Artificial Waterways in International Water Law: An American Perspective.

• Author: Meshel, Tamar

TABLE OF CONTENTS I. INTRODUCTION II. ARTIFICIAL WATERWAYS IN INTERNATIONAL LAW III. ARTIFICIAL WATERWAYS IN AMERICAN WATER LAW IV. DOMESTIC PRINCIPLES AND TRANSBOUNDARY ARTIFICIAL WATERWAYS V. CONCLUSION VI. APPENDIX I VII. APPENDIX II I. INTRODUCTION

Freshwater (1) is a fleeting natural resource that can never be fully harnessed or appropriated by humans. It evaporates from the sea and land, is drawn into the atmosphere, falls as rain and snow, sinks into the earth to reappear in watercourses, and then drains back into the sea. (2) Indeed, "[w]ater is a movable, wandering thing, and no man, State or Nation can receive or give an absolute title to it while it is still flowing naturally in streams or other bodies." (3) Nonetheless, under both domestic and international law, freshwater is a regulated resource and legal principles have developed to govern its allocation and use. But what of freshwater that, rather than "flowing naturally in streams or other bodies." has been made to so flow by human intervention? Should manmade canals, for instance, be subject to the same legal principles that govern the ownership and use of naturally occurring rivers?

Artificial waterways (4) have been central to humanity's relationship with water since the emergence of early "hydraulic civilizations"--the first developed social groupings, whose development is closely linked to the availability of water supply. (5) Examples include the Egyptian civilization that developed around the Nile River and the Assyro-Babylonese or Mesopotamian civilization that developed around the Tigris and Euphrates River. (6) Man-made waterways enabled such civilizations to direct water to where it was most needed and defend against floods. (7)

Therefore, the need to regulate these artificial waterways also arose early on. In some early civilizations, such regulation was separate from the regulation of natural water bodies such as lakes or rivers. In ancient Egypt, for instance, the water administration was comprised of two departments, headed by a "Master of Canals" and a "Master of Lakes." (8) In pre-Columbian Meso-America, the waters of the Calderon River were allocated differently between those who used the river directly and those who used it via canals constructed on their lands. (9) Traditional Islamic water law also developed separate principles to regulate different types of water bodies, such as lakes, rivers, and canals. (10) For instance, the prohibition on the selling or buying of water applied only to natural water sources. (11) In contrast, other, more modern, water laws did not seem to distinguish between the regulation of naturally occurring rivers and man-made canals. For instance, the Mejelle, the Ottoman civil code promulgated in the 1870s, applied the same principles to rivers and canals for the purpose of irrigation rights and the sale of water rights. (12) In the former Soviet Union, water law was based on the "unitary notion of water body," which treated natural water resources (e.g., lakes, rivers) and artificial water resources (e.g., reservoirs, canals) as part of a single integrated state water system. (13)

Nowadays, the construction of artificial waterways such as canals continues. One study has determined that there are nearly 4000 linear kilometers of artificial waterways globally, covering an area of 270 square kilometers. (14) Some artificial waterways cross international boundaries and have also been the subject matter of interstate disputes. (15) Past examples include the dispute between the United States and Mexico concerning the lining of the All-American Canal (16) and disputes between Jordan and Israel involving the East Ghor Canal in the Jordan River Basin. (17) In the face of increasing water scarcity and shifting availability, the construction of artificial waterways to manipulate water flows and divert water to arid areas is likely to increase in the future, (18) potentially giving rise to additional disputes.

