Archive for the ‘Brill Research Perspectives – International Water Law’ Category

The Ilisu Dam and its Impact on the Mesopotamian Marshes of Iraq: Implications for the Future Directions of International Water Law

Wednesday, January 27th, 2021

The following essay by Raquella Thaman is a summary of her recently published monograph (under the same title), which appears in Brill Research Perspectives in International Water Law.  Ms. Thaman is an attorney and teacher in California. She can be reached at r_thaman @ u.pacific.edu.

The fate of the Mesopotamian Marshes of Iraq provides us with a case study on the functional deficits of the existing body of international water law in managing conflict over transboundary watercourses. This monograph argues that international collaboration over transboundary watercourses is imperative for maintaining peace and stability and should force us into thinking of new ways to address these newly emerging and growing challenges in the field.

Water is a transient and finite resource. Moving through the hydrologic cycle, each molecule may find its way from a transboundary watercourse on one continent to a municipal water supply on another, and then back again. It is often said that every drop we drink has already been consumed by one life form or another.

The Hydrologic or Water Cycle.
Source: U.S. National Oceanic and Atmospheric Administration.

One of the more perilous side effects of climate change is its threat to the water supply of hundreds of millions of people. In many regions the seasonal absence of rain has historically been compensated for by meltwater from glaciers and winter snowpack across international borders in distant mountain ranges. When these glaciers disappear, so will the water supply during the dry season.

As these pressures increase, the need for effective legal regimes to address the sharing of transboundary watercourses likewise increases. In some cases, the existing law governing the utilization of this ephemeral resource has proven inadequate to prevent conflict and ensure access to water and its benefits for people and ecosystems no matter where they lie along the length of the watercourse.

The history and ecology of the Tigris-Euphrates Basin, and the issues surrounding Turkey’s recent impoundment of water behind the Ilisu Dam on the Tigris, provide an example highlighting such challenges. While the need for collaborative approaches to sharing transboundary watercourses is evident, barriers to such collaboration are complex and sometimes deeply entrenched. Additionally, the responsibility of the international community for helping at risk communities maintain access to adequate water supplies cannot be overlooked.

The first few chapters of the monograph set forth the context of the problem. Chapter one briefly introduces the hydrologic cycle and current state of Earth’s ecological systems underlying the need for new developments in international water law. The second chapter is an overview of the Tigris-Euphrates river basin including its hydro-geography, climate and early history of water use. The third chapter describes the significance of the Mesopotamian Marshes themselves as a harbinger for the well-being of the people of Iraq. The fourth chapter examines the water projects that affect the Tigris-Euphrates Basin including controversy surrounding Turkey’s most recent filling of the Ilisu dam and the flooding of Hasankeyf.

Map of Iraq with the Tigris and Euphrates River Basins.
Source: Library of Congress

Chapter five of the monograph outlines the law governing the Tigris-Euphrates Basin. The stance of the Tigris-Euphrates Basin states and their seeming embrace of outdated and conflicting approaches to resource allocation are examined.  Existing agreements between the states, both colonial era and post-WWII, and the application of the UN Watercourses Convention are then examined. Finally, other approaches to managing conflict over ecological conditions are examined including a brief analysis of the Rhine Salt Case and the human right to water recognized by the UN General Assembly in 2010.

Chapter six discusses the topic of collaborative water management using the illustrative example of the Senegal River Basin. Three examples of conflict over transboundary watercourses, one historical and two current, are then provided in order to illuminate some of the barriers to collaboration. The first is a nineteenth century dispute between the United States and Mexico over the water of the Rio Grande, which resulted in the production of the Harmon Doctrine. The second provides an example of upstream hydro-hegemony in an overview of the problems arising from China’s development of the upper Mekong River and its impact on those living in the lower Mekong Basin. The third example outlines the problem of downstream hydro-hegemony in the dispute between Ethiopia and Egypt, its downstream neighbor on the Nile, over the building of Ethiopia’s Grand Ethiopian Renaissance Dam.

In conclusion, the need for concerted global intervention to maintain the livability of Earth and increase resilience in the face of the rapidly changing availability of resources will be explored and the clear need for a unified collaborative approach to such intervention reiterated.

The monograph is dedicated to Ms. Fadia Daibes Murad (1966-2009); in recognition of the courage, rigor, and dynamic intellect with which she advocated both for fairness in access to water resources and for gender equity in Palestine and the Middle East.

You can access the monograph here.

Posted in Asia, Brill Research Perspectives – International Water Law, International Water Law, Middle East, Transboundary Rivers | Comments Off on The Ilisu Dam and its Impact on the Mesopotamian Marshes of Iraq: Implications for the Future Directions of International Water Law

Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

Monday, September 28th, 2020

The following essay by Dr. Zeray Yihdego and Julie Gibson is a summary of their recently published monograph (under the same title), which appears in Vol. 5(3) 2020, pp. 3-90 of Brill Research Perspectives in International Water Law.  Dr. Yihdego is Professor and Chair of Public International Law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego@abdn.ac.uk. Ms. Gibson is a Doctoral Researcher with the Strathclyde Centre for Environmental Law and Governance, Strathclyde School of Law. She can be reached at julie.gibson@abdn.ac.uk.

