BITs, State Regulation and Business-Related Human Rights Violations in Water and Sanitation Services

BOHOSLAVSKY, JUAN PABLO; MARTIN, LIBER ALEXIS; JUSTO, JUAN BAUTISTA

Natural resources and sustainable development: International economic law perspectives

Elgar Publishing

Lugar: Cheltenham; Año: 2017; p. 75 - 96

The human right to water and sanitation has called primary attention since General Comment No. 15 issued in 2002 by the UN Committee on Economic, Social and Cultural Rights, interpreted articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights. Since then, much has been written on this human right, but very little on the existing linkage between it and private corporations providing public water and sanitation services, and even less on the Bilateral Investment Treaties (BITs) implications of the state´s duty to protect this specific right. This chapter will therefore study the BIT´s implications of the state´s duty to protect from business-related human rights violations in water and sanitation services, which raises questions such as: How should we interpret BITs that protect foreign companies providing water and sanitation in light of the state´s duty to protect from business-related human rights violations? How to reconcile the state´s BITs commitments with its obligations under human rights treaties in water and sanitation services? Do we need to reconcile them at all? The chapter concludes that arbitrators, when interpreting BITs, should consider the human rights fiber of the regulation under scrutiny in order to verify its international legality.