A ‘dialogic’ approach, characterized by the involvement of various non-State actors in decision-making processes, is becoming increasingly prevalent in different areas of international law. Important parallels exist between transnational labour law, emphasizing social dialogue, with the dialogic approaches that have emerged in other fields of international law. The tripartism of the International Labour Organization (ILO), for example, is an important feature. But the dialogic approach is also evident in the public participation guarantees in international environmental law, which are also continually developed through the ILO’s Indigenous and Tribal Peoples Convention 1989 (No 169), the UN Declaration on the Rights of Indigenous Peoples (2007), the Rio Declaration on Environment and Development of 1992, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’), and the African Convention on the Conservation of Nature and Natural Resources adopted under the aegis of the African Union. International human rights law has similarly begun to require that indigenous populations be consulted when they are affected by works related to natural resources such as, for example, in the Inter-American Commission on Human Rights’ Belo Monte Dam case, the Endorois Welfare Council v Kenya case, through impact assessment procedures, and in Tătar v Romania. Social responsibility mechanisms, although they should not be perceived as convenient means of averting traditional obligations, have also promoted the approach, especially the Global Compact. The predominant challenge for dialogic approaches is in their legitimacy, which can be bolstered through attentiveness to the principles of inclusiveness, transparency, public participation and access to information.
Laurence Boisson de Chazournes
This chapter appraises the role that the International Court of Justice (ICJ) and the Permanent Court of International Justice (PCIJ) have played in developing international water law. Cases involving water that have come before these courts have had many different dimensions and touched upon a wide variety of issues, from those of a social or ecological nature to those with economic implications. This has required a versatile and consistent response. In this endeavour, these courts have had a significant hand in crafting and elaborating cornerstone principles across the international legal framework applicable to water, including but not limited to such concepts as community of interests, environmental harm, freedom of navigation and boundary delimitation. Both the ICJ and PCIJ have helped to map this emerging area of law, showing the way for other actors that have to navigate international disputes involving water.
Laurence Boisson de Chazournes and Rukia Baruti
Transparency trends in international human rights law and international investment law indicate a move towards convergence of procedure and substance. While procedurally, the rights of the public to information and participation under international human rights law have been long established, these are now increasingly emerging in the field of international investment law. Furthermore, acceptance of amicus curiae submissions by human rights bodies and investment arbitration tribunals is a clear manifestation of transparency in both international human rights law and international investment law. Substantively, public participation in governance-related decision-making processes under human rights law is gradually being mirrored under international investment law due to the shared public interest concern for greater transparency. While transparency in both fields is generally desirable, there is a need to ensure a balance between transparency and privacy to avoid jeopardising the integrity of decision-making processes.
Laurence Boisson de Chazournes and Christina Leb
In addition to access to water for drinking and direct human consumption, water generates a multitude of other benefits; it grows food, produces electricity, and provides transport routes and habitat, among others. This chapter explores the concept of benefit sharing applied by countries to transboundary water management to increase the benefits they can derive from shared water resources and its relationship to the principle of equitable and reasonable utilization, one of the corner-stone principles of international water law. Based on case studies and international practice, the chapter describes legal mechanisms and rules riparian States can use to increase and share benefits that can be derived from cross-border rivers, lakes and aquifers.
Laurence Boisson de Chazournes and Christina Leb
Expanding IPE analysis of benefit sharing arrangements to the area of international water law, this Chapter explains the determinants of international water law creation (law as explanandum) and traces the increasing influence of local and national political processes on the evolution of the international principles and norms of water law. Benefit sharing is the outcome of a process of realization that in a complex and interdependent world (i) there are fewer benefits that can be achieved by unilateral action than through cooperation; and (ii) that formulas to share the benefits of cooperative behavior need to be agreed upon to achieve equity that will spur continued cooperation. In international water law, the idea of benefit sharing is closely linked to the principle of equitable and reasonable utilization. Tracing the uptake of benefit sharing in treaty practice, the Chapter shows that the principle of equitable and reasonable use has evolved over time due to changes in the political economy, including in-country priorities concerning the use and management of transboundary water resources. Utilization for the economic means and ends of States has been complemented by management principles that increasingly take the interests of local stakeholders and individuals, as well as the environment, into account. This is the result of an increasingly deterministic role played by national actors in shaping the content of international water law.