River Basin Organizations in Water Diplomacy

Anoulak Kittikhoun, Susanne Schmeier, Anoulak Kittikhoun, Susanne Schmeier

• Publisher: Taylor & Francis
• Year: 2020
• eBook ISBN: 9780429561245
• Edition: 1
• Topic: Biowissenschaften
• Subtopic: Politik

Will tensions and disputes among states sharing international water courses and lakes turn into active conflicts? Addressing this question, the book shows that these concerns are more prominent due to the locations and underlying political dynamics of some of these large rivers and the strategic interests of major powers.

Written by a combination of leading practitioners and academics, this book shows that states are more prone to cooperate and manage their transboundary issues over the use of their common water resources through peaceful means, and the key institutions they employ are international river basin organizations (RBOs). Far from being mere technical institutions, RBOs are key mechanisms of water diplomacy with capacity and effectiveness varying on four key interrelated factors: their legal and institutional development, and the influence of their technical and strategic resources. The basins analyzed span all continents, from both developed and developing basins, including the Columbia, Great Lakes, Colorado, Senegal, Niger, Nile, Congo, Jordan, Helmand, Aral Sea, Mekong, Danube and Rhine.

Contributing to the academic discourse on transboundary water management and water conflict and cooperation, the book provides insights to policy-makers on which water diplomacy engagements can be successful, the strengths to build on and the pitfalls to avoid so that shared water resources are managed in a cooperative, sustainable and stable way.

1 The legal role and context of river basin organizations

Owen McIntyre

While international law relating to the management of international watercourses, and to the environmental protection of shared freshwater resources in particular, has undergone significant development and clarification in recent years, the institutional machinery that basin states need to achieve the requisite level of cooperation has been developing apace. It is now beyond debate that environmental considerations are of steadily growing significance in the application of international water law. It may be argued that the growing normative sophistication and ever more comprehensive scope of applicable environmental rules give added voice to environmental concerns when determining a reasonable and equitable regime for the utilization of an international watercourse.¹

One development concerns the widespread adoption of a “common management” approach, whereby the drainage basin is regarded as an integrated whole and is managed, to a greater or lesser extent, as an ecological and economic unit, with legitimate interests in the shared waters vested in the community of co-basin states. Such an approach is inevitably accompanied by the establishment of institutional machinery—for example, a river basin organization—to formulate and implement common policies for the management and development of the shared basin.² Long advocated by learned associations and diplomatic conferences, this has become necessary due to the complexity of modern water resources utilization and environmental protection obligations.

This chapter traces the history of state practice in establishing common management institutions, examines the legal character of any requirement to do so, and outlines the normative implications of this trend towards “denationalization” of international watercourses, particularly as regards environmental governance. Such common management institutions tend to be charged with a wide variety of functions,³ but as environmental responsibilities are often expressly included in their founding instruments, they usually enjoy a clear mandate to act in the interests of environmental protection, as well as possessing the technical, legal, political, and administrative expertise to do so effectively.

Community of interest approach to international watercourses and common management institutions

The institutional structure and purposes of common management regimes vary significantly from basin to basin, with different economic problem structures likely to have implications for institutional design,⁴ and not all having as yet an express mandate regarding environmental protection. Common management is an approach to managing water problems rather than a normative principle of international law and has been widely endorsed by the international community.⁵ Recommendation 51 of the “Action Plan for the Human Environment” adopted at the 1972 Stockholm Conference called for the “creation of river basin commissions or other appropriate machinery for co-operation between interested States for water resources common to more than one jurisdiction” and sets down a number of basic principles by which such commissions should be guided.⁶ Chapter 18 of Agenda 21, adopted in Rio at the 1992 UN Conference on Environment and Development (UNCED), calls for “integrated water resources planning and development” and goes on to suggest the role of any institutional machinery established for such purpose.⁷ As early as 1979, a UN survey identified 90 common management institutions concerned with non-navigational uses of shared freshwater resources, distributed throughout every region of the world.⁸ More recent estimates suggest that “well over one hundred international river commissions have been established by states.”⁹

Community of interest

The idea that a community of interest exists in international watercourses, and the related idea that the interests of riparian states can be identified and safeguarded on the basis of equity, is supported in international judicial deliberation. In the River Oder case, though concerned with rights of navigation, the Permanent Court of International Justice (PCIJ) referred to “principles governing international fluvial law in general” to conclude that

