Chapter

Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law

Pierre-Marie Dupuy

in Human Rights in International Investment Law and Arbitration

Published in print September 2009 | ISBN: 9780199578184
Published online February 2010 | e-ISBN: 9780191722561 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199578184.003.0002

Series: International Economic Law Series

 Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law

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This chapter compares the normative origins of these two distinct branches of international law, assessing the historical anteriority of the obligations of states with regard to the rights of aliens — including their property rights — which appeared well before a new body of law developed with regard to human rights protection in general. This explains for one part some substantial similarities existing between these two sets of rules, as illustrated in particular by the way in which the principle of fair and equitable treatment of foreign investments is applied by arbitral tribunals. The chapter illustrates how judges and arbitrators — in their judicial interpretation and clarification of indeterminate investment rules and incomplete treaty regulations — can resort to principles of treaty interpretation, customary rules, ‘general principles of law’, judicial precedents, and human rights obligations of governments in order to avoid conflicts among fragmented jurisdictions, treaty regimes, diverse judicial interpretations, and domestic implementing rules.

Keywords: obligations of states; rights of aliens; property rights; foreign investments; arbitral tribunals; proportionality balancing; contextual interpretation

Chapter.  8842 words. 

Subjects: Human Rights and Immigration

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