The Human Right to Property in International Investment Law
Author | Frederic Bertrand |
Position | completed his B.C.L./LL.B. degree with a Major Concentration in International Human Rights & Development at McGill University in 2018 |
Pages | 42-75 |
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ARTICLE
THE HUMAN RIGHT TO PROPERTY IN
INTERNATIONAL INVESTMENT LAW
Frédéric Bertrand *
CITED: (2019) 24 Appeal 45
ABSTRACT
is article seeks to address part of t he “legitimacy cri sis” currently underway in t he
international investment regi me. It identies shortcomings in the jurisprudent ial coherence
of investor-state arbitral awards i n expropriation cases where the state defends its act ions
by invoking human rig hts considerations. is ar ticle suggests the interpretation of the
scope and charac teristics of investors’ property rights under inves tment law—as well as the
property rights of non-part ies to investor-state disputes, such as the ances tral land rights of
Indigenous peoples—s hould be in line with the meaning of propert y rights under human
rights law. is approach has the met hodological benet of incorporating to investment
law human rights law t heory’s, methods of interpretation and jurispr udence— which
favours a balancing a ct and proportionality analy sis, and provides a margin of appreciation
to state authorities when addressi ng multiple human rights considerations. It provides
consistent analy tical tools to overcome the diculties of broad ly stating that human right s
should apply to investment law, which can be insu cient as a guide to interpretation in
the context of specic disputes .
* Frédéric Bertrand comp leted his B.C.L./LL .B. degree with a Major Concentrat ion in International
Human Rights & Developme nt at McGill University in 2018. He sincerely thank s Professor
Frédéric Mégret, Profess or Ana Maria Daza Vargas, Didier Paquin an d the editors of Appeal for
their thoughtful comm ents on earlier drafts of this pa per. He is currently clerking at the Cour t
of Appeal of Quebec, th ough the opinions he expresses in this a rticle are his, and they do not
represent the opinions of th e Court—or reect his work at the Co urt.
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TABLE OF CONTENTS
ABSTRACT ........................................................45
INTRODUCTION..................................................46
I. INVESTMENT ARBITRATION AND HUMAN RIGHTS: IMBALANCE
AND INCONSISTENCIES ...........................................51
A. Rejection of Human Rights Arguments ..............................51
i. e Pezold and Border Timbers Cases .............................52
ii. e Glamis Case.............................................53
B. Human Rights-Friendly Approach..................................55
C. Inconsistencies in Expropriation Cases...............................57
i. Police Power, Margin of Appreciation, and Proportionality ............57
ii. Standard of Compensation.....................................61
D. e Way Forward...............................................62
II. THE HUMAN RIGHT TO PROPERTY IN INTERNATIONAL LAW .....63
A. Global International Human Rights Law.............................63
i. e Universal Declaration of Human Rights .......................64
ii. e Two Covenants ..........................................66
iii. Other Global Human Rights Instruments in Relation to Property.......67
B. e Right to Property in Regional Human Rights Mechanisms ............68
i. e European Context........................................68
ii. American Regional Human Rights Mechanisms.....................72
C. Other Sources of International Law on the Human Right to Property . . . . . . . 73
III. POTENTIAL CONTRIBUTIONS OF THE HUMAN RIGHT TO
PROPERTY TO INTERNATIONAL INVESTMENT LAW .................74
A. A Balanced Approach to Expropriation ..............................74
B. Case Study: e Constitutional Protection of Indigenous Rights in Canada...76
CONCLUSION ....................................................77
INTRODUCTION
With the recent wave of protectionist sentiments emerging in the politica l sphere—
including the new ga ins of Eurosceptic part ies, Brexit, and tensions bet ween the United
States and its tradi ng partners since the 2016 election—the legitimacy of t he institutions
at the foundation of the trade liber alization system are increasingly under pressure. e
international investment reg ime has attracte d much academic commentar y, especially
with regard to mecha nisms for investor-state dispute settlement (“ISDS”). ough these
mechanisms have be en established through over 3,200 i nternational investment agreements
(“IIAs”), including bilater al investment treaties (“BITs”) and free trade ag reements (“FTAs”),
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observers have signa lled many shortcomings in the f unctioning of the regime.
