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Trade in Water Under International Law

Bulk Fresh Water, Irrigation Subsidies and Virtual Water

Fitzgerald Temmerman

It is clear that more sustainable and efficient use of fresh water resources will become crucial in future global water management to avoid major threats to biological life. Trade in Water Under International Law offers a careful and well-reasoned introduction and analysis of this emerging and largely unchartered subject of international trade law, which has hitherto been of key importance in domestic law and policy, exploring the potential and limits of addressing the use of water resources in the context of World Trade Organization law.
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Chapter 1: Bulk fresh water resources and the GATT

Bulk Fresh Water, Irrigation Subsidies and Virtual Water

Fitzgerald Temmerman

In the absence of any formal exclusion from the scope of the GATT, one could make the basic argument that, a contrario, water is to be considered a tradable good subject to the GATT.108 Moreover, water is mentioned under several tariff headings of the ‘Harmonised Commodity Description and Coding System’109 (Harmonised System or HS).110 The HS is a harmonised classification system for customs purposes. WTO Members base their schedules of commitments almost exclusively on this system.111 The HS can therefore be useful in interpreting the GATT.112The fact that water is mentioned under a tariff heading of the HS does not, however, necessarily mean that water is to be considered as subject to the GATT.113 For the GATT to be formally applicable to water, water is required to have the status of a ‘good’ or ‘product’.114 Interestingly, in the US – Lumber case the Appellate Body of the WTO ruled that ‘standing, unfelled trees’ – thus trees in their natural state – are to be considered as a good subject to the GATT.115 The Appellate Body came to this conclusion by investigating the definition of a good as expressed in article 1.1(a)(1)(iii) of the WTO Agreement on Subsidies and Countervailing Measures (ASCM),116 including the meaning of a good in the French (‘biens’) and the Spanish (‘bienes’) version of the ASCM.117 The Appellate Body, however, also emphasised the fact that the term ‘goods’ as expressed in article 1.1(a)(1)(iii) ASCM and the term ‘products’ as expressed in article II GATT are used in a different context and therefore do not necessarily have the same meaning.118 In the case of water, it is mostly argued that there should be some form of human intervention, for example, bottling,119 pumping, purification, or even the mere removal of bulk fresh water out if its natural bed, in order to convert fresh water in its natural state into a tradable good or product.120 Lorenzmeier uses the criterion of ‘controllability’ over water.121 One could, however, also make a distinction between the fact that bulk fresh water is merely dammed or flooded (‘controlled’ but not a good), and the fact that bulk fresh water is redirected by pipeline to a certain destination from where it can be further processed (already a good).122 However, the fact that a certain fresh water resource, such as a well, an aquifer, a lake, or a certain other bulk amount of fresh water is put up for sale, could lead to the conclusion that any such particular fresh water resource is already considered to be a tradable good or product.123 Moreover, this assumption is in line with the rulings of the Appellate Body in the above-mentioned US – Lumber CDVs Final case, where the investigation of the definition of a good, resulted in the acceptance of a rather broad interpretation, including ‘property or possessions’.124 It is generally argued, however, that water in its natural state – due to its uniqueness and crucial importance for life itself – substantially differs from other natural resources, such as standing trees, and should therefore also receive a different treatment under the GATT.125 Nevertheless, in the absence of any formal exclusion from the scope of the GATT, ambiguity remains.126

Concerning bulk fresh water removed from its natural state, there is little doubt that it is to be considered as a tradable good subject to the GATT.127 In this sense, Urueña even argues that international economic law has become the ‘default language’ of (fragmented) ‘Global Water Governance’ (GWG).128 Human rights and international environmental law are thereby merely to be considered as ‘two competing legal regimes’ against international economic law.129 However, one must thereby take into account that human rights and international environmental law must react to certain facts created by international trade flows, and are forced to ‘run behind’ these facts, rather in the sense of a policeman chasing after a (presumed) criminal. From Urueña’s viewpoint, however, and considering the uniqueness of the resource ‘water’ in combination with the ambiguity in which the WTO currently still deals with environmental and human rights issues, the paramount question is no longer whether bulk fresh water is a tradable good and subject to the GATT, but rather whether bulk fresh water resources should be (temporarily) excluded from the GATT as a precautionary measure.130 The answer to this question particularly depends on the future sensibility of WTO dispute settlement bodies to environmental and human rights concerns, more specifically to the sustainable use of fresh water resources and the promotion of the human right to water. Also, conflicts between WTO trade law and international, regional and bi-national water treaties and agreements are to be expected.131 It is thus also important to see how WTO dispute settlement would take into account such water treaties and agreements. Finally, one should also question what exactly would be the benefit for sustainable (global) water governance if bulk fresh water would be formally excluded from the scope of the GATT.

I    THE PRECAUTIONARY APPROACH

Contrary to Urueña,132 Brown Weiss argues that even if water is removed in bulk and lifted out of its natural state, this should not directly lead to the resigned assumption that bulk fresh water is a tradable good subject to GATT rules.133 At least one additional step should be taken by transforming the water into traditional products already subject to GATT, such as bottled water.134 Given the uniqueness of fresh water as a resource essential to all life, Brown Weiss, however, argues to completely exclude bulk fresh water removals from the scope of the GATT, as a matter of ‘anticipatory caution’.135 According to Brown Weiss ‘anticipatory caution’ as applied to fresh water resources implicates: ‘that in the face of uncertainty about the future, a country should be able to exercise its sovereign authority to maintain its fresh water resources without having to convince the trade community of the legitimacy of its actions’.136 The reason for such an ‘anticipatory caution’ approach, which is to be considered as an emanation of the precautionary principle,137inter alia lies in the fact that certain nations and regions particularly hit by global warming would additionally have to face a loss of sovereignty over their fresh water resources making it difficult – if not impossible – to disengage from international water transfers.138 Trade considerations could prevail over the sustainable management of local fresh water resources and/or delay urgent and necessary decisions.139 Also De Haan warns of over-exploitation of certain fresh water resources if bulk fresh water should be considered as being a tradable good subject to the GATT.140 Gowlland Gualtieri equally sees the uniqueness of water, a resource essential to all life, as ‘a strong argument for excluding water from the scope of the GATT’,141 and warns of irreversible over-exploitation causing severe environmental damage such as ‘disruption of ecosystems, damage to natural habitats, harm to biodiversity, and disruption to aquifers and underground water systems’.142 National states should therefore remain in possession of full sovereignty over bulk fresh water resources.143 Fisher finally summarises the highly polemic nature of the debate that GATT rules on the one hand: ‘recognize the status of water as a commodity; level the playing field for trade in water resources’, and ‘protect against disguised barriers to trade’; but on the other hand: ‘constrain a state’s ability to protect ecological systems; make long-term management of water resources more difficult; give trade considerations a significant role in reconciling conflicting uses of water’, and ‘give trade dispute settlement mechanisms authority to resolve water claims’.144

