Artificial Waterways in International Water Law: An American Law Perspective

Abstract

Freshwater ‎is a fleeting natural resource that can never be fully harnessed or ‎appropriated by humans. It evaporates from the sea and land, is drawn into the atmosphere, ‎falls as rain and snow, sinks into the earth to reappear in watercourses, and then drains back ‎into the sea.‎ Nonetheless, under both domestic and international law, freshwater is a regulated ‎resource and legal principles have developed to govern its allocation and use. But what of ‎freshwater that, rather than flowing naturally, has been made to ‎so flow by human intervention? Should manmade canals, for instance, be subject to the same ‎legal principles that govern the ownership and use of naturally occurring rivers?‎ In this article, I take a first step toward clarifying when and how international water law ‎principles applicable to natural transboundary waterways should be applied to artificial ‎transboundary waterways. ‎While I focus on artificial waterways in the transboundary context, I approach the issue ‎from a domestic water law lens. ‎I suggest that general insights may be drawn from the experience of domestic courts in solving ‎water-related problems that exist also at the international level but that international law does ‎not currently address. ‎Specifically, I examine the treatment of artificial waterways in American water law as a case study. In Part 1 of the article, I discuss artificial waterways in the international context, ‎examining international court decisions, treaties and other cross-border regimes relevant to the ‎regulation of transboundary artificial waterways.‎ I conclude that there is no uniform ‎approach in international water law to the treatment of transboundary artificial waterways. In ‎Part 2, I turn to American water law, examine the legal definition of artificial waterways, and ‎identify two basic principles that have guided American courts in determining the legal status ‎of such waterways: the physical attributes of the artificial waterway and whether it has legally ‎‎“become” a natural watercourse.‎ ‎In Part 3, I suggest that these two principles could also ‎inform the regulation of transboundary artificial waterways and the resolution of disputes ‎arising from their use, and apply them to the Silala case currently before the ICJ. In Part 4, I ‎offer brief conclusions.