A History of Water Volume 2: Sovereignty and International Water Law 9780755694327, 9781786739612

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Sovereignty and International Water Law

History of Water Series Series Editor: Terje Tvedt. As concerns over global water resources continue to grow, the pioneering History of Water series brings a much needed historical perspective to the relationship between water and society. Covering all aspects of water and society – social, cultural, political, religious and technological – the volumes reveal how water issues can only be fully understood when all aspects are properly integrated. Unprecedented in its geographical coverage and unrivalled in its multidisciplinary span, the History of Water series makes a unique and original contribution to a key contemporary issue. Series I Volume 1: Water Control and River Biographies T. Tvedt and E. Jakobsson (eds), 2006 ISBN 978 1 85043 445 0 Volume 2: The Political Economy of Water R. Coopey and T. Tvedt (eds), 2006 ISBN 978 1 85043 446 7 Volume 3: The World of Water T. Tvedt and T. Oestigaard (eds), 2006 ISBN 978 1 85043 447 4 Series II Volume 1: Ideas of Water from Ancient Societies to the Modern World Terje Tvedt and Terje Oestigaard (eds), 2010 ISBN 978 1 84511 980 5 Volume 2: Rivers and Society Terje Tvedt and Richard Coopey (eds), 2010 ISBN 978 1 84885 350 8 Volume 3: Water, Geopolitics and the New World Order Terje Tvedt, Graham Chapman and Roar Hagen (eds), 2011 ISBN 978 1 84885 351 5 Series III Volume 1: Water and Urbanization Terje Tvedt and Terje Oestigaard (eds), 2014 ISBN 978 1 78076 447 4 Volume 2: Sovereignty and International Water Law Terje Tvedt, Owen McIntyre and Tadesse Kassa Woldetsadik (eds), 2015 ISBN 978 1 78076 448 1 Volume 3: Water and Food: From Hunter-Gatherers to Global Production in Africa Terje Tvedt and Terje Oestigaard (eds), forthcoming 2015 ISBN 978 1 78076 871 7

A History of Water Series III

Volume 2: Sovereignty and International Water Law

Edited by

Terje Tvedt, Owen McIntyre and Tadesse Kassa Woldetsadik

The editors would like to thank our Editorial Secretary for this volume, Julie Gjoertz Howden, the Norwegian Research council, the Centre for Advanced Studies at the Academy of Science and Letters in Oslo and the University of Bergen, Norway for supporting the work with this volume.

First published in 2015 by I.B.Tauris & Co Ltd London † New York www.ibtauris.com Copyright Editorial Selection and Introduction q 2015 Terje Tvedt, Owen McIntyre and Tadesse Kassa Woldetsadik Copyright Individual Chapters q 2015 Yadgar Ahmmad, Mohamed Sameh Amr, Slavko Bogdanovic, Tom Cech, Remy L. de Jong, Gabriel de los Cobos, Lilian del Castillo-Laborde, Joseph W. Dellapenna, Julie Gjørtz Howden, Joe Goldface-Irokalibe, Joyeeta Gupta, William Howarth, Desheng Hu, Dean Kampanje-Phiri, Emmanuel B. Kasimbazi, Stefan Lorenzmeier, Flavia Rocha Loures, Sergio Marchisio, Stephen McCaffrey, Owen McIntyre, Jennifer McKay, Cara Nine, Ernst Nordtveit, Charles Okidi, Sylvie Paquerot, Muhammad Mizanur Rahaman, Alistair Rieu-Clarke, Raya Marina Stephan, Amado S. Tolentino, Terje Tvedt, Christoph Vedder, Tadesse Kassa Woldetsadik, Patricia Wouters The right of Terje Tvedt, Owen McIntyre and Tadesse Kassa Woldetsadik to be identified as the editors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. Except for brief quotations in a review, this book, or any part thereof, may not be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. Every attempt has been made to gain permission for the use of the images in this book. Any omissions will be rectified in future editions. References to websites were correct at the time of writing. ISBN: 978 1 78076 448 1 eISBN: 978 0 85773 658 1 ePDF: 978 1 78673 961 2 A full CIP record for this book is available from the British Library A full CIP record is available from the Library of Congress Library of Congress Catalog Card Number: available Typeset in Garamond Three by OKS Prepress Services, Chennai, India Printed and bound in Great Britain by T.J. International, Padstow, Cornwall

Contents Part I: State Sovereignty, Water Systems and the Development of International Water Law 1. Sovereignty, the Web of Water and the Myth of Westphalia Terje Tvedt, Owen McIntyre and Tadesse Kassa Woldetsadik 2. The Evolution of Water Law Joseph W. Dellapenna and Joyeeta Gupta 3. The Siren Song of Sovereignty in International Water Relations Stephen McCaffrey 4. The History of Water Law in the Common Law Tradition William Howarth 5. History of Water Law in Scandinavia Ernst Nordtveit 6. State Sovereignty in the Case Law of the International Court of Justice Sergio Marchisio

3 27

47 66 105

128

Part II: Contemporary Challenges to State Sovereignty 7. Determining Sovereign Rights and Duties over International Watercourses: The Contribution of the International Law Commission and the UN General Assembly Alistair Rieu-Clarke

149

8. Sovereignty and Equitable Utilization of International Waters. Some Examples in Central Asia, Africa and the Middle East Remy L. de Jong

175

9. Territory, Resource Rights and Rivers: A Philosophical Case for Overlapping Jurisdiction Cara Nine

195

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10. History and Status of the Community-of-Interests Doctrine Flavia Rocha Loures

212

11. Reconciling Sovereignty with Supranationality: Lessons from the Nordic Countries Julie Gjø rtz Howden

251

12. Integration of the Right to Water in International Law: Circumventing and Bypassing State Sovereignty Sylvie Paquerot

273

13. State Sovereignty and Transboundary Aquifers Raya Marina Stephan and Gabriel de los Cobos 14. Sovereignty and the Procedural Rules of International Water Law Owen McIntyre 15. Addressing Water Security Challenges: The International Law ‘Duty to Cooperate’ as a Limit to Absolute State Sovereignty Patricia Wouters

297

315

334

Part III: Regional Case Studies 16. Sovereignty and Equitable Utilization: A Regional Implementation Summary Lilian del Castillo-Laborde

357

17. State Sovereignty and Shared Water Resources under the Islamic Legal Tradition Yadgar Ahmmad

382

18. Colorado and the Western United States Tom Cech

399

19. Sovereignty and the Joint Management of Shared Transboundary Water Resources in the West African Sub-region 424 Joe Goldface-Irokalibe 20. Principles of Transboundary Water Resources Management and the Frontier Watercourses Agreement between Finland and Russia Muhammad Mizanur Rahaman 21. Reflections and Trends on Sovereignty over Natural Resources: The Association of Southeast Asian Nations Amado S. Tolentino Jr

442

465

Contents

22. Australian Water Law History: The Move from Introspective State Sovereignty to a National Interest Approach and the Influence of International Law Jennifer McKay

vii

490

23. Transboundary Water Law: The Practice of the People’s Republic of China Desheng Hu

508

24. The Concept of State Sovereignty and River/Lake Basin Law in South Eastern Europe Slavko Bogdanovic

537

25. Development of European Water Law and State Sovereignty Christoph Vedder and Stefan Lorenzmeier

559

26. Nationalism, State Sovereignty and International Water Management in the Zambezi River Basin Dean Kampanje-Phiri

578

27. Water Systems, Water Agreements and State Sovereignty: The Case of the Nile Waters Agreement of 1929 Terje Tvedt

601

28. Constructing Dams: Between Sovereignty of States and Rules of International Water Law Mohamed Sameh Amr

623

29. Remodelling Sovereignty: Overtures of a New Water Security Paradigm in the Nile Basin Legal Discourse Tadesse Kassa Woldetsadik

641

30. The Doctrines of Sovereignty and Equitable Utilization of International Waters Under the Agreement on the Nile River Basin Cooperative Framework Charles Okidi

666

31. Uganda: Sovereignty and International Water Agreements Emmanuel B. Kasimbazi

687

Contributors

707

Index

715

Part I

State Sovereignty, Water Systems and the Development of International Water Law

1

Sovereignty, the Web of Water and the Myth of Westphalia

Terje Tvedt, Owen McIntyre and Tadesse Kassa Woldetsadik INTRODUCTION This eighth volume in the History of Water series addresses the most important political and judicial question in contemporary management and use of transboundary waters: sovereignty. Sovereignty has for centuries been at the very centre of political and legal arrangements between the community of states. It has been one of the constituent ideas of the postmedieval era, and it is the central organizing principle of the system of states in the present-day world. It is a term that in the contemporary world extends across continents, religions, civilizations, languages and ethnic groups, and different constructs of the sovereignty concept exist, offering varying and contradicting answers to the question of what it is.1 The issue here is located within both a historical and geographical context, and analysed from different perspectives by world-leading authorities in their respective fields. This chapter will focus on the issue of sovereignty from a rather unusual perspective. The meaning and changing nature, and status of state sovereignty in international politics and law have been analysed in innumerable articles and books. By 1928 it could be argued that the sovereignty doctrine had ‘been turned inside out and upside down by the successive uses to which it has been put’ (Ward 1928: 168). It is still widely regarded as a poorly understood concept, a confusion stemming from different sources. Consistent with this observation, the doctrine has been cited as authority for acts never intended as expressions of sovereignty, and it has been contested in ways that never conformed with practice in the real world. Most scholars, however, agree that at its core sovereignty is typically taken to mean the possession of absolute authority within a bounded territorial space: ‘A sovereign state can be defined as an authority that is supreme in relation to all other authorities in the same territorial jurisdiction, and that it is independent of all foreign authorities’ (Jackson 2007: 10). It is this notion of the centrality of territoriality that makes it particularly fruitful to discuss the question of sovereignty in a water perspective, since water on the move disregards political and social inventions as borders.

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Here sovereignty will be analysed in relation to how state actors have behaved when it comes to international rivers and aquifers, and how interactions with this particular fluid web of nature has impacted the notions of and practices of sovereignty. Within this general framework we believe it is important to focus on three specific questions relating to areas or central topics in the international discourse on sovereignty: i) what was the Westphalian notion of sovereignty; ii) to what extent has history seen a development from a Westphalian to a post-Westphalian notion of sovereignty; and iii) what are the connections between sovereignty and conflict? We wish to show that these key issues in international relations studies and international law can be understood in a new light by focusing on these three confluences between international rivers and politics. THE MYTH OF WESTPHALIA A main assumption and premise in the very extensive legal and political science literature is that the idea and principle of sovereignty is a legacy of the Peace of Westphalia in 1648. Westphalia is seen as the very birthplace of the idea of absolute and unrestricted sovereignty. The main story goes on like this: the Westphalian model emerged against the background of the cataclysmic changes unleashed in Europe during the sixteenth and seventeenth centuries. The Peace Agreement of 1648 provided legitimacy for the principle and idea of the territorial, unitary and absolute sovereign state, having exclusive authority within its own geographical boundaries. Through the centuries after 1648, this legacy and ascribed tradition – as theoreticized by international law scholars and political scientists – increasingly emphasized sovereignty, and led to confrontation between claims of absolute territorial sovereignty and claims to the absolute integrity of state territory. Westphalia has come to symbolize the birth of a new world order in which states are nominally free and equal, and enjoy supreme authority over all subjects and objects within a given territory; engage in limited measures of cooperation; and regard cross-border processes as a ‘private matter’ (see Falk 1969, Cassese 1986: 396–9, Held 1995: 78, and for quote, see Held 2002: 4). In recent decades there has been much debate about whether or not we live in a post-Westphalian world. One ‘school’ argues that due to a number of global trends, the triumphant Westphalian notion of sovereignty is now being gradually undermined. It is claimed that we live in a post-Westphalian age (Harding & Lim (eds) 1999, Westra 2010, Macqueen 2011) characterized by the ‘end of the sovereign state’ (Wunderlich & Warrie 2010: 256). Other researchers question the realism and validity of this claim, arguing that international relations remain anchored to the politics of the sovereign state (Buzan, Jones & Little 1993). They hold that differences in national power and interests, not international norms of cooperation and supranationality, continue to be the most powerful explanation for the

Sovereignty, the Web of Water and the Myth of Westphalia

5

behaviour of states. Both ‘schools’ agree, however, that Westphalia signalled the birth and subsequent dominance of the idea of the sovereign state having a final and absolute authority over its territory. The Westphalian model has offered a ‘simple, arresting and elegant image’, and an empirical regularity for various theories of international politics (Krasner 1995: 115). If Westphalia really marked the triumph of unfettered sovereignty, however, the text of the agreement should clearly and unambiguously advocate this new and general principle in international politics, and the negotiation process and the agreement should reflect this principle when existing transboundary issues are dealt with.2 First we will take a close look at the original texts. According to an edition published by Yale University, Article I of the agreement reads like this: That there shall be a Christian and Universal Peace, and a perpetual, true, and sincere Amity, between his Sacred Imperial Majesty, and his most Christian Majesty; as also, between all and each of the Allies, and Adherents of his said Imperial Majesty, the House of Austria, and its Heirs, and Successors; but chiefly between the Electors, Princes, and States of the Empire on the one side; and all and each of the Allies of his said Christian Majesty, and all their Heirs and Successors, chiefly between the most Serene Queen and Kingdom of Swedeland, the Electors respectively, the Princes and States of the Empire, on the other part. That this Peace and Amity be observ’d and cultivated with such a Sincerity and Zeal, that each Party shall endeavour to procure the Benefit, Honour and Advantage of the other [my italics]; that thus on all sides they may see this Peace and Friendship in the Roman Empire, and the Kingdom of France flourish, by entertaining a good and faithful Neighborhood.3

In an English translation from 1697 it reads slightly differently: That there shall be a Christian and Universal Peace, and a Perpetual, True, and Sincere Amity, between the Sacred Imperial Majesty, and the Sacred Most Christian Majesty; as also, between all and each of the Allies, and Adherents of the said Imperial Majesty, the House of Austria, and its Heirs, Successors; but chiefly between the Electors, Princes, and States of the Empire on the one side; and all and each of the Allies of the said Christian Majesty, and all their Heirs and Successors, chiefly between the most Serene Queen and Kingdom of Sweedland, the Electors respectively, the Princes and States of the Empire, on the other part. That this Peace and Amity be Observed and Cultivated with such a Sincerity and such Zeal, that each Party shall endeavour to procure the Benefit, Honour and Advantage of each other; that thus on all sides they may see this Peace and Friendship in the Roman Empire, and the Kingdom of France flourish, by entertaining a good and faithful Neighborhood [emphasis added].4

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In the original French text it reads like this: & cette paix s’observe & cultive since`rement & se´rieusement, en sorte que chaque Partie procure l’utilite´, l’honneur & l’avantage l’une de l’autre, & qu’ainsi de tous co ˆte´s on voye renaitre & refleurir les biens de cette paix & de cette amitie´, par ‘l’entretien sur & re´ciproque d’un bon & fide`le voisinage...’ (Bougeant, vol. 6: 285)

What clearly emerges is that these texts are not a treatise for absolute sovereignty. Paragraph I underlines rather the value of restricted sovereignty and the explicit need to be concerned with the interest of each other. The above English and French versions of the text of the Peace Treaty, underlining the principle of the ‘interest of each other’ or ‘of the other’, contradict dominant assumptions that the Peace of Westphalia established and enthroned the principle of unrestricted sovereignty. The text of the Peace Agreement formulates and reflects ideas of common benefits. The content of Article I should not, however, be seen as sufficient evidence to falsify the idea that Westphalia created a semblance of a new world order premised on the recognition of sovereignty. The Peace of Westphalia did institute an international system where sovereign states were recognized as the primary actors in interstate relations on the basis of sovereign equality, but what the text shows was that absolute sovereignty or territorial sovereignty in all its forms were not anticipated under this new order because it was not seen as being in the best interests of the sovereign. What is of specific concern when it comes to understanding how the Peace Agreement handles issues of territorial sovereignty and transboundary flows is the way the agreement describes the role of transboundary rivers in relation to territorial sovereignty. Westphalian sovereignty has often been conceptualised as the sovereignty of nation-states over their territory, and no external agents can play a role in domestic relations or structures. The Peace of Westphalia is regarded as the event that ended attempts to impose supranational authority on European states. But what did the Agreement actually stipulate? Here we limit our attention to the River Rhine, due to its economic and political importance. Paragraph LXXXIX of the Agreement deals explicitly with the River Rhine: All Ortnavien, with the Imperial Cities of Ossenburg, Gengenbach, Cellaham and Harmospach, forasmuch as the said Lordships depend of(on) that of Ortnavien, informuch that no King of France never can or ought to pretend to or usurp any Right or Power on the said Countries situated on this and the other side the Rhine: nevertheless, in such a manner, that by this present Restitution, the Princes of Austria shall acquire no more Right; that for the future, the Commerce and Transportation shall be free to the Inhabitants on both sides of the Rhine, and the adjacent Provinces: Above all, the Navigation

Sovereignty, the Web of Water and the Myth of Westphalia

7

of the Rhine be free, and none of the Parties shall be permitted to hinder Boats going up, or coming down, detain, stop, or molest them under what pretence soever it may be, except the sole Inspection and Search which is usually done to the Merchandizes, and it shall not be permitted to impose upon the Rhine, new and unwonted Tolls, Customs, Taxes, Imposts, and other like Exactions.5

The text of the Agreement underlines the importance of cooperation and the need to restrict the absolute territorial power of the sovereign, i.e. the opposite of what has been generally said about it. It was a territorial violation of the ascribed Westphalian model since it involved the creation of authority structures that were not coterminous with geographical borders. If the Peace Agreement’s plan for the Rhine is analysed in a broader historical and geographical context, it becomes clear that it reflected new and emerging ideas about how the countries on the continent could benefit by improving rivers that would then promote wealth and trade. The importance ascribed to supranational cooperation over waters in the Peace Agreement was a deliberate economic strategy pushed by the leading architects of the peace process, and a response to the particular problems caused by the hydrological and geographical character of the continental rivers in an era when rivers were primarily used for goods transportation. The Rhine, with a basin of about 180,000 km2 and a length of 1,300 km, and comprising what is today the northern tip of Italy, Switzerland, Austria, Germany, France, Luxembourg, Belgium and the Netherlands, was (and still is) one of the most important trading routes in Europe. Due to its natural features, the Rhine posed many hazards for navigation and thus for trade, even for quite small vessels.6 From Roman times attempts had been made to improve particularly awkward stretches of the river, but success had been limited. In the centuries and decades before the Peace of Westphalia, nothing much had been done and, in order to improve it, cooperation was necessary. The river’s nature incessantly created new obstacles. The river frequently shifted its course in floods, sometimes leaving flourishing river quays stranded. Towpaths and dikes were destroyed. Rocks and reefs impeded shipping. In Germany in the early Middle Ages commercial shippers ran scheduled trips along the Rhine between Mainz and Ko ¨ ln. Although the medieval records fail to establish precise quantitative data about the volume or value of riverine traffic and trade, it is safe to assert that river trade was important though limited. On an average all-year basis, half of the water came down from the Alps (mostly in spring) and half from the tributaries north of Basel (mostly rain fed). The water sources of the river thus liberated the Rhine from some of the problems encountered in other French and German rivers. However, the fluvial dynamics of the Rhine above Strasbourg

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A History of Water

prevented the construction of permanent towpaths and forced upstream traffic to depend on human muscle or wind power. Most transport was downstream, including timber rafting from the Black Forest to the Netherlands. Upstream travel was very difficult, requiring towpaths and the change of ships frequently on the way. The Rhine’s ‘low-to-high flow ratio’ coupled with the Foehn winds, meant that the river was flood-prone. The Upper Rhine had the classic characteristics of a floodplain, and frequent floods made quay-building and the building up of a trade infrastructure a hazardous enterprise. Catastrophic flooding occurred in 1124, 1342 and 1573. Traffic on the Rhine suffered for natural and hydrological reasons, but also because of political boundaries. Prior to the Thirty Years’ War, the river was under the control of the Emperor of the Holy Roman Empire and the imperial princes were responsible for maintaining the navigability of the river. The princes’ authority was weak, and they were more concerned with extracting tariffs for themselves than using resources on improving the river. The town guilds along the river acted in the same manner. In the mid-seventeenth century kings, bishops, cities and robber knights tried to profit from Rhine navigation. There were numerous tolls along the Rhine and passing ships had to pay duties to the rulers of the different Rhine sections. The number of tolling stations had increased from 19 in the late twelfth century to over 60 stations by the sixteenth century (Mellor 1983: 70). The way the Rhine runs through the landscape and the amount of castles built along the banks of the river meant that it was quite easy to control the trade on the river. The taking of tolls was held to be part of the imperial rights. Liberal grants were made to cities, and especially to lords, in order to secure the Emperor’s loyal support, or as a means of filling an empty treasury. There was, moreover, no reason for the individual prince to improve his stretch of the river if the other princes did not do the same along their stretches, because individual action would not improve it as a common good. The Peace of Westphalia endeavoured among other things to create a potentially very useful north–south transportation route that run through continental Europe. In spite of all the problems with river transport on the Rhine, it was still considered the preferable way to move goods and passengers. Previous rulers had occasionally tried to eliminate the tolls by force but these attempts failed. One fundamental aspect of the diplomatic and economic strategy of the French cardinal Jules Mazarin (1602–61), the man who effectively ran the French government during the Congress of Westphalia, was his visions for the continental waterways. His aim was to weaken the authority and power of the Emperor. For France to achieve this, economic development in the German states had to be facilitated. The best bet was to improve waterways since better trade on the rivers would also benefit France. Mazarin therefore commissioned a study of the rivers of the European continent and of the potential for an expansion of trade in goods produced along these rivers, including the Vistula, the Oder, the Elbe,

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9

the Weser, the Ems (which crosses Westphalia), and, of course, the Rhine (the most important economic channel linking Switzerland, Germany, France and the Netherlands). The political and territorial system on the continent hindered the development of the Rhine as a trading artery, Mazarin saw the Rhine as a corridor of development, but it was misused by the princes, working against their own best interests. In 1642, France announced that there would be no further peace negotiations if the introduction of new tolls along the Rhine were to be allowed. Even though the edict was not implemented in full, it contributed to creating the political atmosphere that enabled the Congress of Westphalia to succeed. It reflected or expressed in concrete terms the idea of the common good – the advantage of each other. The edict was seen as an important economic and political initiative, benefitting not only France but the whole region since the river was a key trading route on the continent. The basic understanding was that the economy was devastated by war, but was further undermined by the burden of systematic interruptions of trade on the river between northern and southern Europe.7 Legally, the use of the rivers was regarded as a common right and the use of the water for drinking and voyaging was free, thus undermining the idea of absolute territorial sovereignty. Hugo Grotius (1583–1645) a jurist in the Dutch Republic and one of the fathers of international law, argued that duty could not be taken for the exercise of this right, but that it should be interpreted as a compensation for the cost of maintaining the river and the towpaths. The Frankish monarchy, in contrast, saw duty as a tax upon, rather than a denial of the right of passage on the river.8 The Agreement did not lead to fundamental improvements of the river as a trade route. The Peace of Westphalia did not solve the problem of the Rhine. The regime on the Rhine in the eighteenth century has rightly been characterized as a ‘landscape of petty quarrels’24. Between Alsace in the south and the Netherlands in the north there were 97 German states alone. The ‘knights and priestlings’ ruling these tiny states were warring with their neighbours over fishing holes and birded islands. They built some small dams, with local aims in mind, and these only increased the number of sandbars and forks. They of course defended their ‘staple’ and ‘transfer’ privileges, an important source of income to them, and manned the toll booths (34 in a 600 km stretch from Gemersheim to Rotterdam alone) – all negatively impacting river trade. The provisions of the Treaty of Westphalia regarding the Rhine, coupled with the idea of ‘the advantage of each other’, can be seen as the first formal germs of what later – in 1815 – became the pioneering Rhine Treaty, which has been seminal in the history of European cooperation and unification and in the historical development of international water law. The situation had been somewhat improved, but the problem was

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A History of Water

not solved and the elimination of tolls therefore remained an important issue in the Peace Conference in Vienna in 1815, even after a number of agreements had been signed in the years before, such as the Treaty of the Hague in 1795 and the Convention of Paris in 1804, on the tolls of the navigation of the Rhine. In the framework of the 1815 Peace Treaty, the riparian Rhine states voluntarily opted for free navigation and elimination of the tolls. They created the Central Commission for Rhine Navigation. The internationalization of shared rivers and lakes for navigation was initiated formally in 1815 at the Congress of Vienna, when the Rhine Commission was established, followed by the Oder and the Niemen in 1918, the Elbe in 1921, and the Weser in 1923, which were all declared international waters for navigational purposes. In 1856 the Treaty of Paris internationalized the Rhine and the Danube. Therefore, as regards international waters, the Peace of Westphalia does not belong to a tradition of unrestricted sovereignty, which is being undermined by present developments. On the contrary, by viewing regional development as a historical process clear connection between 1648 and 1815 can be made. The principle of sovereignty was modified by the rationality of and the need for cooperation over international waters from the very beginning. This short assessment of the events that regulated shared European waters is sufficient to challenge the dominant interpretation of Westphalia.9 To assert that it was Westphalia that ‘formally recogniz [ed] exclusive territorial jurisdiction of monarchs’ (Wunderlich 2010: 255), and that it was in 1648 that the idea of undivided, unlimited authority and territorial exclusivity was born, contradicts not only the development of the actual peace process and the role of transboundary waters, but also the text of the Peace Agreement itself (Chamberlain 1923: 146–7).10 The text underlined the need for considering the interests of ‘the other’. It also prescribed cooperation on the Rhine running through different sovereigns’ territory. The concept of sovereignty as understood in 1648 implied that to be a member of an international society of states, you would have to comply with international agreements and contribute to finding a solution to collective problems. The idea that Westphalia represented an absolutist territorial definition of sovereignty cannot therefore be historically justified, and the canonical story is in this sense a myth.11 As with all other myths in history, however, it has become a myth for a reason; it has served specific political and ideological interests. The mythical story should therefore be analysed as yet another expression of the political– ideological career of the notion of sovereignty. Already in 1928 it was described in this way: ‘The various forms of the notion have been apologies for causes rather than expression of disinterested love for knowledge’ (Ward 1928: 167).12

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THE MYTH OF ‘POST-WESTPHALIA’ The dominant assumptions about the gradual undermining of the idea and doctrine of sovereignty form the backdrop of statements about the ‘death of Westphalia’ – a metaphor widely used to capture the perceived fall from status and strength of the sovereign state. This assessment of gradual decline of sovereignty has been put forward by an influential school within the international relation studies. In the 1970s and early 1980s, liberal interdependence theorists (Keohane & Nye 1972 and 1977, Morse 1976, Rosencrance 1986) argued that due to global development trends, state sovereignty was being eroded by economic interdependence, global scale technologies and democratic politics.13 Taking this view, states’ sovereignty was increasingly constrained and penetrated by ‘the forces of globalization’, of which international organizations can be thought to be part (Litfin 1997). There was a shift away from state-centric to multi-layered global governance (Held). This trend has also been noted by international lawyers, some of whom might go as far as to suggest that this tendency in international environmental and natural resources law leads the way in the ‘communitarization’ of states on a global scale, going beyond traditional ‘liberal’ international law, with limited functions of regulation and coexistence and based on reciprocal obligations, ‘‘‘to a multifunctional providential law, regulating the life of States and individuals and considered the ultimate guardian of collective well-being’’ [...] the implementation of which ‘‘does not depend on a corresponding implementation by the other parties’’’.14 According to Maljean-Dubois, ‘the special nature of the environment plays a large part in the transition from an international law of coexistence to an international law of cooperation’, which ‘is grounded not on an obligation not to do something, but on an obligation to do something, or positive obligations, because it comes from the idea of action or common tasks, which cannot be done or done well when done individually’.15 Much literature has argued that transnational environmental interdependencies have led to the demise of the state system. The ascribed mismatch between what has been conceived as the requirements of physical ecology and the reality of the social structure of politics has been expressed most famously, perhaps, in the dictum of Our Common Future: ‘The Earth is one, but the world is not’ (World Commission of Environment and Development 1987: 1). Some have anticipated sovereignty’s eventual replacement by some far-reaching supranationalism or even by world government (Falk 1971 & Ophuls 1977). A number of scholars and activists have argued along the same lines that the Earth itself demonstrates the inadequacies inherent in legal principles based on states’ territorial sovereignty. It has been assumed that the cumulative impact of agreements

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A History of Water

on ecological issues would tend to undermine the institution and idea of state sovereignty, since the territorial exclusivity upon which state sovereignty is supposed to be premised appears to be fundamentally violated by transboundary environmental issues (Johnston 1992). Or in other words, the seamless web of nature is seen to be contradicting and eroding the man-made system of territorial states and, therefore, also the doctrine of state sovereignty. Based on the above premises, the following hypothesis could be formulated: since water is always in a flux, constantly neglecting political and cartographic territorial boundaries, it should be assumed that this trend is particularly visible in the management of international river basins due to the increasing significance of water resources management of regimes of supranational governance. International rivers should, by their very nature, be constantly undermining the idea of sovereignty. At first glance this hypothesis is confirmed. Legal theories of ‘absolute territorial sovereignty’ – according to which a state has an absolute right to do as it pleases with the water in its territory – and the theory of ‘absolute territorial integrity’ – whereby the riparians are considered as having an absolute right to the natural flow, unimpaired in quantity and quality – are not supported in the contemporary world. But this situation alone should not be taken as proof of such a trend. Sovereign rights to utilize the water have, for a long time and in many societies, been limited by the obligation to consider the sovereign rights of other stakeholders. As we have shown, that was already an aspect of the 1648 settlement, as it was in the cases of the Rhine and the Danube conventions. The first agreements on the Nile from the 1890s and the early decades of the twentieth century barred upstream countries from using the Nile without the consent of other states in the basin. There has been a noticeable growth in the number of international institutions involved in transboundary water management – and such basinwide organizations have made ‘sovereignty bargains’ an art of politics executed by many state actors. In some geographical areas one can discern a trend by which states sharing international water resources have moved from positions based on notions of unrestricted sovereignty to positions that recognize the need to limit their sovereign discretion on the basis of sovereign equality. This development does not necessary mean a weakening of the sovereign. As it has been argued, states may engage in sovereignty bargains in which they ‘voluntarily accept some limitations in exchange for certain benefits’ (Litfin 1997: 170). If that is so, this development does not entail a weakening of sovereignty, just a change in the form of its manifestation. Examples indicate that the assumed trend of a weakening of the idea of sovereignty in relation to international river basins is not so clearly directional. Parallel to the internationalization of water politics and water

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management, the status of the notion of sovereignty has been strengthened ‘on the ground’ in many parts of the world. The postcolonial history of the management of the Nile is a case in point. A strengthening of state sovereignty has occurred to a considerable extent in relation to questions about how this international river should be managed among different ‘stakeholders’ in the age of modern technology. In recent years countries such a Kenya, Uganda, Rwanda, Tanzania, Burundi and Ethiopia have, as sovereign states, demanded the right to use the waters of Nile running through their lands down to Egypt and the Sudan, rejecting agreements entered into by the colonial rulers. The negotiations over the use of this common resource have created a very important new arena for these states to demonstrate their sovereignty in. The Nyerere doctrine of the 1960s and Kenyatta’s proposal put forward at the same time were crucial initiatives and steps in the history of exercising state sovereignty in the region (Tvedt 2012). Similarly, the Nile Waters Agreement between Great Britain and Egypt in 1929 was a watershed event in Egypt’s march towards sovereign statehood after it gained formal independence in 1922, as the Nile Waters Agreement between the Sudan and Egypt in 1959 signified the Sudan’s emergence as a sovereign actor on the regional and world scenes. The prolonged discussions between India and Bangladesh about the Ganges and the Farakka Barrage has, if anything, made the status of state sovereignty stronger and increased the animosity between two neighbouring countries. The problems inherent in sharing international aquifers show some of the same development. The discussions among the countries with territories covering the Guarani Aquifer in South America, and in the International Law Commission concerning the Commission’s 2008 Draft Articles on Transboundary Aquifer that in 2010 led to the Guarani Aquifer Agreement, have strengthened the status and relevance of state sovereignty. The discourse supporting these instruments asserts that water resources belong to the states in which they are located and are subject to the exclusive sovereignty of those states. These cases contradict the general hypothesis about a universal, historical trend, and suggest the need for more detailed empirical research. Actual historical development is more multi-faceted than the dominant trend-analysis, but why is this so? Since sovereignty is not only an attribute of the state, but is attributed to the state by other states or state rulers, there are no reasons why international or transnational river basins or aquifers should – due to geographical necessity – erode the status and legitimacy of sovereignty. It turns out that geographically speaking, artificial borders across international water bodies are challenged by international institutions and modern legal thinking, but that they also serve an increasingly important symbolic function in encouraging manifestations of state sovereignty. By focusing on territorial borders within a river basin, the political leaders make themselves easily visible as defenders of ‘the interests

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of their people’; since all inhabitants in all states need water, the state and its leaders can acquire legitimacy as sovereigns defending their people in negotiations over such cross-boundary ecological structures.16 Moreover, states often exercise this sovereignty in multilateral, international institutions, characterized by being distanced from societal and democratic control since state bargaining with society is bypassed and also normatively defended by the idea of multilateralism. This externally induced, state-led challenge of democratic control should not simply be interpreted as an erosion of sovereignty. It might rather be an indication of an opposing trend, since this context gives the actors representing the sovereign increased freedom in their sovereignty bargains. This is especially so in relation to international waters, where it is easy to use nationalistic slogans to mobilize people in the street, but where more de-politicized negotiations may facilitate the most optimal solutions, both for the river and for the states sharing it. To use a reified, ahistorical notion of sovereignty, disregarding the actual complexity of practices that exist, will fail to grasp the multiple dimensions of sovereignty and its meanings and how these are in constant flux. This short analysis has rejected the universal validity of the above trend analysis of the status of sovereignty, primarily by testing the hypothesis in relation to international river basins, an area where one should assume that its validity should be confirmed. The dominant but mythical story about Westphalia misrepresents the past with the consequence that the present is misunderstood: the differences between ‘then’ and ‘now’ are far less than the talk about ‘the end of Westphalia’ presupposes. Regarding water and river management in particular, it is empirically misleading and theoretically problematic to talk about a post-Westphalian age signified by cooperation and the undermining of the absolute power of the sovereign, since Westphalia initiated an era of cooperation on water between sovereigns in continental Europe. SOVEREIGN STATE ACTORS AND CONFLICT The manner in which states conduct their hydropolitics with one another has, in general within the field of international relations, been analysed through theoretical frameworks associated with ideas of the sovereign state actor (Dalby 1998). The basic idea within this tradition is that unilateral development based on a sovereign’s interests will be conflicting by nature or result in conflict. We will here contest this general assumption. We will argue that the idea shared by realists and neo-realists – that sovereign states driven by power and interests will find it very difficult to cooperate given that they ultimately insist on maintaining and safeguarding their own autonomy, control and legitimacy – overlooks both the nature of rivers as transboundary resources and how these can be approached by

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state actors. Empirical, historical studies show that neither conflicts nor ‘tragedies of the commons’ are given or guaranteed outcomes in the absence of cooperative framework agreements in international river basins. This is so, due to a combination of natural characteristics of water bodies and historical processes, issues are seldom integrated in analysis within this type of social analyses (Tvedt 2004). Given the fact that almost all big rivers are shared by two or more sovereign states and that almost half the population of the world live in international river basins on the one hand, and that there have been very few wars or open conflicts between sovereign states about how to use these rivers on the other hand, sovereign states have managed to solve a lot of conflicting issues in a peaceful manner. This is not an argument against the idea that sovereign state actors create conflict, but it refutes the assumption that sovereign state actors are not able to resolve differences in a peaceful, non-conflictual manner. It is possible to regard the unique cooperation among sovereign European states on the continent’s big rivers in the seventeenth and early nineteenth centuries as forerunners to the European Union of the twenty-first century. The Indus Water Treaty in 1960 was made possible by an agreement between two sovereign states, brokered by the World Bank, disregarding the interests of individual regions, such as Kashmir, and ethnic groups in the basin. There are thus a number of examples that show that states can enter into agreements and by such an act contain potential conflicts between other and different actors. There is, however, another geographically related argument that is more interesting and intriguing when it comes to the role of the sovereign (See Tvedt 2004 & 2015). In large river basins, economic, political, technological and ecological conditions can vary considerably from one part of the basin to another, and this fact presents sovereign states located within international river basins with different and potentially non-conflicting strategic choices. Climatic conditions, soil types, velocity and flow characteristics may have created fundamentally different options of adaptations in the past, and they will create a wide array of possibilities in the present and the future. For example, irrigation may not be a priority in one country as sufficient rainfall enables rain-fed agricultural production there while, at the same time, irrigation may be a fundamental approach to water resource utilization in another country within the basin. In some parts of the basin the water can produce hydropower, while in other parts this is not possible or feasible. The need for water and the way states are capable of relating to it will vary markedly depending on a number of historical factors. The point is that the sovereign’s territorial interests in maximizing water usage may not always be in conflict with another sovereign state’s plan to maximize its water usage, contrary to the case in a traditional ‘commons’ as described by Garret Hardin and others. Even in cases when sovereigns enjoy full sovereign freedom, their actions may be to

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A History of Water

the benefit of others. When, for instance, Ethiopia erects the highly controversial Renaissance Dam within its territory it might frighten Egypt for geopolitical reasons, but it may still be in the real, long-term interest of Egypt as far as technical management of scarce water resources is concerned. In an international river basin it need not always be a zero-sum game, where a participant’s gain (or loss) must be balanced by the losses (or gains) of the utility of the other participant(s). Instead of having a situation where, when the total gains of the participants are added up and the total losses are subtracted they will amount to zero, one might have a situation where everyone will benefit. The particular aims of the different sovereigns created by history and geography might therefore prove to be an advantage for optimal utilization as compared to what would have taken place had there been one river authority ascribed the power to act on behalf of all. To analyse sovereignty and conflict as abstract models of principles or as conflicting or cooperating legal relationships between basin states may therefore blur the understanding of underlying issues in a particular river basin and might also hinder peaceful utilization of the watercourse. For a couple of decades there has been extensive debate on whether international river basins will be a source of war or of cooperation between riparian states. Water wars theories suggest that as each riparian state maximizes its use of the scarce water resources, conflict ensues and – particularly in water-stressed basins – war may be the end result. In reaction to the water wars theories, other researchers have advanced water as a pathway to peace theories, suggesting that because of greater interdependence between riparian states, they will commonly come together for the core purpose of managing water jointly. Both these basically deterministic theories can be contested, as the configuration of power, history and relations among actors in river basins are more diverse than the theories allow for. The society–water interactions are bi-directional, since the social attributes of the actors, their values, interests, and the power relations that influence how the physical environment is conceived, are so diverse. Water’s presence within the territory of a nation-state is often very specific to the geographic features of that country, and the local people often identify strongly with these water resources and geographic features, considering them part of their national heritage and identity. The place occupied by an international water body in a nation’s cultural life will vary over time, often according to the country’s transactional situation with regard to its water. This fact supports the argument that nation-states cannot be entrusted with the burden of protecting other peoples’ rights to the same water. Additionally, however, societies cannot manipulate their environment at will since geographical and hydrological factors define what is possible with different means. Thus societies’ exploitation of water resources is not only solely based on political, social, economic and technical capacities, but must also be suited to the

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ecological contexts in which such exploitations take place. Moreover, as the physical environment changes by natural and human-induced forces, societies constantly have to modify their relationship to the physical environment in order to sustain themselves. These dynamic society–water interactions vary from one basin state to another, particularly in large basins with different ecological conditions. It is these patterns and histories of interactions between the different basin states and their physical environment that influence how these states enter the international hydropolitical arena, the strategic choices adopted and the forms of cooperation that are preferred. In river basins it is too easy to conclude that the modern sovereign state is creating or solving the problem of cooperation or conflict (Tvedt 2010). Instead of resorting to general models and universal principles, it is the particular ‘rules of the games’ in the particular river basin that should be properly analysed in order to avoid conflict and promote further cooperation. Resolution of water conflicts is, therefore, essentially a negotiation of particular linkages, of which the particular geographical and hydrological linkages are but two. PROPERTY, SOVEREIGNTY AND HYDROLOGY Historical studies have made it clear that there is no grand theory of development that can explain and grasp change and continuity in international water law, and neither national nor international water law has evolved systematically or naturally according to their own methodology or internal laws (Howarth 2014). Resolution of particular cases in particular man/water relations has often proved to be the ‘tail’ that wags the ‘dog’ of legal principle (Howarth 2014). Water law as found around the world today has aptly been described as ‘a patchwork of local customs and regulations, national legislation, regional agreements, and global treaties’ (Dellapenna 2014), reflecting that water law developed in a highly contextual manner mirroring different political systems, religious traditions and economic activities and relations. Some laws are drawn from Talmudic interpretations or from Islamic law regarding Allah as the legislator; others are influenced by European continental law traditions or the common law traditions, where the judges have the key role in making the law. According to Article 38 of the Statute of the International Court of Justice, the sources of international law are a mix of international conventional law, international customary law, the general principles of law recognized by ‘civilized nations’, and the judicial decisions or international case law and the teachings of the most qualified publicists. The fundamental reason for different legal practices in different sovereign states and in different international river basins is not only that all societies and regions have different political, economic and religious histories, but also that they at all times have had to relate to and distribute

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A History of Water

the particular water running through or underpinning their societies in some way or another. Since legal norms and traditions can only be understood by making reference to the attitudes of the human beings who established them, to reconstruct their history requires an understanding of the situation as apprehended and conceived by the agents whose acts impacted legal developments. Here it is argued that in addition to political, cultural and judicial history, it is also necessary to integrate an analysis of the water body subject to lawmaking, since it forms part of this ‘situation’ as filtered through the lens of the actors. The legal history of international water will therefore also have to integrate into the analysis such non-social issues as the physical characteristics of different water bodies (aquifers, wells, and other specific types of running water and river basins, etc.). In order to understand the history of international water law and sovereignty one therefore ought to study the general historical context in which these laws developed as well as the particular geographical and hydrological features of the legal objects for which the laws were developed. The point we will make is that geography matters when it comes to understanding the development of international water law and the particular notions of sovereignty dominating in different river basins.17 The Danube Convention is a case in point and demonstrates the need for a broad, multidisciplinary approach. It was formalized against the background of a very particular historical–geographical situation in the lower part of the Danube River at the end of the Crimean War. The countries in the region wanted to ensure that trade on the Danube, which had been such an important waterway for centuries, should no longer be hampered by narrow national interests. Commerce and shipping had almost been stopped by hydrological and geographical features of the river. The sanding of the delta, which was shared by different countries, made commerce and trade almost impossible. Boats could hardly travel upstream from the Black Sea and vice versa. In 1865, the year the treaty was signed, the situation was especially bad and the mouth of the Danube was littered with the wrecks of sailing ships and made hazardous by hidden sandbars. By internationalizing the river this hydrological and natural problem could be solved in the best interest of all the states concerned. Through cooperation among the states (Britain and Italy were also part to the agreement), the common enemy – the sand – could be more easily moved. It was in fact only by cooperation and agreement that this particular problem facing them all could be solved. The hydrology of this river acted as a definite push towards international, cooperative agreements.18 Politically as well as historically this was a golden moment, and the countries grabbed the opportunity. Later in the nineteenth century a number of new agreements relating to the Danube River were signed, concerning the jurisdiction and powers of what was called ‘the European Commission’ on the Danube (Kaeckenbeeck 1920: 233).

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The situation on the Nile was very different. The primary use of the river was for irrigation rather than transport, and its hydrology has not acted as a push for cooperation, since the basic and fundamental feature of the river is that it runs for 2,000 km through one of the hottest deserts in the world, and through two countries totally dependent on water discharge they do not control since all the waters come from upstream. The 1929 Agreement was therefore not an agreement aiming at resolving common problems, but the outcome of political and diplomatic rivalry between Great Britain and Egypt. London exploited for political and diplomatic reasons the fact that the upstream countries at the time could be considered as having no interest in the river at all because they could rely on other parts of the water system: rainfall. London institutionalized a policy of limited sovereignty for the East African territories in order to establish a form of basin-wide cooperation between the two dominant powers, London and Cairo. The 1929 Agreement on the Nile cannot be understood without taking into consideration the Nile as a complex water system with three different and interconnecting layers: i) power relations within the Nile Basin; ii) technological development and human modifications of the river; and iii) the river’s enormous length, the fact that it traverses extremely different climatic zones, its variable hydrology, etc (Tvedt 2014). The infamous Harmon Doctrine must also be analysed in connection to the specific ecology of the Rio Grande and the years of drought that preceded the formulation of the doctrine, just as the general applicability of lessons from the up-to-now successful 1960 Indus Treaty between Pakistan and India are limited, since the solution of assigning all the water of the eastern tributaries of the Indus to India and the western tributaries and the main channel to Pakistan was made possible by special territorial and hydrological features that are not found elsewhere. In order to understand the development of international water law it is therefore not sufficient to study the development of law itself; one must also study historical context in a broad sense as well as geography and hydrology. The importance of geography should not be seen in a narrow, one-dimensional and deterministic way. There are no necessary or determining relations between geographical location and international law practices, or between varying river systems and treaty design differences. To argue that the most fundamental elements in the analysis of conflict and cooperation over an international river are the geography of the river itself and the location of each state vis-a `-vis that river is to overstate the case. Even in those cases where rivers bind states into a complex web of interdependencies, geography is only one factor, and it is the combined impact of geographic location, economic might, technological capabilities, water management capacities and military muscle that influence symmetry and asymmetry in international river agreements (Dinar 2008: 46). Of course, there are some widespread characteristics. The most important factor of long-term consequence is that bargaining power not available to

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downstream states may be available to upstream states (Sprout & Sprout 1962: 366). It is not always the case, however, that whoever controls the upper parts of a river basin has a distinct strategic advantage vis-a `-vis sovereign downstream actors. In the relationship between Lesotho and South Africa regarding the rivers feeding the urban centres of Johannesburg and Pretoria, Lesotho as the upstream power has become a victim of its location upstream in a river basin controlled politically and economically by a very strong downstream neighbour. Sovereign states with apparently enormous potential water power may turn out to be weak in a given confrontation with seemingly weaker states if analysed from a purely geographical perspective. It has been argued that the geographical position of the state – whether it is located upstream or downstream – is the ‘key to this veto symmetry’ (Dinar 2008: 45), but there are enough cases from river basins around the world to contradict this general theory. Politics triumph most often – but not always – over geography, at least in the short run. The popular idea that upstream sovereign states always have a geographical advantage is deterministic, and should be regarded as a dogmatic substitute for concrete investigations. It may or may not be the geopolitical constellation, depending on the geography of politics and economies in a much wider sense than just in relation to the one-factor upstream/downstream dichotomy. The Nile might be a case in point. Ethiopia has been an upstream country on the Nile for thousands of years but, because it was technologically very difficult to exploit the river at all within its territory due to a number of geographical factors, Egypt, located at the river’s outlet and surrounded by deserts, developed as the strongest regional power. Ethiopia was not in a position to exploit its upstream position while Egypt used its downstream position to develop by far the most powerful state actor in the whole basin. As time passed and the basin entered the Modern Period, Ethiopia was barred from using the little water it could use by asymmetric treaty arrangements benefitting the downstream power. Now this is about to change and any general theory must be able to explain why, until now, an upstream location has been a strategic disadvantage. These examples are sufficient to indicate that right, might and location are interlinked in much more multi-faceted relations than popular ideas comprehend. To bring geography into the picture is nothing new. The 1911 Madrid Declaration of the Institute of International Law made it clear in its preamble that its principles of law were deduced from ‘the permanent physical dependence’ of co-basin states.19 As Bourne has summarized it: ‘The physical features of a drainage basin, its geography’, were now to be ‘the foundation of the legal rules applicable to its development’.20 But as Bourne rightly commented, ‘an argument based on geography alone does not carry conviction’,21 due to alterations of river basins by man. To understand the historical development of notions of sovereignty in

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international river basins or in international law, it is crucial to bring into the analysis both human modifications of the river system and ideas about how the water can best be used and distributed. Additionally, geography is more complex than the Madrid Declaration has acknowledged. In both the hydrological and a geomorphological sense, drainage basins are dynamic rather than static entities. The processes of fluvial geomorphology shapes landforms over and through which the water moves. They influence watertable depths and how far water is running underground, impact soil profiles and, not least, the stream channels. One can talk about a ‘fluvial hydrosystem’ (Amoros & Petts 1993, Petts & Amoros 1996), viewing fluvial systems as interdependent combinations of the aquatic and terrestrial landscapes, as meandering alluvial rivers, changing river channel patterns, erosional processes and slopes, changing over time the longitudinal stream profiles, etc. The basin scale, although in some cases very large, may nevertheless be too small for the effective study of environmental, economic and political issues. One needs, moreover, to take account of the global nature of the hydrological cycle. The issue of scale has been regarded as one of the major unresolved problems in hydrology (Sivapalan & Kalma 1995,22 Ward & Robinson 2000: 346)23 since macro, meso- and micro-scale are all relative terms. CONCLUSION By using water as an entry point, this chapter has shed new light on sovereignty and the history of the doctrine’s status. It has shown that the dominant interpretation of both Westphalia and the ‘death of Westphalia’ are based on a neglect of empirical data and a disregard for the particular character of the ecology and economy of rivers.24 Westphalia was not the birthplace of unlimited sovereignty, since it also encouraged and codified cooperation among state actors to improve cooperation on the major continental rivers. The notion that the idea and status of sovereignty is currently being unavoidably undermined by ecology and ecological concerns has moreover been questioned by bringing forth empirical examples showing contradicting historical developments in some important river basins. The chapter has also shown that although treaty-making cannot be understood properly unless analysed from an inclusive geographical perspective, there is definitely no one-factor causal relationship between a state’s geographic position in a river basin and its bargaining power. The relationship is far more bi-directional and complex. A critical analysis of the interconnectedness between state sovereignty, the history of international law and the character of the water system is important because it will reduce the risk of self-delusion regarding the progress achieved in theories, laws and practices of international conduct in international river basins.

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NOTES 1 The definition of sovereignty in Black’s Law Dictionary (http://thelawdicti onary.org/sovereignty/#ixzz2m1XWXxr7) reads: ‘The possession of sovereign power; supreme political authority; paramount control of the constitution and frame of government and Its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.’ 2 Croxton and Tisher summarize the problem of historical analyses of Westphalia very accurately: ‘Taken together, the congress and the peace are so complex that historians still discover new aspects of it today’ (Croxton & Tisher 2002: xx). The literature on the peace process, the Peace Agreement and their consequences are voluminous. This article highlights only one aspect of the whole process, and how it has been analysed and reconstructed in literature in international law and international relations studies. 3 Treaty of Westphalia. Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies, see http://avalon.law.yale.edu/ 17th_century/westphal.asp. The Yale translation talking about the advantage of ‘the other’ is less accurate than the old English translation, but what is significant is that the principle that the sovereign should work to the advantage of each other is common to both of them. 4 The Articles of the Treaty of Westphalia. Peace Treaty signed and sealed at Munster in Westphalia the 24th October, 1648 (London: W. Onley, 1697), p.31. 5 The Articles of the Treaty of Westphalia. Peace Treaty signed and sealed at Munster in Westphalia the 24th October, 1648. (London: W. Onley, 1697), p.31. 6 For a description of these difficulties, see Mellor, 1983. 7 On the other hand, the Agreement closed the River Scheldt to the Belgic provinces, thus ruining the commerce of Antwerp (Kaeckenbeeck 1920: 31), an expression of the fact that the agreement was less concerned with principles than with pragmatic solutions suiting the most powerful. There was some pretext for this exceptional rule. This portion of the Rhine had been radically modified by Dutch engineers. It has also played important roles at different points in time; it was the forcible opening of this passage by the French in favour of the Flemings and against the Dutch that led the former to enter into the war of the French Revolution. Access to the river was also the subject of the brief 1784 Kettle War. 8 First after the next big European peace conference, the Vienna Congress in 1815, and after the French Revolution had swept away the old order partly by establishing the Confederation of the Rhine in 1806, did the countries in the region succeed in developing the Rhine as a transport artery. Then it took place under the leadership of the famous German water engineer Johan Gottfried Tulla, who deepened and channelled the Upper Rhine. This remodelling of the Rhine required, of course, a technological competence level in river manipulation that was not available in the seventeenth century. 9 Similar conclusions have recently been drawn by historians researching other aspects of Westphalia. The Thirty Years’ War was accompanied by permanent

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10

11 12

13

14

15 16 17 18

19 20 21 22 23 24

23

negotiations and the opponents never totally broke off political contact, and ideas of mutual destruction did not exercise a decisive influence over the political elites (Kampmann 2010: 204). There is also a discussion about when the idea of sovereignty entered international diplomatic language. Caporaso (2000: 3) and de Mesquita (2000: 93) argue that sovereignty entered the vocabulary of international relations 500 years before, in connection with the Condordat of Worms, 23 September 1122. Spruyt (1994: 94) and Thomson (1994), in contrast, claim that the contemporary form of territorial sovereignty developed much later. These are important questions that might diminish the ‘model’ role of Westphalia from another angle. For arguments that the Westphalian model was a geographical expression of authority, invariable and inevitably territorial, see for example Agnew, 2005: 456 and Axtman, 2004: 260. Krasner argues that the ‘Westphalian model is better conceptualized as a convention or reference point that might or might not determine the behavior of policymakers who are also motivated’ by different interests, national ideals and influenced by power relations (Krasner 1995: 117). By the liberal interdependence school, sovereignty has been seen as being synonymous with the degree of control exercised by public authorities over transborder movements, i.e. the ability to regulate the flow of things across borders. Maljean-Dubois, ‘The Making of International Law Challenging Environmental Protection’, in Y. Kerbrat and S. Maljean-Bubois (eds), The Transformation of International Environmental Law (A. Pedone & Hart, Paris and Oxford, 2011), pp. 25–54, at 34, quoting from various writings by E. Jouannet. Ibid., pp. 34–5. The point about borders and their increasingly symbolic functions is made by Rudolph, 2005. Dinar (2008) is one of the few books underlining the importance of geography in understanding water law, but the approach and explanations are very different from the suggestion put forth here. The role of the Danube Commission was so strong that an observer in the 1930s argued that ‘the need for protecting the integrity of the commission will some day lift it out of the twilight of statehood and accord it full membership in the League of Nations.’ See Blackburn, 1930. Quoted from Wouters, 1997: 4. Quoted from Wouters, 1997: 4. Quoted from Wouters, 1997: 15. Sivapalan and Kalma, 1995. ‘Scale Problems in Hydrology’, in Kalma, J.D. and M. Sivapalan (eds), Scale Issues in Hydrological Modelling (Chichester: Wiley, 1995), pp. 1–8. Ward, R.C. and M. Robinson, Principles of Hydrology (London: McGraw-Hill, 2000). Thanks to Pierre Beaudry that I became interested in the interpretations of Westphalia, see Beaudry 2010.

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REFERENCES Agnew, John. ‘Sovereignty Regimes: Territoriality and State Authority in Contemporary World Politics’, Annals of the Association of American Geographers, 95/2 (2005), pp. 437–61. The Articles of the Treaty of Westphalia. Peace Treaty signed and sealed at Munster in Westphalia the 24th October, 1648 (London: W. Onley, 1697). Axtman, Roland. ‘The State of the State: The Model of the Modern State and Its Contemporary Transformation’, International Political Science Review, 25/3 (2004), pp. 259–79. Beaudry, Pierre, ‘The Peace of Westphalia and the Water Question: A Perspective for the Benefit of the other’, in Tvedt, Terje, Graham Chapman and Roar Hagen (eds), Water, Geopolitics and the New World Order, Vol III, Series II, in Tvedt, Terje (Series Editor), A History of Water, London: I.B.Tauris, 2010). Blackburn, Glenn A. ‘International Control of the River Danube’, Current History (1930) XXXXII. Bougeant, Pe`re, Histoire du Traite´ de Westphalia ou des Ne´gociations, vol. 6 (Paris: Didot). Buzan, Berry, Charles Jones and Richard Little, The logic of Anarchy: Neorealism to Structural Realism (New York, NY: Columbia University Press 1993). Caporaso, J.A. ‘Changes in the Westphalian Order: Territory, Public Authority, and Sovereignty’, International Studies Review 2/2 (2000), pp. 1–28. Cassese, Antonio, International Law in a Divided World (Oxford: Clarendon Press, 1986). Chamberlain, J.P. The Regime of the International Rivers: Danube and Rhine (New York, NY: Columbia University Press, 1923). Coulson H.J.W. and Forbe, U.A. The Law of Waters, Sea, Tidal, and Island and Land Drainage, 1st ed. 1880. I quote from Hobday, Reginald S., 6th ed. (London: Sweet & Maxwell, 1952). Croxton, Derek and Tischer, Anuschka. The Peace of Westphalia: A Historical Dictionary (Westport, CT: Greenwood, 2002). Dalby, S. ‘Ecological metaphors of security: World politics in the biosphere’, Alternatives, 23 (1998), pp. 291–319. de Mesquita, B.B. ‘Popes, Kings, and Endogenous Institutions: The Concordat of Worms and the Origins of Sovereignty’, International Studies Review 2 (2000), pp. 93–118. Beaudry, Pierre, ‘The Peace of Westphalia and the Water Question: A Perspective for the Benefit of the Other’, in Tvedt, Terje, Graham Chapman and Roar Hagen (eds), Water, Geopolitics and the New World Order, Vol III, Series II, in Tvedt, Terje (Series Editor), A History of Water, London: I.B.Tauris, 2010). Dinar, Shlomi. International Water Treaties. Negotiation and Cooperation along Transboundary Rivers (London: Routledge, 2008). Falk, R. ‘The interplay of Westphalian and Charter conceptions of the international legal order’, in R. Falk and C. Black (eds), The Future of the International Legal Order, vol. 1 (Princeton, NJ: Princeton University Press, 1969). Harding, Christopher and Lim, C.L. (eds), Renegotiating Westphalia (The Hague: Martinus Nijhoff, 1999). Held, David, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995).

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Howarth, this volume Jackson, Robert. Sovereignty (Cambridge: Polity Press, 2007) Jacobsen, Trudy, Sampford, Charles J.G., Thaku, Ramesh Chandra (eds), Reenvisioning Sovereignty: The End of Westphalia? (London: Ashgate, 2008). Johnston, R.J., ‘Laws, States, and Super-States: International Law and the Environment’, Applied Geography 12 (1992), pp. 211–28. Kaekenbeeck, Georges, International Rivers. A Monograph Based on Diplomatic Documents (Grotus Society Publications, 1, London: Sweet and Maxwell, 1918). Kampmann, Christoph. ‘Peace Impossible? The Holy Roman Empire and the European State System in the Seventeenth Century’, in Asbach, O and Schro ˜ der, P. (eds), War, the State and International Law in SeventeenthCentury Europe (London: Ashgate, 2010), pp. 197–211. Keohane, R. and Nye, S.J., Transnational Relations and World Politics (Massachusetts, MA: Harvard University Press, 1972). ———, Power and Interdependence: World Politics in Transition (Canada: Little, Brown & Company Ltd, 1977). Krasner, Stephen D., ‘Compromising Westphalia’, International Security, 20/3 (1995), pp. 115–51. Litfin. Karen T., ‘Sovereignty in World Ecopolitics’, International Studies Review, 41/2 (1997), pp. 167–204. Macqueen, Norrie, Humanitarian intervention and the United Nations (Edinburgh: Edinburgh University Press, 2011). Mellor, Roy E.H., The Rhine. A Study in the Geography of Water Transport (O’Dell Memorial Monograph 16, Aberdeen: Department of Geography, 1983). Morse Edward, Modernization and the Transformation of International Relations (New York, NY: Free Press, 1976). Ohmae K., The End of the Nation State (London: Free Press, 1995). Ophuls, William, The Ecology and the Politics of Scacity (London: W.H.Freeman. 1977). Rosecrance, Richard, The Rise of the Trading State: Commerce and Conquest in the Modern World (New York: Basic Books, 1986). Rudolph, Christopher, ’ Sovereignty and Territorial Borders in a Global Age’, International Studies Review, 7/1 (2005), pp. 1–20. Spruyt, H., The Sovereign State and its Competitors: An Analysis of Systems Change (Princeton, NJ: Princeton University Press, 1994). Thomson, J.E., Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Princeton, NJ: Princeton University Press, 1994). Treaty of Westphalia. Peace Treaty between the Holy Roman Emperor and the King of France and their Respective Allies (http://avalon.law.yale.edu/ 17th_century/westphal.asp). Tvedt, Terje, The River Nile in the Age of the British. Political Ecology and the Quest for Economic Power (London: I.B.Tauris, 2004). ——— (ed.). The River Nile in the Post-colonial Age: Conflict and Cooperation in the Nile Basin Countries (London: I.B.Tauris, 2010). ———, The Nile – The River of History (London: I.B.Tauris, forthcoming 2015). ———, Graham Chapman and Roar Hagen (eds), Water, Geopolitics and the New World Order, Vol III, Series II, in Tvedt, Terje (Series Editor), A History of Water (London: I.B.Tauris, 2010).

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Ward, Paul W., Sovereignty. A Study of a Contemporary Political Notion (London: George Routledge & Sons, 1928). Westra, Christian, ‘Will the ‘‘Bush Doctrine’’ Survive Its Progenitor? An Assessment of Jus ad Bellum Norms for the Post-Westphallan Age’, Boston College International and Comparative Law Review, 32/2 (2009), pp. 398–422. World Commission of Environment and Development, Our Common Future (Oxford, New York, NY: Oxford University Press, 1987). Wouters, Patricia (ed.). International Water Law. Selected Writings of Professor Charles B. Bourne (Kluwer Law International, 1997). Wunderlich, Jens-Uwe and Warrie, Meera, A Dictionary of Globalization (London: Routledge, 2010).

2

The Evolution of Water Law

Joseph W. Dellapenna and Joyeeta Gupta INTRODUCTION: THE IDEA OF LAW Today water law applies to water usage at all levels, from regulations by the smallest local governments up to state/provincial, national, regional, and international or global laws. While there are seemingly infinite variations of detail in these different bodies of law, they tend to fit into a fairly limited number of patterns. While some of this is imposed by the nature of the resource itself, other features reflect the spread of laws by various means from place to place and time to time. This chapter seeks to describe the process by which these patterns were disseminated across the globe. The place to begin is not with water, but with the idea of ‘law’. Readers who come from industrialized societies and developing countries with inherited colonial legal systems are likely to have a firm idea of what the word ‘law’ means, derived from their experience of legal systems in their own societies, a model of how law works when they describe something as a law and some claim of right or obligation as legal. The model they are likely to have in mind envisions a legislature acting formally to create a highly determinate rule enforced by the police, who will ‘take you in’ if you violate the ‘law’. As George Jackson put it, ‘[t]he ultimate expression of law isn’t order, it’s prison’ (Jackson 1972: 119). This notion of law is called ‘legal positivism’ because it focuses attention solely on ‘positive’ law – law that is formally enacted and formally enforced. The foremost proponent of legal positivism to write in English was John Austin. He defined law as ‘the command of a sovereign’ to be enforced by a sanction (Austin 1998: 133). By this theory, the practice of law pertains to identifying the commands of a specific sovereign and properly using those commands to achieve a desired result. Most people who live under modern legal systems are probably comfortable with the foregoing description of what law is and how law operates, at least in the setting of their own national legal systems. This model actually does not go very far in explaining the phenomenon we call ‘law’ even in a national legal system, and it certainly does not explain international law or law in less developed legal systems.

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Consider the fairly mundane examples of traffic laws. In the United States (or anywhere else in the world for that matter), nearly everyone drives faster than the legal speed limit, and there could never be enough police to compel people to drive at or below this speed. If the government ever attempted to reach this goal, it would fail simply because too many people violate the law. The best that can be achieved is to keep most people driving not very much faster than the official speed limit through selective enforcement targeting those who violate the official speed limit too egregiously (Note 1977). Yet the legally-prescribed limit remains ‘the law’; no one could avoid conviction for speeding on the basis that the law is not effectively enforced or that the designated speed limit is not ‘the law’. Contrast the situation regarding speed limits with the situation regarding traffic lights. People in the United States (and most other developed countries) very seldom simply drive through red lights (although in some areas they often cheat a little); yet if nearly everyone were to disregard red lights, the laws proscribing driving through those lights could no more be enforced than the speed limits. The reason for the difference in behaviour regarding red lights is self-interest: to drive through a red light is far more dangerous than speeding, and would be suicidal if nearly everyone did so. When only a few violate a rule, a few police are adequate to enforce the rule against the violators. Yet one’s emotional response to another’s driving through a red light is not simply that the act is dangerous, including to those in the car violating the rule. Most people perceive driving through a red light (or running a stop sign) as anti-social behaviour, and are supportive of the law as law. H.L.A. Hart, a leading twentieth-century legal positivist, argued that the decision to obey traffic signals, and the sense of moral outrage against those who do not, is legal and not merely a moral attitude because if one were to ask such a driver why s/he acted or thought as s/he did, s/he would refer to the law to explain his/her actions and thoughts (Hart 1961: 136–7). This brief exploration of traffic laws presents us with the problem of the moral authority of law, the ‘puzzle of legitimacy’ (Hart 1961: 86–7). A brief exploration of this puzzle reveals some truths about the functioning of law in general and international law in particular. Now consider the more subtle situation regarding contracts. Contracts, voluntarily defined and assumed obligations, are an essential feature of modern life; without compliance with contracts, the planning that is a central feature of modern economies would be impossible. Every modern state has well-developed laws of contracts, laws that tend to be highly technical. Yet business people, let alone consumers and others, often know nothing about these technicalities, or, even worse, ‘know’ something about these technicalities that is, in fact, false. As a result, one well-known study of the contracting process in Wisconsin found that between 60 per cent and 75 per cent of the contracts made in the state between wholesalers and retailers were not valid under the state’s law of contracts, largely because of errors in the attempt to form a contract (Macaulay 1963).

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Despite this, business between wholesalers and retailers in Wisconsin did not suffer; in fact such ‘legal’ problems are probably typical of most contracts made in most places around the world. Contracts actually are enforced not so much by formal law as by informal sanctions based on the sense of the relevant community, and enforcement often leads to radically different means and results than would be achieved were the parties to resort to legal processes (Macaulay 1985). Indeed, the decision to resort to litigation is a signal of a far greater problem than mere failure to fulfil a particular promise; it signals one’s decision to break off all relations and to impede severely the possibility of entering into future relations with the person whom one sues (Macneil 1978). Karl Llewellyn, the principal drafter of the Uniform Commercial Code (UCC) that now provides the law of sales of goods throughout the United States, embraced this reality by dispensing with the formalities of contract formation in favour of a very flexible standard that would rarely fail because of ignorance of the law (UCC 1990: 1 2–204): 1 2-204.

Formation in General

(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. (3) Even though one or more terms are left open a contract for sale does not fall for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. Cases are legion in which American lawyers and judges have failed to understand the import of this section, in which the lawyers and the judges search for the technical requisites for contract formation in order to be able to identify the precise ‘moment of its making’. Legal professionals seem to have considerable difficulty accepting that their formal rules and processes are often beside the point. Still, an occasional decision reflects the truth that law is not in the formal rules (of which there are many in the UCC) but in the intent of the parties which usually means the customs, usages, and practices of a particular trade or industry (UCC 1990: 1 2–208). Perhaps the most dramatic example of this is the case of Columbia Nitrogen Corp. v. Royster Co. (1971). In Columbia Nitrogen, an elaborate written contract had many pages of fine print. It appeared to commit one party to buy and the other to sell 31,000 tons of phosphates annually over a three-year period. Despite the written contract, the buyer refused to arrange to take delivery when the price of phosphates fell precipitously. The judge and jury concluded, based upon trade usage, that the document

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was not intended as a binding contract but was only a proposal for a contract, should the buyer arrange to take delivery. As Columbia Nitrogen illustrates, the social sense of legitimacy makes a contract (and law generally) binding and effective, and not simply the formal processes that we normally think of when we think of ‘law’ (Ehrlich 1967). Rules such as in UCC 1 2-204 can hardly be characterized as ‘commands of a sovereign’ without seriously distorting the actual functioning of the system. The ‘rule’ rather accepts that the parties themselves form a community and within that community create law for themselves. This rule, while seldom explicit in the common law, is the central tenet of the law of contracts in the civil law tradition: ‘Legally formed agreements have the force of law for the parties.’ (Code Civil 1804: 1 1134) Yet in the UCC, one encounters such ‘rules’ as that if the parties to a sale fail to set the price for the goods sold, the price is a ‘reasonable price’ (UCC 1990: 1 2–305), or that if the parties to a sale fail to indicate when delivery is due, it is due at a ‘reasonable time’ (UCC 1990: 1 2–309(1)), and so on. Such rules indicate that the true basis of contracts and commercial law is the social sense of legitimacy granted to or withheld from particular voluntary conduct. The same notions appear in such diverse legal cultures as that of Botswana, China, and Japan (MacNeil 1986, Mahoney 1977, Wagatauma & Arthur Rosett 1983). For domestic contract disputes, the relevant society is not the nation, the state, or the province, but the more narrowly-defined subset of participants in a particular portion of the economy or perhaps even only the parties to the agreement. The Austinian paradigm that so many now think of as the ‘natural way’ to think about law is a wholly inadequate notion of what law is and how law operates. The point was perhaps best captured by Professor A.L. Goodhart: ‘It is because a rule is regarded as obligatory that a measure of coercion may be attached to it; it is not obligatory because there is coercion.’ (Goodhart 1953: 17) Even modern positivists have conceded as much when they embrace a normative explanation of positive law that does not depend on an identifiable ‘sovereign’ or the presence or absence of a ‘command’ or a ‘sanction’. Hans Kelsen developed a widely influential positivist theory where legitimacy derives from a grundnorm (a ‘basic norm’ or ‘basic law’) that in turn just is, or at least is derived from, societal notions that are not explicable in strictly legal terms (Kelsen 1992: 58–63). H.L.A. Hart sought to explain the origins and functions of law through a ‘habit of obedience’ as the source of law and legitimacy, rather than coercion (Hart 1961: 77–96). These theories, particularly Hart’s ‘habit of obedience’, seem inadequate to capture the sense of legitimacy that underlies law, yet they are closer to the reality of what makes law than the notions of command or sanction that are popularly thought of as constituting law. ‘Law’ then refers to an organic mechanism whereby certain claims of right are elevated to the status of socially established norms and other claims of right are denied standing; it is, in a phrase, a means for society to make sense of things (Geertz 1983: 175). When such normative judgments

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are accepted as law, few will violate the norms and those who do will pay a higher price than someone who violates a mere social or moral convention: the price might well be exposure to official coercion, but it might also entail other social means of enforcement, such as censure or even ostracism. This leaves the question: what is the function of formal law, ‘law on the books’? History provides an answer. Informal law functions successfully when each person in a particular community knows the others in the community and what they are doing; each depends on the others for a wide range of social supports; and each realizes that overreaching too far or too often will cost them the social supports that they need to survive or to thrive. As a society becomes larger and social interaction becomes less personal, the complex web of mutual reciprocities that ensures compliance with purely customary rules breaks down. Formal law, particularly written formal law with specialized processes to make and enforce law, arises as a response to that breakdown. Formal law provides a means to achieve adequate certainty and predictability of right and obligation to people in the society. This was as true of Hammurabi’s Babylon or the Rome of the Decemviri as it was of medieval Islam or modern Europe. A good example is the process whereby during the past 20 years, under the impact of the creation of the European Union (EU) with its ‘single market’ and the resulting competition from English, Dutch, and American law firms, the French method of dealing with hostile corporate takeovers through informal arrangements among a few leading men has broken down to be replaced, both nationally and extranationally, by a highly formal set of legal rules and institutions that mirror the similar institutions that were created 90 years earlier in the United States and about 10 years earlier in the United Kingdom (Trubek et al. 1994). Opportunities to create certainty and at least the appearance of determinate outcomes knowable in advance multiplied enormously with the invention of the printing press (Dellapenna 2000). That invention made possible not only the mass distribution of ‘law’ in a way not before possible, it married formal law to the centralized state for it made centralized control achievable, but only if legal actors (lawyers, jurists, and lay people who pay attention to formal law) were required to follow the letter of the law. From this possibility arose the characteristic form of modern law – nationally unified legal systems that claimed a monopoly over legal questions. From such institutions, intended to enable autocratic rulers to rule by law emerged the important modern notion of the rule of law (the Rechtstaat) (Franck 1992: 110). As this last conclusion suggests, we do not denigrate the formal processes of law. Certainty and predictability are important values, particularly for those of who seek to make firm plans (contracts, as it were) for the future. Formal law also serves the valuable social end of ensuring that the state itself abides by the law created by the state and by society. Yet societies change, sometimes rather more and rather faster than the state would like. These changes affect, directly and immediately, the informal law that underlies much if not all formal law. The problem confronting lawyers

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and judges is to mediate the resulting tension between the need for stability and certainty in the law with the need for flexibility and change to accommodate new social realities (Cardozo 1921, 1928). If, however, there is too little flexibility and change, the formal law loses touch with social realities. As the contract examples demonstrate, many, perhaps most, people will develop alternative mechanisms for recognizing and enforcing obligations. Too much flexibility and change, however, makes planning and legal control impossible. Lurking behind any discussion of formal law is the question of how effective such regimes actually are. An effective legal framework cannot be created simply by decreeing it, or by importing a foreign model that works well in the country in which it originated. The law in every country is ‘path-dependent’, a result of what has gone before as well as what is sought for the future. At the extreme, even in contemporary societies formal law may play little or no real role in structuring social relations or resolving disputes (Dellapenna 1997). In each society, one must learn who the lawyers and judges are, to whom they are connected, and what their role in the state and the economy is. A judiciary or other dispute resolution process functions effectively only when it is embedded in the structures of social, political, and economic power. Yet that embedding might serve only to entrench existing power structures to the disadvantage of innovators or the poorly connected. With the forgoing concept of law in mind, one can see that a society (of people, of communities, or of states) is never without law, but that law can take a myriad of forms and express highly varied content. We must be weary of overstressing formal legal structures except when they actually reflect how water is managed and disputes over water are resolved. In many ways our discussion of law here mirrors the ongoing discussion on governance, where governance scholars argue that there is a shift from centralized, topdown, hierarchical approaches to more diffuse systems of rule-making in society. This is also in line with discussions on global administrative law, where scholars are arguing that international law is also emerging not just from legislative and judicial processes but also from the executive (Kingsbury, Krisch & Stewart 2005, Krisch & Kingsbury 2006). The shift from top-down towards diffused systems of governance is also so in water governance (Gupta 2011). We can now approach the evolution of water law and understand how pervasive and varied it is even while searching out patterns of consistency across societies. If we find such patterns, it is the consistency and not the variations that demand explanation. THE BEGINNINGS OF FORMAL WATER LAW Today, water law as found around the world is a patchwork of local customs and regulations, national legislation, regional agreements, and global

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treaties, together creating a global legal governance framework for water. This framework results from complex historical evolutionary processes. Given how broadly we have defined water law, there probably never was a society that was without water law of some sort. Indeed, one can trace formal water laws back to the earliest human civilizations, all found in river basins: the Yellow River in China, the Indus River, the Nile River in Egypt, and the Euphrates and Tigris Rivers in Mesopotamia. So central was the need to regulate water consumption in these river basins – basins in which exotic rivers flowed across dry, even desert, areas – that Karl von Wittfogel would later conclude that this need drove the emergence of basin-wide (or near basin-wide) empires in each region (Wittfogel 1981). Regardless of whether one accepts Wittfogel’s claims, we do have some evidence of the earliest laws relating to water from each region. The most developed record of these laws is found in Mesopotamia, where vast numbers of records of contracts and legal cases have been excavated by archaeologists. Several codes of laws inscribed on steles have also been recovered, the best known of which is the Code of Hammurabi (1738 BCE ) (King 1910: 53–6). These laws reveal a process of communal management, although the actual provisions of the various codes were limited to liability for flooding a neighbour’s fields (Kornfeld 2009: 29–33). The ancient Hindu Arthashastra (c.300 BCE) are similarly limited (Rangarajan 1992), providing that the water belonged to the king but authorizing private uses on payment of a tax so long as the private actor properly maintained the infrastructure, with severe penalties for causing injury to another water use or water user (Cullet & Gupta 2009: 160). The slightly later Laws of Manu (c.200 BCE ) are to similar effect (Cullet & Gupta 2009: 159, Doniger & Smith 1991). The Law of Moses (c.1000 BCE) was gradually elaborated in the rabbinical tradition, but remained focused on a few simple rules of rights to use water and the duty to protect its purity (Laster et al. 2009). The idea of sovereignty did not play a role in this period. These and later water law systems reflect the cultural origins of law. Water law developed in a highly contextual manner reflecting the history, geography and political systems of the countries concerned. As a result, today there are almost 200 different national water law systems, each with country-specific characteristics. At the same time, these water law systems exhibit certain recurring patterns. Some of these are purely cultural, reflecting the predominant forms of social structure of the time. Foremost among these in ancient times is that the laws are generally presented as having been divinely revealed. Other features reflect the nature of the resource and patterns of use. Thus the right to use water is variously granted to owners of riparian land (land contiguous to the water source) or because of temporal priority in putting the water to use (Scott & Coustalin 1995). The riparian approach generally required a sharing of the water, while the priority approach often did not. There would frequently be some mixing of the two principles, and sometimes

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preferences were given to particular types of use (e.g., irrigation versus municipal uses). And from the beginning, the laws addressed questions of pollution as well as the allocation to particular uses. Perhaps because these laws tended to be most developed in arid or semi-arid regions, they emphasized allocation rather than pollution (Teclaff 1985). HOW WATER LAW SYSTEMS SPREAD ACROSS THE PLANET As already noted, the nature of the water resource and the nature of the uses of the resource to some extent provide for a measure of unity to patterns of water law. Still, there is continuing debate about what sort of water law is best, leaving aside the possibility of mixing elements of the fundamentally different approaches of riparianism and temporal or other sorts of priority (Dellapenna 2008b, Trelease 1974). In addition to these possibilities, the purely social, or perhaps one should say jurisprudential, features of water law systems create the possibility of receiving, voluntarily or otherwise, the water law from another state or nation. Several processes served to spread principles of water law from their place of origin to different parts of the world. These include: i) the spread of civilizations or cultures (Kornfield 2009); ii) the spread of religion, important when laws are seen as a result of divine revelation (Naff 2009, Laster et al. 2009); iii) the impact of conquest and colonization, including the spread and decline of Communism (Cullet & Gupta 2009, Farias 2009, Kidd 2009, McCay & Marsden 2009, Nilsson & Nyanchaga 2009, van der Zaag 2009); iv) the widespread codification of legal principles in the nineteenth century (Watson 1993); v) the rise of engineering and of epistemic communities (Biswas & Tortajada 2009, Gupta 2009); vi) the rapidly spreading influence of environmentalism (Zellmer 2009); and vii) the second wave of globalization (Gupta 2003), with elements often marketed by aid agencies and development banks (Dellapenna 2008b). These various influences overlap and often continue to co-exist within a single society. The result today is a complex set of national water law regimes composed of overlapping and contradictory elements derived from one or more of the above processes. In many nations, there remain residual indigenous laws in conflict with water laws imposed by colonial regimes or imported from ‘more advanced’ systems, all subsumed in attempts at water law reform deriving from international legal standards or the prevalent thinking of epistemic communities (Cullet & Gupta 2009, Farias 2009, Kidd 2009, Nilsson & Nyanchaga 2009, van der Zaag 2009). As a result, in many nations plural systems of water law compete for application (Cullet & Gupta 2009, Gupta & Leenderste 2005, Nilsson & Nyanchaga 2009). As these sources indicate, it is not unusual to find some communities of water users still applying indigenous law to manage their water resources even when that law lacks formal legal recognition, while other communities

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apply the formal law left from a colonial regime, and yet other communities seek to apply markets or otherwise to embrace whatever legal thinking appears most modern. The resulting pluralism can be seen as positive in recognizing interests that cannot be aggregated in Universalist approaches (Krisch 2006: 248) or as negative in the fragmentation of interests and policies that leads to a breakdown in legal approaches. Recent efforts to integrate different regulations into one comprehensive water law sometimes succeed for better (Laster & Livney 2009) or worse (Kotov 2009). In other cases, they founder on the resistance of those who are committed to the earlier regimes (Cullet & Gupta 2009, Farias 2009, Nilsson & Nyanchaga 2009). It would also perhaps not be out of place to mention here that recent ‘land grabbing’, either by the private sector or even by the public sector in order to reserve land for protected areas or for biofuel/plantation production (Gupta et al. (eds) 2013), has also led to loss of customary access to land and water for local people. Today the almost 200 national legal regimes define the right to use water in terms of the relationship of the use to the water source (Gupta & Dellapenna 2009). As with ancient water laws, the relationship might be based on the location of the use (a riparian connection), the timing of the use (a temporal or seasonal priority system), or the nature of the use (preferences for the most socially important uses). The resulting rights to use water are often characterized as property rights, which allow a somewhat different typology of water rights. They might be a system of: i) common property (where the resource is shared freely among those with lawful access to it, without collective decision making); ii) private property (where defined water rights are allocated to particular users who have considerable control over the water allocated to their use); or iii) community or public property (where water is shared among users but is managed jointly by those entitled to share in the resource) (Dellapenna 2010, Ostrom 1990). Each of these types of property must recognize to some extent at least the public nature of water as a natural resource, and therefore even in the most thoroughly privatized water property regime there will be regulations in order to enforce the property or water right regime, in order to protect the resource from pollution, and (recently, at least) to promote or preclude markets. In recent decades, markets based on a private property regime for water resources have been promoted as the best way to manage the resource (Griffin 2006). This has generated considerable controversy about the utility of markets (Dellapenna 2000, 2008). Emerging recognition of a human right to water has been pressed as a counter to the push for markets (UN Res. 64/292 2010, Gupta et al. 2010). THE EVOLUTION OF SUPRANATIONAL WATER LAW In a very real sense, the creation of supranational water law systems is as old as the earliest recorded bodies of formal water law. Supranational systems

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were created by the hydraulic empires that so impressed Wittfogel (Wittfogel 1981). These supranational systems generally imposed imperial rules on certain limited questions of water management while deferring to local customs or laws for the day-to-day management of water resources. Such hybrid, supranational regimes were created and recreated down through centuries unless, as occasionally happened, particularly in the eighteenth to twentieth centuries, the imperial system became strong enough to displace any vestiges of indigenous law (Kotov 2009). The demise of most empires in the second-half of the twentieth century did not mean the end of supranational systems. Instead, the twentieth century saw states voluntarily creating supranational water laws. Today, the EU is the leading example of supranational water law (Canelas de Castro 2009). The establishment of the European Economic Community (the predecessor of the EU) in 1957 led to the coordination of water law within the region. Water law has been seen more as a sub-set of environmental law within the European Economic Community/European Community/EU context as there was no formal mandate for water governance. It was thus included in the six Environmental Action Programmes adopted since 1973. In the first phase (1973– 88), water policy and law focused on water quality issues and standards (e.g., Directives on Drinking Water; Bathing Water; and the Quality of Fresh Waters Needing Protection or Improvement in Order to Support Fish Life). Following the formal mandate to legislate brought about by the 1987 Single European Act, in the second phase (1988– 95) the focus shifted to emission standards (manure disposal) and water treatment (e.g., Directives on Cadmium; Hexachlorocyclohexane; Nitrates; Integrated Pollution Prevention and Control; and Urban Waste Water). In the third phase, the EU created a comprehensive policy through its Water Framework Directive 2000. This Directive, which applies to all EU member states, has an eco-centric logic, aims at good status for all water bodies and at management at the river basin scale, and includes a wide variety of instruments (Aubin & Varone 2004). The EU complemented this strategy with a Marine Strategy Framework Directive in 2008. Another type of supranational system is the growing number of river basin organizations and boundary water commissions. Although such river basin organizatoins rarely have strong supranational law making functions, they are increasingly part of the growing system of international administrative law. THE EVOLUTION OF INTERNATIONAL WATER LAW International water agreements can be traced back at least 800 years. A true international water law developed only in the past two centuries. International law in general provides the institutional framework and rules for treatymaking, interpretation, and dispute resolution, for countries to work together peacefully (Shaw 2008). International water law similarly empowers

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international actors by legitimating their claims, but it also limits the claims they are allowed to make (Dellapenna 2008a). International water law as a global phenomenon is found in customary international water law. Customary international law develops through a process in which states make a claim and other states put forth counterclaims until they reach an agreement (Danilenko 1993: 75–82). Identifying customary law is an informal and challenging process. For the customary international law of water resources, one traces its evolution largely through increasingly common treaties that began in the late eighteenth century with a focus on freeing up navigation, then turned into various forms of allocation treaties with the spread of the industrial revolution in the nineteenth century, and began moving towards cooperative or joint management regimes in the twentieth and twenty-first centuries (Dellapenna 1994). Customary international water law as we find it now is based on principles that in some respects resemble the common principles that underlie national water laws, but take on different colourations in order to apply to an incompletely organized community of states. Customary international law today includes three principles. First, the principle of limited territorial sovereignty over national waters that limits the rights of states and requires them to consider the needs of other riparians (Dellapenna 2001). This principle emerged through a dialectic process where the claim of absolute territorial sovereignty (absolute control over national waters) competed with absolute integrity of state territory (absolute rights over waters flowing into a state from elsewhere, i.e., that waters flowing along or across national boundaries cannot be altered in terms of quantity and quality from what would naturally have occurred). Today, limited sovereignty is expressed in terms of the principle of equitable utilisation (International Law Association (from here on, ILA). ILA 1966 Article IV, ILA 2004 Article 12, UN 1997 Article 5), i.e., the need to share international waters according to principles of equity (fairness). The second principle is the no-harm principle that emerges from the Roman law maxim, sic utero tuo ut alienum non laedes – ‘Do not use your property so as to injure the property of another’ (Dellapenna 2008a). The third principle is the obligation to settle disputes peacefully. Some states also claim historic rights, i.e. the right to use the quantity of water they have been using (Brunne ´e & Toope 2002). Such disputes arise especially between countries at different levels of development – e.g., Egypt and Ethiopia (Dellapenna 1996, Sanchez & Gupta 2011). The codification of the customary international law took a major step forward with the International Law Association’s approval of the Helsinki Rules on the Uses of International Rivers (ILA 1966). The UN General Assembly asked the International Law Commission to bring greater certainty to this body of law by preparing a codification of international water law based in large part on the Helsinki Rules. The result was the UN Watercourses Convention, approved by a vote of 103-3 on May 21, 1997

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(UN 1997). The convention achieved the 35th ratification needed to enter into force for the ratifying states in May 2014. Even before it entered into force, it was seen as an authoritative, if conservative, reflection of existing customary water law (Gabcˇ`kovo-Nagymaros ı Project case: 140), and it continues as such today for nations that have not ratified it. This convention adopts the principles of limited sovereignty (equitable utilisation), no harm, and peaceful resolution of disputes, with great emphasis on procedures states are to follow. It recognizes the right of all riparian states to engage in discussions around a shared watercourse to deal with existing situations where actions or agreements by or between some riparians have repercussions on others (see Salman & Uprety 2002). The convention, aiming to serve as a global comprehensive approach to water governance, is more of a limited framework and although it includes environmental values and some of the modern ideas of water governance, it was arguably out-ofdate when it was adopted as it scarcely referred to legal developments in the environmental, human rights, and investment arenas, but nevertheless it has influenced regional law in southern Africa, South Asia, and Europe (Farrajota 2009, McCaffrey 2007, van der Zaag 2009). Increasingly regional agreements have emerged as additional sources of law for participating states as well as resources for inferring a developing customary international law. A major regional and increasingly globally relevant source of water law is the 1992 UN Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes (United Nations Economic Commission for Europe (UNECE), 1992). This treaty covers transboundary surface waters and groundwater. It obliges parties to prevent, control, and reduce transboundary impacts and to use such waters ‘with the aim of ecologically sound and rational water management, conservation of water resources and environmental protection’. It also embraces the principle of equitable utilisation, but the emphasis is on environmental protection – the ‘no harm’ side of the equation in general customary international water law. Its 1999 protocol (UNECE 1999) focuses on health aspects with respect to water and includes a range of environmental and water-related principles. Since the convention is now open to universal participation, it is now competing with the UN Watercourses Convention in leading global water governance (Dellapenna et al. 2013). There are hundreds of other bilateral and multilateral international water agreements (Oregon State University 2002). These agreements increasingly show the development of administrative law where legislative and judicial functions are giving way to administrative rule-making on a day-to-day basis by river basin commissions being set up for the purpose (Farrajota 2009). International adjudication of water disputes is another rich and old area, with cases relating to water transfers between France and Spain (Lake Lanoux Arbitration 1957) and the no-harm principle (Trail Smelter Arbitration 1941), along with several others (Castillo-Laborde 2009).

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The most recent effort to pull all of this together in a comprehensive codification is the Berlin Rules on Water Resources, approved by the International Law Association in 2004 to replace the Helsinki Rules (ILA 2004). This non-binding document integrates the latest insights from environmental, humanitarian, human rights, and resource law. These comprehensive rules cover all national and international fresh waters and related resources (the aquatic environment) and thereby penetrate within national jurisdictions. The Berlin Rules includes the principles of public participation, the obligation to use best efforts to achieve both conjunctive and integrated management of waters, and the duties to achieve sustainability and the minimization of environmental harm. It identifies the rights and duties of states and persons, the need for environmental impact assessments, and covers extreme situations including accidents, floods, and droughts. The Berlin Rules are grounded in existing law but also reflect the direction in which global water law is heading. Groundwater traditionally has been neglected by national and international water law. The Berlin Rules (ILA 2004: Chapter VIII) provides the first attempt at a comprehensive codification of the customary international law of groundwater. The UN Law Commission subsequently adopted draft articles on transboundary aquifers that was noted but not approved by the UN General Assembly (UN Res. 63/124 2009). THE EVOLUTION OF SOVEREIGNTY IN WATER LAW Let us now turn to examine how the concept of sovereignty has evolved in water law. It became important as the idea of the nation state came into prominence, particularly with the Treaty of Westphalia in 1648 and the works of scholars such as Machiavelli, Luther and Hobbes. This notion influenced both national water law systems and transboundary water law from the seventeenth century onwards. Colonized countries lost their sovereignty and also their right to control their own waters to their colonizers. After World War II, the concept remained a corner stone of modern states and has been used by states to claim ‘permanent sovereignty’ over their natural resources (UN 1962). Through the centuries after 1648, the increasing emphasis on sovereignty led to confrontation of claims of absolute territorial sovereignty with claims to the absolute integrity of state territory. The environmental movement strengthened the emerging tenet in law that states should not cause harm to others, although the application of this principle remains contested. One way to conceive of the rise of supranationalism within the EU or via river basin organizations is that sovereignty is partly sacrificed for the greater good of all the parties concerned. Another way to conceive of the rise of supranationalism is that states are choosing to realize their sovereignty by expressing it through cooperative supranational institutions.

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The second wave of globalization has led to neo-liberal dominance, which challenged concepts of sovereignty further by marginalizing the role of the state. Ironically, markets needed stronger regulation of international contracts and this led to a spate of bilateral and multilateral agreements on trade and investments (e.g., World Trade Organization 1994). The neoliberal approach and enhanced private sector participation in water management led to legal challenges and inspired a reaction in the form of the human rights approach that tries to pierce the veil of sovereignty to protect customary and modern access rights of the most vulnerable in society (UN 2009, Gupta et al. 2010). As we move into the future, water is likely to be framed more and more in terms of its ‘global public good’ characteristics, its ecosystem services, and its links to energy, food and climate (Kaul et al. 1999). The latter has led to the replacement of the integrated water resource management jargon with nexus jargon (Gupta et al. 2013) – but under either form of jargon it is important to understand the relationships between different issue areas. As the subject matter of water reaches the global scale in administrative and spatial terms, it will challenge the notions of sovereignty as we know it, and law itself will have to rediscover itself in an effort to cope with it. Some might see legal systems – local, national, supranational and international – as impediments to the ability to cope adequately with the water needs of the coming century, but our history of water law shows that the legal system is able, if slowly, to rise to the challenge of change. Increasingly as issues of water governance become very technical, technocratic solutions may be proposed and may lead to growing formal and informal administrative law and governance in the water field. Such administrative law may result from the adoption of ideological norms (integrated water resources management) with a strong technocratic input (optimizing water management) which might be adopted by various water management bodies as a result of international development cooperation processes but without a formal international legal consensus on it. CONCLUSION Despite talk of ‘water wars’, water resources tend not to be the key reason for conflict (Kalpakkian 2004). Instead, at the national, regional, and international levels water law has been instituted to mediate conflict and resolve disputes. Yet after 5,000 years of water law history, water law remains tied to old models that, at least at a general level, can be traced back to the earliest extant historical records. A large number of challenges exist on a worldwide basis to water management and to water law. Global water problems such as access, sanitation, pollution, ecosystem destruction and changing flow regimes as a result of the cumulative effects of dams and the increasingly disrupted climate continue to face communities at all levels

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of social organization. Agriculture and bio-fuels will increase the demand for water and land and may lead to new policy configurations that further compromise customary land and water ownership. Governance systems themselves are in a state of flux. While there is a shift in the locus of governance, there is no corresponding shift in the rules of engagement to guarantee legality, legitimacy, accountability, transparency, and the rule of law. Will accelerating efforts to reform water governance lead to greater enlightenment or confusion? Against this background noise, water law is slowly moving forward with increasing numbers of regional agreements, more administrative law frameworks, and more joint water bodies at all levels of governance from community through to global levels. Legal systems, however slow their development may be, have the authority of history behind them and may ultimately provide the vehicle for problem solving and conflict resolution in the twenty-first century. In the mean time, global governance will have to grapple with a number of issues – whether private participation in water will promote solutions to access issues; whether public participation is able to account for the common good; whether non-state actors can more successfully govern political goods like water than state actors. Whatever the answers, one can rest assured that water law will figure prominently in the inclusion of the results in water management systems and social justice processes. REFERENCES Aubin, D. and Varone, F., ‘The Evolution of European Water Policy’, in Kissling-Na¨f, I. and Kuks. S. (eds), The Evolution of National Water Regimes in Europe: Transitions in Water Rights and Water Policies (Dordrecht: Kluwer Academic Publishers, 2004), pp. 49–86. Austin, J. in H.L.A. Hart (ed.), The Province of Jurisprudence Determined (Indianapolis, IN: Hacket Publishers, 1998). Biswas, A.K. and Tortajada, C., Impacts of Megaconferences on the Water Sector (London, UK: Springer Verlag, 2009). Brunne´e, J. and Toope, S.J., ‘The Changing Nile Basin Regime: Does Law Matter?’, Harvard International Law Journal, 43 (2002), pp. 105–59. Cardozo, B., The Nature of the Judicial Process (New Haven, CT: Yale University Press, 1921). ———, The Paradoxes of Legal Science (New York, NY: Columbia University Press, 1928). Canelas de Castro, P., ‘European Community Water Policy’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 227–44. Cullet, P. and Gupta, J., ‘India: The Evolution of Water Law and Policy,’ in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 21–36. Danilenko, G.M., Law-making in the International Community (Dordrecht: M. Nijhoff, 1993).

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Dellapenna, J.W., ‘Treaties as Instruments for Managing Internationally Shared Water Resources: Restricted Sovereignty vs. Community of Property’, Case Western Reserve Journal of International & Comparative Law 26 (1994), pp. 27–56. ———, ‘Rivers as Legal Structures: The Examples of the Jordan and the Nile’, Natural Resources Journal 36 (1996), pp. 217–50. ———, ‘The Lesson of the Triple-Twisted Pine: Plum Blossoms on Mountain Peaks and the Future of the Rule of Law in Hong Kong’, Vanderbilt Journal of Transnational Law 30 (1997), pp. 637–73. ———, ‘The Importance of Getting Names Right: The Myth of Markets for Water’, William & Mary Environmental Law & Policy Review 25 (2000), pp. 317–77. ———, ‘The Customary International Law of Transboundary Fresh Waters’, International Journal of Global Environmental Issues 1 (2001), pp. 264–305. ———, ‘International Water Law in a Climate of Disruption’, Michigan State Journal of International Law 17 (2008a), pp. 43–94. ———, ‘Climate Disruption, the Washington Consensus, and Water Law Reform’, Temple Law Review 81 (2008b), pp. 383–432. ———, ‘Global Climate Disruption and Water Law Reform’, Widener Law Review 15 (2010), pp. 409–45. ———, J. Gupta, L. Wenjing, and F. Schmidt, ‘Thinking about the future of Global Water Governance’, Ecology and Society, 18/3 (2013). Doniger, W. and Smith, B.K. (trans. & eds) The Laws of Manu (ca. 200 BCE) (New York, NY: Penguin Books, 1991). Ehrlich, E. (reprint ed.) Grundlegung zu ¨ r Soziologie des Rechts, 3rd ed. (Berlin: Dunker & Humbolt, 1967). Farias, P.J.L., ‘Brazil: The Evolution of the Law and Politics of Water’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 69–86. Farrajota, M.M., ‘International Cooperation on Water Resources’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 337–52. Franck, T.M., Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (Princeton, NJ: Princeton University Press, 1992). Geertz, C., Local Knowledge: Further Essays in Interpretive Anthropology (New York, NY: Basic Books, 1983). Goodhart, A.L., English Law and the Moral Law (London: Stevens, 1953). Griffin, R.C., Water Resource Economics: The Analysis of Scarcity, Policies, and Projects (Cambridge, MA: MIT Press, 2006). Gupta, J., ‘The Role of Non-State Actors in International Environmental Affairs’, Heidelberg Journal of International Law, 63 (2003), pp. 459–86. ———, ‘Developing Countries: Trapped in the web of sustainable development governance: Performance, Legal Effects and Legitimacy’, in O. Dilling, M. Herberg and G. Winter (eds). Transnational Administrative Rule-Making; Performance, Legal Effects and Legitimacy (Oxford: Hart Publishing, 2011), pp. 305–30. Gupta, J., Ahlers, R. and Ahmed, L., ‘The Human Right to Water: Moving Toward Consensus in a Fragmented World’, Review of European Community and International Environmental Law 19 (2010), pp. 294–305.

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Gupta, J., Akhmouch, A., Cosgrove, W., Hurwitz, Z., Maestu, J., and Unver, O., ‘Policymakers’ reflections on water governance issues’, Ecology and Society, 18/1(2013), 35 [online] URL: http://www.ecologyandsociety.org/vol18/iss1/art35/ Gupta, J., and Dellapenna, J.W., ‘The Challenge for the Twenty-First Century: A Critical Approach’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 391–410. Gupta, J., and Leenderste, K., ‘A Multi-Level, Dynamic Approach to Water Law and Policy’, in Amaya, O.D., Milla, A., and Gracia, M.D.P. (eds), Incorporation of the IWRM Principles in Legal Frameworks in Latin America: Experiences and Lessons Learned (Bogota: Universidad Externado de Colombia, 2005), pp. 17–39. Gupta, J., van der Grijp, N. and Kuik, O. (eds), Climate Change, Forests and REDD: Lessons for Institutional Design (London; New York: Routledge, 2013). Hart, H.L.A., The Concept of Law (Oxford, UK: Clarendon Press, 1961). Jackson, G., Blood in My Eye (New York, NY: Random House, 1972). Kalpakkian, J., Review of Identity, Conflict and Cooperation in International River Systems (Aldershot, UK: Ashgate Publishers, 2004). Kaul, I., Grunberg, I., and Stern, M., Global Public Goods: International Cooperation in the 21st Century (Oxford, UK: Oxford University Press, 1999). Kelsen, H. (Paulson, B.L. and Paulson, S. trans.), An Introduction to the Problems of Legal Theory (Oxford, UK: Clarendon Press, 1992). Kidd, M., ‘South Africa: The Development of Water Law’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009) pp. 87–104. King, L.W. (trans.), The Code of Hammurabi (London, UK: British Museum, 1910), available at http://www.yale.edu/lawweb/avalon/medieval/hamframe.htm. Kingsbury, B., Krisch, N. and Stewart, R.B. (2005) ‘The Emergence of Global Administrative Law’ Law and Contemporary Problems 68 (2005), p. 15. Kissling-Na¨f, I. and Kuks, S., Introduction to Institutional Resource Regimes’, in Kissling-Na¨f, I. and Kuks, S. (eds). The Evolution of National Water Regimes in Europe: Transitions in Water Rights and Water Policies (Dordrecht: Kluwer Academic Publishers, 2004), pp. 1–24. Kornfeld, I., ‘Mesopotamia: A History of Water and Law’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 157–73. Kotov, S., ‘Russia: Historical Dimensions of Water Management’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 139–56. Krisch, N., ‘The Pluralism of Global Administrative Law’. European Journal of International Law 17 (2006), pp. 247–78. ———, ‘The Pluralism of Global Administrative Law’ European Journal of International Law 17 (2006), p. 1. Krisch, N., and Kingsbury, B., ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’, European Journal of International Law 17 (2006), p. 1. Laster, R., Aronovsky, R.D., and Livney, D., ‘Water in the Jewish Legal Tradition’, in Dellapenna, J. and Gupta, J., The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 53–66.

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Laster, R., and Livney, ‘Israel: The Evolution of Water Law and Policy’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009) pp. 121–37. Macaulay, S., ‘Non-contractual Relations in Business: A Preliminary Study’, American Sociological Review 28 (1963), pp. 55–67. ———, ‘An Empirical View of Contract’, Wisconsin Law Review (1985), pp. 465–482. McCaffrey, S.C., The Law of International Watercourses: Non-navigational Uses, 2nd ed. (Oxford, UK: Oxford University Press, 2007). Macneil, I., ‘Contracts: Adjustments of Long-Term Economic Relations under Classical, Neoclassical, and Relational Contract Law’, Northwestern University Law Review 72 (1978), pp. 854–905. MacNeil, R.W., ‘Contract in China: Law, Practice, and Dispute Resolution’, Stanford Law Review 36 (1986), pp. 303–97. Mahoney, N., ‘Contract and Neighborly Exchange among the Birwa of Botswana’, Journal of African Law 21 (1977), pp. 40–65. McCay, J. and Marsden, S., ‘Australia: The Problem of Sustainability in Water’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 175–88. Naff, T., ‘Islamic Law and the Politics of Water’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 37–52. Nilsson, D. and Nyanchaga, E.N., ‘East African Water Regimes: The Case of Kenya’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 105–20. Notes, ‘Laws That Are Made to Be Broken: Adjusting for Anticipated Noncompliance’, Michigan Law Review 75 (1977), pp. 687–716. Oregon State University, Atlas of International Freshwater Agreements (Nairobi: UNEP, 2002). Ostrom, E., Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge, UK: Cambridge University Press, 1990). Rangajaran, L.N. (trans. 1992). The Arthashastra (ca. 300 BCE) (New Delhi: Penguin Books, 1992). Salman, S.M.A. and Uprety, K., Review of Conflict and Cooperation on South Asia’s International Rivers: A Legal Perspective (London: Kluwer Law International, 2002). Sanchez, N. and Gupta, J., ‘Recent changes in the Nile Region may create an opportunity for more equitable sharing of the Nile River Waters’, Netherlands International Law Review 58/3 (2011), pp. 363–85. Scott, A. and Coustalin, G., ‘The Evolution of Water Rights’, Natural Resources Journal 35 (1995), pp. 821–979. Shaw, M.N., International Law, 6th ed. (Cambridge, UK: Cambridge University Press, 2008). Teclaff, L., Water Law in Historical Perspective (Buffalo, NY: W.S. Hein, 1985). Tienhaara, K., ‘The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy’, PhD thesis (Amsterdam: Vrije Universiteit, 2008). Trelease, F.J., ‘The Model Water Code, the Wise Administrator, and the Goddam Bureaucrat’, Natural Resources Journal 14 (1974), pp. 207–29.

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van der Zaag, P., ‘Southern Africa: Evolving Regional Water Laws and Policies’, in Dellapenna, J. and Gupta, J. (eds), The Evolution of the Law and Politics of Water (New York, NY: Springer, 2009), pp. 245–61. Wagatauma, H. and Rosett, A., ‘Cultural Attitudes towards Contract Law: Japan and the United States Compared’, UCLA Pacific Basin Law Journal 2 (1983), pp. 76–97. Watson, A., Legal Transplants: An Approach to Comparative Law, 2nd ed. (Athens, GA: University of Georgia Press, 1993). Winter, G. (ed.), Multilateral Governance of Global Environmental Change (Cambridge, UK: Cambridge University Press, 2006). Wittfogel, K.A. (reprint ed.) Oriental Despotism: A Comparative Study of Total Power (New York, NY: Vintage Books, 1981).

CASES Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3 (4th. Cir. 1971). Gabcˇ`ıkovo-Nagymaros Project (Hungry/Slovakia), Judgment of 25 Sept. 1997, 1997 ICJ no. 92. Lake Lanoux Arbitration (France v. Spain), 24 ILR 101 (1957). Trail Smelter Arbitration (United States v. Canada), 11 March 1941, 3 R.I.A.A. 1907 (1941).

OTHER LEGAL MATERIALS Code Civile (France) (1804). Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, UN Doc E/ECE/1267, UN Treaty Series, 1936, pp. 269–356. EU Water Framework Directive, EC Directive 2000/60/EC. International Law Association (ILA), ‘The Helsinki rules on the uses of the waters of international rivers’, in Report of the Fifty-Second Conference of the International Law Association (London: International Law Association, 1966). ———, ‘The Berlin rules on water resources’, in Report of the Seventy-First Conference of the International Law Association. (London: International Law Association, 2004). International Law Commission, ‘Draft articles on the law of transboundary aquifers’, in Report of the Fifty-Eighth Meeting of the International Law Commission (Supplement No. 10), UN Doc. A/61/10, 2006. Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 June 1999, London, United Kingdom. Southern African Development Community Revised Protocol on Shared Watercourses in the Southern African Development Community, of 7 August 2000, reprinted in International Legal Materials 40 (2000), pp. 321–33. Uniform Commercial Code (12th ed.) (Philadelphia, PA: American Law Institute/ National Commissioners of Uniform State Laws, 1990), available at http://www. law.cornell.edu/ucc/ucc.table.html.

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UN 1962. Permanent Sovereignty over Natural Resources. GA res. 1803 (XVII), 17 U.N. GAOR Supp. no.17 at 15, UN Doc. A/5217 UN 1997. UN Convention on the Non-navigational Uses of International Watercourses, UNGA Res. A/51/49, approved 21 May, 1997, available at http://untreaty.un.org/ilc/ texts/instruments/english/conventions/8_3_1997.pdf. UN 2009. UN Res. 63/124. The Law of Transboundary Aquifers, UNGA Res/63/124, approved 15 January 2009, available at http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N08/478/23/PDF/N0847823.pdf?OpenElement. UN 2010. UN Res. 64/292. The Human Right to Water and Sanitation, UNGA/ Res/64/292, adopted 3 August 2010, available at http://www.un.org/ga/search/ view_doc.asp?symbol¼A/RES/64/292. UNECE 1992. Convention on the Protection and Use of Transboundary Watercourses and International Lakes, signed 17 March 1992, available at http://www.unece.org/fileadmin/DAM/env/water/pdf/watercon.pdf. WTO 1994. Agreement Establishing the World Trade Organization, approved 15 April 1994, 1867 UNTS 154 (1994), available at http://www.wto.org/english/ docs_e/legal_e/04-wto_e.htm.

3

The Siren Song of Sovereignty in International Water Relations

Stephen McCaffrey INTRODUCTION Historically, one of the great theoretical dilemmas of international water law was how to reconcile the sovereignty of states over their territory with their obligations under international law vis-a `-vis other states with which they shared freshwater resources. States, usually those that are upstream on a successive international watercourse, have occasionally asserted territorial sovereignty as a defence against complaints from co-riparians concerning their use of shared watercourses. The argument is, in essence, that a state’s sovereignty over its territory allows it to use an international watercourse however it wishes while the waters are within its borders, regardless of the effects of such use on other riparian states. Such arguments have been the exception rather than the rule, however, and they have not been generally accepted. Moreover, in the most famous instance of such a reliance on territorial sovereignty, the claim ultimately did not figure in the resolution of the dispute that gave rise to it. It is therefore extraordinary that the International Law Commission (ILC), the United Nations expert body charged with the codification and progressive development of international law, would give pride of place in its draft articles on the Law of Transboundary Aquifers to the ‘sovereignty of aquifer states’. This chapter will first examine the concept of sovereignty itself to determine whether it is applicable to water resources that are shared with another state or states. It will then visit the controversy that gave rise to the notorious ‘Harmon Doctrine’ in the late nineteenth century and recall how that dispute was in fact resolved. Against this background, the chapter will examine the appropriateness of the ILC’s invocation of sovereignty in the context of transboundary aquifers, an increasingly important form of shared fresh water. Finally, the chapter will draw conclusions about the applicability of the concept of sovereignty to shared freshwater resources in general.

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THE MEANING OF ‘SOVEREIGNTY’ IN INTERNATIONAL LAW Modern international law may be said to have arisen in the sixteenth and seventeenth centuries, influenced by the Renaissance (fourteenth to seventeenth centuries) and the Reformation (sixteenth century), as well as the great religious conflict known as the Thirty Years’ War (1618–48) (Brierly 1963: 1–7, Nussbaum 1954). The Peace of Westphalia of 1648, which brought this war to an end, is generally thought to mark the rise of the modern secular state and with it, international law.1 The peace effectively brought the Holy Roman Empire to an end and promoted its former members ‘to an international status approximating sovereignty’ (Nussbaum 1954: 115–16). Yet it was before this landmark event, while the forces of the Reformation were challenging the dominance of the church and strengthening civil authority, that the doctrine of sovereignty was first articulated. In 1576 Jean Bodin, a French law professor and political philosopher, published De Republica, arguing that a strong French monarchy was necessary to combat the factional conflicts and civil war that afflicted France during his time. On the basis of his observations of the situation in France and developments that were taking place throughout Western Europe, Bodin concluded that a strong, supreme sovereign – i.e., a personal monarchy – was necessary to statehood. Thus there could be only one final source of authority; for Bodin, ‘a confusion of uncoordinated independent authorities must be fatal to a state’ (Brierly 1963: 8). It is perhaps evident even from this brief description that Bodin’s concept of sovereignty was concerned with the internal political order of a state, not the relations between states. Nevertheless, ‘what was originally an attribute of a personal ruler inside the state came to be regarded as an attribute of the state itself in its relations to other states’ (Brierly 1963: 11). This view has been aptly characterized by one distinguished commentator as ‘the mythology of sovereignty’ (Henkin 1994). It is this distortion of the concept of sovereignty that has created mischief in the field of international watercourse law. Despite the fact that it has been asserted by a few states to justify their use of shared water resources, sovereignty has never been cited by the International Court of Justice (ICJ) or other authoritative body as a guiding principle that is applicable to the allocation of those resources, or indeed any other kind of shared natural resource. Instead, the Court has, time and again, declared that such shared resources must be allocated on the basis of equity. This has been true in cases involving everything from maritime delimitation (which often affects access to shared petroleum resources in the continental shelf, e.g., ICJ 1985) and fisheries (ICJ 1974) to fresh water itself (e.g., ICJ 1997 & ICJ 2009). Far from being applicable to shared natural resources, sovereignty is consistently invoked as symbolizing a state’s exclusive authority within its

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territory, and thus as a bulwark against outside interference by other states in its internal affairs (e.g., ICJ 1949) (Brownlie 2012). However, this does not mean that a state’s sovereignty trumps its obligations under international law. If this were the case, there could be no international human rights law: a state would simply declare that it was free to treat its own citizens however it wished, because it was exclusively sovereign within its territory. Such an attitude was resoundingly rejected by the international community in response to the genocide perpetrated by the Nazi regime in the 1930s and 1940s. In fact, the horrific nature of Nazi atrocities may be said to have hastened the development of international human rights law (United Nations, 1948(1); United Nations, 1948(2); United Nations, 1966(1); United Nations, 1966(2)). More fundamentally, in its first decision, in the S.S. ‘Wimbledon’, the Permanent Court of International Justice rejected the notion that a state’s sovereignty could override its international obligations. Indeed, it pointed out that ‘the right of entering into international engagements is an attribute of State sovereignty’ (Permanent Court of International Justice 1923: 25). The same is true of obligations under customary international law. The content of the doctrine of sovereignty has doubtless undergone change over the years, as international law has developed (Litfin 1998, Bartelson 1995). Yet, at bottom, it still stands, in essence, for the exclusive authority of a state within its territory, and thus the independence of states. This was captured well by Max Huber in the famous Island of Palmas arbitration: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State’ (Huber 1928). Political scientists are in substantial agreement with this meaning of sovereignty. Litfin defines sovereignty in a conventional way as ‘the state’s exclusive authority within its political boundaries’ (Litfin 1998: 1), and according to Hinsley, sovereignty is ‘final and absolute authority in a political community’ (Hinsley 1966: 1). The ICJ drew the consequences for international relations of this characteristic of sovereignty in its first decision in a contentious case: ‘Between independent States, respect for territorial sovereignty is an essential foundation of international relations’ (ICJ 1949: 22). Moreover, the sovereignty of a state carries with it legal capacity: ‘‘‘sovereignty’’ is shorthand for legal personality of a certain kind, that of statehood’ (Brownlie 2012). None of these meanings, or characteristics, of sovereignty insulates a state from its obligations toward other states, including states with which it shares natural resources. Again, respect for a state’s sovereignty does not mean that another state cannot call upon it to observe its international obligations owed to the second state. Thus, even if a state could be said to be ‘sovereign’ over air,2 migratory birds, or water in an international watercourse while temporarily within the state’s territory, this would not help to explain the nature of its obligations concerning that resource

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vis-a `-vis other states with whom it shares such resources. Such obligations have long been recognized. The basic concept that a state is not free to act or permit others to act in its territory in such a way as to harm other states was recognized in the 1872 Alabama arbitration. That case concerned the construction and outfitting in Britain of ships (among which the Alabama was the best known) that were used by Confederate forces to prey upon Union merchant vessels during the Civil War in the United States. The arbitral tribunal found that Britain had an obligation of due diligence to prevent this kind of conduct, even though it occurred within its sovereign territory, and ordered it to pay substantial damages to the United States. In 1911, the prestigious Institute of International Law adopted the Madrid Resolution on International Regulations regarding the Use of International Watercourses. The regulations deal with both contiguous and successive international watercourses,3 and in both cases provide that a state is not to allow an international watercourse to be used in ways that are injurious to other states sharing the watercourse. They cover a range of activities, from alterations injurious to the water and modification of the utilizable character of the stream, to works in a downstream state that result in flooding a state upstream. In the landmark Trail Smelter arbitration between Canada and the United States, the tribunal held in its 1941 award that Canada was not free to allow a smelter to be operated within its territory in such a way as to cause air pollution damage to the United States. The tribunal declared: ‘under the principles of international law, [...] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’ (International Arbitral Tribunal 1941: 1965). This decision is effectively the font of modern international environmental law (Miller & Bratspies 2006: 1, McCaffrey 2006). It leaves no doubt that when a state does or permits the doing of something in its territory, it must ensure that the conduct and its effects are consonant with its obligations to other states.4 The ICJ confirmed this principle in the 1949 Corfu Channel case when it referred to ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’. These authorities could be multiplied many times but each of them rests on the fact that there are two sovereignties involved, not just one: that of the state of origin, and that of the state where the effect takes place. In the situations involving shared natural resources, the very fact that the resource in question is shared leads to a special legal relationship. The Institute of International Law recognized this in 1911 when it declared in the Statement of Reasons accompanying its Madrid Resolution that the rules of international law it stated result from ‘the interdependence which undoubtedly exists between riparian States with a common stream and between States whose

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territories are crossed by a common stream’. Interdependence, resulting from the sharing of a ‘common’ resource, is not something the doctrine of sovereignty was designed to deal with. To be sure, a state’s sovereignty over its territory is necessary to permit the state to control activities within its borders that may result in transgressions of its obligations owed to other states in respect of shared natural resources. It does not otherwise bear upon the state’s relations with other states in respect of those resources. It is perhaps for this reason that an opinion issued in 1895 by an American Attorney General concerning rights of the United States in a river shared with Mexico has received so much attention: in giving sovereignty a coverage it was never intended to have, and indeed was not designed for, the doctrine announced in the opinion is an anomaly. Unfortunately, it has proved to be an anomaly with an almost irresistible attractiveness to a very few similarly situated states and even, from all that appears, to the ILC itself. ALL BARK, NO BITE: THE ‘HARMON DOCTRINE’ AND THE 1906 RIO GRANDE TREATY The hubris of the Harmon Doctrine is well known. The doctrine has become shorthand for the assertion of absolute territorial sovereignty over the portion of an international watercourse that is situated within the territory of a state. Such an assertion admits no recognition of rights of a co-riparian state in the waters of that watercourse. While the doctrine could in theory be asserted by either upstream or downstream states, or indeed by a state sharing a contiguous (as opposed to a successive) watercourse, in practice the few assertions that have been made (usually by implication) have been by upstream states. Thus the effect of the doctrine is that a downstream state is ‘entitled’ only to whatever water it may receive after the full wants and needs of the upstream state have been satisfied. The dispute that gave rise to the doctrine was, in point of fact, settled in a treaty whose very title speaks volumes about how states actually behave for the most part in such cases: Convention between the United States of America and Mexico concerning the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes (United States & Mexico 1906): the ‘equitable distribution’ of the waters; not the ‘absolute territorial sovereignty’ of the United States over them. To illustrate how an assertion of sovereignty over an international watercourse played out in a concrete case, brief sketches of the dispute’s background, Harmon’s opinion and the way in which the dispute was resolved are given in the following paragraphs. The facts giving rise to the dispute may be quickly summarized. In the latter quarter of the nineteenth century, diversions by Americans in the US states of Colorado and New Mexico – probably encouraged by federal

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legislation designed to promote settlement of the Western United States (e.g., the 1887 Desert Lands Act) – and possibly a drought affecting the Rio Grande Basin seriously depleted the flow of the Rio Grande at the point where Mexican farmers began to have access to it, i.e. at Ciudad Juarez, Mexico, directly across the river from El Paso, Texas. The situation was captured graphically in an 1889 report to the US Secretary of War by the US Army officer in charge of what was then the Department of Texas: [O]ur Mexican neighbors [...] are a good deal excited over what they deem the violation of their riparian rights, through our people taking all the water of the Rio Grande for the irrigation of the San Luis Valley [in Colorado], which leaves the Rio Grande a dry bed for 500 miles. [T]hus far there has been no call for military force. (Stanley 1889)

An earlier report, transmitted to the House of Representatives by the Secretary of War in 1878, warned that as a result of the increasing diversions from the Rio Grande for irrigation in the US, ‘there will not be enough water for all, and both sides have an equal right’ (Hatch 1878). The situation led to exchanges of diplomatic notes between the United States and Mexico, beginning with a note from the Mexican Minister (ambassador) at Washington, Matı´as Romero, to Secretary of State W.Q. Gresham in 1894 (Romero 1894). The diplomatic correspondence culminated in a note of 21 October 1895 from Minister Romero that detailed the dire factual situation, from the standpoint of Mexico, and stated in part that ‘the principles of international law would form a sufficient basis for the rights of the Mexican inhabitants of the bank of the Rio Grande. Their claim to the use of the water of that river is incontestable, being prior to that of the inhabitants of Colorado by hundreds of years’ (Romero 1895). The US Secretary of State, then Richard Olney, referred this note to the US Attorney General, Judson Harmon, requesting a legal opinion from him on the rights and obligations of the parties under international law with respect to the dispute (Harmon 1895: 275). His specific question reads as follows: By the principles of international law, independent of any special treaty or convention, may Mexico rightfully claim that the obstructions and diversions of the waters of the Rio Grande in the Mexican minister’s note referred to, are violations of its rights which should not continue for the future and on account of which, so far as the past is concerned, Mexico should be awarded adequate indemnity? (Harmon 1895: 275)

Harmon began by surveying what he found to be the existing law. His terse conclusion was as follows: ‘An extended search affords no precedent or authority which has a direct bearing’ (Harmon 1895: 279). As remarkable

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as this may seem today, it was in fact true that at the end of the nineteenth century international water law was not well developed insofar as nonnavigational uses were concerned (e.g., McCaffrey 2012 & 2013). However, by 1895 there did exist ‘precedent or authority which ha[d] a direct bearing’ on the dispute with Mexico. Some of these authorities support Harmon’s views but others do not (McCaffrey 2007: 88). One example of the latter is illustrative. The great Russian diplomat and scholar of international law Friedrich Martens, of whom Harmon must have been aware, addressed the general situation in his treatise on international law published (in French translation) in 1883: In the domain of international relations, territorial sovereignty is limited by the fact of the coexistence and society of states. The very nature of their neighbourhood relations does not permit them to dispose of their territory without any restriction. From this are born international natural servitudes, to which all states are subject in consequence of the inevitable conditions of their physical existence, one beside the other. (Martens 1883: 479 [author’s translation])

Harmon had brushed aside the notion that there could be any such servitude: So it is evident that what is really contended for is a servitude which makes the lower country dominant and subjects the upper country to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory. Such a consequence of the doctrine of international servitude is not within the language used by any writer with whose works I am familiar, and could not have been within the range of his thought without finding expression. (Harmon 1895: 281)

Harmon named a number of authors in his discussion of this subject, some of whom he identified as taking positions either for or against a doctrine of ‘natural international servitudes’,5 but remarkably, not Martens. In any event, it was not strictly necessary to discuss this controversial doctrine, since a number of authors and state acts had recognized rights in the lower riparian country on an international stream (McCaffrey 2007: 88). Indeed, what has been described as ‘the first diplomatic assertion of any rule of international law’ concerning the rights of a riparian state to use an international watercourse was made by Holland in 1856 (Smith 1931: 137). Surely these qualify as authorities or precedents having ‘direct’ bearing on the case. Furthermore, Harmon cannot have been unaware of the award in the Alabama arbitration, which as seen above was rendered in 1872 and was quite famous in the United States. While it may not have had ‘direct’ bearing

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on the problem before him, in the narrow sense that the case did not involve the use of international watercourses, the general principle underlying the decision of the tribunal was certainly applicable: a state must exercise due diligence to prevent activities from being carried out within its territory that may, or are calculated to, cause harm to other states. Ironically, the authority on which Harmon ultimately placed greatest reliance was a decision of the US Supreme Court in an 1812 case whose facts were not even remotely analogous to the problem before him. The case, Schooner Exchange v. McFaddon, involved a vessel owned by private American citizens that was seized by Napoleon Bonaparte’s France when it was in Spain and converted into a French warship. When the vessel returned to the United States and was in port in Philadelphia, the American owners filed suit seeking to reclaim it. The case ended up in the US Supreme Court, where Chief Justice John Marshall, one of the country’s greatest jurists, held that the Philadelphia court lacked jurisdiction over the vessel because under principles of customary international law it enjoyed sovereign immunity (US Supreme Court 1812). Thus, in effect, the obligations the United States owed to France under customary international law trumped the territorial sovereignty of the United States. As Harmon, in what seems to have been a selective reading of the authorities, had found no applicable rules of international law bearing on the problem before him, however, he was left with the default principle of territorial sovereignty. The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory. Of the nature and scope of sovereignty with respect to judicial jurisdiction, which is one of its elements, Chief Justice John Marshall said (Schooner Exchange v. McFaddon...): ‘The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.’ (Harmon 1895: 281–2)

While Harmon stopped after quoting Marshall’s statement of the general principle, Marshall had gone on to explain carefully why the United States could not exercise jurisdiction over the French warship, despite its ‘absolute territorial sovereignty’: The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, [...] all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. [...] A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous

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notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. (US Supreme Court 1812: 135–6)

In other words, a country’s sovereignty over its territory is subject to its obligations under international law. At the end of his opinion Harmon declared that: ‘The case presented is a novel one.’ He conceded that ‘considerations of comity’ might counsel ‘tak[ing] [some] action’, but insisted that ‘that question should be decided as one of policy only, because, in my opinion, the rules, principles and precedents of international law impose no liability or obligation upon the United States’ (Harmon 1985: 283). Whether Harmon was right or wrong about the status of international law in 1895, it is beyond question today that international law does impose obligations upon a state in the position of the United States in the Rio Grande dispute. As Herbert Smith has observed in his influential work on international water law, ‘the problem was not [...] entirely a novel one [...]. The opinion clearly rests upon an insufficient analysis both of principles and of practice.’ Smith concludes that ‘Mr. Harmon’s attitude seems to have been merely the caution of the ordinary lawyer who is determined not to concede unnecessarily a single point to the other side’ (Smith: 42, 145). That the United States government took Harmon’s opinion as nothing more than this is borne out by what the country actually did following the opinion’s issuance. This is not the place to recount the long story of the US governments’ efforts to put itself in a position to effectuate an equitable resolution of the controversy with Mexico over the Rio Grande. Suffice it to say that the US went to great lengths, including launching a lawsuit that ultimately worked its way up to the US Supreme Court, to prevent a British company that had been granted a permit by the US Secretary of the Interior from constructing a dam on the Rio Grande in New Mexico so the US could build its own (US Supreme Court 1902, McCaffrey 2007: 95–6). The two countries also instructed their International Boundary Commission in 1896, the year after Harmon delivered his opinion, to investigate and report on the ‘best and most feasible mode [...] of so regulating the use of the waters of said river [i.e., the Rio Grande] as to secure to each country concerned and to its inhabitants their legal and equitable rights and interests in said waters.’ (Romero 1896) Perhaps most revealing of the United States’ actual attitude toward its international water relations with Mexico, however, is the treaty it entered into with that country in 1906 to resolve the Rio Grande controversy. The treaty, whose title refers to the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes (United States & Mexico 1906), as seen above, requires the United States to deliver 60,000 acre feet of water to Mexico annually in the bed of the Rio Grande, after completion of a storage dam in New Mexico. As already noted, the United States went to great lengths,

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and expense, to ensure that this would be possible. Harmon’s opinion therefore stands out as an anomaly when viewed in the overall context of the United States’ conduct in the dispute. It is what states do, not what they say, that is particularly significant in the formation, and confirmation, of rules of customary international law. Even as to what the United States has said on the subject of the rules governing its international water relations with its neighbours, virtually all other statements of the government have been directed at repudiating the Harmon Doctrine or have been diametrically opposed to it (Griffin 1958, McCaffrey 2007: 102–8). It can therefore be safely concluded that Attorney General Harmon’s opinion is an isolated statement that did not, and does not, reflect the law of international watercourses, or even the view of the United States on that branch of international law. In light of this conclusion, that absolute territorial sovereignty is at best a red herring in the law of shared freshwater resources, it comes as something of a surprise that the ILC of the United Nations would adopt a set of draft rules on transboundary aquifers that is based on the ‘sovereignty’ over those aquifers of the states sharing them. SOVEREIGNTY GOES UNDERGROUND: THE ILC’S TRANSBOUNDARY AQUIFERS DRAFT In 2008, the ILC adopted a set of 19 draft articles on The Law of Transboundary Aquifers. Following its customary practice, the ILC transmitted the draft to the UN General Assembly, which took note of it in a resolution, also adopted in 2008, annexing the draft articles. The Assembly, in that resolution and in one adopted in 2011, deferred a decision on the question of the ‘final form that might be given to the draft articles’ (United Nations 2008: 2, paragraph 6, United Nations 2011: 2, paragraph 3). This question refers to whether it is enough that the ILC has adopted the draft, whether a diplomatic conference should be convened at which a treaty could be negotiated on the subject on the basis of the ILC’s draft articles, or whether some other form (e.g., a guide to practice) should be given to the draft. As the draft articles are in some respects inconsistent with the UN 1997 Convention on the Law of the NonNavigational Uses of International Watercourses, and because they introduce the regressive concept of sovereignty of aquifer states into the field of international water law, the present author has been critical of the draft articles (e.g., McCaffrey 2009). There is no doubt that the subject matter of the draft articles is important. The great majority of the fresh water that is accessible to humans is underground, rather than on the surface in rivers and lakes (United Nations Environment Programme 20086). Groundwater is also generally purer than surface water, and less likely to be affected by waterborne diseases or their vectors. The General Assembly recognized the

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significance of groundwater, and that its international legal regulation is needed when it is shared by two or more states, when it ‘Not[ed] the major importance of the subject of the law of transboundary aquifers in the relations of States and the need for reasonable and proper management of transboundary aquifers, a vitally important natural resource, through international cooperation’ (United Nations 2011: preamble). But the question raised by the ILC’s draft articles is whether it is proper, or even useful, to characterize a state as having ‘sovereignty’ over a natural resource that is shared with another state. This and the previous section of the present chapter suggest that the answer to this question is clearly in the negative. First, sovereignty is an aspect of statehood, not a doctrine that bears upon a state’s external relations with other states. It does not override a state’s international obligations owed to other states but is rather the essential predicate for the entity to constitute a state and thus to bear such obligations. Second, while sovereignty has been asserted in relation to shared watercourses, most infamously in the Rio Grande dispute at the turn of the twentieth century, even the state that asserted ‘absolute territorial sovereignty’ did not follow the doctrine in that dispute and has since repudiated its applicability to shared freshwater resources (e.g., Griffin 1958). Despite this, the first ‘general principle’ contained in the ILC’s draft articles purports to resurrect this doctrine: Article 3 Sovereignty of aquifer States Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory. It shall exercise its sovereignty in accordance with international law and the present articles. (ILC 2008: 21)

The draft articles define the term ‘aquifer’ to mean ‘a permeable water bearing geological formation underlain by a less permeable layer and the water contained in the saturated zone of the formation’ (ILC 2008: 20). Thus the term is defined to include both the geologic formation, the ‘rock’, and the water it contains. The term ‘aquifer State’ is defined as ‘a State in whose territory any part of a transboundary aquifer or aquifer system is situated’ (ILC 2008: 21). In providing that a state has sovereignty over the portion of a transboundary aquifer that is located within its territory, the draft articles confuse the geological formation with the water it contains. The geological formation is, no doubt, a part of the territory of the state, something over which it is sovereign. The water contained in the formation, however, is in most cases only temporarily within the state’s territory. It moves in response to gravity, withdrawals by the territorial state or another state sharing the aquifer, or other forces (e.g., Ward 1975: 241). In addition, most

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groundwater interacts with surface water, e.g., through infiltration from the surface into the ground or through discharges from aquifers into surface streams (e.g., Thomas & Leopold 1964: 1003, Barberis 1986: 36). This interaction is often repeated, over and over, so that water that is on the surface today may be in the ground tomorrow and back on the surface next week. Thus states, in their practice, have not found the concept of sovereignty appropriate or useful as a principle governing their relations in respect of shared freshwater resources, including groundwater (e.g., McCaffrey 2007: 111–70). Despite this, the ILC, in explaining what it had in mind in formulating Draft Article 3, made the following remarkable statement: The need to have an explicit reference in the form of [a] draft article to the sovereignty of States over the natural resources within their territories was reaffirmed by many States, particularly by those aquifer States that are of the opinion that water resources belong to the States in which they are located and are subject to the exclusive sovereignty of those States. (ILC 2008: 38–9)

This explanation raises several issues, which will only be touched upon here. First, in referring to ‘natural resources’, the explanation is overly broad. A state no doubt is sovereign over static natural resources located entirely within its territory, such as trees, rocks or hydrocarbon deposits. But like migratory birds or air, can the water in a stream flowing from the state into another state be said to be ‘located’ in the former in this sense? Even if so, its position there is fleeting; it is ‘located’ there only temporarily. The same is true of most forms of groundwater. It is difficult, if not impossible, to square the concept of territorial sovereignty with something that moves through the territory – that is there only temporarily. It is true that a state enjoys sovereignty over its territorial sea, but it is the space within the state’s land and maritime boundaries over which the state has sovereignty, not the water carried by ocean currents beyond those boundaries. If the state had sovereignty over the water itself, would that sovereignty not have to continue after the water had moved into the territorial sea of a neighbouring state? Yet this would be absurd. No state has made such an argument so far as the author is aware. The same is true of fresh water flowing in a surface stream or through an aquifer. Once that water has left the territory of one state and passed into that of another, the first state cannot retain sovereignty over it; the water is then within the sovereign territory of the other state. Therefore, if the first state can be said to have sovereignty over the water, that sovereignty can only be temporary and partial. It is partial in the sense that a state may regulate the use of the water while it is within its territory, but that regulation is subject to the state’s international obligations to other states with respect to the water. This means that the state does not have complete

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freedom to dispose of the water as it wishes. These features of a state’s rights concerning fresh water flowing through its territory help to explain why states have not found the term ‘sovereignty’ to be appropriate to describe those rights. Second, the Commission’s commentary states that some aquifer states ‘are of the opinion that water resources belong to the States in which they are located’. The notion that waters flowing through one state into another ‘belong’ to the first state raises issues akin to those just discussed. ‘Belong’ is a lay term, not a legal one. It is startling to see such terminology in the commentary to draft articles adopted by the ILC, particularly when it is used to describe such complex subject matter. Together with the use of the concept of sovereignty itself, this term encourages aquifer states to feel free to dispose of groundwater temporarily present within their territories without regard to the rights of other aquifer states in that water. Such implied license is dangerous, particularly in the case of groundwater, given that the effects of a state’s actions with respect to it may not be felt in a co-aquifer state for some time, by which point the first state’s uses may be entrenched and difficult to alter. The fact that Draft Article 3 provides that an aquifer state ‘shall exercise its sovereignty in accordance with international law and the present articles’ does little more than close the barn door after the horse has escaped: the damage has already been done, emboldening aquifer states to act with the complete freedom that their ‘exclusive sovereignty’ entails with respect to the ‘[ground] water resources [that] belong to the States in which they are located’. Third, the commentary is misleading when it states that ‘[t]he need to have an explicit reference [...] to the sovereignty of States over the natural resources within their territories was reaffirmed by many States.’ This is so for two reasons. First, it is not clear what the Commission intends by the term ‘reaffirmed’. So far as the author is aware, such a need was never affirmed by states in the first place. Second, and perhaps more significantly, the available evidence indicates that the use of the word ‘many’ to refer to the states who expressed a view on this matter is an exaggeration. An examination of the record shows that only 18 states, out of the 193 members of the UN, submitted comments on the draft as a whole that was adopted on first reading in 2006, and of those 18 only four supported Draft Article 3 in varying degrees (McCaffrey 2009: 290). Finally, justifying a radical departure from accepted texts on international water law7 by referring to the comments of a few states rather than to the actual practice of states is inconsistent with the working methods of the ILC, which would ordinarily entail the marshalling of all available evidence of state practice on the point in question (ILC 1982).8 Remarkably, the Commission was able to identify no actual state practice supporting the notion that a state has sovereignty over the portion of transboundary groundwater in its territory (McCaffrey 2009: 286). This should have led the ILC to conclude that, as in the case of the Harmon Doctrine, the few governments whose comments supported the notion of sovereignty over

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shared groundwater constituted not state practice evidencing at least a developing trend in international law, but advocacy of a position those governments considered to be supportive of their interests. The most fundamental problem with the notion of sovereignty over shared groundwater is that it is inconsistent with international law. The ICJ, the most authoritative and respected interpreter of international law, has referred to a state’s ‘basic right to an equitable and reasonable sharing of the resources of an international watercourse’ (ICJ 1997: 54, paragraph 78). The Gabcˇ`kovo-Nagymaros ı Project case in which the ICJ made this statement involved both surface water and groundwater, and the UN Convention – from which the ICJ quoted in its judgment – defines the term ‘watercourse’ to mean both surface water and related groundwater. In using the term ‘watercourse’ the ICJ is therefore unlikely to have intended to exclude groundwater. The principle of a ‘basic right to an equitable and reasonable sharing’ of transboundary water resources is incompatible with the notion of ‘exclusive sovereignty’ over such resources. The obligation of equitable and reasonable utilization is also the cornerstone of the UN Convention (United Nations 1997: Article 5). In its commentary to the Transboundary Aquifers draft, however, the ILC did not attempt to explain how the two concepts could possibly fit together. Indeed, in the Gabcˇ`kovo-Nagymaros ı Project case neither Hungary nor Slovakia relied on the notion of sovereignty over the portion of the surface water or groundwater located in their territories. Nor has any other state in a case before an international tribunal. Moreover, in its judgment in the Gabcˇ´kovo ı case, the ICJ further elucidated the nature of the relationship between states sharing freshwater resources in a way that cannot be squared with the notion of ‘exclusive sovereignty’ over those resources. The ICJ drew upon the concept of the ‘community of interest’ in an international watercourse its predecessor first articulated in a case concerning navigation. It stated as follows: In 1929, the Permanent Court of International Justice, with regard to navigation on the River Oder, stated as follows: ‘[the] community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others.’ Modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly. (ICJ 1997: 56)

It is difficult to square the concept of a community of interest in shared freshwater resources with the notion that a state sharing such resources has

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sovereignty over the portion of them located within its territory. Indeed, reconciling these two concepts is all but impossible in light of the ‘essential features’ of the community of interest identified by the Court: ‘the perfect equality of all riparian States in the use of the whole course of the river’; and ‘the exclusion of any preferential privilege of any one riparian State in relation to the others’. One state’s ‘exclusive sovereignty’ over water resources located in its territory amounts to a ‘preferential privilege’ as to that water, even though in most cases the water is only in the state’s territory temporarily. Such a privilege is excluded by the ICJ’s judgment in Gabcˇ´ıkovo. The state’s purported sovereignty over groundwater located within its territory is likewise incompatible with the principle of ‘the perfect equality of all riparian States’ with regard to that water, and is also thus ruled out by the Gabcˇ´ıkovo judgment on this account. It is this equality of right that underlies the governing principle in the field of international water law: equitable and reasonable utilization. Equality of right means that each state sharing an international watercourse – including transboundary groundwater – has a right to equitable and reasonable utilization thereof that is equal to the corresponding right of the other state or states sharing the resource. This does not mean the states have a right to an equal share, but they do have equal rights to a share that is equitable under the circumstances, as determined by consideration of all relevant factors (United Nations 1997: Article 6). The principle of equality of right is also reflected in the fundamental principle of the sovereign equality of states, declared as the first governing principle of inter-state relations in Article 2 of the UN Charter (United Nations 1945). The ILC does not explain how exclusive sovereignty over the portion of groundwater shared with a neighbouring state is compatible with the principle of sovereign equality. In sum, the notion of ‘sovereignty of aquifer states’ included in the ILC’s Transboundary Aquifers draft is inconsistent with the principles and rules of international law governing the use of shared freshwater resources. Moreover, it makes little practical sense in this context and only lays the foundation for disputes between states sharing transboundary groundwater, each of which could assert sovereignty over the portion of groundwater in its territory to justify withdrawals or other uses inconsistent with the governing rule of equitable and reasonable utilization. This provides a good illustration of the kinds of mischief the doctrine of sovereignty can work when applied outside the context it was intended to cover. CONCLUSION The foregoing discussion has shown that the doctrine of sovereignty was intended to apply to the internal affairs of states, not to the sharing of natural resources between states. In fact, it was not intended to apply to

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inter-state relations at all, save as a bulwark against interference in the internal affairs of a state by other states. The second section of the chapter presented a case study of an assertion by a state of absolute sovereignty over the portion of shared water resources situated in its territory and the ultimate resolution of the controversy that led to the assertion. The case study illustrates the general practice of states of resolving disputes over shared freshwater by recourse to the principle of equitable utilization, not sovereignty. In fact, it is remarkable that given the allure of the doctrine of sovereignty, more states have not invoked it in water disputes with other states. While equitable utilization is based on cooperation between riparian states, sovereignty connotes exclusivity and a cramped view of independence, rather than taking into account the interests of other states. It is therefore surprising that the ILC would base its draft articles on the Law of Transboundary Aquifers on the principle of the sovereignty of aquifer states over the portion of an aquifer – including both the underground geologic formation and the water it contains – located in their territories. Such a principle is inconsistent with cooperation between states concerning this vital resource and establishes the conditions for disputes rather than for cooperation. This draft should therefore not be used by states as a model for the governance of their relations concerning transboundary aquifers. The international community should resist sovereignty’s siren song in a world where cooperation, not exclusion, must be the leitmotif of freshwater governance. NOTES 1 It is one of the anomalies of international life that modern international law, which governs all states in the world, had its origins in Europe – and indeed, in western Europe. 2 A state is said to be sovereign over its airspace, but not the air in that space. 3 ‘Contiguous’ watercourses are those that run along, or form, the border between two states, and are thus contiguous to both states. ‘Successive’ watercourses are those that flow successively from one state to another. 4 Even in non-transboundary cases, actions within a state’s territory may have global consequences, as in the case of the release of ozone-depleting substances and greenhouse gases. These problems have been subjected to global regulation through widely-subscribed international agreements, which are not seen as diminishing state sovereignty. 5 Among others, Harmon mentioned Heffter and Phillimore (for), and Grotius, Kluber, Bluntschli, Woolsey, and Calvo (against). 6 This source explains: ‘Some 8 million km3 or 30.8% [of all Earth’s fresh water, most of which is contained in the Greenland and Antarctic ice sheets] is stored underground in the form of groundwater (shallow and deep groundwater basins up to 2,000 metres, soil moisture, swamp water and permafrost). This constitutes about 97% of all the freshwater potentially

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available for human use.’ By contrast, ‘[f]reshwater lakes and rivers contain an estimated 105,000 km3 or 0.3% of the world’s freshwater.’ 7 Perhaps foremost among those texts are the 1997 UN Watercourses Convention (United Nations, 1997) and the 1966 Helsinki Rules on the Uses of the Waters of International Rivers, adopted by the International Law Association (ILA, 1966). 8 The ILC, in discharging its mandate to engage in the ‘progressive development of international law and its codification’ (ILC, 1982: Art. 1(1)), traditionally takes into account all forms of sources and evidence of international law, emphasizing actual state practice.

REFERENCES Alabama Claims Arbitration. 1872. Alabama claims of the United States of America against Great Britain: Award rendered on 14 September 1872 by the tribunal of arbitration established by Article I of the Treaty of Washington of 8 May 1871. XXIX United Nations Reports of International Arbitral Awards (New York, United Nations), pp. 125–35. Barberis, J., International Groundwater Resources Law. FAO Legislative Study No. 40. (Rome: FAO, 1886). Bartelson, J., A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995). Bodin, J., De Republica (Paris: Du Puys, 1576). Brierly, J.L., (Sir Humphrey Waldock, ed.), The Law of Nations, 6th ed. (New York, NY; London: Oxford University Press, 1963). Crawford, J. (ed.), Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012), p. 204. Griffin, W., Legal Aspects of the Use of Systems of International Waters. Memorandum of the United States Department of State. 21 April 1958. US Senate Doc. No. 118, 85th Cong., 2nd Sess., 1958. Harmon, J., Judson Harmon, Attorney-General, to Richard Olney, Secretary of State, 12 December 1895, 21 Op. Att’y Gen. 274 (1895). Hatch, Col., Report of Col. Hatch transmitted to the House of Representatives by the Secretary of War, Ex. Doc. No. 84, 45th Cong., 2nd Sess., referred to in Irrigation of Arid Lands – International Boundary – Mexican Relations, Report to accompany Bill H.R. 3924 by Mr. Lanham, 27 February 1890, H.R. Rep. No. 490, 51st Cong., 1st Sess., Serial Set 2808-2, p. 2 (1890). Henkin, L. ‘The Mythology of Sovereignty’, in Macdonald, R.S.J. (ed.), Essays in Honour of Wang Tieyh (Dordrecht: Martinus Nijhoff, 1994), pp. 351–8. Hinsley, F.H., Sovereignty (New York, NY: Basic Books. 1966). Huber, M., Arbitral Award, 4 April 1928, Island of Palmas (Netherlands v. United States), UNRIAA, vol. II (1928), p. 838. Institute of International Law, Madrid Resolution on International Regulations regarding the Use of International Watercourses. Annuaire de l’Institut de droit international, Madrid Session, 24 (1911), pp. 365–7. International Arbitral Tribunal 1941. The Trail Smelter Arbitration (Canada/ United States). United Nations Reports of International Arbitral Awards, vol. 3, pp. 1911, 1938 (1941).

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International Court of Justice (ICJ), Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, p. 22. ———, Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Merits). I.C.J. Reports, 1974, p. 3. ———, Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta). I.C.J. Reports, 1985, p. 13. ———, Case concerning the Gabcˇ`ıkovo-Nagymaros Project (Hungary/Slovakia). I.C.J. Reports, 1997, p. 7. ———, Pulp Mills on the River Uruguay (Argentina v. Uruguay). I.C.J. Reports, 2010, p. 14. International Law Association, Helsinki Rules on the Uses of the Waters of International Rivers. Report of the Forty-Second Conference, Helsinki, 1966 (London, International Law Association, 1966), p. 484. Litfin, Karen T. (ed.), The Greening of Sovereignty in World Politics (Cambridge, MA and London, UK: MIT Press, 1998). Martens, F. Traite´ de droit international (trans. from Russian), vol. I, 1883. McCaffrey, S. 2006. ‘Of Paradoxes, Precedents, and Progeny: The Trail Smelter Arbitration 65 Years Later’, in Bratspies, R.M. and Miller R.A. (eds), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (Cambridge: Cambridge University Press, 2006), p. 34. ———, ‘The International Law Commission Adopts Draft Articles on Transboundary Aquifers’, American Journal of International Law, 103 (2009), p. 272. ———, ‘International Watercourses’, in Wolfrum, R. (ed.). Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2009). Available at http://www.mpepil.com/. ———, ‘The Progressive Development of International Water Law’, in Loures, F.R. and Rieu-Clarke, A. (eds), The UN Watercourses Convention in Force: Strengthening International Law for Transboundary Water Management (Abingdon and New York, NY: Routledge, 2013). Miller, R. and Bratspies, R., ‘Introduction’, in Bratspies, R.M. and Miller, R.A. (eds) Transboundary Harm In International Law: Lessons from the Trail Smelter Arbitration: 1 (Cambridge: Cambridge University Press, 2000). Nussbaum, A., A Concise History of the Law of Nations (New York, NY: Macmillan, 1954). Permanent Court of International Justice, Case of the S.S. ‘Wimbledon’ (United Kingdom, France, Italy & Japan v. Germany). 1923 P.C.I.J. (ser. A) No. 1 (August 17). Romero, M., Minister Romero to Secretary Gresham, 12 October 1894, Foreign Relations of the United States, p. 395 (1894). ———, Minister Romero to Secretary Olney, 21 Oct. 1895, in American and British Claim Arbitration, No. 83 (1923). The Rio Grande Claim, Appendix to the Answer of the United States: 200, 202. ———, Minister Romero to Secretary Olney, 6 May 1896 (attached Protocol), in American and British Claim Arbitration, No. 83 (1923). The Rio Grande Claim, Appendix to the Answer of the United States, pp. 225–6. Smith, H., The Economic Uses of International Rivers (London: King & Son Ltd, 1931). Stanley, General. Report of General Stanley to the Secretary of War, 12 September 1889, in: Irrigation of Arid Lands – International Boundary – Mexican

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Relations, Report to accompany Bill H.R. 3924 by Mr. Lanham, 27 Feb. 1890, H.R. Rep. No. 490, 51st Cong., 1st Sess., Serial Set 2808-2, p. 3 (1890). Thomas, H. and Leopold, L., ‘Ground Water in North America’, Science, 143 (1964), p. 1001. United Nations, Charter of the United Nations, 1945. Available at http://www.un. org/en/documents/charter/. ———, 1948(1), Convention on the Prevention and Punishment of the Crime of Genocide. U.N. General Assembly, 9 December 1948. 78 U.N.T.S. 277. ———, 1948(2), Universal Declaration of Human Rights. U.N. General Assembly, 10 December 1948. U.N.G.A. Res. 217 A (III). ———, 1966(1), International Covenant on Economic, Social and Cultural Rights. U.N. General Assembly, 19 December 1966. U.N.G.A. Res. 2200 (XXI). ———, 1966(2), International Covenant on Civil and Political Rights. U.N. General Assembly, 19 December 1966. U.N.G.A. Res. 2200 (XXI). ———, Statute of the International Law Commission, as amended. U.N. Doc. A/CN.4/4/Rev.2 (1982). ———, Convention on the Law of the Non-Navigational Uses of International Watercourses. 21 May 1997. 36 I.L.M. 700 (1997). ———, Report of the International Law Commission on the Work of Its Sixtieth Session, UNGAOR, 62d Sess., Supp. No. 10, at p. 19, UN Doc. A/63/10 (2008). ———, The Law of Transboundary Aquifers. U.N.G.A. Res. 63/124 (11 December 2008). ———, The Law of Transboundary Aquifers. U.N.G.A. Res. 66/104 (9 December 2011). United Nations Environment Programme, Vital Water Graphics, 2nd ed. (United Nations, 2008). Available at http://www.unep.org/dewa/vitalwater/index.html. United States and Mexico, Convention between the United States of America and Mexico concerning the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, 21 May 1906. US Treaty Series No. 455. US Supreme Court, The Schooner Exchange v. McFaddon. 7 Cranch p. 116 (1812). ———, United States v. Rio Grande Dam and Irrigation Co. 184 US Reports, p. 416 (1902). Ward, R., Principles of Hydrology, 2nd ed. (London: McGraw-Hill, 1975).

4

The History of Water Law in the Common Law Tradition

William Howarth* INTRODUCTION Water is a vitally important natural resource needed to meet a wide range of human needs. These uses, however, are not necessarily compatible and water that is taken or occupied for one use, to a greater or lesser extent, will not be available for another. Even within use categories, individual users may frequently be seen as competitors, with one user’s needs being met at the expense of another. Inevitably, therefore, water should be managed in a way which enables the individual and mutual entitlements of users to be fairly and clearly identified through precise legal requirements, enabling disputes as to rights of use to be minimized. The purpose of this discussion is to examine a progression of legal attempts to define rights of water use and to offer commentary on how effectively they have succeeded in defining and balancing the interests involved. Specifically, the progression to be considered is that of the English Common Law as it applies to private water rights. The aim is to examine the evolution of these rights, focussing upon key stages in their chronological development and the historical contexts that have shaped them. This wildly ambitious task has to be cut down to manageable proportions. The discussion focuses primarily upon a particular use of water: its use as a source of power in water milling activities. This allows for comparison to be drawn between the legal treatment of a technologically developing, but broadly similar, kind of activity undertaken overtime. In the geographical context of England, this involves investigation of the development of principles of customary law on the most controversial, and most litigated, use of water over a period of almost 1,000 years. Even restricting the discussion to the development of the common law relating to milling uses of water, the account must necessarily be selective and might be best seen as no more than an identification of the ‘landmarks’ in legal development in this area. Nevertheless, successive responses of the common law courts and the views of commentators on disputes in this area serve to highlight broader themes in customary law and on water rights generally.1

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THE COMMON LAW It would be rash to draw any all-encompassing conclusions about the history or character of the common law from this relatively narrowly defined study, but it may provide a serious challenge to some commonly-held preconceptions about the common law. Rightly or wrongly, but always at a high level of abstraction, the common law is seen as a distillation of collective judicial wisdom. Successive generations of common law judges, highly trained in a precise discipline, in deciding particular cases before them, have, wittingly or unwittingly, contributed to the progressive exposition and refinement of general legal principles. These principles, adapted to changing economic and social conditions, by re-endorsement by subsequent judges, have gained gravity beyond the particular disputes that prompted their formulation. Ultimately, the purpose of this exercise might be seen as one involving cumulative modification and enhancement, directed towards achieving evergreater rationality and consistency in the principles of a body of customary law. Without pre-empting the discussion that follows, the reality of the common law that is illustrated shows it in a markedly different light. Far from being a thoroughbred offspring of English judicial thought, it turns out to be a mongrel creation that draws heavily on thinking from outside the common law, particularly Roman law, continental jurisprudence and, more recently, doctrines drawn from the law of the United States. The perception of the history of the common law as illustrating a systematic progression and refinement of thinking about general legal principles over time turns out to be well wide of the reality. In short, the history of the common law on water rights shows radically different and wholly inconsistent approaches being adopted, discarded and sometimes reinvented in slightly different forms. In deciding cases, judges have, over time, taken a ‘pick and mix’ approach to legal principles. The development of the common law principles governing water rights has been, over most of the historical period being surveyed, in short, chaotic. A tentative conclusion might be that the judges have almost purposefully disregarded their search for legal principles when seeking to determine what they have seen as the proper entitlements of particular litigants. If anything, the study shows that the resolution of particular cases often proves to be the ‘tail’ that wags the ‘dog’ of legal principle, rather than the other way around. At the very least, this account of the historical development of water rights casts doubt upon claims that the common law has until fairly recent times approached these issues with any degree of consistency. SUMMARY OF CONTENT After a brief discussion of the evolving context of water milling and the general difficulties in characterising the right to water, the main content of

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the account that follows focuses upon four key stages in the historical progression of formulating common law water rights: first, the account of medieval water rights, based upon natural rights and as servitudes, provided by Henry de Bracton in the thirteenth century; second, the subsequent protection of natural water rights, particularly under the sic utere principle;2 third, the account of water rights provided by Sir William Blackstone in the eighteenth century, finding a basis for these rights in prior appropriation of water; and, finally, the rationalization of previous bases for water entitlements brought about in the case of Embrey v. Owen (1851) and the anomalies in the common law that remain following that decision. THE CONTEXT OF THE COMMON LAW Water milling It is beyond the scope of this discussion to present anything beyond an introductory account of the history of water milling in England, but some general observations are needed to set the legal issues in their historic context. Although the ability to use water power for primitive operations was known to the ancient Greeks and Romans,3 its widespread use in England for grinding corn or ‘grist’ into flour was widespread in the early medieval period with the Doomsday Book of 1086 recording over 5,000 watermills in England, though this may be an underestimate of the actual number. During this feudal period mills were generally owned by lords of the manor or monasteries, who could claim a seigneurial monopoly over milling rights, so preventing the establishment of competing mills, and compelling all tenants within a manor to make exclusive use of a particular mill for grinding corn.4 The original use of water power for corn milling, however, was eclipsed by its increasing application to the treatment of cloth, particularly in ‘fulling’ where woven woollen cloth is beaten or compressed to cleanse and shrink it, and to increase its density and durability. The capacity to undertake this process mechanically, which seems to have commenced in the late twelfth century, gave rise to an ‘industrial revolution’ during the thirteenth century.5 Lords of manors erected fulling mills and, again, claimed a feudal monopoly over the finishing of cloth produced within the manor, frequently to the resentment of their tenants. The development of water-powered fulling enabled the widespread establishment of centres of cloth processing in rural locations, where suitable streams were more readily available, with the consequent decline of the weavers’ guilds that controlled the industry in urban centres. This had the effect of shifting the centres of cloth production from the east to the west and to more northerly locations in England, where hydrological conditions were more favourable. The longer-term impact of these changes was to generate massive

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prosperity in a period when the medieval economy was heavily based on the production of woollen cloth for home use or export. By the end of the fifteenth century, cloth exports probably accounted for 90 per cent of England’s total exports.6 The expansion of water milling from corn to fulling, though dramatic in its social and economic effects, clearly had implications for increasing the demand for waters with sufficient descent to be suitable for milling use. This competition was further increased when water power was harnessed to operate an increasingly diverse range of industrial processes. While ‘the industrial revolution’ might generally be taken to be the period from the middle of the eighteenth century to the middle of the nineteenth century, when the most dramatic changes in industrial production methods took place, arguably those changes were part of a longer-term technological progression during which water milling continued to provide the main source of power. The dependency upon water power continued throughout the ‘official’ period of the industrial revolution up until the late nineteenth century, when water as a source of power was eventually superseded by steam,7 so much so, that it has been suggested that ‘the Industrial Revolution [...] was based almost entirely on the water mill’ and this was ‘the Age of Water Power.’8 By 1700 there were between 10,000 and 20,000 watermills in Britain, with up to five watermills per mile of useable watercourse in the most industrially developed areas.9 The number of mills increased as new uses for milling power were devised in the manufacture of textiles, in mining and the processing of metals, throughout the eighteenth century.10 Over this period the technology of water milling underwent significant change and improvement in efficiency. Early water wheels, termed ‘undershot’ wheels, simply dipped into running water and turned at the speed of the natural flow of the stream. Scientific investigations in the mid-eighteenth century had established that ‘overshot’ wheels, where the water flowed down onto the wheel with the force of gravity, were greatly more efficient. This was followed by technical improvements brought by the construction of larger wheels, built of iron, to a greatly improved design.11 The general picture is of an expanding use of water power up to the end of the nineteenth century, with milling being used in a greater range of manufacturing processes, and operating with increasing efficiency. The effect of this was to place ever greater pressure upon suitable watercourses and to further increase the scope for disputes between competing water users. This was further exacerbated by the need for water as a raw material in other kinds of manufacturing; the expansion of canals and the need to provide water supplies to increasingly urban populations located in industrial centres.12 Given the economic pressures upon water resources, both as a source of power and as a source of supply, it is not particularly remarkable that water milling activities and other activities impacting upon milling gave rise to

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frequent litigation. Typically, conflicts were of two kinds. In the first case, the operation of an upstream mill involved the diversion of a flow of water away from a downstream mill, resulting in a diminution of milling power and/or a reduction in the times at which milling could take place. In the second situation, the operation of a downstream mill involved the damming or penning back of water to gain the fall needed for a mill to operate most efficiently. The effect of this was often to reduce the fall of water at upstream mills and/or to cause upstream flooding. In either case, the courts were frequently called upon to determine the respective rights of upstream and downstream mill owners, though some cases involved impacts arising from, or to, other kinds of water-use activities. Hopefully, determination of disputes of this kind would to be undertaken in accordance with clear principles that would clarify the rights of water users generally and diminish the need for future disputants to resort to law. As will be seen, from the earliest period of the common law up until at least the middle of the nineteenth century, judges largely failed to provide clear principles to govern the entitlements of mill operators and other waterside landowners. The legally problematic character of water rights As to why the common law judges encountered such difficulties, two general observations may be offered at this stage: first, on the legally peculiar character of water, and second, on the alternative legal routes for the protection of private rights to water use. Water has characteristics that set it apart from other kinds of ‘property’ which may be the subject of ownership. While personal property and land have permanence, which is generally sufficient to establish possession, flowing water lacks this characteristic. Without possession to serve as a basis for ownership, water lacks the feature of immutability that served to define other kinds of property. Certainly, water may be taken into possession by being contained in ponds, pipes and tanks, but insofar as water flows over land, physical ‘possession’, at best, is a transient matter. What might be claimed to be ‘possessed’ by a landowner is in a constant state of flux, with the possible subject of ownership changing from one instant to the next. This makes the concept of private ownership of water legally problematic, if not impossible, irrespective of whether it is socially or economically desirable for landowners to be entitled to claim property rights to what might be better regarded as a common or public resource.13 Beyond that, at least in relation to milling litigation, issues of water ownership might be seen as an irrelevance. In disputes of the kind that have been outlined, it is apparent that neither upstream nor downstream owners are actually claiming anything approaching a right of ownership of the water. What is being claimed is an entitlement to use a flow of water to generate power or to prevent activities, such as the diversion of a water

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flow, that diminish its availability for downstream use. A claim to no more than usufruct in a constantly changing resource sets water rights apart from other property interests in land and links them more closely to regimes that govern rights of access to other common natural resources, such as air or light. The ambivalence as to whether water rights involve a claim to property or a claim to the use of a natural resource is reflected in the longstanding difficulty that common law courts have encountered in deciding what kind of wrong is done by interference with a water flow and what kind of remedy is appropriate to provide redress. The distinction between a claim to real property and the claim to enjoy a particular use of that property is of fundamental importance. Since the earliest period, the common law has been structured and formalized around specific writs or forms of action that served to standardize the pleading requirements and remedies available. The rigidity of the distinct forms of action was such that a claimant seeking redress could fail in this endeavour, not because of any lack of substantial merit in the claim, but because the wrong form of action had been selected. In the common law, substantive rights to interests in land and water were largely subsumed to the formalities that governed matters of pleading, proof and remedy.14 More specifically, the common law provided for distinct writs available for dispossession of land and interference with the enjoyment of land. Broadly, trespass was the appropriate writ for the wrongful taking of land and nuisance the writ that should be pursued in a claim of interference that did not involve the actual taking of land. In general terms, the distinction between the writs lay in a contrast between the direct invasion of property rights and the rectification of wrongs, usually originating outside the harmed property, in relation to which different pleading requirements were stipulated and different remedies provided. Most notably, trespass was actionable irrespective of the claimant showing that actual or physical damage had been suffered and enabled ownership to be reaffirmed. By contrast, nuisance allowed personal remedies in damages, but required specific harm to be shown by the claimant. It is beyond the scope of this discussion to provide an account of how the actions for trespass and nuisance arose and developed over the centuries, suffice to say that the essential characteristics of trespass and nuisance have always been seen as distinct and remain so in contemporary common law.15 Returning to water rights, the distinction between actions in trespass and nuisance is vitally important, if problematic. The difficulty relates to exactly what is being claimed by an aggrieved mill owner. On the one hand, the claim might be that a reduction in flow by an upstream owner has reduced the efficiency and profitability of a downstream mill and thereby caused damage. If this is the case, an action in nuisance would be the most appropriate means to remedy the complaint and perhaps prevent the continuation of the offending upstream activity.

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Alternatively, the claim might be that the upstream diversion has not actually caused damage to any present activity, but will prevent future use of the stream should the owner wish to use it at a later date. The argument here is that there is a loss to the amenity of the adjoining downstream land by the taking of the water flow and that this amounts to an intrusion upon property rights which falls within the scope of trespass, for which no actual damage needs to be shown. Clearly, factual situations in different cases will differ, but the ambiguity between trespass and nuisance has beset legal proceedings of this kind over several centuries, with judges and commentators taking markedly different positions as to whether actions of the kind under discussion are properly based upon the right of ownership of property or the right to enjoy the use of property. MEDIAEVAL WATER RIGHTS AS SERVITUDES A focal point for any discussion of the common law origins of water rights in the medieval period must lie in the writing of Henry de Bracton, particularly De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), which is thought to have been written about 1235.16 As a statement of English law, De Legibus is ‘so detailed and accurate that there is nothing to match it in the whole legal literature of the middle ages’.17 This lengthy, and sometimes difficult, if not contradictory, work provides the earliest systematic treatise on the common law, largely recounting judicial decisions, methods of pleading and remedies in English courts in the thirteenth century. However, at least in the ordering of his account of English law, Bracton’s work draws significantly upon Roman and canon law and is influenced by the writings of continental European jurists. The extent to which De Legibus is a genuine statement of English common law, as opposed to an account based upon Roman and other legal sources, has been the subject of much scholarly debate, which is beyond the scope of this discussion.18 In those parts of the work of most direct relevance to water rights, there is considerable evidence of Roman law influences, particularly in respect of the substantive rights that arise, as opposed to procedural and remedial matters involved in defending these rights through the distinct forms of action. Bracton’s continuing contribution to water law might be seen as his adept use of general principles drawn from Roman law as a basis for remedies provided through common law actions.19 The essence of Bracton’s account of water rights may be concisely summarized in six key points. First, Bracton adopted Roman private law categories of persons, things and actions (Br. V2/29), and divided things according to those which fall within patrimony (property) and those falling outside this, such as things

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held in common. He also allowed for a distinct category of things that are ‘neither within nor without our patrimony’ and included in this category ‘rights and servitudes, a usufruct, a right of passage... [and] a right to conduct water over another man’s land and other similar arrangements’. Insofar as these things were regarded as rights of servitude between landowners, he took the view that they could not be ordinarily owned because they were praedial rights, arising from the ownership of land, and incapable of being alienated or separated from the land (Br. V2/39). Within this system of categorization, therefore, rights to water use were the subject of a distinct kind of ownership. They took the form of servitudes or easements between landowners, burdening the owner of the servient land to respect the water entitlements of the owner of the dominant land, and were rights that were not capable of being owned independently of land. Second, the identification of water rights as servitudes fits alongside Bracton’s distinction between corporeal (tangible) property and incorporeal (abstract) property (Br. V2/48). He uses water rights as an illustration of incorporeal property: ‘incorporeal things, such as rights, are those which can neither be seen nor touched, as a right of way over another’s land, a right to [...] conduct water over it and other such, which cannot be possessed only quasi-possessed’ (Br. V2/39). That is to say, a landowner’s right to transmit water onto neighbouring land is an abstract thing, capable only of incorporeal ownership, as opposed to the water itself, which is clearly a tangible thing. Third, in respect of the ownership of water itself, Bracton followed the Institutes of Justinian 20 in maintaining that running water is a common good, belonging to all. In another classification of things he allowed for things: ‘some are common, others are public, others are the property of the universitas; some belong to no one [...]. By natural law these are common to all: running water, air’ (Br. V2/39). Hence, the characterization of flowing water as common property generally places it outside the range of things capable of private ownership. This is subject to the qualification that there are circumstances where water may become privately owned. So, in discussing rights in rivers he notes their generally public status, with the exception that ‘this is to be understood of permanent rivers, for streams that do not flow uninterruptedly may be privately owned’ (Br. V2/40). It is also apparent that common or public ownership of flowing water does not extend to water that is in some way contained. Hence, rights in flowing water do not arise in respect of water in a cistern, a lake or pond, or a well where these do not comprise flowing water (Br. V3/192–3). Notably, the basis for common ownership of flowing water is founded in ‘natural law’, which seems to envisage a right of access to water to all, seemingly irrespective of rights of ownership of adjoining land. However, Bracton’s explanation of ‘natural law’ is obscure:

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Natural law is defined in many ways. It may first be said to denote a certain instinctive impulse arising out of animate nature by which individual living things are led to act in certain ways. Hence it is thus defined: Natural law is that which nature, that is, God himself, taught all living things[...]. On the other hand [...] Natural law is that taught all living things by nature, that is, by natural instinct. (Br. V2/26)

This rather vague notion of ‘natural law’ may best be seen as a contrast to his characterization of ‘civil’ or ‘customary law’, which is seen as sometimes detracting from or supplementing natural law where different laws prevail by force of custom approved by those to whom they apply (Br. V2/27). Fourth, despite the general status of flowing water as commonly or publicly owned, Bracton followed the Digest of Justinian 21 in identifying further rights of waterside landowners. Water rights in respect of a landholder’s own land are taken to be natural rights arising from the ownership of land. Bracton seems to have introduced the idea of natural rights to explain a landholder’s rights to use water on his or her own land, where servitude allowing for this makes little sense. Hence, ‘Rights may be called liberties from the point of view of the tenements to which they are owed, servitudes from that of the tenements which owe them. They always exist in another’s property, not in one’s own, because no one may have a servitude over his own land’ (Br. V3/162–3). The character and scope of natural rights to water may be seen as one of the key difficulties with Bracton’s analysis. It is far from clear whether a landowner’s right to water as a natural right is co-extensive with the servitude rights that may be possessed against other waterside owners who may be competing for the use of the water. In providing two different bases for establishing water rights, Bracton opened an avenue for controversy in later disputes as to whether natural rights or rights based on servitudes should prevail where the scope of these differ. Fifth, insofar as rights to water were seen as being based upon servitudes, Bracton identified three distinct mechanisms by which these could come into existence. Just as a servitude is [...] sometimes constituted by man, sometimes by acquiescence and use, so it sometimes is imposed by law, neither by man nor by use, that is, that no one do anything on his own land by which damage or nuisance accrues to a neighbour. (Br. V3/163)

That is, servitudes are capable of being created: i) expressly, by grant between landowners; ii) by long use with acquiescence; or iii) by operation of law. Although recognising that servitudes by grant, termed ‘by constitution’, are infinitely diverse (Br. V3/166), Bracton notes particular servitudes arising by grant, encompassing a range of specified water rights:

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One may have this servitude, that is, the right of conducting water from another’s land and over another’s land to his own land in order to irrigate his field, or to provide some other benefit; he ought not then to be completely prevented from conducting it, or kept from conducting it conveniently or in the proper way, according to the constitution of the servitude, as where, [when] he ought to conduct it at all times, the other only permits him to conduct it at some time, [or] if at certain times, not at any time. And so if he does not permit him to conduct it in the quantity due, [or] to scour the channel, by which the flow of water is impeded and the tenements of neighbours flooded [...]. The nuisances which destroy servitudes completely or, at the least, keep them from being used effectively, are infinite [...] as may be seen. (Br. V3/188–9)

Hence, servitudes constituted by grant are seen as incorporating implied appurtenant or auxiliary rights to enable the servitude to be enjoyed effectively. In relation to watercourses, these included rights to convenient access to a watercourse and rights to repair, restore and cleanse a water channel to its former state, but not to increase its capacity so as to divert water from a neighbour or to do anything that interferes with a neighbour’s convenient use of a servitude (Br. V3/164 and v3/189). The overriding idea seems to be that water servitudes should be exercised reasonably or, as it is put, in a way that does not exceed ‘due measure’ (Br. V3/165). Bracton allowed the acquisition of ‘an infinite number’ of incorporeal rights, including the right to conduct water over land, by prescription. Hence, ‘Just as one may have a servitude in his neighbour’s land if it is constituted, so may he have it by long use without any constitution, through the knowledge and acquiescence of the lords, for long acquiescence is taken for consent, as in commons of pasture and the like’ (Br. V3/190 (and similarly V3/166)). Some care is needed in the interpretation of ‘prescription’, however, as it is differently used by Bracton and his apparently contradictory senses of the term have been the subject of much academic debate.22 In some contexts, such as that above, long use with acquiescence is taken to be equivalent to grant. In other contexts, long use may be seen as a reason for maintaining possession, and in others an evidential or procedural bar against a claim to repossession. Equally, writing at a time when a minimum period for the acquisition of prescriptive rights was not provided for by statute, it is unclear what duration Bracton has in mind as being required to show ‘long use’. At least, this must be taken to be whatever (variable) period is needed to show acquiescence in different instances but, beyond that, it is unclear whether any specific period is needed. Although the possibilities for water-related servitudes arising from grant or long use are infinitely various, the possibilities for servitudes imposed by law seem to have been restricted to a number of naturally-arising water rights attached as common incidents of riparian ownership. These included the right to prevent various activities involving water.

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so if a servitude is imposed on another’s land by law, not by man [...] by which one is prohibited from doing on his own land what may damage a neighbour, as where one raises the level of a pond on his land, or makes a new one by which he harms his neighbour, as where his neighbour’s land is flooded, this will be to the wrongful nuisance of his neighbour’s free tenement, unless he was granted permission by his neighbour to do it. (Br. V3/189–90)

Sixth, and finally, an action in nuisance seems to have been seen by Bracton as the appropriate form of action for infringements of servitude rights, including those relating to water, though this is far from clear. Bracton distinguished between the scope of the assize of novel disseisin, for claims of dispossession of land, and the assize of nuisance, for claims relating to interference with land originating outside the land. Hence, whether the act complained of originated on the claimant’s land or the defendant’s determines which action is appropriate. With respect to a pond and weir constructed or destroyed to another’s wrongful nuisance, we must see whether it was constructed entirely on the plaintiff’s tenement, when he has a tenement on both banks of the stream. If so, it will be the disseisin of a free tenement rather than an assise of nuisance. If it was constructed or cast down wholly on the defendant’s tenement, it will there be an assise of nuisance rather than of a free tenement, since it is wholly on the other’s land. If it is partly on his own and partly on the other’s, as where the stream is divided through the middle, he will then have an assise of novel disseisin for the part on his own land and an assise of nuisance for the other. (Br. V3/197)

The boundaries between trespass and nuisance, however, are seriously blurred where Bracton tends to assimilate the two forms of action. Insofar as water rights could be protected by nuisance actions for interference with servitudes, Bracton saw this as requiring a legally recognized kind of harm to be shown. Hence, a nuisance may be rightful or wrongful, wrongful where one on his own land wrongfully does something prohibited by law, contrary to law or a constitution. If he cannot be prohibited by law from doing it, though he creates a nuisance and causes damage it will not be wrongful, for each may do on his own property [whatever he wishes if] wrongful damage does not accrue to a neighbour, as where one erects a mill on his own land and takes from his neighbour his own suit and that of others; he does his neighbour damage but no injuria since he is not prohibited by law or a constitution from having or erecting a mill. (Br. V3/163–4)

Here the possibility of damage being caused without unlawfulness (damna sine injuria) is recognized, perhaps where the establishment of

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a new mill only reduces the profitability of an existing mill, but the basis for determining whether the new mill will be ‘unlawful’ is not addressed. Revealingly, the justification for allowing a landowner to inflict damage on a neighbour in this context, that lawful damage is permissible, seems to conflict with Bracton’s apparent endorsement of the sic utere principle elsewhere (see Br. V3/163). Accepting that there can be damage without unlawfulness in nuisance does not address the converse question of whether there can be actionable unlawfulness without damage (injuria sine damno) as where a trespassory intrusion upon the claimant’s right to land takes place without physical damage of any kind. Although open to interpretation, there are suggestions that Bracton saw a successful action as being available in situations of this kind for the reason that invasion of property, with the prospect of this maturing into a right of adverse possession, without more, constituted sufficient ‘damage’. Hence, as rights and servitudes may be taken away by disseisin, so that he cannot use, so wrongful nuisances may be committed in the appurtenances of things appurtenant, so that he cannot use the aforesaid servitudes, either not at all, as where by a bank, wall, hedge or palisade he completely obstructs the way or path by which the other used to enter the pasture [or] less conveniently [...]. [...] A nuisance of this kind does not differ substantially from a disseisin, and ought therefore to be removed by the assise, when it is wrongful, at the costs of him who erected the obstruction, if it is on his own land; if on another’s an assise of novel disseisin of a free tenement lies for him on whose land the work was erected, and, according as the assise of novel disseisin includes nuisance, because every disseisin is harmful (nocet), by it the nuisance may be removed and damages restored to the plaintiff, both for the disseisin of his tenement and for the nuisance, which would not be true if the suit were only concerned with the nuisance. (Br. V3/190)

Whether this should be taken as allowing a trespass action for interference with a water right, in the absence of physical damage to the claimant, is unclear, particularly because of the more general emphasis that Bracton places upon the need for the claimant to show damage in a nuisance action. Summarising this, Bracton provided a heavily Romanised account of the ‘common law’ on water rights. His characterization of flowing water as common property proved to be an important fixed point of reference for the subsequent discussion of water entitlements. Despite this, his location of water rights, alternatively, in ‘natural rights’ of riparian owners or in servitudes between owners, has been a continuing difficulty. The difference is further confused by the procedural question of what remedy was appropriate for interference with a water flow. His account seemed to appreciate the differences between the protection of water rights as rights

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in land and protecting them as lesser interests of amenity or the enjoyment of land free from nuisances. His ambivalence on the respective appropriateness and priority to be given to these distinct claims has proved to be a continuing problem. SIC UTERE AND NATURAL RIGHTS The sic utere principle Bracton’s contention that certain rights attached to land, including the right to water, should be seen as ‘natural rights’ arising from land ownership provided a foundation for a wider view that protection of these rights is necessary for the amenity or enjoyment of property. Neighbours should not use their land in a way that interferes with these natural or necessary rights. Bracton suggested the basis for servitudes being imposed by law is that ‘no one do anything on his own land by which damage or nuisance accrues to a neighbour’ (Br. V3/163). This idea appears to be closely related to the later articulated principle of sic utere tuo ut alienum non laedas or sic utere. Although the origins of the sic utere principle are obscure, the first clear judicial articulation of the principle is found in William Aldred’s Case (1610).23 Here the plaintiff brought an action on the case for nuisance against his neighbour, the defendant, in respect of air pollution from a pig sty and for blocking of light by constructing a wood pile on adjoining land. The court upheld the plaintiff’s right to enjoy possession of his property free of these interferences on the basis that the rights claimed were based upon natural necessity, rather than through prescription. Interference of these rights will be actionable solely on the basis that they are necessary rights to the enjoyment of a property and ‘this stands with the rule of law and reason, sc. Prohibetur ne quis faciat in suo quod nocere possit alieno [it is forbidden for any one to do on his own property what may injure another’s]: and sic utere tuo ut alienum non laedas’.24 In Aldred’s Case, the characterisation of rights of air and light as being protected for the necessary enjoyment of property, and subject to the sic utere maxim, was recognized to have limitations. Bracton had recognized that ‘depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance’ (Br. V3/216–17). Nonetheless, the special status of ‘necessary rights’ precipitates momentous issues of reconciling private rights to the enjoyment of property with common and socially-useful land uses that have unavoidable adverse impacts. The conflict between private rights and social utility was apparent from an early stage. In Jones v. Powell (1629)25 the plaintiff brought an action in respect of the defendant’s use of sea coal in a brewery,

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complaining of the affects of fumes upon his property and health. It was found that this was the ‘common and principal fuel of the realm, such that without its use no-one could afford to brew and that great prejudice would accrue to the common wealth. And what is necessary for the common wealth shall never be called a nuisance to any private person.’26 Perhaps due to this need for a balance of interests, the common law reception of the sic utere principle as a basis for natural rights in water seems to have been no better than ambivalent. In Brown v. Best (1747)27 the plaintiff brought an action upon the case for diverting a watercourse after the defendant had dug two pits on his land for watering cattle and these reduced the flow of water. The defendant maintained that the pits had been there ‘time out of mind’ but had become silted with mud and he had merely restored them to their former state. Lee CJ took the view that the case should be decided for the claimant. The facts concerned a watercourse that is jure naturæ, where the water currere solebat [‘as it is wont to flow’] from ‘time out of mind’ which had been obstructed by the defendant. Although the pits had existed ‘immemorially’, the defendant had no right to enlarge them to the inconvenience of the claimant. The principle ‘exactly applicable’ to the case was sic utere tuo ut ne laedas alieno. Notably, the ideas that water rights derived from natural law and were subject to the sic utere principle seems to have been provided as an apparently superfluous ground for a decision that might have been equally, and more conventionally, reached on the basis of the defendant’s lack of a prescriptive right to extend the easement by increasing the diversion. The subsequent history of the sic utere maxim in the common law illustrates the progressive appreciation that its intuitive moral attractiveness masks an indeterminacy that makes it of limited value as a legal principle. The difficulty is that, if is taken to be a principle that allows no harm whatsoever to be caused to a neighbour, it is clearly unworkable in preventing socially necessary but ‘unneighbourly’ development. If is taken to allow some degree of harm to be caused, it gives no indication what degree is permissible since there are divergent views on what is to count as ‘unneighbourly behaviour’. Regardless of the sic utere principle, the critical question remains as to the point at which an interference becomes unlawful. Hence, it has been observed that ‘The maxim sic utere [...] is mere verbiage. A party may damage the property of another where the law permits, and he may not where the law prohibits: so that the maxim can never be applied til the law is ascertained, and, when it is the maxim is superfluous.’28 A similar modern expression of this concern, in the context of a nuisance involving flooding, was expressed as follows: This, like most maxims, is not only lacking in definiteness but is also inaccurate. An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability [...]. A balance has to be maintained between the right of the occupier

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to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.29

The progressive appreciation of the shortcomings of the sic utere principle is also illustrated, by its abandonment as a basis for determining later cases concerning groundwater rights. This decline might be seen as a precursor to the development of a reasonable use approach to water rights. Nonetheless, the longer term view in the common law is that the sic utere principle is of limited value in ascertaining where an intrusion upon water use will become unlawful. Natural rights The rise and fall of the sic utere principle in the common law should not be seen as the dismissal of Bracton’s broader idea of water rights as natural rights. This characterization of water rights actually gained currency independently of the sic utere principle. If, as Bracton had maintained, water rights are of natural origin, it should be possible to defend those rights irrespective of claims based upon grant or prescription. The test of this issue was first addressed by the courts in Sury v. Pigot (1625).30 In Sury v. Pigot the plaintiff was possessed of a rectory and adjoining land that ‘time out of mind’ had provided a watering place for cattle. The watercourse was obstructed by the defendant, so preventing this use. It was shown that previously the whole manor had been seized by the king, including the land of the plaintiff and the defendant. The key question was whether the previous unity of ownership had the effect of extinguishing any prescriptive water easement or profit a ` prendre [a right of taking water]. As a general matter it is clear that an easement requires land to be in separate ownership, with a dominant (benefitting) tenement and a servient (burdened) tenement, since it is impossible for a person to have an easement over his or her own land. If this was the case on the facts, a claim to a prescriptive easement was bound to fail because of the previous unity of ownership. If the plaintiff was to succeed, some other basis for the water right had to be established. The court took the view that there is a ‘great difference’ between a right of way and rights to a watercourse: ‘where the thing hath its being by prescription, unity will extinguish it; but where the thing hath its being ex jure naturæ, it shall not be extinguished’ (per Whitlock CJ). In the most detailed judgment, Doderidge J found that, as a matter of pleading, either prescription or custom needed to be shown, but the claimant’s plea, in using the words of currere solebat & consuevit was sufficient to establish a custom. In substance, Doderidge found two reasons why unity of

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possession should not extinguish the right to water: necessity and the nature of the running watercourse. On necessity, he found that certain rights, including the right to water, were appendant to land ‘for the preservation of the commonwealth’. Even in relation to easements of way, therefore, unity of possession would not extinguish that they are ‘a way of necessity’, citing a route to a market or church as examples of this. Similarly a flow of water could be a necessary right, for example, where a flow from a gutter was a necessary aspect of possession. In relation to the natural characteristics of water, Doderidge J. said, from the nature of water, which naturally descends, it is always current, et aut invenit autfacit viam [‘finding or making its way’], and shall such a thing be extinguished which hath its being from the creation [...] a mill is a necessary thing, and if I purchase the land upon which the stream goes which runs to this mill, and afterwards I alien the mill, the water-course remains [...] and the principal case in Luttrel’s Case,31 a fulling-mill made a water-mill, this shall not alter the nature of the mill, but yet it remains a mill, so the water hath its course notwithstanding the unity.

In short, the finding for the claimant was based upon the necessary or natural appurtenancy of certain rights in land, including the right to the flow of water that was claimed. As a consequence of this, the right was regarded as a permanent and inherent part of the land to which water customarily flowed, rather than a transient right arising from servitude between riparian owners. Bracton’s account of water rights as servitudes, insofar as these were founded on grant or prescription, may be seen to have been overridden by the analysis based upon natural rights arising from land ownership. Blackstone and prior appropriation Sir William Blackstone’s Commentaries on the Laws of England,32 ‘were the first connected and reasonably comprehensive survey of English law since Bracton, and perhaps the most stylish and readable contribution ever made to English legal literature’.33 Within Blackstone’s Commentaries, a systematic account of water rights is provided that involves an assimilation of rights in water to those that exist in land.34 Blackstone saw property rights as a means of defending natural rights of divine origin, whereby a creator gave ‘dominion over all the earth’ which involved a gift of ‘the general property of all mankind’ (Bl. V2/3). ‘But when mankind increased in number, craft and ambition, it became necessary to entertain conceptions of more permanent dominion’ (Bl. V2/3). ‘Long occupancy [...] ripened into an established right’ on the basis that ‘bodily labour, bestowed upon any subject which before lay in common to all men [...] the fairest and most reasonable title to an exclusive property therein’

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(Bl. V2/5). Hence, legal rights were seen as a means of defending natural rights to property established by occupancy and use against increasing competition from others. Despite the general root of claims to property being found in the act of appropriation by the first taker (Bl. V2/8–8),35 Blackstone excludes certain categories of natural resources from being the ordinary subject of property: There are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such [as wild] animals [...]. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards. (Bl. V2/14)

Within the interests that may exist in land, Blackstone distinguishes between corporeal and incorporeal interests. Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. (Bl. V2/17)

Unlike Bracton, however, Blackstone generally places water in the category of corporeal property. Hence, with the exception of fishing rights, water is conceived of by Blackstone as a corporeal hereditament, alongside other interests in land, but with some qualification. It is observable that water is here mentioned as a species of land [...] and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only [...] but I must bring my action for the land that lies at the bottom, and must call it [...] land covered with water. For water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man’s, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immovable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other. (Bl. V2/18)

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Despite their general classification as corporeal property, interests in water are seen to differ from other corporeal interests in a way that leads Blackstone to term them ‘qualified’ property. Many other things [apart from wild animals] may also be the objects of qualified property. It may subsist in the very elements, of fire or light, of air, and of water. A man can have no absolute permanent property in these, as he may in the earth and land; since these are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer. If a man disturbs another, and deprives him of the lawful enjoyment of these; if one [...] fouls his water, or unpens and lets it out, or if he diverts an antient watercourse that used to run to the other’s mill or meadow; the law will animadvert [‘censure’] hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession; for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use. (Bl. V2/395)

Notwithstanding the differences between corporeal rights in land and the rights of qualified property in natural resources, including water, Blackstone followed the same approach that he had applied to land in giving priority to first appropriator of a natural resource: Thus too the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an antient window overlooking my neighbour’s ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him than in me. If my neighbour makes a tan-yard, so as to annoy and render less salubrious the air of my house or garden, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour’s prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current. (Bl. V2/402–3)

The last sentence of this passage has been widely quoted and may be taken to encapsulate his view on priority of water rights. In essence, for Blackstone, water is regarded as the subject of a corporeal right of a transient kind, which admits individual property while in use where the right of use is established by prior appropriation. The contrast between this approach to water rights and that of Bracton is readily apparent. Whereas Bracton took water rights to be servitudes or natural rights, established by grant, prescription or imposed by law, Blackstone’s approach makes use of none of these devices. For Blackstone, a priority right to water use is

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determined by the fact of first use, apparently, in the case of water rights, without the need to resort to any prescriptive period to cement that right. Blackstone on the protection of water rights Alongside Blackstone’s Commentaries providing a distinctive account of how water rights are acquired, he also provided important discussion of how they should be protected under the common law. Within the sphere of private rights, Blackstone drew distinctions between personal actions (for damages), real actions (for title in property) and mixed actions (involving both) (Bl. V3/117–18). He also distinguished between civil injuries according to whether they involved force or violence (Bl. V3/119). For kinds of injury not involving this kind of dispossession, the appropriate action was seen to be trespass on the case (nuisance) which is seen as a ‘universal remedy, given for all personal wrongs and injuries without force’ (Bl. V3/122). However, Blackstone also distinguishes actions in trespass and nuisance according to the directness of the injury involved so that, ‘whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought’ (Bl. V3/208/9). In addition, a further distinction is drawn between injury to enjoyment of property and injury to the right of property, though Blackstone considers it, ‘more commodious and easy to consider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights, of property’ (Bl. V3/138). Despite these potentially differing bases for distinguishing trespass from nuisance, the scope for trespass action for interference with water rights seems to have been seen as limited, except where a physical intrusion upon the claimant’s land could be shown. The more likely route to a remedy for interference with water rights lay in private nuisance, which Blackstone defined as ‘any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another’ (Bl. V3/216). In relation to nuisances affecting dwellings, Blackstone identifies various nuisances, including stopping ancient lights and corrupting the air with noisome smells, which are ‘indispensable requisites’ (Bl. V3/216) of every dwelling, suggesting that they have a basis in necessary or natural rights. Alternatively, a basis for these rights might be found in the sic utere maxim or because of the priority afforded to the first user of land. Hence, he states, there is an injurious nuisance if ‘one’s neighbour sets up and exercises an offensive trade; as a tanner’s, a tallow-chandler’s, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, ‘‘sic utere tuo ut alienum non laedas’’’ (Bl. V3/217).

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Similarly endorsing the sic utere principle, he states, With regard to other corporeal hereditaments: it is a nuisance to stop or divert water that used to run to another’s meadow or mill; to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream; or, in short, to do any act therein that in its consequences must necessarily tend to the prejudice of one’s neighbour. So closely does the law of England enforce that excellent rule of gospel morality, of ‘doing to others as we would they should do unto ourselves (Bl. V3/218–19).

It is evident that Blackstone regarded interferences with water rights as being primarily actionable in nuisance, even where they involved inaction through failure to ‘scour a ditch’ (Bl. V3/218). However, the general basis for a nuisance action is far from clear. One interpretation is that the sic utere principle prevents lawful activities being undertaken in locations where they have sufficiently adverse environmental consequences (irrespective of the sequence of establishment). Another view is that an earlier land use should always be protected against interference by a later land use (even if the earlier use offends the sic utere principle). On either interpretation, Blackstone’s view is dismissive of any natural rights that owners of riparian land might be seen as having in the flow of a stream, particularly where it is not yet appropriated for milling or any other purpose. His view is also uncompromising as regards the social utility of competing water-use activities or the balance of interests between actual and prospective water users. If a watercourse is already being used for milling, Blackstone’s blunt message to a prospective mill operator is ‘go elsewhere’. The judicial reception of prior appropriation Blackstone’s affirmation that rights to water are acquired by prior appropriation fitted neatly with his conception of the origins of land ownership, but was difficult to reconcile this with other bases for riparian rights. Insofar as these rights had been previously characterised as arising from the ownership of riparian land, as modified by grant or prescription, the fact that a particular owner was the first to utilise the flow of a stream should not be the key factor in determining whether this has priority over the rights of others. In effect, prior appropriation elevates the first user’s claim above claims founded upon the other bases and fixes the right from the point of first use without the need for any prescriptive period to be shown. Prior appropriation is also problematic because it focuses upon questions of competing uses, and interference with these. This neglects the question of whether the right to a flow of water should be seen as a right to the amenity of riparian land, irrespective of whether or not it is actually used, and protected as such without the need for damage to an existing use to be shown.

