JOBNAME:EE10McCaffrey PAGE:4 SESS:6 OUTPUT:ThuDec1308:49:432018 ©The Editors and Contributors Severally 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL502JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018958456 This book is available electronically in the Law subject collection DOI 10.4337/9781785368080 ISBN9781785368073(cased) ISBN9781785368080(eBook) Typeset by Columns Design XML Ltd, Reading Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:2/ Date:29/11 JOBNAME:EE10McCaffrey PAGE:5 SESS:9 OUTPUT:ThuDec1308:49:432018 Contents List of contributors viii Foreword by Stephen M. Schwebel xv Preface xvi List of acronyms and abbreviations xvii Table of cases xxiii Table of treaties and other instruments xxvi Introduction to the Research Handbook on International Water Law 1 Stephen C. McCaffrey, Christina Leb and Riley T. Denoon PART I EVOLUTION OF INTERNATIONAL WATER LAW 1 From treaty practice to the UN Watercourses Convention 11 Alistair Rieu-Clarke 2 The work of international legal expert bodies 26 Joseph W. Dellapenna 3 The global water treaties and their relationship 44 Attila Tanzi 4 Inter-jurisdictional water allocation in federal systems: lessons for international water law 59 Rhett Larson and A. Dan Tarlock PART II GENERAL PRINCIPLES AND KEY OBLIGATIONS OF INTERNATIONAL WATER LAW 5 Intertwined general principles 83 Stephen C. McCaffrey 6 Implementation of the general duty to cooperate 95 Christina Leb 7 Prior notice and related issues 109 Lucius Caflisch 8 Environmental protection and the ecosystem approach 126 Owen McIntyre 9 The application of the general principles and key obligations to internationally shared groundwater 147 María Milanés-Murcia v Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:1/ Date:10/12 JOBNAME:EE10McCaffrey PAGE:6 SESS:6 OUTPUT:ThuDec1308:49:432018 vi Research handbook on international water law PART III INTERNATIONAL WATER LAW AND ITS RELATION WITH OTHER AREAS OF LAW 10 Water and multilateral environmental agreements: an incomplete jigsaw puzzle 166 Daniel Barstow Magraw and Patsorn Udomritthiruj 11 International water law and climate disruption 186 A. Dan Tarlock 12 Water and international trade law 205 Daniel Barstow Magraw and Deepika Padmanabhan 13 Water in international humanitarian law 224 Mara Tignino PART IV THE HUMAN RIGHT TO WATER AND VITAL HUMAN WATER NEEDS 14 The human right to water 242 Inga T. Winkler 15 The human right to water in a transboundary context 255 Anna F.S. Russell 16 The UNECE Protocol on Water and Health for the implementation of the right to drinking water and sanitation 273 Attilla Tanzi and Gian Maria Farnelli PART V DISPUTE SETTLEMENT AND COMPLIANCE 17 The Permanent Court of International Justice, The International Court of Justice and international water law: versatility in consistency 285 Laurence Boisson de Chazournes 18 The role of scientific and technical experts 301 Cicely O. Parseghian and Benjamin K. Guthrie 19 The implementation mechanism and committee established under the UNECE Convention on the Protection of Transboundary Watercourses and International Lakes 319 Johan G. Lammers PART VI REGIONAL APPROACHES 20 Creating basin mechanisms in Southern Africa 341 Richard K. Paisley and Maaria Curlier 21 West African approaches to international water law and treaty practice 361 Makane Moïse Mbengue and Nwamaka Odili 22 The Nile River Basin and its changing legal contours 379 Salman M.A. Salman 23 Europe: international water law and the EU Water Framework Directive 397 Götz Reichert Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:2/ Date:29/11 JOBNAME:EE10McCaffrey PAGE:7 SESS:6 OUTPUT:ThuDec1308:49:432018 Contents vii 24 Central Asia: the Aral Sea basin 414 Dinara R. Ziganshina 25 South Asian Water Treaty practice: an overview 431 Kishor Uprety 26 China’s international water relations 447 Yu Su 27 Transboundary water cooperation between the Russian Federation and the neighbouring states: legal and institutional frameworks 463 Sergei Vinogradov and Patricia Wouters 28 A panoptic view of international water law in Latin America 488 Lilian del Castillo Laborde 29 A long history of cooperation between Canada and the United States on boundary waters 506 Richard K. Paisley Index 521 Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:3/ Date:29/11 JOBNAME:EE10McCaffrey PAGE:8 SESS:6 OUTPUT:ThuDec1308:49:432018 Contributors Laurence Boisson de Chazournes is Professor at the University of Geneva and the Director of the Platform for International Water Law (Geneva Water Hub: https:// www.genevawaterhub.org/fr). She has published widely in the areas of international environmental law, international water law and dispute settlement. She received the ElizabethHaubPrizeforEnvironmentalLaw(2008)andsheisamemberoftheGlobal High-Level Panel on Water and Peace. She is also a counsel before the International Court of Justice (ICJ) and has acted in renowned international environmental law cases (Legality of the Threat or Use of Nuclear Weapons (1996), Pulp Mills on the