Part II - International Law and Its Interfaces

6 Giving Due Consideration A Normative Pathway between UN Human Rights Treaty-Monitoring Bodies and Domestic Courts

Machiko Kanetake

6.1 Introduction

Human rights law is one of the fields of law that creates the subject matter overlap between international and domestic law. Human rights treaties purport to regulate the governmental authority exercised over individuals, which is, in parallel, regulated by domestic constitutional and administrative law. This overlap creates the deliberative space between human rights treaty-monitoring bodies and national authorities, including domestic courts. In fact, judicial decisions can be at times ‘entangled’ with the findings of UN human rights treaty-monitoring bodies. Domestic courts take note, discuss, accept or resist decisions, comments or observations of UN human rights treaty-monitoring bodies. The quality of such a deliberative space is crucial for the effectiveness of the treaty-monitoring bodies, whose findings ultimately aim at bringing about change to domestic legal frameworks and practices, including those of the judiciary.

Against this background, this chapter engages in the analysis of pathways that guide the deliberative space involving UN human rights treaty-monitoring bodies and domestic courts. Such pathways can be pragmatic or sociological in nature. For instance, the unavailability of treaty body findings in local languages significantly limits public knowledge about them and the likelihood that litigant parties rely on general comments and other treaty body findings. Interactions can be facilitated if judges periodically receive training regarding the work of the monitoring bodies. At the same time, domestic judges’ interactions with treaty body findings have also been guided by normative pathways. They can originate in both international and national law. In limited circumstances, such pathways exhibit a formalistic character that Views, one of the categories of the documents produced by treaty bodies, have legal binding force. Yet it is usually the case that normative pathways are much less dichotomous.

This chapter examines one of such normative pathways, namely that state parties ought to give due consideration to the findings of UN human rights treaty-monitoring bodies. The legal basis of such a duty to consider remains contested. Furthermore, the duty to consider is necessarily precarious, inasmuch as its effectiveness depends on how precisely consideration is given by judges in a particular case. Nevertheless, the duty to consider – and its normative variations, as will be discussed in this chapter – occasionally appears in the reasoning of domestic courts whose narrative is entangled with treaty interpretation by UN human rights-monitoring bodies.

The chapter starts by outlining the different types of the findings of the monitoring bodies (Section 6.2). Domestic courts’ engagement varies depending on states, courts and judges. The limited research I have conducted¹ demonstrates a great deal of variance with regard to domestic courts’ explicit engagement with the monitoring bodies. Domestic judges may not be aware of the relevant documents; and even if they are, they may reject the judicial relevance of such documents (Section 6.3). At the same time, there are a number of domestic court decisions that have explicitly invoked treaty body findings (Section 6.4). What matters for the sake of this chapter is that judicial engagement can be guided by the duty to consider and its variations (Sections 6.4 and 6.5). These pathways serve as ‘interface norms’ that facilitate ties yet preserve discretion on the part of domestic courts.² Under limited circumstances, the duty to consider may even be understood as entailing an obligation to give effect to Views (Section 6.6). The duty to consider may not be a robust normative path. Yet it can still pave the way for a sustainable and forward-looking deliberative space, by creating the opportunities for learning and self-reflection for domestic courts and the international guardians.

6.2 Measuring the Domestic Relevance of the ‘Jurisprudence’ of the Monitoring Bodies

UN human rights treaty-monitoring bodies are part of the institutional arrangements at the international level that assist states’ implementation of nine core human rights treaties. There are ten bodies tasked with monitoring the implementation of the treaties, namely: (1) Human Rights Committee (HRC), (2) Committee on Economic, Social and Cultural Rights (CESCR), (3) Committee on the Elimination of Racial Discrimination (CERD), (4) Committee on the Elimination of Discrimination against Women (CEDAW), (5) Committee Against Torture (CAT), (6) Subcommittee on Prevention of Torture, (7) Committee on the Rights of the Child (CRC), (8) Committee on Migrant Workers (CMW), (9) Committee on the Rights of Persons with Disabilities (CRPD), and (10) Committee on Enforced Disappearances (CED). These committees have been adjusting their working methods towards better harmonization, particularly in response to the UN General Assembly’s resolution 68/268 of 2014.³

The ten bodies issue a wide range of documents (which are generally termed ‘findings’ in this chapter). They can be categorized into three types:⁴ (1) General Comments and Recommendations, which are addressed to all state parties; (2) Concluding Observations and Concluding Comments, which are addressed to a particular state party; and (3) Views (or Decisions) and Suggestions and Recommendations, which pertain to individual communications or petitions.⁵ There are eight treaty bodies that are competent to receive and consider petitions from individuals.⁶ By mobilizing the limited staff resources, the committees adopted 250 decisions on individual communications per year during 2018–19, for instance.⁷ In some of those decisions, the committees found breaches of treaty obligations. Between 1977 and March 2019, the HRC found violations of the International Covenant on Civil and Political Rights (ICCPR) in 1,157 Views.⁸ The adoption of Views is in addition to thirty-six General Comments adopted by the HRC between 1981 and 2018, accompanied by numerous state-specific observations.

The crux is that these different types of findings are cross-referenced with one another, which internally strengthens each body’s treaty interpretation.⁹ Just to provide one specific example, in its Concluding Observations addressed to the Netherlands in 2016, the CEDAW urged the state party to implement its earlier Views, by further indicating that the state’s non-implementation of the Views is inconsistent with the CEDAW’s General Recommendation No. 33 on women’s access to justice.¹⁰ By cross-referencing its own documents, each treaty body creates what the International Court of Justice (ICJ) termed ‘jurisprudence’ in para. 66 of the Diallo case (2010)¹¹ – although, I must add, the use of such a juridical vocabulary depends on how one appreciates the functions of the treaty-monitoring bodies.

Para. 66 of the Diallo case is crucial in that the ICJ commented on the normative relevance of the HRC’s treaty interpretation. The court observed that the HRC has ‘built up a considerable body of interpretive case law’ through Views and General Comments.¹² Having reiterated the formalistic starting point that the court is ‘in no way obliged’ to follow the interpretation of the HRC, the court continued by saying that it ‘should ascribe great weight to the interpretation’ of the HRC.¹³ The Diallo case was not the first occasion on which the ICJ had resorted to the position of the HRC.¹⁴ Yet the remark of the court in Diallo was noteworthy, in that the court elucidated the normative ‘weight’ to be given to the HRC’s interpretation. This does not mean that the ICJ is consistent in terms of its willingness to substantively engage with UN human rights treaty-monitoring bodies. In the Obligation to Prosecute or Extradite (Belgium v. Senegal) case (2012), the ICJ took a rather dismissive attitude towards the CAT’s treaty interpretation.¹⁵

Methodologically, it is hard to assess the extent to which treaty body findings alter domestic legal practices. The international bodies’ interpretation can influence legal discourse indirectly and over a long period of time. That said, one form of assessment is to measure the level of compliance. Some treaty-monitoring bodies indicate the level of satisfactory follow-up by states parties to the outcomes of individual communications. For example, the CAT’s report of May 2017 shows that 42 per cent of its communications (55 out of 131), in which the CAT found violations, resulted in satisfactory or partially satisfactory outcomes.¹⁶

Yet this chapter’s focus is not on assessing general rates of compliance. Instead, the chapter analyses the explicit reference to treaty body findings in judicial reasoning. The cases I examine are therefore inclusive of, but not limited to, the case-specific responses to Views. This wider coverage is appropriate and necessary, precisely because the chapter’s focus is on the judiciary, as opposed to other branches of the government. As I further explain in Section 6.3, domestic courts play a relatively limited role in providing case-specific responses to Views. The principle of res judicata often prevents judges from reopening cases at the domestic level. National courts may be able to give effect to Views if there are any relevant pieces of domestic law that allow judges to reopen a case.¹⁷ Illustrative in this regard is a Norwegian example. By the Act of 15 June 2001 No. 63 which amended the Criminal Procedure and the Civil Procedure Acts, Norway allowed the reopening of cases following the findings of the monitoring body.¹⁸ While the Norwegian initiatives have been welcomed by the HRC,¹⁹ few countries seem to have followed the same path that systematically allows the reopening of proceedings. This means that the case-specific responses to Views primarily depend on the willingness of the executive and legislative branches of the government.²⁰

6.3 Judicial Non-engagement

6.3.1 Domestic Courts’ Practices

As noted in Section 6.2, while the monitoring bodies adopt a number of general and country-specific findings, their practical relevance ultimately relies upon domestic acceptance. While it is methodologically challenging to have an overview of the practices of national courts’ engagement with the monitoring bodies, the analysis of judicial decisions I have conducted²¹ provides some ideas about the patterns of engagement. To begin with, the pronouncement of the monitoring bodies has not been used as an independent and free-standing basis for the final decisions of domestic courts. Namely, Views, and much less General Comments and Concluding Observations, do not serve as the basis on which domestic courts decide the wrongfulness of acts or the legality of law.

In light of this, attempts to construe Views as an autonomous legal basis for judicial decisions have met with rejection.²² Illustrative in this regard is the Irish Supreme Court’s decision in Kavanagh v. Governor of Mountjoy Prison (2002),²³ forming a part of the case-specific response to the HRC’s Views in which Ireland was found in breach of Article 26 of the ICCPR on equality before the law.²⁴ While the Irish Supreme Court’s rejection was based on the constitutional ground that justice ought to be administered by properly constituted courts,²⁵ the court also commented on the absence of international legal grounds. According to the Irish court, ‘[n]either the Covenant nor the Protocol at any point purports to give any binding effect to the views expressed by the Committee’ which, as the Supreme Court reiterated, ‘does not formulate any form of judgment or declare any entitlement to relief’.²⁶

In a similar vein, another noteworthy case is Wilson v. Ermita (2016) before the Supreme Court of the Philippines.²⁷ In 1998, Wilson, a British national, was convicted of the crime of rape and sentenced to death. Before his conviction was set aside by the Supreme Court in 1999,²⁸ Wilson submitted the communication to the HRC, which eventually rendered its Views in 2003.²⁹ According to the HRC, the conditions under which Wilson was arrested, detained and imprisoned infringed several provisions of the ICCPR, including Article 7 on the prohibition of torture, or other cruel, inhuman or degrading treatment or punishment.³⁰ The HRC observed that the Philippines should provide compensation for Wilson.³¹ He then filed a petition for mandamus before the Supreme Court of the Philippines, arguing that the government is obliged to enforce the Views as part of its duties under international law.³² The Supreme Court dismissed Wilson’s claim. While the court’s rejection was based primarily on the lack of domestic effect of treaties,³³ the Supreme Court made remarks on the characteristics of Views. According to the court, nowhere in the ICCPR does it state that Views formed part of the treaty.³⁴

The court’s conclusion in Wilson v. Ermita is nothing new. Noteworthy still, however, is that the Supreme Court of the Philippines invoked the HRC’s General Comment No. 33 in the course of denying the applicability of Views to case-specific judicial responses. In General Comment No. 33 (advanced unedited version of November 2008), the HRC regarded its Views as exhibiting ‘some important characteristics of a judicial decision’.³⁵ The Supreme Court quoted this phrase, observing that the HRC’s Views ‘only displays “important characteristics of a judicial decision”’.³⁶ According to the court, the Views are thus ‘mere recommendations to guide the State it is issued against’.³⁷ While the Supreme Court of the Philippines at least engaged with the narrative of General Comment No. 33, the court’s use of the finding was rather ironic. Judges used it in order to dismiss, as opposed to augment, the judicial relevance of the Views of the HRC.

These examples again remind us of the structurally limited role of the judiciary in providing case-specific follow-up.³⁸ Yet even outside case-specific circumstances, some domestic courts have much more ‘distanced relations’³⁹ with UN treaty-monitoring bodies and have taken a dismissive attitude towards the relevance of their treaty interpretation.⁴⁰ In some countries, judicial narrative accommodates little or no reference to treaty body findings. While the International Law Association’s (ILA) Committee on International Human Rights Law and Practice (1997–2008) conducted extensive studies on judicial practices, the study could not specifically identify judicial references to the monitoring bodies in, among others, the countries of Francophone Africa or the Arab region. According to the 2004 Berlin report of the ILA Committee, there were no identifiable judicial practices in Bulgaria, Jordan, Egypt, Saudi Arabia, Colombia, Ecuador, Chile, Argentina, Malaysia, Singapore or Brunei.⁴¹ The absence of explicit reference is also evident in French courts. A study of French courts’ practices suggests that not only judges, but also the litigants themselves rarely refer to the monitoring bodies’ findings.⁴²

6.3.2 International Legal Justification for Non-engagement

There are, no doubt, country-specific backgrounds that sustain and justify no or very limited judicial engagement with the findings of the monitoring bodies.⁴³ Judges’ strong loyalty to the separation of powers, for instance, may sustain distanced relations with formally non-binding international documents.⁴⁴ What should be remembered, however, is that non-engagement can be explained and justified, not only by domestic specificities, but also by international law. A regularly invoked ground in this regard is the formalistic narrative that treaty body findings lack legal binding force. As a matter of formal status, it is hard to deny that Views themselves are not binding under international law.⁴⁵ States generally consider that the HRC’s Views, as well as interim measures, are non-binding under international law.⁴⁶ The lack of binding force is even more evident with regard to General Comments and Concluding Observations.

The legal status of the findings themselves does not speak of the status of the content of the committees’ findings. States, and indirectly their courts, are obliged to give effect to the substance of the findings of the treaty-monitoring bodies, if it reflects established treaty obligations. The content of General Comments and Views may reflect ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.⁴⁷ While, in principle, ‘subsequent practice’ is not equated with the institutional practices of the monitoring bodies themselves, the monitoring bodies’ findings can facilitate an interpretation accepted by states parties which may support or acquiesce to the observations of the monitoring bodies,⁴⁸ even though caution should be exercised.

Despite the content-based obligation on the part of states parties, the rule of treaty interpretation is so flexible that domestic courts can readily argue that the monitoring bodies’ interpretation does not reflect ‘subsequent practice’. The flexibility is preserved by the International Law Commission (ILC), which adopted, in 2018, a set of draft conclusions on ‘subsequent agreements and subsequent practice in relation to the interpretation of treaties’.⁴⁹ In the draft conclusions, the ILC reiterated that a pronouncement of ‘expert treaty bodies’, such as UN human rights treaty-monitoring bodies,⁵⁰ ‘may’ give rise to, or refer to, a ‘subsequent agreement or subsequent practice by parties’ under Article 31(3) of the Vienna Convention on the Law of Treaties.⁵¹ The draft conclusions, however, warned that ‘[s]ilence by a party shall not be presumed to constitute subsequent practice’ under Article 31(3)(b) of the Vienna Convention.⁵² As the ILC acknowledges, ‘it cannot usually be expected that States parties take a position with respect to every pronouncement by an expert treaty body, be it addressed to another State or to all States generally’.⁵³ While this caution against the misinterpretation of silence by states parties makes pragmatic sense, the ILC’s work did not elaborate upon possible indicators with which to assess whether the pronouncement of UN human rights treaty-monitoring bodies reflects established treaty interpretation. Overall, the ILC’s work preserved the flexibility – and associated uncertainty – inherent in Article 31(3)(b) of the Vienna Convention on the Law of Treaties, which, in the context of the theme of this chapter, effectively leaves ample space for domestic courts to reject the obligatory nature of the specific content of the findings.

6.4 Judicial Engagement

6.4.1 Domestic Courts’ Practices

While the lack of legally binding force may serve as a justification for non-engagement, some other domestic courts have shown greater willingness to refer explicitly to treaty body findings. General Comments, Concluding Observations and Views can be invoked to interpret the terms of relevant human rights treaties, which may ultimately be used to inform the construction of domestic (constitutional) provisions regarding fundamental rights. Admittedly, judges tend to be less hesitant in referring to treaty body findings in such countries as Canada, the UK, New Zealand and possibly some other common law countries.⁵⁴ Yet judicial proximity to treaty body findings is by no means limited to jurisdictions with common law traditions.