Brown Weiss furthermore argues that privately negotiated rights and obligations and principles taken from public international law should apply to bulk fresh water transfers, rather than international trade law.145 On the international level, the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (UN Watercourses Convention) offers a comprehensive set of rules applicable to international watercourses.146 The main provisions of the UN Watercourses Convention are: article 5, which proclaims the principle of ‘equitable and reasonable utilization and participation’ (through which the ‘optimal and sustainable utilization’ of international watercourses should be secured);147 article 6 lists the ‘[f]actors relevant to equitable and reasonable utilization’;148 and article 7 proclaims the ‘[o]bligation not to cause significant harm’ (the principle of ‘no harm’) to the other Parties of the Convention.149 The UN Watercourses Convention only entered into force recently, namely 17 August 2014.150 As of then, parties to the UN Watercourses Convention are legally bound to take into account the provisions of the Convention in concluding new agreements and interpreting already existing agreements.151 However, the conflict-resolving influence of the provisions of the UN Watercourses Convention was already cutting-edge before its entrance into force.152 In fact, the UN Watercourses Convention was designed as a framework convention providing for universal principles applicable to basically any regional or bi-national watercourse conflict.153 Several important European water-basin agreements, such as the Convention on the Protection of the Rhine (1999),154 the 1994 Danube River Protection Convention (1994),155 and the Agreements on the Protection of the Rivers Scheldt and Meuse (1994),156 were based upon the main provisions of the UN Watercourses Convention.157 The influence of the framework provisions of UN Watercourses Convention is also clearly visible in the latest attempts to reach an agreement over the waters of the river Nile.158 The United Nations also adopted a Resolution specifically concerning the ‘Law of Transboundary Aquifers’.159 The United Nations Resolution on transboundary aquifers is, however, far less influential than is the case for the UN Watercourses Convention. Although many aquifers are shared bi-nationally (and regionally) only a few agreements exist in the field.160 The most comprehensive set of rules can presently be found in the recently concluded agreement concerning the ‘sound management and protection of the shared Al-Sag/Al Disi aquifer’.161

Before the existence of the UN Watercourses Convention, the most comprehensive sets of rules concerning the management of shared fresh water resources were drafted by the International Law Association (ILA). The 1966 Helsinki Rules on the Uses of the Water of International Rivers162 includes provisions on both the navigational and non-navigational uses of international rivers, as well as provisions concerning both the settlement and prevention of conflicts.163 The paramount principles of ‘equitable utilisation’ and ‘no harm’ emerged out of the provisions of the Helsinki Rules.164 Besides their influence on the conclusion of agreements, such as the Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC),165 the Helsinki rules also provided guidance in dispute settlement over shared water resources, such as the conflict between India, Pakistan and Bangladesh over the river Ganges.166 After having published a consolidation of the Helsinki Rules, the ‘Campione Consolidation of the ILA Rules on International Water Resources (2000)’, the ILA issued a revised version of the Helsinki rules in 2004: the ‘Berlin Rules on Water Resources’.167 The ILA’s ‘Berlin Rules’ are not only more comprehensive then the Helsinki rules but are in fact also more comprehensive then the UN Watercourses Convention. For example, the Berlin Rules include rules applicable nationally.168 Also, the principle of reasonable utilisation of shared water resources is more firmly attached to the principle not to cause significant harm, which is considered to be a major difference from both the Helsinki Rules and the UN Watercourse Convention. However, both cited examples of changes with regard to the predecessor Helsinki Rules and the UN Watercourses Convention are criticised internally in the ILA Water Resources Committee (WRC).169

On the regional level, more specifically concerning the European continent, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (United Nations Economic Commission to Europe (UNECE) Water Convention) entered into force in 1996.170 A Protocol on Water and Health to the UNECE Water Convention was signed in 1999.171 Interestingly, amendments to the UNECE Water Convention entered into force recently,172 allowing non-UNECE countries to also become Member States, thus ‘turning the convention into a global legal water framework for transboundary water cooperation’.173 The seventh session of the meeting of the Parties to the UNECE Convention, which was held from 17 to 19 November 2015, was attended by 74 countries outside the UNECE region.174 The main provisions of the UNECE Water Convention focus on the prevention, reduction, monitoring and control of pollution of transboundary waters, as well as on research and development.

Neither the UN Watercourses Convention, nor the UNECE Water Convention or the ILA’s Helsinki and Berlin Rules directly deal with (international) trade in bulk fresh water. Such trade normally occurs between the state (or a regional entity of the state) and the private sector and does not often involve transboundary shared waters. In this context it is, however, highly regrettable that the relationship between the WTO multilateral trade agreements and multilateral environmental agreements (MEAs),175 such as inter alia the UN Watercourses Convention and the UNECE Water Convention together with its Protocol on Water and Health, is still complicated and unsolved. Also the relationship between other (non-MEA) international environmental agreements such as the 1971 Ramsar Convention176 equally remains complicated and unsolved. It is broadly accepted that article 3.2 of the Dispute Settlement Understanding (DSU) allows for the application of articles 31 to 33 of the Vienna Convention on the Law of Treaties177 in the interpretation of multilateral (environmental) treaties when they are deemed to be relevant.178 WTO dispute settlement, however, has not answered the question whether, in the WTO context, the legal provisions of such multilateral treaties contain binding provisions or whether they should be considered as merely informative.179 The question was also supposed to be addressed during the WTO Doha Round negotiations.180 However, since no formal consensus was reached, the discussion still continues until the present day.181

In the 1996 US – Gasoline case the Appellate Body stated that the GATT ‘is not to be read in clinical isolation from public international law’,182 which was interpreted in doctrine as a possible opening for taking into account non-trade concerns in WTO law.183 Two years later, in the 1998 US – Shrimp case the Appellate Body sought guidance inter alia in the United Nations Convention on the Law of the Sea (UNCLOS),184 the Convention on Biological Diversity (CBD)185 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),186 in order to determine whether ‘living natural resources’ (in casu sea turtles) as opposed to ‘non-living natural resources’ could be found to be ‘exhaustible natural resources’.187 According to Panizzon, Arnold and Cottier, the rulings of the appellate body in the US – Shrimp case could principally dismiss any law or regulation, taken at the national level in accordance with a MEA by a WTO Member who is also a Party to that MEA, from the article XX GATT’s ‘chapeau’ test.188 The paramount question whether only the parties in WTO dispute settlement cases should be members of the international treaty invoked, or whether all WTO Members should be a member to the international treaty invoked, in order to determine whether an international treaty would be applicable in a WTO dispute, was, however, left unanswered by the Appellate Body.189 In the 2006 EC – Biotech case it was the defendant party, the European Communities, who invoked the precautionary principle as expressed in the Cartagena Protocol,190 in order to justify temporarily import prohibitions for biogenetically modified products.191 There, the Panel decided that, since the European Communities are a member party to the Cartagena Protocol but the defendant, the United States, is not, the Cartagena Protocol could merely ‘inform’ the WTO, but could not be applicable as such.192

