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Duncan French and Louis J. Kotzé
This chapter provides the context, a broad introduction and the essence of each of the chapters in the book.
Bulk Fresh Water, Irrigation Subsidies and Virtual Water
In the near future, climate change and global warming could trigger international trade in (bulk) fresh water on a far larger scale then is presently already the case. In this context, the question whether bulk fresh water is to be considered as a ‘good’ or a ‘product’, falling under the ambit of the GATT, is highly controversial. In fact, no decisive legal arguments against such an inclusion currently exist. Therefore, as a precautionary measure, legal scholars advocate formally excluding bulk fresh water from falling under the ambit of the GATT. Could such a scenario, if not utopian, effectively hinder international trade in bulk fresh water from developing, once the need is there? Excluding bulk fresh water from the ambit of the GATT is perhaps not to be considered as particularly compelling, since the WTO framework potentially offers sufficient leeway to effectively take into account non-trade concerns, such as environmental rights and the right to water. KEYWORDS: Climate change – global warming – water – trade – WTO – GATT
Environmental interdependencies place undeniable pressures and challenges on the cardinal principle of state sovereignty and in particular on the principle of national sovereignty over natural resources. This chapter explores whether and how developments in the environmental field have constrained the traditional understanding of sovereignty and possibly changed its meaning. It does so firstly by analysing how the reorganisation of emerging rules and principles around the matrix of sustainable development may allow to move away from a purely conflictual relationship between national sovereignty and resource preservation towards one based on mutual interest. The chapter next reviews the impact of new and redefined legal categories such as common property, common heritage, common concern, or shared resources. It then offers a partial mapping of the widening environmental constraints on national sovereignty flowing from classic duties to protect the rights of others, the existence of an international interest in resource protection, and more innovative and challenging constraints even absent any immediate international interest in resource conservation. Ultimately, the analysis suggests that conceptually, locating national sovereignty and resource protection within the framework of sustainable development and its clear anthropocentric focus permits tensions to be defused and allows for the reconciliation of these two delicately balanced principles.