MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW : 20 WATER LAW
INTRODUCING AN ANALYTICAL FRAMEWORK FOR WATER SECURITY:
A PLATFORM FOR THE REFINEMENT OF INTERNATIONAL WATER LAW
BJéRN-OLIVER MAGSIG 1
1 INTRODUCTION
The sustainable management of the world's freshwater
resources is one of the most difficult tasks faced by the
global community, affecting virtually all areas of socio-
economic development, especially food and energy
production. Owing to the worsening global water
crisis, increasing local and international tensions over
the control of water resources may not only cause civil
unrest, but also threaten the very foundation of global
security. However, this time of crisis is also a time of
opportunity ± the opportunity to drive new thinking in
international water law forward by asking how the
concept of water security, which has gained political
weight, can be theorized from a legal perspective. This
article will: (1) set the global and regional (Himalayas)
context for the legal discourse by explaining why water
is the `ultimate security'; (2) introduce a legal analytical
framework to examine the concept of water security;
and (3) sketch out a new pathway for addressing the
water security issue through international law.
Tackling global water security is a highly complex chal-
lenge with multilevel and polycentric forces that need
to be taken into account. A summary of the scholar-
ship in the field of water security reveals two quite
distinctive approaches ± one that focuses primarily on
military security (state-centric, examining power-games
and potential inter-state conflicts),2 while the other
stream of work arises from the public international law
context (state sovereignty and nationalism).3 This
stove-piped take on the topic is unsatisfactory ±
especially given the growing global instability. Hence,
this article introduces an innovative approach to
addressing water security, based fundamentally on
international law, but incorporating important changes
to the traditional approach now prevalent in interna-
tional water law scholarship. The next section sets the
context for this discourse.
2 GLOBAL WATER INSECURITY
The challenge of securing safe and plentiful water for all is
one of the most daunting challenges faced by the world
1 The author would like to thank Professor Patricia Wouters for her
valuable suggestions and comments. Any errors or omissions remain
the sole responsibility of the author. Email: bo@magsig.de.
2 M Daoudy `Hydro-Hegemony and International Water Law: Laying
Claims to Water Rights' (2008) 10 Water Policy 89±102; M Zeitoun, J F
Warner `Hydro-Hegemony: A Framework for Analysis of Trans-Boundary
Water Conflicts' (2006) 8 Water Policy 435±60.
3 B Karnad `Security and Sovereignty' in H G Brauch et al (eds)
Globalization and Environmental Challenges: Reconceptualizing Secur-
ity in the 21st Century (Springer Berlin 2008) 421±30.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
61
today [. . .] Our experiences tell us that environmental
stress due to lack of water may lead to conflict and would
be greater in poor nations.4
Increasing local and regional tensions over access to
the world's diminishing freshwater resources are
seriously threatening global stability and international
security ± even without posing an immediate military
threat.5 Despite the obligations set forth in the Charter
of the United Nations (UN Charter), committing all
nation states `to maintain international peace and
security',6 conflicts over water around the world
threaten this fundamental premise. Billions of people
are still denied access to clean drinking water and ade-
quate sanitation,7 and the impacts of climate change
will most likely worsen the situation further. This raises
the questions of how the notions of `security' in
general, and `water' security in particular are perceived
today and what role international law might play in
addressing the evolving global crises.
Without neglecting the importance of other layers of
water security (individual, local, national), the focus of
this article is on the international dimension, since it is
here that the water security challenges have mani-
fested themselves most perceptibly. With more than
260 transboundary watercourses serving no less than
40 per cent of the world's population,8 and covering
more than half of the global land mass (excluding
Antarctica),9 the scale of the issue becomes readily ap-
parent. Furthermore, international watercourses entail
a complex element of geopolitical risk, making trans-
boundary water security even more multi-layered.10 The
mismatch between the increasing demand for water
resources and the declining availability of fresh-
water with sufficient quality, the uneven distribution of
4 Address by the UN Secretary General Ban Ki-moon to the session
`Time Is Running Out on Water' of the Davos World Economic Forum
(24 January 2008) available at http://www.un.org/apps/news/infocus/
sgspeeches/search_full.asp?statID=177.
5 For a detailed analysis of the evolving understanding of `security',
see A Collins (ed) Contemporary Security Studies (OUP Oxford New
York 2007).
6 UN Charter art 1(1) (26 June 1945, entered into force 24 October
1945) Can TS 1945 No 7 (UN Charter).
7 UN Department of Economic and Social Affairs The Millennium
Development Goals Report 2008 (New York 2008) at 40.
8 S E Draper, J E Kundell `Impact of Climate Change on Transbound-
ary Water Sharing' (2007) 133 Journal of Water Resources Planning and
Management 405±14 at 405.
9 J Ma et al `Transboundary Water Policies: Assessment, Comparison
and Enhancement' (2008) 22 Water Resources Management 1069±87 at
1070.
10 UN Environment Programme Atlas of International Freshwater
Agreements (UNEP Nairobi 2002) at 1±2.
62 20 WATER LAW : MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW
resources, and unilateral development of water pro-
jects often constitute disruptive factors in co-riparian
relations.11
3 THE `PERFECT STORM': SECURITY TRIAD OF
ENVIRONMENT, ENERGY AND FOOD
Although it is often described as `creeping',12 the water
crisis already adversely affects communities around
the world. Water scarcity, droughts and floods can be
found in many developed and developing countries
alike, with some of these events triggering local
conflicts.13
Within a couple of decades, some two-thirds of the
world's population will suffer directly from a lack of
freshwater14 and water scarcity could reduce the
annual global crop yield significantly15 ± in spite of a
70±90 per cent increase in global food demand.16 A
recently published study by the 2030 Water Resources
Group warns that in 2030 we will have a 40 per cent gap
between global freshwater supply and competing
demands.17 The biggest problems will be in India,
which will not be able to meet even half of its water
needs in some regions.18 China, too, is in the midst of a
water crisis, as several business ventures had to be
suspended owing to water supply constraints.19 Con-
sidering that global demand for water already exceeds
supply ± more than 1 billion people do not have access
to clean water20 ± the increasing `water gap' is drawing
a dark picture. Global warming will even deepen the
world water crisis, since changes in precipitation and
temperature will lead to changes in runoff and water
11 ibid at 2.
12 M Falkenmark `The Greatest Water Problem: The Inability to Link
Environmental Security, Water Security and Food Security' (2001) 17
Water Resources Development 539±54 at 541.
