Human Rights in Investor-State Arbitration: The Human Right to Water and Beyond

Abstract

This article analyzes the restrictive approach adopted by investor-State arbitration tribunals to human rights arguments raised by host States, as exemplified in the case of the human right to water, and examines the potential implications of this approach for the international human rights regime and the legitimacy of investment arbitration. The article argues that as governments continue to fail to address human rights issues in investment treaties, and in light of the considerable influence that investor-State arbitration can exert on domestic policy-making, arbitral tribunals are uniquely placed to strengthen and promote important human rights that may be negatively impacted by investment protection measures. Doing so would also reinforce their own legitimacy as ultimate arbiters of investor-State disputes involving issues of public interest. The article suggests procedural and interpretive tools that States and arbitral tribunals could employ in order to have human rights arguments adequately considered in investment arbitration.