Water is a unique resource because it is both local and global. Water flows over international and state borders, between conflict areas and through cities and industrial areas. Upstream withdrawals and inputs greatly affect downstream users, who may or may not have legal recourse to challenge inappropriate water activity of upstream users. This phenomenon is particularly tricky in international bodies of water which is why international agencies have often attempted to create a body of international water law, to little effect. Water law and policy, both transboundary and national, was covered in several WWF6 panel sessions.
International law is a body of law compiled from international agreements such as conventions and treaties, customary international law, general principles of law, and the teachings of the most highly qualified publicists. One of the biggest problems that arises with international law is its lack of enforcing power. In order to create successful laws, an entity needs to be enabled to enforce the laws and punish those who don’t follow them. This is why the United Nations established the International Court of Justice, which can adjudicate disputes of international or humanitarian law. The International Court of Justice, however, has no legally binding authority. Rather, it provides advisory opinions and acts as a mediation body to whomever submits their claims to the Court. Otherwise, in order for an International Law to become legally binding, the individual nations need to ratify the law and then enforce it within their own systems. Thus you can see why international law has several barriers to effectively relieving water issues.
Similarly to other international law areas, nations have convened for the purpose of crystallizing some international water law issues. According to Professor Dellaspenna from the University of Villanova Law School, there “have been several milestones of International Water Law.” For example:
- The Helsinki Rules: The International Law Association approved the Helsinki Rules in 1966. The Rules were based on the concept of “equitable and reasonable use” of waters. Although these rules are not enforceable, they were soon accepted as the definitive summary of customary international law for water.
- The UN Convention on Non-Navigational Uses of International Watercourses was approved by the General Assembly (1997) but has not been ratified by many countries.
- Berlin Rules on Watercourses: The Helsinki Rules were expanded into the Berlin Rules on Watercourses by the International Law Association in 2004. The Berlin Rules expanded the scope of waters to include all freshwater resources, not just drainage basins and aquifers, and includes some rules that integrate water’s surrounding environment.
Traditional rules of international water law, according to Professor Dellapenna, include: (1) only nations bordering a specific water source can have a legal claim upon that water source; and (2) nations must prevent significant harm to other nations. Aside from those traditions, individual nations argue over their rights to shared bodies of water. For example, nations fight over whether they have absolute sovereignty over a body of water if it originates in their nation, whether the river should flow naturally and undisturbed into the downstream nation, and whether all nations surrounding the water should have equal access and equal rights to the water.
A variety of international laws and conventions for water have fallen by the wayside during the drafting process because of the inability for such varied nations to come to an agreement about sensitive water use rights. Furthermore, they are not motivated to agree on unified water rights because they will not experience any repercussions from not participating in the unified law efforts. In the absence of enforceable international law, some countries have formed working groups and treaties to attempt to voluntarily address how to share waterways. Some examples include the Nile River Basin Initiative (Africa), the Great Lakes Commission (United States and Canada), and as Student Reporter Arjun Bhargava discusses, the 1960 Indus Water Treaty (Pakistan and India). Check back on StudentReporter.org for further discussion of the Nile River Basin Initiative and others.
Are you involved in a voluntary transboundary water management initiative? Have you attempted to litigate water-related issues? Leave your comments below.