Law and the Mekong River Basin: A Socio-Legal Research Agenda on the Role of Hard and Soft Law in Regulating Transboundary Water Resources
Johns, Fleur, Saul, Ben, Hirsch, Philip, Stephens, Tim, Boer, Ben, Melbourne Journal of International Law
This commentary sketches a research agenda for mapping the normative networks through which debates concerning transboundary water resources in the Mekong River Basin are being conducted, particularly those networks' transnational legal dimensions. It argues that traditional 'hard versus soft law' analyses of the Mekong River Basin have to date paid too little attention to the role that legal vocabularies, institutions and actors are in fact playing on this highly contested terrain. Such analyses have, moreover, been insufficiently attentive to the particular, plural understandings, expectations and makings of law traceable to parties living and operating in the Mekong River Basin. The commentary outlines a research agenda informed broadly by Michel Foucault's writing on governmentality and Pierre Bourdieu's reflexive sociology and presents some preliminary intuitions animating that agenda. It advocates, in brief, Mekong-specific inquiries into hybrid and variegated forms of legal knowledge and their uneven distribution, beyond any single hard-soft law continuum.
CONTENTS I Introduction II Transnational Law and Scholarship in the Mekong River Context III International Socio-Legal Scholarship on Hard and Soft Law IV An Agenda for Socio-Legal Research in the Mekong V Research Methodology VI Some Preliminary Hypotheses VII Conclusion
The management and governance of transboundary water resources has long been of interest to international law scholars, and has given rise to interstate disputes reaching back at least as far as the 1870s in the Helmand River Cases. (1) Throughout the 20th century, scholarly interest was stimulated by the adoption of numerous bilateral or multilateral agreements on the use of particular river basins, (2) and later by the United Nations General Assembly's direction in 1970 to the International Law Commission ('ILC') to study and develop the law of the non-navigational uses of international watercourses. (3)
The resulting framework Watercourses Convention, (4) and its 'soft' near relation, the ILC's Draft Articles on the Law of Transboundary Aquifers, (5) have provided a new focus for scholarly attention, as have general principles of international environmental law and human fights law that bear upon river management. Those developments have been overlaid by a proliferation of what are generically called 'soft law' standards, emanating from the numerous international and regional stakeholders involved in water management.
On one hand, the progressive development of global norms has encouraged a sense amongst many international lawyers that there is, or invariably should be, a teleological 'hardening' and universalising of the law on shared water resources, and an accompanying move away from the traditional ad hoc approach that dominated the governance of particular rivers. The development of soft law is typically regarded as a normative 'bridge' between an absence of international law--that is, a realm dominated by sovereign discretion, political choices, and unstructured negotiation--and the normative certainty supplied by conventional hard law such as treaties or the binding decisions of courts or arbitrators. (6) Soft law is seen as a way of transitioning towards hard law, impelling behavioural change over time, even if there is flux and variation in the interim.
On the other hand, a neat teleological account of the development of a coherent and singular 'international water law' immediately strikes difficulties when applied to the management of particular river systems. Different river basins are governed in a range of quite different ways, some utilising 'harder' norms and institutions, others falling back on 'softer' regulation, and many mixing elements of both. There is, indeed, great variation not only in the regulatory mix of legal and quasi-legal norms between rivers, but also in the social understandings and expectations of law by different stakeholders--local, national, regional, international--with interests within a particular river basin. …