International Water Law and the Quest for Common Security

Bjorn-Oliver Magsig

• Éditeur: Routledge
• Année: 2015
• ISBN:
  9781317596783
• Édition: 1
• Sujet: Derecho
• Sous-sujet: Derecho medioambiental

The world's freshwater supplies are increasingly threatened by rapidly increasing demand and the impacts of global climate change, but current approaches to transboundary water management are unsustainable and may threaten future global stability and international security. The absence of law in attempts to address this issue highlights the necessity for further understanding from the legal perspective.

This book provides a fresh conceptualisation of water security, developing an operational methodology for identifying the four core elements of water security which must be addressed by international law: availability; access; adaptability; and ambit. The analysis of the legal framework of transboundary freshwater management based on this contemporary understanding of water security reveals the challenges and shortcomings of the current legal regime. In order to address these shortcomings, the present mindset of prevailing rigidity and state-centrism is challenged by examining how international legal instruments could be crafted to advance a more flexible and common approach towards transboundary water interaction.

The concept of considering water security as a matter of 'regional common concern' is introduced to help international law play a more prominent role in addressing the challenges of global water insecurity. Ways for implementing such an approach are proposed and analysed by looking at international hydropolitics in Himalayan Asia. The book analyses transboundary water interaction as a 'case study' for advancing public international law in order to fulfil its responsibility of promoting international peace and security.

1 Introduction

1.1 Life in the Anthropocene – the disrespect for planetary boundaries

We live in times of rapid change where the vigorous, and at times abrupt, shifts in societal and environmental realities demand a change in how we define the challenges we are facing as a global community and pursue the quest for finding solutions. Yet the ability of the human race to react and understand the changes around us cannot keep up with the pace in which we alter it, leaving us confronted with a whole range of serious, intractable challenges of global importance. Recent trends, however, show no sign of a fundamental change in strategy. The current position of the dominant powers in global politics remains to preserve what they perceive as international security by securing their own national interests. With regards to the environment, this has led to the fact that the rapid and non-linear changes to life-supporting ecosystem services we currently observe are unprecedented in human history. The ‘international community’ has not succeeded in slowing down, let alone reversing, adverse environmental changes.¹ According to the United Nations Development Programme (UNDP), the development progress in the world’s poorest states might even be reversed within the next decades unless bold steps are taken now to prevent further global environmental degradation and conquer the deep inequalities within and among nations.²

According to the International Commission on Stratigraphy, we live in the Holocene – the era which began around 12,000 years ago after the end of the last Ice Age.³ The Holocene marks a period with unusually stable climatic conditions, which had (and still has) potent implications for the development of civilisations.⁴ However, some scientists believe that since the late eighteenth century we have been living in a new geological epoch marked by unprecedented human influences on the planet – matching major geological processes in their effect – the ‘Anthropocene’.⁵ Ever since we started burning fossil fuels, we have been modifying the whole world’s climate system. There is no denial that humans have changed planet earth on a global scale. This in turn, some scholars argue, should trigger a new way of perceiving our environment, as we live in ‘human systems, with natural ecosystems embedded within them’.⁶ The days of conquering nature are long gone. Today we, supposedly, decide ‘what nature is and what it will be’.⁷

However, it seems that so far we have not played the role of the earth’s stewards that well. This is mainly due to the popular (mis)conception that natural resources are endlessly abundant, the ecosystems perpetually resilient, and thus limitless economic growth a reasonable goal. Over the last decades, several reports and studies have been published to counter this argument and warned of ‘limits to growth’.⁸ The resulting – and still ongoing – debate between the two camps (pro-development vis-à-vis pro-environment) brought forth the idea that we need to follow the course of sustainable development, ensuring that we ‘meet the needs of the present without compromising the ability of future generations to meet their own needs’.⁹ While this noble aim found a high degree of attraction among scholars, policy makers and NGOs, it was not able to turn the boat around. Looking at the challenges we face from the local to the global level – e.g., famines,¹⁰ dramatic loss of biodiversity,¹¹ widening gap between the rich and the ‘bottom billion’¹² and global climate change¹³ – the idea of the sustainable society still seems to be illusive.

Recently, scientists have developed a framework of ‘planetary boundaries’, trying to help humanity to navigate the Anthropocene. Transgressing only one of the identified nine interdependent planetary boundaries might already trigger abrupt environmental change.¹⁴ The goal of the concept of ‘planetary boundaries’ is to ultimately shift the environmental management approach away from the current sectoral analyses of ‘limits to growth’, which attempt to minimise negative externalities, towards a more complex roadmap of the safe operating space for sustainable development, in order to avoid major anthropogenic global environmental change.¹⁵ Since, according to the scientists, we have already transgressed three of the boundaries (nitrogen cycle, biodiversity loss and climate change),¹⁶ the proposed reforms call for far-reaching constitutional changes of the global governance system.¹⁷

1.2 Water – the gossamer linking a whole web of securities

When looking at the challenges ahead and the planetary boundaries limiting our room for manoeuvre, it becomes clear that freshwater plays an integral part in the future of our development. Today, it is being widely acknowledged that water is not exclusively a local, national, or international issue which can be governed at any of those levels in isolation.¹⁸ Global interdependencies are being woven by the cross-cutting nature of water which makes addressing the global freshwater crisis cumbersome, as water interaction often cannot be separated from global trends and drivers. The challenges of freshwater management at any governance level are expected to become more intense in the future, as accelerated change creates new threats and interconnected forces increase uncertainty and risk.¹⁹

