Editorial: Contemporary challenges for international water law: Setting a new course

• DOI: http://doi.org/10.1111/reel.12382
• Published date: 01 November 2020
• Author: Owen McIntyre,Patricia Wouters,David J. Devlaeminck,Lingjie Kong
• Date: 01 November 2020

RECIEL. 2020;29:317–321.  

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 317wileyonlinelibrary.com/journal/reel

DOI: 10 .1111/reel .12382

EDITORIAL

Editorial: Contemporary challenges for international water law:

Setting a new course

1 |  CONTEMPORARY CHALLENGES

Just under half o f the world’s popul ation lives in a tr ansboundar y

river basin, and t hese resource s contribute ap proximately 60 % of

the world’s freshwater flows.1 Despite their global significance, most

transbound ary basins are not covered by i nternational agreeme nts,2

a reality that co mpromises opp ortunities for effecti ve transbound-

ary water coop eration. A rece nt review of progres s in this field,

under the auspi ces of the United Nations (UN), stre ssed how trans-

boundary w ater cooperati on was ‘even more cruci al now’ in the

shadow of the COVID-19 pandemic , illustrating ‘the a bsolute neces-

sity to provide s afe and sufficient wat er and adequate sanit ation and

hygiene to all to protec t human health’.3 The report rei terated how

important transboundary cooperation is for ‘economic develop-

ment, peace an d environmental pro tection as well as for th e achieve-

ment of the SDGs [Sustainable Development Goals]’.4 Transboundary

waters are linked al so to global, regional and natio nal issues, across

sectors and l evels of governance, p resenting even mo re challenges

to attaining t he meaningful coop eration promoted thr ough the work

of the United Natio ns. In Januar y 2020, UN Secret ary-Gen eral

Antonio Guterr es identified the followin g four major threats to ‘our

common future’: (i) t he highest global ge o-strategic tensio ns in years;

(ii) an existenti al climate crisis; (iii) deep and g rowing global mistrust

and (iv) the dark si de of the digital world. 5 Just some months lat er, he

would add a fif th global challenge—the COVID-19 pandemic, w hich

continues to cau se disruption around the wor ld today, putting even

more pressure on t he world’s water resources .6

Contemporar y challenge s in the field of tr ansboundar y waters

continue to grow and d ifficult qu estions linge r. Close to a decade

ago, Professor Dan Tarloc k identified four hard challe nges for inter-

national water law, ari sing from the gap s he identifie d between (i)

the aspiration of f air and equitable use and un ilateral action; (ii) the

need for flexible adaptation frameworks (required to address global

climate change) and f ixed entitlem ent treaties (use d to support in-

vestment); (iii ) consumptive use s and the conser vation of aquat ic

ecosystems, a nd (iv) the suppo rt provided fo r building large d ams

and the needs of the disadvantaged.7 Despite more tha n a century of

dedicated inte rnational law research and p ractice in this field, ma ny

of these issues re main largely un resolved. This S pecial Issue 8 ad-

dresses, in par t, some of these har d questions. The cont ributions are

classified und er three broad categor ies: global, regional , and special-

ized aspects of w ater resources gove rnance and reg ulation.

Following a summar y of the contributions to th is Special Issue, con-

sidered from th e perspect ive of Tarlock’s four chall enges, the fin al

section will e ngage in a researc h agenda-sett ing exercise, wit h a

view to encourag ing further s cholarship i n this compellin g area of

international law.

2 |  OVERVIEW AND KEY FIN DINGS IN

LIGHT O F THE FOUR CHALLENGES

The Special Iss ue includes arti cles grouped into th ree broad substan -

tive areas: five ar ticles incl ude global per spective s, three art icles

deal with regional perspectives, and four articles address special-

ized topics in area s concerned with intern ational legal approa ches to

transboundary water cooperation.

 1See ‘Transbou ndary Waters A ssessment Pr ogramme’ .

 2UN Water, ‘Water Facts – Transboundary Waters’ (2020) er.org/

water -facts/ trans bound ary-water s/>.

 3UN Economic Co mmission for Eur ope (UNECE), ‘Rev iewing Progre ss on Transbounda ry

Water Cooper ation in the World ’ (2020)

onmen t/2020/revie wing-progr ess-on-trans bound ary-water -coope ratio n-in-the-world/

doc.html>.

