Brill Research Perspectives in International Water Law – serie

In Transboundary Water Cooperation in Europe, Götz Reichert analyzes the multidimensional regime for the protection and management of European transboundary freshwater resources that is composed of international water law, the water law of the European Union, and domestic water legislation. Accordingly, qualitative and quantitative aspects regarding surface waters and groundwater are to be managed in an integrated manner to achieve “good water status” of rivers, lakes and aquifers. To this end, “international river basin management plans” provided for by the EU Water Framework Directive are developed by international river commissions for Europe’s major transboundary river basins. Götz Reichert analyzes the various dimensions of the regime including their legal interlinkages and considers the question of whether it is successful in achieving its ambitious goals.

In Transboundary Offshore Aquifers: A Search for a Governance Regime, Renee Martin-Nagle explains the geologic origins of offshore freshwater aquifers and proposes a governance regime for offshore aquifers that are shared by two or more nations. While the existence of freshwater offshore aquifers under continental shelves has been known for decades, none discovered thus far straddle an international border. In the event that an offshore aquifer shared by two or more nations is identified and targeted for development, selection of a governance regime for the aquifer will present a unique challenge, and several current legal systems could provide valuable guidance. While laws addressing transboundary land-based aquifers are still in a nascent stage, customary international law for surface water has evolved over centuries and could provide analogous rules for development of another freshwater resource. This monograph explores principles for sharing natural resources and proposes a governance regime for transboundary offshore aquifers.

In Freshwater Boundaries Revisited, María Querol analyzes the different methods applied in the delimitation of international rivers and lakes and the recent developments in the field. This monograph reassesses the diverse methods of boundary delimitation in view of the latest and abundant jurisprudence of the International Court of Justice and the tribunals under the aegis of the Permanent Court of Arbitration on the subject. The author focuses on the influence of human considerations in the field under study and the legal consequences ensuing therefrom, in addition to drawing some conclusions regarding freshwater boundaries.

In The Protection of Water During and After Armed Conflicts: What Protection in International Law?, Mara Tignino offers an analysis of the principles and rules protecting water in situations of armed conflicts. The monograph also gives insights on the legal mechanisms open to individuals and communities after a conflict. Practice of international organizations and judicial decisions are examined in order to define the contours of the norms dealing with armed conflicts and post-conflict situations. Beyond international humanitarian law, the author suggests that other areas of international law should be taken into account such as human rights law and international water law. This comprehensive view aims at preventing damage to water resources and ensuring access to safe drinking water. Given the fragmentation of instruments and norms dealing with water in times of armed conflicts, it requires an in-depth examination of what means of international law may be developed to ensure a better protection to water.

Entry into force of the UN Watercourses Convention in August 2014, and the opening of the UNECE Water Convention to all states in March 2016, are significant milestones in international water law. A comparative analysis of these two global water conventions and the 1995 Mekong Agreement reveals that all three instruments are generally compatible. Nonetheless, the international legal principles and processes set forth in the two conventions can render the Mekong Agreement more up-to-date, robust and practical. The Governance Regime of the Mekong River Basin: Can the Global Water Conventions Strengthen the 1995 Mekong Agreement? contends that strengthening the Agreement would be timely, given the increasing pressures associated with the rapid hydropower development within the basin and the gradually emerging disputes therein. Due to these fast-moving developments, Kinna and Rieu-Clarke strongly recommend that the Mekong states should seriously consider joining both conventions in order to buttress and clarify key provisions of the 1995 Mekong Agreement.

In The Fairness ‘Dilemma’ in Sharing the Nile Waters, Zeray Yihdego enquires into the fairness issues in connection with the construction of the Grand Ethiopian Renaissance Dam (GERD) in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international watercourses law. The GERD is now a fait accompli, but fairness considerations will continue to be vital issues during its construction, filling, and operation. This monograph argues that the GERD is a symbol of a fair share of the Nile waters by Ethiopia, the realization of which depends on, inter alia, an appropriate economic return, benefit sharing and prevention of significant impacts. Yihdego articulates the lessons that can be applied to public international law and suggests a process to address the issue of unfair agreements, arguing that, although the principle of fairness’s application can be complex, the notions of procedural fairness and distributive justice can define and delineate the principle with reference to a specific treaty regime.

