¹ Geoffrey E. Petts, Impounded Rivers: Perspectives for Ecological Management 1 (1984); Peter H. Gleick, An Introduction to Global Fresh Water Issues, in Water in Crisis 3, 3–4 (Peter H. Gleick ed., 1993).

² On the definition of international water resources for non-navigational purposes, see part III infra.

³ “Optimal” is used here and throughout this article in the sense of Pareto-optimality. See infra note 25.

⁴ The ILA has been very productive and influential in the clarification and development of this law. Among the ILA’s most notable contributions are the Helsinki Rules, 52 ILA, Conference Report 484 (1966), and the Seoul Rules, 62 Conference Report 251 (1986).

⁵ The ILC’s work on this subject, beginning in 1971, culminated in 1994 with the adoption of 33 draft articles on the law of non-navigational uses of international watercourses and a resolution on confined transboundary ground water. The ILC submitted these instruments to the United Nations General Assembly and recommended the elaboration of a convention on the basis of the draft articles. See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 195, UN Doc. A/49/10 (1994) [hereinafter 1994 ILC Report].

⁶ For recent writing on the potential insights into international law of international relations theory, see Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989) (referring to game-theoretic analysis of international norms); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205 (1993); Shirley V. Scott, International Law as Ideology: Theorizing the Relationship between International Law and International Politics, 5 Eur. J. Int’l L. 313 (1994).

⁷ The Sixth Committee of the UN General Assembly generally supported the ILC’s suggestions. See UN Docs. A/C6/49/SR.17–28 (1994). The General Assembly then invited states to submit, not later than July 1, 1996, comments and observations on the draft articles, and decided that the Sixth Committee would convene as a working group of the whole in October 1996 to elaborate a framework convention on the basis of these articles. GA Res. 49/52, UN GAOR, 49th Sess., Supp. No. 49, Vol. 1, at 293, UN Doc. A/49/49 (1994).

⁸ Karl A. Wittfogel, Oriental Despotism: A Comparative Study of Total Power 8 (1957).

⁹ Id. at 109.

¹⁰ See Zvi Y. D. Ron, Qanats and Spring Flow Tunnels in the Holy Land, in Qanat, Kariz and Khattara: Traditional Water Systems in the Middle East and North Africa 211 (Peter Beaumont, Michael Bonine & Keith McLachlan eds., 1989). Some tunnels were 50, 100, and in one place even 225 meters long. Id. at 224. See also Zvi Y. D. Ron, The Utilization of Springs for Irrigated Agriculture in thefudea Mountains, in 1 Judea and Samaria 230 (Avshalom Shmueli, David Grossman & Rehav’am Ze’evi eds., 1977) (in Hebrew).

An even older form of cooperation is described in the Bible: A shared well was covered with a very heavy stone. Because one person could not move the stone alone, the cooperation of many was required to open the well. The use of water was thus monitored by the group through this simple method. Genesis 29: 3, 8.

¹¹ For a detailed description of the operation of the system in the village of Battir as late as 1967, see Zvi Ron, Battir—The Village and the System of Irrigated Terraces, 10 Teva Vaaretz 112, 121 (1968) (in Hebrew).

¹² On multidimensional relations as reinforcing cooperation, see Elinor Ostrom, Governing the Commons 207 (1990); Russell Hardin, Collective Action 31–33 (1982).

¹³ Similarly, nonmembers have been excluded from using water by water institutions in the United States. See Barton H. Thompson, Jr., Institutional Perspectives on Water Policy and Markets, 81 Cal. L. Rev. 671, 725–33 (1993).

¹⁴ In contrast, intercommunity strife over surface water in the wadis of Palestine/Eretz Yisrael was not uncommon. Ali Hasan Dawod Anbar, Socio-Economic Aspects of the East Ghor Canal Project 91–93 (1983) (unpublished Ph.D. dissertation, University of Southampton).

¹⁵ All systems determined priorities among water users and uses. On Jewish law of the Talmudic period, see Refael Patai, the Water (1936) (in Hebrew); Mordechai Hacohen, Halachot Vehalichot 106–16 (1975) (in Hebrew). On Moslem law, see Chibli Mallat, Law and the Nile River: Emerging International Rules and the Shari’a, in The Nile: Sharing a Scarce Resource 365, 372–78 (P. P. Howell & J. A. Allen eds., 1994); Chibli Mallat, The Quest for Water Use Principles: Reflections on the Shari’a and Custom in the Middle East, in Water in the Middle East: Legal, Political and Commercial Implications (J. A. Allen & C. Mallat eds., 1995). For Bedouin customs in die Negev and Sinai deserts, see letter by Captain Owen of the British army (July 16, 1906), reprinted in 1 Palestine Boundaries 1833–1947, at 602 (Patricia Toye ed., 1989). See also Dante A. Caponera, Principles of Water Law and Administration (1992).

¹⁶ M. Streck, Kanat, in 4 E. J. Brill’s First Encyclopedia of Islam 1913–1936, at 708 (M. Th. Houstma, A. J. Wensinck, T. M. Arnold, W. Heffening & E. Levi-Provencal eds., 1987); Peter Beaumont, The Qanat: A Means of Water Provision from Groundwater Sources, in Qanat, Kariz and Khattara, supra note 10, at 13, 23.

¹⁷ See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991). See also Robert C. Ellickson, A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry, 5 J. L., Econ. & Org. 83 (1989).

¹⁸ Ellickson, supra note 17, at 177–78. The villagers in biblical Eretz Yisrael/Palestine maintained their close-knit societies by restricting the allocation to owners of lands surrounding the village, typically all belonging to a few local extended families.

¹⁹ For examples of successful collective action leading to optimal utilization of water resources in Spain and the United States, see Arthur Maass & Raymond L. Anderson, … and the Desert Shall Rejoice: Conflict, Growth and Justice in Arid Environments (1978). See also Ostrom, supra note 12, ch. 3.

²⁰ Thompson, supra note 13, especially at 687–93. As Thompson explains:

An institution that brings water into an arid region will typically enjoy considerable monopoly power. Because an alternative aqueduct would be costly, the threat of competition is remote and unlikely to drive water prices down to long-run marginal cost. Because the aqueduct is geographically fixed, however, the institution may often face a limited customer pool; customers may enjoy considerable monopsonistic power, and be able to demand a low price that just covers the supplier’s short-run operating costs of capturing and delivering the water. Separation of water delivery and water use will thus often present both seller and buyer with considerable economic risk as well as constant and expensive conflict.

Id. at 691 (citations omitted).

²¹ See, e.g., Todd Sandler, Collective Action 5–7 (1992); Ostrom, supra note 12, at 30; Michael Taylor, The Possibility of Cooperation 5–6 (1987); Russell Hardin, supra note 12, at 17–19.

²² Ostrom, supra note 12, at 30–33; Russell Hardin, supra note 12, at 19; Taylor, supra note 21, at 3.

²³ Garrett J. Hardin, The Tragedy of the Commons, 162 Science 1243, 1244 (1968).

²⁴ The number of riparians may influence the tendency to cooperate. More riparians make coordination more difficult. The costs of coordinating actors’ activities and monitoring their performance are likely to increase because more formal methods of coordination and monitoring are required. Taylor, supra note 21, at 105; Sandler, supra note 21, at 48; Russell Hardin, supra note 12, at 182–85; Edna Ullmann-Margalit, The Emergence of Norms 47 (1977). Luckily, the international community is still mainly composed of states, and the number of state actors in each basin is relatively small.

