Lecture by Judge Kenneth KeithPeace Palace – Academy Building

28 January 2015

The Role of the Permanent Court of Arbitration in International Water Disputes

Judith LevineSenior Legal Counsel

Permanent Court of Arbitration

www.pca-cpa.org

1. Introduction to arbitration and the PCA

2. PCA cases involving international water disputes(i) Rhine Chlorides arbitration (Netherlands/France), 2004(ii) Guyana/Suriname, 2007(iii) Indus Waters Kishenganga (Pakistan v. India), 2013(iv) Other examples

3. Water instruments referencing arbitration

4. Other PCA projects and initiatives

Overview

www.pca-cpa.org

1. Introduction: Key Features of Arbitration

parties consent to refer dispute/s to arbitrator/s - e.g. in treaty or special agreement

for final and binding decision according to law

by a specially constituted tribunal- parties have role in selecting arbitrators- arbitrators chosen for knowledge and experience relevant to dispute- usually 3 arbitrators, sometimes 1, 5, or 7

using a flexible procedure- hearings anywhere in the world, neutral location- procedural timetable and features to suit parties and tribunal- as confidential or transparent as parties agree

www.pca-cpa.org

1. Introduction: History of the PCA

1899: Hague Peace Conference, initiative of Tsar Nicholas II, “seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace…” led to 1st Hague Convention

Art. 16: “arbitration is recognized… as the most effective, and most equitable, means of settling disputes which diplomacy has failed to settle.”

Art. 20: “With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times…”

www.pca-cpa.org

0

25

50

75

100

125

150

175

200

225

250

1900

1910

1920

1930

1940

1950

1960

1970

1980

1990

2000

2010

Cases Initiated Cases Cumulative

1. Introduction: caseload since 1900

254 total casesof which 201

commenced in last 10 years

www.pca-cpa.org

(i) Administrative Council116 Member States

1. Introduction: Structure of the PCA

(ii) Members of the Court

Member States can name up to 4 individuals competent in international law, of ‘highest moral reputation’, disposed to accept duties of arbitrators. (Art. 23)

(but Parties to disputes not limited to this list)

The PCA is an intergovernmental organisationproviding a permanent framework for arbitral and otherdispute resolution proceedings. Has a 3 part structure:

www.pca-cpa.org

(iii) International Bureau

• Secretariat, based in the Peace Palace

• 60+ experienced legal and administrative staff, multinational and multilingual

– provide registry services & support to tribunals, organize hearings worldwide

– advise parties contemplating bringing a case on modalities of international proceedings

– assist in appointing arbitrators

– scholarship, training, collaboration on policy and projects

I. Introduction: Structure of the PCA

www.pca-cpa.org

1. Introduction: 93 pending PCA cases

www.pca-cpa.org

2. Case Examples: (i) Netherlands v. France, 2004

“The Rhine Chlorides Arbitration concerning the Auditing of Accounts”

Instrument: Additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against Pollution by Chlorides of 3 December 1976

Tribunal: Judge Pieter H. Kooijmans (Netherlands)Judge Gilbert Guillaume (France) Judge Krzyszstof Skubiszewski (Poland)

Subject: Disputed interpretation and application of cost-sharing formula and calculations of France’s contribution to costs with respect to chloride level reductions.

PCA: Served as registry, organized meetings and hearings in The Hague and Paris, administrative assistance to tribunal, managed archives and document exchanges, published award with commentary by Prof. Laurence Boisson de Chazournes.

Significance: Principles of treaty interpretation, highlighted economic aspects of env’t protection and management of watercourses, cost allocation as key to regimes set up to combat pollution, principle of “community of interest” of riparians.

www.pca-cpa.org

(ii) Guyana/Suriname, 2007

Instrument: UNCLOS, Art. 286, 287, Annex VII

Tribunal: H.E. Judge L. Dolliver M. Nelson (Grenada)Prof. Thomas Franck (USA)Dr. Kamal Hossain (Bangladesh)Prof. Ivan Shearer (Australia)Prof. Hans Smit (Netherlands)

Subject: Maritime boundary delimitation. Specific point (“Marker B”) on west bank of Corentyne River relevant to boundary and 1936 agreement, based on navigational/administration concerns re: river approaches.