The ruling in the EC – Biotech case is criticised in doctrine.193 The question remains how to deal with MEAs which are not ratified by all WTO Members in dispute settlement.194Inter alia, Pauwelyn advocates that, independently from the question of membership to an international treaty invoked in dispute settlement, all international treaties with erga omnes rights and obligations should be enforceable at the WTO level.195 The majority of WTO Members, however, among them also many developing countries, remain satisfied with the current situation.196 The problem is similar with regard to the applicability of provisions out of international human right treaties,197 including the recently emancipated human right to water.198Inter alia, the United States, Canada, China and Russia currently are not a party to the UN Watercourses Convention.199 Russia is a party to the UNECE Water Convention but not the United States, Canada or China.200 The United States still has not ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), where the human right to food, encompassing the human right to water,201 is expressed in article XI.202

II    THE GATT SCENARIO

If bulk fresh water would indeed be a tradable good subject to the GATT – at least in cases where it is not left in its natural state it can arguably be concluded that it is203 – then all main GATT provisions would be directly applicable. Applying article I GATT on Most-Favoured-Nation (MFN) treatment to bulk fresh water would have as a consequence that any ‘favour’ concerning imports or exports of bulk fresh water which is granted to any bulk fresh water exporting or importing WTO Member would also have to be granted to any other bulk fresh water exporting or importing WTO Member.204 Applying article III GATT on ‘National Treatment’ (NT) to bulk fresh water would have as a consequence that domestic and foreign bulk fresh water trading companies would have to be taxed and regulated alike, without any discrimination.205 Crucial, however, would be article XI GATT on the ‘General Elimination of Quantitative Restrictions’,206 since it clearly prohibits any quantitative restrictions on the export of goods, and thus on bulk fresh water if this would be considered a good subject to the GATT.207 Article XI GATT concerning quantitative exports restrictions should thereby be read jointly with article XIII GATT concerning ‘Non-discriminatory Administration of Quantitative Restrictions’, of which the first paragraph, inter alia, states that any quantitative export restriction on a product destined to another WTO Member should automatically apply to all like products.208

In defence, firstly, WTO Members concerned could invoke paragraph 2(a) of article XI GATT.209 In invoking this provision, WTO Members could aim temporarily210 to stop exports of bulk fresh water resources211 from their territory.212 However, this could only be done under an emergency situation, in case a country would be suffering from ‘critical shortages’.213 Cossy therefore considers the article XI(2)(a) exception to be rather limited.214 Additionally, however, while article XI GATT prohibits quantitative restrictions on export it explicitly allows for export duties.215 If export duties are high enough the effects can be similar to a quantitative export restriction.216 Export duties on bulk fresh water could thus be an effective mechanism in regulating potential over-exploitation. Moreover, the Marrakesh Agreement establishing the WTO also officially promotes the concept of ‘sustainable development’217 in its preamble.218 According to Qin, export duties can be used as a ‘policy tool’ in addressing a country’s environmental concerns in relation to its economic development.219 The possibility to impose export duties in the context of the protection of the environment can thereby be seen as an emanation of the principle of ‘permanent sovereignty over natural resources’.220

The principle of permanent sovereignty over natural resources emerged in the framework of the United Nations221 in the context of progressing de-colonisation,222 and is also expressed as a human right in article 1.2 of the International Covenant on Civil and Political Rights (ICCPR) and article 1.2 ICESCR.223 The principle also plays a role in the conservation of biodiversity.224 The principle of permanent sovereignty over natural resources, however, also serves the function of concreting inequalities, since natural resources, such as fresh water, are unequally divided among nations.225 As such it can also hinder the realisation of fundamental human rights such as the right to food and the right to water.226 In the China – Raw Materials case, the Panel rebutted the Chinese assumption that the article XX(g) exception relating to the conservation of exhaustible resources should be interpreted as quasi-automatically accepting permanent sovereignty over natural resources.227 The principle of permanent sovereignty over natural resources can indeed be limited through the operation of international regional and bi-national agreements that nations conclude.228 Schrijver eloquently summarises that:

The challenge of the next two or three decades will be how to balance permanent sovereignty over natural resources with other basic principles and emerging norms of international law – including the duty to observe international agreements, grant fair treatment to foreign investors, pursue sustainable development at national and international levels and to respect human and peoples’ rights – and in this way to serve best the interests of present and future generations.229

In the recent China – Rare Earths case,230 Chinese export duties on its rare earths231 (and its Tungsten and Molybdenum resources), were challenged in a similar case as the China – Raw Materials case cited above.232 The Panel specified that China disposes over full sovereignty over its decision as to how much of its rare earths are allowed to be extracted on its territory, but once rare earths are extracted WTO rules become fully applicable.233

In defence, secondly, the article XX GATT exceptions, more specifically the paragraphs (b) and (g) exceptions, could also be invoked.234 Article XX(b) GATT relates to the necessity of protecting ‘human, animal, or plant life or health’, and article XX(g) GATT relates to the ‘conservation of exhaustible resources’. Both exceptions require a two-step investigation.235 Firstly, it is to be assessed whether the requirements of the respective exception invoked are met. Secondly, an assessment under the chapeau of article XX is required, which generally constitutes the most difficult part.236 Under the article XX(b) exception, the trade-restrictive measure relating to the protection of ‘human, animal or plant life or health’ is subject to a ‘necessary test’, which is applied on a case-by-case basis.237 The more the protective measure at issue is vital to common interests, the bigger the chances are to pass this first hurdle of article XX(b).238 The article XX(b) exception is normally invoked with regard to import restrictions.239 Boisson de Chazournes, however, sees no reason why article XX(b) should not be applicable to import and export restrictions alike, including export restrictions on bulk fresh water.240 Gowlland Gualtieri explicitly argues that export restrictions on bulk fresh water in order to protect ecosystems or to alleviate water shortages for private consumption and for agriculture could potentially be justified under this provision.241

Under the article XX(g) exception, it has first to be assessed whether water is an ‘exhaustible natural resource’. In the US – Gasoline case it was already concluded that ‘clean air’ falls under this category.242 But inter alia oil, natural gas, tuna, dolphins, salmon, and sea turtles also have already been found to be an exhaustible natural resource in the sense of article XX(g) GATT. In the Shrimp – Turtle case, the Appellate body stated that: ‘[f]rom the perspective embodied in the preamble of the WTO Agreement, we note that the generic term “natural resources” in Article XX(g) is not “static” in its content or reference but is rather “by definition, evolutionary”’.243 Although the amount of water on the planet remains constant in a closed hydrological cycle, it could be argued that fresh water is finite at certain localities such as an aquifer, a lake (e.g. the Aral Sea,244 even the North American Great Lakes245 ), or a river if there is more water withdrawn than there is influx.246 It thus seems not to be impossible, and as a matter of fact is even quite likely, that bulk fresh water could also be recognized as an exhaustible natural resource under the GATT, depending on whether the specific locality suffers from drought and/or depletion of fresh water resources.247 Secondly, under the article XX(g) exception, it has to be assessed whether the WTO Member concerned also applies ‘even-handed’ measures with regard to the conservation of the bulk fresh water resources under its own jurisdiction.248A priori, the requirements of both exception (b) and (g) of article XX GATT seem not to be insurmountable to fulfil in the case of bulk fresh water.249 Whether the second hurdle of article XX – the chapeau assessment – would also be passed is, however, less likely. The defence offered by article XX(b) and (g) GATT, in combination with the ‘good faith’ prescription of article XX’s chapeau, still is not easy to master, as can be concluded from the GATT and WTO dispute settlement case law so far.250 Girouard, however, concludes that a unilateral export restriction on bulk fresh water could also pass the article XX chapeau test under certain conditions, inter alia: ‘if [the export restriction] applies solely to domestic water resources’; ‘if the exporter first makes “serious, good faith” efforts to negotiate a solution with its trade partners before applying the measure’ (but without necessarily having to reach an agreement);251 or ‘if it is consistent with the terms of a multilateral environmental agreement’.252

