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

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.

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.

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.

 

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.

 

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.

 

Shared Water Resources in West Africa – Relevance and Application of the UN Watercourses and the UNECE Water Conventions

Monday, April 16th, 2018

The following essay by Nwamaka Chigozie Odili is a summary of her recently published monograph (under the same title), which appears in Vol. 3(1) 2018, pp. 1-98, of Brill Research Perspectives in International Water Law. Mrs Nwamaka Odili is a Legal Officer with Federal Ministry of Justice, Abuja, Nigeria. She can be reached at amaka142 [at] yahoo.com.

 

West Africa has twenty-five shared watercourses but only six of them are governed by legal instruments. Yet, the region, like the rest of the world, is exposed to water-related stress due to the impacts of climate change, urbanization, and overpopulation. This position results in abundance of fresh water in some countries of the region and limited or scarce availability of the resource in others. The need for a regulatory framework for managing all the region’s transboundary watercourses, therefore, cannot be overemphasized. Although the principles of customary international law apply in all cases whether there are regulatory instruments or not, treaties create obligation that are needed to strengthen the international water law system. Global framework treaties like the UN Watercourses Convention and the UNECE Water Convention provide the needed support through universal norms ‘to shape the content of instruments adopted at the regional and basin level’ (Laurence Boisson de Chazournes, ‘Freshwater and International Law: the Interplay between Universal, Regional and Basin Perspectives’ (Paris, UNESCO, 2009) at 5).

Transboundary Watercourses in West Africa

Regulated

 

Transboundary WatercourseRiparian States
Niger River BasinNigeria, Niger, Burkina Faso, Côte d’Ivoire, Benin, Cameroun, Guinea, Mali, Chad
Lake Chad BasinCameroun, Nigeria, Chad, Central African Republic, Niger, Libya
Volta River BasinGhana, Burkina Faso, Benin, Togo, Côte d’Ivoire and Mali
Senegal River BasinSenegal, Guinea, Mali, Mauritania
Gambia River BasinGambia, Guinea, Guinea Bissau, Senegal
Koliba-Korubal River BasinGuinea and Guinea Bissau

Non-Regulated

 

Transboundary WatercourseRiparian States
Cross River BasinNigeria and Cameroon
Akpa Yafi River BasinNigeria and Cameroon
Queme River Basin Nigeria and Benin
Tano River BasinGhana and Côte d’Ivoire
Komoe River BasinCôte d’Ivoire, Ghana and Burkina Faso
Atui River BasinMauritania and West Sahara
Mono River Basin Togo and Benin
Bia River BasinGhana and Côte d’Ivoire
Sassandra River BasinGuinea and Côte d’Ivoire
Cavally River BasinCôte d’Ivoire, Guinea and Liberia
Cestos River BasinCôte d’Ivoire, Guinea and Liberia
St John River BasinLiberia and Guinea
St. Paul River BasinLiberia and Guinea
Loffa River BasinLiberia and Guinea
Mana Morro River BasinLiberia and Sierra Leone
Moa River BasinLiberia, Sierra Leone and Guinea
Little Scarcies River BasinSierra Leone and Guinea
Great Scarcies River BasinSierra Leone and Guinea
Geba River BasinGuinea Bissau, Guinea and Senegal

Since adoption of the General Act of Berlin in 1885, which dealt, inter alia, with the Niger River, more agreements have been contracted for the management of some of the shared watercourses in West Africa, particularly in the post-colonial era. Hence, West Africa contributed through these agreements to the development of international water law prior to the adoption of the UN Watercourses Convention and the UNECE Water Conventions in the 1990s. Initial instruments dealt primarily with navigation, while later agreements addressed the need for co-operation and incorporated other principles of customary international water law. The two conventions, no doubt, have influenced this trend such that water regimes in the region improved over time. This raises the question: do riparian states in West Africa need to be parties to either or both water conventions to enhance management, sharing and protection of their shared watercourses?

The influence of the UN Watercourses Convention in the region is established because water regimes implemented after adoption of the UN Watercourses Convention reflect some of its substantive and procedural provisions. Moreover some countries in West Africa are parties to the Convention. On the other hand, influence of the UNECE Water Convention in the region is limited and its potential benefits have yet to be determined. Article 25 and 26 of the UNECE Water Convention were amended to allow non-UNECE states that are members of the United Nations to become parties to the Convention. However, its mandatory provisions regarding basin organization and compliance with its stringent requirements, details, and tasks necessitates significant foreseeable financial and technical resources, which countries in West Africa now lack.

