International Trade Law and Fragmentation in Water Regulation

Abstract

The future is drying out. By 2025, up to 40% of the world's population could be suffering of water scarcity, and yet, the role of law in the governance of water resources seems to be mostly spared of critical scrutiny. At the heart of the matter is our conception of water. Traditionally, water had been perceived as a domestic matter, which only exceptionally required international regulation. The key word was sovereignty - water resources were deemed to belong to states as an attribution of the sovereign, which could only be limited by the rights of other sovereigns. Such approach has changed substantially in recent years. Water is now a matter of global concern and, consequently, new legal instruments and agencies have emerged. Such regulatory machinery, which is called here 'Global Water Governance', is crucially dependant on three different legal languages, trapping thus the issue in maelstrom of legal fragmentation. Indeed, water supply is simultaneously framed as an environmental problem by environmental lawyers, as an international economic law issue by the WTO and the ICSID and as a human rights matter by the ECOSOC. Three different regimes: one single invaluable resource. Such fragmented ambivalence has created a certain sense of anxiety, fed by fears of forum shopping, overlapping jurisdictions, and inconsistent case law. The default prescription is coherence. Against such an approach, this paper argues that anxiety should be put to rest, for fragmentation of water law is a creative force, where we may be able to find the answers that traditional international water regulation failed to provide. Rather, it is concluded, emphasis should be made on the mechanisms that enhance transparency and accountability in global water governance.