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A Treaty on the Brink? India’s Suspension of the IWT and the Case for Cooperative Transboundary Water Governance

Monday, June 16th, 2025

The following post is by Drs. Tadesse Kebebew, Caroline Pellaton, and Mara Tignino. Kebebew is a Legal Researcher and Project Manager at the Geneva Water Hub, a joint center of the University of Geneva and the Geneva Graduate Institute; Pellaton is the Operations Director at the Geneva Water Hub; Tignino is Senior Lecturer at the Faculty of Law and the Global Studies Institute and Lead Legal Specialist of the Platform for International Water Law at the Geneva Water Hub. You can reach Dr. Tignino at Mara.Tignino [at] unige.ch.

How a ‘terror’ attack sparked a water dispute

Long regarded as one of the most resilient frameworks for transboundary water cooperation, the Indus Waters Treaty (IWT) signed in 1960 is now under acute strain amid escalating geopolitical tensions, marked by deepening mistrust, intensifying nationalist discourse and sustained militarisation. It was within this volatile context that on 22 April 2025, an armed group known as The Resistance Front carried out a deadly attack on a group of tourists in Pahalgam, located in Indian-administered Kashmir. The assault resulted in the deaths of at least 26 civilians and prompted immediate condemnation from Indian authorities, who attributed the attack to Pakistan-based militant support.

The Indus River Basin. Source: United Nations

In the immediate aftermath, on 24 April 2025, India formally notified Pakistan of its decision to suspend the IWT. In its official communication, India appeared to cite two justifications for this decision – a fundamental change in circumstances since the treaty entered into force and breaches of treaty obligations by Pakistan. Specifically, India pointed to what it described as ‘sustained cross-border terrorism targeting the Indian Union Territory of Jammu and Kashmir’, asserting that these ongoing hostilities have generated serious ‘security uncertainties’ and thereby impaired India’s ability to fully utilise its entitlements under the treaty.

On 12 May 2025, Prime Minister Narendra Modi declared that ‘India’s water will flow for India’s benefit, it will be conserved for India’s benefit, and it will be used for India’s progress’, reiterating his longstanding position that ‘blood and water cannot flow together’. This stance was reinforced on 22 May 2025, when External Affairs Minister Subrahmanyam Jaishankar confirmed that India’s participation in the IWT would remain in abeyance until Pakistan ‘credibly and irreversibly’ ends its support for terrorism. These statements reflect a deliberate linking of transboundary water cooperation under the IWT to broader national security concerns.

A legacy of cooperation and disputes

The IWT, signed in 1960 under the auspices of the World Bank, is a rare example of resilient cooperation in a historically hostile relationship. It allocates the three eastern rivers (Ravi, Beas, Sutlej) to India and the three western rivers (Indus, Jhelum, Chenab) to Pakistan. Under the treaty, India was granted exclusive use of the three eastern rivers – Ravi, Beas and Sutlej, while Pakistan received rights over the three western rivers – Indus, Jhelum and Chenab. India retained limited rights to use the western rivers for non-consumptive purposes, such as hydropower, subject to specific design and operational constraints intended to protect downstream flows to Pakistan. In cases of disputes, the IWT establishes dispute resolution mechanisms comprising the Permanent Indus Commission, the resort to a neutral expert, and an arbitration procedure. India and Pakistan have already used all these mechanisms and currently, two disputes are under review by an arbitration tribunal and a neutral expert.

Indus Waters treaty signing on 19 September 1960. From left to right: Jawaharlal Nehru, Prime Minister of India; Mohammed Ayub Khan, President of Pakistan; and William Illiff, World Bank vice president. Source: The World Bank

Despite armed conflicts (1965, 1971, Kargil 1999), military standoffs, and tensions, the IWT has stood firm for over six decades, serving as a lifeline for millions dependent on the Indus River basin. Cooperation over water has persisted, even as broader bilateral ties fractured. Nevertheless, the treaty has been tested by recurring disagreements over dam designs and water use. Notably, the Kishenganga Hydroelectric Project on the Jhelum River led to formal arbitration before the Permanent Court of Arbitration, which in its 2013 Final Award, upheld India’s right to divert waters but imposed minimum environmental flow requirements to safeguard Pakistan’s downstream interests. These and other disputes, including those over the Baglihar Dam, reveal the capacity of the treaty to address disputes within a clear legal and institutional framework. Its strong dispute-resolution clause allows the Parties to find common solutions despite the geopolitical and hydrological stress. More recently, concerns have grown over what Pakistan views as India’s efforts to reduce water cooperation to a zero-sum game, threatening the cooperative spirit that the IWT was designed to foster.

