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Inter-regime conversations: What barriers persist for individuals in international law?

Published online by Cambridge University Press:  28 October 2021

Nicholas J. Diamond  and
Kabir A. N. Duggal
Nicholas J. Diamond
Affiliation:
Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001, United States Email: njd9@georgetown.edu
Kabir A. N. Duggal
Affiliation:
Harvard Law School, 1563 Massachusetts Avenue, Cambridge, MA 02138, United States Email: kduggal@sjd.law.harvard.edu
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Abstract

Individuals have long occupied a precarious position within international law. Historically, conceived as the relation between states, international law rarely saw a need to consider individual claims; it was, instead, the role of states to bring claims on behalf of their nationals. As international law has become increasingly fragmented, however, globalization has thrust the individual onto the international legal plane.

Within this landscape, we briefly consider individuals’ claims across three separate international regimes: (i) the International Court of Justice, (ii) investment treaties, and (iii) the World Trade Organization. We find that barriers for individuals’ recognition as rights holders persist across each. First, jurisdictional barriers remain fundamentally problematic for recognizing individuals’ claims. Second, the longstanding focus on treaty interpretation techniques has yielded little, if any, demonstrable impact on recognizing individuals’ rights. Third, mere reliance on reflecting human rights values, rather than specific and concrete structural reforms, has proven incompatible with realizing individuals’ rights within these three systems.

Individuals qua rights holders have, rather acutely, recently experienced deeply troubling human rights violations on several fronts. Fundamentally, international law must protect human rights. This moment invites us to consider the systems on the international legal plane for individuals to seek such remedy and what barriers must be addressed to further such efforts.

Keywords

comparative lawinternational human right lawinternational investment lawinternational trade lawpublic international law

Information

Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 35 , Issue 1 , March 2022 , pp. 71 - 84
Copyright
© The Author(s), 2021. Published by Cambridge University Press

‘If you look at it from the point of view of the person concerned, the rights are universal. Talking about cultural relativism is thinking about governments.’ Footnote 1

Dame Rosalyn C. Higgins

1. Introduction

Individuals have long occupied a precarious position within international law. Historically, conceived as the relation between states, international law rarely saw a need to consider individual claims; it was, instead, the role of states to bring claims on behalf of their nationals. As international law has become increasingly fragmented, however, globalization has thrust the individual onto the international legal plane.

We see a changing landscape across several fragments, as they were, in the international legal architecture, suggesting an increasingly robust, if not altogether precisely defined, role for individuals’ claims. Within this landscape, we explore three separate international regimes: (i) the International Court of Justice (‘ICJ’), (ii) investment treaties, and (iii) the World Trade Organization (‘WTO’). The ICJ has witnessed a growth in cases that implicate individual rights, not least human rights specifically. The approach of the ICJ in addressing these claims does not, however, place the individual at the centre of the decision-making process. In investment treaty arbitration, individuals qua foreign investors have always occupied a central role, yet tensions persist between individuals qua rights holders, catalyzing a newfound emphasis on human rights in the context of structural reform efforts. Investment arbitration presents an interesting dichotomy – individuals have direct recourse to dispute resolution, but concurrently investment treaty arbitration may adversely affect the rights of other individuals. Finally, in the WTO system, individuals’ claims remain largely subservient to trade-based considerations between members. This system appears to prioritize trade interests over individual interests.

We briefly consider individuals’ claims across these three regimes acknowledging, at the outset, that each regime may itself have statutory limitations impacting the degree to which it can entertain individuals’ claims, not least regarding human rights. We focus on ‘human rights’ as broadly encompassing civil and political, socio-economic, and cultural rights, as well as third-generation collective rights. In certain instances, where we focus on individualized aspects of human rights, we use the term ‘individual rights’ to distinguish it from the broader scope of ‘human rights’.

We find that barriers, as discussed below, for individuals’ recognition as rights holders persist across each, suggesting the need for specific and deliberate reforms, as well as greater dialogue between regimes. First, jurisdictional barriers remain fundamentally problematic for recognizing individuals’ claims. Second, the long-standing focus on treaty interpretation techniques has yielded little, if any, demonstrable impact on recognizing individuals’ rights. Third, and finally, mere reliance on reflecting human rights values, rather than specific and concrete structural reforms, has proven incompatible with realizing individuals’ rights within these three systems.

Looking ahead, we are reminded of the shared fate of law and society. Individuals qua rights holders have, rather acutely, recently experienced deeply troubling human rights violations on several fronts. Fundamentally, international law must protect human rights. This moment invites us to consider the systems on the international legal plane for individuals to seek such remedy and what barriers must be addressed to further such efforts.

2. Representation of the claims of individuals before the ICJ

Scholars have long grappled with the notion of integrating individual claims into the international legal system. Traditional conceptions of international law permit only cases between states, barring a few limited exceptions for disputes concerning issues such as human rights violations. The limited role of an individual before international courts and tribunals also figured in the drafting of the Statute of the Permanent Court of International Justice (‘PCIJ’).Footnote 2 In Diallo,Footnote 3 the ICJ indicates nascent support for state espousal of individual claims; however, subsequent cases have not focused on individual rights.

