The Evolution of Interstate Arbitration and the Peaceful Resolution of Transboundary Freshwater Disputes

There is no single natural resource on which the world depends more than freshwater. Unfortunately, climate change, depletion of resources, population growth, unequal distribution, and inefficient use all mean that freshwater is rapidly becoming a scarce resource, aptly named the “Blue Gold.” Further fueling the competition over freshwater is the fact that many of the freshwater resources available for human consumption are not contained within national borders, but are rather unevenly distributed among two or more states. As states strive to take advantage of shared freshwater passing through their territory, they often disregard or harm the interests of other states and disputes may arise as a result. Moreover, even though the core principles of international water law, designed to prevent and resolve such disputes, are commonly viewed as forming part of customary international law, their interpretation remains controversial and the main multilateral treaty codifying them has failed to gain wide acceptance. Therefore, transboundary freshwater disputes (TFDs) may not be readily solved by juridical decisions and states might be reluctant to submit these for legal resolution by an international court. Rather, they most attempt to resolve these by way of bilateral negotiation or non-binding third-party mechanisms such as mediation, conciliation, and good offices. However, such mechanisms are not always effective in resolving TFDs, while arbitration presents an effective and flexible alternative for such resolution. This article therefore sets out to examine the potential of arbitration to be effectively employed by states in the resolution of TFDs