Water - American Bar Association

Transcription

INDEX
Features
2
Confronting Water Allocation
Problems in the Nile River Basin:
The Need for a New Compact
John Mukum Mbaku
11
The Indus Water Kishenganga
Arbitration: Minimum Flows, Data
Exchange, and the Treaty that Holds
It All Together
Kristian Corby
20
The Right to Water in the Case Law
of the European Court of Human
Rights
Carolina de Mendonça Gueiros and
David N. Cassuto
24
Where Two Rivers Meet: Realizing
Indigenous Water Rights Through
the Human Right to Culture
Carina Roselli
EDITORIAL BOARD
Issue Editor
Anna Mance
Editorial Team
Shannon Dilley, R. Juge Gregg, Guillermo
Malm Green, Renee Martin-Nagle, Jonathan
Nwagbaraocha, Andrew Schatz, Kim
Smaczniak
Layout & Design
Anna Mance
Cover Image
Jamon Van Den Hoek
The cover image shows irrigated agricultural
land along the Nile River in central Egypt,
with parched geology to the East. This map
was produced by Jamon Van Den Hoek, a
NASA Postdoctoral Fellow at NASA Goddard
Space Flight Center, using Landsat satellite
imagery.
EDITOR’S LETTER
Water is being increasingly recognized as a defining resource that
frames relationships among nations and individuals. Moreover it defines
our relationship to land and where and how we live, as the cover image
of the Nile River depicts. As the river flows, the red and green imagery
illustrates the vegetation, agriculture, and development crowding along
the banks, leaving great swathes of the desert untouched.
In this second installment of the Special Edition series, Water:
Regional Perspectives, the authors focus on regions around the globe
where water rights with respect to upstream and downstream riparian
neighbors, individuals, and indigenous groups are being deterimed. In so
doing, the debates and decisions have stirred new ways of thinking
about the opportunities and limitations inherent in our individual and
collective relationships to this critical resource.
Focusing on the Nile River Basin, John Mukum Mbaku traces the
Nile Waters Agreement from its colonial-era origins in the 1929 AngloEgyptian Treaty and 1959 Bilateral Agreement Between Egypt and
Sudan, both based on historically acquired rights, to the current push for
the Cooperative Framework Agreement, based on concepts of equity
and fairness. He argues that to manage the current environmental and
water allocation issues arising in the Nile River Basin none of these
frameworks is adequate and only one that fully meets the needs of all
riparian states will be acceptable.
Next, Kristian Corby discusses the effect of the recent Indus Waters
Kishenganga Arbitration on the Indus Waters Treaty, in which the Court
determined that providing minimum flow may satisfy an upstream
state’s duty to mitigate substantial environmental harm to a downstream
state. He considers the implications of this concept on the
Kishenganga/Neelum River as well as how it might be applied to other
international watercourses.
Through the lens of two decisions by the European Court of Human
Rights, co-authors Carolina de Mendonça Gueiros and David N. Cassuto
describe the possibilities and limits to achieving water quality protection
within the European human rights system. Several of the rights
protected under Article 8 of the European Convention on Human Rights
include a right to water, though a true “right to water” does not exist.
Through these case studies, they show the broad flexibility States have
in choosing how to address violations of Article 8 rights.
Finally, Carina Roselli offers a compelling view of the first
successful case linking water to cultural rights under Article 27 of the
International Covenant on Civil and Political Rights. She suggests that
the Poma Poma case in Peru is the beginning of a new era of greater
recognition for the interdependence of cultural rights and natural
resources and details how the same concept could apply to indigenous
groups in Chile and Iraq.
As joint collaborators, the International Environmental Law
Committee (IELC) of the Section of International Law and the
International Environmental and Resource Law Committee (IERLC) of
the Section of Environment, Energy, and Resources, hope that these
articles will inspire further thought and discussion on the topics herein
and the scope of the right to water and issues of water quality, access,
and obligation.
I am especially grateful to all who have participated this effort,
particularly the authors for their excellent contributions and to my
fellow committee members for their interest and support in fostering a
forum for high-level dialogue on law, policy, and science.
Anna Mance
Editor
Vice Chair of Policy
IELC, Section of International Law
2
Confronting Water Allocation in the Nile River Basin:
The Need for a New Compact
JOHN MUKUM MBAKU, ESQ.
I. INTRODUCTION
For millennia, Egypt has sustained itself and its civilization by
extracting and utilizing the waters of the Nile River.1 Over the
years, Egyptians and their leaders have come to claim a
“natural historical right” to the Nile River’s waters and
resources. These claims now represent the most important
element of the conflict that modern Egypt has with upstream
riparian States over the allocation of the waters of the Nile
River. Since the 1920s, many treaties have been concluded
between the States of the Nile River or their representatives to
provide a legal framework for the allocation of the waters of
the Nile River.2 These treaties granted Egypt most of the waters
of the Nile River and placed the other riparian States on a
competitive disadvantage in regard to access to water allocation
and utilization.3
The conflict between the downstream (Egypt and the
Republic of Sudan) and upstream riparian States4 has centered
around the fact that colonial-era agreements5 allotted more than
80 percent of the waters of the Nile River to Egypt and Sudan,
leaving the upstream riparians with virtually no water
allocations.6
Although the upstream riparian States have denounced
them7 and consider them anachronistic and dysfunctional, the
Nile Waters Agreements8 are the most important legal
instrument currently in place to regulate all activities related to
the allocation of the waters of the Nile River. Below, we briefly
examine them.
A. THE 1929 ANGLO-EGYPTIAN TREATY
The 1929 Anglo-Egyptian Treaty was signed between
Egypt and Great Britain, with the latter representing the
interests of Anglo-Egyptian Sudan. Estimating the Nile River’s
average annual flow of water to be 84 billion cubic meters, the
1929 Agreement granted Egypt 48 billion cubic meters per year
and Sudan 4 billion cubic meters per year.9 In addition, the
treaty (1) granted Egypt the right to monitor and regulate all
activities (e.g., the building of dams) on the Nile River and its
tributaries by upstream riparian States to make certain that they
did not negatively affect the flow of water to Egypt;10 (2)
granted Egypt veto power over construction projects on the
Nile River and its tributaries considered detrimental to
Egyptian interests;11 and (3) allocated most of the waters of the
Nile River to Egypt.12
The Anglo-Egyptian Treaty defined what came to be
known as Egypt’s “historically acquired rights” to the waters of
the Nile River.13 It purported to bound the Nile’s upstream
riparians even though they were neither signatories to the treaty
nor participants in the negotiations leading to the compacting
of the agreement.14 For many years, the British had relied on
agricultural exports from the Nile River Basin territories,
including Egypt, which gained its independence in 1922. In the
process, Britain became involved in the allocation of the waters
of the Nile River between Egypt, Anglo-Egyptian Sudan, and
…
British East Africa for irrigation purposes.15
A major purpose of the 1929 Agreement was the
development of British Sudan and other upstream territories.16
Nevertheless, the agreement protected specifically the
agricultural interests of Egypt.17 The British Government also
assured Cairo that the country’s “natural and historic rights”
would be safeguarded.18
Most of the water that flows into the Nile River comes
primarily from the lakes of central Africa, the Blue Nile and the
Atbara Rivers in Ethiopia.19 Although Ethiopia provides as
much as 86 percent of the Nile River’s waters, the 1929
Agreement made her water interests subordinate to those of
Egypt’s. In addition, the treaty specifically required “Egyptian
oversight and approval of any irrigation, power, or other water
diversion project along the Nile.”20
B. THE 1959 BILATERAL AGREEMENT BETWEEN EGYPT
AND SUDAN
The 1959 Agreement was designed to support, augment,
and enhance the provisions of the 1929 Anglo-Egyptian
Treaty.21 As its title indicates, the 1959 Agreement was
supposed to allow Egypt and Sudan to make a full utilization of
the waters of the Nile River, a process that did not take into
account the interests and development needs of the upstream
riparian States.22 Recall that the 1929 Agreement had allotted
Egypt 48 billion cubic meters per year and Sudan 4 billion
cubic meters per year of an estimated average annual flow of
84 billion cubic meters of water.23 The 1959 Agreement
increased Egypt’s share to 55.5 billion cubic meters per year
and Sudan’s to 18.5 billion cubic meters per year, leaving only
10 billion cubic meters per year unallocated, primarily to
account for seepage and evaporation.24 The 1959 Agreement
reinforced the concept of so-called “natural and historic rights
of Egypt” that had been made explicit in the 1929 Agreement.25
Egypt and Sudan, the contracting parties to the 1959
Agreement, intended to secure all the waters of the Nile River
for themselves and leave none to the upstream riparian States.26
C. THE CONFLICT IN THE NILE RIVER BASIN
But, what is the nature of the conflict between the
downstream and upstream riparian States?27 The upstream
States have argued, through many forums,28 that the allocations
made possible by the Nile Waters Agreements29 are unfair,
inequitable, and greatly hinder their ability to utilize the waters
of the Nile River and its tributaries for national development.30
The upstream riparian States argue further that both Egypt
and Sudan are using the Nile Waters Agreements and the socalled “historic acquired rights” principle to prevent the
evolution, within the Nile River Basin, of a new legal
framework that can enhance and make possible, the fair and
equitable allocation and utilization of the river’s waters.31 In
fact, Egypt has actively campaigned against financial support
to upstream riparian States for the construction of infrastructure
projects on the Nile River and/or its tributaries. As stated by
Salif Diop, an expert on international watercourse management
“[n]o donor or bank is going to agree to give money for a dam
or an irrigation scheme if they know that it’s illegal in
international law
and does not have the backing of all Nile
nations, especially Egypt.”32
Over the years, Ethiopia has refused to recognize the
legality of both the 1929 and 1959 agreements. First, the
Ethiopians have argued that Great Britain was not representing
them when it negotiated the 1929 Anglo-Egyptian Treaty.
Second, Ethiopia did not participate in the negotiations that
produced either the 1929 or 1959 agreement or become a
signatory to either of them. Third, both agreements produced
allocation regimes that are considered by virtually all the
upstream riparian States as grossly unfair and inequitable since
“one party [i.e., Egypt] reserved for itself all the rights and
privileges, leaving the other party [i.e., the upstream riparian
States] without any quid pro quo.”33
The officials in Addis Ababa went on to argue that “the
whole exercise of the agreement [i.e., the 1929 Agreement] was
geared mainly to protect and to promote Egypt’s interests
without any reciprocity, and that it [i.e., Ethiopia] had not
renounced its own quantitatively unspecified but existing
natural right to the Nile waters in its territory.”34 Since the
1950s, Ethiopia has asserted, as well as, reserved, its rights to
access the waters of the Blue Nile River for its agricultural
development. In doing so, the Ethiopians have not given
cognizance to the restrictions imposed on upstream riparian
States by international law, specifically, the Nile Waters
Agreements.35
II. THE NILE RIVER BASIN’S CURRENT LEGAL REGIME:
ANACHRONISTIC AND DYSFUNCTIONAL
Presently, the Nile River Basin legal framework consists of
the Nile Waters Agreements,36 which, unfortunately, are
considered by the upstream riparian States as null and invalid.37
For a variety of reasons, the validity of the Basin’s present
legal framework is uncertain and in doubt.38 First, the 1929
Anglo-Egyptian Treaty was concluded when all the upstream
riparian States (and one downstream riparian State—Sudan),
except Ethiopia, were colonies.39 Although Egypt insists that
the 1929 Agreement is valid, the upstream riparian States have
invoked either the “clean slate or Nyerere concepts of state
succession”40 to denounce it and proclaim it invalid and not
binding on them.
Second, the 1929 Treaty was an agreement between Egypt
and Britain, with the latter representing Anglo-Egyptian Sudan
and Britain’s other colonies in the Nile River Basin.41 In 1929,
Ethiopia was an independent and sovereign country and hence,
could have negotiated on its own behalf but it was not made
part of the negotiations leading to the signing of the 1929
Treaty.42 As a consequence, Ethiopian leaders have challenged
the validity of the 1929 Agreement, especially as it applies to
them.
Beginning in 1956, Ethiopia began to expressly assert its
rights to the waters of the Nile River and argued that it was not
bound by the 1929 Anglo-Egyptian Treaty.43 In 1902, Britain
and Ethiopia entered into a treaty to settle the boundary
between
the Ethiopian Kingdom and British Sudan.44 In this
treaty,
Ethiopia agreed not to engage in any construction
projects
on the Blue Nile and its tributaries that would interfere
with the flow of water to the Nile River, and hence, negatively
impact
Britain’s agricultural interests in Egypt. However,
Ethiopia’s statements in 1956 and 1957 indicated that it no
longer considered the
3
1902 Agreement and other colonial-era agreements binding on
the country.45
Third, as more European colonies in the Nile River Basin
gained independence in the 1950s and 1960s, many of the new
countries followed Ethiopia’s approach to treaty succession and
denounced the Nile Waters Agreements and argued that they
did not bind them.46 After it gained independence from Egypt
and Great Britain in 1956, Sudan officially repudiated the 1929
Agreement, arguing that “economic and technical development
since 1929 had rendered these provisions obsolescent.”47 The
basic argument was that the agreement was outdated and was
no longer capable of meeting the needs of modern States
struggling to deal effectively with poverty, rapid population
growth, and other post-independence development challenges.
Hence, these countries spoke in favor of a new international
legal framework that would “reflect not only the legal concerns
of all parties involved, but also concern (at least in the postcolonial context) for shifting realities in the process of an
agreement’s implementation.”48
Fourth, along with the fact that all the upstream riparian
States have denounced them and believe that they do not
represent effective mechanisms to deal with post-independence
development challenges, the agreements also do not provide
mechanisms to confront issues, such as ecosystem
sustainability, environmental protection, and sustainable water
management, which have become priorities in many countries
in the region, including those in the Nile River Basin.49
Fifth, the 1929 Anglo-Egyptian Treaty is totally
inadequate because it allocates water only to Egypt and Sudan.
The other riparians, whose streams and lakes supply all the
water flowing into the Nile River, effectively do not have any
allocations and hence, consider the existing legal framework as
producing an allocation and utilization system that is unfair,
inequitable, and simply not practical.50
Finally, the allocation made possible by the 1959
Agreement “no longer reflects the interests and needs of both
Egypt and the Sudan and a new agreement should be
negotiated.”51 In addition to droughts, which have significantly
reduced the amount of available water in the Basin, both Sudan
and Egypt have seen significant increases in their populations
since the 1959 agreement was signed and, in addition, these
countries have improved their capacity to harvest and utilize
the waters of the Nile River for development.52
III. A NEW LEGAL FRAMEWORK FOR THE NILE?
A. THE ROLE OF INTERNATIONAL WATERCOURSE LAW
One way to start a conversation on the development of a
new legal framework for the Nile River Basin is to examine the
law governing international watercourses. The Convention on
the Law of Non-navigational Uses of International
Watercourses (“U.N. Watercourses Convention”) is a good
place to start.53 The U.N. Watercourses Convention deals with
issues that may greatly interest the Nile
riparian States.
River
Of great importance is Art. 4(1), which states that “Every
in the negotiation of
watercourse State is entitled to participate
agreement that
and to become a party to any watercourse
applies to the entire watercourse, as well
as
to participate in any
relevant consultation.”54 Since none of the
upstream
riparian
States participated in the negotiation of, or were parties to, the
55
Nile Waters Agreements, it is quite appropriate, based on
international law principles, to argue that the exisiting legal
theor 4
framework be discarded in favor of negotiations to produce a
more inclusive compact.
The principle widely considered the cornerstone of the
Convention and, indeed, the foundation for the management of
international watercourses, is Article 5’s “Equitable and
reasonable utilization and participation,”56 which states that
“Watercourse States shall participate in the use, development
and protection of an international watercourse in an equitable
and reasonable manner.”57 In order to determine what
constitutes “reasonable and equitable use,” certain relevant
factors provided in Art. 6 must be considered.”58
Article 7 contains another foundational principle
considered critical to the management of international
watercourses—the “obligation not to cause signification
harm.”59 In harvesting and utilizing the waters of an
international watercourse or putting the latter to other uses,
States are required to “take all appropriate measures to prevent
the causing of significant harm to other watercourse States.”60
Articles 5 and 7 actually complement each other—they work
together to provide mechanisms for all riparian States, both
upstream and downstream, to resolve conflicts arising from
watercourse use.61 As interpreted by Professor Stephen C.
McCaffrey,62
if a State believes it has sustained significant
harm due to a co-riparian State’s use of an
international watercourse, it will ordinarily
raise the issue with the second State. In the
negotiations that follow, article 5, 6, and 7 in
effect provide that the objective is to reach a
solution that is equitable and reasonable with
regard to both States’ uses of the watercourse
and the benefits they derive from it.63
Article 8 of the U.N. Watercourses Convention imposes on
watercourse States the obligation to cooperate and they are
required to do so “on the basis of sovereign equality, territorial
integrity, mutual benefit and good faith in order to attain
optimal utilization and adequate protection of an international
watercourse.”64 To enhance that cooperation, Art. 9 provides
for “regular exchange of data and information”65 on water
quality, as well as on the “hydrological, meteorological,
hydrogeological and ecological nature” of the watercourse.66
The Convention’s Section III is devoted to “planned
measures”—specifically, the obligation of watercourse States
to notify other parties that might be affected by any projects
that they plan to undertake on the watercourse.67 In fulfilling
this obligation, States are required to make “timely
notification”68 and provide “available technical data and
information, including the results of any environmental impact
assessment.”69 The notified State is expected to reply as soon
as possible, but is granted up to six months to do so.70 If the
notified
State believes that the planned project would be
inconsistent with or violate the provisions of Articles 5 or 7, the
affected States must engage in negotiations to secure an
equitable
resolution of the problem.71
The Convention also provides legal mechanisms for jointly
protecting,
preserving,
and
managing
international
72
watercourses.
Specifically, this part of the Convention
provides
for the “prevention, reduction and control of
73
pollution,”
and obligates all watercourse States to take all
r
necessary and appropriate measures to prevent and mitigate
conditions related to the international watercourse that may be
harmful to other watercourse States.74
B. THE U.N. WATERCOURSES CONVENTION AND THE NILE
RIVER BASIN
As stated in Art. 3(1) of the U.N. Watercourses
Convention, the latter does not affect “the rights or obligations
of a watercourse State arising from agreements in force for it
on the date on which it became a party to the present
Convention”75—that is, the U.N. Watercourses Convention
“does not affect the status or obligations of existing
agreements,”76 such as the Anglo-Egyptian Treaty of 1929 and
the 1959 Bilateral Agreement between Egypt and Sudan.