2.1 The tempestuous role of an individual before the ICJ

Article 34(1) of the Statute of the ICJ explicitly provides that only states are capable of being parties before the ICJ.Footnote 4 Therefore, individuals do not possess ‘international legal personality’ and cannot bring an action directly before the ICJ. However, the ICJ’s jurisprudence permits the representation of individuals’ grievances, either through principles of diplomatic protection or by reference to violation of individual rights (including human rights)Footnote 5 under human rights treaties, as seen in Diallo.Footnote 6

The rules of diplomatic protection have a long history dating to 1758 when VattelFootnote 7 explained that injuring a citizen indirectly injures the state, which in turn must offer the citizen protection.Footnote 8 The PCIJ addressed the role of an individual for the first time in Mavrommatis in the context of diplomatic protection,Footnote 9 which reiterated a state’s entitlement to protect its citizens from acts of other states that are contrary to international law.Footnote 10 In Mavrommatis, the PCIJ held that when a state takes up the ‘case of one of its subjects and resorts to diplomatic action or international judicial proceedings on his behalf, the State is asserting its own right to ensure, in the person of its subjects, respect for the rules of international law’.Footnote 11 However, the judgment also emphasized the limited role of the individual by declaring the state to be exercising its own right of protection and being the ‘sole claimant’.Footnote 12

In subsequent cases, the ICJ held that while certain rights are vested in individuals, the enforcement of these rights must be sought by the state. For example, in LaGrand,Footnote 13 the ICJ unequivocally affirmed that Article 36(1) of the Vienna Convention on Consular Relations (‘VCCR’), which allows nationals to communicate freely with their country of origin while abroad,Footnote 14 created individual rights. These rights could be invoked by a state on behalf of its nationals by virtue of Article 1 of the Optional Protocol to VCCR concerning the Compulsory Settlement of Disputes.Footnote 15 In this case, two German nationals had been convicted and sentenced to death by the United States without being able to receive consular assistance from Germany. The ICJ held that a state is empowered to institute international judicial proceedings by taking up the case of its nationals arising out of a treaty like the VCCR which creates individual rights.Footnote 16 Therefore, while the individual possesses the right to be informed of his or her rights, the state may initiate proceedings to enforce such rights.Footnote 17 In this regard, the ICJ ruled in favour of Germany, holding that the United States had impeded German citizens from receiving assistance to which they were entitled.

In other cases, the ICJ has treated the rights as interdependent. For example, in the 2004 judgment of Avena,Footnote 18 the rights of the individual and those of his or her state were classified as ‘interdependent’.Footnote 19 Here, various Mexican nationals residing in the United States were sentenced to death. Mexico requested the ICJ for the indication of provisional measures to ensure that its nationals would not bet executed. The United States argued that the ICJ did not have jurisdiction to decide on Mexico’s claim to exercise diplomatic protection as Mexico had not exhausted municipal remedies. However, the ICJ held that the duty of exhaustion of local remedies does not apply to disputes where the claimant state is asserting its own rights for injuries it has suffered directly through its nationals.Footnote 20 Therefore, even without exhausting local remedies, individuals continue to enjoy diplomatic protection as interdependent rights.Footnote 21

2.2 A minority view supports the role of an individual before the ICJ

There have also been instances of justices of the ICJ shifting from a state-centric approach, to a human rights-based, individual-centric approach. In his dissenting opinion in Georgia v. Russia,Footnote 22 Justice Trindade stresses upon the need for the Court to be attentive towards the ‘sufferings and needs of protection of the population’.Footnote 23 He criticizes the ICJ’s reasoning as based upon a ‘diplomatic and bilateral’ inter-state resolution, rather than basing judgment upon the aspect of ‘vulnerability, if not defencelessness’ of the victimized people at the centre of the dispute.Footnote 24 He builds upon the approach in Ukraine v. Russia,Footnote 25 where he argues that the principle of pro persona humana, pro victima prescribes human rights conventions to move beyond inter-state paradigms,Footnote 26 to adequately ‘safeguard rights of the human person’.Footnote 27

2.3 Looking ahead: What is the future of individual rights before the ICJ?

The ICJ is currently facing a series of politicized disputes that involve, inter alia, rights of individuals. However, none of these cases particularly focus on individual rights per se. This is despite the fact that cases such as Gambia v. Myanmar (dealing with the rights of the Rohingya minority), or Qatar v. UAE case (dealing with racial discrimination), centrally pertain to individual rights. Indeed, the ICJ in the decision on provisional measures in Qatar v. UAE ruled:

The Court recalls, as it did in past cases in which CERD was at issue, that there is a correlation between respect for individual rights, the obligations of States parties under CERD and the right of States parties to seek compliance therewith … The Court notes that Articles 2, 4, 5, 6 and 7 of CERD are intended to protect individuals from racial discrimination. Consequently, in the context of a request for the indication of provisional measures, a State party to CERD may avail itself of the rights under the above-mentioned articles only if the acts complained of appear to constitute acts of racial discrimination as defined in Article 1 of the Convention.Footnote 28

As such, individual rights continue to operate in the subsidiary role, which hampers efforts for direct recognition of such rights. The role of the ICJ in promoting individual rights is yet to be fully tested. But, as a judicial body that focuses on international law broadly, the ICJ can play a pivotal role in clarifying and promoting the role of individual rights in international law.

3. ISDS: To the rescue of individual rights? A possible expansion of individual voices in international law?

While only states can bring disputes before the ICJ, the Investor-State Dispute Settlement System (‘ISDS’), which is the prominent mode of dispute settlement under international investment agreements (‘IIAs’), is predicated on individual participation and representation. However, it only permits direct action by individuals against the host state in their capacity as foreign investors under the relevant IIA. Indeed, the role of investor-state arbitration in promoting individual rights is a precarious one because, on the one hand, it empowers individuals to hold states accountable but, on the other hand, it creates narrowly privileges ‘foreign’ investors over other individuals and, thereby, can negatively impact individual rights. As such, if foreign investment projects impact individuals’ rights, individuals are only traditionally able to rely on available domestic remedies, not ISDS, to seek to hold foreign investors accountable. For ISDS, therefore, the question is whether the scope of an IIA can extend beyond IIA protections to include human rights obligations that may relate to the investment.

3.1 Jurisdictional limitations to entertaining human rights claims related to the investment

ISDS tribunals derive their jurisdiction from the consent of the parties as reflected in the governing agreement between the disputing parties.Footnote 29 Therefore, a tribunal would enjoy jurisdiction to adjudicate human rights issues only if (i) the dispute resolution clause in the IIA is wide enough to encompass human rights issues, or (ii) the IIA contains human rights obligations.

