On January 12, 2023, Professor Laurence Boisson de Chazournes, holder of the Avenir Commun Durable Chair for the 2022–2023 academic year, delivered her opening lecture at the Collège de France, titled “Water in International Law: Between Singularity and Plurality .” Among the ideas she explored, she highlighted the relationship between equality and equity in the context of transboundary water resource use.
The text below is an excerpt from her lecture. The full text can be found at the end of this article or on the Collège de France’s YouTube page.
“One of these principles [of river management], if not the cardinal principle, is that of the equitable and reasonable use of an international watercourse. This principle emerges in practice, alongside the obligation not to cause significant harm. Both are first enshrined in national laws to promote good-neighborly relations. Applied to the context of relations between states, it is this same spirit of good neighborliness that is intended to guide the management of an international watercourse—namely, to avoid causing significant harm, while ensuring that all riparian states can use the waters of the international watercourse. It is recognized that each riparian state must be able to benefit from the uses of the watercourse and the benefits derived from those uses. Each riparian therefore has the right to assert their entitlement to enjoy these benefits. However, the terms of allocation must be based on the principles of equity rather than equality. Economic, hydrological, historical, prospective, and social circumstances must form the basis of this principle of equity.
Equity—a concept that is, to say the least, difficult to grasp—is the key principle. It is linked to what is just and what is proportionate. Equity must be assessed in specific situations, on a case-by-case basis. It is primarily up to the interested riparian parties to agree on this equitable allocation. Political rivalries are often a source of deadlock and can jeopardize the possibility of an agreement or, failing that, allow a status quo to persist, which may then escalate. In such situations, it is necessary for third-party actors—whether individuals or institutions—acting in a diplomatic or judicial capacity to prevent a tense situation from escalating, either by enabling the parties involved to reach an agreement or by rendering a final judgment. It must nevertheless be borne in mind that it can be difficult for a judicial third party to rule fairly when factors such as differing perceptions, diplomatic considerations, insufficient knowledge, or a lack of mutual trust act as obstacles to reaching an agreement. It would often be necessary to resort to confidence-building measures that a judge or arbitrator cannot employ. A “diplomatic third party” who enjoys the trust of the parties would undoubtedly be better positioned to inform and enlighten the parties regarding the issues at stake and the possibilities for agreement. In this context, it is worth noting the success of the good offices of World Bank President Eugene Black, conducted during the 1950s, which led to an agreement on the Indus River between India and Pakistan in 1960. This success holds a prominent place in the annals of diplomacy. It is an initiative that deserves to be replicated in the context of other river basins.
For a long time, the principle of equitable and reasonable sharing was rooted in a perspective of abundance—abundance in the sense that restrictions on water use had no place. The assumption was that there was enough water, which allowed for the allocation of uses as they arose; these uses were simply added together. Various developments during the latter part of the 20th century led to a reevaluation of this assumption. It became necessary to manage water more effectively, to manage it within a temporal framework that links the present and the future, and that balances environmental protection with water uses.
Over-exploitation of resources and the impacts of climate change, in particular, are putting to the test a concept of equity that was conceived and designed from the perspective of abundance. This concept of equity must incorporate the notion of limitation. If water is to be used, its allocation must take into account the “life” of the resources themselves, as well as the ecosystems on which they depend. The components of nature are interconnected. The connections between groundwater and surface water are often overlooked, yet the way these resources feed into one another is a source of sustainability. In the latter part of the 20th century, these concerns gradually found their way into international law. They call for waterways to be managed sustainably and for the environment to be protected.
Adding new uses without a holistic perspective is no longer acceptable. The principle of integrated management is essential—that is, management that takes into account social, economic, and environmental issues. The law must be able to give substance to this concept of integration, requiring that the various bodies of law align with one another while accommodating the demands of intergenerational equity, which safeguards the rights of future generations as well as those of present generations.
Alongside the call for equity in resource limits, other normative approaches must be considered. One such approach is the recognition that rivers and lakes can be considered legal entities and thus entitled to protection. This approach gives a legal voice to the components of the environment. Representatives of these natural elements are appointed, particularly from among Indigenous and local communities. Examples include the Whanganui River in New Zealand, the Ganges in India and Bangladesh, and the Atrato River in Colombia. These waterways have all been recognized as legal persons with rights. This trend is currently playing out at the national level. It could inspire similar initiatives at the international level through frameworks that protect water resources across national borders. For a river, being a rights holder means having the ability to assert its rights against uses and decisions that do not respect them. This is a new normative approach that allows nature, through its representatives, to engage in discussions regarding the legitimacy of such uses.”