Parties to an international watercourse, of course, are free to
negotiate and adopt a new regional compact that can coexist
with the Convention.77 Since the Nile River Basin is in need of
a new legal framework to deal effectively and fully with
“current environmental and water allocation issues,”78 the Nile
River’s eleven riparian States can use the U.N. Convention as
“the basis for a new Nile agreement.”79
Unfortunately, any attempt to apply the U.N. Convention
to the Nile River or to use it as a foundation for the
development of a new legal framework for the Nile River Basin
could face significant problems.80 First, many of the Nile River
Basin riparian States either voted against the U.N.
Watercourses Convention or abstained from voting.81 Second,
none of the eleven Nile River riparian States have signed or
ratified the U.N. Watercourses Convention since it was adopted
in 1997.82
At the Working Group level, several of the Nile River
Basin countries made comments that reveal their unwillingness
to utilize the Convention as a foundation for the development
of a new Nile River legal framework.83
Third, Art. 6’s “equitable and reasonable utilization”
principle is extremely vague and difficult to apply. As argued
by Carroll,84 since each State is allowed to consider a litany of
“factors and circumstances,”85 “which have no given weight,
and thus it may be difficult to reach agreement on what
combination of factors constitutes equal utilization.”86
C. THE IMPACT OF NATIONAL WATER NEEDS ON THE
PRINCIPLE OF EQUITABLE AND REASONABLE UTILIZATION
1. Egypt
Variations in water needs within the Nile River Basin
countries could subject Art. 6’s principle of equitable and
reasonable utilization to the types of interpretations that may
make it very difficult to reach agreement. Egypt relies totally
on waters from the Nile River for all its domestic and
commercial needs and with existing technology, the country
currently has no other source of water. It is no wonder that
Egyptian authorities have insisted that
the country’s so-called
87
natural and historically acquired rights
be maintained. Thus,
despite the fact that the upstream riparian States have strongly
granted Egypt
protested the unfairness of the water allocation
authorities have
by the Nile Waters Agreements, Egyptian
88
resisted any efforts to change them through
new negotiations.
5
During the Working Group negotiations, Egyptian
representatives argued that “the availability of other water
resources”89 should be considered when determining what is
equitable utilization under Art. 6. The Working Group did not
accept Egypt’s suggestion but it went on to add, as a factor to
be considered in determining “equitable and reasonable
utilization,”90 “the availability of alternatives, of comparable
value, to a particular planned or existing use.”91
For many years, Egyptians have argued that their country
is the gift of the Nile River and without the latter, there is no
Egypt.92 For millennia, they have used the waters of the Nile
River for commercial and domestic purposes and the country
has eventually formed a very unique relationship with the river.
Hence, today’s Egyptians could argue that since they were the
first to “develop” the Nile River’s waters and put them to
productive use and given the fact that their very survival
depends on these waters, their present use is equitable.93 The
Egyptians could also argue that taking into consideration “the
population dependent on the watercourse” provision of Art.
6(1)(c),94 the country should be allowed to maintain the
historical water allocations that the country’s population has
depended on for millennia.95 Finally, Egypt’s leaders could
argue that since the country currently has the most developed
and advanced systems of water harvest and utilization, as well
as conservation in the Nile River Basin, and that in line with
Art. 6(1)(f), it is indeed using water reasonably and equitably.96
2. Ethiopia
Ethiopia can view equity differently, and argue that since
its highlands provide more than 80 percent of the Nile’s waters,
it should be granted a greater share, at the minimum, more than
what is currently granted to Egypt.97 This argument, however,
cannot be sustained under the provisions of Art. 6—water
contribution is not a relevant factor in the determination of
equitable and reasonable utilization under this convention.98
Of course, Ethiopia could invoke other Art. 6 factors or
provisions to support its argument that equity requires that it be
allocated more of the waters of the Nile River. A persuasive
argument for increased allocations to Ethiopia could be
supported by its “social and economic needs”;99 the
dependence of its population on the watercourse;100 lack of
“availability of alternatives, of comparable value, to a
particular planned, or existing use”;101 and that Egypt’s current
use could have a significantly negative impact on Ethiopia’s
ability to harvest and utilize the waters for its own
development.102 It appears, then, that both Egypt and Ethiopia
could use Art. 6 to come to completely different results
regarding the equitable and reasonable utilization of the waters
of the Nile River.
Finally, under Art. 6(g),103 other riparian countries’ water
uses must be taken into consideration when determining
equitable
use. Unfortunately, the term “comparable use” is not
granted a definition and its use is subject to interpretation. In
fact, each
riparian State could formulate its interpretation of
“comparable
use” to support its own concept or view of
equitable and reasonable utilization.104
D. OBLIGATION NOT TO CAUSE SIGNIFICANT HARM
According to Art. 7, “in utilizing an international
………………
105
watercourse in their territories,”
all riparian States are
required to “take all appropriate measures to prevent the
causing of significant harm to other watercourse States.”106
But, what exactly are “all appropriate measures” and, as argued
by some scholars,107 what activities or actions on behalf of an
international watercourse user would constitute the duty of “all
appropriate measures” to prevent damaging the interests of
other users of the watercourse?108
Since “harm” is not defined by the Convention, affected
parties would have to determine what constitutes harm and
when it has actually been imposed on one by another.109 What,
then, is “significant harm”? Would construction of the Grand
Ethiopian Renaissance Dam on the Blue Nile constitute
“significant harm” to Egypt? In fact, is “harm” to another
limited to activities that reduce the flow of water to others or
does it include activities that degrade the quality of the
watercourse? Hence, given the fact that the Convention has
failed to provide a definition for “harm,” the application of this
principle is likely to be very difficult.
If these principles are used to design a new legal
framework for the Nile River Basin or incorporated into such
an agreement, they would not be enough to resolve the problem
of “equitable utilization.” In fact, some Nile River riparian
States have argued that the “no harm principle” should only be
invoked and made operational when a watercourse State “has
exceeded its equitable or reasonable use.”110 Of course, since
time immemorial, Egyptians have claimed that their very
survival depends on uninterrupted flow of water into the Nile
River and the continued flow of the latter through their
territory.111 Given the positions that the Nile River riparian
States have taken in regards to the utilization of the waters of
the Nile River, incorporating the principles of “equitable and
reasonable utilization” and the “obligation not to cause
significant harm” into a new Nile River Basin legal framework
would essentially “pit upstream and downstream states against
each other.”112
IV. THE NILE RIVER BASIN COOPERATIVE FRAMEWORK
AGREEMENT: CAN THIS BE THE NEW LEGAL FRAMEWORK?
A. INTRODUCTION
In 1999, the Nile River Basin countries,113 working under
the auspices of the Nile Basin Initiative (NBI), started
negotiations to produce a new legal framework for the Nile
River. The hope was that this new legal framework would
replace the Nile Waters Agreements. Development of this legal
framework, which would be called the Cooperative Framework
Agreement (CFA), was undertaken under the leadership of the
Council of Ministers of the NBI countries. The CFA
represented the first effort by the Nile River riparian States to
introduce the principle of equitable and reasonable water
allocation and utilization into discussions about Nile River
governance.114
The CFA sought to replace unilateralism
and competitive
nationalism with a regional and cooperative
approach to
dealing with Nile River issues. The Nile River riparians,
that the most
particularly the upstream States, believed
Nile
River Basin were
important obstacle to cooperation in the
the Nile Waters Agreements.115 They
believed
very
strongly
that a new, regionally-based cooperative
agreement
was needed
g
g
6
116
to replace all the colonial-era treaties. When the Council of
Ministers
(“COM”) of the Nile River Basin States met in
Entebbe, Uganda, in June 2007, the parties were unable to
reach agreement because of the insistence by Egypt and Sudan
that Article 14 (b) of the CFA be replaced.117 What the COM
adopted, without the consent of both Egypt and Sudan, read
partly as follows: Nile Basin states therefore agree, in a spirit
of cooperation: “(a) to work together to ensure that all States
achieve and sustain water security; (b) not to significantly
affect the water security of any other Nile Basin State.118
Egypt and Sudan wanted Article 14(b) amended to
obligate all the riparian States “not to adversely affect the water
security and current uses and rights of any other Nile Basin
State.”119 Since the COM was unable to fully resolve the issue
over the amendment to Article 14(b) suggested by Egypt and
Sudan, it referred the matter of water security to the Heads of
State and Governments of the riparian States for resolution.120
Efforts to resolve this issue, however, proved fruitless because
Egypt and Sudan refused to accept the wording of 14(b) that
was acceptable to upstream riparian States and the latter
objected vigorously to the wording suggested by Egypt and
Sudan.121
The source of conflict between the two parties—the
upstream and downstream riparian States—is the expression
“current uses and rights” of any other Nile Basin State.122 Since
the Nile Waters Agreements determine current uses and rights,
the acceptance of the alternative wording of Article 14(b)
suggested by Egypt and Sudan would effectively and
essentially grant legitimacy to the Nile Waters Agreements and
allocate nearly 90 percent of the waters of the Nile River to the
two downstream riparian States.123 Thus, adoption of the
alternative Article 14(b) would effectively defeat the purpose
for which the upstream riparian States opted to design the
CFA—which was, to provide an alternative legal framework
for governing the Nile River that guarantees equitable and
reasonable utilization.
B. WILL THE CFA REPLACE THE EXISTING LEGAL
FRAMEWORK IN THE NILE RIVER BASIN?
During the negotiations to produce the CFA, the upstream
riparian States wanted the new agreement to replace the
anachronistic Nile Waters Agreements—that is, they wanted
“the new agreement to supersede any previous agreements”124
and provide all riparians with a legal framework capable of
achieving equity and fairness in allocation and utilization. The
downstream riparian States, however, insisted on a CFA that
would specifically and explicitly recognize and accept as
legally legitimate and binding all previous agreements
governing the allocation and utilization of the waters of the
Nile River. None of the CFA’s more than forty articles,
however, addresses the issue of previous agreements or treaties
and hence, the fate of the colonial-era agreements remains
unresolved.
The official position of the drafting committee125 was to
leave
the issue of previous agreements for resolution at a later
time.126 Ibrahim127 argues, however, that “[a]lthough the
official
position held by the drafting committee is to leave the
of the colonial treaties for later deliberation, it is very
issue
likely
the new treaty will have the legal effect of annulling the
128
previous treaties.”
One, of course, can consider the
provisions of Art. 59 of the Vienna Convention on the Law of
Treaties, which indicate that the termination of the operation of
a treaty can be implied by the conclusion of a latter treaty.129
However, in order for a treaty to be considered terminated
under the provisions of Art. 59, “all the parties to it [must]
conclude a later treaty relating to the same subject-matter”130—
the CFA qualifies because it deals with the same subject-matter
as the Nile Waters Agreements. In addition, there is an “intent”
element,131 which is an additional requirement—the parties to
the later treaty must intend that the subject-matter be governed
by the later treaty—although one can argue that the Nile River
riparian States want the CFA to govern the allocation and
utilization of the waters of the Nile, the version of the CFA
preferred by the upstream riparians is not acceptable to the
downstream States.132
The Nile River riparian States are unlikely to successfully
annul the Nile Waters Agreements through the passage of the
CFA as it is (that is, in its present form), because Egypt and
Sudan have indicated in no uncertain terms that they will not
sign a CFA that is designed to abrogate the Nile Waters
Agreements.133
What, then, would be the legal status of the CFA if Egypt
and Sudan refuse to sign and eventually ratify the treaty? The
most important reason for the upstream riparian States to
develop the CFA was to “balance upper and lower riparian
interests”134 and produce a legal framework that would bring to
an end a longstanding conflict over the allocation and
utilization of the waters of the Nile River. The CFA, as it is
presently constituted, would not bring about that balance. In
fact, even if the CFA—with the Art. 14(b) preferred by the
upstream riparian States—eventually enters into force as
mandated by Article 42,135 it would not have the legal force to
resolve the conflict that has consumed the Nile River Basin
since 1929.136 For, without the participation of the other party
in the dispute (i.e., the downstream riparians, Egypt and
Sudan), the CFA would be considered unilateral action on the
part of the upstream riparians, which the downstream riparians
would consider as not binding on them.
It has been argued by some commentators that the CFA’s
importance lies in the possibility that it could be used by the
upstream riparian States to “diplomatically corner the lower
riparian states”137 and force them into abandoning the Nile
Waters Agreements, or at the very least, moderating their views
on them and allowing substantial amendments to be made to
them.
On May 10, 2010, five of the upstream riparian States138
signed the CFA.139 On February 28, 2011, Burundi, another
upstream riparian, signed the CFA. South Sudan has rejected
the Nile Waters Agreements and sided with the upstream
riparian States but has not yet signed the CFA.140
The main question for the Nile River Basin today is not
whether the existing legal framework should be changed but
how to do so. The CFA could be viewed as a tool that can help
the upstream riparians achieve two important
and related
objectives: (i) force Egypt and Sudan
to
give
up their
hegemonic control of the Bile River Basin; and (ii) improve the
(e.g., dams and
environment for the financing of infrastructure
ability
of all riparians
irrigation systems) that can enhance the
to equitably and reasonably harvest and
utilize
the waters
of the
calculus in the Basin by weakening the ability of the Nile River
and
its tributaries. The fear, especially by Egypt, is that an
improved financing environment could allow an upstream
riparian to unilaterally undertake a project that could
significantly impede water flow to downstream riparians. Such
a project, if successful, could radically change the negotiating
downstream riparians to maintain the status quo.141
V. AN EFFECTIVE LEGAL FRAMEWORK FOR NILE RIVER BASIN:
THE WAY FORWARD
Presently, the legal framework for governing the allocation
and utilization of the waters of the Nile River remains the Nile
Waters Agreements, which have been denounced and rejected
by virtually all the upstream riparian States. The latter argue
that the existing legal framework promotes inequity and
unfairness in the allocation of the waters of the Nile River.
These States, led by Ethiopia, which provides more than 80
percent of the water that flows into the Nile River, want a new
legal framework, one that promotes and enhances equity,
fairness and reasonableness in the allocation of the waters of
the Nile River.142
The way forward calls for the design of a new compact,
one that is acceptable to all Nile River riparian States. The
designers of such a legal framework must take into
consideration the reasonable water and development needs of
all the riparian States. Since the Nile Waters Agreements
allocate virtually all of the Nile River’s waters to Egypt and
Sudan and leave none to the other riparian States, such a legal
framework is incompatible with the principles of equity and
reasonableness, as well as with the development goals and
interests of the upstream riparian States. It is not reasonable to
expect the citizens of the upstream States to abide by rules that
impose enormous costs on them and grant them virtually no
benefits, infringe on their sovereignty, and constrain national
development policies. Hence, the Nile Waters Agreements
should be discarded in favor of a legal framework that reflects
the values, interests and development goals of all the riparian
States.
Designers of a new legal framework must keep in mind
that although Egypt does not provide any water to the Nile
River, the lives of Egyptians and the country itself, have, for
millennia, been totally dependent on the waters of the Nile and
will continue to do so. Hence, for any legal compact for the
regulation of the Nile River to be effective, it must take into
consideration Egypt’s total dependence on the Nile River for
sustenance. Compliance to any legal framework will depend
largely on the willingness of all relevant stakeholders to
voluntarily respect and accept it. How the compact is designed
is important—it is more likely that stakeholders will accept and
respect a new legal framework if it is designed through an
inclusive and participatory process. It is only through such
robust
participation that the designers can produce a legal
framework that reflects and, respects the interests of all
riparians—both
upstream and downstream.
While the Nile River riparians may seek guidance in
international
watercourse law,143 it is important to make clear
that an effective legal framework for the Nile River must be
developed
by these countries themselves and must not be one
imposed
by
external actors (including colonial rulers). Not only
must the governments of all the riparian States participate in
the negotiations to produce the legal framework, but other
7
relevant stakeholders, specifically the communities located
along the banks of the Nile and its tributaries, must be provided
the facilities to participate fully and effectively in the
development and adoption of the legal framework. Such a
participatory and bottom-up process will make certain that the
outcome is a legal framework that reflects the values, interests,
and development needs of all the stakeholders.
But, what about the CFA? If the upstream riparian States
that have signed the CFA successfully ratify it and
subsequently make it functional as prescribed by Article 42,144
the Nile River Basin’s governance crisis would still remain
unresolved. Two legal regimes will exist side-by-side—the
Nile Waters Agreements, which grant Egypt and Sudan
virtually all of the waters of the Nile River based on so-called
historically-acquired rights, and the other, the CFA, which calls
for a new formula for water allocation based on “equity,
reasonableness, and fairness.” None of these two legal regimes
is acceptable to all the Nile River’s riparian States. Hence, the
way forward calls for all Nile riparians to fully resolve the
conflict that prevents them from producing a legal framework
that is acceptable to all of them. The colonial-era legal regime
that is totally obsolete, anachronistic, one-sided, and
dysfunctional must be abandoned. In addition, the upstream
riparians must recognize the vulnerable position that Egypt
finds itself in with respect to access to the waters of the Nile
River. Understanding and appreciating the needs of both parties
will enhance their ability to design and adopt a legal framework
acceptable to all stakeholders.
John Mukum Mbaku is Brady Presidential Distinguished
Professor of Economics and Willard L. Eccles Professor of
Economics & John S. Hinckley Research Fellow at Weber
State University. He is also a Nonresident Senior Research
Fellow at the Brookings Institution, Washington, D.C., and
an Attorney and Counselor at Law (licensed in Utah). He
received the J.D. degree and Graduate Certificate in
Environmental and Natural Resources Law from the S.J.
Quinney College of Law, University of Utah, where he was
Managing Editor, Journal of Land, Resources &
Environmental Law, and the Ph.D. (economics) degree from
the University of Georgia.
***
1
See, e.g., A. MORET, THE NILE AND EGYPTIAN CIVILIZATION
(2001) (examining the relationship between the Nile River and
the evolution of the Egyptian nation).
