Protecting fundamental human rights before international investment tribunals, with specific reference to the right to water

Abstract

The concept of human rights penetrates into all spheres of law, acting as a protective mechanism against the abuse of rights by States and other entities. Human rights are a "counterweight" to the development of the neoliberal expansionism, embodied in the regime of foreign investment protection through international investment contracts. When states enter into such contracts, they bring along the previous commitments, in particular the obligation of protecting human rights. However, this obligation is not merely the result of existing international treaties because states are also obliged to to respect the higher rank norms of international law (jus cogens norms), which include the fundamental human rights, concentrated around the right to life. In such a legal framework, there is a notable increasing conflict between the protection of foreign investors' rights in international investment disputes and the protection of fundamental human rights. The right to water, as an indirect right to life, is a special indicator of this conflict in the practice of international investment tribunals. The issue of supremacy of rights is raised, particularly concerning the question which obligations have priority under international law: the protection of foreign investments or the protection of fundamental human rights, and especially the right to water? The hitherto practice of international investment tribunals is diverse and inconsistent in this regard; as such, it does not provide a clear answer to this key question.