Although most West Africa water instruments are flawed by loopholes and there is need to address the problems generated by unregulated shared watercourses in the region, West Africa nations do not need to be contracting parties to both the UN Watercourses Convention and the UNECE Water Convention. What West Africa needs is a treaty position that accommodates the reality of the management of its transboundary water resources. Adoption of global treaties by the states of West Africa is not sufficient because the universal law in those treaties needs to be complemented by regional or basin agreement for realistic implementation. The important issue is not which global convention the states belong to, but rather how strong and efficient transboundary water resources management in the region has grown over time. To achieve this goal and to further address major gaps and failings in transboundary water resources management in West Africa, states in the region could negotiate a region-based water treaty to reflect the needs and concerns of the region and supplement it with basin-specific treaties.

The entire article is available here.

 

Inter-State Water Law in the United States of America: What Lessons for International Water Law?

Monday, September 25th, 2017

The following essay by Professor Rhett Larson is a summary of his recently published monograph (under the same title), which appears in Vol. 2.3, 2017, pp. 1-82, of Brill Research Perspectives in International Water Law. Professor Larson is a Professor of Law at the Arizona State University School of Law. He can be reached at Rhett.Larson [at] asu.edu.

 

John Wesley Powell was an 19th Century explorer of the western United States. In a report to the U.S. Congress, Powell recommended that the borders of future western states be based on watersheds and warned of the risks associated with political subdivisions sharing transboundary waters. Congress ignored Powell’s advice, and established western state boundaries with many inter-state waters traversing and, in some cases forming, sub-national borders. As a result, and as I discuss in my recent monograph published in Brill Research Perspectives on International Water Law, the United States has a long and colorful history of transboundary water management that provides both encouraging lessons and cautionary tales for international water law.

For example, the common law doctrine of “equitable apportionment” developed by the U.S. Supreme Court in cases involving its original jurisdiction over inter-state water disputes is similar in many respects to the principle of equitable and reasonable utilization embodied in Articles 5 and 6 of the U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses ( “Watercourse Convention”).

RhettLarson-Inter-State_Water_Law_in_the_USBeyond the obvious use of the word “equitable” in the articulation of both the inter-state doctrine and the international doctrine, the factors set forth by the U.S. Supreme Court in determining equitable apportionment are similar to the factors laid out in Article 6 of the Watercourse Convention in determining equitable utilization. The U.S. Supreme Court considers “physical and climatic conditions,” and international law considers “[g]eographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character.” The U.S. Supreme Court considers consumptive uses, while the Watercourse Convention includes considerations of the “effects of the use or uses of watercourses.” The U.S. Supreme Court considers wasteful uses, and the Watercourse Convention includes considerations of conservation options.

Despite these similarities, the U.S. doctrine of equitable apportionment and the factors included in determining reasonable and equitable utilization under the Watercourse Convention have differences that are important to note for what each doctrine may learn from the other. The Watercourse Convention expressly includes consideration of population, which seems an obvious factor missing from inter-state water law. The Watercourse Convention also considers both existing and potential uses of the watercourse, while the U.S. doctrine of equitable apportionment considers only “consumptive uses,” not necessarily potential future uses. It might also be helpful for the U.S. doctrine of equitable apportionment to expressly factor in ecological considerations in a way similar to the Watercourse Convention, because those considerations may not always be adequately captured by the concept of waste embodied in the U.S. law.

On the other hand, the U.S. equitable apportionment doctrine includes a cost-benefit analysis consideration that could be a helpful factor to evaluate equitable utilization in international water law. Additionally, the consideration of the character and rate of return flows under U.S. inter-state water law may also be a helpful factor to include in determining equitable utilization in international water law.

In Bean v. Morris, an early equitable apportionment case before the U.S. Supreme Court, the Court identified an important factor when evaluating inter-state water allocations that could be incorporated into international equitable and reasonable utilization analysis. States in the U.S. typically rely on one of two legal regimes for allocation rights to water. The approach to water rights in eastern states is generally common law riparian rights based on English and Roman laws, under which rights are apportioned to owners of property abutting water bodies based on the requirement that uses be reasonable. The approach to water rights in western states is generally prior appropriation, with water rights based on a first-in-time, first-in-right scheme, subject to beneficial use requirements and the prohibition against waste.

Neighboring U.S. states sharing transboundary waters can therefore have dramatically different approaches to allocating water rights and different policy aims in water management. These differences have aggravated inter-state water disputes over transboundary waters. The U.S. Supreme Court, in an early equitable apportionment case, sought to mitigate the impact of, if not reconcile, these different approaches to water rights. In Bean v. Morris, the Supreme Court held that it would apply principles of prior appropriation when allocating water between states that recognize prior appropriation as their own internal water rights system.

International water law could similarly look to using domestic water law principles held in common between two nations sharing a watercourse as a factor in the evaluation of reasonable and equitable utilization. Such an approach would be a more targeted application of Article 38(1)(c) of the International Court of Justice’s statute authorizing reliance on “general principles of law recognized by civilized nations” in resolving international disputes. Nations are perhaps more likely to view such a factor as reasonable and equitable if based on domestic laws already accepted and legitimized under their respective domestic laws.

