Water regulations are both singular and universal, as well as multidisciplinary. That's what makes it so complex.

Laurence Boisson de Chazournes

Laurence Boisson de Chazournes is an advisor to States, international organizations, associations and companies in various fields of international law, and a pioneer in natural resource management issues. She founded the Platform for International Freshwater Law and contributes her expertise to negotiations on international watercourses.

She has been invited for the year 2022-2023 to hold the annual Avenir Commun Durable chair, which is supported by the Collège de France Foundation and its major sponsors Covéa and TotalEnergies.

Why did you choose water as a subject for study in international law ?

Laurence Boisson de Chazournes : It all started when I was working at the World Bank in the late 1990s. Among my activities, I had to deal with international law issues concerning the Senegal River, the Aral Sea and the Nile. As a generalist by training, I quickly realized that there was little literature or comprehensive research on the subject. So, thanks to my fieldwork, I began to theorize about this field. I went on to work on other international rivers. At the University of Geneva, with the help of doctoral students, I also created the Platform for International Freshwater Law, which has served as a crucible for numerous research projects and publications.

Historically, how has international law dealt with the subject of freshwater ?

The international approach to water developed late, in the second half of the ^20th century. Even today, in my opinion, international law deals with the subject in only a partial and piecemeal fashion. Initially, water resources shared by several states were dealt with, but only for certain uses. International rivers are primarily used for navigation and trade, as trade grew in the ^19th century. They also served as transportation routes during the expansion of colonization in Africa and Asia. The establishment of state borders relied on international rivers and lakes as natural supports. Contemporary inter-state disputes are marked by decisions taken at this time. Water was considered an inexhaustible resource. The subject of groundwater was not even broached.

The ^20th century saw significant demographic growth, as well as significant economic and social change. The uses to which water was put increased and diversified. Regulations took shape in line with these new uses. Water was used to produce energy by building dams, but also to develop industries, particularly in Western countries. And let's not forget agriculture, where irrigation already absorbed 70 % of water resources. At the end of the ^20th century, there was also a growing awareness that water was a natural resource that needed to be managed sustainably, as it was being severely affected by environmental degradation (melting glaciers, drought, flooding, etc.). Attention is also focused on satisfying human needs.

Does this mean that environmental protection and the satisfaction of human needs are now at the heart of international water regulation ?

It's clear that awareness of the need to protect the environment plays an important role in international water regulation. Soil and forest management, the protection of biodiversity and the fight against climate change all contribute to better water protection. Beyond environmental law, international human rights law is increasingly being called upon, and the issue of access to water is becoming central. Although water is the planet's most abundant resource, and in constant supply, it is not naturally distributed in a " balanced " manner. 97 % of its total volume cannot be consumed, used for irrigation, or even used for industrial purposes due to its high salt content. A very large number of people still do not have access to it. The same applies to sanitation. In fact, this issue appears as a priority in the International Agenda 2030, adopted by the United Nations General Assembly in 2015, with the Sustainable Development Goal (SDG) of access to water for all by 2030.

Water resources regulation is, however, made up of other bodies of standards. The economic aspect is also present. Navigation on international rivers is still a vital strategic interest for many countries, especially landlocked ones. The same applies to energy production. International investment law also highlights other aspects of the economic dimension of water. This is the case with concession contracts, whereby a government entrusts private companies with the provision of public services such as water supply. This vital resource is also a diplomatic issue. It is at the heart of tensions and conflicts. Dispute settlement initiatives are used to try and resolve them. In the context of armed conflict, water can be used as a weapon of war, as the conflict in Ukraine has shown. International water law therefore has many facets, all of which play a role.

Is there a common set of standards for regulating water at international level ?

Water regulation is both unique and universal, as well as being multidisciplinary. This is what makes it so complex. At the end of the ^twentieth century states attempted to codify the general principles of international law, notably through the United Nations Convention of May 21 1997 on the Law of the Non-Navigational Uses of International Watercourses. The aim of this convention, which came into force in 2014, is to provide a normative frame of reference for the management of international watercourses. Through this text, the signatories undertake to use the readings equitably and reasonably, without causing significant damage to other riparian states. They also set up various instruments for cooperation, regularly exchanging - in theory, at least - data and information on the state of the readings, and notifying other riparian states of planned water use projects. These principles are applied at regional level. This is notably the case in Europe, with the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes. This is also the case for the revised protocol on shared watercourses in the Southern African Development Community. In a way, there is a common set of standards governing international watercourses.

