UNESCO
IHP-HELP Centre for Water Law, Policy & Science
CECHR Symposium West Park Conference Centre, Dundee 5th February 2014
Hydropower Projects and Transboundary Rivers Dr Alistair Rieu-Clarke Reader in International law
Transboundary River Basins of the World
Do Transboundary Hydropower Projects Lead to Conflict?
“If a single drop of the Nile is lost, our blood will be the alternative. We are not warmongers, but we will never allow anyone to threaten our security.� Former Egyptian President Mohammad Morsi, June 2013
Do Transboundary Hydropower Projects Lead to Cooperation?
How to reconcile competing uses?
Governments
• Ministries • Provinces
Communities
• Potentially affected
• Energy • Construction • Consultancy
Private companies
Investors
International Organizations
• Foreign Companies • Development Banks
• Advocacy • Science
What’s the applicable law? Water/Environmental Protection
State-State relations/ responsibilty
Investment
Human Rights
Protect investors/ guard against political risk
Protect individual/communities
Fragmented system of treaty and customary law
2,000 bilateral investment treaties
Range of global/regional and topic specific instruments and institutions
Limited territorial sovereignty
Fair and Equitable Treatment
Right to Water increasingly recognised
Critical Intersections • Watercourse States must take all measures not to cause significant harm – Intentionally or negligently caused the event, or not prevented others in its territory – Standard of due diligence • Industry standards and codes of conduct (IAH Sustainability Protocol)
• Notification and consultation – When and what to notify? – How to consult?
• State obligation to conduct transboundary EIAs – – – –
Supported by ICJ in Pulp Mills Case Content, process and scope? 1991 Espoo Convention? Development Bank procedures?
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO
Slide | 8
Critical Intersections •
Community participation – General Comment 15 Right to Water •
• •
“Right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral par of any policy, programme or strategy concerning water” Rio Declaration (Principle 10), Aarhus Convention, … Principle of free, prior and informed consent – –
•
•
World Commission on Dams ILO Conventions
EIA requirements? Cross border?
Right to Water and Equity – Art. 10 UN Watercourses Convention •
•
‘Special regard to vital human needs’
Foreign investors – Full protection and security •
Against upstream State actions?
– Indirect expropriation • •
15-25 years Adoption of more stringent environmental flow requirements
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO
Slide | 9
Research activities •
Rieu-Clarke, “Transboundary Hydropower Projects Seen Through the Lens of Three International Legal Regimes – Foreign Investment, Environmental Protection and Human Rights”, International Journal of Water Governance (forthcoming)
•
Rieu-Clarke, “Notification and Consultation Procedures under the Mekong Agreement: Insights from the Xayaburi Controversy”, Asian Journal of International Law (forthcoming)
•
“International Law and Transboundary Hydropower Projects – critical intersections between environmental protection, human rights and investment”, AHRC International Research Networking Scheme.
•
“The Grand Dam on the Blue Nile River: Implications for Sustainable Development, the Ecosystem Services and Stability in the Region”, Research proposal with University of Aberdeen, JHI, University of Wisconsin, Addis Ababa University and University of Khartoum
•
Transboundary Water Treaty Optimisation Model for Hydropower and Agriclutural Trade-offs, Rieu-Clarke and Rafael Mactangay, ESRC Research Grant
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO
Slide | 10
Thank You!