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In view of increasing globalization, the ongoing promotion of foreign direct investment and the lack of comparative literature on how water property rights are changing in the global South, this article asks: How have property rights in water evolved through investor-State contracts on mineral, petroleum and land issues in Africa and Asia? We analyse 80 publicly available contracts-22 minerals, 40 petroleum and 18 land-of 34 African and 19 Asian countries. We find that: (i) in addition to a State's water law, water allocation is also implicitly governed by contracts and international investment treaties; (ii) States de facto privatize water by allocating quasi-property rights through the granting of contracts to foreign international investors; (iii) such waters exploited by virtue of contracts reduce the ability of States to regulate water during the term of the contract especially as investors' water use is protected by bilateral investment treaties and potential compensation claims; and (iv) the need of the State to increasingly adaptively govern water as the impacts of climate change on water become more noticeable will be challenged by the long-term quasi property rights granted by States to investors in such contracts. | INTRODUCTIONIn most countries, resources such as minerals, petroleum and water are generally State-controlled. To exploit these resources, especially technology-poor developing countries often sign contracts with foreign companies-'investor-State' contracts. With globalization 1 and neoliberal capitalism, 2 investor-State contracts have increased tremendously. These contracts often include water, as it is essential in all industrial and agricultural undertakings. 3 Water rights can be created (indirectly) through contracts (e.g., supply, investment and service contracts) between an (inter)national actor and a State, 4 as the 'rights to the use of water can … be transferred by the state via permit and subsequent state delivery contracts to end users'. 5 These contracts 1 Globalization refers to the 'significant increase in the movement of goods, services, capital, and money across national boundaries, resulting in a capitalism that is more globally integrated than before, including the creation of global production and distribution chains'; see DM Kotz, The Rise and Fall of Neoliberal Capitalism (Harvard University Press 2015) 35. 2 The dominance of neoliberal capitalism postulates a 'form in which market relations and forces predominate, [which] has promoted the increasing power of capital over labour'; ibid 44. 3 J Gupta and HJ Bosch, 'Changing "Ownership" in Water Law: Comparative Experiences in the Developing World' in JW Dellapenna and J Gupta (eds), Water Law (Edward Elgar 2021) 315. 4 L Cotula, 'Land deals in Africa: What is in the contracts?' (International Institute for Environment and Development 2011); S Hodgson, 'Exploring the Concept of Water Tenure' (Food and Agriculture Organization of the United Nations (FAO) 2016); A Scott and G Coustalin, 'The Evolution of Water Rights' ...

Through history, property rights in water have been treated differently worldwide. Given the current global trend promoting water allocation through permits, and the lack of comparative literature on how property rights are changing in the global South, this article asks: How have property rights in water evolved including through granting water use permits in Anglophone and Francophone Africa and Asia? We analyse 220 policies and laws of 60 Anglophone/Francophone African and Asian countries. We conclude that (i) these States have put water in the public domain; (ii) this implies expropriating existing customary, private and riparian water rights, and States are struggling to do this democratically; (iii) having taken ‘control’ over water, these States then use, among others, permits to allocate water and (iv) the rules of permit allocation may undermine States’ ability to reallocate water if the need arises.

The United Nations (UN) 1977 Water Conference at Mar del Plata (MDP) sought to avoid a water crisis of global dimensions by 2000 and to ensure an adequate supply of good quality water to meet socio-economic needs. While much has been achieved, the MDP goals are not yet realised. Unsafe, or perceived to be unsafe, drinking water still affects at least 2 billion people, unsafe sanitation affects more than 4 billion people, and billions face severe water scarcity for at least part of the year. At the