Human rights, risks, and new strategies for global investment

Journal of International Economic Law

Volumn 9, Issue 3, 2006, Pages 657-705

  Leader, Sheldon ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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EID: 33749037163     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgl015     Document Type: Review

References (147)

1. See, e.g., Special Report on Business and Development 'Seeds of a New Understanding', the Financial Times, 24 June 2004, 2. 'Investor' here is distinguished from lender and refers to (a) those entities which are directly involved in building and/or operating projects and (b) those who provide equity financing for such projects. Lenders are often also involved as interested parties in the legal frameworks being discussed, and in the social and political issues standing behind such frameworks, manifest by the concerns of the private banks adhering to the Equator Principles. See below n 3.
2. 'Related standards' refers to requirements of international environmental and health and safety law that overlap with human rights guarantees.
3. For the content and mode of operation of these principles, see http://www.equator-principles.com/.
4. http://www.exxonmobil.com/corporate/Citizenship/ Corp_citizenship_Com_transparency.asp.
5. These pronouncements accompany the specific mention, in core project documents applicable to the daily activities of these companies, of several international conventions covering environmental protection; health and safety; and core labour standards.
6. See the various publications of the International Institute for Sustainable Development. http://www.iisd.org/
7. For example, the Republic of Chad's obligations to investors in the exploitation and transport of its petroleum is not regulated by an investment treaty, but is regulated by an investment contract, to be considered below.
8. On the problem of unavailability of these agreements for public inspection, see Contracting Out of Human Rights: Chad, Cameroon and the Oil Consortium Led by Exxonmobil (UK: Amnesty International, 2005) 11.
9. Cf. J. Sax, 'Takings and the Police Power', 74 Yale Law Journal 36 (1964).
10. M. Sornarajah, The International Law on Foreign Investment (2nd edn, Cambridge: Cambridge University Press, 2004) chap 9.
11. Amr A. Shalakany, 'Arbitration and the Third World: A Plea for Reassessing Bias Under the Specter of Neoliberalism', 41(Spring) Harvard International Law Journal (2000) 419, at 454.
12. Paul E. Comeaux and N. Stephan Kinsella, 'Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA and OPIC Investment Insurance', 15 New York Law School Journal of International and Comparative Law (1994) 20.
13. Jeswald W. Salacuse and Nicholas P. Sullivan, 'Do BITs Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain', 46 1 Harvard International Law Journal (2005) 67.
14. Texaco v Libyan Arab Republic [1978] 17 ILM 1, paras 58 ff.
15. This link between sovereignty, basic rights, and duties can be seen in the UN General Assembly Resolution of 1962 on Permanent Sovereignty over Natural Resources: 'The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned'.
16. For further development of the civic perspective, see S. L. Leader, 'Collateralism', in R. Brownsword (ed.), Global Governance and the Search for Justice (Oxford: Hart Publishing, 2005) 53-67;
17. Leader, 'Human Rights and International Trade II', in P. Macrory et al. (eds), Understanding the World Trade Organization: Perspectives from Law, Economics and Politics (New York: Springer, 2005) 664-95.
18. On the required effectiveness of a remedy, see D. Shelton, Remedies in International Human Rights Law (2nd edn, OUP, 2005) 127-29. On the subject/object distinction, see Ernst-Ulrich Petersmann, ' . . . human rights instruments recognize . . . the objective of treating individuals as legal subjects rather than as mere objects of paternalistic government policies'.