13 See eg Integrated Regional Information Networks `Kenya:
Drought Exacerbating Conflict among Pastoralists' (2 February 2009)
available at http://www.irinnews.org/Report.aspx?ReportId=82683. In
2008, for example, Spain was required to seek assistance from France
because of severe water shortages and Cyprus brought in tankers of
fresh water from Greece to meet supplies. See E Nash `Arid Barcelona
Forced to Import Water' The Independent (11 April 2008) available at
http://www.independent.co.uk/news/world/europe/arid-barcelona-
forced-to-import-water-807810.html.
14 UN World Water Assessment Programme The United Nations
World Water Development Report 3: Water in a Changing World
(UNESCO Paris 2009) at 36.
15 Some estimate this to be the equivalent of all of the grain crops of
the United States and India combined.
16 World Economic Forum Water Initiative `Managing Our Future
Water Needs for Agriculture, Industry, Human Health and the
Environment: The Bubble Is Close to Bursting: A Forecast of the Main
Economic and Geopolitical Water Issues Likely to Arise in the World
During the Next Two Decades' (http://weforum.org/pdf/water/Water-
initiativeFutureWaterNeeds.pdf 2009) at 10.
17 2030 Water Resources Group `Charting Our Water Future ±
Economic Frameworks to Inform Decision-Making' (2009) at 5 http://
www.mckinsey.com/App_Media/Reports/Water/Charting_Our_Water_
Future_Exec%20Summary_001.pdf.
18 ibid at 49.
19 P H Gleick `China and Water' in P H Gleick et al (eds) The World's
Water 2008±2009 (Island Press Washington DC 2009) 79±100 at 79.
20 U Lall et al `Water in the 21st Century: Defining the Elements of
Global Crises and Potential Solutions' (2008) 61 Journal of Interna-
tional Affairs 1±17 at 2; UN World Water Assessment Programme (n 14)
at 170.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
availability.21 Besides the caused hydrological changes,
the complexity of the science of climate change poses
unique resource allocation and risk management
challenges.22 This added uncertainty to future water
management challenges exacerbates the risk of conflicts
over shared freshwater resources even more ± and
could soon trigger a `perfect storm' of food, energy
and water shortages.23
While the water gap, naturally, will be closed, the
crucial question is how to share the diminishing pie of
freshwater resources. Owing to the dimension of the
challenge, governments around the world have re-
acted with unprecedented measures, such as interna-
tional land grabs, where foreign states acquire well-
watered properties in other countries to meet their
agricultural needs.24 This shows that due to the in-
creasing mismatch between supply and demand, com-
petition over the (re)allocation of this vital resource
gets tougher. In the next section, the region of the
Himalayas will be examined to pinpoint the issues
surrounding international water security.
4 THE TRAGEDY OF THE HIMALAYAS
One of the most vivid examples of the `water security'
threat can be found in the region of the Himalayas,
where some of the most difficult global challenges ± ie
climate change, population growth and urbanization ±
complicate transboundary water resources manage-
ment. Further, two of the main drivers of global
economic growth, China and India, heavily depend
on the runoff of the `water towers' for their develop-
ment. In addition, political tensions between several of
the Himalayan states hamper regional cooperation.
The Himalayas are often referred to as the `third pole',
since the world's greatest repositories of ice and snow
outside the polar regions can be found here.25 Billions
of people depend on the freshwater originating from
the more than 45,000 glaciers in the Tibetan Plateau
which drain into six major Asian river basins ± the
Indus (China, India, Pakistan), the Ganges (India,
Nepal, China, Bangladesh), the Brahmaputra (India,
Bangladesh), the Salween (China, Burma, Thailand),
the Mekong (China, Burma, Laos, Thailand, Cambodia,
Vietnam) and the Yangtze (China).26
21 Intergovernmental Panel on Climate Change (IPCC) Climate
Change 2007: Impacts, Adaptation and Vulnerability ± Contribution
of Working Group II to the Fourth Assessment Report of the IPCC
(Cambridge University Press Cambridge 2007) at 5.
22 Draper (n 8) at 409.
23 UK Government Chief Scientific Adviser John Beddington, quoted
in C McGourty `Global Crisis to Strike by 2030' (19 March 2009) avail-
able at http://news.bbc.co.uk/1/hi/uk/7951838.stm.
24 The Economist `Buying Farmland Abroad ± Outsourcing's Third
Wave' (21 May 2009) available at http://www.economist.com/world/
international/displayStory.cfm?story_id=13692889. See also L Cotula
et al `Land Grab or Development Opportunity? Agricultural Invest-
ment and International Land Deals in Africa' (FAO/IIED/IFAD London/
Rome 2009).
25 J Xu et al `Conservation Focus: Challenges in China ± the Melting
Himalayas: Cascading Effects of Climate Change on Water, Biodiver-
sity, and Livelihoods' (2009) 23 Conservation Biology 520±30 at 520.
26 N Hunt `Melting Mountains' (2009) 39 World Conservation 26±7 at
27; IPCC Climate Change 2007: Impacts, Adaptation and Vulnerability ±
Contribution of Working Group II to the Fourth Assessment Report of
the IPCC (Cambridge University Press Cambridge 2007) at 187.
 MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW : 20 WATER LAW
However, the vital services of this pristine ecosystem
are endangered by several factors, including climate
change, which causes the Himalayan glaciers to shrink
at twice the rate of the global average.27 Even though
the accuracy of the climate change models and the
estimates of glacier retreat has been questioned
recently,28 the devastating impacts of the rapid decay
of the Himalayan glaciers are undisputed.29 While the
melting causes the availability of fresh water to
increase in some regions in the short term, before it
diminishes it will also bring about tremendous damage
through glacial lake outburst floods (GLOF).30
Already, more than 400 out of the 600 largest Chinese
cities experience water shortages.31 It has been
estimated that by 2020 water stress in China could
cause around 30 million people to become environ-
mental refugees.32 In addition to global environmental
changes, it is the convergence of rapid economic
development and population growth that causes the
region's water footprint to soar and turns the competi-
tion for the vital but limited water resources of the
Himalayas into a serious security concern.33 Diminish-
ing water quality is another important issue, not only
posing serious health threats to millions of people
(mainly those living in big cities), but also constraining
economic development.34
All these challenges of managing the numerous trans-
boundary rivers in the Himalayan region impose
enormous pressure on the (re)allocation of the shared
water resources. This becomes evident, reading state-
ments by the President of Pakistan, Asif Ali Zardari, that
the war for Kashmir is not just about acquiring land,
but `it is a war for water as well'.35 As if proof was
needed, the recent terror attack in Pune (India) has
been linked to, inter alia, water issues.36 While those
27 K Layton `Tibetan Waters: Coming Conflict?' Institute of Peace and
Conflict Studies (29 July 2009) available at http://ipcs.org/article/india/
tibetan-waters-coming-conflict-2923.html; see also IPCC Climate Change
2007: The Physical Science Basis ± Contribution of Working Group I to
the Fourth Assessment Report of the IPCC (Cambridge University
Press Cambridge 2007) at 883.
