(BY HUGO)

In a speach given on 4 June 2009 at the kick-off meeting for the 2012 World Water Forum, the French Ministry for Ecology, Energy, Sustainable Development and the Sea confirmed that France was in the process of adhering to the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses. This decision was voted by the French National Assembly on 8 April 2010 and will soon pass before the French Senate. The Minister's speach is available here (in French) on the World Water Council website.

France would thus follow Guinea-Bissau on 19 May 2010 as well as Spain and Tunesia in 2009 in acceding to the UN Convention. The Convention requires 35 contracting parties to enter into force (see sections 35 and 36). Current status of the Convention and list of the parties can be found here.

(BY HUGO)

Thanks to collegue BO for the heads up on the news that Kenya joined Ethiopia, Rwanda, Uganda and Tanzania, and signed the recent Nile Basin Cooperative Framework Agreement: the news can be found here and here.

As a result, only one more signature is required from the 9 basin countries for the agreement to come into force.

(BY HUGO)

As reported by AlJazeera and BBC, four of nine Nile Basin countries - Ethiopia, Rwanda, Uganda and Tanzania - have signed on 14 May 2010 a new treaty on the equitable sharing of the Nile waters despite strong political opposition from Egypt and Sudan.

The new agreement, the Nile Basin Co-operative Framework, is to replace a 1959 accord between Egypt and Sudan that gave them de facto control of more than 90 per cent of the water flow. The agreement requires signature of at least six countries and remains open for one year.

Collegue Musa Abseno has been heavily involved in the long negociation process for the Nile Basin Co-operative Framework.

(BY HUGO)

Collegue BO has forwarded the first of a no doubt long list of case comments on the Uruguay River Pulp Mills case: here is ASIL's comment by Cymie Payne.

ASIL's comment claims that «the Court recognized environmental impact assessment as a practice that has become an obligation of general international law in these situations.»

If this is the case, does that mean that aspects of text of the UN 1997 Convention are already obsolete even before the Convention enters into force?: article 12 mentions environmental impact assesments but appears not to impose an specific positive obligation to perform such an assessment.

(BY HUGO)

On 20 April 2010, the International Court of Justice has rendered judgement in the case concerning pulp mills on the River Uruguay between Argentina and Uruguay. After a very quick initial reading, this post attempts to provide a crude preliminary picture of the salient legal points. More will follow in a latter post with respect to substantive analysis, but many aspects of this decision already appear interesting in the context of a reflection on the interplay between international water law and national legal regimes.

As for the Gabčíkovo–Nagymaros case, this most recent decision from the IJC can be expected to have a noticeable impact in international water law doctrine. Lined-up against each other in the Uruguay case were such heavy weights as Sands, Boyle McCaffrey and Boisson de Chazournes (see §§167-168 for the opinion of the Court on that).

The River is governed by a specific regime established through a Statute from 1975 (see §§26-27).

Interestingly for the wider relevance of the case to general international water law, article 1 of the 1975 Statute states that the parties adopted it «in order to establish the joint machinery necessary for the optimum and rational utilization of the River Uruguay, in strict observance of the rights and obligations arising from treaties and other international agreements in force for each of the parties». (emphasis added)

The ICJ defines the scope of its jurisdiction at §§48-66. Argentina maintains that referral clauses contained in the Statute make it possible to incorporate and apply obligations arising from other treaties and international agreements binding on the Parties. To this end, Argentina refers to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, the 1971 Ramsar Convention on Wetlands of International Importance, the 1992 United Nations Convention on Biological Diversity, and the 2001 Stockholm Convention on Persistent Organic Pollutants. The ICJ concludes that:

«The fact that Article 1 does not require that the “treaties and other international agreements” should be in force between the two parties thus clearly indicates that the 1975 Statute takes account of the prior commitments of each of the parties which have a bearing on it.

(...)

(T)he various multilateral conventions relied on by Argentina are not, as such, incorporated in the 1975 Statute. For that reason, they do not fall within the scope of the compromissory clause and therefore the Court has no jurisdiction to rule whether Uruguay has complied with its obligations thereunder.

(...)

