No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 28 October 2021
Individuals have long occupied a precarious position within international law. Historically, conceived as the relation between states, international law rarely saw a need to consider individual claims; it was, instead, the role of states to bring claims on behalf of their nationals. As international law has become increasingly fragmented, however, globalization has thrust the individual onto the international legal plane.
Within this landscape, we briefly consider individuals’ claims across three separate international regimes: (i) the International Court of Justice, (ii) investment treaties, and (iii) the World Trade Organization. We find that barriers for individuals’ recognition as rights holders persist across each. First, jurisdictional barriers remain fundamentally problematic for recognizing individuals’ claims. Second, the longstanding focus on treaty interpretation techniques has yielded little, if any, demonstrable impact on recognizing individuals’ rights. Third, mere reliance on reflecting human rights values, rather than specific and concrete structural reforms, has proven incompatible with realizing individuals’ rights within these three systems.
Individuals qua rights holders have, rather acutely, recently experienced deeply troubling human rights violations on several fronts. Fundamentally, international law must protect human rights. This moment invites us to consider the systems on the international legal plane for individuals to seek such remedy and what barriers must be addressed to further such efforts.
The views expressed are personal to both authors and do not reflect the views of any of their institutional affiliations. Both authors reserve their right to change their position.
1 L. Dingle, ‘A Legal Journey Through the UN, Academia, and the ICJ: Conversations with Dame Rosalyn Higgins DBE, JSD, FBA, QC’, (2015) 15 Legal Information Management 86, at 90.
2 Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee 16 June–24 July 1920 with Annexes (1920), at 205 (‘It sometimes happens that a private individual who has made a contract with a State, finds it impossible to obtain justice against it on account of a species of privileged right of sovereignty recognised by the legislation and jurisprudence of some countries …’).
3 Ahmadou Sadia Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010, [2010] ICJ Rep. 639.
4 Statute of the International Court of Justice, annexed to the United Nations Charter, San Francisco, 26 June 1945 (‘Statute of the ICJ’), Art. 34(1).
5 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, [2007] ICJ Rep. 582, para. 39 (Diallo (Preliminary Objections)).
6 See Diallo case, supra note 3.
7 J. Dugard, Articles on Diplomatic Protection, 2006, available at legal.un.org/avl/ha/adp/adp.html, para. 2 (‘In 1758 the Swiss jurist Emmerich Vattel expounded the fundamental principle of diplomatic protection when he wrote that “Whoever ill- treats a citizen indirectly injures the State, which must protect that citizen”.’).
8 E. Vattel, ‘The Law of Nations, or the Principles of Natural Law’, in Classics of International Law (1916) (translated by C. Eenwich), at 136.
9 The Mavrommatis Palestine Concessions, Preliminary Objections, Judgment of 30 August 1924, PCIJ Series A No. 2, at 12.
10 Ibid.
11 Ibid. (‘By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law.’).
12 Ibid. (‘Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’).
13 LaGrand (Germany v. United States of America), Judgment of 27 June 2001, [2001] ICJ Rep., at 466.
14 1963 Vienna Convention on Consular Relations, (entered into force 19 March 1967) 596 UNTS 261, Art. 36(1).
15 1963 Optional Protocol concerning the Compulsory Settlement of Disputes (entered into force 19 March 1967) 596 UNTS, Art. 1 (‘Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.’).
16 See LaGrand case, supra note 13, at 483 (‘Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty.’).
17 A. Kjeldgaard-Pedersen, ‘The International Court of Justice and the Individual’, (2019) 169 iCourts Working Paper Series, at 16.
18 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, [2004] ICJ Rep., at 12.
19 Ibid., para. 40.
20 Ibid.
21 Ibid.
22 Application of the International Convention on the Elimination of All Forms of Discrimination (Georgia v. Russian Federation), Judgment on Preliminary Objections of 1 April 2011, ICJ Rep. 2011, at 70 (Judge Cançado Trindade, Dissenting Opinion).