Therefore, tribunals may, in principle, take human rights into consideration.Footnote 30 Some tribunals have noted that the scope of the dispute resolution clause determines whether human rights claims may be raised. In Spyridon,Footnote 31 the tribunal held that it did not have jurisdiction, as Article 9(1) of the IIA provided only for jurisdiction in relation to ‘disputes … concerning an obligation of the [respondent State]’.Footnote 32 Tribunals may also exercise jurisdiction where human rights violations are directly tied to the foreign investment, but not as an independent claim.Footnote 33 In Biloune v. Ghana,Footnote 34 for example, the tribunal held that the arbitration was restricted to disputes ‘in respect of’ the foreign investment and that it lacked jurisdiction to address human rights claims as an independent cause of action.Footnote 35

3.2 Using counterclaims to raise human rights-related arguments

States are recently filing counterclaims rooted in human rights arguments,Footnote 36 pursuant to Article 46 of the ICSID Convention, which provides that the counterclaims must arise ‘directly out of the subject matter of the dispute’.Footnote 37 The requirements are further described in Rule 40 of the ICSID Arbitration Rules.Footnote 38 Nonetheless, the case law regarding counterclaims is limited. The tribunal in Urbaser Footnote 39 held that investors may be liable under counterclaims only if the right in question is an obligation of the investor and not the state. Indeed, the tribunal concluded that the implementation of the right to water as a positive obligation resides with the state and not the investor.Footnote 40

While states may contend that the investor violated the human rights of the state’s citizens, they cannot bring those claims before investment tribunals if the applicable IIA excludes jurisdiction over counterclaims.

3.3 Reliance on human rights principles by virtue of the preamble of the IIA

The preamble to an IIA outlines the objectives of the IIA,Footnote 41 simultaneously providing the context for interpreting individual treaty clauses in investment disputes.Footnote 42 For example, in Saluka,Footnote 43 the tribunal relied on the preamble to interpret the context in which the fair and equitable standard must be interpreted.Footnote 44

Some IIAs refer generally that the parties shall have regard to human rights principles Footnote 45 or refer to specific human rights instruments, such as the Universal Declaration of Human Rights (‘UDHR’).Footnote 46 Such general invocations represent the most common means of referencing human rights in IIAs.Footnote 47 Other IIAs, however, refer to specific rights, such as workers’ rights, labour standards, or standards for the protection of the environment.Footnote 48 In both instances, the dispositive effect of the incorporation of human rights values in IIAs remains limited.

3.4 Human rights principles referenced in IIAs’ operative provisions

Many IIAs include operative provisions regarding human rights, either directed to states or less commonly investors, and typically nonbinding.Footnote 49 The effectiveness of such provisions has not been studied or tested in any meaningful manner yet.

Some IIAs, such as the 2016 Morocco-Nigeria BIT, make general references, stating that investors and investments ‘shall uphold human rights in the host state’.Footnote 50 Some IIAs require investors to conduct their business in a manner consistent with human rights provided in particular international covenants or with human rights standards by which the host state is bound. The 2017 Intra-MERCOSUR IIA, for example, requires investors to uphold human rights and conduct business in a manner consistent with the host state’s human rights obligations under international treaties, on a best-effort basis.Footnote 51

Other IIAs provide that the investor should comply with particular international commitments, such as by reaffirming the host state’s obligations as a member of the International Labour Organization.Footnote 52 Even other IIAs refer to human rights notions in provisions on specific investment protection standards and carve out regulatory measures that result in indirect expropriation.Footnote 53

Finally, other IIAs contain non-lowering of standards clauses,Footnote Footnote 55 which preclude the parties from encouraging an investment that weakens national legal priorities concerning labour or the environment.

Table 1 and Figure 1, above, show select examples of how IIAs incorporate human rights principles.

Table 1.

Incorporation of Human Rights Principles in IIAsFootnote 54

Figure 1.

Methods of Incorporation of Human Rights Principles in IIAs.

3.5 Invoking human rights under Article 31(3)(c) of the VCLT

Article 31(3)(c) of the Vienna Convention on the Law of Treaties (‘VCLT’) provides that while interpreting a treaty, ‘any relevant rules of international law applicable’ should be taken into account. This interpretative technique has found limited recognition in the efforts to reconcile international human rights law and ISDS. In Tulip Footnote 56 and Urbaser,Footnote 57 the tribunals held that based on Article 31(3)(c), international human rights norms applicable to both parties would be relevant to the interpretation of the IIA. This interpretative technique might be relevant because IIAs are often broadly framed and contain open-textured provisions.Footnote 58 As discussed in Section 4.2.2, the WTO has likewise applied Article 31(3)(c). However, in both instances, as an interpretative technique, Article 31(3)(c) remains limited for augmenting the role of individuals qua rights holders in ISDS.

3.6 How have arbitral tribunals interpreted human rights provisions?

Tribunals have, in certain instances, been willing to interpret human rights issues as part of their deliberative process, suggesting a more prominent role for individuals’ rights within ISDS. For example, in Al Warraq,Footnote 59 the investor had been incarcerated in Indonesia.Footnote 60 The tribunal interpreted the investor’s arrest and subsequent criminal proceedings in light of good faith obligations and due process rights, invoking provisions of the International Covenant on Civil and Political Rights (‘ICCPR’),Footnote 61 along with judgments of the Inter-American Court of Human Rights,Footnote 62 and the European Court of Human Rights.Footnote 63 States have also relied upon human rights laws to justify state actions or to show violations of human rights by the investor.Footnote 64 In Impregilo,Footnote 65 Argentina contended that its measures were not expropriatory to the investor and were exercised under its regulatory powers in order to guarantee its inhabitants the human right to water. Footnote 66 Further, it also claimed that its obligations under the IIA must not be construed on a stand-alone basis, but in accordance with the rules on protection of human rights. Footnote 67 Nonetheless, while the tribunal rejected the investor’s claims, it did not analyse Argentina’s human rights arguments. In Philip Morris,Footnote 68 on the other hand, the tribunal deferred to the host state’s judgment in matters concerning the protection of public health.Footnote 69

3.7 Return of state-to-state arbitration in investment arbitration

Another significant development in investment policy is the role of Brazil as a proponent of state-to-state arbitration in place of investor-state arbitration. While Brazil had a sluggish start in the IIA regime,Footnote 70 it has embarked on a robust investment policy based on its 2015 Model Investment Agreement.Footnote 71 During this phase, however, Brazil has moved away from the investor-state dispute settlement towards a multi-step process that culminates in a state-to-state dispute settlement.Footnote 72 Brazil has signed several treaties since 2015 with other states based on this model.

