Transboundary Aquifers between International Water Law and Human Right to Water and Sanitation

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1 Phd Course In Law

Accademic Year

2019/2020 ISBN: XXXXXXXXXXXX

Transboundary Aquifers Between

International Water Law and the

Human Right to Water

Author

Imad Antoine Ibrahim

Supervisor

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Introduction

This thesis aims to examine the development of international law applicable to Transboundary Aquifers (TBAs) while simultaneously considering Human Right to Water and Sanitation (HRWS) that has been adopted in the last decade. This paper’s purpose is to determine how International Water Law (IWL) and the HRWS can be harmonized in the context of TBAs given that the rules and instruments adopted to address this field are relatively nascent and that this field itself is still in the process of developing global regulatory frameworks tackling shared groundwaters. In that sense, the thesis seeks to answer the following question: can IWL and the international human rights agreements complement each other despite the opposing nature of each of these global regulatory frameworks, taking the application of the HRWS to shared groundwaters as a case study? The response to this question requires an analysis of the progressive development of international groundwater law in the general framework of IWL and the challenges facing such development, the evolution of the HRWS through several decades, the nature of transboundary groundwaters, and the interplay between the HRWS and IWL in the context of transboundary groundwaters. The author shall then argue that IWL agreements should include a provision related to the HRWS to ensure the efficiency of this right in the transboundary context and to include such a provision within the nonbinding instrument addressing solely shared groundwaters: the Draft Articles on the Law of Transboundary Aquifers (hereafter Draft Articles) adopted in 2008 through the United Nations General Assembly (UNGA) Resolution. The author will first examine all the legal matters mentioned above. This introduction will provide a brief overview of the interplay between these different topics.

Generally speaking, “More than one‐half of the world's population is dependent on ground water for everyday uses such as drinking, cooking, and hygiene,”1 while “around 98 % of the

1_{Yoram Eckstein & Gabriel Eckstein, Transboundary Aquifers: Conceptual Models for Development of International} Law, 43(5) GROUND WATER. 679, 679 (2005); Renee Martin-Nagle, Fossil Aquifers: A Common Heritage of Mankind, 2(3) JOURNAL OF ENERGY AND ENVIRONMENTAL LAW. 39, 40 (2011).

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world’s liquid freshwater reserves are stored underground”.2_{Moreover, there is no other natural} resource that is being extracted in similar quantities than groundwater and is considered the most extracted source globally,. This is despite being described as a hidden resource, as the amount of water being extracted surpasses the amount being extracted from other raw materials.3 In many places worldwide, this resource is the only reliable freshwater source used for drinking as well as conducting a wide range of other activities.4_{Depending on the state of development of each} country, rules for the protection of groundwater either exist, in the process of development, or are absent entirely.5 The main factors behind the increased use of this resource are related to agricultural and industrial development as well as human population increase. This phenomenon has been exacerbated with the advancement of groundwater management technologies that allowed the provision of this resource to entire nations.6_{The management of this resource is facing} many challenges including its intensive use; fragmentation of the institutional mechanisms dealing with this source; a separate management that does not take into consideration surface water; potential contamination and pollution; lack of sufficient financial and human resources for the development of rules and policies,7 and the hidden nature of groundwater which renders its management task at the state level extremely difficult.8 Moreover, poor management of groundwater resources worldwide further worsened the above-mentioned challenges.9_{Still, as} water scarcity increases, the value of groundwater increases, which will require good governance to manage groundwater resources despite the existing challenges.10 It is in this context that the

2_{Marguerite de Chaisemartin et al., Addressing the Groundwater Governance Challenge: A call from the} “Groundwater Governance: A Global Framework for Action” Project, in FRESHWATER GOVERNANCE FOR THE 21ST CENTURY 205, 206 (Eiman Karar ed., Springer 2017).

3_{Shammy Puri & Wilhelm Struckmeier, Aquifer Resources in a Transboundary Context: A Hidden Resource?-} Enabling the Practitioner to ‘See It and Bank It’ for Good Use, in TRANSBOUNDARY WATER MANAGEMENT: PRINCIPLES AND PRACTICE 73, 75-76 (Anton Earle et al eds., Earthscan 2010).

4_{Geert-Jan Nijsten et al., Transboundary Aquifers of Africa: Review of the Current State of Knowledge and Progress} Towards Sustainable Development and Management, 20 JOURNAL OF HYDROLOGY: REGIONAL STUDIES. 21-34 (2018).

5_{Marco Doveri, Matia Menichini & Andrea Scozzari, Protection of Groundwater Resources: Worldwide Regulations} and Scientific Approaches, in THREATS TO THE QUALITY OF GROUNDWATER RESOURCES:PREVENTION AND CONTROL 13-30 (Andrea Scozzari & Elissavet Dotsika eds., Springer 2015).

6_{Gabriel Eckstein & Yoram Eckstein, A Hydrogeological Approach to Transboundary Ground Water Resources and} International Law, 19(2) AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW. 201, 203 (2003).

7_{Kathrin Knüppe & Claudia Pahl-Wostl, A Framework for the Analysis of Governance Structures Applying to} Groundwater Resources and the Requirements for the Sustainable Management of Associated Ecosystem Services, 25(13) WATER RESOURCES MANAGEMENT. 3387, 3390 (2011).

8_{Pilar Carolina Villar, Groundwater and the Right to Water in a Context of Crisis, 19(1) A}_MBIENTE_&_S_OCIEDADE_. 85, 94 (2016).

9_{Jie Chen et al., Challenges and Prospects of Sustainable Groundwater Management in an Agricultural Plain along} the Silk Road Economic Belt, North-West China, 34(3) INTERNATIONAL JOURNAL OF WATER RESOURCES DEVELOPMENT. 354-368 (2018).

10_{Henry Vaux, Groundwater under Stress: The Importance of Management, 62(1) E}_NVIRONMENTAL_E_ARTH SCIENCES. 19-23 (2011).

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management of TBAs has been considered a very difficult task even when concrete efforts were made to that end.11 Yet, the protection and good governance of this resource is a must,12 as the majority of nations worldwide share aquifers with other countries which makes international cooperation vital for the management of this treasured natural resource.13 Still, it is worth noting that there are many problems concerning the studies of aquifers that complicate its proper management.14

Efforts are being made for the adoption of rules to preserve and ensure a sustainable exploitation of this resource.15 In particular and until recently, groundwater was considered a secondary issue that was not the main focus of policy-makers and legislators in comparison to surface water.16 Yet appropriate legal frameworks in the national and transboundary water context are vital for the adoption of policies tackling the challenges of groundwater management.17_{Such rules not only} prevent the depletion of these resources but also avoid the negative impacts on human health resulting from environmental degradation as natural ecosystems will be destroyed if groundwater is not protected.18 So far, there are at least more than 600 TBAs and aquifer bodies. There are very few agreements that currently address matters related to shared aquifers while also some non-binding arrangements exist at the local levels.19 These treaties include, for instance:

● The agreement ﬁrst made in 1977, then re-negotiated in 2007, by France and Switzerland on the Genevese Aquifer;

● Three agreements on the Nubian Sandstone Aquifer System, made in 1992 and 2000 by Chad, Egypt, Libya, and Sudan;

● The agreement on the Guarani Aquifer, made in 2010 by Argentina, Brazil, Paraguay, and Uruguay; and

11_{E I Golovina, Problems of Groundwater Extraction from Transboundary Aquifers and Complexes, 151(1) IOP} CONFERENCE SERIES:EARTH AND ENVIRONMENTAL SCIENCE.(2018).