23 Ibid., paras. 144, 194.
24 Ibid. (‘The present Judgment contains only in passim references to the sufferings endured by the victimized population, such as the reference to an agreement concluded by Georgia and the Russian Federation, as early as on 24 June 1992, which stated in the preamble that the parties were striving for “the immediate cessation of the bloodshed” (para. 146).’).
25 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment of 8 November 2019, ICJ Rep. 2019, at 558 (Judge Cançado Trindade, Separate Opinion), (‘Tertius: Human rights conventions, like CERD, go beyond the outdated inter-State outlook, ascribing a central position to the individual victims, rather than to their States.’).
26 Ibid.
27 Ibid.
28 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, ICJ Rep. 2018, at 406, paras. 51–2.
29 C. Reiner and C. Schreuer, ‘Human Rights and International Investment Arbitration’, in P. Dupuy, E. Petersmann and F. Francioni (eds.), Human Rights in International Investment Law and Arbitration (2009), 82, at 83.
30 See T. Meshel, ‘Human Rights in Investor–State Arbitration: The Human Right to Water and Beyond’, (2015) 6 Journal of International Dispute Settlement 277, at 280 (‘It seems, therefore, that any limits placed on an arbitral tribunal’s jurisdiction in an investment treaty or agreement do not necessarily “imply that the tribunal cannot, as a matter of principle, take into consideration human rights issues”.’).
31 Spyridon Roussalis v. Romania, ICSID Case No ARB/06/1, Award, 7 December 2011.
32 Ibid., para. 869 (‘… the Tribunal in its majority considers that the references made in the text of Article 9(1) of the BIT to “disputes … concerning an obligation of the latter” undoubtedly limit jurisdiction to claims brought by investors about obligations of the host State. Accordingly, the BIT does not provide for counterclaims to be introduced by the host state in relation to obligations of the investor.’).
33 See Reiner and Schreuer, supra note 29, at 84 (‘If and to the extent that the human rights violation affects the investment, it will become a dispute “in respect of” the investment and must hence be arbitrable.’).
34 Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana, UNCITRAL, Award on Jurisdiction and Liability, 27 October 1989.
35 Ibid., para. 61.
36 See, e.g., Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016.
37 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Art. 25(2)(a), 18 March 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159, Art. 46.
38 ICSID Rules of Procedure for Arbitration Proceedings, Rule 40(1) (‘Except as the parties otherwise agree, a party may present an incidental or additional claim or counter-claim arising directly out of the subject-matter of the dispute, provided that such ancillary claim is within the scope of the consent of the parties and is otherwise within the jurisdiction of the Centre.’).
39 See Urbaser v. The Argentine Republic case, supra note 36, para. 1210 (‘… the enforcement of the human right to water represents an obligation to perform. Such obligation is imposed upon States. It cannot be imposed on any company knowledgeable in the field of provision of water and sanitation services.’).
40 Ibid.
41 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31(2).
42 Organisation for Economic Co-operation and Development, International Investment Perspectives, 2006, at 145, available at www.oecd.org/investment/internationalinvestmentagreements/40072428.pdf. (‘Investment treaties’ preambles normally serve the purpose of outlining the objectives pursued by the substantive and procedural provisions of the agreements. This is an important function since they provide a “context” for interpreting individual treaty clauses, notably by arbitral tribunals to investment disputes.’).
43 Saluka Investments B.V. v. The Czech Republic, UNCITRAL, Partial Award, 17 March 2006.
44 Ibid., para. 298 (‘The preamble thus links the “fair and equitable treatment” standard directly to the stimulation of foreign investments and to the economic development of both Contracting Parties.’).
45 F. G. Santacroce, ‘The Applicability of Human Rights Law in International Investment Disputes’, (2019) 34 ICSID Review 136, at 144 (‘The first type may be found in the preamble of the relevant instrument … This is by far the most common way of referring to human rights in international investment agreements.’).
