NAVIGATING
TRANSBOUNDARY WATER LAWS: LEGAL STRATEGIES FOR INTERNATIONAL HYDRO PROJECTS
Introduction
Transboundary water resources, including rivers,
lakes, and aquifers that cross or are shared by multiple countries, are
essential for international hydro projects, supporting agriculture, energy
generation, and domestic water supplies. Managing these shared resources
effectively requires robust legal frameworks to prevent conflicts, promote
cooperation, and ensure sustainability. International water law, through
treaties, agreements, and customary practices, plays a vital role in fostering
collaboration among nations, protecting ecosystems, and maximizing shared
benefits, all of which are crucial for the success of international hydro
projects.
At the heart of international cooperation is the
principle embedded in the UN Charter, which has shaped various global
frameworks for managing transboundary waters. Key among these is the 1997 UN
International Watercourses Convention (UNWC), alongside recent UN resolutions
on the Right to Water and Sanitation and transboundary aquifers. Despite these
advancements, challenges persist, with unclear water rights and resource
allocation leading to conflicts. This article explores legal strategies to
navigate transboundary water laws, balancing the economic, social, and
environmental impacts of international hydro projects while promoting peaceful
cooperation.
Overview of Transboundary Water
Resources
Transboundary water resources, including aquifers,
lakes, and river basins shared by two or more countries, are pivotal in
addressing global water challenges. With growing water scarcity and increasing
demand driven by climate change and population growth, poor management of these
shared waters can lead to heightened tensions, social instability, and even
conflict. Effective cooperation is crucial to ensuring sustainable management,
as these resources are essential for agricultural irrigation, energy
generation, and domestic water supply. Major transboundary water bodies, such
as the Nile, Mekong, Danube, Indus, and Zambezi rivers, exemplify the need for
international collaboration in managing water resources. Hydroelectric projects
within these basins can significantly contribute to energy security, economic
development, and environmental sustainability.
However, the success of such projects hinges on
strong legal frameworks and cooperative agreements that facilitate resource
sharing while balancing the diverse needs of the nations involved. Agreements
like the Danube River Protection Convention and the Zambezi Watercourse
Commission (ZAMCOM) illustrate the potential for transboundary cooperation, yet
challenges persist. For instance, Zambia's reluctance to ratify the ZAMCOM
Agreement has limited the full potential of regional collaboration in the
Zambezi basin, underscoring the complexities of achieving consensus on shared
water management. Despite these hurdles, effective legal frameworks remain key
to unlocking the economic and environmental benefits of transboundary
hydroelectric projects while promoting peace and cooperation.
Legal Framework Governing
Transboundary Waters
In the realm of transboundary water management,
each state is entitled to an equitable and reasonable share of shared water
resources. The principle of "equitable and reasonable use" is
fundamental in guiding the development and allocation of water within
transboundary river basins. However, striking a balance between the needs of
riparian countries can be a complex and challenging task. To assist in this
process, several rules and principles have been established. Notably, the 1997
United Nations Watercourses Convention sets binding rules for the sustainable
and equitable use of transboundary watercourses, promoting cooperation,
consultation, and conflict resolution. Earlier, the non-binding Helsinki Rules
(1966) were the first to codify key principles such as equitable and reasonable
utilization of shared waters, influencing subsequent international water laws.
The Berlin Rules (2004) further refined these principles by emphasizing
integrated management, environmental protection, and the recognition of human
rights in transboundary water use.
In addition to global frameworks, regional
agreements play a crucial role in managing transboundary waters by addressing
region-specific challenges and fostering cooperation among neighboring
countries. The EU Water Framework Directive, for example, governs shared basins
across Europe, while the SADC Revised Protocol promotes equitable water use in
Southern Africa. Similarly, the Niger Basin Commission facilitates cooperation
on water and land management in West Africa. These regional frameworks
complement global agreements by tailoring solutions to local contexts, ensuring
sustainable resource management, and fostering peace and cooperation among
states sharing vital water resources. Customary international law also
contributes by shaping unwritten norms that influence treaty-making and guide
state practices in the governance of transboundary waters.
Case Study
The Indus Waters Treaty (1960), signed between
India and Pakistan with the World Bank as a signatory, is a landmark agreement
that took nine years of negotiation to finalize. The treaty allocates the
waters of the Indus River system, with Pakistan receiving control over the
Western Rivers (Indus, Jhelum, Chenab) and India over the Eastern Rivers (Ravi,
Beas, Sutlej), while also allowing each country limited use of the other's
rivers for certain purposes. The Permanent Indus Commission, established under
the treaty, facilitates ongoing cooperation and dialogue between the two
nations. When disputes arise, they can be resolved through a Neutral Expert or
an ad hoc Court of Arbitration, depending on the nature of the disagreement.
