Integrating Social Rights in International Investment Law: Framing the Legitimate Expectations of Public Service Providers

An investor that decides to invest in privatised social rights services – the provision of water, health, education, among others – enters into an environment which differs to other forms of investment. Two key reasons demonstrate this: i) there is a unique relationship between the investor, the state, and the general population, which differs tremendously to other forms of investments; and most importantly ii) an investor enters into an investment on services that are conditioned under international human rights law to a set of unique obligations – progressive realisation, non-retrogression, adequacy, among others – which are not found in other services such as banking or transportation. This thesis is centred on this unique and complex relationship. The thesis explores the relationship between international investment law and international human rights law, with the aim of reconciling both areas of law though a systemic integration approach. The research looks at the unique case of the privatisation of social rights services, and the consequences that international investment law has had on the ability of the host state to ensure that privatised social services can ensure the satisfaction of its human rights obligations. Under such premise, the thesis analyses the protection of legitimate expectations, as a broad and open-ended protection afforded in international investment law, which has had important consequences in the state’s ability to regulate in favour of human rights. By using legitimate expectation as an example, the thesis proves how the systemic integration of human rights and investment norms can be done. The thesis suggests a detailed method that can be used by investment tribunals to integrate both areas of law, using what the author calls an interpretativeintegration approach. The thesis ultimately proves that, within the existing scope of investment law, investment rules can be interpreted in a way that is compatible with human rights norms.