SBORNÍK 66 SVOČ 2016

B. Rejection of Arguments that Used Obligations from Human Rights Instruments as a Defence

In several cases, investment tribunals were confronted with the argument that the state was forced to adopt particular measures in order to fulfil its human rights obligations. Throughout the cases, the structure of arguments varied and so did the law the states asked the tribunals to apply; the common denominator was that the need to comply with human rights was used as a defence against alleged breaches of investment treaties. In the cases Sempra v Argentina , Vivendi v Argentina and InterAgua v Argentina , Argentina maintained it adopted the measures in question in order to safeguard human rights and constitutional order. 67 It based this argument on the principle of state of necessity created by customary international law, respective provisions of the BIT, 68 and in one case on the constitution. 69 State of necessity is a concept of international customary law developed as states claimed that in extraordinary situations, they should be able to adopt legislation to react to solve them without incurring liability for this legislation towards investors. 70 The principle was restated in Art 25 of the Draft articles on Responsibility of States for Internationally Wrongful Acts 71 (“ILC Draft Articles”). Conditions of its application are strict; necessity may not be invoked unless the measures are ‘the only way for the State to safeguard an essential interest against a grave and imminent peril,’ 72 and ‘[do] not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole;’ 73 and unless ‘the international obligation in question excludes the possibility of invoking necessity,’ 74 and ‘the State has contributed to the situation of necessity‘. 75 The tribunal in all of the cases tested the situations against these conditions and found they were not satisfied. 76 This is not very surprising; the conditions are strict and difficult to achieve. The provisions in the BITs did not help the state’s effort either. In Vivendi v Argentina , the tribunal ruled that the BITs in question did not contain any provision under which a state of emergency would release the state from its BIT 67 Sempra v Argentina (n 38) [325]; InterAgua v Argentina (n 40) [232]; Vivendi v Argentina (n 39) [252]. 68 Sempra v Argentina (n 38) [365]; Vivendi v Argentina (n 39) [266]. 69 Sempra v Argentina (n 38) [328]. 70 Dolzer and Schreuer (n 1) 166. 71 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) Supplement No 10 (A/56/10). 72 ibid art 25(1)(a). 73 ibid art 25(1)(b). 74 ibid art 25(2)(a). 75 ibid art 25(2)(b). 76 InterAgua v Argentina (n 40) [238] – [241]; Sempra v Argentina (n 38) [352] – [355]; Vivendi v Argentina (n 39) [260] – [263].

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