Dr Alistair Rieu-Clarke, UNESCO ‘Hydropower projects and transboundary rivers’

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

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Critical Intersections •

Community participation – General Comment 15 Right to Water •

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“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 – –

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World Commission on Dams ILO Conventions

EIA requirements? Cross border?

Right to Water and Equity – Art. 10 UN Watercourses Convention •

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‘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)

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Rieu-Clarke, “Notification and Consultation Procedures under the Mekong Agreement: Insights from the Xayaburi Controversy”, Asian Journal of International Law (forthcoming)

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“International Law and Transboundary Hydropower Projects – critical intersections between environmental protection, human rights and investment”, AHRC International Research Networking Scheme.

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“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

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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!