Harmonizing international water law: current challenges and future prospects
| Autor | Ryan Stoa |
| Ocupação do Autor | Program Executive Offi cer at the Global Water for Sustainability Program, and a Fellow in Water Law and Policy at the Florida International University College of Law |
| Páginas | 357-372 |
HARMONIZING INTERNATIONAL WATER LAW: CURRENT CHALLENGES
AND FUTURE PROSPECTS
RYAN STOA1
Abstract
Development of an international legal regime governing water resources is, at
present, an uncoordinated and inconsistent practice. While the 1997 United
Nations Convention on the Law of Non-Navigational Uses of International
Watercourses made an attempt to codify international norms relating to water,
the Convention remains unrati ed fteen years later. As a result, successive
e orts to promote the development of international water law have been fa-
ced with the unenviable task of either reconciling the Convention’s status with
current understandings of customary international law (e.g., the 2004 Berlin
Rules on Water Resources) or progressing in spite of it (e.g., the 2008 Draft
Articles on the Law of Transboundary Aquifers). A harmonization of the va-
rious legal instruments — principally, the Watercourses Convention and the
Law of Transboundary Aquifers — would strengthen existing principles and
lay a foundation for the development of a more robust and synergistic regime.
Introduction
In June 2012, the United Nations Conference on Sustainable Development
(UNCSD) will convene to discuss and promote instruments for the implemen-
tation of sustainable development. e Conference Secretariat’s Brief 112 calls
for the implementation of measures to promote sustainable water management,
including water markets, tari s, payment for ecosystem services, and technolo-
gy transfers. While these measures deserve promotion, failing to recognize the
potential of international legal instruments as a means to achieving sustainable
water management is a missed opportunity. Ninety percent of the world’s po-
pulation lives in a country that contains transboundary surface waters, and two
1 Ryan B. Stoa is Program Executive O cer at the Global Water for Sustainability Program, and a Fellow
in Water Law and Policy at the Florida International University College of Law.
2 United Nations Conference on Sustainable Development Secretariat. “Brief 11: Water.”
358 INSTRUMENTOS JURÍDICOS PARA A IMPLEMENTAÇÃO DO DESENVOLVIMENTO SUSTENTÁVEL
billion people depend on groundwater for their survival.3 Meanwhile, most of
the world’s 5634 transboundary watercourses lack a cooperative management
framework.5 With water serving important needs for personal, agricultural, in-
dustrial, and commercial use, an international legal framework governing water
resources is needed to promote sustainable management of water resources.
At present, however, development of an international legal regime governing
water resources is an uncoordinated and inconsistent practice. While the 1997
United Nations Convention on the Law of Non-Navigational Uses of Interna-
tional Watercourses (hereinafter “Watercourses Convention” or “Convention”)
made an attempt to codify international norms relating to water, the Conven-
tion remains unrati ed fteen years later. As a result, successive e orts to promote
the development of international water law have been faced with the unenviable
task of either reconciling the Convention’s status with current understandings of
customary international law, or progressing in spite of it. e rst approach is
admirable yet incomplete. When the most signi cant international treaty on the
subject to date — the Watercourses Convention — espouses basic principles that,
taken together, have not entered into force, the notion that those principles re ect
customary international law is put into question, despite extensive state practice
suggesting otherwise. Proceeding in spite of the Convention’s status, as the 2008
Draft Articles on the Law of Transboundary Aquifers (hereinafter “Draft Articles”)
seem to do, is equally problematic. Both the Watercourses Convention and the
Draft Articles contain substantive rules that overlap and con ict with one another.
With both instruments laboring to become law, pitting what little legal tools exist
in the eld of international water law against each other is counter-productive.
Consequently, the delays inherent in international law-making, especially
on such a complex and vital subject as transboundary water resources, caution
against an overhaul of the current regime(s). Instead, I propose a harmonization
of the various legal instruments designed to strengthen existing principles and
lay a foundation for the development of a more robust and synergistic regime.
e rst step in this process is to enter the Watercourses Convention into force.
With twenty- ve parties to the Convention — and ten more needed for entry
into force — the Convention is well on its way towards binding treaty status.
While the Watercourses Convention is not ambitious with respect to its subs-
tantive rules (e.g., equitable use; prior noti cation), it does provide a framework
or baseline for international water governance. Next, the Draft Articles should
3 UN Water.Transboundary Waters: Sharing Bene ts, Sharing Responsibilities, 2008.
4 Ibid.
5 Ibid.
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