multilateral Setting 182 2.2 Regional and Bilateral Setting 187 3 Labor Standards in International Economic Law and Policy 191 3.1 Multilateral Setting 191 3.2 Regional and Bilateral Setting 193 4 The Relationship between Human Rights and International Economic Law and Policy 199 4.1 The Work of UN Human Rights Agencies and Other Organizations 199 4.2 The Field of International Economic Law and Policy 213 B IEL Adjudication in the WTO, the ICSID, and Other Settings 229 1 International Courts and Tribunals (ICs) in Conflict Resolution and Management 229 1.1 Conventional Conflict Resolution Techniques 230 1.2 Other Conflict Resolution Techniques 260 2 Environmental and Social Protection in the WTO Adjudication 262 2.1 GATT Cases Involving Environmental and Social Regulations 262 2.2 WTO Disputes Involving Environmental and Social Regulations 266 3 Environmental and Social Protection in the Investor–State Arbitration 283 3.1 Claims of Foreign Investors 283 3.2 Counterclaims of the Host States 286 3.3 Non-Disputing Parties Submission 296 3.4 Arbitral Tribunals 306

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Contents

5 Guidelines for Decision-makers: Human Rights in International Economic Law and Policy 316 A IEL’s Approaches to Accommodate Human Rights 316 1 Legislative Accommodation 316 2 Administrative Accommodation 318 3 Adjudicatory Accommodation—Practices by the WTO Dispute Settlement Bodies and Investment Tribunals 319 B Concluding Remarks 322 Selected Bibliography 325 Index 358

Acknowledgements I am grateful for this precious opportunity to present my own thoughts in understanding and solving international legal problems—the vexing problems which have attracted my attention for a long time. The idea of this book, “Regime Accommodation in International Law: Human Rights in International Economic Law and Policy” is originally developed from J.S.D. dissertation which I submitted at Yale Law School. In the midst of intense intellectual and personal journey, I received valuable guidance and inspiration from various individuals. First of all, I wish to dedicate a special word of gratitude to Professor W. Michael Reisman. I am greatly indebted to him for his supervision. As my LL.M. faculty advisor and J.S.D. supervisor, he patiently guided me to walk towards the completion of the doctoral program. Likewise, I wish to thank readers of J.S.D. Committee, Professors Lea Brilmayer, Harold Hongju Koh, and James Silk for their mentorship. I also acknowledge tremendous support of Ms. Cina Santos who guided my student life at Yale in many ways. Librarians and staffs of the Lillian Goldman Law Library provided me incredible research advice. As a member of the Korean Academy of Government-supported Scholars, I had a privilege of receiving scholarship awarded by the National Institute for International Education of Korea during my graduate research in New Haven. With the generous grants of the Lillian Goldman Scholarship and the Howard M. Holtzmann Fellowship in International Arbitration and Dispute Resolution at Yale Law School, the groundwork of this book was completed. My gratitude extends to great mentors, trustworthy colleagues and loving friends in New Haven, The Hague, Singapore, Seoul, and other places. I deeply appreciate supports of Diego Werneck Arguelhes, Xiaodong Ding, Nartnirun Junngam, Adrian Kuenzler, Lucas MacClure, Danny Maggen, Vicky De Mesmaecker, Viviane Meunier, Geeyoung Min, Jaclyn Neo, Gregor Novak, Carol Pang, Shitong Qiao, Johannes Sauer, Katharina Isabel Schmidt, Jingxia Shi, Yoonjin Shin, Nora Stappert, Scott Stephenson, Amnart Tangkiriphimarn, Bryan Dennis Tiojanco, Maja Munivrana Vajda, Zhiqiang Wang, Chanyoung Yang, Zuo Yilu, Roma Zinigrad, during my LL.M. and J.S.D. years. In developing this research project, I also learned a great joy of intellectual exchanges from thought-provoking discussions with many of them. I give thanks to Assistant Dean Gordon Silverstein and Director Maria Dino for their unending support for the graduate community. I had a great honor to work at the Presidency of the International Criminal Court in The Hague as a law clerk during the academic year of 2013–2014.

x

Acknowledgements

President Sang Hyun Song guided me with his wonderful mentorship throughout my time at the Court. Philip Ambach, Kathleen Claussen, Matias Hellman, Scarlet Kim, Judge Junghwan Rhee, and Adriana Olvera enriched the Hague chapter of my life. In 2015, I made another decision to explore a new and challenging environment, and this time, direction was headed towards Southeast Asia. While writing and editing this manuscript, I received various research resources from the Faculty of Law, National University of Singapore. I especially give thanks to Professors M. Sornarajah, James Penner, Dan W. Puchniak and Mrs. Norah Puchniak. Associate Dean Jayagowry d/o Appalasamy, and Ms. Kris Wenxin Zhao provided essential administrative supports which made the whole transition to Singaporean life much smoother. Marie Sheldon and John Bennett of Brill-Nijhoff kindly supported me throughout publication process and walked with me towards the final completion. On a personal note, without friendship of Sanghee Cho, Taeeun Chung, Grace Jungmin Han, Yunjoo Hwang, Dong Kyu Jang, Jin Wook Jang, Yoona Kang, Edward Bohyun and Amy Kyungmi Kim, Kabin Kim, Minjin Kim, Jiyoung Ko, Eunhee Lee, Karen Lee, Yeon Jin Kim and Seung Hoon Lee, Hanna Na and Suekyung Park, I would never be able to get through frustrating moments in the process of writing this book. Pastors Jeong Ik Lee, Justin Kendrick and Choong Ki Park guided me with their spiritual mentorship in times of difficulties. Heartfelt thanks are also due to Professors Deock Young Park at Yonsei Law School and Jae Hyung Lee at Korea University Law School, and Director Kyung Woo Lee, National Human Rights Commission of Korea for their longstanding support along the way. From the bottom of my heart, I would like to express deep gratitude to my parents, Boo Kon Kim and Dr. Kyung Sook Hwang, and my brother, Jong Hoon Kim who have greatly encouraged me every possible way. I also thank my grandmother, Byung Ho Sohn for her abundant love for our entire family. Due to warm and loving environment that my grandparents made, I received gifts of fun childhood memories that I cherish so dearly. Born in a conservative, rural neighborhood in Korea, she was unable to fully enjoy benefits of education, like most women in her times. She had to live through a tough colonial rule and wartime that swept through my country. However, she fully understands the importance and value of women’s education by heart. Her legacy has deeply inspired my mother and myself to pursue academic career to this date. Finally, I will endeavor to make my future scholarship and works in this field will ultimately aim at enhancing living conditions of vulnerable groups of people involved in the legal problems I investigate. I hope that my strong

Acknowledgements

xi

interests in developing theoretic analysis and fine legal argument will not blur my eyes to see what happens in the real world. Here I seek His unfailing love to be the faithful guide, for whatever challenges I encounter at different stages of life. Views expressed in this book are my own, and all errors are surely mine. Heejin Kim

Singapore, January 2016

List of Abbreviations AB ACP AU ASEAN BITs CARIFORUM CAT CBD CCPR CEDAW CESCR CHR COMESA CPED CRC CRPD CSR CTE CTS DSB DSU ECHR ECOSOC ECOWAS ECtHR ECT EFTA EPA ESC Rights EU FAO FCN

Appellate Body Community of African, Caribbean and Pacific States African Union Association of Southeast Asian Nations Bilateral Investment Treaties Caribbean Forum Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on Biological Diversity Human Rights Committee Convention on the Elimination of All Forms of Discrimination Against Women Committee on Economic, Social and Cultural Rights United Nations Commission on Human Rights Common Market for Eastern and Southern Africa International Convention for the Protection of All Persons from Enforced Disappearance Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Corporate social responsibility WTO Committee on Trade Environment WTO Council for Trade in Services Dispute Settlement Body Dispute Settlement Understanding European Convention on Human Rights Economic and Social Council The Community Court of Justice of the Economic Community of West African States European Court of Human Rights Energy Charter Treaty European Free Trade Association Economic Partnership Agreement Economic, Social and Cultural Rights European Union Food and Agriculture Organization Friendship, Commerce and Navigation

List of Abbreviations

FCCC FCTC FDI FET FTAs GATS GATT HRC IBRD ICCPR ICERD

xiii

UN Framework Convention on Global Climate Change Framework Convention on Tobacco Control Foreign Direct Investments Fair and equitable treatment Free Trade Agreements General Agreement on Trade in Services General Agreement on Tariffs and Trade Human Rights Council International Bank for Reconstruction and Development International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICommHR Inter-American Commission on Human Rights ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ICSID International Centre for Settlement of Investment Disputes ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of Other States IEL International Economic Law IIAs International Investment Agreements ILC International Law Commission ILO International Labor Organization IMF International Monetary Fund ITO International Trade Organization ITU International Telecommunication Union KPCS Kimberley Process Certification Scheme for Rough Diamonds LDCs Least developed countries MAI Multilateral Agreement on Investment MEAs Multilateral Environmental Agreements MFN Most Favored Nation MIGA Multilateral Investment Guarantee Agency NAFTA North American Free Trade Agreement NIEO New International Economic Order NPR-PPMs non-product related process and production methods

xiv OECD OHCHR

List of Abbreviations

Organization for Economic Co-operation and Development United Nations Office of the High Commissioner for Human Rights PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice PTAs Plurilateral Trade Agreements SACU Southern African Customs Union SADC South African Development Community SCM Agreement on Subsidies and Countervailing Measures SPS Sanitary or phytosanitary protection TBT Agreement on Technical Barriers to Trade TPRM Trade Policy Review Mechanism TRIMs Trade-Related Investment Measures TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights UN United Nations UNEP United Nations Environment Programme UNGA UN General Assembly UNCITRAL United Nations Commission on International Trade Law UNCTAD United Nations Conference on Trade and Development VCLT Vienna Convention on the Law of Treaties WHO World Health Organization WIPO World Intellectual Property Organization WTO World Trade Organization

Table of Cases

Inter-State & Investor-State Arbitration

ADC Affiliate Limited, ADC & ADMC Management Limited v. Republic of Hungary, ICSID Case No. ARB/03/16, Award (October 2, 2006) 310 Aguas del Tunari S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Jurisdiction (October 21, 2005) 297 Asian Agricultural Products Ltd v. Sri Lanka, ICSID Case No. ARB/87/3, Award (June 27, 1990) 155, 165 Azurix Corp. v. Argentine Republic, ICSID Case No. ARB/01/12, Decision on Jurisdiction (December 8, 2003); Azurix Corp. v. Argentine Republic, ICSID Case No. ARB/01/12, Award (July 14, 2006) 311 Bernhard von Pezold and others v. Zimbabwe, ICSID Case No. ARB/10/15 and Border Timbers and others v. Zimbabwe ICSID Case No. ARB/10/12, Procedural Order 2 (June 26, 2012) 302 Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana, UNCITRAL Award on Jurisdiction and Liability, 95 I.L.R. 184 (October 27, 1989) 284 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No 5 (February 2, 2007) 301 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (July 24, 2008) 292 CMS Czech Republic B.V. v. Czech Republic, ICSID Case No. ARB/01/18, Award, (May 12, 2005) 310 Compania del Desarrollo de Santa Elena SA v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award, (February 17, 2000) 290 FTR Holding SA, Philip Morris Products S.A. and Abal Hermanos SA v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Decision on Jurisdiction (July 2, 2013) 294 Glamis Gold Ltd v. United States of America, UNCITRAL, Award (June 8, 2009) 304 In the Arbitration Regarding the Iron Rhine (IJzeren Rijn) Railway (Belgium v. the Netherlands), Award of the Tribunal of May 24, 2005 311 Ioan Micula, Viorel Micula, S.C. European Food S.A., S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, Decision on Jurisdiction and Admissibility, ICSID Case No. ARB/05/20 (September 24, 2008) 312 Lauder v. The Czech Republic, UNCITRAL, Award (September 3, 2001) 307

xvi

Table of Cases

Kardassopoulos v. Georgia, Decision on Jurisdiction, ICSID Case No. ARB/05/18 (July 6, 2007) 311 L.F.H. Neer and Pauline E. Neer (United States v. Mexico), Award, 1926 R.I.A.A., Vol. IV, 60 (October 15) 135 Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1, Award (August 30, 2000) 310 Methanex Corporation v. United States of America, Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae (January 15, 2001) 297 Methanex Corp. v. United States of America, UNCITRAL Final Award of the Tribunal on Jurisdiction and Merits (August 3, 2005) 297 Mondev International Ltd v. United States of America, ICSID Case No. ARB(AF)/99/2, Award (October 11, 2002) 306 Parkerings-Compagniet AS v. Republic of Lithuania, Award, ICSID Case No. ARB/05/8, (September 11, 2007) 313 Petrobart Limited v. The Kyrgyz Republic, Arbitration No. 126/2003, Arbitration Institute of the Stockholm Chamber of Commerce (Energy Charter Treaty)(March 29, 2005) 310 Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Decision on Jurisdiction (July 2, 2013) 294 Phoenix Action, Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Award (April 15, 2009) 313 Piero Foresti et al. v. Republic of South Africa, ICSID Case No. ARB(AF)/07/01, Award (August 4, 2010) 310 S.D. Myers, Inc. v. Canada, UNICTRAL Award (Merits)(November 13, 2000) 310 Southern Pacific Properties (Middle East) Ltd v. The Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits (May 20, 1992) 288 Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Award (December 7, 2011) 285 Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (July 30, 2010) 314 Técnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. 00/2, Award (May 29, 2003) 307 Trailer Smelter Arbitration (United States v. Canada) 3 R.I.A.A. 1905 (1938) 15 United States Parcel Service of America v. Canada, UNCITRAL Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae (October 17, 2001) 297

Table of Cases

xvii

Veteran Petroleum Ltd v. Russian Federation, Interim Award on Jurisdiction and Admissibility, PCA Case No. AA 228 (November 30, 2009) 311 Yukos Universal Ltd. v. Russian Federation, Interim Award on Jurisdiction and Admissibility, PCA Case No. AA 227 (November 30, 2009) 311

Permanent Court of International Justice & International Court of Justice

Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, ICJ Report 1988, 57 (March 7) 230 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, 168 (December 19); Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of Jurisdiction and Admissibility, ICJ Reports 2006, 6 (February 3) 159, 237 Barcelona Traction, Light and Power Company, Limited, (Belgium v. Spain), Judgment, I.C.J. Reports 1970, p. 3 (Feburary 5) 123 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18 (Feburary 24) 243 Case Concerning the Gabcíkovo-Nagymaros Project, Judgment, I.C.J. Report, 1997, p. 7 (September 25) 254 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, 14 (June 27) 123–124 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment on Preliminary Objections, ICJ Report 1996, 803 (December 12) 248 Case Concerning Right of Passage over Indian Territory (Portugal v. India), Judgment on Preliminary Objections, ICJ Reports 1957, 125 (November 26) 34–35 Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder (UK, Czechoslovakia, Denmark, Germany & Sweden v. Poland), Judgment, 1929 P.C.I.J. Series A, No. 23, 3 (September 10) 252 Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria) 1939 P.C.I.J. Rep Series A/B, No. 77, 92 (April 4) 240 Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), ICJ Reports 1989, p. 15 (July 20) 309

xviii

Table of Cases

Factory at Chorzow (Germany v. Poland), Jurisdiction, 1927 P.C.I.J. Series A, No. 9, 31 (July 26) 230 Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion, 1932 P.C.I.J. Series A/B, No. 50, 364 (November 15) 253 Island of Palmas Case (Or Miangas) (The Netherlands v. United States of America), Award of the Tribunal, (1928) 2 R.I.A.A. 829 at 870 (Apr. 4) 2 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, ICJ Reports 2012, p. 99 (February 3) 237 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 (June 21) 257 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136 (July 9) 237 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 (July 8) 237 Mavrommatis Palestine Concessions (Greece v. UK), 1924 P.C.I.J. Rep Series B, No. 2, 31 (August 30) 240 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422 (July 20) 238 Rights of Minorities in Upper Silesia (Minority Schools)(Germany v. Poland), Judgment, 1928 P.C.I.J. Series A, No. 15, 3 (April 26) 253 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J. Series A/B, No. 44, 28 (February 4) 135, 252

GATT 1947 Reports and Rulings

Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, adopted on March 22, 1988 (L/6368—35S/98) 150, 262 Thailand—Restrictions on Importation of and International Taxes on Cigarettes, adopted on November 7, 1990 (DS10/R—37S/200) 150, 262 United States—Restrictions on Imports of Tuna, 20 I.L.M. 1594 (1991, not adopted)(DS21/R—39S/155); United States—Restrictions on Imports of Tuna 33 I.L.M. 839 (1994, not adopted) 150

Table of Cases



xix

World Trade Organizations Dispute Settlement Bodies

Request for the Establishment of a Panel by the United States, Brazil— Measures Affecting Patent Protection, WT/DS199/3 (Jan. 9, 2001) 273 China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Panel Report, WT/DS363/R (August 12, 2009); China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Appellate Body Report, WT/DS363/AB/R (December 21, 2009) 276, 277 European Communities—Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/DS291,292,293/R (September 29, 2006) 270 European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Panel Report, WT/DS400/R, WT/DS401R (November 25, 2013); European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Appellate Body Report, WT/DS400/AB/R, WT/DS401/AB/R (May 22, 2014) 278 European Communities—Regime for the Importation, Sale and Distribution of Bananas, Panel Report, WT/DS27/R (May 22, 1997); European Communities—Regime for the Importation, Sale and Distribution, Appellate Body Report, WT/DS27/AB/R (September 9, 1997) 44 Guatemala—Anti-Damping Investigation Regarding Portland Cement from Mexico, Appellate Body Report, WT/DS60/AB/R (November 2, 1998) 40 Indonesia—Certain Measures Affecting the Automobile Industry, Panel Report, WT/DS54/R, WT/DS59/R, WT/DS64/R (July 2, 1998) 35 Korea—Measures Affecting Imports of Fresh, Chilled, and Frozen Beef, Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R (January 10, 2001) 275 Turkey—Restrictions on Imports of Textile and Clothing Products, Panel Report, WT/DS34/R, (May 31, 1999) 36 United States—Import Prohibition of Shrimp and Shrimp Products, Appellate Body, WT/DS58/AB/R (October 12, 1998) 267 United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Panel Report, WT/DS285/R (November 10, 2004); United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Appellate Body, WT/DS285/AB/R (April 7, 2005) 274

xx

Table of Cases

United States—Standards for Reformulated and Conventional Gasoline, Appellate Body Report, WT/DS2/AB/R (April 29, 1996) 266, 267 United States—Tax Treatment for Foreign Sales Corporations, Appellate Body Report, WT/DS108/AB/R (March 20, 2000) 41

European Court of Human Rights and Other Tribunals

Al-Adsani v. United Kingdom, European Court of Human Rights, Judgment, Application No. 35763/97, ECHR 761 (November 21, 2001) 258 Bankovic and others v. Belgium and 16 other contracting States, European Court of Human Rights, Decision on Admissibility, Application No. 52207/99, ECHR 890 (December 12, 2001) 259 Fogarty v. United Kingdom, European Court of Human Rights, Judgment, Application No. 37112/97, ECHR 762 (November 21, 2001) 306 Golder v. United Kingdom, European Court of Human Rights, Judgment, Application No. 4451/70, ECHR 1 (February 21, 1975) 258 James and Others v. United Kingdom, European Court of Human Rights, Judgment, Application no. 8793/79, ECHR 2 (February 21, 1986) 308 Juridical Conditions and Rights of Undocumented Migrants, Judgment, Inter-American Court of Human Rights, Series A, No. 18 (2003) 237 Loizidou v. Turkey, European Court of Human Rights, Judgment, Application No. 15318/89, ECHR 70 (December 18, 1996) 258 Mamatkulov and Askarov v. Turkey, European Court of Human Rights, Judgment, Application Nos. 46827/99; 46951/99, ECHR 64, (February 4, 2005) 259 Marguerite de Joly de Sabla (United States v. Panama), Decision of the Commission, June 29, 1933, 28 American Journal of International Law 602 (1934) 135 McElhinney v. Ireland, European Court of Human Rights, Judgment, Application No. 31253/96, ECHR 763 (November 21, 2001) 306 Prosecutor v. Zoran Kupreškić et al. (Case No. IT-95–16-T), ICTY Trial Chamber Judgment, (January 14, 2000) 236 Mike Campbell v. Zimbabwe, Southern African Development Community Tribunal, SADC (T), 2/2007 121 Sawhoyamaxa Indigenous Community v. Paraguay, Inter-American Court of Human Rights, Judgment, Series C No. 146 (March 26, 2006) 302

CHAPTER 1

The Problem [. . .] but equally it seems to me that the belief that some single formula can in principle be found whereby the diverse ends of men can be harmoniously realized is demonstrably false. If, as I believe, the ends of men are many, and not all of them are in principle compatible with each other, then the possibility of conflict—and of tragedy—can never wholly be eliminated from human life, either personal or social.1 Isaiah Berlin, Two Concepts of Liberty (1958)

…

“That is exactly the point,” said Goethe. “What we agree with leaves us inactive, but contradiction makes us productive.”2 Johann Peter Eckermann, Conversation of Goethe (1827)

∵ The role of international law in international affairs is no longer a modest one. Today’s world is manifestly different from earlier times, when international law was regarded as more of an aspiration than a reality.3 The breadth and depth of international legal regulation have expanded to include various areas such as global trade and investment policy, environmental standards, public health and the prosecution of atrocity crimes, as well as the protection of human rights.4 Contemporary international law is of crucial importance to protecting 1  Isaiah Berlin, Two Concepts of Liberty: An Inaugural Lecture Delivered before the University of Oxford, on 31 October 1958 (Clarendon Press, 1959). 2  Johann Peter Eckermann, Conversation of Goethe, Wednesday, March 28 1827, 175 (John Oxenford transl., Da Capo Press, 1998) (emphasis added). 3  In the early twentieth century, less than a century ago, there was serious skepticism among legal academics as to whether it is feasible and even desirable to have a legal system in an international realm. For a general introduction about this struggle, see Hersch Lauterpacht, The Function of Law in the International Community 5–6 (The Clarendon Press, 1933). 4  Almost 50,000 treaties and international agreements have been registered with the Secretariat of the United Nations (“UN”) under Article 102 of the UN Charter that imposes the registration obligation on the member States. UN, Treaty Series, Treaties and International Agreements registered or filed and recorded with the Secretariat of the United Nations: Cumulative © koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004325517_002

2

CHAPTER 1

the interests of various stakeholders engaging in a range of transnational activities. As every legal order must constantly manage value differences in the society it governs, international law—“imperfect as it is”—provides authoritative means to resolve the antinomies arising from partially compatible, and often conflicting, interests and values in the international community.5 A

“A Relationship to Discover”

International law, “like law in general, has the object of assuring the coexistence of different interests which are worthy of legal protection.”6 The pressing question of how international lawyers can ensure the coexistence of different, and transient, values has been explored in the past. The task of assuring the “coexistence of different interests” is equally important to managing the interrelationship between international human rights and economic law regimes, which has been for international lawyers “a relationship to discover” over the past few decades.7 This book is concerned with the various legal problems arisIndex No. 44 (2011) (available at https://treaties.un.org/doc/Publication/Cumulative%20 Index/UNTS%20Volume%20No%2023512400/cumindex.chrono.en.pdf); UN, Statement of Treaties and International Agreements: Registered or filed and recorded with the Secretariat during the month of June 2013 (2014) (available at https://treaties.un.org/doc/Publication/ Monthly%20Statement/2013/06/monstate.pdf). 5  In this light, international lawyers seek to find the common interest “as may exist, even in the midst of apparent disunity” in international law. Rosalyn Higgins, Conflict of Interests: International Law in a Divided World 8 (Dufour Editions, 1965). 6  Island of Palmas Case (Or Miangas) (The Netherlands v. United States of America), Award of the Tribunal, (1928) 2 R.I.A.A. 829, 870 (Apr. 4); in this case concerning the title to the Island of Palmas (or Miangas), the U.S. claimed its sovereignty over the island in dispute based on the boundaries of the Philippines as defined by Spain and then ceded to the U.S. in 1898 whereas the Netherlands claimed its ownership over the island through the work of East India Company. 7  The phrase, “a relationship to discover” is a quotation from one of the early academic articles written by a renowned international law scholar on this topic. Thomas Cottier, Trade and Human Rights: A Relationship to Discover, 5 J. Int’l Econ. L. 111 (2002); the interrelationship between international human rights and economic law regime has been vastly studied from a range of disciplinary perspectives including legal, political and economic, historical and philosophical discourses. The value of interdisciplinary cross-fertilization has been widely recognized in many legal literatures. See for examples, Human Rights and International Trade (Thomas Cottier, Joost Pauwelyn & Elisabeth Burgi eds., Oxford University Press, 2005); International Trade and Human Rights: Foundations and Conceptual Issues (Frederick M. Abbott, Christine Breining-Kaufmann & Thomas Cottier eds., The University

The Problem

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ing from the multidimensional interaction and conflict between international human rights and economic law regimes. Through different legal means and at different stages of the decision-making process, laws to protect human rights and laws regulating trade and investment interact and conflict within multiple jurisdictions and across a range of complex issues, urging international lawyers to establish better strategies to promote the coexistence of varying regulatory objectives pursued by each legal regime. International regimes for human rights protection, as well as global trade and investment regulation, are primarily built on treaties derived from state consent. The sources of these laws are identified in view of Article 38(1) of the Statute of the International Court of Justice (“ICJ Statute”)8 which has long been recognized as providing the authoritative reference point for the sources of international law. These sub-branches of international law are the basic building blocks of the international legal system, but have thus far tended to operate independently of each other. Traditionally, international human rights and economic law regimes have been conceived to have distinctive orientations towards achieving different policy objectives. Responding to the interests of specific stakeholders, each international regime inevitably gives priority to its own immediate mandates and tasks. These sub-branches of international law have also developed in highly specialized forms of substantive rules and institutional structures. Indeed, one of the noteworthy features of today’s international law has been the unprecedented level of “specialization”—international law consists of various specialized treaty regimes, “which establish a collaborative mechanism for states to regulate a particular area of activity.”9 Each regime deals with various of Michigan Press, 2006); James Harrison, The Human Rights Impact of the World Trade Organization (Hart Publishing, 2007); Human Rights in International Investment Law and Arbitration (Pierre-Marie Dupuy, Ernst-Ulrich Petersmann & Francesco Francioni eds., Oxford University Press, 2009); The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Sarah Joseph, David Kinley & Jeff Waincymer eds., Edward Elgar, 2009); Linking Global Trade and Human Rights (Daniel Drache & Lesley A. Jacobs eds., Cambridge University Press, 2014). 8  Pursuant to Article 38(1) of the ICJ Statute, the Court shall apply, a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) subject to the provision of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 9  Oscar Schachter, International Law in Theory and Practice 74 (Martinus Nijhoff Publishers, 1991); the ILC Study Group explains the basic feature of the specialization international legal

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aspects of international affairs in the lens of distinct logic and professionallytailored vocabularies: those dealing with human rights protection on the one hand, and trade liberalization and investment facilitation on the other. These regimes also have a certain degree of institutional autonomy in carrying out mandates stipulated in its constitutive instrument. Against the foregoing observations, at first blush, only “loose relationships between the fragments of law”10 seem to exist between the international human rights regime and the global rules of trade and investment regulation. Mainstream theories of trade and investment law and policy have given the impression that the international economic regime is a deeply autonomous and closed legal system, having no substantial normative relationship with other fields of international law. In examining the structure of international economic law and policy, many scholars and practitioners have tended to focus on the liberal economic rationalities centered at the maximization of economic efficiency and utility. Cross-reference to the considerations of external legal regimes has also been infrequent in international law. Similarly, IEL treaties rarely make textual references to human rights considerations. The prospects of human rights concerns being incorporated into international economic governance have not been promising. Most international arrangements do not envision clear models of how to interact with other regimes. This picture, nevertheless, has been changing. One prominent international law scholar observes: “it surprises few people today to see comments about the profound and growing extent of international economic interdependence and linkages.”11 In a broader sense, as a general matter, a greater interaction between different branches of international law has emerged as a logical consequence of the growing interconnectedness between various aspects of our lives. The force of globalization has also connected a range of political, regimes in its Report on the fragmentation of international law under the following heading. International Law Commission, Fragmentation of International Law: Difficulties Arising From Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682 (Apr. 13, 2006) [“ILC Fragmentation Report (2006)”], para. 15: each rule-complex or “regime” comes with its own principles, its own form of expertise and its own “ethos”, not necessarily identical to the ethos of its neighboring specialization. “Trade law” and “environmental law”, for example, have highly specific objectives and rely on principles that may often point in different directions. 10  Gunther Teubner & Andreas Fischer-Lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int’l L. 999, 1017 (2004). 11  John H. Jackson, Global Economics and International Economic Law, 1 J. Int’l Econ. L. 1, 1 (1998).

The Problem

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economic, and social processes in new and powerful ways.12 In today’s globalized world, where different legal, political and social issues are densely intertwined, decisions taken within the framework of a particular regime necessarily have a cross-sectional influence—an influence which extends well into extraneous legal regimes. Viewed in this light, “linkage” is a proper term to capture the growing web of intricate relationships between multiple legal regimes in international law. In the midst of growing interaction and linkages between multiple international regimes, it is more likely to see that rules, policies and values contained in one regime conflict with those established by another regime. The issue of “regime conflict” raises various legal and policy questions for international lawyers, primarily because the current structure of the international legal system is not fully equipped to manage regime conflict effectively. Conflicts are “more frequent” and “more difficult to solve” in international law due to the decentralized system of law-making and law-applying mechanisms.13 It is not difficult to find incidents demonstrating increasingly closer linkages between various human rights regulations and international economic law and policy. As the former Director-General of the World Trade Organization (“WTO”) observed, “human rights are essential to the good functioning of the multilateral trading system, and trade and WTO rules contribute to the realization of human rights.”14 While the interaction between human rights and trade has mutually supportive aspects, not every aspect of their interaction is depicted in terms of synergies. For instance, the WTO Agreement on Trade-Related Intellectual Property Rights (“TRIPS”)15 poses obstacles to the fulfillment of the right to health in the context of public health crises, in developing and the least-developed

12  Anthony Giddens, The Consequence of Modernity 64 (Stanford University Press, 1990). 13  Wolfram Karl, Conflicts between Treaties, in Encyclopedia of public international law Vol. IV 936 (Rudolph Bernhard ed., North-Holland Publishing, 1992); see also Dinah Shelton, International Law and Relative Normativity in International Law 145 (Malcolm D. Evans ed., Oxford University Press, 2003). 14  Pascal Lamy, Towards Shared Responsibility and Greater Coherence: Human Rights, Trade and Macroeconomic Policy, Speech at the Colloquium on Human Rights and the Global Economy, Geneva, Jan. 13, 2010, available at https://www.wto.org/english/news_ e/sppl_e/sppl146_e.htm. 15  Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1869 U.N.T.S. 299 (1994) [“TRIPS Agreement or TRIPS”].

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­countries.16 The intellectual property protection afforded by the TRIPS Agreement is designed to promote a highly commercial agenda. Strong patent protection of pharmaceutical products under the TRIPS leads to increase drug prices, significantly undermining the poorer states’ ability to import life-saving medicines and produce generic drugs while dealing with serious public health crises involving HIV/AIDS, malaria, and tuberculosis, and other epidemic diseases. The higher prices associated with patented medicines may create difficulties particularly for developing and least-developed countries. The human rights implications of trade liberalization are also evident in the public service sector. The General Agreement of Trade in Services (“GATS”),17 aims at establishing a multilateral framework of service trade, with a view of progressive liberalization. The service sectors covered by the GATS include services that are critical for the enjoyment of economic, social and cultural rights (“ESC rights”), such as the right to health, education, and water.18 Under the current liberalization agenda promoted by the WTO and other related intergovernmental agencies, developing and the least-developed states are increasingly under pressure to privatize public sectors, like water and sewage services. Many countries fear that liberalization of public services may pose threats to the state authorities to maintain basic public services. If this line of liberalization policy is adopted in practice, water becomes increasingly unaffordable, particularly in the case of developing and low-income countries. The accelerated liberalization of water service directly contributes to interfering with the effective enjoyment of right to water. The adequate protection of right to water has an important implication for the protection of rights to life, health and food. For example, agriculture is a primary source of living and securing food in rural areas and small municipalities. Similarly, interaction and conflicts between the two international regimes are discussed in the context of treaty obligations, arising separately and simultaneously under international human rights and investment law. Sovereign capacities to legislate in the public interest, with a strong concern for human rights protection, are often substantially restricted by bilateral investment 16  See generally, Alan O. Sykes, TRIPS, Pharmaceuticals, Developing Countries and the Doha “Solution”, 3 Chi. J. Int’l L 47 (2002); Incentives for Global Public Health: Patent Law and Access to Essential Medicines (Thomas Pogge, Matthew Rimmer & Kim Rubenstein eds., Cambridge University Press, 2010). 17  Agreement on Trade in Services, Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 183 (1994) [“GATS”]. 18  See generally, Barnali Choudhury, Public Services and International Trade Liberalization 15–25 (Cambridge University Press, 2014).

The Problem

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treaties (“BITs”) and other international investment treaties (“IIAs”). Compared to the human rights regime, international investment law has a strong, treatybased dispute settlement to enforce substantive rules of the regime. In this situation, the state’s willingness to legislate various matters of public interest and human rights can be easily compromised. From another perspective, it is highly controversial whether investors can still seek compensation based on the IIAs, for the investments made in clear violation of basic human rights. As briefly explored, conflicts in different legal rules and policies between the two international regimes are full of complex problems, where there are more questions than answers. Regime conflict has become even harder to manage, as the number of international regimes has proliferated in the absence of a centralized governance structure. It is highly challenging to develop effective ways to properly accommodate, incorporate, or link them to each other. Against the foregoing difficulties, the so-called “linkage literature” has expanded in international legal scholarship, addressing various aspects of the interrelationship between international human rights and economic law regimes. This book seeks to provide an alternative perspective to the multifaceted linkages between international human rights and economic law regimes, in light of the complex reality of regime conflict. In particular, it identifies different ways of accommodating human rights concerns as expressed in relevant treaties, within the framework of international economic law and policy. This research examines the role human rights considerations might potentially play in international trade and foreign investment regulation, as well as the ways in which human rights may be invoked in the course of WTO dispute settlements and investment treaty arbitration. B

The Structure of the Research Project

This book has three main objectives: 1) to show how the growth of international law and institutions inevitably increases the prospects of interaction and conflicts between different sub-branches of international law, and why these incidents create serious problems in today’s international legal system; 2) to analyze the development of international human rights and economic law regimes, and to identify commonalities between these legal regimes, that may lead to introducing a vision of accommodation in dealing with regime interaction and conflict between these legal regimes; 3) to examine the role human rights considerations can play in international trade and foreign investment policy, as well as the ways in which human rights can be invoked in the course of WTO dispute settlement proceedings and investment treaty arbitration.

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With these research goals in view, the analysis of this book proceeds as follows. The present chapter sets out the introductory background for this manuscript. Chapter 2, “The Conceptual Framework: Interaction and the Conflict of Multiple International Regimes”, provides a basic conceptual framework for understanding various aspects of the research problems concerning the normative interaction and conflict between different sub-branches of international law. Chapter 2 also aims to define a couple of central terms used in the book, such as regime, regime interaction and conflict for the purpose of this book. Chapter 3, “Regime Interaction and Conflict between International Human Rights and Economic law in the Context of Historical Evolution of International Law and Institution”, carefully examines the development of international legal regimes on human rights protection on the one hand, and global trade and foreign investment on the other. These two fields of law both have their foundations derived in the collective history of the development of international law, and as a consequence, they share common normative features. By reflecting on the historical contexts behind the development of specialized legal systems in the fields of human rights protection and trade/investment regulation, chapter 3 undertakes a deeper understanding of the interaction and conflict between these international regimes. It also examines how different branches of international law have been developed in relation to each other in a broader universe of international law. Chapter 4, “The Project of Regime Accommodation: Managing Interaction and Conflict between International Human Rights and Economic Law”, considers how a vision of regime accommodation can contribute to managing interaction and conflict between different international legal regimes in a more effective way. Chapter 4 first outlines conventional conflict resolution techniques available for international lawyers, as they deal with problems involving conflicts between rules from different sub-fields of international law. This chapter then explores how regime interaction and conflicts have been managed in the context of the research problem. For one, the relevant section begins by identifying the early discussion of the linkage between nonIEL issues and international economic law and policy; even in the nineteenth and early twentieth centuries, when the development of international law was still in a fairly early stage, policy objectives in promoting interstate trade and investment were occasionally restrained in light of non-IEL considerations. For another, the chapter equally examines how regime interaction and conflict between international human rights and economic law regimes have been addressed in legislative, administrative and adjudicatory settings. Chapter 4 attaches greater analytic importance to examining the interpretative value

The Problem

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and usage of external human rights norms in disputes brought before the WTO Dispute Settlement Bodies and arbitral tribunals. Wrapping up previous discussions on managing interaction and conflict between different sub-branches of international law, chapter 5, “Guidelines for Decision-makers: Human Rights in International Economic Law and Policy” makes a set of legislative, administrative, and adjudicatory suggestions, to accommodate human rights concerns in international economic law and policy. It looks at how different strategies can work together to achieve a better resolution of the research problems.

CHAPTER 2

The Conceptual Framework: Interaction and the Conflict of Multiple International Regimes At the outset, it will be useful to get clear about some of the major terms used throughout this research. Terms such as “regime” as well as “interaction” and “conflict” of international regimes must be conceptualized in order to adequately respond to legal problems around regime interaction and conflict. A

Meaning of International “Regime”

This sub-section seeks to clarify the concept of international regime, since a precise definition of the term is a precondition for understanding the dynamics of regime interaction and conflict. International regime is a concept capturing complex nature of the normative arrangements regulating particular issue-areas. The term finds its roots in the Latin word, “regimen” meaning rule, guidance, government, or command. The Oxford English Dictionary plainly defines a regime as “a manner, method or system of rule or government; a system or institution having widespread influence or prevalence”.19 Scholars and practitioners from a variety of disciplinary backgrounds have attempted to clarify the usage of this term. Despite widespread reference to the concept of regime in international relations and legal scholarship, no consensus exists as to its exact definition. While it may be counterproductive to dwell excessively on the definition, studies on the meaning of “regime” contribute to understanding how international regime is created and developed.20 1 Regime in International Relations Scholarship It is generally agreed that the initial scholarly examination on the concept of international regime begins with John G. Ruggie’s seminal article of 1975.21 19  The Oxford English Dictionary Vol. XIII 508 (prepared by John Andrew Simpson & Edmund S.C. Weiner) (Clarendon Press, 2nd ed., 1989). 20   Arthur A. Stein, Coordination and Collaboration: Regimes in an Anarchic World in International Regimes 115 (Stephen D. Krasner ed., Cornell University Press, 1983). 21  John G. Ruggie, International Responsibility to Technology: Concepts and Trends, 29 Int’l Org 557 (1975).

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The Conceptual Framework

11

The creation and development of international regimes have been “a major focus of empirical research and theoretical debate” in studies of international relations since the early 1980s.22 The meaning of the term, “regime” was primarily examined in the context of understanding why and how nations behave and cooperate in international politics. In an article written during the early development of Regime Theory, Hass explains that international regimes are defined as “norms, procedures, and rules agreed to in order to regulate an issue-area.”23 Here, no critical attention is paid to the subjective components of participating actors’ expectations and understandings of the work of international regimes. Puchala and Hopkins argue that international regimes exist primarily in the form of “participants’ understandings, expectations or convictions about legitimate, appropriate or moral behavior.”24 Relying heavily on the subjective component, they opt for a broad definition of regime. In their perspective, “a regime exists in every substantial issue-area in international relations” and “wherever there is regularity in behavior, some kinds of principles, norms or rules must exist to account for it”.25 As compared to Puchala and Hopkins, Krasner puts more emphasis on the normative component in these principles, norms or rules; not all regularized patterns of state behaviors can be deduced to the existence of a regime. Krasner famously defines the term, regime as [. . .] sets of implicit or explicit principles, norms, rules, and decisionmaking procedures around which actor expectations converge in a given area of international relations.26

22  Stephan Haggard & Beth A. Simmons, Theories of International Regimes, 41 Int’l Org 491, 491 (1987). 23  Ernst B. Hass, Why Collaborate? Issue-Linkage and International Regimes, 32 World Politics 357, 397 (1980). 24  Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis in International Regimes 62 (Stephen D. Krasner ed., Cornell University Press, 1983). 25  Ibid., at 61. 26  Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables in International Regimes 2 (Stephen D. Krasner ed., Cornell University Press, 1983). This definition asserted by Krasner gained a wide scholarly recognition during the Conference held for the preparation of the special edition of the International Organization dedicated to the study on the international regime.

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Here, Krasner is of view that not only binding treaties and formal rules, but also softer forms of arrangement are within the ambit of international regime. He elaborates, Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice.27 (emphasis added) His definition of regime makes no clear indication of the source of legal authority such as treaty or judicial decision. Instead, he intends to widen the definition of regime by taking note of “beliefs”, “standards”, “prescriptions”, and “prevailing practices”. In clarifying the term, Krasner concurrently examines the actors’ expectations about and understandings of the various aspects of international relations. The role of actors participating in the creation and development of international regime should not be underestimated. It is not feasible to alienate the expectations and understanding of participating actors from the operation of any international regime. The notion of international regime has a broader connotation than a mere aggregation of rules and principle would suggest. Kratochwil and Ruggie conceive international regime as “principled and shared understandings of desirable and acceptable forms of social behaviour.”28 Interestingly, Hasenclever, Mayer, and Rittberger interestingly identify two dimensions of international regimes: first, international regimes have a regulative aspect, as they are “imperatives requiring states to behave in accordance with certain principles, norms, and rules”. Second, international regimes have a constitutive dimension in the sense that they promote creation of “a common social world by fixing the meaning of behavior”; in this way, international regimes embody “shared social knowledge”.29 Wolf and Zürn attempt to include the element of “effectiveness” to the definition of international regime. From their perspective, if the relevant norms are disregarded by states at their discretion, such norms may not be considered as constituting an international regime. Observable behaviors of participating 27   Ibid. 28  Friedrich Kratochwil & John Gerard Ruggie, International Organization: A State of the Art on an Art of the State, 40 Int’l Org 764 (1986). 29  Andreas Hasenclever, Peter Mayer & Volker Rittberger, Theories of International Regimes 163 (Cambridge University Press, 1997).

The Conceptual Framework

13

states have a defining impact on the concept of international regime. In their view, the mere aggregation of explicit rules does not guarantee the existence of a regime. To qualify as an international regime, participating actors’ behavior must be—to some extent—consistent with the requirements of the existing rules. While scholars have different opinions as to what exactly rule-abiding behavior means in this context, they basically seek to ascertain a certain level of effectiveness of these rules in order to qualify them as constituting a regime. If we take this assertion regarding a regime’s “effectiveness” too far, it must be noted that the outcome would be undesirable. In this case, the elements constituting regime are confused with the factors used to measure the degree of normative impact of the regime. To a certain extent, in order to determine whether an international regime exists in a specific issue area, rules contained in the regime need to be abided by the intended groups of participants. However, even when the regime fails to be in “full” effect as originally intended, this fact alone cannot dismiss the existence of a regime; the fact that rules are not fully effective does not automatically indicate no regime exists. On this point, Rittberger generally agrees that international arrangements need to have a certain level of effectiveness to be qualified as international regimes.30 He argues that explicit rules do not guarantee the existence of an international regime as these rules must be truly operative in order to be considered as regime: “paper regime” is not a regime. Nonetheless, his standard is less strict than the one asserted by Wolf and Zürn. In 1991, the “Regime Summit” was held at Dartmouth College.31 In the report summarizing various opinions regarding the concept of international regime and related critiques during the Conference, a large number of IR scholars adopted the so-called “explicit rules test” for their assessments of the meaning of regime. It states as follows: We agreed to begin with a universe of cases including all arrangements that meet the explicit rules test. This would be followed by an effort to identify that subset of the initial universe meeting the explicit rules test and also achieving prescriptive status in the sense that actors refer regularly to the rules both in characterizing their own behavior and in commenting on the behavior of others. Beyond this, analysts should seek to

30  Volker Rittberger, Editor’s Introduction in International Regimes in East-West Politics 3 (Volker Rittberger ed., Pinter Publishers, 1990). 31  Oran R. Young, Report on the “Regime Summit” held at Dartmouth College in Nov. 1991, Institute of Arctic Studies (1991).

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pinpoint a smaller subset of arrangements that meet the first two tests and that give rise to a measure of rule-consistent behavior as well.32 While the Report takes the “effectiveness” category into account, this inclusion does not mean that rules under examination must be honored at all times to be qualified as an international regime.33 2 Regime in International Legal Scholarship and Jurisprudence With respect to studies on the creation and development of regime, international legal scholarship has been benefitted by the Regime Theory in the IR discipline.34 International law scholars often draw on Regime Theory to explain why and how regimes are structured and develop as they do; regime is indeed “an interdisciplinary concept, which carries both political and legal features.”35 Krasner’s definition of regime in particular, has been widely regarded as a starting point for discussions of the matter in international legal scholarship.36 At the same time, international law scholars have established their own line of theories in this regard. International courts and tribunals as well as the International Law Commission (“ILC”) have also analyzed the concept of international regime in different contexts. In international legal scholarship, one of the earliest theoretical examinations of regime is found in the 1930s. Cassese points to the Scelle’s theory of “Role Splitting (dédoublement Fonctionnel)” in international law.37 As 32  Volker Rittberger & Peter Mayer (eds.), Regime Theory and International Relations 10–11 (Clarendon Press, 1993). 33  Again, this standard requires more relaxed conditions than those recognized by Wolf and Zurn. 34  For further examination on the relationship between IR regime theory and the international legal scholarship, see Andrew Hurrell, International Society and the Study of Regimes: A Reflective Approach, in Regime Theory and International Relations 54–57 (Volker Rittberger ed., Clarendon Press, 1993); Anne-Marie Slaughter, Andrew S. Tulumello & Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 Am. J. Int’l L. 367 (1995); Steven Ratner, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 Am. J. Int’l L. 361, 361–363 (1999). 35   Math Noortmann, Enforcing International Law: From Self-Help to Self-Contained Regimes 134 (Ashgate, 2005). 36  Margaret A. Young, Introduction: The Productive Friction between Regimes in Regime Interaction in International Law Facing Fragmentation 7 (Margaret A. Young ed., Cambridge University Press, 2012). 37  Antonio Cassese, Remarks on Scelle’s Theory of “Role Splitting” in International Law, 2 Eur. J. Int’l L. 210, 211 (1990).

The Conceptual Framework

15

a general matter, however, neither legal academia nor practitioners showed much interest in finding a proper definition of the term. In 1938, the meaning of regime was briefly discussed in the case of Trailer Smelter Arbitration, an arbitral dispute between Canada and the United States. Here, the arbitrators had to consider whether a system of rules and procedures for regulating the discharge of noxious fumes by the offending smelter constituted a regime.38 Beginning in the mid 1980s, the concept of regime began to be presented as a recurring theme in the international legal literature. The term was invoked to explain a specific international regulatory system developed along with the functional specialization: international regimes for the international human rights protection,39 international protection of environment,40 and the WTO trading system.41 In his 1986 article, Donnelly defines regime as “norms and decision-making procedures accepted by international actors to regulate an issue area.”42 He refers to the work of renowned regime theorists such as Krasner and Hass explored above. Donnelly then points out that a set of emerging human rights arrangements has emerged to constitute an international regime, satisfying the definition of regime he sets out.43 In the area of international environmental law, Gehring explains the meaning of regime in the following terms: [. . .] international environmental regimes go far beyond treaty law as such. For a defined issue-area, they are international institutions comprising both an accepted body of normative prescriptions and an organized process for the making and application of these prescriptions. Given the successful integration of these two international regimes turn out to be comparatively autonomous sectoral legal regimes.44

38  Trail Smelter Arbitration (United States v. Canada) 3 R.I.A.A. 1905 (1938), reprinted in 33 Am. J. Int’l L. 185, 185–212 (1939). 39  Jack Donnelly, International Human Rights: A Regime Analysis, 40 Int’l Org. 599 (1986). 40  Patricia Birnie & Alan Boyle, International Law and the Environment 180 (Oxford University Press, 2002). 41  Anja Lindross & Michael Mehling, Dispelling the Chimera of ‘Self-Contained Regimes’ International Law and the WTO, 16 Eur. J. Int’l L. 857 (2005). 42  Donnelly (1986), at 602. 43  Ibid., at 605. 44  Thomas Gehring, International Environmental Regimes: Dynamic Sectoral Legal Systems, 1 Y.B. Int’l Env. L. 35, 56 (1990).

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More recently, Birnie and Boyle note that the international environmental regime is properly called as a regime because it has emerged from the “institutions of multilateral governance” and is built principally on “treaties, protocols and soft law to provide a regulatory system capable of dynamic evolution.” This pattern of regulatory structure established in the area of environment protection constitutes an international regime; it has a clear normative function and also provides a mechanism for the third-party dispute settlement.45 With respect to trade area, Schachter argues that the decades of negotiation process for concluding the 1994 WTO Agreement shows how a multilateral law-making treaty develops into an international regime.46 Interestingly, rules currently administered under the auspices of the WTO was not originally perceived as constituting a special regime. From his perspective, the collaborative treaty mechanism of the General Agreement on Tariffs and Trade 199447 ultimately gave this regime an institutional character, and facilitated its regulatory significance in the field of international trade.48 Some scholars provide a stricter notion of regime in contrast with the prevailing conception established in the IR Regime Theory. Kline sets out certain criteria for determining the existence of an international regime: (i) a treaty between States, or States and international organizations, regulating the status of an area such as the high seas or outer space, (ii) a general interest underlying the regulation, and (iii) the regime which endows the area with the general status erga omnes.49 It is worth noting that the term, international regime is often qualified with the additional adjectives such as “self-contained”. The term “self-contained regime” has enjoyed multiple uses in both international legal scholarship and practice alike. The initial invocation of self-contained regime was made by the Permanent Court of International Justice (“PCIJ”) in the case of the S.S. Wimbledon (1923).50 Claimant countries brought a suit against Germany 45  Birnie & Boyle (2002), at 180. 46  GATT 1947 was regarded as an international institution governing international trade relations and originally intended to be a provisional agreement until the establishment of the International Trade Organization (“ITO”). 47  General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187 [“GATT 1994”]. 48   Oscar Schachter, International Law in Theory and Practice 76 (Martinus Nijhoff Publishers, 1991). 49  Eckhart Klein, International Regimes in Encyclopedia of Public International Law Vol. II 1354–1359 (Rudolf Bernhardt ed., North-Holland Publishing, 1995). 50  Case of the S.S. Wimbledon (France, Italy, Japan and United Kingdom v. Germany), 1923 P.C.I.J. Series A, No. 1 (Aug. 17)[“S.S. Wimbledon (1923)”].

The Conceptual Framework

17

due to its refusal to allow steamship passage through the Kiel Canal; referring to the terms of Treaty of Versailles, they claimed a right to free access to the Canal. There was a divergence between the concurrent rights and obligations of Germany in relation to the particular status of the Kiel Canal. The PCIJ, here, compared Article 380 to other provisions in the Treaty that are generally applicable to inland waterways and found a clear disparity between the contents and applicable scope of these provisions. It noted that a special section of the Treaty, Article 380 in particular, is devoted to regulating this waterway. According to Article 380, the Kiel Canal and approaches to the Canal shall remain “free and open to vessels of commerce or war of all nations at peace with Germany on terms of entire equality.” From the Court’s perspective, since the more specific regulation concerning the Kiel Canal exists, the relevant provision concerning the Kiel Canal contained in the Treaty of Versailles should be classified as self-contained.51 On this point, Martti Koskenniemi asserts that the use of the term self-contained here seems merely to imply that whenever there is a conventional rule on a problem, that rule should have priority in application over any other external source.52 After several decades, the International Court of Justice (“ICJ”) made an explicit reference to “self-contained regime” in Tehran Hostages Case (1980).53 The Court examined the features of self-contained regime in a different legal context, namely the rules of diplomatic law and state responsibility. This suit was brought by the U.S. against Iran regarding Iran’s seizure and holding of U.S. Consular staff members and other U.S. nationals as hostages. Legal questions arose before the ICJ as to whether Iran violated Article 9 of the Vienna Convention on Diplomatic Relations (1963) (“VCDR”). The Court also had to look at the legal consequences of VCDR with its relations to other— allegedly—applicable rules of international law. It was held that the rule regarding the notification of persona non grata (or the “unaccepted person” as expressed in Article 9 of the VCDR)54 51  S.S. Wimbledon (1923), paras. 23–24. 52  I LC Fragmentation Report (2006), para. 127. 53  Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, p. 3 (May 24) [“Tehran Hostages (1980)”]. 54  VCDR Article 9: “1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his function with the mission. A person may

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constitutes a self-contained regime, consequently excluding the general international law on state responsibility as well as the possibility of countermeasures.55 The Court noted: [. . .] The rules of diplomatic law, constitute a self-contained regime which, on the one hand, lays down the receiving state’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. These means are, by their nature, entirely efficacious.56 (emphasis added) Here, the norms of diplomatic law are thought to constitute a self-contained regime. These rules contained in diplomatic treaties are designed as an express deviation from the general law of state responsibility. On the one hand, this special regime imposes certain obligations on the state toward persons in charge with the diplomatic mission; on the other hand, it gives legal remedies in case of breaches of these obligations. It establishes its own system for dealing with breaches of primary norms: a special set of secondary rules that also claims priority over the secondary rules provided by general law. The ICJ made reference to self-contained regime in the sense that certain treaties provide secondary (special) rules concerning breach of their primary rules and reaction to such breaches, which derogate in this case, general rules of state responsibility. Nevertheless, the Court’s decision does not fully answer the question of what exactly constitutes a self-contained regime. While preparing the “Draft Articles on State Responsibility of States for Internationally Wrongful Acts”, the meaning of self-contained regime had also been a key issue for the ILC. The ILC Special Rapporteur Riphagen made a significant contribution to the ongoing discussion regarding self-contained regimes. In his third report submitted to the Commission, he describes a selfcontained regime as, A particular category of subsystems, namely those that embrace a full, exhaustive and definitive, set of secondary rules. Thus, the principal characteristic of a self-contained regime is its intention to totally exclude be declared non grata or not acceptable before arriving in the territory of the receiving State.” 55  Tehran Hostages (1980), para. 85. 56  Ibid., para. 86.

The Conceptual Framework

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the application of the general legal consequences of wrongful acts as codified by the ILC, in particular the application of countermeasures by an injured State.57 (emphasis added). Riphagen then points to the existence of self-contained regimes in the field of state responsibility. To elaborate, international law is a combination of subsystems in which primary rules and secondary rules are “closely intertwined”. Along these lines, he states: International law as it stands today is not modeled on one system only, but on a variety of interrelated subsystems, within each of which the so-called “primary rules” and the so-called “secondary rules” are closely intertwined—indeed, inseparable.58 States elaborate primary rules that generate binding legal obligations. They also provide the secondary norms, including some special rules on the contents and applicable scope of the state responsibility. According to his observation, these interrelated systems of primary and secondary rules are referred to as “subsystems”. He goes on to say that the subsystems are not be completely isolated from general international law. Similarly, the existence of a subsystem does not “permanently exclude the application of any general rules of customary international law relating to the legal consequences of wrongful acts.”59 He adds that in cases when the subsystem itself fails, “a fall-back on another subsystem may be unavoidable.”60 In his later report, Special Rapporteur Arangio-Ruiz (Riphagen’s successor) places greater emphasis on the question of whether remedial measures in self-contained regimes would exclude all recourse to remedies available under international law. On this matter, he observes, “none of the supposedly selfcontained regimes seem to materialize in concreto.”61 Subsequently, in 2000, Special Rapporteur Crawford continued examination of the issue of selfcontained regimes in connection with the Draft Articles 37–39 concerning 57  Willem Riphagen, Third Report of the Special Rapporteur on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles) in ILC, Y.B. Int’l L. Comm’n Vol. II (1982), p. 24, para. 16. 58  Ibid., at p. 22, para. 35. 59  Ibid., at p. 30, para. 54. 60  Ibid. (some of his arguments failed to be fully integrated into final articles of the ILC Draft.) 61  ILC, Y.B. Int’l L. Comm’n Vol. II (1992), p. 40, para. 112.

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the relationship between the Articles on State responsibility and other norms of adjudication. Based on the foregoing studies conducted by prominent international lawyers, the ILC finally adopted the Article on State Responsibility.62 In particular, the lex specialis exception in Article 55 of the ILC Articles on State Responsibility states: Article 55 (lex specialis): These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a state are governed by special rules of international law.63 The general rules on State responsibility (i.e. primary rules) established in the ILC Articles do not apply where the special rules of international law (i.e. secondary rules) govern the conditions for the existence of an international wrongful act or the content of international responsibility of a state. Pursuant to Article 55, a self-contained regime is the set of substantive rules accompanied by corresponding secondary rules concerning breaches and reactions to breaches. Many international legal scholars have examined the meaning and implications of self-contained regimes. The former ICJ Judge Simma aptly explains in his seminal article in 1985: ‘Self-contained’ regimes are those categories of special systems or subsystems of international law which are intended to exclude more or less totally the application of general rules of international law.64 Not every sub-system in international law is a self-contained regime. Rather, only the sub-systems that embrace “a full (exhaustive and definite) sets of secondary rules” are regarded as self-contained regimes.65 In particular, he points specifically to diplomatic law, the law of the European Community, and 62  ILC, Report on the Work of its 53rd Session, Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10), 29–365 [“ILC Report concerning the Articles on State Responsibility (2001)”]; Articles and the Commentary are also published in James Crawford, The International Law Commission’s Articles on State Responsibility, Introduction, Text and Commentaries 61 (Cambridge University Press, 2002). 63  ILC Report concerning the Articles on State Responsibility (2001), at 58. 64  Bruno Simma, Self-Contained Regimes, 16 Neth. Y.B. Int’l L. 111, 117 (1985). 65  Ibid., at 117.

The Conceptual Framework

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human rights treaties as primary examples of international regimes that have self-contained nature. Nevertheless, this does not imply that the completely closed regimes of secondary rules exist against the general international law.66 Although the ICJ in the Tehran Hostage case recognized diplomatic law as a special regime, he argues, serious violations of diplomatic rights may justify the application of countermeasures in view of the violation of general obligations in other fields of international law.67 With respect to other sub-fields of international law, Koskenniemi sees the Montreal Protocol as a multilateral environmental treaty constituting a selfcontained regime.68 Kuyper finds the key features of self-contained regimes in the law established under the auspices of the WTO.69 In identifying the selfcontainedness of the respective sub-branches of international law, both scholars point to the distinct nature of norms, implementation structure and dispute settlement mechanism provided under these regimes. In the field of international criminal law and practice, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) referred to the concept of self-contained regime in its decision for the Tadić Case, the first case ever tried by the ICTY.70 The ICTY Appeals Chamber in this case held: International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system.71 (emphasis added). Here, the Appeals Chamber clearly presented itself as constituting a selfcontained regime. In its view, the ICTY is equipped with its own process of judicial decisionmaking. 66  Simma (1985), at 135. 67  Ibid., at 120. 68  Koskenniemi points to the quasi-judicial system of Non-Compliance Procedure (“NCP”) under the Montreal Protocol. Martti Koskenniemi, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, 3 Y.B. Int’l Env. L. 123 (1992). 69  Pieter Jan Kuyper, The Law of GATT as a Special Field of International Law: Ignorance, further refinement or self-contained system of international law, 25 Neth. Y.B. Int’l L. 227 (1994). 70  ICTY Appeals Chamber, Prosecutor v. Dusko Tadić, Judgment, Case No. IT-94-1-A (Jul. 15, 1999). 71  Ibid., at 9.

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The ILC had a further opportunity to deal with the meaning of selfcontained regimes in its subsequent projects. With a keen interest in the phenomenon of fragmentation of international law, the Commission convened a study group to deal with the various issues arising from the diversification and expansion of international law.72 This Study Group on the Fragmentation of International law conducted comprehensive research designed to provide “practical guidelines to help thinking about and dealing with the issue of fragmentation in legal practice” and submitted the consolidated report as a result.73 The ILC Study Group completed its work in 2006. The ILC Study Group’s final report notes that not only formal rules, but also a range of decision-making processes for identifying and administering these rules, constitute the international regime. According to the analysis of this report, due to “whole fields of functional specialization”,74 the international regime “comes with its own principles, its own form of expertise and its own “ethos”, not necessarily identical to the ethos of neighboring specialization.”75 An international regime has particular modes for interpreting and administering rules contained in its functionally specialized body of law that can modify or exclude general international law. The concept of self-contained regime was once again one of the major points of discussion at the ILC. The ILC Study Group presents three categories of selfcontained regimes: Sometimes violation of a particular group of (primary) rules is accompanied by a special set of (secondary) rules concerning breach and reactions to breach. This is the main case provided for under article 55 of the articles on Responsibility of States for internationally wrongful acts. Sometimes, however, a special regime is formed by a set of special rules, including rights and obligations, relating to a special subject matter. Such rules may concern a geographical area (e.g. a treaty on the protection of a particular river) or some substantive matter (e.g. a treaty 72  ILC Study Group, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission finalized by Martti Koskenneimi (A/CN.4/L.682 and Corr.1)(Apr. 13, 2006) [“ILC Fragmentation Report (2006)”]. 73  ILC Study Group, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of Internal law, Conclusions of the Work of the Study Group (A/CN.4/L.702)(Jul. 18, 2006) [“ILC Fragmentation Conclusions (2006)]”. 74  ILC Fragmentation Report (2006), para. 129. 75  ILC Fragmentation Conclusions (2006), para. 15.

The Conceptual Framework

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on the regulation of the uses of a particular weapon). Such a special regime may emerge on the basis of a single treaty, several treaties, or treaty and treaties plus non-treaty developments (subsequent practice or customary law). Finally, sometimes all the rules and principles that regulate a certain problem area are collected together so as to express a “special regime”. Expressions such as “law of the sea”, “humanitarian law”, “human rights law”, “environmental law” and “trade law”, etc. give expression to some such regimes. For interpretative purposes, such regimes may often be considered in their entirety.76 The first category considers the self-contained regime as a sub-category of lex specialis within the law of state responsibility. Drawing attention to the analysis of the ICJ in the Tehran Hostages Case, the ILC Report observes that the narrow understanding of the term under this category presents the most commonly used definition. In this view, a self-contained regime is found wherever a violation of certain primary rules of international law is accompanied by a special set of secondary rules concerning this breach. In the second category, the ILC takes a broader notion of self-contained regime, interpreting the term as a system of rules covering a specific geographical area or subject matter.77 (e.g., rules protecting a particular river or regarding the use of specific weapons.) Along these lines, the ILC Conclusion looks at the S.S. Wimbledon Case rendered by the PCIJ.78 The two foregoing notions concerning the meaning of self-contained regime originate from decisions rendered by the international courts. The third category is more of an academic creation. The ILC Study Group here offers the broadest understanding of the term as compared to previous categories. International regime, a body of “functional specialization or teleological orientation” is used to refer to entire specialized branches of international law.79 The ILC Report also notes that a complete set of secondary rules would allow self-contained regimes to be functionally independent from general international law. This independent existence, however, does not imply a complete contracting out of the system of international law, as no regime is entirely 76  ILC Fragmentation Conclusions (2006), para. 12. 77  ILC Fragmentation Conclusions (2006), para. 12. 78  In the case of S.S. Wimbledon, the PCIJ held that provisions governing the Kiel Canal as self-contained. Here, the Court recognized that special rule may diverge from general international law. 79  ILC Fragmentation Report (2006), para. 136.

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self-contained.80 Rules of general international law come into play when the special regime lacks appropriate rules applicable to the situation or when the proper operation of the special regime is not possible. More recently, Helfer conceptualizes the self-contained regime by disaggregating various aspects of the self-containedness into different dimensions, dividing it into its substantive, institutional, and relational aspects.81 In so doing, he aims to provide a comprehensive definition while taking into account the diverse dimensions of regime creation and subsequent developments. Similarly, many commentators note that a regime is a combination of sets of rules, institutions and the decision-making processes that govern specialized issue areas.82 Crawford and Nevill define regime as an “institutionalized system of dealing with a particular field of behavior, often associated with the governance of territory.”83 Alternatively, in a collaborative academic work on regime interaction in international law, a group of international law scholars define the international regime from a more “hybrid” perspective: international regime constitutes the “sets of norms, decision-making procedures and organizations coalescing around functional issue-areas and dominated by particular modes of behavior, assumptions and biases.”84 3 Summary Today, an increasing number of scholars and practitioners consider international law as having broader implications than a mere set of formal treaty rules and institutions implementing these rules.85 A narrow notion of the international regime is outdated and thus needs to be rejected: formal treaties alone cannot provide a sufficient basis for understanding the complex webs of multiple regulatory structures embedded in international law. This book employs a broader conception of international regime, that international regimes are best conceived as composed of complex and interlinked patterns of rules, institutions, and decision-making processes constitute international regime. The creation and the development of international regime show the 80  Ibid., para. 100. 81  Lawrence Helfer, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 Yale J. Int’l L. 1, 11 (2004). 82  David W. Leebron, Linkages, 96 Am. J. Int’l L. 5, 10 (2002); Ratner (1999), at 2–3. 83  James Crawford & Penelope Nevill, Relations between International Courts and Tribunals: The ‘Regime Problem’ in Young ed. (2012), 259. 84  Young ed. (2012), at 9. 85  See generally, Rosalyn Higgins, Problems and Process: International Law and How We Use it 1–16 (Oxford University Press, 1995).

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process of how normative consensus is built in a specific issue-area in inter­ national politics. First, an international regime contains formal rules that are identified in an observable form. As one commentator notes, the accumulated body of these legal rules is the “uncontroversial starting point” in defining an international law regime.86 Rules prescribed in the treaties regulate specific subject areas in order to achieve specific regulatory objectives reflected in the shared beliefs and interests of various stakeholders of international law. Legal rules determine the range of acceptable behavior for the regime’s actors, prescribing their respective rights and obligations. While the treaty is one of the most prevalent forms of regime creation, recent scholarship and practice include the soft law as constituting part of a regime. Second, institutions are an integral element of an international regime. Institutions are vehicles for international actors in resolving policy problems in accordance with the terms of the regime. Each international regime must establish its own institutions for managing enforcement and ensuring compliance. Institutions are also responsible for determining the exact meaning of rules and principles contained in the regime. Lastly, the notion of international regime embraces various decisionmaking processes. It is equally important to consider how rules are communicated in international regimes and how different actors working through the institution can shape continuing communication among them. These actors use specialized knowledge and legal techniques in promotion of further clarification and development of regime.87 B

Regime Interaction and Conflict in International Law

Regime interaction refers to situations in which rules and institutions of one regime and the consequences of its operation are significantly affected by 86  Prosper Weil, Towards Relative Normativity in International Law?, 77 Am. J. Int’l L. 413, 413 (1983). 87  On the participating actors, Kratochiwil notes: “actors are not only programmed by rules and norms, but they reproduce and change by their practice the normative structures by which they are able to act, share meanings, communicate intentions, criticize claims and justify choices. Thus, one of the most important sources of change, neglected in the present regime literature, is the practice of actors themselves and its concomitant process of interstitial law-making in the international arena. Friedrich V. Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs 61 (Cambridge University Press, 1989).

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another regime and vice versa.88 As the cross-sectional influence between different legal regimes increases, interactions, overlaps and conflicts between them also grow. Regime interaction can unfold at different stages of the decision-making processes: in the context of diplomatic discussion, treaty negotiation or judicial interpretation. It typically occurs in cases where two or more norms contained in different international regimes are potentially applicable to a situation; when a court in one legal regime needs to interpret a norm in a different regime; or when different international courts adopt varying approaches to the meaning of particular legal concept simultaneously referred by multiple international regimes. Recent academic literature has paid greater attention to one of aspects of regime interaction, the problem with the conflicting international rules and institutions. Regime conflict was once less frequent, because up until the early twentieth century, international law contained only a small number of legally binding arrangements.89 The importance of resolving tensions and contradictions among multiple rules, however, is not an entirely new concept, even for an earlier generation of international jurists. In his seminal article of 1953, Wilfred Jenks aptly observes that “the conflict of law making treaties [. . .] must be accepted as being in certain circumstances an inevitable incident of growth” of international law.90 He urges international lawyers “to formulate principles for resolving such conflict when it arises.”91 The normative conflict between multiple legal fields has become more common and is getting more complicated, as the international arrangements and disputes arising from them have simultaneously proliferated during the past few decades. Managing regime interaction and conflict is essential for facilitating coherent development of international law in the complex reality of today’s international legal system marked by fragmentation of international law and institutions.

88  This line of definition is generally accepted by contributors to the edited volume on regime interaction in international law. Young ed. (2012). 89  Simma and Pulkowski observe that “early 20th century accounts conceived of the international system as a hierarchical pyramid structure comprising relatively few norms, in which states, perceived as opaque and unitary actors (‘billiard ball’), interacted in a largely unconstrained manner.” Bruno Simma & Dirk Pulkowski, Of Planets and the Universe: Selfcontained Regimes in International Law, 17 Eur. J. Int’l L. 483, 484 (2006). 90  C. Wilfred Jenks, The Conflict of Law-Making Treaties, 30 Brit. Y.B. Int’l L. 401, 405 (1953). 91  Ibid., at 405.

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1 Primary Reasons for the Growing Regime Conflict 1.1 Fragmentation of International Law Jenks’ visionary remarks on how the growth of international law inevitably increases the likelihood of conflict between different sub-branches have proved prescient. Increasing concerns regarding the impact of regime conflict are not based on a merely hypothetical assumption: conflicts of rules, institutions and decision-making processes contained in different sub-branches of law pose a critical problem in public international law. The increasing likelihood of conflict between different international regimes is strongly associated with the fragmentation of international law. The “fragmentation of international law” is a useful legal terminology for describing one of the critical features in the development of contemporary international law; it depicts a phenomenon resulting from decentralization of authorities and governance in the area of international law. In view of the fragmentation of international law, the current international legal system has disintegrated into “functionally defined issue-areas”92 or has developed into “specialized and (relatively) autonomous rules or rule-complexes”.93 International regimes have been created against the backdrop of multiple legal arrangements in the forms of multilateral, regional, bilateral, or combinations thereof. The uncoordinated proliferation and expansion of specialized treaty regimes have prompted both fear and interest with respect to fragmentation of international law.94 According to some scholars, fragmentation of international 92  Joost Pauwelyn, Fragmentation of International Law in Max Planck Encyclopedia of Public International Law, para. 2 (Rüdiger Wolfrum ed., Oxford University Press, 2006). 93  I LC Fragmentation Report (2006), para. 8. 94  For some of the early scholarly works on fragmentation and its impacts on international law, see Jonathan I. Charney, Is International Law Threatened by Multiple International Law Tribunals?, 271 Recueil Des Cours 101 (1998); Jonathan I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 N.Y.U. J. Int’l L. & Pol. 697 (1999); Karin Oellers-Frahm, Multiplication of International Courts and Tribunals and Conflicting Jurisdiction: Problems and Possible Solutions, 5 Max Planck Y.B. United Nations L. 67 (2001); Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. J. Int’l L. & Pol. 709 (1999); Georges AbiSaab, Fragmentation or Unification: Some Concluding Remarks, 31 N.Y.U. J. Int’l L. & Pol. 919 (1999); Rosalyn Higgins, The ICJ, the ECJ, and the Integrity of International Law, 52 Int’l & Comp. L.Q. 1 (2003); Gerhard Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Int’l L. 859 (2004); Bruno Simma, Fragmentation in a Positive Light, 25 Mich. J. Int’l L. 845 (2004); ILC Fragmentation Report (2006); ErnstUlrich Petersmann, Justice as Conflict Resolution: Proliferation, Fragmentation, and Decentralization of Dispute Settlement in International Trade, 27 U. Pa. J. Int’l Econ. L. 273 (2006); Christian Leathley, An Institutional Hierarchy to Combat the Fragmentation

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law may pose a serious risk that must be resolved in the interests of coherent development of an international legal order; fragmentation of international law creates the danger of conflicting and incompatible rules, principles, and institutional practices. These commentators hold the strong assumption that international law should have a unitary system of rules and institutions.95 In their views, fragmentation is understood as normative expansion and diversification with negative connotations. Other scholars, in contrast, consider the fragmentation an inevitable result of the process of healthy development of international law. According to the ILC Study Group Report of 2006, this only reflects “the expansion of international legal activity into new fields and the attendant diversification of its objects and techniques.”96 In order to meet the demands of a pluralistic and diversified international society, the existence of multiple rules, institutions and modes of governance are inevitable. Similar concerns about the fragmentation of international law have been expressed in the circle of ICJ judges as well. The former ICJ President and Judge Stephen Schwebel pointed out the dangers inherent in the “significant conflicting interpretations of international law”97 in his address before the Plenary Session of the United Nations General Assembly in 1999. His successor, Judge Gilbert Guillaume, also speaking as a ICJ President to the United Nations General Assembly in 2001, noted that “the proliferation of international courts may jeopardize the unity of international law and, as a consequence, its role in inter-State relations.”98 In 2006, the former ICJ President, Judge Rosalyn Higgins, also spoke of various legal problems arising from the fragmentation of international law.99 This topic was included in the long-term project of the ILC entitled “Risks Ensuing from Fragmentation of International Law” in 2000. The ILC subsequently established a Study Group on fragmentation chaired by Koskenniemi that was in operation from 2002 to 2006.

of International Law: Has the ILC Missed an Opportunity?, 40 N.Y.U. J. Int’l L. & Pol. 259 (2007); Marko Milanovic, Norm Conflict in International Law: Whither Human Rights?, 20 Duke J. Comp. & Int’l L. 69 (2009). 95  See generally, Andreas Zimmermann & Rainer Hofmann (eds.), Unity and Diversity in International Law (Duncker & Humblot, 2006). 96  ILC Fragmentation Conclusions (2006), para. 9. 97  Judge Stephen M. Schwebel, Address to the Plenary Session of the General Assembly of the United Nations, Oct. 26, 1999. 98  H.E. Judge Gilbert Guillaume, Speech to the General Assembly of the United Nations, Oct. 30, 2001. 99  Judge Rosalyn Higgins, Address to the Plenary Session of the American Society of International Law Annual Meeting, Mar. 31, 2006.

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1.2 Difficulties of Conflict Management in International Law Since the tensions and contradictions among multiple rules and institutions are commonplace in any legal system, every legal system ex ante establishes tools to maintain internal coherence by employing various conflict resolution techniques. However, international law lacks the key strategies of conflict resolution typically used in a functioning domestic legal system. International law does not have the same tools available to domestic law to avoid and resolve conflicts between varying rules. In this situation, although conflicts between norms are not confined to international law, conflicts are “more frequent” and “more difficult to solve” due to “the decentralized law-making structure and in the absence of common norm-setting agencies which are characteristic of the international legal order.”100 First, in a domestic legal system, internal coherence among competing legal rules is established as well as maintained under the centralized judicial structure. The highest court has final say regarding conflicts among different rules and authorities. When necessary, it can dismiss a lower court’s misinterpretation of the conflicting dimension contained in the case. However, no international judicial institution can effectively safeguard the unity of the international law in the same way a domestic system does; no centralized judiciary exists to minimize inconsistency and resolve conflict situations arising out of the different bodies of law.101 Moreover, interpreters of one regime tend to consider their interpretation of rules more legitimate that of the neighboring legal system, often emphasizing the unique features of their regime in order to distinguish them from competing arrangements. Secondly, conflicts between different areas of law can be prevented in a domestic legal system where a centralized legislature carries a presumably single-minded legislative intention. When legislating, the legislative body can assess potential the impact of certain rules on other policy priorities and simultaneously reflect its assessment of actual law-making practices. If actual conflict arises, domestic law application agencies can resolve it by resorting to a pre-defined hierarchy in the legal system. Statutes for instance, should read in such a way as to be compatible with the Constitution, which is hierarchically superior to the statutes. Conflicts potentially arising from multiple 100  Karl (1992), at 936; see also Shelton (2003), at 145. 101  Interestingly, Johnstone observes that the nature of this problem is not merely institutional. He further notes “because an international tribunal cannot fully reflect the value diversities of all States subject to it, it can never receive the degree of acceptance and confidence bestowed on domestic courts.” Ian Johnstone, Treaty Interpretation: The Authority of Interpretative Communities, 12 Mich. J. Int’l L. 371, 375 (1991).

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rules and authorities can easily be resolved, as in the case of domestic settings; conflicts between more than two norms are less frequent or easier to resolve under domestic legal system. In contrast, international law lacks these features of a centralized legislative body with a hierarchical structure of rules. Under the decentralized structure of international law, international regimes are the products of horizontal law-making processes: each regime consists of treaties of an equal rank. Accordingly, there is no clear hierarchy among conflicting legal regimes, which constitutes a major challenge for international policy makers in preventing and resolving conflicts between different rules of international law. 2 Multiple Dimensions of the Regime Conflict Each type of conflict demands a different response. To make a better determination as to which conflict resolution strategies are appropriate to apply, varying features of each conflict type must be considered. Previous discussions of what constitutes an international regime have significant implications for understanding the varying dimensions of regime conflict. First, if one perceives an international regime in terms of a set of explicit legal rules created by the states, regime conflict is best described in terms of conflict between multiple rules contained in two or more specialized international regimes. This is a traditional scenario of regime conflict which typically occurs between two or more legally valid international rules. For instance, regime conflict can be identified in the relationship between the substantive provisions of the WTO Agreement, such as the prohibition against quantitative restrictions under Article XI of the GATT 1994 on the one hand, and the simultaneously existing obligations to impose such restrictions pursuant to provisions of a multilateral environmental treaty on the other. If one focuses on the institutional features of the regime, the lens of understanding regime conflict will be the ways in which rules are interpreted and applied in the various institutional settings. For example, this feature of regime conflict is present in a situation in which two different adjudicating bodies claim to have jurisdiction to address the factual or legal aspects of the same matter in a legal dispute and each of these judicial bodies makes a decision on the matter according to its own terms and understanding at the exclusion of each other’s jurisprudence. This type of conflict can also be found in cases in which two law application agencies provide divergent interpretations of substantively similar rules in different cases. In both cases, each institution naturally considers itself as a proper forum in which to address the situation and interpret rules involved in the dispute.

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Lastly, if one sees the regime as encompassing not only the explicit rules and institutions, but also the complex decision-making processes shaped by a variety of participants, the picture of regime conflict becomes more colorful. Even conflicts between varying policy priorities pursued by different regimes and various struggles of involved stakeholders can be included within the regime conflict debate. Regime conflicts do not arise in isolation: in a majority of cases, rule conflicts are combined with jurisdictional conflicts, conflicts of different levels of policies as well as competing interests originating from these conflicting policies. From another analytic point of view, regime conflict can also be categorized into “intra-systemic” conflict and “inter-systemic” conflict. The “intra-systemic” conflict arises out of the interaction of multiple rules within one regime of international law.102 For instance, the conflict between the provisions of the GATT Agreement and the rule of the Agreement on the Application of Sanitary and Psytosanitary Measures (“SPS Agreement”), provides an example of intra-systemic conflict.103 Both treaties are established under the auspices of the WTO system. The features of intra-systemic conflict are found in the conflict between general international law and treaties. General international law “encompasses the rules that states are ‘born into’ and that are binding on all states irrespective of explicit consent and subject matter.”104 The jus cogens norms, the UN Charter, rules of treaty interpretation as well as customary international law are some examples that have been considered to constitute general international law.105 Treaties are international 102  Ralf Michaels & Joost Pauwelyn, Conflict of Norms or Conflict of Laws? Different Techniques in the Fragmentation of International Law, 22 Duke J. Comp. & Int’l L. 349, 356 (2012). 103  As explored in the previous sub-section, the WTO Panel and Appellate Body have dealt with various aspects of intra-regime conflicts. 104  Michaels & Pauwelyn (2012), at 363. 105  There is no general agreement as to what constitutes general international law. Many international law scholars have recognized the customary international law as a general international law. Along these lines, Vattel states, “as soon as it is evident that a treaty binds only the contracting parties, conventional international law is not general but particular law.” According to this once prevailing theory, treaty law cannot be general international law. See for examples, Emer De Vattel, The Law of Nations 24 (Carnegie Institution of Washington, 1916), Ian Brownlie, Problems Concerning the Unity of International Law, in International Law in the Time of its Codification. Essays in Honour of Robert Ago Vol. I 154 (Robert Ago ed., Dott A. Giuffre, 1987); nevertheless, scholars have called for a reexamination of the rigid understanding that general international law only includes customary

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agreements concluded between states in written form and governed by international law, whether embodied in a single instrument, or two or more related instruments and whatever its particular designation.106 The “inter-systemic” conflict constitutes another dimension of regime conflict in international law.107 Conflicts between different sub-systems of international law typically have features of inter-systemic conflict. These subbranches of international law are highly specialized and functional regimes, which are “essentially complete.”108 For example, a trade restriction concerning an endangered species can be a proper subject matter of both the WTO treaty provision and the rule of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). These provisions can potentially be applied to the same facts. (i.e., trade in endangered species). This conflict between legally binding international treaties, having equal status (i.e. WTO Agreement and the CITES) is conceived as inter-systemic conflict. 3 Norm Conflict in International Law While numerous theories have been proposed to clarify the meaning of normative conflict, defining conflict is no easy task.109 To date, no legal text provides law. In consideration with the exponential growth of multilateral treaties, these scholars assert that some multilateral convention should also be part of general international law. See Gregory Tunkin, Is General International Law Customary Law Only?, 4 Eur. J. Int’l L. 534, 541 (1993); Roozbeh B. Baker, Customary International Law in the 21st Century: Old Challenges and New Debates, 21 Eur. J. Int’l L. 173, 175 (2010); Michaels & Pauwelyn (2012), at 363. 106  V CLT, Article 2(1)(a); Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [“VCLT” or “Vienna Convention”]. 107  Michaels & Pauwelyn (2012), at 362, 365. 108  Ibid., at 361. 109  In the early twentieth century, many attempts were made to understand features of normative conflict and the relationship between different rules of international law. See for examples, Quincy Wright, Conflicts between International Law and Treaties, 11 Am. J. Int’l L. 566 (1917); Sir John Fischer Williams, The New Doctrine of “Recognition”, 18 Transactions of the Grotius Society, Problems of Peace and War, Papers Read before the Society in the Year 1932, 109–129 (1932); Hersch Lauterpacht, The Covenant as the Higher Law, 17 Brit. Y.B. Int’l L. 54 (1936); Hersch Lauterpacht, Contracts to Break a Contract, 52 L.Q. Rev. 494 (1936); Josef L. Kunz, The Meaning and the Range of the Norm Pacta Sunt Servanda, 39 Am. J. Int’l L. 180 (1945); Hans Kelsen, Conflicts between Obligations under the Charter of the United Nations and Obligations under other International Agreements, 10 U. Pitt. L. Rev. 284 (1949); Hans Aufricht, Supersession of Treaties in International Law, 37 Cornell L. Rev. 655 (1951–1952) at 655–700; Jenks (1953); George Schwarzenberger, International Law as Applied by International Courts and Tribunals, Vol. 1 472–487

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a formal definition of conflict capable of providing useful guidance for interpreters in identifying and managing conflicts between international regimes,110 neither is there scholarly agreement on this matter.111 Conflict between multiple norms of international law may be defined narrowly or widely: some favor a strict definition of conflict, whereas others define the same term more broadly. This section seeks to define what constitutes a conflict in international law by examining works of legal scholars as well as analyzing existing case law. 3.1 The Narrow Definition of Conflict In a strict conceptualization of term conflict is defined as a direct incompatibility of two legal norms. The work of Jenks has been one of the most influential reference points in understanding regime conflict. In particular, he established a classic narrow definition in public international law that had significant impact on international scholarship and jurisprudence. Jenks offers the following definition of conflict in his 1953 article: A divergence between treaty provisions dealing with the same subject or related subjects does not in itself constitute a conflict. Two law-making treaties with a number of common parties may deal with the same subject with different points of view or be applicable in different circumstances or one of the treaties may embody obligations more far reaching than, but not inconsistent with, those of the other. A conflict in the strict sense of direct incompatibility arises only where a party to the two treaties cannot simultaneously comply with its obligations under both treaties.112 From his perspective, conflict exists “where a party to two treaties cannot simultaneously comply with its obligations under both treaties.”113 Even when two treaty provisions imposing different obligations deal with same subject matter, if one obligation is stricter than the other, there is no conflict, since it is possible for states, the duty-holders, to abide by both obligations simultaneously by following the stricter one. (Stevens, 3rd ed., 1957); Arnold D. McNair, The Law of Treaties 219–222 (Oxford University Press, 1961). 110  Even though there are provisions dealing with the cases of conflict, such as Article 103 of the UN Charter or Articles 30 and 31 of the VCLT, none of these legal texts offers a clear definition of conflict. 111  Borgen (2005), at 575. 112  Jenks (1953), at 435. 113  Ibid., at 426.

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Karl similarly opts for a strict definition of conflict. He finds a conflict “between treaties when two or more treaty instruments contain obligations which cannot be complied with simultaneously.”114 Not every divergence between rules of international law is a conflict: in his view, “incompatibility of contents is an essential condition of conflict.”115 Czaplinski and Danilenko also state that “[o]ne can speak of the conflict of treaties when one of the treaties binding on the parties obliges party A to take action X, while another stipulates that A should take action Y, and X is incompatible with Y.”116 Marceau is one of the more recent scholars to provide a narrower definition of conflict. Her work examines conflicts between WTO Agreements and Multilateral Environment treaties through the lens of narrow understanding of norm conflict.117 She assumes that “depending on one’s conception of the international legal order,” a conflict may be defined in narrow or broad terms.118 In her view, “if one believes that international commitments should be understood in the light of some coherent international order, one favours narrow definitions of conflict.”119 Adopting Jenks’ strict definition of conflict, Marceau refers to the corresponding WTO DSB’s narrow approach on conflict found in recent decisions. Ali Sadat-Akhavi recognizes direct incompatibility as a primary condition for identifying a conflict: he observes that “a conflict of norms arises when it is impossible to comply with all requirements of two norms.”120 Wolfrum and Matz also opt for a narrower definition of conflict while their definition takes a broader approach than Jenks.121 Scholars favoring a strict definition argue that their understanding is justified in view of the principle of presumption against conflict. From their perspective, a strong presumption against conflict exists in international law.122 114  Karl (1984), at 467, 468. 115  Ibid., at 468. 116  Wladyslaw Czaplinski & Gennady M. Danilenko, Conflict of Norms in International Law, 21 Netherlands Int’l L. Rev. 3, 12 (1990). 117  Gabrielle Marceau, Conflict of Norms and Conflict of Jurisdictions: The Relationship between the WTO Agreement and MEAs and Other Treaties, 35 J. World Trade 1081 (2001). 118  Marceau (2001), at 1082–1083. 119  Ibid., at 1082. 120  Ali Sadat-Akhavi, Methods of Resolving Conflicts between Treaties 5 (Martinus Nijhoff Publishers, 2003). 121  Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law 4 (Springer, 2003); in a similar vein, Jan B. Mus, Conflict between Treaties in International Law, 45 Netherlands Int’l L. Rev. 208, 214–217 (1998). 122  Oppenheim’s International Law Vol. I 1275 (Robert Jennings & Arthur Watts eds., Longman, 9th ed., 1992); Pauwelyn, (2001) at 542; see Case Concerning Right of Passage over Indian

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This presumption is originally derived from a principle of statutory interpretation in a national legal context concerning contract law. A newly-created norm is presumed not to be in conflict with existing rules of international law, because, as in the domestic law-making process, each state (the legislator) is supposed to create new international rules in consideration of its existing legal obligations; under the principle of good faith, states take into account their existing treaty obligations when they negotiate new arrangements. As long as the new treaty does not contract out of the existing rule, that rule continues to apply, along with the provisions contained in the new treaty.123 The conflict must be narrowly construed in the sense that—under such presumption—in theory, the sovereign wills cannot act in different directions when signing treaties. In line with the presumption against conflict, adherence to a narrow definition ultimately leads to maintain the terms of agreement concluded between states as much as possible. The broad definition, by contrast, would only allow the third party adjudicator to modify rights and obligations initially stipulated in the provision that allegedly conflict with the terms subsequently negotiated by the states parties. However, the existence of this presumption cannot itself provide justification for choosing a narrow definition. The principle of presumption against conflict explains a general expectation of international law towards continuity of its norms, but does little clarify what conflict means. The law-making scenario under this presumption is far from how international law consisting of multiple layers of specialized regimes actually works in practice. The presumption against conflict may be applicable in terms of the relationship between rules within the same international regime where presumably, law-making

Territory (Portugal v. India), Preliminary Objections, I.C.J. Reports 1957, p. 125 (Nov. 26) [“Right of Passage (1957)”], p. 142; The WTO Panel in Turkey—Textiles noted, “in view of the presumption against conflicts, as recognized by Panels and the Appellate Body, we bear in mind that to the extent possible, any interpretation of these provisions that would lead to a conflict between them should be avoided.” WTO Panel Report, Turkey—Textiles, para. 124; the Indonesia—Autos Panel also accepted this general presumption against conflicts in public international law by referring to Jenks and Karl. It held that “in light of the general international law presumption against conflicts and the fact that under public international law a conflict exists in the narrow situation of mutually exclusive obligations for provisions that cover the same type of subject matter.” Indonesia—Certain Measures Affecting the Automobile Industry, WTO Doc. WT/DS54/R, WT/DS59/R, WT/ DS64/R, Jul. 2, 1998 [“Indonesia—Autos”], para. 334; see Czaplinski & Danilenko (1990), at 13. 123  Pauwelyn (2001), at 428, 542.

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agencies involved in the negotiation and conclusion of that particular international instrument would not intend to incur conflicting obligations. The strict definition of conflict has been reflected in some decisions of international courts and tribunals. WTO jurisprudence offers important insights into the treatment of regime conflict. Given the multiplicity of WTO agreements and accompanying instruments, the WTO regime stipulates a number of explicit conflict clauses that could be applied in the event of conflicts between different WTO provisions. For instance, the General Interpretative Note to Annex 1A of the Marrakesh Agreement sets out a conflict avoidance clause in the following terms: In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referred to in the agreements in Annex 1A as the “WTO Agreement”), the provision of the other agreement shall prevail to the extent of the conflict.124 This provision governs the relationship between various agreements under the auspices of WTO. When a conflict arises between, for example, a GATT provision and a provision of the Agreement on Trade-Related Investment Measures (“TRIMS Agreement”),125 the latter prevails over the former to the extent of the conflict. Nevertheless, no definition of “conflict” is written in any of WTO instruments. Thus, when confronted with a case in which an explicit definition of conflict is required, WTO dispute settlement bodies rely on their own understanding of conflict. Under the WTO regime, specific criteria to define conflict have been primarily developed by the Panel and the Appellate Body. In the following cases, the WTO DSB opted for a narrow definition of conflict, explicitly referring to the definition proposed by Jenks.126 In Indonesia– Autos, the Panel opted for this strict definition of conflict. Here, the measure in dispute was adopted pursuant to Indonesian National Car Programmes designed to provide certain benefits for the local automobile industry in 124  General Interpretative Note to Annex 1A, Apr. 15, 1994, Legal Instruments—Results of the Uruguay Round, 1867 U.N.T.S. 154 (1994) [“General Interpretative Note”]. 125  Agreement on Trade-Related Investment Measures, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Apr. 15, 1994, 1868 U.N.T.S. 186 [“TRIMS Agreement”]. 126  See Indonesia—Autos, para. 14.28, fn. 649; WTO Panel Report, Turkey—Restrictions on Imports of Textile and Clothing Products, WTO Doc. WT/DS34/R, May 31, 1999 [“Turkey— Textiles”], para. 9.92.

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Indonesia. The Complainant countries brought a claim against Indonesia that this measure violates Article III of the GATT 1994 and the TRIMS Agreement, because Indonesia’s subsidy program treated imported products less favorably than domestic like products. As a defense, Indonesia asserted that the measures in dispute must be governed by the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”)127 instead. Indonesia invoked its special status as a developing country under Article 27.3 of the SCM Agreement which gave it an explicit right to maintain this type of provisional local subsidy. Since the SCM Agreement constitutes lex specialis to the GATT 1994’s Article III, the provision contained in the SCM agreement should be applied to the exclusion of the GATT provision. Examining Indonesia’s defense, the WTO Panel found it necessary to decide whether a conflict exists between the provisions under dispute. The Panel narrowly defined the conflict and further asserted that mere policy or goal conflicts between WTO agreements must be excluded from the ambit of conflict definition.128 It explained in greater detail: In international law for a conflict to exist between two treaties, three conditions have to be satisfied. First, the treaties concerned must have the same parties. Second, the treaties must cover the same substantive subject-matter. Were it otherwise, there would be no possibility for conflict. Third, the provisions must conflict, in the sense that the provisions must impose mutually exclusive obligations.129 In the Panel’s view, for a conflict to exist, three conditions must be met: the first condition is concerned with the same identity of the parties. However, whether the identity of states parties to the instrument under dispute is same as that of the allegedly conflicting treaty is a relevant factor only in the narrow understanding of conflict. Secondly, the Panel observed that two treaties needed to deal with the same subject matter in order to identify the conflict. This criterion does not clarify anything with respect to defining the conflict. Under the narrow definition of conflict, in order to claim that two or more rules contained in different international legal instruments conflict, these rules must regulate one and the same situation from the outset. This already points to the fact that these rules deal with the same subject matter. The third criterion asks 127   Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1869 U.N.T.S. 14. 128  W TO Panel Report, Indonesia—Autos, para. 14.56. 129  Ibid., para. 14.28.

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whether the obligations imposed by two treaty provisions are directly incompatible with each other. After setting out these conditions, the Indonesia–Autos Panel noted that the SCM Agreement and the GATT deal with different aspects of the same matter, satisfying the first and the second criteria. In its view, however, the relevant provisions of the SCM Agreement and the GATT Article III are “not mutually exclusive”: provisions of the two WTO instruments could be simultaneously enforced. In this sense, Indonesia would have adhered to its obligations under the SCM Agreement without violating Article III and vice versa. The Panel failed to address Indonesia’s rights as a developing country under the SCM Agreement as argued by Indonesia. This point can be developed into a valid argument. If the SCM Agreement gives an explicit right or permission to Indonesia to take such measures (i.e. certain local subsidies), that authorization can be interpreted in such a way as to conflict with obligations under the GATT. Nevertheless, the Panel merely stated that conflict exists in a situation of mutually exclusive obligations, thus excluding the possibility of conflicts between express permissions (i.e. a permission to provisionally maintain certain subsidies) and duties (i.e. an obligation to provide national treatment). On this point, Pauwelyn argues that from a careful reading of the explicit conflict clause in the General Interpretative Note to Annex 1A of the WTO Agreement, the SCM Agreement would have prevailed over the GATT to the extent of conflict.130 The Panel in Turkey—Textiles faced a similar problem concerning potential conflict between different WTO provisions. India challenged Turkey’s quantitative restriction on Indian textile products,131 claiming that this measure violates Article XI of the GATT 1994 and the Agreement on Textiles and Clothing (“ATC”) prohibiting such restrictions.132 From Turkey’s perspective, its measure setting quantitative restrictions must be justified in view of Article XXIV of the GATT 1994. Article XXIV is concerned with the creation of Regional Trade 130  Joost Pauwelyn, Conflict of Norms in Public International Law. How WTO Law Relates to other Rules of International Law 193–194 (Cambridge University Press, 2003). 131  In this case, Turkey set quantitative restrictions on 19 categories of textile and clothing products imported from India. 132  This case concerns the agreement for the formation of a customs union between Turkey and the EC. In connection with the formation of the customs union, Turkey was required to apply substantially the same commercial policy as the EC in relation to textiles. In 1996, Turkey introduced quantitative restrictions on 19 categories of textile and clothing imports from India. Turkey argued that its action was justified under Article XXIV of GATT 1994. The panel found these quantitative restrictions to be inconsistent with Articles XI and XIII of the GATT 1994, and Article 2.4 of the Agreement on Textiles and Clothing.

