The Berlin Rules on Water Resources: The New Paradigm for International Water Law

Drawing upon the experience of century, nations have constructed a customary international law for transboundary fresh water resources built around the principle of equitable utilization. The earliest complete formulation of this body of law was the Helsinki Rules on the Uses of International Rivers of the International Law Association of 1966. Like all customary law, this body of international law retains flexibility by being vague while allowing only for relatively primitive enforcement mechanisms. In an effort to improve things, the United Nations drafted a convention to codify the customary law. Even before that the UN Convention enters into force, it has been taken as a cogent summary of the relevant customary international law. The UN Convention, however, fails to integrate the environmental or ecological concerns and relevant human rights that have emerged in international law into the older body of international water law. Beginning in 1996, the International Law Association undertook to reformulate the Helsinki Rules in order to incorporate international environmental law and international human rights law. The project, for which I served as Rapporteur, concluded in August 2004 with the Association's approval of the Berlin Rules on Water Resources. The Berlin Rules speak in terms of a new paradigm of international water law that focuses on ecological integrity, sustainability, public participation, and minimization of environmental harm—principles not reflected in the Helsinki Rules and only developed in rudimentary form and then only for transboundary waters in the UN Convention. This paper will serve to introduce the Berlin Rules.