Trends of Development of International Water Law

International water law has been witnessing profound changes in the latter twenty years. These changes denote certain cardinal options for new goals and values that the newer international water law is seeking to embrace. Amongst these new goals and values, the ones of environmentalization, humanisation, economicisation stand out as attempts at bringing efficient response to the challenges set by the current global water crisis and the more complex expectations of the international community. They amount to an innovative normative message and even true paradigmshifts in the understanding of international water law. These trends of development of international water law set this legal field in line with other chapters of contemporary international law and derive in part from the cross-fertilisation of normative ideas and principles between these chapters of international law.


Introduction
After a few decades of a rather lethargic state, corresponding to the attempt at codifying it-undertaken, particularly, by the International Law Commission 1,2 , and marked by a rather schizophrenic debate over the prevalence of two water sharing principles 3 , simplistically seen as competing: those of the equitable and reasonable use of international watercourses and the obligation not to cause damage, also known as the no harm prin-reality of water bodies as it really happens: in its multiple interconnections and unitary complexity-of (nonconfined) groundwater with surface water8 , of the watercourses with other biota and ecosystems 9 , with the land mass 10 as well as with marine waters 11 .Several legal documents advocate that catchment areas or other analogous integrating concepts be used as the water management units 12 .This then permits and facilitates a more realistic or effective legal discipline: one where development of water is not any longer the sole goal pursued, but where instead development becomes integrated with the goal of protection of water 13 ; one where, therefore, only sustainable development is lawful.Protecting the environment or ecosystems of watercourses, water quality, as well as the fight against diverse forms of pollution, thus become main concerns and normative areas of the newer international water legal disciplines 14 .Correspondingly, the scope of the obligations comprehended is equally enlarged: beyond obligations of mitigation and minimization or reduction and control of harm 15 -of risks 16 , even-there are now obligations of prevention of impacts, of precaution 17 .They all explain the consecration of procedural duties, ranging from notification of planned measures to consultations and negotiation 18 , from simple obligations of access to information to a general duty to perform environmental 19 and strategic impact assessments, sometimes ex post even 20 .This wider approach becomes the more necessary as one acknowledges the crucial relevance of water in the ongoing conditions of scarcity 21 and climate change 22 .Both realisations call for actions and measures 23 that have a broader and cyclical time reference.These developments are in line with the concept of integrated water resources management as defined by the Global Water Partnership and based on the 1992 Dublin Statement on Water and Sustainable Development.

The Humanization of International Water Law
International Water Law has equally been witnessing a move towards including more legal personae within the remit of participating legal subjects.
This move concerns its traditional legal subjects, first: the States, the riparian States.Increasingly, the new international water law advocates that all those States, riparian to a particular shared watercourse, participate in the corresponding legal discipline 24 , thus matching at this level an effort at ensuring that the said legal discipline corresponds to reality, and that it therefore may prove more efficient.Moreover, in a few instances, international law equally calls on the participation of coastal States adjacent to the riparian ones25 , in a legal development which again evidences an attention to natural reality and the real dynamics of impacts.
Secondly, the newer international water law equally concerns intergovernmental organizations and institutions of very different structures and functions 26,27 .Their establishment or revival28 reflects the perceived need of States to enhance cooperation to manage shared water resources over several territories29 .Their existence facilitates the recurring dialogue between the riparian States as to the activities that each of them purports to promote within its jurisdiction, particularly with regard to the sharing of rights and benefits deriving from the development of the waters as well as the prevention, reduction and control of risks of damages.They especially allow for an institutional process of communication, made of different procedural acts which permit the assessment of the effects of planned or existing measures or projects 30 .Finally, they also enable the carrying out of joint activities.
Most noticeably, different legal instruments31 recommend that river/watercourse commissions be set up or that their experience is used 32 in the daily effort of implementing but also developing primary regimes 33 .In some cases, international organizations or international commissions are equally called to complement the action of the States (by providing financial and technical assistance34 , or working as instances for the prevention and settlement of disputes35 ) 36 .