 4UNECE, ‘Revie wing Progress o n Transboundar y Water Coopera tion in the World’

(2020) envir onmen t/2020/revie wing-progr

ess-on-trans bound ary-water -coope ratio n-in-the-world/ doc.html>.

 5UN Secreta ry-Genera l, ‘Address to the Op ening of the Gen eral Debate of th e 75th

Session of the General Assembly’ (22 September 2020) sg/en/

conte nt/sg/speec hes/2020-09-22/addre ss-the-openi ng-of-the-gener al-debat

e-of-the-75th-sessi on-of-the-gener al-assembly>.

 6ibid; the Sec retary-Ge neral continu es: ‘COVID-19 is not only a wa ke-up call, it is a dr ess

rehearsa l for the world of cha llenges to come …. T he pandemic ha s taught us that ou r

choices mat ter. As we look to the fu ture, let us make su re we choose wise ly’.

 7AD Tarlock, ‘Four C hallenges for I nternational Wa ter Law’ (2010) 23 Tulan e

Environmen tal Law Journa l 369, 371.

 8The inspira tion for this Spe cial Issue orig inated in Wuhan at an i nternational

symposium , ‘Transbounda ry Water Cooper ation under In ternational L aw’, hosted in

Wuhan in May 2019 by the C hina Institu te of Boundary a nd Ocean Studie s (CIBOS),

Wuhan Univer sity, China. The S eminar was supp orted by a Chine se National Key

Research Pro ject, No.: 2016Y FA0601604. This m eeting also pr ovided the impe tus for

the establ ishment of the Int ernational Wate r Law Academy, a glo bal initiative h osted by

CIBOS and aime d at promoting tr ansboundar y water cooper ation throug h a graduate

programme , internation al symposia, re search projec ts and execut ive training. Fo r more

information, see whu.edu.cn/>.

© 2020 John Wile y & Sons Ltd

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    EDITORIAL

2.1  |  Global perspectives

Achieving inter- and intra-generational fairness in using shared

global resources, including water, requires identifiable and uni-

versally endorsed norms that function to promote cooperative

approaches , contribute to lon g-term sustaina bility, and that en-

able a proper bal ancing of the inter ests of all conce rned States

and stakehol ders. At the hea rt of the syste m of internationa l

rules that govern s hared freshwater reso urces are the co-relative

rights and dut ies of riparian St ates to cooperat e, to utilize such

resources in an equitable and reasonable manner and to take due

diligence so as to avoid c ausing signifi cant transbo undary har m

as a result of any develo pment or use. The p rincipal function of

these norms is to r estrain unilateral act ion, to promote coopera-

tion, and, to bal ance, often comp eting, nation al interest s over

the uses of shared transboundary freshwaters. Implementing

these norms at t he global, regio nal and bilater al levels, as rele-

vant on a case-by-c ase basis, means defining t he resources to be

shared and then establishing clear parameters for their lawful

utilization an d protection. T his, however, often prove s to be

more difficu lt than one might expec t, as illustrated in the a rticles

by Lingjie Kong9 a nd Yang Liu.10 Each of these contributi ons ad-

dress the intri cate issues related to defining ‘ transboundary wa-

ters’, highlighting th is task as an esse ntial prerequi site for

determining th e legal param eters of the rule s that apply to the

watercourse. O ther contributions t hat are included in the ‘glo bal’

group include t hose by Nabaat Tasnima Mahbub,11 Alistair Rieu-

Clarke,12 and Yu Su.13 Kong and Liu each examin e the legal no-

tion of ‘scope’ and exp lore its fundament al role in prescribing t he

normative reac h of the regime that governs the use and pr otec-

tion of transbo undary water s. Focusing on th e pending Di spute

over the Status and Use of the Waters o f the Silala (Chile v Bolivia)

case before the I nternational Court of Ju stice, Kong investigates

the conventional and customary rules and relevant jurisprudence

in the field, wi th special consideration of t he legal aspects of the

controversy. While ex amining the details of th e case, he explores

a more general top ic—the evolution of t he definition of ‘interna-

tional watercou rse’ in international law. Liu furt her pursues this

theme, demonstrating how the interpretation of such essential

terms as ‘internat ional watercourse’ and ‘ecosys tem’ may lead to

a ‘terrestr ial gap’ in normati ve coverage, evide nced in some of

the prevailing conventional approaches, including in global in-

struments. This raisesserious questions regarding normative co-

herence across these provisions. Her study scrutinizes selected

State practi ce with a view to evalu ating how diffe ring conven-

tional approa ches might help to re concile probl ems related to

normative incoherence in this area.