River Uruguay (2010) and Whaling in the Antarctic (2014)). Lucius Caflisch is Professor Emeritus and former Director of the Graduate Institute of International and Development Studies, Geneva. He was the Legal Adviser of the Department of Foreign Relations of the Swiss Confederation, a judge at the European Court of Human Rights, and member of the International Law Commission of the United Nations. Lilian del Castillo Laborde, Public International Law Chair at the University of Buenos Aires (UBA) School of Law, Member of the Academy of Environmental Sciences ofArgentina, Member of the NationalAcademy of Sciences of BuenosAires, formerDirectoroftheLaPlataBasinOffice(1984–99)andLaPlataBasinInstitutional Coordination (2000–10), Ministry of Foreign Affairs, Argentina. MaariaCurlierhasanextensivebackgroundinediting,research,websitemanagement and development, as well as conference and workshop hosting. Fluent in three languages, including French, she has worked in the mining, mineral and exploration sectors, international relations, international marine and fresh water law and govern- ance, and coastal zone management. She recently was a key member of a team that developed a multi-year Global Environment Facility project in charge of research, editing and website management. Joseph W. Dellapenna is retired professor of law having taught in the United States andelsewhereformorethan40years.Hehaspracticed,taught,andwrittenaboutwater issues for this entire period, frequently consulting with governments on water issues. He contributes about half of the treatise Waters andWater Rights, the standard work on water law in the United States. As Rapporteur for the Water Resources Committee of the International Law Association, he led the drafting of the Berlin Rules on Water Resources that replaced the Helsinki Rules on the Uses of the Waters of International Rivers. He directs the Model Water Code Project of the American Society of Civil viii Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:1/ Date:29/11 JOBNAME:EE10McCaffrey PAGE:9 SESS:6 OUTPUT:ThuDec1308:49:432018 Contributors ix Engineers, which has produced two Model Water Codes (for regulated riparian and appropriative rights) as well as model interstate water compacts. Riley T. Denoon is a doctoral student under Professor Stephen C. McCaffrey at the University of the Pacific, McGeorge School of Law and a Barrister and Solicitor from BritishColumbiaandAlberta,Canada.Hiscurrentareasofworkandpublicationcentre on the law of transboundary watercourses, public international law, international dispute resolution, local stakeholder engagement and safeguard policies of multilateral investment banks. He holds a J.D. from the University of British Columbia and a L.L.M. from the University of the Pacific, McGeorge School of Law. Gian Maria Farnelli, Ph.D., is former post-doc fellow in International Law at the Department of Legal Studies of the University of Bologna. He has published in English and Italian on various topic of international law, with special regard to the law of the sea, jurisdictional immunities, environmental law and counter-terrorism. Benjamin K. Guthrie is an attorney at Herbert Smith Freehills LLP. As a member of the firm’s international litigation and arbitration practice at Foley Hoag LLP, he represented sovereign clients in disputes before a range of international tribunals. Benjamin has worked with scientific and technical experts before the International Court of Justice in the conjoined Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica) cases. Johan G. Lammers is former Legal Adviser of the Netherlands Ministry of Foreign Affairs. He represented the Netherlands in legal matters at the EU in Brussels, the Council of Europe in Strasbourg, at the UN in New York, and in proceedings before the International Court of Justice and in arbitrations with France and Belgium. He participated in negotiations for many conventions concerning protection of the environ- ment. Dr. Lammers is a former Professor in Public International Law and International Environmental Law at the University of Amsterdam and is presently a member of the UNECE Water Convention’s Implementation Committee. Rhett Larson is the Morrison Fellow inWater Law andAssociate Professor atArizona State University’s Sandra Day O’Connor College of Law. He is also a Senior Research Fellow with the Kyl Center for Water Policy. He received his J.D. from the University of Chicago Law School and his M.Sc. inWater Science, Policy, and Management from the University of Oxford. His research and teaching focuses on international and domestic water law and policy. Christina Leb works as Senior Water Resources Specialist and Thematic Focal Point for Transboundary Waters at the World Bank and is an Associate Member of the Platform for International Water Law, housed at the University of Geneva. Christina holds a doctorate in international law from the University of Geneva. Her research work focuses on international water law and transboundary