Water as a European shared public good: The legal status of a vital resource, and its sui generis community property regime

Published date01 April 2023
DOIhttp://doi.org/10.1177/1023263X231200961
AuthorAntonio Di Marco
Date01 April 2023
Water as a European shared
public good: The legal status of a
vital resource, and its sui generis
community property regime
Antonio Di Marco *
,
**
Abstract
Water is generally indicated as a public good that is essential for life. Within the Union water law,
this emphatic qualif‌ication appears as a generic political declaration linked to the uncertain recog-
nition of the right to water. By analysing the common private and public interests, this study
argues that the restricted territorial sovereigntys theory, widely accepted for transboundary
water resources, should be applied to all water resources. Water would be a shared European
public good, subject to a sui generis community of property regime limiting the sovereignty of
Member States over their water resources. By investigating the coherence of this community
of property regime with the principle of neutrality enshrined in Article 345 TFEU, the essay sug-
gests that the regulation of the water services would be drawn into the scope of the Treaties
because of their instrumental nature in guaranteeing the exercise of fundamental rights, the social
cohesion of the Union and the protection of a common public good. The idea is put forward that
water services would be an emblematic case of European public services, understood as a specif‌ic
development of the concept of service of general economic interest, instrumental to the imple-
mentation of the European model of society.
Keywords
Legal status of water, right to water, water services, service of general economic interest,
European Union water law, European public goods
*
4 rue de lArgonne, 67000 Strasbourg, France
**
Antonio DI MARCO is agent at the Council of Europe. The views expressed in this paper are those of the author and do
not represent the off‌icial position of the Council of Europe. The author would like to thank the anonymous referees for
their help both with the form and substance of this piece.
Corresponding author:
Antonio Di Marco, 4 rue de lArgonne, 67000 Strasbourg, France.
Email: antoniodimarco.unict@gmail.com
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(2) 170190
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231200961
maastrichtjournal.sagepub.com
1. Introduction: The social value of water and its uncertain legal status
Water is a limited natural resource and a public good fundamental for life and health
1
The Committee on Economic, Social and Cultural Rights (CESCR), the body of independent
experts tasked with monitoring the implementation of the International Covenant on Economic,
2
def‌ined water as a public goodin the f‌irst explicit inter-
national recognition of the right to water.
3
This qualif‌ication aimed to recognize the social
values of water,
4
understood as af‌low resource essential for life and ecosystem health: non-
substitutable and tightly bound to communities and ecosystems through the hydrological cycle.
5
As underlined by the Special Rapporteur of the United Nations (UN) on the human rights to safe
drinking water and sanitation, water is a public good that is essential for life, []; [it] is a
common good that has a public character owing to its essential functions for ecosystems and
social well-being in todays complex society.
6
This idea of water as a public good was reaff‌irmed
at the recent UN Water Conference 2023, which emphasized that water provides social, cultural,
environmental, economic and political values.
7
The def‌inition of water as a public goodhas triggered a broad and controversial debate. There is
no autonomous notion of the public good in international law; it has traditionally been referred to
national legal systems,
8
leading to different interpretations and divergent approaches to water man-
agement. According to the rights versus commodif‌icationand grassroots commonsapproaches,
the public nature of water would imply a community control that is incompatible with its commodi-
f‌ication through private sector participation (PSP) or other kinds of neoliberal water governance
reforms.
9
Other scholars have proposed a pragmatic rights approach, according to which com-
modif‌icationis theoretically compatible with the right to water and the public nature of water,
1. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15: The right to water (arts 11 and
12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11, para. 1.
2. UN General Assembly (UNGA), International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
Res. 2200A (XXI).
3. Prior to the historic CESCRs General Comment, a right to water had only been aff‌irmed at the regional level, as in the
case of the European Water Charter (Council of Europe CoE European Water Charter, Res(67)10, 1968).
4. P. Bond, The Right to the City and the Eco-Social Commoning of Water: Discursive and Political Lessons from South
Africa, in S. Farhana and A. Loftus (eds.), The Right to Water: Politics, Governance and Social Struggles (Routledge,
2013), p. 190; D. Roithmayr, Lessons from Mazibuko: Persistent Inequality and the Commons,3Constitutional
Court Review (2010), p. 317; M. Baer and A. Gerlak, Implementing the Human Right to Water and Sanitation: A
Study of Global and Local Discourses,36ThirdWorld Quarterly (2015), p. 1527.
5. K. Bakker, The Commonsversus the Commodity: Alter-globalization, Anti-privatization and the Human Right to
Water in the Global South,39Antipode(2007), p. 430, and in particular at 441.
6. UNGA, Plan and vision for the mandate from 2020 to 2023. Report of the Special Rapporteur on the human rights to
safe drinking water and sanitation, Pedro Arrojo Agudo, 5 July 2021, A/HRC/48/50, para. 9 and 10.
7. UN Water Conference, Interactive dialogue 3: Water for climate, resilience and environment source to sea, biodiver-
sity, climate, resilience and disaster risk reduction, 2224 March 2023, A/CONF.240/2023/6, para. 1.
8. J.Salmon (ed.), Dictionnairede droit international public(Bruylant, 2001), p. 126. On this pointsee also the international
arbitralaward, 26 September 1964, adoptedby Franco-Italian ConciliationCommission on 26 September1964, Différend
sur les biens immeubles appartenant à lordre de Saint-Mauriceet Saint Lazare,A.F.D.I., 1965, a t 323.
9. C. Clark, Of What Use Is a Deradicalized Human Right to Water?,17Human Rights Law Review (2017), p. 239;
O. Mirosa and L.M. Harris, Human Right to Water: Contemporary Challenges and Contours of a Global Debate,
44 Antipode (2012), p. 932; A. Davidson-Harden et al., The Geopolitics of the Water Justice Movement,11
Peace Conf‌lict & Development (2007), p. 5; K. Bakker, 39 Antipode (2007), p. 430.
Di Marco 171

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