Book Symposium Investment Law: Investment Tribunals and Human Rights Treaties – A Sociological Perspective

[Moshe Hirsch is Professor of International Law at the Hebrew University of Jerusalem Faculty of Law.]

Sociology of international law involves the study of how social factors influence the development and enforcement of international law. As elaborated below, sociological analysis casts a new light on a significant dimension of the relationships between different branches of international law, and enriches our understanding of social factors involved in in legal decision-makers’ inclination to incorporate or reject legal rules developed in other branches of international law. This chapter aims to analyze the particular set of interactions between two branches of international law – human rights and investment treaties – from a socio-cultural perspective.

Analysis of investment tribunals’ decisions relating to human rights instruments reveals that while these tribunals often incorporate rules of general international law (particularly on state responsibility and treaty law), they adopt a quite consistent approach opposing the incorporation of international human rights law in investment disputes.  Investment tribunals have generally declined to thoroughly examine the specific provisions of international human rights instruments invoked by the parties, notwithstanding the various arguments raised during different stages of litigation by the various parties. In all cases dealing with the interaction between investment and human rights instruments, not one investment tribunal has absolved a party from its investment obligations or reduced the amount of compensation as a result of the consideration of human rights instruments.

Sociologists of law have long emphasized that law is “always rooted in communities”; and laws are considered by these scholars as expressive types of these communities.

The basic argument of this chapter is that legal interactions between branches of international law may also be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as by the mutual relationships between the relevant social groups. More specifically, the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject legal rules developed in other branches of international law. Generally, greater socio-cultural ‘distance’ between the involved social settings and groups decreases the prospects for mutual incorporation of legal rules developed in the other legal sphere.

The social settings in which international investment and human rights laws emerge and are interpreted, are very different. The members of the two communities pursue extremely different career paths. While most human rights lawyers work in legal divisions of NGOs or the academia, foreign investment lawyers (and arbitrators) are predominantly senior lawyers-practitioners, legal scholars or former judges affiliated with major international law firms.

While human rights lawyers are often linked to a certain social movement and are determined to take sides in political or moral struggles, most investment lawyers are anxious to maintain a professional and neutral position.  These divergent career paths mean that the members of the two communities undergo starkly different socialization processes.  Thus, for example, while investment lawyers are inclined to emphasize the importance of the unimpeded flow of capital, legal predictability and stability, as well as a market economy ideology; human rights lawyers are more concerned with universal values and underline the primacy of human rights over other international legal rules (including international economic treaties).

Each community has distinct heritage and collective narratives. For example, while ‘the great petroleum arbitrations’ during the 1960s and 1970s  occupy a quasi-mythical position in international investment law ; the adoption of the Universal  Declaration of Human Rights and the Tiananmen Square Massacre constitute central collective narratives for human rights lawyers.

The members of the two communities employ different terminologies. Thus, for example, while human rights lawyers frequently refer to ‘the Covenants’ or the CERD, many of them do not understand terms like MFN, FET, or ‘umbrella clauses’. These different vocabularies point to the fundamental conceptual differences between these spheres of international law.

International investment and human rights laws have dissimilar ‘legal cultures’  and the members of each community hold different views regarding the roles of law  and tribunals. The predominantly private character of investment tribunals, and their emphasis on the private-commercial aspects of investment disputes, may well explain those tribunals’ ingrained inclination not to focus on public policy issues (such as human rights obligations) involved in investment disputes.

The relationship between the human rights and investment communities is often characterized by mistrust and antagonism. These hostile relationships were prominent during the attempts to establish the comprehensive Multilateral Agreement on Investment (MAI) that failed in 1998, as well as during the failed negotiations to formulate an additional WTO agreement on investment (1996-2004). Indeed, one of the significant factors leading to these negotiation failures relates to the opposition of human rights and environmental NGOs.

To sum up, in light of the considerable socio-cultural distance between investment and human rights laws, and the deep-rooted tensions between the relevant communities, it is not surprising that investment tribunals are generally reluctant to accord significant weight to human rights treaties in international investment law. Thus, the substantial socio-cultural distance between these socio-cultural settings parallels the normative distance between these branches of international law.

Social factors and processes change over time, and social patterns affecting the socio-cultural distance between investment and human rights laws are also likely to be modified. The disinclination of investment arbitrators to incorporate rules derived from human rights instruments may be altered; for example, following changes in the ‘demographic composition’ of investment arbitrators (including their social background), changes in the mutual interactions between the two communities (e.g., increasing direct interpersonal interactions between the members of the two communities), or modifications in the external environment in which investment tribunals operate. Recent developments highlight certain buds of change and they may signify more willingness on the part of investment arbitrators to increase the weight of human rights treaties in investment disputes.