46 See, e.g., Free Trade Agreement between the European Union and the Republic of Singapore, (signed 15 October 2018, not in force). (‘Reaffirming their commitment to the Charter of the United Nations … and having regard to the principles articulated in The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948’); Free Trade Agreement between Canada and Republic of Colombia, (signed 21 November 2008, entered into force 15 August 2011); Agreement between the Swiss Confederation and Georgia on the Promotion and Reciprocal Protection of Investments, (signed 3 June 2014, entered into force 17 April 2015).
47 See Santacroce, supra note 45, at 144.
48 The Treaty Between the Government of the United States of America and the Government of the Republic of Albania Concerning the Encouragement and Reciprocal Protection of Investment (1995), Preamble; Agreement between the Government of the Republic of Austria and the Government of the Republic of Azerbaijan for the Promotion and Protection of Investments (2000) (signed 11 January 1995, entered into force 4 January 1998), Preamble.
49 See Santacroce, supra note 45, at 144 (‘But references to human rights may also be contained in the provisions of the so called operative part of the investment treaty.’).
50 Reciprocal Investment Promotion and Protection Agreement between the Government of the Kingdom of Morocco and the Government of the Federal Republic of Nigeria (signed 3 December 2016, not in force), Art. 18(2) (‘Investors and investments shall uphold human rights in the host state.’).
51 2017 Intra-MERCOSUR Cooperation and Facilitation Investment Protocol, Art. 14(2)(b).
52 See Morocco-Nigeria IIA, supra note 50, Art. 18(2).
53 Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, (2016), Annex 8-A (3) (‘For greater certainty, except in the rare circumstance when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.’).
54 Data collected from the IIA Navigator. To find a list of treaties containing any clause, such as a clause on ‘Health and Environment’ in the provisions of IIAs, the appropriate search option ‘Health and environment (any mention in the text, except in the preamble)’ was selected. Further, the search queries of ‘Yes’ and ‘Inconclusive’ were selected from the available query options. The search was not restricted to any separate time period. Data updated as of May 2020, available at investmentpolicy.unctad.org/international-investment-agreements/iia-mapping.
55 Agreement for the Promotion and Reciprocal Protection of Investment between the Government of the Republic of Austria and the Government of the Republic of Kazakhstan (signed 12 January 2010, entered into force 21 December 2012) (‘Article 4 Investment and Environment: The Parties do not encourage an investment by weakening the requirements of its national legislation in the field of environment.’).
56 Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey, ICSID Case No. ARB/11/28, Decision on Annulment, 30 December 2015, para. 92 (‘Provisions in human rights instruments dealing with the right to a fair trial and any judicial practice thereto are relevant to the interpretation of the concept of a fundamental rule of procedure as used in Article 52(1)(d) of the ICSID Convention. This is not to add obligations extraneous to the ICSID Convention. Rather, resort to authorities stemming from the field of human rights for this purpose is a legitimate method of treaty interpretation.’).
57 See Urbaser v. The Argentine Republic, supra note 36, para. 1200 (‘The Tribunal further retains that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties of May 23, 1969, and that Article 31 §3 (c) of that Treaty indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties.” The BIT cannot be interpreted and applied in a vacuum. The Tribunal must certainly be mindful of the BIT’s special purpose as a Treaty promoting foreign investments, but it cannot do so without taking the relevant rules of international law into account. The BIT has to be construed in harmony with other rules of international law of which it forms part, including those related to human rights.’).
58 See Santacroce, supra note 45, at 149 (‘Against this background, systemic integration certainly makes human rights norms applicable as interpretative tools in investment treaty disputes. In practice, because most investment treaties contain broadly framed and open-textured provisions, resort to systemic integration is particularly valuable.’).
59 Hesham T. M. Al Warraq v. Republic of Indonesia, UNCITRAL, Final Award, 15 December 2014.
60 Ibid., para. 177 (‘The Claimant argues that by virtue of Article 31.3(c) of the Vienna Convention on the Law of Treaties (“VCLT”), the basic rights and guarantees accorded to the Claimant by virtue of Article 10.1 of the OIC Agreement must be interpreted to include basic international law norms and rights.’).
