P. 1
Governance of Shared Waters

Governance of Shared Waters

|Views: 95|Likes:
Published by Uğur Özkan

More info:

Published by: Uğur Özkan on Dec 21, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

10/28/2013

pdf

text

original

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.

76

77

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.

78

79

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

Delta cases.

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

78

79

Rethinking the institutions

a treaty104

, 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

or States.

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.

80

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

arbitration.

81

The dynamics of change

5

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.

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->