The role of amicus curiae in implementing the human right to water in the context of international investment law

• Author: Huiping Chen
• DOI: http://doi.org/10.1111/reel.12364
• Published date: 01 November 2020
• Date: 01 November 2020

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  wileyonlinelibrary.com/journal/reel RECIEL. 2020;29:454–463.

1 |  INTRO DUCTION

Reflecting t he fact that wate r is essential for h uman survi val, the

human right to water h as emerged in inte rnational disco urse. Firs t

formally recog nized in 2002 thr ough the United N ations (UN)

Committee on Eco nomic, Social and C ultural Rights (CE SCR) General

Comment No. 15 on ‘T he Right to Water’,1 the right was fur ther con-

firmed through the 2010 UN General Assembly (UNGA) Resolution

64/2922 and t he 2013 Human Rights Co uncil Resolution 24. 3 Several

countries have als o incorporate d it into their national constitut ions

or legislation. T he right encomp asses water availa bility (quanti ty),

quality and accessibility.4 With indiv iduals as right hol ders, States

possess oblig ations to respect , protect and fulfil t heir right to water.5

While these ob ligations have many di fferent aspe cts, one way fo r

States to fulfil t heir obligations is to operate an d finance water ser-

vices and infras tructure. This has oft en been done through the pro -

vision of public goo ds and utilitie s, as it has been jud ged that the

public secto r is in the best pos ition to provide su ch services .6

Unfortunatel y, many publi c utilities in developing countr ies provide

inadequate wate r services due to financial con straints an d the lack

of advanced technology and capacity. Inspired by neoliberalism,7 in-

ternational fi nancial institutions like the Wor ld Bank have accepted

privatizatio n as a means to promote a ccess to clean drinking water

and have imposed pr ivatization o bligations on many d eveloping

countries as a cond ition for water sector loans .8 This policy encour-

aged many developi ng States, such as A rgentina, Bol ivia, Chile and

others, to ope n their water and sanitation s ectors to foreign invest-

ment and privat ization in the 1990s.9

 1Committee o n Economic, Soc ial and Cultura l Rights ‘The R ight to Water: Gen eral

Comment No. 15’ U N Doc E/C.12/200 2/11 (20 January 20 03).

 2UNGA ‘The Hu man Right to Water an d Sanitation’ U N Doc A/RES/64/292 (2 8 July

2010).

 3UNGA ‘The Hu man Right to Safe D rinking Water an d Sanitation’ U N Doc A/

HRC/24/L.31 (23 Se ptember 2013).

 4SMA Salman an d S McInerney-L ankford, ‘T he Human Right to Wa ter: Legal and Po licy

Dimensions ’ (World Bank 20 04) 53–56.

 5ibid 65–69.

 6I Fauconnier, ‘The Privatization of Residential Water Supply and Sanitation Services:

Social Equit y Issues in the C alifornia and I nternational C ontexts’ (1999) 13 Be rkeley

Planning Jou rnal 37, 37.

 7J Budds and G McGr anahan, ‘Are the D ebates on Water Pr ivatization M issing the Point?

Experien ces from Afric a, Asia and Lat in America’ (20 03) 15 Environm ent and

Urbanizat ion 87, 96.

 8ibid 91.

 9ibid; M Solane s and A Jouravlev, ‘ Revisiting Pri vatization, Fo reign Investm ent,

Internatio nal Arbitrat ion, and Water’ (U nited Nations 2 007) 17.

Received: 27 June 2 020 

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 Accep ted: 3 September 202 0

DOI: 10 .1111/reel .12364

SPECIAL ISSUE ARTICLE

The role of amicus curiae in implementing the human right to

water in the context of international investment law

Huiping Chen

Correspondence

Email: daichen@xmu.edu.cn

Funding Information

National Soc ial Science Fund of Chin a:

18AZD018

Abstract

Foreign investment in th e privatization of water s ervices can he lp to promote the re-

alization of the human ri ght to water. However, there are inst ances where this has not

been the case, re sulting in disputes bet ween host States a nd foreign investors t hat

are brought to internatio nal arbitration . Given that these ca ses are at the interse c-

tion of investment and hu man rights, amici curiae have applied fo r standing and made

submissions. This ar ticle explores t he procedural an d substantive role s of amicus cu-

riae in implementing th e right to water in the context of international invest ment law.

The procedural rol e includes their cont ribution to the es tablishment of amicus cu riae

mechanisms which, in t urn, becomes a vehi cle for further a micus curiae participation.

Substantively, amicus curiae could furthe r develop the argume nt of the right to water

through their submissions, which could influence arbitral proceedings. Ultimately, both

roles assist in the imp lementation of the human right to water.

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