12_{Andrew Allan, Mara Tignino & Flavia Loures, The Role and Relevance of the Draft Articles on the Law of} Transboundary Aquifers in the European Context, 8(3) JOURNAL FOR EUROPEAN ENVIRONMENTAL &PLANNING LAW. 231, 232 (2011).

13_{Kirstin Conti, Cooperation over Transboundary Aquifers: Lessons Learned from 10 Years of Experience, in F}_REE FLOW:REACHING WATER SECURITY THROUGH COOPERATION 40, 40 (UNESCO Publishing 2013).

14_{Igor S. Zektser, Investigation of Transboundary Aquifers in Russia: Modern States and Main Tasks, in} TRANSBOUNDARY AQUIFERS IN THE EASTERN BORDERS OF THE EUROPEAN UNION:REGIONAL COOPERATION FOR EFFECTIVE MANAGEMENT OF WATER RESOURCES 79, 81 (Tomasz Nałęcz ed., Springer 2012).

15_{Justin Carlson, A Critical Resource or Just a Wishing Well? A Proposal to Codify the Law on Transboundary} Aquifers and Establish an Explicit Human Right to Water, 26(5) AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW. 1409, 1413 (2011).

16_{Eckstein & Eckstein, supra note 6, at 222-224.}

17_{Robert G. Varady et al., Groundwater Governance: A Global Framework for Country Action 6 (Thematic Paper} No. 5: Groundwater Policy and Governance, April. 2013).

18_{Maria Gavouneli, A Human Right to Groundwater?, 13(3) I}_NTERNATIONAL_C_OMMUNITY_L_AW_R_EVIEW_{. 305, 312} (2011).

19_G_ABRIEL_E_CKSTEIN_,_T_HE_I_NTERNATIONAL_L_{AW OF}_T_RANSBOUNDARY_G_ROUNDWATER_R_ESOURCES_{3-6 (Routledge} 2017).

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● The agreement on the Al-Sag/Al Disi Aquifer, made in 2015 by Jordan and Saudi Arabia.20

There are other international instruments that address TBAs where this issue was once considered as a secondary matter. The main issue addressed shared surface water.21_{Yet, the} characteristics and particularities of TBAs make them different from those related to shared surface waters. Hence, managing this resource requires considering this reality to ensure that the rules stipulated are appropriate,22 especially as governance of shared groundwater is very complicated and in many areas there is a lack of management mechanisms.23 Any international rule for the governance of TBAs must take into account the lack of data on groundwater, the great potential of groundwater being contaminated, and the perception that such water is an open resource.24 According to Gonzalo Hatch Kuri, there is a:

lack of accurate knowledge about the subject in dispute, because groundwater must be inventoried, characterized, and undergo a socio-technical evaluation to give states the information that allows them to adopt a policy in accordance with the nature of transboundary groundwater.25

The above-mentioned issues must be added to a long list of problems affecting transboundary water governance in general, further complicating the task of water management. These issues include inter alia “power imbalances, inadequate attention to rapidly changing biophysical conditions, and a growing array of social actors with a stake in decision making”.26_{The issues and} problems mentioned above should not only be seen from a negative perspective as they can also constitute the incentive to foster international cooperation given the importance of this resource. Despite the lack of concrete global regulatory frameworks addressing the particularities of TBAs, efforts have been made in recent decades by the international community and other actors to establish mechanisms for the governance of this resource.27 In particular, several initiatives have been made in the last few decades to raise awareness of the importance of this resource and for taking concrete action affecting its governance, especially in the transboundary context.28_Despite the state of underdevelopment of international law addressing TBAs, discussions concerning the

20_{Stefano Burchi, Legal Frameworks for the Governance of International Transboundary Aquifers: Pre- and} Post-ISARM Experience, 20 JOURNAL OF HYDROLOGY:REGIONAL STUDIES. 15, 16 (2018).

21_{Eckstein, supra note 19, at 3-6.}

22_{Jamie Linton & David B. Brooks, Governance of Transboundary Aquifers: New Challenges and New Opportunities,} 36(5) WATER INTERNATIONAL. 606-618 (2011).

23_{Christopher Brown, Comparative Approaches to Governance and Management of Water Resources in North} America,VERTIGO (2010).

24_{David B. Brooks & Jamie Linton, Governance of Transboundary Aquifers: Balancing Efficiency, Equity and} Sustainability, 27(3) INTERNATIONAL JOURNAL OF WATER RESOURCES DEVELOPMENT. 431, 431 (2011).

25_{Gonzalo Hatch Kuri, A Joint Management of Transboundary Aquifers: From Asymmetries to Environmental} Protection, 30(59) FRONTERA NORTE. 129, 133 (2018).

26_{Derek Armitage et al., Science–Policy Processes for Transboundary Water Governance, 44 A}_MBIO_{353, 353 (2015).} 27_{Pilar Carolina Villar, International Cooperation on Transboundary Aquifers in South America and the Guarani} Aquifer Case, 59(1) REVISTA BRASILEIRA DE POLÍTICA INTERNACIONAL. 1, 1-5 (2016).

28_{Sharon B. Megdal, Invisible Water: The Importance of Good Groundwater Governance and Management,}_NPJ CLEAN WATER. 1, 1-15 (2018).

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global regulatory frameworks that will hopefully be established are gaining traction given the role of this resource in ensuring water security.29 In fact, there are numerous international instruments and conventions considering surface water and groundwater simultaneously while joint bodies that are addressing initially shared surface water have also begun tackling TBAs. Hence, it is important to recognize that these aquifers have gained some traction and attention. Nonetheless, a lot of work must be done to reach an appropriate level of cooperation among nations.30

Along with the developments mentioned below, the international community has been making efforts in the last few decades to ensure the existence of a fundamental right to water and sanitation for citizens worldwide.31 These steps are being taken because the existing international instruments and conventions formerly did not expressly include the HRWS in their list of rights, even though it was stated that this list is a non-exhaustive one which meant that such rights are included implicitly.32_{To that end, numerous conferences, declarations, statements, and meetings have taken} place since the end of the Second World War and these efforts led to the adoption of the HRWS in 2010 by the UNGA.33 The legal status of this right has developed progressively, initially considering water as a basic need then its current position under international human rights law. The adoption of this right has led to an surge of research articles and studies examining all the aspects related to its adoption, implementation, and relevance where scholars and researchers have had different views on these issues.34 That was extremely important as the adoption of these rights does not guarantee they would be granted to the populations in practice without proper explanations and guidance from the international community. Implementing these rights requires

29_{Francesco Sindico & Stephanie Hawkins, The Guarani Aquifer Agreement and Transboundary Aquifer Law in the} SADC: Comparing Apples and Oranges?, 24(3) REVIEW OF EUROPEAN, COMPARATIVE & INTERNATIONAL ENVIRONMENTAL LAW. 318, 318 (2015).