The manner in which watercourse States define and implement

the bedrock pr inciple of ‘equita ble and reason able use' often de ter-

mines the quali ty of transboundar y water cooperatio n between ripar-

ian nations. This t opic is explore d from differe nt perspec tives by

Mahbub, who use s a normative app roach, and by Su, w ho focuses

more on process. Implementing the rule of equitable and reasonable

use requires establishing all of the relevant factors, and considering

these together, ‘wi th a conclusion reach ed on the basis of the who le’.14

It is within this cont ext that Mahbub exa mines the legal noti on of ‘pro-

portionali ty’ and offers insig hts into how it contributes to th e equita-

ble balancing of co nflicting needs and depend encies of basin States.

Equitable approaches to transboundary water cooperation are as-

sisted also by transparency and facilitative compliance measures, sup-

ported in par t by national report ing on shared goals and ob jectives. In

the transbou ndary water co ntext, this in cludes repor ting under t he

SDGs, explor ed more fully by Rieu-Cla rke. He examines how the out-

comes of this exercis e can serve to im prove outcomes in t his field.

Rieu-Clarke con cludes that th e SDG report ing process prov ides a

unique opportunity to strengthen countries, international organiza-

tions and other re levant actors in their ef forts to advance the qu ality

of transbound ary water cooperation . Su explores how a transbo und-

ary cooper ative regime might d evelop more full y through eff ective

channels of commu nication across a broad ra nge of stakeholders. He

presents an innovative framework that broadens opportunities for

basin-wide engagement based on a 'communicative approach.'

2.2  |  From global to regional and nat ional practice

The global and regional levels of international water resources manage-

ment are bridged in the contribution by Patricia Wouters and Sergei

Vinogradov. 15 Their article introduces an ‘instrumentalist approach’ to

international law as the analytical lens through which to reconceptual-

ize and evaluate regional transboundary water regimes. Also included in

the regional and national topics are articles by David J. Devlaeminck

and Xisheng Huang,16 and Sergei Vinogradov and Patricia Wouters.17

 9L Kong, ‘The Di spute over the Status a nd Use of the Waters of t he Silala River C ase and the

Customar y Rules on the Def inition of Inter national Waterc ourse’ (2020) 29 R eview of

European, Comparative and International Environmental Law.

 10Y Liu, ‘Beyon d Semantics: O vercoming the N ormative Incoh erence Surrou nding the

Protectio n of Internation al Watercourse Eco systems’ (202 0) 29 Review of Europ ean,

Comparative and International Environmental L aw.

 11NT Mahbub, ‘T he Role of Propor tionality i n the Law of Transbou ndary Waters’ ( 2020)

29 Review of Europ ean, Compar ative and Intern ational Enviro nmental Law.

 12A Rieu-Clarke, ‘Can Reporting Enhance Transboundary Water Cooperation? Early

Insights fr om the Water Convent ion and the Sust ainable Deve lopment Goals R eporting

Exercise’ (2 020) 29 Review of Euro pean, Compar ative and Inter national Envir onmental

Law.

 13Y Su, ‘Evolvin g Normativit y in Contempor ary Internat ional Water Law: A

Communica tive Approac h to the Growing Rol e of Non-State Acto rs’ (2020) 29 Revie w of

European, Comparative and International Environmental Law.

 14Conventio n on the Law of the No n-navigationa l Uses of Internat ional Watercour ses

(adopted 21 May 1997, enter ed into force 17 Augus t 2014) 36 ILM 700 art 6 (3).

 15P Wouters and S Vi nogradov, ‘Refr aming the Transbo undary Water D iscourse:

Contextua lized Internat ional Law in Pra ctice’ (2020) 29 Re view of European ,

Comparative and International Environmental L aw.

 16DJ Devlaemin ck and X Huang, ‘C hina and the Glo bal Water Conventi ons in Light of

Recent Develo pments: Tim e to Take a Second Look?’ ( 2020) 29 Review of Eur opean,

Comparative and International Environmental L aw.

