International Watercourses Research Articles

Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

Abstract International watercourses law, as primarily codified in the UN Watercourses Convention which reflects the basic principles of customary international water law, provides only a broad framework for states to follow. It does not explicitly address the trade-offs of water uses across multiple sectors, such as energy and food, and the interplay between water and sustainable development. These gaps could be filled by turning to policy frameworks such as the Water-Energy-Food Nexus (WEF) and the global development agendas, such as the Sustainable Development Goals (SDGs). This monograph argues that utilizing these frameworks in an integrated manner, could aid riparian states and non-state actors in the consideration of competing water uses, thereby helping to resolve tensions and promoting cooperation among concerned states, as demonstrated using the Zambezi River Basin as a case study.

China and the global water conventions in light of recent developments: Time to take a second look?

AbstractChina is an important yet often misunderstood upstream neighbour on many transboundary watercourses. In 1997, after participating in the drafting process of the United Nations Convention on the Law of the Non‐navigational Uses of International Watercourses, China, along with Burundi and Turkey, voted against the Convention. Since that time, however, both China’s practice and the law of international watercourses have evolved. In explanation of its vote, China provided four reasons including a lack of general agreement, that the Convention did not recognize sovereignty, that select provisions were imbalanced and disagreement regarding mandatory dispute settlement mechanisms. This article aims to revisit these reasons in light of recent developments and our current understanding of Chinese practice and international water law, asking the question: is it time for China to take a second look? Although China’s vote concerned the Watercourses Convention, given their complementarity, this article will discuss these reasons in relation to both global water conventions, the 1997 Watercourses Convention and the 1992 Water Convention.

Issues and Principles on Non-Navigational Use of International Watercourses

The concept of international watercourse has been used in many international conventions referring to a river and its tributaries and related canals crossing two or more countries. The notable ones include the Mekong River which crosses five states in the East Asia region and the Danube and Rhine rivers which cross 12 states in Europe. This article addresses relevant international principle which will justify the claims and counter-claims on non-navigational use of international watercourses. It justifies the conflicting parties’ demands on shared watercourses. Accordingly, this paper adopts the qualitative doctrinal analysis of the principle of reasonable and equitable utilization under the United Nations Convention on the International Watercourses (UNWC) 1997. Relevant provisions will be analysed and harnessed in addressing the respective conflict and weighing each argument of the conflicting parties. It is hoped that the utilisation of the available legal recourses will help strengthen the existing legal framework in solving conflict over non-navigational use of international watercourses.

International Policies and Conventions on International Rivers and the Rights of Ethiopia to Construct Dam on Nile River: The Case of the Great Renaissance Dam of Ethiopia

Sustainable transboundary water resources managements are challenged by water governance problem. Equitable and reasonable use of water resources shared by co-basin countries requires reliable common agreements. International water laws such as UN Watercourses (1997), Helsinki Rules (1966) have provided vital legal instruments for effective management and negotiation over international water courses. However, Nile River use and development has challenged for last several decades due to discriminatory bilateral agreements made during colonial periods. The Cooperative Framework Agreement (CFA) provided to achieve equitable use of Nile River and promote regional socioeconomic development is important step advancing to stop unfair water allocation and claim in the region. The enduring claim over water share and use by Egypt and Sudan referring colonial era agreements are unacceptable because they denied legal and natural rights of the upstream countries as well as opposed international water law. With this respect, Ethiopia has natural and legal right to construct Great Ethiopian Renaissance Dam. The downstream countries (Egypt and Sudan) should ratify CFA and respect international water laws. Therefore, mutually acceptable cooperative commitment amongst the riparian states of the Nile basin is the only necessary condition for promoting sustainable use and development Nile River as well as achieving peace and security in the Nile river basin. Keywords: UN Watercourses, Helsinki Rules, Nile River basin, downstream countries, international water law principles DOI: 10.7176/IAGS/83-02 Publication date: June 30 th 2020

Engaging non-state actors in the negotiation and implementation of international watercourse agreements: experiences and lessons learned from Canada

ABSTRACT Each nation-state has the discretion to decide whether, and to what extent, to engage ‘non-state’ actors in, and incorporate their interests into, the negotiation or implementation of international agreements. Through the prism of Canadian local governments along the Columbia River, we analyze some of the relevant practice in engaging non-state actors in the management of international shared watercourses. This article reviews the valuable role non-state actors can play in the negotiation and implementation of transboundary water agreements.

