Part IV Fundamental Rights and Obligations, A Substantive Obligations, 11 The Obligation to Protect International Watercourses and Their Ecosystems

This chapter looks at the obligation not to cause significant pollution to other states sharing freshwater resources, and of the emerging obligation to protect the ecosystems of international watercourses. While problems of water pollution have perhaps received more attention in the literature, it seems probable that the protection of watercourse ecosystems is of wider significance, in terms of geography, meeting basic human needs, and sustainable development. Sustainable development was endorsed at the 1992 Earth Summit as the proper approach to reconciling economic development with protection of the environment. It aims at ensuring that economic development will not exhaust the very resources on which it, and human welfare itself, depend. Clean water and healthy aquatic ecosystems are cornerstones of this effort. International law has now progressed to the point that it protects those values.

Part III The Major Cases and Controversies: A Survey of State Practice, 6 The Major Cases

This chapter explores cases bearing on the field of international watercourses that have been decided by the International Court of Justice or its predecessor. States have submitted only a few disputes concerning international watercourses to the International Court of Justice or its predecessor, though the pace is clearly picking up. There are doubtless many factors that explain this phenomenon, including reluctance to give a dispute a high international profile, reluctance to trust dispute resolution to a third party over whom states have no control, hesitancy about submitting a dispute to a tribunal composed of judges, the expense of litigating before the World Court, and the like. On the other hand, states are bringing an increasing number of cases of all kinds, including those concerning international watercourses, to the Court, indicating that it is becoming a more popular forum for the resolution of disputes.

Part II Evolution and Theoretical Bases of the Law of International Watercourses, 3 The Evolution of the Law of International Watercourses

This chapter traces the history of the use of water by human societies, discusses impediments to the development of the law in this field, and introduces the theoretical challenge inherent in application of international norms to resources within a state’s borders. The law of international watercourses has developed in tandem with the evolution of human social organization and the intensification of use by human societies of fresh water. Evidence of early canals and dikes suggests that small communities and city-states had found it necessary to cooperate in order to control and utilize effectively the waters of major rivers. When the growth of other uses—such as irrigation and the generation of hydroelectric power—began to give rise to disputes, the first reaction was often to try to apply rules from other branches of international law to the problem.

Part IV Fundamental Rights and Obligations, A Substantive Obligations, 10 The Obligation to Prevent Harm to Other Riparian States

This chapter focuses on the “no-harm” obligation. Article 7 of the 1997 UN Watercourses Convention provides that in utilizing an international watercourse, states have an obligation to “prevent the causing of significant harm” to other states sharing the watercourse. The inclusion of this provision in the Convention, and especially its placement in a section of the Convention entitled “General Principles,” implies that it is one of the fundamental obligations in the field. Nevertheless, many questions surround the no-harm principle, particularly as it applies in the context of international watercourses. The chapter then addresses three preliminary matters. The first concerns the legal status of the no-harm principle and its relationship to equitable utilization. The second question concerns the meaning of “harm.” The third and final issue has to do with the way in which the operation of the no-harm rule has traditionally been conceived.

Part III The Major Cases and Controversies: A Survey of State Practice, 7 Selected Case Studies

This chapter provides descriptions of past or present controversies between states concerning non-navigational uses of international watercourses. Some of the controversies considered have been settled while others are ongoing and show no signs of an imminent resolution. Eight of the eighteen drainage basins examined are now governed by treaties dealing with the problem that gave rise to the dispute in question. In all of the cases reviewed, the disputes were matters of high national interest, engaging the attention of government officials, diplomats, and scholars alike. Indeed, several of the controversies were brought before the United Nations, usually with good effect. Ultimately, some of the basins will probably receive increasing international attention as expanding populations, climate change, and upstream development efforts combine to place further demands on already scarce water resources.

Part II Evolution and Theoretical Bases of the Law of International Watercourses, 5 The Contribution of the Law of Navigation

This chapter examines the law of navigation on international waterways, its development, and the contribution it has made to the law of international watercourses more generally. The rules of international law regarding navigation on international waterways are most highly developed in Europe. The development occurred—to some extent—bilaterally but was consolidated and widely dispersed by the major peace treaties beginning with the Peace of Westphalia in 1648. These rules provided broadly for freedom of navigation, first for riparians then for all nations. In the absence of a contrary treaty regime or inconsistent state practice regarding a particular waterway or area, the principle of freedom of navigation for states riparian to an international waterway should be presumed to be the prevailing standard under general international law. The content of this principle is that which has developed through the consistent practice of states over nearly two centuries.

Part IV Fundamental Rights and Obligations, A Substantive Obligations, 9 Equitable and Reasonable Utilization

This chapter examines the concept of equitable utilization. Equitable utilization is chiefly a doctrine governing apportionment, or allocation, of water between states sharing an international watercourse. It is a dynamic process, which depends heavily upon active cooperation between states sharing fresh water resources. A new use in one state may change the equitable utilization calculus as among all riparians and therefore should be the subject of prior notification, consultation, and, if necessary, negotiation. This is true whether the new use is made by an upstream or a downstream state: new upstream uses may have physical impacts upon those downstream; and new downstream uses may have legal impacts upon those upstream, because they may alter the equitable balance of uses in such a way as to make subsequent new uses in an upstream state inequitable.

Part II Evolution and Theoretical Bases of the Law of International Watercourses, 4 The Theoretical Bases of International Watercourse Law: An Examination of the Four Principal Theories

This chapter studies the four principal theoretical bases of the law of international watercourses, ranging from absolute territorial sovereignty to community of interest. This study yields several conclusions. First, there is virtually no support—in either state practice, judicial decisions, or the writings of commentators—for the isolationist and unilateralist theories of absolute territorial sovereignty and absolute territorial integrity. Second, the doctrine of limited territorial sovereignty—when the expression is properly understood—appears to come closest of the four theories to describing the actual situation produced by state practice. Finally, the community of interest theory has much to recommend it as a theoretical context for the law of international watercourses. The theory describes well the state of affairs existing among co-riparian states. It has also found expression in agreements establishing joint institutional mechanisms for the protection, management, and development of shared fresh water resources.

Part I Introduction, 1 Human Use of Fresh Water and the Era of Water Scarcity

This introductory chapter discusses the importance of water to humans, its growing scarcity relative to human populations, and, consequently, the increasing potential for water-related conflicts between States. Humans are straining the limits of a resource essential to their survival. Moreover, humans are capable of altering natural conditions to the point that their neighbors are deprived of fresh water they need and have historically relied upon. While international law plays an important role in resolving conflicts between states, it can play an even more valuable role in preventing them, in establishing conditions that are conducive to cooperation among states sharing freshwater resources. Indeed, cooperation is itself a logical outgrowth of rules of international law applicable in this field.

Part IV Fundamental Rights and Obligations, D Dispute Avoidance and Settlement, 14 Dispute Avoidance and Settlement: Selected Aspects

This concluding chapter highlights two propositions concerning the avoidance and settlement of disputes, specifically in the field of international watercourses. The first proposition is that it is believed desirable that problems relating to international watercourses be resolved on the private level, through courts and administrative bodies, insofar as possible and appropriate. Private dispute resolution will usually bring relief to the individuals concerned more expeditiously than diplomatic procedures and will tend to keep disputes from becoming overblown and unnecessarily politicized. The second proposition concerns the use of expert bodies for fact-finding and resolution of disputes. The proposition is that differences and disputes can often be avoided and resolved on a non-political level through joint technical bodies, and that states sharing international watercourses should therefore make provision for the use of such entities.