²⁵ Taylor, supra note 21, at 19 (“Collective action problems exist where rational individual action can lead to a strictly Pareto-inferior outcome.”). An outcome is Pareto-optimal if no other outcome can make one actor better off without making someone else worse off. Stated differently, a Pareto-optimal outcome occurs when there is no other outcome preferred by one actor that is at least as good for the other actors. Any outcome that is not Pareto-optimal is Pareto-inferior.

²⁶ Mancur Olson, The Logic of Collective Action (1965). See also Sandler, supra note 21, at 8–9.

²⁷ This game derives its name from the plight of two prisoners who are kept in different cells and are interrogated. Each of them is confronted with two courses of action (strategies), which each must take simultaneously or without knowing the other’s choice. They can either “cooperate,” i.e., choose a strategy that will make them both better off, or separately “defect,” choose a strategy that maximizes one’s payoff, notwithstanding the other’s loss. In the classic PD game, the strategies are to cooperate by not confessing to having committed the offense of armed robbery, or to defect by confessing and thus giving testimony against the other player. If they remain silent (cooperate), they will each receive a one-year sentence for the illegal possession of weapons, as the police will have no evidence of the robbery; if one confesses (defects) and the other remains silent (cooperates), the first is pardoned and the latter gets a ten-year sentence; if both confess (defect), they both get a five-year sentence. PD is an example of a situation that drives two rational actors to choose a Pareto-inferior outcome: faced with the two strategies, each player has a dominant strategy–to defect–no matter what strategy the other one chooses. Even if they agree beforehand to cooperate, neither has an incentive to keep the agreement.

²⁸ See Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Ann. Ill, App. 1, Powers and Responsibilities for Civil Affairs, Art. 40 (Water and Sewage), and sched. B. See also note 169 infra. On this issue, see Eyal Benvenisti & Haim Gvirtzman, Harnessing International Law to Determine Israeli-Palestinian Water Rights, 33 Nat. Resources J. 543 (1993); Eyal Benvenisti, The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement, 4 Eur. J. Int’l L. 542, 552–54 (1993).

²⁹ This game derives its name from the notorious game in which two drivers speed at each other from opposite directions. The driver who swerves (cooperates) first is “chicken.” If neither swerves (i.e., if both defect), the outcome is disastrous for both. Mutual defection has the lowest payoff for both. Each driver’s first preference is that the other cooperate, and her second-best preference is that both cooperate. In this case, neither driver has a dominant strategy, and each driver’s choice depends on her assessment of the other’s probable action. Since each prefers to defect if the other cooperates, both are expected to resort to pregame acts that would convey to the other player their determination to defect A Pareto-inferior outcome can result from concurrent irrevocable acts by the two players committing themselves to noncooperation. However, one would expect at least some players (those who are more averse to risk) to cooperate, be the chicken and prevent the worst outcome.

³⁰ A group of hunters attempts to capture a stag. Every hunter must cooperate to capture the stag. All prefer the stag, but if a hare passes by one of the hunters, a hunter may catch and eat it, depriving the others of the opportunity of capturing the stag (but not hares, if they begin chasing them). This situation can take the form of an Assurance game, which is a coordination game. In the game, players do not have dominant strategies. Each player’s strategy depends on the others’: player A will cooperate if all the others cooperate, and will defect if all the others defect. The same story can take the form of a PD game, if we assume that individual hunters would be tempted to defect when a hare passed by them, especially if they anticipated that the other hunters would do the same, and they had no means of monitoring or reprimanding die others. Hunters would tend to defect, especially in the latter situation, and the Pareto-optirrial outcome would not be reached. The hunters might also be deterred by the unknown outcomes of cooperation: how would the benefits of the captured stag be distributed?

⁹¹ This loss also increases the salinity of the water downstream. Fred Pearce, The Dammed 116 (1992). For potential “stags” in the Nile, see Dale Whittington & Elizabeth McClelland, Opportunities for Regional and International Cooperation in the Nile Basin, 17 Water Intx 144 (1992).

³² Taylor, supra note 21, at 39–40.

³³ See Sandler, supra note 21, at 122–23.

³⁴ On the Assurance game, see supra note 30.

³⁵ If both players know beforehand the number of games to be played, the dilemma remains because it will exist in the final round, and there both will defect. Once the outcome of that game is known, the next-to-last game effectively becomes the final game, and the same argument applies to it, and so on, back to the first game. David M. Kreps et al., Rational Cooperation in the Finitely Repeated Prisoners’ Dilemma, 27 J. Econ. Theory 245 (1982).

³⁶ The analytical proof of this outcome, provided in Michael Taylor, Anarchy and Cooperation (1976), was tested in Robert Axelrod, The Evolution Of Cooperation, especially at 126–32 (1984). See also Russell Hardin, supra note 12, chs. 9–14.

³⁷ Taylor, supra note 21, ch. 4. In the latter example, the strategy of the cooperating players will be to cooperate if enough of the others cooperate.

³⁸ The deterrence theory in international relations suggests, for example, that the more the Chicken game is expected to recur, the more each player will invest in establishing a reputation for defection. See, e.g., Thomas C. Schelling, Arms and Influence 55 (1966) (“The main reason we [Americans] are committed in many places is that our threats are interdependent. Essentially we tell the Soviets that we have to react here because, if we did not, they would not believe us when we say we will react there.”).

³⁹ This is especially the case in N-person iterated Chicken games. In N-person Chicken settings, some of the actors can provide the collective good by cooperating. Two of three riparians, for example, can curb their withdrawals from a shared resource and prevent its ruination, while the third actor rides freely on their act. When it is necessary for at least some (S) of the N group of actors to cooperate, each actor must choose whether to join the cooperating group or to defect and enjoy the free ride. If the actor assumes that the cooperating group will be smaller than S - 1, she will tend to defect, since she will assume that despite her cooperation the collective good will not be provided. By establishing a reputation for defection, actors reduce the probability that the others will cooperate, and ultimately the collective good will not be provided. See Hugh Ward, The Risks of a Reputation for Toughness: Strategy in Public Goods Provision Problems Modelled by Chicken Supergames, 17 Brit. J. Pol. Sci. 23 (1987).

⁴⁰ Id. at 31. An actual case in point is the U.S. reaction to Mexico’s continuing pollution of the Rio Grande with untreated sewage and industrial wastes. Instead of invoking international law against Mexico’s violations of its international commitments, the United States plans, funds and helps construct wastewater collection and treatment projects on the Mexican bank. David J. Eaton & David Hurlbut, Challenges in the Binational Management of Water Resources in the Rio Grande/Rio Bravo 55–77 (1992).

⁴¹ See Kurt T. Gaubatz, Democratic States and Commitment in International Relations, 50 Intl Org. 108 (1996); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988). On possible sources of internal political influence on democratic states’ attitude toward cooperation regarding water-related issues, see David G. LeMarquand, International Rivers: The Politics of Cooperation 15–19 (1977). He identifies three sources: national bureaucracy, political leadership and private interest groups. The third source has been cited as having been responsible for collective-action failures regarding common fisheries. M.J. Peterson, International Fisheries Management, in Institutions for the Earth 249, 258 (Peter M. Haas, Robert O. Keohane & Marc A. Levy eds., 1993) [hereinafter Institutions].

⁴² For analysis, see Putnam, supra note 41. Domestic pressures do not necessarily weaken the state in the international-level game. On the contrary: governments can exploit strong internal opposition to get better international deals palatable to the opposition. Id. at 440.

⁴³ Id. at 452–53. Some have suggested that there is less uncertainty in negotiations with democratic states, whose domestic politics are more transparent. Gaubatz, supra note 41, at 122–23.

