This chapter examines the complexity of rights-claiming in South Korea related to the violence on Jeju Island around April 3, 1948. The Jeju case demonstrates that rights claiming and counterclaiming over seventy years shaped the transitional justice process, which can be divided into four distinct periods according to the nature and dynamics of rights claims and counterclaims. I find that rights claims by both sides were not made in a vacuum but within a thick layer of existing discourses and narratives, colored by existing power structures. Over the decades, interesting dynamics of claim diversification and frame resonance occurred depending on the opportunity structures in a particular time and space. I found that rights claims diversify when the counterclaims are strong and the opportunity structure opens up. In addition, frame resonance influences the effectiveness of rights claims.

In international investment law, investor-claimants often have recourse to human rights case law in order to support a certain interpretation of investment protection standards, such as denial of justice and the prohibition on expropriation of private property without compensation. What is rarer, however, is that respondent States may invoke their human rights obligations in order to formulate a defence of their conduct towards a particular investor, or even to formulate a counterclaim. After briefly outlining investors’ reliance on human rights rules to support their claims, this chapter investigates the potential of invoking human rights norms by respondent States in order to persuade a tribunal that, first, it does not have jurisdiction; secondly, no investment protection standard has been violated; or, thirdly, damages ought to be calculated in a certain manner. Subsequently, three specific issues that may complicate the invocation of human rights norms in investor-State dispute settlement are examined: the difference between human rights obligations and objectives; State acquiescence or complicity to human rights violations; and human rights counterclaims.

Chapter 5 looks at the other form of contributory fault: a defence called investment reprisal. Aside from the different causal relation that an instance of investment reprisal has to the relevant loss in comparison to mismanagement, the former involves wrongful conduct on the part of the investor, rather than risky conduct. For this reason, investment reprisal is a form of investor misconduct, which brings it close to another defence: post-establishment illegality. In establishing their doctrinal foundations, special attention is paid to how the circumstances that activate them differ from similar circumstances that relate to different rules, such as the legality requirement for jurisdiction. The bulk of this chapter is dedicated to detailing these defences’ legal content and traversing the difficult questions on jurisdiction and admissibility that they raise. Again, the opportunity is taken to propose a reason-based method for apportioning liability when these defences apply, and the concluding sections distinguish them from other related legal concepts.