water governance. The views presented in the contributions to this book are hers alone and in no way reflect Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:2/ Date:29/11 JOBNAME:EE10McCaffrey PAGE:10 SESS:6 OUTPUT:ThuDec1308:49:432018 x Research handbook on international water law the position of the World Bank, its Board of Executive Directors or any of its member countries. Daniel Barstow Magraw is President Emeritus of the Center for International Environmental Law (CIEL) and Professorial Lecturer and Senior Fellow at the Foreign PolicyInstituteatJohnsHopkinsUniversity’sSchoolofAdvancedInternationalStudies (SAIS). He has worked in government, non-governmental organizations (NGOs), inter-governmental organizations, business and academia. He serves as a consultant to the United Nations regarding water, environment, human rights and investment law; and he was counsel to India in the Kishenganga River arbitration. Stephen C. McCaffrey is Distinguished Professor of Law at the University of the Pacific, McGeorge School of Law. He completed two terms on the UN International Law Commission, served as the ILC’s chair and as its special rapporteur on inter- national watercourses. He is the 2017 Stockholm Water Prize Laureate. Professor McCaffrey is a member of the Implementation Committee of the UNECE Water Convention. He has served as counsel to States in cases before the International Court ofJusticeandthePermanentCourtofArbitrationandhaspublishedwidelyinthefield. Owen McIntyre is Professor, School of Law, University College Cork with research interests across a range of areas of environmental law. He serves as Chair of the IUCN-WCEL Specialist Group on Water and Wetlands, as a member of the Project Complaints Mechanism of the European Bank for Reconstruction and Development (EBRD), and as a member of the Irish statutory Aquaculture Licences Appeals Board. He recently completed two terms as a member of the Scientific Committee of the European Environment Agency. María Milanés-Murcia is a Water Specialist for the Food and Agriculture Organ- ization of the United Nations and an environmental lawyer. She has worked on international water management, irrigation policies and stakeholders arrangements in Nigeria, Spain, Mexico, U.S. and Iraq. Her work has involved direct cooperation with the U.S. and Mexican Sections of the International Boundary and Water Commission. She holds an LL.M. and J.S.D. in International Water Law from McGeorge School of Law, University of the Pacific, CA, USA; M.A. in Economics from New Mexico State University, USA and LL.B. from University of Murcia, Spain. She has also worked with scientific and technical experts before the International Court of Justice, in the Pulp Mills on the River Uruguay (Argentina v. Uruguay). Makane Moïse Mbengue is Professor of International Law at the Faculty of Law of the University of Geneva. He is also an Affiliated Professor at Sciences Po Paris (School of Law) where he teaches General International Law and the Law of theWorld Trade Organization (WTO). He holds a Ph.D. in Public International Law from the University of Geneva. He was the Lead Expert for the negotiations and drafting of the Pan-African Investment Code (PAIC) in the context of theAfrican Union. He has acted andactsasexpertfortheAfricanUnion,theUnitedNationsEconomicCommissionfor Africa, the United Nations Environment Programme (UNEP), the World Health Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:3/ Date:29/11 JOBNAME:EE10McCaffrey PAGE:11 SESS:8 OUTPUT:ThuDec1308:49:432018 Contributors xi Organization (WHO), the World Bank, the International Labour Organization (ILO) and the International Institute for Sustainable Development (IISD) among others. Prof. Mbengue acts as counsel in disputes before international courts and tribunals and as adviser for governments in several fields of international law. He is the author of several publications in the field of international law. Nwamaka Odili has been involved in the Law of Transboundary Water since 2010 after playing an active role towards her country, Nigeria, becoming a party to the UN Watercourses Convention. From then she became interested in InternationalWater Law and proceeded to complete an LL.M program in Water Law at the University of Dundee, Scotland in 2015. She is a lawyer by profession and currently a State Counsel with the Federal Ministry of Justice Abuja, Nigeria. Deepika Padmanabhan is a graduate student in the Politics department at NewYork University. She also has an M.A. in International Law from the School of Advanced International Studies, Johns Hopkins University. Previously, she worked on inter- national education at Bridge International Academies and on development at the Coalition for Human Rights in Development Richard K. Paisley is Director of the Global Transboundary International Waters Governance Research Initiative at the University of British Columbia, IAR, in Vancouver, Canada. His current research, teaching, graduate supervision and advisory