19. 'Constitutionalism and WTO Law', in D. L. M. Kennedy and J. D. Southwick (eds), The Political Economy of International Trade Law (CUP, 2002) 40. Prof. Petersmann connects this point with two wider ones: a/recognizing and protecting human rights requires a 'bottom-up' human rights approach rather than a 'top-down' approach which focuses on the freedom of governments (Ibid, 40), and that such rights should take as their foundation the aim to achieve individual autonomy. b/This in turn is linked to the claim that '. . . values can be derived only from individuals and from their human rights, and the end of states is only to serve individuals and their human rights . . .' (Ibid, 50) (cf. Petersmann, 'Theories of Justice, Human Rights and Markets', 37 Loyola Law Review (2003) 407, at 416-17). My argument would support a/but not necessarily b/if the latter would lead investment law to downplay the rights claims of certain groups and members of cultures that arguably respect human rights, but which support institutions that do not locate individual autonomy at the foundation of their concerns. Investment in e.g. medical services can encounter such cultures around the world.
20. On this issue, see S. L. Leader, 'Toleration Without Liberal Foundations' Ratio Juris 10:2, (June 1997) 139-64 and Biku Parekh, Re-Thinking Multiculturalism (2nd edn, Palgrave Macmillan, 2006) passim.
21. For this distinction, see H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961) 75 ff, and cf his 'self-embracing' species of sovereignty, which fixes the capacity of the sovereign for the future. Constitutionally embedded basic rights, as well as those which form part of domestic law in a monistic system, provide the elements fixing what the sovereign can bind itself to in the future.
22. For a conception of sovereignty that is not 'state centered' but grounded in the basic rights of subjects, see D. Held, 'Law of States, Law of Peoples: Three Models of Sovereignty', 8 Legal Theory (2002) 1, at 17 ff.
23. I am grateful to Martijn van Empel for a discussion clarifying this point.
24. See the periods covered by the BTC and Chad/Cameroon agreements below.
25. See Sornarajah, above n 10, 419 ff.
26. Cf. Comeaux and Kinsella, above n 12.
27. The UK Court of Appeal has said that ' . . . a government cannot fetter its duty to act for the public good. It cannot bind itself, by an implication in the contract, not to perform its public duties': Czarnikow Ltd v Rolimpex (C.A.) [1978] 1 All E.R. 81, 89 per Denning MR. The US Federal Courts have said that 'Actions of a general and public character, implementing programs in the national interest, are considered to be acts of the sovereign for which [the USA] cannot be held liable in damages': Wunderlich Contracting Co v United States 351 F.2d 956 (Ct. Cl. 1965) at 967.
28. French law follows substantially the same principle. See French law governing the concept of imprévision in the contrat administratif. See Long, M., Weill, P. Braibant, G et al., Les grands arrêts de la jurisprudence administrative (14th edn, Paris: Sirey, 2003); Conseil d'Etat, CE 1912 Société des Granites Porphyroides des Vosges, D.1916.3.35, concl. Blum, S.1917.3.15, concl. Blum, RDP 1914.145 note jeze; CE 1973 Société d'exploitation électrique de la rivière du Sant, Rec. 48; CJEG 1973.239 JCP 1974.II.17629.
29. For the provision in the Chad-Cameroon Pipeline see COTCO-Cameroon Convention 1997, Article 30.1-2 [hereafter COTCO 1997]; TOTCO-Chad Convention 1998, Article 21.5 [hereafter TOTCO 1998]; Consortium-Chad Convention for the Development of Oil Fields Article 34.4 [hereafter Chad 2004]. For the BTC pipeline, see the Host Government Agreement between Turkey and the Consortium led by British Petroleum [hereafter BTC 2000] preamble. For a provision that is intended to have supremacy over a host country constitution, see the Mineral Development Agreement between the Government of the Republic of Liberia and Mittal Steel Holdings, N.V. 17 August, 2005, Article XIX, Section 9, together with Article I Section 1.20.
30. Law No. 97-16 of 7 August 1997 Official Journal of 1 October 1997.
31. For this feature, see Sornarajah, above n 10, 416 ff.
32. See Revere Copper & Brass, Inc. v OPIC, 17 ILM [1978], 1321 at 1342, in which the arbitral tribunal held that the Government of Jamaica had wrongfully violated the tax-stabilization clauses of Revere's agreement, even though a Jamaican court had declared those clauses null and void.