Despite its resilience in the face of political
tensions, the treaty has recently faced challenges, particularly over India's
Kishenganga and Ratle hydroelectric projects, which Pakistan argues violate the
treaty's provisions. The two countries have diverged on the preferred method of
dispute resolution, with India advocating for a Neutral Expert and Pakistan
calling for a Court of Arbitration. In 2016, the World Bank, acting as a
procedural facilitator, paused the resolution process to encourage a mutually
acceptable solution. However, in 2022, it resumed the process, appointing both
a Neutral Expert and members of the Court of Arbitration. The Neutral Expert
renders binding decisions on procedural matters, while the Court of Arbitration
makes rulings by majority vote, with its Chairman casting the deciding vote in
case of a tie. The duration of these processes varies, with past cases taking
between one to three years for resolution.
Key Legal Challenges for
International Hydro Projects
- Sovereignty and Water Rights: In international hydro
projects, sovereignty and water rights present complex legal challenges.
In maritime law, sovereignty refers to full authority over a territory,
while sovereign rights are more limited functional rights over resources
in areas such as Exclusive Economic Zones (EEZs) and continental shelves.
Sovereign rights do not equate to full sovereignty, which often leads to
disputes over shared territories. For example, in the South China Sea
(SCS), China's refusal to differentiate between sovereignty and sovereign
rights has escalated tensions with neighboring countries. China views
these nations’ claims as threats to its sovereignty and justifies its
actions, such as building artificial islands, from its perspective.
However, these actions violate international law, specifically the United
Nations Convention on the Law of the Sea (UNCLOS), which governs maritime
resources globally. In hydro projects, the challenge of overlapping claims
to shared water resources often mirrors this scenario, requiring
compromises and legal negotiations to resolve water rights and boundaries.
- Equitable and Reasonable Utilization: The principles of equitable
and reasonable utilization and the obligation not to cause significant
harm underpin international water law and guide water allocation between
riparian countries. However, there are no universal criteria for these
principles, as every transboundary river basin has unique circumstances.
For example, differences in seasonal water discharge patterns and primary
water needs—such as agriculture or hydropower—make allocation especially
complex. A broader approach to understanding the benefits of water use is
often necessary for crafting creative solutions. Some agreements, such as
the 1995 accord between Russia and Mongolia, mandate minimum environmental
flows to protect ecosystems, while others focus on maintaining a fair
share of water resources for downstream countries through minimum cross-border
flows. The need for flexible and tailored agreements highlights the
challenges in applying equitable water management in diverse river basins.
- No Significant Harm Rule: The "no significant
harm" principle, as established in the Watercourses Convention (WCC),
is a cornerstone of international water law, ensuring that no state has
automatic priority over shared water resources. Article 5 of the WCC,
considered customary international law, emphasizes that water use must be
equitable and reasonable, except for vital human needs like drinking water
and food production, which hold inherent priority. Article 6 further
elaborates on the factors determining equitable water use, including the
needs of riparian states and populations dependent on the watercourse. The
principle of "no significant harm" aligns with the right to
water and focuses on preventing harm through mechanisms such as
consultations and Environmental Impact Assessments (EIA), ensuring that
international hydro projects consider the needs of all stakeholders and
ecosystems.
- Environmental Considerations: Environmental impacts are a
significant concern for international hydro projects, particularly when
multiple projects exist within the same river basin. While traditional
Environmental Impact Assessments (EIA) evaluate individual projects, a
broader approach is required for transboundary projects. Cumulative
Environmental Impact Assessments (CEIA) examine the combined effects of
existing and planned projects at a regional river basin level, allowing
for a comprehensive understanding of their collective environmental
impact. Currently, CEIA is primarily applied to large-scale hydro
projects, while smaller projects, such as run-of-the-river facilities, are
generally excluded. These smaller projects tend to have fewer
environmental impacts, as they use the river’s natural flow without large
dams, minimizing changes to the ecosystem, such as oxygen depletion,
increased temperatures, or disruption to fish migration. This approach
highlights the need to differentiate between project scales when
addressing environmental regulations in transboundary hydro developments.
Emerging Legal Trends in
Transboundary Water Governance
- Climate Change and Water Scarcity: Climate change poses
significant challenges to transboundary water governance, as it alters the
availability and quality of shared water resources. Rising temperatures,
shifting precipitation patterns, and accelerated glacial melting are
affecting water volumes in transboundary basins, which heightens tensions
between riparian states. These changes require enhanced cooperation and
the strengthening of governance frameworks to ensure sustainable and
equitable water use. Countries sharing rivers, lakes, and aquifers must
adapt through agreements that promote data-sharing, joint management, and
mutual benefits. Without collective action, conflicts may arise, as water
scarcity intensifies. Robust transboundary agreements, however, can help
mitigate climate change’s impacts, reducing the risk of conflict while
ensuring sustainable cross-border water management.