Over the past few decades, in an attempt to balance the competing uses and trade-offs on international watercourses, a number of water resources management paradigms have been developed. From Integrated Water Resource Management (IWRM) and water security to nature-based solutions and the Water-Energy-Food (WEF) Nexus, each framework has applied a new lens through which to view the governance of transboundary resources. These frameworks have undoubtedly proved useful, each approaching water governance from a different perspective allowing both synergies and gaps across multiple sectors and uses.  However, in many cases, each of these frameworks function within their own body of research and fail to identify overlaps and duplication of efforts. And each one attempts to ‘reinvent the wheel’ rather than focussing on long-term solutions and taking a holistic perspective of the frameworks already in existence.

Existing largely separated from these policy sphere frameworks is International Watercourses Law (IWL). IWL provides a number of key principles including equitable and reasonable use and the duty to prevent significant harm, which have become the foundation of many water governance regimes. Yet, in many ways, IWL provides only a broad framework for States to follow and is not sufficient to systematically consider the trade-offs of water use across multiple sectors such as energy and food.

Both areas – of policy and of law – bring clear benefits. Policy frameworks often provide more ambitious targets, which may be more tangible than IWL, as can be seen within the Sustainable Development Goals (SDGs). They may also be more industry/business focused, as is the case with the WEF nexus and can look for more scientific solutions to transboundary water governance. In this sense, policy frameworks can, therefore, fill some of the gaps which exist within the body of IWL. But the use of certain policy frameworks may be fleeting. Development agendas expire and notions of water security or nature-based solutions fall in and out of fashion. Thus, by linking to IWL, the temporal scope of these agendas can also be lengthened, underpinned by a legal framework, thereby demonstrates only one of the benefits of integration.

This monograph tests this theory of integration by viewing IWL, the WEF Nexus and the Sustainable Development Goals in an integrated manner termed the Law, Nexus Goals (LNG) approach. It explores the extent to which the WEF Nexus and the SDGs can support a progressive, realistic and balanced interpretation of the core principles of IWL and the cardinal rule of equitable and reasonable use in particular. Specifically, it asks and demonstrates how the SDGs and WEF Nexus could be mutually supportive in tackling the tension between competing uses and trade-offs between sectors.

This LNG approach is applied to the case study of the Zambezi River Basin, an extremely complex and fast-developing watercourse with a strong history of cooperation. Our findings demonstrate that even where sound IWL frameworks and cooperative processes exist, this does not guarantee a focused, measurable and sustainable outcome that is capable of addressing tensions among riparian and competing water uses in all cases. A more integrated and holistic framework could go some way to developing a more comprehensive and progressive water governance approach within transboundary river basins.

Zambezi River (courtesy of Sean Peter)

The monograph presents a perspective of integrated governance, bridging both law and policy. It illustrates the complexities of managing shared water resources that are subject to multiple uses – as illustrated through the Zambezi – and demonstrates how making the most of existing frameworks, rather than forming new ones, could be a positive driver for strengthened IWL implementation.

The monograph is derived from research conducted under the €5.5M four-year EU Horizon 2020 funded DAFNE project, which concerns the promotion of integrated and adaptive water resources management. The project explicitly addresses the WEF Nexus and aims to promote a sustainable economy in regions where new infrastructure and expanding agriculture has to be balanced with social, economic and environmental needs. The project takes a multi- and interdisciplinary approach to the formation of a decision analytical framework for participatory and integrated planning to allow the evaluation of decisions based on social, economic and environmental needs, thereby reflecting sustainable development. The monograph, therefore, derives its perspectives from the interdisciplinarity within the project.

You can access the monograph here.

Posted in Africa, Brill Research Perspectives – International Water Law, International Water Law | Comments Off on Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

The Geneva List of Principles of the Protection of Water Infrastructure: An Assessment and the Way Forward

Monday, August 17th, 2020

The following essay by Dr. Mara Tignino and Ms. Öykü Irmakkesen is a summary of their recently published monograph (under the same title), which appears in Vol. 5(2) 2020, pp. 3-104 of Brill Research Perspectives in International Water Law.  Dr. Tignino is Lead Legal Specialist at the Platform for International Water Law at the Geneva Water Hub and Reader at the Faculty of Law and the Institute for Environmental Sciences at the University of Geneva. She can be reached at mara.tignino@unige.ch. Ms. Irmakkesen is Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights and former Researcher at the Geneva Water Hub. She can be reached at oeykue.irmakkesen@unige.ch.

Water tower in Vukovar, Croatia, damaged during the Battle of Vukovar in 1991

Water infrastructures have been objects of attacks and weaponized in several armed conflicts throughout history. While such acts are invariably condemned by the international community, a thorough study of the legal framework on the protection of water infrastructure had until now been missing. However, as demonstrated in the monograph, protection of water infrastructure is essential to the protection of the environment and civilians during armed conflicts. Damaging or destroying these infrastructures can lead to the contamination of water resources and a disruption in the vital services they provide including water for personal and domestic uses, water for irrigation, and water for energy supplies.

The monograph starts with an introduction, which outlines the scale of the problems caused by attacks against and the weaponization of water infrastructure. This is followed by sections on the background and methodology of the Geneva List of Principles on the Protection of Water Infrastructure. Lastly, preliminary remarks on the List’s scope and content are provided.

This monograph is based on a project carried out by the Geneva Water Hub and its Platform for International Water Law. The project was triggered by the final report of the Global High-Level Panel on Water and Peace, A Matter of Survival. The report’s second chapter, entitled ‘Into the Abyss: Water in Armed Conflicts’, contained several recommendations, mainly addressed to the UN Security Council, including strengthening the respect for and implementation of international humanitarian law for better protection of water resources.