61 Ibid., paras. 560, 561 (‘When a State becomes a party to the ICCPR by ratification of the Covenant it enters into a set of relationships with the individuals within its jurisdiction, and with other State parties … As a consequence, the State Party undertakes to refrain from doing anything injurious to human rights and do everything to ensure respect for human rights of the individual person concerned. It is the failure to honour this obligation that amounts to a violation of the principle of good faith.’).
62 Ibid., para. 574 (‘Various international human rights bodies consider that the presumption of innocence is violated whenever public authorities or representatives of government make public statements, which prejudge the outcome of particular criminal proceedings. As the Inter-American Court of Human Rights (“IACHR”) stated: …’).
63 Ibid., para. 575 (‘The European Court of Human Rights (“ECHR”) applying Art. 6(2) of the European Convention on Human Rights, also held that the statements made …’).
64 See Santacroce, supra note 45, at 138 (‘… host States may rely on international human rights law also to advance human rights counterclaims where the investor has failed to conduct its business properly in critical sectors for the human rights of the host State’s population’.).
65 Impregilo S.p.A. v. Argentine Republic, ICSID Case No. Arb/07/17, Award, 21 June 2011.
66 Ibid., para. 228 (‘… the regulatory powers of the State were particularly important in order to guarantee its inhabitants the human right to water’.).
67 Ibid., para. 230 (‘… the obligations assumed by the Argentine Republic as regards investments do not prevail over the obligations assumed in treaties on human rights. Therefore, the obligations arising from the BIT must not be construed separately but in accordance with the rules on protection of human rights. Treaties on human rights providing for the human right to water must be especially taken into account in this case’.).
68 Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016.
69 Ibid., para. 399 (‘The responsibility for public health measures rests with the government and investment tribunals should pay great deference to governmental judgments of national needs in matters such as the protection of public health.’).
70 J. P. Muniz, K. A. N. Duggal and L. A. S. Peretti, ‘The New Brazilian BIT on Cooperation and Facilitation of Investments: A New Approach in Times of Change’, (2017) 32 ICSID Review 404, at 405 (‘This is because Brazil, as the world’s ninth largest economy, remained a major investment destination despite not participating in the international investment regime. Indeed, while Brazil had signed BITs in the past, none of these were ratified by Brazil, so they never came into force.’).
71 Ibid.
72 Cooperation and Facilitation Investment Agreement between the Federative Republic of Brazil and ___, 2015 Part III – ‘Institutional Governance and Dispute Prevention’.
73 See The Mavrommatis Palestine Concessions case, supra note 9.
74 See supra Section 2.1.
75 See United Nations Commission on International Trade, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fourth session (Working Group III Report, 2017).
76 International Centre for Settlement of Investment Disputes, Proposal for Amendment of the ICSID Rules, Working Paper #4(2020).
77 ISIID, ‘Investment Court System Proposed by European Commission’, Investment Treaty News, 26 November 2015, available at www.iisd.org/itn/2015/11/26/investment-court-system-proposed-by-european-commission/.
78 The Hague Rules On Business and Human Rights Arbitration, December 2019, available at www.cilc.nl/cms/wp-content/uploads/2019/12/The-Hague-Rules-on-Business-and-Human-Rights-Arbitration_CILC-digital-version.pdf.
79 Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UN Doc. A/HRC/RES/26/9 (2014).
80 D. Chow, ‘China and Human Rights in International Trade’, (2012) 9 South Carolina Journal of International Law and Business 13, at 21–2.
81 S. Joseph, ‘Relationship Between the WTO and International Human Rights Law’, in S. Joseph (ed.), Blame it on the WTO?: A Human Rights Critique (2011), 32, at 36.
82 E.g., 1947 General Agreement on Tariffs and Trade, 61 Stat. A-11, T.I.A.S. 1700, 55 UNTS 194, Preamble; 1994 Marrakech Agreement Establishing the World Trade Organization, Ann. 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights, 33 I.L.M. 81, Art. 7.
