Environmental Engineering Reference
In-Depth Information
dispute between Hull and Calvo was over, and a clear set of minimum standards
was agreed to as customary international law.
42
Overall, this illustrates that investment protection has always been a dichotomy
between sovereignty (e.g. over natural resources) and investment protection (state
responsibility for injury to aliens).
43
Furthermore, the development and ratification
of human rights has led to a minimum standard within international law.
44
2.1.2.2.1
International Investment Arbitration and International Law
The basic principle of international law was that states as only subject of interna-
tional law were capable to have rights and duties assigned to it.
45
This was modified
after the appearance of international organizations which possess a functional
international personality.
46
Nowadays international organizations have a partial
international legal personality limited to the previous determined purpose of the
organization and a particular (relative) international legal personality towards its
members or towards other subjects, which have an own international legal person-
ality and recognize the organization (e.g. based on a bilateral contract).
47
As a next
step, international human rights conventions, e.g. the European Convention on
Human Rights, provided natural persons with the rights and duties of international
law.
48
However, down to the present day, this remains an exception within inter-
national law, and natural or legal persons still lack an international legal personality
within international law.
It is not surprising that international law plays an important role in investment
law and arbitration.
49
In cases of expropriation, it defines standards of protection; in
cases of BITs, it helps to interpret disputed regulations.
50
Before the utilization of
42
Dolzer and Schreuer (
2008
), 15-16; Article 38(1)(b) ICJ Statute explicitly mentions customary
international law as a source of international law. Customary international encompasses two
elements, (1) state practice (substantial, uniform practice of a substantial amount of states) and
(2)
opinio juris
(the practicing state must recognize (or belief) that its activity is legally binding), in:
Aust (
2007
), 11; Shaw (
2008
), 72-93; Birnie et al. (
2009
), 22-25; Herdegen (
2010
),
§
16 para 1.
43
Krajewski (
2009
), 170; Garcia-Bolivar (
2010
), 2; cf Metje (
2008
), 73-74; Balancing the
“playing field”, in: Nmehielle (
2001
), 21 (28).
44
Shaw (
2008
), 825-826; cf Dolzer and Schreuer (
2008
), 13; The relationship of human rights
obligations and investment agreements is subject of an increasing amount of research, whereby
investment treaties still do not refer to human rights in: UNCTAD (
2009
) Selected Recent
Developments in IIA Arbitration and Human Rights—IIA MONITOR No. 2, 1-2; E.g. the status
of the foreigner and includes rights like diplomatic protection or fair and equitable treatment, in:
ICJ [1955] Nottebohm Case (second phase)—Dissenting Opinion Judge Read, 34 (47).
45
Muchlinski (
2009
), 341 (342).
46
Muchlinski (
2009
), 341 (342).
47
Hofmann (
2012
), 2.
48
Tietje (
2003
), 5 (16); Tietje (
2005
), 47 (61); Muchlinski (
2009
), 341 (342).
49
Hob´r(
2008
), 545 (545).
50
Hob´r(
2008
), 545 (545).