India’s suspension of the IWT

The Neelum–Jhelum Hydropower Plant, Pakistan. Source: SimonImages, iStock

The announcement by the Government of India that the treaty would be ‘held in abeyance with immediate effect’ constitutes an unprecedented move in the treaty’s history and has since sparked a wave of intense legal debates (see here, here and here). India has sought to justify this decision by invoking the doctrine of ‘fundamental change of circumstances’ and alleging a material breach by Pakistan, specifically citing Pakistan’s alleged support for cross-border terrorism that jeopardizes its national security. While these concerns are of considerable political significance, their adequacy as legal grounds for a unilateral suspension of IWT is questionable.

Do the justifications cited by India meet the criteria of a ‘fundamental change of circumstances’ as understood in international treaty law? Can persistent cross-border terrorism and the associated security challenges be deemed a material breach sufficient to justify unilateral suspension? In the following sections, we scrutinize the legality of India’s suspension of the IWT from the standpoint of international treaty law, particularly as codified in the Vienna Convention on the Law of Treaties (VCLT) of 1969. Although India is not a party to the VCLT, its provisions are broadly recognized as reflective of customary international law (see the Gabcíkovo-Nagymaros case (Hungary/ Slovakia, 1997, para.46)) and thus applicable to the conduct of all states. This analysis evaluates India’s justifications against a tightly constrained legal framework for treaty suspension recognized in customary international law – operation of the treaty or mutual consent, impossibility of performance and fundamental change of circumstances.

Operation of the treaty or mutual consent

The VCLT sets out the foundational legal framework governing the conclusion, entry into force, application, suspension and termination of treaties. Article 26 of the VCLT enshrines the principle of pacta sunt servanda, which requires that treaties in force must be observed and performed in good faith by all parties. There are also legally recognized grounds to suspend a treaty in whole or in part. The first of such grounds is by the operation of the treaty (either expressly or by implication) or mutual consent of the parties involved (either during the conclusion of the treaty or afterwards) (see Articles 57-59). These provisions presuppose a mutual and voluntary decision by all treaty parties to suspend its application, whether partially or wholly.

However, the IWT contains no clause permitting unilateral suspension, and there is no evidence that Pakistan has provided explicit or implicit consent to such action. On the contrary, Pakistan has consistently maintained that the treaty remains fully in force and has actively sought third-party adjudication to ensure its continued implementation. As such, in the absence of any mutual agreement, India’s unilateral decision to suspend the treaty lacks a valid legal basis under these provisions. The essential element of reciprocal consent is absent, and therefore, this route does not provide India with a lawful justification for its actions.

Fundamental change of circumstances

India’s primary legal justification centres on the claim that there has been a fundamental change of circumstances since the treaty entered into force. Under Article 62 of the VCLT, the doctrine of rebus sic stantibus, allows for the termination or suspension of a treaty if an unforeseen and fundamental change of circumstances has occurred, radically transforming the obligations imposed by the treaty. While frequently invoked, this ground is rarely accepted in international practice and is interpreted restrictively to preserve the stability and continuity of treaty relations. The International Court of Justice (ICJ), in the Gabcíkovo-Nagymaros case, affirmed that ‘the negative and conditional wording of Article 62’ is a clear indication that the stability of treaty relations requires that ‘the plea of fundamental change of circumstances be applied only in exceptional cases’ (para. 104).

For such a claim to succeed, the alleged change must (1) have been unforeseen by the parties at the time of the treaty’s conclusion, (2) constitute an essential basis of their consent to be bound by the treaty, and (3) have radically altered the nature of the obligations still to be performed. In the Fisheries Jurisdiction case (United Kingdom v. Iceland, 1973), the ICJ underscored that only changes of circumstances that are ‘fundamental’ or those which constituted an essential basis of the consent of the parties to accept a treaty and which have resulted in a radical transformation of the extent of the obligations still to be performed, can be accepted as valid grounds (paras 36-38, & 41). In the Gabcíkovo-Nagymaros case, the ICJ reemphasized that this ground requires that the fundamental change of circumstances ‘radically transform the extent of the obligations’ to something essentially different from what is undertaken initially and that such changes ‘must have been unforeseen’ (para.104). Interestingly, it indicated that ‘new developments in the state of environmental knowledge’, arguably including climate change-related issues, cannot be said unforeseen (para.104).

