JOBNAME: Temmerman PAGE: 1 SESS: 13 OUTPUT: Mon Jun 19 09:03:31 2017 Introduction That we cannot live alone, at peace; that our own well-being is dependent on the well-being of other nations – far away. We have learned to be citizens of the world, members of the human community. We have learned the simple truth of Emerson that ‘the only way to have a friend is to be one’. Franklin D. Roosevelt, 20 January 1945 All life-forms depend on the availability of water. Water is a unique resource which cannot be produced artificially. Although the total amount of water resources on the planet is enormous and remains constant in a closed hydrological cycle, only 2.5 per cent of all water resources are fresh water resources.1 Of the fresh water resources, 68.7 per cent is trapped in glaciers, 30.1 per cent is in the form of groundwater, 0.8 per cent is trapped in permafrost, and 0.4 per cent is surface and atmospheric water.2 In total, less than 1 per cent of all the fresh water available on the planet is relatively easily accessible for human consumption and to meet agricultural and industrial demands.3 Additionally, the remaining percent- age of the relatively easily accessible fresh water resources is unequally divided over the planet. Fresh water is already a scarce resource for many people in many regions of the world.4 According to the latest update of the ‘WHO/UNICEF Joint Monitoring Programme (JMP) for Water 1 See UNEP, Global Environmental Outlook (GEO) 4: Environment for Development (Nairobi: UNEP, 2007), Figure 4.1 ‘Global distribution of the world’s water’, at 118, available at http://www.unep.org/geo/GEO4/report/ GEO-4_Report_Full_en.pdf (last accessed on 31 August 2016). 2 See ibid. 3 See University of Michigan, Human Appropriation of the World’s Fresh Water Supply, available at http://studylib.net/doc/5904966/human-appropriation- of-the-world-s-fresh-water-supply (last accessed on 31 August 2016). 4 See UNEP/GRID-Arendal, Vital Water Graphics – An Overview of the State of the World’s Fresh and Marine Waters – 2nd edition – 2008, Water Scarcity Index, available at http://www.unep.org/dewa/vitalwater/article77.html (last accessed on 31 August 2016). 1 Fitzgerald Temmerman - 9781785369131 Downloaded from Elgar Online at 09/27/2021 06:53:53AM via free access Columns Design XML Ltd / Job: Temmerman-Trade_in_water_under_international_law-x / Division: Text /Pg. Position: 1 / Date: 30/5 JOBNAME: Temmerman PAGE: 2 SESS: 13 OUTPUT: Mon Jun 19 09:03:31 2017 2 Trade in water under international law Supply and Sanitation’, an estimated 663 million people still use poor- quality drinking water sources.5 Economic development accompanied by increasing energy needs as well as population growth are boosting competition over the world’s available fresh water resources.6 Add- itionally, climate change and global warming could severely restrict access to fresh water in many countries and regions of the world.7 Fifteen of the hottest years globally were recorded since 2001, the warmest year of all being 2015.8 All factors combined, it is clear that more sustainable and efficient use of the available fresh water resources will become crucial in future (global) water management. The fact that, around five years ago, water (supply) crises suddenly appeared in the World Economic Forum (WEF) top five of ‘Global Risks in Terms of Likelihood’, is undoubtedly to be understood as a pressing 5 See WHO/UNICEF, Progress on Drinking Water and Sanitation: 2015 Update and MDG Assessment (WHO/UNICEF, Joint Monitoring Programme (JMP) for Water Supply and Sanitation, 2015), at 4, available at http://www. unicef.org/publications/index_82419.html (last accessed on 31 August 2016). 6 See e.g., United Nations Educational, Scientific and Cultural Organization (UNESCO), The United Nations World Water Development Report 2015 – Water for a Sustainable World (Paris: UNESCO, 2015), at 65, available at http:// www.unesco.org/new/en/natural-sciences/environment/water/wwap/wwdr/2015- water-for-a-sustainable-world/ (last accessed on 31 August 2016). See also A.E. Ertug Ercin and Aryen Y. Hoekstra, ‘Water Footprint Scenarios for 2050: A Global Analysis’, 2014 Environment International 64: 71–82, available at http://waterfootprint.org/media/downloads/Ercin-Hoekstra-2014-WaterFootprint Scenarios2050.pdf (last accessed on 31 August 2016). 7 See, inter alia, Jessica Blunden and Derek S. Arndt (eds.), ‘State of the Climate in 2015’, 2016 Bull. Amer. Meteor. Soc., 97(8): 1–275, at xvi, available at https://www.ametsoc.org/ams/index.cfm/publications/bulletin-of-the-american- meteorological-society-bams/state-of-the-climate/ (last accessed on 31 August 2016); IPCC, Climate Change 2014: Impacts, Adaptation and Vulnerability (Geneva: IPCC, 2014), at Chapter 3 ‘Freshwater resources’, available at http:// www.ipcc.ch/ (last accessed on 31 August 2016); [IPCC] Thomas F. Stocker, Dahe Qin, Gian-Kasper Plattner, Melinda M.B. Tignor, Simon K. Allen, Judith Boschung, Alexander Nauels, Yu Xia, Vincent Bex and Pauline M. Midgley (eds.), Climate Change 2013: the Physical Science Basis – Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change – Summary for Policymakers (Cambridge/New York: Cambridge University Press, 2013), Figure SPM.2 at 8, available at http://www.ipcc.ch/ (last accessed on 31 August 2016. 