Towards a democratic management of water commons under international and EU law?

“Water, water everywhere, but not a single drop to drink”, sighs Coleridge’s Ancient Mariner, thus metaphorically sketching the situation of the world’s freshwater resources. Actually, the planet’s overall water mass amounts to approximately 1400 million kms³, but a huge percentage (97.2%) of such an abundant quantity is represented by salt water, concentrated in seas and oceans. The most relevant part of freshwater is frozen in polar caps and glaciers (about 2.15%). The next step of this descending scale is represented by underground basins that collect about 0.65% of the entire water reserves. Lastly, rivers and lakes gather no more than a 0.020%, an evidently slight quantity immediately available for the satisfaction of most water-related human, agricultural and industrial needs. The situation grows more and more alarming if we consider the distribution of freshwater resources from a geographical point of view. As a matter of fact, about just nine nations own more than the 60% of the viable freshwater supplies, while extensive areas are walking on a fine thread, between daily scarcity and periodical droughts. Such “natural oligopoly” in the territorial control of these resources is accompanied by the high costs of access to freshwater, which often imposes to turn to expensive technologies, especially for underground basins. As far as rivers and lakes are concerned, many of them are in a state of hydro-stress, often due to over-consumption, pollution and unsustainable utilization. For instance, during the last twenty years the lake Aral – once one of the largest in the world – has more than halved its surface. Also, the Rio Grande – in the past listed among the twenty longest rivers on the planet – almost exhausts its flow before reaching the Atlantic Ocean. The demographic growth influences this trend: as the Food and Agriculture Organisation (FAO) World Resources Institute has repeatedly pointed out, the global consumption of water resources has proportionally increased more during the last thirty-five years than in the previous three centuries, thanks to an annual average rise, which can be calculated between 4 and 8%. Every year, nearly 3240 kms³ of freshwater is collected and used, mainly for agricultural purposes (69%), and for industrial exploitation (23%), while domestic and alimentary needs cover the remaining 8%. The percentage related to agricultural uses, moreover, is increasingly rising, because of the parallel widening of the areas devoted to these activities. Moreover, this often occurs in countries where irrigation techniques and infrastructures are frequently obsolete and inefficient. Nonetheless, the perspective will completely reverse if we consider the daily consumption for domestic uses: in this field, the average registered in economically developed countries is more than triple in comparison to the percentage of less developed States. In such context of current and future scarcity, the strategic relevance of freshwaters becomes a fundamental topic. As the former Vice-President of the World Bank Ismail Serageldin foresaw in 1995, the control over freshwater basins, the blue gold, will cause turmoil throughout the planet. A common problem urges shared strategies and common solutions, especially in case various stakeholders with opposing interests are involved. From a legal point of view, the challenge has been taken up by international and regional organizations, which have been trying to set up a comprehensive framework of institutional arrangements, governance mechanisms and principles to cope with this problem. On the one hand, the efforts of the international community to tackle the freshwater crisis brought to the first concrete outcome during the seventies, soon embracing environmental, geopolitical, social and economic perspectives. The activity of international organizations led to the adoption of several texts, most of which are nevertheless limited to the formulation of general principles, thus being devoid of binding legal effect. However, a recent trend of common approach seems to have come to light. International Organisations are working to provide a proper arena where the heterogeneous (and always more numerous) stakeholders can meet each other, while International Human Rights Law and International Investment Law supply the legal content. On the other hand, from a regional perspective, since the beginning of the new millennium, the European Union (EU) has been trying to promote a “European way” towards the sustainable exploitation of freshwater. Likewise, the 2000 Water Framework Directive established a comprehensive model of governance of European basins, either transboundary or confined in the territory of a Member State, thereby clarifying the principles and duties that public authorities are bound by. However, the profound economic roots of the European integration process have greatly influenced – and still influence – the EU freshwaters policies and their implications for the national legal orders, even if non-commercial concerns are increasingly important in defining the regime of water services. In this entangled and multilevel context, the paper tries to highlight a panorama of the main international and supranational legal aspects of the management of freshwater. The analysis is functional to further consideration on the role that democracy is playing – or in some instances should play – in this field as a means for a metaphoric rainy season, i.e. the individual’s right to have access to adequate quality and quantity of water resources... (segue)