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Abstract

African constitutions and domestic water legislation provide for the human right to clean and safe drinking water. This right is also sourced from international human rights treaties and declarations to which African states are parties or signatories. Both municipal law and public international law impose the duties of protection and fulfilment of the right to safe drinking water on states. Domestic water laws and regulations require African states to regulate and manage the utilisation of water resources including by approving the grant of rights, concessions, or contracts in respect of the exploitation of water resources. These laws also require the states to regulate the activities of third parties such as businesses to prevent the pollution of drinking water. Key aspects of the implementation and enforcement of water laws and regulations include the grant, suspension, withdrawal, and revocation of permits. The question I address in this article is how the exercise of these powers might conflict with African states’ investment treaty obligations, including fair and equitable treatment, full protection and security and expropriation. Foreign investment in Africa is largely dominated by multinational business entities (MBEs) operating in the extractive industry. Private sector investment in water provision is also growing. I argue that by concluding investment treaties and agreeing to absolute standards of investment protection, African states have effectively constrained their regulatory authority to implement and enforce water laws and regulations against MBEs. Foreign investors may use investment treaties to challenge regulatory actions that adversely impact on covered investments.

Digital Object Identifier (DOI)

10.55496/YBKG7901

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