On 28 September 2011, at a gathering convened by Maastricht University and the International Commission of Jurists, a group of experts in international law and human rights adopted the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. The experts came from universities and organizations located in all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council.

Commentary to the Maastricht principles on extraterritorial obligations of states in the area of economic, social and cultural rights

Post-legislative guidance is a regular feature of European Union law. It serves to elaborate upon the meaning and practical implications of European framework norms. This paper presents a case study on post-legislative guidance adopted in the area of climate change and operating at the interface between European and international law. It examines whether and when post-legislative guidance of this kind may be regarded as susceptible to European-level judicial review. It argues that although the European courts privilege substance over form in deciding which measures may be challenged, post-legislative guidance will frequently escape the scrutiny of these courts. The paper argues that the European courts' case law is premised upon a series of distinctions that operate to obscure the nature and impact of guidance as a governance form and that the European courts should create enhanced opportunities for judicial review. The paper considers what, concretely, this argument might mean for the development of European administrative law. While this paper focuses upon post-legislative guidance in the area of environmental law, the administrative law analysis presented is relevant also beyond this specific substantive sphere.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=1783557

In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law

Be as it is the result of the war on terrorism, foreign military intervention, economic globalisation or otherwise, state conduct increasingly affects the human rights of individuals beyond its own borders. This book provides a comprehensive answer to the question whether existing human rights treaties are applicable in such circumstances. The principal treaties on civil and political rights require states to guarantee certain human rights to persons within their jurisdiction. What is the meaning of these terms? Are states able to evade the application of these treaties by detaining their opponents on foreign soil rather than within their own borders? Does it make a difference to the applicability of these treaties, whether a victim of an extraterritorial assassination by state agents, was a detainee, who had not been arrested? By contrast, treaties on economic, social and cultural rights tend to specifically to provide that states must strive for the full realisation of these rights through international co-operation. The problem here is that the precise nature and content of this obligation is unclear. For example, what is the extent of states' obligations to contribute to sustainable development in other states? What are their obligations as members of the executive bodies of international financial institutions such as the World Bank and the IMF? This book focuses on the extraterritorial application of four key human rights treaties: the two UN Covenants on Human Rights and the American and European Conventions on Human Rights. It reveals that supervisory bodies are inconsistent in their implementation of these treaties and discusses the pros and cons of both a restrictive and a non-restrictive approach.

Extraterritorial Application of Human Rights Treaties. Edited by Fons Coomans and Menno Kamminga. Antwerp: Intersentia, 2004. Pp. xiv, 281. Index. €60, paper.

The International Minimum Standard and Fair and Equitable Treatment Martins Paparinskis (Oxford University Press, Oxford, 2013, 320 pp)

The protection of cultural heritage has profound significance for human dignity and assumes particular importance with regard to indigenous peoples. Although the recognition of indigenous peoples' rights and cultural heritage has gained some momentum in international law since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), states have interpreted the right to develop 'on their own terms' in order to prosper 'as they see fit'. Meanwhile an international economic culture has emerged that "cuts across traditional cultural divides"' and emphasizes productivity and economic development.Because policymakers tend to favor growth, regardless of actual or potential infringement of cultural entitlements, 'existing laws frequently fail to strike a balance between economic development' and indigenous peoples' rights.' As a result, indigenous peoples suffer the consequences of a regime that favors, for example, mining over the environment and indigenous culture. While the clash between economic development and indigenous peoples' rights is by no means new, this Article approaches this well-known theme from a new perspective by focusing on international investment law and arbitration. This Article explores the way in which international investment treaties and arbitral tribunals have dealt with indigenous peoples' rights. This research is timely as in the past decade there has been a boom of investor-state arbitration which is contributing significantly to the development of international law. While the traditional focus of investment lawyers has been the analysis of the relevant investment law provisions, little, if any, research has focused on the substantive interplay between indigenous peoples' rights and investor's rights in international investment law and arbitration. Only recently have legal commentators begun to analyze and critically assess the substantive interplay between different international law regimes in investment treaty law and arbitration. Among these pioneering works, however, specific focus on indigenous peoples' rights is missing. This Article aims to fill this existing lacuna in contemporary legal studies. The key questions are whether international investment law has embraced a pure international economic culture or whether it is open to encapsulate non-economic or cultural concerns in its modus operandi.

