Journal of Energy & Natural Resources Law (JERL)

Transboundary waters across the globe face a polycrisis that threatens the communities within and beyond the shared watercourses. The 'community-of-communities' paradigm is introduced here and examined through the lens of international water law with a view to improving the peaceful management of transboundary waters. The study closes with observations on how a 'resilience framework' might help to address the emergent polycrisis in ways that support the 'community of communities' within and beyond transboundary watercourses.

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A ‘watercourse’ is defined as a ‘system of surface and groundwaters’ forming a unitary whole that flows into a common terminus. This gives a sense of separation between watercourses and the communities they are comprised of. Increased understanding of the connections between watercourses through the global hydrological cycle challenges this, possibly expanding the legal reach of international water law norms to encompass obligations erga omnes, those ‘owed to the international community as a whole’. After elaborating on how erga omnes norms are identified, this article discusses the potential for key international water law norms to achieve such status and its legal effects.

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Over the past few decades, international water law has faced an expansion of international regulations on freshwater protection. Positive law entails the protection of states’ water rights and obligations based upon territorial interests. However, the international legal order has evolved recognising a ‘holistic view of river basins’ premised on human rights, social justice and environmental values. Nevertheless, the application of ‘community’ has yielded varying levels of basin cooperation and integration of stakeholders’ participation in international basins. This article analyses the ontological underpinnings of ‘community’, and discusses: has the international community of states given rise to the ‘practice gap’?

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The existence of an international community of states, requiring institutionalised cooperation based on solidarity, is evident in several fields of international law, including economic, social and cultural (ESC) rights and disaster risk governance. International water law, however, employs a pervasive solidarity-based notion of community interest, which is given effect by means of a general duty of institutionalised cooperation. This sub-field, in which the interdependence of watercourse states is immediately apparent, has long embraced a ‘community of interest’ approach to transboundary water cooperation, which informs every aspect of the cardinal principle of equitable and reasonable utilisation, which is itself characterised by a deeply distributive conception of equity. Sustainable and optimal utilisation of shared freshwaters requires moderation of uncompromising ideas of territorial sovereignty, upon which states’ water-related entitlements have traditionally been founded. Solidarity amongst a community of watercourse states, based upon their substantive sovereign equality, regardless of their respective circumstances, plays a key role. It permeates international water law through, inter alia, a distributive conception of equity and the differentiation evident in expected standards of state conduct. Solidarity can shape cooperative transboundary water management, whereby the focus shifts from competing national interests to attaining optimised common benefits.

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The jurisprudence of the International Court of Justice consistently focuses on the ‘community of interest of riparian states’ when resolving its international water disputes, including those disputes of a bilateral nature. Contrary to the beliefs of some scholars, global community interests also do not feature in these cases. Using as its foundation a population census of all international water disputes before the ICJ, this article maps out how this court and its predecessor have handled these types of disputes. It suggests that non-global, riparian community interests prevail with these disputes.

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A key contrast between third-party dispute settlement procedures, such as adjudication and arbitration, and the types of implementation committees found within multilateral environmental agreements is that the former are adversarial and legal binding, whereas the latter are described as non-binding, non-adversarial, facilitative and collaborative. A comparison of the two options within a transboundary water context suggests that implementation committees have some advantages in handling the types of scientific and technical issues that arise in transboundary water disputes, and the collaborative nature of their work can be effective in reaching a common solution to the dispute. However, the legal and political context in which these disputes arise will ultimately dictate which option will be chosen.

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This paper examines the balance of sovereignty and water basin community interest through the development of states’ extraterritorial duties regarding the right to water. It traces the evolving legal notions of jurisdiction and extraterritoriality, specifically through the extraterritorial human right to water within a transboundary context. Through theoretical and empirical analyses, the study summarises progress and challenges encountered by international human rights law and international water law. It also identifies potential pathways for advancing the respect, protection and fulfilment of extraterritorial human rights to water. Looking forward, integrating extraterritorial human rights obligations with international water law obligations may facilitate the mainstreaming of state extraterritorial duties with respect to water, providing increased protection for communities across transboundary watercourses.

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The need for cross-border management of natural resources has led to the establishment of transboundary protected areas (TPAs) for watercourses. This article outlines the historical development of protected area tools applied to freshwater resource conservation. It examines five cases of TPAs for watercourses, including those in the Okavango Delta, San Juan River Basin, Lake Fertö, Mekong River Basin, and Xingkai Lake. However, managing TPAs for watercourses presents several challenges, such as conflicting governance systems, gaps in cooperation, and limited stakeholder involvement. The practices of marine protected areas (MPAs) beyond national jurisdiction provide valuable insights. To effectively serve the community of interest in transboundary freshwater resources, certain measures must be adopted. These include strengthening governance structures and management plans, enhancing integrated management through the ecosystems approach and facilitating a greater range of stakeholder involvement.

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Effective engagement of local communities in managing transboundary water basins is essential to sustainable development and water resources management. This paper explores how international law, including a variety of legal regimes from international water law to international environmental and human rights law, shapes public participation on transboundary water resources. A coherent legal framework secures substantive rights to water and supports its implementation via procedural rights: access to information, justice, and participation in decision-making. Using the Ili River shared by China and Kazakhstan as a case study, this article highlights the legal foundations that enable participation, identifies gaps, and suggests that solutions may lie beyond international water law.

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This paper examines how the water tenure approach can contribute to implementing international norms applicable to river basins. Traditional international water law predominantly focuses on state-to-state relations and allocation rights, often overlooking complex formal and informal relationships between communities and water resources. The water tenure approach systematically documents these diverse relationships, offering practical mechanisms for operationalising international norms. The paper demonstrates how water tenure assessments support implementation of international frameworks, including environmental flow requirements, human rights to water, Indigenous peoples’ rights, and corporate due diligence obligations. Despite implementation challenges, water tenure tools can facilitate more inclusive and adaptive transboundary water governance.

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