There are abundant examples of judicial interpretive engagement.⁵⁵ Among many others, for instance, the Israeli Supreme Court in Kav Laoved v. Interior Ministry (2011), in denying the constitutionality of the country’s work permit procedure designed for female migrant workers, consulted the CEDAW’s General Recommendations 21 (on equality in marriage and family relations) and 26 (on women migrant workers), as well as the CERD’s General Recommendation 30 (on discrimination against non-citizens).⁵⁶ Likewise, the Israeli Supreme Court in Adam v. Knesset (2014) invoked the Views of the HRC in order to interpret the scope of arbitrary arrest and detention under the ICCPR, which served ultimately to decide upon the constitutionality of domestic legislation.⁵⁷

In a similar vein, the Federal Court of Australia in Iliafi v. The Church of Jesus Christ and the Latter-Day Saints Australia (2014) resorted to several findings of the monitoring bodies: General Recommendation No. 20 of the CERD,⁵⁸ the HRC’s General Comments Nos. 22 (on the right to freedom of thought, conscience and religion) and 23 (on the rights of minorities),⁵⁹ and the jurisprudence of the HRC formulated through its Views.⁶⁰ These documents were mentioned by the Australian court in order to interpret the Racial Discrimination Convention and the ICCPR,⁶¹ and, ultimately, to construe the Racial Discrimination Act 1975 of Australia.⁶² Interestingly, the Federal Court of Australia cited para. 66 of the ICJ’s decision in Diallo, as well as Article 38(1)(d) of the ICJ Statute, in consulting the CERD’s General Recommendation No. 20.⁶³ Yet the court did not specify whether it intended to ascribe, as the ICJ did in paragraph 66 of Diallo, ‘great weight’ to the interpretation of the monitoring bodies.⁶⁴

While there are abundant examples of judicial reference, the extent of substantive engagement varies depending on courts and judges. Illustrative in this regard is the comparison between UK and Canadian courts in a series of decisions concerning the interpretation of Article 14(1) of the Torture Convention.⁶⁵ Both UK and Canadian courts disagreed with the CAT’s interpretation of the provision that a civil remedy ought to be made available for all acts of torture, including those committed outside the forum state,⁶⁶ by limiting the scope of state immunity.⁶⁷

While both UK and Canadian courts disagreed with the CAT’s treaty interpretation, there were differences in terms of the extent to which courts substantively engaged with the CAT’s position. In the House of Lords, judges rather summarily dismissed the relevance the CAT in Jones v. Saudi Arabia (2006).⁶⁸ Lord Bingham noted that ‘[w]hatever its value in influencing the trend of international thinking, the legal authority of the Committee’s recommendation is slight’.⁶⁹ In a similar vein, Lord Hoffmann found ‘no value’ in the Committee’s position.⁷⁰ The disagreement of UK judges in Jones was referred to by the Canadian Supreme Court in Kazemi (Estate) v. Iran (2014).⁷¹ The Canadian court, however, while disagreeing with the CAT’s interpretation, took a few more steps to provide substantive explanations as to why judges did not agree with the CAT’s interpretation.

In Kazemi, the Canadian Supreme Court admitted that ‘the Committee’s comments may be helpful for purposes of interpretation’,⁷² by referring to its earlier decision in Suresh (2002) where the Supreme Court had consulted the CAT’s position.⁷³ Yet the majority of the Canadian Supreme Court noted that the Committee’s comments, ‘despite their importance’, ‘should not be given greater weight than the pronouncements of states parties and judicial authorities’.⁷⁴ The court observed that the CAT’s comments ‘do not override adjudicative interpretations’, such as those seen in Jones.⁷⁵ ‘At best’, according to the highest court of Canada, the CAT’s comments ‘form part of a dialogue within the international community where no consensus has yet developed’ on treaty interpretation.⁷⁶ The majority’s treatment of the CAT’s remarks is contrasted with the narrative of Justice Abella in dissent. She observed that the CAT’s ‘expertise lends support to the weight of its interpretation’,⁷⁷ referring to the fact that the Committee had made critical remarks on Canadian legal practices.⁷⁸ The narrative of the Canadian court was noteworthy in that the court explained how much weight it should give to the CAT’s treaty interpretation. While judges in the majority substantively engaged with the CAT’s position, the Supreme Court, at least in this specific case, regarded it as merely one of the opinions that the court may take into account.

6.4.2 Normative Pathway: Authorization to Consider

Domestic courts’ discretionary reference to treaty body findings is no doubt conditioned by domestic sociological and legal contexts. At the same time, it must be once again noted that international law also explains and justifies domestic courts’ discretionary engagement. Namely, states, and indirectly their courts, may consider the findings of UN human rights treaty-monitoring bodies as part of ‘supplementary means of interpretation’ under Article 32 of the Vienna Convention on the Law of Treaties.⁷⁹

In fact, Article 32 of the Vienna Convention on the Law of Treaties has been mentioned by domestic courts in consulting treaty body findings. For example, in Minister for Immigration and Citizenship v. Anochie (2012)⁸⁰ before the Federal Court of Australia, the judge consulted the HRC’s Views and General Comments Nos. 15 (on the position of aliens) and 31 (on the nature of the general obligation)⁸¹ in the process of interpreting Australia’s non-refoulement obligations. The Federal Court explicitly elaborated upon the question of what materials the court may consult in interpreting the ICCPR.⁸² The judge accepted, ‘upon reflection’, that ‘the Committee’s interpretation of the ICCPR is admissible’ in court for the interpretation of the treaty.⁸³ The Federal Court suggested that its recourse to the HRC’s interpretation was justified by Article 40(4) of the ICCPR and Article 1 of the Optional Protocol.⁸⁴ Article 40(4) serves as a legal basis for the HRC to issue General Comments,⁸⁵ while Article 1 of the Optional Protocol empowers the Committee to receive and consider individual communications.⁸⁶ On this basis, according to the Federal Court, the Committee’s Views and General Comments form part of ‘supplementary means of interpretation’ (under Article 32 of the Vienna Convention on the Law of Treaties).⁸⁷ Equally, the Views and General Comments serve as ‘subsidiary means for the determination of rules of law’ (under Article 38(1)(d) of the Statute of the International Court of Justice).⁸⁸

The characterization of treaty body findings as part of supplementary means leaves states (and their courts) to decide whether to consider a particular finding of the committees and how much weight states give to the committees’ interpretation. In the aforementioned Anochie, the Australian court noted that, given that the members of the HRC were supposed to be ‘persons of high moral character and recognized competence in the field of human rights’,⁸⁹ the HRC’s output may form part of the ‘teachings of the most highly qualified publicists’ under Article 38(1)(d) of the ICJ Statute.⁹⁰ On this basis, the Federal Court quoted para. 66 of the ICJ’s judgement in Diallo, in which the ICJ found that it ‘should ascribe great weight’ to the interpretation of the Committee.⁹¹

6.5 Beyond Discretionary Judicial Engagement

6.5.1 Domestic Courts’ Practices

As noted in Section 6.4, states, and indirectly their courts, are authorized under international law to consider the findings of UN human rights treaty-monitoring bodies. At the same time, the survey of domestic court decisions⁹² indicates the existence of normative expectations beyond mere discretionary consideration. Some courts referred to a normative expectation to consider, both in and outside the context of case-specific responses to Views on individual communications.

For instance, in the Jamaican case of Lewis (2000),⁹³ the Judicial Committee of the Privy Council observed that the HRC’s Views should be considered in case-specific contexts. The Lewis case involved appellants who had been sentenced to death by the Jamaican courts and had petitioned the HRC. According to the Privy Council, ‘[w]hen the report of the international human rights bodies is available that should be considered and if the Jamaican Privy Council do [sic] not accept it [then] they should explain why’.⁹⁴ This observation is significant, in that the Privy Council found it necessary, not merely to consider Views, but also to provide explanation in case of disagreement. The Dutch Administrative High Court in its decision of July 2006 seems to have given an even stronger assertion in favour of Views. The Court regarded the Views of the HRC as non-binding, yet still ‘authoritative’, and noted that national courts could only deviate from the Views if justified by ‘compelling reasons’.⁹⁵

These instances of judicial respect for Views do not alter the fact that domestic courts have a limited role in taking case-specific follow-up measures.⁹⁶ In this sense, it is much more relevant to see how domestic courts navigate their pathways to the monitoring bodies outside case-specific contexts. Some judges were willing to indicate the existence of normative expectations – if not a strict obligation – for domestic courts to engage with the monitoring bodies’ interpretation when the courts interpret relevant treaty provisions. For instance, the Colombian Constitutional Court in 2004 characterized the CESCR as an ‘authorized interpreter’ of the Covenant.⁹⁷ In the Test Trial Fund Clara Wichmann case of 2005, the Dutch court noted that the CEDAW is empowered to issue General Recommendations and that such Recommendations should be taken into account in the context of interpreting the Convention.⁹⁸ In 2007, the Belize Supreme Court in the case of Cal noted that, given Belize’s commitments under the Racial Discrimination Convention, the government ‘should take this communication [country-specific Correspondence] seriously and respond accordingly’.⁹⁹

Another noteworthy example is the German Federal Constitutional Court’s engagement with the CRPD’s Concluding Observations and General Comments in the Order of 26 July 2016.¹⁰⁰ The case involved the provision of medical treatment to a woman against her natural will in circumstances where she suffered from mental and physical illnesses and was deemed unable to provide consent. The Federal Constitutional Court obliged the legislature to enact laws to allow coercive medical treatment in such cases. In holding that coercive treatment was compatible with the Convention on the Rights of Persons with Disabilities, the German court effectively disagreed with the CRPD’s General Comment No. 1, Concluding Observations on Germany, and Guidelines on Article 14, in which the CRPD had criticized the practices of custodianship and forced treatment for failing to respect disabled persons’ autonomy and will.¹⁰¹ According to the Constitutional Court, these CRPD documents do not address the critical scenario involving persons who cannot form a free will.¹⁰² While the German Federal Constitutional Court took a critical look at the CRPD’s observations, the court substantively engaged with the Committee’s position. Furthermore, the court notably observed that a national court, although it is not obliged to follow the CRPD,¹⁰³ should deal with the CRPD’s opinions ‘in an argumentative way and in good faith’¹⁰⁴ – as the German court seems to have done in this specific instance.

6.5.2 Normative Pathway: An Obligation to Consider and Its Variations

The aforementioned judicial narratives – such as those in Test Trial Fund Clara Wichmann in the Netherlands, Cal in Belize and the Order of 26 July 2016 in Germany – are nuanced. By no means do they elucidate an obligation to consider or give due consideration to certain types of findings. Yet the courts’ nuanced position ought to be understood in light of some of the limitations extant at the national level for domestic courts vis-à-vis legislative and executive bodies.¹⁰⁵ Normative expectations expressed by judges cannot be separate from a contested obligation to consider, incumbent on states parties themselves. In discussing such an obligation, it is necessary to distinguish different types of treaty body findings.

6.5.2.1 Case-Specific Responses to Views

With regard to the case-specific responses to Views, it is hard to deny the existence, under international law, of such an obligation to consider. In fact, some treaties explicitly provide such an obligation. With regard to the CEDAW, Article 7(4) of the Optional Protocol obliges a state party to ‘give due consideration to the views of the Committee’ and to submit within six months the state’s follow-up action.¹⁰⁶ These dual obligations (to give due consideration and to provide information on follow-up action) are also explicitly laid down in regard to the Views of the CESCR¹⁰⁷ and the CRC.¹⁰⁸

The language is less explicit when it comes to the HRC. Yet the ICCPR’s Optional Protocol, adopted in 1966, at least obliges a state party to submit information in response to the Views.¹⁰⁹ On top of the explicit requirement, there is an obligation to cooperate with a committee, which is applicable to all the monitoring bodies, including the HRC. Such an obligation is based on the general obligation to perform a treaty in good faith, under Article 26 of the Vienna Convention on the Law of Treaties,¹¹⁰ accompanied by states parties’ recognition of the competence of the committees under relevant human rights treaties. While the meaning of ‘good faith’ is no doubt contextual,¹¹¹ the good faith obligation has been understood as an obligation to cooperate with the committees, as the HRC remarked in General Comment No. 33.¹¹² Cooperation does not amount to require compliance; yet a state party may be acting in bad faith towards its treaty commitment if frequent non-compliance is combined with the failure to attempt to seriously engage with Views.¹¹³

It is readily possible to find statements by states parties that they owe an obligation to take into account the Views addressed to them.¹¹⁴ Iceland, for instance, expressed its position in a series of actions following the HRC’s Views in Haraldsson et al. v. Iceland in October 2007 regarding the fisheries management system.¹¹⁵ According to the Icelandic government, Iceland ‘elected to become a party’ to the Optional Protocol to the ICCPR, ‘thereby recognising the competence of the Human Rights Committee to decide whether there has been a violation of the provisions of the Covenant or not’.¹¹⁶ On this basis, Iceland noted that it is ‘therefore required by international law to address the conclusions of the Committee’.¹¹⁷ Not surprisingly, the government still preserved the space for discretion, adding that the Views in question were not detailed enough. According to Iceland, the Views ‘do not include a summarized conclusion in the form of an adjudication, but a general discussion’ without ‘detailed guidance as to the precise measures required’.¹¹⁸ In short, Iceland is acknowledging an obligation to consider and respond to Views, while, at the same time, characterizing them as ‘a general discussion’.¹¹⁹

There are also some influential academic writings that support the existence of the obligation to consider with regard to states parties’ case-specific responses to Views. Tomuschat articulated that ‘States Parties cannot simply ignore’ the Views of the HRC, despite the fact that they lack legally binding force.¹²⁰ States parties ‘have to consider’ the Views ‘in good faith (bona fide)’.¹²¹ Tomuschat observes that states’ lack of reaction ‘would appear to amount to a violation of the obligations under the ICCPR’.¹²² By quoting Tomuschat’s remarks, the Venice Commission reiterated that ‘member states are under the obligation to take the HRC’s final views into consideration in good faith’.¹²³

A main point of contestation remains the extent to which the obligation to consider in good faith requires states parties, and indirectly their courts, to favour the monitoring bodies’ treaty interpretation. According to Tomuschat, states parties have to ‘carefully examine’ the Views addressed to them, and that ‘there exists a presumption in favour of substantive correctness of such views’.¹²⁴ In case of disagreement, a state party ‘must present detailed observations specifying its counter-arguments’.¹²⁵ An observation of a similar nature to the one by Tomuschat was relied upon by the Privy Council, in the New Zealand case of Tangiora in 1999, which found the HRC’s Views hard to dismiss despite the lack of binding force.¹²⁶ According to the Privy Council, the Views of the HRC acquire ‘authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint’.¹²⁷ Moreover, the Privy Council suggested that the functions of the Committee are ‘adjudicative’, as it makes a definitive and final ruling which is determinative of an issue that has been referred to it.¹²⁸ Despite these statements, however, the basis of the presumption of substantive correctness remains unclear.

6.5.2.2 Outside Case-Specific Responses

It has been further argued that the obligation to consider is not limited to states’ case-specific follow-up to the Views addressed to them. In the commentary to its draft conclusions adopted in 2018, the ILC acknowledge that ‘State parties may have an obligation, under a duty to cooperate under certain treaties, to take into account and to react to a pronouncement of an expert treaty body’¹²⁹ where the pronouncement is ‘specifically addressed to them or to individual communications regarding their own conduct’.¹³⁰ The ILC’s commentary signals that the dual obligations to consider and react may be applicable, not only to Views, but also to Concluding Observations addressed to a specific state party. The 2016 Final Report of the ILA International Human Rights Law Committee may have even gone beyond the ILC’s suggestion. According to the Final Report, the ‘jurisprudence’ developed by human rights bodies ‘constitutes res interpretata within the treaty system accepted by the state’.¹³¹ On this basis, the ILA’s Final Report observed that domestic courts implement the good faith obligation by ‘giving serious consideration’ to the decisions of human rights bodies.¹³² The ILA’s Final Report indicated that the treaty bodies’ ‘jurisprudence’ – and not necessarily limited to Views in case-specific follow-up – ought to be considered seriously.

It seems plausible to argue that states parties’ obligation to cooperate with the committees, based on the obligation to perform a treaty in good faith,¹³³ is applicable to Concluding Observations as they are addressed to specific states. One cannot be certain, however, whether this obligation is applicable to General Comments. Further contested is whether the presumption of substantive correctness applies to findings outside case-specific follow-up to Views. In para. 66 of Diallo, the ICJ was prepared to accord ‘great weight’ to the HRC’s ‘interpretation’ or ‘jurisprudence’ in general.¹³⁴ Interestingly, the ICJ’s justification for doing so was not only because the Committee is the ‘independent body that was established specifically to supervise the application of that treaty [i.e. the ICCPR]’.¹³⁵ The ICJ ascribed great weight to the HRC’s interpretation, also because of the wider interests at stake in achieving ‘the necessary clarity and the essential consistency of international law, as well as legal security’ necessary for the rights holders and duty bearers.¹³⁶ The reasoning of the ICJ shows that the degree of normative weight to be given to treaty body findings relies not only on one’s understanding of the characteristics of the monitoring bodies, but also the wider role that one wishes to ascribe to the bodies within the international legal order.

6.6 Engagement and Acceptance

6.6.1 Domestic Courts’ Practices

In contrast with the nuanced engagement of domestic courts with UN human rights treaty-monitoring bodies, the Spanish Supreme Court in its judgement of July 2018 (Judgment No. 1263/2018) has taken a different and dichotomous path.¹³⁷ In this exceptional yet significant case, the Spanish highest court established the binding character of the Views of the CEDAW at the domestic level. The Supreme Court’s decision came after many years of legal battles by the appellant, González Carreño.¹³⁸ Having been subject to physical and psychological violence by her partner, González Carreño filed a number of complaints in order to bring the abuses to the attention of the Spanish authorities.¹³⁹ While local courts took some measures to protect the appellant, they did not fully take into account the risks that her partner could pose, not only to the appellant, but also to her daughter, Andrea.¹⁴⁰ In May 2002, a Spanish local court allowed the partner, with respect to whom the appellant had obtained an order of marital separation, to visit their daughter Andrea without supervision.¹⁴¹ In April 2003, during the scheduled visit, the daughter was shot by her father who eventually killed himself.

