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Preface to the Second Edition
This book is the result of a long process. The second edition updates and broadens its scope even further. Fresh water has for many years been a topic of profound interest to me in the course of my activities as an academic and a practitioner. Studying the treatment of fresh water in international law makes one aware of the complexity involved in the law’s protection and management of this natural resource, and of the way in which different bodies of science (earth sciences, hydrology, engineering, meteorology, agronomy, biology, and others) exert their influence on it. International law is an important tool in this respect but even its role cannot be defined in the singular. Indeed, various bodies of norms are applicable and have left their mark on the role and modalities of international law as regards fresh water: territorial and boundary regimes, economic law, environmental law, human rights, law of international organizations, etc. The real issue is the consistency and the coherence in the interpretation and application of these sets of norms. A variety of methods and techniques should give effect to them, allowing each to be applied in recognition of the vital nature of water for humans and the environment. The approach adopted in this book is to analyse the origin and scope of the various bodies of international norms, while emphasizing their interconnectedness and necessary adaptation to one another. This approach is accompanied by a detailed analysis of the practice of states and of international organizations, all the while taking into account the activities of the many non-state actors involved in the area of fresh water. The case law of numerous national and international courts and tribunals that have engaged with fresh water is also appraised.
My thinking has been stimulated by exchanges I have had with several generations of students at the University of Geneva, as well as at other universities in various parts of the world. My work as counsel and adviser to states, international organizations, and non-state actors, as well as an arbitrator, has also helped me to better understand the challenges attached to the protection and management of fresh water. Moreover, I have had the great pleasure of collaborating with doctoral students and researchers associated with the Platform for International Water Law,1 which was launched in 2009 at the Faculty of Law of the University of Geneva. I would, in particular, like to thank Mara Tignino, Reader at the University of Geneva’s Faculty of Law, for her work as Lead Legal Specialist of the Platform, which is one of the components of the Geneva Water Hub,2 and for her
1 http://www.unige.ch/droit/eau/index_en.html
2 https://www.genevawaterhub.org/.
collaboration in the many activities we have conducted together. I would also like to thank Christina Leb, Komlan Sangbana, and Brian McGarry for their research assistance when preparing the first edition of this book. Moreover, I express my deep appreciation to Jason Rudall for his great help with research on certain issues and work on the linguistic editing of the manuscript.
Finally, I am greatly indebted to all, including those mentioned above, who have accompanied me on the fascinating intellectual journey that was the writing of this book, now in its second edition.
Laurence Boisson de Chazournes
Geneva, September 2020
II.
A.
D.
E. Concluding remarks
4. Environmentalization of the Law Applicable to
I.
II. Linkages between fresh water and environmental
A. Pollution and its impact on
B. Biodiversity and fresh water
C.
D.
E.
between
III. Environmental protection and the law applicable to fresh water
A. The central role of principles
B. Water agreements concluded prior to the Stockholm Conference on the Human Environment
C. International agreements and instruments adopted after the Stockholm Conference on the Human Environment
D. The role of institutions in fresh water instruments
IV. The contribution of multilateral environmental agreements to the protection and management of
A.
C.
V.
II. Human needs and the law applicable to international
III. Emergence and recognition of a right to safe drinking water and sanitation
A. Political and legal mobilization
B. The effectiveness test in practice
IV. The contribution of human rights in the field of access to water and sanitation: The core components
V. The right to water and health, environmental, and cultural protection
A. The right to water and health
B. The right to water and environmental and cultural protection
VI.
II.
A.
B. Basin organizations and commissions as forums for
C. Basin organizations and commissions, dispute resolution, and the maintenance of international peace and security
D. The contribution of basin organizations and commissions to the
III.
A.
IV.
D.
