Le principe de participation du public à la gestion des ressources en eau transfrontières : étude de cas des organismes de bassins transfrontaliers

Public participation should be a guiding principle for shared management of transboundary waters. While these transboundary waters provide a supply of water and ensure the functioning of ecosystems, they can either be a reason for cooperation or a source of conflict between States. As a result, among the agreements regulating the international governance of freshwater resources, some create transboundary basin organisations, which are therefore based on an intergovernmental legally binding instrument between at least two sovereign States. This gives to the organisations a legal personality and defines specific objectives regarding the management of water resources in shared river and lake basins. In recent decades, public participation, understood as a mechanism by which individuals, groups and organisations decide to play an active role in decision-making processes, has become a major challenge for transboundary water governance. Indeed, public participation is motivated by factors related to legitimacy and democratic decision-making. It is also justified on environmental grounds. Nevertheless, international watercourse law does not provide sufficient space for the participation of individuals and communities, especially at the universal level. Yet, several regional treaties contain provisions on public participation and this principle has been considered as a progressive development in customary international law. Despite these advances, one may need to interpret this principle in the light of international environmental law and international human rights law, as both bodies of law recognize and protect this principle. Firstly, the principle of public participation in the management of transboundary water resources must be read under the prism of international environmental law as it guarantees a governance based on sustainable development and strengthens the place of individuals and communities within this system. Secondly, international human rights law provides individuals and communities a right to participation in decision-making processes relating to transboundary waters, particularly through regional human rights bodies case-law. In other words, international human rights law, by protecting the right to public participation, gives individuals as well as communities a legal title to participate in the management of transboundary water resources and thus enshrines the public interest in such governance. As the principle of public participation is intended to be neither theoretical nor illusory, one may study its implementation on the scale of several basins in order to assess its concrete and effective nature. In the field of international watercourse law, each instrument may contain specific provisions relating to access to information, public participation or justice. Four modes of public participation in transboundary basin management can be identified: access to information, consultation processes, deliberative procedures and integration of the public in decision-making processes. Here, access to information is the lowest level of participation, while inclusion in decision-making is the highest. In transboundary basin organisations such as the International Commission for the Protection of the Danube River in Europe, the International Boundary and Water Commission in North America and the Permanent Okavango River Basin Water Commission in Southern Africa which have implemented this principle, mechanisms for access to information are almost always put in place and there is a tendency to set up consultative processes. However, public participation in programme and project planning, or in decision-making processes, remains low or rare. Yet, it is only at this level that the public has some influence and can ensure that transboundary basin organisations take due account of the opinions and views expressed. The effectiveness of the principle of public participation is therefore relative. Thus, it seems necessary to encourage transboundary basin organisations to further strengthen public participation to make this principle fully effective. Notwithstanding, public participation could be further challenged by significant groundwater depletion worldwide and consequent potential conflicts, climate change, lack of political will and economic and human capital, etc. All in all, public participation in transboundary water resources management is a challenge in itself, given the risks associated with an increase in the number of stakeholders in decision-making processes. It could potentially make negotiations and the adoption of standards more complex in transboundary basin organisations that already sometimes endure a lack of efficiency and legitimacy.