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HUMAN RIGHTS IN INTERNATIONAL INVESTMENT LAW: THE 2016 MOROCCO–NIGERIA BILATERAL INVESTMENT TREATY

Published online by Cambridge University Press:  23 May 2019

Niccolò Zugliani
Niccolò Zugliani*
Affiliation:
Doctoral Candidate at the Law Department of the University of Verona, [email protected]
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Abstract

The 2016 Morocco–Nigeria bilateral investment treaty (BIT) stands out from other such treaties because of its innovative human rights approach to the protection and promotion of foreign direct investment. Human rights permeate its approach to the regulation of investment in a manner which is most unusual in international investment agreements (IIAs). As a result, this is the most socially-responsible BIT currently concluded. Although it remains exceptional within the investment-treaty framework, the treaty reflects African initiatives to ensure that the next generation of BITs encourages more responsible investments. As such, it shows that human rights-compliant investment treaties can find fertile ground in developing African countries and it sets an example for current and future negotiations aimed at fostering respect for human rights in investment activities.

Keywords

human rightsinternational investmentsinvestor's obligationssustainable developmentenvironmental provisions
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 68 , Issue 3 , July 2019 , pp. 761 - 770
Copyright
Copyright © British Institute of International and Comparative Law 2019 

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References

1 See eg Dupuy, PM, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in Dupuy, PM et al. (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press 2009) 45–62CrossRefGoogle Scholar; Karamanian, SL, ‘Human Rights Dimensions of Investment Law’ in De Wet, E and Vidmar, J (eds), Hierarchy in International Law (Oxford University Press 2012) 236–71Google Scholar.

2 See eg Spyridon Roussalis v Romania, ICSID Case No ARB/06/1, Award (7 December 2011) where the claimant based its claim on, among other grounds, art 1 of the First Additional Protocol to the European Convention on Human Right; Hesham Talaat M. Al-Warraq v Republic of Indonesia, UNCITRAL, Final Award (15 December 2014), where the investor argued that human rights were included in the term ‘basic rights’ contained in the relevant BIT.

3 See Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic (Urbaser v Argentine Republic), ICSID Case No ARB/07/26 (8 December 2016).

4 See UNCTAD, World Investment Report 2015: Reforming International Investment Governance (United Nations 2015) 120–73.

5 (Economic Community of West African States) Supplementary Act A/Sa.3/12/08 Adopting Community Rules on Investment and the Modalities for their implementation with ECOWAS (signed on 19 December 2008, entered into force on 19 January 2009).

6 Southern African Development Community.

7 See UNGA, ‘Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie’ UN Doc A/HRC/17/31 (21 March 2011).

8 African Union, ‘Draft Pan-African Investment Code’, AU/STC/FMEPI/EXP/18(II) (26 March 2016).

9 Reciprocal Investment Promotion and Protection Agreement between the Government of the Kingdom of Morocco and the Government of the Federal Republic of Nigeria (Morocco–Nigeria BIT) (adopted on 3 December 2016). The treaty has been ratified by the Moroccan Parliament on 30 August 2017 and is not yet in force, pending the ratification by Nigeria.

10 See eg T Gazzini, ‘Nigeria and Morocco Move Towards a ‘‘New Generation’’ of Bilateral Investment Treaties’ (EJIL: Talk!, 8 May 2017) <https://www.ejiltalk.org/nigeria-and-morocco-move-towards-a-new-generation-of-bilateral-investment-treaties/>.

11 N Briercliffe and O Owczarek, ‘Human-Rights-Based Claims by States and ‘‘New-Generation’’ International Investment Agreements’ (Kluwer Arbitration Blog, 1 August 2018) <http://arbitrationblog.kluwerarbitration.com/2018/08/01/human-rights-based-claims-by-states-and-new-generation-international-investment-agreements/>.

12 Morocco–Nigeria BIT (n 9) Preamble.

13 Vienna Convention on the Law of Treaties (adopted on 23 May 1969, entered into force on 27 January 1980) 1155 UNTS 33 (VCLT) art 31(1).

14 Although since the early 2000s IIAs have started to include more detailed substantive provisions.

15 See eg the relevance of preambles in the inclusion of the stability of the host State's regulatory framework within the protection provided by the fair and equitable treatment (FET) standard: CMS Gas Transmission Company v Argentine Republic, ICSID Case No ARB/01/08, Award (12 May 2005) para 247; Occidental Exploration and Production Company v The Republic of Ecuador, LCIA Case No UN 3467, Final Award (1 July 2004) para 183.

16 See eg Austria–Kyrgyzstan BIT (2016) Preamble.

17 See eg Canada–EU Comprehensive Economic and Trade Agreement (2016) Preamble.

18 The preamble of the SADC Model BIT (2012) presents an identical phrasing to that of the Morocco–Nigeria BIT. See also Austria Model BIT (2008), Preamble; Draft Norway Model BIT (201) Preamble.

19 See eg EU–Moldova Association Agreement (2014) Preamble: ‘committed to all the principles and provisions of the Charter of the United Nations, the Organisation for Security and Cooperation in Europe (OSCE), in particular of the Helsinki Final Act of 1975 of the Conference on Security and Cooperation in Europe and the concluding documents of the Madrid and Vienna Conferences of 1991 and 1992 respectively, and the Charter of Paris for a New Europe of 1990, as well as the United Nations Universal Declaration of Human Rights of 1948 and the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950’.