2
E.g., The 1902 Anglo-Ethiopian Treaty; The 1925 AngloItalian Treaty; The 1929 Anglo-Egyptian Treaty; The 1959
Bilateral Agreement between Egypt and Sudan.
3
See Anglo-Egyptian Treaty, 1929 and 1959 Bilateral
Agreement between Egypt and Sudan.
4
The upstream riparian States are Rwanda, Burundi,
Democratic Republic of Congo, Tanzania, Kenya, Uganda,
Ethiopia, and Eritrea. Since becoming an independent
country
in 2011, South Sudan has generally sided with the upstream
riparians.
5
and the 1959
Notably the 1929 Anglo-Egyptian Treaty
Bilateral Agreement between Egypt and
Sudan.
6
For an introduction to water conflict in the
Nile River
Basin,
see generally D. A. Caponera, Legal Aspects of the
Transboundary River Basins in the Middle East: The Al Asi
(Orontes), The Jordan and The Nile, 33 NAT. RESOURCES J.
629 (1993); Christina M. Carroll, Note: Past and Future Legal
Framework
of the Nile River Basin, 12 GEO. INT’L ENVTL. L.
REV. 269 (1999); J. Lautze & M. Giordano, Transboundary
Water Law in Africa: Development, Nature, and Geography,
45 NAT. RESOURCES J. 1053 (2005); D. Kendie, Egypt and the
Hydro-Politics of the Blue Nile River, 6 NORTHEAST AFRI.
STUD. 141 (1999); Patrick Loch Otieno Lumumba, The
Interpretation of the 1929 Treaty and Its Legal Relevance and
Implications for the Stability of the Region, 11 AFRI.
SOCIOLOGICAL R. 10 (2007).
7
See, e.g., Jeffrey Fleishman, The Nile, Egypt’s Lifeline in the
Desert, Comes Under Threat, LOS ANGELES TIMES, November
12, 2012.
8
The 1929 Anglo-Egyptian Treaty and the 1959 Bilateral
9
Exchange of Notes Between His Majesty’s Government in the
United Kingdom and the Egyptian Government in Regard to
the Use of the Waters of the River Nile for Irrigation Purposes,
Cairo, May 7, 1929 (With Seven Diagrams), Treaty Series No.
17 (1929), H. M. Stationery Service Office, London (“AngloEgyptian Treaty, 1929”). See also Lumumba, supra note 6.
10
See Art. 4(ii), Anglo-Egyptian Treaty, 1929.
11
See, e.g., Anglo-Egyptian Treaty, 1929, supra note 9, at Art.
4(ii).
12
The Anglo-Egyptian Treaty, supra note 9.
13
The British Government specifically recognized those rights
in the Anglo-Egyptian Treaty, at Art. 22.
14
This was essentially a bilateral treaty between Britain and
Egypt.
15
See generally Valerie Knobelsdorf, Note: The Nile Waters
Agreements: Imposition and Impacts of a Transboundary Legal
System, 44 COLUM. J. TRANSN’L L. 622 (2005-2006).
16
See Art. 2, Anglo-Egyptian Treaty, 1929.
17
See Knobelsdorf, supra note 15.
18
See Art. 22 of the Anglo-Egyptian Treaty, 1929.
19
Knobelsdorf, supra note 15, at 627. See also R. SAID, THE
RIVER NILE: GEOLOGY, HYDROLOGY AND UTILIZATION (1993)
and THE NILE: ORIGIN, ENVIRONMENTS, LIMNOLOGY AND
HUMAN USE (Henri J. Dumont ed., 2009).
20
Knobelsdorf, supra note 15, 627. See also Anglo-Egyptian
Treaty, 1929, Art. 4(ii).
21
1959 Agreement is officially called United Arab Republic
and Sudan Agreement (With Annexes) for the Full Utilization
of the Nile Waters, Signed at Cairo, on November 8, 1959,
6519 U.N.T.S. 63 (“1959 Bilateral Agreement”).
22
The treaty’s title includes the following words: “For the Full
Utilization of the Nile Waters.” See also the treaty’s
“Preamble” and Art. 1, 1959 Bilateral Agreement.
23
This information is recited in Art. 1, 1959 Bilateral
Agreement.
24
1959 Bilateral Agreement, Art. 2(3)-(4).
25
See Art. 1, 1959 Agreement & Art. 22, Anglo-Egyptian
1929.
Treaty,
26
See, especially, the preamble to the 1959 Agreement.
27
Rwanda,
Burundi, DRC, Tanzania, Kenya, Uganda, Ethiopia
and Eritrea.
28
For example, through the Nile Basin Initiative. See generally
Jutt Brunee & Stephen J. Toope, The Changing Nile Basin
Regime:
Does Law Matter?, 43 HARV. INT’L L. J. 105 (2002);
Christina
M. Carroll, Past and Future Legal Framework of the
Nile
River
Basin, 12 GEO. INT’L L. REV. 269 (1999).
8
29
The 1929 Agreement and the 1959 Agreement are
collectively referred to as “The Nile Waters Agreements.”
30
See generally Carroll, supra note 28.
31
Id.
32
Quoted in M. Pflanz, Egypt, Sudan Locks Horns with Lower
Africa over Control of the Nile River, CHRISTIAN SCIENCE
MONITOR, June 4, 2010. Egypt and Sudan have long argued
that the Nile Waters Agreements are international legal
instruments, which are binding on them.
33
D. Kendie, Egypt and the Hydro-Politics of the Blue Nile
River, 6 NORTHEAST AFR. STUD. 141, 147 (1999). Emphasis in
original. Eritrea, an upstream riparian State, which, with
significant help from Egypt, gained its independence from
Ethiopia in 1991, has sided with Egypt and supported the latter
in its efforts to protect and retain its so-called historically
acquired rights. See generally Kendie, id.
34
Id.
35
Id. See also Knobelsdorf, supra note 15, at 630 & Carroll,
supra note 28, at 279.
36
The Nile Waters Agreements consist of the Anglo-Egyptian
Treaty, 1929 and the 1959 Bilateral Agreement between Egypt
and Sudan.
37
See, e.g., Christina M. Carroll, Note: Past and Future Legal
Framework of the Nile River Basin, 12 GEO. INT’L ENVT’L. L.
REV. 269, (1999).
38
Id.
39
Both the 1929 Anglo-Egyptian Treaty and the 1959 bilateral
Treaty between Egypt and Sudan set the stage for most of the
conflict that now exists in the Nile River Basin regarding the
allocation and utilization of the waters of the Nile River.
40
Carroll, supra note 37, at 281. For an examination of the
“Clean-Slate” theory of treaty succession and the Nyerere
doctrine, see generally R. Schaffer, Succession to Treaties:
South African Practice in the Light of Current Developments in
International Law, 30 INT. & COMP. L. Q. 593 (1981) & Valerie
Knobelsdorf, Note: The Nile Waters Agreements: Imposition
and Impacts of a Transboundary Legal System, 44 COLUM. J.
TRANSN’L L. 622 (2005-2006).
41
Tanganyika (now Tanzania) was one of the colonies that
Britain was supposedly representing when it signed the AngloEgyptian Treaty in 1929. Shortly after independence in 1961,
then Prime Minister Julius Nyerere stated in a letter dated July
4, 1962, that “an agreement purporting to bind Tanganyika in
perpetuity to secure Egyptian consent before undertaking its
own development programs based on its own resources was
considered to be incompatible with Tanganyika’s status as a
sovereign State.” Excerpted in GEBRE TSADIK DEGEFU, THE
NILE:
HISTORICAL,
LEGAL,
AND
DEVELOPMENTAL
PERSPECTIVES—A WARNING FOR THE TWENTY-FIRST
CENTURY 337 (2003). See also Carroll supra note 37, at 279.
42
Although Ethiopia was occupied briefly by Italian forces
during World War II, it is the only African country that has
never been subjected to colonial rule.
43
Carroll, supra note 37, at 279.
44
The treaty is officially called “Treaties
Relative to the
Frontiers Between Sudan, Ethiopia, and
Eritrea,
May 15, 1902,
Eth.-Gr.Brt.-Italy (although it is also known as the Anglo of
the
agreement).
Ethiopian Treaty of 1902, Italy was part
For
see generally Edward
an interesting analysis of this treaty,
Ullendorf, The Anglo-Ethiopian Treaty
of 1902, 30 B ULLETIN
SCH. ORIENTAL STUD. 641 (1967). 45
Knobelsdorf, supra note 40, at 630.
Id. See also Carroll, supra note 37.
46
47
Yimer Fisseha, State Succession and the Legal Status of
International Rivers, in THE LEGAL REGIME OF
INTERNATIONAL RIVERS AND LAKES 177, 187 (Ralph Zacklin
& Lucius Cafllish eds., 1981).
48
Knobelsdorf, supra note 40, at 635.
49
50
Id.
51
Id.
52
In addition to the fact that increases in population have
meant that more food has to be produced, hence, demanding
more water for an agriculture sector that is dependent almost
entirely on irrigation, the demand for water for household use
has also increased significantly. See generally THE NILE RIVER
BASIN:
WATER,
AGRICULTURE,
GOVERNANCE
AND
LIVELIHOODS (Seleshi Bekele Awulachew, Vladimir Smakhtin,
David Molden & Don Peden eds., 2012).
53
UN Convention on the Law of the Non-Navigational Uses of
International Watercourses, May 21, 1997, G.A. Res. 5/229,
U.N. GAOR, 51st Sess., 99th plen. Mtg., U.N. Doc.
A/RES/51/229(1997)
(hereafter
U.N.
Watercourses
Convention).
54
U.N. Watercourses Convention, supra note 53, at Art. 4(1).
55
1929 Anglo-Egyptian Treaty & 1959 Bilateral Agreement
between Egypt and Sudan.
56
U.N. Watercourses Convention, supra note 53, Art. 5.
57
U.N. Watercourses Convention, supra note 53, at Art. 5(2).
58
U.N. Watercourses Convention, supra note 53, at Art.
6(1)(a)-(g). These factors include, but are not limited to,
geography; hydrology; climatic conditions; past, present, and
potential water uses; population; economic and social needs of
each basin State; comparative costs of alternative means of
meeting the economic and social needs of each basin State;
availability of other resources; cost minimization in the
utilization of the waters of the Basin; etc.
59
U.N. Watercourses Convention, supra note 53. Art. 7(1).
60
Id.
61
See Articles 5, 6, 7, U.N. Watercourses Convention, supra
note 53.
62
Stephen C. McCaffrey, Convention on the Law of the NonNavigational Uses of International Watercourses, U.N.
Audiovisual Library of International Law, available
athttp://legal.un.org/avl/ha/clnuiw/clnuiw.html (last visited on
April 13, 2014).
63
Id.
64
U.N. Watercourses Convention, supra note 53, Art. 8(1).
65
66
67
U.N. Watercourses Convention, supra note 53, Arts. 11-19.
68
69
70
U.N.
Watercourses Convention, supra note 53, Arts. 13 &
15. See also Christina M. Carroll, Note: Past and Future Legal
Framework
of the Nile River Basin, 12 GEO. INT’L ENVTL. L.
REV
.
269,
285-286
(1999).
71 “Affected States” include both the “notifying States” and the
“notified
States.” U.N. Watercourses Convention, supra note
53, Art. 17(1).
72
U.N.
Watercourses Convention, supra note 53, Arts. 20-26.
73
U.N.
Watercourses Convention, supra note 53, Art. 21.
74 U.N. Watercourses Convention, supra note 53, Art. 27.
9
75
Christina M. Carroll, Past and Future Legal Framework of
the Nile River Basin, 12 GEO. INT’L ENVTL. L. REV. 269, 286
(1999).
77
Id.
78
Id.
79
Id. See, especially Art. 3 of the U.N. Watercourses
Convention, which allows for the development of regional
watercourses legal frameworks that can co-exist with the U.N.
Convention.
80
Carroll, supra note 76, at 287-288.
81
Egypt, Ethiopia, Rwanda, and Tanzania abstained from
voting; the DRC and Uganda did not take part in the vote;
Burundi voted against; and only Kenya and Sudan voted in
favor. See, e.g., Carroll, supra note 76, at 287.
82
U.N. Convention on the Law of the Non-Navigational Uses
of International Watercourses, Ratification Status, available at
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtds
g_no=XXVII-12&chapter=27&lang=en (last visited on April
13, 2014).
83
Carroll, supra note 76, at 287. For example, Ethiopia,
Rwanda, and Sudan disagreed with Art. 32’s “nondiscrimination” clause. U.N. Watercourses Convention, Art.
32.
84
85
U.N. Watercourses Convention, Art. 6(1)(a)-(g).
86
Carroll, supra note 76, at 287-288.
87
These rights were recognized by Great Britain in the AngloEgyptian Treaty, 1929. See, e.g., Dereje Zeleke Mekonnen, The
Nile Basin Cooperative Framework Agreement Negotiations
and the Adoption of a ‘Water Security’ Paradigm: Flight into
Obscurity or a Logical Cul-de-sac?, 21 EUR. J. INT’L L. 421,
432 (2010).
88
See generally Mekonnen, supra note 87; see also R. O.
COLLINS, THE NILE (2002).
89
Stephen C. McCaffrey & Mpazi Sinjela, The 1997 United
Nations Convention on International Watercourses, 92. A.J.I.L.
97, 100 (1998). Professor Stephen C. McCaffrey was the Chair
of the ILC Working Group on the Draft Articles of the U.N.
Convention on International Watercourses.
90
U.N. Watercourses Convention, Art. 6.
91
U.N. Watercourses Convention, Art. 6(g). It is not clear
whether, in considering those alternative water resources, one
needs to be cognizant of such things as the quality of the water.
92
Daniel Kendie, Egypt and the Hydro-Politics of the Blue Nile
River, 6 NORTHEAST AFRICAN ST. 141, 141 (1999).
93
Christina M. Carroll, Note: Past and Future Legal
Framework of the Nile River Basin, 12 GEO. INT’L ENVT’L L.
REV. 269, 288 (1999).
94
U.N. Watercourses Convention, Art. 6(1)(c). In fact, as much
as 96% of Egypt’s population depends entirely on and lives on
the banks of the Nile River. See, e.g., Kendie, supra note 92, at
142.
95
See 1959 Bilateral Agreement between Egypt and Sudan.
96
Carroll, supra note 93, at 288. See also U.N. Watercourses
Convention, Art. 6(1)(f).
97
Jutta Brunee & Stephen J. Toope, The Changing Nile Basin
’ L L. J. 105, 117
Regime: Does Law Matter?, 43 HARV. INT
(2002). Specifically, three rivers—the Blue Nile (which drains
Lake Tana), the Atbara and Sobat Rivers,
provide the
bulk
of
the water that flows into the Nile River.
The
rest
of
the
Nile
76
River waters come from the White Nile, which originates in
Lake
Victoria. Id.
98
Art. 6 of the U.N. Watercourses Convention provides
“relevant factors and circumstances” that must be used to
determine if an international watercourse is being utilized
equitably. “Water contribution” is not one of those factors. See
also Christina M. Carroll, Past and Future Legal Framework of
the Nile River Basin, 12 GEO. INT’L ENVT’L. L. REV. 269, 288289 (1999).
99
Art. 6(b), U.N. Watercourses Convention.
100
Art. 6(c), U.N. Watercourses Convention.
101
Art. 6(g), U.N. Watercourses Convention.
102
Art. 6(d), U.N. Watercourses Convention.
103
Art. 6(g), U.N. Watercourses Convention.
104
105
Art. 7(1), U.N. Watercourses Convention.
106
107
108
Id.
109
110
Carroll, supra note 98, at 290. Ethiopia has made such a
claim.
111
See generally Daniel Kendie, Egypt and the Hydro-Politics
of the Blue Nile River, 6 NORTHEAST AFRI. STUD. 141 (1999)
& Dereje Zeleke-Mekonnen, The Nile Basin Cooperative
Framework Agreement Negotiations and the Adoption of a
‘Water Security’ Paradigm: Flight into Obscurity or a Logical
Cul-de-sac?”, 21 EUR. J. INT’L L. 421 (2010).
112
113
The NBI countries are Ethiopia, Sudan, Egypt, Tanzania,
Eritrea, Kenya, Uganda, Democratic Republic of Congo
(DRC), Burundi, and Rwanda. After its independence in 2011,
South Sudan became the eleventh riparian State.
114
Egypt and Sudan most likely agreed to participate in the
CFA negotiations in order to protect or safeguard their rights,
all of which had been acquired through the Nile Waters
Agreements.
115
Mekonnen, supra note 111, at 428.
116
Id.
117
Id. See also Agreement on the Nile River Basin Cooperative
Framework, infra note 118.
118
Agreement on the Nile River Basin Cooperative
Framework, available at
http://www.internationalwaterlaw.org/documents/regionaldocs/
Nile_River_Basin_Cooperative_Framework_2010.pdf (last
visited on April 15, 2014).
119
Id. at Annex. See also Mekonnen, supra note 111, at 428.
Emphasis added.
120
Mekonnen, supra note 111, at 428. Specifically, the job of
resolving the conflict over Article 14(b) was within the
purview of the Nile River Basin Commission and this was
supposed to be completed within six months of its
establishment.
The original Article 14(b) states as follows: “(b)
the unresolved Article 14(b) is annexed to be resolved by the
Nile River
Basin Commission within six months of its
establishment.”
121 Alternative wording of Article 14(b) put forth by Egypt and
Sudan:
“14(b) not to adversely affect the water security and
current
uses and rights of any other Nile Basin State.” This is
the Article 14(b) agreed to by all the upstream riparian States,
but objected to by Egypt and Sudan: “14(b) not to significantly
affect the water security of any other Nile Basin State.”
10
122
See Annex, Agreement on the Nile River Basin Cooperative
Framework, supra note 118.
123
See the Anglo-Egyptian Treaty, 1929, and the 1959 Bilateral
124
A. M. Ibrahim, The Nile Basin Cooperative Framework
Agreement: The Beginning of the End of Egyptian HydroPolitical Hegemony, 18 MO. ENVT’L L. & POL’Y REV. 282
(2011).
125
This was the committee charged by the Nile River Basin
riparian States with drafting the Cooperative Framework
Agreement.
126
Ibrahim, supra note 124, 302-303.
127
Id.
128
Id. at 303. See also Vienna Convention on the Law of
Treaties,
Art.