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Agreements (“RTA”) (e.g. Customs Union, FTA) as well as their implications on the member’s rights and obligations under the WTO. At the creation of the RTA, this provision establishes a lex specialis for the rights and obligations of WTO Members.133 On these lines, Turkey argued that the restrictive measure allegedly in violation of WTO provisions prohibiting this policy had to be implemented to meet its treaty obligations under the regional trade framework concluded between Turkey and the EC. With respect to trade in textiles, Turkey was required to adhere to substantially the same commercial policy as the EC pursuant to the agreement that created a Customs Union between Turkey and the EC under the purview of Article XXIV. It is worth noting that the Panel in this case made a clear reference to Jenks’ definition of conflict as well as the Panel Report in Indonesia—Autos. The Turkey—Textiles Panel adopted a strict understanding of conflict: [t]here is no conflict if the obligations of one instrument are stricter than, but not incompatible with, those of another, or it is possible to comply with the obligations of one instrument by refraining from exercising a privilege or discretion accorded by another.134 The Panel took a narrow definition as noted, and then denied the existence of conflict in the case at hand. It seems to hold the view that obligating rules (i.e. prohibition of quantitative restrictions as prescribed by GATT Article XI) do not conflict with permissive rules (i.e. rights under regional trade agreement as expressed in GATT Article XXIV). In other parts of the decision, nevertheless, the Turkey—Textiles Panel exhibited an ambivalent attitude with respect to its interpretation of conflict. To be specific, the Panel went on to examine whether Article XXIV authorizes measures which the GATT and ATC “otherwise prohibit.”135 On this point, it was implicitly noted the right granted under Article XXIV could conflict with the prohibition of Article XI. Moreover, the Turkey—Textiles Panel even referred to a broad definition of conflict held by the Panel in EC—Bananas. The Panel in Turkey—Textiles prematurely completed its analysis of this issue, simply recalling the principle of effective interpretation: the “principle of [effective] interpretation prevents us from reaching a conclusion on the claims of India or the defense of Turkey, or on the related provisions invoked by the parties, that

133  W TO Panel Report, Turkey—Textile, para. 9.88. 134  W TO Panel Report, Turkey—Textile, para. 9.92. 135  Ibid., para. 9.95.

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would lead to a denial of either party’s rights or obligations.”136 In any event, while this Panel apparently favored a narrower definition of conflict, the exact elements of the conflict are still unclear. The Appellate Body decision in Guatemala—Cement137 had an ample opportunity to define the meaning of conflict in the context of possible conflicts between different provisions of WTO Agreements. The Appellate Body in this case examined whether a conflict exists between general provisions of the WTO Dispute Settlement Understanding (“DSU”)138 and the procedural rules contained in the WTO Anti-Dumping Agreement. This point was one of the issues subject to appeal. To be specific, the relationship between Article 6.2 of the WTO DSU and the procedural provisions contained in Article 17.5 of the Antidumping Agreement was under examination.139 Article 6.2 of the DSU provides that a WTO Member is entitled to request the establishment of a Panel subject to the conditions that the request is made in writing, that it identifies the specific measures at issue and provide a brief summary of the legal basis of the complaint. On the other hand, Article 17.5 of the Anti-dumping Agreement provides partially different conditions for the request for the establishment of a Panel.140 After emphasizing the importance of harmonizing interpretation, considering both agreements as “complementing each other,” the Appellate Body in Guatemala—Cement concluded: 136  Ibid., para. 9.96; interestingly, the Panel in this case ultimately found Turkey’s quantitative restrictions to be inconsistent with Articles XI and XIII of the GATT 1994 and Article 2.4 of the ATC. 137  W TO AB Report, Guatemala—Anti-Damping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, Nov. 2, 1998 [“Guatemala—Cement”]. 138   Understanding on Rules and Procedures Governing the Settlement of Disputes Article 23(2)(a), Apr. 15, 1994 Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401 [“DSU”]. 139  The Appellate Body in this case relied on Article 2.1 of the DSU which states that to the extent that there is a difference between the rules and procedures set forth in DSU and special or additional rules and procedures of other WTO Agreements regarding dispute settlement, the provisions of the latter prevail. 140  Article 17(5) of the WTO Antidumping Agreement reads: “[t]he DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon: (i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and (ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.”

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Accordingly, if there is no “difference,” then the rules and procedures of the DSU apply together with the special or additional provisions of the covered agreement. In our view, it is only where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other that the special or additional provisions are to prevail. A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them. An interpreter must, therefore, identify an inconsistency or a difference between a provision of the DSU and a special or additional provision of a covered agreement before concluding that the latter prevails and that the provision of the DSU does not apply.141 (emphasis original) A conflict occurs “only in the specific circumstance where a provision of the DSU and a special or additional provision of another covered agreement are mutually inconsistent”.142 Accordingly, this special or additional provision may be read to prevail over the provisions of the DSU. The Appellate Body deals with the conflict between provisions both contained in WTO Agreement, not the conflict between varying rules prescribed by different international arrangements. It is understood that the Appellate Body in this case took note of a stricter definition of “conflict.”143 This position was later confirmed by the Appellate Body decision in United States—FSC144 case. Here, the Appellate Body adopted the narrow definition of conflict in examining the relationship between the DSU provision and the procedural rules of the Agreement on Subsidies and Countervailing Measures.145 More recently, in the case of the Application of the Interim Accord of 13 September 1995, the ICJ had another opportunity to define the meaning of conflict. This case was brought by the former Yugoslav Republic of Macedonia against Greece for “a flagrant violation of its obligations under Article 11” of the Interim Accord concluded between the Parties to the dispute. The ICJ applied 141  W TO AB Report, Guatemala—Cement, para. 65. 142  Ibid., para. 66. 143  Marceau (2001), at 1085; Elisabetta Montaguti and Maurits Lugard, The GATT 1994 and Other Annex 1A Agreements: Four Different Relationships?, 3 J. Int’l Econ. L. 473 (2000); but for different perspective in analyzing the implication of this case, see Pauwelyn (2003). 144  W TO AB Report, United States—Tax Treatment for Foreign Sales Corporations, WT/DS108/ AB/R, Mar. 20, 2000. 145  Ibid., para. 159.

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the narrow definition when interpreting the rights and obligations of Greece under the Article 22 of the Interim Accord.146 3.2 The Broad Definition of Conflict On the other hand, a broad definition of conflict has been advocated by some scholars advocated by some scholars. This appeared in a relatively smaller in a relatively smaller number of decisions rendered by international courts. Unlike the narrow definition of conflict, two norms do not have to be mutually exclusive in order to constitute a case of conflict. Scholars in favor of a broad definition often highlights the works of eminent legal theorists such as Karl Engisch and Hans Kelsen in order to find a scholarly foundation for exploring the meaning of conflict.147 Engisch finds a conflict when “a given behaviour appears in abstracto or in concreto as prescribed and not prescribed, or as prohibited and not prohibited, or even as prescribed and prohibited.”148 Interestingly, in laying out his definition, he includes cases where conduct appears to be permitted and prohibited at the same time. Kelsen similarly took a flexible approach to the conflict.149 Although Engisch and Kelsen offer profound insights on the meaning of the conflict between norms, their works do not consider the topic in the context of international law. Aufricht defines norm conflict in international law broadly.150 From his perspective, conflict arises when two treaties “deal with the subject matter in a different manner.”151 He also finds a conflict when there is a divergence between permissive rules and obligating rules into his definition of conflict. Regarding the conflict between an earlier and a later treaty, he observes that conflict arises “if both deal with the same subject matter and if at least one 146  Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment, I.C.J. Reports 2011, 644 (Dec. 5), 678–679. 147  See Erich Vranes, The Definition of ‘Norm Conflict’ in International Law and Legal Theory, 17 Eur. J. Int’l L. 395 (2006). 148  Karl Engisch observes, “[e]in Verhalten [erscheint] in abstracto oder in concreto zugleich als geboten und nicht geboten oder als verboten und nicht verboten oder gar als geboten und verboten.” As translated in Vranes, (2006) at 406 (quoting Karl Engisch, Die Einheit Der Rechtsordnung 162 (Winter, 1935)). 149  Bruno Celano, Norm Conflicts: Kelsen’s View in the Late Period and a Rejoinder in Normativity And Norms: Critical Perspectives on Kelsenian Themes 343–359 (Stanley L. Paulson & Bonnie Litschewski Paulson eds., Oxford University Press, 2001). 150  Pauwelyn (2003), at 167–168. 151  Hans Aufricht, Suppression of Treaties of International Law, 37 Cornell L. Quarterly 655, 656 (1952).

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State is party to both treaties.”152 Salmon also favors a broader definition of conflict.153 In more recent legal scholarship, Bartels advocates a broader definition of conflict, stating that “a treaty which defeated the object and purpose of the earlier treaty should be seen as conflicting with this earlier treaty”154 Pauwelyn makes significant contributions to examine multiple legal problems regarding norm conflict in international law. Pauwelyn, a strong critic of the narrow understanding of conflict, opts for a wider definition. Two norms are in conflict “if one constitutes, has led to, or may lead to, a breach of the other.”155 In his view, this broad definition is meant to cover “incompatibilities between permissive norms and obligations.”156 He further clarifies that following types of inconsistencies should be regarded as constituting a conflict: Notwithstanding the varying definitions of conflict set out earlier, adopted by different authors, it is difficult to find reasons why a conflict or inconsistency of one norm with another norm ought to be defined differently from a conflict or inconsistency of one norm with other types of state conduct (e.g., wrongful conduct not in the form of another norm) Essentially, two norms are, therefore, in a relationship of conflict if one constitutes has led to, or may lead to a breach of the other.157 In favor of a broader definition, Borgen observes that a conflict may exist even when “the mere existence of, or the actual performance under, one treaty will frustrate the purpose of another treaty.”158 Pursuant to his assertion, the 152  Ibid., at 655. 153  Salmon further states that “[t]he existence of incompatible legal rules in a given legal system; which has the consequence that the interpreter cannot apply both rules at the same time, that he has to make a choice.” Jean J.A. Salmon, Les antinomies en droit international public in Jean J.A. Perelman (dir.), Les antinomies en droit 285 (Bruylant, 1965) (as translated in Vranes (2006), at 406); the original French text reads: “l’existence, dans un systeme juridique déterminé, de règles de droit incompatibles; de telle sorte que l’interprète ne peut appliquer les deux règles en même temps, qu’il doit choisir.” 154  Lorand Bartels, The Relationship between Treaties, Policy Paper for the Center of International Environmental Law (2001). 155  Pauwelyn (2003) at 175; Pauwelyn’s view is supported by Erich Vranes, Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory 61 (Oxford University Press, 2009). 156  Pauwelyn (2003), at 199. 157  Ibid., at 175. 158  Borgen (2005), at 575.

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narrow definition fails to address properly the concerns of states. He points out that “states are not only concerned with when it is impossible for a state to abide by two treaties, but also when one treaty frustrates the goals of another.”159 Vranes further enriches the recent discussion of regime conflict in international law.160 He finds the traditional definition proposed by Jenks too rigid. According to Vranes, “there is a conflict between two norms, one of which may be permissive, if in obeying or applying one norm, the other one is necessarily or possibly violated.”161 He argues that not only conflicts between obligations but also conflicts between obligations and permissions should be included as a possible conflict scenario. In a number of decisions rendered by international courts, adjudicators took a broader definition of conflict in responding to the parties’ claims for the existence of conflict. EC—Bananas162 was the first case decided by the WTO DSB involving the issue of conflict definition. The measure in dispute concerns the EC’s import licensing procedures for bananas, which, was intended to combine obligations to former colonies within the single European market. In this case, GATT 1994, TRIMs, and the Agreement on Import Licensing Procedures163 were involved in the regulation of the EC’s import licensing schemes that were in dispute. The Panel in EC—Bananas initially interpreted the term conflict in the General Interpretative Note to include only those cases in which a provision in one agreement prohibits what a rule in another agreement explicitly permits or in which a member cannot comply with both requirements simultaneously. This Panel concluded in favor of a broad definition of conflicts. It found a conflict in situations where a rule in one agreement prohibits what a rule in another agreement explicitly permits.164 Subsequent to the parties’ appeals, as a preliminary issue, the Appellate Body had to examine the relationship between GATT 1994 on the one hand and Annex 1A Agreements (namely, the Agreement on Import Licensing 159  Ibid. 160  See for instance, Vranes (2009). 161  Vranes (2006), at 415. 162  W TO Panel Report on European Communities—Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/R, May 22, 1997. WTO AB Report, European Communities—Regime for the Importation, Sale and Distribution WT/DS27/AB/R, Sept. 9, 1997 [“EC—Bananas”]; Complaining Parties (the European Communities and Ecuador, Guatemala, Honduras, Mexico and the United States) appealed about certain issues of law and legal interpretations in the Panel Report. 163  W TO Agreement on Import Licensing Procedures, Apr. 15, 1994, 1868 U.N.T.S. 436. 164  W TO AB Report, EC—Bananas, para. 7.159.

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Procedures and the TRIMs) on the other. The Appellate Body first agreed with the Panel that the General Interpretative Note on Annex 1A is applicable to governing the relationship between these Agreements. Examining the conflict clause contained in the General Interpretative Note on Annex 1A, the report of the Appellate Body in EC—Bananas makes the following observation: In light of the wording, the context, the object and the purpose of this Note, we consider that it is designed to deal with (i) clashes between obligations contained in GATT 1994 and obligations contained in agreements listed in Annex 1A, where those obligations are mutually exclusive in the sense that a Member cannot comply with both obligations at the same time, and (ii) the situation where a rule in one agreement prohibits what a rule in another agreement explicitly permits.165 In this case, the Appellate Body clearly accepted that an obligation and an explicit right could constitute a conflict. It adopted a broader notion of conflict that was inconsistent with the Panel’s view. The 2006 ILC Report on the fragmentation of international law adopted a broad notion of conflict. In identifying a conflict, it is first necessary to assess “whether the fulfillment of the obligation under one treaty affects the fulfillment of the obligation of another” and “this ‘affecting’ might then take place either as strictly preventing the fulfillment of the other obligation or undermining its object and purpose in one or another way.”166 According to the ILC Report, regime conflict involves a situation where the “relevant treaties seem to point to different directions in their application by a treaty” or alternatively, when “a situation where two rules or principles suggest different ways of dealing with a problem.”167 3.3 Summary The concept of norm conflict in international law can be understood in a narrow or broad sense. Various definitions have been proposed by scholars or clarified in the decisions of international courts and tribunals. These suggestions are often subject to different interpretations, adding confusion to this area of study. A narrow definition prevailed in earlier approaches to defining conflict. In this understanding, conflict arises in situations where giving effect to one 165  W TO AB Report, EC—Bananas, para. 7.159. 166  I LC Fragmentation Report (2006), para. 254. 167  Ibid., para. 23.

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international rule (with the accompanying obligation) directly leads to the violation of another international rule. A broad definition of conflict does not confine conflict to the situations where compliance with one international rule leads to outright violation of another. A broadly defined conflict encompasses situations involving limitation of conflicting rights and obligations, simultaneously and separately arising from other international rules at stake. This broader and more inclusive understanding will be adopted throughout the present study. Given the narrow understanding, conflict can only arise in the presence of direct incompatibility of mutually exclusive obligations. However, conflicts cannot simply be reduced to cases in which two provisions impose mutually exclusive obligations; the narrow definition cannot properly address situations where a permissive rule may conflict with an obligating or prohibiting rule. Interestingly, even Jenks acknowledged this difficulty; a narrow definition of conflict might not cover all the divergences and inconsistencies between treaties that have negative effects on the coherence of international legal order.168 As Bartels strongly argues, the narrow definition, limited as it is to conflicts of obligations, will lead states to favor only the most stringent obligations. In a similar vein, Pawelyn observes that given the narrow understanding of conflict, states will automatically give preference to commands and prohibitions over permissions.169 Vranes notes that “a strict definition runs counter to the basic principle that norms have to be interpreted in a way that does not reduce them to inutility.”170 Applying the narrow definition fails to prevent certain obvious conflicts from being defined away. Regime conflict may not be confined to the case of two directly incompatible or mutually exclusive treaty obligations. Instead, a conflict arises when the same act is subject to different norms. It is a situation where multiple norms provide different normative guidelines pertaining to the same task; “two rules or principles suggest different ways of dealing with a problem.”171 A conflict can be conceived in cases where one norm requires an act while the other norm requires, or permits, a contrary act. The conflict arising between an obligation in one treaty and an explicit right granted by another treaty is considered to be in this category.172 For instance, conflict can be identified when compliance 168  Jenks (1953), at 451. 169  Pauwelyn (2003), at 166 ff. 170  Vranes (2006), at 20. 171  I LC Fragmentation Report (2006), para. 25. 172  In this light, Joost Pauwelyn states, “a WTO rule imposes an obligation not to restrict certain trade flows, but a later non-WTO rule (say, an environmental convention) grants an explicit right to restrict trade.” Pauwelyn (2001), at 551.

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with an IEL obligation requires state to breach its human rights obligations or its right to take certain actions for human rights protection. Secondly, conflict can also be found when one norm prohibits a necessary condition that must be met to abide by the other norm. In relation to this point, a conflict can also be identified when one norm prohibits a necessary consequence of another norm. In either situation, conduct in conformity with one rule implies a violation of the other rule. For example, IEL rules conflict with human rights law when the application of an IEL norm substantially frustrates a human rights norm or clearly undermines the State’s capacity to take reasonable measures to fulfill its human rights obligations. C

Regime Accommodation in International Law

A proper management of regime conflict is essential to maintaining the coherent development of international law, one basic goal of any legal system. Conflict resolution is also important to promoting the predictability and effectiveness of international law. When regime conflicts are properly managed, actors in international law can have better understanding of their rights and obligations set by various international legal arrangements. Strategies to resolve and minimize regime conflicts are also important to enhance actual compliance with the simultaneous treaty obligations that often contain conflicting requirements on the part of states, the primary duty-holders. As every legal system provides its own ways of avoiding and resolving conflicts between different rules of law, likewise, international law has various channels and tools for this purpose. One essential premise in establishing policies to deal with regime interaction and conflict in international law is: no matter how specialized and detailed its own treaty rules and institutions, one regime exists in a systematic relationship with another. To be truly operative in its application and implementation, every international regime inevitably makes use of the external rules of other regimes. As ICJ Judge Cançado Trindade observed in his separate opinion in the case of Whaling in the Antarctic in 2014, that “[w]ith the growth in recent decades of international instruments . . ., not one single of them is approached in isolation from the others: not surprisingly, the co-existence of international treaties of the kind has called for a systemic outlook” (emphasis added).173 173  Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports, p. 226, Mar. 31, 2014; in the case of Whaling in the Antarctic, the Court held that Japan’s whaling program in the Antarctic is not in accordance with the treaty provisions of the Schedule to the International Convention for the Regulation of Whaling.

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With this in mind, the current section provides a big picture as to how one regime can accommodate, incorporate or reflect external rules, principles and concerns of other regimes, at different stages of policy-making. The proposed strategies of regime accommodation seek to reconcile conflicting obligations derived from two or more regimes and resolve legal problems that possibly arise in the case of regime conflicts. These proposals can minimize the negative consequences created by difficult cases of regime conflicts. 1 Legislative Accommodation The most ideal way to “manage” or “avoid” a normative conflict between two different legal regimes is to prevent it from happening in the first place.174 A careful and conflict-sensitive treaty drafting process is essential in this regard. Alternatively, states can amend conflicting rules ex post with consideration to the change and development of international normative environments. While treaty amendment is a possible choice of policy in theory, it is a highly difficult, strenuous and time-consuming process in practice.175 Even in the nineteenth and early twentieth century when the development of international law was still in a fairly early phase, this line of practice was occasionally found in the terms of international legal arrangements. Under certain circumstances, the policy objectives in promoting interstate trade and investment were restrained in light of non-IEL considerations. The 1902 Convention for the Protection of Birds Useful to Agriculture176 was the first international instrument dealing with trade restrictions for the purpose of protecting species. Articles 2 and 4 of this Convention prohibited importation, sale and purchase of designated birds. Moreover, according to Article 10, the Convention urged Contracting states to “take steps” to implement their treaty obligations at the domestic level by promulgating relevant laws and adopting necessary administrative measures. The 1911 Convention between the U.S., the U.K., Northern Ireland and Russia for the Preservation and Protection of Fur Seals also contained a clause to restrict trade for the protection of certain species. Interestingly, the League of Nations envisioned certain restrictions on trade in Judge Trindade noted in his Separate Opinion, that such systemic outlook to deal with “interactions between systems” has been “flourishing” recently. Separate Opinion of Judge Cançado Trindade, para. 25 (emphasis original)(available at http://www.icj-cij.org/ docket/files/148/18146.pdf ). 174  Borgen (2005), at 584. 175  Anthony Aust, Modern Treaty Law and Practice 262 (Cambridge University Press, 2007). 176  Convention for the Protection of Birds Useful to Agriculture, 1902, IPE, 1615 et seq. The text of the Convention is found at http://eelink.net/-asilwildlife/bird_1902.html.

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light of securing non-economic policies. Article 23 of the 1919 Covenant as well as other international legal arrangements, clearly stipulate trade restrictions in the cases concerning the fair and humane conditions of labor, just treatment of colonial subjects, traffic in women and children and dangerous drugs, the armaments trade with countries in which control of this traffic: these issues were considered to be “in the common interest.” International instruments designed to suppress and ultimately abolish slave trade were discussed under the auspices of the League of Nations.177 The League also called for collective actions to regulate other immoral trade issues; the Convention of September 30, 1921 on the Suppression on the Traffic in Women and Children178 and further Convention of October 11, 1933 on the Traffic in Women of Full Age179 were subsequently established. In accommodating external legal rules, principles and interests, there are multiple drafting strategies: the normative relevance of non-IEL concerns in international economic law and policy can be addressed through careful treaty drafting. Chapter 4 will conduct a more detailed examination. First, treaty drafters may include a specific conflict clause in case of conflicts between the treaty at hand and other international agreements. The drafters may claim hierarchical superiority of one treaty over another or assert priority of the treaty at hand. In practice, regional and bilateral treaties occasionally contain conflict clauses addressing the relevance of the rights and obligations derived from extraneous treaties. In any case, conflict clause has some limitations partly because it is not conceivable that states would know in advance the complete picture of every possible application of that treaty to real-life problems, as well as their consequences.

177  Hudson (1944), at 2010; The Convention (i) the parties considered slave-trading and slavery incompatible with the ‘general principles which should guide their commercial and civilizing action’. (ii) They realized that slave-trading and slavery, as practiced in the nineteenth century, had become localized issues, largely limited to the Islamic parts of Africa and the Near East. (iii) They were even more conscious of the fact that, on a potentially unlimited sale, a new menace had arisen: forced labour as the twentieth-century equivalent of slavery. They—and, subsequently, the International Labour Organisation— decided to deal gingerly with this more relevant issue. (iv) Compared with the elaborate effort made in the General Act for the Repression of the African Slave Trade (2 July 1890), the 1926 Convention proved that the price of a more generalized application of treaty law was—and is—likely to be a reduced degree of stringency and a greater measure of concessions to the susceptibilities of national sovereignty. 178  Hudson (1944), at 726. 179  Ibid., at 469.

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The second option is to address normative linkages between different international regimes through the use of the exception clause. The breach of IEL treaty obligations may be justified, when the allegedly violative measures has been adopted to achieve certain non-IEL objectives recognized by the exception clause. Within the meaning and the scope of the exception clause, states enjoy regulatory flexibility in pursuing specifically prescribed policy objectives. Through the use of exception clause, states may align its substantive obligations under IEL agreements to specific national circumstances and use it as a channel to introduce non-IEL policy concerns. Third, the drafters can also make a special reference to rules contained in the external regimes, or stipulate positive obligations to take other rules of international law into account. This line of direct cross-reference to the external regimes has only been an occasional occurrence; as invoking extraneous values and norms originating from the external regime has been regarded as more of an undesirable practice. In the context of addressing non-economic concerns in international economic policymaking, the IEL treaties rarely make explicit textual references to human rights. The prospect for human rights concerns to be incorporated into the international economic governance has not been as promising. Lastly, the treaty drafters can create provisions establishing a principle of harmonious interpretation, with an objective of resolving treaty conflicts. Here, drafters invite law appliers, particularly courts and tribunals, to the policymaking scene of accommodating varying international legal regimes that often interact and conflict with one another. This line of interpretative principle creates a space to introduce non-trade and non-investment concerns to international economic decision-making. When certain conditions are met, courts and tribunals can make use of these provisions to provide an interpretative leeway for accommodating non-IEL concerns. 2 Administrative Accommodation Administrative accommodation can be conducted in the forms of policy coordination between intergovernmental agencies, operating under different international regimes. For example, intergovernmental organizations can engage in institutional dialogue with one another to reduce conflicting understanding on specific issues. Such inter-institutional dialogue can enhance awareness of the various rules and policies promoted by other international organizations. The ILO and the UNESCO has worked to promote policy coherence in the context of the potential conflict between the Migration for Employment Convention of the ILO and other relevant ILO conventions, and the UNESCO Convention

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on the free flow of persons; even at the very early stage of negotiation, both institutions cooperated each other.180 Under the current multilateral trading framework, international organizations such as the ILO, the UNEP, and the WHO have worked closely with the WTO Secretariat. Relevant sections in Chapter 4 will examine in details. 3 Adjudicative Accommodation International courts and tribunals (ICs) are the main facilitator of adjudicative accommodation. Norm conflict in international law are often identified in the disputes before the judicial bodies. In the actual dispute settlement settings, ICs apply various conflict resolution strategies to manage growing interaction and conflicts between multiple international regimes. Broadly speaking, there are three channels of making reference to human rights in the works of WTO Dispute Settlement Bodies and relevant arbitral tribunals. First, the parties to the dispute may make an explicit reference to external rules of international human rights law in order to support their claims or counter-claims. Where appropriate, the Claimant argues that the Respondent has violated certain rights contained in human rights treaties; this is particularly the case of investor-state dispute. The typical basis of human rights arguments raised by the Respondent is twofold: for one, the Respondent asserts that it had a well-founded policy reason (i.e. its existing commitment under the human rights treaty) for taking measures that allegedly violate IEL obligations. It argues for the rights and obligations to pursue policies that promote non-trade and non-investment agendas, in compliance with other branches of international law. For another, the Respondent may point to the apparent breach of human rights committed by the Claimant. Secondly, non-parties, such as intergovernmental organizations, the NGOs or other interested group may raise human rights norms by submitting amicus briefs pursuant to procedural rules governing various aspects of the proceedings. Since these actors are not the actual parties to the disputes at hand, their views and participation must be of limited influence to the outcome of the case. Finally, ICs as law-interpreters or appliers may make use of external rules contained in the external human rights regime, to clarify the meaning of provisions in dispute, when they see such references as necessary and appropriate in view of the decision-making power and authority conferred to them. In fact, the interpretative reference to other rules of international law is “an everyday 180  Jenks (1953), at 417.

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often unconscious, part of the interpretation process.”181 Alternatively, human rights concerns can also be raised when assessing the amount of damage or compensation in the conclusion of the dispute. Ultimately, the practical impact of human rights references—either raised by parties or non-parties— to the outcome of the individual case remains to be determined by the WTO DSB and other relevant arbitral tribunals. ICs determine the scope of human rights reference in IEL disputes. 181  McLachlan (2005), at 280.

CHAPTER 3

Regime Interaction and Conflict between International Human Rights and Economic Law in the Context of Historical Evolution of International Law and Institution A

International Law in Permanent Development Although every legal arrangement and the legal enterprise as a whole are always concerned with the future, they are rooted in an historic context which has shaped expectations and demands and which international lawyers ignore at their peril.182

International law scholars can find the origins of various features of international law by tracing out its genealogy.183 By examining historical narratives embedded in the dynamic development of international law, one can obtain clues essential to understanding political, intellectual and religious contexts of the past for what they contributed to contemporary international law. Robert P. Ward is regarded as one of the early pioneers who attempted to introduce historical analysis into the studies of the law of nations in the late eighteenth century.184 As only a small group of scholars had engaged in historical research in this area, about a century later, in 1908, Lassa Oppenheim described that the historical analysis of the rules of international law as the “most neglected” area 182  W. Michael Reisman, The Quest for World Order and Human Dignity in the twentyfirst century: Constitutive Process and Individual Commitment, General Course on Public International Law in Hague Academy of International Law 49 (Martinus Nijhoff Publishers, 2013). 183  Randall Lesaffer, International Law and its History: The Story of an Unrequited Love in Time, History and International Law 34 (Matthew Craven, Malgosia Fitzmaurice & Maria Vogiatzi eds., Martinus Nijhoff Publishers, 2007). 184  Lesaffer considers the work of Robert Ward and his followers in late eighteenth and early nineteenth centuries as the earliest efforts to emphasize the importance of the history of international law. Id.; see also Robert Ward, An Enquiry into the Foundation and the History of the Law of Nations in Europe, From the Time of the Greeks and Romans, to the Age of Grotius Vol. I & II (Originally Published in 1795) (P. Wogan, P. Byrne, W. Jones & J. Rice eds., The Lawbook Exchange, Ltd., 2005).

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004325517_004

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of the discipline, and among the various projects considered to be critical in the development of the “science of international law.”185 Decades later in 1953, J.H.W. Verzijl similarly remarked that the “historiography” of international law had long been “in a very unsatisfactory state.”186 Articles and monographs written on the history of international law have increased significantly, as compared to the early half of twentieth century, when Oppenheim and Verzijl voiced deep concerns about the indifference of the international jurists toward this line of analysis. Today, scholars increasingly employ a historical perspective to examine a range of topics of international law and institution from the historical perspective. Historical exploration of international law can and should be an integral part of international lawyers’ working guidelines, and should inform the basic features and functions of contemporary international law. Examining international law in its historic context serves two primary objectives. First, by using a historical analysis, Chapter III intends to provide a comprehensive understanding of the rise of international law in the area of human rights protection, and the regulation of trade and investment. It identifies various political, economic, religious and intellectual forces underlying the current rules of international law. Secondly, historical exploration may also be instructive in enhancing law appliers’ interpretative practices. As Brownlie observes, “the lawyer’s appreciation of the meaning of rules [. . .] and of the manner of their application in particular cases, will be rendered more keen by a knowledge of the historical development of the law.”187 Since legal problems are closely associated with various ongoing developments in society, it is important first to understand the overall social settings in which rules of international law have been formed, interpreted, and implemented.188 With this end in view, Chapter III reflects on the historical contexts behind the development of specialized international legal regulation in the fields of human rights protection and trade/investment regulation. It also explores how multiple specialized legal regimes of international law have been developed 185  Lassa Oppenheim, The Science of International Law: Its Task and Method, 2 Am. J. Int’l L. 313, 316 (1908). 186  J.H.W. Verzijl, International Law in Historical Perspective, Vol. I, 400 (A.W. Sijthoff, 1968); there were a relative smaller number of books on the history of modern international law. Arthur Nussbaum, A Concise History of the Law of Nations (Macmillan, 1954), Wilhelm Grewe, Epochen der Volkerrechts geschichte, The Epochs of International Law (Michael Byers transl., Walter de Gruyter Berlin, 2000). 187  Ian Brownlie, Principles of Public International Law 126 (Oxford University Press, 7th ed., 2008). 188  C. Wilfred Jenks, The Prospects of International Adjudications 775 (Stevens & Sons, 1964).

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in relation to each other. Structurally, Chapter III is divided into sub-sections, according to the four developmental phases in the history of international law. This Chapter sketches the history of the relationship between these regimes in the evolution of international law from the Peace of Westphalia era to the present.189 B

The Advent of International Law

1 Precursors of International Law in Pre-Westphalia Era A majority of international law scholars find the origins of international law in the European tradition.190 Some scholars locate its beginnings in Ancient Greece191 or Rome,192 while others trace its roots to medieval Christendom,193 or the Peace of Westphalia.194 Despite multiple accounts of its genesis, the Peace of Westphalia is generally accepted as a starting point of modern 189  On different methods of periodization of international law, see Oliver Diggelmann, The Periodization of the History of International Law in Oxford Handbook of the History of International Law 997–1011 (Bardo Fassbender & Anne Peters eds., Oxford University Press, 2012). 190  Verzijl highlights the distinctively European character of modern international law in his writings. In more specific terms, he states that “now there is one truth that is not open to denial or even to doubt, namely that the actual body of international law, as it stands today, not only is the product of the conscious activity of the European mind, but also has drawn its vital essence from a common source of beliefs, and in both of these aspects it is mainly of Western European origin. John Hendrik Willem Verzijl, International Law in Historical Perspective 435–436 (A.W. Sijthoff, 1968); see also Nussbaum (1954), at 61; see also Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 Eur. J. Int’l L. 113 (2005), Alexander Orakhelashvili, The Idea of European International Law, 17 Eur. J. Int’l L. 315, 315–316 (2006); on the contrary, some scholars argue that the international law did not emerge until the late nineteenth century, since there was no truly universal system of international law involving a wider range of nation states from different continents. They oppose to the Eurocentric understanding of the origin of international law. Onuma Yasuki, When was the law of International Society Born?—An Inquiry of the history of international Law from an Intercivilizational Perspective, 2 J. Hist. Int’l L. 1, 63 (2000). 191  Coleman Phillipson, The International Law and Customs of Ancient Greece and Rome 32 (Macimillian & Co., 1911). 192  Olga V. Butkevych, History of Ancient International Law: Challenges and Prospects, 5 J. Hist. Int’l L. 189, 193 (2003). 193  Verzijl (1968), at 444. 194  Henry Wheaton, History of the Law of Nations in Europe and America: From the Earliest Times to the Treaty of Washington, 1842 69 (Gould, Banks, 1845); Oppenheim (1905), at

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international law. International law became a separate field of study around the end of sixteenth century.195 There is little to be gained in determining a single “father of international law.”196 Dominican theologians from Spain such as Francisco de Vitoria (1480–1546) and Francisco Suarez (1548–1617) represented the Spanish tradition in the development of early law of nations. They, along with Alberico Gentili (1552–1608) and Hugo de Groot (or Grotius) (1538–1645) may all with equal justice be considered as founders of the law of nations. As a general matter, these “founders” were probably less of legal scientists than politicians. The scope and content of their scholarship were highly dependent on the national political contexts of their home countries.197 Examining political and economic transformations as well as religious challenges they witnessed happening around them, they developed legal theories as a means of giving a rational justification for various state activities outside the domestic realm. These early theorists derived rules and principles of international law from theological, philosophical or moral sources. Vitoria and Suarez, for example, continually refer to religious foundations for the law of nations in their writings. Their scholarship had a deep-rooted theological basis, grounded by firm belief in Christian doctrines. By comparison, Grotius asserted the separation of studies of jurisprudence from the scholarly frame of theological disciplines.198 Grotius’s flat rejection of placing Christian theology at the center of studies of the law of nations has an important doctrinal significance.199 While 58; Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective 4 (Transnational Publishers, 1998); Andrew Clapham, Brierly’s Law of Nations 5–6 (Oxford University Press, 7th ed., 2012). 195  Brierly’s Law of Nations (2012), at 23. 196  James Brown Scott, The Spanish Origin of International Law: Francisco De Vitoria and His Law of Nations 139 (Clarendon Press, 1934), Introduction in Onuma Yasuaki (ed.), A Normative Approach to War: Peace, War and Justice in Hugo Grotius 1 (Clarendon Press, 1993), Lesaffer, The Grotian Tradition Revisited: Continuity and Change in the History of International Law, 73 Brit. Y.B. Int’l L. 103, 124 (2002). 197  Richard Tuck, The Rights of War and Peace—Political Thought and the International Order from Grotius to Kant 95 (Oxford University Press, 1999). David Kennedy, Primitive Legal Scholarship, 27 Harv. Int’l L. J. 1 (1986). 198  In this regard, Lauterpacht has pointed out that Grotius secularized the legal disciplines, noting that “no one denies to Grotius the representative quality of pre-eminence.” Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int’l L. 1, 24 (1946); Pound also notes that one of Grotius’ contributions to international legal scholarship is that this prominent scholar of the seventeenth century severed theology from legal studies. Roscoe Pound, Grotius in the Science of Law, 19 Am. J. Int’l L. 685, 686 (1925). 199  As noted by Neff, “for the first time in history, there was a clear conception of a systematic body of law applicable specifically to the relationship between nations.” Stephen C.

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his work was still colored by Christian spirituality, Grotius clearly attempted to make a methodological shift toward a more secular frame for legal scholarship, independent of theological basis.200 The theories of these forerunners of the modern law of nations greatly influenced authors in later centuries. This Section explores four features of pre-Westphalian thinking with important implications for early development of law of nations in the areas of protection of human rights and economic interests. 1.1 Searching for the Foundations of Human Rights To some extent, philosophical speculation and religious beliefs such as Buddhism, Christianity, Confucianism, Hinduism, Islam, and Judaism provided a foundation on which human rights law has been built.201 Almost every major philosophy and religion teaches charity, compassion, and respect for others, and aims to establish responsibilities to help other members of society, especially those in need. In one way or another, they share a common interest in protecting the dignity inherent in every human being; to varying degrees, all address the value of human life and freedom, duties toward vulnerable members of the society and ethical questions of justice. These teachings inevitably consider questions of how superior authority should be exercised and how individual persons should be treated. Nevertheless, the issue of proper treatment of persons as conceived in philosophical and religious lessons is clearly different from the legal rights of individuals. The roots of human rights in a more specifically legal sense can be found in Medieval Europe. The Magna Carta Libertatum (1215) of England is one of the first instruments adopted at the national level, reflecting a growing awareness of protection of individual rights. It was intended to limit the arbitrary exercise of power on the part of the sovereign King of the England, stating: “no freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed [. . .] save by the lawful judgment of his peers or by the law of the land.” Nonetheless, the rights granted by this instrument were limited to specific Neff, A Short History of International Law in International Law 35 (Malcolm D. Evans ed., Oxford University Press, 2006). 200  Nussbaum (1954), at 105–112; Adam Smith once observed “Grotius seems to have been the first who attempted to give the world anything like a regular system of natural jurisprudence and de Jure Belli ac Pacis with all of its imperfections, is perhaps at this day the most complete work on the subject. It was noted at his lectures in 1762 on the subject of moral philosophy and the law of nations. Adam Smith, Lectures on Justice, Police, Revenue and Arms I (Edwin Canaan ed., Clarendon Press, 1896). 201  See generally, Paul Gorden Lauren, The Evolution of International Human Rights: Visions Seen 5–21 (University of Pennsylvania Press, 2003).

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groups of aristocrats and free men: it had little to do with the universal recognition of the human person in general. The primary interest of this instrument is the securing of rights for the ruling class against the King of England, who enjoyed absolute power. 1.2 Discovery of New Continents With the decline of the once-absolute Catholic Church and the Holy Roman Empire, new nations and kingdoms gradually emerged in Europe. Beginning from the late fifteenth century, newly-established states undertook a series of bold expeditions that eventually led to the discovery of new continents. In this “era of discoveries,”202 extensive discussions were made among scholars as to how occupation and colonization of new territories could be justified and what rights original inhabitants were entitled to possess. Spain was among the first to send explorers, with the aim of expanding its colonies to attain new sources of raw materials in order to enrich its treasury. In the background of the Spanish conquest of the American continent during sixteenth century, the works of Vitoria were published, including De Indis Noviter Inventis (On the Indians Lately Discovered) and De Jure Belli Hispanorum in Barbaros (On the Law of War Made by the Spaniards on the Barbarians) in the De Indis et de Jure Belli: Relectiones.203 Compared to other theorists of his generation, Vitoria adopted a more benevolent approach toward the rights of indigenous people and discussed the need for treating them fairly. For this reason, reinterpreting his concerns for original inhabitants in the conquered territories of the Spain, some scholars considered him as “the original philosopher of rights”204 or the humanitarian “friends of Indians.”205 However, the rights of 202  This term was coined in Scott (1934). 203  Vitoria, De Indis et de Jure Belli: Rectiones (1696), as reprinted in The Classics of Inter­ national Law (James Brown Scott ed., Carnegie Washington, 1917). 204  Marcelo Sanchez-Sorondo, Vitoria: The Original Philosopher of Rights in Hispanic Philosophy in the Age of Discovery 59 (Kevin White ed., Catholic University of America Press, 1997); Joseph M. de Torre, The Roots of International Law and the Teachings of Francisco de Vitoria as Foundations for Transcendent Human rights and International Peace, 2 Ave Maria L. Rev. 123 (2004). 205  On these lines, James B. Scott states that “Vitoria recognized that there were peoples in an imperfect state of civilization; but they were human beings, and human beings, to his way of thinking, should not be subject to exploitation, but should be fitted—if they were not already fit—to enjoy the rights of all human beings, as well as to be subjected to their duties. Therefore it was proper—and indeed praiseworthy—for a State in the plenitude of civilization to take, as it were, these children of nature in hand in order to educate them in their rights and in their duties, that their principalities might be admitted to

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indigenous peoples were discussed in the broad context of justifying Spanish authority over newly acquired territories in Americas. In Vitoria’s view, the original inhabitants of the non-Christian world were not of “unsound mind”; he found their social systems to be “orderly arranged.”206 Vitoria concluded however, that the indigenous inhabitants’ way of ordering society was highly deficient because it failed to meet the universal criteria established by natural law, which is applicable to all people.207 This deficiency in the ordering of society necessitated the intervention of Spain. Considering the Spanish as trustees of the uncivilized Indies, he sought to justify Spain’s legitimate “right to travel to the lands of the Indians and to sojourn there, so long as they do no harm.”208 The accompanying violence committed by the Spanish army was considered as inevitable and in the service of Spain’s liberating and humanitarian goals for the sake of the Indies. Along with the mission of evangelization and trusteeship, the Spanish also claimed the right to trade freely with the inhabitants. Although Vitoria and his followers partially disapproved of the ways in which the Spanish carried out their missions in the Indian territories, the fundamental legitimacy of the Spanish regarding its presence as well as justice of its title to the Americas was never questioned.209 1.3 Growing Sovereign Interests in International Commerce Interstate commerce in Europe as well as towards outside world increased significantly. Under the strict state control, it was carried out by various stateowned trading enterprises. To support the sovereign agenda of international commerce, scholars sought to establish a theoretical basis for the state’s exclusive right to trade and to engage in commerce freely. According to Douglas Irwin, a prominent economic historian, the tradition of the right to trade is

the international community. The action, however, of the enlightened nation was not to smack of self-interest, much less exploitation; it was to be on behalf of the laggards in the march of civilization.” Scott (1934), at 287; for a more negative appraisal on Vitoria’s scholarship in this respect, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law 13–31 (Cambridge University Press, 2005). 206  Scott (1917), at 127. 207  Ibid., at 161. 208  Nussbaum (1954), at 150. 209  This type of Western domination through imperial expansion was evident in the nineteenth century as well. Antony Anghie, The Evolution of International Law: Colonial and Post Colonial Realities, 27 Third World Quarterly 739 (2006); see also, Martti Koskenniemi, Empire and International Law: The Real Spanish Contribution, 61 U. Toronto L. J. 1 (2011).

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largely derived from the law of nations during this period.210 He points out that increase in international commerce was a positive advance from a previous era; the medieval scholastic attitude towards international commerce had long been a negative one, as many believed that increased contacts with foreigners and their traditions would disrupt domestic civil life. In the sixteenth century, Spain had accumulated considerable wealth from overseas trade and conquest, gaining enormous power among European nations. It was against this background that Suarez developed his theories on the freedom of trade. He referred to studies on certain right to private property in order to explain the basic rationale of the state’s freedom of trade. In his view, “although private property had been set up by humans for their own utility, breaches of it were subject to punishment under natural law. This equally applied to international trade.”211 While the freedom of commerce was a wellfounded concept as in the jus gentium, state interests in the promotion of free trade can be limited under certain circumstances. According to Suarez, “commercial intercourse shall be free, and it would be a violation of that system of law if such intercourse were prohibited without reasonable cause.”212 This statement is hardly revolutionary from a contemporary perspective, but was a radical assertion at a time when Spain was at the highest peak of the mercantilism at that time. The centrality of commerce was evident in the early development of the law of nations. Sovereign states began to negotiate commercial treaties in order to regulate various aspects of interstate commerce; these instruments became the origin of the treaties on “Friendship, Commerce and Navigation (“FCN”).” These agreements typically contained provisions granting reciprocal rights of navigation and commercial exchange.213 Interestingly, the basic principles of maritime law also emerged in parallel with the development of claims of freedom of trade and commerce; commercial and maritime law developed apace, since the “freedom of navigation upon the high seas and of sojourn within each

210  Douglas Irwin, Against the Tide: An Intellectual History of Free Trade 14–16 (Princeton University Press, 1996). 211  Suarez, On Laws and God the Lawgiver, in Selections from Three Works, Vol. II paras. 13, 16–17, 275–279 (Translated by G. Williams) (Oxford University Press, 1944). 212  Ibid. 213  Todd Weiler, An Historical Analysis of the Function of the Minimum Standard of Treatment in International Investment Law in New Direction in International Economic Law: In Memoriam Thomas Walde 337 (Todd Weiler & Freya Baetens eds., Martinus Nijhoff Publishers, 2011).

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and every country of the international community is requisite for industry and for commerce and for that highest branch of commerce.”214 1.4 Rise of Private Merchants Private merchants and local entrepreneurs became increasingly involved in commercial transactions beyond domestic boundaries. Their increased involvement in interstate commerce stimulated the development of legal rules in order to provide adequate protection and security for their businesses abroad, as international travel often provoked fear of robbery, murder or piracy and enslavement. Having these rules in place was critical, since these merchants were often at risk of being subject to unfair and discriminating treatments in foreign lands. Foreign merchants and their properties were often subject to discriminatory treatment by the local authorities. The notion of protecting aliens’ property rights began to evolve as early as the tenth century.215 At its initial stage of development, the sovereign ruler unilaterally offered a concession or granted certain advantages (e.g. safe passage and toll privileges) to some groups of foreign merchants pursuing economic activities within his kingdom. During the twelfth and thirteenth centuries, Venetian and Genoese merchants were granted an exclusive concession to enter Byzantine Ports without paying duties.216 Increasing cooperation among major commercial cities and merchant groups facilitated the formation of the commercial league and mercantile association around the thirteenth century.217 Later on, sovereign states, relatively equal in power, began to exchange reciprocal guarantees concerning the treatment to be given to private merchants and traders.218 Lillich explains this willingness of states to enter into bilateral commercial treaties in the following words: “protection of aliens by treaty could prove to be mutually satisfactory and, therefore, relatively uncontroversial.”219 For instance, in England, Edward III concluded a treaty of protection and security with the towns of Castile and Biscay in 1351, and with Lisbon and Porto in 1353. It reads, 214  Scott (1934), at 287. 215  Jeswald W. Salacuse, The Law of Investment Treaties 80 (Oxford University Press, 2010). 216  Richard B. Lillich, The Human Rights of Aliens in Contemporary International Law 7 (Manchester University Press, 1984). 217  John Bell Condliffe, The Commerce of Nations 27 (Norton, 1950); Cynthia Postan, Trade and Industry in the Middle Ages in The Cambridge Economic History of Europe Vol. II: Trade and Industry in the Middle Ages 188 (Edward Miller, Cynthia Postan & M.M. Postan eds., Cambridge University Press, 1987). 218  See generally, Esther Pascua, Peace Among Equals (Cambridge University Press, 2008). 219  Lillich (1984), at 19.

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[. . .] shall do each other no harm in their persons, vessels and goods, and that on the contrary they may freely and safely go and come by land and sea in the towns and harbours of one as well as another and in all other kingdoms and countries as they please. The protection given to private merchants was not rights-based, however; an aggrieved individual had to petition his own sovereign when his property interests were endangered in a foreign state.220 1.5 Implications The developments of this era explain many features of the early law of nations. States attempted to regulate emerging concerns such as the rights of indigenous people during the imperial conquest, freedom of commerce, and the protection of private merchants engaging in economic activities in foreign lands. No significant attention was paid to the rights of the human person either at national and international level. The protection of individual rights was primarily discussed in terms of philosophical and religious understanding. On the other hand, the promotion of economic interests through free commerce and trade was a compelling proposition and crucial policy objective. Well before nation-states in modern sense of the term appeared, different regions of the world traded with each other. It became customary to conclude bilateral agreements between relatively equal sovereigns in regulation of interstate commercial activities. The protection of an alien’s right to private property found its origins in this era. Nevertheless, the protection was asserted not as an explicit right held by aggrieved merchants, but granted as an extension of the sovereign’s interests, based on the notion that any encroachment of the private property of merchants was thought to constitute a direct interference with the assets of their sovereigns. 2 The Rise of the Modern Law of Nations The prolonged struggles between Catholic and Protestant monarchs culminated in a destructive war in the early seventeenth century that lasted for thirty years.221 The Peace of Westphalia put an end to the Thirty Years War, involving almost every major nation in Europe: responding to the urgent need to restore post-war peace and order, two treaties were signed at Westphalia

220  Lillich (1984), at 7. 221  It was a figure that was not exceeded until the First World War. Charles Tilly, Coercion, Capital, and European States, AD 990–1990 165 (Basil Blackwell, 1990).

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in 1648—the Treaty of Muenster and the Treaty of Osnabruck.222 These treaties had two primary objectives for European sovereigns during that period: establishing a regime for the exercise of religion according to their own choice between two Christian denominations and determining principles to settle disagreements on territorial delineations among nations.223 The Peace of Westphalia has been celebrated as an inaugural event in the formation of a new legal order based on the secular notion of interstate relations. Interestingly, in the words of Cassese, The Peace of Westphalia testified to the rapid decline of the Church (an institution which had already suffered many blows) and to the de facto disintegration of the Empire. By the same token, it recorded the birth of an international system based on a plurality of independent States, recognizing no superior authority over them.224 As Cassese explains, the spirit of this peace accord put an end to the idea of a unified Christian Europe controlled under the absolute power of the Roman Catholic Church, as well as the idea of a Europe unified under the authority of the Holy Roman Empire. The Peace of Westphalia legitimated the right of the individual state to govern its people as a sovereign power without external interference. The old system, with a “hierarchy, at the pinnacle of which was the Pope and Holy Roman Emperor” was replaced by a new order in which states no longer recognized a superior authority.225 Marking the “transition from empire to sovereignty”226 or the “prelude to modern international law,”227 this Peace agreement marked a constituting moment for the creation of 222  Treaty of Muenster (between the Emperor and the Catholic King of France and its allies) and the Treaty of Osnabruck (between Emperor and the Protestant Queen of Sweden and her allies); for the full text of the treaties, see Clive Parry (ed.), Consolidated Treaty Series, vol. 1 (Oceana Publications, 1969). 223  Kalevi J. Holsti, Peace and War: Armed Conflicts and International Order, 1648–1989 34 (Cambridge University Press, 1991). 224  Antonio Cassese, International Law 23 (Oxford University Press, 2nd ed., 2005). 225  Holsti (1991), at 25; the Catholic Church was opposed to the order established by these treaties. Pope Innocent X stated “the Peace of Westphalia is null, void, invalid, unjust, damnable, reprobate, inane, empty of meaning and effect for all time.” (as quoted in Holsti (1991), at 25). 226  Gerry Simpson, International Law in Diplomatic History in The Cambridge Companion to International Law (James Crawford & Martti Koskenniemi eds., Cambridge University Press, 2012). 227  Grewe (2000), at 7.

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nation-state system, established on the principle of absolute state sovereignty.228 The modern law of nations further developed in the course of the eighteenth and nineteenth centuries; many international law scholars consider these centuries “a formative period” of the classical law of nations.229 This section focuses on four important developments found in the period from the Peace of Westphalia to the time before the outbreak of the First World War. Selecting the First World War as an end point of the analysis is based on common practice of many historians. While the nineteenth century was the time when the fundamental premises of international law that had primarily originated from the Peace of Westphalia were greatly magnified, that century ended in the year of 1914 with the start of the First World War.230 Four developments in this period are noteworthy, giving a foundational context for current research. First, the law of nations was developed in close connection with the repeated and prolonged wars among sovereign states in Western Europe. Second, there was no international and universal recognition of human rights to be found in political or legal discourse. Third, state-building efforts in this era were led by two types of wealth accumulation policies: freer interstate commerce and colonial expansion. Since the days of Vitoria and Grotius, these considerations had been of continuing importance in stimulating development of international legal rules. Lastly, modern international law initially dealt with only a small number of subject matters reflecting state interests, only later expanding to cover other areas of regulation through international conferences. 2.1 The State-centric Perspective of the Law of Nations International law was developed in the context of the rise of the nation-state system, which was Eurocentric in its early inception. Only the European sovereign rulers, mostly hereditary princes, were considered appropriate subjects of the law of nations. Since every state is considered to have equal sovereignty 228  See for example, Wheaton (1845), at 69; Lassa Oppenheim, International Law—A Treatise, Vol. 1, Peace 60 (Longmans, Green, 1905); Richard Falk, The Interplay of Westphalia and Charter Conceptions of International Order in The Future of International Legal Order, vol. I, Trends and Patterns 32 (Richard Falk & C.D. Black eds., Princeton University Press, 1969). 229  Hermann Mosler, International Law as a Legal Community 13 (Sijthoff & Noordhoff, 1980). 230  In the field of history of international law, Lesaffer notes that “law of nations that started to emerge in the 16th century, was elaborated in the decades after 1648 and endured until the end of the First World War.” Lesaffer (2007), at 31.

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and an absolute independence from all others,231 these equal sovereigns only comply with rules to which they have given explicit consent. In this era, Western European sovereigns claiming absolute sovereignty competed against each other to exercise dominant power over the region. These rulers often resorted to warfare in order to settle disputes and disagreements among themselves. Their conflicting interests often erupted in the form of uncontrollable armed conflicts. Interestingly, many of the important moments in the development of modern law of nations followed major wars between these rulers. As David Bederman observes, one can almost linearly chart the progress of new international organizations, new substantive rules of international conduct, and new procedures of dispute settlement between international actors by the dates that mark the end of cataclysmic wars.232 The Peace of Westphalia was one such example; similarly, the Treaty of Utrecht of 1713, was signed in the context of prolonged conflicts over the commercial and political superiority between England, France, Netherlands, and Spain. The Treaty of Utrecht recognized the importance of the balance of power as “the best and most solid basis of mutual friendship and durable harmony.”233 In both cases, European sovereigns sought to create international arrangements for redistributing power and maintaining peace in the aftermath of these wars. The content of the modern law of nations was a direct reflection of the practices of the major powers in their relations with each other. Arguably, the emergence of the modern law of nations was also associated with fears and concerns over a series of savage wars that brought about violent killings and destruction as well as unprecedented poverty, famine and disease. The Congress of Vienna of 1815 was another diplomatic arrangement with the mission to restore the balance of power in Europe after the fall of 231  In the words of Emerich de Vattel, “power or weakness does not in this respect produce any difference. A dwarf is as much as a man as a giant; a small Republic is no less a sovereign state than the most powerful Kingdom.” Emer de Vattel, The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (1797) 68 (Bela Kapossy & Richard Whatmore eds., Liberty Fund, 2008). 232  David J. Bederman, The Spirit of International Law 4 (The University of Georgia Press, 2002). 233  Treaty of Utrecht 1713 as cited in Edward Vose Gulick, Europe’s Classical Balance of Power 35 (Cornell University Press, 1955).

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Napoleon.234 The Napoleonic Wars (1791–1815) destroyed the existing structure of alliances and the balance of power established among European monarchs. Marking the end of this War initially provoked by French military aggression against all of its immediate neighbors, the Final Act concluded at the Congress of Vienna created an institutional mechanism for restraining state aggression and promoting peaceful regulation of interstate conflicts outside the battlefield setting. At the international forum created by the Congress of Vienna, states discussed a range of sensitive matters such as the delimitation of territorial frontiers, the recognition of certain religious practices, and commercial relationships. In their views, international legal arrangements were necessary in order to prevent incidents of extreme violence and hatred and to deal with them when they did occur. Although no permanent institution or multilateral agreement was created in the long run, it became a general practice for sovereign states to cooperate in laying down rules of conduct in order to solve common problems facing them. As in the foregoing examples of international arrangements, states freely negotiated the terms of these treaties and other international arrangements that bind themselves through a meeting of wills. The principles of equal sovereignty and state consent were considered as a clear manifestation of free and independent existence of states without undue external interference. An overwhelming majority of states, officials, and scholars in this era have acknowledged these principles as founding concepts of the law of nations.235 However, the principle of equal and absolute sovereignty was not an accurate reflection of the prevailing reality of that time. The concept of sovereign equality applied only to relations between European powers as well as, later on, the United States.236 On this matter, Anghie highlights in a critical tone that

234  Paul W. Schroeder, The Transformation of European Politics, 1763–1848 vi (Oxford University Press, 1994). 235  Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 Eur. J. Int’l L. 369 (2005). 236  For scholarly examination of the practices of sovereign equality this era, see Henry Wheaton, Elements of International Law (first published in 1836) 14–15 (Stevens and Sons, 5th ed., 1916), Oppenheim (1905), at 10, Elihu Root, The Basic of Protection to Citizens Residing Abroad, 4 Am. J. Int’l L. 517 (1910).

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only the so-called “civilized states”237 enjoyed the fruits of equal s­ overeignty.238 International law in this era, from his perspective, constituted the “rules created by a small group of powerful states that reflect only their interests.”239 Major European states had treated non-European nations from a position of perceived civilizational superiority. The interests of major European rulers had dictated the form and substance of the international order for many centuries, whereas no effective institutional arrangement existed for convening the interests of non-Western states. States other than the group of “civilized” nations were not invited to enjoy the corresponding rights to wage war or make meaningful political decisions affecting their relations with other nations. Most countries in Africa, the Middle East and Asia primarily under colonial rule during the eighteenth and nineteenth centuries were thought to have no viable legal status. These countries were not able to exercise their rights to enter into alliances with effective and equal foreign powers: only the privileged “members of the family” were guaranteed full participation in concluding major international agreements.240 The basic structure of the international legal order founded on this line of thinking remained unchallenged throughout the nineteenth century. 2.2

The Unpopular Notion: Human Rights Protection through International Law The protection of individual rights through international arrangements had been neglected “during the long period of absolute sovereignty of states.”241 In view of longstanding belief in the notion of exclusive sovereignty, every sovereign state possesses unlimited power with respect to governing internal matters, including the treatment of its own nationals in its territory. Domestic 237  James Lorimer distinguished three categories of “humanity”: civilized humanity, barbarous humanity and savage humanity. (Turkey, Persia, China, Siam, and Japan—barbarous humanity). James Lorimer, The Institute of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities Vol. I 102–103 (W. Blackwood and Sons, 1883). 238  On the background of how the term nations civilisees was introduced to the international legal scholarship, see Grewe (2000), at 335: “it first emerged in opposition to the slave trade and replaced Christian notions of community as the uniting spirit of inter­ national law.” 239  See Anghie, (2004). 240  Jenks observes that international law in this period operated from a “family of nations based primarily on Western Christendom.” C. Wilfred Jenks, The Common Law of Mankind 62 (Frederick A. Praeger, 1958). 241  C. Wilfred Jenks, A New World of Law? A Study of the Creative Imagination in International Law 3 (Longmans, 1968).

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human rights protection through international means was not acceptable; creating such a legal arrangement would allow one state to have certain authority to interfere in the sovereign affairs of another state as regards how the latter treated its own citizens. Since the essence of human rights law aims at constraining state power to protect individuals from unlawful state interference, international condemnation of human rights violations committed by the states implies direct interference of the sovereignty to deal with these internal affairs.242 In this connection, Henkin notes that, “historically, how a state treated persons in its territory was indeed its own affair, implicitly in its territorial sovereignty.”243 The concept of human rights in the modern sense was rarely discussed in the domestic realm of Western European states until it was taken up by Enlightenment philosophers. 2.2.1 Early Initiatives The issue of religious freedom and minority protection was heavily discussed even at the inter-state level. Minority protection by way of international legal arrangements finds its origins in the historical persecution of religious minorities, which frequently led to violent warfare in many parts of Europe and prolonged struggles to gain freedom to publicly practice a faith of their choosing. The protection of religious minorities arose as a major concern in the development of early law of nations, particularly in the course of the Reformation movement during sixteenth century.244 Western European states concluded treaties containing rules to protect religious minorities and promote religious freedom. Under the Peace of Westphalia, Catholic and Protestant monarchs made an explicit commitment to honor the right to religious freedom and freer religious practices at both state and individual levels. Sovereign rulers had a right to decide to which denomination their subjects would adhere (ius reformandi). An individual was also allowed to move or was ordered to do so by his territorial sovereign for the enjoyment of religious freedom; “he was at liberty to do it” (ius emigrandi)245 Many scholars celebrated these principles embraced by the Peace of Westphalia as “long-time

242  The “inherent tension” exists between any form of human rights laws and exercise of state sovereignty. Wayne Sandholtz and Kendall W. Stiles, International Norms and Cycles of Change 23 (Oxford University Press, 2009). 243  Louis Henkin, The Age of Rights 14 (Columbia University Press, 1990). 244  Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era 65 (University of California Press, 2004). 245  Treaty of Peace between Sweden and the Empire 228–229, Art. V para. 29.

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precursors of emerging human rights” order.246 In theory, individual right to emigrate to practice a different religion was guaranteed. There was a gradual awareness that an individual can be a rights-bearer with respect to his private religious practice. Many subsequent treaties concluded between European Christian sovereigns contained such provisions: Nijmegen (1678), Rijwijk (1697), Utrecht (1713), Breslau (1742), Dresden (1745), Paris (1763), and Warsaw (1772). These treaties dealt with the status of Catholics in the Protestant territories (and vice versa) with the aim of preventing religious persecutions.247 Protection of religious minorities continued to be a matter of concern in the Congress of Vienna. Nonetheless, the protection granted was not a universal tolerance of religion; only the recognized sects of Christianity such as Lutheranism and Calvinism, were included in this practice. Terms of the individual religious freedom were passive in nature; the individual enjoyment of religious freedom was primarily dependent on the state’s commitment. Provisions contained in the Peace Agreements during this period merely referred to the sovereign responsibilities to provide adequate protections for religious freedom in their territories. The provision of minority protection was included as more of a strategic choice for maintaining peace and security between states; sovereign rulers expected that guaranteeing religious freedom would—to some degree reduce the likelihood of war among them.248 In England, several decades of intense civil wars, revolution and upheavals against the traditional authority led to a number of significant developments in the history of human rights. The Petition of Rights of 1628 establishes the right to be free from arbitrary arrest and imprisonment, asserting the value of individual liberties as well as challenging the absolute authority of the Monarch. In 1679, the Parliament passed the Habeas Corpus Act, giving individuals a right to be brought before a court of law. This Act was adopted to ensure individual autonomy and security against the arbitrary interference of the state in the area of personal and property relations. Subsequently, the Bill of Rights, a landmark legislation in the history of civil and political rights was passed in 1689. The Bill of Rights of 1689 explicitly refers to civil rights issues 246  Janne E. Nijman, Minorities and Majorities in Oxford Handbook of the History of International Law (2012) at 102; see also Dinah Shelton, An Introduction to the History of International Human Rights Law (Lectures given at the International Institute of Human Rights (Strasbourg, France), July 2003, GW Law Faculty Publications & Other Works, Paper 1052, at 5. 247  Nussbaum (1954), at 126. 248  Leo Gross, The Peace of Westphalia 1648–1948, 42 Am. J. Int’l L. 20, 20 (1948).

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including rights to life, property, equal protection under law, trial by jury, religious freedom, and freedom of speech. This, however, was more of a constitutional settlement relating to power struggles between British Parliament and the Stuart Kings than a document guaranteeing the protection of fundamental rights in the modern democratic society. 2.2.2

The Enlightenment Project: Philosophical and Political Discourse on Human Rights There was a growing acceptance that every individual has natural rights that cannot be simply dismissed by the divine power of the kings and emperors. Modern human rights notions began to flourish in the writings of leading Enlightenment thinkers such as Locke, Rousseau, Montesquieu and Voltaire in the course of seventeenth and eighteenth centuries. The Enlightenment philosophers proposed many ideas relating to the basic rights of individuals that found expression or were incorporated in the basic human rights instruments proclaimed in the subsequent decades. Indeed, as Roscoe Pound observes, “in the seventeenth and eighteenth centuries all juridic activity presupposes philosophy.”249 The writings of Locke were particularly influential. In the Second Treatise of Government (1690), one of the most influential political treatises, he asserted, Every individual person in the state of nature possesses certain natural rights prior to the existence of any organized government. People are born in a state of perfect equality and enjoy all rights equally.250 In this way, every person possesses certain natural rights prior to the existence of any organized societies. Locke further observed that men were “by nature all free, equal, and independent.” Interestingly, the natural rights and freedom of men cannot according to Locke, be “isolated from the material conditions”. Consequently, the right to private property and the exercise of this right without unlawful interference were considered a natural consequence of political claims based on individual rights.251 He not only examined the ways in which men possess their rights but also outlined the ways in which 249  Roscoe Pound, Philosophical Theory and International Law, Lecture delivered in the University of Leiden in Bibliotheca Visseriana Dissertationvm ivs Internationale Illvstrantivm 73 (Lvgdvni Batavorvm Apvd E.J. Brill, 1923). 250  John Locke, Second Treatise of Government (1690). 251  His notion of property included not only private estates of individuals but also extended to life and civil liberty.

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their rights can be exercised and defended. To protect these rights possessed by all men, the power of the state needs to be legitimately exercised. From his perspective, the government’s authority was established on the basis of social contract rather than divine rules: he found that the power to govern is derived from the consent of the governed to some extent. Locke located the ultimate political authority in individual. The legacy of Locke’s theories on individual liberty and human freedom inspired many leading intellectuals of the eighteenth century. The development of a human rights conception was also influenced by “the general aspiration toward bringing peace and order to the world.”252 The liberal idea of emancipating individuals from unfair oppression by the medieval authority crossed the Atlantic Ocean and continued to prosper in Europe in late eighteenth centuries; the spread of liberal tradition made essential contributions to the development of basic human rights theories and practices.253 In 1776, the Virginia Declaration of Rights asserted that “all men are by nature equally free and independent, and have certain inherent rights.” The Declaration of Independence of the United States (1776) and the French Declaration of the Rights of Man and of the Citizen (1789) equally recognized the universality of human rights and importance of fundamental freedoms of human persons. The Bill of Rights of the United States (1791) prescribed basic protections of life, liberty and personal security of individuals. These declarations share a common feature, insofar as each of these documents explicitly takes up the issue of how government should be structured in order to secure natural and inalienable rights. They played a transformative role in the history of the promulgation of the national Constitution in many parts of the world. In this era, the “age of democratic revolution” against the authoritative rule of sovereigns,254 rights discourse was no longer at the periphery of western political culture. Despite the ambitious human rights declarations proclaiming dignity and rights inherent in every human being, the claims being asserted in them were not fully guaranteed by specific legal rules. Domestic legal arrangements were still not effective enough to reflect these revolutionary ideas in 252  Kenneth Minogue, The History of the Ideas of Human Rights in the Human Rights Reader 11 (Walter Laqueur and Barry Rubin eds., Meridan, 1977). 253  See for example, “we owe to the English, American and French Revolutions a series of fundamental concepts—including freedom of thought, conscience and religion, freedom of speech, of meeting and of association, freedom from arbitrary arrest, detention or exile, fair trial, the presumption of innocence until proof of guilt, due process, and equality before the law.” Jenks (1958), at 164. 254  Eric Hobsbawm, The Age of Revolution: 1789–1948 (Vintage Books, 1996).

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actual legal practices. Moreover, the liberal concept of natural and inalienable rights did not have any substantial importance for the people in colonial empires: rights protections remained an exclusively domestic concern. 2.2.3 Human Rights as an International Matter of Concern? Human rights discourse had long been an unpopular topic in international law; states did not endorse the idea that governments had binding international human rights obligations to their own citizens. In the nineteenth century, however, international attention to human rights issues began to emerge, particularly in the areas of the treatment of aliens, slave trade and international humanitarian law.255 2.2.3.1

Diplomatic Protection and the Treatment of Foreign Merchants

2.2.3.2

The Prohibition of International Slave Trade

Rules of diplomatic protection had several implications for the internationalization of human rights. This area of law was established for the protection of the life and liberty of foreign merchants and their properties abroad. The home state of the aggrieved foreign merchants is entitled to exercise diplomatic protection on behalf of its nationals against the State encroaching life and property of these merchants. Individuals were not entitled to pursue their claims independently; they were protected only insofar as they were aggrieved nationals of the state. The protection offered to the individuals cannot be regarded as human rights in a modern sense because exercise of this right depended exclusively on the home state’s own initiation. In fact, the property of the citizen in foreign territories formed part of the aggregate wealth of their nation.256 Here, the state is actually defending its own national wealth by exercising protective measures for its people and their property. The national and international movement to abolish the slave trade was one of the nineteenth century’s central moral causes that became the foundation of the human rights movement that we witness today.257 Many countries began to pass legislations to punish prevalent practices of the slave trade within their 255  See generally, Louis Sohn, The New International Law: Protection of the rights of individuals rather than States, 32 Am. U. Int’l L. Rev. 1, 2–9 (1982). 256  Hans Neufeld, The International Protection of Private Creditors form the Treaties of Westphalia to the Congress of Vienna (1648–1815): A Contribution to the History of the Law of Nations 95 (A.W. Sijthoff, 1971). 257  See generally, Jenny Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford University Press, 2011).

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jurisdictions. These efforts, originating in the domestic realm, led to international attention for abolishing infamous slave trade. The issue was repeatedly discussed in major European Congresses during the nineteenth century: the Congress of Vienna, of Paris, of Berlin, and of Brussels. The Declaration on the Abolition of the Slave Trade was adopted in 1815. It was the first international instrument restricting the terms of trade for a reason profoundly rooted in the concept of human dignity. Although the international pledge of abolishing the slave trade found clear expression in the Declaration, such practices were not eliminated. The 1885 multilateral conference held in Berlin adopted the General Act containing another international commitment to prohibit slave trade. The General Act encouraged participating nations “to help in suppressing slavery, and especially the slave trade.” Article 9 reads as follows: Seeing that trading in slaves is forbidden in conformity with the principles of international law as recognized by the Signatory Powers, and seeing also that the operations, which, by sea or land, furnish slaves to trade, ought likewise to be regarded as forbidden, the Powers which do or shall exercise sovereign rights or influence in the territories forming the Conventional basin of the Congo declare that these territories may not serve as a market or means of transit for the trade in slaves, of whatever race they may be. Each of the Powers binds itself to employ all the means at its disposal for putting an end to this trade and for punishing those who engage in it. Five years after the adoption of the General Act, the conference was held in Brussels in 1890, concluding the Anti-Slavery Act that was ratified by 18 States. Many countries included provisions restricting slave trade when concluding bilateral treaties with other trading nations. In these attempts to abolish the slave trade, civil society involvements were also noteworthy; the issue of slave trade was one of the first to stimulate the active civil society engagement in international policymaking.258 In the course of late eighteenth and nineteenth centuries, nongovernmental associations such as the Pennsylvania Society for Promoting the Abolition of Slavery, the Society for Effecting the Abolition of Slave Trade, and the Societe des Amis des Noirs promoted their policy agenda to fight for the abolition of international slave trade. These “issue-oriented NGOs” actively engaged in human rights advocacy in a concerted fashion.

258  Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Mich. J. Int’l L. 183, 189–121 (2003).

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2.2.3.3

Life and Security of Individuals in the International Humanitarian Law

While numerous legal scholars devoted large sections to the laws of war in their academic works, they rarely considered the issue of protecting victims and other casualties in the battlefields. Friedrich F. Martens, a prominent lawyer and diplomat of the nineteenth century, called for a change in this reluctant attitude. His assertion became highly influential in the drafting of the Convention on the Laws and Customs of land warfare adopted during the 1899 Hague Conference. At first in the Conference, a majority of delegates were not enthusiastic about the idea of creating rules concerning the protection of persons affected by military conflicts.259 The so-called “Martens Clause” originally proposed by Martens found expressions in the Preamble of the 1899 Convention: Until a more complete code of the laws of war can be drawn up, the High Contracting Parties deem it expedient to declare that, in cases not covered by the rules adopted by them, the inhabitants and belligerents remain under the protection and governance of the principles of the law of nations, derived from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.260 According to this clause, legal protection of persons in the battlefield finds its basis in the principles of international law recognized by “civilized” states: “laws of humanity” and the “dictates of public conscience.” With the adoption of this 1899 Convention, the protection of human dignity was explicitly recognized as an explicit objective of the international legal arrangement for the first time.261 The Convention prescribed the right of the wounded to receive adequate medical treatment, of war prisoners to be given specific protection under the law and of individuals to be considered inviolable when surrendering. International rules concerning the protection of individuals during warfare were further elaborated during the Second Hague Peace Conference took place in 1907. The two Hague Conferences showed that the states had begun

259  Jackson Nyamuya Maogoto, War Crimes and Realpolitik 25 (Lynne Rienner, 2004). 260  V.V. Pustogarov, Our Martens: F.F. Martens, International Lawyer and Architect of Peace (W.E. Butler translation, 2000); Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land. 261  Bederman (2002), at 121.

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to see the value of serving the interests of humanity, even in military conflict situations. 2.2.3.4

Other Human Rights Issues Discussed in International Forum

A series of Constitutions adopted in the course of nineteenth century opened up a new dimension for human rights discourse; national constitutional development was closely associated with the development of international human rights protection.262 International attention to human rights extended to the protection of specific populations: the rights of women, workers and racial minorities gradually attracted greater interests from legal academia and practice.263 For instance, in the area of women’s rights, multilateral organizations such as the International Council of Women,264 the International Woman Suffrage Alliance,265 and Women’s International League for Peace and Freedom266 were established to promote women’s rights worldwide. The rights of workers and other minority groups were addressed by the International Labor Organization (“ILO”) and the League of Nations. Labor unions strongly insisted upon the adoption of laws granting workers basic rights such as minimum work standards and the prohibition of child labor. 2.3

State-building Efforts and the Early Development of International Economic Regulation The promotion of interstate trade and investment was a paramount objective in early nation-building efforts. As compared to the preceding period, commercial motives came to prevail over religious motives in terms of domestic policy-making.267 The colonial expansion was another important strategy in 262  Sandholtz & Stiles (2009), at 22. 263  Attempts to address different kinds of human rights problems (such as the brutal exploitation of the working class that arose during the Industrial Revolution) produced mixed results. Poverty, starvation, and epidemic diseases were on the rise. In response to problems resulting from social injustice, many reform movements arose, what extended initially only to national level but later extended to international fora. 264  Established in 1888 (for more information http://www.icw-cif.com/about-us/history). 265  Established in 1904 (now the International Alliance of Women, http://womenalliance .org/what-is-iaw). 266  Established in 1915 (for more information http://www.wilpfinternational.org/about-us/ history/). 267  Herbert Heaton, a renowned economic historian asserts that “religious factor became less potent” in this era. Herbert Heaton, Economic History of Europe 225 (Harper & Brothers, 1948); the wars and conflicts in the second half of the seventeenth century had

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the early state-building process. This policy was promoted under the imperial agendas of the major European nations. The origins of the contemporary IEL are deeply rooted in the context of the growth of European trading and investment activities during this period. 2.3.1

2.3.1.1

Trade and Investment

Economic Liberalism and the International Commerce

Initially, the dominant economic paradigm underlying state-building efforts in this era was mercantilism.268 From the perspective of Mercantilists, national wealth is equal to the quantity of gold held by the state. States aggressively pursue exports, while simultaneously applying a variety of restrictive regulations on imports in order to increase the supply of gold. In furtherance of the national interest, Mercantilism advocated the extensive state control of any economic activity. While private enterprises were allowed to pursue transnational commercial activities, they were operated under the privileges granted by a particular sovereign. The private entrepreneurial gains from trade were considered to be integral to the calculation of the national wealth, since, from the mercantilist perspective, the wealth of the nation as a whole was calculated in aggregate terms. Around the late seventeenth century, there was a growing dissatisfaction on the part of merchants against mercantilist policy.269 There was a growing dissatisfaction on the part of these merchants who aspired to be free from strict governmental control in trading businesses. A number of Enlightenment scholars observed that the trade and commerce were critical peacekeeping tools of protecting states from both the internal and external threats. Montesquieu highlighted the essential role of commerce in pursuing peace. In his seminal book, “The Sprit of Laws” (1750) he noted,

“an economic prelude.” Ernest Barker, George Clark, Paul Vaucher (eds.), The European Inheritance Vol. II 137 (Oxford University Press, 1956). 268  See generally, Lars Magnusson, Mercantilism: The Shaping of an Economic Language (Routledge, 1994). 269  Douglas Irwin notes that critics of mercantilism multiplied in France as well as in England during this period. He quoted discontented merchant’s report in 1686. It reads;   “Trade can flourish and subsist only when merchants are free to procure the merchandise they need in the places where they are [sold] at the lowest price, and every time we wish to compel them to buy in one place at the exclusion of all others, merchandise will become more expensive and trade will consequently fall into ruin.”   There were a growing number of public statements and scholarly writings in favor of complete liberty in trade during this time. Irwin (1996) at 64; for more examination of this period, see generally id. at 65–74.

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The natural effect of commerce is to lead to peace. Two nations that trade with each other become reciprocally dependent; if one has an interest in buying, the other has an interest in selling, and all unions are founded on mutual needs.270 Similarly, Kant wrote the following in “Perpetual Peace: A Philosophical Sketch” (1795): The spirit of commerce sooner or later takes hold of every people, and it cannot exist side by side with war. And of all the powers (or means) at the disposal of the power of the state, financial power can probably be relied on most. Thus states find themselves compelled to promote the noble cause of peace, though not exactly from motives of morality.271 In their views, interstate commerce facilitates peaceful relations between different nations. The increase in international trade and commerce were conceived as a means of preventing and ending wars. In the progression of the Enlightenment movement, a liberal economic theory of international trade and commerce arose, slowly replacing the mercantilist perspective.272 From the perspective of liberal economic theory, the unregulated market would, at its best, increase the productivity; these scholars envisioned a different idea regarding the proper relationship between the State and the market. They were also opposed to imposing restrictions on trade between States. British philosophers such as John Locke, Adam Smith and Jeremy Bentham were the progenitors of this line of thought. While the economic analysis of the value of liberalized trade may predate the times of Adam Smith and David Ricardo, their contributions were particularly influential in establishing a solid theoretical basis for a free trade policy. In the Wealth of Nations (1776), Smith claimed that it was not a highly controlled mercantile system, but rather a free market consisting of self-interested and rational economic actors, that would best increase the overall national

270  Montesquieu, The Sprit of the Laws (1750) 338 (Anne M. Cohler, Basia C. Miller & Harold S. Stone eds., Cambridge University Press, 1989). 271  Hans Reiss (ed.), Kant’s Political Writings 114 (Cambridge University Press, 1991). 272  Charles P. Kindleberger, The Rise of Free Trade in Western Europe in International Political Economy: Perspectives on Global Power and Wealth 73–76 (Jeffry A. Friedman & David A. Lake eds., Routledge, 1995).

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welfare: free markets yield the greatest productivity.273 In his view, state governments should intervene in the market only in the cases of severe market failures, because national wealth is best achieved through an unregulated market: the optimal role of governments and institutions is to ensure the smooth operation of markets. Smith laid the foundation for the introduction of laissezfaire capitalism in the coming decades. With respect to the matter of interstate trade and commerce, he first considered these as essentially self-interested actions. He claimed that specialization would increase gains from exchange of goods between states: “[i]f a foreign country can supply us with a commodity cheaper than we can make, better buy it of them with some part of the produce of our own industry.” Advocating interstate cooperation in trade and commerce, he argued for the removal of certain economic barriers.274 In early nineteenth century, another English economist, David Ricardo played a crucial role in addressing questions not fully explained by Smith’s theory, while still agreeing that the specialization and exchange of goods would maximize the welfare of nations participating in transnational trade. His theory of comparative advantage is essential for understanding why and how nations export and import particular goods.275 According to Ricardo, when each country specializes in the production and export of goods with the greatest comparative advantage on its side, all countries engaged in this international exchange are ultimately better off in terms of efficiency and quality, because each country exports the goods it can produce at the lowest cost and most efficiently. National specialization in the most competitively produced goods would reduce production costs, increase the quality of the goods exchanged, and in the end, enrich all participating states. Hence, in his view,

273  From his perspective, self-interest is thought to be the main driving force behind any human actions. 274  Richard Price, another eighteenth-century philosopher, also argued for the beneficial aspect of interstate economic activities, yet from a different angle:  “Foreign trade has, in some respects, the most useful tendency. By creating an intercourse between distant kingdoms it extends benevolence, removes local prejudices, leads every man to consider himself more as a citizen of the world than of any particular state, and, consequently, checks the excesses of that love of country which has been applauded as one of the noblest, but which, really, is one of the most destructive principles in human nature.”   Richard Price, Political Writings in Cambridge Texts in the History of Political Thought 146 (David Oswald Thomas ed., Cambridge University Press, 1992). 275  Alan O. Sykes, Comparative Advantage and the Normative Economics of International Trade Policy, 1 J. Int’l Eco. L. 49 (1998).

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Under a system of perfectly free commerce, each country naturally devotes its capital and labour to such employments as are most beneficial to each it is this principle which determines that wine shall be made in France and Portugal, that corn shall be grown in America and Poland, and that hardware and other goods shall be manufactured in England.276 The basic ideas of emerging economic liberalism centered on the benefits of free trade and the recognition of the individual property rights. In the nineteenth century, this line of liberal economic thought spread to countries in Europe outside British territory. The development of transportation and communication technology, such as railroads and the telegraph, changed the existing patterns of social and economic growth. Increased productivity in many countries accelerated the growth in interstate commerce. Meanwhile, the early theoretical origin of international investment law was found in relation to the liberal economic ideology developed in nineteenth century.277 2.3.1.2 (i)

The Emergence of International Legal/Non-Legal Arrangements in the Field of Trade and Investment Regulation Inter-State Commercial Exchange

As international trade and commerce played an increasingly critical role in the accumulation of national wealth, the proper regulation of trade and commerce became one of the most heavily discussed topics in the development of modern law of nations.278 In the late eighteenth century, Georg-Friedrich von Martens made a similar observation: [t]he influence of foreign commerce on the well-being of citizens, on the wealth, consideration and power of the state makes it one of the most important objects of the law of nations . . . commerce between the States of Europe is nowadays free in peace time in such a way that except for the right of reprisal, no nation is excluded from trade with others; and that trade treaties are not needed to ensure enjoyment of it.279 276  David Ricardo, On the Principles of Political Economy and Taxation in The Works and Correspondence of David Ricardo, Vol. i, 133–134 (Piero Sraffa ed., Cambridge University Press, 1951). 277  Kenneth J. Vandevelde, Sustainable Liberalism and the International Investment Regime, 19 Mich. J. Int’l L. 373, 395 (1998). 278  Weiler (2011), at 342. 279  Georg-Friedrich von Martens, précis du droit des gens modern de l’Europe, Vol. 1, Book III, Ch. IV 310, 314–315 (1789), as quoted in Emmanuelle Jouannet and Christopher Sutcliffe,

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Economic liberalism, as expressed in the works of major Enlightenment thinkers, had a clear influence in the development of legal arrangements concerning international trade. Apart from theoretical developments in this regard, however, a majority of European states maintained protectionist commercial policies, such as the imposition of customs duties and the creation of monopolies in certain sectors for their advantage.280 Although Britain was a strong advocate of free trade at the height of its industrial power which triggered a general movement toward free trade in Europe,281 in a majority of European countries, free trade was perceived as an exceptional policy choice rather than the established principle. A growing interest in transnational economic activities inevitably gave rise to the conclusion of commercial treaties designed to promote and protect state interests in trade. One commentator considers the rise of commercial treaties during this period as the “liberal economic dimension of the law of nations.”282 Starting from the seventeenth century, Western European states began to conclude reciprocal treaties under the name of “Treaty of Friendship and Commerce” or “Treaty of Friendship, Commerce and Establishment” in order to establish friendly political and economic relations between states.283 The conclusion of this type of commercial treaty gradually became a common practice among these states.284 These so-called fcn treaties covered a wide range of topics including admission to trade and industry, exchange of privileges of access to ports, right of safe passage and navigation, protection from discriminatory treatment in taxation and guarantee of access to domestic courts. These international agreements typically contained the Most Favored Nation principle (“MFN”), which would later become a foundational concept in the development of the multilateral The Liberal-Welfarist Law of Nations: A History of International Law 51 (Cambridge University Press, 2012). 280  Alexis Keller, Debating Cooperation in Europe from Grotius to Adam Smith in International Cooperation: The Extents and Limits of Multilateralism 37 (I. William Zartman & Saadia Touval eds., Cambridge University Press, 2010). 281  This could be a rational choice for the Britain as the dominant economic power in the world at that time. 282  Jouannet finds the liberal origins of the freedom of commerce of states in the individual right to enter into contracts, the centerpiece of the economic liberalism in the Enlightenment era. Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (Cambridge University Press, 2012). 283  Nussbaum (1954) at 204; see generally, Dieter Blumenwitz, Treaties of Friendship, Commerce and Navigation in Encyclopedia of Public International Law iv 954–955 (Rudolf Bernhardt ed., North-Holland Publishing, 2000). 284  Neff (2006), at 368.

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free trade regimes. The underlying rationale of the MFN principle was to create equal conditions for nations competing with each other in their trade relations. The use of MFN or its equivalent is considered to have had its origins in the Treaty of Nijmwegen of 1679 concluded between Sweden and Holland. Early FCNs were primarily concerned with trade and commerce, whereas the protection of aliens and their properties abroad found expression in a relatively limited way.285 The trend of concluding commercial treaties slowed at the onset of Napoleonic Wars and in its aftermath. The golden age of free trade later reemerged in the nineteenth century under the hegemonic power possessed by the Britain.286 Britain took on a leading role in negotiating commercial treaties containing provisions in promotion of free trade. In 1846, the first major breakthrough occurred when the British parliament repealed the “Corn Laws”,287 a longstanding legislation that strongly protected British landlords in agricultural sector. The repeal of the Corn Laws was widely recognized as a triumph of free trade; extremely protective duties on foreign corn were ultimately abolished. Although this repeal was a unilateral decision favoring trade liberalization, rather than a reciprocally negotiated outcome, it was a major step away from the protectionist policies of the past. While this policy change was praised as enhancing the overall welfare of the nation, some critics took a rather cautious approach to analyzing the benefits of freer trade.288 285  Nevertheless, the FCNs influenced the design of modern investment treaty. Some of the core investment protection standards such as “fair and equitable treatment” were initially coined by the early FCNs. Frederick A. Mann, British Treaties for the Promotion and Protection of Investments, 52 Brit. Y.B. Int’l L. 241, 241 (1981); for more recent studies on the continuing relevance of the traditional FCNs for contemporary international investment law, see John F. Coyle, The Treaty of Friendship, Commerce and Navigation in the Modern Era, 51 Colum. J. Transnat’l L. 302, 302 (2013); O. Thomas Johnson Jr. & Jonathan Gimblett, From Gunboats to BITs: The Evolution of Modern International Investment Law, Yearbook on International Investment Law & Policy 2010–2011 649 (Oxford University Press, 2012); Kenneth J. Vandevelde, Bilateral Investment Treaties: History, Policy, and Interpretation 19–24 (Oxford University Press, 2010). 286  See generally, Timothy J. McKeown, The Politics of Corn Law Repeal and Theories of Commercial Policy in The Rise of Free Trade Vol. 4 57 (Cheryl Schonhardt-Bailey ed., Routedge, 1997); Douglas A. Irwin, Political Economy and Peel’s Repeal of the Corn Laws in The Rise of Free Trade Vol. 4 (Cheryl Schonhardt-Bailey ed., Routledge, 1997). 287  See ibid.; the Corn Laws was enacted to protect local agricultural production. 288  Interestingly, Karl Marx highlighed the “destructive” features of free trade. On the Question of Free Trade, Speech Delivered by Karl Marx before the Democratic Association of Brussels, Jan. 9, 1848 in Karl Marx, The Poverty of Philosophy 111 (Digireads.com, 2012) (originally published in 1847).

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Within a decade, Britain created several commercial treaties with other states.289 By concluding Cobden-Chevalier Treaty of 1860, British and French governments agreed to align their laws in imposing interstate tariffs within their borders. This agreement offered a basis for strengthening their relations. Yet in fact, the French had to agree to the terms of this Treaty due to the overriding political concerns.290 Although it contained a modern mfn clause, it was only a discriminatory liberalization, as France conceded more than Britain.291 In any case, the Cobden-Chevelier Treaty ushered in the British-led free trade regime of the nineteenth century, marking a watershed moment in the development of modern international treaty agreements on trade and commerce.292 The legacy of Cobden-Chevalier Treaty prompted trade liberalization in Europe, leading to the conclusion of commercial treaties among other States. A number of contemporaneous scholars observed that the conclusion of commercial treaties was an effective means not only of liberalizing trade but also of achieving prosperous domestic economy. As Twiss observes, [. . .] foreign commerce thus sprang up, and in many States, where foreign commerce became an engine of State government, duties or tolls came to be imposed upon foreign merchants frequenting the ports of a State. Treaties of Navigation and of Commerce thereupon came to be agreed upon between Nations, whereby its was provided that the subjects of one power might safely trade in the ports of the other Power on condition of paying customary tools, or of paying a fixed toll [. . .]293 Under these commercial treaties, many European states undertook major tariff reduction. Economic liberalism seemed to be at the center of international relations: it was one of the most important factors behind the spread of free trade policy throughout Europe particularly in the period of 1860 to 1880.294

289  Shepard B. Clough & Charles W. Cole, Economic History of Europe 469 (Heath & Co., 1947). 290  Arthur Stein, The Hegemon’s Dilemma: Great Britain, the United States, and International Economic Order, 38 Int’l Org. 355, 364–366 (1984). 291  Along these lines, “[t]he 1860 treaty was quite asymmetrical, which is not surprising given how little Britain had left to barter away.” Ibid., at 426. 292  Gilbert R. Winham, The Evolution of International Trade Agreements 18 (University of Toronto Press, 1992). 293  Twiss (1884), at 336. 294  Charles Kindleberger, The Rise of Free Trade in Western Europe, 1820–1875, 35 J. of Econ. Hist. 20 (1975).

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However, a contradictory trend of protectionism was also found in the course of nineteenth century. Many states continued to rely on customs duties as a major source of revenue. In the late nineteenth century, states reinstituted a range of trade barriers on imported products through domestic legislation. The u.s. had long been a high-tariff nation (except for the period between 1857 and 1861).295 Policies with a similar tendency prevailed in many countries in Western Europe. During the last decade of the nineteenth century in particular, a number of European states, including Austria, Italy, Germany, and France, had high tariff policies. Surveying the world economy in 1889, one commentator observed that since 1873, it had been marked by “unprecedented disturbance and depression of trade.”296 Despite the rise of economic liberalism and the theoretical recognition of gains from freer trade, states held on to protective tariffs as before. These tendencies hindered construction of a more liberal international economic order in many parts of Europe. (ii)

Protecting Aliens and their Properties Abroad

Western European states and the u.s. began to produce significantly larger capital surpluses fueling foreign investments. Foreign merchants faced a range of difficulties in engaging in international trade and commerce at that time. On these lines, Ricardo observed in the early nineteenth century, Experience, however, shows that the fancied or real insecurity of capital, when not under the immediate control of its owner, together with the natural disinclination which every man has to quit the country of his birth and connections, and intrust himself, with all his habits fixed, to a strange government and new laws, check the emigration of capital. These feelings, which I should be sorry to see weakened, induce most men of property to be satisfied with a low rate of profits in their own country, rather than seek a more advantageous employment for their wealth in foreign nations.297 Ricardo correctly explained that it was a natural reaction for businessmen to be apprehensive with respect to international commercial activities, since they lacked familiarity with the varying rules and practices in foreign States, and had often been subject to discriminatory treatment. Alien merchants who acquired certain legal interests in foreign territory were required to submit to 295  Paul Johnson, Modern Times 232 (Harper Perennial, 2001). 296  David Ames Wells, Recent Economic Changes 1–2 (D. Appleton, 1889). 297  David Ricardo, The Principles of Political Economy and Taxation 83 (Dent/Dutton, 1974).

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the jurisdiction of local municipal law under the sovereignty of that host State. There was also often severe difficulty in traveling and communicating over far distances. Against this background, a concern emerged in international economic relations was how to provide adequate protection for private merchants, commercial travelers and their properties abroad. Historically, there were few options for foreign investors to redress host state conducts that adversely affected their investments abroad. Western European countries and the U.S. sought to develop various legal and non-legal strategies to protect aliens and foreign-owned properties. States held the view that home states of the aggrieved foreign merchants could be able to seek proper compensation for the damage incurred. Not only diplomatic and legal means but also forceful means were employed to this end. The modern law of nations with respect to the proper treatment of aliens and their properties abroad was developed along with these State practices particularly in the late eighteenth and nineteenth centuries.

•

Diplomatic Protection

One of the prevailing methods of providing security of aliens and their properties was to exercise diplomatic protection, a well-recognized principle in the law of nations.298 Diplomatic measures were widely accepted as the appropriate way to resolve various sources of disagreements between states. Acting on behalf of the rights of the individual merchant, a state acts in its own interests in exercising diplomatic protection because “an injury to a member is an injury to his entire clan.”299 Vattel was one of the earlier legal scholars to explore the dynamics of alien protection explicitly. He observed in 1758: Anyone who mistreats a citizen directly offends the State. The sovereign of that State must avenge its injury, and if it can, force the aggressor to

298  In this regard, the then U.S. Secretary of State John Adams observed in 1796: “there is no principle of the law of nations more firmly established than that which entitles the property of strangers within the jurisdiction of another country in friendship with their own to the protection of its sovereign by all efforts in his power. This common rule of intercourse between all civilized nations has, between the United States and Spain, the further and solemn sanction of an express stipulation by treaty.” This is quoted by Rudolf Dolzer, New Foundations of the Law of Expropriation of Alien Property, 75 Am. J. Int’l L. 553 (1981). 299  Edwin Borchard, Protection of Citizens Abroad and Change of Original Nationality, 43 Yale L.J. 359, 361 (1934).

