The right to water as a human right or a bird's right? Does co-operative governance offer a way out of a conflict of interests and legal complexity?

The right to water has been recognized as a human right under various international human rights instruments, such as the International Convention on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. These legal instruments primarily focus on access to safe drinking-water. On the other hand, various international legal instruments to protect nature force government institutions to reserve enough water for protected areas, for instance wetlands of international importance designated under the Ramsar Convention. These international legal obligations may conflict. A wetland situated in the estuary of a river can be severely damaged or even destroyed when too much water is used for human purposes upstream (not only for drinking water, but also for irrigation purposes, generation of energy, industrial uses, etc). The situation gets even more complicated when the river is located in more than one country.

In theory, the principle of reasonable and equitable use and the concept of common river basin management, as laid down in the Convention on the law of the non-navigational uses of international watercourses, are considered to offer a way out of this potential conflict. They should allow for a fair and reasonable distribution of the available amount of water in the entire river basin for all relevant purposes, discussed in a transnational commission in a co-operative setting, and involving all relevant stakeholders.

However, these theoretical concepts are not easy to implement in practice for several reasons. Obviously, one reason is that in some areas there simply is too little water to reconcile the realization of the human right to water and the protection of wetlands. Another reason is the legal complexity of cases like these. A vast amount of legal rules applies to any given area: international law, regional law (EU law, or in southern Africa, SADC law), national law and local or provincial law in all countries involved, not only on water, but also on other issues such as environmental protection. A co-operative governance approach, where all relevant stakeholders together try to figure out how the available water is to be reasonably and equitably shared, often is successful at first, but may very well run into a wall of legal complexity once the carefully reached agreements are to be consolidated into legal decision-making at all levels of government, in all countries involved.

A case study into the Orange River (which runs through four countries in southern Africa) and a protected Ramsar wetland on that river's estuary located on the border between Namibia and South Africa will show these complexities as well as how the stakeholders involved try to overcome the legal obstacles.