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

Table of contents :
Author Bio
Part I: State Sovereignty, Water Systems and the Development of International Water Law
1 Sovereignty, the Web of Water and the Myth of Westphalia
2 The Evolution of W ater Law
3 The Siren Song of Sovereignty in International Water Relations
4 The History of Water Law in the Common Law Tradition
5 History of Water Law in Scandinavia
6 State Sovereignty in the Case Law of the International Court of Justice
Part II: Contemporary Challengesto State Sovereignty
7 Determining Sovereign Rights and Duties over International Watercourses: The Contribution of the International Law Commission and the UN General Assembly
8 Sovereignty and Equitable Utilization of International Waters. Some Examples in Central Asia, Africa and the Middle East
9 Territory, Resource Rights and Rivers: A Philosophical Case for Overlapping Jurisdiction
10 History and Status of the Community-of-Interests Doctrine
11 Reconciling Sovereignty with Supranationality: Lessons from the Nordic C ountries
12 Integration of the Right to Water in International Law: Circumventing and Bypassing StateSovereignty
13 State Sovereignty and Transboundary Aquifers
14 Sovereignty and the Procedural Rules of International Water Law
15 Addressing Water Security Challenges: The International Law ‘Duty to Cooperate’ as a Limit on A bsolute State Sovereignty
Part III: Regional Case Studies
16 Sovereignty and Equitable Utilization: a Regional Implementation Summary
17 State Sovereignty and Shared Water Resources under the Islamic Legal Tradition
18 Colorado and the Western United States
19 Sovereignty and the Joint Management of Shared Transboundary Water Resources in the West Africa Sub-region
20 Principles of Transboundary Water Resources Management and the Frontier Watercourses Agreement between Finland and Russia
21 Reflections and Trends on Sovereignty over Natural Resources: The Association of Southeast Asian Nations
22 Australian Water Law History: The Move from Introspective State Sovereignty to a National Interest Approach and the Influence of International Law
23 Transboundary Water Law: The Practice of the People’s Republic of China
24 The Concept of State Sovereignty and River/Lake Basin Law in South Eastern Europe
25 Development of European Water Law and State Sovereignty
26 Nationalism, State Sovereignty and International Water Management in the Zambezi River Basin
27 Water systems, Water Agreements and State Sovereignty: The Case of the Nile Waters Agreement of 1929
28 Constructing Dams: Between Sovereignty of States and Rules of International Water Law
29 Remodelling Sovereignty: Overtures of a New Water Security Paradigm in the Nile Basin Legal Discourse
30 The Doctrines of Sovereignty and Equitable Utilization of International Waters Under the Agreement on the Nile River Basin Cooperative Framework
31 Uganda: Sovereignty and International Water Agreements

Citation preview

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


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


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


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



A History of Water

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


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


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


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




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


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


18. Colorado and the Western United States Tom Cech


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




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



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


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


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


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


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


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


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


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


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






Part I

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


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.


A History of Water

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


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


A History of Water

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


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


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,

Sovereignty, the Web of Water and the Myth of Westphalia


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


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

Sovereignty, the Web of Water and the Myth of Westphalia


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


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

Sovereignty, the Web of Water and the Myth of Westphalia


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


A History of Water

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

Sovereignty, the Web of Water and the Myth of Westphalia


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


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

Sovereignty, the Web of Water and the Myth of Westphalia


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


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).

Sovereignty, the Web of Water and the Myth of Westphalia


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


A History of Water

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

Sovereignty, the Web of Water and the Myth of Westphalia


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.


A History of Water

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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11 12



15 16 17 18

19 20 21 22 23 24


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.


A History of Water

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).

Sovereignty, the Web of Water and the Myth of Westphalia


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).


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.


A History of Water

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).

The Evolution of Water Law


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


A History of Water

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

The Evolution of Water Law


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


A History of Water

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

The Evolution of Water Law


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


A History of Water

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

The Evolution of Water Law


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


A History of Water

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

The Evolution of Water Law


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


A History of Water

(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).