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Perhaps for these reasons, prior appropriation received only a limited endorsement by the English courts, and eventually met with disapproval, at least in the strongest form in which Blackstone’s formulation might be understood.36 An early instance of limited endorsement of prior appropriation may be seen in Bealey v. Shaw (1805).37 Here, the plaintiff (downstream) mill owner claimed that the defendant (upstream) mill owner had increased water use and diverted water from the downstream mill. It was held that the owner of land through which a river runs may not enlarge a channel through which the water had previously flowed or divert a greater quantity to the prejudice of another landowner who had previously used the surplus water. The judges, however, seemed to reach this conclusion on markedly different bases. Le Blanc J appears to have endorsed the plaintiff’s claim on the basis of prior use of the water: For the true rule is, that after the erection of works and the appropriation by the owner of the land of a certain quantity of the water flowing over it, if a proprietor of other land afterwards take what remains of the water before unappropriated, the first mentioned owner, however he might before such second appropriation have taken to himself so much more, cannot do so afterwards.38

By contrast, Lord Ellenborough CJ preferred the view that a right to water use could be founded on occupation based on a grant or 20 years’ prescriptive enjoyment affording a conclusive presumption of that right. Nonetheless, he accepted that an enjoyment for less than the prescriptive period might create a presumption of implied grant through acquiescence to the adverse right. Williams v. Morland (1824)39 may be seen as providing a less ambivalent endorsement of prior appropriation as a basis for water rights. Here, the downstream plaintiff maintained that upstream damming of the flow by the defendant had caused damage to the downstream banks, but no deprivation of use of water or other damage was shown. Despite argument that interruption with the flow of water was itself an injury in the form of a trespass to the downstream land, the court held that some actual injury to an existing use of the water flow had to be pleaded. According to Bayley J, the party who obtains a right to the exclusive enjoyment of the water does so in derogation of the primitive right of the public. Now if this be the true character of the right to water, a party complaining of the breach of such a right ought to shew that he is prevented from having water which he has acquired a right to use for some beneficial purpose.40

The other judges concurred on the need for the plaintiff to show damage, with Littledale J. observing:

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Water is of that peculiar nature, that it is not sufficient to allege in a declaration, that the defendant prevented the water from flowing to the plaintiff’s premises. The plaintiff must state an actual damage accruing from the want of the water. The mere right to use the water does not give a party such a property in the new water constantly coming, as to make the diversion or obstruction of the water, per se, give him any right of action.41

Hence, the idea of water rights being acquired by first use gained gravity, insofar as a claimant would be unable to succeed unless damage to a prior existing use was shown. Deprivation of flow of a watercourse was not seen as a ground for an action, unless this involved harm to an existing use. Perhaps the high water mark of this view is to be seen in the confident statement that, ‘by the law of England, the person who first appropriates any part of the water flowing through his land to his own use, has the right to the use of so much as he thus appropriates, against any other’.42 There were, however, instances where prior appropriation, at the expense of a natural right to a water flow, was not so readily accepted. In Saunders v. Newman (1818)43 the plaintiff mill owner had, for over 40 years previously, used the water flow to a certain extent. Subsequently, the use of water was reduced following the installation of a more efficient water wheel. The downstream defendant mill owner then raised the dam on his mill pond to a higher level, forcing water back and reducing the water fall at the plaintiff’s mill. The plaintiff claimed an injury to the accustomed flow, which was assessed against the earlier water use, rather than lesser use since the installation of the new wheel. The Court of King’s Bench, again including Lord Ellenborough C.J., took the view that obstruction of water could not be allowed prejudice a mill owner, even if he had not used the flow immediately prior to the diversion, and had suffered no harm to present use. In effect, the natural or prescriptive right to water use was protected, despite this no longer being needed and despite no damage to the present water use being shown. These conflicting judicial views on the status of water rights gained by prior appropriation, and the extent to which the law should protect rights in waterside land as opposed to water uses, were eventually resolved in Mason v. Hill (1833)44 by the reinstatement of natural rights as the governing principle. In this case, the downstream plaintiff owned riparian land that had been used, for more than 20 years before, for agricultural purposes. The defendant owned upstream land on which a mill was built. The defendant also took water from other sources, however, that had previously flowed into the stream to supply his mill. Subsequently, the plaintiff constructed a downstream mill that used the surplus water flowing over the defendant’s dam. The plaintiff demolished the defendant’s dam. The defendant constructed a new dam lower down the stream and, occasionally, diverted all the flow of the stream and the

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water diverted from other sources and, at other times, returned heated water to the stream, making it less suitable for milling purposes. The legal issue was as to whether the plaintiff should be able to recover damages for the total or partial diversion and the heating of the water that was returned to the stream. Setting aside a claim that the defendant’s actions had been justified by a parole licence from the plaintiffs predecessor, the central issue was whether the defendant’s claim of a right to water by appropriation, which had existed for less than the prescriptive period of 20 years, should take priority over the plaintiff’s claim to a use that had been established for longer than that time. Although Denman C.J. felt that the dispute could be determined for the plaintiff on this narrow ground alone, he thought it better to discuss and settle the principles on which rights of this kind depended and to give the reasons for the judgment ‘more at large’. Denman accepted that first appropriation of water gave rise to a right of the user not to have that use prejudiced by the actions of other riparian owners, so that the owner of a newly-erected mill would be entitled to a remedy for consequential injury to the operation of the mill if the stream were to be diverted or obstructed. It is, however, ‘a very different question, whether he can take away from the owner of the land below, one of its natural advantages [...] even when unapplied; and deprive him of it altogether by anticipating him in its application to a useful purpose. If this be so, a considerable part of the value of an estate, which, in manufacturing districts particularly, is much enhanced by the existence of an unappropriated stream of water with a fall, within its limits, might at any time be taken away.’45 In short, prior appropriation may be a ground for protecting the first user’s right to that use, but not as a ground for depriving other riparian owners of their natural rights to the use of the stream. After referring to Blackstone and Roman sources, 46 Denman concluded, it seems that the Roman law considered running water, not as a bonum vacans [‘a vacant good’], in which any one might acquire a property; but as public or common, in this sense only, that all might drink it, or apply it, to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that particular portion, which he might have abstracted from the stream, and of which he had the possession; and during the time of such possession only. The passage in Blackstone [...] in which water is said to be publici juris, are not to be understood in any other than this sense; and it appears to us there is no authority in our law, nor, as far as we know, in the Roman law [...] that the first occupant (though he may be the proprietor of the land above) has any right, by diverting the stream, to deprive the owner of the land below, of the special benefit and advantage of the natural flow of water therein.47

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Mason v. Hill is an important decision in providing the most direct judicial engagement with prior appropriation as a basis for water rights. The clear preference of the court was for these rights to be based upon the natural rights of riparian owners, subject to rights acquired by grant or prescription. Insofar as the argument for rights through prior appropriation was not categorically disapproved of, it was recast as a much narrower principle than formulated by Blackstone. The rights of a prior appropriator must be protected from interference, but prior appropriation, by itself, does not justify interference with the natural rights of other riparian owners. Prior appropriation should be seen as a ground for protecting recent uses, but, without prescription, not as a basis for establishing new rights against other riparian owners in the way that Blackstone had suggested. In part, this may be seen as a resistance of the court towards the privatization of common rights in water use. Alternatively, it may be seen as a means of avoiding a race to harness water resources, which would have the effect of dispossessing tardy water users of the potentially important benefits of riparian land ownership. Whichever case occurs, prior appropriation, in its stronger formulation, had reached a judicial dead end. EMBREY V. OWEN AND REASONABLE USE By the mid-nineteenth century the common law relating to water rights was in a shambolic state. The judicial and commentary legacy of the previous centuries comprised a collection of different principles, capable of leading to contradictory outcomes in particular cases. Alternatively, arguments of competing water users might be based upon natural rights arising from the ownership of waterside land; the grant of water easements or prescription amounting to grant; the sic utere principle; and rights arising from prior appropriation, at least within limits. Embrey v. Owen (1851)48 provided a rationalization of these principles by establishing the reasonable enjoyment or use of water as the overriding consideration governing water rights, and remains the most important common law decision concerning rights in running water. In Embrey v. Owen the downstream plaintiff operated a corn mill and the defendant was the owner of tenanted land on both sides of the river upstream of the mill. The dispute concerned the defendant’s diversion of part of the flow of the river for the purpose of irrigating meadows. With the exception of water absorbed by the soil, the diverted flow was returned to the river above the mill. At the first instance trial, it was found that that there had been no sensible diminution in the flow and that the losses were of small and inappreciable quantities. In the Court of Exchequer the defendant maintained a right of every riparian proprietor to use a stream for natural and normal purposes,

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domestic and agricultural, including irrigation, providing that there is no interference with the rights of other riparian proprietors. Mason v. Hill was taken as an authority for the equal rights of riparian proprietors, though it was noted that this did not decide whether this allowed the use of water for irrigation. Despite the absence of clear authority on water use for irrigation, it was noted that other jurisdictions allowed the reasonable use of water for irrigation, providing it was not unreasonably detained and was returned essentially undiminished in quantity. Against this, the plaintiff argued that abstraction should not be allowed beyond the exceptions already accepted under common law concerning domestic purposes and watering cattle. Even though no pecuniary damage had been sustained by the diversion, it was argued that the continuance of this would establish an easement, and so create an adverse right. Hence, the damage comprised an injury to a right that, if allowed, would enable others to undertake similar diversions, which cumulatively would cause actual pecuniary damage through the establishment of successive adverse rights. For Parke B, the ‘important question’ concerned the trial finding that no sensible diminution of the natural flow of the stream to the mill was caused by the diversion of the water. The working of the mill was not impeded and, for that reason, the verdict for the defendant was properly ordered. However, the basis for that conclusion required a detailed analysis of the most general principles of water rights and the application of these principles to a novel situation, particularly whether abstraction for irrigation came within the rights of a riparian proprietor. If the plaintiff’s argument for a right to the full flow of water was accepted, it would follow that any abstraction of water, however small, would be actionable because it was an injury to the right to the flow, irrespective of actual damage being shown. In response, Parke acknowledged the legal presumption that damage occurs where there is violation of a right: injuria sine damno [a legal wrong that causes no actual damage].49 In applying this principle to the case of rights in running water, however, the nature of those rights must first be considered to ascertain what is to count as a violation of them. In summary, Parke formulated the general principles of water rights as follows. The right to have the stream flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes. Flowing water is publici juris, but not in the sense that it is a bonum vacans to which the first occupant may acquire an exclusive right, but remains public and common in the sense only that all who have a right of access to it may reasonably use it. No user may have any property in the water itself, except where a particular portion is abstracted from the stream and taken into possession, and that property subsists only during the time of possession. Hence, each riparian proprietor has the right to the usufruct of the stream. This right to the

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benefit and advantage of the water is not an absolute and exclusive right to the flow of all the water in its natural state, but it is a right only to the flow, and the reasonable enjoyment of it, subject to the similar rights of all the other proprietors.50 The final point, on the right to reasonable enjoyment, was most critically important for the determination for the case in hand. If the defendant had a right to the ‘reasonable enjoyment’ of the flow of the river, and the irrigation came within this, the plaintiff’s argument that this use of the water contravened existing rights or could provide the basis for an adverse right must fail. The difficulty, however, lay in the lack of a clear precedent on whether irrigation came within the scope of ‘reasonable enjoyment’. The absence of a decisive English authority allowed Parke to range widely in looking at how this issue had been addressed in other jurisdictions, and he drew particularly on the approach adopted in the United States of America and France for guidance. He quoted a length from Kent’s Commentaries on American Law,51 where he felt the law on the subject is ‘most perspicuously stated’. To some extent this reaffirmed the general principles stated above, but on the question of what constitutes a ‘reasonable use’ it was noted that, streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided [that there is no material injury or annoyance to other users] and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current. But de minimis non curat lex [‘The law does not concern itself with trifles’...]. All that the law requires of the party by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish or affect the application of the water by the proprietors above or below on the stream.’

A similar approach was found to have been taken in French law.52 Informed by the approach taken in these jurisdictions, Parke took the view that the dispute at issue should be determined by the same test of reasonableness with regard to the defendant’s use. Recognising that the impact of irrigation is a matter of degree depending upon the particular circumstances, there is often no difficulty in deciding whether a particular case falls within the permitted limits or not; and in this we think, that as the irrigation took place, not continuously, but only at intermittent periods, when the river was full, and no damage was done thereby to the working of the mill, and the diminution of

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the water was not perceptible to the eye, it was such a reasonable use of the water as not to be prohibited by law. If so, it was no infringement of the plaintiffs’ right at all; it was only the exercise of an equal right which the defendant had to the usufruct of the stream.53

The reception, by subsequent courts, of Parke’s principle of ‘reasonable enjoyment’ by riparian owners seems to have been universally positive. It was observed that ‘questions of rights to flowing water have been much discussed in modern times in several cases (including Embrey v. Owen) and placed on their proper foundation’.54 In Sampson v. Hoddinott (1857)55 Cresswell J. restated the principles from Embrey v. Owen decision to emphasise that unreasonable water use would be actionable irrespective of damage: ‘if the user by the defendant has been beyond his natural right, it matters not how much the plaintiff has used the water, or whether he has used it at all. In either case, his right has been equally invaded, and the action is maintainable.’56 The opportunity for a higher court to consider the reasonable use principle arose in the Privy Council case of Miner v. Gilmour (1858).57 The dispute over water use between an upstream tannery and a downstream corn mill was factually complicated, but found ultimately to depend upon general principles stated as follows: every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But, he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury.58

Here, the basic principle of reasonable use, derived from Embrey v. Owen, is authoritatively endorsed, subject to a refinement in terminology that distinguishes between ‘ordinary’ and ‘extraordinary’ uses. An ordinary use is permissible, irrespective of its impact upon other users, whereas an extraordinary use will be allowed only where it causes no interference with the rights of other proprietors. Under this terminology, a ‘reasonable use’ may be either an ordinary use or an extraordinary use that does not cause harm. The establishment and endorsement of reasonable use as the governing principle for riparian water use brings about a skilful reconciliation of the

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contradictions between previous bases for establishing water rights. It is, however, a principle that replaces the relative, if capricious, certainty of the previous bases by an approach that involves a high degree of judicial discretion. Although guided by precedent,59 it is for a court to determine whether particular uses, to a particular extent, are to be deemed ‘reasonable’. Whatever its limitations, the establishment of reasonable use of water has been seen as marking a ‘terminus’60 in the development of the common law, at least in respect of the rights of riparian owners in running water. Without detracting from this, it is important to note a range of water-related issues that Embrey v. Owen did not finally determine. WATER RIGHTS FALLING OUTSIDE THE REASONABLE USE PRINCIPLE Groundwater rights Although reasonable use may now be seen as the key common law principle governing the rights of riparian owners to the use of a flowing surface watercourse, it has not secured complete consistency in the law relating to water rights more generally. The reasonable use requirement for flowing surface waters stands in marked contrast to the approach that has been taken by the common law in respect of rights to abstract or redirect groundwater and the entitlement to transfer abstracted groundwater beyond the land from which it was abstracted.61 The root of the common law on groundwater is to found in Acton v. Blundell (1843)62 where the plaintiff’s use of underground water to drive machinery at a cotton mill was obstructed by the defendant, who had sunk shafts to secure drainage of a mine. The plaintiff could show no prescriptive right to the subsurface water, but stressed that the right to the water use was a natural right arising from ownership of the land, so that interference with this right should come within the sic utere principle. Against this, the defendant argued that it needed to be shown that the plaintiff had sustained injury to his legal right to the use of land, ‘which is the whole question’. Although accepting Mason v. Hill as an authority for rights to the flow of a surface watercourse, Tindal C.J. found ‘a marked and substantial difference’ in the approach that should be taken to groundwater. The reason for this lay in the fact that groundwater does not flow openly in the sight of each neighbouring proprietor, so there can be no reason to imply any natural consent or agreement between neighbouring landowners or to base a right to groundwater on the long continued acquiescence of others to its use. In addition to this difficulty in establishing a servitude to groundwater use, Tindal was also appreciative of the potentially disproportionate implications of protecting rights to groundwater, since

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this might prevent a neighbouring landowner making a use of land that was of inestimable value. For example, this could occur where mining, potentially over a large district, might be prevented by protecting the right of a single property to maintenance of the water table to supply a well for domestic use. In Tindal’s view, the case fell within the principle that, gives to the owner of the soil all that lies beneath his surface [...] and that the person who owns the surface may dig therein, and apply all that is there found to his own purpose as his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbours well, this inconvenience to his neighbour falls within the description of damnum absque injurial, which cannot become the ground of an action.63

Later decisions extended this approach to situations where operations conducted by a landowner have the affect of directing groundwater to neighbouring land, rather than turning it away. In Smith v. Kenrick (1849)64 the plaintiff’s complaint was that his mine had been flooded by drainage operations undertaken in a nearby mine operated by the defendant. Following Acton v. Blundell, it was found that there was a ‘natural right of each of the owners of two adjoining coal mines [...] to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be, that some prejudice will accrue to the owner of the mine, so long as that does not arise from the negligent or malicious conduct of the party’.65 Again, the decision shows a reluctance to allow the sic utere principle to be used to prevent beneficial neighbouring land use, even where this gives rise to serious harm. The principle of Acton v. Blundell was also extended to apply to surface water that does not flow in a defined channel. In Rawstron v. Taylor (1855)66 an action was brought for interference with the water supply to a factory resulting from drainage operations on the defendant’s estate undertaken for the improvement of agricultural land that had the effect of diverting water away from a stream that supplied the plaintiff’s premises. The water that had been intercepted was not a spring or stream, but a ‘gathering of surface water’ and the drainage work that has been undertaken did not involve any infringement of a prescriptive right. The court found, this is the case of common surface water rising out of springy or boggy ground, and flowing in no definite channel, although contributing to the supply of plaintiff’s mill. This water having no defined course, and its supply being merely casual [the defendant] is entitled to get rid of it in any way he pleases [...] for the purpose of cultivating his land in any way he pleases.67

The principle that reasonable use only applies to watercourses that flow in a defined channel was authoritatively confirmed by the House

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of Lords in Chasemore v. Richards (1859).68 This case involved a dispute about abstraction of water by a local health board by means of a well constructed for the purpose of supplying the population of Croydon and, significantly, for a use not connected with the land where the well was sunk. The effect of the abstraction was to prevent the water flowing to a river that had supplied the plaintiff’s mill for over 60 years. The plaintiff’s action against the diversion failed. The court found that effect of the abstraction could not be accurately predicted, though the probable effects might have been anticipated, and the plaintiff had acted without bad faith. Natural right reasoning for a right to a supply of groundwater was rejected, with the leading speech of Lord Chelmsford stressing that the principles which apply to water in flowing streams are wholly inapplicable to water percolating through underground strata, which has no certain course, no defined limits, but which oozes through the soil in every direction in which the rain penetrates. [...] If the owner of land through which the water filters cannot intercept it in its progress, can he prevent its descending to the earth at all, by catching it in tanks and cisterns? And how far will the right to this water supply extend?69

On this view, the practical difficulty in formulating any clear limit that could be placed upon groundwater use was seen to lead to the conclusion that proprietors should not be restricted in any use they made of indefinite water flows. Lord Wensleydale, in contrast, found a more utilitarian justification for not restricting a landowner’s use of groundwater: As the great interests of society requires that the cultivation of every man’s land should be encouraged, and its natural advantages made fully available, the owner must be permitted to dig his own soil, and, in so doing, he can very rarely avoid interfering with the subterraneous waters flowing or percolating in his neighbour’s land.70

Whether based on social benefit or simply practicality, the unwillingness of the courts to develop a principle of reasonable use in relation to groundwater and surface water outside defined channels, has had rather dramatic legal consequences. As has been noted, in Smith v. Kenrick (1849) flooding a mine by groundwater was found not to give rise to liability so long as it did not arise ‘from the negligent or malicious conduct of the party’. The issue of the motive of the person undertaking an activity affecting groundwater came to a head in Bradford Corporation v. Pickles (1895).71 Here, the defendant sunk a well and intercepted percolating underground water purposefully to coerce the plaintiff local authority into buying his land at a premium in order to secure a municipal water supply. The defendant had no intention

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to use the water for any purpose of his own and the plaintiff argued that a nuisance motivated by malice was an abuse of right and always wrongful. The House of Lords declined to endorse an approach based on abuse of rights in respect of acts motivated by economic self-interest. As Lord Macnaghten put the point, the plaintiffs say that the defendant’s action in the matter is malicious and that because his motive is a bad one, he is not at liberty to do a thing which every landowner in the country may do with impunity if his motives are good [...]. Well, he has something to sell, or, at any rate, he has something which he can prevent other people enjoying unless he is paid for it [...]. He prefers his own interest to the public good. He may be churlish, selfish, and grasping. His conduct may seem shocking to a moral philosopher. But where is the malice? [...] In such a case motives are immaterial. It is the act, not the motive for the act, that must be regarded.72

Bradford v. Pickles, while of major importance in directing the common law away from any general doctrine of abuse of rights, is also of significance in marking a high water mark in the right of a landowner to use groundwater in a way that is seen fit, irrespective of the impacts upon neighbours and socially-useful activities. The contrast with reasonable use constraint upon the use of water flowing in a watercourse could not be more emphatic. Appurtenancy The extremity of the approach adopted towards groundwater activities in Bradford v. Pickles may be contrasted with the approach to use of a surface watercourse in another respect. This concerns the differing treatment of groundwater and surface water in respect of appurtenancy: that is, the relationship between a water use and land from which the water is taken. Put simply, does diverted or abstracted water need to be used on land from which it is taken? In respect of groundwater, the issue of appurtenancy was raised in Chasemore v. Richards (1859) where the plaintiff argued that it was unlawful to abstract groundwater and export it to provide a drinking water supply for Croydon. The court rejected the plaintiff’s argument to the effect that the abstracted water should only be used for a purpose within the land from which it is abstracted. As it was put, ‘it seems to be exactly the same thing whether the water is abstracted by one large well, which supplies the whole community, or by a thousand small wells, by which each individual of the community supplies himself’.73 The legal position, therefore, is that there is no requirement of appurtenancy so far as groundwater use is concerned. The opposite position has, however, been established in respect of water drawn from a watercourse. The matter was considered in a succession of

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cases where water companies were seeking to secure drinking water supplies against riparian owners and competing users. In Stockport Waterworks Co v. Potter (1864)74 a riparian owner granted the plaintiffs rights in a water supply works, taking water from a river, but the plaintiffs did not own any riparian land. The plaintiff sued an upstream proprietor for pollution of the stream. It was held that the plaintiffs could not claim the rights of a riparian owner, to sue for water pollution, since they held no riparian land. The decision may be seen as illustrating that riparian rights cannot exist in gross or be assigned in any way except in conjunction with riparian land. The ‘easement’ for water use that the plaintiff claimed was doubted, because of lack of connection between the ‘dominant’ and ‘servient’ tenements owned by the plaintiffs and defendants, respectively. As it was put, ‘If the waterworks could be considered a dominant tenement every house in Stockport to which water flowed through pipes might equally be so’. This decision seemed to support the defendant’s contention that, ‘the rights even of a riparian proprietor himself would not extend to the abstraction from the stream of water for the use of a populous town situated on land in no way connected with such stream, and the conveyance of it away from the river-side to a considerable distance for that purpose without returning it into the stream’.75 The matter was decisively addressed in Swindon Waterworks Co v. Wilts and Berks Canal Co (1875).76 This affirmed the principle that riparian rights did not permit water to be abstracted as a saleable commodity to persons unconnected with an appurtenant riparian property. The defendant water company had abstracted water to supply a town and, in doing so, had denied the plaintiff water needed for a canal. The House of Lords applied the test of allowing ordinary use and reasonable extraordinary use of water. Lord Cairns found that a reasonable use of natural flow must be for purposes connected with the tenement of the owner. Hence a utility company owning riparian land could not pump any amount of water to supply a town, for this was ‘not for the purpose of their tenement at all, but was a complete diversion of the stream, an annihilation of the water, a confiscation or alienation of the rights of lower riparian owners’. The plaintiff was granted an injunction restraining the defendant’s appropriation of the water.77 CONCLUSION: A RENAISSANCE OF THE COMMON LAW? The definitive assessment must stress the ‘end point’ that the common law has presently reached, albeit by a rather circuitous route. Use of water by riparian owners is governed by the reasonable use principle. Riparian owners may take unlimited water for ordinary uses and further water for extraordinary uses where this causes no harm to other riparian owners. However, whether this leaves the common law in an entirely satisfactory

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or consistent state is debateable. In terms of hydrological rationality, or fairness, it is difficult to defend a position where a landowner can abstract any amount of groundwater before it reaches a watercourse, but only a reasonable amount thereafter. Clearly, surface water flows are determined by a range of activities within their catchments and groundwater removal will inevitably have an effect upon surface water flows. Seeking to protect the flow of a watercourse by ‘turning a blind eye’ to anything done beyond its banks may now be seen as spectacularly irrational. Placed at a time when hydrological knowledge was in its infancy, however, perhaps Victorian judges should be forgiven for their unwillingness to embrace primitive hydrological knowledge of the interdependency of surface and groundwater. If the common law had continued to develop, it might be speculated that further rationalization of this anomaly might have been addressed. However, the common law on water rights ossified some years ago, and certainly by the end of the nineteenth century. The decline in civil litigation on milling rights may be a consequence of water power being replaced by other energy sources and for other reasons. The uncertainties in acquiring significant water rights under common law led to the increasing use of statutory mechanisms to achieve this. In the case of canals, water supply and other major infrastructure projects, authorizations for water use were provided by private or local acts of Parliament, which overrode the rights of riparian owners. Beyond that, civil disputes about water use and abstraction between competing users have been largely replaced by statutory regimes governing the uses that riparian owners may make of watercourses or the circumstances in which groundwater may be abstracted in anything beyond minimal quantities. With regulatory authorities determining the permissibility of the most significant water-use activities, there has been relatively little left to be determined by civil litigation between riparian mill owners and other competitors for water use.78 There might, however, be a prospect of a renaissance of the common law. The decline in milling that has been recounted may be about to change. This is because of the financial incentives being offered by the government for hydropower schemes, which reduce dependency on fossil fuels and thereby reduce greenhouse gas emissions.79 The effect of this is that hydropower companies are presently surveying watercourses to identify suitable sites for the installation of generating facilities and seeking authorizations for their establishment.80 Although, the new generation of hydropower is still in its infancy, there is clear potential for conflict between uses and a revival of litigation on water use for hydropower in the future.81 Finally, the limitations of this discussion must be reiterated. The focus upon the ways in which the English common law has addressed one particular kind of water use, in milling, has directed attention from the

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obvious fact that water use is multi-faceted. Had the discussion taken the law on navigation, fisheries, pollution, water supply or a range of other issues as a focal point, the line of argument might well have been markedly different. Nonetheless, the basic principle of reasonable use governing milling activities has clear implications for other uses. If, as suggested, water milling is set for a revival, the issues are unlikely to be considered solely within the single dimension of water use adopted in this discussion, but will test the cross-sectoral applicability of reasonable use. Future hydropower will be set in a markedly different context where the competition may be not so much between different operators as between hydropower and other water uses. Most notable perhaps are present-day ecological concerns about water, which simply did not feature in the cases that gave rise to the reasonable use principle. For the future, perhaps, the key question for the common law will be whether ‘reasonable use’ entitles a waterside owner to water in its natural ecological state. Insofar as modern hydropower installations are seen to threaten damage to fish and other wildlife, the battle lines for the future are significantly different from those of the past. ‘Reasonable use’ may be entering a qualitatively new phase. NOTES * The author is grateful to Professor Geoffrey Samuel of the University of Kent and the editors of this collection for their helpful comments on an earlier draft of this chapter. 1 More detailed accounts can be found in T. E. Lauer ‘The Common Law Background of the Riparian Doctrine’, Missouri Law Review 60 (1963), p. 28 (hereafter ‘Lauer’); A. Scott and G. Coustalin, ‘The Evolution of Water Rights’, Natural Resources Journal 25 (1995), p. 821 (hereafter ‘Scott and Coustalin’); and J. Getzler, A History of Water Rights at Common Law (2004) (hereafter ‘Getzler’). These studies are gratefully acknowledged as general sources informing this discussion. 2 sic utere tuo ut alienum non laedas [‘use your property in such a way as not to harm others’] or sic utere [‘use it thus’]. 3 T.S. Reynolds, Stronger than A Hundred Men (1983) (hereafter ‘Reynolds’) Chapter 1. 4 M. Bloch, ‘The Advent and Triumph of the Watermill’, in J.E. Anderson (trans.), Land and Work in Mediaeval Europe (1967), p. 136 and Getzler pp. 16–21. 5 E.M. Carus-Wilson, ‘An Industrial Revolution of the Thirteenth Century’ Economic History Review 1 (1941), p. 11. It was during this period of significant industrial change that Henry de Bracton provided the first detailed account of water rights in English law, discussed below. 6 A.E. Musson, The Growth of British Industry (1978) p. 43. 7 Reynolds p. 328. 8 A.E. Musson, 1978: 108–9.

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9 Reynolds: 123. 10 Sir William Blackstone’s Commentaries on the Laws of England (1765–9) provides the most important statement of the common law on water rights during this period, discussed below. 11 Reynolds, Chapter 5. 12 See Getzler, p. 252, providing an extensive list of cases involving canal and water companies. 13 See R.A. Epstein, ‘Why Restrain Alienation?’ Columbia Law Review 85 (1985), p. 979 on limiting the common rights to water to riparian landowners and C. M. Rose, ‘Energy and Efficiency in the Realignment of Common-law Water Rights’, Journal of Legal Studies 19 (1990), p. 261 on the historical emergence of property rights in water as a response to competition for increasingly scarce resources. 14 For a classic account of the forms of action, see F. W. Maitland, The Forms of Action at Common Law (1909). 15 Generally see J. H. Baker, An Introduction to English Legal History, 4th ed. (2002) Chapter 4; Scott and Coustalin, p. 844-7; Getzler, pp. 52–5 and pp. 100–6. 16 Source: Bracton Online, Harvard Law School (http://bracton.law.harvard.edu/). References in the text below are to volume and page number. This, and other electronic sources cited below, were accessed on 1 May 2013. 17 S. E. Thorne, ‘Henry de Bracton, 1268–1968’, in Essays in English Legal History (1985), pp. 77–8. 18 S.E. Thorne, ‘The Text of Bracton’s De Legibus Angliae’, ibid, p. 93. 19 Generally on Roman law influences on Bracton’s account of water rights see Lauer, pp. 66–70 and Getzler, pp. 64–85. 20 See Justinian’s Institutes, J.B. Moyle translation (1911) Book 2 Title 1 on different kinds of things. Available at http://www.gutenberg.org/ebooks/5983. 21 See The Enactments of Justinian, The Digest of Pandects, Book XLIII Title 13. Concerning the interdict to prevent anything from being built in a public river or on its bank which might cause the water to flow in a different direction than it did during the preceding summer (S. P. Scott, The Civil Law, IX-X (1932). Available at http://webu2.upmf-grenoble.fr/DroitRomain/Anglica/ D43_Scott.htm#VIII. 22 See Getzler, pp. 88–97. 23 William Aldred’s Case (1610) 77 ER 816 (KB). 24 Ibid., p. 821 per Wray, CJ. 25 81 ER 1208 and 77 ER 806 (CP). 26 Per Whitelocke J, see J. H. Baker, Baker and Milson Sources of English Legal History: Private Law to 1750, 2nd ed., (2010) p. 661. This outcome may be contrasted with Bamford v. Turnley (1860) 122 ER 25 where the court was unwilling to accept public utility as a justification for air pollution. 27 95 ER 557 (KB). 28 Per Earle CJ Backhouse v. Bonomi (1858) 120 E.R. 643 (QB) at p. 651. 29 Sedleigh-Denfield v. O’Callaghan [1940] AC 880 per Lord Wright at 903, quoted by Laws LJ in Arscott v. The Coal Authority [2004] EWCA (Civ) 892 at paragraph 24. 30 79 ER 1263 and 81 ER 280 (KB). See discussion of this in Lauer, pp. 87–9; Scott and Coustalin, pp. 852–3; and Getzler, pp. 129–34.

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31 Luttrel’s Case, Cottel v. Luttrel (1601) 76 ER 1063 (KB) established that a change of mill water use, from fulling to corn grinding, did not destroy a prescriptively established right to water use. See Lauer, pp. 83–4. 32 Sir William Blackstone, Commentaries on the Laws of England (1765–9) Source: Online Library of Liberty, available at http://oll.libertyfund.org/index. php?option5com_staticxt&staticfile5show.php%3Ftitle52140&Itemid527. Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (1893). References given in the text below are to book and page number. 33 J. H. Baker, An Introduction to English Legal History, 4th ed. (2002) p. 191. 34 On Blackstone’s account of water rights see Lauer, pp. 96–9 and Getzler, pp. 153–77. 35 Similarly see Bracton, Br. V2/42, Chapter 1, p.1, on ‘first taking’ as the origin of property rights. 36 Generally see Lauer, pp. 100–1 and Getzler, pp. 204–32. 37 102 ER 1266 (KB) and (1805) 6 East 208. 38 Ibid., p. 219. 39 107 ER 620 (KB) and (1824) 2 Barnewall and Cresswell 910, and see Lauer, pp. 103–4. 40 Ibid., p. 913. 41 Ibid., p. 917. 42 Per Tyndall J in Liggins v Inge (1831) 131 ER 263 (CP) and 7 Bingham 682 at p. 693 citing Bealey v. Shaw as authority for this statement! 43 (1818) 106 ER 95 (KB). 44 110 ER 122 and 110 ER 692 (KB). See discussion of this in Scott and Coustalin, pp. 863–8 and Getzler, pp. 226–32. 45 110 ER 692, pp. 698–9. 46 Bl.V2/14 and 18, and Institutes of Justinian Title 1 section 1 and Digest of Justinian, Book 43 Title 13. 47 110 ER 692, p. 701. 48 155 ER 579 (Ex). See discussion in Scott and Coustalin, pp. 871–9 and Getzler, pp. 282–96. 49 Citing Ashby v. White (2 Ld. Raym. 938) and the judgment of Mr. Justice Story in Webb v. The Portland Manufacturing Company (3 Sumn. Rep. 189). 50 155 ER 579 (Ex), p. 586. 51 J. Kent, Commentaries on American Law, 3rd ed (1840), cited as 3 Kent’s Comm., Lect. 52, pp. 439–45. Similarly see Tyler v. Wilkinson 24 F. Cas. 472 (C.C.D.R.I. 1827) and see Scott and Coustalin, pp. 892–4 and Getzler, pp. 274–6. 52 Referring to R. Pothier, Treatise on the Law of Obligations (1761–4) (W. D. Evans transl) (1806) and J.-B. J. Pailliet, Manuel de Droit Franc¸ais (1838). 53 155 ER 579 (Ex), p. 587. 54 Per Pollock CB in Dickinson v. The Grand Junction Canal Company (1852) (1852) 155 ER 953 (Ex), pp. 960–1. 55 140 ER 242 (CP). 56 Ibid., p. 252. 57 14 ER 861 (PC).

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58 Ibid., p. 870. 59 See Scott and Coustalin, pp. 877–9 on the extent to which judges confined their discretion by defining certain uses as ‘per se unreasonable’. 60 See Getzler, p. 282. 61 Generally see Getzler, pp. 296–315 on groundwater and at pp. 316–20 on ‘appurtenancy’. 62 152 ER 1223 (Ex Ch). 63 152 ER 1223, p. 1235. Contrast Dickinson v. The Grand Junction Canal Company (1852) 155 ER 953 (Ex) where the plaintiff was allowed to recover for a reduced water flow where the defendant sunk a well which intercepted water that would otherwise have flowed into the river and this was treated as a ‘diversion’ of the stream. 64 137 ER 205 (CP). 65 Ibid., p. 224. 66 156 ER 873 (Ex). 67 Ibid., p. 880. Similarly see Broadbent v. Ramsbotham (1856) 156 ER 971. 68 11 ER 140 (HL). 69 Ibid., p. 150. 70 Ibid., p. 155. 71 [1895] AC 587 (HL) and see M. Taggart, Private Property and Abuse of Rights in Victorian England (2002). 72 Ibid., p. 601. 73 Per Lord Cranworth 11 ER 140 (HL), p. 152. 74 159 ER 545 (Ex). 75 Ibid., p. 555. 76 7 HL 697 (HL). 77 Contrast Kensit v. Great Eastern Railway (1884) LR 27 Ch D 122 where water could be abstracted for use by a non-appurtenant sugar-refining factory, provided that there was no material injury to downstream users. On the extraordinary use for railways, see Earl of Sandwich v. Great Northern Railway (1878) 10 Ch D 707. 78 For example, on water abstraction and diversion now see the Water Resources Act 1963 and the Water Act 2003, and on water quality and pollution see the Water Resources Act 1991 and the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675. 79 See Department of Energy and Climate Change policy information on increasing the use of low carbon technologies, available at, https://www.gov.uk/government/ policies/increasing-the-use-of-low-carbon-technologies; press release, Barker calls for water mill renaissance, 28 October 2010, available at https://www.gov.uk/ government/news/barker-calls-for-water-mill-renaissance; and England and Wales Hydropower Resource Assessment (2010) funded by the Department of Energy and Climate Change and Welsh Assembly Government, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/47950/753-england-wales-hydropower-resource-assess.pdf. 80 See information on increasing numbers of hydropower applications made to the Environment Agency available at http://www.environment-agency.gov.uk/ business/topics/water/32022.aspx. 81 See P. Cuckson, ‘Something’s Fishy’, The Spectator, 1 September 2012, for a blunt critique of recent hydropower developments and contrast this with the

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view taken by the British Hydropower Association, http://www.british-hydro. org/index.html. An early indication of the kind of litigation that this conflict of uses gives rise to is provided by The Pride of Derby and Derbyshire Angling Association Limited v. (1) Canal and Rivers Trust and (2) Small Hydro Company Limited, Unreported, Nottingham County Court Case No, ING91775, 22 October 2012, where an angling association was granted an injunction to prevent the installation of a hydropower generating facility that would have interfered with fishing rights.

REFERENCES Baker, J.H., An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002). ———, Baker and Milson Sources of English Legal History: Private Law to 1750, 2nd ed. (Oxford and New York: Oxford University Press, 2010) p. 661. Blackstone, Sir William, Commentaries on the Laws of England (1765–9). Bloch, M., ‘The Advent and Triumph of the Watermill’, in J.E. Anderson (trans.), Land and Work in Mediaeval Europe (London: Routledge and Kegan Paul, 1967), p. 136. Carus-Wilson, E.M., ‘An Industrial Revolution of the Thirteenth Century’ Economic History Review 1 (1941), p. 11. Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes (1893). Cuckson, P., ‘Something’s Fishy’, The Spectator, 1 September 2012. Department of Energy and Climate Change and Welsh Assembly Government, England and Wales Hydropower Resource Assessment (2010), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/47950/753-england-wales-hydropower-resource-assess.pdf. The Enactments of Justinian, the Digest of Pandects, Book XLIII Title 13. Epstein, R.A., ‘Why Restrain Alienation?’ Columbia Law Review 85 (1985), p. 979. Getzler, J., A History of Water Rights at Common Law (Oxford and New York: Oxford University Press, 2004). Harvard Law School, Bracton Online (Harvard Law School, 2003), available at: http://bracton.law.harvard.edu/. Lauer, T.E., ‘The Common Law Background of the Riparian Doctrine’, Missouri Law Review 60 (1963), p. 28. Maitland, F.W., The Forms of Action at Common Law (London: Cambridge University Press, 1909). Moyle J.B. (trans), Justinian’s Institutes (1911) Book 2. Available at http://www. gutenberg.org/ebooks/5983. Musson, A.E., The Growth of British Industry (London: B. T. Batsford, 1978). Pailliet, J.-B.J., Manuel de Droit Franc¸ais (Paris: Le Normant, 1838). Pothier, R., Treatise on the Law of Obligations (1761–4) (W. D. Evans trans) (London: A. Strahan, 1806)

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Scott A. and Coustalin, G., ‘The Evolution of Water Rights’ Natural Resources Journal 25 (1995), p. 821. Scott, S.P., The Civil Law (Cincinnati, OH, 1932), pp. IX-X. Available at http:// webu2.upmf-grenoble.fr/DroitRomain/Anglica/D43_Scott.htm#VIII. Reynolds, T.S., Stronger than A Hundred Men (Baltimore and London: John Hopkins University Press, 1983). Rose, C.M., ‘Energy and Efficiency in the Realignment of Common-law Water Rights’, Journal of Legal Studies 19 (1990), p. 261. Taggart, M., Private Property and Abuse of Rights in Victorian England (Oxford and New York: Oxford University Press, 2002). Thorne, S.E., ‘Henry de Bracton, 1268–1968’, in Essays in English Legal History (London: Hambledon, 1985).

5

History of Water Law in Scandinavia

Ernst Nordtveit INTRODUCTION Scandinavian water law has developed over more than 1,000 years in three different countries – Denmark, Norway and Sweden. During this time, its focus has changed from self-subsistence farming to industrialized and urbanized societies and modern welfare states. The development of Scandinavian water law is closely linked to the ecological conditions in different parts of Scandinavia and to the general economic, historical and legal development in each country. One cannot view Scandinavian water law as a single subject, even though there are similarities in water law and some characteristics that distinguishes it from water law in most other countries. The history of Scandinavian water law is a story of how differences in living conditions influences water law and lead to different legal solutions, but also the development of some common principles and legal institutions for regulating access to and the division of water resources. Scandinavian water law is also of interest in the context of international water law and to the question of sovereignty, as water law in Scandinavian countries is based on the principle of private ownership of watercourses. How the watercourses have been managed by private owners will, it is thought, be of interest in relation to international watercourses. In international relations these problems are defined as a question of sovereignty and jurisdiction, but are in reality a question of the right to distribute rights relating to the watercourses, and in some instances groundwater reservoirs, in a manner that influences the access to water on the territory of another State. Even if other considerations are important in international relations, the principles of dividing water and cooperation in the management of a watercourse are of interest in relation to the management of international watercourses. Scandinavia has a few major ‘border watercourses’ where watercourses cross national borders or form the borders between countries. Bilateral agreements between Scandinavian countries, however, have led to legal solutions for the management of watercourses crossing or forming borders

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based on Scandinavian legal traditions, which may be of interest in an international context. Denmark and Sweden are members of the European Union (EU) and Norway is part of the European Economic Area (EEA). EU law will thus influence current water law throughout Scandinavia and the countries are in the process of implementing the EU directives on water. I will not give a presentation on EU law here, but will concentrate on the historical development of Scandinavian water law. I aim to describe some common trends and areas where Scandinavian countries have chosen different solutions to similar problems; due to limited space, I will not be discussing the laws in each country in detail. THE ROLE OF WATER RESOURCES IN ECONOMIC, POLITICAL AND LEGAL DEVELOPMENT IN SCANDINAVIA Scandinavian countries are closely connected historically, culturally and linguistically. Even though they have individual legal systems, there has been strong mutual influence in legal matters. Many areas of legislation are harmonized among the Scandinavian countries and within the wider group of Nordic countries, which include Finland and Iceland. Water law in each country, and even region, is highly influenced by natural conditions such as precipitation, topography, livelihood, economic and other social and historical factors. The topography in Scandinavia varies greatly, from the mountainous areas in western and northern Norway to the flatland in Skaane in southern Sweden and Denmark. Compared to other parts of the world, Scandinavia has a surplus of water in most regions and there is no water shortage, even though there may be a lack of water in some regions from time to time. There is a great variation in precipitation between the western and northern parts of the Scandinavian Peninsula on one side and the eastern and southern parts on the other side. The functions of the watercourses are different in the steep mountainous areas of western Norway and in the flat, mainly cultivated, land in Denmark. The development of Scandinavian water law is part of the historical and legal development of Scandinavia. The Scandinavian countries were established as separate kingdoms in c.800–1000 AD. From 1397 the three countries were unified under a common king (‘The Kalmar-Union’). Sweden broke away from the union in 1523, but the union between Denmark and Norway continued until 1814, when Norway entered into a union with Sweden after a short period of independence. During the transition process, Norway adopted a constitution with a parliament (Stortinget) as the legislative power. This operated during the union with Sweden. From 1905, the three Scandinavian countries have been independent states. The main principles of Scandinavian water law were developed early. Law in Scandinavia was originally based on customs. Local assemblies

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(thing) where all free men could meet seem to have been established at an early stage. The things decided cases and the law could be changed by the things. By around 900 AD, regional things were established throughout Scandinavia, with three thing areas in Denmark, four in Norway and six in Sweden. Each thing had separate codes (landscape codes) that were recited orally every year by a law-sayer. Around 1100–1200 AD, the codes were codified and the process of unification of the law within each country started: Norway got its first unified code in 1274; Sweden in 1352. In Denmark new research suggests that from 1241 Jyske Lov was intended to be a code for the whole country, but to what extent this took place is disputed. From the fourteenth century onwards, the old system with things vanished and the central power of the kings was strengthened throughout Scandinavia. An absolute monarchy was established in Denmark–Norway from 1660 and from 1682 in Sweden, and this lasted until the early nineteenth century. During the nineteenth century, the Scandinavian countries developed as democratic constitutional monarchies. OWNERSHIP OF WATER AND WATERCOURSES A characteristic element of Scandinavian water law is that it is built on the principle of private ownership of watercourses, while the dominant system in continental law and in common law is state or public ownership, at least for major watercourses and groundwater. The principle of private ownership influences the legal regulation of water resources and watercourses and has led to the development of legal solutions to safeguard public interests and the interests of all watercourse owners. The owner’s right to dispose of a watercourse or groundwater resource is influenced by the specific considerations that are related to these resources. A watercourse is an ecosystem and hydrological system. Undertakings in one part of the watercourse will often influence other parts of the watercourse, and in some cases the whole watercourse. Watercourses and groundwater resources are important as bases for the development of society, and the possibility of utilizing watercourses in different ways is also important for the people in the area. Different legal instruments have been used to balance the public and private interests. Although all Scandinavian countries base their water law on the principle of private ownership, there are major differences in how ownership is designed and regulated in the three countries. The ownership model is a good example of a tailor-made model for a specific kind of natural resource, and is interesting in relation to the contemporary debate on property rights and the governance of natural resources. Given the scope of this chapter, I have chosen to present this model as it has developed historically. I will provide some reflections and analysis in relation to modern discussions relating to property rights at the end of the chapter.

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DEVELOPMENT OF PRIVATE OWNERSHIP OF WATERCOURSES IN MEDIEVAL LAW The principle of private ownership of watercourses was established in the medieval landscape codes and is probably based on earlier customary law. In the Norwegian Frostathing Code Section XIII it is said that the landowner also owns the fisheries adjacent to his land. This probably applied to the sea as well as watercourses on land (see Robberstad 1978: 185). Not all landscape codes stated in clear wording that the landowner also owned the watercourse or other surface water, but there is no doubt that the legal regulation of water resources, rivers and lakes in the landscape codes in Norway were based on private ownership or exclusive right of the landowner to dispose of water on his land (Motzfeldt 1908, Robberstad 1978: 185 & Rogstad 2002: 141–2). In Land Code 1274, which was based on the landscape codes, it was expressly stated that the landowner ‘owns the water and fishing or hunting place adjacent to his shore’ (Chapter 48). The farmers in Norway were owners of their own land to a greater extent than individuals in Europe. Even though tenant farmers made up the majority of individuals, the position of the tenant farmer was far stronger than in continental Europe, as the tenants were never attached to the soil but could move freely. Nearly all Norwegian farmers regained ownership of their land between the end of the seventeenth century and the end of the eighteenth century. In Swedish law the principle of the private ownership of watercourses was clearly established in medieval law (SOU 1977: 125–8 & Bengtsson 2010: 210). Most Swedish landscape codes have regulations limiting the owner’s rights on free waterways, where one third of the watercourse or a certain width remains open. This was originally for the free movement of fish, but later also for the benefit of sailing. This limitation did not make this waterway the property of the Crown (see Hafstro ¨ m 1970: 201–4). In a document from 1282 it was stated that the greater watercourses should belong to the Crown. This document was forgotten about but reappeared in the seventeenth century and led to much discussion. In 1869 it was definitely concluded that it was a forgery. In 1900 the Supreme Court finally rejected the state’s claim of the ownership of some watercourses (see Hafstro ¨m 1970: 206–8). In Denmark the situation seems to have been a bit less clear. In the code for Skaane (which at the time was Danish) (Skaanske Lov, Section 211) it is said that all water not secured by a dam was common water and people were free to fish in it, irrespective of who owned the ground. Fishing in a mill pond without permission, however, was still forbidden. Jydske law does cover the question of ownership, but the right to establish a mill was regulated in Section 57. A man could not build a mill unless he owned the dam and the ground for the dam, and then not in a manner that caused cultivated land belonging to others to flood. Milling was the most valuable use of the water and therefore it might have been

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seen as unnecessary to regulate other issues. In Denmark one of the most important concerns was to avoid damaging cultivated land due to changes in topography; it was probably not of great importance to regulate the ownership of watercourses. It is a general feature of the Scandinavian medieval landscape codes that the regulation was casuistic and regulated practical conflicts. It was not necessary to regulate the obvious. The Swedish landscape codes also had detailed regulation of the right to establish mills (see Hafstro ¨ m 1970: 204–6). The interesting aspect of landscape codes is not the stipulation of private ownership of watercourses in itself, but the advanced regulation of the owner’s disposal of his part of the watercourse. The special circumstances related to watercourses led to limitation of the owner’s right to dispose of the water or other resources from the watercourses from the earliest legislation. The owner, for example, did not have the freedom to block a stream or divert water from its natural course. Section 85 of the Gulathing Code (which applied in western Norway) is an example of detailed regulation relating to the landowner’s right to dispose of a watercourse crossing his land and other properties: All streams shall run where they ran of old. Let no one lead water off or upon another man’s land, if it does not break out of its channel; but if one does change the channel he shall restore it and shall owe a fine for trespass. If a stream runs between farms and there are fish in it, each farmer shall control the half out to the mid-channel, if they have the land on the two sides. If a stream wears a new channel through the land of either one, the one who had the land before this channel was formed shall have [the stream] while the other shall have the shoal or the bank where the [mid-channel] was when it ran right. No one shall damage another man’s fishing place or forbid him to use it if it has belonged to him formerly. When men have a salmon stream in common, each one shall set his fishing gear in his [part of the] stream, but in such a way that the fish are able to travel into every part of the stream. The gifts of God shall be allowed to travel to the mountain as well as to the shore, if they desire to go. But if a man bars the stream, those who own land higher up shall give him a five-day warning from the thing to remove the bars if they are set up contrary to law. If he refuses to take them out, let them request a force to go to tear them out, and every freeman who refuses to join in shall owe a fine of three oras, and the fishing gear [shall belong] to those who live longer up the stream. No one shall go to fish in another man’s stream; if he does, he fishes for [the benefit of] him who owns the stream; and he shall pay the fine for trespass to the owner of the stream. (translation: Larson 1935: 96–7)

This section protected the right of all owners along the stream or watercourse to enjoy its benefits as they had from old, within certain limits. It protects the natural conditions that all owners had adapted to and the expectation that they could benefit from the river’s other resources. It is possible that this expressed a more general rule that the owner of one part

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of a watercourse could not interfere with the natural, established situation in a way that substantially interfered with another owner’s rightful expectation to be able to enjoy the values brought by the watercourse. It is still hard to say how far reaching this was in practice. The regulation of the right to catch salmon is of special interest. Salmon (and sea-trout) breeds in freshwater but lives in saltwater. The ownership of a part of a watercourse gave the owner a right to exploit the fishing opportunity that was created by the natural migration of salmon from the sea to the river to breed. This migration, or right to wander, was protected by rules preventing the stream from being totally blocked. A similar regulation is also found in modern legislation in order to protect the fish stock and the prospect of catching salmon in parts of the river where salmon naturally wander. The overall impression of this regulation is that each landowner could exploit the resources of the watercourse in a manner that might be harmful to the other owners of the watercourse but within limits that would protect other owners’ opportunities to utilize the benefits that the watercourse naturally provided. This regulation was related to people’s livelihoods in Norway. The farms were usually small and the climate made the harvest insecure. Only 3 per cent of Norwegian land was cultivated and in many areas this percentage was far lower. Access to the fish in rivers and lakes was crucial for survival, especially in years where the harvest failed due to cold weather. Protection of the possibility to fish in the river was therefore of great importance. People had settled and taken farms based upon the available resources; it was unthinkable that other owners might have the legal right to prevent salmon traversing the waterway or divert water away from the stream. The rules protected the owners of watercourses against substantial changes in the natural situation. The principle in the Gulathing Code seems to be that the object of the owner’s right is the natural, unaltered watercourse. The owner could exploit the watercourse and the resources in it, but not by measures that substantially changed it. This can be seen as a limitation of property rights, but it also protects the owner’s right to exploit the watercourse from interference by other owners. DEVELOPMENT OF THE CONCEPT OF OWNERSHIP OF WATERCOURSES IN MODERN LEGISLATION Scandinavia’s water legislation did not develop much until the nineteenth century. In Norway the regulation of water rights in the 1274 Gulathing Code (Chapter 48) were adopted almost word-for-word in the Norwegian Land Code. The Norwegian Land Code was applied for more than 300 years until Christian VI’s Norwegian Code in 1687, but the water regulations in this code were generally similar to the land code (see Articles 5-11-5, 7, 8,

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9 and 10). These provisions applied for exactly 200 years, until the 1887 Watercourse Act. Christian V’s Danish Code of 1643 incorporated Jyske Lov regulations on water law. In Sweden, the regulation of watercourses was integrated in the Civil Code from 1734, much as it had been in the landscape codes. The development of water law has happened in response to technological and economic changes. Towards the end of the fifteenth century, for example, new regulations were enacted in Norway and Sweden in order to regulate the use of watercourses for the river-driving of logs and as a powersource for saw-mills. From 1700 to 1850, the landowner’s obligation to maintain the watercourses in order to drain the water from cultivated land was strengthened in Denmark and Sweden as part of agricultural development. The Swedish 1734 code, in addition to the old codes, also contained provisions on the regulation of watercourses relating to the building of dams and other issues. Development of the right to water-drive logs The first major change came in response to economic development and water use relating to new activities in Norway and Sweden from around 1400. Export of lumber to Britain and the Netherlands became an important business. Sweden also developed mining activity that required a large quantity of lumber. The timber was transported by river to the sea. From the sixteenth century water power was used to run saw mills to produce lumber products. River driving of logs is mentioned as early as the Norwegian Land Code of 1274, Section VII, 47, but from the sixteenth century onwards it developed further. River driving was the main method of lumber transportation until the late twentieth century, when other forms of transport became more cost efficient. The historical development is presented in Vislie, 1955: 105–9. The development of the right to river-drive logs is complicated and to some extent unclear; several legal techniques were used. In smaller watercourses with relatively few stakeholders, the owners made agreements on the organization of river driving. In long watercourses that cross perhaps 100s of properties, the transaction costs made it impossible to regulate river driving with contracts; government intervention was considered necessary in order to organize or help organize the transport of timber. River driving in larger rivers was often organized by the buyers, in cooperation with the sellers. The king granted privileges enabling some cities to carry out river driving on some rivers. In a number of rivers various undertakings were put in place to make the watercourse suitable for lumber driving and the owners got an exclusive right to this activity on the basis of such undertakings. Exclusive rights were granted in order to protect investments. This made it possible for others to pay for the right to transport timber using the watercourse.

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Early on, the legislation was built on the understanding that lumber driving was free in watercourses that were naturally suited for such activity (see the Norwegian Land Code 1274, Chapter 47). General provisions on the right to river driving were incorporated in the Norwegian acts on watercourses between 1887 and 1940, and the Swedish Act on Water extensively regulated plants for river driving. The state also used its influence under the absolute monarchy to organize river driving and saw mills by granting special rights to cities. The right to river-drive logs is the first example of a common right to the use of property belonging to others to be enacted, but this does not mean it was the first right of this kind. The owners of rivers suitable for the river driving had to accept that the river was used for this purpose without compensation. The landowner, however, could claim compensation for damage or land taken to establish infrastructure. Even though lumber driving in watercourses is no longer practiced, a provision on this right was included in the Norwegian Act on Watercourses 2000, Section 16, in order to allow this form of transportation if it again becomes practical. ELECTRICITY AND INDUSTRIALIZATION: THE DEVELOPMENT OF MODERN LEGISLATION The use of watercourses for the production of energy and as a basis for industrialization from the end of the nineteenth century and the general urbanization and industrialization of the twentieth century led to a far more fundamental rethinking and development of water law in Norway and Sweden. The increased economic value of the watercourses and the increased demand for water due to growing cities and industrial sites and the modernization of agriculture made it necessary to develop more detailed regulation on the utilization of watercourses. Legislation was also introduced on the right to acquire waterfalls in order to prevent foreign investors from becoming dominant owners of watercourses, especially in Norway (see the section on concession rules below.) New legislation was enacted in both these countries at the end of the nineteenth century or early twentieth century. Rapid industrial and economic development during the twentieth century, and especially the environmental problems and the growing awareness of the need to protect biodiversity and ecosystems towards the end of the twentieth century, led to several revisions of the legislation in all Scandinavian countries. In Norway the first extensive act on watercourses was enacted in 1887 (the Watercourse Act 1887). This was repealed by the Watercourse Act 1940, which with exceptions of some sections on the borders between properties in watercourses, was repealed in 2000 by the Act on Water Resources (the Water-resource Act 2000). In addition to the general regulation of watercourses, new legislation was developed to regulate the acquisition of waterfalls and hydro-electric plants and the regulation of

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watercourses (Industrial Concession Act 1917 and Watercourse Regulation Act 1917). Denmark did not have the same need for the legal regulation of watercourses. An act on watercourses was first enacted in 1963 and was repealed by a new act in 1983 (the Watercourse Act 1983) and an act on water supply was enacted in 1978 (the Water Supply Act 1978). These two acts form the central Danish legislation on water. Private and public ownership was a central part of the discussion in the modernization of Scandinavian water legislation; it seems to have been most intense in Norway. The principle of private ownership was upheld. The Watercourse Act, Section 1 stated that the landowner also owns the water on his land. The same rule was included in the Watercourse Act 1940 and the Water Resource Act 2000, Section 13 (see also NOU 1994: 120 & Brekken et al. 2000: 81–3). An important argument in 1887 was that private ownership was the established legal situation and changing the rule would be seen as interfering with established property rights. The 1918, 1983 and 1998 Swedish water acts do not use the term ownership, but state that the landowner has the right to dispose of water on his or her property (see the Water Activity Act 1998 Section 2:2, see Stro ¨mberg 1984: 30–7). A broad discussion of the right to water is found in the expert report relating to the preparation of the Watercourse Act 1983 (SOU 1977: 125–32). The right to dispose of the water as stated in the Act must be seen as a property right or ownership right to water. The Danish Act on Water-supply (Act no. 935, 2009) seems to build on the principle of the landowner’s ownership of surface water. The landowner has the right to cut reeds and insert pipes in watercourses, to hunt, fish and limit traffic in the watercourse. The owner has the right to take water for his household without permission, but for greater outtake permission is needed. The Danish Watercourse Act, Chapter 4, has provision on the classification of watercourses as either private or public. This distinction has consequences for public planning, but not for ownership as such. REGULATIONS AND LIMITATIONS OF THE OWNER’S RIGHT TO THE UTILIZATION OF WATERCOURSES Even though the principle of private ownership was upheld in modern legislation on watercourses, the limitations of the owner’s right to dispose of the watercourse were developed. The owner’s right of disposal is not the same in modern legislation as in earlier legislation. The medieval legislation had specific or casuistic rules regulating the owner’s disposal of a watercourse. Such casuistic-formulated regulations are to a great extent replaced by more general regulations in modern legislation. By establishing a duty of care to avoid damage or nuisance to other properties, one can avoid giving specific rules. The Norwegian Act on Watercourses 1887, Sections 1–14, had detailed regulation on the owner’s right to dispose of watercourses, much like the older rules. The Act on Watercourses 1940,

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Section 8, introduced a new legislative technique by introducing a general ban on changing a watercourse or carrying out undertakings or measures linked to the watercourse if these would lead to damage or create a risk of damage to private rights or public interest. In the Norwegian Water Resource Act 2000, Section 5, the general clause is formulated even more generally: – Anyone shall act with care to avoid damage or nuisance in the watercourse for public or private interests. – Measures in a watercourse shall be planned and carried out in order to be of as small damage and nuisance for public and private interests as possible. This obligation applies as far as it can be fulfilled without unreasonable costs or problems. [...] Measures in watercourses shall fulfill all demands that reasonable can be made in order to prevent danger for humans, environment of property. This kind of ‘general clause’ covers all kinds of act or undertakings. There is only a problem if a measure or undertaking leads to unnecessary damage for other owners of the watercourse or is not in the public interests, for example inhibiting travel on the watercourse. The general clause is useful as it can be adapted to the different conditions around the country. The clause covers several measures that were previously regulated by specific rules, like diverting water from the watercourse, drawing water away from another person’s property or building dams that will increase or reduce the water level in a lake. The Danish legislation aims to integrate or coordinate the planning of watercourse use via general land and natural resources use planning, and will therefore ensure balanced development where all interests are taken into consideration. The Swedish Environmental Act, (Miljo ¨ skyddslag (1969: 387)) Section 11:7, has a similar provision as the Norwegian Act preventing measures that will interfere with important water supply when in the public or individual interest. The general clause will apply for all forms of use or influence of the watercourse, and one could argue that no other regulation is necessary. It covers the right to extract water from a river or to alter a watercourse by dam building or dredging. Despite this, more specific regulation of these kinds of actions has still been considered useful because such regulation is practical and often has implications for other owners along the watercourse, and in many cases there is a wider public interest. Returning to the Gulathing Code, Section 85, it is very clear that rivers cannot be diverted from their natural course in order to remove the course from or to lead it into another person’s property. A similar rule is found in the Danish Jyske Lov, Section 57:15. It seems clear that it allows water to be taken for household and agricultural use on the property, even if this leads to a shortage for owners further downstream. The Norwegian Watercourses Act

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1940, Section 14, granted the owner the right to divert water needed for ‘household, agriculture, irrigation and technical use on the property, even if it causes damage that the water is diverted from the watercourse’. In cases where the water supply was insufficient, each owner had the same right proportional to his needs. The consequences of this could, of course, be a shortage of water during dry periods. As the irrigation of agricultural land became more common practice towards the end of the twentieth century, this developed into a real problem in some areas. In the Norwegian Act on Water Resources 2000, the landowner’s right to take water from a watercourse is limited to what is needed for the household and for domestic animals. However, owners are not allowed to take a large amount of water that would result in the water level sinking below the average minimum in the watercourse. If there is a shortage of water, the water shall be divided proportionally between the owners of the watercourse in relation to their needs. If the supply cannot sustain these needs, household needs shall be covered well before the domestic animals needs. The decision on how to divide the available water is made by the watercourse authority. This change was mainly a reaction to the increase in water use for irrigation in some areas leading to shortage of water. EXCEPTIONS TO THE PRINCIPLE OF PRIVATE OWNERSHIP OF WATERCOURSES In Sweden as well as in Norway, some large lakes are not subjected to full private ownership and some area in the middle is free for everybody to fish. This area is thus not under private ownership of the adjacent landowners (Robberstad op. cit. p. 185). In Norway many such cases occurred between 1905 and 1970, partly because of the work that was done in settling the borders between state-owned and private property. The decisions are based on the assumption that this was the legal situation from olden times, and some earlier decisions do exist. The decision on whether a lake has a free area is made on the basis of local custom and practice, and the size of the lake is only one of several criteria. The Water Resource Act 2000, Section 17, says that the state shall have the right to areas that are not under private ownership, but that private persons shall have the rights that follow from acts or other legal basis in that area. State ownership of an area in the middle of large lakes implies that the state also has a right to a share in the water equal to its property right and to other potential forms for utilization of the lake, for example to store water for energy production. Watercourses might also, due to special legal basis, be co-owned with the landowners who have borders on the watercourse or co-ownership can be divided between the surrounding properties, even if the land around it consists of individual properties. If the land is in co-ownership or is common land, the same will apply to the watercourse.

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UTILIZATION COVERED BY THE OWNERSHIP RIGHT The ownership of watercourses does not only give rights relating to the use of water for household and irrigation. Watercourses often contain several resources with a number of possible utilizations. The usual definition of ownership is that it gives the owner an exclusive right to exploitation of the object. The owner of a watercourse will not have exclusive use of all forms of utilization in Scandinavian countries. The development of the right to water-driving logs has been presented above. The regulation of fishing and hunting in watercourses is now separate from water law in all Scandinavian countries, but the main rule is still that the owner has exclusive hunting and fishing rights. The most economically valuable utilization of watercourses is energy production where waterfalls can be exploited. The potential for energy production that is created by the combination of precipitation and topography belongs to the owner of the watercourse as ‘the right to the (water)fall’. The right to the waterfall is called fallrett or fallra ¨tt in Norwegian/Danish or Swedish, respectively. For centuries this has been used for running mills and saw-mills and has been seen as a right for owners of the watercourses. The development of electricity as a power source in households and industry in the late nineteenth century made it possible to utilize the energy potential in waterfalls in a new way and waterfalls suddenly became very valuable. The electricity and industry related to the development of hydropower led to the rapid industrialization of Norway from the late nineteenth century. In Sweden hydropower was also important for industrial development, even though the industrial base was broader than in Norway. Today Norway and Sweden both have a high hydropower production, ranking number five and ten in the World, respectively. Hydropower plays a small role in Denmark as a result of the topography. There was never any discussion whereby the energy potential of the natural waterfalls belonged to the owner. The fact that new technology made it possible to increase the energy production from a watercourse by its ‘regulation’ caused a discussion on the limits of private ownership. By constructing dams it was possible to store water in times of high precipitation or snow melt in order to use it for electricity production in dry seasons. Using pipelines and tunnels, one could collect water from several watercourses and exploit the water resources in an optimal manner to increase energy production in comparison to the energy that could be produced from the natural flow of the water. In Norway it was much discussed whether the added energy that was achieved by regulation of the watercourse was included in the owner’s right or if whether belonged to the state. An act from 1911 seems to have been based on the view that the ‘regulation right’ belongs to the landowner, but after a change of government in 1912 a new one was enacted based on the view that the possibility to regulate and manipulate the waterfall was a new form of exploitation of the watercourse. It was therefore decided that

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the state owned the right to the regulation as it was outside the landowner’s traditional utilization of the watercourse (see Ot. prp. 1915: 3–4, Amundsen 1928: 22–4, Rogstad 2002: 145–6). The discussion on ‘ownership’ of the right to regulate watercourses at the start of the twentieth century has to be considered in relation to the discussion on how far the legislator could regulate the position of the watercourse owner. Some politicians meant to strengthen the State’s governance of water resources by making the State the owner. After a Supreme Court decision in 1918 (Norsk Retstidende 1918 II: 48) on the right of the State to grant concession for regulation of a watercourse, this was no longer an issue. It was made a condition for the concession that the State could take over the plant and the right to the water without compensation after 60 years. A condition like this can be given by statute, irrespective of ownership (Robberstad, Tingsrettssoga s. 185). In the 1970s, following decisions relating to the protection of watercourses against regulation, the question became whether a landowner could claim compensation if a ban was placed on the development of his watercourse for energy production (see Lund 1973: 216–27, Rogstad 1974: 266–74, Rogstad 2002: 146 & Fleischer 1985: 255–6). Many watercourses – or at least the right to produce energy from them (the right to the fall) – were bought by national and foreign investors when they became valuable for energy production. The Norwegian authorities reacted to this development by producing legislation aiming to control the sale of rights to several natural resources, among them the rights to waterfalls. The Norwegian Industrial Concession Act (Act 14 December 1917 no. 16), Section 1 states that nobody can acquire waterfalls capable of producing greater than 4,000 natural horsepower without permission from the state. In 2008 this Act, Section 1, was amended and now states that: ‘The water power resources in the country belongs to and shall be managed for the benefit of the public. This shall be achieved by public ownership on state, regional and county level.’ Taken literally, this could mean that the ownership of waterfalls was transferred to the public, but this was not the intention. The regulation does not affect the private ownership of watercourses and waterfalls, but regulates the question of who can own hydroelectric plants and who can get concessions. It follows from Section 2 that only public bodies or publiclyowned or -controlled companies can be granted concession for the purchase of waterfalls. The effect of this is that only publicly-owned or -controlled bodies can own waterfalls that are used for electricity production, but waterfalls and watercourses that are not developed remain owned by the landowner. A relatively new activity demanding huge amounts of freshwater is the creation of plants for hatchery-produced fish stock in the aquaculture industry, especially in Norway. Watercourses are also playing an increasingly important role in recreational activities, like fishing, sailing, rafting, etc., which is an important basis for tourism. The general rule will be that these new forms of utilization will belong to the owner.

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RIGHTS OF THE PUBLIC TO UTILIZE WATERCOURSES In Scandinavian countries, certain rights of the public to use range land, and to some extent even cultivated land, are based on old customs and have been strengthened by modern legislation. This means that everybody has the right to make certain use of property owned by others, for example the freedom to roam (allemannsrett directly translated means ‘all men’s right’). The right of the public to certain use of watercourses is based on custom but is now regulated by statute. Everybody is free to take water from watercourses when it is not taken by a pipeline or other fixed installation. People are free to drink water from rivers and lakes and also to take water in a bucket or similar from a river or lake in areas where the public is free to roam, even if the water is used for household purposes. This public right is essential in securing everybody’s access to water for drinking or household use, even if water is now piped to most people. In order to establish a fixed water supply, it is necessary to have an individual right to take water from property owned by someone else. Everybody is free to swim in rivers or lakes unless special restriction exists, for example in lakes used for drinking water. The public is also free to travel by boats without engines on rivers or lakes or to roam by foot, ski or travel by horse on ice-covered rivers or lakes. This includes the right to free travel by engine-driven vehicles within the limits of the general legislation on the limitation of such travel on range land. In Denmark the right to sail on watercourses is regulated in the Watercourse Act, Section 4. The right to travel only applies on rivers where there is more than one owner of the river’s shores. The owner is obliged to respect public right of use or utilization of the watercourse on his property. Anyone exercising his or her public right has to act with care to avoid damage or nuisance; the owner, however, cannot establish installations that create unnecessary obstacles to public rights. BORDERLINES IN RIVERS OR LAKES Often rivers or lakes form the border or dividing line between properties on each side of a watercourse. Since the property on each side stretches under or into the river or lake, it is necessary to decide exactly where in the river or lake the borderline is. The regulation of this has shifted over time and different solutions have been found. The early Norwegian rule was that the border passed down the middle of the stream, which is not necessarily in the middle of the river. The current rule is that the borderline between the properties on each side of the river follows the deepest channel (see Watercourse Act 1940, Section 2. Section 3 states the same rule for lakes).

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In Sweden the rule for the division of waterpower was that each side had half the power, no matter where the borderline was in the river. OWNERSHIP OF GROUNDWATER The exploitation of groundwater varies from one Scandinavian country to another. Groundwater is the water source for practically all households in Denmark and for nearly half of households in Sweden. In Norway, however, only 13 per cent of households get their water supply from groundwater. The use of groundwater is rising in Norway and Sweden as the pressures on surface resources are increasing due to higher water consumption and the pollution of water sources. The reason for the extensive use of groundwater in Denmark is the lack of good quality surface water. The Danish Act on Water-supply 2009 establishes a system for planning the use of water resources. The landowner has the right to compensation for the use of his property and for the loss of surface water if a water supply plant is built on his land, but he will not be compensated for the groundwater that is extracted. In some situations a landowner still has the right to extract groundwater for household use without a permit in areas where no public water plant is established. The Watercourse Act, Section 3, grants the owner the right to lower the level of groundwater on his property to the depth that is necessary for agricultural purposes and to drain water from his property through watercourses adjacent to his property. The basic principle seems to be private ownership, but strong regulation of the exploitation of groundwater leaves little room for private disposal of the groundwater. Norway did not have any legal regulation of the right to or utilization of groundwater prior to the Water Resource Act 2000. The question of ownership of groundwater resources was disputed in the few years before the new act. The majority in the commission that drafted the Water Resource Act proposed that groundwater should be owned by the State (NOU 1994: 278–80), while the Civil Code Committee (NOU 1988) had earlier proposed that groundwater should belong to the landowner. A 1997 Supreme Court decision accepted that a landowner could drill for groundwater under a neighbour’s property. The Water Resource Act 2000, Section 44, states that a landowner also owns the groundwater under his property. He will still need a permit for abstraction of groundwater beyond the needs of his household and domestic animals (Section 45). In Sweden the regulation of the landowner’s right to groundwater is found in the Water Act 1983 and Section 2.1 of the current act is the same as for surface water, which gives the landowner the right to the water. Danish legislation does not expressly say whether or not groundwater belongs to the landowner. Exploitation of groundwater requires a permit, but the underlying

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assumption seems to be that the landowner can use groundwater that is not needed for public water supply. PUBLIC GOVERNANCE AND CONTROL OF WATER RESOURCES The private ownership of watercourses in Scandinavian countries leaves the public authorities less room to influence the management of water resources than there would be with public ownership. Governance of the water resources must be based on the usual legal and economic instruments as used for other privately-owned natural resources, legislation and economic incentives. Scandinavian countries have a mixed economy, combining private ownership and markets with a public regulation of the utilization of natural resources and other activities in the interest of society or the public in order to achieve policy goals. Population growth, industrialization, urbanization and environmental considerations have strengthened the public interest securing water supply for households, agriculture and industry, protecting ecosystems and biodiversity, and making sure that the water resources are utilized in an effective and sustainable manner. The most important instruments for the public governance of water resources are concession rules, expropriation, and the obligations of watercourse owners to carry out certain undertakings or to cover some of the costs of undertakings that would also be to the owner’s benefit. The general system for land use planning also gives a strong basis for public governance of the exploitation of watercourses and groundwater. Special plans for water use are often included in land use plans in counties where this is of importance. CONCESSION SYSTEMS A concession is a public permit or public acceptance of certain undertakings or legal transactions that are prohibited for those who do not have a concession. A prohibition in combination with the option to apply for an exception in the form of a concession gives the public authorities control in individual cases. Scandinavian countries were early in introducing their system of pre-acceptance from the public authorities as a condition for undertakings in watercourses that could influence public or private interests. Norway introduced some regulation on the right to acquire real property in Norway in the Acts on Citizenship in 1888. The concession rules were moved to a special act on concession in 1903, and after the dissolution of the union with Sweden, a special act on concession as a condition for the right to acquire rights to watercourses was enacted in 1906 – first for foreigners and later also for Norwegian persons or companies. The concession system was then developed with the aim of securing national

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control of waterfall resources and avoiding foreign dominance. This ended with the Industrial Concession Act 1917, which has also been amended and changed several times. The EEA agreement in 1992 made it necessary to enact the same rules for all applicants from EEA countries. The 1907 concession for undertakings the owner plans to carry out on his own property was originally included in the Watercourse Act 1887. The Act on the Regulation of Watercourses 1917 contains the rules relating to the concession for the regulation of watercourses with a production capacity exceeding 20,000 natural horsepower (Section 45). The level at which undertakings in watercourses need concession was lowered considerably in the Water Resource Act 2000. From 2000, the disposal of groundwater for purposes other than household and agricultural use has been dependent on concession in Norwegian law. Building dams or lowering water levels are typical measures that will require a concession. Diversion of water into another watercourse will need a concession if it leads to a substantial increase in the flow of water. In the Water Act 1918, Sweden introduced concession for water activity. These regulations are now partly incorporated in the Environmental Act, Chapter 11. All watercourse undertakings defined in the Environmental Act, Section 11.2 require a concession (see Section 11.9). In Norway the concession is granted by the water authority, which is the Norwegian Water Resources and Energy Directorate (see the homepage of the Norwegian Water Authority: http://www.nve.no/en/). In Sweden the decisions are made by a special court, Miljo ¨ domstolen (the Environmental Court), which has taken over the authority from the earlier Vattendomstolen (the Water Court). The concession systems give the public authorities control over undertakings in the watercourses and the possibility to evaluate these in relation to public interest and environmental considerations. The concession rules thus limit the owner’s right of disposal relating to watercourses and groundwater, but if concession is given it is still the owner or someone he has transferred his right to who will have the right to carry out the undertaking. EXPROPRIATION When a watercourse or a groundwater reservoir is needed for public purposes, and no agreement with the owner can be reached, it might be necessary for the public authorities to acquire rights by expropriation. This might be required to support public need, for example for drinking water, industrial development or other purposes of public interest. Expropriation can also be used for the benefit of private parties if they need water resources for purposes that fall under the legislation relating to expropriation. Legislation on right to expropriation for several purposes was enacted in the first part of the nineteenth century. Expropriation of rights relating to

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watercourses to make rivers suitable for river-driving logs and other purposes was enacted in Norwegian law in the first part of the nineteenth century. The possible reasons for expropriation were extended in later legislation, and extensive court practice on the evaluation of waterfalls and watercourses has since developed. COMMON UNDERTAKINGS IN WATERCOURSES An undertaking in a watercourse might create nuisance or damage to another property but it might also create benefits for other properties. The question of whether the properties that get this benefit must contribute towards the costs occurs when an undertaking has to be made on land owned by several or even all properties along a watercourse in order to utilize the resources in the best possible manner. The most common reasons for joint undertakings have been installations to water-drive logs (e.g., dams, timber booms), supply water, dry out wetland and protect against flooding. Joint installations for irrigation are also used in some cases to obtain proportional sharing of the water. Joint undertakings can be based on contracts between the participants, but this is not always the case. All Scandinavian countries have enacted regulation that in some cases gives a legal basis to imply all owners are obliged to participate in joint undertakings. In Denmark the obligation for landowners adjacent to the watercourse to contribute towards the maintenance of watercourses to secure drainage of the land was established in the seventeenth century. In the Act on Diversion and Utilization of Water 28 May 1880, Section 23, it is referred to the older regulation and custom of sharing costs. In Sweden, the Water Act contains regulation on joint undertakings and distribution of the costs of such undertakings mainly based on the benefit each owner will get from the undertaking. An owner can also claim to use, and if necessary modify, water installations owned by others for his own purposes if there is no substantial damage to other owners and he pays compensation. The decision on this can be taken by the regional authorities. The legislation on river-driving of logs in Norway in the seventeenth century contained provisions that required owners who benefitted to contribute proportionally towards the required investments in the undertaking. It is of interest that this development occurred at the same time in Denmark and Norway. The king has most likely transferred the model from one country to another. The Norwegian Watercourse Act 1940 had some provisions on the obligation of owners to contribute towards measures if they would benefit from them (Section 26, nos. 1 and 31). For measures against flood and erosion, obligatory contribution could be decided (Section 103). The Water Resource Act 2000, Sections 30 and 31, now regulates common undertakings. Section 31 makes it obligatory to design installations for

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water supply and the draining of land so that it can be of use for other landowners. Section 31 states that all owners who benefit from an undertaking related to a watercourse or for utilization of groundwater shall be considered a participant in the undertaking and bear part of the costs. No participant must be required to pay so much of the costs that he would have been better off if the undertaking had not taken place. Since 1859 Norway has had special land distribution courts that are able to redistribute land and land rights between properties in order to create a more suitable property structure (Act on the Stipulation and Change of Ownership and Rights on Real Property, etc., 21 June 2013, which repeals earlier legislation). Sections 3-9 and 3-10 in the 2013 Act enable the court to ensure the parties have a duty to carry out joint undertakings and joint investments related to the properties. This includes joint undertakings in relation to watercourses and groundwater, for example joint water supply, joint irrigation or joint protection against erosion or flooding. In addition, the court can impose an obligation to establish a partnership to run an activity. If the activity involves economic risk, the joint activity has to be organized in a corporation. The partnership will decide by majority vote whether it want to carry out this activity; and each owner can decide whether he or she wants to join. Owners who are not participating still have to accept that their property is used for the joint undertaking but will receive compensation for this. GENERAL COMMENTS ON THE WATER OWNERSHIP MODEL IN SCANDINAVIA Water law in Scandinavia is an example of social organization of the right to and utilization of water and watercourses based on a system with private ownership limited by specific rules and relatively wide-ranging rights also for individuals other than the owner to make use of watercourses. Given the state’s and the general public’s interests in water resources, the choice of a system based on private ownership is not obvious. The water could have been a ‘common pool’ resource managed by people in different local communities or regions as ‘common’ or in state ownership, where the state would distribute the water resources. Commons as an institutional form of access to range land and common pool resources are well known in Scandinavia and huge areas of range land and high mountain areas in Norway and Sweden that were not considered private property are organized in commons for farmers and people in the region and regulated by special legislation. Governance of ‘common pool resources’ has attracted a great deal of interest in recent decades in the design of resource management institutions (see Ostrom et al. (eds), 2002). State ownership of water resources has not been established in Scandinavia. The feudal system was never fully implemented in the way it

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happened in continental Europe and the United Kingdom. There are also practical reasons that it would be difficult for the state to enforce ownership and manage watercourses in an effective manner. Ownership of watercourses is different from ownership of most other assets and it raises interesting and difficult questions related to the general discussion of the concept of ownership, which cannot be discussed in depth here. Several authors have pointed out that the owner cannot own the water molecules, as they are constantly changing but this is beside the point, as the molecules are totally identical. There are no ‘logical’ reasons that the landowner cannot own the water as it passes though his property, but the practical or functional view would be that the object of the ownership is the stream of water and the watercourse as a system. The issue is whether the limitation of the owner’s right of disposal and the rather far-reaching rights of others to utilize watercourses is an argument for not seeing the landowner as the ‘owner’ of the watercourse. In Roman law, ownership was defined as the total right to the thing; in modern legal theory the owner’s right to exclude others from using his property is presented as a central aspect in definition of ownership (Demsetz 1998: 144–5). In the last century ownership has also been described as ‘a bundle of rights’ and the question of who is ‘owner’ has moved further into the background (see the summary of the discussions Smith 2011: 279–91, on the one side, and Baron 2014, on the other side). The Roman concept of ownership is that the owner has the right to the undefined ‘rest’ while other persons can have limited rights, like a right of way, the right to take firewood on the property or water from a watercourse through a pipeline. This concept has become the dominant view in Scandinavian countries. The old Germanic concept of property was different, as it did not distinguish sharply between ownership and limited rights (Gierke 1905: 349–54). The practical functions of the property could be allocated to different persons without deciding who was the ‘owner’, in the sense that he had the ‘right to the rest’ that was not distributed. One spoke of ‘split’ or ‘separated’ ownership, where two or more people can be owners of different values or uses of the same thing, e.g. forest, grassing, fishing, hunting, etc (see Robberstad 1963: 162–6). The system is that the landowner owns the watercourse but some functions are free for others to use, such as taking water, roaming or riverdriving of logs. The landowner is still considered the owner of the watercourse, as he is the one who will have the right to new forms of utilization that occur as a result of technological development, as the example with electricity shows. The flexibility of the concept of ownership has made it possible to develop a system that gives reasonable public access to water and other resources in the watercourses, while the owner still has sufficient control to prevent over-exploitation of water resources and fisheries.

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MANAGEMENT OF INTERNATIONAL WATERCOURSES IN SCANDINAVIA A few major watercourses cross the borders between Scandinavian countries exists. The largest is the Trysilelven/Klaraa¨lv. The Trysil River (Trysilelven) starts in Norway and runs into Sweden, where it is called the Klara River (Klaraa¨lv). The Tana River forms parts of the border between Norway and Finland. The Jacob and Pasvik Rivers form most of the border between Norway and Russia. Some smaller watercourses and lakes also cross the border between Norway and Sweden, and between Sweden and Finland. A treaty on questions related to the law on watercourses was concluded between Norway and Sweden on 11 May 1929. The treaty applies to undertakings and works of all kinds carried out in one country if it will have noticeable effects on the water level, stream, direction or volume of water in the other country, or if it will affect the wandering of fish to the detriment of the other country. The convention also applies to roaming or river-driving logs. All watercourses that cross borders or form the border between two countries are covered by this treaty. The question of whether an undertaking in a watercourse shall be accepted and on which terms this can take place, is decided on the basis of the laws of the country where it is planned. The effects of the undertaking in both countries shall be taken into consideration. No permit that will lead to noticeable nuisance in another country can be granted without permission from that country. If a permit from the other country is necessary, the decision shall be made on the basis of the rules in this country (Article 13). Either country can demand that a commission with an equal number of members from each country prepare the case and give a statement on whether the undertaking should be accepted and on which terms. The decision shall still be made by the authorities in the country where the undertaking is to be carried out. Several joint projects on the utilization of the hydropower on both sides of borders have been carried out on the basis of the treaty and individual agreements. One such project is the Sandkil Waterfall, which is dammed up on both sides of the border. The fall is used for power production in a plant 10 km inside Sweden, but the power belongs to the Hedmark County in Norway. Norway has agreements with Russia on power production from the Pasvik River in Finnmark. Several dams have been built and are owned separately by either Norway or Russia, and both countries use the Enare Sea on Finnish territory as a water reservoir for the power plants along the Pasvik River, based on the 14 June 1959 agreement between the three countries on the regulation of the Enare Sea. Norway later agreed to pay compensation for damages resulting from the regulation. An agreement with Finland has also been made on the transfer of water from some lakes into the Neiden River, as this would influence the water level on Finnish side of the border (see NOU 1994: 352–4). On 30 October 2013, Norway

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and Finland signed an agreement on the joint management of the Tana, Neiden, Munkelva and Pasvik Rivers in order to fulfil the demands of the European Union water directive on the improvement of water quality in joint watercourses and on the joint management of watercourses crossing borders between the countries. A similar agreement will have to be entered into with Sweden. CONCLUSION The historic development of water law in Scandinavia shows that practical considerations and natural conditions are of great importance for the development of the legal regime for watercourses. The relatively strong position of landowners in Norway and Sweden might also have influenced the development of early water law. Water has not been a scarce resource in Scandinavia in the sense that people cannot meet their basic needs. New forms of utilization such as power production and modern irrigation, have created competition for water resources, as have population growth and a strong increase in water consumption per capita. All of these forms of utilization have increased the awareness of the need to manage water resources in a sustainable manner. Public regulation of the use of water resources has increased, but the starting point is still private ownership. Scandinavian countries developed rather advanced rules for the division of water and other resources in watercourses at an early stage, even though the competition for water resources at the time was rather limited. The flexible and functional concept of property in Scandinavian law made it possible to adapt the law to the special features of watercourses in a manner that divided the right to the disposal between private owners internally and also between owners and the public. The principles developed in national water law were also used in the development of the treaties for watercourses crossing borders in Scandinavia and might be of interest in relation to the problem of managing international watercourses. REFERENCES Amundsen, O., Lov om Vassdragsreguleringer (med kommentar, 1928). Baron, J., University of Cincinnati Law Review, 82 (forthcoming 2015). Bengtsson, B., Miljo ¨ra ¨tt (Iustus fo ¨ rlag, 1986). Brekken, et al., 2000. Vannressursloven med kommentar (2000) Demsetz, H., ‘Property rights’ in: The New Palgrave Dictionary of Economics and the Law, Vol. 3 (1998), pp. 144–55. Fleischer, C.A., Petroleumsrett (Oslo: Universitetsforlaget, 1983). Gierke, O.F. von, Deutsches Privatrecht: Bd. Sachenrecht, Vol. 2 (Berlin: Duncker & Humblot, 1905).

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Larson, L.M., The Earliest Norwegian Laws (New York, NY: Columbia University Press, 1935) (reprint 2008). Motzfeldt, U.A., Den norske vasdragsrets historie indtil aaret 1800 (Brøgger i Comm, 1908). Norsk Retstidende (1836 –) NOU, 1994: 12 Lov om vassdrag og grunnvann. Robberstad, K., Kløyvd eigedomsrett. Lov og rett (Oslo: Universitetsforlaget 1963), pp. 162–6. ———, ‘Tingsrettssoga. History of real property’, in: Juss og jord (Oslo: Universitetsforlaget, 1978), pp. 168 197–215. Rogstad, D., in Falkanger. T. and Haagensen, K., Vassdrags og Energirett (Oslo: Universitetsforlaget, 2002). SOU 1977: 27. Revision av vattenlagen. Stro ¨ mberg, R., Vattenlagen med kommentar (Liber, 1984). Smith, H., Econ Journal Watch 8/3 (2011), pp. 279–91. Skaanske Lov, in Danmarks gamle Love paa Nutidsdansk (Copenhagen 1945) Vislie, A., Ferdsels-og fløtningsretten (og dens stilling under ekspropriasjon, 1955).

6

State Sovereignty in the Case Law of the International Court of Justice

Sergio Marchisio POSITION OF THE COURT ON STATE SOVEREIGNTY This chapter aims to outline the position of the International Court of Justice (ICJ), i.e. the principal judicial organ of the United Nations, on state sovereignty as a key concept in international law. Needless to say that the impact of state sovereignty on the development of international law has been and still is fundamental. The ICJ itself pointed out in the Corfu Channel case in 1949 that ‘between independent States, respect for territorial sovereignty is an essential foundation of international relations (ICJ Reports 1949: 4, 35)’. As we are dealing here with the judicial interpretation and application of this principle by what is considered to be the gate-keeper and guardian of general international law, the main question to answer would be whether the development of the state sovereignty doctrine has had an impact on the jurisprudence of the Court, and whether the jurisprudence of the Court contributed to the development of the doctrine of state sovereignty. In the following, I will attempt to provide some tentative answers to these questions. In considering the contribution of the ICJ to the development of the concept of state sovereignty, we should take into account what patterns had become discernible in the case law of the ICJ’s predecessor, the Permanent Court of International Justice (PCIJ), touching upon issues that we would regard as related to state sovereignty. In general, we can observe that the jurisprudence of the ICJ in contentious cases has been highly deferential towards the precedents on state sovereignty established by the PCIJ and international arbitrators in the period of l’entre-deux-guerres. The ICJ often referred to the principle that limitations of state sovereignty were not to be presumed and that treaty provisions stipulating such restrictions were to be interpreted restrictively. One of the most frequently quoted decisions to which the ICJ still makes reference is the arbitral award in the Island of Palmas case (Netherlands, USA), rendered on 4 April 1928 by Max Huber, former president of the PCIJ. The main concept is that ‘Sovereignty in the relations between States signifies independence. Independence in

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regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State (UN Reports of International Arbitral Awards, II, 838–9)’. In the judgement of 11 September 1992 in the case of Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), the ICJ’s chamber mentioned Huber’s classic dictum: ‘practice, as well doctrine, recognizes – though under different legal formulae and with certain differences as to the conditions required – that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title’ (ICJ Reports 1992, 563). In the decisions of the Court, general considerations of state sovereignty first appear in more or less incidental ways; the legal reasoning in some cases essentially turns around matters that are connected with state sovereignty or in regard to which sovereignty plays a more ancillary role and is thus mentioned more or less obiter. In some cases, the Court underlines, in a very short and concise way, the main features and content of the principle of state sovereignty. One of these occasions where the Court gives an indication about what sovereignty means is the decision concerning the dispute on Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). In replying to Singapore’s assertion about the existence of a ‘traditional Malay concept of sovereignty’, based on control over people rather than on control over territory, the Court had the opportunity to indicate that ‘sovereignty comprises both elements, personal and territorial’ (ICJ Reports 2008: 40). The ICJ’s case law dealing with, or at least touching upon, state sovereignty issues in specific ways over time turned out be richer, however not so much as might be expected. As a matter of fact, opportunities for the Court to devote itself to state sovereignty issues depended on the nature of the cases brought before it. As we shall see, there seems not to be any autonomous re-elaboration by the Court of the concept of state sovereignty, which is perceived as being the basis of the international community and its legal order, but which still remains anchored, in the Court’s view, to the classical notion. The development of international law has not brought the Court, in other words, to reconsider this fundamental notion or to present it in a different shape, notwithstanding the doctrinal assertions that international law has moved from the traditional concept of state sovereignty and that state sovereignty implies responsibility (Peters 2009: 522–4). STATE SOVEREIGNTY AS A GENERAL CONCEPT Apart from references to state sovereignty not essential to the decision, if we were to run through the relevant judgements and advisory opinions

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rendered by the Court in chronological order and, in doing so, group the case law according to the relevance of state sovereignty considerations, several clusters might be distinguished, with some falling into more than one of them. Thus, we will find a certain number of cases in which state sovereignty arguments have played some role, but the actual significance of sovereignty in these cases as well as the contribution of the Court’s jurisprudence to its development is rather limited. It is natural, on the contrary, that case law with state sovereignty arguments have developed mainly in tandem with the widening of territorial and maritime disputes, which are one of the core issues in the ICJ’s jurisprudence, and only marginally touched upon issues of international watercourses or shared water resources. Fundamentally, the ICJ case law has not addressed the doctrinal controversy concerning how the notion of state sovereignty should be qualified: as a right to sovereignty of each state or as a matter of fact, corresponding to the notion of independence. More often, the Court presents state sovereignty as a right, a legal position equivalent to the right to political independence. Moreover, international law only covers relations among independent states and state sovereignty in the external sense is independence, which is not the result of an octroi on the part of international law (Arangio-Ruiz 1972: 574–5). In the judgement on the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), the Court considered the acquisition of sovereignty by a state as a consequence of the acquisition of independence: ‘By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power’ (ICJ Reports 1986: 568). This decision seems to support the view that state ‘sovereignty’ as such, without further qualification, is in its essence a mere fact, equivalent to independence. SOVEREIGNTY AND THE PROHIBITION OF THE THREAT OR USE OF FORCE When dealing with state sovereignty before the ICJ, an important point to be considered is that, unlike the legal framework within which the PCIJ built its jurisprudence, the Court has worked in a different legal environment, influenced by the immediate post-war legal context of the Charter of the United Nations. In the Charter, two principles regarding state sovereignty are spelled out as fundaments of the system in Article 2 in paragraphs 1 and 4, respectively: on the one hand, the right of sovereign equality of all states, and, on the other hand, the obligation, incumbent on all member states, of refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

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If we look at the decisions of the ICJ, we realize that several decisions have addressed state sovereignty issues in relation with the principle of sovereign equality of states, as well as that of the protection of state territorial integrity and political independence. This principle is considered to belong to the constitutional premises of the international legal order, as made clear by Article 2, paragraph 1, of the Charter (Kokott 2011: 2–6). The Court’s jurisprudence has therefore been highly influenced by the legal tenet of the Charter on the prohibition of threat or use of force, accompanied by its corollary the principle of non-intervention. I already mentioned the judgement of 1949 on the Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania), where these principles were presented as part and parcel of customary international law and essential foundations of international relations (ICJ Reports 1949: 35). The leading case, however, is the 1986 Nicaragua case. From the judgment of 27 June 1986 on the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the right to sovereignty and to political independence of any state emerges as the core norm of contemporary international law. It should be fully respected and should not in any way be jeopardized by activities that are prohibited by the principle that states should refrain in their international relations from the threat or use of force against the territorial integrity or the political independence of any state, and the duty not to intervene in matters within the domestic jurisdiction of a state (ICJ Reports 1986: 144). Also in the judgement of 10 October 2002 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), the issue at stake was the violation of the obligations to fully respect the territorial sovereignty and political independence of the states under conventional and customary international law. Accordingly, Nigeria was found to be under an obligation expeditiously and without condition to withdraw its administration and its military and police forces from the area of the Lake Chad and the Bakassi peninsula, falling within Cameroon sovereignty (ICJ Reports 2002: 457). THE FREEDOM OF CHOICE OF THE POLITICAL SYSTEM OF A STATE AS A PART OF STATE SOVEREIGNTY Closely connected with the protection of territorial sovereignty and political independence of states in international law is the freedom of choice of the political, social, economic and cultural system of a state as a part of the fundamental principle of sovereignty. Indeed, the traditional concept of state sovereignty constitutes an important normative inhibition to military intervention. Always in the judgement in the Nicaragua case, the Court specified that adherence by a state to any particular doctrine

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does not constitute a violation of customary international law: ‘to hold otherwise would make nonsense of the fundamental principle of State sovereignty on which the whole of international law rests.’ The Court refused to admit the creation of a new rule opening up a right of intervention by one state against another on the ground that the latter has opted for some particular ideology or political system (ICJ Reports 1986: 133). It is true, however, that today the right of states to freely choose their political system could be understood in a more democratic, people-oriented way. One could argue whether the ICJ’s statement, which sprung out from the international law of peaceful coexistence during the Cold War, maintains its validity in the light of the more recent developments concerning the protection of human rights and the reactions against their massive and systematic violations, or in the light of the principle of the responsibility to protect. The Court has not had the opportunity to consider again this issue, but it is highly improbable that it would have changed its opinion. On the contrary, the statement that state sovereignty extends to the area of its foreign policy seems a rather obvious assertion: ‘From the standpoint of international law [...], it is sufficient to say that State sovereignty evidently extends to the area of its foreign policy, and that there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State.’ SOVEREIGN EQUALITY OF STATES AND RIGHT TO IMMUNITY As already mentioned, a central point in the Court’s legal reasoning over state sovereignty is the principle of sovereign equality of states. In the Court’s view, state sovereignty implies equality, as embodied in several resolutions of the UN General Assembly, mainly resolution 2625 (XXV) and the annexed Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. The latter declines the principle of sovereign equality in several elements, namely judicial equality; the rights inherent in full sovereignty; the duty to respect the personality of other states; the inviolability of the territorial integrity and political independence of the state; the right freely to choose and develop its political, social, economic and cultural systems; and the duty to comply fully and in good faith with its international obligations and to live in peace with other states. In the judgement of 2012 concerning the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), the rule of state immunity from the jurisdiction of other states ( par in parem non habet iurisdictionem) is founded on the principle of sovereign equality of states. In other words, the principle that each state possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of

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the state over events and persons within its territory, is not absolute, but limited by the rule on the sovereign immunity of other states, to be recognized within the limits of international law, and as an expression of the sovereign equality among states. Exceptions to the immunity of a state are therefore in principle to be excluded as they represent a departure from the principle of sovereign equality, the right to immunity from the jurisdiction of other states being inherent in full sovereignty of states (ICJ Reports 2012: 24). Similarly, the ICJ’s case law presents other aspects in which state sovereignty can display itself as sovereign equality. In the Asylum case (Colombia v. Peru, 1950), the Court found that the arguments submitted by Colombia revealed confusion between territorial asylum and extradition, on the one hand, and diplomatic asylum, on the other: ‘A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State’ (ICJ Reports 1950: 274). Likewise, the declaration of acceptance of the ICJ compulsory jurisdiction is, in the Court’s opinion, an act of state sovereignty. In the Fisheries Jurisdiction case (Spain v. Canada), the Court recalled that the interpretation of a declaration made under Article 36, paragraph 2, of its Statute, and of any reservations it contains, is directed to establishing whether mutual consent has been given to the jurisdiction of the Court and that it is for each state, in formulating its declaration, to decide upon the limits it places upon this acceptance. Thus, a declaration of acceptance of the compulsory jurisdiction of the Court, is a unilateral act of state sovereignty (ICJ Reports 1998: 453). This dictum is in the same line of the famous statement contained in the Wimbledon case’s decision, where the PCIJ declined to see in the conclusion of any treaty by which a state undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty: ‘No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty’ (PCIJ Collection of Judgments, Series A, no. 1, 1923: 25). STATE SOVEREIGNTY AND RESERVATIONS TO TREATIES The law of treaties can also be a matter where state sovereignty is involved. In the advisory opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951), the Court rejected the argument that any state entitled to become a party to the Genocide Convention might do so while making any reservation chosen by virtue of ‘sovereignty’. The Court felt that this was an ‘extreme application’

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of the idea of state sovereignty, which could lead to a complete disregard of the object and purpose of the Convention (ICJ Reports 1951: 13). In the advisory opinion regarding the Judgments of the Administrative Tribunal of the International Labour Organization upon complaints made against UNESCO, the sovereignty of states was considered as having no role to play when dealing with the jurisdiction of administrative tribunals called to adjudicate upon a complaint of an official against an international organization (ICJ Reports 1956: 97). A RIGHT RECOGNIZED TO THE EXTENT NECESSARY TO THE EXERCISE OF SOVEREIGNTY Furthermore, a right belonging to a state can sometimes be recognized only to the extent necessary to the exercise of the sovereignty of that state. In the 1960 judgement on the case concerning the Passage over Indian Territory (Portugal v. India), the issue was the recognition, claimed by Portugal, of a local custom – namely a right of passage between the enclaves of Dadra and Nagar-Aveli and between these enclaves and the coastal district of Daman – to be respected by India. The Court found that with regard to private persons, civil officials and goods in general there existed a constant and uniform practice allowing the envisaged free passage, accepted as law by the parties. The Court therefore held that Portugal had in 1954 a right of passage over intervening Indian territory in respect of private persons, civil officials and goods in general, but only to the extent necessary for the exercise by Portugal of its sovereignty. SITUATIONS THAT DO NOT CORRESPOND TO SOVEREIGNTY In a second cluster, the Court engaged in discussion of matters other than state sovereignty, even though the subjects might somehow be linked technically, and made decisions to distinguish other legal forms of administration and jurisdiction from state sovereignty. These are the decisions following which mandates, legal ties of allegiance and property rights do not correspond to state sovereignty. In the opinions concerning the International Status of South West Africa and Western Sahara, respectively, the Court addressed the issue of sovereignty in a negative way, distinguishing sovereignty from other kinds of exercise of powers over certain territories and populations. First, the creation of the Mandate, as a new international institution, did not involve any cession of territory or transfer of sovereignty to the Union of South Africa (ICJ Reports 1950: 131). While confirming the continued existence of the Mandate for South West Africa conferred upon the Union, and of international obligations derived therefrom, the territory had ceased, as a

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consequence of the war of 1914–18, to be under the sovereignty of the states that formerly governed them and were inhabited by peoples not yet able to assume a full measure of self-government. In his separate opinion, Sir Arnold McNair underlined that the doctrine of sovereignty had no application to this system: ‘Sovereignty over a Mandated Territory is in abeyance [...]. Authority, control or administration: this is not the language of sovereignty. The Union of South Africa exercised most of the powers which are inherent to sovereignty, but the residual elements were neither exercised nor possessed by the Union’ (ICJ Reports 1950: 149–50). In the Western Sahara case (1975), the ICJ’s advisory opinion considered that there were issues concerning the attribution of sovereignty over the region and elements concerning the concept of sovereignty. However, the acquisition of sovereignty was considered as effected through agreements with local rulers, namely derivative oaths of title, not originally obtained by occupation of terrae nullius. Morocco’s claim to ‘legal ties‘ with Western Sahara at the time of colonisation by Spain was put by the Court as a claim to tie sovereignty on the ground of an alleged immemorial possession of the territory, based on the public display of sovereignty, uninterrupted and uncontested, for centuries. The information did not, however, support that the Sultan displayed authority over some of the tribes of Western Sahara (ICJ Reports 1975: 48–9). Thus, even taking into account the specific structure of the Sherifian State, any tie of territorial sovereignty between Western Sahara and that state had to be excluded (ICJ Reports 1975: 44–7). Similarly, in the judgment on the case concerning Kasikili/Sedudu Island (Botswana/Namibia) of 13 December 1999, the Court inferred from the subsequent practice of the parties to the 1890 Treaty that even if links of allegiance may have existed between the Masubia and the Caprivi authorities, it had not been established that the members of this tribe occupied the Island a ` titre de souverain (ICJ Reports 1999: 1105–7). Similarly, the Court has always endorsed the long established distinction between sovereignty and property rights in international law, noting however that in international litigation sometimes ‘ownership’ over territory had been used as equivalent to ‘sovereignty’ (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Malaysia/Singapore, ICJ Reports 2008: 57–8). STATE SOVEREIGNTY AND TITLES OF TERRITORIAL SOVEREIGNTY A third cluster of decisions of the ICJ tackles the concept of sovereignty from the angle of the legal titles of acquisition of territorial sovereignty. The notion of territorial sovereignty is often overlapping in the Court’s jurisprudence, with the notion of sovereignty tout court and this is quite understandable, both of them being fundamentally equivalent to the ius

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excludendi alios from the exercise of sovereign right within a certain territory and over a certain population. Thus, the cluster of decisions where more often state sovereignty is concerned are those dealing with disputed titles of territorial sovereignty. The concept of title, more generally, comprehends both any evidence that may establish the existence of a right, and the actual source of that right. The essence of territorial sovereignty is indeed contained in this notion of title. In the Minquiers and Ecrehos case (France/United Kingdom), the Court was requested to determine whether the sovereignty over the islets and rocks of the Minquiers and Ecrehos groups, respectively, belonged to the United Kingdom or the French Republic. Each government submitted that it was entitled under international law to full and undivided sovereignty over all the mentioned groups. The Court found that the case did not present the characteristics of a dispute concerning the acquisition of sovereignty over terra nullius, that the sovereignty over the islets and rocks of the two groups belonged to the United Kingdom under the ancient title of conquest, and that both groups were treated as an integral part of the fief of the Channel Islands, which were held by the British King (ICJ Reports 1953: 71). Another title of territorial sovereignty often referred to by the Court is the principle uti possidetis iuris. In the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), the Court said that in the case of uti possidetis iuris, the pre-eminence should be accorded to legal title over effective possession as a basis of sovereignty (ICJ Reports 1986: 23). The same position was taken in the judgment of 16 March 2001 concerning the Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), where the aspect relating to sovereignty was solved with reference to the applicability of the uti possidetis iuris principle in favour of the State of Bahrain as sovereign over the Hawar Islands and titular of the sovereign rights over the shoals of Dirbal and Qit’at Jaradah, disregarding the principle of effectivite´s (ICJ Reports 2001: 117). TERRITORIAL SOVEREIGNTY AND THE ROLE OF ACQUIESCENCE The traditional concept of the display of territorial sovereignty maintains in the Court’s view an important role also with regard to the abandonment of sovereignty. In the case concerning Sovereignty over Certain Frontier Land (Belgium/Netherlands), the issue in dispute was the acquisition of sovereignty over the plots at Zondereygen in derogation of a treaty of 1843. While the frontier in general was a linear one, in the area north of the Belgian town of Turnhout there were a number of enclaves formed by the Belgian commune of Baerle-Duc and the Netherlands commune of Baerle-Nassau (Sumner 2004: 1793–4). Having examined the situation which obtained in

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respect of the disputed plots, the Court reached the conclusion that the Belgian sovereignty established in 1843 over these plots had not been extinguished (ICJ Reports 1959: 230). The Nigerian argument in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, was that peaceful possession, coupled with acts of administration, represented in itself a manifestation of sovereignty (over the Bakassi Peninsula and over a part of territory of Cameroon in the area of Lake Chad). The Court, however, concluded that there was no acquiescence by Cameroon in the abandonment of its title in the area in favour of Nigeria. As the situation was essentially one where the effectivite´s did not correspond to the law, accordingly ‘preference should be given to the holder of the title’ (ICJ Reports 2002: 455–7). The same principle had been endorsed in the judgement of the Frontier Dispute (Burkina Faso/Republic of Mali) (ICJ Reports 1986: 587). In other cases, however, acquiescence played an important role in determining the titular of the title of sovereignty over a certain territory. In the case Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), the concept of acquiescence was considered equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent (ICJ Reports 1984: 305). Similarly, the decision concerning the dispute on Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) addressed the issue of the passage of the sovereignty over one area from one state to another and made reference to the failure to conduct a ` titre de souverain or to respond to concrete manifestations of the display of territorial sovereignty of other states, observing that: ‘The absence of reaction may well amount to acquiescence. That is to say, silence may also speak, but only if the conduct of the other State calls for a response.’ Accordingly, the Court determined that sovereignty over Pedra Branca/ Palau Batu Puteh passed to Singapore. The main criterion followed by the ICJ in these cases has been indeed the stability and certainty of sovereignty: ‘Because of that any passing of sovereignty over territory on the basis of the conduct of the Parties [...] must be manifested clearly and without any doubt by that conduct and the relevant facts. That is especially so if what may be involved, in the case of one of the Parties, is in effect the abandonment of sovereignty over part of its territory’ (ICJ Reports 2008: 50–1). DELIMITATION DISPUTES AND DISPUTES AS TO THE ATTRIBUTION OF TERRITORY A fourth group of cases deals with apportionment of territorial or maritime areas and the delimitation of terrestrial and maritime boundaries and frontiers. Here, the Court underlines that there should be no confusion

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between cases where the object of the dispute is the attribution of territory to the sovereign state according to the legal titles it possesses and disputes where the object is the delimitation of a frontier line between two or more terrestrial or maritime zones. The leading case in this respect is the North Sea Continental Shelf cases (Germany/Denmark – Germany/Netherlands), where the Court argued that its task related essentially to the delimitation and not the apportionment of the areas concerned or their division into converging sectors. Delimitation, in the Court’s view, is a process that involves establishing the boundaries of an area already, in principle, appertaining to the coastal state, and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, though in a number of cases the results may be comparable, or even identical. Once made, is this distinction really fundamental as far as the legal consequences of the two diverse operations are concerned? The case concerning Maritime Delimitation and Territorial Questions (Qatar/ Bahrain) is relevant from this point of view because it minimizes the consequences of that specification. The chamber in fact entered into the distinction, on which the parties argued at length, over the classification of their dispute, namely if it was a ‘frontier – or delimitation – dispute’ or a ‘dispute as to the attribution of territory’ and esteemed that, in the great majority of cases, including the one before it, the distinction outlined above was not so much a difference in kind but rather a difference of degree as to the way the operation in question was carried out: ‘The effect of any delimitation, no matter how small the disputed area crossed by the line, is an apportionment of the areas of land lying on either side of the line’ (ICJ Reports 2001: 93–4). Moreover, the effect of any judicial decision rendered either in a dispute as to attribution of territory or in a delimitation dispute is necessarily to establish a frontier. In many cases the Court’s function is double, as it was in the case between Qatar and Bahrain. TERRESTRIAL SOVEREIGNTY AND LAND AND MARITIME RIGHTS Another clear point deriving from the case law of the ICJ is that maritime rights derive from the coastal state’s sovereignty over the land, a principle that can be summarized as ‘the land dominates the sea’. It is thus the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State (North Sea Continental Shelf, ICJ Reports 1969: 51; Aegean Sea Continental Shelf, ICJ Reports, 1978: 36). In this line, the right over the territorial sea appears as the natural prolongation of the land domain of the coastal state, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty

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of that state. The idea of the extension is in the Court’s opinion determinant. Delimitation of territorial seas does not present comparable problems, since the rights of the coastal state in the area concerned are not functional but territorial, and entail sovereignty over the sea-bed and the superjacent waters, and air column. Therefore, when carrying out that part of its task, the Court has to apply first and foremost the principles and rules of international customary law that refer to the delimitation of the territorial sea, while taking into account that its ultimate task is to draw a maritime boundary that serves other purposes as well. Similarly, in accordance with customary international law, islands – regardless of their size – enjoy the same status, and therefore generate the same maritime rights, as other land territory. Furthermore, a coastal state has sovereignty over low-tide elevations that are situated within its territorial sea, since it has sovereignty over the territorial sea itself, including its sea-bed and subsoil. Also the rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exists ipso facto and ab initio by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and its natural resources. In short, this is an inherent right, the existence of which may be declared but does not need to be constituted, and does not depend on its being exercised. In the Aegean Sea Continental Shelf case (Greece v. Turkey), the basic question in dispute was whether or not certain islands under Greek sovereignty were entitled to a continental shelf of their own and entitled Greece to call for a boundary to be drawn between those islands and the Turkish coast: ‘The question for decision is whether the present dispute is one relating to the territorial status of Greece, not whether the rights in dispute are legally to be considered as ‘‘territorial’’ rights; and a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status [...]. Present dispute regarding entitlement to and delimitation of continental shelf areas relates to territorial status of Greece’ (ICJ Reports 1978: 35–6). The same concept, to the effect that exclusive rights over submarine areas belong to the coastal state because the geographical correlation between coast and submerged areas of the coast is the basis of the coastal state’s legal title, was restated in the Continental Shelf case (Tunisia/Libyan Arab Jamahiriya) (ICJ Reports 1982: 61). In the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine area (Canada/United States of America), the parties requested a chamber of the Court to draw, in the Gulf of Maine area, a single line to delimit both the continental shelf and the 200-mile exclusive fishery zone. The chamber acknowledged that ‘legal title’ to certain maritime or submarine areas was always and exclusively the effect of a legal operation, likewise in the boundary resulting from a rule of law, and not

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from any intrinsic merit in the purely physical fact. In the chamber’s opinion it was therefore correct to say that international law confers on the coastal state a legal title to an adjacent continental shelf or to a maritime zone adjacent to its coasts (ICJ Reports 1984: 296). STATE SOVEREIGNTY AND WATER BOUNDARIES A further group of decisions by the ICJ are connected with territorial sovereignty and delimitation of water boundaries. In the 1962 case concerning the Temple of Preah Vihear (Cambodia v. Thailand), the issue was the territorial sovereignty, as a title derived from treaty clauses establishing the frontier along the watershed line. However, the exact course of the frontier was to be delimited by a mixed commission, and, in consequence, the line of the frontier would be the line resulting from the work of delimitation. Thailand referred to the documentary evidence indicative of the desire of the parties to establish frontiers which would not only be ‘natural’, but visible and unmistakable – such as rivers, mountain ranges, a crest line, a watershed or an escarpment line, where they existed. It argued that in the absence of any delimitation approved by the mixed commission, the line of the frontier must necessarily follow strictly the line of the true watershed, and that this line, at Preah Vihear, would have placed the Temple in Thailand. For the Court, the real question was whether the parties did adopt the line indicated on a map representing the outcome of the work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a binding character. There was, indeed, no reason to think that the parties attached any special importance to the line of the watershed as such, as compared with the overriding importance – in the interests of finality – of adhering to the map line as delimited and as accepted by them. The Court, therefore, felt bound – as a matter of treaty interpretation – to pronounce in favour of the line as mapped in the disputed area and to attribute the region of the Temple to Cambodia. In the decision in the case concerning the Kasikili/Sedudu Island (Botswana/Namibia), the Court addressed the issues of the determination of the boundary around the Island and of the location of the boundary in the ‘main channel’ of the River Chobe, which, however, was not identifiable. The English version referred to the ‘centre’ of the main channel, while the German version used the term thalweg of that channel (Thalweg des Hauptlaufes). The Court esteemed that the thalweg was the boundary when the watercourse is navigable and the median line between the two banks when it is not, and found that it could not rely on one single criterion in order to identify the main channel of the Chobe around KasikiliSedudu Island because the natural features of a river might vary markedly along its course and from one case to another. In referring to the main

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channel of the Chobe, the parties sought both to secure for themselves freedom of navigation on the river and to delimit as precisely as possible their respective spheres of influence. Accordingly, the Court found that the boundary between Botswana and Namibia followed the line of deepest soundings in the northern channel of the Chobe River around Kasikili Sedudu Island (Shaw & Evans 2000: 966–7). JOINT WATER SOVEREIGNTY OR SHARED COMPETENCE Now, the issue is whether the Court’s general and analogous statements on state sovereignty and territorial sovereignty have any meaning for the management of shared resources. In general the answer is positive, considering that this sector of international law forms an integral part of international law. There is indeed a tendency of certain sectors of international law to consider themselves as fragmented self-contained regimes, where primary (substantive) and secondary norms (that attach legal consequences to the breach of primary obligations) exclude the application of norms of general nature. This specialist approach means that the scope of the legal rules is defined by reference to a close system of values without any connection with the general system of law within which they are supposed to function. This way of thinking confuses the specialty of the rules on water management within international law with their self-sufficiency. On the contrary, this specialized legal framework does not work in isolation from the overall system of international law, and does not present the character of a self-contained regime, where substantive and procedural obligations are to be applied in an exclusive way. The case law of the ICJ demonstrates that we are faced indeed with a legal system that constitutes a special part of international law and functions in conjunction with the other parts of the international legal order in a cohesive fashion. Thus, there is no reason for concluding that the ICJ’s overall contribution on state sovereignty is irrelevant when we pass to the field of norms regarding the management of water resources. This perspective is confirmed by the last cluster of decisions that will be considered, namely the case law related more specifically to the issue of shared waters. These decisions are not abundant, but they are significantly demonstrative. I refer to the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) and to the two cases regarding the environmental aspects of state sovereignty. The first case is composed of three main elements: the dispute on the land boundary; the dispute over the legal situation of the islands; and the dispute over the legal situation of the maritime space. The chamber had no doubt that the starting point for the determination of sovereignty over the islands was the determination of the Gulf of Fonseca legal regime as an

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historic bay established by practice with three coastal States. The chamber paralleled the 1917 judgment of the Central American Court of Justice, reaching the conclusion that the Gulf waters, other than the 3-mile maritime belts, were historic waters and subject to a joint sovereignty (condominium) of the three coastal states. What did present a problem, however, was the precise character of the sovereignty that the three coastal states enjoyed in these historic waters, for an enclosed pluri-state bay presented the need of ensuring practical rights of access from the ocean for all the coastal states; and especially so where the channels for entering the bay had to be available for common use. However, because it is self-evident that every community necessarily presupposes, in the legal sense, the absence of partition, the chamber found that there was a community of interest of the three coastal states of the Gulf with perfect equality of common legal rights in the use of the waters and the ‘exclusion of any preferential privilege’. The notion of a ‘community of interest’ was expressly drawn from the judgment of the PCIJ in the case of the Territorial Jurisdiction of the International Commission of the River Oder of 1929 concerning navigation rights. When ‘a single waterway traverses or separates the territory of more than one State [...] a solution of the problem has been sought not in the idea of a right of passage for upstream States, but in that of a community of interest of riparian States’ (PCIJ Collection of Judgements, Series A, No. 23, 1929: 27). STATE SOVEREIGNTY AND THE CONCEPT/OBJECTIVE OF SUSTAINABLE DEVELOPMENT The notion of sustainable development with regard to state sovereignty has softly found its way into a number of decisions of the ICJ, firstly as a ‘concept’ (Gabcˇ`ıkovo-Nagymaros Project, Hungary v. Slovakia), and then as an ‘objective’ (The Pulp Mills on the River Uruguay, Argentina v. Uruguay). We should, however, admit that this concept/objective has had until now a modest impact on legal arguments and in the development of the notion of state sovereignty. Before the case concerning the Danube River, the Court had already attached great significance to respect for the environment, not only for states but also for the whole of humankind: ‘The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment’ (Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996: 241–2). As a further step, the Court admitted that, in the field of environmental protection, vigilance and prevention are required on

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account of the often-irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage and that new norms and standards that were set forth in a great number of instruments during the last decades, which ‘have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past’ (ICJ Reports 1997: 78). The need to reconcile economic development with protection of the environment – aptly expressed in the concept of sustainable development – brought the Court to indicate that the parties had to find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river (Sohnle 1998: 92–6). It was a very general statement, that invited criticism from judge Weeramantry in his separate opinion: sustainable development is not only a concept, but it is a principle with normative value (ICJ Reports 1997: 88–9). In the judgement of 20 April 2010, in the Pulp Mills on the River Uruguay case, the ICJ made some further, but limited comments on the legal implications of sustainable development, without going all the way towards the recognition of it as a legal norm. The issue was to ascertain whether the object of the Statute of the River Uruguay, which Argentina claimed Uruguay had breached, was consistent with the objective of sustainable development. In this context, the Court superseded the previous statement of sustainable development as a concept and qualified it as ‘an objective’ with which specific state conduct must be consistent (Barral 2012: 387–8). Once again, however, it remained vague about what kind of measures had to be put in place in order to reach the objective. The rather tautological reasoning was that these measures should mainly be aimed to the integration of environmental considerations in economic development, preventing environmental damage and strengthening international cooperation. As a consequence, in order to comply with the duty to achieve the optimum and rational utilization of the River Uruguay, the parties had to use the means of the existing joint machinery for cooperation, taking account of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian states. The concept is certainly acquiring a more solid locus standi in international jurisprudence, having also been mentioned as the duty that requires states to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering state in the judgment of 18 February 2013 rendered by the arbitral tribunal in the case of the Indus Waters Kishengange. The award allowed India to proceed with the hydroelectric project, subject to ensuring a minimum downstream flow of water to Pakistan.

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CONCLUSION The case law of the ICJ has contributed to the evolution of the doctrine of state sovereignty by introducing some new considerations, such as those concerning sustainable development. If we look at the position of the ICJ on the principle of state sovereignty, however, it becomes imprudent to argue that it is being ousted from its position as the core principle of international law. The case law of the Court does not support any argument in favour of the conclusion that state sovereignty is being complemented, and will eventually be replaced, by new normative foundations of international law. The arguments proposed by the doctrine concerning the so-called ‘humanization’ of international law and the concept of sovereignty still remain to be reflected in the practice of international law and in the case law of the ICJ (Canc¸ado Trindade 2010: 391–9). In many respects, state sovereignty is equivalent, in the Court’s view, to the same notion expressed by the PCIJ in the judgement of 7 September 1927 on the Lotus case: ‘The family of nations consists of a collection of different sovereign and independent States.’ Conservative as it would appear, this is the only conclusion that we can draw from the tour d’horizon of this particular category of Court’s cases where state sovereignty is involved as a point of reference for the Court’s legal reasoning. REFERENCES Arangio-Ruiz G., The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations. 1972, III. Recueil des Cours de l’Acade ´mie de droit international de la Haye, pp. 431–628. Barral V., ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’, European Journal of International Law (2012), pp. 377–400. Bekker P.H.F., ‘Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening)’, American Journal of International Law (2003), pp. 387–98. Bothe M., O’Connell M.E., Ronzitti N., Redefining Sovereignty. The Use of Force after the Cold War (New York, NY: Transnational Publishers, Inc. 2005). Canc¸ado Trindade A.A., International Law for Humankind. Towards a new Jus Gentium (Leiden-Boston: Martinus Nijhoff Publishers, 2010). Crawford J., ‘Sovereignty as a Legal Value’, in JCrawford, J., Koskenniemi, M. (eds), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), pp. 117–33. Gill T.D. (ed.), Rosenne’s The World Court what it is and How it Works (LeidenBoston, Martinus Nijhoff Publisher, 2003). Kokott J., ‘States, Sovereign Equality’, in Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press, 2011).

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Peters, A., ‘Humanity as the A and V of Sovereignty’, European Journal of International Law (2009), pp. 513–44. Rosenne, S., The Law and Practice of the International Court 1920–2005 I (The Hague: Koninklijke Brill, 2005). Schulte, C., Compliance with Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004). Shaw, M.N. and Evans, M.D., ‘Case concerning Kasikili/Sedudu Island (Botswana/ Namibia)’, International and Comparative Law Quarterly (2000), pp. 964–78. Shi J., ‘Maritime Delimitation in the Jurisprudence of the International Court of Justice’, Chinese Journal of International Law (2010), pp. 271–91. Sohnle J., ‘Irruption du droit de l’environnement dans la jurisprudence de la CIJ: l’affaire Gabcikovo-Nagymaros’, Revue ge´ne´rale de droit international public (1998), pp. 85–121. Sumner, B.T., ‘Territorial Disputes at the International Court of Justice’, Duke Law Journal (2004), pp. 1779–812. Thirlway H., ‘The Law and Procedure of the International Court of Justice’, British Year Book of International Law (1993), pp. 1–54.

Part II

Contemporary Challenges to State Sovereignty

7

Determining Sovereign Rights and Duties over International Watercourses: The Contribution of the International Law Commission and the UN General Assembly

Alistair Rieu-Clarke INTRODUCTION The drafting of a convention on the topic under consideration involves political as well as legal aspects. In order to achieve the aim of conceiving a draft framework convention broadly acceptable to the international community, the political aspects of the task should not be underestimated. (Evensen 1984, paragraph 18)

Activities by one state within a particular watercourse can easily affect the interests of other states that share the watercourse. Reconciling these competing interests requires watercourse states to develop a shared understanding as to their respective rights and obligations. Where do the sovereign rights (and obligations) of one state end, and the rights of another state begin? Does a state have exclusive sovereign rights to parts of a watercourse situated within its territory, or are such watercourses inherently ‘international’ and therefore beyond sovereignty? In terms of sovereignty, can a distinction be made between the waters and the watercourse itself? Similarly, what happens if a state alters land within its territory in a way that affects the quality or quantity of water flowing within an international watercourse, e.g. by increasing the likelihood or magnitude of floods? Could land areas within the territory of one state, therefore be designated ‘international’, and beyond the sovereignty of that state? While tensions between sovereignty and international watercourse are understandably most acute – and arguably most studied – at the level of the individual watercourse, there is a strong interface between global processes and watercourse-specific practice (Boisson de Chazournes 2009, Rieu-Clarke 2010). The most significant global process related to issues of sovereignty over international watercourses has been the work of the United Nations General Assembly (UNGA) and International Law Commission (ILC), and the adoption of the Convention on the Law of the

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Non-navigational uses of International Watercourses on 21 May 1997 (1997 UN Watercourses Convention). The purpose of this chapter is to examine the global process by which the 1997 UN Watercourses Convention was drafted and ultimately adopted. The chapter will study views and opinions presented by the legal experts of the ILC and member states within the UNGA throughout the course of their work on the Convention. Additionally, the chapter will examine state reaction following adoption of the Convention, and subsequent activities leading towards the Convention’s entry into force. By conducting such an approach, the chapter will be able to trace key areas where sovereign interests between states proved difficult to reconcile. In addition, it will assess the extent to which the work of the ILC and UNGA managed to resolve such difficulties. Ultimately, the paper will seek to determine the degree to which the work of the ILC and UNGA fostered shared understandings between states over international watercourses. BACKGROUND AND OVERVIEW TO THE WORK OF THE ILC AND UNGA In 1959, sparked by pressures on international watercourses and some high-profile disputes at the time, the UNGA requested that the UN

Figure 7.1. Meeting of the UN GA Sixth Committee to discuss the work of the ILC on the law of the non-navigational uses of international, 17 November 1970, New York.

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secretary-general prepare a report on, ‘Legal problems relating to the utilisation and use of international rivers’, which was subsequently submitted to the UNGA in 1963 (UNGA Res 1401 (XIV), 21 November 1959). Based on the findings of the report, the UNGA decided in 1970 that the ILC should take up the study of the Law of Non-navigational uses of International Watercourses (UN Doc. A/RES/2669(XXV)). A sub-committee of the ILC was then established, which came up with a preliminary set of questions intended to elicit the views of states on how the ILC might focus their work (UN Doc. A/CN.4/283, 1974). The ILC progressed its work on the topic through its plenary sessions (28th (1976), 31st (1979), 32nd (1980), 35th–43rd (1983–91), 45th (1993) and 46th (1994)), Drafting Committee and special rapporteur reports. The work of the ILC’s special rapporteurs commenced with Kearney’s introductory report in 1976, which reflected upon the Replies of Governments to the Commissions Questionnaires in 1976 (Kearney 1976; UN Doc. A/CN.4/294). Schwebel then produced three reports from 1979 to 1981, which proposed the ‘framework convention’ approach, and developed 17 draft articles (Schwebel 1979, Schwebel 1980, Schwebel 1981). Upon his appointment to the International Court of Justice (ICJ), Schwebel was replaced as special rapporteur by Jens Evensen, who sought to develop the work of Schwebel into a ‘Draft Convention’ comprised of six chapters and 39 articles, (Evensen 1983) which he subsequently revised following comments from the UNGA and ILC (Evensen 1984). Upon Evensen’s own appointment to the ICJ, Stephen McCaffrey took over as Special Rapporteur, and produced a total of seven reports between 1985 and 1991, (McCaffrey 1985, McCaffrey 1986, McCaffrey 1987, McCaffrey 1988, McCaffrey 1989, McCaffrey 1990, McCaffrey 1991) which ultimately resulted in a set of 32 draft articles being adopted on first reading by the ILC in 1991 (UN Doc. A/CN.4/ L.458). In 1993, Rosenstock was appointed special rapporteur and took up the task of responding to the comments by the Sixth Committee of the General Assembly on the 1991 draft articles (Rosenstock 1993, Rosenstock 1994). The revised 1991 draft articles were then adopted on second reading in 1994 (UN Doc. A/CN.4/L.493). Having received the draft articles from the ILC in 1994, the UNGA took the decision to convene its Sixth Committee as a ‘working group of the whole’, open to all UN member states for three weeks from 7 to 25 October 1996, ‘to elaborate a framework convention on the law of the nonnavigational uses of the international watercourses’ (UN Doc. A/49/52). The Sixth Committee subsequently extended its meeting schedule to 27 November 1996, and 24 March–4 April 1997, before the 1997 Watercourses Convention was adopted on 21 May 1997. Between 1976 and 1982, 30 states provided written replies to the set of questions formulated by the ILC (UN Doc. A/CN.4/294; UN Doc. A/ CN.4/314; UN Doc. A/CN.4/324; UN Doc. A/CN.4/329; UN Doc. A/CN.4/352). States were also invited to submit ‘comments and observations’ on the draft

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articles on the Law of the Non-navigational uses of International Watercourses that were adopted by the ILC on first reading at its 43rd session (1991) (UN Doc. A/CN.4/447). In addition to these written comments, member states frequently debated the work of the ILC within the UNGA, and the ILC used these comments to further shape their work. Ultimately, the work of the Sixth Committee in 1996 and 1997, based on the ILC’s draft articles, therefore constituted a major effort by UN member states to reach a shared understanding on applicable rules and principles – at a global level – that were capable of being applied to a wide range of international watercourse contexts. REPLIES OF GOVERNMENTS TO THE COMMISSION’S QUESTIONNAIRE The first major opportunity for the ILC to gauge the extent of any ‘shared understanding’ pertaining to the law of the non-navigational uses of international watercourses came with the Replies of Governments to the Commission’s questionnaire (UN Doc. A/CN.4/294; UN Doc. A/CN.4/314; UN Doc. A/CN.4/324; UN Doc. A/CN.4/329; UN Doc. A/CN.4/352). The question posed by the ILC that sparked the most debate was, ‘is the geographical concept of an international drainage basin the appropriate basis for a study of the legal aspects of the non-navigational uses of international watercourses?’ (UN Doc. A/CN.4/283, 1974). A number of states were keen to adopt the concept of ‘an international drainage basin’, which had been previously introduced by the 1966 International Law Association (ILA) Helsinki Rules to mean, ‘a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus’ (ILA 1966: p. 100). This definition encompassed both successive and contiguous watercourses, tributaries and main channels, and surface and groundwater. The ILA had justified its use of the term ‘international drainage basin’ as follows: The drainage basin is an indivisible hydrologic unit, which requires comprehensive consideration in order to effect maximum utilization and development of any portion of its waters. This conclusion is particularly significant when it is recognised that a state, although not riparian to the principal stream of the basin, may nevertheless supply substantial quantities of water to that stream; such a state thus is in a position to interfere with the supply of water through action with respect to the water flowing within its own territory. (ILA 1966: p. 100)

The ‘indivisibility’ argument was supported by several states in their replies to the ILC. (See for example UN Doc. A/CN.4/294, p. 160 (United States); UN Doc. A/CN.4/294, p. 162 (Barbados); UN Doc. A/CN.4/294,

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p. 163 (Finland)) In the replies by other states, however, concern that the use of the drainage basin concept would constitute an excessive encroachment on their territorial sovereignty was expressed. Ecuador, for instance, argued that, ‘if reference were made to the geographical concept of a basin, it would leave open the possibility of undue and unacceptable restrictions which would affect not only the watercourse in question but also all those which constitute it, as well as those in the geographical areas through which they pass’ (UN Doc. A/CN.4/294, p. 154, see also (UN Doc. A/CN.4/294, p. 160 (Spain), p. 163 (Nicaragua)). Other states, while not dismissing the drainage basin concept, offered a more pragmatic approach. Canada, for instance, favoured the term ‘international watercourses’ on the basis that a geographically-narrow definition could be used as a starting point, whereas consideration of natural drainage or the functional unit could be incorporated into the articles ‘where circumstances of the case so require’ (UN Doc. A/CN.4/294, p. 162). Others simply used the terms ‘watercourse’ and ‘drainage basin’ interchangeably (UN Doc. A/CN.4/294, p. 154 (Hungary), p. 154 (Finland)). The replies of the governments to the ILC’s questionnaire therefore revealed that at the outset of the work, states had very different understandings as to the international nature of watercourses. How the ILC sought to resolve these tensions will be explored in the following section. THE WORK OF THE SPECIAL RAPPORTEURS (1976–94) Definition of an international watercourse At the outset of the work, Kearney argued that the focus of the work should be on ‘the physical characteristics of water over which different sovereignties are exercised at different times’ (Kearney 1976, paragraph 24). In dismissing the state responses to the ILC’s questionnaires as limited, and referring to examples of multilateral treaties on the Niger, Plate and Senegal Rivers, Kearney went on to propose that the scope of the articles should cover ‘international river basins’ (Kearney 1976, paragraph 49). Schwebel was sympathetic to Kearney’s approach, thus recognising the ‘areal and functional unity of a drainage basin’, and that, ‘from a scientific and economic – one might even say, from an objective – perspective, use of the basin concept for the development of legal rules regarding international watercourse would seem the appropriate method of taking into account the interrelationships that apply throughout the entire area that is drained by a river system’ (Schwebel 1979, paragraph 41). Schwebel was also sensitive to the diverging opinions of states, however, and the reticence to universally endorse the drainage basin concept. In a bid to respond to the concerns of some states, Schwebel proposed the use of the term ‘watercourses system’, which he claimed differed from the concept

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of ‘drainage basin’ as it focused on the flow of water through the territory of a system state, rather than on the broader territory of a drainage basin (Schwebel 1980, paragraph 61). Whether this system included groundwater was left deliberately ambiguous, but it did encompass tributaries, as well as making no distinction between successive and contiguous waters. While being sympathetic to the ‘watercourse system’ approach, proposed by Schwebel, Evensen observed that, ‘the discussion in the Sixth Committee of the General Assembly in 1983 seems to indicate that the use of the ‘system’ concept approach may be a serious hurdle in the search for a generally acceptable instrument’ (Evensen 1983, paragraph 18). Evensen therefore proposed the removal of the term ‘system’, and suggested a definition of ‘international watercourse’ as ‘a watercourse – ordinarily consisting of freshwater – the relevant parts or components of which are situated in two or more States (watercourse States)’ (Evensen 1983, paragraph 25). Moreover, he proposed the ‘relative’ character of international watercourses, in that, ‘to the extent that components or parts of the watercourse in one State are not affected by or do not affect uses of the watercourse in another State, they shall not be treated as being included in the international watercourses for the purposes of the present Convention’ (Evensen 1983, paragraph 25). Additionally, Evensen emphasized the need to include groundwater as a relevant component or part of an international watercourse, but noted that ‘independent’ groundwater resources should not be included given their specificity (Evensen 1983, paragraphs 29–30). It was not until his seventh and final report that McCaffrey tackled the issue of defining an international watercourse. McCaffrey proposed that the term ‘watercourse’ be defined as ‘a system of waters consisting of hydrographic components which, by virtue of their physical interrelationship, constitute a unitary whole’ (McCaffrey 1991, paragraph 9). In elaborating upon the components, McCaffrey was keen to emphasize the interrelationship between surface waters and groundwaters (McCaffrey 1991, paragraphs 17–49). Additionally, McCaffrey cautioned against the ‘relative’ international character of a watercourse approach, on the basis that it had ‘superficial appeal; and was flawed on the basis of hydrological reality and interdependence (McCaffrey 1991, paragraph 81). The ILC on the whole accepted the approach adopted by McCaffrey (UN Doc. A/CN.4/L.458, paragraph 70). However, a significant change in the definition contained in the 1991 ILC draft articles was the omission of the term ‘hydrographic components’, which was justified on the basis that it may include atmospheric waters. The 1991 draft articles therefore defined a ‘watercourse’ as ‘a system of surface and under-ground waters constituting by virtue of their physical relationship a unitary whole and flowing into a common terminus’ (UN Doc. A/CN.4/L.489, paragraph 169). The only change from the 1991 draft articles to the 1994 draft articles, which was of a stylistic nature, was the replacement of the term ‘under-ground waters’ with ‘groundwaters’ (UN Doc. A/CN.4/L.493, p. 90).

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While the definition of a ‘watercourse’ in the 1991 and 1994 ILC draft articles might therefore be seen as a victory for the systems approach originally proposed by Schwebel, it is not without its difficulties. The preceding article of the 1994 ILC draft articles makes the distinction between ‘international watercourses and their waters’, (Article 1(1), UN Doc. A/CN.4/L.493, p. 89) but the relationship between the waters and the international watercourse is blurred in Article 2(b) (UN Doc. A/ CN.4/L.493, p. 89). The definition of a watercourse in Article 2(b) appears to go too far by focusing exclusively on the waters, without mention of the geomorphological structures that influence the flow of that water. This blurring of waters and watercourses is confounded by the ILC’s commentary to Article 2(b), which states that ‘groundwaters’, ‘refers to the hydrologic system composed of a number of different components through which water flows, both on and under the surface of the land. These components include rivers, lakes, aquifers, glaciers, reservoirs and canals. So long as these components are interrelated with one another, they form part of the watercourse’ [emphasis added] (UN Doc. A/CN.4/ L.493, p. 90). Here it could be questioned whether the ILC meant to use the term ‘watercourse’ rather than ‘groundwater’. Additionally, the explanation focuses on the components through which the water flows, rather than the water itself. Equitable and reasonable utilization and participation In his second report, Schwebel proposed an article that stipulated that, ‘System states shall treat the water of an international watercourse system as a shared resource’ (Schwebel 1980, paragraph 142). By way of a pre-emptive counter to political concerns that some states may have, Schwebel went on to argue that, What happens to water in one part of an international watercourse generally affects, in large measure or small, sooner or later, what happens to water in other parts of that watercourse. A mass of scientific proof can be brought to bear to reinforce this incontestable truth. The time of the Commission will be saved if what is the fact is accepted as the fact and if the law is shaped to respond to the fact. The immediate essential fact is that the water of an international watercourse system is the archetype of the shared natural resource. (Schwebel 1980, 141)

Schwebel also introduced the principle of equity into the work of the ILC (Schwebel 1980, paragraph 41). Schwebel claimed that, ‘the right of each State to share equitably in the uses of the waters of an international watercourse system is indisputable and undisputed’ (Schwebel 1980, paragraph 85).

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The ILC and the UNGA broadly accepted inclusion of the principle of equitable utilization, and Article 5(1) of the 1991 draft articles read, ‘Watercourse States shall in their respective territories utilize an international watercourse [system] in an equitable and reasonable manner. In particular, an international watercourse [system] shall be used and developed by watercourse States with a view to attaining optimum utilization thereof and benefits therefrom consistent with adequate protection of the international watercourse [system]’ (UN Doc. A/CN.4/ L.489, p. 31). There was little change between this article and Article 5(1) of the 1994 ILC draft articles (UN Doc. A/CN.4/L.493, p. 96). In addition to the notion of equitable utilization, however, Schwebel sought to progress the principle of equity by making reference to equitable participation (Schwebel 1980, paragraph 85). Schwebel therefore claimed that ‘there now exists a duty under general international law to participate affirmatively in effectuating the more rational development, use and protection of shared water resources (Schwebel 1980, paragraph 85). On the relationship between equitable utilization and participation, Schwebel maintained that, Equitable participation assumes, includes and articulates equitable utilization as the fundamental rule, but places it in the larger context of the system States’ need and willingness to give attention to critical matters of common interest respecting shared water resources which may be ancillary to uses or at best only indirectly related to uses. This larger approach – the integrated approach, scientifically so essential to the water-related aspects of the welfare of system States – was not covered conceptually by the traditional terminology addressed to uses and to ‘dividing’ quantities of water, despite efforts of governmental and non-governmental bodies to make the terms embrace quality, hazard and conservation concerns. (Schwebel 1980, paragraph 91)

The obligation to participate in the use, development and protection of an international watercourse in an equitable and reasonable manner remained in Article 5(2) of the 1991 and 1994 draft articles (UN Doc. A/CN.4/L.489; UN Doc. A/CN.4/L.493). By the adoption of the 1994 ILC draft articles, any explicit reference to international watercourses as a ‘shared natural resource’ had been deleted. During debates in the ILC during its 35th session and the UNGA in its 38th session it appeared that there was ‘considerable doubt and opposition’ to the idea of international watercourses as a shared natural resource (Evensen 1984, paragraph 47). By introducing the concept of equitable participation alongside equitable utilization, however, it could be argued that the ILC provided the vague concept of a ‘shared natural resource’ with, ‘more definitive legal content’ (McCaffrey 1988, paragraph 74).

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The no harm principle Another key area of contention throughout the work of the ILC was the balance between the equitable and reasonable utilization principle, and the principle of responsibility for appreciable (or significant) harm. In this regard, Schwebel presented a draft article that read, The right of a system state to use the watercourse system is limited by the duty not to cause appreciable harm to the interests of another system state, except as may be allowable under a determination for equitable participation for the international watercourse system involved. (Schwebel 1980, paragraph 155)

In qualifying the harm at the level of ‘appreciable’, Schwebel claimed that, ‘the effect or harm must have at least an impact of some consequence, for example on public health, industry, agriculture or environment in the affected system state, but not necessarily a momentous or grave effect (Schwebel 1980, paragraph 141). While Schwebel recognized that this obligation, in its strict sense, favoured downstream states, he was keen to point out that harm was capable of flowing both upstream and downstream (Schwebel 1980, paragraphs 146–52, see also Salman 2010). Following Schwebel’s proposal, the balance between equitable and reasonable utilization, and no harm was hotly debated in the ILC and UNGA, and was arguably the main area where upstream and downstream states had differing views on their rights and obligations over international watercourses. Throughout the work of the ILC the weight shifted between the two principles (see Evensen 1984, paragraph 98, McCaffrey 1988, paragraph 180). By the adoption of the 1991 ILC draft articles, Article 7 simply stated that: ‘watercourse states shall utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse states’ (UN Doc. A/CN.4/L.458). Article 7 therefore made no specific mention of equitable and reasonable utilization, which in turn raised doubts over the relationship between the two principles (Wouters 1996, Utton 1996). The text was therefore modified in the 1994 ILC draft articles, with Article 7(1) setting out the obligation that, ‘watercourse states shall exercise due diligence to utilize an international watercourse in such a way as not to cause significant harm’ (UN Doc. A/CN.4/L.493). In presenting Article 7 as a due diligence obligation, the ILC stipulated that, What the obligation entails is that a watercourse State whose use causes significant harm can be deemed to have breached its obligation to exercise due diligence so as not to cause significant harm only when it has intentionally or negligently caused the event which had to be prevented or has intentionally or negligently not prevented others in its territory from causing that event or has abstained from abating it. (UN Doc. A/CN.4/L.493, 103)

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In addition, the Drafting Committee of the ILC changed ‘appreciable’ harm to ‘significant’, as it was felt that ‘appreciable’ could mean both capable of being measured and significant (Rosenstock 1994, p. 116). Article 7(2) then sought to set out the relationship between no harm and equitable and reasonable utilization. Accordingly, Article 7(2) read, Where, despite the exercise of due diligence, significant harm is caused to another watercourse state, the state whose use causes the harm shall, in the absence of agreement to such use, consult with the state suffering such harm over:

(a) The extent to which such use is equitable and reasonable; (b) The question of ad hoc adjustments to the utilization, designed to eliminate or mitigate any such harm caused and, where appropriate, the question of compensation (UN Doc. A/CN.4/L.493, 102). This articulation of Article 7(2) would therefore appear to place Article 7 in line with the principle of equitable and reasonable utilization, and perhaps – at least in limited circumstances – permit harm that may be deemed equitable. Such circumstances are limited, because states must still ensure that uses are both reasonable and consistent with the requirement to protect ecosystems. Protection of the ecosystems of an international watercourse Early in the work of the ILC, Schwebel claimed that developments in international law had meant that ‘environmental damage currently measurable solely within the territory of a system state arguably may fall under international regulation because the legal presumption is that the preservation of the environment in the large is a licit concern of all nations’. (Schwebel 1981, paragraph 247) Along similar lines, McCaffrey proposed a draft article that read, Watercourse states shall, individually and in co-operation, take all reasonable measures to protect the environment of an international watercourse [system], including the ecology of the watercourse and of surrounding areas, from impairment, degradation or destruction, or serious danger thereof, due to activities within their territories. (McCaffrey 1988, p. 243)

In the use of the term ‘reasonable’ measures, McCaffrey sought to present this obligation as one of due diligence. However, in its 1991 ILC draft articles, which remained unchanged in the 1994 ILC draft articles, the obligation was more simply stated. Article 20 therefore provided that, ‘watercourse states shall, individually or jointly, protect and preserve the ecosystems of international watercourses’ (UN Doc. A/CN.4/L.493, p. 118).

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In justifying the use of the term ‘ecosystem’ in place of ‘environment’, the ILC commented that, [The term ‘environment’] could be interpreted quite broadly, to apply to areas ‘surrounding’ the watercourses that have minimal bearing on the protection and preservation of the watercourse itself. Furthermore, the term ‘environment’ of a watercourse might be construed to refer only to areas outside the watercourse, which is of course not the intention of the Commission. For these reasons, the Commission preferred to utilize the term ‘ecosystem’ which is believed to have a more precise scientific and legal meaning. (UN Doc. A/CN.4/L.493, p. 118)

The ILC went on to define an ‘ecosystem’ as, ‘an ecological unit consisting of living and non-living components that are interdependent and function as a community’ [emphasis added] (UN Doc. A/CN.4/L.493, p. 118). Article 20 has subsequently been described as, ‘a simple, but potentially powerful, provision’ (McCaffrey 2000, p. 66, see also McIntyre 2004). According to the ILC, the obligation to ‘protect’ ecosystems of international watercourse is ‘a specific application of the requirement contained in Article 5 that watercourse states are to use and develop an international watercourse in a manner that is consistent with adequate protection thereof’ (UN Doc. A/ CN.4/L.493, p. 119). Additionally, according to the ILC commentary, contained within the obligation to protect is the need to guard against significant threat of harm which means that the precautionary approach is part of the obligation contained in Article 20 (UN Doc. A/CN.4/L.493, p. 119). A question raised by the 1994 ILC draft articles, is whether this obligation is one of due diligence. THE SIXTH COMMITTEE OF THE UNGA (1996–7) Definition of an international watercourse Within the Sixth Committee’s work during 1996 and 1997, disagreements over scope largely centred around the issues of groundwater, and contiguous and successive watercourses. Turkey stated that, ‘a framework convention should deal only with surface waters’, (UN Doc. A/C.6/51/SR.23, paragraph 45) while others similarly proposed the replacement of the term ‘watercourse’ with ‘river’ (UN Doc. A/C.6/51/SR.23, paragraph 56). Excluding all groundwater from the draft articles was also supported by Ethiopia, Columbia Rwanda and Pakistan (UN Doc. A/C.6/51/SR.23, paragraph 47). However, others (Bangladesh, Finland, Greece, Mexico, Netherlands, Egypt, USA, Cameroon, Italy, Tanzania, France and Vietnam), expressed their concern at such an exclusion, arguing that ‘groundwaters and surface water were usually interrelated (UN Doc. A/C.6/51/SR.23, paragraph 66). In relation to successive and contiguous waters, Turkey proposed that there should be two definitions of an ‘international watercourse’, namely

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‘watercourses which form a boundary’ and ‘transboundary watercourses which flow successively through two or more States’ (N Doc. A/C.6/51/SR.23, paragraph 45). Others, however, were opposed to the distinction, thus arguing that both types of watercourse should be covered by the same regime (UN Doc. A/C.6/51/SR.23, paragraphs 63 and 66). Ultimately, the interrelationship between groundwater and surface waters was kept, and Article 2(a) of the Convention defined a ‘watercourse’ as ‘a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus’ (UNWC 1997). Equitable and reasonable utilization and participation, and the no harm principle Articles 5, 6 and 7 of the 1994 ILC draft articles proved to be the most controversial when it came to negotiations in the Sixth Committee. A number of views were expressed by the government delegations. Several states supported the balance that the ILC had struck between Articles 5, 6 and 7 (see UN Doc. A/CN.6/51/SR.15, paragraph 21 (United States); UN Doc. A/CN.5/51/SR.16, paragraph 50 (Germany); paragraph 53 (India); paragraph 58 (Mexico)). These sentiments were reiterated by China. With regard to Article 5, China stated that, ‘it established a proper balance between the rights and responsibilities of each watercourse state (UN Doc. A/CN.6/51/SR.15, paragraph 21; see also A/CN.6/51/SR.12 (Turkey)). Similarly, China felt that Article 7 ‘established the necessary balance between the rights and obligations of both upstream and downstream states’ (UN Doc. A/CN.5/51/SR.17, paragraph 9; see also UN Doc. A/CN.5/51/SR.16 (Czech Republic); paragraph 12 (Turkey)). In support of the primacy of equitable and reasonable utilization, some states proposed that Article 7 simply be deleted (UN Doc. A/CN.6/51/SR.15, paragraph 26 (Switzerland); UN Doc. A/CN.5/51/SR.16, paragraph 9 (Czech Republic); paragraph 13 (Turkey)). However, supporters of Article 5 still saw the benefit of retaining Article 7. South Africa, for instance, commented that, ‘article 5 alone did not provide sufficient guidance in cases of significant harm’ (UN Doc. A/CN.5/51/SR.16, paragraph 28; see also paragraphs 32–3 (Hungary); paragraph 40 (Congo); UN Doc. A/CN.5/51/SR.17, paragraph 6 (Venezuela)). At the other end of the spectrum, Brazil claimed that, ‘if the choice had to be made, the no-harm rule must prevail’ (UN Doc. A/CN.5/51/ SR.16, paragraph 41). In addition to the balance between Article 5 and Article 7, some states expressed their concern with the concepts of ‘significant harm’ and ‘due diligence’. Greece felt it was ‘unfortunate’ that harm must now, ‘not only be appreciable, or measurable, but significant as well’ (UN Doc. A/CN.5/51/ SR.16, paragraph 12). Others felt ‘significant’ was better than ‘appreciable’ as the latter, ‘did not cover harm which was not appreciable but whose

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cumulative effects might be significant (UN Doc. A/CN.5/51/SR.17, paragraph 14 (Mexico)). Mexico also claimed that it was useful to qualify harm as ‘significant’ because otherwise, almost any activity connected with watercourses would be prohibited’ (A/CN.5/51/SR.17, paragraph 58). Germany argued that harm should not be qualified, and the test should simply be if harm was caused; (UN Doc. A/CN.5/51/SR.16, paragraph 50) whereas Pakistan and Kuwait cautioned that the concept of ‘significant harm’ was ‘vague and open to various interpretations’ (UN Doc. A/CN.5/51/ SR.16, paragraphs 66 and 68, respectively). It was unclear from the discussion whether the delegates had a shared understanding of what was meant by ‘harm’, i.e., factual or legal injury. Some states also questioned the introduction of the due diligence obligation as being rather vague (UN Doc. A/CN.5/51/SR.16, paragraph 64 (Norway); UN Doc. A/CN5/51/SR.17, paragraph 18 (Bangladesh)). Based on the comments from states, a number of changes were made to the 1994 ILC draft articles by the Drafting Committee. In relation to Article 7 (1), the phrase ‘due diligence’ was replaced with the obligation ‘to take all appropriate measures’; however, it could be argued that both terms were synonymous (UNWC 1997). The final text of Article 7(2) stipulated that, where significant harm is caused despite appropriate measures being in place or in absence of any agreement, states should enter into consultation to eliminate or mitigate such harm having due regard for the provision of Articles 5 and 6 (UNWC 1997). Like the 1994 ILC draft articles, a similar balance was therefore struck in the final text, where the no significant harm principle was seen as subordinate to equitable and reasonable utilization. While it might therefore be maintained that the changes made by the UNGA to Articles 5 and 7 were minor, the end result was not satisfactory to all. Consensus could not be reached on the articles, and a recorded vote was therefore taken. Thirty-eight states voted in favour of the revised text, against four votes against (China, France, Turkey and Tanzania; while there were 22 abstentions) (UN Doc. A/C.6/51/SR.62, p. 3). Despite the changes being minor and its initial enthusiasm for the ILC’s 1994 draft articles, China curiously claimed that the amended proposal ‘did not resolve the imbalance between upstream and downstream states’ (UN Doc. A/C.6/51/SR.62, paragraph 6). Several states felt a better balance could be struck (UN Doc. A/C.6/51/SR.62, paragraph 10 (India), paragraph 15 (Switzerland), paragraph 16 (Mongolia), paragraph 17 (Israel), paragraph 18 (Spain), paragraph 19 (Czech Republic), paragraph 20 (Argentina), paragraph 21 (Ethiopia and Slovakia), paragraph 23 (Austria); paragraph 24 (Chile); paragraph 28 (Rwanda); paragraph 30 (Jordan); paragraph 31 (Tanzania); paragraph 32 (Syria)). Protection of the ecosystems of an international watercourse It could be envisaged that the states that had scrutinized Articles 5, 6 and 7 might have similar points to make regarding Article 20. Despite this, the

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debate on Article 20 was surprisingly straightforward. Most of the discussion centred around the term ‘ecosystem’, and whether it should be replaced by ‘ecological balance’, as proposed by China (UN Doc. A/CN.6/51/SR.15, paragraph 62). The majority of states were of the opinion that while the terms were synonymous, ‘ecosystems’ was a term more widely used in international environmental agreements and should therefore be retained (UN Doc. A/C.6/51/SR.60, paragraph 62). The only minor change to the text of the 1994 ILC draft articles was to replace the words, ‘individually and jointly’, with ‘individually’ and, where appropriate ‘jointly’ (UN Doc. A/C.6/51/SR.24, paragraph 33). The rationale behind the change was to stress the point that, ‘watercourse states were obliged to protect and preserve only the ecosystems of international watercourses within their territory’ (UN Doc. A/CN.6/51/SR.15, paragraph 64). The only significant discussion on the extent of the obligation to protect ecosystems came from Tanzania, which stated that ‘it was [...] concerned about the rigidity of the obligation set forth in article 20 and suggested that the words ‘‘where appropriate’’ be moved so that the text would read: ‘‘Watercourse States shall, where appropriate, individually and jointly protect and preserve the ecosystems of international watercourses’’’ (UN Doc. A/C.6/51/SR.60, paragraph 39). ADOPTION OF THE WATERCOURSES CONVENTION AND SUBSEQUENT DEVELOPMENTS Voting record of the UNGA Ultimately, the UNGA adopted the 1997 Watercourses Convention on 21 May 1997 (UN Doc. A/51/PV.99). A recorded vote was taken upon adoption of the Convention whereby 103 states voted in favour, to three against (Burundi, China and Turkey), with 27 abstentions (UN Doc. A/51/PV.99: 7–8). Subsequently, Belgium, Nigeria and Fuji informed the secretariat that they had intended to vote in favour of the text (UN Doc. A/51/PV.99: 7). Of the states that voted against the Convention, Turkey maintained that, ‘the draft Convention should have set forth only general principles’ (UN Doc. A/51/PV.99: 4). Additionally, Turkey noted that the Convention, inter alia, ‘does not make any reference to the indisputable principle of the sovereignty of the watercourse states over the parts of international watercourses situated in their territory’, and ‘the draft should clearly have established the primacy o the fundamental principles of equitable and reasonable utilization over the obligation not to cause significant harm’ (UN Doc. A/51/PV.99: 5). China also felt that the principle of territorial sovereignty should have been affirmed within the text of the Convention, (UN Doc. A/51/PV.99: 6) and the Convention as it stood reflected an ‘obvious imbalance’ between the rights and obligations of upstream and downstream states (UN Doc. A/51/PV.99: 6).

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In addition to the three states voting against, some of the states voting in favour and abstaining recorded their concerns with the text. These mirrored the concerns discussed during the work of the Sixth Committee, with a number of states raising the issue of the balance and content of Article 5, 6 and 7 (UN Doc. A/51/PV.99: 3 (Tanzania), 5 (Pakistan), 6 (Czech Republic), 7 (Slovak Republic), 9 (India), 9–10 (Ethiopia), 10 (Egypt), 11 (Israel), 11–12 (Spain) and 12 (Rwanda)). Work of the ILC and UNGA on transboundary aquifers Following the work on the Law of the Non-navigational uses of International Watercourses, the ILC subsequently decided to study the topic of ‘shared natural resources’ in its programme of work (UN Doc. A/55/10; see also Stephan 2011 and Mechlem 2011). Rosenstock – who was special rapporteur at the time of the adoption of the 1994 ILC draft articles, suggested that the Commission could usefully undertake a topic on ‘Shared natural resources focused exclusively on water, particularly confined groundwater, and such other single geological structures as oil and gas’ [emphasis added]. While Rosenstock likely had the idea to complement the previous work of the ILC on international watercourses, the work progressed along different lines. At the outset, Chusei Yamada, who was appointed special rapporteur, ‘considered that it would be appropriate to begin on a codification of ground waters as the follow-up of the Commission’s previous work on the codification of the law of surface waters’ [emphasis added] (Yamada 2007: 92–3). An additional factor may have been that in 2002, there were only 12 contracting parties to the 1997 Watercourses Convention, and no new ratifications were deposited in 2003 and 2004 (United Nations Treaty Series, 2012). Close adherence to the text of the Watercourses Convention may therefore not have been seen as a priority in this subsequent work (Loures & Dellapenna 2007: 60). Following commencement of the work in 2002, a set of 19 draft articles were adopted on first reading by the ILC in 2006 and submitted to governments for comments and observations by 1 January 2008 (UN Doc. A/CN.4/L.688). The ILC draft articles adopted on first reading were also debated in the Sixth Committee of the UN General Assembly in 2006 and 2007 (UN Doc. A/CN.4/595). All in all these written and oral comments reflected the opinions of 47 governments. Following these comments and observations, and after further debate in the ILC, the draft articles were revised and adopted upon second reading in 2008 (UN Doc. A/CN.4/ L.724). In the same year the UNGA encouraged states, ‘to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of [the] draft articles’ (UN Doc. A/63/439). At the same time, the UNGA decided to examine ‘the question of the form that might be given to the

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draft articles’ in a subsequent session (UN Doc. A/Res/63/124). Pursuant to UN General Assembly Resolution 66/104 it was then decided to include the ILC draft articles, and the related question of form, in the agenda for its 68th session in 2013 (UN Doc. A/Res/66/104). The ILC draft articles are made up of 19 articles separated into four parts. The first part deals with issues of scope and use of terms; the second part sets out general principles; part three relates to protection, preservation and management; and part four covers miscellaneous provisions, including technical cooperation, emergency situations, protection in times of armed conflict, and data and information vital to national define and security. In terms of scope, the ILC draft articles apply to: i) the utilization of transboundary aquifers or aquifer systems; ii) other activities that have or are likely to have an impact upon such aquifers or aquifer systems; and iii) measures for the protection, preservation and management of such aquifers or aquifer systems (Article 1(a)–(c), UN Doc. A/CN.4/724). An ‘aquifer’ is defined in the articles as ‘a permeable water bearing geological formation underlain by a less permeable layer and the water contained in the saturated zone of the formation’; whereas an ‘aquifer system’ means ‘a series of two or more aquifers that are hydraulically connected’ (Article 2(a) and (b), UN Doc. A/CN.4/724). A ‘transboundary aquifer’ or ‘transboundary aquifer system’ is defined, respectively, as ‘an aquifer or aquifer system, parts of which are situated in different states’ (Article 2(c), UN Doc. A/CN.4/724). The scope of the ILC 2008 draft articles raises a number of issues in relation to the 1997 Watercourses Convention. First, it can be seen that the word ‘transboundary’ is preferred over ‘international’. Yamada noted that the term ‘international’ was ‘objected to as it might suggest internalisation of aquifers’, and ‘the Commission adopted the term ‘transboundary’ to allay these misgivings’ (Yamada 2008: 5). It could be argued that this represented a step backwards from the text of the UNWC, and international cooperation more generally, although the term ‘transboundary’ is also commonly used, see for example the UNECE Water Convention (UNECE 1992). Second, there is significant overlap between the two instruments. By including the criterion that an ‘aquifer’ or ‘aquifer system’ be situated in different states, an aquifer solely located in one state, but connected to another state via a watercourse system – e.g., an aquifer located entirely in an upstream state may contribute surface water flows in a downstream state – would not fall under draft articles (Yamada 2007: 95–6). These aquifers would be covered by the 1997 Watercourses Convention but ‘transboundary aquifers’ or ‘transboundary aquifer systems’ – as defined in Article 2(a) and (b) of the ILC 2008 draft articles – that form part of an international watercourse, would fall under both the articles and the 1997 Watercourses Convention. Finally, ‘transboundary aquifers’ or ‘transboundary aquifers systems’ that are not part of a watercourse, commonly termed ‘confined aquifers’, would fall under the draft articles but not the

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1997 Watercourses Convention. Third, Article 3 of the ILC 2008 draft articles stipulates that, ‘each aquifer state has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory. It shall exercise its sovereignty in accordance with international law and the present articles’ (UN Doc. A/CN.4/724). As McCaffrey succinctly notes: If the subject matter being regulated is an immovable part of the territory of states, it is only natural to conceive of states as having ‘sovereignty’ over it. But if the subject matter is some-thing that moves from one state to another, from underground to surface, from surface to atmosphere, from atmosphere back to surface, and so on in the hydrologic cycle, the notion that states have sovereignty over it seems a far from perfect match. (McCaffrey: 286, see also McIntyre 2011)

Given the definition of an aquifer as being both the ‘permeable water bearing geological formation underlain by a less permeable layer’ and ‘the water contained in the saturated zone of the formation’, the approach of the ILC draft articles raises serious concerns vis-a `-vis sovereignty. The compatibility between the ILC 2008 draft articles and the 1997 Watercourses Convention was raised early on in the work of the ILC on transboundary aquifers. At one stage the special rapporteur even proposed an article that would give supremacy to the draft articles in areas of conflict (UN Doc. A/63/10, p. 15). The article was not taken up by the ILC, and there is no reference to the 1997 Watercourses Convention in the 2008 ILC draft articles, not even in the preamble. In relation to equitable and reasonable utilization, and no significant harm, the draft articles adopt a similar approach to the 1997 Watercourses Convention. Article 4 of the ILC draft articles requires aquifer states to utilize transboundary aquifers or aquifer systems accordance with the principle of equitable and reasonable utilization; and Article 7 stipulates that states should take all appropriate measures to prevent the causing of significant harm to other aquifer states or other states in whose territory a discharge zone is located (UN Doc. A/CN.4/724). The primacy of the principle of equitable and reasonable utilization is also upheld in Article 4(3), whereby it must be determined whether any significant harm caused is consistent with the principle of equitable and reasonable utilization (UN Doc. A.CN.4/724). While the concept of ‘equitable participation’ contained in Article 5(2) the 1997 UN Watercourses Convention is not present in the ILC 2008 draft articles, states are obliged to ‘aim at maximizing the long-term benefits’ from aquifers and aquifer systems, (Article 4(b), UN Doc. A.CN.4/724) and must ‘not utilise a recharging transboundary aquifer or aquifer system at a level that would prevent continuance of its effective functioning’ (Article 4 (d), UN Doc. A.CN.4/724). However, it could be maintained that Article 4 of the ILC 2008 draft articles falls short of the explicit, ‘duty to cooperate in the protection’ of an international watercourse which is contained in Article 5(2) of the 1997 Watercourses Convention.

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Moreover, Article 10, which is the first article in part three of the ILC 2008 draft articles dealing with protection, preservation and management, stipulates that, Aquifer states shall take all appropriate measures to protect and preserve ecosystems within, or dependent upon, their transboundary aquifers or aquifers systems, including measures to ensure that the quality and quantity of water retained in an aquifer or aquifer system, as well as that released through its discharge zones, are sufficient to protect and preserve such ecosystems (UN Doc. A.CN.4/724).

A notable change from the 1997 Watercourses Convention here is the explicit reference to the obligation to protect and preserve being one of due diligence. Ratification and entry into force Since its adoption, 30 states have ratified, accepted, acceded or approved the Convention, which is five short of the number required for its entry into force (United Nations Treaty Series 2012). Some commentators have

Figure 7.2. Signing of the 1997 Watercourses Convention by Amara Essy, the foreign minister of Co ˆ te d’Ivoire, 25 September 1998, New York.

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pointed to the text of the Convention as the primary causal factor in this instrument not entering into force (Biswas 2008, pp. 14–17). However, more plausible reasons such as treaty congestion at the time of its adoption, a lack of a champion pushing entry into force, and current low levels of awareness have proven to be more likely factors behind non-entry into force (Rieu-Clarke & Loures 2009). Misunderstandings and misperceptions over the key provisions of the Convention have also been identified as being significant (Salman 2007). As these factors have slowly been addressed, largely through the UN Watercourses Convention Global Initiative, more and more states have proved willing to support the Convention (World Water Forum 2012). Regardless of its entry into force, the Convention has proved influential in shaping international law, particularly in relation to regional and watercourse-specific arrangements, such as the 2001 Revised Southern Africa Development Community (SADC) Protocol on Shared Watercourses (SADC 2000). Similarly, just six months after its adoption, the ICJ referred to the 1997 Watercourses Convention in support of Hungary’s, ‘equitable and reasonable share of the natural resources of the Danube’ (ICJ 1997, p. 53). In addition to these developments, however, there is currently considerable momentum behind securing the Convention’s entry into force. In addition to the existing 30 contracting states, others have committed to joining the Convention (See Rieu-Clarke & Loures 2012). For example, during Rio +20, both the UK and Irish governments announced their intention to accede to the Convention (IBT 2012). Various global and regional institutions have also urged states to join the Convention, including the European Commission, (European Parliament 2012) the states of the Niger Basin, (Bamako 2011) and African Basin Organizations (Bangkok 2011). The 1997 Watercourses Convention’s entry into force may serve two broad aims in terms of the determination of sovereign rights and duties over international watercourses. First, entry into force, and widespread support, would have the effect of enhancing the legitimacy of the existing rules and principles contained within the Convention. Those rules and principles that at the time of its adoption may have been considered as emerging customary international law, such as the protection of ecosystems, might then be more convincingly argued to form part of the corpus of customary international law in the field. Second, entry into force provides an opportunity for states to consider ‘next steps’. Governments and institutions have already started to ponder how they might best support the implementation of the Convention once in force. France, for example, has offered to host the first meeting of the parties, and UN organizations such as UNECE, UNESCO and UNEP have been identified as potential candidates for housing the Convention (RieuClarke & Loures 2012). Through such potential institutional arrangements and synergies, further opportunities may present themselves to develop shared understandings of the key rules and principles contained within the Convention if it were to enter into force.

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CONCLUSION Without a shared understanding as to the relationship between sovereignty and international watercourses, it will be impossible for states to effectively adopt and implement applicable legal rules and principles. An analysis of the work of the ILC and UNGA relating to the law of the nonnavigational uses of international watercourses demonstrates that, at the global level, states found it difficult to reconcile their interests around a number of fundamental areas, such as the very concept of an international watercourse, and the appropriate guiding principle for reconciling competing interests. However, given the many diverging interests of watercourse states across the world, and the extensive process by which the Convention was adopted (spanning over 20 years), the end result was an inevitable compromise. On the question of whether the work of the ILC and UNGA has made a difference in respect of the key areas that were considered in this chapter, a number of points can be made. In relation to the very concept of an ‘international watercourse’, it would appear that, while certain tensions remain, some progress was made. Most states would appear to accept the indivisible nature of international watercourses, which was strongly pushed for by the special rapporteurs. While the current definition of a ‘watercourse’ in Article 2(b) of the Watercourses Convention is a little clumsy, it does recognize the linkages between groundwater and surface water, and tributaries and main channels. Additionally, the concept of equitable participation, and inclusion of the ecosystems of international watercourses, extends the scope of the work to encompass land–water interactions. Many interventions to protect water quality and quantity, as well as ecosystems, will require changes in land use practices – for example the use of pesticides in farming, or protecting forests to mitigate flood events. The Convention therefore takes some salient scientific aspects of the drainage basin concept, as defined in the 1966 ILA Helsinki Rules, while also accounting for political sensitivities associated with the latter concept. It is unfortunate that the ILC 2008 draft articles on transboundary aquifers did not solidify and expand on these definitional issues. In the reference to sovereignty, and the inclusion of water and the actual aquifer within the definition of an aquifer, the 2008 draft articles fuel confusion over whether states have sovereignty of the water flowing within and through the aquifer, as well as and the aquifer itself. With respect to the principles of equitable and reasonable utilization and participation, and no significant harm, the major achievement of the work was adding greater detail to the principle of equitable and reasonable utilization and participation, so as to include a duty to protect, as well as a right to an equitable use. This therefore gave greater detail to the notion of an international watercourse as a shared natural resource, with accompanying shared responsibilities.

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The Convention also navigated a careful balance between the equitable and reasonable principle, and no significant harm, therefore requiring states to take all appropriate measures to prevent significant harm, but accepting that despite a state taking such measures some significant harm may arise that entails no legal responsibility of the harming state. In such limited circumstances, that harm may be considered equitable and reasonable, as long as it conforms with the obligation of ‘adequate protection of the international watercourse’; (Articles 5(1) and (2)) as well as the obligation to protection the ecosystems of an international watercourse (Article 20). While not entirely satisfactory to all states, this may be the only possible compromise available. The discussions on the text of Article 7 of the Convention demonstrate considerable dissatisfaction with the key terms of ‘appropriate measures’ and ‘significant harm’. More could therefore be done to flesh out what these terms might mean in practice, which in turn might help enhance the acceptance of the balance between Articles 5 and 7. It is perhaps in Article 20 that the work of the ILC and UNGA made the most significant development. While some clarification is needed as to whether the obligation to protection the ecosystems of an international watercourse is one of conduct (i.e., due diligence) or result, the general acceptance by states with minimum discussion is encouraging. Moreover, as our understanding of ecosystems and the related concept of ecosystem services advances, Article 20 may well become even more powerful in shaping state behaviour (Spray & Rieu-Clarke 2012) as well as helping to give meaning to Articles 5 and 7 of the Convention. Ultimately, it might therefore be concluded that the ILC and UNGA have made significant strides in advancing a shared understanding of the sovereign rights and duties that apply to international watercourses. Much work remains to be done – work that could be significantly advanced with the entry into force of, and institutional support for, the 1997 Watercourses Convention. REFERENCES Bamako, ‘Solidarity for Water in Niger Basin Countries: Final Declaration of the Ministers of Water’, 19 October 2011. Available at: http://www.fondationchirac. eu/en/2011/10/forum-solidarity-for-water-in-niger-basin-countries-the-finaldeclaration-of-the-ministers-of-water. Bangkok, UNEP, Bangkok Declaration of African Basin Organizations, First International Environment Forum for Basin Organisations, 24–25 October 2011. Available at: http://www.nilebasindiscourse.org/index.php/e-resource-center/ doc_download/223-bangkok-declaration-of-african-basin-organizations Biswas, Asit, ‘Management of Transboundary Waters: An overview’, in Varis, Otortajada, C. and Biswas, A.K. (eds), Management of Transboundary Rivers and Lakes (Berlin: Springer, 2007).

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Bogdanovic, Slavko, International Law of Water Resources: Contribution of the International Law Association (1954–2000) (The Hague: Kluwer Law International, 2001). Boisson de Chazournes, Laurence, Freshwater and International Law: The Interplay between Universal, Regional and Basin Perspectives (UNESCO, Paris 2009). Available at: http://unesdoc.unesco.org/images/0018/001850/185080e.pdf. Brown Weiss, Edith, ‘The Rise or the Fall of International Law?’, Fordham Law Review 345 (2000–1), p. 69 European Parliament, European Parliament resolution on 6th World Water Forum taking place in Marseille on 12–17 March 2012, Resolution 2012/2552 (RSP), 6 March, 2012. Available at: http://www.europarl.europa.eu/sides/ getDoc.do?type¼MOTION&language¼EN&reference¼B7-0130/2012. Evensen, Jens, ‘First Report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/367 and Corr. 1, 19 April 1983’, in Yearbook of the International Law Commission 1983, Volume II (Part One), pp. 157–94. ———, ‘Second Report on the law of the non-navigational uses of international watercourses, UN Doc. A/CN.4/381 and Corr.1 and Corr.2, 24 April 1984’, in: Yearbook of the International Law Commission 1984, Volume II (Part One), pp. 103–27. Institut de Droit International, Utilisation of Non-maritime International Waters (Except for Navigation), Salzburg, Austria, 11 September 1961. Available at: http://www.idi-iil.org/idiE/resolutionsE/1961_salz_01_en.pdf. International Business Times staff reporter, ‘Rio+20 Meeting: UK to Accede to UN Water Convention’, International Business Times, 23 June 2012. Available at: http://www.ibtimes.co.uk/articles/355559/20120623/uk-signs-up-un-waterconvention-rio.htm. International Court of Justice, Case Concerning the Gabcˇ´ıkovo-Nagymaros Project (Hungary/Slovakia), 25 September 1997, International Court of Justice. Available at: http://www.icj-cij.org/docket/files/92/7375.pdf. International Law Association, Helsinki Rules on the Uses of the Waters of International Rivers, adopted at the 52nd Conference of the International Law Association, Helsinki, Finland, August 1966. ———, Berlin Rules on Water Resources, adopted at the 71st Conference of the International Law Association, Berlin, Germany, August 2004. Available at http://www.ila-hq.org/download.cfm/docid/5EE99D70-87CF-4D59-A3EDF 2E55BD9A93E. Kearney, Richard, ‘First Report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/295, 7 May 1976’, in: Yearbook of the International Law Commission 1976, Volume II (Part One), pp. 184–91. Loures, Flavia and Dellapenna, Joseph, ‘Forthcoming developments in international groundwater law: proposals for the way forward’, Water 21 (2007), p. 58. McCaffrey, S., Preliminary Report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/393, 5 July 1985’, in: Yearbook of the International Law Commission 1985, Volume II (Part One), pp. 87–96. ———, ‘Second Report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/399 and Add.1 and 2, 19 March, 12 and 21 May 1986’, in: Yearbook of the International Law Commission 1986, Volume II (Part One), pp. 88–144.

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———, ‘Third report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/406 and Corr.1 and Add.1 and 2, 30 March, 6 and 8 April 1987’, in: Yearbook of the International Law Commission 1987, Volume II (Part One), pp. 16–46. ———, ‘Fourth report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/412 and Add.1 and 2, 3 March, 3 and 9 May 1988’, in: Yearbook of the International Law Commission 1988, Volume II (Part One), pp. 206–50. ———, ‘Fifth report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/421 and Add 1 and 2, 5 April, 4 and 19 May 1989’, in: Yearbook of the International Law Commission 1989, Volume II (Part One), pp. 92–130. ———, ‘Sixth report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/427 and Corr.1 and Add 1, 23 February, 7 June 1990’, in: Yearbook of the International Law Commission 1990, Volume II (Part One), pp. 42–82. ———, ‘Seventh report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/436 and Corr.1-3, 15 March 1991’, in: Yearbook of the International Law Commission 1990, Volume II (Part One), pp. 46–69. ———, ‘An overview of the U.N. Convention on the Law of the Non-navigational Uses of International Watercourses’, Journal of Land Resources and Environmental Law 57 (2000), p. 20. ———, The Law of International Watercourses, 2nd ed. (Oxford: Oxford University Press 2007). ———, ‘The International Law Commission Adopts Draft Articles on Transboundary Aquifers’, American Journal of International Law 271 (2009), p. 103. McIntyre, Owen, ‘International Water Resources Law and the International Law Commission Draft Articles on Transboundary Aquifers: A Missed Opportunity for Cross-Fertilisation?’, International Community Law Review 237 (2011), p. 13. ———, ‘The Emergence of an ‘Ecosystem Approach’’, Review of European Community and International Environmental Law 13/1 (2004), p. 1. Mechlem, Kirsten, ‘Past, Present and Future of International Law of Transboundary Aquifers’, International Community Law Review 13 (2011), p. 309. Rieu-Clarke, Alistair, International Law and Sustainable Development – Lessons from the Law of International Watercourses (IWA: London 2005). Rieu-Clarke, Alistair, and Loures, Flavia, ‘Still not in Force: Should States Support the 1997 UN Watercourses Convention?, Review of European Community and International Environmental Law 18/2 (2009), p. 185. ———, ‘Should we care whether the UN Watercourses Convention enters into force?’, International Water Law Project Blog, 22 July 2012. Available at: http:// www.internationalwaterlaw.org/blog/. Rieu-Clarke, Alistair, Moynihan, Ruby and Magsig, Bjorn-Oliver, The UN Watercourses Convention – User’s Guide (Dundee: CWLPS, 2012). Rieu-Clarke, Alistair, and Spray, Chris, ‘Ecosystem Services and International Water Law – Towards a More Effective Determination and Implementation of Equity?’, Potchefstroom Electronic Law Journal 16/2 (2013), pp. 12–65.

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Rosenstock, R., ‘First report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/451, 20 April 1993’, in: Yearbook of the International Law Commission 1993, Volume II (Part One), pp. 179–85. ———, ‘Second report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/462 and Corr.1, 21 April 1994’, in: Yearbook of the International Law Commission 1994, Volume II (Part One), pp. 114–28. Southern Africa Development Community, ‘Revised Protocol on Shared Watercourses in the Southern African Development’, International Legal Materials 40 (2001), p. 317. Salman, S., ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law’, Water Resources Development 23/4 (2007), p. 625. ———, ‘The United Nations Watercourses Convention Ten Years Later: Why has its Entry into Force Proven Difficult?, Water International 22/1 (2007), p. 1. ———, ‘Downstream riparians can also harm upstream riparians: the concept of foreclosure of future uses’ Water International 35/4 (2010), p. 350. Schwebel, Stephen, ‘First Report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/320 and Corr. 1, 21 May 1979’, in Yearbook of the International Law Commission 1979, Volume II (Part One), pp. 143–177. ———, ‘Second Report on the l Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/332 and Add.1, 24 April – 22 May 1980’, in Yearbook of the International Law Commission 1980, Volume II (Part One), pp. 159–98. ———, ‘Third Report on the Law of the Non-navigational uses of International Watercourses, UN Doc. A/CN.4/348 and Corr.1, 11 December 1981’, in Yearbook of the International Law Commission 1982, Volume II (Part One), pp. 65–191. Stephan, Raya, ‘The Draft Articles on the Law of Transboundary Aquifers: The Process at the UN ILC’, International Community Law Review 13 (2011), p. 223. UN Doc. A/CN.4/283, ‘Report of the Sub-Committee on the Law of the Nonnavigational uses of International Watercourses’, in Yearbook of the International Law Commission 1974, Volume II (Part One), pp. 301–4. UN Doc. A/CN.4/294, ‘Replies of Governments to the Commission’s Questionnaire, and Add.1, 1 April 1976’, in Yearbook of the International Law Commission 1976, Volume II (Part One), pp. 147–83. UN Doc. A/CN.4/314, ‘ Replies of Governments to the Commission’s Questionnaire, 23 June 1978’, in Yearbook of the International Law Commission 1976, Volume II (Part One), pp. 153–261. UN Doc. A/CN.4/324, ‘Replies of Governments to the Commission’s Questionnaire, 13 July 1979’, in Yearbook of the International Law Commission 1979, Volume II (Part One), pp. 178–81. UN Doc. A/CN.4/329, ‘ Replies of Governments to the Commission’s Questionnaire, 10 March and 3 July 1980’, in Yearbook of the International Law Commission 1980, Volume II (Part One), pp. 153–8. UN Doc. A/CN.4/352, ‘ Replies of Governments to the Commission’s Questionnaire, 18 February and 28 June 1982’, in Yearbook of the International Law Commission 1982, Volume II (Part One), pp. 191–7.

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UN Doc. A/CN.4/447, ‘Comments and observations received from Governments, 3 March, 15 April, 18 May and 14 June 1993’, in Yearbook of the International Law Commission 1993, Volume II (Part One), pp. 146–78. UN Doc. A/CN.4/595, International Law Commission, Shared natural resources: comments and observations by Governments on the draft articles on the law of transboundary aquifers, 60th Session, 26 March 2008. UN Doc. A/CN.4/L.489, ‘Draft articles on the Law of the Non-navigational uses of International Watercourses. Titles and texts adopted by the Drafting Committee on second reading’, in Yearbook of the International Law Commission, 1993, Volume I, pp. 169–70. UN Doc. A/CN.4/L.493, ‘The Law of the Non-navigational uses of International Watercourses. Draft articles and commentaries thereto adopted by the Draft Committee on second reading’, in Yearbook of the International Law Commission 1994, Volume II (Part Two), pp. 89–135. UN Doc. A/CN.4/L.458, ‘Draft articles on Law of the Non-navigational uses of International Watercourses. Titles and texts adopted by the Drafting Committee’, in Yearbook of the International Law Commission 1991, Volume I, pp. 140–59. UN Doc. A/CN.4/L.688, International Law Commission, Shared Natural Resources. The Law of Transboundary Aquifers. Titles and texts of the draft articles adopted by the Drafting Committee on first reading, 58th Session, 7 June 2006. UN Doc. A/CN.4/L.724, International Law Commission, Shared Natural Resources. The Law of Transboundary Aquifers. Title and texts of the preamble and draft articles 1 to 19 on the law of transboundary aquifers adopted, on second reading, by the Drafting Committee, 60th Session, 29 May 2008. UN Doc. A/CN.6/51/SR.12, UN General Assembly, Summary Record of the 12th Meeting. Sixth Committee, 7th October 1996, 10am, 51st Session. UN Doc. A/CN.6/51/SR.15, UN General Assembly, Summary Record of the 15th Meeting. Sixth Committee, 8th October 1996, 3pm, 51st Session. UN Doc. A/CN.5/51/SR.16, UN General Assembly, Summary Record of the 16th Meeting. Sixth Committee, 9th October 1996, 10am, 51st Session. UN Doc. A/CN.5/51/SR.17, UN General Assembly, Summary Record of the 17th Meeting. Sixth Committee, 9th October 1996, 3pm, 51st Session. UN Doc. A/C.6/51/SR.23, UN General Assembly, Summary Record of the 23rd Meeting. Sixth Committee, 17th October 1996, 3pm, 51st Session. UN Doc. A/C.6/51/SR.24, UN General Assembly, Summary Record of the 24th Meeting. Sixth Committee, 25th October 1996, 10am, 51st Session. UN Doc. A/C.6/51/SR.25, UN General Assembly, Summary Record of the 25th Meeting. Sixth Committee, 25th October 1996, 10am, 51st Session. UN Doc. A/C.6/51/SR.60, UN General Assembly, Summary Record of the 61st Meeting. Sixth Committee, 3rd April 1997, 3pm, 51st Session. UN Doc. A/C.6/51/SR.61, UN General Assembly, Summary Record of the 61st Meeting. Sixth Committee, 4th April 1997, 10am, 51st Session. UN Doc. A/C.6/51/SR.62, UN General Assembly, Summary Record of the 62nd Meeting. Sixth Committee, 4th April 1997, 3pm, 51st Session. UN Doc. A/51/PV.99, UN General Assembly, Convention on the Law of the Nonnavigational uses of International Watercourses, 21 May 1997, 51st Session.

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UN Doc. A/55/10, Syllabuses on Topics Recommended for including in the Longterm Programme of Work of the Commission, available at: http://untreaty.un. org/ilc/reports/2000/english/annex.pdf#page¼7. UN Doc. A/63/10, International Law Commission, Report of the International Law Commission, 5 May–6 June and 7 July–8 August, 2008, 63rd Session. UN Doc. A/Res/63/12, GA Resolution, The Law of Transboundary Aquifers, 15 January 2009, 63rd Session. UN Doc. A/49/52, Draft articles on the Law of the Non-navigational uses of International Watercourses, 9 December 1994. Available at: http://untreaty. un.org/ilc/summaries/8_3.htm. UN Doc. A/Res/66/104, GA Resolution, The Law of Transboundary Aquifers, 13 January 2012, 66th Session. UN Doc. A/RES/2669(XXV), GA Resolution, Progressive Development and Codification of the Rules of International Law Relating to International Watercourses, 8 December 1970. Available at: http://untreaty.un.org/ilc/ summaries/8_3.htm. United Nations Economic Commission for Europe, ‘Convention on the Protection and Use of Transboundary Watercourses and International Lakes’, International Legal Materials 31 (1992), p. 1312. United Nations Treaty Collection, Multilateral Treaties Deposited with the Secretary General, available at: http://treaties.un.org/Pages/ViewDetails.aspx? src¼UNTSONLINE&tabid¼2&mtdsg_no¼XXVII-12&chapter¼27&lang¼en# Participants, accessed 23 October 2012. United Nations Watercourses Convention, 1997: ‘Convention on the Law of the Non-navigational Uses of International Watercourses’, International Legal Materials 36 (1997), p. 700. Utton, Albert, ‘Which Rule Should Prevail in International Water Disputes: That of Reasonableness or that of No Harm?’, Natural Resources Journal 36 (1996), p. 635. World Water Forum, Platform for Solutions, WWF Water Conventions Initiative, http://www.solutionsforwater.org/solutions/wwf-water-conventions-initiative. Wouters, Patricia, ‘An Assessment of Recent Developments in International Watercourses through the prism of the Substantive Rules Governing Water Allocation’, Natural Resources Journal 36/2 (1996), p. 417. Yamada, Chusei, ‘Codification of the Law of Transboundary Groundwaters’, available at www.aalco.int/yamada2007.pdf. ———, Fifth Report on Shared Natural Resources: Transboundary Aquifers, UN Doc. A/CN.4/591, 21 February 2008. Available at: http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/N08/249/11/PDF/N0824911.pdf?OpenElement.

8

Sovereignty and Equitable Utilization of International Waters. Some Examples in Central Asia, Africa and the Middle East

Remy L. de Jong INTRODUCTION A significant diversity usually exists in the nature and composition of the economies of the countries that constitute a large international drainage basin. This makes it difficult to create a common policy for the management and equitable development of the available water resources. Nevertheless, integrated management and development will require a certain amount of integration in the economies of the basin states in order to collectively optimize the productivity of the shared water resources. Those resources need to be exploited and utilized in a manner that minimizes competition and conflict and optimizes the outputs. Integration will require regional cooperation on several levels: . . .

A legal/institutional framework will be set up to accommodate the international complexities of basin development. A hydrologic unit will be established to coordinate collection of basic data to assess the quantity and quality of the water resources. Economic policies will be coordinated to ensure that not only water, but also the other resources in the region, will be allocated in an equitable and economically optimal manner.

In the chapter allocation tools will be examined, and an illustration of the impact that a choice of allocation parameters may have in a river basin with several disparate basin states will be formulated. Several examples of actual international situations that involve the sharing of water resources, all of which contain the seeds of potential sovereignty conflicts, will be given.

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ALLOCATION AS A BASIS FOR EQUITABLE UTILIZATION The concept of allocation The process of allocating or distributing some goods or resources does not usually present a major problem, particularly when the distributing entity occupies a position of authority, the recipients constitute a homogeneous group, and the resource is rather plentiful. This is the case within a nation with a strong central administration. However, those conditions may not be obtained in the case of water allocation in an international river basin. In such an environment ‘allocation’ could perhaps be described as ‘the distribution among several competing national interests of the rights to use certain quantities of water from a well-defined and limited transboundary resource’. Several potential problems appear on the horizon. The quantification or definition of a water resource is traditionally left in the hands of professional hydrologists or hydro geologists. Relying on a variety of instruments, observations of quantity and quality over a certain period of time provide a hydrologic record or database. For the record to be useful, it is expected to cover several decades, including the most likely extreme events. The record may be extended and strengthened by means of certain statistical techniques, correlation with meteorological data, and a detailed analysis of the watershed properties as these data may have been modified over time. Interesting results in terms of extending historical records have been reached by means of tree-ring studies. Despite this, many hydrologic records are subject to uncertainty because there is no unanimity among potential users about the accuracy or reliability of the instrumentation or the observations. Moreover, in view of the almost uniformly accepted occurrence of changes in the global climate, there may be new uncertainties introduced in future rainfall events and water resources availability. The physical basis for water resources allocation is therefore not very well founded. Allocation objectives Perhaps more important is the fact that the potential recipients of the water resources are not necessarily in a cooperative state of mind, but rather intent on obtaining the best possible outcome from their perspective. This objective can be pursued during multi-party discussions or by presenting convincing arguments to an arbitrator, a court, or whatever mechanism has been made responsible for reaching an equitable and reasonable allocation formula. The objectives are not necessarily in conflict with each other, but the competitors may decide to put different weights on them. For example, a country that boasts a rich natural environment and enjoys a strong

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ecotourism sector may attach great significance to the allocation of adequate water resources to environmental protection and the maintenance of a permanent flow to sustain wildlife and natural flora. The criteria for allocation The problem with an allocation discussion is that there are several criteria that can be used as a basis for resource allocation. The choice of any one particular criterion, or a weighted selection thereof, may have the effect of giving one competing member state in an international drainage basin a major advantage. The choice of the allocation criteria is therefore of great importance, both on the national and the international level. THE INSTITUTIONAL FRAMEWORK National institutions It is rather common that national governments include a ministry or other executive body that has responsibility for water resources, but the precise functions vary. The latter usually include the maintenance of a database on the quantity and quality of the resources, and perhaps a coordinating role as far as water development projects are concerned. Modern societies have several identifiable sectors, some of which are vitally dependent on an adequate supply of water. The relevant ministries conceivably have mandates that give them certain priorities and obligations. Although sovereignty does not play a role, the entity charged with water resources management and allocation on the national level may find it difficult to satisfy all competing sectoral demands and it may have to call on a higher executive authority to reach and impose agreements. International institutions On the international level the basic tool is an international (bi- or multilateral) agreement or treaty between sovereign states. Many respected legal bodies and organizations have undertaken to formulate principles and objectives, but they tend to be very vague and merely informative without giving potential negotiators specific guidelines. The concept of ‘an equitable and reasonable use’ is widely accepted and most conventions, such as the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (UN 1997), also refer to environmental protection and the need to cooperate and consult, but guidelines for allocation negotiations are mostly absent. In fact, before the promulgation of the UN Convention there several regional institutions with the general objective of managing international

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drainage basins were already established. A survey was made of the existing conventions in Western Africa (Garane, Amidou 2008) to assess the relationships between the regional instruments and the UN Convention. It was found that the African Basin states occasionally overlooked some commonly-accepted objectives, while in some cases the local conventions devoted much attention to the use of rivers for international navigation. Allocation guidelines were always absent. Negotiations need to be undertaken in order to reach an agreement and in order to enhance the chances of success of such negotiations it is necessary that they be based on agreed-upon perceptions of: .

.

The hydrological framework and the extent of the water resources that are the subject of the negotiations. This requires an assessment of the surface water and/or groundwater resources in dispute. Since these resources are natural, and related to the vagaries of the climate, they should include an assessment of the risks and probabilities of occurrence, which may be influenced by climatic changes. The hydrological assessment is basically a technical and scientific exercise and it is unlikely to lead to many important disagreements or interpretations. The allocation criteria to be used in arriving at an acceptable pattern for sharing international water resources. The issue of selecting criteria is a very complicated one because it needs to rely on subjective assessments of priorities and objectives. In fact, the selection of the criteria may determine to a large extent the outcome of the subsequent negotiations. The choice of the ‘ground rules’ is very important.

The Southern African Development Community (SADC) is playing an active role in coordinating various public policies and it addressed the issue of shared water resources in a protocol (SADC 2000). This Revised Protocol on Shared Watercourses contains the following clause: ‘The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is an equitable and reasonable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.’ Although the protocol does not spell out many factors or criteria, the concept of giving different weights deserves recognition. In a multi-state basin corollary, agreements may be required to ensure that the benefits are equitably distributed over the basin to reflect the various conditions in hydrology, land, and population underlying the other criteria. Another complicating factor may be the anticipated mixture of consumptive and non-consumptive uses, with the latter including water use for power generation.

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CRITERIA ON THE NATIONAL LEVEL It is commonly recognized that water is an essential ingredient for promoting economic development. A brief history, one exception, and two parameters are presented below. The changing role of water Over the course of time, the role of water in relation to human development has gradually changed in line with technological advances, trade globalization and the modern trends in lifestyles. Today water is more often seen as an economic good. Perhaps the oldest backbone of any economy or culture was the agricultural sector, the segment that not only provided ‘food security’, but also the bulk of employment. Then came the industrial revolution, and with it a shift from the field to the factory. Even today the terms ‘rich’ or ‘developed’ are often associated with ‘industrialized’, and industrialization is still being considered by many governments to be the road to prosperity and social stability. Thereafter came the era of services, the sector that increasingly contributes to economic progress, based in part on the rapid development of computers and information technology. The nature of the ‘services’ differs substantially from one country to another; in the richer nations services support the transfers of money or knowledge and information. In other nations the transfers refer to people and products. In both cases there is no primary production of agricultural or industrial goods. It is relevant to the subject at hand to point out that, in terms of water use, this shift from production to services has resulted in a sharp drop in the amount of water needed to produce a unit output of economic growth. Domestic water use The use of water for the sustenance of life itself, primarily through a variety of domestic uses, is often discounted as making a contribution to the economic development of the community. There is no immediate financial benefit derived from keeping people healthy and alive. They do not make a measurable contribution to the country’s gross margin, in contrast to other sectors. Nevertheless, domestic water users are usually accorded top priority in water management, i.e. the allocation of water resources to water users. The reasons for this exception from the economic rule include religious, social, and traditional aspects. However, it is not up to the water management authorities to make life-or-death decisions. Moreover, maintaining a healthy domestic environment is a necessary condition for the development of other sectors of the economy. Whatever the reasons, it is generally accepted that the needs for water of humans and animals deserve first priority, regardless of their economic merits, and therefore this sector is considered an exception to the general economic argument for water allocation.

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The economic productivity of water Almost any economically-significant activity requires water to support it, and this resource can often be quantified in terms of cost. It is also normally possible to quantify to what extent that activity contributes to the public benefit by calculating its gross margin, the difference between its economic benefits and its production costs. This opens up the possibility of measuring the contribution of water to the economic process by dividing the output of the process by the amount of water used in achieving that output. Water productivity (WP) may be expressed as the ratio of gross margin over water use (WU), for a given quantity and time period of economic activity, i.e. WP5GM/WU. Its dimensions depend on both the monetary unit of the GM and the water quantity unit of the WU. An exercise was conducted to calculate water productivity values for various economically-productive sectors in Jordan by using published governmental statistics. The results are shown in Table 8.1. Although the data used for this illustration may not be strictly representative for all countries, the large discrepancies suggest that services and trade should be favoured in water-short nations. Water as an employment-generating tool In parallel to the measurement of economic productivity, it is also possible to measure the impact of water use on the socioeconomic wellbeing of the population. The latter may be expressed in terms of employment, and again it is normally possible to assess the labour intensity of various economic activities and compare that parameter with others used to carry out the activity. One such parameter is a simple division of the number of employees in a certain sector by the amount of water used by that sector, which may be called the employment water ratio. Again, a simple analysis of this parameter was conducted in Jordan and the results are shown in the last column of Table 8.1. Table 8.1.