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make full reparation or punish him, since otherwise the citizen would simply not obtain the goal of civil association, namely security.300 Vattel clearly took note of the right of the sovereign state to protect its nationals. Under the mechanism offered by the diplomatic protection, the aggrieved merchants and entrepreneurs engaging in commercial activities abroad must petition their sovereigns when their lives or property interests are at stake. The whole process was exclusively dependent on their home states’ decisions. Clearly, diplomatic protection alone was insufficient to provide full security and predictability for the rights of foreign merchants and investors. There was a pressing need to establish a legal, rather than diplomatic, approach to protecting these stakeholders and their properties abroad.

•

Legal Protection under the Commercial Treaties Concluded between Major States

Within the circle of European states and U.S., the reciprocal commercial treaty was a primary method of providing protection and security of the alien and their properties abroad.301 It became increasingly common to include provisions providing adequate protection for foreign-owned property in the commercial treaties. The modern legal principles of MFN and the National Treatment first appeared in this connection as well.302 Since the late eighteenth century, the U.S. had consistently included treaty provisions that provide “full and perfect protection” for aliens.303 By the mid nineteenth century, the U.S. treaty contained more concrete terms of protection, such as the reciprocal guarantee of the right of foreign corporations to appear before each ­other’s courts.304 The commercial treaty practice in Europe was developed in line with the U.S. experience; similar language was found in a series of commercial treaties 300  This statement of Vattel is quoted in Zachary Douglas, The Hybrid Foundations of Investment Treaty Arbitration, 74 Brit. Y.B. Int’l L. 151, 165 (2003); Vattel similarly wrote that “whoever uses a citizen ill, indirectly offends the State, which is bound to protect this citizen.” as quoted in Johnson Jr. & Gimblett (2012), at 649. 301  Lillich (1984), at 19. 302  Andreas Hans Roth, The Minimum Standard of International Law Applied to Aliens (A.W. Sijthoff, 1949). 303  William Marion Gibson, Aliens and the Law 27 (University of North Carolina Press, 1940); for U.S. practice regarding the protection and security of us citizens and their properties abroad, see Robert Renbert Wilson, Property-Protection Provisions in United States Commercial Treaties 45 Am. J. Int’l L. 83, 96–98 (1951); for more recent analysis, Kenneth J. Vandevelde, US International Investment Agreements 20 (Oxford University Press, 2009). 304  For instance, the Commercial Agreement concluded between U.S. and Russia in 1868.

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between France, the Netherlands, Prussia, Spain, Sweden, and the U.K. in the same period.305 Some Latin American countries were also involved in this line of treaty practices. The U.S. sought to include treaty provisions concerning foreign property protection in its relationship with the Latin American region. For instance, the U.S. and Chile concluded a treaty specifying that the rights of American citizens shall be protected to the full extent of Chilean law.306 The Treaty of Amity, Commerce, Navigation and Extradition concluded between U.S. and Venezuela provides that citizens of either country could “enter, sojourn, settle and reside” in any territory of the other.307 Article III further notes, While they conform to the laws and regulations in force, they shall be at liberty to manage themselves their own business, subject to the jurisdiction of either party, [. . .] They shall have free access to the tribunals of justice, in cases to which they may be a party, on the same terms which are granted by the laws and usage of the country to native citizens for which purpose they may employ in defence of their interests and rights such advocates, attorneys, and other agents as they may think proper. According to this provision, while the foreign merchants are subject to domestic laws and statutes, they enjoy certain rights to engage in business, to hire and occupy warehouses, and to employ proper agents. Moreover, it sought to grant equal access to justice before the municipal courts of the host state.

•

Unequal Treaties and the Use of Force in the Relationship with the Colonies and Weaker States

The same protection rule based on commercial treaties applicable among European/Western states did not apply in the context of commercial activities involving other parts of the world. With a few exceptions in their relationships with some Latin American countries, strategies adopted for protecting foreign 305  Harry H. Almond, The Anglo—Japanese Commercial Treaty of 1963, 13 Int’l & Comp. L.Q. 925, 943 (1964); Kenneth J. Vandevelde, A Brief History of International Investment Agreements, 12 U.C. Davis J. Of Int’l L. & Pol. 157, 158 (2005). 306  Additional and Explanatory Convention to the Treaty of Amity, Commerce and Navigation of May 16, 1832, 1 September 1833, United States-Chili, art. 11, 18(2) Stat. 112, 113. 307  Treaty of Amity, Commerce, Navigation and Extradition, August 27, 1860, United StatesVenezuela, Article III, 18(2) State. 797, 798 in George P. Sanger (ed.), The Statutes at Large, Treaties, and Proclamations of the United States of America from December 5, 1859 to March 3, 1863 Vol. XII 1144–45 (Little, Brown and Company, 1863).

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investors and their properties in non-Western regions were established under the colonial agendas; the politically and economically powerful states concluded unequal treaties with their colonies or countries under semi-colonial circumstances. One of the key features in the realization of the commercial benefits in the colonies was conflict followed by the imposition of unequal treaties.308 In the dynamics of the colonial relationship, Western states did not feel a need to enter into reciprocal agreements, since as colonial rulers, they were already equipped with superior power to control these territories, preventing them from being concerned with local interference.309 The central features of unequal treaties made against the backdrop of colonial expansion were non-reciprocal rights and extraterritorial jurisdiction.310 These treaties conferred significantly one-sided rights to the benefit of Western states who were typically granted the right to exercise extraterritorial jurisdiction in the colonial territories. Alvarez notes, These capitulation agreements imposed the “standard of civilization” on the “uncivilized” by granting jurisdiction over Western nationals and their property to consular officials of the Western states in lieu of local courts. Western states justified these treaties on the premise that poor host states of foreign traders and investors were incapable of satisfying the standard of justice granted by “civilized nations.”311 Similarly, under the provision of foreign extraterritoriality, Western merchants and investors were considered to be under the direct consular control of their home states. This was perceived as an effective method of ensuring the security of their nationals’ commercial interests in the colonial territories. Foreign nationals and their properties were exempted from local laws, 308  Werner Morvay, Unequal Treaties in Encyclopedia of Public International Law Vol. 7, 514– 517 (Rudolf Bernhardt ed., North-Holland Publishing, 1984); M. Sornarajah, International Law on Foreign Investment 20 (Cambridge University Press, 3rd ed., 2010). Anghie (2005), at 72–74. 309  Salacuse (2010), at 82. 310  Ibrahim F.I. Shihata, Legal Treatment of Foreign Investment: World Bank Guidelines 78 (Martinus Nijhoff Publishers, 1993); see also Dong Wang, China’s Unequal Treaties: Narrating National History (Lexington Books, 2005); Michael R. Austin, Negotiating with Imperialism: The Unequal Treaties and the Culture of Japanese Diplomacy (Harvard University Press, 2004). 311  Jose Alvarez, Contemporary International Law: An “Empire of Law” or the “Law of Empire”, 24 Am. U. Int’l L. Rev. 811, 827 (2009).

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avoiding application of any local justice. Moreover, unequal treaties typically provided a low standard for justifying military intervention of home states of the aggrieved foreigners, but imposed significantly high obligations on host states to sustain privileged treatments for foreign investors. For example, China signed a series of unequal treaties with foreign powers, particularly during the period of 1840s and 1860s.312 In the aftermath of the First Opium War (1839–1842), the Treaty of Nanking of 1842 was concluded with the United Kingdom that introduced the first European extraterritorial privileges in the East Asian region. Subsequently, China signed numerous unequal treaties with the major colonial powers, granting similar exercise of extraterritorial jurisdiction: examples can be found in the terms of Treaty of Wanghia with the United States in 1844, Treaty of Whampoa with France in 1844, Treaty of Aigun with Russia in 1858, Treaty of Tientsin with Prussia and the German Customs Union in 1861, and the Treaty of Peking with AustriaHungary in 1869. The practices of extraterritorial jurisdiction in one form or another existed in China, Japan, Thailand, Iran, Egypt, Morocco and Turkey.313 Colonial ruler states sought a way to apply their own domestic laws to their nationals in foreign colonial territories. The colonial powers exerted controls over their nationals and property interests by exercising extraterritorial jurisdiction conferred by the unequal treaties.314 The Western European countries and the U.S. commonly resorted to coercive military measures and forcible interventions in order to enforce their claims to protect their nationals and the properties. Violence inflicted to secure commercial benefits and foreign investment was easily justified under the guise of freedom of commerce and the right to enjoy such freedom.315 States deemed it necessary to protect their nationals and interests abroad. Alejandro Alvarez, a contemporaneous international law scholar who later became a judge of the ICJ, wrote in 1909: the “the use of force, such as the seizure of customs house, pacific blockades, [. . .] in order to compel the recognition of claims” was used by these states to “assure unduly for their citizens who came to those countries

312 Morvay (1984), at 515; for more thorough case study along these lines, see Li Chen, Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the Lady Hughes Controversy in 1784, 27 L. & Hist. Rev. 1 (2009). 313 Charles Lipson, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries 12–16 (University of California Press, 1985). 314  Similarly, Frederick Sherwood Dunn, The Protection of Nationals: A Study in the Application of International Law 54 (The Johns Hopkins Press, 1932). 315  Ibid., at 46.

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a specially privileged situation.”316 Another commentator stated that such “protection by force” was highly prevalent and between 1813 and 1927. United States alone engaged in force in no fewer than one hundred incidents during this period.317 Western colonial powers made armed interventions to enforce the claims of the aggrieved nationals.318 The term, “gunboat diplomacy” originally described the European practice of displaying power by sending military vessels to colonial territories as well as to weaker states in Latin America and by force, enforcing the rights of their nationals. The Latin American continent suffered from numerous armed interventions by the Western states aimed at protecting foreign nationals engaged in commercial activities. These incidents occurred during the countriesʼ formative years after gaining independence from prolonged colonial rule.319 The U.S. employed military force in Buenos Aires to protect its nationals and commercial interests in 1833. Repeated French interventions in Mexico in 1838, 1861 as well as in between the years of 1862 and 1867 also constituted a clear example of protection by force.320 France also blockaded the Vera Cruz port in 1838 to recover debts owed to its nationals by the Mexican government.321 In the years between 1900 and 1901, Britain, France, Germany, Italy, Japan, Russia and the United States employed great force in China to suppress the Boxer Uprising that substantially threatened foreign interests in China.322 Venezuela’s failure to repay debts prompted the blockade and bombard316  Alejandro Alvarez, Latin America and International Law, 3 Am. J. Int’l L. 269, 300 (1909). 317  See Milton Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (The Johns Hopkins Press, 1928). 318 Andrew Newcombe and Lluis Paradell, Law and Practice of Investment Treaties 8–9 (Kluwer Law International, 2009); Kate Miles, The Origins of International Investment Law 47–48, 59 (Cambridge University Press, 2013). 319   See Donald R. Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy 12–14 (University of Minnesota Press, 1955); Lipson (1985), at 14, 18, 40, 53–54, 187; Nancy Mitchell, The danger of dreams: German and American imperialism in Latin America (The University of North Carolina Press, 1999); Jorge E. Vinuales & Magnus Jesko Langer, Foreign Investment in Latin-America: Between Love and Hatred in Latin America 1810–2010: Dreams and Legacies 320–327 (Claude Auroi & Aline Helg eds., Imperial College Press, 2010). 320  Robert Freeman Smith, Latin America, the United States and the European Powers, 1830–1930 in The Cambridge History of Latin America, Vol. IV 84 (Leslie Bethel ed., Cambridge University Press, 1986). 321  William S. Robertson, French intervention in Mexico in 1838, 24 Hispanic Am. Hist. Rev. 222 (1944); Johnson Jr. & Gimblett (2012), at 652. 322 Victor Purcell, The Boxer Uprising: A background study 249 (Cambridge University Press, 1963).

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ment of Venezuelan ports by Britain, Germany and Italy in the course of 1902 and 1903.323 British and German forces jointly attacked Venezuela in order to force the Venezuelan government to pay back debts owed to British and German investors; joint military actions by two or more Western states to protect foreign interests became a common practice. The U.S. also made repeated military interventions in Central America and Caribbean: the U.S. military force was deployed in Dominican Republic in 1905 and 1916 and also in Nicaragua in 1911.324 This practice of coercion in colonies as well as in some weaker states of Central and South America continued in the early Twentieth century.325 In the countries where armed interventions by the Western states had frequently occurred in the context of protecting foreign investors and their interests overseas, there was a great deal of resentment and frustration felt by local citizens.326 For instance, in order to resist foreign interventions, Latin American countries adopted various measures, including attempts to employ military force, developing international legal doctrines, and cultural resistance.327 Notably, then-Minister of Foreign Affairs in Argentina Luis M. Drago argued that public debts could not justify armed intervention or occupation of territory of American states.328 These adverse experiences involving the protection of aliens and their properties led many Latin American States to perceive investments as an instrument of colonialism or foreign dominance.329 323  See Michael Silagi, Preferential Claims Against Venezuela Arbitration in Encyclopedia of Public International Law, Vol. III 1098 (Rudolf Bernhardt ed., North Holland Publishing, 1992). 324  Abraham F. Lowenthal, The United States and the Dominican Republic to 1965: Background to Intervention, 10 Caribbean Studies 30, 31–35 (1970). 325  Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int’l L. J. 1 (1999); between 1813 and 1927 by the United States alone. See Milton Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (Johns Hopkins Press, 1928). 326  See generally, Chen (2009). 327 Various incidents of national resistance in this regard are illustrated in Peter H. Smith, Talons on the Eagle: Latin America, the United States, and the World 64–91 (Oxford University Press, 4th ed., 2012). 328  His statement was a reaction to the blockade of Venezuelan ports by the armed vessels of the Britain, Germany and Italy during 1902 and 1903. On this “Drago doctrine” and additional principles relating to non-intervention developed by Latin American scholars, Luis M. Drago, State Loans in their Relations to International Policy, 1 Am. J. Int’l L. 692 (1907); see also Jorge L. Esquirol, Latin America in The Oxford Handbook of the History of International Law 553, 566–570 (2012). 329  Omar E. Garcia-Bolivar, The Latin American Struggle With the International Law of Foreign Investment: Is It A Demand for A More Balanced System? 6 TDM 1 (2009).

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Many diplomats and jurists developed international legal doctrines to resist the international protection of foreign investors’ rights, through diplomatic or military intervention. The Calvo Doctrine was a reaction to the threat of European intervention in Argentina during 1834–1850 and other Latin American states.330 It was also stood in intellectual opposition against emerging international legal rules concerning the protection of foreign investors. Carlos Calvo, the Argentine diplomat and jurist, articulated this legal doctrine. In his view, courts of the host states should have exclusive jurisdiction over disputes involving foreign states’ nationals and their property interests: the rights of the foreign nationals in the territory of the host state should be regulated by the law of that state. He also asserted that foreign nationals were not entitled to better treatment than that accorded to nationals, and foreign nationals’ rights are to be regulated by the host state’s law.331

•

Use of Claims Commission and Arbitration

In this era, the claims commissions and arbitral tribunals were instituted to resolve disputes regarding protection of investments in foreign lands.332 The ad hoc tribunals established under the Jay Treaty of 1794 concluded between Britain and the U.S. were predecessor of claims commissions and arbitral tribunals of this type. The primary objective of these tribunals was to resolve various claims of their nationals against the backdrop of the Independence War. As Ralston notes, “[p]rior to this time arbitrations were irregular and spasmodic; from this time forward they assumed a certain regularity and system.”333 One commentator notes that “[i]n the century after 1840 some sixty mixed claims commissions were set up to deal with disputes arising from injury to the interests of aliens.”334 Numerous “claims settlement conventions” were adopted between states: some examples include the conventions between Mexico and the U.S. of 1839, 1848, 1868, and 1923, the Venezuela arbitrations of 1903 involved claims of ten states against Venezuela and conventions between

330  Oscar M. Garibaldi, Carlos Calvo Redivivus: The Rediscovery of the Calvo Doctrine in the Era of Investment Treaties 3 TDM 5, 14–16 (2006); Newcombe & Lluis Paradell (2009), at 9–10. 331  Shea (1955), at 17–19; Newcombe & Lluis Paradell (2009), at 13; Miles (2013), at 50. 332  Jackson H. Ralston, International arbitration from Athens to Locarno 228 (Stanford University Press, 1929). 333  Ralston (1929), at 191. 334  Brownlie (2008), at 22.

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Britain and the U.S. of 1853, 1871, and 1908.335 Cases brought before the claims commissions created under these conventions dealt with the interests of foreign nationals adversely impacted by measures taken by the respondent states. Arbitral proceedings in this sphere were often undertaken under significant pressure resulting from the threat or use of military force.336 In many cases, Western states attained remedies that were not proportionate to the injury inflicted on their nationals and properties.337 2.3.2 Colonial Expansion as a Wealth Accumulation Policy Colonial expansion and exploitation were closely associated with the commercial strategies adopted by major Western states in this era; these practices were significant wealth-accumulation policies developed in the context of growing imperial expansion.338 As early as the sixteenth century, active territorial conquest of the New World and the subsequent colonization began in Western Europe. Under the mercantilism that dominated political economy of Western Europe during the sixteenth through eighteenth centuries, the adequate supply of raw resources such as gold and silver was of paramount importance to promoting national wealth and security. Mercantilists further observed that these resources should be acquired from colonial possessions: the major colonial powers perceived their colonial territories as a vital source of raw materials. The trend of imperial conquest accelerated in the nineteenth century as the Industrial Revolution progressed. The Industrial Revolution brought about a great deal of capital surplus in the Western states; new technological developments significantly enhanced productivity. Accordingly, the Western states looked for opportunities outside the continent that could serve as markets for the rising volume of manufactured goods produced in their countries. These states justified colonial exploitation partly in the name of civilizing missions undertaken for the sake of “barbaric” states failed to comply with certain standards necessary for being recognized as civilized nations.339 The Non-Western world was treated as an object of colonization and civilization. 335  Ibid., at 522; see also Michael Silagi, Preferential Claims Against Venezuela Arbitration in Encyclopedia of International Law, Vol. III 1098 (Rudolph Bernhard ed., North-Holland Publishing, 1992). 336  Newcombe & Lluis Paradell (2009), at 8. 337  Shea (1955), at 12; Lipson (1985); Wolfgang Benedek, Cerrutti Arbitrations in Encyclopedia of International Law, Vol. I 555 (Rudolph Bernhard ed., North-Holland Publishing, 1992). 338  See Anghie (2005), at 67–71; Sornarajah (2010), at 19–21. 339  Western states engaged in colonization not only for economic reasons but also, for instance, nationalism-inspired motives. Clough & Cole (1947), at 476.

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Since a large part of the increase in trade and investment occurred within the colonial territories, the context of colonial expansion provides an important background for understanding legal developments in the fields of international trade and investment. Guha-Roy explains, this branch of international law grew up to its present maturity in the nineteenth century and the first half of the twentieth, in the midst of a contest among a number of important members of the contemporary international community for the mastery of the politically and economically underdeveloped regions of the globe. . . . such a world cannot be particularly conducive to the growth of just law.340 Colonialism provided a historical context for the early evolution of legal and non-legal protection methods for protecting foreign investors and their properties abroad.341 There was a substantial difference between international legal rules applied to the inter-European/U.S. relations and the rules governing the relations between these Western States and the rest of the world. In a similar vein, the Third World Approaches to International Law (“TWAIL”) has been introduced by a group of scholars in examining the proper placement of the colonialism in the development of international law. Anghie, a prominent scholar in this field, argues that basic rules of present international law and institutions are fundamentally shaped by the interaction between the colonizers and the colonized in this era. In his view, many of the basic doctrines of international law were built out of the attempts to create a legal system that would work successfully in the context of colonial confrontation.342 Fatouros also observes that the modern foundation of international law was developed by the Western states as “an instrument of conquest and oppression.” Drawing an interesting analogy between the foundation of anthropology and that of international law, he asserts that international law is “daughter to this era of violence”343 and that it developed in much the same fashion as 340  S.N. Guha-Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law? in International Law in the Twentieth Century 539 (The American Society of International Law ed., Meredith Corporation, 1969) (originally appeared in 55 Am. J. Int’l L. 863 (1961)). 341  Sub-section (1)(ii)(b) of the current Section; see also Newcombe & Lluis Paradell (2009), at 8; Miles (2013), at 19–32. 342  On the close connection between the expansion of European empires and the formation of international law, Anghie (2005), at 2–3. 343  Arghyrios A. Fatouros, Participation of the “New” States in the International Legal Order of the Future in The Future of International Legal Order Vol. I 348–349 (Richard Falk & Cyril E. Black eds., Princeton, 1969).

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a­ nthropological studies did, alongside the imperialistic perspectives dominant during this period. Diverse cultural, religious, or political ideas and traditions prospered in these colonized lands were not successful in making any substantial connection to the origins of the present international law system. On these lines, Gathii also asserts that from the perspective of TWAIL scholars, imperialism is “ingrained in international law as we know it today.”344 2.4 International Codification Conferences The codification of the law of nations was a decisive contribution to the emergence of modern international law.345 In the beginning, areas with fewer political implications were the first to be codified; topics covered by early conference included regulation of river traffic, postal service, telegraphy, railroads and fishing. International cooperation in these areas was critical to enhancing transportation and communication between states. For example, the Central Rhine Commission in 1804 and the European Danube Commission in 1856 responded to the strong commercial demands to regulating river traffic. The Universal Telegraphic Union (1865), the General Postal Union (1874), the International Bureau of Industrial Property (1883) and the International Union of Railway Freight Transportation (1890) were established as well. The first treaties concerning railway traffic and road traffic were concluded in 1886, 1890 and 1909. Interestingly, these areas of regulation were strongly connected to the facilitation of trade and commerce between States. Two major international conferences aiming to codify international law were held in the Hague, the Netherlands in 1899 and 1907, respectively. These “Hague Peace Conferences” were built on the development of international 344  James Thuo Gathii, Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy 98 Mich. L. Rev. 1996, 2020 (2000); but, Brad Rot argues in a critical tone that “[c]haracterizing contemporary international law as essentially continuous with patterns of past Western domination” only underestimates “the hard-won achievements of anticolonialist struggles.” Brad R. Roth, Governmental Illegitimacy and Neocolonialism: Response to Review by James Thuo Gathii 98 Mich. L. Rev. 2056, 2065 (2000). 345  It was not until the nineteenth century when international treaties began to be concluded in a multilateral forum to deal with the problems of common concern: earlier, a majority of treaties had been negotiated in a bilateral manner. Notably, the Congress of Vienna established at the aftermath of the Napoleonic Wars was the first multinational forum to create legal order applicable in the relationship between the States parties. Here, the leading powers devised a system of collective security “in the Name of Europe.” Harold Nicolson, The Congress of Vienna, A Study in Allied Unity, 1812–1822 (Constable London, 1946).

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law and relations throughout the nineteenth century. Conventions created at the conclusion of each conference not only codified existing rules but also elaborated them even further. As David Bederman explains, “the 1899 and 1907 Peace Conferences are remembered both for their contributions to the laws of war [. . .] and to the rules for the peaceful settlement of disputes between nations.”346 The two Hague Conferences consolidated earlier efforts to codify international humanitarian law. It was application of enlightenment values on the battlefield by incorporating humanitarian concerns. With the rise of an international movement to codify the laws of war, states sought a more effective way to achieve the reduction of armaments and to develop other means by which the peace could be maintained.347 There was a continuing demand from various peace movements for the establishment of judicial institutions and peaceful resolution of international conflicts.348 Nevertheless, while many states demanded a more institutionalized form of dispute settlement, these proposals were unacceptable to most states, which were opposed to the idea of having an autonomous international institution with a judicial function. Secondly, participating states also envisioned a peaceful dispute settlement mechanism by adopting the Hague Convention for the Pacific Settlement of International Disputes, creating the embryonic structures of peaceful dispute settlement. The Convention specifically urged states “to use their best efforts to ensure the pacific settlement of international differences.”349 While the resolution of interstate disputes were heavily reliant on closed diplomacy, this move

346  David J. Bederman, The Hague Peace Conferences of 1899 and 1907 in International Courts for the Twenty-First Century 9 (Mark W. Janis ed., Martinus Nijhof Publishers, 1992). 347  As written in the note proposing the First Peace Conference, “maintenance of general peace and a possible reduction of the excessive armaments” were primary objectives. Official correspondence leading up to the first peace conference. Shabtai Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents 23 (T.M.C. Asser Press, 2001). 348   Edward McWhinney, Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court 156 (Martinus Nijhoff Publishers, 1991); Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists 140 (Oxford University Press, 2012); Geoffrey Best, Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After, 75 Int’l Aff. 619, 619–621, 623–631 (1999) (describing some of the events surrounding the 1899 Hague Peace Conference). 349  Article 1 of the Hague Conventions of 1899 and 1907.

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sought to introduce rule of law—instead of power politics—into international realm.350 The initial attempt to create a permanent international tribunal was inspired by the experiences of the Alabama arbitration in the years between 1871–1872. The Alabama arbitration, established to resolve a dispute between Britain and the U.S. over the damage inflicted during the American Civil War, was successfully concluded and its success “stimulated a remarkable activity in the field of international arbitration.”351 Subsequent to this arbitration, there was a general understanding that having this institution of arbitration on a permanent basis would be of great interest for every State. Along these lines, the Hague Convention for the Pacific Settlement of International Disputes was adopted by the delegates during the first Hague Peace Conference in 1899.352 The Convention contained provisions of voluntary arbitration and rudimentary procedural rules for the Permanent Court of Arbitration (“PCA”).353 The PCA was intended to resolve disputes over the legal questions of interpretation or application of relevant treaties. About a decade after the first Conference, states reconvened in 1907. The Second Hague Peace Conference convened at the suggestion of U.S. President Theodore Roosevelt. The contracting states revised and enlarged the contents of the 1899 Convention. During this second Conference, a number of delegations advocated a system of compulsory adjudication to replace the optional mechanism of the 1899 Convention. These efforts aimed at eliminating threats and the use of force as a means of settling international disputes. Nevertheless, the 1907 Conference did not bring about significant changes in this regard and only made a recommendation on the adoption of a draft convention relative to the creation of a Court of Arbitral Justice.354 While the exercise of diplomatic protection was “in routine work of foreign officers,” interstate adjudication

350  On these lines, “the very end of the nineteenth and the beginning of the twentieth century showed considerable improvement in the law of international dispute settlement.” James Crawford, Continuity and Discontinuity in International Dispute Settlement: An Inaugural Lecture, 1 J. of Int’l Dispute Settlement 3, 9–12 (2010). 351  Manley O. Hudson, International tribunals: Past and future Vol. I, 5 (Carnegie Endowment for International Peace and Brookings Institution, 1944); see also Tom Bingham, The Alabama Claims arbitration, 54 Int’l & Comp. L.Q. 1, 24 (2005). 352  Convention for the Pacific Settlement of International Disputes (1899). 353  For the creation of the PCA and the 1899 Hague Convention, see David D. Caron, War and International Adjudication: reflections on the 1899 Peace Conference, 94 Am. J. Int’l L. 4 (2000). 354  James Brown Scott, The Proposed Court of Arbitral Justice, 2 Am. J. Int’l L. 772 (1908).

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was provided only in exceptional cases.355 The concept of judicial settlement through permanent international institutions continued to be unpopular among States: “[s]tates were much more accustomed to un-institutionalized dispute settlement.”356 C

International Human Rights and Economic Law Regimes

This section explores the process of which international human rights and economic regimes have evolved into specialized forms of rules and institutions in the course of decades subsequent to the World Wars. Main components of contemporary international human rights and economic law will be examined. 1 Background In the early twentieth century, international legal order contained relatively few legally binding treaties. While the number of international agreements concluded among states was clearly growing, no overarching system of international law existed to deal with the various regulatory concerns in a specialized manner. In his inaugural lecture at Oxford in 1924, Brierly noted this limitation on the role of international law in international relations and went on to argue that “even those who have a confident belief in its future will probably concede that the comparatively small part that international law play in the sphere of international relations as a whole is disappointing.”357 Around the end of the Second World War, plans for a new world order began to take shape. A growing consensus emerged that the international system, destructed by prolonged military conflicts and widespread violence committed against civilian populations, was in need of reconstruction. States agreed to carry out this reconstruction project in a collective manner at the multilateral forum. Most importantly, drawing upon the structure of the League

355   Frederick Sherwood Dunn, The Diplomatic Protection of Americans in Mexico 3 (Columbia University Press, 1933); see also Brownlie (2008), at 500. 356 Elihu Lauterpacht, Aspects of the Administration of International Justice 15 (Cambridge University Press, 1991). 357  James L. Brierly, The Shortcomings of International Law, reprinted in James L. Brierly, The Basis of Obligations in International Law and Other Papers 68 (Hersch Lauterpacht & C.H.M. Waldock eds., Oxford University Press, 1958).

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of Nations, its predecessor,358 the UN was created around the conclusion of the Second World War. The UN Charter established the basic structure of new international legal order and proclaimed basic principles underlying the current legal system: it was a big step toward “constitutive innovation in international law.”359 The primary objective of the project was to create international rules and institutions designed for peace keeping and economic recovery. Subbranches of international law including international human rights and economic law were also developed as integral parts of this scheme, since proper governance in these legal fields are vital to promoting peace and prosperity of the international community. The continuing trend of international law’s remarkable growth accelerated at the end of Cold War: as the stark ideological divide between nations was largely diluted, states became more willing to cooperate in order to establish international arrangements in various issue areas.360 In 1989, the UN General Assembly adopted a Resolution designating the period from 1990 to 1999 as the “United Nations Decade of International Law.”361 Under this initiative, a series of efforts were made to establish the primacy of law in international relations. States strongly urged that a comprehensive international strategy was needed to restructure the basis of international relations with a view toward the “primacy of law in relations between states.”362 Many activities previously under exclusive national control began to be scrutinized under the guidance of international rules and principles. One of the keywords capturing the development of international law during the post-UN era is “expansion” or “growth” at unprecedented level. It reflects a corresponding growth of the need and desire to create a collective governance structure at the international level. As the level of interdependence has increased, countries with different cultures and histories have come to see the benefit of applying legal rules in international relations. This expansion or growth has unfolded in three ways: areas of formal rules, regulatory institutions, and participators. 358  For the examination of the contemporaneous legal scholar, see Leland M. Goodrich, From League of Nations to United Nations, 1 Int’l Org. 3 (1947). 359  Reisman (2013), at 52. 360  See W. Michael Reisman, International Law after the Cold War, 84 Am. J. Int’l L. 859 (1990); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2624 (1997). 361  U N GA Resolution 44/23, United Nations Decade of International Law, U.N. Doc. A/RES/ 44/23 (Nov. 17, 1989). 362  U N GA Memorandum: On Enhancing the Role of International Law, U.N. Doc. A/44/585 (Oct. 2, 1989).

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First, the number of international legal arrangements has proliferated and the issue areas covered by these legal instruments have expanded to a greater extent. It has become extremely difficult for states to achieve their national objectives by taking independent actions on their own. When the number of problems exceeds a state’s capacity to control them, issues that require international cooperation were extended to include new fields of regulation, leading to the emergence of a vast network of legal instruments in international law, leading to the current situation, in which, “states make treaties about every conceivable topic.”363 Institutional growth is another important aspect of the development of international law.364 States have become more proactive in creating global platforms to regulate various legal spheres such as trade, human rights, and environment sectors. A network of multilateral and regional organizations has emerged to cope with the common problems of mankind through cooperation and coordination.365 Policy-developing committees and enforcementenhancing mechanisms have been institutionalized to promote workability of international law in the field. International courts and tribunals have also increased exponentially; more than fifty international courts and tribunals were established in the past few decades.366 The remarkable growth of international judicial institutions has contributed to enhancing the enforcement of international law; international adjudication provides a more effective way of resolving disputes between various stakeholders of international law. Lastly, participating actors in the field of international law have been increasingly multiplied and diversified, largely due to substantial increase in the number of the countries worldwide. The strong aspirations toward decolonization and independence became acute in the 1960s and 1970s, resulting in the emergence of new states on the international scene. Newly independent countries were eager to retain full sovereignty over various matters of domestic concerns. At the same time, they began to take initiatives to influence the creation and development of international law. Their addition to the 363  Peter Malanczuk, Akehurst’s Modern International Law 130 (Routledge, 7th rev. ed., 1997). 364  See International Organizations as Law-makers (Oxford University Press, 2009). 365  While in 1909, only 37 international organizations existed, by the year 1956, the number reached 132, and in 1985, there were 378. Charlotte Ku, Global Governance and the Changing Face of International Law, Academic Council on the United Nations System, ACUNS Reports & Papers No. 2 (2001). 366  Roger P. Alford, The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 Am. Soc’Y Int’l L. Proc. 160, 160 (2000); Jose E. Alvarez, The New Dispute Settlers: (Half ) Truths and Consequences, 38 Texas Int’l L. J. 405, 405–409 (2003).

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international system encouraged new arguments in existing legal discourse and inspired scholars to examine the present structure of international law from the perspective of the colonized in their colonial histories: new members strongly challenged the positions of the powerful states and norms supposedly came into existence without their actual participation.367 At the conclusion of the Cold War, former communist nations took up membership in the UN and in other major international organizations such as the WTO. Not only sovereign states but also various non-state actors have participated in the creation and application of international law: in today’s system, states have a preeminent role, but are not the only players in international decision-making. While “an explicit assumption that the international system is an association of sovereign states” once prevailed, international law has developed in a gradual way, empowering non-state actors to enter the domain of traditional state functions.368 Non-state actors, including NGOs, businesses entrepreneurs and even individual figures, actively engage in international decision-making processes. 2 The Rise of International Human Rights Law Regime It was not so long ago when human rights came under the purview of international legal arrangements. The violent atrocities occurred during two World Wars in early Twentieth century led states to develop common standards and processes for the protection of human rights. There was a shared understanding that the relationship between the states and individuals subject to its jurisdiction no longer belonged exclusively to the domestic sphere. Against this backdrop, the international human rights regime initially emerged as a revolutionary post-war project.369 States concluded a range of human right instruments under the UN system and other regional arrangements. While treaties 367  Tieya Wang, The Third World and International Law in The Structure and Process of International Law 955 (Ronald St. J. MacDonald & Douglas M. Johnson eds., Martinus Nijhoff Publishers, 1989). 368  Thomas Frank, The Empowered Self—Law and Society in the Age of Individualism 5 (Oxford university Press, 1999); on this point, possibly we may have been “brainwashed to see the state as an essential part of law.” Thomas Waelde. Edited version of the Lex Mercatoria Discussion on the OGEMID (Oil-Gas-Energy-Mining-Infrastructure Dispute Management), Discussion Forum between Nov. 5, 2003 and Nov. 11, 2003 (also published in OGEL Vol. 2 issue 1, Feb. 2004) (available at http://www.tldb.de/). 369  See Christian Tomuschat, Human Rights. Between Idealism and Realism 7 (Oxford University Press, 2nd ed., 2008); Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary 48–58 (Cambridge University Press, 2010); Brierly’s Law of Nations (2012), at 235; Philip Alston & Ryan Goodman, International Human Rights 3 (Oxford University Press, 2013).

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are not the only sources of international human rights law, they constitute its most significant source.370 2.1 UN-based Human Rights Arrangements Under the UN Charter, Member States are urged to promote “universal respect for, and observance of human rights and fundamental freedoms.”371 The Charter further recognizes the protection and promotion of human rights as a purpose of the UN as a whole,372 of the General Assembly,373 the Economic and Social Council,374 as well as the trusteeship system.375 However, the comprehensive incorporation of human rights into international law was highly challenging at this initial stage: expressing his concerns about progress in 1945, one contemporaneous international law scholar stated, “any attempt to translate the idea of an International Bill of the Rights of Man into a working rule of law is fraught with difficulties which disturb orthodox thought to the point of utter discouragement.”376 Three years after the adoption of the Charter, Universal Declaration of Human rights (“UDHR”)377 was proclaimed by the adoption of the UN General Assembly Resolution 217 (III) in December 1948. It enumerated the basic principles of international human rights standards. Signaling the advent of the “Age of Human Rights,” the UDHR represented a major achievement of “150 years of struggle for rights” begun in the late eighteenth century.378 The UDHR consists of a Preamble and 30 Articles, marking a fundamental reference point for contemporary human rights protection, and providing an 370  For example, as examined in chapter 2, it is well recognized that the jus cogens norms have “an almost intrinsic relationship between peremptory norms and human rights”. Bianchi (2008); see also Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 Australian Y.B. Int’l L. 82 (1989). 371  U N Charter Article 55. 372  U N Charter Article 1, para. 3; Article 55, para. 3, Article 56. 373  U N Charter Article 13, para. 1. 374  U N Charter Article 62, para. 2. 375  U N Charter Article 77. 376 Hersch Lauterpacht, An International Bill of Rights of Man 9–10 (Columbia University Press, 1945). 377  Universal Declaration of Human Rights, UN GA Resolution 217A(III), U.N. Doc. A/810 (Dec. 12, 1948). 378  Lynn Hunt, Inventing Human Rights: A History 207 (W.W. Norton & Co., 2007); Moyn, however points out that “it [UDHR] was less the annunciation of a new age than a funeral wreath laid on the grave of wartime hopes.” Samuel Moyn, The Last Utopia: Human Rights in History 2 (The Belknap Press of Harvard University Press, 2010).

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inspiration for subsequent multilateral legal instruments. While neither the Charter nor the UDHR is legally enforceable as such, these international instruments nonetheless have a continuing normative importance, as they provide a solid foundation for the “international benchmarks for moral standards.”379 At the same time, the contribution from the so-called third world and developing countries were relatively insignificant during the drafting process. The Economic and Social Council (“ECOSOC”), one of the six principal organs of the UN serves as a central mechanism to promote various human rights-related tasks. Pursuant to Article 62 of the Charter, ECOSOC may make recommendations on human rights matters, draft conventions for the General Assembly, and facilitate multilateral conferences on codifying human rights regulation. Following the adoption of the UDHR, ECOSOC established the Commission on Human Rights (later replaced by the Human Rights Council) in 1946. In 1970, the ECOSOC adopted Resolution 1503 authorizing the Commission to conduct confidential investigations of complaints suggesting “a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.” This so-called 1503 procedure is the oldest human rights complaints process in the UN system. It is confidential and more concerned with examining patterns of gross violations of human rights rather than individual cases. The Commission on Human Rights was also mandated to draft the International Bill of Rights, a comprehensive instrument that would empower the principles proclaimed in the UDHR with legal force. During the first session of the Commission, there was a heated debate as to the formation of the International Bill of Rights. While some wanted a declaration, others favored a treaty type of rights protection with binding legal effect. At the conclusion of the second session of the Commission, it was initially envisaged to have three parts: a Declaration, a Covenant and measures of implementation. According to General Assembly Resolution 421 adopted during its Fifth session in 1950, while the rights recognized in the Declaration fall roughly into two categories (of civil and political rights on the one hand and the economic, social and cultural rights on the other hand), states considered that the enjoyment of rights in both categories is “interconnected and interdependent” and requested the ECOSOC to draft the Covenant in consideration with such feature.380

379  Pierre M. Dupuy, A Doctrinal Debate in the Globalization Era: On the Fragmentation of International Law, 1 Eur. J. of Legal Studies 1 (2007). 380  Draft International Covenant on Human Rights and Measures of Implementation: Future Work of the Commission of Human Rights, GA Resolution 421 (V)(E) December 4 1950.

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However, the grand plan to draft a single covenant covering a wide range of fundamental human rights enumerated in the UDHR was thwarted by the ideological divide between member states with the onset of the Cold War. In 1952, due to disagreement among states over the appropriate means of implementing civil and political compared with the economic, social and cultural rights, it was eventually decided to draft two separate instruments.381 While the Western states put a particular emphasis on civil and political rights, the Soviet Union and its allies were more concerned with the promotion of economic and social rights, strongly favoring inclusion of these rights into the text. The different trajectory of each category of rights led to the conclusion of two separate instruments in 1966. Rights proclaimed in the UDHR were bifurcated into two international covenants: the International Covenants on Civil and Political Rights (“ICCPR”),382 and on Economic Social and Cultural Rights (“ICESCR”).383 In these succeeding instruments, human rights were defined in a more comprehensive and detailed way. While the contents and scope of various human rights in international law remained in considerable uncertainty, the central importance of human rights in international decision-making was repeatedly noted. For instance, in 1971, the ICJ recognized the profound relevance of the spirit of the UN Charter to human rights protection, stating “a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.”384 The Human Rights Council and the Office of the High Commissioner for Human Rights (“OHCHR”) play essential roles in the UN human rights system. The Human Rights Council is a subsidiary organ of the General Assembly. It was created by the General Assembly Resolution 60/251 in March 2006, replacing the Commission on Human Rights, the Council’s predecessor that was originally instituted by the ECOSOC in 1946. The Sub-Commission on the Promotion and Protection of Human Rights came into existence in 1947 in 381  Accordingly, by the so-called Separation Resolution of 1952, the Commission on Human Rights decided to split the UDHR into two separate draft treaties. UN General Assembly Resolution, Preparation of Two Drafts International Covenants on Human Rights, Feb. 5, 1952, UN Doc. A/RES/543 (VI). 382  International Covenant on Civil and Political Rights, UN GA Resolution 2200A (XXI), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. 383  International Covenant on Economic, Social and Cultural Rights, UN GA Resolution 2200A (XXI), U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976. 384  As quoted in ILC Conclusions (2006), para. 16; for further discussion in this regard, Egon Schwelb, The International Court of Justice and the Human Rights Clauses of the Charter, 66 Am. J. Int’l L. 337 (1972).

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order to support various mandates of the Commission on Human Rights, but was later taken up with the Council after its creation. The Human Rights Council consists of 47 UN Member States that are elected by an absolute majority of the General Assembly for three-years terms; its membership is allocated based on the principle of equitable geographical distribution.385 The General Assembly Resolution 60/251 grants a comprehensive human rights mandate to the Council. The main mandates are:

• to promote universal respect for the protection of all human rights and fun-

damental freedoms for all, without distinction of any kind and in a fair and equal manner; to address situations of violations of human rights, including gross and systematic violations; to promote effective coordination and mainstreaming of human rights within the United Nations system; to promote human rights education and learning, advisory services, technical assistance, and capacity building; to serve as a forum for dialogue on thematic issues on all human rights; to make recommendations to the UN General Assembly for the further development of international law in the field of human rights; to promote the full implementation by UN member states of their human rights obligations and commitments; to undertake a universal periodic review of every UN member state’s fulfillment of its human rights obligations and commitments; and to contribute, through dialogue and cooperation, toward the prevention of human rights violations and respond promptly to human rights emergencies.

• • • • • • • •

The Resolution further states that, in carrying out its functions, the Council “shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation with a view to enhance the promotion and protection of all human rights.” The Human Rights Council holds a minimum of three sessions every year. The Special Sessions can also be convened at the request of a member of the 385  As of 2014, thirteen states from Africa, another thirteen countries from the Asia-Pacific region, eight seats for Latin American and Caribbean States, seven Western European other states, and six countries in the Eastern Europe region constitute the Human Rights Council. The past and current membership of the Council is available at http://www .ohchr.org/EN/HRBodies/HRC/Pages/Membership.aspx.

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Council with the support of a third of its members. The Council has a number of procedures for human rights implementation. The Universal Periodic Review (“UPR”) is a state-driven process, designed to periodically review the fulfillment by each UN Member State of its human rights obligations and commitments. The relevant Working Group of the Council conducts a comprehensive state review in a four-year cycle. The Working Group considers a wide range of sources for its review, including information prepared by the state under review, a compilation of UN information on the country under review, and a summary of submissions from the stakeholders including national human rights institutions, civil societies representatives, academic and research institutes. It meets in an intensive two-week session that is held three times every year. Along with the UPR, various mechanisms are also available under the mandates of the Council, including the Special Procedures, the Complaint Procedure and the Advisory Committee, as well as the Open-ended Working Group on the Right to Development, the Expert Mechanism on the Rights of Indigenous Peoples, and many more. The “Special Procedures”386 are tools originally created by the then-Commission on Human Rights to address either specific country situations or thematic issues in all parts of the world. The OHCHR provides the personnel, logistical and research assistance to this end. As of March 2015, there are fourteen country mandates and 41 thematic mandates. Independent human rights experts appointed by the Council carry out particular mandates under the Special Procedures process. They work individually as a “Special Rapporteur,” “Special Representative of the SecretaryGeneral,” “Representative of the Secretary-General,” or “Independent Expert.” The “Complaint Procedure”387 of the Council addresses communications submitted by individuals, groups or NGOs that claim to be victims of human rights violations or that have direct and reliable knowledge of such violations. Created by the Human Rights Council Resolution 5/1, this procedure is designed to respond to the consistent patterns of gross and reliably attested violations of all human rights occurring in any part of the world. The Advisory Committee of the Human Rights Council replaced the former Sub-Commission on the Promotion and Protection of Human Rights that existed under the supervision of the Commission on Human Rights. The 386  A brief overview on the Special Procedures under the supervision of the Human Rights Council is found at http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx. 387  A general introduction on the Complaint Procedures of the Human Rights Council is available at http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRC ComplaintProcedureIndex.aspx.

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Advisory Committee is made up of 18 individual experts proportionally representing the various regions of the world. It plays a consultative role for the Council, providing expert advice and undertaking research at the direction of the Council. The Committee meets in two sessions for a maximum of ten working days each year, with the possibility of additional ad hoc sessions with the HRC’s approval. The Advisory Committee works with governments, national human rights institutions, NGOs and other civil society entities. NGOs are entitled to participate in the work of the Advisory Committee based on arrangements and practices observed by the ECOSOC Resolution 1996/3. The OHCHR is a separate entity from the Human Rights Council. It is a part of the UN Secretariat and assumes a wide range of roles for international human rights protection. The OHCHR performs numerous tasks to protect human rights prescribed by the UN Charter. It provides logistical, administrative and substantive supports for the work of other UN-based human rights mechanisms. It also conducts comprehensive research on various human rights issues and enhances communications between member States. The High Commissioner for Human Rights, the head of the OHCHR, independently functions according to a separate mandate of the General Assembly.388 2.1.1 International Bill of Rights Adopted by the General Assembly Resolution in 1966, the ICCPR and ICESCR have provided a fundamental reference point for the international protection of human rights. These Covenants came into force in 1976 when a sufficient number of state parties had completed ratification; it took nearly 20 years to codify the basic principles of the UDHR in the form of legally binding treaty provisions.389 Human rights began to be invoked across the world, providing individual protections against the state and other participants of the international legal system.

388  U N GA Resolution 48/141, High Commissioner for the Promotion and Protection of all human rights, U.N. Doc. A/RES/48/141 (Dec. 20 1993); originally, during the 1993 Vienna Conference on Human Rights, there was ongoing discussion about the creation of the post of the High Commissioner for Human Rights. Subsequent to the conclusion of this Conference, the General Assembly established a relevant working group to continue examining this plan. At the end of the same year, the General Assembly adopted the Resolution setting out various aspects concerning the work of High Commissioner for Human Rights. Vienna Declaration (1993), para. 18. 389  It was not until the late 1970s that human rights became a significant force in international relations. Samuel Moyn, The Last Utopia: Human Rights in History (The Belknap Press of Harvard University Press, 2010).

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Both Covenants have substantive sections that prescribe different individual rights, as well as an administrative part that lays down a structure for monitoring state practices and implementing rules of the treaties. Nearly every state is now party to at least one human rights convention; 168 states have ratified the ICCPR and the ICESCR has been ratified by 164 states as of December 2015. 2.1.1.1

Rules and Institutions under the ICCPR

Article 2 clearly indicates the binding nature of obligations imposed by the ICCPR.390 States parties are obliged to fulfill their duties under the Covenant immediately on ratification. Pursuant to Article 3, a person is entitled to an effective remedy for a violation of the rights prescribed in the ICCPR. The Covenant places legal obligations on states parties to protect the right to self-determination (Article 1), the right to life (Article 6), prohibition against torture and slavery (Articles 7 and 8), the right to liberty and security of the person (Article 9), the right to liberty of movement (Article 12), the right to fair and public trial by independent tribunal established by law (Article 14), freedom of thought, conscience and religion (Article 18), freedom of association (Article 22). The ICCPR is accompanied by two Optional Protocols. The first Optional Protocol is concerned with the right of individual petition. The Second Optional Protocol has the specific objective of abolishing the death penalty, reinforcing Article 6 of the right to life. The current ICCPR system offers four modes of implementation. The Human Rights Committee (“CCPR”) has a primary responsibility of facilitating this process of implementing rules of the ICCPR. First, in accordance with Article 40(4), the CCPR is entitled to provide “General Comments” to state parties.391 The Rapporteur for a General Comment is a member of the Committee with a primary responsibility of drafting. Interpreting particular articles of the Covenant, the General Comments clarify the scope and contents of rules in the ICCPR. Beginning from 1981, General Comments dealt with a range of treaty provisions such as the right to life, the rights of the Child, non-discrimination, and rights of minorities. It also elaborated on the states’ obligations under the first Optional Protocol to the ICCPR. In relation to the individual complaints procedure available under the first Optional Protocol, the Committee frequently referred to its

390  Article 2(1) of the ICCPR provides that each state party undertakes to “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant.” 391  I CCPR Article 40(4).

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experiences with individual communications in providing General Comments when it sees relevance.392 The second means of ICCPR implementation is a reporting procedure and a corresponding Concluding Observation.393 According to Article 40(1), states parties “undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights.” The ICCPR requires its parties to report regularly on the steps they have taken to implement obligations under the treaty and to identify difficulties in implementation. States are required to submit an initial report, usually one year after joining a treaty, and are then required by the provisions of the treaty to submit periodic reports thereafter, generally every four or five years.394 The reports are supposed to follow a general reporting guideline set up by the Committee.395 The CCPR then examines these periodic reports presented by states and submits a written concluding observation in which they review whether or not the state concerned was acting in conformity with its treaty obligations. The “Concluding Observation” contains comments on the state party’s implementation of the convention and recommendations for the identified areas of concerns. The Committee considers other relevant information received from other sources, including nongovernmental organizations, UN agencies, academic institutions, and the press. Civil society groups may also compile a so-called “shadow report” providing an alternative perspective on states’ implementation of obligations under the ICCPR. Thirdly, the CCPR may hear inter-state complaints as provided under Articles 41 and 42 of the ICCPR.396 To initiate this inter-state process, both the complainant state and the respondent state must have made a declaration to 392  Tomuschat (2008), at 190. 393  U N Human Rights Committee, General Comment No. 30: Reporting Obligations of States parties under article 40 of the Covenant, U.N. Doc. CCPR/C/21/Rev.2/Add.12 (2002); Ineke Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights— practice and procedures of the Human Rights Committee, (Intersentia, 1999). 394  Office of the United Nations High Commissioner for Human Rights, Human Rights Treaty Bodies, http://www2.ohchr.org/english/bodies/treaty/index.htm (“Human Rights Treaty Bodies”). 395   Human Rights Committee, Consolidated guidelines for State reports under the International Covenant on Civil and Political Rights, (CCPR/C/66/GUI/Rev.2.) (available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.66.GUI.Rev.2.En?Opendocument). 396  The Human Rights Committee, in its General Comments, encouraged States parties to use this inter-state complaint procedure. HRC, General Comments No. 31, The Nature of the General Legal Obligations imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/ Add.13 (May 26, 2004), para. 2.

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accept the procedure. According to Article 41(1)(e), the CCPR is first asked to resolve the interstate dispute through good office. It is required to produce a written report within 12 months from the date of receipt of complaint notice. However, if the matter is not resolved in an amicable manner, Article 42 applies and the Committee may appoint an ad hoc Conciliation Commission consisting of five experts.397 While the Conciliation Commission can make recommendations, these are not legally binding on the parties. The inter-state complaints procedure has not been used; the legal significance of the interstate complaint under the ICCPR system is substantially limited. Nevertheless, this procedure still leaves a possibility for a state party to complain before the Committee about another state’s violation of the ICCPR provision. Finally, under the first Optional Protocol to the ICCPR, the CCPR is authorized to receive individual communication from individuals claiming the violation of the Covenant rights by states that have ratified such procedure.398 Article 1 of the Optional Protocol observes that the Committee may receive and consider communications from individuals subject to the states party’s jurisdiction claiming to be victims of a violation of any rights in the Covenant committed by that State Party. The Optional Protocol is not compulsory; its individual claim procedure is optional and communications may only be received if they relate to a state party to the Protocol. In accordance with Article 5 (4) of the Optional Protocol, the Committee then concludes its findings regarding the possible violation for the case under consideration, which are communicated to the plaintiff and the state in question. If the Committee finds a violation of the rights provided by the treaty, it requests the respondent state to provide adequate remedy for the violation. Since 1977, the CCPR has received more than 1800 communications concerning 83 states parties. In 2009, the Committee issued 681 views, 542 of which found a breach of the ICCPR.399 2.1.1.2

Rules and Institutions under the ICESCR

The primary focus of the ICESCR is reflected in the economic, social and cultural rights (“ESC rights”) as expressed in Articles 22–27 of the UDHR. The rights protected by the ICESCR include, but are not limited to the right to work (Article 6), the right to social security (Article 9), the right to food (Article 11), 397  Parties to the dispute must give consents on this matter. 398  Article 1 of the Optional Protocol provides that the Committee may take the communications from individual subject to the State party’s jurisdiction “who claim to be victims of a violation by the State Party of any of the rights set forth in the Covenant.” 399  U N GA, Report of the Human Rights Committee, 1 January 2009, UN Doc. A/64/40, vol. I, Supp. (No. 40), para. 99.

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the right to health (Article 12), and the right to education (Article 13). There was a great degree of disagreement between Western countries and socialist states with respect to the compensation for expropriations. As a result, the right to property was intentionally omitted in both human rights Covenants.400 One of the main differences between the ICCPR and the ICESCR is found in the nature of the legal obligations on the part of ratifying states. The ICESCR identifies two features of obligations under the treaty: the principle of progressive realization and the recognition of finite resources. Article 2 of the ICESCR urges state parties to undertake steps toward “progressive realization” of the rights recognized in the Covenant; each state party has an obligation to take all appropriate steps “including particularly the adoption of legislative measures” with a view to achieving the full realization of the rights enshrined in the ICESCR.401 At the same time, the Covenant acknowledges a varying availability of resources, which limits a state’s ability to take appropriate steps for implementation. The Committee on Economic, Social and Cultural Rights (“CESCR”) interprets this provision in the General Comment 3. In its view, states parties are required to take “deliberate, concrete and targeted” steps “through international assistance and cooperation, especially economic and technical” towards full realization of rights expressed in ICESCR.402 According to the CESCR in its General Comment 9, “a state party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not ‘appropriate means’ within the terms of Article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights.” However, the standard of progressive realization has been criticized since its creation. As argued by the Hungarian representative during the preparatory sessions for the adoption of the ICESCR, this term can allow states parties to postpone implementation of their treaty obligations “to an indefinite time in the distant future.”403 Initially, no separate treaty body was envisioned to implement and enforce the ESC rights under the ICESCR: the Covenant merely stipulated a general 400  Cassese (2005), at 382–383. 401  Philip Alston & Gerard Quinn, The Nature and Scope of State Parties’ Obligations under the International Covenant of Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 156 (1987). 402  C ESCR, General Comment No. 3, The Nature of State Parties Obligations, UN Doc. E/1991/23 (14 December 1990), para. 13. 403  Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Human Rights Law: Six Decades after the UDHR and Beyond 58 (Mashood A. Baderin & Manisuli Ssenyonjo eds., Ashgate, 2013)(quoting paragraph 9 of the UN GA Resolution, UN Doc. a/2910/Add.6 (1955)).

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mandate of monitoring to the ECOSOC. In the absence of specific treaty body, comparable to the Human Rights Committee in the ICCPR, the International Conference on Human Rights of 1968, held in Teheran, urged state governments to focus “on developing and perfecting legal procedures for the prevention of violations and defence of economic, social and cultural rights.”404 Decades later in 1985, the ECOSOC finally established the CESCR and delegated its supervisory functions to this newly established treaty body.405 The CESCR consists of 18 independent experts, monitoring state compliance with the ICESCR. The Committee held its first session in 1987. It has produced authoritative interpretation and application of provisions in the forms of “General Comments”. General Comments are not legally binding, but are highly relevant in examining the scope and contents of rights under the ICESCR. All states parties are required to submit regular reports to the Committee on how the rights and obligations are being implemented in the domestic system. However, the CESCR could not carry out an extensive and more in-depth inquiry into the real problems confronting specific individuals and groups: the implementation of ESC rights was neglected due to the limited enforcement methods available (limited, that is, in comparison with the ICCPR). The CESCR had long advocated the establishment of communications procedures similar to the existing individual and inter-state complaints procedure in ICCPR.406 Many scholars also recognized the need to strengthen the supervision of the ICESCR by providing this procedure.407 In 1993, encouraged by the discussions made during the Vienna Conference on Human Rights in that 404  Final Act of the International Conference on Human Rights (United Nations Publication, Sales No. E.68. siv.2) Resolution XXI, para. 6. 405  In 1978, the ECOSOC established a Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, to assist ECOSOC in the consideration of reports submitted by the States parties (ECOSOC Decision 1978/10 of May 3, 1978). The composition of the Sessional Working Group was altered in 1982 (ECOSOC Resolution 1982/33 of May 6, 1982), and later it was reconstituted according to the model of the treaty bodies and then replaced by a committee of independent experts, “Committee on Economic, Social and Cultural Rights”. (ECOSOC resolution 1985/17 on May 28, 1985); see generally, on the background to the creation of the CESCR, Philip Alston, Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social, and Cultural Rights, 9 Hum. Rts. Q. 332, 335–349 (1987). 406  C ESCR, Towards an Optional Protocol to the ICESCR, UN Doc. E/1993/22. 407  See generally, Claire Mahon, Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 8 Hum. Rts. Rev. 617 (2008); Alston & Quinn (1987).

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same year, the first draft Optional Protocol was submitted based on the first Optional Protocol to the ICCPR.408 The Human Rights Council finally adopted the Optional Protocol to the ICESCR by consensus in June 2008; the Optional Protocol was subsequently recognized by the General Assembly in December 2008, in celebration of the UDHR’s 60th anniversary.409 Navanethem Pillay, the UN High Commissioner for Human Rights, welcomed the Optional Protocol to the ICESCR by saying that it “is of singular importance . . . closing a historic gap in human rights protection under the international system.”410 The General Assembly recommended that the Optional Protocol would be opened for signature at a signing ceremony to be held in 2009. It was ultimately entered into force in May 2013. The Optional Protocol to the ICESCR enables states parties to accept additional implementation procedures, providing multiple modalities of enforcing ESC rights. It grants the CESCR competence to hear complaints brought by individuals claiming violations of Covenant rights enshrined in the ICESCR. While the adoption of the Optional Protocol is expected to enhance a practical significance of ESC rights, it is too soon to determine its impacts in terms of whether the individual complaints procedure under the Optional Protocol could effectively make states’ obligations to enforce ESC rights justiciable.411 A good deal of ambiguity persists regarding the nature and scope of ESC rights as well as how they might be enforced. The Optional Protocol also provides a procedure for inter-state complaints. While the ICESCR mirrors Article 41 of the ICCPR with respect to rules concerning individual and interstate complaints, the ICESCR has an inquiry procedure that does not exist in the ICCPR. An inquiry procedure can be established in situations that appear to constitute a consistent pattern of growing or systematic violations of ESC rights within a state party. Pursuant to Article 5 of the Optional Protocol, the CESCR may request the state involved in the procedure to take interim measures if victims of alleged violations face possible “irreparable damage.” Nonetheless, such requests are allowed only in 408  C ESCR, Contributions Submitted by the Committee on Economic, Social and Cultural Rights, Mar. 26, 1993, UN Doc. A/CONF.157/PC/62/Add.5. 409  U N GA Resolution 63/117, UN Doc. A/RES/63/117 (Dec. 10, 2008). 410  Statement by the High Commissioner for Human Rights, Ms. Navanethem Pillay, Official Records, 65th Plenary meeting, U.N. Doc. A/63/PV. 66 (Dec. 10, 2008). 411  Malcolm Langford, Closing the Gap?—Introduction to the Optional Protocol to the International Covenant on Economic, Social, Cultural Rights, 27 Nordic J. Hum. Rts. 1, 12 (2009) (quoting Christian Tomuschat, An Optional Protocol for the International Covenant on Economic, Social and Cultural Rights, 815).

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“exceptional circumstances.” When the CESCR receives “reliable information indicating grave or systematic violations” of the Covenant rights, it can initiate measures according to the inquiry procedure. 2.1.2 Various UN Human Rights Arrangements There has been a gradual increase in the number of multilateral human rights instruments and their optional protocols. On top of two Human Rights Covenants, more specialized forms of human rights treaties have emerged adding new rights or addressing matters of concerns on behalf of specific vulnerable groups: the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”),412 the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) and its Optional Protocol of 1999,413 the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and its Optional Protocol of 2002,414 the 1989 Convention on the Rights of the Child (“CRC”),415 the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (“ICRMW”),416 the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (“CPED”)417 and the 2006 Convention on the Rights of Persons with Disabilities (“CRPD”).418 The OHCHR has identified two Covenants adopted in 1966, seven specialized human rights treaties, and the Optional Protocol to the CAT as constituting

412  International Convention on the Elimination of All Forms of Racial Discrimination, UN GA Resolution 2106 (XX), adopted Dec. 21, 1965, entered into force Dec. 23, 2010, UN doc. A/61/488. 413  Convention on the Elimination of All Forms of Discrimination against Women, UN GA Resolution 34/180, adopted Dec. 18, 1979, entered into force Sept 3, 1981, 1249 U.N.T.S. 13. 414  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, entered into force Jun. 26, 1987, 1465 U.N.T.S. 85. 415  Convention on the Rights of the Child, adopted Nov. 20, 1989, entered into force Sept. 2, 1990, 1557 U.N.T.S. 3. 416  International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, UN GA Resolution 45/158, adopted Dec. 18, 1990, entered into force Jul. 1, 2003, 2220 U.N.T.S. 3. 417  International Convention for the Protection of All Persons from Enforced Disappearance, UN GA Resolution 61/177, adopted Dec. 20, 2006, 660 U.N.T.S. 195. 418  Convention on the Rights of Persons with Disabilities, UN GA Resolution 61/06, adopted Jan. 24, 2007, entered into force May 3, 2008, 2515 U.N.T.S. 3.

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normative core of the UN human rights system.419 Like the ICCPR and ICESCR, rest of the core human rights treaties are equally binding on states that ratified or acceded to these legal instruments. Each human rights arrangement creates a separate supervisory body in the form of special committees or treaty bodies, monitoring state compliance with the treaty. These bodies have been entrusted with the task of supervising the manners in which states parties abide by their treaty obligations. Under the current system of UN human rights protection, ten treaty bodies have been created as stipulated by the relevant human rights treaties. – The Committee on the Elimination of Racial Discrimination (CERD) established in 1970, the first treaty body to be established; – The Human Rights Committee (CCPR), created in 1977 to monitor implementation of the ICCPR; – The Committee on Economic, Social and Cultural Rights (CESCR), established in 1985 to monitor implementation of the ICECR; – The Committee on the Elimination of Discrimination against Women (CEDAW), which has monitored implementation of the CEDAW by its States parties since its inception in 1982; – The Committee against Torture (CAT), created in 1987 to monitor implementation of the Convention against Torture; – The Committee on the Rights of the Child (CRC), instituted in 1991 to monitor implementation of the CRC and its two Optional Protocols; – The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, which established in 2004 and held its first session in that same year to monitor implementation of the ICRMW; – The Committee on the Rights of Persons with Disabilities (CRPD), created in 2008 under the CRPD; 419  The Office of the High Commissioner for Human Rights has identified the complete list of core human rights instruments at http://www.ohchr.org/EN/ProfessionalInterest/Pages/ CoreInstruments.aspx; in addition, more information about individual human rights treaties and treaty bodies is found at the OHCHR fact sheets. The fact sheets No. 10 on the Rights of the Child, No. 12 on the committee on the Elimination of Racial Discrimination, No.15 on the Civil and Political Rights, No. 16 on the Committee on Economic, Social, and Cultural Rights, No. 17 on the Committee against Torture, No. 22 on the Discrimination against Women: The Convention and the Committee, No. 24 on the International Convention on Migrant Workers and its Committee, No. 30 on the United Nations Human Rights Treaty System: An Introduction to the core human rights treaties and the treaty bodies, and finally, No. 7 on the Complaint Procedures. These documents are available at http://www.ohchr.org/EN/PublicationsResources/Pages/ArchivesFS.aspx.

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– The Sub-committee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), created under the Optional Protocol to the Convention Against Torture (OPCAT) in 2006; and – The Committee on Enforced Disappearances (CED), adopted in 2006. 2.1.3 Works of UN Human Rights Treaty Bodies The implementation of core international human rights treaties is monitored by respective treaty bodies.420 Human Rights treaty bodies establish committees of independent experts, with a membership ranging from 10 to 25. Members of the committees are selected in consideration with the equitable geographic distribution and adequate representation of different legal systems and cultures. Members are nominated and elected by the states parties to the respective treaty from among their nationals for a renewable four years. However, members serve in their individual capacities. Entrusted with a range of responsibilities, treaty bodies play an essential role in facilitating human rights protection at the domestic level. First, one principal function of the human rights treaty bodies is to conduct systematic reviews of the reports submitted by states parties. All treaty bodies, except the SPT may receive and consider reports submitted periodically by state parties. States parties have treaty obligations to submit regular reports to the relevant treaty bodies on how the rights are implemented at domestic level. Their reports comprehensively examine existing domestic human rights law and policies, as well as monitor national progress achieved in the enjoyment of the rights as expressed in the respective treaties. The state compliance with their reporting obligations has not been satisfactory. In the words of the High Commissioner, Currently, [. . .] only 16% of States parties report on time; and even with this low compliance rate, four out of nine treaty bodies with a reporting procedure are facing significant and increasing backlogs of reports awaiting consideration.421 Upon the receipt of state reports, treaty bodies engage in a constructive dialogue with states parties. In this process of considering state reports, treaty bodies may also receive relevant information from other intergovernmental 420  The list of specific human rights treaty bodies is summarized by the previous sub-section. 421  Report of the United Nations High Commissioner for Human Rights on the strengthening of the human rights treaty bodies pursuant to Assembly resolution 66/254, GA/66/860, Jun. 26, 2012, p. 9.

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organizations and NGOs. The examination of implementation of the treaty by each state party finally culminates in the adoption of “Concluding Observations” by treaty bodies. Concluding Observations not only assess states’ conformity with their treaty obligations, but also provide practical advice and recommendation in furtherance with the better implementation of the treaty in question. Secondly, except in the case of the SPT, all other treaty bodies listed in the foregoing have specific provisions with respect to General Comments. General Comments are the “means by which a UN human rights expert committee distils its considered views on an issue which arises out of the provisions of the treaty whose implementation it supervises and presents those views in the context of a formal statement of its understanding to which it attaches major importance.”422 Members of treaty bodies may suggest a topic of the General Comments. General Comments cover a wide range of subject matters.423 By publishing these instruments, treaty bodies may provide a concrete guidance with respect to interpretation of specific articles of the treaties. General Comments may also deal with more general human rights concerns such as the role of national human rights institutions, violence against women and the rights of minorities. The CERD and the CEDAW use the term “General Recommendation” rather than General Comments. While adopted under different names, in substance, both documents serve the same purpose. Some human rights treaty bodies go further and carry out additional functions. States may submit complaints to the relevant UN treaty bodies claiming the violation of obligations committed by another party in accordance with Articles 41–43 of the ICCPR, Article 10 of the ICESCR Optional Protocol, Articles 11–13 of the CERD, Article 32 of the CPED, Article 21 of the CAT, Article 76 of the CMW. The inter-state complaint procedure applies only to parties who have explicitly accepted the competence of the Committee to hear such claims, except for the case of ICERD; all parties to the ICERD can apply for such procedure.424 Inter-state complaint may be a less effective way of protecting human rights because states may be more hesitant to bring a case against another state due to political considerations. Individuals

422  Philip Alston, The Historical Origins of the Concept of “General Comments” in The Inter­ national Legal System in Quest of Equity and Universality: Liber Amicorum Georges AbiSaab 764 (Laurence de Boisson de Chazournes & Vera Gowland-Debbas eds., Martinus Nijhoff Publishers, 2001). 423  Alston (2001), at 764. 424  The inter-state complaint mechanism of this type has never been used.

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may have more direct and greater interests in seeking redress for violations of their own rights. Seven of the core UN human rights treaties have introduced special provisions for hearing individual complaints of human rights violations. The individual complaints procedure is “a natural extension of the measures prescribed for the implementation of human rights.”425 Under the respective procedure, treaty bodies have a decision-making authority to adopt findings in disputes between an individual and a respondent state. Treaty bodies can also adopt interim measures in urgent cases to preserve a situation until they can make a final decision on the matter in question. They are not designated courts; their final decisions are termed, views, rather than judgments or rulings. The complaints procedure is available for individuals pursuant to the first Optional Protocol to ICCPR, the Optional Protocol to the CEDAW, Article 22 of the CAT, Article 14 of the CERD, Optional Protocol to the CRPD, Article 31 of the CED, the recently adopted individual complaints mechanism under the Optional Protocol to ICESCR. More than half of the parties to the ICCPR (115/168), the CEDAW (106/189), and the CRPD (86/160) have accepted the individual communications procedures. To initiate this process against the state, that state must recognize the treaty body’s competence in this regard. Some human rights treaty bodies may also initiate a procedure of inquiry upon receipt of reliable, well-founded indications of serious, grave, or systematic violations of the relevant conventions committed by a state party. As a general matter, a committee first invites the state party concerned to cooperate in the examination of the information. Based on that state’s observations and other relevant information available to it, a committee designates some of its members to make a confidential inquiry and report back to the committee. If state party agrees, the full inquiry and the party’s response may be publicly published. The inquiry procedure is stipulated in Article 8 of the Optional Protocol to the CEDAW, Article 20 of the CAT, Article 33 of the CED, and Article 6 of the CRPD Optional Protocol, Article 11 of the Optional Protocol to the ICESCR and Article 13 of the Optional Protocol to the CRC. With the exception of inquiries by the CED, inquires may be undertaken by the other committees only with regards to states parties that have additionally accepted their competence in this regard; states parties of the CPED automatically recognize the CED’s competence to initiate an inquiry procedure when they ratify the Convention.

425  Yogesh Tyagi, The UN Human Rights Committee: Practice and Procedure 386 (Cambridge University Press, 2011).

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For instance, under Article 20 of the CAT, inquiries were conducted in the situations concerning Turkey (1994), Egypt (1996), Peru (2001), Sri Lanka (2002), Mexico (2003), Serbia and Montenegro (2004), Brazil (2008), Nepal (2012), and most recently, Lebanon (2014). The inquiry procedure under the CAT is a confidential process. The Committee initiates the inquiry upon the receipt of reliable information which appears to it to contain well-founded indications that torture is systematically performed in a state party. 2.2 Regional Human Rights Protection Mechanisms Regional and sub-regional human rights regimes have developed their own systems of human rights protection. The oldest and strongest regional human rights regime was developed under the European system. The Preamble of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) states that the Convention is a first step toward collective European enforcement of certain rights prescribed in the UN Declaration. The Convention was entered into force in September 3 1953.426 It stipulates a wide range of civil rights and shares similarities with the UDHR as well as the International Human Rights Covenants. The Convention not only enjoys completeness as a regional legal regime but also has pervasive influence on the domestic human rights practices in Member States. The European Court of Human Rights (“ECtHR”) established in 1959 has jurisdiction over the complaints brought by individuals, claiming the respondent state’s violation of his or her rights under the Convention.427 The decision-making authority conferred on the ECtHR has been unprecedentedly powerful and wide-ranging. National compliance with the decisions of the ECtHR has also been higher than any other regional human rights arrangements. Nevertheless, if the Court finds a state to be in violation of the ECHR, that state is still left with much discretion as to how to change its laws or procedures to comply with the decisions of the Court. The American Convention on Human Rights was adopted in 1969.428 While its scope of consideration is limited to civil and political rights, the

426  Convention on the Protection of Human Rights and Fundamental Freedoms, adopted in Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 221. 427  Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, Nov. 4, 1950, ETS 5. 428  American Convention on Human Rights, adopted in Nov. 22, 1969, entered into force Jul. 18, 1978, 1144 U.N.T.S. 123.

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covered rights are basically similar to rights proclaimed by UDHR.429 The InterAmerican Court of Human Rights was inaugurated once the Convention entered into force in 1978. The impact of the Court’s decisions is relatively weaker than its European counterpart. The Court may also issue advisory opinions requested by members of the Organization of American States (“OAS”). Meanwhile, almost twenty years before the Court, the Inter-American Commission of Human Rights was established. The Commission is entrusted with a range of tasks including making recommendations to governments, developing human rights awareness in the region, and conducting on-site investigations with the consent of the government. Human rights protection has been one of the most widely discussed topics in the process of regional integration in different parts of African continent; many African states have taken up numerous efforts to enhance human rights in the region. The Organization of African Unity (“OAU”), the predecessor of the African Union (“AU”) adopted the African Charter on Human and Peoples’ Rights in Nairobi in 1981.430 While the Charter envisions similar rights expressed in the UDHR and other human rights treaties, there are interesting differences. The African Charter places a strong emphasis on collective rights (Articles 19–24), specifically concerning rights to peace and development. It also prescribes certain obligations of individual to the state and family (Articles 27–29). The African Commission on Human and Peoples’ Rights is established according to Articles 30 to 46 of the Charter. Although theoretically, the Commission can receive interstate complaints and individual communications, its process is rather vaguely structured. The African Court of Human and Peoples’ Rights (“AfCHPR”), the largest human rights court in the region was established in 2004 by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Court is currently seated in Arusha, Tanzania. As of 2015, 27 out of 54 Member States of the African Union have ratified and become parties to the Court. The Court has both contentious and advisory jurisdiction: under Article 3 of the Protocol, it has jurisdiction to deal with disputes regarding the interpretation and application of the Charter, the Protocol and any other relevant human rights instruments ratified by the states. Member states, the African Commission of Human and Peoples’ 429  Nevertheless, the right to property is included in the Convention. Jochen Frowein, The European and the American Convention on Human Rights—A Comparison, 1 Hum. Rts. L. J. 44, 44–45 (1980). 430  African Charter on Human and Peoples’ Rights, adopted in Jun. 26, 1981, entered into force Oct. 21, 1986, 1520 U.N.T.S. 217.

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Rights,431 and African inter-governmental organizations may file applications against the states. As of today, Burkina Faso, Ghana, Malawi, Mali, Tanzania and Rwanda have recognized the form of individual applications. The Court rendered its first judgment in 2009 but here, the application against Senegal was found inadmissible. Most recently, in 2014, it ruled against Burkina Faso in a case brought by the family of the deceased journalist over freedom of expression and the rights of journalist to practice his or her vocation without intimidation or the fear of death.432 Under Article 4 of the Protocol, the Court provide an advisory opinion any legal matter relating to the Charter or other relevant human rights agreements at the request of a Member State of the AU, any organs of the AU, or any African organization recognized by the AU. The primary functions of the AfCHPR include, but are not limited to, rendering decisions on the cases brought before them, providing authoritative interpretation of the Charter provisions, and conducting human rights-related studies. Several sub-regional tribunals in the African continent have also asserted their authorities to adjudicate human rights claims. The Community Court of Justice of the Economic Community of West African States (“ECOWAS”) is an increasingly active adjudicator in the human rights field.433 The ECOWAS has rendered numerous decisions against human rights violations committed by the member States of the Economic Community of West African States. Fifteen states in the region are currently members of ECOWAS: they are Benin, Burkina Faso, Cape Verde, Côted’Ivoire, the Gambia, Ghana, Guinea, GuineaBissau, Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo. Sub-regional economic communities in East and Southern Africa have occasionally addressed human rights issues, along with the various legal matters

431  The Commission consists of eleven members elected by the Assembly of the African Union at the nomination by the parties to the African Charter on Human and Peoples’ Rights. 432  This ACHPR judgment against Burkina Faso is found at www.african-court.org/en/index .php/22-recient-judgements/439-application-no-013-2011; a brief introduction of the background to this case is provided by Ramata Sore, The Murder of Norbert Zongo: A History of investigative journalism in Burkina Faso, Reuters Institute Fellowship Paper, available at http://reutersinstitute.politics.ox.ac.uk/sites/default/files/The%20Murder%20of%20 Norbert%20Zongo%20-%20A%20history%20of%20investigative%20journalism%20 in%20Burkina%20Faso.pdf. 433  See generally, Karen J. Alter, Laurence R. Helfer & Jacqueline R. McAllister, A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 107 Am. J. Int’l L. 737 (2013).

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concerning economic integration in the region.434 The Common Market for Eastern and Southern Africa (“COMESA”) was established in 1994, aimed at regional integration in all fields of development. It seeks to regulate various areas of trade, customs, and transportation, as well as issues of gender and environment. Although human rights considerations are not at the center of COMESA’s mandates, COMESA contains provisions that clearly have strong implications for human rights. The Treaty of the East African Community (“EAC”) entered into force in July 2000.435 The East African Court of Justice, consisting of the six judges appointed by the Summit of the EAC have made some promising moves to promote human rights in the context of economic development. The work of the Southern African Development Community (“SADC”) Tribunal is relevant for human rights protection in the region. The SADC was established in 1992 to promote economic and political cooperation among 15 southern African member States. It is also committed to eradicating poverty within Southern Africa through economic development. The SADC Summit, empowered to adopt a protocol to create a SADC Tribunal, prepared legal rules concerning the functions, procedures, and other features of the Tribunal. The SADC Tribunal was inaugurated in 2001 pursuant to Article 3 of the Protocol of the Tribunal and the Rules of Procedure. The Tribunal became operational in 2005 with the election of judges. While human rights protection is not explicitly included in the SADC’s agenda of SADC, the SADC Tribunal frequently considers human rights implications in interpreting treaty provisions. Article 4(c) of the SADC Treaty, a founding instrument of the Tribunal notes that human rights, democracy and the rule of law are fundamental principles of SADC. Along these lines, in Mike Campbell (Pvt) Limited and Another v The Republic of Zimbabwe, the Tribunal also held that the “SADC as a collectivity and as individual member states are under a legal obligation to respect and protect human rights of SADC citizens.”436 Meanwhile, no comparable adjudication bodies currently exist in the AsiaPacific and Middle East region.

434  Solomon T. Ebobrah, Litigating Human Rights Before Sub-regional Courts in Africa: Prospects and Challenges, 17 African J. Int’l & Comp. L. 80 (2009). 435  The constitutive treaty of the EAC is available at http://www.eac.int. 436  Mike Campbell v. Zimbabwe, SADC (T), 2/2007, para. 84.

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2.3

Features of the Development in International Human Rights Regime This section closely examines four features identified as key elements in the development of the international human rights regime. 2.3.1 Interdependence and Universality of Human Rights According to Article 2 of the UDHR, all rights are interdependent and equal in importance. The subsequent practices, however, failed to realize these ambitions: as explored in the foregoing, attempts to draft a single Covenant covering all kinds of fundamental human rights were found unsuccessful in the context of the East-West ideological divide among Member States.437 Civil and political rights on the one hand and economic, social and cultural rights on the other took a separate path of development, leading to the adoption of two separate Human Rights Covenants, the ICCPR and ICESCR. Many attempts were made to overcome this bifurcated understanding of rights. An important breakthrough was made at the Vienna World Conference on Human Rights in 1993, nearly thirty years after the adoption of the two Covenants.438 The Vienna Declaration and the Programme of Action reaffirmed the basic principles of human rights protection, particularly stressing the interdependence of all human rights. Most significantly, the Vienna Declaration asserts that: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.439 (emphasis added)

437  It is a common understanding to attribute the bifurcated character of the two principal human rights treaties to the Cold War division. This point is discussed extensively in the preceding sub-section. 438  It was held that “all human rights are universal, indivisible, and interdependent and interrelated.” UN G.A., Vienna Declaration and Programme of Action, A/CONF.157/23 (Jul. 12, 1993), para. 5. 439  Ibid., para. 5.

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At the Vienna Conference participated by 173 states, the universal nature of basic human rights was declared as “beyond question.”440 Moreover, no right is superior to another and different rights should not be considered in isolation, since the enjoyment of one will often depend on the realization of another. Human rights treaties are widely recognized, enjoying nearly universal acceptance: almost every nation now is a party to at least one human rights treaty established under the auspices of the UN. South Sudan is a notable exception as it is not a party to any significant human rights arrangement as of this writing. As of 2015, an average of 170 states have ratified core human rights treaties concerning civil and political rights (ICCPR, 168), ESC rights (ICESCR, 162), racial discrimination (ICERD, 177), women’s rights (CEDAW, 188), the rights of the child (CRC, 194), the rights of persons with disabilities (CRPD, 147), and prohibition of torture (CAT, 155).441 Nevertheless, despite the universality of international human rights today, the level and the terms of state compliance with human rights treaties vary significantly depending on varying political, economic, and social conditions in domestic realm. 2.3.2 Legal Rights and Obligations International protection of human rights is no longer a moral imperative or abstract ideal: rights enshrined in major human rights treaties are concrete and legally enforceable.442 In the development of the international human rights regime, treaties certainly play the most critical role in human rights practice. Since World War II, direct incorporation of human rights conceptions into the basic instruments of international law has put various transnational activities under normative constraints derived from human rights law standards.443 The initial development was slow-paced and the normative relevance of international human rights was not accepted on an equal footing. 440  Ibid., para. 1. 441  There has been a sharp increase in the number of ratifications of core international human rights treaties during 1990s and 2000s. Jack Donnelly, International Human Rights: Universal, Relative or Relatively Universal? in International Human Rights Law: Six Decades after the UDHR and Beyond 33 (Mashood A. Baderin & Manisuli Ssenyonjo eds., Ashgate, 2013). 442  Nevertheless, the degree of enforceability and justiciability varies. For instance, while the civil and political rights are thought to be immediately applicable, social and economic rights only require states to implement in a progressive manner. 443  In this light, ICJ has recognized that all UN member states have a legal obligation to respect human rights under the UN Charter and under general international law. See for example, Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3 (Feb. 5), p. 32; Case Concerning Military and Paramilitary Activities in and against

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As Lauterpact notes, “the vindication of human liberties does not begin with their complete and triumphant assertion at the very outset.” Rather, in his view, “it commences with their recognition in some matters, to some extent, for some people, against some organ of the State.”444 Human rights treaties are legal instruments that set international standards for promoting and protecting human rights. These international agreements provide legally binding rights, the breach of which leads to international responsibility. Human Rights treaties also impose binding legal obligations on the state once that state expresses its consent to be bound by a human rights treaty under international law, by an act of ratification, accession or succession, and when the treaty has entered into force. States have legal obligations to enact laws and adopt relevant policies to adhere to international human rights treaties, as international human rights regime is meant to give effects in domestic legal system.445 States cannot invoke the provisions of the domestic law to justify failures to adhere their treaty obligations.446 The expected normative effects of the treaties are differently conceived in the context of ICESCR as compared to ICCPR: a clear difference exists in the nature of states parties’ obligations under the ICCPR and ICESCR. As examined earlier, Article 2(1) of the ICESCR merely calls for the progressive realization of the economic, social and cultural rights. The potential intrusion into the state’s regulatory prerogative can be more expansive in the case of ESC rights: ESC rights require states to allocate domestic resources in certain ways to meet the legal standards under the ICESCR, whereas civil and political rights primarily give rise to negative obligations, which merely require States to refrain from interfering with the enjoyment of individual freedoms. The ESC rights entail a more positive obligation to adopt specific measures on the part of the states. While their immediate implementation is not mandatory as a general matter, the CESCR has repeatedly noted that some ICESCR rights give rise to immediate effects. In the General Comment 13, the CESCR observes: The prohibition against discrimination enshrined in article 2(2) of the Covenant is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 14 (Jun. 27), p. 114. 444  Lauterpacht (1945), at 9–10. 445  See CESCR, General Comment No. 9: The Domestic Application of the Covenant. UN Doc. E/C.12/1998/24, Dec. 3, 1998. 446  V CLT Article 27.

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education and encompasses all internationally prohibited grounds of discrimination.447 Hence, states cannot justify measures that, for example, provide primary education to boys immediately but claim to extend such policy to girls in a progressive manner at a later time. Further, every ICESCR right has a “minimum core” content which allows right-holders to enjoy the core entitlements with immediate effect as well as giving rise to corresponding core state obligation.448 In this relation, member states have a core obligation to ensure the satisfaction of minimum levels of each right enumerated in the ICESCR. The CESCR has elaborated the meaning of minimum core obligations in a series of General Comments concerning the Plans of Action for primary education (Article 14),449 the right to education (Article 13),450 the right to the highest attainable standard of health (Article 12),451 the right to water (Articles 11 and 12),452 the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Article 15, paragraph 1(c)),453 the right to work (Article 6),454 the right to social security (Article 9),455 the right of everyone to take part in cultural life (Article 15, paragraph 1(a))456 Among them, in the General Comment 14, 447  C ESCR, General Comment No. 13: The Right to Education (Art. 13 of the Covenant), E/C.12/1999/10, Dec. 8, 1999, para. 31. 448  C ESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1 of the Covenant), E/1991/23(SUPP), Dec. 14, 1990, para. 10. 449  C ESCR, General Comment No. 11: Plans of Action for Primary Education (Art. 14 of the Covenant), E/C.12/1999/4, May 10, 1999, para. 7. 450  C ESCR, General Comment No. 13, para. 57. 451  C ESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), E/C.12/2000/4, Aug. 11, 2000, para. 43. 452  C ESCR, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), E/C.12/2002/11, Jan. 20, 2003, para. 37. 453  C ESCR, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting form any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1(c) of the Covenant), E/C.12/ GC/17, Jan. 12, 2006, para. 39. 454  C ESCR, General Comment No. 18: The Right to Work (Art. 6 of the Covenant), E/C.12/ GC/18, Feb. 6, 2006, para.31. 455  C ESCR, General Comment No. 19: The Right to Social Security (Art. 9 of the Covenant), E/C.12/GC/19, Feb. 4, 2008, para. 59. 456  C ESCR, General Comment No. 21: Right of Everyone to take part in cultural life (Art. 15, para. 1(a) of the Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, Dec. 21, 2009, para. 55.

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the CESCR strongly asserted that the State party cannot “under any circumstances whatsoever, justify its non-compliance with the core obligations” set out by the Comments: such core obligations are “non-derogable.”457 To assist states in aligning domestic laws and practices with their obligations under treaties, the CESCR sought to provide guidelines to clarify the meaning and scope of treaty obligations in a series of General Comments.458 In the General Comment 3, entitled “The Nature of States Parties’ Obligations”, the CESCR classifies three types of obligations to give a complete picture of states’ duties arising from the human rights treaty. This tripartite model is articulated as the obligations to respect, protect and fulfill the rights codified in the Covenants. The obligation to “respect” consists in refraining from measures that negatively impact the enjoyment of human rights. The obligation to “protect” requires states to take measures regulating the activities of third parties in order to prevent these actors from negatively interfering with the enjoyment of human rights. Finally, under the obligations to “fulfill,” states need to take positive measures leading to the greater enjoyment of rights. Such obligations can be satisfied by for example, facilitating the exercise of such rights by individuals, or adopting appropriate laws incorporating the very rights protected by the international instrument. There is no clear-cut distinction between three aspects of the obligations: all are closely related. 2.3.3 The Multilayered Structure of Human Rights Protection The network of international arrangements on human rights protection has a multilayered outlook. The human rights system of the UN consists of the 1948 UDHR and the two 1966 UN Covenants, which taken together, are considered the “International Bill of Rights”. Along with these basic human rights instruments, there are various specialized agreements concerning the rights of especially vulnerable groups and specific categories of rights. Outside the UN mechanism, a number of regional-based agreements stipulate rules concerning promotion and protection of human rights. Each human rights instrument has different normative features including varying membership requirements, covered subject matters, and implementation procedures. Nevertheless, the contents and the scope of the rights prescribed by these treaties share a normative basis, and their terms mirror each other.

457  C ESCR, General Comment No. 14, para. 47. 458  C ESCR, General Comment No. 3; CESCR, General Comment No. 12, The Right to Adequate Food (Art. 11 of the Covenant), UN Doc. E/C.12/1999/5, May 12, 1999, para. 15; CESCR, General Comment No. 14, para. 33.

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The UDHR constitutes a common point of reference for all UN-based human rights treaties. The two Covenants build upon the rights proclaimed in the UDHR. Numerous commitments made under the UDHR find expressions in the ICERD as well: some examples are the commitments to the equality of every human being in dignity and rights,459 to the entitlement to all rights without distinction of race,460 to equality and equal protection of the law without any discrimination and to protection against discrimination.461 The CEDAW builds upon the equal rights of men and women as expressed in the UDHR preamble and the entitlement to all rights without discrimination by sex. The CRC and the CRPD reflect the UDHR’s commitment to equality, dignity, and self-determination with regard to especially vulnerable groups of children462 and people with disabilities.463 The CAT is mainly concerned with the Declaration’s prohibition of torture and cruel, inhuman or degrading treatment or punishment.464 From a different angle, these core human rights treaties touch upon different aspects of the same rights. In the case of freedom of expression, for instance, various human rights treaties impose their own institutional perspective when prescribing the provisions concerning this basic freedom: similar provisions

459  U DHR, Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 460  U DHR, Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 461  U DHR, Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 462  U DHR Article 25, para. 2: Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 463  U DHR Article 25, para. 1: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 464  U DHR Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

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are found in Article 19 of the UDHR,465 Article 19 of the ICCPR,466 Article 5, para d) (viii) of the ICERD,467 Articles 12468 and 13469 of the CRC, Article 21 of the CRPD.470 These guarantees under specialized human rights treaties stem 465  U DHR Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 466  I CCPR Article 19: 1. Everyone shall have the right to hold opinions without interference.   2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.   3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. 467  I CERD Article 5: States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:  (omitted)(viii) The right to freedom of opinion and expression (omitted). 468  C RC Article 12: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.   2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. 469  C RC Article 13: 1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.   2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or (b) For the protection of national security or of public order (ordre public), or of public health or morals. 470  C PRD Article 21 (Freedom of expression and opinion, and access to information): States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by: a) Providing information intended for the general public to persons with

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from a common understanding of the freedom of expression as an inalienable right of every person. To be more specific, Article 5 of the ICERD aims at ensuring that every person enjoys the right to freedom of expression regardless of race, color, national or ethnic origins. Article 12 and 13 of the CRC states that all children are entitled to full freedom of expression. These provisions envision the exercise of such a right under a range of circumstances, including judicial and administrative proceedings affecting the child. Article 21 of the CPRD deals with the disabled persons’ right to freedom of expression. Notably, the provision further articulates that access to information must be enhanced for the actual exercise of this right in a proper way and the modes of transferring and receiving information should also be diversified according to the particular needs of disabled persons. International human rights protection is also built on a multilayered structure consisting of a wide variety of international and national institutions. They collectively as well as individually, facilitate human rights protection, monitor domestic implementation of human rights, and conduct various human rights-related studies. Under the current UN human rights monitoring mechanism, there are four Charter-based bodies (Human Rights Council, Universal Periodic Review, Special Procedures of the Human Rights Council, Human Rights Council Complaint Procedure) and ten treaty-based bodies (CCPR, CESCR, CERD, CEDAW, CAT, SPT, CRC, CMW, CRPD, and CED). Meanwhile, regional human rights systems in Africa, the Americas, and Europe have their own reporting and complaint procedures. 2.3.4 Weak Enforcement The effective implementation of human rights treaty obligations is subject to increasing attention; the focus of international human rights law has gradually moved from standard-setting towards institution-building to ensure better enforcement of human rights norms. Only a few human rights treaties empower a formal mechanism with adjudicative authority. Despite some disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost; b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions; c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities; d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities; and e) Recognizing and promoting the use of sign languages.

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progress in the implementation and enforcement of human rights treaties, the mechanisms available under the current international human rights regime are still weak.471 There are currently only a few adjudicatory tribunals, including the ECtHR—which is the most active and has the longest history—and the Inter-American Court of Human Rights, which has become an increasingly active court in recent years. The accountability mechanisms of the international human rights regime are substantially weaker than those of other international sub-fields, as in the cases of WTO DSB and investor-state arbitration. UN human rights treaty bodies, with variations, have states’ self-reporting systems in conjunction with additional mechanisms such as inter-state complaints and individual complaints. As explored earlier, ten core human rights treaties provide various mechanisms for effective implementation of the rules contained in the human rights treaties. These treaty bodies are “legal bodies” consisting of independent and impartial experts working in an individual capacity.472 Their works are characterized as “legal examinations” that are central to understanding rights and obligations prescribed by the treaties.473 Treaty bodies submit recommendations for enhancing human rights conditions and adopt interpretative notes on specific provisions. Some of the core treaty bodies can hear individual complaints brought against the states that have accepted such procedures. Treaty bodies are not confined to declare findings of treaty violations, but may recommend specific remedies such as compensation orders, amendment of legislation that are inconsistent with the treaty obligations, retrial at national proceedings, and release of prisoners. In this regard, some national courts have occasionally referred to the “views” submitted by treaty bodies. For instance, the Full Court of the Federal Court of Australia stated: Although the views of the [Human Rights] Committee lack precedential authority in an Australian court, it is legitimate to have regard to them 471  In this regard, Cassese notes, “discontent with the action of international intergovernmental organizations and particularly with that of the United Nations in the field of human rights is so widespread that it is not necessary to press the point.” Antonio Cassese, Progressive Transnational Promotion of Human Rights in Human Rights: Thirty Years After the Universal Declaration 249 (Bertrand G. Ramcharan ed., Martinus Nijhoff Publishers, 1978). 472  Henry Steiner, Individual Claims in a World of Massive Violations: What Role for the Human Rights committee in The Future of UN Human Rights Treaty Monitoring 15 (Philip Alston & James Crawford eds., Cambridge University Press, 2000). 473  Rosalyn Higgins, Ten Years on the UN Human Rights Committee: Some Thoughts Upon Parting, 6 Eur. Hum. Rts. L. Rev. 570, 580 (1996).

