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A Proposal For An International Center For The Settlement Of Freshwater Disputes

Congress: 2015
Author(s): Matthew Draper, John Draper
Draper & Draper LLC1

Keyword(s): Sub-theme 12: Transboundary river basins and shared aquifers,
AbstractI. Introduction

A new, more sophisticate framework for administering and resolving international freshwater disputes is required. This Paper proposes establishing a neutral International Centre for the Settlement of Freshwater Disputes (the "Centre") tasked with developing rules, procedures and best practices for the arbitration of transboundary water disputes.

II. Background: Arbitration is the chosen method for resolving international water disputes

Dispute resolution is one of the most important provisions of international freshwater treaties. The inclusion of such provisions has been steadily on the rise. Dispute resolution provisions appeared in 31% of water treaties concluded before 1950, 44% after 1950, and 61% signed since 1990. More than 120 transboundary water treaties provide for some form of binding dispute resolution. (Giordano et al., 2013) An analysis of Oregon State University's International Freshwater Treaties Database, the world's most comprehensive database of freshwater treaties concluded between 1820 and 2007, indicates that parties are increasingly turning to formal, binding dispute resolution processes. The vast majority of treaties that provide for binding dispute resolution, require arbitration (110 treaties, or 89%). Even treaties that do not require arbitration of disputes provide for increasingly formalized procedures for collecting information and issuing recommended solutions. On prominent example is the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, which entered into force on August 18, 2014, and provides for an independent "Fact-Finding Commission" with powers to order the production of information, conduct site inspections, and issue recommendations that Parties must consider in good faith.

For other types of international disputes, such as commercial and investor-State disputes, arbitration has established itself over the past several decades as the preeminent mechanism for resolving them. The success of arbitration in theses areas has been in large part due to the existence of efficient and effective supervisory bodies, a corps of skilled and experienced arbitration practitioners, an arbitral process broadly accepted as fair, and the straightforward enforcement of awards. The use of international arbitration in the commercial sphere has also increased significantly.

III. Greater International Support is Required For Resolving Water Disputes

The international community must begin working now on the development of a specialized framework for the arbitration and settlement of international freshwater disputes.

First, transboundary freshwater disputes are almost always very difficult to resolve because they often become subject to strong domestic political pressures within each party as they often directly impact human health, food and/or energy supplies. These factors often make negotiated outcomes difficult.

Second, international arbitration offers significant advantages for international disputes. The procedural rules may be tailored to the particular needs of the dispute, the parties are free to select arbitrators who will be neutral, independent, and possess specialized knowledge or experience relevant to the dispute. The Indus Waters Kishenganga Arbitration between Pakistan and India, which resulted in a final award in 2013, is a prime example of the successful resolution of a transboundary water dispute through arbitration. It succeeded because the applicable Indus Waters Treaty (1960) includes specialized arbitration rules and procedures agreed by the parties.

Third, the number and importance of arbitrations of international freshwater disputes will almost certainly increase in the future. As noted, arbitration provisions are prevalent in freshwater treaties. Moreover, the number of transboundary water disputes will increase due to the increasing competition for water and the growing volatility of water supplies in many places around the globe.

Fourth, existing international institutions are inadequate for resolving water disputes. The International Court of Justice has no specialized knowledge in water issues. Indeed, the judgment of the Court was criticized for its alleged failure to properly assess scientific expert testimony in Pulp Mills on the River Uruguay (Argentina v. Uruguay). (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma).

IV. Conclusion: Establishing an Transboundary Water Disputes Arbitration Centre

For the reasons set forth above, greater investment is required in the infrastructure supporting the arbitration of international freshwater disputes. An international effort is required to build a neutral Centre. The Centre would promulgate specialized procedures and rules for the conduct of the meditation and arbitration of international freshwater disputes, administer such disputes at the request of the parties, and maintain a roster of skilled and experienced professionals capable of serving as mediators and arbitrators. In addition the Centre could disseminate best practices, particularly in the areas of the use and assessment of expert evidence.

The natural home for the Centre is the Permanent Court of Arbitration (PCA). The PCA is an intergovernmental organization providing legal and administrative support for the arbitration of State-to-State disputes. The PCA has experience establishing specialized rules for natural resources disputes. Its existing rules were not developed with water disputes in mind, however. A new Centre for the Settlement of Freshwater Disputes is required, therefore, to meet the growing challenge of resolving water-related international disputes. All references will accompany full paper.

2011 IWRA - International Water Resources Association office@iwra.org - http://www.iwra.org - Admin