Human Rights in Investor-State Arbitration: The Human Right to Water and Beyond

Meshel, Tamar

doi:10.1093/jnlids/idv007

Cited by 13 publications

(5 citation statements)

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“…80 By paraphrasing Professor Didier Truchet, the public interest in water would identify 'missions created, defined, organized, and controlled by public authorities in order to provide a service of general interest (SGI) to all those who need it'; 81 the general interest underlying the services would require that these services would be provided effectively, in line with a traditional public service obligation. This idea is clearly suggested by the proponents of the global public goods theory, who emphasize the structural need for invasive common public regulation of water management and conservation; by moving from the international case law regarding water as a 'good of public interest', 82 the proponents of this theory have underlined the 'inextricable' link between the right to water and the regulation of water services, which would imply a series of public service obligations for national authorities and water companies (public, private or mixed). 83 This would suggest that the water management should be framed within a 'community of property regime', as the following discussion will illustrate.…”

Section: The Common Public Interests: the Public Service Obligationmentioning

confidence: 99%

Water as a European shared public good: The legal status of a vital resource, and its sui generis community property regime

Di Marco

2023

Maastricht Journal of European and Comparative Law

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Water is generally indicated as a public good that is essential for life. Within the Union water law, this emphatic qualification appears as a generic political declaration linked to the uncertain recognition of the right to water. By analysing the common private and public interests, this study argues that the restricted territorial sovereignty's theory, widely accepted for transboundary water resources, should be applied to all water resources. Water would be a shared European public good, subject to a sui generis community of property regime limiting the sovereignty of Member States over their water resources. By investigating the coherence of this community of property regime with the principle of neutrality enshrined in Article 345 TFEU, the essay suggests that the regulation of the water services would be drawn into the scope of the Treaties because of their instrumental nature in guaranteeing the exercise of fundamental rights, the social cohesion of the Union and the protection of a common public good. The idea is put forward that water services would be an emblematic case of European public services, understood as a specific development of the concept of service of general economic interest, instrumental to the implementation of the European model of society.

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Section: The Common Public Interests: the Public Service Obligationmentioning

confidence: 99%

Water as a European shared public good: The legal status of a vital resource, and its sui generis community property regime

Di Marco

2023

Maastricht Journal of European and Comparative Law

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“…At one point, the claims against Argentina for its handling of the 2001 financial crisis amounted to around US $80 billion (Lavopa 2015, p. 2) while financially strapped Venezuela has been ordered to pay US $8 billion in a single case (ICSI 2019). Scholars recognise that the cost and jurisprudence incohérente of IIL can render states unwilling or unable to adopt necessary regulation that harms investors' interests (e.g., Sim 2018; Davitti 2019; Van Ho 2016;Wandahl Mouyal 2018;Meshel 2015;Choudhury 2009). Tribunals have never considered how these types of awards impact the state's ability to meet its IHRL obligations, particularly their obligation to use the maximum of their available resources to fulfil economic, social, and cultural rights.…”

Section: The Impact Of Iil On Ihrlmentioning

confidence: 99%

The Routledge Handbook on Extraterritorial Human Rights Obligations

Mark¹,

Erdem²,

Krajewski³

et al. 2021

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The Routledge Handbook on Extraterritorial Human Rights Obligations brings international scholarship on transnational human rights obligations into a comprehensive and wide-ranging volume.Each chapter combines a thorough analysis of a particular issue area and provides a forwardlooking perspective of how extraterritorial human rights obligations (ETOs) might come to be more fully recognized, outlining shortcomings but also best state practices. It builds insights gained from state practice to identify gaps in the literature and points to future avenues of inquiry. The Handbook is organized into seven thematic parts: conceptualization and theoretical foundations; enforcement; migration and refugee protection; financial assistance and sanctions; finance, investment and trade; peace and security; and environment. Chapters summarize the cutting edge of current knowledge on key topics as leading experts critically reflect on ETOs, and, where appropriate, engage with the Maastricht Principles to critically evaluate their value 10 years after their adoption.The Routledge Handbook on Extraterritorial Human Rights Obligations is an authoritative and essential reference text for scholars and students of human rights and human rights law, and more broadly, of international law and international relations as well as to those working in international economic law, development studies, peace and conflict studies, environmental law and migration.

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“…Investment protection thus not only provides a framework to challenge the policy space of governments in their efforts to realise rights to health but also creates absolute standards for the protection of investors that states are required to comply with in their efforts to ensure rights to health. While there are no specific arbitration cases relating to health, several investment arbitration cases have dealt with rights to water (Jacob, 2010;Meshel, 2015).…”

Section: Investment Protection and Rightsmentioning

confidence: 99%

Rights, regulation and redistribution: The global politics of investment protection

Koivusalo

2019

Global Social Policy

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The analysis of the implications of trade and investment agreements usually follows either economic policy modelling or the analysis of specific arbitration cases. These two approaches are often less helpful from the perspective of more systemic impacts or other policy aims as the potential concerns tend to be accounted for on the basis of a single issue (e.g. tobacco) or case or are carved out from particular agreements. The 3R framework on rights, regulation and redistribution provides a broader framework to analyse trade and investment agreements in relation to other policy aims, such as health or social policies and protection. I apply here the 3R framework to examine how and on what basis investment liberalisation and protection, as negotiated by the European Union, could affect both global and national policy space for health and social policies.

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Human Rights in Investor-State Arbitration: The Human Right to Water and Beyond

Cited by 13 publications

References 0 publications

Water as a European shared public good: The legal status of a vital resource, and its sui generis community property regime

Water as a European shared public good: The legal status of a vital resource, and its sui generis community property regime

The Routledge Handbook on Extraterritorial Human Rights Obligations

Rights, regulation and redistribution: The global politics of investment protection

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