2. Introduction
2.4 Sovereignty in the Anthropocene
Undoubtedly, sovereignty is one of the main challenges for transboundary river basins because it is linked with states’ national interests. However, this situation has been shifting in recent decades, especially with growing awareness of global environmental changes. In the early period of the global concern for environmental issues, states took a strong approach to protect their sovereignty. For instance, Brazil was one of the countries that opposed the word 'shared' in relation to natural resources during the UN Conference on the Human Environment in 1972 in Stockholm. Brazil was contrary to
172 Territorial Jurisdiction of Int’l Comm’n of River Oder (United Kingdom V Poland), above n 11, at 27.
173 Locke, above n 96, at 134.
all arguments related to sharing resources in the 1970s and 1980s because the government was afraid that its sovereignty would be restricted by international conventions under the supervision of the UN.174
The close examination of principle 21 of the Stockholm Declaration illustrates that states were concerned about any restriction for their sovereignty. The first part of the principle reaffirms the sovereign rights of states to utilise their resources inside their national border under international law and the UN Charter. It explains that states have:175
…the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
Even though the second part of the principle urges states not to cause harm to their neighbours and the environment, sovereignty appears untouchable and is expressed strongly. Thus, most UN institutions avoided working with transboundary river basins and could not achieve progress in the 1980s and 1990s regarding this issue.176
However, international awareness of global environmental changes is rising in this century. Scientific proof is also motivating and shaking governments to prepare for the rapid changes in the climate. According to research that took a decade, fresh surface water and groundwater are also experiencing critical changes. Among the thirty-seven giant aquifers in different parts of the world, twenty-one of them have already exceeded the sustainability point. This means the amount of water extracted is more than the amount that gets into these aquifers in the study period between 2003 and 2013. More seriously, thirteen of them are in a threatening situation that leaves significant long term and negative impacts on these aquifers because they need thousands of years to fill up again.177
174 Asit K Biswas “Management of transboundary waters: an overview” in Management of transboundary rivers and lakes (Springer, 2008) at 8.
175 Declaration of the United Nations conference on the human environment 1972 principle 21.
176 Biswas, above n 174, at 8-10.
177 Todd C. Frankel “Nasa data shows the world is running out of water” (2015) The Independent
<https://www.independent.co.uk/environment/nasa-data-shows-the-world-is-running-out-of-water- 10325188.html>.
Thus, the absoluteness of sovereignty, which Bodin, Hobbes, and Austin claimed, is not acceptable in the modern global legal and political system. The EU is an obvious example of the non-absoluteness of the sovereign system because the EU members agree to transfer most of their sovereign rights to the EU institutions. The EU, not the members, governs several issues such as trade, social welfare and monetary policies.178 Limiting sovereignty and transferring some of what is known as sovereign rights to other actors at the national and supernational will impact international environmental and water management effectiveness. This will also be crucial for enhancing enforcement and compliance with environmental law.179 This can be achieved in two primary methods: transferring the power to international institutions and internal actors inside the state.
This does not mean that the post-sovereign world is coming and will exclude sovereign states as one of the main actors for transboundary environmental issues, because sovereign states will remain important for two reasons for the world and the international community. Firstly, sovereignty is vital to maintaining international order.
Secondly, leaders and political elites need sovereignty to use it as a political weapon during their disputes.180 Thus, it is hard to convince politicians to relinquish their power over people and territory. States and state leaders hardly resist maintaining control and remain the main actor in the intentional order. Still, the environmental and climate issues encourage and require all to reform the meaning and understanding of sovereignty, particularly in the Anthropocene.
Sovereignty should be reframed to meet rapid environmental changes and challenges.
It means other actors need to take their role in this regard. Sovereign states, and other actors (such as internal actors inside states and international organisations) should be the main decision-makers for designing and implementing environmental and water policies. Three main characteristics demonstrate that post-sovereign thought should be a part of environmental and water management. The first characteristic is non-
178 Philpott, above n 72.
179 Rüdiger Wolfrum, R WOLFRUM and Nele Matz Conflicts in international environmental law (Springer Science & Business Media, 2003) at 163.
180 Michael Ross Fowler and Julie Marie Bunck Law, power, and the sovereign state: the evolution and application of the concept of sovereignty (Penn State Press, 2010) at 32.
exclusivity in water management. This characteristic means that states are not the only actors in managing transboundary river basins. Other actors need to play their role as co-designer and co-implementer for environmental issues. Thus, the role of states is not dismissed, but part of their role is transferred to other actors.181
Secondly, the non-hierarchical decision-making is another fundamental characteristic for managing environmental issues in this century. Traditionally, states were the main actor in the decision-making process of river basin management. State leaders would decide at the top of the governmental level, and other organs of states at lower levels would implement these policies.182 However, the role of states is decreasing as the central and only actor to command water management. With the development of integrated river basin management in the last century, the hierarchical role of the state has altered. As river basin management is a social, political, economic, and technological process, the state, alongside other actors, should decide about it collaboratively.183
Thirdly, post-territorial responses is another significant characteristic for issues of transboundary river basin management. Most of the environmental issues in this century are crossing sovereign borders at all events, and they are not bound by sovereign territories. Thus, the solution for these issues should be broader than the borders of sovereign states.184 In the period between the Second World War and the 1980s, states attempted to solve most issues inside their territorial boundaries. The power of sovereign states was centrally designed and planned for dealing with many issues in society. However, this approach is considered an obstacle for addressing many issues and, more specifically, environmental issues.185