28 F Pearce `Debate Heats up over IPCC Melting Glaciers Claim' New
Scientist (11 January 2010) available at http://www.newscientist.com/
article/dn18363-debate-heats-up-over-ipcc-melting-glaciers-claim.
html?DCMP=OTC-rss&nsref=online-news; E Rosenthal `UN Panel's
Glacier Warning Is Criticized as Exaggerated' New York Times (18
January 2010) available at http://www.nytimes.com/2010/01/19/science/
earth/19climate.html?scp=2&sq=glacier&st=cse.
29 See E Sharma et al `Climate Change Impacts and Vulnerability in the
Eastern Himalayas' (ICIMOD Kathmandu 2009); Xu (n 25) at 527.
30 Sharma ibid at 13.
31 J Xie et al Addressing China's Water Scarcity : Recommendations
for Selected Water Resource Management Issues (World Bank
Washington DC 2009) at 1.
32 C Larson `Hidden Waters, Dragons in the Deep: The Freshwater
Crisis in China's Karst Regions' Circle of Blue (18 January 2010) available
at http://www.circleofblue.org/waternews/2010/world/hidden-waters-
dragons-in-the-deep-the-freshwater-crisis-in-chinas-karst-regions/.
33 Z Haque `Water and Hydro-Conflict in South Asia: Issues and
Challenges' (available at http://bipss.org.bd/download/whsa.pdf 2009).
34 A Crawford, O Brown and V Yang `Growing into Risk ± Emerging
Environment and Security Issues in China' (International Institute for
Sustainable Development Paper 2006) 12.
35 S Ahmed `Water Crisis Biggest Challenge: Zardari' Pakistan
Observer (15 January 2010) available at http://pakobserver.net/201001/
15/news/topstories03.asp.
36 The Hindu `Lashkar Had Warned of Pune as Target' (14 February
2010) available at http://beta.thehindu.com/news/national/article
106326.ece. The blast on 13 January 2010 in Pune (India) left at least
nine people dead and 57 injured.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
63
quotes always have to be taken with a grain of salt,
since most of the time the recipients are voters within
the country rather than the unloved neighbour, it
nevertheless shows the dire situation the states are in.
Tibet, as well as Kashmir, is not only about land or
minerals, as the vast supply of fresh water in the
Tibetan Plateau is considered a strategic resource by
China.37 In order to improve the exploitation of the
watercourse and to achieve stable hydropolitics, states
often regulate the water quantity and quality by
entering into water sharing agreements38 such as the
Indus Waters Treaty,39 the Ganges Water Sharing
Treaty40 and the Mekong Agreement.41
Notwithstanding the fact that even hostile countries
including India and Pakistan have reached an agree-
ment about how to share their waters peacefully, some
experts claim that the future challenges of transbound-
ary water management will put a hard test on the
sanctity of the region's treaties.42 While the added
challenge of uncertainty caused by climate change
requires a reasonable amount of flexibility, the high
stage of development along the majority of rivers ±
focusing on increasing supply (by building reservoirs,
digging wells and constructing canals) rather than
managing demand ± often only allows for rigid water
management.43 Furthermore, the lack of hydrological
data from the Himalayas makes efficient and future-
proof management of the region's river basins a rather
difficult task.44
In addition, unilateral development of water projects
jeopardises the shaky peace in volatile regions such as
Kashmir and Tibet. Plans by China to divert water from
the Tibetan Plateau ± through the so called `South-
North Water Transfer Project' ± to the Yellow River
might alleviate water stress in some parts of China, but
will also negatively affect the flow of the Brahmaputra to
the downstream countries of India and Bangladesh.45
Those massive inter-basin water transfer projects
follow the recognition of the disastrous state China's
37 K Schneider, C T Pope `China, Tibet, and the Strategic Power of
Water' Circle of Blue (8 May 2008) available at http://www.circleofblue.
org/waternews/2008/world/china-tibet-and-the-strategic-power-of-
water.
38 A Swain `Water Wars: Fact or Fiction?' (2001) 33 Futures 769±81 at
772.
39 Treaty between India and Pakistan Regarding the Use of the
Waters of the Indus (19 September 1960, entered into force 1 April
1960) 419 UNTS 125 (1960) (Indus Waters Treaty).
40 Treaty Between the Government of the Republic of India and the
Government of the People's Republic of Bangladesh on Sharing of the
Ganga/Ganges Waters at Farakka (12 December 1996, entered into
force 12 December 1996) reprinted in 36 ILM 523 (1997) (Ganges Water
Sharing Treaty).
41 Agreement on the Cooperation for the Sustainable Development
of the Mekong River Basin 5 April 1995 (entered into force 5 April 1995)
reprinted in 34 ILM 864 (1995) (Mekong Agreement).
42 A Parvaiz `India/Pakistan: Reduced Himalayan Snowfall Could
Spark Water War' Inter Press Service (18 January 2010) available at
http://www.globalissues.org/news/2010/01/18/4227.
43 Xie (n 31) at 35.
44 C Mahanta `Integrated Basin Development and Management for
Himalayan Sub-regional Cooperation in Water Security' (16 January 2010)
available at http://www.bipss.org.bd/download/hscws/S3_Chandan
Mahanta.pdf.
45 Layton (n 27); L Ling Tibet's Water Will Save China (in Mandarin)
(Chinese Ministry of Water Resources Beijing 2005).
64 20 WATER LAW : MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW
freshwater resources are in.46 However, instead of
tackling the problems at the source, the proposed pro-
jects merely export China's water crisis to other regions,
such as Tibet and Bangladesh, and thus also carry seeds
of inter-state conflict. Considering the fact that China,
India and Pakistan are nuclear powers adds another
security threat to the water issues of the region.47
It is evident that water security in the Himalayas has to
be addressed at the regional level. Following a purely
state-centred approach is absolutely inappropriate;
since here, due to the high level of interdependence,
even the respective international river basins are an all
too small management zone.