Additionally, these organisations and institutions are sometimes also the platform for other non-governmental actors to intervene; like environmental, human rights' or governance NGOs, as well as epistemic communities, companies and individuals.All of them, thus thereby find their way to voice their concerns, grievances, interests, information, expertise 37 .Simultaneously, they obtain some legal status in the processes of decision-making or adjudicating the manifold issues of water management 38,39 .
The whole movement reaches its climax once international law engages into its humanization-firstly, by recognizing procedural rights of access to information 40 , participation in decision-making and in administrative decisions relating to the environment as well as the judicial appeal against such decisions, and rights of participation in impact assessments as well as in the aforementioned institutional water platforms.The 1998 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters 41 , in the UNECE universe, stands out in such context as a prominent illustration 42,43 .
The humanization of international water law is evidenced then, in the adoption of a human right to water and sanitation 44 , which corresponds to the satisfaction of the most basic human needs 45,46 and overcomes a blatant lacuna of the International Bill of Human Rights.Initiated with General Comment n˚ 15 of the Economic and Social Council 47 , the process of consolidation 48 of such double right gained momentum in 2010, by the adoption of corresponding resolutions by the General Assembly of the United Nations 49 and the Human Rights Council 50 .These documents 51 mainly anchor such right 52 of multifaceted content 53 in the remit of economic, social and 37 With the "privatisation" of assistance ensuing from the 1992 Rio Conference, the Monterrey Conference, but especially the Johannesburg Summit, the private sector also helps in the financing of implementing projects and legal instruments-usually in partnerships between governments and civil society groups. 38See Mekong River Commission for Sustainable Development, 2005. 39A pivotal role is frequently played by these institutions' secretariats. 40See e.g., Sand, 2003. 41 See McAllister, 1998. 42See United Nations Economic Commission for Europe, 2000. 43Similarly, in the African context, the African Convention on the Conservation of Nature and Natural Resources. 44See Albuquerque, 2013. 45 The consideration of human needs in the development of international water law predates the recognition of the human right to water. 46It is important to realise that the human right to water and sanitation is linked to the satisfaction of personal and domestic needs, and thus to some privileged uses of water, in particular those related to household and personal uses.It therefore does not pertain to the whole spectrum of other usages, such as industrial, agricultural, fishing, navigation, hydroelectric uses or those related to the protection of the environment, irrespective of the close links existing among them.General Comment No. 15 (2002) of the Economic and Social Council, "The Right to Water", UN Doc E/C.12/2002/11 of 20 January 2010. 48Other milestones in the process, even prior to General Comment No. 15, are the UN Mar del Plata Action Plan of 1977, the Dublin Statement on Water and Sustainable Development of 1992 and Agenda 21.Also international treaties contribute to defining aspects or beneficiaries of this right: in particular, the Convention on the Elimination of All forms of Discrimination Against Women (article 14 (2)), the Convention on the Rights of the Child (article 24 (2)), the Convention on the Rights of Disabled Persons (article 28 (2a)).Equally noteworthy are the Draft Guidelines for the Realization of the Right to Drinking Water Supply and Sanitation adopted by the Sub-Commission on the Promotion and Protection of Human Rights, in 2005.Besides human rights instruments, also those relating to the law of international watercourses contributed to the emergence of the right: particularly, the Protocol on Water and Health, the Charter of Water of the Senegal River, the Water Charter of the Niger Basin and the Charter of Water of Lake Chad. 49Resolution 64/292 of the UN General Assembly, "The Human Right to water and sanitation", UN Doc A/Res/64/292, of 3 August 2010. 50Resolution 15/L.14 of the Human Rights Council, "Human rights and access to safe drinking water and sanitation", UN Doc A/HRC/15/L.14 of 24 September 2010. 