International Water Cooperation in the 21st Century: Recent Developments in the Law of International Watercourses

• DOI: http://doi.org/10.1111/reel.12064
• Published date: 01 April 2014
• Date: 01 April 2014
• Author: Stephen C. McCaffrey

International Water Cooperation in the 21st

Century: Recent Developments in the Law of

International Watercourses

Stephen C. McCaffrey

This article surveys selected recent developments in

the field of the law of international watercourses. One

of the most significant developments concerns the

Partial Award rendered by the Court of Arbitration in

the Indus Waters Kishenganga Arbitration between

Pakistan and India. While the questions presented to

the Court concerned whether a dam being constructed

by India was consistent with the 1960 Indus Waters

Treaty, the Court interpreted the Treaty to find that

India had environmental obligations regarding the

operation of the dam. This award could well influence

the positions of other governments as well as disputes

between them. Another development of interest con-

cerns the human right to water and its implementa-

tion. Perhaps paradoxically in view of their greater

economic strength, opposition to the right has come

most notably from developed countries. A third devel-

opment concerns the law of transboundary aquifers.

The draft articles on this subject prepared by the Inter-

national Law Commission give prominence to the ‘sov-

ereignty of aquifer States’ and overlap with the 1997

Watercourses Convention. They would thus require

significant modification if the negotiation of a treaty

were to be based upon them. Finally, two treaties on

international watercourses are now open to all States

in the world: the 1992 UNECE Water Convention and

the 1997 UN International Watercourses Convention.

While taking different approaches, these treaties are in

fact mutually reinforcing. The growing disposition of

States to govern their freshwater relations according

to law shows that the International Year of Water

Cooperation proclaimed by the UN General Assembly

is not just a hollow slogan.

INTRODUCTION

On 20 December 2010, the United Nations General

Assembly (UNGA) adopted Resolution 65/154 declar-

ing 2013 the International Year of Water Cooperation.1

The Assembly had previously, in 2003, proclaimed

2005–2015 to be the International Decade for Action,

‘Water for Life’.2This is recognition by the international

community of the importance of fresh water to human

life and sustainable development, and to the essential

role of cooperation in the sharing of this precious

resource.3

The declaration of an International Year of Water Coop-

eration is also timely in view of long-predicted intensi-

fication of competition for shared water resources,4

which is increasingly leading to disputes between

States. The fact that some of these disputes are brought

before international tribunals for resolution, and at an

increased pace, should be viewed as a sign of coopera-

tion in the impartial resolution of such issues according

to law. Other questions are resolved through negotia-

tion or other bilateral means, or simply continue to

fester. Pakistan and India brought their dispute regard-

ing India’s hydroelectric project on a sub-tributary of

the Indus River to arbitration. As will be discussed in

the first part below, the tribunal issued a Partial Award

in February 2013, but deferred its Final Award pending

receipt from the parties of information that would allow

it to set a minimum flow to be released through India’s

dam.

Another consequence of the fact that Earth’s human

population continues to grow while the quantity of

freshwater remains the same, placing greater demands

on finite freshwater supplies, is the growing recognition

on the part of the international community that its

1International Year of Water Cooperation, 2013 (UNGA Resolution

A/RES/65/154, 20 December 2010). The f‌irst paragraph of the reso-

lution’s preamble recalls that the General Assembly had adopted a

number of previous related resolutions: ‘[I]ts resolution 47/193 of 22

December 1992 on the observance of World Day for Water, its

resolution 55/196 of 20 December 2000, by which it proclaimed 2003

the International Year of Freshwater, its resolution 58/217 of 23

December 2003, by which it proclaimed the International Decade for

Action, ‘Water for Life’, 2005–2015, to commence on World Water

Day, 22 March 2005, its resolution 59/228 of 22 December 2004, its

resolution 61/192 of 20 December 2006, by which it proclaimed 2008

the International Year of Sanitation, and its resolution 64/198 of 21

December 2009 on the midterm comprehensive review of the imple-

mentation of the Decade.’

2International Decade for Action, ‘Water for Life’, 2005–2015 (UNGA

Resolution A/RES/58/217, 23 December 2003).

3See, generally, C. Leb, Cooperation in the Law of Transboundary

Water Resources (Cambridge University Press, 2013).

4See, e.g., P. Gleick (ed.), Water in Crisis: A Guide to the World’s

Fresh Water Resources (Oxford University Press, 1993).

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12064

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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