A/HRC/33/40 such as article IX of the Convention on the Prevention and Punishment of the Crime of Genocide. Other treaties have optional protocols that provide for automatic referral, such as the Optional Protocols to the Vienna Convention on Diplomatic Relations. As with article 36 of the Statute of the International Court of Justice, such consent can be withdrawn. 50. Without the consent of the relevant State or States, tribunals lack jurisdiction. Investor-State dispute settlement and the investment court system, their “umbrella” and “survival clauses”, violate the norm of jurisdiction by consent. As States can refuse the jurisdiction of the International Court of Justice, a fortiori they can decline the jurisdiction of ad hoc arbitral tribunals of three private arbitrators, especially when they encroach on the fundamental functions of the State. 51. Article 62 of the Vienna Convention on the Law of Treaties states that when the situation has significantly changed from the time when an agreement was signed (rebus sic stantibus), the agreement can be revised or terminated. Other provisions of that Convention allow revision or termination in cases of error (art. 48), fraud (art. 49), corruption (art. 50) or coercion (arts. 51-52). 52. As is clear from diplomats’ statements and academic research, when most States, particularly developing States, entered into bilateral investment treaties and free trade agreements, hardly anyone imagined that investor-State dispute settlement arbitrators would challenge the ontological functions of the State in the fields of taxation, health, labour and environmental standards, overriding national law and the judgments of domestic tribunals. Such a surrender of sovereignty would have required absolute clarity in the texts of the treaties and agreements, not vague terminology subject to capricious interpretation. The presumption in customary international law is that a State cannot surrender sovereignty by chance or inadvertence, because international ordre public cannot accept that a State waive its responsibility to act functions. If a State does, the agreement can be considered as contra bonos mores. 53. In conversations with lobbyists and trade representatives, the Independent Expert was confronted with the question of why States signed bilateral investment treaties and free trade agreements in the first place. Perhaps the best answer was given by the Danish political scientist Lauge Poulsen, who conducted worldwide research and asked many government officials that question. He notes that “both qualitative and econometric evidence strongly indicates that a bounded rationality framework is best suited to explain the popularity of BITs in the developing world … By overestimating the benefits of BITs and ignoring the risks, developing country governments often saw the treaties as merely ‘tokens of goodwill’”.39 Poulsen shows that developing countries expected that the treaties would bring more foreign investment, 40 although that belief was never backed by empirical evidence and remained mostly unfulfilled, relying to the detriment of their populations on the positive “publicity” for those treaties and on UNCTAD advice. He observes that Governments were largely unaware of the political and economic risks, treaty negotiations lasted only a few hours, and sometimes not even lawyers or the experts from the justice ministries were involved. Poulsen concludes that “the majority of developing countries … signed up to one of the most potent international legal regimes underwriting economic globalization without even realizing it at the time”.41 That assessment raises issues of good faith on the part of those selling the treaties, manifests unconscionable lack of due 39 40 41 12 www.cbs.dk/files/cbs.dk/abstract.pdf. Lauge Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (Cambridge, Cambridge University Press, 2015); www.oecd.org/trade/benefitlib/. Lauge Poulsen, Bounded Rationality and Economic Diplomacy, p. xvi. GE.16-11938