The Reformative Role of the Law: Comparative Experience in Environmental Law for Water and Food Security

Prof. Catherine Mackenzie
Faculty of Law – University of Cambridge


This paper compares the major legal approaches and specifically the Islamic Sharia as instruments for reform in the area of environmental law, and in particular the management of water in the context of urbanization, agriculture and food security.
One of the greatest challenges facing contemporary human societies, including Arab and Gulf societies, is development of the rule of law in the context of the management of public affairs. For security, peace and stability to be sustainable, human society requires water and food security. For millennium, Arab and Islamic society was based largely on subsistence agriculture and seasonable migration but rapid development, particularly in the last 20 years, has created massive urbanization with corresponding pressure on water supply and food production. Governments may certainly legislate to regulate infrastructure and so manage water but excessive regulation may stifle innovation and limit opportunities for investment.
Global order is moving towards great instability and possibly towards greater conflict, with the return of geopolitics and heightened nationalism in almost all of the major states in the system, with the structural instabilities and inequalities of global capitalism, and with new and disruptive patterns of social and political mobilization. Legal institutions are often inadequately equipped to respond preemptively, and existing legal institutions are often already under immense stress with the frequent invocation of terms such as gridlock, stagnation, or fragmentation.
This is true even of the most hitherto successful institutions (such as the EU); it is true of some of the most fundamental sets of legal rules (such as those relating to the use of force); and it is true even of those areas where the alleged ‘imperatives’ of global cooperation have seemed most evident (as with water security).
Increased politicization is certainly visible at the domestic level in several GCC states, with new forms of domestic political pressures. It is also visible at the international level,  with direct geopolitical rivalries (South China Sea, Ukraine, NE Asia), increased contestation at the regional level, and the spill over of such geopolitical rivalries into other areas such international economic relations such as trade and foreign investment, particularly in infrastructure designed to deliver water and food security both in urban areas and to more vulnerable isolated populations in Arab and Islamic states.
This paper will address three questions:  First, what are the drivers of the present impetus for reform? Although nationalism and identity politics stress what is particular and distinctive, the fact that these changes are occurring is many different places across the world strongly suggest that systemic factors and forces are at play. So we need to think about how best, analytically, to make sense of these systemic drivers. And we need to place them in a broader and longer-term historical perspective. Does it make sense to think in terms of analogies with the 1930s or the 1970s?  Second, how has the idea of the global rule been understood in the GCC?   Before concluding that the only choice is between a particular view of the so-called global liberal order and renewed conflict and chaos, we need to ask about the different roles that international law has played, or might play, within a far more strongly global international society. And third, what can we learn from looking in more detail at four areas: water security? food security? infrastructure development, and complex economic governance? What can we learn about the capacity of different areas of law and governance to withstand turbulent times? What is the relationship between power-political (dis)order and the different roles of international law and international institutions?

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