33. See also Christopher T. Curtis, 'The Legal Security of Economic Development Agreements', 29 Harvard International Law Journal (1988) 317.
34. I. Brownlie, Principles of International Law (5th edn, OUP, 1998) 549 ff.
35. For an insightful discussion of the principle and its place in the interpretation of investment contracts, see T. Waelde and G. Ndi, 'Stabilizing International Investment Commitments: International Law vs Contract Interpretation', 31 Texas International Law Journal (1996) 215 esp Part IV.
36. A leading critic along these lines is Sornarajah. See above n 10, 420.
37. I am indebted to Ms Ozgur Can for this point, and see the argument along these lines in Sornarajah, above n 10, 421.
38. On this conflict, see S. R. Chowdhury, 'Permanent Clauses, Compensation and Co-operation', in K. Hossain and S. R. Chowdhury (eds), Permanent Sovereignty Over Natural Resources in International Law (London: Francis Pinter, 1984) 53 cf. UN General Assembly Resolution of 1962, esp paras 1 and 8, Charter of Economic Rights and Duties of States, 1974 cf. Brownlie, above n 28, 544 ff.
39. Resolution, paragraph 1.
40. The provisions in Vienna Convention, Article 30, on successive treaties are qualified to make room for UN Charter, Article 103: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.'
41. The need to keep abreast of the dynamic features of the standards to which the IFC refers has been made clear in 'Human Rights, the IFC, and the Private Sector' by Rachel Kyte, Director, Environment and Social Development Department, IFC. 'The IFC Approach . . . sends the message that human rights are not a compliance, tick-box issue. Economic Social and Cultural Rights are progressively realized', http://www.ifc.org/ifcext/policyreview.nsf/ AttachmentsByTitle/Human+Rights+Presentation/$FILE/ Human+Rights+Presentation+-+02-14-05.pdf.
42. Ibid. See also the statement by Peter Woicke, formerly Executive Vice President of the IFC, '[We have] . . . started the process of helping ourselves and our clients articulate where they are helping to progressively realize human rights . . . '. Conference on Human Rights and Development, Center for Human Rights and Global Justice, New York University Law School, 1 March 2004, http://www.ifc.org/ifcext/home.nsf/AttachmentsByTitle/PW_Human_Rights/ $FILE/PW_Human_Rights.pdf.
43. http://www.equator-principles.com/principles.shtml.
44. IFC Performance Standards on Social and Environmental Sustainability, April 30 2006, Performance Standard 2.
45. http://www.ilo.org/dyn/declaris/DECLARATIONWEB.ABOUTDECLARATIONHOME? var_language=EN.
46. See, e.g., the Mineral Development Agreement between the Government of the Republic of Liberia and Mittal Steel Holdings, N.V., 17 August 2005.
47. As in the Host Government Agreement between the Republic of Turkey and the BTC Consortium. For details, see Human Rights on the Line (UK: Amnesty International, 2003). This is less true now, given the adoption of the BTC Human Rights Undertaking, discussed below.
48. Paul E. Comeaux and N. Stephan Kinsella, 'Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA ana OPIC Investment Insurance', 15 New York Law School Journal of International and Comparative Law (1994) 20.
49. BTC 2000 Article 7.2(xi).
50. Ibid.
51. See BTC 2000, Article 7.2(vi): '[I]f any domestic or international agreement or treaty; any legislation, promulgation, enactment, decree, accession or allowance; any other form of commitment, policy or pronouncement or permission, has the effect of impairing, conflicting or interfering with the implementation of the Project, or limiting, abridging or adversely affecting the value of the Project or any of the rights, privileges, exemptions, waivers, indemnifications or protections granted or arising under this Agreement or any other Project Agreement it shall be deemed a Change in Law under Article 7.2(xi).' This latter article then provides that any such 'change in law' that affects the economic equilibrium of the project will require Turkey to pay compensation. See also, Appendix 5, clause 3.3 (environment): 'If any regional or intergovernmental authority having jurisdiction enacts or promulgates environmental standards relating to areas where Pipeline Activities occur, the MEP Participants and the Government will confer respecting the possible impact thereof on the Project, but in no event shall the Project be subject to any such standards to the extent they are different from or more stringent than the standards and practices generally prevailing in the international Petroleum pipeline industry for comparable projects.' Clause 4.2 provides the equivalent formulation for social regulations. See discussion on this subject below.