The main section of the monograph is the Geneva List of Principles on the Protection of Water Infrastructure and its commentary. The Geneva List includes principles applicable in peacetime, during armed conflicts and in post-conflict situations. These principles bring together rules regulating the protection of water infrastructure under international humanitarian law, international human rights law, international environmental law and international water law. Moreover, some principles also reflect recommendations that go beyond the existing law, which are largely built upon the practice of parties to past and current conflicts and well-recognized soft law documents, such as the Berlin and Madrid Rules of the International Law Association.

Certain types of water infrastructure are specially protected under international humanitarian law. For example, drinking water installations and irrigation works are protected under a special regime as objects indispensable to the survival of the civilian population (Article 54 of the First Additional Protocol and Article 14 of the Second Additional Protocol to the four Geneva Conventions of 12 August 1949 relating to the protection of victims of international and non-international armed conflicts, respectively). Likewise, dams are also accorded special protection as they are considered to contain dangerous forces (Article 56 of the First Additional Protocol and Article 15 of the Second Additional Protocol to the Geneva Conventions). Additionally, all water infrastructures are protected by the general rules on the conduct of hostilities as long as they remain civilian objects. For example, the principle of proportionality prohibits launching an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b) of the First Additional Protocol to the Geneva Conventions). This principle is particularly important in urban warfare contexts where the interconnectedness of infrastructure results in knock-on effects of the damaging or destruction of only one component. Such reverberating effects, which may not take place in the immediate aftermath or vicinity of the attacks but are foreseeable, must be taken into account by the parties to conflicts in their proportionality assessments.

Finally, the monograph concludes with a short section that delineates the perspectives of the authors on the possible challenges ahead, for example, due to climate change and proliferation of cyber warfare. This part also sets forth next steps to be taken based on the Geneva List of Principles by the Geneva Water Hub and explores the idea of creating a mechanism to monitor damages to water infrastructure during armed conflicts.

The writing of the Geneva List of Principles coincided with several related projects by different actors. Notably, the International Law Commission has provisionally adopted the draft principles on the protection of the environment in relation to armed conflict on first reading in 2019. The International Committee of the Red Cross has been updating its 1994 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict and is expected the publish the new guidelines by the end of 2020. During the drafting and publication process of the Geneva List of Principles, the Geneva Water Hub also cooperated with UNICEF, which launched its Water Under Fire campaign in March 2019. These initiatives highlight the increasing interest in revisiting rules and issues relating to the protection of water and the environment, also with the aim of enhancing the protection of civilians from the effects of armed conflicts.

You can access the monograph here.

Posted in Brill Research Perspectives – International Water Law, Human Rights, Water Crisis | Comments Off on The Geneva List of Principles of the Protection of Water Infrastructure: An Assessment and the Way Forward

African Basin Management Organizations: Contribution to Pollution Prevention of Transboundary Water Resources

Monday, July 20th, 2020

The following essay by Dr. Komlan Sangbana is a summary of his recently published monograph (under the same title), which appears in Vol. 5 (1) 2020, pp. 1-76, of Brill Research Perspectives in International Water Law.  Dr. Sangbana is a Legal Officer at the Secretariat of the Convention on Protection and Use of Transboundary Watercourses and International Lakes (UNECE) and a Research Fellow at the Platform for International Water Law housed by the Faculty of Law at the University of Geneva. He can be reached at komlan.sangbana@un.org

Shortly after their emergence as independent states, African countries established basin organizations and commissions. Some basin organizations, such as the Inter-State Committee established by states sharing the Senegal River basin, namely Guinea, Mali, Mauritania, and Senegal, were already established in the 1960’s. The Lake Chad Basin Commission and the River Niger Commission were both established in 1964. While economic integration justified this initial impetus of African countries towards the establishment of basin organizations, several challenges, such as transboundary freshwater pollution and low water quality due to the multiplication of development projects, have become a growing concern in the recent decade. The chief concerns of African countries in this respect were to avoid the dramatic consequences of water pollution for the quality of life of populations, the aquatic ecosystems, and biological diversity. Poor or unilateral management of transboundary water basins may cause these negative consequences for local communities living near international watercourses.

This monograph examines the important role that basin organizations play in the protection of water resources in Africa and offers suggestions to enhance their efficiency by looking at their normative and institutional frameworks. It is divided in four sections.

The first part is an introduction that provides an overview of the existing basin organizations in Africa, their different goals and multiple objectives. It offers an analytical framework for understanding the proliferation of basin organizations in Africa, as well as their legal typology.

The second part of the monograph discusses the contribution of basin organizations in the elaboration of pollution control standards. Focusing on the standard-setting role of these bodies, it unveils how basin organizations foster cooperation among member states and assists them in preventing transboundary pollution. In that respect, it reviews the processes and norm-based arrangements that inform the adoption of pollution control standards. Furthermore, it explores the various normative tools used by African basin organizations to regulate the conduct of their member states and their nationals, while taking into account the increasing involvement of non-state actors in the exploitation and management of transboundary water resources.

The third part of the monograph examines the contribution of African basin organizations to the implementation of pollution control standards. In this regard, it critically analyses the procedural and institutional tools that African basin organizations use to ensure the respect for the rule of law. Noting that the support that African basin organizations provide to their member states is as diverse as the organizations themselves, this study chooses to focus on the most analytical relevant aspects of their mandates. Thus, it addresses the scope and features of their control and monitoring activities and their mandates as far as the settlement of dispute is concerned.

The fourth part, which is a general conclusion, provides concrete suggestions derived from African practices of transboundary water management for the prevention of the pollution of transboundary water resources, as well as for enhancing cooperation and strengthening the role of basin management organizations.