www.pca-cpa.org

(ii) Guyana v. Suriname 2007

PCA: • Hearings in London, The Hague & Washington DC (OAS)• Assisted with identifying potential experts• Made arrangements for and accompanied hydrographer,

parties and their representatives on site visit to locate, 1936 survey markers relating to location of the land boundary terminus between the countries.

www.pca-cpa.org

(iii) Indus Waters KishengangaPakistan v. India, 2013

Instrument: Indus Waters Treaty1960

‘Court of Judge Stephen M. Schwebel (USA)arbitration’: Sir Franklin Berman KCMG QC (UK)

Prof. Howard S. Wheater FREngProf. Lucius Caflisch (Swiss)Prof. Jan Paulsson (US/Swed/Bahrain)Judge Bruno Simma (Germany)H.E. Judge Peter Tomka (Slovak Rep)

Subject: Construction of hydro-electric projects on Kishenganga/Neelum River in the Kashmir region. River followed “Line of Control.”

India proposed to divert the river (using tunnels to lower levels, creating more power) before it passed over line of control, affecting flow in Pakistan areas.

Pakistan alleged breach of 1960 treaty obligation to “let flow all of the waters”

www.pca-cpa.org

(iii) Indus Waters Kishenganga(Pakistan v. India, 2013)

PCA:

• Arranged Site Visit June 2011 (full tribunal) Tribunal visited both sides in summer (high flow season) to see how construction project works and get impression of scale of what parties were doing and how much water was in river.

• Arranged Site Visit Feb 2012 (PCA, 2 arbs)PK wanted to return in winter (low flow season, not enough for both PK and IN plants to operate).

• Other registry tasks: arrange meeting and hearings, archives, coordinate with parties on joint press releases, publication of award.

Result (unanimous):• India can build plant, but has to guarantee certain

minimum flow for operation of Pakistan’s plant andfor environmental protection.

• India cannot construct dams that empty reservoir.

www.pca-cpa.org

(iv) Other PCA cases involving waters

• Bay of Bengal Maritime Boundary Arbitration, 2014 (Bangladesh/India, UNCLOS, Annex VII)

- Issue as to location of land boundary terminus, described as the point where a particular river met the sea (but in an estuary, combining with another river).

• Abyei Arbitration, 2009 (Government of Sudan/Sudanese People’s Liberation Mov’t/Army,)

- Involved geographical, historical and anthropological materials about the Bahr el Arab river system and significance to tribal and territorial boundaries

• Croatia/Slovenia, pending

• Pending investor-state arbitrations- e.g. case where foreign operator of a nature reserve sued government for pollution

of wetlands as a result of negligent operation of sluice gate, affecting investment

• Pending cases under PCA environmental rules- e.g., a case relating to Clean Development Mechanism emissions reduction purchase agreements connected to a hydroelectric project

www.pca-cpa.org

UNCLOS: Annex VII arbitration is default for disputes. PCA has administered 11 such cases.

Water Convention: Convention on the Law of the Non-Navigational Uses of International Watercourses (entry in force 2014). Art. 33 & Annex (parties may choose arbitration)

2003 Protocol on Civil Liability and Compensation for Damage caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Conventions (not in force) refers to PCA environmental rules

Bilateral treaties, e.g. 1975 treaty concerning Iran/Iraq river boundary refers to arbitration procedures under 1907 Hague Convention for Pacific Settlement of Disputes

2010 Draft International Covenant on Environment and Development (presented to UN by NGOs) recommends Art. 69 that party submit dispute to PCA, ICJ or ITLOS.

2014 IBA Report on Climate Change & Justice recommends PCA environmental rules for UNFCCC disputes

3. Water instruments referencing arbitration

www.pca-cpa.org

4. Other PCA projects and initiatives

Seminars and Publicationse.g., Resolution of International Water Disputes 2002

Multilateral environmental negotiationse.g. UNFCCC, UNEP, Biodiversity Convention

Host Country Agreements to ensure flexibilitye.g. hearings in Costa Rica, Mauritius, Singapore, Vienna

PCA 2012 Rules, to check on complianceGenerally, parties make public statements of acceptance of awards (e.g. GU-SU, BD-IN). In line with textin 1907 Convention, PCA 2012 Rules formalize this:

“7. In cases involving only States, the parties shall communicate to the International Bureau the laws, regulations, or other documents evidencing the execution of the award.”