Parameters for the economic value of water in Jordan

(1) Sectors of the economy Industry Services Trade Agriculture Agriculture Agriculture Agriculture Livestock

– – – –

(/2) Water productivity

(3) Empl./Water Ratio

711.90 14.59 483.71 0.19 0.32 0.28 0.29 995.22

48.34 6.81 105.94 6.01 82.92 426.00 328.83 1.71

Field crops Fruit trees Vegetables All crops

Source of data: Jordan government statistics

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ALLOCATION CRITERIA ON THE INTERNATIONAL LEVEL Population Possibly the most obvious criterion for water resource allocation is the size of the population of the competing nations to be served. The negotiators will attempt, as a minimum, to obtain agreement on an allocation of water to be delivered to their water supply utility companies such that they will be able to meet the domestic and sanitary needs of the population. Detailed guidelines for the calculation of municipal water requirements were published by the World Health Organization (WHO 2005), while other development assistance entities produced similar guidelines (WASH 2007). While negotiators may be tempted to merely use the product of population and minimum requirement as a basis for a claim, the issue is more complex. The utility companies that supply the essential water to meet domestic needs also have many industrial and commercial water customers who cannot use the survival argument. Moreover, many utilities are themselves major ‘users’ of water to account for exorbitant leaks and uncontrolled water usage in the operation and maintenance of the utility company’s facilities. Such losses have been observed to range from 8 per cent to more than 50 per cent of the water being processed for municipal delivery. Negotiators of populous states may also attempt to refer to future populations, or to actual or potential land use. Sometimes claims on this basis take into account uses that do not yet exist, but that are likely to arise in the future. The latter are closely linked to population projections and they invite examination of population growth in more detail. In the world of high finance and investments it is recognized that good financial management is rewarded, usually by high returns and favourable access to new financial resources. Financial mismanagement results in losses, such as the need to face higher interest rates, and the need to absorb higher costs to support new activities. It is well established that population growth is no longer a natural phenomenon beyond human control. Different countries have employed various methods to manage the size of their populations. In the Middle Ages some rulers may have favoured population growth in support of agricultural development or military adventures. Even at present some societies that benefit from rapid development of natural resources may find it necessary to import manpower to close a technical education gap, but otherwise there do not appear to be any nations today pursuing a deliberate policy of population expansion. The serious threat of further global overpopulation is becoming all too clear to most people. With reference to the allocation of water resources, it is pertinent to raise the issue of ‘rewarding’ competing basin states with sparse water when it is clear that the perceived needs or demands are at least in part the result of poor or absent population management, as reflected in poor education, public awareness and family planning activities.

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In this context, it is helpful to review a study sponsored by the UN Food and Agriculture Organization (FAO) (FAO 1982). In line with its resource management activities, the FAO and its co-investigators have made an effort to determine the population-carrying capacity of several regions and developing countries. The basis for the study was an assessment of the local land, water, and climate resources and to calculate how many people such regions or countries would be able to support. Allowance was made for the application of basic irrigation techniques, without the benefit of high technology or massive imports of support materials. The study results are not very precise and are perhaps open to some modification, but they offer a simple numerical measure of overpopulation by dividing the actual population of a given country by the supportable population. For example, for the three major water users in the Nile River Basin, the results of such an exercise are: Ethiopia 84/2.54533.1; Egypt 81.3/1.14571.3; and Sudan 40.2/4.21510. Obviously, each of the three countries is overpopulated, but the situation in Egypt is about seven times as serious as in the Sudan, particularly since a large portion of the Egyptian population occupies the rather narrow Nile valley. In summary, the use of population data in support of water resources allocation claims must be carried out with care, because the figures obtained may be interpreted in several ways, depending on the views of the decision-maker about sound development policies. Hydrology The negotiating parties may claim water resources on the basis of the origin of the water, the geographic location of the first occurrence of the resource. Since water resources are usually generated in the higher portions of drainage basins, the upstream states are more likely to favour such claims. Such states may offer good opportunities for hydraulic power generation, but conditions for consumptive uses – particularly agriculture – are more favourable along a mature downstream river section. Thus, opportunities for fruitful negotiations present themselves. Hydrologic claims are a direct result of natural events, precipitation in various forms, and they may be called natural rights. Although allocation claims based on hydrology are easy to defend, negotiators should ensure that the hydrologic database is reliable and based on sound techniques. Moreover, the negotiated water resources must originate in the basin under discussion, a condition not always easily clarified. With reference to the Nile Basin, it is noted that Ethiopia’s tributaries supply about 86 per cent of the waters of the Nile. Regional statistics show that the Democratic Republic of Congo receives large amounts of rainfall, but only a very small portion of this resource contributes to the flow of the White Nile. Caution is called for in the determination of the contributions of each basin state.

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History Some negotiating parties may claim to have a right to certain water resources on the basis of historical usage of the water regardless of its origin or of the user state’s geographical position, vis-a `-vis the water source. In this connection the following quote is of interest: ‘Ancient Egypt has a natural historical right on the Nile River, and principles of its acquired rights have been a focal point of negotiations with upstream states. The fact that this right exists means that any perceived reduction of the Nile water supply to Egypt is tampering with its national security and thus could trigger potential conflict’ (Wiki 2007). Conversations with residents of Sudan and Egypt have confirmed that there is a widespread feeling that those countries have indeed some kind of ‘natural historical right’ to the Nile River, but when pressed for a legal basis the latter cannot be found and the issue of how such rights may have been acquired and thus exist is left open. Since water usage is frequently associated with more densely populated downstream areas, which also often receive less rainfall than the higher upstream areas, downstream states are inclined to use these claims based on prior appropriation grounds. In the course of the past century the fate of Nile water allocations has found its way into numerous treaties and agreements. Citizens of Sudan and Egypt are likely to draw attention to two legal instruments. Under the 7 May 1929 agreement between Egypt and Anglo-Egyptian Sudan, Egypt assumed the right to undertake Nile River-related projects without the consent of upper riparian states. The 1959 Nile Agreement between Sudan and Egypt for full control utilization of the Nile waters included clauses for estimates of the Nile River flow as it entered Egypt and a sharing of said flow between Sudan and Egypt. With a view to possible claims by the other riparian states, the two parties to this agreement assigned to themselves the authority to handle such claims. The latter did not recognize those agreements and entered into their own agreements covering only the upstream portion of the Nile Basin. In summary, it appears that there are no historic rights to any Nile Basin water supported by a basin-wide treaty or convention recognized by all basin states. Economic potential Modern societies are increasingly intertwined, and as a result of globalization many borders have lost their restrictive importance. Goods and people are freely interchanged and economic activities tend to favour those areas where human and natural resources are least expensive and most abundant. With this in mind it is feasible to concentrate on the economic merits of the uses made of the waters of any basin to be allocated, regardless of the location of the resources or of the users. The premise is that the allocations should optimize for mankind the economic return to be

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made on the water resources; the relative current or likely future economic performance of the various basin states will then provide indicators as to where the allocations should be directed. In practice such an approach would have to rely on a very homogeneous economic development policy framework that would involve major sovereignty concessions. AN ILLUSTRATION IN THE NILE BASIN It is obvious that the relative positions, strengths, and objectives of the basin states of the Nile River change depending on the type of criteria that is selected as a basis of negotiation. With those differences in mind, a simple exercise using public basic data will be used to show the impact of the choice of parameter on the final allocation outcome. Distribution based on population In spite of the dangers of putting too much emphasis on population statistics, one approach to water sharing is derived from a comparison of water allocation based on such population data. The results will primarily benefit the life-supporting function of water in the domestic and municipal sectors. Using fairly recent (2000) population data as the basic parameter, the water needs in that year were estimated and used as the basis for a Table 8.2.

Comparison in percentages of four distribution strategies

(1) Country

(2) SBD

(3) HBD

(4) PBD

(5) EBD

Burundi Egypt Eritrea Ethiopia Kenya Rwanda Sudan Tanzania Uganda Democratic Republic Congo

0.26 0.44 n.a. 7.96 1.15 0.45 2.15 5.53 5.09 76.97

0.11 67.44 n.a. 2.32 1.20 0.16 26.65 0.92 0.36 0.83

0.12 64.28 n.a. 2.60 1.35 0.17 29.12 1.02 0.41 0.93

13.65 20.63 n.a. 9.17 13.36 15.12 11.98 8.34 7.75 n.a.

Notes: 1. Source of data: Human Development Report (UNDP, New York, 1995). 2. Data for Eritrea are included under Ethiopia. SBD5Source-based distribution HBD5History-based distribution PBD5Population-based distribution EBD5Economics-based distribution

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proposed sharing formula in percentages of the available resource as shown in column four of Table 8.2. Those values should be adjusted to account for different rates of population growth and for a decrease in the Sudan factor with the emergence of South Sudan as a new state in the region. Distribution based on hydrology This exercise is centred on the origin of the water resources, reflected in part by the relative land areas, but also by the renewable water resources available in each territory. Column two of Table 8.2 represents a sharing formula based on the availability of those resources. It is noted that this column is not accurately based on the hydrologic system of the Nile River. Some central African countries in that basin, particularly the Democratic Republic of Congo, derive much of their renewable water resources from many other sources thus significantly distorting the ‘country share’ formula reflected in column two. Nevertheless, taking that obvious exception into account, a general distribution pattern based on the sources of the Nile water can be derived from this column. In particular, it strengthens claims by Ethiopia against its downstream competitors. Distribution based on history An allocation on the basis of historical water use would more closely follow the pattern of existing freshwater withdrawals and uses. A distribution on the basis of such existing uses is shown in column three of Table 8.2. It is of interest to note that the freshwater withdrawals per capita are remarkably similar in all of the humid basin states, but they sharply increase in the drier nations, where irrigated agriculture constitutes an important backbone of the economies. The statistics used for this calculation should be viewed with some scepticism, because even in humid climatic regions there may be much more ‘fresh water use’, which escapes monitoring because it is done in a casual and informal manner, directly from the (ample) freshwater resources. In the drier regions formal diversion methods are normally required, which are reflected in the official statistics on water use and abstraction. It is clear that there is a strong correlation between the historical and the population approaches. This suggests that there has been a steady development in both the population growth of the nations involved and in the uses to which those populations have put their water resources. Although freshwater withdrawals may be thought of as being made primarily for domestic and personal uses, the link between domestic water use and use for irrigated agriculture is strong, in particular when that agriculture is practiced to meet the immediate economic needs of the families involved. Much of the Egyptian agriculture is aimed at satisfying domestic needs. The

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Sudan, in contrast, is actively developing large irrigation schemes with a view towards exporting the produce to the Middle East. Distribution based on economic potential Another intriguing scenario is to envisage a sharing formula based on the respective economic performances of the parties, at least as far as their utilization of the water resources is concerned. As discussed earlier, that utilization can, for instance, be expressed in terms of ‘water productivity’ or of the ‘employment water ratio’. The result of a rather crude approximation of such a sharing formula is shown in column five of Table 8.2. These estimates are based on the 1992 gross domestic product values in the basin states as well as the contributions of three major sectors. In order to make a comparison between economies, the weights of those sectors were incorporated in an aggregate water productivity, which was calculated by giving weights to three sectors that make major contributions to any nation’s gross domestic products. Those weights were taken from column three, lines one, two and seven of Table 8.1. This parameter may be seen as an indicator of progress in a modern society. The score for Egypt is the largest, possibly because its economy has major components related to tourism, the production of movies for the Arab world, and serving as a base for international private companies and public institutions. EXAMPLES OF EQUITABLE DEVELOPMENT PROJECTS OF INTERNATIONAL WATERS Virtually any substantial surface water basin or groundwater aquifer system has an international or transboundary characteristic. This condition has been enhanced by the fact that recently in several parts of the world new nations have come into being, thus presenting new sovereignty challenges. The examples given below illustrate the scope and nature of international issues that will require a resolution when transboundary water resources development is contemplated. This material is based on first-hand experience updated by consultation of public records. The Amu Darya This river rises in the mountains of northern Afghanistan from where it flows through Central Asia to the Aral Sea. The drainage basin includes parts of Tajikistan, Turkmenistan, Uzbekistan, Afghanistan, and Iran. From the perspective of transboundary water resources management, including the potential of sovereignty conflicts, the history of this basin is peculiar.

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During recent history, the Central Asia republics were constituents of the Soviet Union and as such the various water demands were met by means of domestic Soviet allocation decisions. This management pattern supported the large Soviet irrigation schemes that made Central Asia a major production region for cotton and wheat. Besides domestic allocation decisions there was also an international agreement between the Soviet Union and Afghanistan dealing with water abstraction from the Amu Darya or its tributaries. The dissolution of the Soviet Union created jurisdictional confusion. There were no international treaties governing the sharing of the Amu Darya water resources among the newly independent basin states. At an early stage the relevant authorities agreed to abide by the most recent Soviet distributions, but soon discrepancies in the definitions of the needs appeared. There were differences in the growth rates in the municipal and industrial sectors of the basin states. Moreover, the need arose to rehabilitate or abandon the large irrigation systems within the framework of a free market and decisions concerning rehabilitations relied heavily on the guaranteed availability of irrigation water. The allocation process is further complicated by the fact that some countries have established claims to hydropower from existing dams. In order to resolve potential conflicts and arrive at acceptable compromises, the Central Asian nations established the Interstate Commission for Water Coordination with management responsibilities for both the Sur Darya and the Amu Darya, the two streams that nourish the Aral Sea. For the Amu Darya the relevant basin states (excluding Kazakhstan) established the Basin Water Management Association Amu Darya in Urgensh, Uzbekistan. This institution drafts annual allocation proposals and submits them to the Interstate Commission for Water Coordination for final approval. Additional institutional support in the area of regional water resources management is provided by the International Fund for Saving the Aral Sea, which enjoys good institutional relations with all relevant states. The unfinished business appears to be the adoption by all basin states of a comprehensive treaty to establish legally binding water allocations for all uses. The Limpopo River The Limpopo is the second largest river in Africa that drains to the Indian Ocean, after the Zambezi River. It rises in an arid environment in central southern Africa, which explains why in upper and middle reaches the flow is intermittent. For several kilometres the river constitutes the border between Botswana and South Africa. Historically there has been rather intensive agricultural development on the southern bank in South Africa, which depleted most of the intermittent flow. In order to expand production, the farmers on the northern Botswana bank expressed interest in diverting Limpopo River water. Extensive negotiations

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took place between the two countries, supported by extensive basic data collected and freely shared over the years by the authorities in South Africa. Engineering studies showed that water storage would be required, but adequate dam sites were not found. Hence, abstraction of surface water has continued on an ad-hoc basis. Reportedly, in the absence of a formal agreement the Botswana abstractions are reported to the local water management area, part of South Africa managed by a water board. Reportedly no formal international allocation agreement exists. The Blue Nile This river rises in the highlands of Ethiopia and may be said to terminate in Khartoum, Sudan, where it joins the White Nile to form the Nile. The basin states of the Blue Nile are Eritrea, Ethiopia, and Sudan. The hydrological importance of the Blue Nile derives from the fact that, together with the adjacent Atbara River, the Ethiopian highlands provide more than 90 per cent of the water resources of the lower Nile. The populations of Egypt and Ethiopia are comparable in size. However, whereas Egypt has historically relied on the Nile for practically all its economic activities, Ethiopia has not yet developed the same intensive agricultural practices as those used in the lower Nile valley. This may be changing as the Ethiopian government is pursuing development projects on its territory to enhance power supply and agricultural production. In view of the difficulties involved in reaching a basin-wide agreement among the 10 nations in the Nile Basin, the idea has been mentioned by local experts to pursue a water resources management treaty for the Blue Nile Basin only. This would incorporate allocations for the foreseeable developments in Ethiopia as well as adequate supplies for the projects associated with the Roseires, Sennar and Merowe dams in Sudan. Oman, United Arab Emirates Al Buraymi is an oasis town in north-eastern Oman, on the border of the United Arab Emirates. An adjacent city on the United Arab Emirates side of the border is Al Ain. The surrounding landscape of Buraymi differs from that of Al Ain, consisting mainly of wide-open gravel plains and sharp jutting rocks, the eastern terminus of a mountain range in Oman. Precipitation on the mountainous Oman side of the border is very modest, but it recharges the aquifer underlying the international municipal development area encompassing Al Buraymi and Al Ain. Historically the aquifer recharge was adequate to meet the local water demands, but the increased urban development, primarily in Al Ain, meant that there were rapidly increasing groundwater withdrawals in the United Arab Emirates of water originating in Oman. Irritation arose from this transboundary water withdrawal and studies were conducted in the pursuit of alternative local water resources.

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After extensive research it was decided that Al Ain would be supplied with desalinated water from the Arabian Gulf. The Yarmouk River This river rises in the south-eastern mountains of Syria and flows westward. It constitutes the border between Syria and Jordan over a distance of about 40 km and thereafter briefly separates Jordan from Israel before discharging remaining water into the Jordan River. Utilizing favourable geography, a dam – the Al-Wehda Dam (Unity Dam) – was built in accordance with allocation and operation rules decided in 1987. The primary objectives were to provide Jordan with water for both human consumption in its northern municipalities and to safeguard agricultural development in the border region; and to strengthen the power supplies to Syria. Issues involving sovereignty have arisen. Jordan is pursuing with increasing urgency claims about Syrian violations of the water-sharing agreement concerning storage in the Al-Wehda Dam and exploitation of the Yarmouk River. More particularly, it is argued that since the agreement was signed, the number of Syrian dams in Yarmouk tributaries has increased from 26 to 48, while around 3,500 wells were drilled to pump water from the river basin. The groundwater in the basin is the source of the springs that feed the Yarmouk River. As more wells are drilled, less water flows to the reservoir. Syrian arguments tend to deny that there are links and that Syria has sovereignty over its domestic water resources. In view of virtual civil war conditions in Syria, it is unlikely that the issues involved will be resolved soon. The Jordan River This river rises in a tri-country region covering portions of Syria, Lebanon, and Israel. It flows southward along the alignment of the Jordan Rift Valley and is usually seen as having two distinct parts. The upper Jordan receives water from several small tributaries and delivers water to Lake Tiberias (Sea of Galilee, Kinneret). This lake also receives some water from the Yarmouk River and it constitutes a major source of drinking water for Israel by means of the National Water Carrier built in 1964. The lower Jordan connects Lake Tiberias with the Dead Sea – a distance of about 80 km. There are very few natural inflows, but the King Abdullah Canal parallel to the river on the Jordanian side delivers irrigation water to many farms on the east bank of the river. The irrigation return flows reach the Lower Jordan, and as a result the water that reaches the Dead Sea is of a very poor quality as it is debilitated by municipal, industrial, and agricultural wastes from east and west bank settlements. Although all river basins are international in nature, the political conditions have discouraged international cooperation. However, in late 2012 Israel and Jordan indicated that they intended to make efforts to clean

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up the Jordan River. This intention is at least in part based on the fact that both countries make fairly intensive commercial use of the Dead Sea and the combination of a dropping water level ands a qualitative deterioration has a serious negative financial impact. The Wadi Araba valley From the perspective of management of international water resources in order to achieve an equitable use that will meet reasonable demands, the situation in Wadi Araba is quite exceptional. The conditions are in fact international, but there are not yet any resources or uses. The water level of the Dead Sea is about 450 m below sea level and falling. The basic concept that has been discussed over many years consists of a scheme to divert seawater from the Mediterranean or from the Red Sea near Aqaba, Jordan, to the Dead Sea. The difference in elevation could serve as a source of energy while the Dead Sea would be replenished. Several alignments are feasible either across Israel or along Wadi Araba, the valley that constitutes the border between Jordan and Israel. The discussions about the various alternatives are not centred on sovereignty issues, but on the extremely complicated environmental, historical and archaeological impacts that would result from the adoption of any of the proposed schemes to create in the Wadi Araba an international water resources development prurient. Moreover, any alternative scheme would require a substantial investment with a rather small and extended return. Although at first glance the idea of replenishing a shrinking water body seems attractive, restoring the Dead Sea would involve flooding coastal areas and reducing the salinity. Parts of the shoreline were developed commercially, while in other areas the receding water level has revealed areas of major archaeological interest that have not yet been researched. The salinity of the Dead Sea has given rise to an active usage for the control of certain skin diseases and a noticeable reduction in the saline concentration would endanger such medical benefits. Perhaps the major archaeological objections are those that have already arisen in connection with any construction activities that would be required in this region, the well-recognized heartland of all major religions. To date the Red-Dead project has not proceeded beyond the concept stage. Various political and financial authorities have declared the project to be feasible, but it has not yet been given the highest priority by the basin states that would receive the greatest benefits. The Disi aquifer The Amman district in Jordan incorporates the capital and numerous suburbs together with facilities for thousands of refugees from Palestine, Iraq and Syria. Water demand for municipal purposes has increased

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dramatically and there are no obvious water resources. The Jordan River is relatively close, but its discharge is negligible and the quality is poor. Non-revenue water is a serious problem in Amman. Currently, 40 per cent of water in Amman is lost as non-revenue water. The city rations water, with individual residents averaging 36 hours of water service weekly. There is a significant reservoir of fossil water known in Jordan as the Disi Aquifer, which has for many years supplied drinking water to towns in southern Jordan, including the port city of Aqaba. The challenge is to supply water for domestic and industrial uses in the urban areas of Amman and the adjacent city Zarqa that together provide residences for more than half of the population of Jordan. Several options exist to meet this challenge. Option 1 would involve construction of a storage reservoir on the Yarmouk River that separates Jordan from Syria. In terms of water availability and distance the option is fairly attractive, but progress has been hampered by sovereignty conflicts between the two riparian states. Moreover, Israel has reportedly been successful in discouraging funding by international entities. Option 2 could involve exploitation of the Dead Sea. However, the water level has already dropped substantially and sovereignty conflicts might arise with Israel and the cost of desalination would make the water very expensive. Option 3 considers the use of the Red Sea that already supplies the city of Aqaba. However, supplying the Amman area with desalted water transported over a large distance would raise the cost to an unaffordable level. Option 4 is a link between the Red Sea and the Dead Sea through the Wadi Araba valley. Power generated by the elevation difference could be used to desalinate Red Sea water, but since the valley separates two states sovereignty problems concerning the anticipated benefits are likely to arise. Option 5 involves exploitation of the Disi aquifer that contains a large reserve of fossil groundwater underneath southeast Jordan and northwest Saudi Arabia. Construction of a conveyor to Amman would need to consider protection or avoidance of more than 300 archeological sites, while sovereignty problems would arise from depletion of the international water resource.

The management of Jordan’s water resources is distributed over several Ministries and Authorities and also requires consideration of the demands of neighboring states. It is obvious that Jordan, with limited financial resources, faces critical choices in view of the local institutional and hydrological complexities. Several factors cause delays in any project; here the factor is the fact that water would need to be pumped uphill over a distance of more than 300 km. Moreover, it has become clear that the technically preferred route would disturb many historical sites of potentially great archaeological value. Finally, the projected cost was discouraging. The Disi Water Conveyance project was first proposed in the 1990s, but was initially regarded as too expensive. It was not until 2007 that the

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Jordanian government contracted a firm to begin construction, which was scheduled to be completed in 2013. The issue of sovereignty has arisen because the Disi Water Conveyance Project relies on a transboundary water resource. Only a small portion of the Disi aquifer lies beneath Jordan, while the majority lies beneath Saudi Arabia, which also extracts water from the aquifer (locally known as the Saq). The aquifer has created controversy between Saudi Arabia and Jordan, with each country demanding the other to use less of the shared water. There is no formal agreement between the countries regarding the water and the Disi Water Conveyance Project is being constructed without Saudi consultation or involvement. The Songwe River One of the tributaries of Lake Malawi is the Songwe River, a fairly small stream that constitutes a portion of the boundary between Malawi and Tanzania. The flow in the stream is variable and allows only for occasional resource use that covers fisheries and periodic diversion of water for irrigation. Nevertheless, the total volume of discharged water may provide enough hydraulic energy to satisfy local power demands or those of regional urban centers. In view of the flow variability of the Songwe River the location of the stream channel is not permanent and hence the location of the boundary between the two nations varies with the seasons. Particularly in the rainy season the Songwe River changes alignment from time to time and at the same time it enhances the predicament of determining the sovereignty over the residents in its drainage basin. The relevant authorities are considering the establishment of a binational water management body that will have executive powers over the economic development of the Songwe River drainage basin such that all residents will benefit from any commercial development of the resources in the basin. To date no solution has been found to resolve the problem of conflicting sovereignty claims in a drainage basin where the stream alignment is not permanent. CONCLUSION A framework for negotiations On the basis of the above exercises it is feasible to design a broad framework for negotiation, even before a final choice is made of the criteria or of the other ground rules. Although various allocation scenarios may offer different ways of interpreting history, the fact remains that negotiations will have to accept the situation that exists today. Consequently, a reliable database has to be constructed that will clearly identify the performances of the basin states in terms of the parameters that may be adopted as a basis for negotiation. The tables used earlier give

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indications of what those parameters could be, but they need to be quantified for the present time, and for the relevant basin only. An institutional framework Negotiations will require the establishment of an impartial entity, perhaps called a Basin Management Commission, which should represent not only all of the national governments of the basin states, but also the various regional authorities that will probably be more directly involved in the implementation of the local aspects of any basin-wide agreement, Moreover, the terms of reference of such a commission should spell out the need for participation of a broad segment of the respective stakeholders and a guarantee that all basin states will share all their hydrological and socioeconomic data as they pertain to the river basin. The institutional design should ensure that the commission has adequate freedom to carry out its business and that it is not subject to direct influence or control of any of the governments involved. This operating independence will contribute to its impartiality and thus enhance its chances of success. For the day-to-day operation of its affairs, the commission should be able to rely on a small professional secretariat, capable of generating the necessary background information and analyses to permit the commission to perform its tasks without undue delays. Alternative allocation targets It is clear that there are several meritorious approaches to selecting criteria for the allocation of shared international water resources. Each approach has its merits and at a very early stage the negotiators need to reach agreement on a framework that will recognize each nation’s particular problems and challenges. The database referred to above should assist the negotiators in reaching a compromise in defining the parameters that will form the basis of an eventual allocation formula. It will be necessary to give proper weights to those parameters, taking into account some economic development priorities that different parties may wish to pursue. Feasible scenarios for harmonious development Although the evolution of a sharing formula based strictly on an agreedupon set of parameters may appear to be a fairly simple and objective matter, several other factors are likely to play a decisive role in reaching a final agreement acceptable to all. An important objective of integrated development is to ensure that the overall resource is used in the best possible way to optimize the benefits to all basin states. The best scenario for country A or B may not be either the best scenario for country C, or for the complete group of basin states. Basin-wide scenarios and sharing

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formulas will therefore need to be compared with different combinations of country-specific scenarios in an. effort to reach an optimum combination of consumptive and non-consumptive uses of the water in the shared watershed. In some cases, the development projects in country A may benefit the citizens of country F, and solutions need to be found to have those citizens of country F pay for the work requested to be done for them in country A. There may be room for trade-offs, either in money or in water, to ensure that such cross-boundary cooperation is implemented. Recommendations In order to achieve optimum utilization of shared water resources it is recommended that the following steps be taken: .

.

. .

A negotiating body for the basin needs to be established with a mandate to develop a strategy aimed at optimizing the water resources for the benefit of all. The ground rules, including the choice of parameters to form the basis for an allocation formula, need to be agreed to by all relevant governments at an early moment. A strategy should be formulated, with hydrologically-significant and reliable allocations. An institutional framework needs to be defined to ensure the smooth implementation of the strategy including a mechanism to resolve conflicts and to incorporate up-to-date hydrological and socioeconomic data into the allocation mechanism.

REFERENCES Garane, Amidou, UN Watercourses Convention, Applicability and Relevance In West Africa, Amidou Garane, Consultant, March 2008. Southern African Development Community, Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) Region, Windhoek, Namibia (SADC, 2000). United Nations, United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, UN Doc. A/51/869, 21 May 1997, reprinted in 36 international legal materials (UN Convention). UN Food and Agriculture Organization, Technical Report Of Project Fpa/Int/513, Land Resources For Populations of the Future Potential Population Supporting Capacities of Lands in the Developing World, Food and Agriculture Organization of the United Nations, United Nations Fund For Population Activities, International Institute For Applied Systems Analysis, Rome, 1982. Water, Sanitation and Hygiene (WASH) helpdesk, 2007, http://washhelpdesk.blogs pot.fr/2007/02/basic-water-quantity.html, accessed 24 July 2014. World Health Organization, Regional Office for South-East Asia Mahatma Gandhi Marg, New Delhi, 110002, India, Technical Note No. 9, 2005.

9

Territory, Resource Rights and Rivers: A Philosophical Case for Overlapping Jurisdiction

Cara Nine INTRODUCTION Territory (terra-tory) is about controlling politically a region of earth. Sociologists and political geographers look at territory as a historical feature of our political landscape. They investigate how actual territories are formed, what they consist of, and how they are maintained (Sack 1986). Philosophical inquiries have a different target. They question the normative features of territory, asking about the moral justification of territorial rights. Who has moral standing to hold a territorial right? What morally justifies political control over resources? If a group has a territorial right, over which exact objects is that right held? The latter question motivates this chapter. One might wonder how high into the atmosphere a territorial right should extend, how deep underground, or how far out across the seas. One might also wonder whether territorial rights should include vast uninhabited areas, such as much of the Sahara Desert. A particularly tricky question probes the nature of territorial rights over rivers. Rivers create two puzzles for territorial rights. The first is metaphysical – a river is constant and yet is constantly changing. Far from merely a poetic muse, the river’s nature as both moving and geo-stationary causes numerous tensions between riparian states. The second puzzle is normative – given a river’s complex nature, can jurisdictional authority over it be divided coherently? The traditional concept of territorial rights entails two assumptions about their object. First, the object of territorial rights – what a group has a claim to – is defined by what lies between political lines on a map. Second, overlap of territorial jurisdictions is prohibited. Together these elements produce simple, bilateral borders. After a philosophical assessment of the appropriate object of territorial rights, it seems difficult to adopt either of these assumptions in the case of rivers. To describe a river as an object of territorial rights, it is useful to adopt an account of a river as a functional organism. As a functional organism, the moving and geo-stationary qualities

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of rivers are coherently understood as performing functions inherent to the river itself. On this account, however, jurisdictional authority over the river cannot be bilaterally divided between riparian states. A conclusion to draw is that incidents of territorial rights should extend over whole riparian regions; in circumstances where the riparian region falls between two or more states, these states should share jurisdictional authority over that region. Overlapping territorial jurisdictions are theoretically coherent and, perhaps, a practical improvement. WHY NOT OVERLAPPING BORDERS? Modern territorial states emerged from the Peace of Westphalia (1648), born from a motivation to diminish ethnic and religious struggles for power within Europe. The treaties politically aligned people with a sovereign territory, rather than with a religion (or some other personal allegiance), preventing those living in close proximity from perpetual political conflict. This shift departed from a feudal, property owner-to-tenant conception of territory towards a state-to-citizen relationship (Morris 1998). State borders were solidified around territories, making them less subject to frequent ‘property swaps’ between lords, and because political powers were prone to fight over control of people and resources, distinct borders were considered necessary to avoid conflict. In the twentieth century, the territorial state transformed. Marked by the end of colonialism after World War II, statehood became a matter of collective self-determination, rather than of rule by a sovereign (Cassese 1995: 48– 56). As is true of many historical political shifts, this one was supported by weighty normative considerations. From principles of equal respect for personal autonomy, the international community endorsed a strong right to self-rule. People within a territory should govern themselves, and, importantly, they should not be governed by a foreign power. Thus, knowing who has a legitimate say in political decisions within a territory is a prerequisite for exercising self-determination. To distinguish the foreign from the domestic, states reinforce the bilateral conception of borders. Territorial rights in rivers are justified along similar lines, yet encounter unique constraints and tensions. In order to maintain the cartographic stability of territories, rights over rivers derive from rights over river banks. If a state has rights over the banks abutting the river, then the state owns (enjoys the right to use) the water that is between those banks. In contrast with rights over land, rights over freshwater resources are subject to specific international constraints. As rivers are used as essential routes of travel and commerce, and because river water is often essential to the survival of surrounding communities, international law endorses an ‘equitable use’ principle. Under this principle, river-sharing states have a duty to recognize each other’s equitable claims to the use of river resources. Interpreting the

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equitable use principle involves the balancing of different use interests in the resource, while the ensuing obligations remain anchored in territorial sovereignty. Predictably, each state weighs its own interests more heavily than its neighbours, even to the point of declaring its interests matters of national security. This approach is ‘inherently confrontational and does little to promote cooperation in the common environmental interests of States’ (Brunnee & Toope 1994: 41). State borders should not overlap, it is argued, because bilateral borders prevent conflict over resources and support the independence of selfdetermining groups. Nevertheless, bilateral territorial division over shared resources can create predictable conflict, especially over riparian systems. The arguments below suggest that clearly defined regions of shared territories, rather than bilateral borders, may be more consistent with the spirit of peace and self-determination over territory. ADDING LAND TO POLITICAL LEGITIMACY: LOCKEAN THEORY APPLIED TO TERRITORIAL RIGHTS Even as ‘territory’ is a political construction regarding authority over people, it is also constituted in part by natural non-human objects. John Locke’s theory of property is often used in territorial rights literature to explain political authority over natural resources, because his ideas provide a preinstitutional theory of claims to goods. That is, in Lockean theory, claims to territory can be understood in the absence of political institutions that sanction those claims. This allows for the theory to criticize the politically sanctioned system of territorial rights and to give an account of rights that do not merely appeal to political treaties.1 A justification of territorial rights must explain why a group has the right to self-rule over non-human objects, and Lockean principles provide a generalized, adaptable theory to this end. Unfortunately theories of territorial rights based on Lockean principles tend to amplify the importance and confusion surrounding the object of territorial rights. Since Lockean theory requires the agent and the object to be distinct entities, an account of the object is necessary, and it must be distinct from an account of the people. John Locke argued that persons could acquire rights over goods by having certain interactions with those goods. Not just any interaction will do – the interaction has to be value-generating. When a person invests her labor in the land, the land becomes more valuable. The owner of the labor deserves the product of her labour, because it is her labour that made the product valuable (Locke 2003: 112). Applied to territory: if a territory is made more valuable by a group, then that group has a claim to the territory (Nine 2012: 81–84). A group acquires a territorial right by mixing itself with particular resources, including agricultural land, aquifers, mountains, valleys and minerals. The geographical location of these resources fixes the

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territorial right on the map; the group claims territory over those specific lands, aquifers and minerals, and not over similar resources in a different location. Of central concern in the evaluation of this principle is the definition of value. Which values give rise to a territorial right? Three options are defended: material value, symbolic value, and the value of justice. David Miller convincingly defends territorial rights as based on material and symbolic values. A group can be a unique author of territory’s material value in several ways. The governance of land use creates stable systems of agriculture and other forms of production, producing value from resources. Much of the value of the land is due to the coordinated efforts under the guidance of social and political institutions, such as cross-generational technological advances and conservation efforts coordinated by communities and enforced by rule of law. These actions engender beneficial material results ranging from real estate value to the fundamental values of providing food, clothing and shelter to individuals. Symbolic value, by contrast, picks out the cultural, religious, or social meanings that a group attributes to certain places or features. The site of a historical battle, the sacred river and the mythological skyline illustrate the symbolic meaning of territory (Miller 2012). Symbolic value emerges out of deep connections – the group’s values and ways of life are shaped by the territory, and the territory, in concord, reflects them. Through these connections, the territory becomes an emblem of the group itself, representing its identity and culture. Taken together, material and symbolic values support a group’s claim to certain resources. Territorial rights are primarily jurisdictional rights to enforce the rule of law within and over a region. These jurisdictional rights necessarily include powers to legislate, adjudicate and enforce rights over resources (land, water, minerals, etc.), because the coordination of activities over these resources is the key task for creating the rule of law. Although material and symbolic value do not directly justify a claim to jurisdictional authority, they may indirectly do so. If a group has added value to territory, its continued enjoyment of the value it has created will always be insecure unless the territory is controlled by political institutions that represent the group. Rights of private property alone will not serve because (1) such rights are always susceptible to being redrawn by whoever holds rights of jurisdiction and (2) much of the embodied value that the group has created is likely to be located in public space. The group needs to maintain overall control over the territory in order to secure that value over time. (Miller 2012: 263)

On Miller’s theory, territorial rights can be justified indirectly over particular resources, because jurisdictional authority is necessary to secure group claims to the material and symbolic values embodied there.

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The third conception of value – the value of justice – directly justifies territorial rights. On this view, territorial rights are functional rights; a group acquires a territorial right if and only if they demonstrate the capacity to achieve just rule of law. When the group uses the resources within that territory to achieve the value of justice, a right is acquired over a particular territory. Understanding the function of territorial rights highlights a counterargument against the above account based on material and symbolic value. An unjust nation may create symbolic and material value through jurisdictional control over a territory. In fact, great injustice often embeds heightened symbolic value in the place of that injustice. Granting a group the right to rule a region because it has created symbolic value through unjust acts subverts the function of territorial rights, that is, to rule justly. By contrast, the value of justice is created only by those groups that use the resources within a region to rule legitimately. The function of a territorial right is the establishment of the legitimate rule of law, so when a group interacts with territorial resources to create just institutions, it comes to deserve a territorial right over those resources (Nine 2008). On each of these accounts of value, the theory emphasizes that an agent works on an object creating value. What exactly this object is remains unspecified. Two immediate, interconnected problems arise: geographical dispersion and overlap. Geographical dispersion occurs when a group interacts with more and less than is marked between lines on a map. National forest cultivation projects, for example, purify air that spreads beyond national borders. Overlap occurs when two or more groups simultaneously create value in the same object. Border towns, for example, create areas of dense multi-group interaction with their environment. A combination of dispersion and overlap is found in rivers. Rivers disperse the objects of labour through flow and erosion, and they also mix the objects of downand cross-stream labour. It seems that, on Lockean accounts, the object of territorial rights might not be ‘territorial’ – it might not be containable within a geographical region. A better understanding the object of territorial rights may ameliorate confusion about the application of territorial rights theory in these cases. If the object of territorial rights is not susceptible to dispersion or to overlap, then theories have a ready solution for these problems. THE OBJECT OF TERRITORIAL RIGHTS Territory, by definition, refers to a geographical region. Consequently, ‘geographical region’ provides a starting point for this investigation. If the key object of a territorial right is some conception a geographical region, then the investigation of this object requires us to answer two questions: what is a ‘region’? and, what justifies a territorial right over a region? In a

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successful account, the conception of ‘region’ in both answers should be identical to each other; territorial rights should be held over a region as identified by the answer to the first question. Second, the answer to each question should be, to a certain extent, forthcoming without reference to the answer to the other question. In order for our conception of the region to help us better understand the pre-institutional contours of territorial rights, the region should be independently identifiable. On the traditional account of the object of territorial rights, the ‘region’, refers to what lies between political lines on a map. This account fails the second test – the account of the ‘region’ is not distinct from the account of the territorial right. Rather, the account of the region is defined by the right. This answer only provides a circular definition of the object of territorial rights, and one that does not provide any traction to analyse the territorial object itself (Brilmayer 1989). A second attempt may refer to the particular resources that lie within a region, defining a ‘region’ as an aggregation of those resources. On Lockean theory, an agent acquires a special right to an object by labouring on that object, producing from it greater value. And in fact, people labour on particular resources rather than on an abstract region. As Lockean theory grants rights over what is actually worked on, defining a region as an aggregate of worked-on resources is appealing. The geographical location of these resources fixes the territorial right on the map; the group claims territorial rights over specifically located soil, aquifers and minerals, and not over similar resources in a different location. We tend to think of resources as stationary. Rocks, land, forests and water aquifers lie within a territory – they do not pick up and wander off. Or do they? Many essential resources migrate, such as soil, minerals, water, pollen and animals. They are washed downstream, transported by wind, or move of their own accord. According to traditional Lockean property theory, labour gives rise to rights in non-stationary goods, such as animals and wind-swept pollen. Thus a consistent application of Lockean territorial rights over particular resources is worrying, because territorial rights in non-stationary objects disperses sovereignty. Rather than supporting neat geographical borders, it mixes territories like pollen in the wind. To put it simply, because Lockean rights are launched from interaction with particular resources, reducing the account of a ‘region’ to the aggregate of material resources within that region is susceptible to a reductio ad absurdum (the principles’ generalized implementation yields a result that effectively destroys those principles). Since Lockean claims are derived from interactions with particular objects, and because the same interactions that ground claims to stationary objects also ground claims to non-stationary objects, Lockean principles support claims of jurisdictional authority over non-stationary objects. As a result, defining ‘region’ as an aggregate of resources cannot sufficiently explain territory as a region with contiguous geographical coordinates.2 As this reductive understanding

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of ‘region’ undermines the territorial right itself, it seems insufficient to explain the object of territorial rights. Alternatively, perhaps we can identify a ‘region’ not by aggregating resources, but rather by the way that resources are used. A territorial region can refer to something more than merely the set of resources, namely the mutual and affective relationships that agents have with those resources. Literally place makers, we make a place into the kind of thing that it is, and our actions, practices and institutions greatly affect the material world and our experiences of that material world (Kolers 2009: 69). A territorial region therefore refers to the complex relationship that agents have with each other within a certain place as well as to the stuff that one finds in that place (such as land, air, oil, roads, houses, ecosystems, etc.). So understood, a ‘region’ is a compound object, not an aggregation. The region is identifiable as a site where interactions with resources are dense and mutuallyaffecting. For example, the extraction of a valuable mineral resource influences the adjacent employment structure, political institutions, location of settlements, use of land (away from agriculture towards mining), and overall environmental quality. On this compound object understanding, a group’s way of using a resource can include its subjective, non-instrumental use, including symbolic use as a national symbol or sacred religious site (Kolers 2012, Moore 2012). On the compound object conception, valuable interactions are not only with a set of particular objects. The group also interacts with a region holistically, and because a holistically considered region is a geo-stationary object, this account avoids the reductio. By interweaving these resources and created values, group interactions reveal a whole – a territory – with characteristics and values that are not reducible to its individual parts. Through the creation of value in the whole region, a group acquires territorial rights over the whole. Despite the switch in focus to compound – as opposed to individual – objects, Lockean principles of territorial rights continue to confuse the assumptions that territories do not overlap, because the object of territorial rights doest not obey cartographic lines. Examples are found in overlapping transborder and layered ‘regions’. First, border towns are ubiquitous examples of transborder sites of dense, mutually-affecting resource use. Since value-creating groups acquire territorial rights over a whole region, multiple groups acquire overlapping territorial rights over whole regions like border towns. Second, pockets of geographically thick non-nationals undermine traditional territorial claims by creating internal layered regions. Places like ‘German Town’, ‘China Town’, and ‘Little Havana’ can be found in almost every US city, many with unique economic, symbolic and institutional features. Dramatic examples of foreign involvement in developing countries seem to create new ‘regions’ inside of foreign states. China has built whole villages as well as environmentally-intense industries (such as mining and agriculture), social and economic

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infrastructure, and political institutions in many poor countries. These relations influence most of the areas’ environmental interactions, producing Chinese regions inside developing states. Third, groups that track a migrating resource, such as fish or deer, create a roaming, layered region, following the path of the primary resource. Using the compound account of ‘region’, these examples of layered and overlapping regions seriously complicate unilateral territorial claims, because the object of territorial rights crosses traditional boundaries. The problem is that according to the compound object account of a region, groups interacting with a whole region acquire rights over the whole. When multiple groups interact with the whole, these groups share claims to the same whole region. Dividing the region between the groups is not initially warranted. To explain away this worry, a territorial rights theorist can appeal again to the analogy between territory and property. A person can hold property rights over parts of an object without owning the whole object. Two parties may each own half of a block of wood, for instance, without each owning the whole. The division of property rights between parties is often a matter of negotiation or is based on other secondary considerations. Likewise, territorial claims can be coherently divided between the various claimants, explaining how a territorial right can be held over half of a border town but not over the whole border town. It is common practice for states to divide rights over a whole region so that each state has a claim to only part of the whole. Regions may be artificially and legitimately divided between states for pragmatic reasons. RIVERS Rights over rivers are difficult to explain using the compound-object account of a ‘region’. Basically, a river is not divisible. To be clear: the river as a natural object is not divisible, and rights over a river are not coherently divisible between geographical river segments. A river cannot be physically divided like a wood block can be divided, and rights over a river cannot be divided between geographical segments like rights over wood can be divided into rights over its left and right halves. To see why, we should revisit the problems facing attempts to identify the object of territorial rights raised above: that defining a ‘region’ as an aggregate of resources cannot sufficiently explain territory as having contiguous geographical coordinates, and that attempts to identify the object of territorial rights often reveal geographically overlapping objects. The reductio made us wary of assigning territorial rights over nonstationary objects. Responding to the reductio forced us to widen the concept of the object of territorial rights to compound objects of dense, mutually-affecting resource use. A river counts as a compound object in this sense because its constitutive materials and supporting structures are, by

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their nature, mutually affecting, and in their variety they are used expansively to multiple ends. Examples of mutually-affecting resource use in rivers include how fishing affects the plant growth and chemical balance of the water, how water use affects fish populations, and how different uses of riparian soils change river water quality and volume. Acknowledging the ways in which river use is mutually-affecting highlights the variety of riparian resource use. Fishing, riparian farming, mining, energy creation (dams), drinking, navigating, crossing, irrigating etc., each river affords robust, various use and each use affects the others. This brings us back to the reductio ad absurdum (the principles’ generalized implementation yields a result that effectively destroys those principles). River resources are not geo-stationary, and a river counts as an object of dense, mutually-affecting resource use. One group’s use of the river has intimate causal connections to numerous uses by other states across, down, and up stream. Yet in contrast with geo-stationary regions, rivers constantly move. A river heightens worries that territorial rights over a kind of region cannot be contained within a particular set of geographical coordinates, even if we think of a region as a compound object. Rights over an object will follow it as long as the object continues to have extensive causal connections with other resource use, as long as it still counts as the same ‘region’ under the compound object account. Effectively, given the non-stationary, intimate causal connections in disparate river use, territorial rights at any point on the river extend out to sea. Not only are we faced with the problem of dividing rights over a shared object, but also, in the case of rivers, we must figure out how to locate the object. One way to respond to this puzzle is to explain how a river can be geostationary. In fact, elements of rivers are geo-stationary. Rivers are drawn on maps, and the geographical path of a river does not change significantly over time. The challenge is to capture the features of a constantly moving object in these geo-stationary terms. Such a description is outlined below. Alas, the geo-stationary description of a river continues to resist the possibility of physically or politically dividing the river between states. The metaphysical question For a Lockean to give an adequate account of the object of territorial rights over rivers, there are two tasks: i) to explain how the object is geostationary (an account must describe how the object can persist in one place through time even though its constitutive elements move and are continually replaced); and ii) to explain how shared territorial rights over this object should be divided. In taking up the first task, it is productive to turn to Locke’s metaphysical philosophy in An Essay Concerning Human Understanding. Locke asks a similar question regarding the persistence of an object’s identity through time. How can a thing continue to be the same thing, even after its parts

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have changed? How can a particular tree continue to be that tree when its cells are continually shed and replaced? For Locke, persistent identity is explained by functional organization. A tree differs from its mass of matter, because the mass of matter changes – its parts constantly shed and are replaced. Yet the tree remains the same tree – it persists despite its changing composition, because its mass is constantly organized to maintain the life of the tree. The plant has ‘such an Organization of Parts in one coherent Body, partaking of one Common Life, it continues to be the same Plant, as long as it partakes of the same Life, though that Life be communicated to new Particles of Matter vitally united to the living Plant’ (Locke 1975: 2.27.4). The same rationalization explains the continuity of identity in animals and in functional objects like watches. A watch, says Locke, is a ‘Construction of Parts, to a certain end’, and even when those parts are ‘repair’d, increas’d, or diminish’d, by a constant Addition or Separation of insensible Parts’, the watch persists as the same object (2.27.5). The parts constitute the object, and the object is identifiable because of its parts. The parts comprise the object if and only if they exist together as a working organism, maintaining the function of the object. Replacement parts do not alter the identity of the whole as long as the new parts work towards its functional organization. This analysis explains how a river is geo-stationary. The water and its banks are part of an organized whole that maintains the river’s organizational function. Even though the river and river bank’s constitutive parts change (through soil erosion and the passage of water molecules), the functional organization of the mass remains the same. The river continues to feed, water and purify its surrounding environment because its banks and water flow have a set geographical location and path. In fact its geo-stationary features are what define its functions – it cannot water a surrounding environment without existing within that environment. As the river’s organization is geostationary, claims to the river are claims to a geostationary object. As further evidence that a river is a geo-stationary organism, for Locke, ‘existing’ refers not only to the object, but also to the idea of the object. We cannot have an idea of a river without banks, and vice versa. The river cannot exist without its geo-stationary banks, and the river banks cannot exist without the river. Additionally, our idea of this river, the Snake River, is inconceivable without placing it in its environmental/ geographical context. The idea of the Snake River is not an idea of the Snake River if it omits this geo-stationary content. Although Locke’s account of persistent identity in objects allows us to describe a river as geo-stationary, it also makes the job of territorial rights theorists more difficult by defining the object of a river as whole organization. So far we have described the river as necessarily including an account of both the banks of the river and the water flowing through those banks. This, however, is not a sufficient account of its functional parts. The river not only has banks, but it also has length. It runs from inland out to

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sea. It has an approximate depth, speed, and unique chemical composition (in water, soil and minerals). So, although a river can be described as a geostationary object, it is not amenable to physical division. That is, dividing a river into three parts does not create three rivers identical to three parts of the original whole. Dividing a river separates essential elements of the functional organism from the organism itself. Like stripping branches from a tree, the alienated parts contain qualities of the organism, but the branches are not trees themselves. Sever enough branches from the tree, and the tree ceases to exist. By contrast, an object without an organizational structure can be divided. A litre of water can be divided without loss of identity or of function – half a litre put in one glass and half in another. Rivers, however, are not identical to a volume of water. Upstream and a downstream are analogous to the higher and lower parts of a tree trunk. By extension, an upstream state and a downstream state should not consider the object of their territorial rights in the river to be amenable to natural division from the river’s other parts. An account of an appropriate division of rights over a river, then, must tell how states can hold unilateral territorial rights over only a part of a whole functional organism. The analogous task in property rights would be to explain how and why two people can each hold exclusive property rights over only half of a living object. The political question The concept of a river as a whole, functional organism complicates a traditional account of territory in two ways. First, it brings to the fore the problem of territorial overlap; multiple states may acquire territorial rights over the same whole river. Consequently, claimants must produce reasons for bilaterally dividing the river into territorial segments. Second, the nature of a river produces a new puzzle for the division of rights. Since a river is more like a living organism than a divisible mass, the interconnected functions of disparate parts of the river resist artificial division. Still, current wisdom holds that we should divide territorial rights over rivers bilaterally in order to preserve the self-determination of states and to avoid conflict over river resources. As justifications for bilateral borders are generally grounded in the importance of self-determination, it is useful to consider what is meant by self-determination. In order for a group to be self-determining, that group must be able to exercise a significant amount of autonomous authority over its members and territory. Yet while states are assumed to be capable of autonomous acts, they are also deeply engaged in interdependent relationships with foreign agents. Participation in global markets and in a global ecosystem creates circumstances of interdependence between all states, not to mention numerous other ways (cultural, political, etc.) in which states depend upon each other. These interdependent relationships are ubiquitous, unavoidable elements of global politics.

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Self-determination under these circumstances cannot be described as complete freedom from interference, because foreign factors inevitably influence domestic affairs. Instead, self-determination can be described helpfully as non-domination, where a group is not subject to the arbitrary will of another (Pettit 1996). Understood as non-domination, self-determination acknowledges that states operate under conditions of interdependence, and autonomy is defined in terms of the structuring of these interdependent relationships (Young 2007: 47). States are self-determining if they do not stand in a relation with other states where one state has the authority to interfere arbitrarily with the actions of the others. To make self-determination possible, international institutions must articulate and support a system of rights where states are protected from subjection to the arbitrary will of another. Obviously, this system cannot guarantee that domination will not occur; the system of rights is best if it supports the maximal pursuit of an agent’s ends without domination, even if that system cannot guarantee it. A system of territorial rights, therefore, is best if it supports the maximal pursuit of individual state’s ends, while that pursuit is maximally protected from arbitrary domination by other states. We have reason to prefer an alternative system of territorial rights over the traditional system if the former performs these functions better than the latter. As mentioned previously, traditional territorial and property rights over rivers derive from rights over the river banks and are subject to ‘fair usage’ constraints. These accounts of river property can be explained through an analogy to a water bucket. When you own a bucket (or property in river banks), the water in the bucket is yours because it is inside of your bucket. When it is not in the bucket, it is no longer yours. Qualifications are attached to this property right in water. Suppose that the water in my bucket comes directly from the overflow of water from your bucket. It is possible for you to use up all of your water, eliminating overflow and drying up my bucket. Given that your water use affects mine, your water rights are legitimately constrained: you can do whatever you want to your water when it is in your bucket, as long as your use doest not eliminate overflow into my bucket (or cause similar significant harm).3 The water bucket conception of river rights is common practice; it is used in international law and to articulate domestic property rights in rivers. The Colorado River Compact, for example, divides the Colorado River into two divisions (upper and lower) within the United States, and each division has a the right to control independently a 7.5 million acrefeet of river water annually – a large ‘bucket’ share of water (US Department of the Interior 2011). Despite its general use, this conception continually leads to confusion and conflict. Frequently an upstream state will claim that its interests (in state or national security for example) outweigh the interests of any downstream state. On this reasoning, upstream states argue that they can use their river resources without

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constraint, as long as those resources are in their ‘bucket’. Predictably, these unilateral assertions lead to conflict. Fortunately, these tensions can be attributed to failures in the water bucket conception, and the metaphysical analysis developed above can be used to reconstruct an account of rights over rivers avoiding the water bucket analogy. Given the foregoing metaphysical account of rivers and the compound object account of a territorial ‘region’, the water bucket conception misconstrues the nature of rivers as an object of territorial rights. As we have seen, the object of territorial rights is best understood as a geostationary region. A compound region is something more than its aggregate parts and is constituted by its dense, mutually-affecting use. The water bucket conception, by contrast, sees a river as an aggregate of its various geographical segments, with each group’s way of using the resource distinct from the others. This error in metaphysics confuses rights. With the water bucket conception, agents assume that they can exercise control over the water in their bucket, as long as it is there. But this is not the case. Down- or crossstream states cannot exercise unilateral jurisdictional control over their river segments. Jurisdictional control over a territory includes the powers to determine property rights in that region, including the power to designate zoning rights and to mark certain resources for special use (or preservation). A state may, for example, legislate the zoning of a section of riparian lands for agricultural development. As crops depend on specific chemical and water quantity and quality in the riparian soil, up- and crossstream use of the riparian region could make this agricultural development impossible. Successfully legislating property rights and zoning will depend on constant cooperation with other up and cross-stream states. Moreover, the nature of a river makes numerous unilateral state powers incoherent. The articulation of property rights in resources frequently depends on environmental factors. Property rights in land are often placed into different categories, including lands with river access and those without. Each category of property is subject to different legislation, such as conditions on sale and on use. If river use by other states changes the direction or flow of a river, for example, then a category of property may be made incoherent. Similarly, a state’s environmental protection legislation may allow for a one-time pollution ‘dumping’ into the river as long as the pollutant materials do not exceed a certain amount. If this amount of pollutant is already present in the water when it travels into the state, then the legislation is nullified. Similar examples can be found in legislation over fishing and other resource use. Fishing rights may be articulated in terms of equity – a commercial vessel has rights to no more than X amount of fish and no less than Y amount. The Y, minimal condition is to prevent other vessels from taking more than a fair share during times of scarcity. Obviously the coherency of this legislation depends on the fish population not falling below the equitable threshold. The point is that

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down- and cross-stream states cannot exercise vital unilateral jurisdictional authority over the riparian region without constant cooperation from up and cross-stream states. Now we can articulate why the water bucket conception of territorial rights over resources is flawed: it assumes that states can exercise their basic functions, exercising unilateral jurisdictional authority, over their ‘bucket’, their section of the river. In fact, states do not possess this power over their segment of a river. The water bucket system of rights does not acknowledge that rivers are compound regions identifiable as an object of territorial rights only as functional organisms. Riparian states cannot exercise their rights without the constant cooperation of other states. Without this cooperation, states are subject to the arbitrary will of other states. As this constitutes a system of rights that supports domination, it prevents the self-determination of down and cross-stream states. A better system of rights starts by acknowledging the nature of the river as a compound region and functional organism. Rather than existing as an aggregate of ‘buckets’, a whole riparian environment is instead like an animal. Perhaps, then, owning the southern half of a river is like owning the left half of a horse. Even though we cannot physically separate the halves of the horse, just as we cannot physically separate the halves of a river, we can articulate the division of particular rights over parts of the horse. I can plait my half of the horse’s mane however I choose. If the horse wins a race, we split the winnings equally. Certain rights, such as the right to a percentage of the profit received from the horse’s use, to access, and to make cosmetic changes to the horse can be coherently divided into rights that either party can unilaterally exercise. Nevertheless, key rights cannot be divided in this way. Importantly, it is impossible for each owner to unilaterally manage half of the horse. I cannot feed and train only the left half of the horse. If I want to train it as a racehorse, then I have to convince the other owners to do it with me, and we have to coordinate our efforts to this end. In this analogy, shared management is the only way for an agent to exercise its right to manage a portion of the horse. Similarly, shared jurisdictional authority is the best means for states to have the capacity to exercise jurisdictional powers over rivers. In summary, the nature of shared rivers makes it inevitable that one state’s resource use will have continuous, profound impacts on the capacity of down- and cross-stream states to exercise jurisdictional authority over river resources. This creates circumstances of domination, so river resources should be under shared jurisdictional authority in order for states to continue to be self-determining. This conclusion matches nicely with accounts of the Lockean values of territorial rights. Valuable interactions with a river can neither be achieved nor enjoyed with only unilateral control of one part of the river. To create material or symbolic value, the group needs to be able to exercise jurisdictional authority over the full riparian environment. Likewise, to use the river’s resources to secure justice in the area requires similar control.

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Thus territorial claims on Lockean theory should extend over the full river. The territorial claim – the claim to jurisdictional authority – is a claim to the entire riparian environment. Rather than thinking of these claims as conflicting, we should embrace them as claims to shared jurisdictional authority over the relevant object. REVISITING THE PROBLEM OF OVERLAP State borders should not overlap, it is traditionally held, because bilateral borders prevent conflict over resources and support the independence of self-determining groups. The above arguments suggest that the latter claim is not true. Taking the nature of a river and the interconnected relationships of river sharers into account, shared jurisdictional authority over rivers promotes self-determination better than its bilateral alternative. Still, the claim that bilateral borders prevent conflict over resources remains. There are three reasons to question this claim. First, bilateral borders over rivers may exacerbate conflict more than shared authority. Especially with the increased environmental vulnerability of states, rivers are crucial for fundamental state interests. The motivation to exploit river resources while they are within the state territory has in many areas become overwhelming. Several damming projects are already under way in Asia – threatening to eradicate downstream resources altogether, resources that states are willing to fight for. Emerging conflict from bilateral borders currently presents a significant threat to international security. Conflict may be initially avoided if states jointly rule riparian regions. At the very least a conversation about shared interests will take place between states, and unilateral decisions weighting of one state’s interests will not be allowed as part of the political procedure. Consequently, the exploration of shared sovereignty between riparian states is important in the efforts to maintain peace. Second, rather than arising from holistic ‘control’ over territory, conflict often comes from particular incidents of territorial authority. The foregoing proposal endorses shared jurisdictional authority over riparian resources. This shared sovereignty necessarily entails joint decision-making over the articulation of zoning, development, and property rights. It does not include, however, any claims about immigration/citizenship or rights of access. States may retain current citizenship/immigration policies and borders while exercising joint jurisdictional authority over resources. This distinction between shared and unshared powers may avoid potential cultural, nationalist, or ethnic conflict between citizenry. It may also avoid worries about massive mobilization of individuals from one state to another. Finally, there are many examples of peaceful jurisdictional overlap within and between states. The best example is of hierarchical self-determination within states, such as federal and municipal systems. The European Union

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is a prime example of regional self-determination, where French citizens have a limited say in what happens in Germany, and vice versa. Crossborder cooperation exists in the management of fish reserves in coastal waters and there is limited state cooperation over the management of shared rivers is mandated in international law. In short, cases of cooperation of self-determining units over shared territory already peacefully exists. The proposal supported in this chapter offers theoretical support to existing cases of territorial overla and calls for the institutionalization of shared sovereignty over river resources. While a specific form of institutionalization is not described here, several models for cooperation can be derived from these smaller-scale examples. To conclude, in the case of rivers, we have sufficient reason to reject traditional assumptions about the object of territorial rights: that the object is defined by what lies between political lines on a map and that the overlap of territorial jurisdictions is prohibited. Shared jurisdictional authority over riparian resources presents a coherent theoretical alternative to bilateral borders. Moreover, this alternative offers a better systemic approach to supporting rights of self-determination and international stability. Given that several diminutive models of shared sovereignty over resources already exist, there are good reasons to explore this option further in international law. NOTES 1 Theories that use collectivistic Lockean principles are Meisels 2009, Miller 2012, Nine 2012. For comparison, alternatives approaches include Moore 1997, Kolers 2009, Stilz 2011. 2 A coherent conception of a ‘region’ must have a sufficient density of contiguous coordinates. This is not to say that all of the geographical coordinates of a region must be contiguous. Hawaii is not contiguous with the continental US, for example. However, Hawaii is a unit with sufficient contiguous coordinates to be considered a geographical region. 3 This is an articulation of the Lockean ‘enough and as good’ proviso (Locke 2003: 114).

REFERENCES Brilmayer, L., ‘Consent, Contract, and Territory’, Minn. L. Rev., 74/1 (1989), pp. 11– 12. Brunnee, J., and Toope, S., ‘Environmental Security and Freshwater Resources: A Case for International Ecosystem Law’, in Yearbook of International Environmental Law, 5/1 (1994), pp. 41 –76. Cassese, A., Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995).

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Gans, C., A Just Zionism – On the Morality of the Jewish State (New York: Oxford University Press, 2008). ———, ‘Historical Rights: The Evaluation of Nationalist Claims to Sovereignty’, Political Theory, 29/1 (2001), pp. 58– 79. Kolers, A., ‘Justice, Territory and Natural Resources’, Political Studies, 60 (2012), pp. 269– 86. ———, Land, Conflict, and Justice (Cambridge: Cambridge University Press, 2009). Locke, J. (Nidditch, P.H. (ed.)), An Essay concerning Human Understanding (Oxford: Clarendon, 1975). ———, ‘The Second Treatise of Government’ In: Two Treatises of Government and A Letter Concerning Toleration (New Haven, CT: Yale University Press, 2003 [1690]). Meisels, T., Territorial Rights, 2nd ed. (The Netherlands: Springer, 2009). Miller, D., ‘Territorial Rights: Concept and Justification’, Political Studies, 60/2 (2010), pp. 252 – 68. Moore, M., ‘Natural Resources, Territorial Rights, and Global Distributive Justice’, Political Theory, 40/1 (2012), pp. 84– 107. ———, ‘On National Self-determination’, Political Studies, 45 (1997), pp. 900–13. Morris, C.W., An Essay on the Modern State (Cambridge: Cambridge University Press, 1998). Nine, C., ‘A Lockean Theory of Territory’, Political Studies, 58/1 (2008), pp. 148–65. ———, Global Justice and Territory (Oxford: Oxford University Press, 2012). Pettit, P., ‘Freedom as Antipower’, Ethics, 106/3 (1996), pp. 576 – 604. Sack, R., Human Territoriality: Its Theory and History (Cambridge: Cambridge University Press, 1986). Steiner, H., ‘May Lockean Doughnuts Have Holes? The Geometry of Territorial Jurisdiction: A Response to Nine’, Political Studies, 56/4 (2008), pp. 949 –56. Stilz, A., ‘Nations, States and Territory’, Ethics, 121/3 (2011), pp. 572 –601. US Department of the Interior Managing Water in the West (2011). Available at: http://www.usbr.gov/lc/region/pao/lawofrvr.html, accessed 15 October 2013. Young, I.M., Global Challenges: War, Self-Determination and Responsibility for Justice (Cambridge: Polity, 2011).

10

History and Status of the Community-of-Interests Doctrine

Flavia Rocha Loures* INTRODUCTION The effects of growing populations, climate change and economic development on water resources have made states more aware of the importance of sustainable water management, good governance and coordination across sectorial and political boundaries. In international watercourses, ‘maintaining harmony between nations sharing freshwater resources and providing for the equitable allocation of those resources while protecting ecosystems and water quality is one of the great challenges facing international law and institutions in the 21st Century’ (McCaffrey 2003: 65). But is current international water law, with equitable and reasonable use at its core, up to that challenge? Or would the recognition that cooperation among co-riparian countries is vital in their common pursuit of water security call for an even greater legal shift from state-centric views of absolute sovereignty to more accommodating approaches conducive to the joint management of freshwater systems as a whole? In this context, this chapter investigates the role and status of the community-of-interests doctrine, which emerges from the recognition that shared waters bring all the co-riparian states together as a community. A community can be defined as ‘the people with common interests living in a particular area’ (Merriam–Webster Online). Similarly, a community of interests would imply that the rights over an international watercourse were vested in a collective body of riparian states that participate jointly in the enjoyment of their shared resource. For legal and managerial purposes, therefore, an international watercourse should be considered as a hydrological unity. Considering an international watercourse as such would entail more than simply restricting the rights of riparian countries to develop and use the resource. Fully applying the notion of a community would mean that states – in protecting, developing, utilizing and managing the watershed – do so jointly, without regard for political borders (Dellapenna 1994:42, McCaffrey 2003: 148).

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Modern state practice, however, reflects the legal and political tension that still exists between the community-of-interests doctrine and the principle of territorial sovereignty. The doctrine has been embraced to varying degrees across the world, with good advances in Western Europe, building on its long history of fluvial navigation and high levels of pollution associated with industrial development. In general, interstate cooperation over water resources, even where superficial, has tempered the notion of territorial sovereignty in international water law. More often than not, freshwater is in constant movement as part of the hydrological cycle (McCaffrey 2003: 68). As such, shared freshwaters are subject to international law, which establishes the rights and obligations of states in their use, management and protection, thereby mitigating territorial sovereignty. In their ordinary interactions, states have accepted that sovereignty over international watercourses is not absolute and must be exercised within the limitations imposed by the rule of law. The issue that remains open pertains to the content and extent of such limitations, which would be more significant under the community-of-interests doctrine, if such a doctrine were to be fully endorsed by states. The chapter starts by looking at the community-of-interests doctrine from a historical perspective, as a legal theory in itself and within the context of the evolution of water law. The chapter then attempts to refine the notion of a community of interests, by reviewing and building on scholarly opinion to identify the various elements that, arguably, would characterize water cooperation as framed by that doctrine. Next, we consider how and to what extent international treaty law, case law and global policy have contributed to advancing the theory in question, or at least the various elements that integrate its normative content. The chapter concludes that the community-of-interests doctrine, even though not yet part of international customary water law, reinforces the duty of co-riparian states to cooperate on the equitable and sustainable use, management and protection of shared freshwaters. Furthermore, as countries become more interdependent, in the context of the ongoing global changes that contribute to water availability becoming more unpredictable, we see an increasing role for that doctrine to shape interstate relations towards addressing shared benefits, risks and opportunities related to transboundary waters. EVOLUTION OF THE COMMUNITY-OF-INTERESTS DOCTRINE AS A LEGAL THEORY Community of interests is a progressive theory in that it places significant limits upon states’ sovereignty over natural resources within their territory. As such, however, the doctrine is not a new concept in the history of water law. The idea of a community formed by those sharing a water body comes

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from Roman times, as expressed in the writings of Plato, Ovid and Virgil (McCaffrey 2003: 150). Dellapenna and Gupta note that ‘evidence of the earliest laws relating to water from each region reveal[s] a process of communal management [...]. The idea of sovereignty did not play a role in this period’ (2013: 8–9). In the 1660s, Grotius, referenced by McCaffrey, noted that a river, ‘viewed as running water, has remained common property, so that any one may drink or draw water from it’ (2001: 150). Specifically in the context of navigation on international watercourses, Roman law ‘treated rivers as rei publicae jure gentium and therefore accorded freedom of navigation to all’ (McCaffrey 2003: 59). However, ‘during the Middle Ages navigation was made subject to all sorts of harassments and fiscal measures which hindered developments’ (Caponera 2007: 208). In the 16th century, Grotius ‘[re]introduced the principle of freedom of innocent passage, i.e., the principle according to which rivers should be open for transit for legitimate purposes’. (Caponera 2007: 208) Based on this principle, numerous treaties were adopted between the 1600s and 1800s to govern the freedom of navigation. Building on this trend, in 1815, the Congress of Vienna culminated in the adoption of general articles spelling out, among other norms, what today are two recognized principles of international water law and which reflect the notion of a community of interests in an international watercourse: the regulation of navigation by common agreement and the freedom of navigation and commerce for all coriparian states (Caponera 2007: 209–10). More recently, the International Law Association (ILA) enunciated (1966: 468–9): The riparian states form a community-of-interests: one of them cannot possibly deal with navigation in its own territory, de facto or de jure, without affecting the interests of the others [...]. The international nature of the river does not merely impose restrictions on every riparian state but also positive collective duties [... . T]he common interests of navigation can only be secured if the regime is a uniform one and if this regime is governed with consideration for the interests of the entire territory of the river [...].

Throughout history, therefore, states have recognized that the benefits of free navigation outweigh concerns about sovereignty and the absolute control over international watercourses (Hildering 2004: 66). In more recent times, ‘navigation continued to hold sway over other uses until the late 19th and early 20th Centuries [...]. But from the mid-19th Century onward, the use of water for other purposes escalated markedly’ (McCaffrey 2003: 62–3). These changes in water needs have influenced the development of international water law from a body of rules concerned mainly with navigation to a broader, more complex set of norms dealing with multiple water uses, as well as the protection and management of international watercourses and their ecosystems. In Europe, this evolutionary legal process

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eventually led to the adoption of the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Water Convention) in 1992, which reflects the community-of-interests doctrine in many ways and is examined later in this chapter. Globally, states’ willingness to embrace the doctrine has been less encompassing. INTERNATIONAL WATER LAW: FROM ABSOLUTE CONTROL TO JOINT MANAGEMENT The long history of international disagreements over shared waters and the diversity of interpretations as to the applicable norms, more recently supplemented by sustainable development concerns, have been key driving forces in the evolution of international water law (Bogdanovic 2001: 3–4). In this section, we investigate how the legal basis for transboundary water cooperation beyond navigation has progressed from absolute claims founded upon territorial sovereignty to more nuanced approaches informed by the unity of an international watercourse and the need for collective action that emerges from that physical characteristic. As Hunter et al. explain (2002: 796–7): Four competing theories have dominated discussions over regulation of water rights among basin states: absolute [territorial] sovereignty, [absolute] territorial integrity, equitable utilization, and community-of-interests. Both [absolute] territorial sovereignty and territorial integrity have been largely abandoned as rules of decision [... . E]quitable use is the concept adopted by most efforts at codification [...]. The movement towards common or joint management [...] is not so much a legal requirement at this time as it is a trend in which transboundary water management is moving.

The theory of absolute territorial sovereignty conceives that a state holds complete control over natural resources within its territory and is free to decide on their use, regardless of any harm that may result to neighbouring nations. In relation to international watercourses, this theory has been favoured by upper riparian states, and finds its clearest expression in an 1895 opinion by the then US attorney-general. The case in point involved the diversion of the waters of the Rio Grande by that country and potential impacts on irrigation needs in Mexico. The opinion reads: The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory [...]. The immediate as well as the possible consequences of the right asserted by Mexico show that its recognition is entirely inconsistent with the sovereignty of the United States over its national domain [... . T]he rules, principles, and precedents of international law impose no liability or obligation upon the United States.

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Despite the extreme position expressed in that opinion, the two countries ended up adopting a specific agreement to settle the matter in an equitable manner (McCaffrey 2003: 115). In modern international law, absolute territorial sovereignty has been widely rejected for being incapable of solving disputes over shared freshwaters (ILA 1966: 486–7, Bogdanovic 2001: 180). In the context of interstate negotiations, however, upper riparians have invoked this theory as a bargaining tool, often to strengthen their positions in relation to weaker riparians (Hunter et al. 2001: 796–7). China, for example, when voting against the adoption of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC) at the UN General Assembly in 1997, underscored: ‘territorial sovereignty is a basic principle of international law. A watercourse state enjoys indisputable territorial sovereignty over those parts of international watercourses that flow through its territory. It is incomprehensible and regrettable that the draft Convention does not affirm this principle’ (UN Doc A/51/PV.99, p. 6). Downstream riparian states, in contrast, are more likely to invoke absolute territorial integrity. This latter doctrine purports that a state is entitled to the integrity of its territory, which includes the natural volume and quality of the waters flowing through it. This theory would impose on riparian states a supreme, unlimited and unconditional duty not to cause negative transboundary impacts through an international watercourse. A mitigated form of this so-called no-harm rule finds expression in the general duty of transboundary harm prevention, as codified in Article 7 of the UNWC. As with absolute territorial sovereignty, territorial integrity, in its extreme form, cannot be seen as part of international customary water law. A good illustration of the inappropriateness of applying those two extreme views to water bodies shared across political borders, invoked here by analogy, comes from a US Supreme Court decision on water allocation between two states (New Jersey v. New York, pp. 342–3): New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower states could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both states have real and substantial interests in the river that must be reconciled [...].

It is against this background that the theory of limited territorial sovereignty emerges as a compromise between those two radical claims, with a view to balancing the interests of all riparian states and ensuring that such states exercise their rights in accordance with the applicable legal limitations (Hunter et al. 2001: 798–9, McCaffrey 2003: 149). In this sense,

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‘each state must respect the rights of the other’ (McCaffrey 2003: 138). Limited territorial sovereignty encompasses the no-harm rule in its more nuanced form, i.e., that of a state’s due diligence duty to prevent significant transboundary harm when utilizing an international watercourse. Limited territorial sovereignty is widely reflected in state practice and, within the framework of this theory, international water law has been evolving since the early 1900s (McCaffrey 2003: 149). Eventually, state practice, scholarly opinions, proposed codifications and case law led to the formulation and enunciation of the principle of equitable and reasonable use in the 1966 Helsinki Rules on the Uses of the Waters of International Rivers (Helsinki Rules). According to Article IV of those Rules, ‘each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin’. Equitable and reasonable use is widely recognized as a rule of customary international law and the fundamental norm governing the nonnavigational uses of international watercourses (Dellapenna 2001: 276, Hunter et al. 2001: 800, Kiss & Shelton 2004: 181). In essence, the principle of equitable and reasonable utilization requires that a dynamic state of fairness be maintained among states sharing water resources, through an ongoing process of assessment of, and adjustment to, all relevant environmental, social and economic factors. Equitable use does not mean that ‘each state receives equal rights, but rather that all states sharing a watercourse have equitable rights of sovereignty over the resource, and their interests must be reasonably balanced according to a range of factors’ (Hunter 2001: 799–800). In its turn, the community-of-interests doctrine reaches back to notions of Natural Law and, as mentioned above, finds its origins in the consideration of water resources as res communis, not subject to private appropriation or free disposition. At the domestic level, this understanding is in consonance, for example, with the Brazilian Constitution, which determines that all inland waters are public property and considers the ecologically balanced environment an asset of common use (Articles 20 (III), 25(1), 225). When it comes to international law, the theory derives from the need to respond fully to the hydrological unity that characterizes a water system, as a result of which co-riparian states become interdependent, not only physically, but also often politically, culturally, socially and economically (McCaffrey 2003: 164). For purposes of navigation, as mentioned before, this theory has long been embraced in state practice. When expanded to encompass the nonnavigational uses of transboundary waters, the community-of-interests doctrine goes beyond promoting a balance between states, as under equitable and reasonable use. The doctrine adjusts the law to the physical reality of a river basin as a hydrological unit, thereby challenging claims of state sovereignty as they pertain to international watercourses. In other words, ‘whereas the doctrine of limited territorial sovereignty merely

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connotes unilateral restraint, the concept of a community of interests evokes shared governance, joint action. Since all riparian states have interests in the watercourse, it follows that they should act jointly in managing it’ (McCaffrey 2003: 169). In this sense, the doctrine proposes the common management of the entire freshwater system among all of the states concerned, as necessary for promoting equitable and reasonable water use; the fair sharing of benefits and costs directly or indirectly associated with transboundary water cooperation; and the effective protection of aquatic and related ecosystems and the services they provide for human development and a healthy environment. Indeed, ‘countries may develop a river basin more efficiently and equitably, if the focus is less on the gallons used by each country and more on the potential or real economic benefits that can be derived from joint management’ (Hunter et al. 2001: 808). Further illustrating this theory, McCaffrey explains (2001: 166): A state’s interest in an international watercourse system would generally be defined by its present and prospective uses of the watercourse as well as its concern for the health of the watercourse ecosystem [... . E]ach riparian state has a unique interest, or bundle of interests, in the watercourse [...]. But [...] the interests of all riparian states are in one and the same watercourse system; they may in this sense be said to be bound together by that system. And while it is only a part of the hydrologic cycle, the watercourse system is a unity unto itself.

The community-of-interests doctrine is an important trend in the field of international water law and policy. To some extent, state practice reflects the community-of-interests theory, for example, through the adoption of watercourse agreements and the establishment of joint governance bodies. In their turn, such agreements and bodies have themselves often been designed in ways that reflect, to varying degrees, the doctrine’s other normative components, which are presented in the next section. As McCaffrey explains (2001: 156): While there are thus a number of examples from the 18th and 19th centuries of treaties and governmental statements employing the concept of common rivers or referring to rivers as common property, express references to this idea are not found as often in 20th century instruments [...]. However, several recent agreements and draft treaties do reflect what may be regarded as a communityof-interest approach.

In this sense, Article 2 of the 1995 South African Development Community Protocol states: ‘Member States undertake [...] to respect and abide by the principles of community-of-interests in the equitable utilization of those systems and related resources’. According to McCaffrey,

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‘this remarkable provision is the only express reference to community-ofinterest that has been discovered in a treaty. It is an important and forwardlooking statement’ (2001: 156). That South African Development Community agreement was later replaced by the 2000 Revised Protocol, which does not contain an equivalent provision. Yet, having followed closely the provisions of the UNWC, which we examine below, the latter protocol does reflect certain elements of the doctrine, in addition to retaining the use of the expression ‘shared watercourse’ throughout its text. In light of such state practice, could one make the case that the community-of-interests doctrine has established itself as a rule under international law? On the matter, Godana, as quoted by McCaffrey, argues that the idea of a community of interests (2001: 162–3): ‘is well known in municipal water systems and is the legal principle most appropriate for a fully developed legal community.’ But its reception into international law would be problematic precisely because ‘the international community is far from being fully developed.’ While states could of course incorporate the principle into agreements [...] ‘the idea has yet to develop into a principle of international law governing international waters relations in the absence of treaties’.

For McCaffrey (2001: 170–1): The term community describes the existence of a certain state of affairs; it does not in and of itself entail legal obligations. The term implies that all riparian states have interests in the watercourse, and perhaps that they should work together to advance those interests in ways that are mutually acceptable; it does not require them to cooperate in this way [... . T]he legal obligations governing the relations between riparian states reinforce the existence of a community among them, even if they do not spring from that community.

Based on these scholarly opinions, it would seem that the community-ofinterests doctrine is not yet recognized as part of customary law. The next section shows how the general idea behind a community of interests can be unpacked into normative elements that have gained strength in state practice and may in time, in their own right, evolve into custom in the field of international water law. NORMATIVE ELEMENTS OF THE COMMUNITY-OF-INTERESTS DOCTRINE As shown above, the community-of-interests theory is founded upon (Teclaff & Utton 1981: 51):

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the reasoning that international water resources, including groundwater, defy state frontiers. A drainage basin, whether surface or underground, is regarded as an economic unit irrespective of political boundaries, and the waters are vested in the community of the basin or riparian states. This theory is most conducive to international cooperation and to joint or integrated development of shared water resources.

Keeping in mind these foundations, we investigate the normative content of the doctrine at hand, by considering the different concepts and requirements that may flow from the idea of a community of riparian states. As McCaffrey (2001: 152) explains, the doctrine ‘can function not only as a theoretical basis of the law of international watercourses but also as a principle that informs concrete obligations of riparian states’. In this sense, the previous section looked at community of interests as a theory informing international water law. Below we consider those specific elements and obligations that, in our view, form the structure of that theory. As to their legal status, it would seem that, under current international law, riparians are not required to apply all of such elements or to do so to the fullest extent. As we will see below, some scholars make the case that certain elements of the doctrine have established themselves as norms under international customary water law, although numerous others would disagree or still raise doubts. In any case, by focusing in on such normative components, this section aims to enable a better understanding of how the doctrine may influence the concrete application, interpretation and implementation of international law, as a tool to facilitate transboundary cooperation and thus to ensure sustainable water management. Integrated river basin management The community-of-interests doctrine emerges fundamentally from the physical reality that river, lake and aquifer systems form a natural unit in themselves. Hence, the most basic normative requirement for translating the doctrine into practice is for riparian states to take into account the qualitative and quantitative connections between the waters of interrelated rivers, their tributaries, lakes, aquifers, wetlands, and so forth. When expanded further, this approach would call for the integrated management of related water, land and living resources, within the framework of integrated water resources management or integrated river basin management. Under such ecosystem-based approaches, therefore, governance and management focus not on single water bodies, but on the freshwater system as a whole, as well as on associated terrestrial, coastal and marine ecosystems. At the domestic level, a number of countries have adopted legislation requiring and enabling the integrated management of freshwater systems at

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the basin level. In Brazil, for example, Federal Law 9433/97 sets out the institutional and legal framework for the formulation and implementation of the National Water Resources Policy. The law considers the river basin as the fundamental territorial unit for purposes of planning and implementation, taking into account the interactions across water, land and living resources, and the connections between surface and underground waters. In Articles 6 to 8, Law 9433/97 mandates the elaboration of Water Resources Plans at the basin, state and national levels, to guide water management nationwide. In regulating this law, Article 2 of Resolution CNRH 22/2002 requires those management plans to describe the interrelations between aquifers and other surface and underground systems of water, as well as with the surrounding environment, in order to enable integrated, ecosystem-based management. Among the member states of the European Union (EU), the Water Framework Directive defines a river basin district as ‘the area of land and sea, made up of one or more neighboring river basins together with their associated groundwaters and coastal waters’. Freshwaters shared within the EU must be assigned to an international district, on the basis of which riparian countries must coordinate for the application of the Directive across the entire basin. With regard to freshwaters that extend beyond the EU’s borders, the riparian states concerned must reach out to their non-EU neighbours for coordination towards the basin-wide achievement of the Directive’s objectives (Articles 2(15) and 3(3)–(5)). Globally, most internationally-shared water systems lack cooperative frameworks adequately designed to enable integrated river basin management in a transboundary context. Aquifers, in particular, are typically excluded from the geographic scope of watercourse agreements. Still, the concept of integrated river basin management is no stranger to the international legal debate on transboundary water cooperation. In 1966, the Helsinki Rules incorporated that concept, with Article II defining an international drainage basin as ‘a geographical area extending over two or more states determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus’. As explained at the time of the Rules’ adoption, ‘in order to accommodate potential or existing conflicts in instances of multi-use development and to provide the optimum rational development of a common resource for the benefit of each state in whose territory a portion of the basin lies, the drainage basin approach has become a necessity’ (ILA 1966: 485). Following the same rationale, the 2004 Berlin Rules call on states to endeavour to promote the conjunctive management of surface, underground, and other pertinent waters, so as to account for the hydraulic connections between aquifers and between them and surface waters (Articles 5 and 37). The ILA included those provisions in its Berlin Rules,

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underscoring that the conjunctive management of surface and underground waters represents an important trend in international water law (ILA 2004: 351). The Berlin Rules also reflect the broader notion of integrated natural resources management, calling on states to strive ‘to integrate appropriately the management of waters with the management of other resources’ (Article 6). Yet, the question remains: does international law require riparian states to govern and manage international watercourses at the basin level, including by promoting the conjunctive use of surface and groundwaters, as well as the integrated management of water, land and living resources? As clarified in the commentaries to Article 5 of the Berlin Rules, there does not seem to be ‘a strict obligation, mandating conjunctive management under all circumstances [...] States [shall] use their best efforts to achieve conjunctive management. So long as states are making those efforts, there is no violation of customary international law from a failure to achieve that goal in its entirety’ (ILA 2004: 14). The same rational could arguably apply to the broader notion of integrated natural resources management. Shared ownership: joint action and mutual consent Another notion arguably emerging from a community of interests would be that of shared ownership of an international watercourse among all of its riparian states. Such a notion, however, does not seem to receive much acceptance under current international water law. In this sense, ‘several scholars have characterized international water resources as [...] shared property, [but] many others view them as the property of the individual riparians, which is subject only to the necessary limitations imposed by the principle of good neighborliness and the doctrine of abuse of rights’ (Benvenisti 1996: 399). In McCaffrey’s view (2001: 170), for example, co-basin states ‘have more in common with neighboring property owners than with co-owners of a single res. [...] The watercourse thus forms an extended ‘neighborhood’ – an area consisting of the entire watercourse system [...]. Their relations would be governed by nuisance [...] rather than the law of co-ownership, condominiums, or consortiums.’ In state practice, a recent example of resistance to the concept of shared ownership comes from the work of the International Law Commission (ILC) on transboundary natural resources. In its 2nd Report, after a first round of discussions among states, the rapporteur starts by clarifying his choice to use the term transboundary, so as to avoid the idea of common ownership that the word shared could entail (UN Doc A/CN.4/539, at 2). Within the framework of a community of interests, accepting such a notion would strengthen an obligation on states to work together on the management and use of their shared freshwaters (Benvenisti 1996: 399).

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First, shared ownership would require states to jointly manage those waters as a single unit. A requirement of joint action among states would take farther, i.e., beyond mere coordination and abidance by equitable use, the general duty basin countries have to cooperate on the development, management and protection of transboundary waters (Benvenisti 1996: 399). On the other hand, if one were to conclude that ownership is not shared, basin countries would have a duty to use the resource in a rational and fair way but there would be no mandate for joint action. On the issue, McCaffrey (2001: 162) interprets the teachings of Max Huber as follows: ‘the principle of joint ownership is valid only with regard to use, not in respect of the thing itself. It would allow the co-owner to dispose freely of its conceptual share and to use the thing freely in so far as the use of the other co-owner was not interfered with. But [...] it never entails the duty to act jointly with regard to the watercourse.’ Management here refers to ‘planning the sustainable development of an international watercourse and providing for the implementation of any plans adopted; and otherwise promoting the rational and optimal utilization, protection and control of the watercourse’ (UNWC, Article 24 (2)). In particular, the joint development and implementation of comprehensive basin-wide management plans would represent a concrete expression of joint action. These plans enable the adoption of an ecosystem approach within the framework of integrated river basin management discussed earlier, and have been adopted for several transboundary watersheds around the world (e.g., the Regional Strategic Action Programme for the Nubian Aquifer System). Joint management plans should be the result of a long process of data gathering and analysis, and definition of key objectives and a monitoring framework, with the involvement of all co-riparian states and in consultation with stakeholders. This means that the very process for developing such plans would enable states to come together around technical rather than political issues and to develop commonly agreed baselines from which to assess progress towards collective water security in the long-term. In the context of climate change, with all the uncertainties it imposes on water managers regarding future water availability and variability, such plans are of even greater importance. They are built to allow for ongoing monitoring and periodical adjustments as more information becomes available and as water allocation and management approaches and strategies are tested and their effectiveness, assessed (ILA 1966: 456, 522–23). As the next section shows, a requirement for joint action would flow directly from a community of riparian states, standing on its own as one of the normative components of the doctrine. The discussion around shared ownership also has implications in the context of planned measures that may have an impact on an international watercourse. If ownership were shared, basin countries would not only have a duty to use the resource in a rational and fair way, but they would

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also have a veto power over one another’s planned measures. In this sense, international law establishes certain substantive and procedural requirements that condition the implementation of major water projects. Shared ownership, however, would limit states’ freedom to negotiate on such criteria and procedures by imposing consensus among all basin states as a precondition for the development of the basin. As argued by Hartig (McCaffrey 2003: 163): [A] riparian state could no more acquire an exclusive right to the part of the res that happened to be located within its territory ‘than a farmer could acquire an exclusive property right in just one leg of a live cow.’ [... T]he various riparian states are in the same position as any co-owners of a res which consists of one unit and cannot be split into parts. Just like co-owners, they can act only by mutual consent in respect of this inseparable res.

This was also the understanding put forward by Bouchez during the discussions that preceded the adoption of the Helsinki Rules. He suggested that, in order to emphasize the importance of the community of interests that links all basin states, Chapter 2 of those Rules, on equitable utilization, should start with the following basic provision: ‘The basin states have to determine in common agreement the purposes for which the drainage basin is to be used’ (ILA 1966: 454). For Caflisch, as referenced by McCaffrey (2001: 164), in contrast, countries may agree in a treaty on the creation of a condominium with respect to transboundary waters. However, such waters do not constitute a condominium under customary law. A condominium ‘would imply that each of the riparian states would have a right of veto over new activities by other states [...], as with the theory of absolute territorial integrity [... . S]uch a right does not exist.’ This latter position seems to reflect what most states are comfortable with when it comes to balancing territorial sovereignty and integrity in relation to planned measures. Most watercourse agreements do not create a veto power, and an explicit reference to shared ownership is even rarer. In Africa, for example, ‘the established practice is also generally to formulate an obligation or duty to consult the competent commission or organization,’ rather than to impose a veto power (Mbengue 2013: 220). Similarly, under Article V of the River Plate Basin Treaty, states remain free to implement unilateral actions within their own territories, as long as they comply with their duties under international law. Also in South America, a recent International Court of Justice (ICJ) decision interpreted the watercourse agreement in force between Argentina and Uruguay as allowing the party concerned to proceed with implementation of the planned measure, at its own risk, after the completion of the negotiation process (Case concerning Pulp Mills on the River Uruguay, paragraph 154). This ‘proceed at own risk’ approach is in line with Part III of the

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UNWC and, beyond the field of international water law, reflects an earlier ICJ decision on a case between Finland and Denmark (Passage through the Great Belt, paragraph 33). An interesting exception to state practice in this regard comes from West Africa. From the signing of a 1963 treaty to the adoption of the forwardlooking 2002 Water Charter, the four countries that share the Senegal Basin have had a successful history of cooperation within the framework of an advanced and continuously evolving transboundary water management regime. A remarkable feature already included in that original treaty was to subject unilateral or joint projects on the Senegal Basin to prior approval by the joint body constituted among the co-riparian states (Mbengue 2013: 217, 220–21). The same feature has been retained and progressively strengthened and detailed in all subsequent agreements adopted among the basin countries (e.g., Statute of the Senegal River, Article 4; Water Charter, Article 10). This process culminated in the adoption of the Water Charter, crowning the riparian states’ community of interests and their collective decision to manage the entire Senegal Basin as an ecosystem essential for sustainable development in the riparian states (Preamble). As Mbengue explains (2013: 223, 227–8): [F]rom the very beginning the idea of a ‘community of law’ was inseparable from the need to establish a community of management of the resources of the Senegal [... . T]he only legal safeguard that was foreseen by the riparian states to ensure the effectiveness as well as the predictability of a community of management was to subject the implementation of measures or activities within the Senegal River basin to the unanimity rule [... and so ...] unilateral actions [...] are perceived [...] as distorting the very objective of solidarity that remains the ultimate end that justifies full adherence to the legal regime.

The Senegal basin countries are to be praised for the progressive spirit of their regime. We posit, however, that mutual consent as a requirement for the implementation of planned measures may not, in itself, necessarily prove essential or even beneficial in all cases, in addition to being often politically unfeasible. Where mutual consent is a requirement among multiple basin states, it may push them into rushed negotiations and decisions on tradeoffs behind closed doors. In such cases, projects may be accepted among states on the basis of reciprocity, sometimes with no or little regard for the value of ecosystem services or the needs of riparian communities that depend on those services for their lives and livelihoods. Furthermore, consultation and negotiation procedures on planned measures may prove just as effective for purposes of sustainable river development. Such procedures may reflect an earlier stage in the cooperation process – one that entails coordinated action, as opposed to joint development conditioned upon mutual consent. Still, those

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procedures enable states to be aware of their neighbours’ intentions and have an early and effective opportunity to present their opinion, voice concerns, assess opportunities for benefit-sharing and consider the need for compensation. If states comply with these requirements, mutual consent may not be vital for sustainable water management and protection. Such a case of cooperation, however, would fall short from reflecting a fully developed community between states. Furthermore, perhaps more important than requiring mutual consent may be empowering civil society groups to monitor their own government’s compliance with international law pertaining to transboundary waters, the environment and human rights. For that to happen, substantive and procedural norms dealing with planned measures and governing information exchange, consultations and negotiations in that regard are imperative. Such norms would provide the basis for a state’s constituencies to review the project documents and thus offer a platform for domestic interest groups to influence the management of transboundary waters. Equitable sharing and joint management of transboundary waters The community-of-interests doctrine embraces the equitable and reasonable utilization principle discussed above as normative guidance for maintaining a fair balance among co-riparian states and ensuring all relevant factors are taken into account in the water management and allocation process. The doctrine, however, goes beyond merely incorporating equitable and reasonable use, by recognizing that fairness and sustainability can only be fully achieved in the context of joint management. The premise here is that unilateral passive behaviour, in which countries establish their respective quotas and refrain from violating them, or even some level of coordination, may not suffice to enable the integrated management of river basins as physical units. As Hunter et al. (2002: 801, 808) clarify, the principle of equitable and reasonable use is: primarily concerned with the allocation of shared water resources among riparian states [... . It] was not developed with broader consideration of environmental protection in mind, and it may be poorly suited for addressing environmental harms that do not conflict with other riparian party’s use of the river [...]. Equitable utilization may be more acceptable if viewed as a transition toward common management of watercourses aimed at comprehensive environmental and development goals [...]. The concept of joint or common management is a natural extension of the doctrine of equitable utilization [...]. Common management reflects the need in light of the doctrine of equitable utilization to manage the development of a watercourse with the active participation of all interested states.

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Recognizing the limitations of equitable and reasonable use, the community-of-interests doctrine builds on the former to bring international cooperation to a more advanced stage, in which joint management becomes the norm. In this sense, the cooperation process may follow a step-by-step approach, as circumstances change, a shared understanding of the resource and the rules of the game develops, and mutual confidence and awareness of the benefits from cooperation grow (UNECE et al. 2003: 9, 11). The community-of-interests doctrine, therefore, looks at equitable and reasonable use as integral to a broader cooperation regime, which, from a sustainable water management perspective, would be ‘preferable to adjudication of each source of friction between the basin states (ILA 1966: 522–3). Under the doctrine, for example, states would pursue equitable and reasonable utilization within the framework of an international agreement calling for and enabling optimal and sustainable basin-wide management. Instead of relying only on information exchange, a community of states would create a unified database, supported by joint monitoring, research and development. Other joint management and planning mechanisms might include joint water quality standards and objectives, joint contingency and mutual assistance plans, transboundary strategies for protecting the ecosystems of international watercourses, and agreed norms for transboundary environmental impact assessments. Basin-wide action plans, in particular, are useful tools for bringing different elements of joint management into one comprehensive, coherent and systematic package. As regards the status of joint action in international law, Benvenisti (1996: 413) considers that a ‘reluctance to endorse joint management procedures may reflect a too-cautious reading of current international norms on the subject and can be contrasted with recently adopted instruments concerning management of shared resources’. International agreements for transboundary water cooperation Each watershed has its own particular traits in terms of biodiversity, climate, geography, hydrology, demographic pressure, preferential water uses, environmental threats, institutional management structures, juridical frameworks, and so on. Over at least the last 800 years, therefore, political units have entered into tailored arrangements at regional, basin and/or subbasin levels. Such arrangements aim to address particular interests and needs, taking into account social, economic, environmental, cultural, political, and governance specificities and the characteristics and uses of the resource itself, its ecosystems and area of influence (Dellapenna & Gupta 2013: 12). Whether adopted in the form of binding agreements or through less formal instruments, such as declarations, memorandums of understanding,

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guidelines and codes of conduct, such arrangements refine the normative content of international legal obligations and offer a framework in the context of which interstate relations may evolve, expand and deepen through time. In this sense, Benvenisti (1996: 391–2) argues that long-term institutional interdependence and frequent exchanges are fundamental for cooperation between riparian states to endure: Riparians in an interdependent situation may hesitate to cooperate if through cooperation the game structure could change and they would no longer be able to reciprocate to the defection of others. The key to successful cooperation in the use of international water resources is therefore the maintenance of indefinite interdependence among the riparians.

Bearing in mind Benvenisti’s point, some iteration may result from information exchange and periodical meetings among delegates. However, a binding and enforceable international management agreement would give each of the parties a greater level of assurance that all basin countries would cooperate in the long-term and in accordance with the terms expressly and formally agreed by them. In other words, effective basin-wide treaties among all co-riparians would create a high level of interdependence and contribute to maintaining legal and political stability and certainty. This state of affairs, in turn, would establish an environment conducive to a longstanding community of states. As such, we consider water agreements to be a core component of the community-of-interests doctrine, and crucial for its effective implementation. As evidenced by Article 8 of the UNWC, such agreements are also at the core of the general obligation to cooperate, which ‘is probably now required by general international law [as] a genuine, independent obligation, binding on riparian states’ (McCaffrey 2001: 404). Yet, of the world’s 276 transboundary basins, only 40 per cent have management frameworks in place (UNEP 2006: 35). Could this serve as an indication that a general obligation for riparian states to adopt such agreements transcends the boundaries of limited territorial sovereignty and thus of existing customary law? During the drafting process of the UNWC, the ILC (1994: 94) underscored that, in accordance with state practice and international judicial decisions, ‘watercourse states are not under an obligation to conclude an agreement before using the waters of the international watercourse.’ Rieu-Clarke et al. (2012: 94) corroborate the ILC’s conclusion, simply highlighting that it would still ‘be advisable that the riparian countries enter into such specific agreements for ensuring the more effective management and development of their transboundary river basin’. Hence, it does not appear that, at this point, international customary water law requires co-riparian states to enter into agreements, even though the importance of such agreements has been widely recognized. In a study on transboundary water cooperation in the newly independent

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states, for example, several international institutions (UNECE et al. 2003: 9) note that the ‘lack of legal and regulatory framework for bilateral or multilateral cooperation is frequently a bottleneck.’ As a matter of priority, the study urges countries to adopt river basin agreements, as legal frameworks for cooperation (UNECE et al. 2003: 9–10). From our perspective, agreements are also important as a testament to the riparian countries’ commitment to international cooperation; a solid foundation for the channeling of financial and technical assistance; and a platform for engaging stakeholders. A final point to make here is that, for a watercourse agreement to conform fully to the community-of-interests doctrine, such an agreement would have to involve all co-riparian states and include a provision specifying its geographic scope as encompassing the entire basin. Despite this, 80 per cent of the existing watercourse agreements are bilateral, even where more states are part of the system (UNEP 2006: 35). Joint governance bodies Article 1(5) of the UNECE Water Convention defines joint bodies as ‘any bilateral or multilateral commission or other appropriate institutional arrangements for cooperation between riparian parties’. In state practice, joint bodies have played an important role in the management of international waters. But their structure, composition, authority and mandate, and the significance of results achieved through their work, vary considerably across watersheds and regions. Hence, states seem to have wide room to negotiate and compromise when setting up such bodies. For the purposes of this chapter, we consider the establishment of joint bodies to be a normative element of the doctrine at hand. By adopting such mechanisms, basin states implicitly acknowledge their interdependence within a community of interests (McCaffrey 2003: 159–60; Case concerning the Auditing of Accounts, paragraph 97). Joint institutions may develop and implement joint management plans and/or coordinate and provide guidance to decision-making and management activities undertaken within the territories of each state. They may also build up scientific knowledge, coordinate the regular exchange and generation of data, and serve as a forum for ongoing interstate dialogue on water issues. Another important role is for these bodies to serve as an interface between their member states and stakeholders, by proposing and complying with public participation standards, and engaging in awareness-raising, data dissemination and educational efforts. In addition, joint institutions may supervise, monitor and, in some rare instances, enforce the implementation of water agreements, including by verifying and addressing cases of non-compliance, and advising states in the prevention and resolution of disputes (Caponera 2007: 518). As Benvenisti (1996: 412–13) observes:

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International institutions can bridge the inherent gap between sovereigns [...] by creating a suitable political environment for transactions between their members [...]. A forum that intensifies interaction, increases the number of exchanges and reduces the intervals between them can develop stable mutual expectations regarding future behavior and reduce both bargaining costs and uncertainty about the value of proposed transactions.

Building on Article 24 of the UNWC, Boisson de Chazournes (2003: 96–8) explains that these mechanisms are ‘necessary corollaries of a sound and sustainable application of [...] principles and rules [... . A] sustainable management of a watercourse is a collective process among riparians and [...] a joint management mechanism is a means to this end.’ As with watercourse agreements, therefore, joint bodies would seem crucial for the effective implementation of the community-of-interests doctrine. Viewing cooperation as an evolving process, joint bodies are important not only for promoting joint river basin management, where interstate relations are more advanced. If political appetite for joint action has yet to develop, these bodies can lay down the steppingstones for progress, by coordinating, across the basin, decision-making and implementation within each riparian state. As countries develop a greater understanding of and appreciation for the benefits that may be gained through cooperation, they may expand a body’s authority and supply its secretariat with better staff, equipment and installations. Now, does international customary water law require states to establish joint governance bodies? Some experts assert that a requirement to create such bodies has yet to develop into custom (ILA 2004: 404). After all, the establishment of a joint body requires the states concerned to adopt some kind of arrangement formalizing the body’s status and determining its mandate. If there are still doubts that adopting such arrangements can be seen as a duty under customary law, would it not be logical to extend this same lack of clarity to the creation of joint bodies? According to Tanzi (2002: 191), for example, ‘a general customary obligation for [watercourse states] to establish joint bodies cannot be assessed due to the lack of a wide opinio juris in that direction. The consistent practice to that effect can be ascertained to be based at least on a consistent opinio necessitatis.’ For Boisson de Chazournes, however, international water law actually requires states to establish joint governance bodies, which should not be ‘expected to flow from the development of a watercourse regime and even more so from the good will of the riparian countries [...]. What still needs to be clarified [...] is the range of functions to be accomplished by those mechanisms’ (2003: 103, 105). That this debate is ongoing should not, as it has been argued, ‘cloud the urgent necessity of the creation of such a legal rule and to its existence already as a rule of international morality as well as of the community of Nations’ (Manner & Veli-Martti 1988: 172–3). The creation of joint bodies has

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indeed become a common practice in international relations and an important tool to enhance cooperation among basin states. According to Dellapenna and Gupta (2013: 14), this practice ‘show[s] the development of administrative law where legislative and judicial functions are giving way to administrative rule-making on a day-to-day basis by river basin commissions being set up for the purpose’. Furthermore, as shown below, the UNWC links the creation of joint bodies to the well-established duty to cooperate (Article 8(1)). In so doing, the UNWC perhaps creates room for the progressive development into custom of a rule requiring that such bodies be established, seen as ancillary to the general duty states have to cooperate over their shared freshwaters. In the previous section, we argued that only those agreements involving all co-riparian states and applicable to the entire basin would be in perfect conformity with the doctrine. Similarly, only a body with authority over an entire freshwater system would be positioned to support a true community of basin states. On this matter, some experts assert that, ‘often basin wide management mechanisms will be the best or even a necessary means for achieving equitable and sustainable management of waters’ (ILA 2004: 404). COMMUNITY OF INTERESTS IN TREATY LAW This section examines if and to what extent the community-of-interests doctrine and its various elements have been incorporated into global treaties in the field of international water law. This is important because, where there is still debate on the status or content of norms under customary law, codification contributes to clarifying those aspects and facilitating the process for law development (Dellapenna & Gupta 2013: 6–7). The UN Watercourses Convention The UN Watercourses Convention (UNWC) is a formal consolidation of principles and rules regulating the uses of international river basins for purposes other than navigation, universally agreed upon under the umbrella of the UN General Assembly. This treaty was adopted in 1997, on the basis of the ‘conviction that a framework convention [would] ensure the utilization, development, conservation, management, and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations’ (UNWC, Preamble). The UNWC serves as a key contribution to the codification, clarification and progressive development of customary law in this field. Almost half a

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century ago, governments and renowned legal experts came together around the recognition that the world’s transboundary basins were poorly governed and that states generally did not have a clear understanding of the applicable norms. It was this recognition that eventually triggered the drafting process of the UNWC, so that customary law would no longer be the only legal source governing relations between co-riparian states in the absence of watercourse agreements. After all, ‘the process of identifying the norms of customary international law, even when successful [...] often leaves gaps and ambiguities [...], requiring research into the proffered reasons for a practice in what often are obscure and inconclusive sources’ (Dellapenna 2008: 64, 66, 72). Customary law is thus generally vague, unclear and contested and yet it lacks a neutral enforcement mechanism. As we explain elsewhere (Rocha Loures & Rieu-Clarke 2013: 52): reliance on customary international law alone is thus insufficient to address the challenge of transboundary water management. The UNWC offers a universal common ground arrived at after exhaustive discussions and which makes all watercourse states aware of their minimum rights and duties. Codification of the applicable law in the UNWC is, in this sense, crucial to providing legal clarity and stability and thus preventing unnecessary disputes and balancing power.

Counting now 36 contracting states, the UNWC is widely accepted as the most authoritative source of the law in this field (McCaffrey 2003: 306, 316, Rocha Loures & Rieu-Clarke 2013: 50–1). Given this authority, heightened by its entry into force on 17 August 2014, the UNWC is of special importance for this chapter. Of course, because the UNWC is a framework instrument, regional, basin and sub-basin agreements are likely to go into greater detail when incorporating the normative elements that would form a community of riparian states. Still, the UNWC represents a milestone in the evolution of international water law, and is the first global water code reflecting elements of the community-ofinterests doctrine, as per its provisions highlighted below. Geographic scope The UNWC accounts for the natural connections within a river system when determining its scope of application. Article 2(a) defines the term watercourse as ‘a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus’. This definition highlights the need for an integrated approach to a hydrological system formed by a river’s mainstem, its tributaries and any connected water bodies, such as glaciers, reservoirs, canals, wetlands, lakes and aquifers, even when these components are entirely located within a single state (ILC 1994: 90).

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Such a definition is in line with the idea of a watercourse as a natural unity from which the community-of-interests doctrine springs. Yet, not entirely in line with the doctrine, the UNWC allows for the adoption of partial agreements, i.e., those that do not include all basin states and/or do not apply to the entire watershed. In this sense, watercourse agreements may be adopted for ‘an entire international watercourse or any part thereof’ (Article 3(4)). Presumably, as a framework convention, limiting states’ ability to enter into partial agreements would have meant going a step too far. That provision, however, should not be read in isolation, but within the framework of related obligations and rights of riparian states – a framework that the Convention creates to foster a system-wide approach, while preserving states’ freedom to negotiate. In this sense, the Convention affirms ‘the right of all riparian states to engage in discussions around a shared watercourse to deal with existing situations where actions or agreements by or between some riparians have repercussions on others’ (Dellapenna & Gupta 2013: 14). Specifically, Article 3(4) determines that a partial agreement may be adopted ‘except insofar as it adversely affects, to a significant extent, the use by one or more other watercourse states of the waters of the watercourse, without their express consent’. Article 3(6) goes on to determine that nothing in partial agreements shall affect the rights or obligations under the UNWC for states not participating in such agreements. In Article 4(1), the Convention establishes the rights of all riparian states to participate in treaty consultations and negotiations and to become a party thereof, in the case of agreements applying to an entire watercourse. Under paragraph 2 of the same Article, a third riparian state that may be significantly affected by a partial agreement is ‘entitled to participate in consultations on such an agreement and, where appropriate, in the negotiation thereof in good faith with a view to becoming a party thereto, to the extent that its use is thereby affected’. When read in conjunction with the definition of a watercourse adopted by the Convention, the above provisions aim to encourage states to work together across an entire freshwater system, as called for by the community-of-interests doctrine. Arguably, as more countries become parties to the UNWC, consolidating its status as a statement of customary water law, the Convention’s push for basin-wide management would become more persuasive. This, in turn, could trigger the revision or adoption of water agreements to reflect the physical reality that watercourses are systems of surface and underground waters, and should be developed, managed and protected as such. Substantive provisions Article 5(2), on equitable and reasonable participation, reads: ‘Watercourse States shall participate in the use, development and protection of an

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international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.’ This provision requires the proactive and mutually beneficial participation of all riparian states, on an equitable and reasonable basis, in the development, protection and management of shared water resources, towards collaboratively advancing and safeguarding their common interests therein. In so doing, countries must take into account all relevant factors, including ‘the extent to which the watercourse states concerned have contributed to the problem and the extent to which they will benefit from its solution’ (ILC 1994: 119). In this sense, for example, countries must work together in addressing transboundary environmental concerns (e.g., maintenance of sustainable river flows), mitigating shared risks (e.g., flood control measures), and tapping opportunities for benefit-sharing (e.g., joint projects for river development) (Hunter et al. 2002: 808). This section highlights Article 5(2) of the UNWC because, as Tanzi and Arcari (2001: 118, 120) explain, the principle of equitable participation ‘enhances the vision of an international watercourse as a ‘river community’, entailing as a consequence the obligation for the co-riparians to act affirmatively for the purposes of its protection and control’. Legal and institutional management mechanisms Article 8 of the UNWC codifies the general obligation to cooperate. In so doing, Article 8(2) contains an explicit reference to ‘joint mechanisms and commissions’ as vehicles for cooperation, but does not impose an obligation on states to enter into watercourse agreements or to create joint bodies. Yet, the Convention determines that, ‘where a watercourse state considers that adjustment and application of the [UNWC’s] provisions [...] is required because of the characteristics and uses of a particular international watercourse, watercourse states shall consult with a view to negotiating in good faith for the purpose of concluding a watercourse agreement’. (Article 3(5)) In its turn, Article 24(1) requires states to consult with each other, upon request by any of the riparians, concerning the management of an international watercourse, which may include the establishment of joint bodies. Hence, the Convention does not overlook the importance of those governance mechanisms for structuring a community of riparian states. By requiring countries to consult in this regard, upon request by any of the riparians, the Convention goes as far as a framework treaty negotiated at the global level could, in terms of promoting the wider adoption of watercourse agreements and the establishment of joint bodies.

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Procedural norms The UNWC lays out a robust body of principles and rules governing notification, information exchange, consultations and negotiations on major planned measures. Yet, the Convention does not condition the implementation of such measures to mutual consent among riparians, arguably deviating from the community-of-interests doctrine in its purest form. Articles 11 to 19 of the Convention represent a middle ground solution between absolute unilateralism and full recognition of a community of riparian states. At the earlier stages of cooperation, these mechanisms might be the only politically feasible solution to facilitate peaceful and mutually beneficial interstate interactions in relation to planned measures. Joint action In various instances, the UNWC requires states to move beyond mere coordination by acting jointly, if necessary to achieve certain outcomes pertaining to the development, use, management and protection of the watercourse. For example, states must, individually and, where appropriate, jointly: protect and preserve the ecosystems of an international watercourse; prevent, reduce and control water pollution; take measures to prevent and mitigate water-related harmful conditions; and develop contingency plans for responding to emergencies (Articles 20, 21, 27 and 28). The requirement for joint action embedded in those provisions is a concrete application of the concept of joint management, which is one of the core elements of the doctrine examined above. The UN Economic Commission for Europe Water Convention The UN Economic Commission for Europe (UNECE) Water Convention was adopted in 1992, among the members of that commission. It has currently still at 40 parties and has been in force since 1996. Similarly to the UNWC, the UNECE Water Convention is a framework legal instrument, but generally contains stricter, more detailed provisions than the former. Still, certain aspects of the UNWC supplement the UNECE Water Convention, such as the former’s well-developed articles on equitable and reasonable use, planned measures and dispute settlement. Another difference is that the UNECE Water Convention was originally negotiated and adopted at a regional level. Accordingly, as approved in 1992, this Convention was open to accession only to UNECE members. Although a detailed survey of water agreements in relation to the community-of-interests doctrine falls outside the scope of the present chapter, the UNECE Water Convention merits a special place in our analysis, alongside the UNWC. This is because, in 2003, the parties to the UNECE Water Convention decided to adopt amendments opening it to accession by all UN member states. In

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February 2013, these amendments entered into force and should become fully operational within the coming months, when all countries that were parties to the Convention at the time of their adoption, plus the EU, complete their acceptance process. The Convention has thus the potential to gain global reach, if widely ratified beyond the UNECE region. The UNECE Water Convention does not make an explicit reference to a community of riparian states, but contains detailed and advanced provisions on joint management of shared waters, in line with the doctrine. For example, Article 11 requires parties to establish and implement joint programs for monitoring the conditions of an international watercourse. For the purposes of this chapter, we will focus on the UNECE Water Convention’s approach to water agreements and joint bodies, recalling that the UNWC does not require states to cooperate through those mechanisms. In its turn, the UNECE Water Convention advances those two core elements of the community-of-interests doctrine, by mandating its parties to enter into watercourse agreements and, through such agreements, to establish joint governance bodies. In the eighth paragraph of its Preamble, the UNECE Water Convention stipulates: ‘Cooperation between member countries [...] shall be implemented primarily through the elaboration of agreements between countries bordering the same waters, especially where no such agreements have yet been reached.’ The Convention then determines that ‘the riparian parties shall cooperate [...] in particular through bilateral and multilateral agreements’. (Article 6(2)) Parties must enter into such agreements, ‘in order to define their mutual relations and conduct regarding the prevention, control and reduction of transboundary impact’ (Article 9(1)). Furthermore, Article 9(2) requires states to include in such agreements provisions establishing joint governance mechanisms. In so doing, the UNECE Water Convention relies on institutional cooperation as the beating heart of any international water management regime. Underlying this approach is a presumption that secondary forms of cooperation would emerge naturally from the adoption of a water agreement and the joint body created thereunder. Article 9, however, also determines that, in designing their agreements, states ‘shall specify the catchment area, or part(s) thereof, subject to cooperation’. This reference to the expression parts thereof makes clear that partial agreements would be in conformity with the Convention. This means that, although the UNECE Water Convention creates an obligation with regard to the adoption of watercourse agreements, it does not go as far as to require that such agreements be adopted among all states within a basin or be applicable to the entire watershed. While allowing for the adoption of partial agreements, the Convention requires all joint bodies operating within the same river basin to coordinate with one another towards the common goal of preventing, controlling and reducing

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transboundary impacts across the entire watershed (Article 9(5)). Hence, the Convention calls for institutional coordination as a means for advancing integrated river basin management. Given its above provisions on legal and institutional mechanisms, and with the UNECE Water Convention going global, would its widespread ratification have any bearing on the status of those normative elements of the doctrine and their progressive development into custom? As seen above, the prevalent understanding seems to be that current international water law neither obligates states to adopt basin-specific treaties, nor requires them to create joint management organizations. As Hunter et al. (2002: 313) write, however: In addition to creating specific obligation for their parties, treaties may contribute to the development of customary international law [...]. Even when a treaty does not immediately lead to the formation of a new customary rule, it can nonetheless contribute to the development of that rule. As the number of treaties and declarations that incorporate the rule increases, the argument becomes stronger that an international consensus is emerging.

In this sense, arguably, widespread ratification of a global treaty such as the UNECE Water Convention could eventually contribute to crystalizing in customary law a duty on states to adopt water agreements and to include in such agreements the establishment of joint bodies. COMMUNITY-OF-INTERESTS IN JUDICIAL OR ARBITRAL DECISIONS This section examines important international decisions related to water disputes. It does not do so thoroughly or exhaustively, but only with the intent to illustrate the concrete application of the community-of-interests doctrine and its various normative components. The doctrine at hand was for the first time endorsed in an international judicial decision in 1929, in the Territorial Jurisdiction of the International Commission of the River Oder case. The Permanent Court of International Justice was then asked to clarify the territorial extent of navigation rights in relation to tributaries within Poland, the upper-most riparian, on the basis of an agreement adopted among the states concerned. The Court ruled that the jurisdiction of the river commission extended to the entire navigable course of the river, including the portions of those tributaries beyond the last international border. The decision, therefore, highlighted the notion of a watershed as a unified natural system throughout its entire course (McCaffrey 2003: 151), which is one of the doctrine’s key components examined above. The decision’s relevant section reads (River Oder case, at 27–8):

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[A] solution to the problem has been sought not in the idea of a right of passage in favor of upstream states, but in that of a community of interest of riparian states. This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian state in relation to the others.

The same decision opened the door for the applicability of that doctrine beyond navigation. As McCaffrey (2001: 151–2) explains: Since a ‘purely grammatical analysis’ of the [agreement’s relevant provision] did not provide a definitive answer, the Court interpreted the article by referring to [...] ‘principles governing international fluvial law in general.’ [...] While the question put to the Court concerned rights of navigation, [the decision], based as it was upon [such principles], is of broader applicability [...]. The Court did not suggest that [its] considerations applied only to navigation [...]. It would, therefore, not be unreasonable to conclude that [those] considerations and thus the notion of community of interests, apply to uses of international watercourses other than navigation.

Another case to recall pertains to a dispute in the 1950s between France and Spain over Lake Lanoux, located on the border between those countries. In that case, Spain, feeling threatened by the works proposed by France for the utilization of the lake, invoked a requirement of mutual consent. The Arbitral Tribunal held that mutual consent would represent an excessive and unjustifiable restriction on states’ territorial sovereignty, and could not be regarded as a customary rule and even less as a general principle of law (Lake Lanoux Arbitration, at 197: 195): [I]n order to appreciate in its essence the necessity for prior agreement, one must envisage the hypothesis in which the interested states cannot reach agreement. In such case, [...] the state which is normally competent has lost its right to act alone as a result of the unconditional and arbitrary opposition of another state. This amounts to admitting a ‘right of assent,’ a ‘right of veto,’ which at the discretion of one state paralyses the exercise of the territorial jurisdiction of another.

One could respond to this argument by noting that shared ownership would not create a right of veto, if applied in conjunction with other related duties, for example, the principle of equitable use; the duty to behave in good-faith and not act arbitrarily by withholding consent; and procedural duties of consultation and negotiation on planned measures (McCaffrey 2003: 163). In 1997, the ICJ made express reference to the notion of a community of interests in the case concerning a joint development project on the Danube

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River. The dispute was triggered by Hungary’s decision to abandon the works for the construction of the Nagymaros dam and to suspend the activities at another site, in view of the potential for aquatic ecosystems to be significantly harmed. Czechoslovakia, in retaliation, unilaterally diverted the river’s natural flow away from the border zone. In its ruling, the Court invoked the Permanent Court of International Justice decision on the River Oder case and the UNWC, stating that ‘modern development of international law has strengthened this principle [of a community of interests] for non-navigational uses of international watercourses as well, as evidenced by the adoption of the [UNWC]’ (Gabcˇ`ıkovo-Nagymaros Project case, paragraph 85). The Court also referred to equitable and reasonable use in the context of the doctrine: ‘Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube [...] failed to respect the proportionality which is required by international law’ (Gabcˇ`ıkovo-Nagymaros Project case, paragraph 85). This passage, arguably, reinforces the conclusion that equitable and reasonable use is a key component of the community-of-interests doctrine. Another relevant ICJ decision comes from a case between Argentina and Uruguay. In that case, Argentina submitted the dispute to the Court on the basis of the Uruguay River Statute – the applicable watercourse agreement between the two countries – after Uruguay authorized the construction of two pulp mills on the riverbank. In justifying its decision, the Court pointed out: ‘the Parties have a long-standing and effective tradition of cooperation and coordination through [their joint body]. By acting jointly [...], the Parties have established a real community of interests and rights in the management of the River Uruguay and in the protection of its environment’ (Pulp Mills case, paragraph 281). This passage seems to assume that a community of interests flows from the history of cooperation between the states concerned under the umbrella of legal and institutional mechanisms. Based on our earlier discussions, the doctrine would seem to spring from the natural unity that characterizes a freshwater system, and which would call for, among other things, the adoption of watercourse agreements and the establishment of joint bodies. In other words, a community would not be formed as a result of those mechanisms being created; rather, states would create those mechanisms out of a sense of necessity, i.e., because of a recognition that water agreements and joint bodies are needed to enable the management of the basin as a single unit, in conformity with the doctrine. A 2004 arbitral award seems to have followed this rational, in a case between the Netherlands and France: ‘When the states bordering an international waterway decide to create a joint regime for the use of its waters, they are acknowledging a ‘‘community of interests’’ which leads to a ‘‘community of law’’.

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Solidarity between the bordering states is undoubtedly a factor in their community of interests’ (Case concerning the Auditing of Accounts, paragraph 97, italics added). Back to the Pulp Mills case, the ICJ was also asked to consider a potential breach by Uruguay of Article 35 of the watercourse agreement in question, which requires parties ‘to adopt the necessary measures to ensure that the management of the soil and woodland and the use of groundwater and the waters of the tributaries of the river do not cause changes which may significantly impair the regime of the river or the quality of its waters’. The expansive geographic scope of this duty is aligned with the doctrine, in that it advances an ecosystem approach in the management of an international watercourse. Building on Article 36 of the Statute, which calls for coordination between the parties in maintaining the ecological balance of the river, the Court stated (Pulp Mills case, paragraph 84): [C]ompliance with this obligation cannot be expected to come through the individual action of either Party, acting on its own. Its implementation requires coordination through the Commission. It reflects the common interest dimension of the 1975 Statute and expresses one of the purposes for the establishment of the joint machinery which is to coordinate the actions and measures taken by the Parties for the sustainable management and environmental protection of the river.

Finally, the ICJ decision touched upon joint management within the framework of a watercourse agreement and a joint body: ‘Optimum and rational utilization is to be achieved through compliance with the obligations prescribed by the 1975 Statute for the protection of the environment and the joint management of this shared resource. This objective must also be ensured through CARU, which constitutes ‘‘the joint machinery’’ necessary for its achievement, and through the regulations adopted by it[...]’ (Pulp Mills case, paragraph 173). THE COMMUNITY-OF-INTERESTS DOCTRINE IN INTERNATIONAL WATER POLICY This section examines whether, how and to what extent community of interests and its normative elements have come up in the context of global policy dialogues and statements. Already in 1972, Principle 24 of the Stockholm Declaration recognized: ‘Cooperation through multilateral or bilateral arrangements [...] is essential to effectively control, prevent, reduce, and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all states.’

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More recently, the Istanbul Ministerial Statement was endorsed at the 5th World Water Forum, with a timid approach to cooperation between coriparian states, even though ‘transboundary waters’ was the theme of that year’s World Water Day (2009, paragraphs 2, 9, 16): We will further support the implementation of [integrated water resources management] at the level of river basin, watershed and groundwater systems, within each country, and, where appropriate, through international cooperation [...]. We will take, as appropriate, concrete and tangible steps to improve and promote cooperation on sustainable use and protection of transboundary water resources through coordinated action of riparian states, in conformity with existing agreements and/or other relevant arrangements, taking into account the interests of all riparian states concerned. We will work to strengthen existing institutions and develop new ones, as appropriate and if needed.

In 2012, the Ministerial Declaration adopted at the 6th World Water Forum contained only one, somewhat vague, paragraph dealing with transboundary water cooperation (2012, paragraph 24): [W]e are committed to enhance cooperation across and beyond water, taking into account the interests of all riparian states concerned [...]. We appreciate cooperative efforts in the field of transboundary waters. We intend to further promote and encourage coordinated, equitable, reasonable and optimal water utilization in transboundary basins, with a view to deepening mutual trust among riparian countries and achieve sound cooperation. Several of the principles of the relevant international Conventions on water can be useful in this regard.

Later that same year, at Rio +20, the world’s governments proved even more reluctant not only to give concrete content to their obligations as coriparians, but to even discuss them at all at the global level. The author attended the conference, during which the expression ‘transboundary water cooperation’ was taboo. Referring to community of interests would have been like swearing, one could assume. This toxic atmosphere for a matter as important as cooperation between co-riparian states eventually trickled down to influence the text of the Conference’s outcome document, to which we return in a moment. Moving on to 2013, the Declaration of the High Level International Conference on Water Cooperation contains a more progressive approach: (italics added) We [...] encourage stronger dialogue [...] to promote the cooperative development and management of water across boundaries and sectors for the benefit of all stakeholders, in accordance with the norms of international law. We encourage governments and communities [...] to consider [...] specific

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steps to cooperatively manage these resources, such as [...] joint assessment, planning, monitoring and information-sharing mechanisms, legal frameworks, river basin organizations, mediation and dispute settlement.

The approach of managing water at the basin level, including in a transboundary context, is reflected in paragraph 5(b) of the Budapest Water Summit Statement. Moreover, the Statement makes explicit reference to joint bodies, work programs and joint monitoring (paragraph 21). Bearing in mind the above policy statements, let us underscore the importance of the widespread ratification of the UNWC, from a political standpoint, to reinforce the duty to cooperate, including, where appropriate, through joint planning and actions, within the framework of the community-of-interests doctrine. The same would be true with the UNECE Water Convention, which advances that doctrine by explicitly requiring states to adopt watercourse agreements and establish joint bodies. As written elsewhere (Rieu-Clarke & Rocha Loures 2012): For lawyers, this may seem redundant, as the duty to cooperate is widely regarded as part of customary international water law. However, in the context of global water negotiations, an effective and widely endorsed UNWC could make a major difference. For example, during negotiations at the 6th World Water Forum, one state raised the issue that the UNWC cannot even be referred to as a ‘convention’, because it is not yet in force. During the development of the ILC Draft Articles on Transboundary Aquifers, another state pointed out the need to avoid linking that instrument to the UNWC, because the latter [was] not in force and, therefore, [might] not reflect the status of customary law. More recently, the ‘water and sanitation’ section of the Rio document is permeated by a nationalistic tone: it refers to ‘actions within the respective national boundaries’ to protect ecosystems, while never mentioning transboundary water issues, watercourse agreements or the International Year of Water Cooperation. For those working on these issues, it was disheartening to follow the interstate discussions that preceded the adoption of that document, and which led to the deletion of the paragraph dealing with water cooperation at various levels. Arguably, if the UNWC had been in force, states would have less room to manoeuvre for downplaying the duty of watercourse states to cooperate and the role of international law in this context, leaving more time for discussions on substantive issues. This can be exemplified by the good progress made on oceans in Rio within the framework of international law, as reflected in UNCLOS.

Widespread ratification of both the UNWC and the UNECE Water Convention would create a strong legal mandate for the UN and other international organizations to support and advance transboundary water issues at the global level. Such a mandate is currently missing, which, again, might to some extent explain the slow and inconsistent progress in relevant

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international policy dialogues towards embracing elements of the community-of-interests doctrine. CONCLUSION It remains doubtful that the community-of-interests doctrine has established itself as a principle under international water law. The debate about its normative elements and their status is also ongoing. Many states, however, have entered into watercourse agreements that reflect at least certain aspects of a community of states. The prevailing understanding, therefore, seems to be that countries may choose to adopt all or some of those elements that form the normative content of the doctrine, but international customary water law does not require them to do so. Notwithstanding this conclusion, the overarching notion of a community of riparian states reinforces their duty to cooperate, including by acting jointly, where necessary, to ensure the equitable and reasonable use, sustainable management and adequate protection of international freshwaters and their ecosystems. It is so even if states have been slow to acknowledge the doctrine formally; have hesitated to discuss transboundary water issues; have refused to join existing agreements or river basin organizations; or have yet to accede to the UNWC. A question then remains as to whether current international law, with equitable and reasonable use at its core, is well suited to respond to the global water challenge. Historically, the sharp increases in the nonnavigational uses of international watercourses throughout the 20th century triggered significant progress in international law. This process culminated in the widespread acceptance of limited territorial sovereignty and equitable and reasonable use, as codified in the UNWC in 1997. As McCaffrey notes (2001: 68–9), The initial reaction of states to new problems tends to be to apply old rules to them. In view of states’ relative lack of experience with adverse transfrontier effects of non-navigational uses, it was only natural for them to apply to these problems the fundamental principles that did exist – in particular, that of territorial sovereignty. However, it is precisely the difficulty of applying the notion of territorial sovereignty to water flowing in an international watercourse that underlies the controversies between states that began to arise towards the close of the 19th century and increased in frequency well into the 20th.

Over the coming decades, water demands are expected to continue to grow, and climate change is likely to raise the risk of disputes among riparian states, while intensifying their interdependencies. As noted in the Budapest Statement, ‘what have been perceived as regional or local scarcity and

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resource allocation problems are already accumulating to the global scale’. Extrapolating from McCaffrey’s latter point, it is plausible that, in such a world, the various elements that form the community-of-interests doctrine would gain progressively a greater role in governing interstate relations. Were those elements to become increasingly reflected in state practice, they could eventually evolve into custom. It would be so because progressive transboundary water cooperation better enables states to tackle shared risks and opportunities associated with their common resource (Holmgren et al. 2013): There are a host of benefits derived from cooperation in transboundary regions: economic, environmental and social. Climate change adaptation and mitigation, flood and drought management are perhaps two of the most publicly recognisable benefits. Yet many more are in reach. The management of ecosystem resources, production of food, generation of energy, and the supply of water to municipalities and cities are also accessible through cooperation. There is also a suite of less tangible benefits as a result of cooperation: trust building, avoided conflict, trade and the integration of markets within regions. If policy makers and businesses choose to only focus their efforts within their national borders, they fail to mitigate serious water risks or to generate a wider range of benefits.

Is it then far-fetched to assume that, as countries grow increasingly interdependent and more aware of the advantages that can be gained from working cooperatively across an entire water system, their acceptance of a community of interests and the elements that spring therefrom would also increase? Beyond the confines of international water law, there is an emergent sense of a community of interests among all of the world’s nations (Handl in Hunter 2001: 324): [T]here exists today a growing and even more specific body of norms of international law bearing on sustainable development; and [...] a large number of these concepts clearly represent affirmative duties incumbent upon states and international institutions [...]. The increase in such affirmative obligations [...] mirrors the ongoing transition of the international legal system itself: from one imbued with the classical, voluntarist notion of international law – a system of limited restraints on the sovereign powers of states so as to ensure their mere coexistence – to one underpinning an emerging international community or, put differently, one of international cooperation toward achieving common objectives and goals.

In this sense, perhaps, a glimpse into the future could be extracted from a recent statement by China’s president (2013) – a country that has been known for not always cooperating as closely as co-riparian states might wish it would (Xi 2013):

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The world today is experiencing profound and complex changes. Countries have become increasingly inter-connected and inter-dependent [...]. The trend of the times, namely, peace, development, cooperation and mutual benefit, is gaining momentum [...]. As members of the same global village, we should foster a sense of community, of common destiny [...] so as to turn our global village into a big stage for common development, rather than an arena where gladiators fight each other [...]. In pursuing their own development, countries should promote the common development of all and expand common interests among them.

As noted by Wouters in 2013 (Wouters 2013): This focused regional outreach and consistent message aligned to China’s foreign policy is important. What remains to be seen is how it is played out in practice [...]. With China now the globe’s second largest economy, and growing, the increased pressure on water resources [...] must be addressed. Transboundary water resources shared with China’s many neighbours are largely unregulated by international agreements, which could cause regional tensions in neighbourly relations. International law provides clear guidance on how transboundary freshwater resources should be shared and managed.

In conclusion, it would be naive to expect riparian countries, especially the world’s hydro-hegemons, such as China, Turkey, Brazil and others, to completely relinquish the rights that emanate from their territorial sovereignty in relation to shared freshwaters. However, that does not mean that those same countries, compelled by the global changes that bring us all closer together in pursuit of our common destiny, would not gradually progress towards cooperation schemes more in line with a community of interests. Dellapenna and Gupta (2013:16–17) have faith in the development of the law in this field beyond limited territorial sovereignty, even if this may take time: As we move into the future, water is likely to be framed more and more in terms of its ‘global public good’ characteristics, its ecosystem services, and its links to energy, food, and climate [... . W]ater law is slowly moving forward with more and more regional agreements, more administrative law frameworks, more joint water bodies at all levels of governance from community through to global levels. Legal systems, however slow their development may be, have the authority of history behind them and may ultimately provide the vehicle for problem solving and conflict resolution in the 21st century.

In investigating the accuracy of such an assumption, an area for further research could be an analysis of geographic trends regarding the adoption of the doctrine, or elements thereof, in state practice, especially watercourse agreements.

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Building on the Chinese statement transcribed above, another question that emerges is whether a movement towards the community-of-interest doctrine would also affect states’ responsibilities towards their citizens. Would the doctrine require greater stakeholder participation not just at a local level but also internationally, since stakeholders form part of the larger community that depends on and could impact the resource? Would the notion of a community founded on the unity of a freshwater system serve as a legal argument to justify an emerging duty on riparian states to enable greater stakeholder participation in decision-making by joint bodies? These are questions that remain open for further investigation. NOTE * Research for preparing this work relied on invaluable assistance by two young international water lawyers: Meg Patterson and Elana Mendelson. I’m in debt to them for their dedication and commitment in this regard.

REFERENCES Books and articles Birnie, P.W. and Boyle, A.E., International Law and the Environment, 2nd ed. (Oxford: OUP, 2002). Benvenisti, E., ‘Collective Action in the Utilization of Shared Freshwater: the Challenges of International Water Resources Law’, Am. J. Int’l L. 90 (1996), p. 384. Bogdanovic, S., International Law of Water Resources: Contribution of the International Law Association (1954-2000) (Springer, 2001). Boisson de Chazournes, L., ‘The Role of Diplomatic Means of Solving Water Disputes: A Special Emphasis on Institutional Mechanisms’, in International Bureau of the Permanent Court of Arbitration. The Resolution of international water disputes: papers emanating from the 6th PCA International Law Seminar, 8 November 2002 (The Hague: Kluwer Law International, 2003), pp. 91–110 Caflisch, L. Regulation of the Uses of International Watercourses’, in: Salman, M.A.S. and Boisson de Chazournes, L. (eds.) International Watercourses. Enhancing Cooperation and Managing Conflict (Washington DC: World Bank, 1998), pp. 3–16. Caponera, D., Principles of Water Law and Administration (London: Taylor & Francis, 2007). del Castillo-Laborde, L., ‘Case law on international watercourses’, in: Dellapenna, J. and Gupta, J. (eds.). The Evolution of the Law and Politics of Water (Springer, 2008), pp. 319–36. Dellapenna, J.W., ‘Treaties as instruments for managing internationally-shared water resources: restricted sovereignty vs. community of property’, Case Western Reserve Journal of International Law 26/1 (1994), pp. 27–56.

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———, ‘The Customary International Law of Transboundary Fresh Waters, 1’ Int’l. J. Global Envtl. Issues 1/3–4 (2001), p. 264. ———, ‘International Water Law in a Climate of Disruption’, Michigan State Journal of International Law 17 (2008), pp. 43–95. Dellapenna, J.W., and Gupta, J. ‘The Evolution of Water Law Through 4,000 Years’, Villanova University School of Law, Public Law and Legal Theory, Working Paper No. 2013–3041, 2013. Available at: http://ssrn.com/abstract ¼2265029 Garcia, B., ‘Exercising a community of interests: a comparison between the Mekong and Amazon legal regimes’, Hong Kong Law Journal 39/2 (2009), pp. 421–56. Hildering, A., International Law, Sustainable Development and Water Management (Amsterdam: Eburon, 2004). Holmgren, T., Ja¨gerskog, A., Berggren, J., Joyce, J., ‘The global water crisis – why water politics matter for business security’, 2013. Available at: http://www. theguardian.com/sustainable-business/global-water-crisis-politics-businesssecurity Hunter, D., Salzman, J., Zaelke, D., International Environmental Law and Policy, 2nd ed. (Martinus Nijhoff, 2002). Kiss, A.C. and Shelton, D., International Environmental Law, 3rd ed. (Foundation Press, 2004). McCaffrey, S. ‘The UN Convention on the Law of the Non-navigational Uses of International Watercourses: Prospects and Pitfalls’, in Salman, S.M.A. and Boisson de Chazournes, L. (eds.). International Watercourses: Enhancing Cooperation and Managing Conflict (New York, NY: World Bank, 1998) McCaffrey, S. The Law of International Watercourses (Oxford, New York, NY: OUP, 2003). McIntyre, O., ‘International Law: Concepts, Evolution and Development’, in: Earle, A., Jagerskog, A. and Ojendal, J. (eds.), Transboundary Water Management. Principles and Practice (London: Earthscan, 2010). Rieu-Clarke, A. and Rocha Loures, F., Should we care whether the UN Watercourses Convention enters into force? (22 July 2012), at http://www. internationalwaterlaw.org/blog/2012/07/22/should-we-care-whether-the-unwatercourses-convention-enters-into-force-part-i/. Rieu-Clarke, A., Moynihan, R., Magsig, B., UN Watercourses Convention User’s Guide. IHP-HELP Centre for Water Law, Policy and Science (under the auspices of UNESCO) (Dundee: UNESCO, 2012). Rocha Loures, F. and Rieu-Clarke, A., The UN Watercourses Convention in Force: Strengthening International Law for Transboundary Water Management (New York, NY: Routledge, 2013). Salman, M.A.S., ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law’, Water Resources Development, 23/4 (2007), pp. 625–40. Savenije, H. and van der Zaag, P., Conceptual framework for the management of shared river basins; with special reference to the SADC and EU. Water Policy 2/1 (2000), pp. 9 –45. Tanzi, A. and Arcari, M., The United Nations Convention on the Law of International Watercourses (The Hague: Kluwer Law International, 2001).

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Tarlock, A., ‘International water law and the protection of river system ecosystem integrity’, Brigham Young University Journal of Public International Law 10/2 (1996), pp. 181–211. Teclaff, L., Water Law in Historical Perspective (Buffalo, CO: William S. Hein & Co., 1985). ———, ‘Evolution of the River Basin Concept in National and International Water Law,’ Nat. Res. J. 359 (1995), p. 36. United Nations Economic Commission for Europe et al. Transboundary Water Cooperation in the Newly Independent States, 2003. Available at: http://www. unece.org/env/water/documents/transbwatcoopnis_fin_e.pdf. UN Environment Programme, Challenges to International Waters: Regional Assessments in a Global Perspective (2006), www.unep.org/dewa/giwa/ publications/finalreport/giwa_final_report.pdf). Xi, J., Keynote speech, Boao Forum, Asia Annual Conference (2013), http://www. chinadaily.com.cn/business/boao2013/2013-04/09/content_16385850.htm Wouters, P (ed.). International Water Law: Selected Writings of Professor Charles B. Bourne (London: Kluwer Law International, 1997). Wouters, P., China’s Soft Path to Transboundary Water (2013), http://chinawaterris k.org/resources/analysis-reviews/chinas-soft-path-to-transboundary-water/

Cases Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 ICJ (20 April 2010). Case concerning the Auditing of Accounts between the Kingdom of The Netherlands and the French Republic pursuant to the Additional Protocol of 25 Sep 1991 to the Convention on the Protection of the Rhine Against Pollution by Chlorides of 3 Dec 1976, Arbitral Award (PCA, 12 March 2004), http://www.pca-cpa.org/showpage.asp?pag_id¼1156. Gabcˇ`ıkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 Sept. 1997, 1997 ICJ 7, no. 92. Lake Lanoux Arbitration (France v. Spain), Award of 16 Nov 1957, 24 ILR 101 (1957), reprinted in 1974 Y.B. Int’l L. Comm’n., 2/2, p. 195. Passage through the Great Belt (Finland v. Denmark), Provisional Measures 1991 ICJ 18 (Order of July 29 July 1991). State of New Jersey v. State of New York, 283 U.S. 336, 51 S.Ct. 478 (1931). Territorial Jurisdiction of the International Commission of the River Oder case, Judgment no. 16, 16 September 1929, PCIJ Series A no. 23, p 5–46. 21 US Opinion Attorney General 274, 280–3; 1895 WL 391 (USAG), reproduced in Hunter et al (2001), pp. 797–8.

Other materials Brazilian Federal Law 9433/97, 8 January 1997. Budapest Water Summit Statement: A sustainable world is a water-secure world. Budapest Water Summit (Budapest, October 2013).

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Charter of Water of the Senegal River. OMVS Resolution 005. Signed on 18 May 2002. Guinea, Mali, Mauritania, Senegal (Senegal Water Charter), http://iea. uoregon.edu/pages/view_treaty.php?t¼2002-SenegalRiverWaterCharter.EN. txt&par¼view_treaty_html (Unofficial English Translation). CNRH, Resoluc¸˜ao 22, de 24 de maio de 2002, D.O.U de 04.07.2002, http://www. cnrh.gov.br/index.php?option¼com_docman&task¼doc_download&gid¼67. Constituic¸˜ao da Repu ´ blica Federativa do Brasil de 1988 (Brazilian Constitution), http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, Articles 2(15). International Law Association. ‘Helsinki Rules on the Uses of the Waters of International Rivers’, in Report of the 52nd Conference (Helsinki: International Law Association, 1966). Available at: http://www.internationalwaterlaw.org/ IntlDocs/Helsinki_Rules.htm. International Law Association, ‘The Berlin rules on water resources’ in: Report of the 71st Conference (London: International Law Association, 2004). Available at: http://www.ila-hq.org/download.cfm/docid/B6F3AD1C-11B545A3-89534097AD1FEE95. International Law Commission, Report on the Workof its 46th Session, 2 May–22 July 1994. Vol. II(2), UN Doc A/49/10, http://untreaty.un.org/ilc/documentiona/ english/A_49_10.pdf. International Law Commission (prepared by Chusei Yamada), 2nd Report on Shared Natural Resources: Transboundary Groundwaters, UN Doc A/CN.4/539 (9 March 2004). Merriam-Webster Online Dictionary, at http://www.merriam-webster.com/dicti onary/community Ministerial Statement, 5th World Water Forum (Istanbul, March 2009), http://www. worldwaterforum6.org/en/news/single/article/the-ministerial-declaration-ofthe-6th-world-water-forum/. Ministerial Declaration, 6th World Water Forum (Marseille, March 2012), http:// www.worldwaterforum6.org/fileadmin/user_upload/pdf/Ministerial_Declarati on_Final_EN.pdf. Protocol on Shared Watercourses in the Southern African Development Community (SADC) Region (16 May 1995), http://www.internati onalwaterlaw.org/documents/regionaldocs/sadc1.html. Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC), 7 August 2000, 40 ILM 321 (2001), http://www.sadc.int/fi les/3413/6698/6218/Revised_Protocol_on_Shared_Watercourses_-_2000__English.pdf. Regional Strategic Action Programme for the Nubian Aquifer System (2013), http:// www.iaea.org/newscenter/pressreleases/2013/sap180913.pdf. Statute of the River Uruguay. Signed at Salto on 26 February 1975 (River Uruguay Statute), http://www.internationalwaterlaw.org/documents/regionaldocs/ Uruguay_River_Statute_1975.pdf. Treaty of the River Plate Basin. Signed at Brasilia on 23 April 1969. In force on 14 August 1970. Brazil, Argentina, Bolivia, Paraguay, Uruguay (River Plate Basin Treaty) http://www.internationalwaterlaw.org/documents/regionaldocs/ La_Plata-1969.pdf.

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UN Conference on the Human Environment, Stockholm, 5–16 June, 1972, Stockholm Declaration on the Human Environment. UN Convention on the Law of Non-Navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700 UN General Assembly, UNWC Voting Records, 51st Session, 99th Plenary Meeting, UN Doc A/51/PV.99 (21 May 1997). United Nations Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, 31 ILM 1312.

11

Reconciling Sovereignty with Supranationality: Lessons from the Nordic Countries

Julie Gjørtz Howden INTRODUCTION The sovereignty and independence of states are fundamental precepts of international law. Traditionally the concept of sovereignty ‘sees in the state the repository of summa potestas; it therefore defines the latter as supreme power within the state territory and as possessing complete independence in relation to third states’ (Hey 1966: 63). This notion of sovereignty may thereby present a direct contradiction to the concept of supranational management which is, as the term indicates, management above the domestic governmental level. By creating a supranational organization and transfering some of its exclusive powers to this organization, the nation state is reducing its unrestricted jurisdiction over the national territory and is thus no longer a repository of summa potestas in the traditional sense. This possible contradiction will be examined in the following sections of this chapter. The applicable law of international watercourses is largely customary, with equitable utilization and the obligation to avoid harm to other watercourse states among the leading principles (McCaffrey 2007, Caponera 2007). These principles create the basis for most international cooperation over shared watercourses today. In the extension of these principles, however, lies the idea of the common mangament of natural resources, where states collaborate in the management of the whole watercourse to achieve their common aims and to satisfy their individual needs. Common management is also a practical manifestation of the community-of-interest approach, of which the underlying idea is that the watercourse can be managed more efficiently as an integrated whole (Birnie et al. 2009). The community of interests goes further in challenging state sovereignty and expanding the area of management than binding principles of contemporary water law do, since the theory considers and manages the watercourse as an economic unit where the water is ‘either vested in the community or shared among the basin states, and accompanied by the establishment of international machinery to formulate

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and implement common policies for the management and development of the watercourse’ (McIntyre 2007: 28). The idea of the community of interest was introduced to the international community by the Permanent Court of International Justice (PCIJ) in the River Oder case in 1929. Here the Court declared that the idea of a community of interests became ‘the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others’. (PCIJ, River Oder case) According to the Court, the riparians’ common interest in the watercourse created a fundamental legal right of equality in utilization and status. This conclusion of the PCIJ was restated by the International Court of Justice in the Gabcˇ´ıkovo-Nagymaros case in 1997, which reinforces the idea that watercourse states must take their common interests into consideration when cooperating over a shared watercourse and that the river as a whole should be the subject of management. The Gabcˇ´ıkovo-Nagymaros judgment, and later also the Pulp Mills judgment, have extended the community of-interest concept to the law of nonnavigational uses of international watercourses. Although not considered a normative principle of international water law, the community of interest has been endorsed by the international community as an approach to international water management (McIntyre 2007). McCaffrey, however, claims that the PCIJ’s statement shows that ‘the community of interests can function not only as a theoretical basis for the law of international watercourses but also as a principle that informs concrete obligations of riparian states, such as equitable utilization’ (McCaffrey 2007: 150). Supranational management of an international watercourse has several common features with the community of interest-idea, especially the notion of the watercourse being managed as one unit and the inherent equality between the watercourse states. Both concepts require a close cooperation and commitment among the watercourse states and a different and more flexible conception of state sovereignty. The concept of supranational management is today often identified with the European Union (EU), although supranational technical organizations as the German Zollverein and the Danube Commission preceded the EU (Hey 1966). The EU is the first and remains the only international institution of its kind to create managing and legislative organs with a broad scope and the ability to make binding decisions for the member states. When discussing supranational management, the EU is therefore a natural association. As the international community is growing more interactive and the role of non-governmental actors is increasing, however, supranational management also takes place outside of the EU and is becoming a more current label for joint commissions governing international watercourses. This chapter will employ the term ‘supranational’ to describe

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this particular type of watercourse management, although the EU is not part of the examination. Cooperation over shared watercourses in the Nordic countries, and especially between Finland and Sweden, has been dominated by a strong notion of equity and of respect for the natural environment and its inhabitants. Several managing organs exist in the area, but the Finnish– Swedish Frontier Rivers Commission is of special interest to this study as it was to a large extent detached from the national governments. Since its creation in 1971, the Commission has been in charge of managing the shared watercourses between Finland and Sweden and its constitution and practice have included several elements of a supranational character. Despite this, Finnish–Swedish cooperation has undergone substantial changes the past few years; since the agreement between the riparians was modified in 2010 the Commission’s powers have been reduced and (re)nationalized, and the Frontiers Rivers Agreement between Finland and Sweden is no longer as progressive as it was when it first was adopted. From a historic perspective, however, the Finnish–Swedish Frontier Rivers Commission, established in ‘The Frontier Rivers Agreement of 16 September 1971 between Finland and Sweden’, is an interesting example of the co-existence of sovereignty and supranationality and will be used here as an illustration. The aim of this chapter is to present the model of common management of international watercourses through a supranational organ, and to highlight factors that can contribute to a reconciliation between the principle of state sovereignty and supranational powers. The following sections will first examine the concept of supranational management and what characterizes supranational organizations. This is followed by a short analysis of the dynamic or contradictions between supranational management and state sovereignty, before a concluding assessment of the constitution and practice of the Finnish–Swedish Frontiers Rivers Commission and how this body can serve as an example of reconciliation between these two concepts. WHAT IS SUPRANATIONAL MANAGEMENT? The supranational institution As opposed to ‘sovereignty’, the term ‘supranational’ is not a legal term, and does not have a clearly defined meaning. The expression, however, suggests management above the domestic governmental level where the management of a resource or activity is carried out by an organ that is superior to the state authorities. This organ may consist of representatives from the involved states, selected experts or other suitable candidates, and it will have its own statutes and constitution. The state governments transfer responsibility and power to the supranational organ, whichg will thereby possess the authority that the states no longer have – powers that

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exceed the competence of the national governments. The supranational body can govern a specific area, geographic, economic, political or other, on behalf of two or more states. Here the association to the community-ofinterest approach also becomes apparent as both management concepts administrate in areas where several states have a common interest in effective governance. Supranational government can be international, between a certain number of states; transnational, between states but on a lower level than national government; or global. Although such power transfer may seem alarming, supranational management is, as this chapter will show, related to state sovereignty through the consent of the involved states. Schermers and Blokker (Schermers & Blokker 2011) list six characteristics of supranational organizations: i) They have the power to make decisions that the member states are bound by. ii) The decision-making organ is able to act without the cooperation of all the member states. iii) It possesses the power to make rules that directly bind the inhabitants of the member states. iv) It has the power to enforce its decisions. v) The organ has financial autonomy. vi) There is no possibility of unilateral withdrawal. As no current organization comprises all these factors, Schermers and Blokker suggests that the term ‘supranational’ can be used in a relative rather than an absolute sense (2011: 57), meaning that the term characterizes an organ that comprises most of the factors on the list, as long as the supranational elements prevail. All of the six characteristics above are connected to the proportionate independence of the managing body and to the degree of interference from the member states concerned. The managing organ’s level of financial autonomy and competence to act without the consent of all the member states in a particular question could, for instance, determine whether the organization is supranational or merely international or intergovernmental. As an example, the United Nations is not a supranational body, although it has some supranational characteristics, like the capacity of taking decisions on a majority vote (Schermers & Blokker 2011). In a relative sense, an organization that possesses some of the main characteristics from Schermers and Blokker’s list will have a degree of supranationality. As the list indicates, delegation of the power to make binding decisions to the supranational organ from the national governments is one of the main features of a supranational body. With such transfer of power, the supranational managing organ is being charged with some of the functions

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otherwise reserved to states (Helfer & Slaughter 1997–8). According to the organ’s independent power, it may pierce the veil of the state by making decisions that are directly binding upon the states taking part in the cooperation and on their inhabitants. The supranational organ is recognized by its substantial freedom of management, detached from the national governments, while the national governments have in turn created the supranational organ and thus set out the framework for its management through its statute and constitution. The supranational management of a watercourse In the context of international water law, the object to be managed is an international watercourse. Every watercourse constitutes an indivisible system of water, a natural unit regardless of the state borders that have been drawn across it. Parts of this unit will be situated within the territory of two or more states, and thus be ‘shared’ between these states. A variety of aspects must be taken into account when managing and utilizing a watercourse; not only human needs, but also the preservation of the watercourse and its ecosystem, the sustainable use of the resources and the obligations deriving from international law to utilize the watercourse equitably and reasonably. In order to fulfil their international obligations, and to utilize the watercourse in an optimal manner, the states will have to cooperate. Cooperation is a necessary means to reach these obligations (McCaffrey 2007). According to Article 8 of the United Nation’s Convention on the Law of the Non-Navigational uses of International Watercourses, watercourse states ‘shall cooperate [...] in order to attain optimal utilization and adequate protection of an international watercourse’. Although the convention has not yet entered into force, the provision on cooperation in Article 8 are generally considered to be a codification of customary international law. The Article’s second paragraph also encourages states to ‘consider the establishment of joint mechanisms or commissions’ to facilitate their cooperation on the management of the watercourse. Such joint commissions can take many forms: it can be a technical commission examining and supervising the watercourse and its conditions; it can be an advisory commission guiding the governments in the development of the watercourse; it can be a managing body with substantial independent power. The commission will normally consist of representatives from the involved states, which in many cases will be scientists with special knowledge of the local conditions in the watercourse. The Mekong River Commission,1 The Zambezi Watercourse Commission,2 and the USCanadian International Joint Commission3 are examples of such joint cooperative bodies. In these cases, the management of the watercourse is, to a greater or lesser extent, left to the managing committees who govern the watercourse according to the mandate they have been given

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from the states. This can involve technical observations of the water conditions, counselling of the governments in decisions regarding the watercourse, or decisions regarding the utilization of the resource. In each case, however, the states retain the ultimate control over the watercourse. The possible supranational character of such a commission will rely upon its independent powers and on its degree of detachment from national authorities. Why engage in supranational cooperation? Regular cooperation over a shared watercourse involves meaningful engagement with other states with a view to entering into international commitments, and is both time consuming and work intense. In addition, supranational cooperation requires a greater transfer of, or limitation on, state sovereignty than other more traditional forms of international cooperation, since national governments transfer some of their exclusive powers to the governing organ. For states to be tempted by the idea of cooperation, especially supranational cooperation, the benefits they receive from such engagement must be greater than the cost and effort of the cooperation itself. The term ‘sovereignty bargain’ is employed by political scientists to describe the exchange in which obligations that limit state sovereignty are accepted when this can increase the effectiveness of sovereignty as such (Byers 1991). Litfin (1997: 170) claims that ‘states engage in sovereignty bargains in which they voluntarily accept some limitations in exchange for certain benefits’. States will accept a limitation on their sovereignty if the benefit they receive from doing so is sufficiently significant. The idea of sovereignty bargains presupposes a multidimensional understanding of the concept of sovereignty, not as a fixed principle but rather a field of meanings that are in constant flux (Litfin 1997). By relinquishing sovereignty in one dimension, for instance the control over a certain area or a resource, a state can enhance the overall effectiveness of its sovereignty (Byers 1991). The limitation on sovereignty, in contrast, cannot be so extensive that it disturbs the states’ identity or the governments’ democratic legitimacy. There may thus be a prosperous balance in the supranational cooperation between the smallest renouncement of state sovereingty and the largest possible revenue; a point where the sovereignty bargain is the most profitable for the state. A natural question is thus what possible benefits the states can acquire from supranational management. Sadoff and Grey substantiate the benefit-sharing idea by listing four categories of benefits: increasing benefits to the river, increasing benefits from the river, reducing costs because of the river, and increasing benefits beyond the river (Sadoff & Grey 2002). These categories illustrate how very different elements can play a part in the states’ motivation for cooperation over an international watercourse. Phillips et al. acknowledge the first three

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categtories from Sadoff and Grey, but argue that catalytic benefits beyond the river will be integrated in the first three categories (Phillips et al. 2006). These commentators, therefore, sort the benefits into three types – security, economic development and the environment. The following discussion will rely on Phillips et al.’s three categories of benefits, each of which can become catalytic in its own right (Phillips et al. 2006: 31). Security In areas of water scarcity, a shared watercourse can be a source of rivalry and conflict between the watercourse states. When a state uses the water resources in its own territory without regards to the consequences this can bring for the needs and utilization of other watercourse states, the utilization can bring both material and legal harm to these latter states. Unilateral utilization of the watercourse may in this way represent a threat to the water supply of the other riparians, as well as a threat to the watercourse’s environment. The fear of not receiving a sufficient amount of freshwater can affect good relations between riparians and ultimately lead to over-exploitation of the resource. Shifting the regime of management, from unilateral to supranational can enhance a shift in focus from defining disputes and rights towards strategies of common development (Brunnee & Toope 1997). Equitable and reasonable utilization of a watercourse is a principle of customary international law that restricts a watercourse states’ free usage of the parts of an international watercourse situated on its territory (McCaffrey 2007, Birnie et al. 2009). As mentioned earlier, the obligation to cooperate lies implicit in the obligation to utilize the watercourse equitably – it simply is not possible to secure equitable and reasonable utilization of an international watercourse without any form of contact between the watercourse states. A supranational organization will have a broader outlook onthe watercourse, its utilization and the needs of the watercourse states, and may thereby be better positioned to make holistic decisions about the utlilization, protection and preservation of the watercourse, based on all relevant factors and facts. These holistic evaluations may encourage the construction and management of common installations or projects in order to meet the needs of each state without excessive pressure on the resources. The supranational management could thus ensure an equitable and reasonable utilization of the watercourse for all the riparians involved, and contribute to secure a steady water supply. Whether the aim of the supranational cooperation is to achieve shared benefits, or the best possible conservation of the watercourse, such cooperation can also serve to ameliorate and reinforce the relationship between neighbouring states. A succesfull supranational institution will be sustained by the participant states’ desire to maintain the stream of benefits created by the common developments (Gryzbowski et al. 2010).

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Additionally, and most importantly, it may build trust between riparians that have a history of disagreement and dispute between them. Such trustbuilding will depend on the neutrality and capability of the supranational organ; whether it treats all states equally and respectfully and takes into account their needs and demands when making its decisions. An additional benefit may also be that states, when experiencing profitable supranational management, could be inspired to establish similar cooperation regarding other natural resources. Although supranational management is capable of providing security benefits, abandoning sovereignty over such a vital resource as a watercourse may be a very difficult decision to defend politically, especially in areas of water scarcity, where the struggle for water is genuine and the fear of deficiency is omnipresent. For many governments the risk of losing an already hard-won quantum of water will be of greater importance than the prospect of gaining larger benefits by giving away decision-making powers. If the supranational management can show promising benefits of increased security, however, the cooperation may be easier entered into, even for states facing security challenges. Economic development The next factor of benefit is the economic development that states can reach by engaging in supranational cooperation. Governing international watercourses involves a complex web of needs, concerns and obligations, unique to every watercourse and to every watercourse state. When establishing a regime of cooperation over a watercourse, most states will have more than one goal or concern in mind and more than one issue to be addressed in the agreement they reach (Ibid.). Supranational management can create a model where states achieve mutual gains from the cooperation, and realize several of their underlying goals. The probability of mutual gains will be the states’ motivation when establishing such cooperation, as well as their reason to maintain it. As put by Gryzbowski et al. ‘[w]hen states identify and develop opportunities with reciprocal sharing of benefits, they position themselves to sustain their agreement on the basis of the on-going benefits from doing so’ (Ibid. p. 143). Projects that may enhance mutual gains can be both physical installations on the river, like hydropower dams or flood protection measures, or they can be schemes to ameliorate water quality, etc. Prominent examples of such common constructions for mutual gains are the installations on the Senegal River. The governments of Mali, Senegal and Mauritania have established a managing committee, with clear supranational elements, in charge of developing and protecting the Senegal River Valley.4 The two installations on the river, the Manantali Dam and the Diama barrier, are jointly owned and managed by the Organization for the Development of the Senegal River so that each state owns an individual right to an

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indivisible part of these common installations, as well as a right to usage.5 In this manner the cost of construction and administration is shared among the riparians, and they all receive economic benefits from the common installations in terms of increased efficiency and reduced administrative costs, as well as a stable and secure supply of water and electricity. The environment The third and last category on the list of benefits identified by Phillips et al. is the positive effects that supranational management can bring to the watercourse’s environment. As seen above, the supranational commission manages a watercourse as one unit, and not as nationalized parts like national governments tend to do, and it therefore has the full overview of the resource – of the activity that is already carried out by the watercourse states, of future needs and aims, and of the conditions in the different areas of the watercourse or drainage basin. This supranational position makes the commission better suited to make decisions on how the watercourse can best be utilized, how this utilization should be carried out in the most efficient manner, where a project should be placed to achieve the best results, and also by whom it would best be executed. This not only ensures the most efficient utilization of the watercourse in terms of costs and benefits, but it can also protect the watercourse from over-exploitation, flooding or emaciation of its resources and ecosystem. The environmental benefits can also have significant social and economic importance, as the individuals who tend to be marginalized by economic development often are more directly dependent on the ecosystem for their livelihood security, and that a stable environmental flow is needed to maintain the ecosystem integrity (Phillips et al. 2006). *** These three categories embrace a wide range of factors that can be achieved through supranational management and the benefit-sharing principle. Certainly, the categories are not exclusive and there is an obvious catalytic effect between them that also reflects the complex and holistic picture of the management of an international watercourse. THE DYNAMIC BETWEEN SOVEREIGNTY AND SUPRANATIONALITY At first glance the concepts of sovereignty and supranationality may seem like perfect opposites. Sovereignty is the legal status of the nation state and the source of its free and exclusive powers within the state territory,

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whereas supranationality represents a limitation on this power and an authority that supersedes national governments on certain matters. It is essential to point out that these two concepts are not legally equal. State sovereignty is the very foundation for international law, and the legal status of the main subjects of international law (Roth 2004). Sovereignty is thus what defines the actors of international law at the same time as it is a condition for an equal interaction between these subjects. Supranationality, in contrast, is neither a legal status nor a principle of international law, but rather a term that signifies a certain type of international arrangement without any intrinsic normative content or any legal normativity. This means that the concept of state sovereignty legally outweighs supranationality in the sense that a sovereign state cannot enter into or be bound by the decisions of a supranational organ, without having previously agreed to this. Due to the status of state sovereingty in the international community, all forms of restriction upon it require the consent of the states involved. State sovereignty is thereby not eliminated by supranational management, but is rather a condition for it. Supranational management derives from state sovereignty in the form of the agreement of sovereign states to transfer powers to the supranational management organ. Supranational management can therefore not exist without the agreement of the states concerned. The traditional view of nation states as the subjects of international law, however, is undergoing changes. The international legal community is experiencing increasing participation from non-state actors such as nongovernmental organizations, intergovernmental organizations, transnational organizations and supranational organizations. This development necessarily contributes to a remodelling of the concept of state sovereignty: sovereignty is still reserved to nation states, but the actors (and subjects) of international law may now also include international organizations. Although international organizations can be bound by international rules and principles, and sometimes also become parties to conventions or other international agreements, a state’s participation in such an intergovernmental organization will depend on its consent and willingness to be a member and to be bound by the organization’s decisions. State sovereignty is thereby still omnipresent in international law, as a condition for all international cooperation and management, including supranational cooperation. No supranational organ can make decisions that are directly binding upon a state that has not consented to be bound. Supranational management requires a volountary transfer of power from the sovereign state to the managing organ, and this is how the two concepts can be reconciled; supranational management can only happen on the initiative of nation states and within the limits of the mandate they grant to the supranational organ. Having the hierarchy of these concepts in mind, it is time to examine their mutual co-existance through a practical example.

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THE FINNISH–SWEDISH FRONTIERS RIVERS COMMISSION Introduction The Finnish–Swedish Frontiers Rivers Commission (hereafter FSFRC or the Commission) was established in 1971 through the ‘Frontiers Rivers Agreement between Finland and Sweden’. The aim of this Agreement was to ‘ensure such use of the frontiers watercourses as to conform with the interests of their two countries and of the borderland’.6 In order to achieve this aim, the Treaty established a permanent commission, consisting of three members from both states, each member having different competences, and accorded the Commission with the responsibility to apply the Frontiers Rivers Agreement (hereafter the FRA or the Agreement). The FRA was in force until 2010, when it was replaced by a new frontiers waters agreement between Sweden and Finland, bringing significant changes to the old regime. The new agreement has removed most of the Commission’s decisive powers, and has to a large degree reduced it to an advisory commission that assists the governments in matters concerning the frontier watercourses. According to a bill from the Swedish Environmental Department, the reason for the reform was, inter alia, to meet the quantitative and qualitative demands of the EU Water Framework Directive (Swedish Environmental Department 2010: 49). Inevitably, the practice of one supranational management organ thus affects the constitution and execution of another. Even though the 1971 Treaty for the most part is no longer in force, it has historical interest and research value as an example of common management between two states, and it will therefore be the subject of investigation in the present chapter. In the following section it is essential to keep in mind that the northern region of Sweden and Finland that was governed by the FSFRC has a steady and fairly generous water supply and low population density. These factors certainly contributed to smoother cooperation over the utilization of the rivers, but the risk of pollution or deterioration of the watercourses and the importance of ecosystem preservation nonetheless existed, requiring close collaboration between the two states. As every watercourse is unique, the situation in the Nordic area may very well differ significantly from watercourses in other parts of the world, especially in areas with water scarcity or the threat thereof, and the Finnish–Swedish management regime would certainly need modification before being employed in other watercourses. In addition to its historic value, however, the practice of the FSFRC could be an inspiration or an ideal for states seeking to enter into a similar cooperation. Sovereignty in the Frontiers Rivers Agreement Sovereignty is not mentioned as a core concept in the 1971 FRA, and the Treaty does not refer to state sovereignty as an underlying condition or main rule. This stands in contrast to, for instance, the Boundary Waters Treaty between the United States and Great Britain (now Canada), signed

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in 1910, where the second article clearly provides that each of the parties ‘reserves to itself or to the several State Governments [...] the exclusive jurisdiction and control over the Use and diversion, whether temporary or permanent, of all waters on its own side of the line’. Where the Boundary Waters Treaty clearly manifests sovereignty as a point of departure for the further cooperation between the two states, therefore, the FRA makes no such reference or declaration. Although it would be premature to conclude on this basis that the Agreement indirectly renounces the states sovereignty, the lack of reference to sovereignty may be interpreted as an indication of the wish to create a common management regime in the area of the frontiers waters, with less focus on rights and divisions. This argument is supported by Article 5 of Chapter 1, which declares that in the frontiers rivers and their side-branches ‘an equal share in the water volume shall accrue to each side, even if a greater part thereof flows within one state than within the other’. This provision indirectly acknowledges state sovereignty by recognizing that there are two sides of the frontier rivers and two states sharing the water, but pre-eminently it emphasizes the equality between Sweden and Finland in their rights to the frontier’s waters and the fact that the water and the watercourses shall be considered as one unit that is to be utilized equitably by its riparians. Conclusively, the point of departure for the Treaty is the strong focus on development and conservation of the resources in the interest of both states equally, and not on the identification of individual state rights and sovereign powers. Was the FSFRC a supranational commission? The FRA provides the rules for the creation of the FSFRC and sets the conditions for its mandate and practice. The Commission was charged with granting permissions for projects in the watercourses, and with control and supervision of the conditions in the watercourse area. In regard to Schermers and Blokker’s list of supranational characteristics, the FSFRC fulfilled several of these; it was empowered to make decisions binding on the member states and on the inhabitants of the two states, and also set conditions for its permits.7 Further, the Commission could enforce its decisions, and examine and supervise the conditions of the watercourses as well as utilization and completed works.8 Finally, the FSFRC was not entirely dependent on the cooperation of the two member states, since most of the power to manage the utilization of the waters had been transferred to the Commission. The two national governments only gave their opinion on whether the Commission was evenly divided in deciding a matter9 or whether the matter concerned a project that ‘essentially affect[ed] the water conditions in a frontier river’.10 However, during the almost 40 years the Treaty was in force, this never took place (Fitzmaurice & Olufemi 2004). It is also important to note that the FSFRC did not have any legislative power, and could not change the FAR or make new rules

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concerning the competence of the Commission or the management of the watercourses. The supranational elements were thus not as strong as, for instance, in the EU, and a fair amount of authority still remained with the state authorities. A core element of supranationality is independence from national governments. If national governments have a direct or strong influence on the processes and decisions made by the cooperating organ, it may be more accurate to talk about an intergovernmental cooperation than a supranational one. But, as seen earlier, the FSFRC had significant independence from the national governments, as well as several other supranational characteristics. Although probably not the intention of the parties, the mandate and powers accorded to the Commission in the 1971 Agreement makes it natural to consider the FSFRC as a commission with strong supranational features. The following analysis will isolate three main factors that contributed to the balance between sovereignty and supranational authority in the case of the FSFRC: the Commission’s power to make binding decisions, the Commission’s free initiative, and the Commission’s holistic scope of management. Decision-making powers The power to make independent decisions is a prominent feature of a supranational organ. In order to manage a watercourse holistically on behalf of the riparians, the supranational commission must have a certain unrestricted room for manouver. This is also reflected in points i) and iii) on Schermers and Blokker’s list of supranational characteristics – the power to make binding decisions and to make rules that directly bind the inhabitants of the member states. Making binding decisions may be the competence that seems most antagonistic to state sovereignty since the state’s freedom of action is proportionally reduced. As a sovereignty bargain, however, such accepted reduction of state sovereignty allows states a more effective exercise of other attributes of the same sovereignty and the bargain may thus result in better and more effective management of the transferred area (Byers 1991). The following section will examine some of the prominent decision-making powers of the FSFRC and how they balanced sovereignty and supranationality. According to Article 13 of Chapter 3 of the FRA, constructions in water that were covered by the Agreement required a permit from the FSFRC. The term ‘construction in water’ included the construction of an installation in the water area, diversion of water and regulation of run off, and other measures ‘which may cause a change of the water level or discharge or of the depth or position of the water’.11 Additionally, according to the Article’s second paragraph, provisions relating to ‘construction in water’ applied likewise to measures in a water area that

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could affect the ground water, the building of a bridge or a pipe or other constructions over or under the water area. Permits were thus required for all types of construction in, over or under water and for projects that could interfere with the water quantity or/and quality. If a risk for pollution of a water area materialized, a permit from the FSFRC was also required for the ‘use of land, building or an installation’.12 When receiving an application for a permit, the Commission decided on the permissibility of the undertaking13 and could set special conditions for granting the permit.14 Consequently the Commission decided on virtually all matters concerning the utilization of the watercourses, and had full control of the exploitation of the resource and of the potential disadvantages that might result. This was clearly a supranational element, since the FSFRC was the only organ in charge of permitting constructions in the whole watercourse area. The FSFRC could also, with or without relation to a permit application, decide on the question of economic compensation by reason of a measure covered by the FRA.15 Such compensation was due if someone who was entitled under the Agreement to make use of another’s property or to appropriate water power belonging to someone else, or otherwise to take measures whereby the property of others suffered damage or encroachment, used property or caused loss, damage or encroachment,16 and the Commission decided the sum in case of disagreement.17 This provision established the most important matter falling within the judicial competence of the commission (Fitzmaurice & Elias 2004), since it directly affected entitled private parties in the watercourse area. Hence, the Commission also possessed the third characteristic on Schermer and Blokker’s list – the power to make rules or decisions that directly bind the inhabitants of the member states. Underneath this provision of compensation lay the basic human right to the protection of property, and the question of compensation only concerned measures that were permitted through the Agreement. The provision entitled the Commission to make binding decisions regarding the negative impact the Treaty could have on certain uses and rights. These decisions concerning economic compensation were also the only decisions that could be delayed in their execution by means of appeal. Article 15 of Chapter 8 stated first that ‘[a]ppeal against a decision of the Frontiers Rivers Commission may be made to the Water Rights Court of Appeal in the state concerned in respect of a question of compensation’, thereby establishing the right of appeal against the Commission’s decisions on compensation. Second, the Article’s second paragraph declared that when concerning matters other than compensation, the decisions of the Commission would have immediate legal force. Conclusively, decisions regarding economic compensation would only have legal force if they were not appealed within a certain time limit, whereas other types of decisions would have immediate legal force in spite of any lodging of an appeal. This is yet another example of the wide-

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reaching powers of the FSFRC: the Commission could make decisions that were immediately applicable and that could be executed without the approval of the two governments and without having been tried by the national courts. When the FRA was silent on a matter, the law prevailing in each state would apply.18 The FSFRC’s power was thereby restricted to the positive provisions in the Treaty and the substantial and procedural rules provided thereunder. The Commission could not create new procedures or principles on areas that were unregulated in the Agreement. Here the sovereignty of the two states restricted the Commission’s freedom of action – it could not expand its mandate without the consent of the Swedish and Finnish governments. This is thus an example of the presence of state sovereignty in this inter-state cooperation: the supranational powers extended as far as the mandate from the two nation states, and as soon as a matter fell outside of this mandate, it was regulated by the sovereign authority of the states. With its wide-reaching power to make decisions, the FSFRC was a strong authority in the management of the frontier rivers, and its powers were exercised on the basis of consent and trust on the part of the two member states. Once the Commission failed to fulfil its responsibilities in a satisfactory manner, the governments of Sweden and Finland could modify or reduce the Commission’s freedom of action. As long as the Commission acted in conformity with the provisions in the FRA, it functioned as a neutral organ to manage the watercourses in an optimal manner while the member states secured efficient and sustainable governance of their respective resources. The Commision’s decision-making powers were thus contributing to a profitable balance between state sovereignty and supranational management. Initiative A second factor that reconciled the supranational powers and the states’ sovereignty was the FSFRC’s freedom to act on its own initiative. In addition to the tasks appointed to the FSFRC in the Agreement and matters received from the national authorities or from private parties, the Commission also acted when it deemed this necessary. As stated in the Agreement, the FSFRC ‘shall itself decide on the examinations and investigations required in order that it may fulfil its engagements’.19 The FSFRC thereby operated as an independent organ, in accordance with characteristic number iv) on Schermers and Blokker’s list – the ability to act without the cooperation of the member states. Although the member states had contributed initially by creating the Commission and its competences, the FSFRC was not required to seek the consent of the national authorities when exercising its powers. When an application for a construction permit was submitted, the FSFRC had to ensure that the application was sufficiently examined before it decided upon the matter.20 This obligation could be interpreted as a

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natural elaboration of the permit-granting process, but it also enlarged the scope of the Commission’s independence. The FSFRC had to assess the specific investigations and examinations required by the nature of the application, and their frame of reference in this process was the substantial and procedural rules of the Agreement. In addition to the authority to make the actual permit decision, as well as the power to set conditions for such a permit, the Commission was free to act on its own initiative when ensuring that the project in question was in accordance with the rules of the Agreement. Likewise, the Commission could prescribe inspections on completion of the permitted works, and demand that this inspection was performed by an expert on the expense of the undertaker.21 The wide mandate and the free initiative given to the Commission regarding the granting of permits could secure the interests at stake in the watercourse both during and after the time of application, since the Commission was detached from national politics and priorities. In addition to specific inspections and examinations, the FSFRC had a general obligation to supervise the use of water and the water conditions in the frontier rivers. This implied regular examinations of the water quantity and quality in the various areas of the watercourses, as well as of the activity that was carried out in the area and the implications this may have for the watercourses’ environment. However, the text of Article 1 of Chapter 9 where this duty was codified also proclaims that this supervision should be exercised ‘in consultation with the proper authorities in each state’. An interesting question is thus whether this bond to the state governments represented a limitation on the Commission’s wide initiative and thereby a stronger presence of state sovereignty. The provision may indicate that the proper authority in each state had to be be notified about on-going or planned supervision, and such a duty to inform would clearly change the independent and supranational character of the FSFRC. The Agreement, however, gave no clarification of the role of the states’ authorities and it is thus not apparent whether the consultation referred to standard information of the Commission’s activity or a demand for permission to perform its duty to supervise the area of the frontier waters. The second paragraph of Article 1 of Chapter 9 casts light on this question by stating that the Agreement implied no limitation on the supervision that was exercised under the legislation of each state. Both Sweden and Finland could, and should, conduct national supervision of the border area parallel to the supervision of the FSFRC. This demonstrates a separation between the power of the national authorities and the power of the Commission, as well as a certain independence for both parties. The Commission was in charge of supervising the frontier’s waters, but the states could go on with their own routine supervision of the area unaffected by the activity of the Commission. It would also imply that the Commission could supervise the activity of the states themselves as part of its general

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supervision of the watercourses. With this in mind, it is natural to interpret this provision as requiring access to and/or exchange of information between the FSFRC and the two governments, and not as imposing limits on the free initiative and independent power of the Commission. Within its designated mandate, the Commission was free to act as it deemed right, while unrestricted by the sovereign powers of the two states, and was itself responsible for taking any measures necessary to fulfil its obligations according to the Agreement. The two states thus used their sovereign powers to create a space within which the Commission could operate quite freely. Through the carefully crafted Agreement, the states relinquished some of their exclusive control over the resources to be exercised by the Commission, but the Agreement would ensure that the Commission made decisions that were in accord with the states’ intent. A breach of the Agreement by the Commission would entitle the authorities of the two states to redefine the authorization of the Commission or to ultimately to regain control over the resources. Through the exercise of state sovereignty, Sweden and Finland thus created a sovereignty-free space where the Commission operated on their behalf. Scope of management The duties of the Commission stretched over a very wide range of areas and categories and included virtually all matters, both administrative and judicial, that could affect the area of the frontiers waters (Fitzmaurice & Elias 2004). This is also one of the factors that contribute to a wellfunctioning balance between the independent powers of the supranational commission and the sovereignty of the national states, since it makes management of the shared water resources more effective by ensuring a holistic management of the watercourses in conformity with the interests of the member states. The Commission’s broad range of powers was also in coherence with several of the characteristics from Schermers and Blokker, especially iv) – the power to enforce its decisions. As seen above, the FSFRC had substantial decision-making powers connected to the granting of permits for projects in the watercourses, and the regulation of the utilization of these. The permits for ‘construction in water’ covered the implementation of projects and installations, but also diversions or other measures in/under water or on land that could change the water level or conditions. If damage or encroachment was caused, or was likely to be caused, by a construction in water, the permit could only be granted if the project was found from a public or private point of view to convey an advantage that essentially outweighed the disadvantage.22 The Swedish and Finnish governments thereby gave the FSFRC a margin of appreciation when deciding whether an application should be accorded a permit or not. This is a significant responsibility, since the Commission had to identify the interests at stake, analyse their extent, and weigh these

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findings in order to realize an advantage that essentially outweighed the disadvantages. Further, the FSFRC had jurisdiction over fishing activity in the frontier waters, including the designation of fish ways – a free passage in the water that protects the natural migration of fish. Although this fundamental rule was clearly stated in the Agreement,23 the FSFRC was allowed to make exceptions from it as long as no danger to the protection of fisheries could be assumed. The main responsibility of the Commission in regard to fishing, however, was that of technical regulation of the activity: for instance the control of fishing tackle and dragnet fishing. Interestingly, as an activity fishing is mainly national – the local population fish within the territory of their own state, although the whole area is regulated by the FSFRC – but when it comes to certain fishing activities, such as salmon and trout fishing with dragnets, the Commission could decide that for a specific fishing-ground the fishery should be put to joint use across the national frontier provided that other interests did not suffer any harm. The FSFRC would set the rules for such a joint fishery and specify the area and the conditions for its use and administration.24 However, a decision to suspend state borders in this manner required agreement by the two state governments before it could have legal force. The same also applied for the decision to introduce a mandatory fishing licence for spoon-bait fishing in certain areas, regardless of the national frontiers. So although the main rules for the fishery had been established by the two governments through the Treaty, the Commission had been given the authority to survey that these rules were respected by the users of the frontier waters, and to make exceptions from them when good reason existed. As the power to suspend the national borders required the consent of the two governments, however, this confined the Commission’s powers in this particular field and was a manifestation of the sovereign powers still reserved the states. The Commission’s responsibilities further included protecting the watercourse area against pollution. The Agreement stated that solid or liquid waste or other substance should not be discharged into the watercourses to an extent greater than it permitted, ‘so as [not] to cause detrimental silting up, and injurious change of the quality of the water, damage to the stock of fish, reduced enjoyment for the population or a danger to their health, or other such damage or prejudice to a public or private interest’.25 This general prohibition on pollution also applied to the use of land within the watercourse area, as far as such use could result in pollution of the water.26 The FSFRC’s duties in relation to the prevention of pollution mainly involved supervision and evaluation of the effects of the activity that was carried out in the area. The Commission could adopt a decision to prohibit an activity that did not meet the required measures, or it could enjoin the person conducting the activity to take precautionary measures.27 Lastly, the Commission was also charged with the more general supervision of the watercourse area, including the adoption of regulations

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on all the above-mentioned fields – permits and conditions, constructions, fisheries, and pollution. The FSFRC surveyed that constructions that had obtained permits were carried out in accordance with the principles of the Agreement and the conditions set by the Commission. It supervised the fish stock and the quality and quantity of the water in the area. Through this activity the FSFRC had continuous control over and contact with the conditions and circumstances in the watercourses that made it well suited to manage the frontiers waters. The multiple fields of management allowed the Commission to act on all levels and across all matters that concerned the utilization, preservation and protection of the frontier’s waters. Although the FSFRC was free to make binding decisions and to act on its own initiative, the most significant and intrusive matters still required the agreement of the state governments. The Commission was responsible for keeping the governments informed of their activity, and the latter thereby had the possibility to change the Agreement, and the mandate of the Commission, if they deemed this necessary. Thus, in spite of the Commission’s broad scope of management and responsibility, state sovereignty was still a powerful tool in the hands of the two governments. This also illustrates the balance achieved between sovereignty and supranational management: the FSFRC could act freely within the limits set by the states, but the states remain empowered to recapture or modify the transferred power if the Commission no longer fulfils its mission. The wide scope of responsibility granted to the FSFRC probably made the management of the frontier rivers more efficient and more in accordance with international environmental standards. CONCLUSION The FRA created a comprehensive system of management that aimed to secure the interests of Sweden and Finland and their inhabitants as well as the conditions in and around the watercourses. The system was built on a clearly-defined mandate granted to the FSFRC, based on a measure of trust from the two governments that the Commission would act as a neutral body that would manage the watercourses in the best possible manner. Through the provisions of the FRA and the practice of the FSFRC, several of the benefits identified by Phillips et al. become apparent. Although the economic benefits from the development of common projects was not an initial motivation for the Swedish–Finnish cooperation, benefits relating to water security and the watercourses’ environment are evident. The neutrality and independence of the Commission ensured its credibility both among the governments and the local population, and may have contributed to a reduction of potential rivalry and conflict over the utilization of the resources. Among the security benefits, the effects of the

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Commission’s wide-reaching powers established stability and homogeneity in the management of the resources. In the field of environmental benefits, the Commission’s management secured the same standards and rules across the whole watercourse area, both in water and on land, and thus preserved the whole ecosystem in the region. At the heart of supranational resource management is the idea of sovereignty as a multidimensional principle where different aspects can be compromised, or even relinquished, without undermining the state’s authority completely. The concept of state sovereignty is thus not a rigid and absolute principle but more a flux of aspects and dimensions, allowing states to engage in committable bi- and multilateral cooperation where some dimensions of sovereignty are sacrificed on account of effective management of the area in question and more efficient overall sovereignty for the involved states. In the context of international watercourses, such sovereignty bargain would imply renouncing some of the state’s control over the resource and some of its power to make decisions regarding its utilization to an organ that the involved states have used their sovereign powers to create and which operates within the framework set by these same states. Sovereignty will thus be a compound of different powers and privileges that can be negotiated and modified according to the requirement of the different situations, without depriving the states of their overall authority and independence. NOTES 1 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, 1995. 2 Agreement on the Establishment of the Zambezi Watercourse Commission, 2004. 3 Treaty between Great Britain and the United States relating to Boundary Waters and Boundary Questions, signed at Washington, 1910. 4 See the ‘Charter of Water of the Senegal River’, 2002; ‘Convention conclue entre le Mali, la Mauritanie et le Se´ne´gal relative au statut juridique des ouvrages communs’, 1978. 5 Convention relative au statut juridique des ouvrages communs Article 4: ‘les Etats coproprie´taires ont un droit individuel a ` une quotepart indivisible et un droit collectif d’usage, de jouissance et d’administration de l’ouvrage commun’. 6 Extract from the preamble. 7 FRA, Article 13 of Chapter 3; Articles 3 and 4 of Chapter 6. 8 Ibid, Articles 1 and 7 of Chapter 9. 9 Ibid, Article 13 of Chapter 8. 10 Ibid, Article 13 of Chapter 3. 11 Fitzmaurice and Olufemi, 2004. 12 FRA, Articles 3 and 4 of Chapter 6.

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FRA, Articles 3 and 4 of Chapter 6. Ibid, Article 10 of Chapter 3. Ibid, Article 1 of Chapter 7. Ibid. Ibid, Article 2 of Chapter 7. FRA, Article 8 of Chapter 1. Ibid, Article 3 of Chapter 2. Ibid, Article 7 of Chapter 8. Ibid, Article 7 or Chapter 9. Article 3 of Chapter 3. Article 2 of Chapter 5. Article 6 of Chapter 5. Article 1 of Chapter 6. Article 3 of Chapter 6. Article 14 of Chapter 6.

REFERENCES Birnie, P., Boyle, A. and Redgwell, C., International Law and the Environment. 3rd ed. (Oxford: Oxford University Press, 2009). Brunnee, J. and Toope, S., ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’, The American Journal of International Law, 91/1 (1997), pp. 26–59. Byers, B., ‘Ecoregions, State Sovereignty and Conflict’, Bulletin of Peace Proposals, 22/1 (1991), pp. 65–76. Caponera, D., Principles of Water Law and Administration. 2nd ed. (London: Taylor & Francis, 2007) Cassese, A., International Law. 2nd ed. (Oxford: Oxford University Press, 2005). Fitzmaurice, M. and Elias, O., Watercourses in Northern Europe – A Model for the Future (The Hague: T.M.C. Asser Press, 2004) Gryzbowski, A., McCaffrey, S. and Paisley, R.K., ‘Beyond International Water Law: Successfully Negotiating Mutual Gains Agreements for International Waterocourses’, Global Business and Development Law Journal, 22 (2010), pp. 139–54. Helfer, L.R. and Slaughter, A., ‘Toward a Theory of Effective Supranational Adjudication’, Yale Law Journal, 107/237 (1997–8), pp. 273–391. Hey, P., Federalism and Supranational Organizations, 1st ed. (Urbana: University of Illinois Press, 1966). Litfin, K., ‘Sovereignty in world ecopolitics’, Mershon International Studies Review, 41/2 (1997), pp. 167–204. McCaffrey, S., The Law of International Watercourses (Oxford: Oxford University Press, 2007). McIntyre, O., Environmental Protection of International Watercourses under International Law (Farnham: Ashgate, 2007). ¨ jendal, J and Turton, A., Transboundary Phillips, D., Daoudy, M., McCaffrey, S., O Water Cooperation as a Tool for Conflict Preservation and Broader Benefitsharing (Gothenburg: Ministry of Foreign Affairs, Sweden, 2006).