108 See Katsumi Matsuoka, Tradable Water in GATT/WTO Law, Paper presented at the AWRA/IWLRI-University of Dundee International Specialty Conference, August 6–8 2001, at 2–3, available at http://www.awra.org/ (last accessed on 31 August 2016). Esther J. De Haan, ‘Balancing Free Trade in Water and the Protection of Water Resources in GATT’ in Edward H.P. Brans et al. (eds.), The Scarcity of Water: Emerging Legal and Policy Responses (London: Kluwer Law International, 1997), 245–59. See also Melanie Berger (2013), supra footnote 17, at 6.

109 Harmonised Commodity Description and Coding System (HS) of the World Customs Organization (WCO), at http://www.wcoomd.org/en/topics/nomenclature/instrument-and-tools/hs_nomenclature_2012/hs_nomenclature_table_2012.aspx (last accessed on 31 August 2016).

110 Tariff Heading 22.01 of the HS includes: ‘Waters, including natural or artificial mineral and aerated waters, not containing added sugar or other sweetening matter nor flavoured; ice and snow’; Tariff Heading 22.02 of the HS includes: ‘Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 20.09’; Tariff heading 25.01 of the HS includes: ‘sea water’; see Harmonized System Codes (HS Code), available at http://www.foreign-trade.com/reference/hscode.htm (last accessed on 31 August 2016).

111 See Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization – Text, Cases and Materials, 3rd edition (Cambridge/New York: Cambridge University Press, 2013), at 453.

112 See Thomas Cottier and Matthias Oesch, International Trade Regulation, Law and Policy in the WTO, the European Union and Switzerland (Bern/London: Staempfli Publishers/Cameron May, 2005), at 603; WTO, Report of the Appellate Body, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, 5 June 1998, at paragraph 89.

113 See Melanie Berger (2013), supra footnote 17, at 5–7; Mireille Cossy, ‘Le Statut de l’Eau en Droit International Économique – Principaux Aspects au Regard des Règles de l’Organisation Mondiale du Commerce’ in Laurence Boisson de Chazournes and Salman M.A. Salman (eds.), Les Ressources en Eau et le Droit International/Water Resources and International Law (Leiden/Boston: Académie de Droit International de La Hague, Martinus Nijhoff Publishers, 2005), 169–207, at 174–5.

114 See, inter alia, Laurence Boisson de Chazournes, Fresh Water in International Law (Oxford: Oxford University Press, 2013), at 85; Alix Gowlland Gualtieri (2010), supra footnote 107, at 62. See also Melanie Berger (2013), supra footnote 17; Robert J. Girouard, ‘Water Export Restrictions: A Case Study of WTO Dispute Settlement Strategies and Outcomes’, 2003 Georgetown International Environmental Law Review 15(2): 247–89.

115 See WTO, Report of the Appellate Body, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, 19 January 2004 (hereafter referred to as US – Lumber CVDs Final (AB)), at paragraph 67.

116 Article 1.1(a)(1)(iii) ASCM reads as follows: ‘For the purpose of this Agreement, a subsidy shall be deemed to exist if: (iii) a government provides goods or services other than general infrastructure, or purchased goods’.

117 See US – Lumber CVDs Final (AB), at paragraph 59.

118 See US – Lumber CVDs Final (AB), at paragraph 62.

119 There is no reasonable doubt about the fact that bottled water in well-defined standard quantities is a tradable good covered by GATT and NAFTA; see inter alia Alix Gowlland Gualtieri (2010), supra footnote 107, at 63. Also beverages containing water are a tradable good covered by GATT and NAFTA; see ibid.

120 See e.g., Laurence Boisson de Chazournes (2013), supra footnote 114, at 85; Melanie Berger (2013), supra footnote 17, at 20–8; Esther J. De Haan (1997), supra footnote 108, at 248–9.

121 See Stefan Lorenzmeier, Wasser als Ware, Augsburger Rechtsstudien Band 50 (Baden-Baden: Nomos, 2008), at 53–6; Melanie Berger (2013), supra footnote 17, at 24.

122 See Edith Brown Weiss, ‘Water Transfers and International Trade Law’ in Edith Brown Weiss, Laurence Boisson de Chazournes and Nathalie Bernasconi-Osterwalder (eds.), Fresh Water and International Economic Law (Oxford: Oxford University Press, 2005), 61–89, at 68; Scott Philip Little (1996), supra footnote 102, at 141.

123 See Laurence Boisson de Chazournes (2013), supra footnote 114, at 85; Esther J. De Haan (1997), supra footnote 108, at 248–9.

124 See US – Lumber CVDs Final (AB), at paragraph 59.

125 See, inter alia, Melanie Berger (2013), supra footnote 17, at 16.

126 See Edith Brown Weiss (2005), supra footnote 122, at 68–9.

127 See Melanie Berger (2013), supra footnote 17, at 28; Edith Brown Weiss (2005), supra footnote 122, at 67.

128 See René Urueña, ‘International Trade Law and Fragmentation in Water Regulation’, 2009 US-China Law Review 6(1): 50–66.

129 See ibid, at 61. See also Patrick Messerlin, ‘Climate, Trade and Water, a ‘Grand Coalition’?’ 2011 The World Economy 34(11): 1883–910.

130 See Edith Brown Weiss (2005), supra footnote 122, at 67.

131 See ibid, at 64–5. Beneath the national and local water laws and regulations, more than 2,000 international water-agreements already exist; see Edith Brown Weiss, ‘The Coming Water Crisis: A Common Concern of Humankind’, 2012 Transnational Environmental Law 1(1): 153–68, at 153–154. See also Edith Brown Weiss, ‘The Evolution of International Water Law’, 2007 Recueil des Cours 331: 163–404.

132 See above, at 31.

133 See Edith Brown Weiss (2005), supra footnote 122, at 62.

134 See ibid.

135 See ibid, at 83–9. Such exclusion could be done in the form of an amendment to the GATT, a waiver, an interpretation or an ‘Ordinary Decision related to fresh water’, of which the matter may be ideal; see ibid, at 86–8.

136 See ibid, at 83.

137 In the context of international law, the ‘precautionary principle’, also called the ‘precautionary approach’, was first expressed during the 1992 United Nations’ Rio Declaration on Environment and Development; see United Nations, General Assembly, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (last accessed on 31 August 2016).