The Evolution of Water Law


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.


A History of Water

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.


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.


A History of Water

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


A History of Water

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


A History of Water

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


A History of Water

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

The Siren Song of Sovereignty in International Water Relations


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


A History of Water

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

The Siren Song of Sovereignty in International Water Relations


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


A History of Water

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

The Siren Song of Sovereignty in International Water Relations


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).


A History of Water

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

The Siren Song of Sovereignty in International Water Relations


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).


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

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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.


A History of Water

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

The History of Water Law in the Common Law Tradition


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:


A History of Water

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:

The History of Water Law in the Common Law Tradition


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.


A History of Water

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

The History of Water Law in the Common Law Tradition


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


A History of Water

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,

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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’


A History of Water

(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)

The History of Water Law in the Common Law Tradition


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


A History of Water

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).

The History of Water Law in the Common Law Tradition


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.


A History of Water

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:

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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,


A History of Water

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

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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


A History of Water

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

The History of Water Law in the Common Law Tradition


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.


A History of Water

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.

The History of Water Law in the Common Law Tradition


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).


A History of Water

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

The History of Water Law in the Common Law Tradition


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)


A History of Water

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).


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


A History of Water

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

History of Water Law in Scandinavia


(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.


A History of Water

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

History of Water Law in Scandinavia


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


A History of Water

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,

History of Water Law in Scandinavia


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.


A History of Water

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

History of Water Law in Scandinavia


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,


A History of Water

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

History of Water Law in Scandinavia


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.


A History of Water

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

History of Water Law in Scandinavia


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.


A History of Water

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).

History of Water Law in Scandinavia


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


A History of Water

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

History of Water Law in Scandinavia


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


A History of Water

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

History of Water Law in Scandinavia


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


A History of Water

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.

History of Water Law in Scandinavia


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


A History of Water

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).


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

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


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


A History of Water

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.

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


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

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


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


A History of Water

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


A History of Water

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


A History of Water

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

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


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


A History of Water

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

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


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.


A History of Water

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


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.

Determining Sovereign Rights and Duties over International Watercourses


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,

Determining Sovereign Rights and Duties over International Watercourses


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


A History of Water

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).

Determining Sovereign Rights and Duties over International Watercourses


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).


A History of Water

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).

Determining Sovereign Rights and Duties over International Watercourses


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)


A History of Water

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).

Determining Sovereign Rights and Duties over International Watercourses


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


A History of Water

‘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

Determining Sovereign Rights and Duties over International Watercourses


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


A History of Water

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).

Determining Sovereign Rights and Duties over International Watercourses


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


A History of Water

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

Determining Sovereign Rights and Duties over International Watercourses


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.


A History of Water

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.

Determining Sovereign Rights and Duties over International Watercourses


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.


A History of Water

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.

Determining Sovereign Rights and Duties over International Watercourses


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).


A History of Water

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.

Determining Sovereign Rights and Duties over International Watercourses


———, ‘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.


A History of Water

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.

Determining Sovereign Rights and Duties over International Watercourses


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.


A History of Water

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.


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.


A History of Water

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

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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.

Sovereignty and Equitable Utilization of International Waters


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.


A History of Water

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

Sovereignty and Equitable Utilization of International Waters


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.


A History of Water

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.

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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.

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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.

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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

Sovereignty and Equitable Utilization of International Waters


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


A History of Water

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.


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


A History of Water

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

Territory, Resource Rights and Rivers


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


A History of Water

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


A History of Water

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

Territory, Resource Rights and Rivers


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


A History of Water

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

Territory, Resource Rights and Rivers


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


A History of Water

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

Territory, Resource Rights and Rivers


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.


A History of Water

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

Territory, Resource Rights and Rivers


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


A History of Water

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.