These precedents underscore the ICJ’s insistence on strict adherence to the principle of good faith and stability of conventional law in international treaty relations and confirm that no party may unilaterally abrogate its obligations on the vague basis of changed political, social or environmental conditions.

In light of the foregoing, India’s claims in its official statement of 24 April 2025 of the ‘altered population demographics’ and ‘the need to accelerate the development of clean energy and other changes in the assumptions underlying the sharing of waters, do not constitute ‘fundamental change of circumstances’.

A material breach of treaty obligation

India’s second justification is the allegation that Pakistan has committed a material breach of the treaty by providing support to cross-border terrorism. Under Article 60 of the VCLT, a party to a bilateral treaty may suspend its obligations if the other party commits a material breach, defined as a violation of a provision essential to the treaty’s object or purpose.

This legal ground imposes a high threshold and is intended to balance the stability of treaty relations with flexibility in the face of serious violations. Crucially, the breach must pertain directly to the core provisions of the treaty itself, not to external political or security disputes. In this case, no evidence has been put forward that Pakistan has breached any substantive provisions of the IWT, which remains an agreement on water sharing in the Indus River Basin. Allegations of terrorism, while grave, fall outside the scope of the treaty and, therefore, cannot be construed as a material breach of its core provisions. Moreover, the IWT includes a detailed dispute resolution framework India was obligated to pursue before taking unilateral action. India’s bypassing of this process weakens the legal validity of its claim under Article 60.

Accordingly, India’s assertion that Pakistan’s alleged support for terrorism justifies suspending the treaty is legally unconvincing. Firstly, a terrorist incident, even if state-attributed, does not satisfy the threshold for suspension of a water-sharing treaty. This claim concerns political and security matters that do not alter the physical or institutional operation of the water-sharing arrangement. Secondly, according to the IWT itself, ‘the existence of any fact which, if established, might constitute a breach of this Treaty shall first be examined’ by the Permanent Indus Commission (Article XI). Thirdly, the treaty has already withstood armed conflicts and decades of hostile relations, which suggests that it operates independently of fluctuating bilateral tensions. Consequently, India’s position does not satisfy the stringent requirements of Article 62.

Moreover, even if India seeks to justify its suspension of the Indus Waters Treaty (IWT) as a lawful countermeasure under the law of state responsibility, namely, a temporary and unilateral non-performance of obligations in response to a prior internationally wrongful act (see Articles 49-54 of the Draft articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)), we argue that the conditions set out in the ARSIWA are not met. Countermeasures involve a temporary derogation from treaty obligations and may be taken in response to violations of any international obligation by the other party, not necessarily one arising from the same treaty. On this basis, India could argue that Pakistan’s alleged breaches of other international obligations justify its actions.

However, countermeasures are strictly regulated under the ARSIWA. To be lawful, they must be proportionate, reversible and aimed at inducing compliance, not punishing the offending state. India’s abrupt and unilateral suspension of the IWT, particularly in the absence of prior notification or genuine efforts at dispute resolution, appears more punitive than corrective. Additionally, countermeasures must not interfere with obligations essential to the protection of fundamental human rights (Article 50, ARSIWA). Given that access to water is intrinsically linked to public health, food security and basic human survival, any disruption in water-sharing under the IWT risks crossing into unlawfulness, especially if it jeopardises drinking water or irrigation critical to affected populations.

Supervening the impossibility of performance

A further legal ground, though not explicitly raised by India, could be inferred from its communication – the supervening impossibility of performance. Article 61 of the VCLT permits termination or suspension only when the performance of the treaty becomes objectively impossible due to the permanent disappearance or destruction of an essential element necessary for performance. A commonly cited example of this ground is the ‘drying up of a river’, where such an event renders the performance of the treaty objectively impossible (Shaw, 2017, p. 719).

In the case of the IWT, the Indus River system and its tributaries have not changed and are not at risk of drying up. No objective impossibility, whether legal or physical, has been demonstrated. Besides, neither party has asserted that performance under the IWT has become impossible. India’s security concerns, even if genuine, pertain to unrelated security and geopolitical issues rather than any factual impediment to fulfilling the treaty’s core obligations.

