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The linkages between access to water and water scarcity with international investment law and the WTO regime

Costamagna, Francesco and Sindico, Francesco (2010) The linkages between access to water and water scarcity with international investment law and the WTO regime. In: Water governance in motion. Cambridge University Press, New Delhi, pp. 269-298. ISBN 9788175966345

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Abstract

This paper aims to examine the relationship between two branches of international economic law and water-related issues. In particular, it analyses the impact of international investment law and international trade law on, respectively, State’s capacity in ensuring universal access to water services and fighting against water scarcity. The main objective of the paper is to define State’s rights in relation to water supply and how these rights can be protected and enforced within the international investment and/or WTO regime. First, the analysis focuses on certain features of the investment system that may affect the balance between State’s right to regulate for strengthening access to water and foreign investments’ protection. The dispute settlement mechanism, which allows private investors to challenge regulatory measures directly before an international arbitral tribunal, and the uncertain definition of basic substantive provisions are the elements considered in this regard. The second part of the paper examines whether and how the WTO regime may deal with water transfers. In particular, the goal is to assess the relationship between water exporting and water importing countries, which are not always balanced should a strict interpretation of WTO norms and exceptions be adopted. The paper concludes that the application of international economic rules to water-related issues requires the development of a flexible approach to strike a fair balance between the economic interests and the fundamental social needs at stake in this field.