A. Overview

This section describes the ‘architectural plans’ or, in other words, the basic structure of water governance at the domestic and international levels. It is, of course, not possible to capture the complexity of such a vast phenomenon in a few paragraphs, but at the same time this overview is necessary to situate the main fault-lines in the architecture of water law. This section discusses the overall structure and contents of domestic water law (II.B), the international law relating to water (II.C) and the resource management approaches on which legal frameworks are based (II.D). The section concludes by highlighting that the main fault-lines in the water governance landscape concern three main connections: the international/national levels; the inter-State/human rights vantage points; and inter-sectorial interactions.

B. Domestic Water Governance

At the domestic level, the management of water resources is a classical area of State regulation, often based on one or more sectorial laws.Footnote ⁸ Water management approaches have varied significantly over time and across countries, but some degree of convergence can be discerned around two main ideas:Footnote ⁹ the minimization of concentrated or diffuse discharges of pollutants into waterbodies (regulation of pollution), and the conservation and management of water resources (protection of the object).

The traditional approach to the consequences of water pollution was horizontal and focused on private-to-private good neighbourliness duties and the reparation of possible harm, whether through tort law or civil liability regimes. This is still important today, but it is not the main response to water pollution. The centre of gravity moved—at different periods depending on the countryFootnote ¹⁰—from a horizontal to a vertical or top-down regulatory approach aimed at minimizing discharges of pollutants into waterbodies through increasingly demanding command-and-control approaches and, to a lesser extent, through market mechanisms.Footnote ¹¹ Such vertical regimes are typically based on a permits system making discharges into waterbodies conditional upon the payment of effluent charges, the use of pre-treatment technology standards, and the reduction of pollution concentration in the discharge (particularly for so-called ‘toxic’ pollutants).Footnote ¹²

Regulation of pollution can be seen as a—particularly important—component of the broader approach to water conservation and management. The latter also relies on other techniques, including the development of a database of waterbodies, the setting of quality standards (eg for dissolved oxygen, heat and turbidity), zoning and area restrictions (excluding certain activities in certain areas),Footnote ¹³ the recognition of ‘instream’ or environmental flowsFootnote ¹⁴ (eg through water abstraction permits subject to certain ecological conditionsFootnote ¹⁵ or ‘legal reserves’Footnote ¹⁶) or, less frequently, the restoration of altered watercourses.Footnote ¹⁷

This overview cannot possibly be complete, but it is sufficient to emphasize that water regulation at the domestic level is mainly based on a vertical or top-down approach, even when it resorts to market mechanisms. Horizontal approaches (good neighbourliness and tort/liability) are still significant, but, at the domestic level, the centre of gravity is clearly situated on the vertical side of governance. As discussed below, at the international level, the opposite is true.

C. The International Law of Freshwater

International water law relies mostly on a horizontal cooperative logic whereby States commit to certain principles (reasonable and equitable utilization, no-harm, cooperation, prevention of environmental harm)Footnote ¹⁸ grounded on both customary international lawFootnote ¹⁹ and a wide web of treaties.Footnote ²⁰

The instruments embodying this horizontal logic are mostly of a limited geographical scope (eg watercourse specific treatiesFootnote ²¹), although there are three (possibly fourFootnote ²²) instruments of a general scope, namely the 1992 UNECE Water Convention (now open to accession by any country, even beyond the UNECE region),Footnote ²³ the 1997 New York Convention,Footnote ²⁴ and the 2008 ILC Draft Articles on Transboundary Aquifers,Footnote ²⁵ which adapt the principles applicable to surface (and surface-linked) waterbodies to all aquifers (including confined ones). Despite the importance of these instruments, which in some cases include sophisticated cooperation (eg river commissions) and dispute settlement (eg the Implementation Committee of the Water Convention) mechanisms, their centre of gravity is clearly on the horizontal inter-State relationship. Vertical obligations requiring States to take measures domestically in relation to water management are essentially an extension of (a form of implementing) the requirements of horizontal cooperation. The only exception to this horizontal approach at the international level is the now well-established recognition of the human rights to water and sanitation.Footnote ²⁶ Human rights, by their very design, entail a vertical relationship akin to domestic public law whereby States (and to some extent non-State actors such as regulated utilities) have the obligation towards individuals to respect, protect and fulfil human rights entitlements. Such obligations would normally be spelt out in both constitutional rights and a legislative and regulatory framework with the basic form described in relation to domestic water management law.

