Water: challenges for international law and policy.

Author:de Chazoumes, Laurence Boisson
 
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This panel was convened at 10:45 am, Friday, April 11, by its moderator, Joseph Dellapenna of Villanova University School of Law, who introduced the speakers: Laurence Boisson de Chazoumes of the University of Geneva; Gabriel Eckstein of Texas A&M University School of Law; Georgia Kayser of Gillings School of Public Health, the University of North Carolina at Chapel Hill; and Stephen C. McCaffrey of the University of the Pacific McGeorge School of Law. *

THE NOTION OF ENVIRONMENTAL FLOWS AND THE LAW APPLICABLE TO INTERNATIONAL WATERCOURSES

By Laurence Boisson de Chazoumes ([dagger])

INTRODUCTION

A recent award, rendered in the context of a dispute between Pakistan and India, the so-called Kishenganga arbitration, (1) has shed light on a concept that had received little attention in state practice or in judicial practice. This is the concept of environmental minimum flow.

Pakistan's claim, in which it sought to preserve downstream flows, referred to the notion of minimum flow in order to prevent India's hydroelectric plant from diverting a quantity of the Neelum River's downstream flow that would affect Pakistan's agricultural and hydroelectric uses. India, for its part, stated that there would be a minimum environmental flow downstream of the planned plant at all times and that it would be of a certain amount. (2)

The Tribunal addressed the issue of environmental minimum flow on the basis of the 1960 Indus Treaty, to which India and Pakistan are state parties, and on the basis of customary international law by way of interpretation. (3) The Tribunal considered the concept of minimum flow in an environmental context, speaking of the notion of minimum environmental flow. (4) It also spoke of the requirement of "the maintenance of a minimum flow downstream of the [concerned hydroelectric project] in response to considerations of environmental protection." (5) While doing so, the Tribunal took into account the various uses at stake, as well as the requirement to protect the environment. In these brief remarks, I will attempt to contextualize the notions of minimum flow and environmental minimum flow within the framework of the law applicable to international watercourses. I will then make a few suggestions as to their meaning in practice, especially in light of the Kishenganga award. (6)

THE VARIOUS USES OF INTERNATIONAL WATERCOURSES AND THE NOTIONS OF MINIMUM FLOW AND ENVIRONMENTAL MINIMUM FLOW

Since the end of the nineteenth century, watercourses have increasingly been used for irrigation and energy production. These processes involve "planned measures." (7) According to the definition of the International Law Commission (ILC), planned measures are to be understood in a broad sense, including new projects and programs, as well as changes in the existing uses of a transboundary watercourse. (8) This category covers physical infrastructure and installations that are required for an industrial economy, such as dams, water supply pipes, and locks.

These uses may, at times, compete with one another and thereby generate disputes among riparian states. International law appears to have endorsed a rather neutral position by avoiding the privileging of any such uses, except when it is necessary to take into account vital human needs, as stipulated by Article 10 of the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses (UN Watercourses Convention). (9) Riparian states should seek a mutually agreed solution and, in doing so, they should be guided by the principles of equitable and reasonable utilization, participation, and the obligation not to cause significant harm. In so doing, there has been a growing concern that environmental protection be taken into account. (10)

The concepts of minimum flow and environmental flow are found in the context of the uses of watercourses and their associated legal obligations. (11) They are developing in international practice in the context of sustainable management of natural resources. While there is no specific definition of these notions, treaty practice provides some insights as to their meaning. They relate to the maintenance of a quantity of water in the main channel of a watercourse, as referred to in the Treaty on the Lesotho Highlands Water Project, (12) or more specifically, to an obligation to control water flow.

The allowance may be seasonal, as in the case of the 1995 Mekong River Agreement, (13) or perennial, as in the Treaty on the Cooperative Development of Water Resources of the Columbia River Basin (1961). (14) The notion of minimum flow can be linked to the need to ensure the availability of water for the needs of a downstream state, or for human and animal health considerations, as foreseen in the Water Charter of the River Niger Basin. (15)

The notion of environmental flow has been referred to in some treaties. The parties to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) adopted a resolution in 2002 stating that environmental "flows should normally follow the natural regime as closely as possible to maintain the natural ecology" (16) and recommended the undertaking of environmental flow assessments to mitigate socioeconomic and ecological impacts of large dams on wetlands. The Treaty Concerning the Integrated Development of the Mahakali River provides: "India shall maintain a flow of not less than 10 [m.sup.3]/s (350 cusecs) downstream of the Sarada Barrage in the Mahakali River to maintain and preserve the river eco-system." (17)

International jurisdictions have on some occasions alluded to the notion of...

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