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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."
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