138 See Edith Brown Weiss (2005), supra footnote 122, at 81–4.

139 See ibid, at 81–2.

140 See Esther J. De Haan (1997), supra footnote 108, at 252.

141 See Alix Gowlland Gualtieri (2010), supra footnote 107, at 64.

142 See ibid, at 62, footnote 13.

143 See ibid, at 64.

144 See Douglas Fisher, The Law and Governance of Water Resources – The Challenge of Sustainability (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2010), at 226.

145 See Edith Brown Weiss (2005), supra footnote 122, at 62.

146 United Nations, Convention on the Law of the Non-Navigational Uses of International Watercourses, A/51/869, adopted 21 May 1997 (hereafter referred to as UN Watercourses Convention). See also Centre for Water Law, Policy and Science (under the auspices of UNESCO), UN Watercourses Convention, Online Users Guide, available at http://www.unwatercoursesconvention.org/faqs/ (last accessed on 31 August 2016). See also Flavia R. Loures and Alistair Rieu-Clarke (eds.), The UN Watercourses Convention in Force: Strengthening International Law for Transboundary Water Management (London: Earthscan/James and James, 2013); Stephen C. McCaffrey, United Nations Audiovisual Library of International Law, Convention on the Law of the Non-Navigational Usesof International Watercourses, available at http://legal.un.org/avl/ha/clnuiw/clnuiw.html (last accessed on 31 August 2016); Salman M.A. Salman, ‘The United Nations Watercourses Convention Ten Years Later: Why has its Entry into Force Proven difficult?’, 2007 Water International, 32(1): 1–15.

147 See article 5 of the UN Watercourses Convention. In the Gabčikovo-Nagymaros Project case, the International Court of Justice (ICJ) referred to the UN Watercourses Convention while invoking the ‘[r]ight to an equitable and reasonable share of the natural resources of the Danube’ in favour of Hungary; see ICJ, Case concerning Gabčikovo-Nagymaros Project (Hungary/Slovakia), 25 September 1997. Most likely, the principle of equitable and reasonable use was referred to as an established principle of customary international law, since the UN Watercourse Convention was (and still has not) entered into force yet; see Stephen C. McCaffrey, ‘The Codification of Universal Norms: A Means to Promote Cooperation and Equity?’ in Laurence Boisson de Chazournes, Christina Leb and Mara Tignino (eds.), International Law and Freshwater: The Multiple Challenges (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2013), 125–39, at 137.

148 See article 6 of the UN Watercourses Convention.

149 See article 7 of the UN Watercourses Convention.

150 See UN, United Nations Treaty Collection, Status as at … , Chapter XXVII Environment, 12. Convention on the Law of the Non-Navigational Uses of International Watercourses, New York, 21 May 1997, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-12&chapter=27&lang=_en (last accessed on 31 August 2016).

151 See Laurence Boisson de Chazournes (2013), supra footnote 114, at 27.

152 See Laurence Boisson de Chazournes and Maura Tignino, ‘L’entrée en vigeur de la convention des Nations Unies sur le droit relatif aux utilisations des cours d’eau internationaux à des fins autres que la navigation’, Pôle Eau Genève, University de Genéve, Note politique No. 2, February 2015, available at https://www.genevawaterhub.org/resource/policy-brief-ndeg2-entry-force-convention-law-non-navigational-uses-international (last accessed on 31 August 2016).

153 See ibid, at 2. See also Laurence Boisson de Chazournes (2013), supra footnote 114, at 26–33.

154 The Convention on the Protection of the Rhine involves the five riparian states of the Rhine (France, Germany, Luxembourg, the Netherlands and Switzerland) plus the European Union; see European Union, External Action Services, Treaties Office Database, Convention on the Protection of the Rhine, Bern, 12 April 1999, available at http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=634 (last accessed on 31 August 2016).

155 See International Commission for the Protection of the Danube River, Convention on Cooperation for the Protection and Sustainable use of the Danube River (Danube River Protection Convention), Sofya, 29 June 1994, availableat https://www.icpdr.org/main/icpdr/danube-river-protection-convention (last accessed on 31 August 2016). The Danube River Protection Convention involves all (11) riparian states of the Danube (Austria, Bulgaria, Croatia, the Czech Republic, Germany, Hungary, Moldova, Romania, Slovakia, Slovenia and Ukraine) plus the European Union; see International Commission for the Protection of the Danube River, Danube River Protection Convention, available at https://www.icpdr.org/main/icpdr/danube-river-protection-convention (last accessed on 31 August 2016).

156 The ‘Agreement on the Protection of the River Scheldt’ (1994) and the ‘Agreement on the Protection of the River Meuse’ (1994) involve France, the Netherlands, and three of the regional governments of Belgium (the governments of Brussels, Flanders and Wallonnia). See also Frank Maes, ‘The Content of the Agreement of the Rivers Scheldt and Meuse’, Revue Belge du Droit International 1997/2, 661–81.

157 See Laurence Boisson de Chazournes and Maura Tignino (2015), supra footnote 152, at 5–6.

158 See MENA and Ahram online, ‘Full text of “Declaration of Principles” signed by Egypt, Soudan and Ethiopia’, 23 March 2015, available at http://english.ahram.org.eg/News/125941.aspx (last accessed on 31 August 2016).

159 United Nations, General Assembly, The Law of Transboundary Aquifers, Resolution A/RES/63/124, adopted 11 December 2008. See also Salman M.A. Salman, Groundwater: Legal and Policy Perspectives, World Bank Technical Paper No. 456 (Washington DC: World Bank, 1999).

160 See Gabriel E. Eckstein, ‘Managing Buried Treasure across Frontiers: the International Law of Transboundary Aquifers’, September 2011, Water International, 36(5): 573–83.

161 See Gabriel E. Eckstein, International Water Law Project Blog, The Newest Transboundary Aquifer Agreement: Jordan and Saudi Arabia Cooperate Over the Al-Sag/ Al-Disi Aquifer, available at http://www.internationalwaterlaw.org/blog/2015/08/31/the-newest-transboundary-aquifer-agreement-jordan-and-saudi-arabia-cooperate-over-the-al-sag-al-disi-aquifer/ (last accessed on 31 August 2016). See also Hana Namrouqa, ‘Jordan, Saudi Arabia Sign Deal to Protect Shared Aquifer’, The Jordan Times, 2 May 2015, available at http://www.jordantimes.com/news/local/jordan-saudi-arabia-sign-deal-protect-shared-aquifer (last accessed on 31 August 2016).

162 In 1966 the International Law Association issued ‘The Helsinki Rules on the Uses of the Waters of International Rivers’, a non-binding codification of international water law; see ILA, Report of the Fifty-Second Conference – The Helsinki Rules on the Uses of the Waters of International Rivers, (Helsinki: ILA, 1966), at 484, available at http://www.unece.org/fileadmin/DAM/env/water/meetings/legal_board/2010/annexes_groundwater_paper/Annex_II_Helsinki_Rules_ILA.pdf (last accessed on 31 August 2016).

