The Rising Role of Regional Approaches in International Water Law: Lessons from the UNECE Water Regime and Himalayan Asia for Strengthening Transboundary Water Cooperation

• Date: 01 April 2014
• DOI: http://doi.org/10.1111/reel.12065
• Author: Ruby Moynihan,Bjørn‐Oliver Magsig
• Published date: 01 April 2014

The Rising Role of Regional Approaches in

International Water Law: Lessons from the UNECE

Water Regime and Himalayan Asia for

Strengthening Transboundary Water Cooperation

Ruby Moynihan and Bjørn-Oliver Magsig

The contribution of regional approaches to the inter-

national law of transboundary watercourses is cur-

rently being investigated with elevated interest. The

United Nations Economic Commission for Europe

(UNECE) area and Himalayan Asia are two key focus

regions for testing new legal approaches and enhanc-

ing understanding of how existing regional regimes

function and contribute to the development of interna-

tional water law. The UNECE Water Convention,

together with an entourage of hard and soft water

instruments, appears to be the most sophisticated legal

regime addressing freshwater cooperation. Within

Himalayan Asia, where the water crisis is augmenting

the already tense political situation, the current state

of affairs for implementing a more progressive

regional approach is examined. Studying the structur-

ally different and challenging Himalayan context fur-

thers our understanding of hurdles regarding the

transferability of regional concepts. This article iden-

tifies gaps in our current perception of the role for

regional approaches in international water law and

outlines pathways for addressing them.

INTRODUCTION

The previously steady development of the international

legal architecture for transboundary water coopera-

tion has recently accelerated towards reaching long-

anticipated aims and evolved to address newly arising

global environmental and political challenges. These

significant changes are taking place within an increas-

ingly complex and fragmented multilevel governance

framework, where coherence and institutional coordi-

nation are lacking between the different bodies of inter-

national law addressing ground and surface waters;

between water laws at global, regional, basin and

national levels; and between water law and other areas

of international environmental law directly related to

water (e.g., the international climate change and biodi-

versity regimes or across sectors for water, energy and

food). Adding to this complex situation is the emerging

trend of an increasing involvement of a diverse set of

actors influencing the development and implementa-

tion of substantive and procedural rules of interna-

tional water law.1Given that the world’s future

developmental path ‘is likely to increase tensions over

water both between countries that share transboundary

water sources, and within countries where sectors or

communities find themselves in increasing competi-

tion’,2cooperation over transboundary waters is argu-

ably one of the most pressing challenges of our time.

Hence, despite the potential political obstacles and the

complexity of the task, international law has to assist in

paving a path which guides States towards mutually

advantageous models of cooperation. Given the chal-

lenges in strengthening international cooperation at the

global level, renewed interest in regional approaches to

global governance generally,3and specifically in rela-

tion to international law4and international water law,5

have emerged over the last decades.

Nye defined an international region as ‘a limited

number of states linked by a geographical relationship

and by a degree of mutual interdependence’, and inter-

national regionalism as ‘the formation of interstate

associations or groupings on the basis of regions’.6

1J. Brunnée and S.J. Toope, ‘The Changing Nile Basin Regime:

Does Law Matter?’, 43:1 Harvard International Law Journal (2002),

105.

2B. Lee et al., Resources Futures (Chatham House, 2012), at 46.

3A. Hurrell, ‘Explaining the Resurgence of Regionalism in World

Politics’, 21:4 Review of International Studies (1995), 331; E.D.

Mansf‌ield and H.V. Milner, ‘The New Wave of Regionalism’, 53:3

International Organization (1999), 589.

4H. Ruiz Fabri, ‘Ref‌lections on the Necessity of Regional Approaches

to International Law through the Prism of the European Example:

Neither Yes Nor No, Neither Black Nor White’, 1:1 Asian Journal of

International Law (2011), 83.

5P. Wouters, ‘Universal and Regional Approaches to Resolving Inter-

national Water Disputes: What Lessons Learned from State Prac-

tice?’, in: International Bureau of the Permanent Court of Arbitration

(ed.), Resolution of International Water Disputes: Papers Emanating

from the Sixth PCA International Law Seminar, November 8, 2002

(Kluwer Law International, 2003), 111, at 209; L. Boisson

de Chazournes, Freshwater and International Law: The Interplay

between Universal, Regional and Basin Perspectives (United Nations

World Water Assessment Programme, 2009).

6J.S. Nye, International Regionalism: Readings (Little, Brown, 1968),

at vii.