interests include: international and national water and energy law, international and national environmental and natural resources law, negotiations, environmental conflict resolution and international business transactions. Richard has worked throughout Africa, Asia and the Americas and published extensively in the scholarly academic literature. CicelyO.ParseghianspenttenyearsasanenvironmentalattorneyatFoleyHoagLLP, where she worked extensively with scientific and technical experts in various disputes before the International Court of Justice, including Pulp Mills on the River Uruguay (Argentina v. Uruguay); Aerial Herbicide Spraying (Ecuador v. Colombia); Certain Activities Carried Out by Nicaragua in the BorderArea (Costa Rica v. Nicaragua); and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica). She also worked with such experts in arbitrations before the International Centre for the Settlement of Investment Disputes, including regarding the environmental and social impacts of gold mining and natural gas projects, as well as the economics and effectiveness of tobacco control regulations. Götz Reichert is Head of the Department on Environment, Energy and Climate Change at the Center for European Policy in Freiburg, Germany and a former legal consultant of the Legal Department of the World Bank in Washington D.C., USA. Dr Reichert’s research focuses on the relationship between international law and the law of the European Union and its member states. In this respect, his recent publications feature a monograph on Transboundary Water Cooperation in Europe. Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:4/ Date:4/12 JOBNAME:EE10McCaffrey PAGE:12 SESS:6 OUTPUT:ThuDec1308:49:432018 xii Research handbook on international water law Alistair Rieu-Clarke is a Professor at Northumbria Law School, Newcastle. His research, teaching and consultancy activities focus on exploring law’s contribution to ensuring that international watercourses are managed in an equitable and sustainable manner. His recent publications have included a User’s Guide related to the UN Watercourses Convention, and several journal papers that have explored the procedural aspects of large-scale infrastructure projects on transboundary rivers, such as the Mekong and the Nile. Anna F.S. Russell is a visiting fellow at the Faculty of Law at the University of Oxford. She was formerly a supervising attorney at the Harvard Human Rights ProgramandtheLouwesfellowandlectureratOxford.Shehasadoctorateinlawfrom Oxford and has published widely in the fields of public international law and international development. She is a barrister and solicitor of the Law Society of Upper Canada,andhasworkedextensivelyinLatinAmerica,Africa,EasternEuropeandAsia. Salman M.A. Salman is the Editor-in-Chief of InternationalWater Law journal, and a Fellow with the International Water Resources Association (IWRA). Until 2009, he served as theWorld BankAdviser onWater Law and Policy. Prior to that he worked as a Legal Officer with the International Fund forAgricultural Development of the United Nations (IFAD) in Rome, Italy, and taught law at the University of Khartoum in Sudan. Dr Salman is the recipient of the IWRA Crystal Drop Award 2017, and has published extensively on issues related to water law and policy. Stephen M. Schwebel served as a Special Rapporteur on the law of the non- navigational uses of international watercourses of the UN International Law Commis- sion. He was a judge of the International Court of Justice 1981–2000 and president of the Court 1997–2000. He served as the presiding arbitrator in the Indus Waters Kishenganga Arbitration between Pakistan and India. AttilaTanzi,Ph.D.,ChairofInternationalLawattheUniversityofBologna;Chairman oftheComplianceCommitteeoftheUNECE1992WaterConvention;aMemberofthe PCA, a Member of the PCA specialised list of arbitrators for environmental disputes, Conciliator at the OSCE Court of Conciliation andArbitration; Counsel or arbitrator in various inter-state and investment; adviser to governments and international organ- izations. He has held numerous academic positions at home and abroad and published extensively in English, Spanish, French and Italian. A. Dan Tarlock received an A.B. and LL.B. from Stanford University, and he is currently University Distinguished Professor Emeritus, Illinois Tech Chicago-Kent of Law. He has taught, lectured and written widely in the fields of United States, comparative, and international water law, with an emphasis on aquatic ecosystem conservation and climate change adaptation. Mara Tignino is Reader at the Faculty of Law and the Institute for Environmental Sciences of the University of Geneva and Coordinator of the Platform for International Water Law at the Geneva Water Hub. She holds a Ph.D. in International Law from the Stephen C. McCaffrey, Christina Leb and Riley T. Denoon - 9781785368080 ColumnsDesignXMLLtd / Job:McCaffrey-Research_handbook_on_international_law / Division:00aPrelims /Pg.Position:5/ Date:29/11