Abstract
The discussion in this chapter is based on the normative guidelines put forth by international law. These guidelines call for optimal and sustainable management, taking into account the human rights perspective.1 They require careful balancing of conflicting demands by the decision-making bodies. Hence the importance of the decision-making process in reducing the possibilities of skewed or uninformed decisions. Hence, too, the potential contribution of jointly run institutions for water management which have procedural guarantees that protect them from capture by interest groups and ensure informed and impartial decisions.
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Notes
See Eyal Benvenisti, Standards or Rules? The Definition of Water Rights in Joint Management Of Shared Aquifers: The Fourth Workshop, 61-75 (M. Haddad & E. Feitelson, eds., 1997).
For a similar suggestion in the context of U.S. state law, see The Regulated Riparian Model Water Code 200 (Joseph W. Dellapenna Ed., 1997) (“The Regulated Riparian Model Water Code’s most fundamental departure from the common law of riparian rights is the requirement that, with few exceptions, no water is to be withdrawn without a permit issued by the State Agency under the Code.”)
Eliminating the possibility of granting property rights does not preclude the option of establishing trade in transboundary resources. The trade could be effected through market exchange of revocable permits, issued periodically by the institutions that manage these resources.
Article 60 of the 1969 Vienna Convention on the Law of Treaties.
Under Article 62(1) of the 1969 Vienna Convention on the Law of Treaties, a party may not unilaterally withdraw from its treaty obligations except under very strict conditions. This party must show, inter alia, that “a fundamental change of circumstances has occurred with regard to those existing at the time of the conclusion of the treaty, and which was not foreseen by the parties.” (See also the decision of the International Cout of Justice in the Gabcikovo-Nagymaros case: International Court of Justice, Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997), rep. in http://www.ici-cii.org/idocket/ihs/ihsiudgement/ihsiudframel.htm: 37 ILM 167 (1998), at para. 104). In most cases, the change in water demand or supply would be incremental, quite foreseen by the parties to the agreement over the initial allocation.
For a discussion of that claim which was raised by the Hungarian government, see the Gabcikovo-Nagymaros case, supra note 5, paras. 49-59.
Note that treaties that pertain to shared resources would be considered “localized treaties” and therefore also survive state succession. See Article 12 pf the 1978 Vienna Convention on Succession of States in Respect of Treaties, which was recognized by the ICJ as reflecting customary law and applied to the 1977 treaty in the Gabcikovo-Nagymaros case (supra note 5, at paras. 122-23.
The agreement signed in 1977 between the Hungarian’s People’s Republic and the Czechoslovak People’s Republic provided for the construction and operation of a system of locks on the Danube River, between Gabcikovo (in Czechoslovak territory) and Nagymaros (in Hungarian territory), which would allow for diversion canals and two hydroelectric power plants. The project was to be financed, constructed and operated jointly, on an equal basis.
The decision contains a number of important developments to the doctrine on international freshwater which are irrelevant to this Chapter.
And perhaps also provide what they perceive as an appropriate ad-hoc solution, noticing the less than catastrophic outcomes of the “provisional solution,” as implemented by Slovakia.
Supra note 5, at para. 147.
Supra note 5, paras. 132-147. Judge Bedjaoui criticizes this evolutionary interpretation: see his separate opinion at http://www.icj-cij.org/idocket/ihs/ihsjudgement/ihsjudframel.htm.
On these prerequisites see Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 American Journal of International Law 384,409-11 (1996).
Daniel C. Esty, Revitalizing Environmental Federalism 95 Mich. L. Rev. 570, 625 (1996) (“Bureaucrats in Washington … cannot know the future land use of a contaminated waste site as well as those in the community where the site is located. In deciding “how clean is clean enough,” local judgment is essential.”)
Esty, id., id.
For the experience in New Zealand in this respect see Lloyd Burton & Chris Cocklin, Water Resource Management and Environmental Policy Reform in New Zealand: Regionalism, Allocation, and Indigenous Relations, 7 COLO. J. Int’L. Envtl. L. & Pol’Y 75 (1996) (describing the new Resource Management Act of 1991 that devoluted responsibility to the communities most directly affected by the decisions related to the natural resources; organizing communities on the basis of watershed boundaries).
Maria Teresa Ponte Iglesias, Les accords conclus par les autorites locals de different Etats sur l’utilisation des eaux frontalieres dans le cadre de la cooperation transfrontaliere, Schweizerische Zeitschrift Fuer Internationales Und Europaeisches Recht 103, 129-130 (2/1995); Ulrich Beyerlin, Transfrontier Cooperation between Local or Regional Authorities, Encyclopedia Of Public Int’L L (Installment 6) 350; Pierre-Marie Dupuy, La cooperation regionale transfrontaliere et le droit international 23 Annuaire Francaise de Droit International 837 (1977). See also the New-York-Quebec Agreement on Acid Precipitation (1982), rep. in 21 ILM 721 (1982).
The originals are both in Arabic and Hebrew. My translation follows: “ Letter of Intent The District of Tul-Karem, the Municipality of Tul-Karem and Emek Hefer Regional Council recognize the acute necessity to promote and protect the environment, for the protection of the water we drink and the soil we cultivate. For the benefit of the inhabitants of Tul-Karem and environs, the Hefer Valley and environs. It was therefore decided to establish a steering and planning committee, which will be entrusted with supplying mutual expert solutions to resolve the problems in the short and immediate term and in the long term. Those who stand at the helm will jointly work for obtaining funding and consent from international bodies, in an effort to realize the plans and to implement them.” The written text, in both languages, was prepared in advance by Emek Hefer Regional Council Head Mr. Itzkovic. He was accompanied by Mr. Abu-To’ama, the mayor of an Arab municipality in Israel, who made the initial contacts. Mr. To”ama also signed the letter. The envisioned plans are rather ambitious and complex, and include sewage-treatment facilities to be constructed with international financing on West Bank territory, supplying the treated water for Palestinian agricultural use.
Mladen Klemencic, The Effects of War on Water and Energy Resources in Croatia and Bosnia in The Peaceful Management Of Transboundary Resources (Gerald H. Blake Et Al. Eds., 1995)
Negotiations over a similar sewage treatment facility are under way in another small catchment area further south, in which a few Israeli towns and the Palestinian-controlled town of Qalqilia are situated (Ha’aretz, 1 March, 1998). It seems that such a functional approach is nowhere more appropriate than in politically divided cities such as Jerusalem or Nicosia. Jerusalem remains the only major metropolitan area in Israel whose wastewater flows untreated, which is evidence of the immense political obstacles to a proper solution. Nicosia, however, although torn between the Greeks and the Turkish Cypriots, continues to benefit from the joint operation of a sewage system constructed before the division of the city. For options for low-key yet crucial joint ventures for Jerusalem, and a description of the Nicosian model, see Eran Feitelson & Qasem Hassan Abdul-Jaber, Prospects For Israeli-Palestinian Cooperation In Wastewater Treatment And Re-Use In The Jerusalem Region ( 1997).
See Eyal Brill, Applicability And Efficiency Of Market Mechanisms For Allocation Of Water With Bargaining 102 (Ph.D. dissertation, submitted to the Senate of The Hebrew University of Jerusalem, 1997) (in Hebrew).
See Draft United Nations Declaration on the Rights of Indigenous Peoples, adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Commission on Human Rights, August 26, 1994 (rep. in 34 I.L.M. 541 (1995)), which recognizes the value of water resources to indigenous peoples’ social structure, culture and tradition (see the Preamble). The draft Declaration sets out to ensure inter alia the indigenous peoples’ right to maintain and strengthen their relationship with their land, territories, waters and other resources (Article 25), to own and to manage these resources (Article 26), and their right to participate in decisions affecting these resources. See also Benedict Kingsbury, Claims by Non-State Groups in International Law 25 Cornell Int’L L. J. 481(1992).
On Indigenous people and participation in the management of natural resources see note
supra and Timothy P. Duane, Community Participation in Ecosystem Management, 24 Ecology L.Q. 771 (1997).
Esty, supra note 14, at 652 (“[T] the diversity of environmental problems we face demands a range of regulatory response strategies and levels of governmental activity.”)
See the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, ETS No. 106, Madrid, 21 May 1980, rep. in http://www.coe.fr/eng/legaltxt/106e.htm (framework convention adopted by the Council of Europe). See also Dupuy, supra note 17, at 860 (“Moins que jamais, la frontiere n’apparait comme une ligne de partage brutale des competences étatiques. Elle désigne au contraire une zone privilégiée de la collaboration des populations et des leurs représentants.”). See also Agenda 21, Chapter 18, principle 18.12 (o)(i) (recommending, “as appropriate,” to develop and strengthen mechanisms at all levels concerned, including “at the lowest appropriate level.” such as “the decentralization of government services to local authorities, private enterprises and communities.” rep. in 4 Agenda 21 & the UNCED Proceedings (Nicholas A. Robinson, ed., 1992), 357).
Ponte Iglesias, supra note 17, at 122-124; Dupuy, supra note 17, at 852; Beyerlin, supra note 17, id.
Andrew Hurrell & Benedict Kingsbury, Introduction in The International Politics of the Environment (Andrew Hurrell & Benedict Kingsbury Eds., 1992) (flexibility because knowledge develops over time).
See Barbara Koremanos, Charles Lipson and Duncan Snidal, Rational International Institutions (Rational International Institutions Project www.harisschool.uchi) (suggesting that two kinds of flexibility are necessary: flexibility of the norms and the institutional procedures to enable it to modify its work).
See Benvenisti, Collective Action, supra note 13, at 404-05. On relational contracts see Ian R. Macneil, The New Social Contract (1980); id., The Many Futures of Contract, 47 S. Cal. L. Rev. 691 (1974); id. Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a “Rich Classifwatory Apparatus,” 75 NW. U. L. Rev. 1018 (1981); Charles J. Goetz & Robert E. Scott, Principles of Relational Contracts 67 VA. L. Rev. 1089 (1981); Alan Schwartz, Relational Contracts in the Courts: An Analysis of Incomplete Agreements and Judicial Strategies 21 J. LEG. Stud. 271 (1992).
Article 6 of the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International lakes, rep. in 31 ILM 1312 (1992).
See, with respect to shared freshwater, Article 8 of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted on May 21, 1997), rep. in 36 ILM 700 (1997) (“the Watercourses Convention”).
See Article 3(5) of the Watercourses Convention, supra note 27; Articles 6, 7 of the Institute of International Law’s Resolution on the Utilization of Non-Maritime International Waters (Except for Navigation) Adopted at its session at Salzburg (September 3-12, 1961) (49 (II) Annuaire De L’Institut De Droit International, 370 (1961) (trans, in 56 AJIL 737 (1962 On the duty to negotiate in good faith see e.g. Julio A. Barberis, Bilan de recherches de la section de langue francaise du Centre d’etude et de recherche de l’Académie in Centre For Studies And Research 1990, Rights And Duties Of Riparian States Of International Rivers 15, 54-55; Janos Bruhacs, The Law Of Non-Navigational Uses Of International Watercourses 176-8 (1993). Charles B. Bourne, Procedure in the Development of International Drainage Basins: The Duty to Consult and to Negotiate 10 Can. YB. Int’L L. 212, 224-233 (1972). Dominique Alhertiere, Settlement of Public International Disputes on Shared Resources: Elements of a Comparative Study of International Instruments 25 Nat. Res. J. 701 (1985).
See Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’LOrg. 1 (1992).
Paragraph 143 of the decision, supra note 5. The ICJ was referring to the assistance and expertise offered by the Commission of the European Communities to settle the dispute.
Rep. in 31 ILM 1312(1992).
Article 16. See also Agenda 21, Chapter 18 (on freshwater resources), Principle 18.12(p) (concerning the dissemination of information as one of the means to improve integrated water management), supra note 25, at 366.
See James D. Fearon, Deliberation as Discussion, in Deliberative Democracy 44, 56 (Jon Elster ed., 1998). This trend has in recent years been developed following J? rgen Habermas’s The Theory Of Communicative Action (vol. 1,1984; vol. 2, 1987).
As the term coined by the U.S. Supreme Court in the case of United States v. Carolene Prods. Co. 304 U.S. 144, 152-53 n.4 (1938). On this consideration see also infra note 59 and accompanying text.
The literature on Public Choice discusses the failure of various groups — among them women, consumers, future generations — to exert influence on the political process and the possible legal responses to this phenomenon: see e.g. Daniel A. Farber & Philip P. Frickey, Law And Public Choice (1991). The problem is exacerbated in the international context: see Eyal Benvenisti, Exit and Voice in the Age of Globalization 98 Michigan Law Review 167(1999).
General comment under Article 40 (4) of the ICCPR No. 23/50, adopted on 6 April 1994. Doc. CCPR/C2l/Rev.l/Add.S., rep. in 15 Hum. Rts. L. J. 234-236 (1994) (hereinafter: “HR Committee General Comment”), at 236.
Council of Europe’s Framework Convention for the Protection of National Minorities, 1995 (rep. in 34 I.L.M. 351 (1995), Article 1(2), 1(3); Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, United Nations G.A. Res. 47/135, 18 December 1992 (rep. in 32 I.L.M. 911 (1993); Draft UN Declaration on the Rights of Indigenous Peoples, adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities on 26 August, 1994 (rep. in 34 I.L.M. 541 (1995).
Florence Benoit-Rohmer & Hilde Hardemari, The Representation of Minorities in the Parliaments of Central and East European Europe 2 International Journal On Group Rights 91, 94 (1994) (In these recent constitutions, there is a recognition of the right to participate in public life, but only the new Romanian constitution ensures in Article. 59 the mandatory representation of at least one seat for each group of citizens belonging to national minorities. Lithuania and Poland have specific provisions lowering threshold requirements for parties representing minorities (id., at 100).
See the decision of the Bulgarian Constitutional court no. 1/1992, of 21 April, 1992, English summary in ( 1992) European Current Law Year Book 304 (the right of a party representing a minority to take part in the general elections) For background to this case see Slavi Pashovski, Minorities in Bulgaria, in The Protection Of Ethnic And Linguistic Minorities In Europe 67, 70-75 (John Packer & Kristian Miyntti eds., 1993); In Croatia: Decision of 14 December, 1994, summarized in Bulletin on Const. Case-Law 223 (1994) (concerning participation in parliamentary voting); Decision of 2 February, 1995, summarized in Bulletin on Constitutional Case-Law 18 (1995) (the power of a county to determine minority rights). In Romania: decision of 18 July, 1995, summarized in Bulletin On Const. Case-Law 188 (1995) (approving the constitutionality of the proposed education act which provided a proportional representation of professors and teachers of minority groups in the administrative bodies of educational institutions).
Kevin Stairs & Peter Taylor, Non-Governmental Organizations and the Legal Potection of the Oceans: A Case Study, in, The International Politics Of The Environment 110 (Andrew Hurrell & Benedict Kingsbury Eds., 1992) (describing the contribution of environmental NGOs in the development and implementation of international agreements on environment protection); Kal Raustiala, Note: The “Participatory Revolution” in International Environmental Law, 21 Harv. Envtl. L. Rev. 537 (1997) (describing NGOs as “major actors in the formulation, implementation, and enforcement of international environmental law.,” and argues that states benefit from NGOs informational and legitimation services).
Lee p. Breckenridge Nonprofit Environmental Organizations and the Restructuring of Institutions for Ecosystem Management 25 Ecology L.Q. 692 (1999) (pointing out that NGOs “constitute a logical place for governmental out-sourcing for technical, resource management, training and other work.”). An extensive listing of recent publications addressing the formation in the US of partnerships between governmental and non-governmental groups in the environmental field may be found in Kris Bronars and Sarah Michaels, Annotated Bibliography on Partnerships for Natural Resource Management (1997), available at <http://www.icls.harvard.edu/ppp/contents.htm> (the web site is maintained by the Institute for Cultural Landscape Studies of the Arnold Arboretum, Harvard University).
Declaration of the UN Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Principle 10 (emphasis added).
Agenda 21, supra note 25, Principle 18.9(c).
Id., Principle 18.12(n). See also Allen Hey, Sustainable Use of Shared Water Resources: The Need for a Paradigmatic Shift in International Watercourses Law, in The Peaceful Management Of Transboundary Resources 127, at 133 (Gerald S. Blake Et Al. Eds., 1995).
Treaties that provide standing to NGOs as observers include the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, Article 11 (5); 1992 Framework Convention on Climate Change, Article 7(6); 1973 Convention on International Trade in Endangered Species of Wild Flora and Fauna, Article XI (7).
NAFTA’s North American Agreement on Environmental Cooperation (incl. standing to complain against a state for failing to enforce domestically: Raustiala, 25 Envtl. L. 31 (1995); id, 36 Va. J. Int’l L. 721 (1996).
Adopted by the Meeting of the Parties to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes at Helsinki (Finland) on 4 July 1997 (Report of the First Meeting, ECE/MP. WAT/2), at 17.
See Hey, supra note 48, at 134-5.
See Alan Boyle, The Role of International Human Rights Law in the Protection of the Environment in Human Rights Approaches To Environmental Protection 43, 59 (Alan E. Boyle & Michael R. Anderson Eds., 1996).
See Boyle, id., at 59-63; James Cameron & Ruth Mackenzie, Access to Environmental Justice and Procedural Rights in International Institutions in Human Rights Approaches supra note 54, at 129, (esp. 134-135); Sionaidh Douglas-Scott Environmental Rights in the European Union — Participatory Democracy or Democratic Deficit? in Human Rights Approaches, supra note 54, at 109,112-20.
Lee P. Breckenridge Nonprofit Environmental Organizations and the Restructuring of Institutions for Ecosystem Management 25 Ecology L.Q. 692, 698 (1999) As non-profit organizations gain increasing influence in the management and allocation of natural resources, taking on functions that are both more governmental and more entrepreneurial, questions of accountability and fairness are bound to arise.. See Burton A. Weisbrod, The Future of the Nonprofit Sector: Its Entwining with Private Enterprise and Government, 16 J. Pol’y Analysis & Mgmt. 541 (1997) (Success of NGOs produces growing demands for accountability).
See also Francois du Bois, Social Justice and the Judicial Enforcement of Environmental Rights and Duties in Human Rights Approaches To Environmental Protection (Boyle & Anderson Eds., 1995), 153, at 173-74.
See Eyal Benvenisti, Margin of Appreciation, Consensus and Universal Standards, 31 NYU Journal Of International Law And Politics 843 ( 1999).
Compare Francesco Capotorti’s widely accepted definition of minorities as: “[a] group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members — being nationals of the State — possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.” (Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/384/Rev.l (1979), at 96).
John Hart Ely, Democracy And Distrust (1980). See also Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L. J. 1287 (1982); Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985); Owen M. Fiss, The Supreme Court, 1978 Term — Forward: The Forms of Justice, 93 Harv. L. Rev. 1 (1979).
In the case of Lansman et al. v. Finland (Communication No. 671/1995, 28 August 1995, UN Doc. CCPR/C/58/D/671/1995 (1996)), which addressed Finnish development plans in an area used by the Sami minority, the HRC emphasized that its decision in not based on reference to a margin of appreciation (at para. 9.4).
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Benvenisti, E. (2001). The Legal Framework of Joint Management Institutions for Transboundary Water Resources. In: Feitelson, E., Haddad, M. (eds) Management of Shared Groundwater Resources. Natural Resource Management and Policy, vol 18. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-0680-4_22
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