McIntyre, O. (2023). Advanced Introduction to International Water Law. Edward Elgar, 205pp. ISBN: 978 1 80220 672 2. 90 £ (Hardback), 23 £ (Paperback and ebook)
(URL: https://www.e-elgar.com/shop/gbp/advanced-introduction-to-international-water-law-9781802206722.html)
Erin O’Donnell
University of Melbourne Law School
To cite this review: O’Donnell, E. (2024). Review of “Advanced Introduction to International Water Law”, Edward Elgar Publishing 2023, by Owen McIntyre, Water Alternatives, https://www.water-alternatives.org/index.php/boh/item/380-advanced
International water law is hitting the headlines (James, 2024). In the Colorado River, USA, over-estimated supplies, over-extraction, climate-change induced water scarcity, and increasing recognition of Tribes’ water rights are demonstrating the unworkability of existing transboundary agreements (Rivera-Torres et al., 2021; Grigg, 2023). In Bangladesh, severe floods are raising questions whether more could be done by upstream states to mitigate major floods (Vij et al., 2019; Bhattacharya, 2024). In the Global South, new hydroelectric dams are having devastating impacts on transboundary river connectivity and flow regimes (Ziv et al., 2012; Castro-Diaz et al., 2023).
In this context, it is essential for water law scholars, water lawyers and water policy makers to be well-grounded in international water law. This can feel like a daunting task. Since the 1960s, international water law has proliferated, with an array of bilateral agreements, global framework conventions, and customary law established through international jurisprudence and the interpretations applied by the relevant multi-State commissions, as well as soft law, such as declarations and non-binding international commitments such as the Sustainable Development Goals. McIntyre’s book seeks to fill the gap between the very large and detailed international water law texts and the examinations of specific agreements or instruments that have likewise proliferated. He writes for those who have some exposure to water law and policy, but who need a clear framework to facilitate their understanding of international water law.
McIntyre acknowledges the limitations of this approach: this is not a text in which you will find the latest critical theories of international water law. But he does provide a thorough grounding in the traditional basis of international water law. His book is engaging, easy to read, and demystifies what can sometimes feel like arcane and complex elements of international water law. He offers a thorough grounding in the history, and the key principles that have emerged and continue to dominate international water law today: the principle of equitable and reasonable utilisation; the duty to prevent significant transboundary harm; and the duty to cooperate in the management of shared waters. He demonstrates the interconnection between substance (such as equitable and reasonable utilisation) and procedural requirements, arguing that these are so ‘centrally important that… a State’s failure to participate actively in the procedural requirements [to cooperate] inherent to equitable and reasonable utilisation… would suggest that that State’s planned or actual use may not be equitable or reasonable’ (p7). McIntyre also highlights the growing impact of environmental protection and the human right to water in shaping the normative values that underpin international water law.
McIntyre’s book achieves its goal admirably. It is eminently readable and a solid foundation on which more detailed examination of international water law can be built. However, in doing this so well, it leaves me wondering about the way we teach these important over-arching topics. This is not a critique of McIntyre’s book, but rather of the assumptions that are embedded in what we consider to be the basis for international water law. There is little engagement with Indigenous Peoples in the book, although their systems for caring for water and articulating (and enforcing) obligations between upstream and downstream Nations extend back at least 40,000 years in Australia (Green and Moggridge, 2021; Daniell and Moggridge, 2024) – but as “non-State” actors, they are largely overlooked by international law. International water law also continues to construct water as a resource over which human nation States have dominion – yet the rapidly growing transnational rights of rivers movement means that some transboundary rivers now have the status of legal persons (Agnew QC and Jahan, 2021), which challenges this legal construction.
As caring for transboundary rivers and aquifers becomes increasingly important in a climate change world, we need to challenge these assumptions. I encourage people to read this book – but read it with an eye to what is left out, as well as what is included.
References
Agnew QC, C. and Jahan, I. 2021. A critical analysis of the development of the concept of giving rivers a personality: does it in fact help to protect rivers? Journal of Water Law 27(3): 77–88.
Bhattacharya, S. 2024. Unprecedented Floods Fuel Bangladesh-India Tension Snigdhendu Bhattacharya. The Diplomat. 2024, https://thediplomat.com/2024/08/unprecedented-floods-fuel-bangladesh-india-tension/.
Castro-Diaz, L.; García, M.A.; Villamayor-Tomas, S. and Lopez, M.C. 2023. Impacts of hydropower development on locals’ livelihoods in the Global South. World Development 169(106285): 1–16, https://doi.org/10.1016/j.worlddev.2023.106285.
Daniell, K. and Moggridge, B. 2024. Indigenous Water Engineering and Aquaculture Systems in Australia: The Budj Bim Cultural Landscape and Baiame’s Ngunnhu (the Brewarrina Aboriginal Fish Traps). Blue Papers 3(1): 18–29, https://doi.org/10.58981/bluepapers.2024.1.01.
Green, J. and Moggridge, B. 2021. Australia state of the environment 2021: inland water (independent report to the Australian Government Minister for the Environment). Canberra, ACT: Commonwealth of Australia, DOI: 10.26194/0P6K-MS94.
Grigg, N.S. 2023. Colorado River Basin: conflict management under hydrologic stress and institutional gridlock. International Journal of River Basin Management in press: 1–9, https://doi.org/10.1080/15715124.2023.2229802.
James, I. 2024. ‘Zero progress’: Western states at impasse in talks on Colorado River water shortages. Los Angeles Times (online). 2024, https://www.latimes.com/environment/story/2024-12-10/colorado-river-divisions.
Rivera-Torres, M.; Gerlak, A.K. and Jacobs, K.L. 2021. Lesson learning in the Colorado River Basin. Water International 46(4): 567–577, https://doi.org/10.1080/02508060.2021.1913782.
Vij, S.; Warner, J.F.; Biesbroek, R. and Groot, A. 2019. Non-decisions are also decisions: power interplay between Bangladesh and India over the Brahmaputra River. Water International 45(4): 254–274, https://doi.org/10.1080/02508060.2018.1554767.
Ziv, G.; Baran, E.; Nam, S.; Rodriguez-Iturbe, I. and Levin, S.A. 2012. Trading-off Fish Biodiversity, Food Security, and Hydropower in the Mekong River Basin. Proceedings of the National Academy of Sciences of the United States of America 109: 5609–5614.
