IWRA Webinar N° 58

The International Court of Justice (ICJ) has heard very few cases involving international water law, but the number of water-related cases has risen as water conflicts increase. This webinar examined the most recent ICJ dispute between Bolivia and Chile, as well as the content and relevance of all ICJ water-related judgments. Christina Leb, Senior Counsel at the World Bank and Fellow at the Platform for International Water Law, moderated the discussion.

The webinar was a collaboration between the International Water Resources Association, Geneva Water Hub, and International Association for Water Law (AIDA). This event had 418 registrants with attendees tuning in from many countries across the globe such as the United States, Bolivia, Pakistan,the Netherlands and many more.

Laura Movilla Pateiro, Lecturer in Public International Law at the University of Vigo, provided participants with background information on the Silala watercourse, its geographical context, and the dispute surrounding it. The Silala Basin is shared by Bolivia (upstream) and Chile (downstream), and lies in the Atacama Desert approximately 300 km northeast of Antofagasta, Chile. Ms. Movilla Pateiro emphasized the importance of the historical context of Bolivian-Chilean relations, which helps explain some of the current tensions between the two countries. Although the parties were close to reaching agreements on the Silala case in 2009-10, they were never signed. In concluding her opening remarks, Ms. Movilla Pateiro also presented Chile’s position and claims in the dispute, as well as Bolivia’s position and counterclaims.

Mara Tignino, Reader at the Faculty of Law of the University of Geneva and Lead Legal Specialist of the Platform for International Water Law at Geneva Water Hub, highlighted that although neither Chile nor Bolivia are parties to the UN Water Conventions, both countries and the court relied heavily on customary international law reflected in the Convention on the Law of Non-Navigational Uses of International Watercourses. She then presented Chile’s legal arguments in the Silala case, emphasizing in particular that it was a priority for the Chilean side that the international status of the river be recognised, as Chile would then have equitable and reasonable right to use the waters of it.

Gabriel Eckstein, Professor of Law and Director of the Energy, Environmental, and Natural Resource Systems Law Program at the Texas A&M University, presented the legal arguments of Bolivia in the Silala case. He explained how Bolivia’s initial position that the Silala was a domestic water body that flows artificially (through man-made canals constructed in the early 1900s) across the border changed after Bolivia conducted studies showing that the water would have flowed naturally across the border even without the canals. While Bolivia already recognized the international nature of the Silala watercourse in its counterclaims, it argued that the artificial waterways increased water flow. Consequently, the extent of the applicability of international water law was questioned, and the threshold for legal action was debated, particularly vis-à-vis Bolivia’s activities upstream, such as fish farming, and the associated potential notification obligation.

Following the presentations on the legal arguments of Bolivia and Chile, Ms. Movilla Pateiro gave a summary of the ruling of the International Court of Justice (ICJ) in this case. The ICJ ultimately decided not to issue a decision and instead acknowledged that the parties had reached an agreement over the nature of the Silala as an international watercourse and that both agreed that customary international law applied to all of its waters. Although the judgment did not contain a binding decision, the legal proceedings may nevertheless have been very important and ultimately led to some rapprochement between the parties.

Richard Paisley, Director of the Global Transboundary International Waters Governance Research Initiative at the University of British Columbia, stated in his intervention that the ruling of the ICJ provided more questions than answers. He cited one of the ad-hoc judges in the case who expressed his concern that the court did not settle the dispute with binding force. Mr. Paisley then raised the question of whether international law, the ICJ, and legal mechanisms are sufficient to resolve this dispute in times of climate change. He pointed to alternative or complementary ways to resolve such disputes, such as interest-based negotiations and mediation.

Salman Salman, World Bank Former Lead Counsel and Water Law Advisor, also emphasized the important role of third parties, such as for instance the World Bank, in resolving water disputes. He also highlighted that River Basin Organizations (RBOs) can play a crucial role in managing transboundary waters. Furthermore, the important role of science in resolving disputes, such as the one relating to the Silala watercourse, was underscored