30_{Raya Marina Stephan, International Water Law for Transboundary Aquifers – A Global Perspective, 4(2) C}_ENTRAL ASIAN JOURNAL OF WATER RESEARCH. 48, 56-57 (2018).

31_A_MANDA_C_AHILL_R_IPLEY_,_T_HE_H_UMAN_R_{IGHT TO}_W_{ATER AND}_I_TS_A_{PPLICATION IN THE}_O_CCUPIED_P_ALESTINIAN TERRITORIES 8-19 (Routledge 2011).

32_{Taniya Malik, Recognition of Human Right to Water under International Law Regime, 1(4) I}_NTERNATIONAL JOURNAL OF APPLIED RESEARCH. 169-172 (2015).

33_B_EN_S_AUL_,_D_AVID_K_INLEY_&_J_AQUELINE_M_OWBRAY_,_T_HE_I_NTERNATIONAL_C_{OVENANT ON}_E_CONOMIC_,_S_{OCIAL AND} CULTURAL RIGHTS: COMMENTARY, CASES AND MATERIALS 900-904 (Oxford University Press 2014); DANIEL AGUIRRE,THE HUMAN RIGHT TO DEVELOPMENT IN A GLOBALIZED WORLD 171-173 (Ashgate 2008).

34_{On this point, see for instance, Ursula Kriebaum, The Right to Water Before Investment Tribunals, 1(1)}_B_RILL_O_PEN LAW. 16-36 (2018); Colin Brown, Priscila Neves-Silva & Léo Heller, The Human Right to Water and Sanitation: A New Perspective for Public Policies, 21(3) CIENCIA &SAUDE COLETIVA. 661-670 (2016); Ralph P. Hall, Barbara Van Koppen & Emily Van Houweling, The Human Right to Water: The Importance of Domestic and Productive Water Rights, 20(4) SCIENCE AND ENGINEERING ETHICS. 849-868 (2014); Takele Soboka Bulto, The Human Right to Water in the Corpus and Jurisprudence of the African Human Rights System, 11 AFRICAN HUMAN RIGHTS LAW JOURNAL. 341-367 (2011); Odeh Al Jayyousi, Water as a Human Right: Towards Civil Society Globalization, 23(2) INTERNATIONAL JOURNAL OF WATER RESOURCES DEVELOPMENT. 329-339 (2007); Erik B. Bluemel, The Implications of Formulating a Human Right to Water, 31(4) ECOLOGY LAW QUARTERLY. 957-1006 (2004).

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changing the ways decision-makers and experts operate.35_{These actors, in addition to civil society} organizations and the communities worldwide, have no legal support for their political and social claims concerning the implementation at the domestic level.36 Indeed, the recognition of the existence of a HRWS may constitute a very important approach to securing water access to communities and people lacking such access.37 Despite the progress that has been made in the last decades and the adoption of the HRWS, numerous populations across the globe still lack basic access to water and sanitation.38 Still, this right is a useful tactic that can be used by those lacking access to water and sanitation since it provides legitimacy to their claims.39 In fact, the main question that these scholars and researchers have attempted to answer is whether the adoption of the HRWS makes a difference in terms of implementation and enforcement of this right at the national and local levels.40_{This question was made in the context where some states have advanced} legislations concerning the HRWS.41_{The response has varied as some scholars have expressed} that the HRWS provides the necessary legal means for ensuring water access while others criticized this right for various reasons. For instance, it has been stated that there is a wide range of political and economic avenues that can be used to secure water access to different communities in need.42

The discussion concerning the HRWS is also taking place in the evolution of this concept. In recent years, academics and researchers have begun examining the application of human rights beyond the borders of states as nations have begun acting beyond their national territories, more often affecting the rights of their citizens and the citizens of developing countries. As a result, the concept of “Extraterritorial Application of Human Rights” has emerged in the literature,43_although

35_{Virginia Roaf, Catarina de Albuquerque & Leo Heller, The Human Rights to Water and Sanitation: Challenges and} Implications for Future Priorities, in EQUALITY IN WATER AND SANITATION SERVICES (Oliver Cumming & Tom Slaymaker eds., Routledge 2018).

36_{Wendy Jepson, Amber Wutich & Leila M.Harris, Water-Security Capabilities and the Human Right to Water, in} WATER POLITICS:GOVERNANCE,JUSTICE AND THE RIGHT TO WATER (Farhana Sultana & Alex Loftus eds., Routledge 2020).

37_{Céline Dubreuil, The Right to Water: From Concept to Implementation 3 (World Water Council, 2006).}

38_{Tiaji Salaam-Blyther, Global Access to Clean Drinking Water and Sanitation: U.S. and International Programs} 4-8 (Congressional Research Service, 10 September 2012).

39_{Karen Bakker, Commons Versus Commodities: Debating the Human Right to Water, in T}_HE_R_{IGHT TO}_W_ATER_: POLITICS,GOVERNANCE AND SOCIAL STRUGGLES 19, 38 (Farhana Sultana & Alex Loftus eds., Earthscan 2012). 40_{John Scanlon, Angela Cassar & Noémi Nemes, Water as a Human Right? 21 (IUCN Environmental Policy and} Law Paper No. 51; IUCN – The World Conservation Union, 2004).

41_{Malcolm Langford, The Right to Water in National Law: A Review, in T}_HE_H_UMAN_R_{IGHT TO}_W_ATER_{115, 115} (Eibe H. Riedel et al eds., Berliner Wissenschafts-Verlag 2006).

42_{Jamie Linton, The Human Right to What? Water, Rights, Humans and the Relation of Things, in T}_HE_R_{IGHT TO} WATER:POLITICS,GOVERNANCE AND SOCIAL STRUGGLES 45, 47, 38 (Farhana Sultana & Alex Loftus eds., Earthscan 2012).

43_{See for instance, Joseph Sinchak, The Extraterritorial Application of Human Rights Treaties: Al Skeini et al. v.} United Kingdom (2011), 3(12) PACE INTERNATIONAL LAW REVIEW ONLINE COMPANION. 416-445 (2013); MICHAŁ GONDEK,THE REACH OF HUMAN RIGHTS IN A GLOBALISING WORLD:EXTRATERRITORIAL APPLICATION OF HUMAN

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some states have questioned the scope of these human right treaties.44_{Debating this concept among} scholars has led to conceptual confusions “in respect of the relationship between the meaning and functions of the notions of territory, jurisdiction and sovereignty within the body of human rights law”45_{. In general, this principle means that a state bears an international legal obligation to respect,} comply and ensure the realization of human rights beyond its national territories. This goes against the traditional notion of state responsibility for human rights violations that is usually applied in cases of violations of the population located within a given state.46 Stretching the applicability of human rights beyond states borders occurred mainly because of globalization and transnationalization as well as many other factors. States, because of these factors, have begun influencing human rights globally beyond their jurisdictions while powerful private actors such as Multinational Companies (MNCs) are also capable of affecting human rights worldwide. To that end, there was a need to stretch the obligations originating from human rights beyond national territories. In this context, the debate concerned not only whether states have an obligation to respect and prevent human rights violations but also whether states have positive obligations of protecting and fulfilling human rights.47 The operation of these states worldwide and the increasing complexities of these operations have even pushed scholars to suggest the revision of the extraterritorial concept to cover these increasingly complex operations, thus ensuring that no human rights violations can go unnoticed.48 Such revision was also suggested to address the global operations of private actors. Few measures have been proposed to hold these companies accountable for their human rights performance after analysis of the current mechanisms in place.49 Since these actors are constantly asserting their powers abroad, this may affect the rights of individuals located in places where the topic of extraterritorial application of human rights is already a pressing issue and will remain as such in the near future.50 This issue has been raised

RIGHTS TREATIES (Intersentia 2009); Galia Rivlin, Constitutions Beyond Borders: The Overlooked Practical Aspects of the Extraterritorial Question, 30 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL 135, 137 (2012).

44_{Aldo S. Zilli, Approaching the Extraterritoriality Debate: The Human Rights Committee, the U.S. and the ICCPR,} 9(2) SANTA CLARA JOURNAL OF INTERNATIONAL LAW. 399, 410 (2011).

45_M_AARTEN_D_EN_H_EIJER_,_E_{UROPE AND}_E_{XTRATERRITORIAL}_A_SYLUM_{60 (Hart Publishing 2012).}

46_{Ralph Wilde, The Extraterritorial Application of International Human Rights Law on Civil and Political Rights, in} ROUTLEDGE HANDBOOK OF INTERNATIONAL HUMAN RIGHTS LAW 635-661 (Scott Sheeran & Sir Nigel Rodley eds., Routledge 2013).

47_{Ibrahim Kanalan, Extraterritorial State Obligations Beyond the Concept of Jurisdiction, 19(1) G}_ERMAN_L_AW JOURNAL. 43, 43-44 (2018).

48_{Abe Chauhan, A Causal Model for the Extraterritorial Application of Human Rights Treaties, (VIII)}_T_HE_O_XFORD UNIVERSITY UNDERGRADUATE LAW JOURNAL. 107, 134-135 (2019).

49_{Cantu Rivera Humberto, Developments in Extraterritoriality and Soft Law: Towards New Measures to Hold} Corporations Accountable for their Human Rights Performance?, 14 ANUARIO MEXICANO DE DERECHO INTERNACIONAL. 727-763 (2014); Rachel Chambers, An Evaluation of Two Key Extraterritorial Techniques to Bring Human Rights Standards to Bear on Corporate Misconduct: Jurisdictional Dilemma Raised/Created by the Use of the Extraterritorial Techniques, 14(2) UTRECHT LAW REVIEW. 22-39 (2018).

50_{Beth Van Schaack, The United States Position on the Extraterritorial Application of Human Rights Obligations:} Now is the Time for Change, 90 INTERNATIONAL LAW STUDIES. 20, 20-21 (2014).

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before different international and national tribunals where the approach was in favor of the concept placing specific conditions on its application.51

Among the human rights that were examined in the context of their potential extraterritorial application, the HRWS was analyzed--particularly in the transboundary context. A state can violate the HRWS of citizens residing in developing countries without having sovereignty over that country. In the transboundary context, a state’s action affects this right by, for instance, reducing the volume of water accessible to the population of another state, allowing pollution emanating from its territory to affect the shared water or denying access to shared waters. It is situations such as this that the exterritorial responsibility of a state for the violation of the HRWS takes place.52 In that sense, the exterritorial application of human rights occurs every time a state--through its management and use practices--negatively affects the use of water of populations residing in another state with shared water.53_{The basis of such right is found in international} human rights treaties that shall be examined in the following chapters when this principle is being analyzed.54 In accordance with this right, states have specific obligations that must be complied with and which are analyzed in the below chapters.55 The concept of extraterritorial application of the human right to water has received criticisms and objections from certain states, stating that they only have an obligation to fulfill the right to water and sanitation to their citizens and not to other nations.56 In contrast, other actors including states and civil society organizations have been examining this issue to determine its significance and how it can be implemented in the general framework of international human rights law,57 in particular in cases of extraterritorial human rights violations.58 For instance, the question of access to recuperations to victims of the violation of this right is being stressed upon as scholars such as Takele Soboka Bulto consider the extraterritorial application of the human right to water incomplete without effective access to

51_{Oona A. Hathaway et al, Human Rights Abroad: When Do Human Rights Treaty Obligations Apply} Extraterritorially?, 43 ARIZONA STATE LAW JOURNAL. 389, 389-426 (2011).

52_{Takele Soboka Bulto, Towards Rights-Duties Congruence: Extraterritorial Application of the Human Right to} Water in the African Human Rights System, 29(4) NETHERLANDS QUARTERLY OF HUMAN RIGHTS. 491, 500 (2011). 53_{Roberta Greco, The Silala Dispute: Between International Water Law and the Human Right to Water, 39 Q}_UESTIONS IN INTERNATIONAL LAW. 23, 35 (2017).

54_{Colin Brown & Léo Heller, Development Cooperation in Water and Sanitation: is it Based on the Human Rights} Framework?, 22(7) Ciência & Saúde Coletiva. 2247-2256 (2017).

55_{Michael Windfuhr, Water for Food: A Human Rights Obligation: How States can Manage Conflicts Between the} Human Right to Water and the Human Right to Adequate Food 21 (German Institute for Human Rights, December 2013).

56_{Nora Hansén, The Human Right to Water and its Status in International Law 50 (Thesis in Public International Law,} Faculty of Law, Stockholm University, 2018).

57_{Amanda Cahill-Ripley, Protecting Rights in the Face of Scarcity: The Right to Water, in U}_NIVERSAL_H_UMAN_R_IGHTS AND EXTRATERRITORIAL OBLIGATIONS 194, 213-214 (Mark Gibney & Sigrun Skogly eds., University of Pennsylvania Press 2010).