5 THE NOTION OF `WATER' SECURITY
We may have more fighting over water in 20 years than we
do over oil.48
This is as big as malaria, as big as HIV/AIDS. It's bigger than
tsunamis, bigger than earthquakes; more people are
affected each year by the water crisis than by all wars in
any given year. It's a crisis as big as we face. [. . .] Our lack of
will to grapple with this issue is astonishing and perhaps
criminal.49
These quotes show quite vividly the two opposing
approaches to water security. The former fits into the
`water wars v water for peace' debate, while the latter
recognizes the fact that security, nowadays, is more
than just the absence of military conflict.
Despite the fact that the last war solely fought over
water resources occurred some 4500 years ago,50 it has
been used as a military target, tool or objective
consistently over time.51 Although this traditional
`narrow' military facet of water security should not
be ignored, it seems that this area has been sufficiently
dealt with in international law.52 While originally,
`security' simply means a state of living without care
and concern,53 the concept underwent a remarkable
46 Crawford (n 34); P H Gleick `China and Water' in Gleick (n 19) 79±
100.
47 J F Brennan The China-India-Pakistan Water Crisis: Prospects for
Interstate Conflict MA Dissertation in Security Studies (Naval Post-
graduate School Monterey CA 2008) 40.
48 Former US President Bill Clinton on the `Late Show with David
Letterman' (22 September 2009) available at http://www.businessand
media.org/articles/2009/20090923142634.aspx.
49 Aaron T Wolf during a UN General Assembly Economic and
Financial Committee panel discussion (6 November 2009) cited in UN
General Assembly Economic and Financial Committee `Panel Discus-
sion on Enhancing Governance on Water' (2009) 2.
50 A treaty ended the `water war' between the ancient Mesopota-
mian city states of Lagash and Umma. See S L Postel, A T Wolf
`Dehydrating Conflict' Foreign Policy (2001) 60±71 at 60.
51 P H Gleick `Water and Terrorism' (2006) 8 Water Policy 481±503 at
482; M Smith et al `The Big Question: Will Global Conflict Flow from
the Quest for Water Security?' (2009) 26 World Policy Journal 5±8 at 5.
See also Pacific Institute `Water Conflict Chronology' (November 2009)
available at http://worldwater.org/chronology.html.
52 See P Wouters, S Vinogradov and B-O Magsig `Water Security,
Hydrosolidarity and International Law: A River Runs through It . . .'
(2009) 19 Yearbook of International Environmental Law 97±134 at 122±26.
53 Derived from the Latin sine cura, see J F Warner, R Meissner `The
Politics of Security in the Okavango River Basin: From Civil War to
Saving Wetlands (1975±2002): A Preliminary Security Impact Assess-
ment' in N I Pachova, M Nakayama and L Jansky (eds) International
Water Security: Domestic Threats and Opportunities (UN University
Press Tokyo New York 2008) 252±86 at 254.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
evolution. Within the discipline of security studies,
traditional approaches have focused primarily on
military threats to the integrity of nation states.54 This
line of discourse changed considerably during the
1980s, when it was recognized that various new sources
of insecurity ± ie economic, social and environmental ±
could not be considered solely through the military
lens.55
This `widening' process ± the inclusion of non-military
threats ± was complemented by efforts to also
`deepen' security studies. Here, the approach was to
regard the individual, rather than the state, as the chief
referent object ± with the concept called `human
security'.56 From this followed the `essential freedoms'
discourse, placing the security paradigm within the
following fundamental freedoms ± the freedom from
want, the freedom from fear, the freedom to live with
human dignity and the freedom from hazardous
impact.57 The widening and deepening process also
led to the notions of collective and sustainable
security.58 No longer can security be regarded as a
zero sum game between states ± a contemporary take
on the subject reveals its `common' characteristic.
While the debate about fully fledged wars over
freshwater resources is popular in the media, it can
be argued that it constitutes a red herring ± distracting
from the real issues. The numbers of people affected
by, or even dying due to, lack of access to fresh water
and sanitation speak for themselves. Each year, more
than 3.5 million people die because of poor water,
sanitation and hygiene.59 This clearly suggests that a
wider approach to water security is needed than the
narrow military one. Continually, the discourse about
cooperation and conflict over water, as appealing as it
is, misses out important analytical nuances as well ±
such as the quality of cooperation and the level of
conflict. All the same it is misleading to merely
subsume water within the field of environmental
security.60 Undeniably, freshwater provides for valu-
able ecosystem goods and services, but it is essential
for so much more ± eg industrial use (including
thermoelectric power generation), irrigation, aquacul-
ture, timber products, flood control, transportation,
54 H G Brauch `Introduction: Globalization and Environmental
Challenges: Reconceptualizing Security in the 21st Century' in Brauch
(n 3) 27±43 at 28.
55 B Buzan People, States and Fear: An Agenda for International
Security Studies in the Post-Cold War Era (2nd edn Harvester Wheatsheaf
London 1991) at 2.
56 O Brown `The Environment and Our Security ± How Our
Understanding of the Links Has Changed' International Conference
on Environment, Peace and Dialogue among Civilizations Tehran, Iran
(2005) at 2.
57 United Nations A More Secure World: Our Shared Responsibility ±
Report of the Secretary-General's High-Level Panel on Threats,
Challenges and Change (United Nations New York 2004) at 77.
58 W Scholtz `Collective (Environmental) Security: The Yeast for the
Refinement of International Law' Yearbook of International Environ-
mental Law 19 (2009) 135±62; C Voigt `Sustainable Security' Yearbook of
International Environmental Law 19 (2009) 163±96.
59 C J Schuster-Wallace et al Safe Water as the Key to Global Health
(UN University, International Network on Water, Environment and
Health Hamilton 2008) at 8.
60 See eg J BrunneÂe, S J Toope `Environmental Security and
Freshwater Resources: Ecosystem Regime Building' (1997) 91 American
Journal of International Law 26±59.
 MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW : 20 WATER LAW
recreation, hydropower generation ± to name but a
few.61 Considering the integral nature of this precious
resource, water surely deserves special treatment as
one of the key components of `ultimate security'.62
6 WATER SECURITY ADDRESSED THROUGH A
LEGAL ANALYTICAL FRAMEWORK
Although `water security' is now high on the national
and global policy agendas, its precise definition and
normative parameters remain a work in progress, to-
wards which international law can and should con-
tribute.63 While there may exist different views on the
actual role of international law in preventing conflicts
and ensuring the fair use of transboundary water
resources,64 the world water crisis cannot be alleviated
without certain generally recognized and agreed `rules
of the game'.
