Legal Regimes for Transboundary River Basins

: Revisiting the Influence and Regulation of the Ecosystems Approach in International Water Law Treaties

Abstract

Rivers and lakes are an abundant source of services, which account for the wellbeing of populations all over the world. They provide freshwater for drinking and for irrigation and also serve as flood-control mechanisms. For many freshwater species, rivers and lakes constitute a habitat whereas for human beings, they serve as sources of recreation and spiritual enjoyment. These are just few examples of the many services freshwater ecosystems provide.

Unfortunately, human activity continues to impact the world’s river and lake systems, as the need for energy, food, and drinking water increases with growing populations. Furthermore, pollution through solid waste and river discharges continues to pose a major challenge in most regions of the world. The result is a significant reduction of the ecosystem services provided by rivers and lakes, at an enormous cost in terms of poverty, disease, biodiversity loss, and conflict.

The situation is more complex when dealing with transboundary rivers and lakes. Within the context of transboundary waters, there is a range of legal issues which have contributed to the current state of freshwater ecosystems. They vary from the absence of legal frameworks for transboundary rivers and aquifers to a lack of capacity and weak management structures, both at the national and at the local levels, to implement the existing agreements. But international water law can also be part of the solution; particularly by promoting ‘the integrated management of land, water, and living resources that promotes conservation and sustainable use in an equitable way’.

Traditionally the ecosystems approach has not been taken into consideration by legal experts and negotiators tasked with the difficult job of negotiating transboundary water agreements. The result is that the preferred means for countries to manage their shared water resources usually lack the sufficient tools and mechanisms for mainstreaming conservation and sustainability of natural resources into planning and management of transboundary rivers and lakes.

Therefore, the aim of this PhD research is to develop an analytical framework and criteria on how to incorporate the ecosystems approach into international water law treaties. The development of the analytical framework builds on the works of prominent international water law scholars, and takes into account State practice as well as the principles of the ecosystems approach as defined in the Convention on Biological Diversity.

The framework was tested as a rapid legal assessment tool in 46 international water law treaties, and as a full-fledged legal analytical framework in two case studies (Sixaola River Basin and Lake Titicaca Basin). The rapid assessment revealed useful lessons about the applicability of the legal tool, and the case studies provided interesting conclusions in terms of how hydro-diplomats can profit from a more ecosystem-friendly approach to international water law.

Furthermore, the results from reviewing the set of treaties confirm that States have experience in implementing elements of international water law and support the ecosystem approach in transboundary river basins. However, there are critical areas which consistently show that States have not considered these laws and principles when concluding transboundary water treaties, which is in turn reflected in legal gaps for most of the treaties. This evinces the discrepancy between legal and ecological systems.

The results of the case studies also show that, in the context of transboundary water legal regimes with different normative gaps for implementing the ecosystems approach, there is abundant secondary normative which does not have a transboundary water focus, but which can be used to fill in those gaps found at the treaty level.

Date of Award	2019
Original language	English
Sponsors	Scottish Government
Supervisor	Andrew Allan (Supervisor), Alistair Rieu-Clarke (Supervisor) & Francesco Sindico (Supervisor)