51Beyond the conceptual and even interpretative differences between the different normative instruments, as to the legal scope of the right, content, field of application and application (see Caflisch, 2011), they all recognize the importance of this right and share a vision or general objective: the one of achieving access to safe drinking for the human beings and obtaining access to sanitation systems.This objective mobilized legally and politically different actors and set the framework for seeking effective implementation and realization of this right, a formidable endeavor in view of the realities in the field (see WHO and UNICEF, 2010).In this latter regard, certain initiatives stand out for their contribution to the advancement of the aforementioned general objective: namely, the decision of the Human Rights Council in 2008 (by Resolution 7/22) to appoint an Independent Expert on the issue of Human Rights relating to access to drinking water and sanitation , who became in 2011 (by Resolution 16/2) the Special Rapporteur on the Right to safe drinking water and sanitation-it established the right to water and the reports of the Special Rapporteur helped refine the contents thereof (see Albuquerque, 2012); also noteworthy are the calls by the Human Rights Council for States to implement this right. 52Some instruments formulate this right as an autonomous right, while others link it to other rights and even make it derive therefrom: for instance, with the right to life and as a prerequisite for the realization of all human rights (e.g., Resolution 64/292 of the General Assembly), the right to an adequate standard of living and the right to the highest attainable standard of physical and mental health as well as the right to life and human dignity (Resolution 15/L.14 of the Human Rights Council).General Comment No. 15 also derives the human right to water from the right to an adequate standard of living and considers that it is "inextricably related to the right to the highest attainable standard of health and the rights to adequate housing and adequate food".cultural rights-a qualification, which renders these rights, ones of a progressive realization 54 .Be as it may, it equally implies a certain number of consequential obligations for the States, namely obligations to respect, protect and fulfill 55 .Amongst other duties, they call for the States' supplementary regulatory working.It is equally certain that the human right to water does not hinder the State to perceive payment for the services rendered.This applies, moreover, to not only the State but also other actors, which may, in particular, intervene in the provision of water services or waste treatment services 56 .This intervention seems justifiable: not only because the right is neutral as to the economic model adopted by the State as to such vital public services, but also because momentous investments seem indeed to be in order for rendering this proclaimed right a true reality.In any event, the interface between this right and a kind of water management more economically-driven is, doubtlessly, one of the areas where international water law may need further development and clarification.

The Economicisation of International Water Law
The third vector of renewal of international water law contends with the integration of the economy and its international legal disciplines.The departing point is parallel to the ones seen in regard to the aforementioned strands of evolution of this body of rules: besides being taken as an environmental good, and a pole for legally empowering a diverse host of actors, and particularly for accrediting human rights, water is also more and more apprehended as a commodity, as an economic good 57 .
This development is propitiated by several factors: the widespread awareness of water scarcity and unequal distribution 58 , leading to a mounting demand for the resource as well as a rising capacity to dispose thereof over time and space 59 .
Such developments then lead to elucubrations whether water or the service of its provision gains in being set in a market context 60 , attached a "rationalizing" price tag 61 .It is equally questioned whether there is merit in trading bulk water 62 besides increasingly conveying it across space from "water-rich" to "water-poor" areas 63 , as well as collecting it from the natural milieu, bottling it and selling it in a growing market of water "products" 64 .This approach is epitomized in some policy documents from the nineties of last century, like the Agenda 21 65 , the Dublin Declaration 66 or the World Water Vision of the World Water Council 67 .
Similarly, an apparently growing stream of legal thinking seems to be devoted to wondering whether there may be merit in applying international trade law (and the WTO agreements, GATT and GATS foremost) 68 as well as international investment law (the myriad of regional agreements and BITs) 69 , as well as the corresponding institutions, to relevant water operations and what may be the consequences of such course of action.