58_{Christina Leb, The Right to Water in a Transboundary Context: Emergence of Seminal Trends, 37(6) W}_ATER INTERNATIONAL. 640-653 (2012).

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remedies.59_{Indeed, the discussion revolving around this concept cannot be detached from the} general debate concerning the extraterritorial applications of International Human Rights Law (IHRL) as numerous criticisms and objections to this application in the general context also apply to the right to water.60 The extraterritorial applicability of this right in the context of transboundary freshwaters connects with IWL given the existence of extraterritorial obligations within international water conventions and instruments.61

The discussion that should take place must also consider the development and current status of IWL. This field has witnessed gradual evolvement over the many decades since the Second World War.62 Yet, the focus has mainly been on establishing rules regulating the non-navigational uses of international watercourses while TBAs were not given the same attention as surface waters. As a result , there is a gap between the current conventions in use that were originally established to address transboundary surface water where TBAs were added without considering the particularities of these aquifers.63 The international community has sought to bridge this gap in recent years with the focus solely on establishing rules addressing TBAs. It managed to establish a set of nonbinding rules through an instrument that was adopted in 2008 and was subject to countless criticisms from international water lawyers, states, and civil society organizations.64 Since then, international water lawyers and scholars have been examining the ways through which the various IWL conventions and instruments could be reconciled, especially as numerous contradictions and overlaps have been noticed between provisions of legal mechanisms. Numerous suggestions have been made where the pros and cons of each one of them have been analyzed in detail.65 Still, for the time being, no international convention solely addressing TBAs has been adopted by the international community and the 2008 instrument requires updating or amendment while numerous scholars call for the adoption of a completely new convention. In a way, IWL as a legal field has gone through fragmentation given the existence of different sources of water that require regulation, the particularities of each source, and the lack of scientific understanding in the

59_T_AKELE_S_OBOKA_B_ULTO_,_T_HE_E_{XTRATERRITORIAL}_A_{PPLICATION OF THE}_H_UMAN_R_{IGHT TO}_W_{ATER IN}_A_FRICA₂₆₄ (Cambridge University Press 2014).

60_{See for instance on the connection between the extraterritorial application of the right to water and other rights, Ilias} Kouskouvelis & Kalliopi Chainoglou, Against the Law: Turkey’s Annexation Efforts in Occupied Cyprus, 29 HAGUE YEARBOOK OF INTERNATIONAL LAW. 55, 83-84 (2018).

61_{Greco, supra note 53, at 23-37.}

62_C_HRISTINA_L_EB_,_C_{OOPERATION IN THE}_L_{AW OF}_T_RANSBOUNDARY_W_ATER_R_ESOURCES_{42-70 (Cambridge University} Press 2013).

63_{Margaret J. Vick, International Water Law and Sovereignty: A Discussion of The ILC Draft Articles on the Law of} Transboundary Aquifers, 21(2) GLOBAL BUSINESS &DEVELOPMENT LAW JOURNAL. 191 (2008); Gabriel E. Eckstein, Managing Buried Treasure Across Frontiers: The International Law of Transboundary Aquifers, 36(5) WATER INTERNATIONAL. 573-583 (2011).

64_{Joseph W. Dellapenna, The Customary Law Applicable to Internationally Shared Groundwater, 36(5) W}_ATER INTERNATIONAL. 584-594 (2011).

65_{Eckstein & Eckstein, supra note 1, at 537-610; Christine Traversi, The Inadequacies of the 1997 Convention on} International Water Courses and 2008 Draft Articles on the Law of Transboundary Aquifers, 33(2) HOUSTON JOURNAL OF INTERNATIONAL LAW. 453-488 (2011).

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past and even current aspects surrounding transboundary water management.66_{Therefore, the} discussions that took place decades ago addressed the question of harmonization of IWL and the focus was on tackling this issue while the relation between this field and other legal fields--despite its importance--was seen as a secondary matter given that IWL was an emerging field requiring the setting of a firm basis.67 Moreover, this situation occurred as other fields such as IHRL were developing in parallel to IWL, which means that numerous developments only emerged recently.68 Still, it is important to create synergies between different international legal fields that are connected--in this case IWL and the HRWS in the context of international human rights law.

The discussion revolving around international groundwater law and the HRWS cannot be conducted without also focusing on the existing problems affecting IWL in general. A discussion over the need to bridge the fragmentation of these two legal fields requires the analysis of the fragmentation taking place in the framework of IWL.69_{The only way to tackle the fragmentation} of international groundwater law and international human rights law, in this case the HRWS is also figuring out how this issue could be dealt with in the general context of fragmentation of IWL. Moreover, there is a need to figure out how tackling this matter may be done in a way that also affects positively the issue of fragmentation of IWL and even solve it.

This thesis is tackling two types of fragmentation simultaneously. Where the fragmentation of IWL has been the subject of debate for many decades, the literature concerning the importance of creating synergies between IWL and the HRWS has only emerged in the last few years.70 Yet, the discussion concerning this issue is extremely relevant to the fragmentation of IWL since among the matters being examined in the literature is the need to update international water agreements given the constant scientific, technical, and legal developments that are taking place. Between the drafting of the international water convention and its adoption and ratification--which took decades--many issues have emerged which need to be considered.71 One such issue is the adoption of the right water in 2010, which was adopted after the two existing international water conventions

66_{Gabriel Eckstein & Francisco Sindico, The Law of Transboundary Aquifers: Many Ways of Going Forward, but} Only One Way of Standing Still, 23(1) REVIEW OF EUROPEAN,COMPARATIVE &INTERNATIONAL ENVIRONMENTAL LAW. 32-42 (2014); Raya Marina Stephan, The Draft Articles on the Law of Transboundary Aquifers: The Process at the UN ILC, 13(3) INTERNATIONAL COMMUNITY LAW REVIEW. 223-235 (2011).

67_{Alistair Rieu-Clarke, Andrew Allan, Sarah Hendry eds., R}_OUTLEDGE_H_{ANDBOOK OF}_W_ATER_L_{AW AND}_P_OLICY (Routledge 2017).

68_{On this point see, Jochen Von Bernstorff, The Changing Fortunes of the Universal Declaration of Human Rights:} Genesis and Symbolic Dimensions of the Turn to Rights in International Law, 19(5) EUROPEAN JOURNAL OF INTERNATIONAL LAW. 903-924 (2008); Dinah Shelton, International Human Rights Law: Principled, Double, or Absent Standards, 25(2) LAW &INEQUALITY. 467-513 (2007).

69_A_TTILA_T_ANZI_,_T_HE_C_{ONSOLIDATION OF}_I_NTERNATIONAL_W_ATER_L_AW_:_A_C_OMPARATIVE_A_{NALYSIS OF THE}_UN_AND UNECEWATER CONVENTIONS (Editoriale scientifica 2017).

