International Minimum Standard and General International Law
International Minimum Standard and General International Law
Abstract and Keywords
This chapter addresses the positive side of the normative coin that was approached from the negative perspective earlier, exploring the possibility that customary law might provide the unifying framework. First, it is suggested that general international law may be brought within the interpretative process either by a direct reference or by being structurally relevant. Second, the argument is applied to the particular case study, suggesting that fair and equitable treatment refers to the international minimum standard or, at the very least, requires it to be taken into account in interpretation as relevant rules.
I. Treaty Interpretation and General International Law
The prevalent practice of interpreting fair and equitable treatment by reference to arbitral awards on pari materia treaty rules cannot be explained by arguments that do not rely on general international law.1 This chapter addresses the positive side of the normative coin that was approached from the negative perspective earlier, exploring the possibility that customary law might provide the unifying framework. Before considering the validity of the arguments about reliance on customary law, it is necessary to establish the general benchmark against which they would be judged.2
The limits of the permissible and required interpretative reference to customary law seem formulated with some ambiguity, raising important theoretical questions with considerable practical relevance. The methodology for distinguishing required interpretative reliance on custom from impermissible often seems at best unclear. For example, the Tribunal in Saluka Investment BV v Czech Republic (Saluka) case accepted as uncontroversial an argument that a treaty rule of ‘deprivation’ made a reference to customary law of expropriation (that was in its turn explained in a draft text using the term of art of ‘taking’). Forty paragraphs later, the same Tribunal summarily rejected a proposition that the treaty rule of ‘fair and equitable treatment’ made a reference to the customary minimum standard.3 It is not at all clear why the Tribunal disposed of prima facie similar arguments in such a different manner.
Interpretation of treaties by reference to other rules of international law has been subject to considerable attention over the past few years, both in general4 and in investment treaty context.5 The general issues of investment treaty interpretation by reference to customary law will be analysed in three steps: first, the admissibility of customary law as interpretative materials under Article 31(3)(c) will be considered; second, the interpretative weight of admissible customary law will be addressed; and third, other approaches (p.155) for dealing with custom suggested by the ILC will be considered. The main thesis is that Article 31 provides for two ways of introducing customary law in the interpretative pro-cess: first, the ordinary or special meaning of treaty term(s) may make a direct reference to customary law (31(1) or (4)); second, substantively relevant customary law may be taken into account together with context (31(3)(c)).
A common starting point of analysis is Article 31(3)(c) of the VCLT and analogous customary law,6 which provide that ‘[t]here shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties’.7 Each word and concept of Article 31(3)(c)—‘any’, ‘relevant’, ‘rules of international law’, ‘applicable’, ‘in the relations’, ‘between the parties’—has raised further interpretative questions relating to the scope of permissible reference. However, the focus on general international law seems to leave aside most of these controversies, since such rules are likely to be ‘any … rules of international law applicable between the parties’.8 The only explicit qualification for distinguishing appropriate from inappropriate interpretative references under Article 31(3)(c) is that customary law has to be ‘relevant’. The scope of ‘relevance’ in Article 31(3)(c) may be subject to different readings. At the narrower end of the spectrum, Judge Villiger has suggested that relevant rules ‘concern the subject-matter of the treaty term at issue. In the case of customary rules, these may even be identical with, and run parallel to, the treaty rule.’9 A number of authors explain relevance primarily by reference to the subject matter of the rules.10 At the other end of the spectrum, Judge Simma and Theodore Kill have argued for a broad reading under which ‘[a]lmost any rule of international law will be “relevant” when considered with the proper degree of abstraction’.11 The broader reading is supported by reference to Article 30 of the VCLT, which explicitly uses the concept of ‘the same subject-matter’, with the ordinary meaning of ‘relevant’ a contrario suggesting a broader scope.12 The International Court's judgment in the Certain Questions of Mutual Assistance in Criminal Matters (Djibouti) case seems closer to the latter reading of relevance, finding aspirational rules from a Friendship and Co-operation Treaty ‘relevant’ for interpreting rules on mutual criminal assistance in another treaty.13 At the same time, the explicit reference to context in the chapeau of Article 31(3) and to ‘applicable [rules]’ in subparagraph (c) could narrow back the broader reading of relevance.14
The different readings of relevance can have a significant impact on the interpretation of investment treaties that may be illustrated by reference to the Loewen Group, Inc. and Raymond L Loewen v US (Loewen) and Sempra Energy International v Argentina (Sempra) (p.156) cases. If ‘relevant’ rules have to ‘run parallel’, then in the Loewen case the interpreter of treaty rules on investor–State arbitration could refer to customary law of diplomatic protection dealing with invocation of responsibility by States only if investor–State arbitration (despite appearance to the contrary) also constituted invocation of responsibility by States.15 Similarly, in the Sempra case the interpreter could refer to customary law of circumstances precluding wrongfulness only if the treaty rules on non-precluded-measure (NPM) clauses were secondary rules of State responsibility.16 An interpreter adopting this approach has to identify the nature of treaty and customary law, and the absence of relevance directly leads to ab initio inadmissibility of custom as an interpretative material. Conversely, an interpreter for whom almost any rule of international law is relevant would probably be less concerned about the exact normative parallelism and admissibility of interpretative materials: even if investor–State arbitration is not exactly diplomatic protection or NPM clauses are not precisely secondary rules, with the proper degree of abstraction similar issues of invocation of responsibility or conduct in emergency situations may be identified. The qualification of relevance is less important for the present purpose: even if the minimum standard imposes obligations with different content, they address the same subject matter and would probably qualify as ‘relevant’ even under the stricter reading of relevance.17