More specifically, this rather creative or "outside-the-box" legal thinking is concerned, firstly, in regard to the trading of bulk water products, whether water may be treated as a "good" 70 , a "product" 71,72 .It wonders, next, whether there is anything specific to water 73 , justifying, if not imposing, that these principles governing international trade be derogated (the principles of most favored nation, of non-discrimination) or instead that it compels certain water-rich countries to envisage exporting water resources in abundance 74 .Were the GATT disciplines deemed to be applicable 75 , another line of enquiry is what would the margin of maneuver for an exporting State mindful of the necessity to follow a precautionary approach in the management of its water resources be 76 , so as to avoid violating GATT obligations aiming both at reducing tariff barriers and quantitative restrictions on trade as well as to remove any national measure that discriminates against domestic products vis-à-vis imported products 77 ; whether in its managerial policies of environmental protection or driven by social considerations, such State could be comforted in the excepting clauses of Article XI. 2(a) and, particularly, Article XX of GATT 78 . 70This has to do with the fact that GATT applies to goods, a concept which is not defined but which seems to relate to a moveable thing which may be traded on a market. 71Again this is an undefined operational concept determining the application of the GATT disciplines.It implies that something is produced as a result of a natural process or human operation, human intervention.Another element of the definition is the one of the attribution of a price.See Haan, 1997;Cossy, 2005b. 72 In a 2000 report on the Protection of Waters of the Great Lakes, the International Joint Commission between Canada and the United States stated expressly the view that water in its natural state is not a product or commodity.IJC, Final Report to the Government of Canada and the United States, Protection of the Waters of the Great Lakes, 2000.This view was reiterated in the 2004 report, where the International Joint Commission recommended that "both governments take steps to allay fears that Great Lakes water could be treated as a commodity" and again insisted on the idea that WTO rules do not affect the protection of water in its natural state.IJC, Review of the Recommendations in the February 2000 Report, Protection of the Waters of the Great Lakes, 2004. 73The condition of natural resource and the fact that so many social expectations are attached thereto are considerable elements in such debate.As the WTO concluded in the World Trade Report 2010 on trade in natural resources, "WTO rules were not specifically drafted to regulate natural resources trade and may not always respond adequately to the specific features of this sector".WTO, World Trade Report: Trade in Natural Resources, p. 203. 74The debate is particularly intense in regard to Canada.It explicitly involves the questioning whether the trade regimes of the WTO and in special the North American Free Trade Agreement (NAFTA) deny the right to limit water exports in respect of other members of the NAFTA and instead require the "water-rich State" to export its water as a tradable good, despite the risk that this poses to this State's control over the management and preservation of the water resources.See Baumann, 2001; Maravilla, 2001; Anderson, 1999.75   Canada, the United States and Mexico have expressly addressed the issue of the application of NAFTA to water, in 1993, by making a joint statement which reads: "The NAFTA creates no rights to the natural resources of any Party to the Agreement (…).Water in its natural state in lakes, rivers, reservoirs, aquifers, water basins and the like is not a good or product, is not traded, and therefore is not and has never been subject to the terms of any agreement".Reprinted in Brown-Weiss, Boisson de Chazournes, & Bernasconi-Osterwalder (eds.), 2005.On its one side, Canada insisted that water in the natural state should be excluded from the application of trade agreements, by having the Ministry of Foreign Affairs and International Trade, unilaterally declare that: "Water in its natural state can be equated with other natural resources, such as trees in the forest, fish in the sea, or minerals in the ground.While all of these things can be transformed into saleable commodities through harvesting or extraction, until that crucial step is taken they remain natural resources and outside the scope of the trade agreements".Department of Foreign Affairs and International Trade, "Paper on Bulk Water Removal and International Trade Considerations". 76Brown-Weiss calls a particular attention to the interplay of this approach and the uncertain long-term effects of climate change.See Brown-Weiss, 2005. 