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E-raamat: Human Right to Water and International Economic Law [Taylor & Francis e-raamat]

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Human Right to Water and International Economic LawSuurem pilt
Taylor & Francis e-raamatudRohkem infot Taylor & Francis e-raamatute kohta
Raamatu kodulehekülg: https://www.taylorfrancis.com/books/9781003050407
This book discusses the international right to water and the liberalization of water services. It is concerned with the harmonization of the right to water with the legal systems under which liberalization of water services has taken or may take place. It assesses paths of harmonization between international human rights law and international economic law in this specific field.

The issue of the compatibility between the fulfilment of the right to water and the liberalization of water services has been at the heart of a passionate public debate between opponents and advocates of the privatization of the utility. The book provides an unbiased analysis of different international legal regimes under which the liberalization of water services has occurred or is likely to occur, notably international investment law, international trade law and European Union law, in order to assess whether the main features of the right to water can be guaranteed under each of these systems of law and whether there is space for prospective harmonization.

The work will be an invaluable resource for academics, researchers and policy-makers working in the areas of International Human Rights Law, International Economic Law, International Water Law, International Trade Law and EU Law.
List of Abbreviations
xi
I General introduction
1 Setting the scene
1(15)
1.1 Privatization and liberalization of water services in the wake of water commoditization
4(8)
1.2 Emergence of a human rights-based approach to water
12(3)
1.3 Possible conflicting obligations arising from the human right to water and international economic law
15(1)
2 Rationale for the book: a quest for balancing the human rights approach and the trade and investment law approach to water services liberalization
16(3)
3 Area of research: fragmentation of international law
19(1)
4 Research questions
20(1)
5 Model of analysis
21(15)
5.1 Harmonization by means of conflict prevention
22(1)
5.2 Harmonization by means of interpretation
23(5)
5.3 Establishing systemic relationships of priority
28(8)
6 Methodology
36(1)
7 Scope and outline of the book
37(4)
II The Human Right to Water under International Law
1 Introduction
41(6)
2 The legal basis of the human right to water
47(42)
2.1 Treaty legal basis
47(6)
2.1.1 The right to water as a derivative right
51(2)
2.2 The emergence of a customary human right to water
53(35)
2.2.1 State practice
60(1)
2.2.1.1 International treaties
61(2)
2.2.1.2 Regional instruments
63(3)
2.2.1.3 Statements by States and conduct within international organizations
66(2)
2.2.1.4 National constitutions and legislation
68(5)
2.2.1.5 Domestic case law
73(9)
2.2.2 States' opinio juris
82(3)
2.2.3 A right in statu nascendi or already born?
85(3)
2.3 General principles of international law
88(1)
3 The content of the human right to water
89(10)
3.1 The content of the right to water derived from Article 11 ICESCR
89(6)
3.1.1 Subsequent agreement on the interpretation of Article 11 ICESCR
93(2)
3.2 The content of the customary right to water
95(4)
4 The obligations stemming from the human right to water
99(13)
4.1 The nature and content of the obligations
99(5)
4.2 The subjects responsible for their implementation
104(2)
4.3 The territorial extension of the obligations
106(6)
5 The role of international judges and quasi-judicial compliance mechanisms in the identification and formation of the human right to water
112(8)
5.1 International human rights mechanisms
113(1)
5.2 Regional human rights tribunals and compliance mechanisms
114(6)
5.3 International investment tribunals
120(1)
6 Conclusion
120(3)
III The liberalization of water services under international investment agreements and the human right to water
1 Introduction
123(5)
2 The jurisdiction of investment tribunals to adjudicate violations of the human right to water
128(3)
3 The impact of the human right to water on the merits of investor-State arbitration
131(36)
3.1 The relevant BIT provisions likely to raise concerns from a human rights perspective
131(6)
3.1.1 Expropriation
132(2)
3.1.2 Fair and equitable treatment
134(3)
3.1.3 Full protection and security
137(1)
3.2 Cases lacking clear reference to the human right to water
137(11)
3.2.1 Expropriation
143(2)
3.2.2 Fair and equitable treatment
145(2)
3.2.3 Full protection and security
147(1)
3.3 Cases acknowledging the human right to water
148(17)
3.3.1 Expropriation
155(3)
3.3.2 Fair and equitable treatment
158(5)
3.3.3 Full protection and security
163(1)
3.3.4 The defence of necessity
164(1)
3.4 Interim conclusion
165(2)
4 The impact of the human right to water on compensation in investor-State arbitration
167(4)
4.1 Cases lacking clear reference to the human right to water
169(1)
4.2 Cases acknowledging the human right to water
169(2)
4.3 Interim conclusion
171(1)
5 Harmonizing investment protection with the human right to water
171(19)
5.1 Harmonization by means of conflict prevention
172(10)
5.1.1 Human rights impact assessment
172(2)
5.1.2 Revising domestic rules and stabilization clauses
174(2)
5.1.3 Incorporating human rights considerations in IIAs
176(4)
5.1.4 Drafting a business and human rights treaty
180(2)
5.2 Harmonization by means of interpretation of relevant BITs provisions
182(4)
5.3 Establishing systemic relationships of priority
186(4)
6 The attempts to ground corporate human rights obligations
190(4)
7 Conclusion
194(3)
IV The liberalization of trade in water services under the GATS and the human right to water
1 Introduction
197(4)
2 The applicability of the GATS to water services
201(13)
2.1 An overview of the GATS
202(6)
2.2 The lack of specific commitments in the water sector
208(6)
3 The compatibility between the GATS and the State's regulatory autonomy in the water services sector
214(15)
3.1 The general GATS provisions likely to raise concern from a human right perspective
216(8)
3.1.1 Domestic regulations
216(4)
3.1.2 Subsidies
220(2)
3.1.3 Monopolies and exclusive service suppliers
222(2)
3.2 The GATS provisions on specific commitments
224(5)
3.2.1 Market access
224(2)
3.2.2 National treatment
226(3)
4 Harmonizing trade in services with the human right to water
229(31)
4.1 Harmonization by means of conflict prevention
229(5)
4.1.1 Scheduling commitments for water services
230(4)
4.1.2 The subordination clause in favor of measures necessary to protect human life and health
234(1)
4.2 Harmonization by means of interpretation of GATS provisions applicable to water services
234(18)
4.2.1 The right to regulate in the public interest and the interpretation of the GATS provisions concerning market access and national treatment
237(1)
4.2.1.1 The interpretation of the market access clause
237(2)
4.2.1.2 The interpretation of the national treatment clause
239(3)
4.2.2 The right to regulate in the public interest and the interpretation of the GATS provisions related to public services
242(2)
4.2.2.1 The interpretation of the notion of services supplied in the exercise of governmental authority
244(3)
4.2.2.2 The interpretation of the notion of government procurement for the supply of public services
247(4)
4.2.3 Interim conclusion
251(1)
4.3 Establishing systemic relationships of priority
252(8)
5 Conclusion
260(3)
Conclusions
1 Outline of the main findings and responses to the research questions
263(3)
2 Appraisal
266(5)
Selected bibliography 271(4)
Index 275(6)
Acknowledgements 281
Roberta Greco is Adjunct Professor of International Law, University of Rome LUMSA, Italy, and Associate attorney at the International Law Firm, Saccucci & Partners, specialized in litigating cases before the European Court of Human Rights.
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