This model of state espousal harkens back, perhaps, to the days of diplomatic protection, as formulated in the Mavrommatis. Footnote 73 The requirements for the invocation of proceedings are also similar to the requirements in the Mavrommatis era of diplomatic protection.Footnote 74 The query is whether we are seeing a return to traditional modes of protecting individuals in international law.

3.8 Looking ahead: What is the future of individual rights in investment arbitration?

The backlash against investment arbitration has resulted in a multi-prong approach to ISDS reform, including discussions at UNCITRAL Working Group III,Footnote 75 amendments to the ICSID Arbitration Rules,Footnote 76 and a European proposal to create a multilateral investment court.Footnote 77 These proposals seek to address the procedural shortcomings in investment arbitration by promoting, inter alia, greater transparency, increased third-party participation, and reduced risk of regulatory chill. The reform process does not, however, address substantive questions on investment arbitration that may impact individual rights. The conflicting role of investment arbitration as a regime that can both promote and impede individual rights will likely persist.

Separately, related developments may further impact the role of the individual in the ISDS regime. For example, the Hague Rules on Business and Human Rights Arbitration, the final text of which was released in December 2019, seeks to afford individuals an alternative mechanism, outside of domestic remedies, through which to arbitrate wrongful business conduct.Footnote 78 As another example, recent efforts to explore a legally-binding instrument to regulate under international human rights law the activities of transnational corporations and other business enterprises would expand accountability for wrongful business conduct on the international plane.Footnote 79 While neither of these developments directly relate to ongoing ISDS reform efforts, they may indirectly impact the role of the individual within the ISDS regime, owing to their impact on both individual remedies and potentially binding international obligations for corporations.

4. Human rights at the WTO: Minimal opportunity for individuals

The relationship between the WTO system and international human rights law remains complex, originating not least with the relegation of workers’ rights to the International Labour Organization, which lacks a dispute settlement mechanism.Footnote 80 Put simply, the WTO system is not designed for individuals. Only members, not individuals, have rights within the WTO system.Footnote 81 While WTO law acknowledges non-trade norms relating to human rights,Footnote 82 the WTO system affords minimal opportunity for individuals to raise human rights considerations. Indeed, it prefers to reflect values applying to individuals, rather than rights, which cuts against the tradition in international human rights law to harden values into rights to engender binding norms.Footnote 83 Accordingly, several barriers to recognizing individuals qua rights holders persist. These barriers prioritize trade-based norms and the role of members, not individuals, in the dispute settlement process, thereby correspondingly de-emphasizing the fundamental universality of individuals’ rights.

4.1 Fundamental tensions between WTO law and international human rights law

The WTO system views rights in a fundamentally different way than international human rights law.Footnote 84 While international human rights law recognizes the inherent dignity of all human beings, the WTO system empowers individuals instrumentally qua economic agents.Footnote 85 More specifically, while the WTO system recognizes non-discrimination, it is conceived narrowlyFootnote 86 by reference only to international economic issues relating to foreign businesses under, for example, substantive protections like most-favoured-nation treatmentFootnote 87 or national treatment.Footnote 88 Conversely, the ICCPR grants all individuals broadly defined rights regarding non-discrimination, and does not differentiate between nationals and non-nationals.Footnote 89 Likewise, the WTO system endeavours to sustain the rule of law only within the remit of international trade.Footnote 90 Conversely, international human rights law does not cabin the rule of law to the international trade context, but instead positions its relevance relative to individuals qua rights holders.Footnote 91

4.2 Barriers to integrating international human rights law

4.2.1 Jurisdictional Barriers

WTO law does not grant jurisdiction over claims alleging violations of human rights.Footnote 92 The Dispute Settlement Understanding (‘DSU’) applies to disputes brought under so-called covered agreements,Footnote 93 which primarily, though not exclusively, includes multilateral trade agreements.Footnote 94 Disputes are typically complaints by a member(s) alleging the violation of WTO law by another member.Footnote 95 Indeed, the Appellate Body has held that it sees no basis in WTO law for adjudicating non-WTO disputes.Footnote 96 As such, panels or the Appellate Body would not have jurisdiction over claims of violations of human rights, such as those that might in theory be brought by an individual against a member.Footnote 97 Moreover, even if jurisdiction could be granted, the DSU only provides a remedy for recommending that the member bring its measures into conformity with the covered agreement, rather than a direct recourse for the individual rights holder.Footnote 98

4.2.2 Interpretation Barriers

The WTO system, like any specialized regime within the international legal architecture, is not self-contained.Footnote 99 All specialized regimes rely on the shared foundation provided by general international law.Footnote 100 While the Appellate Body has acknowledged this fact,Footnote 101 the DSU generally limits the relevance of non-WTO norms,Footnote 102 not least because of the specific and limited consent given by members to WTO jurisdiction.Footnote 103 In practical terms, such limitations in principle cut against the applicability of international human rights norms in WTO disputes vis-à-vis international trade-based norms.

