Impact statement
Water law contains a rich body of regulation and research of key importance for tackling many of the most pressing questions related to the impacts of climate change, biodiversity loss mitigation, environmental pollution, and human rights. Yet, the current water law scholarship lacks a clear definition of water law which would bridge perspectives ranging from water resource rights to environmental protection and disaster management. Moreover, water law scholarship is typically not clear on whether the law as the object of analysis is approached from the perspective of trying to interpret and systematise existing water-related regulation (internal perspective to law), or whether there is an intent to critically analyse and propose changes or alternatives to the current regulation to achieve certain environmental, economic, or social goals (external perspective to law). This lack of clarity can be a major hurdle to scientific and societal collaboration across sectors. This article seeks to provide clarity in hopes of increasing interdisciplinary collaboration within the legal discipline as well as between legal, social scientific, humanistic, and natural scientific water scholars to help answer the water-related global challenges facing the global community.
Introduction
This article provides an overview and takes stock of the state of the art of water law as a regulatory topic and as an academic discipline. The work is motivated by the lack of a clear definition of water law as the boundaries of the field are increasingly expanding with concerns over the sufficiency and quality of Earth’s freshwater resources, and their connections to climate and biodiversity loss (Steffen et al., Reference Steffen, Richardson, Rockström, Cornell, Fetzer, Bennett, Biggs, Carpenter, de Vries, De Wit, Folke, Gerten, Heinke, Mace, Persson, Ramanathan, Reyers and Sörlin2015), disaster regulation (Farber, Reference Farber2011), and human rights (Salman and McInerney-Lankford, Reference Salman and McInerney-Lankford2004). Moreover, it is not always clear whether water law is approached from a strictly legal perspective to clarify the rights and obligations emanating from existing law (de lege lata), or whether water law is scrutinised from a policy perspective (de lege ferenda) to improve on the law from a particular perspective. With such stock-taking, we hope to facilitate the interdisciplinary collaboration between various fields of law, as well as between law and other fields of social, humanistic, and natural sciences. Within the confinements of space, this article does not, however, analyse in detail the robustness of the existing water law discussions.
Water law is defined broadly as the law that applies to freshwaters and their resources (Boisson de Chazournes et al., Reference Boisson de Chazournes, Leb, Tignino, Boisson de Chazournes, Leb and Tignino2013, p. 7). With such wide scope, water law directly or indirectly regulates a multitude of societal sectors, such as drinking water production, agricultural irrigation, hydropower generation, mining and other industrial waste-water treatment, and navigation (Boisson de Chazournes et al., Reference Boisson de Chazournes, Leb, Tignino, Boisson de Chazournes, Leb and Tignino2013, p. 7; Cullet, Reference Cullet, Conca and Weinthal2018, p. 329). In recent decades, water law has also come to include the protection of aquatic ecology (Boisson de Chazournes et al., Reference Boisson de Chazournes, Leb, Tignino, Boisson de Chazournes, Leb and Tignino2013, p. 7) coexisting with the environmental law of waters (Cullet, Reference Cullet, Conca and Weinthal2018, p. 329). Moreover, water law regulates how societies organize their water services and utilities and protect themselves from water-related societal disruptions, such as floods and droughts (Hartmann and Albrecht, Reference Hartmann and Albrecht2014). Consequently, water law cuts across societal systems at multiple levels (international, regional, national, local) and across several sectors of society (food, energy, infrastructure, cities).
Water law has a long history as codifications such as the Code of Hammurabi (1700 Before the Common Era) contained rules on the sharing of water resources (e.g., Cech, Reference Cech2010, pp. 9–14) followed by classical Roman law that regulated the use of waters in much of current Europe both before and after the beginning of the Common Era (Hollo, Reference Hollo and Hollo2017, p. 5). Much of the history of water law is that of private law, i.e., managing water resources with contracts, property rights, torts, and the concept of nuisance (Hollo, Reference Hollo and Hollo2017, pp. 4–5). Despite some evidence to the contrary, in many parts of the global north, public law concerning the use and protection of freshwaters developed from the early 1800th century onward as states increasingly faced competition over scarce water resources and private law remedies alone were deemed insufficient to tackle the water-related societal challenges at scale (Boisson de Chazournes et al., Reference Boisson de Chazournes, Leb, Tignino, Boisson de Chazournes, Leb and Tignino2013, p. 7; Hollo, Reference Hollo and Hollo2017, pp. 3–4). These initially national developments also lead to the establishment of bi- and multi-lateral as well as international water law which gradually formed the multilevel and multisector system of water law in place today (Hollo, Reference Hollo and Hollo2017, p. 9).
