International Water Law: Recent Developments

Abstract

International water law is on the move. It is evolving with increasing importance despite its relative youth as a subject of public international law. The entry into force of the 1997 Watercourses Convention and the recent amendment of the 1992 Water Convention to open it up to non-UNECE States have given a boost to this field of international law. It is important and encouraging to see that the recently established universal norms have been nurturing each other and have inspired new agreements on individual river basins and aquifers. Further cooperation is still needed, however. International law is a recognized means for supporting and developing this.

Water is essential to life. The growing disposition of this precious natural resource in the last decades has urged for more international cooperation and for the development of international water law. In 2010, the United Nations General Assembly adopted Resolution 65/154 declaring 2013 the International Year of Water Cooperation. Previously, in 2003, the Assembly had proclaimed 2005-2015 to be the International Decade for Action, ‘Water for Life’. This is recognition by the international community of the importance of fresh water to human life and sustainable development.

International water law

International water law is on the move. It is evolving with increasing importance despite its relative youth as a subject of public international law. The entry into force of the Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, 21 May 1997) and the recent amendment of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992) to open it up to non-UNECE States have given a boost to this field of international law. For its part, the work of the International Law Commission (ILC), which led to the adoption of the 1997 UN Watercourses Convention, has contributed progressively by its 2008 Draft Articles on the Law of Transboundary Aquifers. As water scarcity and increasing environmental pollution will inevitably result in more disputes over international watercourses in the future and, at the extreme, in armed conflict, the further codification and progressive development of the law of international watercourses is essential to prevent this.

Recent developments

The above mentioned conventions and ILC Draft Articles are proof of the willingness of States and international organizations to develop water-related rules of a universal scope, which they had previously been very reluctant to do. For a long time, important legal and institutional developments had been taken place separately at the regional and bi-national levels. Nowadays, it is important and encouraging to see that the recently established universal norms have been nurturing each other and have inspired new agreements on individual river basins and aquifers. Further promotion, cooperation and coordination is still needed, however. International law is a recognized means for supporting and developing this.

Some studies on the Different Levels

The Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, 21 May 1997) has  entered into force on 17 August 2014. It is the only treaty governing shared freshwater resources that is of universal applicability. It is a framework convention which sets out principles and rules that may be applied and adjusted to suit the characteristics of particular international watercourses. Some key guiding principles set out in the document include: the equitable and reasonable utilization of international watercourses, the application of appropriate measures to prevent harm to other states sharing an international watercourse, and the principle of prior notification of planned measures. The Convention aids in preventing conflict by establishing a foundation of agreed-upon principles from which to begin negotiations if disputes arise. Similarly, it promotes cooperation as it requires the consideration of other countries' right to the fair and equitable use of international watercourses.

The entry into force of the Convention raises many questions. For example, what does the geographic distribution of member states indicate for the global success of the treaty? What will implementation of the Convention mean in practice? How will nations implement the Convention? And what does the entry into force of the Convention mean for the UNECE Water Convention, which is already in force in much of Europe? And, in addition, what will the Convention’s implementation mean for existing regional and local transboundary freshwater agreements? The International Water Law Project has hosted a series of blogs addressing many of these intriguing questions. Distinguished scholars and practitioners in international water law have offered their perspectives on the Convention’s imminent entry into force as well as on its future. Read more, here.

The Review of European, Comparative and International Environmental Law (RECIEL) has dedicated a Special Issue (Vol. 23, Issue 1, 2014) on the recent developments in the field of international water law. The topics covered in this special issue are: the relationship between the two major water conventions, regional approaches in Europe, Africa, China and South Asia, the law of transboundary aquifers and the similarities and differences between biodiversity and water managment. The contributions to this special issue attest to the densification of the international norms and rules which find application in the water area. Please, check our catalogue for these articles.

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Leading articles

  • Brown-Weiss, E., “The Evolution of International Water Law”, in: Recueil des Cours, Tome 331, Leiden, Martinus Nijhoff Publishers, 2007, pp. 163-404.
  • Caflisch, L.C., “The Law of International Watercourses: Achievements and Challenges”, in Boisson de Chazournes, L., C. Leb and M. Tignino (eds.), International Law and Freshwater: The Multiple Challenges, Cheltenham, Edward Elgar, 2013, pp. 24-34.
  • Caflisch, L.C., “The Law of International Waterways and its Sources”, in: Essays in Honour of Wang Tieya, Dordrecht, Nijhoff, 1994, pp. 115-129.
  • Fitzmaurice, M. and G. Loibl, “Current State of Development in the Law of International Watercourses”, in International Watercourses Law for the 21st Century: the Case of the River Ganges Basin, Aldershot, Ashgate, 2005, pp. 19-43.
  • Malla, K., “Current State of the Law of International Watercourses: Progress and Paradigm Shifts, 1815-2008″, Nordic Journal of International Law, 77 (2008), No. 4, pp. 461-508.
  • McCaffrey, S.C., “International Water Cooperation in the 21st Century: Recent Developments in the Law of International Watercourses”, in Review of European, Comparative and International Environmental Law, 23 (2014), No. 1, pp. 4-14.
  • McCaffrey, S.C., “The Evolution of the Law of International Watercourses”, Austrian Journal of Public and International Law, 45 (1993), No. 2, pp. 87-111.
  • McCaffrey, S.C., “Some Developments in the Law of International Watercourses”, in Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch, Leiden, Nijhoff, 2007, pp. 781-798.
  • Rieu-Clarke, A., “International Freshwater Law”, in S. Alam (et al.) (eds.), Routledge Handbook of International Environmental Law, London, Routledge, 2013, pp. 243-257.
  • Rieu-Clarke, A. and R. Kinna, “Can Two Global UN Water Conventions Effectively Co-Exist?: Making the Case for a “Package Approach” to Support Institutional Coordination”, in Review of European, Comparative and International Environmental Law, 23 (2014), No. 1, pp. 15-31.
  • Wouters, P., “The International Law of Watercourses: New Dimensions”, Collected Courses of the Xiamen Academy of International Law, Vol. 3, 2010, pp. 347-541.

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