Reference to international human rights norms may, nonetheless, arise in WTO disputes as an interpretative matter. As discussed in Section 3.5, Article 31(3)(c) of the VCLT provides that ‘[t]here shall be taken into account, together with the context … [a]ny relevant rules of international law applicable in the relations between the parties’.Footnote 104 Panels and the Appellate Body have applied Article 31(3)(c) and narrowly construed its elements. For example, the Appellate Body has held that ‘relevant’ rules ‘must concern the same subject matter as the treaty terms being interpreted’.Footnote 105

As a further example, a panel has concluded that ‘the parties’ referred to all parties to the treaty being interpreted such that if all members were not parties to the two multilateral treaties at issue, this disconnect would result in some members having different obligations from others under the very same provisions.Footnote 106 While this strict reading for ‘parties’ has been defended,Footnote 107 it has likewise been criticized for misapplyingFootnote 108 the definition of ‘party’ in Article 2(1)(g) of VCLT,Footnote 109 as well as ignoring the practical difficulties of achieving robust alignment across all members for any major multilateral treaty and the ‘ironic effect’ of distancing multilateral treaties from the rest of international law as the membership expanded.Footnote 110 Indeed, the Appellate Body later adopted a more balanced approach.Footnote 111

Finally, it must be remembered that, even where Article 31(3)(c) would support the introduction of international human rights law in a WTO dispute, its use would be limited to interpretation.Footnote 112 Indeed, Judge Higgins has notably cautioned against ‘invok[ing] the concept of treaty interpretation to displace the applicable law’.Footnote 113 Accordingly, Article 31(3)(c) provides limited opportunity for raising international human rights law in support of more robust positioning for individual rights within the WTO system.

4.3 WTO Case Law Reveals Minimal Integration with International Human Rights Law

WTO case law has rarely directly mentioned human rights norms, obligations, or courts.Footnote 114 Even in cases where human rights considerations were implicitly relevant, such as the disputes concerning Australia’s Tobacco Plain Packaging Act of 2011, the right to healthFootnote 115 did not factor into resolution of the dispute. Where human rights obligations have been raised, they have operated in the background, such as taking note of certain human rights instruments as part of the factual evidence in a dispute.Footnote 116

However, members need not directly rely on international human rights law, but can instead rely on Article XX of the General Agreement on Trade and Tariffs (‘GATT’) for purposes of sustaining human rights-related measures.Footnote 117 Article XX seeks to preserve the regulatory autonomy of members regarding to measures that are ‘necessary to protect’, inter alia, ‘public morals’Footnote 118 and ‘health’.Footnote 119 Conspicuously, human rights as such are not mentioned. The Appellate Body has broadly interpreted ‘public morals’ under Article XX(a) to refer to ‘standards or right and wrong conduct maintained by or on behalf of a community or nation’.Footnote 120 This expansive definition is cabined, however, by the ‘necessary to protect’ requirement, which the Appellate Body has construed to require a weighing and balancing of several factors and consideration of alternative measures.Footnote 121 Notably, although IIAs typically include general exceptions provisions, they do not generally impose a similar necessity requirement.Footnote 122

Moreover, the chapeau to Article XX indicates that application of Article XX must not be for discriminatory measures between similarly situated states or measures disguised as restrictions on trade.Footnote 123 Appellate Body consideration of this standard in the chapeau reflects a high threshold such that many measures that otherwise fall under the sub-articles of Article XX do not qualify under the standard in the chapeau.

4.4 Looking ahead: What is the role of individual rights before the WTO?

Unlike ISDS, which is currently undergoing a normative renaissance of sorts, the WTO system has recently been burdened by political woes, which have stymied the dispute settlement system, as notably evidenced by the freezing of the Appellate Body.Footnote 124 With the future of the dispute settlement system – and, indeed, the WTO system in toto – in doubt, opportunities for strengthening the role of individuals qua rights holders remain uncertain. Indeed, absent deliberate and focused efforts to remove systemic barriers, as ISDS reform efforts have recently sought to do, recognition of individuals qua rights holders in the WTO system is unlikely to occur, given the aforementioned barriers.

5. What does the future look like?

We have considered individuals’ claims before the ICJ, investor-state arbitral tribunals, and the WTO’s dispute settlement body. In each instance, we witnessed fundamental barriers to the role of individuals qua rights holders, which have persisted over time, despite efforts to better recognize and integrate human rights norms. As the epigraph intimates, mere reliance on states to champion such rights misses the critical universality of the rights themselves. The challenge then becomes evolving the relevant adjudication systems, so as to give primacy to the rights, including the rights holders. We would encourage continued efforts in this regard across the ICJ, investor-state arbitral tribunals, and the WTO’s dispute settlement body, not least in view of the current momentum for human rights both domestically and globally. The reform process both in investment arbitration and trade law provides an opportune moment to systemically consider the role of the individual in international law.

Footnotes

*

The views expressed are personal to both authors and do not reflect the views of any of their institutional affiliations. Both authors reserve their right to change their position.

References

1 L. Dingle, ‘A Legal Journey Through the UN, Academia, and the ICJ: Conversations with Dame Rosalyn Higgins DBE, JSD, FBA, QC’, (2015) 15 Legal Information Management 86, at 90.

2 Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee 16 June–24 July 1920 with Annexes (1920), at 205 (‘It sometimes happens that a private individual who has made a contract with a State, finds it impossible to obtain justice against it on account of a species of privileged right of sovereignty recognised by the legislation and jurisprudence of some countries …’).

3 Ahmadou Sadia Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010, [2010] ICJ Rep. 639.

4 Statute of the International Court of Justice, annexed to the United Nations Charter, San Francisco, 26 June 1945 (‘Statute of the ICJ’), Art. 34(1).

5 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, [2007] ICJ Rep. 582, para. 39 (Diallo (Preliminary Objections)).

6 See Diallo case, supra note 3.

7 J. Dugard, Articles on Diplomatic Protection, 2006, available at legal.un.org/avl/ha/adp/adp.html, para. 2 (‘In 1758 the Swiss jurist Emmerich Vattel expounded the fundamental principle of diplomatic protection when he wrote that “Whoever ill- treats a citizen indirectly injures the State, which must protect that citizen”.’).

