Evolving normativity in contemporary international water law: A communicative approach to the growing role of non‐state actors

Abstract

Legitimacy issues in international law have traditionally related to State consent and legality. This State‐centric paradigm, largely built upon legal formalism, fails to fully capture the various forms of participation of non‐State actors (NSAs) in international water law and their impacts. This is especially true in the context of water governance which, as part of global governance, witnessed an increased delegation of decision‐making authority to global institutions and a growing distance between those exercising authority and the public. This article argues that the communicative approach, embedded within international law, can better account for the role of NSAs in the development of norms in international water law, as these legal norms are formed and developed through communication among actors. Public participation, the main avenue through which NSAs participate in international water law, is essentially a communicative process. Therefore, the essential elements of the communicative approach, including inclusiveness, access to information, interaction and continuation, play not only a constitutive but also a functional role in public participation. Together, they combine to form an analytical framework which can be applied to the analysis of the participation of NSAs in international water law.