After the tragic incident, González Carreño went through a series of domestic court proceedings, trying to prove the pecuniary liability of the state which failed to protect her and her late daughter. From April 2004 to October 2010, her liability claims met rejection four times before Spanish courts.¹⁴² Her constitutional claim was likewise rejected by the Constitutional Court in April 2011.¹⁴³ Having exhausted domestic remedies, on 19 September 2012, González Carreño brought her petition to the CEDAW. The Committee rendered its Views on 16 July 2014, finding the Spanish government in violation of her Conventional rights.¹⁴⁴ Having found a violation of the state’s obligations under the Convention,¹⁴⁵ the Committee recommended Spain to provide compensation and conduct an exhaustive and impartial investigation.¹⁴⁶ At the domestic level, however, the CEDAW’s recommendations in July 2014 did not result in any changes to the situation of the appellant. A year later, in July 2015, the CEDAW still expressed its concern about the ‘lack of follow-up to the Committee’s views’ on the part of the state party regarding González Carreño.¹⁴⁷ Meanwhile, she launched a series of new administrative and judicial proceedings, ultimately before the Supreme Court, requesting the government to give effect to the CEDAW’s Views.¹⁴⁸

In its judgement of 17 July 2018, the Spanish Supreme Court regarded the Views of the CEDAW as binding at the domestic level, ordering the government to pay €600,000 for moral damages suffered by the appellant.¹⁴⁹ The Supreme Court reached such a conclusion on the basis of both international and domestic laws. With regard to the international legal basis, the Spanish court held that the Views of the CEDAW have a ‘binding/obligatory’ character.¹⁵⁰ The court ascribed such a character to Views, despite its acknowledgement that the CEDAW Convention does not oblige states parties to adopt any specific procedures in order to give effect to Views.¹⁵¹ The court derived the ‘binding/obligatory’ character on the basis of Article 24 of the CEDAW Convention and Articles 7(4) and 1 of the Optional Protocol.¹⁵²

The Supreme Court’s reasoning was further supported by domestic law. The court reiterated that the CEDAW Convention, on which the Committee and its Views are based, forms part of the domestic legal order under Article 96 of the Spanish Constitution.¹⁵³ Pursuant to Article 10(2) of the Constitution, fundamental rights shall be interpreted in accordance with human rights treaties ratified by Spain.¹⁵⁴ An important aspect of the court’s reasoning was the manner in which the court invoked Article 9(3) of the Spanish Constitution. The provision guarantees ‘the principle of legality and the normative hierarchy’, according to which international obligations relating to the execution of the decisions of the CEDAW form part of the Spanish internal order and enjoy a hierarchical position above ordinary domestic law.¹⁵⁵ On this basis, the Supreme Court observed that the Convention and the Views ‘can and should be a decisive element’ in proving the possible infringement of the fundamental rights of the appellant.¹⁵⁶ While the Supreme Court emphasized the particularities of the appellant’s case, the court took the position that the CEDAW’s Views must be considered as a ‘valid basis’ for bringing a claim concerning the pecuniary liability of the state.¹⁵⁷ Otherwise, as articulated by the Supreme Court, the ‘absence of a specific procedure for executing’ the Views of the Committee constitutes ‘in itself a breach of a legal and constitutional mandate by Spain’.¹⁵⁸

The Spanish Supreme Court’s reasoning pertains only to the CEDAW’s Views on individual communications, and not to other types of findings. Yet it would be good to reiterate once again that each monitoring body engages with its own previous findings. In the CEDAW’s Views in Angela González Carreño v. Spain, the Committee’s reasoning built on its General Recommendation No. 19 (1992),¹⁵⁹ in which the CEDAW had made it clear that states ought to act with due diligence to prevent violations involving the acts of private persons.¹⁶⁰ In Angela González Carreño v. Spain, the Committee found the violations of the Convention, ‘read jointly with … general recommendation No. 19 of the Committee’.¹⁶¹ In other words, by according legal binding effect to Views, the Spanish Supreme Court in the judgement of July 2018 augmented the normative relevance of other CEDAW findings at the domestic level.

6.6.2 Normative Pathway: An Obligation to Comply

The Spanish Supreme Court’s identification of the binding character of the Views of the CEDAW resembles the draft version of the HRC’s General Comment No. 33 concerning the general obligations of states parties. In an early draft of what became the HRC’s General Comment No. 33, the HRC characterized its role as an ‘authentic interpreter’ of the Covenant¹⁶² and regarded its Views as exhibiting ‘most of the characteristics of a judicial decision’.¹⁶³ Also, in the draft version, the HRC translated the obligation to cooperate with the Committee as entailing ‘an obligation to respect the views of the Committee in the given case’.¹⁶⁴ The HRC is not the only body that attempted to put forward an imperative tone. Within the CAT, one of its members observed that, ‘[w]hile the Committee’s decisions were not strictly mandatory, States parties had an obligation to comply with them in good faith’, which also justifies the CAT’s follow-up mechanism.¹⁶⁵

The imperative vocabularies used in the draft version of General Comment No. 33 met with criticisms from several states parties.¹⁶⁶ In the end, the wording of the final version of General Comment No. 33 was revised, including the critical phrase ‘authentic interpreter’.¹⁶⁷ The draft version of General Comment No. 33 was an attempt to creatively translate a procedural duty to cooperate with the Committee, based on the good faith obligation, into the substantive obligation to respect the Views of the HRC.¹⁶⁸ Such an attempt was not successful in 2008, at least in the context of the HRC.

In the judgement of July 2018, the Spanish Supreme Court by no means characterized the CEDAW as an authentic interpreter. In fact, the Spanish Constitutional Court reiterated in 2002 that the HRC was not a judicial organ and that the Views of the HRC could not represent the ‘authentic interpretation’ of the ICCPR.¹⁶⁹ The crux, however, is that the Spanish Supreme Court’s reasoning in 2018 was in part based on the state party’s obligation to take Views seriously. The Spanish court referred to not only Article 24 of the Convention, according to which states parties ‘undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention’.¹⁷⁰ The Court also relied on Article 7(4) of the Optional Protocol, according to which the state party has dual obligations. Namely, the party ‘shall give due consideration to the views of the Committee, together with its recommendations’ and ‘shall submit to the Committee, within six months, a written response’.¹⁷¹ As noted in Section 6.5.2.1, these dual obligations are enunciated for the CESCR and the CRC as well.¹⁷² Overall, the reasoning of the Spanish highest court demonstrates the breadth of what can be offered through the obligation to consider. After the lengthy administrative and judicial proceedings involving the victim of the state’s neglect, the obligation to consider has reached the point where no further deliberation may be welcome.

6.7 Conclusion

The shortcomings of human rights protection at the domestic level have sustained the need for institutional mechanisms at the international level that monitor and assist states’ implementation of human rights treaties. The ten human rights treaty-monitoring bodies, within their significantly limited resources, actively adopt general and specific findings. Each treaty-monitoring body generates and reiterates its own interpretation of relevant treaty obligations by cross-referencing previous findings. Despite the accumulation of instruments adopted, the effectiveness of treaty body findings ultimately relies on the degree to which their treaty interpretation becomes entangled with the practice of states parties, including their judiciary.

As illustrated by some examples discussed in this chapter, the treaty interpretation built by UN human rights treaty-monitoring bodies has been intertwined with the discourse of domestic court decisions. Various courts have shown their willingness to take into account General Comments, Concluding Observations and Views in the course of interpreting applicable human rights treaties and relevant domestic legal provisions. Judges’ proximity to the international monitoring bodies varies, depending on sociological contexts in which judges have been situated. If UN treaty-monitoring bodies are not integrated in judges’ legal training, it may be unrealistic to expect them to see the relevance of treaty body findings.

At the same time, a connecting point between UN treaty-monitoring bodies and domestic courts can also be normative, at least in part. One such normative pathway which generates ‘discursive entanglement’¹⁷³ is the obligation to consider. As illustrated in the present chapter, there are a number of variations surrounding such an obligation, from mere encouragement to take into account to an obligation to implement. While normative expectations may be limited to certain types of treaty body findings, the monitoring bodies regularly refer back to General Comments in drafting Concluding Observations or Views, reminding a state party of the monitoring bodies’ earlier remarks on which specific observations are built. In other words, the consideration of Views would substantively involve a state party’s reflection of General Comments or Concluding Observations.

Pathways built around the obligation to consider are not single routes. There are multiple normative variations: ranging from a cursory look, to substantive and reasoned engagement, to legally obliged acceptance. Due to the fact that there are multiple possibilities, judges’ willingness to substantively engage with the treaty body’s interpretation can be altered, for instance, by the initiatives to better ensure independence and impartiality of UN treaty-monitoring bodies.¹⁷⁴ Substantive engagement on the part of domestic courts creates further opportunities for the treaty bodies to tailor their approaches to states parties. Deliberative space involving domestic courts and the monitoring bodies may be multifaceted and changeable, in that it allows various degrees of entanglement on the part of domestic courts. Yet it is precisely because of its precariousness that there arises the need for constant attempts to augment the quality of engagement, both on the part of domestic courts and UN treaty-monitoring bodies.

7 The Social Life of Entanglements International Investment and Human Rights Norms in and beyond ISDS

Francesco Corradini

7.1 Introduction

Metaphors may be helpful tools to think about law. They may also help us to imagine what happens when law makes its actual appearance in the plural rather than in the singular. Consider the following statement:

[W]estbrook’s intriguing metaphor of cream poured into coffee, swirling and billowing before blending into a homogenized liquid, is suggestive. But this only captures part of what we should be concerned with. The cream comes from a single outside source, it is poured from above, the flow is in one direction, and the blending is relatively harmonious; but many of our stories of diffusion of law are more complex often involving two or more reciprocally interacting change agents, crossing of levels, and repression, resistance, or avoidance.¹

A former judge of the International Court of Justice (ICJ) employed a similar rhetorical device as he imagined how investment protection and human rights norms could be brought in relation. He observed:

[O]il and water do not mix, at least not readily. Is this also true of human rights and the protection of foreign investment-here also in the sense that they ought to be kept apart? Some observers, or rather stakeholders, might think so. There is, of course a way to overcome this separation: science and industry employ some sort of mediators between the water and the oil (so-called ‘emulgators’) to achieve this.²

From a legal theory perspective, the observation of contemporary phenomena akin to the interactions captured by these metaphors has led to the hypothesis that, particularly in contexts of societal disagreement and institutional pluralization, law has become ‘entangled’.³ International legal scholarship has diagnosed similar dynamics in disputes over the relationship between global economic governance and human rights.⁴ From this perspective, efforts to establish human rights obligations for multinational corporations in 2003, followed by the UN Guiding Principles in 2011 and leading to current discussions at the UN about a new international instrument on transnational corporations,⁵ may be seen as fragments belonging to a common dynamic process of defining relations between business and human rights norms.⁶

To illustrate this process, this chapter investigates forms of interaction between international investment and human rights law. As these forms depend on the contexts in which they are construed, I focus on governance sites where actors have disagreed about the best way to order the encounter of multiple legalities. Examining the ‘social life’ of this encounter, I seek to understand when and how ‘entangled legalities’⁷ emerge – where, how and by whom have they been produced? Drawing upon the conceptual framework of the volume, I analyse competing claims of actors and institutions through which investment protection and human rights norms have been brought in relation over time.

The chapter has three sections, in addition to an introduction and a conclusion. Section 7.2 identifies the rational and ideational parameters that are likely to affect whether and how ‘forms of entanglement’⁸ in international investment law have come about and developed. On the one hand, these forms may be an effect of competing interests of actors with unequal access to resources and knowledge to shape and organize them. Rational actors’ attitudes towards what they represent as ‘other’ legalities may depend upon the potential gains involved in that determination. On the other hand, actors’ mindsets and the cultural setting of investment arbitration are bound to have repercussions on how the boundaries of international investment law and its relations with competing legalities are shaped. Against this background, Section 7.3 examines how actors have actually dealt with multiple legalities, in particular with human rights norms, in the context of investor–state dispute settlement (ISDS) and analyses the various forms that they have generated there. As actors’ responses to multiplicity have varied considerably in practice, the emerging picture is not coherent. When interpreting investment treaty standards, investment adjudicators have disregarded human rights norms in some cases, while in other cases they accorded them some weight, but always doing so from the perspective of their own legality. Actors’ strategic interests and ideational context may partly account for the diversity of interpretive practices observed. As the institutions of international investment protection face growing challenges from national governments, academics and non-governmental actors, linkages with human rights may be beneficial to their cause.

Section 7.4 examines similar dynamics of convergence and divergence between legalities in contexts of international investment law reform, where the norm of ISDS itself has become the object of acute contestation. Human rights experts have articulated a mode of ordering multiplicity that is similar to the dominant forms of relationing observed in foreign investment litigation. Associated as they are to a systemic vision of order, human rights lawyers have also relied on norms of internal hierarchy according to which different legalities have to be ‘consistent’ with human rights and the rule of law. Some of these experts went so far as to claim that human rights norms have priority over conflicting legalities.

7.2 Pathways to Entanglement in International Investment Governance Sites

Legal scholars have emphasized the pluralist, decentralized and incrementally evolving character of international investment law.⁹ Indeed, in contexts of investment treaty disputes, often this law makes its appearance more in the plural than in the singular.¹⁰ For example, bilateral investment treaties (BITs), multilateral or regional trade and investment agreements often interplay with domestic laws, contractual frameworks and other rules of international law and therefore it becomes crucial to define their relations.¹¹ At sites of foreign investment governance, entanglements do not build themselves but are defined by the interplay of situated actors with competing stakes and normative orientations.¹² Such diversity of actors and ‘bodies of norms’¹³ makes this arena of global economic governance, and investment treaty arbitration in particular,¹⁴ an ideal setting to analyse how entangled legalities are formed and operate. The purpose of this chapter is to get closer to the social life of relations built in and around this law. To do so, I consider how actors’ attitudes towards human rights norms in investor–state arbitration may respond to competing interests and the ideational background in which they are formed.

7.2.1 Competing Interests

Societal actors’ interests are a first potential determinant of entangled legalities.¹⁵ From a rational choice perspective, international investment arbitration participants – foreign investors, host governments, investment arbitrators, lawyers and non-governmental organizations (NGOs) – act rationally to maximize their self-interest.¹⁶ Given the competition of interests and concerns involved, conflicting demands and priorities are bound to condition whether and how norms will be brought together or kept apart.¹⁷ This outcome may depend on actors’ ‘prudential reasons-for-action’ – different actors will shape forms of relation depending on their own expected gains.¹⁸

Since ‘states, investors, and NGOs often favour different paradigms in light of their divergent normative interests and agendas’,¹⁹ these interests and agendas will also determine what weight they will give to the legalities at play. I assume that the interest of the two disputing parties – foreign investor and responding state – is to win the dispute. As investors argue ‘for broad investor rights’,²⁰ we can expect them to defend their own interests from the potentially disruptive effects of human rights protecting the interests of other individuals or groups. Empirical findings suggest that foreign investors have benefited from investment litigation. Particularly since the second half of 1990s, they have gained from using investment claims against poor and rich governments.²¹ The stability and predictability of international investment protection – legally sanctioned through international arbitration – has been economically beneficial to international investors. It seems that the status quo has protected foreign investors’ interests against the preferences of other societal actors.²² Given the beneficial environment in which investors bring their claims, couplings with bodies of norms of different origin may open unpredictable scenarios. As rational actors, foreign investors will seek to resist this outcome.²³ However, in cases in which it is convenient to them, they may also entangle their rights with human rights norms, perhaps to enhance the persuasiveness of their claims against the host government.²⁴ States, too, may expect gains from these types of connections. Frequently, and especially in times of economic crises, linkages with human rights might strengthen their defences against investor’s claims. Countries with limited financial resources may use these linkages as a rhetorical strategy to expand their ‘regulatory authority’²⁵ and avoid costly liability or reduce the amount of compensation due to the investor. Finally, NGOs (other than business associations) and human rights experts may entangle international investment and human rights law to advance the interests of affected outsiders like local communities and human rights holders.