163 See Salman M.A. Salman, ‘The Helsinki Rules, The UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law’, December 2007, Water Resources Development, 23(4): 625–40, at 629.

164 See ibid, at 630.

165Revised Protocol on Shared Watercourse Systems in the Southern African Development Community, Windhoek, 7 August 2000, available at http://www.sadc.int/files/3413/6698/6218/Revised_Protocol_on_Shared_Watercourses_-_2000_-_English.pdf (last accessed on 31 August 2016); Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC) Region, Johannesburg, 28 August 1995, available at http://www.africanwater.org/SADCprotocol.PDF (last accessed on 31 August 2016).

166 See Salman M.A. Salman (December 2007), supra footnote 163, at 630. For a summary of the conflict over the River Ganges; see Oregon State University, College of Earth, Ocean and Atmospheric Sciences, Institute for Water and Watersheds, Program in Water Conflict Management and Transformation, Case Study of Transboundary Dispute Resolution: the Ganges River Controversy, available at http://www.transboundarywaters.orst.edu/research/case_studies/Ganges_New.htm (last accessed on 31 August 2016).

167 See ILA, Resolution No. 2/2004 – Water Resources, The 71st Conference of the International Law Association, held in Berlin, Germany, 16–21 August 2004, available at http://www.ila-hq.org/en/committees/index.cfm/cid/32 (last accessed on 31 August 2016).

168 See Salman M.A. Salman (December 2007), supra footnote 163, at635 ff.

169 See International Water Law Project, Addressing the Future of Water Law and Policy in the 21st Century, ILA Water Resources Committee, ILA Berlin Conference 2004, Water Resources Committee Report Dissenting Opinion, available at http://www.internationalwaterlaw.org/documents/intldocs/ila_berlin_rules_dissent.html (last accessed on 31 August 2016). The ‘Berlin Rules’ were finalised during the Water Resources Committee meeting (March 2004) in Gent (Belgium).

170 UNECE, Convention on the Protection and Use of Transboundary Watercourses and International Lakes, done at Helsinki on 17 March 1992 (hereafter referred to as UNECE Water Convention), available at http://www.unece.org/env/water/text/text.html (last accessed on 31 August 2016). The UNECE Water Convention has 26 Signatories and 41 Parties as of 2 July 2016; see United Nations, United Nations Treaty Collection, Status as at … , Chapter XXVII Environment, 5. Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&lang=_en (last accessed on 31 August 2016).

171 The Protocol on Water and Health to the UNECE Water Convention was signed in 1999; see UN, Economic and Social Council, Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, done in London, on 17 June 1999. Its main objective is laid down in article 1; see UNECE, United Nations Economic Commission for Europe, Water Convention, at http://www.unece.org/env/water/ (last accessed on 31 August 2016). See also Attila Tanzi, ‘Regional Contributions to International Water Cooperation: The UNECE Contribution’ in Laurence Boisson de Chazournes, Christina Leb and Mara Tignino (eds.), International Law and Freshwater: The Multiple Challenges (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2013), 155–78.

172 On 6 February 2013.

173 See UNECE, United Nations Economic Commission for Europe, Water Convention, at http://www.unece.org/env/water/ (last accessed on 31 August 2016).

174 See UNECE, Seventh session of the meeting of the Parties to the Water Convention, available at http://www.unece.org/env/water/mop7.html#/ (last accessed on 31 August 2016).

175 Which international environmental agreements are to be considered as Multilateral Environmental Agreements (MEAs) is not completely clear. MEAs mostly are international environmental law agreements issued by the United Nations. There currently exist approximately 250 MEAs.

176Convention on Wetlands, Ramsar (Iran), 2 February 1971, available at http://www.ramsar.org/document/the-convention-on-wetlands-text-as-originally-adopted-in-1971 (last accessed on 31 August 2016). The Ramsar Convention has 169 Contracting Parties and covers 2,241 Ramsar Sites as of 2 July 2016; see Ramsar, available at http://www.ramsar.org (last accessed on 31 August 2016).

177 United Nations, Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, available at http://www.worldtradelaw.net/misc/viennaconvention.pdf (last accessed on 31 August 2016). Especially article 31:3(c) of the Vienna Convention is relevant though controversial, stating that: ‘There shall be taken into account (c) any relevant rules of international law applicable in the relations between the parties.’

178 See Marion Panizzon, Luca Arnold and Thomas Cottier, ‘Handel und Umwelt in der WTO: Entwicklungen und Perspektiven’, 2010 Umweltrecht in der Praxis Dep. 3: 199–247, at 210 and 232; Marion Panizzon, Good Faith in the Jurisprudence of the WTO, Studies in International Trade Law (Oxford and Portland, OR: Hart Publishing, 2006), at 2–6.

179 See, inter alia, Marion Panizzon, Luca Arnold and Thomas Cottier (2010), supra footnote 178, at 233; Thomas Cottier, ‘Implications for Trade Law and Policy: Towards Convergence and Integration’ in Christoph Bail, Robert Falkner and Helen Marquard (eds.), The Cartagena Protocol on Biosafety – Reconciling Trade in Biotechnology with Environment and Development (London: Earthscan, 2002), at 467–81. See also WTO, The Doha Mandate on Multilateral Environmental Agreements (MEAs), available at http://www.wto.org/english/tratop_e/envir_e/envir_neg_mea_e.htm (last accessed on 31 August 2016).

180 See WTO, Ministerial Conference, Fourth Session, Doha, 9–14 November 2001, Ministerial Declaration, WT/MIN(01)DEC/1 (Geneva: WTO, 20 November 2001), available at https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm (last accessed on 31 August 2016), at paragraph 31(i). See also paragraph 32.

181 The question is treated in the WTO’s Committee on Trade and Environment (CTE); see WTO, The Doha Mandate on Multilateral Environmental Agreements (MEAs), at http://www.wto.org/english/tratop_e/envir_e/envir_neg_mea_e.htm (last accessed on 31 August 2016).

182 See WTO, Report of the Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, at 17 (hereafter US – Gasoline (AB)).

183 See, inter alia, Gabrielle Marceau, ‘A Call for Coherence in International Law, Praises for the Prohibition against “Clinical Isolation” in WTO Dispute Settlement’, 1999 Journal of World Trade 33(5): 87–152.

184 UN, United Nations Convention on the Law of the Sea (UNCLOS), Montego Bay, 10 December 1982, A/CONF.62/122, available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (last accessed on 31 August 2016).

185 UN, Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, UNEP/Bio.Div./N7–INC5/4, available at http://www.cbd.int/convention/ (last accessed on 31 August 2016).

186 See International Union for Conservation of Nature (IUCN), Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington DC, 3 March 1973, available at https://www.cites.org (last accessed on 31 August 2016).

187 See WTO, Report of the Appellate Body, United States – Import Prohibitions of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998, at paragraphs 128–30 (hereafter referred to as US – Shrimp I (AB)).

