International law governing transboundary aquifers is considerably underdeveloped, with only a handful of bilateral and multilateral agreements governing specific aquifer systems to date. However, the significance of transboundary aquifers in addressing water security concerns is gaining recognition, and dialogue discussing the future of the international legal framework is growing in importance. Contributing to this dialogue, we seek to compare different legal instruments applicable to the management of transboundary aquifers in different regions. We draw from the experience of the processes that led to an established transboundary agreement in one region, and compare it to another region that is yet to establish a formal legal instrument. Specifically, we compare the Guarani Aquifer System in Latin America with international legal instruments applicable to the management of transboundary aquifers in the Southern African Development Community (SADC). We identify several trends arising from the management of the Guarani Aquifer System that could have potentially valuable input for SADC countries currently embarking upon the initial stages of the management of a transboundary aquifer. Central to this article is the underlying question of whether these international legal instruments, which are placed in dramatically different contexts, can be compared in the first place. We conclude that such a comparison is useful only if undertaken as a process of knowledge acquisition, as such a broad comparative exercise is limited in its ability to produce direct policy recommendations. Gaining knowledge of regional governance practices in relation to differing aquifer characteristics is particularly important in this underdeveloped area, especially as discussions regarding the future for transboundary aquifer law are gaining momentum at the international level.
The modern international legal regime governing nation-states is intrinsically tied to power. Power analyses thus play a major role in understanding international law and its impacts on water access and distribution. Building on theories of hydro-hegemony (power relationships in transboundary water interactions), this chapter examines the relationship between hydro-hegemons, freshwater, and law. Examples from river basins and aquifers around the world help analyse the (counter-)hegemonic potential of both the content and structure of international law governing freshwater. Particular attention is given to the debate over whether international law might help 'level the playing field' in transboundary water interactions. Introduction: Power and International Law A chapter about power and hegemony may seem out of place in a law and policy handbook. The law is, after all, supposed to be free from politics, blind to its supplicants, an equal arbiter of justice. However, while certain mechanisms within legal frameworks strive to be apolitical, it cannot be ignored that the systems creating and upholding those frameworks are far from apolitical themselves. It is people who write and enforce law; it is states that produce and implement international law. International law is thus a product of society, influenced by power and politics. In his opening to The Politics of International Law, Christian Reus-Smit (2004, 3) demonstrates the social construction of international law, showing how states and other actors use politics to determine "not only 'who gets what when and how', but also who will be accepted as a legitimate actor and what will pass as rightful conduct". International relations occur "within a framework of rules and norms" (ibid), but those very rules and norms are the product of states' behaviours and wishes. In a system created by its own users, politics and power cannot be divorced from the product or its application. Analysis of those politics and the way power plays out on the global stage is thus an integral part of understanding international law. This chapter relies on three related assumptions about the relationship between power and law in order to examine the more specific connections between hydro-hegemons, freshwater, and international water law: 1. The political processes that create international law are shaped in large part by power relations between states; 2. Legal norms and institutions often serve to reinforce existing power dynamics;
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