6.3.1 Domestic Courts’ Practices

As noted in Section 6.2, while the monitoring bodies adopt a number of general and country-specific findings, their practical relevance ultimately relies upon domestic acceptance. While it is methodologically challenging to have an overview of the practices of national courts’ engagement with the monitoring bodies, the analysis of judicial decisions I have conductedFootnote ²¹ provides some ideas about the patterns of engagement. To begin with, the pronouncement of the monitoring bodies has not been used as an independent and free-standing basis for the final decisions of domestic courts. Namely, Views, and much less General Comments and Concluding Observations, do not serve as the basis on which domestic courts decide the wrongfulness of acts or the legality of law.

In light of this, attempts to construe Views as an autonomous legal basis for judicial decisions have met with rejection.Footnote ²² Illustrative in this regard is the Irish Supreme Court’s decision in Kavanagh v. Governor of Mountjoy Prison (2002),Footnote ²³ forming a part of the case-specific response to the HRC’s Views in which Ireland was found in breach of Article 26 of the ICCPR on equality before the law.Footnote ²⁴ While the Irish Supreme Court’s rejection was based on the constitutional ground that justice ought to be administered by properly constituted courts,Footnote ²⁵ the court also commented on the absence of international legal grounds. According to the Irish court, ‘[n]either the Covenant nor the Protocol at any point purports to give any binding effect to the views expressed by the Committee’ which, as the Supreme Court reiterated, ‘does not formulate any form of judgment or declare any entitlement to relief’.Footnote ²⁶

In a similar vein, another noteworthy case is Wilson v. Ermita (2016) before the Supreme Court of the Philippines.Footnote ²⁷ In 1998, Wilson, a British national, was convicted of the crime of rape and sentenced to death. Before his conviction was set aside by the Supreme Court in 1999,Footnote ²⁸ Wilson submitted the communication to the HRC, which eventually rendered its Views in 2003.Footnote ²⁹ According to the HRC, the conditions under which Wilson was arrested, detained and imprisoned infringed several provisions of the ICCPR, including Article 7 on the prohibition of torture, or other cruel, inhuman or degrading treatment or punishment.Footnote ³⁰ The HRC observed that the Philippines should provide compensation for Wilson.Footnote ³¹ He then filed a petition for mandamus before the Supreme Court of the Philippines, arguing that the government is obliged to enforce the Views as part of its duties under international law.Footnote ³² The Supreme Court dismissed Wilson’s claim. While the court’s rejection was based primarily on the lack of domestic effect of treaties,Footnote ³³ the Supreme Court made remarks on the characteristics of Views. According to the court, nowhere in the ICCPR does it state that Views formed part of the treaty.Footnote ³⁴

The court’s conclusion in Wilson v. Ermita is nothing new. Noteworthy still, however, is that the Supreme Court of the Philippines invoked the HRC’s General Comment No. 33 in the course of denying the applicability of Views to case-specific judicial responses. In General Comment No. 33 (advanced unedited version of November 2008), the HRC regarded its Views as exhibiting ‘some important characteristics of a judicial decision’.Footnote ³⁵ The Supreme Court quoted this phrase, observing that the HRC’s Views ‘only displays “important characteristics of a judicial decision”’.Footnote ³⁶ According to the court, the Views are thus ‘mere recommendations to guide the State it is issued against’.Footnote ³⁷ While the Supreme Court of the Philippines at least engaged with the narrative of General Comment No. 33, the court’s use of the finding was rather ironic. Judges used it in order to dismiss, as opposed to augment, the judicial relevance of the Views of the HRC.

These examples again remind us of the structurally limited role of the judiciary in providing case-specific follow-up.Footnote ³⁸ Yet even outside case-specific circumstances, some domestic courts have much more ‘distanced relations’Footnote ³⁹ with UN treaty-monitoring bodies and have taken a dismissive attitude towards the relevance of their treaty interpretation.Footnote ⁴⁰ In some countries, judicial narrative accommodates little or no reference to treaty body findings. While the International Law Association’s (ILA) Committee on International Human Rights Law and Practice (1997–2008) conducted extensive studies on judicial practices, the study could not specifically identify judicial references to the monitoring bodies in, among others, the countries of Francophone Africa or the Arab region. According to the 2004 Berlin report of the ILA Committee, there were no identifiable judicial practices in Bulgaria, Jordan, Egypt, Saudi Arabia, Colombia, Ecuador, Chile, Argentina, Malaysia, Singapore or Brunei.Footnote ⁴¹ The absence of explicit reference is also evident in French courts. A study of French courts’ practices suggests that not only judges, but also the litigants themselves rarely refer to the monitoring bodies’ findings.Footnote ⁴²

6.3.2 International Legal Justification for Non-engagement

There are, no doubt, country-specific backgrounds that sustain and justify no or very limited judicial engagement with the findings of the monitoring bodies.Footnote ⁴³ Judges’ strong loyalty to the separation of powers, for instance, may sustain distanced relations with formally non-binding international documents.Footnote ⁴⁴ What should be remembered, however, is that non-engagement can be explained and justified, not only by domestic specificities, but also by international law. A regularly invoked ground in this regard is the formalistic narrative that treaty body findings lack legal binding force. As a matter of formal status, it is hard to deny that Views themselves are not binding under international law.Footnote ⁴⁵ States generally consider that the HRC’s Views, as well as interim measures, are non-binding under international law.Footnote ⁴⁶ The lack of binding force is even more evident with regard to General Comments and Concluding Observations.

The legal status of the findings themselves does not speak of the status of the content of the committees’ findings. States, and indirectly their courts, are obliged to give effect to the substance of the findings of the treaty-monitoring bodies, if it reflects established treaty obligations. The content of General Comments and Views may reflect ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.Footnote ⁴⁷ While, in principle, ‘subsequent practice’ is not equated with the institutional practices of the monitoring bodies themselves, the monitoring bodies’ findings can facilitate an interpretation accepted by states parties which may support or acquiesce to the observations of the monitoring bodies,Footnote ⁴⁸ even though caution should be exercised.

Despite the content-based obligation on the part of states parties, the rule of treaty interpretation is so flexible that domestic courts can readily argue that the monitoring bodies’ interpretation does not reflect ‘subsequent practice’. The flexibility is preserved by the International Law Commission (ILC), which adopted, in 2018, a set of draft conclusions on ‘subsequent agreements and subsequent practice in relation to the interpretation of treaties’.Footnote ⁴⁹ In the draft conclusions, the ILC reiterated that a pronouncement of ‘expert treaty bodies’, such as UN human rights treaty-monitoring bodies,Footnote ⁵⁰ ‘may’ give rise to, or refer to, a ‘subsequent agreement or subsequent practice by parties’ under Article 31(3) of the Vienna Convention on the Law of Treaties.Footnote ⁵¹ The draft conclusions, however, warned that ‘[s]ilence by a party shall not be presumed to constitute subsequent practice’ under Article 31(3)(b) of the Vienna Convention.Footnote ⁵² As the ILC acknowledges, ‘it cannot usually be expected that States parties take a position with respect to every pronouncement by an expert treaty body, be it addressed to another State or to all States generally’.Footnote ⁵³ While this caution against the misinterpretation of silence by states parties makes pragmatic sense, the ILC’s work did not elaborate upon possible indicators with which to assess whether the pronouncement of UN human rights treaty-monitoring bodies reflects established treaty interpretation. Overall, the ILC’s work preserved the flexibility – and associated uncertainty – inherent in Article 31(3)(b) of the Vienna Convention on the Law of Treaties, which, in the context of the theme of this chapter, effectively leaves ample space for domestic courts to reject the obligatory nature of the specific content of the findings.

6.4.1 Domestic Courts’ Practices

While the lack of legally binding force may serve as a justification for non-engagement, some other domestic courts have shown greater willingness to refer explicitly to treaty body findings. General Comments, Concluding Observations and Views can be invoked to interpret the terms of relevant human rights treaties, which may ultimately be used to inform the construction of domestic (constitutional) provisions regarding fundamental rights. Admittedly, judges tend to be less hesitant in referring to treaty body findings in such countries as Canada, the UK, New Zealand and possibly some other common law countries.Footnote ⁵⁴ Yet judicial proximity to treaty body findings is by no means limited to jurisdictions with common law traditions.

There are abundant examples of judicial interpretive engagement.Footnote ⁵⁵ Among many others, for instance, the Israeli Supreme Court in Kav Laoved v. Interior Ministry (2011), in denying the constitutionality of the country’s work permit procedure designed for female migrant workers, consulted the CEDAW’s General Recommendations 21 (on equality in marriage and family relations) and 26 (on women migrant workers), as well as the CERD’s General Recommendation 30 (on discrimination against non-citizens).Footnote ⁵⁶ Likewise, the Israeli Supreme Court in Adam v. Knesset (2014) invoked the Views of the HRC in order to interpret the scope of arbitrary arrest and detention under the ICCPR, which served ultimately to decide upon the constitutionality of domestic legislation.Footnote ⁵⁷

In a similar vein, the Federal Court of Australia in Iliafi v. The Church of Jesus Christ and the Latter-Day Saints Australia (2014) resorted to several findings of the monitoring bodies: General Recommendation No. 20 of the CERD,Footnote ⁵⁸ the HRC’s General Comments Nos. 22 (on the right to freedom of thought, conscience and religion) and 23 (on the rights of minorities),Footnote ⁵⁹ and the jurisprudence of the HRC formulated through its Views.Footnote ⁶⁰ These documents were mentioned by the Australian court in order to interpret the Racial Discrimination Convention and the ICCPR,Footnote ⁶¹ and, ultimately, to construe the Racial Discrimination Act 1975 of Australia.Footnote ⁶² Interestingly, the Federal Court of Australia cited para. 66 of the ICJ’s decision in Diallo, as well as Article 38(1)(d) of the ICJ Statute, in consulting the CERD’s General Recommendation No. 20.Footnote ⁶³ Yet the court did not specify whether it intended to ascribe, as the ICJ did in paragraph 66 of Diallo, ‘great weight’ to the interpretation of the monitoring bodies.Footnote ⁶⁴

While there are abundant examples of judicial reference, the extent of substantive engagement varies depending on courts and judges. Illustrative in this regard is the comparison between UK and Canadian courts in a series of decisions concerning the interpretation of Article 14(1) of the Torture Convention.Footnote ⁶⁵ Both UK and Canadian courts disagreed with the CAT’s interpretation of the provision that a civil remedy ought to be made available for all acts of torture, including those committed outside the forum state,Footnote ⁶⁶ by limiting the scope of state immunity.Footnote ⁶⁷

While both UK and Canadian courts disagreed with the CAT’s treaty interpretation, there were differences in terms of the extent to which courts substantively engaged with the CAT’s position. In the House of Lords, judges rather summarily dismissed the relevance the CAT in Jones v. Saudi Arabia (2006).Footnote ⁶⁸ Lord Bingham noted that ‘[w]hatever its value in influencing the trend of international thinking, the legal authority of the Committee’s recommendation is slight’.Footnote ⁶⁹ In a similar vein, Lord Hoffmann found ‘no value’ in the Committee’s position.Footnote ⁷⁰ The disagreement of UK judges in Jones was referred to by the Canadian Supreme Court in Kazemi (Estate) v. Iran (2014).Footnote ⁷¹ The Canadian court, however, while disagreeing with the CAT’s interpretation, took a few more steps to provide substantive explanations as to why judges did not agree with the CAT’s interpretation.