From this study, it is clear that over time, the protection of water resources and their ecosystems has become a key focus of basin organizations in Africa. The development, adoption and implementation of pollution control standards by basin organizations have widened the remit and greatly strengthened the role of these institutions. As such, basin organizations have become central actors in the domain of African regional law for the protection of freshwater resources and the environment more generally.

The monograph is dedicated to the memory of Professor Kader Asmal (1934–2011) for his steadfast intellectual efforts to promote environmental protection in water governance.

The full article can be accessed here.

Posted in Africa, Brill Research Perspectives – International Water Law, Transboundary Water Pollution | Comments Off on African Basin Management Organizations: Contribution to Pollution Prevention of Transboundary Water Resources

Data Innovations for Transboundary Freshwater Resources Management: Are Obligations Related to Information Exchange Still Needed?

Monday, March 9th, 2020

The following essay by Dr. Christina Leb is a summary of her recently published monograph (under the same title), which appears in Vol. 4.4, 2019, pp. 3-78, of Brill Research Perspectives in International Water Law. Dr. Leb is a Senior Counsel at the Environment and International Law Unit of the World Bank and a Research Fellow at the Platform for International Water Law housed by the Faculty of Law at the University of Geneva. She can be reached at cleb[at]worldbank.org

Cross-border data and information exchange is one of the most challenging issues for transboundary water management. Water data is deemed sensitive and subject to restrictions with respect to dissemination and use in many countries. Another key challenge is the steady decline of ground monitoring systems due to ageing equipment, and the limited availability of resources for maintaining and modernizing these systems according to the latest standard of technology. At the same time, data and information availability is key to sustainable water management.

The 1997 United Nations Watercourses Convention (Art. 9) and the 2008 Draft Articles on the Law of Transboundary Aquifers (Art. 8) identify regular exchange of data and information as one of the general principles of international water law. The availability of information with respect to hydrological, meteorological, hydrogeological and ecological nature of transboundary water systems, among other, is required to implement the principle of equitable and reasonable utilization. States need to know about the natural characteristics of as well as the demands and stresses on the cross-border water system they share with their neighbours.

The main difficulty for riparian states is to obtain all the information and data required to prepare a detailed assessment according to the equitable and reasonable use principle. The information needs are wide ranging and often, not all information is available at the national level.

New opportunities for access to water related data have opened up with the availability of technological innovations related to real-time data, space technology, and Earth observation. These technologies have led to a drastic increase in quality and availability of hydrological, meteorological and geo-spatial data. In basins where seasonal flows are largely dependent on snow pack, satellite imagery of snow cover can help identify how much and where water is stored in the upper catchments. Information on lake and river surface elevation can facilitate downstream flow predictions. Field-based data sources can be combined with satellite data to further enhance forecasting and planning systems. With the help of telemetry, data can be collected even at remote, inaccessible places and automatically transmitted to central control points, where this data can be converted for various applications, such as flood forecasting systems, warning systems on toxic water pollution, and others. Hydro-meteorological models based on real-time and historic datasets can be used to shorten lead-time and enhance the accuracy of early warning systems.

The key legal drivers making Earth observation data more available come from outside international water law. Space law and the framework established by the United Nations Framework Convention on Climate Change (UNFCCC) have paved the way for comprehensive Earth observation initiatives, and continue to accelerate public accessibility of data and information for the benefit of all. The outer space treaties have opened the skies to freedom of exploration and freedom of data generation. And in line with their UNFCCC commitment to systematic observation, states leading in space technology have made most of their climate relevant datasets available to other nations and, to a significant extent, the public.

Publicly available Earth observation information can be used to assess equitable and reasonable use. These datasets reduce the amount of information that need to be shared directly between riparian states. With the help of Earth observation technologies, water managers can base their decision-making on information that belongs to parts of the basin that lie outside of their own national boundaries. The information can also be used to enhance the lead-time for emergency notification. Additionally, the ever-increasing availability and accessibility of data generated through Earth observation technologies may change due diligence standards for riparian states (with respect to information gathering and sharing) in implementing the equitable and reasonable use principle, as well as other international water law obligations.

The monograph, published in the Brill Research Perspectives in International Water Law series, presents an exploratory assessment of the potential impacts of new data technologies on data and information exchange obligations. By highlighting the practical challenges of the use of data generated through Earth observation technologies for water management purposes, the monograph discusses how these technological innovations may, nevertheless, modify the existing contours of the rights and obligations related to data and information exchange in international water law.

Posted in Brill Research Perspectives – International Water Law, International Water Law | Comments Off on Data Innovations for Transboundary Freshwater Resources Management: Are Obligations Related to Information Exchange Still Needed?

Use of Experts in International Freshwater Disputes: A Critical Assessment

Monday, November 11th, 2019

The following essay by Dr. Makane Moïse Mbengue and Rukmini Das is a summary of their recently published monograph (under the same title), which appears in Vol. 4.3, 2019, pp. 1-94, of Brill Research Perspectives in International Water Law. Dr. Mbengue is a Professor of International Law at the Faculty of Law of the University of Geneva. He can be reached at makane.mbengue [at] unige.ch. Ms. Das is a PhD candidate at the Faculty of Law of the University of Geneva. She can be reached at rukmini.das.

Given the vital importance of water to life on earth, and that only a small fraction of that water is fresh water, disputes over this scarce and valuable resource are inevitable. The nature of disputes ranges from access to water and related issues such as dams and river diversion, to water pollution and environmental harm. Rivers, often forming international boundaries between states, become a subject matter in boundary disputes.

