By: Tamar Meshel
Freshwater is a fleeting natural resource that can never be fully harnessed or appropriated by humans. Nonetheless, under both domestic and international law, freshwater is a regulated resource and legal principles have developed to govern its allocation and use. But what of freshwater that, rather than flowing naturally, has been made to so flow by human intervention? Should artificial waterways be subject to the same legal principles that govern the ownership and use of waterways that are naturally occurring?
This Article takes a first step toward clarifying when and how international water law principles applicable to natural transboundary waterways should be applied to artificial transboundary waterways. While the Article focuses on artificial waterways in the international context, it approaches these questions from a domestic water law lens. The Article suggests that general insights may be drawn from the experience of domestic courts in solving water-related problems that exist also at the international level but that international law does not currently address. Specifically, the Article examines the treatment of artificial waterways in American water law as a case study.
The Article first discusses artificial waterways in the international context, examining international court decisions, treaties, and other cross-border regimes relevant to the regulation of transboundary artificial waterways. It concludes that there is no uniform approach in international water law to the treatment of transboundary artificial waterways. The Article then turns to American water law, examines the legal definition of artificial waterways, and identifies two basic principles that have guided American courts in determining the legal status of such waterways: the physical attributes of the artificial waterway and whether it has legally “become” a natural watercourse. The Article suggests that these two principles could also inform the regulation of transboundary artificial waterways and the resolution of disputes arising from their use, and applies them to the Silala case currently before the International Court of Justice (ICJ).