59,
available
at
http://www.worldtradelaw.net/misc/viennaconvention.pdf (last
visited on April 16, 2014).
129
Vienna Convention on the Law of Treaties, Art. 59, supra
note 128.
130
Id. at Art. 59(1).
131
Id. at Art. 59(1)(a).
132
The main disagreement is over Art. 14(b).
133
See Agreement on the Nile River Basin Cooperative
Framework, Art. 14(b) and Annex.
134
Ibrahim, supra note 124, 304.
135
Article 42 states that “The present Framework shall enter
into force on the sixteenth day following the date of the deposit
of the sixth instrument of ratification or accession with the
African Union.”
136
In 1929, the first treaty—the Anglo-Egyptian Treaty—to
provide each Nile River riparian with a quantitative allotment
of Nile River waters was passed.
137
Ibrahim, supra note 124, at 305.
138
The five countries are Ethiopia, Kenya, Uganda, Rwanda,
and Tanzania.
139
Note that this is the version of the CFA that retains the
Article 14(b) preferred by the upstream riparians but opposed
by Egypt and Sudan.
140
See generally Machel Amos, South Sudan Rejects the
Colonial Nile Waters Agreement, available at
141
Ibrahim, supra note 124, at 310. These fears may have
proven prophetic with the decision by Ethiopia to construct a
dam on the Blue Nile in the Benishangul-Gumuz Region of
Ethiopia. Although the financing environment in the Basin has
not actually changed, the Ethiopians have still proceeded with
construction of the Grand Ethiopian Renaissance Dam
(GERD), hoping to source the funds primarily from local
sources. See, e.g., Michael Hammond, The Grand Ethiopian
Renaissance Dam and the Blue Nile: Implications for
Transboundary Water Governance, University of Exeter (UK)
Discussion Paper 1307, February 2013, available at
http://www.globalwaterforum.org/2013/02/18/the-grandethiopian-renaissance-dam-and-the-blue-nile-implications-fortransboundary-water-governance/ (last visited on April 16,
2014).
142
Of course, the definition of “equity,
fairness and
reasonableness” that is acceptable to all Nile River riparian
States would have to be agreed.
143
Law of the NonFor example, the U.N. Convention on the
navigational Uses of International Watercourses.
144
It is assumed that this will occur without
the
participation of
Egypt and Sudan.
11
The Indus Waters Kishenganga Arbitration: Minimum
Flows, Data Exchange, and the Treaty that Holds it
Together KRISTIAN CORBY
I. INTRODUCTION
The Indus Waters Treaty (“Treaty”) between India and
Pakistan governs the use of water for six of the tributary rivers
of the Indus River.1 These rivers originate in India, flow
through the India controlled state of Jammu and Kashmir,
across the Line of Control, the informal border between the
counties that was established from a historic cease-fire line by
the Simla Agreement of July 3, 19722, into Pakistan controlled
Jammu and Kashmir, and into the Arabian Sea.3 The Treaty is
unique in that it assigned the “full use and benefit” of the three
Eastern Rivers to India, the Ravi, Beas and Sutlej Rivers, and
the three Western Rivers to Pakistan, the Indus, Jhelum and
Chenab Rivers.4 However, India retained the right to make use
of the eastern rivers for certain purposes, including
hydroelectric power generation.5 The Kishenganga/Neelum
River is the subject of the Indus Waters Kishenganga
Arbitration (“Arbitration”), and it is a tributary of the Jhelum,
one of the rivers the Treaty assigned to Pakistan.6 Between
2004 and 2006, India began to show a “serious intent to move
ahead
with
a
[hydroelectric]
project”
on
the
Kishenganga/Neelum River.7 Pakistan objected to India’s
project and on May 17, 2010 it submitted a “Request for
Arbitration” pursuant to the Treaty.8
On February 18, 2013, the Court of Arbitration (“Court”)
issued a Partial Award that affirmed India’s right to build the
Kishenganga Hydroelectric Project (“KHEP”).9 However, the
Court also recognized that India would be required to release a
minimum flow of water from the KHEP to protect Pakistan’s
rights and ensure the environmental health of the river.10 The
Court left open the question of exactly how much water would
need to be released, and asked both Parties to submit
comprehensive information on both environmental and
hydroelectric flows.11 In the Court’s Final Award, it determined
that India would be required to release a minimum of 9 cubic
meters per second (“cumecs”) of water when the flow behind
the KHEP was equal to or more than 9 cumecs. This ruling
established as a baseline that the release of a minimum flow
may satisfy an upstream state’s duty to mitigate substantial
environmental harm to a downstream state. This rule must be
considered by nations that plan to build hydroelectric projects
on international watercourses.
This paper will discuss the effect of the Indus Waters
Kishenganga Arbitration on the Indus Waters Treaty and the
management of the Indus River by India and Pakistan, and the
Arbitration’s implications for the development of future
hydroelectric
projects on international watercourses. First, the
paper
will provide a historical perspective of the establishment
of the countries of India and Pakistan, and the negotiation of
the Indus Waters Treaty.
Second, the paper will discuss the history of the dispute
the Kishenganga Hydroelectric Project. Third, the paper
over
E
will discuss the finding of priority for the KHEP and the
minimum flow requirement in the Court’s Partial Award.
Fourth, it will analyze the major decisions in the Court’s Final
Award, and the balance it struck between application of
customary international law and the authority of the Treaty.
Finally, the paper will conclude with a recommendation to
improve exchange of quality assured data between the Parties
and the implications of minimum flow for states with
international watercourses.
A. A Brief History of India, Pakistan, and Jammu and
Kashmir
Prior to British colonization, the territory that is now
known as India and Pakistan was ruled by a number of sultans
and emperors.12 Muslims took control of Delhi in 1192, and an
evolution of Muslim dynasties ruled the Sub-continent until
1857.13 The Muslim rule came to an end when the British East
India Company defeated the last resistance of Indian soldiers.14
India was a British colony for ninety years, until the British
relinquished control on August 15, 1947.15 Prior to
independence, social and political struggles between Muslims
and Hindus led political leaders to suggest a partition of India
between the two faiths.16 The Independence Act of 1947
established two independent countries to be known as India and
Pakistan.17
During partition there was considerable conflict over
which country would acquire the two largest states, Kashmir
and Hyderabad.18 Kashmir is now known as Jammu and
Kashmir, and it straddles the unofficial India-Pakistan border in
the countries’ mountainous northern regions.19 At the time of
partition Kashmir’s population had a Muslim majority and a
Hindu ruler, and Hyderabad’s population had a Hindu majority
and a Muslim ruler.20 India wanted both states, and Hyderabad
in particular “occupied a special place in the sentiments of
Muslim India.”21 Kashmir, on the other hand, “was
[considered] an integral part of the Muslim concept of
Pakistan.”22 The complexities of this situation was made worse
by British authorities who moved the date to transfer power up
by nearly a year, which rushed partition in a mere two and a
half months.23
The haste with which power was transferred left those in
control of the states with little time to negotiate their
assimilation into a federal regime, and created chaos among the
people.24 The chaos “led to mass murders, abductions, and
arson in every district of the Punjab,” which is the region where
the five tributaries of the Indus flow out the Himalaya.25
26
rivers.”
Punjab literally means “the land of five
“The matter
leading
of accession of states remained unsettled,
to permanent
conflict between India and Pakistan over
of Jammu
the
state
and Kashmir [and], resulting in repeated hostilities between the
two neighboring countries.”27 The actual conflict over the
and
bloody
region’s waters was predictable given the turbulent
partition of the two countries.
12
Map 1: The Indus River Basin
B. A History of Conflict Over the Indus River System
Since the establishment of the two states there has been
conflict over the use of the Indus River System. The first
recorded dispute arose soon after partition in April of 1948
when India, or East Punjab, cut off the flow of water into
Pakistan, or West Punjab.28 An extensive canal system had
existed in Punjab since the mid-nineteenth century, and by
cutting off the water, India had deprived millions of people and
millions of acres of farmland of water.29 This conflict was a
classic example of an upstream state “turning off the tap” to the
downstream state, and it set the tone for the two states’
relationship
to the watercourse. Fortunately, the two countries
were able to resolve the dispute peacefully with India returning
flow to the river the day before the two countries met to agree
on a “Joint Statement.”30 Unfortunately, the peace did not last
for long because a conflict arose shortly thereafter when
Pakistan began planning a reservoir system that could have
potentially flooded portions of Indian Territory.31 Pakistan
even,31
eventually suspended the project, but this and other
conflicts were a chronic problem for the region. India,
Pakistan, and the World Bank recognized that continued
conflict over the Indus River would obstruct both countries’
development. This recognition gave rise to a rare
opportunity for cooperation.
C. Negotiation and Conclusion of the Indus Waters
Treaty
The Indus Waters Treaty is a symbol of optimism and
cooperation for Pakistan and India. Negotiation of the Indus
and
has proven to be a
Waters Treaty took nearly a decade
sturdy instrument for management
of their shared
watercourse. In August of 1951, the continued disputes
prompted India’s Prime Minister, Mr. Jawaharlal Nehru, to
the region and make a
invite David E. Lilienthal to visit
recommendation. Lilienthal had been
the head
of the
Tennessee Valley Authority (TVA)
and
a progressive
lawyer
13
lawyer in the United States.32 The TVA is a semi-autonomous
federal agency in the United States. that was established to
coordinate the development of the Tennessee River Valley.33
The Tennessee River is similar to the Indus River in that it
flows across jurisdictional borders, albeit through six different
U.S. states, not different countries. The TVA was part of
President Franklin Delano Roosevelt’s New Deal plan to
reinvigorate the country’s economy after the Great
Depression.34 As the head of the TVA, Lilienthal coordinated
the multi-state administration and development of the river’s
hydroelectric dams.35
After Lilienthal visited India and Pakistan he wrote an
article in which he recommended that the two states
cooperatively manage the entire Indus River Basin and that the
World Bank facilitate this coordination.36 On September 6,
1951, the World Bank proposed to assist the counties in
developing a coordinated development strategy for the region,
and both States accepted the offer.37 The World Bank
approached the negotiations with the premise that the bank
would secure investments for infrastructure projects that would
improve water supply reliability and generate electricity. The
first few years of negotiations were unproductive, with both
sides proposing substantially different concepts.38 A turning
point came on February 24, 1954, when the World Bank
proposed a framework that would ultimately become the heart
of the Treaty.39 The 1954 Proposal suggested dividing the six
rivers that flow out of India and into Pakistan between the two
countries. Pakistan would have “exclusive use and benefit” of
the “entire flow of the Western Rivers (Indus, Jhelum and
Chenab)” and India would have the same for the “entire flow of
the Eastern Rivers (Ravi, Beas and Sutlej).”40
Dividing the rivers was, and remains, a unique component
in treaties governing the use of an international watercourse,
however, this division suited the troubled relationship between
the countries. The negotiations continued for four more years,
and largely centered on the language that would control India’s
use of Pakistan’s Western Rivers.41 It was agreed that India
would be obligated to “let flow” all the waters of the Western
Rivers, except with respect to domestic use, non-consumptive
use, agricultural use, and the generation of hydroelectric
power.42 India’s right to generate hydroelectric power was
restricted, however, by Annexure D of the Treaty.
The Kishenganga Hydroelectric Project is located on a
tributary of the Jhelum River, and therefore, Paragraph 15(iii)
of Annexure D controls:
“[W]here a Plant is located on a Tributary of
The Jhelum on which Pakistan has any
Agricultural use or hydro-electric use, the
water released below the Plant may be
delivered, if necessary, into another
Tributary but only to the extent that the then
existing Agricultural Use or hydro-electric
use by Pakistan on the former Tributary
would not be adversely affected.”43
Paragraph 15(iii) struck a balance between India’s right to
develop
the rivers in its sovereign territory and Pakistan’s
“exclusive
use and benefit” of the water flowing from the
Western
Rivers. The Indus Waters Treaty was concluded and
s
signed on September 19, 1960, and was signed by India,
Pakistan, and the World Bank.44 The World Bank was a key
third-party in negotiating the Treaty and keeping the two
adversarial neighbors engaged in the process, and therefore, it
is also a Party to the Treaty.
The Treaty created the Permanent Indus Commission (the
Commission) “to establish and maintain cooperative
arrangements for the implementation of the Treaty.”45 The
Commission consists of one commissioner from India and one
from Pakistan; both commissioners are “high-ranking
engineer[s] competent in the field of hydrology and wateruse.”46 Two of the Commission’s primary functions are to
coordinate the exchange of hydrologic data between the
countries and to provide any notice or response to notice that is
required by the Treaty.47 The Kishenganga Arbitration was the
first time in over fifty years since the Treaty was signed that the
Parties had to resort to a court of arbitration to settle a
dispute.48 This fact demonstrates that the Commission has been
an effective means for administering the Treaty, and will play a
key role in carrying out the Court’s Awards.
II. DISPUTE OVER DUELING HYDROELECTRIC PROJECTS
India and Pakistan conceived of hydroelectric projects on
the Kishenganga/Neelum River at similar times. In 2006,
India’s hydroelectric project, the KHEP, was redesigned to be a
run-of-the-river plant within the meaning of the Treaty.49 A
run-of-the-river plant does not store a substantial amount of
water in a reservoir. Instead, as defined by the Treaty, the same
volume of water received behind the dam in seven days must
be released below the dam.50 The KHEP was designed to divert
water from the river into a 23.5 kilometer (14.6 miles) long
tunnel that descends 666 meters (2,185 feet) to a power
generation station.51 The water passes through the turbines and
is discharged into another tributary of the Jhelum called the
Bonar Nallah, which flows into the Jhelum’s main stem.52 The
KHEP is designed to generate 1,350 gigawatt hours of
electricity by diverting up to 58.4 cumecs of water.53
Pakistan’s Neelum Jhelum Hydroelectric Project
(“NJHEP”) is located on the Kishenganga/Neelum River
downstream of the KHEP. Therefore, the NJHEP is upstream
of where the Bonar Nallah connects to the Jhelum’s main
stem.54 The water diverted by the KHEP would be diverted
around the NJHEP and permanently reduce Pakistan’s ability to
generate power.55 The NJHEP is also designed to divert water
into a tunnel and generate power at a powerhouse at a lower
elevation. The NJHEP’s tunnel is 30 kilometers (18.6 miles)
long and has a capacity to generate 969 megawatts of power.
The Parties were unable to settle their differences over the
hydroelectric projects, so Pakistan made a request for
arbitration on May 17, 2010.56
III. ASSEMBLY OF THE COURT OF ARBITRATION
Pursuant to Article IX(5) and Annexure
G of the Treaty, a
seven member Court of Arbitration was assembled to decide
the dispute over the use of the Kishenganga/Neelum River.
and Professor Jan
Two of the members, Judge Bruno Simma
members,
Judge
Paulsson, were appointed by Pakistan and two
Peter Tomka and Professor Lucius Caflisch,
were
appointed by
14
Map 2: The KHEP
India.57 The other three members were chosen pursuant
to
Annexure G, whereby the Secretary-General of the United
Nations was chosen to select the Chairman, the Rector of the
Imperial College of Science and Technology in London was
chosen to select the Engineer Member, and the Lord Chief
Justice of England was chosen to select the Legal Member.58
Judge Stephen M. Schwebel was selected as Chairman,
Professor Howard S. Wheater was selected as the Engineering
Member, and Sir Franklin Breman was selected as the Legal
Member.59 As a testament to the quality of both the dispute
resolution process required by the Treaty, and the
evenhandedness of the decisions, none of the members
appointed by Pakistan or India dissented to the Awards. The
Partial and Final Awards are sturdy landmarks for the Parties
and for international law because they were issued by a
unanimous Court.
bearing on the Parties’ claims to the state of Jammu and
Kashmir.60 The Court emphasized that the Treaty’s authors
were very careful not to incorporate any language into the
Treaty that would influence the rights of the Parties with
respect to their territorial claims to Jammu and Kashmir.61
Instead, the Treaty is focused solely on the waters of the Indus
River System.62 Therefore, the Court concluded that the
“Partial Award does not—and cannot—have any bearing on the
rights or claims that either party may maintain to sovereignty
over the territory of Jammu and Kashmir.”63 The rights and
obligations under the Treaty, however, extend to all waters of
the Indus River System flowing though any of all territory of
India and Pakistan, regardless of either party’s claim to
territorial sovereignty.64
B. India’s Right to Divert Water from the
Kishenganga/Neelum
IV. THE PARTIAL AWARD
A. Territorial Claims to Jammu and Kashmir
The Partial Award was issued on February 18, 2013, and it
is a detailed recitation of the history of the Indus Waters Treaty
and the dispute over the KHEP. Furthermore, it includes an
extensive
analysis of the Treaty and customary international
environmental
law. The first issue the Court analyzed was
whether
the Treaty and the dispute over the KHEP had any
The Court then turned to the issue of whether India’s
KHEP is a permissible use of a river assigned to Pakistan under
India may divert
the Treaty. First the Court considered whether
water from one tributary to another
for
the purpose of
hydroelectric power generation. Generally, India is obligated to
“let flow” the waters of the Western Rivers. However, India
hydroelectric
explicitly maintained the right to generate
power,
Annexure
D and
E of
so long as it does so in accordance with
the Treaty.65 Under Paragraph 15(iii) of
Annexure
D, India
15
Map 3: The KHEP and NJHEP
is explicitly allowed to make intertributary transfers, and the
Court reasoned that the scope of those transfers must include an
amount of water that is necessary to generate electricity.66 In
order to validate the right expressed in the Treaty the Court
found that an intertributary transfer is allowed, and the amount
of water that can be diverted must be commensurate with the
right to generate hydropower. Thus, the Court concluded that
India could divert consistently from the Kishenganga/Neelum
in order to generate hydroelectricity at the KHEP site.
C. Pakistan’s “Then Existing Use”
Next the Court considered whether Pakistan’s NJHEP
constituted a “then existing use” under the Treaty. If the
NJHEP were found to be a preexisting use then India would
have to take it into account when operating the KHEP. The
Court adopted a two step approach whereby it would establish
the “critical period” for when India’s intent to build the KHEP
“crystalized,” and then determine whether the NJHEP could be
considered a “then existing use” prior to that time.67 First, the
Court found unpersuasive the litany of evidence from both
Parties that their projects had crystallized in the 1980s and
1990s.68 Instead, the Court found that actions taken after 2000
were dispositive.69 The period from 2004 to 2006 was
determined to be the “critical period,” and the Court found that
.................