Territory, Resource Rights and Rivers


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


A History of Water

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).

Territory, Resource Rights and Rivers


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).


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).

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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

History and Status of the Community-of-Interests Doctrine


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.


A History of Water

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,

History and Status of the Community-of-Interests Doctrine


‘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


A History of Water

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,

History and Status of the Community-of-Interests Doctrine


‘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):


A History of Water

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

History and Status of the Community-of-Interests Doctrine


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,


A History of Water

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).

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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.

History and Status of the Community-of-Interests Doctrine


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,


A History of Water

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

History and Status of the Community-of-Interests Doctrine


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:


A History of Water

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

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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).

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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.

History and Status of the Community-of-Interests Doctrine


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

History and Status of the Community-of-Interests Doctrine


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):


A History of Water

[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

History and Status of the Community-of-Interests Doctrine


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’’.


A History of Water

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.’

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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

History and Status of the Community-of-Interests Doctrine


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


A History of Water

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):

History and Status of the Community-of-Interests Doctrine


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.


A History of Water

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).


A History of Water

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).

History and Status of the Community-of-Interests Doctrine


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.


A History of Water

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.


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

Reconciling Sovereignty with Supranationality


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

Reconciling Sovereignty with Supranationality


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


A History of Water

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

Reconciling Sovereignty with Supranationality


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).


A History of Water

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

Reconciling Sovereignty with Supranationality


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,


A History of Water

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.

Reconciling Sovereignty with Supranationality


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


A History of Water

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

Reconciling Sovereignty with Supranationality


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


A History of Water

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-

Reconciling Sovereignty with Supranationality


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


A History of Water

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

Reconciling Sovereignty with Supranationality


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


A History of Water

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

Reconciling Sovereignty with Supranationality


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


A History of Water

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.

Reconciling Sovereignty with Supranationality

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27


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


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


A History of Water

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

Integration of the Right to Water in International Law


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)


A History of Water

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

Integration of the Right to Water in International Law


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


A History of Water

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

Integration of the Right to Water in International Law


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)


A History of Water

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

Integration of the Right to Water in International Law


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


A History of Water

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

Integration of the Right to Water in International Law


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


A History of Water

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


A History of Water

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

Integration of the Right to Water in International Law


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


A History of Water

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.

Integration of the Right to Water in International Law


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.


A History of Water

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).

Integration of the Right to Water in International Law


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)


A History of Water

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.


A History of Water

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).

Integration of the Right to Water in International Law


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.


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


A History of Water

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

State Sovereignty and Transboundary Aquifers


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


A History of Water

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

State Sovereignty and Transboundary Aquifers


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


A History of Water

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.

State Sovereignty and Transboundary Aquifers


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,


A History of Water

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.)

State Sovereignty and Transboundary Aquifers


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


A History of Water

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.

State Sovereignty and Transboundary Aquifers


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).


A History of Water

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

State Sovereignty and Transboundary Aquifers


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


A History of Water

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

State Sovereignty and Transboundary Aquifers


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.


A History of Water

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).


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


A History of Water

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

Sovereignty and the Procedural Rules of International Water Law


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

Sovereignty and the Procedural Rules of International Water Law


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


A History of Water

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

Sovereignty and the Procedural Rules of International Water Law


‘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


A History of Water

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

Sovereignty and the Procedural Rules of International Water Law


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


A History of Water

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

Sovereignty and the Procedural Rules of International Water Law


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.


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.


A History of Water

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

Addressing Water Security Challenges


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


A History of Water

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

Addressing Water Security Challenges


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


A History of Water

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.

Addressing Water Security Challenges


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.


A History of Water

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

Addressing Water Security Challenges


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


A History of Water

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.

Addressing Water Security Challenges


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.


A History of Water

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,

Addressing Water Security Challenges








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).


A History of Water

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.

Addressing Water Security Challenges


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


38 39

40 41


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A History of Water

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,