Conventional water laws have only regulated surface freshwater resources and groundwater, while saline waters have been regulated by the law of the sea and marine environmental law. In contemporary water law, however, this division has started to blur (Hollo, Reference Hollo and Hollo2017, p. 10). While still maintaining the core division of labour between fresh and saline waters, for instance, the European Union (EU) Water Framework Directive (2000/60/EC) regulates freshwaters, but also transitional and coastal waters. Similarly, the EU Marine Strategy Framework Directive (2008/56/EC), while applying to marine waters, recognises that the management of freshwaters and the adjacent land use are key to realising the effective protection of marine environmental quality particularly with challenges such as the agricultural nutrient runoff and plastic pollution (Arnold, Reference Arnold2014, pp. 1046–1047; McIntyre, Reference McIntyre2022, p. 221). In this way, questions of water law have become more prominent in marine environmental law, and vice versa, recognising the land-sea continuum shaping the aquatic ecosystems.
Methodologically, this review article is based on a systemic literature review complemented by expert judgment. The literature review covered two searches on the Web of Science and Google Scholar databases respectively, with “Water law” and “Water Rights” as keywords, focusing on publications in legal academic outlets in the past five years (1.1.2018–31.12.2022). In some sections, the search terms were broadened to include more specific terminology if the generic terms did not yield results. For instance, in water services and utilities section terms “Water services and law” were used, and rights of nature section was complemented by “rights of the river” searches. The choice of search terms and databases do leave out a significant portion of particularly national scholarship with a purely legal focus. Acknowledging these limitations, the materials were also complemented by the inclusion of handbooks and research articles falling outside the searches. This provided us with background information to check and complement our pre-existing expertise on the key categories and themes of water law.
After the searches and gathering of material, the material was divided into several categories. The first division of categories is between internal and external perspective to law, which is based on HLA Hart’s (Reference Hart1961) widely applied understanding of the concept of law. Roughly put, internal perspective to law means asking questions about what the law requires from different actors using the legal doctrinal method. In contrast, external perspective to law means using empirical methods, such as interviews and statistical analysis to answer questions pertaining to, for instance, the effectiveness or legitimacy of law as part of policy instrument mixes geared to achieve certain societal ends. Such division between the internal and external perspectives helps clarify the theoretical and methodological starting points of water law research (see also Soininen et al., 2023a). The sub-categories under these two broad banners were then divided further in terms of the substance of the articles encountered by relying on grounded theory. In practice, this means inductive categorisation of the studied material based on the material itself (Charmaz, Reference Charmaz2014, p. 1).
The article is structured as follows. In Section “Internal legal perspective to water law: establishing what the law requires”, we focus on the various themes of water law from law’s internal perspective. Internal perspective focuses on what kind of rights and obligations water law at various levels of governance (international, regional, national) establishes for public and private actors. Section “External perspectives: effectiveness and legitimacy of water law” focuses on an external perspective to law, in other words, societal legal scholarship on whether and how water law contributes to implementing water-related societal goals and aspirations. Section “Synthesis and future perspectives” synthesises and provides a brief outlook on the future of water law.
Internal legal perspective to water law: Establishing what the law requires
In this section, our focus is on scholarship that explores water law from an internal legal perspective, with the intent to interpret and clarify rights and obligations in existing legal instruments, such as multilateral agreements and national statutes, and case law related to them. This perspective also contains efforts to systematise and make the rights and obligations concerning waters at various levels and branches of law coherent, in other words, that the goals, rights, and obligations established in one legal instrument would not undermine obligations established in other instruments. Both the interpretive and systematising strands in legal scholarship are often coupled with a desire to improve on the legal instrumentation and help it reach societal goals effectively. Such desire is visible, for instance, in balancing the expectation of predictability and permanence that water laws should ideally provide and need for laws to be flexible to cope with social-ecological change and scientific risk and uncertainty (McCaffrey et al., Reference McCaffrey, Leb, Denoon, McCaffrey, Leb and Denoon2019b, p. 1). Nonetheless, more general (and often interdisciplinary) perspectives are left in the background and the interpretive and systematising legal scholarship is meant to primarily serve authorities and courts in implementing and enforcing water law, or signal to the legislature (or treaty organisation) that there is vagueness and gaps in, or contradictions between, legal instruments that would merit legislative changes.
