The watercourse is a natural phenomenon and a unit of management in international water law. As a legal term it encompasses, in accordance with the UN Watercourses Convention art. 2, the system of surface water and groundwater which by the virtue of their physical relationship constitute a unitary whole.
As the existence of transboundary harm has long been recognized, together with the mutual influence of different uses and misuses of natural resources, there might be reason to question the watercourse as unit of management. Is it sound to isolate the watercourse from its natural surroundings and manage this as a separate legal unit? Is the emergence of new actors and participants on the international legal arena sufficiently preserved in the traditional watercourses law, or does this development necessitate a reformative change in the paradigm of water governance? Can we talk about a third era of water management?
The objective of this paper is to examine the requirements of modern watercourse management, and suggest alternatives to the traditional approach -- could, for instance, the community of interest-approach or the ecosystem approach contribute to a more integrated management?
The paper will compare the traditional paradigm of water management, where sovereign States cooperate over a river basin, with recent developments in modern international law and world politics, in order to see whether the former can respond properly to these developments or whether there is need for reform.
In this process, the paper will examine alternative approaches to watercourse management -- the community of interest and ecosystem based management -- and point at the benefits and disadvantages these approaches together can offer to the governance of international fresh water resources
RESULTS AND DISCUSSION
Evolving elements of international law challenges the river basin as unit of management and raises two main concerns for international watercourses law. Firstly, new actors, like individuals and non-governmental organizations, are gaining international legal personality.(1)(2) Due to the very nature of water and its vital importance, there is a constant demand for broader participation in the management of international freshwater resources.(3) The traditional paradigm of watercourse management responds to a more positivist understanding of international law -- a bilateral approach - that does not take these developments fully into account.(4) Secondly, the watercourse or river basin as unit of management isolates the resource from its surrounding element and creates an artificial separation of interconnected resources. The increase of transboundary harm and global consequences of climate change necessitates integrated management of natural resources.
In response to these challenges, turning towards the theory of the community of interest in international watercourses could enlarge the scope of management vertically, by including new categories of participants and a different management structure. During the last couple of decades, there has been increasing recognition of the need for flexible and holistic management regimes that encompass more than the isolated river basin. This development has largely been motivated by the evolvement of the concept of ecosystem management, which ensures holistic and sustainable management of natural resources. Redefining the unit of management -- from the limited river basin to the comprehensive ecosystem - will enlarge the scope of water management horizontally.(5)
The Community of interest approach and the ecosystem approach are both based on the management of one larger unit, meaning that State borders to a large degree are disregarded as administrative and sovereign delimitations and that the involved actors cooperate closely in the management, development and preservation of the resource. Both approaches are constructed upon the idea of the inter-relationship between all elements within the watercourse or ecosystem and holistic management. Both approaches would also encircle an almost identical geographical area, comprising the whole ecosystem and all parties that would be affected by or would be capable to affect its utilization.
The river basin, as the tradition unit of management, appear limited and constrained when confronted with the challenges and developments of modern international law. Managing the ecosystem as one unit gives a more accurate comprehension of the relationship between the different actors that form a community and between the different natural components. This requires a redefinition of the unit of management, of the participants to the managing community, and of the interests that unite them.
When encountering modern international law, traditional paradigms of water management are becoming limited. Today's world politics and international law call for a different approach: a redefinition of the horizontal -- geographical -- delimitation of the management, as well as the vertical -- normative -- determination.
Combined, the Community of Interest-approach and the ecosystem management approach would focus on the whole natural system of which the watercourse is a mere component while also expanding and redefining the participants in the cooperative community and the interests that unite them.
It is time to take a normative step towards a more integrated and holistic management of international watercourses, and these two approaches might assist us in creating a new and better paradigm -- a third era - for international water law.
Julie.firstname.lastname@example.org Tomasjordnes 53-501, N-9024 Tomasjord, Norway Tel: 0047 90102491 (1) Higgins, Rosalyn (1985) Conceptual thinking about the Individual in International Law in International Law: A Contemporary Perspective, ed. Falk, Richard; Kratochwil, Friedrich; and Mendlovitz, Saul H., Westview Press
(2) Peters, Anne (2009) Membership in the Global Constitutional Society in The Constitutionalization of International Law ed. Klabbers, Jan; Peters, Anne; and Ulfstein, Geir, Oxford University Press
(3) Charnovitz, Steve (2006) Nongovernmental Organizations and International Law, American Journal of International Law 100, no. 2; Maragia, Bosire (2002) Almost There: Amother Way of Conceptualizing and Explaining Ngo's Quest for Legitimacy in International Law, Non-State Actors and International Law 2, no. 1
(4) Simma, Bruno (1994) From Bilateralism to Community Interest in International Law Recueil des Cours 250: Collected Courses of the Hague Academy of International Law, Martinus Nijhoff Publishers.
(5) Howden, Julie GjÃ¸rtz (2014) From Economy to Ecology in the Management of International Watercourses in Second Contemporary Challenges to International Environmental Law ed. Dine, Masa; and Sancin, Vasilka, GV Zalozba.