Inter-State Fresh Water Dispute Resolution: Some Reflections on River Basin Organizations as Arbitral Institutions

Abstract

Over 330 fresh water-related disputes have been recorded between 1900 and 2017, many concerning resources that cross state boundaries.1 These inter-state fresh water disputes tend to involve complex legal, political, and scientific issues and, left unresolved, may deteriorate to violent conflict. Such deterioration has occurred in the case of the Jordan River dispute between Syria and Israel, the Senegal River dispute between Mauritania and Senegal, the Nile River dispute between Egypt and Sudan, and the Euphrates-Tigris River dispute between Turkey and Syria, to name just a few.2 The fact that fresh water resources are increasingly under stress while human dependency on them continues to grow suggests that disputes between states over such resources will likely continue to arise in the future.3 Yet ‘[s]cholars on water cooperation have paid insufficient attention to the significance of conflict resolution to effective transboundary water management.’4 In order to facilitate such resolution, Article 33 of the Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention)5 provides states with a variety of dispute resolution mechanisms, both non-binding and binding.6 Non-binding mechanisms, which tend to be used most frequently by states, include bilateral negotiation, mediation,7 good offices,8 conciliation,9 and fact-finding.10 However, these mechanisms are not always successful in resolving inter-state fresh water disputes.11 Disputing states suffer from ‘imperfect knowledge of the functioning of [their shared fresh water] systems,’ limited data, ‘assumptions as a substitute for knowledge and data,’ and the general subjectivity of hydrological observations,12 all of which limit the prospects of bilateral negotiations providing an effective and lasting solution to inter-state fresh water disputes. Indeed, ‘working out their troubles on their own or shaking hands and getting along may work occasionally, but most of the time the conflict will only be sent underground to resurface later in more destructive ways.’13 Efforts to use mediation, good offices, and conciliation in the resolution of inter-state fresh water disputes have had mixed results. Some were successfully resolved—for instance, the World Bank’s mediation in the Indus waters dispute between India and Pakistan, which led to the signing of the 1960 Indus Waters Treaty.14 In other disputes, however, such as the Jordan River dispute between Israel and its neighbours, mediation attempts have failed.15 Fact-finding, while explicitly set out in some detail in the Watercourses Convention, has not been frequently used by states for the resolution of fresh water disputes.16