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as the opinions of an expert body established by the treaty to further its objects by performing functions that include reporting, receiving reports, conciliating and considering claims that a State Party is not fulfilling its obligations. The Committee’s functions under the Optional Protocol to the International Covenant on Civil and Political Rights, to which Australia has acceded (effective as of 25 December 1991) are particularly relevant in this respect.474 However, many states are hesitant to place a substantial normative weight on the instruments produced by human rights treaty bodies and decline to honor their interpretation of the rules concerned.475 In their view, human rights treaty bodies’ jurisprudence is not legally binding. International Economic Law—The Promotion of Free Trade and Foreign Investment International Economic Law (“IEL”) consists of a complex network of legal rules governing various aspects of transnational commercial activities. Domestic policy-makers began to realize that national economic prosperity is increasingly interdependent, relying on the commercial and regulatory climate of the neighboring countries and even far away nations. Accordingly, states have become keenly interested in taking efforts to build a more predictable and stable economic environment under international law. 3

3.1

The Early Construction of the International Trading System and the Legal Regulation of Foreign Investment 3.1.1 Interwar Years International economic regulation was one of the essential themes of regulation within the mandates of the League of Nations. The Treaty of Versailles of 1919, the founding Covenant of the League of Nations, contained provisions on economic policies, urging states to “make provision to secure and maintain 474  Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 (Apr. 15, 2003), para. 148. 475  I LA, Committee on International Human Rights Law and Practice, Final Report on the Impact of the Work of the United Nations Human Rights Treaty Bodies on National Courts and Tribunals, Berlin Conference (2004), p. 3 (available at http://www.ila-hq.org/down load.cfm/docid/3B0BF58A-C096-4113-830E8E1B5BC6DEC5); Rosanne Van Alebeek & André Nollkaemper, The Legal Status of Decisions by Human Rights Treaty Bodies in National Law in UN Human rights Treaty Bodies: Law and Legitimacy 356–357, 372–373 (Helen Keller & Geir Ulfstein eds., Cambridge University Press, 2012).

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freedom of communications and of transit and equitable treatment for the commerce of all Members of the League.”476 The 1919 Covenant also called for the elimination of discriminatory treatment between nations. Under the auspices of the League of Nations, a number of international conferences were held during the interwar period in Brussels (1920), Genoa (1922), and Geneva (1927). In the course of these conferences, states repeatedly addressed the issues of establishing the most effective and proper commercial policies in the international realm. The International Convention Relating to the Simplification of Customs Formalities signed at Geneva in 1923 was one of the representative works in this regard.477 The parties to the Convention made specific commitments to regulate certain aspect of trade-related measures. During the 1927 World Economic Conference in Geneva, the “collective action” of removing or lowering barriers to freer trade was strongly encouraged to increase the benefits from international commerce. On these lines, it was proposed to “remove or diminish those tariff barriers that gravely hamper trade” for future economic development.478 At the conclusion of this Conference, the Convention for the Abolition of Import and Export Prohibitions and Restriction was adopted; it was the most comprehensive and ambitious multilateral economic agreement of the time.479 Although the Convention ultimately failed to come into force due to parties’ reservations and non-ratifications, its terms continue to have some bearing on the current terms of the WTO Agreement. For instance, Article 4 of the 1927 Convention was the main inspiration for the General Exception clause in the WTO Agreement.480 The League of Nations continued promoting multiple IEL initiatives. International policy-makers strongly requested state governments to establish an intergovernmental organization to oversee international regulation of economic affairs.481 Although states convened a number of multilateral economic .

476  Article 32, Treaty of Peace with Germany, Jun. 28, 1919. 477  The Convention came into force in the following year of 1924. International Convention Relating to the Simplification of Customs Formalities, November 3, 1923, 30 L.N.T.S. 371. (later published in 19 Am. J. Int’l L. 146 (1925)). 478  Report of the World Economic Conference, 134 Annals of the American Academic of Political and Social Science 174, 188, 191 (1927). 479  Convention for the Abolition of Import and Export Prohibitions and Restrictions, Nov. 8, 1927, 97 L.N.T.S. 391; 29 States signed the convention and 21 of them ratified it. Hudson (1944), at 2160. 480   Public policy purpose—environmental protection. Steve Charnovitz, Exploring the Environmental Exceptions in GATT Article XX′ in GATT Article XX, 25 J. World Tr. 37 (1991). 481  James Edward Meade, The Economic Basis of a Durable Peace 9 (George Allen & Unwin Ltd., 1940); moreover, there was an interesting development: during the Annual Meeting

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conferences, they merely reiterated existing commitments for the reduction of tariffs and other trade barriers.482 When the first worldwide economic recession spread across the globe in 1930s, the League of Nations was not prepared to manage such a major economic crisis. One of the primary causes for this unprecedented collapse of the world economy was imposition of infamously high tariffs that had long been a widespread commercial policy in many countries.483 As in the case of the US Smoot—Hawley Tariff Act of 1930, there was a steep rise in tariffs in almost all major nations in this period.484 This harsh policy against imported products often provoked retaliatory responses from other countries; more states engaged in protectionist measures. As Irwin points out, the interwar period lacked an effective institutional mechanism that would require actual reduction of barriers to interstate trade.485 Concurrently, the severe economic downturn and high unemployment rate in the domestic realm, jointly prompted governments decisions to adopt more protectionist and restrictive economic policies. The international regulation of growing foreign investment remained in a considerable confusion.

of the American Society of International Law of 1940, Huston Thompson proposed international trade tribunals with the jurisdiction over economic questions between individuals of different states. Huston Thompson, An International Trade Tribunal, 34 Am. Soc’y Int’l L. Proc. 1 (1940). 482  For instance, in 1933, the Assembly of the League of Nations convened the International Monetary and Economic Conference in order to find effective ways to boost trade and stabilize currency. More efforts were taken place in various settings. William A. Brown, The United States and the Restoration of World Trade: An Analysis and Appraisal of the ITO Charter and the General Agreement on Tariffs and Trade 29–37 (Brookings Institute, 1950). 483  Charles P. Kindleberger, The World in Depression 1919—1939 125–226 (The University California Press, 1986); but see for counter arguments, Peter Temin, Lessons from the Great Depression 46 (The MIT Press, 1989). 484  Heinz W. Arndt, The Economic Lessons of the Nineteen-Thirties 17 (Oxford University Press, 1944); before the passing of the Smoot Hawley Tariff Act, domestic economic legislation such as Fordney—McCumber Tariff Act of 1922 signaled changes in U.S. attitude towards the idea of freer trade. A number of international law scholars urged that domestic tariff should be properly regarded as a matter for international dialogue even though technically such policy was not governed by international law. See Arthur Kuhn, The Tariff as a Matter of International Concern, 23 Am. J. Int’l L. 816 (1929). 485  Douglas A. Irwin, The GATT’s Contribution to Economic Recovery in Post-War Western Europe, National Bureau of Economic Research (NBER) Working Paper 4944 (December 1994), p. 1.

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It is well accepted that foreign investment regulation was initially developed in close connection with the basic principles of customary international law regarding the protection of alien property. Capital-exporting Western states were deeply concerned with the uncertainty in the status of property owned by their nationals abroad; as home states of foreign investors, they urged to establish clearer rules for investment protection. The idea of treaty-based protection for foreign investors was also developed in the context of growing FCN treaties, but no interstate efforts were successful in creating a steady multilateral forum on investment protection. At this early stage, several standards of investment protection began to emerge in international legal literature and practices. First, the principle of national treatment was recognized as a “distinct” and “settled” standard of investment protection.486 One early international instrument in support of the national treatment standard is the Montevideo Convention on the Rights and Duties of States.487 Article 9 of the Convention reads: The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals. According to the principle of national treatment, as long as the host state treats foreign investors with the same rules applied to its nationals, the host state is regarded as meeting the international standards. The legal position of the alien was enhanced “from that of complete outlawry, in the days of early Rome and the German tribes, to that of practical assimilation with nationals.”488 The international minimum standard was another longstanding principle.489 If a local legal system with underdeveloped rules of investment protection fails to meet certain standards of justice, the national treatment standard can be 486  Elihu Root explained the core concept of the standard as observed in early twentieth century: each country is bound to give to the nationals of another country in its territory the benefit of the same laws, the same administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less: provided protection which the country gives to its own citizens conforms to the established standard of civilization. Root (1910), at 521. 487  The Convention on the Rights and Duties of States, Montevideo, Dec. 26, 1933. 488  Edwin M. Borchard, Diplomatic protection of citizens abroad 33 (Banks Law Publishing Co., 1915). 489  See generally, Edwin M. Borchard, The Minimum Standard” of the Treatment of Aliens, 38 Mich. L. Rev. 445 (1940); Roth (1949).

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abused as a means to justify the ill treatment of foreign investment. For this reason, the international minimum standard requires state to meet certain standards of protection regardless of how it treats its own citizens pursuant to national law. One contemporaneous commentator observes: The foreigner is entitled to have the protection and redress which the citizen is entitled to have, and the fact that the citizen may not have insisted upon his rights, and may be content with lax administration which fails to secure them to him, furnishes no reason why the foreigner should not insist upon them and no excuse for denying them to him.490 The contents of the standard primarily reflected the domestic laws of capital exporting countries.491 While the existence of the standard was generally accepted, its contents and applicable scope were often contested. Along with the principles of national treatment and the international minimum standard, it became increasingly accepted that appropriate compensation must be paid in cases of national expropriation; the state may not nationalize the property possessed by foreigners without paying compensation. The importance of providing proper compensation in cases of nationalization and appropriation found expression not only in international jurisprudence but also in the exchange of diplomatic notes. In 1938, Cordell Hull, then U.S. Secretary of State, issued a statement to the Minister of Foreign Affairs of Mexico; he criticized the Mexican government’s expropriation of land and oil fields possessed by American nationals. Hull noted that while a host state was permitted to expropriate property of foreign nationals in certain situations, 490  Root (1910), at 523. 491  Along these lines, Schwarzenberger asserts the importance of the minimum standard in international law as follow: “even if the standard of national treatment is laid down in a treaty, the presumption is that it has been the intention of the parties to secure to their nationals in this manner additional advantages, but not to deprive them of such rights as, in any case, they would be entitled to enjoy under international customary law or the general principles of law recognized by civilized nations.” Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals 248 (Stevens & Sons, 3rd ed., 1957); in many international disputes concerning investment protection, national treatment was regarded as complementing the international minimum standard. For example, L.F.H. Neer and Pauline E. Neer (United States v. Mexico), Award, (1926) R.I.A.A., Vol. IV, p. 60 (Oct. 15), at p. 61; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932 P.C.I.J. Series A/B, No. 44, p. 28 (Feb. 4); Marguerite de Joly de Sabla (United States v. Panama), Decision of the Commission, Jun. 29, 1933, 28 Am. J. Int’l L. 602 (1934).

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expropriation is unlawful when appropriate compensation is not followed in a “prompt, adequate, and effective” way.492 This so-called “Hull rule” was welcomed by a majority of capital exporting states, but his notion met with fierce resistance from developing countries particularly in Latin America.493 Latin American countries continued to adhere to the “Calvo Doctrine,”494 arguing that the states had obligations towards foreign investors only to the extent to which they were required for treating their own nationals.495 Disputes between foreign investors and the host state over the treatment of investments were to be exclusively addressed by the domestic process of the 492  Hull stated: “[t]he Government of the United States merely adverts to a self-evident fact when it notes that the applicable precedents and recognized authorities on international law support that, under every rule of law and equity, no government is entitled to expropriate private property, for whatever purpose, without provision for prompt, adequate, and effective payment therefor.” (emphasis added) As cited in Andreas F. Lowenfeld, International Economic Law 398–399 (Oxford University Press, 2008); see also for more analysis on the development of the Hull Rule, Dolzer (1981), at 558. 493  On this point, the Restatement of United States Foreign Relations Law affirms that the Hull Rule “has been incorporated into a substantial number of bilateral agreements negotiated by the United States as well as by other capital exporting states both among themselves and with developing states.” Restatement (Third) of the Foreign Relations Law of the United States, sec. 712, Pt. VII, Comment (c), 198; however, some countries have opposed to the application of Hull Rule. The Mexican Foreign Minister wrote: “[n]o rule universally accepted in theory nor carried out in practice, which makes obligatory the payment of immediate compensation nor even of deferred compensation, for expropriations of a general and impersonal character like those which Mexico has carried out for the purpose of redistribution of the land.” He clearly expressed Mexico’s disagreement against the U.S.’s theory of compensation. This statement is cited in Lowenfeld (2008) at 399. 494  See generally, Alwyn Freeman, Recent Aspects of the Calvo Doctrine and the Challenge to International Law, 40 Am. J. Int’l L. 121 (1946); Frank G. Dawson, The Influence of Andres Bello on Latin-American Perceptions of Non-Intervention and State Responsibility, 57 Brit. Y.b. Int’l L. 253 (1986); see for a more recent observation, Santiago Montt, What International Investment Law and Latin America Can and Should Demand From Each Other. Updating the Bello/Calvo Doctrine In the BIT Generation, 3 Res Publica Argentina 75 (2007). 495  The early theoretical observation is found in Amos S. Hershey, The Calvo and Drago Doctrines, 1 Am. J. Int’l L. 26 (1907); the Western states sought to denounce the scholarly credibility of Calvo in many ways. For instance, in 1873, the U.S. Ambassador wrote in response to the Mexican Foreign Ministry’s invocation of the Calvo doctrine on investment protection, “Dr. Calvo was a young lawyer whose theories had not been accepted internationally.” in Jan Paulsson, Denial of Justice in International law 21 (Cambridge University Press, 2005).

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host state; under the concept of equality, like domestic investors, aggrieved foreign investors have to invoke national treatment standard at domestic courts. Foreign investors were not entitled to enjoy the diplomatic protection of their home state governments except in the case of clear denial of justice.496 The Calvo Doctrine was incorporated into agreements concluded between Central and South America nations. Yet, their impact and power on the international scene were not strong enough to withstand the demands of the Western power to impose compensation obligations according to the Hull Rule. Capital-exporting countries of the west rejected the Calvo Doctrine and its application. 3.1.2 Failed Attempts to Create the International Trade Organization The origins of the current IEL structure can be found in the international arrangements that came into being after the Second World War. Even before the war, the world economy was already severely damaged due to high tariff policies and other protectionist measures. In order to rebuild the global economic order and achieve full postwar recovery, states proposed establishing international rules and institutions in this field and finally reached a general agreement at the Bretton Woods conference held in New Hampshire in 1944. The United States played a strong leadership role in erecting these structures. While World War II was still ongoing, the so-called “Bretton Woods” system was proposed; the proposed plan of the Bretton Woods system consisted of the International Trade Organization (“ITO”), and International Monetary Fund (“IMF”),497 and the International Bank for Reconstruction and Development (“IBRD”, the predecessor of the World Bank).498 The ITO was designed to provide a multilateral forum for negotiating a range of IEL rules, as well as collecting and analyzing relevant information and settling disputes between states. During the period between November 1947 and March 1948, the Havana Charter for an International Trade Organization (“Havana Charter”) was negotiated under the auspices of United Nations

496  See generally, Shea (1955), at 9–50 (Chapters II on the origins of the Calvo clause and III on the governmental attitudes toward the Calvo clause controversy). 497  The IMF was created to stabilize an exchange rate regime and to provide the emergency assistance to countries experiencing a temporary crisis in their balance of payments. 498  The IBRD was established to facilitate private investment and post-war reconstruction in Europe. The Bank was also entrusted with assisting development in other countries. This mandate later became the primary objective of its existence under the World Bank system.

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Conference on Trade and Employment.499 It was expected that the ITO would “bridge gaps between different economic systems and different philosophies of economic organization” as well as “between different concepts of the nature of the economic process.”500 The role of ITO also included coordination of the monetary and fiscal policies between different countries. The ITO never came into being; participating states finally abandoned the Havana Charter shortly after the U.S. government’s refusal to ratify it. The revival of protectionist sentiments in the U.S. and the distrustful attitudes of the business community toward the proposed ITO led to the unfortunate fate of the ITO.501 Some countries were dissatisfied with the Charter’s attempt to pursue policies other than trade liberalization at the ITO.502 The Charter had a clear intention to serve non-trade, non-investment-based social interests; this approach demonstrated the willingness of many parties to accept a comprehensive international economic institution responsible for the wideranging regulatory objectives. The ill-fated ITO was originally supposed to cover not only issues of trade liberalization but also foreign investment regulation.503 Particularly in Articles 11 and 12, the Havana Charter provides some rules on foreign investment. The Charter recognizes that the investment is a vehicle to foster economic growth as well as social prosperity; foreign investment is considered “of great value in promoting economic development and reconstruction, and consequent social progress.” In fact, “progressive industrial and economic development, as well as reconstruction, requires among other things adequate supplies of capital funds, materials, modern equipment and technology and technical and managerial skills.” Nevertheless, these provisions do not stipulate any positive obligations on the part of states to protect international investment. Instead, the Charter simply declares that states must “provide reasonable opportunities for investment acceptable to them and adequate security for existing and future investments” as well as “give due regard to the desirability

499   The original text is available at http://www.wto.org/english/docs_e/ legal_e/havana_e.pdf. 500  William Diebold, The End of ITO, Essays in International Finance Section, Department of Economics and Social Institutions 21, 37 (Princeton University, 1952). 501  Robert A. Isaak, Managing World Economic Change: International Political Economy 80–81 (Prentice Hall, 3rd ed., 2000). 502  Jackson (1969), at 42–49. 503  Riyaz Dattu, A Journey from Havana to Paris, 24 Fordham Int’l L. J. 275, 286 (2000).

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of avoiding discrimination as between foreign investments.”504 Article 12 recognized rights of the ITO parties to do the following. Article 12(1)(c) reads: (i) to take any appropriate safeguards necessary to ensure that foreign investment is not used as a basis for interference in its internal affairs or national policies; (ii) to determine whether and, to what extent and upon what terms it will allow future foreign investment; (iii) to prescribe and give effect on just terms to requirements as to the ownership of existing and future investments; (iv) to prescribe and give effect to other reasonable requirements with respect to existing and future investments Here, the Charter seems to admit that domestic policy goals were inevitably prioritized over international ones. The vague and ambiguous terms of foreign investment regulations were due to the strong disagreement over the adequate standard of investment protection between capital-exporting and capital-importing states during the negotiation of the Charter. On the one side, the U.S. representative to the Conference showed its dissatisfaction: Investment provisions negotiated at a multilateral conference might express the lowest common denominator of protection to which any of the participants would be willing to agree.505 Similarly, the capital-exporting countries, including the U.S. demanded that international trade and investment should be governed in an orderly manner based on a multilateral legal framework and democratic governance. On the other side, developed Western countries encountered strong resistance from developing countries discontented with interference with state sovereignty. The statement made by Miguel Cuaderno, then governor of the Central Bank of the Philippines, illustrates the overwhelming concerns shared by developing countries towards the incorporation of liberalized investment protection backed by multilateral treaties. In his view, these international standards favored capital exporters, allowing private investors “to dominate the

504  I TO Havana Charter, Article 12(2)(a). 505  As quoted in Lowenfeld (2008), at 404.

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economic, if not political, affairs of underdeveloped nations.”506 Communist states were concerned with the influx of capitalistic ideology, and many socialist countries prohibited the FDI for this reason. It was difficult to find an acceptable common ground on the extent to which the state should be allowed to exercise its regulatory freedom with respect to the treatment of foreign investment on its soil. Hence, the Charter made only a modest reference to the issue of foreign investment protection. The project of internationalizing the foreign investment protection through the treaty-based framework was still far from completion. 3.2 Between Bilateralism and Multilateralism Despite the failure to create the ITO, the general trend towards liberalization facilitated by the Bretton Woods system continued to flourish. The idea of liberalizing the international economic order was further developed by a network of international, regional and bilateral legal arrangements. Interestingly, the international trading system continued to be discussed in multilateral settings as opposed to the investment protection regime, where these efforts largely failed. Instead, the development of international investment law was predominantly bilateral in nature.507 This section is divided into three phases, examining the development of contemporary international economic law after the Second World War: the period immediately after the post-Bretton Woods moment, the Cold War period coupled with the movement of decolonization and independence, and lastly, the post-Marrakesh moment at the conclusion of Uruguay Round, extending from 1994 to the present. Each sub-section highlights some of the 506  At the International Industrial Development Conference held in San Francisco in 1957, Miguel Cuadero expressed his concerns on whether the private foreign investment funds would act for the mutual benefit of the investors and the underdeveloped countries on equal footing. The words of Cuaderno was quoted in the Arthur S. Miller, Protection of Private Foreign Investment by Multilateral Convention, 53 Am. J. Int’l L. 371, 375 (1959). 507  Multilateralism involves three or more states whereas bilateralism refers to ordering relations between two countries. Robert O. Keohane, Multilateralism: An Agenda for Research, 45 Int’l J. 731 (1990); to be more specific, multilateralism is defined as “an institutional form that coordinates relations among three or more states on the basis of generalized principles of conduct; that is principles which specify appropriate conduct for a class of actions, without regard to the particularistic interest of the parties or the strategic exigencies that may exist in any specific occurrence.” Bilateralism is characterized by the “specific reciprocity” and usually “manifests itself in rules that favour the interest of the more powerful.” John G. Ruggie, Multilateralism: The Anatomy of an Institution in Multilateralism Matters 3, 11 (John G. Ruggie ed., Columbia University Press, 1993).

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most significant normative developments in the field of international trade and foreign investment. 3.2.1

3.2.1.1

The Immediate Post–Bretton Woods Moment The Adoption of the GATT 1947

The General Agreement on Trade and Tariffs (“GATT”)508 was intended to be included in a provisional application pending the expected creation of the ITO; this arrangement was selected as a provisional solution for immediate implementation of tariff concessions.509 The GATT was signed in 1947 and came into force on January 1, 1948. The GATT 1947 established a multilateral trading system, codifying many of the existing rules and principles governing international commercial relations. It aimed to substantially reduce tariffs and other barriers to trade in goods.510 It also sought to promote a liberalized system of trade by eliminating discriminatory treatment taken on the basis of differences in nationality. The GATT 1947 was initially divided into three parts. Part I contains the provisions on the Most-favored-Nation (“MFN”) principle and schedules of tariff concessions taken by the Contracting parties. Part II deals with the numerous regulatory issues of commercial policy, including national treatment, anti-dumping countervailing duties, quantitative restrictions, subsidies, government assistance to economic development, general exceptions, security exceptions and nullification or impairment. Part III is concerned with territorial applications, formation of customs unions and free trade areas, and legal procedures regarding the modification of schedules, amendments, withdrawals, and the accession of new members. In addition to these three parts, Part IV on “Trade and Development” was later added after persistent demands from the developing world. Part IV was approved in 1965 and implemented in 1966. A dispute settlement mechanism also existed to deal with complaints brought by one contracting party against another before independent Panels. The main goal of the GATT was much more limited compared to that of the stillborn ITO. Its immediate objectives focused exclusively on the reduction of tariffs and other barriers to trade. The GATT made fewer references to the relevance of non-trade concerns and other international organizations. For instance, Article XX allows contracting parties to deviate from GATT obligations under certain circumstances on policy grounds, including protection of 508  The General Agreement on Trade and Tariffs, Oct. 30, 1947, TIAS No. 1700, 55 U.N.T.S. 188. 509  The GATT 1947 was to be incorporated into the Havana Charter. 510  The GATT signatories negotiated reductions in tariffs on some 50,000 items. WTO: An Overview.

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health and the environment. In Article XXI, the GATT considered the broader context of public international law by explicitly permitting trade sanctions “in pursuance of obligations under the United Nations Charter for the maintenance of international peace and security.” Exchange rates and the work of IMF found explicit expressions in the text of GATT 1947 as well. Another major role of the GATT was to provide a forum for continuing negotiations for trade liberalization. A series of negotiations led to “a gradual evolution from a power oriented approach, in the state of nature, towards a rule oriented approach.”511 Eight Rounds were held periodically under the GATT’s auspices. Contracting parties sought to progressively reduce various trade barriers according to internationally agreed standards as well as to expand the regulatory scope of the GATT. 3.2.1.2

The Inception of the BITs Program

Growing economic abundance in the capital-exporting states increasingly led them to seek for investment opportunities abroad. Many investment projects took place in developing countries where the standards of investment protection were significantly lower than the home states of foreign investors. Foreign investors had to rely on the weak protection available in the domestic legal system of the host states. It was unlikely that the multilateral arrangement for foreign investment regulation would emerge anytime soon after the abandonment of ITO, which could have provided such mechanism.512 In this context, Western states sought to find an alternative way to guarantee adequate protection for foreign investors and their properties; concluding the Bilateral Investment Treaties (BITs) were expected to serve these purposes. It became a preferred policy considering “creativity, flexibility, and political expediency” of bilateral agreements.513 The BIT is generally defined as an international agreement between two states to regulate the various aspects of foreign investment. While a greater multiplicity of demands and interests among participating actors must be taken into account to establish a multilateral framework, BIT negotiation is exclusively concerned with the specific needs of two parties. The objectives of the BITs network are threefold: i) setting appropriate legal standards with 511  Jackson (1978), at 99. 512  See for example, Andrew T. Guzman, Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 Va. J. Int’l L. 639 (1997); Kenneth J. Vandevelde, The Economics of Bilateral Investment Treaties, 41 Harv. Int’l L. J. 469 (2000). 513  Gabriella Blum, Bilateralism, Multilateralism, and the Architecture of International Law, 49 Harv. Int’l L. J. 323, 339 (2008).

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respect to foreign investment protection, ii) promoting economic development of the host states, and iii) providing a neutral forum for dispute settlement. From the perspective of states parties, the BITs protect their nationals’ interests in foreign investment existing in the host states. States enter into the BITs to provide stable political and economic environment that would attract more foreign capitals: becoming parties to the BITs is considered as a demonstration of the state commitment to provide a reliable environment for foreign investment. Concurrently, states sign BITs to raise the overall standards of living with an increase in economic gains.514 Foreign investors are not a party, but by virtue of his or her home state’s status as a party to the agreement, he or she is entitled to enjoy certain rights and procedural standing under the BITs. In fact, the substantive provisions of the BITs primarily deal with the relationship between the state parties and foreign investors. One of the most critical features of the BITs system is that foreign investors are permitted to bring direct claims against a host state for its violation of the standards pursuant to the relevant treaty provisions. The disputes between foreign investors and host states regarding application and interpretation of investment treaties are resolved under the auspices of international judicial institutions such as the ICSID.515 This arrangement was a major step forward, considering that the remedies traditionally available for the aggrieved foreign investors were limited to petitioning their home states to invoke diplomatic protections on their behalf. Alternatively, investors could bring a suit against the host state in local courts.516 The new way of settling investment disputes also sought to prevent “gunboat diplomacy” by powerful states, which often forcefully intervened and accomplished their purposes of protecting their nationals’ investments abroad. Treaty-based arbitration was expected to provide legal stability and certainty, ultimately benefitting both foreign investors and the states.

514  See Jeswald W. Salacuse & Nicholas P. Sullivan, Do BITS Really Work? An Evaluation of Bilateral Investment Treaties and Their Grand Bargain, 46 Harv. Int’l L. J. 67 (2005). 515  Creation of the ICSID mechanism is a major departure from conventional international dispute settlement because it allows non-state actors to initiate a legal suit against sovereign state in international forum. ICSID was established by the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 4 I.L.M. 524 (entered into force Oct. 14, 1966). 516  This line of practices left investors with no choice but to expect home State governments to take care of their claims against the host State’s violation. See generally, Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law (Oxford University Press, 2008); Vaughan Lowe, International Law 197–199 (Oxford University Press, 2007).

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The FCN treaties are often referred to as a historical precursor to the BITs. Even after the first BIT was concluded between Germany and Pakistan in 1959,517 both models of investment protection had coexisted for a while. Trade and commerce had often been the main subjects covered by FCN treaties. However, the GATT 1947 took over tasks of the FCN for the most part, signaling a successful beginning of the multilateral trading system. In this relation, the investment protection component of the FCNs significantly expanded in the years following the conclusion of the GATT 1947.518 Investment-related provisions came to constitute almost half of the FCN treaty body.519 The FCNs were often referred to “Treaties for the Encouragement and Protection of Foreign Investment” in this period.520 The U.S. alone concluded twenty-one FCN treaties between 1946 and 1966,521 all aiming for the dissemination of FCN-based investment protection standards. FCN treaties are comprehensive agreements governing various issues such as trade, navigation, security and investment as well as the treatment of aliens. These agreements were adopted between developed countries with symmetrical political and economic status. During this time, FCNs were considered an alternative to the BITs network promoted by European nations.522 By comparison, BITs focus on the legal issues concerning the protection of foreign investment and their substantive contents are relatively shorter. In the early phase of development, BITs were typically concluded between parties having a relatively asymmetrical relationship. It was a prevalent practice to use the model treaties developed by capital exporting states in drafting BITs.523 Core rules of investment protection include principles of most-favored-nation, national treatment, and prohibitions against expropriation without compensation. Along with these bilateral arrangements, states continued discussions on establishing a multilateral investment protection mechanism. Francisco Garcia-Amador, the Special Rapporteur to the ILC, asserts in a series of reports submitted to the Commission that it would be “favourable” to achieve universal 517  Germany–Pakistan BIT, Nov. 25, 1959. 518  Vandevelde (2005), at 162–166. 519  Herman Walker Jr., Treaties for the Encouragement and Protection of Foreign Investment: Present United States Practice, 5 Am. J. Comp. L. 229, 234 (1956). 520  Walker (1956), at 229. 521  Kenneth J. Vandevelde, The Bilateral Investment Treaty Program of the United States, 21 Cornell Int’l L. J. 201, 209 (1988). 522  Wolfgang Alschner, Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law, 5 Goettingen J. Int’l L. 455, 458 (2013). 523  Dolzer & Stevens (1995), at 13.

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recognition of certain minimum standards of international law for the sake of both aliens and nationals.524 He also raises the issue of how individual foreign investors directly enforce their right to private property on their own behalf. In a similar vein, the UN General Assembly passed a resolution in 1958 urging the UN Secretariat to conduct studies on the promotion of private foreign investment in furtherance of economic development.525 Submitted in 1960, the report entitled, “The Promotion of the International Flow of Private Capital” proposed creation of a multilateral agreement to promote foreign investment protection.526 Private initiatives were also active in establishing a multilateral structure in the area of foreign investment protection. The German Society to Advance the Protection of Foreign Investments published a draft code, “International Convention for the Mutual Protection of Private Property Rights in Foreign Countries” in 1957.527 In 1958, another privately-drafted convention was produced by a group of European lawyers led by Sir Hartley Shawcross. These two privately-promoted documents were combined into a single draft convention, named “The Abs-Shawcross Draft Convention on Investments Abroad” (Abs-Shawcross Draft) in 1959.528 The Abs-Shawcross Draft prescribed provisions for ensuring economic freedom of foreign investors against unlawful state interference such as expropriation without compensation. This Draft provided detailed provisions with respect to investor-state arbitration.529 Foreign investors were entitled to bring a claim against host state before a tribunal that is not within the ambit of domestic legal system. The Abs-Shawcross Draft had a significant impact on the ongoing project of the OECD to create an international convention for investment protection. The multilateral investment agreement developed under the OECD framework never came into existence. Many developing countries criticized the OECD proposal for being narrowly tailored to the demands of protecting western capital abroad. 524  Oscar Schachter, Private Foreign Investment and International Organizations, 45 Cornell L. Q. 415, 422 (1959–1960); F.V. Garcia-Amador, International Responsibility: Special Rapporteur’s Report, Y.B. Int’l L. Comm’n (1956), at 173. 525  U N GA Resolution 1318 (XIII), A/PV.788, Dec. 12, 1958. 526  The Promotion of the International Flow of Private Capital, U.N. Doc. No. E/3325, Feb. 26, 1960 at 78–79. 527  For closer observation on the production of the 1957 draft code, see Miller (1959). 528  It is reproduced in Herman Abs & Lord Shawcross, The Proposed Convention to Protect Private Foreign Investment, 9 J. Public L. 115, 116–124 (1960). 529  Article VII (2) and Annex.

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3.2.2 Major Developments in the Subsequent Decades International rules for regulating global trade and foreign investment continued to flourish under the institutional framework developed by the Bretton Woods system. The development of trade regulation showed an evident trend towards multilateralization, whereas international protection of foreign investment took the form of a network of numerous bilateral arrangements. 3.2.2.1

Some Features of the Period in Relation to IEL Development

At the onset of the Cold War, an “age of extremes”, the acute ideological and geopolitical divide persisted for several decades following the establishment of the Bretton Woods.530 The core identity of Bretton Woods institutions is manifested in economic liberalism and the free market capitalism.531 In contrast, the leading ideology propagandized by the Soviet bloc was communism with the principle of the planned economy; the idea of freer trade and liberalized investment protection could not coexist with the Soviet understanding of prosperity. The Soviet bloc did not engage in any significant participation in the development of trade and investment regime during this period. Developing countries and newly independent states increasingly joined the GATT in this period. They sought to add new mandates reflecting their interests to the trade negotiations. The rapid expansion of GATT membership diversified the views and interests at the negotiation table; the new entity of states posed questions on the various aspects of multilateral trading system. At the initiative of developing countries, the UNCTAD was founded in 1964, placing counterweight on the GATT system. These states were also eager to take back full control and sovereignty in regulating national resources including properties owned by foreign investors. They frequently used the General Assembly Resolutions to introduce their understandings of the regulatory sovereignty and economic development. In this relation, the New International Economic Order (“NIEO”) movement began to emerge in 1970s. The NIEO movement attempted to reshape the landscape of existing economic relations as well as relevant legal principles in international economic law. Meanwhile, the blocdriven geopolitical and ideological confrontation was largely dissolved at the end of Cold War, opening up possibilities of international cooperation for a wider range of issue areas. The former socialist countries slowly accepted the ideas of a free market and liberalized economic order as the proper model for 530  Hobsbawm coined this term. Eric Hobsbawm, Age of Extremes: The Short Twentieth century, 1914–1991 (Abacus, 1994). 531  John G. Ruggie, International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic Order, 36 Int’l Org. 379 (1982).

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domestic economic growth. In this way, a group of non-western states increasingly “rush to free trade” in 1990s.532 Overall, despite the periodic fluctuations in trade and the episodes of economic crisis around the globe, there has been a consistent trend toward trade liberalization as well as liberal investment protection. Multiple international economic arrangements were established both at the multilateral, regional, and bilateral levels, strengthening economic integration. Under the leadership of capital-exporting states, the international economic order was developed in accordance with liberalized standards of global trade and investment. However, there was a backlash from capital-importing countries. The effectiveness and the legitimacy of the international economic regime were repeatedly challenged in the context of global crises in international economic governance such as the economic breakdown of the late 1990s, which began in Asia and another collapse of the financial arrangements in 2008. Various scholars and civil society groups asserted that international economic law and policy should be reassessed and reoriented in consideration with other social regulations such as environment and human rights issues. 3.2.2.2 (i)

From the GATT to the WTO Eight Rounds of Trade Negotiations Under GATT Framework

In the period between 1947 and 1994, eight rounds of trade negotiations were held under the GATT; the negotiation rounds of Geneva (1947), Annecy (1949), Torquay (1950–1951), Geneva (1956), Dillon (1960–1961), Kennedy (1964–1967), Tokyo (1973–1979) and lastly the Uruguay Round (1986–1994) facilitated trade liberalization at a global scale.533 For the first five rounds, the major exporting countries were dominant participants; this picture gradually changed due to increases in the number of developing countries as well as the former communist nations joining the GATT in the course of 1960s through 1990s.534 The GATT system worked “reasonably well” during its first decade.535 At this stage, the foremost objective of GATT trade negotiations was tariff reduction. 532  Anne O. Krueger, Trade Policy and Economic Development: How We Learn, 87 The American Economic Rev. 1 (1997). 533  A brief overview of the GATT trade negotiations from Havana to Marrakesh is available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm. 534  A total of 36 developing countries joined the GATT in 1960s, expanding the participants of the Kennedy Round to 62 from 26 in previous Round. 1970s and 1980s witnessed the inclusion of additional developing states. By the time of the Tokyo Round that ended in 1979, a total number of 102 countries participated the trade negotiations. 535  Robert E. Hudec, GATT or GABB?—The Future Design of the General Agreement on Tariffs and Trade, 80 Yale L.J. 1299 (1971).

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The initial five rounds lowered tariff-based trade barriers in goods from an average of 40% in 1947 to an average of 12%. At the conclusion of the Tokyo Round in 1979, “[. . .] the average import weighted tariff on manufactured products maintained by industrialized nations declined to about 6 per cent.”536 Concurrently, the scope of trade negotiations under the GATT was extended to include non-tariff barriers to trade. During the Tokyo Round, there was a major breakthrough in tackling non-tariff measures; issues of subsidies and countervailing measures, product standards, government procurement, import-­ licensing procedures and anti-dumping began to be negotiated. In the early years of the GATT, the contracting parties tended to avoid discussing issues other than traditional measures for trade liberalization. Over time, with the surge of developing countries in the GATT membership, a variety of concerns were introduced before the negotiation table, putting pressure to expand existing mandates of the negotiation. The two goals of pursuing trade liberalization on a non-discriminatory basis and protecting states’ developmental needs began to collide. To be specific, in accordance with the MFN principle, exporters of developing countries had to compete on the same basis as those of developed countries. Since the former had much less capacity than the latter in the competitive global market, it was suggested that the equal application of the MFN principle, without regard to discrepancies in developmental level, hampered the growth of developing countries.537 Questions arose as to whether the growth and development of developing states could best be facilitated under the existing GATT framework. Developing countries argued for creating differential rules with respect to cases of international trade between developed and developing states. The call for greater attention to these special needs of developing countries was reflected in the subsequent trade negotiations. The Kennedy Round explicitly addressed the special needs of developing countries in the multilateral trading regime for the first time. Here, states extensively examined the issues of granting special and differential treatment of developing countries. As a result, Part IV, entitled “Trade and Development” was added to the GATT. Article 36 recognizes the development needs of developing states and proclaimed other important policy objectives directed toward achieving this end. It also prescribes the principle of non-reciprocity, releasing these countries from the obligations to reciprocate trade concessions made by developed 536  Bernard Hoekman and Michel Kostecki, The Political Economy of the World Trading System: The WTO and Beyond 19 (Oxford University Press, 2001). 537  John I. Huhs, Trade Preferences for Developing Countries: Options for Ordering International Economic and Political Relations, 20 Stan. L. Rev. 1150, 1167–1170 (1968).

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countries in the course of negotiations. Article 37, for example, calls for a commitment to assisting developing countries with economic development. This provision encourages developed countries to prioritize the reduction and elimination of import barriers on products of particular interest to developing Members as well as to refrain from increasing import barriers on such products. Article 38 urges states to take joint actions to assist developing countries in pursuing trade liberalization. These provisions seek to level the playing field for developing countries pursuing international trade. At the Tokyo Round, states agreed to adopt the so-called “Enabling Clause” establishing the legal framework of the Generalized System of Preferences (“GSP”).538 The GSP scheme founded in 1971 was a waiver to Article 1 of GATT 1947; it was a deviation from the MFN obligation. The Enabling Clause is designed to “enable” developed Contracting Parties to grant more favorable tariff treatment for products imported from developing countries. It has continued to apply as part of GATT 1994 under the WTO. The Enabling Clause is prescribed in the GATT Decision on “Differential and More Favourable Treatment, Reciprocity and Fuller Participation on Developing Countries” adopted in 1979.539 Paragraph 2(c) of the Decision stipulates preferential arrangements for developing countries in trade in goods, allowing derogations to the MFN obligation in favor of these countries. Pursuant to paragraph 5, developed countries should not expect the same level of reciprocity for the commitments made by them in trade concessions. It also covers the exchange of preferences among developing Members, preferential treatment for developing countries with respect to non-tariff measures and the special treatment for the Least Developed Countries (“LDCs”). Nevertheless, the Enabling Clause does not create legally binding obligations on the part of developed countries; it merely enables developed states to provide certain preferential treatment for developing countries in order to assist economic development. Its provisions found expression in the GSP scheme as well as in some Plurilateral Trade Agreements (“PTAs”).540 538  Lorand Bartels, The WTO Enabling Clause and Positive Conditionality in the European Community’s GSP Program, 6 J. Int’l Econ. L. 507, 513 (2003); the first GSP to be established was the one of the European Economic Community (“EEC”) in July 1971. In 1992, The EEC was replaced by the European Community (“EC”). 539  G ATT Decision, Differential and More Favourable Treatment, Reciprocity and Fuller Participation on Developing Countries, GATT Doc. No. L/4903, Nov. 28, 1979; the text of this GATT decision is available at http://www.wto.org/english/docs_e/legal_e/enabling_e .pdf. 540  There were areas of trade regulation governed by the commitments on the plurilateral basis. However, except for four areas (i.e. government procurement, bovine meat, civil

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The mandates of GATT negotiations were extended to include non-trade concerns such as environmental regulation. In the Tokyo Round, there was a growing awareness regarding effect of trade on the environment and vice versa. During the Uruguay Round, some notable developments were made in the TBT Agreement, the GATS, and Agreement on Agriculture, the SPS Agreement, and the TRIPS Agreement.541 Interestingly, a number of disputes arising in the context of interaction between the non-discrimination principle of trading system and environmental regulation were brought before the GATT Panel: the Herring—Salmon in 1988, the Thailand—Cigarettes in 1990, and the Tuna—Dolphin in 1991 and 1994.542 Despite a series of trade negotiations, the protectionist sentiment in international trade was not completely eliminated and remained influential in some areas. Particularly in the late 1960s and early 1970s, undermining the “utility of any detailed substantive rules’, the non-compliance for GATT obligations increased markedly in this respect.543 Developed countries such as U.S. witnessed the reemergence of the “new protectionism,” coupled with stagflation in national economy. They employed new forms of trade-restrictive measures in order to protect their domestic industry and keep new imports out of growing developing countries. Against this background, U.S. and many European states introduced the Multifiber Arrangement (“MFA”) in 1974 restricting imports of textile and apparel from developing countries. The MFA was designed to impose quantitative quotas on the amount developing countries could export. The rationale behind this scheme was that the developed countries needed to adjust to the rapid increase in imports from the developing countries, which had a comparative advantage in producing textiles. aircraft and dairy products), all the rest were turned into multilateral commitments at the conclusion of Uruguay Round in 1994. The WTO truly became to offer multilateral trading system where all the Members multilaterally accept the rights and obligations to each other. Several years later, in 1997 WTO members agreed to eliminate the bovine meat and dairy agreements. 541  This will be elaborated in Chapter 4 with more details. 542  The analysis on these cases will be made in relevant section of Chapter 4. GATT Panel Report, Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, adopted on Mar. 22, 1988 (L/6368—35S/98) [“Herring—Salmon”]; GATT Panel Report, Thailand—Restrictions on Importation of and International Taxes on Cigarettes, adopted on 7 November 1990 (DS10/R—37S/200) [“Thailand—Cigarettes”]; GATT Panel Report, United States—Restrictions on Imports of Tuna, 20 I.L.M. 1594 (1991, not adopted) (DS21/R—39S/155) [“Tuna—Dolphin I”]; United States—Restrictions on Imports of Tuna 33 I.L.M. 839 (1994, not adopted) [“Tuna—Dolphin II”]. 543  Hudec (1971), at 1299.

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The MFA was a blatant violation of the fundamental GATT principle of nondiscrimination. Nonetheless, the GATT was not able to properly address this breach of earlier commitments. (ii)

Uruguay to Doha—The WTO System

At the conclusion of Uruguay Round, the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations was signed on April 15, 1994, at Marrakesh, creating a new international organization in the multilateral trading system, the WTO.544 As one commentator notes, it was a “constitutional moment” for international economic law and policy.545 The WTO regime deals with the various fields of trade regulations aiming at trade liberalization. The fundamental assumption underlying the regime is that freer and more predictable international trade leads to greater prosperity. In accordance with the Preamble to the WTO, the objectives of “raising standards of living”, “ensuring full employment”, and the promotion of “sustainable development” are equally recognized. The WTO system consists of numerous instruments, including the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, the WTO Agreement and the Annexed Multilateral Trade Agreements, the tariff schedules and the schedules of services’ commitments, the two sets of GATT Ministerial Decisions relating to the fulfillment of WTO obligations, which were adopted by the Trade Negotiations Committee on December 1993 and by the Trade Negotiations Committee in Marrakesh on April 1994, as well as additional protocols. The provisions of the GATT 1947 and legal decisions adopted by the GATT contracting parties were incorporated into GATT 1994 by reference to Annex 1A of the WTO Agreement.546 The original GATT 1947 had three separate parts containing 35 articles in total. Part I contains the principles underlying most-favored-nation treatment and the tariff concessions. 21 Articles constitute the Part II prescribing trade rules concerning national treatment, 544  W TO, Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Marrakesh, Apr. 15, 1994, 1867 U.N.T.S. 14, 33 I.L.M. 1143 (1994); WTO, Marrakesh Agreement Establishing World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994). 545  Joel P. Trachtman, Changing the Rules: Constitutional Moments of the WTO, 26 Harv. Int’l Rev. 44 (2004). 546  W TO, General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994).

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anti-dumping, quantitative restrictions, emergency safeguards, subsidies, state trading, general exceptions, security exceptions and nullification or impairment. Part III has 12 articles concerning the formation of customs unions and free trade areas. Here, many procedural matters, including withdrawal of concessions, modification of schedules and accession of new members are articulated as well. Part IV, entitled “Trade and Development” was added to the original GATT framework at the Kennedy Round. A range of special agreements were adopted concurrently to regulate trade in services, agriculture, textiles and clothing as well as various trade-related aspects of sanitary and phytosanitary measures, technical barriers, investment, intellectual property, subsidies and countervailing measures. While the WTO regime initially gave greater attention to negative integration (i.e. removal or reduction of domestic trade barriers existing in the form of tariffs and quantitative restriction at the border), its mandates have gradually extended to areas of positive integration (i.e. introduction of common regulatory standards at domestic levels) closely linked to regulating varying social concerns in domestic life of local populations. The WTO regime now place various non-trade regulations with trade implications under its purview; topics such as environment, labor, health, and human rights have been discussed in the WTO setting. This was a departure from the existing GATT framework, in which concerns of other regulatory areas were barely addressed. One of the remarkable developments brought by the WTO regime is found in the dispute settlement mechanism. Previously, the dispute settlement under the GATT was more of “a diplomat’s legal order” and its overall procedures were considered substantially vague.547 “Disputes” was a term that does not even appear anywhere in the original GATT.548 The Dispute Settlement Bodies (“DSB”) of the WTO allows any Member to bring a claim against any other members for alleged violations of the terms of WTO Agreements. The WTO DSB is central to providing security and predictability to the multilateral trading system. As one commentator states, it is “the most ambitious worldwide system for the settlement of disputes . . . ever adopted in the history of international law.”549 Pursuant to WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes 547  Robert E. Hudec, The GATT Legal System: A Diplomat’s Jurisprudence, 4 J. World Trade L. 615 (1970). 548  Ingo Venzke, Making General Exceptions: The Spell of Precedents in Developing Article XX into Standards for Domestic Regulatory Policy, 12 German L. J. 1111, 1113 (2011). 549  Ernst-Ulrich Petersmann, From the Hobbesian International Law of Coexistence to Modern Integration Law: The WTO Dispute Settlement System, 1 J. Int’l Econ. L. 175, 183 (1998).

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(“DSU”),550 WTO members are subject to the compulsory jurisdiction of the Panels and must use an appeals procedure before the Appellate Body, a standing review mechanism newly established at the Uruguay Round. The Panel and the Appellate Body are designed to deal with disputes pursuant to Article 3(2) of the DSU; the main function of the DSB is “to clarify the existing provisions of the covered agreements in accordance with customary rules of interpretation of public international law.” Although the GATT was thought to be a small club of rich, industrialized countries, the WTO opened up better possibilities for developing countries to play a part in the system.551 Two-thirds of WTO constituents are now developing countries. During the UR, developing countries asserted “a range substantive concern that the Uruguay Round Agreements favored developed nations at their expense.”552 From their perspective, contrary to the initial promise of trade liberalization, the multilateral trading system had failed to provide economic prosperity. Discontentment with the existing system led to a severe backlash against international economic law and policy facilitated under the WTO regime; public outrage with the global trading system erupted into a large-scale demonstration in Seattle in 1999, leading to the collapse of the 1999 WTO Ministerial Meeting and brought about subsequent mass demonstrations in Melbourne against the World Economic Forum in 2000 and huge protests in Genoa against the G20 in 2001. Many complained that international policymakers did not pay full attention to how trade affected human rights and how the protection of human rights could affect trade before these violent public outbursts against global trade.553 WTO regime began to be challenged in view of principles of equality and fairness. As a response to the ongoing criticisms, in November 2001, the Doha Ministerial Conference launched its Work Program, the Development Agenda (“DDA”).554 The Doha Ministerial Declaration took note of the “vulnerability of the least-developed countries and the special structural 550  W TO Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) [“DSU”]. 551  Robert E. Hudec, Enforcing International Trade Law: The Evolution Of The Modern GATT Legal System 11–12 (Butterworth Legal Publishers, 1993). 552  Jeffrey L. Dunoff, The WTO in Transition: Of Constituents, Competence, and Coherence, 33 Geo. Wash. Int’l L. Rev. 979, 981 (2001). 553  Susan A. Aaronson, Seeping in Slowly: How Human Rights Concerns are Penetrating the WTO, 6 World Trade Rev. 413, 416 (2007). 554  See more about the Doha Round at http://www.wto.org/english/tratop_e/dda_e/dda_e .htm#development.

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difficulties they face in the global economy.”555 The Doha Declaration sought to place developing countries’ “needs and interests at the heart” of its work.556 The Doha Round of trade negotiations fell into deadlock for more than a decade. Many WTO Members exhibited a tendency to opt for smaller and more expedient negotiation platforms; numerous preferential trade agreements (“PTA”) were concluded on a regional or bilateral basis.557 Indeed, in today’s multipolar world, it gets harder for states to cooperate based on consensus on critical issues. As of this writing, the membership of the multilateral trading system has expanded from an initial 23 to today’s 161 economies, with varying interests and concerns for global trade. After a decade of deadlock, the Doha Round was eventually completed in December 2013; the so-called “Bali Package” was the first multilateral outcome negotiated and concluded under the WTO framework.558 While concerns and dissatisfaction about the Bali Package remain, “achievements over the past 60 years far outweigh the failures.”559 3.2.2.3 (i)

International Regulation of Foreign Investment Bilateral Arrangements of Protecting Foreign Investment

The trend of the bilateral development of international investment law emerged slowly. A few years after the conclusion of the first BIT between Germany and Pakistan in 1959, Switzerland signed the second BIT with Tunisia in 1961. Italy and Guinea signed a similar agreement in 1964. In total, 75 BITs were created in the period between 1959 and 1969. An additional 92 BITs were concluded within the next 10 years,560 with the U.K. and U.S. signing their first BITs in 1975 and 1977, respectively. While there was a clear expansion in the body of rules governing international investment arrangements, many questions remained 555  W TO Ministerial Conference, Fourth Session, Doha 9–14 November 2001, WT/MIN(01)/ Dec/1 20; WTO Ministerial Declaration of Nov. 14, 2001, WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002). 556  W TO Doha Ministerial Declaration (2001), para. 2. 557  See for recent wave of preferential trade agreements and its impact on the WTO’s future development, Kyle Bagwell, Chad P. Bown, & Robert W. Staiger, Is the WTO Passé?, Policy Research Working Paper, 7304, World Bank Group, June 2015; as of 2014, more than 790 PTAs have been concluded. Thomas Cottier, The Common Law of International Trade and the Future of the World Trade Organization, 18 J. Int’l Eco. L. 3, 3 (2015). 558  The Doha Round was completed in December 7, 2013 on the island of Bali of Indonesia. World Trade: Life After Doha, The Economist, Dec. 14, 2013. 559  Cottier (2015), at 5. 560  U NCTAD, Bilateral Investment Treaties in the Mid-1990S, 9 (United Nations Publications, 1998).

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unresolved as to how specific legal standards of investment protection would be applied and interpreted in actual practice. Regarding unsatisfactory development of international investment law at that time, the ICJ observed in its 1970 judgment of Barcelona Traction: Considering the important developments of the last half-century, the growth of foreign investments and the expansion of the international activities of corporations, in particular of holding companies, which are often multinational, and considering the way in which the economic interests of States have proliferated, it may at first sight appear surprising that the evolution of law has not gone further and that no generally accepted rules in the matter have crystallized on the international plane.561 Although the ICSID Convention came into force in 1966 after being ratified by twenty states as required by the treaty,562 it was not until 1972 when the first investment dispute was registered with the ICSID.563 Ibrahim Shihata, a prominent legal scholar and practitioner who assumed important responsibilities during the formative years of ICSID arbitration, notes that one essential rationale for instituting investor-state arbitration in modern investment treaties is to “depoliticize” the dispute.564 Nevertheless, the recourse to ICSID mechanism was unpopular in the beginning; only nine cases were registered by the end of the 1970s. A majority of foreign investors referred to the traditional dispute methods and/or domestic proceedings to resolve investmentrelated disputes. The first breakthrough in ICSID jurisprudence was the case of AAPL v. Sri Lanka in 1990.565 Established on the basis of a consent clause in a BIT, the ICSID tribunal rendered its first arbitral award. Questions arose as to what extent the 561  Barcelona Traction, para. 3. 562  I CSID Convention Article 68. 563  Holiday Inn S.A., Occidental Petroleum Corp. et al. and others v Morocco, ICSID Case No. ARB/72/1. 564  Ibrahim F.I. Shihata, Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA, 1 ICSID Rev. 1 (1986). 565  Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Jun. 27, 1990 [“AAPL. v. Republic of Sri Lanka”]; in AAPL. v. Republic of Sri Lanka, the Claimant brought suit against Sri Lanka pursuant to Article 8(1) of the BIT concluded between United Kingdom and Sri Lanka, claiming for compensation for the total loss of claimant’s investment in the respondent State. See generally, Derek Asiedu-Akrofi, ICSID Arbitral Decision: Asian Agricultural Products Limited (AAPL) v. Republic of Sri Lanka, 86 Am. J. Int’l L. 371 (1992).

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host state is responsible for damages incurred by foreign investors during violent armed conflicts in the domestic realm. In AAPL v. Sri Lanka, the claimant had invested in Serendib Seafood Ltd., a Sri Lankan public corporation, in order to cultivate and export shrimp. Its shrimp farm however, was completely destroyed by the Sri Lankan Security forces in the course of counterinsurgency operation against Tamil rebels. In July 1987, the claimant filed a suit with ICSID pursuant to Article 8 of the Agreement for the Promotion and Protection of Investments between the United Kingdom and Sri Lanka. In its claim, Sri Lanka violated its treaty obligation to provide “full protection and security” under Article 2 of this bilateral agreement and was responsible for the damage caused by the complete destruction of the farm. The government of Sri Lanka first argued that the applicable standard of protection set out by Article 2 is not strict liability, but due diligence on the part of the host state. In light of this understanding, Sri Lanka’s action was justified in view of its sovereign rights and obligations to maintain peace and security against rebel groups during an intense internal conflict. The tribunal found the respondent state is responsible for the damage caused by the government forces or by the rebels. While the tribunal did not determine whether the protection standard required by Article 2 in this case was stricter than the due diligence requirement, it found that Sri Lanka failed to meet even the lower standard of due diligence in this case. (ii)

Multilateral Initiatives to Develop International Standards of Foreign Investment Protection

Under the OECD and the UNCTAD, a series of projects to create an international regime for investment protection continued. Intensive discussion began in the OECD in the early 1960s and culminated in the adoption of the Draft Convention on the Protection of Foreign Property of 1967.566 The OECD Draft Convention was a multilateral response to the gradual increase in foreign investment abroad and regulatory expropriations taken by many host states during 1960s.567 Contrary to its initial ambition, the OECD Draft Convention did not develop into a legally enforceable instrument.568 Due to objections 566  O ECD Publication No. 1563[6]7/Dec.1962, reproduced in 1–2 International Law Materials 241 (1962–1963). 567  One commentator observed “expropriations of foreign affiliates generally rose through the 1960s. A sharp increase occurred through the early 1970s, which peaked in 1974 and 1975.” Michael S. Minor, The Demise of Expropriation As an Instrument of LDC Policy, 25 Journal of International Business Studies 177, 178 (1994). 568  Dolzer & Stevens (1995), at 2.

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from the less-developed members of the OECD such as Greece, Portugal, and Turkey, the draft Convention did not attain sufficient supports to be opened for signature. A heated debate arose over the meaning of the recognized principles of foreign investment protection in international investment law. This debate reflects continuing struggles between capital-exporting and capital-importing countries; due to a stark disagreement between major capital exporting countries and less developed states, codifying multilateral investment agreements was highly challenging.569 To be more specific, in order to guarantee direct application of inter­national minimum standard, and to extend the reach of the liberalized international invest­ ment regime, the Western states sought to create a multilateral investment treaty with stronger standards of foreign investment protection. On the other hand, a coalition formed opposing the imposition of the international minimum standard. This group of developing and newly independent nations had a different vision as to the proper legal rules concerning the treatment of foreign nationals and their properties. Neither of the two sides won the debate on the proper rule of the protection of foreign investors and their properties abroad.570 The decolonization process in the aftermath of the Second World War intensified the debate between these two sides of countries. In the post-colonial era, as newly independent states had undergone “a revolutionary process of social and economic development and reconstruction”, they aimed to reclaim regulatory autonomy over various assets on their lands. This was instrumental to pursuing economic development.571 Nevertheless, it was extremely difficult to regain sovereign control over natural resources without intruding into existing rights enjoyed by foreign investors under the concessions and privileges 569  See generally, Dolzer & Stevens, Bilateral Investment Treaties 2 (1995); Arghyrios A. Fatouros, International Law and the Third World, 50 Virginia L. Rev. 783, 783–94 (1964); Higgins (1965), at 50; ibid., at 72, In this regard, Higgins turned to Jenk’s perspective on the role of international law in foreign investment protection. As she quoted Jenk’s words in his book “Law, Freedom, and Welfare” published in 1963,   “The older law on the subject [investment protection] has tended to fall into an excessive disrepute by reason of its association with inequalities of political and economic power, but while international law must be unburdened of the odium of being a sanctuary for foreign property protected by superior force, arbitrary conduct by the country of investment is no less prejudicial to the continued international co-operation indispensable for intensified development.” 570  Cordula A. Meckenstock, Investment Protection and Human Rights Regulation; Two Aims in a Relationship of Solvable Tension 27 (Nomos, 2010). 571  Abi-Saab (1962), at 114.

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initially acquired during colonial times. More fundamentally, many developing and newly independent countries had doubts about the actual role of foreign investment in promoting economic development, as Vandevelde notes: The attack on liberal economic principles was not merely rhetorical. Although some developing states had sought to attract foreign investment in the first decades of the post war period, by the 1970s, many developing states were more skeptical about the value of foreign investment and, in the name of Marxism or nationalism or both, expropriated major foreign investments in their territories.572 In any case, disagreements and discontents concerning development of adequate standards of investment protection persisted for several decades. While the capital-exporting Western world continued to demand international legal assurance for the stronger protection of foreign investment, capital-importing countries emphasized their regulatory sovereignty in rendering independent decisions with respect to utilization of national assets. The UN General Assembly Resolution 1803 (XVII) adopted in 1962 sought to find a middle ground between the interests of both sides.573 Pursuant to this Resolution, entitled “Permanent sovereignty over natural resources”, states have the right to expropriate under certain conditions, notably the payment of “appropriate compensation”. The Resolution 1803 reads: In accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication. Numerous decisions rendered by international courts and tribunals have recognized it as providing a clear expression of international customary law.574 Nonetheless, what constitutes the “appropriate compensation” in cases of 572  Vandevelde (1998), at 385. 573  U N General Assembly Resolution 1803 (XVII), Dec. 14, 1962. 574  Texaco Overseas Petroleum Company/California Asiatic Oil Company v. Government of the Libyan Arab Republic, Award (Jan. 19, 1977), 17 I.L.M. 3 (1978), 87; Libyan American Oil Company (LIAMCO) v. Government of the Libyan Arab Republic, Award (Apr. 12, 1977), 20

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expropriation remained ambiguous. From the wording of Resolution 1803, that determination, at least, has to be made pursuant to both the domestic law of the host state and the relevant rules of international law. Foreign investment treaties were still regarded as exceptions to the principle. The Resolution notes that states have sovereignty over their own resources, making strong relations between political independence and economic freedom of states. In the 1970s, Latin American countries, in particular, strongly criticized the existing dynamics of foreign investment regulation, rejecting the legal standards proposed by the major capital exporting countries. These countries perceived that such standards were nothing more than another attempt to interfere with domestic affairs. From their perspective, it was a historically proven fact, as Western colonizers often considered foreign investments a way to exerting and expanding their influence in the developing region.575 Latin American states insisted foreign investors be treated no differently than their nationals; relevant domestic laws of the host states were to be applied for the settlement of foreign investor-state disputes. “As an article of faith, a matter of national and regional identity,”576 the understanding of Calvo doctrine was deeply embedded in the perspective of Latin American states toward foreign investment regulation; these states were highly critical for the idea of arbitrating investor-state dispute under the international mechanism such as the ICSID.577 Many Latin American countries were similarly reluctant to conclude international agreements allowing foreign investors to bring a direct claim against host states.578 The spirit of Calvo Doctrine gained extensive support from other developing regions in Africa and Asia as well.579 As a general matter, countries in African and Asian continents had little or no influence in the creation and development of investment rules in this period. In many

I.L.M. 1 (1981), 103; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168 (Dec. 19), p. 251, para. 244. 575  See for example, Arthur P. Whitaker, The United States and the Independence of Latin America 61 (The Johns Hopkins Press, 1941). 576  Oscar M. Garibaldi, Carlos Calvo Redivivus: The Rediscovery of the Calvo Doctrine in the Era of Investment Treaties, 5 TDM 5, 22–23, 29 (2006). 577  Paul C. Szasz, The Investment Disputes Convention and Latin America (1970–1971), 11 Va. J. Int’l L. 256, 259–260 (1971); Alden F. Abbott, Latin America and International Arbitration Conventions: The Quandary of Non-Ratification, 17 Harv. Int’l L. J. 131, 135, 138–139 (1976); Dolzer & Schreuer (1995), at 239. 578  See generally, Abbott (1976); Guzman (1997). 579  Sornarajah (2010), at 38.

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cases, states in these regions were often forced to sign unequal treaties against their interests.580 The opposition to liberalization of foreign investment regulation was widely expressed at the various UN forums. The apex of this movement was in 1970s when the capital importing countries began to use their majority in UN membership to secure the adoption of General Assembly Resolution, expressing their views on international economic regulation actively.581 In the period between 1973 and 1974, UN General Assembly adopted the Resolution 3171 on the “Declaration on the Permanent Sovereignty over Natural Resources”582 and the Resolution 3201 on the “Declaration on the Establishment of a New International Economic Order”.583 Finally in December 1974, the “Charter of Economic Rights and Duties of States”584 or the Resolution 3281 was created to implement the policy objectives of the NIEO at a more practical level. In the foregoing General Assembly Resolutions, the NIEO proponents claimed their rights to exercise exclusive sovereignty over the administration of domestic resources. This stance had a particular implication for the ways in which these states regulated national expropriation. Paragraph 3 of the Declaration in the Resolution 3171 states: [t]he application of the principle of nationalization [. . .] implies that each State is entitled to determine the amount of possible compensation and the mode of payment, and that any disputes which might arise should be settled in accordance with the national legislation of each State carrying out such measures. This assertion received severe criticism from the major capital exporting states. Compared to the wording of Resolution 3171, the Charter of Economic Rights and Duties of States contained relatively toned-down expressions in many respects. The Charter largely accepted more liberalized terms of Resolution 1803 adopted about a decade earlier in 1962, yet went farther than this Resolution with respect to the “appropriate compensation” in case

580  Abi-Saab (1962), at 95, 96. 581  Weiler (2011), at 370. 582  U N GA Resolution 3171 (XXVIII), Dec. 17, 1973. 583  U N GA Resolution 3201 (S-VI), May 1, 1974. 584  U N GA Resolution 3281 (XXIX), Dec. 12, 1974; for more contemporaneous analysis, see Burns H. Weston, The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 Am. J. Int’l L. 437 (1981).

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of expropriation.585 According to Article 2(2)(c) of the Charter, appropriate compensation is determined by the “relevant laws and regulations and all circumstances that the State considers pertinent,” and not simply on the basis of international law. The NIEO movement sought to reshape international investment regulation in light of the needs of developing and newly independent states. These countries invoked the principle of exclusive sovereignty for securing full control and management of the local assets. The NIEO approach to international economic policy was a significant challenge to the existing hegemony enjoyed by the capital exporting countries in this field of law. This controversy regarding proper standards of foreign investment protection marked the sharp divide between developing and developed states as well as among numerous international law scholars and practitioners. A similar sentiment to that of the NIEO appeared in the General Assembly Resolution, adopted in 1986 concerning the right to economic development of states. Article 1 reads: The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. However, in the course of 1980s and 1990s, the hostility against the BITs and the ICSID mechanism increasingly changed. In order to attract foreign investment, a greater number of developing countries began to sign bilateral agreements and engage in liberal economic reforms.586 Interestingly, even when the NIEO initiatives were at their peak, developing countries exhibited contradictory attitudes toward the conclusion of investment agreements, partly 585  About such disparity of perspectives between a series of Resolutions adopted along these lines, See Lung-chu Chen, An Introduction to Contemporary International Law: A Policyoriented Perspective 347–349 (Yale University Press, 2nd ed., 2000); further noted that “this issue was spotlighted in the arbitral award of Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977) which involved claims against Libya for its nationalization of all of the rights, interests, and property of two international oil companies in Libya.” As he points out, the Claimant companies strongly argued that the Resolution 1803 was an authoritative source of standards whereas the Libya, the Respondent, invoked Article 2(2) (c) of the Charter under the Resolution 3281 on this matter. Ibid., at 348. 586  Many Latin American countries acceded to the ICSID Convention during the period of 1980s and 1990s. See Garibaldi (2006), at 32–35; Vinuales & Langer (2011), at 25–26.

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because they were dependent heavily on the political and economic inputs of the capital exporting states. Many of the developing countries experienced difficulties in sustaining their domestic economies during times of economic crisis, such as the collapse of the IMF monetary system and prolonged stagflation of the 1970s, which were marked by low national growth and high inflation. (iii)

•

Recent Developments in International Investment Law and Arbitration International Investment Agreements

In 1990s, the strong entrepreneurship of the multinational companies in pursuing business opportunities in emerging markets led to a surge in foreign investment in many parts of the world.587 The trend of concluding BITs intensified in this period and the popularity of the ICSID system also increased significantly. While the growth of “BIT generation”588 has been a global phenomenon, a number of regional agreements have included provisions for foreign investment regulation. Chapter 11 of the NAFTA provides a comprehensive investment regime between countries at different stages of development. In particular, it grants investors the right to sue foreign governments using the treatybased, investor-state dispute settlement mechanism. The Colonia Protocol on Reciprocal Promotion and Protection of Investments was adopted by MERCOSUR member states in 1994. For example, the Protocol grants investors “at any moment, fair and equitable treatment” from each MERCOSUR country. Similarly, in the founding treaty of the Common Market for Eastern and Southern Africa (COMESA) established in 1994, Article 159 requires COMESA states to “accord fair and equitable treatment to private investors.” As alternatives to bilateral and regional arrangements, many attempts were made to create a multilateral agreement exclusively on foreign investment, as developed countries increasingly demanded “additional and higher standards of legal protection for their investments than those offered under the domestic laws of developing host countries or under customary international law.”589 The 1992 World Bank Guidelines on Treatment of Foreign Direct Investment

587  Antonio R. Parra, ICSID and the Rise of Bilateral Investment Treaties: Will ICSID Be the Leading Arbitration Institution in the Early 21st Century?, 97 Am. Soc’y Int’l L. Proc 41 (2000). 588  The “BIT generation” is a term originally coined by W. Michael Reisman & Robert D. Sloan, Indirect Takings and its Valuation in the BIT Generation, 74 Brit. Y.b. Int’l L. 115 (2003). 589  Geiger Rainer, Towards a Multilateral Agreement on Investment, 31 Cornell Int’l L. J. 476 (1998).

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also provides relevant attempts in this regard.590 The OECD finally launched a policy agenda to draft a Multilateral Agreement on Investment (“MAI”) in 1995. The purpose of the negotiations was to create multilateral rules for investment, similar to the rules for global trade under the WTO. To be more specific, the MAI sought to “provide a broad multilateral framework for international investment with high standards for the liberalization of investment regimes and investment protection and with effective dispute settlement procedures.”591 However in 1998, this MAI project failed to make substantial progress; differences in views between developed and developing countries could not be reconciled regarding the issue of appropriate investment protection. Similarly, the WTO Members continued to examine the possibility of creating a multilateral investment regulation at the WTO negotiation in 1996, but ultimately suspended the agenda with the failure of the Cancun Ministerial Conference in 2003. The prolonged disagreement between developed and developing countries over proper standards of investment protection has prevented any multilateral investment framework from being created to this date. The case of Energy Charter Treaty (“ECT”) is a notable exception.592 The ECT, concluded in 1994, is a multilateral treaty establishing a regulatory mechanism for cross-border cooperation in the energy industry. Interestingly, it provides a framework for the protection of investments in the energy sector. It is considered “an extension and further elaboration of efforts over the past 50 years” to set down legal rules governing international investment.593 Staggering progress in multilateral initiatives did not stop international investment law from flourishing. The number and significance of the BITs network have increased exponentially. The legal framework governing foreign investment consists of a vast network of international investment agreements. One of the most representative features of the investment regime is its heavy reliance on BITs; foreign investment today is governed by more than 3000 international arrangements that are predominantly bilateral in 590  World Bank, Legal Framework for the Treatment of Foreign Investment: Report to the Development Committee and Guidelines on the Treatment of Foreign Direct Investment (World Bank, 1992), available at http://www.italaw.com/documents/WorldBank.pdf. 591  O ECD, A Multilateral Agreement on Investment—Report by the Committee of International Investment and Multinational Enterprises (CIME) and the Committee on Capital Movements and Invisible Transactions (CMIT), May 25, 1995, OCDE/GD (95)65, 5. 592  European Energy Charter Conference, Dec. 17, 1994, 34 I.L.M. 360. 593  Jeswald W. Salacuse, The Energy Charter Treaty and Bilateral Investment Treaty Regimes in The Energy Charter Treaty—An East-West Gateway for Investment and Trade 321 (Thomas Wälde ed., Kluwer Law International, 1996).

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nature.594 Under these treaties, foreign investors enjoy various substantive and procedural protections in their relations with host state governments. The core protection standards initially established by the modern BITs in the period between 1950s and 1960s have largely endured. The main investment protection standards are protection against unlawful expropriation, non-discrimination standards such as MFN and national treatment, fair and equitable treatment, full protection and security. Although a considerable degree of homogeneity is found among the core elements of investment protection provided in different BITs, no comprehensive system currently exists to promote coordination and coherence in this field of law. Only bilateral solutions have been proposed to deal with what is essentially a multilateral and global problem. Nevertheless, this bilateral approach may ultimately be the best available option, considering the present reality of international law and relations. International investment law today on the one hand, applies to investorstate relations in the context of global economic transactions. On the other hand, although the private entities participate in arbitral proceedings as disputing parties and the primary objective of the BITs lies in the protection of private commercial interests, the BITs remain an international agreement concluded between two sovereign states. The “public” international law aspects contained in the BITs and the investment treaty arbitration has important consequences.595 This issue is significantly related to the question of how 594  According to the World Investment Report submitted by the UNCTAD in 2013, by the end of 2012, the regime of international investment agreements consists of 3,196 treaties. 2,837 of these agreements are BITs. World Investment Report 2013: Global Value Chains: Investment and Trade for Development 10 (United Nations Publication, 2013), available at http://unctad.org/en/publicationslibrary/wir2013_en.pdf). 595  Regarding the private-public debate of international investment law, see generally Prosper Weil, The State, the Foreign Investor, and International Law: The No Longer Stormy Relationship of a Ménage Ą Trois, 15 ICSID Rev. 401, 406 (2000); Gus Van Harten, The PublicPrivate Distinction in the International Arbitration of Individual Claims against the State, 56 Int’l & Comp. L. Q. 377 (2007); William Burke-White & Andreas von Staden, Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations, 35 Yale J. Int’l L. 283 (2010); Stephen Schill (ed.), International Investment Law and Comparative Public Law (Oxford University Press, 2010); Jose E. Alvarez, The Public International Law Regime Governing International Investment (The Hague Academy of International Law, 2011); Alex Mills, Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration, 14 J. Int’l Econ. L. 469 (2011); Caroline Henckels, Indirect Expropriation and the Right to Regulate: Revisiting Proportionality Analysis and the Standard of Review in Investor-State Arbitration, 15 J. Int’l Econ. L. 223 (2012).

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non-investment social regulations such as human rights and the environment may be addressed in investment law and arbitration. To be more specific, the public law features of the BITs can affect the boundaries of the state’s policy space in regulating matters with investment implications. The host state simultaneously pursues different policy objectives in accordance with its legal obligations under domestic and international law; some of these policies are in harmony while others compete and conflict. The public law aspects embedded in the BITs may also change the role and responsibilities of arbitrators in developing jurisprudence of international investment law.

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Investment Treaty Arbitration

The creation of the investor-state arbitration system has been recognized as one of the greatest innovations in international investment law. In the past, there were only few options available for foreign investors to seek redress for their investments that were adversely affected by the host state governments. Foreign investors today may bring a direct claim against the host state before an international arbitration tribunal without the need to exhaust domestic remedies; the arbitration clauses in international investment treaties confer the right to seek arbitration to foreign investors. Although the first ICSID arbitral award came as late as 1990 in the case of AAPL v. Sri Lanka,596 in several decades, ICSID jurisprudence showed remarkable progress. The rise of investor-state dispute settlement is closely connected to the spread of BITs in the late twentieth century. Investment arbitration may also take place in a range of forums such as the London Court of International Arbitration, the International Chamber of Commerce, the Stockholm Chamber of Commerce, the Hong Kong International Arbitration Centre or the United Nations Commission on International Trade Law (“UNCITRAL”). According to the UNCTAD’s World Investment Report of 2012, the year 2011 recorded the highest number ever of investor-state disputes: 46 new cases were newly added and registered. In a more recent 2014 UNCTAD report, 560 publicly known treatybased disputes are registered. The remarkable expansion of investor-state arbitration does not indicate that the current system is satisfactory in all aspects. One prominent scholar has identified the “breakdown” in the control systems of international arbitration under the ICSID mechanism as posing a significant problem.597 596  Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, 30 I.L.M. 577 (1991) [“AAPL. v. Republic of Sri Lanka”]. 597  See W. Michael Reisman, The Breakdown of the Control Mechanism in ICSID Arbitration, 4 Duke L. J. 739 (1989); see also W. Michael Reisman, Systems of Control in International

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The heavily decentralized composition of the arbitration system has posed problems: the arbitral tribunals individually instituted on the basis of BITs often yields inconsistent decisions and enforcement. Some commentators state that in an increasingly multifaceted investment treaty universe, “spearheaded by a group of elite arbitrators, investor-state arbitration can work toward generating a jurisprudence constante and creating convergence rather than faction.”598 The current system of investor-state arbitration has also presented problems of legitimacy and accountability of the arbitration proceedings.599 In this regard, three countries have officially withdrawn from the multilateral framework of the settlement of investor-state disputes.600 In 2007, the World Bank received a notice of denunciation of the ICSID Convention from Bolivia. In 2009, Ecuador submitted a notice of denunciation of the ICSID Convention. In 2012, Venezuela became the third country that communicated to the World Bank its official withdrawal from the ICSID. These withdrawals were largely made in protest of the ongoing investor-state arbitrations and arbitral awards involving three countries. Moreover, according to the UNCTAD 2013 Report concerning investment policymaking, since 2008, Venezuela, Ecuador, Bolivia, South Africa and Indonesia have each terminated at least one or more BITs.601 For example, Ecuador terminated nine BITs (with Cuba, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Romania, and Uruguay) a year before submitting a notice of denunciation of the ICSID Convention. In 2010, the Constitutional Court of Ecuador declared arbitration Adjudication and Arbitration: Breakdown and Repair 46–106 (Duke University Press, 1992). 598  Stephan Schill & Marc Jacob, Common structures of investment law in an age of increasingly complex treaty-making, Columbia FDI Perspective, No. 94, Vale Columbia Center on Sustainable International Investment (May 6, 2013) at 2, available at http://ccsi.columbia .edu/files/2014/01/FDI_94.pdf. 599  See Van Harten (2007) at 371; Stephan W. Schill, Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach, 52 Va J. Int’l L. (2011); this issue of legitimacy of investment arbitration will be revisited in the next Chapter. 600  I CSID, Press Release, Bolivia Submits a Notice Under Article 71 of the ICSID Convention, May 16, 2007; ICSID, Press Release, Ecuador Submits a Notice Under Article 71 of the ICSID Convention, Jul. 9, 2009; ICSID, Press Release, Venezuela Submits a Notice Under Article 71 of the ICSID Convention, Jan. 26, 2012. 601  U NCTAD, International Investment Policymaking in Transition: Challenges and Opportunities of Treaty Renewal, pp. 2–3, IIa Issues Note No. 4, Jun. 2013, available at http://unctad .org/en/PublicationsLibrary/webdiaepcb2013d9_en.pdf.

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clauses of six more BITs (with China, Finland, Germany, the UK, Venezuela and the U.S.) as incompatible with its national Constitution. In 2014, Indonesia terminated its BIT with the Netherlands.602 According to the official statement of the Dutch Ministry, the Indonesian government has mentioned it intends to terminate all of its 67 BITs. A gradual increase in the number of withdrawals from the ICSID and the denunciation of BITs shows that the legitimacy of the current international investment system has increasingly been under serious questions.603 D

Common Grounds

Chapter 3 has examined how international regimes for human rights protection and international economic law of global trade and foreign investment regulation have evolved in the broader context of historical development of international law. These sub-branches of international law are the basic building blocks of the international legal system. When comparing the two fields of law, it becomes obvious that while there are differences in historical backgrounds, objectives, as well as substantive contents of rights and obligations, the two areas of international regimes share some important elements. The present section identifies five aspects of commonalities between international human rights and legal regimes of global trade and foreign investment. 1 Treaty-based Foundations—Binding Rights and Obligations Each international regime is a treaty-based system. Treaties, primarily derived from state consent, are the fundamental bases for both fields of law. Treaties are also vehicles for facilitating international cooperation in the field of human rights and economic regulation. Although respect for human rights was an essential concept throughout the history of philosophical and religious traditions, it took a long time for these traditions to be translated into the declarations and constitutions of modern domestic law. The international legal recognition of the basic rights of each person, by the very nature of his or her personhood, is a relatively new idea. 602  I ISD, Investment Treaty News, News in Brief, May 14, 2014, available at http://www.iisd .org/itn/2014/05/14/news-in-brief-15/. 603  See generally, Roberto Castro de Figueiredo, Euro Telecom v. Bolivia: The Denunciation of the ICSID Convention and ICSID Arbitration under BITs, Transnat’l Disp. Mgmt. (2008); UNCTAD, Denunciation of the ICSID Convention and BITs: Impact on Investor-State Claims, IIa Issues Note No.2, Dec. 2010.

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The widespread “internationalization of human rights” became the center of international legal debate after the Second World War.604 The UN, established in 1945, has provided a multilateral forum for negotiating international rules in the domain of human rights protection. With the adoption of major human rights instruments, burgeoning interest in the idea of guaranteeing universal human rights was legally institutionalized at the international forum. International human rights regime has become a major branch of international law in a relatively short period of time. On the other hand, the origin of international rules on global trade and foreign investment can be traced back to antiquity—as regulating commercial exchange of goods, services and capital between countries has been a perennial primary interest for any empire, kingdom or nation state of all times. Contemporary international economic law encompasses a complex network of legal arrangements governing various transnational economic conducts. To this end, the WTO has provided a major framework for the creation and enforcement of legal rules and policies on international trade. International regulation of foreign investment constitutes an equally integral part of the IEL. International protection of foreign investors has a long history, spanning centuries of debate and practice. While the current trade regime has a multilateral foundation at its core, foreign investments are governed by more than 3000 international arrangements that are predominantly bilateral in nature.605 As a result of rapid expansion of the international economic regime during past six decades, almost every conceivable governmental economic regulation must take into account the international implications of its activity. Today, virtually every state has joined both treaty-based regimes. In the area of human rights, more than 160 states have ratified the basic Human Rights Covenants, the ICCPR and the ICESCR. All UN Member States have ratified at least one core international human rights treaty, and 80 percent have ratified four or more.606 The WTO now consists of 162 members. A plethora of regional and bilateral arrangements govern trade and foreign investment in 604  Similarly, Louis Henkin observes that “the internationalization of human rights, the transformation of the idea of constitutional rights in a few countries to a universal conception and a staple of international politics and law” is a phenomenon of the mid twentieth century. Henkin (1990), at 13–14. 605  According to the World Investment Report submitted by the UNCTAD in 2013, by the end of 2012, the regime of international investment agreements consisted of 3,196 treaties. 2,837 of these agreements are bilateral agreements. World Investment Report 2013: Global Value Chains: Investment and Trade for Development 10 (United Nations Publication, 2013), available at http://unctad.org/en/publicationslibrary/wir2013_en.pdf). 606  See http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx.

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Western and Eastern, democratic and authoritarian, developed, developing as well as least-developed countries. A broad membership of one treaty indicates that a high level of consensus exists in the international community, over the regulation of certain areas covered by that treaty. By concluding treaties, states agree to form a set of collective legal responses to deal with the problems of common concern in that area. Since states give their consent to be bound by the rules and principles contained in those international agreements, they are legally required to take appropriate actions and make policies in accordance with rights and obligations under respective international commitments. As a consequence, the sovereign capacity to regulate various political, economic, and social matters of domestic affairs is inevitably restrained by the rules and principles of these treaties. States, as parties to multiple international arrangements in both fields of law, face a range of treaty rights and obligations separately and simultaneously. Under this circumstance, it is not realistic that states would be able to adhere to their obligations at all times, and with the same degree of commitment. In actual practice, their policy choices are heavily confined by the limit of available resources and regulatory capacity. In some cases, the conditions required by these treaties are contradictory or conflicting. These difficulties may impose regulatory burdens on states, but do not give an automatic excuse for non-compliance. 2 Equal Status If one norm is hierarchically superior to the other, state can easily circumvent the foregoing situations of difficulty; state is allowed to prioritize the implementation of superior norms. However, the relationship between international human rights and economic law cannot be conceived in the form of a normative hierarchy, as the primary sources of these regimes are identical—namely the treaties derived from the consent of states with equal sovereignty. As a matter of principle, “international rules are equivalent, sources are equivalent, and procedures are equivalent, all driving from the will of states.”607 There is no a priori hierarchy among their relationship to one another; “a priori hierarchy of sources is an alien concept” to the present international legal order.608 Arguably, a limited number of human rights norms, which have been recognized as jus cogens, may constitute an exception. In fact, the substantive 607  Dinah Shelton, Normative Hierarchy in International law, 100 Am. J. Int’l L. 291, 291 (2006). 608  Mark E. Villiger, Customary International Law and Treaties: A Study of Their Interactions and Interrelations, with Special Consideration of the 1969 Vienna Convention on the Law of Treaties 85 (Martinus Nijhoff Publishers, 1985).

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contents of jus cogens or peremptory norms are strongly associated with the rules for the protection of fundamental human rights. After examining the legal theories and practices of jus cogens, one prominent scholar concludes that “an almost intrinsic relationship” exists between human rights and peremptory norms.609 Nevertheless, the definition and scope of jus cogens norms are far from clear, and are highly controversial.610 Some scholars argue for the constitutional primacy of human rights over all other rules of international law, including economic regimes. In a series of Resolutions, policy reports and analytic studies, UN human rights organs and treaty bodies have repeatedly pointed to the Vienna Declaration and Programme of Action to support the primacy of human rights: the Vienna Declaration and Programme of Action confirms that the promotion and protection of human rights and fundamental freedoms is the first responsibility of Governments and that the human person is the central subject of development. However, the present structure of international law does not seem to be equipped to incorporate such a bold notion. 3 International Agreements Governed by Public International Law The treaty-based foundation has another important implication for international human rights and economic regimes. From their creation and development, to enforcement and implementation, these international agreements are governed by relevant rules of general international law. The 1969 Vienna Convention provides a set of fundamental rules on how treaties should be created, amended, and terminated, as well as applied and interpreted. For example, in order to apply rules to specific cases and clarify the meaning of these rules in practice, international judges and arbitrators commonly use the tools of treaty interpretation, primarily set by the VCLT. According to the practices of various international courts and tribunals, the rules of treaty interpretation in the VCLT have attained the status of customary or general international law.

609  Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 Eur. J. Int’l L. 491, 491 (2008). See for more analysis on the close association of human rights and jus cogens, Myres S. Mcdougal, Harold D. Lasswell and Lung-Chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity 345 (Yale University Press, 1980); Simma & Alston (1989), at 82. 610  See infra, Section B-1.1, Chapter 4.

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The “Public” Nature—Relationship between States and the Individuals The two areas of international regimes commonly deal with the relationship between state and individuals, but in different forms and to varying degrees. These international regimes seek to prohibit or require certain state actions that significantly affect the rights of individuals. Some of the basic rules of international human rights law and investment law grew out of a long-standing legal debate as to how the state should treat nationals and aliens in its territory, particularly regarding the debate on state responsibility for injuries to the lives and properties of aliens.611 Both regimes mark a departure from traditional inter-state model of international law. As explored above, many scholars have pointed out that these regimes share the same origin.612 Even well before the advent of human rights and investment treaties, the legal protection of aliens’ rights seemed to have common roots in international law. The protection offered by the state of nationality seemed to be insufficient to protect the lives and properties of individuals in an effective manner. Not all rules of WTO law directly regulate the relationship between the state and individual private enterprises. The current multilateral trading system primarily regulates reciprocal relationship between states. Nevertheless, the outcome of applying international trade rules in practice substantially influence the vital interests of various non-state entities. Some commentators argue that foreign investment regulation must be viewed in the lens of its outweighing private and commercial implications; they find private features contained both in the nature of IIAs and investment treaty arbitration. However, international investment law is a “public” international law regime.613 IIAs are international agreements concluded between two countries. Under international investment law, various substantive and procedural protections are afforded to foreign investors in their relations with the host state governments. For example, BITs contain the rights of foreign 4

611  Steiner & Alston (1996), at 72–74; Sornarajah (2010), at 89. 612  Pierre-Marie Dupuy & Jorge E. Vinuales, Human Rights and Investment Disciplines: Integration in Progress in International Investment Law (Marc Bungenberg, Jojn Griebel, Stephan Hobe & August Reinisch eds., Nomos, 2012). 613  For the debate on the private-public distinction of international investment law, see generally, Weil (2000), at 406; Gus Van Harten, The Public-Private Distinction in the International Arbitration of Individual Claims against the State, 56 Int’l & Comp. L. Q. 377 (2007); Stephen Schill, International Investment Law and Comparative Public Law (Oxford University Press, 2010); Alvarez (2011); Alex Mills, Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration, 14 J. Int’l Econ. L. 469 (2011).

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investors against the host state, including the right to be compensated for expropriation, to be treated equitably and fairly, and not to be discriminated against on grounds of nationality. Since all international human rights and economic regimes directly or indirectly deal with the questions of how and to what extent the states should provide protection for private persons and entities, the normative contents of these regimes inevitably overlap. On some occasions, they also refer to the same terms of protection standards. For instance, both the human rights and investment regimes deal with the concept of expropriation, the right to property, fairness in treatment, and adequate access to justice. 5 Aims for Peace and Security of International Community It is historically proven that the creation of international rules in the area of human rights, global trade and foreign investment are all connected to states’ unending efforts to maintain peace and security in the international community. The early Romans narrowly defined peace as the absence of war (“pax as absentia belli”).614 The meaning of pax in Latin is related to pact, as in pacta sunt servanda: in this understanding, peace is a contractual and mutually agreed relationship which is considered as the “source of the Western international law tradition”. The Chinese tradition sees the meaning of peace in a more holistic sense. “和平” (peace) contains more of the notion of world harmony in its conceptualization of peace: this term envisions “harmony between the international, social, and personal spheres as a condition for all of them to come true.”615 Interestingly, 平 can also mean “equality”, and similar meanings can be found in the Korean and Japanese words for peace and equality. Some commentators see peace as a “collective good”,616 while others consider it a good or as a “dynamic process of cooperation among all states and peoples founded on principles of respect for freedom, independence, national sovereignty, equality and human rights.”617 Regardless of what it exactly means, 614  Nsongurua J. Udombana, The Right to a Peaceful World Order in International Human Rights Law: Six Decades after the UDHR and Beyond 58 (Mashood A. Baderin & Manisuli Ssenyonjo eds., Ashgate, 2013). 615   Johan Galtung, Peace by Peaceful Means: Peace and Conflict, Development and Civilization 226 (International Peace Research Institute, 1996). 616   Ruben P. Mendez, Peace as a Public Good in Global Public Goods: International Cooperation in the 21st Century 382 (Inge Kaul, Isabelle Grunberg & Marc A. Stein eds., Oxford University Press, 1999). 617  Vanderkerckhove, Peace through Solidarity: A priority for the Next 125 Years, Dissemination 1 (1988).

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lasting peace is the “basic precondition for virtually all other international goods”.618 Although peace is not the only purpose, it is one of the most important and long-standing aspirations of international law. Without a doubt, the international protection of human rights has been considered instrumental to peace. As Schachter notes, this was true even in the seventeenth century, when the protection of religious minorities was raised as a primary concern of the Treaty of Westphalia. The underlying premise shared by the sovereigns was that this policy of protection would reduce the cause of war.619 A similar position was adopted during the formative years of the UN and its special human rights agencies. UN Member States strongly asserted that massive human rights violations would lead to “tensions that could break into hostilities” and severely undermine international peace.620 The largescale human rights violations committed in the course of wartime atrocities made it clear that the domestic guarantee of human rights was no longer sufficient to maintain peace and security. International economic law and policy have also been considered as crucial to achieving peace. As previously explored, this idea was evident in the writings of some Enlightenment thinkers in the seventeenth and eighteenth centuries; trade and commerce were critical peacekeeping tools that protected states from both internal and external threats. The essential role of inter-state commerce in pursuing peace was highlighted by many scholars of the time.621 Active international commerce was expected to secure peaceful relations between different nations and lead them to move towards achieving a common good. The increase in international trade and commerce was conceived 618  Lea Brilmayer, The International Justice and International Law, 98 West Va. L. Rev. 611, 615 (1996). 619  Schachter (1991), at 331. 620  Ibid. 621  In his seminal book, “The Sprit of Laws” (1750), Montesquieu observed, “[t]he natural effect of commerce is to lead to peace. Two nations that trade with each other become reciprocally dependent; if one has an interest in buying, the other has an interest in selling, and all unions are founded on mutual needs. Montesquieu, The Sprit of the Laws (1750) 338 (Anne M. Cohler, Basia C. Miller & Harold S. Stone eds., Cambridge University Press, 1989); similarly, Kant, wrote the following in “Perpetual Peace: A Philosophical Sketch” (1795): “[t]he spirit of commerce sooner or later takes hold of every people, and it cannot exist side by side with war. And of all the powers (or means) at the disposal of the power of the state, financial power can probably be relied on most. Thus states find themselves compelled to promote the noble cause of peace, though not exactly from motives of morality.” Kant’s Political Writings 114 (Hans Reiss ed., Cambridge University Press, 1991).

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as a means of preventing and ending wars. International trade and investment played a pivotal role, not only in gaining economic benefits, but also in fostering interstate peace and security. This line of a historical connection with peace is found in the contemporary context as well. The WTO Secretariat once stated: “when the world economy is in turmoil, the multilateral trading system can contribute to stability. Some would argue that this can even contribute to international peace.”622 The Minister of Foreign Affairs of Liberia also noted the importance of international trade to engender peace and rebuild her country from the devastation caused by the ravage of civil wars. In her belief, the “increased trade has an equally important role to play in solidifying peace in post-conflict situations”. She strongly asserts that the “trade and export promotion facilitates the transformation of the lives of our people, and is critical to sustain our still fragile peace.” Nevertheless, increases in trade and investment alone cannot promote peace.623 622  W TO, Ten Things the WTO Can Do (WTO Publications), electronically available at http:// www.wto.org/english/res_e/publications_e/wtocan_e.pdf. 623  Statement by H.E. Ms. Olubanke-King-Akerele, Minister for Foreign Affairs, Republic of Liberia, at WTO Public Forum (Oct. 4–5, 2007); the full text of her statement is available at hhttp://www.wto.org/english/forums_e/public_forum2007_e/plenary_session_kinga kerele_e.pdf.

CHAPTER 4

The Project of Regime Accommodation: Managing Interaction and Conflict between International Human Rights and Economic Law In international legal system, specialized regimes of international law inevitably interact and conflict each other at various stages of decision-making. International rules on the regulation of global trade and foreign investment permeate virtually all aspects of our lives, going well beyond purely economic activities, including the area of human rights protection. Rules of governing global trade and foreign investment set limitations on what states can do in terms of domestic policies, which are often closely and directly connected to the enjoyment of human rights. From a different angle, one of the major challenges for international human rights regime is how to ensure that rules and practices of extraneous normative origins do not interfere with the enjoyment of human rights. Chapter 4 analyzes how international economic regime has accommodated, incorporated or reflected external rules, principles and concerns of non-IEL regulations including human rights law. This chapter examines to what extent non-IEL rights and obligations can be considered in the formation, interpretation, and implementation of international economic regime. Accommodation-minded policies are made through different mechanisms of international decision-making. As outlined in chapter 2, the features of regime accommodation can be conceived as legislative, administrative, and adjudicative. In practice, various decision-makers take parts in regime accommodation in international law; the contents and extents of their participations primarily depend on varying authorities they possess. For example, in managing interaction and conflicts between multiple international regimes, the role and capacity of an arbitrator rendering decisions in investor-state arbitration cannot be identical with those of Special Rapporteurs under the mandates of UN agencies. This chapter ultimately aims at suggesting a set of useful guidelines for relevant decision-makers to address non-IEL concerns including human rights in the international economic law.

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Legislative Efforts and Administrative Coordination

Relationship with External International Agreements and Organizations In order to prevent and avoid potential regime conflict, treaty drafters may make a statement as to how the treaty must be understood in its relationship with external treaties and other legal arrangements. 1

1.1

Coexisting Rights and Obligations in Other International Agreements In the case of bilateral trade agreements, the parties to the treaty may include a provision containing a general remark that takes note of their existing rights and obligations, derived from other treaties to which both parties are party. For instance, Article 1.3 of the Korea-Chile FTA, entitled “Relation to Other International Agreements” reads: 1. The Parties affirm their existing rights and obligations with respect to each other under the WTO Agreement and other international agreements to which both Parties are party. 2. In the event of any inconsistency between this Agreement and such other agreements under paragraph 1, this Agreement shall prevail to the extent of the inconsistency, except as otherwise provided in this Agreement.624 Similar drafting practices are found in the FTAs in which China was involved: Article 3 of the China-Pakistan FTA, Article 20.1 of the China-Hong Kong FTA and Article 20.1 of the China-Macao FTA have a provision on their respective relations to other international arrangements. Article 703(1) of the FTA concluded between Australia and Thailand makes reference to specific instruments contained in other international agreements. The parties to this treaty specifically state that they confirm the “existing rights and obligations relating to technical regulations.” These regulations include the “TBT Agreement” under the WTO regime and other “environmental and conservation agreements” to which Australia and Thailand are party. In the case of treaties adopted at the regional level, with a greater number of memberships, the EFTA-SACU FTA contains a provision regarding

624  The full text is available at http://aric.adb.org/fta/korea-chile-free-trade-agreement.

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its general relations to other agreements in Article 4.625 In June 2006, the countries contained in the European Free Trade Association (EFTA) and the Southern African Customs Union (SACU)626 signed the agreement to regulate various aspects of trading relationship among them. It comprehensively deals with trade in goods as well as other legal issues such as competition law, trade in services, public procurement and inter-state cooperation. Article 4 of the EFTA-SACU FTA states: 1. The Parties confirm their rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization and the other agreements negotiated thereunder (hereinafter referred to as “the WTO Agreement”) to which they are parties and any other international agreement applicable between them. 2. No provision of this Agreement shall be interpreted as exempting the Parties from the obligations which are incumbent on them under other international agreements. Here, Article 4.1 of the EFTA-SACU FTA takes note of parties’ rights and obligations under other legal arrangements to which they are parties. It further provides that provisions contained in the FTA shall be interpreted in consideration of simultaneously existing obligations under other international agreements that bind parties. In general, not all parties must be parties to these external international agreements to be within the meaning of Article 4.2. Alternatively, parties to the treaty can also contain a special clause regarding an interpretative principle of mutual supportiveness. Strictly speaking, this type of provision may not be considered as a conflict clause. The principle of mutual supportiveness merely suggests that two potentially conflicting international agreements should consider the existence of the other; its main objective is not at determining superiority or priority between conflicting rules of international law. Nevertheless, this type of clause can assist treaty interpreters in dealing with normative conflicts between different international regimes. 625  The full text is found at http://www.efta.int/media/documents/legal-texts/free-traderelations/southern-african-customs-union-SACU/EFTA-SACU%20Free%20Trade%20 Agreement.pdf. 626  The EFTA was created with the aim of promoting trade liberalization among them. These countries are Switzerland, Norway, Iceland and Liechtenstein. On the other hand, the SACU, one of the world’s oldest customs unions, consists of South Africa, Botswana, Lesotho, Namibia and Swaziland. The EFTA-SACU FTA contains seven Chapters, with 44 Articles and eight Annexes.

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The notion of mutual supportiveness is well reflected in some recent international environmental instruments. The Cartagena Biosafety Protocol to the Convention on Biodiversity (“Biosafety Protocol”) refers in its preamble to the rights contained in other international arrangements. Paragraphs 8–10 of the Preamble to the Biosafety Protocol read: (8) recognizing that trade and environment agreements should be mutually supportive with a view to reaching sustainable development; (9) Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements; (10) Understanding that the above recital is not intended to subordinate this Protocol to other international agreements. The Preamble of the Stockholm Convention on Persistent Organic Pollutants (“POPs Convention”) shares similar language with the Biosafety Protocol. In Paragraph 9, it is stated that “[r]ecognizing that this Convention and other international agreements in the field of trade and the environment are mutually supportive.” The same line of thought is also reflected in the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Article 20 reads as follow: (1) imposes a good faith obligation on the parties in the application of the treaty and then continues as follows: “Accordingly, without subordinating this Convention to any other treaty (a) they shall foster mutual supportiveness between the Convention and other treaties, and (b) when interpreting and applying other treaties. . . . Parties shall take into account the relevant provisions of this Convention. (2) Nothing in this Convention shall be interpreted as modifying rights and obligations of Parties under other treaties In consultation with these clauses contained in the treaties, interpreters can find out how states parties initially envisioned the resolution of certain types of conflict. 1.2 Priority of One Treaty Over Another Conflict clauses or conflict avoidance clauses stipulate the ways in which a certain rule takes priority over another rule or give deference to external treaties.627 By prescribing conflict clauses, parties to the treaty express how they want to 627  Sadat-Akhavi (2003), at 85–97.

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address norm conflicts, and how they perceive the relationship between the treaty at hand and external norms of other international regime. According to the ILC Report submitted for drafting the VCLT, the conflict clause is a treaty provision that intends to “regulate the relation between the provisions of the treaty and those of another treaty or of any other treaty relating to the matters with which the treaty deals.”628 Conflict clauses make explicit or implicit reference to other treaties so that the decision-makers may resort to such rules in resolving potential normative conflicts.629 While conflict avoidance provisions can take multiple forms, these clauses typically give normative priority to the present treaty. Aust identifies some examples of this kind: 1) treaty provision that makes the present treaty prevail over all other treaties, past and future (e.g. UN Charter Article 103), 2) treaty provision that requires the parties not to enter into later inconsistent treaties, with another party or a third party, 3) treaty provision that confirms - for parties to the treaty—present treaty prevails over earlier treaties, 4) comprehensive provisions declaring universal application of the present treaty over the many existing treaties on the same topic (e.g. UNCLOS Article 311).630 For example, Article 134 of the Geneva Convention Relative to the Treatment of Prisoners of War of 1949 gives priority over existing treaties as it reads: “the present Convention replaces the Convention of July 27, 1929, in relations between the High Contracting Parties.” Similarly, Article 311(1) of the 1982 UN Convention on the Law of the Seas (“UNCLOS”) states: [t]his Convention shall prevail, as between States Parties, over the Geneva Convention on the Law of the Sea of 29 April 1958.631 The conflict clause contained in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”) of 1989, envisions the Basel Convention’s priority over future treaties that may be adopted by the parties. Article 11(1) prescribes: Notwithstanding of the provisions of Article 4, paragraph 5, Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other 628  ILC, Y.B. Int’l L. Comm’n Vol. II (1966), p. 214. 629  Pauwelyn (2003), at 237, 437; Vranes (2009), at 67. 630  Aust (2007), at 219–225. 631  At the same time, this provision can be understood as explicitly incorporating lex posterior principle in the UNCLOS.

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wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from environmentally sound management of hazardous wastes and other wastes as required by this Convention. The Convention on Biological Diversity (“CBD”) also contains a conflict clause, entitled “Relationship with Other International Convention”. In Article 22, a clear priority is given to the CBD over any existing agreement, “except where the exercise of those rights and obligations would cause serious damage or a threat to biological diversity.”632 Article 8 of the North Atlantic Treaty Organization (“NATO”) Treaty, the treaty for mutual military defense and assistance within states parties, is another example. Article 8 prioritizes the NATO Treaty over existing treaties that conflict with it, and further requires parties to abstain from entering into international agreements that are in conflict with the NATO treaty. It states: Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this treaty.633 The European Union Economic Partnership Agreement (“EPA”) was concluded against the backdrop of a close economic cooperation scheme established between the Forum of the Caribbean Group of African, Caribbean and Pacific 632  Article 22 of the CBD (Relationship with Other International Convention): 1. The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. 2. Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea. 633  There are treaties containing provisions to require Parties to the treaty abstain from entering into treaties that can be potentially conflicting. These provisions are not a conflict clause in a strict sense. For instance, Article 90 of the UN Convention on Contracts for the International Sale of Goods reads: “[t]his Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties, to such agreement.” Along these lines, Article 311(6) of the United Nations convention on the Law of the Sea of 1982 states: “State Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in Article 136 and that they shall not be party to any agreement in derogation thereof.”

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States (“CARIFORUM”) and the European Union. Article 72(c) provides a type of conflict clause in the following terms: [i]nvestors do not manage or operate their investments in a manner that circumvents international environmental or labour obligations arising from agreements to which the EC Party and the Signatory CARIFORUM States are parties. While the use of conflict clauses has been a common practice in international law,634 this type of conflict resolution technique has some limitations. It is practically impossible to prepare for each and every potential scenario of conflict in advance. 1.3 Coordination with Other International Organizations WTO regime acknowledges essential roles of external inter-governmental organizations in administering various aspects of instruments created under its auspices. The GATS’s Annex on Telecommunication is one example. According to paragraph 6(a), to provide better technical supports for the development of telecommunications infrastructure under the GATS, WTO members “endorse and encourage” participation of various entities such as the International Telecommunication Union (“ITU”), the UNDP, and the World Bank “to the fullest extent practicable.” Article 10(4)(b) of the WTO Agreement on Agriculture (“AOA”) accepts the practical role of the Food and Agriculture Organization (“FAO”) in examining international food aid transactions. The work of the Codex Alimentarius Commission (“CAC”) is recognized in the SPS Agreement. In view of preambular text and Article 12 of the SPS Agreement, the CAC is a standard-setting organization for food safety which implements the Food Standards Programme. Other relevant intergovernmental institutions include the International Office of Epizootics and the Secretariat for the International Plant Protection Convention. A Committee on Sanitary and Phytosanitary Measures established for the administration of the SPS Agreement is required to monitor process of international harmonization and the use of international standards and guidelines, in close consultation with the foregoing organizations. The TRIPS establishes “a mutually supportive relationship” with the WIPO as well as other relevant organizations for the management of intellectual property.635 In regulating the acquisition or maintenance of intellectual property rights protection, the WTO clearly seeks

634  ILC Fragmentation Report (2006), paras. 267–294. 635  WTO, TRIPS Agreement, Preamble, Paragraph 6.

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to coordinate its authority with the WIPO, as found in many provisions of the TRIPS Agreement.636 2 Environmental Regulation in International Economic Law and Policy 2.1 Multilateral Setting Many attempts have been made to assess the normative relevance of noneconomic concerns in international economic policy-making. Addressing environmental concerns in trade and investment policy-making has gained wider support than other issues. A number of inter-governmental organizations have examined IEL’s growing impact on the environment protection. The United Nations Environment Programme (“UNEP”), established in 1972, is an international organization that promotes international cooperation in the field of environment protection. The UNEP has consistently produced policy reports concerning the relationship between trade and its effects on the environment. In the context of promoting sustainable development along with the growth in trade and investment, the UNEP has examined various related issues including air and water pollution, exhaustion of resources, climate change, and deforestation.637 In a series of GATT trade negotiation rounds, non-trade concerns, particularly international environmental regulations began to be noted by delegations in the Tokyo Round. The negotiation mandates were extended to assess the implications of international environmental protection for trade policymaking. The 1980s and the early 1990s saw more active discussion on trade-related environmental issues. At the global trade regulation forum, reform proposals were made to protect rules and principles of environmental law from conflicting with trade obligations. For example, Contracting parties to the GATT continued discussion as to what extent environmental measures were permissible under the GATT framework in negotiating and adopting the Agreement on Technical Barriers to Trade (“TBT”) and the relevant Standards Code, since environmental measures often restricts trade in the form of technical regulations and standards. Members made themselves clear that environmental measures, in the form of technical regulations, should not be prepared, adopted or applied with a view to, or with the effect of creating unnecessary obstacles to international trade. Although the parties noted some aspects of the tradeenvironment linkage, the focus of their negotiation mandates was at the trade

636  For example, TRIPS Articles 5, 28, 63(2) and 68, 89. 637  Important initiatives concerning the trade-environment debate taken under the auspices of the UNEP are found at http://www.unep.org/greeneconomy/GreenEconomyandTrade /UNEPResourcesonTradeandEnvironment/tabid/104334/language/en-US/Default.aspx.

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liberalization. Other examples of addressing trade-related environmental measures are the general exception clause in Article XIV of the GATS,638 Article 12 concerning the payments under environmental programmes of Annex 2 to the Agreement on Agriculture,639 the detailed definition of the sanitary or phytosanitary measures offered by the SPS Agreement,640 and Article 27(2) and (3)641 concerning the exclusion of certain plants, animals and organisms from commercial exploitation and patentability in the TRIPS Agreement. The discussion of the trade-environment linkage was equally prevalent in international environmental forums and inputs from their works also had impacts on ongoing trade negotiations. In June 1992, the UN Conference on Environment and Development was held in Rio de Janeiro. At the conclusion of this 1992 Conference, a number of important documents such as Agenda 21 were produced. Agenda 21 articulated a broad plan of action in the fields of trade, environment and sustainable development. It also urged relevant intergovernmental organizations to engage in a dialogue concerning the relationship between trade, development and environment issues. In particular, Agenda 21 made recommendations for GATT to conduct studies to enhance the relationship between trade and environment.642 638  GATS Article XIV (General Exceptions): Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: [ . . . ] (b) necessary to protect human, animal or plant life or health. 639  WTO Agreement on Agriculture, Annex 2, Article 12. 640  WTO SPS Agreement: Definitions 1. Sanitary or phytosanitary measure—Any measure applied (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests. 641  TRIPS Agreement, Article 27 (Patentable Subject Matter). 642  United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, Jun. 3 to 14, 1992, L/6892/Add.3, 39S/303, Agenda 21 (1992), Section I (Social and Economic Dimensions), para. 2.22.

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Responding to this call in the following year of 1993, the GATT expressed its goal of developing policies to ensure “compatible” and “mutually reinforcing” relationship.643 In the context of discussion trade-environment issue, the principle of mutual supportiveness has been referred in a number of instruments submitted by WTO agencies. The Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking, constituting a part of Uruguay Round declarations, is one such example.644 According to paragraph 5 of the Declaration, “the interlinkages between the different aspects of economic policy require that the international institutions with responsibilities in each of these areas follow consistent and mutually supportive policies.” At the conclusion of Uruguay Round in 1994, the Marrakesh Ministerial Decision on Trade and Environment was adopted along with the Final Act, creating the WTO Committee on Trade and Environment (“CTE”). This Ministerial Decision elaborates on the institutional objectives of the CTE as follows: (a) to identify the relationship between trade measures and environmental measures in order to promote sustainable development; and (b) to make appropriate recommendations on whether any modifications of the provisions of the multilateral trading system are required, compatible with the open, equitable and non-discriminatory nature of the system which are necessary for: – enhancing positive interaction between trade and environmental measures for the promotion of sustainable development; – adherence to effective multilateral trade disciplines to ensure responsiveness of the multilateral trading system to environmental objectives while avoiding protectionist trade measures; and – surveillance of trade measures used for environmental purposes, of trade related aspects of environmental measures that have significant trade effects, and of effective implementation of the multilateral disciplines governing those measures

643  GATT Decision of the Contracting Parties on follow-up to the recommendations in the area of trade of the United Nations Conference on Environment and Development, Doc. No. SR.48/1, 1993, 13. 644  Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking, Final Act Embodying the Results of the Uruguay Round Multilateral Trade Negotiations; the full text is found at https://www.wto .org/english/docs_e/legal_e/32-dchor_e.htm.

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The CTE has examined the relationship between trade and environmental issues.645 The WTO’s approach to existing legal arrangements in international environment law also shows its willingness to take environmental concern into account. Among the 235 multilateral environmental agreements (“MEAs”) identified by the UNEP in 1999,646 the CTE took note of 22 MEAs containing trade-related measures that would affect state governments’ implementation of WTO obligations.647 Notably, during the Doha Ministerial Meeting held in 2001, it first proposed to include “the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements”648 in the formal negotiating agenda. Some MEAs have been identified by the CTE as having trade-related implications. These MEAs stipulates provisions that are directed to or impact trade measures when the use of trade measures is necessary for effective implementation of the MEA rules.649 While some treaties are created to protect specific species of endangered animals and plants from reckless transport, others facilitate the joint management of natural resources, such as fish and the ozone layer. For instance, the CITES took effect from 1975, seeking to control global markets for endangered species.650 It imposes specific trade restrictions for import and export of certain species. The Montreal Protocol to the 1985 Vienna Convention on the Protection of the Ozone Layer, implemented in 1989, intends to reduce and eliminate the use of Ozone Depleting

645  Minisha Sinha, An Evaluation of the WTO Committee on Trade and Environment 47 J. World Trade 1285 (2013). 646  As a brief introduction for the origins of international environment law, the 1972 Stockholm Conference is generally recognized as a starting point where the environmental law became to be conceived as a separate body of international law. It was the first international forum to discuss various environmental issues. 113 States met in Stockholm for the United Nations Conference on the Human Environment in June 1972. At the conclusion of the Conference, the Declaration of the United Nations Conference on the Human Environment was adopted, containing 26 principles and an Action Plan, containing 109 recommendations. Malanczuk (1997), at 241; Sinha (2013), at 1286. 647  WTO, Matrix of Trade Measures Pursuant to Selected MEAs 39 (2000); Malanczuk (1997), at 241. 648  WTO Doha Declaration, para. 31(i); see also ibid., paras. 32, 33 and 51. 649  See generally, James Cameron & Jonathan Robinson, The Use of Trade Provisions in International Environmental Agreements and Their Compatibility with the GATT, 2 Y.B. Int’l L Env. L. 3 (1991). 650  Convention on Trade in Endangered Species of Wild Fauna and Flora, 983 U.N.T.S. 243, Mar. 3, 1973; currently 181 parties (Dec. 2015).

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Substances (“ODS”).651 ODS emissions have been a major obstacle to conserving the earth’s protective ozone layer. ODS emissions typically occur as a consequence of manufacturing ODS-containing products, such as air conditioners. According to the Montreal Protocol, imports and exports of controlled substances from or to non-parties must be restricted. The Basel Convention, which entered into force in 1992, regulates various categories of waste covered by the Convention such as toxic, poisonous, explosive, corrosive, flammable, eco-toxic, and infectious materials.652 It was concluded against the backdrop of industrialized countries’ irresponsible shipments of hazardous waste to developing countries and Eastern European states due to the increase in treatment costs. The central objective of the Convention is to encourage the “environmentally sound management” of waste through an integrated life-cycle approach. This involves controlling the generation of waste through storage, transport, recycling, and final disposal. It stipulates prohibitions on imports of hazardous waste from non-parties. The Cartagena Protocol is a protocol to the 1992 Convention on Biological Diversity.653 The main objectives of the Cartagena Protocol are to ensure adequate protection in the transfer, handling and use of living modified organisms (“LMOs”) with respect to conservation and the sustainable use of biological diversity. This Protocol contains a provision on the precautionary principle that is comparable to the risk assessment provisions in the SPS and TBT Agreement under the WTO system. The UN Framework Convention on Global Climate Change (“FCCC”) and more recently, the Kyoto Protocol are also substantially related to examine the trade-environment conflict in the context of emissions trading.654 MEAs such as the 1966 International Convention for the Conservation of Atlantic Tunas (“ICCAT”), the 1980 Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”), and the 1946 International Convention for the Regulation of Whaling have also been highlighted by the WTO to set up provisions with trade-restrictive impacts. 651  Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 U.N.T.S. 29, Sept. 16, 1987 [“The Montreal Protocol”]; Vienna Convention for the Protection of the Ozone Layer, 1513 U.N.T.S. 293, Mar. 22, 1985. 652  Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1673 U.N.T.S. 57, Mar. 22, 1989 [“The Basel Convention”]; currently 183 parties (Dec. 2015). 653  Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 39 ILM 1027, Jan. 29, 2000. 654  Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 U.N.T.S. 148, Dec. 11, 1997 [“The Kyoto Protocol”].

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2.2 Regional and Bilateral Setting With a similar attempt, Article 104(1) of the NAFTA elaborates on its relationship to environmental and conservation agreements. Paragraph 1 of this provision reads: 1. In the event of any inconsistency between this Agreement and the specific trade obligations set out in: (a) the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Washington, March 3, 1973, as amended June 22, 1979, (b) the Montreal Protocol on Substances that Deplete the Ozone Layer, done at Montreal, September 16, 1987, as amended June 29, 1990, (c) the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, done at Basel, March 22, 1989, on its entry into force for Canada, Mexico and the United States, or (d) the agreements set out in Annex 104.1 In a close reading of this section, certain environmental treaties are to take priority in the event of any inconsistency, but this priority is only recognized “provided that where a Party has a choice among equally effective and reasonably available means of complying with such obligations, the Party chooses the alternative that is the least inconsistent with the other provisions of this Agreement,” as clearly expressed in the later part of this provision. The EU-Central America Association Agreement also recognizes the relevance of rules and principles of environmental law for trade regulation.655 Article 287, entitled “Multilateral Environmental Standards and Agreements,” reads:

655   According to Article 352 of the EU-Central America Association Agreement, the Parties to the treaty are the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, referred to as the “Republics of the CA Party” on the one hand, and the European Union or its Member States or the European Union and its Member States, within their respective areas of competence, referred to as the “EU Party” on the other. This Agreement seeks to consolidate political dialogue and enhance economic cooperation between the member States of the EU and the States of the CA Party. It is available at http://www.ustr.gov/sites/default/files/uploads/agreements/cafta/ asset_upload_file16_3941.pdf.

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1. The Parties recognise that international environmental governance and agreements are important elements to address global or regional environmental problems and stress the need to enhance the mutual supportiveness between trade and environment. The Parties commit to consult and cooperate as appropriate on trade-related environmental issues of mutual interest. 2. The Parties reaffirm their commitment to effectively implement in their laws and practice the multilateral environmental agreements to which they are parties including: (a) the Montreal Protocol on Substances that Deplete the Ozone Layer; (b) the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; (c) the Stockholm Convention on Persistent Organic Pollutants; (d) the Convention on International Trade in Endangered Species of Wild Fauna and Flora (hereinafter referred to as “CITES”); (e) the Convention on Biological Diversity; (f) the Cartagena Protocol on Biosafety to the Convention on Biological Diversity; and (g) the Kyoto Protocol to the United Nations Framework Convention on Climate Change. 3. The Parties undertake to ensure that they have ratified by the date of entry into force of this Agreement, the Amendment to Article XXI of CITES, adopted at Gaborone (Botswana), on 30 April 1983. 4. The Parties also undertake, to the extent they have not yet done so, to ratify and effectively implement, at the latest by the date of entry into force of this Agreement, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. In addition, according to Articles 289 and 290, parties to the EU-Central America Association Agreement agree to develop and implement, as appropriate, specific standards and obligations in relation to trade in forestry and fish products. The list of general exceptions in Article XX of the GATT has been adopted by bilateral agreements in trade and investment—particularly subprovision (b), concerning measures necessary to protect human, animal or plant life or health”, and (g), concerning measures relating to the conservation of exhaustible natural resources. While some treaties directly use the terms of Article XX, others partially incorporate the exceptions provisions with some modifications in order to provide regulatory space for parties. GATT Article XX

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(b) and (g) are explicitly addressed by Article 2101 of the NAFTA. In the same way, Article 12 of the Australia-Singapore FTA and Article 1601 of the AustraliaThailand FTA, incorporate these sub-paragraphs by reference. Many of the bilateral treaties concluded by Chile and Mexico incorporate this exception clause through explicit reference, or merely reiterating these provisions.656 An identical trend is found in bilateral treaties involving many Asian countries such as China, Japan, Korea, Malaysia, Philippines, Singapore, and Thailand as well as Hong Kong and Macao; these agreements all incorporate the foregoing sub-paragraphs by reference.657 The same is true in the EC FTAs concluded with Chile, Japan, Jordan, Korea, Macedonia, Mexico, South Africa, and many other countries. The U.S. signed the trade agreement with five Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua) and the Dominican Republic.658 This Agreement, the first free trade agreement between the U.S. and a group of smaller developing economies in 2004, also provides a General Exceptions clause that is substantially similar to the GATT exception. Article 21.1 stipulates: For purposes of Chapters Three through Seven (National Treatment and Market Access for Goods, Rules of Origin and Origin Procedures, Customs Administration and Trade Facilitation, Sanitary and Phytosanitary Measures, and Technical Barriers to Trade), Article XX of the GATT 1994 and its interpretive notes are incorporated into and made part of this Agreement, mutatis mutandis. The Parties understand that the measures referred to in Article XX(b) of the GATT 1994 include environmental measures necessary to protect human, animal, or plant life or health, and that 656  See Article 19.02 Mexico-Chile, Article 19.02 Mexico-Uruguay, Article 168.1 Mexico-Japan, Article 9.16 Mexico-Costa Rica; Article 99 Chile-China, Article 20.02 Chile-Costa Rica, Article 20.01 Chile-Korea. 657  See Article 19.2(2) Japan-Singapore, Article 10 Japan-Malaysia, Article 23 JapanPhilippines, Article 168.1 Mexico-Japan; Article 18 China-Macao, Article 18 China-Hong Kong; Article 99 Chile-China; Article 20.01 Chile-Korea. 658  The agreement entered into force for the United States and El Salvador, Guatemala, Honduras, and Nicaragua during 2006, for the Dominican Republic on March 1, 2007, and for Costa Rica on January 1, 2009. With the addition of Costa Rica, the CAFTA-DR is in force for all seven countries that signed the agreement. This agreement is creating new economic opportunities by eliminating tariffs, opening markets, reducing barriers to services, and promoting transparency. It is facilitating trade and investment among the seven countries and furthering regional integration. The full text of this Agreement is found at http://www.ustr.gov/sites/default/files/uploads/agreements/cafta/asset_upload_ file16_3941.pdf.

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Article XX(g) of the GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources. Some existing BITs and Model BITs link international environmental standards to the rules of the foreign investment regulation. Article 22.1 of the AustraliaU.S. BIT and Article 11.22(2) of New Zealand-Transpacific BIT contain provisions similar to WTO’s exception clauses concerning environmental protection. Article 12 of the U.S. Model BIT,659 entitled “Investment and Environment” is stricter than Article 1114(2) of NAFTA. To be more specific, paragraph 1 of the U.S. Model BIT observes, with respect to protection offered by domestic environmental law, that “each Party shall strive to ensure that it does not waive or otherwise derogate from, . . . such laws in a manner that weakens or reduces the protection afforded in those laws as encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory.” Canada has established a new model Foreign Investment Promotion and Protection Agreement (FIPA), the Canadian equivalent of a BIT, has a similar line of provision.660 Article 11 reads: The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. (emphasis added). The FIPA also recognizes restrictive measures on foreign investment adopted for the environment-related purpose in Article 10. Norway’s Model BIT reflects the trends of addressing environment concerns by the inclusion of exception clause. Article 24 of the Norwegian Model BIT661 contains a “General Exceptions” provision, which is modeled on relevant GATT provision. Interestingly, the Norwegian model has a cultural exception in Article 27,

659  Office of the U.S. Trade Representative, Model Bilateral Investment Treaty (2004). 660  Foreign Investment Protection and Promotion Agreement Model, 2003, Canada (2003). 661  Draft Model Bilateral Investment Treaty, Norway (2007).

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which is “designed to preserve and promote linguistic and cultural diversity, cultural and audiovisual policy.” 3 Labor Standards in International Economic Law and Policy 3.1 Multilateral Setting Various efforts have been made to use labor standards in a way to impact international economic law. Linking labor issues with global trade and foreign investment has been a controversial topic of discussion, both in academia and practice, as well as in domestic and international forums.662 On a separate, but related note, labor conditions have an equally important implication for human rights protection; international labor standards substantively overlap with the standards required by major human rights treaties.663 The principal mandate of the ILO is to ensure labor conditions of all countries to meet certain minimum standards. Part XIII of the 1919 Treaty of Versailles created the ILO under the League of Nations. Since its inception in 1919, the ILO has developed various labor standards. Among 189 Conventions adopted under the auspices of the ILO, the following agreements have been noted as constituting core ILO Conventions: these are the Forced Labor Convention (1930), the Freedom of Association and Protection of the Right to Organise Convention (1948), the Right to Organise and Collective Bargaining Convention (1949), the Equal Remuneration Convention (1951), Abolition 662  Steve Charnovitz, the Influence of International Labor Standards on the World Trading Regime: A Historical Overview, 126 Int’l Labor Rev. 565 (1987); Robert Howse & Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the Word Trade Organization in Rights and Democracy (Hugo Stokke & Arne Tostensen eds., The Millennium ed., 2001); John H. Knox, Separated at Birth: The North American Agreements on Labor and the Environment, 26 Loyola of Los Angeles Int’l & Comp. L. Rev. 359, 377 (2004); Michael J. Trebilcock, Trade Policy and Labour Standards: Objectives, Instruments and Institutions, University of Toronto Law and Economics Research Paper No. 02–01 (Dec. 2011). 663  For instance, the UDHR provides freedom from slavery and free dome of peaceful assembly and association (Articles 20 to 26); ICCPR similarly prohibits slavery and other forms of forced and compulsory labor (Article 8); ICERD prohibits racial discrimination in the enjoyment of the right to free choice of employment and the right to equal wage for equal work (Article 5); CEDAW stipulates that women should enjoy the same employment opportunities as men (Article 11); pursuant to the CRC, states have obligations to protect children from economic exploitation at workplace that is likely to hazardous or to interfere with their education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development (Article 32).

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of Forced Labour Convention (1957), the Discrimination (Employment and Occupation) Convention (1958), the Minimum Age Convention (1973), and the Worst Forms of Child Labour Convention (1999).664 Most importantly, the 1998 ILC Declaration on Fundamental Principles and Rights at Work calls for labor-trade linkage. The Declaration reaffirmed the four core labor standards initially proposed in a U.N. Social Summit in Copenhagen, Denmark in 1995: (1) freedom of association and collective bargaining; (2) the elimination of forced labor; (3) the elimination of child labor; and (4) the elimination of discrimination in respect of employment and occupation. The ILO has adopted various conventions and made policy interventions to address normative implications of labor issues for international economic policymaking. Labor conditions and trade influence each other both in theory as well as in practice. However, the rules and practices of linking labor conditions to trade are hardly found in the WTO framework. There is also a considerable gap between approaches of the WTO and the ILO, towards trade-labor linkage, particularly with respect to protecting certain labor standards. While a majority of WTO Members are the Members of the ILO, WTO rules do not allow trade-restrictive measures on products adopted for the reason that the goods concerned were produced in breach of ILO labor standards. As an exception, pursuant to sub-paragraph (e) of GATT Article XX, trade in products of prison labor may be restricted. Interestingly, Charnovitz finds the labor-related aspects of trade in Article XX (a), in relation to trade-restrictive measures to protect “public morals”.665 Depending on how one perceives the meaning and scope of public morals, sub-paragraph (a) can serve the objective of addressing labor issues in a WTO setting; the goods produced under terrible working environments that severely contravene labor rights and the fundamental dignity of human persons can invoke exception as stated in sub-paragraph (a). Howse argues that Article XX exception can be applicable to some labor rights-related measures when adopted to protect human life or health as enumerated subparagraph (b).666 It is debatable to what extent the general exceptions listed in Article XX justify a labor-based exception to the obligations of WTO Members. 664  Bernard M. Hoekman, Philip English and Aaditya Mattoo, Development, Trade, and the WTO: A Handbook 464 (World Bank Publications, 2002). 665  For instance, arguments in Charnovitz’s article assert that the goods made under the conditions of severe labor rights violations should constitute the breach of public moral within the meaning of the GATT XX(a) exception. Steve Charnovitz, The Moral Exception in Trade Policy, 38 Va J. Int’l L. 689 (1998). 666  Robert Howse, The World Trade Organization and the Protection of Workers’ Rights, 3 J. Small & Emerging Bus. L. 131 (1999).

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In a WTO setting, the first real effort to link the two domains was made during the Ministerial Meeting in Singapore in 1996. The U.S. and the EU proposed to introduce a “social clause”. This would permit Members to impose trade-restrictive measures that are adopted to ensure minimum labor standards. However, this was met with strong opposition on technical and political grounds. Most significantly, the main source of disagreement was the difference in perspectives between the developed North and developing countries as to proper labor standards and their domestic consequences. The Singapore Ministerial Declaration merely renewed Members’ commitment to the observance of internationally recognized core labor standards. The Ministerial Declaration recognized that “the ILO is the competent body to set and deal with these standards.”667 At the 2001 Ministerial Meeting in Doha, WTO Members agreed to launch a new round of multilateral trade negotiations. In particular, some initiatives were made to address labor standards. Yet again, the Doha Ministerial Declaration adopted in 2001 essentially reiterates what was held in the previous Declaration. According to Paragraph 8, Members reaffirmed, [ . . . ] declaration made at the Singapore Ministerial Conference regarding internationally recognized core labour standards. We take note of work under way in the international Labour Organization (ILO) on the social dimension of globalization.668 In this way, the WTO simply confirmed its existing stance that labor standards are best addressed by the ILO. It is clear that the WTO is not prepared to address labor-related aspects of trade effectively. 3.2 Regional and Bilateral Setting A number of regional trading agreements have linked the states’ compliance with domestic labor regulation and international labor standards to trade obligations. The first major link was found in the North American Agreement on Labor Cooperation (“NAALC”). The NAALC, one of the two supplementary agreements to the NAFTA, intends to promote international cooperation in labor issues and improve working environments in the domestic realm. Parties are required to enforce their respective labor laws and standards while promoting eleven labor principles in a long run. 667  WTO, Ministerial Conference of the World Trade Organization, Singapore Ministerial Declaration, adopted Dec. 13, 1996, 36 I.L.M. 218 (1997). 668  WTO Doha Ministerial Declaration (2001), para. 8.

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Part II of the NAALC contains six obligations: Article 2 states that “each party shall ensure that its labor laws and regulations provide for high labor standards consistent with high quality and productivity workplaces, and shall continue to strive to improve those standards in that light.” Article 3 urges more effective enforcement of domestic labor laws “through appropriate government action.” The publication requirement prescribed in Article 6 obliges parties to publish their “laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this agreement” in a prompt manner. Annex 1 of the NAALC specifies the following 11 labor principles, which are: (i) freedom of association and protection of the right to organize; (ii) the right to bargain collectively; (iii) the right to strike; (iv) prohibition of forced labour; (v) labour protection for children and young persons; (vi) minimum employment standards, such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements; (vii) elimination of employment discrimination on the basis of such grounds as race, religion, age, sex, or other grounds as determined by each party’s domestic laws; (viii) equal pay for men and women; (ix) prevention of occupational injuries and illnesses; (x) compensation in cases of occupational injuries and illnesses; and (xi) protection of migrant workers. Notably, under the NAALC, only three of the 11 labor principles (i.e. principles concerning minimum wages, child labor, and occupational safety and health) can trigger trade sanctions as an enforcement method. The U.S.-Jordan FTA, signed in 2000, was the first FTA concluded by the U.S.669 U.S.-Jordan FTA provides specific provision regarding labor issues; Article 6 is similar to the wording of the NAALC, as all parties are required to enforce their domestic labor laws. The relevance of the ILO and core labor standards developed by the ILO is explicitly recognized. Other FTAs concluded by the U.S. with various countries, such as Australia, Bahrain, Chile, CAFTA-DR countries, Singapore, and Morocco, also contain labor provisions. The labor provisions contained in these treaties require compliance with a party’s own labor laws.670 Labor provisions have been attached to a series of trade agreements concluded 669  Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area, U.S.-Jordan Article 6(4)(a), Oct. 24, 2002, 41 I.L.M. 63; as examined earlier, this FTA contains the specific language concerning the protection of the environment as well. 670  DiCaprio (2004), at 14–15.

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by Canada. Its trade agreement with Chile concluded in 1997 contains some concerns for national labor laws in the area of core labor standards, minimum working conditions, and migrate workers’ rights. This agreement also emphasizes the effective enforcement of national labor laws in these areas. However, the ILO instruments were not explicitly mentioned. The 1998 ILO Declaration and other relevant labor conventions are referred in the more recent trade agreements, for examples, with Peru, Colombia and Panama. The EU has included a labor provision in numerous trade agreements to which it is party. The Cotonou Agreement, which was created between the Member States of the EU and the Community of African, Caribbean and Pacific States (“ACP”), consists of 78 countries.671 This Agreement is the successor to the Lomé Convention. The original purpose of the Lomé Convention was to promote cooperation between the EU and the ACP, as well as to grant preferential tariffs to the less developed ACP countries. Article 50 of the Cotonou Agreement, entitled “Trade and Labour Standards”, specifically notes that the parties to the agreement affirm their commitment to internationallyrecognised labor standards, as defined in the relevant ILO Conventions, particularly to four core standards (i.e. liberty of association and the right to collective bargaining, abolition of the worst forms of child labor, abolition of forced labor and non-discrimination in employment). The parties also agree to cooperate on labor matters and to exchange information on questions of regulation, and compliance with legislation. However, labor standards shall not be used for protectionist purposes. Chapter 5 of the CARIFORUM-EC agreement also deals with various “social aspects” of trade. It reiterates the parties’ commitment to comply with the core labor standards as stipulated in the ILO conventions, and explicitly reaffirms their commitments to the 1998 ILO Declaration. Pursuant to Article 191.3, parties “recognise the beneficial role that core labour standards can have on economic efficiency, innovation and productivity, and they highlight the value of greater policy coherence between trade policies, on the one hand, and employment and social policies on the other.” In this regard, the CARIFORUM-EC agreement provides a cooperation and monitoring framework with stakeholder participation and optional consultation of the ILO. Similarly, the EU-Central America Association Agreement provides another example incorporating labor provisions in the context of regional integration. Under the heading of “Trade and Sustainable Development”, several provisions 671  Partnership agreement ACP-EC signed in Cotonou on 23 June 2000 (revised in Luxembourg on Jun. 25, 2005, Luxembourg, Office for Official Publications of the European Communities, Sept. 2007, p. 9.

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on labor standards are contained in Title XIII to the Trade Chapter (Part IV) of the Agreement. In particular, Article 286(1) recognizes the following obligations based on international labor law,672 stating, 1. Recalling the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, the Parties recognise that full and productive employment and decent work for all, which encompass social protection, fundamental principles and rights at work and social dialogue, are key elements of sustainable development for all countries, and therefore a priority objective of international cooperation. In this context, the Parties reaffirm their will to promote the development of macroeconomic policies in a way that is conducive to full and productive employment and decent work for all, including men, women and young people, with full respect for fundamental principles and rights at work under conditions of equity, equality, security and dignity. Here, the parties also affirm their commitment “to respect, promote, and realise in good faith and in accordance with” the four ILO core labor principles that have been repeatedly referred in other regional free trade agreements. In sub-provision (2), they undertake to “effectively implement” the basic ILO Conventions referred in the ILO Declaration of Fundamental Principles and Rights at Work of 1998. These international agreements are: (a) Convention 138 concerning Minimum Age for Admission to Employment; (b) Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour; (c) Convention 105 concerning the Abolition of Forced Labour; (d) Convention 29 concerning Forced or Compulsory Labour; (e) Convention 100 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value; (f) Convention 111 concerning Discrimination in Respect of Employment and Occupation; (g) Convention 87 concerning Freedom of Association and Protection of the Right to Organise; and (h) Convention 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively. Article 285 urges parties to “strive to ensure” that their laws and policies provide for and encourage appropriate but high levels of labor protection and “strive 672  EU-Central American Association Agreement, Article 286: Multilateral Labour Standards and Agreements.

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to improve” these laws and policies.673 According to Article 291, the parties undertake “not to waive or derogate from, or offer to waive or offer to derogate from,” its labor legislation in a manner affecting trade or as an encouragement for the establishment, acquisition, expansion or retention of an investment or an investor in its territory.674 Interestingly, among Latin American countries, Chile has taken notable initiatives to promote inclusion of labor standards in bilateral economic arrangements.675 In 2007, the Chile-Panama FTA adopted side agreements on labor and the environment, containing several soft obligations. Along with these parties’ ILO obligations, the agreement urges the Parties to “strive to ensure” that their domestic laws implement these obligations. It also considers the usage of waivers and derogations of labor and environmental laws, to encourage trade and investments as inappropriate. However, the only concrete obligation in the agreement is to enforce existing labor laws; the other obligations are not mandatory. Although the 2009 Chile-Peru side agreement is basically similar to Chile-Panama one, it also refers to the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Article 37(7) of the Chile-Turkey FTA has a stronger tone, stating that a party “shall not fail to effectively enforce its labor laws, in a manner affecting trade between the Parties.”676 In Asia-Pacific region, some countries have sought to address labor issues in conjunction with trade promotion. In 2001, New Zealand established a framework incorporating labor issues into free trade agreements in order to guide its future negotiations with other countries. New Zealand expressed support for the ILO’s overarching objectives of promoting working environments in the global economy and affirmed the core labor standards in the 1998 ILO Declaration. Pursuant to labor standards included in the side agreement to the

673  EU-Central American Association Agreement, Article 285: Right to Regulate and Levels of Protection. 674  EU-Central American Association Agreement, Article 291: Upholding the Levels of Protection. 675  See for example, Lorand Bartels, Social Issues: Labour, Environment and Human Rights in Bilateral and Regional Trade Agreements: Commentary, Analysis and Case Studies (Bryan Mercurio & Lorand Bartels eds., Cambridge University Press, 2015). 676  Chile-Turkey Free Trade Agreement, signed on Jul. 14, 2009, entry into force Mar. 1, 2011 (available at http://www.sice.oas.org/Trade/CHL_TUR_Final/CHL_TUR_Index_e.asp); Article 37 of the Chile—Turkey FTA generally deals with a range of cooperation issues between two countries in order to expand and enhance the benefits of the Agreement.

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New Zealand-Malaysia FTA,677 the parties are encouraged to “work actively to ensure” that their legislation is “in harmony” with “internationally recognised labour principles and rights” and “to promote public awareness of environmental laws, regulations, policies and practices domestically”. For instance, the New Zealand-Thailand FTA, concluded in 2005, confirms their commitments to the four core labor standards in the 1998 ILO Declaration. It contains similar language, ensuring parties’ labor legislation, regulations, policies and practices to be in harmony with internationally-recognized rights and principles. The China-New Zealand FTA, concluded in 2008, expresses similar commitments to the ILO, and in particular, the 1998 ILO Declaration. In the context of the foreign investment regulation, labor concerns have been raised as a part of broader response to states’ concerns that investment law undermines their sovereign authority to regulate various societal issues. Along these lines, various bilateral agreements such as the 2001 NetherlandsMozambique BIT, the 2002 Netherlands-Namibia BIT, the 2002 Korea-Trinidad and Tobago BIT, the 2003 Finland-Kyrgyzstan BIT, as well as the 2004 Dutch Model BIT and the 2004 and 2012 U.S. Model BITs address labor and social protection issues. For instance, the preamble of the Netherlands-Mozambique BIT recognizes that “the development of economic and business ties should promote internationally accepted labour rights.” The 2012 U.S. Model BIT contains a non-relaxation clause, which aims to promote greater integration between the economic objectives of an investment treaty and the protection of non-investment interests and social concerns. The 2012 Model BIT states that the parties desire “to achieve these objectives in a manner consistent with the protection of health, safety, and the environment, and the promotion of internationally recognized labor rights.” Some FTAs link compliance to international labor standards with investment obligations. For example, the investment chapter of the 2009 Canada-Peru FTA has a provision to this effect. Article 810 reads: Each Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility in their internal policies, such as statements of principle that have been endorsed or are supported by the Parties. These principles address issues such as labour, the environment, human rights, community relations and 677  New Zealand-Malaysia Free Trade Agreement, signed on Oct. 26, 2009, entry into force Aug. 1, 2010; the New Zealand-Malaysia Agreement of Labour Cooperation is available at z/downloads/trade-agreement/malaysia/mnzfta-labour-agreement.pdf.

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anti-corruption. The Parties remind those enterprises of the importance of incorporating such corporate social responsibility standards in their internal policies. The Relationship between Human Rights and International Economic Law and Policy 4.1 The Work of UN Human Rights Agencies and Other Organizations The subsidiary bodies of the ECOSOC such as the Sub-Commission on the Promotion and Protection of Human Rights and the Committee on Economic, Social and Cultural Rights have examined the human rights implication of global trade and foreign investment. A series of Sub-Commission Resolutions have urged UN Member States as well as relevant non-state actors to take prompt actions for effective human rights protection in the context of international economic policy-making. Under the auspices of UN human rights treaty bodies and other specialized agencies, numerous studies have also been conducted in this regard. Few years after the creation of the first multilateral trading system, the SubCommission on Prevention of Discrimination and Protection of Minorities made a broad claim that human rights is a primary objective of trade, investment and finance policy.678 The Sub-Commission emphasizes “the centrality and primacy of human rights obligations” in all areas of governance as well as in the advancement of economic and social development. Subsequent resolutions adopted in the “Trade liberalization and its impact on human rights” of 1999 and “Intellectual property rights and human rights” of 2000 shared a similar understanding.679 These Resolutions declared the necessity of integrating human rights principles in the process of international economic policymaking and further requested the UN High Commissioner for Human Rights to engage in a constructive dialogue with the WTO and its Member States on the human rights dimensions of trade and investment liberalization. 4

678  UN Office of the High Commissioner for Human Rights, Sub-Commission Resolution 1998/12, Human Rights as the primary objective of trade, investment and financial policy, UN Doc E/CN.4/SUB.2/RES/1998/12, Aug. 20, 1998. 679  Respectively, UN Office of the High Commissioner for Human Rights, Sub-Commission Resolution 1999/30, Trade Liberalization and its impact on human rights, UN Doc. E/CN.4/ Sub.2/RES/1999/30, Aug. 26, 1999; UNCHR Sub-Commission on Human Rights Resolution 2000/7, Aug. 17, 2000, UN Doc. E/CN.4/Sub.2/RES/2000/7.

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In the 2001 Resolution of “Liberalization of trade in services and human rights,”680 the Sub-Commission on the Promotion and Protection of Human Rights recognized the human rights implications of liberalization of trade in services, under the framework of the GATS. In its view, the proper delivery of basic services is a primary means of promoting human rights; governments are entitled to pursue legitimate policy objectives “such as to ensure the availability, accessibility, acceptability and quality of basic services”. The Resolution called for other UN specialized agencies such as the WHO and UNESCO to undertake studies with respect to the implementation of GATS on the provision of basic services such as health and education services. It also encouraged relevant agencies to request observer statuts with the Council for Trade in Services of the WTO to facilitate their understanding on the human rights implications of trade liberalization in services. In the same year, the Sub-Commission examined a range of different human rights concerns in the broader context of international economic order. The Resolution of “Globalization and its impact on the full enjoyment of all human rights” again emphasized the human rights obligations of governments participating in international economic policy-making. It then urged all governments to consider these oblgiations properly in the course of their negotiations at the upcoming Ministerial Conference of the WTO. As introduced by the SubCommission in this instrument, the Special Rapporteurs on adequate housing as a component of the right to an adequate standard of living, on the right to food, on the effects of structural adjustment and foreign debt on the full enjoyment of human rights as well as the independent expert on the right to development and other UN special procedures had been collaborated with the UN to address various human rights implications of global trade and foreign investment policy. The relationship between intelletual property and human rights in the context of TRIPS implementation were thoroughly examined by the UN’s human rights agencies as early as 2001.681 In 2002, human rights implications of international economic law continued to be examined by the Sub-Commission on the Promotion and Protection of Human Rights.682 The Sub-Commission expressed its deep concerns as follows. 680  UN Sub-Commission on Human Rights Resolution 2001/4, Liberalization of trade in services, and human rights, UN Doc. E/CN.4/Sub.2/RES/2001/4, Aug. 15, 2001. 681  UN Sub-Commission on Human Rights Resolution 2001/21, Intellectual Property and human rights, UN Doc. E/CN.4/Sub.2/RES/2001/21, Aug. 16, 2001. 682  UN Office of the High Commissioner for Human Rights, Sub-Commission on Human Rights Resolution 2002/11, Human rights, trade and investment, UN Doc. E/CN.4/Sub.2/ RES/2002/11, Aug. 14, 2002.

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[ . . . ] international economic law and human rights law have developed as two parallel and separate regimes, with the risk that human rights principles, instruments and mechanisms will be marginalized as highlighted by the actual or potential human rights implications of World Trade Organization agreements, including the General Agreement on Trade in Services, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the Agreement on Agriculture. Recalling previous resolutions on this issue, the Sub-Commission renewed its request to states and economic institutions, including the WTO, the World Bank and the IMF, to take international human rights obligations and principles fully into account in international economic policy-making. It also requested the High Commissioner for Human Rights to make “a comprehensive submission on human rights, trade and investment” to the Fifth Ministerial Conference of the WTO, which was to be held in Cancun, September 2003. In a series of resolutions between the years of 2002 and 2005, the (later replaced by the Human Rights Council) consistently addressed various human rights implications of trade and investment regulation.683 The Office of the High Commissioner for Human Rights (“OHCHR”) has also investigated the relationship between human rights and international economic policy, arguing that human rights norms should provide a legal framework for addressing the social dimensions of trade liberalization. In 2001, the High Commissioner submitted a report examining the impact of the TRIPS on human rights; this report highlighted the unaffordable price of patented drugs as a critical barrier to public health.684 Impacts of globalization, agricultural trade, as well as liberalization of trade in services on the enjoyment of human rights were examined by the High Commissioner in 2002.685 Against the backdrop of exponential growth of IIAs and ongoing negotiation to develop a multilateral forum for investment regulation at the WTO, the OHCHR gave specific attention to the human rights implications of investment law 683  Respectively, UNCHR Resolution 2002/28, Apr. 22, 2002, UN Doc. E/CN.4/RES/2002/28; Resolution 2003/23, Apr. 22, 2003, UN Doc. E/CN.4/RES/2003/23; Resolution 2004/24, Apr. 16, 2002, UN Doc. E/CN.4/RES/2004/24; Resolution 2005/17, UN Doc. E/CN.4/ RES/2005/17, Apr. 15, 2005. 684  UN ECOSOC, Report of UN High Commissioner for Human Rights, The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, E/CN.4/Sub.2/2001/13, Jun. 27, 2001. 685  See for example, UN ECOSOC, Report of the High Commissioner, Globalization and its Impact on the Full Enjoyment of Human Rights, E/CN.4/2002/54, Jan. 15, 2002; Liberalization of Trade in Services and Human Rights, E/CN.4/Sub.2/2002/9, Jun. 25, 2002.

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and policy.686 While the report acknowledged the effect of investment as a positive force to promote the enjoyment of human rights, it argued that the effect of investment on human rights depends significantly on how investors manage investment, and how host state governments take active measures to guide investment towards national development needs. In this regard, the OHCHR expressed some concerns as follows: Investment liberalization can modify the balance among those variables by strengthening investors’ rights and affecting to an extent the policy choices that Governments have to direct investment. On the one hand, this potentially increases the available resources needed to promote and protect human rights. On the other hand, strengthening investors’ rights alone could skew the balance of rights and obligations in favour of investors’ interests over those of States, individuals and communities.687 In order to ensure an appropriate balance of rights and obligations between states and foreign investors, the report proposed a human rights approach to investment liberalization which can realize states’ responsibilities under international human rights. While at first, UN human rights bodies primarily called for attention to the human rights implications of the trade and foreign investment regulation, they quickly moved forward to make more concrete examinations and suggestions for this issue. At the 2002 request of the Sub-Commission on the Promotion and Protection of Human Rights, the OHCHR presented its special reports before the WTO Ministerial Conference held in September 2003 and sought to assist policy makers who might not be familiar with the international human rights system.688 This document generally illustrated the links between human rights and trade. The OHCHR specifically called for “a rightsbased approach to trade” which is

686  UN ECOSOC, Report of UN High Commissioner for Human Rights, Human Rights, Trade and Investment, E/CN.4/Sub.2/2003/9, Jul. 2, 2003. 687  Ibid., para. 56. 688  OHCHR, Human Rights and Trade, 5th WTO Ministerial Conference, Cancun, Mexico, 2003, available at http://www2.ohchr.org/english/issues/globalization/trade/ docs/5WTOMinisterialCancun.pdf.

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[ . . . ] a conceptual framework for the processes of trade reform that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.689 The OHCHR listed eight issues to exemplify the human rights-related aspects of WTO trade regulation. It explored various links between human rights and trade such as trade and non-discrimination, TRIPS and public health, trade and the right to food in the context of agriculture negotiation, market access and human rights in the agriculture trade sector, human rights assessments in services negotiation, trade and indigenous peoples’ human rights, investment and expropriation, and finally, investors’ obligations with regard to human rights. The OHCHR conducted another mission specifically targeting the WTO in collaboration with other UN human rights agencies and the Special Rapporteur; in 2004, Special Rapporteur Paul Hunt examined various rules and principles of WTO Agreements in the lens of right to health.690 The report proposed a “human rights assessment” of WTO rules and policies as a way to avoid negative impacts of trade regulation on the enjoyment of human rights.691 The assessment criteria should be set out separately for different human rights; in this case, the criteria for examining impacts of trade on right to health are the availability, accessibility and quality of health goods, services and facilities. The OHCHR have long advocated the human rights assessments (HRIAs) of trade agreements.692 It was suggested that such impact assessment should be conducted at the negotiation as well as the implementation stage of the WTO. The principle of non-discrimination was also examined in the context of trade liberalization.693 This analytical study of the High Commissioner compared the principle of non-discrimination as understood in international human rights law and trade law, acknowledging a major difference between 689  Ibid., at 4. 690  UN ECOSOC, Commission on Human Rights, Report of the Special Rapporteur, Paul Hunt, Economic, Social and Cultural Rights: the Right of everyone to the enjoyment of physical and mental health. Mission to the World Trade Organization, E/CN.4/2004/49/Add.1, Mar. 1, 2004. 691  Ibid., paras. 53–56. 692  See for example, UN, Analytical Study of the High Commissioner for Human Rights on the Fundamental Principle of Participation and its Application in the Context of Globalization, Report of the High Commissioner, Commission on Human Rights, E/CN.4/2005/41, para. 50. 693  UN ECOSOC, Report of UN High Commissioner for Human Rights, Analytical Study of the High Commissioner for Human Rights on the Fundamental Principle of Nondiscrimination in the Context of Globalization, E/CN.4/2004/40, Jan. 15, 2004.

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the two: while the human rights principle is intrinsically linked to the principle of equality, trade principle of non-discrimination is primarily directed towards reducing and eliminating trade protectionism and enhancing competitive conditions. The High Commissioner then considered how a human rights-based understanding of equality could guide the application of the nondiscrimination principle in the WTO setting, particularly in the fields of government procurement, agricultural trade and social labeling. First, in the area of government procurement, it was suggested that the WTO general exceptions could guarantee a greater flexibility to trade rules to protect measures aimed at reducing discrimination and promoting opportunities for disadvantaged groups.694 Secondly, the High Commissioner observed that the exceptions to the MFN principle could help reduce inequalities and discrimination in agricultural trade with a particular concern with the small farmers and the rural poor.695 Thirdly, the analytic study examines the compatibility of social labeling with the principle of national treatment.696 Under the leadership of the Commission on Human Rights, scholars, and practitioners in independent capacities were appointed to conduct studies on the growing interaction and conflicts between international human rights and economic regimes. The Human Rights Council, the successor to the Commission on Human Rights has continued this line of wide-ranging research in coordination with other UN organs. With respect to human rights violations committed by transnational corporations, Special Rapporteur El Hadji Guisse argued in his 1997 report that “the States and the international community should combine their efforts so as to contain such activities by the establishment of legal standards capable of achieving that objective.”697 His report highlighted that such violations do not come within the competence of a single state and calls for special attention to this feature. In the context of analyzing effects of the GATS implementation on the right to education, Katarina Tomasevski was appointed as a Special Rapporteur in the period between 1998 and 2004.698 Tomasevski looked into a controversial question of whether 694  Ibid., paras. 11–13. 695  Ibid., paras. 13–15. 696  Ibid., paras. 16–18. 697  The Realization of Economic, Social and Cultural Rights, Final Report on the Question of the Impunity of Perpetrators of Human Rights Violations, prepared by Mr. El Hadji Guisse, Special Rapporteur pursuant to Sub-Commission Resolution 1996/24, E/CN.4/ Sub.2/1997/8, Jun. 27, 1997, para. 131. 698  Katarina Tomasevski, Globalizing What: Education as a Human Right or as a Traded Service?, 12 Indiana J. Global Legal Studies 1 (2005); see for more examination, Antoni Verger, WTO/GATS and the Global Politics of Higher Education 106–108 (Routledge, 2010).

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education is a service exempted from the application of GATS due to its status as public services supplied in the exercise of governmental authority. She contested against incorporating the notions of trade liberalization in the education sector. J. Oloka-Onyango and Deepika Udagama elaborated on the relationship between trade, investment and human rights in a number of reports prepared for submission before the ECOSOC.699 They were appointed as Special Rapporteurs to examine the issue of globalization and its impact on the full enjoyment of all human rights. One primary mandate of Special Rapporteurs was to propose, “ways and means by which the primacy of human rights norms and standards could be better reflected in, and could better inform, international and regional trade, investment and financial policies, agreements and practices.”700 In the preliminary report, they asserted: “[t]he primacy of human rights law over all other regimes of international law is a basic and fundamental principle that should not be departed from.”701 The final report was submitted in 2003.702 In their final work, Special Rapporteurs emphasized that the prominent economic institutions such as the WTO, the World Bank and the IMF should consider the applicability of human rights issues to their operations. Both areas of inter-governmental organizations are encouraged to cooperate at practical levels in order to guide the process of globalization towards full realization of human rights.

699  UN ECOSOC, The Realization of Economic, Social and Cultural Rights. Human Rights as the primary objective of international trade, investment and finance policy and practice. Working Paper submitted in accordance with Sub-Commission resolution 1998/12, Jun. 17, 1999, E/CN.4/Sub.2/1999/11. 700  UN Sub-Commission Resolution 1998/12, Human rights as the primary objective of trade, investment and financial policy, Aug. 20, 1998, UN Doc. E/CN.4/SUB.2/RES/1998/12, para. 4. 701  UN ECOSOC, The Realization of Economic, Social and Cultural Rights, Globalization and its Impact on the Full Enjoyment of Human Rights. Preliminary report submitted by J. Oloka Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8, Jun. 15, 2000, E/CN.4/Sub.2/2000/13, para. 63; see also UN ECOSOC, The Realization of Economic, Social and Cultural Rights, Globalization and its impact on the Full Enjoyment of Human Rights, Progress Report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8 and Commission on Human Rights decision 2000/102, Aug. 2, 2001, E/CN.4/Sub.2/2001/10. 702  UN ECOSOC, Economic, Social and Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human Rights. Final Report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission decision 2002/105, E/CN.4/ Sub.2/2003/14, Jun. 25, 2003.

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In 2005, at the request of the Commission, Secretary-General Kofi Annan appointed John Gerald Ruggie as a Special Representative of the UN SecretaryGeneral on the issue of human rights and transnational corporations, and other business enterprises.703 The Special Representative was given the following mandates: (a) To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights; (b) To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation; (c) To research and clarify the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”; (d) To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises; (e) To compile a compendium of best practices of States and transnational corporations and other business enterprises He was also requested to consult with various stakeholders, including states, the Global Compact, international organizations such as the ILO, the UNCTAD, the UNDP, the OECD, as well as transnational corporations and other business enterprises, and civil society, including employers’ organizations, workers’ organizations, indigenous, and other affected communities and nongovernmental organizations. The Special Representative sought to provide a conceptual and policymaking framework to facilitate the business and human rights debate. In 2008, he presented his findings and recommendations concerning the issue of human rights and transnational corporations and other business enterprises. In his view, the political capacity of some governments is too weak to manage adverse consequences brought by certain economic activities of transnational enterprises. With respect to the foreign investment regulation, he gave a general overview of the problematic situation experienced by some host states:

703  UNCHR Human Rights Resolution 2005/69, E/CN.4/2005/L.10/Add.17, Apr. 20, 2005.

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To attract foreign investment, host States offer protection through bilateral investment treaties and host government agreements. They promise to treat investors fairly, equitably, and without discrimination, and to make no unilateral changes to investment conditions. But investor protections have expanded with little regard to States’ duties to protect, skewing the balance between the two. Consequently, host States can find it difficult to strengthen domestic social and environmental standards, including those related to human rights, without fear of foreign investor challenge, which can take place under binding international arbitration.704 Ruggie found that this imbalance was particularly problematic for developing countries. He pointed to a study conducted jointly with the IFC, showing that “contracts signed with non-OECD countries constrain the host state’s regulatory powers significantly more than those signed with OECD countries.”705 He called for establishing better strategies to balance investor interests with the regulatory concerns of host states to follow their human rights obligations. In the period between 2008 and 2014, the Special Rapporteur on the right to food made a comprehensive examination regarding the current status of the enjoyment of the right to food, in the wake of the food crisis in many developing countries.706 He also undertook several missions to the WTO, assessing its impacts on the realization of the right to food.707 Regarding the impacts of the current multilateral trade regime on the right to food, his 2009 report notes:

704  The Report by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John G. Ruggie, Protect, Respect and Remedy: a Framework for Business and Human Rights, A/HRC/8/5, Apr. 7, 2008, para. 34. 705  Ibid., para. 36. 706  Following his initial report presenting his programme of work, he prepared 10 interim reports on a range of thematic issues, in addition to two special reports on the global food price crisis. His final report was submitted before the Human Rights Council in January 2014. Report of the Special Rapporteur on the right to food, Olivier De Schutter, Final Report: The Transformative potential of the right to food. A/HRC/25/57, Jan. 24, 2014. 707  Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Special Rapporteur on the right to food, Olivier De Shutter, Mission to the World Trade Organization, A/HRC/10/5/Add.2, Feb. 4, 2009; he also conducted the mission to the FAO. Report of the Special Rapporteur on the right to food, Olivier De Schutter, Mission to the Food and Agriculture Organization of the United Nations, A/HRC/22/50/Add.3, Jan. 14, 2013.

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(a) increased dependency on international trade which may lead to loss of export revenues when the prices of export commodities go down, threats to local producers when low-priced imports arrive on the domestic markets, against which these producers are unable to compete, and balance of payments problems for the net foodimporting countries when the prices of food commodities go up; (b) potential abuses of market power in increasingly concentrated global food supply chains and further dualization of the domestic farming sector; and (c) potential impacts on the environment and on human health and nutrition, impacts that are usually ignored in international trade discussions, despite their close relationship to the right to adequate food. His Activity Report submitted in 2011 deals with the development of the agenda for global food security governance in the WTO context.708 This report proposes specific recommendations for WTO Members as well as the WTO Secretariat. It urges its members to ensure their undertakings under the WTO framework are compatible with their obligation to respect, protect and fulfill the right to food, based on the transparent, independent and participatory human rights impact assessments. Moreover, according to the report, Members are also encouraged to align their positions in trade negotiations pursuant to domestic strategies for the implementation of the right to food. Regarding the task of the WTO Secretariat, the Activity Report requests deepening the existing constructive dialogue with the Office of the United Nations High Commissioner for Human Rights, as well as encouraging WTO members to conduct human rights impact assessments prior to the conclusion of trade agreements, or to accepting new schedules of commitments. In his final report of 2014, while examining the current status of the WTO discussion regarding the right to food, the Special Rapporteur points out that the ninth Ministerial Conference of WTO, held in Bali, Indonesia, in December 2013, failed to place food security above trade concerns.709 He again raises the need to improve coherence of global governance for the realization of the right to food. This final report also encourages national congresses to hold regular 708  Activity Report by the UN Special Rapporteur on the Right to Food, Olivier de Schutter, The World Trade Organization and the Post-Global Food Crisis Agenda, Activity Report, Nov. 2011. 709  As highlighted in the Report of the Special Rapporteur on the right to food, Olivier De Schutter, Final Report: The Transformative potential of the right to food, A/HRC/25/57, Jan. 24, 2014, para. 48.

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hearings about the positions adopted by governments in trade negotiations, and ensure that their undertakings under the WTO framework are fully compatible with the right to food.710 UN human rights treaty bodies have examined the human rights implications of global trade and foreign investment regulation. The work of UN Committee on Economic, Social and Cultural Rights (“CESCR”) provides a useful illustration. The CESCR is a body of independent experts provides institutional oversight to ensure effective implementation of rights and obligations contained in the ICESCR. As a start, in 1999, the CESCR presented a statement directed towards the third Ministerial Conference of the WTO held in Seattle; from its observation, international economic law and policies affect the ability of states to fulfill their treaty obligations, particularly with respect to ESC rights.711 The CESCR urged the WTO Members “to undertake a review of the full range of international trade and investment policies and rules in order to ensure that these are consistent with existing treaties, legislation and policies designed to protect and promote all human rights.”712 Arguing for the central and fundamental nature of human rights obligations, the CESCR boldly stated, At the World Conference on Human Rights in 1993 in Vienna, 171 States declared that the promotion and protection of human rights is the first responsibility of governments.713 In its view, even under the realm of international regimes of trade, finance, and investment, states are in no way exempt from human rights obligations. The CESCR has also adopted General Comments to clarify the meaning of relevant provisions and their application dynamics in practice. Some of the General Comments explicitly deal with various aspects of international economic regulation in the context of human rights protection. General Comment No. 14 concerning the right to the highest attainable standard of health contains an analysis of how the GATS and TRIPS would affect the realization of such rights. General Comment No. 15 concerning the right to water also deals with the implication of trade in services for the individual enjoyment of the right to health. While urging states parties to guarantee physical access to water 710  Ibid., at 27. 711  UN CESCR, Statement of the UN Committee on Economic, Social, and Cultural Rights to the Third Ministerial Conference of the World Trade Organization (Seattle, Nov. 30 to Dec. 3 1999) E/C.12/1999/9, Nov. 26, 1999. 712  Ibid., para. 2. 713  Ibid., para. 6.

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facilities and services, the CESCR notes that domestic legislation, strategies and policies need to be adjusted for effective implementation of treaty obligations to ensure that everyone can enjoy the right to water.714 Interestingly, the General Comment No. 15 also sees the possibility of conflict with the terms of the GATS and requests the WTO to cooperate with its Members, and other relevant organizations for the effective implementation of the right to water.715 The CESCR observes that that the core human rights obligations should be accorded the highest place in the international constitutional order and emphasize that almost every nation is now a party to at least one major human rights treaty imposing significant legal obligations to abide by internationally recognized human rights standards. It remains highly controversial, however, whether the legal institutions we have inherited have sufficient capacity to carry out such a task at the present time. The adjudication stage might not be the best forum to achieve the complex goal of resolving multi-layered tensions between different legal regimes, institutions and the substantive values they are committed to. The CESCR has requested states parties to undertake assessment of the trade negotiations and agreement on the enjoyment of human rights. It has expressed its view in Concluding Observations in consideration of reports submitted by state parties under Articles 16 and 17 of the ICESCR. Pursuant to the Concluding Observation regarding Ecuador, The Committee strongly urges the State party to conduct an assessment of the effect of international trade rules on the right to health for all and to make extensive use of the flexibility clauses permitted in the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement) in order to ensure access to generic medicine and more broadly the enjoyment of the right to health for everyone in Ecuador.716 The CESCR also observes that the state’s obligations under the ICESCR “should be taken into account in all aspects of its negotiations with the international financial institutions and other regional trade agreements” to ensure ESC

714  CESCR, General Comments No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), para. 45. 715  Ibid., para. 60. 716  Committee on Economic Social and Cultural Rights, Concluding Observations regarding Ecuador, E/C.12/1/Add.100, Jul. 7, 2004, para. 55.

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rights, particularly for the most disadvantaged and marginalized groups.717 In another occasion, the CESCR recommended the government of Morocco, [ . . . ] take into account, in negotiations and bilateral agreements, all the obligations incumbent upon it under the Covenant, so as not to impinge upon economic, social and cultural rights. It recommends that the State party evaluate the impact of the free-trade agreements that entered into force in 2006 on the economic, social and cultural rights of the people of Morocco, especially the most vulnerable sectors of the population.718 Costa Rica received a similar recommendation from the CESCR. It reads: The Committee recommends that the State party undertake the measures necessary to assess the potential adverse impact of its commitments under CAFTA on economic, social and cultural rights and to ensure that Covenant rights, in particular labour rights, access to health, social security and generic medicines and the intellectual property regimes are not adversely affected.719 Other UN treaties bodies such as the Committee on the Elimination of Discrimination Against Women “CEDAW” and the Committee on the Rights of the Child “CRC” also request human rights impact assessments of trade agreements in their Concluding Observations on a range of states which have reported to these Committee. For example, the CRC expressed its concerns about the situation of Children in El Salvador in the context of the TRIPS implementation and the access to affordable medicines. It reads: The Committee recommends the State party to systematically consider the best interests of the child when negotiating trade-related intellectual property rights and implementing them into national law. In particular, the State party should conduct an assessment of the impact of international intellectual property rights agreements on the accessibility of

717  Ibid., para. 56. 718  Committee on Economic, Social and Cultural Rights Concluding Observations regarding Morocco, E/C.12/MAR/CO/3, Sept. 4, 2006, para. 56. 719  Committee on Economic, Social and Cultural Rights Concluding Observations for Costa Rica, E/C.12/CRI/CO/4, Jan. 4, 2008, para. 48.

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affordable generic medicines, with a view to ensuring children’s enjoyment of the highest attainable standard of health.720 The CEDAW strongly called for human rights impact assessment of trade agreements concerning the economic well-being of Colombian women. Noting the persistently high levels of poverty among women living in rural area and the lack of opportunities for education for them, the Concluding Observations states: The Committee is concerned about the increase in the number of women working in the informal sector, which offers fewer rights, benefits and opportunities for advancement. . . . The Committee encourages the State party to strengthen its efforts to enhance women’s access to employment in the formal sector, including through increased opportunities for education and training. The Committee encourages the State party to analyse the impacts of maquiladora and seasonal agricultural work on women’s economic situation. It also suggests that the State party study the impact of free trade agreements on the socio-economic conditions of women and consider adopting compensatory measures that take women’s human rights into consideration.721 In another occasion, the CEDAW expressed a similar concern for the situation of women in the Philippines, requesting the state to “evaluate the impact of the free trade agreements on the socio-economic conditions of women,” as well as “to address the high unemployment rate of women by creating new sustainable employment opportunities for those affected.”722 The WHO has tackled public health dimension of trade regulation in the areas of food safety (with respect to food born diseases and the genetically modified products), tobacco control, access to drugs and vaccines (in the context of TRIPS implementation), public health services (in the GATS framework), as well as issues of food security and nutrition. In 2006, the WHO Assembly 720  Committee on the Rights of the Child, Concluding Observations regarding El Salvador, CRC/C/15/ Add.232, Jun. 30, 2004, para. 48. 721   Committee on the Elimination of Discrimination Against Women, Concluding Observations regarding Colombia, CEDAW/C/COL/CO/6, Feb. 2, 2007, paras. 28–29. 722   Committee on the Elimination of Discrimination Against Women, Concluding Observations regarding Philippines, CEDAW/C/PHI/CO/6, October 25, 2006, para. 26; see also Concluding Observations regarding Guatemala, CEDAW/C/GUA/CO/6, Jun. 2, 2006, para. 32.

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adopted a resolution calling for a greater coherence and coordination in the development of trade and health policies.723 The 2006 Resolution recognized the “demand for information on the possible implications of international trade and trade agreements for health and health policy at national, regional and global levels.” The WHO has also worked with the WTO in assessing the linkages between trade and health policies.724 In some IEL disputes, the WHO intervened to bring in its expertise, particularly to examine health effects of tobacco trading in certain countries.725 4.2 The Field of International Economic Law and Policy 4.2.1 Multilateral Setting The relationship between WTO Agreement and non-trade treaties has been frequently addressed by WTO Members as well as relevant WTO committees and working groups with special mandates. Nevertheless, it is a widely accepted proposition that the WTO law and policy have been silent with respect to human rights issues as a general matter.726 In comparison with the environmental regulation, human rights concerns have been raised in a highly

723  59th World Health Assembly, WHA 59.26, International Trade and Health, May 27, 2006 (available at http://apps.who.int/gb/ebwha/pdf_files/WHA59-REC1/e/Resolutions-en.pdf). 724  For example, A Joint Study by the WHO and the WTO Secretariat, WTO Agreements & Public Health (2002); Howse noted that the 2002 joint study is a “landmark event.” However, in his view, this study misinterpreted the regulatory autonomy under current WTO regime, and offered an inaccurate understanding on many health-related rules of WTO Agreements. See generally, Robert Howse, The WHO/WTO Study on Trade and Public Health: A Critical Assessment, 24 Risk Analysis 501 (2004). 725  See Benn Mcgrady Trade and Public Health: The who, Tobacco, Alcohol and Diet 113–115 (Cambridge University Press, 2011). 726  Regarding this insufficient discussion on the relationship between human rights and trade by the WTO, see the discussion on the proposed ILA Declaration on Trade and Human Rights in ILA, Report of the International Trade Law Committee, Toronto Conference (2006), 18–21; Ernst-Ulrich Petersmann, The WTO and Regional Trade Agreements as Competing Fora for Constitutional Reforms: Trade and Human Rights in Regional Trade Agreements and the WTO Legal System (Lorand Bartels & Federico Ortino eds., Oxford University Press, 2006); but see, an open letter written by then WTO Director-General, Pascal Lamy. Here, he responded to the Activity report of the World Trade Organization and the Post-Global Food Crisis Agenda of November 2011 submitted by Olivier de Schutter, the Special Rapporteur to the HRC (available at http://www.wto.org/english/ news_e/news11_e/agcom_14dec11_e.htm#letter). This analytic study criticizes the WTO for defending an Outdated Vision of Food Security.

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limited manner.727 Broadly, under the current WTO system, three different legislative and administrative mechanisms can potentially channel human rights concerns in IEL policymaking. 4.2.1.1

WTO Exception Clauses

WTO exception clauses can work as a mechanism for addressing human rights concerns in a multilateral trading system.728 Largely inherited from the GATT Article XX (General Exceptions), exceptions provisions in the WTO Agreements intend to preserve states’ right to regulate, setting a counter balance against trade liberalization. In accordance with Article XX of the GATT, some human rights-related concerns are prescribed to justify the derogation of trade obligations under certain circumstances. WTO Members are allowed to adopt trade-restrictive measures when necessary, to “protect human, animal, or plant life or health” pursuant to sub-provision (b), and imports “relating to the products of prison labour” pursuant to sub-provision (e). Regarding sub-provision (e), Stirling asserts that the ban on trade in products of prison labour could be used to prohibit trade in goods made from slavery and trafficked workers.729 Depending on how one perceives the meaning and scope of “public morals”, sub-provision (a) can also cover various human rights-related measures.730 For instance, Charnovitz argues that public morality of Article XX(a) would cover issues such as “slavery, weapons, narcotics, liquor, pornography, compulsory labor and animal welfare.”731 Similarly, Howse also takes an expansive interpretation of this sub-provision, arguing that the evolution of human rights has formed “a core element of public morality”. In his view, the concept of public morals should extend to include “disapprobation of labor practices that violate universal human rights.”732 727  Gabrielle Marceau, Conflicts of Norms and Conflicts of Jurisdiction—The Relationship between the WTO Agreement and MEAs and Other Treaties, 35 J. World Trade 1081, 1105 (2001). 728  Sol Picciotto, Humanizing Global Economic Governance in Linking Global Trade and Human Rights 30 (Daniel Drache & Lesley A. Jacobs eds., Cambridge University Press, 2014). 729  Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 Am. U. Int’l L. Rev. 1, 35–39 (1996). 730  Nevertheless, this provision is only used to restrict the imports of immoral and pornographic materials. 731  Charnovitz (1998), at 729–730. 732  Howse (1999).

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In a brief summary, the following provisions can be pointers for introducing the potential relevance of human rights-related concerns into trade policy-making. – Public order and Public morals (GATT Article XX(a), GATS Article XIV(a), TRIPS Article 27.2) – Public Health (GATT Article XX(b), GATS Article XIV(b), SPS Article 2.2, TBT Article 2.2, TRIPS Articles 27.2 and 27.3) –  Core labour standards—the prohibition of prison labour (GATT Article XX(e)) – Consumer protection (e.g. prevention of deceptive practices) (GATT Article XX (d), GATS Article XIV(c), TBT Article 2.2) – Universal access and use of public telecommunications transport networks and services (Annex on Telecommunications, Section 5(a))733 – Data privacy (Annex on Telecommunications Section 5(d))734 – Prudential measures (Annex on Financial Services, Section 2(a))735 Within the scope and meaning of the foregoing provisions, Members may take trade-restrictive measures to achieve legitimate non-trade objectives. However, such trade-restrictive policies should not be adopted or applied with an intention to create unnecessary obstacles to trade; the measures should not be more trade-restrictive than “necessary” to fulfil non-trade objectives.

733  Annex on Telecommunications, Section 5(a): Each Member shall ensure that any service supplier of any other Member is accorded access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule. This obligation shall be applied, inter alia, through paragraphs (b) through (f). 734  Annex on Telecommunications, Section 5(d): Notwithstanding the preceding paragraph, a Member may take such measures as are necessary to ensure the security and confidentiality of messages, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services. 735  Annex on Financial Services, Section 2(a): Notwithstanding any other provisions of the Agreement, a Member shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the Member’s commitments or obligations under the Agreement.

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4.2.1.2

WTO Waivers

(i)

Kimberley Waiver

The direct invocation of human rights was made in the form of WTO Waiver concerning two situations.736 One was the decision adopted by the General Council in May 2003, on the Waiver concerning the Kimberley Process Certification Scheme for Rough Diamonds (“KPCS”).737 The other was the decision of the General Council in August 2003, on the implementation of Paragraph 6 of the “Doha Declaration on the TRIPs Agreement and Public Health”—the TRIPS Waiver.738 Pursuant to Article IX(3) of the Marrakesh Agreement, a WTO obligation may be waived “in exceptional circumstance” if approved by three quarters of WTO Members, subject to a transition period or a period for staged implementation under footnote 4 to Article IX(3). The Ministerial Conference is empowered to adopt any waiver decisions that waive certain treaty obligations of the WTO Agreement or any other multilateral trade agreements, such as the GATT (Annex 1A), the GATS (Annex 1B), TRIPS (Annex 1C), DSU (Annex 2), and the Trade Policy Review Mechanism (Annex 3). Waivers are temporary exceptions to WTO rules. In practice, most waiver decisions are adopted by the General Council which conducts the functions of the Ministerial Conference between its meetings as in Article IV(2). The Kimberley waiver opened up a new possibility for the WTO in addressing human rights interface of the trade. It was adopted against the backdrop of the potential conflict between the trade-restrictive aspects of the KPCS and existing WTO rules.739 The KPCS seeks to suppress the trade of so-called “conflict diamonds” defined as “rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments.”740 In 1998, as well as in 2000, before the adoption of the KPCS, the UN Security Council 736  See generally, Sarah Cleveland, Human Rights Sanctions and International Trade: A Theory of Compatibility, 5 J. Int’l Econ. L. 133 (2002). 737  WTO, General Council Decision, Waiver Concerning Kimberley Process Certification Scheme for Rough Diamonds, WT/L/518, May 15, 2003 [“WTO General Council Decision, Kimberley Waiver (2003)”]. 738  WTO, General Council Decision, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540, Aug. 30, 2003 [“WTO General Council Decision, TRIPS waiver (2003)”]. 739  See generally, Joost Pauwelyn, WTO Compassion or Superiority Complex? What to Make of The WTO Waiver for Conflict Diamonds, 24 Mich. J. Int’l L. 1177, 1184–1191 (2004). 740  KPCS, Section I; see generally, UN GA Resolution 55/56, Dec. 1, 2000 (on the role of diamonds in fuelling armed conflicts in relevant regions).

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placed embargoes on the importation of diamonds from Angola741 and Sierra Leone,742 pursuant to its authority set forth by Chapter VII. According to the UN, conflict diamonds “originate from areas controlled by forces or factions opposed to legitimate and internationally recognized governments, and are used to fund military action in opposition to those governments or in contravention of the decisions of the Security Council.” With growing attention to this matter not only in the UN setting, but also in civil society, the KPCS was adopted by the Interlaken Declaration of November 5, 2002.743 While it was not a binding international treaty, participating countries adopted domestic legislation to implement requirements of the KPCS. KPCS requires consumers and producers to ensure that they do not trade diamonds that would directly or indirectly finance wars in Sierra Leone or the Democratic Republic of Congo. On the other hand, this scheme potentially conflicts with a number of provisions contained in the WTO Agreement, such as GATT Article I(1) on the MFN obligation, Article XIII(1) regarding non-discriminatory quantitative restrictions, and Article XI(1) concerning the prohibition of quantitative restrictions. At the Members’ request for waiver,744 formal and informal consultations were undertaken. Finally, the General Council adopted the waiver which suspends Articles I(1), XI(1) and XIII(1) of the GATT as of January 1, 2003, and allows derogations of obligations under these provisions in the particular context of conflict diamonds and the KPCS scheme. In the waiver decision, it was recognized: [. . .] the extraordinary humanitarian nature of this issue and the devastating impact of conflicts fuelled by trade in conflict diamonds on the peace, safety and security of people in affected countries and the systematic and gross human rights violations that have been perpetrated in such conflicts.745 This waiver was renewed in 2006 and extended until 2012. In this way, the waiver decision coordinates KPCS with the rules of the WTO Agreement, resolving potential conflicts in favor of KPCS. In the words of Pierre Pettigrew, 741  UN Security Council Resolution 1173 (1998). 742  UN Security Council Resolution 1306 (2000). 743  Interlaken Declaration of 5 November 2002 on the Kimberley Process Certification Scheme for Rough Diamonds [“Interlaken Declaration”]. 744  Communications from Canada, Japan, and Sierra Leone, Kimberley Certification Scheme for Rough Diamonds—Request for a WTO Waiver, Nov. 11, 2002, G/C/W/431 (Nov. 12, 2002). 745  WTO General Council Decision, Kimberley Waiver (2003), Preamble.

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the Trade Minister of Canada, which was also one of the countries that initially requested the waiver, “this decision clearly shows that the WTO can be flexible when it comes to human security and development.”746 (ii)

TRIPS Waiver

Another WTO waiver directly invoking human rights issues is the TRIPS waiver. The WTO has been a key actor in the debate over patent protection and access to essential medicines. TRIPS Agreement is the most comprehensive multilateral trade instrument that provides international standards for the protection and enforcement of intellectual property rights. The terms of intellectual property protection offered by the TRIPS often interfere with the enjoyment of right to health and the right to access to medicine. Situations of normative conflict between the two are highlighted in the reality of different levels of development achieved by WTO Members. The overwhelming human rights concerns in the context of TRIPS implementation have long been associated with the inaccessibility to medicines due to high prices charged by pharmaceutical companies for their patented products. These concerns were aggravated by the HIV/AIDS epidemic which severely affects developing countries such as Brazil, India, South Africa and Thailand.747 As Sykes points out as follow: A United Nations study reports, for example, that 150Mg of the HIV drug flucanozole costs $55(U.S.) in India, where the drug does not enjoy patent protection, as compared to $697 in the Philippines, $703 in Indonesia and $817 in the Philippines, where the drug is patented.748 As is widely known, there has been significant tension between the promotion of public health (by ensuring access to essential medicines at affordable prices) and the protection of intellectual property rights (the rights to patents in particular). Against this backdrop, the meaning and scope of TRIPS 746   Department of Foreign Affairs, Trade and Development of Canada, Pettigrew Welcomes WTO Waiver for Kimberley Process Certification Scheme, May 22, 2003); this Press Release is available at http://w01.international.gc.ca/MinPub/Publication .asp?publication_id=380114&Language=E. 747  Arvind Subramanian, The AIDS Crisis, Differential Pricing of Drugs, the TRIPS Agreement, 4 J. World Intellectual Property 323 (2001). 748  Sykes (2002) at 47 (explaining on the basis of UNCHR, Report of the High Commissioner, The Impact of the Agreement on Trade-Related Aspects of Intellectual property Rights on Human Rights, para. 44, E/CN.4/Sub.2/2001/13, Jun. 2001).

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Articles 30 and 31 were heavily contested. According to Article 31, WTO Members are authorized “other use” of the subject matter of a patent without the patent holder’s consent. To this end, Article 31 stipulates a compulsory licensing scheme, setting out conditions affecting the issuance of compulsory licenses. Under certain conditions prescribed in the provision, WTO Members may grant a compulsory license with regards to pharmaceutical companies within its jurisdiction to manufacture or import patented pharmaceutical products. Questions arise as to what extent WTO Members may produce generic drugs and export these medicines without the permission of the patent holding companies. Under the original compulsory licensing scheme, the controversy over the adequate standards of intellectual property protection occasionally escalated to WTO lawsuits as in the case between the U.S. and South Africa in 2001. At the request of global pharmaceutical companies incorporated in the U.S., the U.S. objected to the South African Medicines Act, giving the South African Health Minister permission to issue compulsory licenses. In that same year, the issue of compulsory licensing was addressed in another WTO lawsuit initiated by the U.S. against Brazil, concerning Article 68 of the Brazilian Industrial Property Law, which permitted compulsory licensing where there is a lack of local manufacturing of the patented product. While these cases were eventually dropped, they generated significant attention to the effective use of compulsory licensing. A group of developing countries subsequently raised their voices in an effort to redefine the scope of patent protection under the existing TRIPS framework with respect to the restrictions on access to essential, lifesaving drugs.749 Outside of the multilateral trading system, the impact of TRIPS implementation on the right to health was extensively discussed in the settings of WIPO, the Office of the U.N. High Commission for Human Rights, UN-based human rights agencies, the WHO and its Assembly, and the UN General Assembly in Special Session.750 In their views, the original scheme of exceptions to TRIPS rules were highly limited as compared to the “exclusive rights” of the patent holders to control exports and imports of their patented products.

749  On behalf of the delegations of Bolivia, Brazil, Cuba, China, Dominican Republic, Ecuador, India, Indonesia, Pakistan, Peru, Sri Lanka, Thailand, and Venezuela, Brazil submitted communications on 21 June 2002, WTO Do. IP/C/W/355 (Jun. 24, 2002). 750  On the drafting history of the adoption of the Doha Declaration on TRIPS and Public Health, see Haochen Sun, The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health, 15 Eur. J. Int’l L. 123, 127–132 (2004).

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Against this backdrop, WTO Members began to work towards a formal amendment of existing TRIPS rules that would facilitate compulsory licensing of certain pharmaceutical products for the benefits of LDC members of the WTO. The Doha Declaration on the TRIPS Agreement and Public Health was adopted at the Ministerial Conference on November 14, 2001.751 The Doha Declaration first affirmed that TRIPS Agreement can and should be interpreted and implemented in an manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.752 It also recognized that the flexibility inherent in the TRIPS allows each member “the right to grant compulsory licences and the freedom to determine the grounds on which such licences are granted.” It was proclaimed that every WTO Member has the “right to determine what constitutes a national emergency or other circumstances of extreme urgency,” specifically mentioning “those relating to HIV/AIDS, tuberculosis, malaria and other epidemics [ . . . ].” Paragraph 6 of the Doha Declaration then noted: We recognize that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licences under the TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002.

751  WTO Ministerial Conference, Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, Nov. 20, 2001 [“The Doha Declaration (2001)”]; one commentator examined the legal significant of the Doha Declaration as follows,  “It should be noted that ministerial declarations within the WTO are not legally binding in the dispute resolution process, and in the event of a dispute the language of the treaties as approved by national governments would prevail over any contradictory declaration by the ministers. But the Doha Declaration is primarily interpretive of imprecise obligations in TRIPS, and does not appear to contradict any textual provision. As such, it is likely to be persuasive authority in the interpretation of TRIPS in the event of a dispute.  The Doha Declaration can affect the decisions of the Panel and the Appellate Body in light of Article 31(2) of the VCLT, requiring interpreters to consider any agreement or instrument relations to the treaty made between all the parties, in connection with the conclusion of the treaty. The Doha Declaration has implications for interpreting relevant provisions of the WTO Agreement. Sykes (2002), at 54.” 752  The Doha Declaration (2001), para. 4.

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WTO Members recognized that developing countries could face obstacles in making effective use of compulsory licensing under the TRIPS. In order to establish a system intended to overcome these difficulties, the “Waiver Decision on the Implementation of Paragraph 6 of the Doha Declaration” was adopted on August 30, 2003.753 Giving substantive effects to the Doha Declaration, this 2003 decision grants a legitimate waiver of relevant rights and obligations under the TRIPS. It was designed to waive the requirement set forth by Article 31(f) of the TRIPS, that a compulsory licence shall authorize use of a patent predominately for the supply of the domestic market, as well as the obligation under Article 31(h), to pay adequate remuneration to the rights holder when a compulsory license is issued under certain conditions. During the 2005 Hong Kong Ministerial meeting, the Council for the TRIPS Agreement submitted an amendment proposal, entitled, “Implementation of Paragraph 11 of the General Council Decision of 30 August 2003 on the Implementation of Paragraph 6 of the Doha Declaration on TRIPS and Public Health.”754 On December 8, 2005, Subsequent to this proposal, the General Council made the Decision on the Amendment of TRIPS.755 Article 31 bis has been added as a result of amendment. The 2005 Waiver decision reaffirms WTO Members’ commitments to allow the export of the essential medicines to countries without sufficient manufacturing capacity, as well as to make constructive efforts to promote right to health. While the Kimberley waiver is more concerned with the coordination between the application of WTO rules and other regimes involving particular situation of grave human rights violations, the TRIPS waiver addresses the competing interests between trade and human rights in a more explicit way. The TRIPS waiver is a significant step forward, in the sense that this waiver decision allows the suspension of the WTO obligation under a more abstract circumstance, compared to the Kimberley waiver that is applicable only in a highly specific situation, and only involving specific countries (i.e. Angola and Sierra Leone). In practice, states need to establish implementing domestic legislation to give effects to a new scheme of compulsory licensing in accordance with the waiver. Nevertheless, not many Members show enthusiasm for implementing TRIPS 753  WTO, General Council Decision, TRIPS waiver (2003). 754  WTO, Implementation of Paragraph 11 of the General Council Decision of 30 August 2003 on the Implementation of Paragraph 6 of the Doha Declaration on TRIPS and Public Doc IP/C/41 (Dec. 6, 2005). 755  WTO, General Council Decision, Amendment of the TRIPS Agreement, WTO Doc WT/L/641 (Dec. 8, 2005).

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waiver. Canada’s Access to Medicines Regime (“CAMR”) was the first domestic legislation implementing the TRIPS waiver.756 The CAMR provides a system for pharmaceutical manufacturers to export generic drugs to LDCs and developing countries through compulsory licensing, in accordance with the TRIPS waiver scheme. Under the new arrangement, in 2008, the first application was made for the treatment of HIV/AIDS in Rwanda by Apotex, the Canadian generic pharmaceutical manufacturer. Rwanda has been the only country to use 2003 Waiver Decision of the General Council to import inexpensive generic drugs from Canada. The WHO has urged Members to take necessary regulatory steps to make the new compulsory licensing system available for wider populations.757 4.2.1.3

Human Rights Impact Assessments

A more administrative type of mechanism to accommodate human rights concerns in WTO decision-making can be developed in the Trade Policy Review Mechanism (“TPRM”) and the WTO Council for Trade in Services. By conducting human rights impact assessments, both procedures can contribute to creating criteria and principles which address the intersection of global trade policy and human rights.758 Human rights impact assessment can be made ex ante (assessment before or during the negotiation of new WTO rule or policy) and ex post (assessment of existing WTO rule or current policy implementation). As explored, UN Human Rights organs and human right treaty bodies have highlighted that international economic institutions are encouraged to conduct a comprehensive human rights assessment of trade and investment regulations. Human rights assessments would help to enhance understanding of the real and potential impacts of international economic agreements on human rights. These assessments would also guide decision-makers to produce more informed trade policy-making. First, the TPRM can provide an institutionalized platform for assessing human rights implications of trade regulation. WTO Members are required to submit their domestic trade policies, and based on these reports, the TPRM 756  See generally, Holger P. Hestermeyer, Canadian-made Drugs for Rwanda: The First Application of the WTO Waiver on Patents and Medicines, 11 Am. Soc’y Int’l L. Insights 28 (2007). 757  WHO Commission on Intellectual Property Rights, Innovation and Public Health (2007), para. 139. 758  See generally, James Harrison & Alessa Goller, Trade and Human Rights: What Does ‘Impact Assessment’ Have to Offer? 8 Human Rgt. L. Rev. 587 (2008); Gillian MacNaughton & Lisa Forman, Human Rights and Health Impact Assessment of Trade-Related Intellectual Property Rights: A Comparative Study of Experiences in Thailand and Peru, 14 J. Human Rgt. 124 (2015).

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examines the “impact of a Member’s trade policies and practices on the multilateral trading system.”759 Nevertheless, the review mechanism does not serve “as a basis for the enforcement of specific obligations under the agreements or for dispute settlement procedures or to impose new policy commitments on Members.”760 It has been suggested that the mandate of the TPRM can be broadened to conduct an impact assessment analysis on the issue of human rights-trade, considering both the positive and negative effects that the WTO system may have on human rights law and policies. With regards to the basis for mainstreaming human rights concerns, particularly the right to development into WTO practices, Howse stated: The references to “raising standards of living” and “sustainable development”, as well as “full employment” suggest that the mandate of TPRM, while not explicitly stated in human rights terms, would include analyses of the affect of trade rules and policies on human capacities, the protection and enhancement of which is a fundamental dimension of human rights as related to development. Similarly, the focus on transparency would apparently suggest the participation of a wide range of domestic and international actors in the process of assessing the effects of trade policies under TPRM.761 In his view, the concept of the right to development links development to the human rights framework; therefore, introducing the right to development into WTO practice ultimately “evokes the possibility of the reorientation of the WTO project such that it may once again regain a kind of normative unity.”762 The Council for Trade in Services (“CTS”) provides another possible avenue to conduct human rights assessments within the WTO framework. The CTS is one of the three councils of the WTO General Council.763 Pursuant to Article IV(5) of the GATS, it oversees the functioning of the GATS and facilitates its objectives. Article XIX(3) of the GATS authorizes the CTS to assess 759  TPRM Agreement, Annex 3 to the WTO Agreement, Trade Policy Review Mechanism, para. A(ii). 760  Ibid., A(i). 761  UN ECOSOC, Sub-Commission on the Promotion and Protection of Human Rights, Mainstreaming the Right to Development into International Trade Law and Policy at the World Trade Organization (Study by Robert Howse), E/CN.4/Sub.2/2004/17, Jun. 9, 2004, para. 29. 762  Ibid., para. 50. 763  The rest of councils are the Council for Trade in Goods and the Council for Intellectual Property Rights.

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trade in services “in overall terms and on a sectoral basis” with reference to the objectives of the GATS. Just as in the case of the TPRM, the CTS has a broad mandate to conduct a thorough assessment of the GATS. The CTS assessment could consider the impacts of proposed or existing GATS rules, on the enjoyment of relevant human rights. 4.2.2 Regional and Bilateral Settings Some regional and bilateral economic arrangements have not only provided provisions containing safeguards for environmental and labor standards, but also provisions with human rights references. However, a large majority of these treaties do not consider human rights matters explicitly. 4.2.2.1

Human Rights–related Clauses in the FTAs and BITs

The EU has a longstanding practice of containing human rights clauses along with other social regulations (e.g., environment and labor issues) in many of its concluded international economic agreements.764 While the origin of this practice is found in the Lomé Conventions, human rights clauses have found expressions in a series of subsequent regional and bilateral trade/investment agreements. Some of these clauses even justify the suspension of treaty benefits when one of the parties violates basic standards of human rights or democratic principles. For example, human rights concerns are directly expressed in the agreement concluded between the EU and the Arab States. For instance, Article 2 of the EUʼs trade agreement signed with Tunisia on July 17, 1995 reads: Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles which guide their domestic and international policies and constitute an essential element of the Agreement. Notably, the agreement concluded with Morocco on February 26, 1996, makes an explicit reference to the UDHR in its human rights clause. According to Article 2, Relations between the Parties, as well as all the provisions of this Agreement itself, shall be based on respect of democratic principles and 764  See generally, Lorand Bartels, Human Rights Conditionality in the EU’S International Agreements (Oxford University Press, 2005); Lorand Bartels, Human Rights and Sustainable Development Obligations in the EU’s Free Trade Agreements, 40 Legal Issues of Economic Integration 297 (2013).

