Milletlerarası Yatırım Hukukunda Yatırımcının Sorumluluğu: İşçi Haklarına Saygı Gösterme Yükümlülüğü Örneği

Investor’s Responsibility in International Investment Law: The Example of Obligation to Respect Labour Rights

Deniz ERGENE

Yabancı yatırımcının ev sahibi devlet ülkesinde sorumlu davranmasının temin edilmesi, milletlerarası yatırım hukukunda özellikle son yirmi yılda giderek daha fazla önem arz eden bir mesele hâline geldi. Bu çalışmada milletlerarası yatırım hukukunda yabancı yatırımcının hukukî sorumluluğu meselesini, özellikle sosyal sorumluluğundan ayırt ederek inceledik ve yatırımcının milletlerarası yatırım hukukunda hukukî sorumluluğunun bulunması gerektiği görüşünü savunduk. Hukukta sorumluluk bir yükümlülüğün ihlâlinden kaynaklandığı için, yatırımcının hukukî sorumluluğu meselesini incelerken, yatırımcının yükümlülüklerine odaklandık. Geleneksel yatırım anlaşmalarında yatırımcılara yükümlülük öngörülmez. Ancak yeni tarihli bazı yatırım anlaşmalarında yatırımcı yükümlülükleri öngörüldüğünü tespit ettik. Bu yükümlülüklerden özellikle işçi haklarına saygı gösterme yükümlülüklerini tarihi gelişimi çerçevesinde inceledik.

Milletlerarası Yatırım Hukuku, Yatırımcı Yükümlülüğü, Yatırımcının Sorumluluğu, Kurumsal Sosyal Sorumluluk, İşçi Hakları, Hukuka Uygun Yatırım, Hukuka Aykırı Yatırım.

The purpose of this article is to examine the question of how foreign investors could be held responsible for their wrongful acts in host countries. This article puts an emphasis on the legal responsibility of investors in contradistinction to their corporate social responsibility. It argues that investors should have legal responsibility, hence legal obligations in international investment law. It focuses on the investors’ obligation to respect labour rights. as foreseen in some new generation international investment agreements. It analyses these new provisions by putting it into a historical perspective and it assesses their potential impact on international investment law.

International Investment Law, Investor’s Obligation, Investor’s Responsibility, Corporate Social Responsibility, Labour Rights, Legal Investment, Illegal Investment.

Extended Abstract

In this article we examine the investor’s responsibility in international investment law. What makes this issue interesting is that international investment law is traditionally a branch of law that only regulates the rights of investors and refrains from regulating their responsibilities. For the orthodox international investment law scholar or practitioner, foreign investors only bear social responsibility but no legal responsibility in international investment law. We argue in this article that not only host states but also foreign investors should have legal responsibility in international investment law, particularly for their wrongful acts towards their -or their affiliates’ or even their third party providers’- employees.
Legal responsibility requires non-compliance with legal obligations; hence legal responsibility requires the pre-existence of a legal obligation within the legal system of prospective responsibility. Therefore an analysis of investors’ responsibility in international investment law should first and foremost focus on legal obligations of investors in international investment law. In this article we focus on the legal obligation of investors to respect labour rights.
Investors’ obligations to respect labour rights is not dealt with in the original design of international investment law. For it is assumed that investors’ obligations are already foreseen and effectively enforced by national laws of host states. The sixty years practice of international investment law unfortunately proved this assumption to be wrong. Indeed entrusting host state laws with the enforcement of legal responsibility of investors towards their employees did not result in effective compensation for the employees who were negatively affected by investment activities. The more the injuries incurred by the employees were left uncompensated, the more the social pressure went up in the international investment circles for the inclusion of investors’ obligations in investment agreements, particularly for investors’ obligations to respect labour rights.
In fact most of the international investment agreements in force today do not foresee investors’ obligations to respect labour rights or any type of investor obligation for that matter. Investment agreements typically include obligations for states and for states only. However this asymmetrical feature of international investment agreements does not reflect the underlying bargain struck -from the 60’s to the mid-90’s- by developed and developing states for the establishment of international investment law. In fact international investment law as a legal system is built upon a quid pro quo; international legal protection for foreign investors in exchange for the contribution of the investors to the sustainable economic development of the host state. Yet the “investors’ contribution to the sustainable economic development of the host state” part of the bargain did not find its place in the binding provisions of investment agreements until early 2000’s. This asymmetry is the root cause of the investors’ irresponsibility in international investment law. The lack of investors’ obligations in international investment law resulted in the legal “irresponsibility” of investors in this legal regime. And the legal irresponsibility in its turn resulted in the lowering or the non-improvement of labour standards in the host states; a result which clearly goes against “the contribution to the sustainable economic development of the host state” part of the bargain.
Academic and politico-bureaucratic efforts are made in order to render the international investment law symmetrical. These efforts may be categorized in two camps; one proposing voluntary guidelines to investors which may lead to their social responsibility but not to their legal responsibility, the other one imposing binding legal obligations to investors, which can lead to their legal responsibility in international investment law. The former is mostly advocated by developed states and the latter mostly by developing states. A general overview of these efforts show that there are significantly more voluntary guidelines in non binding international instruments than binding investors’ obligations in investment agreements.
Very few investment agreements foresee investors’ obligations to respect labour rights. Some of these investment agreements provide that investors shall comply with all labour provisions of the host states national law; some more specifically provide that investors will give priority to the nationals of the home state when providing employment and some others provide that investors will only be authorized if they expressly undertake the obligation to respect the labour laws of the host state. In addition to these labour rights specific provisions, some investment agreements provide that investors are under a general obligation to comply with the host states law as a whole, not only at the establishment stage but also after the establishment.
An overview of existing investment agreements show that there is a trend for the inclusion of investors’ obligations into investment agreements. The more such binding provisions appear in investment agreements, the more investors may be held internationally responsible for their breach of labour standards and the better the symmetry is rendered in international investment law.

“Yatırımcılar bir ülkeye girerken,

orada faaliyetlerinden -iyi ya da kötü-

etkilenecek bir toplum ya da

cemaat yokmuş gibi davranamazlar.”¹