Continuing obligations under international water law (IWL)

Even assuming, for argument’s sake, that India could validly suspend or withdraw from the IWT, it would still be bound by general principles of international water law. These are most clearly articulated in the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses. While neither India nor Pakistan is a party to the Convention, its key principles – equitable and reasonable utilization, the obligation not to cause significant harm and the duty of prior notification – are widely recognized as customary international law (see e.g., here, pp.14 & 16). These obligations ensure that riparian states cooperate in good faith and do not undertake actions that would materially harm co-riparian rights.

Hence, India’s suspension of treaty obligations does not place it outside the scope of international legal scrutiny. As an upstream riparian state, India has a duty to manage its water resources in a manner that does not significantly harm Pakistan’s rights. A unilateral disruption of river flows or suspension of data-sharing mechanisms would likely breach these customary obligations, subjecting India to international legal accountability.

A case for a peaceful dispute resolution

Under international law, states must resolve their disputes peacefully (UN Charter, Articles 33-38). Reflecting this principle, the IWT incorporates a structured three-tiered dispute resolution mechanism: the Permanent Indus Commission, recourse to a Neutral Expert, and adjudication by a Court of Arbitration. Of particular importance is the mandate given to the Permanent Indus Commission, i.e., ‘to establish and maintain co-operative arrangements for the, implementation of this Treaty, to promote co-operation between the Parties in the development of the waters of the Rivers’ (Article VIII, IWT).

India’s previous engagement in the Kishenganga arbitration clearly illustrates that treaty-related disputes can be addressed effectively through these mechanisms, without resorting to suspension or unilateral measures. Currently, another dispute is pending before an Arbitration Tribunal. The dispute was brought by Pakistan in 2016 and concerns the construction of several hydroelectric plants on the Indus, Jhelum and Chenab rivers and their tributaries. Although India has decided not to appear before the Tribunal and considered a neutral expert must address the questions placed before the judicial body, the Arbitral Tribunal declared itself as competent to decide on the questions raised in Pakistan’s Request for Arbitration.

Conclusion

This analysis finds that India’s suspension of the IWT lacks a valid legal basis under international law. None of the recognized grounds – mutual consent, impossibility of performance, or fundamental change of circumstances – apply to the case at hand, making the action incompatible with the principle of pacta sunt servanda and broader international law principles and norms. Unilateral suspension risks weakening longstanding institutional cooperation and unravelling one of the few enduring mechanisms of India–Pakistan engagement. Rather than suspending or disregarding the treaty, a more constructive path lies in allowing the Commission to incorporate new environmental standards in the application and interpretation of the provisions of the Treaty.

As IWL continues to develop and refine, water must be used by India and Pakistan as a tool of rapprochement and dialogue and not as an additional means of division. Preserving and reinforcing the IWT and its Permanent Indus Commission offers a vital opportunity for dialogue and shared prosperity in a region. A recommitment to the treaty is not only legally necessary, but geopolitically urgent.

Finally! the Nile Basin Cooperative Framework Agreement Enters into Force

Monday, July 15th, 2024

The following post is by Dr. Salman. M.A. Salman, an academic researcher and consultant on water law and policy and former water law advisor to the World Bank. You can reach Dr. Salman at SalmanMASalman [at] gmail.com.

In a stunning development, the Republic of South Sudan announced on Monday 8 July 2024 that its Transitional National Legislative Assembly (TNLA) unanimously voted to accede to the Nile Basin Cooperative Framework Agreement (CFA) [see here].

The CFA (also known as the Entebbe Agreement) has an intricate history which dates back to 1999, following the establishment by the Nile Basin riparian countries of the Nile Basin Initiative (NBI). The main objective of the NBI has been to conclude a cooperative framework agreement that would incorporate the principles, structures and institutions of the NBI, and that would be inclusive of all the Nile riparians. Work on the CFA, facilitated by the World Bank, the UNDP and other donors, started immediately after the NBI was formally established, and continued for more than ten years.

However, the process ran into some major difficulties as a result of the resurfacing and hardening of the respective positions of the riparians over the Nile colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters. Egypt and Sudan demanded an explicit reference to those uses and rights (termed as their “water security”) in the CFA; a demand that was vehemently rejected by the other riparians who broached the banner of “equitable and reasonable utilization.” Those differences persisted and could not be resolved at the negotiations or ministerial levels, and no agreement on the final draft CFA could be reached.

