ABSTRACT
Sovereignty is a key concept in international law. It signifies the independence of a state, which means that it is subject to the authority of no other state (Jennings and Watts 1992, 117, para. 382). Sovereignty is thus the fundamental principle that allows states to negotiate and enter into treaties with other states: the ability autonomously to engage in reciprocal arrangements with other parties requires having territorial and governance jurisdiction and authority. Consequently, international agreements reaffirm sovereignty by reinforcing the legitimacy of the state to participate in these arrangements (Permanent Court of International Justice 1923). However, while seemingly straightforward, the meaning of this central
concept is debated among international law scholars2 and takes on additional complexities when viewed through the prism of political science and states’ claims in their interactions with each other. Sovereignty is thus a contested term, particularly as scholars challenge traditional notions of the state as a centralized, territorially bounded, unified entity that interacts with other states solely on the governmental level-in short, the Westphalian system.3
The notion of sovereignty as having any role in interstate relations has also been strongly challenged. The noted international law scholar Louis Henkin has observed, in a paper entitled ‘The Mythology of Sovereignty’, ‘As applied to states in their relations with other states, “sovereignty” is a mistake. Sovereignty is essentially an internal concept, the locus of ultimate authority in a society, rooted in its origins in the authority of sovereign princes. … Surely, as applied to the modern secular state in relation to other secular states, it is not meaningful to speak of the state as sovereign. Sovereignty, I conclude, is not per se a normative conception in international law’ (Henkin 1993, 6). Henkin is not alone in efforts to question sovereignty: many political scien-
tists-particularly those engaged in examining transboundary environmental politics and changing international governance structures4-have also sought
to deconstruct the concept. For example, some have reframed sovereignty through ‘unbundling’ it, whereby they differentiate between internal and external sovereignty5 and distinguish among the concepts of autonomy, authority, and control. Karen Litfin’s (1998a) ‘sovereignty bargains’ represent one analytical approach to understanding the dynamics of state interactions, in which engaging in international agreements and reciprocal compromises leads to trade-offs among the constituent components of sovereignty. These transactions might reduce one dimension of sovereignty (by, for example, reducing the control of the state over unilateral decision-making), but correspondingly increase another component of sovereignty (for instance, securing greater authority by better protecting its citizens from harm that could otherwise be caused by unilateral action by another state), thereby enhancing overall sovereign effectiveness. In international negotiations, sovereignty is often used to announce the sole
authority of a state over the activities and resources within its territorial jurisdiction, and to denounce the rights of other states to interfere with that control. For those of us interested in transboundary water, the relevance of these debates over terminology and the concept of sovereignty at the international level is that sovereignty-interpreted as a state’s supreme authority over resources within its borders-is a doctrine that is not well suited to regulating relations between two or more states that share the same resource. Sovereignty has been used in international water negotiations and disputes as a means of staking claims and making decisions. It is, in fact, the starting point of the new draft articles on the law of transboundary aquifers adopted by the UN International Law Commission.6 However, it is, we argue, a flawed basis for regulating the relations between states over shared water; strong assertions of its primacy as a principle of law in this field in fact tend to engender disputes over international waters and hinder their resolution. This chapter does not pretend to cover the entire field of international law
with respect to understanding international water negotiations and dispute resolutions; however, it does address a central debate in the field, and bring a political and legal lens to our understanding of how better to resolve conflicts over transboundary waters. International law is a necessary and valuable tool for international water governance: it provides a basis for making consistent and equitable decisions for water management, offers a tool for resolving conflicts through peaceful means, and establishes guidelines and rules for an otherwise fragmented and complex set of ecosystems and resources (where water resources are, simultaneously and among other things, territory, borders, means of transportation and tools of trade, providers of basic survival, producers of electrical power, and the underpinnings of food production). However, for international law to be an effective tool for water governance, its foundational principles must provide mechanisms for weighing claims, allocating rights, and negotiating compromises. The UNWatercourses Convention (UN 1997) provides a set of principles that encourage resolution of water disputes in a manner that is reasonable, equitable, and internationally
acceptable. In contrast, we are concerned that the approach of the draft articles on transboundary aquifers is likely to exacerbate conflict through legal disputes, result in stalemates in the courts (if the courts have jurisdiction7), and provide no resolution to persistent conflicts in the watersheds. While claims of sovereignty have arisen in a number of transboundary water disputes, co-riparians have successfully resolved disputes most frequently when they have moved away from unilateral declaration of control towards principles of equitable and reasonable utilization, prevention of significant harm, and prior notification, that is, methods of joint use as well as peaceful and mutually beneficial dispute resolution, which are reflected in both customary and codified international law relating to transboundary waters. In the following sections, we look to a classic example of the invocation of
the principle of sovereignty-known as the ‘Harmon Doctrine’ after its most noted exponent-in an international water dispute between the USA and Mexico over the Rio Grande, and we look also at more recent examples of the centrality of sovereignty claims (and the problems this causes) in conflicts over transboundary water for India and Bangladesh on the Ganges, and for Turkey, Syria, and Iraq on the Tigris-Euphrates Rivers. We offer a discussion of a disaggregated understanding of sovereignty, to introduce the trade-offs involved in assertions of rights over resources, particularly over those which are fluid and mobile. We then turn to the UN Watercourses Convention to illustrate alternate principles of international law that can guide more effective resolution of disputes, and that provide a promising basis for moving forward on co-operative relationships among countries in shared watersheds. The worrying direction of the most recent international legal effort to address shared freshwater management, the draft articles on transboundary aquifers, is examined, and it is argued that using sovereignty as the leitmotif of a regime governing transboundary water, at best, is unhelpful and, at worst, actively undermines conflict resolution efforts.