India had “demonstrated a serious intent” evidenced by
concrete actions to make the KHEP a reality.70 Next, the Court
found that Pakistan’s NJHEP project had not “crystalized” until
after this period, and therefore, it was not a “then existing
use.”71 Thus, the KHEP was given priority over the NJHEP to
divert water from the Kishenganga/Neelum River.72
D. The Minimum Flow Requirement
The Court found a basis for the minimum flow
requirement by recognizing that India’s priority in right to
divert water for the KHEP was subject to the constraints of
Paragraph 15(iii) and customary international law. First,
Paragraph 15(iii) gives India the right to construct hydroelectric
projects on the Jhelum and its tributaries, but also requires that
those projects avoid causing harm to Pakistan’s then existing
uses.73 Pakistan’s right to the “exclusive use and benefit” of the
Jhelum did not completely disappear when the Court found that
India had priority to divert water for the KHEP. Instead, the
Court reasoned that there was a tension between the two rights,
and both had to be recognized or else one would be effectively
read out of the Treaty.74 Therefore,
the
Court
found that India
would be required to release a minimum
flow of water below
the KHEP.75
16
Second, the Court found justification for the release of a
minimum flow of water in customary international law. Under
Paragraph 29 of Annexure G of the Treaty, customary
international law can be used to interpret or apply the Treaty.76
The Court cited the Trail Smelter Arbitration and Principle 21
of the 1972 Stockholm Declaration for the broad proposition
that states have a duty to avoid causing transboundary
environmental harm to neighboring states.77 Next, the court
cited the principle of “sustainable development” for the “need
to reconcile economic development with protection of the
environment.”78 Sustainable development is particularly
important to this dispute because the Court struck a balance
between India’s right to develop the Western Rivers and the
duty to prevent any harm to Pakistan’s environment under
customary international law. The Court went on to
acknowledge the Iron Rhine arbitration for the principle “that
States have ‘a duty to prevent, or at least mitigate’ significant
harm to the environment when pursuing large-scale
construction activities.”79 The Iron Rhine Arbitration applies to
both autonomous state actions and to actions taken under a
treaty, and therefore, is applicable to the Kishenganga
Arbitration.80 The Court concluded that the release of a
minimum flow from the KHEP was necessary to mitigate
significant harm to Pakistan.
Finally, the Court recognized that both India and Pakistan
had already acknowledged that the release of a minimum flow
was necessary to protect the environment.81 The Indian
Ministry of Environment and Forests had already concluded its
analysis and committed to releasing 3.94 cumecs from the
KHEP because its national laws require the designation of a
minimum flow below dams.82 Also, Pakistan acknowledged
that it was conducting an analysis of the minimum flow that
would be released below the NJHEP.83 The Court concluded
that both countries “planned, built and operated [their
hydroelectric projects] with environmental sustainability in
mind,” and therefore, a release of a minimum flow was
required.84
At this point, the Court recognized India’s priority to
divert water for the KHEP, but also found that India must
release a minimum flow of water to prevent environmental
harm to Pakistan and protects Pakistan’s rights under the
Treaty. However, the Court did not have enough information to
decide what the actual minimum flow should be, so it requested
that the each Party assemble submissions on the effect that
different flow regimes would have on the environment and
their respective hydroelectric projects.85 The Court
acknowledged that a “precise rate of the minimum flow will be
fixed” in the Final Award so that both countries will have
“stability and predictability” with respect to the supply and
availability of water in the Kishenganga/Neelum River.86
V. THE FINAL AWARD
A. The Requirement of Data Exchange
In preparation for the Final Award, the Court received
voluminous submissions of hydrological data and analysis from
the Parties. The Court acknowledged that the submissions were
strikingly
similar, but that the Parties’ estimates for very low
flows at the Line of Control differed significantly.87 This
variation was due to the lack of observations at the Line of
Control and a limited amount of data from nearby sampling
sites. The Court admitted that there was a lack of data for
where it was needed most, which undercuts the certainty and
accuracy of the courts determination of a fixed minimum
flow.88 Whether or not the Final Award is scientifically
accurate will need to be proven by improved hydrologic
sampling and observations at the Line of Control.
Under Article VI of the Treaty, the two countries are
required to exchange daily flow data for the rivers, daily
extractions or releases from reservoirs, and daily withdrawals,
escapages, and deliveries from canals.89 Paragraph 2 of Article
VI allows either Party to request “any data relating to the
hydrology of the Rivers,” and requires the other Party to
provide it “to the extent that [it is] available.”90 Generally, the
data exchanged by Pakistan under the Treaty is the “raw data”
collected at the sampling sites.91 The exchange of raw data
became a point of contention because as a matter of practice
Pakistan subjects its raw data to quality assurances and
statistical analysis.92 Pakistan considered this quality assured
data to be outside the scope of the type of data exchanged
under the Treaty.93 Pakistan explained that the quality assured
data could not be exchanged within the three month time limit
provided in the Treaty, but suggested that India could have
accessed the quality assured data for a fee.94
As noted above, upon request by one Party, the Treaty
requires the exchange of “any data relating to the hydrology of
the Rivers.”95 Pakistan admitted that “such quality assurance
[is] standard practice,”96 and the Court agreed that “quality
assurance…is consonant with best practices in the field of
hydrology.”97 Further, the exchange and explanation of such
data benefits both countries by improving management of the
river system. Thus, considering that an exchange of quality
assured data is an accepted practice in hydrology, and further
falls within the Treaty’s obligation to exchange “any data
relating to the hydrology of the Rivers,” it is curious that the
Court merely “commends,” rather than requires, the Parties to
exchange quality assured data in the future.98 The need for high
quality science and an elevated discourse about the affects of
water management decisions on the environment is a challenge
faced around the world, and future decisions for water use on
the Indus River ought to incorporate a preliminary exchange of
quality assured data.
B. The Parties’ Submissions: The Effect of Flow on the
Environment and Hydropower Generation
Pakistan completed a holistic assessment using an
environmental model called Downstream Implications of Flow
Transformation (DRIFT).99
DRIFT
analyzes
a
comprehensive set of indicators including, hydrology, biology,
sediments, and geomorphology, at a range of flow scenarios.100
The goal is to comprehensively assess the potential changes of
different flow regimes on the complex
interactions of the
environment. Pakistan used seventeen flow
to predict
scenarios
the effect of the KHEP on the Kishenganga/Neelum River, and
concluded that a minimum flow of 20-40
cumecs was
101
India
necessary to avoid significant harm to the environment.
17
criticized the DRIFT analysis for being a planning tool, and
that the predictions were made by experts who were not
familiar with the region.102 Furthermore, similar to the Court’s
acknowledgments of a lack of data, the DRIFT model lacked
the quality and quantity of data necessary to make its
predictions accurate and useful.103
India had already conducted an assessment for minimum
flow because its national law requires the release of a minimum
flow for environmental reasons.104 India’s Ministry of
Environment and Forests increased its recommendation from
its previous analysis for a minimum flow from 3.94 to 4.25
cumecs. To address the Court’s request for submissions, India
conduced a further study that focused on the water levels
necessary to protect three fish species: the brown trout, snow
trout, and Tibetan stone loach.105 India ruled out all other
environmental factors because it argued that both Parties
agreed the KHEP would not affect threatened species, birds,
mammals, flora, or the human environment.106 India’s
submission concluded that a minimum flow of as little as 2
cumecs would suffice to prevent any environmental harm
because the fish species were adapted to the wide range of flow
levels typical in the high Himalayan streams.107 Furthermore,
most fish inhabited the smaller tributaries of the
Kishenganga/Neelum that would not be affected by the
KHEP.108 Pakistan criticized India’s approach for being
“selective” because it only reported on the effect of flow levels
for a few fish species, and suggested it ignored standard
practices in hydrology to get results that were favorable to its
position.109
Given the challenge of ascertaining a specific amount of
minimum flow with a limited quantity of accurate data and two
vastly different approaches provided by the Parties, the Court
articulated four factors that should be used in the future for
determining the correct approach of an environmental
assessment: “[T]he correct approach will depend upon the
existing state of the river, the magnitude of anticipated
changes, the importance of the proposed project, and the
availability of time, funding, and local expertise.”110 The Court
concluded that a large project, like the KHEP, required an indepth assessment similar to Pakistan’s approach.111 The Court
noted, however, that the merit afforded Pakistan’s assessment
was uncertain given the lack of available data, the short time
allowed for the study, and the lack of local familiarity of the
experts conducting the study.112 The Court also criticized
India’s analysis of the KHEP’s effect on fish species for failing
to provide sufficient understanding of the complex river
system.113 Given the increasing role that environmental
assessments play in the resolution of legal issues, the Court’s
four factors are useful parameters that countries can use to
analyze the appropriate breadth of an environmental
assessment with respect to the environmental effects on
neighboring
countries.
C. The Court’s Minimum Flow Analysis
The Court began by recognizing that, based on India’s
submission, the average ten-day flow at the Line of Control
reached
12 cumecs only nine times in thirty-four years.114 Due
to the rarity of this occurrence, the Court found a flow of 12
cumecs
at the Line of Control to be an “exceptional
conditionally
condition.”115 If the flow in the Kishenganga/Neelum above the
Line of Control dropped below 12 cumecs then an average tenday flow of 12 cumecs at the Line of Control became much
more common: 16% of the time at 9 cumecs and 30% of the
time at 8 cumecs.116 Thus, the Court asserted, based solely on
environmental concerns, that a minimum flow of 12 cumecs
should be released from the KHEP.117
Next, the Court discussed the proper place of customary
international law in an analysis of minimum flow for the
KHEP. It recognized India’s right to priority to divert water for
the KHEP, which includes the right to operate the KHEP
effectively.118 Moreover, under the Treaty, the right to priority
could not be abrogated by customary international law.
Paragraph 29 of Annexure G provides that customary
international law can be used “wherever necessary” to interpret
or apply the Treaty, “but only to the extent necessary for that
purpose.”119 The Court distinguished the Iron Rhine Arbitration
because Paragraph 29 expressly limits the extent to which the
Court could apply other sources of law.120 In this case, the
Court limited its authority under customary international law to
extend only as far as “mitigating significant harm” to
Pakistan’s environment.121 The requirement of a minimum flow
is necessary to mitigate significant harm, but the Court would
not adopt a “precautionary approach,” play policymaker, or
allow “environmental considerations to override the balance of
other rights and obligations expressly identified in the
Treaty.”122 The Court concluded that the Treaty limited the
extent to which the Court could allow customary international
law to dictate India’s right to divert water once it had
established priority.
Through the examination of flow data, the Court found
that a minimum flow of 9 cumecs would “be sufficient to
maintain natural flows” during the dry season.123 The Court
laments that 9 cumecs may not be sufficient to effectively
protect the environment, but that it is the proper balance
between the rights outlined in the Treaty and obligations
required under customary international law.124 If the Parties are
not satisfied with the minimum flow determination, either Party
may seek review of the minimum flow in seven years.125
VI. CONCLUSIONS
The Indus Waters Kishenganga Arbitration was an
impressive undertaking by the Court, and ultimately did justice
to the Indus Waters Treaty. The Indus River System is massive,
and over time, the effects of this decision will be felt
throughout the region.
A. Release of a Minimum Flow Satisfies the Duty to
Mitigate Significant Harm to Downstream States
The Court adopted a rule that sets a baseline for future
environmental analysis. The rule that an upstream state must
state allowed the
“mitigate substantial harm” to a downstream
Court to justify the requirement of a minimum
flow. This rule
is narrower than the rule set forth
in
the
Trail Smelter
Arbitration and Principle 21, which require states to “ensure
to the
environment of
that activities … do not cause damage
126
the
Court adopts
the
other States.” Instead, the rule from
minimum level of environmental protection
in Iron
established
18
Rhine: mitigation of significant harm.127 The rule adopted by
the Court is effective in identifying the minimum but required
amount of environmental protection that is provided by
customary international law. States that plan to build
hydroelectric projects on international watercourses must
consider early on that it is likely that a minimum flow is
required by international law.
B. Recommendation to Improve Data Sharing
Although the Treaty requires the exchange of available
hydrological data, upon request by either Party, the Court chose
not to require, but rather, “commend,” the sharing of quality
assured data. Had the Court required the exchange of controlled
data it would likely have increased the level of scientific
discourse between the Parties and improved the coordinated
stewardship of their water resources. The two States have a
long history of conflict, and improving data exchange would
improve management of the resource, which in turn, would
reduce the likelihood of conflict between the Parties.
One reason for the Court’s approach may be that it did not
want to instruct the Indus Waters Commission on its
obligations under the Treaty, however, the benefits of improved
data exchange outweigh the minimal sacrifice of the
Commission’s autonomy with respect to this limited issue.
Certainly, the need for better quality science and an elevated
discourse about the affects of water management decisions on
the environment is a challenge faced around the world, and
future decisions for water use on the Indus River ought to
incorporate a preliminary exchange of quality assured data.
The Court also faced the challenge of setting an exact
amount of minimum flow with inadequate data to guide its
decision. It may be shown with more accurate data collection at
the Line of Control that the scientific basis for the decision was
inaccurate. However, by balancing the Treaty’s limits on the
rights provided therein along with the application of customary
international law, the Court not only delivered an equitable
legal analysis but set a solid foundation for the obligation to
release a minimum flow. Upstream states now have the
baseline of minimum flows to consider when planning
hydroelectric projects or other diversions, and assessing how to
mitigate substantial harm to downstream states. Moreover,
downstream states could assert a right to a minimum flow in
order to prevent a certain degree of environmental harm. The
Awards of the Kishenganga Arbitration are sturdy and
evenhanded extensions of the Indus Waters Treaty, and
clarified India’s and Pakistan’s obligations to their shared
watercourse.
Kristian Corby is an associate at King Williams & Gleason,
LLP in Sacramento, California and Water Law Fellow at the
University
of the Pacific, McGeorge School of Law. He can
be reached at [email protected].
***
Indus
Waters
Treaty
1960
Between
the Government of India,
the Government of Pakistan and the International Bank of
Reconstruction
and Development, 19 September 1960, 419
U.N.T.S.
126 (hereinafter Indus Waters Treaty).
1
2
Simla Agreement, 2 July 1972, Jammu & Kashmir (April 20,
2014), www.jammu-kashmir.com/ documents/simla.html
3
STEPHEN C. MCCAFFREY, THE LAW OF INTERNATIONAL
WATERCOURSES 289 (2007).
4
Id.
5
Id.
6
Id. at 42, para. 129.
7
In the Matter of the Indus Waters Kishenganga Arbitration
(Pakistan v. India), Partial Award 166, para. 442 (Perm. Ct.
Arb. Feb. 18, 2013) (available at http://www.pcacpa.org/showpage.asp?pag_id=1392)
(hereinafter
Partial
Award).
8
Id. at 2.
9
Id. at 201.
10
Id.
11
Id.
12
HAMID KHAN, CONSTITUTIONAL AND POLITICAL HISTORY OF
PAKISTAN 3-4, (2001).
13
Id.
14
Id.
15
Id. at 4, 43.
16
Id. at 34.
17
Id. at 43.
18
Id. at 44
19
See Map 1.
20
KHAN, supra note 12, at 44.
21
Id.
22
Id.
23
Id. at 45.
24
Id. at 44-45.
25
Id. at 45.
26
Professor Atamjit Singh Sardar, History of Punjab: Land of
the
Punjab,
Punjab
Online
(April
7,
2014),
http://www.punjabonline.com/servlet/library.history?Action=P
age&Param=2.
27
KHAN, supra note 12, at 45.
28
MCCAFFREY, supra note 2, at 289.
29
RICHARD BAXTER, THE LAW OF INTERNATIONAL DRAINAGE
BASINS, 452 (1967).
30
MCCAFFREY, supra note 3, at 289-90.
31
Id. at 290
32
David Ekbladh, ‘Mr. TVA’: Grass-Roots Development,
David Lilienthal, and the Rise and Fall of the Tennessee Valley
Authority as a symbol for U.S. Overseas Development, 19331973, Diplomatic History, Volume 26, Issue 3, 335-36 (2002).
33
Yale Law Review Company, Inc., Governmental Techniques
for the Conservation and Utilization of Water Resources: An
Analysis and Proposal, 56 Yale L.J. 276, 285-87 (1947).
34
Ekbladh, supra note 31, 336.
35
Id.
36
Partial Award at 44, para. 133.
37
Id. at para. 134.
38
Id. at 44, para. 135.
39
Id. at para 136.
40
Id.; See Map 1.
41
Partial Award at 45, para 137.
42
Indus Waters Treaty, Art. III(2), (2)(a-d).
43
Id. at Annexure D, Part 3, para. 15(iii).
44
Partial Award at 45, para 138.
19
45
84
46
85
Indus Waters Treaty, Art. VIII(4).
Id. at Art. VIII(1).
47
Id. at Art. VIII(1)(a-b).
48
49
Indus Waters Treaty, Annexure D, Part 1(2)(g), Part 3(15).
50
Id. at Annexure D, Part 3(15).
51
Partial Award at 50, para. 155; See Map 2.
52
Id.
53
Id. at 50, para. 155; 52, para. 157.
54
See Map 3.
55
56
57
Id. at 3, paras. 8-9.
58
Id. at para. 11.
59
Id. at 3-4, paras. 12-14.
60
Partial Award at 134.
61
Id. at para. 360.
62
Id. at 135, para. 361.
63
Id. at para. 362.
64
Id. at 137, para. 366.
65
Id. at 140, para. 376.
66
Id. at 141, para. 379.
67
Partial Award, 161, para. 435.
68
Id. at 163, para. 439.
69
Id.
70
Id. at 163, para. 440.
71
Id. at 166, para. 442.
72
Id. at 166-67, para. 442.
73
Id. at 168, para. 446.
74
Id. at 168, para. 446.
75
Id.
76
Id. at 168-69, para. 447.
77
The Trail Smelter Arbitration, 16 April 1938 and 11 March
1941, 13 R.I.A.A. 1905, at 1965 (hereinafter Trail Smelter
Arbitration); Stockholm Declaration of the United Nations
Conference on the Human Environment, 16 June 1972, UN
Doc. A/CONF. 48/14/Rev 1, 3 (hereinafter Stockholm
Declaration).
