International law as tool for global water governance
International water law – especially where it concerns fair distribution and sustainability – will be able to provide powerful support to the post-2015 development agenda.
With the vital importance of freshwater to life on earth and the uneven distribution of water resources across the globe, there is no doubt that cooperation beyond state boundaries is necessary. International law is one of several tools for institutionalizing such cooperation and for shaping and implementing policy.
From a global perspective, water governance seems to be faced with two main challenges: fair distribution and sustainability. In recent years international law has increasingly started to address these challenges.
This said, a fundamentally communal interest (or as some would say, ‘a global public good’) such as water is not easily translated into legal terms. International law – famously lacking a world constitution or a central legislator – is a system traditionally based on freely agreed commitments by territorially sovereign states. Waterways have for a long time been viewed as part of sovereign territory, while groundwater (which accounts for 97% of the world’s available freshwater) is seen as a natural resource in the same legal category as oil and gas, over which the state exercises full control. The doctrine of ‘sovereignty over natural resources’ gained additional weight as a legal principle because it was hard fought over in the era of decolonization. A state was considered to have full control over the water resources on its territory, limited only by the rights to water usage of co-riperian states in their respective territories.
The territorial basis of international law thus poses something of an obstacle to the creation of a framework for worldwide safe access to freshwater. Moreover, a legal concept such as the ‘global commons’, which international law discourse has developed as part of the agenda for protecting areas such as the high seas or the Arctic regions, is in practice not applicable to the world’s freshwater resources as these resources cannot in the same way be physically localized in one spot on the globe and placed outside the spheres of respective states’ sovereignty.
In the past ten years this stalemate has to some extent been overcome by a genuine paradigm shift: from water use as a state’s right to water access as a human right. This is nothing less than a full shift in perspective away from the state to the human individual as a starting point for international water norms. In 2002, in an authoritative ‘General Comment’,1 the UN Committee for Economic Social and Cultural Rights instigated a process of interpreting and recognizing the human right to water. This is an intricate process, operating mostly through instruments not legally binding in a formal sense (such as the well-known 2010 UN General Assembly Resolution),2 but it has made the human right to water a central normative factor in international affairs, decision-making and economic cooperation. This becomes clear from different contexts – in the geopolitical map of potential water wars of the 21st century3 and also in the conspicuous reluctance of Canada to officially recognize the human right to water, as this country reportedly keeps a close watch on the unsustainable water use and growing problems of water scarcity in the west of the United States. At this point it is undecided whether the human rights approach or the sovereign resources approach to water will prevail in international law – most likely they will co-exist, which for various reasons would not be a bad thing.
This points to another contrast between international legal principles in relation to water: the obligation of sustainable water use on the one hand and the right to (economic) development on the other. Apart from questions of distribution this clash of interests and norms plays out in many disputed watershed areas, like the Nile basin.4 Sustainability considerations are increasingly winning out.
International water law thus paints a complex, fragmented landscape. It is important that it develops into an integrated legal framework so as to support the integrated approach towards water that is recognized today as necessary for the governance of water resources. However, international law provides clear normative, and also some procedural, tools. International water law – especially where it concerns fair distribution and sustainability – will be able to provide powerful support to the post-2015 development agenda.
- UN Doc E/C.12/2002/11
- UN Doc. A/RES/64/292
- See e.g. the the ‘Water Conflict Chronology Map’ of the Pacific Institute (worldwater.org)
- Salman M.A. Salman (2013): The Nile Basin Cooperative Framework Agreement: a peacefully unfolding African spring?, Water International, 38:1, 17-29