Investment arbitration insiders’ decision-making may also respond to constraints and incentives.²⁶ Previous empirical analysis has concluded that arbitrators of the International Centre for Settlement of Investment Disputes (ICSID) form a ‘network’ that ‘reinforces prevailing norms and behaviours and insulates its most important members from outside influence’.²⁷ Beyond international arbitrators, legal counsel, expert witnesses and tribunal secretaries have also become particularly influential actors.²⁸ In conditions of professional competition, the members of the investment arbitration industry may have professional incentives to distance human rights. As co-operators of the system, they will have material incentives to defend their legal specialization and their role as the masters of its law. From their perspective, investment arbitration may be a specialized profession with its own ‘ethos’ and associated relevant frameworks and practices.²⁹ Therefore, distancing human rights may be needed to secure reputation from other members of their community of practice and to continue their practice as usual.³⁰ Yet empirical work has found that over time there have been incentives for these legal experts to be reflexively open to societal demands. As investor–state arbitration faces a legitimacy crisis, some arbitrators may act strategically to ‘manage consciously or unconsciously the legitimacy of arbitration’ by showing ‘greater deference to respondent states’.³¹ To do so, they might seek to adjust their decision-making in response to the claims and interests of dominant states like the European Union, the United States and China, but also to those of some Latin America countries that have been vocal against investment arbitration. In this context, investment arbitration officials might benefit from linkages with norms with strong social backing like human rights law to strengthen their own legitimacy.³²

7.2.2 Ideational Contexts

A second possible cause of entanglements is the ideational context in which they come about. In investment arbitration, this context is shaped by multiple factors, including actors’ ‘shared understandings’ of international investment law and their role in the ‘community of practice’ they form a part of.³³ ‘Epistemic communities – that is, social groups of professionals and academics that shape the discursive policies’³⁴ in investment arbitration have played a role in the formation of those understandings,³⁵ with possible implications for the ‘interface norms’ and practices emerging from the inside of that community of practice and its discourse. From this perspective, situations of enmeshment may be driven by how different actors regard international investment law, for example by adopting primarily an international public law, commercial arbitration or public law approach.³⁶

Investment tribunals will often understand their role as strictly confined to the determination of whether foreign investors’ rights have been violated or not. In that determination, arbitrators will see themselves primarily as interpreters of the legal basis creating those rights (e.g. a treaty), with implications for their room for manoeuvre to create relations with bodies of norms perceived as external. ISDS participants’ choice of ‘conceptual maps’³⁷ is likely to impact whether and how legalities are brought together or kept apart and with which effects. This choice may depend upon actors’ background and projects. For instance, investment arbitrators with knowledge in public international law have drawn on the judgements of the ICJ, while others with experience in trade law have relied on the World Trade Organization (WTO) jurisprudence.³⁸ The same holds true for arbitrators emphasizing a ‘universalistic’ versus ‘particularistic’ perspective of the interaction between ‘general international law’ and other ‘special regimes’. For example, a former ICJ judge has situated ‘international investment law’ within ‘general international law’ in keeping with his vision about the relationship between ‘special regimes’ within the wider ‘universe of international law’.³⁹ Similarly, lawyers believing in a unified ‘international legal system’ as opposed to a ‘fragmented’ one will consider linkages between international investment and human rights law with less hesitancy.⁴⁰

However, previous sociological analysis of the ‘investment arbitration culture’ has concluded that lawyers with a strong background in public international law are the minority in investment arbitration settings while the ‘commercial arbitration paradigm’ appears as the dominant one.⁴¹ Empirical work on the composition of investor–state arbitral tribunals at ICSID has found that these tribunals comprise individuals – mostly men from the USA and Europe – whose conception of law reflects their particular training and professional background.⁴² Here, international ‘business lawyers’ with competence in ‘commerce, industry or finance’ appear as the dominant players.⁴³ The investment arbitration community seems to have little knowledge of human rights law due to the particular ‘sociocultural features’ and processes of socialization of that community.⁴⁴ Indeed, ‘culture influences how people think, communicate, behave’,⁴⁵ including how they situate themselves in relation to different constituencies and their legalities. However, legal culture and socio-psychological influences⁴⁶ are not the only elements of the ideational context in which arbitrators’ decision-making is situated. Empirical work has found that arbitrators’ ‘policy preferences’, including their ideology, also shape their decisions.⁴⁷ As a consequence of the ‘set of values and beliefs’⁴⁸ that seem dominant in investment arbitration we might expect resistance to tight linkages with human rights,⁴⁹ although it is possible that investment arbitrators’ ‘background preferences’⁵⁰ might begin to change.

7.3 Navigating Multiplicity in ISDS Practice

7.3.1 Varying Forms of Relation

As claims about human rights have begun to be heard in investment arbitration, ISDS participants have faced the challenge of ‘navigating’ between multiple bodies of norms.⁵¹ Influenced by the discourse of institutions like the World Bank-based ICSID, the Permanent Court of Arbitration (PCA) or the United Nations Commission on International Trade Law (UNCITRAL), ISDS has become one among many governance sites where ‘horizontal’ and ‘vertical’ interactions between legal orders have been articulated over time. At this site, ad hoc investment arbitrators have become key decision-makers in setting the boundaries of ‘international investment law’.⁵² While scholars have observed an increase in the number of actors’ statements referring to human rights norms in investment litigation,⁵³ we know less about the forms of relation constructed through those claims. In Section 7.3.2, I draw on a selection of statements to analyse the ways in which different actors have brought bodies of norms in relation in ISDS.

7.3.2 Hierarchies and Separation

Foreign investors and states have dealt with multiplicity by relying on hierarchies, as exemplified in the CMS Gas Transmission Company case.⁵⁴ The dispute arose after Argentina adopted measures to protect the welfare of the population, including by guaranteeing access to public services, amid an economic crisis at the end of the 1990s. At the time, CMS, a US corporation with an investment in the gas transportation sector of Argentina, claimed it suffered financial losses as a result of those exceptional measures and invoked its rights under the Argentina–United States BIT to protect its interests through ICSID arbitration. While Argentina and CMS disagreed over the ultimate source of authority to decide their dispute, they both referred to norms about hierarchy to order the relation between bodies of norms. Particularly contentious was the question of the ‘applicable law’.⁵⁵ While the investor regarded the BIT and international law as lex specialis, Argentina not only considered its constitutional order relevant but also superior to the BIT. Drawing on its constitution, public law and international customary rules on state of necessity, Argentina said that obligations to safeguard constitutional rights prevailed over its BIT commitments, including investor’s fair and equitable treatment (FET) claims.⁵⁶ Argentina situated and construed the relation between the legalities at play within an order where constitutional public law and human rights had primacy over investment treaties.

Drawing on a ‘more pragmatic and less doctrinaire’ approach and ‘taking the facts of the case and the arguments of the parties into account’,⁵⁷ the tribunal concurred with Argentina that both the international and the domestic legal orders applied to the dispute. It found ‘a close interaction between the legislation and the regulations governing the gas privatization, the Licence and international law, as embodied both in the Treaty and in customary international law’.⁵⁸ While the tribunal emphasized that the multiple legalities were ‘inseparable’, it also specified that they were to be applied ‘to the extent justified’.⁵⁹ As a consequence, the tribunal decided against Argentina that ‘while treaties in theory could collide with the Constitution, in practice this is not very likely’⁶⁰ and ‘in this case, the tribunal does not find any such collision’ partly because ‘there is no question of affecting fundamental human rights when considering the issues disputed by the parties’.⁶¹ The tribunal highlighted that ‘the specific domestic legislation of Argentina and rules of international law applied by the Tribunal will be discussed in connection with the issues contended’.⁶² By assigning a specific ‘role’ to domestic and international law in relation to the ‘facts’ of the dispute, the tribunal created distance between these legal orders. It insisted on regarding the two laws as separate legal orders that could simultaneously apply in the circumstances of the case, rather than creating a hierarchical relation between them, as if the obligations owed to the investor and to the Argentinian population could run in parallel.

7.3.3 Proximity and Distance

NGOs have played an important role in tying human rights and ISDS. For example, they have highlighted conflicts between human rights and investment protection norms, as reflected in the Glamis dispute.⁶³ The case was initiated by a Canadian mining company, investing in the United States, claiming that the mandatory backfilling requirements adopted by California violated its right of FET and of protection from ‘expropriation without compensation’, under chapter 11 of the North American Free Trade Agreement (NAFTA).⁶⁴ Indigenous communities inhabiting the surrounding areas were affected by the investment project.

Although the United States remained silent on the relation between NAFTA chapter 11 and Indigenous rights, representatives from the Quechan Indian Nation situated the dispute within a wider juridical context including the international legal framework for the protection of Indigenous cultural heritage rights.⁶⁵ They argued that the tribunal ought to ‘be guided by’ Indigenous people’s norms when interpreting investors’ rights to avoid an ‘arbitrary and discriminatory decision’ that would violate ‘international law’.⁶⁶ They employed the flexible interface norm of ‘taking into account’, expressed in article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), through which they weaved together article 1105 (minimum standard of treatment), article 1110 (compensation for expropriation) of NAFTA and the rights of Indigenous people. They also referred to the need of ensuring consistency with ‘public international law’ within which they situated the multiple legalities. Yet the tribunal’s interpretation of its mandate had the effect of narrowing down the relevant laws at play, thereby creating distance from other bodies of norms.⁶⁷ Based on the understanding that its task was to undertake a ‘case-specific arbitration with awareness of the NAFTA Chapter 11 system’,⁶⁸ the tribunal refused to ‘decide many of the most controversial issues raised in this proceeding’⁶⁹ and therefore did not consider the multiplicity of laws that the Quechan people invoked. Eventually, the tribunal dismissed the claims of the investor but also disregarded the claims by the Quechan people by placing emphasis on its ‘case-specific mandate’ and on the ‘issues presented’ by the parties to the dispute.⁷⁰ The interpretation of investment treaty standards in the ‘context’ of human rights norms was on display in the Suez case,⁷¹ in which foreign investors brought claims against Argentina under three BITs.⁷² In this case, investors’ rights to ‘full protection and security’ and ‘fair and equitable treatment’ were pitched against Argentina’s human rights obligations. While the investors deemed human rights ‘irrelevant’ to the determination of whether the obligations under the BITs had been breached,⁷³ five NGOs brought the right to water and to life to bear in the definition of the ‘applicable law’ for the ‘proper adjudication of the dispute’ and for the ‘proper application’ of fair and equitable treatment and indirect expropriation.⁷⁴ They maintained that the case involved a conflict between the state’s duty to protect the right to water and its obligations to the investor⁷⁵ and that the former norm prevailed over the latter.⁷⁶ They ordered the conflicting norms by invoking the requirement ‘not to interpret certain rules in isolation from other parts of the legal order’.⁷⁷ According to the NGOs, the interpretation of the BIT had to take human rights law ‘into account’. Similarly, Argentina framed human rights law as the ‘context’ in which the BIT standards had to be interpreted.⁷⁸ The tribunal’s determination of the relative weight of the bodies of norms at play was different from that of Argentina and the NGO. In contrast to the Glamis tribunal, which had chosen to ignore the multiplicity of laws, the Suez tribunal interpreted them as separate layers moving in parallel directions and simultaneously applicable to the factual circumstances of the case.⁷⁹ As a result, it insisted on keeping a great distance between bodies of norms, which it perceived as separate and independent legal units. This particular way of ordering bodies of norms may indeed be read as a ‘general reluctance […] to openly decide potential conflicts between investment protection and public policy objectives’.⁸⁰

7.3.4 Taking into Account

A selected integrationist perspective on the relation between investment treaty norms and human rights was articulated in the Al-Warraq case.⁸¹ The dispute originated from criminal proceedings in absentia by Indonesian authorities against an investor from Saudi Arabia holding shares in an Indonesian bank. The investor brought claims against Indonesia under a multilateral investment treaty (OIC Agreement)⁸² and used international human rights law to interpret its provisions. Drawing on the ‘principle of systematic integration of international law norms’,⁸³ the investor brought the right to a fair trial under article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee’s General Comment 13, regional human rights institutions’ pronouncements on ‘presumption of innocence’,⁸⁴ the ‘basic rights’ and the fair and equitable treatment standard under the OIC Agreement into relation.⁸⁵

The tribunal concurred with the investor that certain civil and political rights were part of investment protection norms, but it distanced the notion of ‘basic rights’ under the OIC Agreement from human rights norms by highlighting the particular ‘object and purpose’ of the former (i.e. investment promotion and protection).⁸⁶ However, the tribunal construed greater proximity between the FET standard and the norm against ‘denial of justice’ under various human rights instruments, in particular article 14(3) of the ICCPR. Eventually, the tribunal decided that ‘denial of justice constitutes a clear violation of the FET standard’.⁸⁷ The tribunal brought ICCPR norms and the FET standard in relation after claiming that ‘the ICCPR is now regarded as a part of “general international law”’, which suggests that ‘general international law’ was used as an ‘overarching norm’ to connect ICCPR norms to the investment legal order.⁸⁸ The Urbaser dispute⁸⁹ between foreign investors and Argentina, related to a concession for water and sewage services under the terms of the Spain–Argentina BIT, partly redefined the openness of ISDS to human rights. The question of the relation between international investment agreements and human rights emerged in the context of a counterclaim by Argentina seeking compensation for damages from the investor, which affected basic human rights.⁹⁰ In contrast to the Suez dispute, investors did not consider human rights ‘irrelevant’ but distanced them through interpretive practices. The investors claimed that human rights were duties of the state rather than of private companies and said that Argentina was under the ‘obligations regarding the population’s right to water, and its obligations towards international investors’, which ought to be fulfilled ‘simultaneously’,⁹¹ reflecting the approach of the CMS and Suez awards. The investors also drew on the precedent of the Biloune v. Ghana dispute, in which the tribunal decided that ‘a ruling on human rights violations is outside the scope of its jurisdiction’.⁹² While the investors emphasized the BIT, claiming that its ‘provisions, principles and rights’ were ‘essential to resolve the dispute’, Argentina maintained that the ‘applicable law’ consisted of the ‘BIT, Argentine law and general international law’ and that they ought to be applied ‘jointly and harmoniously’.⁹³ According to Argentina, the BIT was not ‘a set of self-contained rules’ and therefore ‘international law in general’ had to be applied, including ‘imperative international law’, which trumped standards of investment protection.⁹⁴ The Urbaser tribunal responded to this situation of multiplicity by situating the legalities at play within an overarching structure. It found that ‘the BIT does not represent, in the view of the Contracting Parties and its clear text, a set of rules defined in isolation without consideration given to rules of international law external to its own rules’.⁹⁵ Drawing on the Tulip annulment decision,⁹⁶ the tribunal listed various international human rights instruments followed by article 31(3)(c) of the VCLT and decided that ‘the BIT cannot be interpreted and applied in a vacuum’ and that, while it ought to be ‘mindful of the BIT’s special purpose as a Treaty promoting foreign investments’, ‘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 relating to human rights’.⁹⁷ Reliance on ‘overarching norms’, which the tribunal implicitly construed by interpreting the provisions on applicable law under article X(5) of the BIT and article 42 of ICSID Convention, enabled the tribunal to place the BIT in ‘the overall system of international law’.⁹⁸ Conflicting statements about the relation between international investment and human rights norms were brought forward in the Bear Creek dispute,⁹⁹ involving claims by a Canadian mining company investing in a mining project in Peru under the investment chapter of the Canada–Peru Free Trade Agreement (FTA). The investment project generated acute protests by affected Indigenous communities, including the Aymara population, inhabiting the surrounding area and demanding respect for their human rights. With regard to the applicable law to the dispute, the investor and the state focused on the FTA and applicable rules of international law.¹⁰⁰ However, two civil society organizations presented a description of the facts and of the law which highlighted connections between the Aymara population’s Indigenous rights and the FTA provisions.¹⁰¹ The two organizations argued that Indigenous rights had to be taken into account when interpreting the FTA.¹⁰² In his dissenting opinion, co-arbitrator Sands drew on the Urbaser award to argue that consultation requirements in article 15 of the International Labour Organization (ILO) Convention 169 were part of the ‘applicable rules of international law’ which the tribunal could ‘take into account’.¹⁰³ By failing to carry out its obligations vis-à-vis the Aymara peoples’ ‘rights under international law’, the investor contributed to the demise of the investment. Consequently, the amount of damages to be awarded was to be reduced by half.¹⁰⁴ Although co-arbitrator Sands’ dissenting opinion in Bear Creek and the award in Urbaser placed a different degree of emphasis on human rights,¹⁰⁵ both statements strengthened the expectation that international investment agreements cannot be interpreted in isolation from other parts of the legal order.¹⁰⁶ Claims about the primacy of human rights over investment protection norms were formulated by the state in the South American Silver dispute, related to an investment in mining activities in Bolivia under the terms of the United Kingdom–Bolivia BIT. The dispute stemmed from measures adopted by Bolivia to protect Indigenous communities inhabiting the areas surrounding the investment project. The parties to the dispute disagreed over the relation between the BIT and international law and between the BIT and the Bolivian national legal system. The investor deemed the BIT to be the ‘primary source of law and lex specialis, as supplemented by general principles of law, as needed’.¹⁰⁷ It distanced domestic law, arguing that it did not form part of the ‘law applicable to the merits of the arbitration proceeding’¹⁰⁸ and contended that recourse to supplementary means to interpret the BIT was ‘unnecessary’.¹⁰⁹ By contrast, Bolivia demanded that a wider body of norms be taken ‘in consideration’ when interpreting the applicable law.¹¹⁰ The state said that its constitution and international norms on the protection of Indigenous rights¹¹¹ were ‘supplementary’ to the BIT and prevailed over norms in investment treaties in case of conflict.¹¹² The investor contested this representation, arguing that the invoked rights could not be taken into consideration by the tribunal since they were not binding on the United Kingdom and did not constitute customary international law or general principles of law.¹¹³ Having identified the BIT as ‘the principal instrument’¹¹⁴ for resolving the dispute, the tribunal found that the tool of ‘systemic interpretation’ under article 31(3)(c) of the VCLT is not limitless and must be applied with caution.¹¹⁵ According to the tribunal, ‘this principle must be applied in harmony with the rest of the provisions of the same article and cautiously, in order to prevent the tribunal from exceeding its jurisdiction and applying rules to the dispute which the Parties have not agreed to’.¹¹⁶ Eventually, the tribunal concluded that Bolivia had to pay compensation and compound interests to the investor but dismissed all other claims of the investor.