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Roth, B.P., ‘The Enduring Significance of State Sovereignty’, Florida Law Review, 56 (2004), pp. 1017–50. Sadoff, C. and Grey, D., ‘Beyond the river: the benefits of cooperation on international rivers’, Water Policy 4 (2004), pp. 389–403. Schermers, H.G. and Blokker, N.M., International Institutional Law. 5th revised ed. (Leiden: Martinus Nijhoff Publishers, 2011). ˚ dsremiss 18.03.2010, 2010. Swedish Environmental Department, Bill/Lagra

12

Integration of the Right to Water in International Law: Circumventing and Bypassing State Sovereignty

Sylvie Paquerot INTRODUCTION The vital character of some elements in our environment, over and above their purely economic expediency, forces us to rethink the way in which we categorize and represent nature. Nowadays in international law, water is always considered as a natural resource1 to which the principles of sovereignty and free trade apply.2 But water, by its very nature, is our planet’s circulatory system. Indeed, some consider it as ‘the blood of the Earth’; it can thus hardly be reduced to such a restrictive definition. Paradoxically, however, it is from the standpoint of human rights rather than that of international environmental law that issues related to freshwater resources will become more acute at the dawn of the new millennium. The emergence of access to water as a human right in an area where it had always been considered strictly as a question of national jurisdiction or interstate relations gave rise to almost two decades of widespread international political confrontation. This confrontation was outside the normal frame of the liberal negotiation through which states had been dealing with the world’s foremost environmental issues until today (Conca 2006). They controlled neither its agenda, nor its evolution. The recent integration of a human right to water in international law thus appears unusual on many fronts. First, it may bear repeating that water remains a sovereignty issue par excellence. States have always been reluctant to have their conflicts concerning this vital resource settled by a third party or to adhere to common laws. Creating an international convention to codify the rules surrounding usage of international watercourses took almost 30 years (the New York Convention 1997), and it is still not in force because many signatures are still missing despite the pressure put to bear by various actors. Moreover, few ‘new’ rights have acquired effective legal recognition in the international human rights system in the last few decades despite many claims to that effect since the

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adoption of the Universal Declaration of Human Rights (UDHR 1948) and the two related Covenants (ICESCR/ICCP 1976). As the right to safe drinking water and sanitation3 was not originally expressly recognized in international human rights instruments,4 some states still dispute its existence.5 It has, however, witnessed many developments in the past decade, both within the UN’s human rights system and in the legal texts of many states.6 Though in principle, only states can create rules at an international level in the Westphalian order, access to water as a human right is formally integrated in the UN’s human rights system, which contributes to place the issue of water within a global perspective,7 because upholding human rights should theoretically be a universal preoccupation and a common responsibility as defined by the United Nations Charter and the UDHR. Recent history of the integration of the right to water in international law shows that numerous actors (Kiefer & Brolmann 2005) in the debate, whether they be international organizations, social movements, nongovernmental organizations (NGOs) or economic players, have in fact overtaken the discussion on the common good and have appropriated the political debate, thereby forcing states to go above and beyond their role of representing interests, on a contractual mode, which had historically been theirs on the international arena. In order to analyse the scope of the legal integration of the right to water in international law from the point of view of state sovereignty, we will proceed on three fronts. First, we will trace the course of the adoption of a resolution by the Human Rights Council (HRC), on 30 September 2010 confirming the existence of a legal obligation for those states that signed the ICESCR with regards to that right (HRC 2010). Second, we will attempt to determine the legal and political nature of human rights and analyse the consequences that can be drawn from it with regards to sovereignty. Third, we will expand the perspective by resituating the Berlin Rules within the analysis to again examine the issue of sovereignty but this time from the point of view of the peoples’ right to self-determination. Our hypothesis is that the introduction of human rights in international law forces us to examine yet again the basic tenets of international law and of the Westphalian order from which it stems and, consequently, that it introduces a transformation of the criteria for legitimacy within the creation of the law and, thus, of the nature and scope of sovereignty.8 A BRIEF HISTORY The recent history of international debates surrounding water could, in itself, be the subject of a separate report and could be studied from various perspectives. We have chosen to examine the milestones that illustrate i) the transfer of this issue from the sphere of interstate negotiation to that

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of public debate; ii) the relative marginalization of the whole question of sovereignty – whether it be absolute or shared – with regards to another contradiction needing to be resolved in that public debate: is it a human right or is it a commodity; and iii) the various steps for integration within the universal legal system of human rights outside the usual methods of creation of laws by states. An in and out evolution: from Mar del Plata to the 1997 Convention We know that states gave themselves a specific arena to codify international rules: the International Law Commission (ILC). It is within this organization that for three decades the codification and the progressive development of international watercourses law were carried out and eventually concluded with the adoption of the New York Convention of 1997.9 It is also there that states chose to continue their discussions to establish rules that would apply to transboundary groundwaters. The integration of concerns related to water by other international institutions, however, has also evolved since World War II; and it experienced an important turning point in the 1970s. From that date, these concerns extended beyond interstate relations and entered the realm of human and environmental issues that those interstate relations would have to integrate. Issues surrounding water were first considered an environmental issue in Stockholm in 1972. Then, as an answer to the wishes expressed during the World Food Conference (in 1974) and the World Conference on Habitat (in 1976), the United Nations General Assembly (UNGA) organized the first world conference related specifically to issues concerning water in Mar del Plata in 1977 (UNGA 1975) where all matters concerning water were examined, including for the first time, the human challenge of accessing water in a sufficient quantity and quality, which would become a central issue. all peoples, notwithstanding their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality sufficient for their basic needs [...] it is universally recognized that the possibility of accessing this element is essential to human life and the full development of human beings as individuals and members of society. (Mar del Plata 1977 – author’s translation)

The decision to adopt an international decade on this theme (1981–90) right after the conference, in order to place a priority on the goal of giving access to drinking water to all human beings,10 was followed by numerous interventions on this issue, and by the General Assembly itself. During that period, the importance of international financing for water resources signalled the true recognition of a need for cooperation (Sohnle 2002: 88–9)

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which would go beyond matters being discussed at the ILC and which called upon numerous stakeholders other than the states themselves. After noticing that the goal of providing safe drinking water and sanitation to the world population had not been reached at the end of the first International Water Decade, the General Assembly called for increasing efforts in order for this objective to be reached by 2000. After the Rio Summit of 1992, the General Assembly declared 22 March as ‘World Water Day’ (UNGA 1992). Two international events marked the end of the decade: the Montreal Conference and the Delhi Conference. At that time, the reflection was polarized by the Bruntland Report on ‘Our Common Future’ (Brundtland 1988) almost on the eve of the Rio Summit, but also at a time when economic liberalism was being significantly redeployed.11 In that first half of the 1990s the first large-scale privatizations of water supply and sanitation had just taken place, including in Manila and Buenos Aires, and the text of the World Bank’s policy on this issue was coming off the presses (World Bank 1994). This growing trend towards market solutions to solve water problems would bring the integration and an increasing ‘politicization’ of interventions surrounding this issue. Confrontation between market and human right... but where does sovereignty fit in? The long decade from 1990 to 2002 In 1990, at the end of the first International Water Decade, an international meeting of NGOs was organized by Oxfam International and marked the adoption of the Montreal Charter.12 This charter was tabled as a reference document for the Global Consultation on Drinking Water and Sanitation, which was held that year in Delhi. It would mark the first time when nonstate actors, or at least some of them, would attend an international forum as a group rather than separately. The Montreal Charter opened with a reiteration of the right to access safe drinking water and the recognition that it could not be separated from other human rights. It described access to water and sanitation firstly as a political question (Principle I) and called for a ‘reform of the dominant economic development modes which waste and pollute our planet’s limited resources’ (author’s translation). In 1992, shortly before the Earth Summit in Rio, the second session of the International Water Tribunal13 in Amsterdam dealt with the problems of water management in Asia, Africa and Latin America, and integrated the question of the populations’ right to these resources, thus expanding the specific problem of pollution which had always been its main topic. The Tribunal relied on a declaration based on existing instruments (resolutions from the General Assembly of the United Nations, declarations from international conferences, work done by the International Law Commission) and prepared by a group of legal experts from various countries (Declaration of Amsterdam 1992).14 The Tribunal applied the principles

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thus established to all water resources rather than solely to transboundary resources,15 all of which pointed to a clear desire to transfer the issue of water out of the narrow definition of interstate relations. (Declaration of Amsterdam 1992: 8) Among other things, the declaration repeated and/or declared the principle of intergenerational equity, that of the right to water in a sufficient quantity and quality as a human right, and that of the inappropriable character of water, a common resource that should rest within humanity’s stewardship. That same year, Steven McCaffrey, who had just left his position as special reporter with the ILC, published an article analysing the implications of recognizing this right (McCaffrey 1992). The International Conference on Water and Environment (Organisation me ´te ´orologique mondiale 1992) held in Dublin just before the Rio Summit, established the following principles: ‘Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment’ (Principle I); and: ‘Water has an economic value in all its competing uses and should be recognized as an economic good’ (Principle IV – emphasis added). Under this principle, ‘It is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price’. Thus, it was in Dublin that the notion of ‘economic good’ as applicable to water resources was defined.16 It would be present in almost all documents prepared by the UN on this issue from that point on, even if the principle of the ‘right to access’ remained present. In the Dublin Principles, it was qualified as a ‘human right’ even more clearly than in Mar del Plata. It should be noted, however, that contrary to a widely-held view the Dublin Conference was not a ministerial conference but rather one of experts, and that the states that met in Rio a few months later refused to endorse the Dublin Statement, which nevertheless remained the most influential document on this issue in the following years. In Rio, water was not expressly mentioned in the final declaration but more specific principles with regards to water resources were dealt with in Chapter 18 of Agenda 21. It should be noted that at that time, however, the states rejected a proposal for a global convention on water because it seems that they did not wish to adopt a formal regulatory framework for this vital resource.17 But these debates still centred around two principles that would lead to a confrontation in the following years: human right or economic good rather than human right and economic good as proposed by the Dublin Conference. The World Water Council (WWC), which sees water as an economic good, was created in 199418 and represented one of the main dissenters of the ‘states’ reserved area’ since while those states attended the ministerial conferences the WWC organized, they did not control its orientation or its agenda. This polarization increased at the end of the 1990s and by the beginning of the new millennium, two visions appeared with, on the one hand the progressive integration of the ‘market-centred’ vision among the UN institutions and, on the other hand, a generalized convergence

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of NGOs towards the wish to recognize access to water as a human right despite the differences that persisted between them on other fronts. When the WWC organized the first World Water Forum in Marrakech in 1997, the king of Morocco, who hosted the meeting, predicted that water would be the oil of the twenty-first century. That same year, a report tabled at the UN General Assembly called for an approach that would be geared to the market in order to manage water supply, adding that water should be a merchandise whose price should be defined by supply and demand (Lewis 1997: 2). Accordingly, ‘[...] water markets provide an equitable way for water to move to its highest and best use in a fair and impartial process’ (Simpson & Ringskog 1997: 5). In the wake of that first forum, leading figures from various countries went against these orientations.19 Launched in 1998 in Lisbon, Valencia and Brussels, the ‘Water Manifesto: The Right to Life’ marked the birth of the World Water Contract, under the presidency of Mario Soares, former prime minister of Portugal.20 Though numerous groups were against the overriding directions taken with regards to water,21 this initiative acted as a catalyst and a rallying point in order for them to find common strategies. It also marked the start of a kind of ‘common front’ for the right to water. That same year also saw the arrival of the water issue in the UN’s human rights system.22 The Second World Water Forum, held in The Hague in 2000, marked an important period in this confrontation. Here, UNESCO and the UN Development Programme, which were both active members of the World Water Council, supported the activists demanding that the right to water be included in the Ministerial Declaration (Taithe 2000: 221). At that time, the point of view of those NGOs concerned with the peaceful settlement of international conflicts around water also included a claim for the right to water. Such was the case for the International Green Cross and for the Committee for National Sovereignty and International Watercourses’s declaration which stipulated that ‘[...] the needs of people and nature must be given priority and made inviolable. The interests and the rights of current and future generations would thus be preserved [...]’ (National Sovereignty and International Watercourses 2000: 107).23 The Committee presented various proposals including the formal recognition of the right to access to water as a human right and the creation of an Ombudsman to settle disputes (National Sovereignty and International Watercourses 2000: 113). Faced with a controversy made especially visible during the forum held in The Hague, the non-state actors and some international institutions tried to bring back the question of water on the international public agenda, in view of the Earth Summit which would be held in Johannesburg in 2002. At that time, UNESCO presented an important concept paper on the ethical aspects of world water resources and their use (UNESCO 2000) which clearly stated the human right aspect of access to water (Ibid: 39) and brought to the forefront the dangers of attaching a market consideration to this vital resource (Ibid.: 32): ‘Pour parler comme

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les e´conomistes, la demande de droit s’accroıˆt’ (Rouland 1991: 25). But the states did not take them into account in Johannesburg. Integration outside the contractual approach in the human rights system: a lost battle for sovereignty That same year, conscious of the debate raging at the international level, the UN Committee on Economic, Social and Cultural rights (CESCR), charged with monitoring the implementation of the covenant, made public its General Comment No 15 (CESCR 2002) outlining the nature and scope of the right to water as a human right and bringing back into the fold those governments that hesitated to recognize it as such. The first paragraph of this comment was quite clear as to the motives of the Committee, which had become exasperated by the states’ bad faith with regards to their obligations as stated in the International Covenant on Economic, Social and Cultural Rights from which, for the Committee, the right to water derived. With this formal intervention by the Committee in 2002, the economic good/human right polarization had thus found its first ‘legal solution’. Since then, almost all players who intervened in the issue of water have recognized that it was truly a human right,24 which while not settling the whole of this contradiction, at least displaces it.25 With that observation in place, the human rights system and its various organizations took charge of the meticulous legal work surrounding this ‘new right’. In 2008, the HRC named an independent expert who would study this question and produce numerous and extensive reports in the following years. The Council itself regularly adopted resolutions on this matter, the most important of which was that of 30 September 2010, mentioned above, in which it confirmed the existence of a legal obligation towards that right for those states that had signed the ICESCR, and which followed the adoption of the UNGA resolution of July 2010.26 Though the legal character of the resolutions adopted by the UNGA and by the HRC may be questioned from a voluntarism and positivist standpoint, at least two decisions by national tribunals in the months that followed were explicitly rendered on the basis of those resolutions in order to satisfy claims by marginalized groups,27 all of which illustrated the cross-penetration of the internal and the external domains as well as the effect of international norms on the states’ reserved area (Kolb 2005: 123–4). Thus, we can see that: dans l’environnement global, le droit ne de´signe plus seulement, comme dans le mode`le de la souverainete´, un cadre de re´fe´rence qui de´termine ce qui est permis ou interdit [...]. Le droit devient lui-meˆme un enjeu de luttes et un moyen d’action pour les joueurs, qui ne se contentent plus seulement de jouer des coups conformes ou non aux re`gles, mais tentent e´galement de cre´er ou de modifier les re`gles a ` leur avantage ou pour faire progresser les objectifs dont ils poursuivent la re´alisation. (Frydman in Eberhard 2010: 91)

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When reading this brief overview, it becomes clear that the rallying point for many non-state and institutional actors around the affirmation of the human right to water in reaction to market proposals forced a large majority of states to take it into account and recognize it as such. Placing the issue on the agenda all the way to its integration within the international system was never submitted to the sovereign will of the states that participated in these debates in a scattered manner. We know how difficult it is for states to adopt rules in the spirit of general interest, and how reluctant they are to submit their sovereign will to such rules. In the area of international watercourses, for example, the norms integrated to the New York Convention are largely customary and even if the ILC relied on the Helsinki Rules adopted by the International Law Association as early as 1966, it failed to integrate true developments such as using the concept of hydrographic basins. Despite the fact that legal doctrine, especially the International Law Association (ILA)/ILC work, has constantly held that among competing uses, water needed to satisfy ‘natural wants’ such as drinking, cooking, washing, food production and others required for the immediate sustenance of the household must be considered first – the very themes that constitute the preoccupation of contemporary discourses on human right to water –, the discussions in the 6th Commission on the ILC draft in 1991 illustrated that states were not willing to accept a clear ‘order of priority’. For many authors (Inter alia: Caflisch 1997: 752, Sohnle 2002: 312, Golay 2001: III.2.c), from the ILC commentary on Articles 5, 6 and 10, we can conclude that no use has any clear priority and, in the case of conflicting uses, it has to be solved taking into account Article 6 factor’s list, where human needs are one among others. The recognition of a human right to water would never have advanced under such conditions. We also know, and it has been said, that in the field of environment, the states clearly refused to consider the pertinence of a world convention on water similar to other global environmental issues. How, then, can we understand the integration of the right to water in international law? What does it mean from the point of view of the Westphalian concept of state sovereignty? WHICH LAW FOR WHICH ORDER AT THE INTERNATIONAL LEVEL? Il existe un lien direct, e´troit entre le respect pratique des droits de l’homme dans la socie´te´ ou ` il vit et l’e´tablissement d’un ordre international ve´ritable. (Cassin 1951: 243)

This section is devoted to the international order and its foundations. More precisely, we will propose the idea that with the creation of the United Nations, two contradictory principles of order now structure our world at

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the international level. In fact, even if the founding principles of the Westphalian order are clearly present in the United Nations Charter – these principles being state sovereignty and free trade – the inclusion of the principle of respect for human rights introduces an insurmountable contradiction. The adoption of a UDHR appears to contradict directly one of the main principles of the previous order, namely sovereignty, since it cannot be subjected to rules to which it has not agreed. From Kelsen’s perspective, this could be regarded as the rivalry between two grundnorm or fundamental rules (Kelsen 1953). In other words, we maintain that the legal system of human rights cannot move within the traditional framework of classical interstate law and that the human rights system, because of the ‘non-contractual’ nature of its norms (2.1) and despite its limits, offers an area where a ‘common’ law may be created where Westphalian sovereignty would lose its effect despite its usual rhetorical invocation. In order to understand how orders with differing or opposing foundations may coexist, it may be useful at this point to reiterate the distinction made by Gilles Bertrand between the notion of international order and that of world order: L’ordre international est celui des traite´s de Westphalie. Il vise essentiellement a ` pre´server l’E´tat en tant qu’unite´ primordiale du syste`me contre les contestations infra-, trans-, voire supranationales. ‘L’ordre mondial est plus large’ dans la mesure ou ` il inclut l’ordre a ` l’e´chelle interne ou locale, fourni par les E´tats individuellement, et [...] l’ordre a ` l’inte´rieur du syste`me politique mondial au sens large, dont le syste`me intere´tatique est seulement partie. L’ordre mondial est plus fondamental et primordial que l’ordre international parce que les unite´s ultimes de la grande socie´te´ de toute l’humanite´ ne sont pas les E´tats (ou les nations, tribus, empires, classes ou partis) mais les eˆtres humains pris individuellement. (Bertrand 1977: 100–1)28

From this perspective, the public order of human rights, that of Article 28 of the UDHR, lies within the world order rather than within the international order as such, even if numerous states have formally recognized its norms in conventions and treaties. In fact, almost without exception, states try to maintain the principle of their sovereignty with regards to the implementation of those rights. It thus represents a confrontation between two orders, a political confrontation. This contradiction is embedded in the United Nations Charter and it will have to be resolved in the political arena. The non-contractual nature of human rights From a legal theory standpoint, many consider that human rights essentially belong to the constitutional universe (Inter alia: Duhamel 1993, Rouyer 2003, Badie 2002, Chevrier 2008) and constitutionalism, which developed largely in the second half of the twentieth century, supposes

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both a hierarchy of standards and the subordination of power to law. It is linked to the E´tat de droit. It is seen today essentially as constitutional democracy where even the law, which emanates from popular sovereignty, must be subjected to a constitutionality control.29 Thus, for constitutional experts, the law can only express general willingness through compliance given to the Constitution: it is not sovereign since it is subjected to the control of that compliance with standards placed above it. The sovereignty referred to here is that of the people; it is, in a way, divided and structured between ‘perpetual people’ and ‘current people’,30 the first one taking precedence over the second one. However, if an authority can establish or even impose a Constitution according to the legal definition of constitution that takes effectiveness into account, this constitution becomes substantial (Duhamel 1993: 19-20). It stems from the notion that people constitute the power in order to consecrate their equality and preserve their freedom. Thus, in this conception, ‘a constitution is not the act of a government, but of a people constituting a government; and government without a constitution, is power without a right’ (Paine 1966: 182).31 Human rights are therefore part and parcel of the limits imposed upon power, and therefore upon sovereignty. They are among those criteria through which the exercise of power within a society will be judged, since state sovereignty is only delegated by the people: its exercise is circumscribed by a substantial E´tat de droit, which includes human rights. At this point, it is easy to see the insurmountable contradiction introduced within the international order by the UDHR which imposes its conception of the world as a common entity (Tassin 2003),32 and thus to consider the law in terms of universal law rather than international law. As they form humanity’s constitutional standards, governments and states cannot dispose of those standards simply by invoking the law, even less by using the contractual form of treaties. Furthermore, this universality, this common trait of all human beings, renders insignificant the distinction between internal and external sovereignty. The issue of human rights at the base of the order is also implicitly present within analyses and discussions surrounding the various forms of world governance. For example, David Held considers that the pursuit of a democratic ideal calls today for setting in place a variety of rights that should be embedded within the constitutional framework of every governance institution in today’s world (Bosse´ 2010).33 Furthermore, it should be noted that even if it is impossible for us to delve deeper into this aspect, the other pole of the contradiction, that of considering water as an economic good, also seems to stem from a ‘constitutional’ logic: The dominant juridical and political dimension of governance in the presentday global political economy is what I call ‘the new constitutionalism of

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disciplinary neoliberalism’ [...] the crucial strategic significance of new constitutionalism is how it seeks to provide political anchorage for the power of capital in the long term [...]. These longterm mechanisms include legal and quasi-legal agreements, the institutionalisation of standards and constitutional changes. Such mechanisms take on both national and transnational forms, in effect forming a liberal constitutional structure for the global political economy. (Gill 2000: 2–3)

Here too the state is stripped of its sovereignty which conversely may not be located in the people nor in the human person but rather in the notion of ownership. The fundamental norm becomes that of protecting property rights and freedom. The general and constitutional character of this project has been clearly defined, namely by Renato Ruggiero, Director General of the World Trade Organization who states that: ‘We are writing the constitution of a single global economy’ (Ruggiero 1997).34 This progressive constitutionalization of market rules is not only seen at international level since it can be found in the constitutions of numerous east European countries adopted in the 1990s. It calls for a specific vision of liberalism and human rights, along the lines of Ayn Rand35 or Friedrich Hayek.36 Here we clearly see two types of constitutional logics coming head to head: ‘new constitutionalism versus democratic constitutionalism’ (Gill 2000), thus denying Westphalian sovereignty. But the political community, having to deal with such a political conflict around its foundation, has still not been established. Article 28 of the Universal Declaration: World order v. Westphalian order The nature of fundamental rules of human rights is nowhere clearer than in Article 28 of the UDHR:37 ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’ (emphasis added). The reference to an order in Article 28 of the UDHR refers in some ways to the Arendtian conception of human rights according to which we, in fact, have only one right: that to a political community able to recognize and protect our rights. From that point of view, these are truly the conditions needed to establish political communities and to build and constitute a common world (NollezGoldbach 2008) which will determine whether the rights and freedoms may take full effect. Such an ‘order’ means that those must be the criteria needed to determine the acceptability of rules or behaviours and of the decisions rendered by the authorities. Despite this, the principle of order in Westphalian sovereignty, that of liberal contractual negotiation, can never be reconciled with the recognition and the protection of such rights. In view of fundamental contradictions such as those seen in the current order, where the standards and rules of the international order of states, of

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Westphalian sovereignty, enjoyed a longer and stronger legal recognition than the wished-for world order of humanity – in which lay human rights and their requirements – the probability of obtaining a legal interpretation along the lines of Article 28 (human rights as a criteria for assessing the legality of the order and the legitimacy of decisions) of course remains relatively low. Despite the existence of human rights standards in international public law, those standards do not occupy the place they should within the normative architecture stemming from another order, namely that of the validity criteria of that order. Recognition of the right to water, however, shows that transformations that happened within international society sometimes allow the actors to use the law to reintroduce the conflict (Koskenniemi 1989, 2005) outside the recognized framework of liberal contract negotiation. At this point, political conflict enters the legal space: ‘Ce n’est plus, dans ce cas, le droit qui re`gle la politique, ce sont les exigences politiques qui e´rigent le droit en argument politique’ (Tassin 2003: 123). This way of expressing the aspiration to rights has been noticed in the past 20 years within various areas of global governance where it becomes the main element of the challenge to the international order. Even though the enforcement of human rights has been placed under the legal responsibility of the states, it clearly defies the Westphalian concept of sovereignty which, from then on, finds itself in a paradoxical situation: En effet, si c’est le respect de la dignite´ humaine qui est la condition d’une conception juridique des droits de l’homme, s’il s’agit de garantir ce respect de fac¸on a ` de´passer le champ de ce qui ne serait que souhaitable et d’atteindre le stade de ce qui est effectivement prote´ge´, il faut admettre comme corollaire l’existence d’un syste`me de droit, avec un pouvoir de contrainte. (Perelman 1981)

Moving beyond classic international law paradigm: towards which legitimate foundation? From the point of view of global issues, conflicts around the vital resource that is water are not only conflicts between states. They are also often conflicts between a state and one or many groups within the population, or between groups within the population itself, or should we say conflicts between human beings and the planet, or between the present and the future, even when they deal with usage having international repercussions and having been the subject of agreements between the various states concerned. It is evident that the New York Convention and, more generally, interstate law, contain no standard able to guarantee taking these interests into account and protecting them unless those states taking part in the negotiation consider them as an integral part of their own national interest. (ICJ 1997).38 The framework of interstate relations does not, by itself,

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guarantee that all the needs of all the populations will be taken into account when balancing the various factors used to determine equity. Here, the many cases of forced displacements in the wake of state or interstate projects of water resources development speak for themselves (Benvenisti 1996: 407), as does the opposition which can become generalized in the face of some large hydro projects (Falk, Bock & Kirk 2009, Meissner 2005). Today’s international law brings almost no answer to these situations. Anthony Turton states that: ‘In water–scarce regions water security can easily become linked to national security, and in the absence of effective mediating transnational institutions, this can threaten peace. Managing transnational water resources is therefore more about international relations than about water resources management in the technical sense’ (Turton 2003). If we follow that, we can go a step further and take into account a more complete definition of the problem, recognizing that it is not only about interstate relations but also about general social relations as well as about the conditions of living together on our planet. Just as inside politically organized societies where general rules are needed to preserve these conditions for living together and to harmonize the unequal balance of power in order to ensure cooperation within conflicts opposing usage and potential users, it becomes essential to start thinking about the conditions of a common order and about the representation of equality at the transnational level. Why should a crossborder context eliminate the need to think about the representation of equality and the role of common rules in this regard? Since when has it been possible to gain equity, a very abstract concept indeed, without defining what it entails, and without a third party being present to determine that equity in the face of the parties’ inequality? And if the parties to the conflict or conflicts cannot be found considering only the sovereign state as a unit, we must take into account the fact that studies on the politics of water in various countries, including in their historical dimension (Hermon 2008), have largely documented the fact that a simple negotiation between the parties concerned was never sufficient to ensure either the protection of water resources or the equality of those parties to confrontational situations or universal access to this vital resource. Why would it be any different in a transnational context (Habermas 2000: 120)? Since when do those who wield power voluntarily accept to limit their power (Chauvier 2006)?39 Such is precisely the role played by human rights in national contexts – in the United States and France, for example – and which they must now ensure all over the world: Increasingly intensive transnational communication of experts, diplomats, government officials, non-governmental organizations, and think-tanks involved in the field of water resources management has gradually brought to internationalization of water resources issues beyond those of transboundary

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watercourses and culminated in the emergence of global water governance. (Mukhtarov 2007)40

Adopted in 2004 by the ILA, the Berlin Rules appear to fit within this paradigm, just as human rights do. The Berlin Rules In 2004, the ILA adopted the Berlin Rules, an updated version of customary rules and progressive developments of the international law of water. Taking into account the debates surrounding this issue worldwide, the committee in charge integrated the dimensions related to human rights, to the protection of the environment and those related to humanitarian law. As Dellapenna, the reporter for the committee wrote: ‘The fundamental question we ask is whether existing legal systems are capable of making serious contributions to the management of the earth’s water resources and whether movement toward a global law on water would address shortcomings in prevailing arrangements’ (Dellapenna & Gupta 2008: 437). Considering that the New York Convention remained relatively conservative, since it did not go much further than the Helsinki Rules established some 30 years previously, and since it was still not in force, despite the fact that it had been written and adopted much later than when the environmental issues started being discussed in multilateral forums, it was relatively unimpressive with regards to ecological considerations (Poydenot 2008: 15). The Committee had to look into other areas of international law to infer the progressive developments that could reasonably be expected.41 In accordance with the developments noticed in international law with regards to human rights and the environment, the Committee tried to consider the issue as a whole and took the time to trace back international rules dealing with water resources as a whole, including those which were not transboundary, thus directly confronting the sovereignty paradigm. This consideration, over and above that of seeing water as a whole, clearly situated the reflection within the perspective of a common world, thereby opening the door to considering the obligations of states within their own boundaries: While most of international law covers relations between states, human rights law and some aspects of international environmental law go beyond interstate relations to focus on the rights and duties of states within their borders. This trend is likely to grow, because most environmental and resource law concerns not just states but also humans within states. (Dellapenna & Gupta 2008: 448)

This was a major breakthrough, though it was contested as we will see later; but still, it was essential from the point of view of the real situation

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mentioned above: conflicts around water resources are not only conflicts between states. Indeed, the attention given to the conditions of success in matters of interstate cooperation has too often obscured either potential conflicts with particular social groups, or conflicts of values or ideas that cannot truly be perceived by analysing interstate relations since each state is considered as one entity. Thus, as many studies show, especially in Africa, successful cooperation between states, their elites and their experts tends to hide the potential for conflicts or violence which may be generated through the exclusion of groups, ideas, values or sense (Merrey 2009, Boege 2009, Sneddon & Fox 2008). In fact, this reality does not only concern developing countries. In Canada, for example, mining companies are allowed to release their toxic waste in lakes, thereby condemning the flora and fauna to mortal contamination. This was stated by Franciscans International in the text it submitted to Canada’s Universal Periodic Review mechanism of the Human Rights Council, where it added: ‘Mining companies proposed a list of 16 lakes which would become toxic waste dumps. This list could increase in the future. These acts may constitute a violation of the right to food, water and health’ (Franciscans International 2008). It is also this type of situation that the Berlin Rules were trying to ‘regulate’. They aimed to give the international law of water its whole scope, including at the internal level, especially with regards to public participation, the right to information and the protection of specific communities, by identifying guidelines able to contribute to the better management of the planet’s water resources as a whole. In the background, they relied on a functional conception of sovereignty that was increasingly understood in terms of responsibility,42 but for us, it is difficult to pretend that this could tend towards a customary crystallization. The list of principles about which the dissenting members of the Committee contested the customary evolution (ILA 2004) clearly illustrates this situation: joint management, integrated management, durability, public participation, access to information, protection of specific communities, principle of precaution, etc.43 All of these concepts call upon the states’ internal obligations at various degrees and refer in some ways to the peoples’ right to dispose of their resources, especially since considering the issues of water from a human rights standpoint requires taking into consideration the right of future generations to the necessary resources in order to thrive (Brunne´e 1994: 127), thereby introducing a criteria with regards to durable usage and the needs of ecosystems. By beginning the two covenants issued from the UDHR with an article on the peoples’ right to dispose of their resources (ICESCR/ICCPR, Article 1) international law had perceived the link between resources and rights. It must be noted, however, that for almost half a century this consideration did not extend outside classical interstate law and for a very

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good reason: human rights do not lie within contractual law... by their very nature... . Thus, who then, is sovereign? A LEGITIMATE WORLD ORDER: SOVEREIGNTY OR SELF-DETERMINATION? If the human rights world order points to rules that may extend further than the inherent voluntarism of the Westphalian order, what then becomes of sovereignty? It is in that space that the philosophical/political conception and the legal conception of that very concept must meet, since if the sense is relatively clear in terms of the law, it nevertheless remains a fiction whose contours become blurry when we try to identify its foundation. Contemporary political thought has been confronted with a powerful requirement in order to understand these basic tenets since the totalitarian project, like the atomic bomb, shook modernity’s philosophical political foundations, namely political freedom and sovereignty (Mairet 1997: 298–303). It is within that context that the international community, either by instinct or by reason, understood the scope of the disaster and after the war, formally introduced the human being, via the UDHR, and humanity as a whole, via the notion of crimes against humanity, within international law, thus establishing the basis of thinking about humanity as ‘eˆtre commun d’un ensemble humain organise´ selon les formes d’une res publica, autrement dit selon le droit’ (Mairet 1997: 294). thereby relegating to the background the principle of sovereignty for those states that comprised it. From then on, the foundation of sovereignty moved to the people, itself being made up of each and every person participating in the construction/ constitution of this common world. The legitimacy of the power sovereignly wielded by the state thus became a search, consistent with the will of the people and mindful of the right it had to dispose of itself while respecting each one of its components, for the singular human being, equal in dignity by virtue of his or her free will and acting as one of the foundations of modernity. Which brings us back to Aristotle’s true sense of the law ‘laws usually derive from the necessity of survival’ (Docke 1997: 169) and it is that of the people and the individuals that compose it which is being discussed here since the state, by itself, has no meaning within this logic. Since the principles of the Westphalian order remain present and claimed, it is not within that order, or within the institutions of classical international law, that rules may evolve more efficiently, but rather through a confrontation with that order, through a political confrontation, as was masterfully illustrated by Ken Conca (Conca 2006). Such, to us, appears to be the sense of recognizing the right to water beyond its technical integration within international law.

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NOTES 1 Including in the more recent framework (New York Convention, 1997) where states have explicitly refused to consider it, if only as a shared natural resource. 2 International economic law, that of the World Trade Organization and the General Agreement on Tariffs and Trade, also defines water as a natural resource (de Haan, 1997). 3 The debate within the Human Rights Council with regards to the inextricable link between access to water and access to sanitation forces us to consider these two dimensions together. In this text, however, it is the question of access to water that will be examined. 4 However, it is explicitly mentioned in some more recent conventions aiming to protect the rights of specific groups (CEDAW 1979, Convention on the rights of the child, 1989). 5 The resolution of July 2010 was adopted without opposition but with many (41) abstentions (UNGA, 2010). The opposition of some states is however noted in other arenas. In particular, on 21 March 2012, Canada and the United States both asked for the elimination of any reference to the right to water in preparation for Rio+20. 6 Notably Algeria, Argentina, Belgium, Bolivia, Burkina Faso, Chile, Columbia, the Democratic Republic of Congo, Ecuador, Ethiopia, France, Gambia, Indonesia, Kenya, Mauritania, Nicaragua, Uganda, Panama, the Philippines, South Africa, Spain, Switzerland, Uruguay, Venezuela, Vietnam and Zambia. 7 It is important to mention that environmental issues also open this perspective, but at this point we are unable to develop them further due to lack of space. We will see later in the document that the Berlin Rules, adopted by the ILA in 2004 aptly illustrate that consideration as well as the states’ reluctance to consider this resource as a common concern. 8 Recognizing that, in this conflict between two orders, nothing guarantees that the human rights order will prevail. 9 For a detailed history of that period and that issue, see Paquerot, 2005. 10 These objectives were defined by the Mar del Plata Conference and adopted later by the General Assembly in its resolution 32/158 dated 19 December 1977. The decade was implemented by the UN General Assembly on 10 November 1980 (Res. 35/18). 11 Let us not forget that Reagan and Thatcher brought a robust tendency during the 1980s but that the fall of the Berlin Wall in 1989 allowed the idea of a large world market to come into play. 12 Led by Oxfam Que´bec/the International Secretariat for Water, it brought together approximately 60 NGOs: http://base.d–p–h.info/fr/fiches/premi erdph/fiche–premierdph–2581.html (in French). 13 As early as 1981, Dutch NGOs founded the International Water Tribunal, which held its first important session on pollution in Western Europe in Rotterdam in 1983. 14 The group met in 1991; it included 14 legal experts from Asia, Africa, Latin America, the United States and the Netherlands. 15 Twelve years before the Berlin Rules were adopted by the ILA.

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16 The World Bank relied heavily on this conference to justify its directions in matters concerning water policy (World Bank, 1994). 17 Proposed by France on 17 June 1992 (Sironneau, 1993: 69). 18 It is difficult to qualify the World Water Council along the traditional categories of apprehension by the various players on the world stage: it is not a state or an international institution, nor is it an NGO or a company since it includes all those among its members. It is a typical example of those new forms of ‘horizontal’ governance bringing together various stakeholders. Sohnle (2002: 444) classifies the World Water Council as a NGO since the genre is not entirely new, as is the case for the International Union for Conservation of Nature, which also includes states and international organizations among its members. 19 It was originally made up of 22 individuals from 16 countries, mainly from the world of politics but also from the academic world. 20 The initiative of the World Water Contract stemmed from the Lisbon Group which, three years before, had published ‘Limits to Competition’ which confirmed the need for worldwide social contracts’ (Lisbon Group, 1995). 21 The largest welfare NGOs in Switzerland, for example, were asking for an international convention which would protect that right, restrict the commodification of water, and set in place a mandatory arbitration process for international conflicts: at that time, Swissaid, Action de careˆme, Pain pour le prochain, and Helvetas et Caritas (http://www.alliancesud.ch/en/policy/ water/downloads/water–convention.pdf/view?searchterm5water). 22 Through a resolution of the Sub-commission on the Promotion and Protection of Human Rights: Promotion of the Realization of the Right to Access of Everyone to Drinking Water Supply and Sanitation Services, Resolution 1997/18, 35th session, 27 August 1997 (adopted without a vote). 23 A committee composed of Mikhail Gorbachev, Ingvar Go ¨ sta Carlsson, Sir Ketumile Masire, Fidel V. Ramos. The International Green Cross also circulated a declaration signed by numerous Nobel Prize winners during the Johannesburg Summit. 24 With the notable exception of some states including Canada and the United States. 25 The legal definition of human rights in the international legal system never required the exclusion of these areas from the market, which explains, among other things, the support given to recognizing this right in 2006 in Mexico during the 4th World Water Forum by Loic Fauchon, who was nevertheless the director of a multinational water company, or the recognition of that right by Ge ´rard Mestrallet, CEO of the Lyonnaise des eaux, in Le Monde dated 26 October 2001. 26 Also mentioned above. 27 For the decision by the Supreme Court of Israel with regards to the right to water for Bedouin populations, see Zarchin, 2001; and for that of the Court of Appeal of Botswana with regards to Bushmen, see Court of Appeals of Lobatse, 2011. 28 He quotes Bull, 1977: 21. 29 This explains, among others, the debates around the different scope of concepts such as the Rule of Law in the Anglo-Saxon tradition and of the E´tat de droit in the republican conception, the Republic being the government of rules and not that of men with regards to the common good (Chevrier, 2008).

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30 The expression was coined by Marcel Gauchet (1989, 1995) who, while studying the period of the French Revolution started to consider the role of the judge in this new order as the protector of fundamental values against fluctuating opinions embedded in the laws and which both emanate from a sovereign people. The French expression is ‘la protection du peuple perpe´tuel contre le peuple momentane´’. 31 In his reply to Edmund Burke’s Reflections on the Revolution in France, published in 1791. 32 He speaks after Arendt on cosmo-politics, meaning the politics of a common world. 33 However, we think that contrary to what this author thinks, this concept refers more to republicanism than to democracy. 34 Along the same lines, see World Bank, 1997. 35 ‘Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.’ The Soul of an Individualist, for the New Intellectual, 84, at: http://aynrandlexicon.com/lexicon/civilization.html. 36 ‘I am certain that nothing has done so much to destroy the juridical safeguards of individual freedom as the striving after this mirage of social justice’ in Economic Freedom and Representative Government (1973) at: http://www. iea.org.uk/sites/default/files/publications/files/upldbook507.pdf; see also Arnaud (1997: 133), who reiterates this author’s sentiments: a free society is a pluralist society without a common hierarchy of particular ends. 37 It should be mentioned that the Human Rights Council has recently (2012) nominated an independent expert on this article. 38 In this case, it was noted that only one judge, in a separate opinion, returned to the question of the minorities mentioned during the procedure. 39 He sees two ways to get the international society out of the natural state: creating an international tribunal that would oversee national tribunals or provide national tribunals with universal jurisdictions. 40 The scope of this article does not allow us to start a substantial discussion on the characteristics of global governance and the potential contradictions generated with the basic principles of democracy and law, even if the emerging human right to water and sanitation have is in fact considered by many actors as a principle of good water governance. We developed this analysis elsewhere (Paquerot, 2012). 41 Many countries were in favour of establishing more precise norms with regards to the environment during the negotiation of that text. 42 The debate on the ‘responsibility to protect’, which happened at the UN’s General Assembly, is probably what better illustrates the limits of customary consideration of those rules based on this concept of sovereignty. Official Records of the General Assembly, sixty–third session, Plenary sessions, 96th to 101st sessions, with Amendment (A/63/PV.96 to 101). 43 To the extent where the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992) Helsinki, United Nations Economic Commission for Europe, March 17, E/ECE/1267. [Entry into force 1996] includes some of those principles; it seems that the dissidents do not consider its norms as customary. A contrario: (Chetan and Boijin, 2006)

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REFERENCES AGONU, Convocation de la confe´rence des Nations Unies sur l’eau. Re´s. 3513/ XXX (1975). ———, Ce´le´bration de la Journe´e mondiale de l’eau. Re´s. 47/193 (1992). ———, Le droit fondamental a ` l’eau et a ` l’assainissement. A/64/PV.108 28 juil. 2010 AG/10967 122-0-41. [AG: A/64/L.63/Rev.1] (2010). Arnaud, Andre´-Jean. Entre modernite´ et mondialisation: cinq lec¸ons d’histoire de la philosophie du droit et de l’E´tat. Vol. 20 (Paris: L.G.D.J., collection Droit et socie´te´, 1997). Badie, Bertrand, La diplomatie des droits de l’homme (Paris: Fayard, 2002). Benvenisti, E. ‘Collective Action in the Utilization of Shared Freshwater: the Challenges of International Water Resources Law’, A.J.I.L. 90 (1996), pp. 384–415. Bertrand, Gilles. ‘Ordre international, ordre mondial, ordre global’, Revue internationale et strate´gique, 2/54 (2004), pp. 99–107. Boege, V., ‘Transboundary Water Governance in Regions of Weak Statehood’, in Swatuk, L.A. and Wirkus, L. (eds). Transboundary Water Governance in Southern Africa: Examining Underexplored Dimensions (Baden-Baden. Germany: Nomos for BICC, In Went and DCAF, 2009), pp. 31–46. Bosse ´, Martin. ‘Souverainete ´, de ´mocratie et gouvernance mondiale chez David ´ tat national’, MA Thesis Held: Le proble `me de la de ´mocratie au-dela` de l’E (Montreal: De ´partement de Philosophie, Universite ´ de Montre ´al, 2010). Brundtland, G.H., ‘Commission mondiale sur l’environnement et le de´veloppe´ ditions du Fleuve, 1998). ment’, in Notre avenir a ` tous (Montre´al: E Brunne´e, J., ‘Environmental Security and Freshwater Resources: the Role of International Law’, Proceedings of the Annual Conference of the Canadian Council of Int’l Law (1994), pp. 124–33. Bull, Hedley, The Anarchical Society. A Study of Order in World Politics (London: Macmillan, 1977). Caflisch, Lucius. ‘La Convention du 21 mai 1997 sur l’utilisation des cours d’eau internationaux `a des fins autres que la navigation’, A.F.D.I., 43 (1997), pp. 751–98. Cassin, Rene´, ‘Les droits de l’homme’, RCADI, 79 (1951), pp. 241–367. Conseil des droits de l’homme, Les droits de l’homme et l’acce`s a ` l’eau potable et a ` l’assainissement. Re´solution A/HRC/15/L.14. 24 September, adopted on 30 September 2010. Committee on Economic, Social and Cultural Rights, The Right to Water, November 27. General Comment No. 15: E/C.12/2000/11, Conseil e´conomique et social, 27 November 2002. Chauvier, Ste ´phane. Justice et droits a ` l’e´chelle globale (Paris: Vrin, 2006). Chetan, C. and L. Bojin. ‘Le test de ne´cessite´ environnementale et le principe de pre´caution comme e´le´ments du droit de l’eau douce’, Revue que´be´coise de droit international, 19/2 (2006), pp. 125–58. Chevrier, Marc, ‘Trois visions de la constitution et du constitutionnalisme contemporain’, Revue que´be´coise de droit constitutionnel 2 (2008), pp. 72 –129. Conca, Ken, Governing Water: Contentious Transnational Politics and Global Institution Building (Cambridge: MIT Press, 2006). Cour d’appel de Lobatse, Mosetlhanyane et autres c. le Procureur ge´ne´ral du Botswana. Appel civil n˚ CACLB-074-10. Botswana, Jugement unanime,

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27 January 2011. Available at: http://www.escr-net.org/caselaw/caselaw_results. htm?focus¼13675,13939,13961&order¼dateDESC. de Haan, E.J., ‘Balancing Free Trade in Water and the Protection of Water Resources in G.A.T.T.’, in E.H.P. Brans, de Haan, E.J., Nollkaemper, A. and Rinzema, J. (eds), The Scarcity of Water: Emerging Legal and Policy Responses (Boston, MA: Kluwer, 1997), pp. 245–59. Dellapenna, J. and Gupta, J., ‘Toward Global Law on Water’, Global Governance, 14 (2008). Dicke, K., ‘National Interest vs the Interest of the International Community’ in J. Delbru ¨ ck, (ed.), New Trends in International Lawmaking: International ‘Le´gislation’ in the Public Interest (Berlin: Duncker and Humblot, 1997), pp. 145–69. Duhamel, Olivier. Les de´mocraties (Paris: Seuil, 1993). Eberhard, Christoph, ‘L’approche pluraliste du droit: un enjeu central pour une gouvernance le ´gitime’, Chroniques de la gouvernance 2009–2010 (2010), pp. 87–92. Falk, T., Bock, B. and Kirk, M., ‘Polycentrism and poverty: Experiences of rural water supply reform in Namibia’, Water Alternatives 2/1 (2009), pp. 115–37. Franciscans International, Conseil des droits de l’homme des Nations Unies. Examen Pe ´riodique Universel (EPU) du Canada, Quatrie `me session (2–13 February 2009): Individual contribution September 2009. Gauchet, Marcel, La Re´volution des droits de l’homme (Paris: Gallimard, 1989). ———, La Re´volution des pouvoirs: la souverainete´, le peuple et la repre´sentation 1789-1799 (Paris: Gallimard, 1995). Gill, Stephen, The Constitution of Global Capitalism, 2000. Paper presented to a panel: The Capitalist World, Past and Present at the International Studies. Association Annual Convention, Los Angeles: http://www.theglobalsite.ac.uk/ press/010gill.htm. Golay, Christophe, La place des besoins humains essentiels dans la Convention des Nations Unies sur le droit relatif aux utilisations des cours d’eau internationaux a ` des fins autres que la navigation (Gene`ve: IUHEI, 2001). Habermas, Jurgen, Apre`s l’E´tat-nation. Une nouvelle constellation politique (Paris: Fayard, 2000). Hermon, E. (ed.), L’eau comme patrimoine. De la Me´diterrane´e a ` l’Ame´rique du Nord (Que ´bec: Presses de l’Universite´ Laval, 2008). International Court of Justice Affaire relative au projet Gabcikovo – Nagymaros (Hongrie/Slovaquie), IJCJ 92, 25 septembre, Recueil 1997, 37 I.L.M. 162 (1997). Available at: www.icj-cij.org/cij/cdocket/chs/chsjudgment/chs_cjudgment_ 970925.htm. International Law Association, ‘Helsinki Rules’ in Report of the 52nd Second Conference Helsinki 1966 (London: ILA, 1967). ———, Berlin Conference 2004 – Water Resources Law Committee 4th Report including dissenting opinion, 6 August 2004. Kelsen, Hans. The´orie pure du droit. (French translation: H. Thevenaz) (de la Baconnie`re, 1953) Kiefer, Thorsten and Brolmann, Catherine, ‘Beyond State Sovereignty: The Human Right to Water’, NonState Actors and International Law 5 (2005), pp. 183–208.

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Kolb, Robert, ‘Mondialisation et droit international’, Relations internationales, 123 (2005). Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers Publishers, 1989). Reprint: Cambridge, Cambridge University Press, 2005. Lewis, P., ‘U.N. report warns of problems over dwindling water supplies’. New York Times, 20 January 1997. Available at: http://www.nytimes.com/1997/01/20/ world/un-report-warns-of-problems-over-dwindling-water-supplies.html. Lisbon Group, Les limites a ` la compe´titivite´ (Brussels/Montre´al/Paris: Labor/ Bore´al/La De ´couverte, 1995). Mairet, G., Le principe de souverainete´: histoires et fondements du pouvoir moderne (Paris: Gallimard, Folio/essais, 1997). McCaffrey, S., ‘A Human Right to Water: Domestic and International Implications’. Georgetown Int’l Env’l L. R., 5 (1992) 1–24. Meissner, R., ‘Interest groups as local stakeholders involved in the water politics of a transboundary river: The case of the proposed Epupa dam across the Kunene river’. In: L. Wirkus (ed.). Water, Development and Cooperation – Comparative Perspective: Euphrates-Tigris and southern Africa (Bonn: Bonn International Center for Conversion, 2005), pp. 101–21. Merrey, D.J., ‘African Models for Transnational River Basin Organisations in Africa: An Unexplored Dimension’ Water Alternatives 2/2 (2009), pp. 183–204. Mukhtarov, F.G., ‘Global water Governance and the Concept of Legitimacy’. In: Pathways to Legitimacy? The Future of Global and Regional Governance (Warwick: CSGR/GARNET Conference, Warwick University, 2007). Nollez-Goldbach, Raphae ¨lle, ‘The´orie des droits de l’homme chez Hannah Arendt: le droit d’avoir des droits’, in Caloz-Tschopp, M.-C. (ed.), Lire Hannah Arendt aujourd’hui, Pouvoir, guerre, pense´e, jugement politique (Paris: L’Harmattan, 2008), pp. 263–71. Organisation me´te ´orologique mondiale, Confe´rence internationale sur l’eau et l’environnement: le de´veloppement dans la perspective du XXI e sie`cle: ‘De´claration de Dublin’. Dublin, 26–31 January 1992. Paine, Thomas, The Rights of Man (New York, NY: Everyman’s Library, 1966). Paquerot, Sylvie, Eau douce, la ne´cessaire refondation du droit international (Que´bec: PUQ, 2005). ——— ‘Global governance, legitimacy and the ambiguous role of international law’, Madrid, IPSA Congress, July 2012. Perelman, Charles, ‘La sauvegarde et le fondement des droits de l’homme’, Ethiopiques, 26 (1981). Poydenot, Anne, ‘Le droit international de l’eau, e´tat des lieux’, Les notes d’analyse du CIHEAM, 29 (2008). Ringskog, K., Thirty Years of Bank Assistance in Water Supply and Sanitation: an OED Review (World Bank Water Forum, 2008). Rouland, Norbert. Aux confins du droit: anthropologie juridique de la modernite´ (Paris: Odile Jacob, 1991). Rouyer, Muriel, ‘Les promesses du constitutionnalisme’, Raisons politiques, 2/10 (2003). Ruggiero, Renato, ‘The High Stakes of World Trade’, Wall Street Journal, (1997). Secretary General of the United Nations, E´valuation ge´ne´rale des ressources en eau douce dans le monde. Report of the C.S.D., 5th session, 5–25 April: E/ CN.1997/9 (1997).

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Sironneau, Jacques. ‘L’eau, enjeu plane´taire: Dossier’, Ge´opolitique 43 (1993), pp. 42–87. Sneddon, C. and Fox, C. ‘River-basin Politics and the Rise of Ecological and Transnational Democracy in Southeast Asia and Southern Africa’, Water Alternatives 1/1 (2008), pp. 66–88. Sohnle, Jochen, Le droit international des ressources en eau douce: solidarite´ contre souverainete´. (Paris: La Documentation franc¸aise, coll. Monde europe´en et international, 2002). Taithe, Alexandre, ‘Tempeˆte dans un verre d’eau: droit, besoin, ou quel bien public? ’, in Franc¸ois Constantin (ed.), Les Biens Publics Mondiaux: Un Mythe Le´gitimateur pour l’Action Collective? (Paris: L’Harmattan, 2002). ´ tienne, Un monde commun (Paris: Seuil, 2003). Tassin, E Turton, A.R., ‘The hydropolitical dynamics of cooperation in southern Africa: A strategic perspective on institutions development in international river basins’, in Turton, A., Ashton, P. and Cloete, E. (eds). Transboundary Rivers, Sovereignty and Development: Hydropolitical Drivers in the Okavango River Basin (Pretoria, South Africa: African Water Issues Research Unit, University of Pretoria and Geneva/Green Cross International, 2003), pp. 83–104. UNESCO, L’e´thique de l’utilisation de l’eau douce: vue d’ensemble (UNESCO, 2000). Zarchin, Tomer, ‘Court rules water a basic human right’. Haaretz, 6 June 2011. Available at: at: http://www.haaretz.com/print-edition/news/court-rules-watera-basic-human-right-1.366194) World Bank, Gestion des ressources en eau, Washington, Document de politique ge´ne´rale de la Banque mondiale (Washington DC, WA: World Bank, 1994). ———, World Development Report: L’E´tat dans un monde en mutation (Washington DC, WA: World Bank, 1997).

OTHER DOCUMENTS Action 21, 1992. N.U. Doc. A/CONF.151/26 and annexes. Confe´rence mondiale sur l’alimentation, 1974. Adopted November 16, 1974 in Roma by the World conference (5-16 November, 134 countries) Called by the United Nation Organizationin application of resolution 3180 (XXVIII) of the General Assembly, December 17, 1973; that the General Assembly makes her own by resolution 3348 (XXIX) December 17, 1974, 29e session. CEDAW, Convention sur l’e´limination de toutes les formes de discrimination a ` l’e´gard des femmes. Re´s. AG NU 34/180, 18 December 1979. Convention de New York, 1997. Convention sur le droit relatif aux utilisations des cours d’eau internationaux a` des fins autres que la navigation. A/RES/51/229, 51e session, 21 mai, Doc. A/51/869. Convention sur les droits de l’enfant, 1989. AG ONU Re´s. 44/25, 20 novembre. 28 I. L.M. 1448. De ´claration de Stockholm, 1972. De´claration de la confe´rence des Nations Unies sur l’environnement humain. Doc. N.U. A/CONF. 48/14/Re´v. 1; 11 I.L.M. 1416, 1420. Declaration of Amsterdam, 1992. Netherlands, International Books, The Case Books series, vol. 5.

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DUDH, 1948. De´claration universelle des droits de l’homme (1948) Doc. N.U. A/810, p. 71. Mar del Plata, 1977. Rapport de la Confe´rence des Nations Unies sur l’eau, E/CONF.70/29, 14–25 mars, p. 65. National Sovereignty and International Watercourses, 2000. Gene`ve, Green Cross Int’l, March. PIDESC, 1976. Pacte international relatif aux droits ´economiques, sociaux et culturels (1976) 993 R.T.N.U.3, [1976], R.T. Can. No 46 R.E.I.Q. (1984–89), no 1976 (3), p. 808; PIDCP, Pacte International relatif aux droits civils et politiques, R.E.I.Q. (1984– 89), no 1976 (5), p. 817 Rapport d’Habitat , Confe´rence des Nations Unies sur les ´etablissements humains (publication des Nations Unies, nume´ro de vente F.76.IV.7 et rectificatif), chapitre II, Recommandation C-12.

13

State Sovereignty and Transboundary Aquifers

Raya Marina Stephan and Gabriel de los Cobos INTRODUCTION In 2008, the UN General Assembly adopted Resolution 63/124 on the Law of Transboundary Aquifers, which includes in its annex the draft articles on the same topic prepared by the UN International Law Commission (ILC). The Resolution represents an important step forward in the development of international water law as it is the only instrument at the global level specifically covering transboundary aquifers and their joint management. The UN ILC Draft Articles have benefitted from a unique and original process. During the drafting period, the special rapporteur and the Commission have received technical assistance from a group of experts on the science of hydrogeology set up by UNESCO’s International Hydrological Programme at the request of the special rapporteur. As a result, the Draft Articles are specially tailored for the specific needs of managing transboundary aquifers, and include precise scientific and technical provisions. While the draft articles were generally welcomed, and the initiative to consult with scientists appreciated (as often mentioned in the comments and statements either at the ILC or at the 6th Committee), they have received strong criticism, mainly about Draft Article 3 related to ‘sovereignty’ (McCaffrey 2009 & 2010). In this chapter, we will discuss the introduction of this concept to the draft articles and the extent of its meaning, as well as the extension of the scope from groundwater to ‘aquifer’, its meaning, reasons and its consequences. THE CONCEPT OF SOVEREIGNTY IN THE DRAFT ARTICLES In 2002 in its programme of work, the ILC included the topic of ‘Shared Natural Resources’ focusing on ‘confined’ transboundary groundwater, oil and natural gas. In his first report ‘on outlines’ submitted in 2003, the special rapporteur provided the background on the topic of ‘Shared Natural Resources’ at the ILC, and explained the approach he intended to follow: to start with ‘transboundary groundwater’ and then deal with oil and gas. Five years later, in 2008, the Commission had completed its work with the

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adoption at second reading of 19 Draft Articles on the Law of Transboundary Aquifers. In 2010 the ILC finally decided to drop its work on oil and gas. During these years, the Draft Articles were prepared and the scope of the topic evolved from ‘transboundary groundwater’ to ‘transboundary aquifers’. The debate on sovereignty In his first report, the Special Rapporteur Yamada delineating the sub-topic of ‘confined transboundary groundwaters’, indicates ‘that the scope of ‘groundwater’ that we are supposed to address covers water bodies that are shared by more than two states but are not covered by Article 2(a) of the Convention on the Law of the Non-navigational Uses of International Watercourses’ (UN Watercourses Convention). As a reminder, Article 2(a) of the Convention defines a ‘watercourse’ as ‘a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus’. At this stage the special rapporteur still speaks of ‘confined transboundary groundwaters’, and does not mention aquifers, which will come at a later stage. Invited to comment on the work of the ILC, the delegates at the 6th (Legal) Committee of the United Nations (UN) General Assembly ‘stated that account should be taken of the relationship of the topic to [...] General Assembly resolution 1803 (XVII) on permanent sovereignty over natural resources’ (6th Committee 2003). By 2003, i.e. before the introduction of the concept of aquifer to the sub-topic, a link is therefore established between the sub-topic of ‘confined transboundary groundwaters’ and the concept of sovereignty. Rather than to the concept of aquifer itself, the notion of sovereignty appears to be related to the topic of ‘Shared Natural Resources’ under which the special rapporteur is dealing with a direct reference to Resolution 1803 (Sohnle 2012). In his second report on transboundary groundwaters, the special rapporteur proposed six Draft Articles with the view of provoking substantive discussions at the ILC, and without the intention of ‘suggesting any premature formulation of draft articles’ (Yamada 2004). This first formulation concerns the scope, the use of terms and general principles. The second report represents an important evolution with the introduction of the term aquifer, widening ‘in some way the scope of the topic as the term ‘‘aquifer’’ covers both the rock formation which stores waters and the waters in these formations; it is the container and its content’ (Stephan 2006). The special rapporteur also drops the word ‘confined’, which has been used by the ILC as meaning unrelated to surface waters, while hydrogeologically it means under pressure. The shift from ‘confined transboundary groundwaters’ to aquifers did not raise any issue at the ILC, except concerning which definition of aquifer to adopt (ILC 2004). The second report, in contrast, does not include any reference to sovereignty. The question was raised at the ILC, however, during the debates. Some members ‘emphasized that groundwaters must be regarded as belonging to the State where they were

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located’ while others ‘also suggested that sovereignty over the groundwaters’ was not questioned and that ‘the text could clearly state (it), possibly in the preamble’ (ibid.). Sovereignty is still evoked here in relationship with the term ‘groundwaters’. The reactions of states reflect the traditional approach to property enounced as ‘whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell’, meaning property holders have rights not only to the plot of land itself, but also to the air above and to the ground below, and to all what the ground contains (water, hydrocarbons, etc.). At the national level this principle has evolved, and in most states water from underground, thus groundwater, is considered either the state’s or common property (the same as surface water). At the international scale, however, states’ comments on the Draft Articles indicate that the traditional approach to property is still considered, especially regarding what falls under the ground. At the 6th Committee, there was general support for the special rapporteur’s proposal to use the terms ‘aquifer’ and ‘aquifer system’, rather than the term ‘confined transboundary groundwaters’. Some delegations emphasized that the Commission should take into account the sovereignty of states over their natural resources and include it in a provision, and give reference to General Assembly Resolution 1803 (XVII) of 14 December 1962, entitled ‘Permanent Sovereignty Over Natural Resources’. The position and the experience of the states of the Guarani Aquifer System (Argentina, Brazil, Paraguay and Uruguay) within Mercosur were also raised during the discussions of the 6th Committee as information on state practice. In this case, sovereignty was present in the negotiations that took place between these four countries with the idea that the portion of the Guarani Aquifer lying in the territory of each state was under its sovereignty without prejudice to any cooperation efforts (6th Committee 2004). In this case the notion of sovereignty does not appear to be an obstacle for building cooperation. In the third report, produced in 2005, the special rapporteur presents a full set of Draft Articles on the Law of Transboundary Aquifers, 25 in total. This set of draft articles still does not include any article on sovereignty. Following the debates at the 6th Committee in the previous years, however, the special rapporteur mentions in his report that he ‘recognizes the sensitivity of the question and is willing to include [...] a reference to the GA resolution 1803 (XVII) on permanent sovereignty over natural resources in the preamble’, as was requested by some delegations (Yamada 2005). In his oral presentation at the ILC, the special rapporteur reminded delegates that the need for an explicit reference to UN General Assembly Resolution 1803 (XVII), on permanent sovereignty over natural resources, had been advocated by some delegations in the debate at the 6th Committee. He suggested including such a reference in the preamble. Some members of the ILC supported this suggestion, while others claimed that ‘the principle of permanent sovereignty over natural resources was central to the topic and deserved full treatment in a separate draft article’ (ILC 2005). Another group of members did not see the need for such an article. During the

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discussions, some members raised the relative character of the concept of sovereignty and highlighted the importance of construing sovereignty for the purposes of the Draft Articles as not denoting absolute sovereignty. They argued that ‘water in a transboundary aquifer was not only subject to the sovereignty of a State in the territory in which it was located but also to the regulatory framework freely agreed upon by States that shared such an aquifer’ (ibid.). These positions clearly show that by introducing a Draft Article on sovereignty the intention of the ILC was not to refer to the Harmon Doctrine or ‘absolute sovereignty’ but rather to reflect its limited character. Draft Article 3 on sovereignty The same year, the ILC established a Working Group to revise the draft articles according to the debates that took place during its session. The Working Group was reconvened in 2006 to finish its work. The decision of the Working Group was to add an Article on sovereignty to the Draft Articles, stipulating that: ‘Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territorial jurisdiction. It shall exercise such sovereignty in accordance with the present draft articles.’ At the 6th Committee, some delegations approved this proposal and others requested ‘an explicit reference to the principle of permanent sovereignty over natural resources as set out in General Assembly resolution 1803 (XVII) of 14 December 1962’. In 2006, the Working Group completed its work and the Draft Articles were referred to the Drafting Committee, which adopted them at first reading. According to the ILC’s statute, the Draft Articles were transmitted to governments for comments and observations by 1 January 2008. The Article on sovereignty has remained unchanged, as per the first proposal of the Working Group. While Draft Article 3 mentions that each aquifer state exercises its sovereignty over the transboundary aquifer or aquifer system to the extent located within its territory, ‘in accordance with the present draft articles’, in the comment under the Draft Article the ILC states that ‘it is understood also that the present draft articles do not cover all limits imposed by international law on the exercise of sovereignty. Accordingly, the draft articles will have to be interpreted and applied against the background of general international law’ (ILC 2006). It clearly appears that due consideration is given to international law, which means that sovereignty as included by the Working Group is meant to be limited, thus reflecting the current status of international water law. At the 6th Committee the inclusion of Draft Article 3 in the set of proposed Articles was welcomed by some delegations. Draft Article 3 was also considered significant because it placed the primary responsibility for the use and management of each transboundary aquifer on the state where the aquifer was located. This consideration corresponds veritably to the management

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of water in general, whether surface or groundwater. Water, even when it is part of a transboundary body, is managed initially at the national level, under the regulatory framework set in the state where it flows. Of course this national framework has to adapt to the requirements of international law, and to any cooperation mechanism established with the riparian states. Nevertheless, the delegates at the 6th Committee again requested a special reference to UN General Assembly Resolution 1803. At the same time, and with a view to improving the statement contained under Article 3, it was noted that some mention that ‘the sovereignty of the aquifer State (is) also governed by the rules and generally accepted principles of international law’ needed to be added (6th Committee 2006). This last statement clearly shows that states themselves can be cautious about a proper characterization of the concept of sovereignty, as it is currently accepted in international law, and do not seem to intent to refer the absolute sovereignty. In the written comments received from states in 2008, six out of a total of 19 states commented on the Draft Article on sovereignty, mainly requesting a reference to UN General Assembly Resolution 1803, and to limiting the sovereignty in Draft Article 3 according to the rules of international law. In his fifth report submitted in 2008, the special rapporteur proposed a revised version of the Draft Articles to the Commission for the second reading taking due consideration of the comments received. Draft Article 3 on sovereignty was not changed from the version prepared and submitted by the Working Group in 2006, as the special rapporteur considered that ‘the current formulation reflects the appropriate balance between these differing positions’. Despite this, Draft Article 3 as adopted by the ILC at second reading was slightly modified and uses the following wording: ‘Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory. It shall exercise its sovereignty in accordance with international law and the present draft articles.’ This corresponds better to the comments expressed earlier. This represents the last version of Draft Article 3, as included in the annex of Resolution 63/124. AQUIFER V. GROUNDWATER It appears from the developments above that, contrary to what has been said (McCaffrey 2009), the introduction of the concept of sovereignty was not related to the extension of the topic from groundwater to aquifer. It is true that the concept of aquifer can be related to sovereignty, territorial sovereignty to be more precise, as it covers ‘an immovable part of the territory of states’ (McCaffrey 2010). However, even territorial sovereignty is limited and not absolute as it has been stated: ‘Territorial sovereignty [...] involves the exclusive right to display the activities of a State. This right has a corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and

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war [...]. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States’ (Island of Palmas Arbitration 1925, cited by Tanzi 2010). In the same way, advocating and concluding that ‘the subject matter of the draft should be transboundary ‘‘groundwater’’ rather than transboundary ‘‘aquifers’’’ (McCaffrey 2011), reflects a complete misunderstanding of the reality of groundwater and aquifers, which unfortunately is being widely circulated and spread. The intention in the following developments is therefore to clarify these concepts and bring the debate back to the requirements of the proper management of groundwater and aquifers. The following developments will introduce the point of view of the hydrogeologist. THE NECESSARY CHARACTERIZATION OF THE RESOURCE: THE AQUIFER Quantitative and qualitative groundwater management must necessarily begin with an in-depth study of the entire aquifer system surrounding this water resource. In characterizing a resource or carrying out flow assessments and designing protection schemes where there is one or several bodies of water and where these cross one or more borders, the hydrogeologist has to take account of the entire aquifer system in order to determine the ‘inlets’ and ‘outlets’ of the water, as well as the various phenomena arising within the naturally formed reservoir. The circulation mechanisms greatly depend on geological conditions, which can be complex and variable. Essential steps for carrying out a hydrogeological study of an aquifer for sound groundwater management Most rocks in the natural environment contain water. Of its various forms, it is gravity-fed water that is obviously the easiest to use and which is directly involved in the water cycle. Although groundwater only represents about 0.3 per cent of all water in the earth, hence only representing a tiny volume of water that can be used by humans (and which is, furthermore, very unevenly distributed), its potential use has greatly increased. This meteoric water, namely the small amount of water that manages to seep into the soil, feeds into the aquifers and contributes to groundwater runoff. The natural recharge of aquifers Water reserves in recharging aquifers are periodically replenished by the water cycle. Two main processes are involved: infiltration from surface waters, and effective precipitation, which is the amount of water that reaches the water table after loss through evapotranspiration and runoff. These are the principal processes that are responsible for aquifer replenishment.

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Recharge from a river or watercourse is the most difficult to determine precisely. It is necessary to add here that even if the topic of our chapter relates to sovereignty, it is worth noting that according to water scientists the relationship between an aquifer and a surface water body is not easy to identify, making it difficult to know which aquifers would fall under the scope of the UN Convention on the Law of Non-navigational Uses of International Watercourses (1997). This shows the difficulty in determining exactly when an aquifer falls under the scope of the 1997 Convention and when it does not, making it preferable to have an instrument covering transboundary aquifers in all cases. The determination is dependent on various factors, such as the nature of the watercourse, the structure of the riverbed or banks, the nature and structure of the unsaturated zone of the aquifer, and the hydrodynamic parameters. In addition to the essential characteristics of the natural or artificial limits of the system and the importance and variation of the hydraulic conductivity of the land around the aquifer, the geological make-up of the aquifer is a significant parameter (alluvial aquifers, aquifers in fissured rocks or karst aquifers, chiefly in limestone and gypsum). Recharge from rainwater seepage accounts for a major portion of groundwater replenishment. When meteoric water reaches the surface of the soil, three processes take place: i) runoff and dampening of the topsoil, depending on the degree of dryness and permeability of the soil; ii) evapotranspiration from plants; and iii) water seepage, if the conditions are favourable. In the latter case, the volume of water in the soil increases with depth until you reach the water table. Beyond this level, the soil is saturated and this volume is considered to be groundwater. In the saturated area, the water content depends mostly on porosity, permeability and storage amounts. In the unsaturated part of the soil, the water volume is related to hydraulic conductivity and capillary pressure, which are interdependent factors. The significance of natural groundwater recharge also depends on many other factors, which are climatic, geological, hydrogeological, biological and even economic in nature, all of which are interdependent to a certain extent. Characteristics of aquifers An aquifer is a body of permeable rock, unconsolidated gravel or sand stratum for example, that is capable of storing significant quantities of water, that is underlain by impermeable material, and through which groundwater moves. A reservoir is made up of a configuration (dimensions, boundary conditions, etc.) and a structure (organization of the composite material). There are two main types of aquifer, depending on the nature of the reservoir, namely homogeneous or general aquifers (sand and gravel, for instance) that can be easily exploited as a whole, and heterogeneous or fractured aquifers, in which the water moves around in the discontinuous parts of the environment (e.g., fissured or karstified limestone, fractured granite; see Figures 13.1a, b and c). Flow, or the volume of water circulating in the reservoir with relative ease,

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Figure 13.1a. Alluvial aquifers (sand and gravel). (Source: L’Eau souterraine, Swiss Federal Office for the Environment, 2003.)

depending on the characteristics of the reservoir, groundwater stockpiling and circulation conditions in the reservoir will determine one of three types of aquifer: unconfined aquifers, with a piece of unsaturated land containing air above the piezometric level; captive aquifers, when the entire thickness of the aquifer is saturated with water and the aquifer has a layer above it that is impermeable or scarcely permeable; and third, aquifers with semi-captive groundwater, when the geological layers around the aquifer (wall and roof) are semi-permeable. There can then be significant exchanges with aquifers located above and below (the leakage phenomenon). Clearly, lateral variations may occur, depending on the geology, and some unconfined aquifers can become confined in places and vice versa. Regarding the use of water resources, not all aquifers serve the same purpose. Although confined aquifers provide better protection from outside aggression for reservoirs, experience has shown that the use of deep, confined aquifers presents major disadvantages because the water is almost never replenished. This leads to considerable, long-lasting lowering of the piezometric level as

Figure 13.1b. Aquifer water in crystalline rock (granite, gneiss, schists or sandstone). (Source: L’Eau souterraine, Swiss Federal Office for the Environment, 2003.)

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Figure 13.1c. Karstic aquifers (limestone). (Source: L’Eau souterraine, Swiss Federal Office for the Environment, 2003.)

the water is depleted. The reserves of unconfined aquifers, however, are periodically replenished through effective precipitation and possible hydraulic connection with surface waters, which is the case, for example, with alluvial groundwater resulting in greater productivity but strong sensitivity to surface water quality. Indeed, since alluvial groundwater is closer to the surface, it is more vulnerable to potential pollution. Boundary conditions Groundwater distribution and circulation are determined by the law of fluids. Several concepts are used in hydrogeology, such as porosity (the proportion of empty spaces in a piece of land that may be occupied by water – typically sand or gravel) and permeability (which is the ease with which water moves around in the earth under the effect of a hydraulic gradient and several other hydrodynamic parameters, such as transmissivity, the storage coefficient, diffusivity, the hydraulic gradient and the runoff rate). Also, as a reminder, water circulates vertically in an unsaturated environment (percolation) and laterally within the aquifer. Generally speaking, groundwater flows very slowly, depending on the geometry of the rocks and the distribution of pores and fissures. So, for example, the effective runoff speed of the confined groundwater of green sand (in Albien, France) is around 2–5 m per year. The alluvial groundwater runoff speed is faster at 5 m per day. Karstic groundwater (water in the Jura Mountains, for example) has greater flows because the water circulates in large underground cavities and can form veritable underground rivers with extremely high flow rates of several kilometres per day. Fractured aquifers, which are typical of alpine rocks, allow water to pass through their cracks and crevices to attain several 100 m per day (Figure 13.2). The developments above provide a clearer picture of the complexities of groundwater flows and the importance and the necessity of assessing the

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Figure 13.2. The discharge rate of an aquifer depends on its permeability. (Source: Groundwaters in France, BRGM, 2012.)

entire aquifer and not just the saturated part of the groundwater. A study of groundwater geometry is essential to gaining further insight into the groundwater system and being able to evaluate its hydraulic features. This exercise is inevitable when it comes to transboundary aquifers. Properly managed groundwater therefore requires the consideration of the whole aquifer, and not only the water itself. Considering only the groundwater as is suggested (Ibid) would lead to unavoidable management mistakes. Water moves around in an aquifer from the natural or artificial recharge zones (inlets) to the drainage areas (outlets). The hydrodynamic processes governing this circulation are closely linked to these two points. Groundwater balance is achieved based on hydraulic laws and the nature of the boundary conditions of the aquifer (see Figure 13.3). There are two types of boundary conditions: .

Geological boundaries, which are, by nature, unchangeable or almost; faults, limits of permeable layers (roof and substratum), geological lateral variations of layers and bevelled edges.

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Figure 13.3. Diagram of inputs and outputs from an aquifer. Supply: 1: rainwater infiltration; 2: infiltration of snowmelt; 3: infiltration of streams and rivers; 4: contributions from other aquifers; 5: artificial infiltration of slightly polluted urban water (roofs, squares, access roads); and 6: artificial recharge facilities. Losses: 7: springs; 8: pumping wells; 9: base flow of rivers; and 10: losses to other aquifers. (Source: A. Parriaux, Geology, Basics for Engineers, CRC Press, 2009.) .

Hydrodynamic limits on imposed flows or imposed head that may develop in time and space. These limits determine balances that could translate into positive, negative or no variations in flow. Here we could cite waterproof geological limits (zero flow), recharge zones (positive flow) and areas of exchange with neighbouring aquifers or watercourses (positive or negative flow, depending on the direction of the exchange) and lastly, springs and shorelines (negative flow).

All of the parameters relating to water assessment (flow rates of incoming and outgoing water) and boundary conditions will determine the hydrodynamic development of the groundwater. It is essential to gain a full grasp of these concepts in order to understand the behaviour of aquifers and maximize their yield. In transboundary aquifer management it is therefore of strategic importance to have an excellent understanding of the underground environment and resources, especially for the purposes of evaluating an aquifer (aquifer balance).

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Aquifer balance An aquifer is a dynamic system with three different kinds of functions in respect of groundwater: impulsion, material, and flow transfers and response. These result from the functions of the reservoir as a reaction to outside stimuli and impulsions, imposed at its outer limits, and ensure the regulation of all the different aspects relating to outlet runoffs. A groundwater evaluation involves taking account of the average inflows and outflows that naturally create balance in an aquifer. A third factor must sometimes be added to these natural parameters and that is use, which is solely and exclusively related to human activity. It includes the drawing of groundwater from wells or drilling and artificial provisions (artificial or induced recharge). Water assessment emanates from the science law of mass conservation and relates to the balance of inflows and outflows in the same spatial domain during the same reference period. Sometimes the evaluation elements (positives and negatives) result in an outcome that corresponds to the difference in reserves at two specific moments in time and within a defined perimeter. By definition, groundwater assessment is not balanced. Balance occurs when the period being evaluated is sufficiently long (i.e. over several years). Example of the Genevese Aquifer Before the signing of the 1978 agreement between the state of Geneva and Upper Savoy (Haute Savoie), many years of hydrogeological study and work (pilot tests and an artificial recharge plant) were carried out in order to gain a better understanding of the functioning of the Genevese Aquifer and to assess the groundwater for the purpose of calibrating the future Genevese artificial recharge plant. The plant was supposed to be the solution to considerable groundwater overuse in the 1960s and 70s that had jeopardized continued use of the water by the wells on both the French and Swiss sides of the border. The studies conducted demonstrated, first of all (before the introduction of artificial recharge) that the Genevese groundwater system had two distinct aquifers. The first, in the east, was directly dependent on natural recharge from the Arve River; and the second, in the west, collected water from the calcareous Sale `ve mountain range, across the quaternary glacial deposits located at the foot of the mountain. The two aquifers were connected by a transit zone, which ensured the balance of the levels between the two main zones. In this area, hydraulic gradients are low and so reverse movements are possible. The hydraulic evaluation carried out at the time highlighted various things, of which only one was perfectly well known: namely the volumes used by the Genevese and French wells. Other factors included measured

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rainfall, real infiltration of the rainwater (effective infiltration) as well as lateral inputs, levels and flow rates of the river (including seepage from watercourses into the groundwater). All this information was necessary in order to have the correctly-sized artificial recharge plant, taking into account the need for artificial replenishment so as to recover usable groundwater levels. It was still not known what the other factors were relating to inflows or how much was being lost to outlets. Now, 30 years later, with a clearer view of the hydraulic situation of the aquifer (more control points and a few decades of piezometric and hydraulic measurement), we realize that there are still many unknowns, especially in the southern part of the aquifer (the French section), since estimates made on the lateral inflows were proven incorrect by a number of drillings that revealed that there were no gravel or sand saturated levels. This is an important point of consideration in the transboundary management of the aquifer because when it came to discussing the pumping quota attributed to the French, in the framework of the 1978 agreement, and even when the agreement was up for renewal in 2007, many said that this quota should be calculated against the inflows from the French zone. In assessments done then and more recently and from checks made along the full length of the border, however, the estimated inflows do not exceed 600,000 m3 per year. The quota of 2 million m3 per year, accorded on the basis of the volumes that were being pumped by the French between 1974 and 1977, is therefore favourable to the French side but is not substantiated from a hydrogeological point of view. This example is a perfect illustration of the type of geological and hydrogeological detail that has to be factored into the study of an aquifer and which is indispensable for analysis purposes. Each party to a transboundary agreement is, thus, able to negotiate on a recognized scientific basis and, most importantly, no party ends up being disadvantaged due to a lack of scientific knowledge on the aquifer. With respect to Genevese groundwater and the increased knowledge of how it functions, a comprehensive study was launched in 2012. It will develop further over the coming years, thanks to hydraulic data that have been gathered in France and in Switzerland through global groundwater modelling. The outcome will help to determine which hydrogeological parameters still need to be developed and which geographical parts of the groundwater require additional study. The aim is for the Genevese transboundary aquifer to use the numerical model to develop an efficient and representative tool for better and more concerted shared groundwater management. MOVING FORWARD The UN ILC Draft Articles on the Law of Transboundary Aquifers represent, without doubt, a step forward in international water law. The UN

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Convention on the Law of Non-navigational Uses of International Watercourses (1997) offers a framework for managing international watercourses, but has left aside a major resource of freshwater, the one found in transboundary aquifers. It has been explained above and in various publications that the Convention does not cover all transboundary aquifers, leaving a vast majority of them outside its scope. Groundwater represents 97 per cent of available freshwater on earth, and most of it is found in transboundary aquifers. There are currently about 400 recognized transboundary aquifers, and this figure is constantly changing as the work of assessment and identification continues. This valuable freshwater resource therefore does not fall under the scope of any international instrument, leaving a wide gap in international water law. The aim of the Draft Articles and of Resolution 63/124 on the Law of Transboundary Aquifers is to offer a legal framework for the management of this important resource. While they are still an annex to a UN General Assembly Resolution, which has no binding force, the Draft Articles have already inspired two important instruments. An additional agreement The first instrument is the Agreement on the Guarani Aquifer System (GAS) signed on 2 October 2010 between the four riparian states of the aquifer system: Argentina, Brazil, Paraguay and Uruguay. The GAS Agreement is the first agreement related to a transboundary aquifer signed after the adoption of the Draft Articles and Resolution 63/124. It refers explicitly to the resolution in its preamble. The GAS Agreement can be seen as the first response to the UN General Assembly, which has ‘Encourage(d) the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of these draft articles’ (Resolution 63/124). In the Agreement, sovereignty appears as an important principle, with a strong emphasis in Articles 1 and 2. Article 1 affirms that Argentina, Brazil, Paraguay and Uruguay ‘are the sole owners of this resource’. It is notable that the Article 1 of this agreement refers to the notion of property, by stating that the riparian states are ‘the sole owners’ of the Guarani Aquifer System. While this affirmation can be interpreted as a first expression of the sovereignty principle in this Agreement, it is also a rejection of the theories calling for the consideration of water as a common heritage for humankind. The Guarani Aquifer System belongs to the four states, and is to be shared among them; it is their common property. The property paradigm expressed here does not forbid any cooperation or sharing of the resource among the concerned states. Article 2 reads as follows: ‘Each Party exercises territorial sovereignty over their respective shares of the Guarani Aquifer System, in accordance with their constitutional and legal provisions, and in agreement with the applicable norms of international law.’ And as in the case of Article 3 of the Draft

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Articles on the Law of Transboundary Aquifers, the emphasis on national sovereignty in Article 2 of the GAS Agreement is counterbalanced by the fact that reliance thereon must be framed in the context of ‘applicable international law’. The GAS Agreement adds another legal restraint coming from domestic constitutional law which is particularly relevant for countries that delegate groundwater competence to sub-state entities, such as states in Brazil, and provinces in Argentina (Sindico 2010). Following the example of the Draft Articles on the Law of Transboundary Aquifers, sovereignty in the GAS agreement is limited. It is furthermore tempered by the application of the obligation not to cause significant harm and of the principle of equitable and reasonable utilization (in Articles 3 and 4, respectively), as is the case in the Draft Articles on the Law of Transboundary Aquifers. The UNECE draft model provisions The draft model provisions on transboundary groundwaters prepared by two working groups established under the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) of the UN Economic Commission for Europe (UNECE) is the second instrument influenced by the Draft Articles. These draft provisions were developed taking inspiration from the UN ILC draft articles: ‘The present exercise builds on that instrument with a view to providing concrete guidance for implementing, with regard to groundwater, the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) in the light of the lessons learned and the experience gained from the implementation of the Convention’ (Draft model provisions 2012). The draft model provisions have however selected an ambiguous direction. After noting the difference in the terminology used in various instruments, the text states that ‘For the purposes of the present Model Provisions, the term ‘groundwaters’ refers to the water contained in a geological formation’. The text, however, also adds ‘The present Model Provisions also apply to the geological formation containing the water and allowing the flow of groundwater’. This last sentence obviously means that the model provisions are intended to apply to the aquifer, and not only to the groundwaters. The use of the term ‘allowing’ shows the understanding of the strong link in an aquifer between the water and the geology, and the two need to be considered together for effective management. At the same time, in the text of the draft model provisions it was chosen to use the word ‘groundwaters’ and not ‘aquifer’. This choice seems to be for two reasons: to keep coherence with the Water Convention, which speaks about groundwater, and certainly to avoid any debate on sovereignty that could be opened with the use of the term aquifer, as it relates not only to water – a moving thing – but also to a geological formation on which states can claim sovereignty (McCaffrey 2010). Using the word ‘groundwaters’ to mean ‘aquifer’, however, will certainly create confusion.

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CONCLUSION The principle of sovereignty embedded in the Draft Articles on the Law of Transboundary Aquifers reflects the current status of international law regarding transboundary freshwater resources and natural resources. Transboundary aquifers belong to both categories: (Sohnle 2012 & Pastori 2012) they are a source of freshwater and they are considered a natural resource because of their specific characteristic of bearing water underground. The ILC prepared the Draft Articles under the topic ‘Shared Natural Resources’. In reality, the sovereignty of States over their natural resources is limited, and so is their sovereignty over freshwater resources. Besides this principle on which a lot of noise is made, the Draft Articles include the following principles: the principle of equitable and reasonable utilization (Draft Articles 4 and 5), the obligation not to cause significant harm (Draft Article 6), and the general obligation of international law to cooperate. These three major rules impact on the sovereignty of the states. Their effect is to translate into legal rules the concept of the ‘community of interest’, to incorporate sustainability and other environmental concerns and to make cooperation the catalyst for the application of any of the mentioned articles (Tanzi 2010). The framework surrounding the concept of sovereignty in the Draft Articles is therefore very well designed and does not leave space for states to let the genie of sovereignty (meant as absolute sovereignty according to the assumption of the authors) out of the bottle (McCaffrey 2009). Finally the fact that, contrary to the UN Watercourse Convention, the Draft Articles include an article on ‘sovereignty’ is less dramatic than its critics maintain, as the UN Watercourse Convention also explicitly foresees the right of riparians to utilize the watercourse (Article 5(2)). As the ILC puts it: ‘the rule [expresses an] entitlement, namely that a watercourse State has the right, within its territory, to a reasonable and equitable share, or portion, of the uses and benefits of an international watercourse’ (ILC Draft Articles 1994, Berhmann & Stephan 2010). REFERENCES Barthes, R., Mythologies (London: Paladin Books, 1973). Behrmann, C. and Stephan R.M., ‘The UN Watercourse Convention and the Draft Articles on Transboundary Aquifers: the way ahead’, in Transboundary Aquifers, Challenges and New Direction, Pre-proceedings of ISARM 2010 Conference (Paris: UNESCO IHP, 2010). de los Cobos, G., ‘The aquifer recharge system of Geneva (Switzerland): a 20 year successful experience’, in Dillon, P.J. (Ed.), Management of Aquifer recharge for Sustainability (Lisse: AA Belkama Publishers, 2002). ———, ‘The Transboundary Aquifer of the Geneva region (Switzerland and France): successfully managed for 30 years by the State of Geneva and French

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border communities’, in Transboundary Aquifers, Challenges and New Direction, Pre-proceedings of ISARM 2010 Conference (Paris: UNESCO IHP, 2010). ———, L’eau sans frontie`re – quarante ans d’une gestion partage´e de la nappe d’eau souterraine du Genevois (Geneva: Slatkine, 2012). International Law Commission, Report of its fifty-sixth session, A/59/10 (United Nations, New York, 2004). ———, Report of its fifty-seventh session, A/60/10 (New York, NY: United Nations, 2005). ———, Report of its fifty-eighth session, A/61/10 (New York, NY: United Nations, 2006). McCaffrey S., ‘The International Law Commission adopts draft articles on transboundary aquifers’, The American Journal of International Law 103 (2009), pp. 272–93. ———, ‘Sovereignty and Cooperative Management of Shared Water Resources in a Time of Shrinking Availability: The Role of International Law’, in Transboundary Aquifers, Challenges and New Direction, Pre-proceedings of ISARM 2010 Conference (Paris: UNESCO IHP, 2010). ———, ‘The International Law Commission’s flawed Draft Articles on the Law of Transboundary Aquifers: the way forward’, Water International 36/5 (2011), pp. 566–72. Pastori, A., La soberanı´a de los Estados sobre recursos naturales de agua dulce y el Acuerdo sobre el Acuı´fero Guaranı´ (Boletı´n Geolo ´ gico y Minero, 2012). Sindico F., ‘The Guarani Aquifer System and the International Law of Transboundary Aquifers’, International Community Law Review 13 (2011), pp. 255–72. Sixth Committee, Report of the International Law Commission on the Work of its Fifty-fifth Session. Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its Fifty-eighth Session, Prepared by the Secretariat, UN A/CN.4/537 (New York, NY: United Nations, 2003). ———, Report of the International Law Commission on the Work of its Fifty-fifth Session. Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its Fifty-ninth Session, Prepared by the Secretariat, UN A/CN.4/549 (New York, NY: United Nations, 2004). ———, Report of the International Law Commission on the Work of its Fifty-fifth Session. Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its Fifty-ninth Session, Prepared by the Secretariat, UN A/CN.4/577 (New York, NY: United Nations, 2006). Sohnle J., ‘La gene`se du droit des aquife`res transfrontie`res, un feuilleton familial complexe (1ere partie)’, Revue Juridique de l’Environnement 2 (2010), pp. 221–36. Stephan, R.M., ‘Evolution of International Norms and Values for Transboundary Groundwater Governance’, in Turton, A.R., Roux, D., Claassen, M. and Hattingh, J. (eds), Governance as a Trialogue: Government-Society-Science in Transition (Berlin: Springer-Verlag, 2006). Tanzi, A., ‘International Water Law and Transboundary Water Resources, a Framework for Sharing,’ oral presentation, International Conference ‘Transboundary Aquifers: Challenges and New Directions (ISARM2010) (Paris: UNESCO IHP, 2010).

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United Nations Economic Commission for Europe, Draft model provisions on transboundary groundwaters, ECE/MP.WAT/WG.2/2012/L.3, Geneva, 2012. Working Group on Shared Natural Resources, Report of the Working Group, UN A/CN.4/L.681, New York, 2005. ———, Report of the Working Group, UN A/CN.4/L.683 (New York, NY: United Nations, 2006). Yamada C., Special Rapporteur, Shared Natural Resources: First Report on Outlines, UN A/CN.4/533 (New York, NY: United Nations, 2003). ———, Special Rapporteur, Second Report on Shared Natural Resources: Transboundary Groundwaters, UN A/CN.4/539 (New York, NY: United Nations, 2004). ———, Special Rapporteur, Third Report on Shared Natural Resources: Transboundary Groundwaters, UN A/CN.4/551 (New York, NY: United Nations, 2005). ———, Special Rapporteur, Fifth Report on Shared Natural Resources: Transboundary Groundwaters, UN A/CN.4/591 (New York, NY: United Nations, 2008).

14

Sovereignty and the Procedural Rules of International Water Law

Owen McIntyre INTRODUCTION In order to examine the relationship between the procedural rules of international water law and the overarching international law principle of territorial sovereignty, it is helpful to begin with two key assumptions. The first regards the evolution of generally applicable rules of international water law as a long and arduous process of reconciling the introduction of legal restrictions upon states in their utilization and protection of shared waters situated within their territory with application of the traditional principle of territorial sovereignty. The second recognizes that the procedural rules of international water law, concerned with inter-state communication and the exchange of data relating to shared waters or to planned projects impacting thereon, play an increasingly pivotal role in customary and conventional regimes for transboundary water resources management. TERRITORIAL SOVEREIGNTY AND INTERNATIONAL WATER LAW Whereas the concept of state sovereignty has traditionally been understood as comprising three constituent elements (i.e., national independence, internal autonomy and territorial integrity), (Van der Vyver 1992: 475, French 2001: 378) it is the latter that interacts directly with international water law. The question of how the principle of territorial sovereignty impacts upon the cooperative practices of co-riparian states has always been absolutely central to the evolution of international water. Citing Huber’s ‘seminal analysis’ of this issue in 1907, McCaffrey points out that the four principal theoretical approaches to the development of international water law (i.e., the theories of ‘absolute territorial sovereignty’, ‘absolute territorial integrity’, ‘limited territorial sovereignty’ and ‘community of interests’), which are now so familiar to all scholars in this field, stem from the fact that ‘States have taken various positions on this

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question’ of ‘the applicability of the principle of territorial sovereignty to international watercourse systems’ (McCaffrey 2007: 112). The former International Law Commission (ILC) special rapporteur on the topic of international watercourses elsewhere notes that: it is precisely the difficulty of applying the notion of territorial sovereignty to water flowing in an international watercourse that underlies the controversies between states that began to arise toward the close of the nineteenth century and increased in frequency well into the twentieth. (McCaffrey 2007: 69)

Indeed, it is indicative of the central role of territorial sovereignty in this field that ‘the prevailing theory of international watercourse rights and obligations today’, which provides the basis for the principle of equitable and reasonable utilization – the cardinal rule of international water resources law – is that of the doctrine of ‘limited territorial sovereignty’, according to which ‘the sovereignty of a state over its territory is said to be ‘‘limited’’ by the obligation not to use that territory in such a way as to cause significant [legal] harm to other states’ (McCaffrey 2007: 135, citing, inter alia, Caflisch, Berber, Smith & Lammers). While the conceptual nature and normative character of the principle of territorial sovereignty is covered extensively elsewhere in this volume, it is useful at this point to consider which of the various aspects of sovereignty is likely to be impacted by the rise to prominence of procedural rules of international water law. The idea of ‘decisional sovereignty’ was first invoked by Australia in its pleadings before the International Court of Justice (ICJ) in the Nuclear Tests case (ICJ 1974: 253), where it argued that territorial sovereignty entitled states to both territorial inviolability and decisional inviolability (Hertogen 2012: 295–6, Brownlie 1983: 68–9). Decisional inviolability refers to a state’s ‘independent right to determine what acts shall take place within its territory’ and will be ‘violated by such an intrusion as impairs or destroys the unfettered capacity to decide’ (Hertogen 2012: 295). Hertogen characterizes decisional sovereignty as involving both ‘freedom to act’ and ‘freedom from external interference’ (Hertogen 2012: 296), either of which may be restricted in the case of either an upstream or downstream co-riparian state, though we are mainly concerned here with interference posed by procedural obligations with the decisional sovereignty of a state proposing a new use or project. The sovereign equality of states, the basis upon which rules of international water law may limit the sovereign discretion of one state to the extent necessary and proportionate to safeguard the sovereign rights of another (PCA 1925: 839, ICJ 1996 Separate Opinion of Judge Shahabuddeen: 394–5), can therefore be understood in terms of equality of decisional sovereignty when considering the limitations imposed by procedural rules.

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THE SIGNIFICANCE OF PROCEDURAL RULES As regards the second assumption, it has long been understood that a watercourse state planning a new use or project needs to notify co-riparian states likely to be affected by that use or project. This is the source rule from which most of the procedural rules of international water law derive and is one of the most fundamental and well-established obligations of general international law relating to shared waters. For example, McCaffrey lists as ‘the three most fundamental obligations of international watercourse law – equitable utilization, prevention of harm, and notification of planned measures’ (McCaffrey 2007: 415), Indeed, notification would appear to arise necessarily from the former two substantive rules of international water law (ICJ 2010: paragraphs 68 & 77). The arbitral tribunal in the Lac Lanoux arbitration established as early as 1957 that, rather than granting a right of veto or right of consent upon an affected state, the generally accepted rules of international law merely require ‘States to seek the terms of an agreement by preliminary negotiations without making the exercise of their competence conditional on the conclusion of this agreement’ (Lac Lanoux 1957: paragraph 1065). While the requirement to enter into negotiations with a view to reaching agreement clearly implies a duty to notify, the full extent of the procedural engagement expected of the proposing state is made clear by the tribunal’s finding that this procedure cannot be reduced to purely formal requirements, such as taking note of complaints [rather] the upper riparian State, under the rules of good faith, has an obligation to take into consideration the various interests concerned, to seek to give them every satisfaction compatible with the pursuit of its own interests and to show that it has, in this matter, a real desire to reconcile the interests of the other riparian with its own. (Lac Lanoux 1957: paragraph 1068, McCaffrey 2007: 226)

This ambitious statement of the duty of proposing states undoubtedly inspired the ILC in its later elaboration of detailed procedural rules for facilitating meaningful communication between co-riparian states. In its decision in the recent Pulp Mills case the ICJ has placed very considerable emphasis on the importance of procedural requirements, both as legally-significant obligations in their own right and in terms of their role in giving practical effect to the key substantive rules of international water law (ICJ 2010). Not only did the Court stress the importance of timely prior notification of a planned project, it also highlighted the pivotal role of closely-related procedural requirements, such as that of transboundary environmental impact assessment (EIA), and of associated institutional arrangements, such as permanent joint commissions. Essentially, the Court recognized the ever-increasing integration of the rules of international water law by accepting that the procedural and substantive obligations are ‘intrinsically linked’ (ICJ 2010:

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paragraphs 68 and 77, McIntyre 2013: 239–65), and that the procedural requirements themselves, including the obligations of informing, notifying and negotiating, ‘constitute an integrated and indivisible whole in which [the established River Basin Organization (RBO)] plays an essential role’ (ICJ 2010: paragraphs 68, 87, 91 & 140). In addition, it can be persuasively argued that the single greatest contribution made to furthering the development of a coherent body of rules in this area by the 1997 United Nations (UN) Convention on the Law of the Non-navigational Uses of International Watercourses (1997) has been its detailed elaboration of a comprehensive set of procedural requirements. In addition to a discrete Part III on ‘Planned Measures’ – which consists of Articles 11–19 covering such issues as notification of planned measures, reply to such notification, the notifying state’s interim duty of nonimplementation, the conduct of consultations and notifications, and the situation in respect of urgent measures – the Convention otherwise provides under Article 9 for regular exchange of data and information; under Article 24 for the conduct of inter-state consultation on the management of an international watercourse; under Article 26 on the safe operation, maintenance and protection of installations and facilities; under Article 28 for urgent notification in emergency situations; and under Articles 32–33 for the settlement of disputes. Tellingly, Article 5 of the Convention, which sets out the cardinal principle of equitable and reasonable utilization, also requires watercourse states to ‘participate in the use, development and protection of an international watercourse in an equitable and reasonable manner’. Such participation is in turn linked to the general duty of watercourse states under Article 8 to ‘cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse’. Though the Convention has only recently entered into force, as the product of almost 25 years of intensive deliberation by the ILC and extensive engagement with states through the UN General Assembly, it must be considered highly persuasive in identifying and interpreting the relevant and applicable rules of general and customary international law. For example, shortly after the Convention was first adopted by the General Assembly for signature and ratification by states, the ICJ referred authoritatively to and quoted from the Convention in its judgment in a dispute concerning a major project on an international river (ICJ 1997: paragraph 85). AIMS AND METHODOLOGY This chapter seeks to explore the impact of considerations of territorial sovereignty upon the emergence and ongoing development of such procedural rules of international water law, and vice versa. In so doing, it takes a number of starting points. First, it analyses any explicit or implicit

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consideration of territorial sovereignty in judicial deliberation on the origin, legal status, nature, or normative content and implications of procedural rules and, additionally, relevant judicial deliberation on the development of the key substantive rules that the procedural rules support. This analysis focuses on the two key cases where the judicial forum in question had cause to consider and apply procedural rules – the Lac Lanoux arbitration of 1957 and the Pulp Mills case of 2010. Second, it will examine the views and concerns expressed by the members of the ILC during their deliberations on the key procedural provisions of the Commission’s seminal Draft Articles on the subject, which formed the basis of the 1997 United Nations Convention on the Law of the Non-navigational Uses of International Watercourses, arguably the most cogent and influential statement of the general rules of international law relating to shared water resources. Third, this chapter will conclude with some preliminary observations on the complex inter-relationship between the principle of territorial sovereignty and the ascendant procedural rules of international water law. CONSIDERATIONS OF SOVEREIGNTY Judicial deliberation The Lac Lanoux arbitration The seminal Lac Lanoux arbitration concerned a French plan to divert water from Lac Lanoux in southern France for the purposes of a hydroelectric project. Waters flow from Lac Lanoux into the Carol River before crossing the border into Spain and, though France had undertaken to return the diverted waters to the Carol River, Spain pressed France to arbitrate the dispute as it considered that the plan would violate its water rights under the 1856–66 Treaties of Bayonne. It is important to note that the arbitral tribunal in Lac Lanoux did not attempt to avoid addressing the fundamental question of the inter-relationship between territorial sovereignty and the rules of international water resources law, whether conventional or customary in origin. In so doing, it characterized sovereignty as a rebuttable legal presumption, which serves as a logical starting point for understanding the rights of states, but which can be negated by the existence of a contrary legal obligation. The tribunal stated that ‘[t]erritorial sovereignty acts as a presumption. It must yield to all international obligations, whatever their origin, but only to them’ (Lac Lanoux 1957: paragraph 1063, McCaffrey 2007: 223). It also made it quite clear, however, that the sovereign discretion to which ‘[a]ll still and running water, whether in the public or the private domain, shall be subject’ should not be casually displaced, so that the contrary obligations to which it had to yield ‘should be interpreted restrictively, because they derogated from sovereignty’ (Lac Lanoux 1957: paragraph 1063). Thus, the sovereign

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powers of a state could only be restricted by undertakings expressly agreed by the states in question or unambiguously imposed by clearly-established and generally applicable customary rules. Interestingly, this understanding of the normative character of territorial sovereignty as it applies in the context of shared water resources corresponds with that elaborated recently by the ILC in its 2008 Draft Articles on Transboundary Aquifers (ILC 2008), which confirms in Article 3, quite controversially (McCaffrey 2009: 274, Vick 2008: 191, McIntyre 2011: 237, Mechlem 2009: 803), that ‘[e]ach aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory’. The second sentence of Article 3, however, immediately provides for the limitation of states’ sovereign rights by contrary rules of international law, stating that each state ‘shall exercise its sovereignty in accordance with international law and the present draft articles’. In deciding not to recognize a requirement in international law for Spain’s prior consent, as a lower riparian state, for the plans of an upper riparian state (such as France) to develop a hydroelectric dam, the principle of territorial sovereignty was to the fore. While conceding that situations could arise where such ‘an essential restriction on the sovereignty of a State [...] may be allowed’, the tribunal reiterated that ‘these cases are exceptional and international case law does not readily recognize their existence, especially when they infringe upon the territorial sovereignty of a State, which would be true in the present case’ (Lac Lanoux 1957: paragraph 1065). The tribunal was concerned that this would be ‘to admit a ‘‘right of consent’’, a ‘‘right of veto’’, which at the discretion of one state paralyses another state’s exercise of its territorial competence’ (Ibid). Clearly, this was regarded as generally amounting to too great a restriction on the rights of a state, flowing from its territorial sovereignty, to utilize shared water resources. Indeed, the only restriction on the sovereign discretion of the upper riparian state that the tribunal could identify as existing under international law was that of a procedural obligation upon that state to enter into good faith negotiations with the lower riparian state with a view to reaching an agreement concerning the proposed project. It found that For this reason, international practice prefers to resort to less extreme solutions, limiting itself to requiring States to seek the terms of an agreement by preliminary negotiations without making the exercise of their competence conditional on the conclusion of this agreement. (Ibid)

It is quite clear that any such negotiations would need to be preceded by meaningful notification of all the relevant technical data concerning the proposed project, which a notified state can now reasonably expect to be effected by means of a process of EIA covering the project’s transboundary impacts and undertaken to an internationally acceptable standard (ICJ 2010: paragraphs 119 & 204). It is equally clear that, under established rules

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of international law, the notifying state need only make reasonable efforts in good faith to reach such an agreement, rather than requiring the conclusion of such an agreement in order to be legally permitted to proceed with the project. Indeed, the arbitral tribunal in Lac Lanoux elaborated on the nature of the requirements of ‘good faith’ in the context of meaningful inter-state negotiations, explaining that it precluded, inter alia, ‘an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, [and] systematic refusals to take into consideration adverse proposals or interests’ (Lac Lanoux 1957: paragraph 11, McCaffrey 2007: 469). This remains precisely the position in modern customary international law, as currently reflected and elaborated upon in Article 17 of the 1997 UN Watercourses Convention. One very interesting feature of the tribunal’s decision in Lac Lanoux for the purposes of the present analysis is that of the language used to justify the imposition of procedural rather than substantive obligations. By describing the contemporary practice of states as a ‘resort to less extreme solutions’, the tribunal would appear to regard the requirement for procedural engagement as the least restrictive available limitation on the territorial sovereignty of the upper riparian state likely to prove effective in safeguarding the legitimate interests of the lower riparian state. This language evokes the legal concept of proportionality, an equitable principle that requires, at its core, that any restriction imposed upon established rights must not go any further than is strictly necessary to achieve its legitimate aims (McIntyre 1997: 101). Despite this, any attempt to distinguish between procedural and substantive obligations in international water law and, more specifically, between the restrictive effect of each on the sovereignty of a state, is misleading. It must be remembered that the principle of proportionality also underlies every aspect of the process of equitable balancing of the interests of states, which is the cornerstone of equitable and reasonable utilization, the cardinal substantive principle of international water law (Higgins 1994: 230, Franck 1995: 71). A serious and determined effort therefore to achieve, in accordance with the requirements of good faith, an equitable and reasonable accommodation of the interests of the states concerned – an inherently substantive outcome – is implicit in the procedural obligations identified by the arbitral tribunal. Indeed, the tribunal itself stressed the need for the proposing state to consider a very wide range of interests, stating that ‘consideration must be given to all interests, whatever their nature, which may be affected by the works undertaken, even if they do not amount to a right’ (Lac Lanoux 1957: paragraph 1068). Thus, though only a clearly-established norm of international law could restrict a proposing state’s sovereign discretion to act – at least to the extent that it had certain, seemingly minimal, procedural obligations imposed upon it – these procedural obligations themselves impose an onerous duty to consider and, where possible, safeguard the broadly-understood interests of co-riparian states. This is a duty that is tantamount to the key substantive duty of

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international water law to ‘utilize an international watercourse in an equitable and reasonable manner’, as set out under Article 5(1) of the UN Watercourses Convention. In the same passage of its award, the tribunal hinted at the substantive outcome expected of this process of inter-state communication: the upper riparian State, under the rules of good faith, has an obligation to take into consideration the various interests concerned, to seek to give them every satisfaction compatible with the pursuit of its own interests and to show that it has, in this matter, a real desire to reconcile the interests of the other riparian with its own. (Ibid.)

This suggests that the procedural obligations imposed are not less restrictive of the territorial sovereignty of a proposing state but, instead, they provide an inescapable entry point or ‘gateway’ for the consideration of the broad interests of potentially affected co-riparian states in accordance with the key principles of equitable and reasonable utilization and/or prevention of significant transboundary harm (the ‘no harm’ rule). Even if the principle of proportionality might be understood as functioning on two levels – at the level of the identification of appropriate obligations to bind states having regard to the proportionality of the restriction imposed upon territorial sovereignty, and at the level of the equitable balancing of the needs of each watercourse state for the shared waters inherent to the principle of equitable and reasonable utilization – it appears that one inevitably leads to the other. The tribunal in Lac Lanoux appeared implicitly to recognize the unitary, integrated nature of the key procedural and substantive obligations of international water law, though it may not have appreciated the full implications of this position for territorial sovereignty. Thus, it is not so much that procedural obligations impinge less on territorial sovereignty than substantive obligations, but rather that the former impose substantive restrictions on the exercise of sovereign rights in a more discrete, even stealthy, manner. Many such procedural obligations amount, in effect, to substantive restrictions by the ‘back door’. Pulp Mills case More than 50 years after the Lac Lanoux case, in 2010 the ICJ had an opportunity to deliberate at length upon the legal nature and role of the procedural rules of international water law in the Pulp Mills case. This case involved a complaint by Argentina that Uruguay had violated applicable treaty rules by authorizing the construction of two pulp mills on the River Uruguay, which forms the border between the two countries. Though the Court was concerned with a conventional regime, the Statute of the River Uruguay concluded by the parties to the dispute in

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1975, the procedural and substantive obligations contained therein very closely reflect those imposed under customary international law, as now set out under the 1997 UN Watercourses Convention. The Court endorsed and further developed the Lac Lanoux arbitral tribunal’s view of the procedural and substantive rules of international water law as highly integrated. For example, grouping the various applicable procedural rules under the ‘portmanteau term’ of cooperation (McCaffrey 2007: 468, 470, citing Paul Reuter, ILC 1987: paragraphs 14 & 16), the Court stated that it is by cooperating that the States concerned can jointly manage the risks of damage to the environment that might be created by the plan initiated by one or other of them, so as to prevent the damage in question, through the performance of both the procedural and substantive obligations laid down. (ICJ 2010: paragraph 77)

The Court went on to explain that both types of obligation must function jointly in order to achieve the broad objectives of international water law: the two categories of obligations mentioned above complement one another perfectly ... whereas the substantive obligations are frequently worded in broad terms, the procedural obligations are narrower and more specific, so as to facilitate the implementation of the 1975 Statute [or the general substantive aims of international water law] through a process of continuous consultation between the parties concerned. (Ibid)

Clearly, then, it makes little sense to think of procedural obligations as less intrusive upon the principle of territorial sovereignty than substantive obligations, where both are so ‘intrinsically linked’ (ICJ 2010: paragraph 68, McIntyre 2013: 239–65). However, the Court only recognized such a ‘functional link’ where satisfaction of procedural obligations constitutes a key element of the due diligence requirements inherent to the key substantive obligations of equitable and reasonable utilization and the prevention of significant transboundary harm. It was therefore not prepared to accept the ‘indivisibility’ of both categories of rules (ICJ 2010: paragraph 72), so that a breach of procedural obligations would automatically entail a breach of related substantive obligations, finding instead that states may be ‘required to answer for those obligations separately’ (ICJ 2010: paragraph 79). In finding Uruguay to be in breach of procedural obligations that did not involve a breach of related substantive obligations (ICJ 2010: paragraph 265), the Court decided that ‘ordering the dismantling of the mill would not [...] constitute an appropriate remedy for the breach of procedural obligations’ (ICJ 2010: paragraph 275), considering instead that ‘its finding of wrongful conduct by Uruguay in respect of its procedural obligations per se constitutes a measure of satisfaction for Argentina’ (ICJ 2010: paragraph 269). Thus, it appears to have regarded breach of a purely procedural obligation as considerably less

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serious than breach of a procedural requirement constituting a central element of due diligence for the purpose of satisfying substantive duties. Perhaps such less solemn or weighty procedural obligations might well amount to a less restrictive limitation on the territorial sovereignty of states, as envisaged in Lac Lanoux, but such less serious obligations can only be identified post facto, for example where no significant harm actually results, so that the issue of the due diligence requirements of the no harm principle never arises. As regards procedural rules functionally linked to the principle of equitable and reasonable utilization, according to the reasoning of the Court it appears unlikely that a utilizing state’s breach of (purely) procedural rules could fail to result in an inequitable or unreasonable interference with another state’s interests, as ‘such utilization could not be considered to be equitable and reasonable if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account’ (ICJ 2010: paragraph 177). The scope for ‘purely’ procedural obligations, imposing fewer restrictions upon state sovereignty, therefore appears severely limited. Indeed, the ‘internal integration’ of procedural rules promoted by the Court, through its acceptance of Argentina’s contention that the suite of procedural obligations laid down under the 1975 Statute ‘constitute and integrated and indivisible whole in which [the RBO], as an organization, plays an essential role’ (ICJ 2010: paragraph 68), further ensures that few procedural requirements can be decoupled from the substantive obligations to which they give effect. For example, the Court appears to have accepted Argentina’s contention that Uruguay’s initial failure to inform pursuant to Article 7 of the 1975 Statute frustrated all the procedural requirements arising subsequently under Articles 7–12 of the Statute (ICJ 2010: paragraph 82). At any rate, the Court adopted a highly integrated vision of the functioning of the various procedural rules commonly included in international watercourse agreements or invoked under customary international water resources law, and sought to interpret and apply these requirements so as to guarantee their overall effectiveness in ensuring inter-state cooperation and realization of the objectives of the key substantive obligations of international water law (McIntyre 2013: 239–65). This is all the more so in light of the Court’s finding that a state planning a major project with the potential to impact upon a shared watercourse or co-riparian states is obliged to conduct an EIA that takes account of transboundary impacts as a ‘requirement under general international law’ (ICJ 2010: paragraphs 119 & 204). The transboundary aspects of an EIA process play a pivotal role in the effective performance of many procedural duties, including the duties to notify, consult and enter into negotiations, which are in turn central to the requirements of due diligence arising under the general duty to prevent transboundary harm. The Court also linked procedural obligations generally, of which the EIA is a key component, to the principle of equitable and reasonable utilization (ICJ 2010: paragraph 177). Thus the customary obligation to conduct an EIA forms yet another

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part of the ‘glue’ that binds together the procedural and substantive obligations of international water law. Also relevant to such ‘internal integration’ of international water law, the Court, consistent with the significance it attributed to procedural rules, emphasized the role of institutional arrangements, such as RBOs like CARU, without which it is very difficult to ensure effective procedural cooperation (ICJ 2010: paragraphs 68, 89 & 140). Of course, through facilitating procedural cooperation such bodies play a very important role in the elaboration and effective implementation of the key substantive principles of international water law. Thomas Franck, for example, observes that ‘sophist principles’, such as that of equitable and reasonable utilization, ‘usually require an effective, credible, institutionalized, and legitimate interpreter of the rule’s meaning in various instances’ (Franck 1995: 81–2, McIntyre 2007: 377). ILC discussion of the procedural rules The in-depth discussions conducted by the ILC in 1988 on the procedural provisions of the Commission’s as-yet incomplete Draft Articles make it quite clear that the Commission members were perfectly conscious of the far-reaching implications of the obligations contained therein for the sovereign discretion of watercourse states (ILC 1988). Such sensitivity was apparent among all international policy-makers working in this field at that time. For example, when it first endorsed the notion of sustainable development in 1989, the Governing Council of the United Nations Environment Programme (UNEP) went to considerable trouble to emphasize, perhaps somewhat unconvincingly, that sustainable development ‘does not imply in any way encroachment upon national sovereignty’ (UNEP 1989, French 2001: 398). This statement has added resonance in the area of international water law when one considers the striking parallels between the concepts of sustainable development and equitable and reasonable utilization, and the characterization of the latter as involving the practical implementation or ‘operationalization’ of the former, at least in the specific context of shared international water resources (Kroes 1997: 83, Wouters & Rieu-Clarke 2001: 283, McIntyre 2007: 247). General obligation to cooperate As regards then Draft Article 9, setting out the general obligation of coriparian states to cooperate, the ILC understood this obligation as ‘a logical premise of the procedural obligations enunciated in subsequent articles’, but nevertheless felt the need to specify the obligation’s foundations, which included ‘sovereign equality, territorial integrity and mutual benefit’ (ILC 1988, 2070th Meeting: paragraphs 73 & 74). Therefore, by linking the general obligation to cooperate to the fundamental principle of sovereign equality and to the general requirement to respect the territorial integrity

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of states, itself a key element of any traditional understanding of state sovereignty, the members of the Commission managed quite deftly to reconcile this obligation with the concept of territorial sovereignty, despite appearing to be quite well aware of its potential implications for the sovereign discretion of states. Indeed, the Commission’s focus in this regard appears to have been on those Draft Articles containing specific procedural obligations, rather than on the general obligation to cooperate, as when Mr Tomuschat, the Chairman of the Drafting Committee, noted that the Article providing for ‘an ongoing and systematic exchange of information [...] was therefore a specific application of the general obligation to cooperate laid down in article 9’ (ILC 1988, 2071st Meeting: paragraph 7). Regular exchange of data and information In introducing the Draft Article on ‘Regular exchange of data and information’ to the members of the ILC, Special Rapporteur Professor McCaffrey suggested the intrinsic link to the core substantive objectives of the instrument, and of general international water law, by reiterating that the Article’s dual stated purposes are ‘to ensure the equitable and reasonable utilization of an international watercourse’ and ‘to attain optimum utilization’ and, further, ‘that provision was being made not for an ad hoc process but for a continuing one’ (ILC 1988, 2050th Meeting: paragraph 13). In addition, on the topic of the proposed exemption in relation to the exchange of ‘sensitive information’, the Special Rapporteur reminded the members that the purpose of that particular provision was ‘to set out the minimum requirements necessary to ensure application of the principle of equitable utilization’ (ILC 1988, 2050th Meeting: paragraph 22). Similarly, Mr Yankov noted that this requirement ‘illustrated the principle of international cooperation and the role of such cooperation in the matter of prevention’ (ILC 1988, 2051st Meeting: paragraph 32). As regards the scope of the information to be exchanged, Mr Beesley argued that, in addition to the hydrological, meterological and hydrogeological information expressly referred to, other types of data should be included in the provision, ‘in particular [...] ecological and environmental data and [data related to] the need to conserve the living resources of rivers’ (ILC 1988, 2050th Meeting: paragraph 31). He also recognized the inherent significance of information exchange for the increasingly important objective of environmental protection, stating that ‘[e]cological and environmental considerations also required the obligation to collect and exchange information to be qualified as little as possible by competing considerations’ (ILC 1988, 2051st Meeting: paragraph 40). Later, pointing out that the categories of information alluded to ‘could not possibly be exhaustive in view of the diversity of international watercourses’, the Drafting Committee Chairman Mr Tomuschat, explained that ‘[t]he word

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‘ecological’ had been added to take account of the environmental concerns expressed within the Commission, particularly in regard to the living resources of watercourses’ (ILC 1988, 2071st Meeting: paragraph 13). Mr Mahiou, however, suggested that it might be better not to include ‘a clearer indication of the type of data to be exchanged’, favouring a ‘more flexible approach’ (ILC 1988, 2050th Meeting: paragraph 42). Both members also stressed the related ‘need to provide for the establishment by watercourse States of joint bodies or technical agencies responsible for considering all factors affecting riparian States’ (For example, Mr Mahiou, ILC 1988, 2050th Meeting: paragraph 43). Another commissioner, Mr Shi, agreed that ‘there was no reason to limit regular exchange to data and information concerning the physical characteristics of watercourses’ (ILC 1988, 2051st Meeting: paragraph 2). Of course, such an inclusive approach could facilitate exchange of a wide range of information, possibly including socioeconomic data relating to water use and dependency, which would promote equitable sharing of waters based on a distributive conception of equity – an understanding that might impact quite significantly on traditional conceptions of sovereign independence and discretion. Several members of the Commission, however, expressed serious concern in discussions on the regular exchange of information about the implications of such cooperative procedural requirements for the territorial sovereignty of watercourse states. For example, Mr Barsegov argued that Co-operation for the purpose of equitable, reasonable and optimal utilization of a watercourse must not detract in any way from the principle of the territorial sovereignty of States on the portion of the international waterway within their boundaries or from the principle of the permanent sovereignty of States over their natural resources (ILC 1988, 2051st Meeting: paragraph 27).

Thus, he suggested that ‘it would serve no useful purpose to try to regulate such cooperation in excessive detail’. Similarly, the Commission Chairman, casting doubt on the legal character of the ‘nebulous concepts’ of co-operation and good neighbourliness, stressed the importance of state sovereignty: The foundation for the standards that the Commission was elaborating was, after all, to be found in another standard, namely the sovereignty of all States over their resources, and particularly over the waters in the watercourses passing through their territories. (ILC 1988, 2051st Meeting: paras 53 and 54)

On this basis, he reminded the Commission that the Draft Articles were merely intended to form a set of residual rules, secondary to specific agreements entered into by watercourse states, and he contended, somewhat unconvincingly, that the provision on exchange of information ‘was designed to foster cooperation among States – not to

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develop a right that already existed’. On this basis he was critical of the Special Rapporteur for attempting to turn this requirement into a general legal obligation (ILC 1988, 2051st Meeting: paragraph 54). Of all the detailed discussion of this issue in the Commission, Mr Arangio-Ruiz probably did the most to try to reconcile the procedural obligation to exchange relevant information with traditional understanding of the principle of state sovereignty, noting that ‘an international watercourse, like the atmosphere, was a shared resource, yet that was perfectly reconcilable with the sovereignty of each State over the part of a watercourse flowing through its territory’ (ILC 1988, 2052nd Meeting: paragraph 11). He continued that Once the essentially ‘shared’ nature of international watercourses in general was acknowledged, the principle of cooperation stated in draft article 15 [16] applied as a matter of course, on the strength of the Charter of the United Nations and the relevant General Assembly Resolutions. Draft article 15 [16] therefore appeared to be fully justified, on the basis of that principle, as a matter de lege lata. The extent of the obligation to co-operate should be assessed on the basis of the exclusive right of each sovereign State, but also in proportion to the need for development of the resource and protection of the environment. (ILC 1988, 2052nd Meeting: paragraph 12)

Mr Arangio-Ruiz justified this potential restriction on state sovereignty on a number of grounds, including ‘the physical features of international watercourses, and their connection with the most vital interests of mankind’ (ILC 1988, 2052nd Meeting: paragraph 13), and the fact that ‘the exchange of data and information was in any event necessary for the purposes of implementing articles 6, 7 and 8 [9]’ on equitable and reasonable utilization and the duty of prevention (ILC 1988, 2052nd Meeting: paragraph 28). He also fully appreciated the important role to be played by joint cooperative institutions, which might be regarded as further impinging upon the sovereign freedom of action of states, noting that ‘the possibility of establishing joint bodies would be implicit’ in any provision ‘to the effect that watercourse States should cooperate in the collection and regular exchange of data and information’ (ILC 1988, 2052nd Meeting: paragraph 37). Notification of planned measures It is interesting, if not altogether surprising, to note the marked lack of concern among members of the ILC regarding the possible impact upon sovereign discretion of the various elements of the proposed obligation upon watercourse states to notify co-riparian states of planned measures likely to impact upon the international watercourse, despite the fact that this is arguably one of the few clear, concrete and unambiguously imperative obligations to eventually be included in the 1997 UN Watercourses

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Convention. For example, the requirement that a proposing state should refrain from implementing new measures during the six-month period proposed for notified states to study and evaluate their possible effects was adopted by the Commission almost without discussion (ILC 1988, 2072nd Meeting: paras 9–13). Though this requirement has obvious implications for sovereign states’ freedom of action, the ILC later justified its unchallenged inclusion on the grounds that it is ‘intended to assist watercourse States in ensuring that any measures they plan will not be inconsistent with their obligations under articles 5 and 7’ of the UN Convention (ILC 1994, Commentary: 114). Similarly, Mr Tomuschat, the chairman of the Drafting Committee, explained the stipulation in Draft Article 15 that ‘[t]he notified States shall communicate their findings to the notifying State as early as possible’ on the grounds that, ‘[s]ince the six-month suspension pending a reply from the notified State operated as a restriction on the sovereign right of the notifying State, the expectation of a reply ‘as early as possible’ seemed reasonable’ (ILC 1988, 2072nd Meeting: paragraph 17). Likewise, in supporting the requirement that a notified state provide the notifying state with a reasoned and documented explanation of any finding that the planned measures would be inconsistent with the principles of equitable and reasonable utilization and prevention of harm, Mr Barsegov again focused on sovereign rights, pointing out that any prohibition that prevented a State from building something in its own territory must be well-founded. Mere objections were not enough; proof was needed to show why a State should have its most essential sovereign rights restricted, especially in its own territory. (ILC 1988, 2072nd Meeting: paragraph 24)

The Special Rapporteur agreed that it was necessary to prevent ‘a State which asked another State to abstain from certain measures [...] from simply holding up a planned project at its whim’ (ILC 1988, 2072nd Meeting: paragraph 26). Consultations and negotiations concerning planned measures The requirement that states enter into consultations and negotiations with a view to arriving at an equitable resolution of any outstanding differences concerning planned measures did not prove at all controversial in the Commission’s discussions, despite the fact that the notifying state would be required to refrain from implementing the project for a further six-month period if so requested by the notified state. Mr Tomuschat simply explained that the Drafting Committee believed that ‘[t]he suspension of implementation of the planned measures was necessary because the consultations and negotiations would have no purpose if the State planning the measures could go ahead and implement them’ (ILC 1988, 2072nd Meeting: paragraph

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75). Similarly, regarding the proposed requirement that such consultations and negotiations ‘shall be conducted on the basis that each State must in good faith pay reasonable regard to the rights and legitimate interests of the other State’ (emphasis added), he justified this qualification on the grounds that ‘the word ‘‘interests’’ on its own would be much too broad, because it would also apply to interests not in conformity with the principles of international law’ (ILC 1988, 2073rd Meeting: paragraph 5). Thus the Commission appears to have taken a position similar to that of the arbitral tribunal in the Lac Lanoux arbitration, in that it recognized that application of the principle of territorial sovereignty could only be restricted by means of a recognized requirement of international law, meaningfully applied (Lac Lanoux 1957: paragraph 1063). CONCLUSION One should not be surprised that the historical development of a comprehensive and coherent body of rules of international water law has involved an ongoing, and sometimes contentious, effort to reconcile conceptions of states’ territorial sovereignty with the need to safeguard the interests of other watercourse states and to protect the watercourse itself. The development of modern frameworks for international environmental and natural resources law has been conspicuously characterized by the tension between these two imperatives ever since the 1972 UN Conference on the Human Environment in Stockholm. Principle 21 of the Stockholm Declaration on the Human Environment famously recognized both states’ ‘sovereign right to exploit their own resources pursuant to their own environmental policies’ and their ‘responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States’ (United Nations Conference on Environment and Development 1972), thereby ‘representing as it does a careful balance between the territorial sovereignty of a state, on the one hand, and a wider responsibility to the international community, on the other’ (French 2001: 381). Examining the true normative meaning of Stockholm Principle 21 some 15 years later, the Experts Group on Environmental Law of the (Brundtland) World Commission on Environment and Development noted that it amounted to a ‘reconciliation or a compromise’ between two separate principles which, when read individually, were ‘rather absolute’ (Munro & Lammers 1987: 77, French 2001: 381–2). In addition to being included subsequently in a bewildering range of international environmental instruments, versions of this rule – involving a similar compromise or reconciliation – have been restated as Principle 3.1 of the UNEP 1978 Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, as Article 2.1 of the UNECE 1992 Convention on the Protection Use of Transboundary Watercourses

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and International Lakes, and as Article 7 of the 1997 UN Watercourses Convention. It was also updated and restated as Principle 2 of the Rio Declaration and as Article 3 of the Biodiversity Convention, both of which were adopted by the UN Convention on Environment and Development in June 1992. Of course, as the ICJ made abundantly clear in its recent Pulp Mills judgment, such aspirational substantive norms as the duty of prevention of transboundary environmental harm can only be rendered operational, and thus meaningful, through the associated application of detailed procedural rules, which facilitate the effective inter-state communication and engagement required (McIntyre 2010, 2013). As French notes, ‘from the ‘‘no harm’’ principle has sprung international cooperation on an unprecedented scale’ (French 2001: 388). The efforts of international tribunals and the ILC to develop a coherent body of rules of international water law would appear to support the conclusion reached by French to the effect that ‘[s]overeignty must, therefore, not be treated as a static, immovable fact, but rather as a flexible tool through which states can more effectively act in an increasingly interdependent global society’ (French 2001: 399). It is interesting to note, however, that he proceeds to enumerate these very actions, saying ‘[i]t is through a nation state being sovereign – namely being in a position to regulate internal matters and negotiate at an external level – that it can most appropriately seek to conserve both its own and the global environment’ (emphasis added) (ibid.). Clearly, the latter action can only be initiated and carried out by means of the procedural norms outlined throughout this chapter, suggesting that such procedural inter-state engagement is the very essence of modern sovereignty, whereby ‘sovereignty is concerned with maintaining the existence of an active state within a relevant international community’ (ibid.). REFERENCES Brownlie, I., State Responsibility (Oxford: Oxford University Press, 1983). Franck, T.M., Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995). French, D., ‘A Reappraisal of Sovereignty in the Light of Global Environmental Concerns’, Legal Studies, 21/3 (2001), pp. 376–399. Hertogen, A., ‘Sovereignty as Decisional Independence over Domestic Affairs: The Dispute over Aviation in the EU Emissions Trading System’, Transnational Environmental Law, 1/2 (2012), p. 281. Higgins, R., Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994). International Court of Justice (ICJ), Nuclear Tests Cases (Australia v. France), Judgment, 20 December 1974. ICJ Reports 253 (1974). ———, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996. ICJ Reports 226 (1996).

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———, Gabcˇ´ı kovo–Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997. ICJ Reports 7 (1997). ———, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010 (2010). International Law Commission, Yearbook of the International Law Commission, Vol. 1 (International Law Commission, 1987). ———, Yearbook of the International Law Commission, Vol. I (Summary records of the fortieth session, 9 May–29 July 1988) (International Law Commission, 1988). ———, Draft articles on the law of the Non-navigational Uses of International Watercourses and Commentaries thereto and Resolution on Transboundary Confined Groundwater. Report of the International Law Commission on the work of its Forty-sixth Session (International Law Commission, 1994). ———, Report of the International Law Commission on the Work of Its Sixtieth Session, UN Doc. A/RES/63/124 (2009). UN GAOR, 62nd Sess., Suppl. No. 10, UN Doc. A/63/10 (2008). Kroes, M., ‘The Protection of International Watercourses as Sources of Fresh Water in the Interest of Future Generations’, in Brans, E.H.P., de Haan, E.J., Rinzema, J. and Nollkaemper, A. (eds), The Scarcity of Water: Emerging Legal and Policy Responses (The Hague: Kluwer Law International, 1997), p. 80. Lac Lanoux Arbitral Tribunal, ‘Lac Lanoux Arbitration (France v. Spain), award of 16 November 1957’, International Law Reports, 24 (1957), p. 101. McCaffrey, S.C., The Law of International Watercourses, 2nd ed. (Oxford: Oxford University Press, 2007). ———, ‘The International Law Commission Adopts Draft Articles on Transboundary Aquifers’, American Journal of International Law 103 (2009), p. 274. McIntyre, O., ‘Proportionality and Environmental Protection in European Community Law’, in Holder, J. (Ed.), The Impact of EC Environmental Law in the United Kingdom (Chichester: Wiley, 1997), p. 101. ———, Environmental Protection of International Watercourses under International Law (Aldershot: Ashgate Publishing, 2007). ———, ‘The Proceduralization and Growing Maturity of International Water Law’, Journal of Environmental Law 22/3 (2010), pp. 475–97. ———, ‘International Water Resources Law and the International Law Commission Draft Articles on Transboundary Aquifers: A Missed Opportunity for Cross-Fertilisation?’, International Community Law Review 13 (2011), pp. 237–54. ———, ‘The Contribution of Procedural Rules to the Environmental Protection of Transboundary Rivers’, in Boisson de Chazournes, L., Leb, C. and Tignino, M. (eds.), Freshwater and International Law: The Multiple Challenges (Cheltenham: Edward Elgar, 2013), pp. 239–65. Mechlem, K., ‘Moving Ahead in Protecting Freshwater Resources: The International Law Commission’s Draft Articles on Transboundary Aquifers’, Leiden Journal of International Law 22 (2009), p. 803. Munro, R. and Lammers, J., Environmental Protection and Sustainable Development (Report of the Experts Group on Environmental Law of the World Commission on Environment and Development (London: Graham and Trotman, 1987).

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Permanent Court of Arbitration, Island of PalmasArbitration (Netherlands v. US), 23 January 1925. RIAA: 829. Statute of the River Uruguay (Argentina and Uruguay), Signed by Argentina and Uruguay at Salto, Uruguay, 26 February 1975, entered into force 18 September 1976. 1295 United Nations Treaty Series No. 1-21425: 340. UN Convention on Environment and Development, Report of the United Nations Conference on the Human Environment, Stockholm, UN Doc. A/CONF/48/14/ REV.1 (1972). United Nations, ‘Convention on the Law of the Non-Navigational Uses of International Watercourses, (New York, 21 May 1997, not yet in force)’, International Legal Materials 36 (1997), p. 700. Van der Vyver, J., ‘State Sovereignty and the Environment in International Law’, South African Law Journal 109 (1992), p. 475. Vick, M.J., ‘International Water Law and Sovereignty: A Discussion of the ILC draft Articles on the Law of Transboundary Aquifers’, Pacific McGeorge Global Business and Development Law Journal 21/2 (2009), p. 191. Wouters, P. and Rieu-Clarke A., ‘The Role of International Water Law in Promoting Sustainable Development’, Water Law 12 (2001), p. 281.

15

Addressing Water Security Challenges: The International Law ‘Duty to Cooperate’ as a Limit on Absolute State Sovereignty

Patricia Wouters WATER SECURITY AND THE GLOBAL IMPERATIVE FOR COOPERATION In July 2011 the United Nations (UN) Security Council was asked to consider extending its peace and security remit to include environmental security; Germany claimed that the adverse impact of climate change heightened the potential for conflicts and regional insecurity and thus fell within the UN Security Council’s mandate.1 While the meeting acknowledged the importance and relevance of this approach, it was decided that such matters were not within the remit of the Security Council and would best be considered under the UN Framework Convention on Climate Change.2 Despite this, interest in this topic continues to grow and lingering questions remain over the extent to which environmental crises might be considered to be ‘threats to the peace’ under the meaning in Chapter VII of the UN Charter.3 Scholarship in this area continues to explore the notion in theory and practice4 and connection with water security is elaborated in a growing body of literature.5 Despite this, the role of the rule of law in international relations concerning transboundary water resources is often over-looked. This chapter focuses on water security through the prism of international law, exploring state sovereignty within the context of the duty to cooperate, as one of the fundamental tenets of the law of nations. At the global policy level, national governments, the UN and private and public sector bodies have identified the critical importance of water (and water security) to economic, social and environmental needs. A recent highlevel meeting at the UN concluded with a recommendation that the global community continues to seek ways to cooperate in the management of the world’s shared water resources.6 Secretary of State Hillary Clinton addressed the group and emphasized the importance of water: ‘I think water should be a priority in every nation’s foreign policy and domestic agenda, and we need to work together to advance cooperation on shared waters.’7 It is a view shared by former heads of state – the InterAction Council (IAC), which

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studied this topic at its recent annual meeting (2011), and has called for ‘Placing water at the forefront of the global political agenda and linking climate change research and adaptation programs to water issues’.8 The Council reiterated its call for the UN Security Council to make water a top priority. ‘The future political impact of water scarcity may be devastating,’ says former Canadian Prime Minister and IAC co-chair Jean Chre ´tien. ‘Using water the way we have in the past simply will not sustain humanity in future. The IAC is calling on the United Nations Security Council to recognize water as one of the top security concerns facing the global community.’9 Despite this call for action by former world leaders, the UN Security Council continues to limit the reach of its mandate under Chapter VII of the UN Charter. In a recent report, Kofi Annan, the former Secretary General of the UN, identified the ‘imperative of collective action’ as essential for achieving the core purposes of the UN Charter: In a world of interconnected threats and challenges, it is in each country’s selfinterest that all of them are addressed effectively. Hence, the cause of larger freedom can only be advanced by broad, deep and sustained global cooperation among states. Such cooperation is possible if every country’s policies take into account not only the needs of its own citizens but also the needs of others. This kind of cooperation not only advances everyone’s interests but also recognizes our common humanity. (K. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc A/59/2005 (2005), p. 6, paragraph 18)

Transboundary water resources illustrate in a way that no other natural resource can link the complex interdependencies directly to its development and management. While sovereign claims aimed at capturing this precious resource might lead to conflict, water can also be a catalyst for peace and security. Water is fluid, soft, and yielding. But water will wear away rock, which is rigid and cannot yield. As a rule, whatever is fluid, soft, and yielding will overcome whatever is rigid and hard. This is another paradox: what is soft is strong. (Lao Tzu)

GLOBAL WATER CHALLENGES: WATER SECURITY ISSUES LINKED WITH NATIONAL SOVEREIGN CLAIMS ON SHARED INTERNATIONAL WATERS Water security issues abound in a raft of recent reports, including from the usual players such as the UN, World Bank and regional development banks, and water-related non-governmental organizations, but also, remarkably, from important new actors such as national government security units, private banks, corporations and even the World Economic Forum.

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Together these reports warn of imminent water insecurity and forecast the cascading adverse impacts that will result (or, in some cases, already occur). Thus, the McKinsey Report and the Maplecroft Risk Index (2012), the World Resources Institute and the World Economic Forum, suggest that by 2030 close to half of the world’s water demand will come from just four countries – China, India, South Africa and Brazil – and predict that competing uses for water will result in a 40 per cent shortage in supply in the same period.10 A recent US Intelligence Community Assessment, Global Water Security, highlighted the security challenges related to water: During the next 10 years, many countries important to the United States will experience water problems – shortages, poor water quality, or floods – that will risk instability and state failure, increase regional tensions, and distract them from working with the United States on important US policy objectives. Between now and 2040, fresh water availability will not keep up with demand absent more effective management of water resources. Water problems will hinder the ability of key countries to produce food and generate energy, posing a risk to global food markets and hobbling economic growth. As a result of demographic and economic development pressures, North Africa, the Middle East, and South Asia will face major challenges coping with water problems (USA ICA Report, Global Water Security, February 2012).11

In such a context of growing water insecurity, national governments jealously guard their sovereign interests over economic resources and in controlling water resources to meet domestic needs and important national security objectives. With more than 250 major transboundary watercourses shared across national borders in diverse regions in all parts of the world, however, the question of how competing needs can be met peacefully is a critical one. The global community has attempted to address this issue, first within the context of the Hague World Water Forum of March 2000, where the ministerial declaration, Water Security in the Twenty-First Century, listed seven ‘main challenges’ to achieving water security: (1) meeting basic needs; (2) securing food supply; (3) protecting ecosystems; (4) sharing water resources; (5) managing risks; (6) valuing water; and (7) governing water wisely.12 It is a theme that has evolved through successive world water meetings convened under the auspices of the World Water Council and also through meetings convened by the UN, the World Bank and regional development banks, and various regional bodies and institutions (e.g., Stockholm World Water Week and Singapore Water Week). The topic of water security, however, while garnering considerable attention and debate, is somewhat problematic. Is it not too broad a notion, offered as a panacea for all things to all stakeholders? Let us drill down into the normativity of the concept in international law. A number of definitions of ‘water security’ have been advanced, but for the purpose of this study it is here defined as ‘the state of having secure

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access to water; the assured freedom from poverty of, or want for, water for life’.13 This developmental approach focuses on three core issues as the central issues related to water security: i) availability; ii) access; and iii) addressing conflicts-of-use. Water insecurity arises in an international context (i.e., at a state–state level) where there are insufficient qualities/quantities of water to meet the demands for access by stakeholders and there are ineffective mechanisms to redress this lack of availability or access. This chapter explores the evolution of the rules of international law that govern water security issues, and in particular those that enable the legal regime to address challenges related to availability, access, and conflicts-of-use. THE DUTY TO COOPERATE AND WATER SECURITY While international law continues to evolve to meet ever-changing challenges, fundamental principles anchor its core aims and objectives, including those of equity, fairness, and cooperation.14 The law of nations is founded on the duty to cooperate,15 expressed in the UN Charter and numerous treaties, including in the water field. The UN is ‘based on the principle of the sovereign equality of all its Members’ (UN Charter, Article 2), who agree to ‘settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’ and ‘pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of [...] universal respect for, and observance of, human rights and fundamental freedoms for all’.16 Despite the fact that the moral authority of Article 2(4) has been challenged in light of international events, it remains a legitimate aspirational cornerstone of the law of nations, still relevant to current day.17 As we go forward in examining water security within this context, let us begin with examining its origins in the fundamental tenets of the UN Charter. Under the UN Charter (Article 1) member states commit: 1. To maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations that might lead to a breach of the peace. 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for

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fundamental freedoms for all without distinction as to race, sex, language, or religion. 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends. Each of these provisions has direct relevance to the topic under study here and highlights at once the twin pillars – universality and solidarity – which are central to the law of nations. Thus, all states have co-relative rights and duties under the over-arching goals of maintaining international peace and security and achieving international cooperation. The rules on state responsibility explain, for example, that Every State, by virtue of its membership in the international community, has a legal interest in the protection of certain basic rights and the fulfilment of certain essential obligations.18

Within the transboundary water domain, these legal entitlements and obligations are captured under the notion of hydro-diplomacy, which requires all watercourse states to ensure the peaceful management of their shared transboundary water resources.19 The rule of law in international water law revolves around the duty to cooperate (explored more fully below) and provides the parameters for prescribing the limits of state sovereignty. This will be examined next, with an introductory overview of the historical evolution of the norms of international law that apply in this field. ADDRESSING WATER SECURITY ISSUES: THE HISTORICAL CONTEXT OF TREATY AND STATE PRACTICE International water law has evolved over the past two centuries, from its origins where it was concerned with navigational uses and commerce, to its more contemporary concerns with ecosystem protection and addressing climate change impacts. There is extensive treaty practice in this field and yet two-thirds of the world’s 263 international river basins and major transboundary aquifer systems, lack any type of cooperative management framework.20 At the global level, two important UN conventions provide framework instruments for the development and management of international waters. The UN Convention on the Law of the NonNavigational Uses of International Watercourses (UNWC)21 and the UN Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE TWC),22 offer complementary instruments, each aimed at providing guidance to watercourse states in the management of their shared freshwater resources.23 The UNWC focuses, broadly, on use-allocation, while the UNECE TWC is concerned primarily with limiting transboundary impact

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and pollution control.24 The UN continues its work on shared aquifers, which remains under consideration by Resolution of the UN.25 In addition, the UN has adopted a resolution on the human right to water and sanitation, which ‘Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights’ (UN GA Resolution 64/292. The Human Right to Water and Sanitation). The combined impact of the UN’s work on water is substantial and continues to influence both treaty and state practice in the field. Although the UNWC has yet to enter into force, this appears inevitable within the near future, requiring only six more binding endorsements.26 The UNECE TWC, which is now open for universal endorsement, will extend the reach of its legal norms and processes related to limiting transboundary impact. And the UN Resolution on the Human Right to Water and Sanitation is already building a body of work on the topic under the Human Rights Council’s independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation in her annual reports to the General Assembly.27 The historical evolution of these instruments provides the context for their growing influence, which impacts state sovereignty in a myriad of ways. The UNWC arose out of demands by watercourse states raised in the UN General Assembly in the 1960s, as national governments sought to harness the uses of shared transboundary water resources. These conflicts led the UN General Assembly to call on the International Law Commission (ILC) to undertake its study on the topic. Following almost 30 years work, the ILC presented its first consolidated draft articles in 1994; these were debated and re-drafted by the UN (Working Group of the Whole) and finally adopted in 1997 by UN Resolution as the UNWC.28 Containing 37 articles with a 14-article annex, the instrument was adopted by a vote of 104 states in favour, three against (Turkey, China and Burundi) and 26 abstentions. The text was opened for signature and as at December 2012 requires an additional six more states entered into force on 17 August 2014 with the 35th party to ratify the Convention. In May 2014, Vietnam became the 35th country to ratify the convention, bringing the Convention into force. The Convention officially came into force on 17 August 2014.29 The governing substantive rules of the UNWC include the norm of equitable and reasonable utilization ‘consistent with adequate protection of the watercourse’ (Article 5)30 and the duty to ‘protect and preserve the ecosystems of international watercourses’ (Article 20). The substantive rules are supported by a suite of procedural rules (Part III), connected to and enhanced by the duty to cooperate (Article 8). The legal test for any new or altered use of the shared waters of an international watercourse involves the identification of ‘all relevant factors’, which are to be ‘considered together and a determination as to what qualifies as an equitable and reasonable use is based upon the whole’.31 This balancing of all interests in an on-going

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temporal context is a central theme of the UNWC, anchored in the duty to cooperate, found in Article 8, which runs as follows: UNWC ARTICLE 8 – GENERAL OBLIGATION TO COOPERATE 1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse. 2. In determining the manner of such cooperation, watercourse States may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and procedures in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions. This provision not only bridges the substantive and procedural rules of the UNWC, but provides new substantive and procedural obligations in its own right, linked closely with the governing substantive rule of the Convention: equitable and reasonable use. This is reflected and elaborated upon in Article 5(2), which provides that, ‘Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner’. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention (emphasis added by the author). A direct corollary to the duty to cooperate is the obligation that watercourse states resolve any disputes related to the development and management of their shared international water resources in a peaceful manner. The UNWC provides an extensive provision on dispute settlement (Article 33) that includes options for watercourse states in determining how they will address dispute prevention and settlement issues. This approach aligns with the fundamental tenets of the UN Charter and UN practice in this area. Read together, the UNWC provides an operational framework for the duty to cooperate in the use of international watercourses based upon the substantive and procedural provisions of the instrument.32 Watercourse states have a duty and a right to cooperate on all aspects – from useallocation, protection of the watercourse, ecosystem preservation, flood protection and pollution abatement. Thus, the key operational principle at the heart of the UNWC, and arguably across the domain of international water law, is the duty to cooperate (in substance and in procedure). This provides a prescription for the legal parameters of watercourse state actions and limits all claims of absolute sovereignty.

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The UNECE TWC provides an important reference point for prescribing the limits on state sovereignty. Endorsed by close to 40 states and the European Union Commission, the TWC has recently been opened for universal adoption.33 The core substantive rule of the TWC is found in Article 2, which provides, ‘The Parties shall take all appropriate measures to prevent, control and reduce any transboundary impact’. This duty is supplemented by a series of more specific process-oriented obligations, including a requirement that Riparian Parties, shall cooperate on the basis of equality and reciprocity, in particular through bilateral and multilateral agreements, in order to develop harmonized policies, programmes and strategies covering the relevant catchment areas, or parts thereof, aimed at the prevention, control and reduction of transboundary impact and aimed at the protection of the environment of transboundary waters or the environment influenced by such waters, including the marine environment. (Article 2(6))

The duty to cooperate appears throughout the instrument, especially in the context of riparian parties who are held to a higher level of joint undertakings and engagement.34 Regional instruments, in Europe and in Africa as two important examples, demonstrate how cooperation is implemented across linked economic areas. In addition to the UNECE TWC, those European states that are EU members are covered by the EU Water Framework Directive,35 which requires member states to implement the necessary measures to achieve ‘good water status’ in all EU waters by 2015 (Article 4). Member states must report regularly on the status of their waters (measured subject to specific criteria in the Directive) under river basin management plans, which categorize waters across Europe (Article 13). Member states must identify designated authorities responsible for implementing the Directive at national levels. This process is on-going and has yielded results. The EU Water Framework Directive has limited application, but provides an added context for its member states who have limited their sovereignty under the EU umbrella. The UNECE TWC is a regional instrument that, now open for universal accession, provides a framework for enhanced cooperation among riparian parties. Southern African transboundary waters are regulated under the umbrella of the South African Development Community (SADC), which provided the platform for the conclusion in 2000 of the Revised Protocol on Shared Watercourses, replacing its predecessor.36 The Revised Protocol on Shared Watercourses provides the foundation for regional water development plans, recently agreed for its third phase.37 Under its Article 2, the Protocol provides that The overall objective of this Protocol is to foster closer cooperation for judicious, sustainable and co-ordinated management, protection and utilisation of shared watercourses and advance the SADC agenda of regional integration and poverty alleviation.

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Remarkably, the substantive rules mirror many of those contained in the UNWC; however there are some distinctions, such as the provision on inter-generational equity in Article 7(a). The duty to cooperate in Article 3(5), provides, ‘State Parties undertake to pursue and establish close co-operation with regard to the study and execution of all projects likely to have an effect on the regime of the shared watercourse’. This is underpinned by the institutional bodies created under Article 5, which makes the Water Sector Co-ordinating Unit responsible for monitoring implementation of the agreement and for the oversight of the transboundary watercourses spread across the region, including many countries that have agreements and institutional bodies in place. Despite the great variety of transboundary watercourses shared across Southern Africa, the impact of the Revised Protocol on Shared Watercourses and activities in accordance with it has led to the following observation, ‘Water has played a unifying role in the SADC region, leading to regional cooperation.’38 This summary of the evolution of the rules of international law that govern transboundary waters reveals the important cornerstones which provide the basis for addressing water insecurity: i) substantive rules (in treaty and customary law); ii) procedural rules (in treaty law); and iiii) institutional mechanisms (such as river basin organizations; meeting of the parties). Central to each of these is the over-arching rule of the law of nations – the duty to cooperate. The next section examines these elements in the context of current water insecurity issues, with a focus on international watercourses. ADDRESSING WATER SECURITY ISSUES THROUGH INTERNATIONAL WATER LAW International water law provides the foundation for de-securitizing water, and thus for removing the hard edge of national sovereignty.39 This is achieved through the elaboration of an extensive body of norms and processes that apply to the development and management of transboundary water resources, in rules of treaty and customary law. Providing the ‘rules of the game’ in the context of sovereign states provides the parameters for lawful actions in this field, based in large part on the notion of ‘limited territorial sovereignty’. This theory is at the heart of the duty to cooperate, balancing the co-relative interests and needs of watercourse states under the governing rule of ‘equitable and reasonable use’. This legal requirement to take into account the needs of other sates provides the framework for cooperation in this field.40 Nonetheless, aberrations occur. Unilateral actions by watercourse states (mostly upstream) fly in the face of the duty to cooperate. Incidents on the Nile (the current impasse on the Cooperative Framework Agreement), on many watercourses emanating from China, on the Tigris–Euphrates (Turkey’s continued development upstream) and on

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the Amu Darya (the Rogun Dam) are just some contemporary examples revealing the harsh realities of absolute sovereign claims and actions. With the growing development challenges across the globe, the potential for unilateral action on shared international watercourses will surely increase. This will be exacerbated by connected problems linked with the adverse impacts of climate change, issues related to burgeoning land grabs, and the water/energy/food nexus. As just one example, a recent report reveals that 11 of China’s provinces are water scarce and close to half of the country’s coal reserves, exploitation of which is very water intensive, are located in water-scarce regions. Energy is water intensive and possible sources for increased hydropower include transboundary watercourses such as the Mekong and the Salween.41 The rules and processes set forth in the UNWC and the UNECE TWC provide frameworks for tempering such unilateral actions. While water insecurity will affect nation states, its impact in fact has global consequences, which engage the interests and obligations of all states. We are witnessing the emergence of a new wave of normativity in the international rules that govern the world’s shared water resources – an obligation erga omnes of the duty to cooperate in the peaceful management of shared transboundary water resources.42 This global community-of-interests, recognized in jurisprudence from the Permanent Court of International Justice, in the River Oder case,43 and by the International Court of Justice44 in the recent Danube Dams and Pulp Mills cases, holds that ‘the basic concept which dominates this area of law is that of a community of interests of riparian States which in itself leads to a common legal right.’45 The Permanent Court of International Justice decision explained that: When consideration is given to the manner in which States have regarded the concrete situations arising out of the fact that a single waterway traverses or separates the territory of more than one State, and the possibility of fulfilling the requirements of justice and the considerations of utility which this fact places in relief, it is at once seen that a solution of the problem has been sought not in the idea of a right of passage in favour of upstream States, but in that of a community of interest of riparian States. This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any riparian State in relation to others.46

While this passage referred to navigational uses, its application in our contemporary setting is easily argued and already well-established under the Gabcikovo case. The global community has duties and entitlements related to the management of its shared water resources, confirmed in the treaty and state practice examined here and explored in scholarship relevant to this topic.47

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CONCLUSION This is a landmark occasion for cooperation in the Zambezi river basin. It has taken eight years from signing of the Agreement in 2004 to this event which marks the beginning of permanency in the governing of operations in the Zambezi river basin using the ZAMCOM Agreement as a guide and drawn in line with the revised SADC Protocol on Shared Watercourses. Michael Mutale, Executive Secretary for the Interim ZAMCOM Secretariat48

Despite Zambia not ratifying the regional agreement on the Zambezi, it has participated in recent basin-wide meetings, which demonstrates how cooperation operates in practice in the warm shadow of treaty and customary norms. A similar approach has been adopted under the Mekong Agreement, where China and Myanmar, not parties to the treaty, participate as observers in meetings of the Mekong River Commission. China, in response to the transboundary pollution that had adverse impacts downstream in Russia and in consideration of other transboundary issues with its neighbours, has established bilateral commissions to deal with the management of its shared international water resources.49 Meeting the challenges emanating from the imminent threats of water insecurity in the immediate, short- and long-term requires a programme of action. From the international legal perspective, claims of absolute state sovereignty over shared international water resources are unlawful unless they comply with the duty to cooperate. This obligation is realised through the implementation of the governing substantive rules (from treaties and customary law) and rules of procedure (treaty laws and regional practice) that cover the uses of international water resources. Despite the aspirational goals to achieving water security declared under the ministerial declaration, ‘Water Security in the Twenty-First Century’ (Hague World Water Forum 2006) – (1) meeting basic needs; (2) securing food supply; (3) protecting ecosystems; (4) sharing water resources; (5) managing risks; (6) valuing water; and (7) governing water wisely – a catalogue of complex challenges remain. The duty to cooperate, as a rule of international (water) law, provides an important tool for ‘smoothing the hard rock’ of sovereignty. NOTES 1 The Permanent Mission of Germany to the United Nations, New York, Statement of Priorities. Available at http://www.new-york-un.diplo.de/ Vertretung/newyorkvn/en/05/environment-and-climate-change.html. 2 Several delegations recommended that climate change should be dealt with under the UN Framework Convention on Climate Change and that the Security Council stick with more mainstream peace and security issues. See the unofficial record at http://www.un.org/News/Press/docs/2011/sc10332.doc.htm.

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3 Chapter VII is entitled, ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’; it begins with Article 39, which provides that ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’. Articles 41 and 42 provide for military and such other action as may be considered necessary to maintain or restore international peace and security. 4 Maria Julia Trombetta, ‘Environmental security and climate change: analysing the discourse’, Cambridge Review of International Affairs, 21/4 (2008), pp. 585–602. See also Brown O., Hammill A and McLeman R, ‘Climate change as the ‘new’ security threat: implications for Africa’, International Affairs, 83 (2007), pp. 1141–54. A recent study suggests that factors other than climate change – socioeconomic, political and geographic factors – play a more important role in conflict in East Africa (Burundi, Djibouti, Eritrea, Ethiopia, Kenya, Rwanda, Somalia, Tanzania and Uganda); however, hot temperatures and unusually wet periods appeared to increase the risk of conflict; it also determined that the effects of climate variability on conflict risk is different in different countries. See ‘Climate variability and conflict risk in East Africa measured by Boulder team’, available at: http://www.colorado.edu/news/ releases/2012/10/22/climate-variability-and-conflict-risk-east-africa-measuredboulder-team-0. 5 C. Leb and P. Wouters, ‘The Water Security Paradox and International Law: Securitisation as an Obstacle to Achieving Water Security and the Role of Law in De-Securitising the World’s Most Precious Resource’ in: B.A. Lankford, K. Bakker, M. Zeitoun and D. Conway (eds), Water Security: Principles, Perspectives and Practices (Earthscan Publications, London, 2013); P. Wouters, S. Vinogradov and B. Magsig, ‘Water Security, Hydrosolidarity, and International Law: A River runs through it’ Yearbook of International Environmental Law 19 (2009), pp. 97–134. J. Brunnee and S. J. Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’, The American Journal of International Law 91/ 1 (1997), pp. 26–59. 6 At a recent UN roundtable on water security convened in New York, the chair Under-Secretary Otero summarized the outcomes of the discussion: (i) (ii) (iii) (iv)

cooperation and collaboration as essential to advancing work in this area and to finding responses to water security challenges at the local, regional and global levels; the broad range of institutions required to deal with water and the need to build bridges across these; prioritizing water at national and international levels; to stop talking and to start doing; the need for more teaching, training, capacity enhancement at the country and regional level and a more coordinated engagement of the public and private sectors.

7 Full speech available at: http://www.individual.com/storyrss.php? story5163955447&hash5a5a8213efed4c4abc50c38ec7efb6ff6.

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8 InterAction Council, Final Communique ´, 29th Annual Plenary Meeting (29–31 May 2011), Que ´bec City, Canada. Available at: http://interactioncouncil.org/finalcommuniqu-42. The InterAction Council, a public-opinion group comprising 40 former heads of state, including Jean Chretien, Gro Brundtland, Bill Clinton and Nelson Mandela, announced that ‘more investment is needed to protect human health, prevent conflict, and ensure economic and environmentally vitality’. 9 ‘World confronts serious water crisis, former heads of government and experts warn in new report’, September 2012. Available at http://www.interactioncouncil. org/world-confronts-serious-water-crisis-former-heads-government-andexperts-warn-new-report. See a recent UN publication on water security, The Global Water Crisis: Addressing an Urgent Security Issue, 2012. Available at: http://www.inweh.unu.edu/WaterSecurity/documents/WaterSecurity_FINAL_ Aug2012.pdf. 10 See, inter alia, Mckinsey, Charting Our Water Future Economic Frameworks to Inform Decision-making, 2009. Maplecroft, ‘New Maplecroft index rates Pakistan and Egypt among nations facing ‘extreme’ water security risks’ http:// maplecroft.com/about/news/water-security.html; Royal Academy of Engineering, Global Water Security – an Engineering Perspective (The Royal Academy of Engineering 2010); World Economic Forum Global Agenda Council on Water, Global Agenda Council Reports 2010 (World Economic Forum Global Agenda Council on Water 2010). 11 Office of the Director of National Intelligence, Intelligence Community Assessment, Global Water Security, ICA 2012-08, 2 February 2012. Available at: http://www.dni.gov/files/documents/Special%20Report_ICA%20Global%20 Water%20Security.pdf. 12 Ministerial Declaration of The Hague on Water Security in the Twenty-First Century, 20 March 2000, The Hague, The Netherlands, 2000. Available at: http:// www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/ The_Hague_Declaration.pdf. 13 See definitions provided in Wouters et al., ‘A River Runs Through it’, pp. 104–5. 14 Thomas Franck, Fairness in International Law and Institutions 74 (1995). 15 P. Wouters, ‘‘‘Dynamic Cooperation’’ – exploring the origins and emergence of this rule of international law in the management of the world’s shared transboundary waters in the lingering shadow of sovereignty.’ (IUCN book, 2013) E. Elgar. 16 UN Charter, Articles 55 and 56. 17 Thomas Franck, ‘What Happens Now? The United Nations after Iraq’, The American Journal of International Law 97/3 (2003), pp. 607–20. Franck refers to his earlier writings on the topic and asks, ‘who killed Article 2(4) again’, referring to the unlawful use of the law of force in a series of recent military events, which he claims contravenes the UN Charter. 18 UN ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001). 2001 Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 33. 19 See a recent meeting on hydro-diplomacy – http://www.iucn.org/?11378/ Hydro-diplomacy-sharing-water-across-borders. ‘Hydro-diplomacy is a tool for states to balance interests related to national sovereignty while strengthening regional cooperation with countries sharing common resources. It is invaluable to ensure that shared water resources are managed efficiently,

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21

22

23

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sustainably and equitably,’ says Ganesh Pangare, Head of IUCN’s Asia Water Programme. ‘Hydro-diplomacy has a tremendous role to play in this context and goes well beyond the science of water management, by involving sovereignty, political security and economic considerations,’ says Alejandro Iza, Director IUCN Environmental Law Centre. Transboundary Waters: Sharing benefits, Sharing Responsibilities, UN Water Thematic Paper, 2008, available at http://www.unwater.org/downloads/ UNW_TRANSBOUNDARY.pdf. The Report sets the context: ‘Approximately 40 per cent of the world’s population lives in river and lake basins that comprise two or more countries, and perhaps even more significantly, over 90 per cent lives in countries that share basins. The existing 263 transboundary lake and river basins cover nearly one half of the Earth’s land surface and account for an estimated 60 per cent of global freshwater flow. A total of 145 States include territory within such basins, and 30 countries lie entirely within them. In addition, about 2 billion people worldwide depend on groundwater, which includes approximately 300 transboundary aquifer systems.’ 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UN, G.A. Res. 51/206, 51 UN GAOR Supp. No.49, at 341, UN Doc. A/51/49 (Vol. I) (1996), http://untreaty.un.org/ilc/texts/instrum ents/english/conventions/8_3_1997.pdf. 1992 UN Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 I.L.M. 1312 (entered into force 6 October 1996), http://www.unece.org/env/water/pdf/watercon.pdf. A. Tanzi, ‘The Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International Watercourses Report of the UNECE Task Force on Legal and Administrative Aspects (2000); on file with author. See also A. Rieu-Clarke, ‘The Role and Relevance of the UN Convention on the Law of the Non-navigational Uses of International Watercourses to the EU and its Member States’, British Yearbook of International Law 78 (2008), p. 389. P. Wouters, ‘What Lessons From Europe? A Comparative Analysis of the Legal Frameworks That Govern Europe’s Transboundary Waters’, ELR 36 (2006), p. 10290. See also A. Tanzi, ‘The Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International Watercourses Report of the UNECE Task Force on Legal and Administrative Aspects (2000); on file with author. UN Resolution 66/104, The Law of Transboundary Aquifers, under which the UN GA ‘encourages the States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers, taking into account the provisions of the draft articles annexed to its resolution 63/124’ and ‘to include in the provisional agenda of its sixty-eighth session the item entitled ‘‘The law of transboundary aquifers’’ and, in the light of written comments of governments, as well as views expressed in the debates of the Sixth Committee held at its sixty-third and sixty-sixth sessions, to continue to examine, inter alia, the question of the final form that might be given to the draft articles’ (9 December 2011).

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26 For the current status of the Convention, please refer to http://treaties.un.org/ Pages/ViewDetails.aspx?src5TREATY&mtdsg_no5XXVII-12&chapter527& lang5en, last accessed 11 December 2012. The following states are parties to the UNWC: Benin; Burkina Faso; Chad; Denmark; Finland; France; Germany; Greece; Guinea-Bissau; Hungary; Iraq; Italy; Jordan; Lebanon; Libya; Luxembourg; Morocco; Namibia; the Netherlands; Nigeria; Norway; Portugal; Qatar; South Africa; Spain; Sweden; Syria; Tunisia; and Uzbekistan; and the following are signatories (yet to take the necessary measures to have the Convention enter into force) Co ˆ te d’Ivoire; Paraguay; Venezuela; and Yemen. This is a total of 29 parties and four signatories. 27 Article 3 UN Resolution. UN Resolution on the Human Right to Water and Sanitation, UN doc. A/64/L.63/Rev.1* (26 July 2010). 28 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted 21 May 1997 by the General Assembly of the United Nations). Not yet in force. See General Assembly resolution 51/229, annex, Official Records of the General Assembly, 55st Session, Supplement No. 49 (A/51/49). 29 ‘‘United Nations Watercourses Convention Enters into Force,’’ UN Watercourses Convention Online User’s Guide, (August 18, 2014), available at http:// www.unwatercoursesconvention.org/news/united-nations-watercoursesconvention-enters-into-force/. 30 This finds concrete expression in the rule of equitable and reasonable use, as codified in Article 5(1), ‘Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.’ and from Article 6(3): ‘In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.’ 31 Article 6 of UNWC, ‘Factors relevant to equitable and reasonable utilization’ states that: 1. Utilization of an international watercourse in an equitable and reasonable manner within the meaning of Article 5 requires taking into account all relevant factors and circumstances, including: (a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) The social and economic needs of the watercourse States concerned; (c) The population dependent on the watercourse in each watercourse State; (d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse states; (e) Existing and potential uses of the watercourse; (f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use.

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2. In the application of Article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation. 3. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. 32 See UNWC, Articles 5(2), 14(a), 25(1) and 31. 33 On the verge of its 25th anniversary, the UNECE TWC has some 40 state parties and the European Union (Montenegro became the 40th party to the Convention on 23 June 2014). Among these states parties there is increased awareness of the necessity for transboundary cooperation to ensure that transboundary waters are used reasonably and equitably, and that transboundary impacts from pollution and development are prevented or at least reduced. http://www.icpdr.org/main/20-years-unece-water-convention and http://www.unece.org/index.php?id=35994. 34 UNECE TWC provides, Article 5, ‘The Parties shall cooperate in the conduct of research into and development of effective techniques for the prevention, control and reduction of transboundary impact’; Article 9 (1) ‘Riparian Parties shall on the basis of equality and reciprocity enter into bilateral or multilateral agreements or other arrangements, where these do not yet exist, or adapt existing ones, where necessary to eliminate the contradictions with the basic principles of this Convention, in order to define their mutual relations and conduct regarding the prevention, control and reduction of transboundary impact; and Article 9(4) ‘Joint bodies according to this Convention shall invite joint bodies, established by coastal States for the protection of the marine environment directly affected by transboundary impact, to cooperate in order to harmonize their work and to prevent, control and reduce the transboundary impact’. 35 Council and Parliament Directive 2000/60/EC, Establishing a Framework for Community Action in the Field of Water Policy, 2000 O.J. (L 327). 36 The SADC has a membership of 15 states, namely; Angola, Botswana, Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, United Republic of Tanzania, Zambia and Zimbabwe. The parties concluded initially the Protocol on Shared Watercourse Systems in the SADC Region (entered into force on 29 September 1998), which has now been repealed with the entry into force of the Revised Protocol. See Revised Protocol on Shared Watercourses in the Southern African Development Community, adopted 7 August 2000 and entered into force 22 September 2003, 40 I.L.M. 317 (2001), available at http:// www.sadc.int/index/browse/page/159. 37 ‘The SADC Water Division is currently coordinating implementation of the third phase of the Regional Strategic Action Plan on Integrated Water Resources Management and Development (RSAP) 2011–2015. The RSAP is the framework for action to achieve the sustainable development of water resources in the region through the development of water infrastructures on

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40 41

42

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the basis of sound water governance and water management. The RSAP III serves as a work plan to guide the development and implementation of activities in the SADC water Sector for the periods 2011–2015.’ See Implementation of Regional Strategic Action Plan on Integrated Water Resources Management and Development, available at http://www.sadc.int/ files/9913/3050/6323/RSAP_III_News.pdf. SADC website, http://www.kunenerak.org/governance/sadc/sadc+water +protocol.aspx. C. Leb and P. Wouters, ‘The Water Security Paradox and International Law: Securitisation as an Obstacle to Achieving Water Security and the Role of Law in De-securitising the World’s Most Precious Resource’ in B.A. Lankford, K. Bakker, M. Zeitoun and D. Conway (eds), Water Security: Principles, Perspectives and Practices (Earthscan Publications, London, 2013). Eyal Benvenisti, ‘Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law’, American Journal of International Law 90 (1996), pp. 384–415. HSCBC Global Research, ‘‘No Water, No Power – is there Enough Water to Fuel China’s Power Expansion?’’, 2012. Available at: HSBC Global Research, ‘‘Water Stress–Analysing the Global Challenges’’, 2011. Available at: http://chinainter nationalwaterlaw.org/pdf/resources/WaterStressAnalysingTheglobalChallenges. pdf. P. Wouters and A. D. Tarlock, ‘Tackling The World’s Water Crisis’ – Emerging Obligations Erga Omnes Requiring Cooperation in the Peaceful Management of Shared Water Resources: The Third Wave of Normativity in International Water Law’, forthcoming 2013, manuscript on file with author. Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, Permanent Court of International Justice, Series A, No. 23, p. 27. Gabı´kovo-Nagymaros Project Hungary-Slovakia International Court of Justice, September 25 1997. 37 ILM 162 (1998). Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, Permanent Court of International Justice, Series A, No. 23, p. 27. Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, Permanent Court of International Justice, Series A, No. 23, p. 27. Bruno Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in: Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Nijhoff, 1989); Fastenrath, U, et al. (eds) From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma (Oxford: Oxford University Press, 2011). Press Release (30 October 2012), ‘ZAMCOM to Hold Historical Meeting to Usher in its Permanency’ (on file with author). The Zambezi Watercourse Commission (ZAMCOM) convened the first meeting for one of the ZAMCOM Technical Committee (ZAMTEC) on Thursday 1 November 2012, where it discussed concrete steps on the operationalization of the ZAMCOM Agreement and financial resource mobilization for the organization’s activities. Representatives from the eight countries that share the Zambezi river basin attended the meeting in Gaborone, Botswana. Botswana hosts the Interim

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ZAMCOM Secretariat. The ZAMCOM Agreement, signed by the majority of the Zambezi Riparian States at Kasane in Botswana in 2004, came into force in 2011. It has three governing organs, namely the Council of Ministers, the ZAMTEC and the ZAMCOM Secretariat (ZAMSEC). The ZAMTEC meeting is expected to pave way for the governing of the organization whose objective is to ‘is to promote the equitable and reasonable utilization of the water resources of the Zambezi Watercourse as well as the efficient management and sustainable development thereof.’ 49 S. Vinogradov and P. Wouters, ‘Sino-Russian Transboundary Waters: A Legal Perspective on Cooperation’, Institute for Security and Development Policy, 2013.

REFERENCES 2030 Water Resources Group, Charting Our Water Future Economic Frameworks to Inform Decision Making, 2009. Available at: http://www.mckinsey.com/ App_Media/Reports/Water/Charting_Our_Water_Future_Full_Report_001. pdf. Annan K., In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc A/59/2005 (2005). Anonymous, ‘World confronts serious water crisis, former heads of government and experts warn in new report’, September 2012. Available at http://www. interactioncouncil.org/world-confronts-serious-water-crisis-former-headsgovernment-and-experts-warn-new-report. Brown, O., Hammill, A. and McLeman, R., ‘Climate change as the ‘‘new’’ security threat: implications for Africa’, International Affairs, 83 (2007), pp. 1141–54. Benvenisti, Eyal, ‘Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law’, American Journal of International Law 90 (1996), pp. 384–415. Brunnee J. and Toope, S.J., ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’, The American Journal of International Law 91/ 1 (1997), pp. 26–59. Council and Parliament Directive 2000/60/EC, Establishing a Framework for Community Action in the Field of Water Policy, 2000 O.J. (L 327). Fastenrath, U., et al. (eds), From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma (Oxford: Oxford University Press, 2011). Franck T., Fairness in International Law and Institutions (Clarendon Press, 1995). ———, ‘What Happens Now? The United Nations after Iraq’, The American Journal of International Law 97/ 3 (2003), pp. 607–20. HSBC, ‘Water Stress – Analysing The Global Challenges (HSBC, 2011). Implementation of Regional Strategic Action Plan on Integrated Water Resources Management and Development, available at http://www.sadc.int/files/9913/ 3050/6323/RSAP_III_News.pdf. Leb, C. and Wouters, P., ‘The Water Security Paradox and International Law: Securitisation as an Obstacle to Achieving Water Security and the Role of Law in De-Securitising the World’s Most Precious Resource’, in Lankford, B.A., Bakker, K., Zeitoun, M. and Conway, D. (eds), Water Security: Principles, Perspectives and Practices (London: Earthscan Publications, 2013).

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Maplecroft, ‘New Maplecroft index rates Pakistan and Egypt among nations facing ‘‘extreme’’ water security risks’, http://maplecroft.com/about/news/watersecurity.html. Ministerial Declaration of The Hague on Water Security in the Twenty-First Century, 20 March 2000, The Hague, The Netherlands, 2000. Available at: http://www.worldwatercouncil.org/fileadmin/wwc/Library/Official_Declarations/ The_Hague_Declaration.pdf. Rieu-Clarke A., ‘The Role and Relevance of the UN Convention on the Law of the Non-navigational Uses of International Watercourses to the EU and its Member States’, British Yearbook of International Law 78 (2008), p. 389. Royal Academy of Engineering, Global Water Security – an Engineering Perspective (The Royal Academy of Engineering 2010). Simma, Bruno, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Nijhoff, 1989). Tanzi A., ‘The Relationship between the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non Navigational Uses of International Watercourses Report of the UNECE Task Force on Legal and Administrative Aspects (2000). On file with author. Trombetta, Maria Julia, ‘Environmental security and climate change: analysing the discourse’, Cambridge Review of International Affairs, 21/4 (2008), pp. 585–602. UN, The Global Water Crisis: Addressing an Urgent Security Issue, 2012. Available at: http://www.inweh.unu.edu/WaterSecurity/documents/WaterSecurity_ FINAL_Aug2012.pdf. ———, Transboundary Waters: Sharing benefits, Sharing Responsibilities, UN Water Thematic Paper, 2008, available at http://www.unwater.org/downloads/ UNW_TRANSBOUNDARY.pdf. UN Convention, 1997 United Nations Convention on the Law of the NonNavigational Uses of International Watercourses (UN, G.A. Res. 51/206, 51 UN GAOR Supp. No.49, at 341, UN Doc. A/51/49 (Vol. I) (1996), http://untreaty.un. org/ilc/texts/instruments/english/conventions/8_3_1997.pdf. UN Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 I.L.M. 1312 (entered into force 6 October 1996), http://www. unece.org/env/water/pdf/watercon.pdf. UN General Assembly resolution 51/229, annex, Official Records of the General Assembly, 55st Session, Supplement No. 49 (A/51/49). UN International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001). 2001Yearbook of the International Law Commission, 2001, vol. II, Part Two, p. 33 World Economic Forum Global Agenda Council on Water, Global Agenda Council Reports 2010 (World Economic Forum Global Agenda Council on Water 2010). Wouters P., ‘What Lessons From Europe? A Comparative Analysis of the Legal Frameworks That Govern Europe’s Transboundary Waters’, ELR 36 (2006), p. 10290 ———, ‘‘Dynamic Cooperation’ in International Law and the Shadow of State Sovereignty in the Context of Transboundary Waters’, 3 Environmental Liability (2013).

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Wouters P., Vinogradov, S. and Magsig, B., ‘Water Security, Hydrosolidarity, and International Law: A River runs through it...’, Yearbook of International Environmental Law 19 (2009), pp. 97–134. Wouters P., and Huiping Chen, ‘China’s ‘Soft-Path’ to Transboundary Water Cooperation Examined in the Light of Two Global UN Water Conventions – Exploring the ‘Chinese Way’’, 22 Journal of Water Law (2013), p. 232. Wouters P., and Tarlock, A.D., ‘Tackling The World’s Water Crisis’ – Emerging Obligations Erga Omnes Requiring Cooperation in the Peaceful Management of Shared Water Resources: The Third Wave Of Normativity in International Water Law’, forthcoming 2013.

CASES Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, Permanent Court of International Justice, Series A, No. 23. http://www.icj-cij.org/pcij/series-a.php?p1=9&p2=1. Gabcˇ´ıkovo-Nagymaros Project Hungary-Slovakia International Court of Justice, September 25 1997. 37 ILM 162 (1998).

Part III

Regional Case Studies

16

Sovereignty and Equitable Utilization: a Regional Implementation Summary

Lilian del Castillo-Laborde CONSTRUING SOVEREIGNTY IN LEGAL TERMS As the starting point to address the legal scope of the concept of sovereignty, international law will be construed as the normative foundation of the present world system, the result of a social and political post-Westphalian reality, in turn based on ‘the foundational concept of sovereignty’ (Wilson: 59). When the term ‘sovereignty’ is used either in legal or political discussions some concern arises regarding its nature and exercise, as well as some queries: Is sovereignty at present a changing concept? Is it slowly becoming porous and weaker or on the contrary stronger and intolerant? Is there a crisis of sovereignty? Even if the answer to these queries exceeds the contents of this chapter, it would be pertinent to submit some thoughts. Briefly, ‘sovereignty’ could be defined as the supreme authority and the exercise of such authority (Calvo: 226). The term ‘sovereignty’ denotes the capacity a sovereign, actually a state, is vested with; it carries the connotation of discretionary use of power – arbitrariness, tyranny, even despotism – which inevitably comes to mind. It is not the image of King Solomon praying for wisdom, but the image of an absolute ruler exercising unlimited power. An initial limitation appears to be imposed by the sovereignty of other states, because, even when such behaviour might not be confronted at the domestic level, it would certainly be constrained to its national boundaries and would not impose itself on other states (Kelsen 1967: 63–5). As a matter of fact, when a state acts in the international community at large, it applies the rules of independence and equality demanding the indispensable mutual respect among its members. Traditionally, in the Western tradition at least, ‘the ruler is subject to the law’ (Larson & Jenks: 21). In a legal as well as political approach, sovereignty means the capacity to govern, involving an aggregate of competences and embedding jurisdiction, i.e. the capacity to create law and apply it (US 419 Chisholm v. Georgia [p. 429] Chief Justice Jay, Brierly’s, p. 46). Sovereignty implies

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independence from other subjects, and is the condition of statehood that every state deserves for itself and respects in other states (Kokott J., MPEPIL). A state’s capacity to govern, inasmuch as it is the origin and the result of independence and subsequent equality of states, is exclusive, but could be exercised jointly with other international subjects, whether states or international organizations. It does not imply a diminished but a joint exercise of sovereignty. From a legal standpoint, sovereign attributes are as much rights as they are duties because while a state has the right to be regarded as an independent entity, it also has the duty to respect the independence of other equal states. Moreover, it may be correctly inferred that duties should supersede rights; otherwise the independence of states would be more of a polite statement than a legal rule. On balance between rights and duties, duties are more relevant than rights because they are the measure of the enjoyment of rights (Kelsen: 263–6). The fact that emphasis may be placed on duties does not amount to shrinking state sovereignty but to abiding more closely to the rule of law which, if not respected, eventually engages international responsibility (Boisson de Chazournes 2011–2014).1 In no way, however, do the mutual equality and independence of states mean independence from the law, insofar as the international community and world order are based upon the assumption that it is a legal community, in other words, a community built upon the rule of law or the pre-eminence of law. This unavoidable postulate was expressly stated by the Draft Declaration codifying the Rights and Duties of States approved by the International Law Commission (ILC) in 1949, (United Nations General Assembly RES/A/375, at www.un.org) which declared that: ‘Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law’ (Article 16). How does sovereignty, embracing the Janus-faced equality and independence of states and its concomitant rights and duties, impinge upon the legal regime of internationally-shared natural resources, and especially of international water resources? It does it at two different levels, namely, addressing: i) who is entitled to use the resource, or right of access and utilization; and ii) how it should be utilized, or what the rules are for the utilization and management of the resources. Regarding the right of access and utilization, sovereignty lies with the territorial state, as will be discussed in the following paragraphs. Regarding the rules of utilization, sovereignty maintains the tension and the replicated confrontation between rights and duties, i.e. the right to use, embedding the uses, the sources and the availability of water, and the duty to respect the right of other states to use, also embed the uses, sources and availability of water. The painstaking effort of developing water law rules aims at surpassing that confrontation (Buirette: 20).

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SOVEREIGNTY, EQUITABLE UTILIZATION AND INTERNATIONAL FRESHWATER RESOURCES Territorial sovereignty of sates embeds right of access to the enjoyment of their natural elements and resources, and its right to their utilization (Brownlie’s: 204–5). It reinforces the right of states against proposals of internationalization of their natural resources and supports the entitlement of native colonized peoples to those resources in the post-World War II decolonization process. Concomitantly, in as early as its seventh session, the General Assembly – fostering the efforts towards decolonization – recommended to all member states that it was important ‘to refrain from acts, direct or indirect, designed to impede the exercise of the sovereignty of any State over its natural resources’ (United Nations, A/RES/626 (VII) 21 December 1952, Right to Exploit Freely Natural Wealth and Resources). Irrespective of the de-colonization perspective of this enunciation, what remains as a general rule is the ‘sovereignty of any State over its natural resources,’ reinforced by Resolution 1515 (XV) of 15 December 1960, in which the General Assembly ‘Recommends further that the sovereign right of every State to dispose of its wealth and its natural resources should be respected in conformity with the rights and duties of States under international law (Paragraph 5)’. In 1962, with the decolonization process under way, the General Assembly declared that the ‘Permanent sovereignty over natural resources’ is a ‘basic constituent of the right to self-determination’. In addition it stated that ‘The free and beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered by the natural respect of States based on their sovereign equality’ and in the dispositive paragraph requested ‘the Secretary-General to continue the study of the various aspects of permanent sovereignty over natural resources, taking into account the desire of Member States to ensure the protection of their sovereign rights while encouraging international co-operation in the field of economic development’ (Resolution 1803 (XVII), of 8 December 1962). Certainly, the sovereign rights of states over their territory and its resources, even if they cannot be detached from the relations of power that are intrinsic to international relations, are moulded by the rules of international law when it comes to their utilization and their rules, especially for international waters (Brzezinski: 397–411). Inasmuch as sovereignty comprises both rights and duties, not only rights and not only duties, and addresses different objects, namely the access to water resources and the principles for their utilization, the antinomy disappears between sovereignty and cooperation because sovereignty over access does not affect cooperation over the uses, e.g. the 1979 Agreement between Argentina, Brazil and Paraguay accepting to make the successive hydropower plants on the upper and lower stretches of the Parana´ River

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compatible; (UNTS 2216, pp. 212–16) or between sovereignty and environmental protection, e.g. the 2001 MERCOSUR Framework Agreement on Environment (in force) between Argentina, Brazil, Paraguay and Uruguay (at www.mercosur.int in Portuguese and Spanish); sovereignty and sustainable development, e.g. the commitment to sustainable use of the resource embedded in the 2010 Agreement on the Guarani Aquifer entered into by Argentina, Brazil, Paraguay and Uruguay (not yet in force) (unofficial English version at www.internationalwaterlaw.org/documents/ regionaldocs/Guarani_Aquifer_Agreement–English.pdf) sovereignty and joint management, e.g. the goal of carrying on joint programmes and works expressed in the 1995 Agreement Establishing the Tri-National Commission for the Pilcomayo River between Argentina, Bolivia and Paraguay (at www.pilcomayo.net/web, in Spanish). In fact, these agreements regarding the utilization of transboundary natural resources are the express consent of states to the introduction of sound behavioural patterns. Articles of agreement limit the discretionary conduct of states, curbing sovereignty through international law constraints, the key purpose of the rule of law. With regard to the utilization of water resources, whenever emphasis is placed not on the duties but on the rights of states, supporting the unrestricted right to water uses, sources and availability, the doctrine of ‘absolute territorial sovereignty’ and its variations, including the ‘Harmon doctrine’ and the ‘Prior appropriation’ case law come into play (Brown Weiss: 189–94). In contrast, whenever not only the rights of states are considered but also their duties with regard to other states, to the commons and to the environment, supporting a non-abusive and if possible consensual exercise of water uses, sources and availability within the province of international law, what comes into play is the doctrines of ‘limited or restricted territorial sovereignty’, ‘absolute territorial integrity’ and ‘community of interest’ (Arcari: 63–119, Barberis: 15–26, McCaffrey: 112–78). Mostly, these doctrines take into account disputes concerning competitive water quantity uses and freedom of navigation, but they are also applicable to water quality issues, which at present are among the most pressing cases. The urban and industrial developments of the last decades have dramatically increased the degree of pollution, consumption and depletion of water, equating the concerns over water quantity with those over water quality. As a result, the advent of international environmental law has introduced a new level of erga omnes constraints to the domestic and international management of natural resources in general and water resources in particular (Principle 1, 1978 UNEP’s Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States). International water law has elaborated flexible, adaptive rules for the utilization of international water bodies in consonance with the flow

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pattern, evaporation capacity and changing nature of water – from liquid to gaseous to solid (Fisher, Governance, esp.: 59–84). Then, the substantive international law rule for water uses is essentially the right to the reasonable and equitable utilization of water resources in the territory of the state, leading to the equitable share of benefits with the other riparian states. The principle of equitable utilization works vis-a-vis another riparian state: the equitable qualification conditioning the right of utilization. Then, insofar as utilization is a right of the territorial state, equitable utilization is the limit of that right. Besides, the right to the utilization of the resource has not only the limitation of being ‘equitable’ but pegged to it, the duty not to cause (through it) significant harm to another riparian state. Also germane to these conditions for water utilization is the need for and the duty of cooperation among the riparian states of international waters, a substantive rule dealt with by both the Permanent Court of International Justice (Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder, 10 September 1929, pp. 26–28) and the International Court of Justice (ICJ) (Gabcˇ´ıkovo-Nagymaros Project case (Hungary/Slovakia), 1997, paras. 17 (p. 15) and 142 (p. 75); Case Concerning Pulp Mills on the River Uruguay (Argentina/Uruguay), judgment dated 20 April 2010, paras. 174 (p. 64) and 281 (p. 95)) in their case-law. Cooperation is cause and consequence of the right to equitable and reasonable utilization. As a matter of fact, the above-mentioned description of substantive maxims of international water law does not ignore but disregards the issue that the priority order in which these rules are enunciated is not spacific (Arcari: 1–26, Bourne: 216, Caflisch: 55–9, McCaffrey: 353–7). The rule of equitable utilization therefore embraces but at the same time conditions the rights of riparian states of international water resources, working as a compromise for the exercise of their sovereign rights, while the rules of no harm and cooperation embrace the duties of states regarding the utilization of water resources in an international setting. We shall now exemplify to what extent the agreements entered into by South American states concerning their shared waters have helped to develop the rule of access to resources as well as the rule of equitable utilization, no harm and cooperation. In order to assess the regional adherence to one or more of these principles, we will browse through the catalogue of existing regional declarations, resolutions and agreements. THE DEVELOPMENT OF INTERNATIONAL WATER LAW IN EARLY SOUTH AMERICAN PRACTICE Countries in America, and especially in South America, have addressed in a number of instruments the recognition of international rules for the

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utilization of international water bodies in the region. Starting off with the early ones, it is worth recalling the initiative to prepare a draft convention on international river uses launched in 1928 at the Sixth American International Conference, held in La Habana, Cuba, that year from 16 January to 20 February (www.oas.org/sap/peacefund/VirtualLibrary/virtualLibrary. html#22). The Conference approved a resolution recommending that the Pan-American Union should request that the Inter-American Board of Jurists deal with the regulation of the industrial and agricultural use of international rivers. The 1933 Draft Declaration on the Industrial and Agricultural Use of International Rivers The outcome of the task requested from the Inter-American Board of Jurists was a document, described as a ‘declaration’ but actually a ‘draft convention’, which was submitted to the next Inter-American Conference. This Conference, the Seventh International Conference of American States, took place in Montevideo, Uruguay, in 1933 and approved the Declaration Concerning the Industrial and Agricultural Use of International Rivers (Resolution LXXII, Montevideo, 24 December 1933).2 The 1933 Draft Declaration stated the basic rules recognized at that time by a vast majority of American States for the use of their international watercourses; in a certain way, it became a basic model upon which other Latin American agreements were based. Underlying its significance is the fact that, even if it was only a declaration, three delegations – those of Mexico, the United States and Venezuela – appended their reservations. Mexico’s reservation concerned the whole Declaration, without expressing disagreement with any particular clause, while the United States refrained from approving the Declaration on the basis that it was not ‘sufficiently comprehensive in scope to be properly applicable to the particular problems involved in the adjustment of its rights in the international rivers in which it is interested’. Venezuela, in contrast, pointed out that the issue of the industrial and agricultural use of international rivers was addressed in already existing partial agreements with their neighbouring countries (International American Conferences: 13).3 The 1933 Draft Declaration is a substantive precedent for water law principles in the Americas and, accordingly, it will be analysed in some detail. One provision of the Draft Declaration was specifically devoted to the utilization of shared river stretches, introducing different standards for contiguous and successive international rivers, a distinction that was to be maintained in future regional instruments. The Draft Declaration asserted that: The States have the exclusive right to use, for industrial or agricultural purposes, the margin which is under their jurisdiction of the waters of international rivers. This right, however, is conditioned in its exercise upon the necessity of not

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injuring the equal right due to the neighboring State over the margin under its jurisdiction. In consequence, no State may, without the consent of the other riparian State, introduce into water courses of an international character, for the industrial or agricultural use of their waters, any alteration which may prove harmful to the margin of the other interesting State. (Article 2)

In other provisions dealing with successive international river stretches, the Declaration adds in Article 4 that ‘The same principles shall be applied to successive rivers as those established in Articles 2 and 3, dealing with contiguous rivers’. The Declaration also specifies that no works, either in successive or contiguous rivers, should impair freedom of navigation of those rivers but, on the contrary, they should improve navigation to the extent possible (Articles 5 and 6). Furthermore, when the Declaration asserts the rule of access or the exclusive right of riparian states to use the waters of international rivers flowing within their territory, this is a statement of sovereign rights and a corollary of sovereignty. Nevertheless, states’ exclusive rights have two constraints (Article 5): i. the duty to avoid harmful effects on other riparian states, both in contiguous and successive rivers; and, ii. the duties: (a) to facilitate that other riparian states may carry out studies in their own territory and on their account, when these studies were necessary for the exploitation of the hydraulic power of international waters, and, (b) not to impair the freedom of navigation with works for industrial or agricultural uses. Additionally, in a provision common to contiguous and successive international rivers, the Declaration addresses the core issue of how to implement the duty not to cause harm to other riparian states, expressing that in those cases ‘an agreement of the Parties shall always be necessary’ (Article 3), reinforcing the consensual utilization of international watercourses. Nevertheless, in the event of damage, ‘the works may only be executed after adjustment of the incident regarding indemnity, reparation or compensation of the damages, in accordance with the procedures indicated below’ (ibid). Turning finally to dispute settlement, the 1933 Draft Declaration in its Articles 7, 8, 9 and 10, describes in great detail the procedures referred to in Article 3, conceived around the consecutive stages of notification, prior consultation, negotiation and, finally, arbitration as a jurisdictional mechanism. The first step is notification, and in that regard the Declaration states that,

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The works which a State plans to perform in international waters shall be previously announced to the other riparian States, or condominium States. The announcement shall be accompanied by the necessary technical documentation in order that other interested States may assess the scope of such works, together with the name of the technical expert or experts who are to deal, if necessary, with the international side of the matter. (Article 7)

As we can observe, there is a clear emphasis on avoiding disputes and harmful effects that might result from activities being carried out without consultation with the other riparians. The Draft Declaration reinforced the implementation of the procedure for dispute settlement indicating that, together with the documentation, the announcement shall mention the names of the experts who will deal with the matter, an indication aimed at avoiding delays and wasting time. Once the documentation has been conveyed to the other riparian state or states, the latter shall answer the notification within a three-month period. Following the same procedure as in the case of notification, if the answer includes observations, an expert or experts shall be appointed in order to allow the setting up of a Mixed Technical Commission. Once established, the Commission shall deliver its opinion within a period of six months. If no agreement occurs, the reports of the members shall be submitted to the governments (Article 8). A period of diplomatic negotiations shall ensue, and once again, if no agreement is reached, a conciliation mechanism, which is not described in the Draft Declaration, shall be carried out in accordance with agreements already in force between the parties. The conciliation body shall deliver its award, which should take into account the opinion of the abovementioned Mixed Technical Commission, within a period of three months, which may be extended (Article 9). However, the conciliatory mechanism is not mandatory for the parties, which will have a period of one month to decide whether they will or will not accept the conciliation award. In the case that they do not accept, at the request of the interested parties the issue at stake shall then be submitted to arbitration. The Court of Arbitration will be set up pursuant to the procedure provided for in the Second Hague Convention for the Pacific Settlement of International Disputes (Article 10). The 1933 Draft Declaration consequently acknowledged the exclusive right of a territorial state to the use of the international rivers within its territory and, without expressly including the word ‘sovereignty’, dealt with the principle of sovereignty of states over their natural resources, addressing the rule of access. Additionally, upon turning to the rules of utilization, the Draft Declaration overturned the legality of causing harm to other riparian states as a result of the utilization of international rivers; in other words, it declared it illegal to harm the rights of other riparian states to the benefit of water uses in their territory. The Draft Declaration therefore proved helpful to demonstrate the special nature of the

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sovereignty of states over their international waters. Inevitably, the elusive nature of water shapes a state’s prerogatives one way or another; it is a resource that flows; it is, in fact, liquid sovereignty. Not to talk about clouds, flying rivers in the sky.4 In 1941, a regional conference of the La Plata Basin Countries – Argentina, Bolivia, Brazil, Paraguay and Uruguay – took place in Montevideo, Uruguay, to address the issues regarding navigation and the industrial and agricultural uses of the La Plata Basin watercourses. The Declaration undersigned by the riparian states recommended, among other topics, to enter into special ‘agreements amongst themselves regarding the use of the said rivers for industrial and agricultural purposes’, according to the guidelines adopted by the 1933 Montevideo Conference (Resolution concerning the establishment of joint technical commissions to study the hydrographic system of the Plata River, Regional Conference of the Countries of the Rı´o de la Plata, 6 February 1941, Document A/5409, ‘Legal problems relating to the utilization and use of international rivers – Report by the Secretary-General’, Yearbook ILC, II/2 (1974), pp. 212–13). In 1965, the Organization of American States (OAS), successor of the PanAmerican Union, prepared a Draft Convention on the Industrial and Agricultural Use of International Rivers and Lakes. The 1965 Draft Convention, which based itself on the 1933 Montevideo Declaration as a working framework, was approved at the Rio de Janeiro meeting of the OAS, but was not ratified by its member states.5 The Draft Convention departed from the wording of the Montevideo Declaration on some points and included the exclusive right to use the waters of an international water course when stating that ‘The right of a State to industrial or agricultural utilization of the waters of an international river or lake that are under its sovereignty does not imply non-recognition of the eventual right of other riparian States’ (Article 4). At the same time, the Draft Convention introduced a less demanding no-harm rule when it pointed out that the utilization of the waters of an international river should not impair freedom of navigation and should not ‘cause substantial injury, according to international law, to the riparian States or alteration to their boundaries’ (Article 5). Then, the duty of states to avoid any alteration which may prove harmful in terms of the 1933 Draft Declaration became the duty not to cause substantial injury in terms of the 1965 Draft Convention, an attribute of objective as well as subjective assessment. In fact, determining whether any injury is, or is not, substantial depends on the observer and in the last resort, relies on a judge. The 1965 Draft Convention added that if the use ‘results or may result in damage or injury to another interested State, the consent of that interested State shall be required, as well as the payment or indemnification for any damage or harm done, when such is claimed’ (Article 6). As a consequence, with the consent of the other riparian states, or through payment for the damage caused, harmful consequences would not amount to a breach of the legal duty, but to

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tolerable or manageable consequences of water uses by other riparian countries. The duty of notification to and prior consultation with other riparian states was also stated in the 1965 Draft Convention, in the same wording as the 1933 Draft Declaration (Articles 8 and 9). However, the procedures for the settlement of disputes that may arise between riparian states include the establishment of a Joint Commission (Article 9), with the difference that in the event that the dispute is not settled, the American states shall apply the peaceful procedures already existing in the InterAmerican system (Article 10). The 1965 Draft Convention did not come into force, but remains as a guiding source for other instruments dealing with the management of international rivers in the region. In 1966 the Inter-American Economic and Social Council, an organ of the OAS, approved a resolution dealing with the ‘Control and Economic Utilization of Hydrographic Basins and Streams in Latin America’ (Resolution 24-M/66, 1966). The Resolution was adopted within the framework of the Alliance for Progress, an initiative launched by President John F. Kennedy in March 1961, aimed at increasing economic cooperation between the United States and Latin American countries, and recommended that, with the technical and financial assistance of international agencies, the member countries of the Alliance should carry out joint studies for promoting the utilization of the basins of the region for transportation, for the production of electric power, for irrigation and other uses, as well as for flood control (Final Report of the Fourth Annual Meeting of the Inter-American Economic and Social Council, OAS, Washington D.C., 1966, p. 48). THE DEVELOPMENT OF INTERNATIONAL WATER LAW IN BILATERAL SOUTH AMERICAN AGREEMENTS The richness in terms of water resources of the South American subcontinent and the circumstance that in a number of cases rivers serve as natural boundaries between countries foster the negotiations of agreements for their utilization. Leaving aside navigation – of utmost importance in the La Plata Basin and also important in the Amazon Basin and other watercourses in the region – the focus of this section will be devoted to bilateral or multilateral agreements for water uses, especially those applying the principles of international water law and water management rules. The list of agreements referred to in the following paragraphs is not exhaustive but illustrative and will be examined mainly in chronological order. A particular water system in South America is the Titicaca Lake Basin, comprising the Desaguadero River, shared by Bolivia and Peru, and the Poopo ´ Lake and the Salar of Coipasa, in Bolivian territory. Both countries

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have entered into agreements regulating specific uses; the first one in 1935 concerning the Titicaca Lake fisheries, two others on 20 April and 17 July 1955 referring to the joint uses of its water and the studies to be carried on for this purpose and, among several others, an agreement signed on 19 February 1957 aimed at the study of hydropower projects. A bi-national commission was established in the meantime through bilateral understandings and some years later, on 21 June 1993, a Bi-National Autonomous Authority for the Basin was set up, with wider functions. These instruments pursue the equitable and efficient use of the water resources of the basin, especially with regard to their economic benefits, as well as the economic development of the region. The rule of equitable utilization is agreed upon at the basin level. In 1946, the first agreement concerning the Utilization of the Rapids of the Uruguay River in the Salto Grande Area, a stretch shared between Argentina and Uruguay, was entered into by these countries. The Agreement stressed that the watercourse ‘will be jointly utilized in equal shares’ by both riparians (Article 1), an application of the equitable utilization principle. Nevertheless, the Agreement drew a difference between the shared management of the dam and the domestic uses upstream the dam, which it states will be managed by each riparian ‘within their respective jurisdictions’. However, permissions shall be granted after a report of the Mixed Technical Commission, implying previous notification. Nevertheless, the Agreement did not foresee a special procedure if observations arose regarding the possible transboundary effects of the projected activities (Article 5). The Agreement also stressed the riparians’ duties affirming that ‘Measures adopted in implementation of this Agreement shall affect none of the rights of the High Contracting Parties with respect to sovereignty and jurisdiction, or their navigation rights in the Uruguay River’ (Article 10. Salto Grande Treaty, Argentina–Uruguay, 30 December 1946, UNTS 671, pp. 26–40). The subsequent 1973 Agreement dealt exclusively with the conditions for the construction and operation of the Salto Grande Hydropower facilities, setting forth that future works will not impair the sovereign rights and jurisdiction of the parties regarding sailing along the Uruguay River (Agreement, Argentina–Uruguay, 30 December 1973, Article 6). On 26 April 1963, Brazil and Uruguay signed an agreement establishing a Joint Commission for the Development of the Mirim Lagoon Basin, subsequently modified by the agreements dated 5 August 1965, 20 May 1974 and, finally, 7 July 1977, the last of which is in force at present. The Joint Commission is in charge of the implementation of the agreement. The Mirim Lagoon is a freshwater body that has several tributaries, among them the Yaguaro ´ n River, a border river between both countries, and which is connected by a channel to the Los Patos Lagoon, a larger lake debouching into the Atlantic Ocean. It is a rich ecosystem with extensive wetlands, one

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of which is under international surveillance. Although the purpose of the Agreement is to benefit the development of the basin area and the proper management of its water bodies, it does not include principles for water administration when establishing the goals of the Commission (Article 4 of the 1977 Agreement). This gap was filled when the same Parties entered into an agreement for the border Cuareim River and its basin in 1991. Almost at the same time, on 16 June 1971, Argentina and Paraguay agreed on setting up a Joint Commission with competence in the stretch of the Parana´ River (COMIP), which both countries shared (UNTS 2216, pp. 212–16). In that instrument the contracting parties upheld the principles set forth in the Act of Asuncio ´ n of 3 June 1971, which became the legal framework for the uses of the shared Parana´ River stretch between Argentina and Paraguay. On 3 December 1973 Argentina and Paraguay entered into the Treaty of Yacyreta´ (UNTS 1380, pp. 80–4), which established the bilateral agency (EBY) in charge of building and managing the Yacyreta´ hydropower facility on the stretch of the Parana´ River below the Itaipu ´ Dam. The Treaty reaffirmed Resolution 25 (IV) (Act of Asuncio ´ n) of the La Plata Basin Treaty system, and recorded that both countries had accepted the water law principles established by the 1967 La Plata Basin Treaty and the 1971 Act of Asuncio ´ n with regard to the uses of international rivers, a further legitimacy for the Act of Asuncio ´ n principles and rules among the La Plata Basin contracting parties. In 1973, the water law principle of ‘consensual utilization of international rivers’ and the duty ‘not to cause substantial harm to the other riparian States’ were introduced by the treaty between Argentina and Uruguay concerning the Rı´o de la Plata River and its corresponding Maritime Front (the RPT) (19 November 1973, UNTS 1295, pp. 293–319). A negotiating mechanism was foreseen in the event that a project ‘might cause significant harm to the navigation interests of the other Party or the regime of the River’. The process of notification, consultation and negotiation in the face of the risk of substantial harm to navigation or to the regime of the river was in future to be channelled through the Rı´o de la Plata Administrative Commission (Articles 17–22, RPT). One particular feature included in the Rı´o de la Plata River Treaty is the dividing line for the riverbed and subsoil established for the exploitation of the riverbed and subsoil resources, halving in almost equal sections the approximately 30,000 km2 of the river surface (Article 41, RPT). The possibility of oil and gas fields, not yet a reality, prompted the inclusion of this provision. The above river waters remained unaltered for the common use of riparian states. On 19 May 1980, Argentina and Brazil entered into the Agreement for the Utilization of the Water of the Uruguay River and its Tributary the Pepirı´Guazu ´ . The principles established by the 1971 Act of Asuncio ´ n were reaffirmed, and the Agreement further stated that every use of the waters of

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said rivers in stretches that are not shared ‘shall be carried out by each country in accordance with its needs provided that they do not cause significant harm to the other country’ (Article 3.1). It went on to specify that in the event that the regulation of the river’s flow should cause significant harm to lower riparian states: They shall be prevented as far as possible, and its assessment and qualification shall not be determined unilaterally by the Party in whose jurisdiction they are presumed to have originated, nor by the Party alleging the occurrence of this potential significant harm. Any claim arising from this event shall be settled in as brief a period of time as possible, consistent with the nature of the harm and its analysis. (Article 3.2)

On 11 March 1991, an agreement was entered into by Brazil and Uruguay, in the city of Artigas, Uruguay, for the utilization of the natural resources and the development of the basin of the Cuareim/Quaraı´ River. The Cuareim/Quaraı´ River is a boundary watercourse between Brazil and Uruguay and a tributary to the Uruguay River, which is in turn one of the main tributaries of the La Plata River. The Uruguay River Basin spreads along the territories of both riparian states, Argentina and Uruguay. The Agreement aims at the economic development of the basin area (Article II.1.a), which is to be improved through the ‘rational and equitable utilization of water for domestic, urban, farming and industrial uses’ (Article II.1.b) as well as the regulation of the basin flow for flood control, the construction of irrigation systems, and dealing with the issue of water misuse in the region. A Joint Commission for the Development of the Rio Cuareim Basin was set up under the Treaty (Article IV) in order to draw up projects that will be submitted to each member state and to monitor their implementation (Article V). Although these goals are replicated from the Mirim Lagoon Agreements between the same parties, the introduction of the international water law principle of rational and equitable utilization, the umbrella rule driving development projects to be unilaterally or jointly carried out by both countries, represents a substantial improvement. The Bermejo River, shared by Bolivia and Argentina, is a tributary of the Paraguay River, one of the sub-basins of the La Plata River Basin. On 9 June 1995, by the Oran Agreement, both riparian countries agreed to set up a Bi-national Commission for the Development of the Basin of the Upper Bermejo River and its Tributary, the Grande de Tarija River. The Commission carries out national and bi-national projects according to the plan drawn through a GEF/OAS/FONPLATA project, although progress has been slow in recent years (www.cobinabe.org.ar). For the Pilcomayo River, a tributary of the Paraguay River sub-basin of the La Plata Basin shared by Argentina, Bolivia and Paraguay, two subsequent agreements are in force. In chronological order, the first bilateral

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agreement dealt with the Lower Pilcomayo River, and was concluded on 5 August 1994 by Argentina and Paraguay. The main purpose of this understanding was to set up a Bi-national Administrative Commission, which would be in charge of the projects foreseen by the parties. A year later, on 6 June 1995, Argentina, Bolivia and Paraguay entered into an agreement relating to the Upper Pilcomayo River Basin, dealing with the upper basin’s challenges, especially in Bolivian territory, and creating a Tri-national Commission for that purpose. The abovementioned treaties represent an incomplete but illustrative list of the water agreements setting forth the utilization of South American international rivers, mainly in the La Plata Basin region. A number of these treaties do not address legal principles, but focus on the establishment of river commissions, their integration, objectives and functions, based on the premise that the legal principles ruling the utilization of international watercourses have been already established. A common feature of the abovementioned agreements is the assertion of territorial sovereignty of riparian states within their boundaries, even if sovereignty shall be exercised according to the applicable rules of international law, a regular clause of those conventions (Guarani Aquifer Agreement, Article 2). Sovereignty is not shared in international watercourses, the exception being the 1971 Asuncio ´ n Declaration of the La Plata Basin Countries for contiguous rivers. Sovereignty is limited, to the extent that the consensual constraints of the rule of law curtail states’ discretionary utilization of internationally-shared resources (Barberis, El Territorio del Estado, 2003: 182–4). The most relevant instruments assert as the general rule the right to equitable and reasonable use within a State’s territory (1997 UN Water Convention, Article 5; Helsinki Rules Article IV), and cooperation towards that end (1992 UNECE Water Convention Articles 9, 10 and 11). Property rights or dominium, however, may be shared when this has been expressly agreed, e.g. the common use of the waters of the Rı´o de la Plata River (Articles 3, 6, 9, 10 and 14 pf RPT, among others; del Castillo-Laborde, The Rı´o de la Plata, 2008, pp. 69–75) or the condominium over the Yacyreta´ Dam facilities, auxiliary works and navigation locks (Article V, Yacyreta´ Treaty). Condominium or common use could be reversed by a subsequent agreement without impinging upon sovereignty while sovereignty is a permanent condition. In the same line, the ‘community of interest’ confirmed by the ICJ in the Pulp Mills case is a rule of conduct setting conditions for the utilization of international watercourses. Indeed, the international legal principles for the utilization of international watercourses, i.e. equitable and reasonable utilization and the duty not to cause significant harm to other riparians (Caflisch, Re`gles ge´ne´rales, 1989, pp. 133–62) had been already recognized by states in the regional instruments referred to supra (Barberis, Los recursos naturales compartidos, 1979, pp. 28–40), which will be taken up next.

