This course focuses on the implementation of international principles for sustainable water management, through the lens of the Multilateral Environmental Agreements (MEAs). It aims at illustrating the main “green” principles of international water law, stemming from both binding and non-binding instruments, and their implementation in domestic legislation, transboundary agreements and related court/arbitration decisions.
|Module A - Water Law and the Environment||A1 - Integrating Environmental Concerns in International Water Law||
Author: Stephen C. McCaffrey
Scope: International water law, in its broadest sense, concerns all issues that may arise in respect of the sustainable use, enjoyment, and preservation of watercourses shared by two or more States. These issues include protection of the watercourse, allocation of its waters, and assurance of navigation. International water law also sets out the procedural rules necessary to preserve the equality of rights between the parties to allocation of water quantities and to protect watercourse ecosystems.
This class focuses on the ways in which environmental considerations are integrated into the general framework of international water law that is binding upon all States sharing a watercourse with one or more other States.
The class also shows how the basic principles of international water law include requirements for considering environmental and fluvial ecosystem protection, consistent with the general sustainability principles established by the Multilateral Environmental Agreements (MEAs).
Purpose: The class aims to achieve an understanding on the part of the participants of how the basic principles of international water law incorporate environmental considerations and to give a general understanding of how this has been demonstrated, in particular in relevant case law.
Methodology: The purpose of the class will be achieved by an introductory lecture followed by practical group exercises.
|A2 - Integrating Environmental Concerns in National Water Law||
Author: Stefano Burchi
Scope: This class will illustrate the rising profile of the environment as a legitimate user of available water resources. It will present the environment as a competitor for the allocation and re-allocation of a scarce resource. This will be done through the analysis of a number of dedicated mechanisms in contemporary water resources laws.
Purpose: Through this class, participants will glean the scope and magnitude of the process underway in contemporary water resources allocation and re-allocation laws. Participants will be exposed to evidence of the “greening” process of domestic water laws. They will get a grasp of the issues entailed by this process.
Methodology: The objectives of this class will be achieved through an informative unit and an application unit. The informative unit will consist of a PowerPoint presentation illustrating the “greening” process and mechanisms, and highlighting the relevant problem. A briefing note will also be prepared, summarizing key points and issues. The application unit will consist of two group exercises seeking to contextualize the theoretical learning in fictitious real-life situations. A group exercise will focus on the interpretation of a fictitious Water Act from the “greening” lens. Another group exercise will elicit policy and legal advice on the desirable “greening” reform of a fictitious Water Act.
|Module B - Equitable and Reasonable Use of Water Resources||B1 - The Principle of Equitable and Reasonable Use||
Author: Owen McIntyre
Scope: This class seeks to outline the theoretical origins, normative nature and practical legal implications of the principle of equitable and reasonable utilisation. The class takes a particular focus on the environmental protection requirements which are increasingly understood to be inherent to the principle’s meaningful implementation. It also seeks to illustrate the requirements of environmentally sound implementation of the principle at the national and basin levels.
Purpose: This class aims to provide an overview of the conceptual and normative origins and nature of the principle of equitable and reasonable utilisation. It includes an account of the central role of the principle in the overall framework of international water law, regardless of the form of its inclusion in global and regional framework conventions and myriad basin agreements. It also aims to explore the means by which considerations of environmental protection have come to be included, and to enjoy significant priority, among the factors to be considered as relevant in the determination of equitable and reasonable use of shared international water resources.
The target audience includes policymakers (and their staff) from transboundary basin organizations, regional and national legislatures and water authorities, technocrats and water managers, and graduate students in various disciplines. This class will therefore aim to be accessible to people from mixed backgrounds. It will, through practical examples and experiential learning exercises, strengthen participants’ capacity to better engage in international transboundary waters governance.
Methodology: This class is structured to run for three hours. It begins with a 45-minute introductory presentation on the conceptual basis and normative character of the principle of equitable and reasonable use, and on its central role in the practice of international water law. The presentation will also highlight the environmental protection values which pervade the factors relevant to determination of equitable and reasonable use. It will cover the practical means by which such environmental requirements are made effective, including, among others, environmental impact assessment, the ecosystems approach and the related imperatives and methodologies for key multilateral environmental agreements (MEAs). The presentation will be followed by a 15-minute question and answer period.
Participants will then take part in a two-hour experiential learning exercise concerning the Brown River. Participants will be asked to work in three separate groups to provide legal advice and to develop a negotiating position for three riparian States.
|B2 - Equitable and Reasonable Use of Water Resources in Practice||
Author: Richard Kyle Paisley
Scope: This class focuses on the application of the equitable and reasonable use principle. It takes into account the relevant factors and circumstances established by international water law, with reference to different uses within the same basin organization (irrigation, energy production, fishing, tourism, etc.). This class builds on Module B Class 3, which illustrates the meaning of the equitable and reasonable use principle according to international water law and as seen through the lens of multilateral environmental agreements (MEAs) and reviews the foundations of the principle, its “green” interpretation”, and its implementation at the national and basin level.
Purpose: This class presents the practical aspects of the principle of equitable and reasonable use in international water law. The target audience is policymakers (and their staff) from transboundary basin organizations, regional and national legislatures and water authorities, technocrats and water managers, and graduate students in various disciplines. Through practical examples and experiential learning exercises, the class will strengthen participant capacity to better engage in international transboundary waters governance.
Methodology: This class is structured for three hours. It begins with an introductory presentation on the application of the principle of equitable and reasonable use in the international experience. Next, a case study on the principle of equitable and reasonable use in practice will be presented. The case study will focus on the development of mutually beneficial treaties between Canada and the United States of America (USA). The presentation will be followed by a question period.
Adult learners invariably learn best when they are involved in the training process. Participants will take part in a two-hour experiential learning activity centred on the Green River Basin, to apply the factors that determine equitable and reasonable use to a specific transboundary waters situation.
|Module C - No Significant Harm, Transboundary Impact and Pollution Control||C1 - No Significant Harm, Pollution Prevention and Quality Standards||
Author: Marcella Nanni
Scope: The class is devoted to the “no significant harm” principle. In particular, we discuss the prevention, reduction and control of pollution as a means to prevent transboundary impacts. The class addresses the manner in which the principle is implemented at the (international) basin level and at the national level of the basin states concerned. The focus is on surface water resources, since a specific module – Module E – is devoted to the protection of groundwater systems.
Purpose: The class aims at building an understanding of (a) the principles underlying the prevention, reduction and control of pollution of transboundary water resources, (b) legal and institutional requirements to implement the principles, and (c) the legal and institutional tools available to prevent, reduce and control pollution of transboundary water resources at the basin level and within the national contexts of the states concerned.
Methodology: Among other topics, the class covers the following: (a) definitions; (b) the “no significant harm” principle, its foundation, evolution and sources, and its relationship with the “equitable and reasonable use principle”; (c) prevention, reduction & control of pollution in international law; and (d) prevention, reduction and control of pollution according to domestic legislation. The presentation is followed by a group exercise focusing on pollution control. The exercise concerns a river basin scenario in which the stakeholders (selected ones for each country) first decide internally what they want to do with their waters and then negotiate on the basis of the materials they are given. The materials distributed will cover international and regional agreements, such as the UN Watercourses Convention, the United Nations Economic Commission for Europe (UNECE) Water Convention, the European Union (EU) Water Framework Directive and the 2000 Southern African Development Community (SADC) Revised Protocol, selected treaties, and selected national laws.
|C2 - No Significant Harm and Transboundary Environmental Impact Assessment||
Author: Mara TigninoScope: This class presents three principles that govern the implementation of the no-harm rule, namely the obligation of notification and consultation, the duty to carry out an Environmental Impact Assessment (EIA) and the principle of public participation. These principles are presented as ‘environmental’ techniques that prevent significant harm from occurring and that contribute to the prevention of disputes between riparian States. First, the class illustrates the principle of notification and consultation through State and international practice, including an analysis of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses (the UN Watercourses Convention or UNWC). Secondly, it describes the procedural steps required to carry out an EIA, focusing on the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context and other international instruments. Thirdly, it examines the requirements of public participation during an EIA under the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters and other international practice. The class illustrates these three principles by examining case studies at the basin level, including the 2002 Senegal River Water Charter, the 2008 Niger Basin Water Charter and the 2012 Lake Chad Basin Charter and case law of the International Court of Justice (ICJ).
Purpose: The class will answer the following questions:
Methodology: The methodology combines the study of agreements adopted at the universal, regional and basin levels with an analysis of case law. Pertinent State and international practice will be made available to participants. It is expected that participants will become familiar with international practice and will be able to compare international instruments and identify emerging common trends. The group exercise includes discussion forums in which participants will share their knowledge of specific basins. The second proposed exercise consists in writing a short report. This assignment will be submitted by groups of two or three participants.
|Module D – Ecosystem and Biodiversity Protection||D1 - Ecosystem Approach and Ecosystem Services||
Author: Ariella D’Andrea
Scope: This class illustrates the foundation of the principle of ecosystem protection and preservation in international water law. It highlights related provisions regarding the introduction of alien or new species and the preservation of the marine environment. Reference is made to existing and emerging tools for the implementation of an ecosystem approach to integrated water resources management in domestic and international law. The class also considers increasing interpretation of international water law in the light of multilateral environmental agreements (MEAs) in international disputes. The class finally illustrates the concept of payment for ecosystem services (PES) in relation to freshwater, giving examples of provisions from national legislation.
Purpose: Participants will become acquainted with the principle of ecosystem protection and preservation and its role in freshwater management. They will become familiar with existing tools to acknowledge the environment-support function of freshwater and to preserve the capacity of ecosystems to produces goods and services for human benefit.
Methodology: The class first illustrates the topic in a Power Point presentation, with a supporting briefing note. The second part of the class involves the group exercise. Participants will analyse the provisions of a fictitious bilateral agreement on a transboundary river. They will then propose amendments to implement the principle of ecosystem protection and allow the introduction of transboundary PES schemes.
|D2 - Dams, Ecosystems and Fisheries||
Author: Paul Stanton Kibel
Scope: This class focuses on how international water law principles relate to the construction and operations of on-stream dams. Within this general focus, the following more specific topics are reviewed: (1) upstream/downstream nation rights and obligations relating to the impoundment and release of water from on-stream dams; (2) effect of on-stream dams on fisheries/aquatic habitat and fishers; (3) international environmental impact assessment obligations relating to the construction and operation of on-stream dams; (4) relation of hydro-electric dams to efforts to reduce greenhouse gas emissions associated with energy production.
Purpose: Participants will learn the ways that international and national water law has evolved to take increased account of the in-stream value of water and how on-stream dams impact flow volume, flow velocity, water quality, water temperatures and fisheries. Participants will gain a deeper appreciation of how emerging international environmental impact assessment norms can help to improve the environmental performance of dams and how concerns about climate change have prompted a debate over the relative environmental impacts of on-stream hydro-electric dams.
Methodology: For the first part of the class, an overview of the class materials will be provided in a Power Point presentation and supporting briefing note. In the second part of the class, participants will be provided with legal texts and associated group exercises for the four topics identified above in the ‘scope’ section of this class overview.
|Module E – Protection of Groundwater Systems||E1 - Regulation of the Environment-Support Function of Groundwater Systems||
Author: Gabriel Eckstein
Scope: This class will introduce participants to regulatory norms that can be used to ensure the environment-support functioning of groundwater resources at the domestic and international levels. The lecture component of the class will be divided into two parts. The first will highlight the physical functioning of aquifers, the role they play in the natural environment, and the effects that human activity can have on those processes. Building on part one, the second part will address legal mechanisms (at the domestic and international levels) that may be used to ensure the continued environment-support functioning of groundwater systems. Special attention will be paid in both parts to protections related to the recharge zone, the aquifer matrix, the discharge zone, and aquifer-dependent ecosystems.
Purpose: This class is intended to familiarize participants with the environment-support functioning of groundwater resources and the chief legal mechanisms used to support and ensure those processes. The class will also introduce participants to the physical and scientific context in which the principles can be appropriately applied.
Methodology: The class will begin with a lecture on the environment-support function of groundwater systems. This discussion will use diagrams, graphics, and other illustrative material to allow participants to “see” what is happening under the ground. Building on part one, the lecture will then proceed to a discussion of legal mechanisms (at the domestic and international levels) that may be used to ensure the continuation of those functions. This presentation will use examples from the domestic laws of various nations as well as from international instruments.
Thereafter, participants will engage in a series of practical exercises that will task them with formulating regulatory norms to address specific concerns related to the functioning of a groundwater system and its relationship to the natural environment.
|E2 - Prevention of Aquifer Pollution||
Author: Kerstin Mechlem
Scope: This class familiarizes participants with the legal mechanisms used in domestic and international law to prevent, control and abate aquifer pollution. It explains the specific vulnerability of aquifers and looks at the different causes of pollution ranging from unsuitable abstraction practices to point- and non-point source pollution.
The class highlights how quantity and quality control of groundwater are interrelated because unsuitable abstraction practices can mobilize naturally occurring pollutants such as arsenic or fluoride or induce saline intrusion or the migration of lower quality or brackish waters. Therefore, rules on regulating drilling and abstraction will be covered.
It will also set out how point-source pollution is addressed by absolute prohibitions or limitations on emitting certain substances and how polluting activities may be made conditional upon a wastewater or pollution discharge permit, prior treatment of the substance and/or compliance with effluent standards.
With respect to non-point source or diffuse-source pollution prevention measures, the class will discuss how the whole array of actors involved in land-use and pollution management has to be involved in groundwater quality protection and included in the scope of relevant legislation. Measures to reduce non-point pollution include prohibiting or limiting certain polluting or water-using activities, such as limiting the use of fertilizers and pesticides, restricting certain cropping patterns, reducing animal-grazing intensity, and regulating land reclamation and drainage.
The class will also discuss the use of land surface zoning and the creation of protected areas, which are often used for critical areas of high vulnerability such as recharge areas or the capture zones of the main areas of potable water-supply abstraction. In addition, it will introduce the concept of managed aquifer recharge with specific regard to water quality control. Finally, with respect to international law, the linkages with the obligation not to cause significant harm will be analyzed.
Purpose: The objective of this class is to raise awareness of the specific vulnerability of aquifers to pollution and to familiarize participants with well-established as well as emerging regulatory answers to the challenge of aquifer pollution. It will enable participants to critically review and assess the strengths and weaknesses of pollution provisions in water legislation and international legal instruments.
Methodology: First, the participants will be familiarized with the topic in an overview lecture, which is supported by a briefing note. In the second section of the class they will apply the information presented in two group exercises. In one exercise the participants will be asked to strengthen the groundwater pollution provisions in a fictitious domestic context. In the second exercise they will assume the role of negotiators of the groundwater quality provisions of a bilateral aquifer agreement.