The Evolution of Interstate Arbitration And The Peaceful Resolution of Transboundary Freshwater Disputes

This Article sets out to examine the potential for arbitration to be effectively employed by states in the resolution of transboundary freshwater disputes. Part II will describe the unique nature of TFDs, briefly examine the international law principles governing such disputes as well as the main mechanisms used for their resolution, and evaluate their adequacy. Part III will suggest a new approach to interstate arbitration, intended to ‘revive’ it in the context of TFD resolution. The first element of 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.

This view prescribes very different roles to arbitrators, international law, and extra-legal considerations in the resolution of interstate disputes, and places arbitration midway between judicial settlement and non-legal mechanisms on the spectrum of interstate dispute resolution processes, thus making it particularly suitable for the resolution of TFDs. The second element of the proposed approach 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 (PCA) in the original quasi-diplomatic spirit of arbitration. While the Rules were celebrated as innovative when first adopted in 2001, they have been scarcely used by states to resolve environmental disputes, and have not been used at all in the TFD context. At the same time, no other permanent institution or tribunal has been created specifically for the resolution of TFDs.

This Article will argue that the PCA and the Rules continue to present the greatest potential in this regard, however the Rules should be adapted to the specific context of TFDs and the quasi-diplomatic nature of arbitration.