The Parties nevertheless are in agreement that the 1975 Statute is to be interpreted in accordance with rules of customary international law on treaty interpretation, as codified in Article 31 of the Vienna Convention on the Law of Treaties. The Court has had recourse to these rules when it has had to interpret the provisions of treaties and international agreements concluded before the entry into force of the Vienna Convention on the Law of Treaties in 1980.

(...)

In the interpretation of the 1975 Statute, taking account of relevant rules of international law applicable in the relations between the Parties, whether these are rules of general international law or contained in multilateral conventions to which the two States are parties, nevertheless has no bearing on the scope of the jurisdiction conferred on the Court under Article 60 of the 1975 Statute, which remains confined to disputes concerning the interpretation or application of the Statute.»

The ICJ finds that Uruguay has breached its procedural obligations under the 1975 Statute, and concludes that declaration by the Court of this breach constitutes appropriate satisfaction. In respect to the differentiation between procedural and substantive obligations, §§75-79 are particularly interesting. The ICJ states:

«78.(...) nowhere does the 1975 Statute indicate that a party may fulfil its substantive obligations by complying solely with its procedural obligations, nor that a breach of procedural obligations automatically entails the breach of substantive ones. Likewise, the fact that the parties have complied with their substantive obligations does not mean that they are deemed to have complied ipso facto with their procedural obligations, or are excused from doing so. Moreover, the link between these two categories of obligations can also be broken, in fact, when a party which has not complied with its procedural obligations subsequently abandons the implementation of its planned activity.

79. The Court considers, as a result of the above, that there is indeed a functional link, in regard to prevention, between the two categories of obligations laid down by the 1975 Statute, but that link does not prevent the States parties from being required to answer for those obligations separately, according to their specific content, and to assume, if necessary, the responsibility resulting from the breach of them, according to the circumstances.»

On whether Uruguay has breached its substantive obligation to contribute to the optimum and rational utilization of the River as per article 1 of the Statute, the IJC states:

«175. The Court considers that the attainment of optimum and rational utilization requires a balance between the Parties’ rights and needs to use the river for economic and commercial activities on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities, on the other. The need for this balance is reflected in various provisions of the 1975 Statute establishing rights and obligations for the Parties, such as Articles 27, 36, and 41.

(...)

177. Regarding Article 27, it is the view of the Court that its formulation reflects not only the need to reconcile the varied interests of riparian States in a transboundary context and in particular in the use of a shared natural resource, but also the need to strike a balance between the use of the waters and the protection of the river consistent with the objective of sustainable development.

(...)

The Court wishes to add that such utilization could not be considered to be equitable and reasonable if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account. Consequently, it is the opinion of the Court that Article 27 embodies this interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development.

(...)

183. It is recalled that Article 36 provides that “[t]he parties shall co-ordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it”.

184. It is the opinion of the Court that compliance with this obligation cannot be expected to come through the individual action of either Party, acting on its own. Its implementation requires co-ordination through the Commission. It reflects the common interest dimension of the 1975 Statute and expresses one of the purposes for the establishment of the joint machinery which is to co-ordinate the actions and measures taken by the Parties for the sustainable management and environmental protection of the river.

(...)

187. The Court considers that the obligation laid down in Article 36 is addressed to both Parties and prescribes the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct. Both Parties are therefore called upon, under Article 36, to exercise due diligence in acting through the Commission for the necessary measures to preserve the ecological balance of the river.

188. This vigilance and prevention is all the more important in the preservation of the ecological balance, since the negative impact of human activities on the waters of the river may affect other components of the ecosystem of the watercourse such as its flora, fauna, and soil. The obligation to co-ordinate, through the Commission, the adoption of the necessary measures, as well as their enforcement and observance, assumes, in this context, a central role in the overall system of protection of the River Uruguay established by the 1975 Statute. It is therefore of crucial importance that the Parties respect this obligation.

189. In light of the above, the Court is of the view that Argentina has not convincingly demonstrated that Uruguay has refused to engage in such co-ordination as envisaged by Article 36, in breach of that provision.

(...)

190. Article 41 provides that:
“Without prejudice to the functions assigned to the Commission in this respect, the parties undertake:
(a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and [adopting appropriate] measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies;
(b) not to reduce in their respective legal systems:
1. the technical requirements in force for preventing water pollution, and
2. the severity of the penalties established for violations;
(c) to inform one another of any rules which they plan to prescribe with regard to water pollution in order to establish equivalent rules in their respective legal systems.”