Second, when customary rules have been recognized as admissible interpretative materials, their weight in the interpretative process still needs to be considered. The discussion of the role of customary law often focuses on the first question of admissibility, implicitly assuming that ‘relevant’ customary law would necessarily dictate the result of the interpretative exercise. However, the mere fact that customary law is ‘relevant’ does not on its own mean that it carries significant interpretative weight, or even replaces the ordinary meaning of the treaty term. Article 31(3)(c) only determines the admissibility of interpretative materials. The chapeau of Article 31(3) explains the role and weight of admissible interpretative materials in the interpretative process by placing them ‘together with the context’. The chapeau suggests that materials introduced in the interpretative process through Article 31(3)(c) play the same role and carry (only) the same interpretative weight as the context. To paraphrase the ILC Commentary of the Draft Articles on the Law of Treaties, ‘the ordinary meaning of a term is not to be determined in the abstract but in the context of the treaty [and relevant customary law] and in light of its object and purpose’.18
In the Djibouti case, the ICJ found that the ‘relevant’ rules only ‘have a certain bearing on interpretation’ and ‘cannot possibly stand in the way’ of particular rules in the treaty under interpretation.19 Context (and rules considered ‘together with context’) should (p.157) have greater bearing on the framing of the ordinary meaning if they deal with the same or similar issues and vice versa. Since a certain degree of ‘sameness’ of admissible customary law may be assumed due to the scope-orientated admissibility criterion of relevance, customary law would play the same role as similar treaty rules would qua context, providing material for comparing and contrasting different approaches.20
Third, even though the textual expression of Article 31(3)(c) and Article 31(3) provide an adequate framework for dealing with customary law, most of the recent authorities have used a different vernacular without explicit pedigree in the VCLT. Campbell McLachlan's landmark article on systemic integration21 and the ILC Study Group's Report22 and Conclusions all suggest a number of considerations that support reference to customary law. To adopt the terminology of the ILC Study Group's Conclusions, in general terms there is a positive presumption that ‘parties are taken to refer to customary international law and general principles of law for all questions which the treaty does not itself resolve in express terms’. More particularly, customary law is of special relevance where ‘[t]he treaty rule is unclear or open-textured’; ‘[t]he terms used in the treaty have a recognized meaning in customary international law’; or the treaty is silent on applicable law and the general presumption is applied.23
This exposition is problematic on two levels: it both unnecessarily distances itself from the VCLT by creating new terminology of interpretation and seems to conflate two distinct legal arguments. The ‘positive presumption’ and the ‘unclear or open-textured … rule’ tests seem to be a somewhat roundabout way of expressing the reading of Article 31(3)(c) suggested in the previous paragraphs. McLachlan's later article supports the view that the technique of the ILC Conclusions is simply another way of expressing Article 31(3)(c). In applying his methodology to particular case studies, McLachlan suggested that interpretation of treaty rules on fair and equitable treatment could draw upon the customary international minimum standard because of the similarity of functions in assessing administration of justice.24 The criterion of similarity of functions between treaty and customary rules can be restated as a VCLT-compliant inquiry into ‘relevance’ under Article 31(3)(c). However, if that is the case, there is no obvious added value from introducing these new terms and criteria instead of the tests already provided by Article 31(3)(c).
Introduction of a content-sensitive criterion (‘does not resolve itself in express terms’) as a matter of admissibility (‘parties are taken to refer to customary international law’) is problematic because it goes against the explicitly scope-focused and content-neutral test of VCLT (‘relevant’, not ‘relevant and not resolved differently in the treaty’). As a formal point, to the extent that these tests suggest something different from VCLT, as a matter of sources one should probably prefer the customary law rules of interpretation (p.158) established from 1960s onwards to a single quotation from one pre-Second World War case.25 As a practical point, even if the Study Group of the ILC only attempted to explain the application of the VCLT, the ‘positive presumption’ seems to merge the logical two-step process of separately establishing admissibility and weight of interpretative mater-ials into one single exercise. This calls for a rather blunt technique of finding admissible only those materials that are important for the result of the interpretive process, rather than accepting all relevant materials as admissible and using them for subtle contextualization. In fact, much of the concern about exaggerated reliance on custom may be traced to the almost total focus on admissibility of interpretative materials, leaving aside the issues of interpretative weight and seemingly implying that any custom introduced replaces the ordinary meaning. Saying that a ‘treaty rule … is unclear’ is not that different from the concept of ‘ambiguous or obscure’ that Article 32 of the VCLT provides as one of the alternative preconditions for relying on supplementary means of interpretation. If a criterion for application of a part of the primary rule of interpretation is substantially the same as the condition for having resource to supplementary means, then the fundamental distinction between Articles 31 and 32 is close to disappearing, with Article 31(3)(c) effectively collapsing into Article 32. Overall, to the extent that these tests only restate Article 31(3)(c), they are unnecessary, misleading, and potentially dangerous; to the extent that they provide for a different approach, their supporters bear the burden of demonstrating the law-making processes through which VCLT and analogous customary law have been displaced.