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12065

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43

However, these definitions have not been accepted

unanimously, as the rise in the foundation of regional

organizations did not always trigger an increase in

regionalism. More recent understandings of regional-

ism move beyond the State as the solitary actor to

include both formal and informal interactions between

State and non-State actors.7The concept of a ‘regional

approach’ to international law has been used inter-

changeably with the concept of a ‘regional arrangement’

to mean

a limited grouping of three or more States that have some

geographical association and have formally come together in

order to collectively pursue activities of common concern.

Regional arrangements can be constituted through detailed

legal agreements or through political agreements that are of

an international nature, designed to commit the signatories

to specific courses of action.8

This article applies the above definition to regional

approaches to international water law, but we note

the absence of non-State actors as a shortcoming to

this definition. The article explores the effect of distinc-

tive regional arrangements to regulate transboundary

waters on international water law, and examines

whether such regional approaches fill substantive gaps

in the international legal framework or whether there

are also points of conflict with other instruments of

international water law. It is hoped that in searching for

answers to these questions, the article contributes to

the development of an analytical framework for study-

ing regional approaches to cooperation in international

law.

It is beyond the scope of the article to give an exhaustive

analysis of the effect of regional approaches on all sub-

stantive and procedural rules and principles of interna-

tional water law. Instead, at the heart of this inquiry is

an examination of how an international legal principle

– the general obligation to cooperate – has been inter-

preted and implemented with respect to shared fresh-

water resources in two diverse regions of the world, the

pan-European United Nations Economic Commission

for Europe (UNECE) area and Himalayan Asia.

The UNECE is selected for examination due to having

developed one of the most sophisticated regional mul-

tilevel governance regimes for transboundary water

cooperation, which already makes a significant contri-

bution to international water law and which could

foreseeably play an even greater role in the future,

especially with its new global membership aspirations

and other innovative developments discussed below.

The case of Himalayan Asia demonstrates unparal-

leled water quantity and quality challenges within a

politically charged environment, where distinct

approaches to transboundary water cooperation have

developed and where existing principles of interna-

tional water law have been severely put to the test,

revealing weaknesses but also opportunities for future

legal development in a region supplying water to 22%

of the global population.9

The objective of this article is not to compare and con-

trast the substantive and procedural content of the legal

frameworks in these two distinct regions directly

against each other as the two cases sit on opposite sides

of the spectrum when it comes to their level of coopera-

tion on transboundary waters, their level of legal and

institutional development and even their interpretation

or acceptance of principles of international water law.

Instead, it is hoped that by analyzing the contribution of

these two distinct regimes, we can see how unique

regional approaches could have a different impact on

the direction of international water law. Therefore, our

conclusions will be of great interest to general debates

in international water law.

THE GENERAL OBLIGATION

TO COOPERATE IN

INTERNATIONAL LAW

International environmental governance in general,

and transboundary water management in particular,

has long been dominated by the either/or debate on

sovereignty versus the joint management of natural

resources. While most States have now accepted a more

nuanced interpretation of sovereignty, the debate about

how sovereignty over freshwater resources should be

interpreted today is still of the highest significance.

Critically, the notion of sovereignty carries a responsi-

bility to cooperate with it. As indicated by Article 1 of

the UN Charter: ‘The purposes of the United Nations

are: . . . (3) To achieve international co-operation in

solving international problems of an economic, social,

cultural, or humanitarian character.’10

This unspecified duty to cooperate was partially clari-

fied by the 1970 Declaration on Principles of Inter-

national Law concerning Friendly Relations and

Co-operation among States in accordance with the

Charter of the United Nations,11 which stipulates that

States have the duty to co-operate with one another, irre-

spective of the differences in their political, economic and

7L. Fawcett, ‘The History and Concept of Regionalism’, European

Society of International Law Conference Paper Series (2012), at 4.

8R. Burchill, ‘Regional Approaches to International Humanitarian

Law’, 41:2 Victoria University of Wellington Law Review (2010), 205,

at 209.

9D. Grey and G. Connors, The Water Security Imperative: We Must

and Can Do More (World Water Council, 2009), at 60.

10 Charter of the United Nations (San Francisco, 26 June 1945; in

force 24 October 1945), Article 1.3.

11 UN General Assembly, Declaration of Principles of International

Law Concerning Friendly Relations and Co-operation among States

in Accordance with the Charter of the United Nations (UNGA Reso-

lution A/RES/2625(XXV), 24 October 1970).

RUBY MOYNIHAN AND BJØRN-OLIVER MAGSIG RECIEL 23 (1) 2014

© 2014 John Wiley & Sons Ltd

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