Hagia Sophia at ICSID? The Limits of Sovereign Discretion

Abstract

The paper focuses on an underdeveloped area of jurisprudence in international economic law, that of the remit of sovereign discretion on cultural and religious grounds when it intersects with investor protections under international law. An investigation on the limits of sovereign discretion on issues of religion and culture is the next frontier in debates on investor state dispute settlement. While issues of expropriation, the meaning of fair and equitable treatment, exclusions from protection based on public policy, or on grounds of national security, have been thoroughly examined by international investment tribunals; this aspect of public policy that relates to culture and religion leaves many key issues unexplored. The paper explores options in investment arbitration for foreign investors affected by changes brought about by sovereign decisions based on religious and cultural grounds, shedding light in this politically and emotionally charged corner of international economic law. The paper initiates this discussion by investigating the possibility that the Switzerland-Turkey BIT of 1988 may offer bases for compensation to SICPA, the -till recently- operator of the Hagia Sophia museum in Istanbul, a world heritage site of global religious and cultural significance transformed again into an operational place of worship in 2020.