EXCERPT | The Humanization of International Water Law

EXCERPT | The Humanization of International Water Law

By Paulo Canelas de Castro
Faculty of Law, University of Macau, Macau, China

EXCERPT | The Humanization of International Water Law

Image Attribute: Photo by Angus, Flickr Creative Commons)

International Water Law has been witnessing a move towards inclusion of more legal personae within the remit of participating legal subjects.This move concerns its traditional legal subjects, first: the States, the riparian States. Increasingly, the new international water law advocates that all those States, riparian to a particular shared watercourse, participate in the corresponding legal discipline, thus matching at this level an effort at ensuring that the said legal discipline corresponds to reality, and that it therefore may prove more efficient. Moreover, in a few instances, international law equally calls on the participation of coastal States adjacent to the riparian ones, in a legal development which again evidences an attention to natural reality and the real dynamics of impacts.

Secondly, the newer international water law equally concerns intergovernmental organizations and institutions of very different structures and functions. Their establishment or revival  reflects the perceived need of States to enhance cooperation to manage shared water resources over several territories. Their existence facilitates the recurring dialogue between the riparian States as to the activities that each of them purports to promote within its jurisdiction, particularly with regard to the sharing of rights and benefits deriving from the development of the waters as well as the prevention, reduction and control of risks of damages. They especially allow for an institutional process of communication, made of different procedural acts which permit the assessment of the effects of planned or existing measures or projects. Finally, they also enable the carrying out of joint activities.

Most noticeably, different legal instruments recommend that river/watercourse commissions be set up or that their experience is used in the daily effort of implementing but also developing primary regimes. In some cases, international organizations or international commissions are equally called to complement the action of the States (by providing financial and technical assistance, or working as instances for the prevention and settlement of disputes.

Additionally, these organisations and institutions are sometimes also the platform for other non-governmental actors to intervene; like environmental, human rights’ or governance NGOs, as well as epistemic communities, companies and individuals. All of them, thus thereby find their way to voice their concerns, grievances, interests, information, expertise. Simultaneously, they obtain some legal status in the processes of decision-making or adjudicating the manifold issues of water management.

The whole movement reaches its climax once international law engages into its humanization―firstly, by recognizing procedural rights of access to information, participation in decision-making and in administrative decisions relating to the environment as well as the judicial appeal against such decisions, and rights of participation in impact assessments as well as in the aforementioned institutional water platforms. The 1998 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, in the United Nations Economic Commission for Europe (UNECE) universe, stands out in such context as a prominent illustration.

The humanization of international water law is evidenced then, in the adoption of a human right to water and sanitation, which corresponds to the satisfaction of the most basic human needs and overcomes a blatant lacuna of the International Bill of Human Rights. Initiated with General Comment n˚ 15 of the Economic and Social Council , the process of consolidation of such double right gained momentum in 2010, by the adoption of corresponding resolutions by the General Assembly of the United Nations and the Human Rights Council. These documents mainly anchor such right of multifaceted content in the remit of economic, social and cultural rights―a qualification, which renders these rights, ones of a progressive realization. Be as it may, it equally implies a certain number of consequential obligations for the States, namely obligations to respect, protect and fulfill. Amongst other duties, they call for the States’ supplementary regulatory working. It is equally certain that the human right to water does not hinder the State to perceive payment for the services rendered. This applies, moreover, to not only the State but also other actors, which may, in particular, intervene in the provision of water services or waste treatment services. This intervention seems justifiable: not only because the right is neutral as to the economic model adopted by the State as to such vital public services, but also because momentous investments seem indeed to be in order for rendering this proclaimed right a true reality. In any event, the interface between this right and a kind of water management more economically-driven is, doubtlessly, one of the areas where international water law may need further development and clarification..

Publication Details:

Beijing Law Review Vol.06 No.04(2015), Article ID:61741,11 pages  10.4236/blr.2015.64025

Copyright © 2015 by author and Scientific Research Publishing Inc.

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