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As discussed above, the main stakeholders in the management of shared basins are the States.
Hence, in the end, irrespective of whether disputes between communities over water use occur at a
local level, such disputes are interstate disputes thus requiring diplomatic or judicial intervention at
the international level.
There are several reasons why disputes arise over the use of water within a shared basin. While they
arise in some instances because of water quality, in others they result from a lack of water that is
needed for various uses.
Here are some of the most common disputes involving water.
A classic example is when the water demand exceeds the water supply. This could be the result of
the overexploitation of water resources or of inconsistencies in seasonal water availability. A classic
example is when a downstream State does not receive suffcient water for meeting its needs.
Other disputes can occur due to bodies of water being contaminated. In this particular case, as
previously explained, international law does not totally ban pollution, but regulates the amount of
toxic materials that come from certain sources and specifc substances. This is provided for in a num-
ber of agreements which establish what substances are banned from being discharged, and which
materials must be regulated to avoid their excessive discharge which could cause damage and have
an impact on the right of other States to the equitable use of water. In such situations, it is important
to bear in mind that, unless otherwise agreed by the States concerned, the activities of a State do
not necessarily establish priorities as to the use of waters within shared basins, except when it is a
question of meeting basic human needs.
Another type of confict can occur when overall use exceeds the basin’s capacity to provide the
suffcient quantity of water or, in other words, when a confict arises between the uses or the
human consumption of water and the amount of water needed for the environment. In recent years
the environment has increasingly been acknowledged as a user of water and, as a result, we are
beginning to see a trend in establishing minimum fows and/or environmental fows, making sure
that pre-determined reserves or permanent levels of water are maintained within the rivers, so that
essential services can continue to be provided103
The environment and ecosystems are users of water but they also play an irreplaceable role in its
storage, in aquifer replenishment, in the purifcation and maintenance of water quality and quantities.
No other “user” can guarantee or carry out these roles of “provider”: without ecosystems and without
nature, there is no water.
103 Refer to Chapter 5.4 for more information on the conservation of freshwater ecosystems.
Rethinking the institutions
Disputes may arise between traditional and new uses of water from Basin States. There is no special
protection for existing uses of water, in the sense that international law does not give any form of
priority to these historical uses. Current uses of water can even become inequitable or unfair if, due
to a change in circumstances, another State is prevented from using a portion or share of a shared
basin’s water, which should be available based on the State´s right to equitable use.
Closely connected with the above stated type of confict is the dispute that arises when a State does
not use its share of water within a shared basin. As previously explained in Chapter 2, the States
that are part of a shared basin are part of a community of interests that prevents some of them from
having different rights over others, regardless of their geographical location within the water basin
(whether upstream or downstream).
The fundamental principle in this particular context is equitable use, according to which States may
use more water if it is deemed equitable based on certain factors. We can emphasise this by looking
at a hypothetical example of a basin, shared by four States, in which fair use does not necessarily
mean that each State is entitled to a portion equal to 25% of the water.
To continue with this example, the non-utilisation of a shared portion of water from any of the four
States does not imply that the water can be saved for future use and the State cannot prevent other
States from using it. If a State wants to save its share of the basin and claim it later, the other States
would be in a position to refuse this on the basis that there is no priority given to a historic use or a
vested right since this could limit the right to the equitable use of water for States.
Other conficts may arise due to natural causes such as foods or fooding. A food can also originate
from human behaviour, for example if an excessive amount of water was released from an upstream
dam, therefore causing fooding to a downstream State. Lastly, a dispute could arise from various
types of industrial accidents, such as the spillage of a harmful or dangerous substances into the
water, potentially killing enormous quantities of fsh, polluting the water and making it unft for human
consumption. This has happened on several occasions, the most recent example being the pollution
of the Tisza River due to a cyanide spill at the Baia Mare mine in Romania, affecting Hungary and
Serbia (downstream). There was also the case of the explosion of a chemical plant in the Chinese city
of Jilin, located in the upper reaches of the Songhua River about 140 km away from the populous city
of Harbin. This disaster resulted in a toxic cloud and caused a natural disaster on the Songhua River,
a tributary of the Amur River, shared between China and Russia.
According to the fundamental principle of equitable use of shared waters, States must solve disputes
and fnd a solution acceptable to all parties involved. Ideally, dispute resolution should serve as the
basis for establishing a long-term solution, which can be implemented through the signing of an
agreement establishing the mechanisms for the future management of the shared basin.
Several mechanisms exist at the international level for the resolution of disputes between States:
The United Nations Charter establishes in Article 33, that the parties involved in a dispute, the con-
tinuation of which could very well endanger international peace keeping processes and international
security must, above all else, seek a solution through negotiation, research, mediation, conciliation,
arbitration and judicial settlement, by resorting to regional organisations or agreements, or any other
peaceful means of their choice.
In the end, the use of a certain number these mechanisms depends on the States involved in the
confict, and on various circumstances such as, for example, whether there already is a signed agree-
ment between the parties. Such a treaty can set out the initial steps and mechanisms to be followed
in the event of a dispute. In the absence of such a treaty, the resolution of the confict will depend on
the nature of the dispute itself, i.e. whether the dispute is of a technical or legal nature, and whether
the relationship that exists between the States is good or tense, etc.
Usually, the frst step is to enter into negotiations. Such negotiations can be: bilateral, multilateral, by
correspondence or through diplomatic conferences.