8 E. Vattel, ‘The Law of Nations, or the Principles of Natural Law’, in Classics of International Law (1916) (translated by C. Eenwich), at 136.

9 The Mavrommatis Palestine Concessions, Preliminary Objections, Judgment of 30 August 1924, PCIJ Series A No. 2, at 12.

10 Ibid.

11 Ibid. (‘By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law.’).

12 Ibid. (‘Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’).

13 LaGrand (Germany v. United States of America), Judgment of 27 June 2001, [2001] ICJ Rep., at 466.

14 1963 Vienna Convention on Consular Relations, (entered into force 19 March 1967) 596 UNTS 261, Art. 36(1).

15 1963 Optional Protocol concerning the Compulsory Settlement of Disputes (entered into force 19 March 1967) 596 UNTS, Art. 1 (‘Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.’).

16 See LaGrand case, supra note 13, at 483 (‘Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty.’).

17 A. Kjeldgaard-Pedersen, ‘The International Court of Justice and the Individual’, (2019) 169 iCourts Working Paper Series, at 16.

18 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, [2004] ICJ Rep., at 12.

19 Ibid., para. 40.

20 Ibid.

21 Ibid.

22 Application of the International Convention on the Elimination of All Forms of Discrimination (Georgia v. Russian Federation), Judgment on Preliminary Objections of 1 April 2011, ICJ Rep. 2011, at 70 (Judge Cançado Trindade, Dissenting Opinion).

23 Ibid., paras. 144, 194.

24 Ibid. (‘The present Judgment contains only in passim references to the sufferings endured by the victimized population, such as the reference to an agreement concluded by Georgia and the Russian Federation, as early as on 24 June 1992, which stated in the preamble that the parties were striving for “the immediate cessation of the bloodshed” (para. 146).’).

25 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment of 8 November 2019, ICJ Rep. 2019, at 558 (Judge Cançado Trindade, Separate Opinion), (‘Tertius: Human rights conventions, like CERD, go beyond the outdated inter-State outlook, ascribing a central position to the individual victims, rather than to their States.’).

26 Ibid.

27 Ibid.

28 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, ICJ Rep. 2018, at 406, paras. 51–2.

29 C. Reiner and C. Schreuer, ‘Human Rights and International Investment Arbitration’, in P. Dupuy, E. Petersmann and F. Francioni (eds.), Human Rights in International Investment Law and Arbitration (2009), 82, at 83.

30 See T. Meshel, ‘Human Rights in Investor–State Arbitration: The Human Right to Water and Beyond’, (2015) 6 Journal of International Dispute Settlement 277, at 280 (‘It seems, therefore, that any limits placed on an arbitral tribunal’s jurisdiction in an investment treaty or agreement do not necessarily “imply that the tribunal cannot, as a matter of principle, take into consideration human rights issues”.’).

31 Spyridon Roussalis v. Romania, ICSID Case No ARB/06/1, Award, 7 December 2011.

32 Ibid., para. 869 (‘… the Tribunal in its majority considers that the references made in the text of Article 9(1) of the BIT to “disputes … concerning an obligation of the latter” undoubtedly limit jurisdiction to claims brought by investors about obligations of the host State. Accordingly, the BIT does not provide for counterclaims to be introduced by the host state in relation to obligations of the investor.’).

33 See Reiner and Schreuer, supra note 29, at 84 (‘If and to the extent that the human rights violation affects the investment, it will become a dispute “in respect of” the investment and must hence be arbitrable.’).

34 Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana, UNCITRAL, Award on Jurisdiction and Liability, 27 October 1989.

35 Ibid., para. 61.

36 See, e.g., Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016.

37 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Art. 25(2)(a), 18 March 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159, Art. 46.

38 ICSID Rules of Procedure for Arbitration Proceedings, Rule 40(1) (‘Except as the parties otherwise agree, a party may present an incidental or additional claim or counter-claim arising directly out of the subject-matter of the dispute, provided that such ancillary claim is within the scope of the consent of the parties and is otherwise within the jurisdiction of the Centre.’).

39 See Urbaser v. The Argentine Republic case, supra note 36, para. 1210 (‘… the enforcement of the human right to water represents an obligation to perform. Such obligation is imposed upon States. It cannot be imposed on any company knowledgeable in the field of provision of water and sanitation services.’).

40 Ibid.

41 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31(2).

42 Organisation for Economic Co-operation and Development, International Investment Perspectives, 2006, at 145, available at www.oecd.org/investment/internationalinvestmentagreements/40072428.pdf. (‘Investment treaties’ preambles normally serve the purpose of outlining the objectives pursued by the substantive and procedural provisions of the agreements. This is an important function since they provide a “context” for interpreting individual treaty clauses, notably by arbitral tribunals to investment disputes.’).

43 Saluka Investments B.V. v. The Czech Republic, UNCITRAL, Partial Award, 17 March 2006.

44 Ibid., para. 298 (‘The preamble thus links the “fair and equitable treatment” standard directly to the stimulation of foreign investments and to the economic development of both Contracting Parties.’).

45 F. G. Santacroce, ‘The Applicability of Human Rights Law in International Investment Disputes’, (2019) 34 ICSID Review 136, at 144 (‘The first type may be found in the preamble of the relevant instrument … This is by far the most common way of referring to human rights in international investment agreements.’).

46 See, e.g., Free Trade Agreement between the European Union and the Republic of Singapore, (signed 15 October 2018, not in force). (‘Reaffirming their commitment to the Charter of the United Nations … and having regard to the principles articulated in The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948’); Free Trade Agreement between Canada and Republic of Colombia, (signed 21 November 2008, entered into force 15 August 2011); Agreement between the Swiss Confederation and Georgia on the Promotion and Reciprocal Protection of Investments, (signed 3 June 2014, entered into force 17 April 2015).

