Law Of International Watercourses Research Articles

When the law is unclear: challenges and opportunities for data and information exchange in the Tigris-Euphrates and Indus river basins

Abstract Data and information exchange are vital for long-term transboundary water cooperation. However, many transboundary river basins lack regular data exchange between riparian States. In many cases, this is simply a feature of the generally fragmented nature of transboundary water cooperation; in others, transboundary river basin data sharing may be withheld for geopolitical reasons. The Tigris-Euphrates and Indus river basins are among the most highly politicized river basins globally. Cooperation between riparians is complicated by a lack of certainty regarding data, information exchange and legal obligations, as upper riparians in both basins have persistently objected to the customary law of international watercourses. With reference to international water law, this article ascertains the level of data and information exchange in these two basins, both through formal and informal structures, as well as prevalent obstacles and the institutional and technological responses to them. Despite significant challenges, the authors argue that technological advances can stimulate enhanced riparian cooperation.

Reciprocity and China’s Transboundary Waters: The Law of International Watercourses, written by David J Devlaeminck

Reciprocity and China’s Transboundary Waters: The Law of International Watercourses, written by David J Devlaeminck

Softness in the Law of International Watercourses: The (E)merging Normativities of China's Lancang-Mekong Cooperation

AbstractThe law of international watercourses consists mainly of a series of bilateral, multilateral, regional, and global agreements that establish binding rules through which state parties jointly manage transboundary water resources. China similarly manages its shared freshwaters through a series of bilateral agreements. Increasingly, however, it relies on non-binding soft law instruments to manage these resources with its riparian neighbours. An important example of this is the Lancang-Mekong Cooperation, a branch of the Belt and Road Initiative. Its use of soft instruments, which recognize international law and promote projects, displays evidence of merging and emerging normativities, ensuring that it is capable of playing both a supporting and a developmental role in the law of international watercourses.

The Ilisu Dam and Its Impact on the Mesopotamian Marshes of Iraq: Implications for the Future Directions of International Water Law

Abstract The law of international watercourses has been successful in providing some measure of assistance in conflict avoidance and resolution. However, evolution of this body of law, which has been gradual in nature, is facing challenges adapting to climate change and its grave consequences. Climate change is causing the glaciers of the world to melt, and resulting in unpredictable shifts in patterns of rainfall, thus seriously impacting shared watercourses. The history and ecology of the Tigris Euphrates Basin, and the issues surrounding Turkey’s recent impoundment of water behind the Ilisu Dam on the Tigris, provide an example highlighting such challenges. This monograph argues that international collaboration over transboundary watercourses is imperative for maintaining peace and stability and should force us to think of new ways to address these newly emerging and growing challenges in this field.

The Dispute over the Status and Use of the Waters of the Silala case and the customary rules on the definition of international watercourse

The International Court of Justice is to determine, in the Dispute over the Status and Use of the Waters of the Silala case, the international status of the waters in question by customary rules of international law. In its identification of the existence and contents of the applicable rules on the definition of international watercourse, the Court may refer to the United Nations Watercourses Convention, other international instruments, State practice and international jurisprudence. The decisive fact for finding an international watercourse is that the components of the watercourse are situated in two or more States. Difficulties may lie in the determination of the components of the watercourse and their physical relationships. The Court may have to decide whether the status of waters can be altered by artificial means by certain general principles of the law of international watercourses.

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.

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.

The Law of International Watercourses, written by Stephen C MCCAFFREY

The Law of International Watercourses, written by Stephen C MCCAFFREY

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.

The Legal Principle of Reciprocity and China’s Water Treaty Practice

AbstractThe legal principle of reciprocity plays a strong role in the law of international watercourses in both bilateral and multilateral contexts. China, primarily an upstream state, shares transboundary rivers with 14 neighbouring states. These shared rivers are governed by a variety of treaties and soft law documents, with China preferring to take a bilateral approach. Building on previous research, this article aims to elaborate on the role that reciprocity has played in the development, maintenance and interpretation of the law of international watercourses and then applies this to China’s transboundary water treaties. For these purposes, this analysis focuses on China’s approach to sovereignty on its transboundary waters and the substantive, procedural and dispute settlement rules of China’s transboundary treaties, as well as future developments, including the influence of the concept of ‘common interests’ on China’s practices. There have been significant developments in China’s transboundary water cooperation, as transboundary waters are increasingly important for China’s development. The article concludes with the example of the China-led Lancang-Mekong Cooperation Mechanism, highlighting its reciprocal characteristics and pathways for future development.

The Codification of the Law of International Watercourses: the draft articles adopted by the International Law Commission

1. Introduction.- 2. Background and overview of the ILC Draft Articles: A) Background of the ILC work on international watercourses; B) Survey of the Draft Articles adopted in 1994 by the ILC.- 3. The scope of the Draft Articles: A) The definition of imernational watercourse; B) The probiem of transboundary confined groundwaters.- 4. The general principies: A) The principie of equitable utilization; B) The obligation not to cause significant harm; C) The relationship between the equitable utilization and the duty not to cause significant harm.- 5. The protection of international watercourses: A) Protection and preservation of ecosystems; B) Prevention, reduction and control of pollution.- 6. Conclusions.

