The GATS and Regulatory Autonomy: A Case Study of Social Regulation of the Water Industry

In June 2002, the UN High Commissioner for Human Rights released a report entitled ‘Liberalization of trade in services and human rights’. In this article, the author examines one of the concerns voiced in that report, that the GATS potentially affects the ability of governments to regulate the water industry in the pursuit of social objectives. This claim has been disputed by a number of other commentators. Taking both the claim and its critics on their own terms, he applies GATS non-discrimination articles to typical water sector regulation, to determine whether, and in what circumstances, such regulation potentially violates those provisions. He argues that one should view with some skepticism strong claims that the GATS does not restrict social regulation of the water sector, as they are often based on unjustifiably robust interpretations of the protective provisions of the GATS. At the same time, he identifies a number of promising argumentative strategies of potential use for those interested in protecting domestic regulatory autonomy in the water sector.