⁴⁴ See Thomas Hobbes, Leviathan (W. G. Pogson Smith ed., 1909) (1651). “Vertue generally, in all sorts of subjects, is something that is valued for eminence; and consisteth in comparison. For if all things were equally in all men, nothing would be prized.” Id. at 52. “[M]an, whose Joy consisteth in comparing himself with other men, can relish nothing but what is eminent.” Id. at 130.

⁴⁵ Several experiments with PD situations have shown that players defect and incur losses, if only to prevent their competitors from improving their lot. Morton D. Davis, Game Theory 129–30 (rev. ed. 1983). Similar policies were discerned in other games, id. at 130–33, 151–53. Psychologists have shown that both individuals and communities tend to adopt policies that increase the gap between themselves and the “others,” rather than policies that promote absolute gains. See Henry Tajfel, Experiments in Intergroup Discrimination, 223 Sci. Am. 96 (1970).

⁴⁶ Donald Horowitz, Ethnic Groups in Conflict 143–47 (1985).

⁴⁷ Kenneth Waltz, Man, the State and War 198 (1959) (in the anarchic system of international politics, “relative gain is more important than absolute gain”); Joseph M. Grieco, Cooperation Among Nations 39 (1990) (“Driven by an interest in survival and independence, states are acutely sensitive to any erosion of their relative capabilities. … Capabilities–and especially their amount and quality compared to others–are the ultimate basis for state security and independence in the self-help context of international anarchy.”).

⁴⁸ This point is implied by Stephen D. Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43 World Pol. 336 (1991).

⁴⁹ For examples of such arrangements, see Grieco, supra note 47, at 233.

⁵⁰ Taylor, supra note 21, at 117. For example, if actors value relative gains more than absolute gains, the Chicken game is transformed into a PD game. Each actor would prefer mutual defection (which leaves the two actors with similar losses) to unilateral cooperation (through which the defector, who would enjoy a free ride on the other actor’s investment, would be better off than the one who invested in cooperating).

⁵¹ On the interrelationships among liberal states, see Anne-Marie Slaughter Burley, Toward an Age of Liberal Nations, 33 Harv. Int’l L.J. 393 (1992); Anne-Marie Slaughter Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Colum. L. Rev. 1907, 1914–28 (1992).

⁵² The ECE has coordinated activities throughout Europe concerning water and the environment. Under its auspices several important instruments have been promulgated. See Economic Commission for Europe, Two Decades of Co-operation on Water (1988) [hereinafter Two Decades].

⁵³ See Robert Powell, Absolute and Relative Gains in International Relations Theory, 85 Am. Pol. Sci. Rev. 1303 (1991) (arguing that the assumptions of Realists and Neo-Liberal Institutionalists are not incompatible but may be reconciled). See also Robert O. Keohane & Lisa L. Martin, The Promise of Institutionalist Theory, 20 Intl Security 39, 44–46 (1995).

⁵⁴ Gary D. Libecap, Contracting for Property Rights 12–14 (1989). According to Libecap, the incentive of parties to agree upon the definition and allocation of property rights in a shared asset is shaped not only by the magnitude of the common-pool losses, but also by the nature and costs of defining diem and the costs of enforcing die defined rights.

⁵⁵ From the economic point of view, the value of characterizing goods as individually owned or held in common depends upon the costs involved in defining and trading in them. The higher the transaction costs involved in die protection and transfer of the goods, the lower the likelihood of optimal use of the property if it is considered to be individually owned, and hence the higher die value of characterizing the property as common property. See Yoram Barzel, Economic Analysis of Property Rights 2 (1989).

⁵⁶ Ronald H. Coase, The Problem of Social Cost, 3 J. L. & Econ. 1 (1960). On the Coase Theorem and international settings, see John A. C. Conybeare, International Organization and the Theory of Property Rights, 34 Int‘l Org. 307 (1980). For a proposal to trade in water rights in the Israeli-Palestinian context, see Hisham Zarour & Jad Isaac, A Novel Approach to the Allocation of International Water Resources, in Water and Peace in the Middle East 389 (Jad Isaac & Hillel Shuval eds., 1994).

⁵⁷ SeeH. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. Pol. Econ. 124 (1954); Colin W. Clark, Restricted Access to Common-Property Fishery Resources: A Game-Theoretic Analysis, in Dynamic Optimization and Mathematical Economics 117 (Pan-Tai Liu ed., 1980). See also Barzel, supra note 55, at 72–73 (on the conversion of the North Sea into privately owned property).

⁵⁸ On the delimitation processes involved, see Malcolm D. Evans, Relevant Circumstances and Maritime Delimitation (1989); Faraj A. Ahnish, The International Law of Marine Boundaries and the Practice of States in the Mediterranean Sea (1993).

⁵⁹ See BARZEL, supra note 55, at 5: “The rights to receive the income flow generated by an asset are a part of the property rights over that asset. The greater is others’ inclination to affect the income flow of someone’s asset without bearing the full costs of their actions, the lower is the value of the asset.”

⁶⁰ As a result, Pakistan had to construct new irrigation canals for areas previously fed by the eastern tributaries. See Indus Waters Treaty, Sept. 19, 1960, reprinted in 1 Indian J. Int’l L. 341 (1960–61); Richard R. Baxter, The Indus Basin, in The Law of International Drainage Basins 443, 460–61 (Albert H. Garretson, Robert D. Hayton & Cecil J. Olmstead eds., 1967); Aloys A. Michel, The Indus Rivers 254–65 (1967); Marc Wolfrom, L’Utilisation à des fines autres que la navigation des eaux des fleuves, lacs et canaux internationaux 106–18 (1964).

⁶¹ This arrangement dates back to the proposals included in the Johnston Plan, which were never officially accepted by the riparians. See, e.g., Kathryn B. Doherty, Jordan Waters Conflict, Int’l Conciliation, No. 553, May 1965, at 25–28; Georgina G. Stevens, Jordan River Partition (1965). The solution finally adopted in the Israel-Jordan Treaty of Peace, Oct. 26, 1994, Ann. II, 34 ILM 46, 58 (1995), basically follows that plan. The Treaty adds to that plan a Joint Water Committee and envisions joint projects on the Yarmouk and the lower Jordan.

⁶² On the 1906 delimitation of the Egypt/Palestine border and the strategic importance of springs there, see the documents in 1 Palestine Boundaries, supra note 15. On the (partially successful) British efforts in 1918–1923 to include the headwaters of the Jordan River within Palestine, see 2 and 3 id.; H. F. Frischwasserra’anan, The Frontiers of a Nation 97–141 (1955); Adam Garfinkle, War, Water, and Negotiation in the Middle East: The Case of the Palestine-Syria Border, 1918–1923 (1994).

⁶³ In 1895, when Mexico alleged that the United States had interfered with the flow of the Rio Grande, U.S. Attorney-General Harmon expressed the opinion that international law does not constrain the upper riparian in its use of the river. See Jerome Lipper, Equitable Utilization, in The Law of International Drainage Basins, supra note 60, at 15, 20–23; Stephen C. McCaffrey, Second Report on the Law of the Non-Navigational Uses of International Watercourses, [1986] 2 Y.B. Int’l L. Comm’n, pt. 1, at 87, 105–10, UN Doc. A/CN.4/SER.A/1986/Add.1.

⁶⁴ This is the so-called territorial integrity theory. See Lipper, supra note 63, at 18–20.

⁶⁵ See generally Maass & Anderson, supra note 19.

