Problem I: International Waters: Resolving Conflict over the Nile

     Increasing stresses on water resources continue to generate international controversies.

     In 1960, after nine years of intensive negotiations, India and Pakistan signed the Indus Waters Treaty. The treaty divided the six rivers comprising the Indus River system between the two parties, with India getting the Eastern rivers (the Sutlej, the Beas and the Ravi), and Pakistan getting the Western rivers (the Indus, the Jhelum and the Chenab). Despite this general allocation, each country has been allowed certain uses in the rivers allocated to the other. Those uses were detailed in separate annexures to the Treaty. Annexures F and G deal with “Neutral Expert” and “Court of Arbitration,” respectively, in connection with settlement of differences and disputes. The World Bank, which mediated the parties’ initial dispute over the Indus basin, is also a party to the treaty. The treaty outlines certain responsibilities of the Bank including a limited procedural role in dispute resolution.

     In 2005, for the very first time, the Bank was called upon to exercise its dispute settlement responsibilities. Pakistan declared that a “difference” has arisen with India with regard to the Baglihar Hydropower plant that India was constructing on the Chenab river. Pakistan claimed that the plant was not being constructed in accordance with the detailed conditions set out in the Indus Treaty. After consultations with the two parties, the Bank appointed Mr. Raymond Lafitte, a Swiss national and professor at the Swiss Federal Institute of Technology as a Neutral Expert. In 2007, after receiving oral and written arguments and visiting the plant site, the Neutral Expert issued his report. He found that, in several respects, the plant did not comply with Treaty provisions, and directed India to make certain changes to the plant, including a reduction in its planned height. The Treaty provides that this decision is final and binding upon the parties. The full decision can be found here.

     Another high-profile dispute involves Argentina’s claims that Uruguay’s use of the River Uruguay violates a 1975 Statute of the River Uruguay, a treaty between the two states that establishes a joint regime for the use of the river. In particular, Argentina claimed that Uruguay violated the Statute’s obligatory procedure for prior notification and consultation when it approved construction of two large pulp mills on the river. In July 2006, the Court denied Argentina’s request for provisional measures. The Court noted that provisional measures are premised on an urgent need to prevent irreparable prejudice to the rights that are the subject of the dispute before the Court has had an opportunity to render its decision, and that it was not persuaded that any violations of Uruguay’s procedural duties would not be capable of being remedied at the merits stage of the proceedings. The Court also determined that the record before it did not demonstrate that the construction of the mills presents a risk of irreparable damage to the environment. However, the Court emphasized that, in proceeding with the authorization and construction of the mills, Uruguay necessarily bears all risks relating to any finding on the merits that the Court might later make. It also warned Uruguay that “if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled.” The Court’s order can be found here.

     The dispute has triggered activity in other fora as well. In spring 2006, Argentine demonstrators set up roadblocks that rendered it impossible to use two of the three bridges crossing the Uruguay River. Uruguay, claiming that the roadblocks cost it some $500 million in lost trade and tourism revenues, sought arbitration before a Southern Common Market (MERCOSUR) panel. In September 2006, the arbitral panel found that Argentina’s failure to remove the barricades was “not compatible with the commitment . . . to guarantee the free flow of goods and services.” However, the panel imposed no economic sanctions, and denied Uruguay's request that Argentina be ordered to take steps to ensure the blockades are not reestablished. After release of this report, both sides claimed victory.

     In light of the controversy over these projects, in April 2006, the International Finance Corporation, the World Bank’s private sector lending arm, decided to withhold $400 in financing for the two projects pending review of an environmental impact study. At the same time, a Dutch bank cancelled plans to arrange financing for one of the plants.

Problem III: Protecting the Planet: Combating Climate Change

     Efforts to address climate change have intensified since publication of the textbook. A number of high-profile reports kept public attention focused on the issue; states agreed to launch negotiations over a new climate change treaty; and a variety of regional, national, subnational and private actors undertook a series of climate initiatives.

     A series of widely-publicized reports focused public attention on climate change. For example, in October 2006, Sir Nicholas Stern, Head of the U.K. Government Economics Service and former chief economist at the World Bank, released a comprehensive report on the economic dimensions of climate change. Stern reported that “our actions over the coming few decades could create risks of major disruption to economic and social activity, later in this century and in the next, on a scale similar to those associated with the great wars and the economic depression of the first half of the 20 th Century.” The report warns that failure to address the problem could result in a “permanent reduction of 20% of GDP.” An executive summary of the report can be found here.

     Thereafter, the IPCC released a series of reports. The first, in February 2007, presented a "comprehensive and rigorous picture" of current knowledge about global warming. The report concluded that the fact of global warming is "unequivocal," that it is "very likely" caused by human activity, and that the Earth's average surface temperature will probably rise by 3.2 degrees F to 7.2 degrees F in this century, and could rise as much as 11.5 degrees F. A summary of the report can be found here. This was followed by an IPCC report on climate change impacts, adaptation and vulnerability.  The report detailed how the planet’s climate and ecosystems, including various species, water supplies, ice sheets and regional conditions, were already being affected by climate change.   The report emphasized that the most severe impacts will be felt by the poorest, primarily in Africa, the river deltas of southern Asia , and low-lying islands.   A summary of the report can be found here. Finally, in November 2007, the IPCC released a synthesis report, which noted that global GHG emissions due to human activities had increased by 70% between 1970 and 2004 and that steep reductions are necessary to avoid serious and potentially catastrophic impacts. A summary of the report can be found here.

     In October, 2007, the IPCC and Al Gore were awarded the Nobel Peace Prize for their efforts to document and raise awareness about the risks of climate change.

Multilateral Efforts: The Bali Action Plan

     In December 2007, parties to the FCCC and the Kyoto Protocol met in Bali , Indonesia to discuss the terms for future climate negotiations. Although many issues were on the table, an important element of the negotiations involved the EU pushing the United States to agree to hard commitments; the United States resisting these efforts and seeking efforts by developing states; and developing states resisting commitments for themselves while seeking greater technological and financial assistance. After dramatic and, at times, acrimonious debate, the parties reached agreement on a “Bali Action Plan.” Under this plan developing nations for the first time agreed to consider taking “measurable, reportable and verifiable” mitigation actions; in exchange, these actions would be supported by technology and finance from developed states that would also be “measurable, reportable and verifiable.” For its part, the United States agreed to consider taking “commitments or actions,” potentially including emissions targets. The negotiating process launched in Bali is intended to reach a new, comprehensive climate change agreement in 2009.

Other Initiatives

     A number of developments related to climate change occurred, including:

- in Massachusetts v. EPA, 127 U.S. 1438 (2007), the Supreme Court held that the EPA had statutory authority to regulate carbon dioxide emissions from motor vehicles. The Court also noted that “the harms associated with climate change are serious and well recognized” and that the federal government did not contest the causal connection between anthropogenic greenhouse gas emissions and climate change.

     In April 2008, officials from 18 states and several environmental groups, claiming that the EPA was ignoring this ruling, sued the agency in an effort to force it to determine whether GHGs are endangering public health.

- the governors of Arizona, California, New Mexico, Oregon and Washington, later joined by the Governor of Utah and the Premiers of British Columbia and Manitoba, created the Western Climate Initiative to create a regional greenhouse gas trading system.

- in October, 2007, a coalition of European countries, U.S. states, Canadian provinces, New Zealand and Norway created the International Carbon Action Partnership to address global warming. The Partnership will explore linkages between existing and emerging emission trading markets, with the goal of creating well-functioning global cap and trade carbon market.