RELEVANT INTERNATIONAL LEGAL OBLIGATIONS DUE TO THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF WALLS AND REINFORCED FENCES

The aim of this paper is to analyse the main universal and regional environmental legal instruments applicable to the construction of defensive walls, as well as the international standards for the protection of living natural resources and certain shared resources, such as international watercourses. Additionally, as such actions can give rise to violations of conventionally protected environmental human rights, it will also examine the case law of the European and inter-American protection systems.

The International Legal Status of Marshes of Iraq as Protected Natural Areas

The wetlands of the Republic of Iraq, being a natural area of protection, have unique environmental, historical and cultural characteristics and are significantly different from the existing wetlands of the world. However, despite this status, they are exposed to numerous negative influences. The authors point to the most important international legal instruments aimed at preserving this unique territory of the Republic of Iraq, namely, the Ramsar Convention on Wetlands. The Government of Iraq is committed to fulfilling international obligations related to this convention and to overcoming the obstacles encountered in their implementation. The authors have examined the main international commitments, obstacles and the main priority lines developed by the Government of Iraq in order to overcome these obstacles. In particular, the problem of Water constraints has been considered in connection with the embankments built by the Islamic Republic of Iran, doing natural environment damage to the wetlands of Iraq and the attempts of the Government of Iraq to resolve the current situation, including the involvement of the Ramsar advisory mission. The mission was organized in mid-2017. The authors also provide relevant recommendations aimed at enhancing cooperation between Iraq and neighboring (coastal) states, and contributing to the reasonable and equitable use of a shared watercourse using the 1997 UN Convention on International Watercourses. The authors put high hopes on attracting international attention to the problems of relations between the Republic of Iraq and the Islamic Republic of Iran in the use of the Hawizeh marshes site.

The Law of International Watercourses, written by Stephen C MCCAFFREY

The Law of International Watercourses, written by Stephen C MCCAFFREY

The Legitimacy of Dam Development in International Watercourses: A Case Study of the Harirud River Basin

AbstractThis article examines the international legitimacy of unilateral dam development in an international watercourse from the perspective of international water law. Drawing upon technical analysis over the Harirud River Basin, the article discusses probable negative impacts of unilateral dam development in Afghanistan on downstream Iran and Turkmenistan. Competing claims are analyzed to assess emerging transboundary damage under customary international water law. Applying these insights to the case study, this article explores how legal norms and principles can contribute to transboundary water cooperation. It investigates how equitable and reasonable utilization, as required by the United Nations Watercourse Convention, could be reached and whether current activities are in conformity with international norms. Based on this analysis and in the light of international customary law, the article questions the compatibility of unilateral control and capture of water resources in Afghanistan, particularly through the Salma Dam, with ‘equitable and reasonable utilization’ and ‘no significant harm’ rules. The article also argues that building the Salma Dam results in significant transboundary harm to downstream states. Hence, such harm could be considered as significant transboundary damage. Conclusions point to an understanding of water law as a form of institutional guidance in order to provide a transparent setting for transboundary water cooperation among riparian states.

Notification concerning Planned Measures on Shared Watercourses

AbstractNotification of co-riparian states of planned measures on shared watercourses has been widely accepted as an established principle of international water law, and is codified and elaborated in the United Nations Watercourses Convention. However, despite this wide acceptance, issues have arisen in operationalizing notification, and in dealing with the different types of responses that may ensue following notification. The World Bank has been financing projects on international watercourses since its inception in the late 1940s, and has built an extensive wealth of policies and experience in this field. This monograph discusses the historical and legal foundations of notification under international law, analyses the policies and implementation experience of the World Bank thereon, and identifies comparators and synergies between the provisions of the Watercourses Convention and the Bank policies and practice.

International water law for transboundary aquifers –a global perspective

Today two global conventions, the Convention on the law of the non-navigational uses of international watercourses (1997) and the Convention on the protection and use of transboundary watercourses and international lakes are part of the available international legal framework for managing transboundary water resources. In addition to these two instruments, a specific text exists for transboundary aquifers: the Draft articles on the law of transboundary aquifers, annexed to two UN General Assembly resolutions on the topic. These three instruments apply to transboundary aquifers in different ways with differences in their scope, and numerous similarities in their principles. This paper will present the rules of international water law, as they apply to transboundary aquifers following from these instruments, with a specific focus on the draft articles.