Water use and protection
Water use and protection are classical themes of water law. At the international level, they are manifested in the 1997 UN Watercourses Convention in the form of the principle of reasonable and equitable utilization and the no-harm rule that are interrelated (McCaffrey, Reference McCaffrey, McCaffrey, Leb and Denoon2019; Schmeier and Gupta, Reference Schmeier and Gupta2020; Tanzi, Reference Tanzi2020). According to the Watercourses Convention, states must aim to attain optimal and sustainable utilization of and benefits from international waters, while being consistent with adequate protection of these waters (art. 5). Water uses include a variety of uses, such as agricultural uses and drinking water and hydroelectricity generation. The Convention states that no water use enjoys inherent priority over other uses and all relevant factors must be considered in decision-making (arts. 6 and 10) (see McCaffrey, Reference McCaffrey, McCaffrey, Leb and Denoon2019). Regarding water protection, states must take all appropriate measures to prevent causing significant harm to each other, protect and preserve the ecosystems and prevent, reduce, and control water pollution (arts. 7 and 20-21) (see McIntyre, Reference McIntyre, McCaffrey, Leb and Denoon2019).
Water use and protection are often approached through a basin-specific or regional case study addressing the different levels (international, regional, national) of water law (see McCaffrey et al., Reference McCaffrey, Leb and Denoon2019a). Also, legal comparison between countries or regions is common (Burchi, Reference Burchi2019; Macpherson, Reference Macpherson2022) as well as analysing the relationship between the legal rules of water use and water protection (Tanzi, Reference Tanzi2020). In recent years, water use has been discussed, for example, in relation to the principles of international water law (Meshel, Reference Meshel2020), priority between different uses (Zheng and Spijkers, Reference Zheng and Spijkers2021), benefit-sharing (Fatch et al., Reference Fatch, Bolding and Swatuk2022), property and water rights (Bosch and Gupta, Reference Bosch and Gupta2022), human right to water (Hildering, Reference Hildering2020), climate change adaptation (Bigelow and Zhang, Reference Bigelow and Zhang2018), hydropower energy and dams (Meshel, Reference Meshel2020; Puharinen, Reference Puharinen2022), water markets (Womble et al., Reference Womble, Townsend and Szeptycki2022), circular economy (Di Marco, Reference Di Marco2022) and water-energy-food-ecosystems nexus (Belinskij et al., Reference Belinskij, Huhta, Keskinen, Ratamäki, Saundry, Saundry and Ruddell2020). Also, groundwater use has gained prominence in water law publications (Milanés-Murcia, Reference Milanés-Murcia, McCaffrey, Leb and Denoon2019; Viljoen, Reference Viljoen2020; Cuadrado-Quesada and Joy, Reference Cuadrado-Quesada and Joy2021). The UNECE has published a Handbook on Water Allocation in a Transboundary Context under the 1992 Water Convention (UNECE, 2021) and water allocation has been discussed in research to some extent (Larson and Tarlock, Reference Larson, Tarlock, McCaffrey, Leb and Denoon2019; Mahmoudzadeh Varzi et al., Reference Mahmoudzadeh Varzi, Trout, DeJonge and Oad2019).
Legal research on water protection has increasingly highlighted an ecosystem approach (McIntyre, Reference McIntyre, McCaffrey, Leb and Denoon2019) related to the no-harm rule (Schmeier and Gupta, Reference Schmeier and Gupta2020) and other provisions of water law. In some publications the relationship between water law and the broader environmental law has been analysed (Ashton and Aydos, Reference Ashton and Aydos2019; Nelson, Reference Nelson2019). Moreover, water law research has addressed water pollution (McIntyre, Reference McIntyre2022), normative incoherence (Liu, Reference Liu2020), ecosystem services (Ruhl, Reference Ruhl2018) and transboundary impacts (Xie and Ibrahim, Reference Xie and Ibrahim2021). In addition to water pollution, research has highlighted water quality aspects, and, at the European level, a substantial number of publications have focused on the environmental objectives of the Water Framework Directive and their implementation in the EU Member States (Söderasp and Pettersson, Reference Söderasp and Pettersson2019; Starke and van Rijswick, Reference Starke and van Rijswick2021).
