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47 Denv. J. Int'l L. & Pol'y 29 (2018-2019)
Unmasking the Substance behind the Process: Why the Duty to Cooperate in International Water Law is Really a Substantive Principle

handle is hein.journals/denilp47 and id is 37 raw text is: UNMASKING THE SUBSTANCE BEHIND THE PROCESS: WHY THE DUTY TO COOPERATE IN INTERNATIONAL WATER LAW IS REALLY A SUBSTANTIVE PRINCIPLE TAMAR MESHEL* INTRODUCTION The core principles of international water law'-equitable and reasonable utili- zation,2 no significant harm,3 and the duty to cooperate-are generally considered to have customary law status.4 This body of law has played a meaningful role in in- terstate fresh water resource management and dispute prevention.5 However, rela- * Assistant Professor, University of Alberta Faculty of Law.1.'International water law' refers to the body of law governing non-navigational water uses, and should be distinguished from international law governing navigation, maritime issues, and the High Seas. See generally ICWC Course: Int'l Water L., Stockholm International Water Institute, http://www.siwi.org/icwc-course-international-water-law/ (last visited March 5, 2019). 2. The equitable and reasonable utilization principle is rooted in the sovereign equality of states. It entitles each basin state to a reasonable and equitable share of an international watercourse and obli- gates it to use the watercourse in a manner that is equitable and reasonable vis-d-vis other states sharing it. See Mohammed S. Helal, Sharing Blue Gold: The 1997 UN Convention on the Law of the Non- Navigational Uses ofInternational Watercourses Ten Years On, 18 COLO. J. INT'L ENVTL. L. & POL'Y 337, 342-43 (2007); Muhammad Mizanur Rahaman, Principles of International Water Law: Creating Effective Transboundary Water Resources Management, 1 INT'L J. SUSTAINABLE SOC'Y 207, 210 (2009); Stephen McCaffrey, The Law of International Watercourses: Present Problems, Future Trends, in A LAW FOR THE ENVIRONMENT: ESSAYS IN HONOUR OF WOLFGANG E. BURHENNE 113 (Alexandre Kiss & Francoise Burhenne-Guilmin eds., 1994). 3. The no significant harm principle has its roots in the Latin maxim sic utere tuo ut alienum non laeda and is generally viewed as a customary norm of international environmental law, prohibiting states from using their territory in such a way as to cause harm to another state. See generally Catherine Redgewell, Sources of International Environmental Law: Formality and Informality in the Dynamic Evolution of International Environmental Law Norms & Jutta Brunn6e, The Sources of International Environmental Law: Interactional Law, in THE OXFORD HANDBOOK ON THE SOURCES OF INT'L L. 939- 986 (Samantha Besson & Jean d'Aspremorw, eds., 2017). 4. See, e.g., Stephen C. McCaffrey, International Water Cooperation in the 21st Century: Recent Developments in the Law of International Watercourses, 23 RECEIL 4, 5 (2014); Stephen C. McCaf- frey, The UN Convention on the Law of the Non-Navigational Uses of International Watercourses: Pro- spects and Pitfalls, in INTERNATIONAL WATERCOURSES-ENHANCING COOPERATION AND MANAGING CONFLICT, 17, 26 (Salman M. A. Salman & Laurence Boisson de Chazournes eds., 1998); Gabriel Eckstein, Water Scarcity, Conflict, and Security in a Climate Change World: Challenges and Opportunities for International Law and Policy, 27 WIS. INT'L L. J. 409, 419, 434 (2009-2010). 5. See, e.g., SALMAN M. A. SALMAN & DANIEL D. BRADLOW, REGULATORY 29

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