INTRODUCTION The North American Free Trade Agreement (NAFTA) came into force on New Year’s Day 1994. The signatory members are the United States, Mexico, and Canada. While the purpose of NAFTA is to promote investment in those regions, the treaty does not confirm if water is a saleable good. The text fails to mention the word “water,” but nor does it expressly prohibit transactions involving the natural resource. This terse dichotomy leads to the following issue. The issue is whether freshwater reserves can be extracted for sale, or, preserved as natural resources. Is water a good and commodity? If so, then fresh water is a property right. That means that governments and private investors can sell bulk water. This argument is strengthened
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It recognizes exceptions in the forms of commercial goods that contain water. “Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin.” According to section 3.2(b), the daily quota of water that can be removed is 50,000 liters. It is important further to distinguish that any water that is taken and then put in manufactured products is no longer in its natural state. The water becomes an object of purchase and consumption. Consequently, the Act relinquishes protection. As a good, that water now becomes subject to trade law including the NAFTA treaty. Perhaps the Act should have confirmed that a person who gains access to water under section 3.2(b) does not acquire property rights. A similar issue was considered in Bayview Irrigation District v. United Mexican States, a Chapter 11 water dispute between Mexico and entities in the U.S. The ICSID Arbitral Tribunal ruled, “One owns the water in a bottle of mineral water, as one owns a can of paint. If another person takes it without permission, that is theft of one’s property. But the holder of a right granted by the State of Texas to take a certain amount of water from the Rio Bravo / Rio Grande does not ‘own’, does not ‘possess property rights in’, a particular volume of water as it descends through Mexican streams and rivers towards the Rio Bravo / Rio Grande and finds its way into the right-holders irrigation pipes. While the water is in Mexico, it belongs to Mexico, even though Mexico may be obliged to deliver a certain amount of it into the Rio Bravo / Rio Grande for taking by US
It recognizes exceptions in the forms of commercial goods that contain water. “Bulk removal does not include the taking of a manufactured product that contains water, including water and other beverages in bottles or other containers, outside a water basin.” According to section 3.2(b), the daily quota of water that can be removed is 50,000 liters. It is important further to distinguish that any water that is taken and then put in manufactured products is no longer in its natural state. The water becomes an object of purchase and consumption. Consequently, the Act relinquishes protection. As a good, that water now becomes subject to trade law including the NAFTA treaty. Perhaps the Act should have confirmed that a person who gains access to water under section 3.2(b) does not acquire property rights. A similar issue was considered in Bayview Irrigation District v. United Mexican States, a Chapter 11 water dispute between Mexico and entities in the U.S. The ICSID Arbitral Tribunal ruled, “One owns the water in a bottle of mineral water, as one owns a can of paint. If another person takes it without permission, that is theft of one’s property. But the holder of a right granted by the State of Texas to take a certain amount of water from the Rio Bravo / Rio Grande does not ‘own’, does not ‘possess property rights in’, a particular volume of water as it descends through Mexican streams and rivers towards the Rio Bravo / Rio Grande and finds its way into the right-holders irrigation pipes. While the water is in Mexico, it belongs to Mexico, even though Mexico may be obliged to deliver a certain amount of it into the Rio Bravo / Rio Grande for taking by US