The ICJ's Dubious Standard for Triggering Article 12 of the UN Watercourse Convention

DAN ZIEBARTH ∙ January 28, 2023 ∙ ARTICLE

Introduction

What is the standard required for one party to provide notification concerning planned measures with possible adverse effects to another party under Article 12 of the United Nations Watercourse Convention (UNWC)? In the recent ruling in Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia),[1] the International Court of Justice (ICJ) held that planned actions must present significant transboundary harm to reach such a standard. I argue that the ICJ erred in its decision regarding the standard. Specifically, relying on a standard of significant transboundary harm clearly differs from, and misinterprets, the wording of Article 12 itself, which instead refers to situations which may have any significant adverse effect. Instead, Article 12 should be read as having a significantly lower bar in keeping with the wording of the UNWC.

Case Background

The Silala River system (which may also be referred to as the Siloli River system) is an international watercourse whose surface waters originate in Bolivian territory.[2] The system is located in the Potosí Department of Bolivia and its origin is approximately 0.5 to 3 kilometers northeast of the common boundary with Chile.[3] The flow of the Silala, which is comprised of surface water and groundwater, traverses the boundary between Bolivia and Chile.[4] In Chilean territory, the Silala River flows southwest in the Antofagasta region until its waters discharge into the San Pedro River, approximately 6 kilometers from the Chilean border with Bolivia.[5]

The dispute between Chile and Bolivia concerns the contention of the Bolivian government that the Silala River system is not a transboundary watercourse, entitling Bolivia to the use of 100 percent of its waters.[6] While concessions regarding the use of the Silala River system go back to 1906, when the Antofagasta and Bolivia Railway Company Limited (known as the “FCAB”) acquired a concession from the Chilean Government to increase the flow of drinking water serving the Chilean port city Antofagasta,[7] questions of the status and use of the waters became a point of contention beginning in 1999.[8]

On May 14, 1997, the Prefect of the Potosí Department in Bolivia, revoked and annulled the concession which was granted to the FCAB in 1908 and that the company no longer existed as an active corporation in Bolivian territory.[9] Then, on September 3, 1999, the Ministry of Foreign Affairs of Bolivia addressed a diplomatic note to the Consulate General of Chile in La Paz contending that, despite the annulment in 1997 by Bolivia of the concession granted to the FCAB to use spring waters of the Silala, the company would continue using those waters and that the matter was under Bolivia’s jurisdiction.[10]

Between 1999 and 2010, two attempts to sign bilateral agreements between Chile and Bolivia failed. In 2016, the President of Bolivia, Evo Morales, accused Chile of illegally exploiting the waters of the Silala without compensating Bolivia, stating that the Silala was “not an international river,” and further expressing Bolivia’s intention to bring the dispute before the Court.[11] Chile responded to this by instituting proceedings against Bolivia before the International Court of Justice on June 6, 2016.[12]

Article 12 and the Court Decision

While Chile and Bolivia agreed that Article 12 reflected customary international law, the two parties held differing views on the threshold for triggering Article 12. Article 12 states that: “Before a watercourse State implements or permits the implementation of planned measures which may have a significant adverse effect upon other watercourse States, it shall provide those States with timely notification thereof.”[13] This is to be accompanied by technical data and information, including the results of any environmental impact assessment, so states can evaluate the possible effects of the planned measures.[14]

Chile argued that the standard of “significant adverse effect” should be used as the threshold for the application of the obligation of notification reflected in Article 12 of the UNWC.[15] In contrast, Bolivia contended that if the activity in question does not give rise to a risk of significant transboundary harm, the state concerned should not be under obligation to conduct an environmental impact assessment or to notify and consult the other States.[16]

In reaching its decision, the Court cited Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).[17] This case involved a dispute over the construction of a canal from the San Juan River to Laguna los Portillos and carried out certain related works of dredging on the San Juan River. According to Costa Rica, the dredging and the construction of that canal would have a serious effect on the flow of water to the Colorado River and cause further damage to Costa Rican territory, including wetlands and national wildlife protected areas. Regarding Article 12 of the UNWC, the ICJ ruled in Certain Activities that international states are obliged to notify and consult with another state before beginning activities which have the potential to adversely affect the environment “if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment.”[18]

