During 2001 Argentina adopted emergency measures to address the most severe economic and social crisis of its history.
Inter alia, Argentina devalued its currency and froze the tariff levels of certain essential services, including water and sanitation. Amici argue that human rights law provides a rationale for these measures, and that this rationale is relevant to the interpretation and application of Bilateral Investment Treaties (BITs).
More particularly, human rights law recognizes the right to water and its close linkages with several other human rights, including the right to life, health, housing, and an adequate standard of living. Human rights law also requires that Argentina adopt measures to ensure access to water to the population, including physical and economic access. Under this light, the measures adopted by Argentina, and particularly the freezing of the tariff levels amidst an economic crisis, ensured access to water to the population, and thus fully conformed to human rights law.
The amicus curiae brief is structured in four parts. First, the brief offers a basic account of the key facts of the dispute that implicate human rights issues. Second, amici analyze the content of the human right to water and its linkages with the enjoyment of other human rights, as well as the corresponding obligations of Argentina. Third, amici analyze how human rights law is relevant for the proper adjudication of the dispute. This analysis covers issues such as applicable law, interpretation, and the application of BIT standards. Specifically, amici argue that the rationale of the measures is relevant to determining whether Argentina’s treatment was fair and equitable under the circumstances. Likewise, amici argue that the question whether governmental conduct is equivalent to an expropriation, or alternatively the legitimate exercise of regulatory powers, can also benefit from a human rights analysis. Fourth and finally, the amicus curiae brief suggests ways in which any conflict of norms can be resolved, and explores the linkages between human rights law, essential services, and the state of necessity as a circumstance precluding wrongfulness.