Interstate Arbitration and the Peaceful Resolution of Transboundary Fresh Water Disputes

Predictions that interstate fresh water disputes will increase in the future have led to a vast body of research on tools and techniques to manage shared freshwater resources so as to prevent such disputes from arising, however relatively little attention has been paid to the need for effective ways to resolve such disputes peacefully if and when they do arise. History suggests that States usually attempt to resolve fresh water disputes by way of ‘non-legal' processes such as negotiation or mediation. However, such mechanisms are not always effective or efficient and may lead to deadlock. Arbitration, on the other hand, can provide an effective yet flexible process for the resolution of such disputes, but it has been rarely employed or even considered in this context. This paper sets out to examine the potential for arbitration to be effectively employed by States in the resolution of fresh water disputes. It first describes the unique nature of these disputes, briefly examines the international law principles governing them as well as the main mechanisms used for their resolution, and evaluates their adequacy. It then suggests a new approach to interstate arbitration, intended to ‘revive' it in the context of fresh water dispute resolution. This approach calls for a return to the original purpose and ‘true nature' of arbitration, which rather than constituting a purely ‘legal' mechanism similar to judicial settlement was intended to be a more flexible, just, and ‘quasi-diplomatic' alternative to it. It also sets out to revamp the Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment of the Permanent Court of Arbitration and adapt them to the specific context of fresh water disputes and the original quasi-diplomatic spirit of arbitration