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10 The Resilience of Transboundary Water Governance …
10.5 Dispute settlement
10.5.1 Dispute Settlement Mechanisms and Hydropolitical
Resilience
Dispute settlement mechanisms are key institutional components of hydropolitical resilience. They provide a means of settling differences over the interpretation
or implementation of the relevant governance scheme. They may also serve as a
forum for discussing issues that are not envisaged in the underlying legal framework.
The sheer existence of such mechanisms, however, is not a mechanical indicator of
hydropolitical stability. In fact, a recent study by Dinar et al. found a surprising
absence of formal dispute settlement procedures in several highly cooperative coriparian relationships and a higher number of such mechanisms in conflict-prone
basins. This suggests that it is those regions that incorporate dispute settlement in
their treaties that expect to be in conflictive situations (Dinar et al. 2014). Moreover,
there is also an observable tendency to avoid recourse to dispute resolution mechanisms by riparian states even where they do exist. As Johan Lammers, a renowned
water diplomat and scholar, notes in the context of the UNECE Water Convention:
“experience has shown that Parties are often not inclined to bring cases against one
another, particularly when the case does not directly affect them individually, or
when they find themselves in a similar situation” (Lammers 2014).
Naturally, the relevant mechanisms are not a speciality of water treaties, but a
cornerstone of general international law and politics. Consequently, transboundary
water law heavily draws on the institutional solutions developed over the centuries
in the broader context of interstate relations. International practice differentiates
between a number of soft, hard and alternative mechanisms of resolving conflicts.
These include:
– negotiations: involving only the affected parties,
– enquiry and fact-finding: a third party is engaged to clarify the facts underlying
the conflict,
– mediation, conciliation, good offices: a third party is engaged with a view to
facilitating the adoption of a mutually acceptable solution,
– arbitration: upon the joint request of the parties an independent arbitrator or a body
of arbitrators renders a binding decision or award based on the legal argumentation
of the parties,
– litigation (adjudication): upon the request by one or all parties an established
court renders a binding decision on the legal arguments of the parties.
In the past decades additional avenues of conflict prevention and dispute settlement
have emerged, dominantly in the form of compliance and implementation mechanisms developed under international human rights and environmental law (Boisson
de Chazornes 2013). While these treaty-based mechanisms differ greatly, they normally perform four major functions: gathering of performance review information,
10 The Resilience of Transboundary Water Governance …
10.5 Dispute settlement
10.5.1 Dispute Settlement Mechanisms and Hydropolitical
Resilience
Dispute settlement mechanisms are key institutional components of hydropolitical resilience. They provide a means of settling differences over the interpretation
or implementation of the relevant governance scheme. They may also serve as a
forum for discussing issues that are not envisaged in the underlying legal framework.
The sheer existence of such mechanisms, however, is not a mechanical indicator of
hydropolitical stability. In fact, a recent study by Dinar et al. found a surprising
absence of formal dispute settlement procedures in several highly cooperative coriparian relationships and a higher number of such mechanisms in conflict-prone
basins. This suggests that it is those regions that incorporate dispute settlement in
their treaties that expect to be in conflictive situations (Dinar et al. 2014). Moreover,
there is also an observable tendency to avoid recourse to dispute resolution mechanisms by riparian states even where they do exist. As Johan Lammers, a renowned
water diplomat and scholar, notes in the context of the UNECE Water Convention:
“experience has shown that Parties are often not inclined to bring cases against one
another, particularly when the case does not directly affect them individually, or
when they find themselves in a similar situation” (Lammers 2014).
Naturally, the relevant mechanisms are not a speciality of water treaties, but a
cornerstone of general international law and politics. Consequently, transboundary
water law heavily draws on the institutional solutions developed over the centuries
in the broader context of interstate relations. International practice differentiates
between a number of soft, hard and alternative mechanisms of resolving conflicts.
These include:
– negotiations: involving only the affected parties,
– enquiry and fact-finding: a third party is engaged to clarify the facts underlying
the conflict,
– mediation, conciliation, good offices: a third party is engaged with a view to
facilitating the adoption of a mutually acceptable solution,
– arbitration: upon the joint request of the parties an independent arbitrator or a body
of arbitrators renders a binding decision or award based on the legal argumentation
of the parties,
– litigation (adjudication): upon the request by one or all parties an established
court renders a binding decision on the legal arguments of the parties.
In the past decades additional avenues of conflict prevention and dispute settlement
have emerged, dominantly in the form of compliance and implementation mechanisms developed under international human rights and environmental law (Boisson
de Chazornes 2013). While these treaty-based mechanisms differ greatly, they normally perform four major functions: gathering of performance review information,