Abstract
Securing free and equal access to water for individuals is foremost an objective of international water law. This article analyses the community of interest theoretical framework for the creation and implementation of rules that can achieve this objective. This theory is in line with the natural unity of the watercourse that traverses political borders between states. However, legal doctrine is not unanimous concerning its practical value, state practices largely evade it, and case law only provides declarative support without indicating precise contents of community rights and obligations. It seems that practical application of the community of interest theory is only possible through meticulous and systematic application of positive legal rules based on limited territorial sovereignty theory, in the spirit of joint management and use of common water resources.
Highlights
Access to water is a vital human need
Various international agreements recognize the existence of the common interest, or community of interest in the access to water contained in international watercourse, they do not automatically create legal institutes that would transfer this notion to the concept of joint ownership over these resources. They create joint institutional bodies for management of watercourses or joint plans and programs for their development. These institutions, in order to effectively realize the community of interest in practice, would have to encompass all the riparians of the particular watercourse, to establish solidarity mechanisms in times of water crisis, and to ensure that their management is safe from the influence of regional hegemons that may subvert their institutional capacity for their own interest and not the communal, preventing the realization of free and equal access to water of all the citizens that depend on the particular watercourse for the satisfaction of their vital human needs
The International Court of Justice (ICJ) cited its predecessor in River Oder in regard to the community of interest concept, adding that modern development of international law has confirmed this principle for non-navigational uses of international watercourses
Summary
Access to water is a vital human need. The United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (UN Watercourses Convention) was the first water-related international agreement introducing the term “vital human needs” which has been defined as “sufficient water to sustain human life, including both. This theory is based on the idea that riparian states share a common interest in using the international watercourse. It seems logical that only joint and integral management of the whole watercourse system can ensure optimal use of water and respect of freedom and equality of access to water for all watercourse users As it will be shown, the theory of the community of interest has not exerted a substantial influence on positive international law, and state practices that are inspired by it are sparse (part I). At the end of the article the conclusion based on all previous arguments is given
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