States thus have varied reasons for initiating proceedings before international courts or tribunals, for breach of treaties or international legal norms, all arising out of, or related to, or affecting fresh water. These legal issues often involve complex questions of fact, such as the contours of a river, or the extent of its pollution, which a legal adjudicator alone may not be well-equipped to handle and resolve. Considering the importance of water for survival, effective resolution of such disputes is of paramount importance. With water becoming increasingly a scarce resource, and with the steady growth in population, disputes will continue to erupt and multiply, and the claims will get more complex and novel.

The technical nature of international water disputes has resulted in the rise in the involvement of experts in the resolution of these disputes. Such disputes may arise out of disagreements over installations situated on or near a water body, or their design, impacts on water and its quality, or the natural characteristics of the water body. These may be considered the distinguishing features of an international water dispute. As a tool to assist the adjudicator in decision-making, the need for experts has arguably increased manifold in the recent past, as has its use.

It has been seen mostly in the context of water disputes that the issue of expert use has led to controversies and procedural innovations that have clarified or modified expert use in future disputes, both water-related and otherwise. An examination of water-related disputes before international courts and tribunals, which is the subject of our monograph, demonstrates how experts have been involved in various roles in dispute resolution. We also give attention to those disputes where experts have ostensibly not been involved, but which could have benefited from expert involvement.

In our monograph, we examine these kinds of disputes with the goal of determining the place and importance of experts in water disputes, their increased need (if any) and how best to use them. A useful starting point to this objective of the monograph is an understanding of the recognition of experts and rules governing them in dispute settlement provisions of treaties and rules related to freshwater. Though later we describe the legal provisions on experts in the respective statutes or rules before embarking on an analysis of the cases, we begin with a preliminary section on dispute settlement provisions in select water-related legal instruments (treaties and rules) and whether and how they address the use of experts. An understanding of this textual aspect of the use of experts complements the case law analysis that follows. With this background, it is interesting to see in the subsequent sections how a few major international judicial fora compare to these treaty provisions, and how the use of experts has played out in practice.

For the rest of our monograph, we offer a critical assessment of the involvement of experts in resolving international water disputes. The case analysis, focusing on the role of experts, how they were used, or highlighting their absence, is divided by forum into three categories: first, water disputes before the International Court of Justice (ICJ or ‘the Court’); water disputes resolved through inter-state arbitration under diverse ad hoc and institutional rules; and finally, investor–state disputes involving water resources. Through this examination, we identify the lacunae as well as good practices in expert use in disputes of this nature. This case analysis is followed by a concluding comparative examination of the necessity and importance of experts in resolving water disputes, and how best to use them in such cases. We thus conclude by proposing the best practices with respect to expert involvement and use, for a more efficient and fair resolution of international water disputes.

The full article can be accessed here.

Posted in Brill Research Perspectives – International Water Law | Comments Off on Use of Experts in International Freshwater Disputes: A Critical Assessment

Notification concerning Planned Measures on Shared Watercourses: Synergies between the Watercourses Convention and the World Bank Policies and Practice

Monday, June 17th, 2019

The following essay by Dr. Salman M. A. Salman is a summary of his recently published monograph (under the same title), which appears as Vol. 4(2) 2019 of Brill Research Perspectives in International Water Law.  Dr. Salman is an academic researcher and consultant on water law and policy, Editor-in-Chief of Brill Research Perspectives in International Water Law, a Fellow with the International Water Resources Association (IWRA), and the co-recipient of the IWRA Crystal Drop Award in 2017. Until 2009, he served as the World Bank Adviser on Water Law. He can be reached at: salmanmasalman [at] gmail.com.

Notification of co-riparian states of planned measures on shared watercourses that may result in significant adverse effects has been widely accepted as one of the established principles of international water law. This wide acceptance of notification is now codified and elaborated by the 1997 UN Watercourses Convention, which includes one separate part, with nine articles, on notification.

The duty to notify other states of activities that may affect them stems from the international obligations of good faith, good neighbourliness, and reciprocity. It is an extension of the general obligation under international law to cooperate and to exchange data and information on shared watercourses. Such cooperation is no doubt the sine qua non for the equitable, sustainable, and efficient utilization and protection of shared watercourses.

It is worth noting that the notification requirement and its components have recently become the focus of attention and developments in a number of global fora, and have energized the debate on the details of operationalizing the notification obligation. The attention covered a number of issues including the content of the notification letter, and the different types of responses thereto.

One major development in the field of notification is the decision of the International Court of Justice (ICJ) in 2010 in the Pulp Mills case. That decision has gone beyond endorsing the notification requirement under the Statute of the River Uruguay, concluded by Argentina and Uruguay in 1975. The ICJ considered notification as a sine qua non of cooperation, in addition to being a vital method for protecting the shared watercourse.

In that same year, 2010, negotiations over the Nile River Basin Cooperative Framework Agreement (CFA) among the Nile Basin countries collapsed after more than ten years of facilitation by the World Bank and some other donors. The impasse resulted from the insistence by Egypt and Sudan on the inclusion of a specific reference in the CFA to what they considered as their ‘acquired rights’ over the Nile waters (which they termed ‘water security’), as well as provisions on notification, similar to those of the UN Watercourses Convention. The CFA includes provisions on exchange of data and information, but none on notification. Because they are inter-related, these demands have been vehemently rejected by the other Nile riparians.

Another development that has highlighted the concept of notification relates to the gradual and wide acknowledgement that harm, under international water law, is actually a two-way matter with regard to the issue of quantitative allocation of the waters of shared rivers. Just as upstream riparians can harm downstream ones through storage, diversion, and use of the waters of shared rivers, downstream riparians can also harm upstream riparians by foreclosing their future uses of the shared waters through the prior use of, and the claiming of rights to such waters, and by invoking the no harm obligation. Based on this concept of foreclosure of future uses, notification has to be from all, and to all, of the riparians of the shared watercourse.

The fourth development in the realm of notification relates to the discussion and attempts of the World Bank, since 2005, to amend the provisions on notification in the Bank Policy for “Projects on International Waterways.” Indeed, the World Bank has one of the pioneering and elaborate policies, and the only practical experience, among international organizations in this field. The Policy does not establish a threshold for notification. Rather, it requires notification, as a general rule, for all projects on international waterways, and sets forth three exceptions to the notification requirement. The purpose of the proposed amendment is to align the Bank Policy with the provisions of the UN Watercourses Convention with regard to the threshold for notification.

The monograph begins with an overview of the historical and legal origins of the notification requirement. It then examines in detail the provisions of the UN Watercourses Convention as well as those of the World Bank policies dealing with notification, including the content of notification and the different types of responses that the notifying state may receive from the notified states. The monograph discusses in detail possible objections to the planed measures from riparian states, and how such objections are addressed under the provisions of the Convention and the Bank Policy and practice.

The monograph concludes by highlighting a number of comparators and synergies between the UN Watercourses Convention and the Bank Policy and practice, including the role of environmental impact assessments, shared groundwater resources, the different responses to notification, and how to handle objections from a notified state. The conclusion also stresses the potential wider positive outcomes of notification when undertaken properly and in good faith.

The full article can be accessed here.

Posted in Brill Research Perspectives – International Water Law, International Water Law | Comments Off on Notification concerning Planned Measures on Shared Watercourses: Synergies between the Watercourses Convention and the World Bank Policies and Practice

Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

Tuesday, April 16th, 2019

The following essay by Dr. Maria A. Gwynn is a summary of her recently published monograph (under the same title), which appears in Vol. 4(1) 2019, of Brill Research Perspectives in International Water Law.  Dr. Maria A. Gwynn is a Senior Research Fellow at the Institute of Public International Law of the University of Bonn, and conducted most of the research contained in this monograph while she was an Oxford-Princeton Global Leaders Fellow at Princeton University and at the University of Oxford. She can be reached at maria.gwynn [at] uni-bonn.de.

 

The UN Convention on the non-navigational uses of international watercourses recommends that states adapt their existing bilateral and regional agreements to the provisions of the Convention to promote equitable and reasonable uses of watercourses. This monograph assesses the practical consequences of this provision, and the prospects for achieving sustainable development with such action, and uses the Itaipu Treaty as a case study.

The Parana River

The Itaipu Treaty, which was signed and ratified by Brazil and Paraguay in 1973 and continues to be in force today, was established so that these two countries would jointly pursue the advantages that could be obtained from the exploitation of the Parana River to

The former Guaira Falls

produce hydropower through the construction of a dam. The Parana River is an international watercourse on the South American continent sourced by the La Plata basin. The dam was constructed at the river’s most powerful point, the Guaira Falls, formerly the greatest set of waterfalls on the South American continent, which disappeared after the construction of the dam.

The river’s great resources were not underestimated. Today, the sheer amount of energy that the Itaipu Dam produces has placed both countries among the largest producers of clean and renewable energy in the world. However, while Brazil consumes its entire share of the energy produced, Paraguay (whose available share of energy from the hydropower facilities far exceeds its own domestic energy demands) only consumes a small part of this clean and renewable energy source. Paraguay, instead, continues to use biomass sources (burning of coal and wood) to satisfy most of its energy needs. Under the Itaipu Treaty, Paraguay sells its unused allotment of energy to Brazil.In general, the Itaipu Treaty regulates the use and consumption of hydropower produced by the dam, making the provisions of the treaty very pertinent to understanding the two countries’ energy policies.

The Itaipu Dam and Reservoir

The Itaipu Treaty entered into force before the United Nations International Law Commission had finished its task of evaluating the international law and customs on the non-navigational uses of international watercourses, embodied in the UN Watercourses Convention, and before some of the major developments concerning international environmental law came about. However, the Itaipu

Treaty contains a renegotiation provision, according to which the two states must renegotiate some of its provisions 50 years following the conclusion of the treaty, i.e. in the upcoming year 2023. The monograph argues that this is a great opportunity for both countries to adapt their watercourse agreements to the current standard and principles of international law.

The monograph provides a detailed assessment of the advantages of adapting watercourse agreements to the standard and principles of all pertinent areas of international law, such as international water law, international environmental law, and climate change law. The first part of the monograph begins with an analysis of the initial approaches to the law of international watercourses in the first half of the twentieth century. It discusses some of the main principles of the law governing international watercourses and the work of pertinent institutions concerned with this area. In this sense, the first part of the monograph describes the status of the law on international watercourses at the time when the Itaipu project was first pursued.

Signing the Acta de Yguazu Agreement in 1966

The second part of the monograph discusses the Itaipu project in its legal and historical context. An analysis of the principles of consultation and notification for projects on international watercourses are particularly instructive. The monograph describes the relevance of the role of Paraguay, which despite being a main treaty party, has often been neglected in the scholarship.  The monograph shows how escalation of disputes to an international conflict regarding sovereignty was eased by benefit sharing agreements and inter-state cooperation of the countries of the La Plata basin. The monograph also offers a comparative analysis to similar cooperation and benefit sharing agreements signed at about the same time in other parts of the world.

