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  • Series: Research Handbooks in Environmental Law series x
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Edited by Mara Tignino and Christian Bréthaut

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Stéphanie Kpenou

Access to water and environmental protection represent major challenges of the twenty-first century. Population growth, urbanization and industrialization have triggered a significant increase of water demand and fresh water resources are pushed to their limits in many part of the world. This crisis has raised challenges that have not only local or regional scale but also a global dimension. Fresh water resources have always been understood as belonging to a State or a group of States, and not to the international community as a whole. Fresh water management and protection have so far been undertaken in a context of geographical proximity such as in the case of river basins. The new challenges generated by the global freshwater crisis call for an evolution of international water law. Common Concern and Common Heritage regimes induce an idea of cooperation between States, intergenerational solidarity and help transcend territoriality. The present chapter analyses the applicability of the Common Concern and Common Heritage regimes to fresh water resources.

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Badr Zerhdoud

The 1992 International Conference on Water and the Environment issued the Dublin Principles. For the very first time, water was not only considered as a public good essential for human survival but also as a resource collected in the nature and involving human action, through infrastructures and capital. This fact entails the inevitable issue of pricing and market mechanisms. Moreover, a 1993 World Bank report (‘Adjustment of integrated water resources’) went further by calling for a substantial increase of water prices and the privatization of the management in water services in the developing countries. The identified phenomenon combined with the explosion of the number of bilateral investment treaties (BITs) significantly boosted the number of cases before the International Centre for Settlement of Investment Disputes (ICSID) related to water concessions. Accordingly, this paper will address the economic management of water and particularly the water concession contracts through investor-State arbitration.

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Makane Moïse Mbengue and Nwamaka Odili

Early treaties and instruments relating to fresh water emphasised navigation and economic uses of water, without attention to environmental considerations. For example, the Act of Vienna sustained the principle of free navigation of rivers and canals in Europe without providing for the protection of the river basins involved. Fresh water was considered only as a major means of commercial activities and navigation. However, rapid urbanisation and population growth produce adverse impacts on the environment and river basins, and also increase the burdens necessary to protect fragile ecosystems of shared watercourses. In this manner, pollution became the first important focus in the protection of fresh water, as seen in regimes established both before and after the adoption of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers. Yet the concept of the protection of the marine environment is broader than the obligation to avoid pollution, and more recent treaties have realised a correlation between land-based activities and the status of freshwater ecosystems.

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Emilie Dupuits

Urban water management is one of the main priorities in global development agendas in the context of growing cities and climate change. However, the technical representation often attributed to urban waters hides the existing political interests and social inequalities behind. Moreover, the human right to water framework adopted at the global scale is unclear regarding the legitimacy of private companies in its provision, the transfer of resources to States for its implementation, and the role of grassroots actors in decision-making processes. In this chapter, we aim to examine the way public, private and community actors interact with each other and mobilise the human right to water in order to respond to urban water management challenges. The Latin American region, and more specifically Ecuador, is taken as an illustration of the political conflicts arising around the implementation of the human right to water in the context of (neo)extractivist policies and anti-privatisation movements. However, the region is also the place of water management alternatives, from community management to public-community partnerships connecting urban and rural areas.

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Mara Tignino

This chapter aims at examining how environmental concerns – and access to water in particular – have entered the field of collective security. Although the trend of including environmental threats in the agenda of the Security Council has been criticized by some permanent members, the concerns regarding water are voiced almost unanimously by all States. Focusing on the thematic discussions in the Security Council on 2016 and 2017, the chapter includes an analysis of the legal mechanisms of cooperation on shared water resources and the role of international humanitarian law (IHL) in safeguarding access to water during armed conflicts and in post-conflict settings. As a basic human need and human right, the provision of safe water is among the highest priorities of post-conflict countries and humanitarian agencies during peacebuilding.

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Stephen C McCaffrey

This chapter considers the rules of customary international law that have developed, and are continuing to develop, concerning the non-navigational uses of international watercourses. In identifying these rules, the chapter relies to some extent upon statements by the International Court and the relevant work of the International Law Commission as the best evidence of customary international law. The chapter will also refer to State practice and statements countries have made concerning legal standards applicable to non-navigational uses of international watercourses. Space limitations dictate that the chapter focus on the principal rules that are based in customary international law. There is broad agreement on two of these obligations: equitable and reasonable utilization; and prevention of significant harm. Also important are the general obligation to cooperate, and prior notification of planned measures.

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Alessandra Correia Lima Macedo Franca

The multifaceted role of water resources reveals the great complexity of water management and protection, and suggests the need for a global multilevel legal system. It is clear, however, that there exists a wide gap between global needs and local realities. In this sense, regional organizations and regional law may be the ideal point of mediation. By analysing and comparing water management in European Union and Mercosur – as well as national examples from Spain and Brazil – the objective is to evaluate the legal-institutional structures of water management and protection in regional organizations. Aware of the differences between these two regional organizations, it is important to reflect on how these institutions can develop through mutual learning. It may be necessary to seek out ‘transjuridical’ approaches and to promote bigger synergies within the law and perhaps out of it, involving other fields of knowledge to achieve international goals.

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Attila Tanzi

The chapter deals with the diplomatic and legal means available to address transboundary water disputes. The contribution provides a brief comparative overview of the dispute settlement provisions of the 1992 UNECE Water Convention and of the 1997 UN Watercourses Convention. It is emphasized how, under the former instrument, the general obligation to cooperate is to be implemented through joint bodies, whose effectiveness is buttressed by the institutional setting of the MoP and its subsidiary organs. Within this context, the study addresses the implementation review mechanism which has been recently established under the same Convention, highlighting its potentials for the purposes of dispute prevention and settlement. The contribution concludes stressing the constructive interactions between negotiation and adjudication having special regard to the significant ‘distributive justice’ component of international water law.