The Cross‐fertilization between the Sustainable Development Goals and International Water Law

• Date: 01 April 2016
• DOI: http://doi.org/10.1111/reel.12152
• Published date: 01 April 2016

The Cross-fertilization between the Sustainable

Development Goals and International Water Law

Otto Spijkers*

Are the main principles of international water law, as

ref‌lected in the Watercourses Convention, suff‌iciently

equipped to motivate States to sustainably manage

their freshwater resources? This article suggests that a

more pronounced sustainable approach to these prin-

ciples is desirable. The Sustainable Development Goals

might give this ‘green’evolution of international water

law a further push in the right direction. In this contri-

bution, three elements that could be the focus of this

evolution are identif‌ied: (i) a sustainable interpretation

of the principle of equitable and reasonable utilization

of shared watercourses, the no-harm rule and the duty

of cooperation; (ii) a commitment to the further devel-

opment of the ecosystems approach to international

water law; and (iii) further emphasis on facilitating

public participation in decision making relating to the

utilization of international watercourses.

INTRODUCTION

Some treaties, regulating the utilization and joint man-

agement of a specif‌ic transboundary watercourse, pay

considerable attention to sustainable development.

1

Some regional legal instruments on water management

do so as well.

2

And the same is true for some national

water laws

3

and policies.

4

We also see that courts –both

at the international and domestic level –increasingly

adopt a sustainable development-oriented approach to

international water law.

5

Through this development,

the open and largely procedural norms and principles

of general international water law are interpreted in

such a way as to oblige States to embrace a ‘green’

approach to regulating the use of their freshwater

resources.

6

This contribution sets out to examine

whether the Sustainable Development Goals (SDGs)

can also play a modest role in this ongoing develop-

ment. In other words, can the SDGs give a further boost

to the evolution of general international water law

towards a more sustainable development-oriented legal

framework?

The underlying idea is that the concrete political com-

mitments relating to water contained in the SDGs –and

SDG6 in particular –can add substantive f‌lesh to the

otherwise abstract skeleton of general international

water law. At the same time, the SDGs will be elevated

from purely political commitments to legally relevant

obligations when they can be so ‘attached’to the norms

of international water law. In short, there is potential

for true cross-fertilization, with a global legal frame-

work and global environmental policy strengthening

each other.

More specif‌ically, there are three ways in which this

cross-fertilization can be most successful. The SDGs

can be used to motivate States to: (i) interpret and apply

the foundational principles of international water law

in a sustainable manner; (ii) encourage the further

development of the ecosystems approach to interna-

tional water law; and (iii) use the legal framework of

international water law to facilitate public participation

at all levels of water governance.

7

* Corresponding author.

Email: O.Spijkers@uu.nl

1

See, e.g., the Convention on Co-operation for the Protection and

Sustainable Use of the River Danube (Sof‌ia, 29 June 1994; in force 22

October 1998), especially Article 2; International Meuse Treaty

(Ghent, 3 December 2002; in force 1 December 2006); Guarani Aqui-

fer Agreement (San Juan, 2 August 2010; not yet in force); Agreement

between the Government of the Republic of Kazakhstan and the Peo-

ple’s Republic of China on Water Quality Protection of Transboundary

Waters (Beijing, 22 February 2011); and the Convention on the Sus-

tainable Management of Lake Tanganyika (Dar es Salaam, 12 June

2003), especially Article 5.2. For more examples, see A. Rieu-Clarke,

‘The Sustainability Principle’, in: A. Tanzi et al. (eds.), The UNECE

Convention on the Protection and Use of Transboundary Water-

courses and International Lakes (Brill, 2015), 195.

2

See, e.g., European Union Directive 2000/60/EC of the European

Parliament and the Council Establishing a Framework for the Commu-

nity Action in the Field of Water Policy, [2000] OJ L327/1.

3

See, e.g., Water Law of the Central African Republic, Article 2.

4

See, e.g., the Ghanaian National Water Policy (2007), found at:

<http://www.purc.com.gh/purc/sites/default/f‌iles/WATERPOLI-

CY.pdf>.

5

See, e.g., ICJ 25 September 1997, Gab

c

ıkovo-Nagymaros Project

(Hungary v. Slovakia), [1997] ICJ Rep. 7; ICJ 20 April 2010, Pulp Mills

on the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep. 14

(‘Pulp Mills’); ICJ 16 December 2015, Construction of a Road in Costa

Rica along the San Juan River (Nicaragua v. Costa Rica), found at:

<http://www.icj-cij.org/docket/f‌iles/152/18848.pdf>.

6

The ‘green’ metaphor is borrowed from United Nations Environment

Programme (UNEP), The Greening of Water Law: Managing Fresh-

water Resources for People and the Environment (UNEP, 2010).

7

For an earlier development of these three proposals (published

before the adoption of the SDGs), see O. Spijkers, ‘The Sustainable

Development Goals as Catalyst for the Sustainable Management of

Water Resources’, 24:3–4Journal of Water Law (2015), 115.

ª2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

39

RECIEL 25 (1) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12152

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