8 See NASA, NASA NOAA Analyses Reveal Record Shattering Global Warm Temperatures in 2015, available at http://www.nasa.gov/press-release/nasa- noaa-analyses-reveal-record-shattering-global-warm-temperatures-in-2015 (last accessed on 31 August 2016). Fitzgerald Temmerman - 9781785369131 Downloaded from Elgar Online at 09/27/2021 06:53:53AM via free access Columns Design XML Ltd / Job: Temmerman-Trade_in_water_under_international_law-x / Division: Text /Pg. Position: 2 / Date: 30/5 JOBNAME: Temmerman PAGE: 3 SESS: 13 OUTPUT: Mon Jun 19 09:03:31 2017 Introduction 3 global wake up-call. Water (supply) crises ranked number two both in 2012 and 2013, number three in 2014, number one in 2015 and, most recently, number three in 2016 after ‘failure of climate-change mitigation and adaptation’ and ‘weapons of mass destruction’.9 The reason for this constant and prominent appearing in the WEF’s ‘Global Risk Landscape’ mainly lies in the potential negative impact of climate change on global food security. One must thereby realise that agricultural irrigation pres- ently already accounts for approximately 70 per cent of global fresh water consumption.10 One must also realise that agriculture has to compete increasingly with cities and other industries over the availability of fresh water resources. Additionally, global demand for agricultural products is expected to increase by approximately 60 per cent by the year 2030.11 It is thus not difficult to imagine that any additional negative impacts caused by climate change on the availability of fresh water resources, can have devastating impacts in many – already pressured – countries and regions around the globe. New adaptive strategies in water management are emerging, such as (international) trade in bulk fresh water, drip-irrigation and ‘(inter- national) virtual water trade’. Since trade in bulk fresh water and virtual water trade are primarily emerging on the global level, it is only a small step to think that the World Trade Organization (WTO), being the global trade regulatory institute, could play a pivotal role in regulating these newly emerging fields. Additionally, since the entry into force of the 1995 Agreement on Agriculture, the WTO disposes over a powerful regulatory framework applicable to the worldwide subsidisation of irriga- tion. As three of the most prominent (and controversial) topics of global water management in the context of climate change, trade in bulk fresh 9 See WEF, The Global Risks Report 2016, 11th Edition, Figure 1.1.1, ‘The Evolving Risks Landscape 2007–2016’, at 11, available at http://reports. weforum.org/global-risks-2016/ (last accessed on 31 August 2016). 10 See Stefan Siebert, Jacob Burke, Jean-Marc Faurès, Karen Frenken, Jippe Hoogeveen, Petra Döll, and Felix T. Portmann, ‘Groundwater use for Irrigation – A Global Inventory’, 2010 Hydrology and Earth System Sciences, 14, 1863– 2010, at 1863, available at http://www.hydrol-earth-syst-sci.net/14/1863/2010/ hess-14-1863-2010.html (last accessed on 31 August 2016). 11 UNEP, Options for Decoupling Economic Growth from Water Use and Water Pollution, A Report of the Water Working Group of the International Resource Panel, 2015, at 2, available at http://www.unep.org/resourcepanel/ KnowledgeResources/AssessmentAreasReports/Water/tabid/133332/Default.aspx (last accessed on 31 August 2016). Fitzgerald Temmerman - 9781785369131 Downloaded from Elgar Online at 09/27/2021 06:53:53AM via free access Columns Design XML Ltd / Job: Temmerman-Trade_in_water_under_international_law-x / Division: Text /Pg. Position: 3 / Date: 30/5 JOBNAME: Temmerman PAGE: 4 SESS: 13 OUTPUT: Mon Jun 19 09:03:31 2017 4 Trade in water under international law water,12 irrigation subsidies, and virtual water trade13 are three major topics to be discussed under the framework of this book.14 I THE QUEST FOR SUSTAINABILITY: ON HOW TO (EQUITABLY) SHARE THE WORLD’S FRESH WATER RESOURCES A. Trade in Bulk Fresh Water Effective trade in bulk fresh water (i.e. fresh water in large quantities) still occurs only sporadically. For example, during the dry summer of 2008, two emergency situations hit the headlines of the international press: the city of Barcelona had to be supplied with fresh water tanker shipments by the ‘Société des Eaux de Marseille’ providing water taken from the River Rhone in Marseille,15 and Greece was asked to supply the city of Limassol in Cyprus with fresh water tanker shipments.16 Such incidents could become more frequent as a result of climate change and global warming.17 In the meantime, however, examples of failed trade in 12 Unless it is explicitly mentioned otherwise the notion of ‘trade in bulk fresh water’ refers to trade in bulk fresh water in an international context.