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fundamental human rights as set out in the Universal Declaration on Human Rights, which guides their internal and international policy and constitutes an essential element of this Agreement. The 1997 EU-Jordan Agreement, the 2001 Agreement with Algeria, as well as the EU-Lebanon signed on 2002 also contain identical provisions. The Cotonou Agreement has been regarded as containing the most elaborate human rights clause in EU treaty practice: this agreement “contains a detailed elaboration of the relevance of human rights in the relations between the contracting parties.”765 Article 9 of the Cotonou Agreement stipulates: The parties refer to their international obligations and commitments concerning respect for human rights. They reiterate their deep attachment to human dignity and human rights, which are legitimate aspirations of individuals and peoples. Human rights are universal, indivisible and interrelated. The parties undertake to promote and protect all fundamental freedoms and human rights, be they civil and political, or economic, social and cultural. In this context, the Parties reaffirm the equality of men and women. Instead of making direct reference to the UDHR, Article 9 of the Cotonou Agreement specifically refers to civil and political rights as well as economic and social rights. More recently, the Canada and Colombia has accepted human rights reference in the FTA concluded between them in 2008. In its preamble, the parties affirm, [ . . . ] their commitment to respect the values and principles of democracy and promotion and protection of human rights and fundamental freedoms as proclaimed in the Universal Declaration of Human Rights. While this preamble of Canada-Columbia FTA refers to human rights concerns in a broad sense, some other FTAs provide human rights clauses with a view to achieve specific policy objectives. One such example concerns rights of indigenous populations: New Zealand has included an exception provision in a number of recent treaties, to protect the indigenous Maoris. Article 5(1) of

765  Mielle Bulterman, Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality? 182 (Intersentia, 2001).

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Chapter 15 to the ASEAN-Australia-New Zealand FTA adopted in 2010 provides as follows, Article 5(1): Treaty of Waitangi Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods and services, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement including in fulfillment of its obligations under the Treaty of Waitangi. This provision justifies trade-restrictive affirmative actions for the purpose of protecting specific indigenous populations.766 Similar conditions are found in the FTAs concluded between New Zealand and other countries such as China, Hong Kong, Thailand, Singapore, and Malaysia. The bilateral investment agreement concluded between South Africa and Mauritius also provides a relevant example. The South Africa-Mauritius BIT prescribes certain restrictions on the MFN and national treatment principles, for the purpose of protecting and compensating disadvantaged groups of the society.767 Against the backdrop of a long history of racial discrimination under apartheid regime in South Africa, the parties to the South Africa-Mauritius BIT include Article 3(4).768 It reads: The provisions of paragraphs (2) and (3) shall not be construed so as to oblige one Contracting Party to extend to the investors of the other 766  Some of the protected goods of Maori are creative arts. Footnote to the Articles 1(3) and (4) of Chapter 15 clarifies the meaning of creative arts as follows: the performing arts— including theatre, dance and music—visual arts and craft, literature, film and video, language arts, creative on-line content, indigenous traditional practice and contemporary cultural expression, and digital interactive media and hybrid art work, including those that use new technologies to transcend discrete art form divisions. The term encompasses those activities involved in the presentation, execution and interpretation of the arts; and the study and technical development of these art forms and activities. 767  See generally, Luke Eric Peterson, South Africa’s Bilateral Investment Treaties: Implications for Development and Human Rights, Dialogue on Globalization, Freidrich-Ebert-Stiftung (November 2006), available at http://library.fes.de/pdf-files/iez/global/04137-20080708.pdf. 768  Agreement between the Government of the Republic of Mauritius and the Government of the Republic of South Africa for the Promotion and Reciprocal Protection of Investment, available at http://investmentpolicyhub.unctad.org/Download/TreatyFile/1991.

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Contracting Party the benefit of any treatment, preference or privilege resulting from (a) Any existing or future customs union, free trade area, common market, any similar international agreement or any interim arrangement leading up to such customs union, free trade area, or common market to which either of the Contracting Parties is or may become a party, or (b) Any arrangement with a third State or States in the same geographical region designed to promote regional cooperation in the economical, social, labour, industrial or monetary fields within the framework of specific projects, or (c) Any law or measure in pursuance of any law, the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination in its territory. In a similar vein, Article 3 of the 1998 treaty between the Czech Republic and South Africa provides that guarantees of National Treatment and MFN for foreign investors, [ . . . ] shall not be construed so as to oblige one Party to extend to the investors of the other the benefit of any treatment, preference or privilege which may be extended by the Former Party by virtue of . . . any law or other measure the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, or categories of persons, previously disadvantaged by unfair discrimination. However, South African BITs concluded with other European countries such as Belgium, Italy, the Netherlands, and the U.K. do not contain a clause similar to the one found here.769 The GATT Article XX-like exception caluse with a view to promote and protect public health found in has been reiterated in a large number of FTAs. For example, Article 22.1(1) of the Korea-Australia FTA states, For the purposes of Chapters 2 (Trade in Goods), 3 (Rules of Origin and Origin Procedures), 4 (Customs Administration and Trade Facilitation), 5 (Technical Barriers to Trade and Sanitary and Phytosanitary Measures) and 16 (Cooperation), Article XX of GATT 1994, including its interpretive notes, is incorporated into and made part of this Agreement, mutatis 769  Peterson (2006), at 11.

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mutandis. The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources. Provisions of the FTAs concluded by the US have identical language. Article 12 of the US-Jordan, Article 21.1 of the US-Singapore, and Article 22.1 of U.S.-Peru FTA are some examples in line with this practice. GATT Article XX-like exception clauses are also used in investment agreements. For instance, in the BIT concluded between Canada and China, Article 33.2 stipulates:770 Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining measures, including environmental measures: (a) necessary to ensure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement; (b) necessary to protect human, animal or plant life or health; or (c) relating to the conservation of living or non-living exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. 4.2.2.2

Human Rights Impact Assessments

Some state practices provide a useful illustration of human rights impact assessments conducted in the process of concluding regional and bilateral trade agreements. In 2007, under the leadership of the Thai National Human Rights Commission, a comprehensive human rights assessment was made to examine the potential impact of the Thai-US FTA.771 The project covered a wide range of related issues such as agriculture, environment, intellectual property, and service sectors. This FTA has not been concluded as of December 2015. 770  The full text of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments is available at http://www.international.gc.ca/trade-agreements-accordscommerciaux/agr-acc/fipa-apie/china-text-chine.aspx?lang=eng. 771  Berne Declaration, Canadian Council for International Co-operation & Misereor, Human Rights Impact Assessments for Trade and Investment Agreements. Report of the Expert Seminar, Jun. 23–24, 2010, Geneva, Switzerland, pp. 8, 17, available at http://www2.ohchr .org/english/issues/food/docs/report_hria-seminar_2010.pdf.

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The Canada-Colombia FTA has a procedure to conduct human rights impact assessments of trade and the regulation of trade. To this end, Canada and Colombia signed the “Agreement concerning Annual Reports on Human Rights and Free Trade between Canada and the Republic of Colombia” on May 27, 2010. This unique reporting process requires both parties to present a report every year on the effect of measures taken under the Canada-Colombia FTA on human rights in both countries. Canada submitted its first report in 2012. Most recently, Canada tabled its fourth report in May 2015 for the year of 2014.772 According to some critics, however, the reports address only the methodological issues and do not assess substantive impacts on peoples’ basic human rights.773 As the side agreement does not have clear process or standards associated with the impact assessment, there is a danger that this process “pays only lip service to human rights.”774 B

IEL Adjudication in the WTO, the ICSID, and Other Settings

International Courts and Tribunals (ICs) in Conflict Resolution and Management When tensions and conflicts among different regimes of international law arise in international litigation, judges and arbitrators make interpretative choices for authoritative resolution of such collisions. International adjudicators employ a range of law application and interpretation techniques Law aimed at managing normative conflicts. These conflict resolution strategies are extensively discussed in academic circles as well as in international jurisprudence.775 The following sub-sections examine a range of conflict resolu1

772  More information about this process can be found in http://www.canadainternational .gc.ca/colombia-colombie/bilateral_relations_bilaterales/rep-hrft-co_2014-dple-rapp .aspx?lang=eng. 773  Carlos M. Correa, Mitigating the impact of intellectual property in developing countries through the implementation of human rights in Research Handbook on Human Rights and Intellectual Property 210 (Christophe Geiger ed., 2015). 774  Berne Declaration, Canadian Council for International Co-operation & Misereor (2010), p. 9. 775  The distinction between interpretation and application is not easy to draw. A number of international law scholars and practitioners went further to understand the relationship between the term “interpretation” and “application.” Judge Ehrlich in his Dissenting opinion at the jurisdictional decision of the Factory at Chorzow case, held that the interpretation is a process of determining the meaning of a rule, where as the application is to determine consequences which the rule attaches to the occurrence of a given fact. McNair notes that “interpretation is a secondary process which only comes into play when it is

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tion techniques with a particular focus on the tools employed by international adjudication and quasi-adjudication agencies. Conflicts between rules of different legal branches is not unique to international law, but exist in a variety of national settings as well. In this relation, various conflict resolution strategies developed in the domestic context have been examined for their potential applications in public international law. Nevertheless, the ways in which national law resolves conflicts and promotes coherence among its sub-branches are not automatically applicable to the international law setting, because international law is differently structured, as compared to its domestic counterpart.776 1.1 Conventional Conflict Resolution Techniques Treaties are applied and interpreted in light of treaty interpretation rules, particularly the Law of Treaties (the “Vienna Convention” or “VCLT”).777 The Vienna Convention stipulates a number of provisions that are relevant and important for managing situations of normative conflict. Prior to the codification of the VCLT, some international law scholars developed a doctrinal analysis for proper conflict management. In 1917, Wright wrote: impossible to make sense of the plain terms of the treaty, or when they are susceptible of different meanings”. Gardiner sees the “natural sequence that is inherent in the process of reading a treaty.” In his view, when the meaning of treaty is clear, it is “applied”, not “interpreted”. Milanovic understands that while interpretation establishes linguistic or semantic meaning of a text, application translates that text into workable legal rules to be applied in a given case. Judge Shahabuddeen pointed out in “Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947”. According to his analysis, the processes of interpretation and application are inseparable: on the one hand, “it is not possible to apply a treaty save with reference to some factual field” and, on the other hand, “it is not possible to apply a treaty except on the basis of some interpretation of it”. Making distinction between them is of mere academic interest. McNair (1961), at 365; Gardiner (2008); Anastasios Gourgourinis, The Distinction between Interpretation and Application of Norms in International Adjudication, 2 J. Int’l Disp. Settlement 31 (2011); Factory at Chorzow (Germany v. Poland), Jurisdiction, 1927 P.C.I.J. Series A, No. 9, 31 (Jul. 26), 39, Dissenting Opinion of Judge Ehrlich; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Report 1988, p. 57 (Mar. 7), p. 59. 776  In this regard, see sub-section 1.2 of the Section B in Chapter 2. 777  Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331; this idea of creating law of treaties was first expressed in 1947 when the ILC was created by the UN General Assembly Resolution 174(II) adopted on November 21, 1947. This Resolution entrusted the ILC with the task to “promote the progressive development of international law and its codification.”

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Where the provisions of two treaties are in conflict, the proper rule would seem to require that where the signatories are the same, the later rules, but where the signatories are different the earlier rules, for in that case one of the signatories of the first treaty, not having assented to its abrogation, the other signatory was not competent to abrogate it alone, by the conclusion of a conflicting treaty with a third state.778 In his view, the identities of the parties to the treaties in question have a decisive importance in deciding which conflict resolution technique would apply. Aufricht gives a more detailed analysis of this matter. In the case of conflict between the earlier and the later treaty, he asserted that this type of conflict is to be resolved by employing one of the following strategies: (a) The earlier treaty may be deemed superseded by the later treaty; (b) An express declaration may be contained in the later treaty to the effect that the earlier treaty has been repealed; (c) The later treaty may contain an express provision that is not at variance with the letter or spirit of an earlier treaty; (d) A treaty may contain an express provision declaring that in future no conflicting treaty may be concluded; (e) A treaty may contain a pactum de contrahendo, i.e., an agreement to agree on new terms and to supersede thereby existing treaty obligations.779 Here, Aufricht’s focus is more on the substantive content of the conflicting provisions of the treaties, rather than the identities of the parties to these treaties. He also made a proposal of including specific conflict avoidance clauses in the treaty. Wright and Aufricht initiated the early discussion of how to manage and resolve conflicts in international law. They looked into specific conflict scenarios, for instance, where the parties to the earlier treaty and the conflicting treaty concluded later in time are identical, or whether the later treaty has an explicit conflict clause prescribed to avoid conflicts with the terms of the earlier treaty. Moreover, both scholars focus exclusively on when and how certain states drafted their terms of treaty rules in the first place. Their framework is too simplistic to be applied to the contemporary context: the law creation and application process of international law, are far more diversified. With this in mind, the present section closely examines a range of conflict resolution techniques that have been developed in academic discussions as well as in the decisions rendered by international courts and tribunals. The 778  Wright (1917), at 576. 779  Aufricht (1952), at 656–657.

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relevant provisions of the VCLT dealing with the issues of conflict resolution are also carefully studied in this section. 1.1.1 The Lex superior Principle and Hierarchy of International Law According to the maxim of lex superior derogate legi inferiori (“lex superior”), rules from a higher law prevail over rules from a lower source. The hierarchical relationship between different norms within a legal system is an essential precondition in order to apply this principle. In this sense, the lex superior principle is traditionally applied for resolving conflicts within a single legal system, where rules are created by a unitary legislator and exist in the form of hierarchy; it is well suited to addressing normative conflicts in a domestic legal system as the very nature of domestic legal system is “a hierarchy of different level of norms.”780 In domestic law, a normative hierarchy is a means that can be employed for solving conflicts. The national courts will look at the hierarchical status of the sources of the conflicting rules in question: for instance, the Constitution will prevail over the statute, hierarchically inferior to the Constitution, and the statute will trump local regulations. In the context of international law, applying the lex superior principle has only a limited utility, because no formal and clear hierarchy of sources exists in international law.781 As Villiger observes, an “a priori hierarchy of sources is an alien concept”782 to the structure of the present international legal order. While Article 38(1) of the ICJ Statute lists a range of sources of law that constitutes the sources of public international law in general,783 it does not establish any hierarchy between different sources of law.784 Deriving mostly from equivalent sources (i.e. the will of sovereign states), international rules and procedures are equivalent as well.785 Accordingly, there is no formal hierarchy in international law. 780  Hans Kelsen, General Theory of Law and State 115 (Russell and Russell, 1961). 781  Michael Akehurst, The Hierarchy of Sources of International Law, 47 Brit. Y.B. Int’l L. 273, 275 (1975); Czaplinski & Danilenko (1990), at 7; Pauwelyn (2003), at 94. 782  Mark E. Villiger, Customary International Law and Treaties: A Study of Their Interactions and Interrelations, with Special Consideration of the 1969 Vienna Convention on the Law of Treaties 85 (Martinus Nijhoff Publishers, 1985). 783  The primary sources are international conventions, international custom, and general principles of law. Subsidiary sources are judicial decisions and the teachings of the most highly qualified publicists. 784  Pauwelyn (2003), at 94; Ian Brownlie, Principles of Public International Law 5 (Oxford University Press, 7th ed., 2008). 785  Pierre-Marie Dupuy, Droit International Public 14–16 (1995) (translation of the original text is from the following article written by Dinah Shelton, Normative Hierarchy in

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The jus cogens norm, however, constitutes a clear exception to this premise.786 The concept of jus cogens may give supports for the idea of hierarchical supremacy in international law. It is widely accepted that the theory of jus cogens is incorporated into Article 53 of the VCLT, which codified customary law in the area of law of treaties. Article 53 reads under the heading of treaties conflicting with a peremptory norm of general international law ( jus cogens): A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.787 Similarly, the Restatement of the Foreign Relations Law of the United States of 1987 describes jus cogens in the following terms: Some rules of international law are recognized by the international community of states as peremptory, permitting no derogation. These rules prevail over and invalidate international agreements and other rules of International Law, 100 Am. J. Int’l L. 291, 292 (2006)); yet, there is a continuing attempt to institute the concept of hierarchy to examine the relationship between different sub-systems and rules of international law. Some international lawyers argue that universally recognized human rights obligations should prevail over other regimes such as international economic norms on the regulation of trade and investment. To be specific, international human rights organizations eloquently assert priority of human rights over other parts of international law. These ambitious supporter groups of human rights published a large amount of reports claiming urgent needs to defer to values protected by human rights treaties. 786   Akehurst (1975), at 281–282; Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 Eur. J. Int’l L. 566 (1997); Pauwelyn (2003) at 98; Teubner & Fischer-Lescano (2004); Andreas L. Paulus, Jus Cogens in a Time of Hegemony and Fragmentation, 74 Nordic J. Int’l L. 297 (2005); Christine Chinkin, Jus Cogens, Article 103 of the UN Charter and Other Hierarchical Techniques of Conflict Solution, 27 Finnish Y.B. Int’l L. 63 (2006); Shelton (2006), at 291–323; Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 Eur. J. Int’l L. 491 (2008); Ulf Linderfalk, The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences, 18 Eur. J. Int’l L. 853 (2008). 787  VCLT Article 53.

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international law in conflict with them. Such a peremptory norm is subject to modification only by a subsequent norm of international law having the same character.788 In consideration of the foregoing understanding, international rules that clearly conflict and thus violate jus cogens or a peremptory norm of international law will be invalidated. The peremptory norm can only be superseded by a subsequent norm of equal status.789 States are bound by jus cogens norms, whether or not they have expressly consented to them. Hence, when a treaty provision conflicts with the jus cogens norm, the latter trumps and invalidates the former, because the latter is a peremptory norm from which no derogation is permissible under international law. Agreements that derogate from peremptory norms will not have the intended legal effects.790 At the same time, this violation may incur legal responsibility on the part of the state that initially committed the breach. This line of approach of hierarchical superiority is also found in the terms of Article 103 of the UN Charter. Article 103 reads: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.791 This clause sets up the superiority of Charter obligations over conflicting obligations contained in other treaties; theoretically, a treaty in violation of the Charter is considered void.792 In any case, certain forms of hierarchy and peremptory norms exist in international law as “it is difficult to imagine any society, whether of individuals or of states, whose law sets no limit whatever to freedom of contract.”793

788  America Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987), para. 102. 789  VCLT Articles 53, 64; see also Pauwelyn (2003), at 278–282. 790  As highlighted by the ILC, “a rule conflicting with a rule of jus cogens becomes ipso facto void.” ILC Conclusion (2006), para. 41. 791  UN Charter Article 103; this provision is also seen as a conflict clause. See Milanovic (2009), at 76. 792  Same view is upheld in McNair (1961), at 209–211; Ian Sinclair, The Vienna Convention on the Law of Treaties 177–181 (Manchester University Press, 2nd ed., 1984); Aust (2007), at 256. 793  McNair (1961), at 213–214.

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However, identifying the exact meaning and the scope of jus cogens is highly controversial.794 While drafting the VCLT, Special Rapporteur Fitzmaurice also mentioned this difficulty in his 1963 report submitted to the ILC: “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”795 In the same year, during the meeting of the ILC, Robert Ago argued that it would be better not to give any examples at all, and to allow the interpretation of the article to develop.796 In his view, it was “intrinsically difficult” to come up with a list of examples of the jus cogens. Even in 1970s, years after the VCLT was successfully concluded, Abi-Saab pointed out that Article 53, which enumerated the jus cogens norms, was still an “empty box”. Interestingly, he nonetheless expressed his confidence in the potential of the provision: the category of jus cogens remains meaningful, “[ . . . ] for without the box, it cannot be filled.”797 While the scope of jus cogens norms are far from clear, rules prohibiting the use of force, genocide, piracy, slave trade and torture, crimes against humanity and the right of self-determination are generally agreed upon to constitute the jus cogens.798 Similarly, according to the 1987 Restatement of the Foreign Relations Law of the United States, jus cogens norms include: Prohibitions on (a) genocide, (b) slavery or slave trade, (c) murder or causing of the disappearance of individual, (d) torture or other cruel, inhuman or degrading treatment or punishment, (e) prolonged arbitrary detention, and (f) systematic racial discrimination.799 Although scholars and practitioners have agreed on only a small number of rules listed by the 1987 Restatement, a majority of them seem to agree that the contents of the jus cogens are strongly associated with the rules for the protection of fundamental human rights.800 Along with a group of international 794  McNair (1961), at 215; Oppenheim’s International Law (1992), at 1292. 795  Special Rapporteur Gerald Fitzmaurice, Second Report on the Law of Treaties, UN Doc A/ CN.4/156, Y.B. Int’l L. Comm’n Vol. 2 (1963), p. 52. 796  Roberto Ago, 684th Meeting, A/CN.4/156 71, Y.B. Int’l L. Comm’n, Vol. 1 (1963), p. 71. 797  Georges Abi-Saab, The Third World and the Future of the International Legal Order, 29 Revue Egyptienne de droit International 27, 53 (1973). 798  See for example, the Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, ILC, Report on the Work of its 53rd Session, at 85 (Draft Article 26). 799  Restatement (Third) of the Foreign Relations Law of the United States (1987), para. 702. 800  Myres S. Mcdougal, Harold D. Lasswell & Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity 345 (Yale University Press, 1980); Simma & Alston (1989).

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lawyers that found some basic human rights have attained peremptory status, Bianchi argues that there is “an almost intrinsic relationship between peremptory norms and human rights”.801 Meanwhile, some scholars consider “all rules of general international law created for a humanitarian purpose”802 as jus cogens. Others propose that the “right to legal personhood”803 or the “right to adequate food”804 should also be included in this category. In fields outside the sphere of human rights law, “the freedom of navigation on the high seas,”805 the international prohibition against massive pollution of sea or air,806 and even the principles of good faith and pacta sunt servanda807 have been suggested as constituting jus cogens norms. According to another perspective, the provision contained in the WTO Dispute Settlement Understanding (“DSU”) is similarly understood when it states that the Panels and the Appellate Body may not “add or diminish” rights and obligations prescribed in the WTO Covered Agreement.808 All in all, there has been no general agreement as to which rules of international law have earned the status of preemptory norms: scholars have views that vary extensively on this matter. The notion of jus cogens has received much attention in various international, regional, and national courts over the years. The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) observed that “most norms of international humanitarian law” are jus cogens.809 Moreover, the Inter-American Court of Human Rights and Inter-American Commission on Human Rights held, respectively, that the prohibitions against

801  Bianchi (2008), at 491. 802  Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 Am. J. Int’l L. 55, 59 (1966). 803  Forrest Martin, Delineating a Hierarchical Outline of International Law Sources and Norms, 63 Saskatchewan Law Review 333, 347 (2002). 804  Ibid., at 350–351. 805  Ago (1963), at 71. 806  Jochen A. Frowein, Jus Cogens in Encyclopedia of Public International Law Vol. III 67 (Rudolf Bernhardt ed., North-Holland Publishing, 1997); referring to Article 19 of the Draft Articles on State Responsibility provisionally adopted by the ILC on first reading in 1996. 807  Igo I. Lukashuk, The Principle Pacta Sunt Servanda and the Nature of Obligation under International Law, 83 Am. J. Int’l L. 513, 513–518 (1989). 808  Lorand Bartels, Applicable Law in WTO Dispute Settlement Proceedings, 35 J. World Trade 499 (2001). 809  ICTY Trial Chamber, Prosecutor v. Zoran Kupreškić et al. (Case No. IT-95-16-T), Judgment, Jan. 14, 2000, 520.

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all forms of discrimination810 and the death penalty for those under 18,811 constitute peremptory norms. The concept of jus cogens emerged in the ICJ jurisprudence relatively later in time.812 The ICJ made the first explicit reference to the term in its decision on the jurisdiction and admissibility of the Armed Activities on the Territory of the Congo case rendered in 2002. The Court held: “the prohibition of torture has become a peremptory norm ( jus cogens). That prohibition is grounded in a widespread international practice and in the opinio juris of states.”813 More recently, the prohibitions against genocide814 and the fundamental rules of international humanitarian law815 have also been recognized as having the same peremptory character. As Judge Cancado Trindade noted in his Separate Opinion in Questions relating to the Obligation to Prosecute or Extradite (Senegal v. Belgium) of 2012, “it has taken more than six decades for the Court to acknowledge its existence [ . . . ], in spite of its being one of the central features of contemporary international law.”816 It remains to 810  Juridical Conditions and Rights of Undocumented Migrants, IACtHR Series A, No. 18 (2003), paras. 82–110. 811  Douglas Christopher Thomas v. United States, IACommHR Report No 100/03, OEA/Ser./ L/V/II.114 Doc.70 rev.1 (2003), para. 52. 812  The ICJ had a number of chances to clarify the normative status of jus cogens in international law. Yet, it did not directly refer to jus cogens for many decades. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3 (Feb. 5), p. 32, paras. 33–34; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 (Jul. 8), p. 258, para. 83; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 (Jul. 9), p. 172, para. 88; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of Jurisdiction and Admissibility, I.C.J. Reports 2006, p. 6 (Feb. 3), pp. 31–32, para. 64 (on the prohibition against genocide); Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, I.C.J. Reports 2012, p. 99 (Feb. 3), paras. 95, 97. 813  Armed Activities on the Territory of the Congo, para. 99; the ICJ in this case further strengthened the argument for the prohibition of torture as having the status of jus cogens. The Court held: “it appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966; additionally, UN General Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment similarly denounced the acts of torture. 814  Armed Activities on the Territory of the Congo, para. 64. 815  Jurisdictional Immunities of the State (2012), para. 93. 816  Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422 (Jul. 20), Separate Opinion of the Judge Cancado Trindade, para. 159.

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be seen how uncertainty about the operational mode of the jus cogens will be resolved. In view of foregoing discussion, the lex superior principle is an unsatisfying conflict resolution strategy in the context of international law for several reasons. First, the formal hierarchy of norms, the essential prerequisite for the effective operation of this conflict resolution technique, is largely missing in international law. This observation has been confirmed by the overriding majority of scholars and practitioners in the field. In relation to the first point, even in arguendo, an a priori hierarchy does exist; however the lex superior principle is not well suited to addressing conflicts between norms deriving from the same source and having equal status. As a principle, all treaties have equal legal significance and are equally binding, as they are derived from an identical source, namely the consent of sovereign states. Hence, conflicts between these treaty provisions cannot be resolved as a matter of normative superiority. There is still the possibility of using the lex superior principle as an effective conflict resolution strategy. Conflicts may be resolved by referring to lex superior when jus cogens norms conflict with other rules of international law that are hierarchically inferior. In theory, norms with a peremptory character prevail over any derogating and conflicting inferior rules. However, the practical utility of the jus cogens argument in resolving conflicts is not too promising. Along these lines, Brownlie once noted: [ . . . ] jus cogens has become part of lex lata. At the same time, as has been pointed out, the vehicle does not often leave the garage. In other words the concept does not seem to have a lot of obvious relevance.817 As he famously put it, jus cogens was rarely invoked to address problems of normative conflicts in international disputes, or to invalidate a conflicting norm. Similarly, Czaplinski and Danilenko observe in their 1990 article that jus cogens is “a theoretical concept rather than a practical regulation.”818 Indeed, it is “used rarely, if ever, to invalidate supposedly conflicting norms.”819 In addition, the definition and contents of jus cogens are ambiguous; only a small number of norms concerning massive human rights violations (e.g., prohibition against genocide or slave trade) are generally recognized as constituting jus cogens. 817  Ian Brownlie, Comment in Change and Stability in International Law-Making 110 (Antonio Cassese & J.H.H. Weiler eds., De Gruyter, 1988). 818  Czaplinski & Danilenko (1990), at 42. 819  Milanovic (2009), at 71.

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1.1.2 The Rules of Lex posterior and Lex specialis Prior to the adoption of the 1969 Vienna Convention, when facing problems of conflict between varying rules of international law, decision-makers commonly invoked the interpretative principles derived from Roman law and domestic canons of statutory or contractual construction.820 The temporal criterion (lex posterior derogat lege priori or lex posterior) and the specialty criterion (lex specialis derogate lege generali or lex specialis) are the “classic canons of interpretation” addressing the clash of norms in international law.821 By prioritizing one rule over another according to certain standards, these principles serve to guide the interpretative determination of which norm should prevail when two norms are perceived as being in conflict.822 1.1.2.1 The Lex Posterior Rule

First, the lex posterior derogat lege priori has been one of the fundamental principles of treaty interpretation, and a conflict resolution technique in public international law.823 International treaties can be modified by subsequent agreements between contracting parties.824 In this case, when the rules contained in the later treaty conflict with the earlier treaty, the treaty that is later in time prevails over the earlier one. It is reasonable to give effects to the later law reflecting the latest and possibly, the most accurate will of the parties. The lex posterior principle is codified in Article 30 of the VCLT.825 Even prior to the adoption of the VCLT, international courts applied this interpretative

820  Borgen (2005), at 587. 821  Special Rapporteur, Sir Humphrey Waldock sees the meaning of canons of interpretation as discretionary rather than obligatory, observing that “for the most part, principles of logic and good sense valuable only as guides to assist in appreciating the meaning”. ILC Report, UN General Assembly, 21st session, Supp. No. 9, UN Doc. A/6309/Rev.1 (1966). 822  Pablo Zapatero, Modern International Law and the Advent of Special Legal Systems, Symposium: International Trade and Commercial Law for the Twenty-First Century, 23 Ariz. J. Int’l & Comp. L. 55, 59 (2005). 823  For further examination, see Sinclair (1984), at 98; Zapatero (2005), at 59; ILC Study Group Report on the fragmentation of international law recognizes this principle as “a general principle of law recognized by civilized nations.” ILC Fragmentation Report (2006), para. 116. 824  Oppenheim’s International Law (1992), at 1211–1213, 1292. 825  VCLT Article 30: Application of Successive treaties relating to the same subject-matter; UN Treaty Handbook of 1999 also notes that “in the case of successive treaties relating to the same subject matter concluded among the same parties, the principle of lex posterior derogate priori applies.” UN Office of Legal Affairs, Treaty Handbook 85 (1999).

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canon as in the cases of Mavrommatis Concession826 and the Electricity Company of Sofia and Bulgaria.827 Article 30(2) recognizes the use of conflict clauses that prioritize the earlier treaty.828 In the absence of such conflict clauses in the treaty, Article 30(3) provides, “if the earlier treaty is not terminated or suspended under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.”829 As a consequence of applying Article 30(3), priority is given to the provisions of the later treaty. Nevertheless, in theory, both treaties remain in force. Interpreters are asked to make their best effort toward reconciling the cumulative application of both treaties. Article 30(4) provides further guidance: it deals with certain conflict situations in which parties to the later treaty do not include all the parties to the earlier one.830 International judges and arbitrators can resort to the principles of lex posterior as a conflict resolution technique.831 However, the lex posterior principle or Article 30 of the VCLT, which codifies this principle, has only a limited utility in resolving norm conflicts in international law. The Multilateral Treaties Handbook published by the UN Office of Legal Affairs similarly notes that

826  Mavrommatis Palestine Concessions (Greece v. UK), 1924 P.C.I.J. Rep Series B, No. 2, 31 (Aug. 30). 827  Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria) 1939 P.C.I.J. Rep Series A/B, No. 77, 92 (Apr. 4). 828  VCLT Article 30(2) reads: when a treaty specifies that it is subject to, or that it is not to be considered incompatible with, an earlier or later treaty, the provisions of the other treaty prevail. 829  In relation with Article 30(3), Article 59 (Termination or suspension of the operation of a treaty implied by conclusion of a later treaty) reads: 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. 2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties. 830  VCLT Article 30(4): When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 831  See Villiger (1985), at 36; Pauwelyn (2001), at 545; Pauwelyn (2003), at 327–436.

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Article 30 “may not be sufficient to address all the problems arising with respect to the priority of the application of a particular treaty.”832 According to the 2006 ILC Study Group Report, in case of conflicts or overlaps between treaties in different regimes, determining priority of one treaty over another “cannot be reasonably assumed on a merely chronological basis.”833 To be more precise, the lex posterior principle is applicable only in a situation in which two rules are “relating to the same subject matter” as expressed in Article 30. Defining what constitutes the same “subject matter” is challenging. While the treaties concerning a range of policy areas as diverse as trade, human rights, and environment can overlap with one another, they cannot be considered as dealing with the same subject matter.834 Sir Ian Sinclair and Antony Aust share a similar criticism.835 Another precondition to applying lex posterior is the identity of the parties in the prior and subsequent treaties. As explored above, the fundamental rationale behind lex posterior is that giving effect to the treaty created later in time is a reasonable conclusion, since the most recent and accurate intention of the states is supposedly found in the later treaty. However, this rationale makes sense only when the parties to both treaties are identical; Article 30 cannot address situations in which the unity of parties is absent or when partial commonality exists in membership. In the situations of normative conflicts between treaties in different international regimes, exact unity in the identity of parties is highly unlikely. 1.1.2.2 The Lex Specialis Rule

The principle of lex specialis derogate lege generali has been a well-established interpretative maxim in international law; the special law derogates from general law in the regulation of the same subject matter.836 The origin of doctrinal attention for the lex specialis rule dates back across many centuries.837 Grotius wrote:

832  UN Office of Legal Affairs, Final Clauses of Multilateral Treaties: Handbook 85, U.N. Sales No. E.04.V.3, 2003, 86 (the full text is available at http://untreaty.un.org/English/ FinalClauses/english.pdf). 833  ILC Fragmentation report (2006), para. 138. 834  See contra, Klabbers (2005), at 93. (criticizing this view as overly narrow reading of the provision). 835  Sinclair (1984), at 98; Aust (2007), at 183. 836   For more detailed contemplation, see McNair (1961), at 393–399; Oppenheim’s International Law (1992), at 1280; the term lex specialis has no fixed meaning or formal definition in international law. Sinclair (1984), at 96. 837  Jenks (1953), at 446.

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Among those treaties, which, in the above named respects, are equal, the preference is given to such as are more particular, and approach nearer to the point in question. For where particulars are stated, the case is clearer, and requires fewer exceptions than general rules do.838 In a contemporary context, Sinclair describes lex specialis as “the concept that a specific norm of conventional international law may prevail over a more general norm.”839 This interpretative principle, in the view of Anja Lindroos is “a technique that directs the attention of the decision-makers to a more appropriate regulation.”840 On the rationale behind lex specialis, Pauwelyn observes: The following two reasons for letting a more specific norm prevail over a more general norm can be given: (i) the special norm is the more effective or precise norm, allowing for fewer exceptions . . . (ii) because of this, the special norm reflects most closely, precisely and/or strongly the consent or expression of will of the states in question.841 Similarly, the 2006 ILC Report on Fragmentation of International Law states that the special law is often more substantial, better adjusted to a specific context, and creates a more equitable result.842 Special rules are assumed to be better suited to a specific situation than rules that are intended to govern a broader range of circumstances. Scholars, as well as international courts and tribunals, have widely used the principle of lex specialis to address normative conflicts in public international law; lex specialis application is “inseparably linked with the question of conflict.”843 The relevance and importance of lex specialis as a conflict

838  The original text reads, “Inter eas pactiones quae supra-dictis qualitatibus pares sunt ut praeferatur quod magis est peculiare, ad rem propius accedit: nam solent specialia efficaciora esse generalibus.” Hugo Grotius, De Jure belli ac pacis, Libri Tres Liber II, Caput XVI, § XXIX. (1653) (Translated by A.C. Campbell, 1814, the translated text is available at http:// www.constitution.org/gro/djbp.htm). 839  See Jenks (1953), at 446; Sinclair (1984), at 96. 840  Anja Lindroos, Fragmented Legal System: The Doctrine of Lex Specialis, 74 Nordic J. Int’l L. 27, 36 (2005). 841  Pauwelyn (2003). 842  ILC Fragmentation Conclusions (2006), para. 7. 843  Karl (1984), at 469; the close relationship between the lex specialis as an interpretative principle and also as a conflict resolution tool is examined in Lindroos (2005), at 36–37.

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resolution technique was proven, even by the PCIJ, in some of its early cases.844 Although the VCLT did not explicitly codify this interpretative canon, the ICJ has frequently made use of the lex specialis to address and manage conflicts of international law. In the Continental Shelf Case, the ICJ acknowledged the special agreement between parties that contracts out of general law. The Court stated that, “it would no doubt have been possible for the Parties to identify in the Special Agreement certain specific developments in the law of the sea, and to have declared that in their bilateral relations in the particular case such rules should be binding as lex specialis.”845 In the Advisory opinion of the Legality of the Threat or Use of Nuclear Weapon (“Nuclear Weapons”) of 1996, the ICJ explicitly referred to the term lex speicialis for the first time. The Court was asked to examine the interplay between international human rights law and international humanitarian law or law of armed conflicts during wartime. It held: In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.846 The ICJ in this Advisory opinion applied the lex specialis to specify the relationship between international human rights law and humanitarian law, as one of general law to special law, in which the special law takes priority. Accordingly, the Court observed that even in times of hostility, the right to life contained in the International Covenant of Civil and Political Rights (“ICCPR”) continues to apply along with the relevant rules contained in the law of armed conflicts. 844  Jurisdiction of European Commission of the Danube between Galatz and Braila, Advisory Opinion, 1927 P.C.I.J. Rep Series B, No. 14, 23 (Dec. 28); Chemin de fer Zeltweg (Austria v. Yugoslavia), Award of Tribunal, (1934) 3 R.I.A.A. 1795, at 1803; Mavrommatis, paras. 30–31; Chorzow Factory, para. 30. 845  Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18 (Feb. 24), p. 38, para. 24. 846  Legality of the Threat or Use of Nuclear Weapon case, Advisory opinion, I.C.J. Reports 1996, p. 226 (Jul. 8), p. 240, para. 25.

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However, under this particular circumstance involving armed conflicts, protection of the right to life must be assessed against the law of armed conflicts that clearly constitutes lex specialis. The Court relied on international humanitarian law to interpret the ambiguity within the meaning of Article 6 of the ICCPR. The ECtHR has also applied lex specialis in interpreting the relation between Article 13 and Article 5(4) of the European Convention on Human Rights.847 From the Courtʼs perspective, “since the requirements of Article are less strict than those of Article 5 para. 4, the latter must be regarded as the lex specialis in respect of complaints under Article 5.”848 WTO Panel and the Appellate Body have also applied the principle of lex specialis.849 For instance, the provisions of the SCM Agreement prevail over those of the General Agreement in the instant dispute because they are specific to subsidies. The principle of lex specialis has been frequently invoked as a useful tool for adjudicating regime conflicts in many other cases. International courts and tribunals can employ the principle of lex specialis as a conflict resolution technique.850 However, it is only an incomplete response to the conflicts between different international regimes. The “same subject matter” requirement presents a similar problem as in the case of lex posterior. It may not be helpful for managing normative conflicts involving two or more specialized legal regimes. Even when assuming that two treaties deal with the same subject matter, the determination of which norm is more specific or more general in terms of subject matter is highly challenging; the level of specificity is difficult to assess in practice.851

847  Article 13 of the ECHR gives a right to an effective remedy before a national authority. Article 5(4) prescribes that anyone who is deprived of liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 848  Brannigan and McBride v. United Kingdom (Application no. 14553/89; 14554/89), Judgment, May 28, 1993, ECHR Series A, 1993 No. 258, p. 57, para. 76. 849  For instance, the Panel in Indonesia—Autos examined the restrictive measures at issue in the context of Article XIII instead of Article I because, if found, Article XIII was lex specialis. 850  Villiger (1985), at 36; Pauwelyn (2001), at 327–436; Brooks E. Allen & Tommaso Soave, Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration, 30 Arbitration Int’l 1, 20–25 (2014). 851  Lindroos (2005), at 48; see also Wolfrum & Matz (2003) at 157–158.

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1.1.3 Article 31(3)(c) and the Principle of Systematic Integration Among a variety of legal techniques designed to manage regime conflicts in international law, one strategy is treaty interpretation, which can be used to avoid as well as manage regime conflict. While Articles 31 to 33 of the 1969 Vienna Convention provide a general framework for treaty interpretation, Article 31(3)(c) in particular is widely recognized as “an operationally useful tool”852 for conflict resolution. It provides that: Article 31: General Rule of Interpretation 3. There shall be taken into account, together with the context: [ . . . ] (c) any relevant rules of international law applicable in the relations between the parties. Here, Article 31(3)(c) requires the interpreters of the treaty to take into account relevant rules of international law, along with other factors such as the ordinary meaning, object and purpose, and the context of a treaty provision.853 Within the meaning of Article 31(3)(c), interpreters belonging to international instruments are asked to consciously consider the terms and rationality of other rules of international law, when there are multiple external rules potentially involved in the resolution of the dispute, or when there are multiple interpretations of a treaty text in question, one of which would cause a violation of another norm. Along these lines, many scholars and practitioners have examined the prospect of this sub-provision for harmonizing interpretation across regime boundaries. Article 31(3)(c) leaves a considerable degree of interpretative freedom. Its terms open up a possibility of introducing external sources of international law to assist in the treaty interpretation process. However, “question-begging and contradictory”854 aspects and interpretative uncertainties remain in the usage of this sub-provision. For instance, questions arise as to the meaning of the term “relevant” and the scope of the “rules of international law.” The 852  Philippe Sands, Treaty, Custom and the Cross-Fertilization of International Law, 1 Yale Hum. Rts. & Dev. L. J. 85, 102 (1998). 853  Article 31(3)(c) of the VCLT operates in combination with the ordinary meaning, object and purpose, and the context of a treaty phrase. Along these lines, the ILC’s Commentaries on the VCLT observes, “article 27 is entitled ‘General rule of interpretation’ in the singular, not ‘General rules’ in the plural, because the Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule.” See ILC, Draft Articles on the Law of Treaties with Commentaries (1966), p. 202 (available at http://untreaty.un.org/ilc/texts/1_1.htm). 854  Brownlie (2008), at 602.

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interpretative difficulties of this provision also relate to whether the rules of international law need to apply to all disputants, all parties to the treaty in question, or reflect the common intention of the parties to the treaty under interpretation. In the absence of specific guidelines on these matters, these terms have been interpreted on a case-by-case basis. 1.1.3.1

Academic Analysis of Article 31(3)(c)

As far back as Vattel’s treatise, The Law of Nations, the antecedents embedded in Article 31(3)(c) are found. One of his major concerns revolves around the relationship between different treaties. He proposes that if in the treaty, the state has expressed itself ambiguously, [w]e ought to interpret his obscure of vague expressions, in such a manner, that they may agree with those terms that are clear and without ambiguity, which he has used elsewhere, either in the same treaty, or in some other of the like kind.855 He continues, [a]s two articles of the same treaty, can be relative one to another, two different treaties can have the same relationship, and in such a case also one treaty explains the other.856 Decades after his preliminary observation regarding the relationship between different international instruments, elements that constitute the current Article 31(3)(c) continued to be explored in a series of researche and discussion; Dudley Field’s Draft Code of 1876857 and Bluntschli’s Draft Code are good examples.858 In the first half of the twentieth century, a similar line of expression is found in a range of draft codes and research, including Fiore’s Draft Code of 1918,859 the Draft of the International Commission of American

855  Emer de Vattel, The Law of Nations or Principles on the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, Book II, Chapter XVII (Printed for G.G.J. & J. Robinson ed., Whieldon and Butterworth, 1793), para. 284. 856  Ibid., para. 286. 857  David Dudley Field’s Draft Code, 29 Am. J. Int’l L. 1207, 1207–1208 (1935). 858  Bluntschli’s Draft Code, 29 Am. J. Int’l L. 1208, 1208–1212 (1935). 859  Fiore’s Draft Code, 29 Am. J. Int’l L. 1212, 1219 (1935).

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Jurists of 1927,860 the Convention on Treaties of 1928,861 the Interpretation of Treaties of 1933,862 and finally the Draft Convention on the Law of Treaties of 1935, prepared by Harvard Research on the Law of Treaties.863 For instance, Fiore’s Draft Code observes that, [a]mbiguity may be eliminated by referring to stipulations of another treaty relating to analogous matters between the same parties. The Harvard Draft Convention on the Law of Treaties of 1935 was the most significant attempt to codify the law of treaties. Article 19 of the 1935 Harvard Draft reads, [ . . . ] the conditions prevailing at the time interpretation is being made, are to be considered in connection with the general purpose which the treaty is intended. Throughout the following decades, efforts to shape the relationship between different rules of international law continued to be debated in various forums, and at various levels of intensity. It was only in the 1950s that international law scholars began to pay more attention to this aspect of treaty interpretation.864 Earlier efforts at examining the role of external rules and principles of international law took also place in the circle of the Institut de Droit International, and in the ILC forum. In a similar vein, many scholars have asserted that the interpretation of a treaty requires an interpreter to carefully consider other rules of international law. For instance, McNair observes in 1960 that treaties must be “applied and interpreted against the background of the general principles of international law.”865 However, even after the adoption of the VCLT, Article 31(3)(c) was rarely referred to or examined by legal scholars.866 Article 31(3)(c) was not at the forefront of the scholarly agenda. Indeed, while treaty interpretation has long been 860  As submitted in Rio de Janeiro in 1927, Draft of the International Commission of American Jurists, 29 Am. J. Int’l L. 1222, 1222–1224 (1935). 861  Adopted by the Sixth International Conference of American States at Havana, Feb. 20, 1928, Convention on Treaties, 29 Am. J. Int’l L. 1205, 1205–1207 (1935). 862  The Interpretation of Treaties, 29 Am. J. Int’l L. 1225, 1226 (1935), Article 4. 863  Draft Convention on the Law of Treaties, 29 Am. J. Int’l L. Special Supplement 653, 661 (1935), Article 19. 864  Oppenheim’s International Law (1992), at 1275. 865  McNair (1961), at 466. 866  On general reluctance to refer to Article 31(3)(c), Sands (1998), at 95.

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a source of prominent interest for academics as well as international tribunals, Article 31(3)(c) has remained among the most academically neglected topics concerning interpretation practices. The interest in the interpretative role of Article 31(3)(c) reemerged, particularly following the ICJ’s 2003 Judgment in Oil Platforms867 and the ILC’s work on various aspects of the fragmentation of international law. Within the setting of ILC, the discussion on the potential of Article 31(3)(c) started a few years before the Commission’s Study Group on the fragmentation of international law submitted its final report in 2006: the ILC rediscovered the usefulness of this provision as an interpretative technique to prevent and resolve normative conflicts. In the ILC’s preliminary report on the difficulties arising from the diversification and expansion of international law, the ILC strongly committed itself to “a study on the interpretation of treaties in the light of ‘any relevant rules of international law applicable in the relations between the parties’ [ . . . ] in the context of general developments in international law and concerns of the international community.” In July 17, 2006, the Study Group adopted a report with 42 conclusions on the various issues regarding the challenges of the fragmentation of international law. Seven of them are specifically concerned with the role of treaty interpretation and Article 31(3)(c). This ILC Study Group report discussed matters including systemic integration, interpretation as integration in the system, application of systemic integration, application of custom and general principles of law, application of other treaty rules, inter-temporality, and open or evolving concepts.868 The 2006 ILC Report on Fragmentation of International Law recognizes a strong association between Article 31(3)(c) and the interpretative principle of systemic integration. This principle requires “the integration into the process of legal reasoning—including reasoning by courts and tribunals—of a sense of coherence and meaningfulness.”869 The ILC Report observes as follows: Principle of systemic integration goes further than merely restate the applicability of general international law in the operation of particular treaties. It points out to a need to take into account the normative environment more widely [ . . . ] the normative environment cannot 867  Judge Buergenthal considered Article 31(3)(c) as being “sound and undisputed in principle as far as treaty interpretation is concerned” in Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment on Preliminary Objections, I.C.J. Report 1996, p. 803 (Dec. 12), Separate Opinion of Judge Thomas Buergenthal, para. 22. 868  ILC Fragmentation Conclusions (2006), paras. 17–23. 869  ILC Fragmentation Report (2006), para. 419.

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be ignored and when interpreting the treaties, the principle of integration should be borne in mind. This points to the need to carry out the interpretation so as to see the rules in view of some comprehensible and coherent objective, to prioritise concerns that are more important at the cost of less important objectives. This is all that article 31(3)(c) requires; the integration into the process of legal reasoning—including reasoning by courts and tribunals.870 Campbell McLachlan similarly notes that Article 31(3)(c) implicates a principle of systemic integration within the international legal system. In his view, systemic integration is “an unarticulated major premise in the construction of treaties” and “flows so inevitably from the nature of a treaty as an agreement governed by international law”871 Along with McLachlan, a group of renowned scholars in this field of study, including French and Hafner, as well as Koskenniemi, Pauwelyn, and Sands, have repeatedly asserted that Article 31(3)(c) is a codification of the principle of systemic integration that is essential to ensure the coherent development of international law.872 They consider that Article 31(3)(c) provides a meaningful reference point to use treaty interpretation as a conflict resolution strategy, in the sense that this clause allows one treaty to be properly reconciled with other rules of international law. Importantly, it seems to be the only legal tool in the Vienna Convention capable of directly addressing cross-sectoral conflicts between treaties concerning different subject matters while the traditional conflict resolution techniques examined in the foregoing sections cannot provide complete solutions for this particular type of conflict. Article 31(3)(c) has received significant attention from many IEL scholars when contemplating the IEL’s relationship with other non-IEL fields. The possibility of interpreting IEL treaty provisions in light of non-IEL rules has also been contested. 1.1.3.2

Legislative Efforts toward the Codification of Article 31(3)(c)

The adoption of the 1969 Vienna Convention was a major achievement of international law facilitated by the ILC. Created in 1947, the ILC was entrusted with the tasks to “promote the progressive development of international 870  Ibid., paras. 415, 419. 871  Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L. Q. 279, 280 (2005). 872  See generally, McLachlan (2005), at 279; Duncan French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules, 55 Int’l & Comp. L.Q. 281 (2006).

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law and its codification.” One of its basic tasks was to develop a proper set of rules of interpretation in international law.873 The ILC, at its very first session in 1949, selected the law of treaties as a suitable subject matter for codification. It took years to complete a draft convention that could be used as a basis of negotiation for international conferences.874 The origins of Article 31(3)(c) contained in the VCLT of 1969 are found in the reports submitted by ILC Special Rapporteurs Hersch Lauterpacht, Gerald Fitzmaurice and Humphrey Waldock, as well as the wider discussion among the members of the ILC. Although it is not clear from the present wording of the Article 31(3)(c), existing theories concerning the so-called “intertemporal rules” were influential in the formation of the provision.875 Sir Humphrey Waldock prepared draft articles for codifying the law of treaties as the last Special Rapporteur on this project. In his report of 1964, Draft Article 56, concerning the application and interpretation of international law, was the first draft of the provision that later became the provision of Article 31(3)(c). From his perspective, (1) A Treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up. (2) Subject to paragraph 1, the application of a treaty shall be governed by the rules of international law in force at the time when the treaty is applied.876 Based on the solid theoretical foundation established by Waldock’s six reports to the Commission, the ILC adopted a final set of draft articles, “1966 Draft Articles on the Law of Treaties” along with a detailed commentary on each 873  To this end, the ILC initially appointed James Brierly as a Special Rapporteur in its first session in 1949. After his resignation in 1952 and two of his successors, Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice continued to elaborate the rules regarding various aspects of treaties. Although reports submitted by these Rapporteurs did not provide any final solution to the difficult issue of interpretation, their works became a steppingstone that gives impacts on what would become Article 31(3)(c). Sir Humphrey Waldock was appointed in 1961. 874  The UN General Assembly called for the first conference in 1966. Subsequently, two sessions were held in Vienna respectively in 1968 and 1969. On May 22, 1969, the Conference completed its work and as a result, the draft Convention was adopted. 875  Judge Huber’s statement in the case of Island of Palmas is regarded as the classic expression on the intertemporal rule: “a juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled.” Island of Palmas, at 845. 876  ILC, Y.B. Int’l L. Comm’n, Vol. II (1964), 8–9.

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provision. Subsequently, under the auspices of the UN, international conferences were held in Vienna to conclude a multilateral convention on this matter, in 1968 and 1969. The adoption of Article 31(3)(c) reaffirms the longstanding belief that rules should not be considered in complete isolation of general international law. Now, the focus of the research along these lines moves toward finding ways in which this provision can fully perform its original purpose. Nevertheless, the controversy surrounding Article 31(3)(c) was largely left unsolved. Critics assert that this provision only gives limited guidance as to when and how it is to be used. Along these lines, Hugh Thirway wrote, in 1990, expressing his concerns regarding Article 31(3)(c): “it is [ . . . ] doubtful whether this sub-paragraph will be of any assistance in the task of treaty interpretation.”877 1.1.3.3 Judicial Application of Article 31(3)(c) (i) Pre-VCLT Jurisprudence

Even prior to the adoption of the VCLT in 1969, the interpretative tools used by courts and tribunals considerably overlap with the rules of the VCLT, concerning textual interpretation, intention of the parties, object and purpose of the treaty, and consideration of travaux préparatoires. They also frequently examined the possibility of whether other rules of international law can shed light on the interpretation of obscure and dubious provisions of a treaty. PreVCLT jurisprudence can offer useful insights as to the interpretative principles enshrined in Article 31(3)(c); because in many of these pre-VCLT cases, judges and arbitrators referred to international legal arrangements other than the one interpreted. This line of approach is found in the Grisbadarna case of 1909878 concerning the ownership of the maritime area of Grisbadarna. Sir Humphrey Waldock examined this case to provide the basis of his proposal on the draft article that later became Article 31(3)(c).879 In Grisbadarna, the arbitral tribunal assessed the applicability of a treaty concluded in the seventeenth century, in determining the frontier between Sweden and Norway to the limit of territorial seas. The treaty contained provisions for the final settlement of the frontiers. In the view of the tribunal, this treaty is still relevant and applicable in drawing a line in the context of the twentieth century, because the law of the time was 877  Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960–1989 Part III, 62 Brit. Y.B. Int’l L. 1, 58 (1991). 878  The Grisbadarna Case (Norway v. Sweden), Award, 11 R.I.A.A. 147 (Oct. 21, 1909)(Unofficial English translation is found at http://www.pca-cpa.org/showfile.asp?fil_id=166). 879  Sir Humphrey Waldock, Commentary on draft articles, Y.B. Int’l L. Comm’n Vol. II (1964), p. 9.

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appropriate for ascertaining basic rules of determining the breadth of the territorial seas. Similarly, the Claims Commission, in the case of Georges Pinson, held that “every international convention must be deemed tacitly to refer to general principle of international law for all the questions that it does not itself resolve in express terms and in a different way.”880 In River Oder,881 the PCIJ noted that “purely grammatical analysis of a text” is an insufficient approach to treaty interpretation, and the “principles underlying the matter to which the text refers” need to be properly considered.882 Nevertheless, it did not go so far as to consider preceding treaties that could potentially give better insight to interpret the treaty in question. The parties to this case before the PCIJ drew attention to a number of provisions contained in other Peace Treaties governing the regulation of rivers of the Moselle and the Danube. On this matter, the Court declined to consider external treaties in interpreting Article 331 of the Treaty of Versailles. It held: The Court, being of the opinion that these arguments, drawn from independent provisions and diplomatic negotiations, cannot modify the conclusion which it has reached by means of a direct interpretation of the provisions applicable in the particular case, does not think it necessary to deal with these arguments.883 In many subsequent cases, international courts and tribunals repeatedly referred to external international rules that were contained in legal instruments other than the one interpreted, despite the absence of formal interpretative provision that would legally justify this approach. In the Polish Nationals in Danzig Advisory Opinion,884 the PCIJ examined the relationship between the Convention of Paris of Nov. 9, 1920, between Poland and Danzig, and the 1919 Treaty of Versailles. The Court held as follows:

880  Georges Pinson case, Franco-Mexican Commission, 1927–1928, No. 292. 881  Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder (UK, Czechoslovakia, Denmark, Germany & Sweden v. Poland), Judgment, 1929 P.C.I.J. Series A, No. 23, 3 (Sept. 10)[“River Oder”]. 882  River Oder, at 26. 883  Ibid., at 30. 884  Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932 P.C.I.J. Series A/B, No. 44, 4 (Feb. 4)[“Polish Nationals in Danzig Advisory Opinion”].

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[a]s between Danzig and Poland, the Convention of Paris is the instrument which is directly binding on Danzig; but in case of doubt as to the meaning of its provisions, recourse may be had to the Treaty of Versailles, not for the purpose of discarding the terms of the Convention, but with a view to elucidating their meaning.885 In its view, when the terms of the provisions are not sufficiently clear, other relevant rules of international law can be used to clarify and elaborate their meaning. The PCIJ had another opportunity to deal with a similar line of inquiry in the Case of Rights of Minorities in Upper Silesia886 between Germany and Poland. Initially, when interpreting Article 131 of the 1922 German-Polish Convention concerning Upper Silesia, the Court looked closely at other provisions of the same Convention by making several cross references. At the same time, it further examined another treaty concerning Upper Silesia, the treaty between Poland and the Free City of Danzig concluded in 1921.887 Interestingly, only one of the parties to the dispute was a party of the latter treaty. In this case, the Court not only considered the context of the German-Polish Convention but also referred to the other treaty, combining two general principles of treaty interpretation. The Advisory Opinion in the case of Employment of Women during the Night888 is also a useful example of the Court’s reluctance to consider external treaties under certain circumstances. Here, when interpreting the Convention of Washington in 1919, the PCIJ declined to take into account the Convention of Berne adopted in 1913. [t]he text of the Convention as adopted made no reference to the Berne Convention [ . . . ] The Washington Convention cannot therefore be said, 885  Polish Nationals in Danzig Advisory Opinion, 32; it is interesting, however, to note that in the exactly following page the Court seems to go back on its previous conclusion by saying that: The conclusion of the Convention does not in any way impair the legal value of Article 104 of the Treaty as an authentic expression of the mandate conferred on the Principal Allied and Associated Powers and of the objects of the Convention; from this point of view and to this extent, the article is enforceable in respect of the Free City. 886  Rights of Minorities in Upper Silesia (Minority Schools)(Germany v. Poland), Judgment, 1928 P.C.I.J. Series A, No. 15, 3 (Apr. 26)[“Minorities in Upper Silesia”]. 887  Ibid., at 40. 888  Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion, 1932 P.C.I.J. Series A/B, No. 50, 364 (Nov. 15)[“Employment of Women during the Night Advisory Opinion”].

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by reason of the work on which the 1919 Conference was engaged, to be so intimately linked with the Berne Convention as to require that the terms of the Washington Convention should bear the same meaning as the terms of the Berne Convention.889 The PCIJ strongly asserted that unless it finds the direct reference to the terms, an interpretative recourse to the external treaties is not allowed. This restrictive view is in contradiction to the previous decisions rendered by the PCIJ. In these cases, the Court agreed to make use of external treaties even without finding any direct reference. This line of interpretative perspective continued to be acknowledged in the setting of the ICJ. In the Right of Passage, the Court confirmed that “it is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and intending to produce effects in accordance with existing law and not in violation of it.”890 (ii) Post-VCLT Jurisprudence

Article 31(3)(c) is created as one of the integral principles of treaty interpretation of the VCLT. However, international courts once considered that Article 31(3)(c) was either inapplicable or not dispositive. Indeed, as Philippe Sands points out, the actual meaning of this provision is difficult to examine in practice “since it appears to have been expressly relied upon only very occasionally in judicial practice.”891 The interest in this provision reemerged after the ICJ’s 2003 Judgment in Oil Platforms, and the publication of the final report submitted by the ILC’s Study Group on the fragmentation of international law in 2006.892

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International Court of Justice

In Gabcikovo-Nagymaros,893 the ICJ examined the interpretative role of external norms, in constructing the meaning of the treaty provision in question at hand. The Court was asked to interpret relevant provisions contained in the 1977 Treaty concluded between Hungary and Czechoslovakia that intended to regulate various legal problems concerning the construction and operation 889  Employment of Women during the Night Advisory Opinion, at 377. 890  Right of Passage, at 142. 891  Sands (1998), at 95. 892  A “flowering of case-law” in accordance with Article 31(3)(c) has taken place in international jurisprudence. Gardiner (2008), at 251. 893  Case Concerning the Gabcíkovo-Nagymaros Project, Judgment, I.C.J. Report, 1997, p. 7 (Sept. 25) [“Gacikovo-Nagymaros”].

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of a joint project in the Danube River. The purposes of the project were to produce hydroelectric power and improve conditions for navigation on the river. In accordance with this treaty, the construction of a system of locks on the Danube River was to be operated jointly by both parties, with the parties having binding legal obligations to secure the quality of the waters of the Danube.894 Parties were also required to “ensure compliance with the obligations for the protection of nature.”895 One of the legal issues presented before the Court was to clarify the normative relationship between the 1977 treaty and other international rules in the area of environmental protection. Instead of explicitly referring to Article 31(3)(c), the Court ultimately chose to deal with the issue of interrelationship between these competing rules of international law on an ad hoc basis. Judge Weeramantry in his Separate Opinion, pointed out the ICJ’s general reluctance to make use of Article 31(3)(c): this sub-provision “scarcely covers this aspect with the degree of clarity requisite to so important a matter.”896 The ICJ decision in Oil Platforms897 has a pivotal importance for assessing the applicable scope and the implications of Article 31(3)(c). According to the assertion of Iran, the U.S.’s destruction of Iranian offshore oil platforms located in the Persian Gulf was a breach of obligations incumbent upon the U.S. under international law, particularly the provisions of the 1955 Treaty of Amity, Economic Relations and Consular Rights concluded between Iran and the United States.898 The U.S. asserted, as a defense, that its measures constituted self-defense within the meaning of the Article XX(1)(d) of the same treaty, which allows states to use forceful measures necessary to protect essential security interests. The question arose as to whether a series of military attacks committed by the U.S. in this case were legally justifiable, in a proper interpretation of the Article XX(1)(d). The ICJ made a general observation on the interpretation of this treaty provision:

894  Treaty Between the Hungarian People’s Republic and the Czechoslovak Socialist Republic Concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks (Sept. 16, 1977), Article 15. 895  Ibid., Article 19. 896  Gacikovo-Nagymaros (1997), Separate Opinion of Vice-President Weeramantry, 114. 897  Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 161 (Nov. 6) [“Oil Platforms”]. 898  Iran contended that the US’s attacks violated Article I providing “firm and enduring friendship between the parties” and Article X concerning the “freedom of commerce and navigation” contained in the 1955 Treaty of Amity, Economic Relations and Consular Rights.

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Interpretation must take into account “any relevant rules of international law applicable in the relations between the parties” (Art. 31, para 3 (c)). The Court cannot accept that Article XX, paragraph 1(d) of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force . . . The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation.899 Here, the Court made an explicit reference to Article 31(3)(c) and recognized its clear importance in treaty interpretation practices. Given the implication of the Court’s usage of Article 31(3)(c) in this case, scholars showed concerns about the impact of the Court’s decision on this point, nothing that it was “a brave, but flawed and ultimately dangerous move by the Court”900 or “a roller coaster of an opinion”.901 While it ultimately reached a conclusion on the asserted legal claims—that the measures taken by the U.S. could not be justified under the 1955 Treaty—on the issues of clarifying the proper approach to treaty interpretation, the ICJ Judges were in great disagreement. This led to two declarations, seven separate opinions and two dissenting opinions. Judge Higgins, Buergenthal, Simma and Elaraby further elaborated on the proper meaning and the usage of Article 31(3)(c) in their respective separate opinions. More recently, the ICJ reaffirmed the customary nature of Article 31(3)(c) in the case of Certain Questions of Mutual Assistance in Criminal Matters in 2008. This provision is to be regarded as a codification of customary international law (see Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1075, para. 18) and is therefore applicable to the treaty relations between Djibouti and France under consideration in the present case despite the fact that neither Djibouti nor France is a party to the Vienna Convention.902 In this case, although both parties to the dispute had not ratified to the Vienna Convention, the Court found this sub-paragraph (c) applicable to the relations 899  Oil Platforms, 41. 900  James A. Green, The Oil Platforms: An Error in Judgment?, 9 J. Confl. & Sec. L. 357, 386 (2004). 901  Harvey Rishikof, When Naked Came the Doctrine of ‘Self-Defense’: What is the Proper Role of the International Court of Justice in Use of Force Cases?, 29 Yale J. Int’l L. 331, 331 (2004). 902  The ICJ confirmed the customary nature of Article 31(3)(c) in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 177 (Jun. 4), p. 219, para. 112.

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between them, because this clause is a codification of customary international law, in the field of treaty interpretation. On a separate note, some scholars have considered the principle of evolutionary interpretation to also be the attributes of Article 31(3)(c).903 Sinclair asserts that this principle has a significant implication in the process of interpretation: there is some evidence that the evolution and development of international law may exercise a decisive influence on the meaning to be given to expressions incorporated in a treaty, particularly if these expressions themselves denote relative or evolving notions such as ‘public policy’ or ‘the protection of morals’.904 This interpretative approach was adopted by the ICJ in its Advisory opinion to the Namibia case, concerning the relationship between South Africa and Namibia (South West Africa). This case arose against the backdrop of the socalled mandate system created by the League of Nations, at the conclusion of the First World War. Under Article 22(1) of the League Covenant, South Africa had assumed “a sacred trust” to provide for the “well-being and development” of the South-West African Population. As for the interpretation of the term “a sacred trust”, the Court explored extensively on the relevant developments in international law and relations from 1919, when the Covenant was initially concluded. Along these lines, the Court held: an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation.905 In order to clarify the meaning of the term, the Court examined the language expressed in Article 73 of the UN Charter, in the Declaration on the Granting of Independence to Colonial Countries and Peoples. Here, although the Court did not make explicit reference to Article 31(3)(c), many scholars found the Court’s analysis clearly reflected the interpretative principles contained in this provision. However, some scholars are of the view that contemporary language 903  See Taslim Olawale Elias, The Doctrine of Inter-temporal Law, 74 Am. J. Int’l L. 292 (1980); Sinclair (1984), at 139. 904  Sinclair (1984), at 139. 905  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 (Jun. 21), p. 19, para. 53.

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is one of the decisive factors with respect to determining “the ordinary meaning” of the term “a sacred trust”.906 ICJ has taken this evolutionary approach in a number of cases. In the Case of Aegean Sea Continental Shelf between Greece and Turkey, the Court stated: It follows that in interpreting and applying reservation (b) with respect to the present dispute the Court has to take into account the evolution which has occurred in the rules of international law concerning a coastal State’s rights of exploration and exploitation over the continental shelf.907 More recently, the Court confirmed that the “treaty is not static, and is open to adapt to emerging norms of international law”908 and reflected this line of interpretative perspective in interpreting provisions in the Case Concerning the Gabcíkovo-Nagymaros Project.

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European Court of Human Rights

The ECtHR has engaged in treaty interpretation based on Article 31(3)(c) to justify its frequent reference to a range of legal materials existing outside of the ECHR. A series of decisions rendered by this Court have given effects to Article 31(3)(c). In its earlier jurisprudence, provisions concerning the right of access to court proceedings,909 the right to a fair trial, and state immunity were interpreted in light of other relevant rules of international law.910 The ECtHR’s decision in Loizidou v. Turkey clearly held in 1996: the principles underlying the Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention’s special character as a human rights treaty, it must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction.911

906  Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties 83 (Springer, 2007). 907  Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 3 (Dec. 19, 1978), p. 33, paras. 78–80. 908  Ibid., para. 80. 909  Golder v. United Kingdom, Judgment, App No. 4451/70, Eur. Ct. H.R., para. 29 (Feb. 21, 1975). 910  Al-Adsani v. United Kingdom, Judgment, App No. 35763/97, Eur. Ct. H.R., para. 60 (Nov. 21, 2001). 911  Loizidou v. Turkey, Judgment, App No. 15318/89, Eur. Ct. H.R., para. 43 (Dec. 18, 1996).

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Here, the Court repeatedly held that a treaty must be applied and interpreted together with the context as well as other relevant rules of international law. To establish the basis of its reasoning, it cited the terms of Article 31(3)(c) of the Vienna Convention. This line of thought was confirmed in the admissibility decision in the Bankovic case of 2001. The ECtHR observed that “. . . the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Court must also interpreted as far as possible in harmony with other principles of international law of which it forms part.”912 In the 2005 case of Mamatkulov and Askarov v. Turkey,913 the Grand Chamber also relied on Article 31(3)(c) to interpret treaty provisions of the ECHR. Rustam Mamatkulov and Abdurasulovic Askarov, members of the Opposition Party against the Uzbek government, were extradited from Turkey to Uzbekistan in March 1999, despite the Court’s interim measures requesting Turkish government not to extradite them until the Court had a chance to review their applications fully. Uzbek authorities made this extradition request based on allegations that the applicants were suspected of terrorist attacks in Uzbekistan. The applicants claimed before the Grand Chamber of the ECtHR that Turkey violated Article 2, 3, and 6 of the Convention and Rule 39 on the interim measures of the Court’s Rules. While the Grand Chamber did not find any breach of these provisions, it held that Turkey violated Article 34 of the ECHR due to Turkey’s failure to comply with the interim measures indicated by the Court’s initial decision of February 6, 2003. The Grand Chamber heavily relied on Article 31(3)(c) in interpreting Article 6(1) of the ECHR, in relation to the criminal proceedings in Uzbekistan. In line with the previous decisions of the ECtHR, it held as follows: The Court must determine the responsibility of the States in accordance with the principles of international law governing this sphere, while taking into account the special nature of the Convention as an instrument of human rights protection914 [ . . . ] [t]hus, the Convention must be interpreted so far as possible consistently with the other principles of international law of which it forms a part.915 912  Bankovic and others v. Belgium and 16 other contracting States, Decision on Admissibility, App No. 52207/99, Eur. Ct. H.R., para. 57 (Dec. 12, 2001). 913  Mamatkulov and Askarov v. Turkey, Judgment, App Nos. 46827/99; 46951/99, Eur. Ct. H.R., para. 293 (Feb. 4, 2005). 914  Ibid., para. 99. 915  Ibid., para. 111.

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The Court made clear once again that the ECHR must be interpreted in light of other relevant rules of international law, within the meaning of Article 31(3)(c). 1.1.3.4

Article 31(3)(c) and Conflict Resolution

Article 31(3)(c) has been recognized as one of the most important conflict resolution techniques. Article 31(3)(c) requires judges and arbitrators to systematically interpret rules and principles against the broader normative environment of international law. It is the only codified interpretative principle that explicitly refers to the relevance of other rules of international law. The principle of systemic integration embedded in Article 31(3)(c) seeks to ensure coherence, by treating each regime as if it were an integral part of the broader intentional legal system. Questions arise as to how to operationalize the principle of systemic integration in actual practice; the operationalization of this provision has been a fascinating topic of discussion for international law scholars and practitioners. International courts and tribunals have employed an Article 31(3)(c)-like interpretative strategy, to go beyond the instrument in interpretation. On a case-by-case basis, interpreters may identify relevant rules of international law that need to be taken into account to solve complex conflicts between rules or values contained in those rules. Recourse to this provision has also been found in the arguments asserted by the parties to the dispute. Pursuant to the principle of systemic integration, relevant rules of international law must be taken into account when the required conditions are met. Nevertheless, when an Article 31(3)(c)-based interpretation produces the exact opposite result to what the terms of the treaty clearly state, this interpretative approach cannot be justified.916 Unless the court is empowered to act ex aequo et bono, the interpretation contra legem (i.e. against the law) would not normally be permitted. 1.2 Other Conflict Resolution Techniques Many scholars have conducted studies investigating when and how a private international approach would work to address public international law conflicts.917 A number of private law solutions have been developed to resolve 916  McNair (1961), at 384–385. (quoting Cayuga Indian Claims (U.K. v. U.S.), 20 Am. J. Int’l L. 574, 587 (1926)). 917  See for example, Michaels & Pauwelyn (2012); Alex Mills, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law 139 (Cambridge University Press, 2009); William

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conflicts between legal systems. Ralf Michaels and Joost Pauwelyn identify three types of interpretative approaches derived from private international law and practice: the traditional method, governmental interest analysis and functional analysis.918 These techniques were typically employed in cases concerning conflicts between laws of two different countries or states. In the international law context, these private international law-based techniques are more suitable for dealing with conflicts between different legal systems than conflicts arising within the legal system. According to the “traditional method,” interpreters determine the applicable law on the basis of “conflict-of-law rules” designed for different areas of law. The contents of the substantive law are not a focal point of concern in using this method. In practice, unless this application would violate public policy in the law of the selected forum,919 the selected applicable law applies. Secondly, the “government interest” approach guides interpreters in evaluating the governmental interest of a state in having its own law applied. The concept of comparative impairment has a particular significance in employing this approach. In the case of conflicts between laws, interpreters should “apply the law of the state whose policy would be impaired the most by failure to apply its law.”920 Many international law scholars find that this private international law-based approach, concerning the choice of law can also be used in a similar fashion to resolve public international law conflicts. It is also a rule of facilitating “horizontal subsidiarity, seeking the trade-off that provides greatest welfare.”921 Lastly, the “functional” approach is also applicable. While there are varying understandings of its meaning, this approach essentially intends to find the law “with the closest connection to the facts, considering a variety of factors” by a comparative evaluation of the asserted laws or policies.922

W. Park, Rules and Standards in Private International Law, 73 Arbitration 441, 442 (2007); Dirk Pulkowski, The Law and Politics of International Regime Conflict 152–153 (Oxford University Press, 2014); Joel P. Trachtman, The Future of International Law: Global Government 239–240 (Cambridge University Press, 2013). 918  Michaels & Pauwelyn (2012), at 357. 919  McNair (1961), at 385. 920  William F. Baxter, Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 3 (1963); his work is referred by some international law scholars in examining this matter. Michaels & Pauwelyn (2012), at 359; Mills (2009), at 139; Trachtman (2013), at 240. 921  Trachtman (2013), at 240. 922  Michaels & Pauwelyn (2012), at 360.

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2 Environmental and Social Protection in the WTO Adjudication 2.1 GATT Cases Involving Environmental and Social Regulations A number of disputes arising out of the interaction between the nondiscrimination principle of the international trading system and domestic environmental and health regulation were brought before the GATT Panels of Herring—Salmon in 1988,923 Thailand—Cigarettes in 1990,924 and Tuna— Dolphin in 1991 and 1994.925 While factual details of these cases varied, the common core issue revolved around the legality of the respondents’ trade restrictive measures that were adopted to protect environment or public health. 2.1.1 Herring—Salmon The GATT Panel in the case of Herring—Salmon was established by the complaints submitted by the U.S. in March 1987. The U.S. claimed that Canadian export restrictions on unprocessed herring and salmon violated Article XI of the GATT, and were not justified by Article XX. Canada argued, in response, that this measure was taken in accordance with Canada’s Fisheries Act of 1970 seeking to preserve various fisheries. In particular, Canada invoked Article XX(g) as justifying such measures: according to sub-paragraph (g), trade-restrictive measures are justified when they are “relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” In its 1988 report, the Herring—Salmon Panel recognized the species of herring and salmon as “exhaustible natural resources” within the meaning of sub-paragraph (g). Nonetheless, it found that Canada’s export restrictions were neither “relating to” the conservation of herring and salmon stocks nor “in conjunction with” rendering effective restrictions on the harvesting of these fish.926 It was held that “relating to” means “primarily aimed at,” inferring such primary intent from the fact that the measure was the least trade-restrictive one. The Panel emphasized that Canada imposed restrictions on the purchases of unprocessed herring and salmon, only in the cases of foreign processors and consumers, but not the domestic processors and consumers. 923  GATT Panel Report, Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, adopted on Mar. 22, 1988 (L/6368—35S/98)[“Herring—Salmon”]. 924  GATT Panel Report, Thailand—Restrictions on Importation of and International Taxes on Cigarettes, adopted on Nov. 7, 1990 (DS10/R—37S/200)[“Thailand—Cigarettes”]. 925  GATT Panel Report, United States—Restrictions on Imports of Tuna, 20 I.L.M. 1594 (1991, not adopted)(DS21/R—39S/155)[“Tuna—Dolphin I”]; United States—Restrictions on Imports of Tuna 33 I.L.M. 839 (1994, not adopted)[“Tuna—Dolphin II”]. 926  GATT Panel Report, Herring—Salmon, paras. 4.6–4.8.

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2.1.2 Thailand—Cigarettes The Panel, in the case of Thailand—Cigarettes, was concerned with the restrictions on imports of cigarettes, as Thailand imposed higher taxes on foreign-produced cigarettes than their domestic equivalents. Under Thailand’s regulations, importers had to go through a special licensing procedure. The U.S. brought this suit against Thailand, claiming that Thailand’s import restrictions on cigarettes were inconsistent with Article XI(1) of the GATT, and its internal imposition of taxes on cigarettes also violated Article III. Thailand argued that the disputed measures were adopted “to protect the public from harmful ingredients in imported cigarettes, and to reduce the consumption of cigarettes in Thailand.”927 With respect to Thailand’s invocation of GATT Article XX(b), the question arose as to whether such measures were justified in view of this sub-provision which stipulates exceptions “necessary to protect human, animal or plant life or health.” Interestingly in this case, the WHO was invited to present its expert opinions on the technical aspects of the case, namely the health effects of cigarette consumption and the impacts of the ban on the advertisement of cigarettes.928 Thailand—Cigarettes Panel consulted with officials of the WHO to this end. In developing its reasoning, the Panel examined a number of WHO Assembly Resolutions, the health measures recommended by the WHO in these resolutions, as well as the Report of the WHO Expert Committee on Smoking Control Strategies in Developing Countries.929 The Panel explicitly quoted some essential parts of the WHO Assembly Resolution in order to explain that demand for cigarettes, in particular the initial demand for cigarettes by the young, was influenced by cigarette advertisements and that bans on advertisement could therefore curb such demand.930After examining WHO’s submission, the Panel held: In agreement with the parties to the dispute and the expert from the WHO, the Panel accepted that smoking constituted a serious risk to human health and that consequently measures designed to reduce the consumption of cigarettes fell within the scope of Article XX(b). The Panel noted that this provision clearly allowed contracting parties to give priority to human health over trade liberalization [ . . . ].931 927  GATT Panel Report, Thailand—Cigarettes, para. 76. 928  Ibid., para. 50. 929  Ibid., paras. 78–80 930  Ibid., para. 78. 931  Ibid., para. 73.

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However, for a measure to be covered by Article XX(b) it had to be “necessary.” Thailand’s import restrictions could be considered “to be ‘necessary’ in terms of Article XX(b) only if there were no alternative measure consistent with the General Agreement, or less inconsistent with it, which Thailand could reasonably be expected to employ to achieve its health policy objectives.”932 Pointing out that discriminatory health measures were applied only to imported cigarettes, the Thailand—Cigarettes Panel concluded that the measures in dispute were not consistent with the GATT Agreement.933 It held that other GATTconsistent measures to fulfill Thailand’s health policy objective to control the quantity and quality of cigarettes were reasonably available to Thailand. It is worth noticing that Article 13 of the DSU stipulates the right to seek information, granting some discretion to WTO dispute settlement bodies. According to Article 13(2): Panels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. With respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group. This provision implicitly calls for institutional sensitivity towards other international regimes that have clear expertise on specific issues in the dispute presented to the DSB. 2.1.3 Tuna—Dolphin Tuna—Dolphin is the first case concerning the consistency of the Processes and Protection Methods (“PPMs”) in the context of environmental protection.934 Mexico claimed that a series of trade restrictive measures adopted by the U.S. were inconsistent with Article XI and were not justified by Article XX of the GATT. Specifically, they referred to the U.S.’s direct imposition of a ban on the importation of fish caught with “purse-seine nets” (a commercial fishing technology), as well as on the importation from intermediary countries which have not themselves acted to prohibit importation from countries using 932  Ibid., para. 75. 933  Here, the Panel stated: “Thailand’s practice of permitting the sale of domestic cigarettes while not permitting the importation of foreign cigarettes was an inconsistency with the General Agreement not ‘necessary’ within the meaning of Article XX(b).” Ibid., para. 81. 934  See generally, Christiane R. Conrad, Process and Production Methods (PPMS) in WTO Law: Interfacing Trade and Social Goals (Cambridge University Press, 2014).

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such technology. Moreover, Mexico pointed out that the CITES’ Appendix I list of species in danger of extinction did not include any of the dolphin species which the U.S. claimed to protect.935 The U.S. asserted that these prohibitions were adopted in accordance with Section 101(a)(2) of the US Marine Mammal Protection Act (“MMPA”) of 1972.936 This provision puts certain restrictions on the sale of fish (or products of fish) caught with commercial fishing technology which results in the incidental killing or serious injury of ocean mammals. It also claimed its measures are justified in the proper reading of Article XX(b) and (g) of the GATT. The Panel held that the U.S.’s measures in this case constituted a violation of Article XI, and continued to examine whether these measures were justifiable under the general exception clause of the GATT. In the Panel’s view, the U.S. measures were not “necessary” in light of sub-provision (b), because there was insufficient evidence that the U.S. “had exhausted all options reasonably available to it to pursue its dolphin protection objectives through measures consistent with the General Agreement, in particular through the negotiation of international cooperative arrangements, which would seem to be desirable in view of the fact that dolphins roam the waters of many states and the high seas.”937 With respect to the extra-jurisdictional application of sub-provisions (b) and (g), the Panel pointed out that both exceptions were to be limited to measures within the jurisdiction of the importing country,938 because otherwise, each contracting party could “unilaterally determine the conservation policies from which other contracting parties could not deviate without jeopardizing their rights under the General Agreement.”939 Moreover, this limitation on trade based on “unpredictable conditions” was not considered as being primarily “aimed at the conservation of dolphins” within the meaning of subprovision (g).940 In conclusion, the import bans imposed by the U.S. were in violation of the GATT. Although these Panel decisions were never adopted due

935  GATT Panel Report, Tuna—Dolphin I, para. 3.40. 936  In accordance with this provision, “the secretary of state shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States Standards.” GATT Panel Report, Tuna—Dolphin I, para. 2.5. 937  GATT Panel Report, Tuna—Dolphin I at para. 5.28. 938  Ibid., paras. 5.26, 5.27, 5.32. 939  Ibid., para. 5.32. 940  Ibid., para. 5.33.

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to the U.S. rejection, they still have some implications for understanding how to interpret relevant exception clauses concerning environmental protection.941 2.2 WTO Disputes Involving Environmental and Social Regulations WTO’s dispute settlement system is a central element in maintaining security and predictability of the multilateral trading system by resolving trade disputes. One of the recurring themes of dispute settlement under the WTO today is the relationship between the rules of trade liberalization and policies aimed at promoting non-trade objectives. Scholars and practitioners have debated whether and to what extent social values other than trade liberalization— including environmental protection, public health, and human rights can be accommodated and reflected in adjudicative practices.942 While the early GATT Panels only considered the relevance of non-trade concerns originating from a number of “domestic” legislations, the DSB in post-Uruguay Round has had opportunities to examine the relevance of the provisions contained in other “international” treaties. In the relevant disputes, the WTO DSB examined whether the trade-restrictive measures allegedly designed to protect non-trade policies could be justified pursuant to the “General Exceptions” clause of the WTO Agreement. In recognition of WTO Member’s right to implement domestic regulations, many of the WTO Covered Agreements have exceptions clauses, which allow trade-restrictive measures in circumstances that are thought to be necessary to achieve that state’s legitimate policy objectives. Among others, the environmental concern is the most frequently examined non-trade issues considered by the Panel and the Appellate Body. 2.2.1 Relationship with Public International Law in General WTO Panel and the Appellate Body have shown some interests in interpreting rules of the WTO Agreements against the backdrop of the broader international legal context. The beginning of this trend can be found in the Appellate Body’s report in the US-Gasoline case.943

941  On the impact of Tuna Dolphin reports on the subsequent cases concerning trade and environment. David Driesen, What is Free Trade? The Real Issue Lurking Behind the Trade and Environment Debate, 41 Va J. Int’l L. 279, 306 (2001). 942  See Susan L Karamanian, The relationship between international trade law and international human rights law in Hierarchy in international law: the place of human rights (Erika de Wet & Jure Vidmar eds., Oxford University Press, 2012). 943  WTO AB Report, US—Gasoline.

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As for the proper reading of Article XX (g) of the GATT 1994, it pointed out that the Panel Report failed to apply the basic interpretative principles prescribed in Article 31 of the VCLT. Interestingly, the Appellate Body found its basis of making this reference in Article 3(2) of the DSU. This provision reads: The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.944 In consideration with this interpretative guideline offered by the DSU, the Appellate Body famously held that the WTO Agreement is “not to be read in clinical isolation from public international law.”945 2.2.2 Environmental Protection and Sanitary Regulation It has been a common understanding that the WTO rules should be applied and interpreted against the backdrop of general international law. In this light, the WTO DSB occasionally made reference to the external treaties and conventions on the basis of VCLT Article 31(3)(c). However, Article 31(3)(c) has been applied in a fairly restrictive manner. It was not until Shrimp—Turtle946 that the WTO DSB made an explicit reference to Article 31(3)(c), and on that basis, it explored a number of non-WTO rules to facilitate the interpretation of WTO treaty provisions. The Appellate Body’s decision in Shrimp—Turtle showed how other relevant rules of international law could influence the meaning of rights and obligations of the Members. One prominent scholar considered this decision, “a constitutional door opener for approaches that require a broader 944  WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994) [“DSU”]. 945  WTO AB Report, US—Gasoline, para. 621. 946  WTO AB Report, United States—Import Prohibition of Shrimp and Shrimp Products, WT/ DS58/AB/R (Oct. 12, 1998)[“Shrimp—Turtle”]; see generally, Petros C. Mavroidis, Trade and Environment after the Shrimp-Turtle Litigation, 34 J. World Trade 73 (2000); Robert Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, 27 Colum. J. of Env. L. 489 (2002).

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perspective than just the four corners of the very extensive GATT/WTO treaty language.”947 The Shrimp—Turtle case was brought by India, Malaysia, Pakistan and Thailand against the United States; this case was concerned with U.S. import restrictions on certain species of shrimp and shrimp products harvested with commercial fishing technology that could adversely affect the lives of sea turtles. In order to protect some species of sea turtles, the U.S. legislated domestic regulations to require shrimpers to be equipped with a Turtle Excluder Device (“TED”). This legislation concerning turtle conservation further prohibits the importation of shrimp harvested without the use of a device comparable to that of the U.S.: according to Section 609 of relevant U.S. legislation, “importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited.”948 The claimants argued that this ban on shrimp and shrimp products constituted quantitative restrictions inconsistent with Articles XI and XIII(1), and was not justified under Article XX of the GATT.949 The U.S. measure was a set of unilateral trade measures that directly or indirectly sanctioned other countries’ failure to meet internationally recognized environmental standards. In its defense, the U.S. claimed that such measures were justified under Articles XX(b) or XX(g) of the GATT. They were “necessary” for the protection of “animal life” and “related to” the “conservation of exhaustible natural resources”. Subsequent to the Panel’s decision, the U.S. appealed against this finding that the disputed measure was not permitted under Article XX.950 The Appellate Body in Shrimp—Turtle found errors of law in the Panel’s decision, and remanded the case to the original panel to render a decision, in light of its clarification. To be more specific, the Appellate Body held that the U.S.’s import ban on shrimp from any country that did not have a turtle conservation device used in the U.S. was within the scope of Article XX(g), for conservation of exhaustible natural resources. 947  John H. Jackson, Justice Feliciano and the WTO Environmental Cases: Laying the Foundations of a ‘Constitutional Jurisprudence’ with Implications for Developing Countries in Law in the Science of Human Dignity 40 (Steve Charnovitz, Debra P. Steger & Peter van den Bossche eds., Cambridge University Press, 2005). 948  Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1990, Public Law 101–162, § 609 (codified at Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1537 (1994). 949  WTO Panel Report, Shrimp—Turtle, para. 3.1 950  WTO AB Report, Shrimp—Turtle, para. 98.

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In the course of interpreting Article XX(g), the Appellate Body sought “additional interpretative guidance.”951 It found its basis of reasoning in Article 31(3)(c) of the VCLT:952 any relevant rules of international law applicable in the relations between the parties shall be considered together with the context. Interestingly, the Appellate Body made a direct reference to external treaties to interpret the term “exhaustible natural resources” within the meaning of GATT Article XX(g). In its view, taking these instruments into account can “add colour, texture and shading to our interpretation of the Agreements annexed to the WTO Agreement.”953 In order to determine what constituted “exhaustible natural resources”, the Appellate Body examined the relevant provisions in the 1982 UNCLOS,954 the 1992 Convention on Biological Diversity (“CBD”),955 the Convention on International Trade in Endangered Species of Wild fauna and Flora (“CITES”),956 and the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (the “Bonn Convention” or the “CMS”).957 It was held that a sufficient degree of agreement exists on the usage of the terms.958 Even though not all states parties to the dispute were party to these conventions,959 the Appellate Body still found a relevance of these international agreements for the interpretation of the term “exhaustible natural resources.” Nevertheless, this expansive view of the term “parties” contained in Article 31(3)(c) was rejected by some of the subsequent WTO DSB rulings. The Appellate Body in Shrimp—Turtle also asserted that its task in interpreting the chapeau of Article XX was to examine whether the disputed measures were “applied reasonably, with due regard both the legal duties of the party claiming the exception and the legal rights of the other parties concerned.” According to the Appellate Body, 951  Ibid., para. 158. 952  WTO AB Report, Shrimp—Turtle, para. 158. 953  WTO AB Report, Shrimp—Turtle at para. 153. 954  To determine the meaning of “natural resources”, the Appellate Body referred to Article 56 of the UNCLOS. 955  The Appellate Body looked into this Convention to define the meaning of the “natural resources”. 956  To decide whether the Sea turtles were “exhaustible”, the Appellate Body pointed out that the seven species of sea turtles were recognized as endangered species in Appendix 1 of the CITES. 957  The AB Report in this case made references to the Final Act of the Conference to Conclude a Convention on the Conservation of Migratory Species of Wild Animals. 958  WTO AB Report, Shrimp—Turtle, paras. 127–134. 959  Ibid., para. 130.

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[t]he task of interpreting and applying the chapeau is, hence, essentially the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an exception under Article XX and the rights of the other Members under varying substantive provisions. . . . The location of the line of equilibrium, as expressed in the chapeau, is not fixed and unchanging; the line moves as the kind and the shape of the measures at stake vary and as the facts making up specific cases differ.960 This line of argument seems to imply that the WTO DSB is concerned with finding a proper balance between competing rights and interests. As some commentators highlight, the Appellate Body in this case, acknowledged that it needed to “engage in an exercise of balancing competing interests in order to assess whether a measure can be justified on the basis of general exceptions.”961 The Shrimp—Turtle case has been widely referred as justifying the incorporation of human rights concerns in the adjudication of WTO disputes.962 On these lines, some scholars are of the view that the Shrimp—Turtle case “confirmed that import restrictions may be justifiable under WTO law for protecting human rights values.”963 However, This incorporation would wrongly allow WTO Panels and the Appellate Body to determine the contents and scope of human rights norms which would, in effect, undermine the proper normative development of an international human rights regime. Many scholars also find the bold approach problematic.964 The WTO Panel in EC—Biotech Products965 interpreted the disputed terms of WTO Agreements in light of Article 31(3)(c). The Panel was asked to 960  WTO AB Report, Shrimp—Turtle, para. 159. 961  Venzke (2011), at 1129; see also, Joel P. Trachtman, The Domain of WTO Dispute Resolution, 40 Harvard International Law Journal 333 (1999); Alec Stone Sweet and Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transna’l L. 72, 154– 155 (2009). 962  Ernst-Ulrich Petersmann, Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, 13 Eur. J. Int’l L. 621 (2002). 963  Ibid., at 645. 964  Robert Howse, Human Rights in the WTO, Whose Rights, What Humanity? Comment on Petersmann, 13 Eur. J. Int’l L. 651, 656 (2002); see also, Philip Alston, Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann, 13 Eur. J. Int’l L. 815 (2002). 965  WTO Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291,292,293/R (Sept. 29, 2006)[“EC—Biotech Products”].

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determine whether the EC’s regulatory approach to genetically modified organisms (“GMOs”) based on the precautionary principle is permitted under the Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”). According to the EC’s claim, the 1992 Convention on Biological Diversity and the 2000 Cartagena Biosafety Protocol could aid the interpretation of Article 5.7 of the SPS Agreement, determining the rights and obligations of the parties under the WTO regime. These external, non-WTO instruments deal with the international trade in GMOs and the risks associated with biological diversity. The EC argued that the Panel was required to consider these legal arrangements as relevant and take them into consideration to interpret the WTO treaty provision. The EC—Biotech Products Panel recognized the relevance of Article 31(3)(c) in treaty interpretation, stating: [ . . . ] it is important to note that Article 31(3)(c) mandates a treaty interpreter to take into account other rules of international law; it does not merely give a treaty interpreter the option of doing so. It is true that the obligation to “take account” of such rules, and thus no particular outcome is prescribed. However, Article 31(1) makes clears that a treaty is to be interpreted “in good faith”. Thus, where consideration of all other interpretative elements set out in Article 31 results in more than one permissible interpretation, a treaty interpreter following the instructions of Article 31(3)(c) in good faith would in our view need to settle for that interpretation which is more in accord with other applicable rules of international law.966 The Panel also highlighted the function of this sub-provision (c) in avoiding conflicts of rules and promoting coherent development of international law: “requiring that a treaty be interpreted in the light of other rules of international law which bind the States parties to the treaty ensures or enhances the consistency of the rules of international law applicable to these states and thus contributes to avoiding conflicts between the relevant rules.”967 Interestingly, not only the Panel, but also all parties to the dispute, were of the view that the WTO agreement should be interpreted in the light of other rules of international law.968

966  WTO Panel Report, EC—Biotech Products, para. 7.69. 967  Ibid., para. 7.70. 968  Ibid., para. 7.72.

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However, the Panel adopted a narrow interpretation of this provision in contrast with the previous decision in Shrimp—Turtle.969 Regarding the term “parties” contained in Article 31(3)(c), the Panel in EC—Biotech Products interpreted it in a restrictive manner, as held in the Tuna—Dolphin decision rendered by the previous GATT Panel.970 The EC—Biotech Products Panel observed: This understanding of the term ‘the parties’ leads logically to the view that the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members.971 The Panel ultimately declined to consider the non-WTO treaty, because all parties to the interpreted treaty must also be the parties to the treaty being referred to. The Appellate Body in the case of EC–Chicken Classification also deals with the operation of Article 31(3)(c) in actual WTO dispute. This case, brought by Brazil and Thailand, mainly questioned the EC’s classification of frozen boneless salted chicken cuts for the purpose of imposing tariffs. Among various legal issues contained in the dispute, parties had discordant views as to what constituted the context for interpreting the term “salted” contained in the 02.10 of the EC Schedule. Brazil claimed that the Harmonized System constituted the context within the meaning of Article 31(2)(b), whereas from Thailand's perspective, the same instrument qualified as the context under Article 31(1) or 31(3)(c). The EC argued that this instrument constitutes the “relevant rules of international law” within the meaning of Article 31(3)(c). According to the examination of the EC-Chicken Classification Appellate Body, while the Panel in this case held the position “as if it qualifies as ‘context’ under Article 31(2),” the Panel did not give a final answer concerning which opinion is the correct 969  For more analysis of this case, see Robert Howse & Henrik Horn, European Communities— Measures Affecting the Approval and Marketing of Biotech Products, 8 World Trade Rev. 49 (2009). 970  In Tuna—Dolphin, the GATT Panel report agreed that the GATT Contracting parties broadly recognized the principle of sustainable development in the area of international environmental law. However, in its view, these external practices under the bilateral and multilateral treaties concerning the environment protection “should not be taken as practice under the law administered under the GATT regime and therefore could not affect the interpretation of it.” United States—Restrictions on imports of tuna, GATT Panel Report, June 1994, 33 I.L.M. 1994 839 [“Tuna—Dolphin”], para. 5.19. 971  WTO Panel Report, EC—Biotech Products, para. 7.68.

