152 / 610
150
water.
47
It further claimed that the measures it adopted were legitimate and were aimed
at protecting the population and its rights.
48
In
Azurix v Argentina
,
49
Argentina invoked human rights treaties that protect
consumers’ rights. The state claimed that these were in conflict with BIT obligations
and that they had to prevail.
50
Unfortunately, this claim is not specified in the award.
51
Lastly, there are two cases where human rights arguments could have or would
have been used. The cases ended prematurely, and consequently is it impossible
to say whether states would pursue this line of defence, and if so, how they would
have structured their arguments. The case of
Aguas del Tunari v Bolivia
52
could have
concerned human right to water; however, the parties eventually settled this case.
53
In
Piero Forresti v South Africa
,
54
a group of NGOs had petitioned for participation
in the proceedings
55
as they had claimed the case had raised a number of human rights
issues.
56
The claimant eventually sought to discontinue the proceedings and the case
was ultimately dismissed without examination of merits.
57
All of the above stated cases contain the same pattern: the state took certain steps,
which according to the investor represented a breach of investment rights. The states
then claimed that it was necessary to adopt these measures in order to secure human
rights of some sort. Only in one of the cases,
Biwater v Tanzania
, was the state partially
successful (see section IV.A and V.C); in the rest, the arguments failed. The rationale
behind these outcomes is examined in section V.C. Their significance is apparent; if
the factual situation had backed the arguments of the states and if the states had not
been successful, it would have negative consequences for the states’ ability to ensure
the compliance with human rights obligations. If this problem is real, it needs to be
addressed by the international community.
47
ibid [328].
48
ibid.
49
Azurix Corp v the Argentine Republic
(Award of 14 July 2006) ICSID Case No ARB/01/12.
50
ibid [254].
51
cf ibid [261].
52
Aguas del Tunari SA v Republic of Bolivia
(Decision on Jurisdiction of 21 October 2005) ICSID case No
ARB/02/3.
53
cf Marella (n 39) 355.
54
Piero Foresti, Laura de Carli & Others v the Republic of South Africa
(Award of 4 August 2010) ICSID
Case No ARB(AF)/07/01.
55
Piero Foresti, Laura de Carli & Others v the Republic of South Africa
(Petition for Limited Participation
as non-Disputing Parties in term of Articles 41(3), 27, 39, and 35 of the Additional Facility of 17 July
2009) ICSID Case No ARB(AF)/07/01.
56
ibid [4.1].
57
Piero Foresti, Laura de Carli & Others v the Republic of South Africa
(Award of 4 August 2010) ICSID
Case No ARB(AF)/07/01 [79], [IV].