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

Water During and After Armed Conflicts: What Protection in International Law?

Tuesday, November 15th, 2016

The following essay by Dr. Mara Tignino is a summary of her recently published monograph (under the same title), which appears in Vol. 1.4, 2016, pp. 1-111, of Brill Research Perspectives in International Water Law. Dr. Tignino is a Senior Lecturer and Coordinator of the Platform for International Water Law, Faculty of Law, University of Geneva. She can be reached at Mara.Tignino@unige.ch.

 

Armed conflicts affect water in several ways: destruction and damage of water facilities, attacks against power plants providing water supplies, and the collapse of water treatments and sewage systems. Air strikes conducted against water and electrical facilities in Syria and the contamination of groundwater resources in Gaza illustrate the many dimensions of armed conflicts’ impact on water. In my monograph, I examine the different regimes applicable to water during and after armed conflicts. Starting from an analysis of the rules of international humanitarian law (IHL), I also explore human rights law and international water law. I argue in favour of the complementarity of these regimes.  To allow for this complementarity to exist, I support the establishment of a single instrument that would gather all the rules protecting water during and after armed conflicts.

tigninoIHL specifically protects water supplies required by civilians. The First and Second Protocols to the Geneva Conventions (relating to the Protection of Victims of International Armed Conflicts, and to the Protection of Victims of Non-International Armed Conflicts, respectively) prohibit States and armed groups from attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population, such as drinking water installations and supplies and irrigation works. Despite these protections, exceptions exist where water-related installations are used “as sustenance solely for the members of its armed forces” or if they provide “direct support of military action”. While some water supplies could serve armed forces, such exceptions may not be sufficient if military action results in depriving civilians of necessary water supplies. Indeed, Article 56 §3 states that warring parties must refrain from acts that may be expected to reduce the civilian population to starvation, or cause them to move away.

Hostilities increasingly take place in urban environments. The urbanisation of conflicts heightens the risk of extensive damage to civilian objects such as electrical facilities. Experience has revealed the interconnections between electricity, access to water and public health. If a power plant is targeted as a military objective, damage to electricity networks can lead to interruption of water services and treatment of wastewaters. In some cases, electrical installations have been considered as “dual-use” objects. This means that they can be used for the civilian population as well as for military purposes. Although electrical facilities are protected under the rules of IHL as civilian objects, the scope of these norms is uncertain and in need of clarification.

During armed conflicts, warring parties often seek to control dams and dikes. Controlling strategic dams on the Tigris and Euphrates rivers has been at the centre of military operations carried out by the Islamic State in Syria and Iraq. Dams and dikes enjoy special protection under IHL. Both Article 56 of the First Protocol and Article 15 of the Second Protocol respond to the concern that the partial or complete destruction of dams and dykes could have catastrophic impacts on the population. However, the control of these installations is not covered by these provisions.

To address this shortcoming, I engage with other areas of international law, such as human rights law and international water law. I argue that they can contribute to the protection of water in time of armed conflicts, including through human rights instruments and mechanisms. Post-conflict human rights investigatory mechanisms such as the Commission of Inquiry on Lebanon and the Fact Finding Mission on the conflict in Gaza have dealt with the protection of water and electrical facilities. Besides, a panoply of international water agreements can protect water during and after armed conflicts. It is not uncommon to see watercourse States continue to apply them, and representatives of States in conflict often meet in joint mechanisms.

In addition, I explain that the rules of IHL should be interpreted by taking into account human rights law and international water law. Such a reading of the law can consolidate peace after armed conflicts. As water is particularly vulnerable to the impacts of armed conflicts, its protection should be reinforced by placing more emphasis on the similarities rather than the differences between norms found in instruments of international law. This will contribute to strengthening the protection of this natural resource in times when it is most at risk. A cumulative view of those norms is not only desirable, it is also consistent with a growing humanity-based framework used by courts, tribunals, and other international bodies, as well as by scholars, to reflect upon conflicts.

The entire article is available here.

Transboundary Offshore Aquifers: A Search for a Governance Regime

Monday, June 27th, 2016

The following essay by Renee Martin-Nagle is a summary of her recently published article entitled: Transboundary Offshore Aquifers: A Search for a Governance Regime, which appears in Vol. 1.2, 2016, pp. 1-79, of Brill Research Perspectives in International Water Law. Ms. Martin-Nagle is a PhD Researcher at the University of Strathclyde and a Visiting Scholar at the Environmental Law Institute. She can reached at renee.martinnagle [at] gmail.com.