 17S Vinograd ov and P Wouters, ‘Ada ptation Regul atory Regimes t o Address Clima te

Change Chall enges in Transbou ndary Water Bas ins: Can Multil ateral Regiona lism Help?’

(2020) 29 Revie w of European, Co mparative and I nternational E nvironmenta l Law.

   

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EDITORIAL

With global leg al instrume nts, such as the U N Watercourses

Convention18 and the UNECE Water Convention,19 yet to achieve

universal global endorsement,20 it is interesting to tr ace how many

of their core principles are reflected in regional actions and bilat-

eral agreeme nts around the globe an d to note also any difference s

in regional appr oaches. This is the main th eme of the Wouters and

Vinogradov ar ticle, which calls for a ref raming of the transbound-

ary discour se so as to take on board national at titudes to interna-

tional law, together w ith regional Sta te practice. D eploying an

‘instrumentalist’ conceptual approach, their contribution exam-

ines China’s attit ude to internatio nal law as a necess ary context

for underst anding its tr ansboundar y water acti ons. This ‘refra m-

ing’ could help to b etter inform and adv ance effective tr ansbound-

ary water coop eration in gene ral, through h oning in on nation al

and regional specificities thus providing a new locus for examining

convergent normat ivity in this field. Devla eminck and Huang pur-

sue a similar line of enquiry, interrogating whether China’s regional

approach align s with the global water co nventional regimes, ex am-

ined in light of its vote a gainst the UN Re solution ado pting the

Watercourses Conve ntion in 1997. Their analysis of the f our rea-

sons China gave for it s position raises interest ing points and asks

whether the time has come for China to reconsider its approach.

Finding that glo bal practi ce in this field is fo llowed in some of

China’s regional ac tions, the ar ticle sugges ts that serio us obsta-

cles still rema in and offers insights into how th ese might be over-

come. Regional ap proaches coul d also be helpful i n addressing

global issues su ch as climate change i n the transbou ndary wa-

ter-related context. Linking these main themes, Vinogradov and

Wouters suggest that ‘multilateral regionalism’, aimed at integrat-

ing the legal regimes agreed under multilateral environmental

agreements and in regional transboundary water agreements and

practice, may h old the key to unlocking th e type of comprehensi ve

adaptation regulatory regime needed to tackle the climate change

challenge. The a rticle identifies the core e lements of a yet incho-

ate adaptive regul atory fram ework that emerg es from across

these legal regimes, which could provide a springboard for ad-

dressing regional transboundary water-related climate change

problems. Thi s responds in som e ways to Tarlock’s concer n re-

garding the nee d for flexible and functi onal legal regimes that are

resilient and ad aptable enough to ta ckle the complex chall enges of

global climate change.

2.3  |  From global and regional to spe cialized topics

In the categor y of specialized top ics, which par tly overlap wi th

some of the issues a ddressed above, two are as central to Tarlock’s

four challenges a re covered: the prot ection and pre servatio n of

ecosystems of tr ansboundar y waters, an d interactio ns between

international water law and internation al investment law.

Regarding the f irst subjec t, this collec tion include s articles by

Tianbao Qin an d Jin Gu,21 and O wen McIntyre. 22 On the second

topic area, the re are articl es by Ana Maria Daz a-Clark23 an d

Huiping Chen.24

With a focus on the e nvironmenta l aspects of t ransbounda ry

water cooperat ion between C hina and its neig hbours, Qin a nd Gu

outline China’s pr actice related t o the concept of payment for eco-

system services (PES), which they consider could assist with balanc-

ing interest s across transb oundary ba sins. The stud y examines the

particular position of upstream riparians and the challenges they

face in transboundary water development—the so-called ‘upstream

dilemma’.25 In addition to considerin g the rules of inter national

water law that govern tr ansboundar y waters, th e authors exp lore

national prac tice related to PE S in China and in the f our lower

Mekong States (Ca mbodia, Lao s, Thailand an d Vietnam), togeth er

with bilateral p ractice invol ving China and so me of its neighbo urs.