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THE DEVELOPMENT OF INTERNATIONAL WATER LAW IN MULTILATERAL SOUTH AMERICAN AGREEMENTS The 1966 Declaration of Asuncio´n On 22 June 1966, the governments of Brazil and Paraguay agreed by the Declaration of Asuncio ´ n to commence a hydropower plant project in condominium on the Parana´ River, in the Sete Quedas area. The understanding was geared towards the uses of the Parana´ River, stating the governments’ intention to attend the La Plata Basin meeting convened by the Argentinean government with a view to reviewing and resolving any and all legal matters relating to the Rı´o de La Plata River Basin as well as analysing any feasible uses of these rivers, whether energy, irrigation or other (Paragraph V).6 In order to carry out the implementation of these goals, on 12 February 1967 Brazil and Paraguay established a Joint Commission, which operated until a new agency superseded it. In the Declaration no legal principles relating to water were included, except for the priorities for water uses, among them the hydropower potential of the Parana´ River in the stretch shared by Brazil and Paraguay. On 26 April 1973, when the project had already been drawn up, Brazil and Paraguay agreed by the Treaty of Itaipu ´ the legal and financial framework for the construction and operation of the Itaipu ´ Power Plant and set up the Itaipu ´ Binational Entity, to be in charge of its construction and subsequent management (UNTS 923, pp. 92–110, 1981). The 1969 La Plata Basin Treaty In 1967 the first meeting of the La Plata River Basin countries took place in Buenos Aires, Argentina, to discuss the interest in coordinating projects and works. On 23 April 1969, the five South American States riparian of the La Plata River Basin – Argentina, Bolivia, Brazil, Paraguay and Uruguay – signed the La Plata Basin Treaty in Brasilia, Brazil, which came into force on 14 August 1970 (875 UNTS, pp. 11–13). The aim of the Treaty was to promote ‘the harmonious development and physical integration of the La Plata Basin and its areas of direct and measurable influence’ (Article 1). In accordance with this broad objective, the Treaty established an institutional framework with the purpose of fostering the economic growth of the state’s party, especially through infrastructure works and services: dams, bridges, waterways, roads, communications (Article 1.d). With regard to the management of the vast water resources of the Basin, the Treaty’s goal was to achieve the ‘rational utilization of water resources, especially by the regulation of watercourses and their multiple and equitable exploitation’ (Article 1.b). The principle of equitable utilization was the only rule for water management mentioned in the agreement. From a legal perspective, it is worth mentioning that the La Plata Basin Treaty establishes the rule of

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equitable utilization, encompassing rational and multiple uses, as the guiding principle for international water resources management. The La Plata Basin Treaty and its organs are still in place; its executive organ, the Intergovernmental Coordinating Committee, is conducting, through an international project, the assessment of the water resources of the Basin with a view to achieving a better knowledge of its hydrological behaviour and, if possible, the adoption of joint policies for water management in the future. While the La Plata Basin institutional system has kept a formal schedule of meetings – with the exception of the Conference of Foreign Affairs Ministers, which has not met for the past 20 years – and has established a number of bilateral and multilateral commissions, few of those instruments have elaborated on water management principles within the Basin. The 1971 Act of Asuncio´n on the Use of International Rivers Nonetheless, along with the established political organs, technical groups were set up within the framework of the La Plata Basin system. Among them, the Group of Experts on Water Resources discussed the principles for water uses and reached a valuable agreement in that regard. In fact, the Second Meeting of Experts in Brasilia on 18–22 May 1970 drafted a document, later approved by the foreign affairs ministers, which became the Act of Asuncio ´ n on the Use of International Rivers (Resolution No. 25/IV of the Fourth Meeting of Foreign Affairs Ministers of the La Plata Basin Countries, 3 June 1971). In its relevant paragraph, the Resolution states that The Foreign Ministers consider that it is of real value to record the fundamental points on which agreement has already been reached, on the basis of which the studies on this subject are to proceed: 1. In contiguous international rivers, being sovereignty shared, there must be a prior bilateral agreement between the riparian States before any use is made of the waters. 2. In successive international rivers, being sovereignty not shared, each State may use the waters in accordance with its needs provided that it causes no appreciable harm to any other State of the Basin.

The principles of ‘consent’ and ‘no harm’ had been previously asserted by the 1933 Declaration of Montevideo (Articles 2 and 4) and were present in the 1965 Draft Convention on the Industrial and Agricultural Use of International Rivers and Lakes; the difference being the precise legal nature of the Act of Asuncio ´ n, a Foreign Ministers’ Decision within the La Plata Basin institutional framework. These ‘consent’ and ‘no harm’ principles provided the guidelines to construe the comprehensive principle of equitable utilization, and drew up a legal framework for the La Plata Basin water resources.

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The 1979 Agreement on Parana´ River projects In order to settle the dispute over the hydroelectric projects on the Parana´ River, on 19 October 1979, Argentina, Brazil and Paraguay entered into a specific agreement. The agreement foresaw eventual changes of the natural conditions of the watercourse likely to cause harmful effects on the flow of the Parana´ River below the future dams ‘as a result of modifications resulting from the referred projects’, and established that in such a case ‘their gravity and classification shall not be determined unilaterally by the States in whose jurisdiction they presumably originate, nor by the States which allege the occurrence of the referred significant harmful effects’ (Article 5.g., UNTS 2216, pp. 212–16). The 1978 Amazon Cooperation Treaty The Amazon River system’s riparian countries – Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela – entered into a comprehensive agreement, the Amazon Cooperation Treaty, on 3 July 1978. This was later amended by the Amendment Protocol adopted on 14 December 1998. The protocol launched the Amazon Cooperation Treaty Organization, with a permanent secretariat based in Brasilia, Brazil, has been in operation since 2002 (Protocol, Article II). Regarding the basin watercourses, the Treaty highlighted the importance of the Amazonian Rivers and the riparian states committed themselves to making efforts aimed at achieving the rational utilization of the basin’s water resources, (Article V) stressing at the same time that the exclusive use and utilization of natural resources in the territory of the states’ parties ‘is a right inherent in the sovereignty of each state and that the exercise of this right shall not be subject to any restrictions other than those arising from International Law’ (Article IV). The parties also agreed to grant one another mutual freedom of commercial navigation, with the exception of cabotage navigation (Article 3). The Amendment Protocol did not modify the general rules stated by the Treaty, which asserted the sovereign rights of states to the utilization of their own natural resources, although limited by the applicable law, i.e. international law. THE URUGUAY RIVER ADMINISTRATIVE COMMISSION, ITS FUNCTIONS AND THE 2010 PULP MILLS JUDGMENT The 1975 Uruguay River Statute On 26 February 1975, Argentina and Uruguay adopted another bilateral river instrument: the Statute of the Uruguay River. This Statute was subjected to interpretation by the ICJ in its award on the Pulp Mills case (see #2.4 supra.), which analysed the functions of the Administrative

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Commission of the River Uruguay (CARU) set up by this agreement. The Statute asserts the duty to avoid significant harm to the other riparian, or the watercourse, in the utilization of the Uruguay River, stating that ‘If one Party plans to construct new channels, substantially modify or alter existing ones or carry out any other works which are liable to affect navigation, the regime of the river or the quality of its waters,’ it shall notify CARU, which shall evaluate if the projected plan might cause significant harm to the other riparian states (Article 7). In a process similar to that foreseen by the Rı´o de la Plata Treaty, the Statute described the process in Articles 8 to 13. As co-riparians, Argentina and Uruguay may explore and extract the resources from the bed and subsoil and, if mineral deposits overlapping the boundary are found, they must share their exploitation proportionally (Article 32). Turning to the duties the Statute vests in them, however, both states have the concomitant duty of avoiding any significant harm to the other riparian with that activity (Article 30). Additionally, riparian countries are under the general obligation of verifying every six months if the developments they have undertaken or authorized are likely to cause significant harm (Article 28). Furthermore, the Statute establishes that Without prejudice to the functions assigned to the Commission in this respect, the Parties undertake: (a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies; (b) not to reduce in their respective legal systems: (1) the technical requirements in force for preventing water pollution, (2) the severity of the penalties established for violations (Article 41). In the event of a breach of these duties, the Statute declares the liability of a riparian ‘for damage inflicted as a result of pollution caused by its own activities’ (Article 42), an objective responsibility which, for that reason, the riparian state is not exempt from by the allegation of due diligence. The ICJ departed from this interpretation and construed the fulfilment of the duties of Article 41 as a ‘due diligence’ obligation to protect the environment of the Uruguay River, hence limiting the responsibility for pollution damages (see judgment, paras. 195–7). The judgment, taking into account CARU’s regulatory functions, asserted that ‘CARU plays a central role in the 1975 Statute and cannot be reduced to merely an optional mechanism available to the parties which each may use or not, as it pleases’ (Paragraph 91 (p. 44)). Then, the decision recalls that ‘CARU operates at all levels of utilization of the river, whether concerning the prevention of transboundary harm that may result from

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planned activities; the use of water, on which it receives reports from the parties and verifies whether the developments taken together are liable to cause significant damage (Articles 27 and 28); the avoidance of any change in the ecological balance (Article 36); scientific studies and research carried out by one party within the jurisdiction of the other (Article 44); the exercise of the right of law enforcement (Article 46); or the right of navigation (Article 48)’ (Paragraph 91 (p. 44)). In addition, the Court delved into ‘the scope of the obligation [of the Parties] to prevent pollution’ and into the definition of ‘harmful effects’, a meaningful issue addressed in the by-laws of the Statute, the CARU Digest, an instrument with a number of chapters, each one addressing a particular water use. The Digest clarifies that ‘pollution’ is ‘any alteration of the water quality that prevents or hinders any legitimate use of the water, that causes deleterious effects or harm to living resources, risks to human health, or a threat to water activities including fishing or reduction of recreational activities’ (CARU Statute, E3, Title I, Ch. 1, Section 2, Article 1.c) and the Court declared that ‘the scope of the obligation to prevent pollution’ should be determined in the light of this definition (Paragraph 198 (p. 70)). The Court then turned to identify the rules by which ‘the existence of ‘‘harmful effects’’ is to be determined’ and concluded that they should be found in the specific rules of the CARU Digest and in the domestic laws of the parties (Paragraph 200 (p. 71)). Next, the Court found that in order to comply with the obligation to protect and preserve the aquatic environment and to prevent transboundary harm, under Article 41.a of the Statute, it is now ‘a requirement under general international law to undertake an environmental impact assessment’ (Paragraph 204 (p. 73)), a satisfactory obiter dictum finding for environmentalists. Moreover, the Court went on to state that the waiver of liability admitted in international responsibility as due diligence, ‘and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the re ´gime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works’ (Paragraph 204, (p. 73)). This statement does not imply that, on the contrary, carrying on an environmental impact assessment with whatever results is a waiver of responsibility for pollution and environmental damages. The judgment considered that, regarding the Pulp Mills case on the Uruguay River, there was ‘no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence’ and consequently did not breach its obligations under Article 41 of the Statute (Paragraph 265 (p. 95)). Having said this, the Court reinforced the duty of cooperation that both riparians had agreed upon when adopting the 1975 Statute, and stated that Both Parties have the obligation to enable CARU, as the joint machinery created by the 1975 Statute, to exercise on a continuous basis the powers conferred on

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it by the 1975 Statute, including its function of monitoring the quality of the waters of the river and of assessing the impact of the operation of the Orion (Botnia) mill on the aquatic environment. (Paragraph 266 (p. 91))

The Court rejected Argentina’s submission that Uruguay had breached its substantive obligations as well as Uruguay’s submission seeking to confirm its right to continue operating the Botnia plant (Paragraph 280), but reinforced the ‘duty of the Parties to co-operate with each other’ and brought from the Competence of the Oder Commission case the concept of the ‘community of interest and rights in the management of the River Uruguay and in the protection of its environment’ (Paragraph 281). The essential concept of ‘community of interests’ confirms the limitation of the sovereign competences of states in the specific field of international water resources. UNDERGROUND WATER RESOURCES: SOUTH AMERICAN AQUIFERS The previous instruments addressed mainly, although not exclusively, surface water resources and the applicable principles of international water law. The special characteristics of aquifers, or underground water bodies, were not their main object. Basins include both surface and underground waters, but aquifers are not necessarily linked with those water bodies, or at least not in the same way. The South American subcontinent contains at least 26 transboundary aquifer systems, and projects for their evaluation have been underway in the past decades, in tune with the worldwide concern for freshwater reserves. Among these are the Amazonian and the Guarani aquifers, both remarkable freshwater deposits (Preliminary Inventory of Transboundary Aquifer Systems in the Americas, UNESCO/OAS ISARM–Americas Programme (Internationally Shared Aquifer Resource Management–ISARM Americas), Book 1, Washington DC, 2006). The Guarani Aquifer System (GAS) is located in the territories of Argentina, Brazil, Paraguay and Uruguay, which in 2003 started a joint study of the GAS morphology and structure in cooperation with international organizations (Environmental Protection and Sustainable Development of the Guarani Aquifer System Project, GEF/THE WORLD BANK/OAS). The project was concluded in 2009, providing a more accurate, though not exhaustive, knowledge of the GAS features and extent (www.oas.org/dsd/Events/). The legal and institutional aspects of the project fostered the adoption of a declaration on principles and the drafting of an aquifer agreement establishing a mechanism for permanent cooperation, which with some changes became the Guarani Agreement.

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The 2010 Guarani Aquifer Agreement (Argentina, Brazil, Paraguay and Uruguay) On 2 August 2010, the GAS states concluded the Guarani Aquifer Agreement addressing the legal principles that were to encompass the use, management and protection of the resource (Portuguese and Spanish texts at www.itamaraty.gov.br/sala–de–imprensa/notas–a–imprensa/acordo– sobre–o–aquifero–guarani). The aquifer states recognized the duty to ‘use such resources on the basis of reasonable and sustainable uses criteria, respecting the obligation of not causing significant harm to the other Parties or the environment’ (Article 3). The four parties also declared that in the utilization of the resource they ‘shall act in agreement with the principles and norms of applicable international law’ (Article 5). The GAS Agreement restated the rule of equitable utilization, which was to be applied and construed in relation to other aquifer countries and to the uses they were carrying out, also underlining the commitment of the contracting parties to ‘the conservation and environmental protection of the Guarani Aquifer System’ (Article 4). The signatories of the Agreement affirmed, too, their ‘sovereign territorial control and rights’ over the GAS (Article 2). Although claiming sovereignty that is unchallenged could be redundant, it is not harmful. The sovereignty over the resource restated by the GAS states is asserted not as a legal hindrance for cooperation between them but as a safeguard against non-Guarani states. In fact, the proposals by some authors to declare fossil aquifers ‘A Common Heritage of Mankind’ (MartinNagel 2011) led the GAS states to assert their sovereignty over the aquifer and its waters, no matter their depths, as well as GAS states’ capacity to adopt any regulation regarding the aquifer management, underlying that ‘The Parties exercise in their respective territories the sovereign right to promote the management, monitoring, and sustainable utilization of the Guarani Aquifer System water resources’ (Article 3). However, it would be a contradiction to construe those sovereign rights as opposed to cooperation between the agreement’s signatories, cooperation upon the aquifer being the goal of the GAS Treaty. The GAS riparian countries claimed at the same time their exclusive sovereign rights and the unity of the resource. Concomitantly, recognizing the bond that a transboundary resource creates, the riparian countries commit themselves to cooperate in different ways within the Guarani boundaries, e.g. they ‘shall establish cooperation programs with the purpose of extending the technical and scientific knowledge on the Guarani Aquifer System, promoting the exchange of information and management practices, and developing joint projects’ (Article 12) and ‘shall cooperate in the identification of critical areas, especially boundary areas that require specific treatment measurement’ (Article 14). Moreover, the GAS countries established a commission with the purpose of coordinating ‘the cooperation among such Parties for complying with the principles and objectives of this Agreement’

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(Article 15). This is also the purpose and the coherent interpretation of a similar clause in the 2008 Draft Articles, stating that ‘Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory’ and also affirming that such sovereignty shall be exercised ‘in accordance with international law’ and the Draft Articles (Article 3, Annex to A/RES/63/124). As of this date, four joint pilot programmes have been carried on throughout the period of implementation of the project. The agreement is in the process of ratification and it has been approved by Uruguay and more recently by Argentina (Statute No. 26780, 31 October 2012). CONCLUSION Returning to the premises outlined at the beginning of this chapter about the scope of sovereignty, it is necessary to invoke the foundations of our society of independent and equal states, the international community and the existing world order, to base the constraints of its exercise regarding international, transboundary or shared water resources. The international community is a legal community, and international law its common rule (Larson & Jenks: 461). The rule of law, or the pre-eminence of law, through the general rules of equitable utilization, cooperation and no harm, regulates states’ exercise of their rights. Yet, according to their exclusive domestic jurisdiction, states should manage their water resources only to the extent that utilization and works do not cause harm to other states. This limitation does not imply diminishing sovereignty but building peaceful relations with other countries as equal members of the world society. Likewise, the fact that states grant cooperation or even management functions to international bodies set up exclusively to that end simply means that the cooperation scheme was established through consent. Moreover, states may withdraw from these agreements. There would be a shift of sovereignty if a state were not capable of denouncing or withdrawing from a treaty or an international organization; or if it were required to abide by their decisions, notwithstanding its not being a member.7 The rule of equitable utilization of international water resources is at present a customary rule of international law, rooted in state practice with the sole purpose of limiting the exclusive and possible abusive utilization of international water resources. Equitable utilization, like the international water law rules of cooperation, no harm, notification and prior consultation, is the balance of rights and duties distilled from sovereignty. The practice of South American countries shows that the rule of equitable utilization has been incorporated in declarations, drafts and agreements over the past century, and that it has actually been invoked to solve

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controversies between them by direct negotiations, as was the case with the 1979 Parana´ River agreement between Argentina, Brazil and Paraguay or by judicial solutions, as was the case in the controversy between Argentina and Uruguay about the Pulp Mills on the banks of the Uruguay River, decided by the ICJ in its 2010 award. In fact, the intrinsic uncertainty embedded in the principles of equitable utilization and no harm requires a case-by-case assessment, and above all, good faith both in their interpretation and in their implementation – the legal translation of good faith being the will to resort to any available dispute settlement means, with a view to reaching an understanding that satisfies all parties involved. In order to achieve an equitable result, an equitable process is required. As a rule developed to impose limitations upon uses and users, it is supported by some and resisted by others, a circumstance not based on doctrinal positions but on geographical and economic reasons. A privileged position, whether geographical or economic, would support the exercise of exclusive rights, while a disadvantaged one would support the pursuit of equitable benefits from shared resources. It is possible that one country may hold both positions regarding different water bodies in its territory, though one usually prevails according to the importance of the resource. Equitable utilization is a substantive as well as an interpretative rule, its uncertainty being both its weakness and its allure. The number of international commissions, whether bilateral or multilateral, that have been established by South American countries for their international basins, watercourses and even aquifers, amounts to a practice of association on a permanent basis. The results should be assessed in each case and will yield uneven achievements, but the mechanisms are in place and, most importantly, promote communication. Even modest institutions bring about the practice of cooperation that supersedes feelings of distrust, and this is not a modest outcome. NOTES 1 The sovereign quality of states is recognized as a basic requirement for membership to the Organization of the United Nations, whose Charter states that ‘The Organization is based on the principle of the sovereign equality of all its Members’ (Article 2.1). In a subsequent formulation, the ‘Draft Declaration on Rights and Duties of States,’ annexed to General Assembly Resolution A/375 (IV) (6 December 1949) asserted that ‘Every State has the right to independence and hence to exercise freely, without [being subject to] dictation by any other State, all its legal powers, including the choice of its own form of government’ (Article 3). Equality and independence of states are, then, the axiomatic conditions for the recognition of legal personality by the international community. As rights, they protect their members from intervention by other states. As duties, they demand that states abstain from intervention in the domestic affairs of other states.

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2 Pan American Union, Seventh International Conference of American States, Plenary Sessions, Minutes and Antecedents, Montevideo, 1933, p. 114. 3 International American Conferences: Conferencias Internacionales Americanas 1889–1936, 1928 – Sexta Conferencia Internacional Americana, Enero Febrero 1928, La Habana, Uso Industrial y Agrı´cola de los Rı´os Internacionales, Acta Final, p. 13, at http://biblio2.colmex.mx/coinam/coi nam_1889_1936/base2.htm. 4 Flying rivers are invisible atmospheric ‘water courses’ carrying humidity and steam from the Amazon Basin to other Brazilian regions (www. riosvoadores.com.br). 5 Organization of American States: Draft Convention on the Industrial and Agricultural Use of International Rivers and Lakes, Rio de Janeiro, 1 September 1965 (text in: OEA/Ser. 1/VI.1, CIJ-83, Pan-American Union, Washington, D.C., 1966, pp. 7–10). 6 Article V of the Declaration of Asuncio ´ n reads as follows: ‘In order to study the common problems in the area, with a view to promoting the full exploitation/ utilization of the natural resources in the region and its economic development, geared towards the prosperity and well being of the population; as well as reconsidering and resolving all legal matters relating to navigation, buoying, dredging, piloting of the rivers comprised in the Plata hydrographic system, the exploration of their power generating potential as well as channeling, dam construction or water harnessing, sought for irrigation, discharge regulation, banks protection or river traffic facilitation.’ 7 Still, there are no schemes of this kind, except for that of Article 2(6) of the United Nations Charter, which makes United Nations decisions adopted in pursuit of the maintenance of international peace and security applicable to states which are not members.

REFERENCES Act of Asuncio ´n on the Use of International Rivers, 3 June 1971 (Resolution No. 25/IV of the Fourth Meeting of Foreign Affairs Ministers of the La Plata Basin Countries), Parties: Argentina, Bolivia, Brazil, Paraguay, Uruguay, Sources of International Water Law, FAO Legislative Study N˚ 65, Rome, 1998, pp. 51–2. Arcari, Maurizio, Il Regime Giuridico delle Utilizzazioni dei Corsi d’Acqua Internazionali. Principi Generali e Norme Sostanziali, CEDAM, Padova, 1998. Barberis, Julio, El Territorio del Estado y la soberanı´a territorial (Buenos Aires: Editorial Abaco, 2003). ———, Los recursos naturales compartidos entre Estados y el Derecho Internacional, (Madrid: Tecnos, 1979). Boisson de Chazournes, Laurence, ‘Other non-derogable obligations’, in Crawford, J., Pellet, A., and Olleson, E. (eds), The Law of International Responsibility (Oxford: Oxford University Press, 2010), pp. 1205–14. Bourne, Charles, ‘The Primacy of the Principle of Equitable Utilization in the 1997 Watercourses Convention’, Canadian Yearbook of International Law 35 (1997). Brown Weiss, Edith, ‘The Evolution of International Water Law’, Recueil de Cours de l’Acade´mie du Droit International 331 (2007), pp. 163–404.

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´gua Doce. Fontes, Brzezinski, Maria Lu ´ cia Navarro Lins, Direito International da A Regimes Jurı´dicos e Efetividade (Curitiba: Jurua´ Editora, 2012). Buirette, Patricia, ‘Gene`se d’un droit fluvial international ge´ne´ral (utilisations `a des fins autres que la navigation)’, Revue ge´ne´rale de droit international public (1991), pp. 5–70. Caflisch, Lucius, ‘Re`gles ge´ne´rales du droit des cours d’eau internationaux’, Recueil de Cours de l’Acade´mie du Droit International 1989/VII (1992), pp. 9–226. ———, ‘Re`gles ge´ne´rales du droit des cours d’eau internationaux’, Recueil de Cours de l’Acade´mie du Droit International, 219 (1989), pp. 9–226. Clapham, Andrew (ed.), Brierly’s Law of Nations (Oxford: Oxford University Press, 2012). Crawford, James, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012). Sohnle, Jochen, ‘Le droit international des ressources en eau douce – solidarite´ contre souverainete´’, PhD thesis, University of Strasbourg III, 1999. Calvo, Charles, Dictionnaire de Droit International Public et Prive´, Vol. 2 (Paris: Pedone-Lauriel, 1885). Del Castillo-Laborde, Lilian, The Rı´o de la Plata and Its Maritime Front Legal Regime (Lieden; Boston, MA: Martinus Nijhoff Publishers, 2008). Freeman, Alwyn V., ‘The First Meeting of the Inter-American Council of Jurists’, American Journal of International Law 44/2 (1950), pp. 374–82. Fisher, Douglas, The Law and Governance of Water Resources. The Challenge of Sustainability (Cheltenham: Edward Elgar Publishing, 2009). Kelsen, Hans, Principles of International Law, 2nd ed., revised and edited by Tucker, R.W. (Holt: Rinehart and Winston, Inc., 1967). ———, ‘The´orie du droit international public’, Recueil de Cours de l’Acade´mie du Droit International 84 (1953), pp. 5–200. ———, ‘The Draft Declaration on Rights and Duties of States’, American Journal of International Law 44/1 (1950), pp. 259–76. Kokott, Juliane, ‘States, Sovereign Equality’, Max Planck Encyclopedia of Public International Law, available at: www.mpepil.com. Larson, A., Wilfred Jenks, C., et al., Sovereignty within the Law (Dobbs Ferry, NY: Oceana Publications, 1965). Martin-Nagle, Rene´e, ‘Fossil Aquifers: A Common Heritage of Mankind’, Journal of Energy and Environmental Law (2011), pp. 39–60. McCaffrey, S.C., The Law of International Watercourses. Non-navigational Uses (Oxford: Oxford University Press, 2001). McIntyre, Owen, Environmental Protection of International Watercourses under International Law (Farnham: Ashgate, 2007). Tomuschat, C., ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law’, Recueil de Cours de l’Acade´mie du Droit International 281 (2001), pp. 13–438. Wilson, Eric, Savage Republic. De Indis of Hugo Grotius, Republicanism and Dutch Hegemony within the Early Modern World-System (c. 1600–1619) (Leiden: Martinus Nijhoff, 2008).

17

State Sovereignty and Shared Water Resources under the Islamic Legal Tradition

Yadgar Ahmmad INTRODUCTION This chapter will mainly focus on two fundamental issues: What does state sovereignty mean in the Islamic legal tradition? How do shared water resources and the principles of state sovereignty in the Islamic legal tradition work together? At the very outset, however, it is thought useful to briefly recall what the term ‘sovereignty’ refers to in modern time so as to draw a comparison between the concepts of a state’s sovereignty in modern legal terminology and the traditional Islamic legal system. In modern times, the term ‘sovereignty’ is generally understood as the exclusive right to exercise supreme political authority (Coplin 1966), for example legislative, judicial, and executive authority over a geographical area, group of people, or oneself (Brus 2002). In reality, sovereignty has been criticised for carrying uncertain and inaccurate connotations from legal perspective standpoints. One reason could be that this definition brings contrary measures to the theory of social nature of the international system (Larson 1965). In addition, it is argued that the concept of sovereignty is not absolute, and no state exists in an isolated autarchy, surviving entirely on its own and by itself. The exercise of sovereignty therefore becomes limited by international law and by the differential in the power of states (Karnad 2008). As a result, sovereignty and international law have no choice but to integrate with one another given that states consent to become subject of international law (Nijman 2002) and now are creators and enforcers of this law (Brus 2002). It is further argued that in the prevailing international system of sovereign states only the sovereignty of weak states is most in peril. For this reason, states have always treated sovereignty as an asset to be bargained with; surrendering portions of it in return for substantial benefits or compromising it only under duress (Karnad 2008). Nevertheless, there are still mechanisms that can safeguard states’ sovereignty, such as bilateral and multilateral treaties irrespective of their military or economic strengths or weaknesses. In general, treaties can play several significant roles, such as providing the most concrete evidence of the existence of rights and

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obligations between states (Rieu-Clarke 2005), and can also provide evidence of customary international law (Gaebler 1997). In addition, a treaty is binding on the parties upon signing, as stated in Article 32 of the Vienna Convention on the Law of Treaties 1969. Before a state is prepared to ratify a treaty thereby binding itself to that treaty (Hiller 1998), it will ensure that nothing is done which would defeat the object and purpose of the treaty (Anderson 1919). This means that states do actually consent on relinquishment of sovereignty (Karnad 2008), particularly by virtue of voluntarily accepting the obligations provided in the treaty, although in certain circumstances some political duress may be exercised. The said acceptance is an implicit recognition of certain limitations to sovereignty. In other words, the protection of a state’s own interests cannot ignore other states’ rights. Upon signing a treaty, however, states not only accept obligations but also acquire rights. As a result, a state’s sovereignty settles in equilibrium so that a state’s rights and obligations are both balanced. Hence, the definition of a state’s sovereignty mentioned earlier changes from an exclusive to a flexible authority, which is described as ‘soft sovereignty’ (Lukashuk 1989). This kind of flexibility, in theory, makes the three principles of independence, legal equality and peaceful coexistence work in best practice, which means that there is no socalled sovereignty if there is no state to create it. Sovereignty alone, in contrast, has been recognised as an egoistic character in the world of political sciences. It is the individuality of power and right to take decisions of last resort. It accepts no rival, and any opposition is considered as a diminishing of not only the state’s power but of its very being. Thus, in order to protect sovereignty, a sovereign state’s first job is is to guarantee stability before defence, the economy or national independence. That is the permanence of its rule (Safouan 2007). CONCEPTS OF SOVEREIGNTY UNDER ISLAMIC LAW The concepts of sovereignty under Islamic law can unequivocally be understood upon examining the concept of a state. First of all, if the term ‘sovereignty’ is translated into Arabic, the closest meaning that can be envisaged is Siyadah, meaning ‘domination’, which literally translates as, ‘mastership’, whereas the core and realistic meaning of sovereignty connotes the concept of political decision, and right to take decisions as a last resort, as mentioned earlier. For Safouan, this Arabic translation means nothing but primitive and dual relationships between master and slave, and therefore it has been misunderstood or misinterpreted in the Arabic language for centuries, because the meaning of Siyadah does not exactly symbolize what has been understood by ‘sovereignty’ (Safouan 2007). Apart from that, in some contexts Siyadah incorporates with broader meaning, which will be discussed further later on.

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As far as the concept of state is concerned under Islamic law, consent has been achieved among Muslim political scientists and jurists that a state has four basic elements: territory, population, organization and sovereignty. The first three elements are similar to the contemporary state’s elements and no further elucidations are necessary here. The main fundamental difference comes with regard to the fourth element, which makes the true meaning of an Islamic state different from all other modern states. Under the Islamic law, sovereignty in its extreme version exclusively belongs to God and, thus, a state possesses no sovereignty. Even the organs of the state possess no supreme power but have to act within the limits set by God. Furthermore, the emphasis on defined ‘territoriality’ loses some significance when compared to the Western or communist concepts of state (Safouan 2007). Another important factor to mention is that the Islamic state, arguably, does not recognise the notion of ‘soft sovereignty’, because it is God’s exclusive right that remains untouched forever. Through international relations, the Islamic state should try to improve bilateral and multilateral treaties seeking to bring good for the community as well as peace and security. Although this commitment sounds like accepting ‘soft sovereignty’, in essence there are differences in application. As mentioned earlier, Islam holds that sovereignty belongs to God only, and equally He left some room in which mankind can make laws from time to time as convenient in order to govern current affairs. In Islamic jurisprudence it is well established that mankind is permitted to pass laws and regulations to make progress, as commanded by God. This permission can be described as a flexible platform, which we call governance, and subject to change at any time whenever circumstances require. Within this platform, there are amendable and fixed laws. The amendable laws are those positive laws purposed for daily administration; they accept amendments or alterations. In contrast, the fixed laws are those that are meant for universal application, and cannot accept any amendment from the moment of their revelations in the Qur’an, such as inheritance, prohibitions of usury, human rights protection, etc. Hence, the amendable laws are left for the people to freely enjoy, employing them to the extent that they do not contradict the prescribed fixed laws. The people who make the laws cannot be above the law; they are only the executors of law and as such they stand on par with ordinary citizens (Hassan 1981). Human rights fall under this category of fixed laws according to the Qur’anic injunctions, as will be elaborated on subsequently. One question that arises here is what the sources of law in a traditional Islamic state are, and how the hierarchal structure of these sources is arranged. These sources are regarded as the core pillars of governing in an Islamic state, and are therefore imperative to discuss. There are four main agreed sources of law in the Islamic state. The very first and the supreme one – which all Islamic principles, ordinances and laws are derived from – is the al-Qur’an. According to Muslim belief, the Qur’an is a

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divinely-revealed book and as such all positive laws given therein have superiority over manmade laws. The quintessence of the Qur’anic principles is that they, being of divine origin, are equally applicable to the whole of mankind, irrespective of a person’s status, position, colour, race, gender, language or nationality. If a thing is declared legal, it is legal for all in any shape or form (Hassan 1981). The Qur’an has, according to this belief, provided both amenable and fixed laws for various aspects of life. Nowadays, many Muslim states dedicate at least one article in their constitutions stating that Islam is the original source of law. The second is Sunnah or Hadith, from which the Islamic laws are drawn, and stands as the second highest source of law after the Qur’an in the Islamic state. Sunnah indicates the doings and Hadith indicates the sayings of the Prophet Mohammed. As the Qur’an generally deals with the broad principles or essentials of Islam, the details are generally considered to be supplied by the Sunnah. Since Islam is supposed to cover the whole sphere of human activities, hundreds of points have to be explained by the Prophet by example in word or in deed. After the Qur’an and Prophetic Sunnah, Ijma is the third source of Islamic laws. Ijma means an agreement or consensus of Muslim jurists of a particular age on a point of law. It is not, however, a major source of law but of a great value, and is always open to revision (Hassan 1981). The fourth source of Islamic law, which is quite controversial for some scholars, is Qiyas (analogical reasoning). It simply means to seek similarity between new situations and early practices, especially those of the Prophet (AbuSulayman 1987). The function of Qiyas is to discover the cause or illah, i.e. the reason of the revealed law so as to extend it to similar cases. Like Ijma, Qiyas is subject to modification according to the need and requirements of the changing times. It is, however, this part of the Islamic law that endows it with wide possibilities of growth and advancement and that makes it, according to believers, fully capable of fulfilling all the needs of an expanding human society in every age. The reasons for this point being considered quite controversial by the Muslim jurists stems from the argument by some that people in certain periods began to depend on it too extensively and that it ultimately overshadowed the Qur’an and the Sunnah (Maududi 1983). The validity of Qiyas in itself was not questioned, but it was how it was applied in relation to the Qur’an and Sunnah and the hierarchy of the sources of law arrangements. Apart from the above four important sources, Ijtihad alone (exercise of judgement) comes as the life vessel that, according to believers, keeps Islamic law alive and modern. Although the Qur’an does recognise revelation as a source of knowledge higher than reason, it admits that the truth of principles established by revelation may be judged by reasoning. Thus, the Qur’an repeatedly appeals to reason and denounces those who do not use their reasoning faculty. In the lifetime of the Prophet, his companions were well aware of the principles of Ijtihad, and even the Prophet had approved of freely resorting to it whenever necessary. It

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should be underpinned that Ijtihad is always open to revision based on different times, places and even persons. Nevertheless, since Islamic laws are to be derived from the Qur’an, which is regarded among the faithful as a universal guide for all time, it is inevitable that Ijtihad should continue to be exercised (Hassan 1981). The Islamic state was founded by the Prophet Mohammed in the seventh century and continued with full vigour during the first four Caliphs. According to the dominant Islamic version of history, since then – except for the Prophet – God has not ascribed the knowledge of final meaning or of truth to any particular individual, whatever might be his or her status, or to any institution, whatever might be its authority. Thus, being the last Prophet, he should have no successor per se (in Arabic language it is termed ‘Khalifa’). That is why the first four men who ruled after him were called ‘shrewd successors’, which was admissible because they were among the Prophet’s closest companions and had heard the revelation from his own mouth, had embraced Islam from the early days of the revelation, and had experienced the growth of Islam throughout the Prophet’s life. This is the main argument for the idea that mankind’s relations to God are relations in which mankind is answerable to Him and Him alone. When Othman Ibn Affan, the third Khalifa, was in power, he first endeavoured to establish the Qur’an as a written text in order to protect the supreme law from the risks of being amended, touched or changed in contents. The important point, however, is that it was under the first four Khalifas rule that Islam expanded greatly, and this expansion made it necessary to create a larger state, which was finally established by Muawiyah (Safouan 2007). According to Safouan, there is nothing in the Qur’an concerning principles of government. When the Prophet passed away, therefore, the shrewd successors were obliged to take the absolutist states of Persia and Byzantium as their model (Safouan 2007) through exercising their ijtihad if they could not find any relevant references in the above-mentioned four sources. This perspective inclined jurists that using others’ governance models and modifying them to meet their own requirements is in itself ijtihad. Next, they needed to solve new issues that could not be simply solved by customs of the traditional Arab lifestyle in the desert; they could not be used for non-desert environments like Persia and parts of Byzantium, which fell under the Muslim’s control and became part of the Islamic state’s territory. This is the example of a situation where the applications of ‘amendable laws’ were clearly seen, and which continued for centuries. When the Ottoman Empire conquered the Muslim lands, including Persia and part of Byzantium, the rules of Ijtihad were reemphasized in relation to the applications of those ‘amendable laws’. The best example can be seen when Egypt became an Ottoman province in 1517. The Ottomans accepted the existing social divisions no matter what their religious, professional, doctrinal or ethical background; and they even

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appointed a head or someone responsible for each division of their choice (Safouan 2007). Again, this practice continued until the outbreak of World War I, which led to the defeat of the Ottoman Empire and the Sykes–Picot Agreement in 1916, which effectively divided the Arab provinces of the Ottoman Empire outside the Arabian Peninsula into areas of future British and French control or influence. As a result, many Islamic traditional practices and legal doctrines were gradually overridden in the newlyformed Arab and other Muslim states and communities. The border of the Islamic state starts from the last point of judicial jurisdiction, even if the local inhabitants are not Muslims. Thus, a state that is managed and administered in accordance with the laws of Islam should promote and maintain effective equality among its citizens. This constitutional principle was deduced from the Sunnah, from Mithaq alMadinah (the Madina Charter) which has 47 articles and is the earliest written constitution in the world and was promulgated by the Prophet in the city-state of Medina. Part 2 of the Charter established that non-Muslims are included in what is understood as the Muslim nation, which implies that if a nationhood of Muslims is founded on a common spiritual aspiration, their unity with non-Muslim minorities in the state is based on the defence of a common territory. Hence, the Muslims and non-Muslims are described as a ‘single community’ (Iqbal 2012). Accordingly, the components of this single large community should share every benefit together, including water resources, and it was the responsibility of the ruler to ensure that justice and equality is established. This is based on the Hadith which states that ‘the ruler is the guardian of his subjects and is responsible for them and a man is the guardian of his family and is responsible for them’ (Abderrahman 2000: 466). It is noteworthy that the basis of the traditional Islamic state was mainly ideological and not merely political, territorial or even ethnical. The primary purpose of government was to defend and protect the faith and not the state per se. At the heart of the Islamic political doctrine, the Islamic community is a whole single large community, called Ummah, and is tied by bonds of faith alone. This implies that in its internal aspect, the Islamic state is an assemblage of individuals bound to one another by ties of religion, i.e. all the members believe in God and His Prophet Mohammed. Thus, it was the implicit and explicit acceptance of the Islamic law and all its implications that made Muslims part of the Islamic community. In this context, all are on equal footing and there were no distinctions of rank while there were distinctions of function. For example, God alone is the everlasting head of the Ummah and His rules are direct and immediate (Lambton 1981). while the head of state is the governor of God’s rules and the representative of the groups of people from the Ummah under his control. From an external aspect, in contrast, the traditional Islamic state was sharply divided from all other communities and in its relations with other

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groups, since it was regarded as a single, indivisible organization. Political boundaries should therefore be unknown to Islam because of the primacy of the faith bond, except the area inhabited by a group of people having governmental institutions and who have declared themselves separate from the Islamic state and its judicial jurisdiction, traditionally called the abode of unbelievers (Lambton 1981). DEVELOPMENT OF ISLAMIC WATER LAW In Islam water is considered a gift from God, so no individual literally owns it. Humans are the stewards of water and other common resources that belong to the community (Faruqi et al. 2001). This is clearly stated in the Qur’an which begins by describing the event when the earth was first resuscitated by water. It says ‘And Allah sends down water from the skies, and gives therewith life to the earth after its death...’ (Qur’an 16:65). Then it goes further by informing us that all living species are created and dependent on that water as a life-sustaining and purifying resource. The Qur’an mentions ‘And We have made from water every living thing’ (Qur’an 21:30). Furthermore, the Qur’an does not stop at this point; it tells us that mankind does not have power over water resources, and therefore should not claim that they are controlling it for themselves alone or only for one nation among others. Thus, the Qur’an mentions that God commanded His prophet Saleh to warn the Thamud nation,1 in 715 BC, stating: ‘And inform them that the water is shared between them, each [day of] drink attended’ (Qur’an 54:28). Moreover, in another chapter, the Qur’an mentions that ‘And we send down water from the sky (rain) in (due) measure, and We gave it lodging in the earth, and verily, We are able to take it away’ (Qur’an 23:18); whereas in another verse the Qur’an says ‘See you the water which you drink? Do you bring it down (in rain) from the cloud or do We? Were it Our Will, We could make it saltish. Then why do you not give thanks?’ (Qur’an 56:68). In addition, the Qur’an mentions ‘and it is He Who sends the winds as heralds of glad tidings, going before His Mercy (rain); And We send down pure water from the sky (Qur’an 25:48). Finally, the Qur’an re-confirms the importance of water, but this time emphasizes the rights of other creatures besides mankind. Hence, the Qur’an says that God made the water to sustain His creation. Subsequently, man and beast will benefit from the vegetation. The Qur’an says therein ‘It is He Who sends down water from the sky; and with it We produce vegetation of all kinds’ (Qur’an 6:99). The above Qur’anic principles had crystallized in the life of Prophet Mohammed as well as having been extended to the subsequent traditional Arab lifestyle. The Prophet established that every living species on the earth must have a right to water. The supply and preservation of fresh water should

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always be regarded as of fundamental importance. This can be deduced from the Hadith narrated by Ibn Majah (Hadith 2472): ‘All Muslims are partners in three things: water [flowing water], pasture and fire and their price is unlawful prohibited’ (Ibn Majah 2007). In accordance with this Hadith, the rulers must make provisions for people to have access to water. There are three main principles laid down by the Prophet on which the Islamic water law is based until today. First, in the realization of these Qur’anic verses, the Prophet demonstrated to his companions that water is a gift from God for the life of mankind and every other living thing on the planet, and without it the entire ecosystem will come to end (Wohlwend 2000: 7–8). This principle institutes that water is directly related to life, and therefore humans and other living things have unequivocal and untouchable right to water. It can further be understood that this principle forms a vertical obligation from the state down to individuals. Second, as mentioned earlier, the Prophet stated that Muslims are partners in three things, water, pasture and fire, and selling them is prohibited. From the text of this Hadith, it is understood that there is also a horizontal obligation among the people themselves and that all mankind have the same right to water (Zuhaili 2002). Third, the Prophet said, in an obligatory expression, do not waste water even if performing ablution on the bank of a fast-flowing (big) river, as narrated by Ibn Majah.2 This Hadith upholds a reversed vertical responsibility from the individuals towards their governments, what we now call ‘public participation’. Thus, in Islam, public participation in water conservation falls within religious obligations. There were no permanent rivers in the barren terrain where Islam took first hold, or even a small basin that could connect two or more tribes. There was no river that resembled what we can describe now as transboundary watercourses or, in its very traditional sense, ‘cross-tribal watercourses’. Rainfall was the main, scarce surface water during the Prophet’s life and for centuries after that, notwithstanding that wells were abundant and springs were common in the mountainous areas. In the absence of rivers in such a harsh environment, one can imagine that people shared the available surface and groundwater and that there were very few conflicts over common water. This was partly because the wells were mostly limited to one tribe, or left for charity. Thus, Muslim jurists did not develop Islamic water principles including how transboundary shared water resources should be governed in the early years of the Islamic state after the death of the Prophet and subsequent four shrewd successors, simply because they had not come across issues of this nature. It was rather necessary, however, for the jurists to elaborate on the use of water for domestic, personal purification and religious purposes, and how water conservation can be best practiced. For example, An-Nawawi (1233–77 AD), a Muslim popular jurist mentions that ‘if water is withheld then it will hinder the growth of pasture which is important for the fodder of animals. Excess water should also not be withheld from usage by animals’

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(Al-Nawawi 2000). Equally, extravagance in using water is forbidden, which applies to private use as well as public, and whether the water is scarce or abundant. As to encouraging water conservation, Al-Ghazzali (1058–111 AD) said that if one were to have a bath one should not keep pouring water continuously, but should restrict oneself to the amount needed (Al-Ghazzali 2008). This was a good example taken from the Prophet’s life, and practiced for centuries after his death. When the Islamic state began to expand, the newly-conquered lands were dissimilar to the desert environment, but gradually became part of the Islamic state territory. Rivers like the Tigris and Euphrates and Nile, were soon located in the territory of the Islamic state. It was this time when the jurists were faced with new issues arising from governing water resources on behalf of the local people and those who have access to them. They initially examined the universal principles on human rights to water in the Qur’an, with those Prophetic practices and Hadiths on one hand, and put the local traditions and usages into considerations on the other hand. Then, they exercised their Ijtihad to juggle all the three mentioned sources, and finally came up with sets of principles related to water resources that are valid today and are overwhelmingly referred to by the modern Muslim jurists. Those principles are now referred to as Islamic water law, governance and administration. The principles categorized water resources into three categories and addressed the rights of ownerships of each category and how the sovereignty, i.e. ‘Islamic State’s sovereignty’, can be exercised within these categories. CATEGORIZATION OF WATER RESOURCES IN ISLAM Muslim jurists initially came up with the principle that water rights originated from the Arabic term of Al-Ertifaq rights, which literally means to benefit from something. Legally, Al-Ertifaq refers to a kind of right that falls under the category of privileges attached to incomplete ownership. Comparatively, English philosophers used the term quasipossessed. This term has a similar meaning to the Islamic view of incomplete ownership (Getzeler 2004). Al-Ertifaq flows from the two types of ownership recognized in Islamic jurisprudence: complete and incomplete. While, the former refers to owning and holding exclusive possession of the subject matter, the latter refers to any rights of benefit attached to a subject matter short of exclusive ownership. Since the Islamic state comprises of one large community, one of the duties of the government to the Islamic community entailed making sure that every individual had access to water. Modern jurists added that if problems arise in water services – for example pollution, lack of tools and transportation – the state can be liable, and are under a legal obligation to repair water services from the public funds (Zuhaili 2002). The categories of water resources and the nature of owning them are as follows.

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Water as public property This category refers to rivers, lakes, glaciers, seas, or rain and snow falls. Traditionally, such water was neither bought nor sold, as it was considered a common property of the Islamic community, but if the flows were to be carried and transported to houses, then the water could be priced to cover the costs and maintenance of the industry itself (Zuhaili 2002). Accordingly, the state does not have exclusive ownership over them but only such sovereign rights that have enabled them pass on the instructions required for proper administration. Modern jurists have argued that governments should not increase the water price to the extent of inhibiting the public’s access to common property (Zuhaili 2002). Water as private property Water in private containers, treatment plants, distribution systems and reservoirs is considered private property. Such water resources, on which work, energy, private infrastructure and knowledge have been invested to obtain, entitle the owners of the containers to exclusive ownership and the rights to use, trade or sell it. Thus, most Islamic jurists have concluded that individuals have a clear right to use, sell and recover value-added costs on most categories of water (Zuhaili 2002). As a result, the state may not exercise its exclusive sovereign rights to withdraw or interfere with such right, or claim exclusive ownership on it unless individual ownership of the resources stands against public interest. The main reason behind this principle is not the water itself, but the meaning of property to which water is attached. Water as restricted private property The third category of water resources mainly refers to lakes, rivers, streams, etc., located in private lands. The owner of the land has priority rights over the owners of the neighbouring land, but also has certain obligations to them. Within these general limits, the owner can trade and sell water (Zuhaili 2002). A number of conditions govern private use, however, and the state has sovereign powers to interfere with the enjoyment of such a right. For example, in times of stress or war, the state has the power to change the title of ownership from private to common ownership. Many jurists have in the past emphasized their strong disapproval of practices where water is controlled for individual benefit thereby causing hardship for others. TRANSBOUNDARY WATER RESOURCES IN THE ISLAMIC LEGAL TRADITION In the contemporary state, the rules and general principles of customary international law on the use and management of transboundary water

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resources play an important role not only in situations where agreements exist, but even when there is no specific agreement governing the relationship between states sharing such resources (Caponera 2003). The riparian states of any basin may be confronted with problems that are beyond the reach of existing agreements, not to mention that most treaties on transboundary watercourses are inclined to deal only with water management issues. States could take a rigid stance with regard to the control and use of disputed shared watercourses based on an extreme version of sovereignty over the portion of transboundary watercourse lying within national territories. As a result, upstream states have conventionally claimed absolute freedom to utilize transboundary waters regardless of the impact such activities have on downstream states; this approach is premised on the principle of ‘absolute territorial sovereignty’. Conversely, some downstream states have claimed the right to receive the unaffected natural flow of waters coming from upstream states’ territory, following the principle ‘absolute territorial integrity’ (McCaffrey 2001). Perhaps the earliest, most direct, and most famous articulation of absolute territorial sovereignty is the US Attorney General Judson Harmon’s assertion that the United States did not owe to Mexico a duty to desist in its diversions of water from the Rio Grande so that Mexico could also enjoy the use of the river’s waters (Thorson 2009: 487). For the most part, the above theories have been categorized as underdeveloped and of unclear status. International water law has progressed dramatically only during the twentieth century, and hence has rendered these extreme theories obsolete. A middle course has found its place in contemporary international watercourses law and practice, predicated on the principle of the ‘limited territorial sovereignty’ of riparian states (Rahaman 2009: 160). The evolution of the ‘limited territorial sovereignty’ theory will have a strong impact on riparian states and may proffer solutions to the problems of the joint use and management of waters by riparian states. It is noteworthy that this theory has also been adopted in the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin in Articles 4–7. Currently, the theory of ‘community of interests’ is the most progressive of the water rights theories. National boundaries are ignored and the entire basin is regarded as one economic and geographic unit. By virtue of scientific developments over recent decades, the hydrological regime of rivers and the physical factors that govern them have become known with great precision, hence influencing the substance of legal norms. Transboundary rivers have been considered part of a natural unity, which is the hydrographical basin. In fact, the theory of ‘community of interests’ stands very close to the Islamic principles on sharing water resources, or even goes one step beyond. As discussed above, Islam established the human right to water as a primary objective to be met by the state; it introduced fixed principles as mechanisms

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for guaranteeing that this objective remains primary as long as the state has control over its territory. The most important feature of these principles – if applied in a modern state – strips the state’s absolute sovereignty and imposes duties to provide water access to people as humans, and not as a particular nation, as commanded by God. The human rights approach applies even in circumstances where a river crosses the Islamic state’s border into a non-Islamic state’s territory: in principle, the Islamic community recognizes the rights of other non-Muslim communities, and therefore the same principle applies to communities beyond its borders. In this context, whether or not a bilateral treaty exists between the two states, the Islamic state is bound by the principles set by the Hadith, which it constitutes the fourth major base of the Islamic legal maxims, which stated that ‘There should be neither harming nor reciprocating harm’ (Assabil 2012). Several core and subsidiary rules have stemmed from the Hadith to cover aspects of life – from individuals to state policy makings and implementing strategies. One key rule derived from the Hadith, for instance, refers to the prohibition of a state’s monopolism over subject matters that are basic for the life of people in general, such as food and water (Assabil 2012). Instead, it calls for a fair and equitable distribution of such basic elements among the population, and obliges the state to allow a fair access by the people living beyond its borders in much the same way as it does to its own population. In some form, the underlying message of this rule stands parallel to some elements of the stipulation under Article 5, paragraphs 1 and 2 of the United Nations Watercourse Convention, 1997, in which paragraph 1 reads: ‘Watercourse States shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.’ In paragraph 2, the Convention reads: ‘Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the obligation to cooperate in the protection and development thereof, as provided in the present Convention.’ Another key rule derived from the Hadith is that an Islamic state should refrain from carrying out activities in favour of its nations on any transboundary watercourse that brings harm to other nations. Without much elaboration, the content of this rule notably stands parallel to the normative stipulation of Article 7, paragraph 1 of the United Nations Watercourse Convention, 1997, which provides that watercourse states shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse states.

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Throughout 13 centuries of successive Islamic states that culminated with the collapse of the Ottoman Empire in 1922, no significant conflict over the utilization of transboundary water recourses was reported. The only probable exception relates to an incident that occurred during the war between the Ottoman Empire and European countries. So, for centuries, one can note that the principles on the rights of use of water resources have survived both in theory and on practical levels. In the contemporary context, however, challenges remain with regard to the workings of these principles in a completely changed set of circumstances. In some measures, this has discouraged modern researchers who are aiming to properly investigate how the Islamic states implemented Islamic rules and principles on shared water resources. One impact of such development has been a growing gap between the Islamic legal tradition of the past and the current Islamic legal thoughts on issues related to statehood, sovereignty and shared water resources. Very little jurisprudence is available today on Islamic water law in general and shared water resources in particular, and the literature there is has also been repetitive. Today, the underlying values of Islamic principles on water resources, which have formed the basis of rights to water in many Muslim societies, still have so much to contribute to cooperative water management systems. Similarly, Islamic principles lay the foundation for a wise use of natural resources by the individual. While, in our lives, water fulfils a vital function, no authority has been interested to advocate that the principle of ‘absolute community of interest’ was first established under Islamic law over 14 centuries ago. In semi-arid regions like the Middle East, where the majority of watercourses are shared, cooperation in water resources management has become critical for many reasons. As an overstatement, it has been predicted that the next war in the Middle East will be fought over water, not politics. Water therefore plays a crucial role in regional politics, for example in the case of the Tigris–Euphrates River Basin, which supplies water to Turkey, Syria and Iraq. If the states were to consider implementing Islamic principles on the collective use and sharing of water resources, since they are all Muslims by faith, then fairer solutions could be devised notwithstanding the political boundaries and different systems in of the states. This may also help present a new, but different, class of constructive model for other transboundary river cases. CONCLUSION The Islamic legal tradition on shared water resources has a well-established basis. It makes it clear that only God is the real owner of everything in the universe, and therefore exclusive sovereignty goes to Him alone if the

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contemporary definition of sovereignty, i.e. the exclusive right to exercise supreme political authority, is applied. Thus, humans become trustees answerable for governance, and accountable for the use of all resources, including water. However, in circumstances where new issues have arisen to which neither no answers are found either in the Qur’an or the Hadith, then it will be left to the Ijtihad to provide guidance on solutions, taking all social, cultural, political, environmental, economic and technological advancements into consideration. This is the evolving feature of sovereignty according to the Islamic legal tradition, which entrusts a right to take decisions in the last resort if the Qur’an and Hadith are silent on an issue. The traditional Islamic state has been based on ideology, ignoring central focuses on all political, territorial or even ethnic backgrounds. It is only the faith that unites the Ummah by voluntarily accepting that God alone is head of the Ummah forever, His rules are direct and immediate, and the head of the state must implement God’s rules for the Ummah. Although, according to the faithful, Islam was revealed 14 centuries ago in such a barren terrain of the Arabia where rainfall remained the only direct source of freshwater supplies, three important principles on water resources have nonetheless been established that continue to find application even today. The first principle is ‘vertical obligations from the top down’, i.e. state’s obligation to provide public access to water. The second principle is a ‘horizontal obligation by the public’ where the public recognizes that water must be shared fairly. The third principle is ‘vertical obligation from the bottom to top’ in which the public assumes a religious obligation to use water resources proportionately and to avoid misuses. In the contemporary context, this might be equated with some features of the principle of ‘public participation’. Apart from that, both the Qur’an and Hadith have explicitly provided from the beginning that water is not only provided for humans, but it is for all living beings on the planet, and must be preserved and shared. The onus of protecting the ecosystem has been mandated by the Qur’an and Hadith to the authority of the state. Admittedly, Muslim jurists did not focus on developing Islamic water principles, including how transboundary shared water resources should be governed, in the early years of the Islamic state. The prior focus had been on developing the use of water for domestic, personal purification and religious purposes by encouraging the best practice of water conservation. When the Islamic state began expansion, however, the newly conquered lands featured different physical landscapes and climatic settings, which called for the categorization of water resources vis-a `-vis the state’s right of exercising sovereignty. First, Islamic jurists have concluded that rivers, lakes, glaciers, seas or waters from rain or snowfalls can be neither bought nor sold, falling under a joint property regime of the Islamic community.

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The state is obliged to govern such resources properly within its territorial boundaries; it does not have exclusive ownership over them, but has sovereign rights to pass instructions in order to achieve the best for the public benefit. Second, water in private containers, treatment plants, distribution systems, and reservoirs is considered private property; the owner of the container has exclusive ownership and right to use or trade it; the state may not exercise its exclusive sovereign powers to withdraw or interfere with such a right, or claim exclusive ownership on it unless private ownership of such resources stands against public interest. Third, water resources from lakes, rivers, streams, etc, located in private lands are considered restricted private property. The owner of the land has priority rights over the neighbouring landowners, subject to certain conditions. The owner can trade and sell water, but the state has sovereign rights to interfere with such a right, or to change the ownership title from private to public. This occurs in times of stress or war. Finally, the topic of transboundary water resources in the Islamic legal tradition still occupies unique values for modern transboundary water issues. It stands in line with the rules of customary international law of freshwater resources and general principles. As discussed, the Islamic legal system eliminates from the very beginning the theories of ‘absolute territorial sovereignty’ and ‘absolute territorial integrity’. However, it recognizes theory of ‘community of interests’ very well. It even proposes the theory of an ‘absolute community of interests’ regardless of any political border. The main aim is to make it clear that good water governance is a serious task assigned to policymakers in the Islamic state (of its traditional form), who will be accountable in front of the head of the Ummah: God. These noble rules and principles studied, notated and concluded by the Muslim jurists throughout the past 14 centuries are still there, while they were not indisputably relied on throughout the past century’s transboundary water issues, even among Muslim states, for too many reasons to list here. It is, however, hoped that one day at least the riparian Muslim states of the Tigris–Euphrates River and the Nile will recourse to them as a new model for solving this millennium’s transboudary water conflicts. NOTES
in ancient Arabia, tribe or group of tribes that seem to have been 1 Thamud, prominent from about the fourth century BC to the first half of the seventh
probably originated in southern Arabia, a century AD. Although the Thamud large group apparently moved northward at an early date, traditionally settling on the slopes of Mount Athlab. Recent archaeological work has revealed
numerous Thamudic rock writings and pictures not only on Mount Athlab but also throughout central Arabia (Encyclopedia Britannica 2013).

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2 When the Prophet saw Sa’d performing wudu he said: ‘What is this extravagance? You are wasting water.’ Sa’d replied: Can there be wastefulness while performing ablution? The Prophet replied: ‘Yes even if you perform it in a flowing river’ (Ibn Majah 2007) (Hadith, 425).

REFERENCES Agreement on the cooperation for the sustainable development of the Mekong River Basin, 5 April 1995 (entered into force 5 April 1995), reprinted in I.L.M 34 (1995), p. 864. Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997 (not yet in force), reprinted in I.L.M. 36 (1997), p. 700. Vienne Convention on the Law of Treaty, Convention on the Law of Treaties, 23 May 1969 (entered into force January 1980), reprinted in I.L.M. 8 (1969), p. 679. Abderrahman, W.A., ‘Water Demand Management and Islamic Water Management Principles: A Case Study’, Water Resources Development 16/4 (2000), pp. 465–73. Al-Ghazzali, The Revival of Islamic Sciences (Michigan, MI: OneWorld, The University of Michigan, 2008). Al-Nawawi, A.Z.M., The Complete Forty Hadith (Ta-Ha, 2008). Anderson, C.P., ‘The Ratification of Treaties with Reservations’, The American Journal of International Law 13/3 (1919), pp. 526–30. Anonymous, Ensyclopedia Britanica (n.d.). Available at: http://www.britannica. com/EBchecked/topic/589948/Thamud, accessed 12 December 2012. Assabil, A.A., 2012. Umqura University. [Online] Available at: www.http://uqu.edu. sa/page/ar/10738, accessed 10 December 2012. Brus, M., Bridging the Gap between State Soverigntyh and International Governance: The Authority of Law, 1st ed. (New York, NY: Oxford University Press, 2002). Carponera, D.A., National and International Water Law and Administration (The Hague: Kluwer Law International, 2003). Coplin, W.D., The Function of International Law: An Introduction to the Role of International Law in the Contemporary World. (Chicago, IL: Rand McNally and Company, 1966). Faruqi, N., Biswas, A. and Bino, J.B., Water Management in Islam (Tokyo; Ottawa: United Nations University Press, 2001). Gaebler, R.F., ‘Conducting Research in Customary International Law’, in Randall, R. (ed.), Contemporary Practice of Public International Law. (Schaffer: Oceana Publications, Inc., 1997). Getzeler, J.A., History of Water Right at Common Law (Oxford: Oxford University Press, 2004). Hassan, F., The Concept of State and Law in Islam (Washington, D.C.: University Press of America, 1981). Hiller, T., Sourcebook on Public International Law (London: Cavendish Publishing Ltd, 1981). Iqbal, J., Allam Aiqbal. [Online] (n.d.). Available at: http://www.allamaiqbal.com/ publications/journals/review/apr98/1.htm, accessed 9 December 2012.

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Karnad, B., Security and Sovereignty: Globalisation and Environmental Challenges (Berlin: Heidelberg, 2008). Lambton, A.K., State and the Government in Medieval Islam: abd Introduction to the Study of Islamic Political Theory, The Jurists (Oxford: Oxford University Press, 1981). Larson, A., Sovereignty within the Law (London: Stevens and Sons, 1965). Lukashuk, I.I., ‘The Principle Pacta Sunt Servanda and the Nature of Obligation Under International Law’, American Journal of International Law 83/3 (1989), pp. 514–30. Majah, I., Sunna Ibn Majah (Darussalam Publishers and Distributors, 2007). Maududi, S.A., Islamic Law and Constitution. 8th ed. (Lahore: Pakitan Islamic Publication, 1983). McCaffrey, S.C., The Law of International Watercourses: Non-Navigational Uses (Oxford: Oxford University Press, 2001). Nijman, J., Sovereignty and Personality: A Process of Inclusion State Sovereignty and International Governance (Oxford: Oxford University Press, 2002). Rahman, M.M., ‘Principles of Transboundary Water Resources Managment and Ganges Treaties: An Analysis’ Water Resources Development 25/1 (2009), p. 160. Rieu-Clarke, A., International Law and Sustainable Development: Lessons from the Law of International Watercourses (London: IWA Publishing, 2005). Safouan, M., Why are the Arabs not Free? The Policies of Writing (Malden, MA: Blackwell, 2007). Thorson, E.J., ‘Sharing Himalayan Glarical Meltwater: The Role of Territorial Sovereignty’, Duke Journal of Comparative and International Law 19 (2009), pp. 487–510. Wohlwend, B.J., Institutional Means to Implement Integrated Water Resources Management, Working Group on Legal Aspects of Management of Shared Water Resources (Sharm El-Sheikh, 2000). Zuhaili, W., Fiqh Al-Islami Waadillatuhu (Islamic Law and its Evidence), 4th ed. (Damascus, Syria: Darul Fikir, 2002).

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Colorado and the Western United States

Tom Cech INTRODUCTION The water history of Colorado and the western United States (the West) is a story of exploration, exploitation, economic development, and multiple changes in territorial, state, and federal sovereignty. Water has provided wealth to those who could control its diversion and use. The finicky dry nature of the West, however, has caused many to lose everything due to drought. Geography, climate, mineral wealth, and the lore of ‘Manifest Destiny’ (the nineteenth century belief widely held by Americans that the United States was destined to expand and settle west of the Mississippi River) played important roles in our current system of water law. Our story began long ago, however, in the tin mines of Wales, the valleys of the Tigris and Euphrates River of Mesopotamia, and later within Roman, French and Spanish water laws. Since other authors of this book will address the Code of Hammurabi (Mesopotamia), Roman Law and French contributions (Code of Napole ´on), this chapter will focus more on the contributions of Welsh tin miners, the Spanish Crown, and early settlers of the western US. I have had the privilege of working for over 30 years in water resources in Colorado, and it is with great pleasure that I share my thoughts regarding our history of water management. GEOGRAPHICAL CONTEXT OF WATER MANAGEMENT IN THE WESTERN UNITED STATES The western United States encompasses more than half the land area of the country, but only about 23 per cent of its total population. It is the most geographically diverse region of the US, incorporating the Pacific Coast, temperate rainforests of the Northwest, soaring Rocky Mountains, the Great Plains, and the desert South-west (for purposes of this chapter, the states of Arizona, California, Colorado, Nevada, New Mexico, and Utah). It is often portrayed as a land of vast panoramas, cowboys and cattle, deserts and pioneer homesteaders. Old Western movies provide figures such as

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John Wayne and Clint Eastwood riding across parched desert landscapes, searching for life-giving water. Other cinemas show Robert Redford as a Rocky Mountain fur trapper in the 1800s, living in an alpine world of pine and aspen trees, and trudging through massive winter snow drifts. By 1890, however, these historic scenes of the western frontier were gone. Alternatively, the modern-day West (see Figure 18.1) can be depicted by large urban centres such as Los Angeles, Phoenix and Denver. It also includes extensive irrigated agriculture regions, vast water delivery networks, and massive water storage reservoirs. Rivers exist in a variety of forms, with some quite large – like the Colorado River, which flows southward from the state of Colorado to Mexico. Other rivers are smaller and less known, like the South Platte River of north-eastern Colorado. Most western rivers, however, are workhorse rivers – they provide the primary water supplies for most uses in the West. As a generalization, the climate of the western United States can be described as semiarid; however, some locations receive large amounts of

Figure 18.1. Map of the western part of the United States. (Source: United States Digital Map Library, usgwarchives.net)

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Figure 18.2. domain.)

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Front Range of the Rocky Mountains near Denver, Colorado. (Public

rain and/or snow, while others are true desert and receive less than 5 inches (13 cm) of rain per year. In addition, climate varies significantly, and a normally wet area can be very dry for years, and vice versa. This contrast of climate and terrain is remarkable, and can be found within a few hundred miles (several hundred kilometres) of each other. The topography of the West also varies greatly. Some mountain peaks reach over 14,000 feet (4,267 m) in elevation, and serve as water towers for entire river basins. Other regions receive less than 8 inches (20 cm) of average annual precipitation. This wide discrepancy in annual precipitation is generally based upon location and elevation, and is why irrigation is vital to grow crops. According to the 2010 US Census, approximately 72 million people, or 23 per cent of the US population, lives in the 17 western states (US Department of Commerce, Economics and Statistics Administration 2012). During the first half of the twentieth century, dams and irrigation projects provided water for rapid agricultural growth throughout the West, and brought prosperity where agriculture had previously been at subsistence levels. Then, following World War II, the West’s cities experienced an economic and population boom. This population growth, particularly in Arizona, California, Colorado, Nevada and Utah, has strained available water and power resources. To meet growing demands, water has been diverted from agricultural uses to major population centres, such as Denver, Las Vegas, Los Angeles, Phoenix and San Diego. HISTORICAL CONTEXT OF WATER MANAGEMENT IN THE WESTERN UNITED STATES Spanish settlement The development of the first written water laws in the south-western United States generally occurred during the 1600s and 1700s, with Spanish settlement in modern-day Arizona, California and New Mexico (the New World). Spain was the sovereign nation that controlled all aspects of development in the region, and as Spanish settlers moved north from

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Mexico, they maintained their laws and traditions of water management from the Old World. In 1680, all Spanish laws were recompiled into the Recopilacio ´n de leyes de los Reynos de las Indias (Law of the Indies), which organized the laws (including water allocation law) of all Spanish possessions around the world. Irrigation was the primary use of water, especially in the New World. As such, the Spanish Royal Crown encouraged sharing of irrigation water because productive land generated more tax revenues for the Spanish Treasury. No Spanish settler could divert irrigation water in the New World without a grant from the Spanish Crown. The use of water for domestic purposes, however, was unlimited. Spanish water systems – at settlements in Mexico, and subsequent developments to the north in America – utilized the Arabic acequia (irrigation ditch) system to distribute water between users. By 1700, there were an estimated 60 acequias operating in present-day New Mexico, and 400 more were built by the 1800s. This system would later be copied by western European settlers in Colorado and other south-western states (Cech 2010). Acequias were an interesting addition to Spanish water administration. Historically, the king or queen was the sovereign and controlled all issues related to the law, land ownership and allocation of water in Spain. Since the New World was such a great distance from Madrid, however, irrigation decisions had to be granted to local settlers. This was the beginning of providing a measure of local control toward water resources. An ayuntamiento (town council) allocated water to towns along the same river, and between competing water uses. A mayordomo (ditch rider or irrigation system superintendent) was selected and hired by the local water users to maintain and supervise operation of the community acequia. Interestingly, some of these New World water allocation concepts were actually developed centuries earlier by local Native American irrigators in Mexico and present-day Arizona and New Mexico. These indigenous irrigation practices did not go unnoticed by Spanish rulers: We ordain that they [the Spanish settlers in the New World] keep the same order the Indians followed in distribution, practice, and apportionment of water among the Spaniards to whom the land may be allotted and assigned. About this, the natives themselves, who previously had it as their responsibility, shall mediate regarding what lands in their judgment shall be irrigated. They shall give each person the water he ought to have, successively from one to the next, under penalty that they take the water away from anyone who takes and employs it by his own authority till all those below him irrigate the land designated (Recopilacio ´n de Indias).

This is a key point of water development in the semi-arid region of the south-western US. The Spanish sovereign realized that conditions

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warranted a change in water resources management in the New World. First, too much distance separated new settlements from the king and queen in Spain, and timely decisions were critical to the success of these new settlements. Second, the arid climate of the New World required local oversight of water management issues. The sovereign Spanish rulers realized that climate and distance demanded different water management governing principles. During the early 1800s, Spanish settlement continued. Pueblos (communities) were established in Arizona, California and New Mexico to reaffirm Spain’s claim to lands of the region, and also to provide food and other supplies for presidios (military garrisons). Spain was the unquestioned sovereign in the desert south-west region of the future United States, but French explorers were encroaching from the north. France had previously claimed lands along the Mississippi River, all the way from New Orleans in the south to the future country of Canada to the north. This would all change at the beginning of the nineteenth century. American westward expansion In 1803, President Thomas Jefferson signed the Louisiana Purchase with France, and nearly doubled the size of the then-existing United States. The formerly French-controlled lands were generally located between the

Figure 18.3. John Charles Fremont, 1852. Portrait by William Smith Jewett. (Source: John C. Fremont. (n.d.). Public domain)

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Mississippi and Colorado Rivers in the midsection of the present US. Irrigation in these regions was minimal, and French regulation of water resources was basically non-existent. Then in 1821, Mexico won its independence from Spain. This was a profound change for the south-western region, and the exit of the Spanish military left a vacuum of sorts. Although Mexico was now the sovereign nation, its government was ill equipped to oversee water resources management on such a large scale. Irrigators continued to use Spanish practices of water allocation. To the north, early explorers, such as Zebulon Pike, Stephen H. Long and John C. Fremont (see Figure 18.3) – all leaders of US-sponsored government expeditions during the first half of the 1800s – brought back reports of poor soils and inadequate water supplies for major settlement. Some of the land acquired from the French government would become known as the Great American Desert, and many predicted that the western United States would never be settled. In 1817, Henry M. Brackenridge wrote in his book Views of Louisiana: The prevailing idea, with which we have so much flattered ourselves, of these western regions being like the rest of the United States, susceptible to cultivation, and affording endless outlets to settlements, is certainly erroneous. The [Indian] nations will continue to wander over those plains, and the wild animals, the elk, buffalo, will long be found there; for until our country becomes supercharged with population, there is scarcely any probability of settlers venturing far into these regions. A different mode of life, habits altogether new, would have to be developed (Brackenridge 1817).

Some early explorers did notice small irrigation projects, developed by Spanish missionaries and Native Americans in the south-west, and later used the concept to irrigate small plots of vegetables near US Army outposts in the 1830s. At the time, competition for water was almost nonexistent in the West, because there were so few people – or the irrigation projects were controlled by missionaries, the Mexican government, or small military outposts. This is a second key point in the development of water use and law in the south-western US. During the first half of the 1800s, water development was largely unregulated because settlements were generally small, water supplies were adequate, and the new sovereign nation that controlled the region (Mexico) had a fledgling government. In addition, the acquisition of the Louisiana Purchase from France opened the doors for settlement in future states such as Colorado, Wyoming and Montana. The US government was now the sovereign of this new northern region and encouraged settlement on these frontier lands. Water regulation was the furthest thing from the minds of government officials.

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Then, Brigham Young led a group of Mormon settlers to the great Salt Lake Valley of Utah on 24 July 1847. The area was very barren and dry, and immigrants immediately set out to construct irrigation ditches to raise food for themselves and their livestock. The ultimate goal was to make the entire valley self-sufficient. Young was the sovereign of this group of settlers, and his word was law. His goal was to make the region entirely self-sufficient to avoid reliance on others of different faiths. The Mormons had been persecuted in Illinois and other locations to the east, but it was hoped that this new land would provide a new beginning for his people. Brigham Young had a rule that ‘no man has the right to waste one drop of water that another man can turn into bread’. This set forth the principle of beneficial use for the entire group so that no one could divert excess water to his or her land. This early Mormon doctrine somewhat followed the viewpoint developed by Mohammed nearly 2,000 years earlier, who saw water as a religious charity. The Qur’an states: Excess water is not withheld in order to prevent herbage from growing. (Book 36, Number 36.25.29) Do not withhold the surplus water of a well from people. (Book 36, Number 36.25.30)

In 1848, Brigham Young similarly stated: There shall be no private ownership of the streams that come out of the canyons, nor the timber that grows in the hills. These belong to the people; all the people (Dunbar 1983).

Brigham Young’s concept of shared water use continued in Utah for almost 30 years before the Utah territorial legislature adopted the doctrine of prior appropriation (‘first in time, first in right’) principle of water ownership and use. Brigham Young provided a third important event in the development of sovereign oversight of water resources in the US, and the development of western water law. Young, as the sovereign of the Mormons, designed and developed their irrigation systems, practices and laws. This occurred even though the region was legally a part of the United States. Distance and climate dictated that local control was exercised for the development and use of water resources. This same situation occurred in Mexico centuries earlier when the Spanish rulers allowed local settlers to handle their water allocation issues. In 1847, in the case of Brigham Young, the US government probably had little concern over how water would be allocated in the far off desert lands of the future state of Utah.

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The California gold rush In 1848, one year after the Mormons settled in Utah, gold was discovered along the American River in California. James W. Marshall found traces of gold at Sutter’s sawmill, and news of the discovery quickly spread (see Figure 18.4). On 19 August 1848, the New York Herald was the first East Coast newspaper to announce the discovery. In December of that year, President James Polk announced the news to Congress, triggering the California Gold Rush of 1849 (Jones and Cech 2009). Approximately 300,000 prospectors travelled to the gold fields of California – some by horse and wagon, others walked and thousands took the long and arduous journey from the East Coast of the United States, around the frigid southern tip of South America, and north to the West Coast of California – a five- to eight-month ocean journey. These fortyniners came from the Eastern United States, Latin America, Europe, Australia and China. Gold seekers scoured every hill and ravine along the American River in California. If a continuous supply of running water was available, gold could be separated from the earth by depositing the pay dirt into sluice boxes. Then, the heavier gold would sink to the bottom of the sluice as lighter sentiments were carried off by the stream of water. Digging the hillsides was

Figure 18.4. California gold rush handbill, 1849. (Source: California Gold Rush Handbill, 1849, Wikimedia Commons, Public Domain, commons.m.wikimedia.org)

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backbreaking work, and so sluice boxes were constructed as close as possible to mining sites. Earthen ditches or wooden flumes transported water from a stream to the gold mining claims. The discovery of gold in California created an unprecedented international legal and political situation. Mexico won its independence from Spain in 1821, and therefore gained control over portions of the future south-western states of Arizona, California and New Mexico. In 1845, however, the US government annexed the Republic of Texas. This led to the Mexican–American War of 1846–8, which Mexico lost. A year later, in 1849, gold was discovered in the California Territory. The region was now governed by a military officer of the US Army, although the Mexican government technically retained title to all land in the region. In a matter of 30 years, the California Territory had changed its sovereign three times (from Spain, to Mexico, and then the US). Since no American property rights existed, private individuals could not legally settle or purchase land. This created major problems for miners wanting to acquire legally-recognized mining claims and water rights. Just as important, in 1849, was water competition in California. This was fierce because it was critical to a gold miner’s success. The idea of sharing water was not workable because of scarcity and variability of local streamflows. This behaviour – not sharing during times of shortage – is a common tendency of human nature. Sociologists refer to it as a ‘queuing instinct’ – a natural tendency for humans to respond to shortages by forming a line or list, often based upon a ‘first-come, first-served’ system. California miners simply followed this standard human practice (Jones and Cech 2009: 58–61). ‘First possession’ is a fundamental social order of rule-making around the world, and has been used for thousands of years. The term can also be called ‘finders keepers’ or ‘first come, first served’. First possession is a straightforward concept to establish ownership of a property right. It states that the person who initially gained control of property or other resource, before other potential claimants, should have a better right than those who came later. The rule of first possession is used today with abandoned property, intellectual property, land, radio frequencies, satellite orbits and water rights. Centuries ago it was often used to acquire the best land, location on a river or access to water. Another side note is that the idea of first possession has historically been considered ‘unjust’ by some political philosophers and ‘inefficient’ by many economists. In 1690, however, the British philosopher John Locke argued that each person should have a natural right to obtain ownership of natural resources by using their labour and working the resource. Locke argued that virgin land could be acquired in the process of clearing, tilling and cultivation – and the first person to do so should possess the property. In 1881, Oliver Wendell Holmes wrote in his classic The Common Law that ‘To gain possession, then, a man must stand in a

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certain physical relation to the object and to the rest of the world, and must have certain intent’. The California economy of the 1849 gold rush era consisted generally of mining, merchants and farming. Mining and farming required water for irrigation (most areas of California are semi-arid), but water demands exceeded water supplies in certain areas. The region was governed by a military officer (the Mexican–American War had just ended), who likely did not have the knowledge, manpower or support of the US federal government to get involved in water rights issues. California was thousands of miles (thousands of kilometres) from Washington DC, communication was by horseback (the transcontinental railway would not be completed until 1869), and water allocation methods needed to be developed quickly to prevent gun fights and carnage over the valuable resource. The miners (and later the irrigators) therefore developed the water allocation system of ‘first in time, first in right’. Each mining camp created mining districts and mining codes. This was not a new practice, since prospectors from around the world used similar allocation rules for gold, silver, tin and mercury exploration in places such as Peru, Chile, Bolivia, Colombia, Brazil, England and Mexico. Some were also quite familiar with water allocation methods used in the acequia systems of Spanish settlements, or in the tin mines of Wales. California gold miners established rules for obtaining and working goldmining claims. This gave certainty to prospectors regarding their land and water property rights. Prospectors were generally given the right to dig on a piece of land, generally 10–20 feet (3–6 m) wide and perhaps 50 feet (15 m) long. Mining regulations generally followed seven principles: 1. Mining claims were limited in size. 2. A miner had to ‘stake’ a claim with wooden or steel poles to show intent to mine (similar to the ‘bounding’ process, which dated back to the Roman Empire). 3. A miner obtained the exclusive right to work a claim. 4. A claim had to be filed with the appropriate local official, either at the mining camp or at the county courthouse, if one existed. 5. A miner had to work a claim diligently, or it would be forfeited to another miner. 6. Water for each claim was based on a first possession concept of ‘first come, first served’. 7. Claims could be bought and sold. Local mining and water use regulations were enforced by vigilante committees generally comprised of other miners in the area. The earliest water diverters obtained the right to use that water – to the exclusion of others – during times of shortage. On any given stream, water

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users knew their order, or ‘priority’, based upon when water diversions were developed (first come, first served). If there was not enough water in a stream to satisfy all users, the later (or ‘junior’) diverters had to stop diverting so that the earlier (or ‘senior’) diverters could obtain all the water they were entitled to use. Today, this is called a ‘priority list’ and the use of water is a ‘priority’. The Colorado gold rush The Colorado gold rush of 1859, just 10 years after gold was discovered in California, generated the need for similar water laws in the Colorado Territory, as no formal water law existed. Mining camps enacted similar rules, and these later became part of Colorado’s Constitution in 1876. Known as the Colorado Doctrine, these rules continue to be widely used in the western United States. The concept of applying mining law to water allocation in the western US is an interesting development. The economy of territorial days (California did not become a state until 1850, and Colorado obtained statehood in 1876) was largely gold and silver mining and agriculture. Both were vital to the economic development of these regions, and agriculture in particular presented new challenges. Since the climate of the south-western US is quite dry, with average annual precipitation ranging generally from 8–15 inches (20–38 cm) in cultivated areas, many streams experience low flows during hot summer months, and water availability is limited. Early on, miners and irrigators realized that ‘sharing’ water made no sense because seasonal fluctuations of streamflow made the riparian principle of reasonable use unworkable. Miners and irrigators needed a specific flow of water to make their sluice boxes and irrigation systems work properly. If streamflows were inadequate, as was often the case, it was unreasonable to share the limited flows. Sharing would have given each miner or irrigator a ‘reasonable’ amount of water, but not enough to operate the demands of all miners or irrigators on a stream. Common sense dictated that it was better for one miner, or one irrigator, to have adequate water, even if it meant that others would go dry. The riparian system, developed in lands with more abundant rainfall, simply was unworkable in the semi-arid regions of the American frontier (Jones and Cech 2009: 59). In 1882, the Colorado Supreme Court agreed in the case Coffin v. Left Hand Ditch: We conclude, then, that the common law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the

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absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the (Colorado) constitution, a prior right thereto, to the extent of such appropriation.1

Twenty years later, in 1902, the US federal government began a federal reclamation (water development) programme in the West, and provided funding for a number of massive water storage and irrigation systems. Elected representatives from western states were able to subordinate federal water allocation policy through legislative efforts in the US Congress. This provided the guarantee of state control over water allocation issues, and made states the sovereign over water resources. This control of water use and allocation by the states would be eroded in future years with the creation of interstate compacts (discussed later) and the adoption of new legislation regarding water quality and endangered species issues in the US Congress. REGIONAL CASE STUDY: THE STATE OF COLORADO Here is the land where life is written in water. (Thomas Hornsby Ferril, Colorado poet laureate)

The history of the western United States can be exemplified by the history of the state of Colorado. Many who think of Colorado often envision the majestic Rocky Mountains, brisk alpine streams, ski resorts, abundant wildlife and tourism. Much of the state is arid or semiarid, however, and irrigation is widespread. This general lack of water has generated the need for elaborate irrigation systems and strict and extensive water laws. These laws were created by the Colorado Legislature, not the United States federal government, since water laws are generally developed and administered by individual states. It is important to note that, under the United States’ federalist system, many legislative powers are subordinated to the 50 states in the Union. As such, sovereignty over a variety of issues, including surface and groundwater, is scattered among federal, state, regional and local government agencies. Background Colorado is located midway between Canada and Mexico, west of the Mississippi River, and east of California. Colorado is a very large state, the eighth largest of the 50 United States. It also has a great variation in topography and climate. Average elevation is 6,800 feet (2,073 m) above sea level, and includes 53 mountains with elevations of 14,000 feet (4,267 m) or more. Rivers such as the South Platte and the Arkansas, however, flow

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through lower elevations of only 3,000 feet (914 m) above sea level. This case study will focus on the South Platte River of central and north-eastern Colorado. Colorado’s climate is extremely variable. Lower elevations experience hot, dry summers, occasional severe thunderstorms, and cold winters. The Rocky Mountains, in contrast, located in the central part of the state, receive frequent afternoon summer thunderstorms, abundant snowfall most years, and serve as natural water towers for lower elevations. Prior to the 1850s, early residents of Colorado were generally nomadic Native Americans. These tribes and clans of Arapahoe, Cheyenne and Ute followed wild game, including buffalo herds, as part of their way of life. Rivers and natural lakes provided their source of water. A few groups developed small irrigation systems to grow grain and vegetables, but these were not widespread or sustained. All of this changed with the discovery of gold in 1859. South Platte River Basin Too thick to drink, too thin to plow. A bothersome, pestiferous nothing of a river. In fact, it’s a joke to even call the South Platte a ‘river’ at all. (Mark Twain)

The South Platte River (from the French word ‘plat’ meaning flat) begins high in the Rocky Mountains in the central part of Colorado, and flows about 450 miles (724 km) before joining the Platte River in the state to Nebraska. The South Platte River Basin covers approximately 22,000 miles squared (57,000 km2), and is home to over 3 million residents. The South Platte River is a winding, braided, sand-bottomed river for much of its length, but is used extensively by cities, industries and irrigators for critical water supplies. Average precipitation in the region is approximately 15 inches (38 cm) annually. River flows in Colorado can be highly variable during the summer months. State-wide, precipitation varies from over 200 inches (550 cm) of mountain snow annually at Crested Butte to less than 10 inches (25 cm) of average annual precipitation in the San Luis Valley of southern Colorado. Trans-mountain diversions help supplement summer flows. In addition, occasional thunderstorms and snowmelt from the mountains during late spring and early summer can provide significant flows during the summer months. Major crops of the South Platte River Basin include corn, alfalfa, sugar beets and pinto beans. Large cattle feedlot operations are also prevalent due to the availability of grains, silage and the dry climate. Vegetables such as sweet corn, cabbage, potatoes, cucumbers and carrots are also grown. Scores of irrigation systems obtain water from the South Platte River and its alluvial aquifer. The South Platte is a workhorse river.

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The Colorado gold rush Early water development in Colorado was minimal prior to the Colorado gold rush. As mentioned earlier, some early irrigation systems were developed by Native American tribes several hundred years ago. Even earlier than that, around 1100 AD, the Anasazi Indians of south-western Colorado developed an extensive settlement of cliff dwellings which captured rainwater for extensive irrigation systems. Centuries later, in the southern portion of Colorado, Spanish settlers developed acequias in the mid-1850s. Everything changed in 1859 when gold was discovered along Cherry Creek, a tributary of the South Platte River, in modern-day Denver. Nearly 100,000 gold seekers descended on the region, including miners, farmers, writers, merchants and other entrepreneurs. They changed the face of Colorado forever. Initially, prospectors focused on digging for gold along the South Platte River and its tributaries. However, enterprising prospectors soon discovered that wealth lay in the fertile lands at lower elevations if it was irrigated. David Wall, for example, irrigated two acres (0.8 hectares) of vegetables in 1860 and made a profit of US$2,000 (roughly US$55,000 or more in today’s dollars). Quickly, others followed Wall’s lead and constructed small irrigation ditches along the South Platte and its tributaries. Vegetables were sold for high profits to prospectors in the mountain mining camps. Some grew alfalfa (hay) for horses – for the mining camps and construction crews of the transcontinental railroad to the north in Wyoming. Irrigation spread, and soon the limited water supplies of the South Platte River were exhausted during the dry summer months. As one would expect, conflict arose between irrigators,

Figure 18.5. Engraving showing first prospectors at Gregory Gold Diggings, Colorado, 1859. (Source: Gregory gold diggings Colorado, May, 1859 Page 181. In Denver Public Library Digital Collections. Retrieved September 21, 2014 from, http://digital.denverlibrary. org/cdm/singleitem/collection/p15330coll22/id/9661/rec/1.)

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sometimes leading to bloodshed. The 1860 Colorado census listed 195 farmers, 22,086 miners and 175 saloon keepers in the state, most in fledgling Denver or mountain mining camps. Initially, underground springs were tapped if they were easily accessible, and some minor well digging and drilling was completed in the latter half of the 1800s. Overall, however, groundwater utilization prior to the 1900s was minimal across the state. Development of the Colorado water law system Colorado was part of the Kansas Territory in 1859, and the territorial capitol was in Kansas, nearly 600 miles (965 km) to the east. Many Coloradoans wanted the sovereign control to be more local, and led an effort to create a Colorado Territory, which occurred in 1861. This allowed residents to create new laws, a court system, and other aspects of a sovereign government in the new capital of Denver. By the early 1870s, it was apparent that formal water laws were needed in Colorado to allocate surface water during times of shortage. Most settlers of the region were familiar with the Riparian Doctrine of water allocation used in the more humid eastern regions of United States, or in Western European countries where many had grown up. These wetter regions utilized surface water allocation rules based on the concept of sharing a scarce resource. That system would not work in the dry climate of Colorado or the western United States, however, because irrigators knew that during times of water shortage there simply was not enough water in a stream to serve all irrigation demands. If everyone agreed to share and share alike, no one would receive enough water to sustain their fields and

Figure 18.6. The Greeley Number Three Irrigation Ditch, Greeley, Colorado, 1870. Notice the distinct lack of trees and the barren landscape. All of this changed with irrigation from the ditch. (Source: City of Greeley Museums, Greeley, Colorado.)

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all crops would be lost. It therefore made more sense to have a water allocation system where at least some water users could grow a crop during times of shortage. A new legal system therefore had to be developed, and the concept of first possession, or a priority-based system, was created (Pennington and Cech 2010). In 1870, the first large-scale community irrigation system in America was developed by settlers of the Union Colony – today Greeley, Colorado. These early settlers constructed an irrigation ditch – the Greeley Number Three Irrigation Ditch (Figure 18.6) – from the Cache la Poudre River to the new town. The first ditch rider, David Boyd, was a graduate of the University of Michigan. His job was to plug gopher holes and allocate water among the 200 parcels of irrigated land along the ditch. Boyd noted that the first year was ‘ash dry’ and caused many delivery problems (Boyd 1890). A few years later, in 1874, the situation came to a head when Boyd and the Union Colony settlers discovered that their newly-constructed irrigation canal was running very low on water. It was a dry July, but the flow of the Cache la Poudre River seemed unusually low. A delegation of Greeley irrigators therefore rode their horses upstream to investigate. To their horror, they saw new irrigation canals diverting river water to the fledgling agricultural town of Fort Collins. The rival irrigators exchanged heated words because the downstream ‘senior’ irrigators knew that the Union Colony settlement was doomed if the upstream ‘junior’ diverters continued to take water from the dwindling river. The feuding parties met, had a tense discussion, but did not come to a resolution. Eventually, the group decided to meet at the small Eaton schoolhouse, midway between the two towns, to discuss the situation. The schoolhouse meeting was lively, to say the least. Many of those present were Civil War veterans, since the conflict had ended just a few years earlier. The war veterans knew how to use a gun and were willing to use it to protect their livelihoods. Both groups had left the relative comfort and safety of the eastern United States to settle on the arid foothills and plains of Colorado. Some had risked everything to stake their future on newlyirrigated land. It was a hot, dry summer, and there just was not enough water in the Cache la Poudre River to serve everyone’s needs. Both groups – the downstream Union Colony and the new agricultural community in upstream Fort Collins – came armed with guns. The neutral Eaton Schoolhouse was too small to hold everyone, and added to the intense atmosphere of the meeting. Two Civil War veterans – General Robert Cameron, one of the founders of the Union Colony and also of Fort Collins, and B.H. Eaton, a future governor of Colorado – were present and tried to keep everyone calm. Cameron and Eaton proposed to appoint some disinterested person for the remainder of the year to divide water according to the greatest need. That idea was poorly received by the Union Colony delegates and they ‘hurled defiance in hot and unseemly

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language’. The debate escalated, with the Union Colony irrigators threatening to dig new ditches upstream of Fort Collins to choke off their water supply. The Fort Collins contingent objected to their uncooperative reaction. Then the meeting got ugly. Angry words hung in the air until one man, unable to bear the tension any longer, stood up and yelled, ‘Every man to his tent! To your rifle and cartridges!’ It was a flashpoint in Colorado’s water history (Boyd 1890). Fortunately, Cameron and Eaton calmed the crowd, the agitator was subdued, and the meeting ended without bloodshed, but also without a solution. As luck would have it, rain fell a few days later and reduced the need for irrigation water. Dialogue continued, however, since it was apparent that a formal system of water allocation was needed. In the following weeks and months, an understanding developed between the two settlements that those irrigators who constructed and diverted water first from the Cache la Poudre River were entitled to a more senior right than those who came later. These were the first concepts of the Doctrine of Prior Appropriation, which would become part of Colorado’s state constitution two years later in 1876. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using water for the same purpose.2

Many historians believe that the basis for the Doctrine of Prior Appropriation (‘first in time, first in right’) originated in 1849 in the gold camps of California and Colorado, and was simply brought to Colorado the following decade. Evidence, however, supports the concept that American gold miners were already accustomed to a priority system for use of water on mining claims. WELSH TIN MINING MEETS WESTERN WATER LAW Interestingly, there is evidence that the water allocation system developed in California may have had origins in the tin mines of Wales and England 3,000 years earlier. Around 1000 BC, tin was found in many riverbeds and streams in Wales, with deposits the size of gravel and pebbles. At that time, tin was a highly valued mineral because it was used in the production of bronze and pewter. When this easy-to-find ore played out, ancient tin miners had to dig into the earth to follow the mineral veins. Tin production continued for several thousand years, and water became an integral part of the mining process. Men who worked in tin mines were called ‘tinners’, and legal procedures were established to protect their rights. Tin mining laws were administered

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by ‘stannery courts’ (from the Latin word stannum, meaning ‘tin’). A stannery court had its own jail to enforce tin mining laws, and collected taxes to pay for expenses. Ownership of the river bottom was a common method of allocating land for tin mining, and provided the legal basis of property rights. Miners used flowing water to wash away sedimentary materials (sand, soil, etc.) from the tin ore. Water canals (called leats) were constructed to deliver water from a stream to tin mining areas. Millions of tons of overburden were removed with the water delivered by English leats. By the late 1500s AD, however, drinking water needs came into conflict with the prior rights of tin miners. Freshwater was vital on ocean-going merchant and naval ships, and English sea captains did not want to waste time in search of drinking water while away at sea. In 1591, explorer Sir Francis Scott Drake supervised construction of a leat to divert water from the River Meavy to the town of Plymouth, and to also fill water barrels of seafaring vessels. In 1585, the English Parliament approved a Water Bill to authorize construction of Drake’s Leat, and it was signed into law by Queen Elizabeth I. The Drake Leat was approximately 6 feet (1.8 m) wide, 2 feet (0.6 m) deep and extended some 17 miles (27 km). It was a monumental accomplishment for the town, and they celebrated with a feast of food and wine when water from the leat first reached Plymouth. A few years later, however, an argument developed between tin miners on Roxborough Down and the town of Plymouth. The miners challenged the Water Bill of 1585 and tried to uphold the stannery laws that gave them prior rights to divert water from the Drake Leat for tin mining. Community members argued that the town’s water supply, and the freshwater source for ships, was more important than tin mining and should take precedent (priority) over the miner’s needs. A commission was set up to settle the dispute, but heated confrontations erupted between the two sides, followed by numerous lawsuits. Eventually, the tinners received a 42-year water lease, but the needs of the town of Plymouth had to be met first. Wisely, the tin miners employed a ‘leat keeper’ to ensure that water flowed properly to their mines. By the mid-1800s, tin mining plummeted in England as richer deposits were discovered in South America, primarily in Bolivia. Many had already left to work in tin mines in South America and Mexico, and then, in 1849, were attracted to the gold mines of California. These migrations brought the traditions of leat construction, first possession and stannery courts to the gold fields of the United States. In 1882, back in Colorado, the landmark Colorado Supreme Court case of Coffin v. Left Hand Ditch Company (discussed earlier) put the Doctrine of Prior Appropriation (and inherently, first possession) to the test in Colorado. Coffin, a downstream riparian landowner,

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claimed injury and sued the upstream Left Hand Ditch Company. Coffin argued that it was illegal for the ditch company to divert water away from riparian lands. He reasoned that the riparian doctrine should be followed in Colorado so that only land adjacent to a stream could be irrigated. (His reasoning would also have left additional water supplies in Left Hand Creek for his downstream property.) The Colorado Supreme Court ruled against Coffin, and stated that the irrigation company was entitled to divert and use water on non-riparian lands under the Doctrine of Prior Appropriation. Since the state was the sovereign over water issues, the Colorado Supreme Court had the authority to issue this ruling, and eliminated the use of the riparian doctrine from Colorado water law. Transboundary waters between individual US states In 1922, a new water allocation system was developed when the Colorado River Compact was signed by the seven western states along its course, and was ratified by the US Congress. A compact between states is similar to a treaty between countries, and was developed to share the flow of the Colorado River between the states of Arizona, California, Colorado, Nevada, New Mexico, Utah, Wyoming, and the sovereign nation of Mexico. Under the Colorado River Compact, each state and Mexico received an entitlement (allocation) to a given volume of water, based upon a 10-year average of total annual flows at Lee Ferry in Arizona. The purpose was to eliminate any attempt by a state to declare a priority of water use based upon ‘first in time, first in right’. Similar compacts had been developed on numerous rivers in Colorado, and in most western states. This method of water allocation worked well for rivers with large volumes of water. At issue were the competing issues of the Doctrine of Prior Appropriation and the concept of ‘sharing’ the limited flows of the Colorado River. Since this was an interstate issue, the US federal government, as the sovereign, had final authority through the approval process of the elected US Congress. By contrast, no sharing agreements exist within the state of Colorado for the use of water resources. By order of the state constitution, all waters in the state are allocated by the Doctrine of Prior Appropriation unless otherwise determined by the Colorado Legislature. This system of water allocation works well for rivers with lower flows. Groundwater use conflicts with surface water laws In the United States, groundwater law was based on land ownership, similar to riparian law. Historically, if you owned property, you could dig or drill a well to tap underground water supplies. During the 1900s,

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however, as more wells were drilled and well-to-well groundwater interference became more prevalent, many areas adopted reasonable use principles. These groundwater use laws were adopted by individual states, or authorized by local water districts, and not directed by the federal government. The result is that groundwater law in the western United States can vary widely between states. For example, Colorado has one of the most unique groundwater legal systems in the country since it follows the strict Doctrine of Prior Appropriation for alluvial groundwater (groundwater that is connected to surface water, also called ‘tributary groundwater’). Colorado was one of the first states in the country to recognize the long-term connection between surface water and groundwater. This has led to extensive litigation and case law in the area of alluvial groundwater. (Non-alluvial (non-tributary) groundwater falls under a different set of water laws in Colorado, and will not be discussed here.) Colorado’s Doctrine of Prior Appropriation (also referred to as the ‘Colorado Doctrine’) has been the system used by most western states in the US. In Colorado, this legal rule of ‘first in time, first in right’ has been adhered to quite rigidly because it provides certainty for senior water right holders. It can, however, also be viewed as detrimental to environmental needs and holistic water management schemes. This debate is on-going, and there is no place where conflict is more apparent than between alluvial groundwater irrigators and senior surface water right holders along the South Platte River of north-eastern Colorado. One of Colorado’s first lawsuits regarding tributary groundwater pumping and its effect on streamflow occurred in the 1886 court case of McClellon v. Hardle (McClellon v. Hardle 1893). Plaintiff McClellon owned 400 acres (162 hectares) of land, and constructed an irrigation ditch from nearby Lone Tree Creek – an intermittent stream (flowed occasionally). Hardle, the defendant, later drilled a well near the same creek and installed a pump to irrigate his fields. At times, Lone Tree Creek flowed above ground and at other times it went dry. The plaintiff argued that Hardle’s well pumping depleted the flow of the creek and should be stopped. The court ruled that, yes, it was an invasion of the rights of a prior appropriator – the landowner (McClellon) who had constructed the diversion structure from Long Tree Creek – for another (Hardle) to divert from a stream surface or subterranean by means of dams, wells or pumps, whereby the flow of water was diminished. In this case, however, ‘the Court felt that the evidence was vague and indefinite, and did not approve the claim for damages’ (Rodosevich et al. 1976). The issue was never completely resolved, and the debate continued between Colorado surface water and groundwater users. (The US federal government did not get involved because the State of Colorado had sovereignty over surface and groundwater allocation within its borders.) Drought in the 1930s and 1950s exasperated Colorado’s surface water users,

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who felt that irrigators who pumped tributary groundwater for irrigation were depleting their surface water flows. Threats of lawsuits were common, but the groundwater hydrology science of the era was still inadequate to create a rigid groundwater allocation system. This all changed in 1969 when the Colorado Water Rights Determination and Administration Act was approved by the Colorado Legislature to regulate the use of tributary groundwater in the state.3 Since then, Colorado water officials have worked to accomplish the two goals of the act: i) maximum utilization of the water of the state; and ii) protection of senior surface water rights. In 2002, a terrible drought – the driest year in over 300 years to hit the South Platte River Basin of Colorado – caused a historical flashpoint. Surface water flows were at all-time lows, but well owners could legally continue to pump. The conflict was intense and expensive as millions of dollars were spent on water lawyers and water engineers in water court (a judicial forum in the district court system of Colorado). Junior well owners argued that their out-of-priority pumping would not injure senior water rights for several years because their wells were several miles (kilometres) from the South Platte River. This did not sit well with senior appropriators, who argued that future surface water supplies had to be protected today even if it meant shutting off junior groundwater pumpers. A settlement was eventually reached whereby junior groundwater irrigators agreed to install meters on their wells, and cut back on their

Figure 18.7. Urban growth in Denver, Colorado, 2002. Photo credit: Kirk R. Johnson, curator of paleontology (http://www.dmns.org/main/minisites/ancientDenvers/today.html).

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groundwater pumping by as much as 75 per cent of historic amounts. In addition, junior groundwater users had to acquire augmentation (supplemental) water to replace all out-of-priority depletions to downstream senior water appropriators. This was a serious economic blow to the groundwater irrigators of the basin. The final result was that thousands of acres of farm land, irrigated by wells, were taken out of production, and reverted back to either dryland crops or weeds. In some areas, economic impacts were significant due to the loss of crop and reduced land values. In other situations, groundwater users were fortunate to also own senior surface water rights, which helped mitigate financial losses. All in all, it was a tragic situation for many groundwater users in the South Platte River Valley, who had historically utilized the alluvial aquifer to irrigate their crops for many decades. Senior surface water right holders, however, argued that it took too long for their water rights to be protected from junior groundwater appropriators. Future water issues Colorado’s population is growing at a rapid rate (see Figure 18.7), and needs additional municipal water supplies. In the next 20 years, an estimated 3 million people or more will move to the South Platte River Basin of Colorado – doubling the current population. In addition, climate change will lead to warmer temperatures, which in turn will cause earlier snowmelt runoff – and less water availability during the dry summer months of July and August. Environmental protection requirements will also place additional needs upon an already strained water system. In 2005, the Colorado state legislature adopted a state-wide waterplanning process as part of the Colorado Water for the 21st Century Act. This legislation established nine river basin planning committees across Colorado. These ‘basin roundtables’ bring together more than 300 private individuals to participate in the state-wide planning process. Roundtable members consider consumptive and non-consumptive water use needs of various river basins, available water supplies, and proposed projects to meet future water needs. This information will help decision-makers and the general public to determine sound policy parameters to meet Colorado’s increased water demands over the next 20 years. Unsurprisingly, other locations in the western United States are facing similar water problems. In 2005, the Nebraska Supreme Court ruled in Spear T. Ranch Inc. v. Melvin G. Knaub 4 that tributary groundwater pumping from Pumpkin Creek in western Nebraska caused injury to senior water users. There are approximately 500 tributary wells along Pumpkin Creek, and a moratorium was implemented on new well drilling by the local natural resources district. The State of Nebraska planned to utilize funds from the US Department of Agriculture to retire (take out of production)

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100,000 acres (40,500 hectares) of irrigated land to mitigate the negative effects of tributary groundwater pumping on surface water users. In neighbouring Kansas, upstream tributary groundwater pumping in Nebraska is negatively impacting streamflows of the Republican River. These depletions, in turn, have caused the state of Nebraska to miss its Republican River Compact requirements to the downstream state of Kansas. Additional US examples of streamflow impacts can be found in Robert Glennon’s excellent book (Glennon 2002). His case studies include the Santa Cruz River in New Mexico, Edwards Aquifer in Texas, Straight River in Minnesota, and several others. Water rights and groundwater pumping conflicts are not confined to the western US. Internationally, groundwater pumpers in the Murray River Valley of Australia are facing massive cuts to their water licences due to recent water reforms, not unlike the problems of tributary groundwater irrigators of the South Platte River Valley of Colorado. The Australian government, as the sovereign, will provide monetary payments to groundwater pumpers for cutbacks, but irrigators argue that these government payments fall short of their financial losses from lost water supplies. The issue of alluvial groundwater pumping and the impacts to surface water flows is a worldwide phenomenon. A second issue of keen interest in Colorado is the concept of the Public Trust Doctrine. In California, the 1983 Superior Court case of National Audubon Society v. Superior Court held that the concept of ‘public rights’ applies retroactively to existing water allotments (see, e.g., Dunning 1980; Instream Flows, Anonymous 1988). This ruling sent shockwaves throughout the West as the legal precedent had been established to allow other states to adopt (through a vote of the people) a similar public trust system. In effect, water rights established in the past, perhaps as old as 1860, would be circumvented by a public trust water right to maintain minimum stream levels, wetland inundation rights, or other environmental needs. Recent attempts to place this issue on the election ballot have been unsuccessful. CONCLUSION History teaches us that cooperation and conservation ultimately provide sound water management systems for a state, region, or country. Today’s water managers are faced with tremendous challenges. How do we provide adequate water supplies for growing populations? Is it best to allow individual states to enact water laws, or would a federal approach provide greater protection for the environment and other public issues? How can we manage our current water systems in the face of changing climate patterns? How can we afford to make necessary system improvements amid economic downturn? And how do we protect, and

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even enhance, our environmental needs? Is more money the answer? Or are we at a flashpoint in our history of water management that will require entirely new paradigms? The water history of Colorado and the western United States can provide examples and lessons of how certain management schemes can be accomplished, and how other management systems may be lacking. Our challenge is to learn from the mistakes and accomplishments of the past to prepare for the water needs of the future. NOTES 1 2 3 4

Coffin v. Left Hand Ditch Company, 6 Colorado, 443, 447 (1882). Article XVI, Section 6, Colorado Constitution. 1876. Sections 37-92-101, et seq., Colorado Revised Statutes. Spear T. Ranch Inc. v. Melvin G. Knaub et al. No. S-03-789. 269 Neb. 177. Supreme Court of Nebraska, 21 January 2005.

REFERENCES Anonymous, ‘The Public Trust and the Future of the West,’ in Instream Flow Protection in the Western United States: A Practical Symposium (University of Colorado Natural Resources Center, 3 March–1 April 1988). Boyd, David, A History: Greeley and the Union Colony of Colorado (Greeley, CO: Greeley Tribune Press, 1890). Brackenridge, Henry M., Views of Louisiana (Baltimore, MD: Schaeffer & Maund, 1817). Cech, Thomas V., Principles of Water Resources: History, Development, Management and Policy, 3rd ed. (Hoboken, NJ: John Wiley & Sons, 2010), pp. 252–3. McClellon v. Hardle, 3 Colo. App. 430, 33, p. 280 (1893). Reviewed in the 1970 Denver University Law Review, 47(2), pp. 308–9. Dunbar, Robert G., Forging New Rights in Western Waters (Lincoln, NE: University of Nebraska Press, 1983), p. 12. Dunning, ‘The Significance of California’s Public Trust Easement for California Water Rights’, University of California Davis Law Review 14 (1980), p. 357. Jones, P. Andrew and Cech, T., Colorado Water Law for Non-Lawyers. (Boulder, CO: University Press of Colorado, 2009), p. 57. Glennon, Robert, Water Follies: Groundwater Pumping and the Fate of America’s Fresh Waters (Washington DC, WA: Island Press, 2002). Recopilacio ´n de Indias, Law XI, Title XVII, Book IV. Emperor Carlos and the Empress Regent in Valladolid. 20 November 1536. From Law of the Land Grants: The Land Laws of Spain and Mexico (Los Sanchez Limited Partnership). Pennington, Karrie and Cech, Thomas V., Introduction to Water Resources and Environmental Issues (Cambridge: Cambridge University Press, 2010), p. 249.

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Rodosevich, G.E., Nobe, K.C., Allardice, D., and Kirkwood, C., Evolution and Administration of Colorado Water Law: 1876-1976 (Littleton, CO: Water Resources, 1976), p. 137. US Department of Commerce, Economics and Statistics Administration, Population Distribution and Change: 2000 to 2010. (US Census Bureau, March 2011). Available at: http://www.census.gov/prod/cen2010/briefs/ c2010br-01.pdf, accessed 19 July 2012.

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Sovereignty and the Joint Management of Shared Transboundary Water Resources in the West Africa Sub-region

Joe Goldface – Irokalibe TRANSBOUNDARY WATERS IN WEST AFRICA Introduction The West African sub-region refers to the area of land lying on the west coast of Africa. The region comprises nations such as Senegal, Gambia, Guinea, Guinea Bissau, Cape Verde, Liberia, Sierra Leone, Mali, Sao Tome and Principe, Co ˆte d’Ivoire, Ghana, Togo, Burkina Faso, Niger, and Nigeria. The countries of West Africa form a vast area of more than 6 million km2 and contain more than 260 million inhabitants. They show notable differences in terms of climate, natural terrain and population, but nevertheless form a homogeneous unit, initially by geology and geography, culture, history and socioeconomic conditions, and finally by a common will of regional integration. West African countries are strongly interdependent as regards water. Although covering less than a quarter of the surface of the African continent, West Africa contains 25 transboundary river basins, this figure being slightly less than half of the 60 rivers found in Africa. With the exception of Cape Verde, each country in the region shares at least one international river (ECOWAS 2007). In the 1960s, immediately following the attainment of political independence, the newly emergent states of the West African sub-region set out to pursue their independent development agenda without reference to each other. Agriculture formed the very basis of their respective development efforts, and because they needed hydroelectric power to jumpstart their energy sector needs, they soon realized that their common interest lay in collaborative management of their shared resources including transboundary waters in order to check pollution, over-exploitation and other upstream activities considered harmful to the survival of the region’s ecosystem. Their common resolve for economic integration and conflict prevention gave birth to the Economic Community of West African States (ECOWAS). Chambas (2007), states that ECOWAS emerged on 28 May 1975, at a time when the world, and Africa particularly, was going through a crisis in international economic

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Figure 19.1. Map of the West Africa sub-region. (Source: Federal Ministry of Water Resources, Abuja, Nigeria)

relations, manifested in falling living standards in developing countries; over-dependence of Africa on the economies of the former colonial powers; limited space for manoeuvrability by the individual developing countries on the international scene; and the paradox of formal sovereign equality of states yet inequality in the ability to act. The formation of ECOWAS as a platform for attaining collective self-reliance thus gave expression to the quest for the joint management of shared resources including transboundary water resources. THE SITUATION OF MAJOR TRANSBOUNDARY WATERS IN WEST AFRICA Collaborative management of surface waters It is settled law and a well-known fact that the infringement of sovereignty provides a significant irritation in transboundary environment action. The quest for collective self-reliance in transboundary water resources management means that for any joint water management structure to succeed in its mandate, clear provisions must be made as to the limit of its jurisdiction and

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competence. It is for this reason, therefore, that institutions charged with water resources management – whether they be bilateral, multilateral or even national institutions – are the result of some accord or legislation. The main multilateral accords governing the management of West Africa’s transboundary waters are the following: i. The Revised Agreement Relating to the Creation of the Niger Basin Authority (N’Djamena, 29 October 1987). ii. The Revised African Convention on the Conservation of Nature and Natural Resources (Maputo, 11 July, 2003). iii. The Niger Basin Water Charter (Niamey, 30 April, 2008). The Revised Maputo Convention (2003) This Convention covers the conservation of natural resources in general. Nevertheless, as far as water is concerned, the instrument commits parties to, in particular, accept that water resources are to be managed collaboratively by nations in the case of transboundary resources and ecosystems, also taking into account ecological processes, for instance by preventing harm resulting from excessive abstraction to the benefit of downstream communities and states. The revision of the 1968 Convention, first mooted in 1980, brings the treaty up to date with the latest developments in international law, and the move towards sustainable development. The emphasis on collaborative management makes it relevant to the present quest for the collaborative management of surface and ground water resources in West Africa and reflects present trends at regional and international levels for the joint management of shared water resources. The Niger Basin Water Charter (2008) This Charter is founded upon the principle of equitable use. This principle is more permissive of flexibility in terms of future development needs of state parties. The provisions of Chapter VIII, i.e. Articles 27 and 28, recognize the need for joint ownership of common facilities and facilities of common interest. The Charter, thus, confers on parties the right to determine the status of common facilities and facilities of common interest, as well as the conditions for participation in funding the management and sharing the benefits resulting from the construction or use of these facilities. In this manner, the parties subordinate their sovereignty to the regional water body, the Niger Basin Authority (NBA), by undertaking to accept that facilities built on the Niger Basin and that have been the subject of a declaration to the Authority by the state owners or joint owners, may obtain the status of common facilities or facilities of common interest.

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The River Niger – special reference The River Niger (see Figure 19.2) is the largest single river in the West African sub-region. Rising in the highlands of Guinea, the river is about 4,200 km long from its source to its mouth in the Niger Delta region of southern Nigeria where it empties itself into the Atlantic Ocean. The catchment basin is about 1,870,000 km2 and the drainage area covers nine countries, namely Guinea, Mali, Burkina Faso, Co ˆ te d’Ivoire, Benin, Niger, Cameroon, Chad and Nigeria. These countries are grouped together under the institutional framework known as the NBA. The NBA being the primary point of contact serves as a veritable avenue for mutual dialogue on shared water resources between these states. Increasing local demands on available water resources for hydroelectric power generation, irrigated agriculture, urban and rural water supply and other uses allied with expanding economies may trigger further developments that will increase the pressure of demand on the waters of the sub-region. In the absence of consultations and agreements, the diverse interests of the states of the sub region with enormous investments in their water resources would be severely affected. Nigeria, for instance, with its enormous investments in large hydroelectric dams on the River Niger, as well as its expansive irrigation networks, will suffer immense damage as the most downstream riparian state, should upstream co-riparians embark on any free-for-all unregulated and uncoordinated exploitation of the River Niger, either through pollution, or river diversion among different kinds of harmful practices.

Figure 19.2. Map of the Niger River Basin. (Source: Federal Ministry of Water Resources, Abuja, Nigeria)

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NBA – treaty rights and obligations The main right accruable to member states under the NBA Treaty is deducible from the goal of the Authority as set out in Article 3, read in conjunction with Article 4(2). It is thus, the goal of the Authority to promote cooperation among member countries and ensure an integrated development in all areas of energy, water, agriculture, livestock, fishing and fish farming, forestry and forest exploitation, transport and communication. The Treaty further requires the Authority to keep permanent contact with member states in order to share information on development schemes in their components’ territory that concern the Niger Basin. It may thus be said that the rights to share information relating to and to participate in the developmental goals of the NBA, as outlined in Article 3, and as it affects the Niger Basin within each state’s territory, are Treaty rights. The significance of this point lies in the fact that each state became willing to subordinate its own sovereign approach to water resources development in favour of the attainment of integrated regional water resources developmental goals under a common unified basin level template. Perhaps this may be seen as ceding a part of its sovereignty by each signatory state of the Niger Basin Charter. Mali, for example, thus complained of what it considers to be the likely negative effect of the proposed Fomi Dam in Guinea (upstream) on the inner delta of the River Niger in Mali and on the ecosystem of the wetlands. Similarly Nigeria, being the most downstream of the riparian states of the Niger Basin, has expressed concern over the likely effect of the building of the proposed Khandaji Hydroelectric Dam in Niger Republic (upstream). On both occasions, Guinea and Niger have had to stay action pending the carrying out of expert studies by the NBA with the assistance of external development partners. Their sovereign interests notwithstanding, in terms of obligations, member states thus commit themselves to inform the executive secretariat of the Authority about all projects and works that it would like to undertake in the basin. This extends to abstaining from implementing on the portion of the river, its tributaries and sub-tributaries under their sovereign territorial jurisdiction any works likely to pollute waters or negatively modify the biological characteristics of wildlife and flora. Principles of customary international law: relevant state practice vis-a`-vis the ECOWAS region waters A careful appraisal of the rights and obligations accruing to ECOWAS under multilateral treaties and bilateral agreements of relevance to the waters of the sub-region leaves one with the conviction that they conform to the principle of community of interests to which all the states parties subscribe and which lay at the foundation of their state practice. It appears reasonable to conclude on the basis of the state practice of Nigeria, Benin, Burkina

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Faso and Co ˆ te d’Ivoire – nations that have ratified or acceded to all the legal instruments considered and reviewed – that they adhere to at least three of the general principles identifiable in these legal instruments, and that correspond to customary norms. These are the obligations to use an international water course or transboundary aquifer in an equitable and reasonable manner, not to cause significant harm, and to notify potentially affected riparian states of planned measures on an international watercourse. Other provisions of these instruments, such as those relating to the environment, are closely related to, or may even rightly be said to flow, from these principles. To the extent that these provisions are based on the fundamental principles, they too might be said to reflect custom, and to be adhered to by West African nations. GROUNDWATER IN WEST AFRICA There are two main subterranean water systems in West Africa. Broadly speaking, these include the coastal and inland transboundary aquifer systems. The coastal transboundary aquifer system – the Gulf of Guinea The Gulf of Guinea is situated in the West African sub-region of Africa. It consists of two coastal sedimentary basins, namely the Tano sedimentary basin, and the Keta Basin. The Tano extends from Fresco town in the west of Co ˆ te d’Ivoire, up to Axim in Ghana. The Keta runs from Keta town in Ghana, through the republics of Togo and Benin, and terminates in Calabar in the far eastern tip of Nigeria. The combined Tano and Keta formations date from the Cretaceous to Quaternary eras. The joint systems are shared by five countries, namely Co ˆ te d’Ivoire, Ghana, Togo, Benin and Nigeria. These nations are all members of the ECOWAS regional group. For the coastal aquifers of the Gulf of Guinea, there is neither a joint aquifer management body nor a consultation mechanism with responsibility for arbitrating any conflict linked to the exploitation of the aquifer system’s resources. As dependence on groundwater in many parts of the ECOWAS sub-region grows, so does the need for identifying appropriate institutions for managing transboundary groundwater resources. In relation to the coastal aquifer systems of the Gulf of Guinea, the legal and institutional frameworks for attaining joint and efficient management are presently non-existent. The legal challenges facing the ECOWAS parliament in its role of promoting legislation for joint coastal groundwater management in the sub-region include the proper identification and creation anew of the necessary instruments or tools required to ensure that set objectives are attained. In effect, the regional parliament will have to assist in guiding member states in overcoming the difficulties posed by their respective

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legal and institutional systems in order to arrive at agreed joint management platform. Geological and hydrological contexts The Gulf of Guinea consists of two coastal sedimentary basins. The geological history of both of the basins is linked to the opening of the Atlantic Ocean. The sedimentary basin of Tano is an extension of the sedimentary basin of Keta (Mestraud 1970, in Tastet 1979). The lithologic sequence of the sediments involves sand, argillaceous sand and limestone formations. These geological formations date from the Cretaceous and Quaternary eras. The major part of this aquifer system is located in Co ˆte d’Ivoire and consists of three groundwater layers in Co ˆte d’Ivoire and two groundwater layers in Ghana. The Keta Basin covers the coastal area of Ghana and runs through Togo, Benin and Nigeria. The aquifer system consists of four major aquifers in the central area and is distributed from the bottom upwards as follows: confined aquifers dated from the Upper to the Middle Cretaceous period (from the Albain era to the Maastrichtian era) consisting of sandy and calcareous horizons, as well as confined aquifers dated from Ecocene–Paneocene era consisting of limestone. These confined aquifers follow an unconfined aquifer dated from the Miocene–Pliocene era (Continental Terminal) consisting of sands and gravels. The equivalent hydrogeological formation in Nigeria of the Continental Terminal aquifers is the sandy aquifer of the coastal plain (Benin Formation) whose depth can reach up to 800 m, (Ibe et al. 1998) and an unconfined aquifer of the beach consisting of coastal sand dunes (restricted significance) (Gnandi 2007). Inland transboundary aquifers There are two main inland aquifer systems in West Africa: – The Iullemeden Aquifer System (IAS). – The Tauodeni/Tanezrouft Aquifer Systems (TAS) The Iullemeden Aquifer System (IAS) The Iullemeden Aquifer System (IAS) is jointly shared by Mali, Niger and Nigeria. Available information reveals that the IAS covers areas of approximately 500,000 km2, of which about 31,000 km2 is in Mali, 434,000 km2 in Niger and 60,000 km2 in Nigeria. The Iullemeden is a multiaquifer system of a complex nature, consisting of different aquifers composed of inserted cretaceous continental intercalaire sedimentary formations, which contain aquifers with overlying tertiary continental terminal regroupings.

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Recent sedimentary formations, which contain aquifers with overlying laterites and alluvium, are also features of the IAS. The total exploitable water reserves of the IAS are estimated at about 20,000 km 3 . Consequently, the IAS is an enormous strategic reserve of immense subregional significance equalling 50 years of the total flows in the Niger River. The IAS benefits from an appreciable contemporary recharge, mainly from seasonal infiltration from river valley bottoms and from wetlands connected to the aquifer system. The water quality in the IAS is generally good. To date, water quality problems have in general remained local with limited transboundary impacts. The risk, however, of the water resources of the IAS becoming over-extracted as a consequence of on-going and anticipated mining activities in the IAS region linked to the exploitation of oil reserves is ever-present. The Tauodeni/Tanezrouft Aquifer Systems (TAS) The Taoudeni/Tanezrouft Basin is a closed Saharan transboundary basin of Taoudeni and Tanezrouft aquifer systems spread 2 million km2 from the extreme North of Mali and the Islamic Republic of Mauritania to the South of Algeria (1,140,000 km2 in Mali, 500,000 km2 in Mauritania and 360,000 km2 in Algeria). The Aquifer covers a terrain ranging from the Paleozoic to Quartenary eras in age in the Republic of Benin. While Paleozoic formations are consolidated sedimentary rocks and constitute discontinuous aquifers, the overlying terrains, which range from Mesozoic to Quaternary formations form continuous aquifers throughout Mali and the Islamic Republic of Mauritania and can be differentiated into four superposed aquifers: – – – –

Upper Continental Terminal (CT), Combined Continental Intercalaire (CI) and Continental Terminal, (CT), Upper Cretaceous and Lower Eocene, and, Continental Terminal with Quartenary.

The aquifer system has a total estimated reserve of water up to 966 million m3 for the CI and CT group and 844 million m3 for the complex CT with Quartenary. So far, the groundwater abstraction, presently, does not seem to negatively affect the system in terms of water level or water quality and the resource is good as potable water supply. Changing land use and deforestation in the recharge area of the aquifers and in the wetlands are a source of major risk, with a potential for transboundary impact. The risk and uncertainty of climate change, the anticipated increase in development and in extractions from the aquifers,

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and the risk of pollution from surface watercourses all contribute to the potential for transboundary conflict. Against this background, there has emerged a feeling that there is need for an acceptable mechanism for the future collaborative management of the water resources of both the Iullemeden Aquifer System (IAS) and the Tauodeni/Tanezrouft Aquifer Systems (TAS). Dynamics of transboundary aquifer management Given the diverse physical, political and human interactions within transboundary aquifer systems, the management of these shared water systems may be somewhat difficult. Issues of increasing water scarcity, degrading water quality, rapid population growth, unilateral water development, and skewed levels of economic development are routinely cited as potential disruptive factors in co-riparian water relations. These issues are just as pertinent to groundwater, given that groundwater basins do not conform any better to boundaries or involve fewer externalities than surface water. As the dependence on groundwater in many parts of the world grows, so does the need to identify appropriate institutions for managing shared aquifers (Hayton 1982). That said, there is only scant practical experience in joint management of international – shared – aquifers. Groundwater has only rarely been mentioned in international treaties (Hammer & Wolf 1997). Notwithstanding these difficulties, the states joint Iullemeden Aquifer System and the Tauodeni/Tanezrouft Aquifer Systems (Mail, Niger, Nigeria, Algeria, Benin, Burkina Faso and Mauritania) have demonstrated a friendly disposition towards cooperation over shared water resources. These nations met in Abuja, Nigeria from 24–25 March, 2014, to discuss the setting up of a Joint Consultation Mechanism for the management of the two aquifer systems. Elsewhere in the world, the establishment and maintenance of transboundary water institutions have proved to be a decisive factor in conflict mitigation efforts. The existence or non-existence of water management institutions affect co-riparian water relations to a greater degree than well-known variables such as ecological factors, climate and the availability of water, social demography, the state of national economic development and the political system. In places where transboundary riparian institutions exist, the relationship between co-riparians points towards coordinated and cooperative coexistence. This is not so much the case where no treaty institutions exist to ensure cooperative management. Institutional development in groundwater management International law does not provide much assistance in structuring joint management institutions, as it has traditionally focused on the allocation of (surface) freshwater, rather than on cooperative mechanisms (Benvenisiti

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1996). Given the complexity of groundwater management and the lack of experience in the transboundary management of aquifers, an effort to identify structures specifically suited for the management of shared international groundwater resources is, therefore, warranted (Feitelson & Haddad 1998). Globally, the international community has developed guiding principles and laws for the management of international freshwater. At a more local scale, regional bodies and individual governments have developed protocols and treaties governing the management and protection of specific international water bodies. Together, these developments have fostered greater understanding and promoted the objective of coordinated management within the world’s international basins (UN Environmental Programme 2002). Groundwater issues Three main groundwater issues, which must be given adequate attention in any scheme of proper collaborative management of the Iullemeden Aquifer System and the Tauodeni/Tanezrouft Aquifer Systems, are tied to excessive pumping and consist of the following: – Water quality (e.g., salt water intrusion). – Land subsidence. – Surface flow. Groundwater quality The properties of an aquifer and the length of time the water is in contact with the aquifer material have the most influence on quality. For alluvial deposits, the quality of the water infiltrating (from precipitation and applied irrigation water) as deep percolation and recharging from streams in the aquifer also has an important influence on groundwater quality. Recharge mechanisms are different in confined and unconfined aquifers. Since confining layers reduce the volume and rate of direct recharge, the effect of recharge on groundwater quality in confined aquifers is less than in unconfined aquifers (Guy et al. 1994). A variety of chemicals can contribute to groundwater contamination. Salt, fertilizers and pesticides (including insecticides, herbicides and fungicides) used in agriculture may dissolve in water and leach into groundwater. Other causes of contamination include the surface disposal of liquid waste, for example through the use of septic tanks. Leaking sewers and underground storage tanks, industrial waste and oil-field brine disposed through injection wells, as well as mining waters, are all additional sources of risk to the quality of groundwater (Everett 1990). Salt-water intrusion occurs when saline waters migrate into freshwater. Excessive groundwater pumping in basins located near saltwater, such as

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basins along the coastline, estuaries or inland lakes, may be susceptible to saltwater intrusion if they are not managed carefully. Groundwater pumping can also induce the migration of poor quality water from adjacent vertical areas. Interaquifer movement of poor quality water can occur when there is a difference in the hydraulic head across aquifer boundaries through well screens, perforated casing, or open boreholes. Over-pumping from freshwater aquifers overlying salty water may also cause upwelling of connate saline water from under the base of the freshwater (Everett 1990). Land subsidence Land subsidence from groundwater pumping is influenced by changes in water level or piezometric head and the compaction characteristics and thickness of aquifer deposits (Poland & Evenson 1966). The dynamics of land subsidence because of groundwater pumping is different for different aquifers. The economic consequences may include the cost of re-levelling land, repair or replacement of deep wells (because of ruptured casings) and unexpected flooding from changed gradients and the courses of streams and creeks. Subsidence can also cause serious problems in the construction and maintenance of highways water and wastewater conveyance structure (Ireland 1986). Surface flows Groundwater contribution to stream flow is an important hydrogeological fact and may be the source of recharge of a river within a basin. Between Sabon Brini and Sokoto, the Rima River in Nigeria loses about 5.076107 m3 of water to the ground every year. This is influent seepage. Much of this water is lost to the alluvium in the river bed but part of this may recharge the Rima Group (Oteze 1972). Still in Nigeria, the springs issuing from the Kalambaina limestones generally last longer into the dry season. They are good for tapping locally in small villages but many small springs may coalesce to support perennial flows in large rivers, such as the River Kaduna, the dry season flow of which is derived principally from small seepages from the basement. Water seepage springs are the principal source of perennial surface water (Oteze 1972). Groundwater use increases during dry periods when surface supplies become restricted. Sustained pumping of groundwater over an extended period can ‘overdraft’ a basin – a condition where depletion exceeds aquifer safe yield. Overdraft reduces groundwater storage in a basin and causes water levels to decline. Excessive water level decline may even cause subsidence and affect groundwater quality (Guy et al. 1998). On-going regional discussion on the creation of a consultative mechanism for the joint management of transboundary aquifers imposes

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an obligation on the West African states to be ready and willing to cede part of their sovereignty over control of ground water within their respective sovereign territories whenever such regional joint management institutions evolve. Issues, such as abstraction rights, pollution control, cross-border inspection of facilities and emergency response mechanisms can then be jointly enforced by taking into consideration such vital groundwater issues elaborated above. THE CHALLENGES OF SOVEREIGNTY Regional water policy and other emerging issues Enhancing regional consensus and collaboration in water use is a critical factor of socioeconomic development in all the countries of West Africa and is significantly instrumental to the survival of natural ecosystems. The important role of consensus building and mutual collaboration in the beneficial management of shared water basins is a matter of global interest and was re-emphasized at the 1992 UN Conference of Environment and Development Earth Summit in Rio de Janeiro. It must be said straightaway, however, that at the present time the states of the West African sub-region have not formally adopted a unified regional policy on water. Nevertheless, efforts are on-going to attain this united position. In March 2000 the ECOWAS Council of Ministers of Water and Environment adopted the ‘West African Vision of water, life and environment for 2025’. This Vision statement reads: In 2025, water resources are managed in an effective and practical way, in a sustainable way for the environment so that each person in the region can have access to the safe drinking water, for basic needs, waste disposal, food security; poverty is reduced, human health is protected, and biodiversities of terrestrial and aquatic systems are protected.

With the setting up of the Permanent Framework of Coordination and Monitoring of Integrated Water Resources Management, the ECOWAS, in collaboration with the West African Monetary Union, and in consultation with all the stakeholders, intends to harmonize and integrate various water polices in the region and to define a water policy framework in West Africa in order to reconcile economic rationality and social equity, economic development and environmental protection. The general objective of the West Africa Regional Policy as contained in the preliminary document of May 2007 is to contribute to poverty reduction by advising the member states on water resources management, and reconciling economic development, social equity and environmental protection. There are three aims. First, the Regional Policy aims to foster the development of community guidelines in terms of water management. This will ensure that

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nations of the sub-region manage their water resources within the agreed regional template. Second, it aims to support the harmonization and integration of water-related policies in the region. This approach aims to introduce synergies and coherence in policies as well as the harmonization of legislation based on common regional policy on transboundary waters. Third, it aims to encourage governments to develop frameworks for water management at all levels of the countries and transboundary basins in West Africa by reconciling economic development, social equity and environmental protection. The Policy is anchored on guiding principles of water resources management derived from consensus reached at various international fora, especially in Dublin and Rio in 1992. These principles, commonly referred to as the Dublin Principles and Rio Principles, respectively, are now of universal application. The proposed strategic areas of intervention aimed at achieving the general objective of the Regional Policy include: the reform of water governance, promoting of investment in the water sector, and the fostering of regional cooperation and integration. Other emerging issues identified by Gnandi (2007) include a higher population pressure, aggravated by a fast and unplanned urbanization (the coastal area of the Gulf of Guinea is densely populated and will have nearly 100 million inhabitants by 2050) with contiguous cities from Keta area (Ghana), through the coastal areas of Togo and Benin up to Calabar (Nigeria); a progressive intensification of agriculture resulting in land degradation; and a fast-growing industrial sector (nearly 80% of industries of countries of the Gulf of Guinea are located in the coastal areas). Due to different uses of the resource, the role of water in the sub-region is becoming more critical every day, thus resulting in an increasing degradation of its quality (phosphate-induced pollution generated by phosphate mines in Togo and other pollution factors such as nitrate, heavy metals, and traces of metals in the south-east of Nigeria (Asubiojo et al. 1997), and bacteriological pollution. Climate change at global level can, in the mid or long term, result in a progressive rainfall scarcity in the basin. Its conjunction with the urban development process can cause a drastic reduction of the groundwater recharge. This is confirmed by the state of the aquifer of Abidjan where the basin water level has been decreasing by 21 cm per year. There is ignorance of the interaction between the aquifer recharge process and the recharge areas, the geometry of aquifers, the real linkages between surface water and groundwater layers in both of the basins, the available reserves and the extension of both of the aquifers. The unplanned use of water resources and the lack of monitoring activities as regards the aquifer levels can will sooner or later result in challenging issues, such as salt intrusion in catchments areas such as at Godomey, Benin (Boukari et al. 1995) and all the cities located on the barrier beach of Co ˆ te d’Ivoire at Axim and Keta in Ghana, at Lome in Togo, and at all the coastal cities in Nigeria.

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For a regional policy document to commit states and basin organizations, it has to be formally adopted at the ECOWAS level to acquire legal validity. At the national level there are often contradictions in policies and little is done to find synergies. A visible manifestation of this is the absence of clear linkages between wetland management policies, sectoral water policies, and related policies on forest and land management, land tenure or climate change. A sound water policy also requires the ability to establish effective linkages between departments and economic sectors to enable integrated planning and management. Legal and institutional challenge To date, the legal frameworks that deal with water management, at the national level and at regional and transboundary levels, are often conflicting. Collaboration between nations is often hampered by the incompatibility of national regulations. In order to foster regional collaboration within shared river basins, legal obstacles often have to be dismantled. The legal challenges mainly involve the re-examination of the necessary instruments or tools currently existing and modalities for rehabilitating or strengthening them and, if required, the creation of new ones on a regional basis to ensure that the objectives that are set are achieved. Appropriate bilateral or multilateral water resources agreements may not foresee every possible future scenario. Changing circumstances and interests over water rights create dynamic processes that impel the ECOWAS parliament to assist states in the sub-region to fashion new responses to emergent situations with a view to attaining new goals. That said, the ECOWAS parliament, through its activities, should support and assist the nations of the sub-region to set up an enabling legal and institutional framework that will enhance and consolidate intergovernmental and regional cooperation in the management of shared waters, including surface and groundwater, and – where appropriate – seek information on progress made or needed in implementation of agreements. In addition, the regional parliament should support and where appropriate promote regional intergovernmental dialogue on the implementation of Chapter 18 (freshwater) of Agenda 21 for the purpose of recommending measures needed to strengthen implementation. It should also support the states of the region to seek external support and participation in any scheme of collaborative management of their water resources, as experience has shown that international donor support in water resource management is more readily available to states jointly seeking to manage their transboundary water resources within a shared basin. Finally, consider and support legislation in member states that promotes adequate and timely funding of activities related to catchment protection, watershed management, data collection, processing and sharing, and pollution control is needed as it relates to transboundary

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surface and groundwater resources of the sub-region through contact and advocacy at the appropriate level and fora. There is only scant practice experience in the joint management of international shared aquifers. Indeed, until recently groundwater was not mentioned in many existing shared water management instruments in the sub-region. Despite this, joint management is important as the management of an aquifer calls for decisions to be made on a plethora of interrelated matters. The issues that require decisions include pumpage rate, pollution control, drought policies, protection measures, monitoring, recharge enhancement projects, wastewater treatment and reuse policies, and crisis management measures. Additionally, research coordination and sharing of data, models and expertise facilitates an effective and efficient management regime. Joint management implies that institutional structures allowing the coordination of such activities will be established. Where joint management structures already exist, their efficiency and efficacy must be examined and re-examined in the light of existing realities. The ECOWAS parliament thus has to assist the sub-region in re-examining the necessary instruments that currently exist and make institutional reforms as regards water resources management at the country level. WHICH WAY FORWARD? Given the limited international experience in the joint management of underground water, it is not advisable to insist on any one particular model of institution or structure since it is possible that various viable options may not have been tried or implemented before. The ECOWAS should not focus on a single ‘best’ solution copied from elsewhere. Policy analysts and decision makers should identify and choose the institutional development that is suited to the sub-region’s specific circumstances. This approach allows for the discussion of options not tried before. That said, the following criteria should be borne in mind while adopting any cooperative water management approach: i. Flexibility: An effective joint water management structure should allow for a degree of flexibility allowing for changing basin priorities, the availability of alternative sources of water to satisfy competing water demands, new information and monitoring technologies, and changing societal values. ii. Sustainability: The extent to which the structure would enhance resources protection, facilitate adequate responses to emergencies and crisis management. The structure will thus fashion responses to situations such as droughts and instances such as inadvertent spills of industrial/chemical contaminants.

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iii. Conflict resolution mechanism: The signing of a water treaty may not guarantee the total absence of disputes. Any joint water management structure should incorporate clear mechanisms for conflict resolution as well as possess the ability to monitor and verify the agreement so as to remove the potential for future discord. CONCLUSION An evaluation of sovereignty and the rights accruable to individual West African states under the various multilateral and bilateral agreements pertaining to the collaborative management of water throughout the subregion reveals that these instruments are founded on the principles of equitable use and sustainability. A summary of their provisions further reveals that they recognize the need to give preference to existing water uses that are beneficial to the parties alongside the allocation formula that takes cognizance of such factors as climate, rainfall patterns, surface hydrology and related hydrogeology, social and economic needs, and the availability of alternative sources of water to satisfy competing water demands. Furthermore, they recognize the need to maintain an acceptable environmental balance in and around a particular body of water, as well as the dependence of local populations on the water in question for their own livelihood and welfare. There is a manifest willingness among the state parties to the Niger Basin Water Charter to subordinate their sovereignty in favour of joint ownership of common facilities and facilities of common interest. This position, allied with treaty right conferred on parties to refer any difference concerning the interpretation or implementation of its provisions to the regional body ECOWAS or the Africa Union for resolution ‘in the spirit of African brotherhood’, is significant. The right to seek redress for any grievance is an important manifestation of state sovereignty, and an important step towards any conflict resolution process. The collective will of the West African states to resolve disputes ‘in the spirit of African brotherhood’ holds out a lesson for the international community. REFERENCES Asubiojo., et al., ‘Trace Elements in Drinking and Groundwater Samples in Southern Nigeria’ , The Science of Total Environment 208 (USA: Bethesda MD, 1997), 1–8. Quoted by Gnandi, K. et al. Strategy for the Joint Management of Groundwater Resources of the Transboundary Coastal Aquifer Systems of the Gulf of Guinea between Ivory Coast, Ghana, Togo,

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Benin and Nigeria. Being a paper presented at the International Workshop for ECOWAS parliamentarians, Abuja, Nigeria 2–4 October, 2007. Benvenisti, E., ‘Collective Action in the Utilization of shared freshwater: The Challenges of International Water Resources Law’, The American Journal of International Law 90 (1996), 384–415. Boukari., et al., ‘The Impact of Urban Development on Coastal Aquifers near Cotonou, Benin’, Journal of African Earth Sciences, 22/4, pp. 403–408. Chambas, M.I., ‘The Role of the ECOWAS in Achieving the Economic Integration of West Africa’. Lecture Presentation at the Woodrow Wilson International Centre for Scholars Washington, DC, 19 October 2007, 5. ECOWAS, West Africa Water Resources Policy Document, Water Resources Coodination Unit, ECOWAS Secretariat, Abuja, Nigeria, October 2007, 1–22. Everett, L.G., ‘Groundwater monitoring’, quoted in Schenectary N.Y., Feitelson, E. and Haddad, M., A Stepwise Open-ended Approach to the Identification of Joint Management Structure for Shared Aquifers (Water International, Vol. 23, No. 4, December 1998), pp. 227–237. Feitelson, E. and Haddad, M., Joint Management of Shared Aquifers: Final Report (Jerusalem: The Hebrew University, 1995). Gnandi, K., et al., Strategy for the Joint Management of Groundwater Resources of the Transboundary Coastal Aquifer Systems of the Gulf of Guinea between Co ˆte d’Ivoire, Ghana, Togo, Benin and Nigeria. Being a paper presented at the International Workshop for ECOWAS parliamentarians, Abuja, Nigeria 2–4 October, 2007. Goldface-Irokalibe, I.J., Policy, Legal and Institutional Issues in Water Resources Development in the ECOWAS Sub-region, 2007. Being a paper presented at the International Workshop for ECOWAS parliamentarians, Abuja, Nigeria 2–4 October, 2007. Guy Le Moigne, Subramanian, A, Mei, X and Giltner A. (eds), ‘A Guide to the Formulation of Water Resources Strategy,’ World Bank Technical Paper 263 (Washington DC, 1994). Hammer, J.H. and Wolf, A., ‘Patterns of International Water Resources Treaties: The Transboundary freshwater Dispute Database’, Colorado Journal of International Environmental Law and Policy 1987 Yearbook. University of Colorado Law School, Boulder, Colorado, 1987, A/42/427. Havton, R.D., ‘The Law of International Aquifers’, Natural Resource Journal 22 (New York: Columbia University Press, 1982), pp. 71–93. Ibe., et al. ‘The Impact of Urbanisation and Protection of Water Resources’, Journal of Environmental Hydrology, Vol. 6, Paper 9 1998, p. 15. Ireland, R.L., ‘Land Subsidence in San Joaquin Valley’, California as of 1983, US Geological Survey Water Resources Investigations Report no 85-4196, Washington, DC. Mestraud, 1970, in Tastet, 1979, quoted by Gnandi K, et al. in ‘Strategy for the Joint Management of Groundwater Resources of the Transboundary Coastal Aquifer Systems of the Gulf of Guinea between Ivory Coast, Ghana, Togo, Benin and Nigeria’ ECOWAS parliament, Abuja, Nigeria, 2007, 1–2. Narenda, P.S. et al., African Water Resources – Challenges and Opportunities for Sustainable Development World Bank Technical Paper 331, Washington DC. Ostrom, E., Governing the Common (New York, NY: Cambridge University Press, 1990).

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Oteze, G.E., The Hydrogeology of the North-Western Nigeria Basin, Geological Survey of Nigeria, 1972, Federal Government of Nigeria, Geological Surveys, Lagos, Nigeria, 1972. Poland, J.G and Evenson, R.W., ‘Hydrogeology and Land Subsidence, Great Valley, California’, in Bailey, E.H, Geology of Northern California (California Division of Mines and Geology Bulletin) 190 (California, USA 1966). Tri-Partite Consultation Mechanism for Iullemeden Aquifer System, 2005. Expert Report Commission by Food and Agriculture Organization (FAO) Regional Office Abuja, Nigeria May, 2005. UN Environmental Programme, Atlas of International Freshwater Agreements, UNEP/DEWA/DPDL/RS, 02-4, Oregon, 2002, 1–5. Water Resources Management Strategy (WRMS), Trans-boundary Water Group – Draft Final Report (Abuja, Nigeria: Federal Ministry of Water Resources, (FMWR), 2001).

20

Principles of Transboundary Water Resources Management and the Frontier Watercourses Agreement between Finland and Russia

Muhammad Mizanur Rahaman INTRODUCTION This chapter analyses the coverage of transboundary water resources management principles in the 1964 Frontier Watercourses Agreement between Finland and Russia. The study reveals that the 1964 Frontier Watercourses Agreement incorporates several internationally recognized transboundary water resources management principles, for example, the principle of equitable and reasonable utilization, the obligation not to cause significant harm, the principles of cooperation, information exchange, notification, consultation and the peaceful settlement of disputes. In addition, implementation of these principles is ensured by the Joint Finnish– Russian Transboundary Water Commission created by Article 6 of the Agreement. The inclusion of these principles in the 1964 Finnish–Russian Agreement and subsequent successful implementation provides a rare example of best practice for peaceful management of shared water resources. Finland is rich in water resources. Finland’s total renewable freshwater resources amount to about 21,268 m3 per inhabitant and only 2.2 per cent of the total available water is used for various purposes. Ten per cent of Finland’s area is water, including 187,888 lakes. The average discharge of all Finnish rivers is 3,300 m3 per second, which flows into the Baltic Sea (75 per cent), Lake Ladoga (15 per cent) and the Arctic Sea (10 per cent) (Ministry of Foreign Affairs (MoFA) 2009). Finland shares transboundary watercourses with Sweden, Norway and the Russian Federation. Major transboundary rivers include the Muonionjoki, Torninjoki, Tenojoki, Na¨¨ata ¨mo ¨joki, Paatsjoki and Vuoksi Rivers (MoFA 2009, Kotkasaari 2008). Finland manages its transboundary river basins with neighbouring countries peacefully and effectively through transboundary water commissions and cooperation between regional authorities (Fitzmaurice 2003, Fitzmaurice & Elias 2004, Kotkasaari 2008, FWF 2012). In doing so, Finland has been successful in preparing and agreeing treaties incorporating major principles of transboundary water resources management at river basin scale.

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In addition, it has been successful in implementing those treaties in practice through effective joint river commissions. Implementation of the principles of transboundary water resources management in line with the treaties is a major breakthrough achieved by Finland that is very rare internationally or globally (See Kotkasaari 2008, MoFA 2009, FWF 2012). Finland is a pioneer in developing these very transboundary water resources management principles. Starting from the International Law Association’s Helsinki Rules (1966), Finland took the lead in the development of the United Nations Economic Commission for Europe Helsinki Water Convention (1992) and the UN Watercourses Convention (1997). Finland is also among the lead countries to ratify the UN Watercourses Convention (1997) (see Table 20.1). Finland’s commitment to peaceful transboundary river basin management is not only focused on leading the ratification process for these conventions, but is also demonstrated by its actions in managing its transboundary river basins, which are shared with Russia, Sweden and Norway. Finland has concluded transboundary watercourses agreements with Norway and Russia. Major transboundary water agreements between Finland and its neighbouring countries include: . . . .

. . .

Agreement between Finland and Norway on the Frontier Water Commission (1981). Agreement between Finland and Sweden Concerning Frontier Waters (1972) (replaced with an updated treaty in 2010). Agreement between the Republic of Finland and the Union of Soviet Socialist Republics Concerning Frontier Watercourses (1964). Agreement between Finland and USSR Concerning the Regime of the Finnish–Soviet Frontier and Procedures for the Settlement of Frontier Incidents (1960). The discharge rule of the Lake Saimaa and Vuoksi River between Finland and Russia (1991). Agreement between Finland, Norway and Russia Concerning the Regulation of Lake Inarija¨rvi (1959). Agreement between Finland and Norway on the transfer from the course of the Na¨¨ata¨mo (Neiden) River to the course of the Gandvik River (1951).

To implement the water agreements, Finland and its neighbouring countries have created the following transboundary water commissions: . . .

The Finnish–Russian Commission on the Utilization of Frontier Watercourses. Finnish–Swedish Frontier River Commission. Finnish–Norwegian Frontier Water Commission.

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Table 20.1.

A History of Water

Parties to the UN Watercourses Convention 1997 (as of 22 May 2014).1

Country

Ratification

Approval

Finland Syria Norway South Africa Lebanon Jordan Hungary Sweden Netherlands Iraq Namibia Qatar Portugal Libya Germany Uzbekistan Tunisia Spain Guinea-Bissau Nigeria Greece France Burkina Faso Morocco Denmark Luxemburg Benin Chad Italy Niger Montenegro United Kingdom of Great Britain & Northern Ireland Ireland Co ˆ te d’Ivoire Vietnam

25 May 1999 26 January 2000 9 January 2001

29 August 2001 22 June 2005 15 January 2007 22 April 2009 27 September 2010

8 June 2012

25 February 2014

Accession

23 January 1998

2 April 1998 30 September 1998 26 October 1998 22 June 1999

Acceptance

15 June 2000 9 July 2001 28 February 2002 14 June 2005 4 September 2007 24 September 2009 19 May 2010 2 December 2010 22 February 2011 22 March 2011 13 April 2011 30 April 2012 5 July 2012 26 September 2012 30 November 2012 20 February 2013 24 September 2013 13 December 2013 20 December 2013 19 May 2014

This chapter focuses on Finland’s transboundary cooperation with Russia, which is based on the Frontier Watercourses Agreement between Russia and Finland (1964) (MoFa 2009, FWF 2012). Article 6 of the Finnish–Russian Agreement establishes the Joint Finnish–Russian Transboundary Water Commission (FRTWC). The complete list of all transboundary watercourses between Finland and Russia was prepared

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Table 20.2. Main transboundary watercourses between Finland and Russia. (Source: FRTWC 2012.)

Name of the basin

Recipient Sea

Total area (km2)

Oulujoki Kemijoki Pasvik/Paatsjoki Tuloma/Tuulomajoki Kuotajoki Kem (Viena) Ja¨nisjoki Kiteenjoki-Tohmajoki Hiitolanjoki Vuoksi Juustilanjoki Saimaa Canal Hounijoki Tervajoki Vilajoki Kaltonjoki (Santajoki) Urpalanjoki Vaalimaanjoki

Baltic Sea Baltic Sea Arctic Sea Arctic Sea Arctic Sea Arctic Sea Lake Ladoga Lake Ladoga Lake Ladoga Lake Ladoga Baltic Sea Baltic Sea Baltic Sea Baltic Sea Baltic Sea Baltic Sea Baltic Sea Baltic Sea

22,841 51,1272 14,5123 25,800 18,800 27,700 3,861 1,595 1,415 68,501 296 174 622 204 344 187 557 245

In the Finnish territory

In the Russian territory

km2

%

km2

%

22,509 49,467 14,492 3,241 4,915 1,297 1,988 760 1,029 52,697 178 112 370 108 252 122 467 239

98.5 96.8 99.9 12.6 26.1 4.7 51.5 47.6 72.7 76.9 60.3 64.5 59.5 52.9 73.4 65.2 83.8 97.4

332 1,633 19 22,559 13,885 26,403 1,872 835 386 15,805 118 62 252 96 92 65 90 6

1.5 3.2 0.1 87.4 73.9 95.3 48.5 52.4 27.3 23.1 39.7 35.5 40.5 47.1 26.6 34.8 16.2 2.6

jointly by the frontier guards of both countries and approved by the Finnish–Russian Joint Commission in 1971. There are 20 transboundary watercourses between Finland and the Russian Federation (Table 20.2). The largest rivers basins along the Finnish–Russian common border are Vuoksi and Paatsjoki (Figures 20.1–20.3). The average volume of water flowing from Russia into Finland is 100 m3/s. The amount of water flowing from Finland to Russia, in contrast, is on average 900 m3/s, out of which the Vuoksi and Paatsjoki Rivers contribute around 600 m3/s and 150 m3/s, respectively (Kotkasaari 2008: 127). This chapter aims to: . .

. .

Summarize the principles of international water law dealing with transboundary water resources management. Find out to what extent these internationally accepted principles are addressed in the 1964 Frontier Watercourses Agreement between Finland and Russia. Analyse the role of the FRTWC in implementing the agreement. Briefly discuss the scope of the Finnish–Russian water cooperation’s best practices to facilitate implementation of the transboundary water resources management principles in selected South Asian and Central Asian rivers basins, i.e. Ganges, Mahakali, Amu Darya and Syr Darya.

Figure 20.1.

Vuoksi and Paatsjoki watersheds. (Source: FRTWC 2012.)

Figure 20.2.

Vuoksi watershed. (Source: FRTWC 2012.)

Figure 20.3.

Paatsjoki watershed. (Source: FRTWC 2012.)

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TRANSBOUNDARY WATER RESOURCES MANAGEMENT PRINCIPLES There are several principles of transboundary water resources management to be derived from international water law. This section discusses transboundary water resources management principles that are recognized by international convention, judicial decisions, and international treaties (See Rahaman 2009a, 2009b, 2012). These include the principle of equitable and reasonable utilization, the obligation not to cause significant harm, the principles of cooperation, information exchange, notification, consultation and peaceful settlement of disputes. These principles form the basis of the 1966 Helsinki Rules on the Uses of the Waters of International Rivers (hereinafter, the Helsinki Rules) and 1997 UN Convention on NonNavigational Uses of International Watercourses (hereinafter the UN Watercourses Convention) (Rahaman 2009a, 2009b, 2012, Giordano & Wolf 2003: 167). Table 20.3 summarizes the relevant articles of some international conventions and treaties that endorse these principles. The principle of equitable and reasonable utilization This use-oriented principle derives from the theory of limited territorial sovereignty. It entitles each basin state to a reasonable and equitable share of water resources for beneficial uses within its own territory (Article IV of the 1966 Helsinki Rules and Article 5 of the 1977 UN Watercourses Convention). The principle of equitable and reasonable utilization rests on a foundation of shared sovereignty and equality of rights, though it does not necessarily mean equal sharing of waters. In determining equitable and reasonable share, relevant factors such as the geography of the basin, hydrology of the basin, population dependent on the waters, economic and social needs, existing utilization of waters, potential needs in the future, climatic and ecological factors, natural character, and availability of other resources should be taken into account (Article V of the 1966 Helsinki Rules, Article 6 of the 1997 UN Watercourses Convention and Article 13 of the 2004 Berlin Rules). It entails a balance of interests that accommodates the needs and uses of each riparian state. This principle has substantial support in state practice, judicial decisions and international codifications (Birnie & Boyle 2002: 302). Obligation to not cause significant harm This principle also derives from the theory of limited territorial sovereignty (Eckstein 2002: 82). According to this principle, no state in an international drainage basin is allowed to use the watercourse in its territory in a way that would cause significant harm to other basin states or to their environment, including harm to human health or safety, to the use of the waters for beneficial purposes, or to the ecosystem of the watercourse

Articles V, X, XI, XXIX (2)

Not to cause significant harm

Articles 7, 10, 12, 15, 16, 17, 19, 20, 21(2), 22, 26(2), 27, 28(1), 28(3)

Articles 5, 6, 7, 15, 16, 17, 19

Articles IV, V, VII, X, XXIX (4)

Reasonable and equitable utilization

Principles

UN Watercourses Convention (1997)

International Law Association Helsinki Rules (1966)

Articles 8, 10.2, 16

Articles 10.1, 12, 13, 14, 16

International Law Association Berlin Rules (2004)

Articles 2.1, 2.3, 2.4, 3

Article 2.2c

1992 United Nations Economic Commission for Europe Water Convention

Relevant Articles

2000 Revised Southern African Development Community (SADC) Protocol on Shared Watercourse Systems (Articles 3, 4[3], 4[4]), 2002 Sava River Basin Agreement (Articles 7–9), 1995 Mekong Agreement (Articles 4–6, 26), 1996 Ganges Treaty (Articles IX, X), 1996 Mahakali Treaty (Articles 3, 7, 8, 9), 1992 Almaty Water Agreement (Preamble, Articles 1, 2, 10), 2008 Interstate Commission for Water Coordination of Central Asia (ICWC) Statute (Articles 1.5, 2.1, 2.2) 2000 Revised SADC Protocol on Shared Watercourse Systems (Articles 3[10], 4[4], 4[5]), 2002 Sava River Basin Agreement (Articles 2, 9), 1995 Mekong Agreement (Articles 3, 7, 8), 1996 Ganges Treaty (Articles IX, X), 1996 Mahakali Treaty (Articles 7, 8, 9), 1992 Almaty Water Agreement (Articles 3, 4), 2008 ICWC Statute (Articles 1.4, 2.3, 2.4, 4.1, 4.2, 5.5)

International treaties

Table 20.3. Transboundary water management principles and relevant articles of some international conventions, agreements/treaties. (Sources: Updated from Rahaman 2009a, 2009b, 2012.)

Articles XXIX (1), XXIX (2), XXXI

Articles XXIX (2), XXIX (3), XXIX (4), XXX, XXXI

Cooperation and information exchange

Notification, consultation and negotiation

Principles

International Law Association Helsinki Rules (1966)

TABLE 20.3: continued

Articles 3(5), 6 (2), 11–19, 24 (1), 26(2), 28, 30

Articles 5(2), 8, 9, 11, 12, 24(1), 25(1), 27, 28 (3), 30

UN Watercourses Convention (1997)

Articles 57, 58, 59, 60

Chapter XI, Articles 10, 11, 56, 64

International Law Association Berlin Rules (2004)

Article 10

Articles 6, 9, 11, 12, 13, 15, 16

1992 United Nations Economic Commission for Europe Water Convention

Relevant Articles

1960 Indus Waters Treaty (Articles VI–VIII), 2000 Revised SADC Protocol on Shared Watercourse Systems (Articles 2–6), 2002 Sava River Basin Agreement (Articles 3–4, 14–21), 1995 Mekong Agreement (Preamble, Articles 1, 2, 6, 9, 11, 15, 18, 24, 30 [Chapter III, Chapter IV]), 1996 Ganges Treaty (Preamble, Articles IV–VII, IX), 1996 Mahakali Treaty (Preamble, Articles 6, 9, 10), 1992 Almaty Water Agreement (Articles 5, 7, 8, 9, 10), 2008 ICWC Statute (Articles 2.7, 2.10, 2.11, 2.13, 2.16, 4.2, 5.1, 5.6, 5.7, 5.8) 1960 Indus Waters Treaty (Articles VII [2], VIII), 2000 Revised SADC Protocol on Shared Watercourse Systems (Articles 4, 5), 2002 Sava River Basin Agreement (Part 3 and 4, Article 22), 1995 Mekong Agreement (Articles 5, 10, 11, 24 [Chapter III, Chapter IV]), 1996 Ganges Treaty (Articles IV, VII), 1996 Mahakali Treaty (Articles 6, 9), 1975 Statute of the River Uruguay (Articles 7–12, 58–59), 1973 Rio de la Plata and its Maritime Boundary (Articles 17–22, 68–69), 1992 Almaty Water Agreement (Articles 7, 8, 9, 10, 11), 2008 ICWC Statute (Articles 2.12, 2.18, 2.19)

International treaties

Peaceful settlement of disputes

Principles

Articles XXVI– XXXVII

International Law Association Helsinki Rules (1966)

TABLE 20.3: continued

Article 33

UN Watercourses Convention (1997) Chapter XIV, Articles 72-73

International Law Association Berlin Rules (2004) Article 22, Annex II

1992 United Nations Economic Commission for Europe Water Convention

Relevant Articles

1960 Indus Waters Treaty (Article IX, Annexure F, G), 2000 Revised SADC Protocol on Shared Watercourse Systems (Article 7), 2002 Sava River Basin Agreement (Articles 1, 22–24, Annex II), 1995 Mekong Agreement (Articles 18.C, 24.F, 34, 35 [Chapter V]), 1996 Mahakali Treaty (Articles 9, 11), 1975 Statute of the River Uruguay (Article 60 [Chapter XV]), 1973 Rio de la Plata and its Maritime Boundary (Article 87 [Part IV]), 1992 Almaty Water Agreement (Articles 8, 9, 10, 11, 13), 2008 ICWC Statute (Articles 2.17, 4.1, 4.2, 4.4)

International treaties

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systems. This principle is widely recognized in international water and environmental law, and is often expressed as the maxim ‘sic utere tuo ut alienum non laedas’. However, questions remain regarding the definition or extent of the word ‘significant’ and how to define ‘harm’ as a ‘significant harm’. This principle is incorporated in most modern international water conventions, treaties, and agreements. It is now considered as part of the customary international law (Eckstein 2002: 82–3). PRINCIPLES OF COOPERATION AND INFORMATION EXCHANGE It is the responsibility of each riparian state on an international watercourse to cooperate and exchange data and information regarding the state of the watercourse as well as present and future planned uses along the watercourse (Birnie & Boyle 2002: 322). These principles are recommended by the 1966 Helsinki Rules (Articles XXIX and XXXI), while Articles 8 and 9 of the 1997 UN Watercourses Convention impose these requirements as obligations. These principles are incorporated in most modern international water conventions, treaties and agreements (see Table 20.3). These principles are also acknowledged by modern international environmental conventions and declarations, e.g., 1972 Stockholm Declaration of the UN Conference on Human Environment (principles 13, 22 and 24), 1992 Rio Declaration on Environment and Development (principles 7, 9, 12, 13, 17 and 27), and 1992 Convention on Biological Diversity (Articles 5 and 17). Principles of notification, consultation and negotiation Every riparian state on an international watercourse is entitled to prior notice, consultation and negotiation in cases where the proposed use by another riparian of a shared watercourse may cause serious harm to its rights or interest. These principles are generally accepted by international conventions, agreements and treaties. However, most upstream countries will naturally often contest this requirement. It is interesting to note that during the negotiation process for the 1997 UN Watercourses Convention these principles, which are included in Articles 11–18, were opposed by only three upstream riparian countries: Ethiopia (Nile Basin), Rwanda (Nile Basin) and Turkey (Tigris–Euphrates Basin) (Birnie & Boyle 2002: 319). Article 3 of the International Law Association’s Complementary rules applicable to international resources (adopted at the 62nd Conference held at Seoul in 1986) (Manner & Metsa¨lampi 1986) states that: when a basin state proposes to undertake, or to permit the undertaking of, a project that may substantially affect the interests of any co-basin state, it shall give such state or states notice of the project. The notice shall include information, data

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and specifications adequate for assessment of the effects of the project (Manner & Metsa¨lampi 1986).

These principles are incorporated in most modern international water conventions, treaties and agreements (see Table 20.3). These principles are also acknowledged by modern international environmental conventions and declarations, for example the 1992 Rio Declaration on Environment and Development (principles 18 and 19) and 1992 Convention on Biological Diversity (Article 27.1). Peaceful settlement of disputes This principle advocates that all states in an international watercourse should seek a settlement of any disputes by peaceful means in cases where the states concerned cannot reach agreement by negotiation. Most modern international water conventions, treaties and agreements endorse this principle (see Table 20.3). This principle is also acknowledged by modern international environmental conventions and declarations, for example the 1992 Rio Declaration on Environment and Development (principle 26), 1992 Convention on Biological Diversity (Article 27, Annex II). ANALYSIS OF THE 1964 FINNISH–RUSSIAN FRONTIER WATERCOURSES AGREEMENT On 24 April 1964, Finland and Russia (formerly the Union of Soviet Socialist Republics) signed this agreement concerning frontier watercourses. The agreement encompasses most of the eastern frontier of Finland, extending about 1000 km, with the exception of sea areas (FRTWC 2012). The 1964 Frontier Watercourses Agreement superseded following the conventions between Finland and Russia (Article 20): .

. .

Convention Concerning the Maintenance of River Channels and the Regulation of Fishing on Watercourses Forming Part of the Frontier between Finland and Russia, signed on 28 October 1922. Convention Regarding the Floating of Timber in Watercourses Flowing from Finland to Russia or vice versa, signed on 28 October 1922. Convention Regarding the Floating of Timber in Watercourses Flowing from Finland to USSR or Vice Versa, including the final protocol to the said convention, signed on 15 October 1933.

This section will concentrate solely on the analysis of the content of the 1964 Frontier Watercourses Agreement to find out to what extent the principles of transboundary water resources management are addressed in this agreement.

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According to Article 1, the lakes, rivers and streams that are intersected by the frontier line or along which the frontier line runs are deemed to be frontier watercourses. The Agreement simultaneously acknowledges the principle of reasonable and equitable utilization and the obligation not to cause significant harm. Articles 2, 3, 4, 8 and 15 endorse the principle of reasonable and equitable use. Articles 2, 3, 4, 5, 8, 9, 15 and 18 acknowledge the obligation not to cause harm. The Agreement also specifies the compensation requirement in case any measure causes harm or loss to the other Party. Article 2 prohibits any measure in frontier watercourses or on the banks thereof which might so alter the position, depth, level or free flow of watercourses in the territory of other Contracting Party as to cause damage or harm to the water area, to fisheries, to land or to structures or other property; which might create a danger of flooding, cause a significant loss of water, alter the main fairway or interfere with the use of the common fairway for transport or timber-floating; or which might in some other like manner be prejudicial to the public interest.

It also prohibits any measure that alters or blocks the channel or changes the course thereof, even where such measures would not have the aforementioned consequences. In a case where regulation or any measure is required in the interest of only one contracting party, any necessary works in the territory of the other contracting party shall be executed at the expense of the first-mentioned party. The provisions of Article 2 are applicable to all basins of watercourses that are part of frontier watercourses. Article 3 requires contracting parties to ensure that the main fairways of frontier watercourses are kept open for the free flow of water and for transport, timber-floating and the passage of fish. Article 4 binds both parties to ensure that frontier watercourses are not polluted by untreated industrial effluents and sewage, by waste materials from timber-floating or wastes from ships or by other substances that might cause harmful changes in the composition of water, shoaling of the watercourses, damage to the fish-stock or substantial scenic deterioration or might endanger public health or have similar harmful consequences for the population and the economy. In addition, Article 4 requires the parties to jointly decide upon the standards of quality to be set for frontier watercourses in accordance with the procedure laid down in Chapter II (Articles 6–12). It also requires the parties to cooperate in maintaining the quality of the water in frontier watercourses and in taking measures to increase the selfcleansing capacity of the frontier watercourses. If necessary, a measure that might cause pollution may only be carried out subject to the conditions specified in Chapter II of the Agreement (Article 4). Article 5 stipulates that in a case where the execution of certain measures by one contracting party causes loss or damage in the territory of the other

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contracting party, the party permitting such measures in its territory shall be liable to make reparation to the party suffering the loss or damage. In addition, it requires each party to ensure that reparation for the loss or damage is distributed to the nationals, organizations and institutions of its own country. The reparation may be made in the form of certain privileges in the watercourses by mutual agreement. Articles 15 provides guidelines to safeguard the fish-stocks and fisheries in the selected frontier watercourses that are rich in salmon and white fish (siika), i.e. Tuulomajoki (Tuloma River), Oulankajoki (Olanga River), Pistojoki (Pista River) and Leiksanjoki (Lenderka River). Before taking any measure that blocks the passage of fish in these watercourses, the contracting party concerned is required to take appropriate steps to preserve the fish-stock. According to Article 16, in the case of frontier watercourses other than those specified in Article 15, the provisions of the law in force in the territory of each contracting party shall apply to safeguarding the fishstocks and fisheries. Articles 6, 7, 8, 10, 12 and 13 endorse the principle of cooperation and information exchange. Chapter II, Articles 6–12, includes the procedural provisions of the Agreement. Article 6 establishes a joint commission on the utilization of frontier watercourses to deal with the matters related to the Agreement. The commission consists of three members from each contracting party and their deputy members. At meetings of the commissions, the chair is held alternately by a member appointed by each contracting party (Article 7). The commission is the formal body for cooperation and information exchange between the parties. It is empowered to adopt and act according to its own rules of procedure in other matters. According to Article 8, the commission is entitled, on the instructions of the parties or on its own initiative, to examine and to deal with matters relating to the utilization of frontier watercourses and the other matters referred to in Articles 2 and 4. Article 10 entitles the commission to arrange detailed technical research to obtain clarification where a matter related to any proposed measures is forwarded to it. The commission is entitled to specify the manner in which the proposed measures are to be carried out. In reaching any decision, the commission needs to take into account the provisions of the law in force in each contracting party. In addition, for any construction work or other measures in the territory of a state, permission must be obtained from the competent authorities in the respective country. For that, the commission is required to seek opinion of the said authorities before taking a decision. To facilitate the decision-making process of the commission, Article 12 requires the competent authorities of the two contracting parties to provide information and clarification and to assist the commission’s appointed persons in performing their duty according to the Agreement. Articles 9, 10, 12 and 13 acknowledge the principle of notification, consultation and negotiation. Article 9 requires that when one contracting

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party wishes to take measures in watercourses in its own territory or in the territory of other contracting party that will have consequences indicated in Articles 2 and 4, the government of other party should be notified of the said measures. The government may, within two months after receipt of the notification, make observations as it considers necessary. Both parties may agree to refer the matter to the commission for a decision or opinion. As mentioned earlier, Articles 10 and 12 require the contracting parties to assist the commission in reaching a decision on matters related to the agreement. Article 13 entitles the commission, in consultation with the competent authorities of the contracting parties, to authorize the floating of timber in frontier watercourses, to approve a set of rules governing floating, and to define the related rights and obligations. It is worth noting here that the principles of cooperation, information exchange, notification, consultation and negotiation go hand-in-hand in this Agreement and are mostly administered by the commission. Articles 8, 9, 10, 11, 12 and 19 provide guidelines for the peaceful settlement of disputes through the FRTWC. The Agreement primarily entitles the commission to settle peacefully any dispute or disagreement that may arise between the parties in managing the frontier watercourses. Article 8 provides that ‘The Commission shall, in addition, ensure that this Agreement is complied with and shall keep the state of the water in frontier watercourses under observation’. This article is clear about the role of the commission as the formal implementation body. Article 9 empowers the commission to provide a decision or opinion on a matter related to a proposed measure in the watercourses, when both parties agree to refer such a matter to the commission. According to paragraphs 3 and 4 of Article 10, in a case where a certain proposed measure may have significant effects in the territory of one of the contracting parties or where the commission fails to reach the decision according to the procedure laid in Article 10, the matter should be forwarded to the governments of the contracting parties for consideration. The governments may confirm the decision of the commission or conclude a special agreement concerning the execution of the proposed measure. According to Article 11, all decisions unanimously adopted by the commission shall be binding on both contracting parties and shall be valid and enforceable as a decision of the governmental or judicial authorities of the state concerned. Any party can express an objection to the commission’s decision within a period of two months. If a matter affects only one party, the commission may refer it to the competent authorities of the said party for decision (Article 11). Article 13 entitles the commission, in consultation of the competent authorities of the contracting parties, to authorize the floating of timber in frontier watercourses, to approve a set of rules governing floating, and to define the related rights and obligations. The relevant provisions of

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Table 20.4. Transboundary water resources management principles and relevant articles in the 1964 Frontier Watercourses Agreement between Finland and Russia. Principle Principle of equitable and reasonable utilization Obligation not to cause significant harm Principle of cooperation and information exchange Principle of notification, consultation and negotiation Peaceful settlement of disputes

Articles 2, 3, 4, 8, 15 2, 3, 4, 5, 8, 9, 15 6, 7, 8, 10, 12, 13 9, 10, 12, 13 8, 9, 10, 11, 12, 19

Articles 2, 9 and 10 shall apply to any required installations and the use of any equipment related to timber floating. According to Article 19, where there are any differences of opinion arising from the interpretation or application of the Agreement that cannot be settled by the commission, these should be forwarded to a joint board consisting of two members appointed by Finnish government and two members appointed by Russian government. If the board also fails to reach agreement, then such differences should be settled through diplomatic channels. It is important to note here that, as of today, the commission has been able to reach decisions by mutual understandings and, so far, no matter has been forwarded to the governments (FRTWC 2012, Kotkasaari 2008). Table 20.4 presents relevant articles of the Finnish–Russian Frontier Watercourses Agreement that addresses the major principles of transboundary water resources management. FINNISH–RUSSIAN TRANSBOUNDARY WATER COMMISSION The commission is formed according to Article 6 of the Agreement. Both parties appoint three members and their deputy members. The members and deputy members include representatives from central and local level administration, e.g. natural resources and the environment, foreign affairs, fisheries, the border guards and energy companies. To carry out the practical work of the commission, there are four permanent working groups according to the annual working plan: i. ii. iii. iv.

The integrated water management group. The water protection group. The frontier guards group. The chairmen’s group.

The integrated water management group takes care of all projects that are closely related to water quality and quantity in transboundary waters.

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The commission’s experts aim to minimize all the impacts arising from the projects in a holistic way. The majority of the projects are related to water regulation, flood control and hydropower production (FRWTC 2008). Energy companies’ participation is vital for the group’s work due to their involvement in hydropower generation in transboundary watercourses. The commission’s cooperation on water protection has been very successful over the years. The monitoring of major transboundary rivers started in 1966, especially in the river basins that are exposed to waste water from industrial plants and communities (FRWTC 2012, Kotkasaari 2008). These water bodies include the Vuoksi, Hiitolanjoki and Rakkolanjoki Rivers and the Saimaa Canal. For example, there are several Finnish pulp and paper mills located around the Vuoksi and Lake Saimaa areas. The industrial effluents led to serious water quality deterioration of the Vuokis River in the 1960s and 1970s. Due to the work of the commission, however, water quality of the river has been improved substantially, even though the volume of paper and pulp production has increased (for details see FRTWC 2012, Kotkasaari 2008). Significant achievements related to the commission’s working groups for the management of transboundary watercourses include the discharge rule of the Lake Saimaa and the Vuoksi River enacted in 1991, and the implementation of ‘the sustainable use of the water resources and shore areas of River Vuoksi’ project (VIVATVUOKSIA) during 2001–3 (for brief details see FWRTC 2012, Kotkasaari 2008). The inclusion of a role for border guards is a unique feature and very important for the implementation of the Agreement, as border guard authorities provide permission for the working group experts to work in and assist and supervise work in the border areas, especially in areas with no official border crossings (FRTWC 2012, Kotkasaari 2008). One good example of the work of border guards is that they have jointly compiled a list of transboundary watercourses between Finland and the former Soviet Union (now Russia) that was approved by the commission in 1971. This is noteworthy due to the fact that border guards are not normally included in the mechanisms of transboundary water-related treaty implementation in other regions, e.g. South Asia and Central Asia, even though they clearly play an important role in the peaceful management of transboundary watercourses. The annual meeting of the commission is the formal decision-making forum and all reports provided by the each group are discussed and accepted in the meeting. The reports are distributed to the relevant authorities as well as stakeholders, and are also available to the public on request. In addition, the commission also takes care of the relevant initiatives proposed by non-governmental organizations and citizens (FRTWC 2012, Kotkasaari 2008). It is quite remarkable that, even though according to Articles 10 and 19 any matter not resolved by the commission should be referred to the

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governments for consideration, as of today no matter has needed such a step to be taken. This extraordinary success of the commission shows its organizational capacity to implement the Agreement peacefully and effectively. In different parts of the world, e.g. in Central Asia and South Asia, the responsible river basin organizations are not so effective in implementing water-related agreements (see Rahaman 2012, 2009b). DISCUSSION: THE 1964 FRONTIER WATERCOURSES AGREEMENT AND SELECTED AGREEMENTS It is important to note that there is a clear distinction between institutions and organizations. According to the new institutionalism, institutions are defined as clusters of rights, rules and decision-making procedures; organizations, however, are construed as material entities that typically have personnel, offices, financial resources and often legal entities (Young 1989, 2008: 11–15). To summarize, institutions provide the rules of the games and the organizations are the players (Young 2008: 13). In addition to institutions, the motivation and interests of different actors, belief systems, and the norms and complex political, cultural and social context in which these institutions operate are collectively guiding the behaviour and commitment of the responsible actors to the implementation or non-implementation of those institutions through responsible organizations (Young 2008: 12–19). The clear difference drawn by the new institutionalism theory is that, whereas treaties, agreements and decision-making procedures set the rules of the game, these rules are implemented by the responsible organizations consisting of different actors and resources (see Rahaman 2012). In the case of Finnish–Russian Transboundary Water Cooperation, both the institutions and organizations are working properly. In the case of Central Asia, however, existing research shows that while the institutions or legal treaties included major principles of transboundary water management (Table 20.5), the organizations for the implementation of those Table 20.5. Transboundary water resources management principles and relevant Articles of Central Asian water agreements (Source: Rahaman 2012: 482). Articles Principle Reasonable and equitable utilization Not to cause significant harm Cooperation and information exchange Notification, consultation and negotiation Peaceful settlement of disputes

Almaty Water Agreement (1992)

ICWC Statue (2008)

Preamble, 1, 2, 10 1.5, 2.1, 2.2 3, 4 1.4, 2.3, 2.4, 4.1, 4.2, 5.5 5, 7, 8, 9, 10 2.7, 2.10, 2.11, 2.13, 2.16, 4.2, 5.1, 5.6, 5.7, 5.8 7, 8, 9, 10, 11 2.12, 2.18, 2.19 8, 9, 10, 11, 13 2.17, 4.1, 4.2, 4.4

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Table 20.6. Transboundary water resources management principles and relevant articles 1996 Ganges and Mahakali River treaties (South Asia)4 Articles Principle Reasonable and equitable utilization Not to cause significant harm Cooperation and information exchange Notification, consultation and negotiation Peaceful settlement of disputes

Ganges Treaty (1996)

Mahakali Treaty (1996)

IX, X IX, X Preamble, IV–VII, VIII, IX IV–VII Preamble and VII

3, 7, 8, 9 7, 8, 9 Preamble, 6, 9, 10 6, 9 9, 11

treaties are not effective (see Rahaman 2012). In the case of South Asia, the relevant treaties include major principles, albeit with some weaknesses in dispute resolution mechanisms (Table 20.6). The organizations designated to implement the treaties, however, are not effective (See Rahaman 2009b). As Table 20.3 reveals, quite often water treaties include major principles related to transboundary water resources management. Due to a lack of effective implementation organization, however, the treaties are not fully implemented. The blame-game should not target the treaties, as often happens, but should rather focus on developing effective river basin organizations to implement those treaties. In this regard, the FRTWC could be an example of effective organization for implementing the treaties at field-level. Most often, water quality and fisheries issues, which are very important for integrated water resources management, are not properly addressed in different treaties (Rahaman & Varis 2005). Despite this, the Finnish–Russian Frontier Watercourses Agreement provides emphasis on maintaining water quality (Article 4) and preserving fisheries (Articles 2, 3 and 15–17). In addition, the Finnish–Russian Water Commission is successful in implementing these water quality and fisheries related provisions of the Agreement (FRTWC 2012, Kotkasaari 2008, see Salmi et al. 2000). It is equally important to realise that not all best practices from Finland can be utilized in different rivers basins around the world due to different geographical, demographic, socioeconomic, political and institutional practicalities, for example in the Central Asian and South Asian river basins. Losing sight of this fact might lead to erroneous generalized results. In addition, the historical struggle between Finland and Russia during the 1940s, and its impact on negotiations over the Vuoksi River Basin water resources, needs to be taken into account in understanding the full context of the Finnish–Russian water cooperation. Korjonen-Kuusipuro (2011) elaborately analysed this issue. This scope of this chapter is to analyse the Finnish–Russian Transboundary Water Agreement, with a brief note about Finnish–Russian

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Water Commission. However, detailed and in-depth research on the Finnish–Russian Water Commission’s implementation and organizational mechanisms needs to be analysed further to gain a clear understanding. CONCLUSION This chapter reveals that the 1964 Frontier Watercourses Agreement incorporates several internationally recognized transboundary water resources management principles, e.g. the principle of equitable and reasonable utilization, the obligation not to cause significant harm, the principles of cooperation, information exchange, notification, consultation and the peaceful settlement of disputes (see Tables 20.3 and 20.4). In addition, implementation of these principles is ensured by the joint FRTWC created by Article 6 of the agreement. The inclusion of these principles in the 1964 Finnish–Russian agreement and subsequent successful implementation provides a rare example of best practice for peaceful management of shared water resources. This example is even more important considering the prospect of the 1997 UN Watercourses Convention entering into force in the coming years (see Table 20.1).5 In addition, the implementation of the Agreement through the FRTWC shows that an effective organization at the basin level is important for the success of any treaty. The structure of the Finnish–Russian Water Commission could be analysed further in order for the implementation mechanisms to be applied in different rivers basins in the world, especially in those river basins where existing, water-related treaties are criticized for not being properly implemented due to the weakness of the relevant river basin organizations, as was observed by previous studies in south Asia’s Ganges and Mahakali basins and in Central Asia’s Amu Darya and Syr Darya rivers basins (Rahaman 2009b, 2012). ACKNOWLEDGEMENT This chapter was funded by the Land and Water Technology Foundation (Finland) (project number 700112) and the Ministry for Foreign Affairs of Finland within the framework of the Finnish Development Cooperation (project number 310134). The methodology is derived from three earlier works (Rahaman 2009a, 2009b, 2012), and these are fully acknowledged. NOTES 1 According to Article 36(1) of the Convention, 35 instruments of ratification, approval, acceptance or accession are necessary to bring the Convention into

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force. The Convention was open for signature from 21 May 1997 until 20 May 2000 (Article 34). States or regional economic integration organizations, however, may continue to ratify, accept, approve or accede to the Convention indefinitely (Article 36). As of 22 May 2014, 35 countries had ratified or consented to be bound (acceptance, approval or accession) by the UN Watercourses Convention (Table 20.1). In between May 2010 to May 2014, 15 countries became the party to the Convention. This was much faster than the previous trend (see Salman 2007a, 2007b). The Convention entered into force on 17 August 2014. Kemijoki is shared by Finland, Russia and Norway. The area of this river basin in Norwegian territory is 27 Km2 (0.05%). ‘Joki’ means ‘River’. Paatsjoki is shared by Finland, Russia and Norway. The area of this river basin in Norwegian territory is 2 Km2 (0.01%). To read the full texts of the treaties, see ILM 1997a, 1997b. See also Rieu-Clarke, Moynihan and Magsig, 2012.

REFERENCES Anon., ‘Treaty between His Majesty’s Government of Nepal and the Government of India Concerning the Integrated Development of the Mahakali River including Sarada Barrage, Tanakpur Barrage and Pancheshwar Project, done at New Delhi, February 12, 1996’, International Legal Materials, 36 (1997a), pp. 531–46. ———, ‘Treaty between the Government of the People’s Republic of Bangladesh and the Government of India on Sharing of the Ganga/Ganges Waters at Farakka, done at New Delhi, December 12, 1996’, International Legal Materials, 36 (1997b), pp. 519–28. Birnie, P. and Boyle, A., International Law and the Environment (New York, NY: Oxford University Press, 2002). Eckstein, G., ‘Development of international water law and the UN Watercourse Convention’, in Turton, A. and Henwood, R. (eds), Hydropolitics in the Developing World: A Southern African Perspective (South Africa: African Water Issues Research Unit, 2002), pp. 81–96. Finnish–Russian Transboundary Water Commission, 2012, http://www. rajavesikomissio.fi/eng2_commission.htm (accessed 15 September 2012). Finnish Water Forum (FWF), 2012, http://www.finnishwaterforum.fi/en/finnish +water+expertise/finnish+water/ (accessed 14 September 2013). Fitzmaurice, M. and Elias, O., Watercourse Co-operation in Northern Europe: a Model for the Future (The Hague: Asser Press, 2004). ———, ‘Finnish–Swedish Frontier River Commission – Effective water cooperation’, Non-State Actors and International Law, 3 (2003), pp. 111–21. International Water Law Project, 2012, http://www.internationalwaterlaw.org/ (accessed 5 October 2012). Kotkasaari, T., ‘Transboundary Cooperation between Finland and its Neighboring Countries’, in Varis, O., Tortajada, C. and Biswas, A.K. (eds), Management of Transboundary Rivers and Lakes (Berlin: Springer, 2008), pp. 123–42.

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Kuusipuro-Korjonen, K., ‘Critical water: negotiating the Vuoksi River in 1940’, Water History 3 (2011), pp. 169–86. Manner, E.H. and Metsa¨lampi, V.-M., The Work of the International Law Association on the Law of International Water Resources (Finland: Finnish Branch of International Law Association, 1988). McCaffrey, S.C., The Law of International Watercourses, 2nd ed. (New York, NY: Oxford University Press, 2007). Ministry for Foreign Affairs, Finnish Water: Best Practices (Finland: Ministry for Foreign Affairs, 2009). Rahaman, M.M., ‘Principles of Transboundary Water Resources Management and Water-related Agreements in Central Asia: an Analysis’. International Journal of Water Resources Development 28/3 (2013), pp. 475–91. ———, ‘Principles of international water law: Creating effective transboundary water resources management’, International Journal of Sustainable Society 1/3 (2009a), pp. 207–23. ———, ‘Principles of transboundary water resources management and Ganges Treaties: an Analysis’, International Journal of Water Resources Development 25/1 (2009b), pp. 159–73. Rahaman, M.M., and Varis, O., ‘Integrated Water Resources Management: Evolution, prospects and future challenges,’ Sustainability: Science, Practice and Policy 1/1 (2005), pp. 15–21. Available at http://sspp.proquest.com/ archives/vol1iss1/0407-03.rahaman.html. Rieu-Clarke, A., Moynihan, R. and Magsig, B., UN Watercourses Convention: User’s Guide (Dundee: IHP-HELP Centre for Water Law, Policy and Science, University of Dundee, 2012). Salman, M.A.S., ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on international water law,’ Water Resources Development 23/4 (2007a), pp. 625–40. ———, ‘The United Nations Watercourses Conventions 10 years later: Why has its entry into force proven difficult?’, Water International 32/1 (2007b), pp. 1–15. Salmi, P.H., Auvinen, H. and Jurvelius, J., ‘Finnish lake fisheries and conservation of biodiversity: coexistence or conflict?’ Fisheries Management and Ecology 7 (2000), pp. 127–38. Veijalainen, N., Dubrovin, T., Marttunen, M. and Vehvila¨inen, B., ‘Climate Change Impacts on Water Resources and Lake Regulation in the Vuoksi Watershed in Finland’, Water Resources Management 24 (2010), pp. 3437–59. Young, O.R., ‘Institutions and environmental change: the scientific legacy of a decade of IDGEC research,’ in Young, O.R., King, L.A. and Schroeder, H. (eds), Institutions and Environmental Change: Principal Findings, Applications and Research Frontiers (Cambridge, MA: The MIT Press, 2008), pp. 3–45. Young, O.R. (ed.), International Cooperation: Building Regimes for Natural Resources and the Environment (New York, NY: Cornell University Press, 1989).

