International water resources law and the International Law Commission draft articles on transboundary aquifers: a missed opportunity for cross-fertilisation?

While the Draft Articles on the Law of Transboundary Aquifers adopted in 2008 by the International Law Commission (ILC)1 follow the same format as the 1997 UN Watercourses Convention2 and might reasonably have been expected to adopt a similar normative approach wherever possible, the Preamble to the Draft Articles fails to make any reference to this or to other seminal instruments or codifications in the area of international water resources law and the document takes, in some respects, a radically different and less progressive stance. The principal difference in the Draft Articles, and one which can be linked to most of the other deviations, is the inclusion of an express reference to the sovereignty of aquifer States in a manner implying that this is the key guiding principle of the instrument. This emphasis on State sovereignty over shared, and often migratory, water resources appears to represent something of a retreat from the distributive equity inherent in the firmly established principle of equitable and reasonable utilization and from the intense procedural and institutional cooperation required to achieve the community of interests approach necessary to give meaning to this principle. Reliance on sovereignty implies instead a drift towards a position based more on the narrow and immediate self-interest of States. In order to avoid such an interpretation, it would have been better if the Draft Articles had sought to establish two separate but parallel regimes, one based on sovereignty and covering the static geological formation of the aquifer, and one covering the shared water resources contained in, and transiting through, the formation and based on equitable and reasonable utilization

The World Court's emphasis on procedural rules in the recent Pulp Mills case: contributing to the progressive and coherent development of international water law

The judgment of the International Court of Justice in the Pulp Mills (Argentina v. Uruguay) case makes a very important contribution to international law relating to shared international water resources and to international environmental law more generally. It does much to clarify the relationship between procedural and substantive rules of international environmental law. The Court linked interstate notification of new projects to the satisfaction of the customary due diligence obligation to prevent significant transboundary harm. It found that environmental impact assessment (EIA) is an essential requirement of customary international law in respect of activities having potential transboundary effects. The real significance of the judgment is that it held that the duty to notify, and the related duty to conduct an EIA taking account of transboundary impacts, exist in customary international law and thus apply to all states, not just those that have concluded international agreements containing such obligations. The Court confirmed that for shared international water resources, the principle of equitable and reasonable utilisation, universally accepted as the cardinal rule of international water law, is virtually synonymous with the concept of sustainable development, and suggests that considerations of environmental protection are absolutely integral to the equitable balancing of interests involved. The judgment makes it clear that the principle of equitable utilisation ought to be understood as a process, rather than a normatively determinative rule. This ought to help to address widespread confusion about the nature of the key rules and principles of international water resources law and its role in the resolution of water resources disputes and in environmental diplomacy more generally

New approaches for international water resources

As a body of rules and a basis for inter-State cooperative practice, international water law suffers from certain important shortcomings. Most significantly, it is characterised by substantive normative indeterminacy, and from related deficiencies in its associated procedural and institutional frameworks, which retard its progressive development and limit its capacity to respond to the looming challenges of the impending global water crisis. Though it has evolved progressively in recent years to incorporate a far-reaching obligation upon watercourse States to adopt an ecosystem approach to the management of shared watercourses, this very development highlights international water lawâ s systemic difficulty in accommodating water management techniques which are critically important to effective implementation of such an approach and, ultimately, to addressing the water crisis. Such techniques, with which international water law struggles, include multifaceted benefit-sharing, adaptive management, and public and stakeholder participation. The latter two are considered essential for implementation of an ecosystem approach, while the former comprises a cooperative technique facilitated by an ecosystem approach, by means of which watercourse States might eliminate inefficiencies and ensure optimal utilisation of shared water resources. These problems illustrate the urgent imperative of continuing to develop and refine, if not completely reimagine, the rules of international water law

The emergence of standards regarding the right of access to water and sanitation

Despite continuing uncertainty over the precise legal status of the putative human right(s) of access to water and sanitation in international law, and also within the domestic legal frameworks of many national jurisdictions, the elaboration continues apace of a rich montage of water services standards by a diverse cast of formal and informal global, regional, State and transnational actors. In addition to emerging standards regarding the physical safety and adequacy of water supplied for domestic purposes, notably including the WHO Guidelines for Drinking-Water Quality, standards are also being adopted by bodies such as the International Organisation for Standardisation (ISO), which set down more general service quality guidelines for utilities providing domestic water and sanitation services. Also, certain institutions providing finance for major water services projects, such as multilateral development banks (MDBs), are developing sophisticated standards for cost recovery which seek to adopt elements of a human rights-based approach by taking account of the affordability of water and sanitation services and providing safeguards for poor and vulnerable people, including restrictions on service disconnection for non-payment of charges. At every level of decision-making regarding water and sanitation services, standards of governance informed by the practice of human rights, including standards concerned with transparency, participation, reviewability and accountability, have become pervasive

Procedural rules of international water law and the imminent challenges of the ecosystem approach

As the normative implications of emerging obligations to protect and preserve the ecosystems of transboundary watercourses become more clearly understood, the established procedural rules of international water law will be severely challenged. The current procedural rules and mechanisms, which have evolved to facilitate effective inter-State engagement regarding economic utilisation of shared waters, will struggle to accommodate key elements of the so-called “ecosystem approach”, including emerging obligations regarding environmental flows and the ecosystem services paradigm. In particular, the established rules will prove unequal to the procedural requirements of adaptive management techniques for maintaining ecological resilience, of broad and meaningful stakeholder and public participation in decision-making, and of complex benefit-sharing arrangements to ensure optimal and sustainable utilisation of shared water resources. While the ecosystem approach holds great promise for the resolution of inter-State water disputes, it is increasingly apparent that the procedural rules and mechanisms of international water law will need to shift away from one-time inter-State communication processes conducted in anticipation of planned water-related developments, and towards more sophisticated continuing procedural engagement focused on ensuring the optimal and sustainable functioning of valuable watercourse ecosystems

The current state of development of the no significant harm principle: How far have we come?

The duty to prevent significant transboundary harm remains a cornerstone principle of international law, and especially of international environmental and water resources law. However, this rule focuses on the conduct of a State where harm originates, rather than on the fact that harm has resulted from such conduct, and thus requires that States exercise due diligence in anticipating and in preventing or mitigating such harm. At a practical level, the due diligence standard of conduct expected of States can be uncertain and difficult to determine, as it must be deduced from the applicable primary rules of international environmental or water resources law, which have traditionally been elaborated in rather vague terms. In addition, the standard of due diligence required under the no-harm rule may be influenced by a range of variable and context-specific factors which might prove relevant in the particular circumstances of any dispute. Such uncertainty is further compounded in the field of international water law by the complex interrelationship between the no-harm rule and the other key norms of international water law, particularly the cardinal principle of equitable and reasonable utilization, which embodies a high degree of flexibility and adaptability and suffers from a corresponding degree of normative indeterminacy. Thankfully, recent developments in international water law and related practice regarding the requirement to protect riverine ecosystems and maintain related ecosystem services lend a welcome measure of clarity as regards the preventive measures expected of watercourse States under international law. Judicial recognition of obligations to maintain minimum environmental flows and to preserve or restore riverine ecosystem services, based on the proliferation of such values in treaty and declarative practice, along with the continuing development of sophisticated technical methodologies for ecosystems assessment and evaluation, do much to inform the due diligence conduct required of States. Such advances can only enhance the practical utility of the no-harm rule, and thus of the entire corpus of international water law, in addressing the challenges emerging globally for water resources management in the twenty-first century