Procedural Rules of International Water Law and the Imminent Challenges of the Ecosystem Approach

As the normative implications of emerging obligations to protect and preserve the ecosystems of transboundary watercourses become more clearly understood, the established procedural rules of international water law will be severely challenged. The current procedural rules and mechanisms, which have evolved to facilitate effective inter-State engagement regarding economic utilisation of shared waters, will struggle to accommodate key elements of the so-called “ecosystem approach”, including emerging obligations regarding environmental flows and the ecosystem services paradigm. In particular, the established rules will prove unequal to the procedural requirements of adaptive management techniques for maintaining ecological resilience, of broad and meaningful stakeholder and public participation in decision-making, and of complex benefit-sharing arrangements to ensure optimal and sustainable utilisation of shared water resources. While the ecosystem approach holds great promise for the resolution of inter-State water disputes, it is increasingly apparent that the procedural rules and mechanisms of international water law will need to shift away from one-time inter-State communication processes conducted in anticipation of planned water-related developments, and towards more sophisticated continuing procedural engagement focused on ensuring the optimal and sustainable functioning of valuable watercourse ecosystems.