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The Law and Governance of Water Resources

The Law and Governance of Water Resources

The Challenge of Sustainability

New Horizons in Environmental and Energy Law series

Douglas Fisher

This path-breaking book focuses on the law and legal doctrine within the wider policy context of water resources and analyses the concept of sustainability.

Chapter 13: The Dynamics of Interstate Agreements

Douglas Fisher

Subjects: environment, environmental law, water, law - academic, environmental law, water law


INTRODUCTION (a) The Power to Enter into Agreements The rights and duties of states in relation to water resources derive not only from the general principles of international law but also – and in many cases almost totally – from the arrangements in interstate agreements that relate to the use and development of specific water resources in particular locations: in other words, the exercise by states of their right to enter into agreements with other states and in accordance with the fundamental doctrine that requires compliance with consensual obligations – pacta sunt servanda. States are free to enter into agreements with other states about the use and development of their water resources. But is this right constrained in any way? The question is: Whether transboundary water allocation is an unprincipled, ad hoc development based on political, economic, and authoritative configurations in a region, or whether equity considerations and the ‘no harm’ principle, embodied in international instruments, have played a role in the allocation of water resources.1 Whatever may be the answer to this question, it has been observed that the tendency in practice is to describe the ‘benefits and allocations as reasonable and equitable’.2 Assuming that the principle of equitable and reasonable utilisation is a guiding principle of international law in this context, it may reasonably be expected that it would be the principle to be observed by states when entering into negotiations and consequently agreements. It may theoretically be assumed that the states in question regard the detailed arrangements in the agreement...

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