Sea Control - Sea Control 357 - Artificial Waterways in International Water Law with Dr. Tamar Meshel

Episode Date: June 26, 2022

Links1. "Artificial Waterways in International Water Law: An American Perspective," by Dr. Tamar Meshel, Vanderbilt Journal of Transnational Law, December 13, 20212. Sea Control 224 - Clashes at Sea with Dr. Sara Mitchell, by Jared Samuelson, CIMSEC, January 24, 2021. 

Hey folks, it's Jared. This will be our second policy legal type podcast this week. So I'm joined today by Dr. Tamar Meshel, and we'll be discussing her article on artificial waterways and international water law. This episode was edited and produced by Alexia Boulaghi. I'd like to pause here to highlight our local chapters, whether you're in Singapore, Lagos, Nigeria, Germany, the UK, Yokosuka, Japan, Chicago, or Newport, chances are there's a SimSec local chapter near you. You can find a full listing of our local chapters and contact information on our website at simsec.org, so go ahead and reach out if you want to get involved. Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast

Network, The Bilge Pumps. You can find Alex, Jamie, Drack, and a pile of iron brew bottles wherever you download your podcasts. And with that, Kimber's Men. You're listening to Sea Control, posted by the Center for International Maritime Hello Hashimites and welcome back to Board Seat Control. My guest today is Dr. Tamara Michel and we're going to be discussing her article in the Vanderbilt Journal of Transnational Law entitled Artificial Waterways, International Water Law and American Perspectives. So Tamara, thank you for joining us. Could you tell listeners a little bit more about your background, please? Sure, and thanks so much for having me. I'm an assistant professor at the University of

Alberta Faculty of Law in Edmonton, Alberta, Canada. I research mostly international water law and domestic and international arbitration. Well, thank you again for joining us. As a reminder to the listeners, all opinions are our own and not reflective of any institution with which we may be otherwise associated. As I ponder this topic here, there is a possibility of somebody asking a question like, why would you discuss this? Because I'm going to read through a list of some notable waterways that could be potential drivers of conflict. And we did an episode earlier, I forget the number exactly, with Dr. Sarah Mitchell talking about conflict drivers in the maritime domain. And I think these waterways might qualify. So you have the Glory

River, Glory Canal, Prosperity Canal between Iran and Iraq, the Indus River Canals between India and Pakistan, the Mekong River Canals, China, Vietnam, multiple other countries, the North Crimea Canal, perhaps have some interest right now between Ukraine and Russia, the Saima Canal between Finland and Russia, and the Augustus Canal between Poland and Belarus. So a lot of artificial waterways that could be a source of potential tension, conflict in the future. But Tamara, I'll turn it over to you now. Why did you decide to address this topic? Oh, that's exactly right. So as we can hear from your list, artificial waterways are really nothing new in the world. We've been using them for thousands of years, you know, to divert water

to where it's needed, control flooding, etc. But they are becoming increasingly more common, partially as a result of climate change. There is water scarcity in various regions. There's changing water availability. And, you know, when artificial waterways cross borders between states, as they sometimes do they can be the subject of disputes just like natural waterways but the problem in my view anyway in current international water law which i'll talk about in a bit is that the status of these transboundary artificial waterways is not really clear so are they subject to the same legal principles as naturally occurring transboundary waterways or different legal principles or maybe no principles at all if you know we exclude them from the scope of

international water law altogether and you know when you think about well artificial waterways are they different from natural waterways or not on the one hand you could argue that what in the transboundary context they shouldn't really it shouldn't really make a difference if a cross-border waterway is natural or artificial and either way it should be subject to international The water law, because, you know, water is mobile, it's fluid, it has a hydrological unity to it, right? So water, you know, it evaporates into the air, it falls from the sky, it sinks into the ground, and so on and so forth. And with no real regard to states' political boundaries or whether it flows in natural or artificial channels. So, you know, why make a distinction?

On the other hand, you know, you could argue, well, there is a proprietary interest of some kind that attaches to an artificial waterway that certainly doesn't really apply to naturally occurring waterways that are not man-made. And also at the international level, you can say that artificially linking entirely domestic waterways, thereby causing them to artificially cross a state boundary, should really not change in the end of the day, their domestic nature and should not make them subject to international law. And, you know, this is not only a theoretical discussion, because actually, as we speak, there is a dispute pending before the International Court of Justice between Bolivia and Chile concerning the Silala River that crosses the border between those two countries. And one of the issues before the court is actually the at least partially artificial nature of this river and the impact of its artificial nature on its status in international water law. So definitely a live issue. How are you defining an artificial waterway in this instance? So for the purpose of my present research and the paper, it's simply a waterway that is in some way man-made. And so an artificial waterway can be created in one of three ways.

it can be an entirely artificial water body, so like an artificial lake that is completely independent, unconnected to any existing natural water body. And I'm less concerned with these because they tend to be smaller, more local, and are less likely to raise transboundary issues. But the second and third ways in which you could create an artificial waterway, which I'm more concerned with uh for present purposes is either by artificially altering a natural water course so for instance by diverting it artificially or by as i already mentioned artificially connecting to otherwise you know separate natural waterways and again the silala dispute is interesting because it kind of engages both of these ways of of potentially creating an artificial waterway

that is transboundary because Bolivia's argument originally when the dispute was submitted to the court a few years ago seemed to be that the Silala is entirely artificial and so you know it was created a hundred years ago or so by canalization Bolivia's position was and and so the the water was essentially transported artificially from Bolivia to Chile making it entirely artificial But now that the memorials are actually public, and actually the oral arguments were just concluded a few weeks ago before the ICJ, it seems that Bolivia's position has changed a little bit. And now what I understand it to be arguing is that it accepts that the Silala actually crosses the border naturally, originally was a natural river, but it's arguing that its flow has been artificially enhanced. and that enhanced portion of the flow belongs exclusively to Bolivia and therefore is not governed by international water law principles. Can you explain what you mean by the phrase

artificially enhanced? Are you talking about that they've increased the flow of the river in some way? Yeah, exactly. So it's very complicated. There's a lot of evidence in this case that is not really legal in nature, but more hydrological and scientific. And my understanding is exactly so this canalization that was done by actually a private company with the consent of Bolivia about 100 years ago essentially what Bolivia is I understand it to be saying is it used to be a much weaker flow much less water used to cross the border and guess what now you have a lot more water because of these artificial improvements that we did or this company did with our consent to the flow and so you don't really we shouldn't really share all of it what we have

artificially enhanced belongs to us and the only thing that we should share is what was originally there naturally and so they still even though they are no longer again to my understanding no longer are arguing that the entire thing is artificially created they are requesting the court to draw this distinction between what is artificially done and therefore not subject to international water law and exclusively belongs to Bolivia and what was always naturally there that of course everybody agrees should be subject to international water law. Can you tell us a bit more about the history of international water law? Yeah so international water law also known as the law of international watercourses essentially deals with non-navigational uses of watercourses that are shared by two or

more states or countries. So these non-navigational uses include irrigation, drinking, hydropower production, etc. And so the first thing that's important to note is that this body of law should distinguished from other bodies of international law governing navigation maritime issues law of the sea all of those and when you look at international water law that govern non-navigational uses the basic principle is called limited territorial sovereignty so really what this body of law does is it restricts the territorial sovereignty of states over transboundary water that flows in their own territories and it does this in three ways or three principles first of all states that share a transboundary water course have to share it in an equitable and

reasonable way these are the other states sharing that same water course they have to avoid causing significant harm to those other states and to the environment and to the resource itself and they have to cooperate by exchanging information periodically and notifying of planned measures and the idea underlying all of these principles is that well there's some kind of community of interest among these states that share these resources so all of them are equal no state is to be preferred over the other in terms of water rights or water usages and so when you think about it to say that a particular transboundary waterway so one that crosses the border is not governed by this body of law or these principles because of its artificial nature

could have serious implications or consequences because really what you're saying is you're leaving it to be protected by domestic laws of these states that are sharing it and that those laws may or may not be you know on par with international law they may be weak they may be lacking. And you could also trigger a race between these states to use the water before it is depleted because they know that there's really no comprehensive unified regulation by international law over this resource. So why are you examining American water law principles in this paper? And then what limitations are there to using American water law principles to examine international water law? So I guess it's worth clarifying that what I'm not suggesting, I guess, let's start with

that, is that domestic legal principles should just be copy pasted into international water disputes or directly applied. What I am proposing is, you know, you can look at or examine the experience of domestic courts and draw general insights from how they solve problems that concern artificial waterways, that the same problems exist at the international level, but we currently don't have the tools at the international level to deal with them appropriately. I look at American water law and particularly the jurisprudence of American courts, I guess, for two reasons. First is that international water law is very familiar with American water law because some principles of international water law, for instance,

the equitable and reasonable utilization principle I referred to, were actually derived originally from the jurisprudence of the U.S. Supreme Court in interstate water disputes in the United States. And secondly, American water law is a useful case study because it has a rich jurisprudence in the water realm and about particularly artificial water courses. And also these principles are not necessarily unique to American water law. They are used, some of them, in other common law jurisdictions as well so it's just it's a useful case study and also familiar to international water law more generally but limitations of course there are and i should mention probably two the first limitation is that i do draw these principles from disputes between

individuals in the united states and not between state is the situation at the international level But simply because, for the simple reason that the U.S. Supreme Court has yet to decide, to my knowledge, a water dispute between American states involving the legal status of an artificial waterway. And the second limitation, I guess, is, you know, we should keep in mind water law principles developed by American courts are generally concerned with private water usage rights. And they don't generally address public interests such as environmental protection and water conservation that, of course, we're concerned with both at the domestic level and the international level. But these issues at the domestic level, at least in the United States, are dealt with through permit systems and legislation, which, of course, is not available at the international level. But having said that, it's really not that system of private rights that I propose that we draw lessons from for international water law in the artificial waterway context. But it's rather the principles that I identified that I'll talk about in a second, they really assist with identifying, to begin with, which artificial waterways, if any, we should consider as falling within the scope of water law, whether it's domestic or international. And once we can say that a particular transboundary artificial waterway is governed by international water law, then that body of law will take care or address other public interests as well.

All right, perfect segue. When is a waterway considered subject to international water law then? Right. So that's the million dollar question, isn't it? So in the non-navigational context, which I'm concerned with, as I said, international water law applies to international water courses. That is the term. So the main treaty or instrument in international water law setting out the definition of a water course and an international water course, as well as, by the way, the principles of international water law that I mentioned, is the 1997 UN Water Courses Convention. Now, the convention does not distinguish explicitly between natural and artificial watercourses. It defines a watercourse as essentially a system of water constituting a unitary whole and normally flowing into a common terminus, which essentially means it's different parts empty into the same water body, ultimately. And an international water course is very simply defined as a water course that parts of which are situated in different states. So we have this normally flowing into a common terminus.

That's kind of the main part of the definition. And this requirement was apparently originally intended in the drafting of the convention to prevent entirely domestic waterways from being internationalized by artificial means. But at the same time, we have this qualifier word, normally, which suggests that perhaps this requirement of a common terminus doesn't have to be satisfied in every case. So in the end of the day, this phrasing of the definition was a compromise reached by the countries, the representatives of the countries drafting the convention. And some countries wanted to delete it altogether, this requirement for a common terminus, and others wanted to keep it essentially in order to limit the geographical scope of the convention. So in the end of the day, all this is to say, we have a definition of an international water course, but the convention

is very inconclusive as to whether or not artificial water courses, depending, I suppose, on what exactly they do and where exactly they are, would fall within that definition. And in the paper, I do look at other instruments of international water law, including bilateral water agreements and other agreements, but I find them to be very inconsistent in their treatment of artificial waterways, whether or not they treat them the same as natural waterways. So ultimately, you know, we're back where we started, that it's an open question currently in international water law, whether artificial waterways fall within this definition of an international watercourse at all, and therefore are governed by international water law.

