Water, from One State to Another: The Wavering Legal Status of Water and its Export in Bulk under International Trade Law

It is well known that water is one of the most precious resources of the planet, serving a number of fundamental purposes that range from addressing basic human needs (drinking water and sanitation), to supporting economic growth (agricultural and industrial uses), to preserving the environment (along with all the attached ecosystem services). It is equally known that water is not fairly distributed among countries, so that some of them may be defined as waterscarce and others as water-abundant. Many scholars from different academic backgrounds maintain that the former may overcome this problem by purchasing water from the latter, an option the legal contours of which are still surprisingly blurred. This article aims at shedding light on this issue and, in particular, it contributes to the existing legal literature in two respects. On the one hand, and more directly, it purports to bring forward the stalemated debate on the international legal framework applicable to bulk water transfers in order to understand which rules apply and to what extent. It is thus made clear that the multifaceted nature of water creates a complex legal entanglement with international trade law that rules out any plain answer. On the other hand, the article profits from the encounter between this highly technical field of law and an all-but-conventional good such as water in order to unearth some hidden deficiencies of the trade law system relating to oft-used concepts, especially the notions of ‘resource’, ‘product’, ‘like product’ and ‘service’. This promotes a better understanding of its functioning.