Innovation and International Commons: The Case of Desalination Under International Law

Abstract:     
Disputes over international commons, including rivers shared across borders, have the potential to boil over into serious conflict. International commons can also be the locus of cooperative endeavors between nations. Technological innovation has the potential to aggravate conflict or facilitate cooperation in international commons. Whether innovation leads to conflict or cooperation may depend on the application of international law, including international environmental law, trade and investment law, and human rights law. The current legal model governing international freshwater commons fails to adequately respond to and encourage technological innovation, as illustrated by the use of desalination in regions where nations share freshwater. This current model – called “rights-based adversarial management (“RAM”) – fails because it lacks flexibility to adapt to innovation and can discourage responsible innovation. This Article proposes a new approach to governing international freshwater commons – called the “collaborative and adaptive management” (“CAM”) model. The CAM model brings together concepts from “new governance” literature and the economic analysis of the regulation of public goods. This Article also hypothesizes that the CAM model will be an improvement over other approaches governing different international commons because of its capacity to respond to, and appropriately incentivize, technological innovation.

Number of Pages in PDF File: 60

Keywords: international, water, law, desalination, commons, innovation

Accepted Paper Series