Yet, as it will be discussed in more detail later in this article (section III.C below), the horizontal logic of international watercourse law is not well integrated with the vertical logic of the human rights to water and sanitation. This is partly due to historical reasons (the latter developed after the bulk of the former had taken shape) as well as to political ones. Indeed, some States are reluctant to let the vertical human rights logic change the arms-length horizontal logic of international watercourse law. This is because the human rights logic could involve potentially far-reaching obligations for water-rich States to share their water resources with other States.Footnote ²⁷ However, for present purposes, the key consideration is that international watercourse law, with its horizontal logic, is insufficiently integrated with the international law relating to the human rights to water and sanitation, with its vertical logic.

D. The Sectorial Nature of Water Governance

An additional complexity which arises in both domestic and international law is the sectorial focus of most instruments. The article has already referred to the sectorial scope of domestic water laws as well as to the fact that the international law of watercourses is structured around watercourse-specific treaties or broader conventions applicable to watercourses in general. This presents a challenge because for water governance to be effective it may need to focus not only on water but also to take a broader perspective at the many interactions between the water cycle and other natural cycles and human processes.

Since the 1990s, the management of water resources has been increasingly organized following the so-called ‘integrated water resources management’ approach (IWRM), advocated for in some influential policy documents.Footnote ²⁸ This approach is still prevalent in international policy instrumentsFootnote ²⁹ although starting in 2011 an alternative—albeit consistent—approach has been developed focusing on the nexus between water and other cycles (mostly energy and food,Footnote ³⁰ but possibly other terms such as health, air pollution, waste, etc). This other approach has not yet been introduced into either domestic or international laws or even practices, although there have been some initiatives to mainstream it within the Water Convention.Footnote ³¹ However, at present, water governance is still clearly sectorial, which raises the question of whether more inter-sectorial integration is needed and, if so, how can it be achieved.

Overall, this short overview of the architecture of water governance highlights three main fault-lines. The first concerns the link between domestic water law (with its deep vertical and regulatory logic) and international watercourse law (with its horizontal cooperative logic). The second concerns the insufficient integration at the international level between the horizontally organized law of watercourses and the human rights to water and sanitation. The third concerns the limited integration of inter-sectorial interactions and feedbacks which gives water governance its (still) predominantly sectorial focus. These three fault-lines introduce discontinuities in the laws governing water. For each fault-line, a link between two provinces of water law is missing. In what follows, the use of one existing instrument as a realistic and cost-effective strategy to provide such missing links is examined.

A. Overview

The different nature of the fault-lines identified above means that no single instrument would be capable of providing the missing link, whether it is a global water convention or a soft-law instrument, such as a set of guidelines to the intention of policy-makers.

The Protocol on Water and Health (PWH) is no exception to this rule. Yet, when carefully considered, the PWH presents many advantages as a realistic, cost-effective, flexible, yet ambitious first step. This is because the PWH is not envisioned here only as a specific treaty, with its State parties and treaty bodies, but more generally as a ‘template’ or structured approach, which could serve as the basis for a development and cooperation strategy at various levels, including regional (eg the EU development and cooperation policy or the approach followed by the UN Economic Commission for Latin America and the Caribbean) and global (eg as part of the approaches recommended by the UN Special Rapporteur on the rights to safe drinking water and sanitation or by the UN High-Level Political Forum-Level Political Forum in examining the implementation of the SDG 6).

