"If stars are lit, it means — there is someone who needs it": a new human rights protecting function of bilateral investment treaties

In: Meždunarodnoe pravosudie, Band 11, Heft 2, S. 151-174

Abstract

A new trend in both making and interpreting bilateral investment treaties (BITs) consists in a shift towards the protection of human rights of the host-State population. The authors resort to legal analysis to answer three questions related to this trend. First, how treaties, which are inherently programmed for the protection of investors from host-States, can be used to prevent investors from breaching human rights? Second, are BITs capable to effectively carry out this function? Third, who is the actual beneficiary of the values' change in BITs? The article identifies three ways how human rights standards are included or respected throughout the BITs' drating and application processes. First, human rights norms can be explicitly mentioned in a BIT. Second, an investment tribunal can directly apply international human rights law during dispute settlement. Third, human rights norms can impact the interpretation of a BIT, or, vice versa, the BIT provisions can be taken into account when international judicial or quasi-judicial human rights bodies interpret human rights' conventions. Resorting to one or several of these ways leads to various results of the combination of BITs with human rights standards, that differ by a duty-bearer (a State or an investor) and by the legal mechanism of human rights protection. The authors distinguish four such models. The model analysis reveals restrictions and distortions pertinent to the new way of using BITs. Also, it allows evaluating trends from points of view of different stakeholders — home-States, host-States, and the population of the latter.