User:Kaihsu/EnvD6

D6: Freshwater resources

Freshwater is 2.5 % of all water on Earth, 0.3 % of which is surface water, which is most-regulated internationally.

For surface water, substantive principles of equitable use: + environmental due diligence to prevent/mitigate significant harm (+ community of interests) + procedural obligations to cooperate &rarr; common management with institutions?

Historically, the competing principles were: absolute territorial sovereignty (upstream), absolute territorial integrity (downstream), limited territorial sovereignty, equitable use ≈ community of interests (now prevailing). No longer about just navigation and water quota. Agenda 21 chapter 18: catchment management approach.

Customary law and regional treaties
Principle 21 Stockholm, Principle 2 Rio (sic utere tuo: rights to own resources but no harm beyond); 1966 Helsinki Rules on the Uses of the Waters of International Rivers adopted by the International Law Association &rarr; controversially ambitious 2004 Berlin Rules. SDG 6 availability and sustainable management of water; water as human right.

Regional treaties include: These are based on customary law and/or the conventions below. Such customary law is not jus cogens (peremptory norm), so treaty provisions can derogate from it: Pulp Mills, Indus Waters Kishenganga arbitration (Pakistan v. India) 2013 PCA.
 * Europe: Rhine Commission (1950, 1999), Danube (1994)
 * Americas: International Joint Commission (US–Canada 1909), Amazon (1978)
 * Asia: Indus (1960), Mekong (1995, but China is not a party), Israel–Jordan peace treaty (1994)
 * Africa: Southern Africa (1995, 2000; Zambezi 1987, Incomati 2002), Nile (1959, 2010), Niger River (1963, 2008)

Caselaw
The right of upstream States to free access to the sea is important in river law, the basic concept of which is that of a community of interests of riparian States which in itself leads to a common legal right: River Oder 1929 PCIJ. Confirmed in 1957 Lake Lanoux arbitration: France must consider Spain’s interest but no veto on hydropower plans. &rarr; common management.

Gabčíkovo–Nagymaros ICJ 1997: Rights of river-bank states in relation to shared watercourses are not unlimited; one such cannot deprive another from a right to an equal and reasonable share of the natural resources; unilateral action of Czechoslovakia deprived Hungary of its right to an equitable and reasonable share of the natural resources (paras 78, 85). The principles: equal participation, ecological necessity; sustainable development, dynamic interpretation based on evolving environmental standards (paras 112, 140). River Oder relied on.

Pulp Mills ICJ 2010: States have both procedural and substantive obligations, which complement each other (para 77); Uruguay failed to fulfil its procedural obligations, but Argentina failed to demonstrate Uruguay’s breach of substantive ones. Procedural obligations to cooperate: notify, consult, coordinate e.g. via Comisión Administradora del Río Uruguay (CARU). Substantive (technical; paras 171, 175 to 177): e.g. rational use of the river, manage soil and woodland to protect the river and water quality, avoid changes in ecological balance, prevent pollution, preserve aquatic environment.

Indus Waters Kishenganga arbitration (Pakistan v. India) 2013 PCA: ‘the Court does not consider it appropriate, and certainly not “necessary,” for it to adopt a precautionary approach and assume the role of policymaker in determining the balance between acceptable environmental change and other priorities, or to permit environmental considerations to override the balance of other rights and obligations expressly identified in the Treaty — in particular the entitlement of India to divert the waters of a tributary of the Jhelum. The Court’s authority is more limited and extends only to mitigating significant harm’: para 112.

The Court’s declaration of wrongful conduct that Costa Rica’s violation of the obligation to conduct an environmental impact assessment (EIA) for its extensive road construction along the border was the appropriate measure of satisfaction for Nicaragua: 2015 Nicaragua v Costa Rica ICJ.

1997 UN Watercourses Convention
This framework Convention on the Law of the Non-Navigational Uses of International Watercourses (in force 2014) is based on ILC draft articles. Insofar as it codifies customary law, it applies even to non-party states. ‘“Watercourse” means a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus’: art. 2(a).

Customary law is codified into equitable and reasonable utilization as the leading substantive principle (arts. 5, 6), followed by due diligence to prevent significant harm in another state (art. 7). Procedural obligations: cooperation, info exchange (arts. 8, 9), provision for the relationship between different uses of watercourse (art. 10), planned measures (Part III, esp. arts. 11, 12).

Part IV is on preserving/protecting ecosystems against pollution and alien species (must be considered for equitable use); Part V on duties to prevent, mitigate, neutralize harmful conditions & notify emergencies; Part VI dispute settlement etc.

1992 Helsinki Water(courses) Convention
Initially a UNECE treaty, this Convention on the Protection and Use of Transboundary Watercourses and International Lakes was amended 2003 to become UN treaty (effective 2015). Parties are obliged to prevent, control and reduce any transboundary impact; use transboundary waters in an ecologically-sound, rational, reasonable, equitable way; conservation and restore ecosystems (art. 2); principles of cooperation (arts. 3 to 8). Part II (arts. 9 to 16) deals with procedural obligations: consultations, joint monitoring and assessment, exchange of information. It is based on precautionary principle, polluter-pays principle, intergenerational equity (art. 5) &rarr; EU environmental law? It has rules applicable to transboundary waters between parties and non-parties.

This is followed by 2003 Civil Liability Protocol, 2006 provisions in food management, 2012 Importation Committee, and...

1999 UNECE/WHO-Europe Protocol on Water and Health
Based on sustainable development (art. 1), this (in force 2005) aims to protect human health and wellbeing by better water management (incl. ecosystems); and prevent, control, and reduce water-related diseases in Europe by securing drinking water and sanitation, holistically linking socioeconomics with ecology. Each party sets targets with dates. Art. 15 provides for a (nonconfrontational, non-judicial, consultative) compliance procedure with a committee that can consult parties and consider public submissions. Annex II is on best environmental practice and Annex III on best available technology.

Aquifers and iced freshwater
69.6 % of freshwater is iced freshwater, 30.1 % is ground water.

Aquifers are more fragile and take longer to replenish if at all. UN General Assembly Resolution 68/118 (2013) commends to states the ILC draft articles on the law of transboundary aquifers, first submitted 2008; discussions are ongoing. The rules largely mirror those for surface water, except that the geological containers are within scope.

Recommendation XV-21 (1989; in force 2004) of the meeting of the parties to the Antarctic Treaty asks that commercial exploitation of icebergs occur only after examination by the parties. For the arctic, only soft law (e.g. Arctic Environmental Protection Strategy by Arctic Council) and UNCLOS esp. art. 234 apply; e.g. Newfoundland issues permits for iceberg exploitation, which is questioned by Denmark.