7.3.5 Constrained Entanglements

The previous analysis of ISDS cases suggests that strategic, institutional and cultural factors impacted the way actors brought international investment law and ‘other’ legalities in relation. In a context with high institutional barriers to access and with an unequal representation of the interests involved, certain claims were accorded greater weight than other, competing ones. In particular, investment arbitrators and lawyers representing investors and states played a dominant role, whereas the voice of other affected polities was silenced.

The ‘tension between proximity and distance’¹¹⁷ in investment treaty disputes was shaped by the interplay of a limited number of actors. Understandably, with the exception of the Al-Warraq dispute, investors had clear incentives to keep human rights law at bay in investment disputes. By contrast, states had stronger incentives to draw on that law to formulate their defences. Non-disputing parties and actors not represented in ISDS – workers, Indigenous groups, poor communities – had limited access to inform investment arbitrators’ decisions. In the Bear Creek dispute, arbitrators denied a request for participation as amicus curiae by one academic institution, showing little consideration for actors other than the parties to the dispute, including disputes generating ‘public interest’.¹¹⁸

As a consequence, entangled legalities in ISDS have mainly reflected the preferences of foreign investors, states and investment arbitrators. From this perspective, greater participation from affected outsiders¹¹⁹ may lead to a greater variety of claims and forms of relation than the status quo allows. Yet this is unlikely to lead to entanglements that would be independent from the institutional and ideational structures of investment arbitration – enhanced participation would still operate within structural constraints.

Indeed, the analysis of ISDS cases has also shown that the multiplicity of laws was framed from the perspective of the dominant interpretive and legal frames of reference in the investment arbitration context and in conformity with the interface norms recognized within the ISDS ‘community of practice’.¹²⁰ In particular, investment tribunals approached multiplicity from the standpoint of international investment law by relying on the principle of ‘systemic integration’ in article 31(3)(c) of the VCLT.¹²¹ This principle was used to tie bodies of formal international law that were recognized by actors as the relevant law. Through this integrating principle of treaty interpretation, lawyers and arbitrators connected international investment and human rights norms by situating them within the ‘system’ of general international law as opposed to framing them as two separate legal systems¹²² and ordering them through ‘reception norms’.¹²³ The dominant structures of relation observed reflect the institutional background in which ISDS lawyers have been trained and work.¹²⁴ ISDS professionals’ mindsets and the ‘discursive policies’¹²⁵ in which they are situated may contribute to explaining the particular modes of ordering multiplicity in ISDS. These situated jurists seem to share a particular ‘way of thinking’ about the law of foreign investment arbitration, which shapes the way they practice it in relation to ‘foreign’ legalities.¹²⁶ These actors operate in a professional environment that does not create strong incentives to question the dominant schemes for thinking and practising law, much less to depart from them. For example, these specialists have to behave in conformity with the rules of the game of the institutional site in which they operate¹²⁷ in order to pursue or maintain reputation.¹²⁸ These rules include shared presuppositions about the nature of ‘international investment law’, its ‘sources’, institutional circumstances and the ‘rituals’¹²⁹ of international arbitration. According to the recognized norms of investment arbitration, the rules on jurisdiction, applicable laws and consent of the parties have narrowed the space for linking bodies of norms in practice.¹³⁰ For example, the doctrine of the limitation of tribunals’ jurisdiction¹³¹ to ‘investment disputes’ has enabled adjudicators to create distance between bodies of norms and strengthen the autonomy of their legal order from the interference of competing legalities. Similarly, international investment lawyers perceive that there must be ‘legal grounds’ for tribunals to consider human rights norms.¹³² ISDS insiders may benefit from the dominant mode of ordering legalities in this setting – therefore there seem to be fewer incentives to change the status quo than to maintain it.

In summary, the dominant interests, institutional structures and ‘legal culture’¹³³ in ISDS seem to have influenced the way situated actors have ordered multiplicity in that setting. However, ultimate conclusions on the implications of actors’ ideational context and strategic interests for the particular forms of enmeshment observed seem premature. For example, it is not clear whether investment arbitrators’ background had more influence than the material incentives associated with the international investment dispute settlement culture.¹³⁴ Not only did arbitrators with expertise in public international law decide in favour of foreign investors in some cases, they also kept investment protection and human rights norms at a great distance from each other, against our expectations.¹³⁵ This finding suggests that arbitrators’ proficiency in public international law and human rights law would not automatically translate into an outcome where the distance between bodies of norms is reduced, as other factors may be simultaneously at play. For example, arbitrators’ interests, including reappointment as arbitrator, may have had greater impact in shaping arbitrators’ decision-making. They may have created proximity or distance between bodies of norms to pursue their own goals. In this respect, the potentially ‘addictive’¹³⁶ practice of investment arbitration and the high financial stakes involved in it may have played a greater role than, or at least interplayed with, the legal background of its participants in the formation of relations between bodies of norms. From this perspective, to ‘properly train’ the future operators of ISDS¹³⁷ may indeed be necessary but perhaps not enough.

7.4 Entangled Legalities at the Margins

7.4.1 Beyond ISDS

Thus far, I have contextualized interpretative practices through which international investment and human rights norms have been brought in relation in investment adjudication settings. The statements of investment arbitrators and of the lawyers representing foreign investors and states have been given greater weight than those of other stakeholders, partly due to the dominant interests and ideational context of investment treaty arbitration. Civil society input has remained limited and only a few legal specialists have been authorized to determine the relative weight of legalities at play at that site. Yet ISDS is not, and should not be, the only global governance site for determining relations between these legalities. Rather, the claims of institutions and affected actors ‘at the margins’ of that context and its discourse should also be accounted for when appraising the enmeshment of the overall order. Against the background of the so-called ‘legitimacy crisis’ of international investment law,¹³⁸ expressions of contestation have encouraged a reform of investment agreements and investment dispute settlement. The reform process could pave the way for greater civil society input than the status quo allows, thereby creating room for closer proximity with other legalities. In this context, struggles for change within and from international investment law are situated at multiple sites and involve different actors with competing interests and approaches to reform.

7.4.2 Reforming Investment Agreements

At sites of treaty negotiation, states have responded to the legitimacy crisis of international investment law by rearticulating their relation with it through different lawmaking practices. While countries like Ecuador, Venezuela, Argentina and Bolivia have withdrawn or intended to withdraw from the ICSID Convention and BITs, others have amended existing investment treaties.¹³⁹ The wording of these texts indicates that state parties have given human rights some consideration.¹⁴⁰ Similar references have appeared in ‘new generation international investment agreements’, originally championed by the United States and Canada and subsequently adopted by the EU.¹⁴¹ The concept of ‘governments’ right to regulate’, included in the 2017 Colombia model BIT as well as in the 2019 Dutch Model BIT,¹⁴² has opened a space to construe connections with states’ obligations under international human rights law.¹⁴³ The Comprehensive Economic Trade Agreement (CETA) between the EU and Canada has brought together investment protection, trade and sustainable development and labour and environmental protection norms, and article 8.9 of its investment protection chapter reaffirms state parties’ ‘right to regulate’.¹⁴⁴ Similar lawmaking practices, driven in particular by the interests of economically powerful countries, include ‘mega-regulation’ instruments like the Trans-Pacific Partnership that has incorporated environmental and labour norms, perhaps to address demands by civil society actors concerned with the impact of ISDS on social and environmental protection within domestic legal systems.¹⁴⁵ Therefore, processes of investment treaty negotiations, especially if transparent and open to the participation of affected stakeholders,¹⁴⁶ are potentially effective arenas for reshaping entanglements through textual references.

Yet, we should not read too much into these references as they tell us little about how relations with other, competing polities and their legal orders ought to be ordered.¹⁴⁷ On the one hand, their relationship remains formally open and its shape will be determined only through political processes and the practice of societal actors. On the other hand, those references do not reflect the more contestatory claims of actors who challenge the very existence of international investment protection. While those provisions may enable linkages with ‘community interests’,¹⁴⁸ it remains to be seen how the relevant decision-makers will weigh bodies of norms in practice. Under current structural circumstances in ISDS, characterized by a substantial preference for ‘stronger rather than weaker investor protection’¹⁴⁹ and under-inclusiveness of relevant actors, a concrete change from dominant ways of dealing with multiplicity seems unlikely. Future practice might tell us more about the interface norms at play, and much is likely to depend on who the actors construing them will be. However, efforts at rewriting investment treaties may be seen as attempts to respond to growing voices of contestation stemming from other sites in the overall order.

7.4.3 Human Rights Claims

Similarly to the main type of interface norms construed in investment adjudication contexts, human rights experts have approached investment protection norms through overarching norms, which might be explained by taking account of the ideational and institutional context in which they operate. For example, in the Sawhoyamaxa case,¹⁵⁰ involving a dispute over human rights of Indigenous communities in Paraguay, the Inter-American Court of Human Rights articulated its view of the relationship between international investment law and the Inter-American Convention on Human Rights. Paraguay sought to justify non-enforcement of the Indigenous people’s property rights by arguing that the land, which had been bought by a German investor, was protected under an investment treaty between Paraguay and Germany.¹⁵¹ Yet the court regarded the Inter-American Convention as the ultimate frame of reference and accorded it more weight than investment agreements. It ruled that ‘the enforcement of bilateral commercial treaties […] should always be compatible with the American Convention, which is a multilateral treaty on human rights that stands in a class of its own and that generates rights for individual human beings and does not depend entirely on reciprocity among States’.¹⁵² Under the presidency of Judge Cançado Trindade, the court’s interpretation reflected a strong commitment to human rights law.

Similarly, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has approached investment agreements through ‘overarching norms’, reflecting a conception of order under international law where human rights are accorded primacy.¹⁵³ For example, the former independent expert on the promotion of a democratic and equitable international order has claimed that ‘in case of conflict, only the highest public courts can decide in the light of the totality of international law. Until amended by States Members, the Charter of the United Nations remains the principal treaty that determines the structure and functioning of the international order.’¹⁵⁴ Therefore ‘[s]tates must ensure that all trade and investment agreements recognize the primacy of human rights and specify that, in case of conflict, human rights obligations prevail’.¹⁵⁵ In the eyes of the independent expert, international investment norms and human rights were to be integrated within a hierarchical form ordered through the principle of binding character of treaties, good faith and in conformity with article 103 of the United Nations Charter.¹⁵⁶

In its General Comment 24, the UN Committee on Economic, Social and Cultural Rights articulated a similar hierarchical conception of order between competing legalities.¹⁵⁷ The Committee claimed that: ‘[s]tates parties should identify any potential conflict between their obligations under the Covenant and under trade or investment treaties, and refrain from entering into such treaties where such conflicts are found to exist, as required under the principle of the binding character of treaties’.¹⁵⁸ The group of experts distinguished ‘investment treaties currently in force’ from ‘future treaties’. In the first case, interpretation ‘should take into account the human rights obligations of the state, consistent with Article 103 of the Charter of the United Nations and with the specific nature of human rights obligations’.¹⁵⁹ In the second case, ‘[states parties] are encouraged to insert, in future treaties, a provision explicitly referring to their human rights obligations, and to ensure that mechanisms for the settlement of investor–state disputes take human rights into account in the interpretation of investment treaties or of investment chapters in trade agreements’.¹⁶⁰ The Committee’s stance towards the investment protection suborder reproduced the Inter-American Court of Human Rights’ approach discussed in Section 7.4.3.

Over time, human rights specialists have combined ‘overarching norms’ with less imposing practices aimed at persuading states to take account of their human rights obligations when making new investment agreements. One example is the 2018 initiative ‘Crowd-Drafting: Designing a Human Rights-Compatible International Investment Agreement’.¹⁶¹ Its promoters referred to a ‘human rights-based approach’ to international investment treaty-making.¹⁶² Attempts at crafting a ‘human rights impact assessment’ norm, addressed both at states parties to international investment agreements¹⁶³ as well as companies as part of their due diligence obligations, fall within these accommodation strategies.¹⁶⁴ The United Nations Conference on Trade and Development’s (UNCTAD) initiatives to investment law reform have adopted a similar approach, seeking to promote greater convergence with human rights and sustainable development norms, as exemplified by the UNCTAD’s Investment Policy Framework for Sustainable Development.¹⁶⁵ Most recently, overarching norms seem to have informed the ongoing struggle for a new international ‘instrument’ on global business and human rights, as reflected in particular in article 14 of its second revised draft, which demands that investment agreements be consistent ‘with international law principles and instruments’.¹⁶⁶

7.4.4 Reforming Investment Adjudication

The effects of entangled legalities have often been located in the Global South, in places where foreign investments affect local communities. At these sites, often characterized by a multilayered and scattered legal landscape where transnational and domestic bodies of norms contradict each other,¹⁶⁷ local populations have mobilized human rights against the state and global capital.¹⁶⁸ Local communities have contested the proximity of investment protection norms to their domestic legal order,¹⁶⁹ but their claims have received little consideration in investment jurisprudence.¹⁷⁰ In recent years, struggles against investment protection have become visible in the Global North, too. Particularly in Europe, citizens, environmental activists and other political actors have used contestatory mechanisms to distance investment treaties from their domestic legal orders. Protests and claims of political parties and NGOs against the intrusion of the Transatlantic Trade and Investment Partnership (TTIP), CETA and the ISDS norm into the European legal order and the constitutional order of EU member states have been one manifestation of this practice of resistance.¹⁷¹ In this context, European institutions and courts, too, have become important actors. The European Commission’s proposal to replace ISDS with a multilateral investment court might open a space for a wider number of actors to create different forms of relations with human rights.¹⁷² The Court of Justice of the European Union (CJEU) has recently shown a sign of resistance to investor–state arbitration by ruling that the ISDS provision in BITs between EU member states is ‘not compatible’ with EU law.¹⁷³ By contrast, in its recent ‘CETA Opinion’, the CJEU has shown more openness to the prospect of an investment court system.¹⁷⁴

In the context of ISDS reform, currently under the auspices of UNCITRAL Working Group III, the debate has focused on procedural and institutional design issues rather than on questions about the relations between investment protection and other substantive norms.¹⁷⁵ However, some states and international institutions have emphasized connections with human rights, too. For example, in a letter addressed to participants in the ISDS reform process, human rights experts have highlighted that international investment agreements are often incompatible with international human rights law and the rule of law.¹⁷⁶ They called for a ‘fundamental systemic change’ of ISDS, beyond procedural reform, and towards a ‘multilateral system’ that ‘takes into account the rights and obligations of investors and states, in line with all applicable international laws and standards concerning human rights’.¹⁷⁷ They also claimed that greater proximity to human rights and the Sustainable Development Goals would enhance the legitimacy and effectiveness of the UNCITRAL process.¹⁷⁸ The government of South Africa has also strongly advocated to take account of human rights and the principle of sustainable development.¹⁷⁹

7.5 Conclusion

This chapter has analysed how relations between international investment and human rights norms have been construed in multiple global governance sites. Investment treaty arbitration has remained a central arena where foreign investors, states, investment adjudicators and NGOs have supplied competing forms of relation between bodies of norms, especially when defining the law applicable to the dispute. These relations have reflected the preferences and the ideational context of the actors involved in their construction.

In the majority of cases examined, the claims of investment arbitrators, investors and states have been given greater consideration than the claims by NGOs and the public at large, limiting room for contestation. Foreign investors have sought to narrow the scope of relevant bodies of norms whereas states and NGOs have aimed at expanding it. Over time, ISDS participants, and investment adjudicators in particular, have tended to regard relations with human rights norms with less hesitancy. Although the decisions of investment tribunals affect many constituencies, possibilities for these affected outsiders to make their claims heard in investment arbitration have been limited. Their priorities have often been silenced in sites of investment treaty negotiation too.

The analysis has observed an evolution in the way actors have dealt with human rights in ISDS over time, although dialectic tendencies of proximity and distancing persist. Initially, foreign investors adopted a clear rhetoric against the relevance of human rights in ISDS. In a second phase, they recognized their relevance but they kept them at a distance to downplay any potential conflict with investment protection standards. As states began to refer to human rights norms in their defences, investment tribunals had to find ways to articulate relations with them. The current phase seems marked by a very limited reliance on human rights on the part of investors and tribunals and more frequent linkages construed by states and NGOs, thereby creating entanglement on a rhetorical level but one constantly undercut by using other tools to create distance. In most of the cases examined, ISDS participants have used ‘overarching norms’ to order legal pluralism within international law, which may be explained by reference to the cultural and institutional context of ISDS. However, the dominant use of this ‘interface norm’ has not led to a new, fully integrated system as considerable contestation persists in other parts of the legal order. Indeed, forms and dynamics of entanglement have become observable in struggles ‘at the margins’ of and beyond the bounds of ISDS. These forms of contestation have led to a process of reform of international investment agreements and investment adjudication that may create room for shaping new forms of relations with human rights. However, only the future practice of actors will tell us how they will be construed. In the different contexts examined, the practice of taking other norms ‘into account’ has been one of the main tools for ordering multiplicity, yet without determining the substantive outcome of the practice of giving regard to other bodies of norms. Even when using this interface norm, ISDS participants have had discretion to determine the relative weight of the legalities brought together. Human rights actors have also had recourse to a similar interface norm when articulating their views of the relation with investment agreement, but their vision of legal order differs from the one put forward in the practice of investment arbitration.

