Away from the Spotlight: Bilateral investment treaties, natural resources and the right to water in Afghanistan
Daria Davitti
School of Law, University of Keele
In this paper I outline the practical dimension of the relationship between international investment law and international human rights law in conflict areas through the example of
Afghanistan. More specifically, I look at the protection of the right to water in Afghanistan within the context of foreign investment in the extractive sector and I examine the
Framework and Guiding Principles for Business and Human Rights as developed by the former UN Special Representative of the Secretary-General (SRSG) for business and human rights, Professor John Ruggie, to test their applicability to the Afghan context. Afghanistan– with its escalating armed conflict; endemic corruption and cronyism; its deepening water crisis and a growing international interest in the extraction of the country’s natural resources–presents various key elements for an applied analysis of the relationship between two bodies of international law which are often portrayed as conflicting with each other.
After briefly providing the context of the study in the first part of the paper, I focus on the first pillar of the SRSG’s Framework (the state responsibility to protect human rights) and look at its operationalization in Afghanistan. In particular, I analyse existing states’ obligations under this first pillar and under international human rights law more generally; and also under existing bilateral investment treaties. This study clearly indicates the legal and political complexities of ensuring both investment and human rights in a country where the extractive sector is rapidly developing despite the on-going armed conflict. As a possible solution, I suggest a different approach to the negotiation of bilateral investment treaties, aimed at the future protection of both investment and human rights.