47 See Santacroce, supra note 45, at 144.

48 The Treaty Between the Government of the United States of America and the Government of the Republic of Albania Concerning the Encouragement and Reciprocal Protection of Investment (1995), Preamble; Agreement between the Government of the Republic of Austria and the Government of the Republic of Azerbaijan for the Promotion and Protection of Investments (2000) (signed 11 January 1995, entered into force 4 January 1998), Preamble.

49 See Santacroce, supra note 45, at 144 (‘But references to human rights may also be contained in the provisions of the so called operative part of the investment treaty.’).

50 Reciprocal Investment Promotion and Protection Agreement between the Government of the Kingdom of Morocco and the Government of the Federal Republic of Nigeria (signed 3 December 2016, not in force), Art. 18(2) (‘Investors and investments shall uphold human rights in the host state.’).

51 2017 Intra-MERCOSUR Cooperation and Facilitation Investment Protocol, Art. 14(2)(b).

52 See Morocco-Nigeria IIA, supra note 50, Art. 18(2).

53 Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, (2016), Annex 8-A (3) (‘For greater certainty, except in the rare circumstance when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.’).

54 Data collected from the IIA Navigator. To find a list of treaties containing any clause, such as a clause on ‘Health and Environment’ in the provisions of IIAs, the appropriate search option ‘Health and environment (any mention in the text, except in the preamble)’ was selected. Further, the search queries of ‘Yes’ and ‘Inconclusive’ were selected from the available query options. The search was not restricted to any separate time period. Data updated as of May 2020, available at investmentpolicy.unctad.org/international-investment-agreements/iia-mapping.

55 Agreement for the Promotion and Reciprocal Protection of Investment between the Government of the Republic of Austria and the Government of the Republic of Kazakhstan (signed 12 January 2010, entered into force 21 December 2012) (‘Article 4 Investment and Environment: The Parties do not encourage an investment by weakening the requirements of its national legislation in the field of environment.’).

56 Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey, ICSID Case No. ARB/11/28, Decision on Annulment, 30 December 2015, para. 92 (‘Provisions in human rights instruments dealing with the right to a fair trial and any judicial practice thereto are relevant to the interpretation of the concept of a fundamental rule of procedure as used in Article 52(1)(d) of the ICSID Convention. This is not to add obligations extraneous to the ICSID Convention. Rather, resort to authorities stemming from the field of human rights for this purpose is a legitimate method of treaty interpretation.’).

57 See Urbaser v. The Argentine Republic, supra note 36, para. 1200 (‘The Tribunal further retains that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties of May 23, 1969, and that Article 31 §3 (c) of that Treaty indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties.” The BIT cannot be interpreted and applied in a vacuum. The Tribunal must certainly be mindful of the BIT’s special purpose as a Treaty promoting foreign investments, but it cannot do so without taking the relevant rules of international law into account. The BIT has to be construed in harmony with other rules of international law of which it forms part, including those related to human rights.’).

58 See Santacroce, supra note 45, at 149 (‘Against this background, systemic integration certainly makes human rights norms applicable as interpretative tools in investment treaty disputes. In practice, because most investment treaties contain broadly framed and open-textured provisions, resort to systemic integration is particularly valuable.’).

59 Hesham T. M. Al Warraq v. Republic of Indonesia, UNCITRAL, Final Award, 15 December 2014.

60 Ibid., para. 177 (‘The Claimant argues that by virtue of Article 31.3(c) of the Vienna Convention on the Law of Treaties (“VCLT”), the basic rights and guarantees accorded to the Claimant by virtue of Article 10.1 of the OIC Agreement must be interpreted to include basic international law norms and rights.’).

61 Ibid., paras. 560, 561 (‘When a State becomes a party to the ICCPR by ratification of the Covenant it enters into a set of relationships with the individuals within its jurisdiction, and with other State parties … As a consequence, the State Party undertakes to refrain from doing anything injurious to human rights and do everything to ensure respect for human rights of the individual person concerned. It is the failure to honour this obligation that amounts to a violation of the principle of good faith.’).

62 Ibid., para. 574 (‘Various international human rights bodies consider that the presumption of innocence is violated whenever public authorities or representatives of government make public statements, which prejudge the outcome of particular criminal proceedings. As the Inter-American Court of Human Rights (“IACHR”) stated: …’).

63 Ibid., para. 575 (‘The European Court of Human Rights (“ECHR”) applying Art. 6(2) of the European Convention on Human Rights, also held that the statements made …’).

64 See Santacroce, supra note 45, at 138 (‘… host States may rely on international human rights law also to advance human rights counterclaims where the investor has failed to conduct its business properly in critical sectors for the human rights of the host State’s population’.).

65 Impregilo S.p.A. v. Argentine Republic, ICSID Case No. Arb/07/17, Award, 21 June 2011.

66 Ibid., para. 228 (‘… the regulatory powers of the State were particularly important in order to guarantee its inhabitants the human right to water’.).

67 Ibid., para. 230 (‘… the obligations assumed by the Argentine Republic as regards investments do not prevail over the obligations assumed in treaties on human rights. Therefore, the obligations arising from the BIT must not be construed separately but in accordance with the rules on protection of human rights. Treaties on human rights providing for the human right to water must be especially taken into account in this case’.).

68 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, Award, 8 July 2016.

69 Ibid., para. 399 (‘The responsibility for public health measures rests with the government and investment tribunals should pay great deference to governmental judgments of national needs in matters such as the protection of public health.’).

70 J. P. Muniz, K. A. N. Duggal and L. A. S. Peretti, ‘The New Brazilian BIT on Cooperation and Facilitation of Investments: A New Approach in Times of Change’, (2017) 32 ICSID Review 404, at 405 (‘This is because Brazil, as the world’s ninth largest economy, remained a major investment destination despite not participating in the international investment regime. Indeed, while Brazil had signed BITs in the past, none of these were ratified by Brazil, so they never came into force.’).

