Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law

2009 ◽  
pp. 45-62 ◽  
Author(s):  
Pierre-Marie Dupuy
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Law ◽  
Fragmentation Of International Law

INCOHERENT AND INEFFECTIVE: THE CONCEPT OF PERSISTENT OBJECTOR REVISITED

2010 ◽  
Vol 59 (3) ◽  
pp. 779-802 ◽  
Author(s):  
Patrick Dumberry
Keyword(s):  
Human Rights ◽  
International Law ◽  
Early Stage ◽  
International Investment ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. Articles recently published about the theory focus on its specific application in different areas of international law, including international investment law,1 international humanitarian law2 and human rights law.3 The present article intends to examine the concept of persistent objector in general international law.4

Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law

2020 ◽  
pp. 1-28
Author(s):  
Moshe Hirsch
Keyword(s):  
Human Rights ◽  
Social Movements ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Public Pressure ◽  
Local Actors ◽  
Investment Law

Abstract The recent moderate trend to increasingly apply human rights law in investment awards is accompanied by certain new investment treaties which include expressed human rights provisions. An analysis of recent investment awards indicates that though there are some ‘winds of change’ in this field, it is equally noticeable that human rights law is far from being mainstreamed in international investment law. Investment arbitration procedural law is also undergoing a process of change, and the new procedural rules tend to enhance public elements in the investment arbitral system. This study is aimed at explaining these recent legal changes, highlighting the role of social movements in reframing investment relations as well as increasing public pressure to apply human rights law. These framing changes concern broadening the frame of investment arbitration (beyond the foreign investor–host state dyad), reversing the perceived balance of power between investors and host states, and zooming-in on local individuals and communities residing in host states. The discussion on factors impeding legal change in this field emphasizes the role of the private legal culture prevalent in the investment arbitration system, which is reflected and reinforced by certain resilient socio-legal frames. Informed by this analysis, the study suggests some legal mechanisms which can mitigate the inter-partes frame, and increase the application of human rights law in investment arbitration; inter alia, rigorous transparency rules that are likely to facilitate increased public pressure on tribunals and increase the participation of social movements representing local actors in arbitral processes.

Der eigentumsrechtliche Wertschutz von Anteilsrechten

2021 ◽  
Author(s):  
Jörn Griebel
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
International Investment ◽  
European Convention ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Law ◽  
The Law ◽  
German Constitutional Law

Property protection is provided by national law as well as international law. The study seeks for an explanation regarding the divergent approaches to the protection of shareholders in cases of reflective loss provided for in German constitutional law and various fields of public international law. This is done by way of a comparison of the German approach with those found in the law of aliens, in the European Convention on Human Rights and under international investment law. This results in the finding that approaches of international law partly fail to establish the necessary bonds to recognized concepts of national law.

scholarly journals Interpretation of International Law by National Judges: Opportunities and Challenges. The Case of International Investment Law in Latin America

2018 ◽  
Vol 6 (1) ◽  
pp. 128
Author(s):  
Marcelo Lozada Gómez ◽  
Paola Acosta Alvarado
Keyword(s):  
Latin America ◽  
International Law ◽  
Foreign Investment ◽  
Subject Matter ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Courts ◽  
Investment Law ◽  
Fragmentation Of International Law

The role of national judges in international law is still an undecided subject matter. Most scholars consider the decisions from national judges merely as acts of States, denying the possibility that those judgments constitute an autonomous source of international law. This position is grounded in the idea that national judges do not regularly employ sources of international law, and therefore, their opinion about them is not quite important. Nevertheless, recent phenomena have highlighted and triggered the intervention of national judges regarding the interpretation and enforcement of international law. The growing scope of international rules, which now regulate intra-states issues, as well as the fragmentation of international law, and the internationalisation of national orders, inter alia, have demanded domestic courts’ intervention in order to face these changes and avoid undesirable consequences. In this context, this article aims to: 1. bring an outlook on the evolution of the role assigned to national judges; 2. explore the phenomena that triggered their intervention; 3. analyse the outcomes of this increasing participation, namely how national judges change the usual dynamics of interpretation and evolution of international law; 4. apply these ideas to explain the intervention of national judges in Latin America regarding the enforcement of foreign investment law; and 5. conclude with some remarks about the future of this relationship between national and international law as well as the importance of a better understanding of the role of national judges.

scholarly journals Property in a shrinking planet: fault lines in international human rights and investment law

2015 ◽  
Vol 11 (2) ◽  
pp. 113-134 ◽  
Author(s):  
Lorenzo Cotula
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Resource ◽  
Legal Protection ◽  
International Investment ◽  
Human Rights Law ◽  
International Human Rights ◽  
Investment Law ◽  
International Human ◽  
Property Concepts

AbstractLong at the margins of international law, property is now among the key challenges facing international law- and decision-makers. A ‘shrinking’ planet and a polycentric international law regime provide the backdrop for contestation between different property concepts and claims. While presenting important commonalities in legal concepts and normative content, international investment law and international human rights law protect different and possibly competing rights, reflect different balances of commercial and non-commercial considerations, and embody different standards of legal protection. As the frontiers of natural resource extraction expand, natural resource investments can bring different property concepts and claims directly into tension. In this context, the articulation between investment law and human rights law influences the ways in which international law mediates competition for the world's natural resources, redefining the balance between public and private interests and reshaping spaces for the lawful exercise of state sovereignty.

scholarly journals A Comparison with Analysis of the SADC FIP before and after Its Amendment

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Tinashe Kondo
Keyword(s):  
South Africa ◽  
International Law ◽  
Foreign Investment ◽  
First Generation ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Before And After ◽  
Recent Trends ◽  
Investment Law

Discourses on rights, duties and obligations predominantly take place within the context of constitutional, administrative and human rights law. In the last decade these debates have also begun to take place in international investment law, an "autonomous branch" of international law. The main debate centres on the adequacy and sustainability of investor-centred regulatory regimes which provide more rights than obligations to investors. The 2006 Southern African Development Community Finance and Investment Protocol (SADC FIP) was a typical example of such a regime. It offered antiquated protections which were characteristic of first generation Bilateral Investment Treaties (BITs). The result was that some countries, such as South Africa, opted not to conform to this binding instrument, which did not match their progressive vision of foreign investment. It is against this backdrop that the SADC FIP was recently amended. The amendment, balances the rights and obligations of investors and state parties to some degree, and moves towards sustainable foreign investment. However, this paper argues that more still needs to be done to modernise the document in line with more recent trends.

The Applicability of Human Rights Law in International Investment Disputes

2019 ◽  
Vol 34 (1) ◽  
pp. 136-155 ◽  
Author(s):  
Fabio Giuseppe Santacroce
Keyword(s):  
Human Rights ◽  
International Investment ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
International Human ◽  
Human Rights Norms

Abstract Human rights are becoming increasingly relevant in international investment disputes. A question therefore arises as to whether the application of human rights law to those disputes is justified. This article answers that question in the affirmative. In particular, it suggests that there are at least four legal grounds (which may operate separately or cumulatively) warranting the application of human rights norms in the context of international investment disputes: (i) the fact that international human rights law is part of international law, which in turn governs the merits of investment disputes; (ii) the presence of express references to human rights in the investment treaty; (iii) the presence of implied references to human rights in the investment treaty; and (iv) the principle of systemic integration. Each of these grounds can be the basis for applying international human rights law as an interpretative tool. Some of them, however, can play a more substantive role and justify the direct application of international human rights norms to the merits of the dispute. This may lead to normative conflicts. The article thus also provides a framework to determine, in case of clashes between international investment law and international human rights norms, which norm should apply in concreto.

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