A. Investor-state dispute settlement mechanisms: the ICSID and the NAFTA
B. Human rights procedures and water-related disputes
D. The contribution of compliance mechanisms
V. Dispute settlement and issues of interpretation and development in the law applicable to
List of Abbreviations
ABC Abyei Boundaries Commission
ACP African, Caribbean, and Pacific States
AsDB Asian Development Bank
BIT bilateral investment treaty
BOT build-operate-transfer contract
C&SF Central & Southern Florida Project
CARU Comisión Administradora del Río Uruguay (Administrative Commission for the River Uruguay)
CBD Convention on Biological Diversity
CCAI Climate Change and Adaptation Initiative
CCD Convention to Combat Desertification
CETA Comprehensive Economic and Trade Agreement
CFC Chlorofluorocarbon
CHH Common heritage of humankind
CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora
CJEU Court of Justice of the European Union
CMS Convention on Migratory Species of Wild Animals
COHRE Centre on Housing Rights and Evictions
COP Conference of the Parties
CPC central product classification
CPTPP Comprehensive and Progressive Agreement for Trans-Pacific Partnership
CPWC Co-operative Programme on Water and Climate
CTE Committee on Trade and Environment
DSU Dispute Settlement Understanding (WTO)
EBRD European Bank for Reconstruction and Development
ECCAS Economic Community of Central African States
ECHR European Convention on Human Rights
ECOSOC United Nations Economic and Social Council
ECtHR European Court of Human Rights
EEZ exclusive economic zone
EIA environmental impact assessment
ENMOD Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Convention
EU European Union
FAO Food and Agriculture Organization
FTA free trade agreement
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GEF Global Environment Facility
GLAAS UN Water Global Analysis and Assessment of Sanitation and Drinking-Water
HCFC Hydrochlorofluorocarbon
HGA host government agreement
HRC Human Rights Committee
HS harmonized system
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICPDR International Commission for the Protection of the Danube River
ICSID International Centre for Settlement of Investment Disputes
ICTY International Criminal Tribunal for the former Yugoslavia
IDB Inter-American Development Bank
IDI Institut de droit international
IFAD International Fund for Agricultural Development
IFC International Finance Corporation
IFIs international financial institutions
IHP International Hydrological Programme
IISD International Institute for Sustainable Development
IJC International Joint Commission
ILA International Law Association
ILC International Law Commission
INBO International Network of Basin Organizations
IPCC Intergovernmental Panel on Climate Change
IUCN International Union for Conservation of Nature
IWRM integrated water resources management
JNA Yugoslav Peoples’ Army
LHWP Lesotho Highlands Water Project
MAB Programme UNESCO’s Programme on Man and the Biosphere
MDGs Millennium Development Goals
MEA multilateral environmental agreement
MERCOSUR Southern Common Market
MPIA Multi-Party Interim Appeal Arrangement (WTO)
MTBE methyl tertiary butyl ether
NAFTA North American Free Trade Agreement
NBI Nile Basin Initiative
NGO non-governmental organization
OCHA United Nations Office for the Co-ordination of Humanitarian Affairs
ODA official development assistance
OECD Organisation for Economic Co-operation and Development
OHCHR United Nations Office of the High Commissioner for Human Rights
OMVS Organisation pour la mise en valeur du fleuve Sénégal
OP operational policy
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
POPs persistent organic pollutants
PPMs process and production methods
RGDIP Revue générale de droit international public
Rio+20 United Nations Conference on Sustainable Development (2012)
SAB Great Lakes Science Advisory Board
SADC Southern African Development Community
SDGs Sustainable Development Goals
SEA strategic environmental assessment
SFWMD South Florida Water Management District
SNSF Swiss National Science Foundation
SOGED Agence de gestion et d’exploitation du barrage de Diama
SOGEM Société de gestion de l’énergie de Manantali
SPLM/A Sudan People’s Liberation Movement/Army
SPS WTO Agreement on the Application of Sanitary and Phytosanitary Measures
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNFCCC United Nations Framework Convention on Climate Change
UNICEF United Nations Children’s Fund
UNIDO United Nations Industrial Development Organization
UNOPS United Nations Office for Project Services
UNTS United Nations Treaty Series
US United States
USACE US Army Corps of Engineers
USMCA United States–Mexico–Canada Agreement
VOC volatile organic compound
WASH water, sanitation, and hygiene strategy
WBIP Word Bank Inspection Panel
WHO World Health Organization
WMDP Water Management and Development Project
WQB Great Lakes Water Quality Board
WSSCC Water Supply and Sanitation Collaborative Council
WTO World Trade Organization
WWAP World Water Assessment Programme
WWF World Wide Fund for Nature
YBILC Yearbook of International Law Commission
Selected Cases*
PERMANENT COURT OF INTERNATIONAL JUSTICE
Case Relating to the Territorial Jurisdiction of the International Commission of the Oder River, PCIJ, Series A No 23 1929 20–21, 27, 70, 73n.18, 231, 266, 276, 315–16
Diversion of Water from the Meuse (Netherlands v. Belgium), PCIJ, Series A/B No 70 1937 .