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interpretation under the WTO Agreement.972 The Appellate Body held its decision ambiguously: We do not find it necessary to determine whether the Harmonized system could constitute a ‘relevant rule of international law’, within the meaning of Article 31(3)(c) of the Vienna Convention.973 On this matter, it simply found that a broad consensus exists among the parties, to use the Harmonized System as the basis for their WTO schedules. 2.2.3 Public Health The normative importance of the Brazil—Patent974 dispute might be of little value because the case was ultimately dropped when the U.S. and Brazil (the parties to the dispute) agreed that the U.S. would withdraw its complaint against Brazil. Nevertheless, the factual background of this case describes one of the ways in which human rights can be addressed in the setting of the WTO DSB. It also shows how an ongoing dispute involving incidents of public health crisis can shape and prompt subsequent actions taken within the WTO circle. In May 2000, the U.S. requested consultations with Brazil, concerning the local working requirements under the Industrial Property law of Brazil adopted in 1996. Local working requirements typically require patent holders to manufacture the patented product, or apply the patented process within the country granting the patent rights, in order to maintain its exclusive rights. For instance, under Article 5 of the Paris Convention for the Protection of Industrial Property, a failure to meet this requirement is considered an abuse of the exclusive rights attached to the patent, and allows the government of the patent-granting country to issue a compulsory license for the patent to a local producer.975 In 2001, the U.S. filed a suit against Brazil for its local working requirements. More specifically, in accordance with Article 67 of Brazil’s Industrial Property law, a patent may be subject to a compulsory licence, if the subject matter of 972  WTO AB Report, EC-Chicken Classification, para. 194. 973  Ibid., para. 384. 974  Request for the Establishment of a Panel by the United States, Brazil—Measures Affecting Patent Protection, WT/DS199/3 (Jan. 9, 2001)[“Brazil-Patent”]; see Paul Champ and Amir Attaran, Patent Rights and Local Working under the WTO TRIPS Agreement: An Analysis of the U.S.-Brazil Patent Dispute, 27 Yale J. Int’l Law 365 (2002). 975  Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, revised Jul. 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305.

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the patent is not manufactured in the territory of Brazil within three years of the issuance of the patent. This provision allows for a compulsory licence when patents are not in use locally. The U.S. argued that this local working requirement was inconsistent with Articles 27 and 28 of the TRIPS Agreement, and Article III of the GATT 1994. While the U.S. did not directly challenge Brazil’s public health policies, the disputed domestic legislation was made against the backdrop of a major public health crisis in Brazil. The WTO consistency of Brazil’s measures remained unanswered, because the case was ultimately withdrawn. Nevertheless, the case brought much attention to public health issues in the global trade system. There was also a growing recognition of the right of the state for effective use of compulsory licensing, in order to deal with major public health emergency. 2.2.4 Public Morals The “public morals” clause is one of the general exceptions to Members’ obligation of trade liberalization; WTO Members have a right to deviate from existing trade commitments if trade-restrictive measures in question were necessary to protect public morals. Several WTO cases examined the legality of traderestrictive measures allegedly adopted to protect public morals, within the meaning of the exception clause. In these cases, WTO Panel and the Appellate Body had opportunities to deal with the complex relationship between trade rules and various social regulations with respect to domestic control of gambling, cultural publications, and seal products. 2.2.4.1 U.S.—Gambling

The U.S.—Gambling976 is the first WTO dispute to explicitly invoke the public morals clause; here, the WTO DSB also assessed the public morals exception for the first time.977 In 2003, Antiqua and Barbuda brought this suit against the U.S. to challenge relevant state and federal laws of the U.S., which were designed to regulate the supply of cross-border Internet gambling services. Antiqua and Barbuda claimed that these laws led to a prohibition of its supply of gambling services, in breach of GATS obligations. U.S. sought to justify its domestic regulations under the public morals exception clause of GATS Article XIV(a), argu976  WTO Panel Report, U.S.—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R (Nov. 10, 2004); WTO AB Report, U.S.—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (Apr. 7, 2005)[“US—Gambling”]. 977  See also, Shi (2013), at 177.

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ing that these policies were necessary to protect public morals from threats posed by gambling services. In its view, the services can easily be exploited by “organized crime, money laundering, fraud and other criminal activities” due to low costs and geographical flexibility,978 and in consideration with “the scope of availability of remotely supplied gambling, including its availability to children and the particular health risks associated with gambling by remote supply,” its measures were justified. The U.S.—Gambling Panel began with defining the concept of public morals, stating The term ‘public morals’ denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.979 A WTO Member has the freedom to determine its “standards of right and wrong conduct,” as varying in “time and space, depending upon a range of factors, including prevailing social, cultural, ethical and religious values.”980 Nevertheless, in determining whether the gambling services fell within the scope of public morals, the Panel found it necessary to examine a variety of relevant international and domestic understandings such as rulings of the ECJ, foreign practices, and international agreements concerning gambling control, as well as relevant historical discussions. The Panel concluded that gambling was an issue of public morality; in theory, restrictions on gambling could fall within the meaning of the GATS public morals exception.981 The Panel then questioned whether U.S. measures in this particular case were directed at protecting public morals, satisfying the requirements of the GATS general exceptions clause. It applied the “weighing and balancing test” established by the Appellate Body Report in Korea—Various Measures on Beef in the context of interpreting GATT Article XX.982 In the view of the U.S.— Gambling Panel, the following conditions were met to determine whether the measures in question were “necessary” to protect public morals or maintain public order.

978  WTO Panel Report, US—Gambling, paras. 3.189–192, 3.279–.281, 6.506–507. 979  WTO Panel Report, US—Gambling, para. 6.465. 980  Ibid., para. 6.461. 981  Ibid., para. 6.474. 982  WTO AB Report, Korea—Measures Affecting Imports of Fresh, Chilled, and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (Jan. 10, 2001), paras. 162–164.

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(a) the importance of interests or values that the challenged measure is intended to protect. (With respect to this requirement, the Appellate Body has suggested that, if the value or interest pursued is considered important, it is more likely that the measure is “necessary”.) (b) the extent to which the challenged measure contributes to the realization of the end pursued by that measure. (In relation to this requirement, the Appellate Body has suggested that the greater the extent to which the measure contributes to the end pursued, the more likely that the measure is “necessary”.) (c) the trade impact of the challenged measure. (With regard to this requirement, the Appellate Body has said that, if the measure has a relatively slight trade impact, the more likely that the measure is “necessary”. The Appellate Body has also indicated that whether a reasonably available WTO-consistent alternative measure exists must be taken into consideration in applying this requirement.983 The Panel acknowledged that the interests the U.S. sought to preserve were highly important, and that the measures under scrutiny made a substantial contribution to the stated goal. However, the measures failed to fulfill other requirements of this test. The Appellate Body overturned the Panel’s holding in part, in particular, ruling that the Panel erred in its application of the necessity test. For example, the Appellate Body found U.S. trade-restrictive measures necessary to protect its stated purposes. Nevertheless, the U.S. failed to show that its restrictive measures did not discriminate against foreign gambling service providers. 2.2.4.2 China—Audiovisual

Appellate Body’s ruling in U.S.—Gambling was affirmed by the 2009 Panel Report in China—Audiovisual.984 The China—Audiovisual case provided the first occasion for the WTO DSB to interpret the meaning and the scope of the public morals exception under GATT Article XX(a). This case was also closely associated with a complex relationship between the freedom of speech and the promotion of free trade.985 U.S. brought a suit against China, claim983  WTO Panel Report, US—Gambling, para. 6.477. 984  WTO Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009)[“China—Audiovisual”], para. 7.759. 985  See generally, Joost Pauwelyn, Case Note, Squaring Free Trade in Culture with Chinese Censorship: The WTO Appellate Body Report on China—Audiovisuals, 11 Melbourne J. Int’l L. 119 (2010); Jingxia Shi, Free Trade and Cultural Diversity in International Law 168–175

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ing that certain Chinese measures were incompatible with a number of WTO provisions: paragraphs 5.1 and 5.2 of the Accession Protocol, Articles XVI and XVII of the GATS, with respect to the distribution and publication of cultural products, and Article III(4) of the GATT 1994, regarding the importation of publications into China.986 In its defense, China invoked the public morals exception of GATT Article XX(a) to justify a set of national measures that regulated the import of foreign publications, audiovisuals and other media forms including audiovisual home entertainment products, sound recordings, and films for theatrical release. The disputed measures were to prevent the “dissemination of unauthorized and inappropriate contents” within China.987 China argued that these regulations were designed to protect public morals in China, by reviewing the content of certain foreign cultural products that could have a negative impact on public morals and the cultural value in Chinese society. To support its argument, China invoked the UNESCO Declaration; China sought to establish a “general proposition” that the importation and distribution of products of the type at issue could, “depending on their content,” have a negative impact on public morals. Its right to regulate trade in goods and services should be interpreted, consistent with its legitimate policy objectives in the cultural sector. The Panel concluded that the Chinese measures in question were not justified under GATT Article XX(a).988 In its view, China failed to show the necessity of its measures for the stated purpose of protecting public morals: China’s measures were not necessary restrictions of the right to trade “when weighing and balancing” the interests involved in these measures, and their “restrictive impact” on trade.989 The Panel also concluded that China had not demonstrated the issues concerning any reasonably available alternative measure.990 The Appellate Body upheld the Panel’s holdings.991

(Hart Publishing, 2013); Julia Ya Qin, Pushing the Limits of Global Governance: Trading Rights, Censorship and WTO Jurisprudence—A Commentary on the China—Publications Case, 10 Chinese J. Int’l L. 271 (2011). 986  On the U.S.’s claims, WTO Panel Report, China—Audiovisual, paras. 2.1–2.2. 987  WTO Panel Report, China—Audiovisual, para. 7.804. 988  Ibid., para. 7.911 989  WTO Panel Report, China—Audiovisual, para. 7.849 (on discretion provisions); 7.863 (on exclusion provisions); 7.868 (on exclusions relating to foreign-invested enterprises). 990  Ibid., para. 7.908. 991  WTO AB Report, China—Audiovisual, WT/DS363/AB/R (Dec. 21, 2009), para. 415.

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2.2.4.3

EC—Seal Products

Most recently, in 2013 and 2014, the interpretative problem of the public morals exception was again presented to the WTO DSB.992 The European Communities—Measures Prohibiting the Importation and Marketing of Seal Products (“EC—Seal Products”)993 case arose from complaints brought by Canada and Norway to challenge the so-called “EU Seal Regime”, a legislative scheme to prohibit the trading of seal products. This EU Seal Regime is directed at prohibiting the trade of seal products, with certain exceptions. Seal products trading in the market is permitted, if those products are: (i) derived from hunts carried out by Inuit or other indigenous communities (the so-called “IC exception”), (ii) derived from hunts that were conducted for the purpose of marine resource management, or (iii) personally imported by travellers. In assessing the WTO consistency of the EU Seal Regime, both the WTO Panel and the AB examined the policy objectives of this regime. One important objective of the EU Seal Regime was to protect seal welfare, by eliminating cruel and inhumane practices of seal harvesting. In fact, the EU Seal Regime was designed to pursue a number of policy goals, which were not limited to the protection of animal welfare. Supposedly, the interests of protecting indigenous communities, as contained in the IC exception, can be invoked as constituting one of the legitimate objectives in the public morals exception. Indeed, the EU argued before the Appellate Body that [ . . . ] EU legislators considered that the subsistence of Inuit and other indigenous communities and the preservation of their cultural identity “provide benefits to humans which, from a moral point of view, outweigh the risk of suffering inflicted upon seals as a result of the hunts conducted by those communities”994 In this way, the EU observed that its concerns for the economic, social, and cultural interests of the indigenous community were reflected in the objective of the Seal Regime in dispute. To strengthen its argument, the EU not only 992  See generally, Robert L. Howse & Joanna Langille, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Permit Trade Restrictions Justified by Non-instrumental Moral Values, 37 Yale J. Int’l L. 379 (2012). 993  WTO Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products [“EC—Seal Products”], WTO Docs WT/DS400/R, WT/DS401R, Nov. 25, 2013; WTO AB Report, EC—Seal Products, WT/DS400/AB/R, WT/DS401/AB/R, May 22, 2014. 994  WTO AB Report, EC—Seal Products, para. 5.143.

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analyzed the preamble of relevant instruments, but also pointed to several international instruments concerning the protection of indigenous communities; in addition, the protection of the economic and social interests of indigenous communities was recognized at the international level as illustrated, for example, in the United Nations Declaration on the Rights of Indigenous Peoples and in the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries.995 However, according to the Appellate Body’s reading of the Panel’s holding, Although the Panel recognized that a measure may have several objectives, it was not convinced—after reviewing the text, legislative history, and structure and design of the measure—that the “aim”, “target”, or “goal” was to protect the interests reflected in the exceptions to the EU Seal Regime. Rather, the Panel found that “the principal objective of adopting a regulation on trade in seal products was to address public concerns on seal welfare.” The Appellate Body accepted the Panel’s narrow understanding of the EU Seal Regime’s objective; the main or principal goal of the regime was the public’s concern for seal welfare.996 Both the Panel and the Appellate Body in EC— Seal Products framed the public morals exception in terms of animal welfare, and avoided a direct examination of possible moral implications for the indigenous community. The Appellate Body upheld the Panel’s finding that the EU Seal Regime was necessary to protect public morals, within the scope of Article XX(a). However, it reversed the Panel’s findings under the chapeau of GATT Article XX. It is a well-established jurisprudence that in order to justify trade-restrictive measures under Article XX of the GATT, a two-tiered test must be satisfied: the measures in question must be provisionally justified under one of the subparagraphs of Article XX (e.g. public morals and prison labors), and then assessed under its chapeau. In view of the Appellate Body, the EU failed to demonstrate that the “EU Seal Regime, in particular with respect to the IC exception,” was “designed and applied in a manner” that met the requirements of the chapeau. It held: We have identified several features of the EU Seal Regime that indicate that the regime is applied in a manner that constitutes a means of 995  WTO Panel Report, EC—Seal Products, para. 7.292. 996  WTO AB Report, EC—Seal Products, para. 5.167.

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arbitrary or unjustifiable discrimination between countries where the same conditions prevail, in particular with respect to the IC exception. First, we found that the European Union did not show that the manner in which the EU Seal Regime treats seal products derived from IC hunts as compared to seal products derived from “commercial” hunts can be reconciled with the objective of addressing EU public moral concerns regarding seal welfare. Second, we found considerable ambiguity in the “subsistence” and “partial use” criteria of the IC exception. [ . . . ] We did not consider that the European Union has sufficiently explained how such instances can be prevented in the application of the IC exception.997 The Appellate Body concluded that the EU Seal Regime was not justified under Article XX of the GATT. 2.2.5 Freedom of Expression Some WTO cases show how freedom of expression or free speech may interact with the norms of trade liberalization in the fields of goods and services.998 One of the likely pathways for freedom of expression to enter the ambit of trade policymaking would be disputes involving cultural products.999 This way is a more defensive use of free speech, justifying certain trade-restrictive measures taken to protect essential cultural products. Another interface between freedom of expression and trade can be found in the context of governmental censorship over commercial speech. The China—Audiovisual case presented an overlap between WTO trade obligations and enjoyment of human rights with respect to free speech. The measures adopted by China (i.e., contents-based censorship involving in the import and distribution of films, audiovisual entertainment products, sound recordings and certain publications) posed both trade restrictions and constraints on the freedom of speech. As a consequence, foreign corporations were not able to import and distribute certain audiovisual products and publications. However, both the Claimant to the dispute and the WTO DSB sought to circumvent a controversial debate of the politically sensitive censorship. 997  WTO AB Report, EC—Seal Products, para. 5.338. 998  John H. Jackson, Reflections on the Possible Research Agenda for Exploring the Relationship between Human Rights Norms and International Trade Rules in International Trade and Human Rights: Foundations and Conceptual Issues 26 (Frederick M. Abbott, Christine Breining-Kaufmann & Thomas Cottier eds., The University of Michigan Press, 2006). 999  See generally for studies on cultural products in the WTO setting. Tania Boon, Cultural Products and the World Trade Organization (Cambridge University Press, 2011); Shi (2013).

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As noted by some scholars, the WTO did not rule on the “legality of Chinese censorship per se.” Instead, the WTO Panel and the Appellate Body primarily examined “the way the censorship was administered.”1000 In the ruling of China—Audiovisual, the Panel noted: The United States does not specifically argue that the measures at issue are not measures to protect public morals. The United States is challenging the means China has chosen to achieve its objective of protecting public morals. More particularly, the United States argues that it is not “necessary” within the meaning of Article XX(a) for importers to perform content review. According to the United States, content review is independent of importation and can be performed by individuals or entities unrelated to the importation process.1001 The U.S. did not challenge Chinese review process or the wide-ranging censorship practice. Instead, its claim was limited to challenging necessity of the trade-restrictive measure—content-based review with respect to imports and distribution of audiovisual products. The DSB in this case was not interested to ask whether such censorship was incompatible with certain human rights standards, and whether the proper enforcement of trade regulation in this case would positively affect the promotion of freedom of speech. Nevertheless, in light of the Panel’s holding, China should adopt a censorship mechanism that is “more suitable for a privatized trading regime.”1002 The China—Google incident is also a useful illustration of the encounters between trade and free speech in the context of internet censorship; China has put significant restrictions on the domestic internet services operated by Google. On the one hand, Chinese online censorship in this case may constitute possible violation of WTO GATS rules. Internet provides important business opportunities in service trade. This censorship regime may be incompatible with the WTO rules of trade liberalization, and undermines the competitiveness of the market. On the other hand, this scheme may violate the freedom of speech as expressed in the UDHR and the ICCPR.1003 In this regard, several 1000  Thomas Broude & Holger Hestermeyer, The First Condition of Progress? Freedom of Speech and the Limits of International Trade Law, International Law Forum, The Hebrew University of Jerusalem Faculty of Law, Research Paper No. 05–13 (May 2013), at 23. 1001  W TO Panel Report, China—Audiovisual, para. 7.756. 1002  Qin (2011), at 320. 1003  U DHR Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart

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scholars have examined the implications of this incident for future WTO cases involving the complex relationship between trade and human rights.1004 Due to China’s cyber-attacks involving retrieval of private information from Google’s database in 2010, Google announced that it was unable to provide online security and its rapid decrease in terms of commercial presence well as loss in foreign competition. This was after moving its operations to Hong Kong, due to the so-called “Great Firewall” blocking or slowing down foreign internet sites, prohibiting access to selected foreign materials.1005 In 2011, in accordance with paragraph 4 of GATS Article III,1006 the U.S. filed a request for information at the WTO on website blocking policies of China, submitting a list of questions to gain a “fuller understanding of the legal and policy rules relevant to the accessibility of commercial websites in China.”1007 As the request for information is arguably the preliminary step in a potential WTO dispute, it is not unlikely that the U.S.’s complaint can be brought against Chinese measures of internet censorship. 3 Environmental and Social Protection in the Investor–State Arbitration There are multiple channels in which human rights issues may arise in the context of investment arbitral tribunals. However, the current investment law regime has been criticized for being reluctant to consider human rights information and ideas through any media and regardless of frontiers; ICCPR Article 19(1), (2): 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 1004  Sarah Joseph, Trade Law and Investment Law in Oxford Handbook of International Human Rights Law 856 (Dinah Shelton ed., Oxford University Press, 2013); Brian Hindley & Hosuk Lee-Makiyama, Protectionism Online: Internet Censorship and International Trade Law, ECIPE Working Paper 12/2009, p. 8 (available at http://www.ecipe.org/publica tions/protectionism-online-internet-censorship-and-international-trade-law/); Broude & Hestermeyer (2013), at 23. 1005  Peter Scheer (First Amendment Coalition), Obama Should Back up Google with More than Rhetoric: the US Should Challenge China’s “Firewall” before the WTO, Huffington Post, Jan. 16, 2010 (available at http://www.huffingtonpost.com/peter-scheer/obama-shouldback-up-goog_b_425724.html). 1006  W TO GATS Article III, Paragraph 4: each Member shall respond promptly to all requests by any other Member for specific information on any of its measures. 1007   Office of the United States Trade Representative, United States Seeks Detailed Information on China’s Internet Restrictions, Press Releases, October 2011, available at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2011/october/unitedstates-seeks-detailed-information-china’s-i.

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concerns and public interests.1008 Some commentators have described the separation of human rights and investment under the current system of investment arbitration as being like “oil and water.”1009 The separation is not just the case in human rights—investment. Arbitrators have shown a general reluctance to address the existence of regime conflict, and to recognize the relevance of non-investment and external norms to the cases before them.1010 3.1 Claims of Foreign Investors The first avenue for making a human rights reference is found in the claims of foreign investors; foreign investors can invoke international human rights by claiming that certain legislation and measures of the host states are inconsistent with their binding commitments under human rights treaties, and hence, this violates the rights of investors. Investor claimants may raise their own human rights claims based on the right to property. A number of human rights treaties prescribe the right to property—ICESCR as a general matter, and Articles 15(2) and 16(1)(h) of the CEDAW in a gender equality context.1011 However, foreign investors rarely invoke human rights provisions concerning the right to property because human rights treaties supposedly provide a lower level of protection, as compared to investment treaties. Moreover, most of the claimants are juridical 1008  Investment arbitration system is often characterized by its critics as the “businessman’s court.” Gus Van Harten, Investment Treaty Arbitration and Public Law 152 (Oxford University Press 2007); see generally, The Backlash against Investment Arbitration: Perception and Reality (Michael Waibel, Asha Kaushal, Kyo-Hwa Chung & Claire Balchin eds., Kluwer Law International, 2010). 1009  Mehmet Toral and Thomas Schultz, The State, a Perpetual Respondent in Investment Arbitration? Some Unorthodox Considerations, in The Backlash against Investment Arbitration: Perception and Reality 577 (Michael Waibel, Asha Kaushal, Kyo-Hwa Chung & Claire Balchin eds., Kluwer Law International, 2010). 1010  See Moshe Hirsch, Conflicting Obligations in International Investment Law: Investment Tribunals’ Perspective, in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity 323–343 (Yuval Shany & Tomer Broude eds Hart Publishing, 2008); Anne van Aaken, Fragmentation of International Law: The Case of International Investment Protection, 17 Finnish Y.B. Int’l L. 91, 91–130 (2008); such reluctance may not come as total surprise as many international law scholars observed that international tribunals in general were reluctant to confront the problem of normative conflicts. In this light, McNair noted “so far, it is believed, no international tribunal has been directly compelled to pass upon the question of the effect of conflicts or incompatibility upon the validity of a treaty.” McNair (1961), at 214. 1011  These CEDAW provisions require equal treatment of women and men in respect of ownership of property with regard to family and marriage.

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persons and not natural human persons; except that, under the framework of the ECHR, the right to property is not provided to juridical persons.1012 Hence, the infrequent invocation of human rights in the context of rights to property comes as no surprise. On some other occasions, foreign investors may also raise claims of human rights violations based on their right to fair trial, which, as expressed in the ICCPR, is unfair treatment. 3.1.1 Arbitrary Arrest, Detention and Deportation In the case of Biloune v. Ghana,1013 Biloune was a Syrian investor who held a major equity interest in Marine Drive Complex Ltd. (“MDCL”), a corporation incorporated in Ghana. In 1986, the MDCL formed a joint venture with the Ghanaian governmental agency for the construction of a hotel resort complex in Accra, Ghana. The project was subsequently approved by the Ghana Investments Centre (“GIC”), a state entity in charge of regulating various matters of foreign investments in Ghana. However, after substantial completion of the building project, the Accra City Council issued an order to stop the construction project, due to the lack of a building permit. The Council then then demolished considerable parts of the project. Mr. Biloune and other involved investors were subjected to financial scrutiny by the government authorities, and held in custody for thirteen days without charge. They were subsequently deported to Togo. Pursuant to the arbitration clause in the investment agreement, the Claimants commenced the proceedings under the UNCITRAL process. The Claimants sought redress for alleged violations of human rights, along with other investment claims against the host state. In particular, the Claimants asserted that the government’s arbitrary detention and deportation constituted “an actionable human rights violation.”1014 On this particular claim of seeking compensation for human rights violation, the Biloune tribunal held

1012  First Protocol to the ECHR Article 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. (emphasis added). 1013  Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana (UNCITRAL), Award on Jurisdiction and Liability, 95 ILR 184, Oct. 27, 1989 [“Biloune v. Ghana”]. 1014  Biloune v. Ghana, para. 203.

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that it lacked jurisdiction to examine allegations of human rights violations, stating: This Tribunal’s competence is limited to commercial disputes arising under a contract entered into in the context of Ghana’s Investment Code. As noted, the Government agreed to arbitration only disputes ‘in respect of’ the foreign investment. Thus, other matters—however compelling the claim or wrongful the alleged act—are outside this Tribunal’s jurisdiction. Under the facts of this case it must be concluded that, while the acts alleged to violate the international human rights of Mr. Biloune may be relevant in considering the investment dispute under arbitration, this Tribunal lacks jurisdiction to address, as an independent cause of action, a claim of violation of human rights.1015 The Tribunal finally dismissed Biloune’s human rights claim for lack of jurisdiction. 3.1.2 Moral Damage The ICSID tribunal in Spyridon Roussalis v. Romania1016 similarly had a chance to deal with human rights claims of investor claimants. Here, the Tribunal again dismissed human rights claims, but on different grounds from the case of Biloune. In this case, with respect to the government’s suit challenging his ownership of the investment, the Claimant asserted the claims of moral damages based not only on the BIT concluded between Greece and Romania but also on international human rights law, particularly, the First Additional Protocol to the ECHR.1017 In its view, Romania breached its international obligations under both legal regimes. The Tribunal did not apply international human rights law as sought, and held, interestingly, that “given the higher and more specific level of protection offered by the BIT to the investors compared to the more general protection offered to them by the human rights instruments.”1018

1015  Ibid. 1016  Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Award, Dec. 7, 2011 [“Spyridon Roussalis v. Romania”]. 1017  Ibid., para. 63. 1018  Ibid., para. 312.

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3.2 Counterclaims of the Host States The host state, as a respondent in investment treaty arbitration, may invoke human rights concerns in the form of counterclaims.1019 There are two paths of raising human rights-based counterclaims. The respondent state typically argues that the measures allegedly in breach of the protection standards of the relevant IIA are adopted to comply with its non-investment obligations under the national constitution or international human rights law. The State can claim that it has positive obligations to regulate various economic activities in a manner that does not violate human rights of people on its territory.1020 While some human rights obligations only require them to refrain from interfering with the enjoyment of individual rights (i.e., negative obligation), other obligations can be fully satisfied only when the state government actively takes specific measures to protect human rights (i.e. positive obligation). With respect to the host state’s counterclaims in the investment dispute, chances are high that its argument originates from a legal obligation pursuant to the ESC rights, rights that typically require states to take positive actions and regulate the activities of other actors. To the extent which the measures in question are in furtherance of legitimate policy goals, investor claimants cannot seek compensation for the damage caused by those measures. Alternatively, the respondent state can argue that the investments made in violation of human rights law must not form a basis of investor-state arbitration. This line of argument is originally derived from the clean hands doctrine: the state in guilty of illegal conducts [ . . . ] may be deprived of the necessary locus standi in judicio for complaining of corresponding illegalities on the part of other states, especially if these were consequential on or were embarked upon in order to counter its own illegality—in short were provoked by it.1021

1019  On a related note, counterclaims of states would also help to correct an imbalance embedded in investment treaty arbitration. See generally, Andrea K. Bjorklund, The Role of Counterclaims in Rebalancing Investment Law, 17 Lewis & Clark L. Rev. 461 (2013). 1020  As examined in Section C-2.3 of the Chapter 3, international human rights obligations of the states entail the obligations to respect, protect, and fulfill. 1021  Sir Gerald Fitzmaurice, The General Principles of International Law. Considered from the Standpoint of the Rule of Law, Recueil des Cours, Vol. 92, p. 119 (1957 II). See also Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals 155–158 (Grotius Publications, 1987).

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In this light, foreign investors whose conducts in the host state are in clear breach of human rights law must not be entitled to seek protection and compensation, under the international investment regime. 3.2.1 Anti–Racial Discrimination Policy The case of Foresti v. South Africa1022 concerned affirmative action adopted to redress the long-standing economic disadvantage of non-whites in South Africa. An Italian investor, Piero Foresti, and a number of corporations engaged in mining in South Africa brought this suit before the ICSID. The Claimants argued that South Africa’s adoption of Black Economic Empowerment (“BEE”) Laws of the Minerals and Petroleum Resources Development Act of 2002 (“MPRDA”) violated their rights under the South Africa-Italy BIT, and the South Africa-Belgo-Luxembourg Economic Union BIT. The BEE provision was legislated after South Africa made a historical transition from an apartheid system to a democratic government. It was adopted to eliminate discriminatory consequences of the apartheid regime on the Black population. According to power granted under the MPRDA’s BEE provision, the government confiscated ownership of all natural resources in the country. Since the government began to determine the rights of mineral exploitation through a system of licensing, the Claimants (who previously possessed certain rights to minerals) were forced to apply for licenses to continue their business in the host state. In this regard, the claimants argued that the measures taken under the BEE law had not met the requirement of fair and equitable treatment; the host state’s measures in question had also made their mining rights less valuable, and violated international standards of expropriation.1023 South Africa claimed that the empowerment provision in the MPRDA was originally designed to alleviate the negative effects of historical racial inequality that occurred under the former apartheid regime. According to relevant provision of the MPRDA, the objective of legislation was to “substantially and meaningfully expand opportunities for historically disadvantaged persons, including women and communities, to enter the mineral and petroleum industries and to benefit from the exploitation of the nation’s mineral and petroleum resources.”1024 South Africa’s obligation to eliminate all forms of racial discrimination is required not only required by domestic law, but also by 1022  Piero Foresti et al. v. Republic of South Africa, ICSID Case No. ARB(AF)/07/01, Award, Aug. 4, 2010 [“Foresti v. South Africa”]; for the general background of this case, see Joseph (2013), at 865. 1023  Foresti v. South Africa, paras. 54, 78. 1024  Minerals and Petroleum Resources Development Act of 2002, 2(d).

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human rights treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and several other international conventions.1025 The parties to Foresti v. South Africa ultimately chose to settle the case outside of arbitral tribunal. The claimant companies discontinued their suit after a significant backlash from civil society. 3.2.2 Cultural Heritage Protection The arbitral tribunal in S.P.P. v. Egypt1026 dealt with the competing interests between investor rights under investment law, and the domestic measures designed to protect cultural heritage pursuant to the UNESCO Convention for the Protection of World Cultural and Natural Heritage. In 1974, a Hong Kong-based corporation, S.P.P., and the government of Egypt signed a contract for the development of a tourist village at the Pyramids of Giza in Egypt. Egypt nominated the area to be added to the list of World Heritage Committee (“WHC”) in that same year. Due to the negative effects of construction on the Pyramids site’s archaeological and cultural value, there was a strong opposition to this investment project. In 1978, while the project was still ongoing, the government of Egypt terminated the contract as a result of parliamentary action to this effect, and the area was added to the World Heritage list. The SPP and its subsidiaries in Egypt had already spent a large amount of money for the project, in the form of capital contributions, loans, and infrastructure development. Against this backdrop, in 1984, the Claimants brought a suit before the ICSID tribunal, claiming damages for breach of contract and compensation for expropriation; in their views, the government measures in question expropriated the Claimants’ investment. In defense, among others, Egypt argued that its measures were adopted in accordance with the UNESCO Convention and the WHC scheme. The Tribunal, however, did not accept that such a policy objective of the host state could alter its obligation to pay compensation in this case. It ultimately awarded damages to the foreign investors.

1025  The International Commission of Jurists raised this point in its petition as a nondisputing party filed in accordance with Article 41(3) of the ICSID Additional Facility Rules in Foresti v. South Africa, Petition for Limited Participation as Non-Disputing Parties in Terms of Articles 41(3), 27, 39, and 35 of the Additional Facility Rules, (Jul. 17, 2009), para. 4.2. 1026  Southern Pacific Properties (Middle East) Ltd v. The Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, May 20, 1992 [“S.P.P. v. Egypt”].

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The Tribunal in S.P.P. v. Egypt emphasized the factual background that Egypt applied for the WHC listing, after termination of the project.1027 It held as follows, The UNESCO Convention by itself does not justify the measures taken by the Respondent to cancel the project, nor does it exclude the Claimant’s right to compensation. . . . the choice of sites to be protected is not imposed externally, but results instead from the State’s own voluntary nomination. Consequently, the date on which the Convention entered into force with respect to the Respondent is not the date on which the Respondent became obligated by the Convention to protect and conserve antiquities on the Pyramids Plateau. It was only in 1979, after the Respondent nominated ‘the pyramid fields’ and the World Heritage Committee accepted that nomination, [ . . . ].1028 Arbitrators noted that the “international obligations emanating from the Convention” became binding on Egypt only in 1979, a year after the cancellation of the investment contract.1029 Some scholars criticized the S.P.P. v. Egypt tribunal’s restrictive view, arguing that state obligations (under the UNESCO regime), with respect to a particular historic site, may arise even before the actual listing.1030 In any case, this holding implicitly indicates the relevance of the state’s international obligation, derived from non-investment regime, for resolving investor-state disputes. Egypt’s concurrent obligation under the WHC regime was also taken into consideration when determining the amount of compensation to be paid to the investors. In the Tribunal’s view, “a hypothetical continuation of the Claimants’ activities interfering with antiquities in the area could be considered as unlawful from the international law point of view.”1031 Accordingly, it reduced the amount of compensation awarded, stating that only the actual damage, and not the loss of profit, could be compensated.1032 The approach taken in the case of Santa Elena SA v. Costa Rica was less favorable to the recourse to the concerns of cultural and natural 1027  S.P.P. v. Egypt, para. 82. 1028  Ibid., para. 154. 1029  Ibid., para. 154. 1030  Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration 122 (Cambridge University Press, 2014). 1031  S.P.P. v. Egypt, para. 154. 1032  Ibid., para. 157.

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heritage, in comparison with S.P.P. v. Egypt.1033 In Santa Elena SA v. Costa Rica, the Claimant brought a suit against Costa Rica to claim compensation for the damaged caused, due to expropriation of the property known as “Santa Elena.” This region had been designated as a World Heritage Site due to its biological and geological significance; it contained miles of “Pacific coastlines, as well as numerous rivers, springs, valleys, forests and mountains” which sustained “a variety of flora and fauna,” many of which are “indigenous” to the region and “to the tropical dry forest habitat for which it is known.”1034 In 1970, the Claimant and the local government of Costa Rica signed a contract to purchase Santa Elena, with the purpose of developing the region as a tourist resort and residential community. In 1978, Costa Rica issued an expropriation degree for Santa Elena and after assessing the Claimant’s property, proposed to pay compensation for the intended expropriation. Subsequently, a long line of discussions and disputes were made between the two parties in the Costa Rican courts over the determination of compensation. In 1995, the Claimant finally brought this dispute to the ICSID. Costa Rica argued that the measures in dispute were taken to comply with its international legal obligation to preserve the unique ecological site. From its perspective, the environmental purposes for which the taking was exercised should affect the determination of property valuation. The Tribunal in Santa Elena, however held as follows: [ . . . ] the purpose of protecting the environment for which the Property was taken does not alter the legal character of the taking for which adequate compensation must be paid. The international source of the obligation to protect the environment makes no difference. Expropriatory environmental measures—no matter how laudable and beneficial to society as a whole—are, in this respect, similar to any other expropriatory measures that a state may take in order to implement its policies: where property is expropriated, even for environmental purposes, whether domestic or international, the state’s obligation to pay compensation remains.1035

1033  Compania del Desarrollo de Santa Elena SA v. Republic of Costa Rica, ICSID Case No ARB/96/1, Award, Feb. 17, 2000 [“Santa Elena SA v. Costa Rica”]; see generally, Dyalá Jiménez-Figueres & Karina Cherro, Investment Arbitration in Costa Rica, 29 J. Int’l Arb. 453, 456–458 (2012). 1034  Santa Elena SA v. Costa Rica, para. 15. 1035  Ibid., para. 71.

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By opting for strict enforcement of foreign investment protection, in effect, the Tribunal prioritized the investment regime over both national and international norms of environmental and cultural protection.1036 3.2.3 Access to Water Beginning from the 1990s, the World Bank and other related intergovernmental organizations strongly encouraged states to privatize various service sectors that were under exclusive public ownership and control. In administering the structural adjustment scheme, the World Bank and the IMF frequently require water privatization as loan conditionality. Against this backdrop, the privatization of water services has been particularly accelerated in low-income and developing countries. Foreign enterprises have signed numerous concession contracts with these states, in order to provide and distribute water services. However, private sector involvement in water services did not always lead to success; prevalent problems in this regard include substantial increases in price, poor control of water quality, and lack of accountability for illegal conducts of companies. Azurix v. Argentina was the first decision made by an investment arbitral tribunal concerning water sector disputes. In 1999, the Claimant, an American corporation concluded a contract to provide water and sewage services in the Province of Buenos Aires. This contract granted the Claimant a 30-year concession for the distribution of potable water, and the treatment of disposal of sewerage in the region. Due to rising concerns of bad water quality (e.g. algae outbreak in the water system) and water pressure, the government authorities advised the public to boil tap water, avoid drinking local water, as well as not to pay water bills. In 2001, the Claimant finally canceled the contract and subsequently brought a suit based on the U.S.-Argentina BIT, claiming compensation for the damage caused. It argued that Argentine measures in question had violated its rights under relevant rules of expropriation, fair and equitable treatment, full protection and security. Argentina made assertions to justify its national measures, A conflict between the BIT and human rights treaties that protect consumers rights must be resolved in favor of human rights because the consumers’ public interest must prevail over the private interest of service provider.1037 1036  Philppe Sands, Searching for Balance: Concluding Remarks, 11 NYU Environmental LJ 198, 204 (2002). 1037  Azurix v. Argentina, para. 254.

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Argentina found a tension between its investment and human rights obligations. On this point, the Claimant argued that the user’s rights were “duly protected by the provisions made in the Concession Agreement” and pointed out that Argentina failed to prove “how said rights were affected by the termination.”1038 The Respondent’s argument did not satisfy the Tribunal in this case. In the view of the Azurix v. Argentina tribunal, [t]he matter has not been fully argued and the Tribunal fails to understand the incompatibility in the specifics of the instant case’ especially since the water services to the public continued even after the termination notice and through the new provincial utility after the transfer of service.1039 As a conclusion, Argentina violated the standards of fair and equitable treatment and full protection and security, in relation to Azurix’s investment. While the factual circumstance raised questions about the failure of water liberalization and its implications on the rights to water, this aspect of dispute was not adequately addressed. The Tribunal did not examine Argentina’s domestic and international obligations to protect the rights to water. Interestingly, the amount of compensation was significantly reduced, but not because of human rights concerns, as the Tribunal pointed to the fact that Azurix was substantially overpaid for the concession.1040 The Tribunal in Biwater v Tanzania1041 also had an opportunity to examine the conflicting obligations of foreign investment protection and human rights, in the context of water privatization. This case concerned a water and sewage infrastructure project in Dar es Salaam, Tanzania. Biwater Group, a U.K. water company, signed a 40-year concession with the government of Tanzania, regarding the right to lease and manage Dar es Salaam’s water and sewage system. Under this contract, City Water which was partially owned by Biwater enjoyed an exclusive right to provide water and sewage services in the region. Biwater initially committed to 1038  Ibid., para. 254. 1039  Ibid., para. 261. 1040  Here, the Azurix Tribunal stated: the Tribunal’s view, no well-informed investor, in March 2002, would have paid for the Concession the price (and more particularly, the Canon) paid by Azurix in mid-1999, irrespective of the actions taken by the Province and of the economic situation of Argentina at that time. Azurix v. Argentina, para. 426. 1041  Biwater Gauff Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, Jul. 24, 2008 [“Biwater v Tanzania”].

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guarantee low water rates and significant infrastructure developments. However, it not only failed to improve the water and sewage service as promised, but also faced critical financial problems due to its miscalculations on the project expenses.1042 In 2005, Tanzania unilaterally terminated the concession, deported the senior management officers in charge of Biwater, and seized the assets of the project. In that same year, Biwater brought a suit against Tanzania before the ICSID, claiming compensation for the damage caused by Tanzania. The Tribunal was established to determine whether Tanzania had violated its investment obligations under the Tanzania-U.K. BIT and other relevant rules. In its defense, Tanzania argued that the water and sewage service provided under the Claimant’s concession had created “a real threat to public health and welfare.” The Biwater Tribunal noted: Considering the importance of the issue at hand, the fact that City Water was entitled to remain in control for three weeks at most, and City Water’s own responsibility for creating the crisis, the Government acted well within the Republic’s margin of appreciation under international law (emphasis added).1043 Although Tanzania did not make a direct reference to the rights to water, its argument implied that it had regulatory concerns for human rights protection under the circumstances, as in this case. With respect to the human rights implications of the case, interestingly, the Tribunal noted as follows, [ . . . ] foreign corporations engaged in projects intimately related to human rights and the capacity to achieve sustainable development (such as the project here), have the highest level of responsibility as foreign investors, before seeking the protection of international law.1044 Pursuant to Biwater tribunal, since this decision would have an expansive impact upon the “wider community in Tanzania”, it is important to thoroughly examine the issues in dispute “from all relevant standpoints.”1045 In this light, the Tribunal found it appropriate to permit intervention of some non-disputing parties by way of submitting amicus briefs.

1042  Biwater v Tanzania, Award, paras. 147, 178. 1043  Ibid., para. 436. 1044  Biwater v Tanzania, Award, para. 380. 1045  Ibid., para. 358.

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The Biwater tribunal held that Tanzania’s measures did constitute an expropriation of the Claimant’s investment, and that Tanzania was in violation of fair and equitable treatment, as well as full protection and security standards. Nevertheless, in assessing the amount of compensation, the majority concluded that the Respondent did not cause any loss to Biwater, because its investment had already failed by the time Tanzania breached its BIT obligations.1046 In contrast, the minority found some injury committed by Tanzania’s conducts.1047 All three arbitrators agreed that there was no quantifiable monetary loss, since Biwater’s investment already had no value at the time of expropriation. The Tribunal held that there was no “sufficient causal link between the actual breach of the BIT and the loss sustained.”1048 Instead, it was of the view that the loss sustained was due to the investor’s own failures, such as its overall poor performance, and unsustainable assumptions in the course of performing the investment project. This can have meaningful implications for states in making human rights references: the serious wrongdoing of the investor may be reflected in the calculation of the damages incurred. 3.2.4 Tobacco Control and Public Health In Philip Morris v. Uruguay,1049 the Claimant corporations, which were registered in Switzerland, challenged the Tobacco packaging legislation of Uruguay, designed to control Tobacco consumption and protect human health. This plain packaging legislation requires all cigarette packages to include pictures that illustrate the effects of smoking on human health, in addition to textual warnings. The Claimants argued before the ICSID that the regulations of Uruguay unfairly caused a substantial decrease in sales and limited the use of trademarks and intellectual property. Uruguay allegedly violated their rights under the Uruguay-Switzerland BIT in connection with that investment. At the jurisdiction stage, Uruguay sought to justify its domestic legislations as follows:

1046  Ibid., paras. 792–798. 1047  Ibid., para. 803. 1048  Ibid., para. 779. 1049  Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Decision on Jurisdiction, Jul. 2, 2013 [“Philip Morris v. Uruguay”]; see for more analysis on the background of this case, Valentina S. Vadi, Global Health Governance at a Crossroads: Trademark Protection v. Tobacco Control in International Investment Law, 48 Stan J. Int’l L. 93 (2012).

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The public health reasons for the adoption of Decree 287/009 are evident, the Preamble to the Decree citing the same public health justification as the Preamble to Ordinance 514, invoking Article 11 of the WHO Framework Convention on Tobacco Control requiring, inter alia, that warnings and messages “be 50% or more of the principal display areas . . .”. Decree 287/009 was issued six months after the unanimous adoption of the Framework Convention Guidelines for Article 11, establishing that health warning and messages should cover “as much of the principal display area as possible.1050 As argued, with the adoption of the Framework Convention on Tobacco Control under the WHO,1051 178 governments (including Uruguay) committed to enact comprehensive national policies, designed to reduce tobacco consumption, through warnings and restrictions on the marketing of tobacco products and other strategies. Uruguay has a long history of tobacco control laws; effective tobacco control has been a part of its regulatory culture. To add to this point, Uruguay argued that Article 2(1) of the Uruguay-Switzerland BIT excludes public health measures.1052 This provision reads, The Contracting Parties recognize each other’s right not to allow economic activities for reasons of public security and order, public health or morality, as well as activities which by law are reserved to their own investors. However, in the Decision of Jurisdiction in 2013, the Philip Morris v. Uruguay Tribunal found that this exclusion only applied to pre-established laws and regulations, and that Article 2(1) did not create an exception to substantive BIT obligations with respect to investments that had “already been admitted in accordance with Uruguayan law”.1053 Dismissing the Respondent state’s claims against jurisdiction, the Tribunal finally issued a decision finding jurisdiction over the case.1054 The final award of Philip Morris v. Uruguay has not been rendered yet as of 2015. It remains to be seen to what extent and under which circumstances, that 1050  Philip Morris v. Uruguay, para. 162. 1051  W HO Framework Convention on Tobacco Control, May 21, 2003, 2302 U.N.T.S. 166; Uruguay has ratified the FCTC since 2004. 1052  Philip Morris v. Uruguay, para. 151. 1053  Ibid., para. 174. 1054  Ibid., para. 235.

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the arbitral tribunal would consider the relevance of the state’s treaty commitments under the WHO regime in the context of investment disputes. 3.3 Non-Disputing Parties Submission Purely commercial arbitration cases usually deal with disputes between two private contracting parties. By comparison, one of the central objectives of investor-state arbitration is to assess the legality of sovereign conduct, and the exercise of governmental authorities under relevant IIAs. Arbitral tribunals, in these cases, review various domestic public policies that significantly affect a broad range of actors in the countries involved; the public significance of investor-state arbitration is evident. In this sense, increased public involvement in investment arbitration proceedings is both necessary and desirable. Amicus curiae submission has been recognized as a procedure that contributes to enhancing public participation in investment arbitration, and thereby, increasing the overall legitimacy of the investor-state arbitration system.1055 Generally translated as “friend of the court”, amicus curiae, as non-disputing parties, provide the court with its special expertise with respect to the substantive issues of the dispute. Amicus briefs, frequently used in common law tradition, are documents voluntarily submitted to a court by non-disputing parties (NDPs). Amicus submissions have become well-established in international judicial proceedings today; international courts such as the ECtHR and the WTO dsb have allowed third party intervention through amicus briefs, when specific conditions are met.1056 Although third party participation was largely disfavored or rejected in investor-state arbitration, many recent arbitral tribunals have gradually

1055  Jorge Vinuales, Human Rights and Investment Arbitration: The Role of Amici Curiae, Revista Colombiana de Derecho Internacional 231, 237 (2006) (this article is available at http://www.redalyc.org/pdf/824/82400806.pdf); J. Anthony Van Duzer, Enhancing the Procedural Legitimacy of Investor-State Arbitration through Transparency and Amicus Curiae Participation, 52 McGill J. Int’l L. 681 (2007); Eric De Brabandere, NGOs and the ‘Public Interest’: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes, 12 Chicago J. Int’l L. 85 (2011); Eugenia Levine, Amicus Curiae in International Investment Arbitration: Implications of an Increase in Third-Party Participation, 29 Berkeley J. Int’l L. 200 (2011); Sergio Puig, The Role of Procedure in the Development of Investment law: The Case of Section B of Chapter Eleven of NAFTA in Evolution in Investment Treaty Law and Arbitration (Chester Brown & Kate Miles eds., Cambridge University Press, 2012). 1056  See generally, Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am. J. Int’l L. 611 (1994).

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allowed amicus participation.1057 NGOs are a typical example of NDP that file petitions to receive amicus status. Amicus participation in investor-state arbitration first arose in the case under the Chapter 11 process of NAFTA. In Methanex Corp. v. United States,1058 the Claimant, a Canadian manufacturer of methanol, which is a key component of additive MTBE (methyl tertiary butyl ether) brought a suit against the U.S. for prohibiting the production and sale of MTBE. The Methanex Tribunal held that it had the power to receive written submissions from the third parties.1059 With respect to potential effects of MTBE on the safety of drinking water, it accepted and considered amicus briefs submitted by several NGOs, including the International Institute for Sustainable Development (“IISD”). In some other cases, NGO amicus briefs seek to introduce relevant human rights concerns, and address matters of public interest in the host state. Many policy reports and commentators find a growing acceptance of arbitrators to consider non-party interventions of this kind.1060 By submitting amicus briefs, non-disputing parties examine the ways in which human rights concerns contained in human rights treaties become relevant in the final resolution of investment disputes. 3.3.1 Access to Water Aguas del Tunari v. Bolivia1061 concerned the investment project derived from a contract of 40-year concessions privatizing water service in Cochabamba, Bolivia. This contract granted Aguas del Tunari (the Claimant in this case) exclusive use of water resources in the region. Within a few weeks after enforcing the contract, water prices rose by an average of 35%; hence water became unaffordable for the majority of the Cochabamba population. Around 50% of 1057  Eugenia Levine, Amicus Curiae in International Investment Arbitration: The Implications of an Increase in Third-Party Participation, 29 Berkeley J. int’l L. 200, 208–209 (2011). 1058  Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits, UNCITRAL, Aug. 3, 2005 [“Methanex Corp. v. U.S.”]. 1059  See Methanex Corp. v. U.S., Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae, Jan. 15, 2001 (available at http://italaw.com/sites/default/ files/case-documents/ita0517_0.pdf); United States Parcel Service of America v. Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, Oct. 17, 2001 (available at http://www.italaw.com/sites/default/files/case-documents/ ita0883.pdf). 1060  U NCTAD, Selected Recent Developments in IIA Arbitration and Human Rights, IIA Monitor No. 2 (2009), p. 4. 1061  Aguas del Tunari S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent’s objections to jurisdiction, Oct. 21, 2005 [“Aguas del Tunari v. Bolivia”].

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water supply was also lost during transport. The poor water service provided by Aguas del Tunari provoked nationwide outrage and opposition, causing the government to declare a state of national emergency. Bolivia terminated the concession in this context of severe civil unrest. In 2001, Aguas del Tunari brought a suit with ICSID under the Netherlands-Bolivia BIT. The Tribunal found jurisdiction over the dispute in 2005. Although this case was finally withdrawn, it has important implications to examine the tension between an investor’s rights under the concession and Bolivia’s sovereign authority to restore order, as well as to protect access to water in the region. Due to human rights concerns arising from the case, a large number of NGOs and individuals filed a petition to participate in the proceedings, under the amicus curiae status. The Aguas del Tunari Tribunal was the first ICSID tribunal to determine whether to allow amicus submission. The Earth Justice, the Center for International Law (“CIEL”), La Coordinadora para la Defensa del Agua y Vida (Coalition for the Defense of Water and Life), La Federación Departamental Cochabambina de Organizaciones Regantes (the Cochabamba Federation of Irrigators’ Organizations), SEMAPA Sur, a grassroots organization dedicated to bringing water in the southern part of Cochabamba, and the Friends of the Earth-Netherlands sought to intervene as amicus curiae. They claimed that the legal issues such as public health and rights to water required their interventions.1062 However, arbitrators in this case denied the requests, stating that the core requests of the Petitioners were “beyond the power or the authority of the Tribunal to grant.”1063 In its view, without the consent of the parties to the dispute, it did not have power to join third parties to the proceedings or receive amicus briefs. Subsequent to Aguas del Tunari, many proposals were made to amend relevant ICSID procedural rules concerning NDP participation, through amicus briefs. On these lines, Rule 37 of the ICSID Arbitration Rules was later amended. Rule 37(2) reads:

1062  For the claims of Petitioners, see Aguas del Tunari v Bolivia, Petition of La Coordinadora para la Defensa del Agua y Vida, La Federación Departamental Cochabambina de Organizaciones Regantes, SEMAPA Sur, Friends of the Earth-Netherlands, Oscar Olivera, Omar Fernandez, Father Luis Sánchez, and Congressman Jorge Alvarado To the Arbitral Tribunal, Aug. 29, 2002; NGO Petition to Participate as Amicus Curiae, Jan. 29, 2003 (available at http://www.italaw.com/cases/documents/60). 1063  Aguas del Tunari v Bolivia, Letter from President of Tribunal Responding to Petition, Jan. 29, 2003 (available at http://www.italaw.com/sites/default/files/case-documents/ ita0019_0.pdf).

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After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the “nondisputing party”) to file a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the Tribunal shall consider, among other things, the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address a matter within the scope of the dispute; (c) the non-disputing party has a significant interest in the proceeding. The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission. The amended rule was initially applied by Biwater; following which, the Tribunal tested the practical meaning and the scope of this provision. Five NGOs including the Lawyers’ Environmental Action Team, the Legal and Human Rights Centre, The Tanzania Gender Networking Programme, the Center for International Environmental Law, and the International Institute for Sustainable Development, applied for amicus submissions under Rule 37(2), relating to the privatization of the water supply sector.1064 The Petitioners articulated that this arbitration dealt with matters of important public concerns involving both “natural resources and human rights issues.”1065 In their view, the Biwater case had implications beyond Tanzania’s borders, as regulating this type of major infrastructure projects is of critical concern for many developing countries. The Petitioners additionally pointed out that the legal responsibilities of foreign investors in such projects must be comprehensively assessed in the course of investor-state arbitrations.1066 Given these “real and legitimate public concerns” present in Biwater, they filed a petition with the ICSID Secretariat for amicus curiae status, as well as for the access to key arbitration documents and permission to attend oral hearings. The Petitioners also examined various international human rights-related instruments, such as 1064  Biwater Gauff v Tanzania, Petition for Amicus Curiae Status in Case No. ARB/05/22 Before the International Centre for Settlement of Investment Disputes, Nov. 27, 2006, para. 17 (available at http://www.ciel.org/Publications/Tanzania_Amicus_1Dec06.pdf). 1065  Biwater Gauff v Tanzania, Petition for Amicus Curiae Status, para. 8. 1066  Ibid., paras. 7–9.

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the Millennium Development Goals adopted by the UN in 2000, and relevant works of the CESCR. UN human rights bodies have also submitted a series of reports and observations concerning the effective implementation of right to water.1067 International human rights treaties, such as the ICESCR, CEDAW, and the CRC specifically prescribe the right to water.1068 After carefully evaluating the information provided in the Petition, the nature and expertise of each petitioner, and the summary of submissions, the Biwater tribunal observed in its Procedural Order No. 5 that: [ . . . ] (t)he Arbitral Tribunal is of the view that it may benefit from a written submissions by the Petitioners, and that allowing for the making of

1067  Most notably, see CESCR, General Comment No. 15 (2002); the CESCR here elaborates upon some of the specific legal obligations which may be inherent in the right to water. The Committee also provides some examples of potential violations of the rights as following:  (a) Violations of the obligation to respect follow from the State party’s interference with the right to water. This includes, inter alia: (i) arbitrary or unjustified disconnection or exclusion from water services or facilities; (ii) discriminatory or unaffordable increases in the price of water; and (iii) pollution and diminution of water resources affecting human health;  (b) Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to water by third parties This includes, inter alia: (i) failure to enact or enforce laws to prevent the contamination and inequitable extraction of water; (ii) failure to effectively regulate and control water services providers; (iv) failure to protect water distribution systems (e.g., piped networks and wells) from interference, damage and destruction; and  (c) Violations of the obligation to fulfill occur through the failure of States parties to take all necessary steps to ensure the realization of the right to water. Examples includes, inter alia: (i) failure to adopt or implement a national water policy designed to ensure the right to water for everyone; (ii) insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to water by individuals or groups, particularly the vulnerable or marginalized; (iii) failure to monitor the realization of the right to water at the national level, for example by identifying right-to-water indicators and benchmarks; (iv) failure to take measures to reduce the inequitable distribution of water facilities and services; (v) failure to adopt mechanisms for emergency relief; (vi) failure to ensure that the minimum essential level of the right is enjoyed by everyone (vii) failure of a State to take into account its international legal obligations regarding the right to water when entering into agreements with other States or with international organizations. 1068  I CESCR Articles 11 and 12; CRC Article 24(2); CEDAW Article 14(2).

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such submission by these entities in these proceedings is an important element in the overall discharge of the Arbitral Tribunal’s mandate.1069 The Tribunal held that these NDP petitions were important to secure “wider confidence in the arbitral process itself.” It further noted: . . . given the particular qualifications of the Petitioners, and the basis for their intervention as articulated in the Petition, it is envisaged that the Petitioners will address broad policy issues concerning sustainable development, environment, human rights and governmental policy. These, indeed, are the areas that fall within the ambit of Rule 37(2)(a) of the ICSID Rules.1070 In comparison with previous cases, this Tribunal took a more flexible approach in reviewing petitions for amicus curie status. However, the Tribunal dismissed Petitioners’ other requests to attend and participate in the hearings and for disclosure of the documents. According to Petitioners’ briefs accepted in this case, investor responsibility must be examined against the backdrop of the following principles.1071 (a) the duty to apply proper business standards to the investment process, including proper due diligence procedures; (b) the principle of pacta sunt servanda; and (c) the duty to act in good faith both prior to and during the investment period. Importantly, Amici’s arguments on investor responsibility were explicitly noted by the Tribunal in the final award. After analyzing these three principles elaborated in the Petitioners’ written submissions, the Biwater tribunal held that “given the nature of the project, the issue of investor responsibility in this case must be assessed in the context of sustainable development and human rights.”1072 In its view, “human rights and sustainable development issues are factors that condition the nature and extent of the investor’s responsibilities, 1069  Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 5 (Feb. 2, 2007) [“Biwater v. Tanzania, Procedural Order No.5”], para. 50. 1070  Biwater v Tanzania, Procedural Order No. 5, para. 64. 1071  Biwater v Tanzania, Award, para. 374. 1072  Ibid., para. 379.

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and the balance of rights and obligations as between the investor and the host state.”1073 3.3.2 Rights of Indigenous Populations Pezold v. Zimbabwe1074 did not accept the relatively liberal approach adopted by Biwater in reviewing the NDP submission.1075 The claimants operated timber plantations located at the disputed site in Zimbabwe. In the context of Zimbabwe’s 2000 Land Reform Programme, the claimants were allegedly expropriated without compensation by the government. In May 2012, the European Center for Constitutional and Human Rights (“ECCHR”) submitted a joint petition with the four chiefs of the indigenous communities in the region; this petition was made to attain amici status pursuant to Rule 37(2). The Petitioners specifically asserted that this case raised “critical questions of international human rights law, which engage both the duty of Zimbabwe and the responsibility of the investor company, with regard to the affected indigenous peoples.”1076 International human rights law, particularly the rights of indigenous people, could provide essential considerations for the arbitrators. According to the Petitioners, a careful assessment of human rights—investment relationship was critical for protecting various human rights in practice.1077 The ECCHR examined the potential violations of the rights of the indigenous peoples affected in the context of the current case. 1073  Ibid., para. 380. 1074  Bernhard von Pezold and others v. Zimbabwe, ICSID Case No. ARB/10/15 and Border Timbers and others v. Zimbabwe ICSID Case No. ARB/10/12, Procedural Order 2, Jun. 26, 2012. 1075  See generally, J. Cameron Mowatt & Celeste Mowatt, Border Timbers and others v. Zimbabwe and von Pezold and others v. Zimbabwe, 28 ICSID Rev. 33 (2013). 1076  Von Pezold v. Zimbabwe, Procedural Order 2, para. 2. 1077  Ibid.; to be more specific, the ECCHR pointed to the following: Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, on corporate responsibilities and the rights of indigenous people: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, U.N. Doc. A/HRC/15/37 (2010). Commentary to Principle 9, UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework A/HRC/17/31; Sawhoyamaxa Indigenous Community v. Paraguay, Judgment, InterAmerican Court of Human Rights, Series C No. 146 (Mar. 26, 2006), para. 140; The Committee on Economic, Social and Cultural Rights has identified that “the failure of a State to take into account its international legal obligations regarding the right to food when entering into agreements with other States or with international organizations as a specific instance of violation of the right to food.” CESCR, General Comment No. 12: The right to adequate food (1999), para. 19; see also Oliver De Schutter (UN Special

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In particular, the Petitioners argued that the tribunal must not make any determination or award that negatively impacts on the rights of these peoples under international law to their ancestral lands. The legal consequences of the tribunal’s award in the present case include serious potential violations of the rights of the indigenous peoples affected: – the determination of rights and access to land inhabited by indigenous communities, which may impede their enjoyment of their internationally recognized rights to their ancestral lands and violate their right to free, prior and informed consent; – the prejudicing of the rights under international law to access to judicial remedies for human rights violations.1078 However, the Tribunal in Von Pezold v. Zimbabwe denied the Petitioners’ application, on the grounds that the “minimum criteria” of Rule 37(2) was not satisfied. [t]he Petitioners provided no evidence or support for their assertion that international investment law and international human rights law are interdependent such that any decision of these Arbitral Tribunals which did not consider the content of international human rights norms would be legally incomplete.”1079 In view of the Tribunal, the Petitioners had no “significant interest” in the proceeding.1080 The ECCHR, for example, did not possess special expertise to deal with the issues (particularly indigenous rights) in question. Von Pezold Tribunal also emphasized that the Petitioners must be independent in accordance with the proper interpretation of Rule 37(2). From the perspective of arbitrators, chiefs of indigenous communities claimed their own rights over the disputed area. In this sense, they were not entitled to participate the proRapporteur on the right to food), Confronting the Global Food Challenge: A Human Rights Approach to Trade and Investment Policies (Nov. 2008)(available at http://www .iatp.org/files/451_2_104504.pdf). 1078  European Center for Constitutional and Human Rights (ECCHR), Human Rights inapplicable in International Investment Arbitration?: A Commentary on the non-admission of ECCHR and Indigenous Communities as Amici Curiae before the ICSID Tribunal (July 2012), pp. 3–4, available at http://www.ecchr.de/worldbank.html?file=tl_files/Dokumente/ Wirtschaft%20und%20Menschenrechte/ICSID%20tribunal%20-%20Human%20 Rights%20Inapplicable_A%20Commentary.pdf. 1079  Von Pezold v. Zimbabwe, Procedural Order 2, para. 58. 1080  Ibid., para. 61–62.

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ceeding because the Tribunal found “legitimate doubts as to the independence or neutrality of the petitioners”.1081 A written submission of the Petitioners considered indigenous rights in this case, raising relevance of international human rights law; on this point, the Tribunal noted that this was a matter outside of the scope of the dispute. It held: [I]n order for the Arbitral Tribunals to consider such a submission, they would need to consider and decide whether the indigenous communities constitute “indigenous peoples” for the purposes of grounding any rights under international human rights law. Setting aside whether or not the Arbitral Tribunals are the appropriate arbiters of this decision, the decision itself is clearly outside of the scope of the dispute before the Tribunals.1082 Neither party to the dispute raised specific claims on the treatment of indigenous people and potential application of international human rights law to the case at hand; the extension of the claim to human rights was merely requested by non-disputing parties. For the foregoing reasons, arbitrators of this case rejected a joint application from the ECCHR and indigenous communities to file a written submission.1083 While the Tribunal’s approach in Von Pezold v. Zimbabwe was more reserved than the understanding of Biwater, it still recognized that the arbitral tribunal had discretion whether to allow NDPs to submit amicus briefs, even with the Claimant’s opposition. In some cases, the arbitral tribunals extended access to make non-party interventions to groups other than the recognized NGOs supposedly having specialized knowledge and expertise on the issues at stake. Glamis Gold v. U.S.1084 similarly expanded the acceptance of amicus submission in investor-state dispute, accepting three sets of written documents. Interestingly, the submission from the Quechan Indian Tribe was acknowledged. The proposed mining project of the Claimant had a significant impact on their rights to land; the project also undermined their ability to travel physically and spiritually along the

1081  Ibid., para. 56. 1082  Ibid., para. 60. 1083  Ibid., para. 64. 1084  Glamis Gold Ltd v. United States of America, Award, UNCITRAL, May 14, 2009.

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Indian trails situated next to the project site, imposing substantial restrictions on their freedom of religion.1085 3.3.3 Tobacco Control and Public Health In the case of Philip Morris v. Uruguay,1086 Uruguay’s plain packaging legislation was challenged by the Claimant. In line with its long legislative history of tobacco control and treaty obligations under WHO regime, Uruguay adopted this legislation, requiring all cigarette packages to include pictures illustrating the effects of smoking on human health, in addition to textual warnings. In January 2015, the WHO and the WHO’s Framework Convention on Tobacco Control (“FCTC”) Secretariat submitted a request to file a written submission as well as the amicus curiae brief before the ICSID. The Petitioner’s Request refers to the Tribunal’s authority to receive a NDP submission according to Rule 37(2) of the ICSID Arbitration Rules. The WHO is a specialized agency recognized under Article 57 of the UN Charter with the objective of the “attainment by all peoples of the highest possible level of health.” Pursuant to its objective and functions, the WHO works to reduce the global burden of disease and death cause by tobacco. The WHO FCTC Secretariat was created for monitoring the implementation of the Convention and providing technical, legal and financial assistance to Parties in their implementation efforts. In February 2015, the Tribunal determined to allow the filling by the Petitioners in this proceeding. The Procedural Order No. 3 stated: [ . . . ] the Submission may be beneficial to its decision-making process in this case considering the contribution of the particular knowledge and expertise of two qualified entities regarding the matters in dispute. It considers that in view of the public interest involved in this case, granting the Request would support the transparency of the proceeding and its acceptability by users at large.1087

1085  See for example, Glamis v. U.S., Submission of the Quechan Indian Nation, Nature of the Cultural Resources and Sacred Places at Issue in Claim 8–9 Concerning the rights of indigenous peoples and the Decision on Application and Submission by Quechan Indian Nation, Sept. 16, 2005 (available at http://www.italaw.com/sites/default/files/casedocuments/ita0366.pdf); but, see also Patrick Wieland, Why the Amicus Curia Institution is Ill-Suited to address indigenous People’s Rights before Investor-State Arbitration Tribunals: Glamis Gold and the Right of Intervention, 3 Tr. L. & Dev. 334 (2011). 1086  Philip Morris v. Uruguay, ICSID Case No. ARB/10/7, Procedural Order No. 3, Feb. 17, 2015. 1087  Philip Morris v. Uruguay, Procedural Order No. 3, para. 28.

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Despite the Claimant’s objection, the Tribunal concluded that the Submission provided by the WHO and the WHO FCTC Secretariat fulfilled the requirements of Rule 37(2), allowing intervention of non-investment intergovernmental organizations. The final award of Philip Morris v. Uruguay has not been rendered as of December 2015. It remains to be seen to what extent the Tribunal would consider the opinions of the WHO and the FCTC that have professional and special expertise on Tobacco control worldwide. 3.4 Arbitral Tribunals Non-investment aspects of the dispute were rarely invoked in investment arbitration. Yet, investment tribunals have gradually referred to extraneous jurisprudence and rules of other treaty regimes under certain circumstances. In some recent cases, arbitral tribunals address human rights concerns and other human rights-related jurisprudence developed outside of investment regimes. 3.4.1

3.4.1.1

ECtHR Jurisprudence Right to a Court

In the case of Mondev v. U.S., the arbitral tribunal established under the NAFTA recognized the relevance of certain rulings in the ECtHR’s jurisprudence, with regards to the immunities of public authorities before national courts.1088 The Claimant, a Canadian real estate company, argued that the deposition of a contract dispute by the national courts of the U.S. breached relevant NAFTA provisions. When conditions are met, states and states agencies may claim immunities with respect to conduct in the exercise of governmental authority, even if such conduct is or would otherwise be civilly wrongful. It is possible that this form of immunity could interfere with the right to a court. In the course of examining the Claimant’s assertion, the Mondev tribunal took note of several decisions rendered by the ECtHR.1089 In its view, the ECtHR interpreted the right to a court “in an evolutionary way,” and its decisions, provide “guidance by analogy” to determine the “possible scope of NAFTA’s guarantee of ‘treatment in accordance with international law, including fair and equitable treatment and full protection and security’.1090 Interestingly, the

1088  Mondev International Ltd v. United States, ICSID Case No. ARB(AF)/99/2, Award, Oct. 11, 2002 [“Mondev v. U.S.”], paras. 143–144. 1089  The Mondev tribunal referred to the decisions of the Grand Chamber of the ECtHR, Al-Adsani v. U.K.; Fogarty v. U.K., Judgment, App No. 37112/97, ECHR 762, Nov. 21, 2001; McElhinney v. Ireland, Judgment, App. No. 31253/96, ECHR 763, Nov. 21, 2001. 1090  Modev v. U.S., para. 144.

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Mondev Tribunal explicitly quoted the ECtHR ruling in the case of Fogarty v. United Kingdom,1091 stating: [i]t would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1—namely that civil claims must be capable of being submitted to a judge for adjudication—if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.1092 The Tribunal then noted that the conferral of immunity “in ways recognized in international practice” does not interfere with the exercise of right to a court. 3.4.1.2

Meaning of Expropriation

A couple of arbitral tribunals similarly looked for external human rights treaties to examine the meaning of the “expropriation” provision contained in investment treaties, particularly in light of property rights under human rights law. The arbitral tribunal in Ronald Lauder v. Czech Republic found that indirect expropriation was not defined in the Czech Republic-U.S. BIT. In order to gather relevant jurisprudence to define indirect or de facto expropriations, the Lauder tribunal referred to external source of guidelines including the ECtHR case laws. Similarly, both the Tribunals in Tecmed v. Mexico and Azurix v. Argentina carefully considered the ruling of James and Others v. United Kingdom (“James v. U.K.”) rendered by the ECHtR.1093 The Tecmed tribunal introduced the principle of proportionality to determine whether “indirect expropriation” was legitimate within the meaning of the BIT. The Tribunal interpreted this term in light of the relevant ruling of James v. U.K. Here, the Spain-Mexico BIT sets “no principle stating that regulatory administrative actions are per se excluded from the scope of the Agreement, even if they are beneficial to society as a whole—such as environmental protection.” According to the Tribunal, in this case, [ . . . ] in order to determine if they are to be characterized as expropriatory, whether such actions or measures are proportional to the public interest 1091  Fogarty v. U.K., paras. 24–25. 1092  Modev v. U.S., para. 143 (citing Fogarty v. U.K., paras. 24–25) 1093  Técnicas Medioambientales Tecmed S.A. v. United Mexican States, Award, ICSID Case No. 00/2, 43 I.L.M. 29 (May 29, 2003), paras. 121–122; Azurix v. Argentina, para. 311.

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presumably protected thereby and to the protection legally granted to investments, taking into account that the significant of such impact has a key role upon deciding the proportionality.1094 The compensation depended on the proportionality between the needs of public interest and breach of private property rights of the investor to “public interest”. In applying the principle of proportionality to the case, the Tecmed tribunal made an explicit reference to James v. U.K. which observed, Not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim “in the public interest”, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realized.1095 The Tecmed arbitrators further held that the standard of proportionality is not met if the person concerned bears “an individual and excessive burden”. This measure must be “both appropriate for achieving its aim and not disproportionate thereto.”1096 The Tribunal explained its recourse to certain human rights jurisprudence with respect to “indirect de facto” expropriation as follows: [ . . . ] the Arbitral Tribunal has to resolve any dispute submitted to it by applying international law provisions (Title VI.1 of the Appendix to the Agreement), for which purpose the Arbitral Tribunal understands that disputes are to be resolved by resorting to the sources described in Article 38 of the Statute of the International Court of Justice considered, also in the case of customary international law, not as frozen in time, but in their evolution.1097 In its view, the provision contained in the relevant BIT instructed the Tribunal to resolve disputes by applying rules of international law as defined by Article 38 of the ICJ Statute. The Azurix v. Argentina case similarly acknowledged that rulings of the ECtHR could provide “useful guidance for purposes of determining whether 1094  Tecmed v. U.S., para. 122. 1095  James and Others v. United Kingdom, Judgment, App. No. 8793/79 (A/98), ECHR 2 (Feb. 21, 1986)[“James v. U.K.”], para. 50. 1096  As stated in James v. U.K., para. 63. 1097  Tecmed v. U.S., para. 116.

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regulatory actions would be expropriatory and give rise to compensation.”1098 The Claimant of this case allegedly suffered damage due to Argentina’s expropriation of its investment in water and sewage service. Like in Tecmed, the Azurix Tribunal examined the proportionality of Argentina’s expropriatory measures in question by considering ECtHR decisions on the same matter. 3.4.2 ICJ Jurisprudence A large number of investor-state tribunals have applied decisions of the ICJ and its predecessor, the PCIJ.1099 According to one prominent scholar, the ICSID tribunals’ growing references to the ICJ case law may indicate: “international investment law has its roots in general international law, despite its undeniable specificity.”1100 3.4.2.1

Meaning of “Arbitrary”

The ICSID tribunal’s positive attitude towards such introduction is well described in the Azurix v. Argentina case. The parties to the dispute had a disagreement over the meaning of “arbitrary or discriminatory”. In interpreting these terms, The Tribunal is required to consider the ordinary meaning of the terms used in the BIT under Article 31 of the Vienna Convention. The findings of other tribunals, and in particular of the ICJ, should be helpful to the Tribunal in its interpretative task.1101 The Tribunal ultimately found that the definition of arbitrary by the ICJ in ELSI was close to ordinary meaning of arbitrary in the present case.1102 As recognized by the Tribunal, in ELSI, “arbitrariness is not so much something opposed to a rule of law, as something opposed to the rule of law . . . It is willful disregard of due process of law, an act which shocks, or at least surprises, a sense of judicial propriety.”1103 However, a high degree of deferential attitude expressed by the Azurix tribunal is not found in some other cases. 1098  Azurix v. Argentina, para. 311. 1099  Ole Kristian Frauchald, The Legal Reasoning of ICSID Tribunals—An Empirical Analysis, 19 Eur. J. Int’l L. 301, 333 (2008); Alain Pellet, The Case Law of the ICJ in Investment Arbitration, 28 ICSID Rev. 223, 223–224 (2013). 1100  See generally, Pellet (2013), at 240. 1101  Azurix v. Argentina, para. 391. 1102  Azurix v. Argentina, para. 392. 1103  Elettronica Sicula S.p.A. (ELSI)(United States of America v. Italy), ICJ Reports 1989, p. 15 (Jul. 20).

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3.4.2.2

Standard of Compensation

In the context of determining the appropriate standard of compensation, the ADC v. Hungary tribunal explicitly relied on the PCIJ case. In the ADC v. Hungary case established under the Cyprus-Hungary BIT,1104 the Claimant argued that its investment in the operation of a terminal at Budapest airport was expropriated by Hungary. The Tribunal was faced with the issue in determining the adequate standard of compensation to apply to unlawful expropriation. To be more precise, the Tribunal had to determine whether to consider the value of expropriated property on the date of the arbitral award or the date when the expropriation occurred. It found a basis of its reasoning from the decisions of international courts, such as the PCIJ (the ICJ), the Iran-United States Claims Tribunal, and the ECtHR. In particular, the ADC v. Hungary tribunal explicitly referred to the standard of compensation held in the Chorzow Factory case rendered by the PCIJ in 1927. According to the relevant holding of Chorzow Factory, Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.1105 The ADC v. Hungary Tribunal recognized this standard of compensation set out by the PCIJ as constituting well-established customary international law to be applied to the case at hand. Arbitrators further noted this standard has been widely accepted by international tribunals,1106 for example in the cases of S.D. Myers v. Canada,1107 Metalclad Corporation v. Mexico,1108 CMS v. Argentina,1109 and Petrobart Limited v. Kyrgyzstan.1110 According to the final award, as the value of the investment in dispute had increased since the time 1104  A DC Affiliate Limited, ADC & ADMC Management Limited v Republic of Hungary, ICSID Case No. ARB/03/16, Award, Oct. 2, 2006 [“ADC v. Hungary”]. 1105  Case Concerning the Factory at Chorzow (Germany v. Poland), 1928 P.C.I.J. (Series A) No. 17, p. 47. 1106  ADC v. Hungary, paras. 484–490. 1107  S.D. Myers, Inc. v. Canada, UNICTRAL (NAFTA) Award (Merits), Nov. 13, 2000, para. 311. 1108  Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1, Award, Aug. 30, 2000, para. 122. 1109  CMS Gas Transmission Company v. The Argentine Republic, ICSID, Case No. ARB/01/8, Award, May 12, 2005, para. 400 1110  Petrobart Limited v. The Kyrgyz Republic, Arbitration No. 126/2003, Arbitration Institute of the Stockholm Chamber of Commerce (Energy Charter Treaty), Mar. 29, 2005, paras. 77–78.

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of the expropriation, the appropriate standard to be applied was to value the compensation at the date of the arbitral award. The ADC tribunal also referred to the ruling of the ECtHR in quantifying the amount of compensation from the date of an arbitral award, rather than the date of expropriation. 3.4.3 Treaty Interpretation in Light of Article 31(3)(c) of the VCLT Arbitral tribunals have resorted to Article 31(3)(c) of the VCLT in a way of considering external rules of international law that may assist tribunals’ interpretation.1111 The arbitral tribunal in the Iron Rhine Railway1112 explicitly applied Article 31(3)(c) to interpret Article XII of the 1839 Treaty of Separation between Belgium and the Netherlands, as well as Article IV of the Iron Rhine Treaty concluded against the backdrop of the separation of Belgium from the Netherlands in the early nineteenth century. The Iron Rhine is a railway linking the port of Antwerp, Belgium to Germany via the provinces of Noord-Brabant and Limburg of the Netherlands. This case concerned the proper use, restoration and modernization of the railway lines on Dutch territory. On the role of Article 31(3)(c) in interpreting Article XII of the 1839 Treaty of Separation and Article IV of the Iron Rhine treaty (treaty provisions in dispute), arbitrators noted: It is to be recalled that Article 31, paragraph 3, subparagraph (c) of the Vienna Convention on the Law of Treaties makes reference to ‘any relevant rules of international law applicable in the relations between the parties.’ For this reason—as well as for reasons relating to its own jurisdiction—the Tribunal has examined any provisions of European law that might be considered of possible relevance in this case.1113

1111  Azurix Corporation v. Argentina, Decision on Application for Annulment, ICSID Case No. ARB/01/12, Sept. 1, 2009, para. 90; for the PCA’s use of VCLT Article 31(3)(c), see Yukos Universal Ltd. v. Russian Federation, Interim Award on Jurisdiction and Admissibility, PCA Case No. AA 227, Nov. 30, 2009, paras. 260, 309; Veteran Petroleum Ltd v. Russian Federation, Interim Award on Jurisdiction and Admissibility, PCA Case No. AA 228, Nov. 30, 2009, paras. 260, 309; Hulley Enterprises Ltd. v. Russian Federation, Interim Award on Jurisdiction and Admissibility, PCA Case No. AA 226, Nov. 30 2009, paras. 260 and 309; Kardassopoulos v. Georgia, Decision on Jurisdiction, ICSID Case No. ARB/05/18, Jul. 6, 2007, paras. 207–208. 1112  In the Arbitration Regarding the Iron Rhine (IJzeren Rijn) Railway (Belgium v. the Netherlands), Award of the Tribunal of May 24, 2005 [“Iron Rhine Railway”]. 1113  Ibid., para. 58.

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In light of Article 31(3)(c), the Iron Rhine Railway tribunal observed that the provisions of general international law are applicable to the relations between the parties. Further, some rules of international environmental law also had relevance to the relations between the parties. Similarly, the Ioan Micula and others v. Romania tribunal invoked VCLT Article 31(3)(c) to justify its consideration of the UDHR, when interpreting the BIT’s provision concerning the nationality requirements for investors.1114 The parties disagreed as to the role of international law in the Tribunal’s interpretation with respect to nationality. It was held: The Tribunal is of the opinion that in interpreting the BIT, i.e., an instrument between two sovereign States, it may take into account, as directed by Article 31(3)(c) of the Vienna Convention on the Law of Treaties, any relevant rules of international law [ . . . ] Indeed, it is well established that the acquisition of nationality must not be inconsistent with international law.1115 In assessing relevant international rules concerning the acquisition of nationality, the Tribunal considered Article 15 of the UDHR: everyone has the right to a nationality, and no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.1116 3.4.4 Relationship with Public International Law in General In Phoenix v. Czech Republic, the Claimant, an Israeli-based corporation bought two Czech companies while they underwent a national criminal investigation over alleged custom duty evasions. It complained that the lengthy litigation that had continued for a long time even after it acquired ownership of the companies constituted a denial of justice. Challenging jurisdictional ground of the Claimant, the Czech Republic argued that the Claimant was a “sham Israeli entity” with a purpose to gain access to arbitration by way of the IsraelCzech Republic BIT. In light of the relevant facts of the case, the Phoenix tribunal held that Claimant’s purchase the two Czech companies was “simply

1114  Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, Decision on Jurisdiction and Admissibility, ICSID Case No. ARB/05/20, Sept. 24, 2008 [“Ioan Micula and others v. Romania”], paras. 86–88. 1115  Ibid., para. 87. 1116  Ibid., para. 88.

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a rearrangement of assets within a family”. The case was dismissed for lack of jurisdiction; the Claimant did not have a bona fide investment in the host state.1117 In its legal reasoning, the Tribunal affirmed that the ICSID Convention and the BIT cannot be “read and interpreted in isolation from public international law, and its general principles”; it further strengthened its finding by referring to the famous ruling of the WTO Appellate Body in U.S.-Gasoline. The Phoenix tribunal took this one step further, stating that ICSID protection should not be granted to investments made in violation of “the most fundamental rules of protection of human rights,”1118 since these investments are substantially associated with the illegal acts of the investor. The Tribunal specifically identified “torture or genocide or in support of slavery or trafficking of human organs” as the most fundamental rules of human rights or jus cogens. This approach marked a significant development in ICSID jurisprudence with respect to the relevance of human rights consideration in IIA arbitration. States, as well as foreign investors, cannot rely on investment treaties to avoid certain human rights obligations. 3.4.5 Cultural Heritage Protection The relationship between cultural heritage protection and foreign investment regulation was at issue in Parkerings v. Lithuania.1119 The Claimant, a Norwegian corporation in the construction industry, argued that Lithuania had violated the principle of MFN treatment. In its claim, a competing Dutch company had received more favorable treatment with respect to a similar parking construction project. Both foreign companies concluded separate contracts with the local municipality for the construction of integrated parking facilities. In this case, the Tribunal had to determine whether these two parking projects were “in like circumstances” within the meaning of the MFN clause. Making a distinction between both projects, the Parkerings tribunal noted differences in their archaeological and environmental impacts on the historic Old Town. The Old Town, located at the heart of the City of Vilnius, was designated

1117  Phoenix Action Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Apr. 15, 2009 [“Phoenix v. Czech Republic”], para. 34; in its view, “such abusive treaty-shopping is directly at odds with the fundamental object and purpose of the ICSID Convention and the BIT, which are meant to encourage international investment.” 1118  Phoenix v. Czech Republic, para. 78. 1119  Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award, Sept. 11, 2007 [“Parkerings v. Lithuania”], paras. 377–397.

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by UNESCO as a protected administrative region (World Heritage site).1120 The fact that the Claimant’s project significantly extended more into the Old Town was a decisive factor for arbitrators in this case; [ . . . ] the historical and archaeological preservation and environmental protection could be and in this case were, a justification for the refusal of the project. The Potential negative impact of the BP [the Claimant] project in the Old Town was increased by its considerable size and its proximity with the culturally sensitive area of the Cathedral.1121 Accordingly, the Claimant and its competitor were not in like circumstances; the differential treatment by Lithuania against the Claimant was justified. The Tribunal also stated that the site of Claimant’s project was close to the culturally sensitive area. 3.4.6 Access to Water Suez et al. v. Argentina1122 was an investor-state dispute brought in the context of water privatization and Argentina’s controversial policies to protect water supply. Pursuant to the respondent state’s argument and the amicus submissions, Argentina had international obligations to assure its population’s full enjoyment of the rights to water, and Argentina’s human rights obligations implicitly granted regulatory authority to take actions, “in disregard of its BIT obligations.”1123 Emphasizing the close linkage of human rights law with the case, they argued that the Tribunal should consider concurrent human rights obligations in interpreting and applying the provisions of the BITs in question. The Suez Tribunal did not accept the views argued by Argentina and the amicus briefs. It first noted that Argentina was subject to international obligations arising from both human rights and investment treaties. From the 1120  Parkerings v. Lithuania, paras. 381–382. 1121  Parkerings v. Lithuania, para. 392. 1122  Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability, Jul. 30, 2010 [“Suez et al. v. Argentina”]. 1123  Suez et al. v. Argentina, Decision on Liability, para. 262; the Suez Tribunal summarized arguments presented by amicus briefs: human rights law recognizes the right to water and its close linkages with other human rights, including the right to life, health, housing, and an adequate standard of living. Human rights law, the NGOs contend in their submission, required that Argentina adopt measures to ensure access to water by the population, including physical and economic access, and that its actions in confronting the crisis fully conformed to human rights law. Ibid., para. 256.

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Tribunal's perspective, human rights obligations and investment treaty obligations were not “inconsistent, contradictory, or mutually exclusive”; Argentina could have complied with both commitments simultaneously.1124 The Tribunal acknowledged Argentina’s obligations to ensure water supply and the potential role of human rights in investment disputes. In its view, international investment disputes may raise “a variety of complex public and international law questions, including human rights consideration.”1125 However, the Tribunal in Suez et al. v. Argentina did not go further to elaborate on the human rights implications of the case. It also skillfully avoided making a determination on the normative hierarchy between different rules of international law.

1124  Ibid., para. 262. 1125  Suez et al. v. Argentina, Order in response to a petition for transparency and participation as amicus curiae, May 19, 2005, para. 18.

CHAPTER 5

Guidelines for Decision-makers: Human Rights in International Economic Law and Policy A

IEL’s Approaches to Accommodate Human Rights

International human rights and economic regimes interact and conflict across a range of complex legal issues. When tensions and conflicts among different regimes of international law arise, decision-makers are required to make (immediate and/or long-term) policy choices for better resolution of norm collisions. In the midst of growing normative interaction and conflict between these regimes, human rights concerns are often presented to the decisionmakers of IEL regime, raising many questions. The first question is to determine whether competing policy concerns of human rights should be accommodated in the regime of international trade and foreign investment regulation. If positive, the second question arises as to what extent and under which institutional mechanisms human rights could be accommodated in the field of international economic law. As explored, the first inquiry has been answered. The IEL have gradually sought to accommodate human rights concerns to varying extent; there is a broad agreement that under the current international legal order, IEL laws and practices do not exist in vacuum. Against a wider backdrop of examining the IEL’s relationship with “other” international law, Chapter 4 explored how non-IEL policy concerns have been accommodated, incorporated, and reflected in the process of international economic decision-making. Under certain circumstances, what goes on in the external, non-IEL regime can and should be relevant in the operation of IEL regime. The second question may not be explained in simple terms. Depending on the circumstances of which human rights concerns arise, different decision-makers are involved and the accommodation tools available for them vary significantly. This book has highlighted three channels of accommodating external rules, principles, and policy concerns of human rights law in the context of international economic law (See Section C, Chapter 2). 1 Legislative Accommodation There are multiple drafting strategies to address normative relevance of human rights concerns in international economic policy-making. Treaty drafters may © koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004325517_006

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include 1) conflict avoidance clause, 2) exception clause, 3) provision with a direct reference to human rights terms or human rights-related instruments, or 4) provisions establishing certain interpretative principle such as systematic integration, harmonious interpretation or mutual supportiveness. The most ideal means of resolving regime conflict would be actual legislative changes in the terms of future trade and investment agreements to include human rights concerns. Both in the WTO and foreign investment law, it is inconceivable that the states would use conflict avoidance clauses in a way to prioritize non-IEL concerns explicitly. One commonly proposed method of addressing human rights matters is through the use of exceptions. Some exceptions clauses are designed to introduce legitimate human rights-based policy objectives that could justify trade-restrictive measures or expropriation of foreign investment. Nevertheless, the scope of human rights considerations addressed by the existing exception clauses is highly limited; these provisions are created to prevent extreme policy crises and failures such as prison labor, public health emergency, slave trade or trading activities severely undermining public morals of the state. For example, in accordance with GATT Article XX, some human rights objectives may be invoked to justify derogation of trade obligations; WTO Members are allowed to restrict trade in goods when necessary to “protect human, animal, or plant life or health” (sub-provision (b)), and importing “products of prison labour” (sub-provision (e)) may be prohibited. Depending on how one interprets the meaning and scope of sub-provision (a), the public morals exception can also be used to address human rights issues in trade regulation. A majority of states remains skeptical or cautious about including a direct reference to human rights terms in IEL treaties. In multilateral setting, the direct invocation of human rights concern was made in the form of WTO Waiver concerning two situations. One was the decision adopted by the General Council on the Waiver concerning the Kimberley Process Certification Scheme for Rough Diamonds. The other was the General Council decision on the implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. However, the mandate of the current WTO regime primarily aims at trade liberalization and deregulation for eliminating trade barriers. Under the multilateral setting, it is also harder and takes longer time to include new negotiation agenda or amend rules contained in the existing package. Expectedly, attempts to add human rights provisions or engage in rule amendment that can introduce human rights issues would not be successful at least in a short run. More promising legislative initiatives are found in some of the recent regional and bilateral arrangements; states address a wider range of domestic

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policy concerns in relation to trade and investment regulation. As discussed, in concluding regional and bilateral IEL treaties, some states have included provisions recognizing human rights conditionality to trade, trade-restrictive affirmative actions designed to remedy previous racial discrimination, and the special measures for the purpose of protecting specific indigenous populations. Except in the case of WTO regime where basic rules and principles of interpretation are written in the DSU, most regional and bilateral IEL treaties stipulate interpretative principles in broader terms. With or without explicit provisions for treaty interpretation in the treaty, the VCLT which codifies customary international law in this area, may be applicable. In light of relevant VCLT provisions, particularly 31(3)(c), non-IEL rules may be relevant in interpreting terms of IEL treaties under certain circumstances. 2 Administrative Accommodation Administrative accommodation must be a two-way street. UN human rights organs and human rights treaty bodies have argued for the centrality and primacy of human rights obligations in all areas of economic governance. In the forms of General Comments, Concluding Observations, policy papers, and expert studies, they have proposed various ways to introduce the relevance of human rights obligations for international economic policymaking. The focus of their proposals has been at the human rights implications of various economic regulations such as trade in goods and services, intellectual property protection, financial and investment regulation. They have strongly suggested that states should conduct human rights assessment not only in negotiating, but also in implementing rules of IEL treaties. The impact of free trade and foreign investment regime on the right to food, health, or water has been analyzed by relevant human rights treaty bodies. Some treaty bodies have also examined the human rights implications of IEL treaties for the specific groups such as women and children. At the same time, IEL institutions have shown growing interests in considering human rights dimension of trade and investment regulation. The WTO Secretariat has collaborated with the relevant UN human rights agencies and other intergovernmental organizations such as the FAO, the ILO, the UNESCO and the WHO. The Secretariat allowed some human rights experts to perform their external missions to the WTO, concerning issues at the intersection of trade and human rights; it also submitted observation reports on the human rights implications of its works. In several occasions, the Special Rapporteurs and Special Representatives under UN-based mandates submitted their findings at the WTO Ministerial Conference, addressing human rights implications of trade liberalization. In the context of investment law, there is no specialized institutional foundation that could facilitate the human rights—investment

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discussion; no single, multilateral investment treaty regime currently exists. As explored, international organizations such as the IMF, the OECD, the UNCTAD, and the World Bank have produced policy papers recognizing the relevance of human rights to foreign investment regulation. The IEL institutions have been less interested in developing institutional practices to examine human rights implications of trade and foreign investment. Among the existing mechanisms under the WTO, the potential channels to assess human rights implications of trade may be the TPRM mechanism and the WTO Council for Trade in Services. A more innovative forum must be institutionalized to monitor IEL policies in light of human rights concerns. States could also create special committees or working groups with the specific mandate of facilitating policy cooperation with other international bodies in human rights field. Adjudicatory Accommodation—Practices by the WTO Dispute Settlement Bodies and Investment Tribunals The interaction and conflict between IEL and other policy objectives are frequently presented in the IEL disputes. While not all techniques are practically useful to deal with regime conflict between international human rights and economic law regimes, existing rules of conflict resolution and treaty interpretation may provide some strategies for courts and tribunals (See Section B-1, Chapter 4). According to the principle of lex superior, rules from a higher law prevail over rules from a lower source. The lex superior principle is not well suited to addressing conflicts between norms deriving from the same source and having equal status; this principle would be applicable only when the conflicting rules have different legal status. Like all other properly concluded international agreements, treaties contained in international human rights and economic law regimes have equal legal significance and are equally binding, as they are derived from an identical source, namely the consent of sovereign states. In principle, therefore, conflicts between these treaty regimes cannot be resolved as a simple matter of normative superiority. Nevertheless, the jus cogens or peremptory norm from which no derogation is permitted creates a notable exception. As examined earlier, it is widely accepted that the jus cogens norms are strongly associated with some rules of human rights protection. Arguably, certain human rights norm with peremptory status may prevail over conflicting treaty rules. Although the lex posterior and lex specialis are traditional conflict resolution techniques recognized in international law, both rules are not useful to address norm conflict between two different international regimes. One reason for this is due to the “same subject matter” requirement in both rules. These conflict 3

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resolution strategies are applicable only in a situation in which two rules are relating to the same subject matter. Compared to foregoing options, the principle of systemic integration, as expressed in VCLT Article 31(3)(c) better serves the purpose of resolving norm conflicts between two or more specialized treaty regimes. This sub-provision requires judges and arbitrators to systematically interpret rules against the broader backdrop of the international legal order. Article 31(3)(c) has been cited as a possible tool for reconciling international human rights norms in the areas of trade and foreign investment law. Indeed, it is the only codified interpretative principle that explicitly refers to the relevance of external rules of international law. The spirit of this sub-provision is in line with recent development of international adjudication. The interpretative role of international courts and tribunals does not stop at the mechanical and automatic application of treaty rules and principles to the facts. Rather, they actively identify relevant rules for settling disputes and elaborate on the meaning of rules according to the particular context involved in the case brought before them. They are encouraged to elaborate the meaning of the relevant terms in the context of development of international law. Viewed in this light, Klabber boldly asserts that the interpretation is “the continuation of treaty negotiations by other means,”624 recognizing a wide-ranging role of interpretation in shaping international legal order. IEL courts and tribunals are encouraged to make efforts to avoid or resolve a wider range of potential conflicts between international economic law and other substantive fields of international law. In practice, however, the role of human rights in WTO dispute settlement and investment arbitration seems marginal at best; the reference to human rights norms has been “sparse and infrequent.”625 Compared to other non-trade and non-investment concerns such as environmental protection,626 neither the disputing parties nor the adjudicators are willing to address the human rights concerns in the IEL disputes explicitly. As discussed, the WTO DSB is a court of specialized jurisdiction; its jurisdictional scope is confined to trade disputes concerning the alleged violations of substantive rights and obligations contained in the WTO Agreements. The Panel and the Appellate Body have found themselves lacking the needed authority to examine the possible breach of substantive human rights standards. Nevertheless, in resolving WTO disputes, human rights concerns may 624  Klabbers (2005). 625  Reiner & Schreuer (2009), at 82. 626  Jorge E. Vinuales, Foreign Investment and the Environment in International Law 18 (Cambridge University Press, 2012).