Measuring Transboundary Water Cooperation within the Framework of Agenda 2030: A Proposal for a Revision of SDG Indicator 6.5.2

Resolution A/RES/70/1 entitled Transforming our world: the 2030 Agenda for Sustainable was adopted by the United Nations General Assembly (UNGA) on 25 September 2015 and included a set of 17 Sustainable Development Goals (SDGs), developed to replace the previous 8 Millennium Developments Goals (MDGs), their timeframe having just ended. One of the focuses of these SDGs was to address certain shortcomings of the past MDGs, by adopting a more comprehensive, governance and peace-building oriented, approach. It is noteworthy that for the first time a water and sanitation-dedicated Goal (SDG 6) was adopted, aimed at ensuring availability and sustainable management of water and sanitation for all. It is even more remarkable that one of its Targets (Target 6.5) is specifically dedicated to implementing integrated water resources management (IWRM) at all levels, including through transboundary as appropriate. Progress towards Target 6.5 is to be measured through two Indicators defined as the degree of IWRM implementation (0-100) (Indicator 6.5.1), and the proportion of transboundary basin area with an operational arrangement for water cooperation (Indicator 6.5.2). SDG Indicator 6.5.2 emphasizes the importance of the law of international watercourses, by using arrangements as a measurement of transboundary and therefore acknowledging the role legal instruments play in the protection, preservation and management of transboundary freshwater resources. While the establishment of an indicator on transboundary water is most opportune and promising, its formulation and calculation raises some technical, scientific and legal questions. It is the legal questions that I am attempting to address in this paper. After an overview and preliminary assessment of SDG Indicator 6.5.2's reporting mechanism, this article will provide supporting arguments for an adaptation of Indicator 6.5.2 and will offer a proposal for an adjustment of Indicator 6.5.2, ahead of the upcoming 2020 revision of the SDG Indicators conducted by the Inter-agency and Expert Group on SDG Indicators (IAEG-SDG).

Revisiting the substantive rules of the law of international watercourses: an analysis through the lens of reciprocity and the interests of China

Abstract The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997, finally entered into force in August 2014 after nearly 17 years. To explain this delay scholars point to, among other reasons, misconceptions of the substantive rules of equitable and reasonable use and the duty not to cause significant harm, particularly between upstream and downstream states. Reciprocity plays an important role within international law especially in treaties, where it informs the distribution of rights and duties, advantages and disadvantages, establishing balance and fairness in the legal regime. Together, this ensures that states cannot interpret treaty provisions in their favour. Using the Convention on the Law of the Non-Navigational Uses of International Watercourses as an authoritative text, this article aims to analyse the substantive rules of international law concerning transboundary water resources including equitable and reasonable use and the duty not to cause significant harm through the lens of reciprocity and the interests of China. In doing so, it aims to provide a more nuanced understanding of the rules and to establish that these principles do not favour upstream or downstream states, but instead promote balance among riparians.

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

This monograph enquires into the fairness dilemma in connection with the construction of the Grand Ethiopian Renaissance Dam (gerd) in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international watercourses law. Thegerdis now afait accompli, but fairness considerations will continue to be vital issues in its completion, filling, and operation. The monograph argues that thegerdis a symbol of a fair share of the Nile waters by Ethiopia, the realization of which depends on,inter alia, an appropriate economic return, benefit sharing and prevention of significant impacts. The monograph also calls for a process to address the issue of unfair agreements, and argues that, although fairness application 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.

International Law and Sustainable Development: Lessons from the Law of International Watercourses

Implementing the goal of sustainable development has long been heralded as the means by which the needs of both present and future generations can be met. However, finding a long-term balance between economic, social and environmental interests, the basic tenet of sustainable development, has proved largely illusive in practice. This book shows that while a number of legal frameworks to help promote the goal of sustainable development have been proposed at the international level they fail to fully capture the essence of sustainable development and international law's capacity to support its implementation. The book offers a critical analysis of past attempts to develop legal frameworks for promoting sustainable development at the international level, and advocates for a fresh approach based on lessons learnt from the law of international watercourses. The book is divided into four sections. The first section includes an overview of the topic area and an understanding of international law. In section two the book explores the meaning of sustainable development and considers the term's relationship with international law. A detailed analysis of how the law of international watercourses seeks to reconcile competing economic, social and environmental interests is carried out in section three. The book concludes with a section advocating the need for a fresh approach to international law and sustainable development and offering the foundations for this approach based on lessons learnt from the law of international watercourses.