The Itaipu Agreement

The third part of the monograph describes the advances in the law of international watercourses and of environmental law since the 1970s, and places the implementation of the Itaipu Treaty, which in turn is analyzed in the fourth part of the monograph, within this context. The fifth part of the monograph describes recent disputes concerning the non-navigational uses of international watercourses decided by the International Court of Justice in an analysis that connects the decisions of such judgments with the monograph’s object of study.

The monograph concludes by highlighting how the treaty provisions and their implementation could be affected by the developments in international law and the UN Watercourses Convention in particular. It argues that adapting watercourses agreements like the Itaipu Treaty to the provisions of the Convention is a way to foster

The UN Sustainable Development Goals

sustainable development. Doing so would be advantageous not only to the treaty parties, but also to the other countries in the water basin and to the international community as a whole.

The monograph is dedicated to the memory of Prof. Dr. Efrain Cardozo (1906-1973) and to Prof. Dr. Ruben Ramirez Pane (1920-2004).

The entire article is available here.

 

Posted in Brill Research Perspectives – International Water Law, International Water Law, Latin America, South America, Sustainable Development, Transboundary Rivers, UN Watercourses Convention | Comments Off on Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

The International Law Association Helsinki Rules: Contribution to International Water Law

Thursday, February 7th, 2019

The following essay by Professor Slavko Bogdanović is a summary of his recently published monograph (under the same title), which appears in Vol. 3(4) 2018 of Brill Research Perspectives in International Water Law.  Professor Bogdanović was on the Law Faculty of the University Business Academy in Novi Sada in Serbia and now is a consultant on water law and policy. He can be reached at nsslavko@gmail.com.

 

The International Law Association (ILA) started in 1954 its study of the principles and rules of international law applicable to the rivers making or being intersected by state boundaries. It was a moment after WWII when the enhanced harnessing of hydropower potential of international rivers was seen as a necessity. The rising development needs of nations in parallel with growth of populations resulted in enlarging demand for electric energy production. Engineering aspects of harnessing rivers were not the problem; the challenge was the applicable law. The lack of accepted and pertinent international law rules was a major obstacle not only for the economic development of nations, but also to the economy of the world in general.

Early in the last century, the Geneva Convention relating to Development of Hydraulic Power affecting more than one State (1923) and other (scarce) sources of international water law had shown their limits and inadequacy not only for resolving pending developmental problems, but also for addressing serious interstate disputes concerning the rights of upstream and downstream states to the waters of international rivers (some of the more well-known disputes included the Helmand, Indus, Nile, Jordan and Yarmouk, and Columbia rivers). At the time, the U.N. International Law Commission was not willing to deal with the issue of codification of the applicable law considering it to be premature.

In the United Nations system, the problem was identified and investigated beginning in the late 1940s, and addressed continually through the 1990s when long-lasting efforts by different bodies and agencies finally resulted in the adoption of the UN Convention on the Law of Non-navigational Uses of International Watercourses in 1997.

This monograph is the result of research aimed at highlighting the details of the initial period of the ILA’s efforts to respond to the situation. Its Rivers Committee was assigned in 1954 “to study the various legal, economic and technical aspects of rights and obligations between states as to the inland waters, […] with the purpose of elaborating practical recommendations for international arrangement”. Besides a review of the broader context in which the ILA efforts and activities were situated, the monograph is focused on detailed elaboration and analysis of the documents drafted by the Rivers Committee, which, under the strong supervision and precise guidelines of the management bodies of the ILA, led step-by-step to the approval of the famous Helsinki Rules on the Uses of the Waters of International Rivers in 1966. This is followed by a discussion about the Helsinki Conference and its resolution, and then a detailed analysis of each chapter of the Helsinki Rules. The concluding part of the monograph highlights the global acceptance and wide influence exerted by the Helsinki Rules on shared water resources and related disputes, in particular the UN Watercourses Convention.

The monograph points out that the Helsinki Rules were neither ideal nor complete. As a “delicate balance between widely divergent views”, the Helsinki Rules were subject to the scrutiny of two subsequent ILA committees, which were active until 2004. Those committees studied various topics and formulated a series of articles supplementary and complementary to the Helsinki Rules with the aim of updating, upgrading and revising certain details. In that way, the Helsinki Rules served as reliable ground for further exhaustive study in this field, what eventually resulted in the comprehensive and consistent set of ILA rules compiled in the Campione Consolidation of the Rules on International Water Resources, 1996 – 1999 (2000).

The monograph also briefly indicated the attempt of the ILA to revise its entire body of international water law compiled in the Campione Consolidation, through approval of the Berlin Rules on Water Resources (2004), which diverge substantially from the key principles as set out in the Helsinki Rules and all other ILA rules subsequently approved, and from the final output of the International Law Commission on the law of non-navigational uses of international watercourses (1996), the UN Watercourses Convention (1997), and from the ICJ judgment in the Case concerning the Gabčikovo – Nagymaros Project (1997) (see Berlin Rules Dissenting Opinion).

Finally, the monograph calls for further investigation and critical analysis and evaluation of the entire body of work by the ILA in the field of international water law, including the outputs of two later ILA committees and the background leading to the approval of the Berlin Rules. The author argued that such research might show that the Helsinki Rules, in the advanced, revised and enriched form, expressed in the Campione Consolidation, are a safe pivot, marking the way out from the confusion caused by emerging proliferation of wishful concepts and ideas in this still young branch of international law.

