MJIEL Vol 14 Issue 2 2017 - Article 4

Water Trade and the WTO:
An Analysis of Slovakia’s Constitutional Ban on the Export of Water
Elaine Kellman
 
ABSTRACT: This article reviews the tension between a state’s ability to impose constitutional restrictions on trade, and its WTO obligations. It uses as a case study Slovakia’s 2014 constitutional ban on the export of bulk water (the ‘prohibition’). In light of the recent focus on export restrictions by the WTO DSB, and the increasing popularity of export restrictions with resource-endowed states, it focuses on the GATT prohibition on export restrictions and analyses the defences available to a state seeking to impose such a restriction. In particular, it highlights the importance of the context and structure of export restrictions, arguing that, as structured, the prohibition is likely to fall foul of Article XI of GATT. It examines the interplay and tense balance between Article XI and the GATT exceptions, concluding, after a review of the exceptions, that the prohibition is unlikely to be justified under GATT. While this conclusion may not be controversial when a prohibition is purely intended to promote domestic industries, the article concludes that there may be circumstances where the GATT currently does not address key factors that might be behind a states’ decision to restrict the export of essential natural resources like water.

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