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.¹⁰

In the same passage, the PCIJ refers to “the possibility of fulfilling the requirements of justice and the considerations of utility,” anticipating a role for considerations of equity in giving effective protection to the rights of states.¹¹ In the Gabčíkovo-Nagymaros case, the International Court of Justice (ICJ) reproduced this passage from the River Oder judgment and stated that “modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well.”¹² On this basis, Stephen McCaffrey suggests that “the concept of community of interest 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, such as that of equitable utilization.”¹³ Where a community of interest approach is adopted and implemented by means of common management institutions, “a state’s ‘interests’ 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.”¹⁴

The concept of community of interest can be traced back to a 1792 French decree on the opening of the Scheldt River to navigation.¹⁵ This position was quickly adopted in a number of instruments concerned primarily with rights of navigation in international rivers.¹⁶ The Vienna Congress of 1815 led to the establishment of the Central Commission for Navigation on the Rhine—not only the first international river basin organization but also the first international organization in general.¹⁷ Ines Dombrowsky notes that “it was the interdependence created by the use of water that gave rise to the foundation of the first modern international organization.”¹⁸ Some early agreements giving expression to the concept of community of interest were not restricted to navigational uses of water. Article 4 of the 1905 Treaty of Karlstad between Sweden and Norway provides that international lakes and watercourses “shall be considered as common.”¹⁹ In modern treaty practice, the original 1995 Southern African Development Community (SADC) Protocol on Shared Watercourse Systems called for member states to “respect and abide by the principles of community of interests in the equitable utilization of those systems and related resources,”²⁰ although the superseding 2000 Revised Protocol on Shared Watercourses²¹ contains no corresponding provision, but only the approach taken under the UN Watercourses Convention.²² Nevertheless, Southern Africa has witnessed renewed efforts to establish basin-wide cooperative institutions in accordance with the Revised SADC Protocol.²³ The 1992 agreement between Namibia and South Africa “on the Establishment of a Permanent Water Commission” provides that the commission’s objective is, inter alia, “to act as technical adviser to the Parties on matters relating to the development and utilization of water resources of common interest to the Parties.”²⁴ It is more usual, however, for modern treaties “to treat international watercourses as being of common interest than to refer to them expressly as common rivers or property.”²⁵

While the community of interest and associated common management approach are advocated, few would contend that they have evolved, or are likely soon to evolve, into a requirement of customary international law. While the notion of a community of interest in international watercourses “is the legal principle most appropriate for a fully developed legal community,” Bonaya Godana concedes that “the international community is far from being fully developed” and that “the idea has yet to develop into a principle of international law governing international water relations in the absence of treaties.”²⁶ Ibrahim Kaya concludes that, “[d]espite the dramatic increase in the scale of international cooperation regarding international watercourses…[t]here is not enough support for the theory of common management from customary international law.”²⁷ Lucius Caflisch considers the merits of “denationalizing” management of international watercourses but concludes that, “while it is clear that a condominium could be established by treaty, one cannot maintain that, by virtue of the rules of customary law, the whole of an international watercourse, including its resources, forms a condominium.”²⁸ Looking at international agreements creating water management institutions, Dombrowsky notes that, “[f]rom a legal perspective, affected parties should be able to participate as appropriate, but a basin-approach is no strict requirement.”²⁹

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Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• List of tables
• List of contributors
• List of abbreviations
• Acknowledgements
• Introduction: do river basin organizations make a difference in water diplomacy and conflict management?
• 1 The legal role and context of river basin organizations
• 2 Water diplomacy and collaborative governance in the Great Lakes Basin
• 3 Water diplomacy and shared resources along the United States-Mexico border
• 4 Process aspects of the development of shared waters agreements: the Columbia River Treaty
• 5 International river basin organizations and benefit-sharing arrangements in the Columbia and Senegal international river basins: past, present, and future
• 6 The Niger Basin: is development raising the stakes of cooperation?
• 7 Water diplomacy and conflict transformation in the Nile River Basin: the key role of the Nile Basin initiative over the past 20 years
• 8 Managing abundance: CICOS and the Congo
• 9 Water diplomacy in the absence of a river basin organization: a case study in Jordan, Israel, and Palestine
• 10 Water diplomacy in the Helmand River Basin: exploring the obstacles to cooperation within the shadow of anarchy
• 11 Prolonging or resolving water conflicts in Central Asia? The International Fund for Saving the Aral Sea
• 12 The Mekong River Commission as a water diplomat
• 13 China in international institutions for water governance
• 14 Managing disagreements in European basins: what role for river basin organizations in water diplomacy?
• 15 Conclusion: managing tensions and sharing benefits—international rivers in conflict and cooperation
• Index