78
Case concerning the Gobčíkovo-Nagymaros Project
(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, p. 78.
79
Partial Award at 170, para. 451; Arbitration Regarding the
Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of
Belgium and the Kingdom of the Netherlands, Award, 24 May
2005, PCA Award Series (2007), para. 59 (hereinafter Iron
Rhine).
80
Id.
81
Partial Award, p. 171-72, paras. 453-54.
82
Id. at 171, para. 453.
83
Id. at 171-72, para. 454.
Id. at 172, para. 454.
Id. at para. 455.
86
Id. at para. 457.
87
In the Matter of the Indus Waters Kishenganga Arbitration
(Pakistan v. India), Final Award 32, para. 90 (Perm. Ct. Arb.
December 20, 2013) (available at http://www.pcacpa.org/showpage.asp?pag_id=1392)
(hereinafter
Final
Award).
88
Final Award at 32-33, para. 90; 37, para. 104.
89
Indus Waters Treaty, Art. VI, para. 1(a-e).
90
Id. at para. 2.
91
Final Award at 8, para. 23.
92
93
Id.
94
Id.
95
Indus Waters Treaty, Art. VI, Para. 2.
96
97
Id. at 33, para. 91.
98
Id.
99
100
101
Id. at 20-21, paras. 56-58; 102-103, para. 102.
102
Id. at 25-27, paras. 67-69.
103
Id.
104
105
106
Id. at 23-24, paras. 63-64.
107
Id. at 24-25, paras. 65-66.
108
Final Award at 24-25, paras. 65-66.
109
Id. at 22-23, paras. 60-61.
110
Id. at 35-36, para. 99.
111
Id. at 36, para. 100.
112
Id.
113
Id.
114
Id. at 37, para. 103.
115
Id.
116
Final Award at para. 103.
117
Id. at para. 104.
118
Id. at 38, para. 108.
119
Id. at 39, para. 112.
120
Id. at para. 111.
121
Id. at para. 112.
122
Id.
123
Id. at 40, para. 113.
124
125
Id. at 41, para. 119.
126
Trail Smelter Arbitration and Stockholm Declaration supra
note 77.
127
Iron Rhine supra note 79.
20
The Right to Water in the Case Law of the European
Court of Human Rights
CAROLINA DE MENDONÇA GUEIROS AND
DAVID N. CASSUTO
INTRODUCTION
Access to potable water is an essential human need. Although
international human rights instruments do not list a right to
water as a fundamental human right, a number of international
bodies have concluded that the right to water is an element
contained in other recognized human rights.1 In addition, the
European Court of Human Rights has interpreted several of the
civil and political rights protected by the European Convention
on Human Rights2 (“European Convention”), namely under
Article 8, to include a right to water access and to water
quality.3 However, the Court has interpreted that right very
narrowly and leaves significant room for State discretion.
Under Article 8(1) of the European Convention, “everyone
has the right to respect for his private and family life, his home
and his correspondence.”4 This article focuses on how the
European Court has construed Article 8 to include a limited
right to water. We first offer an overview of the Court’s
“traditional” interpretation of Article 8, followed by an analysis
of the manner in which the Court has expanded its
interpretation to include water quality concerns. The insights
provided by the Court could prove useful in non-European
countries that recognize similar domestic rights, as well as by
future applicants to the European Court looking to apply a
human rights framework to water pollution issues. However, a
true “right to water” remains unrecognized by the European
Court.
I.
OVERVIEW OF ARTICLE 8 OF THE EUROPEAN CONVENTION
The following overview of how the Court has applied
Article 8 of the European Convention showcases the
“traditional” concerns that are usually discussed under this
provision. Adding environmental and, more specifically, water
quality concerns to this list of issues has posed a challenge for
the Court and for applicants seeking to advance cases based on
these arguments.
As stated above, Article 8 protects four dimensions of an
individual’s autonomy: the right to respect for private life,
family life, home, and correspondence.5 The case law of the
European Court has identified the meaning of each of these
dimensions.
The Court has determined that “respect for private life”
applies
to a wide range of situations. Private life has been
linked to the idea of allowing an individual to determine
identity in cases involving the protection of a
personal
professional
reputation6 and sexual identity,7 for example.
Another meaning of the right to private life adopted by the
Court stipulates that individuals have the right not to suffer
interference with the way they choose to conduct their
undue
lives.
8 Undue interference can take various forms, such as the
unauthorized
taking of pictures of a minor,9 employers
unauthorized
engaging in excessive surveillance over the employees’
activities (e.g. DNA profiling of employees and camera
surveillance),10 and unjustified withholding of an individual’s
personal information by public authorities.11
In defining the scope of “family life,” the Court has not
limited Article 8’s ambit of protection solely to married
couples. Rather, it has extended protections to other de facto
relationships, depending on factors including “whether the
couple lives together, the length of their relationship and
whether they have demonstrated their commitment to each
other by having children or by any other means.”12 Examples
of relationships that have been found by the Court to consist of
family life are: children and grandparents;13 siblings;14 and
parents and children born outside of marriage.15
The definition of “home”, according to the Court, is the
place where an individual resides permanently or with which
he has sufficient and continuous links. This may include
holiday homes or second homes,16 and even business addresses
in some circumstances,17 “Respect for the home” and for
“correspondence” include a large set of situations, some of
which are the right to access and occupation of one’s own
home,18 the right of family members to succeed to a tenancy,19
protection against irregular seizure of documents in an
attorney’s office,20 and the prohibition of unlawful obtaining of
private communications by governments21 (understood as any
communications in writing or by telephone in most cases22).
The primary duty of States with respect to Article 8 is the
negative obligation to not interfere with an individual’s private
and family life, home and correspondence.23 Positive
obligations may arise in cases where the State is called upon to
actively protect the individual’s enjoyment of Article 8 rights,24
such as when the State must enact specific legislation to
guarantee the enjoyment of the rights.25 However, State
interference with Article 8 rights may be justified only if it is
within the margin of appreciation given to national authorities
when implementing the Convention. The margin of
appreciation is a doctrine used by the European Court of
Human Rights that recognizes that the European Convention is
subsidiary to domestic legislation and that the Convention may
be interpreted differently by the different State parties, which
have flexibility to implement the Convention according to their
own local circumstances.26 Permissible interferences within the
margin of appreciation will be: 1) provided by law; 2)
legitimate (in defense of a public interest, such as public health,
national security, etc.); and 3) necessary in a democratic
society.27
In analyzing cases of claimed violations of Article 8, the
European Court usually engages in an interpretive process that
can be summarized in a two-pronged test.
28 First, the Court will
determine whether the complaint lies
the scope of
within
Article 8(1), i.e. was there an interference with the applicant’s
private or family life, home or correspondence?
If such
interference did occur, the Court then determines
whether the
State action was permissible under the Convention,
Article
8(2)
and within the margin of appreciation.
The
margin of
appreciatio
n
appreciation analysis includes querying whether the
interference allowed by law was legitimate, and necessary in a
democratic society. If the answer to any of these requirements
is “no” then Article 8 has been violated.29
II. ARTICLE 8 AND THE RIGHT TO WATER The European Court has emphasized on many occasions
that an independent right to environmental protection does not
exist under the European Convention and that, consequently,
not every case of environmental pollution gives rise to a
violation of the rights protected under the Convention.30 In
cases of environmental pollution, the Court has similarly stated
that it will only find an infringement of the human rights
protected under the Convention when the pollution directly and
adversely affects the enjoyment of those rights to an extent and
intensity considered sufficient by the Court.31 Although this
approach does not present a radically different jurisprudence
from other Article 8 cases, it has been used by the Court to
avoid addressing cases of environmental pollution that it deems
less severe. The vast majority of the European Court’s cases
regarding Article 8 interpret these rights within the more
“traditional” framework of civil and political rights and, as
noted above, that framework does not generally include
concerns about water quality and access to water.
Consequently, it has proven difficult for the Court to expand its
Article 8 jurisprudence to include water pollution cases (or any
other environmental concerns).
III. DUBETSKA AND OTHERS V. UKRAINE: STATES’ OBLIGATION
NOT TO INTERFERE WITH ACCESS TO WATER
In Dubetska and Others v. Ukraine (2011),32 spoil heaps
resulting from the operation of a State-owned coal processing
facility were placed near the applicants’33 homes. Toxic
substances from the spoil heaps infiltrated the soil and
contaminated the ground and surface water, in addition to
causing other environmental impacts.34 As a result, the
applicants who used those contaminated streams for domestic
purposes suffered significant health problems and were
consequently deprived of drinking water.35
Applicants claimed that the state-owned company
responsible for the coal plant did not provide safe water to
them in a sufficient and reliable manner.36 They also alleged
that the water problems caused complications in family
relationships: the lack of clean water for washing caused
difficulties in relations between spouses, and younger family
members sought to move away in order to find better life
conditions for their growing children.37 In addition, the
applicants explained that their properties’ market values had
been adversely affected by the contamination, and that they
not be able to sell the properties without aid from the
would
State.38
The Court concluded that the evidence presented by the
applicants
was sufficient to establish that they had been
residing
for
more than twelve years, since the ratification of the
European Convention by the Ukraine,39 in an area unsuitable
for residential living due to water pollution and other
environmental
hazards.40 The environmental nuisance was so
severe
that the Court declared it an interference with the
applicants’ rights to private life, home and family life.41
21
The Court determined that the Ukraine did not achieve the
proper balance between the interests of the petitioners and
those of the community as a whole because it failed to either
resettle the applicants or find other appropriate solutions for the
situation the applicants had endured.42 In essence, Ukraine
exceeded the acceptable margin of appreciation by failing to
resettle the petitioners or address the environmental hazards
effectively.
One of the deciding factors in the case was that the
applicants were denied access to fresh water for drinking and
for domestic purposes. It can thus be inferred that an element of
the right to family and private life includes a State duty not to
interfere with the individual’s access to drinking and domestic
water. The decision also indicates that if the State does
interfere with that access, it must either resettle the affected
parties or otherwise address the environmental harm.43 In the
case of water pollution, addressing the environmental harm
might include remediation of the polluted water sources, or the
provision of a sufficient and consistent supply of water
necessary for drinking and for the personal use of the affected
people.
The underlying discussion about the margin of
appreciation afforded to the State in Dubetska indicates that the
State is not obligated to choose a particular option to address
the interference (remediation of the environmental harm, for
example). Instead, the State can choose which solution to adopt
in order to comply with Article 8. The unwillingness of the
Court to mandate remediation of water contamination and other
environmental pollution exemplifies the constrained approach
it takes to environmental cases as well as the wide margin of
appreciation granted to States.
Nonetheless, the Dubetska case is seminal in that it begins
to define certain boundaries to the margin of appreciation. The
case makes clear that under certain circumstances, the Court
considers that access to water is an element of Article 8 rights.
It further makes clear that the Convention requires that if States
interfere with such access, they must act to mitigate the
situation in some manner. Dubetska established a negative
obligation for States not to interfere with existing access to
water. The margin of appreciation with respect to guaranteeing
access to water may be wide, but the obligation to attend to the
situation in some way is an important boundary established by
the Court.
IV. TASKIN AND OTHERS V. TURKEY: STATES’ POSITIVE
OBLIGATION TO PROTECT ARTICLE 8 RIGHTS TRIGGERED BY
SUBSTANTIAL FUTURE HARM
In Taşkin and Others v. Turkey (2004)44 – another case
dealing with water pollution – the State granted permits to a
public company allowing the use of cyanide leaching in a gold
extraction process.45 The applicants noted the significant risk of
contamination that the extraction technique posed to the
two facts raised by
region’s groundwater.46 The Court found
environmental assessments conducted
in the domestic
proceedings to be very important: “the region’s
inhabitants use
the groundwater; in the event of seepage, it could become
in the area in
polluted by toxic waste,” and that “rainfall
is a common
question will result in flooding,” which
occurrence in the proposed tailing areas.
47 These
were48deemed
significant risks to human health and the environment.
After examining the facts, the Court concluded that Article
8 is implicated if there exists a high likelihood – as determined
by an environmental impact assessment – that pollution will
affect the applicants’ private and family lives. Even if current
levels of pollution do not seriously jeopardize the applicants’
health,49 the State’s positive obligation to protect individual
rights under the Convention would nevertheless be triggered.50
After concluding that there had been an interference with
the applicants’ enjoyment of their Article 8 rights, the Court
emphasized that its analysis of domestic environmental
decision-making processes under Article 8(2) included
substantive and procedural aspects.
First, the Court weighed the competing interests of the
applicants in enjoying their right to private and family life
against the public interest in having the gold mine and
concluded that granting the permit did not serve the public
interest, given the likelihood of future negative environmental
repercussions from the mining operation.51
Second, with regard to the procedural aspect of Article 8
obligations, the Court decided that Turkey had not fulfilled its
duties because it allowed the continued operation of the mine
through a decision of its Council of Ministers that was never
made public. This situation deprived the applicants of Article
8’s procedural guarantees52 – the right to participate in the
decision-making process and to be informed and possibly
challenge the authority’s final decision.53
A key point in the Court’s Taşkin decision was that a
substantial future risk of interference with the right to private,
family life, and home caused by the threat of severe
environmental conditions was enough to constitute an
interference with Article 8. There was no evidence of concrete
water pollution affecting the lives of the applicants at the time
of the complaint, but only an indication – according to
environmental assessments presented during the domestic
proceedings – that the use of cyanide in the gold mine
operation would cause harm to the applicants in the future.
That risk of future harm was itself sufficient to interfere with
the enjoyment of Article 8 rights.
V. CONCLUSION
Dubetska and Taşkin provide important insights regarding
the European Court’s view of how Article 8 can be employed
to address water pollution issues under the European
Convention. In Dubetska, the Court identified a right to be free
from interference with drinking and domestic water supplies,
and a negative obligation for the State not to interfere with this
right. The Court concluded that if such interference occurs, the
State must address it in some fashion. However, the Court was
not willing to mandate a particular solution, finding instead that
States have a wide margin of appreciation in deciding how to
environmental issues that affect human rights protected
handle
under the Convention.
The European Court’s approach represents a significant
limitation
for applicants looking to achieve water quality
protection
within
the European human rights system, because
applicants will not necessarily achieve an environmentally
preferable
option – such as the clean-up of water pollution. The
ultimate
decision on which solution to adopt – remediation of
the environmental harm, resettlement and/or monetary
compensation – is left to the State.
22
Taşkin presents a different avenue to address water quality
challenges under a human rights framework. The Court decided
that actual harm to the applicants caused by water pollution is
not required to constitute a violation of Article 8. A strong
indication that such harm will occur in the future, supported by
an environmental impact assessment, is enough to trigger a
positive obligation for the State to protect the individual’s
rights to private and family life, and home. In addition, the
Court identified a positive procedural obligation for States as
part of the environmental decision-making processes:
individuals specifically affected by the project in question have
the right to participate in the decision-making processes
conducted by domestic authorities.
These cases reveal that using a human rights framework to
address water pollution cases is possible but limited within the
European human rights system. Although the European Court
has identified positive and negative obligations for States under
Article 8 with respect to access to water and water quality,
addressing water pollution cases through Article 8 remains
problematic. The European Court has consistently granted
States a wide margin of appreciation and remains reluctant to
order actual pollution remediation or otherwise halt polluting
activities. It is ultimately left to States to choose an appropriate
solution to interference with the enjoyment of Article 8 rights.
Carolina de Mendonça Gueiros is an attorney at Silveira,
Athias, Soriano de Mello, Guimarães, Pinheiro & Scaff
Advogados. M.A. Columbia University, LL.M. Pace Law
School, LL.B. Universidade Federal do Pará.
David N. Cassuto is a Professor of Law at Pace Law School,
Director of the Brazil-American Institute for Law &
Environment,
Distinguished
Visiting
Professor
of
Environmental Law, Williams College, and Visiting
Professor, Federal University of Bahia (UFBA).
***
1
Committee on Economic, Social, and Cultural Rights,
General Comment No. 15, The Right to Water, U.N. Doc.
E/C.12/2002/11 (November 26, 2002); Council of Europe,
Committee of Ministers, Recommendation 14 (2001) of the
Committee of Ministers to member States on the European
Charter on Water Resources ¶ 5, 19; African Commission on
Human and Peoples’ Rights, Free Legal Assistance Group, et al
v. Zaire, Comm. No. 25/89, 47/90, 56/91,100/93 (1995).
2
Convention for the Protection of Human Rights and
Fundamental Freedoms, Nov. 4, 1950, Europ.T.S. No. 5; 213
U.N.T.S. 221.
3
The right to private life, family life, home and correspondence
(Article 8 of the European Convention on Human Rights) in
Case of Dubetska and Others v. Ukraine, ECHR (2011),
Application No 30499/03, Judgment (Merits and Just
Satisfaction), and Case of Taşkin and Others
v. Turkey, ECHR
(2004), Application No. 46117/99, Judgment
(Merits and Just
Satisfaction). The right to property (Article 1 of Protocol 1 to
the European Convention on Human Rights) in Case of Yldirir
v. Turkey, ECHR (2011), Application No 21482/03,
Judgment
(Just Satisfaction).
4
“1. Everyone has the right to respect
for
his
private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”
5
Ivana Roagna, Protecting the Right to Private and Family Life
Under the European Convention 11 (2012).
6
Case of Niemietz v. Germany, ECHR (1993), Application No.
13710/88, Judgment (Merits and Just Satisfaction).
7
Case of Christine Goodwin v. United Kingdom, ECHR
(2002), Application No. 28957/95, (Judgment Merits and Just
Satisfaction).
8
European Union Network of Independent Experts on
Fundamental Rights, Commentary of the Charter of
Fundamental Rights of the European Union 79 (2006).
9
Case of Reklos and Davourlis v. Greece, ECHR (2009),
Application No 1234/05, (Judgment Merits and Just
Satisfaction).
10
11
Case of Gaskin v. United Kingdom, ECHR (1989),
Satisfaction).
12
Case of X, Y, and Z v. the United Kingdom, ECHR (1997),
Application No. 21830/98, Judgment (Merits), ¶ 36.
13
Case of Marckx v. Belgium, ECHR (1979), Application No.