.267–68
Jurisdiction of the European Commission of the Danube Between Galatz and Braila, Advisory Opinion, PCIJ, Series B No 14 1927 231, 268 The Oscar Chinn Case (Britain v. Belgium), PCIJ, Series A/B No 63 1947 21, 70, 73n.18, 75n.27, 268
INTERNATIONAL COURT OF JUSTICE
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, ICJ Reports 2018, 15 . . . . . 147–48, 181, 271, 321 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, 665 143n.46, 154–55, 181, 271, 317, 321 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports 2009, 213
Case concerning the audit of accounts between the Netherlands and France in application of the Protocol of 25 September 1991 Additional to the Convention for the Protection of the Rhine from Pollution by Chlorides of 3 December 1976 (2004) 25 RIAA 267 . . . 146n.63, 259n.3, 264n.38, 275–76, 315
Faber Case (Germany/Venezuela) (1903) 10 RIAA 466 .
71
Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, PCA Case No. 2011-01 30–31, 92, 184–85, 276–77
Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 December 2013, PCA Case No. 2011-01
Parkerings-Compagniet v. Lithuania, ICSID Case No. ARB/05/8, Award, 11 September 2007
Perenco Ecuador Ltd. v. The Republic of Ecuador and Empresa Estatal Petróleos del Eduador (Petroecuador), ICSID Case No. ARB/08/6, Interim Award, 11 August 2015 .
98
.181–82
Perenco Ecuador Ltd. v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Final Award, 27 September 2019 102n.210, 181–82, 321–22n.350
SAUR International v. Argentina, ICSID Case No. ARB/04/4, Decision on Jurisdiction and Liability, 6 June 2012 121n.295, 127–28, 211n.140, 285–86, 288
SD Myers v. Canada, NAFTA, Partial Award on the Merits, 13 November 2000 . . . . . .128–29
United Parcel Services Inc v. Canada, NAFTA/UNCITRAL, UNCT/02/1, Decision of the Tribunal on Petitions for Intervention and Participation as ‘Amicus Curiae’, 17 October 2001 292
Urbaser v. Argentina, ICSID Case No. ARB/07/26, Award, 8 December 2016 101–2, 121n.295, 124–26, 211n.140, 285–86, 288
Zhinvali Development Ltd v. Republic of Georgia, ICSID Case No. ARB/00/1, Award, 24 January 2003
WORLD TRADE ORGANIZATION DISPUTE SETTLEMENT BODY
Brazil—Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body, 3 December 2007, WT/DS332/AB/R
.134–35
China—Measures Related to the Exportation of Various Raw Materials, Report of the Appellate Body, 30 January 2012, WT/DS394/AB/R 111
Canada—Certain Measures Affecting the Renewable Energy Generation Sector, Report of the Appellate Body, 6 May 2013, WT/DS412/AB/R; WT/DS426/AB/R .
EC—Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body, 12 March 2001, WT/DS135/AB/R .
113n.260
. 111n.254, 112
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body, 11 December 2000, WT/DS161/AB/R, WT/DS169/AB/R 112
US—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, 12 October 1998, WT/DS58/AB/R . .
112–13, 320–21
US—Standards for Reformulated and Conventional Gasoline, Report of the Panel, 29 January 1996, WT/DS2/R 111n.254, 112–13
EUROPEAN COURT OF JUSTICE
Case 21/76 Handelskwekerij Bier v. Mines de Potasse d’Alsace SA [1976] ECR 1735 42n.157, 226n.213
Case C-149/14: Commission v. Hellenic Republic (Directive 91/676/EEC — protection of waters against pollution caused by nitrates from agricultural sources), Judgment of 23 April 2015 . .
