Under NAFTA's Article 309, similar to GATT's Article XI, contracting parties are prohibited from restricting the export of goods. At issue is whether water is a "good," but WTO says it is. Further, the US Supreme Court ruled water an article of interstate commerce.
In Sporhase v. Nebraska ex. rel. Douglas (1882), the Court called a Nebraska law prohibiting commercial water exports unconstitutional under the dormant commerce clause - a legal doctrine inferred from the Commerce Clause in the Constitution's Article I, expressly granting Congress the power to regulate interstate commerce, not the states.
The Court called groundwater an article of interstate commerce subject to congressional regulation. Since none prohibit it, profiteers can sell it like toothpaste, toys, or tomatoes.
Worse still, WTO and NAFTA provisions are supernational, overriding national laws on trade, rendering protective ones null and void. Water is thus a tradable commodity, no different from others, unless new provisions replace existing ones.
What the Supreme Court ruled for interstate commerce, NAFTA and WTO did for international trade, so it's unclear how to stop it even though one argument could be that water in its natural state (in lakes, rivers and underground) hasn't become a tradable good, and GATT's Article XX prescribes "natural resources" exceptions to treaty obligations that might let WTO members control water exports for environmental protection.
Yet the language is vague, and GATT/WTO decisions interpret Article XX to mean limited and conditional ones, placing a heavy burden of proof on parties invoking them, thus pitting a nation's right to protect its environment and control its water against the rules of international trade. So far, corporate profiteers have the upper hand, especially since America, Canada, and many other nations go along.
But as Maude Barlow wrote in her book "Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water:"
The "global justice movement is demanding a change in international law to settle once and for all the question of who controls water. It must be commonly understood that water is not a commercial good....but rather a human right and a public trust." Binding law is needed to codify it to obligate all nations "to deliver sufficient, safe, accessible and affordable water to their citizens as a public service."
Corporate control must be prevented, and global water justice efforts must take the lead. Various initiatives globally are making headway. "Momentum is growing everywhere for a right whose time has come," but it won't arrive easily up against powerful opposition.
Stealing Canada's Water Wealth
Canadian attorney John Carten runs the web site waterwarcrimes.com, covering the plan to highjack Canadian water, involving powerful insiders trying to make billions of dollars through bulk water exports, some entirely illegal.
A feature article headlines: "The Politicians Plan to Steal Canada's Water Resource Wealth," explaines that Canada has abundant water, especially in Quebec in the East, and British Columbia (BC) in the West. The temptation to profiteer is overwhelming. The way chosen is by monopoly control, "the investors behind the bulk water export business hatch(ing) a bold and devious two step plan:
1. Obtain a source of abundant water for export from the British Columbia Government.
2. Use the environmental movement and the public media in Canada to (ensure that) policy makers in the Governments of Canada and British Columbia" ban competition.
Targeted was "the joint venture project of two small companies, one American, Sun Belt Water Inc. based in Santa Barbara, California, and one Canadian, Snowcap Waters Ltd. based in Fanny Bay, BC and the small Vancouver based company, Aquasource Ltd."
Investors established WCW Western Canada Water Enterprises Ltd. to run things, hired PR flacks and corrupted environmentalists to hype fear about unrestricted bulk water exports, so the solution was prohibiting it with an exception - the rights WCW already had giving it an exclusive franchise.