188 See Marion Panizzon, Luca Arnold and Thomas Cottier (2010), supra footnote 178, at 210 and 236–9. See also Part III, Chapter 5.II.C, at 211 ff.

189 See Marion Panizzon, Luca Arnold and Thomas Cottier (2010), supra footnote, at 178, and 233.

190 United Nations, Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal, 29 January 2000, available at http://bch.cbd.int/protocol/text/ (last accessed on 31 August 2016).

191 See WTO, Reports of the Panel, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 September 2006 (hereafter EC – Biotech (Panel)).

192 See EC – Biotech (Panel), at paragraphs 7.67–7.75.

193 See e.g., Marion Panizzon, Luca Arnold and Thomas Cottier (2010), supra footnote 178, at 234–6. The ILA Committee on International Law on Biotechnology (2003– 2010) recommends: ‘In interfacing MEAs and WTO law, the Committee recommends the application of general international rules on interpretations and, more specifically, the application of principles and criteria of coexistence and coherence, i.e. the “principle of not adding to or diminishing the rights and obligations” and the concepts of “no hierarchy, mutual supportiveness and deference”’; see International Law Association (ILA), Resolution No. 5/2010 – The International Law on Biotechnology, The 74th Conference of the International Law Association, held in The Hague, The Netherlands, August 15–20, 2010, Recommendation 36 at 6, available at http://www.ila-hq.org/en/committees/index.cfm/cid/1016 (last accessed on 31 August 2016).

194 See Marion Panizzon, Luca Arnold and Thomas Cottier (2010), supra footnote 178, at 241.

195 See, inter alia, Joost Pauwelyn, Conflict of Norms in Public International Law – How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003), at 475; Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’, 2001 American Journal of International Law 95(3): 535–78.

196 See Marion Panizzon, Luca Arnold and Thomas Cottier (2010), supra footnote 178, at 239 ff.

197 See, inter alia, Ernst-Ulrich Petersmann, ‘Human Rights, Markets and Economic Welfare: Constitutional Functions of the Emerging UN Human Rights Constitution’ in Frederick M. Abbott, Christine Breining-Kaufmann and Thomas Cottier (eds.), International Trade and Human Rights – Foundations and Conceptual Issues, Studies in International Economics, The World Trade Forum, Volume 5 (Ann Arbor, MI: University of Michigan Press, 2006), 29–68; Joost Pauwelyn, ‘Human Rights in WTO Dispute Settlement’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi (eds.), Human Rights and International Trade, International Economic Law Series (Oxford: Oxford University Press, 2005), 205–31; Ernst-Ulrich Petersmann, ‘Human Rights and International Trade Law: Defining and Connecting the Two Fields’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi (eds.), Human Rights and International Trade, International Economic Law Series (Oxford: Oxford University Press, 2005), 29–94.

198 See Part I, Chapter 2.III, at 71 ff.

199 See United Nations, United Nations Treaty Collection, Status as at … , Chapter XXVII Environment, 12. Convention on the Law of the Non-Navigational Uses of International Watercourses, New York, 21 May 1997, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-12&chapter=27&lang=_en (last accessed on 31 August 2016).

200 See United Nations, United Nations Treaty Collection, Status as at … , Chapter XXVII Environment, 5. Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&lang=_en (last accessed on 31 August 2016).

201 See Part I, Chapter 2.III, at 71 ff.

202 See United Nations, United Nations Treaty Collection, Status as at … , Chapter IV Human Rights, 3. International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=_en (last accessed on 31 August 2016).

203 See Melanie Berger (2013), supra footnote 17, at 28; Edith Brown Weiss (2005), supra footnote 122, at 67. See also Part I, Chapter 1, at 28 ff.

204 See Laurence Boisson de Chazournes (2013), supra footnote 114, at 88; Edith Brown Weiss (2005), supra footnote 122, at 72.

205 See Laurence Boisson de Chazournes (2013), supra footnote 114, at 88.

206 See article XI paragraph 1 GATT.

207 See Laurence Boisson de Chazournes (2013), supra footnote 114, at 88–9; Melanie Berger (2013), supra footnote 17, at 40–1; Edith Brown Weiss (2005), supra footnote 122 at 70–1; Alix Gowlland Gualtieri (2010), supra footnote 107, 65–6; Mireille Cossy (2005), supra footnote 113, at 181–8.

208 See article XIII paragraph 1 GATT.

209 See article XI paragraph 2(a) GATT.

210 See also below, at footnote 213.

211 Hughes and Marceau admit that: ‘[o]ne might argue that water resources could fall within the category of products “essential” to an exporting party, thus making them eligible for the exception’; see Valerie Hughes and Gabrielle Marceau (2013), supra footnote 17, 266–97, at 271.

212 See, inter alia, Mireille Cossy (2005), supra footnote 113, at 181–8.

213 See WTO, Report of the Appellate Body, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R, 30 January 2012 (hereafter referred to as China – Raw Materials (AB)), at paragraph 328.

214 See Mireille Cossy (2005), supra footnote 113, at 185.

215 The use of export duties on certain natural resources can, however, be restricted in the framework of ‘WTO-plus’ obligations negotiated with new WTO Members (as well as in GATT schedules of commitments); see Julia Y. Qin, ‘Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resources, Economic Development and Environmental Protection’, 2012 Journal of World Trade 46(5): 1147–90; Julia Y. Qin, ‘The Predicament of China’s “WTO-Plus” Obligation to Eliminate Export Duties: A Commentary on the China-Raw Materials Case’, 2012 Chinese Journal of International Law 11: 237–46. See furthermore Ilaria Espa, ‘The Appellate Body Approach to the Applicability of Article XX GATT in the Light of China – Raw Materials: A Missed Opportunity?’, 2012 Journal of World Trade 46(6): 1399–423. See also Baris Karapinar, ‘Export Restrictions and the WTO Law: How to Reform the “Regulatory Deficiency”, 2011 Journal of World Trade 45(6): 1139–55.

216 See, inter alia, Mireille Cossy (2005), supra footnote 113, at 183–4. Also in this sense Edith Brown Weiss (2005), supra footnote 122, at 85. As an alternative, Brown Weiss advocates the possibility to cap bulk fresh water extractions, which would, in analogy with oil extractions capped by OPEC, not be breaching GATT obligations; see ibid, at 85.

217 For a legal analysis of the notion of ‘sustainable development’, see Elisabeth Bürgi Bonanomi, Sustainable Development in International Law Making and Trade – International Food Governance and Trade in Agriculture (Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 2015); Katja Gehne, Nachhaltige Entwicklung als Rechtsprinzip – Normativer Ausagegehalt, Rechtstheoretische Einordnung, Funktionen in Recht (Tübingen: Mohr Siebeck, 2011), with an English summary at 329–50; Nico Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Leiden/Boston: Martinus Nijhoff Publishers, 2008); Alan Boyle and David Freestone (eds.), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford: Oxford University Press, 1999). See also Douglas Fisher (2010), supra footnote 144; Antoinette Hildering, International Law, Sustainable Development and Water Management (Delft: Eburon, 2004).

