The Protection of Freshwater Ecosystems Revisited: Towards a Common Understanding of the ‘Ecosystems Approach’ to the Protection of Transboundary Water Resources

• Author: Owen McIntyre
• Date: 01 April 2014
• Published date: 01 April 2014
• DOI: http://doi.org/10.1111/reel.12068

The Protection of Freshwater Ecosystems

Revisited: Towards a Common Understanding of

the ‘Ecosystems Approach’ to the Protection of

Transboundary Water Resources

Owen McIntyre

The possible implications of States adopting, or of

general international law imposing, a meaningful

‘ecosystems approach’ to the protection and manage-

ment of shared international water resources are far-

reaching. However, the constituent elements of an

ecosystems approach, as well as the practical means

for its implementation, continue to emerge, though

they have become increasingly well understood in

recent years. Following the publication of an article

ten years ago in RECIEL, this brief article sets out to

update the reader on a number of key developments

over the last ten years including, in particular: the

proliferation of technical guidance on implementation

of an ecosystems approach; recent focus on the need to

safeguard ecological flows and the development of

related methodologies; the emergence of the ecosystem

services concept in international law and policy dis-

course; and the innovative employment of various

ecosystem-oriented measures in national legislative

frameworks in recent years.

INTRODUCTION

The possible implications of States adopting, or of

general international law imposing, a meaningful ‘eco-

systems approach’ to the protection and management

of shared international water resources are truly far-

reaching. These might range from the provision of a

means for measuring the economic value of ecosystems

services, and thus the economic tolerability of certain

ecosystems damage or loss, to the complete redefinition

of the scope of application of international water law,

thereby permitting this body of rules to more effectively

address the much discussed ‘water-energy-food nexus’.

Indeed, one might even suggest that, if taken to its

logical conclusion, the ecosystems approach could spell

the end for international water law as a discrete body of

rules and practices as it would be subsumed into a

broader corpus of international ecosystems law that

would facilitate the integrated sustainable management

of the various constituent components of the broader

ecosystem, which might sometimes even extend beyond

the drainage basin.

Despite such high stakes, the constituent elements of an

ecosystems approach, as well as the practical means for

its implementation, continue to emerge, though they

have become increasingly well understood in recent

years. The 1997 United Nations Watercourses Conven-

tion (UNWC)1emphasizes pollution control, prevention

of invasive species and the protection of the marine

environment, while some basin-level agreements, such

as the 1995 Mekong Agreement,2stress obligations

regarding environmental flows. The International Law

Commission’s 2008 Draft Articles on Transboundary

Aquifers3stress ‘the role of the aquifer or aquifer system

in the related ecosystem’4and more specifically call

upon States ‘to ensure that the quantity and quality of

water retained in an aquifer or aquifer system, as well

as that discharged through its discharge zones, are suf-

ficient to protect and preserve such ecosystems’.5

However, while States have routinely entered into con-

ventional commitments relating to the protection of

ecosystems associated with international watercourses

and drainage basins since the 1990s, the parameters

and practical implications of a meaningful ‘ecosystems

approach’ to the protection of such water resources are

only now becoming clearer. For example, the 2005 Mil-

lennium Ecosystems Assessment now provides a

detailed elaboration of the concept of ‘ecosystems ser-

vices’, while the recent Partial Award of the Permanent

Court of Arbitration (PCA) in the Kishenganga Arbi-

tration identifies and enforces a (seemingly customary)

obligation to safeguard environmental flows for down-

stream States when constructing and operating major

riverine infrastructure. In addition, detailed guidance

on the practical requirements of an ecosystems

approach has been prepared under the auspices of both

1United Nations Convention on the Non-navigational Uses of Inter-

national Watercourses (New York, 21 May 1997; not yet in force).

2Agreement on Cooperation for the Sustainable Development of the

Mekong River Basin (Chiang Rai, 5 April 1995; in force 5 April 1995).

3Draft Articles on the Law of Transboundary Aquifers, in: Report of

the International Law Commission on the Work of Its Sixtieth Session

(5 May to 6 June and 7 July to 8 August 2008) (UN Doc. A/63/10,

2008).

4Ibid., Article 5.1(i).

5Ibid., Article 10.

bs_bs_banner

Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12068

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

88