The rich field of inter-state water law in the United States illustrates both successes and failures in transboundary water management and allocation. In Inter-state Water Law in the United States of America: What Lessons for International Water Law?, this domestic field of transboundary water law is compared and contrasted with international transboundary water law. This analysis is accompanied by a discussion and evaluation of the different cases of shared watercourses that applied these approaches, and a comparison of each of them to similar approaches in international water law. The analysis draws lessons for international water law from inter-states water law - highlighting the successful inter-states approaches that can be adopted by international water law, as well as the approaches that failed, and which should be avoided.

Public-Private Partnerships (PPPs) have increasingly emerged as a valuable mechanism for drawing in investment and expertise from the private sector to meet public infrastructure needs. PPPs involving transboundary international waters require particular attention given their huge potential for social and environmental impact. Transboundary Waters, Infrastructure Development and Public Private Partnership examines what PPPs are and how they function in the context of transboundary waters. It explains how environmental and social "safeguards” operate in relation to PPPs and transboundary waters in light of the Nam Theun 2 and the Xayaburi Hydroelectric Power projects in Laos PDR. Finally, it draws important lessons from their contractual arrangements, costs, financing and risk mitigation that are relevant to PPPs in other transboundary waters matters.

This work, Shared Water Resources in West Africa: Relevance and Application of the UN Watercourses and UNECE Water Conventions, addresses the question of whether riparian states in West Africa need to be parties to both the UN Watercourses Convention and the UNECE Water Convention, both of which have influenced current water regimes in the region. The initial transboundary water instruments in the region dealt primarily with navigation, later agreements addressed the need for cooperation, while recent regimes incorporate other principles of international water law articulated in the UN water treaties. Although only six out of its numerous shared watercourses are currently regulated by legal instruments, West Africa contributed through these agreements to the development of international water prior to the adoption of the UN Watercourses and the UNECE Water Conventions in the 1990s.

In The Human Right to Water in Latin America, Anna Berti Suman investigates the development of the right to water and of water law in the Latin American context. By examining the significance of Latin American constitutional evolution, doctrine, and jurisprudence, the author illustrates the Latin American contribution in stimulating the social, political, and economic debate on the right to water, regionally and worldwide. Through an overview on the right to water in Latin American constitutions and of the main Latin American water management systems, Berti Suman argues that an analysis of the right to water has to take account of its application in specific contexts. The intrinsic connection between the right to water and the role of the private sector is examined through topical insights into the highly privatized Chilean water services. In the conclusion, the relevance of the lessons learnt from the Latin American experience for the global debate on the right to water is convincingly proved.

Shared water resources in South Asia face various challenges including scarcity, population growth, and climate change impacts on all the riparians. Consequently, national calls for water security have become louder. As a result, collaboration among the nations of South Asia for ensuring equitable sharing of such water resources has not been optimal. While most countries do not have reliable systems for data generation, those possessing some hydrological data consider them state secrets, restricting their exchange. Even when treaty obligations exist, data-sharing practices are ad hoc, and the range of information shared is limited. Thus, negotiating new transboundary water treaties amongst South Asia’s riparian countries has become a daunting task, and enforcing existing ones remains a real challenge.

Although the International Law Association (ILA) was established in 1873, it only turned its attention to the internationally shared water resources in 1954, when its half-century study of the applicable principles and rules of international law thereon began. The first ILA committee assigned to this task was the Rivers Committee, which, after a decade of intensive study and through several resolutions and statements, arrived unanimously at a set of articles reflecting customary international law, known as the Helsinki Rules on the Uses of the Waters of International Rivers.The Helsinki Rules, approved at the ILA 1966 Helsinki Conference, were soon widely accepted across the Globe as a non-binding authoritative source of international water law. This monograph traces the work of the ILA leading to the Helsinki Rules, analyses the Rules, and identifies their influence on and contribution to the evolution of international water law.

In Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty Maria A. Gwynn offers an account of the need to align watercourses agreements to the current standards and principles of international law, thereby increasing prospects for achieving sustainable development. As a case study, the author focuses on the most important hydroelectrical energy treaty in the South American region and astutely explores its implementation together with states’ practices regarding the non-navigational uses of watercourses and their commitments to environmental protection. The analysis offers a unique opportunity to assess the value of the UN Watercourses Convention in recommending states adapt their agreements to the provisions of the convention promoting equitable and reasonable uses of watercourses; an interest not only for the treaty partners but also for river basin states and the international community as a whole.