In Kazemi, the Canadian Supreme Court admitted that ‘the Committee’s comments may be helpful for purposes of interpretation’,Footnote ⁷² by referring to its earlier decision in Suresh (2002) where the Supreme Court had consulted the CAT’s position.Footnote ⁷³ Yet the majority of the Canadian Supreme Court noted that the Committee’s comments, ‘despite their importance’, ‘should not be given greater weight than the pronouncements of states parties and judicial authorities’.Footnote ⁷⁴ The court observed that the CAT’s comments ‘do not override adjudicative interpretations’, such as those seen in Jones.Footnote ⁷⁵ ‘At best’, according to the highest court of Canada, the CAT’s comments ‘form part of a dialogue within the international community where no consensus has yet developed’ on treaty interpretation.Footnote ⁷⁶ The majority’s treatment of the CAT’s remarks is contrasted with the narrative of Justice Abella in dissent. She observed that the CAT’s ‘expertise lends support to the weight of its interpretation’,Footnote ⁷⁷ referring to the fact that the Committee had made critical remarks on Canadian legal practices.Footnote ⁷⁸ The narrative of the Canadian court was noteworthy in that the court explained how much weight it should give to the CAT’s treaty interpretation. While judges in the majority substantively engaged with the CAT’s position, the Supreme Court, at least in this specific case, regarded it as merely one of the opinions that the court may take into account.

6.4.2 Normative Pathway: Authorization to Consider

Domestic courts’ discretionary reference to treaty body findings is no doubt conditioned by domestic sociological and legal contexts. At the same time, it must be once again noted that international law also explains and justifies domestic courts’ discretionary engagement. Namely, states, and indirectly their courts, may consider the findings of UN human rights treaty-monitoring bodies as part of ‘supplementary means of interpretation’ under Article 32 of the Vienna Convention on the Law of Treaties.Footnote ⁷⁹

In fact, Article 32 of the Vienna Convention on the Law of Treaties has been mentioned by domestic courts in consulting treaty body findings. For example, in Minister for Immigration and Citizenship v. Anochie (2012)Footnote ⁸⁰ before the Federal Court of Australia, the judge consulted the HRC’s Views and General Comments Nos. 15 (on the position of aliens) and 31 (on the nature of the general obligation)Footnote ⁸¹ in the process of interpreting Australia’s non-refoulement obligations. The Federal Court explicitly elaborated upon the question of what materials the court may consult in interpreting the ICCPR.Footnote ⁸² The judge accepted, ‘upon reflection’, that ‘the Committee’s interpretation of the ICCPR is admissible’ in court for the interpretation of the treaty.Footnote ⁸³ The Federal Court suggested that its recourse to the HRC’s interpretation was justified by Article 40(4) of the ICCPR and Article 1 of the Optional Protocol.Footnote ⁸⁴ Article 40(4) serves as a legal basis for the HRC to issue General Comments,Footnote ⁸⁵ while Article 1 of the Optional Protocol empowers the Committee to receive and consider individual communications.Footnote ⁸⁶ On this basis, according to the Federal Court, the Committee’s Views and General Comments form part of ‘supplementary means of interpretation’ (under Article 32 of the Vienna Convention on the Law of Treaties).Footnote ⁸⁷ Equally, the Views and General Comments serve as ‘subsidiary means for the determination of rules of law’ (under Article 38(1)(d) of the Statute of the International Court of Justice).Footnote ⁸⁸

The characterization of treaty body findings as part of supplementary means leaves states (and their courts) to decide whether to consider a particular finding of the committees and how much weight states give to the committees’ interpretation. In the aforementioned Anochie, the Australian court noted that, given that the members of the HRC were supposed to be ‘persons of high moral character and recognized competence in the field of human rights’,Footnote ⁸⁹ the HRC’s output may form part of the ‘teachings of the most highly qualified publicists’ under Article 38(1)(d) of the ICJ Statute.Footnote ⁹⁰ On this basis, the Federal Court quoted para. 66 of the ICJ’s judgement in Diallo, in which the ICJ found that it ‘should ascribe great weight’ to the interpretation of the Committee.Footnote ⁹¹

6.5.1 Domestic Courts’ Practices

As noted in Section 6.4, states, and indirectly their courts, are authorized under international law to consider the findings of UN human rights treaty-monitoring bodies. At the same time, the survey of domestic court decisionsFootnote ⁹² indicates the existence of normative expectations beyond mere discretionary consideration. Some courts referred to a normative expectation to consider, both in and outside the context of case-specific responses to Views on individual communications.

For instance, in the Jamaican case of Lewis (2000),Footnote ⁹³ the Judicial Committee of the Privy Council observed that the HRC’s Views should be considered in case-specific contexts. The Lewis case involved appellants who had been sentenced to death by the Jamaican courts and had petitioned the HRC. According to the Privy Council, ‘[w]hen the report of the international human rights bodies is available that should be considered and if the Jamaican Privy Council do [sic] not accept it [then] they should explain why’.Footnote ⁹⁴ This observation is significant, in that the Privy Council found it necessary, not merely to consider Views, but also to provide explanation in case of disagreement. The Dutch Administrative High Court in its decision of July 2006 seems to have given an even stronger assertion in favour of Views. The Court regarded the Views of the HRC as non-binding, yet still ‘authoritative’, and noted that national courts could only deviate from the Views if justified by ‘compelling reasons’.Footnote ⁹⁵

These instances of judicial respect for Views do not alter the fact that domestic courts have a limited role in taking case-specific follow-up measures.Footnote ⁹⁶ In this sense, it is much more relevant to see how domestic courts navigate their pathways to the monitoring bodies outside case-specific contexts. Some judges were willing to indicate the existence of normative expectations – if not a strict obligation – for domestic courts to engage with the monitoring bodies’ interpretation when the courts interpret relevant treaty provisions. For instance, the Colombian Constitutional Court in 2004 characterized the CESCR as an ‘authorized interpreter’ of the Covenant.Footnote ⁹⁷ In the Test Trial Fund Clara Wichmann case of 2005, the Dutch court noted that the CEDAW is empowered to issue General Recommendations and that such Recommendations should be taken into account in the context of interpreting the Convention.Footnote ⁹⁸ In 2007, the Belize Supreme Court in the case of Cal noted that, given Belize’s commitments under the Racial Discrimination Convention, the government ‘should take this communication [country-specific Correspondence] seriously and respond accordingly’.Footnote ⁹⁹

Another noteworthy example is the German Federal Constitutional Court’s engagement with the CRPD’s Concluding Observations and General Comments in the Order of 26 July 2016.Footnote ¹⁰⁰ The case involved the provision of medical treatment to a woman against her natural will in circumstances where she suffered from mental and physical illnesses and was deemed unable to provide consent. The Federal Constitutional Court obliged the legislature to enact laws to allow coercive medical treatment in such cases. In holding that coercive treatment was compatible with the Convention on the Rights of Persons with Disabilities, the German court effectively disagreed with the CRPD’s General Comment No. 1, Concluding Observations on Germany, and Guidelines on Article 14, in which the CRPD had criticized the practices of custodianship and forced treatment for failing to respect disabled persons’ autonomy and will.Footnote ¹⁰¹ According to the Constitutional Court, these CRPD documents do not address the critical scenario involving persons who cannot form a free will.Footnote ¹⁰² While the German Federal Constitutional Court took a critical look at the CRPD’s observations, the court substantively engaged with the Committee’s position. Furthermore, the court notably observed that a national court, although it is not obliged to follow the CRPD,Footnote ¹⁰³ should deal with the CRPD’s opinions ‘in an argumentative way and in good faith’Footnote ¹⁰⁴ – as the German court seems to have done in this specific instance.

6.5.2 Normative Pathway: An Obligation to Consider and Its Variations

The aforementioned judicial narratives – such as those in Test Trial Fund Clara Wichmann in the Netherlands, Cal in Belize and the Order of 26 July 2016 in Germany – are nuanced. By no means do they elucidate an obligation to consider or give due consideration to certain types of findings. Yet the courts’ nuanced position ought to be understood in light of some of the limitations extant at the national level for domestic courts vis-à-vis legislative and executive bodies.Footnote ¹⁰⁵ Normative expectations expressed by judges cannot be separate from a contested obligation to consider, incumbent on states parties themselves. In discussing such an obligation, it is necessary to distinguish different types of treaty body findings.

6.6.1 Domestic Courts’ Practices

In contrast with the nuanced engagement of domestic courts with UN human rights treaty-monitoring bodies, the Spanish Supreme Court in its judgement of July 2018 (Judgment No. 1263/2018) has taken a different and dichotomous path.Footnote ¹³⁷ In this exceptional yet significant case, the Spanish highest court established the binding character of the Views of the CEDAW at the domestic level. The Supreme Court’s decision came after many years of legal battles by the appellant, González Carreño.Footnote ¹³⁸ Having been subject to physical and psychological violence by her partner, González Carreño filed a number of complaints in order to bring the abuses to the attention of the Spanish authorities.Footnote ¹³⁹ While local courts took some measures to protect the appellant, they did not fully take into account the risks that her partner could pose, not only to the appellant, but also to her daughter, Andrea.Footnote ¹⁴⁰ In May 2002, a Spanish local court allowed the partner, with respect to whom the appellant had obtained an order of marital separation, to visit their daughter Andrea without supervision.Footnote ¹⁴¹ In April 2003, during the scheduled visit, the daughter was shot by her father who eventually killed himself.

