Sources of HRIA Law and Self-engagement: Turning Soft-Law into Binding Com- Com-mitments Com-mitments

Impact assessments are regulated by different types of norms. Traditional sources of public in-ternational law relevant for inin-ternational (environmental) impact assessments (see Article 38 ICJ Statute) include treaty law, customary law and general principles, as well as judicial deci-sions and scholarly writings. As a public law approach goes beyond these inter-state relations, domestic and institutional law also become relevant sources. EU constitutional law, for example, establishes human rights as general principles of EU external relations law which implies a gen-eral obligation to take extraterritorial human rights impacts into consideration. The same is true for “secondary” or “internal tertiary” law. The latter contain norms that not only recommend, but at least internally require the conduct of social and/or human rights impact assessments.

These internal norms generally bind an institution’s staff directly, and can thus have an indirect external effect.³⁷⁷

IAs are often governed by norms which have not been enacted through an official law-making process, but are generally non-binding “soft law”. The controversy about the nature and (non-)sense of “soft-law” cannot and need not be reappraised here.³⁷⁸ If and insofar as so-called soft law de-facto influences decision-making, it has a guiding function; as the guiding function is an important element of public law as understood here, the difference between “binding” and “non-binding” is insofar not of major importance. As has been observed elsewhere, non-binding norms can have a comparable or even stronger effect than formally binding norms.³⁷⁹ This

376 This reflects a school of thought in constitutional law which regards the broader public as part of the open society of constitutional interpreters: Häberle, ‘Die offene Gesellschaft der Verfassungsinterpreten:

Ein Beitrag zur pluralistischen und „prozessualen“ Verfassungsinterpretation’ (above, n. 210).

377 Dann, The Law of Development Cooperation (above, n. 4), p. 317.

378 For the probably most comprehensive overview so far see Goldmann, Internationale öffentliche Gewalt (above, n. 278); on the ability of soft law to quickly respond to new challenges: Brun-Otto Bryde, Interna-tionale Verhaltensregeln für Private (Frankfurt am Main: Metzner, 1981), p. 4.

379 On the effects of soft-law: Bryan Druzin, ‘Why does Soft Law Have any Power Anyway?’, Asian Journal of International Law (2016), pp. 1–18; Goldmann, Internationale öffentliche Gewalt (above, n. 278), 200 ff.;

Dann, The Law of Development Cooperation (above, n. 4), p. 39; Enzo Cannizzaro and Emanuele Rebasti,

‘Soft law in the EU legal order’, in: Julia Iliopoulos-Strangas and Jean-François Flauss (eds.), The Soft Law of European Organisations, pp. 209–232. However, the UN Special Rapporteur recommends that states im-plement the UN Guiding Principles on human rights impact assessments of trade and investment agree-ments and „make them legally binding in the domestic legal order“: UN Human Rights Council, Report of the Independent Expert on the promotion of a democratic and equitable international order,

Alfred-quires to also consider provisions in administrative guidelines, ministerial accords, memoranda of understanding, etc.³⁸⁰ In addition, soft law can become relevant for the interpretation of exist-ing hard law, can “prepare” the emergence of future hard law, or be a preliminary stage to cus-tomary law.³⁸¹ They serve for experimental learning, and – for good or for bad – may create a sort of path-dependency.³⁸² This means that the creation and design of soft-law essentially pre-determines the later enactment of “hard” law. Ignoring soft law would thus mean to ignore im-portant developments of public law. Finally, as will be seen, different doctrines of constitutional and administrative law also serve as a “transformer” that converts soft law – indirectly – into hard law or other-wise establishes binding obligations. For example, an internal administrative guideline or handbook may create “legitimate expectations” and thus bind future decision-making. States, the European Union or International Organizations often publicly announce to conduct HRIAs and regulate the requirements in non-binding guidelines. These propositions can arguably become, under certain circumstances, a binding and judicially reviewable commitment under to the principle of legitimate expectations or the principle of non-retrogression. Finally, soft law can have a legitimizing function. As will be discussed later, third states may raise legiti-macy concerns if, for example, the EU assesses the human rights impacts an international agreement may have on that third state.³⁸³ Soft law instruments – for example those recom-mending the conduct of transnational HRIAs – may have a legitimizing function:³⁸⁴ the assess-ment of human rights impacts in, for example, Myanmar, would arguably be no interference into Myanmar's sovereignty rights if that particular assessment complies with an adopted UN rec-ommendation, even if the latter is non-binding.

3.2.2.2.1 Legitimate Expectations in Public Law

Public authorities, including the European Commission, have increasingly drafted and published guidelines promising the conduct of HRIAs for certain initiatives. Such a promise could become externally binding under the principle of legitimate expectations. The principle of legitimate expectations is recognized in the administrative and constitutional law of different legal systems from all over the world.³⁸⁵ Especially in common law systems, the principle of legitimate expec-tation is understood as an extension of the rules of natural justice as part of fair administrative justice.³⁸⁶ This also includes rules and principles governing the conduct of impact assessment.

Mauricede Zayas, A/HRC/30/44, para 62 (j); see also: Vivian Kube, EU Human Rights, International In-vestment Law and Participation (Springer, 2019), p. 243.

380 Andrew Guzman, ‘A Compliance-based Theory of International Law’, California Law Review, 90 (2002), pp. 1823–1887, p. 1828.

381 Similar, even though in the context of the legal nature of international corporate codes of conduct:

Bryde, Internationale Verhaltensregeln für Private (above, n. 378), p. 23.

382 Similar on what he calls “network effects”: Druzin, ‘Why does Soft Law Have any Power Anyway?’

(above, n. 379).

383 See section 4.3.3.

384 In this sense, even though in a different context: Bryde, Internationale Verhaltensregeln für Private (above, n. 378), 27 et seq.

385 Søren J. Schønberg, Legitimate expectations in administrative law (Oxford: Oxford University Press, 2000); Matthew Groves, Legitimate Expectations in the Common Law World (London: Bloomsbury Publish-ing PLC, 2017).

386 Geo Quinot, ‘Substantive Legitimate Expectations in South African and European Administrative Law’, German Law Journal, 5 (2004), p. 74.

For example, the UK High Court of Justice had to decide whether the promise to consult affected individuals in the context of an environmental impact assessment raised “legitimate expecta-tions”.³⁸⁷ The High Court clarified that such an expectation is legitimate “[o]nly if the reasonable bystander would regard the promise as being made in the sense contended for by the applicants will his expectation be regarded as not merely reasonable but legitimate also.”³⁸⁸ In the specific case the court confirmed that the plaintiff legitimately expected to be consulted during the ad-ministrative procedure: “For in my judgment, once one postulates a promise of consultation in advance of a decision in which the promisee has a sufficient interest, that of itself founds a legit-imate expectation”. ³⁸⁹A doctrinal approach of administrative self-limitation in German law fo-cuses in particular on principles of equality and bona fide and the assumption that an agency will not, without justification, treat similar cases differently. Such a self-limiting effect can there-fore generally occur when an agency complies or promises to comply with unitary standards, in particular if it has enacted internal guidelines.³⁹⁰ It can then be expected that the agency will respect its own guidelines in the future: Not only because the coherent application is required in order to treat similar cases alike, but also because the protection of confidence is a central rule of law principle.³⁹¹

Under EU case law, the principle of legitimate expectation requires that, “[f]irst, precise, uncon-ditional and consistent assurances originating from authorized and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules”.³⁹² However, the requirement “to whom they are addressed” must not be interpreted narrowly: a promise can be addressed to a large number of individuals.³⁹³

The principle of legitimate expectation is also recognized in international law.³⁹⁴ The investment tribunal in Total v. Argentine Republic assumed that the concept of legitimate expectations is rather “based on the requirement of good faith, one of the general principles referred to in Arti-cle 38(1) lit. c) of the Statute of the International Court of Justice as a source of international

387 Queen's Bench Division, R v Swale Borough Council and Medway Ports Authority ex parte The Royal Soci-ety for the Protection of Birds (1990).

388 Ibid., p. 141.

389 Ibid., p. 140.

390 Jürgen Schwarze, Europäisches Verwaltungsrecht (Baden-Baden: Nomos Verl.-Ges, 2005), 2nd edition, LXXI.

391 BVerwG, Judgment of 17 April 1970, VII C 60/68, para 21 et seq. (juris); BVerwG, Judgment of 8 April 1997, 3 C 6/95, para 19 (juris).

392 CFI, Judgment of 30 June 2005, T-347/03, Branco (2005), para 102; General Court, Judgment of 19 September 2012, T-265/08, Germany v. Commission, para 142.

393 For example to (potentially) all holders of herds and milk farms: ECJ, Judgment of 28 April 1988, Case 120/86, Mulder.