The following sections, provide some essential background regarding the PWH (III.B) and then discuss its potential to address the three fault-lines (III.C) as well as the possible routes through which it could be harnessed (III.D).

B. The Protocol on Water and Health

The PWH was adopted in 1999, in London, and it currently binds 26 States from the Pan-European region, including some Member States of the European Union. The Protocol is a stand-alone treaty under the aegis of the UNECE as well as of the European Office of the World Health Organization (WHO).Footnote ³² Like the other major instrument concluded within the UNECE in the late 1990s, ie the Aarhus Convention,Footnote ³³ the Protocol is a peculiar instrument half way between an inter-State and a human rights treaty. Such instruments, which can for present purposes be called ‘hybrid’, are rare, but they may become less so in the future.Footnote ³⁴

The PWH established both a vertical (regulatory) and a horizontal (cooperative) system requiring State Parties to manage and protect their waterbodies so as to ensure the rights to water and sanitation in the area covered by the Protocol. Overall, the PWH requires States to exercise due diligence so as to provide access to water and sanitation.Footnote ³⁵ This general duty is fleshed out through four clusters of obligations.

The first cluster requires States to set targets in numerous areas relating to water management, sanitation and health,Footnote ³⁶ as well as to monitor them and regularly report on their achievement.Footnote ³⁷ Although this is a procedural obligation of result, in that States are bound to set targets in all the areas—unless the ‘national or local circumstances make [targets in some areas] irrelevant’ (Article 6(1) in fine)—and monitor their achievement, such a system is flexible and admits several implementation approaches (which may and do differ significantly from one country to another, both in content, form, prioritization and time frame). The goal of this initial cluster of obligations is one of harmonization across countries to ensure a minimum level of protection of waterbodies that can meet human needs, but the approach is necessarily one of ‘equivalence’; namely, one whereby country systems may differ as long as they constitute duly diligent efforts to ensure the minimum standard.

The second cluster of obligations concerns the establishment, improvement and maintenance of a system to respond to water and health-related emergencies.Footnote ³⁸ Such a system entails surveillance, early-warning systems and contingency response plans at all relevant levels (national but also local, as relevant) with respect to health-related emergencies and, again, the requirement is an expression of the broad duty of due diligence in that the conformity of the systems is based on their (duly diligent) ability to achieve their protective objectives. Such emergencies may arise from different causes, including major industrial accidents or other threats, which are governed by other relevant treaties adopted under the aegis of the UNECE. Such is the broader context within which the PWH operates, which includes not only the UNECE Water Convention but goes much further and encompasses the entire set of resource and environmental management treaties established under the aegis of the UNECE.Footnote ³⁹

The third cluster of obligations also emphasizes this broader normative context. It provides for information development (through awareness-raising, training and research),Footnote ⁴⁰ access to information,Footnote ⁴¹ public participation in decision-making processes,Footnote ⁴² and appropriate access to judicial and administrative review of relevant decisions.Footnote ⁴³ This cluster restates the general requirements envisioned in another major UNECE instrument, the Aarhus Convention, thus creating further synergies between the two instruments and highlighting their hybrid nature.

The fourth cluster of obligations focuses on inter-State—horizontal—cooperation.Footnote ⁴⁴ Significantly, this cluster incorporates the obligations of cooperation on transboundary waters for Parties of the UNECE Water Convention and, on one point, it goes beyond them. Indeed, Article 13, paragraph 1(c), requires State Parties to the PWH to adapt or define the relevant agreements or arrangements in a manner which is consistent with the Protocol, subject to certain conditions.Footnote ⁴⁵

The PWH relies on a sophisticated institutional structure to further its development and implementation, including a Meeting of the Parties (MOP) every three years, an active Secretariat, and meetings of permanent bodies, such as the Bureau and the Working Group on Water and Health, which are both formed of State representatives, and the Compliance Committee,Footnote ⁴⁶ which consists of nine independent experts serving in their own individual capacities. The latter can inter alia undertake a ‘Consultation Process’ to assist States in the implementation of the ProtocolFootnote ⁴⁷ and it can also hear cases of non-compliance, including communications from the public.Footnote ⁴⁸

This overview of the PWH provides the essential background for the discussion in the next section regarding the potential of this instrument to provide the three missing links in the architecture of global water governance.