The authors co nclude by calling for improved tr ansboundary coop-

eration using PE S arrangemen ts, which they s uggest could h elp to

address the ‘upstream dilemma’ through providing pragmatic mech-

anisms for benef it sharing. McI ntyre’s contrib ution direct ly consid-

ers issues relat ed to Tarlock’s concern over blu e-water law trade-of fs

and normative re sponsibilit y. The article rev iews recent develo p-

ments related to t he legal requiremen ts for the protectio n and main-

tenance of riverin e ecosystems a nd finds greate r clarity rega rding

the standar ds of conduct exp ected of ripar ian States. McIn tyre

sheds some light o n the important rule of due d iligence that applies

in this field and s uggests that, combined wi th the continuing emer-

gence of ecosyste ms-related obliga tions, ripari an nation dutie s in

this field are becoming increasingly more robust, thereby contribut-

ing to the equita ble balancing of the inter ests of watercourse St ates,

partly thro ugh the maintena nce of essential w ater-related ecosys-

tem services.

 18United Nati ons Convention o n the Law of Non-Nav igational Use s of Internation al

Watercourse s (adopted 21 May 1997, entere d into force 14 August 2 014) 1997 36 ILM

700 (Watercourses Convention).

 19Conventio n on the Protecti on and Use of Transbou ndary River s and Lakes (adop ted 17

March 1992, ente red into force 6 Oc tober 1996) 1936 UNTS 269 (Wate r Convention).

 20The Watercour ses Conventio n has 37 parties; t he Water Conventio n has 44 parti es.

The Transboun dary Waters As sessment Prog ramme (n 1) state s that transbou ndary river

basins span 151 cou ntries. For the S DG reportin g on transboun dary cooper ation UNECE

and UNESCO inv ited 153 countri es to report on t heir transbo undary water s; see

Rieu-Clar ke (n 12).

 21T Qin and J Gu, ‘Pay ing for Ecosyst em Services in Tra nsboundar y Water Allocati on

Cases: An Ap proach for Chin a and its Neighb ours’ (2020) 29 Re view of European ,

Comparative and International Environmental L aw.

 22O McIntyre, ‘ State Respons ibility in Inte rnational Law f or Transboundar y Water-

Related Harm : The Emergence of a N ew Ecosystems- Based Paradig m?’ (2020) 29 Revie w

of European, Comparative and International Environmental Law.

 23AM Daza-Cla rk, ‘Enforcin g Transboundar y Water Obligati ons through Inve stment

Treaty Arbitr ation: China, L aos and the Meko ng River’ (2020 ) 29 Review of Europe an,

Comparative and International Environmental L aw.

 24H Chen, ‘Th e Role of Amicus Curiae in Implemen ting the Human Ri ght to Water in the

Context of Int ernational Inv estment Law ’ (2020) 29 Review of Eu ropean, Comp arative

and International Environmental Law.

 25The notion of th e ‘upstream di lemma’ is discuss ed in P Wouters, H Ch en and JE

Nickum, Transbounda ry Water Coopera tion: Principl es, Practice a nd Prospects fo r China and

its Neighbours (Routledg e 2018).

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    EDITORIAL

Clearly, the tensio n between the economic im peratives of major

infrastruc ture projects on inter national waters and thei r socio-envi-

ronmental imp acts continue s to mount in all par ts of the world. Daz a-

Clark attempt s to connect t he key principles a cross internat ional

water law and intern ational invest ment law, in search of ef fective

approaches for mutually supportive compliance and enforcement. In

doing so, she anal yses the attitudes of both Ch ina and Laos in their

investment and w ater-related treatie s. While these co untries have

divergent views regarding their investment and water law regimes,

Daza-Clark ill ustrates how t hese could be mut ually reinforc ing, as

investment law tr ibunals may offer a forum for discus sion of water

issues that can not be resolved w ithin the confin es of internation al

water law alone. Ch en’s article buil ds on this theme , introducing

the rather under-studied notion of the amicus curiae, which offer s

one route for addressing stakeholder interests in water-related in-

vestment dispu tes. This invest or-State dispute settle ment pract ice

allows for the mob ilization of significant ex pertise regarding t he on-

the-ground imp acts of water development p rojects. Thus, it has n ot

only contribut ed to the developm ent of amicus curiae mechanisms

in investment law b ut also to the evolution of the conc ept of human

right(s) to water and s anitation, discussed i n Chen's study.

