Panels on Intergrating Human Rights in Civil Cases

From the Editor

The two panels on integrating human rights in civil cases had examined the use of human rights norms in both national and international courts.

Piers Gardner (Monkton Chambers, London) had discussed the human rights of companies in the context of commercial disputes brought before the European Court of Human Rights (ECHR). Among the cases he looked at was the case brought by Yukos, the defunct Russian oil company, against the Russian Government before the ECHR.


Timothy Nelson (Counsel, Skadden Arps, New York) had focused on the use of human rights standards in international investment litigation. He had discussed cases brought before tribunals of the International Centre for the Settlement of Investment Disputes (ICSID) and the Southern African Development Community Tribunal, by Zimbabwean farmers deprived of their lands under the Zimbabwean Land Acquisition Act.
The cases before the ICSID had been brought by farmers who possessed Dutch citizenship, relying on the Netherlands-Zimbabwe Bilateral Investment Treaty. Nelson identified as one problem facing claimants, that of enforcement of the judgements rendered against Zimbabwe. Zimbabwe has so far refused to recognise and satisfy those judgments, although a number of them have been enforced by the South African Courts (See Kluwer Arbitration blog).

 
Maria Kostyska (Attorney, Winston & Strawn LLP, Washington D.C) had looked at the invocation of human rights standards and precedents not expressly provided for in an investment treaty, in investment arbitration. She had identified as a possible risk of applying such human rights standards in investment arbitration, the annulment of an arbitral award for failure of the arbitrators to apply the appropriate law. Such application by a tribunal could be challenged as a manifest exceeding of powers, based on Art 42 of the ICSID Convention. According to the choice of law rules contained in Art 42 of the ICSID Convention, human rights law would be applicable if the law of the contracting State party to the dispute (including its conflict of law rules) provides for its application, if the parties to the dispute agree to its application (an unlikely scenario according to Kostyska) or if the tribunal considers human rights law to be an applicable rule of international law within the meaning of Art. 42 (though the latter scenario seems to give a tribunal a lot of discretion, Kostyska had noted that human rights law would usually be applicable if it coincides with general international law).

Kostyska had also discussed the different approaches of States and tribunals to the application of human rights law in investment arbitration. For example, in the TECHMED case, an ICSID tribunal had invoked ECHR and Inter-American Court of Human Rights cases to establish the appropriate standard of expropriation. It had referred to those cases as sources of law within the meaning of Art. 38 of the ICJ Statute. Whereas in the Glamis Gold case, an ICSID tribunal declined to address human rights issues raised by the parties. In the pending NAFTA/UNCITRAL Grand Water Enterprises case, the United States has argued that human rights law has not risen to the level of customary international law and is thus irrelevant to the interpretation of Art. 1105 NAFTA. Also, in the Compañía de Aguas del Aconquija S.A. case, an ICSID tribunal had in response to Argentina’s argument that its obligation to safeguard the right of its citizens to water trumped its obligations to a foreign investor, found that human rights obligations do not trump investment obligations, that both obligations can co-exist.

Beth Stephens (Professor, Rutgers School of Law, the United States) had discussed claims brought under the U.S Alien Torts Claims Act. She shared her views on where trials for violations of international law under the Act fit within the global accountability movement. She considered them to play an important role in filling the accountability gap resulting from the fact that the system of corporate accountability worldwide is broken : no treaties, no accountability mechanism for people who have suffered displacement from their lands or other human rights violations by corporations, e.t.c. Accountability mechanisms were lacking because host or home states of transnational corporations are often unwilling or unable to prosecute them and the companies themselves could challenge the jurisdiction of the host countries.

The US cases were therefore among the first attempts at remedying this situation. They could importantly lead to international agreement and the development of procedures on how transnational corporations can be held accountable. Stephens mentioned as one problem such international agreement and procedures could address, the problem of the relationship between parent and subsidiary companies and the danger of an injured party being left with a shell company from which (s)he cannot recover damages because its assets have been transferred to the parent company. Also a problem that could be addressed by international procedures was that of the right forum for trying corporate offences (home state, host state?). Lastly, such international agreement would resolve the anomalous situation that only corporations doing business in the US potentially face the costs of litigation for human rights abuses, a situation those companies consider unfair.