Adapting Watercourse Agreements to Developments in International Law

AbstractThe United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention) recommends that states apply and adapt their watercourse agreements to the provisions of the UN Watercourses Convention. To explore the advantages of abiding to crucial developments in international water law, environmental law, and climate change law, this monograph will analyze the most important hydroelectric energy treaty in the South American region, the Itaipu Treaty. The monograph will argue that adapting watercourse agreements to developments in international law provides a way to foster sustainable development for the treaty parties, the countries sharing the watercourse ecosystem, as well as the international community as a whole.

Problems of formation of an international regime of the joint use and protection of international watercourses

The article is devoted to the problem of formation of modern international legal regime of joint use and protection of international watercourses that is aimed at effective provision of water to the States of international watercourse with due respect to new challenges and threats that have a negative impact on international water resources. The model is based on the concept of “international watercourse” that has the following features: 1) international watercourses include surface and ground waters; 2) a spatial and territorial criterion of an international watercourse that means crossing of the border between two or more States or being on their border; 3) the use of international watercourses affects the interests of two or more States; 4) the special international legal regime for the use of international watercourses that has developed within the framework of international law development; 5) special requirements for the protection of ecosystems of international watercourses that include protection from pollution and other forms of degradation of lands and forests adjacent to international watercourses, their fauna and flora; as well as seas into which watercourses flow; 6) a high conflict potential in the use of water resources of international watercourses. The analysis of the provisions of the doctrines of joint use and protection of transboundary waters shows that the formation of international water law should timely take into account human factors, technological and socio-economic changes. The modern international law model of the joint use and protection of international watercourses is a system of international legal norms regulating inter-state relations in the following areas: prevention, limitation and reduction of transboundary impact; protection of ecosystems of international watercourses; rational use of waters of international watercourses, effective management of water resources of international watercourses (including establishment and functioning of international basin organizations); information support of the population with regard to international watercourses.

The Interplay Between the Duty Not to Cause Significant Harm and Equitable and Reasonable Utilization Principle

States sharing freshwater resources have developed basic rules governing the use of these resources through their practice over many years. Some of the rules form part of customary international law, which is a body of unwritten law binding on all states. Countries sharing freshwater may also enter into treaties applying and adjusting rules of customary law to suit their specific situations with regard to the watercourses they share.' In contemporary state and institutional practice of none state actors, two doctrines have attained supremacy. The first entitles riparian states to exploit international watercourses in an equitable and reasonable manner. The second principle cautions states to take appropriate measures in the utilization of trans-boundary Rivers such that significant harm to the share of other watercourse states is averted. Today these two principles are indisputably regarded as cornerstones of the regime of international watercourses law. This note tries to look in to the duty not to cause significant harm and its interplay with the equitable and reasonable utilizations rule. The presentation will also explore lingering issues of preeminence between the two principles which may be crucial in understanding the full scope of riparian rights and obligations in the international water basin.

International watercourses, international water law and Central Asia

International watercourses are a very significant part of the water resources endowment of Central Asia (CA) where a “water-energy-agriculture nexus” has long been a conundrum. The crux of the conundrum is the conflict between upstream nation states wanting to release water in the winter to generate hydropower and downstream nation states wanting the water released in the summer largely for downstream agricultural purposes. Two CA states (Kyrgyzstan and Tajikistan) have a relative water surplus. Four other CA states (Uzbekistan, Kazakhstan, Turkmenistan, and Afghanistan) say they do not get their fair share from the region’s great rivers—the Syr Darya and Amu Darya—which slice across CA from the Tien Shan/Pamir Mountains and the Hindu Kush to the Aral Sea’s remains. This paper critically reviews the genesis of the CA water-energy-agriculture nexus conundrum, the role of international law in the possible resolution of the conundrum and a possible way forward. This way forward includes a redoubling of efforts by all CA states, including Afghanistan, to develop one, or more, legally binding CA wide international agreements regarding international shared water, and related, resources together with a high-level mediation to address possible downstream objections to new upstream hydro development projects.

Water conflict management and cooperation between Afghanistan and Pakistan

Managing water resource systems usually involves conflicts. Water recognizes no borders, defining the global geopolitics of water conflicts, cooperation, negotiations, management, and resource development. Negotiations to develop mechanisms for two or more states to share an international watercourse involve complex networks of natural, social and political system (Islam and Susskind, 2013). The Kabul River Basin presents unique circumstances for developing joint agreements for its utilization, rendering moot unproductive discussions of the rights of upstream and downstream states based on principles of absolute territorial sovereignty or absolute territorial integrity (McCaffrey, 2007). This paper analyses the different stages of water conflict transformation between Afghanistan and Pakistan. It first examines historical disputes between the upstream and downstream riparians, revolving around contending rights claims, resulting in zero-sum confrontations with one party’s loss as another’s gain, possibly ending in confrontation. The paper then formulates a decision support tool, a mechanism for transforming conflict into cooperation, and concludes by introducing practical methods for identifying basin needs and sharing benefits, enabling riparians to negotiate a win-win process.

