Maude Barlow is the chairperson of the Council of Canadians, and the founder of the Blue Planet Project. She is a recipient of Sweden’s Right Livelihood Award, and a Lannan Cultural Freedom Fellowship. As well as being a noted human rights and trade activist, Barlow is the author of a number of books on water rights – including Blue Gold,[1] Blue Covenant,[2] and Blue Future.[3] She has been particularly vocal on the impact of trade and investment agreements upon water rights. Barlow has been critical of the push to include investor-state dispute settlement clauses in trade agreements – such as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP). She has also been concerned by the Trade in Services Agreement (TISA) leaked by WikiLeaks.
In her book Blue Future, Maude Barlow reflects upon the recognition by the United Nations General Assembly of the human right to safe and clean drink water and sanitation as ‘essential for the full enjoyment of the right to life’.[4] She observed:
Recognizing a right is simply the first step in making it a reality for the millions who are living in the shadow of the greatest crisis of our era. With our insatiable demand for water, we are creating the perfect storm for an unprecedented world water crisis: a rising population and an unrelenting demand for water by industry, agriculture, and the developed world; over-extraction of water from the world’s finite water stock; climate change, spreading drought; and income disparity between and within countries, with the greatest burden of the race for water falling on the poor.[5]
Barlow enunciates several principles for a water-secure future. First, she emphasizes that water is a human right. Second, Barlow emphasizes that water is a common heritage, and must not be allowed to become a commodity to be bought and sold on the open market. Third, she makes the case for the protection of source water and watershed governance. Finally, she hopes that communities can ‘come together around a common threat – the end of clean water – and find a way to live more lightly on this planet’.[6] Barlow maintains that ‘the grab for the planet’s dwindling resources is the defining issue of our time.’[7] She contends: ‘Water is not a resource put here solely for our convenience, pleasure, and profit; it is the source of all life.’[8]
Barlow is concerned about how water rights will be affected trade and investment agreements – such as Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), and the Trade in Services Agreement (TISA).
A. Investor-State Dispute Settlement
In her book, Barlow expresses concerns about how ‘increasingly the International Centre for Settlement of Investment Disputes (ICSID) is being used to challenge the rights of governments to introduce new environmental or health regulations.’[9] She mentions the action by Philip Morris against Australia’s plain packaging of tobacco products;[10] and the action by the Swedish company, Vattenfall, against Germany’s decision to phase out nuclear power.[11]
In light of such significant controversies, Barlow explores the use of investor-state dispute settlement in respect of water resources:
Water companies are using this court to fight governments that try to regain public control of their water services. In 1999, Azurix, a subsidiary of Enron Corporation, agreed to purchase the exclusive right to provide water and sanitation services to parts of Buenos Aires for thirty years. When the Argentine government issued a warning to citizens to boil their water after an algae outbreak, some customers refused to pay their water bills; the company withdrew from the contract and sued the government. A 2007 ICSID tribunal found in favour of the company and ordered the government of Argentina to pay $165 million in compensation.[12] In 2010 the ICSID again ruled in favour of a water company, in a dispute involving the French transnational Suez.[13] This time it was the Argentine government that rescinded the contract, because of concerns over water quality, lack of wastewater treatment, and mounting tariffs.[14]
In the view of Barlow, investor-state dispute settlement has been used to entrench and protect the privatisation of water projects, and the commodification of water.