(...)

195. In view of the central role of this provision in the dispute between the Parties in the present case and their profound differences as to its interpretation and application, the Court will make a few remarks of a general character on the normative content of Article 41 before addressing the specific arguments of the Parties. First, in the view of the Court, Article 41 makes a clear distinction between regulatory functions entrusted to CARU under the 1975 Statute, which are dealt with in Article 56 of the Statute, and the obligation it imposes on the Parties to adopt rules and measures individually to “protect and preserve the aquatic environment and, in particular, to prevent its pollution”. Thus, the obligation assumed by the Parties under Article 41, which is distinct from those under Articles 36 and 56 of the 1975 Statute, is to adopt appropriate rules and measures within the framework of their respective domestic legal systems to protect and preserve the aquatic environment and to prevent pollution.

(...)

196. Secondly, it is the opinion of the Court that a simple reading of the text of Article 41 indicates that it is the rules and measures that are to be prescribed by the Parties in their respective legal systems which must be “in accordance with applicable international agreements” and “in keeping, where relevant, with the guidelines and recommendations of international technical bodies”.

197. Thirdly, the obligation to “preserve the aquatic environment, and in particular to prevent pollution by prescribing appropriate rules and measures” is an obligation to act with due diligence in respect of all activities which take place under the jurisdiction and control of each party. It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party. The responsibility of a party to the 1975 Statute would therefore be engaged if it was shown that it had failed to act diligently and thus take all appropriate measures to enforce its relevant regulations on a public or private operator under its jurisdiction.

(...)

262. The Court is of the opinion that as part of their obligation to preserve the aquatic environment, the Parties have a duty to protect the fauna and flora of the river. The rules and measures which they have to adopt under Article 41 should also reflect their international undertakings in respect of biodiversity and habitat protection, in addition to the other standards on water quality and discharges of effluent. The Court has not, however, found sufficient evidence to conclude that Uruguay breached its obligation to preserve the aquatic environment including the protection of its fauna and flora.» (emphasis added)

The IJC concludes Uruguay has not breached its substantive obligations under the 1975 Statute of the River Uruguay.

(BY HUGO)

Greece acceded to the Convention on the Law of the Non-Navigational Uses of International Watercourses on 2 December 2010 (see UN Treaty Collection Database). Greece has become the 21st country party to the Convention. According to article 36 of the Convention, it shall enter into force when 35 countries are party to it.

The WWF reports on the motivations behind Greece's decision. According to Tina Birbili, Greek Minister of Environment, Energy and Climate Change:

«The promotion of transboundary cooperation on water issues is inherent to Greece’s foreign policy, since around 25% of its surface water extends to or originates from neighbouring countries. The UN Watercourses Convention together with the EU Water Framework Directive constitute the necessary background and reference point for advancing the transboundary negotiations that Greece has initiated with Albania and the Former Yugoslav Republic of Macedonia, on the Prespa Lake; with Turkey, on the Evros basin; and with Bulgaria, on the Nestos, Strymon, Ardas, and Evros basins.»

In light of the above, 2 interesting points are: 1) the blurring of boundaries between international and national law through supranational law with the EU Water Framework Directive; 2) Greece's adherence to the principles of equitable and reasonable use as well as no harm for the management of transboundary waters with Turkey.

Turkey is principally an upstream state sharing waters with parched downstream neighbours in the Fertile Crescent. Turkey's position on transboundary waters is a traditional stance leaning towards the Harmon doctrine. Now, it seems that the principles of the 1997 Convention might be furthered against one of its prominent adversary due to the combination of Turkey's desire to join EU with water management reform in Greece under the WFD. Of note is the fact that Turkey is the state that required a vote on the 1997 UN Convention and voiced strong criticisms in UN plenary meeting at that time (Mr. Çelem, 21 May 1997):

«The draft Convention under consideration today is solely a framework Convention, as reaffirmed by General Assembly resolution A/51/206 and by draft resolution A/51/L.7, which is before us today. The mandate of the Sixth Committee to elaborate a framework convention was established very clearly by General Assembly resolution A/51/206. Accordingly, the draft Convention should have set forth only general principles and its application should have depended upon the drawing up of specific agreements which take into account the particular characteristics of the watercourses. In our view, neither the title nor the content of the draft Convention correspond to this provision of both resolutions.