⁶⁶ See Zarour & Isaac, supra note 56, at 393–95.

⁶⁷ As suggested by Julio A. Barberis, The Development of International Law of Transboundary Groundwater, 31 Nat. Resources J. 167, 177–78 (1991).

⁶⁸ Lower riparians may retaliate against an uncooperative attitude by the upper riparian, by using other resources such as denying a landlocked upper riparian access to seaports as in the case of India and Nepal in the 1980s, David J. Eaton & Mahesh C. Chaturvedi, Water Resource Challenges in the Ganges-Brahmputra River Basin 39–41 (1993), or simply by invoking superior military power, an implicit threat to respond with force if the water flow or its quality deteriorates. Egyptian officials have referred to water projects contemplated by Ethiopia in the upper Nile as potentially inflammatory. See Raj Krishna, The Legal Regime of the Nile River Basin, in The Politics of Scarcity 23, 33–34 (Joyce R. Starr & Daniel C. Stoll eds., 1988); Imeru Tamrat, Constraints and Opportunities for Basin-wide Cooperation in the Nile–A Legal Perspective, in Water in the Middle East, supra note 15, at 177. Syria reportedly supported anti-Turkish groups to ensure the supply of water from the Euphrates. See David Kushner, Conflict and Accommodation in Turkish-Syrian Relations, in Syria Under Assad 85, 95–97 (Moshe Ma’oz & Avner Yaniv eds., 1986); H.J. Skutel, Turkey’s Kurdish Problem, Int’l Perspectives, Feb. 1988, at 22, 24. See also John Bulloch & Adel Darwish, Water Wars: Coming Conflicts in the Middle East, chs. 3, 5 (1993).

⁶⁹ For the effects of return water flows on trade in water rights, see H. Stuart Burness & James P. Quirk, Water Law, Water Transfers, and Economic Efficiency: The Colorado River, 23 J. L. & Econ. 111 (1980); Ronald N. Johnson, Micha Gisser & Michael Werner, The Definition of a Surface Water Right and Transferability, 24 J. L. & Econ. 273 (1981) (suggesting that water rights will be defined by the consumptive use of each riparian, i.e., its use minus the return flow); Charles J. Meyers & Richard A. Posner, Market Transfer of Water Rights: Towards an Improved Market in Water Resources 290 (National Water Commission Legal Study No. 4, 1971), cited in id. at 273 (calling for assigning property rights in the return flow as well).

⁷⁰ For the burgeoning literature on water markets since the 1980s, see Norman J. Dudley, Water Allocation by Markets, Common Property and Capacity Sharing: Companions or Competitors?, 32 Nat. Resources J. 757, 758–63 (1992).

⁷¹ Water markets are highly regulated. See, e.g., Johnson, Gisser & Werner, supra note 69 (New Mexico); Morris Israel & Jay R. Lund, Recent California Water Transfers: Implications for Water Management, 35 Nat. Resources J. 1 (1995); Ronald C. Griffin & Fred O. Boadu, Water Marketing in Texas: Opportunities for Reform, 32 Nat. Resources J. 265 (1992); Maass & Anderson, supra note 19 (Spain and the United States). See also text at notes 13–15 supra.

⁷² See Gerhard Hafner, The Optimum Utilization Principle and the Non-Navigational Uses of Drainage Basins, 45 Aus. J. Pub. Intl L. 113, 134–36 (1993).

⁷³ See Robert Rosenstock, Second Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/462, Annex, at 22–35 (1994) (describing such aquifers and noting the need to regulate their use). These aquifers raise the same collective-action problems as surface water, and therefore merit, and have often received, the same treatment. See ILA, Seoul Rules, Art. 1 and comment, 62 Conference Report, supra note 4, at 251–58; ECE, Charter on Ground-water Management, 1989 Annual Report, Supp. No. 15, Doc. E/ECE/1197; Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Mar. 17, 1992, Art. 1(1), 31 ILM 1312, 1314 (1992) [hereinafter Helsinki Convention]; Robert D. Hayton & Albert E. Utton, Transboundary Groundwater: The Bellagio Draft Treaty, 29 Nat. Resources J. 663 (1989). The ILC, however, chose not to include such aquifers in its definition of shared water resources (“watercourse system”) since many members believed they must be studied further before addressing their use. Instead, the ILC adopted a resolution recommending that states regulating transboundary ground water be guided by the draft articles, where appropriate. 1994 ILC Report, supra note 5, at 326.

⁷ See Stephen C. McCaffrey, Seventh Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/436 (1991) (his final report, devoted entirely to the issue of definition); and Rosenstock, supra note 73. For a critical analysis, see Robert D. Hayton, Observations on the ILC’s Draft Rules: Articles 1–4, 3 Colo. J. Int’l Envtl. L. & Pol’y31, 34–40 (1992).

⁷⁵ The final version of draft Article 2 defines “international watercourse” as “a watercourse, parts of which are situated in different States.” “Watercourse” is defined as “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.” 1994 ILC Report, supra note 5, at 199.

⁷⁶ “Unrelated confined groundwaters” are excluded by this definition, see supra note 73, and the issues of “normally flowing” and “common terminus” leave unnecessary doubt. For the ILC’s commentary on this definition, see 1994 ILC Report, supra note 5, at 200–06. For criticism, see Hayton, supra note 74, at 37–40.

⁷⁷ See Stephen M. Schwebel, Second Report on the Law of Non-Navigational Uses of International Watercourses, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2, at 132–36, UN Doc. A/CN.4/1980/Add.1 (pt. 2); McCaffrey, supra note 63, at 101–02. See also Patricia Buirette, Genèse d’un droit fluvial international general, 95 Revue Générale de Droit International Public 5, 29–34 (1991).

⁷⁸ Scholars have also hesitated to recognize the existence of a positive principle in international law to that effect. See Max Huber, Ein Beitrag zur Lehre von der Gebietshoheit an Grenzflussen, 1 Zeitschrift Für Völkerrecht und Bundestaatsrecht 159, 163 (1907) (joint ownership involves a restriction on the independence of states, and such a restriction may never be presumed, either in regard to state territory itself or with regard to the exercise of territorial sovereignty).

⁷⁹ This is the so<alled community-in-waters approach. Lipper, supra note 63, at 38–40; Friedrich J. Berber, Rivers in International Law 22–25 (1959); Buirette, supra note 77, at 34.

⁸⁰ This is the so-called limited territorial sovereignty approach. See, e.g., Lipper, supra note 63, at 23–38; Berber, supra note 79, at 22–41; Wolfrom, supra note 60, at 63–67. This approach is also taken by the ILC. McCaffrey, supra note 63, at 130–31, refers to this doctrine as “[t]he bedrock upon which the doctrine of equitable utilization is founded.”

⁸¹ On the previous preference of the ILC for a clear rule, see text at and note 106 infra; for its position on cooperation, see text at and notes 170–76 infra.

⁸² See, e.g., Charles B. Bourne, Mediation, Conciliation and Adjudication in the Settlement of International Drainage Basin Disputes, 9 Can. Y.B. Intl L. 114 (1971).

⁸³ See Stephen C. McCaffrey, Sixth Report on the Law of the Non-Navigational Uses of International Watercourses, Addendum, UN Doc. A/CN.4/427/Add.1, at 11–12 (1990) [hereinafter Sixth Report]; McCaffrey, supra note 63, at 113–22; Legal Problems Relating to the Utilization and Use of International Rivers, [1974] 2 Y.B. Int’l L. Comm’n, pt. 2, at 33, 187–99, UN Doc. A/CN.4/SER.A/1974/Add.1 (pt. 2).