14
Case of Boughanemi v. France, ECHR (1996), Application
No. 22070/93, Judgment (Merits).
15
Case of Jolie and others v. Belgium, Eur. Comm. H.R.
(1986), Application No 11418/85, Decision.
16
Case of Demades v. Turkey, ECHR (2003), Application No
17
Case of Niemietz v. Germany, ECHR (1993), Application
No. 13710/88, Judgment (Merits and Just Satisfaction).
18
Case of Gillow v. United Kingdom, ECHR (1986),
Application No. 9063/80, Judgment (Merits).
19
Case of Karner v. Austria, ECHR (2003), Application No.
40016/98, Judgment Merits and Just Satisfaction).
20
Case of Niemietz v. Germany, ECHR (1992), Application
21
Case of A.B. v. the Netherlands, ECHR (2002), Application
22
23
Article 8(2).
24
Roagna, supra note 5 at 11.
25 European Union Network of Independent Experts on
Fundamental
Rights of the European Union 95 (2006).
26
The
margin of appreciation doctrine was first discussed by
the Court in Handyside v. the United Kingdom (1976):
“Consequently, Article 10 para. 2 (art. 10-2) leaves to the
Contracting
States a margin of appreciation. This margin is
both to the domestic legislator ("prescribed by law") and
given
to the
bodies, judicial amongst others, which are called upon to
23
interpret and apply the laws in force. (…) Nevertheless, Article
10 para. 2 (art. 10-2) does not give the Contracting States an
unlimited power of appreciation. The Court, which, with the
Commission, is responsible for ensuring the observance of
those States' engagements (Article 19) (art. 19), is empowered
to give the final ruling on whether a "restriction" or "penalty" is
reconcilable with freedom of expression as protected by Article
10 (art. 10). The domestic margin of appreciation thus goes
hand in hand with a European supervision. Such supervision
concerns both the aim of the measure challenged and its
"necessity"; it covers not only the basic legislation but also the
decision applying it, even one given by an independent court.”
Case of Handyside v. the United Kingdom, ECHR (1976),
Application No 5493/72, Judgment (Merits), ¶¶ 48-49.
27
Article 8(2).
28
Examples of the interpretive process the European Court
usually applies can be found in: Case of Gillow v. United
Kingdom, ECHR (1986), Application No. 9063/80, Judgment
(Merits), ¶¶ 43-58; Case of Niemietz v. Germany, ECHR
(1993), Application No. 13710/88, Judgment (Merits and Just
Satisfaction) ¶¶ 26-38; Case of Boughanemi v. France, ECHR
(1996), Application No. 22070/93, Judgment (Merits) ¶¶ 31-45.
29
Id.
30
Case of Ivan Atanasov v. Bulgaria, ECHR (2011),
Satisfaction), ¶ 66.
31
Id. at ¶ 66.
32
Case of Dubetska and Others v. Ukraine, ECHR (2011),
Satisfaction).
33
“Applicants” and “petitioners” are the terminology used by
the European Court to address the plaintiffs.
34
Id. at ¶ 15.
35
Id. at ¶ 25.
36
Id. at ¶¶ 26-27.
37
Id. at ¶ 29.
38
Id. at ¶ 30.
39
The violation of the applicants’ Article 8 rights began before
the Convention was ratified by Ukraine, but it continued for
more than twelve years after that date. Id. at ¶¶148-149.
40
Id. at ¶ 118.
41
Id. at ¶ 119.
42
Id. at ¶ 155.
43
Id. at ¶ 155.
44
Case of Taşkin and Others v. Turkey, ECHR (2004),
Application No. 46117/99, Judgment (Merits and Just
Satisfaction).
45
Id. at ¶¶ 17, 62, 71.
46
Id. at ¶ 23.
47
Id. at ¶ 27.
48
Id. at ¶ 26.
49
Id. at ¶ 113.
50
Id. at ¶ 113.
51
Id. at ¶ 117.
52
Id. at ¶ 125.
53
Id. at ¶ 119.
24
Where Two Rivers Meet: Realizing Indigenous Water
Rights Through the Human Right to Culture
CARINA ROSELLI
I.
INTRODUCTION
Ángela Poma Poma is a 64-year-old descendent of the
Aymara people, a 5,000-year-old indigenous community
residing in the Andean altiplano of Peru.7 Ángela and her
children own the Parco-Viluyo farm where they raise alpacas,
llamas, and other smaller animals as their only means of
subsistence.8 Their farm consists of 350 hectares (865 acres) of
wetlands and grass pastures fed by the Uchusuma River.9 This
land supports her farm and the farms of eight other families
who practice traditional agriculture.10
In the 1950s, Peru began diverting the Uchusuma River
away from Ángela’s indigenous land.11 The diversion deprived
Ángela’s community wetlands of the surface water needed to
sustain grazing pastures.12 The wetlands themselves survived
on groundwater alone until the 1970s when the government
drilled wells to draw the groundwater out of the land.13 The
drilling caused the community wetlands to gradually dry out
and considerably reduced the water supply to water collection
points for human and animal consumption.14 Eventually, the
lack of water made it impossible for Ángela’s indigenous
community to raise their llamas in accordance with traditional
Aymara agricultural customs and practices.15 By the 1980s,
Peru’s water diversion activities had desiccated 10,000 hectares
(24,710.5 acres) of indigenous Aymara pastureland, killing
thousands of livestock and collapsing the community’s only
means of subsistence.16 Ángela’s family fell into poverty and
their ancient cultural practices died alongside their llamas.
The International Covenant on Civil and Political Rights
(ICCPR) is an international human rights treaty that requires
states parties to “respect” and “ensure” the civil and political
rights of all individuals within the state’s territory and subject
to its jurisdiction.1 The ICCPR obliges its 168 state parties to
protect basic human rights like the right to life; gender equality;
freedom from torture, slavery, and arbitrary detention; freedom
of movement, religion, speech, assembly, and association; the
right to a fair trial; the right to an effective remedy; and
minority rights. Under certain circumstances, some provisions
of the ICCPR have the power to carve out environmental
rights. In particular, ICCPR article 27 prohibits states from
denying minority persons the right to enjoy their culture in a
community with other members of their group.2 Because
indigenous groups constitute a minority, and because
indigeneity often depends on access to natural resources,
communities whose culture is indivisible from water can apply
article 27 to progress the realization of their indigenous water
rights.
The United Nations Human Rights Committee, a body of
independent experts, monitors implementation of the Covenant
by reviewing state activities through mandatory reporting
procedures. The Committee also publishes nonbinding “general
comments” that clarify its interpretation of the rights protected
under the ICCPR. In addition to these duties, the Committee is
competent to examine interstate complaints and individual
complaints against states that have ratified ICCPR article 41
and Optional Protocol I (respectively) regarding alleged
violations of the Covenant. In states that have ratified Optional
Protocol I, individual “authors” from afflicted indigenous
groups (or their representatives) that have exhausted all
available domestic remedies can submit a “communication” to
the Committee alleging denial of their environmentally
dependent cultural rights.3 The Committee can consider the
author’s communication, and has the competency to publish
binding “views” and recommendations on the matter in
question.
In the first successful case linking water to cultural rights
under the ICCPR, the Committee expressed its views in Ángela
Poma Poma v. Peru (2009) that state-sanctioned water
withdrawal from indigenous land violates article 27 if the
consequent lack of water caused “a substantive negative
impact”
on the community’s enjoyment of their economic and
cultural rights.4 The Committee used a two-prong test to
determine
whether such a negative impact existed. First, the
Committee
considered whether the state afforded members of
the indigenous community the opportunity to “effectively”
participate
in the state’s decision-making process regarding
withdrawal.5 Second, the Committee considered whether
water
the indigenous community can continue to benefit from their
traditional economy.6
II.
ÁNGELA’S STORY
ÁNGELA POMA POMA V. PERU (2009)
In 2004, Ángela submitted a communication to the Human
Rights Committee alleging that Peru’s water diversion
activities violated several of her rights under the ICCPR, most
notably article 17.17 Under article 17, Ángela alleged that Peru
unlawfully interfered with her family’s life and activities by
diverting the water necessary for practicing Aymara customs,
social relations, and agricultural methods.18 She claimed that
the lack of water seriously interfered with her community’s
only means of subsistence and their desire to live on their
traditional lands, and effectively obliged them to “change their
way of family life” and “engage in an activity that is not their
own.”19 The Committee found that the facts supported
Ángela’s allegations, but determined that her complaint would
be more appropriately considered under article 27, protecting
the individual right to practice one’s culture in community with
other members of a group.20
III. APPLYING ICCPR ARTICLE 27 TO ÁNGELA
POMA POMA V.
PERU
overarching
The Committee determined that the
issue for
diversion
consideration was “whether the water
operations
which caused degradation of [Ángela’s]
land
violated her
rights
under article 27 of the Covenant.”21 To answer
this
question,
….
the Committee first noted its past views that article 27 protects
the rights of individuals to engage in economic and social
activities endemic to the culture of the community to which
they belong.22 The Committee added that its General Comment
No. 23 on the rights of minorities under article 27 recognizes
that one’s culture might consist of a lifestyle that is closely
associated with territory and reliance on natural resources, and
that this is particularly true for indigenous peoples.23 The
Committee found it undisputed that Ángela was a member of
an indigenous ethnic minority whose culture included an
ancestral tradition of raising llamas as an essential element of
the Aymara culture.24
At the same time, the Committee recognized that Peru
could legitimately take steps to promote its economic
development.25 General Comment No. 23 points out that “[t]he
enjoyment of the rights to which article 27 relates does not
prejudice the sovereignty and territorial integrity of a State
party.”26 A state’s economic development, however, may not
undermine the rights protected by article 27.27 The Committee
explained that impacts of state action could not amount to
denying a community its right to enjoy its own culture, but
actions causing only a limited impact on the lifestyle and
livelihood of persons within a community would not
necessarily amount to denying protected rights under article
27.28
To determine the nature of the impact, the Committee
refined the issue in Poma Poma to whether Peru’s water
diversion activities had “as far as llama-raising is concerned . . .
a substantive negative impact on the author’s enjoyment of her
right to enjoy the cultural life of the community to which she
belongs” and applied a two-prong test.29 First, the Committee
expressed its view that the permissibility of state action
substantially compromising or interfering with the culturally
significant economic activities of an indigenous community
depends on whether the state afforded members of that
community the opportunity to effectively participate in the
decision-making process regarding those actions.30 The
Committee observed that Peru did not consult with Ángela or
her community concerning the construction of wells affecting
her property, and no member of the community had given their
free, prior, and informed consent to Peru’s water withdrawals.31
Second, the Committee expressed that permissibility of state
action affecting indigenous communities depended on whether
members can continue to benefit from their traditional
economy.32 Here the Committee acknowledged that Peru’s
water withdrawal activities degraded 10,000 hectares (24,710.5
acres) of Aymara pastureland, killing thousands of livestock.33
Ángela was consequently unable to continue benefiting from
her traditional economic activity.34 Therefore, the Committee
expressed its view that Peru’s water withdrawal activities
“substantively compromised” Ángela’s ability to enjoy her
within the indigenous community to which she belongs,
culture
in violation of article 27.35
finding a violation of the ICCPR under article 27, the
After
Committee
determined that Peru had also denied Ángela her
right
to
an
effective
remedy for the state’s impermissible water
withdrawal, in violation of article 2(3)(a). The Committee
requested
that Peru report on the effective remedy and
reparations
it will now provide to Ángela in light of the harm
she sustained, and requested that Peru take necessary measures
to prevent similar future violations of the Covenant.36
Frtrtemo.
.
25
to prevent similar future violations of the Covenant.36
Furthermore, the Committee requested that Peru publish the
Committee’s views and report to it the measures taken to give
effect to those views within 180 days.37
IV. DIRECT APPLICATION OF POMA POMA TO THE ATACAMEÑO
COMMUNITY OF CHIU CHIU, CHILE LUSION
There are no known communications regarding
infringement of water-dependent cultural rights currently under
review by the Human Rights Committee. Still, other indigenous
people could benefit directly from the precedent established in
Poma Poma if their facts are analogous and their state has
ratified or acceded to the ICCPR and Optional Protocol I
recognizing the competency of the Committee to receive and
consider individual complaints. In such cases, indigenous
community members can submit a communication to the
Committee alleging a violation of their human right to enjoy
their culture together with other members of their group under
article 27 of the ICCPR.
For example, Chile has ratified the ICCPR and acceded to
Optional Protocol I.38 Like Ángela in Poma Poma, the
indigenous Atacameño community in Chiu Chiu, Chile also
descends from the ancient Aymara people. Their indigenous
culture has grown out of 10,000 years of history in the Atacama
Desert, one of the driest places on earth. Like Ángela’s
community, the indigenous Atacameño subsist on agriculture,
raising llamas and cultivating carrots. The Atacameño depend
on the Loa River to source the high volume of water associated
with their traditionally sustainable agriculture practices. But,
the water intensive needs and extraction activities of Codelco’s
nearby Chuquicamata copper mine, owned by the National
Copper Corporation of Chile (a state-owned entity), have
contaminated and significantly reduced water flow in the Loa
River. Reduced flow (and arsenic contamination) has
significantly decreased the Atacameño community’s
agricultural production and threatens the survival of their
cultural identity. Consequently, many Atacameño people have
abandoned their traditional sources of income and succumbed
to poverty.
Although no one from the Atacameño community has
submitted a communication to the Human Rights Committee,
they could, as long as the particular issue complained of is not
under examination by another procedure of international
investigation or settlement, and the author has exhausted all
available domestic remedies. Because Chile is a state party to
Optional Protocol I, the Committee can review individual
complaints submitted by members of the Atacameño
community (or their representatives), and make binding views
and recommendations regarding Chile’s water extraction
activities. Given the factual similarities between Ángela’s story
and the afflicted Atacameño community, the Committee could
directly apply the precedence established in Poma Poma to
determine whether Chile’s mining operations
have caused a
“substantive negative impact” on an Atacameño
individual’s
ability to enjoy their water-based cultural
life
in
the
community
to which they belong, in violation of article 27.
complaint, the
In reviewing a (hypothetical) Atacameño
that the individual
was
Committee must first find it undisputed
a member of an ethnic minority and that
form of their
particular
subsistence
agriculture was an essential element of their
indigenous culture. Given the Atacameño community’s long
history of raising llamas and cultivating carrots, it is likely the
Committee would have no difficulty recognizing the
individual’s agricultural traditions as a form of subsistence and
an ancestral tradition.
Recognizing that Chile can legitimately take steps to
promote its economic development, the Committee would next
attempt to balance the individual’s cultural rights enumerated
under article 27 against Chile’s sovereign right to economic
development. In Poma Poma, the Committee applied a twoprong test. Using that precedence, the acceptability of measures
interfering with the culturally significant economic activities of
a minority group depends on (1) whether its members have had
the opportunity to participate in the decision-making process
underlying those measures, and (2) whether its members will
continue to benefit from their traditional economy.39
First, in Poma Poma, the Committee emphasized that
participation in decision-making must be effective – requiring
the free, prior and informed consent of community members –
but shed little light on the Committee’s process for determining
whether such participation had occurred (in Poma Poma, the
Committee simply stated that it observed no consultation had
occurred).40 If the Committee were reviewing an Atacameño
communication, perhaps it might assess participation by
considering Chile’s 2009 Universal Periodic Review (UPR)
and the recent shadow reports submitted through the United
Nations Office of the High Commissioner for Human Rights
(OHCHR) for Chile’s 2014 UPR, held January 27 to February
7 of this year.
During the interactive dialogue of Chile’s 2009 UPR, the
Chilean delegation indicated that there was text under review to
recognize in the country’s fundamental charter the
multicultural nature of Chilean society and the collective and
individual rights of indigenous peoples.41 Chile claimed that
this text would specifically address protection of indigenous
land and water resources, minority participation in decisionmaking processes and the promotion, of indigenous cultures
and traditions.42 Chile emphasized, “this important step is the
result of a wide-ranging process of national consultation with
indigenous peoples.”43 Still, the 2009 UPR Working Group
observed that Chile’s current consultation practices were
insufficient and provided six paragraphs of recommendations
for improved indigenous inclusion. Specifically, the Working
Group asked Chile to “[i]mprove effective consultation with
indigenous communities[,] . . . systematically consult with
indigenous peoples before granting licenses for economic
exploitation[,] . . . and strengthen efforts to find a solution that
respects the land rights of indigenous groups and ensures legal
protection of their human rights.”44 The Working Group’s
recommendations indicate a history of failure to include
minority
indigenous community members in Chile’s decision making processes regarding the natural resources upon which
those communities depend.
More recently, in preparation for Chile’s 2014 UPR, the
OHCHR
submitted a Compilation report of its views and
relevant
information gleaned from treaty bodies, special
procedures,
the Chilean government, and other United Nations
documents. This report included comments from the Special
Rapporteur
on the rights of indigenous peoples noting that “in
the period 2009–2012, the State had made various efforts to
pass legislation on indigenous consultation, although to date it
26
had not been possible to establish a mechanism.”45 The
OHCHR’s Summary report of stakeholder submissions to the
2014 UPR also contained statements emphasizing that “[t]he
lack of legal provisions governing the right of consultation
does not relieve the State of its obligation to engage in prior
consultations.”46 Notably, a shadow report jointly submitted by
Comunidad Indígena Atacameña de Taira and Comunidad
Indígena Atacameña (“Indigenous Community Atacameña”)
San Francisco de Chiu Chiu, Calama, Chile asserted that “large
scale public and private-sector copper mining operators . . . are
ignoring indigenous peoples’ reports of negative consequences
for their health and their cultural heritage.”47 Taken together,
the recommendations of the 2009 UPR Working Group and the
2014 UPR reports of the OHCHR could demonstrate that,
although Chile claims to include indigenous community
members in its natural resource-related decision-making, their
alleged measures of indigenous participation have not been
“effective.”
