Water law in a globalised world - Philippe Cullet discusses the need for creating a new framework

1. Introduction

With the exception of cooperation over international water courses, most laws related to water have regional and sectoral focus. Water law also assumes a certain - fictitious - control over water at the national or state level. While it has been understood for some time that all water forms part of the global cycle, climate change with its potential to alter the water cycle now makes redefining water law and policy inevitable.

This paper argues that the necessary complete rethinking of water law needs to include the following:

• Integration of water regulation from the local to the global level
• Recognition of  water as a source of life
• Interlinking with other areas of law, especially human rights and environmental law.

2. Context for rethinking water law

The gradual evolution of water laws over centuries has led to their remaining highly fragmented, sectoral and not responsive to new knowledge about water. Similarly, there is very little cooperation between states. The need for this drastic shift in our thinking of water law rises due to the following factors:

Emphasis on rights of appropriation

Most national laws focus on asserting sovereignty over water. This perspective is evident in the laws are written today. Land-based water rights give de-facto control of water to individual entities, whether citizens or nation states.

Sectoral nature of national water laws

 Water laws have been installed as reactions to specific challenges. This has meant that these fail to take a unified view of water, with all its complexity of source, nature, and use. A glaring example of this is that surface water and ground water continue to be governed by separate laws that do not acknowledge the ephemeral nature of the distinction.

Disconnect between national and international law

This reactionary nature of law has also led to a distinction between domestic and international law, largely because of the difference in global and domestic issues. While domestic concerns tend to be about the availability of drinking water, this is not reflected in international law.

3. Rethinking forms of control over water

There is a need to move away from the focus on establishing sovereignty over water to recognising water to be a common human heritage

National level - The public trust doctrine

Some states, including India, have recognised that water is a public trust. However, this recognition does not lead to a retrenching of the laws that grant the state absolute control over water. 

International level: The principles of common concern and common heritage of humankind

A major challenge to the proposed shift in thinking about water lies in the commonly held misconception that a state's sovereignty is threatened by its relinquishing absolute control of its natural resources. Negotiations over transboundary issues such as climate change and biodiversity may help to reassure states of  sovereign control.

4. Towards and integrated and comprehensive water law

As the connections between various parts of the laws governing water become apparent, it is to be expected that countries will move towards a sectorally integrated water framework. It is also necessary to integrate different areas of law that share common concerns. This paper makes a case for integrating water, environmental and human rights laws.

5. Conclusion: conceiving water law from the local to the global level

The author emphasises that there is a necessity, made urgent by climate change, to rethink the basis of water law. A shift from appropriation of water, to managing it as a heritage is necessary. Similarly disconnect between the various sectors of water law, as well as various levels need to be bridged. 

Download the entire paper here.