The Interaction between International Investment Law and Human Rights Treaties : A Sociological Perspective

Abstract

This chapter analyzes the interaction between international investment law and human rights instruments from a socio-cultural perspective. It is argued that legal interactions between various branches of international law (either integration or fragmentation) may be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as the mutual relationships between the relevant social groups. More specifically, it is argued that the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject parallel legal rules developed in other branches of international law. Consequently, greater socio-cultural ‘distance’ between the involved social settings and groups is likely to decrease the prospects for mutual incorporation of legal rules developed in the other legal sphere. As to the relationship between international investment and human rights laws, the likelihood of investment tribunals to accord a significant role to human rights treaties is influenced by the cultural distance between these two branches of international law. An analysis of investment tribunals' jurisprudence indicates that investment tribunals do not hesitate to apply rules derived from certain non-investment branches of international law (state responsibility, treaty law and general principles of law regarding corruption). Despite that, they are generally reluctant to accord significant weight to human rights treaties in international investment law. An analysis of the relationships between the social settings involved in international human rights and investment laws reveals a considerable socio-cultural distance between these branches of international law. In light of this and the deep-rooted tensions between the relevant communities, it is not surprising that investment tribunals are generally reluctant to accord significant weight to human rights treaties in international investment law. Thus, the considerable socio-cultural distance between these socio-cultural settings parallels the normative distance between these branches of international law. The existing social and normative gaps between investment and human rights laws may change in the future. Past experience shows that the relationship between various branches of international law is often dynamic. Future socio-cultural changes within each community – or changes in the social interactions between the relevant communities – may narrow the normative distance between international human rights and investment laws.