Access to water in the context of the international watercourse: A theory of the community of interest

Securing free and equal access to water for individuals is foremost an objective of international water law. This article analyses the community of interest theoretical framework for the creation and implementation of rules that can achieve this objective. This theory is in line with the natural unity of the watercourse that traverses political borders between states. However, legal doctrine is not unanimous concerning its practical value, state practices largely evade it, and case law only provides declarative support without indicating precise contents of community rights and obligations. It seems that practical application of the community of interest theory is only possible through meticulous and systematic application of positive legal rules based on limited territorial sovereignty theory, in the spirit of joint management and use of common water resources.

Sustainable management of freshwater resources: Linking international water law and the Sustainable Development Goals

Ensuring the availability and sustainable management of water for all by 2030 is one of the Sustainable Development Goals (SDGs) adopted in 2015. Sustainable management of freshwater resources happens to be a purpose of international water law as well. This paper explains how the legal compliance mechanism of international water law and the extralegal compliance mechanism of the SDGs can be jointly harnessed to more compellingly encourage all states in the world to manage their freshwater resources in a sustainable way.This paper demonstrates how the extralegal compliance mechanism of the Sustainable Development Goals (SDGs), in particular as it is applied to sustainable freshwater management (SDG 6, 12, and 15), complements the legal compliance mechanism of international water law, thereby contributing to the resolution of one of the most pressing environmental problems in today’s world: the sustainable management of freshwater resources. The SDG targets, commitments, progress indicators, and reporting obligations relating to the sustainable management of freshwater resources are paired with provisions from the Law of the Non-navigational Uses of International Watercourses (UNWC) and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention). The main idea is that the above-mentioned treaties and the SDGs can strengthen each other’s compliance pull when paired in this way. The paper zooms in on the SDG targets and international water law provisions relating to 1. the sustainable management of freshwater resources, 2. the prevention of freshwater pollution, and 3. the protection and restoration of freshwater ecosystems.

STATE SUCCESSION AND INTERNATIONAL WATERCOURSES: THE ROLE OF THE 1978 VIENNA CONVENTION AND THE CASE OF GABČÍKOVO-NAGYMAROS PROJECT COULD PLAY

The existence of international watercourses in the territory where a secession phenomenon occurs brings with it important and specific legal problems related to the succession of States, which this paper deals with: in relation to the membership of international organizations; with respect to the succession of States in respect of State property; and, last but not least, with reference to the succession of States in respect of treaties, particularly in respect of international agreements on international watercourses. With regard to the latter, this paper analyses the argument given by the International Court of Justice in the Case of Gabcikovo-Nagymaros Project, and reviews the work of the International Law Commission for the purpose of the progressive development of International Law and its codification on the topic of the succession of States; in the hopes that by searching for rules and general principles, solutions could be found for other cases.

EL CONVENIO DEL AGUA DE LA UNECE: ¿UN INSTRUMENTO COMPATIBLE CON LA CONVENCIÓN DE 1997 PARA REGULAR LOS USOS DEL AGUA DULCE INTERNACIONAL? UN ANÁLISIS COMPARADO

The present work is a practical and applied comparative study of a generic aspect highlighted both in the preamble of the Universal Declaration of Human Rights, and in its text, this is cooperation for development among States and the right to a living condition with human dignity. In this regard, the management of international fresh water and environmental sustainability becomes an aspect of great importance, that will have an increasing incidence in future years. In this understanding, the main aspects of the two main international conventions, the 1992 Water Convention and the 1997 Convention that regulate both the uses of international watercourses for purposes other than navigation, are analyzedhere. To the extent of this coincidence, it seems necessary to specify the differences between them, especially when both are in force and open to the ratification or accession of more States. We will take as a basis the Water Convention (which was the last of the two to be internationalized and contains more detailed rules) and we will analyze its main provisions, observing the extent to which they diverge or are compatible with the provisions of the Convention of 1997, to conclude on this aspect and its consequences.