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ESIL-International Human Rights Law Symposium: IHRL and Investment Law – What Could A Human Rights Based Approach Look Like?

Published on February 10, 2016        Author: 

Scholars have increasingly focused (see here, here, here and here) on the relationship between international human rights law (“IHRL”) and international investment law (“IIL”). While some argue (see here, here and here) that IHRL and IIL are mutually re-enforcing, several cases highlight significant tensions between the fields.

When conflicts arise, IHRL rarely fares well. IIL provides a more powerful remedy than IHRL, often allowing for recourse to international remedies without the exhaustion of domestic ones. IIL decisions are also usually binding on the state without review or appeal, and can be enforced against a state’s assets overseas. This can incentivize states to comply with their IIL obligations at the expense of IHRL commitments. If IIL is not simply to “trump” IHRL without consideration for the merits of competing rights, a standard is needed that accommodates both fields. It appears to me that IHRL already provides the necessary tools for reconciling conflicting obligations without unduly burdening (or ignoring) either field.

The threat posed by conflicts between IHRL and IIL is perhaps best illustrated by one of the more disappointing judgments in international law, Suez, Sociedad General de Aguas de Barcelona S.A. and Vivideni S.A. v Argentina. This case arose from the economic crisis of 2001 when Argentina ordered a tariff freeze on water services. The IHRL right to water includes a core obligation that states ensure each individual can access a minimum daily allowance of water. “Accessibility” includes a financial aspect, requiring states ensure the minimum amount is affordable for all individuals, “including the most vulnerable or marginalized sections of the population” (para 12). To meet this obligation, states must not only respect the right but also protect it against corporate actions that would make water financially inaccessible. Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights