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Human Rights Obligations of Corporations

In a positive move from a human rights perspective, the Tribunal objected to the claimant's claim that BIT had no obligations to the investor. The Tribunal reviewed the arbitration clause, applicable law rule, and Article VII (1) (a very favorable law clause) of the Spanish-Argentine PIT, all of which are external to BIT, including treaties and general international law. As a result, the Tribunal found that the PIT was not a closed system. Conversely, when identifying a claimant's obligations, the PIT has enabled the respondent to refer to certain legal resources outside the BID.

Further, the Tribunal rejected the claimant's view that, as an NGO actor, it was not subject to human rights obligations. The Tribunal held that because companies are entitled to rights under BITs, they are subjects of international law, and that they can accept obligations in international law.

The Tribunal refers to the Universal Declaration of Human Rights (UTHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which have human rights obligations relating to the right to water. In addition to these rights, the Tribunal has established that private parties owe human rights obligations using Article 30 UDHR and Article 5 (1) ICESCR.

The Tribunal also relied on the tripartite principles of the International Labor Office on various organizations and social policy to support this position. Using the words found in these Rules, the Tribunal, in addition to human rights exercising water rights, 'has an obligation to all areas, public and private parties, not to act in such a way as to destroy it. Rights’.

The terms of this obligation prohibit Article 30 of the UDHR and Article 5 (1) of the ICESCR from asserting that the claimant is entitled to destroy its rights under the PIT. I would argue, however, that this duty cannot be derived from these terms. Both Article 30 UTHR and Article 5 (1) ICSCR are aimed at preventing the deliberate misappropriation of a human rights obligation to justify the infringement of other rights. (see Saul, Kinley and Mowbray, The International Covenant on Economic Social and Cultural Rights: Commentary, Cases, and Materials (OUP 2014), 263).

Therefore, Article 5 (1) ICESCR uses the following terms:
‘Nothing in the present agreement is intended to imply… any right to engage in any activity or any act aimed at destroying any rights or freedoms recognized herein’
Consequently, if the Tribunal in Urbaser wants to extend Article 5 (1) of the ICSCR's exercise of its rights to other contracts such as the PIT, this interpretation is contrary to its express terms.

Alternatively, if Article 5 (1) is to be used in the same way as the ICSCR drafted, the claimant must rely on his own human rights to deliberately destroy the human rights of others to meet this test. The claimant may request property rights (relying on the UDHR), but the host state must explain this right to deny the human rights of the people. This situation is unlikely to arise in many investment disputes.

Moreover, the purpose behind Article 5 (1) of the ICSCR is to prevent newly formed fascist groups from believing human rights as a justification for their actions (Saul, Kinley and Mowbray, International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (OUP 2014), 263). Article 5 (1) Article 17, which provides for a similar function to the ICESCR, is only used in cases where the European Convention on Human Rights is fundamentally undermining its objectives, such as incitement to hatred. Again, it is difficult to imagine a wide range of situations in which an investment policy can be considered a comparative policy.

The Tribunal ruled that Article 5 (1) could not be applied to their right to human rights in their interpretation of the ICSCR. First, the Tribunal found that the respondent's argument was related to the obligation to exercise the human right of the grantor's water and sewer services. Based on the respondent's argument, the Tribunal held that the origin of the human rights obligation was a concession agreement. Second, given the obligation to do human right to water, the sole duty was placed on the state.

As the state regulates water supply to fulfill this right, the claimant's duty derives from the concession agreement or the civil law. These findings are complex because the Tribunal has no jurisdiction over matters relating to Argentine domestic law (jurisdictional decision). Because the respondent did not recognize an independent obligation on the claimant in international law, the counter-claim could not succeed.

Nevertheless, the Tribunal concluded that:
The situation would be different if the duty to quit was at risk, such as prohibition on acts that violate human rights. Such an obligation shall be equally applicable not only to the States but also to individuals and other private parties. This is not something to worry about in the instant case.

The report reflects the Tribunal's prior view on Article 30 UDHR and Article 5 (1) ICESCR. Given the difficulties of relying on these terms mentioned above, it is not clear that the obligation to quit is likely to be an immediate application of the telephone number. Moreover, the Tribunal did not make its concluding statement on the same terms as it had made its previous duty.

This explains the obligation to step aside to include a ban on acts that violate human rights. While this includes cases where human rights are deliberately misconstrued to infringe on the rights of others, the Tribunal is arguably in favor of human rights prohibited beyond these cases.

These are usually associated with jus cogens duties such as a prohibition on slavery, prohibition on genocide, and a prohibition on racial discrimination. Although these barriers may apply to investment projects (for example, the controversy in Piero Foresti v South Africa stemmed from the implementation of the Black Economic Reinforcement Act), this type of claim is rare and does not automatically bind individuals or corporate entities. Therefore, the Tribunal's report does not clarify which human rights bind foreign investors.

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