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Canute Confronts the Tide: States vs. Tribunals and the Evolution of the Minimum Standard in Customary International Law
Published online by Cambridge University Press: 20 January 2017
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- Type
- Third Annual Charles N. Brower Lecture on International Dispute Resolution
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- Copyright © American Society of International Law 2016
References
1 Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, 213 U.N.T.S. 222, Protocol 13 (concerning the abolition of the death penalty in all circumstances).
2 Arsanjani, Mahnoush H., The United Nations and International Law Making, Opening Lecture, Public International Law Session 2012, Hague Academy of International Law, 362 Recueil Des Cours 25 (2014)Google Scholar.
3 Tullio Treves has observed: “As the authority of international courts and tribunals to settle a dispute between States derives from agreement of the States involved, judgments of such courts and tribunals may be seen, indirectly, as manifestation of the practice of the States that have agreed to confer on them such authority and the mandate to apply international—including customary—law.” [Emphasis added.] Treves, Tullio, Customary International Law, in Max Planck Encylopedia of Public International Law, ¶¶ 54–55Google Scholar.
4 James Crawford, Brownlie’a Principles of Public International Law 26 (2012).
5 Sir Robert Jennings & Sir Arthur Watts, Oppenheim’s International Law 41, ¶ 13 (1992) (emphasis added). With respect to the practice of the International Court of Justice, they observe:
The International Court of Justice, while prevented from treating its previous decisions as binding, has, in the interest of judicial consistency, referred to them with increasing frequency. It is probable that in view of the difficulties surrounding the codification of international law, international tribunals will in the future fulfil, inconspicuously but efficiently, a large part of the task of developing international law.
Id.
6 North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), 1969 ICJ Rep. 3, ¶ 79 (Feb. 20).
7 Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep.14, ¶ 186 (June 27).
8 Crawford, supra note 4, at 28.
9 Id.
10 Treves, supra note 3, at 945, ¶ 39.
11 Engel, Salo, Procedures for the De Facto Revision of the Charter, in 59 Proceedings of the American Society of International Law at its Annual Meeting 108 (1965)CrossRefGoogle Scholar.
12 Id . ¶ 24.
13 The treaty in question may also be trilateral, as, for example, in NAFTA, or multilateral, as, for example, in the Energy Charter Treaty. It may also occur as a result of a host state’s contractual or statutory commitments.
14 In a lecture I observed:
[I]international investment law, understood as a system, encompasses more than a shifting network of arbitral tribunals which incorporate the New York or Washington Conventions. Obviously, the system includes the network of bilateral and multilateral agreements on the same subject and, often, incorporating many identical guarantees. The substantive congruence of these various treaties is reinforced by operation of most-favored-national clauses which enable investor-beneficiaries to escalate their own treaty privileges by importing more attractive privileges from treaties with third states. As for the system’s participants, they include far more than arbitrating parties and their arbitrators. In addition to them, it includes government officials, the secretariats of various international organizations, financial institutions and non-governmental organizations. Like all systems, it is dynamic in the sense that every arrangement which is perceived as benefitting some participants more than others is immediately challenged in various ways to be succeeded by others which are, in turn, challenged, ad infinitum.
Reisman, W. Michael, ‘Case Specific Mandates’ versus ‘Systemic Implications’: How Should Investment Tribunals Decide?: The Fresh fields Arbitration Lecture, 29:2Arb. Int’l. 139–140 (2013)Google Scholar.
15 Dickerson, Hollin, Minimum Standards, in Max Planck Encyclopedia of Public International LawGoogle Scholar. For historical background, see Borchard, Edwin, The “Minimum Standard” of the Treatment of Aliens, 33 Proceedings of the American Society of International Law at its Annual Meeting 51–74 (1939)Google Scholar, and Andreas Roth, The Minimum Standard of International Law Applied to Aliens (1949).
16 Reinsoh, Paul S., The Fourth International Conference of American Republics, 4 AJIL 787 (1910)Google Scholar.
17 Dickerson, supra note 15, at 239, ¶ 23 (emphasis added).
18 Dispute Regarding Navigational and Related Rights, (Costa Rica v. Nicar.) 2009 ICJ REP. 213, at ¶ 70 (July 13).
19 Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, ¶ 125 (Oct. 11, 2002).
20 Id. ¶¶ 114, 115.
21 Id. ¶ 116.
22 Id. ¶ 119.
23 Id. ¶ 117.
24 Id.
25 Id.
26 Id. ¶¶ 110-113 (emphasis added).
27 Id. ¶ 125.
28 ADF Group v. United States of America, ICSID Case No. ABR(AF)/00/1, Award (Jan. 9, 2003).
29 Id . ¶ 179.
30 Id . ¶ 184.
31 Metalclad Corporation v. United Mexican States, ICSID Case No. ARB/AF/97/1, Award (Aug. 30, 2000).
32 Id. ¶ 73.
33 Biloune et al. v. Ghana Investment Centre, et al., 95 I.L.R.183, 207-10 (1993).
34 Id . ¶ 108.
35 Id . ¶ 265, referring to Mann, F.A., British Treaties for the Promotion and Protection of Investments, 52 Brit. Y. Int’l L. 241 (1981)Google Scholar.