. 279n.125, 280n.130
Case C-266/99 Commission of the European Communities v. French Republic [2001] ECR I-2000 281n.133
Case C-32/05 Commission of the European Communities v. Grand Duchy of Luxemburg [2006] ECR I-11349 281n.134
Case C-36/98 Spain v. Council of the European Union [2001] ECR I 00779 . .
.280–81
Case C-543/16: Commission v. Federal Republic of Germany (Directive 91/676/EEC — protection of waters against pollution caused by nitrates from agricultural sources), Judgment of 21 June 2018 279n.125, 280n.130
EUROPEAN COURT OF HUMAN RIGHTS
Dubetska and Others v. Ukraine, App. No. 30499/03 [2011] ECHR 256 .
Kolyadenko and Others v. Russia, App. Nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05 [2012] ECHR 338
Tătar v. Romania, App. No. 67021/01 [2009] ECHR 61. .
296
198, 214, 226–27, 228n.223, 260n.9, 296–97, 317
Zander v. Sweden, Series A No 279, [1993] 18 EHRR 175 296
INTER- AMERICAN COURT OF HUMAN RIGHTS
Comunidad indigena Sawhoyamaxa v. Paraguay, I/A Court H.R.
Series C No. 146, 29 March 2006 197n.57, 297–98
Comunidad indigena Yakye Axa v. Paraguay, I/A Court H.R. Series C No. 125, 17 June 2005 .
197n.57, 227n.220, 297–98
Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina I/A Court H.R. Series C No. 400, 6 February 2020 . . . . . . . . . . . . . . . 206–7, 227n.221, 299
Xákmok Kásek Indigenous Community v. Paraguay, I/A Court H.R.
Series C No. 214, 24 August 2010 197, 202–3, 297, 298
Saramaka People v. Suriname, I/A Court H.R. Series C No. 172, 28 November 2007 198, 227n.220, 298, 316–17
The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23, 15 November 2017 .
194–95, 206, 317
AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Case No 276/03, (2009) . . . . . . 198, 210–11, 301–2
Sudan Human Rights Organization and Centre on Housing and Evictions Rights v. Sudan, Case No 279/03-269/05, (2009) 203, 219–20, 302n.260
The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Case No 155-96, (2001) .
UNITED NATIONS HUMAN RIGHTS COMMITTEE
Apirana Mahuika et al. v. New Zealand, Comm. No. 547/1992, CCPR/C/70/D/547/1993, 17 October 2000
Ilmari Länsman et al. v. Finland, Comm. No. 511/1992, CCPR/C/52/D/511/1992, 26 October 1994 .
301
294
31
Portillo Cáceres v. Paraguay, Comm. No. 2751/2016, CCPR/C/126/D/2751/2016, 9 August 2019 193n.35, 321n.349
1
Introduction: Fresh Water and Its Features
I. Water challenges: a contextual overview
The protection and management of fresh water is high on the international agenda. The Sustainable Development Goals (SDGs), and particularly SDG 6, exemplify this.1 Badly designed policies and inadequate infrastructure mean that millions of people around the world die from a scarce water supply, sanitation, and hygiene.2 Moreover, a lack of fresh water and poor sanitation lead to food insecurity, lower standards of living, and hinder children’s education.3 Further still, water insecurity is a growing cause of conflict around the world and water shortages—exacerbated by climate change, urbanization, and population growth—can lead to grave tensions between countries.4
In this context, the emerging recognition of a right to water and sanitation (also referred to as the right to water) is a source of much promise. Endeavours in the management of international watercourses are also bearing fruit through the conclusion of agreements and the strengthening of basin commissions and organizations. Further still, the importance of cooperation in water governance to help maintain peace and security is gaining credence.5 However, despite the developments made in respect of access to water and water resources management, there remain significant challenges. Indeed, water is neither an inexhaustible resource nor a valueless good in economic terms. This is in spite of the fact that our planet’s surface is more than three-quarters covered by water. However, the largest portion
1 United Nations General Assembly Resolution A/RES/70/1, ‘ Transforming Our World: The 2030 Agenda for Sustainable Development’ (25 September 2015).
2 United Nations Sustainable Development Goals, ‘6: Clean Water and Sanitation’ (2020) [website], https://www.un.org/sustainabledevelopment/water-and-sanitation/.