The monograph is dedicated to the memory of Dr Dante Caponera (1921-2003), and the other members and officers of the ILA Rivers Committee.

The entire article is available here.

 

Posted in Brill Research Perspectives – International Water Law, International Water Law, New Resources & Information | Comments Off on The International Law Association Helsinki Rules: Contribution to International Water Law

Shared Watercourses and Water Security in South Asia: Challenges of Negotiating and Enforcing Treaties

Monday, August 27th, 2018

The following essay by Drs. Salman M. A. Salman and Kishor Uprety is a summary of their recently published monograph (under the same title), which appears in Vol. 3(3) 2018, pp. 1-100, of Brill Research Perspectives in International Water Law.  Dr. Salman is an academic researcher and consultant on water law and policy and Editor-in-Chief of Brill Research Perspectives, International Water Law. He can be reached at SalmanMASalman [at] gmail.com. Dr. Uprety is Senior Lawyer with the Asian Infrastructure Investment Bank and an Associate Editor of Brill Research Perspectives, International Water Law. He can be reached at Dr.kishoruprety [at] gmail.com.

 

A large number of rivers in the South Asia region are shared across borders. Afghanistan, Bangladesh, Bhutan, China, India, Nepal and Pakistan share more than two dozen major rivers. Conflicting claims over those transboundary watercourses is a major security challenge in the region. Indeed, shared watercourses have influenced South Asia’s geography and history, as well as riparians’ responses to the challenges of utilizing, managing, and protecting such water bodies. Because of scarcity, population growth, and climate change impacts, national calls for water security have become louder and more intense in each of these countries. Consequently, collaboration among the countries of South Asia for ensuring equitable sharing of such watercourses has not been optimal.

Map of South Asia's shared watercourses

Map of South Asia’s shared watercourses

In addition, other factors such as information sharing and lack of trust has exacerbated the differences. While most countries do not have reliable systems for data generation, those possessing some hydrological data consider them state secrets, restricting their exchange. Even when treaty obligations exist, data-sharing practices are ad hoc, and the range of information shared is limited. Thus, negotiating new transboundary water treaties amongst the South Asia countries has become a daunting task, and enforcing existing ones remains a real challenge.

With the above constraints in the background, the monograph provides an overview of the notion of water security in South Asia, and discusses the challenges as well as the opportunities for establishing governance frameworks for shared watercourses in the region.

The introduction of the monograph begins with an analysis of the concept of water security, and how the concept emerged and spread as a world-wide and complex phenomenon. It also discusses the challenges the concept imposes in designing and implementing governance regimes for shared watercourses. To further set the stage and focus, and to establish a better appreciation of the challenges, the introduction then discusses the geopolitical setting of the region.

The first part of the monograph starts by discussing the treaty practices in South Asia regarding their shared watercourses. Each instrument is presented as a unique document and effort, finalized after lengthy negotiations with each of the riparians’ specific objectives, interests and strategies in mind. In that context, the monograph reviews the regimes for shared watercourses already in force, as well as those that are under discussion and consideration.

The Indus and the Ganges river basins are the two regimes that are currently in force. The discussion of the Indus Basin regime focuses on the historical background and the complexities involved in the unusually long process of the treaty negotiations. The discussion involves the role of the World Bank, which provided its good offices to the parties, and the reasons for success of the Bank’s intervention. This is followed by an analysis of the treaty provisions, particularly its unique dispute resolution mechanisms. In this context, the monograph also discusses the several cases of “differences” and “disputes” that have emerged between the two riparian parties─India and Pakistan─and analyzes how the treaty provisions facilitated their resolution. This part of the monograph also elaborates and critiques the role of the World Bank in the dispute resolution process.

The second regime in force discussed in the monograph relates to the Ganges Basin, including some of its tributaries. Several treaties have been concluded for the governance of the Basin. The monograph reviews and analyzes each of them, including the history of the negotiations and the main provisions of each treaty, with a critical analysis of implementation.

The discussion also covers the efforts in South Asia, which have been ongoing for several decades, to establish regimes to govern some other important shared watercourses. Negotiations amongst the riparian countries on these basins have been difficult and the outcomes have been poor. In this context, the monograph reviews the regimes pertaining to the Teesta and the Brahmaputra basins, and highlights the difficulties that have emerged.

The subsequent part of the monograph deals with the 1997 UN Watercourses Convention. It focuses on the position of each of the South Asian countries vis-a-vis the Convention, which, interestingly, none has become a party to. The monograph discusses the reasons for such positions, and analyzes the countries’ malaise, as well as their specific concerns regarding the Convention.

The conclusion of the monograph recapitulates and highlights the main problematic situations of South Asia’s shared watercourses and analyzes the prospects for addressing them. In so doing, the conclusion provides some concrete suggestions derived from experiences in other countries and shared basins. The conclusion also includes some recommendations that can assist in enhancing cooperation, mutual trust and understanding amongst the South Asia riparians, and strengthening and consolidating of their achievements on their shared watercourses.

The monograph is dedicated “To the memory of Professor Charles B. Bourne (1921 – 2012); one of the pioneers and innovators in the field of international water law.”

The entire article is available here.

 

Posted in Asia, Brill Research Perspectives – International Water Law, Transboundary Rivers, UN Watercourses Convention | Comments Off on Shared Watercourses and Water Security in South Asia: Challenges of Negotiating and Enforcing Treaties