Nevertheless, these initiatives only set out general principles. No two rivers are alike, be they geographical, hydrological, human or even political. Thus, the basic unit of water regulation remains the river basin. A large number of specific agreements have been concluded. Within this framework, the role of international law is to take into account the particularities of each basin, while at the same time establishing broad general principles. By the way, these principles make it possible to regulate what I call orphan basins, i.e. basins that are not the subject of an agreement between riparian states.

There are many issues surrounding water. To address them, are there any leading institutions dealing with the subject, such as the World Health Organization for health issues ?

Here again, it's a peculiarity of international water law : the main institutions we have at present are basin institutions. Examples include the Rhine Commission, the Danube Commission and the Senegal River Commission. Some, like the International Joint Commission between the United States and Canada, have been given the power to adopt binding decisions. Generally speaking, it is therefore the riparian states that decide together on the use of a given lecture. At regional level, there is no institution dealing with the subject, apart from the United Nations Economic Commission for Europe, and to a lesser extent the European Union. And at the universal level, there is no institution that deals with water in its entirety, in all its components. This is partly due to the fact that water remains a strategic issue for individual countries, and sovereignty still plays an important role. But, in my opinion, this is a real weakness, because even if water is not always a source of conflict, its increasing scarcity and waste in certain regions will lead to population displacement and heightened tensions. It would therefore be useful for the subject to have a voice at the United Nations. The Security Council talks about it from time to time, but water management is not just a security issue. The General Assembly will hold a special meeting dedicated to water in 2023. Perhaps steps towards a more coherent vision of water will emerge.

While legal texts and institutions appear to be in their infancy, can diplomacy help to manage water sustainably ?Can you explain the concept of" hydro-diplomacy " ?

 hydro-diplomatie " aims to achieve the best possible management of international rivers and prevent disputes. In practice, there are asymmetries within each river. They may be natural, for example, in terms of access to water or the length of a river's banks. They can also be political, as there are often inequalities of power between two riparian states.

In this context, international law establishes the principle that all states bordering a river have an equal right of access to water resources. It is not, however, an equal right in terms of water quantity or benefits. It is therefore up to the riparian states to ensure that equity and the absence of significant damage govern their relations. The " hydro-diplomacy " website enables the search for a model based on fairness and reasonableness, involving all the stakeholders and players concerned. The idea is to resolve crucial issues such as data exchange, food security and energy problems. The fact remains, however, that this concept of " hydro-diplomacy " is flexible - perhaps too flexible. It depends on the goodwill of the parties involved.

Unfortunately, conflict sometimes seems inevitable. Howdointernational law and" hydro-diplomacy " deal with this situation ?

Disputes must be resolved peacefully through diplomatic or judicial mechanisms. In this sense, certain international jurisdictions are competent to manage such conflicts. Diplomacy, for its part, can take over the implementation of judicial decisions. To this end, I am a great believer in mediation, which enables the parties involved to find common ground. The mediator has the flexibility to listen, propose and lead the parties to an agreement. There is also a technical aspect to water that is important in resolving conflicts. The mediator or conciliator called upon to intervene can call on the services of specialists.

In the case of armed conflict, water can be either a target (as in the case of water-related infrastructure) or a weapon (as in the case of dam control). Particular attention must be paid to protecting water and ensuring access to this resource for populations. In this context, international law in its broadest sense - including international humanitarian law, human rights and environmental law - must be applied. However, the law applicable in times of armed conflict, including situations of occupation, must be strengthened in terms of content and application. In this context, international criminal law could make it possible to punish war crimes or crimes against humanity linked to water resources.

We've talked a lot about governments, but little about private players. What role should they play ?

Private players - private enterprise or public enterprise - play a considerable role. Without significant investment, the Sustainable Development Goal (SDG) on access to water and sanitation for all will not be achieved. Today, thanks in particular to the support of the United Nations, which has equipped itself with instruments - such as the UN Global Compact - private players are guided in the role they must play. There is an acceptance on their part of a form of accountability. What remains to be done is to define the contours of this notion. National laws have made it possible to establish the obligation of vigilance that falls to them. At the international level, codes of conduct and other forms of commitment bring together the best practices with which companies must comply. In addition, as part of a research project conducted with the Centre for Philanthropy at the University of Geneva, we are attempting to identify good practices that relate more specifically to water resources and their ecosystems. These will be the subject of a Code of Conduct that will be disseminated and evolve as knowledge is acquired.

Interview by Romain Cayrey