⁸⁴ Berber, supra note 79, at 263: “[W]ater disputes are generally agreed to constitute a classical example of disputes which cannot be satisfactorily solved by judicial decision.” See also Lipper, supra note 63, at 59–60.

⁸⁵ In domestic legal systems, external intervention by courts or administrators can be effective and efficient. Courts in federal states have at times allocated water shares to states. See, e.g., Arizona v. California, 373 U.S. 546 (1963); Colorado v. New Mexico, 459 U.S. 176 (1982); Provincia de la Pampa v. Provincia de Mendoza, 310(3) Fallos 2478 (1987) (Arg.), reported in International Rivers and Lakes, May 1988, at 2 (allocating waters of interstate Atuel River according to the standard of equitable utilization and granting priority to existing beneficial uses); Wiirttemberg and Prussia v. Baden (Donauversinkung case), 4 Ann. Dig. 128 (Staatsgerichtshof 1927) (Ger.); Aargau v. Zurich, Switz. Bundesgericht, 1878, cited in William L. Griffin, The Use of Waters of International Drainage Basins under Customary International Law, 53 AJIL 50, 66 (1959). In India, similar interstate water disputes were settled with the aid of the central administration. S. N. Jain, Alice Jacob & Subhash C. Jain, Interstate Water Disputes in India, especially ch. 2 (1971); N. D. Gulhati, Development of Interstate Rivers: Law and Practice of India 53–56 (1972).

⁸⁶ Among the leading treatises of the extensive literature are Roger Fisher & William Ury, Getting to Yes (1981); Oran R. Young, Bargaining: Formal Theories of Negotiation (1975); Howard Raiffa, The Árt and Science of Negotiation (1982); David A. Lax & James K Sebenius, The Manager as Negotiator (1986). On international negotiations, see Raiffa, supra; James K. Sebenius, Negotiating the Law of the Sea (1981); International Negotiation (Victor A. Kremenyuk ed., 1991).

⁸⁷ See Sebenius, supra note 86, at 114. On means for exploring differences, see id. at 117–44.

⁸⁸ See Lax & Sebenius, supra note 86, ch. 5; Arild Underdal, The Outcomes of Negotiation, in International Negotiation, supra note 86, at 100; James K. Sebenius, Negotiation Analysis, in id. at 203, 210. International negotiations are not free from obstacles, such as cultural differences. These can be overcome with the aid of mediators. See, in the context of water disputes, Culture and Negotiation: The Resolution of Water Disputes (Guy Olivier Faure & Jeffrey Z. Rubin eds., 1993).

⁸⁹ See supra note 12.

⁹⁰ Sebenius, supra note 86, at 198. This is true unless the other contentious issues are more difficult politically, id. at 200.

⁹¹ See Israel-PLO Declaration of Principles on Interim Self-Govemment Arrangements, Sept. 13, 1993, Ann. III, 32 ILM 1525, 1537 (1993); Israeli-Palestinian Interim Agreement, supra note 28; Israel-Jordan Peace Agreement, supra note 61, Ann. II.

⁹² See Resolution on the Utilization of Non-Maritime International Waters (Except for Navigation), Arts. 3, 6, [1961] 2 Annuaire de l’Institut de Droit International 370, translated in 56 AJIL 737 (1962); Helsinki Rules, 52 Conference Report, supra note 4, ch. 6 (in particular Art. 27); ILC draft articles, Art. 3(3), 1994 ILC Report, supra note 5, at 206. On the duty to negotiate in good faith, see, e.g., Julio A. Barberis, Bilan de recherches de la section de langue française du Centre d’étude et de recherche de l’Académie, in Hague Academy Centre for Studies and Research, Rights and Duties of Riparian States of International Rivers 15, 54–55 (1990); Janos Bruhacs, The Law of Non-Navigational Uses of International Watercourses 176–78 (1993); Charles B. Bourne, Procedure in the Development of International Drainage Basins: The Duly to Consult and to Negotiate, 10 Can. Y.B. Int’l L. 212, 224–33 (1972); Dominique Alhertiere, Settlement of Public International Disputes on Shared Resources: Elements of a Comparative Study of International Instruments, 25 Nat. Resources J. 701 (1985).

⁹³ Buttressing this requirement with nonobligatory mechanisms for settlement of disputes is not fruitful either. But see the ILC’s draft Article 33, “Settlement of Disputes,” 1994 ILC Report, supra note 5, at 322, and text at note 168 infra.

⁹⁴ The literature on rules versus standards points to several considerations in choosing between the two. This literature relates to national law and therefore assumes the existence of adjudicators and enforcement mechanisms. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992).

⁹⁵ David D. Caron, The Frog that Wouldn’t Leap: The International Law Commission and Its Work on International Watercourses, 3 Colo. J. Int’l Envtl. L. & Pol’y 269, 273 (1992).

⁹⁶ Early reference to experts is recommended in the Bellagio draft treaty, a suggested blueprint for the joint management of aquifers. See Hayton & Utton, supra note 73, at 714–16.

⁹⁷ An example is the Namibia–South Africa Agreement on the Establishment of a Permanent Water Commission, Sept. 14, 1992, 32 ILM 1147, 1150 (1993) [hereinafter S. Africa-Namibia Agreement], which establishes a joint commission to serve as a technical adviser to the state parties by, inter alia, gathering data and recommending “the criteria to be adopted in the allocation and utilisation of common water resources.”

⁹⁸ Sebenius, supra note 86, at 125.

⁹⁹ See text at notes 154–65 infra.

¹⁰⁰ Declaration of Principles, supra note 91, 32 ILM at 1538.

¹⁰¹ See Common Agenda for the Peace Negotiations, Sept. 14, 1993, sec. B(3) (a), 32 ILM 1522, 1523 (1993) (“securing the rightful water shares of the two sides”).

¹⁰² Israel-Jordan Treaty of Peace, supra note 61, Art. 6 and Ann. II, 34 ILM at 48–49, 58.

¹⁰³ On water agreements as relational contracts and the need for flexible standards to describe the parties’ obligations, see text at notes 145–53 infra.

¹⁰⁴ On the changes in the ILC position over the years, see the following articles by Stephen C. McCaffrey: The International Law Commission Adopts Draft Articles on International Watercourses, 89 AJIL 395, 399–401 (1995); The Evolution of the Law of International Watercourses, 45 Aus. J. Pub. Int’l L. 87, 106–10 (1993); The International Law Commission and Its Efforts to Codify the International Law of Waterways, 47 Schweizerisches Jahrbuch Für Internationales Recht 32, 48–52 (1990); The Law of International Watercourses: Some Recent Developments and Unanswered Questions, 17 Denv. J. Int’l L. & Pol’y 505, 508–10 (1989).

¹⁰⁵ The ILC’s draft Article 5(1) provides, in part: “Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner.” 1994 ILC Report, supra note 5, at 218.

¹⁰⁶ Former draft Article 7 stated clearly: “Watercourse States shall utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse States.” Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 67, UN Doc. A/46/10 (1991). “Appreciable” (or “significant,” which was later preferred by the ILC) means that minor injuries and inconveniences are to be ignored. Charles B. Bourne, The Right to Utilize the Waters of International Rivers, 3 Can. Y.B. Int’l L. 187, 209–10 (1965) [hereinafter Right to Utilize]. For criticism of the supremacy of this rule in the 1991 draft articles, see, e.g., Charles B. Bourne, The International Law Commission’s Draft Articles on the Law of International Watercourses: Principles and Planned Measures, 3 Colo. J. Intl Envtl. L. & Pol’y 65, 80–85 (1992); Lucius Caflisch, Sic utere tuo ut alienum non laedas: Règie prioritaire ou élément servant à mesurer le droit de participation équitable et raisonnable à l’utilisation d’un cours d’eau international, in Internationales Recht auf See und Binnengewassern 27, 41–47 (Alexander von Ziegler & Thomas Burckhardt eds., 1993); Patricia K. Wouters, Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States, 30 Can. Y.B. Int’l L. 43, 80–86 (1992).

