This introduction reviews scholarship on international legal fragmentation, lays out a framework for understanding international judicial cross-fertilization, and previews the contributions and their findings. Existing scholarship on international legal fragmentation, we argue, has moved through three phases over the past several decades. In the first, legal scholars and practitioners reacted with alarm to the judicial proliferation of the post–Cold War years, which they feared would create overlapping jurisdiction and conflicting interpretations of law. Following this period, the new century saw the pendulum swing toward a second, more optimistic picture in which international courts addressed fragmentation through “management” techniques, producing unity in international law. We can detect the opening salvos of a third wave, as skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization. In this volume, we build on the existing literature by theorizing the actors of cross-fertilization and their motives, and by distinguishing between procedural and substantive cross-fertilization.

As shown throughout the course of this book, the consolidation of human rights to water and sanitation has been growing, in recent years, as a legal obligation, as a guiding framework for public policies and as a banner for social movements. Its interpretation is gradually being seated on more consensual and solid bases and its implications for the enjoyment of rights are increasingly demonstrated, albeit timidly in some contexts.

In most societies, many groups and individuals rely on places beyond the scope of the household to live and enjoy their rights, including their rights to water and sanitation. These groups include persons in penal institutions and detention centres, health care professionals and patients who spend long periods in hospitals and health centres, students in boarding schools and workers who are required to spend considerable lengths of time in open workplaces. They also include people who reside in those spheres because of homelessness, people living in poverty who may lack access to water and sanitation in or near their homes and people who work formally or informally in the public spaces of urban areas. More broadly, they include the general public who commute daily.

The debate around the international framework for HRtWS is permeated by challenges and endorsements from United Nations member states and civil society. Such a debate has implications both as to what precisely the content of the rights are and what the nature of countries’ obligations related to such rights is, as well as how these should be concretely realized in practical terms.

Inequalities based on gender exist basically in every country and in all aspects of social life, and are echoed in the vast divides between men and women in their ability to access, manage and benefit from water, sanitation and hygiene. A large and growing body of studies suggests that women and men often have differentiated access, use, experiences and knowledge of water, sanitation and hygiene. Cultural, social, economic and biological differences between women and men consistently lead to unequal opportunities for women in the enjoyment of the HRtWS, with devastating consequences for the enjoyment of other human rights and gender equality more generally.

This chapter focuses on one author of cross-fertilization, the Permanent Court of Arbitration (PCA). The PCA plays various roles in the development of international law. In recent decades the PCA has seen significant procedural cross-fertilization among international institutions, for example with the UNCITRAL Arbitration Rules informing the PCA’s own modern rules of procedure. PCA-administered tribunals have engaged in substantive cross-fertilization, citing ICJ decisions as well as awards issued by PCA- and ICSID-administered tribunals, among others. There are limits to the PCA’s role in cross-pollination and convergence, particularly the principle of party autonomy and and excess of mandate by the tribunal being grounds for an award to be set aside. Party-driven limits to convergence are exemplified in the high degree of variation in transparency among PCA-administered arbitrations, with proceedings ranging from the highly transparent to the fully confidential. Despite these limits, this chapter concludes that both as an actor and as a framework, the PCA serves as a mechanism whereby procedural law and substantive international law are distilled, developed, and diffused.

This book is intended for those who want to broaden their interpretation of the human rights to water and sanitation (HRtWS). It also is intended to reach those who, in addition to broadening this understanding, seek to transform, whether by activism or committed academic activities, the reality of persons who historically have been denied access to these essential services for life.