Editorial

• DOI: http://doi.org/10.1111/reel.12074
• Author: Harro Asselt,Laurence Boisson de Chazournes
• Date: 01 April 2014
• Published date: 01 April 2014

Editorial

International water law is going through significant

developments. The imminent entry into force of the

1997 United Nations (UN) Watercourses Convention

and the amendment of the 1992 UN Economic Com-

mission for Europe (UNECE) Water Convention so as

to open it up to non-UNECE States constitute signifi-

cant milestones. The objective of the latter is to group as

many States as possible, particularly those adjacent to

the region covered by the UNECE, under the same

framework in order to extend the reach of the extensive

regulatory framework of the Convention. For its part,

the 2008 International Law Commission (ILC) Draft

Articles on the Law of Transboundary Aquifers has

become an important reference document. These ele-

ments attest to the willingness of States to develop rules

of a universal scope, which they had previously been

very reluctant to do. This is notably significant because,

for a long time, important legal and institutional devel-

opments had most often been taking place separately at

the universal, regional and local levels. The important

role played by universal and regional norms does not

prevent the conclusion of specific agreements to update

or to provide a more specific interpretation of existing

norms of a general content. Indeed, it is important to

conclude basin-specific treaties that allow for the con-

sideration of particularities and characteristics of indi-

vidual river basins and aquifers.

Collectively reading the norms that have been estab-

lished at different levels sheds light on some features of

the development of the law applicable to transboundary

fresh water resources. It thus becomes clear that the

different regulatory levels have been nurturing each

other. Further promotion is needed for the ongoing

harmonization of water practices and emulation

between universal norms and specific instruments on

transboundary water resources.1These various endeav-

ours stress the central role of cooperation and coopera-

tive devices for ensuring sound protection and

management of fresh water. International law is a rec-

ognized means for supporting and developing this

cooperation.

The topics covered in this special issue – including the

relationship between two potential water treaties of

universal outreach; regional approaches in interna-

tional water law in Europe, Africa, China and South

Asia; the law of transboundary aquifers; the develop-

ment of an ecosystem approach; and the similarities

and differences between biodiversity and water man-

agement – reveal one facet or another of the contribu-

tions of international law with respect to water, as well

as the acknowledgment of cooperation as a central

feature of international water law.

The special issue starts with a contribution by Stephen

McCaffrey who, through a broad tour d’horizon of

recent developments in international water law, high-

lights the fact that international cooperation on fresh

water is alive and well. He first discusses the recent

Indus Waters Kishenganga Arbitration between Paki-

stan and India, in which the Permanent Court of Arbi-

tration made the important finding that environmental

protection is required throughout a hydro-electric proj-

ect’s lifetime. Moreover, McCaffrey suggests that the

arbitration is an example of how States continue to

submit their water-related disputes to independent tri-

bunals for resolution – another indicator of the willing-

ness of States to cooperate. In a brief discussion of the

human right to water, McCaffrey next criticizes the fact

that the right to water has come under fire, particularly

in developed countries. He further expresses his

concern about the compatibility of the ILC Draft

Articles on the Law of Transboundary Aquifers with the

UN Watercourses Convention and, finally, suggests

that the prospect of having two water treaties with

global reach should be welcomed.

This last issue is addressed in detail by Alistair Rieu-

Clarke and Rémy Kinna, who take up the challenge of

assessing the options in case two international water

treaties are in force – a scenario that should no longer

be considered theoretical. The authors first compare

the evolution and texts of the UN Watercourses Con-

vention and the UNECE Water Convention and argue

that, while there are clear similarities and differences

between the two treaties, they are in fact compatible

and should be presented as a ‘package’. In a second

step, Rieu-Clarke and Kinna examine what such a

package could look like by discussing the advantages

and drawbacks of several institutional options for

implementing the two conventions. Under the ‘com-

bined’ option, the UNECE Secretariat would service

both treaties; under the ‘parallel’ option, the authors

envisage two separate institutional structures; and

under the ‘status quo’ option, the UN Watercourses

Convention would at least initially not have any insti-

tutional structure. The authors’ core argument is that,

whichever option is pursued, there will be a need for

coordinating the two treaties. Therefore, in a final step,

they briefly examine two other examples in interna-

tional environmental law – the clustering of three

1See Laurence Boisson de Chazournes, Fresh Water in International

Law (Oxford University Press, 2013), at 48-53.

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12074

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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