1
Some clai m
the system of internationa l investment arbitration is undergoing a “legitimac y crisis.”2
Critics of ISDS point to considerations of independence, impartiality, and competence
of private arbitrators hired from a pool of corporate l awyers to decide on public interests
matters. Commercial a rbitration, where the protection of condential business in formation
is a major concern, serves as t he original basis of ISDS’ institutional setti ng. However,
problems of transparency a nd public accountability emerg e where important issues of
public interest are being decided in a si milar setti ng.3 Beyond institutional concer ns, an
apparent and often irreconcil able contradiction can be identied from the va rious awards.
is has been att ributed in part to the fact that arbitration cla ims are awarded by ad hoc
panels without a right to appea l. Some try to explain these contra dictions by the personal
biases of private arbitrators and /or the wide discretion they e njoy when making decisions
based on vague tre aty standards without adequate g uidelines and consistent methodolog y
in legal reason ing.4
e above shortcomings arg uably translate in a struct ural bias in favour of the investors.5
is issue is par ticularly apparent in ca ses involving claim s of indirect expropriation
for regulatory measures adopted by states in fur therance of public objectives such as
the protection and ful lment of human rights—where the investment regime is fac ed
with a “exibility-stabi lity dilemma” between investment protection and the state’s
right (or perhaps duty) to regulate.
6
Various proposals seek to address t his perceived
structura l imbalance between i nvestors’ interests and human rights consider ations,7 where
1 Alfred-Maurice de Zayas, Repor t of the Independent Exper t on the promotion of a democratic and
equitable international order, UNHRCOR, 33d Sess, Agenda item 3, UN Do c A/HRC/33/40, (12 July
2016) at 3 [de Zayas, 2016 Rep ort ].
2 See e.g. Silvia Steininger, “What’s Human Rights G ot to do With it? An Empirical Analysis of
Human Rights References i n Investment Arbitration” (2018) 31:1 Leiden J Intl L 33 at 33-34
[Steininger]; Susan Franck, “T he Legitimacy Crisis in Investment Treaty Arb itration: Privatizing
Public International Law throu gh Inconsistent Decisions” (2005) 73:4 Fordham L Rev 1521.
3 See e.g. Jasper Krommendijk and John Mor ijn, “‘Proportional’ by Wha t Measure(s)? Balancing
Investor Interests and Human R ights by Way of Applying the Proportio nality Principle in
Investor-State Arbitration” in Pierre -Marie Dupuy, Francesco Francioni, and Ernst- Ulrich
Petersmann, eds, Human rights in International Investment Law and Arbitration (New York, NY:
Oxford Universit y Press, 2009) 422 at 449 [Krommendijk and Mor ijn]; Alfred-Maurice de Zayas,
Report of the Independ ent Expert on the promotion of a de mocratic and equitable international
order, Alfred-Maurice de Zayas, UNHRCOR, 30th Sess, Agenda item 3, UN Doc A/HRC /30/44, (14
July 2015) at paras 15-16 [de Zayas, 2015 Rep ort ]; de Zayas, 2016 Repo rt supra n ote 1 at para 23;
A. Newcombe and L. Parad ell, Law and Practice of Investment Treaties - Standards of Treatment
(Alphen aan den Rijn: Wolters Kl uwer, 2009), Ch 1, section 1.49 [Newcombe and Paradell];
Lone Wandahl Mouyal, International Investment Law and the Right to Regulate: A Human Rights
Perspective (London, New York: Routledge, 2016) at 228 [Mouyal].
4 See e.g. Steininger supra note 2 at 5; Je Waicymer, “Balanc ing Property Rights and Hum an
Rights in Expropriati on” in Pierre-Marie Dupuy, Francesco Franci oni, and Ernst-Ulrich
Petersmann, eds, Human Rights in International Investment Law and Arbitration (New York, New
York: Oxford Universit y Press, 2009) 275 at 298, 304 [Waicymer]; Kromm endijk and Morijn, supra
note 3 at 303-04.
5 See e.g. Julien Cantegreil, “Implementin g Human Rights in the NAFTA Regime—The Potential of
a Pending Case: Glamis Corp v USA” in Pierre- Marie Dupuy, Francesco Francioni, and Ernst-Ul rich
Petersmann, eds, Human Rights in International Investment Law and Arbitration (New York: Oxford
University Press, 2009) 367 at 369 [Cantegre il]; de Zayas, 2015 R ep ort , supra note 3 at paras 15-16);
Steininger, supra note 2 at 51.
6 See e.g. Mouyal, supra note 3, especiall y ch 4.
7 See e.g. Victoria Tauli-Corpuz, Report of the Special Rapporteur of the Human Rights Council on
the rights of Indigenous people s on the impact of international investment an d free trade on the
human rights of Indigenous peoples, UNGAOR, 70th Sess, UN Doc A/70/301, (2015) (discussing
how Indigenous peopl es bear a disproportionate burd en of the systemic imbalances bet ween
investors’ rights and human rig hts).
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