Common management institutions
Common management regimes must, therefore, be voluntary arrangements, established by treaty between basin states. General international law will not impose a positive obligation compelling basin states to create such institutions. According to Cecil Olmstead,
Context of river basin organizations 29 “international law limits only the state’s freedom of unilateral action but does not require joint utilization.”30 The commentary to Article 64 of the International Law Association’s (ILA) 2004 Berlin Rules on Water Resources, which requires, “[w]hen necessary,” the establishment of “a basin-wide or joint agency or commission with authority to undertake the integrated management of waters of an international drainage basin,” nevertheless concedes that “customary international law does not specifically require [that] such institutions be established nor does it provide specific details for such mechanisms.”
Among the studies on international basin management organizations,31 one detailed review and comparative analysis of a representative selection of 12 bodies identify a total of 18 different categories of water uses or “issue areas” with which such organizations might be concerned. Their organizational structures vary depending, inter alia, on the range of issue areas, the powers and mandate of the institution, and the degree of integration and cooperation envisaged by the riparian states. Nevertheless, all these institutions appear, formally or effectively, to employ decision-making mechanisms requiring unanimous vote or consensus.32
Though common management arrangements must be entered into by states voluntarily, the accumulated practice of states in participating in such arrangements might serve to bolster the normative status, in customary or general international law, of the various rules comprising the general duty to cooperate. This obligation is widely understood as consisting of a number of specific procedural obligations, such as the duty to notify, the duty to consult and/or negotiate in good faith, and the ongoing exchange of water-related information.33 State practice in relation to common management might inform the normative content of such rules by demonstrating that bona fide participation in common management institutions contributes to satisfaction of the obligations inherent therein.
The 1992 UNECE Water Convention34 requires parties to “enter into bilateral or multilateral agreements or other arrangements” which “shall provide for the establishment of joint bodies” having a wide range of environmental tasks. Furthermore, common management must become an ever greater imperative as recognition of the physical unity of the drainage basin gains ground in international law through the ongoing elaboration of the “ecosystem approach” to the management of international watercourses.35 Discussing “the need for eco-management” of international watercourses, Kaya concludes that “it seems necessary to establish a treaty regime with an active and continuing revisional element which can only be achieved by settingup a joint water institution with adequate powers and means in each basin.”36
The 1997 UN Watercourses Convention expressly encourages watercourse states to enter into common management arrangements. The principle of “equitable participation” set out under Article 5(2) suggests the nature and scope of the role potentially to be played by joint mechanisms. The 1LC commentary explains that Article 5(2) involves “not only the right to utilize an international watercourse, but also the duty to cooperate actively with other watercourse States in the protection and development of the watercourse”37 and it is persuasively argued that the provision “not only requires co-ordination but also more significant forms of co-operation.”38 These authors contend that a state’s failure to participate actively in the procedural requirements inherent in equitable participation “will make it difficult for that State to claim that its planned or actual use is...equitable under Article 5 of the Convention.” Therefore, any invitation to participate in a regional river basin organization ought to be considered carefully by riparian states. Regarding the general obligation of watercourse states under Article 8 to cooperate. Article 8(2) expressly proposes the use of joint mechanisms and commissions. This was not included in the 1994 ILC Draft Articles but inserted later, perhaps signaling growing acceptance of the common management approach and growing awareness of its merits.
Considering the kinds of information listed under Article 9(1), it is apparent that regular and effective exchange of such information, facilitated by common management institutions, would play a significant role in determining an equitable regime for the use or development of an international watercourse elaborated under Articles 5 and 6 of the convention.
Common management institutions have an obvious role regarding the measures expected of watercourse states under Article 21(3)(a) in relation to the “prevention, reduction and control of pollution” including, among other things, “[s]etting joint water quality objectives and criteria.” Furthermore, Article 24(1) provides that “[w]atercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism,” thereby suggesting the efficacy of using permanent common management institutions, especially for the purpose of developing the watercourse in an environmentally sustainable manner. Finally, at Article 33(1) the UN Watercourses Convention envisages a role for common management mechanisms in the settlement of disputes, providing that parties may “make use, as appropriate, of any joint watercourse institution that may have been established by them.”
Commentators agree that “the notion that all riparian states have a community of interests in an international watercourse reinforces the doctrine of limited territorial sovereignty [and thus, equitable utilization], rather than in any way contradicting that doctrine” and put forward advantages of such an approach.39 For example, it “expresses more accurately the normative consequences of the physical fact that a watercourse is, after all, a unity” and that “it implies collective, or joint action” and “evokes shared governance.” Some express concern that, in the absence of common management arrangements, the traditional substantive rules of international watercourses law may be of limited avail in handling problems of water scarcity and quality.40 Atilla Tanzi and Maurizio Arcari note that “the concept of optimal utilization of international watercourses to be pursued by riparian States through the integrated management and development thereof has gained widespread acceptance in legal literature and in the international governmental fora.”41 Acknowledging the increasing significance of environmental values, they also note that “realisation of sustainable use depends on the same co-operation and participation among riparian States in the joint and integrated management of the shared watercourse.” They conclude that procedural requirements inherent to the obligation of states to cooperate can only be facilitated by means of established institutional machinery, where “procedural co-operation among riparians is carried out on a permanent, rather than on an occasional, basis.”
The effectiveness of common management machinery for the purpose of environmental management of international watercourses has long been obvious. Konrad von Moltke noted in 1988 that “it is inherent in the nature of the issues. Among the oldest institutions for the management of an environmental resource are those dealing with the allocation and use of water.”42 He cites early examples, including the Commission of the River Rhine established at the 1815 Congress of Vienna (but only made operational by the 1868 Treaty of Mannheim), the Danube Commission established in 1878, and the International Boundary and Water Commission established by the United States and Mexico in 1889. He cites a 1997 report by the Organisation for Economic Co-operation and Development (OECD) in which “a marked strengthening of international cooperation [through commissions] has been noted for solving problems of transfrontier pollution in international water basins,” with such commissions possessing scientific and technical expertise allowing them to provide impartial specialist advice.