This lecture, for whose invitation I am deeply honoured, is inspired by the diverse communities which are vibrating around the needs and opportunities provided by water as one of the most sensitive natural resources for the existence and survival of the humanity. The idea to associate myself to this communication is an opportunity to acknowledge how timely it is to dig into the legal components of water governance as an integral part of our livelihood. Also, to scrutinize the studies devoted to water and the equitable and rational use criterion, in conjunction with other agreed principles in the ambit of transboundary watercourses.
One of the primary tasks of international law in this respect, is to induce better, technically based, and consistent policies about water and its sustainable use, considering its diverse users, sectorial applications and stakeholders involved. There is also the ambition to apply a coherent approach towards the planning and production sector, be it public or private. And besides, the considerations derived from the human rights dimension add substantive elements to look at the societal context in which this subject must be treated.
In the preparation for this lecture, one of the conducting threads of those ideas that persistently emerged has been the plasticity and centrality of the concept of sustainable development, and the strengths and gaps with which states and related subjects are implementing it, including in the framework of water management. It is uncontested that billions of people live in countries suffering from water stress and drought, and that agriculture is one of the multifaceted scenarios where this reality is more visible. Experts also say that agriculture holds substantial solutions to our critical times.
Along with this, the perspective of peoples who are actively working in agriculture, as well as those facing the impacts related to climate change and other phenomena, comes to our consideration, and helps us to discover where the integration of land and water becomes a turning point for domestic law and international law. This is a frame of reference for the forthcoming analysis. In this context, I would like to mention two facts that inform the current background of this subject:
- that on the average, 10% of the world population lives in regions with high or critical water stress. Besides, it is noticeable that the Vision Statement prepared for the United Nations 2023 Water Action Agenda underlined that a quarter of the global population – 2 billion people – use unsafe drinking water sources. And that half of the population – 3.6 billion people – live without safely managed sanitation, along with 1 in 3 people – 2.3 billion – lack basic handwashing facilities at home. Over 80% of wastewater is released to the environment without being treated or reused, while droughts could be the next pandemic.
In addition to these striking data, and according to the United Nations World Water Development Report 2023, water policymakers have had to proactively reach out to climate stakeholders to better understand how climate-led processes work, and to integrate water-related climate risks into national water policies, strategies, and implementation plans. Partnership and cooperation are proposed among the instruments to deploy in each geographical, political, and economic context. On the other hand, it is assumed that mitigation and adaptation policies in the field of climate change must integrate water-related climate risks into national water policies, and strategies. Water reuse and water positive actions are instrumental in this respect.
It is then widely agreed that water is essential for human beings and their livelihood. On this matter, as it is well-known, water as a substance, is also present in notions very central in the law of the sea.
In the law of the sea, water attains a fundamental dimension as a source of food, climate regulator and oxygen generator for us to breathe. Its governance, like in the case of the relationship between land and water is also a strategic part of the 2030 United Nations Agenda on Sustainable Development, adopted in 2015, and is one of the main concerns in the application of the United Nations Convention on the Law of the Sea (UNCLOS), and its implementing agreements. This is relevant not only for States but also for peoples and individuals, who are interacting with multiple dimensions in which water is one of the most relevant components. One of these scenarios is depicted by SDG 14, which present land–freshwater–oceans interlinkages and the impact on food security.
Another area in which the land and oceans interactions are visible is provided by the principles applicable to protection, and response on matters regarding the marine environment. A subject which is materially related to the overarching principle that “States have the obligation to protect and preserve the marine environment”. (Article 192 of UNCLOS).
Considerations regarding pollution from land-based sources and the duty to take all appropriate measures to prevent, reduce and control pollution caused by coastal disposal or by discharges emanating from rivers, estuaries, coastal establishments, outfall structures, or any other sources on their territories, is one of the pillars of the environmental regime for the ocean. This has been noted by States that have negotiated international agreements to deal with sources of pollution and activities, in the context of the Regional Seas Programmes. Noticeable is the obligation to undertake an environmental impact assessment as contained in the regional conventions on the protection of the marine environment from land-based sources, in compliance with the duty to “prevent, reduce, and control pollution”. In addition, some agreements refer to mitigation measures and to the goal of eliminating this pollution. A step forward towards addressing some of the issues associated to the climate change phenomena.
As a result, several categories of the law of the sea obligations are related to jurisdictional issues applicable to the marine environment, in particular, where sea waters are also interlinked with inland waters and with waters lying on the landward side of the baselines. Be they the mouth of rivers, deltas, estuaries, wetlands or mangrove zones. This means that when we are dealing with water and land in a terrestrial context, the interest in their uses go beyond the local area in which they are located.
It is relevant in this respect to look at the Convention on Biodiversity that includes specific references to the interaction between the ecosystems, including those where water provides unique services: estuaries and coastal waters, among others.
In addition, the remarks contained in SDG 14, on land–freshwater–oceans interlinkages and the impact on food, can also be read in conjunction with the conclusions of the United in Science 2023 Study, of the World Meteorological Organization, maintaining that extreme weather, increasingly of frequent occurrence, has devastating socioeconomic consequences. “Between 1970 and 2021, 11 778 reported disasters attributed to weather, climate and water extremes caused 2 087 229 deaths and US$ 4.3 trillion in economic losses”. Not to forget that the reduction of glacier mass and sea-ice extent is also related to this severe situation.
A priori, it seems that structural differences between the law of the sea and the water law regimes are also noticeable, whereas the former allocates competences among States on different zones, and the latter, mostly depend on the sovereign states capacities and abilities to regulate and enforce. In both scenarios, cooperation among States and the participation of relevant public and private partners, is necessary.
This is apparent when we read about the SDGs literature where subjects are mostly connected with water availability, management and uses, but not under a uniform or unified set of norms, while considering basic principles. In the 2030 Agenda itself, for example, SDG 2 refers to ending hunger and achieving sustainable food and agriculture systems (via increasing the proportion of agricultural area under productive and sustainable agriculture); SDG 6 aims at securing water and sanitation for all; SDG 13 aims at combating climate change and its impacts; and SDG 15 refers to sustainably managing terrestrial ecosystems. And there are also the target-level linkages that introduce water variables into the goals. Such is the case of SDG 1, commencing by ending poverty; SDG 5, achieving gender equality; SDG 7, ensuring access to sustainable energy; SDG 12, ensuring responsible consumption; SDG 14, on land– freshwater–oceans interlinkages and the impact on food security; and SDG 17, revitalizing the role of partnerships.
This is one of the most relevant discussions contained in the analyses and indicators of the State of the world’s land and water resources (SOLAW) Report 2021, on Approaching the state of the world’s land and water resources for food and agriculture: Systems at breaking point.
The legal perspective goes along with these subjects, all of which denote the appeal to envision a scenario in which human behaviours must contribute to achieve a water framework modelled by agreed policies, susceptible to be measured by indicators and guided by authoritative decisions, considering diverse contributors.