Other potentially helpful lessons from U.S. inter-state water law for international water law may include the use of special masters to facilitate dispute resolution and the recognition and quantification of water rights held by indigenous peoples. Cautionary tales for international water law from U.S. inter-state water law include the inter-state problems created by the bifurcation of groundwater and surface water rights, and the over- or under-empowerment of basin-level, inter-jurisdictional commissions. Many countries with federal structures, like the United States, have been dealing with inter-jurisdictional water disputes for generations, and therefore could be fertile ground for cultivating ideas for reform in international water law.

The entire article is available here.

The Fairness ‘Dilemma’ in Sharing the Nile Waters: What Lessons from the Grand Ethiopian Renaissance Dam for International Law?

Friday, June 30th, 2017

The following essay by Dr. Zeray Yihdego is a summary of his recently published monograph (under the same title), which appears in Vol. 2.2, 2017, pp. 1-80, of Brill Research Perspectives in International Water Law. Dr. Yihdego is a Reader in public international law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego [at] abdn.ac.uk.

The Nile, the longest River in the world, is shared by eleven riparian states, including Egypt, Sudan, South Sudan and Ethiopia.  Ethiopia contributes about 86% of the Nile waters, while Egypt (and to a certain extent Sudan) rightly or arbitrarily use most of the waters. Rightly because the climate and dependency of the two downstream countries on the Nile may be used to justify their historic or existing (lion) share. Arbitrary because other riparian states with millions of people who live within the basin are denied their equitable share of Nile water resources and socio-economic development needs. The construction of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia on the Blue Nile is justified by Ethiopia based on equitable utilisation and crucial development needs, while questioned (until March 2015) by Egypt as a threat to its ‘historic’ water use rights.

This monograph articulates the key arguments and messages of enquiring into the fairness dilemma in connection with the construction, reservoir filling, and to some extent, future operation of the GERD, in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international water law.

Nile_Map_UpdatedAfter providing factual, political and historical context to the GERD case in the Introduction, the monograph sets out the theoretical and normative framework around Thomas Franck’s fairness principle, and international water law (IWL), as primarily featured in the 1997 United Nations Watercourses Convention (UNWC). Franck’s theory of fairness uses procedural legitimacy (or right process) and distributive justice as two fundamental features of fairness.  These are supported by the rejection of making absolute claims and the possibility of accommodating inequality among states, as caveats to the fairness principle. It is argued that IWL, in general, and the UNWC provide rules and principles that specifically fit into the principle of fairness in all its aspects, although there is no evidence to suggest that inequality is tolerated or promoted in international (water) law.

Given that none of the Nile basin states is a party to the UNWC, and notwithstanding the relevance and application of customary international water law to the GERD, the monograph resorts to dealing with the Nile Basin Initiative and the Nile Basin Cooperative Framework Agreement (CFA), and argues that the CFA, either as a treaty regime or a codification of customary watercourses law, represents an emerging Nile basin legal framework with a potential to addressing questions of fairness in the basin. As the CFA has not entered into force and Egypt and Sudan do not constitute part of the process, however, the fairness of the GERD cannot be judged form the CFA perspective.

Following a thorough investigation of the fairness of the 1902 Nile Treaty, the 1993 Ethio–Egyptian Framework instrument, and the tripartite Declaration of Principles (DoPs) on the GERD signed by Ethiopia, Sudan and Egypt in March 2015, the monograph submits that the 1902 and 1993 instruments do not provide a fair content and system for the concerned parties, albeit for different reasons. While the 1902 Nile Treaty is inherently arbitrary, and thus not compatible with the notion of fairness, the 1993 instrument incorporated modern principles of IWL, but not sufficiently, and lacks specificity of rights and duties of the two countries.  In contrast, the DoPs is founded on the globally accepted principles and rules of IWL and has

Grand Ethiopian Renaissance Dam

Grand Ethiopian Renaissance Dam

embraced both relevant content and legitimate process. The content of the DoPs includes the adoption of equitable utilisation and no significant harm principles. Similarly, the process agreed to in the DoPs includes the duty to exchange data and information, establishment of a National Technical Committee, the use of foreign consultancy firms and the use and endorsement of the work of an International Panel of Experts (IPoE).  All these, although not without challenges, have been negotiated in good faith, with equal participation of all concerned.

Based on this analysis, the monograph submits that:  the GERD is a symbol of a fair share of the Nile waters, the realization of which depends on, inter alia, an appropriate economic return and prevention of significant impacts; although application of the fairness principle can be complex, the notions of procedural fairness and distributive justice can be applied to define and delineate the principle with reference to a specific treaty regime; despite historical or existing injustice, a fair share of natural resources can bring sustainable and durable peace in inter-state relations.

The entire article is available here.

 

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.