218 See the preamble of the Marrakesh Agreement Establishing the World Trade Agreement, available at https://www.wto.org/english/docs_e/legal_e/legal_e.htm (last accessed 31 August 2016).

219 See Julia Y. Qin (2012), supra footnote 215, at 1172–3.

220 See ibid, at 1173.

221 The principle of ‘permanent sovereignty over natural resources’ emerged in the framework of the United Nations; see inter alia United Nations, General Assembly, Permanent Sovereignty over Natural Resources, Resolution 1803 (XVII), 14 December 1962; United Nations, General Assembly, Integrated Economic Development and Commercial Agreements, Resolution 523 (VI), 12 January 1952.

222 According to Schrijver, ‘[t]he principle of permanent sovereignty over natural resources has its roots in two main concerns of the United Nations: (i) the economic development of developing countries; and (ii) the self-determination of colonial peoples’; see Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 1997), at 369.

223 ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence’; see United Nations, International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1876, in accordance with Article 49, at article 1.2 (hereafter referred to as ICCPR), and United Nations, International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27, at article 1.2 (hereafter referred to as ICESCR).

224 See United Nations, Convention on Biological Diversity, Rio de Janeiro,5 June 1992, UNEP/Bio.Div./N7–INC5/4, available at http://www.cbd.int/convention/ (last accessed on 31 August 2016), which states in its preamble: ‘The Contracting Parties, … [r]eaffirming that States have sovereign rights over their biological resources.’

225 See Nico Schrijver (1997), supra footnote 222, at 386; Julia Y. Qin (2012), supra footnote 215, at 1166.

226 See also Part I, Chapter 2.III, at 71 ff.

227 See WTO, Report of the Panel, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, WT/DS395/R, WT/DS398/R, 5 July 2011 (hereafter referred to as China – Raw Materials (Panel)), at paragraph 7.381.

228 In this sense e.g. Julia Y. Qin (2012), supra footnote 215, at 1166.

229 See Nico Schrijver (1997), supra footnote 222, at 380. See also Nico Schrijver, ‘The Changing Nature of State Sovereignty’, 2000 British Yearbook of International Law 70(1): 65–98; Bernard V.A. Rölling, International Law in an Expanding World (Amsterdam: Djambatan, 1960).

230 WTO, Reports of the Panel, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431, WT/DS432/R, WT/DS433/R, 26 March 2014 (hereafter referred to as China – Rare Earths (Panel)).

231 The notion of ‘rare earths’ in casu refers to ‘the common name for a group of 15 chemical elements in the periodic table with atomic numbers 57 to 71. These elements are part of the so-called “lanthanide group”, composed of: lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium and lutetium. Two other rare earth elements are included in the scope of this dispute, namely, scandium (atomic No. 21) and yttrium (atomic No. 39.)’; see China – Rare Earths (Panel), at paragraph 2.3.

232 See above, at footnotes 213 (AB report) and 227 (Panel report). See also Thomas Cottier, Tobias Naef, Tetyana Payosova, Rodrigo Polanco, Victor Saco and Charlotte Sieber-Gasser, ‘The Jurisprudence of the World Trade Organization in 2012’, 2013 Schweizerische Zeitschrift für Internationales und Europäisches Recht 3: 505–40, at 521–7.

233 See China – Rare Earths (Panel), at paragraph 7.605.

234 See articles XX(b) and XX(g) GATT.

235 See US – Gasoline (AB).

236 See also below Part III, Chapter 5.II, at 194 ff.

237 The ‘necessary test’ was established in the Korea – Beef case in the context of article XX(d) GATT; see WTO, Report of the Appellate Body, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS/169/AB/R, 11 December 2000 (hereafter referred to as Korea – Beef (AB)), at paragraph 164. See also Patricio Leyton, ‘Evolution of the “Necessary Test” of Article XX(b): From Thai Cigarettes to the present’ in Edith Brown Weiss, John H. Jackson and Nathalie Bernasconi-Osterwalder (eds.), Reconciling Environment and Trade (Leiden/Boston: Martinus Nijhoff Publishers, 2008), 77–102.

238 See Korea – Beef (AB), at paragraph 162.

239 See e.g., WTO, Report of the Appellate Body, European Communities – Measures Affecting Asbestos and Asbestos-containing Products, WT/DS135/AB/R, 12 March 2001 (hereafter referred to as EC – Asbestos (AB)); US – Gasoline (AB); WTO, GATT Report, United States – Restrictions on Imports of Tuna, Report of the Panel, DS29/R, 16 June 1994, not adopted; WTO, GATT Report, United States – Restrictions on Imports of Tuna, DS21/R, 39S/155, 3 September 1991, not adopted.

240 See Laurence Boisson de Chazournes (2013), supra footnote 114, at 89. See also Baris Karapinar (2011), supra footnote 215.

241 See Alix Gowlland Gualtieri (2010), supra footnote 107, at 69. See also ibid, footnote 38 at 70.

242 See WTO, Report of the Panel, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, 29 January 1996 (hereafter referred to as US – Gasoline (Panel)), at paragraph 6.37. See also Victoria H. Imperiale, ‘Characterizing Air as an Exhaustible Natural Resource’ in Edith Brown Weiss, John H. Jackson and Nathalie Bernasconi-Osterwalder (eds.), Reconciling Environment and Trade (Leiden/Boston: Martinus Nijhoff Publishers, 2008), 247–64.

243 See WTO, Report of the Appellate Body, United States – Import Prohibitions of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998 (hereafter referred to as US – Shrimp I (AB)), at paragraph 130. See also Lewis Briggs, ‘Conserving “Exhaustible Natural Resources”: The Role of Precedent in the GATT Article XX(g) Exception’ in Edith Brown Weiss, John H. Jackson and Nathalie Bernasconi-Osterwalder (eds.), Reconciling Environment and Trade (Leiden/Boston: Martinus Nijhoff Publishers, 2008), 265–98.

244 See also below, at 52–3 and 90.

245 In this sense see Alix Gowlland Gualtieri (2010), supra footnote 107, at 70; International Joint Commission (22 February 2002), supra footnote 105,at 42.

246 See Peter H. Gleick et al., The World’s Water 2002–2003The Biennial Report on Freshwater Resources (Washington DC: Island Press, 2002), at 49–50 and Peter H. Gleick, ‘Water in Crisis: Paths to Sustainable Water Use’, 1998 Ecological Applications 8(3): 571–9, at 576; Alix Gowlland Gualtieri (2010), supra footnote 107, at 70.

247 In this sense see Edith Brown Weiss (2005), supra footnote 122, at 73.

248 See Alix Gowlland Gualtieri (2010), supra footnote 107, at 70; Robert J. Girouard (2003), supra footnote 114, at 255. See also Part III, Chapter 5.II, at 206 ff.

249 See Robert J. Girouard (2003), supra footnote 114, at 255 and 263.

250 See Part III, Chapter 5.II, at 206 ff.

251 See also Part III, Chapter 5.II.C, at 211 ff.

252 See Robert J. Girouard, (2003), supra footnote 114, at 263.