But how can the concept of water security actually be
implemented in international law? Building upon
earlier work,65 and considering this case study, this
article argues that water security can be robustly ex-
amined through the following legal framework, under
issues related to: (1) availability; (2) access; (3) adapt-
ability; and (4) ambit. These four elements comprise
important legal focal points for understanding the
concept of water security through the prism of inter-
national law. The next section explains the normative
content of each of these integral components of the
analytical framework being introduced here.
6.1 Availability
Matters of `availability' of freshwater resources con-
cern both water quality and quantity issues ± includ-
ing, for example, hydrological and ecological status.
This element is primarily concerned with the manage-
ment of the resource as such, including its control and
sustainable protection. The legal rules addressing the
quantitative aspects are numerous and, at the interna-
tional law level, are found predominantly in treaty law,
where states aim to give specific meaning to the
underlying principles of international water law.66 To
spread the risk of water scarcity among all parties,
states often allocate water according to percentage
and time of flow, rather than a fixed amount,67 and
61 UN World Water Assessment Programme (n 14) at 91.
62 E Burleson `Water Is Security' (2008) 31 Environs ± Environmental
Law and Policy Journal 197±214; N Myers Ultimate Security: The Envi-
ronmental Basis of Political Stability (W W Norton New York 1993).
63 W J Cosgrove Water Security and Peace: A Synthesis of Studies
Prepared under the PCCP-Water for Peace Process (UNESCO Paris
2003) 25±45.
64 D Tarlock `Water Security, Fear Mitigation and International Water
Law' (2008) 31 Hamline Law Review 704±29 at 719.
65 Wouters (n 52) 106.
66 See eg the Indus Waters Treaty (n 39) art 1, Treaty between His
Majesty's Government of Nepal and the Government of India concern-
ing the Integrated Development of the Mahakali River including Sarada
Barrage, Tanakpur Barrage and Pancheshwar Project, 12 February 1996
(entered into force June 1997) reprinted in 36 ILM 531 (1997) (Mahakali
Water Treaty).
67 I Fischhendler `Legal and Institutional Adaptation to Climate
Uncertainty: A Study of International Rivers' (2004) 6 Water Policy 281±
302 at 283.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
65
often negotiate some `escape clause', allowing coun-
tries suffering from water stress to deliver less water
than they would have to under normal conditions.68
Obligations in water-sharing agreements relating to
pollution prevention and control, however, are rather
few.69 The legal response to the destructive impact of
water-related natural disasters such as flooding is
primarily stipulated by rules addressing emergency
preparedness and response.70 Further, maintaining the
natural integrity of the freshwater resource, by calling
for environmental flows, must also be addressed in the
sphere of `availability'.71 With the recently introduced
term `peak ecological water', which describes the point
where the next increment of water causes more
ecological harm than it provides economic benefit,
new thinking in the sustainable management of water
resources has emerged.72 Again, international water
law provides tools for addressing the protection and
sustainability of shared watercourses.73
Considering the grim situation in the Himalayas ± with
some of the world's greatest rivers being heavily
polluted, groundwater overexploited and parts of the
region being hit by severe water scarcity74 ± it seems
astonishing that even here the international legal
response is so weak. The few treaties that have been
concluded between riparian states often do not cover
matters of water quality.
6.2 Access
The issue of `access', or the right to make use of the
water resource, is at the core of the water security
debate and covers a wide spectrum of concerns across
a mounting range of users and uses regarding matters
of (re)allocation. The right of a state to use the waters
of an international watercourse is essentially deter-
mined by the cornerstone principle of `equitable and
reasonable use', which performs two functions. First, it
establishes the objective to be achieved (an equitable
and reasonable use), which, in turn, determines the
lawfulness of new or increased utilization of an inter-
national watercourse. The norm also constitutes an
important operational function at the process level,
68 Since downstream states often oppose the use of such a clause, as
it implies that they will receive less water during times of drought, it is
often accompanied by a deficit mechanism, compelling the upstream
state to return the amount of water shortfall once the drought ends.
See eg art 4(B)(d) of the Treaty between the United States of America
and Mexico relating to the Utilization of the Waters of the Colorado
and Tijuana Rivers and of the Rio Grande (Colorado-Rio Grande Treaty)
14 November 1944 (entered into force 8 November 1945) available at
http://ocid.nacse.org/tfdd/tfdddocs/55ENG.htm.
69 eg Mekong Agreement (n 41) art 7.
70 ibid arts 1,10.
71 A Forslund et al `Securing Water for Ecosystems and Human Well-
Being: The Importance of Environmental Flows' (2009) 24 Swedish
Water House Report.
72 See M Palaniappan, P H Gleick `Peak Water' in Gleick (n 19) 1±16.
73 United Nations Convention on the Law of the Non-Navigational
Uses of International Watercourses (21 May 1997, not yet entered into
force) UN Doc A/51/869, reprinted in 36 ILM 700 (1997) (UN Water-
courses Convention) arts 5, 20; UNECE Convention on the Protection
and Use of Transboundary Watercourses and International Lakes (17
March 1992, entered into force 6 October 1996) reprinted in 31 ILM
1312 (1992) (UNECE Helsinki Convention) art 2(2).
74 Crawford (n 34); Xie (n 31).
66 20 WATER LAW : MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW
requiring that all relevant factors and circumstances
are taken into account when determining what exactly
qualifies as a permissible (equitable and reasonable)
use ± and this obligation to balance all interests is
essential to the matter of `access'.75 The UN Water-
courses Convention provides a non-exhaustive list of
factors to be considered in each case under considera-
tion ± each factor being equal in weight, although
there might be a priority of use regarding vital `human'
and `environmental' needs.76
However, the issue of fairness of access continues to
divide states in various transboundary river basins.
Earlier this year, Nepalese Maoists destroyed copies of
the Mahakali Water Treaty77 between India and Nepal
in public, arguing the agreement is unfair and against
the interest of Nepalese people.78 This shows that the
complex issue of `access' will continue to be one of the
most difficult legal challenges on the quest to achiev-
ing water security.
This is why the peaceful prevention, management and
resolution of actual or potential conflicts ± ie situations
when there is no sufficient amount of water with the
adequate quality to satisfy competing needs ± through
the use of dispute prevention and settlement mechan-
isms are among the most important functions of inter-
national water law.79 In practice, this problem is being
dealt with in a number of ways ± from procedures
aimed at conflict avoidance, to more formal mechan-
isms designed to resolve deadlocked international
disputes. One example from the Himalayan region can
be found in the Mekong Agreement, where Articles 34
and 35 provide that differences are to be resolved, first
by the Mekong River Commission, failing which the
matter is passed on to the governments for negotia-
tion. A different approach has been taken by the Indus
Waters Treaty, where the Permanent Indus Commis-
sion plays a major role in the settlement of disputes,
serving `as the regular channel of communication on
all matters relating to the implementation of the
Treaty'.80 Issues which cannot be resolved under this
construct may then be heard by a `neutral expert' at
the request of either commissioner.81
Where deadlocks in disputes nevertheless arise,
international law requires the peaceful resolution of
75 P Jones The Application of Equitable and Reasonable Utilization to
Transboundary Water Resources Disputes: Lessons from International
Practice PhD Thesis (University of Dundee Dundee 2009).