¹⁰⁷ On “property rule” and other rules that protect entitlements, see Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1092 (1972) (“An entitlement is protected by a property rule to the extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the value of the entitlement is agreed upon by the seller.”).

¹⁰⁸ Exit options are the legal rights available to actors when no consensual bargain is reached. See Douglas G. Baird, Robert H. Gertner & Randal C. Picker, Game Theory and the Law 224–32 (1994).

¹⁰⁹ See text at notes 63–72 supra.

¹¹⁰ See, e.g., Agreement on Great Lakes Water Quality, Nov. 22, 1978, Can.-U.S., 30 UST 1383; Convention on the Protection of the Rhine against Chemical Pollution, Dec. 3, 1976, 1124 UNTS 375, 16 ILM 242 (1977); Convention on the Protection of the Rhine against Pollution by Chlorides, Dec. 3, 1976, 16 ILM at 265; Rio Declaration on Environment and Development, June 14, 1992, Principles 7, 8, 31 ILM 874, 877 (1992); Montreal Draft Rules on Water Pollution in an International Drainage Basin, Art. 1(c), 60 ILA, Conference Report 535 (1982) (states shall attempt to reduce water pollution to the lowest “practicable and reasonable” level); Athens Resolution on the Pollution of Rivers and Lakes and International Law, Art. III(1) (b), [1979] 2 Annuaire de l’Institut de Droit International 196, 199 (states shall abate existing pollution “within the best possible time limits”); ECE Declaration of Policy on Prevention and Control of Water Pollution, including Transboundary Pollution, Principle 4, Decision B(XXXV) 1980, reprinted in Two Decades, supra note 52, at 1 (governments should adopt measures reducing existing water pollution). Compare the older Helsinki Rules, Art. X(1)(b), 52 Conference Report, supra note 4, at 497 (States “should take all reasonable measures to abate existing water pollution in an international drainage basin to such an extent that no substantial damage is caused in the territory of a co-basin State.”). See also Bruhacs, supra note 92, at 196–97.

¹¹¹ See, e.g., Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (1989); Agora: What Obligations Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility, 84 AJIL 190 (1990); Patricia W. Birnie & Alan E. Boyle, International Law and the Environment 211–12 (1992).

¹¹² The new draft Article 7, Obligation not to cause significant harm, reads:

1. Watercourse States shall exercise due diligence to utilize an international watercourse in such a way as not to cause significant harm to other watercourse States.

2. Where, despite the exercise of due diligence, significant harm is caused to another watercourse State, the State whose use causes the harm shall, in the absence of agreement to such use, consult with the State suffering such harm over:

(a) the extent to which such use has proved equitable and reasonable taking into account the factors listed in article 6;

(b) the question of ad hoc adjustments to its utilization, designed to eliminate or mitigate any such harm caused and, where appropriate, the question of compensation.

1994 ILC Report, supra note 5, at 236. For commentary, see id. at 236–44.

¹¹³ See supra text at notes 41–43.

¹¹⁴ See LeMarquand, supra note 41; Peterson, supra note 41.

¹¹⁵ See generally William M. Adams, Wasting the Rain (1992); and Pearce, supra note 31.

¹¹⁶ Environmental Problems in Eastern Europe (Francis W. Carter & David Turnock eds., 1993).

¹¹⁷ There seems, however, to be a distinction in this respect between developing and developed states. While developed countries can afford to pay more serious regard to sustainable use, governments of developing countries facing short-term challenges may underestimate the needs of future generations in basinwide cooperation. A case in point is the “mining” of aquifers, the withdrawal of water beyond the replenishment rate. On the different attitudes toward present and future needs, see John Kolars, The Course of Water in the Arab Middle East, 33 Am. Arab Aff. 57, 63 (1990) (Libya and Saudi Arabia); Edgar S. Bagley, Water Rights Law and Public Policies Relating to Ground Water “Mining” in the Southwestern States, 4 J. L. & Econ. 144 (1961) (United States).

¹¹⁸ See M. Kassas, Environmental Aspects of Water Resources Development, in Water Management for Arid Lands in Developing Countries 67 (Asit K. Biswas et al. eds., 1980); Edward Goldsmith & Nicholas Hildyard, The Social and Environmental Effects of Large Dams 17 (1984); Adams, supra note 115, at 132.

¹¹⁹ Pearce, supra note 31, at 154–55.

¹²⁰ In Brazil, hydroelectric projects flooded the lands of 34 Indian tribes. In 1963 the Pakistani Government forced about 100,000 Chakma from their homes in the Chittagong Hill Tracts (in what is today Bangladesh) to clear the way for the Kaptai Dam and the settlement of 400,000 Bengali farmers. The Quebec government resettled Cree Indians to clear 11,000 square miles of their lands for the erection of a dam. On these and other affected communities, see Goldsmith & Hildyard, supra note 118, at 19–50; Pearce, supra note 31, at 155–56, 218–24; Philip Hurst, Rainforest Politics 197 (1990).

¹²¹ For these and other devastating effects, see Adams, supra note 115, at 68–99, 128–54; Petts, supra note 1, at 11–12.

¹²² On the Turkish plans, see Kushner, note 68 supra, at 95–97; Skutel, note 68 supra, at 24.

¹²³ The civil war between the Christian South and the Muslim North has stopped all work on the canal for the time being. On this project, see Robert O. Collins, The Waters of the Nile 311–405 (1990); John Waterbury, The Hydropolitics of the Nile Valley 77 (1979); The Jonglei Canal, especially pt. II (Paul Howell, Michael Lock & Stephen Cobb eds., 1988). For similar plans by the Iraqi Government concerning the dissident Shia minority in the south, see Bulloch & Darwish, supra note 68, at 137–38.

¹²⁴ See further text at note 164 infra.

¹²⁵ U.S. federal courts have dismissed suits of Indian tribes regarding water projects that inundated sacred sites and cemeteries. Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir. 1980); Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980). The recent draft Declaration on the Rights of Indigenous Peoples, adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, on August 26, 1994, UN Doc. E/CN.4/1995/2–E/CN.4/Sub.2/1994/56, 34 ILM 541 (1995), recognizes the value of water resources to indigenous peoples’ social structure, culture and tradition (preamble). The draft declaration sets out to ensure, inter alia, the indigenous peoples’ right to maintain and strengthen their relationship with their land, territories, waters and other resources (Art. 25), to own and manage these resources (Art. 26), and to participate in decisions affecting these resources.

¹²⁶ In particular, this consideration applies to fresh produce and milk, which may not be easily obtained through international trade. On the supremacy of domestic needs, see the commentary to Article 6 of the Helsinki Rules, 52 Conference Report, supra note 4, at 491–92 (“if a domestic use is indispensable–since it is in fact the basis of life–it would not have difficulty in prevailing on the merits against other uses”). See also Günther Handl, The Principle of ‘Equitable Use’ as Applied to Internationally Shared Natural Resources: Its Role in Resolving Potential International Disputes over Transfrontier Pollution, 14 Revue Belge de Droit International 40, 51–52 (1978); Connecticut v. Massachusetts, 282 U.S. 660, 673 (1931) (“Drinking and other domestic purposes are the highest uses of water.”).

