The linkage between International Economic Law and Access to Water and Water Scarcity

This paper deals with the relationship between access to water and water
scarcity, on the one hand, and international economic law regimes, on the other. The
overarching goal of the paper is to define States’ rights in relation to water supply, and
how these rights can be protected and enforced within the international investment
and/or trade regime.

Firstly, we will study how water can be brought there where it is scarce. Two
options will be discussed. On the one hand, foreign investments can foster domestic
capacities through transfer of technology and improved management of water
resources. The question here is to analyze how privatization of water services is being
dealt with in the international investment protection system. However, if the country
lacks hydric resources, or if these have been hindered by serious environmental
problems, then another option must be found. Water must be brought to the country.
The question is, therefore, whether water can be considered a tradable good, thus
falling under the realm of the World Trade Organization (WTO) legal regime.

Secondly, we will analyze the situation in which access to water is hampered
either by the behavior of the foreign investor, or because the flow of water has been
interrupted. What can the country that suffers water shortage do? Does it enjoy any
right? And can it enforce these rights? The paper explores this issue in two directions.
It will first examine the position of the country under the international investment
regime. Recently, a number of cases in the field of privatized public utilities exposed
the need to find an equitable balance between investor’s rights and host states’ right to
regulate. It will then see whether a water importing country can bring a claim to a
WTO Panel against restrictive trade measures adopted by a water exporting country.
The objective here is to see whether articles XI and XX GATT case-law could help
bridging the gap between these competing positions.

Our first tentative conclusions are that both international economic regimes
might entail difficult choices for countries dealing with water related problems. Yet,
we are aware that the international investment regime has already a substantial impact
on such issues, and that trade in water is likely to increase in the near future. This is
why it is important to analyze how international economic law might affect States’
water policies.