In fact, a case is currently pending before the International Court of Justice (ICJ) concerning the legal status of man-made channels forming the transboundary Silala water system crossing from Bolivia into Chile. (19) The artificial channels carrying the water into Chile were constructed in 1908 by a Chilean mining corporation under a concession granted by Bolivia and were used in Chile for domestic and industrial purposes until Bolivia "reversed and annulled" the concession in 1997. (20) In its application to the ICJ, Chile claimed that the artificial channels did not alter the Silala's natural flow and that it is therefore a transboundary watercourse regulated under international law. (21) In its counter-memorial, Bolivia argued that the Silala is a domestic watercourse and claimed complete ownership over it on the ground that its waters are transported artificially into Chile as a result of the canalization. (22)

Other transboundary disputes involving artificial waterways may be looming. In the Nile River basin, there have been renewed calls to complete the Jonglei Canal, which was supposed to link the Upper Nile in South Sudan with the White Nile feeding northern Sudan and Egypt. (23) The construction of the canal stopped in the 1980s as a result of opposition in South Sudan and attacks by rebel groups. (24) Another evolving dispute concerns Ukraine's blockade of the North Crimea Canal, which has stopped the flow of water to the Russian-occupied territory of Crimea. (25) Commentators have noted that one element complicating the determination of the law applicable to this precarious situation is that "the applicability of the law of international watercourses to artificial canals has not been clearly established." (26)

Indeed, whereas some domestic jurisdictions have developed clear legal principles to govern the non-navigational uses (such as irrigation, drinking, flood control, and hydropower production) of artificial waterways, their status in international water law (27) remains unsettled. Artificial waterways are not defined or treated consistently in international instruments, and the ICJ has yet to opine on whether they are--at least presumptively--subject to the same customary international law principles governing natural transboundary watercourses. Moreover, scholarly work on this question is scant. In light of their growing ubiquity around the world, however, the legal status of transboundary artificial waterways and the principles that govern their use remain important and should be clarified.

Absent clear definitions and principles, disputing states may be inclined to resurrect sovereignty-based arguments that have long been debunked in the context of natural transboundary watercourses. For instance, a state might claim complete sovereignty over an artificial waterway that it has created, notwithstanding that the waterway may be linked to a natural transboundary watercourse, along the lines of the now-defunct "absolute territorial sovereignty" doctrine. (28) This doctrine has been largely replaced in international water law with the "limited territorial sovereignty" doctrine, which limits the sovereignty of a state over transboundary water crossing its territory by the obligation to use it in an equitable and reasonable way that avoids causing significant harm to other states sharing the water. (29)

But does this mutual limitation on the sovereign rights of states (30) extend to waters crossing international boundaries artificially? On the one hand, it may be argued that any claim of territorial sovereignty by a state over waterways crossing a border in any way, whether natural or artificial, would necessarily be limited given the mobile nature of water and its "hydrographical unity." (31) As noted above, water evaporates into the air, falls from the sky, and sinks into the ground with no regard to states' territorial boundaries or whether it flows in natural or artificial channels. On the other hand, distinctions may be drawn in terms of ownership and use of natural versus artificial cross-border waterways notwithstanding this mobile and elusive character of water itself. For instance, it may be argued that the artificial linking of entirely domestic natural waterways, thereby causing them to cross state boundaries, does not alter their domestic nature. Therefore, the argument goes, such waterways should not be removed from exclusive domestic control and subjected to international law. (32)

This Article takes a first step toward clarifying when and how international water law principles applicable to natural transboundary watercourses should be applied to artificial transboundary waterways. There are three principal ways in which artificial waterways may be created, either domestically or internationally. First, by establishing a wholly artificial water body that is unconnected with any previously existing natural water body, such as an artificial lake. Second, by artificially altering a natural waterway, for instance, by way of diversion. Third, by artificially connecting natural waterways, for instance, by way of canalization. (33) Since this Article is concerned with transboundary issues, it focuses on artificial alterations to natural transboundary watercourses and on artificial connections of natural waterways that would otherwise remain domestic. Wholly artificial water bodies, such as artificial lakes, tend to be smaller and local, and are therefore unlikely to raise transboundary issues. (34)

While the Article focuses on artificial waterways in the transboundary context, it approaches the issue from a domestic water law lens. To be clear, it does not purport to suggest that domestic legal principles be imported into international law "lock, stock and barrel." (35) Nor does it propose that domestic water law be directly applied to international disputes. Therefore, it does not engage in an analysis of whether and how domestic water law might properly serve as...