Reliance on ‘recognized meaning in customary international law’ is better treated as a different legal technique not falling under Article 31(3)(c) at all. The application of Article 31(3)(c) may be analytically separated into finding ‘relevant’ customary rules admissible and then ‘taking [them] into account, together with the context’. The treaty rule under interpretation sets the limits of admissible custom not by its content but by the scope of coverage, with the content of treaty and customary rules becoming important only during the interpretative exercise when custom serves the contextualizing role. However, customary law may also be brought into the interpretative process directly when the treaty rule under interpretation makes a reference to customary law. Rather than engaging in a content-neutral exercise in order to place custom at the level of context, this is a content-focused exercise to place custom at the level of ordinary or special meaning. If a treaty term has a ‘recognized meaning’ in customary law, it seems better to say that reference to customary law simply is the ‘ordinary meaning’ under Article 31(1) or ‘special meaning’ under Article 31(4) of the particular term.26
There are at least two ways of making the reference. The easiest technique is to describe the process of reference. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua), the ICJ explained how the reference to customary law was contained in the actual text of Article 51, which mentioned the ‘inherent right’ [and] it is hard to see how this can be other than of a customary nature’.27 The other technique mentioned in the Conclusions is to describe the result of the reference by using a term of art recognized in customary law. While the Aegean Sea Continental Shelf (Aegean Sea) case is usually dealt (p.159) with in the context of generic terms, it also shows how the use of a customary law term of art results in a reference to custom: ‘the expression “relating to the territorial status of Greece” in reservation (b) is to be understood as a generic term denoting any matters properly to be considered as comprised within the concept of territorial status under general international law’.28
The two ways of bringing customary law into the interpretative process have importantly different effects. In the argument by Article 31(1) or Article 31(4), the benchmark is the content of (the reference in) the treaty rule and the interpretative weight directly affects ordinary or special meaning. In the argument by Article 31(3)(c), the benchmark of admissibility is the subject matter of the treaty rule and the interpretative weight is limited to that of context. An accurate (if not explicit) application of the VCLT methodology may be illustrated by the Chevron Corporation (USA) and Texaco Corporation (USA) v Ecuador (Chevron) case. The Tribunal had to address the impact of customary law of denial of justice on the treaty obligation to ‘provide effective means of asserting claims and enforcing rights’. The Tribunal first dealt with the relationship of treaty and custom, concluding that the treaty rule did not make a reference to custom.29 The absence of explicit language and language corresponding to the customary standard paralleled the Nicaragua and Aegean Sea techniques of introducing customary law in terms of Article 31(1) or 31(4). For reference to take place, the treaty would have had to refer to, for example, ‘obligations in accordance with customary law’ or the customary term of art ‘denial of justice’. The degree of overlap and the similarity of wrongs relate to the question whether custom is ‘relevant’ in terms of Article 31(3)(c). The Tribunal introduced customary law into the interpretative process because it was ‘relevant’ rather than directly referred to.
At the second stage of analysis, the Tribunal accurately captured the subtle contextualizing role that admissible ‘relevant’ international law may play, simultaneously explaining similarities and contrasting differences: ‘the interpretation and application of Article II(7) is informed by the law on denial of justice. However, the Tribunal emphasizes that its role is to interpret and apply Article II(7) as it appears in the present BIT.’30 One should applaud the VCLT-consistency of the methodology that was de facto applied. The Tribunal distinguished between the issues of admissibility and weight of customary law in the interpretative process. At the first level of analysis, a further distinction was made between a reference to custom (that had not taken place) and introduction of ‘relevant’ custom because of the substantive and functional overlap. At the second level of analysis, custom operated in subtle contextualizing terms, illuminating the methodology and criteria of the treaty obligation to the extent that treaty terms did not call for something different.
The distinction between a reference to customary law and the taking into account of customary law will structure the further analysis. First, it will be suggested that treaty rules on fair and equitable treatment refer to the customary minimum standard (II.1). Second, even if that is not the case, the interpreter of fair and equitable treatment has to take the customary minimum standard into account (II.2).
(p.160) II. Fair and equitable treatment and the international minimum standard
1. Reference to the international minimum standard
Different investment protection treaties deal with the relationship between fair and equitable treatment and customary minimum standard in different terms. At one end of the spectrum, treaties expressly recognize that fair and equitable treatment is identical with the customary minimum standard; at the other end of the spectrum, fair and equitable treatment appears on its own, without any explicit reference to customary law; many versions of intermediate formulae exist.31 Clearly, the term of art ‘fair and equit-able treatment’ may in principle be used to refer to the customary minimum standard. The treaty language and arbitral decisions show no conceptual controversy surrounding the technique of the reference;32 the debate rather addresses the mundane interpretative question whether a reference has in fact been made in the particular instance.
In abstract terms, differences in treaty practice may, as always, be read in two ways. They may signify that when States wish to refer to customary law they do so in express terms, and the absence of such a reference a contrario suggests that the analysis should be limited to treaty law. Alternatively, the uncontroversial practice of making the references to customary law could suggest that some States make ex abundanti cautela express an arrangement that would have been otherwise valid. The issue cannot be resolved in abstracto and requires closer analysis from the perspective of treaty interpretation.
In the particular instance, it is important that the question is not about the existence of a rule—the treaty obligation of fair and equitable treatment exists in all these treaties—but about whether the rule is a technical term of art for a reference to custom. If the generally accepted ordinary meaning under Article 31(1) VCLT is a reference to custom, then to preclude a reference and provide a special meaning under Article 31(4) VCLT it would be insufficient for the treaty to be silent. The reference would have to be denied either explicitly or by necessary implication (for example, by elaborating it in a manner clearly different from custom).
The argument against reading fair and equitable treatment as a reference to customary law consists of several strands.33 In interpretative terms, ‘[a]s a matter of textual interpretation it is inherently implausible that a treaty would use an expression such as “fair and equitable treatment” to denote a well known concept like the “minimum standard of treatment in customary international law”’.34 More generally, it might be superfluous to restate customary rules that would be in any event binding. In terms of historical narrative, the opposition by Calvo Doctrine and the NIEO to the international standard would make it doubtful that these States would agree to the inclusion of the term in their (p.161) treaties.35 In policy terms, it would not be particularly helpful to refer to ‘arcane norms of customary international law’ for identifying the criteria for the treatment of modern investment projects.36 Overall, the textual and conceptual innovations of fair and equit-able treatment require a new level of analysis that would not involve the obsolescence of customary minimum standard.
The quotation from the previous paragraph rightly identifies the key question: does ‘fair and equitable treatment’ denote ‘international minimum standard’? This is fundamentally a question about the ordinary meaning of a treaty term. As such, it has to be answered by reference to State practice and judicial and arbitral decisions.37 The pre-Second World War practice provides considerable support for answering the question in affirmative terms.38 To recall a few examples, in the seventeenth century, British FCN treaty practice used such terms as ‘justice and equity’ to refer to different aspects of administration of justice.39 The Arbitral Tribunal in the Ambatielos case confirmed that these provisions required administration of justice in a non-discriminatory manner.40 In late eighteenth century, Chancellor Loughborough's opinion regarding the Jay Commission used ‘fair and equitable treatment’ to describe treaty claims regarding treatment of aliens.41 In the nineteenth and early twentieth centuries, the language of fairness and equity was extensively used in State practice to describe different aspects of the required treatment of aliens,42 and similar practice continued in the inter-War years.43 In the 1930 Conference for the Codification of International Law, Hackworth, on behalf of the US, suggested that one could ‘expect from the courts that standard of fairness which will be calculated to give complete justice to litigants’. Taken together, the State practice suggests that requirements ‘not to deny justice’ (or ‘not to act in an arbitrary manner’) and ‘to provide fair treatment’ expressed the same rule in respectively negative and positive terms.44 While the language was also used in other contexts, the old treaty practice and the more recent State practice provide sufficient support for accepting fair and equitable treatment as a (non-exclusive) pre-Second World War term of art for referring to customary law on the treatment of aliens.