52. BTC 2000, Article 3.1.
53. TOTCO 1998 Article 21.3.
54. Ibid, Article 3.1.
55. COTCO 1997, Article 24.2.
56. MAI Working Draft as of April 1998, Article IV.2.1.
57. The investment treaty between Argentina and Panama provides in Article 3(1) that neither party will engage in direct or indirect expropriation nor will they take measures of modification or derogation from the law which have the same effect (' . . . modificación o derogación de leyes, que tenga el mismo efecto.') For the effect of including contracts as 'investments', see below, text accompanying n. 56.
58. As e.g. the BTC contract, above n 30.
59. Methanex Corp v United States of America, Award of 3 August 2005.
60. Ibid, Part IV chapter D, para 7.
61. Ibid.
62. Howard Mann, 'The Final Decision in Methanex v United States: Some New Wine in Some New Bottles', August 2005 International Institute for Sustainable Development, http://www.iisd.org.
63. For example, Chile-UK Investment Treaty, Article 1(1)(a)(3).
64. See the authorities cited above n 23.
65. For this distinction, see R. Dworkin, 'Is Law a System of Rules?', in R. Dworkin (ed) The Philosophy of Law, (Oxford: Oxford University Press, 1977) pages 38-65.
66. Some claim that this might be sufficient to bring into play the competing principle allowing an appeal to a fundamental change in circumstances, rebus sic stantibus. See e.g. Chowdhury, above n 24, 53.
67. Revere Copper and Brass Inc. v Overseas Private Investment Corp 17 ILM at 1342-43.
68. Chad 2004, Article 17.4.
69. Chad 2004, Article 34.4.
70. BTC 2000, Article 7.2(xi).
71. So long as it is not a fresh law, which would trigger the earlier ban on applying legislative and regulatory changes.
72. An equivalent term for the investment contract.
73. Chad 2004, Article 34.2 [author's emphasis] cf. Article 4.1: 'The consortium most conform scrupulously . . . to the laws and regulations of the Republic of Chad insofar as the Convention does not indicate otherwise.'
74. Chad 2004, Article 3.1.
75. Ibid, Article 3.2(a, c).
76. Idem.
77. Ibid, Article 3.4.
78. Ibid, Article 4.3.
79. For example, the Consortium undertakes that while it has the right to use the water necessary for its carrying out of petroleum operations, this is subject to the condition that it will not prejudice the supply of water for local populations or for their livestock. Ibid, Article 3.2(b). For the obligations on the companies in charge of transporting the oil, see COTCO 1997, Article 8.1.
80. Ibid, Article 8.2. On the dust problem, see Report by the Bank Information Center 2003, p. 2.
81. 'The speed of construction work stands in marked contrast to the substantial delays of measures intended to ensure the welfare of local people and protection of the environment, some of which may never see the light of day.' Report by the World Rainforest Movement January 2003, http://www.wrm.org. uy/countries/Cameroon/Horta.html. Compare similar issues for the BTC pipeline, Baku-Ceyhan Campaign, http://www.bakuceyhan.org.uk/more_info/bp_pipeline.htm.
82. For similar concerns raised about BP's Alaskan pipeline project: 'Everything was geared to speed . . . [The company] was prepared to accept higher construction costs at any time the alternative meant delay. Every day lost meant the sacrifice of profits from 660,000 barrels of oil, which was the estimated daily flow at start up. No one attempted to peg the precise figure. It was impressive enough to say that at [US] $10 a barrel, oil companies would be giving up $6.6 million of income a day.' Quoted from http://www.bakuceyhan.org.uk/more_info/bp_pipeline.htm.