Anglo-Ethiopian Treaty on the Nile and the Tana Dam Concessions: A Script in Legal History of Ethiopia’s Diplomatic Confront (1900-1956)

In hydro-political context, while Ethiopia had been able to propel its own canoe in the first half of the 20th century, a blend of factors worked in concert to deprive it of any meaningful prospect in the utilization of the Nile water resources within its jurisdiction. I argue that the Anglo- Ethiopian Treaty of 1902 on the Blue Nile and the stream of negotiations conducted in the immediate aftermath on the grant of Lake Tana Dam concessions have engendered deleterious impacts on the legal position and sovereign interests of Ethiopia. Ethiopia’s imperial vacillation was vexatious, and British hegemonic designs of the time leaned too heavily towards Sudan and Egypt. As a result, the post-1950 period witnessed a waning influence of Ethiopia’s hydro-legal posture and the molding of deeply engrained perceptions of proprietorship along the downstream Nile. Key terms :Ethiopia, Great Britain and the Nile Treaty (1902), Sudan, Egypt, the Lake Tana Dam negotiations, international watercourses law, water diplomacy on the Nile

Unravelling Cooperation: The Role and Limits of Cooperation in the Governance of International Watercourses

Fresh water is one of the most fundamental natural resources on the planet for human beings as well as ecosystems more generally. This thesis explores ongoing efforts in international law to govern international watercourse systems more effectively. These efforts have been given recent impetus by the long-awaited entry into force in August 2014 of the first global, comprehensive treaty governing international watercourses – the 1997 United Nations Watercourses Convention (UNWC). The UNWC largely reflects customary international law and given that the UNWC still only has thirty-five State parties, custom continues to play an important role in the governance of many major international watercourses.This thesis focuses on the central notion of cooperation in the field of customary international watercourses law. It first highlights the prominence of the vague, multi-layered and contested concept of cooperation and attempts to unpack it. In doing so, it identifies four distinct manifestations of cooperation and reveals the special emphasis the literature has placed on the fourth manifestation: specific procedural obligations of cooperation.This thesis ultimately applies the assertions made in the literature about the binding and effective nature of customary rules of cooperation to a current case study: a dispute between Ethiopia and Egypt over the construction of the Grand Ethiopian Renaissance Dam on the Nile River. Through this case study, this thesis posits that the specific obligations of cooperation identified (notably notification and consultation) sit uneasily in customary international law. Lingering uncertainty about the content of such obligations, in both the literature and by relevant States themselves, highlights the importance of codifying and institutionalising rules of cooperation, so crucial to watercourse management, in order to improve their overall effectiveness.

International Water Cooperation in the 21st Century: Recent Developments in the Law of International Watercourses

This article surveys selected recent developments in the field of the law of international watercourses. One of the most significant developments concerns the Partial Award rendered by the Court of Arbitration in the Indus Waters Kishenganga Arbitration between Pakistan and India. While the questions presented to the Court concerned whether a dam being constructed by India was consistent with the 1960 Indus Waters Treaty, the Court interpreted the Treaty to find that India had environmental obligations regarding the operation of the dam. This award could well influence the positions of other governments as well as disputes between them. Another development of interest concerns the human right to water and its implementation. Perhaps paradoxically in view of their greater economic strength, opposition to the right has come most notably from developed countries. A third development concerns the law of transboundary aquifers. The draft articles on this subject prepared by the International Law Commission give prominence to the ‘sovereignty of aquifer States' and overlap with the 1997 Watercourses Convention. They would thus require significant modification if the negotiation of a treaty were to be based upon them. Finally, two treaties on international watercourses are now open to all States in the world: the 1992 UNECE Water Convention and the 1997 UN International Watercourses Convention. While taking different approaches, these treaties are in fact mutually reinforcing. The growing disposition of States to govern their freshwater relations according to law shows that the International Year of Water Cooperation proclaimed by the UN General Assembly is not just a hollow slogan.

A Model for African Shared Water Resources: The Senegal River Legal System

Twenty‐five years ago, the late B.A. Godana stressed that despite the gap between, on the one hand, the vast number of African international drainage basins and their potential for socio‐economic development of the States and, on the other hand, the dearth of international regulations governing water resources, it was noteworthy that the achievements in terms of cooperation were impressive. More than any other African river, the Senegal has been characterized and governed by the most progressive and articulated legal regime. The leitmotif since the inception of this legal regime has been to engage in an experiment that not only follows the most advanced concepts of integrated water resources management, but may also offer lessons in cooperation at the global level. Therefore, the legal architecture to foster cooperation over the management of the Senegal has influenced the development of the law of international watercourses in Africa.

Can Two Global UN Water Conventions Effectively Co‐exist? Making the Case for a ‘Package Approach’ to Support Institutional Coordination

In the foreseeable future there will be two legal framework instruments covering transboundary water issues in force at the global level: the 1997 United Nations (UN) Watercourses Convention and the 1992 UN Economic Commission for Europe Water Convention. This development raises questions about the compatibility of both instruments, and how they might be implemented in a coordinated manner. A comparative analysis of the text of both instruments demonstrates that there are both similarities and differences between them, but that they are complementary. There is therefore significant benefit in promoting and implementing the conventions as a package. Three basic institutional options can be envisaged to support this ‘package approach’, each with their strengths and weaknesses. Ultimately, whichever option is chosen, the ‘package approach’ to the implementation of both conventions offers the best means by which to strengthen the law of international watercourses.