The Dual Role of Procedure in International Water Law

Abstract

A distinction between ‘substantive’ and ‘procedural’ obligations has been widely accepted in the international water law field. Nevertheless, a strict division between the core ‘substantive’ obligations of this body of law, namely to utilize water equitably and reasonably and to take steps to avoid significant harm, and its ‘procedural’ obligations, e.g. to exchange information, consult, and notify of planned measures, should be rejected. Such a division underestimates the authoritative force of ‘procedural’ obligations, which greatly contribute to the cooperative management of shared fresh water resources both in their own right and as a tool for the implementation of related ‘substantive’ duties. This chapter reflects on the importance of states’ ‘procedural’ obligations under international water law by examining their dual role: first, to facilitate compliance with the ‘substantive’ principles of this body of law and, second, to independently elicit cooperation between states. The chapter will first describe the content and status of these obligations, both under customary international water law and regional and global instruments. It will then turn to address their dual role in the cooperative management of shared fresh water resources and in the implementation of international water law by states. After providing a brief overview of the principles of equitable and reasonable utilization and no significant harm, the chapter will examine the way in which ‘procedural’ obligations facilitate state compliance with these principles. It will then discuss the interaction between the ‘procedural’ obligations of international water law and states’ independent duty to cooperate under general international law, and how this interaction has informed both treaty practice and the prevention and resolution of fresh water disputes.