Nonetheless, on 14 May 2010, in an historic development, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in Entebbe, Uganda, and were subsequently joined by Kenya and Burundi, raising the number of the signatories to six.

The CFA lays down some basic principles for the protection, sharing and management of the Nile Basin. It establishes the principle that each Nile Basin state has the right to use, within its territory, the waters of the Nile River Basin, and lays down a number of factors for determining equitable and reasonable utilization. The CFA is modelled largely on the UN Convention on the Law of the Non-navigational Uses of International Watercourses.

In addition to the factors enumerated in the Watercourses Convention, the CFA includes the contribution of each basin state to the waters of the Nile River System, and the extent and proportion of the drainage area in the territory of each basin state [see here]. The CFA will enter into force 60 days after six countries have ratified or acceded to the document and deposited their instrument with the African Union; i.e. on 6 October 2024.

The process of ratification of the CFA started in June 2013, four years after its signature, by Ethiopia, followed in August of that year by Rwanda. Tanzania ratified the CFA in 2015, followed by Uganda in 2019, [see here]. Burundi joined those four riparians and ratified the CFA in 2023, raising the number of ratifications critically to five [see here].

Subsequently, all eyes were cast on the ratification by Kenya, the sixth country to sign the CFA, which would enable the CFA to enter into force. However, that did not take place. Instead, South Sudan did it, putting Kenya in the awkward position of being the only signatory not to ratify the CFA.

The Republic of South Sudan emerged as an independent state on 9 July 2011, and was admitted to the NBI on 5 July 2012 [see here]. That decision clearly favored the Nile upper riparians, based on ethnicity, geography, history, culture and interests. When it joined the NBI, South Sudan could not sign the CFA because the signing process closed in 2000, long before its birth. But, it could accede to the instrument.

The pressures from each of the two sides to the CFA on South Sudan kept South Sudan wavering on accession and none-accession to the CFA for a long time. In fact, the proposed bill for the accession of South Sudan had been on the agenda of the TNLA since mid-2023, until its unanimous sudden approval was announced on 8 July 2024.

The entry into force of the CFA will create new momentous realities which Egypt and Sudan cannot, and indeed should not, overlook or underestimate. It will enable the establishment of the Nile Basin Commission replacing the NBI with wider and more elaborate mandate, power, visibility and recognition by the world water and development aid communities. Entry into force of the CFA will also end the long academic and futile debate on the Nile colonial treaties. Thus, it is for Egypt and Sudan own interests to join the CFA, and to work in the spirit of cooperation with the other Nile riparians to manage, share, develop and protect the Nile River Basin. Afterall, and as mentioned above, the CFA is modelled on the UN Watercourses Convention that was endorsed by more than one hundred countries in 1997, and has been in force since 2014.

Preliminary Reflections on the ICJ Decision in the Dispute between Chile and Bolivia Over the Status and Use of the Waters of the Silala

Friday, December 9th, 2022

The following essay, authored by Francesco Sindico, Laura Movilla Pateiro, and Gabriel Eckstein, was first published on EJIL: Talk!, the Blog of the European Journal of International Law. It is reposted here with their kind permission.

Background

The Silala waters originate in Bolivia near its border with Chile, at an altitude of 4000 metres. This is one of the driest parts of the planet and home to unique mountain wetlands known as bofedales. In 1928, the Silala was heavily canalized on the Bolivian side of the border. According to Chile, this was done to address water quality concerns. Bolivia argued that the purpose was to enhance the quantity of Silala water flowing downstream.

A Silala canal in Bolivia

Chile and Bolivia, for the past six years, have engaged in a dispute before the International Court of Justice over the waters of the Silala. On 01 December 2022 the Court released its decision. This summary highlights some key facts and the outcome of the case, and raises a number of preliminary questions that the case presents about general international law and the law of international watercourses.

At the heart of the dispute is the “nature” and the “use” of the Silala. In a nutshell, Chile wanted the Court to “declare” the Silala an international watercourse entirely governed by customary international law, that its “use” was lawful according to international law, and that Bolivia’s recent proposals and efforts to use the Silala were unlawful. Bolivia presented counterclaims asking the Court to declare that it had sovereignty over both the infrastructure located in its territory and the enhanced portion of the surface flows, which benefitted Chile. Bolivia also sought a ruling that any future deliveries of enhanced flows to Chile had to be subject to an agreement.

