Human Rights inapplicable in international investment arbitration?
On 26 June 2012, the International Centre for Settlement of Investment Disputes (ICSID) of the World Bank rejected a joint petition from ECCHR and the chiefs of four indigenous communities of Chimanimani, Zimbabwe to be admitted as amici curiae in two related cases, in which European investors sought to sue the Government of Zimbabwe. This decision has been seen by commentators as a sign of a conservative shift, limiting the transparency of ICSID procedures as well as opportunities for the participation of affected persons and third parties.
The related cases Border Timbers Limited and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/25 and Bernhard von Pezold and others v. Republic of Zimbabwe (ICSID Case No. ARB/10/15 are being heard by the ICSID, a court of arbitration of the World Bank. The court has jurisdiction in the case on the basis of a bilateral investment protection agreement which Germany and Switzerland both entered into with Zimbabwe.
The cases concern territories in Zimbabwe in which the claimants, a group of European investors, currently operate timber plantations. During the course of Zimbabwe’s land reform program, the government compulsorily acquired these properties. The claimants are now seeking the return of the land along with full legal title and exclusive control of the properties.
ECCHR, together with the indigenous chiefs, sought to draw the tribunal’s attention to the fact that these properties are located on the ancestral territories of the native peoples. The relevance of human rights law to the determination of investment disputes has repeatedly been recognized in previous ICSID cases. The current petitions argued that in reaching its decision, the tribunal must take into account the consultation and property rights of the indigenous groups under international law.
The tribunal rejected the petition of amicus curiae status, despite acknowledging that the proceedings may well impact upon the rights of the affected indigenous communities. The tribunal argued that “(t)he Petitioners, in effect, seek to make a submission on legal and factual issues that are unrelated to the matters before the Arbitral Tribunals.”