83. See above, p. 7.
84. For an analogous tension and trade-off between health rights of populations and commercial rights of enterprises, where the disputes settlement body of the WTO required a mode of implementing the health right that was least damaging to the right to trade, see the Thai Cigarettes Case (Report of the GATT Panel, GATT No. DS10/R, adopted on November 7 1990) and see critique in Leader, above n 9, 685 ff. For a decision more favourable to domestic health priorities, see Asbestos and Asbestos-Containing Products Appellate Body WT/DS135/11 (18 September 2000).
85. For example, according to the investment contract, the host state is normally not allowed arbitrarily to withdraw its authorization for the project to carry on but must give compelling reasons for doing so: reasons which are partly spelled out in the agreement. Chad 2004 Article 6.1. This provision would remain in place.
86. BTC 2000, Appendix 5, Clause 3.3. See for comparable clauses, Chad 2004, Arts 4.3, 17.4; COTCO 1997, Article 13.
87. Chad 2004, Article 17.4.
88. I am indebted to my colleague David Ong for this point.
89. On the situation in Cameroon, see Jeremy H. Keenan, 'Briefings: Chad-Cameroon Oil Pipeline: World Bank and ExxonMobil in "Last Chance Saloon" ', Review of African Political Economy Nos. 104/5: 395-477 (2005). Unloading is done via ' . . . a 30 years-old, obsolete, single hull crude oil tanker converted to stationary duty, moored some 7-12 km off Kribi. Its stated storage capacity is . . . almost eight times the capacity of the ill-fated Exxon Valdez'. The International Convention for the Prevention of Pollution from Ships (1973, amended 1978) (MARPOL) limits the operational discharge of pollutants from ships at sea and sets forth a host of safety measures including double hull requirements.
90. See http://www.imo.org/Conventions/mainframe.asp?topic_id=258&doc_id= 678#25.
91. 'The treaty standards mandate that existing constitutional balances are redrawn to accommodate the new standards of property protection to be afforded to foreign investors who are provided with most-favoured-nation and national standard treatment . . . '. Sornarajah, above n 10, 355 fn 29 and Cf. D. Schneiderman, 'Investment Rules and the New Constitutionalism', 25 Law and Social Inquiry (2000) 757.
92. Cf. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005) 229, describing what he calls the rise of the ideology of the natural law of contract. For the reasons given earlier, the present author does not agree that the contractual view is one that adopts a purely commercial perspective, excluding considerations of human rights.
93. Luke Petersen, International Human Rights in Bilateral Investment Treaties and in Investment Treaty Arbitration International Institute for Sustainable Development (IISD) April 2003.
94. See Shalakany, above n 11, 419.
95. COTCO 1997, Article 13.
96. Chad 2004, Article 3.2(b).
97. BTC 2000, Article 11.2.
98. This public law role for the arbitrator is easily lost sight of if one concentrates on those arbitral decisions that have pitted the investment contract against external considerations that the contract does not specifically include. At that point, the arbitrator has to decide whether he is to be faithful to the document he is charged with giving effect to or to cedes to the external demands of the state wishing to override that agreement. This has happened in those situations of direct expropriation via nationalization, raising issues concerning appropriate compensation. It is true that there arbitrators seem to treat these expropriations as a violation of a commercial contract and do not accept the state's political prerogatives to be relevant to its obligation to respect that agreement [Texaco v Libyan Arab Republic, para 55]. Even here, however, it is not right to see this as the adoption of a private law perspective. On the contrary, the primary reason given by arbitrators for enforcing stabilization clauses is that doing so is good for the country and its people, since otherwise investors would not be willing to risk their funds [See Revere Copper and Brass Inc. v Overseas Private Investment Corp 17 ILM at 1342-43]. The regulations and legislation with which we are concerned, which have become a central concern in many parts of the world and which falls short of expropriation, raise a question internal to the contract. The question is not whether the investment contract per se will be held to prevail over a government's public interest duties or should be set aside in favour of those duties. The questions are about the relationship between the different elements of the contract itself - those which demand respect for the commercial expectations of the investor and those which demand respect for the noncommercial entitlements of potential victims.
