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Friday, August 18, 2017

Bolivia and Chile Head to ICJ Over Silala River

While governance of transboundary international waterbodies is a constant challenge in many parts of the world, these challenges rarely result in cases before international tribunals. But Bolivia and Chile have brought competing claims over the Silala River to the International Court of Justice (ICJ).  Chile contends that the Silala is an international river subject to international law. Bolivia claims that the river - which originates in springs in the Bolivian highlands - cross the Chilean border only because of man-made canals constructed over a hundred of years ago. Mining interests in Chile's Atacama Desert depend on the Silala for industrial water uses in one of the driest, and most copper-rich, regions of the world. The UN has designated the Silala basin as one of the "the most hydropolitically vulnerable basins in the world."

There is no treaty between Bolivia and Chile governing the apportionment of the waters of the Silala, although the 1904 Treaty of Peace and Friendship ending the War of the Pacific relates to issues of boundary delineation relevant to the ICJ case. Neither Bolivia nor Chile are signatories to the UN Convention on the Law of Non-Navigational Uses of International Watercourses (the "Watercourse Convention"). The Watercourse Convention entered into force in 2014 with the 35th nation (Vietnam) ratifying the convention. The Watercourse Convention attempts to articulate customary international law regarding transboundary water rights based on the approaches taken in many regional international water treaties. There are several issues involved in this case, including the duties to cooperate over shared resources, landlocked Bolivia's access to the ocean, and environmental issues. But my interest is in the question of whether or not, and to what extent, the Silala is governed by international water law.

The Watercourse Convention applies to international watercourses, defined as "a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus"... parts of which are situated in different states." (Watercourse Convention, Art. 2). The Silala case will raise several interesting questions regarding the appropriate scope of international water law. If the river only crosses an international boundary and/or flows to a common terminus with other international tributaries because of man-made canals, does the river still meet the definition of "international watercourse"? Imagine a small artesian well in an intra-state closed basin is connected via man-made channels to a neighboring international drainage basin. Is the well now part of that international watercourse and thus subject to international water law? In the case of Chile and Bolivia, that would mean the water must be allocated between the two co-riparians based on the principles of reasonable and equitable utilization under Articles 5 and 6 of the Watercourse Convention. If not, then Chile may owe Bolivia compensation for diverting a purely domestic watercourse away from its sovereign state. Chile argues that the river has always been a transboundary river, and that the man-made canals simply augment flows to the mines. Chile may also argue that the century-old concession agreement establishing the canals effectively concedes the transboundary nature of the river. Bolivia argues that the man-made canals are the only reason for the transboundary character of the river, that sovereignty over the river belongs to Bolivia and the concession agreement is revocable, and that man-made canals are proprietary based on the state concession contracts and not part of an international watercourse.

The case illustrates the difficulty of clearly delineating between waters, not only because of the ways technology and infrastructure connect watercourses, but also because the hydrologic cycle connects all waters. It may seem simple to suggest that waters within a particular catchment can be treated as legally distinct from waters on the other side of the watershed, or that surface water can be treated as legally distinct from groundwater, or that embedded water can be treated as legally distinct from raw water - but in each of these instances, the legal distinction typically proves arbitrary and problematic. Water law is plagued by the impossible task of drawing defensible lines between interconnected waters.

 

 

 

Posted by Rhett Larson on August 18, 2017 at 09:14 PM | Permalink

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