36 Id .
37 Pope & Talbot Inc. v. The Government of Canada, UNCITRAL, Award on the Merits of Phase 2, ¶ 111 (Apr. 10, 2001). Christopher Thomas, who is critical of this line of decisions, points out, in his thoughtful article, that F.A. Mann’s note of 1981, though quoted approvingly not only in the S.D. Myers, but also by the Pope & Talbot tribunal, related to the meaning of the “fair and equitable treatment” standard in the U.K.-Philippines BIT as an autonomous concept and not to a minimum standard under customary international law. But this critique of one, albeit not the sole authority cited as evidence for the broader interpretation of the fair and equitable treatment standard, fails to take account of the contemporaneous legal context. In 1981, bilateral investment treaties were a minor and still uncertain legal phenomenon—the wave of bilateral investment treaties was just starting to sweep the world. What F.A. Mann identified as an autonomous standard in a few treaties—and, as such, not qualifying as evidence of a global minimum standard—has now, with the number of those special treaties swelling to almost three thousand and with the routinization of their enforcement via the arbitration of Investor-State disputes, become the minimum standard regarding investments under customary international law. The exact content of the evolved standard aside, the point of emphasis is that that content will, in the main, be determined by the decisions of international arbitral tribunals, a distinctive part of contemporary international investment law, as explained earlier. Thomas, J.C., Reflections on Article 1105 of NAFTA: History, State Practice and the Influence of Commentators, 17 ICSID Rev. 21, 53 (2002)Google Scholar.
38 Pope & Talbot Inc. v. The Government of Canada, UNCITRAL Rules, Award with Respect to Damages (May 31, 2002). What is striking and ironic about Pope & Talbot is that ultimately the case was decided on the basis of Neer . The Pope & Talbot tribunal found the conduct of the relevant bureau of Canada’s Federal Government shocking and outrageous and in breach of fair and equitable treatment of NAFTA’s Article 1105:
68. ... One would hope that these actions by the SLD would shock and outrage every reasonable citizen of Canada; they did shock and outrage the Tribunal.
69. The Tribunal concluded . . . the conduct of the SLD in the Verification Review Episode violated the fair and equitable treatment requirement under Article 1105, even using Canada’s strict formulation of that requirement.
38 Id.
39 Glamis Gold, Ltd v. United States of America, UNCITRAL, Award (June 8, 2009).
40 Id. ¶ 604.
41 Id. ¶ 601.
42 Id. ¶ 600. The tribunal recognized that Mexico’s position was flexible by stating that: “though Mexico ‘also agrees that the standard is relative and that conduct which may not have violated international law [in] the 1920’s might very well be seen to offend internationally accepted principles today.” Id.
43 Id. ¶¶ 602-603.
44 Id. ¶ 607.
45 Id. ¶ 605.
46 Id.
47 L.F. Neer v. Mexico (1927), 4 REP. INTL ARB. AWARDS, 60, 61, ¶ 4 (1926).
48 Document A/4425: Report of the International Law Commission Covering the Work of Its Twelfth Session, [1960] U.B. Int’l L. Comm’n 145, ¶ 21, U.N. Doc. A/CN.4/SER.A/1960/ADD.
49 Schwebel, Stephen M., The Influence of Bilateral Investment Treaties on Customary International Law, in 98 Proceedings of the American Society of International Law at its Annual Meeting 27, 29 (2004)CrossRefGoogle Scholar.
50 Id. at 29-30. Judge Schwebel also quotes from R. R. Baxter’s Hague Lecture in which he observed: “Bilateral consular treaties have exercised a most important influence on the development of customary international law on consuls, now codified in the Vienna Convention on Consular Relations.” (Baxter, R.R., Treaties and Custom, 129 Recueil Des Cours 1970 (I), at 25, 87.)Google Scholar. Id.
51 Id. ¶ 616.
52 Id. (emphasis added).
53 Glamis Gold, Ltd. v. United States of America, UNCITRAL, Award (May 16, 2009).
54 Id. ¶ 616.
55 Cargill Incorporated v. Mexico, ICSID Case No. ARB(AF)/05/2 (Sept. 18, 2009).
56 Id. ¶ 276.
57 Id. ¶ 282.
58 Id. ¶ 276.
59 Merrill & Ring Forestry L.P. v. Canada, UNCITRAL, Award (Mar. 31, 2010).
60 Id. ¶ 184.
61 Id.
62 See Reisman, W. Michael & Digoón, Rocóo, Eclipse of Expropriation?, in Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2008, 27 (Rovine, Arthur W. ed., 2008)Google Scholar.
63 W. Michael Reisman, The Quest for World Order and Human Dignityinthe Twenty-First Century: Constitutive Process and Individual Commitment: General Courseon Public International Law (2012).