¹²⁷ See supra note 111.

¹²⁸ Following the equivocal language of Article 2 of the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR].

¹²⁹ On sharing water for domestic uses in the Israeli-Palestinian context, see Benvenisti & Gvirtzman, supra note 28, at 561; Sharif S. Elmusa, Dividing the Common Palestinian-Israeli Waters: An International Water Law Approach, J. Palestine Stud., Spring 1993, at 57, 68–69.

¹³⁰ Stephen C. McCaffrey, A Human Right to Water: Domestic and International Implications, 5 Geo. Int’l Envtl. L. Rev. 1, 12 (1992).

¹³¹ As recognized, e.g., by Articles 6 and 7 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR]. On a similar inference with respect to the right to food, see Philip Alston, International Law and the Human Right to Food, in The Right to Food 9, 24–25 (Philip Alston & Katarina Tomasevski eds., 1984) (referring to the Human Rights Committee’s comments on Article 6, urging states to take positive measures to protect the right, UN Doc. A/37/40, Ann. V, para. 5 (1982)).

¹³² ICESCR, supra note 128, Art. 11; UN Charter Arts. 55, 56; Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71, Art. 25(1) (1948). For a thorough legal analysis, see Alston, supra note 131, at 29–49. Recently, the right to “clean drinking-water” was expressly included among the rights of the child, Convention on the Rights of the Child, Nov. 20, 1989, Art. 24(2) (c), 28 ILM 1448, 1466 (1989). The right to food may also impose positive duties, including the duty to improve current conditions, and provide—whenever possible—an adequate supply of good freshwater and food. On the difference between “negative” human rights and “positive” rights (which obligate state parties to provide, inter alia, food), see, e.g., G.J. F. van Hoof, The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views, in The Right to Food, supra note 131, at 97.

¹³³ ICCPR, supra note 131, Art. 27. On minorities’ dependence on water resources, see text at and notes 118–23 supra.

¹³⁴ For draft Article 10(2) and commentary, see 1994 ILC Report, supra note 5, at 256–59. On the draft Article 6 formula, see text at note 144 infra.

¹³⁵ 1994 ILC Report, supra note 5, at 258.

¹³⁶ Sandra Postel, Water and Agriculture, in Water in Crisis, supra note 1, at 56, 56–57.

¹³⁷ Awn Khassawneh, The International Law Commission and Middle East Waters, in Water in the Middle East, supra note 15, at 21, 26.

¹³⁸ Both the Helsinki Rules, Art. V, 52 Conference Report, supra note 4, at 488, and the ILC draft, Art. 6, 1994 ILC Report, supra note 5, at 231, give long and nonexhaustive lists of relevant factors.

¹³⁹ McCaffrey, supra note 63, at 132 (“In the most basic terms, the task of arriving at an equitable allocation involves striking a balance between the needs of the States concerned in such a way as to maximize the benefit, and minimize the detriment, to each.”).

¹⁴⁰ See, e.g., Lucius Caflisch, Règles générates du droit des corns d’eau internationaux, 219 Recueil des Cours 9, 158–60 (1989 VII); Handl, supra note 126, at 49–51; Lipper, supra note 63, at 49–58 (“an existing use which is beneficial and not wasteful will ordinarily prevail over a contemplated use. But a contemplated use will nevertheless prevail over an existing use if the former offers benefits of such magnitude as is sufficient to outweigh the injury to the existing use.” Id. at 58). On the meaning of “beneficial” uses, see Bourne, Right to Utilize, supra note 106, at 218–20.

¹⁴¹ Helsinki Rules, Art. VIII(1), 52 Conference Report, supra note 4, at 493. In the same vein, see the Resolution on the Utilization of Non-Maritime International Waters, supra note 92, Arts. 3, 4.

¹⁴² The commentary on the Helsinki Rules, 52 Conference Report, supra note 4, at 493, explains: “A State is unlikely to invest large sums of money in the construction of a dam if it has no assurances of being afforded some legal protection for the use over an extended period of time.”

¹⁴³ For example, the optimal management of oil fields is through field unitization. However, in the United States unitization was not accomplished owing to the various operators’ conflicting claims over the redistribution of shares. Libecap, supra note 54, at 95–96. See also Howard R. Williams, Conservation of Oil and Gas, 65 Harv. L. Rev. 1115, 1173–74 (1952). Compare this failure to the success of the early California Gold Rush miners in defining their mining rights. Libecap, supra, at 29–50, explains their success by their lack of prior knowledge of the actual value of the allocated rights.

¹⁴⁴ 1994 ILC Report, supra note 5, at 233.

¹⁴⁵ See Ian R. Macneil, The New Social Contract (1980) [hereinafter Social Contract]; Ian R. Macneil, The Many Futures of Contract, 47 S. Cal. L. Rev. 691 (1974); Ian R. Macneil, Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a “Rich Classificatory Apparatus,” 75 Nw. U. L. Rev. 1018 (1981); Charles J. Goetz & Robert E. Scott, Principles of Relational Contracts, 67 Va. L. Rev. 1089 (1981); Alan Schwartz, Relational Contracts in the Courts: An Analysis of Incomplete Agreements and Judicial Strategies, 21 J. Legal Stud. 271 (1992).

¹⁴⁶ Oliver E. Williamson, The Economic Institutions of Capitalism 75 (1985) (“The interests of the principals in sustaining the relation are especially great for highly idiosyncratic transactions. Market relief is thus unsatisfactory.”). See also Goetz & Scott, supra note 145, at 1101 (stating that a relational contract is preferable when the costs of renegotiation of a short-term deal are higher than adaptation through the contractual mechanisms, such as when investments yield deferred returns).

¹⁴⁷ Goetz & Scott, supra note 145, at 1091. On the distinction between discrete and relational contracts, see also Macneil, Social Contract, supra note 145, at 10–35.

¹⁴⁸ Macneil, Social Contract, supra note 145, at 44–47.

¹⁴⁹ For the game-theoretical aspects of relational contracts, see Robert E. Scott, Conflict and Cooperation in Long-Term Contracts, 75 Cal. L. Rev. 2005 (1987). On the iterated PD game, which leads to cooperation, see text at and notes 35–40 supra.

¹⁵⁰ See Macneil, Social Contract, supra note 145, at 50–52, 84–90.

¹⁵¹ Ellickson recommends flexibility and mutuality to foster informal systems of cooperation in the domestic sphere: “laws that serve to distribute power more broadly and equally are likely to bolster informal-control systems.” Ellickson, supra note 17, at 286. No doubt, the same is true in the international sphere.

¹⁵² Under the strict conditions of Article 62(1) of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, a party may not unilaterally withdraw from its treaty obligations unless it can show, inter alia, that “a fundamental change of circumstances has occurred with regard to those existing at the time of the conclusion of the treaty, and which was not foreseen by the parties.” In most cases, a change in water demand or supply would be incremental and foreseen by the parties.

¹⁵³ See pt. IV supra, “Ensuring Stability and Sustainability through Substantive Requirements.”

¹⁵⁴ See Williamson, supra note 146, at 78 (incentives for trading weaken as transactions become progressively more idiosyncratic; thus vertical integration will appear).

¹⁵⁵ Notable counterexamples are Abbott, supra note 6, and Slaughter, supra note 6.

¹⁵⁶ According to Stephen D. Krasner’s widely accepted, albeit rather loose, definition, international institutions are “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.” International Regimes 2 (Stephen D. Krasner ed., 1983).

