The following hydro-hegemony workshops further developed the Framework of Hydro-Hegemony, gradually placing less emphasis on riparian position and exploitation potential, and more emphasis on the three faces of power. Thus, in answer to the political question ‘who gets how much water, how and why?’, the hydro-hegemony framework typically holds that this is determined by the most powerful actor. By primarily focusing on interstate relationships, the Hydro-hegemony framework has been traditionally state-centric; a primary criticism of the theory (Lopes 2012; Warner and Zawahri 2012).
The last four workshops have broadened the theme from specifically developing the Framework of Hydro-Hegemony, to focusing on the discourse of “Water Security” in 2010, “Transboundary Water Justice” in 2013 and exploration of “Contesting Hegemony” in 2014. One theme persistently present but never fully explored is the role of international law in hydro-hegemonic arrangements. Debates from previous workshops consequently gave rise to this year’s theme: “International Law and Hydro-Hegemony”.
International Law and Hydro-Hegemony
Leading up to the workshop, I contributed to – along with co-authors Becca Farnum and Mia Tamarin – the concept paper that would set the tone for the weekend: “The Role of International Law in Hydro-Hegemonic Arrangements”.
International law is often considered in hydro-hegemony literature (see Woodhouse and Zeitoun 2008; Daoudy 2008; Zeitoun et al. 2011), however it is primarily discussed as a tool or strategy in countering hegemony, ignoring its active role in solidifying hegemonic arrangements. The place of international law in hydro-hegemony theory is thus yet to be fully conceptualised, leading us to the key aim of the paper: to begin to conceptualise the role of international law in both hegemonic and counter-hegemonic relations over water. Our discussions resulted in the following, preliminary figure, to help understand the (counter)hegemonic dimensions of international law:
A Conceptualisation of International Law and its Role in (Counter-)HydroHegemony
In this figure, we understand international law as soft power, which manifests in different dimensions of the international legal regime. We distinguish these dimensions as the content and structure of international law, which embodies bargaining power and ideational power respectively.
As a repository and creator of ideas, it is a tool and actor in ideational power; as an author of international ‘rules’, it is a tool and actor in bargaining power. As such, international law wields significant soft power – and thus influences hydro-hegemonic relations – even when it does not carry with it a strong global police force with hard power (Daoudy 2008).
The content (principles and provisions) within specific bodies of international law through treaties and custom are represented by the arrows, pushing down on either side of the ‘international playing field,’ and can thus be leveraged to level or unbalance the playing field accordingly. In the concept paper, we recall bargaining power as
the ability to control the “rules of the game” (Zeitoun and Warner 2006: 442), influencing the agenda, and determining what is and is not on the negotiating table. Appeals to international law are a component of this second dimension of power, and is often used to legitimise state practice (Dellapenna 2003). So, too, is the ability to create, write, and influence international law. This power is held by academics and lawyers in the drafting of articles; activists, corporations, and civil society leaders in their campaigns, and States themselves through their participation in the UN General Assembly and Security Council.
Thus, the figure indicates that the availability of certain provisions within the authority of international law can provide states with the legal arguments to achieve their interests, whilst other provisions may work against these interests. The figure, perhaps erroneously (see below), suggests that there is a binary between certain principles that can be leveraged for hegemonic versus counter-hegemonic purposes.
In contrast, we suggest that the structure of international law (represented by the thick border around the figure) manifests as ideational power, which the concept paper summarises as
the capacity to create, uphold, and destroy narratives, perceptions, and knowledge (rooted in Foucault’s (1980) understanding that power is inseparable from knowledge). International law reflects and reproduces global discourses on issues, which influence domestic debate and policy-making (Cortell and Davis 1996). It shapes and perpetuates norms of behaviour.
Notably, ideational power is immensely powerful in its ability to procure consent. In the Gramscian sense, this consent is “secured by the diffusion and popularization of the world view of the ruling class” (Bates 1975: 352). We identify the parameters and structure of international law as defined through its requirement for territorial sovereignty and assumptions of equality; that is, the de jure notion of sovereign equality versus the de facto politico-economic hierarchy of states. Accordingly, “buying in” to the rules of the game, through the acceptance of and engagement with international law, is to consent to the hegemony of the Westphalian imperialist system. We discuss an expression of this ideational power through the ‘sovereignty paradox,’ whereby the structure of international law forces non-hegemons to engage in sovereignty arguments in defence of hegemonic domination., which in turn upholds and reinforces the very structures that enable its existence as a governing concept:
This concept paper and the resulting figure is our first attempt to understand the role of international law in countering or reinforcing structures of hegemony. We held in the paper that the current hegemonic structures of international law is upheld though ideational power, while the tools within international law can be used to leverage more immediate aims through bargaining power. This led us to ultimate question for the Eighth Workshop on Hydro-hegemony: can the tools contained within international law be used in a way that can pierce, reshape, or dismantle its hegemonic structures, in order to move toward a more just and equitable system?
HH8: Reevaluating our Understanding
We used the ideas and the figure presented in the paper as a basis for discussion during the Eighth workshop on hydro-hegemony. Whilst previous workshops had the tendency to adopt a conference style arrangement, the Eighth workshop sought to shake up the structure with a participatory format in order to generate new ideas from new faces. The result forced a severely critical look at where understandings of hydro-hegemony theory currently are, strongly suggesting a reevaluation of our preconceptions, and ideas presented in the concept paper.
- Why are we still stuck on State-centric conceptions of hegemony?
Hydro-hegemony theory from the outset has been criticised for its state-centric outlook, relying upon ‘Realism’ within international relations theory. This perspective assumes that States are the most important actors in an anarchic international system, and in general strive to pursue self-interest. The influence and power of non-state actors across various domains and governance scales has since been recognised (see Warner and Zawahri 2012 outlining the soft power of non-state actors such as NGOs, epistemic communities, and policy entrepreneurs). Yet, it is an issue lacking consideration in this year’s workshop and concept paper, compounded by the theme of international law, which has its own issues with state-centricism.
As outlined in the concept paper (see Section 2.2.5.), international law is underpinned by the Westphalian concept of sovereignty in which nation-states are the supreme actor. On a conceptual level, it neatly fits in with the hydro-hegemony framework as an instrument of soft power that can be used by states in their interactions over water. However, when talking about the the reality of power and influence in transboundary water governance, the theoretical ‘legal personality’ of actors under the strict scope of international law is hardly relevant. As discussions in the workshop highlighted, the state-centric discourse surrounding international law merely exacerbates the hegemonic idea that international law is a framework of social organisation held exclusively for the participation of states (see D’Souza 2002). That is, to continue arguing that non-state actors can’t use international law both reinforces the parameters of international law (which should be recognised is not static but constantly evolving as a product of society), and also fails to recognise the power of non-state actors (from those who are marginalised to those with huge voices, such as multinationals).
The world is moving beyond nation-states as the supreme actor in global affairs, and theory is not necessarily catching up to try and understand this. This in turn dooms international law to its current state which is arguably becoming increasingly irrelevant in dealing with today’s issues. The role of non-state actors in the international legal system is recognised (see d’Aspremont 2011), and should accordingly be integrated into multi-scalar discussions of hydro-hegemony.