Transboundary Hydropower Projects Seen Through The Lens of Three International Legal Regimes – Foreign Investment, Environmental Protection and Human Rights

Abstract

Recent years have witnessed a growing interest in hydropower. Many countries now see hydropower as a ‘cheap and clean’ alternative to fossil fuels, and therefore an important strategy in addressing climate change. However, much of the world’s hydropower potential is situated in transboundary rivers where existing cooperative arrangements are weak. These river basins are heavily reliant on ‘out of basin’ principles for water sharing. A set of substantive and procedural laws has evolved under customary international law to determine the rights and obligations of States sharing these transboundary rivers. Two further ‘out of basin’ legal regimes are also likely to have an important bearing on transboundary hydropower projects, namely laws concerning foreign investments, and laws protecting the interests of local communities. To date, there has been limited analysis of the linkages between these different regimes, and no study that has considered their relationship within the context of transboundary hydropower. This paper demonstrates that there are critical intersections to be made. These intersections provide important opportunities to explore how these three legal regimes can be implemented in a mutually reinforcing manner.