¹⁵⁷ On game theory and the study of international institutions, see Andrew Kydd & Duncan Snidal, Progress in Game-Theoretical Analysis of International Regimens, in Regime Theory and International Relations 112–35 (Volker Rittberger ed., 1993).

¹⁵⁸ Williamson, supra note 146, at 118, states: “Transaction cost economies will warrant integration where the parties are tightly joined in a bilateral exchange relation, making problems of harmonizing the interface crucial, and where integration does not sacrifice economies of aggregation.”

¹⁵⁹ Robert O. Keohane, International Institutions and State Power 167 (1989).

¹⁶⁰ On different types of international institutions, see, e.g., Oran R. Young, International Cooperation (1989).

¹⁶¹ On the achievements of institutions in protecting the environment, see Institutions, supra note 41.

¹⁶² See Robert O. Keohane, After Hegemony 85–98 (1984).

¹⁶³ This has proven crucial even in Canada-U.S. relations. David G. LeMarquand, Preconditions to Cooperation in Canada–United States Boundary Waters, 26 Nat. Resources J. 221, 232 (1986) (noting that “informal intelligence gathering [by low-level officials] helps to provide an early warning of impending issues, and permits actions before issues become too politicized”). On the Canada-U.S. International Joint Commission, see Wouters, supra note 106, at 52–80.

¹⁶⁴ Haas, Keohane & Levy, The Effectiveness of International Environmental Institutions, in Institutions, supra note 41, at 3, 14 (calling degree of domestic pressure key variable in effecting policy change in major industrialized democracies, rather than decision-making rules of international institution concerned); see also Haas, Keohane & Levy, Improving the Effectiveness of International Environmental Institutions, in id. at 397, 399–400.

¹⁶⁵ See Hayton & Utton, supra note 73.

¹⁶⁶ See Report of the International Law Commission on the work of its thirty-ninth session, [1987] 2 Y.B. Int’l L. Comm’n, pt. 2, at 32, UN Doc. A/CN.4/SER.A/1987/Add.1 (pt. 2). See also Resolution on the Utilization of Non-Maritime International Waters, supra note 92, preamble (considering that “the maximum utilization of available natural resources is a matter of common interest,” and recommending “recourse to technical experts … to arrive at solutions assuring the greatest advantage to all concerned”). Article 4 of the Helsinki Rules, 52 Conference Report, supra note 4, at 487, emphasizes the “beneficial uses of the waters,” meaning that states are bound by “a duty of efficiency which is commensurate with their financial resources.”

¹⁶⁷ See Seoul Rules, Art. 4, 62 Conference Report, supra note 4, at 272 (“Basin States should consider the integrated management, including conjunctive use with surface waters, of their international groundwaters at the request of any one of them.”). As early as 1911, the Institut de Droit International recommended the establishment of such institutions. Resolution on International Regulations regarding the Use of International Watercourses, 4 Annuaire de L’Institut de Droit International 1359, 1361 (ed. nouvelle abrogee, 1928) (recommending joint commissions to make decisions or at least give advice when work contemplated by one state might have an important effect on the part of the watercourse in the other state).

¹⁶⁸ Helsinki Convention, supranote 73, Art. 9(2) (agreements between parties “shall provide for the establishment of joint bodies,” defined in Article 1 as “any bilateral or multilateral commission or other appropriate institutional arrangements for cooperation”); ECE, Charter on Ground-water Management, supra note 73, Art. 25(1) (recommending “[c]oncerted endeavours to strengthen international co-operation for harmonious development, equitable use and joint conservation of ground-water resources,” and the establishment of joint commissions or other intergovernmental bodies “to implement such co-operation”).

¹⁶⁹ For surveys of such institutions, see Richard D. Kearney, International Watercourses, in A Handbook on International Organizations 509 (Rene-Jean Dupuy ed., 1988); Brice M. Clagett, Survey of Agreements Providing for Third-Party Resolution of International Water Disputes, 55 AJIL 645, 655, 660–61 (1961). These institutions exist in many different parts of the world. For recent instruments, see, e.g., Helsinki Convention, supra note 73; S. Africa-Namibia Agreement, supra note 97; Joint Water Committee, established under the Israel-Jordan Treaty of Peace, supra note 61, Ann. II, Arts. VI, VII; and the Israeli-Palestinian Interim Agreement, supra note 28.

¹⁷⁰ Draft Article 8 provides: “Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity and mutual benefit in order to attain optimal utilization and adequate protection of an international watercourse.” 1994 ILC Report, supra note 5, at 244; see also commentary, id. at 244–49.

¹⁷¹ For criticism of the 1991 ILC draft for failure to provide satisfactory procedural rules on the exchange of information and notification of planned measures, see Bourne, The Right to Utilize, supra note 106, at 68–72; Alberto Szekely, “General Principles” and “Planned Measures” Provisions in the International Law Commission’s Draft Articles on the Non-Navigational Uses of International Watercourses: A Mexican Point of View, 3 Colo. J. Int’l Envtl. L. & Poly 93, 99–100 (1992); Gunther Handl, The International Law Commission’s Draft Articles on the Law of International Watercourses (General Principles and Planned Measures): Progressive or Retrogressive Development of International Law?, 3 Colo. J. Int’l Envtl. L. & Poly 123, 124–29 (1992).

¹⁷² Many commentators in the Sixth Committee suggested including binding procedures for arbitration and judicial settlement; many others, however, rejected that idea. UN Docs. A/C.6/49/SR.17–26 (1994).

¹⁷³ McCaffrey, Sixth Report, supra note 83. See Sergei V. Vinogradov, Observations on the ILC’s Draft Rules: “Management and Domestic Remedies,” 3 Colo. J. Intl Envtl. L. & Pol’y 235, 235–41 (1992).

¹⁷⁴ “1. Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism.” 1994 ILC Report, supra note 5, at 300; for commentary, see id. at 300–04. For criticism of one of the draft’s “weakest provisions,” see Constance D. Hunt, Implementation: Joint Institutional Management and Remedies in Domestic Tribunals (Articles 26–28 and 30–32), 3 Colo. J. Intl Envtl. L. & Pol’y 281, 284–87 (1992).

¹⁷⁵ See supra notes 168, 169. Article 9 of the Helsinki Convention, supra note 73, identifies a long list of topics to be considered by the joint bodies, see Art. 9(2)(a)–(j), and Articles 11 and 12 specify obligations to implement joint programs to monitor the condition of the resource and to undertake research and development activity to ameliorate water quality. The ILC’s draft Article 24(2), on the other hand, refers rather perfunctorily to “planning for sustainable development” and “otherwise promoting rational and optimal utilization,” as possible goals of the joint “mechanisms.”

¹⁷⁶ The proposed convention has a dual character: many of its provisions are nonbinding, yet the instrument is supposed to reflect existing law. The text is therefore unclear on the rights and obligations of riparians absent an agreement. See the different views expressed in the Sixth Committee, UN Docs. A/C.6/49/SR.22, at 15 (1994) (Switzerland); SR.23, at 10 (Spain); SR.26, at 8 (Slovenia); SR.28, at 2 (Ethiopia).

¹⁷⁷ Indeed, while the draft article on dispute settlement drew much attention in the Sixth Committee in 1994, see supra note 176, the provision on management did not provoke any reaction. There were only two comments on joint management, in the context of draft Article 5. Both comments supported the idea. See UN Doc. A/C.6/49/SR.24, at 8 (Egypt), 12–13 (Iran).