By Johanna Ospina Garnica, UPEACE Centre The Hague.
Summary of the lecture presented by Sir Kenneth Keith, Judge of the International Court of Justice (ICJ), on January 28, 2015. This lecture was jointly organized by UPEACE Centre The Hague and the Peace Palace Library. (For more information on UPEACE Centre The Hague and the lecture series “Peace Building in Progress” see: www.upeace.nl).
In his lecture on “International water disputes – The roles of international courts and arbitral tribunals in resolving them”, Sir Kenneth Keith gave a general overview of the role and challenges of international arbitration and jurisdiction in water disputes. To do this, he referred to four main themes, each explained by a featured case study on international water disputes, namely: main issues in international water disputes, law applied to international water disputes, limits and possibilities of adjudication and arbitration and management of international water disputes.
Main issues in international water disputes
Sir Kenneth Keith started his lecture by explaining two of the main topics on the regulation of international water disputes. The first of these are the boundaries disputes, which include maritime, lakes and rivers boundaries, many of these disputes are related to navigation rights and acquisition. In this aspect stands the case of Malawi-Tanzania, whose border dispute regards the lake Nyasa; there is currently a process of mediation going on with some prospects of arbitration and jurisdiction. Other important cases include Nicaragua-Colombia and Nicaragua-Honduras whose disputes are about maritime delimitation.
The other main topic of international water disputes is the use of water; this category includes fishing, access to freshwater, agriculture, manufacturing, recreation and tourism. Two important cases in this regard are Egypt-United Kingdom (1929) for the uses of the Nile River and Argentina-Uruguay concerning the building of pulp mills on the Uruguay River.
How the law on international water disputes has been applied
Besides some instruments on international water law, there are more than 3,000 international agreements concerning freshwater, navigation and boundary demarcation that have contributed in terms of building up water law. Some of them have been multilateral agreements such as the International Commission for the Protection of the Danube River (ICPDR) or bilateral treaties such as between Uruguay and Argentina, concerning the Rio de la Plata.
Another important type of agreements are those concerned with extending law treaties on water issues, as is the case of Costa Rica-Nicaragua. These agreements present a range of subjects mainly related to the continuation of old treaties and the way in which they were written. Sir Keith emphasized that these treaties might present big challenges, related to their interpretation and application. Consequently, this situation raises the question: how must laws and treaties be interpreted as time goes by? To respond to this problem, Sir Keith explained that it is always necessary to consider the real purpose for which they were created, but also to understand that the needs and conditions of the contexts may have changed. Therefore, these agreements must be interpreted in light of new facts and situations.
On this latter aspect, Sir Keith asked us to consider: What about the regulation of the water for environmental purposes? For this, he explained that, despite the fact that the majority of agreements on water deal with navigation and boundary demarcation, in the last few decades, the focus of treaty-making has shifted to responsible use, protection and conservation of water resources. This has resulted in the growth of international policies and measures on Environmental Impact Assessment (EIA).
Limits and possibilities of adjudication and arbitration
According to Sir Keith, due to the nature of water disputes, there still remain some limitations concerning their adjudication and arbitration. One simple example: it is not possible for a court to predict and say how the water resources must be used in the future. Despite the diverse limitations present in each case, there are some ways in which tribunals can help the parties. To explain this, Sir Keith referred to two specific cases.
The first is Argentina-Uruguay regarding the construction of pulp mills on the River Uruguay. Despite the parties setting up a commission for the management of the river; the members were unable to reach a conclusion in some aspects. Therefore, by the end of the judgement, the court indicated that, although it is not possible to define everything in a treaty or a piece of jurisdiction, the court can help to set procedures.
On the other hand is the case of Chile-Peru. According to Sir Keith on this subject, the court couldn’t solve the problems related to the limitation of the boundary over the sea; partly because of the technical debate that it would produce. Hence, the court called attention to the positive and good relations historically shared between the parties. Therefore, and despite some differences, it was easier to reach an agreement between the parties and solve the case.
Management of international water disputes
Management of international water disputes covers a range of different aspects; among them are the delimitation of boundaries and access to and use of water resources. One of the most difficult items to address is the quota of fish allowable catch between countries that have been traditionally or recently fishing.
Conclusion: as a main conclusion Sir Keith emphasized that international law is important, as well as courts, tribunals and arbitration. However these have their own limits and challenges. Therefore it is necessary to continue working on them jointly as a process.
The Permanent Court of Arbitration and International Water Disputes
As part of the lecture, Ms. Judith Levine, a senior legal counsel of the Permanent Court of Arbitration (PCA), delivered a second speech on “The Role of the Permanent Court of Arbitration in International Water Disputes”. In her lecture, Ms. Levine gave a general introduction to the work of the PCA on international water disputes. For this she explained the following three key aspects:
-The PCA is an intergovernmental organisation that provides permanent support to arbitration and other dispute resolution proceedings. Also, it is composed of three main structures: 1. Administrative Council (116 Member States), 2. Members of the Court, 3. The International Bureau.
-Since 1995 the number of cases has increased. At present, the PCA has 93 pending cases. Among them, six are inter-state cases, which are the type of disputes that were envisaged in The Hague Convention of 1899 where arbitration was seen as an alternative mean for disputes and war. The rest of the cases are in one-hand mix disputes involving private parties and in the other states and non-governmental organizations. Among the highlighted cases on international water disputes are: Netherlands-France (2004), Guyana-Suriname (2007) and Indus Waters Kishenganga (Pakistan-India, 2013).
-There are several international water instruments with reference to arbitration, including: the Convention on the Law of the Non-Navigational Uses of International Watercourses of 1997 (entry in force 2014), the 2003 Protocol on Civil Liability and Compensation for Damage caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Conventions and the 2014 IBA Report on Climate Change & Justice, which recommends PCA environmental rules for UNFCCC disputes.