After the tragic incident, González Carreño went through a series of domestic court proceedings, trying to prove the pecuniary liability of the state which failed to protect her and her late daughter. From April 2004 to October 2010, her liability claims met rejection four times before Spanish courts.Footnote ¹⁴² Her constitutional claim was likewise rejected by the Constitutional Court in April 2011.Footnote ¹⁴³ Having exhausted domestic remedies, on 19 September 2012, González Carreño brought her petition to the CEDAW. The Committee rendered its Views on 16 July 2014, finding the Spanish government in violation of her Conventional rights.Footnote ¹⁴⁴ Having found a violation of the state’s obligations under the Convention,Footnote ¹⁴⁵ the Committee recommended Spain to provide compensation and conduct an exhaustive and impartial investigation.Footnote ¹⁴⁶ At the domestic level, however, the CEDAW’s recommendations in July 2014 did not result in any changes to the situation of the appellant. A year later, in July 2015, the CEDAW still expressed its concern about the ‘lack of follow-up to the Committee’s views’ on the part of the state party regarding González Carreño.Footnote ¹⁴⁷ Meanwhile, she launched a series of new administrative and judicial proceedings, ultimately before the Supreme Court, requesting the government to give effect to the CEDAW’s Views.Footnote ¹⁴⁸

In its judgement of 17 July 2018, the Spanish Supreme Court regarded the Views of the CEDAW as binding at the domestic level, ordering the government to pay €600,000 for moral damages suffered by the appellant.Footnote ¹⁴⁹ The Supreme Court reached such a conclusion on the basis of both international and domestic laws. With regard to the international legal basis, the Spanish court held that the Views of the CEDAW have a ‘binding/obligatory’ character.Footnote ¹⁵⁰ The court ascribed such a character to Views, despite its acknowledgement that the CEDAW Convention does not oblige states parties to adopt any specific procedures in order to give effect to Views.Footnote ¹⁵¹ The court derived the ‘binding/obligatory’ character on the basis of Article 24 of the CEDAW Convention and Articles 7(4) and 1 of the Optional Protocol.Footnote ¹⁵²

The Supreme Court’s reasoning was further supported by domestic law. The court reiterated that the CEDAW Convention, on which the Committee and its Views are based, forms part of the domestic legal order under Article 96 of the Spanish Constitution.Footnote ¹⁵³ Pursuant to Article 10(2) of the Constitution, fundamental rights shall be interpreted in accordance with human rights treaties ratified by Spain.Footnote ¹⁵⁴ An important aspect of the court’s reasoning was the manner in which the court invoked Article 9(3) of the Spanish Constitution. The provision guarantees ‘the principle of legality and the normative hierarchy’, according to which international obligations relating to the execution of the decisions of the CEDAW form part of the Spanish internal order and enjoy a hierarchical position above ordinary domestic law.Footnote ¹⁵⁵ On this basis, the Supreme Court observed that the Convention and the Views ‘can and should be a decisive element’ in proving the possible infringement of the fundamental rights of the appellant.Footnote ¹⁵⁶ While the Supreme Court emphasized the particularities of the appellant’s case, the court took the position that the CEDAW’s Views must be considered as a ‘valid basis’ for bringing a claim concerning the pecuniary liability of the state.Footnote ¹⁵⁷ Otherwise, as articulated by the Supreme Court, the ‘absence of a specific procedure for executing’ the Views of the Committee constitutes ‘in itself a breach of a legal and constitutional mandate by Spain’.Footnote ¹⁵⁸

The Spanish Supreme Court’s reasoning pertains only to the CEDAW’s Views on individual communications, and not to other types of findings. Yet it would be good to reiterate once again that each monitoring body engages with its own previous findings. In the CEDAW’s Views in Angela González Carreño v. Spain, the Committee’s reasoning built on its General Recommendation No. 19 (1992),Footnote ¹⁵⁹ in which the CEDAW had made it clear that states ought to act with due diligence to prevent violations involving the acts of private persons.Footnote ¹⁶⁰ In Angela González Carreño v. Spain, the Committee found the violations of the Convention, ‘read jointly with … general recommendation No. 19 of the Committee’.Footnote ¹⁶¹ In other words, by according legal binding effect to Views, the Spanish Supreme Court in the judgement of July 2018 augmented the normative relevance of other CEDAW findings at the domestic level.

6.6.2 Normative Pathway: An Obligation to Comply

The Spanish Supreme Court’s identification of the binding character of the Views of the CEDAW resembles the draft version of the HRC’s General Comment No. 33 concerning the general obligations of states parties. In an early draft of what became the HRC’s General Comment No. 33, the HRC characterized its role as an ‘authentic interpreter’ of the CovenantFootnote ¹⁶² and regarded its Views as exhibiting ‘most of the characteristics of a judicial decision’.Footnote ¹⁶³ Also, in the draft version, the HRC translated the obligation to cooperate with the Committee as entailing ‘an obligation to respect the views of the Committee in the given case’.Footnote ¹⁶⁴ The HRC is not the only body that attempted to put forward an imperative tone. Within the CAT, one of its members observed that, ‘[w]hile the Committee’s decisions were not strictly mandatory, States parties had an obligation to comply with them in good faith’, which also justifies the CAT’s follow-up mechanism.Footnote ¹⁶⁵

The imperative vocabularies used in the draft version of General Comment No. 33 met with criticisms from several states parties.Footnote ¹⁶⁶ In the end, the wording of the final version of General Comment No. 33 was revised, including the critical phrase ‘authentic interpreter’.Footnote ¹⁶⁷ The draft version of General Comment No. 33 was an attempt to creatively translate a procedural duty to cooperate with the Committee, based on the good faith obligation, into the substantive obligation to respect the Views of the HRC.Footnote ¹⁶⁸ Such an attempt was not successful in 2008, at least in the context of the HRC.

In the judgement of July 2018, the Spanish Supreme Court by no means characterized the CEDAW as an authentic interpreter. In fact, the Spanish Constitutional Court reiterated in 2002 that the HRC was not a judicial organ and that the Views of the HRC could not represent the ‘authentic interpretation’ of the ICCPR.Footnote ¹⁶⁹ The crux, however, is that the Spanish Supreme Court’s reasoning in 2018 was in part based on the state party’s obligation to take Views seriously. The Spanish court referred to not only Article 24 of the Convention, according to which states parties ‘undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention’.Footnote ¹⁷⁰ The Court also relied on Article 7(4) of the Optional Protocol, according to which the state party has dual obligations. Namely, the party ‘shall give due consideration to the views of the Committee, together with its recommendations’ and ‘shall submit to the Committee, within six months, a written response’.Footnote ¹⁷¹ As noted in Section 6.5.2.1, these dual obligations are enunciated for the CESCR and the CRC as well.Footnote ¹⁷² Overall, the reasoning of the Spanish highest court demonstrates the breadth of what can be offered through the obligation to consider. After the lengthy administrative and judicial proceedings involving the victim of the state’s neglect, the obligation to consider has reached the point where no further deliberation may be welcome.

7.2.1 Competing Interests

Societal actors’ interests are a first potential determinant of entangled legalities.Footnote ¹⁵ From a rational choice perspective, international investment arbitration participants – foreign investors, host governments, investment arbitrators, lawyers and non-governmental organizations (NGOs) – act rationally to maximize their self-interest.Footnote ¹⁶ Given the competition of interests and concerns involved, conflicting demands and priorities are bound to condition whether and how norms will be brought together or kept apart.Footnote ¹⁷ This outcome may depend on actors’ ‘prudential reasons-for-action’ – different actors will shape forms of relation depending on their own expected gains.Footnote ¹⁸

Since ‘states, investors, and NGOs often favour different paradigms in light of their divergent normative interests and agendas’,Footnote ¹⁹ these interests and agendas will also determine what weight they will give to the legalities at play. I assume that the interest of the two disputing parties – foreign investor and responding state – is to win the dispute. As investors argue ‘for broad investor rights’,Footnote ²⁰ we can expect them to defend their own interests from the potentially disruptive effects of human rights protecting the interests of other individuals or groups. Empirical findings suggest that foreign investors have benefited from investment litigation. Particularly since the second half of 1990s, they have gained from using investment claims against poor and rich governments.Footnote ²¹ The stability and predictability of international investment protection – legally sanctioned through international arbitration – has been economically beneficial to international investors. It seems that the status quo has protected foreign investors’ interests against the preferences of other societal actors.Footnote ²² Given the beneficial environment in which investors bring their claims, couplings with bodies of norms of different origin may open unpredictable scenarios. As rational actors, foreign investors will seek to resist this outcome.Footnote ²³ However, in cases in which it is convenient to them, they may also entangle their rights with human rights norms, perhaps to enhance the persuasiveness of their claims against the host government.Footnote ²⁴ States, too, may expect gains from these types of connections. Frequently, and especially in times of economic crises, linkages with human rights might strengthen their defences against investor’s claims. Countries with limited financial resources may use these linkages as a rhetorical strategy to expand their ‘regulatory authority’Footnote ²⁵ and avoid costly liability or reduce the amount of compensation due to the investor. Finally, NGOs (other than business associations) and human rights experts may entangle international investment and human rights law to advance the interests of affected outsiders like local communities and human rights holders.