In sum, the vario us contributions to this Spe cial Issue have ad-

dressed some of t he hard challenge s identified i n Tarlock’s four

gaps in international water law:

• The gap be tween the aspiration of fair and equitabl e use and uni-

lateral action. This has been approa ched in several ways, pri mar-

ily through exp loring ways to improve effecti ve transboundary

water cooperat ion—from recomme nding a reframi ng of the

transboundary water discourse so as to more fully comprehend

the national and r egional contex t (Wouters and V inogradov;

Devlaeminck a nd Huang; Vino gradov and Wouter s); to explor-

ing evolving nor mativity (Kong; Li u; Mahbub; McIntyr e); through

using global transparency processes and facilitative compliance

measures and reg ional pract ices (Rieu-Cl arke; Vinogra dov and

Wouters) and, in light of m odalities acr oss internation al law to

increase stakeholder engagement and support (Su; Chen; Qin

and Gu; Daza-Clark).

• The gap b etween the need for f lexible adapta tion frameworks , re-

quired to address gl obal climate change, and fixed-e ntitlement trea-

ties, used to suppo rt investment. This probl em has been addressed

in part through the multilateral legal regimes and regional ap-

proaches to ta ckle climate chan ge (Vinogr adov and Wouters); in

light of the prac tices that prom ote normative cla rity (Liu; Kong) ;

through metho ds that enhance co operative ef forts in th is field

(Su; McIntyre; Q in and Gu) and that pr omote joined-up a p-

proaches (Daza-Clark; Chen).

• The gap be tween consumpti ve uses and the conser vation of riv-

erine ecosystems. This could be t ackled thr ough evolving nor-

mativity in international water law, including improved clarity

of the norms that ap ply and throug h improved benef it-sharing

arrangement s and regional practice ( McIntyre; Qin and Gu; Liu;

Mahbub).

• The gap between support for economic development, including

major infrastru cture projects on internationa l waters, and the needs

of the disadvantaged. T his issue can be ex plored in a numb er of

ways, including b y giving greater voi ce to community g roups in

various fora, w hether in inves tment law or water law (S u; Chen;

Daza-Clark ), via approache s that facilit ate balancing all i nterests

(Mahbub; McInt yre), through gre ater regional und erstandi ng

(Wouters and V inogradov) and p romoting innova tive solutions

(Qin and Gu).

3 |  SETTING A NEW COURSE FOR THE

FUTURE

The transfor mation of interna tional law and of how it r esponds to

global and regio nal problems has been esp ecially evident during t his

past year, where regional dichotomies and national unilateralism

have revealed the cr acks in interna tional cooper ation.26 Jus t as

transbound ary waters can sep arate nations, so too ca n they connect

countries and a ct as a staging ground for the es tablishment of new

and innovative norms of meaningful cooperation.

While hard ques tions may be asked on w hether ‘intern ational

water law’ has met th e great object ives for which it ha s been pro-

gressively devel oped and codified over th e past half-century, the ar-

ticles here revea l that while some progress has b een made, difficult

issues continue t o proliferate. This Sp ecial Issue therefore co ncludes

with a clarion ca ll for reinvigorated researc h in the fields of interna-

tional law that app ly to shared fre shwater resource s, broadly con-

strued. In lig ht of the complex challenges tha t now emerge globally,

especially gi ven the evolving nat ure of internatio nal law and inter-

national relati ons this past year, there is a compell ing need for inno-

vative approac hes. Drawing f rom the contrib utions to this Spe cial

Issue, and in the co ntext of Professor Tarlock’s four chall enges, fol-

lowing is an indic ative, not comprehensive , list of proposed resear ch

topics in this field:

• How ‘international’ is international water law? As international

law faces signifi cant challenges acros s the global stage, regi onal

and national app roaches to inter national law bec ome increas-

ingly impor tant, eviden ced especiall y during this pas t year.

Does contempor ary State pr actice relate d to transboun dary

water management o ffer new insight s in this area? Is the re a

newly emerging 'convergence' of the fundamental norms that

apply to transb oundary wa ters? How might region al, national,

subnational an d local stake holders, ea ch relevant in so ma ny

aspects of re silient water management, cont ribute to improved

transbound ary water govern ance and throug h what legal

mechanisms?

• What future for the global water conventions? Following close to

30 years of stud y, it has taken another t wo decades a nd the

joint effort of multiple organizations and international experts

 26UN Secreta ry-Genera l (n 4).

