Exception Provisions as a Gateway to Incorporating Human Rights Issues into International Investment Agreements

Abstract

Linkages between investment law and other areas of international law remain largely obscure. In particular, investment arbitral tribunals tend to separate investment issues from human rights issues despite the increasing number of disputes which implicate both areas. In part, this separation of issues stems from a primary focus on the economic aspects of foreign investment. Yet beyond their economic components, international investment agreements (IIAs) contain a social dimension, as foreign investment directly impacts social, political, and environmental issues. Consequently, international investment law should be reconceptualised in order to realize both the economic and social aspects of foreign investment. One way to achieve these twin aims is through the use of exception provisions which allow states to derogate from their IIA obligations under specified conditions. Although, human rights are generally not a specified condition allowing derogation, several types of exception provisions are broad enough to encapsulate human rights obligations in their ambit if interpreted broadly. Recently, several investment arbitral tribunals have interpreted exception provisions in investment treaties to which Argentina is a party. Using these decisions as a basis, this article explores, first, whether there is a theoretical basis for interpreting exception provisions in IIAs in accordance with human rights norms, and second, if a theoretical basis exists, how such interpretations should proceed.Presented at the SIEL 2010 Conference in Barcelona.