394 An investor is generally “entitled to rely on specific representations or assurances made directly to them by the host State and upon which they were induced to invest” : Felipe Mutis Téllez, ‘Conditions and Criteria For The Protection of Legitimate Expectations Under International Investment Law’, ICSID Review (2012), pp. 1–11, p. 4. Furthermore, in Saluka Investments B.V. v. The Czech Republic, the tribunal held that the investor’s reasonable expectations “need not be based on an explicit assurance from the Czech Government” as long as it “could reasonably expect” that the government would act in a “consistent and even-handed manner” : Arbitral Tribunal, Saluka Investments BV v. The Czech Republic (2006), p. 329.

law”.³⁹⁵ The principle of good faith and consequently of legitimate expectations would thus, in principle, be applicable to all obligations under international law.³⁹⁶ At the same time, the limits of the principle must be borne in mind. In EDF (Services) Limited v Romania, the tribunal made clear that the principle of legitimate expectations must be interpreted in light of the conse-quences it has for the scope of discretion of public authorities. The tribunal stated that a broad application to vague promises would impose a significant burden: if legitimate expectations cre-ate obligations under the fair and equitable treatment clause, it could mean a “virtual freezing of the legal regulation of economic activities”.³⁹⁷ In consequence investors can only legitimately and reasonably rely on “specific promises or representations […] made by the State to the inves-tor”.³⁹⁸ This is an important point also with regard to the question that will be discussed later, namely to what extent the promise to conduct HRIAs for certain projects or policies can create legitimate expectations. While impact assessments are not cost-neutral and can cause significant delays, they do not result in a “virtual freezing” of public decision-making: they do not create

“substantive” but only “procedural” legitimate expectations. Consequently, it appears justified to apply the principle of legitimate expectations more broadly. Unlike in investment law, the prin-ciple of legitimate expectations, in many other constellations, does not unduly restrict the dis-cretion of states or agencies: guidelines that raise the legitimate expectation that HRIAs will be conducted are not only relatively easy to enact but also easy to amend or abolish with effect for the future. The agency can therefore generally repeal such a guideline relatively easily. There-fore, the legal effect of administrative self-limitation based on legitimate expectations or bona fidae can best be described by what Ossenbühl calls “elastic commitment” (elastische Bin-dung).³⁹⁹

3.2.2.2.2 Revocation of HRIAs: a Retrogressive Measure Affecting Economic, Social and Cultural Human Rights?

If an authority implements an impact assessment system, albeit based on non-binding guide-lines, and if the system includes the consideration of economic, social and cultural rights, the principle of non-retrogression⁴⁰⁰ may also produce a limited binding effect and may render the revocation or non-application of the HRIA guidelines illegal. Under Art. 2 (1) of the ICESCR, a duty-bearer must “undertake[s] to take steps […] to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant”. This principle of progressive realization is complemented by the principle of non-retrogression which means that, in any case, the deterioration of the level of human rights pro-tection would be an infringement. Such infringement would need to be justified.⁴⁰¹ Arguably, an HRIA regime can qualify as a procedural mechanism to fulfill human rights obligations. If an

395 ICSID Arbitral Tribunal, ICSID Case No. ARB/04/1, Total S.A. v Argentine Republic (decision on liability), para 128.

396 Article 31 (1) VCLT; ICJ, Nuclear Tests (New Zealand v. France) (above, n. 115), para 49.

397 Arbitral Tribunal, ICSID Case No. ARB/05/13, EDF (Services) Limited v. Romania (2009), para 217.

398 Ibid.

399 Quoted in: Thomas von Danwitz, Europäisches Verwaltungsrecht (Berlin, Heidelberg: Springer, 2008), p.

252.

400 UN Committee on Economic, Social and Cultural Rights, General Comment No 3 - The nature of States parties obligations (Art. 2, para 1) (1990), para 9.

401 Ibid.

thority used to conduct HRIAs in the past (even if only based on a not externally binding self-commitment) but fails to do so now, this might be regarded as a step backward and thus a viola-tion of the principle of non-retrogression. However, to what extent this is actually the case is difficult to determine, and it is not clear to what extent such a binding effect would always be desirable. First, it must be demonstrated that human rights impact assessments actually do con-tribute to the realization of human rights. Otherwise, the refusal to conduct them in the future would not be a move backward. Second, the principle of non-retrogression may produce coun-ter-productive effects as it punishes agencies that implement a high level of human rights pro-tection and can deter agencies from experimenting with different human rights instruments. As Mary Dowell-Jones put it, the principle of non-retrogression can be an “extremely crude and unsatisfactory yardstick for measuring compliance with progressive achievement of the Cove-nant”.⁴⁰² Therefore, a binding effect based on the principle of non-retrogression must be limited to cases where the failure to conduct impact assessments is evidently a retrogressive step. This requires actual proof that impact assessments contribute to the realization of economic, social and cultural rights.