A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. Articles recently published about the theory focus on its specific application in different areas of international law, including international investment law,1 international humanitarian law2 and human rights law.3 The present article intends to examine the concept of persistent objector in general international law.4
This article examines when and how allegations of human rights violations committed by an investor can be raised before an arbitral tribunal in the context of investor-State arbitration. We first briefly examine the controversial question of corporations’ human rights obligations under international law. We then analyse three typical features, found in the vast majority of BITs, which clearly bars host States from initiating on their own arbitration proceedings to claim reparation for human rights violations committed by a foreign investor in their territory. We next analyze the limited circumstances under which the host State can raise allegations of human rights violations when acting as respondent in arbitration proceedings. Finally, we will look at circumstances where the home State of an investor may decide to intervene with the tribunal to raise allegations of human rights violations.
(Civil Law section), Canada. The author wishes to thank Dr. Chiara Giorgetti (White & Case LLP, Washington) and Me Erik Labelle-Eastaugh for their comments and suggestions on an earlier draft of this paper. This article reflects facts current as of January 2010.
Rules of customary international law provide basic legal protections to foreign investors doing business abroad. These rules remain of fundamental importance today despite the growing number of investment treaties containing substantive investment protection. In this book, Patrick Dumberry provides a comprehensive analysis of the phenomenon of custom in the field of international investment law. He analyses two fundamental questions: how customary rules are created in this field and how they can be identified. The book examines the types of manifestation of State practice which should be considered as relevant evidence for the formation of customary rules, and to what extent they are different from those existing under general international law. The book also analyses the concept of States' opinio juris in investment arbitration. Offering guidance to actors called upon to apply customary rules in concrete cases, this book will be of significant importance to those involved in investment arbitration.
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