70_{Attila Tanzi, Reducing the Gap Between International Water Law and Human Rights Law: The UNECE Protocol} on Water and Health, 12(3) INTERNATIONAL COMMUNITY LAW REVIEW. 267-285 (2010).

71_{Joyeeta Gupta, The Watercourses Convention, Hydro-hegemony and Transboundary Water Issues, 51(3) T}_HE INTERNATIONAL SPECTATOR. 118-131 (2016).

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and even after the 2008 instrument solely addressing TBAs.72_{As such, there is a need to examine} this topic, especially as IWL has adopted its own version of the right water within the existing water conventions and instruments where the concept used is called “vital human needs”.73_This discussion has further importance in the context of TBAs given the particularities surrounding these aquifers and their importance for securing drinking water for populations. Moreover, the absence of a binding instrument addressing only TBAs provides an opportunity to examine the ways the provisions of the future instrument can consider the HRWS in contrast to surface water--where the existing conventions are already ratified after huge efforts and where their amendment is not foreseeable for the time being.74

To examine all the above issues and their interplay, this thesis shall start with a conceptual chapter related to the topic of fragmentation of international law. This will provide the readers with the legal background on the basis of which the detailed debate shall be conducted later. The chapter will provide an overview of the development of the concept of fragmentation of international law, fragmentation of international environmental law, and international human rights law. It will then examine the development of IWL and the existing interplays between the different legal systems. The following chapter shall then discuss the historical development of international groundwater law--mainly after World War II. It will examine all aspects related to the evolution of the international law applicable to TBAs in the general context of the development of IWL, given that international groundwater law has been heavily affected by the gradual codification of IWL. The next chapter will examine the legal dilemmas surrounding the law of TBAs. In particular, it will analyze the 2008 instrument that was adopted by the international community, the criticisms against this instrument, and its flaws, also taking into consideration the general context of the development of IWL. Mainly, the chapter will analyze the problems arising due to the scope of the instrument and those arising because of its substantive norms. Before proceeding to analyze the interplay between the law of TBAs and the right to water, this thesis will examine the legal classification of TBAs. Throughout the chapter, the different potential classifications of TBAs (common good, economic good, public good, human right, and quasi commodity) and the implications of each classification will be assessed. Such analysis is vital before embarking on a study of the interplay between the HRWS and the law of TBAs, which will be discussed in the following chapter. Throughout this chapter, the extraterritorial nature of human rights obligations and the ones related to the HRWS will be examined in addition to the interplay between the HRWS and IWL. The final section of this chapter will draw a conclusion related to

72_{Salman M.A. Salman, The Human Right to Water and Sanitation: Is the Obligation Deliverable?, 39(7) W}_ATER INTERNATIONAL. 969-982 (2014); Leila M. Harris, Lucy Rodina & Cynthia Morinville, Revisiting the Human Right to Water from an Environmental Justice Lens, 3(4) POLITICS,GROUPS, AND IDENTITIES. 660-665 (2015).

73_{See for instance, Claudia Cinelli, A New Human Rights-Based Approach to the UN Watercourses Convention, 38(2)} WATER INTERNATIONAL. 180-191 (2013).

74_{Chusei Yamada, Codification of the Law of Transboundary Aquifers (Groundwaters) by the United Nations, 36(5)} WATER INTERNATIONAL. 557-565 (2011).

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the implication of this debate on the 2008 instrument. The next chapter of this thesis will examine the arguments for the inclusion of a human right provision within international groundwater law and then examine how such a suggestion may fit in the general context of the debate concerning the harmonization of IWL. In other words, which of the suggestions made for the harmonization of IWL would best fit with the adoption of HRWS in the law of TBAs? The author hopes that international water lawyers; scholars, water professionals as well as policymakers seeking to understand the deep problems connected with the regulation of transboundary aquifers and their interplay in the context of this book with the HRWS would benefit from the analysis provided in their research and practical activities related to the governance of transboundary aquifers.

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Chapter One: Situating the Debate

This chapter provides a conceptual overview of the different legal matters that are related to the debate that shall take place in the following chapters. The objective is to provide the readers with the general context before focusing on the specific topic examined in this thesis. The focus of this chapter is on first situating the debate in the general framework of fragmentation of international law that has been examined thoroughly in the literature in the last few decades75, then proceeding to focus on the fragmentation of international environmental law. Following this, the author will examine the development of the fields of IWL and IHRL: two of the fields being examined in this thesis within the context of TBAs where the interplay between IWL applicable to TBAs and IHRL--mainly the HRWS and its related instruments--are analyzed in detail in the following chapters.

On the Phenomenon of the Fragmentation of International Law

The fragmentation of the international legal system is not a new phenomenon as agreements related to issues such as economy, trade, or politics were adopted since the Second World War. Yet, these agreements had sufficient virtual isolation which prevented huge obstacles from occurring, particularly during the Cold War.76 International law has always had general rules as well as regulations that are more specific. The difference between this situation and fragmentation is that the latter highlights a phenomenon in which specialized and technical legal regimes have greatly multiplied, pushing scholars to either support this development or view it with suspicion.77 States establish specialized international legal regimes when general international public law is seen as inadequate or insufficient to address particular issues where these regimes have their own agendas. In that sense, courts established in the context of these regimes will use the general interpretations of international public law, further pushing the development of their regimes and ensure that the regulatory needs are tackled effectively.78 Concerns about fragmentation mainly occurred after the

75_{On the concept of fragmentation of international law, see in general, P}_HILIPPA_W_EBB_,_I_NTERNATIONAL_J_UDICIAL INTEGRATION AND FRAGMENTATION (Oxford University Press 2013); MARGARET A. YOUNG (EDS.), REGIME INTERACTION IN INTERNATIONAL LAW:FACING FRAGMENTATION (Cambridge University Press 2012); Bruno Simma, Universality of International Law from the Perspective of a Practitioner, 20(2) European Journal of International Law. 265–297 (2009); Anne van Aaken, Defragmentation of Public International Law Through Interpretation: A Methodological Proposal, 16(2) INDIANA JOURNAL OF GLOBAL STUDIES. 483- 512 (2009); Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15(3) LEIDEN JOURNAL OF INTERNATIONAL LAW. 553-579 (2002).

76_{Joost Pauwelyn, Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands,} 25(4) MICHIGAN JOURNAL OF INTERNATIONAL LAW. 903, 903 (2004).

77_{Tim Stephens, Multiple International Courts and the ‘Fragmentation’ of International Environmental Law, 25} AUSTRALIAN YEARBOOK OF INTERNATIONAL LAW. 227, 228 (2006).