And if so, which ones, in what circumstances, etc. so one follow-up question on the 1997 UN water course convention did all countries sign that or were there any notable sort of abstainers or yeah no so unfortunately not even close to being all countries the principles of international water law that I mentioned equitable and reasonable utilization no significant harm as well as the definition broadly speaking of an international water course are generally considered customary international law by now so regardless of whether and actually for instance in the silala dispute chile and bolivia neither one has signed the new york convention but they still recognize that if the silala is determined by the

icj to be an international water course they will be subject to these principle customary law principles of international water law okay and then i i think this will most likely be our final question what's our conclusions we're able to draw about how american legal principles might be applied to international water law? So again, so I look at the approach of American courts really to determining this preliminary question of what is the legal status of an artificial water waste. So whether water law principles apply to them at all, rather than what those principles might be, which presumably, you know, would be different under domestic law and international law. So I find that American courts in principle actually distinguish between natural and

artificial waterways for the purpose of the legal definition of a watercourse. But I do identify at least two basic situations in which American courts have held artificial waterways to have the legal status of natural watercourses. So they'll get the same legal treatment as a natural watercourse. And so the first situation is where an artificial waterway has the physical attributes or the essential physical characteristics of a natural water course. And this generally includes a reasonably defined channel with a bed and banks and a current of water. So generally speaking, the trend is when American courts find that an artificial waterway has these physical attributes, they've treated that waterway as if it's natural for legal purposes. And the second situation

is where an artificial waterway has legally become a natural watercourse. And this can happen in a couple of ways. For instance, it can be permanent rather than it has become permanent rather than being temporary, perhaps because of how it was created. So perhaps originally it was created naturally, but it has been modified or maintained in an artificial way, but could still be considered a natural watercourse legally or because of how it has been used. If it has been used for a very long period of time or has been used in a way that substitutes a natural water course, then courts have considered that to be, legally speaking, a natural water course.

So my overall conclusion, I suppose, is that, first of all, we should kind of reject the idea that transboundary artificial waterways should be categorically excluded from international water law, no matter what. But having said that, even if we can agree on that, the question still remains in international water law, which artificial waterways exactly should be considered as natural watercourses or as an international watercourse as defined in international water law. And to this extent, I think for this determination, these two basic principles or situations that the American courts have developed or identified could be at least a good starting point to making that determination. well unfortunately that's all the time that's all that we have time for today i would like to thank my guest dr tamar michelle uh tamar where can we find you online and what are you working on next so uh you can follow me on twitter at dr tamar michelle you can check out my publications on my ssrn page and my google scholar page um my next water law related article looks at an old water law doctrine called the Harmon Doctrine, and it was actually named after a U.S. Attorney

General, Judson Harmon, served under President Cleveland, and he created this doctrine, and it's named after him, in 1895 in the context of a water dispute between the U.S. and Mexico. And the doctrine essentially allows a state that shares a transboundary water course with another state to do whatever it wants with the water in its own territory, regardless of harm to the other state. And so it's also called absolute territorial sovereignty. And unsurprisingly, perhaps, it has been discarded and rejected long ago in international water law. However, I argue in the article that actually remnants of the doctrine can still be detected in arguments made by states in the U.S. in water disputes that go before the U.S. Supreme Court, as well as by

countries at the international level in water disputes that go before the ICJ. And so in the article, I try to explain why states continue, apparently, to rely to some extent on these kind of extreme sovereignty arguments in water disputes. So the article will be published in the Virginia a Journal of International Law at the end of the year, early 2023. I look forward to reading that. Maybe we can have you back on again to discuss when it comes out. But thank you again for coming on to the listeners. Thanks for tuning in.

We'll see you next time. © BF-WATCH TV 2021 © transcript Emily Beynon