The Impact of the Human Right to Water on Investment Disputes

The present article focuses on the possibility of resorting to systemic interpretation of rules of international investment treaties to avoid or mitigate normative conflicts involving the human right to water. In the context of investment disputes related to failed privatization and liberalization of drinking water services, the right to water has often been invoked by the respondent State in order to justify contested measures before investment arbitral tribunals. The main debate about the interpretation of investment treaties focuses on the limitations imposed on the host State when it seeks to modify the regulatory environment that existed at the time the investment was made. This article provides a focused analysis of some cases. The choice has fallen, in a chronological order, on the first award, then on the most relevant one, and finally on the most recent award concerning water services disputes, namely the Vivendi case, the Suez case, and the SAUR case. The aim has been to assess whether the increasing role accorded to the human right to water by the respondent States in their defense and by amicus curiae briefs has impacted on the tribunals’ decisions, tilting the balance in favor of the State’s regulatory powers. The article argues that even in the most recent case, in which the tribunal purported to balance the obligations arising from human rights law and investment law, some doubts may be cast on the result, especially with regard to the effective weight attached to human rights. It submits that from the point of view of systemic integration of investment law and human rights law, although efforts have been made to reach harmonization, the results achieved by arbitral tribunals are still incomplete.