Table Of Contenti
THE OXFORD INTERNATIONAL LAW LIBRARY
ii
THE OXFORD INTERNATIONAL
LAW LIBRARY
General Editor: SIR FRANKLIN BERMAN KCMG QC
This series features works on substantial topics in international law which
provide authoritative statements of the chosen areas. Taken together they map
out the whole of international law in a set of scholarly reference works and trea-
tises intended to be of use to scholars, practitioners, and students.
iii
The Law
of International
Watercourses
Third Edition
STEPHEN C. McCAFFREY
1
iv
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Stephen C. McCaffrey 2019
The moral rights of the author have been asserted
First Edition published in 2001
Second Edition published in 2007
Impression: 1
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ISBN 978– 0– 19– 873692– 9
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contained in any third party website referenced in this work.
v
This book is dedicated to
my children, Kevin, Brooke, Darren, and Amanda.
May their rivers run free and clean.
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vii
Contents
Preface to the Third Edition ix
Abbreviations xiii
Table of Treaties by Name of Watercourse xvii
Table of Treaties and Other Instruments by Name xxv
Table of Cases and Arbitrations xli
PART I. INTRODUCTION
1. Human Use of Fresh Water and the Era of Water Scarcity 3
2. The Concept and Reality of the International Watercourse System 28
PART II. EVOLUTION AND THEORETICAL BASES OF
THE LAW OF INTERNATIONAL WATERCOURSES
3. The Evolution of the Law of International Watercourses 63
4. The Theoretical Bases of International Watercourse Law: An
Examination of the Four Principal Theories 98
5. The Contribution of the Law of Navigation 161
PART III. THE MAJOR CASES AND CONTROVERSIES:
A SURVEY OF STATE PRACTICE
6. The Major Cases 197
7. Selected Case Studies 302
PART IV. FUNDAMENTAL RIGHTS AND OBLIGATIONS
8. Introduction: The 1997 United Nations Convention and its Precursors 409
A. Substantive Obligations
9. Equitable and Reasonable Utilization 444
10. The Obligation to Prevent Harm to Other Riparian States 467
11. The Obligation to Protect International Watercourses and Their
Ecosystems 507
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B. Procedural Obligations
12. Procedural Obligations 526
C. Groundwater
13. The Special Case of Groundwater 544
D. Dispute Avoidance and Settlement
14. Dispute Avoidance and Settlement: Selected Aspects 570
ANNEXES
I. United Nations Convention on the Law of the Non- Navigational
Uses of International Watercourses (1997) with Statements of
Understanding regarding certain provisions of the UN Convention 581
II. International Law Commission, Resolution on Confined
Transboundary Groundwater (1994) 599
Bibliography 601
Index 629
ix
Preface to the Third Edition
In the decade or so since the second edition of this book was published, humanity
has not managed to address the very real, and increasing, freshwater challenges it
faces with the sense of urgency that is necessary. Yes, well- intentioned resolutions
have been adopted by United Nations bodies, the UN Watercourses Convention
has entered into force, the ECE Water Convention has been opened to global par-
ticipation, and progress has been made on giving real meaning to the human right
to water. But disaster, or something close to it, hangs like a sword of Damocles over
arid regions all over the world, from the Asian Subcontinent and Northern Africa
to the Middle East and the Southwestern United States. Droughts—a lthough a
new term should perhaps be found for an abnormally dry state that is close to being
permanent— have contributed to national upheavals, such as the tragic and seem-
ingly interminable conflict in Syria. And this horrible maelstrom of death, disloca-
tion, and suffering demonstrates beyond doubt how water- related conflict that was
originally local can quickly become international, drawing in some of the world’s
most powerful states.
In the early 1990s, researchers referred to fresh water as being “in crisis.”1 Yet
twenty- five years later, the situation is arguably worse, not better. This is partly due
to the inexorable march of population growth and merciless calculus of an increased
population that must rely upon a quantity of fresh water that remains ever the same.
But more worrying is global climate change. Our understanding of climate change
and its impacts have greatly improved over the past several decades but nations,
including my own at present, have not shown the resolve necessary to combat it ef-
fectively. This almost somnolent approach of some countries, and outright denial by
others, will saddle future generations with difficult living conditions to which they
will have to adapt but for which they are not responsible. These impacts are already
palpable, not least in the water sector. And they give rise to cascading consequences.2
In California, where I live, we now have a fifth season, one more fearful than any
of the others: wildfire season. Ours in the northern part of the state began earlier
than usual this year (in fact, meteorologists say it is becoming a year-r ound phenom-
enon). The wildfires tend to be larger and more destructive than was formerly the
case because lack of rain means tinder-d ry vegetation that fuels the blazes.3 Local
1 Water in Crisis.
2 See, e.g., Ivan Penn, “More Wildfires, Less Electricity,” N.Y. Times, October 17, 2018, p. B1, re-
porting that California utilities cut electricity to thousands of Northern Californians on October 14,
2018 because of fire alerts due to high winds in areas blackened by fires a year ago. Similar action has
been taken in the southern part of the state.
3 See, e.g., Dale Kasler, “Wildfires in state will grow 77% as climate warms, study finds,” sacrameNTo
Bee, August 28, 2018, p. 1, reporting on a study by California officials indicating that the amount of
land that will be consumed by wildfires in an average year will increase 77% by the end of the century.
For the latest authoritative report on the science, see Intergovernmental Panel on Climate Change,
Special Report on Global Warming of 1.5ºC, issued October 8, 2018.