Outcome

Chile had always considered the Silala as an international watercourse. Bolivia started the proceedings considering the Silala to be domestic springs from which water was diverted downstream into Chile by means of the artificial infrastructure. Scientific studies commissioned by Bolivia during the judicial process revealed that the waters of the Silala would have flowed on the surface into Chile even without canalization. Thus, the positions of the two sides eventually converged. The only disagreement was on the effect of the infrastructure on the Silala’s surface flows with Chile maintaining that it was minimal (1 to 3%) and Bolivia considering that it was more significant (11 to 33%). Hence, Bolivia maintained that the Silala was an international watercourse with unique characteristics due to the extensive canalization infrastructure that enhanced the Silala’s surface flows. Bolivia, however, agreed in the oral proceedings that the Silala was subject to customary international law.

Silala Map
Map of the Silala Region

In deciding Chile’s first claim, the Court acknowledged that the parties had reached an agreement over the nature of the Silala as an international watercourse and that both agreed that customary international law applied to all of its waters. As a result, the Court concluded that the claim no longer had any object and that it did not have to issue a decision (§59).

The Court reached the same conclusion on Chile’s second (§65), third (§76) and fourth (§ 86) claims. In the second claim, it emphasized that both Parties agreed that the principle of equitable and reasonable utilisation applied to all the waters of the Silala, and that both parties were entitled to such utilisation. In the third claim, the Court highlighted statements made by both sides that Chile was entitled to its current use of Silala water as a function of its right to equitable and reasonable utilisation, and that such use was without prejudice to any future equitable and reasonable use that Bolivia might make, including related to the dismantling of the canals and restoration of the wetlands. With regard to Chile’s fourth claim—related to the threshold of harm that States must avoid when using the waters of an international watercourse in a way that causes pollution—the Court concluded that because Chile clarified its position during the proceedings that the actionable level was “significant” harm, as Bolivia had consistently argued, there was no disagreement between the Parties. In each of these claims, the Court acknowledged the agreement, ruled that it was devoid of any object, and declined to issue a decision.

Where the Court identified a disagreement in law and facts was in relation to Chile’s last claim. Here, Chile asserted that Bolivia had breached several procedural provisions of international law, namely the obligation to notify and consult with respect to measures that may have an adverse effect on other watercourse States. Since neither State is a party to the 1997 United Nations Watercourses Convention (UNWC) (§54), the Court decided the case on the basis of customary international law. However, Chile argued that Articles 11 and 12 of the UNWC reflected customary international law related to notification and consultation obligations. The Court rejected Chile’s assertion related to Article 11, clarifying for the first time in its case law that there was no state practice to justify such a conclusion (§111). It also acknowledged that while the Parties and the Court agreed that Article 12 reflected customary international law Chile and Bolivia had divergent views on the threshold that triggers a violation. According to Chile, “significant adverse effect” was the relevant threshold when considering application of the obligation to notify and consult on planned measures, as well as when the results of an environmental impact assessment must be shared. In contrast, Bolivia argued that the obligations only arise where there was a risk of significant transboundary harm. Relying on its jurisprudence in the cases of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), the Court sided with Bolivia. While it acknowledged that the Commentaries to the Draft Articles on the Law of Non Navigational Uses of International Watercourses prepared by the UN International Law Commission did refer to the lower threshold, it concluded that Article 12 of the UNWC “does not reflect a rule of customary international law relating to international watercourses that is more rigorous than the general obligation to notify and consult contained in its own jurisprudence” (§117). The Court then reviewed the facts in the case and concluded that Chile had failed to allege or demonstrate any harm resulting from Bolivia’s planned measures on the Silala (§127). As a result, it unanimously rejected Chile’s claim (§128).

Bolivia’s three counterclaims received a similar fate as had Chile’s claims. The Court ruled that the Parties had reached an agreement during the proceeding on the first two, rendering them without object and negating the need for a decision; it also rejected Bolivia’s third claim.

Bolivia’s first counterclaim requested a declaration recognizing its sovereignty over the infrastructure and Bolivia’s right to remove it. In its second counterclaim, a corollary of the first, Bolivia requested a declaration of its sovereignty over the enhanced flow generated by the infrastructure. Since Chile had fully accepted Bolivia’s first counterclaim in its pleadings and during oral argument, the Court concluded that it was without object and required no decision (§147). Similarly, the Court considered that the Parties had reached a consensus on the second counterclaim as it related to Bolivia’s right to dismantle the canals and diminish the flow of the surface water downstream into Chile (§155). Thus, it also declined to rule on this point. As to Bolivia’s final counterclaim—asking the Court to declare that any need by Chile to have Bolivia maintain the infrastructure and enhanced flows would be subject to an agreement— the Court rejected it on grounds that it presented a hypothetical future scenario (§162).