Water cooperation
The need for water cooperation is highlighted at the different levels of water law. In international water law, cooperation between states has been addressed through the general duty to cooperate, Leb, Reference Leb, McCaffrey, Leb and Denoon2019), prior notice to other states (Caflisch, Reference Caflisch, McCaffrey, Leb and Denoon2019), the principle of reciprocity in cooperation between states (Devlaeminck, Reference Devlaeminck2019) as well as numerous case-study examples including bi- and multilateral water agreements and joint bodies such as international water commissions (see McCaffrey, Reference McCaffrey, McCaffrey, Leb and Denoon2019). The legal themes addressed also include reporting under international water law (Rieu-Clarke, Reference Rieu-Clarke2020), negotiations between states and water diplomacy (Schmeier, Reference Schmeier2021), resolution of water disputes (Meshel, Reference Meshel2020) and international river basin organizations (Schmeier and Shubber, Reference Schmeier and Shubber2018). Moreover, bi- and multilateral water agreements have been subject to legal reviews (Zhao et al., Reference Zhao, Xiong, Wu and Zhang2022). Within EU water law, transboundary cooperation (Reichert, Reference Reichert2016) as well as public participation in river basin planning have been addressed (Rimmert et al., Reference Rimmert, Baudoin, Cotta, Kochskämper and Newig2020).
Human right to water
The UN General Assembly recognized the right to safe and clean drinking water and sanitation as a human right in its Resolution (64/292) in 2010. The right to water has been included in some national constitutions as well and it has invited lively discussion in water law research (Winkler, Reference Winkler, McCaffrey, Leb and Denoon2019; Ahmad and Lilienthal, Reference Ahmad and Lilienthal2021). The relationship between the human right to water and international water law has been addressed in many recent publications (Russell, Reference Russell, McCaffrey, Leb and Denoon2019; Hildering, Reference Hildering2020; Spijkers, Reference Spijkers2020a). At the European level, the European Citizen’s initiative on water and sanitation as a human right has been a subject of academic interest (van den Berge et al., Reference van den Berge, Boelens and Vos2020). At the national level, many legal scholars have analysed the implementation of the right to water (Kowalski, Reference Kowalski2020; Obani, Reference Obani2020) and the related investment disputes (Chen, Reference Chen2020; Nemeth, Reference Nemeth2022) and legal mobilization (Van den Berge et al., Reference Van den Berge, Vos, Boelens, Kishimoto and Jonker2021). The right to water has also been discussed within the context of indigenous water rights and other vulnerable populations (Viveros-Uehara, Reference Viveros-Uehara2022).
Water services and utilities
Water supply and sanitation services (sewage disposal and wastewater treatment) have been a rising focus area in recent water law research. Water services are closely linked to the human right to water (Maphela and Cloete, Reference Maphela and Cloete2020; van den Berge et al., Reference van den Berge, Boelens and Vos2020) and the UNECE Protocol on Water and Health aims to specifically enhance these services (art. 6) and to prevent, control and reduce water-related diseases (art. 1) (Tanzi and Farnelli, Reference Tanzi, Farnelli, McCaffrey, Leb and Denoon2019). Wastewater treatment services contribute to water protection and to the management of emerging pollutants such as nanomaterials and pharmaceuticals (McIntyre, Reference McIntyre2022; Miettinen and Khan, Reference Miettinen and Khan2022).
In recent years, water, and sanitation services tariffs (Neto and Camkin, Reference Neto and Camkin2020; Pérez, Reference Pérez2020), the recovery of costs (Sereno, Reference Sereno2022) and, in general, the interplay between the quality of and economic costs of such services (Cabrera et al., Reference Cabrera, Estruch-Juan, Gómez and and del Teso2022) have been widely discussed. Moreover, the legal regulation of the pricing system for water services has been linked with the principles of cost recovery and polluter pays (Sobota, Reference Sobota2022) and with the balancing between environmental, economic, and social interests (Karageorgou and Pouikli, Reference Karageorgou and Pouikli2019). It has also been noted that the regulation of water and sanitation services may contribute to circular economy transition through water treatment and reuse (Di Marco, Reference Di Marco2022). In addition, the privatization of water services (Albalate et al., Reference Albalate, Bel, González-Gómez and Picazo-Tadeo2022; McDonald, Reference McDonald2022) as well as water services disputes (Qian, Reference Qian2020) have been approached from a legal perspective.