76 UN Watercourses Convention arts 6, 10, 21; see also UN Water-
courses Convention, Statements of Understanding 36 ILM 700 (1997) at
719.
77 Mahakali Water Treaty (n 66).
78 A Roul `India-Nepal: Time to Strengthen Ties' Asia Security Initiative
(18 January 2010) available at http://asiasecurity.macfound.org/blog/
entry/111india-nepal_time_to_strengthen_ties/.
79 B Schreiner `Issues of Balancing International, Environmental and
Equity Needs in a Situation of Water Scarcity' in A Dinar, J Albiac (eds)
Policy and Strategic Behaviour in Water Resource Management (Earth-
scan London Sterling VA 2009) 207±32.
80 Indus Waters Treaty (n 39) art VIII.
81 ibid art IX. This mechanism has been used for the first time in
2007; see R Lafitte `Expert Determination on Points of Difference
Referred by the Government of Pakistan under the Provisions of the
Indus Water Treaty, Executive Summary' (12 February 2007) available at
http://siteresources.worldbank.org/SOUTHASIAEXT/Resources/223546-
1171996340255/BagliharSummary.pdf.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
the differences through `negotiation, enquiry, media-
tion, conciliation, arbitration, judicial settlement, re-
sort to regional agencies or arrangements, or other
peaceful means'.82 In this regard, India and Pakistan
have recently agreed (at least) on a roadmap to resolve
the disputes regarding their shared management of
the Indus, in order to prevent a military conflict
between the two countries.83
6.3 Adaptability
A future-focused framework for governing trans-
boundary watercourses has to include flexibility and
ensure adaptability to address changing conditions.
This is mainly reflected by the tension between the
preservation of the status quo (predictability) and the
required innovation to meet new demands. Riparian
states need certainty on the quantities and qualities of
the shared water resources they are entitled to use and
obliged to provide ± and this within changing supply
and demand situations. One of the important roles of
law, relevant in this regard, is its functional task of
providing for a `security of expectations', which may
seem like a static concept, but proves essential within
constantly changing societal, political and security
related needs.84
In addition to this legal quandary, the impacts of
climate change, population growth and economic
development are all uncertain variables which heavily
affect transboundary water management. In the wake
of the recent controversy over the exact science
regarding the retreat of Himalayan glaciers,85 the issue
of uncertainty has gained even more importance.
Further, `security' as such is a moving target rather
than an end in itself. The perception of the concept
not only correlates with the needs of the various users
± it also highly depends on the respective international
relations. Hence, in order to be able continuously to
adapt to the complex emerging trends and challenges,
any regime governing shared freshwater resources has
to be reasonably flexible.86
While the Himalayas are facing severe challenges
regarding uncertainty due to the aforementioned
pressures, most of the transboundary water agree-
ments have one inherent shortcoming: they are in
principle rigid instruments; since they can only be
modified according to their terms or by mutual agree-
ment.87 Hence, if a treaty lacks flexible tools and a
situation of water stress occurs, one party to the
agreement may have to reduce its water consumption
in order to be able to comply with its international
obligations. If it fails to do so, disputes over the shared
82 UN Charter (n 6) art 33.
83 A F Khan `Accord on Roadmap to Settle Pak-India Water Dispute'
DAWN (11 February 2010) available at http://www.dawn.com/wps/wcm/
connect/dawn-content-library/dawn/the-newspaper/front-page/06-
agreement-on-roadmap-to-settle-pakindia-water-dispute-120-rs-01.
84 M Bothe `Security in International Law since 1990' in H G Brauch
et al (eds) Globalization and Environmental Challenges: Reconceptua-
lizing Security in the 21st Century (Springer Berlin 2008) 475±85 at 475.
85 Rosenthal (n 28).
86 S C McCaffrey `The Need for Flexibility in Freshwater Treaty
Regimes' (2003) 27 Natural Resources Forum 156±62 at 161.
87 ibid at 157.
 MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW : 20 WATER LAW
watercourse are likely to ensue.88 In a case where
water stress causes asymmetric harm, the harmed state
may want to terminate the agreement, while the co-
riparian state may want to stick to it, as it still benefits
from the treaty. In its judgment in the GabcÏÂõkovo-
Nagymaros case, the International Court of Justice
(ICJ) concluded that `[. . .] the stability of treaty
relations requires that the plea of fundamental change
of circumstances be applied only in exceptional
cases'.89 The ICJ further stated that new developments
or changing conditions should be dealt with on the
level of implementation of the treaty; not by terminat-
ing it.90 Hence, a treaty is only as static as its specific
terms require. Nonetheless, even if the parties agree to
renegotiate their agreements ± and several studies
come to the conclusion that they will have to in the
near future91 ± this sensible diplomatic process may be
too lengthy to adapt effectively to rapid changes in the
availability of, or demand for, shared freshwater
resources. Here again, the reconsideration of the
Indus Waters Treaty serves as a perfect example.92
6.4 Ambit
The final element of the analytical framework intro-
duced here is the concept of `ambit', which, in this
context, can be defined to describe and delimit the
scope of water security ± ie the sphere of influence of
the notion. The approach here is twofold: in addition
to the traditional meaning of `scope'93 it has also to
reflect the `common' challenges of water insecurity.
With regard to the hydrological extent of the waters
covered by a legal regime, international agreements
employ various terms such as `international water-
course',94 `international drainage basin',95 `water re-
sources'96 or `tributaries'.97 The issue of ambit, in this
instance, also determines the range of stakeholders
legally eligible to participate in the utilization of the
watercourse. International practice has demonstrated
increasing support for adopting a basin-wide approach
to the management of transboundary waters,98 which
88 Fischhendler (n 67) at 284.
89 Case Concerning the GabcÏõÂkovo-Nagymaros Project (Hungary v
Slovakia) General List no 92 (1997) reprinted in 37 ILM 162 (1998) Rep 7
para 104.
90 ibid para 112.
