Human Rights Issues Implicated in BITs Disputes

Wie bisher gesehen wurde sind BITs einerseits als eine Methode der Problemlösung zu verstehen aber andererseits lässt sich als Erzeuger anderer Probleme kritisieren. Die Probleme der Menschenrechte bei BITs Disputes stelle ich jetzt vor.

Folgender Text ist die kleine Einführung in das Thema.

While there has been some work undertaken to explore the relationship between the multilateral trading system and human rights, there have been fewer inquiries into the relationship between the international governance frameworks for investment and human rights. Doubtless, this owes a great deal to the fact that, to the extent investment is governed by international rules; this is primarily through less-visible bilateral and regional treaties. It likely also owes to the fact that investment treaty dispute settlement is dispersed, ad-hoc and often opaque. As such, even where investor arbitrations might harbour implications for human rights, these cases might not necessarily come to public notice. Clearly, there is a need for immediate reform of the dispute settlement processes, so that cases may not proceed without publicity.

For purpose of analysis, two general scenarios where there is an interface between investment treaty arbitration and human rights can be envisioned.

The first of these involves those situations where the host state’s treatment of an investor can be argued to have been in furtherance of certain international human rights commitments of the host state. This might include ordinary exercises of state authority (for example under criminal law) to sanction foreign investors which are alleged to have violated the human rights of local citizens. It might also include situations where host states act proactively so as to further human rights, rather than in a merely reactive manner (i.e. in response to investor wrong-doing).

A second and very different scenario where investment treaty arbitration and human rights may intersect is in those situations where both parties to an investment dispute appear to have been complicit (either by their actions or their omissions) in allowing human rights violations to be perpetrated by the state or by corporate actors (with the blessing or acquiescence of the state). In this scenario, neither party is claiming that its actions were pursuant to international human rights obligations. While compliance, or otherwise, with these human rights norms may be adjudicated in other bodies, it is unclear what role an investor’s human rights record will play in the substantive deliberations of an investment treaty arbitration.

ausführlich : www.iisd.org