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be addressed, for example, in the context of interpreting general exceptions clauses. WTO Members have a right to deviate from existing trade commitments if trade-restrictive measures in question were necessary to protect nontrade objectives defined in the exceptions clauses. The WTO Panel and the Appellate Body have had some opportunities to examine whether the traderestrictive measures allegedly designed to protect non-trade policies could be justified under general exceptions of the relevant WTO Agreements. In these cases, the WTO DSB has dealt with the complex relationship between trade rules and non-trade policies with respect to environment and sanitary regulation, domestic control of gambling, audiovisual publications, and seal products. Issues of freedom of expression and the rights of indigenous populations were indirectly raised by the parties to the dispute, but did not have any significant bearing on the final outcome of the cases (See Section B-2, Chapter 4). With respect to investor-state arbitration (See Section B-3, Chapter 4), the first way of invoking human rights is through the claims of foreign investors. Secondly, the host state, as a respondent, may invoke human rights concerns in the form of counter-claims. The respondent country typically uses human rights arguments to defend its measures that allegedly violate substantive obligations of investment law. Lastly, the amicus submission may introduce human rights concerns in investment proceedings. The non-disputing parties have to file a request to make a written submission before the relevant investment tribunal. Arbitral tribunals refer to human rights terms when assessing human rights claims and arguments raised by investor claimants, respondent states and non-disputing parties. After examining attempts to introduce human rights concerns, arbitral tribunals ultimately determine to what extent these considerations can be reflected into their arbitral awards. While arbitrators generally do not have jurisdiction to rule that a human rights norm has been violated, they may be called upon to examine a state’s human rights obligations. The arbitral tribunals examined human rights concerns in the investorstate disputes involving access to water in Bolivia, Argentina, and Tanzania, affirmative action designed to remedy prior racial discrimination under the apartheid regime in South Africa, and anti-tobacco legislation in Uruguay. Some arbitrators dealt with the competing interests between investor rights under investment law, and the domestic measures designed to protect cultural heritage pursuant to the UNESCO regime. Clashes between investment and human rights obligations of the state was also raised in assessing national measures relating to land reform in consideration with the lives of indigenous populations. In other cases, arbitral tribunals occasionally make use of human rights jurisprudence in order to support their interpretation of certain terms at issue; they look at how these terms have been interpreted by non-investment

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courts such as the ICJ and the ECtHR. In this way, human rights jurisprudence can be used to clarify rights and obligations of the parties under relevant IIAs. However, with only a few exceptions, most investment tribunals have declined to assess the relevance of external human rights treaties and the state’s obligations under these instruments. Human rights concerns have never formed an explicit basis to justify certain derogation of investment obligations. No investment tribunal has reduced the amount of compensation explicitly due simply to a significant human rights violation committed by either party. B

Concluding Remarks

One can barely assert an idea of homogenous international law. International law is “full of universal, regional or even bilateral systems, subsystems and subsubsystems of different levels of legal integration.”627 Under this decentralized normative structure, it is not uncommon to see states enter into conflicting treaty obligations, and that multiple international courts produce inconsistent jurisprudence in the absence of any universal appellate system that would facilitate the coherent development of international law. The challenge that this normative structure produces, however, must be regarded “as an opportunity rather than a problem.”628 Regime conflict is not confined to a simple incident resulting from the incompatibility between varying rules of international law, or a problem in coordination among multiple law application agencies. Conflicts between international regimes are deeply rooted in the divergent, and often competing, policy priorities and societal goals set forth by a wide variety of stakeholders in the international community. This book has examined how different sub-branches of international law interact and conflict over the issues of global concerns. It has primarily focused on the relationship between international human rights and economic regimes, particularly on the way in which human rights concerns are accommodated, incorporated, and reflected in the course of international economic 627  Gerhard Haftner, Risks ensuing from Fragmentation of International Law, ILC Report on the work of its 52nd Session, Official Records of the General Assembly, 55th Session, Supplement No.10 (A/55/10)(2004); in this feasibility study which later prompted the ILC to examine the fragmentation of international law, Hafner points out that “the system of international law consists of erratic parts and elements which are differently structured”. Ibid., at 321. 628  Rosalyn Higgins, A Babel of Judicial Voices? Ruminations from the Bench, 55 Int’l & Comp. L.Q. 791, 804 (2006).

Guidelines for Decision-makers

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policymaking. While numerous international law scholars and practitioners have proposed their own answers to the question of how to ensure the coexistence of international human rights and economic law and policy in a better way, no answer to this question will likely ever be final, since new developments in international law and practices will require continual reexamination of our question. Some parts of the legal problems in regime conflict (e.g. a country incapable to comply with the two conflicting treaty obligations—separately and simultaneously arising—under a particular circumstance) between the two fields may resolve, for example, if future multilateral trade negotiations as well as new generations of investment treaties create more explicit means of accommodating relevant human rights concerns, and if, when applicable, the IEL adjudicators are permitted or encouraged to use human rights norms as the guiding framework in developing their jurisprudence. States are strongly urged to establish better national policies in furtherance of reconciling coexisting legal obligations under both international regimes. They should also allocate limited domestic resources wisely, aiming at complying with both sides of treaty commitments. Apart from analyzing legal aspects of regime conflict between the two fields of law, it is worth emphasizing that prolonged failures to address human rights concerns in the IEL regime have contributed to adversely affecting living conditions of the vulnerable groups of people in many parts of the world— particularly in developing and the least-developed countries. Rising concerns regarding human rights—trade and human rights—investment linkages are strongly associated with the grave human rights violations in these countries. The seemingly “extraneous” human rights narratives can and should assist IEL decision-makers in understanding more about intense real-life struggles in the international community which altogether underpin the fundamental background of regime conflict. Importantly, to render more legitimate and wellinformed decisions, the IEL adjudicators should be allowed to have access to multifaceted aspects of the disputes before them (e.g. non-party participation in the court proceedings). My claims do not suggest that the current international economic regime can provide, if it exists, a master key to address any kind of human rights matters. Nevertheless, while the IEL’s primary objective is to protect economic interests of the stakeholders involved, it cannot ignore the existence of wider human rights interests of people in the domestic lives of each country. In the midst of vexing problems of regime conflict, international and domestic policymakers must continue their tasks to accommodate human rights in international economic law and policy—within and sometimes, beyond the limitations and possibilities of the current system.

Selected Bibliography Books and Book Chapters Abbott, Frederick M., Christine Breining-Kaufmann and Thomas Cottier (eds.), International Trade and Human Rights: Foundations and Conceptual Issues (The University of Michigan Press, 2006). Abi-Saab, Georges, The Appellate Body and Treaty Interpretation in The WTO at Ten— The Contribution of the Dispute Settlement System (Georgio Sacerdoti, Alan Yanovich and Jan Bohanes eds., Cambridge University Press, 2006). Alston, Philip, The Historical Origins of the Concept of “General Comments” in The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (Laurence de Boisson de Chazournes and Vera Gowland-Debbas eds., Martinus Nijhoff Publishers, 2001). Alston, Philip and Ryan Goodman, International Human Rights (Oxford University Press, 2013). Alvarez, Jose, The Factors Driving and Constraining the Incorporation of International Law in WTO Adjudication in The WTO: Governance, Dispute Settlement and Developing Countries (Merit E. Janow, Victoria Donaldson and Alan Yanovich eds., Juris Publishing, 2008). Alvarez, Jose E., International Organizations as Law-makers (Oxford University Press, 2009). Alvarez, Jose E., The Public International Law Regime Governing International Investment (The Hague Academy of International Law, 2011). America Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987). Andreas F. Lowenfeld, International Economic Law (Oxford University Press, 2008). Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005). Arndt, Heinz W., The Economic Lessons of the Nineteen-Thirties (Oxford University Press, 1944). Auroi, Claude and Aline Helg (eds.), Latin America 1810–2010, Dreams and Legacies (Imperial College Press, 2011). Aust, Anthony, Modern Treaty Law and Practice (Cambridge University Press, 2007). Austin, Michael R., Negotiating with Imperialism: The Unequal Treaties and the Culture of Japanese Diplomacy (Harvard University Press, 2004). Barker, Ernest, George Clark, and Paul Vaucher (eds.), The European Inheritance Vol. II (Oxford University Press, 1956).

326

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Bartels, Lorand, Human Rights Conditionality in the EU’s International Agreements (Oxford University Press, 2005). Bederman, David J., The Hague Peace Conferences of 1899 and 1907 in International Courts for the Twenty-First Century (Mark W. Janis ed., Martinus Nijhof Publishers, 1992). Bederman, David J., The Spirit of International Law (The University of Georgia Press, 2002). Benedek, Wolfgang, Cerrutti Arbitrations in Encyclopedia of International Law, Vol. I (1992). Berlin, Isaiah, Two Concepts of Liberty: An Inaugural lecture delivered before the University of Oxford, on 31 October 1958 (Clarendon Press, 1959). Birnie, Patricia and Alan Boyle, International Law and the Environment (Oxford University Press, 2002). Blix, Hans and Jirina Emerson (eds.), The Treaty Maker’s Handbook (Oceana Publications, 1973). Blumenwitz, Dieter, Treaties of Friendship, Commerce and Navigation in Encyclopedia of Public International Law IV (Rudolf Bernhardt ed., North-Holland Publishing, 2000). Boerefijn, Ineke, The Reporting Procedure under the Covenant on Civil and Political Rights—practice and procedures of the Human Rights Committee (Intersentia, 1999). Borchard, Edwin, Diplomatic protection of citizens abroad (Banks Law Publishing Co., 1915). Boyle, Alan and Christine Chinkin, The Making of International Law (Oxford University Press, 2007). Brierly, James L., The Shortcomings of International Law, reprinted in James L. Brierly, The Basis of Obligations in International Law and Other Papers (Hersch Lauterpacht and C.H.M. Waldock eds., Oxford University Press, 1958). Brownlie, Ian, Problems Concerning the Unity of International Law, in International Law in the Time of its Codification. Essays in Honour of Robert Ago Vol. I (Robert Ago ed., Dott A. Giuffre, 1987). Brownlie, Ian, Comment in Change and Stability in International Law-Making (Antonio Cassese and J.H.H. Weiler eds., De Gruyter, 1988). Brownlie, Ian, Principles of Public International Law (Oxford University Press, 7th ed., 2008). Brown, William A., The United States and the Restoration of World Trade: An Analysis and Appraisal of the ITO Charter and the General Agreement on Tariffs and Trade (Brookings Institute, 1950).

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Cassese, Antonio, Progressive Transnational Promotion of Human Rights in Human Rights: Thirty Years After the Universal Declaration (Bertrand G. Ramcharan ed., Martinus Nijhoff Publishers, 1978). Cassese, Antonio, International Law (Oxford University Press, 2nd ed., 2005). Cassimatis, Anthony, Human Rights Related Trade Measures under International Law (Martinus Nijhoff Publishers, 2007). Celano, Bruno, Norm Conflicts: Kelsen’s View in the Late Period and a Rejoinder, in Stanley L. Paulson and Bonnie Litschewski Paulson (eds.), Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford University Press, 2001). Clapham, Andrew, Brierly’s Law of Nations (Oxford University Press, 7th ed., 2012). Clough, Shepard B. and Charles W. Cole, Economic History of Europe (Heath & Co., 1947). Chen, Lung-chu, An Introduction to Contemporary International Law: A Policyoriented Perspective (Yale University Press, 2nd ed., 2000). Condliffe, John Bell, The Commerce of Nations (Norton, 1950). Conrad, Christiane R., Process and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social Goals (Cambridge University Press, 2014). Cottier, Thomas, Joost Pauwelyn, and Elisabeth Bürgi, Linking Trade Regulation and Human Rights in International Law: An Overview in Human Rights and International Trade (Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi eds., Oxford University Press, 2005). Crawford, James, The International Law Commission’s Articles on State Responsibility, Introduction, Text and Commentaries (Cambridge University Press, 2002). Crawford, James and Penelope Nevill, Relations between International Courts and Tribunals: The ‘Regime Problem’ in Regime Interaction in International Law Facing Fragmentation (Margaret A. Young ed., Cambridge University Press, 2012). De Schutter, Olivier, International Human Rights Law: Cases, Materials, Commentary (Cambridge University Press, 2010). Diebold, William, The End of ITO, Essays in International Finance Section, Department of Economics and Social Institutions (Princeton University, 1952). Diggelmann, Oliver, The Periodization of the History of International Law in Oxford Handbook of the History of International Law (Bardo Fassbender and Anne Peters eds., Oxford University Press, 2012). Dolzer, Rudolf and Christoph Schreuer, Principles of International Investment Law (Oxford University Press, 2008). Donnelly, Jack, International Human Rights: Universal, Relative or Relatively Universal? in International Human Rights Law: Six Decades after the UDHR and Beyond (Mashood A. Baderin and Manisuli Ssenyonjo eds., Ashgate, 2013).

328

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Douglas A. Irwin, The GATT’s Contribution to Economic Recovery in Post-War Western Europe, National Bureau of Economic Research (NBER) Working Paper 4944 (December 1994). Daniel Drache, Daniela and Lesley A. Jacobs (eds.), Linking Global Trade and Human Rights (Cambridge University Press, 2014). Dunn, Frederick Sherwood, The Protection of Nationals: A Study in the Application of International Law (The Johns Hopkins Press, 1932). Dunn, Frederick Sherwood, The Diplomatic Protection of Americans in Mexico (Columbia University Press, 1933). Dunoff, Jeffrey L. and Joel P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009). Dupuy, Pierre-Marie, Ernst-Ulrich Petersmann and Francesco Francioni (eds.), Human Rights in International Investment Law and Arbitration (Oxford University Press, 2009). Dupuy, Pierre-Marie, L’unité de l’ordre juridique international: cours général de droit international, 2000 (Hague Academy of International law, 2003). Dupuy, Pierre-Marie and Jorge E. Vinuales, Human Rights and Investment Disciplines: Integration in Progress in International Investment Law (Marc Bungenberg, Jojn Griebel, Stephan Hobe and August Reinisch eds., Nomos, 2012). Eckermann, Johann Peter, Conversation of Goethe, Wednesday, March 28 1827, 175 (John Oxenford transl., Da Capo Press, 1998). Espiell, H. Gros, The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches in Human Rights: Thirty Years After the Universal Declaration (Bertrard G. Ramcharan ed., Martinus Nijhoff Publishers, 1979). Esquirol, Jorge L., Latin America, in The Oxford Handbook of the History of International Law (Bardo Fassbender and Anne Peters ed., Cambridge University Press, 2012). Fatouros, Arghyrios A., Participation of the “New” States in the International Legal Order of the Future in The Future of International Legal Order Vol. I (Richard Falk and Cyril E. Black eds., Princeton, 1969). Falk, Richard, The Interplay of Westphalia and Charter Conceptions of International Order in The Future of International Legal Order, vol. I, Trends and Patterns (Richard Falk and Cyril E. Black eds., Princeton University Press, 1969). Falk, Richard, Law in an Emerging Global Village: A Post-Westphalian Perspective (Transnational Publishers, 1998). Fitzmaurice, Gerald, Second Report on the Law of Treaties, Yearbook of International Law Commission (1963). Frank, Thomas, The Empowered Self—Law and Society in the Age of Individualism (Oxford University Press, 1999).

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Frowein, Jochen A., Jus Cogens in Encyclopedia of Public International Law Vol. III (Rudolf Bernhardt ed., North-Holland Publishing, 1997). Galtung, Johan, Peace by Peaceful Means: Peace and Conflict, Development and Civilization (International Peace Research Institute, 1996). Garcia-Amador, F.V., International Responsibility: Special Rapporteur’s Report, Yearbook of International Law Commission (1956). Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals (Stevens & Sons, 3rd ed., 1957). Gibson, William Marion, Aliens and the Law (University of North Carolina Press, 1940). Giddens, Anthony, The Consequence of Modernity (Stanford University Press, 1990). Grewe, Wilhelm, Epochen der Volkerrechts geschichte, The Epochs of International Law (Michael Byers (transl.) (Walter de Gruyter Berlin, 2000). Gulick, Edward Vose, Europe’s Classical Balance of Power (Cornell University Press, 1955). Heaton, Herbert, Economic History of Europe (Harper & Brothers, 1948). Henkin, Louis, The Age of Rights (Columbia University Press, 1990). Higgins, Rosalyn, Conflict of Interests: International Law in a Divided World (Dufour Editions, 1965). Higgins, Rosalyn, Problems and Process: International Law and How We Use it (Oxford University Press, 1995). Higgins, Rosalyn, The Continuing Universality of the Universal Declaration of Human Rights in Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Peter R. Baeher, Cees Flinterman and Mignon Senders eds., Royal Netherlands Academy of Arts and Sciences, 1999). Hirsh, Mosche, Interactions between Investment and Non-Investment Obligations in International Investment Law in The Oxford Handbook of International Investment Law (Ortino Muchlinski and Christoph Schreuer eds., Oxford University Press, 2008). Hirsh, Mosche, Investment Tribunals and Human Rights: Divergent Paths in Human Rights and International Investment Law and Arbitration (Pierre-Marie Dupuy, Ernnst-Ulrich Petersmann and Francesco Francioni eds., Oxford University Press, 2009). Hobsbawm, Eric, Age of Extremes: The Short Twentieth century, 1914–1991 (Abacus, 1994). Hobsbawm, Eric, The Age of Revolution: 1789–1948 (Vintage Books, 1996). Hoekman, Bernard and Michel Kostecki, The Political Economy of the World Trading System: The WTO and Beyond (Oxford University Press, 2001). Hoekman, Bernard M., Philip English and Aaditya Mattoo, Development, Trade, and the WTO: A Handbook (World Bank Publications, 2002).

330

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Holsti, Kalevi J., Peace and War: Armed Conflicts and International Order, 1648–1989 (Cambridge University Press, 1991). Howse, Robert and Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the Word Trade Organization in Rights and Democracy (Hugo Stokke and Arne Tostensen eds., The Millennium ed., 2001). Hudson, Manley O., International Tribunals: Past and Future Vol. I (Carnegie Endowment for International Peace and Brookings Institution, 1944). Hunt, Lynn, Inventing Human Rights: A History (W.W. Norton & Co., 2007). Hurrell, Andrew, International Society and the Study of Regimes: A Reflective Approach, in Regime Theory and International Relations (Volker Rittberger ed., Clarendon Press, 1993). Irwin, Douglas, Against the Tide: An Intellectual History of Free Trade (Princeton University Press, 1996). Irwin, Douglas A., Political Economy and Peel’s Repeal of the Corn Laws in The Rise of Free Trade Vol. 4 (Cheryl Schonhardt-Bailey ed., Routledge, 1997). Isaak, Robert A., Managing World Economic Change: International Political Economy (Prentice Hall, 3rd ed., 2000). Ishay, Micheline R., The History of Human Rights: From Ancient Times to the Globalization Era (University of California Press, 2004). Jackson, John H., World Trade and the Law of GATT (Bobbs-Merrill Company, 1969). Jackson, John H., Justice Feliciano and the WTO Environmental Cases: Laying the Foundations of a ‘Constitutional Jurisprudence’ with Implications for Developing Countries in Law in the Science of Human Dignity (Steve Charnovitz, Debra P. Steger and Peter van den Bossche eds., Cambridge University Press, 2005). Jackson, John H., Reflections on the Possible Research Agenda for Exploring the Relationship between Human Rights Norms and International Trade Rules in International Trade and Human Rights: Foundations and Conceptual Issues (Frederick M. Abbott, Christine Breining-Kaufmann and Thomas Cottier eds., The University of Michigan Press, 2006). Jenks, C. Wilfred, The Common Law of Mankind (Frederick A. Praeger, 1958). Jenks, C. Wilfred, The Prospects of International Adjudications (Stevens & Sons, 1964). Jenks, C. Wilfred, A New World of Law? A Study of the Creative Imagination in International Law (Longmans, 1968). Jennings, Robert and Arthur Watts (eds.), Oppenheim’s International Law Vol. I (Longman, 9th ed., 1992). Joseph, Sarah, David Kinley, and Jeff Waincymer (eds.), The World Trade Organization and Human Rights: Interdisciplinary Perspectives (Edward Elgar, 2009). Joseph, Sarah, Trade Law and Investment Law in Dinah Shelton (ed.), Oxford Handbook of International Human Rights Law (Oxford University Press, 2013).

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Joseph, Sarah, Blame it on the WTO? A Human Rights Critique (Oxford University Press, 2011). Johnson, Paul, Modern Times (Harper Perennial, 2001). Johnson Jr., O. Thomas and Jonathan Gimblett, From Gunboats to BITs: The Evolution of Modern International Investment Law, Yearbook on International Investment Law & Policy 2010–2011 (Oxford University Press, 2012). Jouannet, Emmanuelle, The Liberal-Welfarist Law of Nations: A History of International Law (Cambridge University Press, 2012). Karl, Wolfram, Conflicts between Treaties in Encyclopedia of Public International Law, Vol. IV (Rudolph Bernhard ed., North-Holland Publishing, 1992). Keller, Alexis, Debating Cooperation in Europe from Grotius to Adam Smith in International Cooperation: The Extents and Limits of Multilateralism (I. William Zartman and Saadia Touval eds., Cambridge University Press, 2010). Kindleberger, Charles P., The World in Depression 1919–1939 (The University California Press, 1986). Kindleberger, Charles P., The Rise of Free Trade in Western Europe in International Political Economy: Perspectives on Global Power and Wealth (Jeffry A. Friedman and David A. Lake eds., Routledge, 1995). Klein, Eckhart, International Regimes in Encyclopedia of Public International Law (Rudolf Bernhardt ed., North-Holland Publishing, 1995). Krasner, Stephen D., Structural Causes and Regime Consequences: Regimes as Intervening Variables in International Regimes (Stephen D. Krasner ed., Cornell University Press, 1983). Kratochwil, Friedrich V., Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge University Press, 1989). Lauren, Paul Gorden, The Evolution of International Human Rights: Visions Seen (University of Pennsylvania Press, 2003). Lauterpacht, Elihu, Aspects of the Administration of International Justice (Cambridge University Press, 1991). Lauterpacht, Hersch, The Function of Law in the International Community (The Clarendon Press, 1933). Lauterpacht, Hersch, An International Bill of Rights of Man (Columbia University Press, 1945). Lesaffer, Randall, International Law and its History: The Story of an Unrequited Love in Time, History and International Law (Matthew Craven, Malgosia Fitzmaurice and Maria Vogiatzi eds., Martinus Nijhoff Publishers, 2007). Lipson, Charles, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (University of California Press, 1985).

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Lillich, Richard B., The Human Rights of Aliens in Contemporary International Law (Manchester University Press, 1984). Locke, John, Second Treatise of Government (1690). Lorimer, James, The Institute of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities, Vol. I (W. Blackwood and Sons, 1883). Lowe, Vaughan, International Law (Oxford University Press, 2007). Lowenfeld, Andreas F., International Economic Law (Oxford University Press, 2008). McDougal, Myres S., Harold D. Lasswell and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (Yale University Press, 1980). McGrady, Benn, Trade and Public Health: The WHO, Tobacco, Alcohol and Diet (Cambridge University Press, 2011). McNair, Arnold D., The Law of Treaties (Oxford University Press, 1961). McWhinney, Edward, Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court (Martinus Nijhoff Publishers, 1991). Mills, Alex, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law (Cambridge University Press, 2009). Mosler, Hermann, International Law as a Legal Community (Sijthoff & Noordhoff, 1980). Neff, Stephen C., A Short History of International Law in International Law (Malcolm D. Evans ed., Oxford University Press, 2006). Nijman, Janne E., Minorities and Majorities in Oxford Handbook of the History of International Law (2012). Nussbaum, Arthur, A Concise History of the Law of Nations (Macmillan, 1954). Parry, Clive (ed.), Consolidated Treaty Series, Vol. 1 (Oceana Publications, 1969). Pascua, Esther, Peace Among Equals (Cambridge University Press, 2008). Paulsson, Jan, Denial of Justice in International law (Cambridge University Press, 2005). Pauwelyn, Joost, Conflict of Norms in Public International Law. How WTO Law Relates to other Rules of International Law (Cambridge University Press, 2003). Pauwelyn, Joost, Fragmentation of International Law in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., Oxford University Press, 2006). Phillipson, Coleman, The International Law and Customs of Ancient Greece and Rome (originally published in 1911)(W.S. Hein, 2001). Pogge, Thomas, Matthew Rimmer & Kim Rubenstein (eds.), Incentives for Global Public Health: Patent Law and Access to Essential Medicines (Cambridge University Press, 2010). Postan, Cynthia, Trade and Industry in the Middle Ages, in The Cambridge Economic History of Europe Vol. II: Trade and Industry in the Middle Ages (Edward Miller, Cynthia Postan and M.M. Postan eds., Cambridge University Press, 1987).

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Pound, Roscoe, Philosophical Theory and International Law, Lecture delivered in the University of Leiden in Bibliotheca Visseriana Dissertationvm IVS Internationale Illvstrantivm (Lvgdvni Batavorvm Apvd E.J. Brill, 1923). Puchala, Donald J. and Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis in International Regimes (Stephen D. Krasner ed., Cornell University Press, 1983). Pulkowski, Dirk, The Law and Politics of International Regime Conflict (Oxford University Press, 2014). Purcell, Victor, The Boxer Uprising: A background study (Cambridge University Press, 1963). Pustogarov, V.V., Our Martens: F.F. Martens, International Lawyer and Architect of Peace (W.E. Butler translation, 2000). Price, Richard, Political Writings in Cambridge Texts in the History of Political Thought (David Oswald Thomas ed., Cambridge University Press, 1992). Malanczuk, Peter, Akehurst’s Modern International Law (Routledge, 7th rev. ed., 1997). Magnusson, Lars, Mercantilism: The Shaping of an Economic Language (Routledge, 1994). Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Human Rights Law: Six Decades after the UDHR and Beyond (Mashood A. Baderin and Manisuli Ssenyonjo eds., Ashgate, 2013). Maogoto, Jackson Nyamuya, War Crimes and Realpolitik (Lynne Rienner, 2004). Marx, Karl, On the Question of Free Trade, Speech Delivered by Karl Marx before the Democratic Association of Brussels, January 9, 1848 in Karl Marx, The Poverty of Philosophy (Digireads.com, 2012) (originally published in 1847). McDougal, Myres S., Harold D. Lasswell and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (Yale University Press, 1980). McKeown, Timothy J., The Politics of Corn Law Repeal and Theories of Commercial Policy in The Rise of Free Trade Vol. 4 (Cheryl Schonhardt-Bailey ed., Routedge, 1997). Meade, James Edward, The Economic Basis of a Durable Peace (George Allen & Unwin Ltd., 1940). Meckenstock, Cordula A., Investment Protection and Human Rights Regulation; Two Aims in a Relationship of Solvable Tension (Nomos, 2010). Mendez, Ruben P., Peace as a Public Good in Global Public Goods: International Cooperation in the 21st Century (Inge Kaul, Isabelle Grunberg and Marc A. Stein eds., Oxford University Press, 1999). Mielle Bulterman, Human Rights in the Treaty Relations of the European Community: Real Virtues or Virtual Reality? (Intersentia, 2001). Miles, Kate, The Origins of International Investment Law (Cambridge University Press, 2013).

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Minogue, Kenneth, The History of the Ideas of Human Rights in the Human Rights Reader (Walter Laqueur and Barry Rubin eds., Meridan, 1977). Mitchell, Nancy, The danger of dreams: German and American imperialism in Latin America (The University of North Carolina Press, 1999). Montesquieu, The Sprit of the Laws (1750) (Anne M. Cohler, Basia C. Miller and Harold S. Stone eds., Cambridge University Press, 1989). Morvay, Werner, Unequal Treaties in Encyclopedia of Public International Law, Vol. 7 (Rudolf Bernhardt ed., North-Holland Publishing, 1984). Moyn, Samuel, The Last Utopia: Human Rights in History (The Belknap Press of Harvard University Press, 2010). Neufeld, Hans, The International Protection of Private Creditors form the Treaties of Westphalia to the Congress of Vienna (1648–1815): A Contribution to the History of the Law of Nations (A.W. Sijthoff, 1971). Newcombe, Andrew and Lluis Paradell, Law and Practice of Investment Treaties (Kluwer Law International, 2009). Offutt, Milton, The Protection of Citizens Abroad by the Armed Forces of the United States (The Johns Hopkins Press, 1928). Petersmann, Ernst-Ulrich, The WTO and Regional Trade Agreements as Competing Fora for Constitutional Reforms: Trade and Human Rights in Regional Trade Agreements and the WTO Legal System (Lorand Bartels and Federico Ortino eds., Oxford University Press, 2006). Ralston, Jackson H., International arbitration from Athens to Locarno (Stanford University Press, 1929). Reisman, W. Michael, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (Duke University Press, 1992). Reisman, W. Michael, Law in Brief Encounters (Yale University Press, 1999). Reisman, W. Michael, The Quest for World Order and Human Dignity in the twentyfirst century: Constitutive Process and Individual Commitment, General Course on Public International Law in Hague Academy of International Law (Martinus Nijhoff Publishers, 2013). Reiss, Hans (ed.), Kant’s Political Writings (Cambridge University Press, 1991). Ricardo, David, The Principles of Political Economy and Taxation (Dent/Dutton, 1974). Riphagen, Willem, Third Report of the Special Rapporteur on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles) in Yearbook of International Law Commission, Vol. II (1982). Rittberger, Volker, Editor’s Introduction, in International Regimes in East-West Politics (Volker Rittberger ed., Pinter Publishers, 1990). Rittberger, Volker and Peter Mayer (eds.), Regime Theory and International Relations (Clarendon Press, 1993). Rosenne, Shabtai (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents (T.M.C. Asser Press, 2001).

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Roth, Andreas Hans, The Minimum Standard of International Law Applied to Aliens (A.W. Sijthoff, 1949). Ruggie, John G., Multilateralism: The Anatomy of an Institution in Multilateralism Matters (John G. Ruggie ed., Columbia University Press, 1993). Sadat-Akhavi, Ali, Methods of Resolving Conflicts between Treaties (Martinus Nijhoff Publishers, 2003). Salacuse, Jeswald W., The Law of Investment Treaties (Oxford University Press, 2015). Sanchez-Sorondo, Marcelo, Vitoria: The Original Philosopher of Rights in Hispanic Philosophy in the Age of Discovery (Kevin White ed., Catholic University of America Press, 1997). Sandholtz, Wayne and Kendall W. Stiles, International Norms and Cycles of Change (Oxford University Press, 2009). Sanger, George P. (ed.), The Statutes at Large, Treaties, and Proclamations of the United States of America from December 5, 1859 to March 3, 1863 Vol. XII (Little, Brown and Company, 1863). Schachter, Oscar, International Law in Theory and Practice (Martinus Nijhoff Publishers, 1991). Schill, Stephen (ed.), International Investment Law and Comparative Public Law (Oxford University Press, 2010). Schroeder, Paul W., The Transformation of European Politics, 1763–1848 (Oxford University Press, 1994). Schwarzenberger, George, International Law as Applied by International Courts and Tribunals, Vol. 1 (Stevens, 3rd ed., 1957). Scott, James Brown, The Hague Peace Conferences of 1899 and 1907 (The Johns Hopkins Press, 1909). Scott, James Brown, The Spanish Origin of International Law: Francisco De Vitoria and His Law of Nations (Clarendon Press, 1934). Shea, Donald R., The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (University of Minnesota Press, 1955). Shelton, Dinah, International Law and Relative Normativity, in International Law, (Malcolm D. Evans ed., Oxford University Press, 2003). Shi, Jingxia, Free Trade and Cultural diversity in International Law (Hart Publishing, 2013). Shihata, Ibrahim F.I., Legal Treatment of Foreign Investment: World Bank Guidelines (Martinus Nijhoff Publishers, 1993). Silagi, Michael, Preferential Claims Against Venezuela Arbitration in Encyclopedia of Public International Law, Vol. III (Rudolf Bernhardt ed., North Holland Publishing, 1992). Simpson, Gerry, International Law in Diplomatic History in The Cambridge Companion to International Law (James Crawford and Martti Koskenniemi eds., Cambridge University Press, 2012).

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Sinclair, Ian, The Vienna Convention on the Law of Treaties (Manchester University Press, 2nd ed., 1984). Skinner, Quentin, The Foundations of Modern Political Thought (Cambridge University Press, 1978). Slaughter, Anne Marie, A New World Order (Princeton University Press, 2004). Smith, Adam, Lectures on Justice, Police, Revenue and Arms I (E. Canaan ed., 1896). Smith, Peter H., Talons on the Eagle: Latin America, the United States, and the World (Oxford University Press, 4th ed., 2012). Smith, Robert Freeman, Latin America, the United States and the European Powers, 1830–1930, in The Cambridge History of Latin America, Vol. IV (Leslie Bethel ed., Cambridge University Press, 1986). Sornarajah, M., International Law on Foreign Investment (Cambridge University Press, 3rd ed., 2010). Stein, Arthur A., Coordination and Collaboration: Regimes in an Anarchic World in International Regimes (Stephen D. Krasner ed., Cornell University Press, 1983). Steiner, Henry, Individual Claims in a World of Massive Violations: What Role for the Human Rights committee in The Future of UN Human Rights Treaty Monitoring (Philip Alston and James Crawford eds., Cambridge University Press, 2000). Suarez, On Laws and God the Lawgiver, in Selections from Three Works, Vol. II (Translated by G. Williams)(Oxford University Press, 1944). Susan L. Karamanian, The relationship between international trade law and international human rights law in Hierarchy in international law: the place of human rights (Erika de Wet and Jure Vidmar eds., Oxford University Press, 2012). Tania Boon, Cultural Products and the World Trade Organization (Cambridge University Press, 2011). Tarullo, Daniel K., The Relationship between WTO Obligations to Other International Arrangements in New Directions in International Law” Essays in Honour of John H. Jackson (Marco Bronckers and Reinhard Quick eds., Kluwer Law International, 2000). Temin, Peter, Lessons from the Great Depression (The MIT Press, 1989). Tilly, Charles, Coercion, Capital, and European States, AD 990–1990 (Basil Blackwell, 1990). Tomuschat, Christian, Human Rights. Between Idealism and Realism (Oxford University Press, 2nd ed., 2008). Trachtman, Joel P., The Future of International Law: Global Government (Cambridge University Press, 2013). Tuck, Richard, The Rights of War and Peace—Political Thought and the International Order from Grotius to Kant (Oxford University Press, 1999). Udombana, Nsongurua J., The Right to a Peaceful World Order in International Human Rights Law: Six Decades after the UDHR and Beyond (Mashood A. Baderin and Manisuli Ssenyonjo eds., Ashgate, 2013).

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337

Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007). UN Office of Legal Affairs, Treaty Handbook (1999). Vadi, Valentina, Cultural Heritage in International Investment Law and Arbitration (Cambridge University Press, 2014). Vandevelde, Kenneth J., US International Investment Agreements (Oxford University Press, 2009). Vandevelde, Kenneth J., Bilateral Investment Treaties: History, Policy, and Interpretation (Oxford University Press, 2010). Van Harten, Gus, Investment Treaty Arbitration and Public Law (Oxford University Press 2007). Vattel, Emer de, The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (1797) (Bela Kapossy and Richard Whatmore eds., Liberty Fund, 2008). Vattel, Emer de, The Law of Nations or Principles on the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, Book II, Chapter XVII (Printed for G.G.J. and J. Robinson, Whieldon and Butterworth, 1793). Venzke, Ingo, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press, 2012). Verzijl, John Hendrik Willem, International Law in Historical Perspective (A.W. Sijthoff, 1968). Villiger, Mark E., Customary International Law and Treaties: A Study of Their Interactions and Interrelations, with Special Consideration of the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers, 1985). Vinuales, Jorge E., Foreign Investment and the Environment in International Law (Cambridge University Press, 2012). Vitoria, De Indis et de Jure Belli: Rectiones (1696), as reprinted in The Classics of International Law (James Brown Scott ed., Carnegie Washington, 1917). Von Bogdandy, Armin and Ingo Venzke, Beyond Dispute: International Judicial Institutions as lawmakers in International Judicial Lawmaking (Armin von Bogdandy and Ingo Venzke eds., Springer, 2012). Vranes, Erich, Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory (Oxford University Press, 2009). Waelde, Thomas, Interpreting Investment Treaties, Experiences and Examples in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Christina binder, Ursula Kriebaum, August Reinisch and Stephen Wittich eds., Oxford University Press, 2009). Waibel, Michael, Asha Kaushal, Kyo-Hwa Chung and Claire Balchin eds The Backlash against Investment Arbitration: Perception and Reality (Kluwer Law International, 2010).

338

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Waldock, Sir Humphrey, Commentary on draft articles, Yearbook of International Law Commission, Vol. II (1964). Waldock, Sir Humphrey, Report of the International Law Commission, Yearbook of International Law Commission (1966). Wang, Dong, China’s Unequal Treaties: Narrating National History (Lexington Books, 2005). Wang, Tieya, The Third World and International Law in The Structure and Process of International Law 955 (Ronald St. J. MacDonald and Douglas M. Johnson eds., Martinus Nijhoff Publishers, 1989). Ward, Robert Plumer, An Enquiry into the Foundation and the History of the Law of Nations in Europe, From the Time of the Greeks and Romans, to the Age of Grotius Vol. I & II (Originally Published in 1795)(P. Wogan, P. Byrne, W. Jones and J. Rice eds., The Lawbook Exchange, ltd., 2005). Webb, Philippa, International Judicial Integration and Fragmentation (Oxford University Press, 2013). Weiler, Todd, An Historical Analysis of the Function of the Minimum Standard of Treatment in International Investment Law in New Direction in International Economic Law: In Memoriam Thomas Walde (Todd Weiler and Freya Baetens eds., Martinus Nijhoff Publishers, 2011). Wells, David Ames, Recent Economic Changes (D. Appleton, 1889). Wheaton, Henry, History of the Law of Nations in Europe and America: From the Earliest Times to the Treaty of Washington, 1842 (Gould, Banks, 1845). Wheaton, Henry, Elements of International Law (first published in 1836) (Stevens & Sons, 5th ed., 1916). Whitaker, Arthur P., The United States and the Independence of Latin America (The Johns Hopkins Press, 1941). Winham, Gilbert R., The Evolution of International Trade Agreements (University of Toronto Press, 1992). Wolfrum, Rüdiger and Nele Matz, Conflicts in International Environmental Law (Springer, 2003). Yasuaki, Onuma (ed.), A Normative Approach to War: Peace, War and Justice in Hugo Grotius (Clarendon Press, 1993). Young, Margaret (ed.), Regime Interaction in International Law Facing Fragmentation (Cambridge University Press, 2012). Zimmermann, Andreas and Rainer Hofmann (eds.), Unity and Diversity in International Law (Duncker & Humblot, 2006).

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Articles Aaronson, Susan A., Seeping in Slowly: How Human Rights Concerns are Penetrating the WTO, 6 World Trade Review 413 (2007). Abbott, Alden F., Latin America and International Arbitration Conventions: The Quandary of Non-Ratification, 17 Harvard International Law Journal 131 (1976). Abi-Saab, Georges, The Newly Independent States and the Rules of international Law, 8 Howard law Journal 95 (1962). Abi-Saab, Georges, The Third World and the Future of the International Legal Order, 29 Revue Egyptienne de droit International 27 (1973). Abi-Saab, Georges, Fragmentation or Unification: Some Concluding Remarks, 31 N.Y.U. Journal of International Law and Policy 919 (1999). Abs, Herman and Lord Shawcross, The Proposed Convention to Protect Private Foreign Investment, 9 Journal of Public Law 115 (1960). Aceves, William J., Institutional Theory and International Legal Scholarship, 12 American University International Law Review 227 (1997). Akehurst, Michael, The Hierarchy of Sources of International Law, 47 British Yearbook of International Law 273 (1975). Alford, Roger P., The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 American Society of International Law Proceedings 160 (2000). Allen, Brooks E. and Tommaso Soave, Jurisdictional Overlap in WTO Dispute Settlement and Investment Arbitration, 30 Arbitration International 1 (2014). Alschner, Wolfgang, Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law, 5 Goettingen Journal of International Law 455 (2013). Alston, Philip, Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social, and Cultural Rights, 9 Human Rights Quarterly 332 (1987). Alston, Philip, Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann, 13 European Journal of International Law 815 (2002). Alston, Philip and Gerard Quinn, The Nature and Scope of State Parties’ Obligations under the International Covenant of Economic, Social and Cultural Rights, 9 Human Rights Quarterly 156 (1987). Alter, Karen J., Laurence R. Helfer and Jacqueline R. McAllister, A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 107 American Journal of International Law 737 (2013). Alvarez, Alejandro, Latin America and International Law, 3 American Journal of International Law 269 (1909). Alvarez, Jose E., The New Dispute Settlers: (Half ) Truths and Consequences, 38 Texas International Law Journal 405 (2003).

340

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Alvarez, Jose E., Contemporary International Law: An “Empire of Law” or the “Law of Empire”, 24 American University International Law Review 811 (2009). Anghie, Antony, Finding the Peripheries: Sovereignty and Colonialism in NineteenthCentury International Law, 40 Harvard International Law Journal 1 (1999). Anghie, Antony, The Evolution of International Law: Colonial and Post Colonial Realities, 27 Third World Quarterly 739 (2006). Asiedu-Akrofi, Derek, ICSID Arbitral Decision: Asian Agricultural Products Limited (AAPL) v. Republic of Sri Lanka, 86 American Journal of International Law 371 (1992). Aufricht, Hans, Suppression of Treaties of International Law, 37 Cornell Law Quarterly 655 (1952). Baetens, Freya, Muddling the Waters of Treaty Interpretation: Relevant Rules of International Law in the Mox Plant, OSPAR Arbitration and EC-Biotech Case, 77 Nordic Journal of International Law 77 (2008). Baker, Roozbeh B., Customary International Law in the 21st Century: Old Challenges and New Debates, 21 European Journal of International Law 173 (2010). Bartels, Lorand, Applicable Law in WTO Dispute Settlement Proceedings, 35 Journal of World Trade 499 (2001). Bartels, Lorand, The WTO Enabling Clause and Positive Conditionality in the European Community’s GSP Program, 6 Journal of International Economic Law 507 (2003). Bartels, Lorand, Human Rights and Sustainable Development Obligations in the EU’s Free Trade Agreements, 40 Legal Issues of Economic Integration 297 (2013). Baxter, William F., Choice of Law and the Federal System, 16 Stanford Law Review 1 (1963). Best, Geoffrey, Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After, 75 International Affairs 619 (1999). Bianchi, Andrea, Human Rights and the Magic of Jus Cogens, 19 European Journal of International Law 491 (2008). Bingham, Tom, The Alabama Claims arbitration, 54 International and Comparative Law Quarterly 1 (2005). Bjorklund, Andrea K., The Role of Counterclaims in Rebalancing Investment Law, 17 Lewis & Clark Law Review 461 (2013). Blum, Gabriella, Bilateralism, Multilateralism, and the Architecture of International Law, 49 Harvard International Law Journal 323 (2008). Bluntschli’s Draft Code, 29 American Journal of International Law 1208 (1935). Borchard, Edwin, Protection of Citizens Abroad and Change of Original Nationality, 43 Yale Law Journal 359 (1934). Borchard, Edwin M., The Minimum Standard” of the Treatment of Aliens, 38 Michigan Law Review 445 (1940). Brabandere, Eric De, NGOs and the ‘Public Interest’: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes, 12 Chicago Journal of International Law 85 (2011).

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341

Brilmayer, Lea, The International Justice and International Law, 98 West Virginia Law Review 611 (1996). Broude, Thomas and Holger Hestermeyer, The First Condition of Progress? Freedom of Speech and the Limits of International Trade Law, International Law Forum, The Hebrew University of Jerusalem Faculty of Law, Research Paper No. 05-13 (May 2013). Burke-White, William and Andreas von Staden, Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations, 35 Yale Journal of International Law 283 (2010). Butkevych, Olga V., History of Ancient International Law: Challenges and Prospects, 5 Journal of History of International Law 189 (2003). Cameron, Mowatt, J. and Celeste Mowatt, Border Timbers and others v. Zimbabwe and von Pezold and others v. Zimbabwe, 28 ICSID Review 33 (2013). Caron, David D., War and International Adjudication: reflections on the 1899 Peace Conference, 94 American Journal of International Law 4 (2000). Cassese, Antonio, Remarks on Scelle’s Theory of “Role Splitting” in International law, 2 European Journal of International Law 210 (1990). Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 N.Y.U. Journal of International Law and Policy 709 (1999). Charney, Jonathan I., The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 N.Y.U. Journal of International Law and Policy 697 (1999). Charnovitz, Steve, Exploring the Environmental Exceptions in GATT Article XX’ in GATT Article XX, 25 Journal of World Trade 37 (1991). Charnovitz, Steve, The Influence of International Labor Standards on the World Trading Regime: A Historical Overview, 126 International Labor Review 565 (1987). Charnovitz, Steve, The Moral Exception in Trade Policy, 38 Virginia Journal of International Law 689 (1998). Chen, Li, Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the Lady Hughes Controversy in 1784, 27 Law and History Review 1 (2009). Chinkin, Christine, Jus Cogens, Article 103 of the UN Charter and Other Hierarchical Techniques of Conflict Solution, 27 Finnish Yearbook of International Law 63 (2006). Cleveland, Sarah, Human Rights Sanctions and International Trade: A Theory of Compatibility, 5 Journal of International Economic Law 133 (2002). Cottier, Thomas, Trade and Human Rights: A Relationship to Discover, 5 Journal of International Economic Law 111 (2002). Cottier, Thomas and Maya Hertig, The Prospects of 21st Century Constitutionalism, 7 Max Planck Yearbook of United Nations Law 261 (2003). Coyle, John F., The Treaty of Friendship, Commerce and Navigation in the Modern Era, 51 Columbia Journal of Transnational Law 302 (2013).

342

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Crawford, James, Continuity and Discontinuity in International Dispute Settlement: An Inaugural Lecture, 1 Journal of International Dispute Settlement 3 (2010). Czaplinski, Wladyslaw and Gennady M. Danilenko, Conflict of Norms in International Law, 21 Netherlands International Law Review 3 (1990). Dattu, Riyaz, A journey from Havana to Paris, 24 Fordham International Law Journal 275 (2000). David Dudley Field’s Draft Code, 29 American Journal of International Law 1207 (1935). Dawson, Frank G., The Influence of Andres Bello on Latin-American Perceptions of NonIntervention and State Responsibility, 57 British Yearbook of International Law 253 (1986). Dennis, Michael J. and David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Right to Food, Water, Housing, and Health?, 98 American Journal of International Law 462 (2004). De Torre, Joseph M., The Roots of International Law and the Teachings of Francisco de Vitoria as Foundations for Transcendent Human rights and International Peace, 2 Ave Maria Law Review 123 (2004). DiCaprio, Alisa, Are Labor Provisions Protectionist? Evidence From Nine Labor-Augmented U.S. Trade Arrangements, 26 Comparative Labor Law and Policy Journal 1 (2004). Dolzer, Rudolf, New Foundations of the Law of Expropriation of Alien Property, 75 American Journal of International Law 553 (1981). Donnelly, Jack, International Human Rights: A Regime Analysis, 40 International Organization 599 (1986). Douglas, Zachary, The Hybrid Foundations of Investment Treaty Arbitration, 74 British Yearbook of International Law 151 (2003). Draft of the International Commission of American Jurists, 29 American Journal of International Law 1222 (1935). Draft Convention on the Law of Treaties, 29 American Journal of International Law Special Supplement 653 (1935). Drago, Luis M., State Loans in their Relations to International Policy, 1 American Journal of International Law 692 (1907). Driesen, David, What is Free Trade? The Real Issue Lurking Behind the Trade and Environment Debate, 41 Virginia Journal of International Law 279 (2001). Dunoff, Jeffrey L., The WTO in Transition: Of Constituents, Competence, and Coherence, 33 George Washington International Law Review 979 (2001). Dupuy, Pierre M., A Doctrinal Debate in the Globalization Era: On the Fragmentation of International Law, 1 European Journal of Legal Studies 1 (2007). Ebobrah, Solomon T., Litigating Human Rights Before Sub-regional Courts in Africa: Prospects and Challenges, 17 African Journal of International and Comparative Law 80 (2009).

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343

Eduardo Jimenez de Arechaga, International Law in the Past Third of a Century, 159 Recueil des Cours 1 (1978). Elias, Taslim Olawale, The Doctrine of Inter-temporal Law, 74 American Journal of International Law 292 (1980). Elkins, Zachary, Andrew T. Guzman and Beth A. Simmons, Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960–2000, 60 International Organization 811 (2006). Esty, Daniel C., Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale Law Journal 1490 (2006). Fatouros, Arghyrios A., International Law and the Third World, 50 Virginia Law Review 783 (1964). Fiore’s Draft Code, 29 American Journal of International Law 1212 (1935). Freeman, Alwyn, Recent Aspects of the Calvo Doctrine and the Challenge to International Law, 40 American Journal of International Law 121 (1946). French, Duncan, Treaty Interpretation and the Incorporation of Extraneous Legal Rules, 55 International and Comparative Law Quarterly 281 (2006). Frowein, Jochen, The European and the American Convention on Human Rights—A Comparison, 1 Human Rights Law Journal 44 (1980). Garcia, Carlos G., All the Other Dirty Little Secrets: Investment Treaties, Latin America, and the Necessary Evil of Investor-State Arbitration, 16 Florida Journal of International Law 301 (2004). Garcia-Bolivar, Omar E., The Latin American Struggle With the International Law of Foreign Investment: Is It A Demand for A More Balanced System? 6 Transnational Dispute Management No. 4 (2009). Garibaldi, Oscar M., Carlos Calvo Redivivus: The Rediscovery of the Calvo Doctrine in the Era of Investment Treaties 3 Transnational Dispute Management No. 5 (2006). Gathii, James Thuo, Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy 98 Michigan Law Review 1996 (2000). Gehring, Thomas, International Environmental Regimes: Dynamic Sectoral Legal Systems, 1 Yearbook of International Environmental Law 35 (1990). Ginsburg, Tom, The Culture of Arbitration, 36 Vanderbilt Journal of Transnational Law 1335 (2003). Goodrich, Leland M., From League of Nations to United Nations, 1 International Organization 3 (1947). Gourgourinis, Anastasios, The Distinction between Interpretation and Application of Norms in International Adjudication, 2 Journal of International Dispute Settlement 31 (2011). Green, James A., The Oil Platforms: An Error in Judgment?, 9 Journal of Conflict and Security Law 357 (2004).

344

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Gross, Leo, The Peace of Westphalia 1648–1948, 42 American Journal of International Law 20 (1948). Guha-Roy, S.N., Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law? 55 American Journal of International Law 863 (1961). Guzman, Andrew T., Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 Virginia Journal of International Law 639 (1997). Hafner, Gerhard, Pros and Cons Ensuing from Fragmentation of International Law, 25 Michigan Journal of International Law 859 (2004). Hans, Aufricht, Supersession of Treaties in International Law, 37 Cornell Law Review 655 (1951–1952). Harry H. Almond, The Anglo—Japanese Commercial Treaty of 1963, 13 International and Comparative Law Quarterly 925 (1964). Hass, Ernst B., Why Collaborate? Issue-Linkage and International Regimes, 32 World Politics 357 (1980). Helfer, Lawrence, Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 Yale Journal of International Law 1 (2004). Henckels, Caroline, Indirect Expropriation and the Right to Regulate: Revisiting Proportionality Analysis and the Standard of Review in Investor-State Arbitration, 15 Journal of International Economic Law 223 (2012). Hershey, Amos S., The Calvo and Drago Doctrines, 1 American Journal of International Law 26 (1907). Hestermeyer, Holger P., Canadian-made Drugs for Rwanda: The First Application of the WTO Waiver on Patents and Medicines, 11 American Society of International Law Insights 28 (2007). Higgins, Rosalyn, Ten Years on the UN Human Rights Committee: Some Thoughts Upon Parting, 6 European Human Rights Law Review 570 (1996). Higgins, Rosalyn, The ICJ, the ECJ, and the Integrity of International Law, 52 International Law and Comparative Law Quarterly 1 (2003). Higgins, Rosalyn, A Babel of Judicial Voices? Ruminations from the Bench, 55 International Law and Comparative Law Quarterly 791 (2006). Hindley, Brian and Hosuk Lee-Makiyama, Protectionism Online: Internet Censorship and International Trade Law, ECIPE Working Paper 12/2009, 8 (available at http://www.ecipe.org/publications/protectionism-online-internet-censorshipand-international-trade-law/). Howse, Robert, The World Trade Organization and the Protection Of Workers’ Rights, 3 Journal of Small and Emerging Business Law 131 (1999). Howse, Robert, Human Rights in the WTO, Whose Rights, What Humanity? Comment on Petersmann, 13 European Journal of International Law 651 (2002). Howse, Robert, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, 27 Columbia Journal of Environmental Law 489 (2002).

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Howse, Robert and Henrik Horn, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, 8 World Trade Review 49 (2009). Hudec, Robert, The GATT Legal System: A Diplomat’s Jurisprudence, 4 Journal of World Trade Law 615 (1970). Hudec, Robert, Enforcing International Trade Law: The Evolution Of The Modern GATT Legal System (Butterworth Legal Publishers, 1993). Huhs, John I., Trade Preferences for Developing Countries: Options for Ordering International Economic and Political Relations, 20 Stanford Law Review 1150 (1968). Jackson, John H., The Crumbling Institutions of the Liberal Trade System, 12 Journal of World Trade Law 93 (1978). Jenks, C. Wilfred, The Conflict of Law-Making Treaties, 30 British Yearbook of International Law 401 (1953). Johnstone, Ian, Treaty Interpretation: The Authority of Interpretative Communities, 12 Michigan Journal of International Law 371 (1991). Jonathan I. Charney, Is International Law Threatened by Multiple International Law Tribunals?, 271 Recueil Des Cours 101 (1998). Kelsen, Hans, Conflicts between Obligations under the Charter of the United Nations and Obligations under other International Agreements, 10 University of Pittsburg Law Review 284 (1949). Kennedy, David, Primitive Legal Scholarship, 27 Harvard International Law Journal 1 (1986). Keohane, Robert O., Multilateralism: An Agenda for Research, 45 International Journal 731 (1990). Kindleberger, Charles, The Rise of Free Trade in Western Europe, 1820–1875, 35 Journal of Economic History 20 (1975). Klabbers, Jan, On Rationalism in Politics: Interpretation of Treaties and the World Trade Organization, 74 Nordic Journal of International Law 405 (2005). Knox, John H., Separated at Birth: The North American Agreements on Labor and the Environment, 26 Loyola of Los Angeles International and Comparative Law Review 359 (2004). Koh, Harold Hongju, Why Do Nations Obey International Law?, 106 Yale Law Journal 2599 (1997). Koskenniemi, Martti, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol, 3 Yearbook of International Environmental Law 123 (1992). Koskenniemi, Martti, Hierarchy in International Law: A Sketch, 8 European Journal of International Law 566 (1997). Koskenniemi, Martti, International Law in Europe: Between Tradition and Renewal, 16 European Journal of International Law 113 (2005). Koskenniemi, Martti, Empire and International Law: The Real Spanish Contribution, 61 University of Toronto Law Journal 1 (2011).

346

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Koskenniemi, Martti, Histories of International Law: Dealing with Eurocentrism, 19 Rechts geschichte (2011). Krisch, Nico, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 European Journal of International Law 369 (2005). Ku, Charlotte, Global Governance and the Changing Face of International Law, Academic Council on the United Nations System, ACUNS Reports & Papers No.2 (2001). Kuhn, Arthur, The Tariff as a Matter of International Concern, 23 American Journal of International Law 816 (1929). Kunz, Josef L., The Meaning and the Range of the Norm Pacta Sunt Servanda, 39 American Journal of International Law 180 (1945). Kuyper, Pieter Jan, The Law of GATT as a Special Field of International Law: Ignorance, further refinement or self-contained system of international law, 25 Netherlands Yearbook of International Law 227 (1994). Krasner, Stephan D., Structural Causes and Regime Consequence: Regimes as Intervening Variables, 36 International Organization 185 (1982). Krueger, Anne O., Trade Policy and Economic Development: How We Learn, 87 The American Economic Review 1 (1997). Langford, Malcolm, Closing the Gap?—Introduction to the Optional Protocol to the International Covenant on Economic, Social, Cultural Rights, 27 Nordic Journal of Human Rights 1 (2009). Lauterpacht, Hersch, The Covenant as the Higher Law, 17 British Yearbook of International Law 54 (1936). Lauterpacht, Hersch, Contracts to Break a Contract, 52 Law Quarterly Review 494 (1936). Lauterpacht, Hersch, The Grotian Tradition in International Law, 23 British Yearbook of International Law 1 (1946). Lauterpacht, Hersch, Codification and Development of International Law, 49 American Journal of International Law 16 (1955). Leathley, Christian, An Institutional Hierarchy to Combat the Fragmentation of International Law: Has the ILC Missed an Opportunity?, 40 N.Y.U. Journal of International Law and Policy 259 (2007). Leebron, David W., Linkages, 96 American Journal of International Law 5 (2002). Lesaffer, Randall, The Grotian Tradition Revisited: Continuity and Change in the History of International Law, 73 British Yearbook of International Law 103 (2002). Levine, Eugenia, Amicus Curiae in International Investment Arbitration: Implications of an Increase in Third-Party Participation, 29 Berkeley Journal of International Law 200 (2011). Linderfalk, Ulf, The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences, 18 European Journal of International Law 853 (2008).

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347

Lindroos, Anja, Fragmented Legal System: The Doctrine of Lex Specialis, 74 Nordic Journal of International Law 27 (2005). Lindross, Anja and Michael Mehling, Dispelling the Chimera of ‘Self-Contained Regimes’ International Law and the WTO, 16 European Journal of International Law 857 (2005). Lowenthal, Abraham F., The United States and the Dominican Republic to 1965: Background to Intervention, 10 Caribbean Studies 30 (1970). Lukashuk, Igo I., The Principle Pacta Sunt Servanda and the Nature of Obligation under International Law, 83 American Journal of International Law 513 (1989). Mahon, Claire, Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 8 Human Rights Review 617 (2008). Mann, Frederick A., British Treaties for the Promotion and Protection of Investments, 52 British Yearbook of International Law 241 (1981). Marceau, Gabrielle, Conflict of Norms and Conflict of Jurisdictions: The Relationship between the WTO Agreement and MEAs and Other Treaties, 35 Journal of World Trade 1081 (2001). Marks, Stephen P., Emerging Human Rights: A New Generation for the 1980s?, 33 Rutgers Law Review 435 (1981). Martin, Forrest, Delineating a Hierarchical Outline of International Law Sources and Norms, 63 Saskatchewan Law Review 333 (2002). Mavroidis, Petros C., Trade and Environment after the Shrimp-Turtle Litigation, 34 Journal of World Trade 73 (2000). McLachlan, Campbell, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 International and Comparative Law Quarterly 279 (2005). Michaels, Ralf and Joost Pauwelyn, Conflict of Norms or Conflict of Laws? Different Techniques in the Fragmentation of International Law, 22 Duke Journal of Comparative and International Law 349 (2012). Milanovic, Marko, Norm Conflict in International Law: Whither Human Rights?, 20 Duke Journal of Comparative and International Law 69 (2009). Miller, Arthur S., Protection of Private Foreign Investment by Multilateral Convention, 53 American Journal of International Law 371 (1959). Mills, Alex, Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration, 14 Journal of International Economic Law 469 (2011). Minor, Michael S., The Demise of Expropriation As an Instrument of LDC Policy, 25 Journal of International Business Studies 177 (1994). Montaguti, Elisabetta and Maurits Lugard, The GATT 1994 and Other Annex 1A Agreements: Four Different Relationships?, 3 Journal of International Economic Law 473 (2000).

348

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Montt, Santiago, What International Investment Law and Latin America Can and Should Demand From Each Other. Updating the Bello/Calvo Doctrine In the BIT Generation, 3 Res Publica Argentina 75 (2007). Mus, Jan B., Conflict between Treaties in International Law, 45 Netherlands International Law Review 208 (1998). Oellers-Frahm, Karin, Multiplication of International Courts and Tribunals and Conflicting Jurisdiction: Problems and Possible Solutions, 5 Max Planck Yearbook of United Nations Law 67 (2001). Oppenheim, Lassa, The Science of International Law: Its Task and Method, 2 American Journal of International Law 313 (1908). Orakhelashvili, Alexander, The Idea of European International Law, 17 European Journal of International Law 315 (2006). Parra, Antonio R., ICSID and the Rise of Bilateral Investment Treaties: Will ICSID Be the Leading Arbitration Institution in the Early 21st Century?, 97 American Society of International Law Proceedings 41 (2000). Paulus, Andreas L., Jus Cogens in a Time of Hegemony and Fragmentation, 74 Nordic Journal of International Law 297 (2005). Pauwelyn, Joost, WTO Compassion or Superiority Complex? What to Make of The WTO Waiver for Conflict Diamonds, 24 Michigan Journal of International Law 1177 (2004). Pauwelyn, Joost, Case Note, Squaring Free Trade in Culture with Chinese Censorship: The WTO Appellate Body Report on China—Audiovisuals, 11 Melbourne Journal of International Law 119 (2010). Petersmann, Ernst-Ulrich, From the Hobbesian International Law of Coexistence to Modern Integration Law: The WTO Dispute Settlement System, 1 Journal of International Economic Law 175 (1998). Petersmann, Ernst-Ulrich, Time for a United Nations ‘Global Compact’ for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, 13 European Journal of International Law 621 (2002). Petersmann, Ernst-Ulrich, Justice as Conflict Resolution: Proliferation, Fragmentation, and Decentralization of Dispute Settlement in International Trade, 27 University of Pennsylvania Journal of International Economic Law 273 (2006). Peterson, Luke Eric, South Africa’s Bilateral Investment Treaties: Implications for Development and Human Rights, Dialogue on Globalization, Freidrich-Ebert-Stiftung (November 2006). Pound, Roscoe, Grotius in the Science of Law, 19 American Journal of International Law 685 (1925). Puig, Sergio, The Role of Procedure in the Development of Investment law: The Case of Section B of Chapter Eleven of NAFTA in Evolution in Investment Treaty Law and Arbitration (Chester Brown and Kate Miles eds., Cambridge University Press, 2012).

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349

Qin, Julia Ya, Pushing the Limits of Global Governance: Trading Rights, Censorship and WTO Jurisprudence—A Commentary on the China—Publications Case, 10 Chinese Journal of International Law 271 (2011). Rainer, Geiger, Towards a Multilateral Agreement on Investment, 31 Cornell International Law Journal 476 (1998). Ratner, Steven, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 American Journal of International Law 361 (1999). Reisman, W. Michael, The Breakdown of the Control Mechanism in ICSID Arbitration, 4 Duke Law Journal 739 (1989). Reisman, W. Michael, International Law after the Cold War, 84 American Journal of International Law 859 (1990). Reisman, W. Michael and Robert D. Sloan, Indirect Takings and its Valuation in the BIT Generation, 74 British Yearbook of International Law 115 (2003). Rishikof, Harvey, When Naked Came the Doctrine of ‘Self-Defense’: What is the Proper Role of the International Court of Justice in Use of Force Cases?, 29 Yale Journal of International Law 331 (2004). Robertson, William S., French intervention in Mexico in 1838, 24 Hispanic American Historical Review 222 (1944). Root, Elihu, The Basic of Protection to Citizens Residing Abroad, 4 American Journal of International Law 517 (1910). Roth, Brad R., Governmental Illegitimacy and Neocolonialism: Response to Review by James Thuo Gathii 98 Michigan Law Review 2056 (2000). Rubin, Seymour J., Economic and Social Human Rights and the New International Economic Order, 1 American University International Law Review 67 (1986). Ruggie, John G., International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic Order, 36 International Organization 379 (1982). Salacuse, Jeswald W. and Nicholas P. Sullivan, Do BITS Really Work? An Evaluation of Bilateral Investment Treaties and Their Grand Bargain, 46 Harvard International Law Journal 67 (2005). Sands, Philippe, Treaty, Custom and the Cross-Fertilization of International Law, 1 Yale Human Rights & Development Law Journal 85 (1998). Schachter, Oscar, Private Foreign Investment and International Organizations, 45 Cornell Law Quarterly 415 (1959–1960). Schill, Stephan W., Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach, 52 Virginia Journal of International Law (2011). Schill, Stephan and Marc Jacob, Common structures of investment law in an age of increasingly complex treaty-making, Columbia FDI Perspective, No. 94, Vale Columbia Center on Sustainable International Investment (May 6, 2013).

350

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Schreuer, Christoph, Diversity and Harmonization of Treaty Interpretation in Investment Arbitration, in Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Magosia Fitzmaurice, Olufemi A. Elias and Pano Merkouris eds., Martinus Nijhoff Publishers, 2010). Schwelb, Egon, The International Court of Justice and the Human Rights Clauses of the Charter, 66 American Journal of International Law 337 (1972). Scott, James Brown, The Proposed Court of Arbitral Justice, 2 American Journal of International Law 772 (1908). Shelton, Dinah, An Introduction to the History of International Human Rights Law (Lectures given at the International Institute of Human Rights (Strasbourg, France), July 2003), George Washington Law Faculty Publications & Other Works, Paper 1052. Shelton, Dinah, Normative Hierarchy in International Law, 100 American Journal of International Law 291 (2006). Shihata, Ibrahim F.I., Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA, 1 ICSID Review 1 (1986). Simma, Bruno, Self-Contained Regimes, 16 Netherlands Yearbook of International Law 111 (1985). Simma, Bruno and Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 Australian Yearbook of International Law 82 (1989–1989). Simma, Bruno, Fragmentation in a Positive Light, 25 Michigan Journal of International Law 845 (2004). Simma, Bruno and Dirk Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, 17 European Journal of International Law 483 (2006). Simma, Bruno, Foreign Investment Arbitration: A Place for Human Rights?, 60 International Law Quarterly 573 (2011). Sinha, Minisha, An Evaluation of the WTO Committee on Trade and Environment 47 Journal of World Trade 1285 (2013). Slaughter, Anne-Marie, Andrew S. Tulumello and Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 American Journal of International Law 367 (1995). Sohn, Louis, The New International Law: Protection of the rights of individuals rather than States, 32 American University International Law Review 1 (1982). Stein, Arthur, The Hegemon’s Dilemma: Great Britain, the United States, and International Economic Order, 38 International Organization 355 (1984). Stirling, Patricia, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 American University International Law Review 1 (1996). Stone Sweet, Alec and Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Columbia Journal of Transnational Law 72 (2009).

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351

Sun, Haochen, The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health, 15 European Journal of International Law 123 (2004). Sykes, Alan O., TRIPS, Pharmaceuticals, Developing Countries and the Doha “Solution”, 3 Chicago Journal of International Law 47 (2002). Szasz, Paul C., The Investment Disputes Convention and Latin America (1970–1971), 11 Virginia Journal of International Law 256 (1971). Teubner, Gunther and Andreas Fischer-Lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Michigan Journal of International Law 999 (2004). Thirlway, Hugh, The Law and Procedure of the International Court of Justice 1960–1989 Part III, 62 British Yearbook of International Law 1 (1991). Thompson, Huston, An International Trade Tribunal, 34 American Society of International Law and Proceedings 1 (1940). Tomasevski, Katarina, Globalizing What: Education as a Human Right or as a Traded Service?, 12 Indiana Journal of Global Legal Studies 1 (2005). Trachtman, Joel P., The Domain of WTO Dispute Resolution, 40 Harvard International Law Journal 333 (1999). Trachtman, Joel P., Changing the Rules: Constitutional Moments of the WTO, 26 Harvard International Review 44 (2004). Trebilcock, Michael J., Trade Policy and Labour Standards: Objectives, Instruments and Institutions, University of Toronto Law and Economics Research Paper No. 02-01 (December 2011). Treves, Tullio, Fragmentation of International Law: The Judicial Perspective, 27 Agenda Internacional 213 (2013). Tunkin, Gregory, Is General International Law Customary Law Only?, 4 European Journal of International Law 534 (1993). United Conference on Trade and Development, Bilateral Investment Treaties in the Mid-1990s (United Nations Publications, 1998). Valentina S. Vadi, Global Health Governance at a Crossroads: Trademark Protection v. Tobacco Control in International Investment Law, 48 Stanford Journal of International Law 93 (2012). Vandevelde, Kenneth J., The Bilateral Investment Treaty Program of the United States, 21 Cornell International Law Journal 201 (1988). Vandevelde, Kenneth J., Sustainable Liberalism and the International Investment Regime, 19 Michigan Journal of International Law 373 (1998). Vandevelde, Kenneth J., The Economics of Bilateral Investment Treaties, 41 Harvard International Law Journal 469 (2000). Vandevelde, Kenneth J., A Brief History of International Investment Agreements, 12 U.C. Davis Journal of International Law and Policy 157 (2005).

352

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Van Duzer, J. Anthony, Enhancing the Procedural Legitimacy of Investor-State Arbitration through Transparency and Amicus Curiae Participation, 52 McGill Journal of International Law 681 (2007). Van Harten, Gus, The Public-Private Distinction in the International Arbitration of Individual Claims against the State, 56 International and Comparative Law Quarterly 377 (2007). Venzke, Ingo, Making General Exceptions: The Spell of Precedents in Developing Article XX GATT into Standards for Domestic Regulatory Policy, 12 German Law Journal 1111 (2011). Verdross, Alfred, Jus Dispositivum and Jus Cogens in International Law, 60 American Journal of International Law 55 (1966). Verger, Antoni, WTO/GATS and the Global Politics of Higher Education (Routledge, 2010). Verosta, Stephan, International Law in Europe and Western Asia between 100 and 650 AD, 113 Recueil des Cours 491 (1964). Vinuales, Jorge, Human Rights and Investment Arbitration: The Role of Amici Curiae, Revista Colombiana de Derecho Internacional 231 (2006). Vranes, Erich, The Definition of ‘Norm Conflict’ in International Law and Legal Theory, 17 European Journal of International Law 395 (2006). Waelde, Thomas, Edited version of the Lex Mercatoria Discussion on the OGEMID (Oil-Gas-Energy-Mining-Infrastructure Dispute Management), Discussion Forum between November 5, 2003 and November 11, 2003 (published in OGEL Vol. 2 Issue 1, February 2004). Walker Jr., Herman, Treaties for the Encouragement and Protection of Foreign Investment: Present United States Practice, 5 American Journal of Comparative Law 229 (1956). Weil, Prosper, Towards Relative Normativity in International Law?, 77 American Journal of International Law 413 (1983). Weil, Prosper, The State, the Foreign Investor, and International Law: The No Longer Stormy Relationship of a Ménage Ą Trois, 15 ICSID Review 401 (2000). Weston, Burns H., The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 American Journal of International Law 437 (1981). Wieland, Patrick, Why the Amicus Curia Institution is Ill-Suited to address indigenous People’s Rights before Investor-State Arbitration Tribunals: Glamis Gold and the Right of Intervention, 3 Trade, Law and Development 334 (2011). Williams, Sir John Fischer, The New Doctrine of “Recognition”, 18 Transactions of the Grotius Society, Problems of Peace and War, Papers Read before the Society in the Year 1932 (1932). William W. Park, Rules and Standards in Private International Law, 73 Arbitration 441 (2007).

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353

Wilson, Robert Renbert, Property-Protection Provisions in United States Commercial Treaties 45 American Journal of International Law 83 (1951). Wright, Quincy, Conflicts between International Law and Treaties, 11 American Journal of International Law 566 (1917). Yasuki, Onuma, When was the law of International Society Born?—An Inquiry of the history of international Law from an Intercivilizational Perspective, 2 Journal of History of International Law 1 (2000). Zapatero, Pablo, Modern International Law and the Advent of Special Legal Systems, Symposium: International Trade and Commercial Law for the Twenty-First Century, 23 Arizona Journal of International and Comparative Law 55 (2005).

United Nations Resolutions General Assembly, Resolution 217 (III), International Bill of Human Rights, December 10, 1948. General Assembly, Resolution 1803 (XVII), Permanent Sovereignty over Natural Resources, December 14, 1962. General Assembly, Resolution 3171 (XXVIII), Permanent Sovereignty over Natural Resources, December 17, 1973. General Assembly, Resolution 3201 (S-VI), Programme of Action on the Establishment of a New International Economic Order, May 1, 1974. General Assembly, Resolution 3281 (XXIX), Charter of Economic Rights and Duties of States, December 12, 1974. General Assembly, Resolution 44/23, United Nations Decade of International Law, November 17, 1989. General Assembly, Resolution 1318 (XIII), Promotion of the International Flow of Private Capital, December 12, 1958. General Assembly Resolution 63/117, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, December 10, 2008. Security Council, Resolution 1173, June 12, 1998. Security Council, Resolution 1306, July 5, 2000. Committee of Human Rights, Sub-Commission Resolution 1998/12, Human rights as the primary objective of trade, investment and financial policy, August 20, 1998, UN DocE/CN.4/SUB.2/RES/1998/12. Committee of Human Rights, Sub-Commission on Human Rights Resolution 1999/30, August 26, 1999, UN Doc. E/CN.4/Sub.2/RES/1999/30. Committee of Human Rights, Sub-Commission on Human Rights Resolution 2000/7, August, 17 2000, UN Doc. E/CN.4/Sub.2/RES/2000/7.

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Committee of Human Rights, Sub-Commission on Human Rights Resolution 2001/4, August 15, 2001, UN Doc. E/CN.4/Sub.2/RES/2001/4. UN Committee of Human Rights, Sub-Commission on Human Rights Resolution 2001/21, August 16, 2001, UN Doc. E/CN.4/Sub.2/RES/2001/21. Committee of Human Rights, Resolution 2002/28, April 22, 2002, UN Doc. E/CN.4/ RES/2002/28. Committee of Human Rights, Sub-Commission on Human Rights Resolution 2002/11, August 14, 2002, UN Doc. E/CN.4/Sub.2/RES/2002/11. Committee of Human Rights, Sub-Commission on Human Rights Resolution 2001/5, August 15, 2002, UN Doc. E/CN.4/Sub.2/RES/2001/5. Committee of Human Rights, Resolution 2003/23, April 22, 2003, UN Doc. E/CN.4/ RES/2003/23. Committee of Human Rights, Resolution 2004/24, April 16, 2004, UN Doc. E/CN.4/ RES/2004/24. Committee of Human Rights, Sub-Commission on Human Rights Resolution 2004/105, August 9, 2004 UN Doc. E/CN.4/Sub.2/RES/2004/105. Committee of Human Rights, Sub-Commission on Human Rights Resolution 2004/107, August 9, 2002, UN Doc. E/CN.4/Sub.2/RES/2004/107. Committee of Human Rights, Resolution 2005/17, April 15, 2005, UN Doc. E/CN.4/ RES/2005/17. Committee of Human Rights, Resolution 2005/69, April 20, 2005, E/CN.4/2005/L.10/ Add.17. Committee of Human Rights, Sub-Commission on Human Rights Resolution 2005/6, August 8, 2005, UN Doc. E/CN.4/Sub.2/RES/2005/16.

UN Human Rights Treaties Bodies United Nations, The Right to Adequate Food (article 11), Committee on Economic, Social and Cultural Rights, General Comment No.11, May 1999, (E/C.12/1999/5). United Nations, Trade Liberalization and the Environment: Lessons Learned from Bangladesh, China, Philippines, Romania and Uganda, A Synthesis Report, United Nations Environmental Programme, 1999. United Nations, The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, General Comment No. 14, (E/C.12/2000/4). United Nations Environment Programme, The Impact of the Agreement on TradeRelated Intellectual Property Rights on Human Rights, Report of the High Commissioner for Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, (E/CN.4/Sub.2/2001/13).

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355

United Nations, Poverty and the International Covenant on Economic, Social and Cultural Rights, Statement adopted by the Committee on Economic, Social and Cultural Rights (E/C.12/2001/10). United Nations, Globalization and its Impact on the Full Enjoyment of Human Rights, Report of the High Commissioner for Human Rights, Commission on Human Rights, (E/CN.4/2002/54). United Nations, Liberalization of Trade in Services and Human Rights, Report of the UN High Commissioner for Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, (E/CN.4/Sub.2/2002/9). United Nations, Human Rights, Trade and Investment, Report of the UN High Commissioner for Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, (E/CN.4/Sub.2/2003/9). United Nations, Analytical study of the High Commissioner for Human Rights on the Fundamental Principle of Non-Discrimination in the Context of Globalization, Report of the High Commissioner, 2004, (E/CN.4/2004/41). United Nations, Mission to the World Trade Organization, Report of the Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health, Commission on Human Rights, (E/CN.4/2004/49/Add.1). United Nations, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, Human Rights Committee, General Comment No. 31, 2004, (CCPR/C/21/Rev.1/Add.13). United Nations, Report of the Working Group on the Right to Development on its Sixth Session, Chairperson-Rapporteur, Ibrahim Salama, Commission on Human Rights, (E/CN.4/2005/25). United Nations, Analytical Study of the High Commissioner for Human Rights on the Fundamental Principle of Participation and its Application in the Context of Globalization, Report of the High Commissioner, Commission on Human Rights, (E/CN.4/2005/41). United Nations, Report of the High Commissioner for Human Rights on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, Commission on Human Rights, (E/CN.4/2005/91). United Nations, Human Rights and World Trade Agreements: Using General Exception Clauses to Protect Human Rights, Office of the High Commissioner for Human Rights, New York and Geneva, 2005. United Nations, Handbook on Integrated Assessment of Trade-Related Measures: The Agriculture Sector, United Nations Environment Programme, New York and Geneva, 2005. United Nations, The Right of Everyone to Benefit from the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She

356

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is Author, Committee on Economic, Social and Cultural Rights, General Comment No. 17, 2005, (E/C.12/GC/17). United Nations, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, 2006, (A/CN.4/L.682). United Nations, Report on Indicators for Monitoring Compliance with International Human Rights Instruments, Eighteenth Meeting of Chairpersons of the Human Rights Treaty Bodies and Fifth Inter-Committee Meeting of the Human Rights Treaty Bodies, June 2006, (HRI/MC/2006/7). United Nations, Concluding Observations of the Human Rights Committee, November 2007, (CCPR/C/CRI/CO/5). United Nations, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issues of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, Human Rights Council, 2008, (A/HRC/8/5). United Nations, Concluding Observations of the Committee on Economic, Social and Cultural Rights (Costa Rica), Committee on Economic, Social and Cultural Rights, January 2008, (E/C.12/CRI/CO/4). United Nations, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, Seventh Inter-Committee Meeting of the Human Rights Treaty Bodies and Twentieth Meeting of the Chairpersons of the Human Rights Treaty Bodies, Geneva, June 2008, (HRI/MC/2008/3). United Nations, Mission to the World Trade Organization, Report of the Special Rapporteur on the Right to Food, Olivier de Schutter, Human Rights Council, 2008, (A/HRC/10/5/Add.2).

GATT/WTO, OECD, and UNCTAD GATT Secretariat Note, Industrial Pollution Control and International Trade, GATT Doc. No. L/3538, June 9, 1971. GATT Council Decision, Differential and More Favourable Treatment, Reciprocity and Fuller Participation on Developing Countries, GATT Doc. No. L/4903, November 28, 1979 (available at http://www.wto.org/english/docs_e/legal_e/enabling_e.pdf). WTO, Ministerial Declaration, Doha, WT/MIN(01)/DEC/1, November 20, 2001. WTO General Council Decision of November 14, 2001, European Communities—the ACP—EC Partnership Agreement, WT/MIN(01)/15, November 14, 2001.

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357

WTO, Ministerial Conference, Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, WT/MIN(01)/DEC/2, November 20, 2001. WTO, Declaration on the TRIPS Agreement and public health, WT/MIN(01)/DEC/2, November 20, 2001. WTO, Communications from Canada, Japan, and Sierra Leone, Kimberley Certification Scheme for Rough Diamonds—Request for a WTO Waiver, submitted on November 11, 2002, G/C/W/431, November 12, 2002. WTO, General Council Decision, Waiver Concerning Kimberley Process Certification Scheme for Rough Diamonds, May 15, 2003, WT/L/518. WTO, General Council Decision, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, August 30, 2003, WT/L/540 and Corr.1. WTO, Waiver Concerning the Kimberley Process Certification Scheme for Rough Diamonds, G/C/W/432/Rev.1, February 24, 2003. WTO General Council Decision of November 26, 2013, Amendment of the TRIPS Agreement—Fourth Extension of the Period for the Acceptance by Members of the Protocol Amending the TRIPS Agreement, WT/L/899, November 27, 2013. OECD, A Multilateral Agreement on Investment—Report by the Committee of International Investment and Multinational Enterprises (CIME) and the Committee on Capital Movements and Invisible Transactions (CMI), May 1995, OCDE/GD(95)65.

Index Abs-Shawcross Draft 145 Access to medicine 218, 220, 222 Access to water Investor-state disputes 159, 165–166, 289 Right to water 6, 125, 209–210, 300, 314 n. 1123 Affirmative action 226, 287, 318, 321 African Charter on Human Rights 119, 120 n. 431 American Convention on Human Rights  118, 119 n. 248, 343 Amicus curiae 296, 340, 346, 352 Audiovisual products 280–281 Bifurcated system of human rights  122 n. 437 Bilateral Investment Treaties (BITs) Inception 64, 114, 142, 191 Proliferation of BITs 27–28, 99 n. 366, 399, 341, 348 Bretton Woods System 137, 140, 146 Calvo doctrine 91, 136, 343, 348 Clashes between capital-exporting and importing states 139, 157 Clinical isolation 267 Cobden-Chevalier Treaty 82 Cold War 98, 100, 103, 122 n. 256, 140, 146, 349 Colonial expansion 64, 75, 87, 92, 93 Comparative advantage 78, 150 Compensation 7, 52, 84, 110, 130, 135–136, 194, 285–294, 302, 308–311, 322 Concluding Observations 116, 210–212, 318, 356 Conflict in international law Broad definition 11, 35, 39, 42–44, 46 Narrow definition 33–37, 39, 41–42, 44–46 Core labor standards 192–195, 197–198 Council for Trade in Services (CTS) 200, 222–223, 319 Cultural Heritage 288, 289 n. 407, 313, 321, 337

Decentralized system of international law  5 Decolonization 99, 140, 157 Diplomatic protection 72, 84–85, 96, 97 n. 174, 134 n. 307, 137, 143, 326, 328 Dispute Settlement Understanding (DSU) 40, 236 Doha Round 153 n. 373, 154 Economic and Social Council 101–102, 196 Energy Charter Treaty 163, 310 n. 487 Enlightenment era 80 n. 101 Environment and trade 000 Environmental regulation in investor-state arbitration 283 European Human Rights System 000 Expropriation 84 n. 117, 110, 135–136, 144–145, 156, 203, 287–288, 290–291, 294, 307–311, 317, 342, 344, 347 Fragmentation of international law 4 n. 9, 22, 26–27, 102 n. 198, 242, 239 n. 200, 248, 254, 283 n. 387, 332, 342, 344, 346–347, 351, 356 Friendship, Commerce and Navigation treaties (FCNs) 60, 81, 134, 144, 399 General Comments 107–108, 209, 210 n. 91, 318, 325 Hague Peace Conferences 94, 95 nn. 165–166, 326, 334–335 Havana Charter 137–138, 139 n. 323, 141 n. 328 History of international law 53 n. 3, 54–55, 327–328, 331–332, 341, 346, 353 Hull 135, 136 n. 311, 311 n. 488 Human rights Implementation and Enforcement  130 Interdependence and universality 122 Legally binding 26, 32, 97, 106, 109, 111, 124, 131, 149, 220 n. 751

359

Index Human rights and Foreign Investment Compared 7, 11, 17, 23, 49 n. 177, 54, 58, 75, 103, 124, 141, 160, 203, 218–219, 221, 230, 280, 284–285, 320 Cultural heritage 288, 289 n. 1030, 313, 321, 337 Racial discrimination 113–114, 123, 128 n. 467, 191 n. 663, 226, 235, 287–288, 318, 321 Right of indigenous populations  225–226, 302, 321 Right to water 6, 125, 209–210, 300, 314 n. 1123 Public health 1, 5–6, 128, 201, 203, 212, 213 nn. 724–725, 215–216, 218, 219 n. 750, 220–221, 222 n. 757, 227, 262, 266, 273–274, 293–295, 298, 305, 317, 332, 351, 357 Human rights and trade Compared 7, 11, 17, 23, 49, 54, 58, 75, 103, 124, 141, 160, 203, 218–219, 221, 230, 280, 284, 285, 320 General exceptions clause 189, 266, 275, 320 Human rights conditionality 224, 318, 326 Human rights impact assessments 206, 208, 211, 222, 228–229 Indigenous rights 303–304 Kimberley Waiver 216, 217 n. 745, 221 TRIPS Waiver 216, 218, 221–222 Right to food 109, 200, 203, 207–209, 302, 303 n. 1077, 318 Right to water 6, 125, 209–210, 300, 314 n. 1123 UN human rights organs 170, 222, 318 Human Rights Council Committee of Human Rights 353–354 Human Rights Council 102–106, 112, 126, 201, 204, 207, 356 Human Rights Treaty Bodies Complaints procedures 107, 109, 111–112, 117 Core treaty bodies 130 Functions 54, 100, 104, 106, 111, 116, 120–121, 131, 216, 305 Inquiry procedures 112–113, 117–118

Indigenous rights 303–304 International Centre for the Settlement of Disputes (ICSID) Creation 11–12, 14, 23–25, 38–39, 63, 80, 96, 99–100, 104, 106 n. 388, 110, 111 n. 405, 141, 143 n. 515, 145, 159, 165, 168, 170, 172, 199, 231 First ICSID decision 165, 298 International Covenant on Civil and Political Rights (ICCPR) Enforcement and implementation 170 Historical background 167 International Covenant on Economic, Social and Cultural Rights (ICESCR) Enforcement and implementation 170 ICCPR compared 000 Progressive realization 110, 124 Right to food 109, 200, 203, 207–209, 302 n. 1077, 303 n. 1077, 318, 342, 356 Right to health 5–6, 110, 203, 209–210, 218–219, 221 Right to water 6, 125, 209–210, 300, 314 n. 1123 International Economic Law (IEL) ix, xiii, 4–5, 7–9, 49, 60 n. 213, 131, 136 n. 492, 140, 146–147, 151, 153, 167–168, 173, 175, 182, 191, 199–201, 209, 213, 316, 320, 323, 325, 332, 338, 340–341, 344, 347–348 International Labour Organisation (ILO) 50–51, 75, 191–198, 206, 279, 318 International regime International legal scholarship 7, 14, 16, 56, 67, 339 International relations scholarship 10 International Trade Organisation (ITO)  16 n. 46, 133 n. 482, 137–142, 326–327 Jus cogens 31, 101 n. 189, 233, 319, 329, 340–341, 346, 348, 350, 352 Labor Labor and trade 191–193 Labor conditions 191–192 League of Nations 48–49, 75, 97, 98 n. 177, 131–133, 191, 257, 343 Least-developed countries (LDCs) 142, 149, 222, 344

360 Most-favored-Nation (MFN) 80–81, 85, 141, 148–149, 164, 204, 217, 226–227, 313 Mutual Supportiveness 177–178, 184, 188, 317 Norm conflict See conflict North American Free Trade Agreement (NAFTA) Environmental regulation 150, 182, 213 Investor-state arbitration xv, 130, 145, 155, 164 n. 595, 165–166, 175, 283, 286, 296–297, 299, 305 n. 1085, 321, 341, 343–344, 352 Labor regulation 193 National treatment 38, 85, 134, 135 n. 310, 189, 204, 226–227 New International Economic Order (NIEO) 146, 160–161 Non-Disputing Parties (NDPs) submission  296, 304 Non-governmental organizations (NGOs) 51, 73, 100, 105–106, 116, 296 n. 1055, 297–299, 304, 314 n. 1123, 340 Non-trade, Non-investment objectives Access to water 209, 291, 297–298, 314, 321 Cultural heritage 288, 289 n. 1030, 313, 321, 337 Environment x, 1, 15–16, 34, 43 n. 155, 48, 99, 121, 131, 142–143, 147, 150, 152, 165, 178, 180 n. 632, 182–186, 188, 190, 191 n. 662, 194 n. 669, 197–198, 208, 224, 228, 241, 249, 260, 262, 266 n. 941, 267 n. 946, 272 n. 970, 290, 301, 320 n. 626, 321, 326, 337, 342, 344–345, 347, 350, 354–355 Human rights ix–x, xx, 1–9, 15, 21, 23, 28, 47, 50–54, 57–58, 61, 64, 67–73, 75, 97–124, 126–131, 147, 152–153, 157, 161, 165, 167–173, 175, 191, 197 n. 675, 198–219, 221–226, 228–229, 233, 236–237, 239, 241, 243–244, 258–259, 266, 270, 273, 280–288, 291–294, 296–304, 306–308, 313–323, 325–334, 336, 339–350, 352–356 Labor 49, 75, 152, 191–198, 214, 224, 279, 317, 341–342, 345, Public health 1, 5–6, 128 nn. 466, 469, 201, 203, 212, 213 nn. 724–725, 215–216,

Index 218, 219 n. 750, 220–221, 222 n. 757, 227, 262, 266, 273–274, 293–295, 298, 305, 317, 332, 351, 357 Public morals 192, 214–215, 274–279, 281, 317 Racial discrimination 113–114, 123, 128 n. 467, 191 n. 663, 226, 235, 287–288, 318, 321 Sanitary regulation 267, 321 Organisation for Economic Co-operation and Development (OECD) 145, 156–157, 163, 206–207, 318, 356–357 Peace of Westphalia 55, 62–65, 68, 69 n. 67, 344 Peremptory norms See Jus cogens Pharmaceutical companies 218–219 Piracy 61, 235 Privatization 291–292, 299, 314 Public health and trade See Non-trade, Non-investment objectives Public morals See Non-trade, Non-investment objectives Regime Regime accommodation ix, 8, 47–48, 175 Regime conflict 5, 7, 26–27, 30–33, 36, 44–48, 176, 244–245, 261, 283, 317, 319, 322–323, 333 Regime interaction 7–8, 10, 14 n. 36, 24–26, 47, 53, 327, 338 Regime Theory 11, 14, 16, 330, 334 Ricardo, David 334 Right to education 110, 125, 204 Right to food See ICESCR Right to health See ICESCR Right to water See ICESCR Regional human rights court 118, 129 Sanitary regulation See Non-trade, Non-investment objectives Self-contained regime 14 n. 17, 15 n. 23, 16–24, 26 n. 71, 347, 350 Slave trade 49, 67 n. 57, 72–73, 235, 239, 317 Smith, Adam 336 Smoot-Hawley tariff 133 Special Rapporteurs and Human rights under the UN mandates 175, 200, 205, 250, 318

Index Sub-Commission on the Promotion and Protection of Human Rights Creation and structure 11–12, 14, 24, 99–100, 159, 168, 170, 231 Human rights and trade 5, 202–203, 213 n. 726 Systemic integration in treaty interpretation 248–249, 260, 320, 347 WTO Trade Negotiations Rounds 182 Tobacco control xiii, 212, 294–295, 305–306, 351 Trade Policy Review Mechanism (TPRM) 222–224, 319 Treaty interpretation Evolutionary interpretation 257 Lex posterior 179 n. 631, 239–241, 244, 319 Lex specialis 20, 23, 37, 39, 239, 241–244, 319, 347 Lex superior 232, 238, 319 Systemic integration (VCLT Article 31(3)(c)) See above Vienna Convention on the Law of Treaties (VCLT) 32 n. 106, 33 n. 110, 124 n. 446, 170, 179, 220 n. 751, 230–235, 240–241, 243, 245 n. 853, 248, 250–251, 254, 267, 269, 311–312, 318, 320 TRIPS (Agreement on Trade Related Aspects of Intellectual Property) Compulsory licensing 219–222, 274 Developing countries 6, 102, 136, 139, 142, 145–150, 153–154, 161–163, 186, 193, 207, 218–219, 221–222, 229, 263, 268, 291, 299, 325, 330, 345, 351, 356 Doha Declaration 154, 185 n. 648, 216, 219 n. 750, 220–221, 317, 357 TRIPS Waiver 216, 218, 221–222 UN Charter 1 n. 4, 31, 98, 33 n. 92, 101, 103, 106, 123 n. 262, 233 n. 163, 234, 257, 305, 341

361 UN High Commissioner for Human Rights 112, 199, 201 n. 61, 202 n. 63, 203 n. 70, 355 Unequal treaties 86–87, 325, 334, 338 United Nations Educational, Scientific, and Cultural Organization (UNESCO) 50, 178, 200, 277, 288–289, 313, 318, 321 Universal Declaration of Human Rights (UDHR) 101–103, 106, 109, 110 n. 403, 112, 118–119, 122, 123 n. 441, 126–128, 172 n. 614, 172 n. 614, 191 n. 663, 224, 225, 282, 312, 327, 333, 336 Universal Periodic Review (UPR) 105 Vienna Convention on the Law of Treaties (VCLT) See Treaty Interpretation Waiver 149, 197, 216, 317, 344, 348, 357 Westphalian Tradition 55 n. 194, 57, 328 Withdrawals from the ICSID 167 World Bank 87 n. 129, 137, 154 n. 376, 162, 163 n. 409, 181, 192 n. 41, 201, 205, 291, 319, 329, 335 World Health Organization (WHO) 51, 200, 212–213, 219, 222, 263, 295–296, 305–306, 318, 332 World Trade Organization (WTO) 5–7, 9, 15–16, 21, 30–32, 34, 35 n. 122, 36–41, 43 n. 155, 44, 45 n. 165, 46 n. 172, 51–52, 100, 130, 132, 141, 147–149, 150 n. 540, 151–154, 163, 168, 171, 174, 176–177, 181, 183 n. 639–640, 184–186, 190, 192–193, 199–205, 207–210, 213–214, 216–223, 229, 236, 244, 262, 264, 266–282, 296, 313, 317–321, 325, 327, 329–332, 334, 336–337, 339–340, 340, 344, 347–352, 356–357 World War II and the aftermath 65, 88, 94 n. 345, 157 WTO General Exceptions 204