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Dams And International Law: The Case Of The Belo Monte Dam

Congress: 2015
Author(s): Mara Tignino (Geneva, Switzerland)


Keyword(s): Sub-theme 15: Water law,
AbstractDams and International Law: The case of the Belo Monte dam Mara Tignino Platform for International Water Law, Faculty of Law, University of Geneva, Boulevard du Pont-d'Arve 40, 1205 Geneva, Switzerland (email: mara.tignino@unige.ch, tel.: +41-22-3798546; fax: +41-22-3798543) Rafael Prado University of Barcelona, email: pradojus@gmail.com Subtheme: Water Law Abstract Introduction The world is home to over 45.000 large dams, with a combined storage capacity of around 10.000 cubic kilometres. Dams have often been viewed as instruments of development: they help to meet water and energy needs, foster industry and create jobs. Yet, dam construction and operation can also have serious negative impacts. They can divide aquatic ecosystems, alter natural water flow cycles and transform the biological and physical characteristics of both rivers and floodplains. They have an impact not only in their connected watersheds but also on the often complex ecosystems of river estuaries. Moreover, the creation of reservoirs associated with large dam constructed has caused the displacement of hundreds of thousands of people. Methods The proposed paper contributes to the elaboration of international law with respect to dams and dykes, by bringing together a broad analysis of legal instruments at the universal, regional, and bi-lateral levels with case study of Brazil's Belo Monte Dam. It focuses on international law developments since the World Commission on Dams (WCD) issued its report, Dams and Development: A New Framework for Decision-Making, in 2000. The Belo Monte example is used to explore how sources of international law which do not form part of international water law stricto sensu--such as international environmental law and human rights law--nonetheless give rise to substantive obligations on governments in the construction and administration of watercourse infrastructure. Discussion Among the WCD's findings in its Dams and Development report was a clear articulation of the significant contribution to improved cooperation and conflict avoidance in relation to the implementation of dam projects that can be made by concluding international agreements on shared watercourses (WCD: 251-252). Fifteen years later, it remains difficult to identify common principles of international law related to the development of dam projects. Beyond the 1923 Convention relating to the development of hydraulic power affecting more than one State (Geneva), there are no universal treaties governing the construction and operation of dams. Numerous international agreements--bilateral, multilateral, regional--nonetheless exist that directly or indirectly regulate the potential impact of dams on shared watercourses (Happold: 578). Examples are the 1963 Convention between France and Switzerland for the Development of the Emosson Basin and the 1986 Lesotho Highlands Water Project between Lesotho and South Africa. Moreover, the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, which recently entered into force, embodies a number of principles which may be relevant to the development of dam projects, including equitable and reasonable utilisation, non-significant harm, and prior information. The Convention also contains specific principles concerning infrastructure projects, including an obligation to exercise due diligence in the maintenance of a dam and a requirement to employ the precautionary approach so as mitigate damage from natural events or human acts. However, beyond water-focused legal instruments, international law provides numerous additional sources of obligations with respect to water infrastcture. For example, the protection of dams is directly regulated in instruments of the law of armed conflicts (Tignino: 87-98). The paper's focus on the Belo Monte Dam is meant to highlight potential ramifications of human rights law for the international regulation of dams. Brazil's indigenous populations brought this project before the Inter-American Commission for Human Rights, which granted precautionary measures in their favor. The IACHR case, and the subsequent jurisprudence in the Brazilian courts, therefore raises important questions about how dam construction may be constrained by human rights principles, in particular by demands for prior informed consent of indigenous communities. Conclusion The paper identifies numerous principles of international law applicable to the planning, construction and operation of dams and in so doing, contributes to the ongoing elaboration of an international governance regime on dams and dykes. The case of the Belo Monte dam serve as an illustration of the complementarity of the regimes of international water law and human rights law. 1. Boisson de Chazournes L. (2013) Fresh Water in International Law, Oxford University Press. 2. Happold M. (2005) "Dams and International Law" in Boisson de Chazournes L, Salman M.A. Salman, eds. Water Resources and International Law, Hague Academy of International Law, 577-604. 3. Rieu-Clarke A., Moynihan R., Magsig B.-O. (2012) UN Watercourses Convention: User’s Guide. 4. Shelton (2013), « Water rights of indigenous peoples and local communties » in Boisson de Chazournes L., Leb C., Tignino M., eds. International Law and Freshwater : the Multiple Challenges, Edward Elgar, 69-94. 5. Tignino M. (2011) L’eau et la guerre. Éléments pour un régime juridique, Geneva Academy of International Humanitarian Law and Human Rights, Bruylant. 6. World Commission on Dams (2000) Dams and Development: A New Framework for Decision-Making.
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