The post-Second World War practice broadly follows the same trend. The post-War 1940s and 1950s US FCN Treaties that first used fair and equitable treatment in the modern sense were varied and left open multiple possible readings, with contextual influence from trade law, ambiguous flexibility of ‘equitable terms’, and possible replacement (p.162) of the ‘due process’ criterion all being prima facie plausible.45 However, the 1967 OECD Draft Convention on the Protection of Foreign Property (that drew upon these treaties and provided the basis for subsequent bilateral practice) seemed to equate the content of fair and equitable treatment with that of the international minimum standard.46 State practice supports this view.47 Pleadings in the ICJ (where one might expect to find the most considered statements on legal issues) show that such States as Belgium, Spain, the UK, and the US used the language of fair and equitable treatment to refer to the customary of law administration of justice (in particular for claims regarding the content of the judgment),48 as well as to customary rules of the treatment of aliens in general.49 In the ILC work on the protection of diplomatic agents in early 1970s, ‘fair treatment’ was used to incorporate all the procedural guarantees generally recognized to a detained (p.163) or accused person throughout the criminal proceedings.50 Legal writers also used the language of fairness in describing the customary standards.51
If one takes together the pre- and post-Second World War materials pre-dating investment arbitrations, it seems permissible to conclude that the ordinary meaning of fair and equitable treatment was a reference to customary minimum standard, in particular regarding administration of justice. More recent practice confirms this view by necessary implication. The considerable number of arbitral decisions that read in the elements of customary law of denial of justice (particularly regarding the exhaustion of remedies) in the treaty rules on fair and equitable treatment necessarily engage in a reference to custom. It would be prima facie impossible to derive different standards of exhaustion merely from the neutral expression of treaty language.52
The broader historical narrative of the resistance by Calvo/NIEO States is not particularly helpful. One might plausibly say both that international minimum standard was a discredited term and therefore replaced by the neutral-sounding fair and equitable treatment and that precisely because of its discredited nature the change could not have happened in such an unremarkable manner. In any event, there is considerable certainty about at least some issues: first, international minimum standard was not a common term of art in the pre-War treaty practice for reference to customary law;53 second, even outside treaty practice it was not an exclusive term for designating the (p.164) pre-War law on the treatment of aliens;54 third, fair and equitable treatment was not a post-War innovation;55 fourth, the 1950–2000s ICJ proceedings demonstrated that States (Belgium, France, Guinea, Iran, Italy, Norway, Spain, the UK, and the US) were perfectly happy to use the terminology of international minimum standard (of civilization), demonstrating that it is not, in fact, obsolete.56 At least in the absence of specific preparatory or other relevant materials, the historical narrative does not affect the argument of ordinary meaning made above.
The reference to a customary rule is not superfluous. In practical terms, it enables access to dispute settlement process under the treaty. In terms of sources, by agreeing to customary minimum standard in treaty terms, parties signify the rejection of the (Calvo) argument that the content of obligation cannot be more demanding than non-discrimination and the (NIEO) argument that there is no obligation under international law at all. To the extent that either of these positions constitutes a special customary rule, States parties to such treaties have opted back into the general rule.
The argument relying on inappropriateness of the international minimum standard for addressing modern challenges appears to rest on two questionable premises. To reject a legal argument because of its result turns the process of legal reasoning on its head, suggesting that the interpreter already has a predetermined result in mind and the legal analysis is only relevant for providing formal justification for it. The fact that the standard is not as stringent as one might expect or want, whether in general or in a particular dispute, is not a reason for rejecting a conclusion that is otherwise validly mandated by the applicable sources. More particularly, the argument about a reference to customary law is without prejudice to the question about the content of customary law, and it is perfectly possible that it has appropriately evolved since the pre-War times, therefore taking account of the concern about obsoleteness of the standard.
It is also helpful to consider the practice regarding expropriation and full protection and security, other investment treaty rules with a customary law dimension. The examination of relationship of treaty rules on expropriation and custom may be helpful in identifying the manner in which customary law becomes relevant in this field of law, possibly forming the normative background against which States engage in investment treaty-making. The classical practice, for example, in the nineteenth-century Sicilian Sulphur dispute57 and the early twentieth-century Certain German Properties case, (p.165) supported a close link between treaty and customary rules on expropriation.58 A similar view has been taken in the post-War legal writings.59
Regarding protection and security, the US explained in ELSI that ‘[t]he effect of the Treaty is to translate these generally recognized and extensively applied principles of international law [concerning the treatment of aliens] into a concrete and explicit set of bilateral obligations’.60 The ELSI Court accepted the relevance of customary law of protection and security.61 Even though it did not take a position regarding expropriation, both the US and Italy accepted the relevance of customary law.62 The IUSCT addressed expropriation in considerable detail, and despite disagreement about some aspects relating to creeping expropriation, there seemed to be broad agreement that most cases drew on customary law.63 The more recent State practice64 and case law have treated differently expressed rules on expropriation as referring to customary law.65 The law of expropriation and the international minimum standard have been classically interrelated, even though conceptual uncertainties during the pre-War debates resulted in expropriation being developed as a separate rule.66 From the 1920s law of Certain German Interests, if not from the 1830s law of Sicilian Sulphur, the treaty rules relating on the treatment of aliens have been read as liberally referring to customary law on the issue, and treating fair and equitable treatment as a reference to custom would go with the grain of the law in the area.