Rights of nature
One of the emerging approaches to improve legal instrumentalization of water law in addressing the complex set of pressures impacting water resources has been the Rights of Nature (RoN) movement, that is, the use of legal personhood and granting of legal rights to water bodies, such as rivers (Cano Pecharroman, Reference Cano Pecharroman2018; O’Donnell and Talbot-Jones, Reference O’Donnell and Talbot-Jones2018; Kurki, Reference Kurki2022). These ideas are not new (see Salmond, Reference Salmond1947; Stone, Reference Stone1972; O’Donnell and Talbot-Jones, Reference O’Donnell and Talbot-Jones2018), yet while they first drifted to the fringes of environmental law, they have resurfaced in the legal academic research as well as in practise in legal systems around the world (O’Donnell, Reference O’Donnell2018, Reference O’Donnell2020; O’Donnell and Talbot-Jones, Reference O’Donnell and Talbot-Jones2018). Notably, there are various examples available around the world of RoN being constitutionally recognised (e.g., Ecuador, see Kauffman and Martin, Reference Kauffman and Martin2023) or rivers being given legal rights as persons through judicial decisions (e.g., Whanganuy River in New Zealand, see O’Donnell and Talbot-Jones, Reference O’Donnell and Talbot-Jones2018).
Typically, the basis for the legal personhood of rivers is derived either from indigenous worldviews and laws (Ruru, Reference Ruru2018; RiverOfLife et al., Reference RiverOfLife, Poelina, Bagnall and Lim2020; Hurlbert, Reference Hurlbert, Rouillard, Babbitt, Challies and Rinaudo2022), or from arguing an expansion of a property rights system to include self-determinacy of the river accompanied with a guardianship or stewardship (Talbot-Jones and Bennett, Reference Talbot-Jones and Bennett2019), which also entails strengthening the authority of local communities and indigenous peoples (Bignall et al., Reference Bignall, Hemming and Rigney2016). The rights of the rivers approach can be conceptualised as a shift from the prevailing environmental law’s position of protecting the environment as a public good or for the fulfilment of human rights towards recognising the rivers’ intrinsic value in the legal system and enabling it to seek legal redress on their own behalf (O’Donnell and Talbot-Jones, Reference O’Donnell and Talbot-Jones2018). More specifically, recognising nature, or its specific part such as a river, as a legal person involves affording it a basic set of legal rights, including legal standing, the right to enter and enforce legal contracts, and the right to own property (Naffine, Reference Naffine2009; O’Donnell and Talbot-Jones, Reference O’Donnell and Talbot-Jones2018). However, it is still unclear whether and how such legal recognition could lead to a higher level of environmental protection. Furthermore, it has been argued that legal personhood could actually not effectively be extended to natural entities, but rather, such legal recognition serves merely legal fictions with only symbolic value (Kurki, Reference Kurki2022).
Water security
Water security can be described as a lens through which to analyse questions of water allocation and protection in contexts that threaten the security of individuals or states (Lankford et al., Reference Lankford, Bakker, Zeitoun and Conway2013, p. ix). While inviting various interpretations, water security is typically used to denote that water may invite armed and other conflicts, but also that such conflicts affect the availability and quality of water (Pertile and Faccio, Reference Pertile and Faccio2020; Cullet et al., Reference Cullet, Bhullar and Koonan2021). Moreover, water security invites “softer” readings of security, referring not to armed conflicts and the like, but to questions of access to water, sufficient water quality, or protecting communities from floods and droughts (Brunnée and Toope, Reference Brunnée and Toope1997; Cullet et al., Reference Cullet, Bhullar and Koonan2021). Security emphasis is used both to highlight the linkages between water law and areas of law, such as human rights law, criminal law, and law of armed conflict, but also to underscore the societal importance of the topic as questions of security are typically high on any public policy agenda (Magsig, Reference Magsig2011, Reference Magsig, Rieu-Clarke, Allan and Hendry2017, Reference Magsig2020). Conventionally, international and regional legal discussion on water security has leaned more toward water in armed conflict (Pertile and Faccio, Reference Pertile and Faccio2020; Cullet et al., Reference Cullet, Bhullar and Koonan2021), while national and sub-national discussions (focusing more on local communities and individuals) have revolved more around questions of securing a sufficient level of water quantity and quality and protecting communities from floods and droughts (Cullet et al., Reference Cullet, Bhullar and Koonan2021). Increasingly, such perspectives are connected to the vulnerability of communities and people facing water-related disasters (Vink and Takeuchi, Reference Vink and Takeuchi2013).
