Recognized but not Protected? The Human Right to Safe Drinking Water & Protection of Foreign Investments in Water Utilities

Sara Ekblom (2018)

Sara Ekblom has written her master’s thesis in law (UiB) on the right to water in investor-State arbitration. The thesis asks how investor-State Tribunals addresses the relationship between the Argentine Governments’ international duty to realize the human right to affordable drinking water through regulation and policy, and its international duty to accord foreign investors in privatized water utilities protection against regulatory changes. The primary focus is on the gap between arbitral Tribunals recognition and enforcement of the human right to water.

The thesis undertakes a literature review identifying the constitutional, procedural and jurisdictional duties, possibilities and challenges for arbitral Tribunals to give legal impact to States obligations to the human right to water. The thesis then analyses three cases against Argentina over privatized water utilities concluded after the UN General Assembly recognized the human right to water in 2010. In these cases, transnational corporations operating water services sued Argentina for regulatory changes that denied their request for tariff hikes during the 2002 financial crisis. Argentina argued in its defense its own obligations to safeguard the fundamental human right to affordable drinking water for its citizens. Notwithstanding the significance of this argument for the finding of internationally wrongful acts under treaties enacted between States, only the latest Tribunal accorded any legal impact to Argentina’s duties and the fundamental rights of citizens to access affordable water. This thesis highlights and describes how Tribunals approach human right to water arguments and analysis the differences in the interpretation and application of protection standards to identify the underlying cause for the different results. The general inconsistencies in case law, the ad hoc and private nature of Tribunals, and the inadequate representation of affected third-parties in disputes still leaves much uncertainty as to how the tension between the States simultaneous obligations will be resolved in the future.

Read full thesis: Master_Sara_Ekblom.