In their ruling regarding Article 12 in Dispute over the Status and Use of the Waters of the Silala, the ICJ used this precedent from Certain Activities to determine that the wording in Article 12 regarding obligation to notify and consult referring to planned measures “which may have a significant adverse effect” is synonymous with the wording from Certain Activities stating that this obligation is necessary “if there is a risk of significant transboundary harm.”[19]

The Court’s Dubious Standard

While the ICJ may be following wording used by the Court in its decision from Certain Activities,[20] the ruling by the Court in Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) mistakenly equates the judgment in this previous case with the wording of Article 12. While the Court states in its decision regarding Article 12 in Dispute  over the Status and Use of the Waters of the Silala (Chile v. Bolivia) that “both formulations suggest that the threshold for the application of the obligation to notify and consult is reached when the measures planned or carried out are capable of producing harmful effects of a certain magnitude,”[21] it is dubious to claim that deciding measures which “may have a significant adverse effect” and those which carry “a risk of significant transboundary harm” are synonymous for two main reasons.

First, determining that something “may” have an effect establishes a relatively low bar. Nearly all major projects taking place along international watercourses would be expected to bring the possibility that significant adverse effects “may” occur to the environment. With this being introduced into consideration, we would expect the obligation to notify and consult to apply across most instances of such projects. By not focusing on considerations of the word “may” the Court ignores the importance of this word in understanding the requirement to notify and consult.

Second, “adverse effects” are not synonymous with “transboundary harm.” As noted in the first point, adverse effects have the possibility of occurring across a wide variety of projects involving the development and use of international watercourses. Changing this definition to be equated with transboundary harm introduces more uncertainty and speculation as to what defines transboundary harm and what the threshold for something is to truly be harmful. This moves interpretation further from the intended meaning and purpose of the wording of Article 12, and represents a clear, impactful misinterpretation.

Significantly adverse impact should be understood to refer to circumstances in which there is any possibility of actions on international watercourse changing naturally occurring conditions to a meaningful extent. A meaningful extent would be one in which the impact of actions would be clear or visible to the average observer. Of course, every action which takes place on an international watercourse has some effect, an individual or small group interacting with the watercourse would not be expected to have a significant adverse impact, as conditions would under almost all circumstances be expected to return to their original state, as they are minor and short lasting. By contrast, when states or companies take actions to establish continuing developments, the impacts would in essentially all cases carry the possibility that such adverse effects may occur, requiring the obligation to notify and consult relevant parties. While there is no single theory to apply to every single future case heard before the Court, the standard considered in this case regarding Article 12 is troublingly low and has the power to create a precedent with negative consequences for the environment and international cooperation.

[1] Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) (Judgment of 1 December), 2022 I.C.J.

[2] Id. at 17.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at 19.

[7] Id. at 17.

[8] Id. at 19.

[9] Id. at 17.

[10] Id. at 19.

[11] Id. at 20.

[12] Dispute over the Status and Use of the Waters of the Silala (Chile  v. Bolivia) (Application Instituting Proceedings), 2016 I.C.J. Since neither Chile nor Bolivia are party to the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses, customary international law would represent accepted practices in the absence of treaty law.

[13] Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, United Nations Treaty Series, vol. 2999, Doc. A/51/869.

[14] Id.

[15] Id. at 34.

[16] Id.

[17] (Judgment of 16 December), I.C.J. Reports 2015, p. 665. On April 17, 2013, proceedings were joined between the two cases. The ICJ ruled that the subject of the first counterclaim presented by Nicaragua in the Costa Rica v. Nicaragua case, relating to the damage that might result from the construction of the aforementioned road by Costa Rica, was identical in substance to its principal claim in the Nicaragua v. Costa Rica case. As a result of the joinder of the proceedings, there was no need for it to adjudicate on the admissibility of that counterclaim.

[18] Id. at 706-7077.

[19] Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) (Judgment of 1 December), 2022 I.C.J., at 36.

[20] Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), (Judgment of 16 December), I.C.J. Reports 2015, p. 706-707.

[21] Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) (Judgment of 1 December), 2022 I.C.J., at 36.