The human right to water and foreign investment: friends or foes?

Abstract

States have a duty to respect, protect and fulfil the human right to water. Water-related foreign investment, governed by international investment agreements (IIAs) that do not yet incorporate human rights provisions, can have both positive and negative impacts on human rights. It is argued here that the right to water could be used as an argument to justify measures taken against water-related investments in disputes between host states and foreign investors. While arbitral tribunals have not yet accepted this argument, it might be accepted in the near future as IIAs incorporate human rights provisions.

Keywords:

• human rights
• foreign investment
• international investment agreements (IIAs)
• investment disputes

Acknowledgements

The author would like to thank sincerely Professor Patricia Wouters, an expert on international water law appointed under China’s Thousand Talent Program and my dear counterpart at Xiamen University School of Law, for her inspiring and continuing encouragement and careful editing of this paper. Gratitude is given also to Dr Owen McIntyre and the anonymous peer reviewers for their constructive and valuable comments made on an earlier draft of this article. Thanks also to Flavia Rocha Loures (PhD candidate, Xiamen School of Law) for her kind assistance in research and language editing of one section of this paper.

Notes

1. IIAs include bilateral investment treaties, trilateral investment agreements, the investment chapter in free trade agreements (i.e. the North-American Free Trade Agreement) and others (i.e. the Energy Charter Treaty).