Barlow has been disturbed by the operation of investor-state dispute settlement clauses under the North America-Free Trade Agreement 1994 (NAFTA). She has commented on a number of controversies:
Canada’s freshwater heritage, for instance, has been directly affected by Chapter 11, the investor-state clause of NAFTA, which allows American corporations operating in Canada to sue for financial compensation if any changes are made to the policies or practices under which they first invested. In 2002, S.D. Myers, an American company specializing in disposal of hazardous waste, including PCBs, was awarded more than $8 million from the Canadian government for loss of profit after Canada banned trade in PCBS to protect the environment and human health.[15] Currently Lone Pine Resources,[16] an American energy company, is suing the government of Canada for $250,000 because in 2011 the province of Quebec passed a moratorium on shale-gas fracking in order to protect its water reserves.[17]
Of particular concern to Barlow is the potential use of investor-state dispute settlement in respect of Alberta’s Tar Sands: ‘If the government of Alberta were ever to limit the current water access of energy companies operating in the tar sands, say legal experts, the American companies could sue for huge sums of compensation from the government of Canada’.[18] She is concerned that such a measure could have a chilling effect upon government regulation: ‘Equally worrisome, they say, is that the threat of such compensation might prevent the Alberta government from taking such a step in the first place, allowing American energy corporations to dictate Canadian policy.’[19]
Barlow has also been disturbed by the Government of Canada awarding compensation to a United States company, Abitibi Bowater, for water rights after it abandoned its Canadian operations.[20] Barlow commented:
After running a pulp and paper mill in Newfoundland for more than a century, U.S. forestry giant Abitibi Bowater declared bankruptcy and left the province in 2008. The Newfoundland government expropriated the company’s assets in the province, including its water rights, in order to help pay for environmental cleanup and pensions for laid-off workers. The Newfoundland government argued that the water belonged to the province and was allocated to the company only as it operated a mill there. Abitibi Bowater sued the Canadian government under Chapter 11 of NAFTA, and the Harper government settled without going to a NAFTA tribunal, giving the company $130 million in compensation. This has set a dangerous precedent whereby corporations from one country operating in another can now claim ownership of local water supplies, thus providing one more way in which the world’s water is becoming commodified and privatized.[21]
In her view, the investment regime in NAFTA undermines water rights and water sovereignty in Canada.
There has been a larger concern as to whether Canadian companies will invoke investor-state dispute settlement if the Keystone XL Pipeline is blocked or delayed. TransCanada Corp. CEO Russ Girling has commented on the issue:
Those are issues that are sort of well beyond what we’re contemplating at the current time and not something we’ve spent a whole bunch of time analysing. Down the road that’s something that hopefully we don’t have to take a look at, but obviously something that we would have to look at if we end up in a situation where the pipeline’s delayed indefinitely or denied. “Our view is this pipeline looks no different than other pipelines that have been approved, that continue to be approved in the United States. We can’t think of a legitimate reason why we can’t move forward with this pipeline at the current time… Our focus is on getting a pipeline built and doing what’s necessary to provide the authorities with the information they need to make a positive decision.[22]
There has also been discussion as to whether the Canadian Government would bring a country-to-country action against the United States if the Keystone XL Pipeline was delayed or blocked.[23] There has been discussion as to whether free trade agreements will fast-track the controversial proposal.[24]
Maude Barlow has also expressed concerns about the use of investor-state dispute settlement clauses in disputes over mining – such as in El Salvador.[25]
B. Trade Agreements
Maude Barlow has questioned the inclusion of investor-state dispute settlement in NAFTA. In a letter to The Globe and Mail on the 30 July 2014, she questioned:
If investor-state dispute settlements were designed “to protect developed-world companies from capricious actions by governments of countries without developed-world legal standards,” why were they necessary in NAFTA? And why is Canada facing over $2.5-billion in challenges from American corporations?[26]
The Council of Canadians has been critical of the secrecy surrounding the Trans-Pacific Partnership.[27] Trade campaigner, Stuart Trew, has stressed: ‘There can be no honest talk of improving NAFTA while all three countries are busy making it worse in a Trans-Pacific Partnership that will, for all intents and purposes, replace the North American agreement.’[28] He commented: ‘From every leaked text, it’s clear the TPP will just entrench NAFTA’s corporate privileges and an unsustainable trade model that is getting in the way of addressing poverty, inequality and climate change.’[29] Harris recommended: ‘If North American leaders wanted to do something truly important for trade on the continent, they would come out of the dark and open up the negotiating process to public input.’[30]
Maude Barlow has expressed concerns that CETA poses a threat to local democracy.[31] She observed that ‘the Harper government is ideologically driven by a belief in the privatization, deregulation and strengthened corporate power that attend trade deals like CETA and others it is negotiating, and does not encourage debate on any of them.’[32] Maude Barlow has been heartened by the concerns of Germany about the inclusion of investor-state dispute settlement in CETA and TTIP.[33] She commented: ‘We are pleased that the German government has listened to critics of the investor-state dispute settlement provisions of the deal that give foreign corporations the right to dictate domestic policy.’[34] Scott Harris, trade campaigner with the Council of Canadians, observed that European policy-makers had informed about the history of investor-state dispute settlement actions in Canada: ‘We’ve told them about all the lawsuits Canada has faced under NAFTA for legitimate regulations that protect our health and environment.’[35]
Maude Barlow’s Council of Canadians has engaged in the public consultation on investment protection and investor-to-state dispute settlement in the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP).[36] The Council of Canadians expressed its opposition ‘to the inclusion of expansive investment protections which favour the rights of foreign investors over government policy, and to the inclusion of investor-state dispute settlement (ISDS) processes in trade and investment agreements.’[37] The Council of Canadians observed: ‘These measures unnecessarily subject legitimate domestic regulatory and other policy decisions to the risk of challenge by foreign investors and to the decisions of unaccountable arbitrators’.