In December 2013 an article appeared in Nature magazine describing aquifers lying under continental shelves around the world and containing fresh to slightly brackish water.  Entitled ‘Offshore Fresh Groundwater Reserves as a Global Phenomenon’, the article summarized scientific studies since the 1970s and suggested that the volume of water held in these offshore reserves could amount to twice the volume of groundwater withdrawn from aquifers globally since 1900.  Within days, the global press seized on the article and gleefully announced that the global water crisis had been solved.  Intrigued by the possibilities, I determined to understand the scientific support for such claims as well as the potential they held for supplementing existing freshwater supplies.  Moreover, I began to wonder what governance regime might apply in the likely event that one or more of these offshore aquifers straddled an international border  Since the topic of sharing transboundary offshore aquifers has not been addressed previously, there was no template to follow.  However, logic suggested that a governance regime for the these unique aquifers should be influenced by at least three current regimes: legal principles embodied in the UN Convention on the Law of the Sea (‘UNCLOS’), legal principles applicable to transboundary offshore hydrocarbon development, and legal principles that have evolved for transboundary land-based freshwater resources.

Global_Sumarine_Aquifers1My article begins with an explanation of the origins of offshore aquifers.  Not surprisingly, they were formed in the distant past, when meteoric and geological conditions were different than they are today.  During the last glacial maximum between 26,500 and 19,000 years ago, sea levels were much lower than they are today.  At that time the current continental shelves were actually part of the continental coastlines and were, therefore, exposed to rain and other meteoric conditions.  Over thousands of years, freshwater became entrapped between confining layers that were generated by the same natural processes that produced other land-based confined aquifers.  As glaciers melted and sea levels rose, the confining layers protected the now-offshore freshwater aquifers from saltwater intrusion.

With this background, the article proceeds to analyze three legal regimes in search of guidance on how these resources might be governed in transboundary circumstances.  It begins by looking at the UN Convention on the Continental Shelf (the precursor to UNCLOS) and its equidistant method for apportioning shared natural maritime resources among nations with adjacent and opposite coasts.  It then considers the assessment of the International Court of Justice in the North Sea Cases, which rejected the equidistant approach, urged nations to seek equitable solutions based on locally-specific facts and circumstances, and referenced the unity of a deposit. UNCLOS followed the ICJ guidance in advising nations to seek equitable solutions.

Global_Sumarine_Aquifers2Following the North Sea Cases, the oil and gas industry quickly filled the void by developing its own legal mechanism, which is the second regime assessed in my article.  Under that regime, and in harmony with the ICJ’s suggestion to preserve the unity of deposits, the industry utilized a system called unitization where parties sharing a resource appoint a single operator to exploit that reserve, with their respective shares being pre-determined in the applicable agreement.  The concept of unitization later evolved into joint development agreements where nations agreed on an operator for both exploration and exploitation of the resource.

The third regime considered in my study is the body of law that has developed for land-based groundwater resources.  While there are only four ratified treaties and several sets of guidance that address transboundary aquifers, certain concepts for land-based water have evolved to the point of representing accepted principles of customary international law.  Principles such as reasonable and equitable use, no significant harm, cooperation, and sharing of information have been enshrined in treaties for surface water and have also influenced principles for sharing hydrocarbon resources.

After examining these three bodies of law, I propose suggestions for a governance regime for transboundary offshore aquifers that incorporates the best aspects of each of them while still bearing in mind practical aspects of resource development.  Whether this regime will be needed in the near future remains to be seen. Nonetheless, by offering this analysis, I hope to begin the conversation and lay the groundwork for the time when offshore aquifers may be used to support existing freshwater supplies.

The entire article is available here.

 

Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?

Monday, May 16th, 2016

The following essay by Dr. Götz Reichert is a summary of his recent published article entitled: Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?, which appears in Vol. 1.1., 2016, pp. 1–111, of Brill Research Perspectives in International Water LawDr. Reichert is head of the Environment Department at the Centre for European Policy in Freiburg, Germany. He can reached at goetz.reichert [at] t-online.de.

Europe’s diverse aquatic environments continue to face pressure, often suffering from pollution, over-abstraction, morphological alterations, loss of biodiversity, floods and droughts. Throughout the European continent, 75 transboundary river basins have been identified. Given that over 60% of the European Union (EU) is covered by transboundary river basins and 70% of European catchment areas are shared between EU Member States and other European countries, pressures on rivers, lakes and aquifers constitute a considerable challenge to international cooperation. In Transboundary Water Cooperation in Europe, I analyze the multidimensional regime for the protection and management of European transboundary freshwater resources, which is composed of different but increasingly intertwined legal systems: international water law, water law of the European Union (EU), and domestic water legislation.