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Cold War as many were looking to further the development of international law that was unable to realize its full potential earlier because of the political situation.79 Nonetheless, several factors (mainly the collapse of the Soviet Union, the emergence and increasing role of new international organizations and Non-Governmental Organizations (NGOs), Multinational Companies (MNCs), as well as non-traditional sources of international norms) led to the conclusion of multiple multilateral treaties as well as the establishment of new organizations and international tribunals in the 1990s. This created fear that such organizations and tribunals would develop their own interpretation of the international legal system.80 Fragmentation of international law is also further increasing as international tribunals are acting as independent jurisdictions and NGOs are being perceived as autonomous lawmakers.81 Indeed, the emergence of numerous international tribunals contrasts the situation that was the norm until the 1950s when there was only a world court. Such development was attributed to many factors including the increasing efficiency of international obligations.82 This reality pushed the International Law Commission (ILC) to tackle this topic in the 2000s, resulting in the adoption of several reports on the issue.83 From a functional perspective, fragmentation occurred because of the lack of a centralized world authority with the task of legislating, the division of labour at the domestic level between the different governmental departments tasked with negotiating a particular topic at the international level, and globalization which resulted in the occurrence of worldwide problems requiring specific regulations. From a political perspective, states have different views and priorities when negotiating treaties which results in the formation of different regimes that also have exceptions within the texts.84

Specialized global cooperation networks are emerging as a result of globalization. Yet, neither national laws nor traditional international law are sufficient for regulating these networks or have the capacity to tackle the objectives of each network. Therefore, these global networks have created their own rules that may be either formal or informal and are usually developed through intergovernmental cooperation with the help of intergovernmental organizations. The establishment of such specialized treaties and laws does not take into consideration the rest of the rules at the international level, which led to the fragmentation of international law into specialized

79_{Jacob Katz Cogan, The Idea of Fragmentation, 105 P}_{ROCEEDINGS OF THE}_ASIL_A_NNUAL_M_EETING_{. 123, 124 (2011).} 80_{Anne Peters, The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization,} 15(3) INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW. 671, 671–704 (2017).

81_{Mario Prost & Paul Kingsley Clark, Unity, Diversity and the Fragmentation of International Law: How Much Does} the Multiplication of International Organizations Really Matter?, 5(2) CHINESE JOURNAL OF INTERNATIONAL LAW. 341, 356 (2006).

82_{Alexander Kunzelmann, An Australian International Law: The Impact of Australian Courts on the Fragmentation} of International Law, 27 AUSTRALIAN YEARBOOK OF INTERNATIONAL LAW. 225, 229 (2008).

83_{Peters, supra note 80, at 671–704.} 84_Id.

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rules that are not connected.85_{New specialized and autonomous rules and institutions have} emerged in the global arena, taking the form of specialist systems such as international trade law and international environmental law. This development occurred due to ignorance of the legislative frameworks and institutional works of different fields as well as the lack of knowledge of general principles and practices of international law. This situation resulted in “conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on the law”.86_{Despite these negative consequences, this fragmentation also highlights how} international legal activity has been expanding over the years to cover novel topics and sectors, since specialized laws are usually developed to respond to a special need for regulation due to the existence of specific concerns.87 This conclusion results from the work of the ILC on fragmentation, and their report received both support and criticism by different scholars.88_The emergence of specialized legal regimes having their specific sets of norms, conventions and institutions does not mean that these regimes are independent of the international legal order, as they use the existing general international legal bodies and rules to fill the gaps within their systems.89 These specialized regimes are the result of growth in interstate cooperation in the last few decades due to globalization which also led to the expansion of international law to cover the new areas of cooperation.90_{One of the many factors that contributed to the emergence of} specialized legal systems is the increase in international problems that require global solutions through transnational cooperation.91 The status of self-contained regimes that have emerged or are currently emerging is not the same as some regimes--such as international economic law--have a well-established base in contrast to other regimes.92 Many international treaties belonging to different specialized legal systems occasionally include mechanisms that help to alleviate fragmentation. These mechanisms are called emergency exceptions that can be used by states to justify their non-compliance with the provisions of the treaty as other concerns that had primacy at that time.93 Fragmentation became further complicated with the increasing reliance on soft law

85_{Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi, Fragmentation} of International Law: Difficulties Arising from the Diversification and Expansion of International Law 244-245 (International Law Commission; Fifty-eighth session Geneva, 1 May-9 June and 3 July-11 August 2006).

86_{Id. at 11.} 87_{Id. at 14.}

88_{Sean D. Murphy, Deconstructing Fragmentation: Koskenniemi's 2006 ILC Project, 27(2) T}_EMPLE_I_NTERNATIONAL &COMPARATIVE LAW JOURNAL. 293, 293-308 (2013).

89_{Pierre-Marie Dupuy, A Doctrinal Debate in the Globalisation Era: On the "Fragmentation" of International Law,} 1(1) EUROPEAN JOURNAL OF LEGAL STUDIES. 1-19 (2007).

90_{Luis Barrionuevo Arevalo, The Multiplication of International Jurisdictions and the Integrity of International Law,} 15(1) ILSA JOURNAL OF INTERNATIONAL &COMPARATIVE LAW. 49, 51 (2008).

91_{Michele Emily Olivier, Globalisation or Fragmentation of International Law: Challenges for Harmonisation, D}_E JURE. 437, 439 (2008).

92_{Ewelina Cala-Wacinkiewicz,} _{International Law} _{-Between Division (Fragmentation) and Unity} (Constitutionalisation). Law of Divisions or Law Beyond Boundaries?, 12 US-CHINA LAW REVIEW. 768, 772 (2015). 93_{Christina Binder, Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited,} 25(4) LEIDEN JOURNAL OF INTERNATIONAL LAW. 909, 909-934 (2012).

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instruments that are not binding in nature but are important in situations where no consensus has been reached concerning the establishment of binding mechanisms.94

The phenomenon of fragmentation can have different meanings depending on the interpretation of the concept.95 There are several different forms of fragmentation, depending on the different authors that deal with this classification. For instance, the ILC distinguished three types of fragmentation. The first is associated with different interpretations of general international law whereby such conflicts may result in diminishing legal security since it would be unclear on the manners in which institutions would interpret different laws. Legal subjects may be discriminated against depending on the interpretation of the general law provided by the jurisdiction with decision-making powers.96 The second type of fragmentation is the result of a conflict in which an institution deviates from the norm stipulated within a general law, providing a new resolution which would constitute the exception to the general rules. The third type of fragmentation is related to the conflict between special laws where the legal interpretation plays an important role in deciding which type must apply.97 Anne Peters distinguished

functional fragmentation from regional (geographic/territorial) fragmentation and institutional fragmentation (different treaties, organisations, bodies, courts) and the ideational fragmentation (different objectives and values).