77 Particularly at stake seem to be articles I (a water-exporting State would have to extend its "benefits" to any other State, so as not to violate the principle of most-favoured-nation treatment); III (a State that would be engaged in transfers, concerning water within its borders, would have to treat national and foreign competitors alike, for the national treatment principle); XI (although the rules on measures of export tariffs are less detailed than those on exports, its paragraph 2, in particular, seems to allow State water exporters to establish prohibitions or restrictions on transfers of bulk water "to prevent or relieve critical shortages or foodstuffs or other products essential to the exporting contracting party", such as droughts, effects of industrial accidents, natural disasters or other emergencies, these measures have to be temporary and only to prevent a critical situation); XX (setting the conditions for allowing States to implement national measures which, under certain conditions, are inconsistent with other provisions of GATT). 78In what concerns freshwater, the two openings or exceptions that seem to be relevant are those contained in sub-headings (b) and (g).Under the former, a State may maintain a measure otherwise inconsistent with other GATT provisions if that measure may be taken as "necessary to protect human, animal or plant life or health".In view of some case law concerning disputes before the Dispute Settlement Body of the WTO, it does not seem crucial that these actually versed on import restrictions on products-it seems possible for a State to argue for taking measures to restrict the export of water for environmental purposes and to protect the ecosystem of water resources: the State would thereby be seeking to protect human health and the preservation of flora and fauna.Additionally, to determine that a measure is "necessary" to achieve a specific goal, recourse must be made to the WTO case law: it indicates that the term "necessary" is not limited to meaning "indispensable" but also encompasses "promote".Moreover, it equally implies that the "common interests" and "shared values" pursued by the measure must also be taken into account.The protection and conservation of water seem to be a good example of such vital common interests.Under the latter, a State may adopt measures "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption".Since WTO case law indicates that "renewable" resources may fall under the concept of "exhaustible natural resource", there would not be a problem, it seems, in applying the notion and the provision under article XX (g) to water.For a measure adopted by a State to be justified under Article XX, it is still necessary to meet the requirements of the "chapeau" of this provision.In particular, domestic measures must not constitute "a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade".At stake, in the very clarification made by WTO case law, is "rather the manner in which the measure is applied" (US-Gasoline, Report of the Appellate Body, para.22.On Article XX's "chapeau", see Gaines, 2001.Equally, it is asked whether it would be sensible to depend on the adjudicatory mechanisms of the WTO dispute settlement system for pursuing such policies 79 . In regard to water and wastewater services and the applicability of GATS, the main queries regard, besides classification issues 80 , the possibility of carving out water public services in case of opening up the market to other foreign or domestic service providers 81 .Alternatively, it seems important to assess the usefulness of the reasons that article XIV of GATS provides, permitting derogations from the State's specific commitments, and, more largely, the extent of regulatory powers, which the host State may safeguard in the name of the pursuance of the public interest.Another provision with relevance is Article XIII of GATS, which sets out that the obligations of most favored nation treatment, market access and national treatment do not apply to "laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale".If the contracts between public authorities and private water companies can be characterized as "government procurement", then the GATS regime (the obligations of most favored-nation, market access and national treatment) does not apply either 82 .It does not seem, however, that the concession contracts or build-operatetransfer contracts that are frequently used for ensuring water services should be considered public procurement 83 .
In substantive connection to such debate, albeit not in terms of the legal instruments at stake, appear the discussions on investment solutions in the water sector.They derive from the apparent growing recognition of the financial crisis of the State.This financial crisis leads the State to rethink the priorities and engagement in the economic sector and, in particular, in the water area, towards catering technical expertise and financial assets through multiple forms of privatization of services which had previously axiomatically been seen as publicnamely by engaging sometimes very powerful multinational enterprises willing to offer such services on an economic profit logics; as it drives the State to opening up to foreign direct investment, usually protected by the body of rules of international investment law and its mechanisms of dispute settlement, often relying on international arbitration.In spite of its close proximity, whereas the former debate on market liberalization systematically pertains to WTO law instruments and the GATS regime in particular 84 , this latter one, for the lack of an investment dimension in the WTO agreements, rather has its systemic legal "seat" in the area related to the hundreds of regional and bilateral investment treaties.
