Use of Experts in International Freshwater Disputes: A Critical Assessment

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.

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