條約衝突的類型、解釋、與制度性限制－－國際投資仲裁之例

Treaty Conflict through the Lens of International Investment Arbitration－Typology, Interpretation, and Judicial Decision-Making

在一系列與能源及天然資源投資相關的仲裁案中，地主國阿根廷提出外人投資保護與人權保障間之衝突，並請求仲裁庭優先適用人權規範。然而均無法如其所願。本文於從法理上分析條約衝突在古典國際法下的定義與目前通說的利弊之後，發現問題核心－系爭條約之解釋，在投資仲裁庭普遍於決策時採取司法最小主義的情況下，幾無機會被用以證立人權義務的優位性。除此之外，不論從管轄權與準據法，或是裁定的撤銷與判決先例的存否，人權義務同樣沒有破繭而出的可能。最後，基於以上結論，本文指出，投資與人權間不該是零和賽局式的規範衝突，而應當是非零和賽局的，兩項規範彼此間對於實踐資源與空間的競逐。承擔國際人權義務的地主國，自當於簽訂投資保障條約及相關自由貿易協定的前後，調整既有的人權政策與法規環境，使其能夠適於國家整體發展的進程，進而達到人權與投資間的規範調和。

In recent years, one of the most prominent and urgent problems in investment treaty arbitration is how the different branches and norms of international law interact, especially between human rights and foreign investment protection. What is contested, and the so-called “legitimacy crisis” and democratic deficit, is how much confidence and reliance should be placed on these arbitrators, officials and entities, particularly when exercising international public authority. Many human rights advocates, environmentalists, and anti-globalization activists decry the “faceless bureaucrats” at the investment tribunals, whom they see as undermining host states’ sovereignty, democracy, and regulatory autonomy to protect their citizens’ human rights. In all these investment arbitration awards, the claim of treaty conflict between human rights and foreign investment protection was made by Argentina in order to justify the violations of investment treaty obligations. Unfortunately, tribunals tended to prevent having to decide serious treaty conflicts. In this article, part I begins introducing the prerequisite and definition of treaty conflict under classic international law, especially the narrow-meaning approach took by most of international courts and tribunals. In Part II, I take a step forward to elaborate the Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which suggests that interpreters of a treaty should take into account “any relevant rules of international law applicable in the relations between the parties.” In part III, the alternatives beyond treaty conflict, including jurisdiction, revocation of awards, and “precedent,” will be examined. This article concludes that conflict of norms represents a zero-sum game between human rights and investment protection. This oversimplifies the choices presented by any host state’s decision permitted under international law. It erroneously suggests that we must sacrifice one set of goals entirely to the other because the two sets are fundamentally incompatible. I maintain that we might find ways to reconceptualize and develop investment treatment standards that allow us to have some of each.