Water scarcity, droughts and floods already affect many countries around the world, with some of these events triggering local armed conflicts.²⁰ The resulting adverse impacts concern developed and developing states alike.²¹ Recent studies show the disquieting trend of increased overexploitation of freshwater in various regions around the world.²² There is no doubt that a shortage of safe water would impede the socio-economic development of any society.²³ Despite governments expressing political commitment, billions of people around the globe are denied access to clean drinking water and adequate sanitation.²⁴ Within a couple of decades, some two-thirds of the world’s population will suffer directly from lack of freshwater,²⁵ and water scarcity could reduce the annual global crop yield significantly (some estimate this to be the equivalent of all of the grain crops of the United States and India combined), which could wreak havoc against the predicted 70–90 per cent increase in global food demand.²⁶ Furthermore, freshwater systems are both hotspots for biodiversity and species endangerment.²⁷ Due to our remarkable ability to alter inland waterways – over 60 per cent of the world’s large river systems have become moderately or highly fragmented – we have dramatically changed the underlying ecosystems.²⁸ Not only does this loss of natural habitat accelerate species extinction further, it also affects vital ecosystem services such as purification of water, natural flood protection and provision of food.²⁹ Given that current trends in unsustainable development, climate change and water use show no sign of relenting, freshwater ecosystems will remain under threat well into the future.³⁰

New challenges related to the use and distribution of the world’s water resources abound around the globe, affecting local, regional and international dependent communities in a myriad of ways³¹ – threatening basic social, economic, political and environmental securities around the world. With the integral and finite nature of this particular resource, water must be considered the key component of ‘ultimate security’.³² Increased competition over increasingly scarce natural resources – with water being the most critical – is evoking a bleak outlook for the future where historical observations may be of little or no relevance. In some areas with high levels of water stress (including northern China, north-west India and parts of Pakistan), one can also witness high variability of freshwater supply from year to year.³³ It is obvious that the situation gets more precarious in places where the demand for water is already relatively high compared to availability; as well as in areas where low-water years are common. Rising demand and declining quality are being aggravated by climate change, population growth, urbanisation and, more recently, a global economy lacking financial resources. These combined forces could lead to what John Beddington, the former United Kingdom (UK) Government Chief Scientific Adviser, referred to as the ‘perfect storm’ of food, energy and water shortages.³⁴ How should we address this convergence of security concerns? The fact that the global water crisis is already reshaping foreign policy – and will do so even more extensively in the future – puts ‘water security’ high on the political agenda.³⁵

While elevating the concept of water security into global agenda-setting political circles has certainly helped raise awareness of the water crisis, water security still remains a concept that has been underexplored from an academic standpoint. This is mainly due to the various opposing definitions of the concept, depending on the motives of the actor (e.g., state official, NGO, or industry), the realm it is being discussed in (e.g., international relations, development aid, or economics), or the discipline in which the concept is being advanced (e.g., law, economics, political science, or environmental sciences). This is why the academic debate around water security is in dire need of more deliberate and extensive examination, in order to address the vagueness that currently surrounds the concept, and ultimately deepen knowledge and understanding of the contribution that a ‘water security paradigm’ can play in addressing the aforementioned global challenges. Not only is water a vital resource whose management deserves particular attention; it is also the main link between several other crises we are facing. Thus, by tackling water insecurity, we not only alleviate the global water crisis; we automatically contribute to addressing various other pressing challenges – such as food, energy and the environment.

1.3 The relevance of international law in addressing water insecurity

Acknowledging that we live in rapidly changing times facing social and environmental challenges of significant magnitude is a first step. While several scholars claim that humanity will always be able to count on its ingenuity and will invent itself out of crisis, we still need a roadmap for navigating the rough times ahead. Even though the use of technology can turn nature into an asset, this asset only has a potential value to society. In order to actually become of real value, regulatory frameworks – laws – must be in place. Only then can we prevent a ‘plundered planet’.³⁶ Furthermore, security as such is an important human value; and its provision is one of the main purposes of any legal system.³⁷ Law, then, must be regarded as a major instrument for the pursuit of security. Hence, our understanding of (water) security determines what we expect from the legal system in this respect – which kind of framework we want it to provide, and which goals we want it to advocate.³⁸

The difficulty in designing an effective legal methodology for water security, however, becomes apparent when one realises that not only is water spilling into various other matters; it also touches all levels of governance – from the local to the international. Around one-fifth of the world’s renewable freshwater resources are shared between countries, including 276 transboundary river basins – home to 40 per cent of the global population.³⁹ These basins cover more than 45 per cent of the earth’s land surface, while accounting for around 60 per cent of global river flow.⁴⁰ Those figures hint at the high level of interdependence; making it easy to imagine the dilemmas faced by basins like the Danube or the Nile, which are shared by 17 and 11 states respectively. Yet, even countries which are not directly reliant on transbo...

Table des matières

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• Acknowledgements
• 1 Introduction
• 2 Water security – conceptualising a buzzword
• 3 International law in the water security discourse
• 4 Hydrosolidarity – the answer to state-centrism?
• 5 Regional common concern – the legal foundation for common water security
• 6 Water security in Himalayan Asia
• 7 Conclusion
• Index