Götz Reichert, Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?, Brill Research Perspectives in International Water Law, Vol. 1.1., 2016, pp. 1–111

The emergence of this complex regime was triggered and facilitated by a general paradigm shift in water policy and law in the 1980s and 1990s towards an ecosystem-oriented approach, which is guided by the overall leitmotif of sustainable development and operationalized through the concept of integrated water resources management. It is based on the notion that the various components of the aquatic environment should be managed in an integrated manner throughout their natural catchment area, irrespective of administrative or national boundaries. Consequently, the different legal systems applying to transboundary freshwater resources in Europe are also increasingly interlinked and harmonized so as to function as an integrated whole. In order to shed light on the nature, fabric, and functioning of the resulting multidimensional regime, my article takes a closer look at its various dimensions.

Today, there are over 100 bi- and multilateral international agreements pertaining to rivers, lakes and aquifers in basins and sub-basins shared by riparian countries throughout the European continent, ranging from the two global framework conventions to basin-specific agreements. The first part of the article provides an overview of the origins, regulatory structure and main substantive and managerial elements of current international water law in Europe. It shows that the obligations of the EU, its Member States and other European countries, as parties to various international water agreements in Europe, function as “transmission belts” for the transposition of substantive and managerial provisions from international water law to EU water law and the domestic water legislation of EU Member States and other European countries.

Since 2000, however, the EU’s Water Framework Directive 2000/60/EC (WFD) has generated the defining impulses for the further development of the unfolding regime on transboundary freshwater resources in Europe. Most importantly, the WFD set the legally binding objective of attaining “good water status” by the end of 2015. Accordingly, the second part of the article provides for an accessible introduction to the unique legal nature and normative clout of EU water law, which is indispensable to understand transboundary water cooperation in Europe. It focusses on the main substantive and managerial elements of current EU water law relevant for cooperation between riparian countries, both within the EU and beyond. The pivotal instrument in this respect is the international river basin management plan, which is provided for by EU water law, but may be developed and implemented within international river commissions established under international water law. In this way, substantive and managerial provisions of EU water law are transposed to international water law in Europe.

Against the background of this hybrid interface between the different dimensions of the transboundary water regime in Europe, the third part of the article looks at the resulting integration of EU water law and international water law. Illustrated with examples of internationally shared river basins, such as the Danube and the Rhine, the analysis demonstrates that EU water law is, to a growing extent, influencing transboundary water cooperation not only within the European Union, but also beyond its territory.

Given the recently expired deadline for attaining the WFD’s objective of attaining “good water status” and the mixed results transboundary water cooperation has yielded so far, the article finally asks whether the elaborate and complex regime for the protection and management of transboundary freshwater resources in Europe is actually living up to its ambitious aspirations. In this respect, I suggest an optimistic conclusion. The different legal dimensions of the regime have the potential to fulfill those functions they are most capable of performing, thereby allowing for the development of solutions tailored to the particular needs of a specific freshwater ecosystem. EU water law has introduced a common vision, objective, terminology and managerial framework, thereby creating overall compatibility and complementarity within the regime. Furthermore, the normative clout of EU water law creates legally binding obligations for EU Member States and provides for robust enforcement procedures under judicial review. With regard to procedural and managerial aspects in a transboundary context, international river commissions established under international water law provide a stable institutional framework for the development of expertise, mutual trust and common approaches on transboundary water cooperation. On this basis, the multidimensional regime for the sustainable protection and integrated management of transboundary freshwater resources in Europe has the potential to be further developed in order to fulfill its goals.

The entire article is available here.

New Journal: Brill Research Perspectives – International Water Law

Friday, May 13th, 2016

Brill Research Perspectives – International Water LawIn April 2016, the publishing house, Brill, launched a new journal entitled Brill Research Perspectives – International Water Law (IWL Journal). The IWL Journal is a quarterly publication that targets monographs deemed too long for a typical journal article and too short for a book, typically in the range of 25,000 to 45,000 words. Thus, the IWLP Journal has carved out a niche that will not compete with other water journals, but rather provide in depth analysis of critical issues pertaining to international water law.

The Editor-in-Chief of International Water Law Journal is Dr. Salman M. A. Salman, who is a Fellow with the International Water Resources Association (IWRA). The editorial board consists of Professor Laurence Boisson de Chazournes, Professor Gabriel Eckstein, Professor Lilian del Castillo-Laborde, Professor Alistair Rieu-Clarke, Dr. Makane Moise-Mbengue, and Dr. Kishor Uprety. More information about International Water Law Journal can be found at: www.Brill.com/rpwl.

In an effort to disseminate widely the important articles that will be published in this journal, Brill and the International Water Law Project Blog have teamed up to present summaries of articles appearing in the IWL Journal as they are published.

The monograph for the first issue of IWL is authored by Dr. Gotz Reichert, and titled “Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?” An essay summarizing that inaugural article will be forthcoming on the IWLP Blog on Monday, 16 May 2016.