The human right to water: defences to investment treaty violations

Abstract

At times, and for a variety of reasons, states will regulate the market in the furtherance of public-policy objectives—including to implement specific human rights obligations. Where investment agreements are in place, these kinds of measures may trigger an investor’s claim for breach by the state of its treaty obligations. Over the course of the last few decades, these hitherto distinct areas of international law protecting international investment on the one hand, and human rights on the other, have intersected with increasing regularity. Investment arbitration tribunals tasked with adjudicating a state’s conduct vis-a-vis its treaty obligations are now engaging in in-depth analyses of international human rights issues, including questions of applicability and substance. This article charts the development of the ‘right to water’ as a stand-alone human right in international legal jurisprudence and examines the future implications arising from key international policy developments. (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965) Compania de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic , ICSID Case No. ARB/97/3 Socieded General de Aguas de Barcelona S., Vivendi Universal SA v Argentine Republic , ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae IIC 229 (2005) SAUR International v Argentine Republic , ICSID Case No. ARB/04/4 PacRim v El Salvador , ICSID Case No. ARB/09/12, Decision on the Respondent’s Jurisdictional Objections, IIC 543 (2012) UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014) UN Guiding Principles on Business and Human Rights (2011)