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Reflections and Trends on Sovereignty over Natural Resources: The Association of Southeast Asian Nations

Amado S. Tolentino Jr INTRODUCTION The concept of sovereignty is difficult, if not impossible, to fathom in an ecological frame of reference. The very thought of ecology is based on the notion of interdependence rather than independence. Various environmental problems, issues and concerns manifest at the global level, for example, climate change, sea level rise and depletion of the stratospheric ozone layer. Others are of regional dimension, for example, pollution of major rivers and ocean acidification. Some problems pose a threat to global environmental security, others to regional environmental security. As such, the environmental problems must be responded to at the spatial level at which they occur, whether inter-state or encompassing international commons. Interdependence in natural resource governance is well supported by Rio+20’s ‘The Future We Want’ which states ‘We call for holistic and integrated approaches to sustainable development that will guide humanity to live in harmony with nature and lead to efforts to restore the health and integrity of the Earth’s ecosystem’. Such an approach is evident in recent developments in public international law, i.e. international environmental law. States have adopted coordinated action strategies to resolve transboundary environmental issues connected with utilization of natural resources by resorting to the conclusion of multilateral environmental agreements which, in effect, is a way of voluntarily restricting sovereign rights. Introduction of conservation as a main theme in those agreements, treaties or conventions manifests a state’s recognition of the fundamental necessity to secure the long-term availability of those natural resources. The Ramsar Convention on Wetlands (1971) and the Convention on Biological Diversity Conservation (1992), which enjoy considerable participation by states, are good examples. Another manifestation is the United Nations (UN) Law of the Sea Convention’s (1982) adoption of the regime of ‘common heritage of mankind’ by which non-state areas are no longer freely appropriated by financially-capable developed countries for their exclusive

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use. This was immediately followed by the principle of ‘common but differentiated responsibilities’ in the UN Framework Convention on Climate Change (1992), which requires the protection of a specified environmental resource or area as a common responsibility but takes into account the differing circumstances of certain states in the discharge of such responsibilities. Similarly, principle 7 in the Rio Declaration on Environment and Development (1992) applies the concept of equity in general international law but is combined with the ‘recognition that the special needs of developing countries must be taken into account if they are to be encouraged to participate in global environmental agreements’ (Sands 1994). This chapter attempts to revisit, review and re-think the concept of permanent sovereignty over natural resources (PSNR) in a creative way as basis for future conduct and action. It draws particular attention to challenges and trends in the Association of Southeast Asian Nations (ASEAN) regarding the notion of sovereignty over natural resources. STATE SOVEREIGNTY AS A FOUNDATION OF PUBLIC INTERNATIONAL LAW Sovereignty in its widest sense means the supreme, absolute and uncontrollable power by which any independent state is governed. It connotes that i) the state’s right and power of regulating its internal affairs without foreign intervention; ii) the internally unlimited sovereignty of states is limited externally by the legal equality of other states; and iii) public international law, characterized by the absence of a superior power, is created only by consent between and among independent sovereign states (Lee 2005). Modern international law owes its special character to the emergence of the European state system and its doctrine of sovereignty. This sovereignty is shown in the state power or jurisdiction and is at once the cornerstone of public international law. Sovereignty is the basis for mutual respect and reciprocity among states but it is also sometimes invoked by them in their dealings with each other to justify the exercise of absolute and exclusive power over matters that are said to be essentially within their domestic jurisdiction. The prominent status of the principle of sovereignty was established with the Peace of Westphalia (1648) that, in the wake of religious wars, gave way to the system of sovereign states, also referred to as the Westphalian state system and which no longer recognized the supreme authority of the Pope or Roman Emperor over states. Grotius was among the first who linked the notion of sovereignty to certain principles of natural law. In his view, the state was built upon a universal human society that already exists in nature. The state is a complete association of free men, joined together for the enjoyment of rights and for their common interest. According to

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Grotius, the law of nations should maintain the law of nature and supplement that law, if appropriate, in matters of the mutual interest of nations, either through observance of customs common to many nations or through particular treaties and contracts. Rosseau, in contrast, said that the only sovereign is the people while the state is the result of a revocable contract between the people and those who exert power in the state. The basis of this ideology has had an important influence on modern state formation, both in socialist and capitalist countries. It is echoed in the popular slogan: ‘The State should serve the people and not the other way around’ (Rolling 1960). Since then, sovereignty has evolved as the ground rule of public international law. It is now commonly understood that state sovereignty does not arise from any divine origin of power or from the right of the strongest, but from delegation of power by the people to the state. The concept of exclusive jurisdiction vis-a `-vis sovereignty is gradually losing its broad scope, however, because states have come to realize that even matters that seemingly appear to be purely internal somehow affect other states. They have come to realize that it is impossible to reconcile the claim of absolute power with the rule of law; that each state governs its territory independently of external influences is contrary to the physical interdependency of territories. After all, the surface and underground waters, species of wildlife, and even the air know no boundaries or borders. Through the years, the concept of sovereignty has evolved to include not only internal or territorial sovereignty but also PSNR, external sovereignty and sovereign equality. Within its territory, the state is exclusively sovereign, referring to domestic jurisdiction and the monopoly of power over its territory and its nationals. In the Island of Palmas case (US v. The Netherlands) (Permanent Court of Arbitration (1928) 2 UN Rep. Int’l Arbitration Awards (829)), the arbitrator found that the island forms in its entirety a part of the Netherlands territory: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.’ Fundamentally, PSNR means the state can freely dispose of its natural wealth and resources within its territory. Correlatively, the principle brings about the state’s duty to properly manage its wealth and natural resources as well as to provide due care of the environment. The right of the state to pursue its own socioeconomic and environmental policies is also derived from this principle. A State cannot be subjected against its own will or to any higher authority. This, however, is subject to limitations imposed in the UN Charter and the 1970 Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, (GA Res. 2625 (XXV) 24 October 1970) which include the prohibition on the threat or use of force against other states and the principle of equal rights and self-determination of peoples. At the international level, all states are juridically equal with each state afforded

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the shield of sovereignty. In fact, the UN was established on the basis of the sovereignty of member states. Sovereign equality is reflected as the principle of the UN that says in Article 2 that ‘the organization is based on the principle of sovereign equality of all its members’. Hence, within the UN General Assembly, the doctrine means one state one vote. It does not mean equality in political or economic power; rather it means equality of legal rights irrespective of the size or power of the state. In this connection, a comment should be made that the UN Charter itself gave rise to a dilution of some aspects of sovereignty. For example: i) the allocation of permanent seats and the right of veto of the five great powers in the UN Security Council; ii) the collective security system by which the Security Council, acting under Chapter VII, can impose binding decisions on member states, even against their will; and iii) the duty of states to cooperate for the achievement of respect for human rights, socioeconomic development, etc. (Chapter IX) despite the domestic jurisdiction clause as included in Article 2, paragraph 7. THE PRINCIPLE OF PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES The growth of the principle of PSNR was closely associated with two main concerns at the time of the creation of the UN in 1945. These are: i) the economic development of developing countries; and ii) the selfdetermination of colonial peoples. Thus GA Res. 626 (VII) provides that the rights of people to use and exploit their natural wealth and resources are inherent in their sovereignty and it also refers to the right of all member states to freely use and exploit their natural wealth and resources. The first paragraph of the Declaration on Permanent Sovereignty over Natural Resources states: ‘The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.’ Chile is credited with the formulation of the phrase ‘permanent sovereignty over natural wealth and resources’ in 1952 in connection with a debate in the UN Commission on Human Rights as a right in the selfdetermination article of the draft Human Rights Covenants. That initial initiative led to the inclusion of the right of peoples to free disposal of natural resources in the UN Covenants on Human Rights (1966) and the African Charter of Human and People’s Rights (1981). The fast decolonization process whereby newly independent states cherished much their sovereignty led PSNR debates to take as their main thrust the sovereignty of states rather than the self-determination of peoples. During debates, PSNR was placed in a developmental context focusing on state discretion in the management of their natural resources under

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international law. In short, PSNR became part of the of the economic and political emancipation process of developing countries. This was the continuing trend until the adoption of the 1986 Declaration on the Right to Development, which recalls the right of peoples to exercise sovereignty over all their natural wealth and resources. This affirms the old adage that states should be instruments to serve the people and not the other way around. As UN Secretary-General Boutros-Boutros Ghali indicated (‘An Agenda for Peace’ 1992), ‘both sovereignty and self-determination are principles of great value and importance and should not be in conflict but should be complementary to and in balance with each other’. Efforts at initiative on the formulation and development of the principle culminated in the adoption of a Declaration on Permanent Sovereignty over Natural Resources in 1962. As a UN resolution, the Declaration is considered as providing evidence of customary law in so far as it identifies, specifies and confirms a rule of customary law. The Declaration embodies a consensus of opinion about what the law is and, indirectly, becomes evidence of international law. In brief, the Declaration could be placed in the category of declaratory resolution in so far as it formulated new opinio juris comunis with respect to the principle of PSNR. The principle progressively developed so that, by 1972, well-known principle 21 of the Stockholm Declaration on the Human Environment declares the sovereign right of states to exploit their own natural resources pursuant to their own environmental policies. The right is qualified by the obligation, however, not to cause any extraterritorial environmental harm. Principle 2 of the 1992 Rio Declaration on the Environment and Development restates principle 21 mentioned above and confirms that sovereignty does not only give rise to state rights but to state obligations and responsibilities as well. It can therefore be concluded that the principle of PSNR has achieved a firm status in international law specified in legally relevant instruments of varying natures and is now a widely accepted and recognized principle of international law. SOVEREIGNTY AND TRANSBOUNDARY NATURAL RESOURCES Transboundary natural resources encompass shared natural resources and resources beyond national jurisdiction – also known as the ‘global commons’ – and, in general, matters that originate under the jurisdiction of one state and affect the environment of one or more other states or the global commons. Owing to the original and traditional interpretation of ‘sovereign rights of States over their natural wealth’, resources become depleted or exhausted as each state seeks to maximize its own benefit by exploiting the resources. In addition to this, existing international law on transboundary natural resources tends to be piecemeal and uneven, dealing mostly with the issue

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of transboundary waters, e.g. the UN Economic Commission for Europe Transboundary Watercourses Convention (1992) and the Danube Convention (1992), and living resources, e.g. Whaling Convention (1946) and Antarctic Marine Living Resources Convention (1980). The international challenge for coordination and cooperation to ensure the equitable and sustainable or reasonable utilization and management of transboundary natural resources was brought forth by two international legal studies, namely the Environmental Protection and Sustainable Development Legal Principles and Recommendations adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development (1986), and the Draft International Covenant on Environment and Development of International Union for Conservation of Nature’s Commission on Environmental Law and the International Council of Environmental Law (2004). The studies expound on, among others, the principle of equitable utilization of transboundary natural resources that stipulates that states are entitled to a reasonable and equitable share in the beneficial uses of a transboundary natural resource. According to this principle, no use or category of uses is inherently superior to any other use or category of uses. Whether a certain use is reasonable or not has to be determined in the light of all relevant factors in each particular case. These factors may include, inter alia, geographic, hydrologic, climatic, biologic or ecological conditions, the existing use made of the natural resource, the economic and social needs of the States concerned, the feasibility of alternative means – including the availability of other resources – to satisfy these needs and the possibility of compensation to one or more of the States concerned as a means of adjusting conflicts among uses [...]. The essence of the principle of equitable utilization is that instead of laying down a norm with a more or less specific content, it rather prescribes a certain technique aimed at reaching an equitable result in each concrete case (UN Economic Programme (UNEP) 1986).

The principle has been applied in many multilateral environmental agreements, specifically those concerning the use of the waters of international watercourses. Examples are the Agreement Regulating the Withdrawal of Water from Lake Constance concluded between Austria, the Federal Republic of Germany and Switzerland (1966) and the Indus Waters Treaty between India and Pakistan (1960), which determined the delimitation of the rights and duties of each state over the transboundary waters. An example in Southeast Asia is the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (1995) among six riparian countries, namely China, Myanmar, Lao People’s Democratic Republic, Thailand, Cambodia and Vietnam. The Agreement, drawn in

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accordance with the principle of safeguarding sovereignty, territorial integrity and mutual benefit, created a Mekong River Commission. The two upper riparian countries, China and Myanmar, did not join the Agreement. This is is regarded as a major problem with regards to promoting true sustainable development in the basin. Beneficiary states are required to formally notify the other riparian countries of a proposed project and the project’s details. A formal functioning mechanism for coordination among riparian states, however, still has not been established. A present concern is the low water flow in the lower stream of the river, allegedly due to dam constructions in the territory of the most upstream country (Oliver 2006). Aside from treaties, the equitable utilization principle was also a recommendation in the 1972 UN Stockholm Conference on the Human Environment, which says: ‘The net benefits of hydrologic regions common to more than one national jurisdiction are to be shared equitably by the nations concerned’ (Recommendation 51). It was also a recommendation of the action plan adopted by the 1977 UN Water Conference, which declared that: ‘In relation to the use, management and development of shared water resources, national policies should take into consideration the right of each State [...] to equitably utilize such resources’ (Recommendation 91). The highest courts or arbitral tribunals of federal states like Germany, the United States, Switzerland and India have also frequently applied the principle of equitable utilization in the sharing of the waters of interstate waterways. To effectively manage what is left of the earth’s natural resources, a ‘relaxed’ concept of sovereignty was thought of through equitable sharing of transboundary natural resources and the global commons. It appears on the basis of state practice that a rule of customary international law has emerged requiring states to cooperate in the conservation and management of transboundary natural resources. What needs to be firmed up are the legal procedures, progressive scientific and management measures and methods of financial and technological sharing in consonance with the ecological approach to international law. PSNR VIS-A`-VIS THE TRANSITION FROM NATURAL RESOURCES LAW TO ENVIRONMENTAL LAW TO SUSTAINABLE DEVELOPMENT LAW From its beginning as natural resources law that was ‘use-oriented’ and designed for the maximum exploitation and development of natural resources to its transformation to law that is ‘resource-oriented’ or designed for the rationale management and conservation of natural resources in order to prevent their depletion or degradation, environmental law is fast becoming referred to as the law of sustainable development.

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The Stockholm Conference on the Human Environment (1972), the Rio Summit on Environment and Development (1992), the Johannesburg Summit on Sustainable Development (2002) and the Rio+20 Earth Summit (2012) represent an important shift from environmental protection to sustainable development as a central global agenda to achieve the future we all want. The conferences exhorted governments to establish an effective legal and regulatory framework in order to enhance national capacities to respond to the challenges of sustainable development by adjusting or fundamentally reshaping the decision-making process relating to environment and development. The call was for an integration of environmental protection measures and economic development activities. The goal of this integration is to raise the living standards while preserving environmental potential for the future. For developed and developing countries, sustainability should mean environmentally sound, socially just and economically productive development. There have been significant changes in environmental legislation since those historic environmental summits. Among the several trends noted in the evolution of environmental law vis-a `-vis sustainable development are: crystallization of environmental issues in constitutional and policy documents (e.g., right to a healthy environment; sustainable use of natural resources); more comprehensive coverage of environmental issues (e.g., biodiversity conservation; water management); establishment of environmental standards and norms (e.g., national water and air quality standards); use of economic instruments for environmental governance (e.g., tax incentives for installation of anti-pollution devices not locally available; natural resource user pay-schemes; environment funds); recognition of international environmental norms (e.g., legislative and institutional arrangements to give effect to multilateral environmental agreements; environmental impact assessment (i.e., review of environmental impact statements); effective coordination of environmental management (e.g., ministries responsible for the environment; high-level advisory councils dealing with environmental and developmental issues); efforts towards coherence of legislative framework (e.g., institutional mechanisms like inter-agency committees for cross-sectoral coordination and harmonization of policies and programmes); the establishment of mechanisms for facilitating compliance with environmental regulations and measures for more effective environmental law implementation, compliance and enforcement (e.g., environmental law compliance guidelines; enforcement procedures); and provisions for public participation and review (e.g., public consultation in the environmental impact assessment process; legal standing to sue/public interest litigation) (Wilson 2000). At the international level, multilateral environmental agreements have taken into consideration the socioeconomic dimension, which is what sustainable development is all about. An example is the UN Climate Change Convention (1992), which not only set rights and obligations for

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environmental protection but also takes into account the associated developmental concerns. Furthermore, ways have been found of developing international legal instruments that are sufficiently flexible and capable of accommodating change as the scientific evidence becomes clearer. For instance, the concept of common but differentiated responsibilities where each state can act according to its capability and capacity is embodied in the Montreal Protocol on Substances that Deplete the Ozone Layer (1987). The kind of differentiation of obligations is an important factor in the development of the law on sustainable development. In the broad field of public international law, PSNR has become a key principle in both international economic law and international environmental law. It plays an important role in the blending of the two fields of law, with the aim of promoting sustainable development. In regard specifically to resource management, it is opined that there is a need for an integrated and comprehensive approach with respect to: i) international assistance for the sustainable exploration and exploitation of natural resources; ii) poverty alleviation; iii) terms of trade of resource-endowed countries that are heavily dependent for their income on the export of natural resources; and iv) access to and transfer of environmentally sound technology to assist countries in coping with adverse environmental consequences (Schrijver 1997). In view of its strong developmental and increasingly environmental orientation, the PSNR principle serves as an important pillar of international sustainable development law. Take note that all efforts exerted in the recent past at the national level under the command-and-control regulation to protect the environment have produced a lot of legal response to curb pollution and conserve natural resources that have focused almost exclusively on pollution control laws or on resource management laws, and seldom on the interface between the two. The law in both areas concentrates on consequences but not causes; on water purification, for example, but not pollution prevention; or on saving protected areas but not on checking on soil erosion; on protecting endangered species but not on biological diversity (Futrell 1994). Worst is the regulation of the same activity by many government agencies, such as water supply by a national water authority, water pollution from industry by the environment agency, water for agricultural use by an irrigation office, etc. The law on environment and development has not been integrated into a purposeful whole. To further illustrate the expectation of the interface between environment and development in the context of the new law on sustainable development, let us take as another example of a resource threatened by overuse anywhere in the world – groundwater. In developing countries in particular, groundwater is being withdrawn for irrigation much faster than it can be recharged and whole watersheds face shortages in a short span of time. The need to control groundwater pollution and its conservation is an intricate policy and regulatory challenge about which revision of agricultural

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law could be the solution. Most often, agricultural law entangles with pollution control. Resource laws with tax measures and reform should be one plan that could lead to an integrated scheme aimed at sustainable economy and ecology. As the transition to a sustainable development law is effected, the resource management laws can be simplified and the burden of commandand-control regulation will ease. The integration of development and environmental laws can lead to increased use of other, more effective tools, such as planning, process changes for pollution prevention and economic incentives, all encouraging sustainability. This will in turn lead to better law by infusing the old environmental movement with economic realism and a commitment to social justice alongside sovereignty over natural resources. RIGHTS AND DUTIES: THE BALANCING FUNCTION OF SOVEREIGNTY As mentioned, sovereignty has served as the foundation of public international law since the Peace of Westphalia, with sovereign states as the principal actors in international relations. As can be gleaned, however, times have changed. What does the principle represent in the changing world? Current thinking maintains PSNR as a state-oriented law under which natural resources regimes coexist but barely interact. Be that as it may, the trend, as observed, is towards a legal interpretation that is humankind-oriented, under which sustainable development and environmental preservation are approached from a global perspective. At its core is cooperation aimed at implementation of the right to development, the wise management of natural resources, equitable sharing of transboundary natural resources, and the global commons for preservation for future generations. With this legal thinking and the concomitant framework, sovereignty over natural resources as the fountainhead of rights and obligations may very well continue to serve as a basic principle of public international law. Significant changes over the years have been experienced in the way state sovereignty has been delimited in scope from its meaning in the UN Charter as ‘essentially within the jurisdiction of any State’ (Article 2.7). This was brought about by, among other things, the emergence of human rights law and the progressive development of international environmental law as well as various UN Security Council resolutions on the maintenance or restoration of peace and security. Specifically: i) state sovereignty is affected by the recognition of the claims of indigenous peoples to their ancestral lands; ii) recognition of a new human right: the right to an environment that is adequate for health and conducive to development; iii) the increased environmental awareness of people all over the world brought about by felt consequences of the climate change phenomenon; and iv) regional

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economic cooperation and integration schemes like the EU and the ASEAN in Southeast Asia. For many years, the main purpose of international agreements or treaties related to PSNR was the maximum use and development of natural resources instead of rational management and conservation of natural resources in order to prevent their depletion or degradation. Rights of full disposal were granted to states on the basis of territorial sovereignty rather than a principle of sharing the world’s resources. The trend was overtaken after the 1972 UN Stockholm Conference on the Human Environment by resource-oriented multilateral environmental agreements and immediately followed by incorporation of the integrated ecosystem approach as in the Convention on Biological Diversity (1992), which enumerates state duties to properly manage its species of plants and animals that, in effect, limits a state’s exercise of jurisdiction over its natural resources. From unrestrained freedom of action, state sovereignty was interpreted in a more functional way. PSNR-related UN resolutions thereafter responded dynamically to changed insights by integrating the environmental and developmental dimensions and by elaborating policy instruments that are needed at the national and international levels to fully implement the principle. Thus, concerns for the environment form part and parcel of the sovereignty over natural resources debate. It could even be said that the present development ideology of the UN is reflected in the PSNR-related resolutions. Or, it could also be surmised that the challenge in this century is how to balance PSNR with other fundamental principles of international law, e.g. duty to observe international agreements, pursue sustainable development at national and international levels, and respect to the right to a healthy environment. With this latest development in the increasing appreciation of PSNR, is it not time to re-think and re-actualize sovereignty in order to formally recognize its functional role as demanded by changing times? Functional sovereignty as distinguished from territorial sovereignty would refer to specific uses of a resource rather than absolute and unlimited jurisdiction within a given geographical space. After all, there are now many multilateral environmental agreements incorporating the law of interdependence in the sustainable use of natural resources emphasizing that states are under a duty to cooperate with each other to promote development sustainability of the common environment. Functional sovereignty is bolstered by reference of various PSNR-related resolutions and multilateral environmental agreements to ‘mankind’, referring to areas and resources beyond the limits of national jurisdiction or the ‘global commons’. Here, mention should be made that, at the 1992 UN Conference on Environment and Development in Rio de Janeiro, proposals were made to characterize biodiversity and genetic resources as well as the world’s forests as the ‘common heritage of humankind’. Thus, the three Rio

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treaties recognize that change in the Earth’s climate and its adverse effects are a common concern of humankind (Climate Change Convention); that the conservation of biological diversity is a concern of humankind (Convention on Biological Diversity); and desertification and drought are problems of global dimensions and human beings in affected areas should be at the centre of concerns to combat desertification and to mitigate the effects of drought (Convention To Combat Desertification). Note that in these multilateral environmental agreements people, humankind and the environment, as such, are objects rather than subjects of international law. As objects, they indirectly have rights under or are beneficiaries of international law through subjects of international law, referring to the state actors in the international legal system. People, humankind and the environment are not entities endowed with rights and obligations in the international order and do not possess the capacity to take certain kinds of action in the international arena. The sovereign states are accountable for those rights and obligations springing from the way they manage their wealth of natural resources. In all of this, a trend can be perceived from the three Rio treaties about monitoring and reporting, multilateral consultation and cooperation, and sometimes even verification and on-site inspection. Throughout its evolution, the principle of PSNR has given rise to natural resource-related rights or as re-emphasizing rights emanating from other principles like territorial sovereignty. For proper analysis and dissection, let us enumerate some of those relevant state rights: i) to possess, use and freely dispose of its natural resources; ii) to control/regulate the prospecting, exploration, development, exploitation and use of natural resources; and iii) to manage and conserve natural resources in accordance with national developmental and environmental policies. Corollary thereto are state duties outside the principle of PSNR, among which are: (Schrijver 1997) i. the duty to give due care to the environment, which implies a wise use of natural resources to maintain and improve the habitat of wildlife, to protect and conserve biodiversity and to lessen the effects of deforestation, overfishing and of pollution, to name a few. This leads to the recognition that natural resource management should no longer be within the exclusive jurisdiction of individual states; ii. to exercise the correlative rights of other States to transboundary resources based on equitable utilization. Again, to cite the Convention on Biological Diversity as a an example, there is explicit reaffirmation that biological resources are subject to PSNR and likewise provisions in many paragraphs that the conservation of biodiversity is a ‘common concern of humankind’. Aside from the

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conservation of biological diversity, the Convention states as its objectives the ‘sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilization of genetic resources’, including any appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding. This demonstrates the skilful balancing of rights and responsibilities of resource-endowed countries with the interests of other countries giving rise to the principle of sharing the world’s resources. Thus, PSNR is the source of both state rights and duties over its natural resources, requiring effective management to maintain sustainability. This is also clearly reflected in UN legal instruments like the UN Stockholm Declaration (1972) and the World Charter for Nature (1982). They also flow from customary international law principles (on the use of property so as not to injure the property of another) and state responsibility emanating from binding instruments. The ASEAN Agreement on the Conservation of Nature and Natural Resources (1985) is one hard law that stands out in efforts to achieve an integrated management of nature and natural resources, though it has to be admitted that member states encounter problems in implementing the principles that have evolved in the course of time. SOVEREIGNTY AND ENVIRONMENTAL SECURITY The benefit of a changing the approach to the concept of sovereignty over natural resources extends to environmental security, as it relates to facilitating conflict resolution to prevent or resolve armed conflict or hostilities or threats therefrom between and among states or international humanitarian law. From time to time, military conflicts over water rights have been a national security issue between India and Pakistan over the Indus; Ethiopia and Egypt over the Nile; Turkey and Syria over the Euphrates; Botswana and Namibia over the Okavango; Israel and Palestine over the Jordan River. Water in these areas crosses political boundaries, producing the concomitant issue of sovereignty. The situation, however, creates a natural interdependence between the states in sharing the water resource, drawing people to work together on the aspect of water resource availability even when countries are officially at war. In reality, environmental security problems are solved not only within the confines of national boundaries. Often, they involve transborder areas, e.g. transboundary deep or shallow aquifers, surface waters such as international rivers, lakes and other shared watercourses. When the environmental harm or interference occurs within national boundaries, they give rise to internally displaced persons, as happened to victims of natural disasters like earthquakes and tsunamis. Ultimately, their

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displacement brings them across national boundaries as environmental refugees. It is a fact especially in developing countries that environmental degradation may be the cause as well as the consequence of an armed conflict. Conversely, policies that ensure sustainable habitat may remove sources of conflict (UNEP 1989). In the same way, international cooperation to alleviate environmental degradation may mollify hostilities, build confidence and facilitate conflict resolution. This is the situation between Israel and Palestine, where the people are forced to work together in a cooperative way over water use even as the peace process hits a wall. Environmental security must be recognized as an inseparable component of the concept of sovereignty to attain international security. States must recognize their joint responsibility for the protection of the transnational environment. Opportunities for the shift of political attention and material resources from the military domain to the environmental domain should be pursued, i.e. strengthening confidence through cooperation in environmental and other non-military areas. The issue of environmental security occurs whenever the issue pf sovereignty poses a threat, e.g. potential disputes over the exploitation of natural resources. A case in point is the overlapping ownership claims of the Spratly Islands in the West Philippine Sea (South China Sea) among the Philippines, Vietnam, China, Malaysia, Brunei Darussalam and Taiwan. These islands are rich in marine and mineral resources but there are more arguments in favour of cooperation to preserve/conserve the ecological wealth of the area than in tackling the sovereignty issue head-on. There are possibilities for the provision of internationally protected status to the Spratly Islands through the application of the multilateral cooperative options available. First, the Convention for the Protection of the World Cultural and Natural Heritage (1972) provides for a World Heritage List of designated protected areas nominated by state parties. Second, Article 211 (6) of Part XIII of the UN Convention on the Law of the Sea (1982) allows a ‘special area designation’ where complete vessel operational discharge prohibition applies. Third is the particularly sensitive sea areas concept developed under the auspices of the International Maritime Organization, whose guidelines for such designated areas also provide for vessel discharge prohibitions and even navigational restrictions (Blake 1977). The Australia Great Barrier Reef Park and the Sabana Camaguey Archipelago off the north coast of Cuba are two such particularly sensitive sea areas. All these provide a wide context for cooperation through functionally oriented regimes whenever there are resource or environmental implications instead of delving into the disputed territorial sovereignty issue which brings about more border disputes, the threat of internal security challenges and maritime demarcation issues. In connection therewith, the notion of eco-geographical regimes is a useful one in demarcating areas within which natural resources can be

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taken to be relatively homogenous and, consequently, the concept of sovereignty duly re-adjusted. The International Commission for the Protection of the Rhine, the two international commissions for the environmental protection and sustainable utilization of the Baltic Sea, and the comparable mechanism for cooperation among most of the littoral states are examples of this (UNEP 1989). In short, there is a continuing need for international and inter-regional cooperation that must be able to transcend the rights of sovereignty now vested in states. The principle of shared responsibility for the protection of the environment must be fully accepted. It is also a fact that politico-military and environmental security are linked in terms of opportunity costs. Political attention and material resources spent in the military sector could be used to strengthen environmental security. A revised concept of sovereignty is an opportunity to shift attention and resources from the military sector to the environment sector. It could further increase confidence and security-building measures in both the military and civilian sectors by the adoption of less offensive military postures in defence of the environment. Hopefully, the demilitarized zone between North and South Korea is headed towards this direction with the plan of making the area an international peace park for, among other things, the preservation of biodiversity found therein. Environmental security should be equitable for all states, cultures and generations. Environmental conscience, search for common gains, and multilateral cooperation should replace attitudes and policies of confrontation with the assurance of recognition of the concept of sovereignty over natural resources. The removal of confrontation between states is an important pre-condition for the removal of confrontation between humankind and the natural environment, considering the fundamental necessity of securing the long-term availability of natural resources. Indeed, the pursuit of environmental security could become a major agent of change in international affairs, promoting an international order more compatible with human needs. Common sovereignty over natural resources should be recognized and given priority in the resolution of conflicts and hostilities among states. SOVEREIGNTY OVER NATURAL RESOURCES: THE ASEAN The ASEAN was established by the ASEAN Declaration (Bangkok Declaration) on 8 August 1967. Its founding members are Indonesia, Malaysia, the Philippines, Singapore and Thailand. Brunei Darussalam joined in 1985, Vietnam in 1995, Lao People’s Democratic Republic and Mayanmar in 1997 and Cambodia in 1999. The Bangkok Declaration states as one of its aims, the acceleration of economic growth and promotion of matters of common interest, inter alia, economic fields. Although no mention was

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made of cooperation on environmental concerns, world events in the area of environment culminating with the 1972 Stockholm Declaration, which called for regional cooperation on the environment, led to ASEAN’s sub-regional environment programme starting in 1978. An ASEAN Charter entered into force on 15 December 2009. The Charter bestowed a legal personality upon ASEAN that, for the past 42 years, has operated on a coalition of nations born out of the Bangkok Declaration previously mentioned. To realize the purposes of the Charter, ASEAN leaders adopted a roadmap for an ASEAN community by 2015 consisting of three community blueprints – political, socio-cultural and economic security. This institutional framework will hopefully enable ASEAN to deal more effectively with transboundary environmental issues. The Charter establishes a different regime for global environmental issues on the one hand, and transboundary challenges on the other. The former falls under the socio-cultural community pillar, while transboundary environmental challenges are generally dealt with under the political security community pillar. The non-traditional security approach applies to transboundary environmental challenges. It is based on the idea of comprehensive security, which refers to those security threats that fall outside the traditional definition of security involving military intervention. Non-traditional security challenges include issues such as drug trafficking, transnational crimes (e.g., terrorism), transboundary challenges such as pandemics, and climate change disasters that spill over national boundaries. Under the political security community pillar, ASEAN is required to respond to non-traditional security issues effectively and in a timely manner in accordance with the principle of comprehensive security. Illustrative of ASEAN cooperation on the principle of sovereignty over natural resources is the ASEAN response to the recurring Indonesian haze, which has affected the neighbouring countries – specifically Singapore, Malaysia and southern Thailand since 1982 – a result of land-clearing fires for palm plantations and the practice of swidden agriculture particularly on peatlands in Indonesia. Only in 2002 did ASEAN formulate a hard law instrument on the issue – the ASEAN Agreement on Transboundary Haze Pollution (ATHP). Although generally applicable to all ASEAN states, it was formulated to target the Indonesian haze. It took effect in November 2003 with the ratification by nine member states. Indonesia has yet to ratify, which rendered the Agreement essentially ineffective. In October 2006, Singapore decided to raise the issue at the UN General Assembly, a permissible move under Article 2 of ATHP, which specifically states that the Agreement’s objective is to prevent and monitor transboundary haze pollution through concerted national efforts and intensified regional and international cooperation. Indonesia, however, invoked the principle of sovereignty and non-interference in domestic affairs. (At this point, a word must be said about the ASEAN way of doing things. Cooperation is done through consensus. There is no ASEAN parliament to issue laws, regulations

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and directives to its members and no enforcement agencies. Non-interference in the domestic affairs of a member state is the rule of conduct) This controversy illustrates the complex political and economic dimensions of the haze problem as well as the conflict between national interests and regional interests confronting the ASEAN. The successful adoption and ratification of ATHP attest to ASEAN’s growing stature as a transnational environmental lawmaker. At the same time, however, the controversy demonstrates the obstacles in ASEAN’s path towards environmental regulatory effectiveness. Be that as it may, the choice to house the ATHP under the socio-cultural community blueprint rather than the political security one (which would have allowed it to invoke the nontraditional security approach) reveals ASEANs need for circumspection in areas of high political sensitivity. Yet, taking a deferential approach to the internal affairs of member states may lead to violation of principle 7 of the Rio Declaration, which provides that all states have a common responsibility to protect the integrity of the Earth’s ecosystems (Koh 2012). Perhaps, it is time for ASEAN to take a strong stand that the principle of sovereignty be modified in the context of environmental law. Far from undermining state sovereignty, enhanced cooperation in the area of environment will strengthen states’ sustainable development. By adopting a flexible engagement approach to transboundary environmental issues qualifying under the political security pillar, ASEAN member states could discuss complex problems such as the Indonesian haze without being accused of interfering with the internal affairs of the country. As suggested, the haze problem could be elevated from the sociocultural blueprint to the non-traditional approach under the ASEAN political security blueprint because the two are mutually re-enforcing. But even that is not enough. The traditional ASEAN way of non-interference must be re-adjusted to tackle growing environmental threats. ASEAN members can no longer afford a non-committal stance and avoid passing judgment on events in a member country simply on the grounds of noninterference. ASEAN must play a more proactive role, especially in instances when regional peace is involved. In fact, the political security pillar does revise the ASEAN way in that it requires a political process to deal with such transboundary challenges. Flexible engagement is not yet an accepted principle in the ASEAN, but its application to transboundary environmental issues remains relevant. Flexible engagement is an attempt to delimit the range of situations in which individual member states would be justified in appealing to non-interference to ward off outside involvement in their internal affairs. As serious threats to sustainable development and human security expand, transboundary environmental issues would be classified as beyond the scope of ‘internal affairs’ and would be subject to regional governance (despite sovereignty). It is interesting to compare ASEANs response to the haze issue with the threat posed by zoonotic diseases, e.g. severe acute respiratory syndrome

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(SARS), avian flu and swine flu (H1N1) during the past seven years, which has raised not only issues of human security but also challenged animal health protection, the protection of biodiversity and ecosystems, and the pursuit of sustainable development, i.e. sustainability of the chain of animal food production. The threat of a pandemic drove ASEAN to act with prompt response using no fewer than 25 ASEAN soft law instruments. ASEAN’s response to zoonotic diseases was possibly more successful as a result of the threat of pandemic, not only in the region but also in many other parts of the world. The inclusion of communicable diseases under the socio-cultural community blueprint may also have given ASEAN more freedom to act than it had with regard to the haze problem. Under the socio-cultural blueprint, ASEAN can ‘promote multi-sectoral coordination and planning on Pandemic Preparedness and Response at the regional level including development of a regional Multi-Sectoral Pandemic Preparedness and Response Plan’. When a pandemic occurs, the issue can be elevated to the non-traditional security approach under the ASEAN political-security blueprint. The foregoing ASEAN experience with the haze and zoonotic diseases demonstrates the right of states, within the framework of other principles and rules of international law, to manage natural resources pursuant to their national developmental and environmental policies. At the same time, it confirms that a state’s sovereignty over its natural resources involves a number of duties, among them: i) the duty to ensure benefits for the whole population and not to compromise the rights of future generations; and ii) the duty to prevent harm to the environment of neighbouring states or of areas beyond national jurisdiction. This implies a prudent use of natural resources not only to protect biodiversity but also to prevent and control pollution. Gradually, it has become recognized that under international law, natural resources management is no longer exclusively within the jurisdiction of individual states. Emerging environmental challenges add new dimensions to transboundary environmental issues such as climate change mitigation, food and water security and disaster management. No country can deal with these challenges alone. States must continually identify common priorities to deal with transboundary environmental issues. It must enhance coordination among states and even challenge the dichotomy between regional and national interests, re-examining principles of sovereignty and noninterference in the context of environmental challenges. ASEAN’s responses in this regard are the on-going cooperative efforts to promote conservation activities. Examples of such responses are the ‘Heart of Borneo’ initiative to create a transboundary biodiversity sanctuary straddling Malaysia, Brunei Darussalam and Indonesia against illegal logging and clearing land for oil plantations (Heart of Borneo available at http://heartoborneo.org) and the ASEAN Turtle Conservation and Protection Memorandum of Understanding between the Philippines and

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Malaysia to jointly manage, protect and conserve all species of turtles and their habitats in the region through unified management, conservation and protection strategies. (Memorandum of Understanding on ASEAN Sea Turtle Conservation and Protection, available at http://www.aseansec.org/ 6185.htm) Another example is the Sulu Sulawesi Marine Ecoregion, which is part of the ASEAN Marine Heritage Areas, about which conservation plans for joint implementation are in place to protect and conserve the coral triangle bounded by the Philippines, Malaysia and Indonesia. (WWF International Coral Initiative, Sulu Sulawesi Marine Ecoregion, available at http://assests.panda.org/downloads/wwfasme2pdf) Such attitude at the level of regional cooperation is also evident at the way some ASEAN riparian countries cooperate with China, also a riparian country, in relation to the largest international river within Southeast Asia: the Mekong. There is now a proliferation of regional frameworks and mechanisms to promote the development of the riparian countries. For instance, the Quadripartite Economic Cooperation Initiative was launched by Thailand and China in 1993 to promote economic cooperation among Mekong’s upper riparian countries (China, Lao People’s Democratic Republic, Myanmar and Thailand) through transport-related projects. Another example is the ASEAN Mekong Basin Development Cooperation launched in 1996, a larger framework that encompasses riparian and non-riparian countries. It aims to stimulate economic cooperation by addressing the economic disparity between long-time ASEAN countries and the later ASEAN members Cambodia, Lao PDR, Myanmar and Vietnam (Turner 2005). In addition, in 2006 the Asian Development Bank supported improved environmental management in the Greater Mekong sub-region through its Core Environment Program. The subregion is composed of Cambodia, Lao People’s Democratic Republic, Myanmar, China (its southern region), Thailand and Vietnam. The Program aims to mainstream environmental considerations into the transport, energy, tourism and agricultural sectors of the sub-region’s economic cooperation programme. It promotes the application of development planning tools that integrate environment into sustainable development (ACB 2010). The mechanisms in place show that while China opted not to be a member of the Mekong River Commission set up in 1995, it can be enticed to cooperate with other riparian countries through some regional development frameworks. The above-mentioned mechanisms have China as major actor, which draws China out of its self-imposed isolation as far as the Mekong River is concerned. China is now a ‘dialogue partner’ of ASEAN and sits at the negotiating table to discuss the regional development of the Mekong riparian countries. It is now safe to assume that riparian countries in the lower Mekong River Basin (Cambodia, Lao People’s Democratic Republic, Thailand and Vietnam) have functioning communication channels with China through various mechanisms of cooperation. There are, however, environmental concerns in the ASEAN that present internal security dilemmas that are becoming external sovereignty or

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international security issues. These include environmental security threats, potential dispute over the exploitation of natural resources in the West Philippine Sea (South China Sea) and the Philippine Exclusive Economic Zone, i.e. the Spratly Islands and the Scarborough Shoal, which have raised resource and strategic issues. While not delving into the disputed territorial sovereignty issue, there is a strong argument in favour of cooperation among the claimant states (Philippines, Vietnam, Taiwan, Malaysia, Brunei Darussalam and China) to preserve the ecological wealth of the Spratlys. Within ASEAN, there is the possibility of easing the situation through the two working groups on resource assessment and marine scientific research established under the auspices of the Indonesia-inspired multilateral workshop series on managing potential conflicts in the West Philippine Sea (South China Sea). Cooperation between states in transfrontier issues only occurs, however, when sovereignty issues do not pose a threat. Unfortunately, the territorial sovereignty issue is now at the core of the disputed islands in the West Philippine Sea (South China Sea). China essentially claims historical right on the whole of the strategic waterway, which is believed to be rich in hydrocarbons and straddles strategic shipping lanes vital to global trade. The Philippines, Vietnam, Malaysia, Brunei Darussalam and Taiwan also have territorial claims in the Spratly Islands. Apart from the Spratlys, the Scarborough Shoal – which holds fuel and food resources – is also disputed. While it is well within the Exclusive Economic Zone of the Philippines, China claims it too based on historical right. The territorial sovereignty issue led to a breakdown at the 2012 ASEAN Summit in Phnom Penh (Cambodia), when it failed to issue a traditional Declaration or Statement at the conclusion of the annual meeting. It left in tatters the hoped-for maritime code of conduct between ASEAN and China to help manage the dispute over the resourcerich area. Attempts finally stalled over host Cambodia’s unwillingness to accept any mention of Scarborough Shoal, site of the recent naval stand-off between China and the Philippines. This development at the ASEAN meeting is interpreted by some political scientists as the first major breach in the ASEAN region’s autonomy, especially if the alleged clout of China over Cambodia is to be believed. ASEAN has a self-styled reputation for harmony and polite debate and has long waved off criticisms of its bland statements and lack of strong joint policies by citing the ‘ASEAN way’, its method of discreet, non-conflictual cooperation. The question now is how can ASEAN play a central role if it does not even have a common position about the disputed areas? Also greatly affected is the Declaration of Conduct in the South China Sea (2002) signed by China and the ASEAN countries to deal with the territorial dispute peacefully about which specific and binding guidelines have yet to be approved. The same is true with a proposed code of conduct being pushed by the Philippines and Vietnam that could provide guidelines for joint exploration ventures in the marine and mineral-rich surrounding waters of the Spratlys. Without a binding code of conduct, none

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of the claimants can explore for resources in the disputed waters. Joint exploration remains an aspiration until certain agreements can be reached with other claimant countries. This ASEAN experience in the ASEAN way of cooperation also manifests the possibility that intrinsic ‘environmental’ concerns (e.g. reduction of water and air quality, biodiversity loss, global warming due to greenhouse gas emissions and pollution of pristine areas) rather than ‘natural resource’ concerns do not figure prominently within the strategic perceptions of some states, either externally or internally. Be that as it may, ASEAN should use its rich history of cooperation among States to build [...] environmental cooperation [...].This would enhance respect for sovereignty not undermine it; it can be argued that the inability to avert an environmental disaster is a greater loss of sovereign authority than cooperation in agreed programs to control the harm. ASEAN’s deferential approach to other’s domestic affairs can inadvertently lead to violations of Principle 21, in which all States acknowledge that each must act so as not to harm the environment of each other. (Koh 2002)

SOVEREIGNTY OVER NATURAL RESOURCES AT RIO+20 The final document outcome of Rio+20, ‘The Future We Want’, is replete with paragraphs related to sovereignty over natural resources. Among them: 28. We reaffirm that in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action against the territorial integrity or political independence of any State. 58. We affirm that green economy policies in the context of sustainable development and poverty eradication should: (a) be consistent with international law; (b) Respect each country’s national sovereignty over their natural resources taking into account its national circumstances, objectives, responsibilities, priorities and policy space with regard to the three dimensions of sustainable development; [...] (h) Not constitute as a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade [...] and ensure that environmental measures addressing transboundary or global environmental problems, as far as possible, are based on an international consensus. 121. We reaffirm our commitments regarding the human right to safe drinking water and sanitation, to be progressively realized for our populations with full respect for national sovereignty. ‘The Future We Want’ also, however, contains paragraphs about which a trend could be deduced leading to a stimulating way for a re-interpretation of PSNR. Among them:

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10. We acknowledge that democracy, good governance and the rule of law at the national and international levels as well as an enabling environment are essential for sustainable development, including sustained and inclusive economic growth, social development, environmental protection and the eradication of poverty and hunger. We reaffirm that to achieve our sustainable development goals we need institutions at all levels that are effective, transparent, accountable and democratic. 39. We recognize that planet Earth and its ecosystems are our home and that ‘Mother Earth’ is a common expression in a number of countries and regions, and we note that some countries recognize the rights of nature in the context of the promotion of sustainable development. We are convinced that in order to achieve a balance among the economic, social and environmental needs of present and future generations, it is necessary to promote harmony with nature. Rio+20 also had a World Congress on Justice, Governance and Law for Environmental Sustainability attended by chief justices, attorneys general, the auditor general, and other legal experts to provide inputs to the UN conference. Among those tackled at the Congress was effective governance at regional and international levels, including the role of cross-border cooperation in environmental matters. Notable is the Congress observation that many environmental issues have shifted from the national domain to the international arena, requiring better means and ways to deal with transboundary resource management matters – as in shared rivers or waterways and underground aquifers – on a proactive basis. In this regard, human resource capacities and skills can be strengthened by resort to common methodologies for inspection and auditing to ensure accountability and proactive and preventive action. Indeed, the series of non-binding UN reports and documents on nature conservation and environmental protection since 1972 have not differed much in the pronouncements of Rio+20. They all acknowledge PSNR as the source of a state’s freedom to manage its natural resources, which is also the source of duties and responsibilities requiring careful management and accountability. CONCLUSION There is much discourse nowadays on sovereignty vis-a `-vis natural resources and economic growth, natural resources and conflict and natural resource governance mechanisms; proof that the twenty-first century marks an increasing and continuing appreciation of the concept of sovereignty over natural resources. Looking back, the decades after the 1972 UN Stockholm Conference on the Human Environment could well be described as decades of clarifying and updating the earlier economic and

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political concept of sovereignty and integrating it into the present legal thinking – a dynamic response to changed circumstances and insights in the changing world. Those were the years of growing awareness of environmental degradation alongside evolution of the newly-emerged field of international environmental law. While developments in national environmental legislation focused on state obligations to neighbouring states, treaty law began to impose duties concerning management of natural resources so as to bring about sustainable production and consumption in the interest not only of local people but of other states and humankind including the future generations. Gradually, states began to consider and even accept replacement of the concept of absolute sovereignty with the concept of equitable and sustainable utilization of resources. This was the justification for the Law on the Non-Navigational Uses of International Watercourses (1997) and expanded to the concept of common concern of humankind recognized by the Climate Change Convention and the Convention on Biological Diversity. All of these mean that permanent sovereignty must be exercised in such a way as to prevent significant harm to the environment of other states and of areas beyond national jurisdiction and to ensure that natural resources management is no longer exclusively within the domestic jurisdiction of individual states. Furthermore, natural resource sovereignty is a source of obligations and responsibilities requiring careful management and imposing accountability at national and international levels. This way, permanent sovereignty blends well with international environmental law, international economic law and human rights law to attain environmental sustainability. To be more specific, a trend can be discerned that matters which are essentially within the domestic jurisdiction of any state (Article 2.7 of the UN Charter) is becoming increasingly qualified. Changes in the interpretation of PSNR are going along well with the continuing evolution of international law. While some states consider PSNR within state-oriented law under which national resource regimes coexist, it cannot be helped but that the principle interacts and coexists with other concerns in a more functional way. Thus, international environmental law has become humankind-oriented, under which sustainable development and environmental preservation are approached from a global perspective and cooperation aims to implement everybody’s right to development, equitable sharing of transboundary natural resources and the global commons for the present and succeeding generations. The general principle that ensues from all these concepts is that the Earth’s biosphere is the common heritage of all life on Earth, of which humanity is the steward. Within this framework, PSNR – as reaffirmed in Rio+20 – can continue to serve as a basic principle. Sadly, over at ASEAN this cannot be the case at the moment because of the overriding and paramount interest in territorial sovereignty.

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As Louis Henkin advocates in his essay ‘The Mythology of Sovereignty’: it is time to bring sovereignty down to earth, cut it down to size, discard its own rhetoric, to examine, analyze, reconceive the concept and break out its normative content; to repackage it, even rename it, and slowly ease the term out of polite language in international relations, particularly in Law (Henkin 1994).

REFERENCES ACB, ASEAN Biodiversty Outlook (Los Banos, Philippines: ASEAN Centre for Biodiversity, 2010). Blake G., Sien C.L., Warr C.G., Pratt M., Schofield C. (eds), International Boundaries and International Security: Frameworks for Regional Cooperation (London: Kluwer Law International, 1997). Caponera D., Principles of Water Law and Administration (Balkem, Rotterdam: Brokfield, 1992). Ginther K., Denters E., de Waart P. (eds), Sustainable Development and Good Governance (Dordrecht: Martinus Nijhoff Publishers, 1995). Futrell W., The Transition to Sustainable Development Law (Washington DC, WA: Environmental Law Institute, 1994). Henkin L., The Mythology of Sovereignty in R St J in Honour of Wang Tiaja (Dordrecht: Martinus Nijhoff Publishers, 1994). International Union for Conservation of Nature, Draft International Covenant on Environment and Development, Third Edition: Updated Text. Prepared in cooperation with the International Council of Environmental Law (Gland: IUCN, 2011). Kiss A. and Shelton D., International Environmental Law (London: Transnational Publishers, Graham and Trotman, 1991). Koh, K.L. and Robinson N., ‘Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from ‘‘ASEAN Way’’’, Singapore Journal of International and Comparative Law 6 (2002), pp. 640–82. ———, Transboundary and Global Environmental Issues: The Role of ASEAN in Transnational Environmental Law (Cambridge: Cambridge University Press, 2012). Lammers J.G., Pollution and International Watercourses (The Hague: Martinus Nijhoff Publishers, 1984). Lee L.F., Sovereignty Over, Ownership of, and Access to Natural Resources in Environmental Laws and their Enforcement’, in Environmental Laws and their Enforcement, Vol. 2 (Encyclopaedia of Life Support Systems, 2005). Oliver R., Moore P., Lazarus K., Mekong Region Water Resources Decision-making: National Policy and Legal Frameworks vis-a-vis World Commission on Dams Strategic Priorities (Bangkok and Gland: International Union for Conservation of Nature, 2006). Palme O., et al., A Programme for Disarmament: the Report of the Independent Commission on Disarmament and Security Issues (London: Pan Books, 1982). Rolling, B.V.A., International Law in an Expanded World (Amsterdam, 1960).

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Sands P., Greening of International Law (1994). Schrijver N., Sovereignty over Natural Resources: Balancing Rights and Duties (London: Cambridge University Press, 1997). Smith S., ‘The Impact of Globalization on Sovereignty and the Environment’, Can.U.S.L.J. 24 (1998) 263. Taylor P., An Ecological Approach to International Law (London: Routledge, 1998). Turner J. and Otsuka K., Promoting Sustainable River Basin Governance (Chiba: Institute of Developing Economies, 2005). United Nations, The Future We Want. Report of the Rio+20 UN Conference on Sustainable Development, Rio de Janeiro, 2012. ———, Report of the World Congress on Justice, Governance and Law for Environmental Sustainability, UNEP World Congress Bulletin 203/1 (2012). UNDP/UNESCO, Environmental Governance for Sustainable Development in Asia and the Pacific (New York, NY: UNDP/UNESCO, 2002). UN Economic Programme, Environmental Protection and Sustainable Development: Legal Principles and Recommendations adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development (London: Graham and Trotman/Martinus Nijhoff, 1986). ———, Environmental Security: A Report Contributing to the Concept of Comprehensive International Security (Nairobi: International Peace Research Institute, Oslo and UNEP Programme on Military Activities and the Human Environment, 1989). Wilson P., et al., Emerging Trends in National Environmental Legislation in Developing Countries (Nairobi: UN Economic Programme, 2000). Wouters, P. (ed.), International Water Law. Selected Writings of Professor Charles B. Bourne (London: Kluwer Law International, 1978).

22

Australian Water Law History: The Move from Introspective State Sovereignty to a National Interest Approach and the Influence of International Law

Jennifer McKay INTRODUCTION There are two types of water sovereignty in Australia. The first concerns statebased sovereignty, and the socio-legal history of this will be outlined. The second is national sovereignty, and this has two aspects: the first includes the national accreditation of state-based water use regimes under the 2007 Water Act and the legislative instrument of the Murray Darling Basin Plan, which impacts on domestic freshwater use matters; the second aspect of national sovereignty concerns the regulation of foreign ownership of freshwater, which is a national competency under the Foreign Investment and Takeovers Act 1975. This chapter will discuss these types of sovereignty. DOMESTIC STATE-BASED SOVEREIGNTY OVER FRESHWATER USE The ownership and then the use and storage of freshwater is vital in Australia, which is a land of old soils and ‘droughts and flooding rains’ (McKellar 1908). There have been several approaches to water management in drought and rain in the (various successive) political regimes existing in colonial Australia from 1788 to 1901. Our constitution in 1901 left power over water management with the states under a political settlement expressed in Section 100. The states are therefore sovereign in Australian water law and their various use regimes were promulgated through statebased water management laws. These regimes were not consistent between the states. The aim of all colonial and state regimes was to spread water around to maximize economic growth, and this entailed unpicking the operation of the riparian doctrines (McKay 2003, 2005, 2010, 2011b). The Australian states created an administrative allocation system for surface and groundwater and vested water in the Crown in right. These regimes

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imparted their legacy in the federation era from 1901 to the present. A federation in 1901, all seven states kept sovereignty over water as a condition of the federation through Section 100 of the Constitution. The period from federation to 1990 was characterized by considerable expenditure on works by all governments and an agreement on the River Murray, the key irrigation food-bowl trans-state river (see Figure 22.1). Each state created regional irrigation schemes, such as Murrumbidgee and the Murray irrigation area, Renmark and others, with a state-funded infrastructure of canals and dams. Many of these took inspiration from US approaches. In the past 20 years or so, several federal initiatives and use of federal powers have created a different political settlement process. This is one that included modern considerations of environmental degradation and the concept of ecologically sustainable development (ESD). In 2007, the federal government enacted a modern water law, the 2007 Water Act, but only for the Murray Darling Basin area. This relies explicitly on international agreements for environmental protection and biodiversity protection (see the next section). The Act requires the four relevant states produce a largescale plan for water use to ensure biodiversity protection and sustainable diversion of water. There have been three attempts at passing the plan in

Figure 22.1.

Map of the Murray Darling River Basin area.

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the federal government, after which it becomes a legislative instrument under the 2007 Water Act. This means it becomes part of national law and hence overrides inconsistent state laws. The huge Murray Darling Basin plan will reduce the amount of water available for consumptive use (based on best available science and considering socioeconomic issues) to a figure of 3,200 GL. (Murray Darling Basin Authority plan 2013) Many farmers have been left with less water than they had come to rely on, and have had to make several other concessions, such as agreeing to store less in farm dams and also to variations in use patterns. They complained in 2010 and the plan was revised (The Age 2010). There are many stalled regional plans, but also some examples of effective implementation in the rural environment. The research we have conducted has suggested that key local policy entrepreneurs are essential to the success of such radical changes. The large-scale basin plan was adopted in November 2012 by the federal water minister after three iterations over a two-year period. The disputes concerned increasing water left in the river while maintaining or improving social and economic outcomes. This chapter reviews the sovereignty aspects of water use in the Australian Federation and the use of concepts such as ESD in state and federal laws. It will chart how Australia up to 1980 or so evolved its own approach based on local political issues. Some of these processes are good case studies of relevance to international law, and the development of the concept of sustainable development in particular. It is expected that the period post 2013 and the implementation of the Murray Darling Basin plan will provide further examples of relevance to international law. The chapter then moves onto foreign ownership of freshwater and presents commentary from Australian citizens on the sensitivity of this issue. It reviews the commentaries and the operations of the foreign investment review board and finds that its activities under the Foreign Investment and Takeovers Act 1975 suggest the administration of the act is at odds with community sentiment. There is some fear that sovereignty over freshwater is being lost as parcels of agricultural land and water, which is separated from land under the 1994 reforms, are being sold to foreign nationals. Sovereignty under Section 100 There are three aspects of sovereignty considered in this chapter: statebased sovereignty under Section 100 and hence state-based use regimes, the impact of sovereignty on the above via a national scheme under the 2007 Water Act, and sovereignty over freshwater assets at a national level by the regulation (or non-regulation) of direct foreign ownership of water and land resources. In Australia, sovereignty over freshwater in surface water courses is protected by Section 100 and is left with the states (Quick & Garran 1976). The states suffered a diminution of their colonial powers at

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federation level. The parliamentary debates at the time and Section 100 explicitly refer to surface water, the notion of conservation really referring to holding back water in dams. According to Section 100 of the Australian Constitution: The Commonwealth shall not by any law or regulation of trade or commerce, abridge the right of the State or the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

The power of trade and commerce was one limit on this power and the other was the inherent navigation power. The supremacy of federal navigation power was subordinated to the reasonable use of water by states for irrigation by this Section. In practice, over-use by the states of the waters rendered the river unable to be used for navigation and there are several photos of marooned paddle stammers dating from 1902. The Commonwealth could therefore not in law restrain the use of water by a state or its citizens, even if this use destroyed navigability. The Section did not and does not preserve the pre-existing rights of the states in their entirety, but allows the Commonwealth to abridge the rights of a state or it citizens to unreasonable use of water for conservation or irrigation. Prior to the Federation, each colony or the residents of that colony had an absolute right to use the water flowing through the colony to the exclusion of other colonials. Quick and Garran (Ibid) state that there is no such item as riparian law between independent states, and hence the states developed introspective freshwater use regimes without considering each other. Quick and Garran cite the Constitution Convention Debates and also go on to say that there was no principle of international law that limited the rights of a state or its citizens to the use of waters flowing through the state (Ibid: 888). This was true at the time of the Constitution in 1901, but it is arguable now that the modern notion of equitable and reasonable utilization could play a role as a principle of international law (McCaffrey 2010). Nevertheless, such principles were not employed at all and the states behaved introspectively and often over-allocated water to growers. For this reason, there were some agreements put in place for water to be shared between the upper and lower states (the first Murray Darling Basin Acts). These agreements were included to ensure adequate water supplies for Adelaide and other rural towns. The notable gap in the early Australian agreements was a duty to cooperate. Instead, fixed quantifiable volumes of water were allocated to South Australia and penalties were to be paid for their non-achievement (McKay 2011). These cartoons at the time of federation (see Figure 22.2) show the political nature of the agreements over the Murray River, with the upstream states of New South Wales and Victoria getting the majority of water. The environment was not considered in any of these debates about freshwater use by the states.

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Groundwater and the several large aquifer systems could not possibly have been known of at the time of federation, but later sharing arrangements were worked out over the Great Artesian Basin and the aquifer between South Australia and Victoria (McKay 2010). These work on an assumption of the shared interest in/fair use of the aquifer. Within the colonies and states, however, the notion of riparian rights between users existed. This was gradually abolished and replaced with an administrative water allocation system for surface water. For example, in 1886 the first irrigation act of Victoria created laws to control rivers and regulate riparian rights to achieve a different allocation system that went beyond the riparian owners. All of the states did this and changed the rights of riparian proprietors to extend rights to those without river frontages. All waters in each state were vested in the Crown in the right of the state groundwater. Hence the notion of introspective legal right emerged. Reasonable use Section 100 The (rural) citizen is given a specific mention in Section 100, which caters for private water systems. The citizen in Australian water history has been given several opportunities by governments to participate in governmentfunded irrigation channel systems and private diverters have been given licences and vast opportunities to use both surface and groundwater. Rural

Figure 22.2. Cartoons published at the time the Federation was created highlight the political nature of agreements over the Murray River (cartoons courtesy of the State library of South Australia).

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citizens are those most put out by the water planning processes and by the Murray Darling Basin plan. Since the 1950s the quantity of water diverted has increased substantially and there has been an increasing level of community concern about the long-term impact on river health. An audit commissioned by the Murray Darling Basin Commission (MDBC) in 1995 showed that if the increase in the volume of water diversions continued, there would be increased river health problems, a reduction in the security of supply, and reduced reliability during periods of long droughts. The water diversions occurred under the law of each state and all had different conditions and tended toward permissive allocations with little reference to the notion of sustainable use. The dominant paradigm was use the water to find gold. NATIONAL INTERVENTION TO MODIFY STATE SOVEREIGNTY LEADING UP TO THE 2007 WATER ACT In the light of the Audit Report of 1995, (Murray Darling Basin Commission 1995) an interim cap or limit was imposed in June 1995 that limited the amount of water able to be diverted for consumptive uses to those being diverted as at 30 June 1994. This was applied only in the Murray Darling Basin. There was an independent review of equity issues and this cap was made permanent for New South Wales, Victoria and South Australia from 1 July 1997. The cap was described as ‘the most monumental decision in resource management ever undertaken in Australia. Yet environmental deterioration continues to threaten the sustainability of the nation’s most important water resource.’ So this was local settlement of an environmental issue achieved through grandfathering existing state policies. It encouraged cooperation but did not make this a duty; it rather fixed on existing takes and hence reinforced the introspectivity of each state and the political nature of the decisions. It was acknowledged at the time that the cap was the first step toward striking the balance between irrigation and other consumptive uses and in-stream uses, but the cap may not stop environmental degradation. There were arguments that the cap level of diversion is too high. Each state was required to develop a model and to ensure that diversions did not exceed that figure. The MDBC has used these models to calculate the annual diversion targets for specific regions of each state and, within two months of the end of the water year, the MDBC must tell the states of the figure. Each state is required to monitor and report to the MDBC on diversions made, water entitlements announced, allocations, trading of water within, to, and from the state, and report on compliance with the target. The state must also report on measures undertaken or proposed to ensure that the water taken does not exceed the annual diversion target for

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the ensuing year. The MDBC appointed an Independent Audit Group, which annually audits and reports upon the performance of each state government. There is also power to order a special audit if the diversion for water supply to metropolitan Adelaide has exceeded 650 GL, or the cumulative debit recorded in the Register exceeds 20 per cent of the annual average for a particular river. Many special audits have been conducted on this basis. In 1999, the MDBC commissioned a review of the operations of the cap and concluded that: . . .

The cap has supported the Ministerial Council’s aim of achieving the ecological sustainability of the Basin’s river systems. While the cap does not necessarily provide for a sustainable basin ecosystem, it has been the essential first step in achieving this. Without the cap there would have been significantly increased risk that the environmental degradation of the River’s systems would have been worse.

The process to leading up to the 2007 Water Act Australia has inserted the ESD obligation into national and state-based laws on water regulation inter alia since 1992. This was evidenced by the Intergovernmental Agreement on the Environment in 1992 (Boer 1995). This was a shock to the previous state norms, which emphasised water as a means of state development and economic growth with little consideration of the environmental aspects. Australia intensified its adoption of the environmental protection aspects of the Rio formulation during a 10-year drought from 2000 to 2010. It created polycentric regional water allocation plans (given several names) under many state laws. These had responsibility for reducing water over-allocation of both the surface and groundwater, which was a chronic problem in most places (Murray Darling Basin Commission Water Audit 2002). Many of the plans (there are over 150) have been litigated in state courts. Under some of these cases, the water allocations to farmers were reduced by up to 50 per cent (see the case study below). The states were required to insert ESD obligations into their state water management laws as part of the 1994 Council of Australian Government reforms. The encouragement took the form of financial incentives from the Commonwealth under Section 96 of the Constitution. The 2007 Water Act enabled the federal government to review state-based water plans in the Murray Darling Basin area on the basis of compliance with the national interest and also if they implemented relevant international obligations. This was once again in a time of drought. The implementation of the power to adopt state regional water plans has not been exercised at this time. Indeed, the creation of the Murray Darling Basin water plan (based on state water plans) has had several iterations and caused extreme political

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tensions in the period from 2010 to February 2013. In the first consultation the concerns of the community were seen to be subjugated to the environment. The final consultation took place in April 2012, and the plan was contested again (The Australian Newspaper, 16 April 2012: 1). The issues of how to strike an acceptable balance between the three pillars – economic, environmental and social – have arisen again (Connell et al. 2005). The reconciliation of the triple bottom line is still under debate as this chapter is being written and there are several discourses and several epistemic communities arguing for their pillar to be elevated (Elkington 1977). Most are against the environmental pillar having the first call, which seems to be the predominant legal interpretation at this moment. Indeed as Allan (2010) reminds us, disputes about water are political. There are several public discussions of these concepts and there have been two rejections of the amounts of water required to be recovered from consumptive users. The 2007 Water Act was drafted by Malcolm Turnbull based on the 2007 National Plan for Water Security, outlined on 25 January 2007. With the change in government, it was amended by Minister Wong (then minister for climate change and water) in 2008 and referred to as a new plan called Water for the Future, which was announced on 29 April 2008. This new plan introduced the concept of critical human water needs and also gave more power to the Murray Darling Basin Authority. On 15 December 2008, the Water Amendment Act 2008 commenced. Like the original Act, this is based on a combination of Commonwealth constitutional powers and a referral of certain powers from the Basin States to the Commonwealth under Section 51(37) of the Constitution Act. The Water Amendment Act 2008 passed through the Commonwealth parliament following the passage of refer legislation through the Basin states – Queensland, New South Wales, Victoria and South Australia (This occurred in late 2008. Revised Explanatory Memorandum (Commonwealth of Australia Explanatory Memoranda, Water Amendments Act 2008)). In the 2007 Water Act, the ESD definition was reduced in scope from the previous formulation and it was used in relation to the creation of the Basin plan. Only the first two principles are in common with the original seven, but the integration principle still applies. Thus, the following principles are principles of the ESD as used in the Water Act: (Commonwealth Consolidated Acts, 2007 Water Act, Section 4) i. Decision-making processes should effectively integrate both longand short-term economic, environmental, social and equitable considerations. ii. If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures (the 2007 Water Act defines ‘measures’ to

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include also strategies, plans and programmes) to prevent environmental degradation. iii. The principle of intergenerational equity, i.e. that the present generation should ensure that the health, biodiversity and productivity of the environment is maintained or enhanced for the benefit of future generations. iv. The conservation of biodiversity and ecological integrity should be a fundamental consideration in decision-making. Biodiversity means the variability among living organisms from all sources (including terrestrial, marine and aquatic ecosystems and the ecological complexes of which they are a part) and includes: (a) diversity within species and between species; and (b) diversity of ecosystems. v. Improved valuation, pricing and incentive mechanisms should be promoted. The new ESD section neither emphasizes community engagement nor the trade aspect of resource use nor international agreements. However the last is covered in the objects clause of the Act. The question, however, is still what do the set of five principles mean as a whole and do they create a determinate set of rules? Indeed, these are an Australian-style conflation of many international concepts over the difficult problem of water management (Bellamy et al. 2002). It will be the judiciary that will need to make these words determinate. Determinacy is a principal legal problem defined as judicial manageability from the procedural or adjudicative perspective. The key issue that will arise will concern the tensions inherent in reviewing the exercise of Commonwealth ministerial discretions that are reposed in the Act. There is of course the tension in any judicial review of decisions made by ministers. The result of all this activity is that state sovereignty over water use plans is limited by these profound international concepts. The administration of the Water Act will be for the future to determine. CASE STUDY ON STATE WATER PLANS (MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 [2010] HCA 3 CASE FROM NEW SOUTH WALES) This case study looks at the constitutional issues concerned with the reduction of water under a state water plan. The key issue was whether the federal law applied, with its right to just compensation for a taking of property, or the state law with the scheme mentioned in the section above. In a majority decision of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ with Dissent: from Heydon J) it was held that

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state law applied to groundwater. Just because the Commonwealth provided a state with a financial grant that required the state to pass legislation cancelling licenses for access to bore water held by the appellant, did not mean that the state law was invalid. The bore holders wanted the Commonwealth legislation to be invalid as it abridged Section 100 of the Constitution (to restrict?) the appellants’ right to ‘reasonable use of the waters of rivers’ under Section 100 of the Constitution. The Court found that there was no invalidity because bore water did not meet the definition of ‘waters of rivers’ under the Constitution. Facts The appellants held bore licences in the Lower Murray in New South Wales under the Water Act 1912 (NSW) that were superseded by aquifer access licences under the Water Management Act 2000 (NSW). The appellants’ entitlements were less under the new aquifer access licences. Under the Water Act 1912, the appellants’ bore licences that were subject to change from the time they were granted. The Water Management Act 2000 provided for the minister to determine water management policies and allowed the minister to convert previous water licences to new licences under new terms as provided for under the Act. In 2004, the Commonwealth and each of the states and territories (except Western Australia) entered the Intergovernmental Agreement on a National Water Initiative, providing for the creation of a National Water Commission. The agreement included objectives relating to water management in the Murray Darling Basin. As a result of this and corresponding agreements, the New South Wales government accepted Commonwealth funding (US $55 million) to reduce the allocations of groundwater licences in the Lower Murray region using the powers of the Water Management Act 2000. The Commonwealth funding was intended to help assist the New South Wales government in offsetting the impact to licence holders. Commonwealth funding was administered through the National Water Commission under the National Water Commission Act 2004 (Commonwealth). The appellants challenged the removal and replacement of their licences on the basis that the replacement of their water licences by the government of New South Wales as the result of funding by the Commonwealth was an acquisition of property not on just terms in breach of Section 51(xxxi) of the Constitution. This Section reads: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

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Outcome of the case Any funding provided by the Commonwealth under the National Water Initiative will not require compensation under Section 51 (xxxi). The case was decided narrowly for groundwater only, so it is possible that another case may need to decide this issue for waters of rivers in the event of a plan reducing the consumptive pool under Commonwealth funding. STATE WATER SOVERIGNTY EPOCHS CURRENT AND FUTURE AND CHALLENGES IN AUSTRALIA The nine epochs of Australian irrigation water supply for broad-scale irrigated agriculture from the past to the immediate future are listed in Table 22.1 and set out below. (1) 1788– 1901: state colonial law: This was highly introspective in each state. The common law riparian doctrine and groundwater doctrines were inherited from England. These tied water access to land. (2) 1901– 83: fiscal federalism, Sections 96 and 100: There was limitation of Commonwealth powers over water. All over Australia, land and water in rivers, and to a lesser extent aquifers, were allocated to put people in the vast. Each state allocated water under different rules, and the growers were unfamiliar with the land, soils and the climate. As a result there was much over-allocation of water. The legacy of different state laws was felt in relation to water trading, where in the Southern Connected River Murray System spanning northern Victoria, southern New South Wales and part of South Australia there were over 180 categories of irrigation water entitlements. These had and still have different levels of reliability, tenure periods, protection of interest in the water license, and nomenclature. (3) 1983– 94: treaty power: Treaties enhanced federal intervention power over water, as did the Tasmanian Dams’ case, which showed the importance of treaty power (in this case over World Heritage sites) as a way to extend federal government powers. The principles of ESD were described as national policy and there were de facto or semi-formal water markets in some states. South Australia started permanent water trading with New South Wales in 1982, Queensland in 1989 and Victoria in 1991. These give individual growers individual rights over water and entrenched individualist aspirations. In many places the early water markets caused more water to be used as the never used (sleeper) or partly-used dozer water was mobilized as it had value. (4) 1994– 2007: weak national protocols funded by Section 96 but strong state enforcement: The Council of Australian Government’s reforms required water markets. ESD and competition law reforms hence

1788 – 1901, introspective

1901 – 83, introspective

1983 – 94, ecologically sustainable development (ESD)

1994 – 2007, ESD and other concepts used to create longterm policies

2007 – 8, ESD and other concepts to sued to create longterm policies

2008 þ , ESD and other concepts used to create long-term policies

2008 þ , ESD and other concepts used to create long-term policies 2008 þ , ESD and other concepts used to create long-term policies

2008 þ , ESD and other concepts used to create long-term policies

1

2

3

4

5

6

7

9

8

Dates/ use of international concepts

Epoch

Local water plans; state-based and Murray Darling plan; a legislative instrument in early 2103 Local around a water recycling or desalination plant or an irrigation commodity portfolio; approaches fit for purpose; water for cities Local impacts as risk areas of primary concern

State litigation on water plans, urban recycling, drought and reduced allocations or zero allocations for some growers Water plans in the Murray Darling Basin subject to federal adoption and accreditation discretion power (not yet used) Local water plans; state-based and Murray Darling plan; a legislative instrument early in 2013

State and regions, as water plans required

State

Local and colony then state

Spatial scale

Shorter-term inter-generational conflict

Shorter-term inter-generational conflict

Longer terms but now vocal groups pushing for shorterterm perspective 150 plans drafted Shorter term and longer term

Longer-term environmental and social perspective after 2008

Longer-term perspective intragenerational equity through environmental preservation

Longer-term perspective intra-generational equity

Short term only in allocation

Short term

Temporal scale

Climate change uncertainty.

Foreign investment in water supply; urban and monopolistic behaviour in rural water markets.

Spiritual and customary rights and economic rights for indigenous people.

Inherited common law. The era of different railway gauges and different approaches to free trade or protectionism. Federation, Section 100. Fiscal federalism. Overallocation of water. Enhanced federal intervention and ESD and integrated water resources management required permissive means allowed by the Council of Australian Governments. Embryonic markets in South Australia and all state consider environment. Stronger federalism and regional delivery through state governments; stronger Council of Australian Governments with 80 actions under threat of losing federal tax revenue (Section 96) 2007 Water Act as amended. Stakeholders in current irrigation areas unhappy with environmental allocation. Several consultation phases occurred and delays in adoption. Food and biofuel security issues, and choices between environmental protection, and mining and agriculture and. Expansion of conflicts

Issues

Table 22.1. Summary of past, present and future water management epochs and the spatial and temporal scales of the predominant institutional issues

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enhanced Section 51 (xx) Trade Practices powers, and state litigation on state water plans where the consumptive pool was reduced. There was regional delivery through state governments and other groups and a detailed protocol of 80 state actions was created. During this period, a subsidiary market opened up for peri-urban water reuse for intensive horticulture and for non-potable use in cities. (McKay & Hurlimann 2005, Keremane & McKay 2007). (5) 2007: the Water Act federal legislation asserting power over state water plans in Murray Darling Basin: This used Section 51 powers in the federal constitution and concurrently referred to state powers under Section 51(37), the water markets area subsidiary part of water management plans, which set the consumptive pool for a region. The Water Act provides national regulation of the contents of plans in the Murray Darling Basin that are in the national interest. It potentially gives a broad power to alter state assessments of the consumptive pool. By 2007, the National Water Initiative proposed that compatible institutional and regulatory arrangements for trade should be put in place, including principles for trading rules (paragraph 60 and Schedule G). (6) 2007 and the future: food security issues/mining and water markets: There will be an expansion in this realm of conflicts between users and the social cultural economic aspects of water use and preservation of communities. The first has and will continue to be a set of issues around the rights of growers to historical water use regimes, and this will be tied up with arguments about food security. In some regions biofuels are also demanding water and producers are able to purchase it from growers. While this may move water to higher value uses, there are social justice issues in some places. In this epoch another issue is the conflict between mining and agriculture, where the mining processes lower a water table or have impacts on the land available for growing. Management of water resources in Queensland is underpinned by a planning framework. The 2007 Water Act provides for a two-stage planning process. First a water resource plan is developed. This plan states the strategic goals of the catchment, states how much water is available and sets the principles for sharing the water among competing interests. Implementation is via a second plan – a resource operations plan – which includes the rules for the trading of water allocations as well as rules for how operators of water supply schemes must operate their schemes and share the resource available at any point in time. Once approved, plans are valid for 10 years, at which time a new water resource plan (and resource operations plan) must be completed. The water planning process is the mechanism for implementing water trading and for granting tradable water rights. On completion of the resource operations plan, existing water entitlements (which attach to land and are not tradable) are typically replaced with ‘water allocations’, which are separate from land and can be traded. However not all water entitlements are converted to tradable water

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allocations. Queensland has strengthened its Water Act to regulate underground water impacts associated with the extraction of petroleum and gas. Queensland declared a cumulative management area where the impact of two or more tenure holders overlaps. The Surat cumulative management area was the first in March 2011; this is funded by a levy paid by petroleum tenure holders. In other states, mining legislation may be used for this purpose and this moves away from the integrated water resources management ideal. Finally, in recognition of all of this, the federal government is creating a water stewardship programme. This involves developing stakeholder-endorsed principles and standards for responsible water use by commercial water users; establishing a verification process; and building a brand and logo that allows customers to recognize and reward responsible water users. A National Water Planning Report Card, a new interactive web resource, has been launched by the National Water Commission to help people easily access information on the status of water planning across Australia. This online web application, based on the inaugural 2011 National Water Planning Report Card, provides a summary of the status of water plans across Australia, including the quality of existing water plans, their implementation, and areas for future improvement. Spiritual and customary and economic water rights under human rights treaties is still nascent and is incorporating social spiritual and customary objectives into water plans, taking account of an expanded concept of native title rights to water, water allocated to native title holders and certain indigenous representation in water planning. There are some commentators talking about market-based systems interacting with customary rights systems and the inevitable clashes, especially if the native title systems morph into commercial rights to support economic aspirations. These factors may push for the increased centralization of control over water which is also in evidence in National Water Initiative publications. There are real potential clashes in the institutional types desired by indigenous communal systems to run the land and water as opposed to the growers, who prefer the present market system with individual rights. Queensland has proposed to establish indigenous reserves with specified volumes of surface or groundwater available through a licence (Water and Other Legislation Amendment Bill 2011). (7) Issues with foreign investment in water resources through the market: The Australian Bureau of Statistics in 2011 confirmed that 11 per cent of Australian agricultural land and 9 per cent of water is owned fully or partly by foreign investors (Nason 2011). These were the results of a one-off survey commissioned by the Federal Treasury in December 2011 was in response to rising public concerns that Australia was undermining its future food security by ‘selling the farm’ to off-shore interests. The main issue with foreign investment in water markets is that

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there are ways to circumvent the oversight from the Foreign Investment Review Board (Morris 2012). One way, demonstrated by a recent approval for water purchases, is for the state government to approve a project. The Federal Treasury says it never looks specifically at foreign acquisition of water licences, and takes an interest only if a foreign player is buying an agribusiness worth more than US$231 million. This has been raised to US$244 million and is much more if the investor is a US-based entity. Mr Richard Lourey, managing director of the Causeway Water Fund, rejects fears about ‘water barons’, claiming his investment fund will allow ‘water to be used in the most productive way possible. We would argue that’s in Australia’s strategic best interests’ (Snow & Jopson 2010). Farmers’ groups are worried, however, that big players could corner areas of the market by buying up permanent rights in whole valleys, or by being able to dictate what food is grown where by controlling water. Some farmers’ groups in New Suth Wales have asked for Foreign Investment Review Board intervention for sales over US$2 million (Nason 2011). ‘We don’t have a problem with investment, or indeed, speculation in the water market,’ said Mr Andrew Gregson, chief executive of the New South Wales Irrigators Council. ‘We are concerned about market dominance. It’s a recently developed, relatively fragile market’ (Snow & Jopson 2010). (8) The Basin plan and relevant international agreements and climate change as drivers of future judicial decisions: Any adjustment to the consumptive pool in water plans (because of natural events such as climate change) after 2014 will need to be shared according to a risk formula if no other risk sharing formula is agreed to (National Water Initiative paragraphs 46 – 51). So once again, formulas for sharing that reflect the past arrangements will be produced to cope with climate change. Section 21 of the 2007 Water Act provides the basis on which the Basin plan is to be developed and this directly incorporates several relevant treaties and makes allowance for inclusion of others by the term ‘relevant’. It is unlikely that relevance will provide much cause for legal dispute; however, this direct incorporation of the treaties brings into play Section 15AB(2) (d) of the Act’s Interpretation Act 1901, which permits recourse to ‘any treaty or other international instrument that is referred to in the Act’ as extrinsic material that may be used to conform the ordinary meaning of the text (Section 15AB[1][a]) or where there is ambiguity or the ordinary meaning would lead to an absurd result (Section 15AB[1] [b]). Clearly, what is not considered ambiguous will be an issue in special cases and this will cause evidentiary issues to arise. Apart from the treaties listed, there are two texts of relevance: the UN Convention on the 1997 Non-Navigational Uses of International Watercourses and the 2010 UN International Law Commission Draft

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Articles on Transboundary Aquifers. McCaffrey (2010) has long argued that the 1997 Convention is customary international law and hence applies to all nations. However, it is not a relevant treaty under the Water Act. In the drafting of the Water Act, the 1997 Convention was not referred to at all, although many of the concepts in the 1997 Convention do accord with ESD. The 1997 Convention and the Transboundary Aquifer Draft Articles both impose a general duty to cooperate. The general obligation it states in the transboundary aquifer rules is as follows. Aquifer states shall cooperate on the basis of sovereign equality, territorial integrity, sustainable development, mutual benefit and good faith in order to attain equitable and reasonable utilization and appropriate protection of their transboundary aquifers or aquifer systems. States are enjoined to establish a joint mechanism of cooperation (Article 7). In Australia, our mechanisms have focussed on state interests (see earlier). Perhaps, this focus will eventually lead to a more expansive and national interest concept, not an introspective state interest approach. THE OUTLOOK Clearly, Australia will be able to provide case studies applicable to international law as examples of state practice with respect to the implementation of water plans, sustainable development, ESD, the precautionary principle and integrated water resources management. One example is given here, of the modern concept of ESD changing past water allocation practices and reducing use in order to protect the environment. The stare is therefore asserting its sovereign power to change its mind and change individual interests. In the long term this piecemeal approach was not considered in the national interest and hence there has been a more comprehensive handover of some sovereignty by states in the 2007 Water Act. How this will be implemented will provide several further legal issues and examples to guide other nations. The administration of the 2007 Water Act will be contested and it is possible that it could be repealed. There are several communities of citizens who have different appreciations of science (Edmonds 1998, McKay 2011a) and the conflicts between stakeholders has already delayed the passing of the 2007 Water Act (NCCARF Briefing Paper (No.2)). REFERENCES Anon, ‘NSW farmers want Murray water plan pulled’, The Age, 27 October 2010. Australian Associated Press, ‘Basin authority needs more time for plan’, The Age, 2 November 2010.

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Bellamy J.A., Ross H., Ewing S. and Meppem, T., Integrated Catchment Management: Learning from the Australian Experience for the Murray Darling Basin (CSIRO Sustainable Ecosystems, 2002). Boer, B., ‘Institutionalising Ecologically Sustainable Development the roles of National State and Local Governments in translating grand Strategy into Action 31,’ Willamette Law Review (1995), pp. 307 –58. Brown R., Ashley R. and Farrelly M., ‘Political and Professional Agency entrapment as Social Learning: an agenda for Urban water research’, Water Resources Management 25/15 (2011). Commonwealth of Australia, Intergovernmental Agreement on a National Water Initiative, Commonwealth of Australia, Canberra, 2004. ———, Commonwealth of Australia Explanatory Memoranda 2008, Water Amendment Bill, 2008. Available at: http://www.austlii.edu.au/au/legis/cth/bi ll_em/wab2008173/memo_2.html. Commonwealth Consolidated Acts, 2007 Water Act – Section 4, 2007. Available from: http://www.austlii.edu.au/au/legis/cth/consol_act/wa200783/s4.html# principles_of_ecologically_sustainable_development. Connell D., Dovers S. and Grafton Q., et al., ‘A critical analysis of the National water Initiative’, The Australasian Journal of Natural resources Law and Policy 10/1 (2005), pp. 81– 107 Council of Australian Governments, Water Resources Policy Communique and Report of the Working Group on Water Resources Policy, (Council of Australian Governments, Canberra, 1994). ———, Water Reform Framework, Canberra, 1994. ———, Intergovernmental Agreement on a National Water Initiative, Canberra, 2004. Dietz, T. and Stern, P.C., ‘Science, values and biodiversity’, BioScience 48 (1998), pp. 441– 4. Elkington, J., Cannibals with Forks the Triple Bottom Line of 21st Century Business (Oxford: Capstone Publishing Ltd., 1977). Edmond G., ‘Negotiating the meaning of a ‘scientific’ experiment during a murder trial and some limits to legal deconstruction for the public understanding of law and science’, Sydney Law Review 20/3 (1998), p. 361. Lane M.B., McDonald G. and Morrison, T., ‘Decentralisation and environmental Management’, Australia Australian Geographical Studies 42/1 (2004), pp.103 –15 McCaffrey S., Sovereignty and Cooperative Management of Shared Water Resources in a Time of Shrinking Availability: the Role of International Law in ISARM 2010 Transboundary Aquifers – Challenges and New Directions (Paris: UNESCO, 2010). McKay J.M., ‘Who Owns Australia’s Water-elements of an Effective Regulatory Model?’, Water Science and Technology 48/7 (2003), pp.165 – 72. ———, ‘Water Institutional Reforms in Australia’, Water Policy 7/1 (2005), pp. 35–52. ———, ‘Some examples of the integration of environmental, economic and social considerations into decision making: the jurisprudence of facts and context’, in Freestone, D. and Nijho, M. (eds), Legal Aspects of Sustainable Development, Volume 7 (Leiden, Boston, MA, 2010). ———, ‘Evidentiary Issues with the Implementation of the Sustainability Duty of Care in the Murray –Darling Basin Plan and the 2007 Water Act: a New Legal

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Paradigm too Far Ahead of the Community?’, in Connell, D. and Grafton, R.Q. (eds), Basin Futures: Water reform in the Murray-Darling Basin (Canberra: ANUE Press, 2011a). ———, ‘Australian water allocation plans and the sustainability objective-conflicts and conflict-resolution measures’, Hydrological Sciences Journal 56/4 (2011b), pp. 615– 29. McKellar, D., ‘Core of My Heart’, The London Spectator poem, 1908. Morris S., ‘Chinese escape FIRB scrutiny on Ord’, Financial Review, 23 November 2012. Available at: http://www.afr.com/p/national/chinese_escape_firb_scruti ny_on_TqSR6uFuvWehZqK0kIz1MO, accessed 9 October 2013. Murray Darling Basin Commission, Murray Darling Basin Authority Plan 2013, available at: http://www.mdba.gov.au, accessed 17 October 2013. ———, An Audit Of Water Use in the Murray Darling Basin June 1995 (Canberra, MDBC, 1995). ———, Water Audit 2002 (Canberra, MDBC, 2002). ———, Guide to the proposed Basin Plan (Canberra, MDBC, 2010). Nason, J., ‘Who owns the farm? Foreign ownership stats released’, Beef Central, 22 July 2011. Available at: http://www.beefcentral.com/p/news/article/374 accessed 9 October 2013. National Climate Change Facility National Climate Change Adaptation Research Facility, Draft Briefing paper no 2and 4 (pamphlets) Adaptation Research Network Water Resources and Freshwater Biodiversity, 2011. National Water Initiative, www.nwc.gov.au, accessed 5 April 2012 Quick, J. and Garran, R., The Annotated Constitution of the Australian Commonwealth (Sydney: Legal Books Sydney, 1976). Snow, D. and Jopson, D., ‘Thirsty foreigners soak up scarce water rights’, The Sydney Morning Herald, 4 September 2010. Available at: http://www.smh. com.au/environment/water-issues/thirsty-foreigners-soak-up-scarce-waterrights-20100903-14uev.html, accessed 4 September 2010. Water and Other Legislation Amendment Bill 2011 QLD, Amendment the QLD Wild Rivers Act 2005. Available at: http://www.legislation.qld.gov.au/Bills/. . ./2011/ WaterOLAB11_AinCE.pdf.

23

Transboundary Water Law: The Practice of the People’s Republic of China

Desheng Hu INTRODUCTION China is a country with more than 50,000 named rivers. We can define a river as a natural channel, whether modified or not, or a system of such natural channels constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus, in which water is contained or flows whether permanently or from time to time. This includes, besides the channel(s), if any, dam(s) that has water flowing in, lake(s) through which water flows, or an estuary through which water flows. A transboundary river is defined as a river, parts of which are situated in different states. According to these definitions, China has some 18 major transboundary rivers with around 180 mainstreams or branches crossing or making up part(s) of its borders, making more than 400 billion m3 of water flowing out of China. Together with a few of transboundary lakes (which are not part of a transboundary river), these rivers make China one of the countries with the most transboundary waters worldwide. These transboundary waters have 40 per cent of China’s surface flows, and concern about one-third of China’s land area. They involve China’s nine provinces or autonomous regions, i.e. Guangxi, Yunnan, Tibet, Qinghai, Xinjiang, Inner Mongolia, Heilonjinag, Jilin and Liaoning, and flow through some 18 countries (or regions) other than China, of which 14 are China’s neighbouring countries (or regions), including North Korea, Russia, Mongolia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Kashmir, India, Nepal, Bhutan, Myanmar, Laos and Vietnam. Four other co-riparian countries include Pakistan, Bangladesh, Thailand and Cambodia. Table 23.1 lists the 19 major transboundary rivers and lakes on which China is a riparian, and Figure 23.1 shows an outline of most of them. As to China’s transboundary waters, there are three pertinent characteristics. The first is that in most circumstances China is the upstream country of the transboundary rivers concerned. The second is that most of these transboundary waters flow through or are located within arid areas and/or poor and/or remote regions of China. The third is that most of these transboundary waters are still in a wild or natural state, with

Transboundary Water Law in the People’s Republic of China

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little or almost no development. However, with the recent economic and social development of the riparian states, especially in the last two decades, more and more issues have arisen in respect of the utilization of these transboundary waters, mainly the surface waters, including, for example, allocation of water, water pollution, exchange of information and data. In particular, where China is an upstream or mid-stream country, its development and/or development plans always attract worldwide attention, no matter whether the impact is positive or negative. This is mainly due to the fact that the possible negative impacts have always been exaggerated greatly by downstream countries or their nationals, as well as by environmentalists and environmental groups. POLICY AND LEGAL SYSTEM OF THE PEOPLE’S REPUBLIC OF CHINA CONCERNING ITS TRANSBOUNDARY WATERS As mentioned above, China’s transboundary waters have mostly tended to be undeveloped with few issues arising, particularly up to 30 years ago. Correspondingly, China has little or no detailed domestic law or policy to deal with relations with countries with which it shares transboundary waters. The policy and principles and/or legal framework have therefore in fact played a vital role. Since the last decade of the last century, however, China has been paying more attention to issues relating to transboundary waters, and its foreign policy on transboundary water has been under emerging. Bilateral treaties have been concluded with most riparians that share transboundary waters with China and/or intergovernmental organization established by some of them (e.g., the Mekong River Commission or MRC). Some domestic rules have also been enacted. China’s policy on its transboundary waters In accordance with the Preamble (paragraph 12) of the Constitution of the People’s Republic of China (PRC), China has pursued an independent foreign policy of peaceful relations, and has developed friendly relations and cooperation with all countries on the basis of the Five Principles of Peaceful Coexistence (i.e., mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence). It has strived for a long-term peaceful international environment and good relations with its neighbours, and has endeavoured to play a positive role in international affairs and to make significant contributions to the maintenance of world peace, the promotion of international cooperation, the achievement of common development, and the establishment of a peaceful, stable, just and reasonable new international political and economic order. In general, China’s policy on its transboundary waters could be summarised as follows:

2.18

15.2

102

100.15

Emil River

Ili River

Tarimb

Indus

4.30

6.14

5.69

99.6

5.70

2.11

4.53

90.24

184.3

164

1.00

2.24

3.32

1.73

3.20

6.45

Total basin area (104 km2)

Basin area within China (km2)

3,600

1,321

1,439

298

4,248

821

4,440

443

520

795

Total length of main stream (km)

444

1,321

637

220

633

620

3447 with border river (3112)

259

Border river (790) 503 with border river (490.4)

Length of main stream within China (km)

Inland river, Alakol Lake (Kazakhstan) Inland river, Balkhash Lake (Kazakhstan) Inland river, Taitema Lake (China) Indian Ocean

Inland river, Ulungur Lake (China) Arctic Ocean

Pacific Ocean

Pacific Ocean

Pacific Ocean

Pacific Ocean

Type of water system

Tibet, China

n/a

Kazakhstan

Xinjiang, China Xinjiang, China

Mongolia

Mongolia

Jilin, China

Jilin, China

North Korea

Location of origin

Major transboundary rivers (lake) with channels (lake areas) concerning China.

Irtysh Rivera

Shuifenhe River Heilongjiang River/ Amur Ulungur River

Yalujiang River Tumenjiang River

Name

Table 23.1.

China, India, Pakistan, Afghanistan, Kashmir

China, Kyrgyzstan, Tajikistan, Kashmir

China, Kazakhstan

China, Kazakhstan, Russia, Mongolia China, Kazakhstan

China, Mongolia

China, Russia, Mongolia, North Korea

China, Russia

China, North Korea, Russia

China, North Korea

Riparian countries

Upstream

Downstream

Midstream

Upstream

Upstream

Midstream and border river Downstream

Upstream, midstream and border river Upstream

Border river

Location of China

16.44

7.63

44.21

2.08

0.0761

81

11.3

45.37

3.238

0.1187 604e

109

591

2075

1,280

4,909

3,562

2,288

3,848

2,700

343 with border river (1) 109 with border river (60) 413e

692 with border river (56) 2075

1698 with border river (1659) 2182 with border river (35)

80

2057

n/a

Pacific Ocean

Pacific Ocean

Pacific Ocean

Pacific Ocean

Pacific Ocean

Indian Ocean

Indian Ocean

Indian Ocean

Indian Ocean

Guangxi, China

Yunnan, China Yunan, China Vietnam

Qinghai, China

Tibet, China

Tibet, China

Tibet, China

Tibet, China

China, Kashmir

China, Vietnam

China, Vietnam

China, Vietnam

China, India, Myanmar China, Myanmar, Thailand China, Myanmar, Laos, Thailand, Cambodia, Vietnam China, Vietnam, Laos

China, Nepal, India, Bangladesh China, Bhutan, India, Bangladesh

Upstream, border river

Downstream

Downstream

Upstream

Upstream

Upstream

Upstream

Upstream

Upstream

a

Notes: The Irtysh River is considered the largest and longest branch of Ob River. It refers here to the section from its origin to the point near Khanty-Mansiysk where it joins the Ob River. b The Aksu River, one of upper branches, together with its sub-branch Toxkan River, is shared by China and Kyrgyzstan; The Kaxgar River, one of upper branches, is shared by China, Kyrgyzstan and Tajikistan; parts of a branch (and its branch) of the Yarkant River, one of upper branches is shared by China and Kashmir. c The upstream regions of some branches (such as Ghaghara, Gandak, Kosi) are located in China. d The Pear River refers to the river system composed of rivers of Xijiang, Beijiang, Dongjiang and other small rivers sharing the Pearl River Delta.The Xijiang River is usually considered the main stream. Zuojiang River, one of 5th-level upper branches, originates in Vietnam and is shared by China and Vietnam. e The numeric refers to the relevant surface water area of the lake.

Zuojiang Riverd Beilunhe River Bangong Co Lake

13.60

2.12

42.09

26.6

24.05

71.2

Yarlung ZangboBrahmaputra River Ayeyarwady

Nujiang-Salwee River Lancang/ Mekong River YuanjiangRed River Pearl Riverd

4.53

107.3

Gangesc

512

A History of Water

Figure 23.1. Main rivers and lakes in China. (Source: Maps Education Web of Sino Maps Press, http://www.ditu.com.cn/fw/main_fw_map_11.htm, 2012.)

i) To strengthen cooperation with other riparian states. ii) To adopt administrative measures within its own territory. Strengthening cooperation with other riparian states The utilization of transboundary waters is a great challenge with many questions or problems for all riparian countries to deal with. The Chinese government has paid great attention to this area, and has insisted that the cooperation should be strengthened through negotiation(s). From Table 23.2, one can see that many international instruments have been concluded between China and its co-riparians and/or their intergovernmental organizations. Under these documents, China has provided hydrological information, built hydroelectric power stations and/or other projects with its co-riparians. Plans on the Comprehensive Utilization of the Waters of the Irtysh River and Heilongjiang River have been finalised by Russia and China, and joint mechanisms have been set up to facilitate detailed cooperation. For example, due to an inadequacy of hydrological stations and unclear data regarding run-offs, there is a problem that existing facilities have

Transboundary Water Law in the People’s Republic of China

513

lagged behind ever-increasing cooperation between China and its coriparians in the exchange of hydrological information, and other information on water resources management and shipping. In order to resolve this problem, in January 2002 the Ministry of Water Resources of the PRC (MWR) approved the Construction Plan for the Hydrological Network on International Rivers, under which 134 transboundary rivers and/or their branches (about 80 per cent of China’s transboundary water bodies) are covered. To implement the Plan, the Chinese government had appropriated 170 million CNY (about US$26 million) for the first stages of the hydrological network construction and management (Zhang 2004: 50–51). By the end of 2010, the Plan had generally been implemented completely, and the monitoring rate of control of cross-sections of outbound rivers had increased from 55.5 per cent in 2000 to 80 per cent in 2010 (Liu 2011). This move will be very helpful for China in providing its downstream co-riparians with humanitarian assistance, and demonstrates China’s efforts to strengthen international cooperation with neighbouring countries sharing international rivers by actualizing hydrological monitoring and information services. Adopting administrative measures within its own territory The Chinese government believes that, under the principle of state sovereignty, each state is entitled to take measures to utilize waters, including those flows in transboundary rivers or lakes, within its territory without doing significant harm to other riparian states. For example, the Chinese representative Gao Feng stated before the vote on GA R51/229 on 21 May 1997 that, ‘territorial sovereignty is a basic principle of international law. A watercourse State enjoys indisputable territorial sovereignty over those parts of international watercourses that flow through its territory’ (UN 1997: 6–7). On 1 March 1996, the Notice on Licensing Authority Limitation concerning Water-drawing from International Transboundary Rivers, International Border Rivers and Trans-province (Autonomous Region) Inland Rivers was issued by the MWR. This document stipulates the procedure for the abstraction of water from transboundary waters, and defines the administrative powers of the relevant authorities in the process. In order to implement the Decision on Accelerating the Water Conservancy Reform and Development adopted on 31 December 2010 by the Central Committee of the Communist Party of China (CPC) and the State Council of the PRC, the State Council issued the Opinions on Implementing the Strictest Management System for Water Resources on 12 January 2012. Under this Opinion, three red lines are drawn to control the quantity of water resources to be developed and utilized (the total volume of water use in China will be limited to within 700 billion m3 by 2030), to control the efficiency of water use (this will reach or be close to the advanced world level by the year 2030), and to limit pollution to within the pollutantcarrying capacity of water function zones (the total volume of major

Agreement on Navigation Cooperation in Border Rivers Cooperation Agreement on Hydrologic Work of Yalujiang River and Tumenjiang River Rules for Vessel’s Navigation in the Border Rivers of China and the Democratic People’s Republic of Korea Agreement on Joint Construction, Management and Maintenance of Border-River Road Bridge on Yalujiang River Cooperation Agreement on Maritime Administration of Yalujiang Water Area Agreement on Joint Construction, Management and Maintenance of Ji’an–Manpu Border–River Road Bridge on Yalujiang River Agreement on Management System of China–Russia Border Agreement on Reasonable Utilization and Protection of Transboundary Waters Treaty on Management System of Border Agreement on Protection and Utilization of Border Waters Cooperation Agreement on Utilization and Protection of Transboundary Rivers Agreement on Management System of China– Kazakhstan Border Agreement on Mutual Exchange of Hydrology and Water Quality Data of Major Border Hydrological Stations in Transboundary Rivers Agreement on Development of Science Research Cooperation on Transboundary Rivers

North Korea

Kazakhstan

Mongolia

Russia

Title of the treaty

Foreign parties

20 December 2006

20 December 2006

20 December 2006

12 September 2001

1 June 2010 29 April 1994

29 January 2008

9 November 2006

10 May 2012

28 April 2011

25 February 2010

1 September 1982

23 May 1960 30 June 1978

Date of signature

Article 1(14) and (15), Chapter 4 (Articles 8–11), Article 15(2) Between Ministry of Water Resources of the People’s Republic of China and Ministry of Environmental Protection of Kazakhstan Between Ministry of Water Resources of the People’s Republic of China and Ministry of Agriculture of Kazakhstan

Article 1(11), Chapter 4 (Articles 8–13)

Article 1(11), Chapter 4 (Articles 8–14)

Remarks

Table 23.2. Some of international documents on transboundary waters between/among China and its riparians and/or their intergovernmental organization

Bangladesh

MRC

Laos, Myanmar and Thailand

Laos Vietnam

Myanmar

Nepal

India

Kyrgyzstan Tajikistan

Joint Communique ´ Cooperation Agreement on the Joint Construction of Horgos River Friendship Joint Diversion Control Project Agreement on Protection of Water Quality of Transboundary Rivers Cooperation Agreement on Environmental Protection Joint Statement Agreement on Management System of China–Tajikistan Border Memorandum on the Provision of Hydrological Information on Yaluzangbu/Brahmaputra River in Flood Season by China to India Joint Statement Memorandum on the Provision of Hydrological Data on Langqen Zangbo/Sutlej by China to India during Flood Season Joint Communique ´ Sino-Nepal Agreement on Construction, Management and Maintenance of the Border–River Bridge (Rasuwa Bridge) on Trishuli River Agreement on China–Myanmar Border Management and Cooperation Treaty on Border System Agreement on Management System of China–Vietnam Land Border Agreement on Commercial Navigation on Lancang/ Mekong River among the Governments of China, Laos, Myanmar and Thailand Agreement on the Provision of Hydrological Information of the Lancang/Mekong River in Flood Season Joint Communique ´ Memorandum on Cooperation in the Field of Water Resources Implementation Plan on Provision of Hydrological Information of the Yaluzangbu/Brahmaputra River in Flood Season by China to Bangladesh Paragraph 9

16 December 2010 17 August 2011

20 November 2008

8 April 2005 18 August 2005

1 April 2002

20 April 2000

3 December 1993 18 November 2009

renewed on 29 August 2008 and 6 August 2013 respectively Paragraph 11

Article 6 Articles 1(11), Chapter 4 (Articles 9–13)

Article 1(5), Articles 9 and 10

Paragraph 9 Resigned on 16 December 2010 with amendment

11 April 2005 11 April 2005

25 March 1997

Resigned on 5 June 2008 with amendment

Paragraph 11 of Part 3 Chapter 4

Paragraph 6

14 January 2002

13 June 2011 5 June 2012 5 June 2012

22 February 2011

18 August 2007 13 November 2010

516

A History of Water

pollutants discharged into rivers and lakes will be limited to within the pollutant-carrying capacity of water function zones, and the up-to-standard rate of the quality of water at water function zones will reach 95 per cent or higher by 2030). The implementation of the Strictest Management System for Water Resources has been affecting China’s transboundary waters in a positive way as a whole. It should be mentioned that, in China, in most cases the policy – and in particular those issued by the Central Committee of the CPC – plays a more important role than law, and sometimes policy and law are stipulated in the same document. The Decision on Accelerating the Water Conservancy Reform and Development of 2010 and the Opinion on Implementing the Strictest Management System for Water Resources of 2012 mentioned above could be taken as examples, for documents issued by the State Council are usually of a legal character. Although some might argue that ‘there has been little comprehensive water policy development and few consistent national laws’ (Gleick 2009: 88), this is not true, especially due to the above two documents. China’s legal system relating to its transboundary waters The sources of the Chinese laws concerning transboundary waters could be categorized as The Constitution, treaties, laws enacted by the National People’s Congress (NPC) and its permanent body (the Standing Committee), regulations (administrative, local, autonomous and separate regulations), and rules (departmental and local). The Constitution of the PRC The Constitution of the PRC, which was promulgated in 1982 and amended four times, has a total of 31 amendments. Article 9 of the Constitution, which provides the basic system, e.g. the ownership, utilisation, protection, etc., of natural resources including water resources, should be mentioned specifically for its fundamental characteristics in relation to other legal norms. Treaties The term ‘treaty’ is used here in a broad sense and includes bilateral or multilateral treaties and agreements and other instruments of the nature of a treaty or an agreement. Under the Constitution of the PRC and the Law on the Procedure for the Conclusion of Treaties of the PRC (1990), the State Council shall conclude treaties and agreements with foreign states, the Standing Committee of the NPC shall decide on the ratification and abrogation of treaties and important agreements concluded with foreign states, the president shall – in accordance with decisions of the Standing

Transboundary Water Law in the People’s Republic of China

517

Committee – ratify and abrogate treaties and important agreements concluded with foreign states, and the Ministry of Foreign Affairs shall administer the specific affairs concerning the conclusion of treaties and agreements with foreign states under the leadership of the State Council. The State Council and its working departments can, in accordance with the procedure provided by the Law on the Procedure of the Conclusion of Treaties (1990), conclude treaties and agreements with other states in the name of the PRC, the government of the PRC, and the governmental departments of the PRC. The treaties and important agreements, the ratification of which shall be decided upon by the Standing Committee of the NPC, include: i) treaties of friendship and cooperation; ii) treaties of peace and similar treaties of a political nature; iii) treaties and agreements relating to territory and delimitation of boundary lines; iv) treaties and agreements relating to judicial assistance and extradition; v) treaties and agreements that contain stipulations inconsistent with the laws of the PRC; treaties and agreements which are subject to ratification as agreed by the contracting parties; and vi) other treaties and agreements subject to ratification. A treaty or an agreement other than the above, if it is subject to approval as prescribed by the State Council or as agreed by the contracting party or parties, shall be submitted to the State Council for approval. The decision to accede to a multilateral treaty or an agreement shall be made by the Standing Committee of the NPC when it is of those types that must be decided upon the ratification of the Standing Committee, or by the State Council when it is not of this type. The decision shall be made by the State Council regarding the acceptance of a multilateral treaty or an agreement. According to Article 78 of the Water Law of the PRC (Revision) of 2002, where an international treaty that is pertinent to transboundary waters and to which China is a party or a signatory provides differently from Chinese law, then the provisions of the international treaty shall prevail, with the exception of those clauses on which China has declared a reservation. As of 30 September of 2012, China has concluded many treaties concerning the utilization and/or protection of its transboundary waters with 12 of its 17 riparian states and/or their intergovernmental organizations, and Table 23.2 lists some of the important ones. The laws enacted by the NPC and its Standing Committee The laws enacted by the NPC and its Standing Committee can be categorised into basic law and law other than basic law. Basic law, which

518

A History of Water

shall be enacted and/or amended by the NPC, governs criminal offences, civil affairs, state organs and other matters. When the NPC is not in session, however, the Standing Committee can exercise the function and power to partially supplement and amend laws enacted by the NPC, provided that the basic principles of these laws are not contravened. Laws other than basic laws are enacted and amended by the Standing Committee of the NPC. Laws concerning the utilization of transboundary waters within Chinese territory include: . . . .

Water Law of the PRC (Revision) of 2002; Law for Water Pollution Control of the PRC (Revision); Flood Control Law of the PRC; and Law on Water and Soil Conservation of the PRC. The most relevant laws include:

. . . . . .

Environment Protection Law of the PRC (Revision); Environmental Impact Assessment Law of the PRC; Fishery Law of the PRC (Revision); Forestry Law of the PRC (Revision); Grassland Law of the PRC (Revision); and Law for Electricity Power of the PRC.

Regulations There are three kinds of regulations, i.e. administrative, local, and autonomous and separate regulations. Administrative regulations are enacted by the State Council in accordance with the Constitution and the law. The State Council, i.e. the Central People’s Government of the PRC, is the executive body of the NPC as well as the highest organ of state administration. Administrative regulations are applied nationwide, except when otherwise provided by the Constitution, laws, or the particular administrative regulation itself. The most important administrative regulations include: i) Regulations on the Management of Water-Drawing Licence and Collection of Water Resources Charge; ii) Regulations for River Channel Management; iii) Regulations for Flood Prevention; and iv) Regulations for Soil Conservation. Local regulations are adopted by a people’s congress at the provincial level or its standing committee in light of the specific situations in and actual needs of the jurisdiction. In addition, in light of the specific situations in

Transboundary Water Law in the People’s Republic of China

519

and actual needs of the jurisdiction, the people’s congress and its standing committee of a major city (which refers to a city where the people’s government of the province or autonomous region is seated, the city where a special economic zone is located, and any other major city approved by the State Council) may also enact local regulations. All the local people’s congresses and/or their standing committees at the provincial level have formulated or issued local specialized and detailed regulations to implement the Water Law of the PRC (Revision) of 2002 and other waterrelated laws. There are some special local regulations that govern the protection and utilization of the transboundary waters within Chinese territory. For example, in Xinjiang, Regulations on the Protection of Fishery Resources of the Ili River and the Irtysh River and Regulations on the Protection of Eco-environment of the Ili Basin were approved by the Standing Committee of the People’s Congress of Xinjiang Autonomous Region in 2004 and 2011, respectively. The Standing Committee of the People’s Congress of Xinjiang Autonomous Region adopted the Regulations on the Management of Water Resources in the Tarim Basin in 1997, and revised them in 2005. Autonomous regulations and separate regulations are enacted by a people’s congress of an ethnic autonomous region in exercising its autonomy and in light of the political, economic and cultural characteristics of the ethnicity or ethnicities in the area(s) concerned. Autonomous or separate regulations enacted by an autonomous region become effective after review and approval by the Standing Committee of the NPC, and those enacted by an autonomous prefecture or autonomous county shall come into force after they have been reviewed and approved by the standing committee of the relevant people’s congress at the provincial level. This type of regulation concerns the affairs of autonomous regions, and has almost no relevance to transboundary waters. Rules There are two kinds of rules: departmental and local. Departmental rules are issued by the People’s Bank of China, the Auditing Agency, or any of the working departments under the State Council, e.g. the MWR. These organs exercise a regulatory function within the scope of their authority in accordance with national law and administrative regulations, as well as decisions and orders of the State Council. A matter on which a departmental rule is enacted has to be a matter that lies within the scope of the implementing national law, administrative regulations, and decisions or orders issued by the State Council. Departmental rules must be applied nationwide, except when otherwise provided by the Constitution, laws, administrative regulations or the particular rules themselves. One of the most important rules concerning the utilization of transboundary waters is the Notice on Licensing Authority Limitation Concerning Water-Drawing

520

A History of Water

from International Transboundary River, International Border River and Trans-Province (Autonomous Region) Inland River issued by the MWR on 1 March 1996. Local rules are formulated by the people’s governments at the provincial level, or of major cities, in accordance with the Constitution, laws, administrative and local regulations that are at the provincial level. For example, the People’s Government of the Xinjiang Autonomous Regions promulgated the Interim Regulations on Management of Water Administration and Water Resources of Tarim River Basin on 4 April 1999. TREATY PRACTICE OF THE PRC IN RELATION TO ITS TRANSBOUNDARY WATERS Although it voted against UN Resolution A/RES/51/229, China has not stopped its cooperation with the co-riparian states sharing transboundary rivers, lakes, streams or swamps. Since 1997, many bilateral instruments concerning the utilization and protection of transboundary waters, both legally binding and/or policy measures, have been concluded. One finds that, in these instruments, the expression ‘international watercourse’ is not employed, and alternative expressions are used instead, such as ‘transboundary water’ (with Russia), ‘transboundary river’ (with Kazakhstan), ‘trans-border river’ (with India), and ‘border river’ (with Myanmar). In Article 1 of the Sino–Russia Agreement on Reasonable Utilization and Protection of Transboundary Waters (2008), it is stated that ‘transboundary water refers to any river, lake, stream or swamp which is situated in or crosses the China-Russia boundary’. In Article 1 of the Sino– Kazakhstan Cooperation Agreement on the Utilization and Protection of Transboundary Rivers, ‘transboundary river refers to all rivers which cross or are situated in the boundary between the Republic of Kazakhstan and the People’s Republic of China’. In Article 1(5) of the Sino–Myanmar Agreement on China–Myanmar Border Management and Cooperation (1997), ‘border river refers to any river, stream or channel that the border line crosses.’ Finally, in the Sino–India Joint Communique´ (2010), paragraph 9, the term ‘trans-border river’ is employed. Forms and types of Chinese treaties on transboundary waters The titles of the instruments vary, as outlined below, and are referred to as treaties, agreements, protocols, memoranda, joint statements/communique ´s, plans, rules, etc. Some of the instruments are not specifically focused on transboundary waters, but each of them has one or several articles concerning transboundary waters, such as Article 6 of the Sino–Laos Treaty on Border System (1993), Articles 1(5), 9 and 10 of the Sino– Myanmar Agreement on China–Myanmar Border Management and Cooperation (1997), Articles 1(11), and 8–14 of the Sino–Russia Agreement

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on Management System of China–Russia Border (2006), Articles 1(14) and (15), 8–11, and 15(2) of the Sino–Kazakhstan Agreement on Management System of China–Kazakhstan Border (2006), Articles 1(11), and 9–13 of the Sino–Vietnam Agreement on Management System of China–Vietnam Land Border (2009) and Articles 1(11), and 8–13 of the Sino–Mongolia Treaty on Management System of Border (2010). Some are specifically addressed to transboundary waters. These specialist instruments can be categorized as comprehensive transboundary water documents and special transboundary water documents focused on some aspect(s) of water and/or a specific water programme/project. The Sino–Mongolia Agreement on Protection and Utilization of Border Water (1994), the Sino–Kazakhstan Cooperation Agreement on Utilization and Protection of Transboundary Rivers (2001), and the Sino–Russia Agreement on Reasonable Utilization and Protection of Transboundary Waters (2008) provide examples for the former. Regarding the latter category, some concern navigation matters, e.g. the Sino–North Korea Agreement on Navigation Cooperation in Border Rivers (23 May 1960), the Sino–North Korea Rules for Vessel Navigation in the Border Rivers of China and Democratic People’s Republic of Korea (1 September 1982), the Sino– North Korea Cooperation Agreement on Maritime Administration of Yalujiang Water Area (28 April 2011), the Sino–Russia Agreement on Utilisation of Chinese and Russian Vessels to Organize Cargo Transportation of Foreign Trade in Heilongjiang River and Songhuajiang River (1992, amended in 2002), the Sino–Russia Protocol on Vessel Round Navigation from Wusulijiang River via Chabarovsk to Heilongjiang River (1994), the Sino–Russia Protocol on Cargo Transportation of Chinese Vessel via Russian Parts of Heilongjiang River between Chinese Coastal Ports and Inland River Ports (1998), and the Sino–Russia Rules for Navigation in the Border Rivers between China and Russia (2009). Some concern environmental protection, such as the Sino–Russia Understanding Memorandum on Joint Monitoring of Water Quality of China–Russia Transboundary Water Body (1996), the Sino–Russia Agreement on Xingkai Lake Nature Reserve (1996), the Plan on Joint Monitoring of Water Quality of China–Russia Transboundary Water Body (2006), and the Kazakhstan Agreement on Protection of Water Quality of Transboundary Rivers. Some concern the exchange of hydrological data and/or hydrological work cooperation, e.g. the Sino–North Korea Cooperation Agreement on Hydrologic Work of Yalujiang River and Tumenjiang River (30 June 1978), the Sino–Kazakhstan Agreement on Mutual Exchange of Hydrology and Water Quality Data of Major Border Hydrological Stations in Transboundary Rivers (2006), the Sino–India Memorandum the Provision of Hydrological Data on Langqen Zangbo/Sutlej by China to India during Flood Season (2005), and the Sino–MRC Agreement on the Provision of Hydrological Information of the Lancang/Mekong River in Flood Season (2002, renewed in 2008 and 2013 respectively). Some concern the construction of bridges,

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e.g. the Sino–North Korea Agreement on Joint Construction, Management and Maintenance of Border–River Road Bridge on Yalujiang River (2012), the Sino–North Korea Agreement on the Joint Construction, Management and Maintenance of Ji’an-Manpu Border–River Road Bridge on Yalujiang River (2012), the Sino–Russia Agreement on the Joint Construction of Heihe–Blagovescensk Heilongjiang Bridge (1995) and the Sino–Russia Agreement on the Joint Construction of Shiwei-Olochi Ergun River Bridge (2001). Some concern water utilization projects, such as the Sino–North Korea Protocol on Sino-North Korea Yalujiang Shuifeng Hydroelectric Power Company (7 May 1955), the Sino–North Korea Protocol on Construction Water Locks on Yalujiang River and Tumenjiang River (1996), and the Sino–Kazakhstan Cooperation Agreement on the Joint Construction of Horgos River Friendship Joint Diversion Control Project (2010). There are also some instruments concerning fisheries, scientific research and/or bamboo or log rafting. Tactics employed in negotiations on its transboundary waters For negotiating instruments and implementing them, China has not followed a fixed format or routine; it has adopted the tactic of ‘state by state, river by river, issue by issue’, with other elements (such as political, economic, social, security, etc.) being taken into consideration. This tactic has been widely used worldwide. In international relations, political and security elements play a vitally important role, particularly today. For example, for its own benefit and due to international politics in the early 1970s, the US turned the so-called ‘administrative rights’ over Diaoyu Islands to Japan in 1971, disregarding its international obligations under the Cairo Declaration of 1943 and Potsdam Declaration of 1945, and created a dispute between China and Japan. Paragraph 8 of the Defining Terms for Japanese Surrender (better known as Potsdam Declaration), which has been accepted unconditionally by Japan, clearly states that, ‘Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine’, but the US determined ‘such minor islands’ itself without consent from the Union of Soviet Socialist Republics (USSR) and the PRC. Without taking this into consideration, any utilization of transboundary waters will undoubtedly give rise to trouble, as the politically-oriented Gabcˇ´ıkovo-Nagymaros dispute demonstrates, which, though described as an environmental dispute, is in fact a political one (Hu 2011: 1–7). State by state: case study of Kazakhstan and Russia China shares transboundary waters with Kazakhstan and Russia, whose territories were two union republics of the former USSR. The shared transboundary waters concerned include mainly the Ili River, Emil River,

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Irtysh River, Heilongjiang River (Amur) and Tumenjiang River. The Ili River is shared by China and Kazakhstan. China is a mid-stream country with a great contribution to the flow of the river, and Kazakhstan is located both upand downstream. Kazakhstan has been developing downstream since the USSR era. The Emil River is a transboundary water body shared by both China and Kazakhstan, where China is the upstream country with a great contribution to the flow, and Kazakhstan is the downstream country and has been developing the downstream since the USSR era. The Irtysh River, the largest branch of the Ob River, is shared by China, Mongolia, Kazakhstan and Russia, where China is the major upstream country, and Kazakhstan is mainly a midstream country and the upstream country for some of its branches. The part in Kazakhstan has been over-developed. The hydrological potential of the Russian part has been developed to some extent, but other aspects of these water resources have not been developed to a significant extent due to the cold climate and, in particular, its location in a remote region. Regarding the Chinese part, according to Zhang (Zhang 2007: 17–18), it had seen almost no developement prior to 2000, due to its being in a remote region. The Heilongjiang River/Amur is a large river system with a basin area of about 1,843,000 km2. Its main stream, above Khabarovsk, is known as the Heilongjiang River, which originates in Mongolia, the mainstream of which marks the Sino–Russia border approximately following the Ergunhe River (from the point at which the Da-lan-e-luo-mu River enters the Ergunhe River) and then Heilongjiang River to the meeting point of the Heilongjiang and Wusulijiang Rivers. The Songhuajiang River, one of largest branches of the Heilongjiang River, is located mostly in China, with the exception of part of the small Lake Tianchi. The lake is the origin of the Songhuajiang River, and a part of it is located in North Korea. The Wusulijiang River is also one of largest branches of the Heilongjiang River, its main navigation channel centreline and/or mainstream centreline and/ or river centreline forms the Sino–Russia border from a point of the river centreline of the Bailinghe River, where the Bailinghe River enters Xingkai Lake, a straight line going through the Lake to the exit point of the Song-a-cha River, the meeting point of the Song-a-cha and Wusulijiang Rivers, to the meeting point of the Heilongjiang and Wusulijiang River. The main stem of the Heilongjiang River, together with the main stems of its two largest branches (the Songhuajiang and Wusulijiang) are all navigable. The Chinese part of the Heilongjiang River has been developed to a certain extent, and the Russian part has not been comparably developed due to the cold climate and the small population of this remote region. The Shuifenhe River is shared by China (the upstream country and the major flow contributing country) and Russia (the downstream country). The majority of the Tumenjiang River forms the Sino–North Korea border, with the exception of a short section (about 17 km) forming the Russia–

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North Korea border. Due to geographical reasons and being located in a remote region, these two rivers have not been intensively utilized. They are, however, somewhat small, and unable to support significant human uses/activities. The geographical and, in particular, climatic elements mean that development upstream does not have much adverse impact upon the Russian parts of the above transboundary waters when reasonable flows are maintained and water quality is kept at a proper level by the upper partners. Regarding the relations between China and Kazakhstan, the situation is quite different. In 2000, the Chinese government decided to develop its western region, in which the Chinese parts of the Ili River, Emil River, and Irtysh River are located. The Kazakhstan government has been worrying about the potential impact of Chinese development on its existing utilization of these three rivers, especially the issues of water quality and flows into Kazakhstan. Kazakhstan hopes that negotiations will be conducted and agreement(s) reached as soon as possible. As a mainly upstream country, however, China has many things to do in advance of negotiations, such as the compilation of complete hydrological data and the establishment of the necessary hydrological stations for this purpose. Scientific surveys have to be conducted so as to determine what types of water resources exist, what the quality or quantity of the resources are, to what extent they could be utilized, what demands on water resources will be required due to the development of the relevant regions, and so on. Under these circumstances, China and Kazakhstan have reached a framework agreement on their transboundary water – the Cooperation Agreement on Utilization and Protection of Transboundary Rivers of 2001 – and a Sino–Kazakhstan Joint Commission on Utilization and Protection of Transboundary Waters has been established under the Agreement to better facilitate future negotiation and cooperation. The major concerns involve how much water or what percentage of water generated within Chinese territory should be utilized by China, and what level of water quality should be maintained by China at the point at which water flows out of China. Regarding the Sino–Russia situation, the development level within the Chinese part is generally higher than that within the Russian part, and the cold climate and sparse population make development within the Russian part unfeasible in the near future. Russia does not focus on the allocation of a quantity of water, but is mainly concerned with the possible adverse impacts of Chinese navigation on its territory, the possible utilization of the waters for fisheries by Chinese fisherman, possible water pollution, and transportation across the border rivers. After many special agreements on the utilization of transboundary waters had been concluded, therefore, the Sino–Russia Agreement on Reasonable Utilization and Protection of Transboundary Waters – a comprehensive transboundary waters treaty – was reached in 2008.

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Issue by issue: case study of Kazakhstan As the utilization and protection of transboundary waters concern many aspects and/or issues, it is naive to believe that one agreement could resolve all of these issues, especially when the situations of the rivers concerned are quite different, and/or when the level of development of the water resources is different between different riparian countries. Under these circumstances, following the tactic of negotiating issue by issue is a wise choice. The negotiations between China and Kazakhstan can be taken as an example. As mentioned above, three transboundary rivers, i.e. the Ili, Emil and Irtysh Rivers, are shared by the two countries, and the over-development within Kazakhstan’s territory and very low level of development within Chinese territory together with a lack of hydrological data about the Chinese parts make the conclusion of such an agreement between the two countries resolving all issues at once impossible and unrealistic. Based on this reality, the two countries have decided to first conclude a comprehensive framework agreement and then negotiate details issue by issue. Following the conclusion of the Cooperation Agreement on Utilization and Protection of Transboundary Rivers in 2001, the Agreement on Management System of China–Kazakhstan Border of 2006, the Agreement on Mutual Exchange of Hydrology and Water Quality Data of Major Border Hydrological Stations in Transboundary Rivers of 2006, the Agreement on Development of Science Research Cooperation on Transboundary Rivers of 2006, the Cooperation Agreement on the Joint Construction of Horgos River Friendship Joint Diversion Control Project of 2010, the Agreement on Protection of Water Quality of Transboundary Rivers of 2011, and the Cooperation Agreement on Environmental Protection of 2011 were reached. Taking other elements concerning cooperation into consideration Water resources are not only of social value but also of economic value. Due to its characteristic as a social good, in most countries, water in its natural state lies within the public domain (Solanes & Gonzalea-Villarreal 1999: 29). As the author has pointed out earlier (Hu 2006: 168), ‘Water resources serve multifunctional roles. Water is vital to all living things, as well as to the environment, and is utilised in industries to promote economic development’. The CPC and the Chinese government recognize that, ‘water is the source of life, the necessary element of production, and the essential for ecosystem’, (Central Commission of CPC and State Council of the PRC 2010: 5–10) and the utilization and protection of water, including transboundary waters, concerns not only national flood control, water supply and food security, but also national economic, ecological and state security. All six of these elements of security may affect national political security. Under current international politics, whereby different forms of

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domestic revolution supported by some Western countries have occurred, are occurring or have the potential to occur, the Chinese government has exercised caution in its cooperation in the field of transboundary waters with its co-riparian states. If it does not do so, it may get into trouble. For example, a dispute concerning shared waters may be caused by politics, domestic or international, and the compulsory jurisdiction of the International Court of Justice (e.g. if China attends the UN Watercourses Convention) could be employed to stop China’s fair development, or even protection of its transboundary waters. Further, the national flood control, water supply, food, economic, ecological and state security, as well as the national political security of China, would be under great threat. Joint working mechanisms According to one study (Trombitcaia et al. 2009: 10–11) of some 450 international freshwater-related agreements concluded worldwide between 1820 and 2007, there are three types of institutional arrangements: i) no designation; ii) plenipotentiaries (governmental representatives) appointed to facilitate the implementation; and iii) a joint commission established to facilitate the implementation. Further, only a few agreements adopt the first type, and the institution of joint commissions clearly prevails over the institution of plenipotentiaries. Recognizing the complexity of water-related affairs and the impossibility of resolving all issues (existing and future ones) at once, China has understood the necessity of establishing joint working mechanisms. As early as 1960, Article 10 of the Sino–North Korea Agreement on Navigation Cooperation in Border Rivers, which remains valid today, established a Sino–North Korea Cooperation Committee on Navigation in the Yalujiang River and Tumenjiang River. The Cooperation Committee consists of six representatives sent by the two parties, under which each shall send three representatives. The Cooperation Committee deals with the following matters: i) remediation and maintenance of the navigation channel, construction and management of navigation markers regarding the border segment of the two rivers; ii) modification of the navigation rules; and iii) other matters concerning navigation cooperation. The Committee holds a regular meeting once a year. The Committee is to convene a regular meeting every year in the territory of both parties in turn, and a representative from each party shall chair the meeting in turn. When necessary, an interim meeting may be convened after negotiation. Up to the end of 2011, 50 meetings had been held by the Sino–North Korea Cooperation Committee. In the Sino–Mongolia Agreement on Protection and Utilization of Border Waters of 1994, Article 10 governs the Sino–Mongolia Joint Commission on Border Waters. The Joint Commission consists of six representatives, and each contracting party appoints one representative and two deputy representatives. The Commission is responsible for handling the matters

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related to the execution of the Agreement. The Joint Committee holds a meeting every two years in the territory of both parties in turn, and discusses matters related to the execution of the Agreement and other matters concerning border waters. The meeting is convened and presided over by the host party, and the representatives of both parties may have experts to assist and to participate in the meeting. Two copies of the meeting summary are made for each meeting for submission to both governments. When necessary, an expert meeting may be held. The Article also addresses the burden of the cost of the representatives and experts attending the meeting. The fifth meeting was held in Ulan Bator from 20 to 21 April 2012. According to Article 8 of the Sino–Kazakhstan Cooperation Agreement on Utilization and Protection of Transboundary Rivers of 2001, the Sino– Kazakhstan Joint Commission on Use and Protection of Transboundary Rivers, which is responsible for the development of a statute regulating its activities and for the handling of matters relating to the implementation of the Agreement, was established. The Commission is composed of six representatives, with three (a representative and two deputy representatives) from each party. Article 9 provides that it shall hold a regular meeting each year in each country in turn, and discuss the implementation of the Agreement and matters relating to the utilization and protection of transboundary rivers shared by the two parties. The meeting shall be convened and presided over by a representative of the host country. Representatives from both parties may have experts to assist and participate in the meeting. Whenever necessary, any party may propose holding a special meeting. The minutes are recorded in both Chinese and Russian in duplicate for each meeting. Article 10 deals with the premises of the meeting, transportation and burden of the expenses relating to the meeting. During the ninth meeting, which was held from 27 February to 1 March of 2012 in Urumqi, the Sino–Kazakhstan Joint Commission recognized that the parts of the Ili River and Irtysh River that flow from China to Kazakhstan were the best protected transboundary rivers in Central Asia. In the Sino–Russia Agreement on Reasonable Utilization and Protection of Transboundary Waters of 2008, Article 4 deals with the execution mechanism. Under the mechanism, the Sino–Russia Joint Commission on Rational Use and Protection of Transboundary Water was established. It is led by the two chairmen appointed by each party. The Commission sets up working groups and invite the necessary number of experts to participate in meetings. The Commission shall hold a meeting once a year in each of the countries in turn. When necessary, through the negotiation of the two chairmen, a special meeting may be held. Such a meeting shall be presided over by the chairman of the organizer. The main tasks of the Joint Committee include: i) to coordinate the execution of the Agreement, and to summarize the execution of the Agreement; ii) taking into account the

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work completed by two parties in this field, to develop joint planning on the utilization and protection of transboundary waters; iii) to develop uniform standards and indicators for transboundary water quality and a monitoring plan on the transboundary water; iv) to conduct research on analysis and assessment methods for significant transboundary impacts caused by emergencies, and to develop relief measures to the party affected by the impact on the basis of research; v) to develop plans on the prevention of and response to transboundary water emergencies, and plans to eliminate or mitigate the consequences; and vi) to promote the settlement of the controversial issues between the two parties. The Sino–Russia Joint Commission held its fourth meeting in Beijing from 27 to 29 October of 2011. On 21 November of 2006, China and India agreed to set up an Expert Level Mechanism (ELM) to discuss interaction and cooperation on provision of flood season hydrological data, emergency management and other issues regarding trans-border rivers. Accordingly, the two sides did this. During the 2nd meeting of the ELM held during 10–12 April 2008 at New Delhi, the work regulations of the ELM were agreed and signed by the two sides. The ELM meets once a year, in China and India alternatively. Five meetings of ELM had been held before 2013. On 31 October 2011, Laos, Myanmar, Thailand and China issued a joint statement in Beijing, and decided to establish the Law Enforcement Cooperation Mechanism along the Mekong River. The four countries have created new channels for intelligence exchanges, patrolling and law enforcement, as well as channels for tackling incidents that disrupt public order, combating transnational crimes and dealing with emergency events. On 11 September 2012, Thailand, Myanmar, Laos and China launched their sixth joint Mekong River patrol. CHINA’S PRACTICE RELATING TO TRANSBOUNDARY WATERS: LANCANG/MEKONG RIVER The Lancang/Mekong River has been viewed from different perspectives for various purposes by several books, a number of doctoral dissertations and many research papers (Le-Huu & Nguyen 2003: 1). It is here taken as an example from the perspective of China’s practice relating to its transboundary waters. The river in brief The Lancang/Mekong River, known as ‘Danube of the Orient’, originates in the Tanggula Mountains in Qinghai Province of China on the Qinghai–Tibet Plateau. Flowing through three provincial regions of China (i.e., Qinghai, Tibet and Yunnan) and continuing into Myanmar, Lao People’s Democratic

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Figure 23.2. The topography and physiographic zones of part of the Lancang/Mekong River Basin. (Source: MRC 2008: 1.)

Republic, Thailand, Cambodia and Vietnam before emptying into the South China Sea to the south of Ho Chi Minh City, it has a length of 4,909 km and a basin area of 810,000 km2. Being the longest river in Southeast Asia, the fifth largest in China, the seventh longest in Asia and the tenth longest in the world, it is the third largest international river following the Amazon and

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the Nile in terms of discharge. Within the territory of China, it is known as the Lancang River, and outside of China it is called the Mekong River. See Figure 23.2 for the topography and physiographic zones of part of the Lancang/Mekong River Basin. More than 70 million people, of which 55 million inhabit the Lower Mekong Basin (the part of the watershed area lying within Laos, Thailand, Cambodia and Vietnam), depend on the river and its tributaries for food, water and transport. The people of the Lancang/Mekong River Basin remain, in terms of per capita income, among the poorer or poorest in the world. There is thus no doubt about the need for economic growth through such means as more effective farming techniques and increase of agricultural business, consumer goods production and tourism. This would necessarily be linked with energy and water consumption, increasing movement of goods and people, increasing regional trade and increasing urbanization. The challenge is to find ways to manage the process so that the benefits are optimal while harm is minimized. On 5 April 1995, the Agreement on the Cooperation for Sustainable Development of the Mekong River Basin was signed in Thailand by Thailand, Laos, Cambodia and Vietnam, and the MRC was established and came into operation. According to Article 1 of the Agreement, the contracting parties committed [t]o cooperate in all fields of sustainable development, utilization, management and conservation of the water and related resources of the Mekong River Basin including, but not limited to irrigation, hydro-power, navigation, flood control, fisheries, timber floating, recreation and tourism, in a manner to optimize the multiple-use and mutual benefits of all riparians and to minimize the harmful effects that might result from natural occurrences and man-made activities.

The challenges According to the MRC (Kristensen 2000), the critical challenges being faced in the management of the Lancang/Mekong River Basin resources include: i) ii) iii) iv)

lack of accurate, timely data on water quantity and quality; inadequate understanding of how the Basin functions as a system; incomplete policy and regulatory frameworks; weak enforcement capabilities, coordinating actions and data exchange across international boundaries; v) lack of skilled professional staff; and vi) insufficient awareness among economic planners and decisionmakers regarding the monetary and social value of the Basin’s complex ecosystems and habits.

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China’s practice Regarding the affairs pertinent to the utilization and protection of the Lancang/Mekong River, China has dealt with them under its broader foreign policy, especially the part relating to Southeast Asia. The foreign policy on Southeast Asia has been established on the Five Principles of Peaceful Coexistence. In order to implement the foreign policies, under the arrangement of the Central Government of the PRC, the Ministry of Foreign Affairs and, where appropriate, the other ministries or committees or bureaux under the leadership of the State Council and the local governments, China has adopted necessary measures. As to the Lancang/Mekong River, the Chinese government has always paid great attention to its development, and regarded it as a link of friendship for the peoples of the countries along the River. The details of China’s engagement include: i) ii) iii) iv)

participating the activities relevant to the river; supplying information and data; developing the river in a cooperative way; considering the benefits of the downstream countries in development within Chinese territory; and v) protecting and improving water quality.

Participating the activities relevant to the river China has been a regular dialogue partner with the MRC since 1996, and also holds regular dialogue sessions with the MRC together with Myanmar, the other upstream country that is not a party to the 2005 Agreement. Supplying information and data Article III (8) of the Joint Statement for Future Cooperation signed between China and Vietnam on 25 December 2000 provides that the two countries agree to work together ‘[t]o intensify information sharing and cooperation in environmental protection, prevention and relief of disasters, meteorology and hydrology and work together in the development of the Mekong River area’. On 1 April 2002, a historic agreement, entitled the Agreement on the Provision of Hydrological Information of the Lancang/Mekong River in Flood Season, was signed by the Chinese government and the MRC. According to the Agreement, China will provide information on flow and water levels of the river within China to the four downstream countries, i.e. Cambodia, Laos, Thailand and Vietnam. Under the agreement, the MWR provides data on river levels to the Secretariat of the Flood Management and Mitigation Programme of the MRC in Phnom Penh by computer link-up

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every 24 hours. The information comes from water measuring stations located in Yunnan province at Yunjinghong and Man’an on the Lancang River (the Upper Mekong) in China. Following on from the signing of the Agreement, a Joint Working Group was set up comprising delegates from the MRC and PRC to oversee the practical issues of data-sharing in time for the flood season of 2002. The Agreement was renewed on 29 August 2008 and 6 August 2013 respectively. According to the MRC (2008: ii, 15), the data from China have improved the accuracy of flood forecasts further downstream and eventually led to longer forecasting lead times, and thus has become a core component of the MRC’s flood forecasting and river monitoring activities. Developing the river in a cooperative way Under the Agreement on Commercial Navigation on Lancang/Mekong River among the governments of China, Laos, Myanmar and Thailand in 2000, the River was opened to commercial navigation on 27 June 2001. The agreement has given free passage to commercial shipping on the 893 kmlong stretch of the Lancang/Mekong River from Simao Port in China to Louangphrabeng Port in Laos, with 14 ports and docks being open. The agreement has not only promoted the export and import of goods as well as commercial navigation, but also the tourism industry of the riparian states. China also successfully hosted the Lancang/Mekong River Regional Trade, Investment and Development Cooperation Symposium in Kunming, the capital city of Yunnan Province in 2001. Considering the benefits of the downstream countries in development within Chinese territory China has plans to build eight step hydroelectric stations on the middle and lower reaches of the Lancang River, with a combined installed capacity of 15.55 million kW (gW). While being given priority to power generation, the power station will perform other functions such as flood control, irrigation, sand (silt/sediment) retention and navigation. During the planning and construction, the benefits of the downstream countries were taken into consideration. For example, in conducting the feasibility study for the Jinghong Hydropower Station, Thailand was invited to submit comments, and a Memorandum between the PRC and Thailand was signed on 12 November 1998 for Thailand’s purchase of 3,000 MW from the PRC by 2017. The Lancang/Mekong River Basin has 13.5 million hectares of cultivated land, which is prone to flooding in the summer and lacks irrigation in winter. Vietnam is concerned about the danger of increasing sea-water intrusion in the fertile Mekong Delta in case the water level drops during the dry season. When the Xiaowan Power Station starts operating, however, a 292 m-high dam with water storage of 15 billion m3 will block 35 per cent

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of the silt now released into the lower reaches of the river. This will reduce the amount of water flowing downward by 17 per cent during flood seasons and increase the flow by 40 per cent in dry seasons. As a result, it will be advantageous not only to agricultural and fishery development in the northern part of Thailand and the Vientiane Plain and to facilitating navigation on the Mekong River, but also to the elimination of the risk of increasing sea-water intrusion during the dry season. When there are fewer droughts and floods, mud-rock flows and landslides will also be reduced, leading to a cleaner Lancang/Mekong River. Protecting and improving water quality The Chinese governments, central and local, have been taking positive measures to avoid polluting the Mekong River. China has launched a comprehensive project for the environmental protection of the Lancang River drainage area. According to the project, a major afforestation drive kicked off in 1999, with the aim of increasing the forest coverage rate in the area from 38 per cent at present to 50 per cent in 20 years’ time. The afforestation project will cost a total of 200 million CNY (US$24.1 million) and the tree-planting area will cover about 630,000 hectares by the year 2020. To date, over 100 hydrological monitoring stations have been set up on major tributaries of the Lancang/Mekong River, and hydrological monitoring ships are employed to monitor the River. CONCLUSION Conflicts, whether existing or potential, exist everywhere and all the time in relation to transboundary waters. According to some authors (Vinogradov, Wouters & Jones 2003: 2), the process of transforming these conflicts into the potential for cooperation has four identifiable, connected and (re) iterative phases, i.e. the legal context (the rules of international law that apply to the conflict and its resolution), from conflict to cooperation (the means used to transform the conflict into a cooperative arrangement), the agreement (the new legal framework), and implementation (how the agreement is implemented and how changing circumstances and potential new conflicts are being dealt with). The four phases cannot in fact be divided or separated absolutely, as two or three of them can in some cases be worked on simultaneously to some extent. Further, the first phase should mainly involve the application of principles rather than the particular rules of international law, particularly in the interests of avoiding potential conflicts. Experience has shown that, as regards international relations on its transboundary waters, China has addressed relations at the strategic level of national economic, ecological and state security, from the perspective of its broader diplomatic strategy, and has followed the

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principles of cooperation and negotiation, being a good neighbour and equitable and reasonable utilization. With the implementation of its western development strategy and the reconstruction of the northeast, the development of transboundary waters within its territory is unavoidable, as more and more hydro-related projects will be constructed and operated, and more and more water is withdrawn. It is therefore necessary for China to develop the law and policy in detail on its transboundary waters. The lack of sufficient law, treaties, policy and practice related to transboundary waters has made it difficult for China to deal with the increasingly busy workload. To accept the rule(s) or principle(s) developed under the domestic law of other countries, e.g. USA, Australia, Canada, etc., or bilateral or multilateral treaties or practices between or among other countries is one option if there is no political uncertainty, domestic or international. ‘But clearly, the learning from the successful cases is not universal,’ as one author has pointed out (Beach et al. 2000: 20). And there is poorly-developed international law (Bingham, Wolf & Wohlgenant 1994), especially as regards the practical rules/norms to follow. The other option is for China to develop its own rules or principles with countries that share watercourses with it. The fact that China voted against the adoption of the UN Watercourses Convention in May 1997 has revealed that China has not accepted the so-called customary international law pertinent to transboundary waters. The fact that China has not agreed to submit any dispute or potential dispute relating to transboundary waters to the International Court of Justice or to any other kind of international tribunal, however, shows that China would not like international tribunals to decide whether or not there has been existing customary international law pertinent to transboundary waters and whether such rules or principles should be applied to the case(s) concerning China, in particular under the current complicated international political situation. For example, as some authors have pointed out (Beach et al. 2000: 9), China and some other countries, e.g. Brazil, Belgium and France, object to the prominence of the drainage basin approach. It seems to be unreasonable for one to conclude that there is a rule of customary international law applicable to a country that has never conducted its state practice according to such a rule or has never thought itself bound by the rule. Just as the US Deputy Secretary of State John Negroponte stated before the Senate Foreign Relations Committee on 27 September 2007, in relation to the US ratification of the 1982 United Nations Convention on the Law of the Sea, ‘customary law is not universally accepted and, in any event, changes over time’ (Crook 2008). As to transboundary waters in particular, treaties among riparian countries should play a vital role. China’s treaty practice on its transboundary waters with most of its co-riparians may be taken as an example. The fact that most of the countries with transboundary water(s) have not ratified the 1997 UN Watercourses Convention has undoubtedly shown us that giving the framework convention or treaty more enforcement is unreasonable.

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ACKNOWLEDGEMENTS This research has been supported by the (China) National Social Science Fund Program ‘‘Study on Law and Policy of Transboundary Surface Water Resources’’ (11BFX065). Some of its contents were presented in the UN Watercourses Convention Global Initiative Symposium (5–8 June 2012, Dundee) and its main contents in the Workshop Sovereignty and the Development of International Water Law (25–26 October 2012 Bergen) respectively, and comments are grated. REFERENCES Beach, H.L., et al., Transboundary freshwater dispute resolution: Theory, practice, and annotated references (New York: United Nations University Press, 2000). Bingham, G., Wolf, A. and Wohlgenant, T., Resolving Water Disputes: Conflict and Cooperation in the United States, the Near East, and Asia (Washington, DC: U.S. Agency for International Development, 1994). Central Committee of CPC and State Council of the PRC, ‘Decision on Accelerating the Water Conservancy Reform and Development (31st December 2010)’, Gazette of the State Council of the PRC 5 (2011), pp. 5–10. Crook, J., ‘Contemporary Practice of the United States relating to International Law: International Oceans, Environment, Health, and Aviation Law’, American Journal of International Law 102 (2008), pp. 168–169. Gleick, P.H., The World’s Water 2008–2009 (Washington, Covelo and London: Island Press, 2009). He, D., Liu, C., and Yang, Z., ‘Study for the Sustainability of International Rivers in China’, ActaGeographcaSinica Supplement (1999), pp. 1–10. Hu, D., Water rights: an international and comparative study (London: IWA Publishing, 2006). ———, ‘The Role of International Tribunal in Settling Disputes on Transboundary Water Resources: Taking Case Concerning Gabcˇ´ıkovo-Nagymaros Project as a Case Study’, Journal of Chongqing University (Social Science Edition) 2 (2011), pp. 1–7. Kristensen, J., ‘‘The Mighty Mekong and its Basin, Opportunity and Challenges.’’ Prepared for the ‘‘Third International River Management Symposium’’ Brisbane, 6th–8th September 2000, available at http://www.mrcmekong.org/ media/media002a.htm, accessed on 3 November 2012. Le-Huu, T. and Nguyen, L., Mekong Case Study (Paris: UNESCO, 2003). Liu, N., ‘Vice Minister Liu Ning’s Speech in the 2011 National Hydrological Meeting (24 March 2011)’, available at http://www.mwr.gov.cn/zwzc/ldxx/ln/zyjh/2011 03/t20110330_257815.html, accessed on 3 November 2012. MRC, Annual Report 2008 (Vientiane: MRC, 2008). Solanes, M. and Gonzalea-Villarreal, F., The Dublin Principles for Water as Reflected in a Comparative Assessment of Institutional and Legal Arrangements for Integrated Water Resources Management (Stockholm: Global Water Partnership, 1999).

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The Program in Water Conflict Management and Transformation, ASIA: International River Basin register (updated August 2002), 2012, available at http://www.transboundarywaters.orst.edu/data/IRB_register/IRB_asia.html, accessed on 31 October 2012. Trombitcaia, I., et al., River Basin Commissions and other Institutions for Transboundary Water Cooperation (New York and Geneva: United Nations, 2009). UN, General Assembly, Verbatim records of plenary meeting No. 99 of 21st May 1997, UN A/51/PV.99. Vinogradov, S., Wouters, P., and Jones, P., Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law (Paris: UNESCO, 2003). Xinhua News, Scientists pinpoint sources of four major international rivers, 2011, available at http://news.xinhuanet.com/english2010/china/2011-08/22/ c_131067137.htm, accessed 31 October 2012. Zhang, J., ‘Considerations on Hydro-development of International Rivers in Xinjiang’, Social Observation 11 (2007), pp. 17–18. Zhang, W., ‘Implementing the ‘‘131’’ project and advancing hydrological modernization’, China Water Resources 15 (2004), pp. 50–51.

24

The Concept of State Sovereignty and River/ Lake Basin Law in South Eastern Europe

Slavko Bogdanovic* INTRODUCTION Discussing the customary principles and rules of international water resources law from a historic perspective, Dante Caponera (1992: 210; 2003: 177–9) indicated among other things the inter-dependence between sovereignty and freedom of commerce and navigation on international rivers. Historically, intergovernmental relations in this context were limited to several aspects; besides boundary demarcation, these included transportation (navigation), irrigation and domestic use of waters. According to his analysis of international treaties, from the earliest times, state practice shows that the principle of freedom and (of) trade prevailed over the territorial sovereignty principle. Recalling the definition in Article 1 of the Statute of Barcelona (FAO 1998: 14–15), which may provide a basis for restriction of freedom of navigation to traffic in transit only, he concluded that the ‘opposite principle of territorial sovereignty seems to prevail’ in recent times, showing the extent of the impact of current political ideas on the evolution of international water law. From the earliest studies of international water law, the relationship between international law of water resources and the territorial sovereignty principle has been a focus of researchers. This chapter is not intended to make an inventory or review of the fast-growing literature regarding the law of international watercourses (including both navigational and nonnavigational uses of international watercourses), but to indicate only some research that, in the view of the author, are important historical points for the purpose of identifying evolving trend(s). In an effort to provide information regarding state relations concerning international rivers, the British Foreign Office established a special section in Spring 1917 with the task of providing the British delegates at the forthcoming Peace Conference with necessary information on geographical, economic, historic, social, religious and political issues, respecting different countries, districts, islands, etc, with which they might have to deal. In response to wide interest, the Foreign Office decided to publish, among

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others, the study prepared by Georges Kaeckenbeeck, leading to his book on International Rivers (Kaeckenbeeck 1920: Editorial Note). This edition appears to be one of the earliest works dedicated solely to the law of international watercourses. Addressing the legal theories and principles and state practice concerning international rivers, Kaeckenbeeck also addressed the issue of state sovereignty. Discussing the freedom of navigation and commerce during ‘medieval intense particularism’, i.e. the public power of riparian feudal lords, he pointed out that many fiscal distortions developed and a right of closing the river at will to foreigners was the outcome for a long period. This state of affairs was criticised on the grounds of Roman Law and the Law of Nature (pp. 5–6). According to him, in the Roman Law, aqua profluens has been considered res publica jure gentium, and common to all citizens; the state has no ownership rights over it but only the right of supervision and policing. Consequential to its nature as a res publica jure civitatis, flowing water was at the disposal of the public for navigation and fishing and the banks for the purposes of navigation. Under the Natural Law, which was considered superior both to tradition and positive law, concepts important for the international law of water resources, such as equity, humanity, common interest, etc, were developed. He recalled the classics of this doctrine (Grotius ii 2. 11, Vattel ii section 127), which considered that an inexhaustible thing such as running water cannot be appropriated in such a way as to exclude others from using it (Kaekenbeeck 1920: 5–7). The concept of territorial sovereignty, which emerged and was set out in the 1648 Westphalia treaties, is based on the idea of the exclusive character of property. Caponera illustrates this, noting that in earlier times there was no difference between sovereignty and the private property of the prince. International law relied on private law principles applicable in regulating the rights of neighbouring landowners, which were adapted to the purpose. Such rules survived into the early nineteenth century (2001: 177). According to the doctrine, others sovereign states are excluded from interference with the territory under the sovereignty of one state. Despite the fact that the number of sovereign entities (some 200 German principalities after the Westphalia Treaty) decreased over time (to 39 sovereign states recognized at the Congress of Vienna 1815) (Aalberts 2012: 19), the concept did not change in its nature and it remains ‘the stronghold of supporters of particularism’. (Kaeckenbeeck 1920: 8) The notion of ‘sovereignty’ seems clear enough when discussed in the context of the international law of water resources. Discussion on sovereignty assumes that it is clear and does not question what sovereignty is. Perhaps that is the reason that broader consideration on the legal nature of the notion of sovereignty itself is often missing in such discourse. In reality, however, it is more likely that different constructs of the concept of sovereignty exist, offering different answers on the question of what it is. If this assumption is acceptable, and if a quest for more complex answers

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regarding the nature of sovereignty today and its impact on contemporary international water law is at stake, then a broader, multidisciplinary standpoint should be taken. Such a standpoint would involve – besides the traditional legal, policy and various engineering aspects – different views developed preferably in the theory of political sciences. As a result, the quest for a theoretical platform that would undermine the particularism attached to the very nature of sovereignty, and often visible even today (e.g. in the case of voting against the Convention on the Law of Non-Navigational Uses of International Watercourses (UN General Assembly 1997), in times of climate change and worldwide rising water problems) (See IPCC 2007: 49), would benefit from such an approach. Thus, mere insight into the historic development of international law would not be enough in such an approach but also some, even slight, insight into the development and evolution of ideas and practical illustrations of territorial sovereignty would be required. Sovereignty is a subject broadly studied and discussed contemporarily (Loughlin 2003: 72), but not specifically in connection with the law of non-navigational uses of international waters (Bourne 1997: esp. 233–83), during the last half a century. Actually, political science should be consulted in parallel with the investigation of the development of international law regarding non-navigational uses of transboundary waters. In other words, the historic dynamics of the conceptual construction of territorial sovereignty should be taken as an inter-related background to the development of related principles of international law. Even such a broad approach might be subject to an analysis of the economic driving forces lying behind and impacting upon both the development of sovereignty concepts and the principles of international law applicable to transboundary waters, and their inter-relations. For example, the concept of freedom of commerce was closely connected to the Westphalia concept of sovereignty, as Caponera and Kaeckenbeeck noted. The Rhine River, which was commercially misused by riparian princes through the imposition of ‘such outrageously expensive tolls that tradesmen preferred using alternative routes’, became a ‘corridor of development’ and not a ‘natural border’ between the French and German territories (Beaudry 2003). Here, economic development goals underlie the Westphalia concept of territorial sovereignty and connected principles of freedom of trade and freedom of navigation. Similarly, some 300 years later, in the Treaties of Rome (1957) establishing the European Economic Community, the concept of freedom of movement of people, goods, services and capital can be seen as the basis for the transfer of national sovereignties of member states onto the European Commission level. Rather than taking a classical approach and (re)thinking once more the possible theoretical models that could be applied to transboundary waters (McCaffrey 2001: 112–74), this chapter, which is limited in length, cannot provide more than a mere indication of the potential and benefit of such a

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multidisciplinary (and to a certain extent transdisciplinary) approach. It should not be seen as more than a humble indicative insight into the issues that in other circumstances could be researched in-depth and exhaustively. At the same time, the chapter is also limited to examples of the practice of the South Eastern Europe (SEE) states in the period after the 1950s and evidenced in water-related treaties (usually regarding nonnavigational uses) from that period. NOTES ON STATE SOVEREIGNTY A concise legal definition of sovereignty contained in Black’s Law Dictionary reads that sovereignty is the ‘supreme domination, authority or rule’ and also the ‘supreme political authority of an independent state’. Sovereignty has an external and an internal aspect – the external being ‘the power of dealing on a nation’s behalf with other national governments’, and the internal one being ‘the power that the ruler exercises over his or her own subjects’. A sovereign state is the ‘state that possesses an independent existence, which is complete in itself without being merely part of the larger whole to whose government it is subject. It is a political community whose members are bound together by the tie of common subjection to some central authority, whose commands those members must obey’ (1999: 1402, 1401). This distinction between the two inherent aspects of the Westphalia concept of statehood, called the Janus-faced template by Tania Aalberts, is important for understanding sovereignty as a phenomenon, showing its beautiful (internal; order) and ugly (external; anarchic in the arena where it meets with other sovereignties) faces at the same time. In this realist picture, international law appears as the only authority over sovereign states (Aalberts 2012: 14–15, quoting Judge Anzilotti in the Austria v. Germany, Advisory Opinion, PCIJ Series A/B, No. 41, 1931), regulating the area of relations that appears where sovereignties meet, i.e. the area where, as Fernando Oliveira notes, liberty of one terminates and liberty of another begins (Oliveira 2003: 349). That is the field where Principle 21 of the Stockholm Declaration (1972) limits sovereign states’ right to exploit their national resources, in accordance with the UN Charter, with responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. This principle is considered to be part of customary international law. A broader context, comprising not only damage to the water environment of an international river or another riparian/downstream country, but also the interests of others sharing the same river – when utilizing such waters, in cases of diversion, irrigations, generation of electric power, etc. – was pointed out in the early 1950s by Professor Clyde Eagleton in the form of the ‘due regard’ doctrine. According to him, the doctrine was recognized as being (as early as the 1950s) in accordance with principles recognized in

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international law. The due regard doctrine, present in state practice, assumes that an undertaking that could affect the interests of other state(s) may not be taken without previous consent given by the affected country/countries). The affected country/countries, however, must also base their consent on due regard to the interest of the country of the undertaking (International Law Association 1955: 311). The Westphalia concept of sovereignty as a pure model combining at the same time internal order and external anarchy at the international level with the mutually recognized territorial demarcations, has often been questioned in recent decades due to the changes in important international realities. After World War II, developments in international relations connected to the processes of European Union (EU) integration and the process of decolonization have been seen as new ‘winds of change’, suggesting that the Westphalia model is outmoded and that a new, postmodern, post-Westphalia era have arrived, bringing transgression and a blurring of the clear separation between internal and external affairs, and introducing a variety of new actors (besides sovereign states) in the international arena (Aalberts 2012: 20). The EU is an example of the concept of multilevel governance, where authority (i.e., transfer of sovereignty) has shifted to the EU level. At the same time, a tendency to increase the share of internal sovereignty between the state and a variety of subjects at the sub-national levels has also undermined Westphalian conceptual clarity on the division between the international and national (Aalberts 2012: 23). Some important aspects of state practice regarding SEE transboundary waters will be commented on later in the light of those conceptual changes (or the perception of such changes) in territorial sovereignty. These aspects can be seen at least in clear political commitment, expressed in the form of policy or soft law instruments, preceding the conclusion of several multilateral treaties, which are important in creating the political environment in which contemporary state practice originates. Another, opposing, trend has been identified and is developing currently in Sub-Saharan Africa, denominated as ‘quasi-statehood’ and ‘state-failure’ – the post-colonial phase of development of the sovereignty concept (Aalberts 2012: 20, 30). This will not be looked into in greater detail in this chapter as an environment for the potential development of state practice regarding water-related issues, despite the fact that the sovereignty of Kosovo, challenged persistently by Serbia, would deserve such highlighting, as well as the limited recognition of several more territories in the Northern Hemisphere (e.g., Transnistria and South Ossetia). However, that aspect seems even more challenging with regards to further investigation, particularly in view of the Robert Kaplan’s apocalyptic description, following the German geographer Carl Ritter, of the ‘Last Map’ (The Coming Anarchy 1994), quoted by Tania Aalberts: (2012: 36)

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Imagine cartography in three dimensions, as if in a hologram. In this hologram would be the overlapping sediments of group and other identities atop the merely two-dimensional colour markings of city-states and the remaining nations, themselves confused in places by shadowy tentacles, hovering overhead indicating the power of drug cartels, mafias and private security agencies. Instead of borders, there would be moving ‘centres’ of power, as in the Middle Ages. Many of these layers would be in motion. Replacing fixed and abrupt lines of a flat space would be a shifting pattern of buffer entities, like the Kurdish and Azeri buffer entities between Turkey and Iran [...]. To this protean cartographic hologram one must add other factors, such as migrations of populations, explosions of birth rates, vectors of disease. Henceforward the map of the world will never be static. This future map – in a sense, the ‘Last Map’ – will be an ever-mutating representation of chaos.

One remarkably important trend, mentioned above, also cannot be dealt with in this chapter. That is the capacity of sovereign entities to cope with climate change (Kaplan 1994) and the impact of such change on the interrelation between sovereignty and principles of international law applicable to waters shared between (potentially affected) countries. TREATY PRACTICE IN SOUTH EASTERN EUROPE Introductory note In the SEE region, international water treaties were used for decades for regulating bilateral, and sometimes trilateral and multilateral riparian relations. The SEE region is rich in water resources, many of which were always international while others became transboundary after the collapse of Socialist Federal Republic of Yugoslavia and the rise of newly independent countries. Concluding water treaties brought stability and seriously diminished the possibility of disputes emerging, such as those involving the Nile, Indus, Jordan or Columbia Rivers, which were the impetus for a halfa-century of exhaustive work on international water law by the International Law Association (Bogdanovic 2011: 78). For the purposes of this chapter, the period from the 1950s onwards can be roughly divided into two segments – the period before the fall of the Berlin Wall in 1989, and the period after this time. The political and philosophical concepts lying behind the water treaties concluded in each of these periods looks different if analysed from the viewpoint of sovereignty. It is still too early to define the prospect of a newlyemerging era; however some indications should be noted. Old water treaties (1950s–80s) During the 1950s and 1960s and later, besides the Belgrade Convention Regarding the Danube Navigation Regime (Belgrade Convention 1948),

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numerous bilateral, trilateral and multilateral water treaties were signed between Socialistic Federal Republic of Yugoslavia and neighbouring countries (Austria, Hungary, Romania, Bulgaria, Greece and Italy). The purposes of these agreements were varied, including cooperation between water authorities, river basin research and development and use of water resources (drainage and improvement), flood control, water protection, fisheries and navigation, exchange of hydro-meteorological data, etc (Bogdanovic 2005:81, 2011: 79–80). No explicitly formulated principles on which the treaties were based were to be found in their texts or in the statutes of the mixed or joint commissions provided for by the treaties. Mixed or joint commissions, composed of an equal number of representatives from each party, were never established as independent international bodies (the exception being the Danube Commission, established by the 1948 Belgrade Convention). Their scope of competence follows a similar pattern, with small differences between them where they have been adjusted to the purpose and natural features of each particular case. They were competent for consideration of the issues set out under the scope of each instrument, e.g. technical evaluation of proposed hydraulic projects, proposing the undertaking of measures and hydraulic works, proposing the works should be executed, taking care on the execution of decisions and measures taken, etc. Their work is always addressed to the governments. Their conclusions and proposals could be executed after the decisions of the governments involved. In some cases, their proposals may be executed if no one government objects to the proposals in a period of, for example, two or three months. There are cases in which governments expresis verbis retain the right directly to consider issues in the competence of the mixed commissions. In conclusion, it could be said that these agreements have mainly regulated cooperation between the competent administrations of the states having shared waters. They never covered river basins, and institutional mechanisms were rudimentary ones, under the strict control of the government; or, said in other words: under the ‘multi-layered’ control of sovereignty – in terms of steering the work of the institutional mechanism in all phases of cooperation, with a possibility to take over competence, and control the situation in the case of a dispute, etc. These treaties merely reflect the need of the states involved, across both sides of the ‘iron curtain’ dividing Europe into East and West, to resolve their development/economic problems connected to shared waters. New bilateral treaties (after 1989) After the fall of the Berlin Wall and dissolution of Yugoslavia, bilateral water treaties appeared in the SEE region as an instant remedial solution for problems arising from the new international status of previously national rivers. In parallel with the consolidation and development of these bilateral relations, a process has evolved in Europe of the development of a massive-

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scale multilateral cooperation regarding environmental and water issues at different levels, but always comprising SEE. New concepts and environmental ideas and newly-formulated principles of cooperation and law were introduced onto the international legal stage. The bilateral treaties, now functioning in the shadow of these new multilateral legal and institutional constructions, might seem less important but their role is irreplaceable. They are the basis of the system. Moreover, the new multilateral treaties encourage the conclusion of bilateral treaties aimed at more detailed regulation of specific issues within the framework of broadly established multilateral relations. In this way, they have their clearly-defined new role in the frameworks of the growing construction of multi-layer environmental governance in Europe, and consequently in the SEE. As part of a huge governance system, they must be coherent and consistent with upper layers of the system, i.e. with international treaties covering broader territory or regulating more general issues in such territory. Challenge might arise when such basic treaties diverge from the broader legal frameworks (Bogdanovic 2011: 84–7). New multilateral treaties Besides the multilateral environmental agreements (MEAs) concluded under the aegis of UN Economic Commission for Europe (UNECE), such as the Espoo Convention (UNECE 1991) and Water Convention, (UNECE 1992) several important multilateral water treaties were developed and concluded in the SEE during the 1990s and 2000s. Those new multilateral water treaties include the Danube River Protection Convention (DRPC 1994), the Framework Agreement on the Sava River Basin (FASRB 2002) and the Agreement on the Protection and Sustainable Development of the Prespa Park Area (the Prespa Agreement 2010). Having regard to the overall picture of European construction of multi-layered water governance, composed of the treaties relating to the entire region of Europe, comprising the 56 countries of UNECE, the EU water policy legislation, intended to be in accordance with UNECE MEAs (making these two governance layers coherent and consistent), might be seen as a lower layer (in terms of more concrete norms, applicable only in the territory of 28 EU member countries and the countries in the process of EU integration) in accordance with the UNECE legal regimes. The new multilateral water treaties, comprising SEE transboundary river and lake basins and being applicable in the parts of the territories of countries sharing the same river/lake basin, are the next level of the water governance construct. At the most basic level there are bilateral water treaties, as commented on above. The most comprehensive global legislative framework is the law on non-navigational uses of international watercourses, as set-out in the UN Convention on the Law of NonNavigational Uses of International Watercourses (1997). In terms of the practical implications of this multi-layer governance construction, it cannot be identified as a requirement of a ‘supra’-state for

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compliance with the entire system, because this construction has not been established as a formally-structured hierarchy. Requirements for (national) compliance with each of the layers come from particular segments (certain institutional mechanisms responsible for implementation of negotiated legislation) of transferred sovereignties. Certainly, a detailed cross-analysis would reveal attempts (commitment and expressed in the form of legal requirements in the water treaties) to harmonize each of the identified layers with both the higher and lower levels. By taking on obligations coming from the EU integration treaties, sovereign entities also take on a duty to comply with those MEAs that are part of the Community acquis, no matter whether or not they are parties to those treaties. Actually, being parties to these MEAs and subject to EU integration commitments at the same time, sovereign states in SEE often have a two-fold duty of compliance. Participation in EU integration, however, assumes acceptance of the fact that the EU provides for the enforcement (dimension) of MEAs. A specific feature of the new multilateral treaties not seen in older water treaties, along with the explicit declaration of the principles of international (water) law on which their cooperation is based, is the fact that they result from the previously-established commitments of the countries involved. This sometimes occurred through multi-year concentrated transparent efforts on the development (formulation) of the political will of the countries, i.e. of the intention of sovereign entities to confer a certain portion of their sovereignty onto the transboundary river/lake basin layer of governance. The formal expressions of these commitments are policy/ soft law instruments (declaration, statement, joint programme), which through continued cooperation led successfully to the conclusion of the aforementioned two multilateral river basin and one lake basin water treaties. It should be mentioned that in each case these were invested under the aegis of international organizations influential in the region (UNECE, the Stability Pact, Global Environment Facility (GEF) and the UN Development Programme). The specific provisions of the new multilateral water treaties applicable in the SEE region discussed here set out both the competence of an institutional mechanism established for their implementation and the legal nature of conclusions/decisions/recommendations they have been conferred the power to decide upon. Such provisions may be indicators of the scope of the power transferred by sovereign states into the inter-state or onto the ‘supra’-national zone of multilateral relations. A concise review of such provisions in all three treaties therefore follows. The Danube River Protection Convention In the case of the Danube River Basin, the 1985 Bucharest Declaration was signed by eight Danube riparian countries, which recognized the increasing degradation of water quality. These countries committed themselves to an

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integrated basin-wide approach to water management (Bucharest Declaration 1985, Varduca 1997). The commitment expressed in this document led to the development of the Environmental Programme for the Danube River Basin, aimed at adoption by each riparian country of the same monitoring system, addressing cross-border pollution through the issue of liability, defining the rules for the protection of wetland habitats, and developing and conserving areas of ecological and aesthetic values (Environmental Programme for the Danube River Basin 1991). The Strategic Action Plan for the Danube River Basin (1994) was developed and ultimately the DRPC (1994) was signed in Sofia (Bulgaria) on 29 June 1994. The Parties to the DRPC referred to the UNECE Water Convention and commended, among other things, ‘the co-operation in bilateral and multilateral levels, for the prevention and control of transboundary pollution, sustainable water management, rational use and conservation of water resources’ (Preamble, paragraph 4) in the spirit of efforts already undertaken by the Organization for Security and Co-operation in Europe, and the European Community (Bogdanovic 2005: 72). They expressed their commitment ‘to strive to achieving the goals of a sustainable and equitable water management, including the conservation, improvement and the rational use of surface waters and groundwater in the catchment area’. Objectives and principles of cooperation in the DRPC are defined as striving towards sustainable and equitable water management that shall include conservation, improvement and rational use of the surface and groundwater of the Danube catchment area, which shall be based on the implementation of the polluter pays and precautionary principles, avoiding environmental damage, prevention, control and reduction of transboundary impacts, etc (DRPC 1994: Article 2, paragraph 1). For implementation of the DRPC, the International Commission for the Protection of the Danube River (ICPDR), with the legal capacity needed for exercising its functions in accordance with the law applicable at the headquarters of the ICPDR Secretariat in Vienna, Austria (DRPC 1994; ICPDR Statute, Article 10) was established in 1998 (DRPC 1994; http://www. icpdr.org/main/icpdr). It is composed of the parties’ delegations (which may have up to five members), that have one vote in the ICPDR. The EU also has the right to vote. The presence of two-thirds of the delegations of contracting parties makes up a quorum. Decisions shall be adopted by consensus. If there is no consensus, the president should declare that every effort to reach consensus has been exhausted, and after that the decision can be adopted by a four-fifths majority of the parties present and voting (ICPDR Statute, Articles 1 and 4). The decisions shall become binding on the contracting parties on the first day of the eleventh month following the date of its adoption. Each party has the right to notify the ICPDR (the Executive Secretary) within a certain period if it is unable to accept the decision. The parties can also notify the ICPDR that they are able to accept the decision earlier (i.e. before the first day of the eleventh month). (ICPDR

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Statute, Articles 5.1 and 5.2) The contracting parties have the obligation to report to the ICPDR details regarding national measures planned for implementation of decisions of the ICPDR (DRPC, Article 10.d). The conference of the contracting parties is another high-level institutional mechanism of the ICPDR, with the authority to pass – after regular invitation recommendations and decisions by consensus – if at least three-quarters of the total number of contracting parties are present. If consensus has not been reached, it should be declared that all efforts are exhausted, and after such a declaration a decision may be adopted by a four-fifths majority of the contracting parties present and voting (DRPC, Article 22.4). The Framework Agreement on the Sava River Basin The International Sava River Basin Commission initiative was developed under the Stability Pact Working Table II and resulted in a Letter of Intent, signed by the representatives of the four the Sava River Basin countries (Stability Pact 2001). This initiative came as an authoritative impetus for multilateral cooperation in the field of transboundary waters of the newlyindependent counties of the former socialistic republics of Yugoslavia – Bosnia and Herzegovina, Croatia, Serbia and Slovenia. The signatories of the Letter of Intent expressed a commitment to protect the environment, natural resources, aquatic life and conditions and ecological balance of the Sava River Basin from pollution and other harmful effects resulting from any development plans and uses of water and related resources in the Basin. The declared principles of their cooperation included sovereign equality and territorial integrity, reasonable and equitable utilization of basin waters, prevention and cessation of harmful effects (regarding environment and water quantity and quality), state responsibility for damage, freedom of navigation (on the navigable parts of the River Sava and its tributaries), a duty of notification and consultation in cases of emergency situations, etc (Stability Pact, 2001, paragraphs 11, 12, 13, 15, 16, 17 and 18). This commitment expressed in the initiative led to intensive negotiations and eventually to the conclusion and ratification of the Framework Agreement on the Sava River Basin and the Protocol on Navigation (2002) and establishing of the Sava Commission in 2005. The declared intention to cooperate of the countries (in terms of the FASRB, the general obligation to cooperate) is aimed at the attainment of the FASRB goals: those being the establishment of an international regime of navigation for the Sava River and its navigable tributaries (inland waterways in former Yugoslavia), the establishment of sustainable water management in the Sava River Basin, and undertaking measures to prevent or limit hazards and reduce and eliminate adverse consequences caused by floods, ice hazards, droughts and incidents involving substances hazardous to water (FASRB 2002: Article 2). A general duty to cooperate was included in

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the context of the EU Water Framework Directive (2000) and based on the principles of sovereign equality, territorial integrity, mutual benefit and good faith (Article 3) of the parties to the FASRB. Following the obligation to cooperate, the parties adopted several additional duties, which are expected to make such cooperation functional – the exchange on a regular basis of information regarding the water regime of the Sava River Basin, the regime of navigation, their national legislation, institutional structure and administrative and technical practices (Article 4). They also agreed to cooperate in the realization of the FASRB, especially with the ICPDR, the Danube Commission, UNECE and the EU (Article 5). They agreed to nominate their national authorities and bodies that shall be competent for realization of the FASRB in the part of the Sava River Basin in their respective territories (Article 6). The FASRB declared that the parties are entitled, within their territories, to a reasonable and equitable share of the beneficial uses of the water resources of the Sava River Basin. When determining such reasonable and equitable share under Article 7, instead of defining relevant factors that should be taken into account, the parties only referred to the relevant international law. For utilization of the waters of the Sava River Basin in their territories, the FASRB parties accepted in Article 9 the duty to cooperate with and take all appropriate measures to prevent causing significant harm to other parties. This declaratory principle, inaccurately entitled the ‘No Harm Rule’, which is obviously away from any intention to recall the inflexible historic concept of absolute territorial sovereignty (McCaffrey 1996: 551) embodied in the famous Harmon Doctrine, actually reflects the contemporary concept of ‘no significant harm’, or ‘preventing causing significant harm’, prominent in international environmental and water law and also present in the water policy of the EU. When addressing the issue of elimination and reduction of transboundary impacts on the waters caused by economic or other activities, however, the parties did not opt to regulate the issue under the FASRB, but to leave it to be regulated by a separate protocol on permitting installations and activities that may have a transboundary impact ‘on the integrity of the water regime’ (Article 8). The International Sava River Basin Commission was established in 2005 by the parties with the aim of implementing the FASRB. The Sava Commission has the international legal capacity necessary for exercising of its functions (Article 15, paragraphs 1, 2), comprising duties relating both to navigation and non-navigational uses. The Sava Commission has the power to adopt decisions and recommendations. Decisions concerning safe navigation and the conditions for financing the construction of navigable waterways and their maintenance are binding for the parties unless any of the Sava Commission members withdraws his/her vote within 30 days after a decision has been made, or informs the Commission that the decision is subject to approval of the relevant authority of the party. Decisions of the Commission on its own work, budget and procedures are binding upon the parties, without the possibility for later withdrawal of the Commission

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member’s vote. Recommendations of the Sava Commission are not regarded as binding (Article 16). All decisions and recommendations of the Commission shall be adopted by unanimous vote (FASRB 2002, Annex I; CSRB Statute, Article 5.3). The FASRB provides for an additional institutional mechanism, the meeting of the parties, responsible for a continuous review of the implementation of the FASRB. Its decisions shall be made by consensus (FASRB 2002, Article 14). The Prespa Agreement Cooperation regarding the Prespa Lakes commenced with the declaration of the prime ministers of Albania, Greece and Macedonia (Prespa Declaration 2000) which was considered a part of ‘the all-round process of the reconstruction of SEE’ offering ‘the right opportunity to integrate our environmental concerns in such sectors as economic development and infrastructure’. The commitment of the three prime ministers stated that ‘joint actions would be considered’ and the content of the envisaged ‘considerations’ had been defined as the maintenance and protection of the unique ecological values of the ‘Prespa Park’, prevention of habitat degradation, exploration of appropriate methods for the sustainable use of Prespa Lakes’ waters and sparing no efforts for ‘Prespa Park’ to become and remain a model of its kind, as well as an additional reference to the peaceful collaboration among the three countries. During the next 10 years, this rather weak policy commitment (to ‘consider’ only) achieved remarkable results in trilateral cooperation in the designated region (the Prespa Lakes Basin) and was strongly supported by the international community (Bogdanovic 2008: 28–34). In 2009, the three ministers of environment and the EU environment commissioner of Environment Directorate-General adopted a document (the Prespa Joint Statement 2009) with a strong and clear commitment to conclude a multilateral agreement the parties that would be the three countries littoral to the Prespa Lakes, i.e. Albania, Greece and Macedonia, and the EU. This led to the signing of the Agreement on the Protection and Sustainable Development of the Prespa Park Area (Prespa Agreement 2010). The Agreement provides for establishment of the Prespa Park Management Committee (PPMC), whose main task is ensuring the effective achievement of the ambitious objectives and commitments set out by the Agreement. The PPMC, as a multilateral institution, has been conferred with international legal capacity that includes the competence to maintain direct relations with other actors on the international stage. An example is its function of liaising with the Ohrid Management Committee, which aimed at achieving the best results in the protection and sustainable development of the wider region. Besides this, its list of functions also comprises contributing to the process for the sustainable management of the extended Drin

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Basin (dialogue between Albania, Macedonia and Montenegro) as well as contributing to the mobilization of the resources of the parties and of the international community to manage the risks and mitigate negative impacts in the case of floods, forest fires and other natural or anthropogenic catastrophes, and protecting the vulnerable ecosystems of the Prespa Lakes Area and their functions and services from the effects of climate change (Prespa Agreement 2010, Article 11, paragraphs 9–11). The PPMC is also empowered with the capacity to approach donors directly in order to provide means for the implementation of the Agreement and to play a role as a steering body for GEF projects (Article 10, paragraphs 1 and 2), for example. Its functions comprise, among other things, monitoring and coordination of the activities carried out for the protection and sustainable development of the Prespa Park Area and of the Strategic Action Plan for the Sustainable Development of the Prespa Park. It is responsible for identifying the needs and recommendations of the parties to the Agreement and other stakeholders and their opinions on necessary actions, measures and activities. Particularly interesting is the function of the PPMC of providing recommendations and opinions on the drafting and application of standards, environmental criteria and requirements, completion of the regulatory framework of the watershed area, including spatial plans and protected area regulations, management plans and drafting and application of strategies, integrated management plans and programmes (Article 11.2.a-c). There can be no doubt that the measures mentioned in this provision fall within the ambit of exclusive national jurisdictions. It is to be seen how, in practice, the recommendations of the PPCM regarding these measures (which are binding by their nature) will be accepted by the parties to the Prespa Agreement. Composition of the PPMC is a sui generis case in the region; sharply differing from the other two water treaties discussed in this chapter. Diverting from all regional historic and contemporary experience, the sovereign states sharing the Prespa Lakes Basin decided to form a joint body composed not only, or solely, of their (governmental) representatives. Besides the representatives of the respective Ministries of Environment and the EU, the membership of the PPMC includes representatives of local communities in the Prespa Lakes region (one representative from each of the three municipalities from all three countries), representatives from significant local non-governmental organizations active in the Prespa region (one from each country), representatives from local protected area management authorities (one from each country), one permanent observer from the MedWet Initiative of the Ramsar Convention, and one permanent observer from the Ohrid Management Committee (Article 10.3). Decisions of the PPMC shall be taken by consensus. If there is no consensus, the issue shall be submitted to the High-Level Segment (Article 12.1). The High-Level Segment is an institutional mechanism established by

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the Prespa Agreement Article 10, composed of the ministers of environment of the parties and one representative of the EU. The recommendations of the PPMC are addressed to the parties to the Agreement, which have a duty to implement them and report regularly to the PPMC on measures adopted for their implementation (in accordance with national law). In the case of nonimplementation, the parties have the duty to inform the PPMC, to explain the reasons for non-implementation and propose the modalities and timing for implementation (Article 12, paragraphs 1–4). HUMAN RIGHT TO WATER AND STATE SOVEREIGNTY Due to the limited nature of its scope, this chapter can only point out a specific and rare situation where the two Janus faces of sovereignty meet. The human right to water has its internal and external aspects. The internal aspect comprises the SEE countries’ traditional recognition of the freedom of general use of water. That freedom, stemming from Roman times of Principate (27 BC–286 AD) and Late Empire (286–265 AD) (Caponera D. 1992: 36 and 42, respectively) has been for centuries a core part of national customary water law systems. Citizens were free to use water from natural watercourses and in certain cases from private water bodies (e.g. ponds or retentions on private land) for their personal and domestic use (drinking, bathing, washing, watering gardens without specific installations, watering herds, etc). In modern times, the freedom of general use of water has been well preserved and generally protected by national statutory water laws in the SEE countries. Examples can be found in the Hungarian Section XXIII on Water Law (1885), Croatian Law on Waters (1891), Framework Law on Waters of the Socialist Federal Republic of Yugoslavia (1965), and laws on waters of the federal units of the Socialist Federal Republic of Yugoslavia – Macedonia and Croatia (1965), Slovenia (1966), Serbia and Montenegro (1967), Bosnia and Herzegovina (1968) – or in Romanian Law on waters (1996). Legally speaking, the right of general use of waters may be classified as a citizens’ right, though it is broader in meaning: there is no need for the specific permission of public authorities for the general use of water. The internal function of sovereignty here was traditionally that of preserving that freedom, and policing its use, i.e. ensuring equality of access. The only specific case in which this freedom can be limited is for the protection of public health. Nowadays, when there is a recognized human right to water (UN General Assembly 2010), no matter whether it could be seen as one of the ‘third generation’ of human rights, i.e. not yet the part of lex lata but the ‘right in statu nascendi’ (Winkler I. T. 2012: 99), this internal aspect of sovereignty in SEE includes the application of the concept of the human right to water in the national legal frameworks. Sovereignty is expected now to have built into the existing national legal regime, i.e. besides the existing freedom of

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general use of water, a broader concept of a human right to water, requiring also that the state ensure the supply of water (in a certain minimum quantity and of such quality to satisfy public health requirements) through the public infrastructure. Actually, only the margin (difference) in the scope and substance between these two concepts – existing freedom of general use and newly-recognized human right to water – is at stake. In SEE countries, a huge parcel of that margin has been well defined in national public water utility law systems, through municipal responsibility (the competence of local governments). As one of numerous legislative examples establishing such municipal competence, one can refer to the Law on Municipal Public Utilities of the Bosnia and Herzegovina’s Herzeg-Neretva Canton (2004). It remains to be seen in future how the rest of the margin, as defined for example by Inga Winkler (2012: 151–7), of the concept of human right to water will be implemented in the SEE countries. An external aspect of the issue can be looked into from two connected aspects. Primarily, connected to the internal feature of sovereignty, sovereignty at the international level is expected to provide for, preserve and protect its citizens’ human right to water, if that right is dependent on the use of (allocation from) a transboundary water body. The aspect opposite to this would be the case of providing for, preservation and protection of transboundary water resources in its territory for the allocation of water that would enable neighbouring/riparian sovereignty to ensure the realization of human right to water of citizen subjects to that neighbouring/riparian sovereignty. This situation can be seen as an equation in which sovereign states tend to treat each other’s subjects equally. Put in a different way, the human right to water requires the sovereign states to treat other’s subjects (citizens) in the same way as their own. The human right to water should be guaranteed by sovereign states to all humans, no matter what their citizenship. CONCLUSION Sovereignty is always present. In the international arena, almost nothing is possible without sovereignty. For example, there is no water treaty without the clear commitment of sovereign parties to define unambiguously that part of their territories which is the subject of treaty implementation (e.g. the parts of the Danube and Sava Rivers and Prespa Lakes Basins discussed in this chapter). In the case of disputes (arising during implementation of a water treaty or in the absence of any such treaty), the clear (political) will of the sovereign states will lead to a resolution being found through joint actions or acceptance of the decision of a court, tribunal or arbitration. If there is no such will, the dispute will be frozen in time. There is no way to resolve a water dispute over an internationally-shared water resource without the acceptance and will of the sovereign states involved.

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The issue at stake here is whether there are trends that would change and undermine the rigid nature of sovereignty. Are there trends in the development of international water law (is there evolving law, the lege ferenda) that would contribute to undermining the sovereignty and inherent selfishness or particularism of states and enable the development of a universal and legally-binding system of rules suitable to provide adequate response to contemporary worrying situations regarding freshwater resources (McCaffrey 2001: 21)? The case of SEE water treaties and other international instruments applicable to SEE water resources seems to unambiguously show that sovereignty can be ‘undermined’ only if it accepts ‘undermining’ (i.e. diminishing/sharing/ transferring) of its power; whatever may be the reasons/drivers behind such acceptance. Thus, the correct question relates not to ‘undermining’ the concept of sovereignty, but to the rational adjustment of sovereignty. Adjustment to the contemporary necessity of close cooperation with other sovereign states, whether aimed at the achievement of sustainable development or other goals (or Millennium Development Goals), or to cope with global and regional (even grave local) problems caused by human activity or nature. Or, in other words, a change of perception of the role of sovereignty in the relations between states regarding their shared transboundary waters is at stake. In older (before the fall of the Berlin Wall) bilateral and multilateral cooperation regarding transboundary water resources of the SEE, sovereign entities did not transfer their power to take binding decisions relating to the established institutional arrangements (being formed as mixed or joint commissions or in the form of international legal personalities). Cases of specifically adjusted-to-purpose transfer of a certain portion of sovereignty onto a ‘supra’-national decision-making level are unknown in SEE, except in one case very recently (see below). The traditional institutional mechanisms are conferred only with the power to adopt (non-binding) conclusions and propose taking certain decisions to the parties of the water treaty by which they were established. Another type of transfer of power may involve the adoption or approval of proposed decisions by joint institutional mechanisms, which will become operative only after confirmation by the sovereign actors involved. In the case of non-reaction to such proposals, they shall become operative after expiration of a certain period of time (e.g. two or three months). This pattern implies that the watchdogs of sovereignty, i.e. governments, jealously monitor each step of the mixed/joint institution and are prepared to change or abandon its conclusions and proposals. Sometimes the presence of such watchdogs is not visible at first sight. However, the older treaties (from 1950s and 1960s) sometimes contained an open reservation for the sovereign power (government) to not adopt the results of the work of the joint or mixed institution. Procedures are included in order to overcome possible deadlocks that might be entrenched in the rigid application of consensus rule for taking

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decisions in the majority rules of the DRPC. Perhaps this is the way around, the possibility of using their veto by sovereign states joined at the round table of ICPDR. Further investigation of relevant state practice in the work of ICPDR would shed more light on the effectiveness of these procedures. The only real exception in known state practice in SEE (if EU integration is not taken into account) is the Prespa Park Agreement. When signing this Agreement, the parties took an exceptional step by establishing the PPMC composed of a defined number of representatives of the most important stakeholders, including influential non-governmental organizations and municipalities from the region. Furthermore, the parties accepted to implement (i.e. to be bound by) the recommendations of the PPMC in accordance with their domestic law, and to report regularly to the PPMC on measures taken for their implementation. The scope of competence of the PPMC comprises issues such as consideration and adoption of recommendations of the Working Group for Water Management (which is a body that the PPMC must establish on the basis of nominations by the parties, to serve the Committee as an authoritative technical organ) and submitting to PPMC its recommendations regarding integrated water management in accordance with the EU Water Framework Directive 2000/60/EC. This institutional construction shows that by this Agreement, Albania, Macedonia and Greece transferred their sovereign rights (to take decisions regarding their individual parts of the Prespa Lakes Basin) to the ‘supra’-national level; to a body that is not entirely (and maybe not even mainly be) under direct control of governments, but under the control of a group of national and international personalities who have been charged with sharing power over the Prespa Park in the PPMC. This sharing of sovereignty with other actors on the international stage (and at the same time with local ones, such as municipalities, which in that way directly enter the international arena) might be seen as a move into the terra incognita, a move towards a real transboundary cooperation among all actors interested in the Prespa Lakes Basin, a move towards practical implementation of the famous planetary truism that the environment does not have administrative borders, and should be managed as a unit by itself (in this case the unit is the Prespa Lakes Basin). There is no doubt that the Prespa Park Agreement provides a very solid basis for the Prespa Park, the first transboundary institutional construction of that kind in SEE, to become and remain ‘a model of its kind as well as an additional reference to the peaceful collaboration among’ (Prespa Declaration 2000) the three SEE countries. This is a change of practice, no doubt, but still – the change came due to clear commitments and the decisions of sovereign states to share power with each other and with local and international actors and to move a step forward, in the interest of the environment and ecosystem of a specific lakes basin shared among them. Moreover, control of the governance system if there are no consensual decisions in the PPMC

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remains in the hands of the High-Level Segment, an institutional mechanism composed of three environment ministers. This move might be seen as an avant-garde example of successful adaptation (perhaps it is possible to say a correction of rigidity) of sovereignty to the European multi-layer governance concept. And maybe as an enthusiastic entrance into a new era (the post-post-Fall of the Berlin Wall) that will bring a new quality into the practice of the states when constructing inter-sovereign mechanisms of governance. A new quality of the sort, to paraphrase Jean Monnett on Schuman’s Declaration (1950) (Monnet 1978: 316) that would recognize the impossibility of mere cooperation between sovereign states to provide satisfactory resolution for transboundary water management problems, and at the same time conceive of a fusion of interests of basin countries, where it should be possible to maintain an equilibrium of those interests. Finally, this case might be regarded as resulting from the assumption that the post-modern prince should ultimately give up the role of an owner of internationally-shared waters and rather accept the role of a mighty participant in a multilateral, multi-layered stewardship, or as an attempt of the prince to improve the appearance of his ugly external Janus face by moving from the exclusiveness of rigid state particularism towards a transparent and shared (transboundary) stewardship. However, it should never be overlooked that the entire system is based on a treaty: in any case the sovereign states are here, as Krasner pointed out in the EU case Herren der Vertrag (Aalberts 2012: 38) (masters of treaty). It seems that only the perception, but not the basic concept of the prince’s role, can be successfully changed: may it be concluded from the latest SEE state practice that he is ready to accept change? NOTE * The author would like to thank Remi de Jong for his helpful comments and Paul Tempany for assisting with editing this chapter.

REFERENCES Agreement on the Protection and Sustainable Development of the Prespa Park Area, Pyli, Greece, 2010, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri ¼OJ:L:2011:258:0002:0008:EN:PDF, accessed on 2 December 2012. Aalberts, T.E., Constructing Sovereignty between Politics and Law (London; New Yorkn NY: Routledge, 2012). Avramoski, O., Kycyku, S., Naumoski, T., Panovski, D., Puka, V., Selfo, L.: (s.a.). Lake Ohrid Experience and Lessons Learned Brief. Available at: http://projects. inweh.unu.edu/inweh/display.php?ID¼4228, accessed 17 October 2014.

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Beaudry, P., ‘The Economic that Made the Peace of Westphalia,’ Executive Intelligence Review 30/21 (2003). Belgrade Convention, Convention Regarding the Regime of Navigation on the Danube. Belgrade, 1948. Available at: http://danubecommission.org/flipbooks/ c_en/index.htm, accessed on 28 November 2012. Bogdanovic, S., ‘Legal aspects of Transboundary Water Management in the Danube Basin; Large Rivers’, Arch. Hydrobiol. 158/1 (2005), pp. 1–2 ———, Prespa Park Coordination Committee in Transboundary Ecosystem Management; Final Technical Assessment Report; GEF and UNDP Home based FYR Macedonia Project ‘Integrated Ecosystem Management in the Prespa Lakes Basin of Albania, FYR of Macedonia and Greece, Ref. No. MCD/07/HR/03, Novi Sda, 2008. Available at: http://iwlearn.net/iw-projects/ 1537/reports/integrated-ecosystem-management-in-the-prespa-lakes-basin/vi ew, accessed on 28 September 2012 ———, ‘The Impact of International Treaties on Water Management in SEE’, in Montini, M. and Bogdanovic, S. (Eds), Environmental Security in SouthEastern Europe – International Agreements and their Implementation (The NATO Science for Peace and Security Programme, Springer, 2011), pp. 77–93. Bourne, Charles B., International Water Law – Selected Papers of Professor Charles B. Bourne (London; The Hague; Boston, MA: Kluwer Law International, 1997). Bucharest Declaration, Declaration of the Danube Countries to Cooperate on Questions Concerning the Water Management of the Danube, 1995. Available at: http://www.icpdr.org/main/icpdr/short-history-cooperation, accessed on 1 December 2012. Caponera, D., Principles of Water Law and Administration – National and International (A. A. Balkema, Rotterdam, Brookfield, 1992). ———, National and International Water Law and Administration – Selected Writings (The Hague; London; New York, NY: Kluwer Law International, 2003). Danube River Protection Convention, Sofia, 1994, http://www.icpdr.org/main/i cpdr, accessed on 2 December 2012. Declaration on the Creation of the Prespa Park and the Environmental protection and Sustainable Development of the Prespa Lakes and their Surroundings, 2 February 2000, Aghios Germanos, Greece, 2002, http://www.spp.gr/spp/ declaration_en.pdf, accessed on 20 December 2012. Environmental Programme for the Danube River Basin, Sofia, 1991, http://iwlearn. net/iw-projects/399, accessed on 1 December 2012. EU, Directive 2000/60/EC of the European Parliament and the Council of October 23, 2000, Establishing a Framework for Community Activities in the Field of Water Policy, 2000, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri¼OJ: L:2000:327:0001:0072:EN:PDF, accessed on 2 December 2012. FAO, Sources of International Water Law, FAO Legislative Studies. No. 65, Rome, 1998. Framework Agreement on the Sava River Basin, Kranjska Gora, 2002, http://www.s avacommission.org/dms/docs/dokumenti/documents_publications/basic_ documents/fasrb.pdf, accessed on 2 December 2012. Garner, Brian A., Black’s Law Dictionary, 7th ed. (St Paul, MN: West Group, 1999). International Law Association, International Law Association Report on the FortySixth Conference held at Edinburgh 1954 (UK: ILA, 1955)

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Intergovernmental Panel on Climate Change, Climate Change 2007 Synthesis Report, 2007. www.IPCC.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf, accessed on 12 March 2013. Kaeckenbeeck, G., International Rivers (HMSO, London, 1920). Kaplan, R., The Coming Anarchy, Atlantic Monthly, February 1994, p. 273, http:// www.theatlantic.com/magazine/archive/1994/02/the-coming-anarchy/304670/, accessed on 1 December 2012. Letter of Intent Concerning the International Sava Basin Commission Initiative, Stability Pact, 2001, http://www.stabilitypact.org/sava/letter-of-intent.asp, accessed on 2 December 2012. Loughlin, M., The Idea of Public Law (Oxford: Oxford University Press, 2003). Malanczuk, P., Akerhurt’s Modern Introduction to International Law, 7th rev. ed. (London and New York, NY: Routledge, 1997). McCaffrey, S.C., The Law of International Watercourses – Non-Navigational Uses (New York, NY: Oxford University Press, 2001). ———, ‘The Harmon Doctrine One Hundred Years Later: Buried, Not Prised,’ Natural Resources Journal, 36 (1996), pp. 549–590. Monnet, J., Memoirs (New York, NY: Doubleday and Co., 1978). Oliveira, F., ‘Conditiones environnementales attache´es `a l’aide au de´veloppement: ´ecologie contre souverainete’, in Bothe, M. and Sands, P. (eds), Environmental Policy – from Regulation to Economic Instruments (The Hague; Boston, MA, London: Martinus Nijhof Publishers, 2003), pp. 349–364. Prerspa Joint Statement, 2009, http://www.ramsar.org/pdf/wwd/10/wwd2010_rpts _prespa_agreement.pdf, accessed on 2 December 2012. Protocol on the Navigation Regime to the Framework Agreement on the Sava River Basin, Kranjska Gora, 2002, http://www.savacommission.org/dms/docs/ dokumenti/documents_publications/basic_documents/protocol_on_navigation_ regime.pdf, accessed on 2 December 2012. Strategic Action Plan for the Danube River Basin, Bucharest, 1994, http://www.ceit. sk/wwwisis/sap1.htm, accessed on 1 December 2012. United Nations, Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 1997, http://untreaty.un.org/ilc/texts/ instruments/english/conventions/8_3_1997.pdf. ———, Declaration of the United Nation Conference on Human Environment, Stockholm, 1972, http://www.unep.org/Documents.Multilingual/Default.asp? documentid¼97andarticleid¼1503, accessed on 6 June 2013. UN Economic Commission for Europe, Convention on environmental impact assessment in a transboundary context (Espoo Covention), 1991, http://www. unece.org/fileadmin/DAM/env/eia/documents/legaltexts/conventiontextenglis h.pdf, accessed on 6 June 2013. ———, Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992, http://www.unece.org/fileadmin/DAM/env/ water/pdf/watercon.pdf, accessed on 8 August 2014. UN General Assembly, Press Release 22 May 1997 GA/9248, ANNEX, http://www.un. org/News/Press/docs/1997/19970521.ga9248.html, accessed on 30 November 2012. ———, Declaration of the United Nation Conference on Human Environment, Stockholm, 1972, http://www.unep.org/Documents.Multilingual/Default.asp? documentid¼97andarticleid¼1503, accessed on 6 June 2013.

