Water resources in international environmental law: dispersion of international norms and compliance

The use and management of shared water resources has been an area for cooperation in IEL. Traditionally, the utilisation of surface water and sweet water resources has been regulated through bilateral and regional treaties. Specifically, river commissions are predecessors to a series of international norms regulating water resources and are often seen as laying the groundwork for the establishment of international organisations.

Principles such as equitable and reasonable utilisation; the obligation not to cause significant harm; and principles of cooperation, information exchange, notification, consultation and peaceful settlement of disputes are all comprised in modern international memoranda, agreements and treaties. The function of the principles in IWL is to enhance effective transboundary water resources

management involving riparian States of shared watercourses, promoting sustainable development around the world. The principle of‘community of interest’ was spelled out by the Permanent Court of International Justice in the following terms:

[t]he community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others.[1]

Notwithstanding, the various types of water resources regimes have received a scattered treatment in international law. There is not a single regime in IWL but different regimes applicable to different types of resources (groundwater, surface water, aquifers). Overall, there has been a shift from pollution control and water management to a focus on conservation of water resources. This considerable dispersion is, in turn, reflected in the compliance with IWL.

Access to water resources and conflicts resulting from the lack of access to water or water pollution have traditionally been well-researched areas in IEL. Long-lasting disputes and recent disputes relating to access to water resources have emphasised their relevance. Indeed, in the 2000s various legal controversies surrounding access to and conservation of water resources emerged in international litigation, with some cases being brought before the International Court of Justice.

The legal status of water resources under international law varies according to the type of resources (surface or groundwater), the hydrological configuration and the regime adopted to regulate them, including groundwater and aquifers under the UN Draft Articles on the Law of Transboundary Aquifers and the UN International Watercourses Convention. From a natural resources perspective, various theories have emerged to underpin States’ regulation, such as the theory of absolute territorial sovereignty and the theory of limited territorial sovereignty, balanced with the principle of equitable use and the no-harm principle. Most freshwater sources are actually underground; geologically and hy-drographically, groundwater interacts with surface water (international rivers). Therefore, for example, the pollution of surface water may have devastating consequences for groundwater. Polluting activities in groundwater or excessive withdrawal may also affect surface waters shared between two (or more) States.

IWL has evolved from including a predominant ‘shared natural resources’ slant to articulating other approaches based on sustainable management inspired by the sustainable development principle and human rights considerations.[2] Cases dating back to the period of the Permanent Court of International Justice, such as the previously mentioned dispute relating to the International Commission on the River Oder. In this case, the PCIJ stressed the relevance of the principle of equality of rights of States with a legitimate interest in the navigable use of a watercourse.

Some States have led the way to more stringent legislation to protect water resources, like the European Union Member States, constructing the legal protection around directives, such as the Water Framework Directive (WFD), which provides for the management of water bodies based on river basins or catchments, involving the public in the management. Although establishing common goals across the EU, the implementation of the WFD in each EU Member State has yielded different outcomes.

Because of the reasons discussed above, compliance with IWL is difficult to secure in practice. In absence of a comprehensive and authoritative legal framework, various sets of rules apply in IWL, making the implementation of international law norms complicated. Several guidelines have been adopted to provide assistance to those involved in compliance and in international dispute settlement, and, more broadly, in international conflict resolution.

Two UN Resolutions marked the starting point for the codification of the law of water resources in terms of ocean and freshwater resources: the Resolution 2570 (C) (XXV) (on law of the sea, the seabed and the ocean floor) and the other Resolution 2669 (XXV) (on international watercourses). The trajectories of these resolutions differed significantly from each other in terms of the process

of codification and progressive development of IEL. As a result of the first one, the UNCLOS was adopted in 1982, whereas the Convention on the Law of the Non-Navigational Uses of International Watercourses was only concluded in 1997.[3]

Although some environmental provisions relating to the conservation of water resources are embodied in the law of the sea, the emphasis there is on pollution of the marine environment rather than on environmental compliance as such. The Convention on the Law of the Sea establishes a regimen that focusses on oceans but presents some significant commonalities with the law of international watercourses in terms of pollution control and conservation of resources. Both regimes are largely based on the rules and principles of customary international law created by consistent state practice.