If the ordinary meaning of a treaty term refers to a customary rule, the content of the customary rule directly informs the ordinary meaning of the treaty term (to borrow the (p.166) elegant turn of phrase from the US pleading in ELSI, translates general international law into a treaty obligation).67 Consequently, the meaning of the obligation to provide fair and equitable treatment is established by examination of the content of the customary minimum standard. With all due caution, the technical meaning attributed to fair and equitable treatment in other contexts might provide certain residual interpretative influence at least in two distinct ways. On the one hand, the practice of trade and commercial treaties confirms that the rule formulated as fair and equitable treatment is capable of applying to the treatment of sophisticated corporations in complex commercial settings, moving beyond the classically limited paradigms.68 On the other hand, a number of strands of practice caution from very different perspectives against deriving excessively stringent obligations from the language itself: in the commercial treaties, extensive legis-lative intervention was necessary to make concrete the content of the obligation so as to make it operational;69 in State practice, the term was used to formulate broad, flexible and equity-based rules;70 finally, in the ICJ cases, States invoked fair and equitable treatment to refer specifically to denial of justice by unjust judgments,71 the aspect of denial of justice famously most complicated to demonstrate.72 While the content of the standard is to be established by reference to custom, the residual interpretative influence of the reference is helpful in identifying the arguments that go (or do not go) with the grain of international practice.
2. Taking into account the international minimum standard
Customary law can be taken into account in the interpretative process even if one were to reject the argument that fair and equitable treatment refers to the customary minimum standard. The difference is that its introduction would have to be considered not as a matter of Article 31(1) VCLT but as a matter of Article 31(3)(c) VCLT. First, unlike the earlier argument of Article 31(1) that attempted to identify a reference to general international law, Article 31(3)(c) is activated by the mere presence of ‘relevant’ international law. The ‘relevance’ of the customary minimum standard for the interpretation of fair and equitable treatment seems unquestionable. The whole spectrum of positions in treaty law and arbitral practice, from identifying treaty with custom to finding custom to be archaic or modern, similar to treaty in general or in the particular instance necessarily rests on the same premise: treaty and customary rules address the same subject matter, whether with the same or different content.73
Second, Article 31(3)(c) VCLT deals only with the narrow but important issue of admissibility of interpretative materials. If rules of general international law are relevant, then the chapeau of Article 31(3) imperatively requires that they are taken into account. It is complicated to explain within the VCLT framework the position of Tribunals that consider treaty rules to be ‘autonomous’ (and are content to note that customary law on the issue exists as an entirely different stratum of law that might lead to a similar or different solution in general or in the particular instance).74 The acknowledgment of similarity of the subject matter immediately satisfies the criterion of admissibility, and the interpreter has no choice but to take customary law into account as an interpretative authority. Consequently, even if fair and equitable treatment does not refer to the (p.167) customary standard, the standard is always an admissible interpretative material of fair and equitable treatment due to its relevance. However, the question of admissibility of customary law as an interpretative material is entirely different from its weight in the interpretative process.
Third, the weight of customary law introduced by virtue of Article 31(3)(c) is determined by the chapeau of Article 31(3). Unlike the introduction of the customary minimum standard pursuant to a reference (that would directly affect the ordinary or special meaning of fair and equitable treatment), customary minimum standard introduced pursuant to its relevance has only the same weight as context. Consequently, customary law should perform the subtle contextualizing role of simultaneously explaining similarities and contrasting differences. In the Chevron case, the Tribunal relied on the customary law of denial of justice both to illuminate the criteria of the treaty obligation to provide effective means of redress and to contrast the differences between treaty and custom. Criteria for determining delay and burden of proof regarding exhaustion from customary law could be relied upon in explaining the treaty rule, while the ordinary meaning of the treaty term qualified the customary obligation to fully exhaust remedies.75 Similarly, the rules from customary minimum standard would explain the content of fair and equitable treatment to the extent that perceptibly different rules do not follow from its formulation.
The vagueness of the formulation of fair and equitable treatment76 makes the argument about perceptible differences between the ordinary meaning and (context-level) customary law complicated to demonstrate. Consequently, the introduction of customary law at the level of context carries significant weight in the interpretative process. In effect, the result of the interpretative process is similar to that achieved by treating fair and equitable treatment as a reference to custom, even if the intellectual justification for prioritizing custom relies on the considerable weight that context can play in the interpretation of vague terms, rather than direct reference to custom by the term itself. Moreover, the pedigree of fair and equitable treatment in different contexts suggests openness to further elaboration and specification, and therefore supports giving considerable weight to rules providing more detailed criteria.77 Finally, when the treaty formulation of fair and equitable treatment provides examples of its meaning, the interpreter has to engage in analysis similar to that carried out by the Chevron Tribunal, distinguishing those elements of the treaty text that restate customary law (and therefore customary criteria can be relied upon in their elaboration) from those that provide for different content (and therefore customary criteria cannot, or at least cannot directly, be relied upon). Whatever approach one adopts, the content of general international law is likely to provide at least an authoritative starting point for determining the content of the treaty.
Part I of the book explored the process of law-making of the international minimum standard. Part II has analysed the legal basis of the international standard, arguing both in negative and positive terms that treaty rules of fair and equitable treatment refer to, or at the very least require, the customary minimum standard to be taken into account in the interpretative process. Part III elaborates the content of the modern international minimum standard. (p.168)
(1) Ch 5; M Paparinskis, ‘Sources of Law and Arbitral Interpretations of Pari Materia Investment Protection Rules’ in OK Fauchald and A Nollkaemper (eds), The Practice of International and Nationals Courts and the (De-)Fragmentation of International Law (Hart Publishing, Oxford 2012).
(2) This section summarizes the argument that is made in M Paparinskis, ‘Investment Treaty Interpretation and Customary Investment Protection Law: Preliminary Remarks’ in C Brown and K Miles (eds), Evolution in Investment Treaty Law and Arbitration (CUP, Cambridge 2011) 65–80, 90–1.
(3) Saluka Investment BV v Czech Republic, UNCITRAL Case, Partial Award, 17 March 2006 15 ICSID Rep 274 –.
