Amicus Curiae Brief

The brief contends that Argentina's decision to freeze water tariffs during its 2001 economic crisis was a necessary action to ensure the human right to water, which is protected under various international treaties and the Argentine Constitution. It argues that human rights law should inform the adjudication of the dispute, specifically regarding 'fair and equitable treatment' and 'indirect expropriation' standards in BITs. The authors assert that investors cannot legitimately expect a state to disregard its human rights obligations, and that measures taken to protect public health fall under the 'police powers' of the state, thus precluding them from being classified as compensable expropriations.

• Argentina experienced a severe economic crisis between 1999 and 2002, with the economy contracting by 25 percent and unemployment rising to over 25 percent, leading to a poverty rate increase of more than 50 percent from 1998 to 2002.
• The right to water is recognized as a fundamental condition for survival and a prerequisite for other human rights, including the right to life, health, and adequate housing, and is protected under the ICESCR, the Women's Convention, and the Convention on the Rights of the Child.
• Under international law, the right to water requires that services be physically and economically accessible, meaning they must be within safe reach and affordable for all, including marginalized groups.
• Argentina has a legal obligation to protect the right to water through treaties fully incorporated into its law and Section 75(22) of its Constitution, which gives international human rights instruments 'constitutional hierarchy'.
• The brief argues that the 'fair and equitable treatment' (F&ET) standard in BITs should be interpreted through a human rights lens, asserting that investors cannot have 'legitimate expectations' that a state will disregard its human rights obligations during a crisis.
• The authors contend that Argentina's tariff freezes were a legitimate exercise of 'police powers' to prevent a public health emergency, and therefore do not constitute compensable indirect expropriation.
• The brief suggests that in a 'conflict of norms' where a state cannot simultaneously meet investment and human rights obligations, human rights law should take primacy due to its imperative character (Ius Cogens) and the fundamental responsibility of governments to protect human rights.
• The brief argues that a 'state of necessity' may preclude wrongfulness when essential services are threatened, but notes that this does not apply to human rights treaties that provide guarantees during national emergencies.

APA

Orellana, M. (2007). Amicus Curiae Brief. Center for International Environmental Law. https://www.ciel.org/wp-content/uploads/2015/03/SUEZ_Amicus_English_4Apr07.pdf

Chicago

Orellana, Marcos. Amicus Curiae Brief. Center for International Environmental Law, 2007. https://www.ciel.org/wp-content/uploads/2015/03/SUEZ_Amicus_English_4Apr07.pdf.

Wikipedia

{{cite report |last1=Orellana |first1=Marcos |title=Amicus Curiae Brief |publisher=Center for International Environmental Law |date=4 April 2007 |url=https://www.ciel.org/wp-content/uploads/2015/03/SUEZ_Amicus_English_4Apr07.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{orellana2007amicus, author = {Orellana, Marcos}, title = {{Amicus Curiae Brief}}, institution = {Center for International Environmental Law}, year = {2007}, month = apr, url = {https://www.ciel.org/wp-content/uploads/2015/03/SUEZ_Amicus_English_4Apr07.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }