Cooperation in the Law of Transboundary Water Resources

Cover
Title page
Copyright page
Contents
Acknowledgements
Table of treaties
Table of cases
	Central American Court of Justice
	European Court of Human Rights
	Human Rights Committee
	Inter-American Court of Human Rights
	International Arbitration Tribunals
	International Court of Justice
	Neutral Expert (Indus Waters Treaty 1960)
	Permanent Court of International Justice
List of abbreviations
Introduction
Part I Acknowledging interdependence
	1 Cooperation between sovereign States
		1.1 The nature of water
			1.1.1 The water cycle
			1.1.2 Human intervention and interdependence
			1.1.3 Addressing hydrologic interdependence through cooperation
		1.2 State motivation for cooperation
			1.2.1 Elements intervening in the choice to cooperate
				State concern for security and power
				Historical theories and political interest
				Benefit optimisation
				Hydrologic conditions as a source of aligning and competing interests
			1.2.2 Factors contributing to the use of law in State cooperation
				Larger gains through transparency
				Reciprocity
		1.3 The nature of cooperation in international law
			1.3.1 Good faith as an essential assumption
			1.3.2 Evolution of cooperative coexistence of States
			1.3.3 Changing paradigms
				Concepts of sovereignty
				The evolving character of sovereignty
		1.4 Conclusion
	2 Development of international water law
		2.1 Sovereignty over shared water resources
			2.1.1 Absolute territorial theories
				The theory of absolute territorial sovereignty
				The theory of absolute territorial integrity
				Mutual exclusiveness of absolute theories
			2.1.2 Limited territorial sovereignty over shared resources
			2.1.3 A community of interest?
		2.2 Expansion of normative reach
			2.2.1 Expansion via navigation
			2.2.2 Continued efforts in multilateral codification
				Beginning of ‘universalisation’ by the League of Nations
				The work of the International Law Commission
				Interaction between universal instruments and treaties at the regional and basin levels
			2.2.3 Widening thematic scope
		2.3 Conclusion
Part II A general duty to cooperate: What does it mean?
	3 The duty to cooperate and concurrence of principles
		3.1 The general duty to cooperate
			3.1.1 Crystallisation of an autonomous duty
				Codification by scientific commissions
				Codification by the International Law Commission
				The legal nature of the general duty to cooperate
			3.1.2 Terms and objectives of the general duty to cooperate
				Basic principles and elements of cooperation
				Objective of the general duty according to codifications of universal rules
		3.2 Considering legitimate interests of others
			3.2.1 The principle of equitable and reasonable utilisation
				Multiple factors and subjective objectives
			3.2.2 Implementation of the principle
				Equitable participation
			3.2.3 Inter-generational equity
		3.3 Minimising negative impact on others
			3.3.1 Good neighbourliness
				Protection of the environment
			3.3.2 Implementation of the principle: Obligation not to cause significant harm
				Relationship with the principle of equitable and reasonable utilisation
		3.4 Conclusion: A triangle of principles?
	4 Informing cooperation
		4.1 Procedure void of substance?
			4.1.1 Procedural and substantive law
			4.1.2 The procedural and substantive content of specific cooperation obligations
			4.1.3 Importance of comprehensive reading
		4.2 Informing the process
			4.2.1 Regular data and information exchange
				Evolution of the duty
				Quality and content of data provided
				Availability of data and the duty to collect
				Timing and frequency of data exchange
				Information exchange upon request
			4.2.2 Notification of emergencies
				When and whom to notify
				Duty to minimise damage
				The case of pollution
			4.2.3 Notification of planned measures
				Timing of notification
				Whom to notify?
				Content of notification
				Related obligation to suspend implementation
		4.3 Identifying mutual benefits and competing interests and rights
			4.3.1 Consultation
				Related duty: Taking interests of others into account
			4.3.2 Negotiation
				Negotiation as a customary obligation
				The right to participate in negotiations
				Obligation to reach agreement
			4.3.3 Conclusion of treaties
		4.4 Conclusion
	5 Adoption of joint measures
		5.1 Protection and development of shared waters
			5.1.1 Coordination for water quality control
				Quality and emission standards
				The coordination process
				Monitoring and warning systems
				Navigation and pollution
				Groundwater
			5.1.2 Ecosystem management and protection
				Management of fish resources
				Protection of ecosystems from invasive species
				Water supply and flow control benefit from healthy ecosystems
			5.1.3 Flow regulation and joint infrastructure
				Intervention in natural flows
				Treaty practice with respect to minimum flow
				Flow regulation through joint infrastructure projects
		5.2 Institutional frameworks for cooperation
			Structure, design and functional role with respect to cooperation
			5.2.1 Platforms for dialogue, planning and operation
			5.2.2 Enhancing and widening cooperation
			5.2.3 Ensuring compliance
				Enhancing compliance through data exchange
				Facilitating compliance through technical assistance
			5.2.4 Preventing and settling disputes
		5.3 Conclusion: Managing complexity through joint action
Part III Dealing with evolving challenges
	6 International protection of vital human water needs
		6.1Vital human water needs - an issue worthy of legal protection
		6.2 Emerging protection under international water law
			6.2.1 Protection through the obligation not to cause significant harm and the principle of equitable utilisation
			6.2.2 Increasing attention in legal instruments
				At the universal level
				At the regional and basin level
				Recognition in jurisdiction
		6.3 Enforcing satisfaction of vital human needs
			6.3.1 Enforcement of the human right to water
				Increased protection through recognition as a self-standing right?
				Limited geographic reach of human rights enforcement mechanisms
			6.3.2 Alternative enforcement avenues
			6.3.3 International obligations under human rights law
				Extraterritorial and international human rights obligations
				International cooperation obligations
				Content of international obligations
		6.4 Conclusion
	7 Emerging international cooperation on global water challenges
		7.1 Hydrologic effects of climate change
		7.2 Appreciation of hydrologic variability in international water law
			7.2.1 Flexibility in principle(s)
			7.2.2 The role of treaties in facilitating flexibility to adjust for hydrologic variability
			7.2.3 Norms and mechanisms facilitating adaptation
				Required conduct based on pre-identified changes
				Obligations of conduct that set in motion previously undetermined adaptive behaviour
				Coordination within the framework of joint mechanisms
		7.3 Appreciation of water (law) in climate change law
			7.3.1 Lack of recognition?
			7.3.2 The UNFCCC framework
				The concept of common but differentiated responsibilities
				Differentiated responsibilities for mitigation and adaptation
				Institutionalisation of global assistance with benefits at the basin level
			7.3.3 Differentiation as a challenge to cooperation
				The need for revised differentiation
				Lessons from international water law
		7.4 Conclusion: Complementarity of systems and consideration of the hydrologic cycle as a whole
Conclusion
Annex: Consideration of cooperation in international water treaties
	Methodology
	Definition of categories
	Outcome of analysis
Bibliography
Index