The Future of Water Law: A Focus on Joint Watercourse Institutions
Matthew Micik
Associate Editor
Climate change presents many challenges for international water law. A central problem is creating treaties that are flexible and durable enough to effectively manage the increasing stress on shared sources of freshwater. One way that states can overcome the deficiencies of international law in this area is to establish cooperative institutions that can take a flexible approach to allocating water in the face of fluctuating availability and scarcity. As climate change accelerates, states must make these joint institutions central to any new bilateral water treaties. People all across the world rely on transboundary bodies of water to access freshwater.[1] Transboundary bodies of water are defined as “aquifers, and lake and river basins shared by two or more countries.”[2] While these bodies of water are essential to sustaining life, they are under increasing stress.[3] Climate change is leading to greater scarcity in arid climates; runoff is decreasing, and the risk of drought is increasing.[4] Compounding this stress are demographic changes that create a greater demand for freshwater.[5] The importance of freshwater makes it unsurprising that competing claims for this resource have been identified as potential sources of interstate conflict.[6] There is potential for conflict between states sharing a transboundary body of water when there is an insufficient amount of water to satisfy the claims of both states in a sustainable way.[7] Nearly all conflicts over water use arise from disputes over the allocation of water between states.[8] Deciding how much water each state is entitled to is a difficult task.[9] Unfortunately, the current state of international law provides only limited assistance addressing this issue in a particularized and helpful way. Customary international law holds that states are required to utilize water in a way that is “reasonable and equitable,” and that states must “avoid causing harm” to each other.[10] This is the “cornerstone principle” of allocating shared water, but it does little to provide states with anything more than general guidance.[11] Multilateral treaties are similarly unable to resolve the specific issue of how states should allocate water when there are competing claims. The only major multilateral treaty on this issue is the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses, which provides a “substantive framework and procedural rules to be considered by states.”[12] In large part, the Convention codifies existing international law on the topic.[13] It stresses the importance of “long term cooperation, gathering accurate data, promoting public participation,” and it advises future agreements to include regional committees to “anticipate and solve disputes over transboundary water resources.”[14] The Convention is necessarily broad; every state has unique needs that must be negotiated on a bilateral basis, and the Convention is only meant to provide a framework for those agreements.[15] Unfortunately, even bilateral treaties encounter problems allocating water between states. These treaties are desirable, because they ensure greater stability and predictability.[16] This desired predictability and the fear of ceding power and control to a joint institution (states often employ the language of surrendering “sovereignty”) means that these agreements often consist of “rigid allocations between states”[17] Such agreements lack the necessary flexibility to respond to variations and interruptions that can come with climate change, droughts, and subsequent competing claims.[18] To address the stress that climate change can inflict on sources of freshwater, states need a flexible regime of allocating water that can quickly monitor and adjust a state’s respective allocations based on changing conditions such as drought.[19] States can effectively do this by creating a joint institution tasked with responding to changes to the availability of water.[20] Given this, the 1997 Convention recommends that states consider establishing such joint institutions.[21] It is now commonplace for states to heavily rely on these joint institutions to avoid disputes.[22] While states are increasingly interested in the Permanent Court of Arbitration to settle some of these disputes, joint institutions avoid the need to escalate every unremarkable disagreement by involving high level government officials.[23] These cooperative institutions can enable civil servants to resolve low-level disputes with pragmatic negotiations while avoiding the charged posturing and politicization found at higher levels of government.[24] One famous example of a joint watercourse institution comes from the 1960 Indus Water Treaty between India and Pakistan.[25] This treaty created the Permanent Indus Commission (PIC) to help with the treaty’s implementation.[26] When a conflict arises, the PIC is the initial venue to address a possible conflict.[27] The PIC can examine any question of fact related to the treaty or any question of the treaty’s interpretation or application.[28] The PIC consists of two commissioners and engineers representing their respective state who can address the question at issue.[29] If the commission cannot reach an agreement, the parties can escalate the dispute to a neutral engineering expert with extensive power to make a binding decision.[30] The Indus Water Treaty is one of many examples of joint watercourse institutions, but nearly two-thirds of transboundary rivers do not have any sort of framework for cooperative management.[31] The challenges of global climate change require new ideas when it comes to effectively managing and avoiding conflict in the face of scarcity. Transboundary sources of freshwater are so pervasive and integral to sustaining life, that states must prioritize creating legal regimes that go beyond the vague principles of customary international law and the rigidity of traditional bilateral water treaties with fixed allocations. As states continue to face increasing stress on their access to freshwater, they must follow the advice of the 1997 Watercourses Convention and embrace cooperative institutions that can adapt to an uncertain future.
[1] Transboundary Waters, UN WATER, https://www.unwater.org/water-facts/transboundary-waters (last visited Oct. 5, 2020). [2] Id. [3] Matthew Draper, International Water Disputes and Cooperation, ROCKY MOUNTAIN LAW FOUNDATION, 64 RMMLF-INST 7 (2018). [4] See id. [5] Id. [6] Dan Tarlock, Four Challenges for International Water Law, 23 TULANE ENV’T L.J. 369, 372 (2010). [7] Id. at 370. [8] UNESCO, Transforming Potential Conflict into Cooperation Potential: The Role of International Water Law, 73, U.N. DOC. SC-2003/WS/67 (2003). [9] See id. [10] Id. [11] See Id. [12] Id. at 70. [13] Id. [14] Jeffrey S. Dornbos, All (Water) Politics is Local: A Proposal for Resolving Transboundary Water Disputes, 22 FORDHAM ENV’T L. REV. 1, 5 (2020). [15] Draper, supra note 3. [16] UNESCO, supra note 8, at 72. [17] Tarlock, supra note 6, at 384. [18] Id. [19] Id. [20] UNESCO, supra note 8, at 73. [21] Id. [22] Id. at 66. [23] Id.; See Id. at 32. [24] See id. [25] Id. at 61. [26] Id. [27] Id. [28] Id. [29] Id. [30] Id. [31] UN WATER, supra note 1. The views expressed in this post represent the views of the post’s author only.