When Cultures Collide: Foreign Direct Investment, Natural Resources and Indigenous Heritage in International Investment Law

EU Human Rights, International Investment Law and Participation : Operationalizing the EU Foreign Policy Objective to Global Human Rights Protection

This chapter aims to demonstrate that IIL privileges certain interests at the expense of others. Human rights interests are for the most part excluded although this regime is often affecting them. This fact might be explained as a natural result of fragmentation of international law, but it is not justifiable from an EU constitutional law perspective. The tensions between human rights and the international investment regime are complex, a product of multiple interactions, systemic and often remain concealed. This chapter therefore approaches the identification of this regime’s stance towards human rights law on several levels. The introduction (Sect. 4.1) explains why this approach is important. The next section gives an overview of the coming into being of today’s investment regime (Sect. 4.2). Subsequently, this chapter analyses the human rights tension arising from the most common formulations of investment protection provisions and their interpretation by arbitral awards (Sect. 4.3). This includes a discussion of the progressive approaches within the investment regime, which can be observed in arbitral practice or have been advocated by the literature. It explores to what extent such approaches are mitigating some human rights concerns. Further, this chapter outlines the threats to human rights protection which cannot be determined by direct clashes of conflicting international obligations but are rather an indirect effect of the ‘multilateralization’ of investment treaties and its linkage to investor-state-dispute-settlement (ISDS) (Sect. 4.4). The chapter concludes (Sect. 4.5) that many frictions with human rights are not even identified in arbitration, human rights law is rarely perceived as applicable or human rights violations remain concealed. The isolated attempts of human rights integration in the arbitral practice and as proposed in the literature are often methodologically inconsistent and instable as they lack clear textual legitimacy. The need for including affected rights-holders to represent their interests becomes clear, while the right legal tools for such inclusion are still missing.

Tensions Between the International Investment Regime and Human Rights: A Regulatory Tilt?

This chapter explores how different EU law sources of human rights should influence EU investment policy making. This analysis takes the foreign policy objective and principle that demand global human rights protection and promotion, as stipulated in Article 21 and 3(5) TEU, as a starting point, but is not limited to it. International human rights norms and the Charter form important pillars of the EU human rights obligations. This analysis however approaches the examination of the entire EU human rights framework in relation to Article 21 TEU and 3(5) TEU as explicit directives for the former’s application to EU trade and investment policies.

EU Human Rights as a Framework for Foreign Policies

States and international organizations have for some time promulgated Human Rights Impact Assessments (HRIA) as the major instrument for bringing trade agreements in line with human rights obligations. This chapter explores the role that the EU approach to HRIAs is playing and can play in overcoming the inequality of rights protection in the international investment regime. In order to do so, HRIAs must be able to comprehensively assess all interests at stake and empower those that are underrepresented. This chapter tests the EU theory and practice for whether they are fit to do so. First, this chapter outlines briefly the international norms and discourses on HRIAs (Sect. 6.2.1) and relevant constitutional principles of EU law (Sect. 6.2.2)—both with a focus on the inclusivity and empowerment dimensions. This is the legal framework which the EU rules and practice will be measures against. In order to so, the chapter clarifies which rules make up the EU legal and soft law framework for HRIAs, divided into the rules on design, on procedures and on the legal nature or in other words the legal consequences (Sect. 6.3), bringing to light the conceptual shortcomings. The section on the EU practice finds further shortcomings at the implementation stage in terms of the substantive scope that is applied, in terms of participation and representation, in terms of transparency and independence and those shortcoming that flow directly from the conceptual limitations (Sect. 6.4). However, by exposing the linkages between HRIAs and the inequality problem of EU investment policy also the potentials become visible. This chapter therefore also aims to highlight the possibilities for reforms—from marginal to more imaginary.

Assessment and Participation Through Human Rights Impact Assessments

The following section gives an overview of the EU approach to international investment regulation and analyses whether they are adequately responding to the human rights tensions identified in Chap. 4. Many protection standards have evolved over time and have been constructed by arbitration and literature as to some degree independent principles and standards of good governance. In addition, marginal variations within the treaty texts have often been ignored by arbitral practice. Therefore, the treaty makers, if intending to regain legislative control or diverge from previous practices, have to be explicit. The intention to impose a restrictive understanding or a roll-back of a standard has to be expressed clearly, especially in the context of highly debated issues. Bearing this in mind, each section summarizes the tensions between the respective rule and human rights as elaborated in the previous chapter, subsequently analyses the EU approach and concludes whether the EU is solving, mitigating, neutral to or deepening the problem (Sect. 5.2). Further, the EU policy to dispute settlement in investment matters is assessed with a focus on the entry barriers for human rights interests as identified in the previous chapters (Sect. 5.3).

Vivian Kube

Papers

EU Human Rights, International Investment Law and Participation : Operationalizing the EU Foreign Policy Objective to Global Human Rights Protection

Tensions Between the International Investment Regime and Human Rights: A Regulatory Tilt?

EU Human Rights as a Framework for Foreign Policies

Assessment and Participation Through Human Rights Impact Assessments

The EU Approach to International Investment Agreements