3 Ibid
4 M. Zeitoun, N. Mirumachi, and J. Warner, Water Conflicts: Analysis for Transformation (Oxford University Press, 2020); J. Vivekananda, ‘Climate Change, Conflict and Crisis in Lake Chad’ 30(2) (2018) The European – Security and Defence Union 23; K. Eklöw and F. Krampe, ‘Climate Related Security Risks and Peacebuilding in Somalia’ SIPRI Policy Paper No 53 (October 2019); K. Conca and E. Weinthal (eds), The Oxford Handbook of Water Politics and Policy (Oxford University Press, 2018); World Economic Forum, The Global Risks Report 2019 (14th edn, WEF, 2019), 7.
5 See the Global High-level Panel on Water and Peace, which was established in 2015 and submitted its report and recommendations in September 2017: Report of the Global High-level Panel on Water and Peace, A Matter of Survival (Geneva Water Hub, 2017), https://www.genevawaterhub.org/sites/default/ files/atoms/files/a_matter_of_survival_www.pdf; for the actions taken on the basis of the recommendations, see Geneva Water Hub, ‘Global High-level Panel on Water and Peace – Secretariat’ [website], https://www.genevawaterhub.org/resource/global-high-level-panel-water-and-peace-secretariat-0
of accessible water—around 98% of it6 is neither suitable for human consumption nor fit for use in agricultural or industrial activities as a result of its salinity or frozen state. Fresh water resources, ie waters in which the salt content is lower than 3 grams per litre, represent only 2.53% of overall global water resources. Over two-thirds of these fresh water resources (68.7%) are frozen in the polar ice caps, continental ice sheets, and alpine glaciers. Liquid fresh water is primarily found underground (30.1%), whereas surface water in lakes and rivers (0.26%) and atmospheric water content (0.04%) represent only a small volume of overall fresh water resources.7
Additionally, while the size of the world’s population has tripled since the early twentieth century, water consumption has increased by a factor of six. Attempts to increase available water resources through reconstitution processes (particularly in groundwater storages) have not kept pace with their rate of exploitation. In this light, water can be viewed as something of a non-renewable resource.
These considerations prompt reflection on the apportionment of water resources among their different uses, but also—even more acutely—on the allocation of a resource whose geographically uneven distribution8 is a source of tension and conflict in more than one region of the world.9 In that respect, hurdles stem from inadequate access to water in nature, demand variation according to different needs, climate variability, and, finally, socio-economic as well as cultural differences. A factor of particular concern is the distribution of water resources among its uses. Water cannot be managed for a single use as it is subject to multiple uses. At present, land irrigation alone withdraws almost 70% of the available water stock, a figure in part in line with demographic trends. Second, industrial uses account for almost 20%, which is likely to grow in the coming years, whereas energy production, navigation, human uses, and leisure account for the remaining demands on water stock.10
6 World Water Assessment Programme, ‘Water for People, Water for Life’, The United Nations World Water Development Report [online report], 68, http://unesdoc.unesco.org/images/0012/001297/ 129726e.pdf
7 All statistics in this paragraph from ‘Water for People, Water for Life’, Ibid
8 Thus, some areas would have a greater quantity of water relative to another. See ‘Total Renewable Freshwater Supply by Country’ (2013 update) in Pacific Institute, The World’s Water: Volumes 7–8 (Island Press, 2013). Electronic version of data table available at http://worldwater.org/wp-content/uploads/2013/07/data_table_1_total_renewable_freshwater_supply_by_country.pdf
9 See, eg, M. Zeitoun, N. Mirumachi, and J. Warner, Water Conflicts: Analysis of Transformation (Oxford University Press, 2020); A. Swain, Managing Water Conflict: Asia, Africa and the Middle East (Routledge, 2013); ‘Water for Peace in the Middle East and Southern Africa’ in Green Cross International, World Water Vision (Green Cross International, 2000); H. Solomon and A. Turton (eds), Water Wars: Enduring Myth or Impending Reality (Series no 2) (Africa Dialogue Monograph, 2000); T. Dieu Nguyen, The Mekong River and the Struggle for Indochina: Water, War and Peace (Praeger, 1999); N. Beschorner, Water and Instability in the Middle East: An Analysis of Environmental, Economic and Political Factors Influencing Water Management and Water Disputes in the Jordan and Nile Basins and Tigris-Euphrates Region (Routledge, 2005).