Investment arbitration insiders’ decision-making may also respond to constraints and incentives.Footnote ²⁶ Previous empirical analysis has concluded that arbitrators of the International Centre for Settlement of Investment Disputes (ICSID) form a ‘network’ that ‘reinforces prevailing norms and behaviours and insulates its most important members from outside influence’.Footnote ²⁷ Beyond international arbitrators, legal counsel, expert witnesses and tribunal secretaries have also become particularly influential actors.Footnote ²⁸ In conditions of professional competition, the members of the investment arbitration industry may have professional incentives to distance human rights. As co-operators of the system, they will have material incentives to defend their legal specialization and their role as the masters of its law. From their perspective, investment arbitration may be a specialized profession with its own ‘ethos’ and associated relevant frameworks and practices.Footnote ²⁹ Therefore, distancing human rights may be needed to secure reputation from other members of their community of practice and to continue their practice as usual.Footnote ³⁰ Yet empirical work has found that over time there have been incentives for these legal experts to be reflexively open to societal demands. As investor–state arbitration faces a legitimacy crisis, some arbitrators may act strategically to ‘manage consciously or unconsciously the legitimacy of arbitration’ by showing ‘greater deference to respondent states’.Footnote ³¹ To do so, they might seek to adjust their decision-making in response to the claims and interests of dominant states like the European Union, the United States and China, but also to those of some Latin America countries that have been vocal against investment arbitration. In this context, investment arbitration officials might benefit from linkages with norms with strong social backing like human rights law to strengthen their own legitimacy.Footnote ³²

7.2.2 Ideational Contexts

A second possible cause of entanglements is the ideational context in which they come about. In investment arbitration, this context is shaped by multiple factors, including actors’ ‘shared understandings’ of international investment law and their role in the ‘community of practice’ they form a part of.Footnote ³³ ‘Epistemic communities – that is, social groups of professionals and academics that shape the discursive policies’Footnote ³⁴ in investment arbitration have played a role in the formation of those understandings,Footnote ³⁵ with possible implications for the ‘interface norms’ and practices emerging from the inside of that community of practice and its discourse. From this perspective, situations of enmeshment may be driven by how different actors regard international investment law, for example by adopting primarily an international public law, commercial arbitration or public law approach.Footnote ³⁶

Investment tribunals will often understand their role as strictly confined to the determination of whether foreign investors’ rights have been violated or not. In that determination, arbitrators will see themselves primarily as interpreters of the legal basis creating those rights (e.g. a treaty), with implications for their room for manoeuvre to create relations with bodies of norms perceived as external. ISDS participants’ choice of ‘conceptual maps’Footnote ³⁷ is likely to impact whether and how legalities are brought together or kept apart and with which effects. This choice may depend upon actors’ background and projects. For instance, investment arbitrators with knowledge in public international law have drawn on the judgements of the ICJ, while others with experience in trade law have relied on the World Trade Organization (WTO) jurisprudence.Footnote ³⁸ The same holds true for arbitrators emphasizing a ‘universalistic’ versus ‘particularistic’ perspective of the interaction between ‘general international law’ and other ‘special regimes’. For example, a former ICJ judge has situated ‘international investment law’ within ‘general international law’ in keeping with his vision about the relationship between ‘special regimes’ within the wider ‘universe of international law’.Footnote ³⁹ Similarly, lawyers believing in a unified ‘international legal system’ as opposed to a ‘fragmented’ one will consider linkages between international investment and human rights law with less hesitancy.Footnote ⁴⁰

However, previous sociological analysis of the ‘investment arbitration culture’ has concluded that lawyers with a strong background in public international law are the minority in investment arbitration settings while the ‘commercial arbitration paradigm’ appears as the dominant one.Footnote ⁴¹ Empirical work on the composition of investor–state arbitral tribunals at ICSID has found that these tribunals comprise individuals – mostly men from the USA and Europe – whose conception of law reflects their particular training and professional background.Footnote ⁴² Here, international ‘business lawyers’ with competence in ‘commerce, industry or finance’ appear as the dominant players.Footnote ⁴³ The investment arbitration community seems to have little knowledge of human rights law due to the particular ‘sociocultural features’ and processes of socialization of that community.Footnote ⁴⁴ Indeed, ‘culture influences how people think, communicate, behave’,Footnote ⁴⁵ including how they situate themselves in relation to different constituencies and their legalities. However, legal culture and socio-psychological influencesFootnote ⁴⁶ are not the only elements of the ideational context in which arbitrators’ decision-making is situated. Empirical work has found that arbitrators’ ‘policy preferences’, including their ideology, also shape their decisions.Footnote ⁴⁷ As a consequence of the ‘set of values and beliefs’Footnote ⁴⁸ that seem dominant in investment arbitration we might expect resistance to tight linkages with human rights,Footnote ⁴⁹ although it is possible that investment arbitrators’ ‘background preferences’Footnote ⁵⁰ might begin to change.

7.3.1 Varying Forms of Relation

As claims about human rights have begun to be heard in investment arbitration, ISDS participants have faced the challenge of ‘navigating’ between multiple bodies of norms.Footnote ⁵¹ Influenced by the discourse of institutions like the World Bank-based ICSID, the Permanent Court of Arbitration (PCA) or the United Nations Commission on International Trade Law (UNCITRAL), ISDS has become one among many governance sites where ‘horizontal’ and ‘vertical’ interactions between legal orders have been articulated over time. At this site, ad hoc investment arbitrators have become key decision-makers in setting the boundaries of ‘international investment law’.Footnote ⁵² While scholars have observed an increase in the number of actors’ statements referring to human rights norms in investment litigation,Footnote ⁵³ we know less about the forms of relation constructed through those claims. In Section 7.3.2, I draw on a selection of statements to analyse the ways in which different actors have brought bodies of norms in relation in ISDS.

7.3.2 Hierarchies and Separation

Foreign investors and states have dealt with multiplicity by relying on hierarchies, as exemplified in the CMS Gas Transmission Company case.Footnote ⁵⁴ The dispute arose after Argentina adopted measures to protect the welfare of the population, including by guaranteeing access to public services, amid an economic crisis at the end of the 1990s. At the time, CMS, a US corporation with an investment in the gas transportation sector of Argentina, claimed it suffered financial losses as a result of those exceptional measures and invoked its rights under the Argentina–United States BIT to protect its interests through ICSID arbitration. While Argentina and CMS disagreed over the ultimate source of authority to decide their dispute, they both referred to norms about hierarchy to order the relation between bodies of norms. Particularly contentious was the question of the ‘applicable law’.Footnote ⁵⁵ While the investor regarded the BIT and international law as lex specialis, Argentina not only considered its constitutional order relevant but also superior to the BIT. Drawing on its constitution, public law and international customary rules on state of necessity, Argentina said that obligations to safeguard constitutional rights prevailed over its BIT commitments, including investor’s fair and equitable treatment (FET) claims.Footnote ⁵⁶ Argentina situated and construed the relation between the legalities at play within an order where constitutional public law and human rights had primacy over investment treaties.

Drawing on a ‘more pragmatic and less doctrinaire’ approach and ‘taking the facts of the case and the arguments of the parties into account’,Footnote ⁵⁷ the tribunal concurred with Argentina that both the international and the domestic legal orders applied to the dispute. It found ‘a close interaction between the legislation and the regulations governing the gas privatization, the Licence and international law, as embodied both in the Treaty and in customary international law’.Footnote ⁵⁸ While the tribunal emphasized that the multiple legalities were ‘inseparable’, it also specified that they were to be applied ‘to the extent justified’.Footnote ⁵⁹ As a consequence, the tribunal decided against Argentina that ‘while treaties in theory could collide with the Constitution, in practice this is not very likely’Footnote ⁶⁰ and ‘in this case, the tribunal does not find any such collision’ partly because ‘there is no question of affecting fundamental human rights when considering the issues disputed by the parties’.Footnote ⁶¹ The tribunal highlighted that ‘the specific domestic legislation of Argentina and rules of international law applied by the Tribunal will be discussed in connection with the issues contended’.Footnote ⁶² By assigning a specific ‘role’ to domestic and international law in relation to the ‘facts’ of the dispute, the tribunal created distance between these legal orders. It insisted on regarding the two laws as separate legal orders that could simultaneously apply in the circumstances of the case, rather than creating a hierarchical relation between them, as if the obligations owed to the investor and to the Argentinian population could run in parallel.

7.3.3 Proximity and Distance

NGOs have played an important role in tying human rights and ISDS. For example, they have highlighted conflicts between human rights and investment protection norms, as reflected in the Glamis dispute.Footnote ⁶³ The case was initiated by a Canadian mining company, investing in the United States, claiming that the mandatory backfilling requirements adopted by California violated its right of FET and of protection from ‘expropriation without compensation’, under chapter 11 of the North American Free Trade Agreement (NAFTA).Footnote ⁶⁴ Indigenous communities inhabiting the surrounding areas were affected by the investment project.

Although the United States remained silent on the relation between NAFTA chapter 11 and Indigenous rights, representatives from the Quechan Indian Nation situated the dispute within a wider juridical context including the international legal framework for the protection of Indigenous cultural heritage rights.Footnote ⁶⁵ They argued that the tribunal ought to ‘be guided by’ Indigenous people’s norms when interpreting investors’ rights to avoid an ‘arbitrary and discriminatory decision’ that would violate ‘international law’.Footnote ⁶⁶ They employed the flexible interface norm of ‘taking into account’, expressed in article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), through which they weaved together article 1105 (minimum standard of treatment), article 1110 (compensation for expropriation) of NAFTA and the rights of Indigenous people. They also referred to the need of ensuring consistency with ‘public international law’ within which they situated the multiple legalities. Yet the tribunal’s interpretation of its mandate had the effect of narrowing down the relevant laws at play, thereby creating distance from other bodies of norms.Footnote ⁶⁷ Based on the understanding that its task was to undertake a ‘case-specific arbitration with awareness of the NAFTA Chapter 11 system’,Footnote ⁶⁸ the tribunal refused to ‘decide many of the most controversial issues raised in this proceeding’Footnote ⁶⁹ and therefore did not consider the multiplicity of laws that the Quechan people invoked. Eventually, the tribunal dismissed the claims of the investor but also disregarded the claims by the Quechan people by placing emphasis on its ‘case-specific mandate’ and on the ‘issues presented’ by the parties to the dispute.Footnote ⁷⁰ The interpretation of investment treaty standards in the ‘context’ of human rights norms was on display in the Suez case,Footnote ⁷¹ in which foreign investors brought claims against Argentina under three BITs.Footnote ⁷² In this case, investors’ rights to ‘full protection and security’ and ‘fair and equitable treatment’ were pitched against Argentina’s human rights obligations. While the investors deemed human rights ‘irrelevant’ to the determination of whether the obligations under the BITs had been breached,Footnote ⁷³ five NGOs brought the right to water and to life to bear in the definition of the ‘applicable law’ for the ‘proper adjudication of the dispute’ and for the ‘proper application’ of fair and equitable treatment and indirect expropriation.Footnote ⁷⁴ They maintained that the case involved a conflict between the state’s duty to protect the right to water and its obligations to the investorFootnote ⁷⁵ and that the former norm prevailed over the latter.Footnote ⁷⁶ They ordered the conflicting norms by invoking the requirement ‘not to interpret certain rules in isolation from other parts of the legal order’.Footnote ⁷⁷ According to the NGOs, the interpretation of the BIT had to take human rights law ‘into account’. Similarly, Argentina framed human rights law as the ‘context’ in which the BIT standards had to be interpreted.Footnote ⁷⁸ The tribunal’s determination of the relative weight of the bodies of norms at play was different from that of Argentina and the NGO. In contrast to the Glamis tribunal, which had chosen to ignore the multiplicity of laws, the Suez tribunal interpreted them as separate layers moving in parallel directions and simultaneously applicable to the factual circumstances of the case.Footnote ⁷⁹ As a result, it insisted on keeping a great distance between bodies of norms, which it perceived as separate and independent legal units. This particular way of ordering bodies of norms may indeed be read as a ‘general reluctance […] to openly decide potential conflicts between investment protection and public policy objectives’.Footnote ⁸⁰

7.3.4 Taking into Account

A selected integrationist perspective on the relation between investment treaty norms and human rights was articulated in the Al-Warraq case.Footnote ⁸¹ The dispute originated from criminal proceedings in absentia by Indonesian authorities against an investor from Saudi Arabia holding shares in an Indonesian bank. The investor brought claims against Indonesia under a multilateral investment treaty (OIC Agreement)Footnote ⁸² and used international human rights law to interpret its provisions. Drawing on the ‘principle of systematic integration of international law norms’,Footnote ⁸³ the investor brought the right to a fair trial under article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee’s General Comment 13, regional human rights institutions’ pronouncements on ‘presumption of innocence’,Footnote ⁸⁴ the ‘basic rights’ and the fair and equitable treatment standard under the OIC Agreement into relation.Footnote ⁸⁵

The tribunal concurred with the investor that certain civil and political rights were part of investment protection norms, but it distanced the notion of ‘basic rights’ under the OIC Agreement from human rights norms by highlighting the particular ‘object and purpose’ of the former (i.e. investment promotion and protection).Footnote ⁸⁶ However, the tribunal construed greater proximity between the FET standard and the norm against ‘denial of justice’ under various human rights instruments, in particular article 14(3) of the ICCPR. Eventually, the tribunal decided that ‘denial of justice constitutes a clear violation of the FET standard’.Footnote ⁸⁷ The tribunal brought ICCPR norms and the FET standard in relation after claiming that ‘the ICCPR is now regarded as a part of “general international law”’, which suggests that ‘general international law’ was used as an ‘overarching norm’ to connect ICCPR norms to the investment legal order.Footnote ⁸⁸ The Urbaser disputeFootnote ⁸⁹ between foreign investors and Argentina, related to a concession for water and sewage services under the terms of the Spain–Argentina BIT, partly redefined the openness of ISDS to human rights. The question of the relation between international investment agreements and human rights emerged in the context of a counterclaim by Argentina seeking compensation for damages from the investor, which affected basic human rights.Footnote ⁹⁰ In contrast to the Suez dispute, investors did not consider human rights ‘irrelevant’ but distanced them through interpretive practices. The investors claimed that human rights were duties of the state rather than of private companies and said that Argentina was under the ‘obligations regarding the population’s right to water, and its obligations towards international investors’, which ought to be fulfilled ‘simultaneously’,Footnote ⁹¹ reflecting the approach of the CMS and Suez awards. The investors also drew on the precedent of the Biloune v. Ghana dispute, in which the tribunal decided that ‘a ruling on human rights violations is outside the scope of its jurisdiction’.Footnote ⁹² While the investors emphasized the BIT, claiming that its ‘provisions, principles and rights’ were ‘essential to resolve the dispute’, Argentina maintained that the ‘applicable law’ consisted of the ‘BIT, Argentine law and general international law’ and that they ought to be applied ‘jointly and harmoniously’.Footnote ⁹³ According to Argentina, the BIT was not ‘a set of self-contained rules’ and therefore ‘international law in general’ had to be applied, including ‘imperative international law’, which trumped standards of investment protection.Footnote ⁹⁴ The Urbaser tribunal responded to this situation of multiplicity by situating the legalities at play within an overarching structure. It found that ‘the BIT does not represent, in the view of the Contracting Parties and its clear text, a set of rules defined in isolation without consideration given to rules of international law external to its own rules’.Footnote ⁹⁵ Drawing on the Tulip annulment decision,Footnote ⁹⁶ the tribunal listed various international human rights instruments followed by article 31(3)(c) of the VCLT and decided that ‘the BIT cannot be interpreted and applied in a vacuum’ and that, while it ought to be ‘mindful of the BIT’s special purpose as a Treaty promoting foreign investments’, ‘it cannot do so without taking the relevant rules of international law into account. The BIT has to be construed in harmony with other rules of international law of which it forms part, including those relating to human rights’.Footnote ⁹⁷ Reliance on ‘overarching norms’, which the tribunal implicitly construed by interpreting the provisions on applicable law under article X(5) of the BIT and article 42 of ICSID Convention, enabled the tribunal to place the BIT in ‘the overall system of international law’.Footnote ⁹⁸ Conflicting statements about the relation between international investment and human rights norms were brought forward in the Bear Creek dispute,Footnote ⁹⁹ involving claims by a Canadian mining company investing in a mining project in Peru under the investment chapter of the Canada–Peru Free Trade Agreement (FTA). The investment project generated acute protests by affected Indigenous communities, including the Aymara population, inhabiting the surrounding area and demanding respect for their human rights. With regard to the applicable law to the dispute, the investor and the state focused on the FTA and applicable rules of international law.Footnote ¹⁰⁰ However, two civil society organizations presented a description of the facts and of the law which highlighted connections between the Aymara population’s Indigenous rights and the FTA provisions.Footnote ¹⁰¹ The two organizations argued that Indigenous rights had to be taken into account when interpreting the FTA.Footnote ¹⁰² In his dissenting opinion, co-arbitrator Sands drew on the Urbaser award to argue that consultation requirements in article 15 of the International Labour Organization (ILO) Convention 169 were part of the ‘applicable rules of international law’ which the tribunal could ‘take into account’.Footnote ¹⁰³ By failing to carry out its obligations vis-à-vis the Aymara peoples’ ‘rights under international law’, the investor contributed to the demise of the investment. Consequently, the amount of damages to be awarded was to be reduced by half.Footnote ¹⁰⁴ Although co-arbitrator Sands’ dissenting opinion in Bear Creek and the award in Urbaser placed a different degree of emphasis on human rights,Footnote ¹⁰⁵ both statements strengthened the expectation that international investment agreements cannot be interpreted in isolation from other parts of the legal order.Footnote ¹⁰⁶ Claims about the primacy of human rights over investment protection norms were formulated by the state in the South American Silver dispute, related to an investment in mining activities in Bolivia under the terms of the United Kingdom–Bolivia BIT. The dispute stemmed from measures adopted by Bolivia to protect Indigenous communities inhabiting the areas surrounding the investment project. The parties to the dispute disagreed over the relation between the BIT and international law and between the BIT and the Bolivian national legal system. The investor deemed the BIT to be the ‘primary source of law and lex specialis, as supplemented by general principles of law, as needed’.Footnote ¹⁰⁷ It distanced domestic law, arguing that it did not form part of the ‘law applicable to the merits of the arbitration proceeding’Footnote ¹⁰⁸ and contended that recourse to supplementary means to interpret the BIT was ‘unnecessary’.Footnote ¹⁰⁹ By contrast, Bolivia demanded that a wider body of norms be taken ‘in consideration’ when interpreting the applicable law.Footnote ¹¹⁰ The state said that its constitution and international norms on the protection of Indigenous rightsFootnote ¹¹¹ were ‘supplementary’ to the BIT and prevailed over norms in investment treaties in case of conflict.Footnote ¹¹² The investor contested this representation, arguing that the invoked rights could not be taken into consideration by the tribunal since they were not binding on the United Kingdom and did not constitute customary international law or general principles of law.Footnote ¹¹³ Having identified the BIT as ‘the principal instrument’Footnote ¹¹⁴ for resolving the dispute, the tribunal found that the tool of ‘systemic interpretation’ under article 31(3)(c) of the VCLT is not limitless and must be applied with caution.Footnote ¹¹⁵ According to the tribunal, ‘this principle must be applied in harmony with the rest of the provisions of the same article and cautiously, in order to prevent the tribunal from exceeding its jurisdiction and applying rules to the dispute which the Parties have not agreed to’.Footnote ¹¹⁶ Eventually, the tribunal concluded that Bolivia had to pay compensation and compound interests to the investor but dismissed all other claims of the investor.

7.3.5 Constrained Entanglements

The previous analysis of ISDS cases suggests that strategic, institutional and cultural factors impacted the way actors brought international investment law and ‘other’ legalities in relation. In a context with high institutional barriers to access and with an unequal representation of the interests involved, certain claims were accorded greater weight than other, competing ones. In particular, investment arbitrators and lawyers representing investors and states played a dominant role, whereas the voice of other affected polities was silenced.

The ‘tension between proximity and distance’Footnote ¹¹⁷ in investment treaty disputes was shaped by the interplay of a limited number of actors. Understandably, with the exception of the Al-Warraq dispute, investors had clear incentives to keep human rights law at bay in investment disputes. By contrast, states had stronger incentives to draw on that law to formulate their defences. Non-disputing parties and actors not represented in ISDS – workers, Indigenous groups, poor communities – had limited access to inform investment arbitrators’ decisions. In the Bear Creek dispute, arbitrators denied a request for participation as amicus curiae by one academic institution, showing little consideration for actors other than the parties to the dispute, including disputes generating ‘public interest’.Footnote ¹¹⁸

As a consequence, entangled legalities in ISDS have mainly reflected the preferences of foreign investors, states and investment arbitrators. From this perspective, greater participation from affected outsidersFootnote ¹¹⁹ may lead to a greater variety of claims and forms of relation than the status quo allows. Yet this is unlikely to lead to entanglements that would be independent from the institutional and ideational structures of investment arbitration – enhanced participation would still operate within structural constraints.