(5) C McLachlan, ‘Investment Treaties and General International Law’ (2008) 57 ICLQ 361; TW Waelde, ‘Interpreting Investment Treaties: Experience and Examples’ in C Binder and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP, Oxford 2009); A Gourgourinis, ‘Lex Specialis in WTO and Investment Protection Law’ (2010) 53 German Ybk Intl L 579; A Gourgourinis, ‘The Distinction between Interpretation and Application of Norms in International Adjudication’ (2011) 2 J Intl Dispute Settlement 31; Paparinskis ‘Preliminary Remarks’ (n 2).
(6) Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France)  ICJ Rep 177 .
(7) Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 31(3)(c).
(8) G Abi-Saab, ‘The Appellate Body and Treaty Interpretation’ in G Sacerdoti and others (eds), The WTO at Ten—The Contribution of the Dispute Settlement System (CUP, Cambridge 2006) 463.
(9) ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, Leiden/Boston 2009) 433.
(10) G Marceau, ‘Conflict of Norms and Conflict of Jurisdictions: The Relationship between WTO Law and Agreements and Other Treaties’ (2001) 35 World Trade J 1081, 1087; J Pauwelyn, Conflict of Norms in Public International Law (CUP, Cambridge 2003) 253–74.
(11) B Simma and T Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology’ in C Binder and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP, Oxford 2009) 696.
(13) Djibouti (n 6) .
(14) Oil Platforms (Iran v US) (Judgment)  ICJ Rep 161, Separate Opinion of Judge Higgins 225 ; F Berman, ‘Treaty Interpretation in a Judicial Context’ (2004) 29 Yale J Intl L 315, 320; R Gardiner, Treaty Interpretation (OUP, Oxford 2008) 278–80.
(15) Loewen v US, ICSID Additional Facility Case no ARB(AF)/98/3, Award, 26 June 2003 (2003) 42 ILM 811 –; Z Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151, 163; Z Douglas, ‘Other Specific Regimes of Responsibility: Investment Treaty Arbitration and ICSID’ in J Crawford, A Pellet, and S Olleson (eds), The Law of International Responsibility (OUP, Oxford 2010) 821–8.
(16) Sempra Energy International v Argentina, ICSID Case no ARB/02/16, Decision on the Application for Annulment of the Award, 29 June 2010 (2010) 49 ILM 1445 –; see also CMS Gas Transmission Company v Argentina, ICSID Case no ARB 01/08, Decision of the ad hoc Committee on the Application for Annulment, 25 September 2007 14 ICSID Rep 251 –.
(18) ILC, ‘Draft Articles on the Law of Treaties with Commentaries’ in Yearbook of the International Law Commission, 1966, Volume II, UN Doc A/CN.4/SER.A/1966/Add.1 112, 221 . For a similar if terminologically differently expressed point see Gourgourinis ‘Distinction’ (n 5) 49–51.
(19) Djibouti (n 6) . Simma and Kill explain that ‘the impact of the rule on the interpretation of the treaty in dispute should be low. If, however, the rule does provide “operational guidance” for the determination of the meaning of a treaty's terms as argued by either party, then it is appropriate for that rule to play a greater role in informing the interpreters understanding of the treaty’, Simma and Kill ‘Harmonizing Investment Protection’ (n 11) 696.
(20) Gardiner Treaty Interpretation (n 14) 185–6.
(21) C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279, 311–13.
(22) Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, UN Doc A/CN.4/L.682 .
(23) Conclusions of the Work of the Study Group, ‘Fragmentation of International Law: Difficulties Arising from Diversification and Expansion of International Law’, UN Doc A/CN.4/L.682 Add 1 [19(a)], [20(a)]–[(c)].
(24) McLachlan ‘Investment Treaties and General International Law’ (n 5) 361, 381 (emphasis in the original), more generally 380–3.
(25) Conclusions of the Work of the Study Group (n 23) [19(a)], basing the ‘positive presumption’ on Georges Pinson (France v Mexico) (1928) 5 RIAA 327, 422.
(26) JE Alvarez, ‘The Factors Driving and Constraining the Incorporation of International Law in WTO Adjudication’ in ME Janow and others (eds), The WTO: Governance, Dispute Settlement & Developing Countries (Juris Publishing, Inc., New York 2008) 622.
(27) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits)  ICJ Rep 392 .
(28) Aegean Sea Continental Shelf (Greece v Turkey) (Judgment)  ICJ Rep 3 .
(29) Chevron Corporation and Texaco Petroleum Corporation v Ecuador, PCA Case no 34877, Partial Award on the Merits, 30 March 2010 .
(33) The authors who have taken the view that fair and equitable treatment does not refer to customary standard include FA Mann, ‘British Treaties for the Promotion and Protection of Investments’ (1981) 52 BYIL 241, 243 (although see a different position in an earlier pleading on behalf of Belgium in Barcelona Traction, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) ICJ Pleadings Volume VIII 56–7, cited at n 49; and in later writings, FA Mann, The Legal Aspects of Money (5th edn Clarendon Press, Oxford 1992) 427, 556); S Vasciannie, ‘The Fair and Equitable Treatment Standard in International Investment Law and Practice’ (1999) 70 BYIL 99, 139–45; I Tudor, The Fair and Equitable Treatment Standard in the International Law of Foreign Investment (OUP, Oxford 2008) 53–68; R Kläger, Fair and Equitable Treatment in International Investment Law (CUP, Cambridge 2011) Ch 4.
(34) CH Schreuer, ‘Fair and Equitable Treatment (FET): Interactions with Other Standards’ (2007) 4 (5) Transnational Dispute Management 10.
(35) Vasciannie ‘Fair and Equitable Treatment’ (n 33) 144.
(36) T Weiler and WT Waelde, ‘Investment Arbitration under the Energy Charter Treaty in the Light of New NAFTA Precedents: Towards a Global Code of Conduct for Economic Regulation’ (2004) 1 (1) Transnational Dispute Management 19–27; T Weiler and I Laird, ‘Standards of Treatment’ in P Muchlinski, F Ortino, and CH Schreuer (eds), The Oxford Handbook of International Investment Law (OUP, Oxford 2008) 269–70.