Coherence between levels and fields of law
The systematic approaches to water law typically discuss the coherence (i.e., convergence, compatibility), or lack thereof (i.e., fragmentation; pluralisation) of legal instruments. Such analyses may deal with vertical coherence between various levels of water law, for instance between the global water treaties and the regional legal instruments (Louka, Reference Louka2008), or between the regional and national law (Krzyk and Drev, Reference Krzyk and Drev2021). Another perspective to coherence is horizontal, referring to the relationship between various instruments in the same field of law, such as water law (Tanzi, Reference Tanzi2015), or between various fields of law, such as water law in relation to environmental law (Barstow Magraw and Udomritthiruj, Reference Barstow Magraw, Udomritthiruj, McCaffrey, Leb and Denoon2019), climate law (Tarlock, Reference Tarlock, McCaffrey, Leb and Denoon2019), trade law (Barstow Magraw and Padmanabhan, Reference Barstow Magraw, Padmanabhan, McCaffrey, Leb and Denoon2019), and humanitarian law (Tignino, Reference Tignino, McCaffrey, Leb and Denoon2019; Spijkers, Reference Spijkers2020b; Nemeth, Reference Nemeth2022). While the horizontality of international water law has mostly focused on the said four fields, at the national level perhaps the constitutional dimensions have been most prevalent (Puharinen, Reference Puharinen2022; Viljoen, Reference Viljoen2022). Strands of this literature are also developing more ambitious methods of how coherence questions can be approached (Puharinen, Reference Puharinen2022).
External perspectives: Effectiveness and legitimacy of water law
This section focuses on water law scholarship that takes an external perspective to law. This means that law is understood as only one (albeit important) societal institution that facilitates and steers, but also impedes, the movement of public and private actors toward certain societal goals (Fisher, Reference Fisher2010, p. 1). The external perspective typically seeks to help legislature or treaty organisation to effectively reach its goals in the water sector, and to secure the legitimacy of such efforts (Tignino and Bréthaut, Reference Tignino, Bréthaut, Tignino and Bréthaut2018, pp. xix–xx). There are two main differences to the internal perspective. First, the external perspective not only contextualises a legal analysis (e.g., international water agreements in the context of water security) by using societal framings but seeks to integrate legal analysis more closely with interdisciplinary discussions concerning the effectiveness and legitimacy of water governance. Second, such perspectives to law in governance typically also invite a more pluralistic methodological orientation (e.g., quantitative and qualitative empirical methods) compared to the internal perspective.
Water law in integrated, collaborative, and adaptive governance
One of the core themes of water governance scholarship is how to effectively reach the societal sustainability (e.g., good quality) and resilience (e.g., flood protection) goals concerning water, and what roles do the legal institutions and instruments play in this (Wuijts et al., Reference Wuijts, Driessen and Van Rijswick2018). Some of the discussions around this are explicitly asked under the rubric of Sustainable Development Goals while others ask similar questions without explicit links to the SDGs (e.g., Spijkers, Reference Spijkers2016; Spijkers Reference Spijkers2020a). Conventionally, much of the discussion has been about how public authorities should manage water uses, quality, and security, and how this management should be governed by law. In the context of Integrated Water Resources Management, for instance, legal questions are typically related to the connections or lack thereof between different fields of law (Kidd and Feris, Reference Kidd, Feris, Kidd, Feris, Murombo and Iza2014), or how aspirations in one policy domain (e.g., wetlands conservation) may be thwarted by misaligned incentives and water use rights (King et al., Reference King, Laubhan, Tashjian, Vradenburg and Fredrickson2021). In this context, questions of how to provide effective governance responses to cumulative human pressures on water quality (e.g., point source and diffuse emissions) are still very much alive (Nelson, Reference Nelson2019; Rosencranz et al., Reference Rosencranz, Puthucherril, Tripathi and Gupta2021).
Alongside the discussion on governance integration, there is increasing discussion on the need for public and private actors to collaborate on establishing shared policies and management frameworks for water. This is typically referred to as co-management or co-governance of water resources, and law may have several impeding and facilitating roles in promoting collaboration (Fisher and Parsons, Reference Fisher and Parsons2020). Building on the collaborative governance theme, also questions of adaptive governance have drawn considerable attention, in other words, how can governance and law cope with social-ecological complexity and uncertainty (e.g., a local community facing drought but with legally established and rigid water allocation system; or a bilateral treaty organisation having to deal with exceptional floods in the context of legally established river flow regimes) (Cosens et al., Reference Cosens, Gunderson and Chaffin2015; Dunham et al., Reference Dunham, Angermeier, Crausbay, Cravens, Gosnell, McEvoy, Moritz, Raheem and Sanford2018; Söderasp, Reference Söderasp2018).