10 For more details on these figures, see eg The United Nations World Water Development Report 2020 (UN Water and UNESCO, 2020). Overall, it is reported that water use has increased by a factor of six over the last century, and continues to grow each year by about 1%.
Sources of additional concern are the squandering and degradation of water resources, phenomena that are primarily due to a lack of wastewater and sanitation systems, but also the use of polluting substances.11 Moreover, it is important to mention the progressive salinization of drainage basins and cultivated lands, as well as the contamination and overexploitation of groundwaters. Almost half of European and North American rivers and lakes are so polluted that certain species belonging to those ecosystems are in danger of extinction.12
In terms of water access, notwithstanding recent achievements, 29% of the global population still do not have access to safely managed drinking water services, and 55% of the world’s population remain without access to safely managed sanitation services.13 Sanitation and drinking water are, however, essential to human life, dignity, and development. Moreover, many societies ascribe to water a cultural function and, at times, even a mystical character. Further still, another trend warrants consideration: the growing influence exerted at the international level by a number of new actors, ranging from consumers’ associations to nongovernmental organizations and indigenous populations.14 Such a trend, in fact, calls for the elaboration of regulatory solutions that satisfy the expectations and claims advanced by these multiple stakeholders.
These remarks illustrate some of the reasons why building a global system of regulation for water resources is an intricate and difficult task, but also one that is not impossible. Overcoming such difficulties is of primordial importance, especially in respect of international watercourses, the problems of which cannot but have an impact at the international level. For many states, international watercourses constitute, in fact, valuable resources and a means of communication fundamental for the very survival of their populations.
Around 280 transboundary watercourses serve 40% of the world’s population. Among these, 180 run through two states, while the remaining 100 cross three or more states. In the African continent alone there are sixty international watercourses, eleven of which are shared among four or more riparian states; eleven states share the Nile River and nine share the Congo River. On the American continent, the Amazon River is shared between nine countries, whereas six Asian states share the Mekong River. The Danube River, for its part, has a hydrographic basin that includes no less than seventeen states.
11 Poor water quality is not the only problem related to water supply and sanitation systems. See UNICEF and WHO, Progress on Household Drinking Water, Sanitation and Hygiene: Special Focus on Inequalities 2000-2017 (UNICEF/WHO, 2019), https://data.unicef.org/resources/progress-drinkingwater-sanitation-hygiene-2019/
12 WWF, World’s Top 10 Rivers at Risk [online report], http://assets.wwf.org.uk/downloads/ worldstop10riversatrisk.pdf
13 See UNICEF and WHO, Progress on Drinking Water and Sanitation 2000 – 2017: Special Focus on Inequalities (UNICEF/WHO, June 2019) [electronic report], https://www.unicef.org/reports/ progress-on-drinking-water-sanitation-and-hygiene-2019