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Resolution A/Res/64/292, United Nations General Assembly, General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Right, 2010, http://www.un.org/news/press/docs/2010/ga10967.doc.htm, accessed on 1 December 2012. Varduca, A., ‘The 1985 Bucharest Declaration – an Important Step Towards Danube water protection’, in Murphy, I.L. (Ed.), Protecting Danube River Basin Resources (Netherlands: Kluwer Academic Publishers, 1997), pp. 31–41. Winkler, I.T., The Human Right to Water – Significance, Legal Status and Implications for Water Allocation (Oxford; Portland, OR: Hart Publishing, 2012).

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Development of European Water Law and State Sovereignty

Christoph Vedder and Stefan Lorenzmeier INTRODUCTION This chapter will address different levels of international and European regulation. First, understood as the water law of the European Union (EU) and its 28 member states, EU water law is quite distinct from the applicable international rules outlined earlier in this book. The law of the EU can be defined as an international self-contained regime for the EU (International Court of Justice (ICJ), Tehran Hostages paragraph 38: Simma/Pulkowski, 485, Kunig paragraph 15) in which special legal rules are applicable that supersede other international rules, which can only be applied in the case of a lacuna (ECJ Racke paragraph 37 et seq). In the famous words of the European Court of Justice (ECJ) in its Van Gend and Loos judgment, the [then] ‘EEC Treaty has created an autonomous legal order that is distinct from public international law’ (p. 1/12). Second, as far as regional international law is concerned, the Economic Commission for Europe (ECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992, as amended and including its additional Protocols on Water and Health and Civil Liability) deserves special mention (see McCaffrey: 19 ff). Besides its member states, the EU is also a party to the ECE Convention, which developed from a regional treaty into a global framework for international water cooperation. In light of the named aspects of the problem, this chapter will focus on the water law regime of the EU and will not address other European water law systems in depth. To this aim, the internal and external EU legal order for water law and its impact on the state sovereignty of its member states will be scrutinized. Two preliminary remarks on the European legal system are necessary for introductory purposes. First, the water law of the EU as our subject-matter covers all inland waters. Its development is mainly part of the broader corpus of EU environmental law, as long as it is not covered predominantly by other Union competences like the free movement of goods or services (Lorenzmeier 2013: 11 ff). Besides the named conventions for improving international cooperation in water law matters,

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the regulation of water law by the EU, which also impacts the water law of the European Economic Area (EEA) countries, will be explored. Second, the relationship between the Union and its member states is regulated by the principle of supremacy of EU law, which is rather special in international law. The principle, which is only enshrined in the declaration number 17 annexed to the Treaty of Lisbon, is not part of the Union’s primary or secondary legal order, but it can be deducted from Article 4, paragraph 3 of the Treaty on the European Union (TEU) (Schu ¨tze: 357, Woods/Watson: 88) as well. It states that, in the case of conflict between a national and Union rule, the latter applies in the given context (ECJ, Costa/ENEL: 1271) and not the national law. Despite its clear limitation of the sovereignty of the EU member states, the principle is nowadays a widely accepted principle of EU law. Otherwise, the object and purpose of the EU, i.e. the establishment of a single, harmonized legal system in the areas covered by the Treaties, could not be achieved (For the case-law development in this regard, see Hummer/Vedder/ Lorenzmeier: 38 ff). In this respect it is important to note that, according to Article 345 Treaty on the Functioning of the European Union (TFEU), the EU legal order does not apply to the national systems of property ownership. Thus, the member states can still enact their independent system of ownership of water laws (e.g., for Germany: Risini 2013: 123 f., for Austria: Sperlich/Lorenzmeier 2013: 156 f., general: Caponera 1992: 113 ff). The exception does not address the use of the ownership right, which may fall within the ambit of the EU treaties. Moreover, the right to use water resources can be part of the property belonging to a person or constitute a separate right, which depends on each national law. Yet, at the moment that a free-flowing water resource is captured it can be part of the property laws of the states, which is, for instance, the case in Germany and the US (For the latter, see Sax et al.: 20 et seq for the concepts of ‘riparianism’ and ‘prior appropriation’). The term ‘capture’ has to be understood broadly and it covers any exertion of a human will on natural waters that changes the natural state of the water resource (Lorenzmeier 2013: 4). DEVELOPMENT OF EUROPEAN WATER LAW EU water law is a rather new field of regulation in the Union, and it is a part of the scope of the Union’s environmental competence. EU water law covers many different regulatory aspects, namely the management of river basins, pollution of waters, drinking and bathing water quality, and the problems of drought and flooding (See Commission, Water Blueprint 2013). The oldest environmental secondary legislative act of the EU is the directive on the quality of bathing water from 1975 (76/160/EEC, OJ 1976 L 31/1, repealed by Directive 2006/7EC) based on what is now Articles 115 and 352 TFEU due to a lack of a special competence for environmental

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matters under the former European Economic Community (EEC) Treaty. Articles 115 and 352 TFEU are open competences, which can hardly be considered as a proper tool for enacting a set of provisions for the protection of the environment or a harmonized system of water law rules. Hence, it was widely accepted that an expressly stated competence for the Union for the regulation of environmental matters had to be inserted into the EEC Treaty. This was done by the Single European Act in 1986 and the special competence became Article 130s of the European Community Treaty (now Article 192 TFEU), which led to the adoption of a number of further secondary acts on a wide variety of water-related issues, namely: .

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Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327/1). Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (OJ 2007 L 288/27). Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135/40). Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330/32). Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31/1; as of 2014: Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality, OJ 2006 L 64/37). Council Directive 2006/44/EC of 6 September 2006 on the quality of fresh waters needing protection or improvement in order to support fish life (OJ 2006 L 264/20). Directive 2006/113/EC of the European Parliament and of the Council of 12 December 2006 on the quality required of shellfish waters (OJ 2006 L 376/14). Council Decision 95/308/EC of 24 July 1995 on the conclusion, on behalf of the Community, of the Convention on the protection and use of trans-boundary watercourses and international lakes (Helsinki Convention, OJ 1995 L 186/42). Council Decision 2000/706/EC of 7 November 2000 concerning the conclusion, on behalf of the Community, of the Convention for the Protection of the Rhine (OJ 2000 L 289/30). Council Decision 98/249/EC of 7 October 1997 on the conclusion of the convention for the protection of the marine environment of the NorthEast Atlantic (Oslo and Paris Conventions, OJ 1998 L 104/1).

As can be seen from the list above, the development of EU water law is not only very recent, but it is not very homogenous in addressing a number of

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different issues. It could hence be argued that the insertion of a special competence for environmental matters in the treaties was not necessary. Yet, it has to be kept in mind that this piecemeal approach is partly due to the intra-sectorial regulatory approach of the Union, which addresses just parts of a subject area. Further, a general approach could be at odds with the principle of subsidiarity (see below) and, thus, the regulatory competence of the member states. The general Water Framework Directive (WFD) establishes a framework for Union harmonization of water law issues and will be analysed infra. Due to European Union’s very close relationship with some European Free Trade Association countries under the EEA Agreement, some internal legal acts of the Union can also be relevant for the EEA member states. In respect of water law, the relations of the EU with the EEA have to be analysed on an individual basis for every secondary legal act of the Union. The acts with relevance for the EEA Agreement are listed in Annex XX part II – ‘Water’ of the EEA Agreement – and are generally concerned with the protection of the aquatic environment or with the quality of water resources for human consumption. Interestingly, the WFD as the main secondary legal act of the EU is not mentioned and thus of no relevance for the EEA. Very important is the EU’s consideration of water as a special resource and not as a commercial product like any other. It is a ‘heritage which must be protected, defended and treated’ as such (Water Framework Directive, OJ 2000 L 327/1, preamble, paragraph 1). Water services are seen as a service of general interest in the meaning of Article 14 of the TFEU and is keeping them largely separate from the requirement of a liberalized market. COMPETENCES OF THE EU IN RESPECT OF WATER LAW As stated above and confirmed by the list of EU water law measures, the powers of the EU concerning issues of water law are covering inter alia fresh waters. After a general introduction into the system of EU competences and its effect on the sovereignty of its member states, both issues will be addressed in turn. Introduction The EU is mainly based upon two different yet interrelated treaties, the TEU and the TFEU. One of the fundamental principles of the EU is the principle of supremacy as explained above. It applies for primary and secondary EU law. For the derived, secondary Union law, the supremacy of EU law applies only if the Union enjoys the legislative power for the enactment of a directive or regulation that has to be expressly granted by the member states for the act in question under Article 5, TEU (‘principle of conferral’), as enumerated in Articles 3–6 of the TFEU.

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The EU competences for water law have to be divided into internal and external competences. Generally, water law regulation is part of the category of environmental law, which is a shared competence between the Union and its member states (Article 4 paragraph 2 lit. e TFEU) and for which the subsidiarity principle has to be respected (Article 5, paragraph 3 TEU and the Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality (see Woods/Watson 2012: 56 ff.)). Shared competence means that, in accordance with Article 2, paragraph 2 TFEU, the EU and the member states may enact legislative acts, yet if the EU has adopted a rule the member states can no longer exercise their competence unless the Union ceases to exercise its competence. Hence, the sovereignty of the member states is inexistent if the Union has exercised its competence. Internal competence The internal EU competence for enacting secondary rules on water law is threefold. First, an act can be based on Article 192, paragraph 1 TFEU in accordance with the ordinary legislative procedure laid down in Articles 289 and 294 TFEU, i.e. that an ‘action’ can only be adopted with the approval of the European Parliament and a majority decision in the Council. Second, measures concerning the quantitative management or affecting, directly or indirectly, the availability of water resources can only be enacted in accordance with Article 192 pax‘ra. 2 lit. b second alinea TFEU, which means by a unanimous decision of the Council without the approval of the European Parliament. The reason for this distinction is the sensitivity of the availability of water resources for member states. As an exception to the general rule embodied in paragraph 1, the provision has to be interpreted strictly and covers exclusively quantitative measures and not measures regarding the quality of water resources that have to be enacted in accordance with paragraph 1, such as the WFD or the Directive on Drinking Water Quality. Both legal grounds can only be used to attain the environmental goals of the Union laid down in Article 191 TFEU. The third legal basis for internal water law regulation is Article 114, paragraph 1 TFEU on the approximation of national laws if the respective measure is concerned with the establishment or the functioning of the internal market as defined in Article 26, paragraph 2 TFEU. The limits of the provision have been explored by the ECJ in its Tobacco Advertising ruling (C-376/98, Germany v. Parliament and Council, ECR 2000, I-8419) stating that a measure adopted under Article 114, paragraph 84 TFEU must genuinely have as its object the improvement of the establishment and functioning of the internal market (ECJ, C-376/98, paragraph 84). Moreover, the distinction between the legal bases of Article 192, paragraphs 1 and 2 TFEU on the one hand and Article 114 TFEU on the other hand is difficult. The ECJ ruled in this regard that the one has to look

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for the predominant purpose for the legal basis of the act in question (ECJ, C-491/01, British American Tobacco, paragraph 94). In exceptional cases, if an act does not have an identifiable predominant purpose, it can be based on two legal grounds, yet only if for both bases the same procedural rules are applicable (ECJ, C-178/03, Chemicals, paragraph 57). As such, water law measures may usually fall within the ambit of Article 192 TFEU as the legislative history also shows (See the above-mentioned directives, yet the proposal for the concessions directive [which covers also water services] is based upon Article 114 TFEU but this act is not predominantly concerned with the protection of the environment). Further, in both fields the member states can derogate from the EU measure in accordance with Article 193 and Article 114, paragraphs 4 and 5 TFEU. This is a very strong tool for reinforcing the competence of the member states and their state sovereignty. The object and purpose of this derogation is the strengthening of the protection of the environment. According to Article 193, which applies only for environmental measures, the member states can maintain or introduce more stringent measures than the Union if these measures are compatible with the treaties, especially the basic freedoms. Article 114, paragraphs 4 and 5 TFEU establish a similar regime for the approximation of laws. As a result, internally the member states of the EU have transferred their legislative power to the Union in questions of water law that fall within the scope of either Article 192 or Article 114 TFEU. They retain their regulatory competence in two different cases. In the issues stated explicitly in Article 192, paragraph 2 TFEU due to the requirement of unanimity prior to the adoption of a measure and due to Articles 193 and 114, paragraphs 4 and 5 TFEU after the adoption of an act. State sovereignty is much better protected by the first means because if a state does not vote in favour of an act, no supreme Union measure will be adopted; whereas in the latter case the secondary Union act will always establish a minimum standard that has to be followed by the member states. External competence As the EU has concluded some treaties concerning water law, it is necessary to scrutinize the legal basis of the EU’s external action. This is rather problematic in light of the principle of conferred competences. First, Article 192 TFEU covers only the internal competence of the EU. Second, Article 191, paragraph 4, subparagraph 1 TFEU, according to which the ‘Union and the Member States shall cooperate with third countries and with the competent international organisations’, does not grant an external competence to the Union (Nettesheim, Article 191 AEUV, paragraph 149). Even the second sentence of the provision, according to which ‘the arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned’, is not a competence

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on its own but only a restatement of an already pre-existing implied Union competence (ECJ, opinion 2/00, Cartagena, ECR 2001, I-9713, paragraph 43 f. for the legal regime prior to the entry of the Treaty of Lisbon). The provision establishes only a competence for acts that are below the threshold of an international treaty (Nettesheim, Article 191 AEUV, paragraph 157). The external treaty competence of the EU in environmental law matters is therefore not explicitly mentioned in the EU treaties. In these instances, the ECJ accepted the implied powers doctrine as an unwritten competence for the Union (ECJ, ERTA 1971, paragraph 15/19 et seq., Vedder: 98 ff, Eeckhout: 70 ff). The case law of the ECJ had been summarized and consolidated by the Court in its Opinion 1/03 on the Lugano Convention (Opinion 1/03, paragraphs 114–33.). The Court held basically that a comprehensive and detailed analysis must be carried out to determine whether the Community has the competence to conclude an international agreement and whether that competence is exclusive [or shared]. In doing so, account must be taken not only of the area covered by the Community rules and by the provisions of the agreement envisaged, insofar as the latter are known, but also of the nature and content of those rules and those provisions, to ensure that the agreement is not capable of undermining the uniform and consistent application of the Community rules and the proper functioning of the system which they establish (Opinion 1/03, paragraph 133).

Since the implementation of the Lisbon Treaty, the case law of the Court has been largely enshrined in Article 3, paragraph 2, and Article 216, paragraph 1, second part TFEU. The provisions are not fully congruent but this divergence is due to the different tasks of the said norms, being a provision establishing a type of competence (Article 3, paragraph 2, TFEU) and a goal of the Union (Article 216, paragraph 1 TFEU). Therefore, Article 3, paragraph 2 TFEU now confers an exclusive implied competence ‘when (the) conclusion (of an international agreement) is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope’. The reason for the differentiation between internal and external competences is two-fold. First, in the enumerated cases an internal act of the Union already exists and the member states are internally barred from any legislative action in this regard. Second, external relations are a sensitive subject matter. Article 3, paragraph 2 TFEU accepts that the EU has to ‘speak with one voice’, which can only be achieved effectively by means of an exclusive competence. Yet, it has to be kept in mind that exclusive external competence can only be used if the enumerated conditions of the norm are fulfilled. If this is not the case, the external competence is shared and runs in parallel to the internal one.

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It is disputed whether Article 193 TFEU also applies in an external context and whether member states can derogate from the Union rules for an improved protection of water resources. The negative opinion argues that Article 193 TFEU does not establish a right for member states to act internationally with regard to third states because of the threat that these obligations may limit the possible field of external action of the Union (ECJ, Stockholm Convention, paragraph 102 et seq., Nettesheim, Article 193 AEUV, paragraph 6). Otherwise the Union, which is also a member of the respective treaty, could be bound by the action of a member state (ECJ, Stockholm Convention, paragraph 102). Additionally, the introduction of such a binding obligation could not be in accordance with the politics of the EU, and as such would constitute a violation of Article 4, paragraph 3 TEU, which regulates the principle of loyalty between the member states and the Union. Note has be taken, however, of the Court’s ruling that Article 193 TFEU is an indicator for the type of external competence, i.e. that the external competence of the Union in environmental law matters is not exclusive, but shared between the Union and its member states (ECJ, Mox Plant, paragraph 92). These opposing statements are hard to reconcile. In the Stockholm Convention case, the ECJ followed the classical external relations doctrine that an exercised internal competence becomes exclusive in the international relations, which is now laid down in Article 3, paragraph 2 TFEU. Thus, in respect of international relations, the member states are barred from enacting more stringent rules than the Union and their state sovereignty is limited by the Court’s interpretation of the Treaties. On close examination, several primary norms of EU law are in conflict, namely Article 4, paragraph 3 TEU, Article 216, paragraph 2 TFEU and Article 193 TFEU (see Eeckhout: 254, who relies on the precautionary principle as well, p. 255). The problem can be resolved by having a close look at each individual conflict. The relation between Article 216, paragraph 2 TFEU, by which the ‘agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’, and Article 193 TFEU has to be solved by granting priority to the latter provision, and that the primary provision of Article 193 TFEU enjoys priority over the concluded agreements of the Union because the agreements of the Union have to be in accordance with primary law (see Article 218, paragraph 11 TFEU). Moreover, the second line of conflict is between Article 4, paragraph 3 TEU and Article 193 TFEU. In its Stockholm Convention ruling, the ECJ granted priority over Article 4, paragraph 3 TFEU to Article 193 TFEU. This is not fully convincing. Although Article 4, paragraph 3 TEU requires member states to facilitate the achievement of the Community’s tasks and to abstain from any measure that could jeopardize the attainment of the objectives of the Treaty (ECJ, Stockholm Convention, paragraph 69, Opinion 1/03, Lugano Convention, paragraph 119, and Mox Plant, paragraph 174), the

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provision, at the outset, enjoys the same judicial importance as Article 193 TFEU. There is no expressly stated priority between different rules of primary law enshrined in the treaties. Such a hierarchy has to be found by means of interpretation (ECJ, Kadi II, paragraph 280 et seq). The Court in the Stockholm Convention case seems to accept that the external binding of the Union by the sole action of one member state would constitute such a reason for differentiating between same-level norms, although the competence in external environmental and water law matters is shared. This interpretation runs counter to one of the special objectives of the treaty, the protection of the environment (Article 3 paragraphs 3, 5 and Article 11 TFEU). The goals of the Union, which reflect the object and purpose of the Treaties and are laid down in Article 3 TEU and elaborated on in the respective provisions of the TEU and the TFEU, are important for the substantive legal order of the Union, while Article 4, paragraph 3 forms a part of the division of competences between the EU and its member states and does not entail a specific regulatory content. In this context, it seems rather odd that Article 4, paragraph 3 TFEU should enjoy priority over another primary provision expressing the normative object and purpose of the Treaties. Additionally, Article 193 TFEU states a perforation of the principle of supremacy of secondary EU law because it grants the EU member states a right to derogate from the Union’s primary law for the more effective protection of the environment by national legislation and, in line with Article 216, paragraph 2 TFEU, international treaties are not part of the Union’s primary law. Thus, the opinion of the ECJ in the Stockholm Convention case is not fully convincing. Further to this, and even if one accepts the Court’s finding in the Stockholm Convention case, internally Article 193 TFEU permits the member states to enact stronger standards for water protection than agreed upon by the Union in its international relations, and thereby overrules Article 4, paragraph 3 TEU. Moreover, the difference between an exclusive and an exercised shared competence is almost non-existent for the regulated field, because Article 2, paragraph 2 TFEU provides that the member states can only exercise their competence insofar as the EU has not exercised its regulatory competence. This means that within one regulatory field either the EU or the member states are competent (Schu ¨ tze: 166) and the other regulatory body is pre-empted. Hence, the internal and external legal order of the EU may not be fully congruent. Complicating matters even more, the internal legal order of the Union may also not be identical because the use of Article 193 TFEU depends on the various member states and so it is rather likely that only some are enacting (different) stronger rules. As a result, a third state concluding an agreement with the Union can only be assured that the set environmental standard will be the minimum standard applicable and not necessarily the overall standard. This has to be respected by the EU in its negotiations with the partner (Nettesheim, Article 191 AEUV, paragraph 169).

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Conclusion It does not seem to be fully reasonable and is in fact rather confusing to apply a different legal standard internally and externally. The stated reason of a common single representation in external affairs does not grant such a huge legal disparity, because Article 193 TFEU enjoys, as a primary norm of Union law, the same legal status as other primary norms. Additionally, due to its status as an exception from the general system of the EU treaties, it has to be deduced that Article 193 TFEU enjoys priority over other rules of primary law, which is the situation for internal EU legislation. Issues of voting rights, etc., laid down in an international convention cannot overrule the primary law of the EU (Different: Eeckhout: 254). In light of the foregoing and contrary to the opinion of the ECJ, the more convincing approach seems to be that Article 193 TFEU overrides Article 4, paragraph 3 TFEU, not only in internal but also in external relations. As such, the state sovereignty of the member states would also be fostered. A SPECIAL CASE: MIXED AGREEMENTS – LIMITATION ON THE CHOICE OF FORUM The international water law agreements of the EU are concluded as mixed agreements. An agreement is qualified as ‘mixed’ whether it is concluded by the EU and all or some of its member states in a joint manner (Eeckhout 2011: 212). The legal justification for this rather common phenomenon is that parts of the agreement in question cannot be concluded by the EU alone, because its competences do not cover all subject matters of the agreement (Eeckhout 2011: 213). Mixed agreements have the same legal status as pure EU agreements, as long as the subject matter falls within the EU competence (ECJ, Commission/ France, paragraph 25). Mixed agreements also create a joint liability of the Union and its member states (Eeckhout 2011: 262), at least as long as a competence is not clearly attributable to either the EU or the member states (Eeckhout 2011: 264 recourses instead to the ‘attribution of conduct’). In the case of mixed agreements, the EU Treaties limit the choice of international fora for the member states. The state sovereignty of the member states may be reduced by Article 344 TFEU. This norm provides that the EU ‘Member States (shall) not submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for (in the Treaties)’ and thereby states the exclusive jurisdiction of the ECJ. The norm is a specific expression of the already mentioned member states’ duty of loyalty laid down in Article 4, paragraph 3 TEU (ECJ, Mox Plant, paragraph 169). The cornerstone case in

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this respect is the Mox Plant case, a dispute between Ireland and the United Kingdom about the state of the environment in the Irish Sea due to the building of a nuclear fuel plant at Sellafield (UK), adjacent to the Irish Sea. Ireland brought complaints concerning breach of the United Nations Convention on the Law of the Sea (UNCLOS) in two different fora: the International Tribunal for the Law of the Sea and an arbitral tribunal. The UNCLOS is probably the most complex and wide-ranging mixed agreement ever concluded by the EU (Eeckhout 2011: 218). The EU Commission brought an action against Ireland for breaching Article 344 TFEU. The ECJ started its examination by stating that the UNCLOS, as the decisive international legal instrument, had been concluded on the basis of shared competence and that it constitutes a mixed agreement (Mox Plant, paragraph 83 f). Thus, it was necessary for the Court to analyse whether the provisions of UNCLOS in question are part of the Union competence or not (Mox Plant, paragraph 86). This is an issue of attribution of competences and not of the type of competence (Mox Plant, paragraph 93). Notably, the ECJ ruled that the existence of an external competence is not contingent on the adoption of measures of secondary law covering the area in question and that the Union can enter into agreements in the area of environmental protection even if the specific matters covered by those agreements are not or are only partly the subject of secondary rules (Mox Plant, paragraph 94 f). As a result, at the heart of a shared external competence are two exclusive competences: one of the Union for the parts that do fall within its scope and one of the member states for the other parts, as demanded by the principle of conferral. Declarations of competence The precise extent of implied external EU competences in mixed agreements is usually difficult to determine. To address this problem, the EU is, not only in a bilateral but also in a multilateral context (Hoffmeister 2008: 65), increasingly commonly using ‘Declarations of Union Competence’. The declaration for the ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (OJ 1995, L 186/44) reads as follows: Declaration by the Community pursuant to Article 25 (4) of the Convention on the protection and use of transboundary watercourses and international lakes Having regard to Article 25 (4) of the Convention on the protection and use of transboundary watercourses and international lakes, concerning the extent of competence of organizations mentioned in that paragraph: In accordance with the treaty establishing the European Community and in the light of the Community legislation existing in the field covered by the

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Convention on the protection and use of transboundary watercourses and international lakes (in particular the legal instruments listed hereunder) the Community is competent for international matters. The member states of the European Community also have international competence which applies equally to matters covered by the said Convention. The object and purpose of a declaration of competence is to provide third-party members of an international agreement with specific guidance on whether the EU or its member states are competent to act in relation to a given subject matter. Yet, as general as the declarations have to be, they are imprecise and ambiguous. This can be seen from the wording of the quoted Watercourses Declaration. Yet, this vagueness and openness is required by the development of EU law on the one hand, and the fixed rules of an international treaty on the other hand. The declaration as a part of the latter is usually very difficult to adapt to a change in the EU’s competences and, especially in light of the changing competences of the EU, must be framed in flexible terms. A declaration has not been annexed to the OSPAR Agreement. In the Mox Plant setting, the wording of the Declaration was also open and not exhaustive (Mox Plant, paragraph 109; Koutrakos: 485). The Court scrutinized the existence of an EU competence by assessing the existing internal rules applicable to the subject maters of the Irish complaint and concluded that these matters come within the sphere of EU competence (Mox Plant, paragraph 120 f). The Court’s analysis seems to be the litmus test for the division of powers between the Union and its member states in cases of an open or non-existent declaration of competence. Next, it had to be analysed whether the jurisdiction of the ECJ is exclusive and precludes other dispute settlement procedures. The answer of the Court was again affirmative and the ECJ based its ruling on its established line on reasoning that an international agreement cannot affect the autonomy of the EU legal system (Mox Plant, paragraph 123). Moreover, the decision of an arbitral tribunal would be final and binding on the parties to the dispute, two members of the EU (Mox Plant, paragraph 129). This finding was supported by Article 282 UNCLOS, which gives way to regional measures of dispute settlement (Eeckhout 2011: 240). In essence, the judgment confirmed that, when concluding a mixed agreement in an area of shared competence, the EU institutions can decide on their own to what extent the EU elects to exercise this competence (Eeckhout 2011: 239). This approach raises a number of questions. It seems to blur the difference between EU matters and international treaty matters for the member states because the ECJ can, for instance, only interpret the ECE Convention as part of EU law and is only binding for its member states. It also has to be kept in mind that the exclusive jurisdiction of the ECJ applies only in internal EU matters and not if a member state is bringing a

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claim against a third state – or vice versa – to an international tribunal for a violation of the international treaty, even if the alleged breach is in an area of EU competence (Eeckhout 2011: 240). Moreover, Article 3, paragraph 2 TFEU, as laid down by the Lisbon Treaty after the Mox Plant ruling, does not cover shared competences and is, as such, not applicable to all types of implied competences because the provision was meant to codify the pre-existing case law of the ECJ regarding implied exclusive competences (Vedder; Article 3 TFEU, paragraph 5) and not regard shared implied competences. The norm is not exclusive. Hence, the existence of an implied shared competence next to the exclusive competence of Article 3, paragraph 2 TFEU is still possible (Vedder; Article 3 TFEU, paragraph 5ff). Despite the stated problems, the state sovereignty of EU member states is also limited in respect of the choice of forum for the solution of a dispute arising under an international agreement if the EU is a member of this agreement and the other party to the dispute is also an EU member state. The member state has to go to the ECJ for the solution if this matter also falls within the ambit of the EU treaties. Disconnection clauses A further problem stemming from the shared distribution of EU competences in international affairs is that the EU may over time assume additional external competences by internal regulation. This has an impact on already concluded agreements of the member states. Under international law, the member states would be obliged to follow the international agreement and not EU law due to Article 26 of the Vienna Convention on the Law of Treaties and the integrity and the development of the Union legal order would be jeopardized (Hoffmeister 2008: 68). Article 351, paragraph 1 TFEU may apply to these treaties (This has been disputed, see Lorenzmeier, Article 351 TFEU, paragraph 20 ff) in a way of analogous application, but in accordance with paragraph 2 of the provision the member states would be obliged ‘[to the extent that such agreements are not compatible with the Treaties, to] take all appropriate steps to eliminate the incompatibilities established’. One measure for the anticipatory elimination of possible incompatibilities is that of a disconnection clause which shall give notice to the other parties to a convention that the EU partners have concluded between themselves further-reaching EU measures on the same subject matter or could do so in the future (Hoffmeister 2008: 67). A model clause reads: Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject

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concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties. (Article 52, paragraph 4 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism)

Such a clause clarifies in the respective international convention that, in line with Article 30, paragraph 2 of the Vienna Convention on the Law of Treaties, Union law would apply instead of Convention law and, moreover, the clause also safeguards the development of future EU law without impairing the rights of other contracting states (Hoffmeister 2008: 67). A good example is the Declaration formulated by the European Community and the member states of the EU upon the adoption of the Convention on Financing of Terrorism by the Committee of Ministers of the Council of Europe, on 3 May 2005: The European Community/European Union and its Member States reaffirm that their objective in requesting the inclusion of a ‘disconnection clause’ is to take account of the institutional structure of the Union when acceding to international conventions, in particular in case of transfer of sovereign powers from the Member States to the Community. This clause is not aimed at reducing the rights or increasing the obligations of a non-EU party ‘‘vis-a`-vis’’ the European Community/EU and its member states, inasmuch as the latter are also parties to this Convention. The disconnection clause is necessary for those parts of the Convention that fall within the competence of the Community/Union, in order to indicate that EU member states cannot invoke and apply the rights and obligations deriving from the Convention directly among themselves (or between themselves and the European Community/Union). This does not detract from the fact that the convention applies fully between the European Community/EU and its member states on the one hand, and the other parties to the Convention, on the other; the Community and the EU member states will be bound by the Convention and will apply it like any party to the Convention, if necessary, through Community/Union legislation. They will thus guarantee the full respect of the Convention’s provisions ‘‘vis-a`-vis’’ non-EU parties.

Disconnection clauses are all the more useful if the conclusion of a mixed agreement is impossible and the EU cannot become a member of the respective agreement. If the EU can become a member, a possible conflict between internal EU rules arises due to Article 216, paragraph 2 TFEU, which gives priority to the rules of the agreement (Hoffmeister 2008: 69). A third possibility are unilateral declarations of the EU, as had been done in the ESPOO Convention (Hoffmeister 2008: 69).

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Customary international law The stated findings are not limited to international treaty law but apply also to customary rules, as long as the rules are transferable. This is not possible for declarations due to the specifics of customary law. The EU is bound by rules of customary international law (ECJ, Racke, paragraph 45), which enjoy the same legal status as agreements, i.e. precedence over secondary EU norms and national law as well (Hoffmeister 2008: 55). Although the ECJ has not explicitly ruled in this regard, recourse to customary international law as part of Union law is necessary by analogous application of the Mox Plant ruling, whether an issue of fresh water law falls within the ambit of the EU and is not fully regulated by secondary law. This shall be clarified by an example. If, for instance, a dispute arises between two member states about the water quality or quantity of a transboundary watercourse, this dispute would be within the scope of the Union ruled upon by the ECJ, which then must for example apply the customary rule of ‘equitable and reasonable utilization’, as it is laid down in Articles IV and V of the Helsinki Rules and in Article 5, paragraph 1, the first sentence of the UN Watercourses Convention in an internal context. INTERNAL ACTION OF THE EU AS EXEMPLIFIED BY THE WATER FRAMEWORK DIRECTIVE Generally, the internal water law measures of the EU can be divided into legislative acts and policy papers. As the overview in the ‘development section’ of this chapter has shown, the legislative acts are rather piecemeal, with the named exception of the WFD, which will be addressed below. The main secondary EU legislative measures for water law are directives regulated in Article 288, paragraph 3 TFEU. A directive is only ‘binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’, hence, they must be transposed effectively into the national legal order by an act of the respective legislative organs (For examples and details, see Schu ¨ tze, p. 323 et seq). For instance, the WFD had been transposed in Germany into national law by the federal ‘Wasserhaushaltsgesetz’. Member states are obligated to fulfil the object and purpose of the WFD by changing their national laws and are thus limited in their state sovereignty. Moreover, the national authorities are required to apply those parts of a directive that are transposed into national legislation in accordance with principles of EU law and not national law, although the national law itself does not indicate which parts of it are a transposition of an EU directive and which parts are genuine national law. This may lead to interpretative and

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enforcement problems, due to the hereby established dichotomy of national and EU laws. The Water Framework Directive The WFD stipulates an integrated water management approach for the EU water policy (Lorenzmeier 2013: 12 f). It centres on the concept of river basin management with the objective of achieving good status of all EU waters by 2015 (EU Commission, Background Document for the 3rd European Water Conference 2012, p. 1), which has not been reached yet due to a number of well-known water management problems like over-abstraction, the nexus between different uses of resources, e.g. water, food and energy, and, last but not least, climate change (A more detailed list can be found at EU Commission, Background Document for the 3rd European Water Conference 2012, p. 1). It covers surface as well as groundwaters, inland as well as transitional and coastal waters (WFD, Article 1). The environmental objectives of the Directive are stated in Article 4 WFD, especially ‘good water status’ as defined in Article 2 no. 18, 20 WFD. Despite being named a ‘framework directive’ it entails very detailed provisions and obligations, like Article 13 WFD on the production of river basin management plans carried out by the member states. In respect of water management, the WFD uses the integrated basin approach, i.e. the natural geographical and hydrological unit of a water resource which neglects s boundaries of the EU member states (Lorenzmeier 2013: 12). The integrated basin approach combines the ecology, the habitat and the water quality for the basin at issue. As stated, the WFD applies to surface and groundwater resources but it applies a stricter standard for groundwater resources due to their greater vulnerability. The EU member states shall set out a protection plan for each river basin defined in Article 2 no. 13 WFD. The protection plan addresses a number of different water-related issues including an economic analysis in Article 5 WFD. Stemming from this is the mandatory and adequate pricing of water usage as an incentive for the conservation of the resource. A further goal of the WFD is the reduction of the degradation of the environment. In achieving this goal, the member states have to ensure that the price charged for the abstraction, distribution, collection and treatment of water resources reflects the true costs. Derogations from this principle are possible in less-favoured areas to provide at least some basic water at an affordable price (An overview can be found at http://ec.europa.eu/envi ronment/water/water-framework/index_en.html). Some member states and the EU have different opinions concerning the definition of the term ‘water service’ in Article 5 WFD. Germany and the Netherlands, for instance, are using a restricted view, including only drinking water and waste water treatment, while the EU Commission also includes water abstraction for

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industrial and agricultural uses etc (EU, Commission, IP/11/1101 concerning Germany and the Commission). The WFD is controversial due to its intervention in the national distribution of tasks and competences (For the criticism in Germany see Kirchhof, Article 83 GG, paragraph 80). Arguably, this approach is barely compatible with the subsidiarity principle as it is elaborated in Article 5, paragraph 3 TEU and Protocol 2 on the application of the principles of subsidiarity and proportionality (Lorenzmeier 2013: 13). For the scrutiny of the member states’ remaining state sovereignty, the WFD can be seen as a perfect example of the limitation of their sovereignty in respect of substantive and administrative issues by EU secondary legislation. The regulatory power of the EU is not limited to substantive legal issues but also encompasses additional measures, such as the effective enforcement of a measure (ECJ, Wine, paragraph 14 ff). This is the case even if the EU has no explicit competence for such a regulation, like criminal law as a way for the effective enforcement of a directive (ECJ, Environmental Criminal Law, paragraph 48). Despite some criticism in academic writings, the position of the ECJ now widely accepted. For water law, in the context of external competences already mentioned, the derogation provision of Article 193 TFEU is of special importance. The member states are permitted to enact more stringent measures than the harmonization demanded by the Union as long as they are compatible with the treaties. More stringent measures are measures that protect water resources more effectively than the secondary EU legislation. Despite this, the stringency is primarily concerned with the substantive law and not with administrative matters. The measures are compatible with the treaties, particularly if they do not infringe the provisions on free movement and the functioning of the internal market, as set out under Article 26, paragraph 2 TFEU. CONCLUSION EU water law regulation is part of the environmental competence of the Union, and is shared between the EU and its member states. The external water law competence of the Union is a permanent ground for legal uncertainties due to the doctrine of implied powers as developed by the ECJ. Declarations of competence can ease this burden only to a limited degree due to their implicit vagueness. The internal water law of the EU is, with the exception of the WFD, only partly developed, and the Union is applying a case-to-case approach in respect of the principle of subsidiarity. Yet, if a secondary measure has been enacted by the Union, EU law enjoys precedence over national law as long as Article 193 TFEU is not applicable.

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Thus, within the scope of the EU treaties, the sovereignty of the EU member states is very limited. They can only influence the adoption and the content of an internal legal act in the negotiation process within the Council of the EU if the secondary measure is adopted by majority voting in accordance with Article 192, paragraph 1 TFEU. Their position is much stronger in the limited and enumerated area of Article 192, paragraph 2 lit. b second alinea TFEU, which requires unanimous voting. For external acts, the decision is also held in general by majority voting, with the exception that unanimity is also required for the internal act, Article 218, paragraph 8 TFEU, which would in the analysed setting be applicable for treaties covering the field of Article 192, paragraph 2 lit. b second alinea TFEU and lead to a parallel structure for internal and external decision voting. Only the property regime of the member states is outside the Union’s competence.

REFERENCES Caponera, D., Principles of Water Law and Administration (CRC Press, 1992). Eeckhout, P., EU External Relations Law, 2nd ed. (Oxford: OUP, 2011). Heliskoski, J., Mixed agreements as a Technique for Organizing the International Relations of the European Community and its Member States (Netherlands: Martinus Nijhoff Publishers, 2001). Hummer, W., Vedder, C., Lorenzmeier, S., Europarecht, in: Fa¨llen, 5th ed., Nomos, Baden-Baden (2012). Kirchhof, G., in: Maunz, T., Drig G., Grundgesetz-Kommentar, Beck, Munich (2009), Art. 83 Basic Law. Kunig, P., ‘Self-contained Regimes’, in Wolfrum (Ed.), Max Plank Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012). Koutrakos, P., EU Law: External Relations (ICLQ, 2010), p. 481. Lorenzmeier, S., ‘International and European Aspects of the Management of the Water Service in Europe’, in: Parisio, V. (Ed.), The Water Supply Service in Europe (Giuffre` Editore: Milano, 2013), p. 1 ff. Lorenzmeier S., in Grabitz, Hilf, Nettesheim (Eds), EU-Commentary, Beck, looseleaf, Article 351, TFEU. McCaffrey S., ‘International Watercourses, Environmental Protection’, in Wolfrum, R. (Ed.), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2012). Nettesheim M., in Grabitz, Hilf, Nettesheim, EU-Commentary, Beck, looseleaf, Article 191 and Article 193 TFEU Risini I., ‘Water Supply Services in Germany’, in: Parisio (ed.), The Water Supply Service in Europe (2013), p. 121 ff. Sax J., Thompson B., Leshy J., Abrams R., Legal Control of Water Resources, 3rd ed. (West Publishing, 2000). Schu ¨ tze, R., European Constitutional Law (Cambridge: CUP, 2012). Simma, B. and Pulkowski, D., ‘Of Planets and the Universe: Self-Contained regimes in International Law’, European Journal of International Law 17/3 (2006), p. 484–5

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Sperlich, E. and Lorenzmeier, S., ‘Water Supply services in Austria’, in Parisio (Ed.), The Water Supply Service in Europe (2013), p. 149 ff. Vedder, C., Die auswa ¨rtige Gewalt des Europa der Neun (Schqartz, 1980). ———, Vedder/Heintschel von Heinegg. Eurpa ¨isches Unionsrecht (Nomos, 2012), Article 3 TFEU. Woods, L. and Watson, P., EU Law, 11th ed. (Oxford: OUP, 2012).

Cases International Court of Justice, Tehran Hostages, ICJ-Rep. 1980, p. 3. European Court of Justice (ECJ), C-162/98, Racke, ECR 1998, I-3688. ———, 26/62, Van Gend and Loos, ECR 1963, 1. ———, 6/64, Costa/ENEL, ECR 1964, 1141. ———, C-376/98, Germany v Parliament and Council, ECR 2000, I-8419. ———, Case 22/70, ERTA, ECR 1971, 263. ———, C-491/01, British American Tobacco, ECR 2002, I-11550. ———, C-178/03, Chemicals, ECR 2006, I-107. ———, Opinion 2/00, Cartagena Protocol, ECR 2001, I-9717. ———, Opinion 1/03, ECR 2006 I-1145. ———, C-246/07, Stockholm Convention, ECR 2010, I-3317. ———, C-459/03, Mox Plant, ECR 2006, I-4635. ———, C-402/05 P and C-415/05 P, Kadi II, ECR 2008, I-6351. ———, C-239/03, Commission/France, ECR 2004, I-9325. ———, C-162/98, Racke, ECR 1998, I-3655. ———, C-217/88, Wine, ECR 1990, I-287. ———, C-176/03, Environmental Criminal Law, ECR 2005, I-7879.

26

Nationalism, State Sovereignty and International Water Management in the Zambezi River Basin

Dean Kampanje-Phiri INTRODUCTION Recently derived concepts in the management of international waters, that is water that crosses or forms boundaries between two or more sovereign states, recommend that a river basin forms the hydrologic unit for managing international waters (Sadoff et al. 2002: vii). The implication is that political and jurisdictional borders should become secondary in order to achieve coordinated and joint management of international waters. Treaties and cooperative framework agreements on international water management in the Zambezi River Basin and southern Africa as a whole, for instance, have often singled out nationalism as one of the challenges to effective joint management of international waters (Chenje 2003: 197). Important infrastructure like dams, for instance, that have significant hydrologic implications for both up- and downstream areas in the Zambezi River Basin continue to be operated to cater for the needs of individual riparian countries and specific sectors (SWRSD 2011: 2). Nevertheless, with the increasing force of globalization, many scholars have questioned the relevance of nationalism and state sovereignty as coined in the eighteenth- and nineteenth-century European articulations of the nation state. In this era where the market institution is perceived as central in social organization, many questions have been raised about the state, especially regarding its connections to power, authority and solidarity (see Reis 2004: 252). From economic to environmental and security analyses, arguments have been put forward to highlight the changing nature of state sovereignty from the classic regime to liberal sovereignty (see Held 2003). There is a need therefore to explore whether this conceptual understanding is supported by empirical evidence, particularly within the field of international water management. This chapter seeks to explore the relationship between nationalism, sovereignty and international water management by highlighting the substantive scope of protocols and treaties on water management in the Zambezi River Basin as well as some concrete examples of state practice in

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international water relations. This chapter also argues that globalization is not an all or nothing process, that it has affected regions differently, and that the links between nationalism, state sovereignty and globalization – particularly within the field of international water management – continue to generate different experiences. Thus their links need to be analysed case-by-case or region-by-region. GEOGRAPHIC OVERVIEW OF THE ZAMBEZI RIVER BASIN The Zambezi River Basin is the fourth largest river basin of Africa’s 60 international river basins after the Congo, Niger and Nile Rivers. It is the only large river basin that drains water to the east of the continent, and it is southern Africa’s largest river basin, both in spatial coverage and the number of riparian states contained. Eight states including Angola, Botswana, Malawi, Mozambique, Namibia, Tanzania, Zambia and Zimbabwe, are riparian to the Zambezi. The main river itself arises from Kalene Hills in north-west Zambia and it is 2,494 km from its source to its mouth at the Indian Ocean coast; the River derives its waters from a catchment extent of around 1,193,500 km2 (Davies 1986: 225).1 The upper Zambezi extends from the river source in North West Zambia and East Angola and flows through the Caprivi Strip up to Victoria Falls. The middle Zambezi extends from the foot of the Victoria Falls and flows through a series of gorges including the Batoka, Mupata and Cahora Bassa. The lower section of the river extends from the foot of the Cahora Bassa to the delta on the Indian Ocean Coast (Davies 1986: 225–31). The Basin is home to more than 30 ethnic groups, which may challenge both national and international water management efforts. Water availability in the Basin exhibits spatial and temporal variations, with high water availability in the northern and eastern parts of the basin and decreases progressively in the southern and western parts. The implication is that water is relatively abundant in some riparian countries as opposed to others and there are also variations within single countries. These geographic characteristics have implications on inter-state interactions based on differing incentives to cooperate (see Dinar 2008: 35). The high number of riparian states in the Zambezi Basin is a result of a quest for waterways and resource acquisition, economic interests, and competitive European nationalism, particularly in the nineteenth century. Consequentially, the map of the basin is more a representation of a resource atlas than a social map, since social cohesion of the ethnic groups in the Basin had been disregarded during the partitioning of the colonies. The partitioning process separated same groups and communities into different colonial territories, while simultaneously many different ethnic groups and communities found themselves within one such territory. These factors have influenced the nation-building process, the legitimacy of the post-colonial state and its foreign policy engagements.

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Coupled with the geographic characteristics of the Basin, they engender important implications for international water management in the Zambezi River Basin. Exploring the links: nationalism, state sovereignty and international waters Existing literature on international water management acknowledges the influence of national sovereignty and security considerations in international water conflicts (see Jansky, Nakayama & Pachova 2008: 2). Understanding nation and nationalism as well as state sovereignty is therefore important in analysing how these processes affect water management, particularly in the international arena. There is a general tendency in literature to use the terms ‘nation’ and ‘state’ interchangeably. It is, however, important to highlight the distinction between the two because their differences are important in understanding the processes that are involved when these two terms are used. One important fact is that there are many states without a nation and some nations without a state. It is undeniable that the nation of Palestine exists for instance. However, a Palestinian State has not been in existence for a long time and the Palestinian Authority only made a recent application to the United Nations General Assembly to be recognized as a state. A nation is principally concerned with relationships, both spatial and temporal connections, as well as the collective identity of the citizens. The state, however, is centred on sovereignty of the nation (Spencer & Wollman 2002: 2). In classical assumptions of this sovereignty, it means that states acting in the interest of their nations are, nominally free and equal; enjoy supreme authority over all subjects and objects within a given territory; form separate and discrete political orders with their own interests (backed by their organization of coercive power); recognize no temporal authority superior to themselves; engage in diplomatic initiatives but otherwise in limited measures of cooperation; regard cross-border processes as a ‘private matter’ concerning only those immediately affected; and accept the principle of effectiveness, that is the principle that might eventually make right in the international world – appropriation becomes legitimation (Held 2003: 163).2

If primordialism (the naturalized view of nations) is engaged to explain the origins of the nation, a state may be viewed as the creation of the nation, since nations need political sovereignty in order to be as ‘independent as ¨ zkirimli 2000: 105, see also Grosby 2005: 5, possible’ (Breilly op. cit., O Kedourie op. cit., Calhoun 1993: 213). The central thesis in primordialist articulations of nationalism is that nations as created by nature cannot be socially constructed. By this virtue, as human beings, our nationality is immutable. One cannot consciously choose one’s nationality as one is born ¨ zkirimli 2000: 19). There is thus a close into a particular nation (see O

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association of ethnicity and the nation in primordialist notions of nationalism. By implication, nations are supposed to be culturally homogeneous, or in other words their identities are culturally exclusive (see Dawisha 2002: 3–4). Thus, cultural differences form the basis of nations that by their nature emphatically include a particular ethnicity and exclude all others that are unlike the ethno-nation. If these articulations of nationalism hold, then by default, nations and nationalism are not viable in the African context due to the multi-ethnic nature of the states (see Markakis 1999: 76). Moreover, the effect of globalization on nations and nationalism as pushed by the globalization discourse should be marginal, since what holds the nation together in primordialist explanations is blood relations and not mere social connections. Constructivist views on nationalism, in contrast, have been advanced to explain nationalism in Africa and therefore provide space for analysing how the process of globalization interacts with state sovereignty and the nationbuilding process. Departing from Benedict Anderson’s definition of the nation as ‘an imagined political community’ (Anderson 2006 [1983]: 5–6), constructivist proponents argue that nations are a consequence of social interactions and that national identities change with shifting social interactions (Dawisha 2002: 5). In other words, nationalism is a ‘politically induced cultural change’ (Dawisha 2002: 5–6). ‘Enlightenment, industrialization, capitalist social relations, print-capitalism, or the state’ are perceived as ‘dimensions of modernity’ that have produced nationhood and nationalism (Yeros 1999: 2). Particularly for Gellener, whose theories on nationalism have been criticised as functionalist, economic explanations have been advanced as the basis for nationalism. Nationalism is seen as a necessary process for social organization to advance the market economy. The need for generic training to allow people to adapt to different roles in the market economy, standardized education and other requirements create cultural homogeneity that coincidentally form the basis of nations and nationalism (Newman 2000: 22). Gellener’s functionalist approach to nationalism has interesting implications for globalization and states’ legitimacy, since globalization creates dilemmas for the nation as a form of identity as well as state sovereignty when the economy continues to be driven by multinational corporations. As culture and largely national identity is not static but is continually redefined in constructivist explanations, current security and developmental considerations can influence identity change. The increasing role of multinational corporations in the economy, for instance, or the activities of international non-governmental organizations (NGOs) in development work that has been traditionally considered as an arena for the state, have implications on a state’s relations to its citizens and the formation of its identity. Rather than regarding the multi-ethnic composition of the African states as a barrier to nationhood in the continent, some scholars argue that ethnicity is not a stumbling block to viable nationalism in the region. Ideally,

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African nationalism has dwelled on the ‘ideas of progress and modernity’ other than shared past and collective memories, which are central in primordialist and ethno-symbolist views of nations. This should not be surprising considering that the multi-ethnicity of the African states implies a lack of shared and collective memories. It is also in light of these arguments that the relations of nation/nationalism to globalization can be comprehensively understood, since the very ideas of modernity place the states in the path of globalization. Moreover, while violent conflicts that have characterized some African states in the post-colonial era have been attributed to the artificial nature of the African states, some scholars including Brass argue that ethnic divisions should not be perceived as the root causes of this increased ethnicity. Rather than cultural differences, political and economic environs to a large degree form the basis of ethnic conflicts ¨ zkirimli 2000: 110). The state as a vehicle for African nationalism therefore (O has implications for internal dynamics in the way it appropriates power and resources. Where the state appropriates power and resources unselectively or where state institutions deliver on people’s expectations, the citizens give their allegiance to the state (see also Newman 2000: 35). Where state institutions fail to deliver, however, ethnicity is pursued to perform functions that the state institutions have not been able to execute (Markakis 1999: 76). All things considered, state sovereignty is preoccupied with international relations while nationalism (what others refer to as internal or domestic sovereignty) is focussed on internal relations and how individuals and groups of individuals relate themselves to the state. For international water management, these two different spheres are important. Reasonably, both internal disputes (arising from ethnicity, etc) and inter-state conflicts have implications for international water management. For a start, the sovereign right that is central to state practice evidently affects international water management. This is because, within the international river basin, riparian states first and foremost have national agendas on water development (see Sadoff & Grey 2005: 2). Arguing within the liberalist and neo-liberalist positions on international relations, the willingness to cooperate by a riparian state will therefore exist if such cooperation does not hinder the national agenda (Sadoff & Grey 2005: 1). Internal divisions and conflict of interests within the nation influence how the state conducts itself internationally. While a state seeks to maximize its gains in foreign engagements, it is difficult to do this at the expense of its legitimacy at national level. The state therefore has to reconcile international and national interests, which in many cases can be challenging (see Dinar 2008: 30). Nonetheless, a nation is not a monolithic entity and differing interests among the groups means that what constitutes national interest is contested. Such contestations as well as shifting group interests not only affect how a state engages other riparian states but also mean that international relations have to be dynamic in order to reflect dynamic internal interests. Considering the complex number of domestic actors vying

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for influence in the foreign policy, a non-functioning state or in the absence of robust policy processes, a state may face ‘foreign-policy paralysis’ (Kelly 2009: 268). International water negotiation, as Putnam argues, is therefore a two-level process of negotiations. Both levels, domestic and international, involve claims and counterclaims. The state has a difficult task of creating a balance that satisfies domestic demands on the one hand and minimizing adverse effects from such strategies at an international level, on the other (Dinar 2008: 30). Referring to work by Gourevitch, Dinar therefore states that the ‘international system is not only a consequence of domestic politics and structures but also a cause of them’ (Ibid.). When the state appropriates or is perceived to appropriate water resources for the benefit of some groups at the expense of others, discontent can rise among the disadvantaged groups. In situations where such differences take ethnic lines, it risks both the nation-building process and state legitimacy. The history of the struggle of the Tonga people as displaced people in both Zambia and Zimbabwe, for instance has been highlighted by the the social consequences of the Kariba Dam project. Resistance to the possible development of Baynes Hydropower Project on the Cunene River, 30 km down from the Epupa Falls in Namibia, is normally advanced in the interest of the Himba people of Namibia. Ethnic attachments to large water projects, particularly people’s opposition to them, not only creates complex political problems internally but also negatively affects the state’s international standing. Internally, such projects become heavily politicized as ethnic entrepreneurs take advantage of ethnicity in the contest for state power (Markakis 1999: 74, Newman 2000: 24). When opposition to grand water projects and their ethnic politicization get enough international attention, it may reduce the capacity of the state to secure financing from donors and other international financial institutions. Within international water management, the bargaining power of the state can as a result of such attention be reduced when it has no capacity to develop its own water resources. Customarily, water allocation in international basins has been substantially guided by water needs of a particular state other than rights alone (Dinar 2008) and for a state actively developing its water resources, its bargaining power might increase. Moreover, where internal conflicts take the form of armed conflict – as was the case in Mozambique and Angola – the states become unstable and in many ways unable to participate in international water management. For such states, water resources development may not be a priority, as military expenditure increases for instance. Consequently other riparian states may continue to develop their water resources in the absence of participation of the unstable state (Kelly 2009: 268). This development may potentially disadvantage the state in future negotiations, since international water agreements from around the globe show that prior uses are always protected in the agreements, thus losing negotiating powers.

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Scholars have also argued, however, on the role of invasion on nationalistic sentiments and advancements. Foreign invasions are capable of influencing individuals to rally behind their state. Where citizens feel threatened by the actions of another sovereign state, they are likely to give their allegiance to the state as a defender of the sovereign territory. This seems to be the case in the Malawi–Tanzania standoff over the political control of Lake Malawi. According to the government of Malawi, based on the Heligoland Treaty of 1890 which partitioned British and German areas in central and southern Africa, the whole northern part of the Lake is located in the sovereign territory of Malawi. However, the government of Tanzania disputed this argument based on the principle of the common law, stating that when a water body forms the border of two states, the border line has to lie on the median of the water body. In counter-argument, the government of Malawi stated that such a principle is only applicable if there are no existing treaties to the same. Both Malawian and Tanzanian citizens have rallied behind their states in their efforts to gain political control of the Lake. In other words, this political standoff seems to solidify nationalistic attitudes in both countries. Globalization and international water management in the Zambezi River Basin So far, the discussion has focussed on nationalistic tendencies and sovereign interests in state practice in international water relations. However, this chapter also acknowledges the influence of globalization in international water management because state practice by the Zambezi River Basin States is not wholly guided by nationalistic ideas. Activities by international financial institutions, donors, NGOs, epistemic communities and regional economic communities such as the southern African Development Communities (SADC) and the Common Market for East and southern Africa, as well as provisions of international water law, influence state decisions and the nature of international engagements. In fact, part of the explanation of increased regionalization in the fields of energy and water in the Zambezi River Basin can be attributed to it. As other scholars have argued, regionalization may be employed by the states as a mechanism of weathering the force of globalization, particularly where the states are marginalized in the international system (Va¨yrynen 2003: 32). Thus, weaker states may form a regional economic community in order to expand the market base and make the region more attractive to investors through enhanced intra-regional trade. Globalization pundits have argued on the negative effects of globalization on the African continent. Some scholars have highlighted how the African continent has been left behind by the globalization process (Poku & Edge 2001: 1). Forced to adopt institutional changes such as decentralization and privatization while lacking access to the market,

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many southern African countries have ended up with hybrid institutions. This has profound effects on project financing due to the lack of market penetration and investment in the region, which is attributed to weak institutions and regulatory frameworks. Thus, despite the seasonality of water availability in the Zambezi River Basin, water infrastructure to address the variability is largely modest. Lack of financial capacity to implement necessary water projects and heavy reliance on donors has significantly subjected the basin states to donor conditions and ideologies. The dominant position of the World Bank in financing large-scale engineering projects, for instance, can influence the conclusion of international agreements over the development of transboundary waters. The requirement of the bank, particularly for any riparian state wishing to carry out water developments on an internationally-shared watercourse, to notify other riparian states necessitates the riparian states to establish some form of cooperation, even if just at the level of information sharing. In order to secure project financing, the states have to find mutual ways of cooperating, and hence reducing the likelihood of unilateral project implementation that would normally be associated with state sovereignty. Moreover, since the 1990s, the World Bank created a specific requirement for regional focus in the development of environmentally-related projects if the states were to secure funding from it. Internally, the rise of civil society in the Basin states and across the world has implications for state sovereignty and nationalism. There is now increasing participation of NGOs in the delivery of public service that has traditionally been regarded as the role of the state (Reis 2004: 253). This involvement by the NGOs has important implications for state authority, especially where such NGOs side with communities on important debates. In some situations, civil service organizations (CSOs) have taken a lead in the opposition of state projects on behalf of the local communities. Such kinds of activisms are making dam projects and other forms of resource appropriation by the state highly contested with potential implications for funding – particularly where the CSOs concerned are well-connected to international NGOs and donors. In a classical situation where citizens pledge their solidarity to the state, many individuals continue to rally behind CSOs in order to moderate the powers of the state on issues of interest. As Reis notes, arguments have been advanced on ‘civil society as the appropriate space for community feelings, interests and actions’ (ibid.). To this end, some scholars have argued for civic nationalism as opposed to ethnic nationalism, where the former is better suited to the emerging social and political realities as a consequence of globalization and the erosion of state sovereignty (Newman 2000: 25). In a bid to encourage private participation in water and energy development in the Zambezi River Basin, states are encouraged to implement reforms that make them economically attractive. In this way, the states have to reorient themselves to the needs of the market and thereby

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reduce their role in such important undertakings. This means that the state has to transform itself from the way it has been traditionally moulded and allow free movement of capital and increased interconnectedness to other states. In this liberalist economic form, investors have to have a bigger say on how institutions are going to be managed and projects implemented. Thus, while nationalistic agendas and state sovereignty continue to dictate how the states engage themselves in international water relations, the need for new capital investment threatens to disrupt this traditional approach. Overview of key water developments in the Zambezi River Basin Nationalistic tendencies and strong notions of state sovereignty are well reflected in the development of hydropower projects, particularly in the cases of the Kariba, Kafue and Cahora Bassa hydropower projects. These notions may explain the very reason why the British would not even consider the development of Cahora Bassa in Mozambique, despite the fact that the site had enormous hydropower potential compared to that of the Kariba Gorge, for instance (see Middlemas 1975: 16–17, Chenje 20033: 198–9). The Kariba–Kafue debates that dominated the early 1950s, regarding which hydropower project to develop first, exhibit strong considerations for sovereign interests and their relations to nationalism. Even though both Northern Rhodesia (present-day Zambia) and Southern Rhodesia (present-day Zimbabwe) were colonial states under the British, their political arrangements were different. Southern Rhodesia as a settler colony was somehow autonomous in its political undertakings contrary to Northern Rhodesia, which as a protectorate was still under the direct rule of the British government. The changing internal political dynamics in Northern Rhodesia owing to the rising nationalist movements in the country in the post-World War II period rendered the Kafue project a security risk to the sovereign interests of Southern Rhodesia. Initially, both the Southern and Northern Rhodesian governments agreed to prioritize the development of the Kafue Gorge located inside Northern Rhodesia for the supply of power to the copperbelt in north-western Zambia (Barkved 1996: 43–4, Hance 1954: 42). In light of the changing political circumstances, among other factors, the federal government, being situated in Southern Rhodesia, employed political tactics to secure funding for the development of the Kariba project instead (Clements 1960: 50–1). The political manoeuvring went further to ensure that Southern Rhodesia’s sovereign interests were well secured by locating the power house on the southern bank, effectively titling the balance of power in favour of Southern Rhodesia if Northern Rhodesia was to be granted independence (Austin 1968: 148). The Kariba hydropower project was constructed between 1955 and 1959. Northern Rhodesia was eventually granted independence in 1964 and became what is present-day Zambia. A year later, Southern Rhodesia, under

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the leadership of Prime Minister Ian Smith, made a unilateral declaration of independence (UDI) from Great Britain thereby complicating its relations with Zambia, whose leadership under President Kenneth Kaunda had taken a strong stand against colonialism in the continent. The Zambian government, for fear of economic blackmail as well as to secure its liberty for the advancements of its political interests both within Zambia and across the region, adopted the policies of economic devolvement from the southern states. In this light, the developments of the Kafue Gorge hydropower project and the north bank power house on the Kariba Dam were given utmost priority (Mihalyi 1977: 69). Construction of the 600 MW Kafue Gorge hydropower station took place between 1971 and 1973 and the 600 MW Kariba North station was scheduled for completion in 1977 (Mihalyi 1977: 65). For this particular reason, these projects were never developed with the region in mind but rather to serve national interests. The development of the Cahora Bassa Dam reflects similar nationalistic ideologies – characteristic of all the major hydropower projects in the basin. With no economic rationality to the development of the project, Portugal only developed it to boost its political standing among its European allies. Thus the development of the Cahora Bassa Dam continued to reflect and was moulded around competitive European nationalisms. The whole process of project design, tendering and fundraising was designed to safeguard Portugal’s sovereign interests (Middlemas 1975). Nevertheless, being proposed and developed in the late 1960s and early 1970s, respectively, the project faced strong opposition from liberation fighters in Mozambique (FRELIMO), independent African countries and activists in many European capitals who were against colonialism. In a period of massive decolonization, Portugal’s insistence on colonialism seemed out of touch with reality. Rather than a huge economic project, the Cahora Bassa Dam became a symbol of colonial oppression, creating complications for project participation by European countries, firms and riparian states within the Basin. Most of the African states rallied together to oppose the project, and this should not be surprising considering that most of the African leaders were also strong supporters of pan-Africanism. The better way to understand this is that the very multi-ethnic nature of the African states made it easy for the leaders to support political struggles in other countries regardless of their ethnicities, since the real economic freedom for the majority of Africans would only be attained through decolonization. The completion of the Cahora Bassa hydropower project coincided with the attainment of independence by Mozambique in 1975. Nevertheless, with the help of the Southern Rhodesian Government, a rebel group, RENAMO, was formed in Mozambique. This was meant to limit the involvement of the FRELIMO Government in Mozambique in the internal affairs of Southern Rhodesia through harbouring of freedom fighters from Southern Rhodesia. This destabilized the region and reduced the attractiveness of international

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projects, enhanced pursuance of national self-sufficiency policies, and therefore stalled development of water projects. Nationalism and sovereignty in the wake of international water management in the Zambezi River Basin The Zambezi River Basin states and the southern Africa as a whole have, since the 1980s, explored ways to increase cooperation in various areas including water and energy. When the southern Africa Development Coordinating Conference (SADCC) was established in 1980, one of the core objectives was to increase interdependence among the southern African states as a means of reducing their dependence on the apartheid South African government. The 1982 declaration ‘Towards an Energy Policy for southern Africa’ signed in June 1982 by the Council of Ministers of the SADCC member countries aimed to improve energy situation in the member states (Bhagavan 1985: 215). This declaration focussed, among other things, on the exploitation of hydropower resources both small and large as a strategy to promote rural electrification as well as the development of regional electrification. Power interconnection of the national grids was also envisaged as an efficient means to produce and distribute electricity (ibid.). Though driven by the need to isolate the apartheid South African government, this was the first attempt to acknowledge existing interdependences in the region and shortfalls of the policies of national self-sufficiency or nationalistic approaches to energy development. Nevertheless, international cooperative agreements were not really supported by policy adjustments by the member states that were necessary for the success of the agreements. The government of Zimbabwe, for instance, opted to develop Hwange Thermal Power Plant when cheap hydroelectric power existed in abundance both in Zambia and Mozambique and total power supply outstripped demand in the SADCC region by 67 per cent (see Bhagavan 1985: 219, Munslow & O’Keefe 1984: 38, 40–1, Hosier 1986: 94). As previously stated, this should be less surprising considering the volatility in the region during the 1970s and 80s. With two civil wars in Mozambique and Angola, and armed struggle for independence in Namibia, violent conflicts were a cause for worry in securing supplies. Security considerations would have therefore made it impossible for states to rely on other states for crucial resources such as energy if alternatives existed locally, even if they provided no comparative economic advantage. Dams for hydropower and irrigation became a military target in Angola, while in Mozambique the direct current line connecting Cahora Bassa Power Station and the Apollo Sub-station in South Africa was repeatedly attacked, cutting off one of Mozambique’s important sources of revenue. With such security problems in the region, the states would undoubtedly become more nationalistic.

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Most of the states were newly-independent, however, and therefore protective of their hard-won sovereignty. For this particular reason, sovereign interests manifested through nationalistic tendencies and dominated international relations. National self-sufficiency was perceived as a way of upholding a state’s sovereignty. Operating in such a political environment, the economic rationality of engaging in international projects was often ignored in favour of nationalistic sentiments and security considerations (whether real or perceived) prevalent in the Zambezi River Basin, which reduced the financial attractiveness of many projects. Moreover, African nationalism sought to maximize gains from national resources (Shaw 1975: 672) and for this reason most states would have preferred to exploit local resources anyway. Attempts to develop a basin-wide program for the management of the common waters of the Zambezi River Basin took place in the mid-1980s. On 28 May 1987, five riparian states of the Zambezi River Basin including Botswana, Mozambique, Tanzania, Zambia and Zimbabwe signed an agreement at the Conference of the Plenipotentiaries on the Environmental Management of the Common Zambezi River System to implement the action plan for the Environmentally Sound Management of the Common Zambezi River System (ZACPLAN). The goal of the ZACPLAN was to develop water resources in the Basin and manage the environment in a coordinated fashion in order to avoid future conflicts (American Society of International Law 1988: 1117). This meant that the unilateral development of water resources would no longer be desirable. If it succeeded, this would be a remarkable departure from the prevailing water management regime where the Basin was treated as multinational rather than international. Four core areas formed the scope of the ZACPLAN, including environmental assessment, environmental management, environmental registration and supporting measures (American Society of International Law 1988: 1119). The success of the ZACPLAN process was nonetheless beset by several important problems. Not least, nationalistic tendencies prevented the formation of an implementing agency specifically for the Zambezi River Basin to be hosted within one of the basin states (Nakayama 1998). Instead, the Zambezi River Basin states preferred the project to be implemented by the SADCC under its Environmental and Land Management Sector based in Maseru, Lesotho. Acting in national self-interest, the SADCC as an implementing agency fitted very well, as its agreement allowed national agendas to take precedence if and whenever national agendas could not be reconciled with regional programmes (Barber 1988: 169). The respect of national sovereignty by the SADCC establishment could therefore have been one compelling reason to give it the mandate to oversee this project, since the riparian states would have room to pursue their nationalistic agendas. Moreover, political considerations and the strong interests by the United Nations Environmental Programme (UNEP) in the ZACPLAN, which enabled the initiation of the programme, slowed its

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progress. As some scholars have argued, the ZACPLAN’s attraction was mainly in its political value. In the political context of 1980s southern Africa, the idea of the ZACPLAN afforded the Front Line States (FLS)4 members another opportunity to exemplify solidarity among the blackruled African states on the one hand and isolate the government of South Africa in the region on the other (Spector 2001: 44, Nakayama 1998: 400). Furthermore, as a UNEP-backed project it had all the signatures of UNEP, which might not have been the priority issues of the Basin states. Nakayama states that the ZACPLAN was unique because, unlike other agreements in other river basins such as that of the Mekong and Niger, environmental issues were integrated in the action plan for the Zambezi River waters (Nakayama 1998: 398). Since there was lack of a pressing need to launch the programme due to low levels of water utilization by the riparian states, however, commitment issues marred its progress. Despite the sluggish implementation of the ZACPLAN, it had one important contribution in the mid-1990s. Following the establishment of SADC through the Windhoek Treaty of 1992, resumption of the implementation of ZACPLAN necessitated the development of a regional protocol on shared waters. This was one of the notable outcomes of the ZACPLAN where its implementation became instrumental in the development of the SADC Protocol on Shared Watercourses (Nakayama 1998: 408). This was developed due the need for an integrated water resources management (IWRM) plan for the Zambezi River Basin. The SADC Water Protocol as developed in 1995 was intended to be a guiding instrument to water resources development in the whole of southern Africa. The Protocol was signed on 23 August 1995 by the 10 governments of Angola, Botswana, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe (the World Bank 2010: 156–7, Salman 2001: 317). Each river basin was recommended to develop its own specific water resources management plan. The protocol was ratified in 1998 and thereby entered into force on 29 September of the same year (the World Bank 2010: 157, Salman 2001: 318). The 1995 SADC Water Protocol as developed by its members placed significant emphasis on the institutionalization of river basin organizations. The protocol made provisions for the establishment of the river basin management institutions in Article 3, the objectives of the river basin management institutions in Article 4, functions of the river basin management institutions in Article 5, and financial and regulatory framework for river basin management institutions in Article 6 (SADC 1995: 5–7, Salman 2001: 317). Notably, the protocol was centred on principles that included equitable utilization, balancing up resource development and environmental conservation, cooperation on the development of the water resources, and exchange of information. When the ZACPLAN process resumed in 1998, the government of Zambia withdrew from the process citing an on-going process of its national

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policies and legislative reforms, thereby forcing terminations of the negotiations over the Zambezi Watercourse Commission (ZAMCOM) Agreement (the World Bank 2010: 159). Meanwhile, as a result of the 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses – in addition to concerns that some SADC member states raised in connection with the 1995 SADC Water Protocol – the SADC member states began to revise the 1995 water protocol. An agreement to the Revised Water Protocol was signed in August 2000 and was ratified in 2003 (Salman 2001: 318). Some notable changes in the Revised Protocol were the principles of equitable utilization and no significant harm, adopted from the 1997 UN Convention on the Law of Non-navigational Uses of International Watercourses (ibid.). When the Zambezi Basin riparian states signed an agreement on 13 July 2004 to establish the Zambezi Watercourse Commission, the key focus was to develop an IWRM strategy (ZAMSTRAT) for the Basin. The government of Zambia was the only riparian state not to sign this agreement on the same basis that it was undergoing policy and legislature reviews (the World Bank 2010: 160). The ZAMCOM Agreement reflects the core principles of both the 2000 Revised SADC Protocol on Shared Watercourse Systems as well as the 1997 UN Convention, and these two institutions are clearly referred to in the preamble of the agreement. The ZAMCOM Agreement in particular states that the members commit themselves to the ‘realization of the principles of equitable and reasonable utilization as well as the efficient management and sustainable development of the Zambezi Watercourse’ (SADC 2004: 2). This commitment is the principal aim of the Zambezi River Commission (SADC 2004: 4). Article 5 stipulates the objectives and functions of the commission and article 5(b) centres on the promotion, support, coordination and harmonization functions of the ZAMCOM in order to manage and develop the water resources of the Zambezi watercourse. Article 5(c) stipulates the advising role of the ZAMCOM to the basin states ‘on the planning, management, utilization, development, protection and conservation of the Zambezi Watercourse as well as on the role and position of the Public with regard to such activities and the possible impact thereof on social and cultural heritage matters’ (Ibid). The fact that both the Revised SADC Protocol on Shared Watercourse Systems and the ZAMCOM Agreement have embodied 1997 UN Convention core principles of reasonable and equitable utilization and obligation not to cause significant harm is of analytical interest. Both state practice and legal principles reveal that extreme notions of sovereignty no longer hold in international water management, since no water treaty has been formulated based on such interpretations (Brunne ´e 1998: 54). Other scholars, however, argue that such interpretations of extreme notions of sovereignty may be used as a starting point in water negotiations (Dinar et al. 2007: 74). Even though principles of water management have evolved from the classic

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interpretation of sovereignty on water to what is now understandably limited territorial sovereignty, some scholars still criticize international water law by stating that the law has not fully escaped from the traps of the assumptions of state sovereignty for a problem that has no regard for political borders (see Brunne´e 1998: 66). The basis of the argument is that the nature of water, i.e. its fluidity and the complex set of interdependences it creates, poses challenges to sovereignty – particularly its classic interpretation, i.e. where the government has ‘final and absolute authority within a given territory’ (see Held 2003: 162 on definitions of sovereignty). The critics of international water law therefore argue for the reconceptualization of international water law to reflect the nature of constant flux of water. This means that water management has to be conceptualized at basin level, as a natural hydrologic unit for management, and political borders become secondary. In other words, water allocation should follow the principle of community of interests rather than its current form, where the principle of limited territorial sovereignty forms its underlying basis. International water law as provided, for instance, by the UN Convention on the Law of Non-navigational Uses of International Watercourses obviously attempts to moderate extreme notions of sovereignty on international waters as encoded in territorial sovereignty and territorial integrity. The principle of reasonable and equitable utilization as provided by Article 5 of the convention reflects this compromise position. International water law hence encompasses rights and duties where a riparian state has the right to water use in its territory but is limited by the obligation not to cause significant harm to another state, as provided in Article 7 of the Convention. While there are provisions in Article 6 of the UN Convention aiming at providing guidelines on how to establish what is reasonable and equitable, as provided in Article 5, the fact that they are not weighted has opened up the Convention to criticism. What this means is that the onus to establish what is reasonable and equitable falls on the riparian states, ideally in a cooperative process of claims and counterclaims. Nonetheless, this process may be influenced by power asymmetries, where the state that has capacity to develop its waters unilaterally, sanctions discourse and has the backing of powerful global states can have an upper hand in the process. The outcome may thus not be reflective of a mutually-satisfying water cooperative arrangement5. Several criticisms have also been levelled on the provision of the obligation not to cause significant harm as provided in the Convention. Brunne ´e argues that environmental harm on its own is not ‘legally relevant’, and that it only becomes relevant when the sovereign rights of other states are infringed by it. In other words, if environmental harm by a state hampers other states from enjoying their reasonable and equitable share of the river, then the harm becomes relevant (Brunne ´e 1998: 56). Moreover,

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while harm has to be avoided and states have the right not to be harmed, McCaffrey argues that it is the unreasonable cause of harm that is prohibited (Dinar 2008: 41, Brunne ´e 1998: 61). It therefore means that certain level of harm may be permitted if the state causing harm has taken all the necessary steps to avoid the cause of harm. The phrase ‘significant harm’ may also be problematic and subject to contentious interpretations because levels of tolerance among the riparian states, whether to pollution or changes in flow, may vary. Thus establishing the level at which changes are significant may involve claims and counterclaims among the riparian states. It follows therefore that southern African states, through the SADC Water Protocol and the Zambezi River Basin riparian states specifically through the agreement of the ZAMCOM, by adopting the core principles of the UN Convention have in principle not fully escaped the trappings of the assumptions of state sovereignty in water management. Just as both the SADC Water Protocol and UN Convention adopt it in moderated form, the ZAMCOM Agreement by the Zambezi River Basin states reflects this position. This means, therefore, that contrary to the argument and experiences of the rapid decline of sovereignty in other fields of international cooperation, sovereignty seems not to be eroded at the same pace within international water management at the global and basin levels. The adoption of the core principles of the UN Convention in both the SADC Water Protocol and the ZAMCOM Agreement, without devising more specific principles, may unfortunately provide ample room for nationalistic approaches to water management by the states. The UN Convention, with its generalized principles and unclear outline of arriving at what is reasonable and equitable, relies on the mutual agreement by the states to establish these. States, however, normally engage themselves in international water relations based on their national agendas. Hence, the ZAMCOM Agreement will benefit from the joint development and management of specific projects where the rights and duties of each participating riparian state are specified based on perceived gains and the mutual interests of the concerned states to ensure compliance. It must also be noted that an integrated water sources strategy for the Zambezi River Basin (ZAMSTRAT) was developed and report was issued in 2011. The ZAMSTRAT, while providing detailed projects and timelines, is nevertheless meant to be a starting point for further negotiations (Euroconsult Mott MacDonald 2008: 69). This means that states will continue to play an important role until different water uses are well integrated. It should also be noted that as the number of factors for consideration in a management plan increases, implementation becomes challenging as the technical capacity to execute projects sufficiently may be lacking. For this particular reason, while IWRM is attractive in principle, its execution may be challenging, and if not well planned it may promote non-compliance from the basin states. ZAMCOM became fully established in 2014 with its offices in Harare, Zimbabwe. The decision of the government of Zambia to be part of

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ZAMCOM is also a welcome development. Without Zambia, ZAMCOM would have been limited in carrying out its functions, particularly as they relates to Article 5(b) of the ZAMCOM Agreement, which seeks to ‘promote, support, coordinate and harmonize the management and development of the water resources of the Zambezi River Basin’, and Article 5(c) of the same, which seeks to ‘advise member states on the planning, management, utilization, development, protection and conservation of the Zambezi watercourse as well as the role and position of the public with regard to such activities and possible impact thereof on social and cultural heritage matters’. Not being party to ZAMCOM, Zambia might have proceeded with its water resources development unilaterally as long as it was not in contravention with the provisions of the UN Convention, particularly Articles 5 and 7. So far, this has been the standard practice by all the riparian states regardless of the agreements in place, only cautioned by the fact that water use is still low in the Basin. Nevertheless, while attending to nationalistic projects but at the same time being cognizant of the provisions of international water law is a testament of paradigmatic shift in water management from classic interpretations of sovereignty to a moderated form where states, even in the absence of a treaty, are still obligated not to cause harm to other states. For ZAMSTRAT to be truly effective, there is need for the full participation of all states in the process. This is because integrated and coordinated planning is central to IWRM (Dombrowsky, I. 2007. Conflict, Cooperation and Institutions in International Water Management: An Economic Analysis. Cheltenham: Edward Elgar) and may not be facilitated if not all riparian states are bound by the ZAMCOM Treaty. Conceptually for IWRM to be effective, it has to be implemented at the basin level as a logical hydrologic unit of management. Of course, empirical evidence shows that in many water agreements, not all uses are truly integrated and hardly any cover the entire river basin; hence the challenges that ZAMCOM may face may not be unique (Dombrowsky 2007: 12). Zambia is significant in the Zambezi River Basin because of both its basin position and its hydrologic contributions to the Basin. In this case, what IWRM aims to achieve is to transform a river basin from a physical region, traditionally territorial and in the realm of the state to a functional region, organized in the line of functions and normally in the realm of non-state actors (see Kelly 2009: 268, Va¨yrynen 2003: 27)6. Rather than territorial differentiation and practices of exclusiveness, the basin has to be transformed into an open space of interactions. In other words, IWRM has to move from the field of foreign policy, as is the case now in southern Africa, to international relations where different interest groups are involved, including energy producers, scientists, farmers, municipals and the general public (Kelly 2009: 268). Instead of departing from the notions of anarchy in the international system where states have to duly protect their sovereign interests, functional regionalism such as that

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driven by IWRM is ideally issue-centred and cuts across political boundaries (Va¨yrynen 2003: 27). Highlighting the possible reasons for Zambia’s withdrawal from ZAMCOM other than those provided officially by the Government of Zambia involves some kind of postulation. During the consultative process of developing the ZAMSTRAT, Zambian officials raised concerns over the security of information sharing (Euroconsult Mott MacDonald 2008: 179). Dinar et al. (2007) argues that states may have concerns about sharing their information, particularly if such actions can potentially affect them negatively. For instance, if information sharing places the state at a disadvantage during international water negotiations, that state might be reluctant to share its information. It is unclear, though, what sort of areas are of main concern to the security of the data from Zambia. However, information sharing is important in creating a transparent environment. The mere perception of unfair conduct by a riparian state in international river basins might lead to conflicts. Readily-available data therefore help to allay misconceptions. It is also pretty clear that Zambia is well watered compared to other Basin states particularly south of the Zambezi River. In its current drive to industrialize with financial backing from the Chinese Government, the Zambian Government may give due consideration to the pace with which developments need to be carried out. Going through a third-party institution may thus be viewed as a hindrance to the implementation of the national agenda. Without the participation of Zambia, the work of ZAMCOM might have been reactive rather than proactive in a situation where conflicts arose in the Basin. In that case, both the SADC Water Protocol to which Zambia is a signatory and the UN Convention, particularly its Articles 5 and 7, may be used to resolve the situation. For Brunne´e, the problem with both Articles 5 and 7 of the UN Convention is that their phrasing places no obligations on states with regards to their observance (Brunne ´e 1998: 60). The Convention was adopted by the UN General Assembly on 21 May 1997, but was only ratified in 2014 making it binding. By 2009, only 18 countries had ratified the convention (McIntyre 2010: 66) and by the end of 2012, the number of ratifications were still short of 35 required to make the law binding. Of those who ratified, Namibia was the only country to do so within the Zambezi River Basin; and only two, including South Africa, if the whole SADC region is considered. Some scholars have pointed to the teething issues of sovereignty as a major drawback to the ratification as some states have raised concerns about the UN Convention’s failure to adequately recognize state sovereignty and perception of it as in favour of downstream states (Schwabach, op. cit., Dinar 2008: 42). Even though the convention took long to be ratified, it was referred to in resolution of conflicts between states. McIntyre highlights the Gabcˇ´ıkovo-Nagymaros case where the International Court of Justice made a ruling with reference to the UN Convention despite it not being ratified (McIntyre 2010: 66).

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This means that even if Zambia was not party to ZAMCOM and proceeded to develop its waters unilaterally, if any grievances arose from the other basin states, the 1997 UN Convention might still have been used by the International Court of Justice to settle a dispute. CONCLUSION The arguments about the shrinking role of the nation-state in the wake of globalization and the on-going reorientation of both vertical and horizontal connections at sub-national, national and trans-national levels has never been strong. Indeed, there are many areas where state sovereignty and influence as well as the space for unilateralism are shrinking, raising many questions about nations and nationalism as we know them today. However, international treatment of water issues has not moved at the same pace as changes brought by economic transformations. International water law is still couched with state sovereignty in mind. This probably has to with the nature of water, as water is rarely subjected to the economic rationality that guides other resource appropriations (Coopey & Tvedt 2006: ix). Globalization, in contrast, has been fuelled by economic transformations at global scale with implications for social organization at local scales. Water issues understandably have been less influenced by such changes, despite the declaration of water as an economic good during the Dublin Conference of 1992. Strong consideration for sovereign interests and nationalistic tendencies by the Zambezi River Basin states has hampered intra-regional interconnections in the past. Such issues have been blamed for the long and protracted negotiations on international water management, such as the ZAMCOM Agreement (Valy 2004: 5). Understandably, the prevailing political and security environment during some periods in the past decades has reduced the incentives for participating in international projects. Despite the rugged history of the basin and southern Africa as a whole, the states in the region have made tremendous strides by drafting and ratifying basin-wide water management agreements. Nonetheless, the adoption of core principles of the UN Conventions subjects these agreements to the same criticisms that have been levelled against international water law. In short, international water law has not fully outdone state sovereignty and nationalism, as it generally relies on the states to establish the rights to water and agreements on any forms of compensation. While several key basin-wide water management agreements ratified in the Zambezi Basin point to a more cooperative environment, in reality, water resources development in the Basin has largely been national (SWRSD 2011: 1). This only highlights the complexity associated with international water management, the enormous technical and financial resources required to bring about change, and the long

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periods it takes to make reasonable progress in coordinated water management. Hence, even though the political environment has changed dramatically in the last two decades, water management is yet to move significantly from the realms of the state and its nationalistic sentiments. On the back of chronic underfunding in the development of water infrastructure, the Zambezi River Basin states are encouraged to carry out reforms, reduce state participation in water and energy utilities, remove bottlenecks in the investment portfolio, and enhance interconnections in order to become competitive and attract funding. In this way, globalization is inescapable as the market institutions determine the role of the state. Little progress has, however, been made in this regard in the Basin states. International agreements still reflect the strong role of the state, not just in water but also in other important areas including energy generation. IWRM at international basin level attempts to reorient the approach to water by reducing competitive sentiments by the states and instead forge cooperative state relations. In fact, for IWRM to be successful states will have to shift from physical water allocations – which is territorial and undeniably in the realm of the state – to sharing benefits, which transforms a physical region to a functional region. Moreover, where water management is based on sharing of benefits, the physical locations of the resource take a secondary role, security risks are reduced and civic nationalism is enhanced whereby individuals are organized based on shared interests rather than territorial belonging. This means interest groups in water use approach water management as a particular group based on use type rather than territorial belonging. Regardless of this, empirical evidence shows that there is a gap between theoretical provisions in IWRM and the actual practice of water management. For this too, IWRM has been criticized either as an elusive concept or as overly ambitious because states lack capacity to implement it (Dombrowsky 2007: 13). While strides have been made within international environmental law to reflect on the realities of complex interdependency, sovereign interests still dictate the couching of international water law and agreements (Brunne ´e 1998: 59). The role of the state in entering into international agreements makes it relevant to international water. After all, the state may be well placed to enforce international agreements at local level on behalf of a third-party institution, such as ZAMCOM in the case of the Zambezi River Basin. International water law may therefore be realistic in entrenching some levels of sovereignty. Despite this, some scholars highlight the need for conceptual change to international water law. International water law just as environmental security in general should thus promote cooperative behaviour rather than competitive behaviour (Brunne´e 1998: 58). Sovereignty considerations must therefore reflect on cooperative rather than competitive tendencies.

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NOTES 1 2 3 4

Calculations by Balon and Coche, 1974. Held citing the works of Falk, 1969, Cassese, 1986, and Held, 1995. Chenje quoting a Federal Ministry of Power official from an undated memo. FLS – a political grouping of six countries advancing the decolonization of southern Africa States, particularly South Africa and Namibia. The FLS members included the governments of Angola, Botswana, Mozambique, Tanzania, Zambia and Zimbabwe. 5 The wholesome acceptance of water cooperation as the desirable outcome is being criticized by the proponents of hydro-hegemony theory, notably Warner and Zeiton, but also other scholars such as Selby on the basis that this approach masks the power asymmetries that benefit hegemonic states at the expense of non-hegemonic states. The Israel–Palestine Water agreement has been highlighted to this effect by Selby (Zeitoun & Warner 2006, Selby 2013). 6 Interpreted from Va¨yrynen 2003’s work on Regionalism: Old and New.

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Green Cross International, National Sovereignty and International Watercourses (Geneva, Green Cross International, 2000). Dinar, S., International Water Treaties: Negotiations and Cooperation along Transboundary Rivers (Oxon; New York, NY: Routledge, 2008). Dombrowsky, I., Conflict, Cooperation and Institutions in International Water Management: An Economic Analysis (Cheltenham, MA: Edward Elgar Publishing Limited, 2007). Euroconsult Mott MacDonald, Integrated Water Resources Management Strategy and Implementation Plan for the Zambezi River Basin (SADC-WD/Zambezi River Authority-SIDA/DANIDA, Norwegian Embassy Lusaka, 2008). Hance, W.A., ‘The Economic Potentialities of the Central African Federation’, Political Science Quarterly 69/1 (1954), pp. 29–44. Held, D., ‘The Changing Structure of International Law: Sovereignty Transformed’, in Held, D. and McGrew, A. (eds), The Global Transformation Reader: An Introduction to Globalization Debate (Cambridge: Polity Press), pp. 162–76. Hosier, R.H., ‘Energy Planning in Zimbabwe: An Integrated Approach’, Ambio 15/2 (1986), pp. 90–6. Kelly, R.E., ‘International Water Security: Domestic Threats and Opportunities’, Development in Practice 19/2 (2009), pp. 267–9. Markakis, J., ‘Nationalism and Ethnicity in the Horn of Africa’, in Yeros, P. (ed.), Ethnicity and Nationalism in Africa: Constructivist Reflections and Contemporary Politics (London: MacMillan Press Ltd, 1999). McIntyre, O., ‘International Water Law: Concepts, Evolution and Development’, in ¨ jendal, J. (eds), Transboundary Water Management: Earle, A., Ja¨gerskog, A., O Principles and Practices (London: MPG Books, 2010), pp. 59–72. Mihalyi, L.J., ‘Electricity and Electrification for Zambia’, Geographical Review 67/1 (1977), pp. 63–70. Munslow, B. and O’Keefe, P., ‘Energy and the southern Africa Regional Confrontation’, Third World Quarterly 6/1 (1984), pp. 25–42. Nakayama, M., ‘Politics behind Zambezi Action Plan’, Water Policy 1 (1998), pp. 397–409. Newman, S., ‘Nationalism in Postindustrial Societies: Why States Still Matter’, Comparative Politics 33/1 (2000), pp. 21–41. ¨ zkirimli, U., Theories of Nationalism: A Critical Introduction (London: O MacMillan Press Limited, 2000). Pachova, N.I., Nakayama, M. and Jansky, L. International Water Security: Domestic Threats and Opportunities (Tokyo: United Nations University Press, 2008). Poku, N. (ed.), ‘Uneven Globalization and Human Insecurity’ in Africa: Security and Development in southern Africa (Connecticut: Praeger, 2001). Reis, E.P., ‘The Lasting Marriage Between Nation and State Despite Globalization’, International Political Science Review/Revue international de science politique 25/3 (2004), pp. 251–7. southern African Development Community, Protocol on Shared Watercourse Systems (Gaborone: SADC, 1995). ———, Agreement on the Establishment of the Zambezi Watercourse Commission, (Gaborone, SADC, 2004). Sadoff, C.W., Whittington, D. and Grey, D., Africa’s International Rivers: An Economic Perspective (Washington DC, WA: World Bank, 2002).

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Sadoff, C.W. and Grey, G., ‘Cooperation on International Rivers: A Continuum for Securing Shared Benefits’, Water International 30/4 (2005), pp. 1–8 Salman, S.M.A., ‘Introductory Note to SADC: Revised Protocol on Shared Watercourses in the southern Africa Development Community’, International Legal Materials 40/2 (2001), pp. 317–19. Selby, J., ‘Cooperation, Domination and Colonisation: The Israel-Palestine Joint Committee’, Water Alternatives 6/1 (2013), pp. 1–24. Shaw, T.M., ‘Regional Cooperation and Conflict in Africa’, International Journal 30/4: pp. 671–88. Spencer, P. and Wollman, H., Nationalism: A Critical Introduction (London; Thousand Oakes; New Delhi: Sage Publications, 2002). SWRSD Zambezi Basin Joint Venture, Transboundary Water Management in SADC: Dam Synchronisation and Flood Releases in the Zambezi River Basin Project (Gaborone: SADC, 2011). Valy, B., ‘Zamcom Process will inform other agreements on shared watercourses’, The Zambezi 6/1 (2004), p. 5. Va¨yrynen, R., ‘Regionalism: Old and New’, International Studies Review 5/1 (2003), pp. 25–51. World Bank, The Zambezi River Basin: A Multi-Sector Investment Opportunities Analysis, Vol. 1 (Washington DC, WA: The International Bank for Reconstruction and Development, 2010). Yeros, P. (ed.), ‘Introduction: On the Uses and Implications of Constructivism’, in Ethnicity and Nationalism in Africa: Constructivist Reflections and Contemporary Politics (London: MacMillan Press Ltd, 1999).

27

Water systems, Water Agreements and State Sovereignty: The Case of the Nile Waters Agreement of 1929

Terje Tvedt INTRODUCTION Few societies have existed without water laws of some sort. The fundamental reason for this unique situation is that water is the only truly universal resource that all societies at all times have had to control, relate to and often share. Since water always runs through the societies it helps to create and sustain in different ways, and these societies, when exploiting such a resource, enter into particular relationship with their water systems, different water law traditions have developed in different localities, regions and river basins. Comparative studies of water law in this perspective are an undeveloped field. In order to understand the great variety in water law systems and their characteristics, it is necessary to analyse the water systems as well as the particular histories of the regions in which these legal traditions have developed. It is crucial to understand that for a long time water law developed in a highly local manner that reflected the history, geography and political systems of the areas concerned. It is also important to understand how these contexts of time and specific localities have shaped the legal discourse. At the same time, it is striking how the different water law systems of the world exhibit certain recurring patterns. This is partly the result of the diffusion or migration of ideas about water management and water law, but it also reflects the fact that water is not only particular; it is also always universal, in the sense that water is the same everywhere: constantly in flux, always seeking a lower point, and ultimately escaping efforts to control it. This chapter will reconstruct the historical and geographical context of the Nile Waters Agreement of 1929 as a case in point.1 One of the first places where water law developed was along the River Nile, during the time of the pharaohs. The discussions in this part will not focus on this early period, however, but on the development of Nile agreements in the modern epoch, especially during the colonial period when the British Empire was still the dominant power in the region.

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In addition to presenting a historical background to the Nile Waters Agreement of 1929 – an agreement that still is at the centre of the current debate among the Nile Basin states on how the Nile waters should be managed and allocated – the chapter will discuss how river hydrology and river physics impacted the agreement in ways that often tend to be overlooked in legal discourses on river agreements and water laws. Due to the fact that river systems have helped to create different man–environment relations and development patterns along long stretches of a particular river (in this case, the Nile), the legality or continued validity of agreements concluded at a certain point in time will certainly be questioned somewhere down the timeline. Any accord on the use and allocation of large rivers will, of course, reflect existing power hierarchies in the basin and dominant conceptions of the river system. The problem is that areas and states along a major river basin often develop unequally, and therefore develop uneven patterns of water demands and consumption; this subsequently results in the acquisition and formulation of different conceptions of entitlements and attributes of the river itself. Long and complex international river systems will, due to different ecosystems or river landscapes, encourage different types of social and economic developments along the rivers’ banks and tributaries, and hence influence or frame localized use of water over time. There is often a structural relationship between a particular river basin, its hydrology and geography on the one hand, and the patterns of ‘established uses and rights’ to the water in the same river basin on the other. In this context too, the Nile shall be a case in point. Lastly, the Nile Waters Agreement can also demonstrate that cooperation over international river basins will, contrary to common belief, not always erode state sovereignty but might strengthen it, because it provides a promising arena for exercising and acquiring state authority. A study of the 1929 Agreement may throw new light on a somewhat ahistorical legal debate about the relationship between sovereignty and water law. THE 1929 EXCHANGE OF NOTES The Nile Waters Agreement, consisting of the exchange of notes in May 1929 between the British high commissioner in Egypt, Lord Lloyd, and the Egyptian government, came to have a profound impact not only on the Anglo–Egyptian relations and relations between Egypt and the Sudan, but also on economic developments in Uganda, southern Sudan and, indirectly, on Ethiopia up to the present day. Without doubt, it has been an important factor in the history of Nile politics, in international river basin management in general and in the evolution of international watercourses law. As an agreement on the use of international river waters for purposes other than navigation, and particularly in presenting a detailed water allocations

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regime between Egypt and Sudan, the treaty has been hailed as one of the first of its kind in the world. On 7 May 1929, in one of the letters exchanged with the Egyptian government, Lord Lloyd emphasized that Great Britain had committed itself to guaranteeing Egypt’s future water supply. Lloyd wrote to the British government regarding the safeguarding of those rights as a ‘fundamental principle’ of British policy, which would be observed at ‘all times and under all conditions’.2 London also accepted the judicial principle that the first user (the word ‘first’ being interpreted in the historical rather than in the geographical sense) of waters of the stream, i.e. Egypt in this case, should have priority in the disposal of waters it had hitherto utilized. The Treaty made it possible for Egypt to build water control works necessary to itself in the Sudan and other upstream countries, block irrigation works that could harm the Nile discharge in Egypt, and reassert historical rights to waters of the River acquired through long use. An intriguing aspect of the agreement was that the exchange of letters did not define water rights in quantitative terms. It was, however, accompanied by a technical report of the 1920 Nile Projects Commission, which has been interpreted as allocating 48 billion m3 of Nile waters for Egypt and 4 billion m3 for Sudan each year. The 1929 Nile Waters Agreement was a treaty between two consenting states who wished to regulate their relationship on certain matters; it bound those who signed it, as well as other states on ‘whose behalf Great Britain assumed an undertaking’ on the basis of its colonial position, i.e. the Sudan itself, Uganda, Kenya and Tanzania. Whatever regime the agreement formed, it applied only to parties to the Treaty, and no others. In legal sense, it can be described as a ‘law’ between those parties, although it does not constitute a corpus of ‘public international law’ as such. What were the historical background and the hydrological context of the agreement on Nile waters, and why is it fruitful to analyse both the particular geopolitical situation and the character of the geographical structure of the resource that was the subject of the Agreement? THE COLLAPSE OF A NILE BASIN REGIME UNDER ONE RULE By the late 1920s the pioneers of British basin-wide Nile policies, Lord Cromer and William Garstin, Lord Kitchener and William Willcocks, Sir Reginald Wingate and Murdock MacDonald, had all left the scene, and the heydays of British Nile control were already a thing of the past. In 1908, Cromer had confidently declared that ‘the Englishman’ had taken the entire Nile in hand. For the first and only time in the Nile’s history, one might talk of a ‘King of the Nile waters’ – Lord Cromer. At the time, his and his government’s plans for taming the entire river were very ambitious in

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comparison with most other river systems in the world, and all the projected dams and water infrastructure installations were designed to serve the overall interests of one imperial authority.3 Ten years later, however, British hydropolitical grip on the Nile River had loosened. London’s policy had always aimed at stability in Egypt and development of the country’s irrigation infrastructure, especially related to cotton production during the summer time, or the Nile’s low season. Their idea was again formulated by Lord Cromer: it was Nile control that should convince the ‘Oriental Mind’ that it should accept the West and Britain’s leadership. London’s main Nile strategy was that the White Nile, which provided almost all of the water during the summer period, was the most important river at the time and should be used by Egypt. The Blue Nile could not be dammed and the flood water could not be stored for the summer season due to the high concentration of silt in the flood water.4 For this reason, construction of the first Aswan Dam, completed in 1902, and the crowning achievement of the Cromer–Garstin regime was built only for seasonal storage of the relatively silt-free water of the tail of the flood. During winter seasons, Sudan’s Gezira area on the island between the Blue and White Niles would take water by gravity from the Blue Nile after building the Sennar Dam; at this time of the year, Egypt did not need waters from the Blue Nile. These hydrological and topographical facts shaped the foundation of British Nile policies. The Egyptian revolution of 1919 set in motion political forces that tore apart the Imperial Nile strategy, but did not change London’s analysis of the role of the River and the relative importance of its two tributaries for Great Britain’s overall policy objectives. The political issue of who should control the use of the entire river system came to play an important but neglected role in the struggle for Egyptian independence. The Nile question became part of the nationalist political agenda. The revolution in 1919 and the British declaration of Egyptian independence in 1922 suddenly changed the political landscape and the context of British Nile planning. Despite the changes, Britain’s main strategic aims in the Nile valley still remained the same: to secure its political and military position at the Suez and to increase the export of long-staple cotton to Lancashire. Achievement of the two objectives was seen as being dependent upon the same factor – increased exploitation and control of the Nile waters. The strategy that had been laid down so forcefully at the beginning of the century, however, could no longer be implemented in the 1920s. Egypt had won formal independence in 1922, but it had a vulnerable geopolitical position as a downstream state, a concern disclosed and continually articulated by the nationalist elite. The Egyptian nationalists sought control of the Nile and regarded Sudan as an integral part of Egypt, but gradually they realized that Britain’s policy in the Sudan had effectively weakened Egypt’s position there. Britain had ‘lost’ Egypt, but was still a strong upstream power on the Nile since it had occupied the whole stretch

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of the river from Aswan to the Great Lakes in Uganda, and worked on strengthening its position on the Blue Nile in Ethiopia. Britain was looking for a means of maintaining its influence and military presence in a country that had opted for independence and where the opposition to Britain was very strong. What options did London have? BRITAIN’S USE OF THE NILE AS A GEOPOLITICAL INSTRUMENT London had both the financial and technological capacity to control, or threaten to control, the water discharges of Egypt’s lifeline because of its hold on many of the upstream countries. The following quote from archives of the British Foreign Office is an example of one of the many secret documents outlining identical visions of Nile control as a geopolitical instrument: His Majesty’s Government are indeed in the position of being able to threaten Egypt with the reduction of her water supply, and this is sufficient in itself to create a feeling of anxiety and resentment in Egyptians; on the other hand His Majesty’s Government cannot offer to increase the water supply of Egypt unless the construction of the Tsana reservoir is undertaken. Once this work is completed, they will be able, without in any way abandoning their power to damage Egypt by reducing the supply, to tranquillise Egyptian anxiety by offering to increase that supply to a very great extent.5

The British strategy was based upon their reading of the Egyptian waterscape and Egypt’s vulnerability. In the southern parts of the country, precipitation could be less than 10 mm per year, and in Cairo the yearly average was only 18 mm. Nearly the entire Egyptian population lived on the banks of the River, and all economic activity depended upon it. London’s aims at the time concentrated on developing irrigation and cotton production in the Sudan and on encouraging a development in the Sudan that weakened Egypt’s position and strengthened the hand of London. Great Britain regarded control of the Sudan as a means to control Egypt and the Suez. As was written in one secret memoranda, ‘The power which holds the Soudan has Egypt at its mercy, and through Egypt can dominate the Suez Canal’.6 Britain wanted to use its control of the Nile as a means to develop a distinct Sudanese identity vis-a `-vis Egypt. Hence, water withdrawals in the Sudan (and plans for the Lake Tana Reservoir) became keystones in London’s efforts to maintain its regional political influence. Developments in long-staple cotton production in Egypt and changes in the international cotton market made the Gezira scheme more important to British industries and to Sudanese finances. Since the river runs through Sudan and it is possible, topographically and geologically, to build large dams on

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the river and divert the waters into the Sudanese desert, London understood the immense political and economic potentials of Nile control. THE ALLENBY ULTIMATUM OF 1924 The so-called Allenby ultimatum should be accorded appropriate emphasis in any broad analysis of the 1929 Agreement and its causes. In 1925, with great fanfare but with little success, the British exploited their upstream control of the Nile as a weapon against Egyptian nationalists. In historical annals, this move has been called the Allenby ultimatum, named after the British leader of Egypt and the Sudan at the time. While the British work on the Sennar Dam and on the Gezira scheme in Sudan went on, the radicalization of the Egyptian people continued. The enforced compromise on the upper limit of how much water the new Gezira scheme should be allowed to take did not much help to weaken the nationalist movement in Egypt, while at the same time the cotton industry both in Sudan and Great Britain found it a highly unwelcome strait jacket. Since 1912, the latter had publicly referred to the scheme’s enormous potential, which became obvious to everybody when work started. The higher cost of the project also encouraged higher productivity goals. Water and cotton were still in short supply, with consequences for corporate profits and the local population. For example, the Sudan government had instructed that all the cotton should be sold abroad; local women were forbidden even to hand-spun cotton. If a man on a pumping station kept back a bit of cotton for spinning, it was regarded as stealing and punishable by prison. According to a British administrator, Sudanese women said: ‘Isn’t it our land? Why shouldn’t we women have a bit of cotton? Truly this government is hard on women’ (Crowfort 1924: 86). The problem was how to get more water to the land. Meanwhile, in Egypt the upper classes increasingly feared that the agitation of the nationalists had unleashed a political attitude among the population that could threaten their own position. To dampen this radicalization, former allies of the nationalist leader, Saad Zaghlul Pasha, were now willing to work with the British. The Liberal Constitutionalists’ Party was formed and a constitution was promulgated. In the intervening time the Makwar Dam was being built, which was then regarded in Egypt as a fait accompli. The Wafd won a sweeping victory in the elections, and in January 1924 Zaghlul became prime minister. During that year, a number of British officials and Egyptian collaborationists were murdered by hard-line nationalists. Then, on November 19, Sir Lee Stack, governor-general of Sudan and British commander-in-chief of the Egyptian Army, was assassinated. The assassination was a blow to the Egyptians, who wanted to normalize relations with Britain and a debacle to British security in the region; however, it also created an opportunity for tough action.

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His Majesty’s government, Allenby and the Sudan government described the murder not simply as the work of extremists, but rather as the natural outcome of a campaign of hatred mounted by Zaghlul and other mainstream nationalists. A situation had emerged in which the British thought they, with a cloth of legitimacy, could clamp down harshly on Egyptian opposition, with some support at home and abroad. And so they did – immediately and severely. First, they implemented the scheme for the elimination of Egyptian personnel in Sudan, which had been secretly drawn up in 1920,7 thus hoping to remove Egypt as a partner in the running of Sudan (Vatikiotis 1991: 388). What shocked the Egyptians most, however, was the issuance of the Nile ultimatum on 22 November 1924. As a direct and explicit reaction to the assassination of Stack, the British representative in Egypt, Lord Allenby, on the day of Stack’s funeral, went to Zaghlul’s official residence making a point of not saluting on entering or leaving the residence. While trumpeters played the British national hymn outside, he read out load his famous Nile notice: the Sudan Government will increase the area to be irrigated in the Gezira from 300,000 feddans to an unlimited figure as need may require.

What the Egyptians feared had come to pass. The British reactivated their downstream complex. London gave the Egyptians a demonstration in waterpower that would never be forgotten, and which affected the way British Nile policies were later conceived and interpreted. The area of cotton farming in the Gezira was to be increased without asking Egypt (they did not threaten unlimited irrigation in Sudan, only in Gezira), thus annulling the commitment made in 1920. Allenby later wrote that his intentions were to impress upon Egypt ‘the extent of a Power which the country, to its own detriment and ours, had been too long purposely taught to despise’.8 This extent of power was the authority to dam the Nile, and he knew that would strike at the very centre of the Egyptian downstream complex. Now the time had come to show the fist, he thought. A number of important political changes followed. Zaghlul did not accept Allenby’s demands and resigned the day after. Ahmad Ziwar Pasha formed a new government, which accepted the British demands unconditionally. At the same time as they demonstrated the power of the Nile weapon, they attacked other Egyptian positions in Sudan. All Egyptian Army units were expelled from Sudan, and a new Sudanese Defence Force separate from the Egyptian Army was established. The Sudanese battalion that mutinied in support of the Egyptians was annihilated. On 27 and 28 November 1924, more than 20 people were killed. Four officers who deserted gave themselves up, and three were sentenced to death and shot by a firing squad. The ideas of the League of Sudanese Union – which towards the end of 1922 had sent a letter to Prince Umar Tusun of Egypt in which it was stated that in Sudan

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there was a movement ‘the purpose of which is to support the Egyptian people’, expressed its belief that ‘the Sudan should never be separated from Egypt’ and exalted the cause of the ‘the Nile Valley from Alexandria to Lake Albert’ – was clamped down on.9 In Britain, politicians publicly disagreed about this use of the Nile power. Ramsey MacDonald, who just had stepped down as the Labour prime minister and foreign secretary (January–November 1924), criticized the ultimatum. He regretted that Britain had now told the Egyptian cultivator that they ‘hold him in the hollow of our hands’. As a prime minister, Ramsey MacDonald had, on 10 July 1924, delivered a speech in the House of Commons: I give my word and the Government guarantee [...] that we are prepared to come to an agreement with Egypt on this subject which Egypt itself will accept as satisfactory. That agreement will be carried out by a proper organisation as to control (this did not materialize), and so on, and under it, all the needs of Egypt will be adequately satisfied. The Egyptian cultivator may rest perfectly content that, as the result of the agreement which we are prepared to make, the independence of the Sudan will not mean that he is going to enjoy a single pint of water less than if he had it and was himself working it.10

The Egyptians had been frightened, MacDonald admitted, but he suggested another course more in line with what he called British traditions. They should not ‘take a single gallon of water required for Egypt’, but should instead get a joint ‘board set up to deal with the whole problem of the Nile water in the Sudan and Egypt [...] and you and we will cooperate to produce peace, happiness and prosperity’.11 Change in British tactics and the 1929 Agreement In the latter half of the 1920s, the British government worked hard to improve the Empire’s public image in Egypt; it aimed at establishing a system for Nile development that was realistic and expansive, and that was adapted to the new political–strategic situation. London clearly realized that there would be no chance of negotiating a new overall treaty with Egypt on outstanding issues like the Suez, unless the political damage of the Nile ultimatum was repaired. British strategists had, however, reassessed Cromer and Garstin’s policy, now described as being ‘too closely associated with exclusive Egyptian control’ of the Nile and partly blamed it for reassuring what was called the ‘monopolistic attitude’ so deeply engrained in Egyptian public opinion. London realized that having ‘lost’ Egypt as a protectorate, it could no longer implement the basin-wide plans of the past, but the Foreign Office in London tried to maintain the role previously occupied by the Nile regime of Lord Cromer and his close associate, the water planner William Garstin. Their aim was to continue as a kind of general command of the Nile development, but in a very different political atmosphere.

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During this period, the Foreign Office in London regarded itself as the natural control centre and think-tank for utilization of the Nile. When Allenby had suggested that Great Britain might consider it expedient to seek from the League of Nations a British mandate for the Nile and its waters as distinct from any territorial question, this reflected the mood, but it was a wholly unrealistic proposal. Sitting at their desks in Whitehall close to the Thames, the policymakers and foreign policy bureaucrats in London conceived of the Nile as a river in which Britain had both an interest and a duty to control. In the 1920s they not only faced nationalists, kings, emperors and rivalling European and American powers in the Nile valley, but they also had to balance the interests of British companies, the Colonial Office and public opinion at home and abroad. The very complex imperial, political set-up did not make it easier: Britain had a high commissioner in Egypt but the country was formally independent, although London had reserved the Nile for itself; Sudan was ruled from the Foreign Office in London, Uganda was under the Colonial Office in London, Kenya was about to become a white settler state, Tanganyika was ruled by a British governor and commander in chief, after Britain under the Treaty of Versailles (1919) had received a League of Nations mandate to administer the territory. In Ethiopia, finally, London had a British representative and the 1902 agreement with Emperor Menelik II dealing also with Nile utilization. In Eritrea, Rwanda, Burundi and Congo, London had agreements with the respective colonial powers guaranteeing that these powers would not build dams on the Nile without British consent. THE NILE WATERS COMMISSION OF 1925 To counter what the British described as Egypt’s monopolistic attitude and at the same time repair the damages caused by the Allenby ultimatum, London came up with different initiatives that would enable it to maintain its role as mater of the River. The Egyptian prime minister, Ziwar Ahmad Pasha, who had unconditionally acceded to all British demands when taking power after Zaghlul resigned, complained in 1925 that the Egyptian government had always maintained that the development of irrigation in Sudan must in no way be of such a nature as to damage irrigation in Egypt or to prejudice future projects that were crucial to meeting the needs of the country. He felt that ‘this principle’ had been fully admitted by His Britannic Majesty’s government in the past.12 In early 1925, he asked Allenby to revoke the instructions in his Nile ultimatum, which had so infuriated and shocked the Egyptian public. This gave London an opportunity to declare a shift in policy. Allenby replied the same day that the British government was disposed to direct the Sudan government ‘not to give effect’ to the previous instructions mentioned in his ultimatum.13 The British line was now to tell

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Egyptians that only Great Britain could guarantee them the water they needed, a guarantee less trustworthy after the Allenby ultimatum than before, it is true, but carrying greater political weight, perhaps, since the British had already proved its power upstream. London now wanted to be seen as a kind of broker between the more aggressive Nile policy being pursued by the Sudanese government – led by the British but with support from the Sudanese who wanted to invest in profitable irrigation agriculture, on the one hand, and Egypt, on the other. The British strategists now aimed at convincing the Egyptian general public that Egypt would be compensated for water taken at Sennar – and with London’s help. At the same time, it was strategically important to break down what London called the ‘monopolistic attitude’ of Egyptians to the Nile waters. Since the 1920s, they had been discussing whether to establish some kind of Nile Board or Nile Commission which could bring more actors and more countries onto the Nile scene. Cairo was sceptical, but after repeated initiatives from London and in the aftermath of the Allenby ultimatum, a Nile Water Commission was appointed in 1925. Officially, its purpose was to examine and propose a basis on which irrigation in Sudan could be carried out with full consideration of the interests of Egypt, and ‘without detriment to her natural and historic rights’.14 It should define, among other matters, what the well-informed London Times described in its issue of 27 January 1925 as ‘the vested rights of Egypt and of the Sudan’. The aims of the Commission became far less ambitious due to Egyptian opposition. Originally it had three members, but the chairman from the Netherlands died in June 1925. The other two members were R. M. MacGregor, the representative of the Sudanese government, and ‘Abd al-Hamid Pasha Sulayman, the Egyptian representative. In February 1926, they produced a final report.15 The Commission, weak though it represented an important break with the past, and its report reflected the new political map in parts of the Basin. It can thus serve as an illustration of the political pedagogy of water reports in transboundary or international river basins. For the first time in the River’s long history, a representative of an upstream state (the Sudan government) discussed Nile waters on an equal footing with Egypt. Sudan was also given permission to have an Irrigation Department under Khartoum’s authority; after all, matters related to the Nile had until that time been undertaken under the supervision and management of the Egyptian Ministry of Public Works. The Commission also formally accepted Sudan’s right to withdraw water for the Gezira scheme. The report concluded that Egypt should be ‘able to count on receiving all assistance from the administrative authorities in the Sudan in respect of schemes undertaken in the Sudan’,16 and very importantly, it was underlined that Sudan should accept a limited rate of irrigation development.17 In the short term, it was significant that the Commission abolished the limitation on the cultivated area in Gezira and substituted it with a

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volumetric limitation. There were obvious technical and practical arguments for this, since it established a more controllable and flexible system. This change in how water demands were measured technically also gave Sudan an additional benefit that neither the British nor the Sudanese government disclosed. MacGregor, the British engineer who was in charge of irrigation and Nile control in Sudan, knew that the official required water/feddan ratio in Gezira had been grossly inflated by the former boss of Egyptian water and Nile control, Murdoch MacDonald.18 Thus, more land could be irrigated per cubic metre of water than was officially known. MacGregor calculated that it would be possible to extend Gezira by about 1 million feddans without extracting more water from the River, which meant that the scheme could be expanded without detriment to the interests of Egypt. Allenby informed the foreign secretary of this discovery. The experts disagreed about the figure of feddans that could be watered now, but the implication had been that the Allenby ultimatum turned out to have been unnecessary from a ‘water demand’ point of view. His Majesty’s government was subsequently, due to the inflated figures produced by MacDonald, given much more leeway vis-a `-vis the British cotton industry and the Sudan government, which both sought a bigger and more incomegenerating Gezira scheme. Due to this ‘mistake’ in the past, they could have it both ways now; they could have an enlarged cotton farm in the Sudan, while London could try to repair the political damage done in Egypt. What has been interpreted in the literature as a rapid British ‘change of mind’ vis-a`-vis Egypt was, therefore, partly an upshot of quite different factors; MacDonald’s inflated water/feddans ratios, published in 1919 and 1920, turned out to be a great hydro-political advantage in the late 1920s. London could overnight, if it so wanted, almost double the irrigated area in Sudan without taking more of the Nile waters from Egypt, which Egyptians still considered as theirs. To the Sudanese government, it was still crucial that the Commission should make it clear that their figures on Sudan water needs were not to be taken as necessarily representing the maximum quantity that the Sudan might take without prejudicing Egyptian interests. Water requirements at national level are difficult to establish anywhere in the world, and in a large, undeveloped country such as Sudan was in the 1920s, the task was almost impossible to accomplish on scientific grounds. At the end of the 1930s, the British estimated Sudan’s requirements at about 6 billion m3, or about 10 per cent of Egypt’s requirements, while at the beginning of the 1920s these same requirements were considered to be less than 1 billion m3; today, the Sudanese government argues that the demands are about 35 billion m3 of water. Khartoum also argued that the Commission should underline that they had not considered the question of rights, but had looked at the position solely from the point of view of proposing practical arrangements that

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could meet the actual requirements of the two countries over the next few years. Khartoum feared that possible restrictions recommended by the Commission might bind the Sudan forever to limits of water withdrawals that were not acceptable. The British government agreed, and the report was carefully formulated in such a way that both parties could be satisfied for the present. The need to decide between conflicting interests did not arise and was postponed into the future. The conclusions and recommendations of the Nile Water Commission of 1925 were neither accepted nor rejected by the Egyptian government, but London thought that the Nile Water Commission was at least a step in the right direction in a period when most other things were going against them in Egypt. When Allenby left office in May 1925, he was succeeded by Lord Lloyd, and in April 1927 Adli resigned and succeeded by Abd al-Khaliq Tharwat or Sarwat Pasha, a Liberal Constitutionalist. He negotiated a draft treaty with the British foreign secretary, but failed to win approval of the Wafd, the nationalist party. THE AGREEMENT AND EMPIRE British concern over control of the Suez Canal and the military base made the stalemate with Egypt unacceptable. Great Britain needed an agreement with Egypt that could secure its long-term interests, therefore in the midst of Lord Lloyd’s authoritarian efforts to restrict the activities of opposition parties in Egypt, and as London dispatched the British fleet to Alexandria to back up its claim that the British inspector-general’s service as Sirdar of the Egyptian Army should be extended, High Commissioner Lord Lloyd sent a confidential letter to Chamberlain in which he proposed to offer Egypt a Nile settlement that could form the basis of a much wider future settlement between the two countries.19 Great Britain should confirm to Egypt that Egypt, as a result of its physical configuration, must rely to a greater extent than Sudan on irrigation works, and that it must therefore exercise a preponderating influence on the general development of works designed to store the waters of the Nile. Britain would give the Egyptian government ‘all possible assistance’. In view of the news that the British had helped to spread in Egypt – about the American firm in Addis Ababa and the plans of the Emperor to build a dam at Lake Tana – these assurances, they hoped, should be regarded as important by the Egyptians. Britain should protect Egypt against a potential dam on the Blue Nile. But Lloyds’ proposals were also subject to important Nile conditions: the Egyptian government should ‘avail themselves of the opportunities thereby offered’, i.e. work together with the British government in carrying out ‘without unreasonable delay’ a development programme on the Nile.20 The British intentions with the Nile Waters Agreement should not simply be seen as the legal institutionalization of a stroke of sudden Nile altruism,

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but rather as a diplomatic tactical move within a difficult and contentious political and hydro-political situation. In the literature, Lloyd’s role has in general been characterized as ‘champion of the rigid safeguarding of British interest in Egypt’ (Vatikiotis 1991: 284). In this case, however, he showed tactical flexibility to secure Imperial interests. Lloyd hoped that British goodwill regarding the water question would further what was already considered a positive development in Anglo–Egyptian relations and Egyptian Nile politics. Lloyd, in line with, this also reported optimistically to his foreign secretary that Egypt apparently had concrete plans for implementing the great schemes on the Upper White Nile, which London had worked on since the late 1890s. An Egyptian Public Works Commission – of which Lloyd’s man, the British water engineer A.D. Butcher, was a prominent member – had criticised the slowness of progress on the Upper Nile.21 The Foreign Office thought it therefore possible that the Egyptian government, before it decided to heighten the Aswan Dam, would start work on the Upper Nile.22 But London was once again disappointed. Egypt went for raising the Aswan Dam rather than developing the White Nile reservoirs in Sudan and Uganda. The Foreign Office noted that this was ‘wholly detrimental to British interests’; the reason, of course, being that this undermined the strategic asset of British control of the Nile upstream. In spite of this development, the foreign secretary in London, Chamberlain, supported Lloyd’s diplomatic efforts and wrote that he should ‘not relax’ in reaching agreement with Egypt on the water issue.23 I have above described the Sudanese and British Nile policy. What about the other upstream areas that Britain controlled? Since the great natural reservoirs of the White Nile were located in Uganda, and Uganda was the place where several of the planned dams were to be constructed, that country was very important to British Nile strategy. Lloyd and London took steps to bring the Ugandan government on line in relation to the 1929 Agreement. It was important that Uganda should not publicly protest against British-sponsored water plans upstream or demand compensation from Egypt for the planned dams there at that particular moment. London knew that the Colonial Office and its representatives in Kampala were sceptical towards a British Nile policy giving Egypt too much power over the river to the detriment of the East African territories. To London, however, such public criticism at the time was dangerous and would only help to infuriate the Egyptians. The long-term aim was said to bring about a ‘comprehensive agreement’ regarding the construction and operation of works that were not in Egyptian territory, and ‘for which the consent of both the Sudanese and Ugandan Governments will be necessary’.24 Lloyd knew that Egyptians feared what they saw as unjust attempts to make use of Britain’s geographical position,25 and one way to remove this fear was to play down these territories’ need for Nile waters.

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It was important to London that an agreement should be in place before more control works were carried out. Instead, the Egyptian government proposed that works could be started before any such agreement was concluded, since the latter arrangements would only increase what Egypt considered its ‘established rights’. Egypt wanted to raise the height of the Aswan Dam for a second time without having to discuss water allocation issues with Sudan, while Britain wanted Egypt to take part in the upstream schemes in some way or another, but only if this cooperation was based on an allocation agreement. London thus had to win over those in Khartoum who regarded such an allocation agreement as premature. For its part, the Ministry of Public Works in Egypt told Lloyd that it could not accept any abdication of the control hitherto appertaining to it in the valley as such, due to public disapproval. To the Ministry, a new Nile Board as proposed by Allenby and London was a bad idea, and the British government ministsers in Sudan were sceptical because they feared that it would mean they were being forced to consent to dams on the Nile in Sudan built for Egyptian purposes only.26 In the meantime, the Egyptian political scene changed. Tharwat resigned and Mustafa an-Nahhas (Nahas) Pasha, Zaghlul’s successor, became prime minister. After his resignation followed the brief interlude of Nahas Pasha’s government during which time the negotiations did not make much progress. The King dismissed him in June and dissolved parliament in July. In effect, the constitution was suspended, and Egypt was again governed by royal decree under a Liberal Constitutionalist premier, Muhammad Mahmud Pasha. Now an agreement on the Nile had become more likely. The negotiations took place against a background of serious water shortages in Egypt and conflicts over its use. The 1928 flow was very low. One example among thousands can be given: in April, Lloyd wrote to Chamberlain about the difficulties a British cotton-growing firm, the Aboukir Company, was facing due to water shortages.27 The shortage was particularly marked in the province of Behera, where the company had its lands. The company had explained that at the time of its complaint, there were six working days and 12 days of stoppage. On 30 March, which was the last of the six working days, the manager cabled that no water had arrived within 5 km of the tail of the canals. The land would have to go for at least 30 days without water.28 The result, it was thought, was that thousands of feddans would have to go out of cultivation. When the high commissioner was sitting down at Easter time to write a telegram to the foreign secretary in London about how water had reached no closer than 5 miles from the tail of the canals that gave life to the cotton seed in the province of Behera, the importance of breaking the deadlock on an agreement on Nile control was made evident both to London and to the new Egyptian government, whose legitimacy, as in all previous governments in Egypt, rested on its ability to bring enough waters to the fields.

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THE EXCHANGE OF NOTES REVISITED This Commission’s report suggested that Egypt should be guaranteed water sufficient to irrigate the maximum acreage cultivated up to that time, 5 million feddans. On that basis, quantitative estimates were derived that gave Egypt acquired rights to 48 billion m3. The other Nile valley countries were left out of the picture. The entire flow of the main Nile was reserved for Egypt during the dry season. Egypt was further guaranteed that no works that might prejudice its interests could be executed on the River or any of its tributaries upstream. After 15 July, Sudan was entitled to take water for the Gezira scheme up to certain maximum daily rates in order to fill the Sennar Reservoir, and to flood the area developed under basin irrigation downstream of Khartoum. Although this increase was a far cry from the maximum demands that could be heard in Sudan, it was a step in the right direction for Khartoum. The agreement broke what they called Egypt’s ‘monopolistic’ attitude to the Nile waters. London was to facilitate the establishment of waterworks upstream for the benefit of Egypt and the share of Sudan in the Blue Nile was dependent upon the amount of water Egypt could draw from other tributaries. The agreement has been characterized as being ‘solely for the benefit of Egypt’ (Collins 1996: 157). It was obviously, and from one point of view, strongly biased in favour of Egypt, but this assessment ignores the intricacy of Nile diplomacy and regional hydro-politics. To London, it was seen as a necessary stepping-stone towards a new general treaty with Egypt; it was far less Egypt-biased than the water policies of Salisbury, Cromer and Garstin. London succeeded in allocating more water to Sudan, and most importantly this was formally acknowledged by Egypt. An overlooked aspect of the agreement was that any extension of large-scale irrigation in either northern Sudan or Egypt was regarded as presupposing the exploitation, conservation or damming of upstream waters. By giving Sudan a legal role in Nile development, London also hoped to realize its role as the strategic-political key through which it was possible to hold Egypt – at Sudan’s mercy. After all, it was only two years earlier that a leading British water expert could still justifiably write that the Sudan branch’s main object was to collect hydrological information and study projects for the increase of the Egyptian water supply, while the inspector-general of irrigation in Sudan with his headquarters at Khartoum was responsible to the under-secretary of state at the Ministry of Public Works in Cairo (Tottenham 1927: 21). The exchange of notes was silent, however, on what has been called in the literature ‘the real issue’ – a plan for hydrological development of the entire Nile Basin. It has therefore been described as a testimony to ‘a lost opportunity, a tragedy’, and the 1929 Agreement’s ‘limited achievements’ is reflected in the scant subsequent enthusiasm for more ‘cement and stone for conservancy projects’ (Collins 1996: 158). At the time, however, it was

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unrealistic that the parties should agree to such a plan of reservoirs across the Basin – both on technological and economic grounds, and especially for political reasons. Britain wanted Egypt to implement projects upstream, while Egypt feared such projects under British actual control and instead prioritized the heightening of the Aswan Dam because it was within Egypt’s borders. The Egyptian nationalists were definitely not in the mood to join hands with their British foe to develop their life artery, although in the 1930s they grudgingly accepted the Jabal Auliyya Reservoir. The Tana Dam on the Blue Nile could not be part of an official agreement as it was placed on Ethiopian territory. ‘Black Thursday’ on Wall Street, just some months after the exchange of notes, made investors less enthusiastic about more cement and stone anywhere in the world. One long-term impact was that the Agreement established the Nile Basin and Nile waters de jure as being more than Egypt’s backyard. A clause declared that of the Egyptian government decided to construct any works on the river in Sudan, it had to agree beforehand with the local authorities on the measures to be taken for the safeguarding of local interests. Sir John Maffey, the new governor-general, immediately interpreted the agreement to the effect that no waterworks could be undertaken in Sudan without the Sudanese government’s consent and that such consent must be withheld unless the Sudanese government was satisfied that the work would be carried out efficiently and with smooth cooperation. Maffey thus thought that Sudan had been given an effective veto on any work, unless arrangements that in its opinion were adequate were made to safeguard local interests. The British in Khartoum, Cairo and London secretly discussed this interpretation. The Foreign Office argued that Maffey overestimated the strength of the Sudanese government, since there was nothing in the agreement that forced the Egyptian government to seek consent from the Sudanese government, although in most cases this would be a reasonable interpretation of ‘local authorities’. The government of Uganda protested and ‘expressed uneasiness’ as did the Colonial Office, because the agreement deprived Uganda of any right to exploit the Nile waters in the country (the same was the case for Tanzania and Kenya, and in some measures Sudan as well). The Foreign Office understood but accepted that the freedom of Uganda would be ‘restricted’.29 The government of Uganda hoped the agreement would lapse when the projects described in the Nile Commission’s report of 1925 had been implemented (the Jabal Auliya Dam and Nag Hammadi Barrage). They were resting their hope on an illusion that ‘any obligations which it entails on the Government of Uganda will thereby be abrogated’.30 They grudgingly accepted the limitations put on their development in the short run, since they thought it would be renegotiated in the near future.31 Nobody asked Ethiopia about its opinions at the time, and London insisted that the 1902 exchange of notes was legally binding and still in force.

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The Colonial Office in London was very sceptical about the agreement, because it hindered development in Uganda. The Foreign Office had given a verbal assurance to the Colonial Office that the Nile Agreement would only be effective until works contemplated in the report of the Nile Commission had been completed,32 knowing full well that the final sentence of Lord Lloyd’s letter of 7 May gave the most positive assurances that the Agreement would be observed at all times and under any circumstances. The Foreign Office could not completely go back on what it had told the Colonial Office, and its top Nile bureaucrat, John Murray, subsequently wrote a proposed text to the governor of Uganda to be sent from the Colonial Office, in which it was underlined that the agreement was meant to be temporary; ‘on the completion of the works contemplated in the Agreement, it will be possible to re-examine the situation as it then exists, and to take into account any requirements of Uganda and other British territories concerned which may then call for special consideration’.33 The Upper Nile region was still conceived by both parties as a barrel filled with water. Although Egypt was given the lion’s share of the Nile water, the allocation system formulated in the 1929 Agreement was basically in line with overall British strategy in the valley. It turned their planning conceptions of the past into a binding diplomatic agreement with important implications for the future: London prioritized the central riverine Sudan over the southern periphery, and its relationship with Egypt over those with Sudan, Uganda and Ethiopia. London hoped the exchange of notes on the allocation of the Nile waters would improve the general political atmosphere so that a comprehensive Anglo–Egyptian treaty could be reached, while Britain could continue to have strategic control over the River upstream. Egypt refused to accept any treaty agreement that did not include a broader solution of the Sudan question. Britain hoped that by guaranteeing the flow of the Nile, Egypt could accept the status quo in Sudan. Egypt saw that Sudan had become under the increased influence of London, while Cairo regarded Sudan as being under the Egyptian Crown. The Nile Waters Agreement, one of the most important basin agreements in the first half of the twentieth century, can therefore be seen, at least partly, as an expression of Britain’s weakened position as compared to the years before the Egyptian revolution, and partly as a reflection of the convergence of Egyptian perceptions of the Nile as an Egyptian river and British strategic thinking. The 1929 Agreement for cooperation on the Nile was an important step in a development that ended with the creation of Sudan as sovereign state in 1956. The countries of the White Nile and their potential developmental needs for Nile control works were sacrificed on the altar of Egypt and Sudan, the latter’s since Sudan’s use of Blue Nile water presupposed that Egypt got the entire White Nile. Historically, the borders of Egypt in the south had been defined by the cataracts of the Nubian Nile. During the time of the British Nile Empire, the really conflicting interests between irrigated

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agriculture in Sudan and Egypt were a context for and exploited by London in order to strengthen those political forces in Sudan that wanted an independent, sovereign Sudan, against those who wanted Sudan to be united with Egypt in a Nile valley state. The ideas and practice of state sovereignty were therefore strengthened by both the physical aspects of the river system and by how it had been managed and conceived during the British era in the valley. THE AGREEMENT, INTERNATIONAL WATER LAW AND STATE SOVEREIGNTY The much-hailed Nile Waters Agreement of 1929 should be seen as the outcome of a complex power play between a colonial power, Britain, and Egypt, a formally sovereign state but restricted in a particular way because explicitly its autonomy did not cover foreign policy and Nile-related themes. The Agreement’s content was the product of a complex development where geopolitics, regional political issues and a particular river basin’s hydrology and potentials for river management and control intervened. It was made politically possible in 1929 due to particular power configurations, and the final Agreement bore the stamp of the River itself and the hydrological regime of the two major tributaries. The water system in the upstream White Nile countries (much local rainfall in many places and an undeveloped irrigation sector) made it politically acceptable, although problematic. What has been described as the general historical tension between conceptions of state sovereignty and the development of legal arrangements for cooperation over transboundary water resources was not irrelevant here, but led to a very special sequel. The accord between the two states sharing an international river was not based on a development whereby past positions grounded in traditional Westphalian notions of unrestricted sovereignty gave way to positions that recognized the need to limit the sovereign discretion of states on the basis of sovereign equality. On the contrary, the 1929 Agreement was a water agreement that, long before the 1997 UN Watercourses Convention, accepted and recognized the requirements of transboundary cooperation over international water resources. The agreement made Egypt sovereign over the whole river flow of the White Nile system, however, while at the same time it also established Sudan as a potential sovereign actor, especially in relation to rights of utilization of the Blue Nile. This bilateral cooperative treaty was not accompanied by or did not lead to the establishment of a ‘community of interests’ approach normally achieved by means of some sort of joint institutional machinery. A form of cooperative arrangement seeking to manage a river basin as an integrated economic and ecological unit or to achieve the sharing of benefits deriving from shared waters was not agreed upon. Such approaches were opposed

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to by one of the parties to the Agreement (Egypt), and Britain was not in a position to impose it. The Agreement did not lead to supranational regimes of water resources management where policymaking authority would be lodged in basin-wide institutions. Water remains, it is said, the sovereignty issue par excellence in the sense that cooperation over common goods is said to undermine state sovereignty. But that was not the case here. Sovereignty was developed, linked to and encouraged by demands and disagreements about the use of a transboundary river. The British used potential disagreements between the Sudanese elite (also the political elite) and Egypt over the Nile waters as a means to establish Sudan as a country independent of Egypt. Here, therefore, the historical processes contradicted general theories about the impact of transboundary river management on sovereignty, and how they constitute a ‘threat’ to state sovereignty. As a move to weaken Egypt’s monopolistic attitude to the waters of the entire Nile, encouraged by early British basin-wide, multipurpose river-basin planning when London was mostly or only concerned with the Nile and its potential utilities in Egypt, the issue of Sudan’s demand for more water – also reflected in the Nile Waters Agreement of 1929 and the accompanying text of 1920 report – was a way to construct sovereignty as a political issue in Sudan. The Nile and the White Nile was for Egypt. Sudan could use some of the winter flows of the Blue Nile because Egypt did not need this water and was not in a position to store it at the time due to the silt-laden floods of the river. The history of the British Nile Empire presents an empirical example that falsifies certain general theories about the evolution of water law and the relationship between state sovereignty and international river basins. London, as the ‘command centre’, placed clear limits on the authority of colonial governments to act within their borders. London’s concern was not the ‘human right’ to water, or the optimal, equitable planning of water uses, but optimal, rational water planning as long as it was in line with British Imperial strategies in which Nile control was but one, albeit important, method by which it furthered its interests. The actual management of transnational water resources has in general more to do with international politics and power relations than with such technical issues as water use practices, assessment of water needs or international water law. The issue is not only about interstate relations or general social relations, but also about nature and the physical characteristics of the individual river basin, a fact that is often overlooked in discussions about general legal principles and evolutions of international water law. The history of hydro-politics in the Nile Basin shows this clearly due to the richness of its extremely fluid history. The tension between the two principles of protecting ‘historic rights’ and providing for development equity is evident. It is further complicated when the historical contexts for development and rights are assessed.

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NOTES 1 The history of the British Nile Empire and British Nile policies is described in much greater detail in Tvedt, 2004. 2 Lord Lloyd to Muhammad Mahmud Pasha, 7 May 1929, in Sudan Pamphlets 89. 3 See especially Garstin 1899 (enclosed in a despatch from His Majesty’s agent and consul-general at Cairo, and presented to both Houses of Parliament, June 1899). A slightly different version was published as ‘Note on the Soudan’ (1899, Cairo). See also Garstin 1901, 1904; Dupuis 1904; and Cromer 1908. 4 The Blue Nile’s annual inundation in Khartoum was on average estimated as 54 billion m3 per year; at Aswan it is 48 billion m3 per year. 5 Foreign Office Memorandum, Sperling, ‘Resumption of negotiations for the construction of a dam on Lake Tsana’, 8 November 1922, FO 371/7151. 6 Foreign Office Memorandum, Murray, 4 January 1923, ‘Memorandum on the political situation in Egypt’, FO 371/8972. 7 Kewin-Boyd to Allenby, 14 March 1920, FO 371/4984. 8 Allenby to Austin Chamberlain,15 December 1924, FO 371/10046. 9 Quoted in Kurita 1989: 26. 10 Quoted in Sir John Maffey to Sir P. Loraine, 15 August 1930, FO 371/4650. 11 ‘The Crisis in Egypt. Mr MacDonald on the ultimatum. A mandate for the Sudan’, The Times, 29 November 1924. 12 Ziwar Pasha to Allenby, 26 January 1925. Texts of notes exchanged between Lord Allenby and the Egyptian Government on 26 January 1925 regarding the control of the Nile water, FO 371/10882. 13 Allenby to Ziwar Pasha, 26 January 1925 (as put together in the Foreign Office from Cairo telegrams), FO 371/10882. 14 Note from Lord Allenby to Ziwar Pasha, 26 January 1925, in Sudan Pamphlets, p. 89. 15 MacGregor found the Egyptian member difficult to cooperate with. In order to come up with an acceptable report, he informed Allenby and the British government that he had had what he himself called clandestine meetings with the British water-planners Hurst and Butcher, who were employed by the Egyptian Government (Allenby to Chamberlain, 25 May 1925, Enclosure 3 in No. 1 by Mr. R.M. MacGregor). 16 Nile Commission, 1925: 30. 17 Ibid: 28. 18 MacDonald’s Nile Control provided, during the period when the Sennar Reservoir would be in use, a water allowance at the canal head of 15 m3 per feddan per day, including 33 m3 for losses between the canal head and the 5,000 feddan blocks. MacGregor had worked out, on the basis of figures obtained from research at Hag Abdulla and Wad-el-Nau, that a water allowance at a canal head of 10 m3, including 2 m3 for losses, would suffice. Thus, only two-thirds of the water provided would be actually required, and an extension of 150,000 feddans became possible on the assumption that the reservoir drew upon the Nile from 18 January to 15 April. In terms of volume this saving amounted to 5 m3 per feddan per day on 300,000 feddans for 87 days, i.e. 130.5 million m3. Moreover, Nile Control argued that the date from which the canal would have to be supplied from storage was 18 January and the waters could be returned to the river at the end of March. MacGregor discovered, however,

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19 20 21

22 23 24 25 26

27 28 29 30 31 32 33

621

that the former date should be moved back to nearer the beginning of January, which also made it possible to bring the latter date forward to the beginning of March. Therefore it was assumed that the reservoir would be called upon to serve the present area for a period of 60 days instead of 87, as contemplated in Nile Control. This saving would amount to 15 m3 per feddan per day on 300,000 feddans for 27 days, i.e. 125 million m3. Assuming the period to be 65 days, the volume available would permit an extension of 190,000 feddans. Lord Lloyd to Sarwat Pasha, 16 February 1928, Enclosure 1 in No. 1, Lloyd to Chamberlain, 23 February 1928, FO 371/13138. Draft of a note to be addressed by His Majesty’s high commissioner to the president of the Council of Ministers, Enclosure 3 in No. 1, Lloyd to Chamberlain, 23 February 1928, FO 371/13138. He wrote a note about the Egyptian government’s consideration of the report of the Parliamentary Finance Commission on the budget of the Irrigation Department for the current financial year. Under the heading ‘Sudan’, an estimate of £E 1,100,000, of which £E 130,000 was to be spent in 1928, had been included for the ‘modification and improvement of the flow of the Nile in the Sudd region’, by means of large dredgers to be purchased abroad. Lloyd to Chamberlain, 12 May 1928, FO 13138. Foreign Office minute, Murray, 1 August 1928, FO 371/13138. Foreign Office to Lloyd, draft, 15 March 1928, FO 371/13138. Draft Note, Lloyd to the Egyptian Minister for Foreign Affairs, n.d. (July 1928, my comment), FO 371/13138. Lloyd to Chamberlain, 14 July 1928, FO 317/13138. Lloyd to Chamberlain, 20 February 1928, FO 317/13137. The Nile Board that should be responsible for the entire Nile should be made up of two representatives of the Egyptian government and two representatives chosen by the British government (Allenby and the governor-general of Sudan, Maffey, agreed that they should represent the Sudan government, and the salaries should be paid by Khartoum). Lloyd to Chamberlain, 14 April 1928, FO 371/13138. Copy of letter dated 12 April 1928 from the secretary of the Aboukir Company, Ltd., to his Excellency the Minister of Public Works, FO 371/13138. Draft letter, Foreign Office to Sir W. F. Gowers, November 1929, FO 371/13857. Parkinson, Colonial Office to the under-secretary of state, Foreign Office, 2 November 1929, FO 371/13857. They had just organized fisheries surveys in these lakes for the first time (see Worthington, 1929). Parkinson, Colonial Office to C. J. Norton, Foreign Office, 14 November 1929, FO 371/13857. Murray to the Under-Secretary of State, Colonial Office, 2 December 1929 FO 371/13857.

REFERENCES Anon., ‘The Crisis in Egypt. Mr MacDonald on the ultimatum. A mandate for the Sudan’, The Times, 29 November 1924.

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Crowfort, G.M., ‘The Handspinning of Cotton’, Sudan Notes and Records, 7 (1924). Collins, R.O., The Waters of the Nile. Hydropolitics and the Jonglei Canal 1900– 1988 (Princeton, NJ: Markus Weiner Publishers, 1996). Cromer, Earl of, Modern Egypt (Evelyn Baring), 2 vols (London: Macmillan, 1908). Dupuis, C.E., Report upon Lake Tana and the Rivers of the Eastern Soudan, 1904, attached to Garstin, 1904. Garstin, W., 1899. Report on the Soudan, HMSO Parliamentary Accounts and Papers, no. 112 (London, 1899), pp. 925–51. ———, Report upon the Administration of the Public Works Department for l899–l905, 7 Vols (Cairo, 1900) with reports by the officers in charge of the several branches of the Administration, 7 vols., 1900–6, Cairo. ———, ‘Despatch from His Majesty’s Agent and Consul-General Cairo Enclosing a Report as to Irrigation Projects on the Upper Nile, by William Garstin’, in Blue Book, No. 2 (London: Foreign Office, 1901). ———, ‘Report as to Irrigation Projects on the Upper Nile’, in Blue Book No. 2 (Foreign Office, Cairo, 1901), originally in a despatch from His Majesty’s Agent and Consul-General, Cairo. ———, Report upon the Basin of the Upper Nile with Proposals for the Improvement of that River (Cairo: Ministry of Public Works, 1904). Hosni, Sayed Muhamed, ‘Legal Problems of the Dvelopment of the River Nile’, Ph.D. thesis, (University Microfilms, Inc., Ann Arbor, MI, 1975). Kurita, Y., ‘The Concept of Nationalism in the White Flag League Movement’, in Mahasin Abdelgadir Hag al Safi, The Nationalist Movement in the Sudan, Sudan Library Series (15), Nationalist Movement (Khartoum: Institute of African and Asian Studies, University of Khartoum, 1989). MacDonald, M., Nile Control. A statement of the necessity for further control of the Nile to complete the development of Egypt and develop a certain area in the Sudan, with particulars of the physical conditions to be considered and a programme of the engineering works involved, 2 vols. (Cairo, Ministry of Public Works, 1920). Tottenham, P.M., Upper White Nile Mission. Interim Report 1923 (Cairo: Government Press, 1926). Hurst, H.E. and Watt, D.A.F., The measurement of the discharge of the Nile through the sluices of the Aswan dam. Final conclusions and tables of results, Ministry of Public Works, Egypt, Physical Department. Physical Department Paper, No. 24 (Cairo: Government Press, 1928). Tvedt, Terje, The River Nile in the Age of the British. Political Ecology and the Quest for Economic Development (London; New York, NY: I.B.Tauris, 2004). Vatikiotis, P.J., The History of Modern Egypt, from Muhammad Ali to Mubarak (Baltimore, MD: Johns Hopkins University Press, 1991).

28

Constructing Dams: Between Sovereignty of States and Rules of International Water Law

Mohamed Sameh Amr INTRODUCTION The utilization of international rivers as a natural resource has always been linked to the concept of national sovereignty. In fact, in all legal disputes over the use of international rivers, each side has conventionally used this principle of ‘national sovereignty’ to support conflicting claims. This issue must be considered in light of the fact that more than 260 river basins are shared by two or more states; it should also be noted that the World Water Council estimates the number of international rivers as close to 300 (Cosgrove & Rijsberman 2000: 43). These international rivers are not static and do not stay within the political boundaries of any riparian. Therefore, the principle of ‘national sovereignty’ that in its classical sense means that a state within its own boundaries has absolute right to govern (Black’s Law Dictionary, 6th edition 1990: 1396) must be reconsidered when we deal with the issue of international rivers. This chapter attempts to answer the question of whether states have a free hand to construct dams based on a claim of national sovereignty as an established rule of international law, or whether such sovereignty is limited or qualified by the rules of international law. Drawing a delicate balance between national sovereignty and the management of the basins shared by two or more states is very vital; constructing dams involves more complex planning and has more farreaching effects than other water infrastructure projects. Hence, this chapter will address several questions. First, it shall examine whether states enjoy full liberty to construct dams over parts of international rivers, as a natural resource passing through their territories based on a claim of their full sovereignty, or whether state sovereignty is otherwise limited by principles of international law. The second part will highlight the normative rules and mechanisms of international law for ensuring that sovereign states recognize the need for working with others beyond national territories. The answer of the above-mentioned issues must be considered in the light of understanding the very nature of transboundary watercourses,

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which contradicts with the rigid interpretation of permanent sovereignty over such a natural source and which, as illustrated in this study, cannot be subject of mere application of certain resolutions adopted by the United Nations (UN) General Assembly (UNGA) on ‘Permanent Sovereignty over Natural Resources’; such notable pronouncements of the UNGA include Resolution 626 (VII) of 21 December 1952 and Resolution 3281 (XXIX) of 12 December 1974. CONSTRUCTING DAMS: PRELIMINARY REMARKS Dams are built for various purposes. They can be built to generate hydroelectric power, store and divert water for irrigation, industrial consumption, water supply and flood control. Dams take two main forms: first, the storage dams that have a large reservoir behind them to impound water for storage and regulation of rivers; and second, run-of-river dams, which have only a small reservoir and their purpose is limited to raising the level of water upstream to generate electricity (Happold 2005: 579, Agnew & Woodhouse 2011: 57–8). In the world of today, there are over 45,000 large dams in over 140 countries, a significant number of them constructed over international watercourses. The construction of large dams peaked in the 1970s; since then, some 160–320 large dams have come into operation each year. For instance, in the 1960s, Brazil decided to construct a dam of enormous proportions on the Parana´ River, which is shared between Brazil, Paraguay and Argentina. China also decided to construct eight dams on the Mekong River. The same applies to Turkey, which proceeded with the construction of a series of dams on the Euphrates and Tigris Rivers (Farrajota 2005: 286). In the 1990s, an estimated $32 billion–$46 billion was spent annually on large dams, four-fifths of it in developing states (The Report of the World Commission on Dams, Earthscan 2000: 10–11). The reservoirs across many parts of the world are estimated to have a combined storage capacity equivalent to five times the volume of water in all rivers in the world, and extend over 400,000 km2 (McCully 1996: 7). The construction of dams for any purpose usually alters or diverts river flows, and could adversely affect the existing water rights of riparian states and hence result in appreciable harm either in sense of quantity or quality or both (Salman 2005: 81). The subject concerns both upstream and downstream riparian states. Upstream states may find part of their territory flooded by a dam’s reservoir, with the consequent displacement of the inhabitants of such area. Dams may also cause damage to or destruction of valuable fisheries and restrict navigation and access to the sea. The abstraction of water from an international watercourse can also cause serious harm to downstream states, depriving them of water which they had previously put to any of a number of uses. Even where there is

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no abstraction of water, downstream states may suffer from environmental damages, and rivers may be rendered impossible to navigate (Happold 2005: 579–80, Scudder 2005: 211–41, Agnew & Woodhouse 2011: 168–77). In contemporary contexts, dams have become major sources of tension at domestic and international levels. Due to the construction of dams and barrages, the international community has witnessed several incidences of disputes relating to the rights and obligations of riparian states over shared rivers. Mostly, the disputes have arisen due to the fact that building dams results in less water reaching lower riparian states verses maximizing the water share of the state that constructs the dam. It is against the background of such developments that the World Commission on Dams (WCD), in its report issued in 2000, issued recommendations concerning states’ conduct with regard to international watercourses, including constructing of dams on international watercourses. MAJOR THEORIES OF STATES’ SOVEREIGNTY OVER WATERCOURSES Once a state announces plans to construct a dam over an international watercourse, the first question that this development engenders is whether the state has a right to engage in such schemes under international law. The states carrying out the construction of dams or barrages and their unilateral act of diverting the water of rivers, when such act is challenged by other co-riparian states, is justified – in most cases – based on their conceptions of sovereignty over watercourses, thus invoking the principle of absolute territorial sovereignty. This argument is nearly consistently challenged by other riparian states potentially affected by projects undertaken in other riparian states, especially when the activities are pursued unilaterally. The following sections shall focus on a brief analysis of the major theories depicting the rights of utilization of states sharing an international watercourse. Absolute territorial sovereignty (‘Harmon doctrine’) According to this theory, a riparian state has complete control over all waters lying within its territory, and may utilize the waters without regard to its effect on other co-riparian states. This theory was first invoked into international law in 1895 by the then US Attorney General Judson Harmon in connection with a controversy with Mexico concerning the use of the water of the Rio Grande by the United States (Yu 1991: 990, Johnson 1967: 184, LeMarquand 1977: 12, McCaffrey 1996: 725). It was developed in response to a claim raised by Mexico that the US act was illegal. Harmon stated that: ‘the rules, principles and precedents of international law

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impose no liability, or obligations on the United States’. This theory was upheld by the International Waterway Commission in its report in 1906; it was embraced by an equal number of American and Canadian members where the Commission issued a joint report on the application of the Minnesota Canal and Power Company of Duluth, Minnesota, for permission to divert certain waters in the State of Minnesota from the boundary waters between the United States and Canada. In 1955, the US objected to the application of this theory by Canada when it intended to divert the Columbia River waters (Mart 1956: 27). The US rejected the theory of absolute sovereignty and embraced limited sovereignty (Johnson 1967: 95). Nowadays, the Harmon doctrine does not receive the support of the majority of international lawyers, who find that it vests unlimited rights to one riparian state without regard to the interest of other states. The doctrine has been held inconsistent with international legal principles, hindering international cooperation in the exploitation of natural resources; it also infringes upon the sovereignty of lower riparian states, since international law, regardless of the nature of asserted claims, is premised upon the equality of states (Bains 1960–1: 370). Absolute territorial integrity (‘natural water flow’) The absolute territorial integrity theory constitutes the opposite extreme of the Harmon doctrine. According to this theory, a state is entitled to expect that the same volume of water, uninterrupted in quantity and unimpaired in quality, flows into its territory. It demands the maintenance of the natural regime of the river, and consequently no interruption, diminution or augmentation of the flow caused by the use of waters located in a riparian state is permitted. This conception recognizes that the upper-stream state has the right to exploit the waters of a river so long as such utilization does not affect the interests of the lower riparian countries. It also holds, however, that downstream states have the right of veto against any upstream patterns of water utilization that are likely to disturb the natural flow (Yu 1991: 991). Community of interest (‘optimum utilization’) According to this theory, a state’s sovereignty is limited by similar rights vested in other states sharing the same river basin (Farnham 1904). It emphasizes the maximum utilization and optimum economic development of an entire river basin. It reinstates the community of interest approach and attributes a positive duty to render active cooperation in the rational development and utilization of the shared water resources (Garg: 20). This theory considers the waters of an international drainage basin to be managed as a unit without regard to national territorial boundaries. Hence, riparian states are obliged to manage and develop the drainage basin jointly, and share the benefits derived therefrom.

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This theory was not widely applied, especially with regard to the nonnavigational uses of international watercourses, since it considers only the economic aspect of development and maximum utilization of resources, without considering other aspects such as protecting the environment or even the different levels of development of the states dependent on those resources (Islam: 334). In the context of non-navigational uses of international watercourses, the principle was employed by the Permanent Court of International Justice (PCIJ) in the Territorial Competence of the River Oder Commission case. The PCIJ concluded ‘the community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others’ (PCIJ, Series A, 1929: 27). The arbitral tribunal in the Lake Lanoux case dismissed this theory. It was argued by Spain that France had not based the development scheme for the waters of Lake Lanoux on a foundation of absolute equality and had imposed the scheme unilaterally without associating Spain with it in a common search for an acceptable solution. The tribunal rejected Spain’s argument and concluded that: ‘the upstream State [...] is not obliged to associate the downstream State in the elaboration of its schemes’ (International Law Reports 1957: 139–40). Limited territorial sovereignty and integrity This theory propounds that states have a sovereign right to use a water resource in international watercourses lying within their own territory to the extent that such use does not cause any injury or harm to other states (Winiarski 1933: 81, Berber 1959: 25, Caponera 1992: 213). Accordingly, if the use of water resources in international watercourses by a state affects the interest of the co-riparian state, then the sovereign right of the state to the use of water in the international watercourses is limited, or restricted. This theory is based on the rule of sic utere tuo ut alienum non laedas, which leads one to note that sovereignty over shared water is relative and qualified. In fact, this theory has received wide support by international lawyers and is considered a general principle of international law (Berber 1959: 25, Bourne 1965: 203, Garreston A. et al. 1967: 26–7). Brierly concluded that: ‘each State has in principle an equal right to make the maximum use of the water within its territory, but in exercising this right must respect the corresponding rights of other states’ (Brierly 1963: 231). This theory was supported by Article II of the Salzburg Resolution on the use of International Non-Maritime Waters, adopted by the Institute of International Law in 1961, and also was upheld by the PCIJ in the Diversion of Water from the Meuse case. The Court, in replying to the challenge raised by the Netherlands regarding the implemented projects

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undertaken by Belgium to feed the Hasselt Canal with water from the Meuse, held that: ‘[A]s regards such canals, each of the two States is at liberty, in its own territory, to modify them, to enlarge them, to transform them, to fill them and even to increase the volume of water in them from new sources, provided that the diversion of water at the treaty feeder and the volume of water to be discharged there-from to maintain the normal level and flow [...] is not affected’ (PCIJ, Series AB, 1937: 26). EVALUATION Based on the fact that absolute notions of sovereignty have long been abandoned, one may conclude that sovereignty of any state over international watercourses is limited and qualified based on the concept of unity of shared freshwater as a ‘shared natural resources’. Riparian entitlements under international water law rely on the balancing of competing interests of watercourse states in shared rivers. Each state’s right to use shared waters in its territory is generally limited by the duty not to cause significant harm to another state. Indeed, every state is entitled only to a reasonable and equitable share in the beneficial uses of a transboundary water resource. International water law has established various procedural rules, requiring riparian states to consider each other’s interests and to provide for information and consultation regarding potential transboundary impacts. The limitation of states’ sovereignty in respect of shared watercourses was addressed by the International Court of Justice (ICJ) in the Gobcˇ´ıkovoNagymaros case in 1997. The Court stated that any differences as to the uses of shared watercourses must be addressed cooperatively. Largely borrowing lines from the PCIJ’s decisions in the River Oder case, the ICJ rejected the idea that any state could ‘unilaterally assume control of a shared resources’ and pointed to the concept of ‘community of interest’ as the conceptual underpinning for cooperative approaches in nonnavigational uses of shared fresh waters (ICJ Report 1997, paragraph 85). In light of the above considerations, it can be concluded that today any claim of unlimited sovereignty by states is qualified by the application of the principles of sovereign equality, equitable entitlements and the right of others to protection from significant harm. This has been reflected in different procedural and sustentative rules of international law, which shall be considered further in this chapter. PROCEDURAL LIMITS OVER THE RIGHT OF STATES TO CONSTRUCT DAMS The procedural mechanisms stated in numerous international instruments, which are based on the essential obligation of riparian states to cooperate

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with each other, limits any claim that a riparian state has an absolute sovereignty over a shared river. The general obligation of states to cooperate and the procedural rules it comprises play a critical role in the implementation of the substantive principles of equitable and reasonable utilization and the obligation not to cause significant transboundary harm (Salman 2005: 64). It has to be noted that such procedural rules, which impose limits on the sovereignty of states to construct dams over shared rivers passing through their territories, are designated to be applied before any harm has occurred and planned measures have been carried out (Okowa 1997: 275). The aim of these rules is to ensure participation of all riparian states in the decision-making process concerning planned measures or new uses of the shared river, thus enabling the states likely to be affected to express their concerns, to assess the effects of proposed activities in the territory of the other states, and to take adequate measures (Okowa 1997: 277, Farrajota 2005: 290). The obligation of states to cooperate, as one of the recognized principles of international law, has been founded in many international instruments, including but not limited to the UN Charter (Article 2, paragraphs 3 and 4 and Article 33) as well as the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. The latter instrument emphasized several issues that are relevant to the use of riparian states of the transboundary international rivers, such as: i) every state has the duty to fulfil in good faith its obligations under the generally-recognized principles and rules of international law; and ii) every very state has the duty to fulfil in good faith its obligations under international agreements valid under the generally-recognized principles and rules of international law. The principle of cooperation was reflected in numerous international watercourse treaties and conventions (Farrajota 2005: 283). For instance, Article 8/1 of the UN Convention 1997, which deals with the ‘general obligation to cooperate’, has laid down general basis for such cooperation such as sovereign equality, territorial integrity, mutual benefit and good faith. This general statement has been fleshed out in the same Convention – as in many others – in different ways, including the obligation to exchange information, notify other riparian states of planned measures, the establishment of joint mechanisms, the duty to conduct environmental impact assessments, the obligation to enter into consultations, and the obligation to negotiate in good faith (Salman 2005: 63). In addition Article 8/2 of the UN Convention 1997 suggests, as a form of cooperation, the establishment of joint mechanism or commissions to facilitate cooperation on relevant measures and procedures. Similarly, Articles 2/6 and 9/1 of the 1992 Helsinki Convention set forth a general obligation to cooperate on the basis of equality and reciprocity.

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Exchange of data and information The obligation to exchange data and information as one of the procedural rules is intended to regulate the relations between riparian states on a regular basis. This obligation was founded as customary rule that turned to be included in most, if not all, international treaties dealing with international rivers. For instance, on a regional level, it is clearly illustrated in Articles 6 and 13 of the 1992 Helsinki Convention that there is an obligation to exchange data and information regularly. On a bilateral level, this obligation was also included in the Annex II of the 1994 Treaty of Peace between Israel and Jordon. The ideal approach here would have been to start from international law, and then proceed to regional and national case studies. The duty to exchange data and information has been set out the UN Convention 1997 through Articles 9 and 11. The latter Article lays down a general obligation on each riparian state to provide other riparian states with information concerning the possible effects upon the condition of the international watercourse of measures they plan to undertake, and to consult with them in this regard. This rule is complemented by Article 12 and subsequent Articles of the same convention, which requires not only the exchange of information on the possible significant adverse effects, but also on the positive effect of the planned works, in order to prevent problems arising from unilateral assessment of the effects of any project. In light of this rule, one may note that such obligation limits the sovereignty of any riparian state to act in unilateral manner. Despite that, this obligation has an important role in normal circumstances; it has a special value in cases where dam construction has already commenced over a shared river course. Based on the data and information furnished by the state that constructs a dam, whether during the construction process or thereafter, other riparian states may assess the general conditions of the basin environment, the measurements of water flow, extractions, release from reservoir, etc. The availability of such data and information undoubtedly helps in eliminating or mitigating any harm that might be caused by the construction and operation of such water infrastructure. Notification and consultation The obligation to notify and consult, as one of the procedural rules, is intended to regulate the relations between riparian states on any given occasion. Therefore, if a state plans to carry out new activities on a shared river, such as constructing a dam, it has to notify other riparian states of such planned measures. This notification has to be effected before the commencement of the works or activity by any riparian state, which also has to provide the relevant technical data and information, including the results of any environmental impact assessment and risks involved, as well as the potential harm to the states likely to be affected. The purpose of the

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notification is to allow the potentially affected states to make their own evaluation of the situation and to initiate a process of consultations during which the planning state may take into account the interests of the potentially affected states (Craik 2008: 141). This obligation was recognized by both the Institute of International Law in 1961 (the Salzburg Resolution) and by the International Law Association in 1966 (in the Helsinki Rules). In addition, Article 10 of the 1992 Helsinki Convention sets the obligation of regular consultation and exchange of data and information. This obligation was also reflected in the World Bank policy adopted in 1994 (Operational Policy 7.50). This obligation was debated at length during the discussions held by the International Law Commission in light of the widespread practice of states. These discussions resulted in embodying Articles 11–19 of the UN Convention 1997. These Articles set the timeframe for such notification, and for reply by the notified riparian states, and another period in which to request additional data and information that can be extended for a period of 18 months. It is important to note that the provisions not only limit the sovereignty of the state that intends to carry out activities on a shared river, but it also provides that the notifying state is prohibited from implementing or permitting the implementation of the planed measures. The obligation to notify was adopted by Operational Policy 7.50 of the World Bank, which requires that states seeking funding for dam construction projects notify both up- and downstream riparian states of their intentions. The obligation to notify should not be considered as an obligation per se, but it has to be considered as a part of another obligation to enter into consultation with the concerned states. The duty of notifying riparian states about planned measures with possible significant adverse effects is complemented by the duty to enter into consultations, if necessary, to negotiate any planned measure to be taken by a riparian state. Consultation is a procedural mechanism used to prevent disputes, whereby states, based on information exchanged, discuss pending issues. This procedure permits the affected states to manifest their position and contribute to the decisionmaking process concerning planned uses of the waters of a shared river. This was confirmed by the arbitral tribunal in the Lake Lanoux case, where was it concluded that ‘according to the rules of good faith, the upstream state is under obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interest, and to show that in this regard it is genuinely concerned to reconcile the interest of the other riparian state with it owns’ (AJIL 1959: vol. 53). The ICJ has also addressed the issue of notification as a procedural requirement in the Pulp Mills on the River Uruguay case in 2010. The Court found that Uruguay had breached its procedural obligations – set out in the applicable 1975 Uruguay River Statute – to comply with a procedure providing for notification of planned works likely to affect the quality of the river’s waters (ICJ Reports 2010: paragraph 282).

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Plenty of state practices have shown that countries sharing transboundary rivers have entered into consultations that eventually led to agreements. Some concluded that consultation would be required before activities are to be undertaken that could be expected to cause a change in the watercourse appreciably damaging interests of other states (Kirgis 1983: 86). The UN Watercourses Convention of 1997 provides for consultations in number of different articles. For instance, Article 6/2 provides that in application of the principle of equitable and reasonable utilization, watercourse states concerned shall, when the need arises, enter into consultation in a spirit of cooperation. Article 24 also provides for the duty to enter into consultations at the request of any watercourse state concerning the management of the international watercourse. In addition, Article 7/2 provides for consultation when significant harm has occurred so that the state causing the harm may take ‘all appropriate measures’ to eliminate or mitigate such harm. Finally, Article 21/3 provides that the parties have to consult with a view to arriving at mutually agreeable measures and methods to prevent, reduce and control the pollution of an international watercourse. In light of the points stated above, if any riparian state objects to a new planned project (such as constructing a dam) proposed by another riparian state, arguing that such a project will lead to inequitable and unreasonable use or shall cause significant harm, then the concerned states have an obligation to enter into consultation and negotiate with a view to reaching an agreement within reasonable time. The consultation must be conducted in good faith, effectively and constructively, with a view to arriving at an agreement. Applying the same principle of ‘good faith’ must also entail suspending the implementation of a project until the parties reach such agreement. In this context, it has been held that where the parties fail to reach an agreement, they may resort to third party dispute resolution in accordance with Article 33 of the UN Charter (Farrajota 2005: 32). Conducting environmental impact assessments It has been noted that the obligation to conduct environmental impact assessments for the projects to be carried out over shared rivers is linked to the substantive principles of equitable utilization in the use, development and protection of watercourses, and the exercise of due diligence in preventing any harm thereto (Tanzi & Arcari 2001: 205, Gillespie 2008: 221). This procedure means that any potentially affected state, once notified, may participate in the procedures itself, or enter into consultations or negotiations with a view to reaching a satisfactory resolution of the situation. Some authorities have rightly argued that this obligation exists under general international law in cases of transboundary risk to the environment of other states (Birnie & Boyle 2002: 132, ICJ Reports 1995: 288). Gunter Handl argued that a state’s obligation to

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prevent environmental harm to areas beyond its own territory requires it to investigate the potential impacts of its activities, while the duty to cooperate requires a source state to give notice of any impacts to an affected state (Handle 1980: 223). In the context of this study, the same obligation of preventing environmental harm and notification applies where a riparian state plans to carry out projects – including constructing dams – over any shared river. This obligation has been reflected in numerous international legal instruments and treaties which provide that when a state notifies other states of planned activities that may entail a risk of causing transboundary harm, it has to carry out environmental impact assessments. Notable among them are the Kuwait Convention for Cooperation on the Protection of the Marine Environment from Pollution 1978, the UN Law of the Sea Convention 1982, the Convention on Biological Diversity 1992, the UN Framework Convention on Climate Change 1992, and the UN Economic Commission for Europe Convention on the Protection and Use of Transboundary Watercourses and Lakes 1992. Finally, the UN Watercourses Convention of 1997 confirmed this obligation through Article 12, where it provides that notification has to be accompanied by technical data and information including the results of any environmental impact assessment. This principle has was employed by the ICJ in the Gobcˇ´kovo-Nagymaros ı case 1997, where the court indicated that the parties were under a joint obligation to consider the environmental impacts of the project as currently proposed and were required to assess those impacts in light of current environmental standards. The Court concluded by requesting the parties ‘look afresh at the effects on the environment of the operation of the Gabcikovo power plant’ (ICJ Report 1997, paragraph 140, Preiss 1999: 307 ff., Vin ˜ uales 2008–9: 236). SUBSTANTIVE LIMITS OVER THE RIGHT OF STATES TO CONSTRUCT DAMS Substantive limits over the right of states to construct dams are governed by two main principles: first, the principle of equitable and reasonable utilization; and second, the principle of no-harm. Both principles will be further illustrated in details below. Principle of ‘equitable and reasonable utilization’ According to this principle, a riparian state is entitled to a reasonable and equitable share of water. The aim of this principle is to weigh and balance the benefits and injuries to riparian states in the light of all the relevant factors in each case (Yu 1991: 991). The application of this principle depends on the facts and circumstances of each individual case, which go

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beyond the legal field and require policy decisions and evaluation by technical experts (Farrajota 2005: 290). This principle can be viewed as an integration and compromise between the doctrine of absolute sovereignty and the doctrine of territorial integrity (Clemons 2009: 512). This principle was adopted as an international rule by the Helsinki Rules of 1966 and followed up by many international treaties, including Articles 5 and 6 of the UN Watercourses Convention of 1997. The two Articles address the idea of participation in the use, development and protection of an international watercourse in an equitable and reasonable manner and provide ways to determine what utilization constitutes equitable and reasonable use. The role of international courts or tribunals has been limited to assessing whether a particular state’s conduct has been equitable and reasonable or to pointing out what is not considered equitable and reasonable, rather than determining how this should be attained in a particular case (Farrajota 2005: 289). For instance, having confirmed the principle of the community of interests to riparian states, the ICJ held in the Gobcˇ´ıkovoNagymaros Project case that Slovakia – by its unilateral act to divert the Danube and control such shared resource – had deprived Hungary of its right to an equitable and reasonable share of the natural resource (ICJ Reports 1997: paragraph 150). Principle of ‘no harm’ One of the established rules of international water law is that a state shall not allow its territory to be used for acts that cause damage to other states. This principle finds its basis in the Declaration of Montevideo adopted by the American States in 1933, which stipulates that no state ‘may without the consent of the other riparian state, introduce into watercourses of an international character, for industrial or agricultural exploitation of their water, any alteration which may prove injurious to the margin of the other interested state’. This principle was confirmed in 1941 by the judgment of the arbitral tribunal in the Trail Smelter case between the USA and Canada. The tribunal stated that ‘under the principles of international law, no state has the right to use or permit the use of its territory in such a manner as to cause injury [...] in or to the territory of another or properties of persons therein’ (Arbitral Award, 11 March 1941, 3 RIAA, 1965). Similarly, in the Corfu Channel case, the ICJ concluded that ‘every state’s obligation not to allow knowingly its territory to be used for acts contrary to the right of other States’ (ICJ Reports 1949, p. 22). More recently, the no harm principle has been reflected in several international instruments, including both the Stockholm (1972) and Rio Declarations (1992). It has been noted that the instruments stated the obligation to prevent harm must be balanced against each state’s sovereign right to develop and exploit their own natural resources

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(McCaffrey 2003: 358, Craik 2008: 60). This principle was also reflected in many international treaties, including the UN 1997 Convention. Article 7 of the Convention provides that ‘watercourse states shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse states’. In light of the above, it is evident that causing harm is not in itself a limit on the sovereignty of state when it takes action that has a transboundary effect, but it has to be qualified. There is a degree of harm that must be reached to limit the sovereignty of the state when affecting other states by its acts. This harm must be ‘significant’. It is true that both Stockholm and Rio Declarations speak simply about ‘harm’ that is unqualified, however many international instruments, including the UN 1997 Convention, have qualified this harm in some form using such words as ‘substantial’, ‘appreciable’ or ‘significant’. Causing harm per se, therefore does not limit the sovereignty of states when they decide to construct dams on transboundary rivers passing through other territories, but such harm must reach a threshold of ‘significance’ to limit the sovereignty of a state to plan and construct these dams. CONSTRUCTING DAMS: BETWEEN SOVEREIGNTY AND COOPERATION IN LIGHT OF THE RECOMMENDATIONS OF THE WORLD COMMISSION ON DAMS (WCD) The WCD report has extensively addressed all technical, financial, environmental and social aspects as well as the rights and obligations of riparian states over the shared rivers where dams are built (The Report of the World Commission on Dams 2000). The WCD recommended a number of guidelines governing the building of dams on shared rivers (Salman 2005: 82). Although the report is not a legally-binding document, it still has high level of importance since it reflects the well-established rules of international water law. The WCD requires an expanded basis for decision-making processes that reflects full knowledge of benefits, impacts and risks with regard to water and energy. The WCD stressed the importance of constructive cooperation prior of any specific interventions for diverting water or constructing dams (The Report of the World Commission on Dams 2000: xxxv). The WCD also stressed the importance of notification at the early stage of planning, as part of a strategic impact assessment. The WCD report specified the steps for such notification, where it stated that the notifying state should allow potentially affected riparian states at least three months in which to identify relevant issues addressed at the subsequent preparatory stage. The notified states should respond within the three-month period. It stated that the notification should take place prior to selecting a location on a shared river, and the notifying state should supply other affected riparian states with adequate technical

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information about the proposed project and the results of any impact assessment. The notified states should respond within six months of the notification. Where any of the notified states fails to respond within the specified timeframe, the notifying state could proceed with the planning and construction subject to its observance of the relevant international law principles and the Commission’s strategic priorities and policy principles (The Report of the World Commission on Dams 2000: 306–60). It has been noted that the procedures proposed by the WCD are in line with the procedures laid down in the UN Convention 1997, and should be seen not only as an endorsement of the UN Convention but also the general principles of cooperation under international law (Salman 2005: 84). Finally, the WCD addressed the situation where dams on shared rivers are built in contravention of good faith negotiations between riparian states, including refusal to establish a panel in case of dispute, or rejecting its finding when it has been established. In such cases, the WCD recommends that external financing agencies, whether bilateral of multilateral, or export credit agencies withdraw their support for projects and programmes promoted by that agency (The Report of the World Commission on Dams 2000: 255). In this regard, recommendation of the WCD has highlighted the importance of financing agencies harmonizing their policies with regard to shared rivers. Such recommendation is likely to put pressure on some countries and their dam agencies, as well as the external financing agencies, to pay more attention to the established rules of good faith negotiations with other riparian states (Salman 2005: 85). EVALUATION OF RECENT EXPERIENCE TO ESTABLISH AN INTERNATIONAL PANEL OF EXPERTS BY ETHIOPIA, EGYPT AND SUDAN FOR THE GRAND RENAISSANCE DAM In 2011, Ethiopia announced its intention to construct the Grand Ethiopian Renaissance Dam. Ethiopia argued that the Dam would provide huge benefit to all the riparian states sharing the Blue Nile River. Egypt and Sudan, however, expressed serious concerns that the Dam would have an impact on the downstream countries, mainly Egypt and Sudan. In light of the above, and based on the principle of the good faith, the three states agreed to establish an International Panel of Experts (IPoE) to review the design documents of the Dam, provide transparent information, solicit understanding of the benefits and assess the impacts, if any, of the Dam on the downstream states. The overall objective of the IPoE was to build trust and confidence among the three concerned states. The following section examines the structure and role of the IPoE as well as evaluating how the three states sharing the Blue Nile can build on this process to achieve cooperation.

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The international panel of experts: structure and role The IPoE was established by the three concerned states, namely Ethiopia, Egypt and Sudan. The IPoE consists of a group of 10 experts, six of which are nominated equally by the three states and the remaining four are to be independent experts agreed upon by the three states. The parties agreed that the four international experts must have expertise in some identified disciplines, such as dam engineering, water resources planning, hydrologic modelling, environment and socioeconomics. The IPoE was established mainly to evaluate the impact of construction of the Great Renaissance Dam and assess its negative as well as positive impacts, raising questions as to what extent this IPoE can build trust among riparian countries. The IPoE has specific role: to review the design document, facilitate consultation among riparian members through the clarification of technical questions, provide expert advice, support the generation of options and alternatives, share and solicit understanding of the benefits and costs accrued to the three countries, and assess the impact of the Dam on the downstream countries. The IPoE was mandated to submit an independent report to the governments of the three state parties in nine months’ time after its establishment. It held its first meeting during December 2011, involving the six national experts, where they agreed on the term of reference for the recruitment of international experts and the rules of procedures for future meetings. Future steps The IPoE was established to examine all the possible effects that will result from construction of the planned Dam by Ethiopia; therefore, based on the principle of good faith, it is strongly believe that the construction of the Dam should have been suspended until the evaluation process of the IPoE has concluded and a final report has been issued to the governments of the three concerned states. The report of the IPOE was submitted in May 2013 concluding that environmental and social impact studies need to be done in order to evaluate the consequences of the project on the downstream countries. The three countries currently holding rounds of consultations to plan for these studies to be undertaken. Once the three states have agreed on the method of implementation of the results of the evaluation and each believes that the Dam shall not cause significant harm, specially that there is no direct effect on the water rights either in quantity and quality, then a further step should follow to agree on the terms and conditions to regulate the future relations of the three states during the construction phase and operation of the Dam. This should cover several rules, such as river diversion during construction, reservoir filling,

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test operation, initial operation, compliance with the operating rules, public notifications and dam safety. In addition, such an agreement should deal with releases to the downstream river for environmental and other functions (water supply and downstream irrigation). These rules must also be extended to deal with water allocation during normal operation, operation during normal and exceptional floods, opening of spillway gates, periodic safety inspection by independent parties, the drawdown procedure if dam safety is in doubt, monitoring of relevant operation data and dissemination of data, and the periodic review of operating rules. Finally, the agreement should identify the rules and steps for settling any dispute that might arise in relation to the execution, application and interpretation of the agreement. A technical committee for the operation of the Dam should be established with the participation of experts appointed by each state. This proposal finds its precedents in many examples, such as the establishment of technical cooperation in 1979 by Brazil, Paraguay and Argentina on a dam project. CONCLUSION International law has developed various limitations on the exercise of sovereignty over natural resources. It recognizes that the utilization of transboundary resources in one state could impact other states that share the same resource. States’ exercise of absolute sovereignty over transboundary freshwater resources contained within a national territory is contrary to international law. It is a well-established norm in international relations that states have no absolute sovereignty; in other words, sovereignty over shared waters must be regulated by the principles of international watercourses law. Accordingly, the basic right of states to exploit their own resources pursuant to their own development policies is subject to not having any transboundary effect. The sovereignty of states is restricted by the application of the principles of international law, which are reflected under the 1997 UN Convention through the rules of equitable utilization and the duty not to cause significant harm. Human survival, the existence of all species, and environment preservation are dependent on access to water in sufficient quantity and quality. This raises the importance of cooperative rather than competitive behaviours to grantee a mutual limitation of competing sovereign rights. Differences regarding the uses of shared watercourses must be addressed cooperatively, rather than through a rigid interpretation of sovereignty that accords states absolute rights within national boundaries. The above conclusion was the main reason for the establishment of the IPoE by Ethiopia, Egypt and Sudan to assess the effect of the planned project by Ethiopia to construct a dam over the Blue Nile. The IPoE is

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entrusted with a specific role in order to ensure the rules of international law that apply to the utilization of the international rivers are respected. No action toward the construction of the Dam should take place on ground until the three states concerned have reassured themselves that there will be no significant harm to the quantity and quality of water and that the safety of the Dam is guaranteed. This is the first step to be taken towards fulfilling cooperation concerning this project, which must be followed up once they agree on the construction of the Dam by Ethiopia by concluding an agreement to regulate their relationship at the time of construction and its operation thereafter. This should not be interpreted as a mere limit on the sovereignty of states to construct dams, but as an application of the rules of international law regulating the use of international watercourses. REFERENCES Agnew, C. and Woodhouse, P., Water Resources and Development (London: Routledge, 2011). Black, Henry C., Black’s Law Dictionary, 6th ed. (St Paul, MN: West Publishing Co., 1990). Bains, J., ‘The Diversion of International Rivers’, Indian Journal of International Law 1 (1960–1). Berber, F., Rivers in International Law (London: Stevens; New York, NY: Oceana Publications, 1959) Bourne, C., ‘The Right to Utilize the Waters of International Rivers’, Canadian Year Book of International Law 13 (1965). Birnie, P. and Boyle, A., International Law and the Environment (Oxford: Oxford University Press, 2002). Brierly, J., in: Humpphary Waldock (ed.), The Law of Nations, 6th ed. (Oxford: Clarendon Press, 1963). Caponera, D., Principles of Water Law and Administration, National and International (Rotterdam: CRC Press, 1992). Clemons, K., ‘Hydroelectric Dams: Transboundary Environmental Effects and International Law’, Florida State University Law Review, 36 (2009). Craik, N., The International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge: Cambridge University Press, 2008). Farnham, H., The Law of Waters and Water Rights (Rochester: Lawyers Co-operative Publishing Company, 1904). Farrajota, M., ‘Notification and Consultation in the Law Applicable to International Watercourses’ in: Boisson de Chazournes, L. and Salman, S. (eds), Water Resources and International Law (The Hague: Brill Academic Publishers, 2005). Garreston, A. Hayton, R.D., and Olmstead, C.J., The Law of International Drainage Basins (New York, NY: Dobbs Ferry, 1967). Gillespie, A., ‘Environmental Impact Assessments in International Law‘, Review of European Community and International Environmental Law, 17 (2008). Handle, G., ‘The Environment: International Rights and Responsibilities’, Proceedings American Society of International Law, 74 (1980).

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Happold, M., ‘Dams and International Law’, in Boisson de Chazournes, L. and Salman, S. (eds), Water Resources and International Law (The Hague: Brill Academic Publishers, 2005). Islam, N. The Regime of International Watercourses: the case of the Ganges from an Asian Perspective, in International Boundaries and Environmental Security: Frameworks for Regional Cooperation, Ed by Blake, G. et al., Kluwer Law, Dordrecht, 1997. Johnson, R., ‘The Columbia Basin’, in Garreston, A. Hayton, R.D., and Olmstead, C.J., The Law of International Drainage Basins (New York, NY: Dobbs Ferry, 1967). Kirgis, F., Prior Consultation in International Law: A Study of State Practice (Charlottesville, VA: University Press of Virginia, 1983). McCully, P., Silenced Rivers: The Ecology and Politics of Large Dams (London: Zed Books, 1996). McCaffrey, S., ‘The Harmon Doctrine One Hundred Years Later: Buried, Not Praised’, Natural Resources Journal 36 (1996). ———, The Law of International Watercourses Non-Navigational Uses (2003). Okowa, P., ‘Procedural Obligations in International Environmental Agreements’ British Yearbook of International Law 67 (1997). Preiss, E., ‘The International Obligation to Conduct an Environmental Impact Assessment: The ICJ Case Concerning the Gabcikovo–Nagymaros Project’, New York University Environmental Law Journal 7 (1999). Salman, S., ‘Evolution and Context of International Resources Law’, in Boisson de Chazournes, L. and Salman, S. (eds), Water Resources and International Law (The Hague: Brill Academic Publishers, 2005). Scudder, T., The Future of Large Dams: Dealing with Social, Environmental, Institutional and Political Costs (London: Earthscan, 2005). Tanzi, A. and Arcari, M., The United Nations Convention on the Law of International Watercourses (2001). Vin ˜ uales, J., ‘The Contribution of the International Court of Justice to the Development of International Environmental Law: a Contemporary Assessment’, Fordham International Law Journal 32 (2008). Winiarski, B., ‘Principes Ge´ne´raux du Droit Fluvial’, Recueil des Cours, 45 (1933). Yu, S. ‘International Rivers and Lakes’ in Bedjaoui, M. (ed.), International Law: Achievements and Prospects (Paris/Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1991).

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Remodelling Sovereignty: Overtures of a New Water Security Paradigm in the Nile Basin Legal Discourse

Tadesse Kassa Woldetsadik INTRODUCTION For decades now, the practice of states in transboundary river courses has grappled to embrace multiple legal concepts regulating various aspects of riparian interactions; states have to select from a wide range of legal formulations advocating the absolute territorial sovereignty, the absolute territorial integrity, the right to reasonable and equitable uses, and the duty not to cause significant harm. In varying forms, the conceptions have endeavoured to define or otherwise condense the measure of freedom exercised by states in the utilization of transboundary rivers. The emerging concept of the ‘right to water security’ is just another addition to the list of ‘theoretical’ frames employed in defence of sovereign entitlements and national water resource development policies. This part will investigate whether the ‘(re)definition’ of sovereign rights of use in the Nile Basin through the prism of ‘water security’ has been aligned with the established usage in international law, and shall present on its implications in promoting Basin-wide cooperation and in resolving disputes associated with the competitive use of scarce water resources in the region. Water has always constituted ‘the one natural resource over which states truly exercised permanent sovereignty’; (International Law Commission 1976: 160) while in the early codification of the UN Watercourse Convention, the question of to what extent the concept of permanent sovereignty over natural resources would be applicable to ‘waters’ had been raised, the unique features of shared rivers – mobility and transboundary flow – were rather highlighted in defining the nature and modalities for the exercise of sovereignty. In institutional initiatives working on the progressive development of international watercourses law, the earliest evolutionary step aimed at limiting the freedom of states was pronounced about a century ago. In 1911, the Madrid Declaration of the Institute of International Law (1911) introduced the ‘limited sovereignty’ approach and highlighted the reciprocal

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feature of riparian rights where it enunciated that ‘the permanent physical dependence of riparian states on each other precludes the idea of autonomy of each state in the section of the natural watercourse under its section’ (emphasis added). Further eroding the traditional perceptions on the sovereignty of states in shared water resources, the Permanent Court of International Justice followed suit in the River Oder case (Permanent Court of International Justice 1929: paragraph 74) – tracing back the principles governing international fluvial law in general and the positions of the international community adopted in regard to these principles in the post-Treaty of Versailles period. The Court held that ‘the community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian states in the uses of the whole course of the river and the exclusion of preferential privilege of any one riparian state in relation to the others’ (ibid.). In the intermediate periods, new normative prescriptions of international watercourses law have either evolved or found clearer expression – impacting on the traditional conceptions of the state and its autonomy within national territories. In a milestone decision of the International Court of Justice (ICJ) in the Gobcˇ´kovo-Nagymaros ı Project case, therefore, the ICJ had to merely recognize and stretch the scope of application of the principle of community of interest enunciated in the River Oder case: ‘modern development of international law has strengthened this principle for nonnavigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the NonNavigational Uses of International Watercourses by the United Nations General Assembly’ (ICJ 1997: paragraph 85). Within the frame of such a jurisprudence and concurrent legal developments that contended to forge a balance between ‘territorial sovereignty’ and a ‘restricted right’ of states to utilize transboundary waters, riparian practice has witnessed numerous, and at times competing, concepts. In this broader evolutionary context, the ‘right’ of riparian states to ‘water security’ can be considered a new dimension in the development of the ‘regime’ of international water courses law. In this part, the presentation on the ‘right’ to water security as an ‘emerging concept’ of international watercourses law – and more particularly under the Agreement on the Nile River Basin Cooperative Framework (the Cooperative Framework Agreement or CFA) – will be constituted in several sections. A background discussion will first introduce the configuration of legal relations and user rights perceptions in the Nile Basin region. This will be followed by a brief analysis of legal developments within the framework of the Nile Basin Initiative; in this regard, the CFA occupies a central stage. Likewise, the examination will involve a systematic orientation on the status and functioning of the water security conception both in contemporary nonlegal discourses and under transboundary watercourses laws. In the last leg,

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a crucial theme of riparian dispute in the Nile Basin – relating to the ‘composition’ and ‘connotation’ of a new formulation incorporated under the CFA, ‘water security’ – will be presented. The investigation will portray the striking deviation in the approaches of the Nile Basin states on water security – a notion that has now introduced ‘new horizons’ on the application of sovereignty and the scope of riparian rights of utilization. CONSTITUTION OF THE NILE LEGAL REGIME The Nile Basin ‘legal regime’ has been constituted through an intricate web of treaties and an incompatible set of national legal conceptions principally organized in the first half of the twentieth century. For the most part, the old legal schemes had been instituted to address specific colonial-era strategic, economic and political considerations of the British Empire, with spill-over effects on contemporary perceptions and riparian rights discourse. Historically, Egypt and Sudan have enjoyed a protected uses regime, espousing multiple legal concepts to sustain and rationalize the existing appropriation of the Nile waters. The modern discourse has espoused strategic thoughts moulded along historical lines, generally defining sovereign entitlements in a purely downstream perspective. In legal idiom, the ‘natural’ and ‘historical rights’ (or prior use) expressions constituted central pillars of the claims of downstream user rights. The two notional stipulates formed the conceptual platform on which the water-sharing schemes and institutional arrangements instituted through the Nile water agreements (the Exchange of Notes 1929 and the Agreement for the Full Utilization of Nile Waters 1959) had been predicated. In the course of a longer period, the ‘unique’ pattern of intertwine between the Nile as a physical resource and the lower-Basin’s riverine civilization has fostered a stratum of values and beliefs that composed the mainstay of Egyptian and Sudanese economic and political thinking to date. At the heart of such a system has also rested a deep-seated ‘proprietary’ perception. Actually, the entrenched historical assumptions of the pre-Aswan High Dam Egypt wherein Egyptian public opinion and the nationalist press not only viewed the Nile as an ‘Egyptian property’ but also asserted ‘again and again that the region of the upper White Nile and Equatorial Lakes was an unredeemed portion of the Egyptian Sudan’ (Tvedt 2004: 100, 136), may not be expected to wane easily in the course of the next half century. In this context, therefore, the downstream requirement for the juridical preservation of historical and natural rights of use could not be regarded as a sporadic phenomenon abruptly manifesting under the 1929 and 1959 treaty arrangements; it has evolved steadily, and over a much longer span of time. In regional initiatives and bilateral diplomacy, Egypt and Sudan largely maintained a parallel pose both with regard to the theoretical composition and the definition of rights of use. In consequence, most upstream

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development schemes potentially impinging on the ‘natural and historical rights’ have generally been held as threatening the rights so recognized, and declared as unacceptable. ‘Historically only Egypt and the Sudan got shares in the water,’ and Egypt’s claim of historical rights, ‘confirmed by many agreements [that] are protected by international law,’ Mahmoud Abu Zeid, Egypt’s former minister of water resources and irrigation had argued without fail (Abu Zied 1999). Likewise, Aziza Fahmi submitted ‘a nation that has built its economy, (and) indeed its very existence on the waters of a common river [...] will hardly accept reassessment of the waters of that river [as] the principle of safeguarding existing rights has been recognized by international treaties’ (Fahmi 1999: 140–1). Prescriptions of a ‘preferential entitlement’ premised on the natural and historical rights formulations and the two Nile waters Agreements have always been a centrepiece in the Basin’s hydro-juridical discourse, frequently engendering Basin-wide political commotions and legal controversies. Nevertheless, without prejudice to any specific rights that derive from binding treaty frameworks, it can be submitted that however such downstream rights may have been formulated or promoted, a circumspect delving into the mechanics of international law would oblige but to concur with the broader hypothesis that the argument for ‘preferential rights’ of use of the Nile waters is unconvincingly linked to the essential dictates of international norms (Woldetsadik 2013: 134–5). In the workings of contemporary international law, the legitimate defence of any riparian claim would have to be inferred either from ‘allinclusive’ treaty regimes or the plain dictates of ‘custom’ governing the use of shared watercourses; no state could be placed in a particularly singular position merely because of its ‘first appropriation’ or ‘extended dependency’ on a transboundary watercourse. A universally-accepted rule of customary international law, restated both under the Helsinki Rules (International Law Association (ILA) 1966: Article IV, as revised) and the UN Convention on the Law of the Non-navigational Uses 1997 (UN Watercourses Convention, Article 5), has unequivocally confirmed the right of each watercourse state to a reasonable and equitable share in the uses of the waters of an international watercourse. The formal ‘parity of rights’ of riparian states has been acknowledged as a ‘postulate of international law so basic that it is unchallengeable’ (International Law Commission 1980: 163). In fact, during the early commissioning of its undertaking on the progressive development and codification of international water courses law, the International Law Commission had itself admitted that the chief issue with respect to some of the basic principles had barely been one of whether ‘they existed as such’, but rather how they should be formulated under the convention to regulate future conduct effectively (International Law Commission 1983: 157). Today, no riparian state can claim unqualified rights of utilization in international watercourse under the guise of ‘sovereignty’ over natural

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resources situated in one’s jurisdiction. Several rules, and most notably the stipulation on equitable and reasonable uses, have highlighted the interdependence of states in a water community. As Caponera submitted (1985: 568), the principles operate to constrain state sovereignty, rejecting all claims of absolute rights of upstream riparians with the same vigour and consistency as the claims for special rights of states in the lower reaches of international rivers founded on the principle of absolute territorial integrity. In practice, customary international law has significantly evolved in the course of the second-half of the twentieth century to discard all ‘extreme’ formulations of rights as objectionable juristic propositions. This has been evidenced by the plenteous interpretations offered in the legal literatures and works of the International Law Association (ILA), the Institute of International Law and the International Law Commission, as well as some fitting discourses in state practice. In the upstream Nile, this progressive evolution of the principles of international watercourses law has provided a strong impetus to defy the continued validity of existing legal arrangements and right prescriptions. In diplomacy, national development strategies and Basin-wide cooperative initiatives, an upper riparian defence of rights has conventionally depended on acts of ‘formal protests’ and ‘reservation of future rights of use’, and more recently on the principle of equitable and reasonable uses (Woldetsadik 2013: 153–5). In this context, therefore, the utility of customary rules and general principles of international law becomes crucial in understanding the measure of restrictions applied on the sovereignty of riparian states, particularly when the validity of the old colonial treaties has been contested by countries upstream; the UN Watercourses Convention has yet to garner enough ratifications to enter into force, and hence proffers limited utility in this respect, although several of its provisions restate international custom. Moreover, against the background of new normative and institutional developments in the Nile Basin region itself, customary law would now have to brace against the difficult task of interpreting ‘new confines’ introduced on sovereignty through the water security conception, a notion that has found expression under the CFA. CURRENT ISSUES UNDER THE COOPERATIVE FRAMEWORK AGREEMENT Inception of the Cooperative Framework Agreement Conventionally, the Nile Basin’s ‘legal regime’ has been organized through a string of pacts, local customs, diplomatic declarations and specific claims predicated on the employ of rules and principles of customary international law on the use, development and management of shared watercourses. Hence, it should not come as a surprise that despite progressive developments in international law and its prescriptions embedded in the

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principles of equity and sovereign equality, the Nile Basin states have continued to champion incompatible water use policies and practices. ‘Existing uses’ along the downstream Nile and the ‘prospective rights’ of resource development in the upper reaches of the River have been defended through the employm of conflicting principles and national policy frames. On the other hand, the past two decades also witnessed milestone cooperative steps steadily but securely transforming the legal and hydrojuridical setting in the region. Along with seven upstream states, Sudan and Egypt continued to engage in negotiations of the Transitional Institutional Mechanism of the Nile Basin Initiative – formally established through the Agreed Minutes of the Nile Council of Ministers (Nile-COM) – at a meeting held in Dar es Salaam on 22 February 1999. The regional diplomatic enterprise has been mandated to set in place the Nile Basin Commission and to endorse an Agreement on the Nile River Basin Cooperative Framework based on a vision ‘to achieve sustainable socio-economic development through equitable utilization of, and benefit from the common Nile Basin water resources’. After years of thorny diplomatic negotiation, the Nile-COM – the highest decision-making organ of the Nile Basin Initiative represented through water and irrigation ministers – concluded its deliberations in Uganda on 26 June 2007, constructing the substantive as well as the procedural contents of the CFA; a panel of experts had presented a working draft as early as in 2000. This historical discourse wrapped a painstaking, decade-long diplomatic initiative that kicked off as early as in 1997, driving user-right dialogues to unprecedented heights. Yet, in spite of the slight flexibility in riparian perspectives and highprofile political pledges to labour on the attainment of ‘equitable utilization of the Nile River resources’, the final phases of the negotiations on the CFA were influenced by serious impediments, and particularly so in the course of 2008–13. Within the Basin-wide initiative, the diplomatic calisthenics of ‘upper riparian’ states campaigned to ‘redraw’ the atlas of sovereign entitlements by annulling all pre-existing treaty frameworks and special privileges accorded through the practice of prior uses; the focus of riparian discourse twirled on the fulfilment of a new set of objectives, including the ‘reallocation’ of appropriated waters or the extension of beneficial uses on the basis of equity. Egypt and Sudan, however, argued in favour of national ‘water security’, essentially subjecting the approval of pending initiatives to specific guarantees recognizing the ‘historical uses’ sustained through colonial treaties and the natural/acquired rights theories. The equitable uses principle enunciated both under the Nile Basin Initiative’s constitutive statute and the CFA had been embraced but in a context that upheld the ‘absolute integrity’ of established uses and rights. For more than a decade, the Nile-COM endeavoured in diplomatic enterprises, but failed to harmonize riparian positions. Divergences overhang with respect to certain key provisions of the instrument

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originally composed by the Panel of Experts in 2000; hence, outstanding matters relating to ‘water security’ and the fate of ‘existing uses and rights’ had to be referred to the heads of states for further scrutiny and concessions. The leaders did not produce a resolution on the proposals submitted, and therefore negotiations continued within the Nile-COM. In such setting, Basin-wide conventions have been held since 2007 – hosting rounds of political and technical congregations of the Nile-COM as well as the Joint Nile–Technical Advisory and Negotiators Committees (Nile-TAC) in Kinshasa (May 2009), Alexandria (July 2009), Kampala (September 2009), Dar es Salam (December 2009), Sharm El Sheikh (April 2010) and, more recently, Juba (June 2013). Throughout, the efforts to move the status of the CFA forward stalled without success. In a paradoxical set of historical and diplomatic coincidences, a landmark decree calling for the complete abolishment of the protected uses regime in the Nile Basin was eventually proclaimed in Egypt. On 13 April 2010, an extraordinary meeting of the Nile-COM held in Sharm El Sheikh passed a ‘resolution’ to proceed at a later date with a formal signature of the CFA based on an ‘earlier decision held in Kinshasa in May 2009’. The Sharm El Sheikh resolution was adopted in spite of outstanding divergences in national positions of the riparian states (Nile Basin Initiative, 14 April 2010). The CFA was eventually opened for signature in Kampala, Uganda, from 14 May 2010 for a period of not more than one year (Nile Basin Initiative, 14 May 2010). Against Egypt’s proposal and declared anticipation that ‘upstream countries (would) reverse their decision to sign a unilateral framework agreement so that negotiations continue’ (Mohamed El-Sayed 2010), the Agreement has since been signed by six states. Ethiopia, Rwanda, Tanzania and Uganda signed the CFA on the opening day; Kenya followed suit on 19 May 2010 and Burundi on 28 February 2011. In the course of the proceedings of the 21st Nile-COM meeting held in Juba in June 2013, the Republic of South Sudan, formally admitted to the Nile Basin Initiative on 5 July 2012, announced its plans and commitment to sign the CFA. In accordance with the stipulation of Article 42, the CFA shall enter into force on the 60th day following the date of deposit of the sixth instrument of ratification or accession with the African Union. With Ethiopia’s federal parliament, the House of People’s Representatives, taking the first historic move in ratifying the CFA on 13 June 2013, the formal transformation of the Nile Basin Initiative into a permanent Nile Basin Commission was set in motion. Contentious themes under the Cooperative Framework Agreement In an unprecedented move in the normative structuring of rights through treaties, the CFA introduced a novel perspective for setting boundaries on

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the sovereignty of states over shared watercourses; if only dubiously, the CFA conjoined the broader set of values that traditional principles of international watercourses law have delivered with the new ‘water security’ approaches. Among others, the preamble of the CFA highlighted the need for integrated management, sustainable development and harmonious utilization of the Nile water resources. On substance, the CFA reproduced several foundational principles of international watercourses and environmental laws – including the right to equitable and reasonable utilization and the duty not to cause significant harm – and called for the sustainable development, protection and conservation of the River Basin and its ecosystem. Enclosed in 44 articles, all but one provision of the text had been endorsed through consensus of the partaking states. The deep conceptual controversy that occupied a central stage in nearly all institutional and academic enterprises on water courses law, both with respect to the ‘definition’ and the ‘standing’ of various principles of international watercourses law, was therefore simply pushed to the side. This complex responsibility shall now be discharged by the Nile Basin Commission, a political unit essentially constituted of a conference of heads of states and governments, and its governing body – the Council of Ministers – which will ‘examine’ and ‘make’ decisions regarding the ‘equitable and reasonable uses’ of water in each riparian country. The effective employ of such a huge and complex power entails that both the Commission and the Council would have to establish a system of authoritative procedures for the notification, evaluation and determination of whether states, pursuing national developmental aspirations, are acting within the confines of their equitable shares, and for dealing with consequences thereof. In the long term, their responsibilities would also involve the difficult task of instituting mechanisms for a comprehensive review of conflicting riparian plans and for balancing interests on the basis of equitable considerations. The process leading to the adoption of the CFA has hardly witnessed convergence on major themes of riparian concern. In the unparalleled tempo of diplomatic unison in Sharm El Sheikh, seven riparian states in the upper-most reaches of the Nile adopted an analogous position on the contents of the CFA that proposed to scrap all pre-existing arrangements outright. Egypt and Sudan reacted strongly, and reiterated that such position adopted at the extraordinary meeting of the Nile-COM ‘reflects the views only of the states’ (Nile Basin Initiative, 14 May 2010). Instead, a substitute proposal for directly launching the Nile Basin Commission within the framework of which further negotiation on the remaining pieces of the CFA would be undertaken failed to garner upstream favour. While Egypt and Sudan recognized the Nile as a ‘shared resource’, and admitted, at least in principle, the right of every riparian state to ‘equitable utilization and share’, such recognition has been embraced only in a context that addresses their ‘water security’ concerns – which they argued should guarantee the ‘absolute integrity’ of existing water use regimes.