C. Providing the Missing Links

As has been noted in the previous section, the PWH is peculiar in three main ways. First, it contains both a vertical regulatory system addressing pollution regulation and protection of water as an object (akin to domestic water governance) as well as a horizontal system of inter-State cooperation (akin to the international law of watercourses). Secondly, in addition to its inter-State dimension, it also has a very developed human rights dimension, which addresses both substantive and procedural aspects of access to water and sanitation. This human rights dimension is confirmed by the fact that the public can bring communications before the Compliance Committee in a manner analogous to complaints before human rights bodies. Third, the PWH expressly foresees the need for inter-sectorial integration at the planning and even the institutional levels, and it operates within a wider network of UNECE environmental treaties dealing with air pollution, environmental impact assessment, industrial accidents, water cooperation and public participation. How each of these peculiar features make the PWH not only a useful instrument (for accession) but, more generally, a useful model that could be explored in other contexts will now be considered.

The first fault-line identified in the architecture of global water governance is the missing link between the horizontal (cooperative) approach followed by the international law of watercourses and the vertical (regulatory) approach followed in domestic water governance. The discontinuity arises from the fact that the level of domestic protection of waterbodies required by international law is indirect in that it is only when shortcomings in domestic regulation lead to transboundary problems that the horizontal cooperative approach places bounds on domestic regulation. The model of the PWH may operate here as a sort of hinge or juncture which, by its vertical and horizontal nature, is capable of articulating the domestic and international approaches, thereby providing some degree of integration across different types of obligations. A concrete illustration of this hinge function is provided by Article 12 of the PWH which makes the vertical requirements of the first (target setting and monitoring), second (emergency response) and third (participation) clusters an explicit area of the fourth cluster, inter-State horizontal cooperation. Such horizontal cooperation is an extension of the standards set in the vertical clusters of obligations.

The second fault-line referred to earlier concerns the insufficient linking between the inter-State law of international watercourses and the human rights to water and sanitation. This is a complex question which requires some fine-grained examination. The international law of watercourses, whether custom or treaty law, is based on the principle of equitable and reasonable utilization.Footnote ⁴⁹ This principle strikes a balance between the interests of the upstream and the downstream States by recognizing the right of the former to use the watercourse as long as such use is not inequitable and unreasonable, in which case the interests of the downstream State would be affected to a point that its rights are violated. By its very definition, this principle operates in a transboundary context. More specifically, it concerns effects that are felt beyond the State of origin of the harm. The affected State can claim that the use of the watercourse has been inequitable and/or unreasonable, which, in the absence of a specific treaty, would depend on a range of criteria (eg factors of a natural character, social and economic needs, existing and potential uses, effects on other watercourse States, etc) codified mostly in Article 6(1) of the 1997 New York Convention.Footnote ⁵⁰ No criterion prevails over another, with one caveat. Article 10(2) states that ‘in the event of a conflict between uses of an international watercourse, it shall be resolved with reference to articles 5 to 7, with special regard being given to the requirements of vital human needs’ (italics added). This caveat recognizes, to some extent, the overriding logic of the right to water. However, and very importantly, it does so in a very limited manner because: (i) it only states that ‘special regard’ will be given to such needs and not that such needs will always prevail; (ii) it neither clarifies whether that priority emerges from certain human rights or what those ‘needs’ are (eg are sanitation needs included?); (iii) more fundamentally, no specific obligations arising from the mild priority given to ‘vital human needs’ are identified. In short, this horizontal structure is utterly insufficient to implement the rights to water and sanitation. Other treaty frameworks, particularly watercourse specific treaties, may go further but, as a general matter, they are all based on a similar horizontal cooperative logic. At the other end of the spectrum, the instruments recognizing the human rights to water and sanitation present two main limitations. First, to the extent that such rights are expressly recognized in the text of a treaty—which is not the case in the main general sourceFootnote ⁵¹—they are formulated in terms of rights. The obligations arising from these rights (as for other human rights) are essentially the result of interpretation and conceptual elaboration rather than specifically formulated duties. Secondly, the transboundary dimensions of the rights to water and sanitation—or, in other words, the obligation of a State not to deprive individuals in other States of their rights to water and sanitation—are less assertively stated in the main sources (which use in this context the modal verb ‘should’ rather than ‘shall’).Footnote ⁵² Thus, whether one looks at the fault-line from the standpoint of international watercourse law or from that of human rights law, neither perspective offers an adequate link.

