A/HRC/30/44 the doctrine of severability, treaty provisions that are contra bonos mores can be severed without abandoning the entire treaty. 44. Any court ruling on the legality of a particular treaty or contract would have to look at its constitutionality. Hence the question whether, under any reasonable interpretation of a country’s Constitution, a State can waive its ontological function to legislate in the public interest. In most jurisdictions, the courts would answer in the negative. Moreover, there is an ethical minimum threshold that underlies every contract or treaty. A treaty is contra bonos mores if it prevents the universally recognized tasks of the civilized State: (a) maintenance of public order; (b) defence of the State against external attacks; (c) care of the bodily and spiritual welfare of persons under its jurisdiction at home; and (d) protections of citizens abroad.55 45. Many States have in their Constitutions and legislation provisions concerning good faith and the illegality of unjust enrichment. Moreover, it is not only the written law that stands, but the broader principles of natural justice as already recognized in Sophocles’ Antigone, affirming the unwritten laws of humanity (αγραφος νομος), and the concept of a higher moral law prohibiting unconscionably taking advantage of a weaker party, which could well be considered a form of economic neo-colonialism or neo-imperialism. Many Constitutions contain provisions concerning abuse of rights, which may find application when a transnational enterprise interferes in a government protecting employment, health, the environment and social order. 46. Investors might be tempted to invoke the principle pacta sunt servanda (“agreements must be kept”, art. 26 of the Vienna Convention on the Law of Treaties), a kind of positivism akin to the “pound of flesh” mentality described in Shakespeare’s Merchant of Venice, where the money-lender Shylock adamantly insists on specific performance of a contract stipulating the taking of a pound of flesh from the body of the borrower, the bankrupt merchant Antonio. Undoubtedly Shylock had a right to reimbursement, but demanding a pound of flesh from Antonio’s breast would have meant an attempt on his life. Shakespeare decides the competing rights in Antonio’s favour. By analogy, it can be said that a petroleum company that is polluting the waters and causing major environmental damage cannot claim that its profits are guaranteed and that a State ordinance to prevent environmental damage should be repealed. Such legalistic nonsense borders on the criminal, and is invalidated by Article 103 of the Charter of the United Nations. 47. International criminal law and the Nuremberg precedents 56 might also be relevant in examining bilateral investment treaties and free trade agreements, to the extent that transnational corporations and their lobbyists may have engaged in activities that contravene penal law. It would be appropriate to test whether the concept of “conspiracy” to commit acts that are contra bonos mores (or “joint criminal enterprise” as used by the International Criminal Tribunal for the Former Yugoslavia) can be applied to the method in which international investment agreements have been elaborated and negotiated in secrecy. Are States or some transnational corporations guilty of “conspiracy”? Actions in pursuance of such conspiracy could include deliberately giving false information; issuing false 55 56 16 law.wustl.edu/SBA/upperlevel/International%20Law/IntLaw-Mutharika2.pdf. Nazi entrepreneurs were held criminally responsible for the consequences of some of their business activities. www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-related-to-robert-hjackson/the-influence-of-the-nuremberg-trial-on-international-criminal-law/. Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, New York,1992. The principle applies also in the context of more recent human rights violations. Horacio Verbitsky, Juan Pablo Bohoslavsky (eds.), Cuentas Pendientes. Los cómplices de la dictadura, Siglo veintiuno, 2013.