Right to Water and the WTO

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Right to Water and the WTO

• EIJI HATANO
• Joint Research Session of WTI and YNU
• Thursday, 1 February 2007

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Right to Water in the WTO

• 1. Present situation
• 2. Legal nature of right to water
• 3. Cases relating to right to water
• 4. Water in the WTO
• 5. Right to water and the WTO
• 6. Securing right to water in the WTO
• 7. Concluding analysis

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1. Present situation

• IMF and World Bank have supported private sector
  participation programs in water sector.
• Some EC companies have strong interest in
  investing in water services in other countries.
• GATS can be a basement for the investment
  through Mode 3.

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2-1, General Comment No. 15
2. Legal nature of right to water

• UNCESC General Comment No. 15 (2002) The right
  to water
• ?The right to water contains both freedoms and
  entitlements.

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2-2, Positive and Negative Right

• Negative rights aspect of right to water
• Rights that merely require the government to
  recognize their existence and refrain from
  interfering with them.
• Positive rights aspect of right to water
• Positive rights mean the rights that require
  government action to be fulfilled.

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2-3, Right to Water Positive Right ?

• States parties obligations for protecting the
  right to water
• (a) Obligations to respect
• (b) Obligations to protect, and
• (c) Obligations to fulfill

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2-4, Obligation to fulfill

• The obligation to fulfill is most problematic
• -It requires the state to take measures
  necessary to ensure for each person an
  opportunity to obtain satisfaction of a
  particular right.
• -It includes states to take measure positively.

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3. Cases relating to right to water

• Compania de Aguas del Aconquija S.A. and Vivendi
  Universal v. Argentine Republic
• -Bolivian government cancelled the contract of
  privatization.
• - the corporation imposed a 35 percent rate hike
  on local water users

• Residents of Bon Vista Mansions v. Southern
  Metropolitan Local Council (South Africa)
• -Local Council had unlawfully aborted their
  municipal water supply for lack of payment.
• -The court held that the citizens
  constitutional right to water was infringed upon.

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4. Water in the WTO

• Classification of water service
• -CPC
• -W/120
• -Other materials (OECD/Eurostat, UNCTAD)
• Negotiation
• -EC proposal

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5. Right to water and the WTO

• Debate among Petersmann and Alston
• -Debate over Economical Right
• Positive right in the WTO
• -Debate over Social right
• -Does it already exist in WTO law? AoA Article.
  20 right to food ?
• Right to Water.

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6. Protecting right to water in the WTO

• Bottom Up Approach
• -Market access norm
• -National treatment norm
• Top-Down Approach
• -General exception norm
• -Public service norm

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7. Concluding analysis

• Protection of positive right and its effects on
  (potential) service providers.
• Balancing the regulation and the liberalization
  in WTO (GATS).
• Conclusion.

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7-1. Protection of positive right and its effects
on (potential) service providers.

• water delivery services take the forms of direct
  investment
• -Mode 3 of the GATS (commercial presence)
• -State regulation ? expropriation of investment
• -Problem in regard to compensation
• -Bilateral or Regional agreement is better?

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7-2. Balancing the regulation and the
liberalization in WTO (GATS).

• In some states, water delivery service is well
  privatized.
• ?Domestic law to regulate water services.
• Ex France

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7-3. Conclusion. GATS is a starting point ?

• GATS has no norms of compensation like
  investment agreements have.
• Standard for protecting right to water is more
  understandable in the WTO.
• Service providing states can get a chance to
  negotiate and to provide their service more
  universally.
• Service accepting states can have a chance to use
  the national regulatory autonomy in WTO context.
  

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THANK YOU