(39) Treaty between Great Britain and Sweden (adopted 11 April (13 May) 1654) Hertslet Collection Volume II 310 art 5; Treaty of Peace and Commerce between Great Britain and Denmark (adopted 11 July 1670, entered into force 11 August 1670) C Parry (ed), The Consolidation Treaty Series (Volume 11, 1668–1671, Oceana Publications, Inc., Dobs Ferry, New York 1969) 366 (English translation) art 24.
(40) Ambatielos (Greece/UK) (1956) 12 RIAA 83, 108–9.
(41) Opinion of Lord Justice Loughborough (1798) 1 Moore Intl Arbitrations 326, 327.
(44) S Rosenne (ed), League of Nations Conference for the Codification of International Law  (Volume IV, Oceana Publications, Inc., New York 1975) 1576. Freeman explained how ‘fairness’ provided the ultimate criterion of denial of justice, AV Freeman, The International Responsibility of States for Denial of Justice (Longmans, Green & Co., London 1938) 267. The conceptual similarity between the prohibition of arbitrary conduct and the affirmation of fair and equitable treatment was later noted by the US in ELSI, see n 49.
(46) ‘OECD Draft Convention on the Protection of Foreign Property’ (1963) 2 ILM 241 art 1, 244; ‘OECD Draft Convention on the Protection of Foreign Property’ (1968) 7 ILM 117 art 1, 120; cf Asian Agricultural Products Ltd v Sri Lanka, ICSID Case no ARB/87/3, Final Award on Merits and Damages, 21 June 1990 (1991) 30 ILM 580, Dissenting Opinion of Asante 628 –.
(47) In the Barcelona Traction case, a US note to Spain was cited regarding the treatment of Barcelona Traction that the US considered ‘motivated by a more general concern to secure equitable treatment of foreign investments in Spain’, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain)  ICJ Rep 3 ; for the text of the note and earlier US notes protesting the arbitrary mistreatment of the company, see Barcelona Traction Pleadings (n 33) Volume VIII 449–50 (Lauterpacht on behalf of Belgium). For the Swiss position, LC Caflisch, ‘La pratique Suisse en matière de droit international public 1979’ (1980) 36 Schweizerisches Jahrbuch für internationales Recht 138, 178–9.
(48) In the Ambatielos case, the UK argued that ‘Mr. Ambatielo's claim is that … treatment he received was unfair, unjust and inequitable. … that is a matter which does not raise any issue on the Treaty but does raise issues under well-known principles of general international law . … His claim is in fact that the treatment he received was so inequitable as to amount to a denial of justice under international law’, Ambatielos case (Greece v UK) ICJ Pleadings 479 (Fitzmaurice). In the Interhandel case, the US argued that the proceedings ‘were conducted in full compliance with the standards of international law for a fair hearing’, Interhandel case (Switzerland v US) ICJ Pleadings 457 (Townsend) and promised ‘fair treatment’ ‘in the United States courts’, ibid 612 (Becker). In the Barcelona Traction case, Belgium relied on the ‘fair trial, this equitable process which international law permits foreigners to invoke when they appear before tribunals of countries other than their own’, Barcelona Traction Pleadings (n 33) Volume VIII 305–6 (Rolin) (author's translation), see also ibid Volume II 369 (Rolin). While rejecting the substance of the argument, Spain accepted the ‘equitable process (fair trial)’ terminology, ibid Volume IX 82, 85 (Guggenheim). Spain elaborated its position by saying that ‘the judicial decisions of which complaint was made were in all cases just, fair and equitable . … the positive rules of customary international law on State responsibility for the contents of municipal judicial decisions already require that, to create an international responsibility, the decisions must be grossly unjust, notoriously unfair and manifestly inequitable’, ibid Volume IX 470 (Guggenheim).
(49) In the Barcelona Traction case, Belgium explicitly referred to FCN Treaty rules on equitable treatment as assuring ‘something that is customary in public international law, namely treatment that is fair, reasonable and objective, that is neither arbitrary, nor abusive, nor discriminatory’, Barcelona Traction Pleadings (n 33) Volume VIII 56–7 (Mann). It also referred to ‘the minimum of equitable treatment that the qualifying aliens may invoke pursuant to international law’, ibid Volume I 164 fn 3 (Memorial) (author's translation) (Spain rejected the substance of the ‘equitable treatment’ argument without questioning the appropriateness of addressing the law on the treatment of aliens under this heading, ibid Volume IV 556 , 557 , 558  (Counter-Memorial of Spain)). In the ELSI case, the US described its treaty practice prohibiting arbitrary or unreasonable treatment, and pointed out the similar practice by which ‘other treaties, rather than prohibiting unfair or unequal treatment, affirmatively guarantee fair and equitable treatment’, Elettronica Sicula S.p.A. (ELSI) (US v Italy) ICJ Pleadings Volume I 77 fn 2 (for US, ‘arbitrariness’ was closely linked to ‘due process of law’ in takings and the customary minimum standard, ibid 93) (Memorial). Perhaps also Nottebohm case (Liechtenstein v Guatemala) ICJ Pleadings Volume II (Molina on behalf of Guatemala).
(50) ILC, ‘Draft Articles on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons with Commentaries’ in Yearbook of the International Law Commission, 1972, Volume II, UN Doc A/CN.4/SER.A/1972/Add.1 312 art 8, Commentary. In the ILC debate, Elias introduced the term ‘fair treatment’ because ‘[t]hat wording would better convey the intention … to guarantee to the alleged offender not only that he would have a fair trial at the hearing in court, but also that he would be properly treated during earlier stages of the proceedings’, ILC, Yearbook of the International Law Commission, 1973, Volume I, UN Doc A/CN.4/SER.A/1972 224 . He also referred to ‘fair and equitable treatment from the time of arrest until judgment’, ibid 225 . The relevance of the international minimum standard was also appreciated by the ILC (even if considered to be expressed by human rights), ibid 225–6.
(51) Fenwick wrote that ‘the international standard … means a standard which the public opinion of the civilized world has come to accept as just and equitable’, CG Fenwick, ‘The Progress of International Law during the Past Forty Years’ (1951) 79 Recueil des Cours de l’Académie de Droit International 5, 44. Henkin explained the creation of an international standard by the fact that ‘States were concerned … that their nationals (and property of their nationals) be treated reasonably, “fairly”’, L Henkin, ‘International Law: Politics, Values and Functions’ (1989) 216 Recueil des Cours de l’Académie de Droit International 9, 209. Asante stated that one of the underlying principles was the duty of the State to display fair and equitable treatment, SKB Asante, ‘International Law and Investments’ in M Bedjaoui (ed), International Law: Achievements and Prospects (UNESCO, Paris 1991) 669; cf AAPL Asante (n 46) -.
(52) Rumeli Telekom A.S. and Telsim Mobil Telekomikasyon Hizmetleri A.S. v Kazakhstan, ICSID Case no ARB/05/16, Award, 29 July 2008 ; Jan de Nul N.V. and Dredging International N.V. v Egypt, ICSID Case no ARB/04/13, Award, 6 November 2008 15 ICSID Rep 437 –; Pantechniki S.A. Contractors and Engineers v Albania, ICSID Case no ARB/07/21, Award, 30 July 2009 ; ATA Construction, Industrial and Trading Company v Jordan, ICSID Case no ARB/08/2, Award, 12 May 2010 ; Frontier Petroleum Services Ltd v Czech Republic, UNCITRAL Case, Final Award, 12 November 2010 ; Sergei Paushok, CJSC Golden East Company, CJSC Vostokneftegaz Company v Mongolia, UNCITRAL Case, Award on Jurisdiction and Liability, 28 April 2011 ; Alps Finance and Trade AG v Slovakia, Ad hoc Case, Award, 5 March 2011 –; White Industries Australia Limited v India, UNCITRAL Case, Final Award, 30 November 2011 [10.4.5]–[10.4.9], [10.4.20]; Spyridon Roussalis v Romania, ICSID Case no ARB/06/1, Award, 7 December 2011 . More broadly, the decisions that systematize jurisprudence constante regarding other treaties, or derive principles from case law or domestic law, necessarily assume a very broad approach to admissibility. It is not obvious that there is an elegant way of distinguishing between finding admissible the elaboration of other treaties but not customary law.
(54) ‘International minimum standard’ does not appear in the 1929 Harvard Draft Convention, ‘Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners’ (1929) 23 AJIL Special Supplement 133, or in the text adopted in the 1930 Hague Conference, ‘Text of Articles Adopted in First Reading by the Third Committee of the Conference for the Codification of International Law’ League of Nations publication, V.Legal, 1930.V.17, and a number of pre-War authors took the view that the international standard was simply another way of presenting the broad view of denial of justice, Ch 2 n 76.
(57) In the 1837–1842 Sicilian Sulphur dispute Great Britain argued that Sicily had granted sulphur monopoly rights to French traders in breach of the rights of property protection provided by the 1816 Treaty of Commerce, Sicilian Sulphur dispute (1839–1840) 28 British and Foreign State Papers 1163, 1201–42, especially 1218–19 (Lord Palmerston), ‘interpreting the words of the Commercial Treaty in the light of general principles of international law’, Oscar Chinn (UK v Belgium) PCIJ Rep Series C No 75 43  (Memorial of the UK), also ibid 44 .
(58) Germany and Poland disagreed whether a provision of the Versailles Treaty regarding liquidation included general obligations regarding protection of property of aliens, and Kaufmann, on behalf of Germany, submitted that ‘[n]o rule of written law exists in vacuum. … It is precisely the general international law regarding aliens that can provide the necessary perspectives’, Certain German Interests in Polish Upper Silesia (Germany v Poland) PCIJ Rep Series C No 11 Volume I 167 (author's translation); ibid Volume III 838–9 (German Counter-Memorial); Volume I 162–74, 261–2 (Kaufmann). Poland disagreed, arguing that the treaty entitlement to liquidate did not entail the obligation to respect the private property in accordance with general international law, ibid Volume I 211–20, 286 (Sobolewski). The Court agreed with Germany and found that ‘subject to provisions authorising expropriation, the treatment accorded to Germany private property, rights and interests in Polish Upper Silesia is to be treatment recognised by the general accepted principles of international law’, Certain German Interests in Polish Upper Silesia (Germany v Poland)  PCIJ Rep Series A No 7 21. Count Rostworowski was the sole dissenter: ‘However worthy of all respect general international law may be, it is certain that it was not incorporated by the will of the parties’, ibid Dissenting Opinion of Count Rostworowski 86, 90.
(59) I Seidl-Hohenveldern, ‘The Abs-Shawcross Draft Convention to Protect Private Foreign Investment: Comments on the Round Table’ (1961) 10 J Public L 100, 107–8 (describing the contrary view as ‘alien to international law in general’). Metzger disagreed, but probably less about the possibility to refer to customary law than about the scope of the treaty rule itself from which such a reference could be made, SD Metzger, ‘Multilateral Convention for the Protection of Private Foreign Investment’ (1960) 9 J Public L 133, 141.
(60) United States Diplomatic and Consular Staff in Tehran (US v Iran) ICJ Pleadings 180 (Memorial).
(61) Elettronica Sicula S.p.A. (ELSI) (US v Italy)  ICJ Rep 15 .
(64) 2004 Canada Model BIT Annex B. 13(1); 2004 US Model BIT Annex B; 2012 US Model BIT Annex B.
(65) Pope & Talbot Inc. v Canada, UNCITRAL Arbitration, Interim Award, 26 June 2000 122 ILR 316  (‘tantamount to expropriation’); Saluka (n 3)  (‘deprivation’); LG&E v Argentina, ICSID Case no ARB/02/1, Decision on Liability, 3 October 2006 (2006) 21 ICSID Rev—Foreign Inv L J 203  (‘tantamount to expropriation’).
(67) n 62.
(75) Chevron (n 29) , , , , .