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Downstream Riparians Can Also Harm Upstream Riparians: The Concept of Forclosure of Future Uses

Posted:   Type: Publication

Gabriel Eckstein, IWRA Treasurer, posted this review (slightly abbreviated here) of Salman’s article on the InternationalWater Law Project blog: (http: //www.internationalwaterlaw.org/blog)

You may have heard the old adage that water will flow uphill toward money. It comes from the cynical political perspective that believes physics and gravity irrelevant in the management and allocation of fresh water resources. Putting that cynicism
aside, water and all of its benefits and impacts have long been accepted to be at the total mercy ofgravity and topography. In other words, absent artificial inducement, water will always descend to the lowest possible elevation. In an upstream-downstream relationship, this suggests that the upstream riparian always holds all ofthe cards and has effective control of the water. It also suggests that harm on the river could only be caused by an upstream riparian to a lower riparian.
If it were only so clear-cut…

Dr. Salman M.A. Salman, formerly a legal advisor to The World Bank, just published a fascinating analysis on the harm that downstream riparians can inflict on their upstream neighbors through the concept of foreclosure of future uses. In short, by
claiming and enforcing water rights secured prior to those claimed by upper riparians, the downstream riparian can attempt to legally foreclose all possible future uses by its upstream neighbors. According to Dr. Salman, however, such foreclosure can constitute harm in violation ofthe “no significant harm” rule widely recognized as a cornerstone principle of international water law (and, more broadly, ofinternational environmental law). Dr. Salman’s article is likely to be highly controversial.

Downstream riparians – such as Egypt, India, and Pakistan – have long championed the "no significant harm” rule and used it as their bulwark against claims by upstream neighbors aspiring to develop and exploit their riparian character. Now, such advocacy could become a two-edged sword. Nevertheless, Dr. Salman’s argument is straight-forward and erudite and is supported by pertinent case studies and scholarly pronouncements, including examples from the Nile and Ganges Rivers, the 1997 Gabcikovo – Nagymaros case (International Court of Justice), and
the Baardhere Dam and Water Infrastructure Project on the Juba River in Somalia. Hence, there is no need to rehash his argument here. It merely suffices to say: downstream riparians, beware.

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