14 See, eg, S. Jentoft, H. Minde, and R. Nilsen (eds), Resources Management and Global Rights (Eburon, 2003).
II. The finite character of water
A fundamental characteristic of the hydrological cycle15 is that it has no beginning and no end; hence, the finite character of water on earth. This character can be understood in two ways depending on whether we want to emphasize the amount of available water in the hydrosphere or the amount of available fresh water. In the first case, the finite character describes the fact that there is a fixed amount of water on earth. Estimates consider that there are approximately 1.386 billion km3 of water on the planet and in its atmosphere.16 This quantity of water is the total amount available to us. No human action or any natural change can alter this amount. It has remained the same for millions of years and is moving around in a continuous cycle, changing from one physical state to another (solid, liquid, or vapour/gas), although anthropogenic influences have recently been shown to alter the balance in the hydrological cycle.17
In the second case, the finite character is reflected by the distribution and transfer of water between the different water reservoirs that exist. The major reservoirs of water include the atmosphere, oceans, rivers, lakes, soils, glaciers, snowfields, and groundwater.18 Water continually moves from one reservoir to another
15 The hydrologist defines the hydrologic cycle as a conceptual model that describes the storage and movement of water between the biosphere, atmosphere, lithosphere, and hydrosphere. Oceans contain almost 96.5% of water in the cycle. But this water is not directly useable by humans as a result of its salinity. The sun, which drives the water cycle, heats the water of the oceans. Some of the heated water evaporates into the air and rises into the sky. When air is saturated with water vapour, the water vapour condenses into droplets of water, forming clouds. When the droplets gain enough mass, they fall as precipitation and 91% of evaporated water falls back into the oceans. The remaining 9% of evaporated water is transported by the wind over the continents and falls to the ground as snow or rain. The atmospheric water stored constitutes 0.04% of the world’s fresh water resources. At this level, various trends may be observed. In glacial systems, precipitation becomes ice mass, with glaciers and snowfields representing almost 68.7% of the planet’s fresh water. This ice mass can sublimate (sublimation is the result of ice transforming directly from a solid to water vapour without passing through a liquid state) and form again as water vapour, or can flow on the surface to feed rivers and streams. In vegetation systems, three processes occur simultaneously. Some of the water that falls as rain does not flow directly as surface runoff into a river but seeps into the ground. Part of this seepage water is then again drawn up by plants, which release it back into the atmosphere through the process of evapotranspiration. In areas without vegetation, eg deserts, this interception does not occur. Water that infiltrates the ground can either flow into rivers and streams or refill aquifers. Groundwater, a resource that often remains difficult to access, represents almost 30.1% of fresh water. If precipitation occurs faster than it can infiltrate the ground, it becomes runoff. Runoff remains on the surface and flows into streams, lakes, and eventually the oceans. Streams and lakes represent 0.26% of fresh water resources. Most water ultimately finds its way back into the oceans by way of precipitation, overland flow, stream flow, or groundwater flow. See World Water Assessment Programme, ‘Water for People, Water for Life’ and J. Hubbart et al, ‘Hydrologic Cycle’ in C. Cleveland (ed), Encyclopedia of Earth (Environmental Information Coalition, National Council for Science and the Environment, 2011). Electronic version available at https://editors.eol.org/eoearth/ wiki/Hydrologic_cycle
16 See United States Geological Survey, ‘How Much Water Is There on Earth?’ [website], https:// www.usgs.gov/special-topic/water-science-school/science/how-much-water-there-earth?qt-science_ center_objects=0#qt-science_center_objects
17 D. Koutsoyiannis, ‘Revisiting the Global Hydrological Cycle: Is It Intensifying?’, Hydrol. Earth Syst. Sci. Discuss., 20 March 2020, https://doi.org/10.5194/hess-2020-120
18 G. Stephens et al, ‘Earth’s Water Reservoirs in a Changing Climate’ (2020) Proceedings of the Royal Society A 476.
by way of evaporation, evapotranspiration, condensation, precipitation, runoff, interception, infiltration, melting, and groundwater flow.19 This natural process makes fresh water available for human consumption. However, given that a slim minority of the Earth’s water resources comprise accessible fresh water, the capacity of those reservoirs is limited.
Fresh water that is readily accessible for human uses is found in lakes and streams and in underground sources. Any analysis of water resources requires that the interconnection between all sources of water be taken into consideration.
In this context, global warming is an important factor to take into account. It will have an impact on hydrological patterns and it may cause an increase in regional reservoir capacity. A typical example is the melting of glaciers that would increase the amount of fresh water available in some watercourses and could contribute to a rise in the sea level.20 The shifting precipitation pattern and the amplification of trends in surface runoff are other impacts that could contribute to the modification of water availability and water use.21 In terms of climate change effects that are detrimental to fresh water access, many of the world’s most water-deprived areas will become even more water deprived. Moreover, water flows will be more susceptible to extreme weather events.22 The development of certain technologies, such as the desalination of seawater and wastewater collection and treatment and recycling processes, can increase the amount of fresh water available to humans. Despite the contribution—albeit limited—that these technologies can make to this endeavour, there are nevertheless economic and environmental considerations and concerns attached to some of their use.
