Transcript Foreign investment in agricultural lands and the human right to water

Foreign Investment in Agricultural
Lands and the Human Right to
Water
Carmen G. Gonzalez
Seattle University School of Law
The Human Right to Water
• Convention on the Rights of the Child
• Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)
• ICESCR (arts 11 & 12)
• ICCPR (art 6)
General Comment No. 15 (U.N.
Committee on Economic, Social &
Cultural Rights)
• “sufficient, safe, acceptable, physically
accessible and affordable water for personal
and domestic uses”
• “access to adequate sanitation”
• “disadvantaged and marginalized farmers”
should have equitable access to water
United Nations General Assembly
Resolution
• 26 July 2010
• “Declares the right to safe and clean drinking
water and sanitation as a human right that is
essential for the full enjoyment of life and all
human rights”
National constitutions
Belgium, Colombia, Ecuador, Ethiopia, Gambia,
Guatemala, Kenya, Panama, the Philippines,
South Africa, Spain, Uganda, Uruguay,
Venezuela, Zambia
World Health Organization
• 1.7 billion people lack access to clean water
• 2.3 billion people are suffer from water-borne
diseases each year
• More than half of the world’s population lives
in countries with water scarcity
Intergovernmental Panel on Climate
Change
• “Water and its availability and quality will be
the main pressures on, and issues for societies
and the environment under climate change.”
• By 2025, two thirds of the world’s population
will likely face water scarcity
Agriculture
• By far the most water-intensive human
activity
• Consumes approximately 70 percent of all
fresh water appropriated for human use
Large-scale land investments
• Price volatility in global food markets
• Surging demand for biofuels
• Financial speculation
• Water scarcity
Targets
• Lands close to water resources, which can be
irrigated at low cost
• Lands from which agricultural commodities
can most easily be exported
• Lands in countries with weak land and water
governance
Risks to local communities
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Local livelihoods
Food security
Depletion of limited water resources
Water pollution
Soil erosion/desertification
Erosion of biodiversity
Domestic law
• Land rights
• Water rights
• Pollution control
• Worker protection
Investment contracts
• Amount of land, price, duration of transaction
• Tax treatment & other economic incentives
• Water and land tenure rights not possessed by
domestic farmers
• Right to export all agricultural production
Investment contracts
• Internationalization clauses (applicable law
and forum for resolving disputes)
• Stabilization clauses
– Freezing clauses
– Economic equilibrium clauses
Bilateral Investment Treaties (BITs)
• National treatment
• Compensation for direct and indirect
expropriation
• Fair and equitable treatment
• Right to export
• Compulsory investor-state arbitration
Model Agreement for Sustainable
Development
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Host state rights and obligations
Investor rights and obligations
Home state rights and obligations
Transparent dispute resolution regime
Investment law & human rights
• Article 55 of the UN Charter – duty to
promote universal respect for human rights
• Customary international law duty to refrain
from causing transboundary harm
Implications for host states
• Refrain from entering into agreements that
threaten human right to food/water
• Negotiate and use flexibility mechanisms in
BITs
• Regulate non-state actors to ensure that their
activities do not interfere with right to
food/water
Implications for home states
• Duty to refrain from imposing BITs that may
impede the realization of human rights
• Duty to regulate the activities of companies
domiciled in the home state to make sure that
their activities do not violate human rights
abroad
General Comment Number 15
• Calls upon states to ensure that non-state
actors are aware of and consider the
importance of the right to water in pursuing
their activities
• States have a responsibility to regulate nonstate actors to ensure that they do not have
any negative impacts on the right to water