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Two disproportionately constituted groups of Basin states, following geographical divisions in the upper- and lower-most reaches of the river course, disagreed on the substantive framing of one important stipulation: Article 14 of the CFA. Article 14 of the text endorsed by upstream states read: Having due regard to the provisions of Articles 4 and 5, the Nile Basin States recognize the vital importance of water security to each of them. The states also recognize that the cooperation, management and development of waters of the Nile River System will facilitate achievement of water security and other benefits. The Nile Basin States therefore agree, in a spirit of cooperation: (a) to work together to ensure that all states achieve and sustain water security, and (b) not to significantly affect the water security of any other Nile Basin State.

It is important to note that this stipulation has been preceded by two foundational provisions: Article 4 on the right to equitable and reasonable utilization, and Article 5 on the obligation not to cause significant harm. A novel concept, no doubt, Article 14 introduced a scarcely-utilized paradigm into the Nile Basin legal discourse – water security. Under Article 2(f) of the CFA, water security has been defined as ‘the right of all Nile Basin states to reliable access to and use of the Nile River System for health, agriculture, livelihoods, production and environment’. The provision on water security, embraced in the CFA against Ethiopia’s insistent objections, was ‘essentially imposed’ by the negotiators as a compromise, breaking the deadlock during the negotiations. However, the approach failed to credibly indicate what the significant added-value of the concept’s inclusion would be in ‘defining’ the boundaries of sovereignty or in further elucidating riparian rights per se, and particularly so in light of the presentation of several well-recognized principles of international watercourses law under various headings of the same legal instrument. Despite its essential obscurity and the dubious circumstances under which it was incorporated, the notion of water security – conventionally inculcated in political, diplomatic and developmental dialogues – was able to find a definite expression in the CFA document. THE CONCEPT OF WATER SECURITY: ALIGNMENT WITH INTERNATIONAL LAW In general, it is probably correct to hold that the new approach adopted by the Nile Basin states could be considered a demonstration of the ‘increased’ credence being attached to water security perspectives under international watercourses law and water resources management regimes. Indeed, there

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has been a growing predisposition on the part of the international community to achieve and sustain ‘water security’ across communities. Traditionally, the notion of water security has surfaced in social, foreign policy, military and development-oriented researches, and has received widespread attention in current water-related studies. Development threats associated with the provision of water security had been the focus of successive United Nations meetings since the UN Water Conference in Mar del Plata (March 1977) and the International Conference on Water and the Environment in Dublin (January 1992); they had also been addressed at the Ministerial Declaration of The Hague on Water Security in 2000. In juridical discourses, however, a ‘right to water security’ has scarcely evolved to a subject of concentrated consideration, nor developed into a legal standard, although a few studies have been conducted in the past. This verity complicates the task of establishing its position within riparian rights discourse conventionally premised on other commonly-recognized principles of international law. Water security has generally been conceived as entailing two meanings. The first applies to the judicially- or diplomatically-enforceable rights of an individual or state to a fixed water allocation regime established by water laws that label water a scarce resource and that must be allocated rationally and fairly among competing claimants. This perspective does not espouse that lack of security would as such translate into widespread social unrest or even violence (Tarlock 2008: 716). The second conventional meaning refers to a physically dependable supply of waters, whether tied to a legal allocation or based on capture. This approach presumes that unless sufficient water exists for a nation’s sustainable food production and related health purposes, lack of water will become a source of social insecurity or violence. (Ibid) It implies the availability of an acceptable quantity and quality of water for health, livelihoods, ecosystems and production, coupled with tolerable levels of water-related risks to people, environments and economies (Grey & Sadoff 2007: 548). The contemporary understanding of water security has generally been embraced along the second line – generally interlocking the physical scarcity of waters with a state of insecurity – and may even be broader and more complex in its essence. It is associated with thoughts that address issues of ‘human security’ in a wider context of ‘international security’ and ‘human development’. Development challenges linked to the provision of water security have been discussed since as early as the UN Water Conference in Mar del Plata in March 1977. By 1994, the UN Human Development Report had already introduced new dimensions of human security perspectives; the report pronounced that the interpretation of security as ‘security of the territory from external aggression or the protection of national interests in foreign policy’ alone, is a narrower approach that can no longer be sustained as a plausible proposition. In introducing debate on human security, the 2006 UN Human Development Report argued that the aim had been ‘to look

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beyond narrow perceptions of national security, defined in terms of military threats and the protection of strategic foreign policy goals, and towards a vision of security rooted in the lives of people; water security is an integral part of this broader conception of human security’ (UN Development Programme (UNDP) 2006: 3). This outlook coalesces the cross-sectoral security concerns of ordinary people in nearly all aspects of their lives – including health threats, education, hunger, malnutrition, environmental hazards, social vices or even lack of political spaces – and highlights the crucial role and need for achieving water security within comprehensive developmental frameworks that endeavour to address these specific challenges in society. Obviously, a few resources have more critical bearing on human security than water; security in access to water as a productive input and protection against vulnerabilities associated with uncertainties in water-flows have been the keys to human development (UNDP 2006: 133). In this context, a water-secure world represents an ideal developmental setting where water would be harnessed for production, with every individual granted access to enough safe and affordable water to lead a clean, healthy and productive life, where the environment is protected, water resources are well managed and communities shielded from floods, droughts, landslides, erosion and water-borne diseases (Global Water Partnership 2012: 2). Water security therefore becomes a development imperative whose non-existence could engender human crises and serious instability; in principle, such threats are common to all people across all jurisdictions, and often security challenges in one region could have spill-over effects that endanger other communities. This vitality of water was restated in the Ministerial Declaration of The Hague; by stressing the inevitable link between threats to water resources as emanating from pollution, unsustainable use, changes in land use and climatic changes on the one hand, and a general state of poverty on the other, the Declaration proclaimed that the international community should act in concert to provide ‘water security’ in the twenty-first century. Among others, this involved ensuring the protection of freshwaters, coastal ecosystems, the promotion of sustainable development, political stability and the grant to every person of access to enough safe water to lead a healthy and productive life (Ministerial Declaration 2000). Consequently, the significance and interface of water security with the system of international watercourses law ensues in connection with two major challenges to human security: security of the ‘resource base of waters’ itself, and concerns related to the methods in which communities ‘exploit water resources’ for existence. In a more commonly-applied juristic etymology, this crucial link between the two lines of thought flows along a contour which advocates that transboundary water resources should be developed ‘equitably and reasonably’, with a view to attaining their ‘optimal use’, ‘integrated management’ and ‘sustainable utilization’,

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and with the aim of guaranteeing ‘individual access’ to enough, safe and affordable water. Achieving water security in any given setting also presumes cooperation between different kinds of water uses and users within a framework that adopts a comprehensive approach for its management, integrates water into development planning, and allows for the protection of ecosystems. Three closely interwoven objectives reiterated in water security debates that are also important in our considerations of understanding the limits on sovereignty and riparian entitlements would therefore be ‘opportunity of access’, ‘integrated management’ and ‘ecological preservation’; the approaches would seem to forewarn that increasing uncertainties with regard to water supplies may well become the cause of instability in communities and across political orders. EMBRACING WATER SECURITY UNDER THE CFA: SIGNIFICANT ADDED VALUE? Several key ‘components’ of the water security paradigm have already been ensconced in juridical discourses; in fact, themes governing issues of equitable access, ecological preservation and the comprehensive management of basins are explicitly embodied in contemporary principles and instruments of international watercourses and environmental laws. While it is difficult to trace the precise inroads of the ‘right to water security’ within the frame of traditional rights discourse organized on the basis of rules and principles of international law, the concept of water security has not yet evolved, nor employed as a legal dictum, regulating riparian conduct. In this regard, it can be noted that the CFA has initiated a radical enterprise in the treaty practice of watercourse states. As discussed above, the broader set of objectives that water security paradigms aspire to fulfil do in some form ‘coextend’ over themes covered by international legal regimes governing the use and management of shared watercourses. For instance, the social, environmental and economic imperatives of water security emphatically concentrate on equitable access to water through the adoption of robust policies and legal frameworks, on building resilience in the face of extreme water events, on managing waters more sustainably, on increasing water productivity and conservation in all water using sectors, and on co-sharing economic, social and environmental benefits in transboundary rivers (Global Water Partnership 2012: 7). In spite of the common domains, however, it is also evident that water security constitutes part of a much broader human security imperatives that are but ‘universal’ and ‘interdependent’ of each other. In fact, water security is not merely a water sector issue (Global Water Partnership 2012: 5); it has wide-ranging implications, cutting across a number of users and security subjects. In dealing with its challenges, therefore, adopting

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certain measures that are not ‘directly’ connected with water –mainly in the spheres of political and economic governance – might in some cases be indispensable. Hence, while the boundary could be hard to delineate, the broader range of goals implicit in human and water security discourses do not wholly transpire in the application of traditional legal principles. The rules of international watercourses law seek but to regulate the utilization and management of shared watercourses in specific river basins, with ‘constricted’ social, economic, environmental and human security purposes in mind. The point is that while the two outlooks venture to emphasize ‘water resources’ and their ‘multifarious uses’ and none brag about proffering solutions to every predicament in society, thoughts about water security and international watercourses law do not co-extend over the same realm or aspire to fulfil the same set of imperatives. On the practical level, however, the distinction or interface between the two outlooks would very much depend on what specific aspects of water security perspectives have been embraced in legal dialogues, although the challenges associated with relative ambiguity and modalities for achieving water security remain. In considering the interface, if one concentrates on the basics of human security imperatives fulfilled through guaranteeing water security as stated above, i.e. ‘opportunities of equitable access’, ‘cooperation’, ‘integrated management’, ‘protection of ecosystems’ and ‘sustainable development’, one will discern that perhaps water security paradigms have not introduced an entirely ‘new’ approach that has not been presented in legal procedures. For several decades now, international law has been advocating a ‘holistic’ normative frame with a view to regulating the uses and management of shared river courses – which incidentally serve in establishing broader securities rooted in the wellbeing of states and the lives of riparian societies. In assessing what ‘added values’ the enclosure of a water security concept will engender in the Nile Basin and, by implication, in understanding its impacts on the sovereignty of states, the crucial analysis should therefore not merely focus on the conceptual crossing points presented earlier; instead, it needs to identify whether international watercourses law has adequate procedures for meeting these goals and for assuaging the water security fears of communities and states. International law plays crucial functions in implementing various components of social and developmental policies espoused under the water security postulate; it defines sovereign entitlements, and establishes legal procedures and mechanisms for addressing issues of availability, access, conservation and cooperation in the management of shared watercourses. The system also provides a ‘normative platform’ for linking multiple uses and users across the national and international boundaries of shared river basins, as well as principles that prompt cooperation and negotiation with a view to regulating conflicting demands, resource development choices, and most importantly the integrated management of transboundary water resources.

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The entrenched presence of binding and fairly articulate rules and procedures of international custom has far-reaching influence on broader issues of human security and developments. If employed appropriately, in good faith and with political resolve, principles of international law could be instrumental in providing a wide range of benefits, and in reducing fears and water security challenges of states sharing transboundary waters. In contemporary literature, major discourses on the relationship between international law and water security would appear to corroborate this argument; while it is admitted that certain constraints in the very constitution of the system of international law have always influenced its effective functioning, the role of international water law in promoting water security has nonetheless been highlighted. This has generally been achieved by adopting an approach that focuses on ‘addressing gaps’ in the laws (through, for example, advocating basin-wide and integrated management of water resources), rather than by submitting water security as a ‘conceptual remedy’ or a ‘substitute rule’ for addressing insufficiencies in international norms (McIntyre (n.d): 9). In a widely referred chapter, Wouters et al. (Wouters, Vinogradov & Magsig 2008: 98) concluded that ‘evolving international legal frameworks that govern transboundary water resources provide an appropriate platform for addressing water security concerns’; they argued ‘the notions of equity, reasonableness, fairness and sustainability which are enshrined in the key principles of international water law properly reflect the core objectives of a fair and effective management of the world’s shared water resources, and thus of the promotion of regional and global peace and security’. In fact, from the outset, some writers have registered concern about the need for ‘securitization’ of water. Tarlock submitted that despite the many calls to de-securitize natural resource regimes (including water), there are just a handful of studies that have rigorously examined if, how and why regimes pertaining to natural resources are securitized, as well as the implications of this process on the operation of water management regimes (Tarlock 2008: 712). He referred to some arguments which held that discussing water in security terms is a means for recruiting greater support for measures with political aims, not environmental ones (ibid.), hence ignoring other objectives that involve pressing issues of shared watercourses. Of course, it cannot be argued that normative stipulations of the system of international law, including equity, could provide a complete substitute for objectives pursued under the banner of water security; legal machineries can render only limited results in this regard. As Tarlock rightly submitted, they cannot alone rid the fears, incompatible demands, inequitable distributions and supply uncertainties that conventionally create the risk of water insecurity. Political will and a genuine cooperative spirit of states as well as other stakeholders is very crucial (ibid.: 717). Only when the latter are in place can a promising cooperation be framed,

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fears obviated, and institutions created to deal with multifarious challenges relating to the definition of rights and the equitable and sustainable utilization of resources. In appraising the effect of water security and in understanding its role in introducing new limits on the sovereignty of watercourse states, therefore, the classic state of affairs in the Nile Basin should be viewed through this prism; in this regard, the position is held that competition over the River’s resources does not necessarily entail water security problems that could not be handled through legal and institutional mechanisms. True, there is no definite answer to the issue of whether broader equity and procedural fairness will promote security, but this is not simply because, as Tarlock argued, the system of international law does not provide for an authoritative application of equitable apportionment (ibid.). It transcends beyond, and in any event the system’s ‘limited’ failing in addressing water security fears does not justify recourse to an entirely new conceptual regime. On the contrary, the propensity to accommodate a novel concept of uncertain juridical consequence in the Nile Basin’s legal discourse may well enhance the pertinence of ‘international rules’ in promoting water securityrelated subjects. After all, water has been treated as a top-most agenda in the list of downstream states’ broader security concerns for quite a long period. It is admitted that the introduction of the principle of water security under the CFA has prompted a normative limbo – complicating riparian dialogues in the past four years. Difficulties associated with its novelty, ambiguity and status still linger. While a definitional provision of ‘water security’ has been provided under Article 2(f) of the CFA, no further clarification has been availed, even on the highest level of officials involved in the process, as to the conceptual and practical imperatives that prompted the need to organize a new concept under the Basin’s legal framework. The fundamental objective that impelled the institution of the CFA, it is stated in the preamble, has been ‘to promote the integrated management, sustainable development and harmonious utilization of the water resources of the Basin, as well as their conservation and protection’. If, in fact, this is endorsed as the overriding purpose, one would face difficulties indicating the ‘significant added value’ of incorporating a water security principle under Article 14 of the CFA in promoting these objectives or in elucidating sovereign rights per se. This is particularly true in light of the presentation of several well-entrenched rules of international watercourses law under various sections of the CFA. At the very least, the primarily non-legal setting of the discussions in which the notion of water security evolved hinders any impression of the theory as a truly ‘normative’ guideline of rights in the near future. If, however, in propounding under Article 14 that ‘all states shall achieve and sustain water security’ the CFA has merely intended to highlight the

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deep state of trepidation that ensues in circumstances where individuals or riparian communities are deprived of a ‘right of access to water’, and hence to forestall threats against development through the articulation of ‘rights and obligations’, then this effort is by and large superfluous. Indeed, human security imperatives linked to access to, availability and conservation of waters have already been part of the regulatory framework of the mainstream international watercourses law. The key instrument on the subject – the UN Watercourses Convention – was adopted in 1997, taking into account problems affecting international watercourses resulting from ‘increasing demands’ and ‘pollution’, and considering the need for ensuring the ‘sustainable utilization’, ‘conservation’, ‘management’ and ‘protection’ of international watercourses. Moreover, in establishing broader equity, several factors – including the economic and social needs of watercourses states, the protection of existing and potential uses of watercourses, and economy of use of water resources – have all been included as important considerations. The same legal approach has also been replicated under the CFA. Furthermore, it should be noted that between competing categories of uses of international watercourses, both the UN Convention, the Helsinki Rules, the ILA’s Berlin Rules (2004) and the CFA have accorded special emphasis to the satisfaction of ‘vital human needs’ (ILA 2004: 11). This requirement has been understood as extending to water needed to meet a wide range of necessities in riparian societies – including for drinking, cooking and washing – and for other uses necessary for the immediate sustenance of a household such as watering livestock and kitchen gardens, and ‘possibly’ for growing basic food crops (ibid.). In light of these pervasive inclusions, there existed no compelling rational for introducing a separate rights regime anchored on Article 14, and thereby ignite an interminable disagreement that imperils the whole cooperative scheme, where an identical protection could have been afforded under stipulations governing equitable utilization, the duty to conserve and cooperate, and the obligation not to cause significant harm. This is unless, of course, in introducing water security a distinct purpose had been conceived from the outset – that by importing an ambiguous principle susceptible to multiple interpretations, the Nile Basin states had projected to instil a ‘political’ notion to temporarily diffuse riparian confrontation and stalemate, and provide a framework that could be conceived by Basin states as reflecting ‘their’ respective positions. Again, while it must be reiterated that international law cannot alone present a solution to every predicament in society as relating to the utilization of watercourses, a proper use of its principles and procedures could surely fulfil several of the water security objectives stated above, obviating the need for introducing a distinct regime of rights under any other umbrella. A mature response to agendas of water security has conventionally focused on actions at the local, national and river basin levels that lead to

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increased collaboration between nations on shared management of water resources, joint visions, policy principles and the benefits thereof (FAO 2007: 16). International law has more than adequate procedures and mechanisms for effectuating such purposes. THE CONTEMPORARY STATE OF THE COOPERATIVE FRAMEWORK AGREEMENT The importation of a water security concept whose confines and status are not properly delineated has only provoked further disagreement, jeopardizing the whole cooperative scheme in the Nile Basin. What is more, even the inclusion of such uncertain formulation has done little to inveigle either Egypt or Sudan into fully espousing the CFA in its present form. In spite of the explicit references to a right to equitable uses and duty not to cause significant harm in other parts of the CFA, both states failed to perceive that ‘downstream rights’ and ‘use regimes’ would be shielded adequately under the new cooperative scheme; both held that an arrangement under the CFA short of securing the existing status quo would be wholly objectionable. Ironically, way back in 1993 Caponera had warned that on account of its relative vulnerability to upstream water withdrawals and the possible benefits of comprehensive water control schemes placed in the upper reaches, Egypt would have to begin negotiations without placing preconditions on the other parties, such as those contained in the philosophy of the 1959 Agreement, and make some concessions to upstream riparians, and particularly to Ethiopia (1993: 660). Quite conversely, a counter-proposal submitted by Egypt provided that Article 14b should be re-formulated to read that the Nile Basin states shall work together ‘not to adversely affect the water security and current uses and rights of any other Nile Basin state’. Under the Egyptian proposal, Article 14 of the CFA was intended to dole out more than just the conventional objectives of the water security concept reiterated in human development paradigms. The broader security contemplated, i.e. the security of all pre-existing uses – its effects on other riparian communities notwithstanding – was readily apparent both in the framing of Article 14 and subsequent declarations of state policy during the last stages of the negotiations on the CFA. In fact, shortly before the 2011 Arab revolution, Egypt had declared its intention not to sign the Agreement before two vital conditions had been met: ‘commitment to an early notification mechanism before the construction of any projects in upstream countries, and the setting of a procedure wherein all decisions (in the Nile Basin Commission) should be taken by consensus, not by majority’; in the meantime, Egypt argued, if upstream countries’ states insist on unilateral signing of the accord, Egypt will not abide by it and any such initiative would not a have legal impact on its share of the Nile water. The CFA must

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clearly recognize Egypt’s and Sudan’s historic shares in the Nile waters (Mohamed El-Sayed 2010). FROM LEGAL STALEMATE TO DIPLOMATIC CONFRONTATION Such downstream proposition instilled a frosty temperament on the Basin’s diplomatic tempo, re-kindling a fresh round of discord in the hydropolitical discourse of the region. Several riparian states, including Ethiopia, Tanzania, Kenya and Uganda, renewed their rejection of the status quo mantra. In tandem, upper riparian countries ‘reasserted’ their legal entitlements within the frame of existing normative mechanisms founded on widely recognized principles of international law. To counter the defying stance of upstream states, the post-Mubarak Egypt resorted to high-profile diplomatic campaigns, appealing for delays in the ratification of the CFA in Nile Basin states pending the constitution of a duly mandated civilian government in the ‘new’ Republic of Egypt. While such request has given the impression that the ‘underlying causes’ of userright disputes have still been conceived wrongly, the insistence that there be a temporary deferment of the ratifications, mainly spearheaded by a body dubbed the ‘Egyptian public diplomacy’, was formally accepted by the Ethiopian government. Despite this, Egypt’s first ever democratic election – bringing Mohamed Morsi to the presidency of the new political order on 30 June 2012 – injected little momentum to kick-start diplomatic negotiation on the final chapter of the CFA or to restrain the contrasting riparian approaches now espoused under the frame of ‘water security’. The blow to any hopes of the CFA being a comprehensive pact including Egypt came about in June 2013, following a tense diplomatic altercation and fallout between the two major players in the basin: Ethiopia and Egypt. For about a century now, Ethiopia has been entangled in diplomatic and legal politics of the Nile; yet a forbidding dearth in policy, fiscal facility and technical competence inhibited far-reaching developments within its jurisdiction. For most of the twentieth century, therefore, Ethiopia formulated user-right policies in a less concrete fashion, mostly concentrating on reacting to specific downstream development schemes on the Nile. Indeed, during a period where key players of the hydro-legal discourse in the region – first Great Britain, and later Egypt and Sudan – conceived the prior appropriation rule as ipso facto establishing incontestable rights of use, Ethiopia stalked distantly, not only in presenting an organized institutional facility that oversees the development of its water resources, but also in composing comprehensive strategies for the legal defence of water uses rights. Confronted by threats that full appropriation of the Nile waters would be realized through the construction of the Aswan High Dam, Ethiopia strove to deal with the contingency by staking claims of future rights through diplomatic procedures. From time to time, Ethiopia has attempted to

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proclaim that its rights shall not be established by simple default, before the problems relating to the division of the Nile waters were pleasingly settled. It did not succeed. With the advent of a new regime in 1991, Ethiopia’s water development policies and national strategies were reorganized with a candidly critical theme, scorning the status quo in the basin as objectionable and unsustainable. Legal, financial and technical hurdles notwithstanding, the issues of restructuring relations with the downstream Nile countries and developing the full potentials of the Blue Nile Basin were put high on the government’s agenda. The themes were particularly highlighted in the statement on Ethiopia’s foreign policy (Foreign Affairs and National Security Policy and Strategy 2000: 124). The extreme susceptibility of the country’s rain-fed agricultural economy, sustained in an increasingly erratic climatic setting, urged policymakers to endorse that an intensified use of irrigation should play the most crucial role in stabilizing, enhancing and diversifying agricultural output. The Ethiopian Water Resources Management Policy was adopted in 1998–9. Two vital executive instruments of the Policy, the Ethiopian Water Sector Strategy and a 15-year Water Sector Development Program have since been completed and set in place in 2001 and 2002, respectively (Ministry of Water Resources 2002). Prompted by rapid economic development, Ethiopia undertook measures not only in drawing an outline of national policies, but also in laying down specific arrangements for the development of projects that anticipated to enhance the Blue Nile’s utility across its jurisdiction. In the first decade of the twenty-first century, Ethiopia’s relative stability and fiscal command demonstrated that the absence of particular cooperative arrangements or international financial provisioning could no longer deter its water resources development enterprises. The Grand Ethiopian Renaissance Dam project was conceived in such a context, and its implementation started in 2011. The project, the greatest engineering feat in Ethiopia and one of the biggest hydropower infrastructures in the world, is situated at Guba in the Benishangul Gumuz region, very close to the Ethiopia–Sudan border (Figure 29.1). It comprises a dam about 1,780 m long and 145 m high, and will host a power plant with an installed capacity of 6,000 MW. The new dam will create Ethiopia’s largest artificial lake, impounding 74 billion m3 of the Blue Nile flows – nearly half the volume at the Lake Nasser Reservoir – and has a total surface area of 1,680 km2 (see Figure 29.2). On 28 May 2013, on the second anniversary of the launch of the Dam construction by the late Premier Meles Zenawi, Ethiopia started diverting the Blue Nile River’s course along a different route, an engineering procedure required to provide a way for the physical construction of the Grand Ethiopian Renaissance Dam on the bed of the River. As though this step had not been anticipated in the preceding two years of the project’s life, Egypt’s reaction to Ethiopia’s move was intense, reintroducing the

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Figure 29.1.

A History of Water

Construction site of the Grand Ethiopian Renaissance Dam.

debate on water security in its most extreme version. Under immense political pressure from various constituencies of the Egyptian society, President Mohamed Morsi was compelled to convene a meeting with opposition party leaders a few days before he was ousted and address the Egyptian public via a live televised speech where he declared that ‘his country is ready to confront any threat that would endanger the country’s water security’, and that ‘Egypt’s water security cannot be violated at all’; should Egypt ‘lose one drop, our blood is the alternative’, the President confirmed to his people, further promising that ‘all options are open’ to forestall the predicament’. (Al-Aharam Online 2013). Apparently, the final report of the International Panel of Experts – submitted on 1 June 2013 to the governments of Ethiopia, Sudan and Egypt after months of scientific study on the Grand Ethiopian Renaissance Dam – had played little role in influencing the hydro-political discourse in Egypt. Outraged by the open declaration, Ethiopia summoned the Egyptian ambassador in Addis Ababa, expressed its displeasure and demanded an official explanation. Ethiopia’s Foreign Ministry also reiterated that the project would not be stopped for a second despite the stir caused in Egypt. Egypt’s official, Ambassador Ali Hefny, conveyed his country’s serious apprehension to the Ethiopian ambassador in Cairo over the latter’s move in diverting the course of the Blue Nile River.

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Figure 29.2. Map of the Grand Ethiopian Renaissance Dam and stretch of the artificial lake created by the Dam.

While the diplomatic confrontation subsided on 18 June 2013 after Egypt’s Foreign Minister Mohamed Kamel Amr visited Addis Ababa, and both countries pledged to engage in further consultations to resolve outstanding issues, the blotch of the brief incident lingered as a sombre reminder of how water security could be flexibly construed to justify objectives that are inherently incompatible with any reading of the principles of international watercourses law that aspire to realize opportunities of equitable access to all people in river basins. CONCLUSION It remains difficult to predict what the future holds in relation to the Nile Basin’s legal and institutional discourse. Currently, it is clear that the diplomatic process has reached a point of no return. Such a scale of cooperative engagement and juridical feat has simply been unprecedented in the Basin’s diplomatic history. True, the Nile Basin is a geographical, political and economic region of huge contrasts. Given the scales of socioeconomic dependence, climatic setting and the profundity of fiscal and physical outlays procured along the

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downstream Nile, water security concerns reiterated in Egypt and Sudan with a view to imposing new limits on the sovereignty of riparian states cannot be overlooked. For decades, however, the upstream states have endured a history of conceived inequity in the utilization of the Nile water resources. In this context, the CFA presents a fairly perfect setting – both diplomatically and legally – for rectifying past inequities, addressing distinctive downstream concerns, and for engaging in a collaborative spirit on the basis of established rules and principles of international custom. Certainly, competition over scarce resources of the Nile waters will intensify in the future, potentially prompting a broad range of developmental and security concerns. While it is true that the introduction of a new water security principle has engendered a normative limbo in the Basincomplicating riparian dialogues in the past few years- and a challenge also remains in establishing whether the theory of equity will promote water security in all respects, existing frameworks of international law could very well provide an overarching system for implementing the essential components of water security across basins and communities. Indeed, human security imperatives linked to access to, availability and conservation of waters are already part of the regulatory framework of the mainstream international watercourses law. This is particularly evident under the CFA, which has reproduced several principles of international watercourses law. In light of this, the pronouncement, under Article 14 of the CFA, that ‘all states shall achieve and sustain water security’ adds little value in promoting rights of access to water, in elucidating sovereign rights per se or in forestalling threats against development and wellbeing – subjects stated as key objectives in water security paradigms. In the context of contemporary legal developments in the Nile Basin, the Egyptian and Sudanese legal positions have not only been the most ‘extreme’, but also the most ‘vulnerable’, especially in relation to Ethiopia, for no rule of international law would eventually sustain ‘existing use’ regimes under the guise of water security without some qualifications. This juridical discernment also explains why it has been difficult for upstream states to subscribe to the Egyptian arrangement proposed under Article 14b, or to alternative schemes that fall short of ‘reorganizing’ the Basin’s status quo in one form or another. Upper riparian states have insisted, and quite convincingly so, that years of involvement in protracted dialogues have been triggered by a reasonable buoyancy that the diplomatic process will eventually yield tangible gains. In the long-term, the preservation of common riparian interest would oblige Egypt and Sudan – historically the largest users of the Nile waters – to avoid extreme versions of the status quo espoused in the past; the downstream policy will need to demonstrate that the regional forum in fact represents more than a mere time-buying diplomatic workout. It is true that, so far, historical, political and fiscal considerations have hindered the

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effective utility of the Nile waters in the upper reaches of the river; this may have incidentally served the short-term interests and water security concerns of downstream states. Yet, under obviously changing economic configuration, political stability and settings across several upstream states, and particularly in Ethiopia, the current impasse on the CFA should not corner such countries into harbouring deep-seated convictions that concentrate on ‘unilateralism’ as the only tool of compelling serious negotiations. In the lower reaches of the Nile River Basin, sustainable security of national riparian interests does not lie in the introduction of an ambiguous principle of little precedent in international legal practice, but on a fitting compromise volunteered today both in terms of anticipation and legal justifications. REFERENCES Abalhoda, A., ‘Nile Basin General Information and Statistics’. International Commission on Large Dams 61st Executive Meeting (Cairo: International Commission on Large Dams, 1993), p. 13 Arab Republic of Egypt. National Water Resources Plan for Egypt 2017 (Cairo: Ministry of Water Resources and Irrigation, Planning Sector, 2005). Baker, S., The Albert Nyanza, Great Basin of the Nile and Explorations of the Nile Sources (London: Macmillan, 1866). Bourne, C., ‘The Right to the Waters of International Rivers’. Can. Y.B. Int’l L. 3 (1965), p. 187. Caponera, D., ‘Patterns of Cooperation in International Water Law: Principles and Institutions’, Natural Resources Journal 25 (1985), p. 568. ———, ‘Legal Aspects of Transboundary River Basins in the Middle East, the Al Asi (Orentes), the Jordan and the Nile’. Natural Resources Journal 33 (1993), p. 660. ‘Egypt’s Live TV Coverage of Nile Crisis Meeting Draws Fire’, Al-Ahram Weekly, Tuesday 4 June 2013, Available at: http://english.ahram.org.eg/NewsContent/1/0/73174/Egypt/0/Egypts-live-TV-coverage-of-Nile-crisis-meeting-dra.aspx. Exchange of Notes between his Majesty’s Government in the United Kingdom and the Egyptian Government in regard to the use of the waters of the River Nile for irrigation purposes. Cairo, 7 May 1929. Fahmi, A., ‘Water Management in the Nile, Opportunities and Constraints’, in Sustainable management and Rational Use of Water Resources (Rome: Institute for Legal Studies on International Community, 1999), pp.133–147. FAO, Coping with Water Scarcity – Challenge of the Twenty-First Century (FAO, 2007). Federal Democratic Republic of Ethiopia, Foreign Affairs and National Security Policy and Strategy (Addis Ababa: Ministry of Information, 2000). Gamal Nkrumah, ‘Fresh Water Talks’, Al-Ahram Weekly Online, 694 (2004). http:// weekly.ahram.org.eg/2004/694/eg4.htm, accessed December 2012. Global Water Partnership, Increasing Water Security – A Development Imperative, Perspective Papers (Stockholm: Global Water Partnership, 2012).

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Grey, D. and Sadoff, ‘Sink or Swim? Water Security for Growth and Development’, Water Policy 9 (2007), p. 548. Hurst, H., ‘Progress in the Study of the Hydrology of the Nile in the Last Twenty Years’, The Geographical Journal 70/5 (1927), p. 448. ———, ‘A Study of the Upper Nile’, Discover 17 (1936), p. 173. ———, Black and Simaika. ‘The Nile Basin, the Future Conservation of the Nile’. Vol. VII: Physical Department Paper no. 51 (Cairo: SOP Press, 1946), p. 11. Institute of International Law, ‘International Regulation Regarding the Use of International Watercourses for Purposes other than Navigation. Declaration of Madrid, 20 April 1911’, in Yearbook of the Institute of International Law, Madrid Session 24 (1911), p.365. International Court of Justice, Gabcikovo-Nagymaros Project (Hungary/ Slovakia), Judgment, ICJ Reports, 1997. International Law Association, ‘The Helsinki Rules on the Uses of the Waters of International Rivers’, in: Report of the 52nd Conference, Helsinki, 14–20 August (1966), pp. 484–532. ———, ‘Berlin Conference’, Water Resources Law, Fourth Report (International Law Association, 2004), p. 11. International Law Commission, Yearbook of International Law Commission 2/2 (1976), p. 160 ———, Yearbook of International Law Commission 2/1 (1980), p. 163. ———, Yearbook of International Law Commission 2/1 (1983), p. 157. Mahmoud Abu Zied, ‘Managing Turbulent Waters’, Al-Ahram Weekly Online, 447 (September 1999), http://weekly.ahram.org.eg/1999/447/spec3.htm, accessed December 2012 McIntyre, O., ‘Improving Transboundary Water Governance through the Application of Integrated Water Resources Management’, National University of Ireland, Background Paper (n.d.). Ministerial Declaration of The Hague on Water Security in the 21st Century. The Hague, The Netherlands, 2000. Ministry of Water Resources, Water Sector Development Program, Irrigation Development Programme Report (Addis Ababa: Ministry of Water Resources, 2002) Mohamed El-Sayed. ‘Dangers on the Nile’. Al-Ahram Weekly Online 995 (April 2010), http://weekly.ahram.org.eg/2010/995/eg3.htm, accessed December 2012. Nile Basin Initiative, ‘Ministers of Water Affairs End Extraordinary Meeting Over the Cooperative Framework Agreement’, Press Release, 14 April 2010, http://www. nilebasin.org/index.php?option¼com_contentandtask¼viewandid¼161and Itemid¼102, accessed December 2012. ———, ‘Agreement on the Nile River Basin Cooperative Framework Opened for Signature’, Press Release, 14 May 2010, http://www.nilebasin.org/index.php? option¼com_contentandtask¼viewandid¼165andItemid¼102, accessed December 2012. Permanent Court of International Justice, Case relating to the Territorial Jurisdiction of the International Commission of the River Oder, Seventeenth Ordinary Session, Judgment No.16, 10 September 1929. Tarlock, D., ‘Water Security, Fear Mitigation and International Water Law’, Hamline Law Review 31/3 (2008), pp. 712–16.

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The General Treaty of the Final Act of the Congress of Vienna, 9 June 1815. Tvedt, T., The River Nile in the Age of the British, Political Ecology and the Quest for Economic Power (London, New York, I.B. Tauris, 2004). United Arab Republic and Sudan Agreement for the Full Utilization of the Nile Waters, Cairo, 8 November 1959. United Nations, ‘United Nations Convention on the Law of the Non-navigational Uses of International Watercourses. Adopted by the General Assembly of the United Nations on 21 May 1997. General Assembly Resolution 51/229, annex’, Official Records of the General Assembly, Fifty-first Session Supplement No. 49 (A/51/49) (1997). UN ‘United Nations Department of Economic and Social Affairs’, World Population Prospects: The 2010 Revision, CD-ROM Edition (UN, 2011). United Nations Development Programme, Beyond Scarcity: Power, Poverty and the Global Water Crisis (New York, NY: Palgrave Macmillan, 2006). Woldetsadik, Tadesse K., International Watercourses Law in the Nile Basin: Three States at a Crossroads (New York, NY; Abingdon, Oxon: Routledge, Taylor & Francis Group, 2013). Wouters, P., Vinogradov, S. and Magsig, B.-O., ‘Water Security, Hydro-solidarity and International Law: A River Runs Through It’, Yearbook of International Environmental Law 19/1 (2008), p. 98

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The Doctrines of Sovereignty and Equitable Utilization of International Waters Under the Agreement on the Nile River Basin Cooperative Framework

Charles Okidi INTRODUCTION The doctrine of state sovereignty in international law is generally presumed to be absolute and exclusive. To facilitate practical and diplomatic intercourse, however, states are often compelled to modify approaches to exercise of sovereignty. Very particularly in Africa, as in most former colonial states, the doctrine of permanent sovereignty over natural resources has been developed and exercised alongside self-determination, whereby the exercise of both has entailed social, economic and political imperatives in accesses over various categories of natural resources. In the discussions that follow below, our focus is on international watercourses that, by their nature, are not exclusive within one state. Thus, they require that sovereignty over them be exercised differently. Issues of access and control of such waters are particularly sensitive for the lower or lowest riparians in an international watercourse. In the present case, this chapter is concerned with Egypt’s interest in the Nile, where there are nine other riparian states. The next (and first) substantive section of this chapter will therefore situate Egypt in the context of international watercourses in Africa. The following section will relate sovereignty to the control of international watercourses, pointing out that sovereignty over waters that are not exclusively confined to the jurisdiction of a state must be exercised differently. This leads to the fourth section’s discussions of the contending theories on juridical control of international waters. In the comparative and theoretical appraisal, we should identify that approach which is characterized by claim of exclusive and absolute sovereignty as not suitable for applications to international watercourses. Similarly, we shall identify acceptable theoretical approaches. The theoretical paradigm of inclusivity that will permit equitable and reasonable access and utilization of international watercourses is discussed in

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section five. It is also the application of equitable and reasonable utilization of international water courses that will offer opportunities for water security to all riparians, as discussed in section six. The concept of equitable and reasonable utilization of international waters is found in Article 4 of the Agreement on the River Nile Basin Cooperative Framework (CFA), which was opened for signature at the offices of the Nile Basin Initiative in Entebbe, Uganda, on 14 May 2010.1 The first signatories were Tanzania, Ethiopia, Uganda, Burundi, Rwanda and Kenya. The immediate temptation is to analyse the concept of equitable and reasonable utilization as such. That option, however, is unattractive partly because the Convention has been negotiated to conclusion without formal travaux pre´
paratoires. For another reason, there has been an exhaustive analysis of the concept carried out by Jerome Lipper in 1967 (Lipper 1967). Recently, Professor Charles Bourne and his discussants reviewed the concept in relation to the Draft Articles by the International Law Commission, which preceded adoption of the global framework treaty entitled the United Nations Convention on the Non-Navigational Uses of International Water courses adopted in 1997 (Bourne 1992).2 Instead of belabouring a definition and discussion of the concept of equitable and reasonable utilization of international waters, it was found necessary to place the Nile in the context of African international waters. It should be possible then to establish suitable alternative sources, distribution and abundance of water for thirsty Nile riparians. A broad review should lead us to identify a number of sources that should be fairly or equitably treated in the distribution of Africa’s water resources rather than a lonely country seeking sympathy from a number of upper riparians in a single river. THE NILE AND EGYPT IN AN AFRICAN INTERNATIONAL WATERS CONTEXT The critical issue regarding the Nile waters is the quantitative apportionment of water, which is what upsets Egypt and Sudan, and has led to their refusal to sign the CFA. Of the several factors to consider in equitable and reasonable utilization of Nile Waters, all of which are equal or of comparable significance, it may therefore be interesting to consider the availability of alternative sources of water because this places Egypt and the Nile within a context. The most critical consideration, under sub-paragraph 2(g) of Article 4, is the availability of alternatives. Given that the scarcity that leads to the quest for alternatives is the limited quantity of Nile waters, one needs to look for alternatives. Obviously it is essential that to actualize the principle of equitable utilization fully, this chapter must establish the availability of waters, comparable to that of the Nile, in other rivers or basins. We should caution, too, that some of these possible sources may at present seem

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unrealistic, but they are nevertheless options that may be considered in the future under dire circumstances. It is well known that there are 54 river basins in Africa that are international. Out of that total, 11 rivers drain or traverse four or more states, with the largest number of states drained by any one river being 10 (these data were assembled by the author and published in Okidi (1988)). Nineteen rivers drain more than 100,000 km2. In all, the area traversed by international rivers and lakes in Africa is about half of the total area of the continent. According to available hydrological data, Africa has abundant water flowing down the rivers as above, estimated as between 3,400 billion and 4,600 billion m3, of which only 90 billion m3 (or 2 per cent of surface and ground waters) is actually used. In other words, between 95 and 98 per cent of Africa’s international waters drain to oceans (Okidi 1988). But the waters of Africa are also very highly unevenly distributed, by season and geographic areas. It is important to note that more than 50 per cent of the total water resources of Africa, as outlined above (1,325 billion m3) are carried in one river basin, namely the Congo/Zaire Basin. Another 25 per cent are in seven other rivers, namely the Niger (200 billion m3), the Ogooue in Gabon (149 billion m3), the Zambezi (104 billion m3), the Nile (84 billion m3) the Sanaga, Comeroon (165 billion m3) the Chari-Logone in Chad (43 billion m3), and the Volta (40 billion m3). The foregoing statistics suggest a colossal amount of water is available on African continent, even if it is not evenly distributed. The single largest consumer of water is irrigated agriculture, for which Egypt and Sudan are well known. It is about this activity that the two countries are worried regarding possible competition for Nile waters in the upper riparians. Statistics over the past few years indicate (Krishnamurthy 2009) that only 1.8 per cent of arable land in Africa is irrigated, compared to 2.8 per cent in Asia, which suggests that the demand over that large amount of water is still low. The only other factor that may increase irrigated agriculture in Africa in the future is frequent drought. Episodes of severe drought have hit Africa in recent years as follows: 1918, 1927, 1939, 1949, 1955, 1972–4 and 1996. These frequent but irregular occurrences affect agricultural and industrial development in African countries. At present there is a core of African countries that rely on water imported through different rivers in the magnitude of over 30 per cent. For instance Egypt imports 97 per cent, Mauritania 95 per cent, Botswana 95 per cent, Gambia 86 per cent, Sudan 77 per cent, Niger 68 per cent and Senegal 34 per cent. Presumably, with a combination of good water husbandry and major transfers of water from areas of abundance to areas of scarcity, there will be enough water to sustain life in Africa. Such transfers would, of necessity, however, entail major inter-basin transfers of unprecedented proportions. As is a general rule, states are strict about their sovereign prerogatives. They will share water within or traversing their territories under special circumstances,

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such as within the context of international agreements over shared water courses, in the exercise of their sovereignty as is anticipated under Article 6 of the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) signed in Windhoek on 7 August 2000 or the CFA. Only under exceptional circumstances would states consent to inter-basin transfer, but such arrangements can be negotiated in the near future, even if with high contention. With the consent of governments, and application of hydrological technologies, such major transfers are possible. Note, for instance, that in times of extreme water shortage, the South African government negotiated with the government of Botswana to allow for transfer of water from the Zambezi to feed their agriculture. The Zambezi Plan entailed the construction of a weir at the Zambezi–Chobe confluence, near Katima Mulilo, and Victoria Falls and the transfer of the elevated flow to southern Botswana and the Rand (Okidi 1994). At that point, water was to be lifted by pumping stations across the escarpments to the Vaal River system, a total distance of 800 km, at a total cost of 9,000 million Rands. The Plan was to deliver 2,400 million m3 of water per year, which was 133 per cent more than the amount of water available to South Africa at that time in the early 1990s. Changes in the polities of South Africa, with the end of Apartheid in 1994, altered the politics of water in SADC as it gave way to the Protocol on Shared Watercourse Systems in the SADC region signed in Johannesburg on 28 August 1995. The need for water in Botswana and South Africa that necessitated the Chobe–Vaal project could then be approached differently. For our present purposes, it is sufficient as an example of how far governments can go in designing remedies to water scarcity, given the ill distribution of waters of different basins. It is unlikely that the South African government could go that far in planning the transfer of water via the Chobe project without at least tacit or express agreement with the Botswana government. In the end it may well be that South Africa’s water shortage was addressed by the Lesotho Highlands Water Project (Okidi 1994; see the data in Okidi (1988: 650)), which was initially very highly contentious, but eventually resolved through negotiation and the consent of the governments concerned. Be that as it may, the Chobe–Vaal water project is an example of the extent to which inter-basin transfer of water can facilitate water availability to countries suffering scarcity and thus dissipate the possible outbreak of hostility. To date there has been no inter-basin transfer of water from the Congo/Zaire River, which has about one half of Africa’s water reserves. Historically, however, there is analogy in the willingness of Congo to export hydroelectricity from the massive power reserve from Inger Dam to link with the grid from Aswan Dam in Egypt, as was proposed through Undugu initiative (for a discussion on the Undugu initiative, see Mekonnen (2010: 421–6)).3 Given the negotiation and eventual consent of the governments concerned, the abundant waters in the Congo/Zaire River

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could be transferred to the White Nile in agreed quantities in order to stabilize the abundance of the Nile’s waters. What is clear, though, is that whether water deficit or scarcity is addressed through inter- or intra-basin transfer, the determining factor is the consent of the governments concerned as sovereign states. SOVEREIGNTY AND THE CONTROL OF INTERNATIONAL WATERS Before discussions on the principle of equitable and reasonable utilization of international waters, it is important to recognize that while such waters are located in a country as boundary catchments or flow through a given country, they are subject to sovereign rights of that country. This is within the meaning of the doctrine of Permanent Sovereignty over Natural Resources enunciated in United Nations General Assembly Resolution 1803 (XVII) of 14 December 1962 and was a culmination of principles related to self-determination, especially in South America, and later in Africa. It will be recalled that the resolution was in fact adopted in the context of the struggle for economic and political self-determination when developing countries, particularly from South America, were fencing off their natural resources to prevent an economic onslaught by the United States and Western European countries. The inextricable nexus between self-determination and permanent sovereignty over natural resources was explicitly recognized in the Case concerning East Timor (Portugal v. Australia; International Court of Justice 1995. See for general comments Okowa (2009)) where economic and political aspects were specifically stated. Natural resources were, in this context, addressed broadly in a manner that includes hard minerals and, conceivably, shared watercourses. Underlying the concept of selfdetermination and permanent sovereignty is the idea that the natural resources, including water, are to be utilized for the betterment of the national population. The catch, however, is that the water resources are moving and traversing national boundaries or are in shared watercourses. These natural resources must therefore be utilized equitably for the relevant populations and in a manner that does not cause or permit harm beyond the limits of national jurisdiction. In other words, permanent sovereignty must be exercised differently from any notion of exclusivity. This was expressed succinctly in Stockholm Principle 21 and Rio Principle 2 to the effect that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction.

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The doctrine of sovereignty over natural resources on territorial land, and stewardship over them by the national government, was extended to coastal areas by United Nations General Assembly Resolution 3016 (XXVII) on Permanent Sovereignty Over Natural Resources of Developing Countries. This resolution was adopted at the time when the exclusive economic zone was becoming increasingly apparent and developing countries that were principal proponent thereof wanted the principles in Resolution 1803 of 1962 to apply to the area of the sea to be newly-acquired. There is an obvious difference, though, between the exercise of permanent sovereignty over the mineral resources and corresponding sovereignty over watercourses that traverse boundaries. Eventually, the UN Convention on the Law of the Sea adopted, in Article 56 (1), a provision recognizing sovereign rights in the following terms: 1. In the exclusive economic zone, the coastal State has (a) Sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources. Whether living or non-living. In other words, states may opt within the framework of a treaty to modify the scope of powers they exercise either on the land territory or other areas where such powers are modified. In such instances, states may permit third parties to enjoy access to and/or a control of utilization of the given resources. That is consent based on treaty conditions and obligations. Sir Gerald Fitzmaurice summarized the condition as follows: ‘Consent to a treaty makes a the treaty binding so that once the treaty is concluded the parties to it are then bound and are obliged to carry it out whether they continue to like it or not – in other words, the fundamental principle of pacta sunt servanda. No State is obliged to become party to a treaty – obligations need not be assumed - but, once assumed are binding (Fitzmaurice 1957).’4 States may, alternatively, accept to be bound by a rule of customary international law and practice. This may, for instance, be assumed under the doctrine of opinio juris sive necessitates (for elaborate discussion of the concept of custom, see D’Amato (1971), especially pp. 56–72). In this context, Professor McCaffrey has argued that claim of exclusive right over international water is unacceptable in law (see McCaffrey 1996). In either case, the states concerned have not surrendered their sovereignty. They are, in fact, exercising sovereignty. It is fundamental that only the sovereign may enter into a treaty either directly or by authorizing its emissary, by explicit credentials, to negotiate and sign on its behalf. Similarly, the sovereign or his assignee may indicate acceptance of customary rule or practice. The national government may, on behalf of its people, exercise permanent sovereignty over natural resources, including water resources that are located in its territory or traversing through an international

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watercourse. Then we must quickly recall the declaration in Principle 21 from Stockholm and Principle 2 from Rio, both quoted earlier, which enjoin states to exercise their sovereign rights in the utilization of such resources for national development but to ensure that such conduct of sovereign rights does not cause harm to other states or areas beyond national jurisdiction. It is reference to ‘areas beyond national jurisdiction’ that extends the statement, which actually articulates the English-language interpretation of the age-old Latin maxim expressed as sic utere tuo ut alienum non laedas. This principle has, generally been associated with the decision in the Trail Smelter arbitration case (for details see United Nations (UN, 1995, 1938 [1938, 1941])),5 which arose from a dispute between the United States and Canada. The United States had complained about sulphur dioxide fumes released from a smelting firm at Trail in Canada. The precipitation of the fumes, in the form of acid rain, precipitated on the territory of the United States and destroyed crops in Columbia Valley in the State of Washington. Although the facts of the case are not directly related to international waters, the final decision, enunciating what is accepted as a general principle of international law, is relevant to the present discussion: The Tribunal, therefore, finds that the above decisions taken as a whole, constitute an adequate basis for its conclusions, namely that, under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

The decision is therefore clearly relevant to the present discussion, to the effect that in the course of the exercise of sovereignty over international water resources, the riparian state has a duty not to cause significant harm, a rule that is stipulated in Article 7 of the 1997 UN Convention on international watercourses. It is to be emphasized, too, that the source of legal validity of the maxim sic utere tuo in the Trail Smelter case is not necessarily in this particular arbitration. It should be observed that liability was already accepted in the bilateral agreement for the arbitration. The questions addressed to the tribunal were to determine when it was that the injury was caused and to decide on the scope of compensation to be paid (see a detailed discussion of that angle to the decision in Rubin (1970)). The fact that the rule of sic utere tuo is recognized by the tribunal as a rule of international law beyond the Trail Smelter arbitration adds significance to the analogy with use of international waters. After discussing the Trail Smelter arbitration, Professor L.F.E. Goldie adds that of equal significance to the sic utere tuo rule is the principle of

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good neighbourliness (Goldie 1962: 670, 687–91 & 1971),6 which he writes ‘is an emerging principle of international law with many transnational qualities’. Goldie elaborates that the principle of good neighbourliness prevents states from sticking to any rigid application of sovereignty by requiring respect of the rights of others to participate in a social process through values of respect and the recognition of fundamental needs of others. The foregoing discussions explain the doctrine of sovereignty in fact and practice. It is even more important that sovereignty, although an expression of statehood, is not a rigid barrier against collaboration among states in practice. Rather, that sovereignty is exercised to promote peaceful existence between and among states (see these comments in by Professor Ladan 2007: 81). In addition, through exercise of sovereignty, states should promote constructive cooperation and collaboration on matters of common interest, such as management of international waters. CONTENDING THEORIES Now that we have adopted a flexible interpretation of the theory and application of the doctrine of sovereignty, it is imperative that this study examines alternate theories governing the control of international waters flowing through the respective territories. Je ´ro ˆ me Lipper (see Lipper 1967: 18–40) has discussed the four theories applied by co-riparians in reasonable detail, rendering an in-depth treatment in the present chapter superfluous. We shall therefore only offer a brief presentation here for completeness. Absolute territorial integrity This is the doctrine under which a lower riparian asserts the right to demand uninterrupted and natural flow of water coming from upstream. The riparian making such a claim does not accept an obligation to permit flow of the same water downstream. Such a claim, though unreasonable, may occur to the lowest riparian such as Nigeria for the Niger River or Mozambique for the Zambezi. In the case of Egypt and the Nile, Jerome Lipper tells us that such a claim was made by Egypt to the 1925 Commission that was seeking to resolve water conflict with Sudan (see Lipper 1967: 18). It should be observed, though, that Britain has no intension of infringing on Egypt’s historical right to use the water for irrigation, even though it also wanted to protect the interests of Sudan. Recall that Spain made such a claim when it objected to the French hydroelectric dam on the River Carol. The claim was referred to the Lake Lanoux arbitration, which rejected the rigid and extreme claim. As was observed earlier, a state may indeed seek access to water resources but the claim must be reasonable.

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Absolute territorial sovereignty Under this doctrine, an upper riparian maintains the position that as a sovereign state it is free to utilize the water on its territory and rejects any suggestion of obligation to allow any flow to a downstream riparian. Discussions above have rejected such an absolute exercise of sovereignty. In the case of the Nile waters, the flow has always flowed down through Egypt and Sudan without any significant usage. That was simply because the countries under British rule never had any capacity of their own for a significant level of consumptive use. Progressively, Kenya, Ethiopia and Tanzania will build capacity to exploit water for consumptive use, especially in irrigation. Besides, they will, through evolution of the CFA, finally resolve the dispute over existing agreements. In that case, they will definitely need a fair share to meet their planned developments in agriculture. In history, the best known example of a claim to absolute sovereignty was in 1890 when the United States Department of Justice, under Attorney General Judson Harmon, issued a statement to the effect that the US was not under obligation to allow the waters of the Rio Grande to flow to Mexico (McCaffrey 1996). There may be other instances where the doctrine has been invoked, but in the case of the Nile, this author is not aware of instances where it has been asserted, even though as a matter of law Kenya, Tanzania and Uganda do not subscribe to any of the treaties signed by Britain with Egypt. Limited territorial sovereignty This doctrine is consistent with the flexible interpretation of the doctrine of sovereignty as discussed above. Its theoretical basis proposes that while the riparians of any international waters recognize the sovereign right over the waters flowing through the territory of any state, they nevertheless recognize that each of the riparians should be free to utilize a fair, reasonable and equitable share for their country-specific needs and projects. In addition, any related treaty must spell out systems for settlement of disputes. It is for this reason that this discussion will shortly dwell on the provisions for equitable and reasonable utilization under the Agreement on the Nile River Basin CFA. This doctrine is intermediate and flexible, allowing for sub-basins that are amenable to detailed collaboration, as in the case of Kagera Basin7 or perhaps the Blue Nile to develop and adopt an agreement involving interested states. Community of riparian states In this instance, the riparians of a given basin agree to joint planning, financing and implementation of projects that utilize the waters of a basin. Mekong Delta countries may be an early example. In Africa, an organization

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on the Senegal Basin known as Organisation pour la Mise en valeur du Fleuve Se´ne ´gal (OMVS) adopted by Mali, Mauritania and Senegal in 1972 is an case in point (See Okidi 1987). Through the agreement they planned for construction of two dams: Manantali in Mali and Diama in Senegal. While Manantali focused on irrigation and hydroelectric power generation, Diama was primarily to prevent saltwater intrusion up stream. Navigation and irrigation were parts of the OMVS collective planning and implementation. The OMVS initiatives were moved to implementation and should therefore interest a student of the community of riparian states to evaluate the experience. The most extensive experience with planning for community of riparian states was actually under the Kagera Basin Organization (KBO) initiated under a treaty adopted by Burundi, Rwanda and Tanzania at Rusumo on 24 August 1977 (Okidi 1986). Uganda joined the KBO later, in May 1981. Between 1979 and 1982, the KBO initiated several projects and resource mobilization initiatives, culminating in five volumes of projects designed for joint implementation. Let us enumerate the key projects for the ‘Development of the Kagera Basin’ sponsored by the UN Development Programme that together covered key development priority areas, namely: rain-fed agriculture; irrigated agriculture; energy; and transport. The final volume covered industry, health, and environment. All the reports were dated February 1972 and produced by the KBO at its office in Kigali, Rwanda. Actual implementation of the projects was frustrated initially by ideological disparity between Tanzania and the other three countries. Later, the political upheaval in the region, particularly in Rwanda, halted the initiatives. It should be observed first that well-prepared projects, including irrigated agriculture and energy, can and probably will be reignited and implemented. Second, at no point did any of the riparians, particularly Egypt and Sudan, complain that the planned activities in the Kagera Basin – including irrigated agriculture – endangered their interests in the Nile waters. EQUITABLE AND REASONABLE UTILIZATION UNDER THE NILE TREATY The Nile Treaty referred to here is the Agreement on the River Nile Basin CFA of 14 May 2010. It makes provision for the principle of equitable and reasonable utilization in Article 4. One author has argued that the principle of equitable and reasonable utilization is the core of the law relating to the nonnavigational uses of international water courses (see analysis by Marjon 1997: 80, 83) because it is structured on several elements that balance a state’s sovereign right to use waters in its territory with provision to accommodate the rights of other riparian states on the basis of equity. The principle gained popularity through publication of the Helsinki Rules, which were included in the report of the 52nd Conference of

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International Law Association in Helsinki on 20 August 1966 (Garretson et al. 1967, Caponera 1980).8 In the Helsinki Rules, the provision on equitable and reasonable utilization is stipulated under Article IV, while elaboration of what constitutes equitable and reasonable conditions is provided in Article V. The substance of these two articles has since been adopted in modern treaties with only minor variations. Similar provisions have been provided in Articles 5 and 6 of the Convention Law of the NonNavigational Uses of International Watercourses, developed and adopted under the aegis of the United Nations on 21 May 1997. It is worth noting that the International Law Commission was first commissioned to work on this subject in 1974. It finally completed the first full draft in 1994 paving way for preparation of the Convention. There seems to be no doubt that the rule of equitable and reasonable use of transboundary water resources is accepted by international law. Commenting on the Draft Articles prepared by International Law Commission, Professor Charles Bourne observed candidly: In the case of equitable utilization, there is ample authority for the proposition that is now a rule of customary international law. This was recognized by the Special Rapporteurs themselves. Judge Schwebel, after an extensive survey of the authorities and practice of States, concluded that ‘virtually all commentators writing in the field sustain the existence of equitable utilization as a rule of general international law where the system States have conflicting uses or plans for the development of their shared water resources’ and that their international community of States had accepted the rule. Judge Evensen, too, regarded the inclusion of the equitable utilization principle in this draft articles and being merely a codification of a well established principle of customary international law. So did Professor McCaffrey, who stated that there was ‘overwhelming support for the doctrine... .. as a general, guiding principle of law for the determination of the rights’ of watercourse States. Their position on this point is sound and there is no need to pursue it further’ (footnotes omitted; Bourne 1992: 66, 82–3).

The message here is that the provision on equitable and reasonable utilization went through a long process of deliberation before it was finally adopted in Article 4 of the CFA in May 2010.9 Paragraph 1, which expresses the general rights and obligation for equitable and reasonable utilization, deserves to be quoted in full here: Nile Basin States shall, in their respective territories utilize water resources of River Nile System in an equitable and reasonable manner. In particular, those water resources shall be used and developed by Nile Basin States with a view to attaining optimal and sustainable utilization there-from, taking into account the interests of the Basin States concerned, consistent with adequate protection of those water resources. Each Basin State is entitled to an equitable and

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reasonable share in the beneficial uses of water resources of the River Nile System and the Nile River Basin.

Paragraph 2 outlines the factors that states shall take into account in determining whether the water utilization is indeed equitable and reasonable. This is definitely problematic because, first, reference is made to shall as a mandatory formulation, yet the numbers are openended. The mandatory ‘shall’ suggests that the list is either exhaustive or the list is both selective and definite. Instead, all relevant factors and circumstances including but not limited to the following [emphasis added]: a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of natural character; b) The social and economic needs of the Basin States concerned; c) The population dependent on the water resources in each Basin State; d) The effects of the uses of the water resources in one Basin State on other Basin States; e) Existing and potential uses of the water resources f) Conservation, protection, development and economy of use of the water resources and the costs of measures taken to that effect; g) The availability of alternatives, of comparable value, to a particular planned or existing use; h) The contribution of each Basin State to the waters of the Nile River System; i) The extent and proportion of the drainage area in the territory of each basin state. This elastic provision, leaving discretion to both the state proposing a project and whoever is a challenger, seems inconsistent with the mandatory requirement for factors to consider. The number of relevant factors to take into account also varies. The Helsinki Rules lists 11 factors, while Article 6 the 1997 UN Convention lists seven factors. The Nile Agreement, in contrast, has listed nine factors. Granted the factors are not contradictory, but this diversity will inevitably lead to interpretations that lack harmony. It may not matter for the Helsinki Rules but it might for implementation of the 1997 global Convention and the Nile Agreement, which will be applicable regionally in Africa. The fact that the list of factors in Article 4(2) is open means that the state is set for conflicts and obstructionism. A proponent of a project in a country could suffer an indefinite range of factors, being proposed by an opposing state or its agent. It is interesting, though, that the open-ended formulation was adopted by the Helsinki Rules and codified in the 1997 UN Convention, and is now under the Nile’s CFA. A similar formulation should be used elsewhere. Be that as it may, consideration should, nevertheless, be given to factors (a) to (i) provided in Article 4(2) of the Nile Agreement of 2010.

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Consideration of the factors It has been pointed out earlier that the principle of equitable and reasonable utilization is at the core of peaceful and satisfactory management transboundary water resources. The key to the realization of this peaceful and satisfactory management is the way the factors in Article 4(2) are implemented. The strategies and process must give confidence to each and all the riparians that any change brought about by the new agreement will not jeopardize the interests that seem relatively secure under the status quo. There are two considerations to keep in mind as this discussion turns to the facets that characterize the factors. First, as the formulation in Article 4(2) is presented, the list of possible factors is limitless because the reference is ‘including but not limited to the following’. To be practical, therefore, one is compelled to select only a few representative factors, illustrating the spirit of the treaty provision. Second, the factors, as stated in the text, are largely technical. A legal and policy paper must, perforce, give only indications, in summary form, of what teams of technical experts would prepare and subject to evaluation by the Technical Advisory Committee and the Sectoral Advisory Committee anticipated under Articles 25 and 27. Ultimately, of course, subsequent policy evaluation and approval will be the preserve of the Council of Ministers operating in accordance with Articles 22 to 24. In other words, it is the thoroughness with which these institutions operate that will imbue confidence in the parties, who are riparians, that their interests will be protected, especially on matters of water security for all. If one considers Article 4(2), it comprises diverse factors, including geographic, hydrological, hydrographic, climatic, ecological as well as other factors of natural character, including the socioeconomic needs of the Basin states. Coverage is broad as it includes the population dependent on the water in the Basin, availability of alternatives, contribution of each Basin state to the waters of the Nile and proportion of the drainage area in the territory of the Basin states. For Egypt, for instance, it is not only the lowest riparian that, implicitly, is at the mercy of the upper ones but also a desert state. As was pointed out earlier, Egypt imports approximately 97 per cent of the water it uses. For this reason, Egypt and Sudan, which imports 77 per cent of its water, deserve sympathetic consideration in the apportionment of water resources. By the same token, due consideration will be given upper riparians such as Ethiopia, the Kagera Basin countries and Kenya, all of which have favourable climatic considerations. The social and economic factors will recognize the total dependence of Egypt on imported water for its irrigated agriculture and social services. Over the centuries Egypt has developed applicable water laws (see Caponera 1978) and mature infrastructure. This is in stark contrast to the situation in upper the riparian states, principally, Kenyan and Tanzania, and to some extent Uganda. The same situation applies to Rwanda and Burundi as Kagera Basin states. These upper riparians cannot easily develop without

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embracing the irrigated agriculture on which their population (factor (c)) depends. Note must be taken of their rapidly growing populations. One study has estimated Kenya’s area within Lake Victoria Basin to be approximately 200,000 hectares and another half of that by inter-basin transfer in Kerio Valley (Mwiandi 2010: 93, 110–15). Tanzania’s irrigable area in Vembere Steppe alone is approximately 230,000 hectares (Okidi 1980: 395, 441). It is important to note that the prospects for this Tanzanian irrigation were identified by Germans before World War I but have not been implemented. This is an indicator of the benign neglect of socioeconomic opportunities for the territory during the colonial era, which Tanzania must seek to rectify. In Uganda, no actual estimates of possible irrigation were made, indicating total neglect of irrigated agriculture. The water that may be included in these considerations under the Comprehensive Framework Agreement must be waters already in the Nile system. Waters in the internal rivers in Kenya, Tanzania, Rwanda, Burundi or Uganda are not part of international water resources, even though left alone they replenish the international water resources. The requirement for honouring existing and potential uses is likely to be contentious. While consideration of potential uses, a matter for the future, may be simple, the issue of existing uses is likely to be controversial. Those who claim prior appropriation of given quantities of water will often object to any proposal for downward adjustment. In a way, that should be totally understandable because the construction of water works that go with water use often entail expensive engineering works with long-term projection. In the context of Nile waters, this may be the factor that emanated from the 1929 and 1959 treaties to which Egypt and Sudan are parties. Upper riparians, namely Kenya, Tanzania and Uganda, have firmly rejected the treaties on the basis of the doctrine of res inter alias acta and pacta teriis res naucent nec prosunt (see Ngowi 2010: 57, 61–2, Okidi 1994: 321, 328–9, Seaton & Maliti 1973). In other words, treaties only bind parties and treaties confer neither rights nor obligations on third parties. Since there is no reference to either of the treaties in the context of Article 4, there is no need to belabour the issue of past treaties. However, it is pertinent to give, as an example of existing uses, the amounts of water given in the treaties: these were 55.5 billion m3 for Egypt and 18 billion m3 per year for Sudan. These happen to be the volumetric quantities provided under 1929 and 1959 treaties and are still demanded by the two lowest riparians but are not acceptable to the upper riparians (Garretson et al. 1967: 288). These amounts were not included in the Framework Agreement. Those familiar with the negotiation process, however, say that the figures are behind the provision on water security fiercely adhered to by Egypt and Sudan. When the time comes to consider these volumes of water in the full context of Nile waters, the Framework Agreement hydrologist will explain what proportions of the total Nile waters is being demanded by Egypt and/or Sudan as the case may be. For the purposes of this chapter, the final

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question relating to the volumetric amount demanded is: how will it relate to facts of population, irrigated agriculture and industrialization in Egypt over time? Would it not have been wiser for Egypt and Sudan to opt for a certain proportion of the total volume of Nile waters flowing past Khartoum? In any event, the position has remained firm in the upper riparians that obligations under past treaties do not bind Kenya, Tanzania and Uganda. Construction of what has been named the Grand Ethiopian Renaissance Dam on the Blue Nile in Ethiopia may be considered under the rubric of conservation and protection of the waters, promoting equitable and reasonable utilization. According to Daniel Berhane (Berhane 2011, Cascao & Elisa 2008; see also in Mageed (1994)), the Dam is located 20–40 km from the Ethiopia–Sudan border and is expected to generate up to 6,000 MW. With a capacity almost twice the size of Lake Tsana, the Dam will hold 69 billion m3 at its peak, which should be a significant storage capacity. Since Ethiopia will use the Dam mostly for generating hydroelectric power, leaving the bulk of the water to reach the lower riparians for irrigation, it will likely perform a stabilizing and regularizing function on the flow of the Blue Nile waters. One source (Garretson et al. 1967: 258) suggests that the peak and low seasons and the corresponding massive flows are in April to September and low for the rest of the year. No wonder, then, that Egypt and Sudan have held discussions with Ethiopia over the Dam. A leading constraint against such a project could arguably be expertise and technology. But it has been argued elsewhere that the Republic of South Africa and Egypt are comparable (Okidi 1994: 18–28). The implication of such a project for water security in Egypt and Sudan would be so immense that it is worth initiating as part of Nile Basin Initiative or other initiatives. It is worth the investment if it will help ease tension arising from feelings of insecurity over quantities of water. A second source of water to ease tension and anxiety in the Basin is the possible existence of massive groundwater reserves known to exist under the territories of Chad, Sudan and Egypt (Hayton 1989).10 Unilaterally, Libya decided to construct what was named the ‘Great Manmade River’ to carry water over 1,200 miles from Kufra Oasis to tap the waters of the aquifer to serve Libya. Properly managed, the aquifer could easily be an additional and alternative source of water to dissipate anxiety of Egypt and Sudan and increase water security. The second section of this chapter presented diverse regions and basins with abundant freshwater resources. Two examples of where alternative water resources could be source to augment the Nile waters and promote water security have been given above. Sourcing those alternatives might not be necessary, however; the Nile waters might be sufficient for a long time to come. Should additional alternatives be necessary, there will be sufficient expertise to design trans-basin transfers well beyond the two examples given above. The contribution of each Basin state to the waters of

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the River Nile system and the extent and proportion of the drainage area in the territory of each Basin state are easily discernible physical facts that can be determined in each case as issues arise. Water security Water security is defined in Article 2(f) as ‘the right of all the Nile Basin States to reliable access to and use of the River Nile System for health, agriculture, livelihoods production and environment’, in which case the entire discussion on equitable and reasonable utilization strives to make a formidable case for water security. All the factors under Article 4(2) to be considered in determining an exercise in equitable and reasonable utilization are, in fact, a checklist to ensure that every riparian state receives its fair share (Munro 1997)11 of the water resources in all circumstances. Water security, as defined above, does not fall directly under the rubric of equitable and reasonable utilization in Article 4 of the CFA. It seems controversy arose over the issue of water security in Article 14 and that it was the cause of breakup of the negotiation. As the issue of water security has featured in equitable utilization, this chapter ought to discuss it in relation to equitable utilization. It is interesting, however, to read the substantive provision on ‘water security’ in Article 14 where drafters of the text stated, properly, that provisions of Articles 4 and 5 recognize the importance of water security to each riparian. Indeed, in discussing the principle of equitable utilization in Article 4, it was pointed out that realization of the factors therein could lead to water security among the riparians. Accordingly, at the end of the Agreement, Article 14 submits that the ‘Nile Basin States agree in the spirit of cooperation (a) to work together to ensure that all states achieve and sustain water security’. The text of the Agreement, which is available to this author, does not give emphasis to Article 14(b). Instead it says in brackets that ‘the unresolved Article 14(b) is annexed to be resolved by the River Nile Basin Commission within six months of its establishment’. There is no paragraph (c). Zeleke Mekonnen, a commentator who seems to have had access to inside information, states that the Nile Council of Ministers (Nile-COM) could not make headway in their negotiations because the riparians had rejected an amendment to Article 14(b) that had been introduced by Egypt and Sudan. Operative paragraphs to Article 14 would read as follows:12 (a) to work together to ensure that all states achieve and sustain water security Then the paragraph which was to be contentious read: (b) Not significantly affect the water security of any of the Nile Basin States

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Presumably, a provision prescribing affective water security is understood to go beyond or have a different effect to ‘prevent the causing of significant harm’ in Article 5. There did not seem to be any objection to the latter. An insight into reasons for objection to the expression of ‘water security’ is ascertained in the vicious attack on the phrase by Zeleke Mekonnen, where he said that ‘[T]his fateful decision to introduce the non-legal concept of ‘‘water security’’ which would, practically mean anything a riparian country wanted it to mean has been justified as an ingenious solution to the thorny issue of existing treaties’.13 Mekonnen’s statement is, however, misleading because text of the Agreement states clearly that water security means ‘the right of all basin states to reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment’. It is highly arguable whether the expression of ‘water security’ could be dismissed as non-legal. A phrase used in a legal text is often given its definition for the purposes of that legal text. In that sense ‘water security’ is given its meaning under Article 2(f) and there is nothing to say that such a ‘use of terms’ was objectionable. This discussion should also borrow from the way the principle of equitable utilization has been adopted from the Law Commission, in the 1997 UN Convention and in the Comprehensive Framework Agreement. Attempts to find genesis of the principle have been made outside the Treaty text rather than in the Agreement itself. In the end the principle is more widely known by the ‘all the relevant factors and circumstance’ that characterize it, indefinite as they are, rather than a concise legal definition. It is possible to provide a set of conditions that characterize ‘water security’ so that the agreement can proceed if that is all Egypt and Sudan want, and in good faith. To the extent that Article 14(b) would mean entrenchment of the water rights under the 1929 and 1959 Nile Water Agreements without explicitly saying so in the text would be objectionable. CONCLUSION This chapter confirms that the principle of equitable and reasonable utilization is a core concept and essential to strategies for the peaceful management of international water resources. A definition of the principle is clearly not essential for its application. Instead, guidance is available from the relevant factors that in the present case number nine, as listed in Article 4(2). The factors give the principle of equitable utilization its flexibility, which lead to reasonable benefits for all ripariam states. That, then, is the foundation of the flexible exercise of sovereignty and removal of its original rigid conception. All the riparians are led to acknowledge that agreement to accept the terms of the Treaty are truly an exercise of, rather than a surrendering, of sovereignty.

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Among the factors to consider in the implementation of the principle, the idea of examining the availability of alternative sources of water led the discussion ‘outside the box’ of Nile water resources. Within the Nile Basin the quantities of water are fixed, albeit with seasonal variations. Examination of waters from other drainage basins and the possibility of inter-basin transfer will probably ease the anxiety of Egypt and deflect attention from the discredited argumentum ad baculum; the simplistic view that if the White Nile countries do not let water flow down in certain quantities allocated under obsolete and defunct old treaties, certain countries will go to war. Flexibility of thought and alternatives has allowed for the Ethiopian decision to construct the Grand Renaissance Dam, which will now regulate the flow of 80–90 per cent of the water going past Khartoum. Storage of this large volume of water by the Dam leading to a regularized flow will give a great deal of confidence to Egypt and Sudan. It is an enormously positive development that Egypt, Ethiopia and Sudan have agreed to work together. This increases the chances of unanimous acceptance of the new Treaty on the Nile. NOTES 1 Unpublished concept note prepared by Nile Basin Initiative to summarize progress and the way forward on the CFA negotiations, obtained from the secretariat in Entebbe. 2 See also commentaries in the same journal by Alberto Szekely, Johan Lammers and Gunther Handl – pp. 93–142. 3 This writer wrote on the power transfer for Undugu from Inge to the Aswan system. 4 In the case of treaties, the modes and procedures for the expression of consent to be bound by a treaty are clearly spelled out under 1969 Vienna Convention on the Law of Treaties. See some discussion in Bolintineanu (1974). 5 See Part III of the Decision in ibid. Emphasis on the ‘Serious Consequence’ and ‘Clear and Convincing Evidence’, it is believed, is simply to imply the general rule of lex deminimis or that law will not concern itself with trivia. 6 Leiden A.W. Sijthoff (1972) pp. 104, 129. Professor Goldie once director of International Legal Studies at Syracause University College of Law, says that the concept was developed in another article entitled ‘Special Regimes and Preemptive Activities in International Law’. 7 Agreement on the KBO is discussed briefly below. 8 Full text, with commentaries, are reprinted in Garretson et al. (1967). The text alone has been reprinted, without commentaries, in Caponera (1980), where Equitable and Reasonable Utilization is in Articles IV and V. 9 Adopted at Entebbe, Uganda on 14 May 2010. 10 There was once widespread publicity about this aquifer. Unfortunately this writer did not save it. The present information is from Hayton (1989: 663, 675).

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11 The Principle of ‘fair share’ was developed in a paper seeking to encourage equitable access and utilization of water in Africa at all time. See Munro (1997) after an initial version entitled ‘The Fair Share Strategy for Sustainable Water Development in Africa’ by the same author, prepared for United Nations Environment Programme in May 1997. 12 Full text of the Agreement can be accessed at: https://mail.google.com/ mailu/0/?ui52&ik563074afgb&view5pt&. See discussions in Mekonnen, 2010: 421, 428. 13 See Article 2(f).

REFERENCES Berhane, Daniel, ‘Facts on the Grand Millennium Dam’, 11 April 2011, available at https://mail.google.com/mail/?ui¼29tik¼630374af9brview¼ptrsearchp.l Bolintineanu, Alexandru, ‘Expression of Consent to be bound by a Treaty in the Light of the 1969 Vienna Convention’, American Journal of International Law 68/4 (1974), pp. 672–86. Bourne, Charles B., ‘The International Law Commissions Draft Articles on the Law of International Watercourses: Principles and Planned Measures’, Colorado Journal of International Environmental Law and Policy 32/1 (1992), pp. 65–92. D’Amato, Anthony, The Concept of Custom in International Law (Cornell University Press, 1971). Caponera, D.A., ‘Water Laws in Hydraulic Civilizations’ in Ulmen, G.L. (ed.), Society and History (The Hague: Mouton Publishers 1978), pp. 91–106. Caponera, D.A. (ed.), The Law of International Water Resources (Rome: Food and Agriculture Organization of the United Nations, 1980) pp. 293–300. Cascao, The and Elisa, Ana, ‘Legal Deadlock in the Nile River Basin – From Conflict to Negotiation’, The Reporter, 1 December 2008, pp. 1–5. Fitzmaurice, Sir Gerald, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, Recueil des Cours 2 (1957), p. 92. Garretson, A.H., Hayton, R.D. and Olmstead, R.D. (eds), The Law of International Drainage Basins (Dobbs Ferry, NV: Oceana Publications, 1967), pp. 779–829. ———, ‘The Nile’, in: Garretson, A.H., RD. Hayton and C.J. Olmstead (eds), The Law of International Drainage Basins (Dobbs Ferry, NV: Oceana Publications, 1967), pp. 779–829. Goldie, L.F.E. ‘Special Regimes and Pre-emptive Activities in International Law,’ International and Comparative Law Quarterly 11 (1962), pp. 670–91. ———, ‘Development of an International Environmental Law – An Appraisal’ in: Hargrove, John Lawrence (eds), Law, Institutions and the Global Environment (New York: Dobbs Ferry, 1971). Hague Academy of International Law, pp. 5, 41. International Court of Justice, ‘East Timor (Portugal V. Australia) Judgment’, ICJ Reports (1995), p. 90–104. Krishnamurthy, K.V., ‘The Challenges of Africa’s Water Development,’ Natural Resources Forum 1/4 (2009), pp. 369–75, 371. Ladan, Muhammed Tawfiq, Materials and Cases on Public International Law (Zaria, Nigeria: Ahmadu Bello University Press, 2007).

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Lipper, Jerome ‘Equitable Utilization’ in: Garretson, A.H., R.D. Hayton and C. Olmstead (eds), The Law of International Drainage Basin (Dobbs Ferry, NY: Oceana Publications, 1967), pp. 15–88. Mageed, Yahia Abdel, ‘The Nile Basin: Lessons from the Past’ in: Biswas, Asit K. (ed.), International Waters of the Middle East From Euphrates to Nile (Oxford: Oxford University Press, 1994), pp. 156–84. Marjon, Kroes, ‘The Protection of International Watercourse as a Source of Fresh Water in the Interest of Future Generations’ in Brans, E.H.P., de Haan, E.J., Nollkaemper, A. and Rinzema, J. (eds), The Scarcity of Water: Emerging Legal and Policy Responses (The Hague: Kluwer Law International, 1997). Hayton, Robert D. and Utton, Albert E., ‘Transboundary Groundwaters: The Bellagio Draft Treaty’, Natural Resources Journal 29 (1989), pp. 663–75. McCaffrey, Stephen C., ‘The Harmon Doctrine One Hundred Years Later; Buried, Not Praised,’ Natural Resources Journal 36 (1996), pp. 965–1007. Mekonnen, Dereje Zeleke, ‘The Nile Basin Cooperative Framework Agreement Negotiations and the Adoption of a ‘‘Water Security’’ Paradigm,’ Flight into Obscurity or a Logical Cul-de-Sac?’ European Journal of International Law 21/2 (2010), pp. 421–8. Munro, Bob, ‘Water and Equity in Africa: The Liquidity Crisis of the Poor’ Presented at the Ninth World Water Congress, Montreal, Canada, 3 September 1997. Mwiandi, Mary C., ‘The Nile Waters and Socio-Economic Development of Westerns Kenya’ in Tvedt, T. (ed.), The River Nile in the Post-Colonial Age: Conflict and Cooperation Among the Nile Basin Countries (London: I.B.Tauris, 2010), pp. 93–115. Ngowi, Howext Prosper, ‘Unlocking Economic Growth and Development Potential: The Nile Basin Approach in Tanzania’ in: Tvedt, Terje (ed.), The River Nile in the Post-Colonial Age: Conflict and Cooperation among the Nile Basin Countries (London: I.B.Tauris, 2010), pp. 57–62. Okidi, C.O. ‘History of the Nile and Lake Victoria Basins Through Treaties’ in Howell, P.P. and J.A. Allan (eds) The Nile: Sharing of a Scarce Resource (Cambridge: Cambridge University Press) 1994. ———, ‘Legal and Policy Regime of Lake Victoria and Nile Basins,’ Indian Journal of International Law 20/3 (1980). ———, Development and the Environment in Kagera Basin under the Rusumo Treaty, Discussion Paper No. 284 (Nairobi: University of Nairobi, Institute for Development Studies, 1986). ———, Development and the Environment in the Senegal Basin under the OMVS Treaty, Discussion paper No. 286 (Nairobi: University of Nairobi, Institute for Development Studies, 1987). ———, ‘The State and the Management of International Drainage Basins in Africa’, Natural Resources Journal 28/4 (1988), pp. 645–69. ———, Environmental Stress and Conflicts in Africa: Case Studies of Drainage Basins (Nairobi: Nairobi ACTS Press, African Centre for Technology Studies, 1994). Okowa, Pheobe, ‘Environmental Justice in Situations of Armed Conflict’ in: Ebbesson, J. and Okowa, P. (eds), Environmental Law and Justice in Context (Cambridge: Cambridge University Press, 2009), pp. 231–42.

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Rubin, Alfred P. ‘Pollution by Analogy: The Trail Smelter Arbitration’ Oregon Law Review 50/3 (1970–1), pp. 259–98. Seaton, E.E. and Maliti, S.T., Tanzania Treaty Practice (Nairobi: Oxford University Press, 1973), pp. 90–1. United Nations, ‘Trail Smelter Arbitration’ in United Nations Report of International Arbitral Awards, Vol. 3, (UN, 1995, 1938 [1938, 1941]).

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Uganda: Sovereignty and International Water Agreements

Emmanuel B Kasimbazi INTRODUCTION Uganda is a landlocked republic found in East Africa bordered to the north by South Sudan, to the east by Kenya, to the south by Tanzania, to the southwest by Rwanda and to the west by the Democratic Republic of Congo (DRC). It is a former British colony that became independent in 1962. The country shares a total length of 2,698 km of international borders with its neighbours and has a total area of 241,138 km2 spread across the equator between latitude 1˚ 30 South and 4˚ North, and longitude 29˚ 30 East and 35˚ East. At a glance, Uganda seems to be well endowed with fresh water resources, with almost 15 per cent of the country covered by water. Nearly all of Uganda’s water resources are transboundary in nature and are connected to the Nile River system. The major transboundary water bodies include Lake Victoria, which is the largest lake in Africa and is shared between Uganda, Kenya and Tanzania; Lake Albert, which is Africa’s seventh largest lake, and Lake Edward are shared by Uganda and the DRC. Uganda also shares the following transboundary rivers: the River Nile, which is shared with the DRC, Burundi, Rwanda, Tanzania, Kenya, South Sudan, Sudan, Egypt, Eritrea and Ethiopia; the River Kagera, which is shared with Burundi, Rwanda and Tanzania; the River Semliki, which is shared with the DRC; the River Malaba, which is shared with Kenya; the River Sio, which is shared with Kenya; and the River Aswa, which is shared with Sudan. The geographical positioning of Uganda with respect to the transboundary water resources means that Uganda will be affected by the use of the water, both in quantity and in quality, by the riparian countries. These include Burundi, DRC, Kenya, Tanzania and Rwanda, to which it is a downstream riparian, and in turn the use of water resources by Uganda could have an effect on the downstream riparian countries of Egypt, South Sudan and the Sudan. Thus the transboundary nature of Uganda’s water resources placed it in a very enviable, powerful position. As a result Britain, which was a colonial master, negotiated various international water

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agreements on behalf of Uganda as a colony. One can rightly assert that in-fact Uganda was not a sovereign state at the time it purportedly entered into these Nile Water Agreements as discussed subsequently in this chapter. International water agreements are very important legal instruments because they define the rights and obligations of states and recognize their sovereignty over natural resources such as water. The purpose of this chapter is to analyse the international water agreements that apply to Uganda from the colonial period to the present day. It specifically assesses how the international water agreements impact on the sovereignty of Uganda over portions of its transboundary water resources. ANALYSIS OF INTERNATIONAL WATER AGREEMENTS AFFECTING UGANDA The Constitution of Uganda under Principle XIII and Article 237 requires the government of Uganda to protect important natural resources and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and touristic purposes for the common good of all citizens. In respect of international agreements, Principle XXVIII of the Constitution commits the Uganda government to respect international law and treaty obligations and Article 287 provides that Uganda is bound by any treaty, agreement or convention with any country or international organization that was made or affirmed by Uganda on and after independence or other agreements made before. Hence, under the Constitution the government of Uganda commits itself to enter into and respect international agreements. The transboundary nature of Uganda’s water resources has greatly influenced it to enter into several international water agreements. These agreements were signed under two distinct time periods: pre-independence and post independence. Each of the two periods has implications for the sovereignty of Uganda over transboundary waters. PRE-INDEPENDENCE AGREEMENTS The 1929 Nile Waters Agreement This Agreement was signed by the Egyptian and British governments on behalf of Sudan and the East African riparian countries in relation to Lake Victoria, part of which is in Uganda. The Nile Waters Agreement, signed on 7 May 1929, was based on the report of 1925 Nile Waters Commission, which had been appointed ‘for the purpose of examining and proposing the basis on which irrigation can be carried out with full consideration of the interests of Egypt and without detriment to her natural and historic rights’ (Godana 1985: 106).

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According to paragraph 2 of the 1929 Nile Agreement, its primary motive was to further protect the interests of Egypt in light of the fact that there was to be an increment in the quantity of Nile waters required for the development of Sudan. In the same paragraph, the government of Egypt expressed its willingness to ‘agree with His Majesty’s Government upon such increase of this quality as does not infringe Egypt’s natural and historical rights in the waters of the Nile and its requirements for agricultural extension, subject to satisfactory assurances as to the safeguarding of Egyptian interests’. Under paragraph 3, the agreement sought to divide the waters of the Nile between Egypt and Sudan in varying scales, with Egypt negotiating for ‘gradual withdrawals of water’ from the Nile ‘in such a manner that the Sudan should not withdraw more than 126 cubic metres per second before 1936’. Paragraph 4(b) prevented Great Britain from undertaking construction of any irrigation or power works on the Nile or its tributaries or associated lakes in Sudan or in the territories under the administration of Britain without the consent of Egypt, if such construction would have the effect of reducing or delaying the water designed for Egypt. Three observations can be made regarding on the 1929 Agreement and the sovereignty of Uganda over the waters of the Nile. First, that Egypt had overwhelming rights, as against Sudan and other East African countries such as Uganda, in the utilization of the Nile waters. As noted above, this was evidenced by the rights given to Egypt by the Agreement, especially the requirement that any construction that would have the effect of reducing or delaying the water designed for Egypt must get its consent. This appears to assume that the purpose of the Nile is to supply water to Egypt and disregards the sovereign rights of other riparian states. Second, natural and historic rights seemed only to underscore the Egyptian natural dependence on the Nile waters, a fact that is historically correct. In fact, the agreement seemed to be an embodiment of the recommendations of the Commission, which resolved around Egypt’s so-called historic and natural rights to the Nile. The Commission submitted that its conclusions had been based on the indubitable conjecture that Egypt and Sudan had established, through long use, acquired rights of varying measures to irrigation waters. In setting out the basis on which future agricultural developments may be founded and all existing rights perpetually safeguarded, the Nile Commission reasoned its proposals had been framed along the spirit of Great Britain’s earlier recognition that it had no intention of infringing upon the natural and historic rights of Egypt in the waters of the Nile. This view did not consider the future sovereign interests of water of the Nile, which were bound to occur as result of population growth, industrial development and the independence of riparian states. Lastly, the agreement did not have a specific duration. This had implications for the Nile Basin countries in which to renegotiate the agreement when the need would arise. One of the contentious issues is whether Uganda is still bound by the agreements that were signed during the pre-independence period. Uganda

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and Kenya followed the Tanzanian position, which stated that they did not consider themselves bound by the 1929 Treaty because it was made before they gained their independence. Upon its independence in 1962, Uganda quickly adopted the position expressed by Nyerere, which came to be known as ‘the Nyerere Doctrine on State succession’ or tabula rasa theory that states ‘Former colonies had no role in the formulation and conclusion of treaties in the colonial era, and therefore they must not be assumed to automatically succeed to those treaties’ (Collins 2000). This doctrine, which also refers to the clean slate, implies that colonial-era are treaties non-binding if incompatible with state interests. Uganda’s position on the agreement was contained in a letter addressed to the secretary general of the United Nations (UN) on 12 February 1963. In the letter, the then prime minister defined Uganda’s position on the subject of treaties concluded by Great Britain and extended it to the protectorate of Uganda, declaring that that all colonial-era Treaties, after 31 December 1963 be considered ‘terminated’ unless modified by agreement with the government. The Declaration also sought to imply that the applicability of certain treaties would be upheld under the auspices of ‘rules of international customary law’. This position has been complicated by the later agreements and actions of the Ugandan government, however, for instance seeking consent of the government of Egypt for all projects of the Nile, the continued observance of the 1949 Owen Falls Agreements and the signing of a new agreement with Egypt, through an exchange of notes in 1991, ‘affirming the so-called existing agreements’. One would argue that Uganda, by virtue of its various actions of acquiescing the existence and terms therein of the previous agreements concerning the Nile, is denied from reasserting its rights under the Harmon Doctrine. Overall, it may be concluded that the 1929 Agreement does not recognize Uganda’s territorial sovereignty over the waters of the Nile. The Owen Falls Dam Agreements Plans for hydropower development in Uganda began as early as 1904, when Ripon Falls was suggested as a potential site for hydroelectric power (Mulira 2010: 131). In 1907, Winston Churchill the then under-secretary of state for colonies, on his tour down the Nile from Lake Victoria to Egypt, pointed out the potential of damming Lake Victoria at Ripon Falls. Churchill thought it was possible to establish a dam on the Nile at Owen Falls for the modernization of central Africa. He noted that Uganda should be the regional powerhouse. It is important to note that although the British colonial government was interested in hydropower development in Uganda, the Foreign Office in London was against it because it did not wish to jeopardize its relationship with Egypt. In 1935, another survey was carried out and in 1940s the plans for a hydropower station were mooted again by Governor Hall (ibid.). In 1947, Sir Charles Redvers Westlake, an English engineer, reported to the colonial

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government of Uganda recommending the construction of a hydroelectric dam at Owen Falls near the city of Jinja. This led to the establishment of the Uganda Electricity Board, with Westlake as its first chairperson. The Dam was completed in 1954. The construction of the Owen Falls Dam (now named the Nalubale Dam) was based on the negotiation by Britain, acting on behalf of Uganda, and by Egypt through an exchange of notes between the two governments that formed the agreements. The purpose of the Agreements was twofold: to control the flow of the waters of the Nile and to produce hydroelectric power for Uganda. The Agreement contained three Agreements. The first one that was contained in the first note written on 30 May 1949 by the British ambassador at Cairo to the Egyptian minister for foreign affairs, dealt with control of the flow of the Nile waters for the production of electricity for Uganda (Okidi 1982). The most important point in the Agreement was the regulation of the Nile River’s flow, that is the total amount of water going through the turbines and allowed through the sluices. Paragraph 4 of the British note thus stipulated that the Uganda Electricity Board could take any action it considered desirable before or after the construction of the Dam provided that it did so after consultation and with the consent of the Egyptian government. The two governments also agreed that although the construction of the Dam would be the responsibility of the Uganda Electricity Board, the interests of Egypt would, during the period of construction, be represented at the site by an Egyptian resident engineer of suitable rank and his staff, who would be stationed there for the purpose by the Royal Egyptian government, to whom all facilities were be given for the accomplishment of their duties. Critical analysis of the Agreement indicates that it was designed in accordance with the spirit of the Nile Waters Agreement of 1929, which gave Egypt rights to control the flow of waters of the Nile. The second Agreement of 5 December 1949 contained provisions on the granting of a contract for construction of the Dam. It stated that even though the Uganda Electricity Board would invite tenders and place contracts for construction, specifications for the work had been prepared in full consultation and with the approval of both the Egyptian and Ugandan authorities (Ibid). The third Agreement of 5 January 1953 made provisions for the financing of the construction. According to the second paragraph of the note, Egypt was to pay the Uganda protectorate approximately British £226,543 to be used for raising the Dam level by 1.3 m to allow additional storage in Lake Victoria for release at times determinable by Egypt. Egypt paid another British £980,000 to the Uganda Electricity Board for the consequential loss of hydropower, in recognition of unspecified damage below the Owen Falls Dam. Egypt further undertook to pay compensation for inundation resulting from increased storage in Lake Victoria. The Agreements of 1949 and 1953 signed behalf of Uganda and Egypt stated that the operation of the Owen Falls Dam would be according to the

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‘agreed curve’ or mimic natural flow (Mulira 2010: 133). This operating rule was developed for Owen Falls Dam to dictate how much water should be released from Lake Victoria based on the water level in the lake. It was intended to retain the natural pre-Owen Falls Dam relationship between lake level and outflow. In order that the ‘agreed curve’ was maintained, engineers from Egypt have been stationed at the dam since it became operational. The Owen Falls Dams Agreements confirmed the Egyptian interests in the flow of the Nile waters as provided in the 1929 Agreement. As a result, the Uganda’s sovereign right to deal with its Dam was made subject to the established and future Egyptian rights and interests (Okoth-Owiro 2004). THE AGREEMENT FOR COOPERATION BETWEEN THE UNITED KINGDOM AND EGYPT OF FEBRUARY 1950 This Agreement constituted an exchange of notes between the government of the Great Britain and Northern Ireland (on behalf of the government of Uganda) and of the government of Egypt regarding cooperation in meteorological and hydrological surveys in certain areas of the Nile Basin. The Agreement made arrangements for cooperation with a view to collecting and recording meteorological and hydrological information about the Equatorial Lakes. The government of Egypt, on one hand, undertook to collaborate with the government of Uganda with a view to extending the research, observation, and meteorological and hydrological recordings undertaken up to that point. It also agreed that the government of Uganda should take on the services of certain persons, as well as make use of the equipment at present in Uganda. It also agreed to contribute to the expenses incurred. The Hydrological Department of Uganda, on the other hand, undertook to supply to the Egyptian government with all the meteorological data and information collected from the observation posts. The Agreement provided for the right of the resident Egyptian engineer at Owen Falls Dam and his assistants’ to access all the posts in Uganda in order to undertake periodical inspections to assure themselves that the posts are being satisfactorily maintained and the observations regularly collected. This Agreement gave Egypt access rights over the Ugandan Owen Falls Dam, providing Egypt with control of water to the Dam. IMPLICATIONS OF THE PRE-INDEPENDENCE INTERNATIONAL WATERS AGREEMENTS FOR UGANDA’S SOVEREIGNTY It is clear from the above analysis that that agreements signed during the colonial period by Britain on behalf of Uganda had a common objective of securing recognition that Uganda had no right to interfere with the flow

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of the waters of the Nile without the consent of Egypt. As noted earlier, this state of affairs has caused controversies among upper riparian states, including Uganda, in accepting the provisions of the earlier treaties concluded during the pre-colonial period under the principle of state succession in international law. According to Brownie (1990, 654) state succession arises when there is replacement of one state by another in respect of sovereignty over given territory in conformity with international law. Article 12 of the Vienna Convention on Succession of States in Respect of Treaties of 1978 states that ‘a succession of states shall not affect obligations, or rights, relating to the use of territory’. It established the benefit of any territory of a foreign state considered as attaching to the territories in question. This provision is fundamental, regarding the sovereignty of Uganda, in recognizing the Agreements signed during the pre-colonial period. Moreover, Uganda’s position may be supported by attendant notions of state succession, such as the principle of ‘nontransmissibility’ of rights and duties or the ‘clean state’ doctrine. As noted earlier, the pre-colonial water agreements over the Nile seem to have catered more for the interests of Egypt, which it claimed on the basis of ‘natural and historic’ rights to the waters of the Nile. Indeed, most of these Agreements were negotiated by/with Britain, allegedly on behalf of the colonies they ruled such as current-day Uganda. The changes of liberation that swept Africa in the early- and mid-nineteenth century led to de-colonization and consequently the creation of new states. A great shift in sovereignty therefore emerged leading to the question of whether the successor states such as Uganda are bound by the treaties allegedly concluded on their behalf by Britain with Egypt. As has been argued elsewhere, it is prudent to note that the interests, aspirations and priorities of Uganda as an independent state cannot be adjudged to be the same as those upon which the British based their judgment to bind the colony then in the disputed treaties. Arguably, Uganda and other upper riparian states have a right as states to assert their rights over the Nile waters, to use the water as and when they deem fit for anything they may find suitable without any interference from third parties. This they can do, notwithstanding the likelihood of harm that their choice of usage of the waters may occasion to other riparian states. This is the gist of sovereignty over waters that flow within the boundary of the particular state. The debate on the sovereignty-related rights of Uganda and other riparian states is based on the predominant argument by Egypt based on ‘natural and historic rights’ to the Nile waters, and as thus the view is that the legal regime that should govern the Nile is encompassed in the treaties concluded between Egypt and Great Britain, the latter acting on behalf of Uganda, Kenya and Tanzania. This view presupposes that the Nile Water Treaties are binding on the new independent states and therefore valid. If this position was acceptable, Okoth argues that it would ‘legitimize the

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legal order of the colonial period that gave Egypt preeminence in the control of the Nile and developments in the basin’ (Okoth-Owiro 2004). To argue that the Nile Agreements survived the colonial era would be jeopardizing the sovereignty rights of the upper riparian states and the attendant opportunities for development. Therefore, the above assertion is not tenable. In the event that the above two schools of thought are shunned, since they have not found favour with the worrying parties, the need for a Nile waters-specific legal regime negotiated by all the beneficiaries of the Nile waters stands. If anything, this seems to be the only viable mechanism by which to resolve the looming impasse, since it will be commissioned by equals – that is the new independent states – a notion necessary in recognizing their new-found sovereignty that they will want to assert. This option is even more profound considering that as early as 1956 the British government had indicated that the Nile Water Treaties that Egypt relies on were subject to revision on behalf of Kenya, Tanganyika and Uganda (ibid.). The arguments of Egypt and Sudan are further watered down by Uganda’s insistence that the Agreements signed were not reflective of matters concerning, territory but rather usage of water resources, and as such they cannot survive under the principle of state succession. The international community, and indeed public international law scholars, have accepted that boundary treaties cannot be subjected to the clean state doctrine. As such, a change of sovereignty cannot affect the boundaries – pre-existing boundaries have to be respected even in the event of state succession. Clearly, this is a case of the law providing against potential conflicts that can arise out of disregard for boundary-related agreements. To hold that Uganda is bound by the pre-independence agreements undermines the most important peremptory rules or norms of international law, which provide the right to self-determination, which is a jus cogen in international law, and permanent sovereignty over natural resources. Additionally, it can be argued by Uganda and other riparian states that there was a fundamental change in circumstances with the attainment of independence of formerly colonized states that puts the validity of the Agreements signed on their behalf in jeopardy and makes them untenable in the new era of independence. Uganda’s present position on its sovereign rights over the waters of the Nile was emphasized by Mr Museveni, the president of Uganda in June 2013. He commented on Ethiopian’s move to construct Great Renaissance Dam on the Nile, which is projected to be the largest power plant in Africa with a projected cost of US $4.7 billion and installed capacity of 6,000 MW of electricity. He implicitly asserted Uganda’s sovereign rights over the Nile waters and noted that the belief that only Egypt is entitled to the Nile waters is ‘chauvinistic’ and fails to realize the need for speeding up economic growth up the Nile. Museveni warned the new government of Egypt and ‘some chauvinistic groups inside Egypt’ not to ‘repeat the mistakes of the

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past Egyptian governments’. He called for ‘rational (not emotional and uninformed statements) discussions’ under the auspices of the Nile Valley Organization, adding: ‘No African wants to hurt Egypt; however, Egypt cannot continue to hurt black Africa and the countries of the tropics of Africa’ (The Monitor 2012). Statements such as this from the president are indicative of an implicit non-recognition of the pre-independence era Agreements on which Egypt relies. POST-INDEPENDENCE AGREEMENTS Since independence, Uganda as a sovereign state has signed several agreements related to water to achieve regional cooperation. The major ones that have been signed include the following: . . .

. . .

. . .

The Agreement for the Hydrometeorological Survey of Lakes Victoria, Kyoga, and Albert. Kagera Basin Agreement of 1977. Technical Cooperation for the Promotion of Development and Environment Protection for the Nile Basin (TECCONILE) Agreement of 1992. Treaty for the Establishment of the East African Community of 1999. East African Community (EAC) Protocol on Environment and Natural Resources Management. Memorandum of Understanding (MoU) between the Republic of Kenya, the United Republic of Tanzania and the Republic of Uganda for Cooperation on Environment Management (1999). The Protocol for Sustainable Development of Lake Victoria Basin of 2003. The Nile Basin Initiative Arrangement (NBI). The Cooperative Framework Agreement of the Nile (CFA) 2010

THE AGREEMENT FOR THE HYDROMETEOROLOGICAL SURVEY OF LAKES VICTORIA, KYOGA, AND ALBERT This Agreement, also known as the Hydromet Survey Project Agreement, was signed by Kenya, Uganda, Tanzania, Sudan and Egypt, the UN Development Program and the World Metrological Organization in May 1967, and came into force on 17 August 1967. It was eventually expanded to include Rwanda, Burundi and the DRC as parties to the Agreement. Ethiopia participated as an observer. The Project was established to evaluate the water balance of the Lake Victoria catchment in regard to control and regulation of the lake level as well as the flow of water down the Nile. It required member states to

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enhance the collection of metrological and hydrological data on the great lakes and their catchment areas (Godana 1985: 190). The data obtained was essential in the understanding of River Nile and the associated lakes, and as a result the Project has contributed a lot of data regarding the hydrology and meteorology of the great lakes. This requirement was important for cooperation because it provided an opportunity for member states to apply the principle of exchange of hydrological data, which is a vital requirement to reduce flood losses and maximize successful river management. The project was significant for Uganda because the government entered into an agreement with Hydromet regarding the status of its employees. Unfortunately, the Project failed as a result of political disinterest. It expired in December 1992, and was replaced by another project known as the TECCONILE Agreement. Nevertheless, it was applauded as ‘the first deliberate multilateral institutional mechanism set up to promote interriparian cooperation in the Nile Basin’, though it was criticized as focusing on a single issue only incidental to the fundamental question of sovereignty rights of use of the Nile by the riparian states (Zeleke 2010). Even more importantly, however, the Agreement seemed to activate international customary law principles that govern transboundary water resources relating to sharing of information and research. Parties are called upon to ‘provide for the widest exchange of information, as early as possible, on issues’ concerning transboundary water resources. The presumption is that states shall initiate or intensify specific research programmes on issues relating to protection and use of transboundary watercourses. KAGERA BASIN AGREEMENT OF 1977 This Agreement was initially signed by Burundi, Rwanda and Tanzania on 24 August 1977 and it entered into force in February 1978. Uganda acceded to it in May 1981. The Agreement restricted its membership to the four basin states only. The Agreement covered all aspects of development, including water and hydropower, mining, industry, agriculture, health, tourism, trade and wildlife conservation and development, fisheries and environmental protection. It recognized the sovereign rights of state parties by permitting them to carry out any activity within its scope, subject to the right of the Organization to claim competence for projects with an inter-state character. Under Article 2 a project has this character if it involves the territory of more than one state; the services and benefits to be derived may be transmitted through or received entirely or partially in the territory of member states or a state other than that of the state where the project, work or programme is to be undertaken; or it is likely to produce substantial effects in the territory of a state or states different from that of the state where the project work or programme is to be undertaken.

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Though the Agreement did not have clear provisions on the allocation of the rights of the various states to the waters of the River Kagera, it was a good example of how an international water agreement could be used to strengthen cooperation in the region because it accorded equal rights to Basin states. THE TECCONILE AGREEMENT OF 1992 This Agreement was intended as a transitional arrangement for the continuation of technical cooperation on the Nile River Basin. It aimed at continued cooperation in the Nile Basin replacing the Hydromet Agreement which expired on 31 December 1992. It was signed by six ministers of the riparian countries and these were: DRC, Egypt, Rwanda, Sudan, Tanzania and Uganda; while Burundi, Eritrea and Ethiopia were observers. The Agreement established a follow-up institutional structure to continue with the work of Hydromet. The institutional structure consisted of an organization with a council of ministers with decisionmaking powers, a technical committee and an international secretariat. The headquarters were situated in Entebbe, Uganda. The Agreement has long- and short-term objectives. Long-term objectives include: to assist participating countries in the development, conservation and use of the Nile Basin waters in an integrated and sustainable manner through Basin-wide cooperation for the benefit of all; and to assist the participating countries in the determination of equitable entitlement of each riparian country to the use of the Nile waters. The short-term objectives include: assisting participating member states in developing national water master plans and their integration into a Nile Basin development action plan; and assisting participating member states in developing infrastructure, capacity building, and techniques required for the management of the Nile Basin water resources. It created the TECCONILE and prepared an action plan for the Nile River Basin in 1994 (TECCONILE 1995). The TECCONILE Agreement had three years to achieve its objectives. The three-year programme included nine areas: assistance in the development of water master plans; creation of a basin-wide information system; preparation of an overview of the basin-wide international and legal framework to support the efforts of all basin states to harmonize their water-planning management and environmental protection and to facilitate joint development projects; assist in identification and preparation for the financing of national and regional projects; capacity-building for environmental impact assessment and cost benefit analysis; review of water quality and quantity data and the creation of a regional database; improvement in information systems, including the establishment of modern data collection techniques; preparation and strengthening of monitoring and assessment capabilities;

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and transferring the models developed during previous phases of the operation of the Hydromet project to national governments. The TECCONILE was a very important development because it was the first international agreement on the Nile Basin. It was also revolutionary because it was the first post-independence agreement, which almost all riparian states of the Nile accepted as an undertaking to create an organization. Its main objective was to assist participating countries in the determination of the equitable entitlement of each riparian country to use the Nile waters. This objective implied that riparian states of the Nile Basin recognized the need to repudiate colonial agreements, which gave Egypt and Sudan total entitlement to control how the Nile waters were to be utilized. Indeed, this was an opening for upper riparian countries of the Nile to benefit from the shared water resources of the Nile without much objection, provided such utilization is equitable and takes into account the needs of other riparian states. This Agreement remained on paper, however, because it did not have an impact on the status of the colonial Agreements. TREATY FOR THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY OF 1999 Uganda as a member of the EAC signed the EAC Treaty. One of the objectives provided in the preamble of the Treaty is promotion of sustainable growth and equitable development of partner states, including rational utilization of the region’s natural resources and protection of the environment. Thus, it outlines a comprehensive system of cooperation among partner states in a range of systems, including environment and natural resources management. Under Article 5(3), the partners are required to ensure the promotion of sustainable utilization of the natural resources of the partner states and take measures that would effectively protect the natural environment of such states. Article 111 further requires partner states to preserve, protect and enhance the quality of the environment; to contribute towards the sustainability of the environment; to ensure sustainable utilization of natural resources like lakes, wetlands, forests and other aquatic and territorial ecosystems; and to jointly develop water resources conservation and management and design policies that ensure the sustenance and preservation of ecosystems. Under Article 112 of the Treaty, the partner states agree: to develop a common environmental management policy that would sustain the ecosystems of the partner states; to prevent the effects of environmental degradation; to develop special environmental management strategies to manage fragile ecosystems, terrestrial and marine resources; to take measures to control transboundary water pollution arising from developmental activities; and to integrate environmental management and

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conservation measures in all developmental activities. The partner states also undertake to adopt common environment control regulations, incentives and standards; develop capabilities and measures to undertake environmental impact assessments of all development project activities and programmes; adopt common environmental standards for the control of water pollution arising from urban and industrial development activities; exchange information on water; and harmonize their policies and regulations for the sustainable and integrated management of shared natural resources and ecosystems. Article 114 further requires partner states to develop common regulations for protection of shared aquatic and terrestrial resources. The EAC is perhaps the most comprehensive regionally-binding basis for developing joint strategies for the integrated management of water resources of the Nile Equatorial Lake Victoria. The principles under the Treaty are good entry points for promoting transboundary water resources management in areas such as the Nile and Lake Victoria by the EAC partner states. EAST AFRICAN COMMUNITY PROTOCOL ON ENVIRONMENT AND NATURAL RESOURCES MANAGEMENT The EAC Protocol is designed to govern the partner states in their cooperation in the management of the environment and natural resources over areas within their jurisdiction, including transboundary environment and natural resources. The Protocol has general application and applies to all activities, matters and areas of management of the environment and natural resources of the partner states, including sustainable environment and natural resources management, the management of transboundary resources and water resources. The Protocol has a specific article on management. It requires the partner states to cooperate in the management of shared water resources, which may include the following: the establishment of joint management mechanisms; cooperation with regard to the management and execution of all projects likely to have an effect on shared water resources; cooperation in responding to the needs or opportunities for regulation of the flow of the waters of shared water resources; development and use water resources with a view to attaining optimal and sustainable utilization thereof and benefits therefrom consistent with the adequate protection of those water resources; individually or jointly taking measures to prevent or mitigate conditions related to a water resource, including shared water resources, that may be harmful to other partner states whether resulting from natural causes or human activities; individually or jointly protecting and conserving the water resources and their ecosystems in the EAC through protecting and improving the water quality; preventing the introduction of alien species into the water resources; protecting and conserving biological diversity in the water resources; taking all necessary measures to promote river and lake

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basin management in order to protect water resources; improve water catchment management; and promote rain harvesting, protection of wells and springs, and other water sources. MEMORANDUM OF UNDERSTANDING BETWEEN THE REPUBLIC OF KENYA, THE UNITED REPUBLIC OF TANZANIA AND THE REPUBLIC OF UGANDA FOR COOPERATION ON ENVIRONMENT MANAGEMENT (1999) One of the objectives of this MoU is to promote the development and implementation of environmentally-sound principles, international agreements, instruments and strategies for the environment and natural resources management of the partner states. It requires partner states to cooperate in developing common water quality control programmes based on harmonized water policies, standards and monitoring systems. Parties are also required to develop, enact and harmonize their national framework and sectoral environmental laws, implement regulations on the right to a clean, decent and healthy environment, to instigate common EIA processes and procedures, the Lake Victoria ecosystems and other shared natural resources such as rivers. The MoU has specific provisions regarding water pollution and the management of Lake Victoria. States are required to initiate, develop, implement and harmonize policies and laws and programmes to strengthen regional coordination in the management of Lake Victoria’s ecosystems, especially in water quality, quantity and the management of pollution of the Lake. THE PROTOCOL FOR SUSTAINABLE DEVELOPMENT OF LAKE VICTORIA BASIN OF 2003 Uganda, as signatory of the EAC Treaty, also signed the Lake Victoria Protocol. This Protocol is a detailed document aimed at sustainable development in Lake Victoria. The preamble of the Protocol recognizes a number of aspects in respect to Lake Victoria as a shared water resource. It recognizes that development activities may have negative impacts on the environment, leading to degradation of the environment and depletion of natural resources, and that a clean and healthy environment is a prerequisite for sustainable development. It recognizes that water is a finite and vulnerable resource essential for sustaining life, the environment and development opportunities and must be managed in an integrated and holistic manner, linking social and economic development with the protection and conservation of natural resources. It further recognizes that water is an economic good having social and economic value whose

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utilization should give priority to its economic use, taking cognizance of basic human needs and safeguarding ecosystems. The Protocol defines the ‘Nile River Basin’ to mean that geographical area extending across the territories of various states drained by the River Nile and its tributaries and determined by the watershed limits of the system of waters, including surface and underground waters flowing into the River Nile system and eventually into the Mediterranean Sea. It also defines water resources as meaning all forms of water on the surface and in the ground, including the living and non-living resources therein. It contains recognized principles of international water law applicable to the management of shared water resources under Article 4. These include: the principle of equitable and reasonable utilization of water resources; the principle of sustainable development; the principle of prevention to cause harm to members; the principle of prior notification concerning planned measures; the principle of environmental impact assessment and audit; the precautionary principle; the ‘polluter pays principle’; the principle of public participation; the principle of prevention, minimization and control of pollution of watercourses so as to minimize adverse effects on freshwater resources and their ecosystems; the principle of protection and preservation of the ecosystems of international watercourses; the principle of community of interests in an international watercourse; and the principle of subsidiarity. Under Article 5, the Protocol requires partner states to utilize the water resources of the Basin, in their respective territories, in an equitable and reasonable manner and with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the partner states. It also requires partner states to take into account factors as recognized by the UN Convention on the Law of Non-navigation Uses of International Water courses in the utilization of the water resources. Article 48 of the Protocol provides that the Protocol shall take precedence over any existing agreements relating to Lake Victoria, and if any other agreement is inconsistent with this Protocol it shall be null and void to the extent of its inconsistency. This Protocol seems to invalidate the agreements that were signed on behalf of Uganda during the colonial days on the basis that they are/were inconsistent with equitable utilization of the water of the Nile as relating to Lake Victoria. It is clear that through regional agreements, Uganda as a partner state of the EAC, has legal obligations to jointly manage transboundary resources such as water. The obligations created are within its sovereign rights. THE NILE BASIN INITIATIVE ARRANGEMENT This is a transitional mechanism that was officially launched in February 1999 in Dar es Salaam by the Council of Ministers of Water Affairs of the

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Nile Basin (Nile-COM). In May 1999, the overall process was officially named the NBI. The legal status of the NBI was realized on 4 November 2002, with the signing of the Headquarters Agreement between the government of Uganda and the NBI. The Agreement is meant to facilitate the establishment and operation of the NBI secretariat at Entebbe, Uganda. It avails the NBI of the necessary legal recognition to enable it perform its functions and effectively facilitate the work and programs of the NBI. The Agreement grants the NBI diplomatic status within Uganda, thus recognizing the NBI as an international legally-constituted institution that enjoys the privileges accorded to such institutions. Uganda has gone on to recognize the establishment of the NBI by enacting the Nile Basin Initiative Act 2002, which confers the legal status of the NBI in Uganda and grants it and its staff diplomatic privileges and immunities. The NBI has a comprehensive structure. It is comprised of Nile-COM, the highest decision-making body of the NBI; a Technical Advisory Committee (Nile-TAC), which provides technical support to Nile-COM; and a secretariat (Nile-SEC), which implements the decisions of Nile-COM. The NBI also has an International Consortium for Cooperation on the Nile Basin, which was established to support the NBI’s action programme. This is a unique forum, which envisaged a long-term partnership between Nile Basin countries and the international community. Within the International Consortium for Cooperation framework, there is a consultative group, which is supposed to help raise funds from bilateral and multilateral donors for NBI activities. The NBI is guided by a shared vision ‘to achieve sustainable socioeconomic development through equitable utilisation of, and benefit from, the common Nile Basin water resources’. To translate the NBI shared vision into action, a strategic action programme has been launched to identify and prepare cooperative projects in the Basin. The first of these, the Shared Vision Programme (SVP), aims at creating an environment suitable for cooperation in and management of development processes in the Nile Basin through seven projects covering all water-related sectors: the energy trade, efficient use of water, management and planning to establish mutual trust, training of technicians, international environmental work, and social and economic development. There are a number of projects conducted under this programme. The first project is the Nile Transboundary Environmental Action Project. This seeks to provide a strategic framework for environmentally-sustainable development of the Nile River Basin and to support Basin-wide environmental action linked to transboundary issues. The second project is the Nile Basin Regional Power Trade, which seeks to establish the institutional means to coordinate the development of regional power markets among the Nile Basin countries. The third project is the Efficient Water Use for Agricultural Production Project. This project aims at providing a sound conceptual and practical basis to increase the availability

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and efficient use of water for agricultural production. The fourth project is Water Resources Planning and Management, which seeks to enhance the critical capacity for a Basin-wide perspective to support the development, management, and protection of Nile Basin water resources in an equitable and sustainable manner. The fifth project is the Confidence Building and Stakeholder Involvement Project, which targets the development of confidence in regional cooperation under the NBI at Basin-wide and local levels and ensures full stakeholder involvement in the NBI and its projects. The sixth project is the Applied Training Project, which seeks to strengthen institutional capacity in selected areas of water resources management in public and private sectors and community groups. The last one is the Socio-Economic Development and Benefit-Sharing Project which, aims at strengthening Nile River Basin-wide socioeconomic cooperation and integration. While the SVP projects differ in focus and scope, they build upon each other to form a coordinated programme. These projects are considered a first step towards consolidating regional cooperation through the development of a common vision. The SVP currently requires an estimated amount of $122 million for implementation. The Subsidiary Action Programme is concerned with projects in the eastern (including Egypt, Sudan and Ethiopia) and southern Basin (including Kenya, Tanzania, Rwanda, Uganda, Burundi and the DRC). The eastern Basin projects aim to develop multiple-use of water resources; create a flood early warning system; increase energy investment and trade; improve irrigation and drainage; and encourage effective water resource management. The southern Basin projects aim to develop fishing in the Albert and Edward Lakes; manage water resources in the Kagera River via the development of cooperative management of the Sio–Malaba–Malakisi River Basins; develop electricity projects and carry out feasibility studies for other energy projects; and promote communication and cooperation between the southern Nile states. The Subsidiary Action Programme’s immediate financial needs are estimated at $79 million. The projects of the NBI form a solid basis for economic integration between the states of the Nile Basin, and the initiative will thus serve to moderate these states’ interaction regarding water issues, while the mechanisms for dealing with this issue are passing through a state of change. There are many reasons why this change is taking place. First, economic development has become more urgent than ever for the countries of the Nile Basin. The NBI may lead to the retrieval of 47 billion m3 of water from the tropical riverhead in Ethiopia. This would represent a considerable amount of the water lost from the riverhead and therefore help with development projects. Second, donor countries and agencies are becoming increasingly concerned with promoting and supporting cooperation frameworks in regions where there are causes for possible conflict, especially over water resources. The government of the

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Netherlands, for example, has allocated Egypt a grant of $21 million to host a programme to boost the technical abilities of regional water resource experts and managers. These and other new developments have served to create the environment for the formation of a new regional stance, though at the same time there are problems that can undermine this. The establishment of the NBI is an indication of the Nile Basin countries’ willingness to cooperate in a united pursuit of the long-term development and management of the Nile waters. For the first time, all 10 Nile Basin countries have expressed a serious concern about the need to work together to fight poverty. It is important to note that within the framework of the NBI, members also agreed on a set of general principles governing their water relations. The most important of these are that each member has a right to a share of water, that all members should benefit from any project, and that no project harmful to another member is permissible. It has been applauded as the first semblance of a move by the riparian states to break the paradigm of confrontation – ‘a breakthrough from competition to cooperation’ (Brunnee & Toope 2002). Under the NBI, an opportunity has also been presented to renegotiate the 1929 Nile Waters Agreement. In particular, Principle 15 of the NBI declares that all existing agreements that are inconsistent with the framework of the NBI should be considered null and void. By implication, it brings into point the Nile Treaty, a situation that has seen Sudan and Egypt vehemently calling for the amendment of this principle to instead emphasize the notion that this NBI framework does not in any way prejudice earlier existing agreements. The NBI boasts a regional ambitious agenda of emphasizing regional cooperation and ‘mutually beneficial relationships’ among the countries within the Nile Basin (Kameri-Mbote 2005). It has stood out as an initiative that seeks to consider and balance the various interests of the riparian states. The vision of the NBI is projected as aimed at achieving ‘sustainable socio-economic development through equitable utilization of, and benefit from the Common Nile Basin water resources’ (Ibid). The NBI seems to have adopted the principle of equitable utilization and conveniently circumvented the rights-based, sovereignty-leaning approach that would have seen perhaps further friction between the Nile Basin countries. The need for a novel legal framework discussed, negotiated and agreed upon the Nile Basin countries in their current capacity as independent states cannot be underestimated. This assertion is an offshoot of the continued total rejection or somewhat measured indifference of some of the Nile Basin upstream riparian countries of/to earlier agreements that were concluded when some such of these countries, such as Uganda, were mere colonies under the jurisdiction of the British. The rejection of the treaties signed with the British underpins the argument that there has not been any agreement signed at the inter-riparian stage.

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THE COOPERATIVE FRAMEWORK AGREEMENT OF THE NILE, 2010 The CFA was signed on 14 May 2010 by Uganda, Tanzania, Rwanda and Ethiopia in Entebbe, Uganda. Kenya signed on 19 May 2010, while Burundi signed in February 2011. Egypt, the DRC, South Sudan and Sudan are yet to sign the Agreement. Article 1 of the CFA covers the use, development, protection, conservation and management of the Nile River Basin and its resources, and establishes an institutional mechanism for cooperation among the Nile Basin states. One of the principles of the CFA is to ensure cooperation between states of the Nile River Basin on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection and conservation of the Nile River Basin and to promote joint efforts to achieve social and economic development. Under Article 18, the CFA establishes the Nile River Basin Commission with the following purposes and objectives: to promote and facilitate the implementation of the principles, rights and obligations provided for in the present framework; to serve as an institutional framework for cooperation among Nile Basin states in the use, development, protection, conservation and management of the Nile River Basin and its waters; and to facilitate closer cooperation among the states and peoples of the Nile River Basin in the social, economic and cultural fields. The CFA is good for Uganda because it provides new opportunities for cooperation, development and sustainable management/utilization of the water resources of the Nile River Basin for the benefit of all. When it is implemented, Uganda will host the headquarters of the Commission, which puts it in a strategic position to handle the Nile Basin issues. CONCLUSION Uganda is in a unique position as far as transboundary waters are concerned. It is both a major up- and downstream country. It is downstream to Kenya, Tanzania, Rwanda, Burundi and the the DRC. It is upstream to Sudan and Egypt. This puts the country at the centre of all issues to do with transboundary waters in the east and central Africa regions and also dictates the kind of decisions and positions the country takes when dealing in the region. The geographical positioning of Uganda in the Nile River Basin implies that any problems created by downstream countries, i.e. Sudan and Egypt, affects Uganda as they do Kenya, Tanzania, Rwanda and Burundi. At the same time any problems created by the upstream countries of Kenya, Tanzania, the DRC, Rwanda and Burundi can affect Uganda as

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much as they do Sudan and Egypt. In light of its unique position, Uganda is therefore better off by cooperating with other riparian states on the basis of shared benefits in framework agreements that cater for the its sovereign interests. REFERENCES Brunnee, J. and Toope, S.J., ‘The Changing Nile Basin Regime: Does Law Matter?’ Harvard Int’l LJ 43 (2002), p. 105–9. Kameri-Mbote P., ‘From Conflict To Cooperation In The Management of Transboundary Waters The Nile Experience’, in Linking Environment and Security – Conflict Prevention and Peace Making in East and Horn of Africa (Washington DC, WA: Heinrich Boell Foundation, 2005). Godana B.A., Africa’s Shared Water Resources Legal and Institutional Aspects of the Nile, Niger and Senegal River Systems (London: Frances Pinter, 1985). Howell P.P and Allan J.A., The Nile: Sharing a Scarce Resource: an Historical and technical Review of Water Management and of Economic and Legal Issues (Cambridge: Cambridge University Press, 1994). Kasimbazi E., ‘The Principle of Equitable Utilization and its Implications for Water Resources Management in The Nile Basin’, PhD thesis (Durban: University of Kwazulu Natal, Durban, South Africa, 2009). Mageed Y.A., ‘The Nile: Lessons from the Past’, in Biswas A.K. (ed.), International Waters of the Middle East: From Euphrates –Tigris to Nile (Oxford: Oxford University Press, 1994). Mekonnen D.Z., ‘The Nile Basin Cooperative Framework Agreement Negotiations and the Adoption of a ‘‘Water Security’’ Paradigm: Flight into Obscurity or a Logical Cul-de-sac?’, European Journal of International Law 21 (2010). Mulira J., ‘Independent Uganda and the Nile: Hydroelectric Projects and Plans’, in Tvedt T. (ed.), The River Nile in the Post-Colonial Age: Conflict and Cooperation among the Nile Basin Countries (London: I.B.Tauris, 2010). Okoth-Owiro, A., State Succession and International Treaty Commitment: A Case Study of the Nile Waters (Nairobi, Konrad Adenauer Stiftung and Law and Policy Research Foundation, 2004). Okidi C.O., ‘Review of Treaties on Consumptive Utilization of Waters of Lake Victoria and Nile Drainage System’, 22 Nat. Resources J. 161 (1982). Weyler E., Regional Development in the East Nile River Basin (Lund University, 2004), available at http://www.lumes.lu.se/database/alumni/03.04/theses/weyler_ elin.pdf, accessed on 20 November 2010). Yacob Y., ‘From UNDUGU to the Nile Basin Initiative: An Enduring Exercise in Futility’, Addis Tribune, 2004, available at http://www.addistribune.com/ Archives/2004/01/30-01-04/From.htm, accessed on 14 August 2013.

Contributors

CHAPTER 1 Terje Tvedt is Professor of Geography at the University of Bergen and Professor of Political Science and Global History at the University of Oslo. He has published extensively on water-related topics and presented three successful television documentaries on water, shown in 150 countries worldwide. His books include The River Nile in the Age of the British, A Journey in the Future of Water, and he is the Series Editor of the pioneering History of Water series, all published by I.B.Tauris. Owen McIntyre is Senior Lecturer at the Faculty of Law, University College Cork, specialising in environmental law. He serves on the editorial boards of a number of Irish and international journals, and regularly acts as a consultant for such organizations as the World Bank, United Nations Development Programme, United Nations Environment Programme, European Union, Swedish International Development Cooperation Agency and Gesellschaft fu ¨ r Internationale Zusammenarbeit on matters related to environmental law and international water law. Since 2004, he has been a member of the Project Complaints Mechanism of the European Bank for Reconstruction and Development. In 2008 he was designated a member of the Scientific Committee of the European Environment Agency as an expert on European and international environmental law. He publishes on a range of issues in environmental law, including Environmental Protection of International Watercourses under International Law (2007). Tadesse Kassa Woldetsadik holds a PhD from the Faculty of Law, University of Oslo (2011). He is Dean and Assistant Professor of Law and Human Rights at the College of Law and Governance Studies, Addis Ababa University. The focus of his research includes international watercourses law and Ethiopia’s national human rights system. He is the author of International Watercourses Law in the Nile Basin – Three States at a Crossroads.

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CHAPTER 2 Joseph W. Dellapenna is a professor of law at Villanova University. He served as Rapporteur of the Berlin Rules on Water Resources, approved by the International Law Association in 2004 as the current summary of the customary international law of water resources. He also directs the Model Water Code Project of the American Society of Civil Engineers, and co-edited the book, The Evolution of the Law and Politics of Water (Springer 2004). Joyeeta Gupta is Professor of Environment and Development in the Global South, Group on Governance and Inclusive Development at the Department of Geography, Planning and International Development Studies, Amsterdam Institute for Social Science Research, University of Amsterdam, and Professor at the UNESCO Institute for Water Education in Delft. CHAPTER 3 Stephen McCaffrey is Distinguished Professor of Law at the University of the Pacific, McGeorge School of Law. A former member and Chair of the International Law Commission, he served as the International Law Commission’s special rapporteur on the Law of the Non-Navigational Uses of International Watercourses from 1985 to 1991, when the Commission adopted a full set of draft articles on the topic. CHAPTER 4 William Howarth is Professor of Environmental Law at Kent Law School, University of Kent, UK, and convenor of the LLM programmes on environmental law. He is author, co-author or editor of 14 books on the law relating to various aspects of the aquatic environment and author of more than 100 papers in academic journals on diverse aspects of environmental law. CHAPTER 5 Ernst Nordtveit is Professor at the Faculty of Law, University of Bergen since 1993, Dr Juris since 1990. He served as Vice Dean from 1996 to 1998 and Dean from 1999 to 2009. He has worked mainly in the area of property law and energy law, and more generally natural resource law and environmental law.

Contributors

709

CHAPTER 6 Sergio Marchisio is Professor of International Law at the University Sapienza in Rome and Director of the 2nd Level Master’s degree course in the International Protection of Human Rights as well as Legal Advisor to the Directorate for Political Affairs of the Italian Ministry of Foreign Affairs. In 2011 he was appointed a member of the Group of 15 Governmental Experts set up by the United Nations General Assembly in conformity with Resolution 65/68 of 13 January 2011. From 2007–10 he acted as Senior Legal Advisor to the United Nations Development Programme for water management projects in Egypt. CHAPTER 7 Alistair Rieu-Clarke is Reader in International Law at the Centre for Water Law, Policy and Science (under the auspices of UNESCO) at the University of Dundee, Scotland. His research activities focus on deepening knowledge and understanding of the value of international law within the context of transboundary water cooperation. CHAPTER 8 Remy L. de Jong was born in the Netherlands and now lives in the USA. His researches have been in water resources management and law. Academic and consulting assignments have taken him to some 40 countries in the Middle East, Africa and Central Asia. CHAPTER 9 Cara Nine is Lecturer in Philosophy at the University College Cork in Ireland. She has published several articles advancing a theory of territorial rights, culminating in her book Global Justice and Territory (2012). She co-directs a research network, Territory and Justice, funded by the International Research Conference on Humanities and Social Sciences and the Arts and Humanities Research Council. CHAPTER 10 Flavia Rocha Loures holds a JD from the University of Parana´, Brazil. In 2006, she received her LLM, summa cum laude, from Vermont Law School, USA. She has been working with environmental law and

710

A History of Water

policy for the past eight years. In 2005, she joined the World Wildlife Fund’s freshwater programme to lead a global initiative aiming to strengthen the role of international law in supporting transboundary water cooperation. CHAPTER 11 Julie Gjørtz Howden is a PhD candidate at the Faculty of Law at the University of Bergen. Her doctoral thesis focuses on the communityof-interest approach in international water law. CHAPTER 12 Sylvie Paquerot (MA/MLL/PhD) is Associate Professor at the School of Political Studies and member of the Human Rights Research and Education Centre at the University of Ottawa, Canada. She is also member of the Research Network on International Governance, Globalization and the Transformations of the State. Her research fields and publications (mainly in French) are on global governance and the international law of water and natural resources. CHAPTER 13 Raya Marina Stephan is a water law specialist and an international consultant. She has wide experience in international projects related to water resources, mainly transboundary aquifers. She is Chair of the Publication Committee of the International Water Resources Association. Gabriel de los Cobos is a geologist and hydrogeologist. He has been head of the Geology and Groundwater Section of the Service of Geology, Soils and Waste of the Canton of Geneva, Switzerland, since 1998. He is a member of the Transboundary Committee for Genevese Aquifer Management. CHAPTER 14 Owen McIntyre (see Chapter 1) CHAPTER 15 Patricia Wouters (PhD) is Professor and Founding Director of the Dundee UNESCO Centre for Water Law, Policy and Science, and Founding Director

Contributors

711

of the China International Water Law programme, Xiamen University. Her research on international water law has been presented around the world, and she serves on a number of global advisory boards (Global Water Partnership; United Nations University, Institute for Water, Environment and Health). She continues to supervise PhD students in Dundee and Xiamen. CHAPTER 16 Lilian del Castillo-Laborde (PhD) chairs Public International Law at the University of Buenos Aires School of Law, Secretary-General of the Academy for Environmental Sciences of Argentina (2011–2014), Vice-President of the International Water Resources Association (IWRA) (2013–2015), among other institutions. CHAPTER 17 Yadgar Ahmmad holds a PhD in Transboundary Water Law and Policy (2010) from the University of Dundee, Scotland, an LLM in Petroleum Law and Policy (2005), Dundee, and an LLB (Honours) from Ahmad Ibrahim Kullyah of Laws, IIUM, Selagor, Malaysia (2002). He is currently Lecturer in Public International Law at the School of Law and Administration, Koya University in Koya, Iraq. CHAPTER 18 Tom Cech, formerly Executive Director of the Central Colorado Water Conservancy District in Greeley, Colorado, is now Director of the One World One Water Center for Urban Water Education and Stewardship at the Metropolitan State University of Denver, Colorado. CHAPTER 19 Joe Goldface-Irokalibe is Professor of Water Resources Law at the Law Faculty of Ahmadu Bello University, Zaria, Nigeria. He is Chairman of the National Technical Sub-Committee on Integrated Water Resources Management, National Council of Water Resources for the Federal Republic of Nigeria. He is also Chair of the Legal/Technical Committee on New Water Law for Nigeria.

712

A History of Water

CHAPTER 20 Muhammad Mizanur Rahaman is Associate Professor in the Department of Civil Engineering, University of Asia Pacific, Bangladesh. A former researcher at the Water and Development Research Group, Aalto University, Finland (2001–2013), he has also visited scholar at University of Cambridge, UK. His work focuses on global water policies, water laws, integrated water resources management, transboundary river basin institutions and conflicts. He is a member of International Law Association, Finnish Association of Civil Engineers, International Water Resources Association and Cambridge Union Society. CHAPTER 21 Amado S. Tolentino Jr is a pioneer in the field of environmental law, having served as the first Director of the Philippines’ Environmental Management Bureau, as consultant to the United Nations Environment Programme and as Ambassador to Papua New Guinea and Qatar. He is a member of the International Association of Water Law (AIDA). CHAPTER 22 Jennifer McKay has researched, taught and consulted on water resource management and law issues throughout Australia and in India, and is parttime Commissioner of the South Australia Environment, Resources and Development Court. She is the author of a number of publications and has been involved in law reform processes. CHAPTER 23 Desheng Hu (LLB, PhD) is Professor of International and Comparative Law, with environmental law (broadly defined) as his major research field. He is based at the School of Law at Xi’an Jiaotong University in China. CHAPTER 24 Slavko Bogdanovic (LLM, LLD) is Professor of Environmental Law and Water Law at the Faculty of Law, University Business Academy in Novi Sad, Serbia. He is author and co-author of more than 130 research papers and editor or co-editor of more than 25 books.

Contributors

713

CHAPTER 25 Christoph Vedder is Professor of Law, Chair of Public Law, Public International Law and European Law at the University of Augsburg Law School, and Co-Director of the ‘Water: A Global Challenge’ research project. He has held research and teaching positions at universities in Europe and the USA, and has published on European law, particularly on the matter of the European Union’s foreign relations and international trade, as well as in various fields of public international law. Stefan Lorenzmeier (Dr Iur., LLM) is Academic Counsellor at the University of Augsburg Law School, and Co-Director of the ‘Water: A Global Challenge’ research project. He has held research and teaching positions at universities in Europe and the USA, and has published on European and public international law as well as water law. CHAPTER 26 Dean Kampanje-Phiri is a researcher on water issues particularly focusing on water resources management. Southern Africa forms his geographical focal point with the Nile River Basin as a broad comparative area. He has worked extensively on the Zambezi River Basin and continues to explore institutional dynamics in this important river basin of southern Africa. CHAPTER 27 Terje Tvedt (see Chapter 1) CHAPTER 28 Mohamed Sameh Amr holds a PhD in International Law from the London School of Economics and a Master’s in Public and Private Law from Cairo University. He has led a distinguished diplomatic in addition to an academic career as a Professor of Public International Law at Cairo University. Mohamed Amr has represented Egypt on a number of international committees and in negotiations regarding a number of conventions. CHAPTER 29 Tadesse Kassa Woldetsadik (see Chapter 1)

714

A History of Water

CHAPTER 30 Charles Okidi is Professor of Environmental Law, Director of the Centre for Advanced Studies in Environmental Law and Policy, and Research Professor at the Institute for Development Studies, University of Nairobi. CHAPTER 31 Emmanuel B. Kasimbazi is Associate Professor of Environmental Law and Policy at the School of Law, Makerere University, Kampala, Uganda. He is Chair of the Environmental Law Centre.

Index

Aboukir Company, 614 absolute territorial sovereignty, 4, 7, 9, 12, 37, 39, 51, 54, 56, 57, 215–6, 224, 315, 360, 392, 396, 548, 625–6, 673 acequias, 402 Acton v. Blundell (1843), 93, 94 Aegean Sea Continental Shelf case (Greece v. Turkey), 139 Afghanistan Amu Darya River, 186–7 transboundary river with China, 508, 510 water extraction agreement with Russia, 187 Al Ain, 188 Al Buraymi, 188 Al-Ertifaq rights, 390 Allemannsrett, 118 Allenby ultimatum (1924), 606–9 allocation alternative allocation targets, 34, 193 concept of, 176 criteria for, 177 at international level, 181–4 at national level, 179–80 framework for negotiations, 192–3 harmonious development, 193–4 institutional framework, 193 objectives, 176–177 recommendations, 194 tools see economic potential, hydrology, history, population

alluvial aquifers, 303–4 Al-Wehda Dam, 189 Amazon Cooperation Treaty (1978), 373 America see United States of America Amman, district in Jordan, 190 Amu Darya, 186–187 Amur River see Heilongjiang River Amur Ulungur River, 510 Anderson, Benedict, 581 Annan, Kofi, 335 An-Nawawi, 389 Applied Training Project, 703 appurtenancy, 96–7 aqua profluens, 538 aquifer alluvial, 303–4 balance, 308–9 coastal, 429 versus groundwater, 301–2 Arangio-Ruiz, Gaetano, 328 Argentina Act of Asuncio ´ n on the Use of International Rivers (1971), 368, 372 Agreement for the Utilization of the Water of the Uruguay River (1980), 368–9 Agreement on Parana´ River projects (1979), 373 Bermejo River, 369 Bi-national Administrative Commission, 370

716

Argentina (continued) Bi-national Commission for the Development of the Basin of the Upper Bermejo River and its Tributary (1995), 369 Guarani Aquifer System, 299, 310–1, 360, 376 La Plata Basin, 365, 368–70 La Plata Basin Treaty (1969), 368, 371–2 Parana´ River, 359, 368, 371, 373 Pepirı´ Guazu ´ River, 368 Pilcomayo River, 360, 369–70 Pulp Mills on the River Uruguay (Argentina v. Uruguay), 143, 224, 240, 322–5, 631 Treaty of Yacyreta´ (1973), 368, 370 Uruguay River Statute (1975), 373–6 Uruguay River, 367 Arthashastra, 33 Association of Southeast Asian Nations (ASEAN), 479–85 Aswan Dam, 614 Austin, John, 27 Australia annual diversion targets, 495–6 biodiversity, 498 Case Concerning East Timor (Portugal v. Australia), 670 challenges Basin plan, 504–5 climate change, 504–5 Federal Treasury, 504 fiscal federalism, 500 food security issues, 502–3 mining and water markets, 502–3 Murray Darling Basin, 502 state colonial law, 500 treaty power, 500 water allocations, 502 weak national protocols, 500–2 decisional sovereignty, 316 determinacy, 498 ecological integrity, 498 food-bowl trans-state river, 491 foreign investment, 503–504 freshwater ownership, 490–2 use, 490–2

A History of Water

international obligations, 496 licences removal, 499 replacement, 499 national interest, 496 Queensland, 500, 502, 503 resource operations plan, 502 riparian law, 493–4 Section 100 state-based sovereignty, 492–4 use, 494–5 state water plans, 498–500 Water Act (2007) decision-making processes, 497 Malcolm Turnbull, 497 national intervention, 495–6 process, 496–8 Water Amendment Act (2008), 497 Water for the Future, 497 ayuntamiento, 402 Bangkok Declaration (1967), 479–80 Bangladesh Farakka Barrage discussion with India, 13 Ganges discussion with India, 13 Sixth Committee, 159, 161 transboundary water with China, 508, 511, 515 Bangong Co, Lake, 511 Barsegov, 327 Bayley, Justine, 86 Baynes Hydropower Project, 583 Bealey v. Shaw (1805), 86 Beesley, J.A., 326 Beilunhe River, 511 Benin, 427 coastal transboundary aquifer system, 429, 430, 432 Tauodeni/Tanezrouft Aquifer Systems, 431 UN Watercourses Convention (1997), 444 Berhane, Daniel, 680 Berlin Rules on Water Resources, 39, 221–2, 286–8 Bermejo River, 369 Black’s Law Dictionary, 623 Blackstone, W., 68

Index

and prior appropriation, 81–4 on protection of water rights, 84–5 Blokker, Niels M., 254 Blue Nile River, 188, 604, 659 Bodin, Jean, 48 Bolivia Amazon Cooperation Treaty (1978), 373 Bermejo River, 369 Bi-national Administrative Commission, 370 Bi-national Commission for the Development of the Basin of the Upper Bermejo River and its Tributary (1995), 369 Desaguadero River, 366 Guarani Aquifer System, 299, 310–1, 360, 376 La Plata Basin, 365, 368–70 La Plata Basin Treaty (1969), 368, 371–2 Pilcomayo River, 360, 369–70 Poopo ´ Lake, 366 Salar of Coipasa, 366 Titicaca Lake Basin, 366–7 Bouchez, A., 224 Bourne, Charles B., 20, 667, 676 Brackenridge, Henry M., 404 Bracton, Henry de, 68 Bradford Corporation v. Pickles (1895), 95, 96 Brazil Agreement for the Utilization of the Water of the Uruguay River (1980), 368–9 Agreement on Parana´ River projects (1979), 373 Amazon Cooperation Treaty (1978), 373 Cuareim/Quaraı´ River, 369 Declaration of Asuncio ´ n (1966), 371 Federal Law 9433/97, 221 Guarani Aquifer System, 299, 310–1, 360, 376 La Plata Basin, 365, 368–70 La Plata Basin Treaty (1969), 368, 371–2 Mirim Lagoon agreement (1963), 367–8

717

Parana´ River, 359, 368, 371, 373 Pepirı´ Guazu ´ River, 368 Uruguay River Statute (1975), 373–6 Uruguay River, 367 Brierly, James Leslie, 627 Brown v. Best (1747), 79 Brunei Darussalam, 432, 438, 479 ‘Heart of Borneo’ initiative, 482–3 Brunne´e, Jutta, 592, 595 Burkina Faso, 424 Frontier Dispute (Burkina Faso v. Republic of Mali), 130, 136–7 Niger River, 427 transboundary aquifer management, 432 Caflisch, Lucius, 224 Cahora Bassa Dam, 579, 586–7 Cambodia Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (1995), 470, 530 Agreement on the Provision of Hydrological Information of the Lancang/Mekong River in Flood Season (2002), 531 ASEAN member, 479, 483–4 ASEAN Summit (2012), 484 Asian Development Bank, 483 Bangkok Declaration, 479 Core Environment Program, 483 Greater Mekong sub-region, 483 Lancang/Mekong River, 529 Phnom Penh, 484 Temple of Preah Vihear (Cambodia v. Thailand), 140 transboundary river with China, 508, 511, Cameron, Robert, 414 Cameroon Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), 131, 137 Lake Chad, 131, 137 Sixth Committee of the UNGA (1996–7), 159 territorial sovereignty, 136–7

718

Canada boundary water with the USA, 626 Boundary Waters Treaty, 261–2 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), 137, 139 Fisheries Jurisdiction (Spain v. Canada), 133 ‘no harm’ principle, 634 Trail Smelter dispute with the USA, 50, 634, 672 water pollution, 287 Caponera, Dante, 645, 657 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 131 Central Asian water agreements, 460 Chad Chari-Logone River, 668 groundwater reserves, 680 Lake Chad, 131, 137 Niger River, 427 UN Watercourses Convention (1997), 444 Chasemore v. Richards (1859), 95, 96 Chile, 468 China administrative measures, 513–6 autonomous regulations, 519 characteristics, 508–9 coastal aquifer, 429 Constitution of the People’s Republic of China (PRC), 516 cooperation, 525–6 departmental rules, 519–20 hydroelectric power stations, 512–3 international documents, 514–5 joint working mechanisms, 526–8 Kazakhstan and Russia issue by issue, 525 state by state, 522–4 Lancang/Mekong River, 528–30, 528–33 laws enacted by the National People’s Congress (NPC), 517–8

A History of Water

Ministry of Water Resources of the PRC (MWR), 513 natural channel, 508 policy and legal system, 509–12 regulations, 518–9 riparian countries, cooperation, 512–3 rivers and channels, 510–2 rules, 519–20 separate regulations, 51 Strictest Management System for Water Resources, 516 treaty forms and types, 520–2 negotiating instruments, 522 People’s Republic of China (PRC), 520 and State Council, 516–7 water quality protection, 533 improvement, 533 Chobe–Vaal water project, 669 Civil Code Committee, 119 Civil service organizations (CSOs), 585 Clinton, Hillary, 334 Coastal transboundary aquifer system, 429–30 Code of Hammurabi, 33 Colombia Amazon Cooperation Treaty (1978), 373 Asylum case (1950), 133 Colorado see United States of America Columbia Nitrogen Corp. v. Royster Co. (1971), 29–30 Commentaries on American Law (Kent), 91 Commission of the River Uruguay (CARU), 374–5 Common law on water rights corporeal property, 82–3 Embrey v. Owen, 89–93 geographical context, 66 legally problematic character, 70–2 medieval period, 72–8 natural rights, 80–1 prior appropriation, 81–4 judicial reception, 85–9 protection, 84–5

Index

reasonable use appurtenancy, 96–7 Embrey v. Owen, 89–93 groundwater rights, 93–6 principle, 93–7 sic utere principle, 78–80 water milling, 68–70 Community-of-interests in arbitral decisions, 237–40 equitable sharing and joint management, 226–7 integrated river basin management, 220–2 international agreements, 227–9 in international water policy, 240–3 joint governance bodies, 229–31 joint management, 215–9 in judicial decisions, 237–40 as legal theory, 213–5 shared ownership, 222–6 in treaty law UN Economic Commission for Europe (UNECE), 235–7 UN Watercourses Convention (UNWC), 231–5 competences see European water law Confidence Building and Stakeholder Involvement Project, 703 confined transboundary groundwaters, 298 Congo River, 669 absolute territorial integrity, 673 absolute territorial sovereignty, 674 limited territorial sovereignty, 674 riparian states, community of, 674–5 Cooperative Framework Agreement (CFA). See also Nile River Nile Basin Cooperative Framework contemporary state of, 657–8 contentious themes, 647–9 diplomatic confrontation, 658–61 embracing water security, 652–7 inception of, 645–7 Corfu Channel, 50 Corfu Channel case (United Kingdom of Great Britain and Northern

719

Ireland v. Albania) (1949), 128, 131, 634 corporeal property, 82–83 Co ˆ te d’Ivoire Watercourses Convention (1997), 166 Essy, Amara, 166 Fresco, 429 Niger River, 427 crystalline rock, 304 Cuareim River, 369 customary international law, 37–9, 49, 54, 56, 131–2, 139, 167, 217, 222, 232, 255, 318, 321, 323, 383, 391, 396, 428–9, 453, 471, 477, 505, 534, 573, 644–5 Czechoslovakia, 239 dam construction evaluation, 628 Harmon doctrine, 19, 51–6, 625–6 international panel of experts, 636–8 limited territorial sovereignty and integrity, 627–8 natural water flow, 626 optimum utilization, 626–7 purposes, 624–5 right of states procedural limits, 628–3 substantive limits, 633–5 World Commission on Dams (WCD) report, 635–6 Danish Watercourse Act, 113 Danube Convention, 18, 470 River, 18, 142, 238–9, 545–7 River Protection Convention (DRPC), 545–7 Dead Sea, 189–91 decision-making powers, 263–5 Declaration of Asuncio ´ n (1966), 371 De Legibus, 72 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), 137, 139 Denman, C.J., 88 De Republica (Bodin), 48 Desaguadero River, 366–7

720

Diama dam, 675 Digest of Justinian, 74 disconnection clauses, 571–2 Disi aquifer, 190–2 Diversion of Water from the Meuse case, 627 Doderidge, John, 80, 81 domestic state-based sovereignty and freshwater use, 490–2 water use, 179 Draft Article 3 on sovereignty, 300–1 Draft Declaration on Industrial and Agricultural Use (1933) dispute settlement, 363–4 duties, 363 international river stretches, 363 riparian states, 363 shared river stretches utilization, 362–3 territorial state, 364 Eagleton, Clyde, 540 East African Community of Protocol, 698–700 Eaton, B.H., 414 ecologically sustainable development (ESD), 491 Economic Commission for Europe (ECE) Convention, 559, 569, 570 Economic Community of West African States (ECOWAS), 424–5 economic potential as allocation criteria international level, 183–4 national level, 180 Nile River, 186 Ecuador Amazon Cooperation Treaty (1978), 373 Embrey v. Owen (1851), 68, 89–93 Emil River, 510, 525 England Commentaries on the Laws of England, 81 water milling, 68–70 water allocation system, 415–6 equitable development projects Amu Darya River, 186–7

A History of Water

Blue Nile River, 188 Disi aquifer, 190–2 Jordan River, 189–90 Limpopo River, 187–8 Oman and United Arab Emirates, 188–9 Songwe River, 192 Wadi Araba valley, 190 Yarmouk River, 189 equitable sharing and joint management, 217, 226–7 equitable utilization of international waters concept, 667 factors consideration, 678–81 and international freshwater resources, 359–61 Nile and Egypt, 667–70 Nile Treaty, 675–82 self-determination and permanent sovereignty, 670 sovereignty and control, 670–3 water security, 681–2 An Essay Concerning Human Understanding (Locke), 203–4 Ethiopia, 20 Cooperative Framework Agreement (CFA), 647, 649, 658 Nile River, 13, 20, 182, 188, 477, 605, 616, 679 future rights, 658 international panel of experts, 636–8 Renaissance Dam, 16, 636, 659–61, 679–80 Sixth Committee of the UNGA (1996–7), 159 UN Watercourses Convention (1997), 453 water distribution strategy based on hydrology, 185 based on population, 184 Water Resources Management Policy, 659 Euphrates, 33, 342, 390, 394, 396, 477, 624 European Economic Community (EEC) Treaty, 559, 561 European water law, 559 competences, 562, 568

Index

external, 564–567 internal, 563–564 shared, 563 development, 560–562 mixed agreements, 568 customary international law, 573 declarations of competence, 569–571 disconnection clauses, 571–572 river basin district, 221 Water Framework Directive, 562, 573–575 evolution of water law consumption of water, 33 cultural origins, 33 international water agreements, 36–9 law of sales of goods, 29 supranational water law, 35–6 traffic laws, 28 Uniform Commercial Code (UCC), 29–32 Expert Level Mechanism (ELM), 528 expropriation, 121–2 Fahmi, Aziza, 644 fallrett, 116 fallra ¨tt see fallrett Finland, 106, 261 Passage through the Great Belt, 225 and Russia border, 444–5 Commission, 443, 445, 456–60 Transboundary Water Commission (FRTWC), 442, 444 watercourse agreements, 454–8, 458–60, 460–2 Sixth Committee of the UNGA (1996–7), 159 Tana River, 125–6 Finnish-Russia Frontier Watercourses Agreement see Frontier Watercourses Agreement between Finland and Russia (1964) Finnish-Swedish Frontiers Rivers Commission (FSFRC) decision-making powers, 263–5 initiative, freedom to act, 265–7 scope of management, 267–9 sovereignty in, 261–2

721

supranational commission, 262–3 Fisheries Jurisdiction (Spain v. Canada), 133 Fitzmaurice, Sir Gerald, 671 Fomi Dam, 428 foreign investment Australian water law, 503–504 and Takeovers Act 1975, 492 Fort Collins, 414 Framework Agreement on the Sava River Basin (FASRB), 544, 548–549 France De Republica, 48 Lake Lanoux arbitration (1957), 38, 238. 319–22 Minquiers and Ecrehos (France v. United Kingdom), 136 Rhine River, 7–9 Schooner Exchange v. McFaddon, 54 Westphalia Peace Agreement (1648), 5–8 Fremont, John Charles, 403, 404 freshwater resources Australian water law, 490–2 equitable utilization, 359–61 sharing dilemma, 47, 57, 60, 212, 245 Frontier Dispute (Burkina Faso v. Republic of Mali), 130, 136 Frontier Watercourses Agreement between Finland and Russia (1964) Article 1–5, 455 Article 6–8, 10, 12 and 13, 456 Article 8, 9, 10, 11, 12 and 19, 457 Article 9, 10, 12 and 13, 456–457 Article 11, 457 Article 13, 457 Article 15, 456 Article 19, 458 and Central Asian water agreements, 460 commission, 458–460 cooperation and information exchange, 453 equitable and reasonable utilization, 449 and Ganges River treaty, 461

722

Frontier Watercourses Agreement between Finland and Russia (continued) and Mahakali River treaty, 461 neighbouring countries, 443 ‘no harm’ principle, 449, 453 notification, consultation and negotiation, 453–4 peaceful settlement of disputes, 454 transboundary watercourses, 445 transboundary water resources management, 450–452 UN Watercourses Convention parties, 444 Gabcˇ´ıkovo–Nagymaros Project (Hungary v. Slovakia), 60, 142, 239, 252, 361, 522, 628, 633, 642 Ganges Treaty (1996), 450–1, 461, 511 Genevese aquifer, 308–9 geological boundaries, 306 Germany Rhine River, 7–9 Westphalia Peace Agreement (1648), 5–8 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 132 Global Water Security, 336 Goldie, Louis Frederick Edward, 672 Goodhart, Arthur Lehman, 30 Grand Ethiopian Renaissance Dam, 16, 636, 659–61, 680 construction site, 660 stretch map, 661 Great Manmade River, 680 Greeley Number Three Irrigation Ditch, 413 green sand, 305 Grey, David, 256–257 Grotius, Hugo, 214, 466 Guarani Aquifer Agreement (2010), 377–8 Aquifer System (GAS), 299, 310–1, 360, 376 GAS Agreement, 310–1 Gulathing code, 109–10, 114 Guyana

A History of Water

Amazon Cooperation Treaty (1978), 373 Gulf of Guinea, 429–430 Hadith, 385, 387, 389, 390, 393, 395 Harmon, Judson, 52–53 Harmon Doctrine, 51–6. See also Rio Grande Treaty theory, 625–6 Hart, Herbert Lionel Adolphus, 28 Hartig, Edmund, 224 Hefny, Ali, 660 Heilongjiang River, 510, 523 Held, David, 282 Heligoland Treaty (1890), 584 Helsinki Convention (1992), 631 rules, 37–8, 656, 675 Rules on the Uses of the Waters of International Rivers, 217 Herren der Vertrag, 555 history as allocation criteria international level, 183 Nile River, 185–6 Holmes, Oliver Wendell, 407 Huber, Max, 223 Hunter, David, 215 hydrology as allocation criteria, 302 international level, 182 Nile River, 185 Hydromet Survey Project Agreement, 695–6 Ijma, 385 Ijtihad, 385–6 Ili River, 510, 525 Illah, 385 incorporeal property, 82 India, 515 Farakka Barrage, 13 Ganges Barrage, 13 Indus Waters Kishengange, 143 Indus Waters Treaty (1960), 15, 19, 470 Passage over Indian Territory (Portugal v. India), 134 Indonesia Association of Southeast Asian Nations (ASEAN), 479–84 ASEAN Marine Heritage Area, 483

Index

‘Heart of Borneo’ initiative, 482–3 Spratly Islands claim, 484 Industrial Concession Act (1917), 117, 121 inland transboundary aquifers, 430–2 Institutes of Justinian, 73 institutional framework international institutions, 177–8 national institutions, 177 integrated river basin management, 220–2 integrated water resources management (IWRM) plan, 590 InterAction Council (IAC), 334–335 International Commission for the Protection of the Danube River (ICPDR), 546, 548 International Court of Justice (ICJ), 48, 628, 642 International drainage basin, 221 International human rights law, 49 International Law Association (ILA) Berlin rules, 221–2, 286–8, 656 Helsinki Rules, 37, 39, 152 International Law Commission (ILC) Article 3, 57 freshwater flowing, 58–59 location of water flow, 59 natural resources, 58 transboundary aquifers draft, 56–61 United Nations General Assembly (UNGA), 150–2 International panel of experts (IPoE) by Ethiopia, Egypt and Sudan, 636–8 future steps, 637–8 structure and role, 637 See also dam construction International Status of South West Africa and Western Sahara, 134–5 Irtysh River, 510, 523, 525 Islamic legal tradition amendable and fixed laws, 384 categorization of water resources, 390–1 Ijtihad, 385–6 Khalifa, 386 during Ottoman Empire, 386–7 principles by Prophet, 389 Qur’an, 384–5, 388

723

Siyadah, 383 transboundary water resources, 391–4 water law development, 388–90 Island of Palmas (USA v. The Netherlands), 128, 467 Istanbul Ministerial Statement, 240–1 Iullemeden Aquifer System (IAS), 430–1 Jackson, George, 27 Jacob River, 125 Joint governance bodies, 229–31 Joint management, 215–9, 222, 235 Joint water sovereignty, 141–2 Jones v. Powell (1629), 78–79 Jordan Disi aquifer, 190 economic value of water, 180 Jordan River, 189–90 Jus cogen, 694 Jydske law, 108–9 Jyske Lov, 107 Kagera Basin Agreement (1977), 696–7 Organization (KBO), 675 Kariba Dam project, 583 karstic aquifers, 305 Kasikili/Sedudu Island (Botswana v. Namibia), 135, 140 Kaunda, Kenneth, 587 Kazakhstan Agreement on Protection of Water Quality of Transboundary Rivers, 521 Sino–Kazakhstan Agreement on Management System of China–Kazakhstan Border (2006), 521, 525 Sino–Kazakhstan Agreement on Mutual Exchange of Hydrology and Water Quality Data of Major Border Hydrological Stations in Transboundary Rivers (2006), 521 Sino–Kazakhstan Cooperation Agreement on the Utilization and Protection of Transboundary Rivers (2001), 520, 521, 527

724

Kazakhstan (continued) Sino–Kazakhstan Joint Commission on Utilization and Protection of Transboundary Waters, 521, 527 transboundary water with China, 508, 510, 514, 520, 522–5 Kelsen, Hans, 30 Grundnorm, 30 Keta Basin, 429 khalifa, 386 Khandaji Hydroelectric Dam, 428 Klara River, 125 Kyrgyzstan, 508, 510, 515 Lake Victoria Protocol, 700–1 Lancang River, 511 challenges, 530 China’s practice, 531–3 developing, 532 downstream countries benefits, 532–3 information and data supply, 531–2 origination, 528–30 water quality, protecting and improving, 533 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), 131, 137 Land Code (1274), 108–9 Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), 129, 141 Lanoux, Lake, 238 arbitration, 317, 319–322 case , 627, 631, 673 Lao People’s Democratic Republic (PDR), 470 Agreement on Commercial Navigation on Lancang/Mekong River, 532 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (1995), 470, 483, 530

A History of Water

Association of Southeast Asian Nations (ASEAN), 479, 483 Law Enforcement Cooperation Mechanism, 528 Sino–Laos Treaty on Border System (1993), 520 transboundary water with China, 508, 511, 515, 531 La Plata Basin region, 365, 370 Treaty (1969), 371–2 Law of Moses, 33 Law of Transboundary Aquifers, 299–300 Laws of Manu, 33 Le Blanc, Joseph, 86 legal and institutional management mechanisms, 234 legal positivism, 27 Lesotho, 20 Liberal Constitutionalists’ Party, 606 limited territorial sovereignty and integrity theory, 627–8 Limpopo River, 187–188 Lipper, Je´ro ˆ me, 667, 673 Lisbon Treaty (2007), 560, 565, 571 Littledale, Joseph, 86 Llewellyn, Karl, 29 Lockean rights, 200 theory, 197–9 Locke, John, 197 Lord Ellenborough, C.J., 86, 87 Lugano Convention (1988), 565 Luttrel’s Case, Cottel v. Luttrel, 81 MacDonald, Murdoch, 611 MacDonald, Ramsey, 608 MacGregor, R.M., 610–1 Madrid Declaration (1911), 20–1 Mahakali River treaties, 461 Malaysia ASEAN Marine Heritage Area, 483 ASEAN Turtle Conservation and Protection Memorandum of Understanding, 482–3 Association of Southeast Asian Nations (ASEAN), 479, 480 ‘Heart of Borneo’ initiative, 482–3

Index

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), 129, 135, 137 Spratly Islands claim, 478 Mali Fomi Dam dispute, 428 Frontier Dispute (Burkina Faso v. Republic of Mali), 130, 136, 137 Iullemeden Aquifer System (IAS), 430 Organisation pour la Mise en valeur du Fleuve Se´ne´gal (OMVS), 674 Senegal River protection, 258, 674 Tauodeni/Tanezrouft Aquifer Systems (TAS), 431 Manantali Dam, 675 Maplecroft Risk Index, 336 Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), 136, 138 Marshall, James W., 406 Mason v. Hill (1833), 87, 88, 90, 93 Mauritania, 431 Organisation pour la Mise en valeur du Fleuve Se´ne´gal (OMVS), 674 Senegal River protection, 258, 674 mayordomo, 402 McCaffrey, Stephen C., 218, 219, 316, 676 McIntyre, O’Brien, 595 McKinsey Report, 336 Mekong River see Lancang River Basin, 470 Commission (MRC), 515 Mesopotamia, 33, 399 Mexico Draft Declaration (1933) reservation, 362 Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, 51, 55 ILC draft articles (1994), 160–1 Independence from Spain, 403–4, 406 Mexican–American War (1846–8), 407 Rio Grande controversy with the USA, 51–3, 215

725

Sixth Committee of the UNGA (1996–7), 159 Spanish settlers’ water systems, 401–2 Miller, David, 198 Miner v. Gilmour (1858), 92 The Minquiers and Ecrehos (France v. United Kingdom), 136 Mirim Lagoon Basin, 367–8 Mithaq al-Madinah, 387 mixed agreements, 568 customary international law, 573 declarations of competence, 569–71 disconnection clauses, 571–2 modern legislation development of, 112–3 international law, 48 watercourses in, 110–2 Mongolia Heilongjiang River, 523 Ob River, 523 and transboundary with China, 508, 510, 514 Sino–Mongolia Agreement on Protection and Utilization of Border Water (1994), 521, 526 Sino–Mongolia Joint Commission on Border Waters, 526 Sino–Mongolia Treaty on Management System of Border (2010), 521 Morsi, Mohamed, 658, 660 Mox Plant case, 569, 570, 571, 573 multilateral environmental agreements (MEAs), 544–5 Munkelva River, 126 Muonionjoki River, 442 Murray Darling Basin, 491–493 Basin Commission (MDBC), 495–6 Myanmar Agreement on Commercial Navigation on Lancang/Mekong River (2000), 532 Association of Southeast Asian Nations (ASEAN), 483 Cooperation for the Sustainable Development of the Mekong River Basin (1995), 470–1

726

Myanmar (continued) Core Environment Program, 483 Lancang/Mekong River, 528 Law Enforcement Cooperation Mechanism, 528 Sino–Myanmar Agreement on China– Myanmar Border Management and Cooperation (1997), 520 transboundary water with China, 508, 511, 515, 520 Naatamojoki River, 442 National Audubon Society v. Superior Court, 421 national level criteria, allocation for changing role of water, 179 domestic water use, 179 economic productivity of water, 180 employment-generating tool, water, 180 National People’s Congress (NPC) laws enacted by, 517–8 National Water Planning Report Card, 503 natural law, 73, 74 natural recharge, 302–303 natural rights, 80–81 character and scope, 74 natural water flow theory, 626 Neiden River, 125–126 Nepal, 515 New South Wales, 448–50 Nicaragua v. United States of America see Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 131 Niger Basin Authority (NBA), 426, 428 Basin Water Charter (2008), 426 Iullemeden Aquifer System (IAS), 430–1 River, 427 Nigeria, 427 Iullemeden Aquifer System (IAS), 430–1 Land and Maritime Boundary between Cameroon and

A History of Water

Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), 131, 137 Niger River, 427 Rima River, 434 Nile Basin. See also Cooperative framework agreement (CFA) added values, 653 cooperative framework, river, 642–3 customary law, 645 Egyptian property, 643 emerging concept, 642–3 international watercourses law prescriptions, 642 legal regime constitution, 643–5 natural and historical rights, 644 parity of rights, 644 prism of ‘water security,’ 641 progressive evolution of, 645 Initiative Arrangement (NBI), 702–5 Regional Power, 703 Nile Council of Ministers (Nile-COM), 646 Nile River Basin Cooperative Framework 2010 agreement, 706 equitable utilization of international waters concept, 667 factors consideration, 677–80 Nile–Technical Advisory and Negotiators Committees (Nile–TAC), 647 Nile Transboundary Environmental Action Project, 702 Nile Treaty, 675–82 self-determination, 670 sovereignty and control, 670–3 water security, 680–2 Nile Waters Agreement (1929), 601 Allenby ultimatum of 1924, 606–9 change in British tactics and, 608–9 Colonial Office in London, 609, 616, 617 exchange of notes, 602–3, 615–8 Foreign Office in London, 608, 609, 613, 616, 617 geopolitical instrument, 605–6 international water law, 618–9 pre-colonial water agreements, 693 state sovereignty, 618–9

Index

Nile Waters Commission (1925), 609–612 non-governmental organizations (NGOs), 581, 585 North Korea, 514 Sino–North Korea Agreement on Joint Construction, Management and Maintenance of Border–River Road Bridge on Yalujiang River (2012), 522 Sino–North Korea Agreement on Navigation Cooperation in Border Rivers (1960), 521, 526 Sino–North Korea Cooperation Committee, 526 Sino–North Korea Cooperation Agreement on Hydrologic Work of Yalujiang River and Tumenjiang River (1978), 521 Sino–North Korea Rules for Vessel Navigation in the Border Rivers of China and Democratic People’s Republic of Korea (1982), 521 Songhuajiang River, 523 Transboundary water with China, 508, 510, 514, 523–4 North Sea Continental Shelf (Germany v. Denmark–Germany v. Netherlands), 138 Norway Act on Watercourses (1940), 114–5, 122–3 Act on Watercourses (1987), 113, 115 Act on Watercourses (2000), 112, 114 Frostathing Code, 108 Land Code, 110–1 Water Resources and Energy Directorate, 121 Nuclear Tests (Australia v. France), 316 Nujiang-Salwee River, 511 Nyerere Doctrine on State succession, 690 Ohrid Management Committee, 549 Okavango River, 477 Olney, Richard, 52 Oman, 188–9

727

Opinio juris sive necessitates, 671 optimum utilization theory, 626–7 Organisation pour la Mise en valeur du Fleuve Se´ne´gal (OMVS), 675 Organization of American States (OAS), 365 Ortnavien, 6 Oslo/Paris convention (OSPAR) Agreement, 570 Ottoman Empire Islamic legal tradition, 386–7 overlapping borders bilateral borders, 205, 209 holistic control, 209 peaceful jurisdictional overlap, 209–10 state borders, 197 in twentieth century, 196–7 overshot wheels, 69 Owen Falls Dam Agreements, 690–2 ownership concept development, 110–2 definition, 124 of groundwater, 119–20 private development, 108–10 regulations and limitations of, 113–5 Scandinavia model in, 123–4 utilization, 116–7 of water, 70–72 watercourses of, 107, 115 Paatsjoki River, 442 Paatsjoki watersheds, 446, 448 Pacta sunt servanda, 671 Pacta teriis res naucent nec prosunt, 679 Paraguay Act of Asuncio ´ n on the Use of International Rivers (1971), 368, 372 Agreement on Parana´ River projects (1979), 373 Bi-national Administrative Commission, 370 Declaration of Asuncio ´ n (1966), 371 Guarani Aquifer System, 299, 310–1, 360, 376 La Plata Basin, 365, 368–70 La Plata Basin Treaty (1969), 371–2

728

Paraguay (continued) Parana´ River, 359, 368, 371, 373 Pilcomayo River, 360, 369–70 Treaty of Yacyreta´ (1973), 368, 370 Parana´ River, 368, 371, 373 Parke, B., 90–91 Pasha, Ahmad Ziwar, 607 Passage through the Great Belt (Finland v. Denmark), 225 Pasvik River, 125–6 Pearl River, 511 People’s Republic of China (PRC) see China Pepirı´-Guazu ´ , 368 Permanent Court of International Justice (PCIJ), 128, 627, 642 Peru Amazon Cooperation Treaty (1978), 373 Asylum case (1950), 133 Desaguadero River, 366 Poopo ´ Lake, 366 Salar of Coipasa, 366 Titicaca Lake Basin, 366–7 Philippines ASEAN Marine Heritage Area, 483 ASEAN Turtle Conservation and Protection Memorandum of Understanding, 482–3 Association of Southeast Asian Nations (ASEAN), 479, 480 Spratly Islands, 484 Pilcomayo River, 369–370 Poopo ´ , Lake, 366–367 population as allocation criteria international level, 181–182 Nile River, 184–185 Portugal Cahora Bassa Dam, 587 Case Concerning East Timor (Portugal v. Australia), 670 Passage over Indian Territory (Portugal v. India), 134 Soares, Mario, 278 Prespa Park Agreement, 549–51, 554 Management Committee (PPMC), 549–51

A History of Water

prior appropriation, 81–4 judicial reception, 85–9 procedural rules of international water law aims, 318–9 methodology, 318–9 data and information exchange, 326–8 general obligation to cooperate, 325–6 planned measures consultations, 329–30 negotiations, 329–30 notification, 328–9 Pulp Mills case, 322–5 significance, 317–8 prohibition of threat, 130–1 pueblos, 403 Pulp Mills on the River Uruguay (Argentina v. Uruguay), 143, 224, 240, 322–5, 631 Qiyas, 385 Qur’an, 384–385, 388 Quarai River see Cuareim River Rawstron v. Taylor (1855), 94 reasonable use appurtenancy, 96–97 Embrey v. Owen, 89–93 groundwater rights, 93–96 principle, 93–97 Recopilacio ´n de leyes de los Reynos de las Indias, 402 Red River, 511 res inter alias acta, 679 res publica jure gentium, 538 Revised Maputo Convention (2003), 426 Rhine River, 6–8, 539 Treaty (1815), 8–10 right of states assessments, 632–633 environmental impact exchange of data and information, 630 ‘no harm’ principle, 634–5 notification and consultation, 630–632

Index

obligation of, 628–629 principle of, 629 procedural limits substantive limits equitable, 633–4 reasonable utilization, 633–4 right to water. See also water rights 1997 Convention, 276 human ownership, 35, 75, 78, 113–5, 276–9, 551–2 integration of human rights system, 279–80 international level, 273–88 Berlin Rules, 286–8 classic international law paradigm, 284–6 non-contractual nature of human rights, 281–3 World order v. Westphalian order, 283–4 Mar del Plata, 275 market-driven, 86, 111–2, 276–9 safe-drinking water, 274 sanitation, 274, 339 self-determination, 288 state sovereignty, 288, 551–2, 592 Rio + 20, 485–6 Rio de Janeiro, 277 Rio de la Plata River Treaty, 368, 370, 371, 374 Rio Grande River, 19 Rio Grande Treaty, 51–6. See also Harmon Doctrine Rio principle 2, 670 Riparian law, 493–494 River Oder case, 252, 628, 642 Rocky Mountain, 399, 400 Roman law, 37, 72, 88, 124, 214, 538 Ruggiero, Renato, 283 Russia and China border, 514 Joint Commission, 527–8 protocols on maritime transportation, 521 Sino–Russia agreements, 520–2, 524, 527 Sino–Russia Agreement on Reasonable Utilization and

729

Protection of Transboundary Waters (2008), 527 Sino–Russia Joint Commission on Rational Use and Protection of Transboundary Water, 527 Transboundary Water Body, 521 and Finland border, 444–5 Commission, 443, 445, 456–60 Transboundary Water Commission (FRTWC), 442, 444 watercourse agreements, 454–8, 458–60, 460–2 and Norway Transboundary agreement, 125, 443 Sadoff, C., 256–7 Safouan, M., 386 Salar of Coipasa, 366–7 Sales of goods, 29 Salto Grande Area, 367 Sampson v. Hoddinott (1857), 92 Saunders v. Newman (1818), 87 Sava River Basin, 547–9 Scandinavian water law characteristic element of, 107 concession systems, 120–1 economic development in, 106–7 industrialization, 112–3 international relations, 105 lakes, 118–9 legal development in, 106–7 political development in, 106–7 rivers, 118–9 Schermers, H.G., 254 Schooner Exchange v. McFaddon, case, 54 Sedudu Island, 135, 140 Senegal Basin, 225 Organisation pour la Mise en valeur du Fleuve Se´ne´gal (OMVS), 674 River protection, 258 shared competence in EU water law, 563 Shared Vision Programme (SVP), 702 Shuifenhe River, 510, 523–524 sic utere principle, 68, 78–80

730

sic utere tuo ut alienum non laedas, 84, 453, 627, 672 Singapore, 479, 480 Siyadah, 383 Skaanske Lov, 108 Smith, Herbert, 55 Smith v. Kenrick (1849), 94, 95 Song-a-cha River, 523 Songwe River, 192 South Africa Development Community (SADC), 178, 669 Development Coordinating Conference (SADCC), 588–9 Limpopo River, 187 South China Sea, 478, 484 Southeast Asia Association of Southeast Asian Nations (ASEAN), 466 environmental security, 477–479 law transition, 471–474 natural resources, 479–485 permanent sovereignty, 468–469 rights and duties, 474–477 Rio + 20, 485–486 state sovereignty, 466–468 transboundary natural resources, 469–471 Sovereignty over Certain Frontier Land (Belgium v. Netherlands), 136 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), 129, 137 Spear T. Ranch Inc. v. Melvin G. Knaub, 420 Stack, Lee, 606–7 state sovereignty, 540–2 freedom political system, 131–2 Nile Waters Agreement (1929), 618–9 prohibition of threat, 130–1 reservations to treaties, 133–4 right recognized to the extent necessary, 134 right to immunity, 132–3 Section 100, 492–4 sovereign equality, 132–3 sustainable development, 142–3

A History of Water

territorial sovereignty, 135–40 use of force, 130–1 water boundaries, 140–1 Zambezi River Basin, 580–4 Statute of Barcelona, 537 Stockholm. See also Sweden Convention case, 566–7 principle 21, 670 Stockport Waterworks Co v. Potter (1864), 97 substantive provisions, 233–234 Sudan, 636–8 summa potestas, 251 Sunnah, 385, 387 supranationality cooperation, 256 economic development, 258–9 environment, 259 management of watercourse, 255–6 organizations, 253–5 security, 257–8 sovereignty, 259–60 Sur Darya, 186–7 Suriname Amazon Cooperation Treaty (1978), 373 Sury v. Pigot (1625), 80 Sweden, 106–7, 261. See also Stockholm Environmental Act, 114 Finnish-Swedish Frontiers Rivers Commission, 253, 261–9, 443 Klara River, 125 landscape codes, 109 medieval law, 108 ownership of groundwater, 119 public ownership of water, 115 things (local assemblies), 107 Water Act (1918), 121, 122 water-drive log regulation, 111–2 Swindon Waterworks Co v. Wilts and Berks Canal Co (1875), 97 Syria Al-Wehda Dam, 189 Jordan River, 189 Yarmouk River, 189 tabula rasa theory, 690 Tajikistan

Index

Amu Darya, 186 Transboundary water with China, 508, 510, 515 Tana River, 125 Tano Basin, 429 Tarim Basin, 510 Tarlock, D., 654 Tauodeni/Tanezrouft Aquifer Systems (TAS), 431–2 TECCONILE Agreement (1992), 697–8 Temple of Preah Vihear (Cambodia v. Thailand), 140 Tenojoki River, 442 Territorial Competence of the River Oder Commission case, Territorial Jurisdiction of the International Commission of the River Oder case, 237, 627 territorial rights adding land to political legitimacy, 197–9 border towns, 201 Lockean rights, 200 overlapping borders, 196–7, 205–6, 209–10 region, 200–1 resources, 200 rivers, 202–9 territorial sovereignty, 216–7 acquiescence role, 136–7 delimitation disputes, 137–8 and international water law, 315–6 land rights, 138–40 maritime rights, 138–40 titles of, 135–6 Westphalia, 6 Thailand, 470, 479 Association of Southeast Asian Nations (ASEAN), 479, 480 Quadripartite Economic Cooperation Initiative, 483 Temple of Preah Vihear (Cambodia v. Thailand), 140 transboundary water with China, 508, 511, 515 Thalweg des Hauptlaufes, 140 The Hague, 278 Tindal, C.J., 93–94

731

Titicaca Lake Basin, 366–7 Tomuschat, 329 Torninjoki River, 442 ‘Towards an Energy Policy for southern Africa’ (1982), 588 Trail Smelter see United States of America and Canada transboundary aquifers aquifer balance, 308–9 boundary conditions, 305–7 characteristics, 303–5 confined transboundary groundwater, 298 Draft Article 3 on sovereignty, 300–1 Draft Articles on sovereignty, 297–301 Guarani Aquifer System (GAS) Agreement, 310–1 hydrogeological study, 302 inputs and outputs, 307 Law of Transboundary Aquifers, 299–300 natural recharge, 302–3 shared natural resources, 297–8 UNECE draft model provisions, 311 versus groundwater, 301–2 transboundary waters equitable sharing and joint management, 226–7 international agreements, 227–9 and international lakes, 38 Islamic legal tradition, 391–4 West Africa coastal transboundary aquifer system, 429–30 collaborative management of surface waters, 425–6 inland transboundary aquifers, 430–2 Niger Basin Water Charter (2008), 426 Niger River, 427 Revised Maputo Convention (2003), 426 state practice, 428–9 Treaty of Yacyreta´, 368, 370 Treaty on the European Union (TEU), 560 Treaty on the Functioning of the European Union (TFEU), 560

732

Trysil River, 125 Tumenjiang River, 510 Uganda agreement for between United Kingdom and Egypt, 692 agreement implications, 692–5 Cooperative Framework Agreement of the Nile (CFA) (2010), 705 East African Community of Protocol, 698–700 Hydromet Survey Project Agreement, 695–6 international water agreements, analysis of, 688 Kagera Basin Agreement of 1977, 696–7 Lake Victoria Protocol, 700–1 Memorandum of Understanding, 700 natural resources management, 699–700 Nile Basin Initiative Arrangement, 701–4 post-independence agreements, 695 pre-independence agreements, 688–692 TECCONILE Agreement (1992), 697–8 UN Charter, 335, 337–8, 474 UN Committee on Economic, Social and Cultural rights (CESCR), 279 UN Convention (1997) Article 6/2, 632 Article 21/3, 632 Article 33, 632 Article 5 and 6, 634 Articles 9 and 11, 630 Articles 11–19, 631 UN Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWC), 26, 36, 56, 151, 255, 316, 319, 338–9 Article 8, 340–2 geographic scope, 232–3 institutional management mechanism, 234 joint action, 235

A History of Water

legal mechanism, 234 procedural norms, 235 substantive provisions, 233–234 UN Convention on the Law of the Sea (UNCLOS), 476, 534, 569, 671 UN Economic Commission for Europe (UNECE), 38, 544 1999 protocol, 38 draft model provisions, 311 Transboundary Watercourses and International Lakes (UNECE TWC), 338, 339, 341 Water Convention, 164, 215, 229, 235–7, 544 UN Environmental Programme (UNEP), 589–90 UN Human Development Report, 650–651 UN Water Conference, 1977, 471 undershot wheels, 69 Uniform Commercial Code (UCC), 29–32 United States of America boundary water with Canada, 626 California gold rush, 406–9 gold rush handbill, 406 Colorado climate, 411 Denver, 400, 401, 412, 413, 419 future water issues, 420–1 geographical context, 410 gold rush, 412–3 groundwater use conflicts, 417–20 River Compact, 206 South Platte River Basin, 411 transboundary waters, 417 water law system development, 413–5 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), 137, 139 ‘no harm’ principle, 634 Organization of American States (OAS), 365 traffic laws, 28

Index

Trail Smelter dispute with Canada, 50, 634, 672 Views of Louisiana (Brackenridge), 404 westward expansion, 403–405 Uruguay Cuareim/Quaraı´ River, 369 Draft Declaration (1933), 362–6 Guarani Aquifer System, 299, 310–1, 360, 376 La Plata Basin, 365, 368–70 La Plata Basin Treaty (1969), 371–2 Mirim Lagoon agreement (1963), 367–8 Pulp Mills on the River Uruguay (Argentina v. Uruguay), 143, 224, 240, 322–5, 631 River, 367 River Statute (1975), 373–6 uti possidetis iuris, 136 Venezuela Amazon Cooperation Treaty (1978), 373 Draft Declaration on the Industrial and Agricultural Use of International Rivers (1933), 362 Vienna Convention on the Law of Treaties, 571–2 Vietnam, 470 Association of Southeast Asian Nations (ASEAN), 479 Joint Statement for Future Cooperation, 531 Sino–Vietnam Agreement on Management System of China–Vietnam Land Border (2009), 520 Sixth Committee of the UNGA (1996–7), 159 Southeast Asia is the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (1995), 470 transboundary water with China, 483, 508, 511, 515 Views of Louisiana (Brackenridge), 404 Vislie, Arne, 119 Vuoksi Rivers, 442 Vuoksi watersheds, 446, 447

733

Wadi Araba valley, 190 Water Act 1983, 119 2007, 491–2 water bucket system, 207–8 Water Framework Directive (WFD), 562, 574–5 Water Management Act (2000), 498–500 water milling England, 68–70 Industrial Revolution, 68–70 water-powered fulling, 68 water wheels, 69 water productivity, 180, 186 Water Resource Act (2000), 115, 119, 122 water rights legally problematic character, 70–2 medieval period, 72–8 reasonable use appurtenancy, 96–7 Embrey v. Owen, 89–93 groundwater rights, 93–6 principle, 93–7 as servitudes, 72–8 water security, 681–2 concept of, 649–52 cooperate and, 337–8 current uses and rights, 657 embracing, 652–7 international waters, 335–7 issues related to, 337 national sovereign claims on shared through international water law, 342–3 treaty and state practice, 338–40 UNWC Article 8, 340–2 watercourse international management, 125–126 in medieval law, 108–110 ownership of, 107 private ownership of, 115 public governance and control, 120 undertaking, 122–123 utilization, 118 Watercourse Act 1811, 111 1887, 112

734

Watercourse Act (continued) 1940, 112–3, 115, 122 1978, 113 1983, 113 West Africa, 225 coastal transboundary aquifer system, 429–30 dynamics of management, 432 geological and hydrological contexts, 430 inland transboundary aquifers, 430–2 institutional development, 432–3 land subsidence, 434 quality issues, 433–4 surface flows, 434–5 groundwater dynamics of management, 432 geological and hydrological contexts, 430 institutional development, 432–3 land subsidence, 434 quality issues, 433–4 surface flows, 434–5 legal and institutional challenge, 437–8 regional water policy, 435–7 transboundary waters collaborative management of surface waters, 425–6 inland transboundary aquifers, 430–2 Niger Basin Authority (NBA), 428 Niger Basin Water Charter (2008), 426 Revised Maputo Convention (2003), 426 River Niger, 427 state practice, 428–9 system, 429–30 Western Sahara case (1975), 135 Westphalia birth and subsequent dominance, 4–5 Danube Convention, 18 geography and hydrology, 19 international discourse on, 4 myth of ‘post-Westphalia’ absolute territorial sovereignty, 12

A History of Water

environmental interdependencies, 11–2 multi-layered global governance, 11 transboundary water management, 12–3 Peace Treaty, 4–6 Rhine Treaty, 8–10 sovereignty, 541 state actors and conflict realists, 14–5 neo-realists, 14–5 river basins, 15–7 ecological conditions, 15–7 between sovereign states, 15 territorial sovereignty, 6 water law, 17 West Philippine Sea, 478, 484 William Aldred’s Case (1610), 78 Williams v. Morland (1824), 86 Windhoek Treaty (1992), 590 World Commission on Dams (WCD), 635–6 World order v. Westphalian order, 283–4 World Water Council (WWC), 277 World Water Day, 276 Wouters, P., 654 Wusulijiang River, 523 Yalujiang River, 510 Yarlung Zangbo River, 511 Yarmouk River, 189 Young, Brigham, 405 Yuanjiang River, 511 Zaire River see Congo River Zambezi River Basin, 578–97 Environmentally Sound Management of the Common Zambezi River System (ZACPLAN), 589–90 globalization, 578, 584–6 integrated water resources management (IWRM) plan, 590 international waters, 578, 580–4, 584–6 nationalism, 578, 580–4, 588–90 ‘significant harm’, 593

Index

southern Africa Development Coordinating Conference (SADCC), 588–9 Water Protocol, 590–1, 593 state sovereignty, 580–4, 588–90 water developments, 586–588 Baynes Hydropower Project, 583 Cahora Bassa Dam, 579, 586, 587 Kafue project, 586–7 Kariba project, 586–7

735

Rhodesia, 586–7 Zambezi IWRM Strategy (ZAMSTRAT) 591, 593–5 Zambezi Watercourse Commission (ZAMCOM) Agreement, 591–6 Zambia Kaunda, Kenneth, 587 ZAMSTRAT, 593–595 Zuojiang River, 511