Zhao: Coopérer en droit international des cours d'eau transfrontaliers : État du droit et étude du cas chinois

Yue Zhao (Université du Sichuan - Law) has published Coopérer en droit international des cours d'eau transfrontaliers : État du droit et étude du cas chinois (L'Harmattan 2020). Here's the abstract:

La plupart des cours d'eau transfrontaliers de la Chine prennent leur source en Chine. On prétend généralement que ce pays, profitant de sa position géohydrologique avantageuse, adopte une stratégie unilatérale dans ses projets hydrauliques. Cet ouvrage étudie de façon approfondie et systématique les pratiques de la Chine dans les coopérations hydriques bilatérales et multilatérales, en exposant sa vision du droit international, surtout en matière de cours d'eau transfrontaliers. À partir de l'exemple chinois, un nouvel éclairage est jeté sur un concept important, essentiel et complexe du droit international, à savoir l'obligation générale de coopérer.

Tignino & Irmakkesen: The Geneva List of Principles on the Protection of Water Infrastructure: an Assessment and the Way Forward

Mara Tignino (Univ. of Geneva - Geneva Water Hub) & Öykü Irmakkesen (Geneva Academy of International Humanitarian Law and Human Rights) have published The Geneva List of Principles on the Protection of Water Infrastructure: an Assessment and the Way Forward (Brill Research Perspectives in International Water Law, Vol. 5, no. 2, 2020). Here's the abstract:

Attacks against water infrastructure and their weaponization have hit the headlines several times in recent armed conflicts. As opposed to the protection of water per se as a natural resource and as a vital human need which is dealt with rather extensively in doctrine, the protection of water infrastructure requires greater scrutiny. This monograph includes the Geneva List of Principles on the Protection of Water Infrastructure, drafted in 2019 under the auspices of the Geneva Water Hub, bringing together rules regulating the protection of water infrastructure under international humanitarian law, international human rights law, international environmental law and international water law. It aims at providing a holistic approach to the issue by clarifying international obligations and developing recommendations in the form of principles.

Howden: The Community of Interest Approach in International Water Law

Julie Gjørtz Howden (Norwegian Ministry of Climate and Environment) has published The Community of Interest Approach in International Water Law: A Legal Framework for the Common Management of International Watercourses (Brill | Nijhoff 2020). Here's the abstract:

In The Community of Interest Approach in International Water Law, Julie Gjørtz Howden identifies the normative elements of the community of interest approach (COIA) in international water law, and demonstrates how the approach can provide a legal framework for common management of international watercourses. Through analyses of various features of international watercourse cooperation and common management, the book determines the main principles and the underlying values of the COIA, and discusses how the approach contributes to the development of international water law.

Although the COIA is one of the central theories of international water law, very few analytical accounts of its legal features exist. Through The Community of Interest Approach in International Water Law, Howden offers a new and fresh approach to international water law that pulls together questions of holistic management, State sovereignty, public participation and river basin organisations into the analyses of the COIA and its relevance for managing transboundary watercourses today.

Rossi: Blood, Water, and the Indus Waters Treaty

Christopher R. Rossi (Univ. of Iowa - Law) has posted Blood, Water, and the Indus Waters Treaty (Minnesota Journal of International Law, Vol. 29, no. 2, p. 103, 2020). Here's the abstract:

The contested and divided province of Jammu and Kashmir, situated on the western side of the Hindu Kush Himalayan Mountains is one of the most dangerous and heavily militarized places on earth. It is a Muslim-majority borderland harboring contested territorial claims of three nuclear powers—India, Pakistan, and China. Through it flow the headwaters of the six major tributaries that form the massive Indus Basin, the essential fresh water source for Pakistan and for upwards of 300 million Indians and Pakistanis. Since 1960, the unusual Indus Waters Treaty has governed the use of these waters. The treaty forwards a water-division rather than a water-sharing arrangement. Pakistan is assigned the three major western tributaries (the Indus, Jhelum, and Chenab Rivers), and India is assigned the three eastern tributaries (the Ravi, Beas, and Sutlej Rivers). Multiple changes in circumstance, principally due to population growth and climate change, tax the operation of the treaty, which has been praised as one of the world’s most successful transboundary water treaties and perhaps the best example of decades-long cooperation between these two bitter enemies. Recent events, linking Pakistan-based terrorist attacks, Hindu nationalism, and constitutional changes to the status of Indian-controlled Jammu and Kashmir, resulted in India’s announcement of its intention to capture all unutilized water flowing into Pakistan from its eastern tributaries. This hard legalization of the terms of the treaty threatens to take the Indus Waters Treaty to its breaking point while evincing existential anxieties in Pakistan over tightening water supply that already make it the third most water stressed country in the world. This article reviews the combustible interface of international riparian law and international customary law with the geopolitics of one of the most dangerous corners of the world, suggesting that the business as usual approach for the Indus Waters Treaty no longer provides a meaningful solution. Backed into a corner from which no ready pathway for revision prevails, this article argues that the parties can only at best undertake much needed domestic breathing space for the Indus Waters Treaty, until that time when an environment for meaningful hydro-diplomacy can take hold.