Water law in an ecosystem approach to water
Ecosystem approach is a natural resources management model that has gained legal prominence in the environmental law scholarship particularly after it was endorsed under the Convention on Biological Diversity (COP 5 Decision V/6 adopted 22 May 1992). At its core, the ecosystem approach entails an integrated and adaptive approach to natural resources management and environmental protection that takes a holistic perspective on the ecosystem, and human activities as parts of it (Bohman, Reference Bohman2017, p. 6). Furthermore, the approach entails that ecosystems should be governed along their natural boundaries instead of administrative borders (Bohman, Reference Bohman, Langlet and Rayfuse2018, p. 92). It has been argued that ecosystem approach is needed for effective management and governance of waters (Louka, Reference Louka2008).
In keeping with the ecosystem approach, several water law regimes on international, EU and national level base their aims on the environmental quality of water ecosystems and build their regulatory structure on holistic assessments and compilation of legal measures that are deemed the most effective in each ecosystem’s context (Bohman, Reference Bohman2017, Reference Bohman, Langlet and Rayfuse2018).
For these reasons, ecosystem approach has emerged and persisted as a prominent theme in water law scholarship, where research has particularly oriented towards the questions on how well current water laws are aligned with the approach (Bohman, Reference Bohman2017, Reference Bohman, Langlet and Rayfuse2018) and how its operationalisation could be strengthened in water law regimes (Platjouw, Reference Platjouw2016). On the one hand, particularly the traditional sector-specific approaches in law have been found to pose challenges for the instrumental implementation of the ecosystem approach as the latter requires a holistic approach to resource management (Xie and Ibrahim, Reference Xie and Ibrahim2021). On the other hand, integrating the ecosystem approach into legal regulation has been argued to improve the water law’s effectiveness in achieving its goals, and promoting its adaptive capacity and resilience in ensuring sustainable management and use of aquatic resources (Soininen and Platjouw, Reference Soininen, Platjouw, Langlet and Rayfuse2018), which has spurred calls for water law to meet the ecological realities of the water systems it aims to govern (Ruhl, Reference Ruhl2018; Macpherson and Weber Salazar, Reference Macpherson and Weber Salazar2020). Consequently, the shift towards an ecosystem approach has also emphasised the role of natural scientific data and assessment as a source of normative content in water law regimes (Paloniitty and Kotamäki, Reference Paloniitty and Kotamäki2021; Thorén et al., Reference Thorén, Soininen and Kotamäki2021; Soininen et al., 2023b).
Water law and legitimacy
Legitimacy typically refers to governance and law being acceptable according to some theoretical criteria, such as predictability, or that governance is perceived as acceptable by citizens (Soininen et al., 2023b). These questions in turn may evoke questions of whether governance distributes benefits and trade-offs related to water in an acceptable way, whether there are mechanisms for correcting past wrongdoing, and whether the governance processes are equitable (Miller, Reference Miller and Zalda2021). All three strands of legitimacy scholarship are present in the water governance and law literature. In the retributive strand, for instance, questions of reallocating water rights after abusive regimes have been discussed (van Koppen et al., Reference Van Koppen, Schreiner and Mukuyu2021). In the distributive strand, much of the discussion is about how to divide the benefits and harm related to water in an acceptable way (see Section “Internal legal perspective to water law: establishing what the law requires” on water allocation). In the procedural strand, especially participatory rights and community engagement in water management and governance processes has drawn considerable attention (Godden and Ison, Reference Godden and Ison2019).