This hydrological interconnection also exposes the influence that human activity has over different parts of water systems.23 For example, a toxic substance introduced upstream in a watercourse is carried downstream by the flowing water and finds its way into the sea. In a similar way, air pollution can generate toxic rain. This polluted rainwater can seep into the ground or flow into streams and lakes, contaminating drinking water wells located far from the polluting source.
More broadly, water highlights the extent of human interdependence. This interdependence can be seen through fresh water uses, notably with the claim of a right to water which emanates in particular from the rights to an adequate standard of
19 Ibid
20 Koutsoyiannis, ‘Revisiting the Global Hydrological Cycle: Is It Intensifying?’, 22.
21 Intergovernmental Panel on Climate Change, Global Warming of 1.5°C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (IPCC, 2018), B.1.
22 UN News, ‘ “Count Every Drop, Every Drop Counts”: UN Weather Agency Calls for Better Water Data on World Meteorological Day’ [website], 23 March 2020, https://news.un.org/en/story/2020/03/ 1059922.
23 S. McCaffrey, The Law of International Watercourses (3rd edn, Oxford University Press, 2019), 52.
living and highest attainable standard of health,24 as well as the various needs and claims as expressed in the SDGs.
III. Water opportunities: a disciplinary inquiry
In short, without water, life could not exist; livelihoods depend on ecosystems in which water is a crucial component.25 It is in this context that fresh water is a fundamentally important area of inquiry. Our increasing interactions on an international level, as well as our dependency on other states in respect of water issues, bring the need for effective multilateral water governance into sharp focus. In order to propose effective solutions to the challenges that water presents, it is necessary to understand that the nature of water governance and use is multifaceted and requires an analysis that takes the various interests involved into account.
The present book analyses fresh water through a variety of lenses, be they regulatory trends, economic features, the environment, human rights, international institutions, and dispute settlement. In so doing, the challenges involved in and the strains and opportunities for the management and use of fresh water are exposed, while looking at these various dimensions from an integrated perspective.
Water has always been a vehicle for economic activities and uses, not least navigation, irrigation, power generation, and water supply. In more recent years, water has emerged in investment disputes and in international trade debates. This has both clarified and complicated the economic aspects of water governance, highlighting also the specific status of water.
Water has moreover become a central feature in environmental protection. A number of principles relating to the management, protection, and use of water have emerged in international conventions dealing with environmental protection. This means that today a variety of obligations are attached to the use of fresh water. As a result, the number of institutional mechanisms dealing with water issues has also increased.
Similarly, a shift towards human needs is also evident in the broader area of water governance. Along with public participation in fresh water governance, one can point to the emergence and consolidation of a right to water. Issues related to health, the environment, and culture are explored in the context of human needs, rights, and entitlements, as well as the relatively undeveloped area of water protection in times of armed conflict.
24 See United Nations Committee on Economic, Social and Cultural Rights, General Comment No 15 (2002), The Right to Water (Arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, para 3.
25 UN Water, Climate Change and Water: UN Water Policy Brief (UN Water, September 2019), 7.
Institutionalization trends in fresh water governance are also noticeable. The institutions involved in fresh water management and protection are now varied in nature. Many of these institutions, particularly basin organizations and commissions, are intended to strengthen cooperation among riparian countries. Furthermore, the matters over which these organizations have competence have broadened significantly, for example with respect to the protection of the environment.26 Novel types of institutions have been established with the aim of improving water governance.
A range of institutions with diplomatic, judicial, and quasi-judicial powers contribute to the protection and management of fresh water. The broad acceptance of the role of dispute settlement based on the rule of law is a noticeable trend in this area. This has led, in part, to the increased participation of non-state actors in water disputes and dispute settlement more generally. This has also contributed to the clarification and strengthening of applicable norms and principles.
26 See, eg, Rhine 2040—The Rhine and Its Catchment: Sustainably Managed and Climate-resilient, 16th Rhine Ministerial Conference, 13 February 2020, https://www.iksr.org/fileadmin/user_upload/ DKDM/Dokumente/Sonstiges/EN/ot_En_Rhine_2040.pdf. See also International Commission for the Protection of the Danube River, The Danube River Basin District Management Plan – Part A (ICPDR, 2015), 79.