In this respect, the draft Convention goes far beyond the scope of a framework convention and, in contradiction to its intent and nature, establishes a mechanism for planned measures. This has no basis in general and customary international law. Furthermore, this mechanism creates an obvious inequality between States by stipulating that, in order to implement its planned measures, a State belonging to a certain category is obliged to obtain the prior consent — tantamount to a veto right — of another State belonging to a certain other category.

It should also be stressed that it is not appropriate for a framework convention to foresee any compulsory rules regarding the settlement of disputes and not to leave this issue to the discretion of the concerned States. Furthermore, the draft Convention does not make any reference to the indisputable principle of the sovereignty of the watercourse States over the parts of international watercourses situated in their territory. The draft Convention should clearly have established the primacy of the fundamental principles of equitable and reasonable utilization over the obligation not to cause significant harm. The present text is liable to create confusion as far as implementation of the whole Convention is concerned.

In conclusion, my delegation would like to state that the Republic of Turkey does not intend to sign the Convention on the Non-Navigational Uses of International Watercourses and that this Convention does not and shall not have any legal effect for Turkey in terms of general and customary international law. For the reasons I have just explained, my delegation will vote against draft resolution A/51/L.72.»

(BY HUGO)

The UNESCO Centre for Water Law, Policy & Science organises a Symposium and Workshop on International Law and Transboundary Freshwaters - June 21-24, 2010.

Key questions which will be covered are:

• What is international water law and how does it promote regional peace and security?

• How do international legal frameworks support national decision making related to transboundary water resources planning and management?

• Who is entitled to use transboundary freshwater resources – why and how?

• How does international law reconcile competing claims over transboundary freshwaters?

• What diplomatic strategies and tactics can nation-states employ to secure the best legal outcomes possible in light of their transboundary water interests?

(BY HUGO)

A cooperation agreement on environmental matters regarding the management of Lake Champlain between New York, Vermont and Québec (the Agreement - French version here), signed in March 2010, was confirmed by governmental decree 918-2010 on 3 November 2010.

The Agreement is the latest in a series of agreements between the parties that date back to 1988. In 1990, the American Congress passed the Lake Champlain Special Designation Act (Public Law 101-596) leading to the creation of the Lake Champlain Basin Program, which is now implemented through the Opportunities for Action: An Evolving Plan for the Future of the Lake Champlain Basin (the French version of the Plan, dated 2003, provides details about related institutional and legal frameworks).

The Agreement confirms the role of the Lake Champlain Steering Committee in the cooperative management of the basin. The Steering Committee is notably mandated to implement the Plan and foster interactions between regulation and management programmes related to the monitoring of Lake Champlain (see section 2.6). The Agreement and the Plan recognise the ecosystem approach to basin management.

(BY HUGO)

A new book anounced for publication on 01 July 2010 could look at the flash point between international water law (which is fundamentally based on the principle of equitable and reasonable use) and international trade law.

International Trade in Water Rights: The Next Step by Aline Baillat Ballabriga apparently argues that the recognition of water as an economic good in domestic water reform will increasingly impact the management of international watercourses.

This is an area already covered to some extent. However, Ballabriga's new book might be exciting, as the table of contents could be interpreted so as to foster controversy.

For example, a mention of the «Property Regime of International Watercourses» might be percieved as a new approach on the traditional view of natural resources - such as land and water - being objects of state dominium in international law (dominium is not property).

Also, the choice of case-studies appears somewhat ambiguous, as the Murray-Darling is surely not an international basin. To what extent lessons can be drawn from it to enlighten the main argument?

This might be material for a nice book review...

(BY HUGO)

The 2010 Annual Symposium of the French Society for International Law focuses on water in international law. The Symposium will take place on 3-5 June 2010 in Orléan, France.

The 4 workshops of the Symposium are:

- Regional cooperation for water resources

- Corruption and monopoly in the water sector

- Water conflicts and perspectives in development

- Water resources and protection of the environment in international law

The Symposium appears to encourage participation from young researchers. Call for contribution is open until 15 March.