71 Ibid.

72 Cooperation and Facilitation Investment Agreement between the Federative Republic of Brazil and ___, 2015 Part III – ‘Institutional Governance and Dispute Prevention’.

73 See The Mavrommatis Palestine Concessions case, supra note 9.

74 See supra Section 2.1.

75 See United Nations Commission on International Trade, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fourth session (Working Group III Report, 2017).

76 International Centre for Settlement of Investment Disputes, Proposal for Amendment of the ICSID Rules, Working Paper #4(2020).

77 ISIID, ‘Investment Court System Proposed by European Commission’, Investment Treaty News, 26 November 2015, available at www.iisd.org/itn/2015/11/26/investment-court-system-proposed-by-european-commission/.

78 The Hague Rules On Business and Human Rights Arbitration, December 2019, available at www.cilc.nl/cms/wp-content/uploads/2019/12/The-Hague-Rules-on-Business-and-Human-Rights-Arbitration_CILC-digital-version.pdf.

79 Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UN Doc. A/HRC/RES/26/9 (2014).

80 D. Chow, ‘China and Human Rights in International Trade’, (2012) 9 South Carolina Journal of International Law and Business 13, at 21–2.

81 S. Joseph, ‘Relationship Between the WTO and International Human Rights Law’, in S. Joseph (ed.), Blame it on the WTO?: A Human Rights Critique (2011), 32, at 36.

82 E.g., 1947 General Agreement on Tariffs and Trade, 61 Stat. A-11, T.I.A.S. 1700, 55 UNTS 194, Preamble; 1994 Marrakech Agreement Establishing the World Trade Organization, Ann. 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights, 33 I.L.M. 81, Art. 7.

83 H. Hestermeyer, ‘International Human Rights Law and Dispute Settlement in the World Trade Organization’, in M. Scheinin (ed.), Human Rights Norms in ‘Other’ International Courts (2019), 199, at 224.

84 Cf. C. Dommen, ‘Raising Human Rights Concerns in the World Trade Organization: Actors, Processes and Possible Strategies’, (2002) 24 Human Rights Quarterly 1, at 13–15.

85 P. Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’, (2002) 13 European Journal of International Law 815, at 826.

86 See Joseph, supra note 81, at 38.

87 See TRIPS, supra note 82, Art. 4.

88 Ibid., Art. 3.

89 See 1966 International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 26.

90 See Joseph, supra note 81, at 39.

91 See, e.g., International Covenant on Civil and Political Rights, supra note 89, Art. 9.

92 See Hestermeyer, supra note 83, at 205, 207.

93 1994 Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Agreement, Ann. 2, 33 I.L.M. 1226, Arts. 1.1, 3.2.

94 Ibid., Ann. 1.

95 See Hestermeyer, supra note 83, at 207.

96 See Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, 6 March 2006, para. 56.

97 G. Marceau, ‘WTO Dispute Settlement and Human Rights’, (2002) 13 European Journal of International Law 753, at 763.

98 Supra note 93, Art. 19(1).

99 See B. Simma, ‘Self-Contained Regimes’, (1985) 16 Netherlands Yearbook of International Law 111, at 117.

100 P. Dupuy, ‘A Doctrinal Debate in the Globalisation Era: On the Fragmentation of International Law’, (2007) 1 European Journal of Legal Studies 25, at 27.

101 See US – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, at 17.

102 Supra note 93, Arts. 3.2, 7.1, 7.2, 19.2.

103 R. Harris and G. Moon, ‘GATT Article XX and Human Rights: What Do We Know From the First 20 Years?’, (2015) 16 Melbourne Journal of International Law 432, at 441.

104 See Vienna Convention on the Law of Treaties, supra note 41, Art. 31(3)(c).

105 US – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, 11 March 2011, para. 308.

106 EC – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, 29 September 2006, para. 7.70.

107 C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’, (2005) 54 International and Comparative Law Quarterly (2005) 279, at 315.

108 B. McGrady, ‘Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC – Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’, (2008) 42 Journal of World Trade 589, at 594.

109 See Vienna Convention on the Law of Treaties, supra note 41, Art. 2(1)(g) (‘a State which has consented to be bound by the treaty and for which the treaty is in force’).

110 Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682, (2006), para. 471.

111 See EC and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, 18 May 2011, para. 845 (‘In a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate balance must be struck between, on the one hand, taking due account of an individual WTO Member’s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members.’).

112 R. Gardiner, Treaty Interpretation (2015), at 320; cf. Hestermeyer, supra note 83, at 212.

113 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, Separate Opinion of Judge Higgins, [2003] ICJ Rep. 161, para. 49.

114 See Hestermeyer, supra note 83, at 216; Harris and Moon, supra note 103, at 434.

115 1966 International Covenant on Economic, Social and Cultural Rights, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 993 UNTS 3, Art. 12.

116 See, e.g., EC – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R and WT/DS401/R, 25 November 2013, para. 7.292.

117 Cf. Hestermeyer, supra note 83, at 218.

118 See GATT, supra note 82, Art. XX(a).

119 Ibid., Art. XX(b).

120 US – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, 7 April 2005, para. 6.465.

121 See EC – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014, para. 5.169.

122 F. Baetens, ‘Invoking Human Rights: A Useful Line of Attack or a Defence Tool for States in Investor-State Dispute Settlement?’, in M. Scheinin (ed.), Human Rights Norms in ‘Other’ International Courts (2019), 227, at 249–50.

123 See GATT, supra note 82, Art. XX.

124 R. Brewster, ‘Can International Trade Law Recover? WTO Dispute Settlement: Can We Go Back Again?’, (2019) 113 American Journal of International Law Unbound 61.

Figure 0

Table 1. Incorporation of Human Rights Principles in IIAs54

Figure 1

Figure 1. Methods of Incorporation of Human Rights Principles in IIAs.