In this specific context, the PWH, because of what was referred to earlier as its hybrid nature, can provide the missing link. As noted earlier, the Protocol emphasizes from the outset that its objective ‘is to promote at all appropriate levels, nationally as well as in transboundary and international contexts, the protection of human health and well-being, both individual and collective’ (Article 1). This objective is further reflected when the Protocol states, in Article 4, the overarching due diligence duty to ‘take all appropriate measures for the purpose of ensuring […] adequate supplies of wholesome drinking water [… and …] adequate sanitation of a standard which sufficiently protects human health’. Further still, this objective is reflected in the principles guiding the Protocol (equitable access under Article 5(l)Footnote ⁵³ and the public participation triad under Article 5(i)) and in the specific clusters of obligations (eg Article 6(1)(a)–(b) states the aims of ‘access to drinking water for everyone’ and ‘the provision of sanitation for everyone’). Thus, the vertical regulatory obligations expressly formulated in the Protocol have the specific aim of ensuring the rights to water and sanitation. And because, as discussed with respect to the first fault-line, the vertical clusters are expressly articulated with the inter-State horizontal—cooperation—cluster of obligations, the PWH sets up a joint standard system, shared by State Parties, to implement the rights to water and sanitation. It does so by providing the missing link between the inter-State and human rights aspects of international water law. It extends the inter-State horizontal obligations through a system of vertical regulatory obligations aimed at ensuring the rights to water and sanitation. And it also extends the human rights instruments through a system of horizontal cooperation aimed at setting a common standard across all States Parties.

Finally, the third fault-line in the architecture of global water governance concerns the essentially sectorial focus on water law, both domestically and internationally, and the potential need for further integration with the policy responses to other challenges. The approach of the PWH in this regard is resolutely integrative at the level of substantive scope (the nexus between water management and health), management techniques (including planning),Footnote ⁵⁴ institutional coordination,Footnote ⁵⁵ and integration within the wider body of agreements developed under the aegis of the UNECE.Footnote ⁵⁶ The Working Group on Water Health (WGWH), an open-ended subsidiary body established by the Meeting of the Parties at its first meeting in January 2007, operates as a science-policy interface on a broad range of issues concerning water and health. By way of illustration, in its meeting in November 2017 the WGWH discussed, among other topics, the role of the PWH in the 2030 Agenda for Sustainable Development and approaches to increase resilience to climate change. Thus, the PWH adopts an approach according to which both the understanding of the problem and the policy response are expected to go beyond a merely or predominantly sectorial focus on water. By doing so, it provides a flexible basis for States to undertake a range of administrative and regulatory reforms, whether ‘soft’ (eg the creation of informal inter-ministerial dialogues) or more formalized (eg integrated management divisions, plans or even regulations connecting two or more statutes). Each State will operate within its own political and legal constraints, but the PWH offers a basis to promote cross-sectoral intervention.