   

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EDITORIAL

to garner enough support for the UN Watercourses Convention

to finally enter in to force. While this effor t continues under the

auspices of the UNECE a nd its 1992 Water Conventio n, both

global instruments have yet to gain universal endorsement,

with varyin g support in di fferent regio ns of the world. How

robust are the se two instru ments in the lig ht of contemporar y

challenges, es pecially given the sign ificant regional and b ilateral

practice studied here? Are these global conventions capable

of meeting changing circumstances across diverse regimes in

meaningful w ays that promote ef fective tr ansboundar y water

cooperation?

• How climate-proof is international water law? Considered within

the context of sus tainable deve lopment and th e SDGs, and in

the shadow of new and u nprecedented pressure s, including the

global health p andemic, th e thorny issues co nnected wit h cli-

mate change need to b e addressed in in ternational wat er law.

Climate change has a lready altere d, and will contin ue to affect

water availability and flow variability, resulting in hydrological

transformations in global, regional and national contexts, pos-

ing significa nt challenges aro und the world for a b road spec-

trum of stakeholders and disparate communities. It is a complex

multi-layered problem that stretches across sectors, gover-

nance regimes an d socio-politi cal boundar ies. How to tack le

global climate change within and beyond transboundary water

basins?

• What is th e practical utility and real feasib ility of the current, rigor-

ously maintained , distinction bet ween the substantive and p rocedural

rules of international water law? This distinction is obser ved in all

water conventions , despite its obvious art ificiality, as pointed out

by the Internatio nal Court of Justice in Pu lp Mills.27 It appears that

while States may fi nd it easier to comply with proced ural obliga-

tions due to their o stensibly weak l ink with subst ance, that this

approach clou ds the true nor mative nature an d implication s of

each categor y of rules—why is this so a nd is there a bet ter way

forward?28

• How might international water law interact better across other areas

of international law? Like water, international water law crosses

the boundari es of many different internatio nal and national legal

regimes (international economic law, international environmental

law, global climate law, hum an rights law, law of the sea, peacef ul

settlement of d isputes, and St ate responsibl ity, as just some ex-

amples). How might th ese overlaps be b etter under stood, with

innovative conceptual approaches, and more joined-up thinking?

While some of the se topics are being consi dered through the on-

going work of the UN, t he World Bank and related regional i nstitu-

tions, this Spe cial Issue highli ghts the compe lling need for mo re

scholarly res earch in this field. The rele vance of international water

law continues to grow, com plicated by numerous complex con tem-

porary challenges, including emerging global threats to ‘our common

future’. Evidence for thi s is confirmed in the signifi cant international

uptake of the recent ly launched G lobal Water Part nership (GWP)

MOOC (Massive Op en Online Cour se) on ‘Governance f or

Transboundary Fre shwater Securi ty’ (with a ded icated modul e on

international w ater law), which has attra cted over 1,000 p articipants

from around the wo rld.29 This underscore s the current relevance of

this topic for not on ly the legal and a cademic comm unity, but also

policymakers, practitioners and diverse communities sharing trans-

boundary w aters all around the worl d. Clearly, there is more work to

be done—this Spec ial Issue urges renewed and sust ained effor ts in

this important and rapidly evolving field.

Patricia Wouters1

David J. Devlaeminck2

Lingjie Kong1

Owen McIntyre3

1International Water Law Academy, Wuhan University

2School of Law, Chongqing University

3School of Law, Univers ity College Cork, Irelan d

Correspondence

pkwouters@aol.com

How to cite this arti cle: Wouters P, Devlaeminck DJ, Kong L,

McIntyre O. Editorial: Contemporary challenges for

international w ater law: Setting a new cour se. RECIEL.

2020;29:317–321. https ://doi.o rg/10 .1111/re el.12 382

 27Pulp Mills on th e River Uruguay ( Argentina v Uru guay) (Judgm ent) [2010] ICJ Rep 14.

 28With thank s to Professor Dan Tarl ock for this sugg estion, whic h he said would be

added to his lis t of contempora ry challenge s for internatio nal water law (comm unication

with Profess or Tarlock, on file w ith the author s).

 29Global Water P artnershi p (GWP), ‘Governa nce for Transbound ary Freshwate r Security’

(GWP 2020) onlin e-

engag ement -sessi on-for-the-mooc-on-gover nance -for-trans bound ary-fresh water -

secur ity/>.