She also made a distinction between “fragmentation in law-making and fragmentation in law application”.98_{Moreover, Harlan Grant Cohen divided fragmentation into three types:}

1) the first is when a specialized legal system is interpreted differently by various bodies and tribunals where each entity claims to have the competence to tackle the dispute 2) the second is when different specialized legal regimes may cover the same issue at hand where these regimes may be championing different concerns or philosophies 3) the third type of fragmentation is the fragmentation of legitimacy rules where specialized legal systems have different interpretation and source of legitimacy where state consent in many cases is no longer the main source of legitimacy.99

According to Adrian Nastase & Bogdan Aurescu, conflict of laws can occur in the following forms:

the conflict between different understandings or interpretations of general International Law, the conflict arising when a special norm of International Law applies, this deviating from the general

94_{Pemmaraju Sreenivasa Rao, Multiple International Judicial Forums: A Reflection of the Growing Strength of} International Law or Its Fragmentation?, 25(4) MICHIGAN JOURNAL OF INTERNATIONAL LAW. 929, 931 (2004). 95_F_LAVIA_L_ATTANZI_{, Introduction, in T}_HE_D_{IVERSIFICATION AND}_F_{RAGMENTATION OF}_I_NTERNATIONAL_C_RIMINAL LAW 1, 1 (Larissa van den Herik & Carsten Stahn eds., Brill/Nijhoff 2012).

96_{Report of the Study Group of the International Law Commission, supra note 85, at 31-33.} 97_{Id. at 33-34.}

98_{Peters, supra note 80, at 672-674.}

99_{Harlan Grant Cohen, From Fragmentation to Constitutionalization, 25(1) P}_ACIFIC_M_C_G_EORGE_G_LOBAL_B_USINESS &DEVELOPMENT LAW JOURNAL.381, 384-389 (2012).

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International Law, the conflict arising when specialized fields of International Law seem to be in conflict with each other.100

Finally, Marcelo Dias Varella argued that conflicts in the context of fragmentation may occur: “among different subsystems; between a subsystem and individual actors in a global society; and within a subsystem and its own rational standards understood as necessary to expansion”.101 Hence, it can be observed that the exact definition and characteristics of fragmentation of international law are still being debated among scholars given the centrality of this concept to international law and global legal order.

Pros and Cons of Fragmentation

This phenomenon has been widely debated in the literature where scholars have examined the advantages and disadvantages of fragmentation. Opponents of fragmentation argue that each new specialized field has its own institutions, communities, academics, negotiators, enforcement mechanisms, and NGOs, which makes it extremely difficult to create a coherent international system. In case of conflicts, it is very hard to solve disputes objectively as each specialized field has its own provisions. Even when attempts to balance different and specialized systems take place, it is often the values and rules of one system that dominate while the others are seen as an exception.102 In fact, the proliferation of international tribunals acting in the name of the different specialized legal regimes and attempting to further extend the influence of a particular regime has raised concerns given the lack of a centralized structure at the international level that provides hierarchy and acts as an authority.103 Tribunals addressing different specialized legal systems disagree over the interpretation and meaning of specific treaties even though these actors belong to the same international law community.104 As a result of fragmentation, a state may be subject to contradictory international obligations or contradictory decisions issued by different tribunals applying various specialized legal orders.105_{The existence of specialized legal regimes with their} own set of specific rules may create isolated legal orders with their own understanding and interpretation of the general principles of international public law resulting in the transformation

100_{Adrian Nastase & Bogdan Aurescu, The Strategic Role of International Law in Contemporary International} Society, 1 ROMANIAN JOURNAL OF INTERNATIONAL LAW. 15, 19 (2003).

101_{Marcelo Dias Varella, Central Aspects of the Debate on Complexity of International Law, 27 E}_MORY INTERNATIONAL LAW REVIEW.1, 20 (2013).

102_{Ralf Michaels & Joost Pauwelyn, Conflict of Norms or Conflict of Laws?: Different Techniques in the} Fragmentation of International Law, 22(3) DUKE JOURNAL OF COMPARATIVE &INTERNATIONAL LAW. 349-376 (2012).

103_{Panagiotis Delimatsis, The Fragmentation of International Trade Law, 45(1) J}_{OURNAL OF}_W_ORLD_T_RADE_{. 87,} 87-90 (2011).

104_{Harlan Grant Cohen, Finding International Law, Part II: Our Fragmenting Legal Community, 44 N}_EW_Y_ORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS. 1049, 1049-1056 (2012).

105_{Salem Hikmat Nasser, Global Law in Pieces Fragmentation, Regimes and Pluralism 13 (São Paulo Law School of} Fundação Getulio Vargas – FGV DIREITO SP Research Paper Series – Legal Studies, Paper n. 105, August 2014).

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of the system.106_{The existence of multiple sets of international rules pushes the proponents of each} legal regime to provide arguments as to why the rules of this particular regime should apply.107 The absence of a centralized authority at the international level led to the adoption of norms that are “imprecise, contested, internally contradictory, overlapping, and subject to multiple interpretations and claims”.108_{Indeed, one specialized legal system may prevent the realization of} the objectives of another one. Legal certainty in this context may be eroded due the existence of a multitude of institutions that may have overlapping jurisdictions or seek to interpret a case through the lens of different rules. Moreover, there is the possibility of losing the coherence, consistency, and unity of international law.109 It is in this context that international law has been criticized where it was even stated that it is not an actual legal system since the law is unclear or unknowable, therefore ineffective.110_{Eyal Benvenisti & George W. Downs argue that}

fragmentation operates to sabotage the evolution of a more democratic and egalitarian international regulatory system and to undermine the normative integrity of international law.111

In that sense, weaker states lose their ability to bargain with stronger states given that they are more in numbers and are diverse from an economic, institutional, and geographic perspective, which makes reaching a consensus over an issue very unlikely given the difference in preferences. Hence, fragmentation through treaty specific issues provides more advantages to powerful states. The existence of different institutions provides powerful states with the ability to threaten to favor one institution or one specialized legal system over another in order to be more aligned with their interests, further marginalizing the role of small states. In fact, a fragmented legal system is seen as a way to receive the same advantages as before in a less visible manner given that hierarchies are questioned.112

In contrast, proponents argue that specialized agencies focusing on a particular branch of international law will result in the development of a more appropriate regulatory framework. Competition among different regulatory agencies provides the necessary incentives for increasing efficiency and the establishment of new legal instruments.113 The existence of fragmented norms may lead to the development of better norms as competition among different norms may lead to

106_{N. Jansen Calamita, Countermeasures and Jurisdiction: Problems of Asymmetry, Fragmentation and Effectiveness,} 42(2) GEORGETOWN JOURNAL OF INTERNATIONAL LAW. 233, 237 (2011).

107_{Gerhard Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25(4) M}_ICHIGAN_J_{OURNAL OF} INTERNATIONAL LAW. 849, 856 (2004).

108_{Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122(7)} HARVARD LAW REVIEW. 1791, 1803 (2009).

109_{Peters, supra note 80, at 671–704.}

110_{Goldsmith & Levinson, supra note 108, at 1803.}

111_{Eyal Benvenisti & George W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of} International Law, 60(2) STANFORD LAW REVIEW. 595, 597 (2007).

112_{Id. at 597-598.}