8 International Trade Law Legal Entanglement on the WTO’s Own Terms

Lucy Lu Reimers

8.1 Introduction

Ever since the inception of the contemporary globalized trade regime, environmental concerns found their way into the regulatory system framed by international trade law. The interaction (and tension) between trade and environmental interests further intensified with the development of international environmental law, and global trade was placed under the scrutiny of two overlapping regulatory regimes which are commonly perceived as having diverging aims and rationales. A pronounced outlet for this relationship was found within the World Trade Organization (WTO) system, particularly in trade disputes in which WTO rules interacted with public policies seeking to address environmental externalities. This chapter explores the way in which the relationship between international trade law and norms governing environmental protection are construed from within the WTO dispute settlement system. The findings shine a light on evolving forms of legal entanglement that challenge the dominant perception of the WTO as an insular regime prima facie hostile to international environmental law. Surprisingly, the analysis shows that even in controversial trade environment disputes (e.g. infamously Tuna Dolphin I), all parties to the dispute routinely refer to norms of international environmental law to make their respective claims. With respect to the Panels and the Appellate Body, the findings indicate that external environmental norms are allowed to penetrate WTO law more often than commonly assumed, although such linkages do not necessarily result in more ‘environmentally friendly’ interpretations/applications of trade law. Moreover, without centralized coordination, WTO judicial bodies tend to construe the relationship with outside norms in an ad hoc and discretionary way, relying on ‘interface norms’ to invoke external rules of international environmental law on a case-by-case basis, while keeping them formally at bay. Although the mechanisms of relationing employed by the WTO judicial bodies may seem unprincipled at first glance, an analysis over time reveals how the Panels and the Appellate Body repeatedly emphasize certain attributes in their treatment of outside norms (such as multilateralism, inclusiveness and consensus), and have allowed for more progressive interpretations to evolve over time (through so-called irritative norm conflict).

8.2 Trade and Environment: Resetting the Stage for an Age-Old Debate

8.2.1 Trade and Environment: Unresolved Tensions and Emerging Forms of Entanglement

The General Agreement on Tariffs and Trade (GATT) was signed in 1947 on the cusp of what has been dubbed the ‘Great Acceleration’, a period of intensified human impact on the Earth that over the latter half of the twentieth century significantly contributed to the global environmental challenges we face today.¹ International environmental law was still in its ‘early glimmers’.² Nevertheless, the 1947 GATT already ‘recognized environmental concerns in its Article XX(b) and (g) exceptions’.³ By 1994, and the founding of the WTO, the extent of human-wrought environmental degradation had become increasingly apparent, and international environmental law had developed and matured into its modern incarnation of a sprawling global governance complex. Two years prior, the United Nations Conference on Environment and Development had taken place in Rio de Janeiro, and produced a number of instruments, including the Rio Declaration, Agenda 21, the United Nations Framework Convention on Climate Change (UNFCCC) and the Convention on Biodiversity (CBD).

Notably, modern international environmental law evolved within an international legal environment in which international trade rules were already long established and could not be ignored. The drafters in Rio took these existing legal structures into account by explicitly integrating international trade norms into the new instruments. Principle 12 of the Rio Declaration, for example, emphasizes the importance of ‘an open international economic system’ and states that ‘[t]rade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade’, which is almost a word-for-word copy of the chapeau of GATT Article XX.⁴ Notably, the same wording is reproduced in Article 3(5) of the UNFCCC.⁵ Thus, international environmental law was actively entangled with the body of norms that governs the multilateral trading system.

From within the trade law sphere, efforts at legal entanglement with international environmental law were more tentative. While a reference to sustainable development was included in the preamble to the Marrakesh Agreement establishing the WTO (1994), the 1947 GATT was incorporated wholesale into the new WTO Agreement, with no changes or additions to the environmental provisions of the original text indicating how WTO law should relate to international environmental law. This was problematic because a host of new multilateral environmental agreements (MEAs) had sprung up since 1947, some of which explicitly relied on potentially GATT-inconsistent trade measures for their implementation (e.g. the Basel Convention and the Montreal Protocol).⁶ Further, the extent to which WTO rules restricted national environmental policy space also remained unclear, particularly in relation to environmental measures targeting processing and production methods (PPMs) and the applicability of the precautionary principle.⁷

The lack of relationing can be explained by GATT signatories’ diverging interests with regard to trade and environment concerns at the time (and still prevailing today). While developed countries supported the integration of environmental standards into international trade policy to counter ‘environmental dumping’, developing countries resisted, fearing market access restrictions due to ‘green protectionism’.⁸ Thus, a meaningful debate for greater integration of environmental concerns within the trade regime was ‘out of the question’. Politically, the ‘environmental critique [also] came at an awkward time for GATT signatories since the Uruguay Round entered a deep crisis in the early 1990s, and the agricultural dispute between the USA and the EU threatened to scupper talks’.⁹ Thus, an opportunity for entanglement – or at least clarification – between the two bodies of norms was missed. This state of affairs was supposed to be remedied in the subsequent Doha Round of trade negotiations, which gave members a mandate to negotiate the relationship between WTO rules and specific trade obligations set out in MEAs.¹⁰ The talks failed however (they were finally abandoned in 2015),¹¹ and thus a second opportunity for ‘enhancing mutual supportiveness’ was missed. Instead, it became incumbent upon the dispute settlement bodies to mediate the relationship between free trade and environmental protection (and, by extension, the ‘clash of interests’ between developed and developing countries).

8.2.2 The Question of Insularity

According to the provisions of the Dispute Settlement Understanding (DSU) the WTO dispute settlement mechanism ‘has exclusive [as well as compulsory and quasi-automatic] jurisdiction to resolve disputes arising from violations of the WTO covered agreements’.¹² The WTO Dispute Settlement Body (DSB) in particular has ‘the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements’.¹³ Without a centralized mechanism for resolving international trade and environment conflicts, nor a specialized environmental court, the DSB has become central to coordinating the relationship between WTO law and international environmental law. The Panels’ and the Appellate Body’s (unanticipated and unofficial) role in mediating the relationship between WTO law and external norms raises the question of whether (and to what extent) international law not contained in the covered agreements is applicable in WTO dispute settlement.

While the majority of scholars maintain a restrictive view regarding the extent to which other norms of international law may influence the interpretation and application of WTO law,¹⁴ others have pointed out that the DSU does not contain an explicit limitation with regard to the applicable law.¹⁵ The distinction between the jurisdiction of the WTO DSB and applicable law in WTO dispute settlement is relevant here.¹⁶ While the jurisdiction of the WTO DSB is restricted to disputes arising out of the covered agreements,¹⁷ WTO law contains no explicit provision which identifies or restricts the law that should apply to the disputes.¹⁸ Thus, international law from all sources is potentially applicable as WTO law. Such a reading seems to be supported by the Panel in Korea-Government Procurement, which held that ‘Customary international law applies generally to the economic relations between the WTO Members […] to the extent that the WTO treaty agreements do not “contract out” from it.’¹⁹ The Panel saw no basis ‘for arguing that the terms of reference [set out in the DSU] are meant to exclude reference to the broader rules of customary international law’.²⁰ There is no reason to assume why the same logic should not also apply with regard to the external rules of treaty law (applicable between the parties).

The degree to which ‘external’ international law has a bearing on WTO law is thus largely up to the discretion of the WTO dispute settlement bodies. However, the Panels and the Appellate Body are viewed as having made insufficient use of this flexibility,²¹ and have been criticized for creating ‘a value hierarchy that [favours] trade over environmental concerns and [operates] as a barrier to the integration of environmental considerations into the law of the GATT/WTO’.²² Thus, the dominant perception of international trade law is of a distinct legal system that is bounded, rigid and hostile to environmental norms and considerations. The following account of irritative norm conflict complicates this picture.

8.3 Irritative Norm Conflict and Contingent Forms of Entanglement over Time

The debate about whether trade liberalization and environmental protection are in conflict with one another is not new and does not need to be rehashed in detail here.²³ Suffice to say that many environmentalists and scholars have long criticized the legal framework established by the GATT and the WTO as ‘inherently biased against environmental protection and towards economic growth’.²⁴ GATT jurisprudence, beginning with the Tuna Dolphin I, seemed to confirm the prioritization of international trade obligations vis-à-vis environmental protection.²⁵ However, a close reading of the trade and environment disputes over time reveals subtle shifts in the relationship between the WTO and environmental norms and a modicum of responsiveness of the GATT – and later the WTO – dispute settlement bodies towards evolving social context and external pressures, most prominently in Shrimp-Turtle.

Disputes brought before the WTO DSB constitute important historical ‘flashpoints’ for the study of legal entanglement, as they galvanize actors to formulate claims about the relationship between international trade law and other bodies of norms in legal terms.

8.3.1 Tuna Dolphin I

8.3.1.1 Overview

Tuna Dolphin I was a highly controversial trade and environment case brought to the GATT dispute settlement mechanism by Mexico in 1991.²⁶ The dispute concerned US measures aimed at reducing dolphin mortality incidental to tuna fishing, a practice common in the Eastern Tropical Pacific (ETP) region. The measures comprised an embargo on yellowfin tuna caught with purse seine nets in the ETP, certification requirements for imported tuna and a prohibition on marking tuna products harvested in the ETP with purse seine nets as ‘dolphin safe’. While the dispute became notorious for the Panel’s hard-line position on environmental trade measures, it is notable from the perspective of legal entanglement as – contrary to expectations – both parties to the dispute referred to international environmental law to support their respective claims. Tuna Dolphin I was closely followed by the filing of a second dispute in 1992 – known as Tuna Dolphin II – in which the European Communities (EC) challenged the United States’ secondary embargo against countries that re-exported tuna from countries under the primary embargo.²⁷

8.3.1.2 Legal Entanglement

Notably, both the United States and Mexico implicitly accepted the relevance of international environmental treaty law to the dispute at hand (in addition to relevant GATT provisions). The United States, invoking the Convention on International Trade in Endangered Species (CITES), argued that countries should not be forced to allow access to their markets as an incentive to depleting the populations of species that are vital components of the ecosystem.²⁸ Mexico countered by stating that CITES ‘did not include in its Appendix I list of species in danger of extinction any of the species of dolphins which the United States was claiming to protect’.²⁹

The Panel, finding a violation of the GATT’s substantive provisions (relating to quantitative restrictions and non-discrimination), turned to the environmental exceptions contained in GATT Article XX. In a fateful decision, the Panel interpreted a purely domestic scope to Article XX and ruled that its exceptions could not be invoked to justify extraterritorial measures.³⁰ Trade restrictions in response to other countries’ environmental policies or practices were per se inconsistent with the GATT.³¹ However, the Panel proceeded to argue that even if the GATT permitted extraterritorial protection of life and health, the United States had to first exhaust all GATT-consistent measures available to it, in particular through the negotiation of international cooperative agreements.³² This reasoning already hints at a general (though still implicit) understanding that environmental measures should be based on multilateral consensus in order to be taken into account by the WTO DSB/within the GATT framework, a notion that was further developed in subsequent case law.

Ultimately, the Panel ruled in favour of Mexico, concluding that the US trade embargo was inconsistent with the GATT and not justified under Article XX. Crucially, the Panel also set up the ‘infamous product/process distinction’ – prompting a debate that continues to this day – by ruling that the US was not allowed to embargo tuna products from Mexico based on the way tuna was produced.³³ The Panel took a more environmentally favourable stance with regard to the ‘dolphin-safe’ label, ruling that it did not violate the GATT ‘because the labelling regulations governing the tuna caught in the ETP […] applied to all countries whose vessels fished in this geographical area and thus did not distinguish between products originating in Mexico and products originating in other countries’.³⁴ Notably, this measure became subject to a subsequent dispute brought by Mexico in 2008, in US-Tuna II. The Panel reports in Tuna Dolphin I (1991) and II (1994) were never adopted due to the consensus requirement under old GATT dispute settlement rules.³⁵

8.3.1.3 Aftermath

Although the report remained unadopted, the Panel’s reasoning in Tuna Dolphin I generated widespread ‘controversy over the capacity of the multilateral trading system to accommodate legitimate environmental concerns’.³⁶ The United States, arguably one of the most powerful ‘shapers’ of the GATT/WTO legal regime, threatened to push for amendments to the GATT in light of international environmental objectives.³⁷ Proposals made towards this endeavour included a new ‘Environmental Code’ as a side agreement to the GATT and establishing an international tradeable pollution allowance system (similar to what was later instituted in the Kyoto Protocol) under the auspices of the GATT.³⁸ Although neither of the Tuna Dolphin I and II Panels’ reports were ever adopted and they retained little to no legal value following subsequent Appellate Body rulings, they significantly contributed to the perception of WTO insularity in relation to global environmental concerns.³⁹

8.3.2 Shrimp-Turtle

8.3.2.1 Overview

The legal outcome of the Shrimp-Turtle dispute was seen by many environmentalists as a breakthrough in the trade environment debate, indicating a more environmentally friendly interpretation of WTO law by the DSB. The dispute was brought jointly by India, Malaysia, Pakistan and Thailand, challenging a US environmental measure prohibiting the import of shrimp harvested without the use of Turtle Excluder Devices (TEDs). Not using TEDs during shrimp harvesting was linked to a high number of deaths of endangered species of sea turtles. The measures in Shrimp-Turtle ‘were thus closely analogous’ to those in Tuna Dolphin with the crucial difference that sea turtles were listed as endangered species in CITES.⁴⁰

8.3.2.2 Legal Entanglement

Like in Tuna Dolphin I, both the complainants and the defendant state invoked outside environmental norms – especially treaty law – to support their respective claims. The United States referred to the CITES Appendix I, implying that CITES provided a legal basis for its environmental trade measure.⁴¹ The USA further claimed that the use of TEDs had evolved into an international standard, invoking Agenda 21⁴² as well as the UN Fish Stocks Agreement to support its claim.⁴³ The complainants, on the other hand, argued that the US measure was not only in violation of the GATT but also inconsistent with CITES: while CITES did prohibit trade in sea turtles, it did not sanction restrictions on shrimp imports as shrimp were not an endangered species listed in any of CITES’s annexes.⁴⁴

The reference to sustainable development in the Preamble of the WTO Agreement significantly altered the ‘backdrop’ against which substantive WTO obligations were to be interpreted. The USA noted that the WTO Agreement was the first multilateral trade agreement concluded after the Rio Conference, and argued that trade rules should now operate ‘in a manner that [respected] the principle of sustainable development and [protected] and [preserved] the environment’.⁴⁵ The complainants, however, were quick to qualify of the reference to sustainable development by reading it in light of the principle of sovereignty and the special rights of developing countries under the WTO framework.⁴⁶

The dispute forced the Panel to revisit the question of extraterritoriality in relation to Article XX of the GATT. Although both the United States and the complainants had put forward arguments relating to how Article XX should be interpreted in light of outside norms (inter alia UNCLOS⁴⁷ and general principles of international law⁴⁸), the Panel restricted itself to interpreting Article XX within the object and purpose of WTO law and relevant jurisprudence. Echoing the GATT Panel’s reasoning in Tuna Dolphin I, it found that Article XX could not justify measures conditioning market access upon the adoption of certain environmental policies by exporting members as that would threaten the security and predictability of the multilateral framework for trade.⁴⁹

The Panel did not completely ignore international environmental law, however. It drew on the Rio Declaration to interpret the reference to sustainable development in the WTO Agreement, but used it to emphasize the right of each state to design its own environmental policies on the basis of its particular environmental and developmental situations.⁵⁰ The Panel further emphasized the principle of international cooperation by reference to inter alia Article 5 of the CBD (despite the USA not being a party to the CBD).⁵¹ The Panel found that instead of resorting to unilateral measures the USA should have entered into negotiations to develop internationally accepted conservation methods.⁵²

The Panel proceeded to examine whether international environmental law provided a justification for the WTO-inconsistent measure.⁵³ The Panel concluded that CITES ‘neither authorized nor prohibited’ the US import prohibition as it was directed at shrimp and not listed species of sea turtles.⁵⁴ Furthermore, while acknowledging that UNCLOS and Agenda 21 addressed the objective of limiting by-catches of non-target species in trawling operations, the Panel noted that these instruments do not require the application of specific methods.⁵⁵

Even though the Panel’s finding in Shrimp-Turtle is generally regarded as an environmental setback (primarily due to its restrictive interpretation of Article XX), it is remarkable from the standpoint of legal entanglement as all parties involved in the dispute frequently and directly referred to external environmental norms/instruments to support their claims. Notably, international environmental law was invoked both to support a flexible (i.e. environmentally friendly) as well as a more restrictive (i.e. trade-friendly) interpretation of GATT Article XX.