The potential of the PWH as an instrument to provide the three missing links identified and examined so far is not limited to the Protocol as a legal instrument, but concerns the model embodied by the Protocol more generally. The next section explores different routes through which the potential of this model can be harnessed to promote global water governance integration.

D. Harnessing the Potential of the PWH for Water Governance Integration

Aside from being a specific treaty, the PWH epitomizes a model that could be explored to provide the three missing links discussed in this article. Such a model has significant advantages. First and foremost, it is realistic, cost-effective and flexible, and it does not lack ambition. Of course, it is less ambitious than other possible steps that could be taken to promote water governance integration, including those proposed by the HLPW in its final outcome document. But, perhaps for that reason, it may be a sound initial step and even an ambitious one depending on how this model is harnessed. There are different routes through which to do so.

The first route would involve becoming a Party to the PWH through accession. At present, accession is not open to any State but only to those contemplated in Articles 21 and 22 of the Protocol, in essence States members of the UNECE or of the Regional Committee for Europe of the WHO. Significantly, regional economic organizations composed of States members to the UNECE or WHO-Europe could also accede. That includes the EU, which could find it useful to accede to the PWH for three main reasons. First, the requirements of the PWH could be largely implemented by means of existing—and proposed—EU water law, including through the recasting of the Drinking Water Directive. The PWH would offer, in this regard, both a basis for action at the European level and a way of securing a human rights approach to water and sanitation if the currently contentious inclusion of a provision on the right to water in the recast of the Drinking Water Directive proves to be unworkable. Secondly, accession by the EU would assuage the concerns that some EU Member States have aired regarding the link between the PWH and EU instruments relating to water. Within the context of the Consultation Process with three EU Member States, Estonia, Latvia and Lithuania, and at their request, the Protocol Compliance Committee is currently studying this question in order to provide some clarification. Third, accession to the PWH would allow the EU to rely on the Protocol to ensure certain minimum standards of water and health protection in countries of the Pan-European region covered by the UNECE and WHO-Europe which border the territory of the Union but are not members. From this perspective, the PWH offers an instrument to expand the geographical scope of water management harmonization.

The second route also concerns the PWH as such. It would consist of amending the relevant provisions of the Protocol to enable accession by any country, as is the case of the Water Convention, which has become a global water instrument alongside the 1997 New York Convention. Significantly, some other instruments of the UNECE cluster of environmental conventions have also been opened to accession by countries beyond the UNECE. These include the 1991 Espoo Convention on Environmental Impact Assessment,Footnote ⁵⁷ the Aarhus Convention and its Protocol on Pollutant Release and Transfer Registers (PRTR Protocol).Footnote ⁵⁸

The third route draws on the PWH model rather than on the Protocol as such. Given its potential to provide certain key missing links in the architecture of global water governance, the PWH model could be used as a framework to structure comprehensive water governance in contexts where reliance on model water laws (which typically neglect the first and third fault-lines) or on the inter-State horizontal—cooperative—approaches (which leave largely unaddressed the three fault-lines) seem insufficient. Such a model could be relied upon in the development, cooperation and foreign policy work of different organizations, including regional organizations such as the EU, the UNECE or other UN Economic Commissions, or of global organizations, such as the Human Rights Council (including by so-called Special Procedures, eg Special Rapporteurs) or the High-Level Political Forum for Sustainable Development.

The fourth route is related to the third. In much the same way as the UNECE has a solid cluster of environmental conventions, other UN economic commissions could find it useful to adopt regional instruments relying on a tested prior model. Such has been the case in the area of public participation in environmental matters with the adoption in early March 2018 of the Escazú Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean under the aegis of the ECLAC. The need for a more contextualized instrument on public participation had already been voiced at the 2012 Rio Summit on Sustainable Development.Footnote ⁵⁹ A similar approach could be explored with respect to a regional PWH, which would be responsive to the specific regional needs of the ECLAC or of other regions.