Meshel & Yahya: International Water Law and Fresh Water Dispute Resolution: A Coasean Perspective

Tamar Meshel (Univ. of Alberta - Law) & Moin A. Yahya (Univ. of Alberta - Law) have posted International Water Law and Fresh Water Dispute Resolution: A Coasean Perspective. Here’s the abstract:

When it comes to resolving interstate freshwater disputes, International Law has developed a set of rules that relate to both the substance of these disputes, and the conduct of the disputing countries. ‘Equitable and reasonable utilization’ is commonly considered as the leading ‘substantive’ rule, ‘no significant harm’ as subsidiary to it, and the ‘duty to cooperate’ as the central ‘procedural’ rule. The purpose of this article is to analyze the merits of these substantive and procedural rules under the lens of the celebrated Coase theorem. The second part of the Coase Theorem observes that if transaction costs are present, then the legal rule governing the dispute between two parties should be one that minimizes the bargaining costs. This will ensure that the legal rule will generate an optimal allocation of resources. When it comes to international freshwater disputes there are usually high transaction costs such as unequal and asymmetric access to information by both the disputing parties and adjudicating tribunal, enforcement uncertainty, and unclear political goals of the parties. Therefore, a liability rule such as ‘equitable and reasonable utilization’ only furthers the uncertainty and bargaining costs, whereas a property rule such as ‘no significant harm’ is better at achieving dispute resolution (both theoretically and empirically). Moreover, when a so-called procedural rule such as the ‘duty to cooperate’ is imposed on the parties, this ensures a better negotiation environment, which leads to better dispute resolution outcomes even when imposed by a third party.

Kornfeld: Transboundary Water Disputes: State Conflict and the Assessment of their Adjudication

Itzchak E. Kornfeld (Hebrew Univ. of Jerusalem - Law) has published Transboundary Water Disputes: State Conflict and the Assessment of their Adjudication (Cambridge Univ. Press 2019). Here's the abstract:

One of the most challenging aspects of climate change has been the increased pressure on water resources limited by droughts and new rain patterns, which has been exacerbated by rapid modernization. Due to these realities, disputes across national borders over use and access to water have now become more commonplace. This study analyzes the history and adjudication of transboundary water disputes in five international courts and tribunals, two US Supreme Court cases, and boundary water disputes between the United States and Canada and the United States and Mexico. Explaining the circumstances and outcomes of these cases, Kornfeld asks how effective the courts and tribunals have been in adjudicating them. What kind of remedies have they fashioned and how have they dealt with polycentric and sovereignty issues? This timely work examines the doctrine of equitable allocation of transboundary water resources and how this norm can be incorporated into international law.

Weber: Grundwasser im Völkerrecht

Carolin Mai Weber has published Grundwasser im Völkerrecht: Eine Untersuchung der Draft Articles der UN International Law Commission über das Recht grenzüberschreitender Aquifere im Kontext des internationalen Wasserrechts (Duncker & Humblot 2019). Here's the abstract:

Angesichts der globalen Wasserkrise steigt die Bedeutung von Grundwasservorkommen als Wasserressource stetig an. Grundwasservorkommen – auch Aquifere genannt – weisen eine hohe Anfälligkeit für Verschmutzung und Raubbau auf. Auch ist die Mehrzahl der Aquifere grenzüberschreitend. Vor diesem Hintergrund erscheint eine rechtliche Regelung dieser bedeutenden Wasserressource unerlässlich. Diese Arbeit setzt hier an und analysiert, inwiefern die jüngste Entwicklung im internationalen Grundwasserrecht – die Draft Articles der UN International Law Commission über das Recht grenzüberschreitender Aquifere – geeignet ist, den Schutz und die Erhaltung von grenzüberschreitenden Grundwasservorkommen effektiv zu regeln sowie eine angemessene Nutzung und Verteilung der Ressource zu gewährleisten. Gegenstand der Untersuchung sind Fragen zum rechtlichen Rahmen, zum Management grenzüberschreitender Aquifere sowie zu aktuellen Herausforderungen im internationalen Wasserrecht.

Tanzi: The Consolidation of International Water Law

Attila Tanzi (Univ. of Bologna - Law) has published The Consolidation of International Water Law: A Comparative Analysis of the UN and UNECE Water Conventions (Editoriale Scientifica 2017). Here's the abstract:

The present analysis will consider first the basic principles of the international water law discourse as consolidated by the two Conventions, and then their respective scope ratione materiae and ratione personae. The ensuing assessments will be made within the framework of both treaty and customary law with a view to maximizing the practical guideline function of the two instruments for the conduct of co-riparian States in their mutual relations, and in relation to a transboundary watercourse. Such a function is dual in nature: the regulatory framework of the two Conventions requires both the adoption of domestic legislative and administrative measures on the use, protection and conservation of watercourses, and the negotiation of new watercourse agreements with a view to further cooperation on specific international watercourses.

Magsig: International Water Law and the Quest for Common Security

Bjørn-Oliver Magsig (Helmholtz Centre for Environmental Research) has published International Water Law and the Quest for Common Security (Routledge 2015). Here's the abstract:

The world’s freshwater supplies are increasingly threatened by rapidly increasing demand and the impacts of global climate change, but current approaches to transboundary water management are unsustainable and may threaten future global stability and international security. The absence of law in attempts to address this issue highlights the necessity for further understanding from the legal perspective.

This book provides a fresh conceptualisation of water security, developing an operational methodology for identifying the four core elements of water security which must be addressed by international law: availability; access; adaptability; and ambit. The analysis of the legal framework of transboundary freshwater management based on this contemporary understanding of water security reveals the challenges and shortcomings of the current legal regime. In order to address these shortcomings, the present mindset of prevailing rigidity and state-centrism is challenged by examining how international legal instruments could be crafted to advance a more flexible and common approach towards transboundary water interaction.

The concept of considering water security as a matter of ‘regional common concern’ is introduced to help international law play a more prominent role in addressing the challenges of global water insecurity. Ways for implementing such an approach are proposed and analysed by looking at international hydropolitics in Himalayan Asia. The book analyses transboundary water interaction as a ‘case study’ for advancing public international law in order to fulfil its responsibility of promoting international peace and security.