Notification of co-riparian states of planned measures on shared watercourses has been widely accepted as an established principle of international water law, and is codified and elaborated in the United Nations Watercourses Convention. However, despite this wide acceptance, differences have arisen on operationalizing notification, including on which riparians are required to undertake notification, and which riparians are entitled to it. Issues have also arisen on how to deal with the different types of responses that may ensue following notification. The World Bank has been financing projects on international watercourses since its inception in 1946, and has built an extensive wealth of policies and experience in this field. This monograph discusses the historical and legal foundations of notification under international law, analyzes the policies and implementation experience of the World Bank thereon, and identifies comparators and synergies between the provisions of the Watercourses Convention and the Bank policies and practice.

In Use of Experts in International Freshwater Disputes, Mbengue and Das offer a critical assessment of the involvement of experts in resolving international water disputes. International disputes related to freshwater are increasing in number and complexity. The rising complexity is necessarily accompanied and compounded by the involvement of experts in dispute resolution. This monograph examines, through a number of case studies, decided by international tribunals, the role and use (or absence) of experts in international freshwater disputes. Through this examination, the authors identify the lacunae as well as good practices in expert use in disputes of this nature. The monograph goes on to suggest the best practices with respect to expert involvement and use for a more efficient and fair resolution of international water disputes.

In Data Innovations for Transboundary Freshwater Resources Management: Are Obligations Related to Information Exchange Still Needed?, Christina Leb discusses how technology innovations disrupt the conventional methods of data and information exchange and the potential impact this may have on international water law.Cross-border data and information exchange is one of the most challenging issues for transboundary water management. Only a small number of treaties include direct obligations related to mutual data and information exchange. Technological innovations related to real-time data availability, space technology and earth observation have led to an increase in quality and availability of hydrological, meteorological and geo-spatial data. These innovations open new avenues for access to water related data and transform data and information exchange globally. This monograph is an exploratory assessment of the potential impacts of these disruptive technologies on data and information exchange obligations in international water law.

In African Basin Management Organizations - Contribution to Pollution Prevention of Transboundary Water Resources, Komlan Sangbana highlights how the protection of water resources and their ecosystems has become a key focus of basin organizations in Africa. The development, adoption and implementation of pollution control standards by basin organizations have widened the remit and greatly strengthened the role of these institutions. As such, basin organizations have become central actors in the domain of African regional law for the protection of freshwater resources. This monograph analyses the variety of functions and tasks that have been entrusted to African basin organizations to prevent pollution damage and provides some avenues for strengthening the work they perform to protect river systems.

Protection of water infrastructure is fundamental to the protection of civilians during armed conflicts; they provide water for drinking, sanitation, agriculture and energy. Unfortunately, they suffer not only from incidental damages inherent in conflicts, but also from deliberate targeting and weaponization by the belligerent parties.In The Geneva List of Principles on the Protection of Water Infrastructure, Tignino and Irmakkesen provide a detailed overview of the rules and practice on the protection of water infrastructure during and after armed conflicts. This overview is presented in a set of principles derived from different branches of international law and enriched with international practice, making the monograph a first in taking a holistic approach in the study of the subject.

Implementing International Watercourses Law through the WEF Nexus and SDGs: An Integrated Approach Illustrated in the Zambezi River Basin offers an innovative approach to the governance of shared watercourses and the implementation of international water law through the Law, Nexus and Goals (LNG) approach. By looking at policy frameworks such as the WEF nexus and global development agendas such as the SDGs, the monograph provides a method of integration for holistic water governance. In order to demonstrate this approach, a case study of the Zambezi River Basin is used, through which the monograph not only exemplifies the approach taken, but also provides a detailed account of the legal and policy frameworks within the basin.

The Ilisu Dam and its Impact on the Mesopotamian Marshes of Iraq: Implications for the Future Directions of International Water Law provides an overview of the existing legal regime of the Tigris Euphrates River Basin in the context of the ecological and socio-political effects of global climate change. Four other river basin systems; the Senegal, Rio Grande, Mekong, and Nile, are discussed for the purpose of illuminating overarching problems and possible solutions. In conclusion, future directions in the law of transboundary basins should be based on the collaboration of all affected states. The global community, as the largest stakeholder in regional stability and ecological viability, should also contribute affirmatively to support sustainable systems.