(BY HUGO)

The US Supreme Court dismissed Michigan's motion for preliminary injunction today (see previous posts and Dan Egan's article).

Hearing on the merits will pake place on February 19, with judgement rendered possibly not before a few months.

In the meantime, it is reported that DNA sampling taken on December 8th would confirm the presence of Asian Carp in Lake Michigan...

Is this the demonstration that article 20 of the UN 1997 Convention on non-navigational uses of international watercourses is not customary international law?

(BY HUGO)

This link is to a conference held in Edinburgh on the global challenges of effective water management in the oil field.

The role of the regulator was stressed in reservoir preparation to maximize economic recovery factors and in compliance with environmental laws.

With respect to the regulation of marine discharges of produced water, Michael Hannan of the UK department of Energy and Climate Change «encouraged operators to keep abreast of future risk-based discharges limits being proposed by OSPAR - the Northeast Atlantic Convention that sets limits for marine discharges.»

This appears to constitute another example of regulation translating environmental externality from water use into internalised business costs for energy operators.

The CEPMLP could be interested in this.

(BY HUGO)

Ontario has filed a brief before the US Supreme Court in the dispute regarding the closing of the Chicago Sanitary and Ship Canal to prevent the invasion of the Great Lakes and St-Lawrence River Basin.

Ontario supports Michigan's motion and notably argues that:

- The introduction of the Asian Carp to the Great Lakes poses the threat of immediate and irreparable environmental harm;

- Damages suffered as a result of an Asian Carp invasion would be crippling to Ontario's fishing economy;

- Prevention of the invasion is preferable and more effective than after the fact erradication and control;

- The ecosystem approach to Great Lakes management must be consensual and collaborative, and involve Canadian authorities, as shown by the transnational legal framework currently in place.

Of note is the fact that all parties appear to have agreed to Ontario's intervention as Amicus Curiae to the Court.

(BY HUGO)

The possible invasion of the Great Lakes and St-Lawrence River Basin by the Asian Carp has re-ignited a dispute between riparian American States.

This invasive species artificially introduced in Southern U.S.A. for fish farming purposes has colonised the Mississippi and its tributaries since the 1970s.

The Asian Carp is now in a position to invade the Great Lakes basin through the Chicago Sanitary and Ship Canal piercing the continental divide. Recently, DNA traces of the Carp have been found beyond the Canal's electrified barriers blocking access to Lake Michigan.

To prevent colonisation of the Lakes by the Carp, which would wreak havock on their ecosystems, the State of Michigan recently filed a petition to the Supreme Court of the United-States in order to modify the decree governing the Chicago Canal water withdrawal as per Wisconsin et al. v. Illinois et al.

Michigan seeks an order from the Supreme Court to close the locks on the Chicago Canal and ultimatly to modify the means by which water is withdrawn from the Lakes in order to prevent the Asian Carp invasion.

This has generated intense media coverage in the last month (New York Times - ABC News - Great Lakes United). A comprehensive investigation from Dan Egan providing background to the issue was published in 2006 by the Milwaukee Wisconsin Journal Sentinel.

Excellent legal coverage is provided here by Professor Noah Hall, a promient North American water law expert involved as counsel in the dispute.

One issue raised by this dispute pertains to the marginalisation of the two Canadian provinces in the Great Lakes St-Lawrence River Basin, Ontario and Québec. Because the conflict will be settled in the U.S.A. before the Supreme Court in the context of a pre-existing inter-state dispute to which the provinces are not party, the possibility for the Provinces' meaningful involvement in a solution to the problem is remote.

This sheds another light on the consensual nature of the framework for management of the Great Lakes that materialised further to the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement.

According to article 207, §10 & 11 of the Agreement as well as Section 4.14, §1 & 2 of the 2008 Compact, some current water withdrawals such as the one from the Chicago Canal are still governed by the terms of the United States Supreme Court Decree in Wisconsin et al. v. Illinois et al.

Under these paragraphs, when an application is made to the Supreme Court, States shall seek formal input and use best efforts to facilitate participation of the Provinces to the proceedings, or at least restrain from unreasonably impeding their participation.

An interesting question would be to study the potential use of the recourse provided under Section 7.3 of the Compact by one of the Provinces.