4.3 Critical Assessment: Strengths and Shortcomings of International Water Law
41
4.3 Critical Assessment: Strengths and Shortcomings
of International Water Law
One might reasonably assume that the prominence of transboundary watercourses in
international relations has, thus far, brought about solid global legal and institutional
solutions to address the issue of shared water resources. Reality, however, suggests the
opposite. While the past two decades have usefully raised the profile of water policy
considerations, legal norms and institutions dedicated to water at global level remain
fragmented and are likely to remain so for the foreseeable future (Dellapenna et al.
2013). This applies particularly in the context of transboundary water governance
which still belongs to the politically most controversial subjects of international law
and politics.
Some recent developments, however, give hope to a significant improvement of
the present situation. These include the entry into force of the 1997 UN Watercourses
Convention in 2014 and the opening of the UNECE Water Convention in 2013 to
parties outside the UN Economic Commission for Europe. It is a legitimate expectation that these two instruments will solidify the legal and institutional bases of water
cooperation globally (Boisson de Chazournes 2013).
Despite the above positive developments international water law remains the subject of sharp criticism by legal professionals and water managers alike, prompting
one author to describe international water law to be still in the state of “conceptual
infancy” (Delli Priscoli and Wolf 2009). Indeed, as seen above, universal water law
remains mainly a collection of general and vague principles that “only offer suggestions and broad guidelines how [the conflicting interests of riparians] might be moderated and reconciled” (Dinar 2008). In fact, these solemn principles are formulated
with such generality that often inhibits their ultimate application (Giordano 2002).
As a result, researchers on the subject “found surprisingly little relationship between
the worlds of theory and practice” (Wolf 2000). For instance, the equitable and reasonable utilisation principle—jurists’ jolly joker when it comes to transboundary
water allocation—is hardly ever referred to in treaties concerned with water allocation. This, as Aaron Wolf concludes, is due to the lack of guidelines for quantifying
each country’s share of the water (Wolf 2000). Moreover, not only is international
water law ambiguous and contradictory, goes the verdict, it also fails to provide a
mechanism to enforce agreed-on principles (Delli Priscoli and Wolf 2009). This,
among others, is illustrated by the snail-pace of the entry into force of the 1997 UN
Watercourses Convention and the deliberate omission of institutional framework to
oversee its implementation. Several such shortcomings of transboundary international water law have been recognised by the craftsmen of the treaty framework too.
Steven McCaffrey, special rapporteur of the International Law Commission’s draft
articles leading to the UN Watercourses Convention, admits that the evolution of modern water law was strongly influenced by the climatic conditions of humid regions
where modern states initially took root, by the dominance of navigational issues and
the poor understanding of hydrology. This incomprehensive basis of development
has inevitably left major loopholes in the legal framework (McCaffrey 2001).
41
4.3 Critical Assessment: Strengths and Shortcomings
of International Water Law
One might reasonably assume that the prominence of transboundary watercourses in
international relations has, thus far, brought about solid global legal and institutional
solutions to address the issue of shared water resources. Reality, however, suggests the
opposite. While the past two decades have usefully raised the profile of water policy
considerations, legal norms and institutions dedicated to water at global level remain
fragmented and are likely to remain so for the foreseeable future (Dellapenna et al.
2013). This applies particularly in the context of transboundary water governance
which still belongs to the politically most controversial subjects of international law
and politics.
Some recent developments, however, give hope to a significant improvement of
the present situation. These include the entry into force of the 1997 UN Watercourses
Convention in 2014 and the opening of the UNECE Water Convention in 2013 to
parties outside the UN Economic Commission for Europe. It is a legitimate expectation that these two instruments will solidify the legal and institutional bases of water
cooperation globally (Boisson de Chazournes 2013).
Despite the above positive developments international water law remains the subject of sharp criticism by legal professionals and water managers alike, prompting
one author to describe international water law to be still in the state of “conceptual
infancy” (Delli Priscoli and Wolf 2009). Indeed, as seen above, universal water law
remains mainly a collection of general and vague principles that “only offer suggestions and broad guidelines how [the conflicting interests of riparians] might be moderated and reconciled” (Dinar 2008). In fact, these solemn principles are formulated
with such generality that often inhibits their ultimate application (Giordano 2002).
As a result, researchers on the subject “found surprisingly little relationship between
the worlds of theory and practice” (Wolf 2000). For instance, the equitable and reasonable utilisation principle—jurists’ jolly joker when it comes to transboundary
water allocation—is hardly ever referred to in treaties concerned with water allocation. This, as Aaron Wolf concludes, is due to the lack of guidelines for quantifying
each country’s share of the water (Wolf 2000). Moreover, not only is international
water law ambiguous and contradictory, goes the verdict, it also fails to provide a
mechanism to enforce agreed-on principles (Delli Priscoli and Wolf 2009). This,
among others, is illustrated by the snail-pace of the entry into force of the 1997 UN
Watercourses Convention and the deliberate omission of institutional framework to
oversee its implementation. Several such shortcomings of transboundary international water law have been recognised by the craftsmen of the treaty framework too.
Steven McCaffrey, special rapporteur of the International Law Commission’s draft
articles leading to the UN Watercourses Convention, admits that the evolution of modern water law was strongly influenced by the climatic conditions of humid regions
where modern states initially took root, by the dominance of navigational issues and
the poor understanding of hydrology. This incomprehensive basis of development
has inevitably left major loopholes in the legal framework (McCaffrey 2001).