Swimming Against the Current: Revisiting the Principles of International Water Law in the Resolution of Fresh Water Disputes

Abstract

Demands for fresh water are rising around the world, its availability is increasingly unpredictable, and it is unequally distributed across political boundaries. As a result, disputes between states over the use of shared fresh water resources are increasingly likely to arise. This Article addresses the need to resolve these disputes peacefully and the ability of international water law to facilitate such resolution. Specifically, the Article proposes a reconfiguration of the two core principles of international water law — “equitable and reasonable utilization” and “no significant harm.” The former principle suggests that states sharing fresh water resources should do so in a manner that is fair and equitable, while the latter suggests that they must do so in a manner that avoids or minimizes significant harm. The Article traces the evolution of these principles and examines their conceptual underpinnings. It observes that the relationship between the two principles remains unsettled and they may therefore frustrate, rather than facilitate, the resolution of interstate fresh water disputes. The Article proceeds to challenge the most commonly held views in the international water law literature regarding the interrelationship and application of these principles. One such view contends that “equitable and reasonable utilization” should be the governing principle of international water law and treats harm as merely one factor to consider in any given use of shared fresh water. Another view asserts that the two principles complement each other and should be applied in tandem. In contrast, this Article argues that “no significant harm” is the superior principle, both in theory and in practice, and should therefore guide the resolution of interstate fresh water disputes. From a theoretical standpoint, the Article explains how the due diligence standard of the “no significant harm” principle and its reciprocal goal of harm prevention enable it to balance states’ competing interests in the use of shared fresh water resources. The Article then examines the actual use of both principles in previous interstate fresh water disputes submitted to arbitration and judicial settlement. Its findings lend further support to the proposition that, notwithstanding the visceral appeal of “equitable and reasonable utilization,” states should use the “no significant harm” principle to guide the resolution of their fresh water disputes. The Article concludes with the application of “no significant harm” as a guiding principle to the ongoing Nile River dispute between Ethiopia and Egypt.