Evolving normativity in contemporary international water law: A communicative approach to the growing role of non‐state actors

• Published date: 01 November 2020
• DOI: http://doi.org/10.1111/reel.12374
• Date: 01 November 2020
• Author: Yu Su

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  wileyonlinelibrary.com/journal/reel RECIEL. 2020;29:372–384.© 2020 Wiley Periodicals LLC

1 |  INTRODUCTION

Since the 1990s, glo bal governance has witnessed a ge neral move

from a top-down, hierarchical model, in which the governments are

traditional ly the single decision-makin g authority, to a bottom-up,

polycentric on e in which a plethora of non-State ac tors (NSAs) are

able to partic ipate and contribute more mean ingfully in the deci-

sion-making process.1 This broader change from government towards

governance, while m ost notable in the field of envi ronmental gover-

nance, also relate s specifically to the chall enges of water manage-

ment.2 Influenced by t he development of the concept of ‘com munity

interests’ and the increasing recognition of individual, group and col-

lective right s,3 NSAs’ influen ce in transboundar y water governance is

gaining in force and has attracted increasing scholarly attention. The

majority of wate r-related literatu re that specifically stu dies the role

 1OECD, ‘Stakeholder Engagement for Inclusive Water Governance’ (OECD Publishing

2015) 16. Theor etically, the ter m ‘non-State acto r’ is ‘a superord inate concept th at

encompass es all those acto rs in internati onal relation s that are not State [s]’. M Wagner,

‘Non-State Ac tors’ in R Wolfrum (e d), Max Planck Enc yclopedia of In ternational La w

(Oxford Uni versity Pres s 2013) 1. This term is un derstood in t his article to in clude those

actors rep resenting loc al or internati onal civil soci ety, including n atural perso ns, groups

of individua ls, non-govern mental organ izations (NGO s) and legal pers ons (such as

corporati ons and their ass ociations). Thi s understan ding of the term is b orrowed from A

Tanzi and C Pitea, ‘E merging Trends in t he Role of Non-State A ctors in Intern ational

Water Dispute s’ in Internatio nal Bureau of the P ermanent Cour t of Arbitrat ion (ed),

Resolution of I nternational Wa ter Disputes (Kl uwer Law Intern ational 2003 ) 259. This

article ad opts a narrow def inition and fo cuses mainly on p rivate, non-gov ernmental

actors, me aning that acto rs such as subnat ional governme nts and intern ational

organizat ions, though al so falling with in a broad defin ition, are not dis cussed. It sho uld

also be noted t hat, actors li ke terrorist gro ups and private s ecurity comp anies, thoug h

gaining incr easing schola rly attentio n, are not discuss ed, since they ar e more relevant i n

the field of law g overning the use o f force and humani tarian law. See CE J Schwöbel,

‘Whither t he Private in Glo bal Governanc e?’ (2012) 10 Interna tional Journa l of

Constitut ional Law 1106, 1124.

 2UNESCO World Wat er Assessmen t Programme, ‘ The United Nati ons World Water

Developme nt Report 2019: Leav ing No One Behin d’ (UNESCO 2019) 76.

 3Tanzi and Pitea (n 1) 259. Jut ta Brunnée als o talks about t he inclusion of no n-State

actors in th e internationa l legal process i n the context of ‘com munity inter ests’. See J

Brunnée, ‘International Environmental Law and Community Interests: Procedural

Aspect s’ in E Benvenisti , G Nolte and K Yalin-Mo r (eds), Communit y Interests acr oss

International Law (Oxford Univers ity Press 2018) 172.

Received: 5 July 2 020 

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 Accep ted: 17 October 2020

DOI: 10 .1111/reel .12374

SPECIAL ISSUE ARTICLE

Evolving normativity in contemporary international water law: A

communicative approach to the growing role of non-state actors

Yu Su

Correspondence

Email: yusu@xmu.edu.cn Legitimacy issue s in international law have tradition ally related to State consent and lega l-

ity. This State-centric par adigm, largely built upon legal for malism, fails to fully capture

the various forms of pa rticipation of non-State actors (NSAs) in inte rnational water law

and their impact s. This is especially tru e in the context of water governance which , as part

of global governance, witn essed an increased delegation of dec ision-making authority to

global instituti ons and a growing distance between t hose exercising authority and the

public. This article argues that the communicative approach, embedded within interna-

tional law, can better a ccount for the role of NSAs in the devel opment of norms in interna-

tional water law, as these leg al norms are formed and developed t hrough communication

among actors. P ublic participation, the main avenu e through which NSAs participat e in

international water law, is esse ntially a communicative process. The refore, the essential

elements of the communicative approach, including inclusiveness, access to information,

interaction and co ntinuation, play not only a constit utive but also a functional rol e in pub-

lic participatio n. Together, they combine to form an anal ytical framework which ca n be

applied to the analys is of the participation of NSAs in inte rnational water law.