99. On the directions of adjustment among basic rights and other objectives, see S. L. Leader, 'Two Ways of Linking Human Rights to Economic Activity', 185 International Social Science Journal 541 (2005) and Leader, above n 16.
100. Above nn 78 and 79.
101. Paul E. Comeaux and N. Stephan Kinsella, 'Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA ana OPIC Investment Insurance', New York Law School Journal of International and Comparative Law 4 (1994).
102. For the potential 'chilling effect' on a host government's willingness to require the project to comply with the host state's international obligations, see for the BTC pipeline, Human Rights on the Line, below n 121, passim, and for the Chad/Cameroon pipeline, Contracting Out of Human Rights, above n 8, passim.
103. It is submitted that this is preferable to the more stringent proportionality test, for reasons given by the dissent of Justice Brennan in United States Trust Company of New York v State of New Jersey 431 U.S. 1 at 33 (1977).
104. Chad 2004, Article 4.2.b.
105. Chad 2004, Article 3.2(b).
106. Chad 2004, Article 4.3; Chad 1998, Article 20.2.
107. COTCO 1997, Article 17.
108. See above, sections on insulating and managerial stabilization.
109. Repairs can then be fitted into the operating schedule so as to best suit the commercial strategy. The only exception to this logic that is written into investment contracts arises when damage to people or the environment looks 'imminent and serious': then the state can intervene. BTC 2000, Article 5.2 (iii); TOTCO, 1998 Article 9.4(a).
110. J. Freynas, 'Legal Change in Africa: Evidence from Oil Related Litigation in Nigeria', 43 Journal of African Law (1999) 121-50, at 150
111. cited in K. de Feyter, 'Corporate Governance and Human Rights', in Institut International des Droits de l'Homme, World Trade and the Protection of Human Rights (Brussels: Bruylant, 2001) 98.
112. Above n 34 [SL's emphasis].
113. For the distinct issues of risks involved in systems failure, see in relation to corporations, American Law Institute Principles of Corporate Governance, Article 2.01 and commentary; In re Caremark International Inc. 698 A. 2d. 959 (1996); The European Court of Human Rights has also made it clear that a state party can be held liable for having allowed a risk to life to emerge, and that the emergence of this risk is a distinct ground of complaint from the claim that the damage actually happened. See e.g. Oneryildiz v Turkey No 48939/99 Judgement of 18 June 2002.
114. This is a possibility that is being examined in a current research project being undertaken jointly by the University of Essex Centre for Human Rights and the International Institute for Environment and Development, London.
115. Vicki Been notes that despite the availability of insurance against political risk, including some forms of expropriation, 'many investors are choosing to self-insure'. Vicki Been, 'Does an International "Regulatory Takings" Doctrine Make Sense?', 11 1 New York University Environmental Law Journal (2002) 49, at 58.
116. On the issue of speed of construction raising the risk of damage, above nn 61 and 62.
117. The investment contract's demand for compensation in these circumstances is not objectionable simply on the ground that it can have a 'chilling effect' on the willingness of the host state to implement its obligations under (ii) and (iii). If that were the only objection, then it could conceivably call for a case-by-case evaluation by arbitrators of the actual impact of compensation on the willingness of the state to implement its obligations. That is not a requirement placed on states that are home to the investors, such as the United States or states in the EU. The principles seen earlier, allowing those states to break contractual undertakings without compensation, apply whether or not it is shown as a matter of fact that the state is discouraged from doing what it is meant to do. It is instead enough in those jurisdictions that the contract demands that the state not implement a particular control when it has an obligation coming from another source to implement that control. It is enough, that is, that the contract makes a demand that contradicts the state's obligation.