The dispersion of IWL is a pervasive feature which also influences compliance, with the exception of areas in which codification has operated, such as the non-navigational uses of international watercourses. Codification in terms of transboundary aquifers has led to the adoption of draft articles that, despite not being formally sanctioned as binding international law, reflect customary international law in this area, unveiling the intrinsic interconnections with other branches of international law, such as the law of cultural heritage. From a water management standpoint, initiatives like the Internationally Shared Aquifer Resources Management (ISARM), a joint initiative of UNESCO-IHP, UN/FAO and the International Association of Hydrogeologists (IAH), have contributed to a more comprehensive compliance framework.

Principles applicable to IWL seek to regulate different aspects of water resources under the law of international watercourses, including the no-harm principle and the equitable and reasonable utilization of resources. This entails striking the balance between the different principles at stake. General IEL principles complete the regulatory IWL framework, with the precautionary principle at the centre of the system. By applying a precautionary approach, the burden of proof is reversed in favour of conservation. Under this principle, any proposed activity with potential impacts on water resources should be scrutinised, and the applicant has to prove that it would not have detrimental environmental impacts. Other IEL principles, such as sustainable development, and common heritage rules, also apply to this sector. These general principles and rules of IWL codified in the various legal instruments are equally applicable to surface waters

and groundwater resources. It is worth mentioning that there is no uniform or homogeneous application of the rules as, in some cases, principles such as the common interest principle[4] are not relevant for the regulation of some water resources. Substantive and procedural principles and multilateral conventions set out the framework in which agreements display their effects, adjusting and adopting the content of their provisions in older or subsequent treaties.

Interpretation tools may assist in carrying out compliance tasks through specific treaty bodies instituted under each treaty. In Gabcikovo-Nagymaros, the International Court of Justice (ICJ) resorted to the principles of equitable utilisation of natural resources, alluding to ‘evolving provisions of environmental law.’ In the ruling the ICJ made it clear that IWL encompasses a series of contemporary principles and concepts, such as the precautionary principle, intergen-erational equity and prior and continuous environmental impact assessment.

Main compliance issues and the nature of the problems observed in the practice of IWL are related to access to water resources, sustainable use of the resources as well as prevention and control of transboundary water pollution. Water pollution is a growing problem caused by discharges into the aquatic environment and into the rivers and watercourses of one State that straddle national boundaries and can affect another through transport, diffusion or dispersion originating from industrial sources such as pulp mills, iron and steel smelters, and petrochemical industries. Other sources of pollution include chemicals, waste of various origin and organic matter, which are frequently discharged into rivers, lakes and streams that lie beneath common borders. One of the main challenges is indirect pollution, such as the pollution originated by the discharge of hazardous substances into aquifers that straddle two States. Emissions can be transported by surface waters or by the wind, being deposited on a body of water or on the soil filtering into groundwater sources. Clearly, chemical pollution of surface waters is a major environmental problem which can alter the ecological status of water bodies. Under EU law, river basin-specific pollutants are considered part of the ecological status.

Strategies to address these problems vary. Under European Union legislation measures against chemical pollution of surface waters have two components. The first consists of the selection and regulation of substances and pollutants that threaten the sustainability of water resources as an EU-wide concern (the priority substances). Member States select the substances of national or local concern (river basin specific pollutants) for control at the relevant level. The second element is the setting of environmental quality standards that are then implemented through different regulatory tools.[5] Disparities across EU Member States concerning implementation of the directive create differentiation in terms of the level of protection.

In IEL, environmental objectives and the principles underpinning the protection of water resources. The solutions articulated therein are of a more a remedial nature in order to control water pollution. Some of the problems refer to the quality and quantity of water, and are dealt with by upper and lower riparian owners along international rivers. Remedial measures, however, are not sufficient to tackle the main problems observed in practice in this area of IEL; the ex post grievance remedial mechanisms should be part of a more comprehensive approach including ex ante measures. This is the specific approach taken in various regional and bilateral international agreements.

