Re-Imagining International Water Law?

Abstract

As climate change plays havoc with the hydrological cycle, exacerbating problems of freshwater scarcity in many regions worldwide, has the time come to rethink the foundations of international water law? Professor Stephen C. McCaffrey, who was one of the International Law Commission’s special rapporteurs on the Law of the Non-Navigational Use of International Watercourses, has called for freshwater resources to be shared equitably among all nations (and not just riparian states), having special regard for those that are hydrologically disadvantaged. The essence of McCaffrey’s argument is that freshwater resources should be treated as part of the common heritage of humankind, given that they are as vital to human existence as other natural resources that have been classified as global commons and subject to international legal regulation (however imperfect that regulation may be). However, to date, freshwater resources have been treated as fixtures in landscapes, belonging exclusively to those states in which they are found. While notions of ‘absolute territorial sovereignty’ and ‘absolutely territorial integrity’ have given way to more solidary notions of ‘equitable use’, and ‘community of interest’, international water law has been concerned primarily with resolving conflicts between states sharing access to the rivers, lakes or aquifers, and has been otherwise oblivious to broader questions of fair access by non-riparian states. This article reprises McCaffrey’s argument, assessing the prospects for a re-imagined international water law that takes seriously the freshwater needs of all states in an era of climate change and the growing international trade in ‘virtual water’.

Keywords: public international law, international water law, climate change, international rivers

JEL Classification: K10, K30, K32, K33