Questions

The Silala case raises unique questions both for general international law and international water law. For the former, a key question relates to the consequence of new evidence and the Parties’ evolving positions during the proceedings that bring them closer to an agreement on the substance of a claim. In such cases, should the Court issue a declaratory judgement or, as occurred in the Silala case, is it free to declare a claim void of object that requires no decision? In this regard, see the Declaration of Judge Charlesworth and the Separate opinion of Judge ad hoc Simma. Another question pertains to the use of experts by the Parties, the Court’s request for cross-examination of the experts during the hearing, and the lack of nearly any reference to the science or experts in the decision.

From an international water law perspective, the Silala case appears to provide some clarification on the procedural obligation to notify and consult under customary international law. Question will surely be asked as to whether it has done so in a progressive or regressive manner. However, less clarity emerges from the decision on the extent to which riparians must cooperate to fulfil their obligations to notify and consult, on the nature of an international watercourse, and on the need to take into account the “uniqueness” of such a watercourse in the context of applying the principle of equitable and reasonable use.

While the Silala decision is distinct in being one of the few ICJ pronouncements on a dispute involving an international watercourse, it is still too early to comprehend is full value. In addition to the above, other questions will likely arise from the case for both general international law and international water law. For now, we hope these are enough to begin the discussion.

Francesco Sindico, Laura Movilla and Gabriel Eckstein all served as Counsel for the Plurinational State of Bolivia in the ICJ Silala case. None of what is written here should be attributed in any way to the Plurinational State of Bolivia, and only represents the positions and opinions of the three authors in their personal capacities.

Richard Paisley and Taylor Henshaw: The 1997 UN Watercourses Convention from a North American Perspective

Sunday, August 24th, 2014

The following post by Richard Paisley and Taylor Henshaw is the tenth and final essay in the series related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Messrs. Paisley and Henshaw are with the Global Transboundary International Waters Governance Initiative at the University of British Columbia in Vancouver, Canada, which Mr. Paisley directs. Mr. Paisley can be reached at: rpaisley [at] internationalwatersgovernance.com.

Introduction

The nations of North America—Canada, Mexico and the United States (USA)—share a significant number of international drainage basins and transboundary aquifers, comprising 16% of the world’s transboundary river basins. The three countries have entered into various bilateral agreements with their neighbors for the management and allocation of their transboundary waters. However, while each voted in favor of the UN Watercourses Convention (UNWC) when it came before the UN General Assembly, none of them has ratified the instrument. The objective of this essay is to critically consider the absence of these three nations from the roll of the UNWC and to assess whether ratifying and implementing the UNWC would be in the individual and collective best interest of all three countries.

International Freshwater Drainage Basins of North America. Source: UN Watercourses Convention Online Users Guide

Perceptions

The three nations appear to be in no great rush to ratify and implement the UNWC. This may be due to a perception that their international drainage basins are sufficiently managed without the UNWC: long-standing bilateral institutions have been established to deal with various aspects of the conservation and management of international drainage basins in North America.

Prominent among these mechanisms are the International Joint Commission (IJC) between Canada and the USA, and the International Boundary and Water Commission (IBWC) between Mexico and the USA. The history and practice of the IJC and the IBWC provide a rich body of work to review that falls beyond the scope of this essay. Nevertheless, it is pertinent to mention some of the challenges the two commissions face, such as: managing significant risks to water quality and quantity; the linking of border environments to binational trade and associated agreements; new stresses on public health and national economies; changes due to population growth and industrialization; greater demands on shared resources; increasing emphasis on public and indigenous peoples participation in decision-making; greater value placed on non-traditional water uses, such as “in stream” flows; and the imperative to establish ecosystem and active adaptive management approaches to resource management.

In addition, both institutions have experienced recent changes to their constituencies with the increasing influence of environmentalists and economic, social justice, and sustainable development advocates. As a result, ratification and implementation of the UNWC could help make both the IJC and the IBWC more relevant by increasing the focus on, and energy devoted to, the more sustainable conservation and management of transboundary waters and related resources in all three countries.