To meet the second prong of Poma Poma’s two-prong test,
individuals from the indigenous Atacameño community in
Chiu Chiu, Chile must show that Chile’s Codelco copper
mining activities have forced them to discontinue benefiting
from their traditional economy. This should not be difficult to
demonstrate because, like Ángela’s community, the indigenous
Atacameño subsisted on traditional agricultural methods that
are now unsustainable because of Codelco’s water extraction
activities on the Loa River.48 The lack of water has forced
community members to abandon their Aymara agricultural
customs and engage in nontraditional economic activities,
while others have succumbed to poverty. In 2009, an
Atacameño community leader said, “[w]ithout the river, there
is no life,” and Atacameño people fear that the dwindling Loa
River will make it impossible for them to pass their traditional
agricultural practices down to their next generation, thereby
ending the line of Atacameño cultural identity.49
Under these circumstances, the Committee might express
its view that (1) Chile deliberately or effectively excluded
community members from the decision-making process
regarding state-sponsored mining operations affecting their
indigenous land and water rights, and (2) the consequent lack
of usable water now prevents the individual from benefiting
from their traditional economy. Taken together, Chile’s actions
would be deemed to have “substantively compromised” the
individual’s ability to enjoy their culture together with other
members of their group, in violation of article 27. Finding of
such a violation could result in a request for remedy or
reparations commensurate with the harm sustained, including
greater access to usable water sources. Therefore, a
complaining individual from the Atacameño community of
Chiu Chiu, Chile could potentially realize their indigenous
water rights by submitting a communication to the Human
Rights Committee alleging a violation of their human right to
culture under the ICCPR.
V. INDIRECT APPLICATION OF POMA POMA TO THE MA’DAN
COMMUNITY OF IRAQ’S SOUTHERN MARSHES
In states that have not ratified or acceded
to Optional
Protocol I, recognizing the competency
of
the
Committee
to
receive and consider individual complaints, indigenous
relies upon
community members whose culture substantially
access to water could still benefit indirectly from the precedent
established
in Poma Poma. If their facts are analogous and
their state is scheduled to come before the United Nations
UPR, indigenous communities and supporting NGOs can
submit shadow reports to the OHCHR demonstrating a
violation of article 27 of the ICCPR and citing the Committee’s
views in Poma Poma for inclusion in their Summary report of
stakeholder submissions.50 Because the UPR is a powerful tool
for compelling national and international accountability and
progressing the realization of human rights, indigenous groups
and NGOs could analogize Ángela’s story and the Committee’s
views in Poma Poma as a foundation for calling upon member
states to remedy infringement of indigenous water rights.51
For example, Iraq ratified the ICCPR in 1971, but has not
yet acceded to Optional Protocol I.52 Iraq’s next UPR is
scheduled for October 20-31, 2014.53 In southern Iraq, the
indigenous Ma’dan (Marsh Arab) community descends from
ancient Sumerians and Babylonians. Their 5,000-year-old
culture subsists entirely on a water-based system of cultivated
wetlands and traditional agricultural practices. Water buffalos
are the keystone of Marsh Arab culture, providing food,
cooking energy, labor, and crop fertilizer for other agricultural
activities. During the 1980s, as part of an agricultural
marshland reclamation program, and the early 1990s, as part of
a state-sponsored ethnic displacement program, Saddam
Hussein’s Baathist regime systematically drained and destroyed
the Marsh Arabs’ indigenous wetlands.54 These activities
effectively decimated the Marsh Arabs’ traditional, waterbased agricultural practices, forcing the displacement of nearly
300,000 Marsh Arabs into Iraq’s urban areas and refugee
camps in neighboring states.
Although Iraq has ratified several relevant international
human rights treaties, the government has historically opposed
ratification of human rights treaty-based complaint procedures.
During its 2006 candidacy before the U.N. Human Rights
Council, however, the newly formed Iraqi government pledged
that “[t]he Iraqi Council of Representatives put within its first
priorities the consideration of ratifying all Optional Protocols
of the Human Rights Instruments,” including Optional Protocol
I.55 The new regime also pledged that it would “exert its utmost
efforts to guarantee the civil and political, social, economic and
cultural rights for Iraqi people, including equality before the
law without discrimination on any basis.”56 Given these
pronouncements, indigenous groups and NGOs should
advocate for Iraq’s ratification of Optional Protocol I as a
demonstration of the new regime’s commitment to the
progressive realization of human rights.
In the meantime, the Marsh Arabs and supporting NGOs
could submit shadow reports to the OHCHR for submission
within its Summary report. By taking action through the UPR
process, these groups would empower themselves by educating
and engaging with the international community about the water
and cultural rights infringements they face. This form of
participation will promote a rigorous review of Iraq’s current
activities both afflicting and supporting the Marsh Arabs’
water-based cultural rights.57 Furthermore, when reporting to
the OHCHR, the Marsh Arabs can draft and submit their own
recommendations
for remedy based on the needs and
experiences
of
their
own indigenous community. These reports
27
can lead to a substantive dialogue between the Marsh Arabs,
Iraq’s leadership, and the United Nations Human Rights
Council that will facilitate and ensure Iraq’s support of the
Marsh Arabs’ cultural rights.
Because the UPR aims to support the views of all human
rights treaty bodies including the Committee, the Marsh Arabs
and supporting NGOs should include Ángela’s story and the
Committee’s views in Poma Poma in their shadow reports as a
foundation for calling upon Iraq to remedy infringement of the
Marsh Arabs’ indigenous water rights. For the purposes of
illustration, shadow reports should demonstrate Iraq’s violation
of article 27 by theoretically applying Poma Poma’s two-prong
test.
First, as in Poma Poma, the violent acts of Iraq’s previous
regime did not provide Marsh Arab community members the
opportunity to participate in the decision-making process
regarding water management within their lands; nor did the
Marsh Arabs give their free, prior, and informed consent to
forceful displacement. Second, as Ángela raised llamas the
Marsh Arabs raised water buffalo as their primary means of
subsistence agriculture and an ancestral tradition dating back
more than 5,000 years. Iraq’s water diversion and marsh
drainage activities desiccated the land and prevented the Marsh
Arabs from benefiting from their traditional agricultural
practices. In 1994, the U.N. Secretary-General described the
impact of Iraq’s drainage operations on the lives of the Marsh
Arabs:
The sinking water level makes survival in the
marshes more and more difficult, almost
impossible. Because of the loss of water, the
Marsh Arabs can basically no longer use
their traditional boats. As the soils have dried
out, the reed beds have died, thus depriving
the tribespeople of their main material for
building shelters and feeding their buffalo
and cattle. . . . In addition to being deprived
of food, construction materials, and means of
transportation, there is almost no drinkable
water left in any part of the marshes; in areas
where there was still some water left, it had
become salty or toxic owing to the fact that it
had become stagnant.58
In 1995, Marsh Arabs reported that “fishing, buffaloherding and cultivating crops such as date palms, vegetables
and reeds” was no longer possible and that “[t]he increased
difficulty in finding drinking water has also made it impossible
to live in their areas of origin.”59
Therefore, the water diversion activities of Iraq’s previous
regime had a “substantive negative impact” on the Marsh
Arabs’ enjoyment of their cultural life; a violation of ICCPR
article 27, for which Iraq’s new regime remains accountable.
Many organizations have worked tirelessly to facilitate
restoration of Iraq’s southern marshes since the fall of the
Baathist regime in 2003, but competition for resources and
poor water management strategies continue
to negatively
impact the Marsh Arab community’s ability
to
benefit from
their traditional economy and enjoy their own culture with
other members of their group. Although this indirect
application of the precedence established in Poma Poma cannot
necessarily
provide the Marsh Arabs with remedy or
reparations for Iraq’s violation, presenting it to the UPR can
bring their ongoing plight back to the world’s stage,
accompanied by the Human Rights Committee’s declaration
that state-sponsored infringement of indigenous water rights is
impermissible under international law.
Perhaps such
internationalization of the sometimes-indivisible connection
between water and culture as a human right can further
progress the Marsh Arabs’ realization of their indigenous water
rights.
VI. CONCLUSION
The Committee’s views in Poma Poma establish that the
human right to culture enumerated under article 27 of the
ICCPR can provide for the realization of indigenous water
rights. Never before has a case successfully linked water to
cultural rights under the ICCPR. The Committee’s views in
Poma Poma could mark a new era of greater recognition for
the interdependence of cultural rights and natural resources,
and potentially provides a mechanism to achieve indigenous
water rights withheld or usurped by state actors. As
demonstrated by theoretically applying Poma Poma to the
Atacameño community of Chiu Chiu, Chile and the Ma’dan
community of Iraq’s southern marshes, affected individuals (or
their representatives) could apply this mechanism, either
directly or indirectly, to progress the realization of their
indigenous water rights through the human right to culture.
Carina Roselli is a recent graduate of Vermont Law School
and the Yale School of Forestry and Environmental Studies.
She can be reached at [email protected].
***
1
ICCPR, art. 2(1), entered into force 23 March 1976.
ICCPR, art. 27 “In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess
and practise their own religion, or to use their own language.”
3
The Optional Protocol also requires that the alleged violation
is not under consideration by another procedure of international
investigation or settlement. In Ángela Poma Poma v. Peru
(2009) at ¶ 6.2, the Committee pointed out that the Human
Rights Council’s confidential complaint procedure does not
constitute a procedure of international investigation or
settlement within the meaning of Optional Protocol I.
4
Human Rights Committee, Communication: Ángela Poma
Poma v. Peru, ¶ 7.5, U.N. Doc. CCPR/C/95/D/1457/2006 (24
April 2009).
5
Id.
at ¶ 7.6. “Effective” participation requires more than mere
consultation. The Committee requires evidence of free, prior
and informed consent of the members of the community.
6
Id. 7 Id. at ¶¶ 1, 2.1, 2.2.
8
Id.
at ¶ 2.1.
9
Id.
at ¶ 2.1.
10 Id.
11 Id. at ¶ 2.2.
2
28
Id.
13
Id.
14
Id. at ¶ 2.2.
15
Id.
16
Id. at ¶¶ 2.3, 3.1.
17
Ángela alleged that Peru’s water diversion activities violated
her rights under article 1(2) because Peru’s groundwater
diversion degraded her community’s farmland to the extent of
destroying their only means of subsistence, article 2(3)(a)
because she was deprived her right to an effective remedy,
article 14(1) because government authorities discriminated
against her community as indigenous people when they ignored
their arguments against Peru’s water diversion activities, and
article 17 because Peru’s actions interfered with her family’s
life and activities.
18
Id. at ¶ 3.3.
19
Id. As far as Ángela’s complaint alleged violations against
her community as a whole, the Committee determined these
issues were inadmissible because she cannot submit a
communication through Optional Protocol I’s individual
complaint procedure to assert a violation of her rights as “a
people.” See ¶ 6.3.
20
Ángela Poma Poma v. Peru at ¶¶ 6.3, 6.4. The Committee
found Ángela’s claims under articles 1(2) and 14(1)
inadmissible due to the nature of the individual complaint
procedure and the facts presented (respectively).
21
Id. at ¶ 7.1.
22
Id. at ¶ 7.3 (referring to Lubicon Lake Band v. Canada
(1990) and Länsman v. Finland (1994 and 2005).
23
Id. at ¶ 7.2 (referring to Human Rights Committee, General
Comment No. 23: the rights of minorities (Article 27), ¶¶ 3(2),
7, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (4 August 1994)).
24
Poma Poma v. Peru, at ¶ 7.3.
25
Id. at ¶ 7.4.
26
General Comment No. 23, at ¶ 3.2.
27
28
Id.
29
Id. at ¶ 7.5.
30
Id. at ¶ 7.6.
31
Id. at ¶ 7.7. In General Comment No. 23, the Committee
observed that, in order for indigenous communities to realize
their cultural rights, states may need to institute “positive legal
measures of protection” and make a special effort to include
such communities in decisions that affect them. See General
Comment No. 23, at ¶¶ 3(2), 7.
32
33
Id. at ¶ 7.5.
34
Id, at ¶ 7.7.
35
Id.
36
Id. at ¶ 9.
37
Id. at ¶ 10.
38
Chile ratified the ICCPR on 10 February 1972 (entered into
force 23 March 1976) and acceded to Optional Protocol I on 27
May 1992 (entered into force 27 May 1992). Chile’s only
declarations to either instrument have no bearing on the water
rights infringements affecting the Atacameño community.
39
Ángela Poma Poma v. Peru, at ¶ 7.6.
40
Id.
41
Human Rights Council, Report of the
Group on the
Working
Universal Periodic Review: Chile, ¶ 45, U.N. Doc.
A/HRC/12/10 (4 June 2009).
12
29
42
Id.
52
44
Id. at ¶ 96(67).
43 Id.
45 Human Rights Council, Compilation prepared by the Office
of the United Nations High Commissioner for Human Rights in
accordance with paragraph 15 (b) of the annex to Human
Rights Council resolution 5/1 and paragraph 5 of the annex to
Council resolution 16/21: Chile, ¶¶ 69-70, U.N. Doc.
A/HRC/WG.6/18/CHL/2 (7 November 2013).
46
Human Rights Council, Summary prepared by the Office of
the United Nations High Commissioner for Human Rights in
accordance with paragraph 15 (b) of the annex to Human
Rights Council resolution 5/1 and paragraph 5 of the annex to
Council resolution 16/21: Chile, ¶ 13, U.N. Doc.
A/HRC/WG.6/18/CHL/3 (7 November 2013).
47
Id. at ¶ 79.
48
Francisco Molina Camacho, Competing rationalities in water
conflict: Mining and the indigenous community in Chiu Chiu,
El Loa Province, northern Chile, 33 SINGAPORE JOURNAL OF
TROPICAL GEOGRAPHY 93, 100-02 (March 2012). Indigenous
community members are quoted as saying, “I think that [only]
3 per cent of Chiu Chiu’s population does not live from
agriculture” and “[o]ur [agriculture] production has been
severely affected.”
49
Id. at 100-01.
50
See above reference to the shadow report jointly submitted
by Comunidad Indígena Atacameña de Taira and Comunidad
Indígena Atacameña San Francisco de Chiu Chiu, Calama,
Chile.
51
See Joshua Cooper, Universal Periodic Review: A Potent
Process for the Realization of Human Rights in Indigenous
Homelands, CULTURAL SURVIVAL, (21 May 2014),
http://www.culturalsurvival.org/publications/cultural-survivalquarterly/universal-periodic-review-potent-process-realizationhuman#sthash.xviP8bPJ.dpuf.
Iraq ratified the ICCPR on 25 January 1971 (entered into
force 23 March 1976).
53
At the time of publication, the deadline for stakeholder
submissions for Iraq’s next UPR had passed, but the analysis is
germane and indigenous groups/NGOs can apply this theory to
any state that has not yet acceded to Optional Protocol I.
54
Under international law, the new Iraqi regime remains
accountable for the human rights violations carried out by
Saddam Hussein’s Baathist regime.
55
Pledges and commitments undertaken by Iraq before the
Human Rights Council, as contained in the letter sent by the
Permanent Mission of Iraq to the President of the U.N. General
Assembly ¶ 24 (28 April 2006) available at
http://www.un.org/ga/60/elect/hrc/. See also Human Rights
Council, Summary record prepared by the OHCRC, Universal
Periodic Review, Iraq, ¶ 58, U.N. Doc. A/HRC/WG.6/7/IRQ/2
(1 December 2009).
56
Human Rights Council, Summary record prepared by the
OHCRC, Universal Periodic Review, Iraq, ¶ 58, U.N. Doc.
A/HRC/WG.6/7/IRQ/2 (1 December 2009). See also Pledges
and commitments undertaken by Iraq before the Human Rights
Council, as contained in the letter sent by the Permanent
Mission of Iraq to the United Nations addressed to the
President of the General Assembly ¶¶ 18, 22, 23 (28 April
2006) available at http://www.un.org/ga/ 60/elect/hrc/.
57
In July 2013, Iraq named a portion of its southern marshes as
the state’s first national park, but whether this proclamation
will ultimately protect the Marsh Arabs’ water-based cultural
rights remains to be seen.
58
U.N. Secretary General, General Assembly Note by the
Secretary-General, ¶ 37, U.N. Doc. A/49/651 (8 November
1994).
59
Max van der Stoel, Report on the situation of human rights
in Iraq, ¶ 50, U.N. Doc. E/CN.4/1995/56 (15 February 1995).
30
NOTES & ACKNOWLEDGEMENTS
The International Environmental Law Committee (IELC) of the ABA's Section of International Law
(SIL) serves as a forum for the community of private practice, in-house, non-profit, academic and
government lawyers practicing or interested in environmental law in an international dimension. It also
serves as a resource for the exploration of developments in international environmental law and their
implications for the practice of law, diplomacy, scholarship, and legal education. We coordinate with other
Section committees to explore the relationship between international environmental law and other legal
specialties such as human rights or international economic law, as well as relevant committees in other ABA
Sections, particularly the International Environmental Law Committee of the Section of Environment,
Energy & Resources (SEER).
The IELC will present two programs at the Fall 2014 Section Meeting in Buenos Aires. These are the
Uruguay-Argentina Paper Mill Dispute: A River Runs Through It and We Can’t Stop the Fire!: Impact of
Environmental and Social Aspects on Current Investment and Financing Opportunities.
Currently, we are soliciting articles for the Spring 2015 Edition of this newsletter, which will be a
joint collaboration of the IELC, SIL Europe Committee, and SEER International Environmental Resources
Law Committee. The theme of this edition is Climate Change and Water Law. We welcome your
submissions! For a copy of the Call for Articles or to submit a proposal, please contact Fatima Ahmad
([email protected]).
We invite you to share your enthusiasm for this exciting area of law and policy by participating in the
Committee and its activities, including program events, year-end review, and newsletter. Please join us!
For more information, questions, suggestions, or to get more involved with the IELC, please contact
2014-15 Committee Co-Chairs, Kim Smaczniak ([email protected]) and Renee Martin-Nagle
([email protected]).
For more information or to get involved with SEER International Environmental Resources Law
Committee
(IERLC),
please
contact
2014-15
Committee
Co-Chairs,
Andrew
Schatz
([email protected]) and R. Juge Gregg ([email protected]).
*The views expressed in this newsletter are those of the authors and do not represent the policies of the
American Bar Association, Section of International Law, Section of Environment, Energy, and Resources,
IELC, IERLC, or employers of the authors.
Printed copies of this edition are courtesy of Brons & Salas
Abogados.
Brons & Salas Abogados
Maipù 1210 5ºPiso (C1006ACT)
Buenos Aires
Argentina

Water - American Bar Association

Transcription

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