83 H. Hestermeyer, ‘International Human Rights Law and Dispute Settlement in the World Trade Organization’, in M. Scheinin (ed.), Human Rights Norms in ‘Other’ International Courts (2019), 199, at 224.
84 Cf. C. Dommen, ‘Raising Human Rights Concerns in the World Trade Organization: Actors, Processes and Possible Strategies’, (2002) 24 Human Rights Quarterly 1, at 13–15.
85 P. Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’, (2002) 13 European Journal of International Law 815, at 826.
86 See Joseph, supra note 81, at 38.
87 See TRIPS, supra note 82, Art. 4.
88 Ibid., Art. 3.
89 See 1966 International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 26.
90 See Joseph, supra note 81, at 39.
91 See, e.g., International Covenant on Civil and Political Rights, supra note 89, Art. 9.
92 See Hestermeyer, supra note 83, at 205, 207.
93 1994 Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Agreement, Ann. 2, 33 I.L.M. 1226, Arts. 1.1, 3.2.
94 Ibid., Ann. 1.
95 See Hestermeyer, supra note 83, at 207.
96 See Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, 6 March 2006, para. 56.
97 G. Marceau, ‘WTO Dispute Settlement and Human Rights’, (2002) 13 European Journal of International Law 753, at 763.
98 Supra note 93, Art. 19(1).
99 See B. Simma, ‘Self-Contained Regimes’, (1985) 16 Netherlands Yearbook of International Law 111, at 117.
100 P. Dupuy, ‘A Doctrinal Debate in the Globalisation Era: On the Fragmentation of International Law’, (2007) 1 European Journal of Legal Studies 25, at 27.
101 See US – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, at 17.
102 Supra note 93, Arts. 3.2, 7.1, 7.2, 19.2.
103 R. Harris and G. Moon, ‘GATT Article XX and Human Rights: What Do We Know From the First 20 Years?’, (2015) 16 Melbourne Journal of International Law 432, at 441.
104 See Vienna Convention on the Law of Treaties, supra note 41, Art. 31(3)(c).
105 US – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, 11 March 2011, para. 308.
106 EC – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, 29 September 2006, para. 7.70.
107 C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’, (2005) 54 International and Comparative Law Quarterly (2005) 279, at 315.
108 B. McGrady, ‘Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC – Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’, (2008) 42 Journal of World Trade 589, at 594.
109 See Vienna Convention on the Law of Treaties, supra note 41, Art. 2(1)(g) (‘a State which has consented to be bound by the treaty and for which the treaty is in force’).
110 Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682, (2006), para. 471.
111 See EC and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, 18 May 2011, para. 845 (‘In a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate balance must be struck between, on the one hand, taking due account of an individual WTO Member’s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members.’).
112 R. Gardiner, Treaty Interpretation (2015), at 320; cf. Hestermeyer, supra note 83, at 212.
113 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, Separate Opinion of Judge Higgins, [2003] ICJ Rep. 161, para. 49.
114 See Hestermeyer, supra note 83, at 216; Harris and Moon, supra note 103, at 434.
115 1966 International Covenant on Economic, Social and Cultural Rights, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 993 UNTS 3, Art. 12.
116 See, e.g., EC – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R and WT/DS401/R, 25 November 2013, para. 7.292.
117 Cf. Hestermeyer, supra note 83, at 218.
118 See GATT, supra note 82, Art. XX(a).
119 Ibid., Art. XX(b).
120 US – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, 7 April 2005, para. 6.465.
121 See EC – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014, para. 5.169.
122 F. Baetens, ‘Invoking Human Rights: A Useful Line of Attack or a Defence Tool for States in Investor-State Dispute Settlement?’, in M. Scheinin (ed.), Human Rights Norms in ‘Other’ International Courts (2019), 227, at 249–50.
123 See GATT, supra note 82, Art. XX.
124 R. Brewster, ‘Can International Trade Law Recover? WTO Dispute Settlement: Can We Go Back Again?’, (2019) 113 American Journal of International Law Unbound 61.