The Council of Canadians commented: ‘Based on two decades of Canadian experience we are of the opinion that such measures constitute an undemocratic constraint on domestic policy, and that the focus of this consultation on minor reforms avoids the more fundamental question about the legitimacy of investor rights and investor-state arbitration.’[38] The Council of Canadians insisted: ‘ISDS and investment provisions which place the rights of investors above the sovereign rights of states to govern in the public interest should not be included in either the US-EU TTIP or the Canada-EU CETA.’[39] The group emphasized: ‘We see no reason why governments –and by extension, taxpayers –should be held responsible in any way for bearing the cost of insuring foreign corporations against the risks inherent in choosing to invest in a foreign country.’[40]
Maude Barlow has also expressed concerns about the Trade in Services Agreement (TISA) released by WikiLeaks, fearing that it could be used to lock in water privatisation.[41]
C. Fair Trade
Thinking about such investor-state dispute settlement controversies, Maude Barlow expresses concerns over corporations, writing the rules for trade: ‘There are almost three thousand bilateral deals between governments, most giving corporations these extraordinary rights, and many of them are used to gain access to the commons resources of other countries, placing the world’s forests, fish, minerals, land, air, and water supplies under direct control of transnational corporations.’[42]
Barlow observed: ‘Australia [under the Rudd and Gillard Governments] banned the negotiation of trade deals that include any type of investor-state clauses, and Brazil, which now has the tenth largest GDP in the world, is not a party to any bilateral investment treaties and has not ratified the ICSID.’[43] She insisted that ‘Australia and Brazil must become a model for every country in the world.’[44] Barlow feared that ‘investor-state clauses that give corporations the right to sue foreign governments for compensation or to place a chill on governments considering new laws and practices to protect their environment, the health and safety of their people, or social rights must go.’[45]
Supporting the work of Thomas McDonagh from the Democracy Center,[46] Barlow argued that there was a need to completely overhaul investment agreements. She emphasized the need for restrictions on the definition of ‘investment’ to ‘prevent investors from interfering in a country’s right to set social and environmental standards.’[47] She maintained that certain principles should be embedded in such agreements – including the primacy of human rights before corporate rights; the recognition of the role of domestic courts; binding obligations on corporations; policy space for local economic development; and capital controls to stem financial speculation. Barlow also supported the efforts of Jerry Mander and John Cavanagh to develop an alternative model of trade and development.[48] In particular, she emphasized that economic development and trade activity and policy should enhance the core labour rights and human rights included in the Universal Declaration of Human Rights, and the two covenants ensuring economic, social, and cultural rights as well.’[49]
In the conclusion, Maude Barlow maintains that there is a need to ensure that trade protects water:
Given the threat to water from existing and proposed trade and investment agreements, it is urgent to remove all references to water as a service, good, or investment in all present and future treaties. Water is not like anything else on earth. There is no substitute for it, and we and the planet cannot survive without it. Water must not be a tradable good, service, or investment in any treaty between governments and corporations should have no right to stop domestic or international protection of water.[50]
Barlow maintains that ‘trade negotiations should take into account the effect on water of all trade activities’.[51] She concludes that ‘removing water as a tradable good, service, or investment from all trade and investment treaties would provide a better framework to protect water in international trade.’[52]
Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, plain packaging of tobacco products, and Indigenous intellectual property. His work is archived at SSRN Abstractsand Bepress Selected Works.
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[1] Maude Barlow and Tony Clarke, Blue Gold: The Fight to Stop the Corporate Theft of the World’s Water, New York and London: The New Press, 2002.
[2] Maude Barlow, Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water, New York: The New Press, 2007.
[3] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013.
[4] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 1.
[5] Ibid., 2.
[6] Ibid., 4.
[7] Ibid., 4.
[8] Ibid., 4-5.
[9] Ibid., 94.