8.3.2.3 Appeal

On appeal, the Appellate Body acknowledged the right of WTO members to legislate for the protection of natural resources extraterritorially, overruling the Panel’s finding.⁵⁶ Accordingly, Article XX could justify measures conditioning market access on the adoption of certain conservation policies by exporting members.⁵⁷ Contrary to the Panel, the Appellate Body proceeded to take full advantage of the reference to sustainable development in the WTO Agreement in order to interpret the environmental exceptions of Article XX. It noted that the preamble gives ‘colour, texture and shading’ to the substantive obligations in the WTO agreements.⁵⁸ In particular, the Appellate Body held that because migratory sea turtles were listed under CITES as being in danger of extinction, they constituted ‘exhaustible natural resources’ within the meaning of Article XX(g) of the GATT.⁵⁹ The Appellate Body further stated that ‘[t]he words of Article XX(g) “exhaustible natural resources” […] must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment […] From the perspective embodied in the Preamble of the WTO Agreement, the generic term of “natural resources” in Article XX(g) is not “static” in its content or reference but is rather, “by definition evolutionary”’.⁶⁰

Ultimately, however, the Appellate Body found that while ‘the overall approach of the US shrimp ban was acceptable under the WTO’, the USA had failed to do justice to the requirements of the chapeau of Article XX.⁶¹ The Appellate Body held that in its application, the US measure had ‘intended an actual coercive effect on the specific policy decisions made by foreign governments’ since the application of the measure required other WTO members to demonstrate that a regulatory scheme was in place, which was essentially the same as in the USA.⁶² In addition, the Appellate Body also faulted the United States for having negotiated seriously with some but not other members about arrangements for sea turtle protection (as an alternative to the embargo), which had a discriminatory effect.⁶³ To determine whether the discrimination was also ‘unjustifiable’ in relation to the stated objective of protecting sea turtles, the Appellate Body turned to international environmental law.⁶⁴ Invoking the Rio Declaration (Principle 12), Agenda 21 and the CBD (Article 5), the Appellate Body found that the protection and conservation of highly migratory species of sea turtles demanded ‘concerted and co-operative efforts’,⁶⁵ and that, in general, transboundary/global environmental problems should be dealt with through cooperation and consensus to the greatest extent possible.⁶⁶

8.3.2.4 Aftermath

Following the Appellate Body’s ruling, which concerned the discriminatory application of the US measure, the United States made modifications in order comply with the ruling. Nevertheless, one of the original complainants, Malaysia, brought a compliance action under Article 21.5 of the DSU, ‘where it sought to reintroduce arguments about the per se unacceptability of trade measures to target other countries’ environmental policy’.⁶⁷ However, the Appellate Body ‘held its ground’, ‘[pronouncing] itself fully satisfied that the USA had addressed its concerns under the chapeau’, while ‘[expressing] surprise that Malaysia would, in effect, challenge the authority of the Appellate Body’s original ruling with arguments apparently inconsistent with it’.⁶⁸ The rulings in Shrimp-Turtle and the subsequent compliance proceedings thus represent a significant departure from the way the Tuna Dolphin cases had been handled by the GATT Panels. The Appellate Body corrected previous rulings with regard to PPM-based measures and extraterritorial environmental trade measures, while signalling a larger degree of deference towards members’ environmental objectives.

8.3.3 EC-Hormones

8.3.3.1 Overview

The EC-Hormones dispute before the WTO illustrates how the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) operates in relation to international standards and in relation to other norms of international law, specifically the precautionary principle.⁶⁹ Like the Agreement on Technical Barriers to Trade (TBT Agreement) (see US-Tuna II), the SPS Agreement goes beyond the non-discrimination principles enshrined in the GATT by promoting ‘global regulatory harmonization through the application of international standards’.⁷⁰ By requiring WTO members to base their measures on either international standards or on science and risk assessment (Articles 3.1 and 3.2), the SPS Agreement actively encourages legal entanglement in the area of sanitary and phytosanitary measures. The SPS Agreement explicitly recognizes specific international standardizing bodies as points of reference for compliance, including the Codex Alimentarius Commission (CAC’).⁷¹ Conformity with Codex standards implies conformity with WTO law,⁷² whereas a member’s decision to set standards higher than Codex standards is subject to a higher burden of proof to defend its own measures.

From the perspective of legal entanglement, the implications of this active coupling mechanism between the SPS Agreement and international standards versus the way WTO law relates to other norms of international law is significant. The WTO’s contrasting approaches to entanglement are best demonstrated in the EC-Hormones case. In the 1990s, following widespread public concern, the European Council introduced a set of measures prohibiting the placing on the market of hormone-injected meat. In 1996, the United States challenged these measures and brought the dispute before the WTO alleging violations of inter alia the SPS Agreement.⁷³

8.3.3.2 Legal Entanglement

The CAC had already developed standards for some of the hormonal substances concerned. The USA therefore contested the EC’s measures on the grounds that they were not based on the relevant international standards, guidelines or recommendations and that this departure from international standards could not be scientifically justified. The EC countered that WTO members had the right to choose their own levels of protection, which may be higher than those recommended by international standards, invoking the precautionary principle as a justification for a higher protection level.⁷⁴ While the SPS Agreement requires members to base their measures on risk assessments and available scientific data, the precautionary principle allows countries to take measures in the face of scientific uncertainty. Notably, the EC did not invoke Article 5.7 of the SPS Agreement which permits members to take interim measures in the face of insufficient scientific evidence and is generally viewed as reflecting the precautionary principle in the context of the SPS Agreement. The EC reasoned that this decision was deliberate because the measures were considered definitive and not provisional.⁷⁵ The EC also pointed out that the Codex standards had been adopted by a very slim margin in what was ordinarily a consensus-based system. By questioning the level of support for the Codex standards the EC expressed expectations about the substantive dimensions of the interface norm contained in the SPS Agreement: international standards should only be taken into account if they are considered legitimate, as indicated by widespread to universal acceptance during adoption.⁷⁶ The Panel rejected the need to consider by what margin any relevant standard was adopted,⁷⁷ and found that the EC measure violated the SPS Agreement by deviating from the relevant international standard (in the sense that it afforded a higher level of protection) without sufficient justification.⁷⁸ Further, the Panel found that the precautionary principle (to the extent that it could be considered as part of customary international law) ‘would not override the explicit wording’ of SPS provisions relating to risk assessment techniques (and scientific evidence), ‘in particular since the precautionary principle [had] been incorporated and given specific meaning in Article 5.7 of the SPS Agreement’.⁷⁹ The harmonization logic of the SPS Agreement thus contributed to lowering a member’s chosen protection threshold – in accordance with international standards adopted with only tenuous international support – while a relevant norm of international law (the precautionary principle) was dismissed in the process.

8.3.3.3 Appeal

The EC appealed the ruling, arguing that the precautionary principle’s applicability extended beyond Article 5.7 to influence risk assessment (and risk management) under Article 5.1 of the SPS Agreement, and thus operated to justify higher protection thresholds.⁸⁰ Notably the EC did not refer to the precautionary principle in the context of international environmental law but in the context of general and customary international law. The Appellate Body, siding with the Panel, found that while the precautionary principle may have crystallized in the field of international environmental law, its status as customary international law or a general principle of law was less certain. By relegating the principle to the confines of international environmental law, the Appellate Body downplayed its relevance for the dispute at hand. Further, the Appellate Body stated that ‘the precautionary principle does not, by itself, and without a clear textual directive to that effect, relieve a panel from the duty of applying the normal (i.e. customary international law) principles of treaty interpretation in reading the provisions of the SPS Agreement’.⁸¹ In effect, the Appellate Body communicated that whatever the state of the precautionary principle in international law was, ‘the principle could not override the explicit obligations contained in the SPS Agreement and it could not be used to justify measures otherwise inconsistent with the SPS Agreement’.⁸² The EC ultimately ‘lost’ the case as its measures were found not to have been based on appropriate risk assessment: the EC could neither prove ‘laboratory scientific evidence’ nor ‘real-world risk’ (misuse in the administration of hormones to animals).⁸³ This ruling flies in the face of the precautionary principle (as codified for example in Principle 15 of the Rio Declaration), the purpose of which is precisely to empower governments in the face of scientific uncertainty.

Nevertheless, the Appellate Body did point out that ‘a panel charged with determining for instance, whether “sufficient scientific evidence” exists to warrant the maintenance by a Member of a particular SPS measure may […] bear in mind that responsible, representative governments commonly act from the perspectives of prudence and precaution where risks of irreversible, e.g., life-terminating, damage to human health are concerned’.⁸⁴ This statement implies a greater degree of flexibility where the future application of Article 5 is concerned; the implication is that in cases of grave potential damage, Panels are to content themselves with a lower evidentiary standard for assessing a measure’s SPS consistency.⁸⁵

8.3.3.4 Aftermath

Following the EC-Hormones disputes, the EC made a concerted push for strengthening the precautionary principle in international law. After having unsuccessfully advocated for a renegotiation of relevant provisions within the SPS Agreement, the EC turned its attention to multilateral fora outside the WTO.⁸⁶ In 2000, the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (the ‘Biosafety Protocol’) was agreed upon, which regulates risks associated with the transboundary movement of living modified organisms. The Biosafety Protocol ‘[reaffirms] the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development’⁸⁷ and grants importing states the right to make decisions that would avoid or reduce potential adverse effects in the face of scientific uncertainty.⁸⁸ The Biosafety Protocol thus ‘multilateralizes the EU regulatory approach’ towards sanitary measures, opening the door to other countries to adopt restrictive, EU-style market access rules.⁸⁹ Unsurprisingly, one of the most contentious issues during the negotiation process was the Protocol’s relationship with international trade law.⁹⁰ In this regard, the preamble ‘[recognizes] that trade and environment agreements should be mutually supportive with a view to achieving sustainable development’ and ‘[emphasizes] that [the] Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements’ (while also ‘understanding that the above recital [was] not intended to subordinate [the] Protocol to other international agreements’). The EC also successfully campaigned for the inclusion of the precautionary principle in the risk assessment techniques developed by the Codex Alimentarius Commission.⁹¹ As a result, two newly negotiated documents, the 2003 and 2007 Working Principles for Risk Analysis for Food Safety for Application by Governments, recognize precaution as an inherent element of risk assessment.⁹²

After several years of keeping its genetically modified organism (GMO) measures in place while accepting the punitive tariffs imposed by the USA and Canada in return, the EC was able to produce scientific evidence to prove risk from synthetic growth hormones. The EC subsequently amended its law to bring them into compliance with the Appellate Body’s ruling.⁹³ Nevertheless, the USA and Canada continued to retaliate, prompting the EC to challenge the legality of continued retaliatory measures in 2005. This ‘follow-up dispute’ Canada/US – Continued Suspension (2008), gave the Appellate Body the opportunity to revisit its previous ruling (in light of the new normative developments that had occurred outside the WTO). In Canada/US – Continued Suspension, the Appellate Body developed the concepts of ‘risk assessment’ and ‘sufficiency of scientific evidence’ as ‘relational concepts’ implying that issues such as ‘the appropriate level of protection’ chosen by a government could shape the methodology and questions studied in risk assessment.⁹⁴ The Appellate Body also relativized the centrality of international standards and conceded that scientific evidence could be sufficient for one member but not for another.⁹⁵ This more deferential approach towards members’ right to regulate on the basis of precaution significantly departed from the Appellate Body’s initial reasoning in EC-Hormones.⁹⁶

8.3.4 EC-Biotech

8.3.4.1 Overview

The EC-Biotech dispute represents another deliberation on the extent to which the precautionary principle is applicable in relation to the SPS Agreement. In 2003, three exporters of agricultural products containing GMOs – the United States, Canada and Argentina – challenged the EC on some of its measures relating to GMOs. The EC had instituted a moratorium on the approval of GMOs during the period of October 1998 and August 2003 and, in addition, some EC member states had put in place national restrictions on GMOs and genetically modified foods. Notably, the EC’s regulatory regime for GMOs was (and is) significantly informed by the precautionary principle.

The dispute came on the heels of the adoption of the Biosafety Protocol, which was not only substantively relevant to the dispute at hand (namely GMO-related measures) but also incorporated a more robust version of the precautionary principle than the SPS Agreement.⁹⁷ Indeed, the complaint has been viewed as implicitly targeting the Biosafety Protocol in order to weaken its relevance for the SPS Agreement.⁹⁸ With regard to the trade–environment interface, the Panel’s reasoning in EC-Biotech is widely viewed as a setback for a mutually supportive relationship as the Panel prima facie dismissed the relevance of the Biosafety Protocol to the dispute.

8.3.4.2 Legal Entanglement

The EC justified some of the EC members’ national bans by invoking the precautionary principle as codified in the Biosafety Protocol. The EC argued that the SPS Agreement and the Biosafety Protocol were ‘so closely connected that they should be interpreted and applied consistently with each other, to the extent that is possible’; the two agreements were ‘complimentary’ and therefore ‘the Protocol’s provisions on precaution and risk assessment inform the meaning and effect of the relevant provisions of the WTO agreements’.⁹⁹ The complainants were not parties to the Protocol and rejected its application to the dispute. They argued that the Protocol did not constitute a ‘relevant rule of international law applicable in the relations between the parties’ and should therefore not be taken into account in the interpretation of the obligations under the WTO Agreement.¹⁰⁰

An amicus curiae brief is of note in the context of EC-Biotech as it makes additional claims about how the interface between trade law and environmental concerns/precaution should be managed. In its submission, the Centre for International Environmental Law (CIEL) noted that the Appellate Body had emphasized the importance, in certain circumstances, of interpreting terms in the WTO agreements in light of ‘the contemporary concerns of the community of nations’ (see Shrimp-Turtle).¹⁰¹ CIEL argued that ‘interpreting bodies’ consequently had a responsibility ‘to take into account [external treaties not ratified by all parties to the treaty being interpreted], especially when they address issues of global concern where the interests of the international community were involved’.¹⁰²

8.3.4.3 Aftermath

The EC decided not to appeal the ruling of the Panel and instead pursued a ‘Mutually Agreed Solution’, decided between Canada and the EU in 2009, which established ‘a bilateral dialogue on agricultural biotech market access issues of mutual interest’.¹⁰³ This cooperation agreement was subsequently reaffirmed in the EU–Canada Comprehensive Economic and Trade Agreement (CETA), which largely reproduced the text of the Mutually Agreed Solution in Article 25.2(1). Thus, CETA institutionalizes international cooperation on biotech market access and inter alia sets out the shared objective of promoting ‘efficient science-based approval processes for biotechnology products [emphasis added]’. This provision was criticized as running counter to the EC’s strict regulation of GMOs as informed by the precautionary approach and has generated concerns around the weakening of GMO protections in the EU.¹⁰⁴ Arcuri points out that while ‘international cooperation’ may sound innocuous and indeterminate, the fact that an international body of norms on low-level presence of GMOs already exists (the Global Low-Level Presence Initiative) and given that most state members of this framework are GMO producers with a clear interest in lowering GMO protections, the requirement of international cooperation may in fact further skew international standards on GMO protections, to the detriment of the EC’s precautionary ‘zero tolerance’ approach.¹⁰⁵ At the same time, however, the preamble of the Joint Interpretative Instrument on the CETA ‘reaffirms the commitments made with respect to precaution that [the European Union and its members states and Canada] have undertaken in international agreements’, hence relativizing the provisions requiring science-based evaluations. Reading the relevant CETA provisions in the context of the 2003 and 2007 Codex Working Principles for Risk Analysis – which recognize precaution as an inherent element of risk analysis – further neutralizes their potential to weaken the precautionary principle.

8.3.5 US-Tuna II

8.3.5.1 Overview

Following the GATT Panels’ rulings in Tuna Dolphin I and II, ‘the United States eventually allowed all tuna, no matter how it had been harvested, to be sold in its market’ while reserving the ‘dolphin-safe’ label for tuna harvested in a particular manner.¹⁰⁶ In 2008, Mexico requested consultations with the United States with regard to its ‘dolphin-safe’ labelling requirements, initiating the next phase of the long-running tuna dolphin dispute. This section will focus primarily on how the Appellate Body in US-Tuna II (Mexico) (not to be confused with Tuna Dolphin II, the 1994 dispute initiated by the EC against the USA concerning its secondary embargo against re-exported tuna) shed light on how the relationship between the TBT Agreement and international standards should be construed. Like the SPS Agreement, the TBT Agreement requires the harmonization of national regulations on the basis of international standards (Article 2.4). However, unlike the SPS Agreement, which provides a list of international standard-setting organizations (such as the Codex Alimentarius Commission), the TBT Agreement does not list any institutional/authoritative sources of international standards. The question of what counts as an international standardizing body is important as such a classification automatically triggers the harmonization obligation (i.e. pressure for entanglement) established in Article 2.4 of the TBT.¹⁰⁷

Mexico challenged the ‘dolphin-safe’ labelling requirements as inconsistent with inter alia the TBT Agreement.¹⁰⁸ Notably, the (state-administered) voluntary labelling scheme was considered to be a mandatory technical regulation, thus falling within the remit of the TBT Agreement.¹⁰⁹ As such, Mexico claimed that the US measure should have been based on the relevant international standard (according to Article 2.4), specifically the labelling scheme established under the Agreement on the International Dolphin Conservation Program (AIDCP). Notably, the AIDCP is only a regional organization to which only a subset of WTO members adheres. The Panel and the Appellate Body were tasked with determining whether the AIDCP labelling scheme constituted an international standard within the meaning of the TBT Agreement. Section 8.3.5.2 focuses on the Appellate Body’s rulings as the Panel’s findings are of little relevance to the question of legal entanglement.