Water law and climate change
Climate change is inherently intertwined with water law; as climate change alters the Earth’s hydrological regimes, its impacts will for a great part be realised through water. In legal academic scholarship, the issue of climate change and water law is on the one hand addressed from a perspective where water law is regarded as a crucial policy instrument in protecting the human societies from the adverse impacts of climate change and in shaping and enabling the societies’ climate change mitigation and adaptation responses (Arnold and Gunderson, Reference Arnold and Gunderson2013). On the other hand, climate change has invited new reflections in water law scholarship to assess the capacity of the current laws to deal with the inevitable change brought upon by the changing climate (Craig, Reference Craig2020). This is based on the notion that climate change poses a challenge to water law’s policy objectives, rules, and procedures (Wilby et al., Reference Wilby, Orr, Hedger, Forrow and Blackmore2006; Craig, Reference Craig2020), which calls for resilience and adaptive capacity of water law for it to stay relevant and effective in the changing social-ecological conditions (McIntyre, Reference McIntyre2017; Puharinen, Reference Puharinen2021). In legal scholarship, this has meant looking at water law through the lens of climate change to identify shortcomings (Keessen and van Rijswick, Reference Keessen and van Rijswick2012), untapped capacities for resilience (Garmestani et al., Reference Garmestani, Ruhl, Chaffin, Craig, van Rijswick, Angeler, Folke, Gunderson, Twidwell and Allen2019; Puharinen, Reference Puharinen2021) and improvements that can be made to the legal regimes to better deal with the growing challenge (Gupta and Conti, Reference Gupta and Conti2017). Climate change has also increased the importance of assessing the legal frameworks from the viewpoint of promoting water-related mitigation measures such as energy generation from offshore wind power and hydropower facilities (Similä et al., Reference Similä, Soininen and Paukku2022) and adaptation measures, such as allocation of scarcer water resources (Bigelow and Zhang, Reference Bigelow and Zhang2018; Michalak, Reference Michalak2020) and flood protection (Kapović Solomun et al., Reference Kapović Solomun, Ferreira, Zupanc, Ristić, Drobnjak and Kalantari2022).
Synthesis and future perspectives
Based on our review, both the internal (interpretation and systematization of water laws) and external (role of water law in addressing social-ecological challenges) perspectives to water law are actively used and invite vibrant discussions. The division helps recognise the somewhat differing theoretical and methodological points of departure in water law research. From an internal perspective, particularly the questions of human right to water as well as coherence between water law and other branches of law (e.g., trade law) have been vibrant in recent years, while also conventional questions of water use and protection remain subjects of active discussion. Overall, there is an increasing trend to consider both the private and public law aspects of water in tandem. From an external perspective, thematic questions focusing on climate change adaptation and law’s role in managing water-related pressures have been strong. Both the internal and external perspectives have highlighted ecosystem approach to water in the recent years.
In the future, there is likely a need to broaden the current global water law research to cover in more depth questions like whether and how public and private actors may govern the global circulation of water from evaporation and rainfall to virtual water and global value chains (Boisson de Chazournes et al., Reference Boisson de Chazournes, Leb, Tignino, Boisson de Chazournes, Leb and Tignino2013, pp. 22–23). Some research lines are already emerging, but the theme is likely to grow stronger as climate change brings about a global reallocation of water. Another broader theme likely to rise in the future is the role of water and water law in addressing the triple planetary crises related to climate change, loss of biodiversity, and environmental degradation (Steffen et al., Reference Steffen, Richardson, Rockström, Cornell, Fetzer, Bennett, Biggs, Carpenter, de Vries, De Wit, Folke, Gerten, Heinke, Mace, Persson, Ramanathan, Reyers and Sörlin2015). While water has been somewhat dormant under the three broad themes, it has considerable potential as an element of scholarly and governance integration when addressing the three crises in tandem. Third, emerging pollutants, such as microplastics, are likely to draw increasing research interest from a water law perspective going forward.
Open peer review
To view the open peer review materials for this article, please visit http://doi.org/10.1017/wat.2023.13.
Author contribution
N.S. coined the structure and division into internal and external perspectives of water law. All authors contributed equally to coining the method and conducting the literature review. N.S. had the lead responsibility for Sections “Introduction”, “Water Security”, “Coherence between levels and fields of law”, Water law in integrated, collaborative, and adaptive governance”, and “Water law and legitimacy”. A.B. had the lead responsibility for “Water use and protection”, “Water cooperation”, “Human right to water” and “Water services and utilities”. S-T.P. had the lead responsibility for “Water law and climate change”, “Rights of nature”, and “Water law in an ecosystems approach to water”
Financial support
The authors received financial support from the Sushydro-project (Finnish Academy 332189), the BlueAdapt project (Strategic Research Council of Finland 312652 and 312747), and the Cross-Gov project (EU Horizon 101060958).
Competing interest
The authors declare none.
Open access
Comments
Dear editor,
Please find attached an invited review article intended for Cambridge Prisms: Water. As requested, the article seeks to provide a systematic mapping of the current global water law scholarship in a concise form, and establish ways forward for future research. No new or original ideas are presented as per instructions. As water law is highly relevant for implementing water related goals and aspirations, we believe this entry would fit well the launch edition of the journal.
Best,
Niko, Antti and Suvi-Tuuli