The Challenge of Sustainability
Chapter 12: The Dynamics of the International Legal System
INTRODUCTION So far we have considered in some detail the language, the structure and the normative content of a number of international and national instruments that inform and direct how water resources should be managed. This has been complemented by a similar consideration of the range of practices and customs according to which water resources are used. Now is the time to consider whether these arrangements disclose any patterns or approaches that may lead to the sustainable use and development of water resources. Let us begin with the international legal system. THE CONTEXT The doctrinal foundations of the international legal system in relation to water resources include the concepts of sovereignty and pacta sunt servanda. It has been suggested that sovereignty over natural resources is the only principle that ‘can be considered as binding international law’.1 One aspect of sovereignty is entering into agreements. In this sense these are norms of competence. It has simultaneously been suggested that the principle of sovereignty ‘places states under an obligation to respect the environment of other states and areas beyond a state’s national jurisdiction’.2 Thus sovereignty as a norm of competence carries with it two correlative obligations. The first is to comply with any obligations undertaken by agreement – pacta sunt servanda. The second is to respect the environment of other states and areas beyond the state’s national jurisdiction. Doctrinally, therefore, sovereignty as a norm of competence is not absolute, for it carries with it by reason of its own nature certain obligations. Much...
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