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 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 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 non- state actors to ensure that they do not have any negative impacts on the right to water