The main issue debated relates to the host State's regulatory powers in view of the obligations to protect international investment and the mechanisms for the State to protect public interest in regard to private sector participation in the economic management of water.The effort is at striking the right balance between the powers seeking the protection of public interest and serving corresponding obligations like those correspective of a human right to water or those related to the protection of the environment, on the one hand, and those directed at the protection of international investments, on the other hand.A number of awards through ICSID dispute settlement 85 may be viewed as indicative of progress in such direction 86 .

Concluding Remarks
The protrayed newer leanings or trends of development of international water law reveal an effort at holistically 79 It would appear that disputes about the allocation and use of water, as well as about the legitimacy to protect ecosystems and the ecology would be made by bodies more prepared for and attuned to trade considerations.Discussing this issue as other "reasons not to apply the GATT 1994 to water in its natural state or to bulk transfers", see Brown-Weiss, "Water Transfers and International Trade Law", in Brown-Weiss, 2005. 80 Like the harmonized system of GATT relating to products, there is a classification list of services set by the WTO Secretariat, which is not mandatory but used by States to develop schedules of commitments in the liberalisation of markets.It does not contain any separate category for services related to water, but some of the sectors considered do contain references to activities related to water, like environmental services and sanitation, for instance. 81The question is whether it is possible to argue that these water services fall under the provision of article I:3(b) which establishes that "services supplied in the exercise of governmental authority" are excluded from the scope of the GATS.These are defined as being supplied "neither on a commercial basis, nor in competition with one or more suppliers".The thorny issue is the determination of the relationship between "public service" and "governmental authority": they can certainly not be interpreted as synonymous.It might equally be possible to argue that services of water distribution stand as a public monopoly.In such case, GATS would apply. 82 apprehending and giving normative response to a more complex reality of problems and social expectations than those that used to be addressed by the old international water law, centered on the pure regulation of the uses of water.The changes involved are diverse and numerous.It seems however possible to identify some common threads underlying all the changes and trends identified.A first one is the move towards establishing a creative interface between the traditional core of this body of principles and rules dedicated to water and those other disciplines of international law which more directly address the concerns with the protection of the environment, social equity, and a sensible weighing of the economic values.Internormativity is thus one of the keys for understanding the evolution of international water law and the vigor thereof; the normative dialogue generates cross-fertilisation and renovation of international water law.Another one is the implicit sense of urgency that these proposed changes and trends carry, corresponding only to the magnitude of the global water crisis.These changes are definitely momentous, as the newer law became much more complex in the normative responses pursued.They are not however deprived of an underlying vision: on the contrary, the newer international water law announces decisive cardinal options, pursues shared goals, honours certain values, follows principles which lend heuristic and interpretative sense to the reconstruction of this legal field.In the whole, the changes thus amount to true paradigm-shifts (Kuhn, 1962).But this realisation also alerts us to the uncertainties that are still involved in the progress of international water law.It is of the very nature of paradigm-shifts themselves that they comprehend ambiguities and even elicit resistance.The uncertain harmonisation of the trends for environmentalisation and humanisation of water, on the one hand, and its economicisation, on the other, is in this regard telling.To this, one should add the realisation that these developments are an ongoing process: new problems seem already perceptible in the horizon-"climatising" international water law, adapting it to the challenges of climate change seems to be one of them.Another one is the struggle to render the whole movement of "legalisation" or more and newer law-making, a living reality: ensuring that the newer normative messages are complied with, should also become one of the major tenets of the evolution of international water law.Assessing the past but also looking ahead, one can not but be reminded of the works of Sisyphus.
Cossy, 2005a.83Cossy,2005b.  8not mention privatization or demand that the water services suppliers are public or private-article XXVIII does not indicate any preference.85Namely, in the Aguas del Tunari v Bolivia ICSID Case No. ARB/02/3, in the Suez, Sociedad General de Aguas deBarcelona SA and Vi- vendiUniversal SA v Argentine Republic ICSID Case No ARB/03/19, in the Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania ICSID Case No ARB/05/22, and in the Azurix Corp v Argentine Republic, ICSID Case No ARB/01/12.