  • [1] PCIJ, River Oder Case (1929), File E. b. XX. Docket XVII. 2. Judgment No. 16, 10 September 1929, available at http://www.worldcourts.com/pcij/eng/decisions/1929.09.10_river_oder. htm accessed 1 April 2020. 2 ICJ, Pulp mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, available at https://www.icj-cij.org/en/case/135/judgments accessed 1 April 2020. 3 Laurence Boisson de Chazournes, Freshwater and International Law: The Interplay between Universal, Regional and Basin Perspectives (UNESCO World Water Assessment Programme 2009).
  • [2] Several international legal instruments refer to the application of the sustainable development principle in IWL. See, for instance, UN CSD 2001, World Water Vision 2000, UN CSD 1998, Agenda 21 1992, Dublin Statement 1992. 2 Stephen C. McCaffrey, ‘Case International Commission of the Oder’, in Max Planck Encyclopedia of International Law [MPIL] (Oxford University Press 2007), available at https://opil. ouplaw.eom/view/10.1093/law:epil/9780199231690/law-9780199231690-el298 accessed 1 April 2020. 3 European Union, ‘Introduction to the EU Water Framework Directive’, available at https:// ec.europa.eu/environment/water/water-framework/info/intro_en.htm, accessed 1 April 2020. Water Framework Directive, Cases concerning the infringement of the WFD have proliferated, see, for instance, Commission v Spain (Détérioration de l’espace naturel de Donana) Case C-559/19. 4 Laurence Carvalho et al., ‘Protecting and Restoring Europe’s Waters: An Analysis of the Future Development Needs of the Water Framework Directive’ (2019) 658 Science of the Total Environ-mentypp. 1228-1238. 5 Jerome Delli Priscoli and Aaron T. Wolf, Managing and Transforming Water Conflicts (Cambridge University Press 2010). 6 Muhammad Mizanur Rahaman, ‘Principles of International Water Law: Creating Effective Transboundary Water Resources Management’ (2009) 1(3) International Journal of Sustainable Society, pp. 207-233.
  • [3] David Freestone and Salman M.A. Salman, ‘Ocean and Freshwater Resources’, in Daniel Bodan-sky, Jutta Brunnée, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008). 2 Stephen McCaffrey, ‘International Water Law for the 21st Century: The Contribution of the U.N. Convention’ (2001) 118 Journal of Contemporary Water Research and Education, available at https://core.ac.uk/download/pdf/60534697.pdf accessed 1 April 2020. 3 Stefano Burchi, ‘Legal Frameworks for the Governance of International Transboundary Aquifers: Pre- and Post-ISARM Experience’ (2018) 20 Journal of Hydrology: Regional Studies, pp. 15-20.
  • [4] Wolfgang Benedek, Koen De Feyter, Matthias C. Kettemann, and Christina Voigt, The Common Interest in International Law (Intersentia 2014). 2 Jutta Brunnee and Stephen J. Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’ (1997) 91 American Journal of International LaWy pp. 26-59. 3 E. Hey, ‘International Water Law Placed in a Contemporary Environmental Context: The Gabcikovo-Nagymaros Case’ (2000) 25(3) Physicsand Chemistry of the Earth, Part B: Hydrology, Oceans and Atmosphere, pp. 303-308. 4 Ibid. 5 United Nations Water, Transboundary Waters (2020), available at https://www.unwater.org/ water-facts/transboundary-waters/accessed 1 April 2020. 6 UNEP, Preliminary Assessment of the Water Quality Situation in Rivers in Latin America, Africa and Asia, A Snapshot of the World’s Water Quality (2016), available at https://uneplive.unep. org/media/docs/assessments/unep_wwqa_report_web.pdf accessed 1 April 2020. 7 EuropcAnCnion-EnxrironmcntyStrategiesagainstChemicalPollutionofSurfaceWaters(2019)y3.vTi-able at https://ec.europa.eu/environment/water/water-dangersub/candidate_list_l.htm#:~:-text=%2Fl 1%2FEC.-, Chemical%20pollution%20of%20surface%20waters%20and%20the%20
  • [5] Nikolaos Voulvoulis, Karl Dominic Arpon, and Theodoros Giakoumis, ‘The EU Water Framework Directive: From Great Expectations to Problems with Implementation’ (2017) 575 Science of the Total Environment, pp. 358, 358-366. 2 Johanna Sôderasp and Maria Pettersson, ‘Before and After the Weser Case: Legal Application of the Water Framework Directive Environmental Objectives in Sweden’ (2019) 31(2) Journal of Environmental Law, pp. 265-290. 3 V. Smakhtin, C. Revenga, and P. Doll, ‘Taking into Account Environmental Water Requirements in Global-scale Water Resources Assessments’ (Comprehensive Assessment Secretariat 2004), available at https://www.researchgate.net/publication/241486821_Taking_into_account_
 
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