The State Of Emergency

958 Words Aug 11th, 2015 4 Pages
It would be important for the government to underline that it had not contributed to the state of emergency. In the case of a contract that gives unrestricted access to water, or a permit that allows the extraction of water to such a level that amounts to a water grab, it could be argued by the claimant that the government contributed to the emergency. Indeed, the case of Gabcikovo-Nagymaros Project demonstrates the difficulty of proving that the state did not contribute to the emergency, when the government authorised the concession contract and knew the particular activity was occurring. The State’s case will be strengthened if it can demonstrate unexpected consequence, either because of unknown information or because the claimant is not abiding by the contractual provisions. In the case of drought, the contributing factors are external and largely weather related.
It is possible that a successful and timely response by the State will have the perverse consequence of averting the peril and thus undermine the success of the necessity defence. If the measures are successful in stemming the water grab, the State’s ability to bring a necessity claim may be adversely affected as the crisis may appear less threatening than in reality.
4.2 International Human Rights Law
Additional to the defence of state regulatory powers, it can be argued that human rights are in the applicable law of a consideration of an FET clause or expropriation clause. Indeed, if human rights arguments…
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