Indeed, the analysis of ISDS cases has also shown that the multiplicity of laws was framed from the perspective of the dominant interpretive and legal frames of reference in the investment arbitration context and in conformity with the interface norms recognized within the ISDS ‘community of practice’.Footnote ¹²⁰ In particular, investment tribunals approached multiplicity from the standpoint of international investment law by relying on the principle of ‘systemic integration’ in article 31(3)(c) of the VCLT.Footnote ¹²¹ This principle was used to tie bodies of formal international law that were recognized by actors as the relevant law. Through this integrating principle of treaty interpretation, lawyers and arbitrators connected international investment and human rights norms by situating them within the ‘system’ of general international law as opposed to framing them as two separate legal systemsFootnote ¹²² and ordering them through ‘reception norms’.Footnote ¹²³ The dominant structures of relation observed reflect the institutional background in which ISDS lawyers have been trained and work.Footnote ¹²⁴ ISDS professionals’ mindsets and the ‘discursive policies’Footnote ¹²⁵ in which they are situated may contribute to explaining the particular modes of ordering multiplicity in ISDS. These situated jurists seem to share a particular ‘way of thinking’ about the law of foreign investment arbitration, which shapes the way they practice it in relation to ‘foreign’ legalities.Footnote ¹²⁶ These actors operate in a professional environment that does not create strong incentives to question the dominant schemes for thinking and practising law, much less to depart from them. For example, these specialists have to behave in conformity with the rules of the game of the institutional site in which they operateFootnote ¹²⁷ in order to pursue or maintain reputation.Footnote ¹²⁸ These rules include shared presuppositions about the nature of ‘international investment law’, its ‘sources’, institutional circumstances and the ‘rituals’Footnote ¹²⁹ of international arbitration. According to the recognized norms of investment arbitration, the rules on jurisdiction, applicable laws and consent of the parties have narrowed the space for linking bodies of norms in practice.Footnote ¹³⁰ For example, the doctrine of the limitation of tribunals’ jurisdictionFootnote ¹³¹ to ‘investment disputes’ has enabled adjudicators to create distance between bodies of norms and strengthen the autonomy of their legal order from the interference of competing legalities. Similarly, international investment lawyers perceive that there must be ‘legal grounds’ for tribunals to consider human rights norms.Footnote ¹³² ISDS insiders may benefit from the dominant mode of ordering legalities in this setting – therefore there seem to be fewer incentives to change the status quo than to maintain it.

In summary, the dominant interests, institutional structures and ‘legal culture’Footnote ¹³³ in ISDS seem to have influenced the way situated actors have ordered multiplicity in that setting. However, ultimate conclusions on the implications of actors’ ideational context and strategic interests for the particular forms of enmeshment observed seem premature. For example, it is not clear whether investment arbitrators’ background had more influence than the material incentives associated with the international investment dispute settlement culture.Footnote ¹³⁴ Not only did arbitrators with expertise in public international law decide in favour of foreign investors in some cases, they also kept investment protection and human rights norms at a great distance from each other, against our expectations.Footnote ¹³⁵ This finding suggests that arbitrators’ proficiency in public international law and human rights law would not automatically translate into an outcome where the distance between bodies of norms is reduced, as other factors may be simultaneously at play. For example, arbitrators’ interests, including reappointment as arbitrator, may have had greater impact in shaping arbitrators’ decision-making. They may have created proximity or distance between bodies of norms to pursue their own goals. In this respect, the potentially ‘addictive’Footnote ¹³⁶ practice of investment arbitration and the high financial stakes involved in it may have played a greater role than, or at least interplayed with, the legal background of its participants in the formation of relations between bodies of norms. From this perspective, to ‘properly train’ the future operators of ISDSFootnote ¹³⁷ may indeed be necessary but perhaps not enough.

7.4.1 Beyond ISDS

Thus far, I have contextualized interpretative practices through which international investment and human rights norms have been brought in relation in investment adjudication settings. The statements of investment arbitrators and of the lawyers representing foreign investors and states have been given greater weight than those of other stakeholders, partly due to the dominant interests and ideational context of investment treaty arbitration. Civil society input has remained limited and only a few legal specialists have been authorized to determine the relative weight of legalities at play at that site. Yet ISDS is not, and should not be, the only global governance site for determining relations between these legalities. Rather, the claims of institutions and affected actors ‘at the margins’ of that context and its discourse should also be accounted for when appraising the enmeshment of the overall order. Against the background of the so-called ‘legitimacy crisis’ of international investment law,Footnote ¹³⁸ expressions of contestation have encouraged a reform of investment agreements and investment dispute settlement. The reform process could pave the way for greater civil society input than the status quo allows, thereby creating room for closer proximity with other legalities. In this context, struggles for change within and from international investment law are situated at multiple sites and involve different actors with competing interests and approaches to reform.

7.4.2 Reforming Investment Agreements

At sites of treaty negotiation, states have responded to the legitimacy crisis of international investment law by rearticulating their relation with it through different lawmaking practices. While countries like Ecuador, Venezuela, Argentina and Bolivia have withdrawn or intended to withdraw from the ICSID Convention and BITs, others have amended existing investment treaties.Footnote ¹³⁹ The wording of these texts indicates that state parties have given human rights some consideration.Footnote ¹⁴⁰ Similar references have appeared in ‘new generation international investment agreements’, originally championed by the United States and Canada and subsequently adopted by the EU.Footnote ¹⁴¹ The concept of ‘governments’ right to regulate’, included in the 2017 Colombia model BIT as well as in the 2019 Dutch Model BIT,Footnote ¹⁴² has opened a space to construe connections with states’ obligations under international human rights law.Footnote ¹⁴³ The Comprehensive Economic Trade Agreement (CETA) between the EU and Canada has brought together investment protection, trade and sustainable development and labour and environmental protection norms, and article 8.9 of its investment protection chapter reaffirms state parties’ ‘right to regulate’.Footnote ¹⁴⁴ Similar lawmaking practices, driven in particular by the interests of economically powerful countries, include ‘mega-regulation’ instruments like the Trans-Pacific Partnership that has incorporated environmental and labour norms, perhaps to address demands by civil society actors concerned with the impact of ISDS on social and environmental protection within domestic legal systems.Footnote ¹⁴⁵ Therefore, processes of investment treaty negotiations, especially if transparent and open to the participation of affected stakeholders,Footnote ¹⁴⁶ are potentially effective arenas for reshaping entanglements through textual references.

Yet, we should not read too much into these references as they tell us little about how relations with other, competing polities and their legal orders ought to be ordered.Footnote ¹⁴⁷ On the one hand, their relationship remains formally open and its shape will be determined only through political processes and the practice of societal actors. On the other hand, those references do not reflect the more contestatory claims of actors who challenge the very existence of international investment protection. While those provisions may enable linkages with ‘community interests’,Footnote ¹⁴⁸ it remains to be seen how the relevant decision-makers will weigh bodies of norms in practice. Under current structural circumstances in ISDS, characterized by a substantial preference for ‘stronger rather than weaker investor protection’Footnote ¹⁴⁹ and under-inclusiveness of relevant actors, a concrete change from dominant ways of dealing with multiplicity seems unlikely. Future practice might tell us more about the interface norms at play, and much is likely to depend on who the actors construing them will be. However, efforts at rewriting investment treaties may be seen as attempts to respond to growing voices of contestation stemming from other sites in the overall order.

7.4.3 Human Rights Claims

Similarly to the main type of interface norms construed in investment adjudication contexts, human rights experts have approached investment protection norms through overarching norms, which might be explained by taking account of the ideational and institutional context in which they operate. For example, in the Sawhoyamaxa case,Footnote ¹⁵⁰ involving a dispute over human rights of Indigenous communities in Paraguay, the Inter-American Court of Human Rights articulated its view of the relationship between international investment law and the Inter-American Convention on Human Rights. Paraguay sought to justify non-enforcement of the Indigenous people’s property rights by arguing that the land, which had been bought by a German investor, was protected under an investment treaty between Paraguay and Germany.Footnote ¹⁵¹ Yet the court regarded the Inter-American Convention as the ultimate frame of reference and accorded it more weight than investment agreements. It ruled that ‘the enforcement of bilateral commercial treaties […] should always be compatible with the American Convention, which is a multilateral treaty on human rights that stands in a class of its own and that generates rights for individual human beings and does not depend entirely on reciprocity among States’.Footnote ¹⁵² Under the presidency of Judge Cançado Trindade, the court’s interpretation reflected a strong commitment to human rights law.

Similarly, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has approached investment agreements through ‘overarching norms’, reflecting a conception of order under international law where human rights are accorded primacy.Footnote ¹⁵³ For example, the former independent expert on the promotion of a democratic and equitable international order has claimed that ‘in case of conflict, only the highest public courts can decide in the light of the totality of international law. Until amended by States Members, the Charter of the United Nations remains the principal treaty that determines the structure and functioning of the international order.’Footnote ¹⁵⁴ Therefore ‘[s]tates must ensure that all trade and investment agreements recognize the primacy of human rights and specify that, in case of conflict, human rights obligations prevail’.Footnote ¹⁵⁵ In the eyes of the independent expert, international investment norms and human rights were to be integrated within a hierarchical form ordered through the principle of binding character of treaties, good faith and in conformity with article 103 of the United Nations Charter.Footnote ¹⁵⁶

In its General Comment 24, the UN Committee on Economic, Social and Cultural Rights articulated a similar hierarchical conception of order between competing legalities.Footnote ¹⁵⁷ The Committee claimed that: ‘[s]tates parties should identify any potential conflict between their obligations under the Covenant and under trade or investment treaties, and refrain from entering into such treaties where such conflicts are found to exist, as required under the principle of the binding character of treaties’.Footnote ¹⁵⁸ The group of experts distinguished ‘investment treaties currently in force’ from ‘future treaties’. In the first case, interpretation ‘should take into account the human rights obligations of the state, consistent with Article 103 of the Charter of the United Nations and with the specific nature of human rights obligations’.Footnote ¹⁵⁹ In the second case, ‘[states parties] are encouraged to insert, in future treaties, a provision explicitly referring to their human rights obligations, and to ensure that mechanisms for the settlement of investor–state disputes take human rights into account in the interpretation of investment treaties or of investment chapters in trade agreements’.Footnote ¹⁶⁰ The Committee’s stance towards the investment protection suborder reproduced the Inter-American Court of Human Rights’ approach discussed in Section 7.4.3.

Over time, human rights specialists have combined ‘overarching norms’ with less imposing practices aimed at persuading states to take account of their human rights obligations when making new investment agreements. One example is the 2018 initiative ‘Crowd-Drafting: Designing a Human Rights-Compatible International Investment Agreement’.Footnote ¹⁶¹ Its promoters referred to a ‘human rights-based approach’ to international investment treaty-making.Footnote ¹⁶² Attempts at crafting a ‘human rights impact assessment’ norm, addressed both at states parties to international investment agreementsFootnote ¹⁶³ as well as companies as part of their due diligence obligations, fall within these accommodation strategies.Footnote ¹⁶⁴ The United Nations Conference on Trade and Development’s (UNCTAD) initiatives to investment law reform have adopted a similar approach, seeking to promote greater convergence with human rights and sustainable development norms, as exemplified by the UNCTAD’s Investment Policy Framework for Sustainable Development.Footnote ¹⁶⁵ Most recently, overarching norms seem to have informed the ongoing struggle for a new international ‘instrument’ on global business and human rights, as reflected in particular in article 14 of its second revised draft, which demands that investment agreements be consistent ‘with international law principles and instruments’.Footnote ¹⁶⁶

7.4.4 Reforming Investment Adjudication

The effects of entangled legalities have often been located in the Global South, in places where foreign investments affect local communities. At these sites, often characterized by a multilayered and scattered legal landscape where transnational and domestic bodies of norms contradict each other,Footnote ¹⁶⁷ local populations have mobilized human rights against the state and global capital.Footnote ¹⁶⁸ Local communities have contested the proximity of investment protection norms to their domestic legal order,Footnote ¹⁶⁹ but their claims have received little consideration in investment jurisprudence.Footnote ¹⁷⁰ In recent years, struggles against investment protection have become visible in the Global North, too. Particularly in Europe, citizens, environmental activists and other political actors have used contestatory mechanisms to distance investment treaties from their domestic legal orders. Protests and claims of political parties and NGOs against the intrusion of the Transatlantic Trade and Investment Partnership (TTIP), CETA and the ISDS norm into the European legal order and the constitutional order of EU member states have been one manifestation of this practice of resistance.Footnote ¹⁷¹ In this context, European institutions and courts, too, have become important actors. The European Commission’s proposal to replace ISDS with a multilateral investment court might open a space for a wider number of actors to create different forms of relations with human rights.Footnote ¹⁷² The Court of Justice of the European Union (CJEU) has recently shown a sign of resistance to investor–state arbitration by ruling that the ISDS provision in BITs between EU member states is ‘not compatible’ with EU law.Footnote ¹⁷³ By contrast, in its recent ‘CETA Opinion’, the CJEU has shown more openness to the prospect of an investment court system.Footnote ¹⁷⁴

In the context of ISDS reform, currently under the auspices of UNCITRAL Working Group III, the debate has focused on procedural and institutional design issues rather than on questions about the relations between investment protection and other substantive norms.Footnote ¹⁷⁵ However, some states and international institutions have emphasized connections with human rights, too. For example, in a letter addressed to participants in the ISDS reform process, human rights experts have highlighted that international investment agreements are often incompatible with international human rights law and the rule of law.Footnote ¹⁷⁶ They called for a ‘fundamental systemic change’ of ISDS, beyond procedural reform, and towards a ‘multilateral system’ that ‘takes into account the rights and obligations of investors and states, in line with all applicable international laws and standards concerning human rights’.Footnote ¹⁷⁷ They also claimed that greater proximity to human rights and the Sustainable Development Goals would enhance the legitimacy and effectiveness of the UNCITRAL process.Footnote ¹⁷⁸ The government of South Africa has also strongly advocated to take account of human rights and the principle of sustainable development.Footnote ¹⁷⁹

8.2.1 Trade and Environment: Unresolved Tensions and Emerging Forms of Entanglement

The General Agreement on Tariffs and Trade (GATT) was signed in 1947 on the cusp of what has been dubbed the ‘Great Acceleration’, a period of intensified human impact on the Earth that over the latter half of the twentieth century significantly contributed to the global environmental challenges we face today.Footnote ¹ International environmental law was still in its ‘early glimmers’.Footnote ² Nevertheless, the 1947 GATT already ‘recognized environmental concerns in its Article XX(b) and (g) exceptions’.Footnote ³ By 1994, and the founding of the WTO, the extent of human-wrought environmental degradation had become increasingly apparent, and international environmental law had developed and matured into its modern incarnation of a sprawling global governance complex. Two years prior, the United Nations Conference on Environment and Development had taken place in Rio de Janeiro, and produced a number of instruments, including the Rio Declaration, Agenda 21, the United Nations Framework Convention on Climate Change (UNFCCC) and the Convention on Biodiversity (CBD).

Notably, modern international environmental law evolved within an international legal environment in which international trade rules were already long established and could not be ignored. The drafters in Rio took these existing legal structures into account by explicitly integrating international trade norms into the new instruments. Principle 12 of the Rio Declaration, for example, emphasizes the importance of ‘an open international economic system’ and states that ‘[t]rade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade’, which is almost a word-for-word copy of the chapeau of GATT Article XX.Footnote ⁴ Notably, the same wording is reproduced in Article 3(5) of the UNFCCC.Footnote ⁵ Thus, international environmental law was actively entangled with the body of norms that governs the multilateral trading system.

From within the trade law sphere, efforts at legal entanglement with international environmental law were more tentative. While a reference to sustainable development was included in the preamble to the Marrakesh Agreement establishing the WTO (1994), the 1947 GATT was incorporated wholesale into the new WTO Agreement, with no changes or additions to the environmental provisions of the original text indicating how WTO law should relate to international environmental law. This was problematic because a host of new multilateral environmental agreements (MEAs) had sprung up since 1947, some of which explicitly relied on potentially GATT-inconsistent trade measures for their implementation (e.g. the Basel Convention and the Montreal Protocol).Footnote ⁶ Further, the extent to which WTO rules restricted national environmental policy space also remained unclear, particularly in relation to environmental measures targeting processing and production methods (PPMs) and the applicability of the precautionary principle.Footnote ⁷

The lack of relationing can be explained by GATT signatories’ diverging interests with regard to trade and environment concerns at the time (and still prevailing today). While developed countries supported the integration of environmental standards into international trade policy to counter ‘environmental dumping’, developing countries resisted, fearing market access restrictions due to ‘green protectionism’.Footnote ⁸ Thus, a meaningful debate for greater integration of environmental concerns within the trade regime was ‘out of the question’. Politically, the ‘environmental critique [also] came at an awkward time for GATT signatories since the Uruguay Round entered a deep crisis in the early 1990s, and the agricultural dispute between the USA and the EU threatened to scupper talks’.Footnote ⁹ Thus, an opportunity for entanglement – or at least clarification – between the two bodies of norms was missed. This state of affairs was supposed to be remedied in the subsequent Doha Round of trade negotiations, which gave members a mandate to negotiate the relationship between WTO rules and specific trade obligations set out in MEAs.Footnote ¹⁰ The talks failed however (they were finally abandoned in 2015),Footnote ¹¹ and thus a second opportunity for ‘enhancing mutual supportiveness’ was missed. Instead, it became incumbent upon the dispute settlement bodies to mediate the relationship between free trade and environmental protection (and, by extension, the ‘clash of interests’ between developed and developing countries).

8.2.2 The Question of Insularity

According to the provisions of the Dispute Settlement Understanding (DSU) the WTO dispute settlement mechanism ‘has exclusive [as well as compulsory and quasi-automatic] jurisdiction to resolve disputes arising from violations of the WTO covered agreements’.Footnote ¹² The WTO Dispute Settlement Body (DSB) in particular has ‘the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements’.Footnote ¹³ Without a centralized mechanism for resolving international trade and environment conflicts, nor a specialized environmental court, the DSB has become central to coordinating the relationship between WTO law and international environmental law. The Panels’ and the Appellate Body’s (unanticipated and unofficial) role in mediating the relationship between WTO law and external norms raises the question of whether (and to what extent) international law not contained in the covered agreements is applicable in WTO dispute settlement.

While the majority of scholars maintain a restrictive view regarding the extent to which other norms of international law may influence the interpretation and application of WTO law,Footnote ¹⁴ others have pointed out that the DSU does not contain an explicit limitation with regard to the applicable law.Footnote ¹⁵ The distinction between the jurisdiction of the WTO DSB and applicable law in WTO dispute settlement is relevant here.Footnote ¹⁶ While the jurisdiction of the WTO DSB is restricted to disputes arising out of the covered agreements,Footnote ¹⁷ WTO law contains no explicit provision which identifies or restricts the law that should apply to the disputes.Footnote ¹⁸ Thus, international law from all sources is potentially applicable as WTO law. Such a reading seems to be supported by the Panel in Korea-Government Procurement, which held that ‘Customary international law applies generally to the economic relations between the WTO Members […] to the extent that the WTO treaty agreements do not “contract out” from it.’Footnote ¹⁹ The Panel saw no basis ‘for arguing that the terms of reference [set out in the DSU] are meant to exclude reference to the broader rules of customary international law’.Footnote ²⁰ There is no reason to assume why the same logic should not also apply with regard to the external rules of treaty law (applicable between the parties).

The degree to which ‘external’ international law has a bearing on WTO law is thus largely up to the discretion of the WTO dispute settlement bodies. However, the Panels and the Appellate Body are viewed as having made insufficient use of this flexibility,Footnote ²¹ and have been criticized for creating ‘a value hierarchy that [favours] trade over environmental concerns and [operates] as a barrier to the integration of environmental considerations into the law of the GATT/WTO’.Footnote ²² Thus, the dominant perception of international trade law is of a distinct legal system that is bounded, rigid and hostile to environmental norms and considerations. The following account of irritative norm conflict complicates this picture.

