ARGENTINA- Water is a finite resource (it always exists in the same quantity), unevenly distributed throughout the planet, in most cases wasted. Overexploitation of water resources generates a multiplication of water uses, usually considered a source of tension. Indeed, International Law needs to be concerned about how to best manage this resource and minimize waste. This is a very important issue because 40% of the total world population depends on international watercourses. The multi-levels of governance regulations are divided: Universal Level (rules required for all the states); Regional Level (regional distinctions to be considered); and Local Level (agreements that relate to particular river basins).
On the other hand, transboundary groundwater has more bodies of norms significantly important besides International Law, such as International Environmental Law, Human Rights, and International Economic Law.
Multiple utilization of transboundary water resources
During the colonization process, navigation had an important role in the acquiring of new territories as it was considered the main basis of the concept of "free movement". In the 19th century, States started to protect their water species with treaties for an economic purpose: fishing was the focus of attention.
In the 20th century, there was a lot of pressure on water regulation from the international community as a consequence of the population growth which needed access to water, the increasing demands for economic development, the Industrial Revolution prolongation, electricity, energy, and irrigation in order to feed.
Relationship between water uses
In 1997 the New York Convention on the Law of the Non-navigational Uses of International Watercourses negotiated by the International Law Commission proclaimed in the article 10/01 that no one's use has primacy over another, meaning there is no hierarchy.
In articles 5, 6 and 7 of the mentioned convention, the principles of equitable and reasonable use and the obligation to prevent any significant damage are declared. And, uses must be in compliance with International Environmental Law, so they can be divided. Borders must be respected.
The characteristics of the conflicts between utilization are administrated by International Water Regulation which aims to ensure the beneficial use of waters to all States bordering an international watercourse. There are three types of conflicts, horizontal conflicts (between the different kinds of uses and between organizations), vertical conflicts (between the current use and the future use of an international watercourse), and diagonal conflicts of use (environmental disputes, it is not over the actual use of the water resource itself).
The conflict between uses in the Uruguay River (Argentina vs Uruguay)
In the year 2006, Uruguay received authorization for the construction of two pulp mills, so the "CMB Plant" by a Spanish company called "ENCE" was implemented. In 2007, a second plant was created by a Finish company called "Botnia". Argentina claimed to the International Court of Justice (ICJ) the violation of procedural obligations of the Statute of the Uruguay River and the violation of substantive obligations of the mentioned Statute under article 60: "Any dispute concerning the interpretation or application of the Treaty and the Statute which cannot be settled by direct negotiations may be submitted by either Party to the International Court of Justice". The country demanded that the pulp mills were a threat to the water quality of the river.
The ICJ proclaimed procedural and substantive obligations complement each other, and that although Uruguay deemed to be in breach of procedural obligations, complied with the substantive ones. Article 7 of the Statute mentions that the parties, Argentina and Uruguay, must provide information that is relevant to these two projects to the commission, as to whether the project can have an adverse effect on navigation, the regime of the river, or water quality. The ICJ asserts that Uruguay did not keep CARU informed about the project, nor about technical data.
Although in the first article of the Statute the parties agree to "establish the joint machinery necessary for the optimum and rational utilization of the River Uruguay", the Court concluded water quality was not affected by the Botnia plant implemented in 2007: "“no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or caused harm to living resources or to the quality of the water or the ecological balance of the river since it started its operations in November 2007”. Consequently, the ICJ proclaimed Uruguay did not violate substantial obligations.
Following the Court's decision, an agreement was signed: Argentinian experts could visit and review any potential impact that the Botnia plant may have on water quality. In 2013 the factory decided to increase the quantity of pulp produced annually by the plant, Uruguay did not go through CARU, and also presented to Argentina a fait accompli.
The ICJ proclaimed “[t]he Parties have a legal obligation . . . to continue their co-operation through CARU and to enable it to devise the necessary means to promote the equitable utilization of the river, while protecting its environment”.
The cooperation on transboundary water resources is fundamental to prevent tension between States, to ensure survival and to improve well-being. It is importantly needed cooperation between national authorities and the involvement of experts from different disciplines. If there isn't identification of costs and risks, of beneficiaries and stakeholders, and of the negative effects of inaction, peace might be disrupted. There was not a single war over water throughout history, and it would be great if it continued that way.
____________________________________________________________
By Micaela Seidman
Micaela Seidman is a 21-year-old-student from Buenos Aires, Argentina who is currently studying a Law Degree at the University of San Isidro. She is working at the Buenos Aires City Government. She is the CEO and Founder of Consilium Worldwide.