- Private Sector Involvement: International legal
frameworks increasingly integrate the private sector into public water
management through models like public-private partnerships (PPPs). These
partnerships balance public oversight with private sector investment and
efficiency, which is crucial for sustainable development in water
infrastructure and management. Legal approaches differ across
jurisdictions but generally follow two trends: recognizing water as both
an economic good and a human right and establishing regulatory systems to
ensure equitable, sustainable water use. For example, many countries,
including EU members, adopt integrated water management principles,
requiring both public and private sectors to collaborate within regulatory
frameworks that prioritize human and environmental rights. Moreover,
international investment law has begun addressing the responsibility of
private actors in ensuring access to water, particularly when it comes to
human rights obligations in privatized water services. Cases like Urbaser
v. Argentina reflect the ongoing debate about whether private
companies should be held directly accountable for human rights violations
related to essential services like water. These developments highlight the
need for regulatory frameworks that enforce human rights while
facilitating private sector participation in water governance.
- Sustainable Development Goals (SDGs): Transboundary water
governance plays a vital role in achieving Sustainable Development Goal
(SDG) 6 (Clean Water and Sanitation), particularly through fostering
cooperation among countries that share water resources. International
legal frameworks governing these shared resources, such as rivers and
aquifers, are essential to promoting sustainable management, equitable
use, and preventing conflicts. However, challenges like political
tensions, climate change, and limited institutional capacity slow
progress, with only 59% of transboundary basins currently covered by
operational cooperation frameworks. Strengthening these legal frameworks
is critical to ensuring global water sustainability and achieving SDG 6.
Progress on Transboundary Water
Cooperation – 2024 Update
Target 6.5
of the UN SDGs focuses on the implementation of integrated water resources
management (IWRM), including transboundary cooperation, by 2030. This goal is
crucial, as many of the world’s water resources are shared by multiple
countries, requiring coordinated management to address common challenges such
as pollution, climate change, and water scarcity. Indicator 6.5.2 measures the
extent of operational cooperation within transboundary basins by tracking
formalized agreements, information-sharing, and joint management plans among riparian
countries.
Despite the importance of transboundary water
cooperation, progress has been slow. Globally, around 313 rivers, 468 aquifers,
and numerous lakes are transboundary, affecting over three billion people.
However, only 59% of these areas are covered by operational cooperation
arrangements, a figure that has seen little improvement since 2017. This gap
presents a significant challenge to achieving equitable and sustainable water
management across borders, making it imperative to strengthen international
legal frameworks and increase cooperation to meet the 2030 SDG target.
Conclusion
The management of transboundary hydro projects
poses complex legal challenges, deeply intertwined with issues of sovereignty,
equitable water allocation, and environmental sustainability. While
international treaties such as the UN Watercourses Convention and the Helsinki
Rules offer essential frameworks for cooperation, they often fall short in
addressing the increasingly urgent needs of riparian states. As climate change,
population growth, and water mismanagement continue to intensify these
pressures, the principle of “equitable and reasonable” use of transboundary
waters becomes not just a legal standard but a crucial strategy for ensuring
the survival of nations that depend on these shared resources. Effective legal
frameworks must go beyond promoting cooperation—they must empower states to
navigate disputes, mitigate environmental risks, and uphold the human right to
water.
As climate impacts worsen, legal approaches to
transboundary water governance will need to become more adaptive and
forward-thinking. Incorporating climate risk assessments and embracing advanced
methodologies such as cumulative environmental impact assessments (CEIA) will
be essential for future agreements. In parallel, the role of the private
sector, particularly through public-private partnerships (PPPs), is likely to
expand in the realm of water governance. While private sector involvement may
help improve infrastructure and resource management, it also raises important
legal questions regarding the balance between private investment rights and the
state’s duty to ensure access to water as a fundamental human right. Global
legal cases like Urbaser v. Argentina highlight the complexities of
integrating private actors into water governance while maintaining human rights
standards.
Looking ahead, the need for stronger international
cooperation and innovative legal frameworks is more pressing than ever.
Strengthening existing treaties, fostering new regional agreements, and
promoting inclusive, multi-stakeholder dialogues will be vital steps toward
addressing the challenges of water scarcity, climate change, and global
inequalities. Legal innovation, coupled with collaborative governance, will
ensure that transboundary water resources are managed in a way that is
sustainable and equitable for future generations. Only through such efforts can
we hope to achieve a balance between the growing demands on water resources and
the need to protect this essential lifeline for both people and the environment.
References
·
https://iwrmactionhub.org/learn/iwrm-tools/international-water-law
·
Attached
PDF “International Law – Facilitating Transboundary Water Cooperation” by
Patricia Wouters. Page No. 14 and 15
·
OECD
Studies on water, Water Resources and Allocation, sharing risks and
opportunities
·
The no signifcant harm principle and the human right
to water by Otto Spijkers
·
https://energypedia.info/wiki/Hydro_-_Environmental_Impact_Assessment_(EIA)
·
https://brill.com/view/journals/bol/1/1/article-p37_37.xml