8.3.5.2 Legal Entanglement/Appeal

For the purposes of the TBT Agreement, ‘international standards are those adopted by international standardizing bodies, meaning those with recognized activities in standardization that are open on a non-discriminatory basis to relevant bodies of at least all WTO Members’.¹¹⁰ While the Panel agreed with Mexico that the AIDCP was an international standardizing body,¹¹¹ the Appellate Body found that it did not fulfil the requirement of ‘openness’ because countries could only accede to the AIDCP by invitation.¹¹² As a result, the ‘AIDCP dolphin-safe definition and certification’ scheme did not constitute an international standard within the meaning of the TBT Agreement, and the USA was not required to base its domestic ‘dolphin-safe’ regulation upon it.

However, the Appellate Body did not stop there, clarifying further the meaning of ‘recognized’ activities in standardization. Considering that the resulting standards would apply to all WTO members, the Appellate Body found that recognition of international standardization activities had to go beyond the subset of WTO members participating in the standard-setting process, therefore ‘the larger the number of countries that participate in the development of a standard, the more likely it can be said that the respective body’s activities in standardization are “recognized”’.¹¹³ Moreover, ‘[e]vidence of a body’s compliance with procedural and substantive safeguards formulated by WTO Members would be relevant for the question of whether its standardizing activities are “recognized” for the purposes of the TBT Agreement’.¹¹⁴ In this context, the Appellate Body referred to a TBT Committee Decision from the year 2000 (‘the Decision’), which sets out guiding principles and procedures that standardizing bodies should observe when developing international standards, inter alia transparency, openness, impartiality and consensus.¹¹⁵ The Decision is significant as it spells these principles out in some detail, thus defining a relatively precise guidance for the entanglement of WTO law with standards from other sources. In an early case under the TBT Agreement, EC-Sardines, the Panel had dismissed the Decision as ‘a [mere] policy statement of preference and not the controlling provision in interpreting the expression “relevant international standard” as set out in Article 2.4 of the TBT Agreement’.¹¹⁶ In Tuna Dolphin II, the Appellate Body reversed this finding, stating that the Decision constituted a subsequent agreement of the parties in the meaning of Article 31(3)(a) VCLT and should be read together with the TBT.¹¹⁷

The weight that the Appellate Body gave to the Decision is significant because it directly clarifies several points of contention with regard to interpreting the TBT and how it relates to international standards. Principle three, for example, explicitly emphasizes consensus as a requirement for international standards in the TBT Agreement, even though an explanatory note to TBT Annex I.2 states that the TBT also covers documents not based on consensus. Notably, the Appellate Body in EC-Sardines had rejected the consensus requirement.¹¹⁸ The Appellate Body’s ruling in EC-Sardines had also implied a large measure of regulatory harmonization and ‘a very close fit or relationship between any technical regulation and the international standard, providing very little flexibility for regulatory diversity’.¹¹⁹ By contrast, the Appellate Body in US-Tuna II resisted ‘demands for regulatory harmonization through Article 2.4’ by emphasizing the criteria contained in the Decision relating to transparency and meaningful participation.¹²⁰ Thus, the Appellate Body effectively transformed the Decision into ‘a code of administrative procedure and practice for international standardization’ in the vein of global administrative law.¹²¹

Ultimately, the Appellate Body found that while the ‘dolphin-safe’ labelling provisions did not violate Article 2.4 of the TBT, they were inconsistent with Article 2.1 of the TBT because of a lack of even-handedness in the manner in which risks from different fishing techniques in different areas of the ocean were addressed.

8.3.5.3 Aftermath

In response to the Panel and the Appellate Body reports, the United States modified its dolphin-safe labelling requirements to comply with the Appellate Body’s ruling. However, the US measure continued to impose different certification and tracking and verification requirements depending on the fishery where the tuna was caught, with more burdensome requirements for tuna caught in the ETP. After several rounds of compliance proceedings, in which Mexico continued to challenge the United States’ measure due to discriminatory effects and with both parties repeatedly appealing, the Panel found that the US measure was not discriminatory and exonerated the USA from responsibility, a finding that the Appellate Body confirmed. The distinctions made in the United States’ measure (i.e. its discriminatory elements) were found to be calibrated to the different levels of risk posed by the practice of ‘setting’ on dolphins vis-à-vis other fishing methods. Thus, the detrimental impact caused by the US measure stemmed exclusively from a legitimate regulatory distinction and did not result in ‘treatment less favourable than that accorded to like products from the United States and other countries’ (consistency with Article 2.1 as well as with the chapeau of GATT Article XX).¹²² The final compliance report (with no finding of non-compliance) was circulated to members in December 2018, and adopted in January 2019, thereby concluding a dispute that had run on for almost thirty years.

8.4 Main Findings

8.4.1 Irritative Norm Conflict Over Time

The unadopted Panel report in Tuna Dolphin I set the stage for an antagonistic relationship between the GATT-based multilateral trading system and environmental trade measures for the achievement of global environmental objectives. Through repeated ‘irritations’ of trade law by environmental norms (through litigation in the WTO combined with external pressure), subsequent rulings by Panels and the WTO Appellate Body significantly corrected/recalibrated controversial aspects of the trade and environment interface, a process that is referred to here as irritative norm conflict over time.¹²³

The ‘Tuna Dolphin saga’ (in which Shrimp-Turtle constitutes a crucial building block) illustrates how irritative norm conflict over a period of almost thirty years allowed WTO judicial bodies to adjust elements of previous jurisprudence that had ‘gone too far’ in asserting trade objectives over members’ right to regulate. Although Tuna Dolphin I had found unilateral environmental trade measures with extraterritorial effects prima facie incapable of justification under the GATT, the Appellate Body in Shrimp-Turtle reversed this finding and clarified that GATT Article XX could, in fact, justify measures conditioning market access on environmental policies/PPMs abroad – as long as the measures do not amount to arbitrary or unjustifiable discrimination.¹²⁴ As a result, the ruling of the Appellate Body in Shrimp-Turtle was widely perceived as ‘a bold attempt to construct a broader societal vision of the WTO […] more sensitive to environmental concerns’.¹²⁵ Both the Shrimp-Turtle import requirements and the Tuna Dolphin/US-Tuna II labelling provisions were ultimately found to be consistent with WTO law; however, this was only after the United States had been subjected to several (costly) rounds of litigation and revisions of the law. Thus, while environmental norms have gained clout in the WTO, the fundamental objective of the WTO system – an open international economic system – is preserved through the meticulous enforcement of non-discrimination principles.

In EC-Hormones, EC-Biotech, and Canada/US-Continued Suspension – a series of distinct but interrelated disputes – what was being negotiated was inter alia the scope/applicability of the precautionary principle in the WTO context. Repeated irritations of international trade rules (and pressure from both within and outside of the WTO) led to a shift in the Appellate Body’s construction of precaution in the WTO and SPS context (Canada/US-Continued Suspension). While the tension between the precautionary principle (as codified in international environmental law) and the emphasis on scientific evidence and risk assessment in the SPS Agreement is not completely resolved, the role of precaution has been significantly strengthened (both in WTO law and outside of it – e.g. in the Codex Alimentarius Commission and in the Biosafety Protocol). The compromise around the role of precaution versus scientific risk assessment in CETA shows how WTO dispute settlement is not the only arena in which actors negotiate and navigate irritative norm conflict.

Finally, it is of note that the appeals mechanism in the WTO serves to process – and to accelerate – irritative norm conflict, allowing the Appellate Body to make (rapid) adjustments in the wake of contentious Panel findings, member state pressure and public protest. ‘Follow-up’ disputes prompted by issues around compliance or continued retaliation also provide the opportunity for rebalancing or ‘fine-tuning’ previous findings (e.g. Canada/US-Continued Suspension).

8.4.2 Legal Entanglement (and Mechanisms of Distancing)

The narrative of competing objectives between international trade law and international environmental law obscures the way in which the two bodies of norms are already entangled, going as far back as Tuna Dolphin I (in which both parties made legal claims relating to international environmental law). All participants in the GATT/WTO dispute settlement system regularly invoke outside bodies of norms to justify their claims. The judicial bodies themselves have on several occasions inquired into possible legal bases/defences for WTO-inconsistent measures, grounded in international environmental law (e.g. the Panel in Shrimp-Turtle), and routinely draw on international environmental norms in their legal reasoning. Notably, this is not always done to advance ‘trade-friendly’ arguments. WTO disciplines on non-discrimination are often brought into relation with international environmental norms that emphasize international cooperation (e.g. the Panel and Appellate Body in Shrimp-Turtle). Consequently, a closer relationship between international trade law and international environmental law will not necessarily result in more ‘environmentally friendly’ rulings. In this vein, some of the foundational critiques directed at the multilateral trading system can also be levelled against the international environmental regime, which has incorporated into its body of norms a bias against unilateral trade measures and has embraced the objective of liberalized trade (e.g. Principle 12 of the Rio Declaration). The two bodies of norms have always been more entangled (and mutually reinforcing) than generally assumed.

The reference to sustainable development in the Preamble of the WTO Agreement plays a central ‘entangling’ function at the interface between trade and environment, opening the door for outside environmental norms to enter WTO law through GATT Article XX (e.g. in Shrimp-Turtle). However, such forms of relationing between international trade law and outside bodies of norms are tenuous and remain contingent on the Panels’ and Appellate Body’s willingness to take outside norms into consideration on a case-by-case basis – essentially at their discretion. For instance, while the Appellate Body in Shrimp-Turtle had referred to outside treaty law not binding on all the disputing parties (the CBD), the Panel in EC-Biotech rejected the applicability of the Biosafety Protocol because the United States was not a party to it, and it could therefore not be considered ‘applicable’ in the relations between the parties according to Article 31(3)(c) of the Vienna Convention.

Resistance to legal entanglement comes in the form of strategies for distancing. In EC-Hormones, various techniques for creating distancing between the precautionary principle and obligations under the SPS Agreement were employed by the disputants, the Panel and the Appellate Body, including (1) relegating the precautionary principle to the realm of international environmental law while calling into question the status of the precautionary principle as a general principle of international law or a rule of customary international law; (2) restricting the applicability of the precautionary principle to its (partial) reflection in the SPS Agreement (Article 5.7) but rejecting its general applicability with regard to other provisions (namely Articles 5.1 and 5.2); and (3) pointing to the absence of a ‘clear textual directive’ that would allow an external norm to affect the interpretation of a provision in a WTO Agreement. Article 3.2 of the DSU requires treaty interpreters to refer to any relevant rules of international law applicable in the relations between the parties (according to Article 31(3)(c) of the Vienna Convention). As customary and general international law is always applicable between all parties to a dispute, relevant customary norms or general principles of international law will more likely be brought into relation with WTO law than external treaty norms which may not have been ratified by all WTO members/parties in a given dispute. It is therefore unsurprising that emphasizing the customary or general international law nature of an external norm or lack thereof is a dominant mechanism for creating either entanglement or distancing between WTO law and other bodies of norms.

8.4.3 Interface Norms in the GATT/WTO Context

Although the relationship between WTO law and international environmental law is not centrally regulated, both bodies of norms contain ‘interface norms’ that guide forms of relationing to the other ‘from the inside out’. In the WTO context, Article XX of the GATT can be viewed as a reception norm, allowing external norms to enter into GATT law. The specific environmental terms mentioned in GATT Article XX serve as ‘docking points’ for environmental norms to connect to. Once made, such linkages endure even as external legal orders change over time, in turn influencing the interpretation of ‘coupled’ WTO norms. Notably, the chapeau of GATT Article XX sets out substantive criteria for the application of environmental measures by conditioning ‘entry’ on non-discrimination/even-handedness and multilateralism/international consensus (see Section 8.4.4).

Not all reception norms are textually explicit, however. The concept of ‘legitimate regulatory distinction’ to justify discriminatory treatment was read into Article 2.1 of the TBT Agreement by the Appellate Body through successive case law (including US-Tuna II). It allows for balancing TBT non-discrimination objectives/obligations with legitimate regulatory interventions (such as for environmental protection) and thus fulfils the same purpose as GATT Article XX, including – conceivably – as a reception norm. Similarly, even though Article 5.7 of the SPS Agreement does not mention the term ‘precaution’ as such, the provision is generally viewed as a reflection of the precautionary principle and thus allows for external bodies of norms related to the precautionary principle to enter into WTO law.

The reference to sustainable development in the Preamble of the WTO Agreement connects trade rules to the vast body of international environmental law (and the emerging field of ‘international sustainable development law’). As a connecting norm, somewhat akin to the multi-sourced equivalent norms identified by some,¹²⁶ the reference to sustainable development provides a linkage function and enhances the discretion of Panels and the Appellate Body to interpret the environmental exceptions of Article XX expansively (e.g. the Appellate Body in Shrimp-Turtle construed a close relationship between WTO rules and international environmental norms according to preambular directive). In this way, interface norms can be mutually supportive.

While the WTO, on the whole, keeps substantive norms from other areas of international law at bay, it actively seeks entanglement with international standards. International standards attract linkages with WTO law more readily due to the WTO’s inherent harmonization dynamic. This is done through the TBT and SPS Agreements, which coordinate the relationship between international standards and WTO harmonization obligations through Articles 2.4 and 3.1 respectively. The contrasting approaches to entanglement are best illustrated in EC-Hormones, where the Panel and the Appellate Body interpreted the SPS Agreement in a way as to promote entanglement with Codex norms, while creating distancing with an external substantive norm originally developed in the context of international environmental law, namely the precautionary principle.

8.4.4 Substantive Dimensions for Interface Norms

An important factor influencing the porosity of WTO law is whether the external norm is of multilateral origin or constitutes an international standard. Environmental measures based on multilateral consensus have a higher likelihood of being taken into account in the WTO context than unilateral measures with little international support (although this is not guaranteed, see the Panel’s dismissal of the Biosafety Protocol in EC-Biotech). This way of reasoning is in line with the notion that the interface between international trade law and other norms of international law is governed primarily by the customary rules on treaty interpretation (as codified in the Vienna Convention) that require any relevant rules of international law applicable in the relations between the parties to be taken into account together with context. As opposed to external treaty norms, customary international law binds all states and will always be binding on parties in a given trade dispute (no matter the constellation). It follows that linkages with external norms are more easily produced if the latter are considered general or customary international law (see Section 8.4.2), as well as when there are ‘docking norms’ in the text that can provide the Panel or the Appellate Body with a ‘textual directive’ – that is, a mandate – for linkage.

Further, entanglement between WTO law and international standards is explicitly encouraged through the TBT Agreement and the SPS Agreement, which promote the harmonization of national regulations on the basis of international standards. The substantive dimensions of entanglement between WTO law and international standards is gradually being ‘fleshed out’ with additional (still contested) criteria such as the level of international support for the adoption of the norm in question (consensus, broad membership, inclusiveness/participation). For example, in EC-Hormones the EC did not recognize a specific set of Codex standards as being ‘international standards’ due to the narrow margin by which it was adopted. The EC thus expressed expectations about the substantive dimensions of the interface norm contained in the SPS Agreement: international standards should only be taken into account if they are considered legitimate, as indicated by broad acceptance during adoption (see Section 8.3.3.2). While the Panel in EC-Hormones rejected the EC’s reasoning, the Appellate Body in US-Tuna II gave significant weight to a 2000 TBT Committee Decision, which contains a set of substantive criteria that qualify the appropriateness of international standards from the perspective of the WTO (specifically the TBT Agreement), including transparency, openness, consensus and effectiveness. In this regard, the Appellate Body also indicated that the number of countries participating in a standard-setting process relative to the total number of WTO members is relevant for the entry of international standards into WTO law via TBT Article 2.4.

8.5 Conclusion

This chapter addressed horizontal ways of relationing between international trade law and international environmental law, and explored how these different legalities respond to each other and manage tensions without subordination. The findings show how repeated ‘irritations’ of trade law through environmental norms, expressed in WTO dispute settlement and combined with external political pressure (including by building and harnessing pressure in other multilateral fora), can prompt ‘recalibrations’ at the interface of WTO law and encourage the clarification of the relationship over time. What emerges from this analysis is a kind of modified ‘island’ view of the WTO in relation to other bodies of norms. Interface norms allow for the contingent adaptation of ‘foreign’ rules into WTO law while broader systemic connections are resisted through mechanisms of distancing. Thereby new developments in international law can be reflected in jurisprudential interpretations without compromising the stated objective of ensuring the ‘security and predictability of the multilateral framework for trade’. To this end, the WTO regime actively encourages legal entanglement with international standards because harmonization helps facilitate trade. Ultimately, this chapter demonstrates how the WTO has successfully negotiated legal entanglement on its own terms and in service to the regime’s overarching goal of free trade.