Cooperation in the Law of Transboundary Water Resources

Description

Climate change, population growth and the increasing demand for water are all capable of leading to disputes over transboundary water systems. Dealing with these challenges will require the enhancing of adaptive capacity, the improving of the quality of water-resources management and a reduction in the risk of conflict between riparian states. Such changes can only be brought about through significant international cooperation. Christina Leb's analysis of the duty to cooperate and the related rights and obligations highlights the interlinkages between this duty and the principles of equitable and reasonable utilisation and the prevention of transboundary harm. In doing so, she considers the law applicable to both international watercourses and transboundary aquifers, and explores the complementarities and interaction between the rules of international water law and the related obligations of climate change and human rights law. Cover Title page Copyright page Contents Acknowledgements Table of treaties Table of cases Central American Court of Justice European Court of Human Rights Human Rights Committee Inter-American Court of Human Rights International Arbitration Tribunals International Court of Justice Neutral Expert (Indus Waters Treaty 1960) Permanent Court of International Justice List of abbreviations Introduction Part I Acknowledging interdependence 1 Cooperation between sovereign States 1.1 The nature of water 1.1.1 The water cycle 1.1.2 Human intervention and interdependence 1.1.3 Addressing hydrologic interdependence through cooperation 1.2 State motivation for cooperation 1.2.1 Elements intervening in the choice to cooperate State concern for security and power Historical theories and political interest Benefit optimisation Hydrologic conditions as a source of aligning and competing interests 1.2.2 Factors contributing to the use of law in State cooperation Larger gains through transparency Reciprocity 1.3 The nature of cooperation in international law 1.3.1 Good faith as an essential assumption 1.3.2 Evolution of cooperative coexistence of States 1.3.3 Changing paradigms Concepts of sovereignty The evolving character of sovereignty 1.4 Conclusion 2 Development of international water law 2.1 Sovereignty over shared water resources 2.1.1 Absolute territorial theories The theory of absolute territorial sovereignty The theory of absolute territorial integrity Mutual exclusiveness of absolute theories 2.1.2 Limited territorial sovereignty over shared resources 2.1.3 A community of interest? 2.2 Expansion of normative reach 2.2.1 Expansion via navigation 2.2.2 Continued efforts in multilateral codification Beginning of ‘universalisation’ by the League of Nations The work of the International Law Commission Interaction between universal instruments and treaties at the regional and basin levels 2.2.3 Widening thematic scope 2.3 Conclusion Part II A general duty to cooperate: What does it mean? 3 The duty to cooperate and concurrence of principles 3.1 The general duty to cooperate 3.1.1 Crystallisation of an autonomous duty Codification by scientific commissions Codification by the International Law Commission The legal nature of the general duty to cooperate 3.1.2 Terms and objectives of the general duty to cooperate Basic principles and elements of cooperation Objective of the general duty according to codifications of universal rules 3.2 Considering legitimate interests of others 3.2.1 The principle of equitable and reasonable utilisation Multiple factors and subjective objectives 3.2.2 Implementation of the principle Equitable participation 3.2.3 Inter-generational equity 3.3 Minimising negative impact on others 3.3.1 Good neighbourliness Protection of the environment 3.3.2 Implementation of the principle: Obligation not to cause significant harm Relationship with the principle of equitable and reasonable utilisation 3.4 Conclusion: A triangle of principles? 4 Informing cooperation 4.1 Procedure void of substance? 4.1.1 Procedural and substantive law 4.1.2 The procedural and substantive content of specific cooperation obligations 4.1.3 Importance of comprehensive reading 4.2 Informing the process 4.2.1 Regular data and information exchange Evolution of the duty Quality and content of data provided Availability of data and the duty to collect Timing and frequency of data exchange Information exchange upon request 4.2.2 Notification of emergencies When and whom to notify Duty to minimise damage The case of pollution 4.2.3 Notification of planned measures Timing of notification Whom to notify? Content of notification Related obligation to suspend implementation 4.3 Identifying mutual benefits and competing interests and rights 4.3.1 Consultation Related duty: Taking interests of others into account 4.3.2 Negotiation Negotiation as a customary obligation The right to participate in negotiations Obligation to reach agreement 4.3.3 Conclusion of treaties 4.4 Conclusion 5 Adoption of joint measures 5.1 Protection and development of shared waters 5.1.1 Coordination for water quality control Quality and emission standards The coordination process Monitoring and warning systems Navigation and pollution Groundwater 5.1.2 Ecosystem management and protection Management of fish resources Protection of ecosystems from invasive species Water supply and flow control benefit from healthy ecosystems 5.1.3 Flow regulation and joint infrastructure Intervention in natural flows Treaty practice with respect to minimum flow Flow regulation through joint infrastructure projects 5.2 Institutional frameworks for cooperation Structure, design and functional role with respect to cooperation 5.2.1 Platforms for dialogue, planning and operation 5.2.2 Enhancing and widening cooperation 5.2.3 Ensuring compliance Enhancing compliance through data exchange Facilitating compliance through technical assistance 5.2.4 Preventing and settling disputes 5.3 Conclusion: Managing complexity through joint action Part III Dealing with evolving challenges 6 International protection of vital human water needs 6.1Vital human water needs - an issue worthy of legal protection 6.2 Emerging protection under international water law 6.2.1 Protection through the obligation not to cause significant harm and the principle of equitable utilisation 6.2.2 Increasing attention in legal instruments At the universal level At the regional and basin level Recognition in jurisdiction 6.3 Enforcing satisfaction of vital human needs 6.3.1 Enforcement of the human right to water Increased protection through recognition as a self-standing right? Limited geographic reach of human rights enforcement mechanisms 6.3.2 Alternative enforcement avenues 6.3.3 International obligations under human rights law Extraterritorial and international human rights obligations International cooperation obligations Content of international obligations 6.4 Conclusion 7 Emerging international cooperation on global water challenges 7.1 Hydrologic effects of climate change 7.2 Appreciation of hydrologic variability in international water law 7.2.1 Flexibility in principle(s) 7.2.2 The role of treaties in facilitating flexibility to adjust for hydrologic variability 7.2.3 Norms and mechanisms facilitating adaptation Required conduct based on pre-identified changes Obligations of conduct that set in motion previously undetermined adaptive behaviour Coordination within the framework of joint mechanisms 7.3 Appreciation of water (law) in climate change law 7.3.1 Lack of recognition? 7.3.2 The UNFCCC framework The concept of common but differentiated responsibilities Differentiated responsibilities for mitigation and adaptation Institutionalisation of global assistance with benefits at the basin level 7.3.3 Differentiation as a challenge to cooperation The need for revised differentiation Lessons from international water law 7.4 Conclusion: Complementarity of systems and consideration of the hydrologic cycle as a whole Conclusion Annex: Consideration of cooperation in international water treaties Methodology Definition of categories Outcome of analysis Bibliography Index