[10] Philip Morris v. Australia, ‘Tobacco Plain Packaging – Investor-State Arbitration’, http://www.ag.gov.au/tobaccoplainpackaging
[11] Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12, http://www.italaw.com/cases/1654 and Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG v. Federal Republic of Germany, ICSID Case No. ARB/09/6 (formerly Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG v. The Federal Republic of Germany) http://www.italaw.com/cases/1148
[12] Azurix Corp. v. The Argentine Republic, ICSID Case No. ARB/01/12 http://www.italaw.com/cases/118
[13] Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17 (formerly Aguas Provinciales de Santa Fe S.A, Suez, Sociedad General de Aguas de Barcelona, S.A., and InterAguas Servicios Integrales del Agua, S.A.) http://www.italaw.com/cases/1048
[14] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 94-95.
[15] S.D. Myers, Inc. v. Government of Canada, UNCITRAL http://www.italaw.com/cases/969
[16] Lone Pine Resources Inc. v. The Government of Canada, UNCITRAL http://www.italaw.com/cases/1606
[17] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 215.
[18] Ibid., 215.
[19] Ibid., 215.
[20] AbitibiBowater Inc., v. Government of Canada http://www.italaw.com/cases/39
[21] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 215.
[22] Lauren Krugel, ‘TransCanada says no NAFTA Challenge to Keystone XL Delays – for Now’, The Canadian Press, CTV News, 2 May 2014, http://www.ctvnews.ca/business/transcanada-says-no-nafta-challenge-to-keystone-xl-delays-for-now-1.1803702#ixzz30uRJfDco
[23] Claudia Cattaneo, ‘Ottawa Mulls Keystone XL Challenge Under NAFTA After U.S. Dodges Decision Again’, Financial Post, 30 April 2014.
[24] Mark Lippman, ‘Will Free trade Fast-Track Keystone XL with Investor-State Dispute Settlements?’, Daily Kos, 14 January 2014, http://www.dailykos.com/story/2014/01/14/1269654/–CRUDE-PT-2-Will-Free-trade-fast-track-Keystone-XL-with-Investor-State-Dispute-Settlements#
[25] Maude Barlow and Jennifer Moore, ‘New Salvadoran Government Inherits Unfair Liability Rules’, The Huffington Post, 20 March 2014, http://www.huffingtonpost.ca/maude-barlow/new-salvadoran-government_b_5002534.html
[26] Maude Barlow, ‘Why in NAFTA Then?’, The Globe and Mail, 30 July 2014, http://www.theglobeandmail.com/globe-debate/letters/july-30-babies-by-design-and-other-letters-to-the-editor/article19838726/#dashboard/follows/
[27] Council of Canadians, ‘The Council of Canadians urges North American leaders to publish TPP Text, Democratize NAFTA-Plus Trade Talks’, Media Release, 19 February 2014, http://www.canadians.org/media/council-canadians-urges-north-american-leaders-publish-tpp-text-democratize-nafta-plus-trade
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Maude Barlow, ‘CETA: A Threat to Local Democracy’, The Huffington Post, 22 October 2011, http://www.huffingtonpost.ca/maude-barlow/ceta_b_1021782.html
[32] Ibid.
[33] Council of Canadians, ‘Germany Rejects CETA and TTIP; Council of Canadians Applauds Germany’s Decision’, Press Release, 26 July 2014, http://canadians.org/media/germany-rejects-ceta-and-ttip-council-canadians-applauds-germanys-decision
[34] Ibid.
[35] Ibid.
[36] Council of Canadians, ‘Submission to the Online Public Consultation on Investment Protection and Investor-to-State Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP)’, June 2014, http://www.tradejustice.ca/wp-content/uploads/2014/07/2014-06-EC-ISDS-consultation-CofC-submission.pdf
[37] Ibid.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Brett Patterson, ‘TISA Threatens to Lock In Water Privatization’, the Council of Canadians, 3 May 2014, http://www.canadians.org/blog/tisa-threatens-lock-water-privatization
[42] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 215.
[43] Ibid., 230.
[44] Ibid., 230.
[45] Ibid., 230.
[46] Thomas McDonagh, Unfair, Unsustainable, and Under the Radar: How Corporations Use Global Investment Rules to Undermine a Sustainable Future, San Francisco: Democracy Center, May 2013, http://democracyctr.org/new-report-unfair-unsustainable-and-under-the-radar/
[47] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 230.
[48] John Cavanagh and Jerry Mander (ed.), Alternatives to Economic Globalization, San Francisco: Berrett-Koehler, 2002, http://www.amazon.com/Alternatives-Economic-Globalization-Better-Possible/dp/1576753034
[49] Maude Barlow, Blue Future: Protecting Water for People and the Planet Forever, Toronto and New York: The New Press, 2013, 231.
[50] Ibid., 233.
[51] Ibid., 233.
[52] Ibid., 235.