Diplomatic negotiations may be preceded by consultations, to exchange views and relevant informa-
tion among conficting parties.
One mechanism that can be successfully combined to the above example is the use of good offces,
led by a neutral State in order to bring the States to the negotiating table.The use of good offces
ends when States sit down to negotiate.
Another alternative is mediation, which consists of the intervention of a third party that aims to provide
assistance to the States that are in confict to fnd a solution. The mediator is a kind of facilitator, but is
also able to suggest specifc possibilities for arriving at a solution. Although mediation is not manda-
tory, an agreement still needs to be entered in order to fnd an effective solution.
The United Nations Charter lists research as another type of dispute resolution mechanism. Very
often, disputes arise over water use due to disagreements on technical matters such as the specifc
need to maintain a certain fow, the technical aspects regarding the construction of dams or dykes,
or tolerance levels concerning the discharge of certain substances. These types of disagreements
can be solved through research carried out by a group of independent and unbiased experts, who
can prepare technical reports to facilitate negotiations between the parties, thus avoiding losing time
arguing on technical aspects.
When States resort to conciliation, they agree to appoint a third party in order examine the facts and
propose the terms under which they seek to solve the confict.
Some agreements on shared basins establish arbitration as the mechanism for dispute resolution on
the application and interpretation of the provisions of such agreements. Such arbitration can either
be an optional mechanism for States or a mandatory procedure which must be used.
Regardless of the nature of the arbitration procedure (voluntary or compulsory), it can serve as an
incentive for Parties to use diplomatic measures such as negotiation for the resolution of disputes.
When no binding arbitration mechanism is in place, disputing States must sign an agreement to sub-
mit the matter to arbitration. Arbitration allows States to choose how the arbitral tribunal is organised
(usually, each State appoints at least one arbitrator, which can then appoint a third party), as well as
the location of the tribunal and the issues to be decided on. The arbitral tribunal adopts decisions
by majority vote. The decision or award is binding for the Parties. Chapter VI details three examples
of disputes solved through arbitration: the Lake Lanoux, the San Juan River and the Helmand River
The Permanent Court of Arbitration is another alternative for those States having chosen arbitra-
tion as a way of solving disputes on water-related matters. This court, established in 1899 through
Rethinking the institutions
, offers its services to States involved in a dispute. These States must sign an agreement
for using these services. In 2001, the Permanent Court of Arbitration adopted a set of rules on envi-
ronmental disputes of an optional and non-mandatory nature, that intend facilitate the resolution of
disputes linked to the environment and the use of natural resources.
The fnal resolution mechanism available to States is judicial settlement, which involves submitting
disputes to an international tribunal such as the International Court of Justice105
Only States can bring cases before the Court for subsequent consideration. To do this, the State
must express its agreement. No State can be brought to Court without its prior consent. This agree-
ment or consent can be evidenced in different ways. Some agreements for the regulation of specifc
basins establish the jurisdiction of the International Court of Justice as court of last resort for solv-
ing disputes between the States Parties. States may submit the matter to the Court by a special
agreement. Lastly, States may express their consent to refer to the International Court of Justice
for settling a dispute through a unilateral declaration according to which the Court´s jurisdiction is
recognised. The Court’s decisions are binding to the States.
Chapter VI outlines in detail two cases settled by both the International Court of Justice and the
Permanent Court of International Justice (its predecessor): The Gabcikovo-Nagymaros case and the
Oder River case, respectively.
The 1997 Convention contains specifc provisions concerning the settlement of disputes related to
the interpretation or application of the Convention106
, and to which these provisions apply, without
prejudice to any existing agreement between the States.
In accordance with these provisions, States should try to solve any disputes through negotiation.
If the dispute can not be solved through negotiation, States may jointly seek good offces, media-
tion and/or conciliation from a third party. They can also use mechanisms or institutions established
through a specifc agreement between the States, or they may agree to submit the dispute to arbitra-
tion or for consideration by the International Court of Justice.
The procedure established by the 1997 Convention is summarised as follows:
Any of the States involved in a confict may request to enter into negotiation with the other State
If negotiations fail 6 months after the original request, any Party, unless otherwise agreed upon,
may refer the dispute to an impartial procedure to determine the facts. Such decision shall be
made by a committee comprising a single member appointed by each Party involved, and a
third member who shall be the committee’s chairman, this person being of a nationality other
than the countries involved in the dispute. The committee will prepare a report to be submit-
ted to the parties involved, with recommendations for an equitable solution to the dispute.
104 The Hague Convention on the Pacifc Settlement of International Disputes.
105 The International Court of Justice, established in 1945, is the main judicial body of the United Nations
system. Through its statute, the Court is in charge of its own steering and operation. Its Headquarters are in
The Hague, The Netherlands.
106 Article 33 of the 1997 Convention.
At the time of ratifying, accepting or approving the Convention, or at any time thereafter, a
participating country may declare (in writing to the Depositary of the Convention) that it accepts as
compulsory and under no special agreement with other participating countries, the following:
That the confict can be submitted to the International Court of Justice, or
That the dispute can be submitted to arbitration by a tribunal, unless the parties agree to
the contrary, in accordance with the provisions set out in the Annex of the Convention on
The dynamics of change
This chapter builds on some of the main issues required for improving the governance structures
of shared waters, such as: the negotiation and preparation of agreements, public participation,
decentralised environmental governance, environmental impact assessments of projects, works and
activities, and the conservation of ecosystems.
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