20 See eg Benin–Canada BIT (2013) art 16: ‘Each Contracting Party should encourage enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate internationally recognized standards of corporate social responsibility …’.

21 See eg Slovakia–Iran BIT (2014) art 10(1).

22 See eg recent BITs concluded by Japan. As a matter of example, Japan–Israel BIT (2017) art 20: ‘Each Contracting Party recognizes that it is inappropriate to encourage investment activities … by relaxing its domestic health, safety, environmental and labor standards legislation.’

23 See eg EFTA–Montenegro FTA (2011) art 34(2); see also Islamic Republic of Iran–Slovakia BIT (2016) art 10(1).

24 See eg EFTA (European Free Trade Association)–Georgia FTA (2016) art 10(4).

25 Appendix 3 (n 5) art 21(5): ‘All Member States shall ensure that their laws, policies and actions are consistent with the international human rights agreements to which they are a Party and at a minimum, with the list of human rights obligations and agreements already adopted.’

26 Morocco–Nigeria BIT (n 9), art 27(1): ‘the Investor concerned may submit at his preference the dispute settlement to’.

27 For the influence that human rights can have on the MST, see: Paparinskis, M, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press 2013) 172ffCrossRefGoogle Scholar.

28 Draft PAIC (n 8) art 24.

29 The Model BIT of the SADC (2012) art 15(1): ‘Investors and their investments have a duty to respect human rights in the workplace and in the community and State in which they are located …’.

30 See eg the India Model BIT (2016) art 12 that provides that investors and their investments shall be subject to and comply with the law of the host State, including the law relating to human rights.

31 See T Buergenthal, ‘Human Rights’ (Max Planck Encyclopedia of Public International Law, March 2007) <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e810>; on the third-party effect of human rights instruments, see also E Bjorge, ‘Human Rights, Treaties, Third-Party Effect’ (Max Planck Encyclopedia of Public International Law, May 2011) <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e879>.

32 Morocco–Nigeria BIT (n 9) art 27.

33 ECOWAS Supplementary Act (n 5) art 18(3): ‘Where a host Member State or home Member State believes that an investor or its investment has … persistently failed to comply with its obligations … either the host Member State or the home Member State may initiate proceedings before a tribunal established by this Supplementary Act’.

34 See SADC Model BIT (2012) art 19(2) and the Draft PAIC (2016) (n 8) art 43(2).

35 See UNCITRAL Rules on Transparency in Treaty-based Investor–State Arbitration of 2013 (2013) art 21; Convention on the Settlement of Investment Disputes between States and Nationals of Other States (adopted on 18 March 1965, entered into force on 14 October 1966) 575 UNTS 159 (ICSID Convention) art 46.

36 In the framework of ICSID arbitration, the view of authors who deem the sole consent to ICSID sufficient to imply the investor's consent to counterclaims is opposed by those who claim that consent must be determined through instruments external to the Convention. The first view can be found, among others, in Spyridon Roussalis v Romania (n 2) Declaration of W. Michael Reisman; Bravin, MN and Kaplan, AB, ‘Arbitrating Closely Related Counterclaims at ICSID in the Wake of Spyridon Roussalis v. Romania’ (2012) 9 Transnational Dispute ManagementGoogle Scholar. For the second approach, see, among others, Atanasova, D et al. , ‘The Legal Framework for Counterclaims in Investment Treaty Arbitration’ (2014) 31 Journal of International Arbitration 357Google Scholar.

37 See Antoine Goetz & Others and SA Affinage des Metaux v Republic of Burundi No. ICSID Case No ARB/01/2, Award (21 June 2012).

38 Morocco–Nigeria BIT (n 9) art 26.

39 Morocco–Nigeria BIT (n 9) Preamble: ‘Recognizing the important contribution investment can make to the sustainable development of the state parties …’, ‘Seeking to promote, encourage and increase investment opportunities that enhance sustainable development …’, ‘Understanding that sustainable development requires the fulfilment of the economic, social and environmental pillars that are embedded within the concept’.

40 Mauritius–Egypt BIT (2014) art 1: ‘every kind of asset that has the characteristics of an investment, such as the commitment of capital or other resources, the expectation of gain or profit, the assumption of risk, the contribution to sustainable development …’.

41 See eg UNGA ‘Report of the United Nations Conference on Environment and Development’ Annex I, (Rio Declaration on Environment and Development) UN Doc A/CONF.151/26 (12 August 1992) Principles 1, 4 and 5; UN Commission on the Status of Women, Beijing Declaration and Platform of Action, endorsed by UNGA ‘Follow-up to the Fourth World Conference on Women and Full Implementation of the Beijing Declaration and the Platform for Action’ UN Doc A/RES/50/203 (22 December 1995) para 36.

42 Morocco–Nigeria BIT (n 9) art 13(4).

43 The principle was already contained in the Rio Declaration on Environment and (n 36) Principle 15, which provided that ‘in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.

44 Morocco–Nigeria BIT (n 9) art 18(4).

45 Source: Investment Policy Hub <https://investmentpolicyhub.unctad.org/IIA/mappedContent#iiaInner Menu>.

46 A Boyle, ‘Environment and Human Rights’ (Max Planck Encyclopedia of Public International Law, April 2009) <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1948>.

47 See UNGA, ‘Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie’ UN Doc A/HRC/17/31 (21 March 2011) paras 11–13.

48 Ratification by the Nigerian Parliament is, however, still pending.