91 G Goldenman `Adapting to Climate Change: A Study of Interna-
tional Rivers and Their Legal Arrangements' (1990) 17 Ecology Law
Quarterly 741±802.
92 M Bhatnagar `Reconsidering the Indus Waters Treaty' (2009) 22
Tulane Environmental Law Journal 271±314 at 303.
93 P Wouters et al Sharing Transboundary Waters: An Integrated
Assessment of Equitable Entitlement: The Legal Assessment Model
(UNESCO Paris 2005) at 19.
94 UN Watercourses Convention (n 73) art 2(b).
95 Helsinki Rules on the Uses of International Rivers art II, adopted
by the ILA at the 52nd Conference (Helsinki, August 1966) reprinted in
S Bogdanovic International Law of Water Resources: Contribution of
the International Law Association (1954±2000) (Kluwer Law Interna-
tional London 2001).
96 UNECE Helsinki Convention (n 73) art 4.
97 Indus Waters Treaty (n 39) art I(2); Mekong Agreement (n 41) art 5.
98 See Commentary to the Draft Articles on the Law of the Non-
Navigational Uses of International Watercourses, in ILC `Report of the
International Law Commission on the Work of Its Forty-Sixth Session'
Yearbook of the International Law Commission 2 (1994) at 93 (citing
treaty practice and doctrine in support of the basin-wide approach).
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
67
has important implications for the level of water
security.99 Still, several international watercourse
agreements lack the involvement of all riparian states ±
like the Indus Waters Treaty or the Mekong Agreement
± which is highly problematic given the regional
challenges, where basin-wide cooperation should be
encouraged.100 However, the Dhaka Declaration on
Water Security, calling for a collective approach to the
water challenges of the Himalayan region, is an
example of the emerging change of mindset.101
Another matter which plays into the issue of `ambit' is
the scope of subjects covered by the regime. Here, the
extent ranges from merely quantitative agreements
(such as the Indus Waters Treaty) to sophisticated
institutions which also govern qualitative aspects and
emergency situations (eg the Mekong River Commis-
sion).102 It is obvious that the most effective manage-
ment of transboundary watercourses for the benefit of
all basin states can only be achieved through a truly
joint strategy involving all disciplines and sectors
across borders.103
In addition to the orthodox understanding of `scope',
the concept of `ambit' also addresses the fact that
water security has to be perceived as a collective
security issue. Unsustainable management of fresh-
water resources by one country is not only a direct
threat to the state itself but also to other states ± even
outside the basin, due to the interconnectedness of
the globalized world and the role water plays in linking
the various emerging crises. No longer can water be
seen as a national security issue, since the most funda-
mental common value is under threat ± the survival of
humankind.104
Further, while water management is a local issue ± with
policies being implemented at the local, sub-basin or
catchment level ± several aspects, like the `right to
water' or principles of non-navigational use of inter-
national watercourses, are debated in the global arena.
This clearly points to the dynamics between the dif-
ferent scales; and the necessity of international water
law to act as an interface between those layers.105 Not
only will the effectiveness of certain international rules
and obligations heavily depend on supporting domes-
tic norms (and vice versa) ± the impact of treaties
outside the `water box'106 on state behaviour regarding
99 Wouters (n 52) at 111.
100 Tarlock (n 64) at 728.
101 Second International Workshop on `Himalayan Sub-regional
Cooperation for Water Security' Dhaka (15±16 January 2010) available
at http://www.bipss.org.bd/download/DhakaDeclaration.pdf; hosted
by the Bangladesh Institute of Peace and Security Studies (BIPSS) in
collaboration with the Strategic Foresight Group, India.
102 Mekong Agreement (n 41) art 11.
103 N Ely, A Wolman `Administration' in A H Garretson, R D Hayton
and C J Olmstead (eds) The Law of International Drainage Basins
(Oceana Publications Dobbs Ferry NY 1967) 124±59 at 137.
104 Scholtz (n 58) at 162.
105 A Rieu-Clarke `The Role of Treaties in Building International
Watercourse Regimes: A Legal Perspective on Existing Knowledge'
Water Policy. In press uncorrected proof available at http://www.iwap
online.com/wp/up/pdf/wp2010039.pdf.
106 UN Convention on Biological Diversity (5 June 1992, entered into
force 29 December 1993) reprinted in 31 ILM 818 (Biodiversity Conven-
tion); UN Framework Convention on Climate Change (9 May 1992,
entered into force 21 March 1994) reprinted in 31 ILM 849 (UNFCCC).
68 20 WATER LAW : MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW
the management of shared watercourses has to be
considered as well.107 Moreover, the concept of water
security has to be open to new ideas about how to
tackle the world water crisis; and thus being able to
comprehend emerging notions such as virtual water or
peak ecological water which try to reflect and address
the interconnected of the global crises of food, energy
and environment.108
In view of the scattered approaches to transboundary
water management ± not only in the region of the
Himalayas ± it is obvious that most legal frameworks
are lacking full support of the concept of `ambit'.109
The next section will draw provisional conclusions on
how international law has to be refined in order to
remain fit for addressing current and future water
security challenges of availability, access, adaptability
and ambit. In so doing, areas for future research will
be identified by highlighting promising avenues inter-
national water scholars should pursue.
7 IMPLICATIONS FOR INTERNATIONAL
WATER LAW
We have entered an era [. . .] in which international law
subserves not only the interests of individual states, but
looks beyond them and their parochial concerns to the
greater interests of humanity and planetary welfare [. . .]
International environmental law will need to proceed
beyond weighing [. . .] rights and obligations [. . .] within a
closed compartment of individual state self-interest, un-
related to the global concerns of humanity as a whole.110
While international water law consists of a large body
of treaty law, it mainly revolves around its fundamental
principle of equitable and reasonable use. The same is
true for the proposed framework of water security,
which draws heavily from this rule of customary inter-
national law. However, this guiding principle is not
without flaws. Its main shortcoming seems to be the
struggle truly to reflect the regional approach of water
security. Whereas the ecological unity of a watercourse
demands for management striving for the overall
benefits, `equitable and reasonable use' still allows
for bickering over diverging sovereign interests, and
thus focuses on relative national benefits. Even the
concept of `benefit sharing', which tries to achieve the
best possible outcome in transboundary water nego-
tiations,111 misses the point that it still divides the
107 Rieu-Clarke (n 105).
108 M Nakayama `The Implications of Domestic Security Policy for
International Water Issues in the Context of ``Virtual'' and ``Real'' Water:
The Aral Sea and Mekong River Basins' in Pachova (n 53) 180±92;
Palaniappan (n 72) 1±16.