Substantive Objections

Whether and the extent to which Canada, Mexico and the USA have substantive objections to the UNWC is not well known. This may be because such objections are masked by the fact that all three countries were among, not just the 103 countries who voted in favor of the UNWC, but also the 38 countries to officially sponsor the UNWC.

On reflection, various substantive reasons may exist to explain why all three countries are not overly anxious to ratify and implement the UNWC. Mexico provides a good example. On the one hand, Mexico probably favors the UNWC, in part, because the Convention provides a basis for cooperating over measures to prevent, reduce and control pollution, including from the USA, which is an issue of great sensitivity to Mexicans. On the other hand, groundwater is tremendously important for Mexico where many believe that the conservation and management of shared transboundary aquifers necessitates a different international legal regime to that presented in the UNWC. More specifically, Mexico could be disinclined to ratify and implement the UNWC until more clarity is provided regarding the relationship between the UNWC and the emerging Draft Articles on the Law of Transboundary Aquifers. According to Stephen McCaffrey, such clarity, regrettably, may be a long way off and:

will crucially depend on eliminating both the overlap between the draft and the UN Convention in terms of the physical subject matter they regulate, and the notion of “sovereignty” over shared groundwater, which should have no place in any set of rules governing the use, protection, and management of shared freshwater resources.

Constitutional Politics

At the political level, the ratification and implementation of international treaties has become an increasingly challenging undertaking in all three countries.

In Canada, the negotiation, signing and ratification of international treaties is controlled by the executive branch of the federal government. However, many international treaties, such as the UNWC, deal with matters that fall under the provincial sphere of legislative jurisdiction pursuant to the division of powers in Canada between the federal government, the provincial governments and First Nations (sections 91, 92, 92A and 35 of the Canadian Constitution).  Also, according to Professor Emeritus of Economics and Forestry at the University of British Columbia, Peter Pearse:

A recurrent question in discussions about water management in Canada is “What is the role of the federal government?”  A stranger to these discussions might think, naively, that this is simply a constitutional question.  But even a good constitutional lawyer can not give a crisp answer.  To some extent the question is a political one – “What does the federal government think its role is, at the moment?”  This changes.

As a practical matter this means that ratification and implementation of the UNWC in Canada would likely trigger challenging and hard-nosed fiscal and other negotiations among the federal, provincial and First Nations levels of government. An analogous situation occurred when Canada was asked to ratify and implement the Espoo Convention on Environmental Impact Assessment in a Transboundary Context.

In the USA, the legal situation regarding international treaties is somewhat different, but possibly even more challenging. Under United States constitutional law, an international “treaty” is an agreement that has received the “advice and consent” of two-thirds of the United States Senate and has been ratified by the President (see here). As a practical matter, given the increasing political polarization within the United States Senate, obtaining the consent of two thirds of Senate members for any multilateral treaty, including the UNWC, would be exceedingly challenging.

Mexico is much closer to Canada constitutionally than to the USA as Mexico constitutionally allocates separate and exclusive spheres of authority to the states/provinces and the federal government. International treaties must conform to the Mexican Constitution in order to be valid. However, many international treaties address topics that in Mexico fall within the exclusive authority of the states/provinces. Seemingly, in practical terms this means that Mexico may need to enact domestic legislation to transform international treaty obligations into enforceable domestic law, which could be both time consuming and expensive.

Champions

Another reason why the UNWC has not yet been ratified and implemented in Canada, Mexico and the USA is the paucity of champions at the political level in all three countries. This resonates with Nicolo Machiavelli’s observation:

there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.

Justifying the UNWC in North America

Despite the apparent obstacles noted above, there are at least three compelling reasons why Canada, Mexico and the USA should immediately ratify and implement the UNWC. First, ratification and implementation will send a strong and important message to each other, and to the world community, generally, that sovereign states have important rights and responsibilities when it comes to transboundary freshwater resources.

Second, the fact that Canada and the USA are variously both upstream and downstream of each other and that the USA is upstream of Mexico, will particularly and importantly help dispel any lingering misperception that the UNWC may be biased in favour of downstream or upstream states.

Third, Canadian, Mexican and American support for the Convention could not be more timely given how the world community is currently struggling with the harsh realities of climate change and water scarcity.

Ratifying and implementing the UNWC in North America would also demonstrate a wider acceptance of practice under the Convention as representing customary international law. In turn this could place the UNWC higher on various political agendas and could help lead to a more stable framework for transboundary water cooperation globally.