8.3.1 Tuna Dolphin I

8.3.2 Shrimp-Turtle

8.3.3 EC-Hormones

8.3.4 EC-Biotech

8.3.5 US-Tuna II

8.4.1 Irritative Norm Conflict Over Time

The unadopted Panel report in Tuna Dolphin I set the stage for an antagonistic relationship between the GATT-based multilateral trading system and environmental trade measures for the achievement of global environmental objectives. Through repeated ‘irritations’ of trade law by environmental norms (through litigation in the WTO combined with external pressure), subsequent rulings by Panels and the WTO Appellate Body significantly corrected/recalibrated controversial aspects of the trade and environment interface, a process that is referred to here as irritative norm conflict over time.Footnote ¹²³

The ‘Tuna Dolphin saga’ (in which Shrimp-Turtle constitutes a crucial building block) illustrates how irritative norm conflict over a period of almost thirty years allowed WTO judicial bodies to adjust elements of previous jurisprudence that had ‘gone too far’ in asserting trade objectives over members’ right to regulate. Although Tuna Dolphin I had found unilateral environmental trade measures with extraterritorial effects prima facie incapable of justification under the GATT, the Appellate Body in Shrimp-Turtle reversed this finding and clarified that GATT Article XX could, in fact, justify measures conditioning market access on environmental policies/PPMs abroad – as long as the measures do not amount to arbitrary or unjustifiable discrimination.Footnote ¹²⁴ As a result, the ruling of the Appellate Body in Shrimp-Turtle was widely perceived as ‘a bold attempt to construct a broader societal vision of the WTO […] more sensitive to environmental concerns’.Footnote ¹²⁵ Both the Shrimp-Turtle import requirements and the Tuna Dolphin/US-Tuna II labelling provisions were ultimately found to be consistent with WTO law; however, this was only after the United States had been subjected to several (costly) rounds of litigation and revisions of the law. Thus, while environmental norms have gained clout in the WTO, the fundamental objective of the WTO system – an open international economic system – is preserved through the meticulous enforcement of non-discrimination principles.

In EC-Hormones, EC-Biotech, and Canada/US-Continued Suspension – a series of distinct but interrelated disputes – what was being negotiated was inter alia the scope/applicability of the precautionary principle in the WTO context. Repeated irritations of international trade rules (and pressure from both within and outside of the WTO) led to a shift in the Appellate Body’s construction of precaution in the WTO and SPS context (Canada/US-Continued Suspension). While the tension between the precautionary principle (as codified in international environmental law) and the emphasis on scientific evidence and risk assessment in the SPS Agreement is not completely resolved, the role of precaution has been significantly strengthened (both in WTO law and outside of it – e.g. in the Codex Alimentarius Commission and in the Biosafety Protocol). The compromise around the role of precaution versus scientific risk assessment in CETA shows how WTO dispute settlement is not the only arena in which actors negotiate and navigate irritative norm conflict.

Finally, it is of note that the appeals mechanism in the WTO serves to process – and to accelerate – irritative norm conflict, allowing the Appellate Body to make (rapid) adjustments in the wake of contentious Panel findings, member state pressure and public protest. ‘Follow-up’ disputes prompted by issues around compliance or continued retaliation also provide the opportunity for rebalancing or ‘fine-tuning’ previous findings (e.g. Canada/US-Continued Suspension).

8.4.2 Legal Entanglement (and Mechanisms of Distancing)

The narrative of competing objectives between international trade law and international environmental law obscures the way in which the two bodies of norms are already entangled, going as far back as Tuna Dolphin I (in which both parties made legal claims relating to international environmental law). All participants in the GATT/WTO dispute settlement system regularly invoke outside bodies of norms to justify their claims. The judicial bodies themselves have on several occasions inquired into possible legal bases/defences for WTO-inconsistent measures, grounded in international environmental law (e.g. the Panel in Shrimp-Turtle), and routinely draw on international environmental norms in their legal reasoning. Notably, this is not always done to advance ‘trade-friendly’ arguments. WTO disciplines on non-discrimination are often brought into relation with international environmental norms that emphasize international cooperation (e.g. the Panel and Appellate Body in Shrimp-Turtle). Consequently, a closer relationship between international trade law and international environmental law will not necessarily result in more ‘environmentally friendly’ rulings. In this vein, some of the foundational critiques directed at the multilateral trading system can also be levelled against the international environmental regime, which has incorporated into its body of norms a bias against unilateral trade measures and has embraced the objective of liberalized trade (e.g. Principle 12 of the Rio Declaration). The two bodies of norms have always been more entangled (and mutually reinforcing) than generally assumed.

The reference to sustainable development in the Preamble of the WTO Agreement plays a central ‘entangling’ function at the interface between trade and environment, opening the door for outside environmental norms to enter WTO law through GATT Article XX (e.g. in Shrimp-Turtle). However, such forms of relationing between international trade law and outside bodies of norms are tenuous and remain contingent on the Panels’ and Appellate Body’s willingness to take outside norms into consideration on a case-by-case basis – essentially at their discretion. For instance, while the Appellate Body in Shrimp-Turtle had referred to outside treaty law not binding on all the disputing parties (the CBD), the Panel in EC-Biotech rejected the applicability of the Biosafety Protocol because the United States was not a party to it, and it could therefore not be considered ‘applicable’ in the relations between the parties according to Article 31(3)(c) of the Vienna Convention.

Resistance to legal entanglement comes in the form of strategies for distancing. In EC-Hormones, various techniques for creating distancing between the precautionary principle and obligations under the SPS Agreement were employed by the disputants, the Panel and the Appellate Body, including (1) relegating the precautionary principle to the realm of international environmental law while calling into question the status of the precautionary principle as a general principle of international law or a rule of customary international law; (2) restricting the applicability of the precautionary principle to its (partial) reflection in the SPS Agreement (Article 5.7) but rejecting its general applicability with regard to other provisions (namely Articles 5.1 and 5.2); and (3) pointing to the absence of a ‘clear textual directive’ that would allow an external norm to affect the interpretation of a provision in a WTO Agreement. Article 3.2 of the DSU requires treaty interpreters to refer to any relevant rules of international law applicable in the relations between the parties (according to Article 31(3)(c) of the Vienna Convention). As customary and general international law is always applicable between all parties to a dispute, relevant customary norms or general principles of international law will more likely be brought into relation with WTO law than external treaty norms which may not have been ratified by all WTO members/parties in a given dispute. It is therefore unsurprising that emphasizing the customary or general international law nature of an external norm or lack thereof is a dominant mechanism for creating either entanglement or distancing between WTO law and other bodies of norms.

8.4.3 Interface Norms in the GATT/WTO Context

Although the relationship between WTO law and international environmental law is not centrally regulated, both bodies of norms contain ‘interface norms’ that guide forms of relationing to the other ‘from the inside out’. In the WTO context, Article XX of the GATT can be viewed as a reception norm, allowing external norms to enter into GATT law. The specific environmental terms mentioned in GATT Article XX serve as ‘docking points’ for environmental norms to connect to. Once made, such linkages endure even as external legal orders change over time, in turn influencing the interpretation of ‘coupled’ WTO norms. Notably, the chapeau of GATT Article XX sets out substantive criteria for the application of environmental measures by conditioning ‘entry’ on non-discrimination/even-handedness and multilateralism/international consensus (see Section 8.4.4).

Not all reception norms are textually explicit, however. The concept of ‘legitimate regulatory distinction’ to justify discriminatory treatment was read into Article 2.1 of the TBT Agreement by the Appellate Body through successive case law (including US-Tuna II). It allows for balancing TBT non-discrimination objectives/obligations with legitimate regulatory interventions (such as for environmental protection) and thus fulfils the same purpose as GATT Article XX, including – conceivably – as a reception norm. Similarly, even though Article 5.7 of the SPS Agreement does not mention the term ‘precaution’ as such, the provision is generally viewed as a reflection of the precautionary principle and thus allows for external bodies of norms related to the precautionary principle to enter into WTO law.

The reference to sustainable development in the Preamble of the WTO Agreement connects trade rules to the vast body of international environmental law (and the emerging field of ‘international sustainable development law’). As a connecting norm, somewhat akin to the multi-sourced equivalent norms identified by some,Footnote ¹²⁶ the reference to sustainable development provides a linkage function and enhances the discretion of Panels and the Appellate Body to interpret the environmental exceptions of Article XX expansively (e.g. the Appellate Body in Shrimp-Turtle construed a close relationship between WTO rules and international environmental norms according to preambular directive). In this way, interface norms can be mutually supportive.

While the WTO, on the whole, keeps substantive norms from other areas of international law at bay, it actively seeks entanglement with international standards. International standards attract linkages with WTO law more readily due to the WTO’s inherent harmonization dynamic. This is done through the TBT and SPS Agreements, which coordinate the relationship between international standards and WTO harmonization obligations through Articles 2.4 and 3.1 respectively. The contrasting approaches to entanglement are best illustrated in EC-Hormones, where the Panel and the Appellate Body interpreted the SPS Agreement in a way as to promote entanglement with Codex norms, while creating distancing with an external substantive norm originally developed in the context of international environmental law, namely the precautionary principle.

8.4.4 Substantive Dimensions for Interface Norms

An important factor influencing the porosity of WTO law is whether the external norm is of multilateral origin or constitutes an international standard. Environmental measures based on multilateral consensus have a higher likelihood of being taken into account in the WTO context than unilateral measures with little international support (although this is not guaranteed, see the Panel’s dismissal of the Biosafety Protocol in EC-Biotech). This way of reasoning is in line with the notion that the interface between international trade law and other norms of international law is governed primarily by the customary rules on treaty interpretation (as codified in the Vienna Convention) that require any relevant rules of international law applicable in the relations between the parties to be taken into account together with context. As opposed to external treaty norms, customary international law binds all states and will always be binding on parties in a given trade dispute (no matter the constellation). It follows that linkages with external norms are more easily produced if the latter are considered general or customary international law (see Section 8.4.2), as well as when there are ‘docking norms’ in the text that can provide the Panel or the Appellate Body with a ‘textual directive’ – that is, a mandate – for linkage.

Further, entanglement between WTO law and international standards is explicitly encouraged through the TBT Agreement and the SPS Agreement, which promote the harmonization of national regulations on the basis of international standards. The substantive dimensions of entanglement between WTO law and international standards is gradually being ‘fleshed out’ with additional (still contested) criteria such as the level of international support for the adoption of the norm in question (consensus, broad membership, inclusiveness/participation). For example, in EC-Hormones the EC did not recognize a specific set of Codex standards as being ‘international standards’ due to the narrow margin by which it was adopted. The EC thus expressed expectations about the substantive dimensions of the interface norm contained in the SPS Agreement: international standards should only be taken into account if they are considered legitimate, as indicated by broad acceptance during adoption (see Section 8.3.3.2). While the Panel in EC-Hormones rejected the EC’s reasoning, the Appellate Body in US-Tuna II gave significant weight to a 2000 TBT Committee Decision, which contains a set of substantive criteria that qualify the appropriateness of international standards from the perspective of the WTO (specifically the TBT Agreement), including transparency, openness, consensus and effectiveness. In this regard, the Appellate Body also indicated that the number of countries participating in a standard-setting process relative to the total number of WTO members is relevant for the entry of international standards into WTO law via TBT Article 2.4.