118. Chad 1988, Article 21.3.
119. The Universal Declaration of Human Rights states in Article 8 that 'Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law'. This is given concrete form in various international covenants. See Shelton, above n 17.
120. See http://www.exxonmobil.com/corporate/files/corporate/Statement_Labor. pdf.
121. For details, see ILO Declaration, http://www.ilo.org/dyn/declaris/ DECLARATIONWEB.INDEX-PAGE.
122. Chad 1998, Article 23.12(b).
123. See the Digest of Decisions of the Ilo's Freedom of Association Committee, 1996, section on right to strike.
124. The ILO acknowledges a limit on the right imposed by requirements of public safety, but these have to be strictly construed. See e.g. ILO, Freedom of Association Committee, Digest of 1985, Case No. 530, para 426.
125. http://www.ilo.org/ilolex/english/convdisp1.htm.
126. The African Charter on Human and Peoples' Rights protects the right to the 'best attainable state of physical and mental health' (Article 16). The African Commission on Human and Peoples' Rights has recently considered that states' parties must, among other things, 'take concrete and targeted steps, while taking full advantage of their available resources, to ensure that the right to health is fully realized in all its aspects without discrimination of any kind': Communication 241/2000, Purohit and Moore v Gambia, Decision at 33rd Ordinary Session of the African Commission, 15-29 May 2003.
127. International Covenant on Economic, Social and Cultural Rights, Article 12(b).
128. International Covenant on Economic, Social and Cultural Rights, Article 7(b).
129. See A. Shemberg, Contracting Out of Human Rights: The Chad-Cameroon Pipeline Project (UK: Amnesty International, 2005) 39.
130. European Social Charter, 1961, Article 3.
131. Ibid, Article 19(4).
132. Ibid, Article 7(2)(3).
133. European Revised Social Charter, 1996, Article 3.
134. Revised Charter, Article 2(4) ' . . . to eliminate risks in inherently dangerous or unhealthy occupations, and where it has not yet been possible to eliminate or reduce sufficiently these risks, to provide for either a reduction of working hours or additional paid holidays for workers engaged in such occupations'. Article 3 para 1 '. . . The primary aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, particularly by minimising the causes of hazards inherent in the working environment.'
135. Revised European Social Charter Article 3(4).
136. The Turkish Host Government Agreement [hereafter HGA] specifically targets changes arising from international treaties and includes here measures covering health and safety and environmental protection. See HGA, Article 7.2 (vi) and (xi).
137. HGA, Article 5.2(iii).
138. Ibid, Article 19(b).
139. HGA Appendix 5, Code of Practice, para 4.2. See para 3.3 for equivalent restriction on environmental standards.
140. See S. Leader and A. Shemberg, Human Rights on the Line: The Baku-Tiblisi-Ceyhan Pipeline Project (UK: Amnesty International, 2003) 16-17.
141. OECD Guidelines for Multinational Enterprises, General Policies 3 and 5. www.oecd.org.
142. It is, specifically, an undertaking '. . . not seek compensation under the ". . . economic equilibrium" clause or other similar provisions of the HGA or any other Project Agreement . . . in such a manner as to preclude any action or inaction by the relevant Host Government that is reasonably required to fulfill the obligations of that Host Government under any international treaty on human rights (including the European Convention on Human Rights), [or on rights concerning] labor or health, safety or protection of the environment in force in the relevant Project State from time to time to which such Project State is then a party'. Undertaking, Section 2(d).
143. Ibid, Section 2(b).
144. Ibid, Section 2(c)(i).
145. Ibid, Section 2(c)(ii).
146. Statement by Bank official at public meeting relating to the Chad/Cameroon pipeline project. Yaoude, Cameroon, October 12 2005.
147. These are based in part on the BTC Human Rights Undertaking, and in part on the author's amendments.