109 See A Rieu-Clarke, F R Loures `Still Not in Force: Should States
Support the 1997 UN Watercourses Convention?' (2009) 18 Review of
European Community & International Environmental Law 185±97 at
197.
110 Case Concerning the GabcÏõÂkovo-Nagymaros Project (n 87) Rep 7,
separate opinion of Vice-President Weeramantry, at C(c); as cited in J
BrunneÂe `Common Areas, Common Heritage, and Common Concern'
in D Bodansky, J BrunneÂe and E Hey (eds) The Oxford Handbook of
International Environmental Law (Oxford University Press Oxford
2007) 550±73 at 551.
111 D J H Phillips et al `The TWO Analysis ± Introducing a
Methodology for the Transboundary Waters Opportunity Analysis'
(2008) 35 SIWI Report.
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
watercourse into jurisdictional matters and splits up
national benefits.
Further, the notion of security has to be regarded as an
evolutionary process ± one which continuously trans-
forms and generates emerging challenges. The ever
increasing complexity and the linkages with other
forms of security entail the need to review established
paradigms ± including some of the most fundamental
tenets of international law, such as state sovereignty.112
Evidently, a fresh mindset is needed ± one which will
ultimately be able to overcome the still prevalent pat-
tern of `hydro-egoism'.113 Considering the widely recog-
nized need to strengthen regional cooperation be-
tween states sharing water resources, it seems surpris-
ing that there is still resistance to adopting such an
approach. This is mainly due to the tension between
the ecological unity of the watercourse and the states'
perception of the nature and extent of their sovereignty
over the respective territories where the resource is
located.114 This state-centred opposition does not
match the growing global interdependence on shared
water resources; and thus places the international com-
munity at the tipping point of global water insecurity.
From the perspective of `collective security', the notion
of water security ultimately challenges the supremacy
of absolute national sovereignty.115 The framework of
the `4 As' promotes this development by acknowl-
edging that the best possible management of trans-
boundary freshwater resources can only be achieved
with a truly common strategy, bringing together law
and politics, and being open-minded for new ap-
proaches to alleviate the world water crisis. However,
the support of international law for such an aspiration
is missing as for now. What is needed to improve water
security is a legal foundation which better addresses
the `common' character of shared freshwater re-
sources. Here, one could think of considering water
security as a matter of `regional common concern',
drawing from the notion of `common concern of man-
kind' and the concept of `community of interest'.116
While it might be true that until now `the lack of any
wide state practice [. . .] puts in doubt the possibility
that the community of interest doctrine has entered
the body of international customary law', 117 this
112 BrunneÂe (n 60) at 56.
113 M Falkenmark et al `Hydrosolidarity through Catchment Based
Balancing of Human Security and Ecological Security' contribution to
the Virtual World Water Forum, Kyoto (2003); see also M Falkenmark, C
Folke `The Ethics of Socio-Ecohydrological Catchment Management:
Towards Hydrosolidarity' (2002) 6 Hydrology and Earth System
Sciences 1±9.
114 S Vinogradov `Regime Building for Transboundary Waters: The
Evolution of Legal and Institutional Frameworks in the EECCA Region'
(2007) 18 Journal of Water Law 77±94 at 78.
115 R Falk `The Coming Global Civilization: Neo-Liberal or Huma-
nist?' in A Anghie, G Sturgess (eds) Legal Visions of the 21st Century ±
Essays in Honour of Judge Christopher Weeramantry (Kluwer Law
International The Hague 1998) 15±32 at 29±31; C G Weeramantry
Universalising International Law (M Nijhoff Publishers Leiden 2004)
103±50.
116 BrunneÂe (n 110) 550±73; M K Tolba `The Implications of the
``Common Concern of Mankind'' Concept on Global Environmental
Issues' (1991) 13 Revista IIDH 237±46.
117 M Fitzmaurice `Water Management in the 21st Century' in Anghie
(n 115) 425±63 at 429.
 MAGSIG : A FRAMEWORK FOR WATER SECURITY IN INTERNATIONAL WATER LAW : 20 WATER LAW
argument has to be re-examined within the context of
the looming world water crisis and the increased inter-
dependence of states sharing the freshwater re-
sources. Truly embracing the notion of `ambit,' which
does justice to the fact that security can no longer be
regarded as a zero sum game between states, will
promote a take on water security which acknowledges
that `ultimate' (ie common and sustainable) security
can only be achieved through a truly joint strategy for
the benefit of all states in the region.
This line of thought, however, requires further research,
including an examination of the evolving nature of
collective security and the role and relevance of
international water law within this discourse.
8 CONCLUDING REMARKS
Only a crisis ± actual or perceived ± produces real change.
When that crisis occurs, the actions that are taken depend
on the ideas that are lying around. That, I believe, is our
basic function: to develop alternatives to existing policies,
to keep them alive and available until the politically
impossible becomes politically inevitable.118
Recalling the commitment of all nation states `to
maintain international peace and security',119 the lack
of collective political will to address global water
insecurity with the utmost effort must be examined in
more detail. This article has introduced the `4 As' legal
118 Milton Friedman in M Friedman, R D Friedman Capitalism and
Freedom (University of Chicago Press Chicago 1982) at ix.
119 UN Charter (n 6) art 1(1).
THE JOURNAL OF WATER LAW PUBLISHED BY LAWTEXT PUBLISHING LIMITED
WWW.LAWTEXT.COM
69
analytical framework as a comprehensive template for
rigorously examining the key issues related to water
security in the context of transboundary freshwater
management. In so doing, the work contributes to a
more holistic take on the traditional international
water law approaches in this area, and invites further
research on this topic.
However, such a change in international law can only
materialize when it serves states' interest.120 Thus, it is
our responsibility to promote the understanding that
as long as we keep focusing on ourselves, pursuing
only our own benefits, we will fail in achieving
`ultimate security'. Here, the concept of water security,
while still in an early stage of development and only
gradually stretching from the purely political land-
scape into the legal domain, provides a new way of
thinking ± one which may eventually be capable of
overcoming state-centrism.121
In closing, it is hoped that the new perspectives gained
by introducing and applying the water security frame-
work of availability, access, adaptability, and ambit
provide a platform which enhances the relevance and
role of international water law in this challenging area.
Not all is dire in this time of crisis. If we rethink and
develop the fundamental basis of international law
further, we will make the most out of this time of
opportunity.
120 E Posner The Perils of Global Legalism (University of Chicago
Press Chicago 2009) at xv.
121 Wouters (n 52) at 131.