The Place of Human Rights in Investor-State Arbitration’(2013)

Human rights arguments are appearing with increased frequency in investor–state arbitration. States and amici curiae may raise them as defenses to the challenged state action. Occasionally, investors rely on human rights principles, such as due process and non-discrimination, to support their claims against states. Arbitral tribunals, while not uniformly ignoring human rights arguments, have not fully embraced them either. This development, in turn, has led to heightened criticism of investor–state arbitration. A process, which is largely grounded in international law, is considered by some to be devoid of a critical aspect of that law, namely treaty and customary human rights norms. This Essay analyzes an approach for tribunals to give effect to human rights yet do so in a structured and legally sound manner. It recognizes that tribunals should respect jus cogens norms and other human rights based arguments that have priority under international law, such as those emanating from the UN Security Council, yet largely do so when they are raised as defenses. As discussed, deference to Security Council action is more complex as arbitral tribunals, unlike the European Court of Human Rights and the European Court of Justice, lack a broader human rightsbased mandate. The Essay also sets out two interpretive means for tribunals to use the language of international investment agreements to give effect to legitimate human rights concerns.