WHO OWNS “YOUR” WATER? RECLAIMING WATER AS A PUBLIC GOOD UNDER INTERNATIONAL TRADE AND INVESTMENT LAW

This research paper by Howard Mann of the International Institute for Sustainable Development examines how international trade and investment agreements, specifically NAFTA and WTO rules, impact the management of water as a public good. The author argues that while states retain legal jurisdiction, these agreements can severely limit sovereign control, lock in weak domestic management practices, and prioritize foreign investor rights over local and indigenous needs through secretive arbitration processes.

• Under NAFTA, water is not covered by trade provisions unless it has entered into commerce and become a good or product. However, this creates a risk where a single export permit could be interpreted as water entering commerce, potentially requiring states to provide equal, non-discriminatory access to freshwater resources for other sellers.
• While trade law generally does not mandate the privatization of water services, states that choose to open these sectors to the private sector must grant foreign companies equal opportunities. Foreign investors often rely on five specific rights—including national treatment and protection against expropriation—which are enforceable through investor-state arbitration processes that bypass domestic legal systems.
• International investment agreements can lead to legal challenges if a state reduces allowed water usage for a foreign facility or implements new anti-pollution rules. Such actions may be viewed as expropriation, potentially forcing governments to compensate foreign investors for the right to regulate pollution or manage water scarcity.
• The combination of international investment agreements and the privatization of water can 'lock in' weak, ineffective, or corrupt domestic water management regimes. Because investor rights are enforceable under international law, subsequent attempts to improve local laws or contract terms can become prohibitively costly or legally difficult.
• To reclaim control over water resources, the author recommends that states improve domestic legal and administrative frameworks before entering into investment agreements. Additionally, the author advocates for treating water as a 'special resource' in negotiations and ensuring full transparency in the awarding of contracts and the resolution of investment disputes.

APA

International Institute for Sustainable Development (n.d.). WHO OWNS “YOUR” WATER? RECLAIMING WATER AS A PUBLIC GOOD UNDER INTERNATIONAL TRADE AND INVESTMENT LAW. https://www.iisd.org/system/files/publications/trade_who_owns_water_II.pdf

Chicago

International Institute for Sustainable Development. WHO OWNS “YOUR” WATER? RECLAIMING WATER AS A PUBLIC GOOD UNDER INTERNATIONAL TRADE AND INVESTMENT LAW. n.d. https://www.iisd.org/system/files/publications/trade_who_owns_water_II.pdf.

Wikipedia

{{cite report |author=International Institute for Sustainable Development |title=WHO OWNS “YOUR” WATER? RECLAIMING WATER AS A PUBLIC GOOD UNDER INTERNATIONAL TRADE AND INVESTMENT LAW |url=https://www.iisd.org/system/files/publications/trade_who_owns_water_II.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{internationalinstituteforsustainabledevelopmentndwho, author = {{International Institute for Sustainable Development}}, title = {{WHO OWNS “YOUR” WATER? RECLAIMING WATER AS A PUBLIC GOOD UNDER INTERNATIONAL TRADE AND INVESTMENT LAW}}, institution = {International Institute for Sustainable Development}, url = {https://www.iisd.org/system/files/publications/trade_who_owns_water_II.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }