Sustainable development of water resources international regulations mekong regional cooperation and vietnamese national legislation

Two important understandings o f the concept of sưstainable development, as applied to vvater resources, have been reached: it represents an integration o f water utilization for develop

Dissertation presented as full fulfillment of the requiremcnts for

the Dcsree of Doctor of Laws

Name: Le Thanh Long Narae ofcourse: Proíessional Program in La\v and Political Sciences (2000-2003)

A E S T R A C T

The problems of water scarcity and pollution which had not been o f a particular concem of traditional water resources law can now be partly relieved by applying the concept of sustainable development at the international, regional and national levels This flexible leaal tool is in a position to keep the risht balancs betvveen the use and protection of water

Two important understandings o f the concept of sưstainable development, as applied to vvater resources, have been reached: it represents an integration o f water utilization for developmental purposes and the resource’s environmental protection, and can act as a guiding concept for handling speciĩic water issues Intemationally, these perceptions are reílected in

the Gabcikovo-Nagymaros case adjudicated by the International Court of Justice and the 1997

Watercourses Convention The States in dealing with their water issues can rely on the mạjor findings of the Court and the guidelines enshrined in the Convention

Having to accommodate a hodgepodge of interests, there was no other choice for the existing cooperative framework on the M ekong to ink a nevv V i s i o n o f sharing the ri v e r in a rather general, complex, and piagmatic Ìũdnner The provisions on the M ekong’s deveiopmsnt arc interlocked with those on environmental protection, thus creating a sophisticated “ check-and- balance” mechanism for the river's sustainable development The Mekong River Commission

is the ầppropriate actor responsible for, and is capable of, disentangling this extricate web

Legal regulations for sustainable development of water resources exist in Vietnam A number

of modern provisions on vvater use, protection and management of water resources are now incorporated in the related legislation There are, however, ensuing problems While the substantive loopholes and discrepancies may be overcome vvithout much difficulty, practical implementation is rather challenging Solving the problems is a time-consuming process, whịch rẹquires constant efforts and stronger commitments from the highest levels of the Government

A C K N O W L E D G E M E N T SThe writin£ of chis dissertation has been possible thanks to a number of asencies and people.

My foremost and deepest gratitude eoes to my main academic advisor, Professor Yoshiro Matsui It was with his advice that I found the main theme, and directions for developing the backbone arguments, o f the chosen top ic.-H e helped me shape the organization of the dissertation and was very effective in íorcing me to vvrite it as cohercntly and clearly as I could His remorseless and meticuious attention to detail has made the thesis readable

I thank my sub-academic advisors for their great contribution Professor Hisakazu Kato especially assisted me in streamlining Chapters Four and Five, and suggestcd how to evcn better glue ìhe different parts o f the dissertation to make it a more congruous who!e Professor Haruo Saburi’s Sharp comments led to the more consistent use of kcy terms, and cnrichcd the difí"erent parts of the dissertation

I cwe great thanks to the Japan International Coopcration Agency and its associatcd organization - the Japan Internationa! Cooperation Cer.tsr - vvhich gencrously "ranted and administered my scholarship At these two organizations, Mr Okubo, Mr Nakazono, Ms Ikeda, Ms Nada, and Ms Takimoto deserve special thanks I vvould also like to express my graũtude to PFofessor M orishima who once worked part time for JICA, for his facilitation in aưanging my program

In the Nagoya University Graduate School o f Law, Okuda SenseT\vas alvrays ready to do every possible thing to make my life in Nagoya enj.oyable She is not only an intemational stucients advisor, but also a caring sister The Library Staff have never hesitated in assisting

me in my research for materials The Information Processing Center provided me with unlimited access to internet sources, especially the Nexis-Lexis legal data base The Administration Office was of great assistance in preparing the necessary logistic matters Mr Paul Lege edited this dissertation My m any thanks go to all of them

The Vietnam Ministry o f Justice granted me an extended stucly leave to undertake this doc:oral program The help o f Minister Nguyen Dinh Loc, -whom I assisted as a secretary, Vice-Minister H a H ung Cuong, and International Cooperation Department Director Nguyen Hu) Ngat is acknovvledged with great gratitude

Mr Nguyen Nhan Quang, Deputy Director General, and the Information and-Library Staff at the Vietnam National M ekong Committee not only spared their valuable time to give me an insiịht into the M ekong current matters, but also provided me with access to the collection of

M R I primary materials and unpublished papers that I would otherwise not have been ablc to íindin any library I would like to thank them

My fellow graduate stuđent, Nguyen Quoc Vinh deserves thanks for his general interests in the opic Ms D ang Hoang Oanh is thanked for having been of special help and inspiration whiih gave me the sưength to overcome the many difficulties that I encountered in vvriting the ầissenation

Lastbut not least, I thank my parents and children for their moral support

Having thanked the above agencies and people, I nevertheless do not foraet that I am responsible for this work, especially its \veaknesses.

D E D IC A T IO N

To Nga & Nhan - my daughtcr and son

T A B L E 0 F C O N T E N T S )

Ticle page i

Abstract ii

AcknowIedgements iii

Dedication V Table of contents vi

Abbreviations xii

Chapter One GENERAL IN T R O D U C T IO N 1

Chapter T\vo EVOLUTION OF INTER N A TIO N A L VVATER LAVV CONCEPTS AND PR IN C IPLE S 6

I 4N TRO D U CTIO N 6

II THE EXTREME CONCEPT OF ABSOLUTE TERRITO RIA L SO V EREIG N TY 7

1 Historical backgrounds and n atu re 7

2 The concept in treaties and p r a c t ic e 8

(a) United States - Mexico 8

(b) United States - Canada 9

(c) Other s t a t e s 10

3 C o n clu sio n s 12

III THE CONCEPT OF A B SO LU TE TER RITO R IA L INTEG RITY 13

1 Background and im p lic a tio n s 13

2 Practical uses and c l a i m s 14

3 C o n c lu sio n s 15

r v TH E NON-SIGNEFICANT H A RM P R IN C IP L E 16

1 Origin and t y p e s 16

2 The principle in international law and international \vater lavv 16

3 Analysis of the non-signifícant harm p r in c ip le 19

(a) Significant harm 20

(b) The narrow scope o f the non-significant harm p r i n c i p l e 22

(c) “S o ft” language used toprovide f o r o b lig a tio n s 23

4 C o n c lu s io n s 24

V THE PRINCIPLE OF EQ U ITA BLE AND R E A SO N A B L E U T IL IZ A T IO N 24

1 R a tion ale 24

2 Equity in general international l a \ v 25

3 Equitable and reasonable utiIization of international w a t e r s 26

(a) Federal States and international c a s e s : 27

(b) Bilateral and multilateral ỉnstrum ents 29

(c) Weaknesses o f the ERU P in the 1997 Wcitercourses Convention 33

(d) ERƯP and economically less developed c o u n tr i e s 34

4 C o n c lu s io n s 34

VI THE CONCEPT OF C O M M U N ITY OF IN T E R E S T S 35

1 Origin and developm ent 36

2 Community of interests as equality o f r i g h t s 37

3 Joint management and d e v e lo p m e n t 38

4 C on clu sio n s 40

VII PRO CED U RAL P R IN C IP L E S 40

1 General obligation to c o o p e r a t e 41

2 Regular e.xchange of data and in f o r m a t io n 42

3 Prior notice and good faith n e g o t ia t io n 42

4 Su m m ary 45

VIII C O N C L U S IO N S 45

C h a p t e r T h r e e SUSTAINABLE D E V E L O P M E N T AS A C O N C E P T FO R H A N DLIN G S P E C IF IC W ATER ISSUES AiND F O R L A W M A K IN G AND INTERPRETATIO N: T H E G A B C IK O V O -N A G Y M A R O S CASE AND T H E UNITED NATIONS IN T E R N A T IO N A L VVATERCOURSES C O N V E N T IO N 49

I SU STA IN A BLE D EV ELO PM EN T: G E N E R A L ISSU ES 49

n SUSTAINABLE DEVELOPMENT AS A GUIDENG CONCEPT FOR D ISPU TE SE TTLEM EN T IN T H E G AB C IK O V O -N AG YM A RO S C A S E 55

1 In place of introduction: the case’s synopsis, the IC J’s ju d gm en t and the scope of Part I I 55

2 Claims and arguments of the Parties and the Court’s d e c i s i o n 57

(a) H ungary 's claims and its arguments f o r a State o f ecological necessity 57

(b) Slovakia 's counter arguments, an d the C o u r t’s d e c is io n 59

3 The concept of sustainable developm ent and the Court’s reasonin g '60

4 Judge W eeram antry’s separate o p in io n 5» 65

(a) The principle o f sustainable d evelopm ent 66

(b) The continuing process o f environmental impact assessm ent 67

5 S u m m a ry 67

III SU STAINABLE D E V E L O PM E N T AS A GUEDENG C O N C EPT FOR ELA BO R A TIO N OF, AND IS R EFL E C T E D IN, TH E 1997 UNITED NATIONS IN T ER N A T IO N A L W A T E R C O U R S E S C O N V E N TIO N 69

1 An overvievv of the Convention’s major provisions and the scope o f issues addressed in Part I II 69

2 - Overall approach: being pulled between utilization ’ and environmental protection 73

3 The “\vatercourse” versus “đrainage basin” : gives and takes in chocỉing term s 76

4 Equitable and reasonable utilization: itself containing environmental requirements 79

(a) Ecologicai/acíors 79

(b) Protection/conservation/actors 80

(c) Economy o f use 81

5 The relationship bet\veen ER U P and NSHP: a slight tilt to\vards u tiIiz a tio n 82

6 Summary 85

IV CONCLUSIONS 86

Chapter four LEGAL à s p e c t s o f m e k o n g r i v e r b a s i n c o o p e r a t i o n AND SUSTAINABLE DEVELOPMENT OF M EKONG WATER R E S O U R C E S 88

I INTRODUCTORY R E M A R K S 88

II LEGAL AND INSTITUTIONAL ASPECTS OF COOPERATION IN THE LOWER M EKONG BASIN PRIOR TO THE CREATION OF THE MRC IN 1995 90

1 The physical geography of the M ekong 90

2 Legal and institutional aspects of the cooperation on the Lovver Mekong Basin prior to the creation of the Mekong River C o m m issio n 92

(a) Period prior to the creation o f the Committee f o r Coordination — o f Investigations o f the Lo\ver Mekong Basin (up to 1 9 5 7 ) 92

(b) The Committee f o r Coordinotion o f Investigations o fth e Lower M ekong Basin (1957-1994) 94

(i) Establishm ent 95

(ii) Organization and procedure 96

(iii) Interim Mekong Com m ittee 96

(iv) Functions and p o w e r s 97

(v) Major activities o f the Mekong Committee 98

Data collection, studies and investỉgations 98

P la n n in g 99

Operational works on the m a in stre a m 99

Tributaries 100

3 Reasons leading to a change of Mekong legal and institutional framework 100

(a) Primary reasons — the submerged part of.the ỉceberg 101

(i) The conílicting needs over the M e k o n g 101

(ii) The stringent requirement of a basic document 102

(b) Secondary reasons - the surface part o f the ic e b e r g 103

(i) Procedural o m is s io n s 104

(ii) Lack o f necessary functions and p o v /e rs 105

(iii) Absence o f a dispute resolution c la u s e 105

(iv) Absence of an environmental c la u s e - 105

III THE 1995 MEKONG AGREEMENT AND SUSTAINABLE DEVELOPM ENT OF M EKONG WATER R E S O U R C E S 106

1 Utilization of iVIekong \v a t e r s 107

(a) Water alloca tion 107

(b) Legal ỉssues ofnotification, prior consultation and agreưment 108

(c) Implications o f Article 5 111

(i) A broader and freer right to use the M e k o n g 111

(ii) Checks and balances of the freer regime o f u s c 112

(iii) Details yet to be ĩurther p r o v id e d 113

2 Protection of the Mekong against pollution 113

3 Preservation of the M e k o n g 115

(a) Economy o fu s e 115

(b) Weighing pros and cons o f Lises - dam c o n str u c tio n 115

(c) The basin approach 118

4 Integration of use, protection and preservation 120

5 S u m m a r y 123

IV TH E MEKONG RIVER COMMISSION- AND ITS ROLE IN SƯSTAINABLE D EV E LO PM EN T OF M EKONG \VATERS 124

1 W orỉd’íj vvaíer bodies: an o v e r v ie \v 124

2 M R C ’s role in materializing M ek o n g ’s sustainable development: the rationale 129 (a) Development versus environment and the M R C to strike CI balance 129

(b) The administrator fo r ỉmplementation o f a generallv/ormulated a g r e e m e n í 130

3 MRC: organization, structure, general f u n c t io n s 131

(a) Organitation, structure, and generalýunctions and p o w e r s 131

(b) Legal nature o fp o w e r and clecisions ’ 133

4 An overvievv of M R C ’s current p r o g r a m s 133

5 Policy and rule m a k i n g 135

(a) The legal b a s i s 135

(b) Elaboration o f a detailed r e g u la to ry fr a m e w o r k 135

c) Materialiiation o f the basin a p p r o a c h 137

(i) Involving the participation o f M yanm ar and C h i n a 137

(ii) Preparing a B D P n 138

6 Environmental r o l e : 138

7 A íbrum for notiíĩcation and c o n s u lt a t io n 141

8 Dispute reso lu tio n 142

9 F u n d r a is in g 143

10 S u m m a r y 145

V C O N C L U S IO N S 3' 146

Chapter Five V IETN A M ESE NATIOiNAL L E G IS L A T IO N AND SUSTAINABLE D E V E L O P M E N T O F VVATER R E SO U RC ES 148

I IN T R O D U C TIO N 148

•II SUSTAINABLE D EV ELO PM EN T OF W A T E R RESOURCES: TH E R A TIO N A LE 149

1 Legal frame\vork for SDWR: harmony of domestic

and international regulations 149

(a ) The 1997 Watercourses Convention 149

(b) Vietnam and Mekong cooperation 151

2 S u stainab le developm ent of \vater resources as V ie tn a m ’s internal n e e d s 152

3 Su m m ary 155

III THE LEGAL FRAMEWORK FOR SUSTAINABLE DEVELOPMENT O F W A T H R R E S O U R C E S 155

1 Statement of issues and scope 155

2 General provisions related to sustainable development 155

3 An overvie\v of \vater resources legislation and the provisions on SDVVR 157

(a) An overvỉew 157

(b) Directprovỉsions on SD W R 158

4 YVater policies, \vater o\vnership, \vater rights and their implications for SDVVR 159

(a) Water p o lic ỉe s 159

(b) Wa t e r o w n e r s h i p , w a t e r ri ght a n d w a t e r LISC p e r n ú t s 160

5 Protection of w ater 164

(a) Water law : 165

(b) \lineral law 165

(c) Urbati development law 166

(d) Crimìnal l a \ v 166

(e) Environmental la w r : 166

ự ) S u m m a r y 167

6 Basin planning and drainage basin a p p r o a c h 167

(a) tyater l a w 168

(b) Vorestry law 169

(c) Land law ! 169

(d) Sumniary 170

7 VVater management and implications for SDVVR 170

(a) 'iVater management agencies 170

(i) The M ARD and line M inistries 170

(ii) The National W ater Resources C ouncil 171

(b) Compliance with water resources legislation 172

(i) \Vater Resources Inspection r 172

(ii) Settling water d is p u te s ặ 172

8 C o n clu sio n s 173

IV SƯSTAENABLE DEVELOPMENT OF WATER RESOURCES: SUBSTANTIVE PROBLEMS AND SUGGESTED SOLUTIONS 175

1 ỉnconsistencies and overla p p in g 175

(a) The yvrong place o fla n d w ỉth surface water b o d ỉe s 175

(b) Omission ofmulíi-purpose licenses/permits in mineral activities 177

2 Lack o f detailed regu lation s 178

(a) Water la w

(b) Environmental la w 179

V SUSTAINABLE DEVELOPiMENT 0 F WATER RESOURCES:

PRACTICAL IM PLEM EN TA TIO N PRO BLEM S

AND SUGGESTED SO L U T IO N S 180

1 The coordination problem 180

2 Limited role of the c o u r t s 183

3 T h e nn an cial c o n s tr a in ts 186

4 C u rb in g pollution at sou rce a n d the p ro b le m of state-ovvned e n te r p ris e s 189

5 Public avvareness and participation 191

(a) Public a w a re n e ss 191

(b) P u b licp a rtic ip a tio n a n d a c ce p ta n e e 193

VI C O N C L U S IO N S 194

Chapter Si.x G E N E R A L C O N C LƯ SIO N S 196

B IB L IO G R A P K Y 200

Am u Int’l L Rev American University International Law Revicw

Asian J Envtl Mgmt Asian Joumal of Environmental Management

Austrian J Pub & Int’l L Austrian Joumal of Public International Law

B c Envtl Aff L Rev Boston College Envirọnmental Affairs Lavv Revievv

Berk J Int’ 1 Law Berkeley Journal of International Lavv

Brơoklyn J Int’l L Brooklyn Joumal of International Law

Can Y.B Int’l L Canadian Yearbook of International Lavv

Case w Res J Int’l L Case Western Reserve Joumal of International Law

Colo J Int’ 1 Envtl L & P o l ’y Colorado Joumal of International Environmental Law

and PolicyColo J Int’ 1 Envtl L Y.B Colorado Joumal of International Environmental Law

Yearbook

CSTEVNA Committee on Science, Technology and Environment of

Vietnam National Assembly

Denv J Lnt’ 1 L & P o l’y Denver Joumal of International Law and Policy

Dick J Int’ 1 L Dickinson Joumal of International Law

ECAFE Economic Commission for Asia and the Far East

Emory Int’l L Rev Emory International Law Review

ESCAP Economic and Social Commission for Asía and the

Pacific

Fordham Envti Law J Fordham Environmental Law Joumal

Fordham Lnt’ 1 L J Fordham International Làw Xoumal

GATT General Agreement on TariíTs and Trade

Geo Int’lEnvtl L Rev Georgetown Intemationai Environmental Law Review

Golden Gite u L Rev Golden Gate University Law Review

Mexico)

J Int’l L lus Journal of International Law and Business

J Int’1 L 'í Po l’y: Joumal of International Law and Policy

J Land Re & Envtl L Joumal of Land, Resources and Environmental Law

J Land Us; & Envtl Law Joumal of Land ư se and Environmental Law

(Vietnam)

(Vietnam)

Investigations of the Lower Mekong Basin)Melboumeư L.R Melboume Unr&rsity Law Review

Mich J Intl L Michigan Joumal of International Law

(Vietnam)

Nagoya JLP Nagoya JoumaI of Law and Politics.

Net In t’l L R Netherlands International Law Rcview

Nct Y.B Int’ 1 L Netherlands Yearbook of International Law

Pac Rim L & Pol’y Pacific Rim Law and Policy

(in MRC)

Suffold Transnat’1 L.Rev Suffold Transnational Law Revievv

Tex In t’l L.J Texas International Law Joumal

U CLA J Int’l L &For Aff U CLA Joumal of International Law and Foreign Affairs

u Denv Water L Rev University o f Denver Water Law Review

Vill Envtl L.J Villanova Environmental Law Journal

Biodiversity (for WSSD) '■

Wis Int’l L.J W isconsin International Law Journal

C h a p t e r O n e

G E N E R A L IN T R O D U C T IO N

T he vvorld currently faces two major water problems: shortaee and pollution.1 Even with the risk of being accused o f over-dramatizing the situation,2 this dissertation cannot avoid substantiating the point by citing certain íigures At present, the world consumes approximately 3,800 cubic kiiometers of water per year.3 Contrarv to popular belief, the reachable and usable amount of water we have is surprisingly small as compared vvith the total amount of water available on earth.4 It is estimated that if this trend of consumption continues, one-third of the countries in the vvorlcTs \vater-stressed regions will face watcr shortages in the twenty-fưst century.5 Added to the already menace o f scarcity is vvater ppllution Public health officials attribute almost 80% of illness in dcveloping countries to contaminated vvater.6 Some 6,000 children die every dav from discascs associated vvith lack of access to safe drinldng water, inadequate sanitation and poor hygicnc.7 The conccpt of sustainable development (i4CSD”) - a tool believcd to bc ablc to addrcss thcsc tvvo problcms while ensuring the appropriate degree of water utilization - has becomc a necessity

Traditional international water law has not been particularly concerned with the aforesaid problems Its principal focus, as we will see in this dissertation, has mainly been rules and principles for allocatins shared watercourses between upstre-am and downstream states, and

1 See A genda 21 in REPO RT OF TH E UNITED NATIOiVS C O N FE R E N C E OM E N V IR O N M E N T AND

D EV ELO PM EN T, A/CONF 151/26, vol II, Aug 13, 1992 (ch 18.3 stating that the vvidespread scarcity, gradual destruction and aggravated pollution o f freshwater resources in m any vvorld regions dem and integrated water resoưrces planning and m anagem ent).

In the U nited States in the 1970s, environm entalists were som etim es blam ed for econom ic hardship by dem anding too much, overstating environm ental dangers and understating the cost of regulations F or this, they were depicted as Litde Chickens, or as little yapping dogs, running around proclaim ing that the sky was íalling

T hey becam e so unpopular that were characterized by bum per stickers such as ‘i f you are cold, hungry and out

o f work, eat an environm entalist.” See Ronald J Rychlak, Wìĩai is the Most Com pellỉng E nvironm ental Issue

F acing the World on the B rink o f the T\venry-First Century: C hanging the Face o f E nvironm entalism , 8

F ordharm Envtl L a w J 115, 116-7 (1996).

3 See WORLD COMMISSION ON DAMS, DAMS a n d DEVELOPMENT, A NEW FRAMEWORK FOR DECISION MAKING,

(Earthscan Publication 2000) at xxix (indicating that current íresh w ater consum ption w orldw ide has doubled since 1950) [hereinafter DA M S REPORT].

4 A bout 97.3% o f the earth’s water is in the oceans and bodies of saline vvater O f the rem aining 2.7% , vvhich is íresh water, 2.1% is tied up in polar ice caps and in glaciers, leaving only 0.6% to circulate G round vvaters and

m oistưre constitute 22.4% o f the global fresh water, but tw o-thừds o f the ground w ater lies below 800 meters depth w hich is alm ost beyond exploitation Thus, for all purposes, hum ans must depend on the rem aining 0.2% íound in rivers and lakes T he am ount o f fresh water in lakes and rivers is only 0.009% and 0.0001% respectively, o f the world’s total water Even though the m ajcr rivers o f the vvorld have very large discharges, the

am ount o f w ater contained in these rivers at any given time is very sm all For exam ple, if all the w ater o f all rivers in the world could be pooled together at any given time, the resulting lake would still be sm aller than Lake

Ontario - a lake betvveen the northeastern United States and South Canada See N c Thanh & D M Tam, Waỉer System s a nd the E nvironm ent, in EN V IRO N M EN TA LLY SOƯ ND V/ATER M A N A G E M E N T 1,4 (N c Thanh 8c Asit K Bisvvas, eds., 1990).

5 See W C D REPORT, supra note 3, at 7 (stating thLl a nation can be íresh water sư essed as a result o f uneven

vvater disuibution and lim ited access).

6 See qenerally Niveen Tadros, Shrinkỉng \Vater Resources: The N ational Security Issues o f this C entury, 17 J.

7 W EHAB W orking Group, A Framework o f Action on v/ater and Sanitation, A W orking Paper prepared for the

W SSD, Johannesburg, South Africa, Aug 2002.

only incidentally have environmental or sustainability concerns served.8 Only for the last few decades have efforts been brewed for conceptual chanses: finding a new way o f manaơịnơ and regulating freshwater to ensure its longer use and to make it cleaner As the tvventieth century approached its end, intemational \vater law vvitnessed two important events: the

approval of the Watercourses Convention9 and the adjudication of the Gábcikõvo-Nàgymaros

dispute by the International Court of Justice (“ICJ”).10 While the Convcntion - thc fưst ever codiíĩcation of intemational vvater law - continues to reílect the traditional principles of equitable and reasonable utilization and the non-significant harm, it is well understood among the draíters “that the classic paradigms of the prohibition to cause harm and that of equitable utilization are inadequate alone to meet the environm,ental challenges in point.” 11 It remains true that, sustainable utilization mentioned elsewhere in, and the spirit of balancins water use and protection that permeates, the Convention, "[make] it clear that the imperatives of conservation and environmental protection must be integrated with the pattem of economic exploitation of intemationaỉ watercourses for the purposes of equitable use.” 12 As the ICJ's judgment in the case mentioned "goes far towards modemizing the older customary lavv along the lines indicated by the 1997 UN C onvention "13 thesc two mutually supportive legal events clearly establish the firm íoundation for the developmcnt of intcrnational vvatcr law in the twenty-fưst century

Speciĩic water issues are not handled globally; they are settled at thc b a s in level.14 Perhaps for this reason, the Watercourses Convention is not intended to be more than a framework

\vhich States may use as guidance in designing their own aưangements at the basin level.15 With -all the -persuasive reasoning of the imperative to balance development and environmental protection, the ICJ in the end decided that the parties in dispute should fĩnd thèir own solutions.J6 It would seem that at this stage and in the íòreseeable íủture, the

e x istin g regional w a te r treaties will c o n tin u e to g o v e rn w a te r relationships a m o n o States

sharing water bodies The Agreement concluded by the four lovver riparian states of the Mekong river17- which are all signatories of the Convention - is one of these representative treaties While taking into account the modem ideas of water use, protection and conservation,

8 PA TR iC IA BIRN IE & ALAN BOYLE, IN TERN A TIO N A L LAW AND TH E ENVIRONM ENT (2"d ed.)

298-9 (2002) O f the 214 large river basins in the world, 155 are shared by two countries, 36 by three countries; and currently, these river systems are home to approxim ately 40% o f the w orld’s population (two-thirds o f this 40%

live in developing countries) See Christopher L K ukk & David A Deese, A t the Wciter’s E dge: Regional Con/ĩỉct and Cooperation Over Fresh Watery 1 ƯCLA J In t’l L & For Aff 21, 33 (1996).

9 United N ations C onvention on the Law o f the Non-N avigational Uses o f International W atercourses, M ay 21,

1997, 36 ILM 700 (1997) [hereinaíter 1997 W atercourses Convention].

10 Case concem ing G abcikovo-N agym aro*Project (H ungary/Slovakia) 1997 ICJ 7.

11 ATTILA TA N Z I & M AURIZIO ARCARI, TH E UNITED NATIONS CONVENTION ON T H E LAW OF

IN TER N A TIO N A L W ATERCOURSES 19 (2001).

12 Id at 115.

13 Alan Boyle Sc David Freestone, Introduction, in IN TERN A TIO N A L LAW AND SU STA IN A BLE

D EV ELO PM EN T 1, 6 (Alan Boyle & David Freestone, eds 1999).

14 See Janusz K indler, Plannỉng and D ecision-M aking Framework, in Thanh & Bisvvas, supra note 4, 59 at 62

(indicating that there could be no global water m anagem ent; this is the m atter o f each basin or geographical area).

See details in C hapter Three, Part I.

16 Ca se concem ing G abcikovo-Nagym aros Project (Hungary/Slovakia) 1997 ICJ 7, para 155 (holding inter alia

that H ungary and Slovakia must negctiate in good íaith in the lighí of the prevailing situaiion, and m ust take all necessary m easures to ensure the achievem ent o f the objectives o f the 1977 Treatỵ, in accordance with such modalities as they may agree upon).

17 A greem ent on the Cooperation for the Sustainablô D evelopm ent of the M ekong River Basin, Apr 5, 1995,

L aos-C am bodia-Thailand-V ietnam , 34 ILM 864 (1995).

and management enshrined in the International Lavv Commission (“ILC”) Draft Articles, the Agreement designs a speciíic way of sustainable utilization of Mekong waters Looming conAicts of national interests, increasing demands of Mekong water, and the vvorsening environment in this part of the world, are all the issues that have to be carefully taken into account in Mekong cooperation In such a context, the Convention itselí and the H unsary- Slovakian lesson of the Danube dispute vvill ưndoubtediy be of great interest for the Mekong countries in implementing their cooperation in the manner \vhich both ensures the sustainable development of the river, and prevents potential disputes.

Vietnam is the lowermost riparian country to the Mekong river This geographical location and the fact that more than half of its water is contributed from outside sources18 make it imperative that Vietnam attach utmost importance to intemational cooperation on exploiting and protecting its shared waters To this end, Vietnam is about to become a party to the Convention, and cuưerìtly participates in the 1995 Mekong Agreement With the increasing demands of \vater for developmentaỉ purposes, Vietnam has also to face the problems of water shortage and pollution Designing and implementine a lcgal framcwork for sustainable development of vvaier resources in Vietnam, therefore, is both the requirement to fu 1 fĩ 11 Vietnam’s intemạtional obligations, and its intemai imperative

This dissertation undertakes the study of sustainable development of vvater resources It begins with the intemational arrangements, goes through the regional cooperation on the Mekong, and ends with the national vvater and water-related legislation in Vietnam The topic

•chosen is novel in four respects First, in light of the latest developments in international vvater law, it suggests a way of understanding and a p p l y i n ơ the complex and controversial concept of sustainable development in intemational waters Second, it presents a speciíĩc interpretation of the 1995 Mekong Agreement with respect to the sustainable development of Mekong water, and suggests that the concept can be materialized within the present cooperative arrangement Third, it pictures the framework for sustainable development of vvater resources in Vietnam in a critical manner, and suggests solutions for the existing problems Finally, arising indirectly from the above three points is the overall theme that sustainable development of water resources requires the harmonious actions at all the intemational, regional and national, levels While some related points might have been touched upon elsewhere in legal literature, none of the works knovvn to the author of this dissertation has comprehensively and systematically dealt with all the said issues

The dissertation seeks to accomplish four aims First, it finds out if the traditional intemational law concepts and principles are in a position to-address the newly emerging issues of water use and protection Second, it analyzes the CSD as it is applied to intemational water resources This concept addresses a number of newly emerging problems which the trad.tional water law concepts and principles are not able to handle While not having become

a hard legal principle in intemational water law, the CSD can be used as a guiding concept for handling speciíĩc water issues and law making and interpretation Third, on the basis of the devđopeđ arguments, it examines the general legal framework for sustainable development o f the Mekong river, and the role of the Mekong River Commission (“M RC”) in realizing such a frarrework Finally, the dissertation analyzes the Vietnamese legal framework for sustainable development of water resources It remains to be added, for the sake of clearly- sending the

18 Set cietails in Chapter Five.

message through, that international, regional, and national efforts are required for the understanding and materializing of the sustainable development of water resources.

Tovvards the stated end, the dissertation contains this general introduction, four major chapters and a short concluding chapter To set the stage for Chapter Three, Chaptcr Two highlights the trađitional intemational water law concepts and principles to suggest Lhat they are no longer in a position to fully address modem issues ot water use and protection Chaprer Three deals with the CSD as a guiding concept for settling speciíic water issues and law making and

interpretation The Gabcikovo-Nagymaros case and the 1997 Watercourses Convention will

be analyzed for this purpose Chapter Four examines the legal aspects of sustainable development of the Mekong and the role playcd by the MRC in the implemcntation o f this objective Chapter Five addresses the legal frame\vork for sustainable development of water resources in Vietnam, including its strengths and vveaknesses Chapter Six concludes the dissertation

Given the íầct that intemational water and environmental lavvs are in the process o f beino shaped, and the novel and debatable nature of''sustainable đevelopment"' - the main topic of this dissertation - three general qualiíĩcations regarding tíie use of tcrms shouid be made to avoid coníusion

First, the use o f “concepts” of territorial sovereignty, integrity, and community of interests in Chapter Two is based on the understanding that they have never been vvidely recognized in intemational vvater lavv; were applied only in the vvater relationship of a very limited number

o f states; and were, totallv or partly, abandoned by the very states originally advocating them The employment o f “ principles” for equitable and reasonable utilization, and non-signifĩcant' harm, as well as procedural principles, follows the approach taken by the ĩirst ever codiíication of intemational water law - the NVatercourses Convention.19

A second qualiíĩcation is related to the different terms denoting “sustainable development.” A ne\v legal phenomenon, a late comer, states’ obsession by the rigidity of the traditional way of making international norms, to name but a few, all have added up to a rather coníusing and diverse use in the general literature of the different tenns such as “concept,” “principle” or

“objective” of sustainable development It is far beyond the capacity, and moreover, not the main purpose, o f this dissertation to suggest a uniíied use o f terms Without dwelling upon the legal nature and any linguistic implications that may arise from picking One or another term, the dissertation takes the following approach Chapter Three generally employs “concept” to

be in line with that used by the ICJ in the leading case of Gabcikovo-Nagymaros dispute

“Principle” is refeưed to when citing the Separate Opinion of Judge Weeramantry because he speciĩically indicates this in such Opinion As far -as the Watercourses Convention is concemed, “ objective” is sometimes used in addition to “concept” in order to reílect the intention of the parties in achieving sustainable development The same approach is employed

in Chapter Four on the Mekong cooperative arrangements In Chapter Five, both “ objective” and “principle” are used because the related Vietnamese law clearly mentions them in substance Where it is not othenvise indicated, “concept,” ‘;principle,” and liobjective” are used interchangeably Whatever term is used, the overall philosophy behind remains that

19 See 1997 W atercourses Convention, supra note 9 (Part II m enúoning gerieral principles such as E quitable and

reasonable utilization and participation, O bligation not to cause significant harm, General obligation to cooperate,

and Regular exchange o f data and iníorm ation) For details on these principles see Chapter Two.

susiainable development is the integration of development and environmental protection; and that it is a guiding concepưprinciple for law makinơ and interpretation and for addressing speciíic \vater issues.

FinaIIy, except for speciĩic cases otherwise iudicatcd, the tcrms "environmental protcctiorv’

“environment,” and ■■protection/preservation,” as applicd to watcr rcsourccs, arc undcrstood in

a broad sense to cover not only protection of vvatcr from pollution, and maintcnancc of water’s ecological baiance, but also preservation of watcr for long tcrm-use The latter, as indicatcd in Chapters Three, Four, and Five, includc, am ong other thinĩs, the effccts and importaace of the integrated basin approach, attitude to dams, and economy o í usc

E VOLUTION OF IN TER N A T IO N A L VVATER LAW CO N CEPTS AND PRIiNCIPLES

I ENTRODUCTION

The present system of principles and norms of the Iaw regulating intemational water usage has been the result of a long process o f development Like legal principles in other areas, those in intemational water law are also the product of time and experience As time passes by, and experience grows, some of them may become outdated, and must be replaced by those Corning later in time Other laws, in turn, must change to adapt to new circumstances

At the outset, intemational water lavv was mainlv concerned with navigation Back in the nineteenth century, a number o f treaties and asreements with respect to navisational uses of international watercourses were concluded Ạt the tum of the tvventieth century, hovvever, vvith the increasing demand for water in industry and simultaneous heightencd use o f water for more than domestic, agricultural and navigational purposes, the first seeds of discord a m on ỉ riparian states were sovvn.1 The fact that demands for water.often exceed water supplies has brought about an urgent need o f íĩnding mutually accommodating vvays for allocatĩng waters

On the intemational plane, increased interaction and interdependency of nations have forced intemational water law to become more responsive to the conflicting interests o f riparian countries

An important factor triggering evolution o f intemational water lavv principles and norms has been the change in human understanding of, and attitude towards, management of intemational water basins Unilateral, piecemeal and arbitrary utilization of a river basin is no longer appropriate Natural hydrological processes o f a river basin, which exist independently

of artihcial poiitical írontiers and M a n ’s wishes demand concerted actions This is a process

in which the integrated approach to a river basin’s development has become the focal point Naturally, the system of principles and norms which has been íormulated to regulate water usage has also had to adapt itself to accommodate changes in the attitudes towards basin management

In the context of the aíoresaid, Chapter Two deals with the major concepts and principles in the law speciĩically regulating the non-navigational uses o f international waters The'chapter

is premised on the understanding that concuưently with the incr-aasing demands for water and the needs for its protection, these concepts and principles have gradually changed in both nature and scope In this process, outdated principles have been replaced; those surviving have obtained additional merits; and new ones have come into being By tracing both the quantitative and qualitative evolution o f these concepts and principles, the chapter seeks to explore: 1) how these concepts and principles have emerged, applied and changed to respond to- the fast developing nature o f international water issues; 2) vvhether those existing are in a position to meet the presently requừed comprehensive and integrated approach to water and water related resources management; and 3) what should be done to further the goal of

1 L TE C L A FF, T H E RIVER BASIN IN H IST O R Y AND LAW 113 (1967).

J o M oerm ond & E Shirley, A Survey o f the International La\v o f Rivers, 16 Den J Int’1 L & Policy

139, 139 (1987).

C h a p t e r T\ vo

integrateđ water management Chapter Tvvo vvill conclude that the traditional concepts and principles in international water law, regardless of having evolved and developcd so rauch over the time, are not in a position fully to meet the emerging demands of vvater management

in which both the “developing” and “sustaining” aspects of water must be takcn care of; and that a new approach is required In this connection, Chaptcr Two will serve as a starting point for Chapter Three on the sustainable development o f intcrnational vvater rcsourccs

Both substantive and procedural concepts and principles will be ađdrcssed Where possible,

an analysis o f how these concepts and principles are viewed from the perspective of economically less developed countries3 wili be presented

n THE EXTREME C ONCEPT OF A BSO LU TE TERRITO RIA L SOVEREIGNTY

1 Historical backgrouncls and nature

Under the concept o f absolute territorial sovercignty ("ATS"), a riparian State has thc right to unlimited uses of the part of a river ĩlovvir.g in the tcrritorv o f thof S t a t e , rcgíirdless of the consequences it may cause to other co-riparian states.4 The concept is othcrvvise known as the Harrnon Doctrine.5 In this section, these tvvo terms will be used interchangeably

As early as 1880, claims were being made in both the United States and Mexico over the diversion of the vvaters of the Rio Grande River,6 a boundary river between thc tvvo countries,

of which the United States is th ê upstream riparian* country.7 M exico objected that the then

3 An international river basin may be shared, am ong other riparian countries, by two developed countries

T hough being relatively at the same level, one o f these two coưntries may be econom ically less developed than the other A typical case of this nature is C anada and the United States with aim ost 5000 km o f boundary line where ẫarge sections are separated by rivers or shared waters To reílect this situation, C hapter Tw o, therefore, uses the term “econom ically less developed countries” instead of the term “developing countries” even though in the maj|0rity o f cases it is the latter that are referred to.

4 G abriel Eckstein, A pplication o f International W ater La\v to Transboundary G round\vater Resources, a n d the Sỉovak-H ungarian D ỉspute Over G abcỉkovo-N agym aros, 19 Suffold T ran sn at’1 L.Rev 67, 73 (1995) See also

M oerm ond & Shirley, supra note 2, at 140.

5 Cohem, for exam ple, regards the H arm on D octrine as the “colloquial nam e” o f the concept o f absolute territorial

sovereignty See J E Cohen, International L aw a n d W ater P olitics o f the E uphrates 24 J Int’l L & Policy, 503,

522

6 The R io G rande River - known in M exico as Rỉo B ravo del N orte - is one o f the longest rivers in the U nited

States, beginning at an elevation o f 3000 m eters in the Rocky M ountains o f C olorado, flow ing generally southw ard approxim ately 1200 km to the Ư S-M exico border at E1 Paso, T exas, and Ciudad Juarez, Chihuahua From there, it flows generally southeast íom iing the T exas-M exico border for approxim ately 2000 km until it reaches its m outh at the G ulf o f M exico near B row nsville, Texas M ajor U nited States cities located along the Rio G rande include A lbuquerque, N ew M exico; and E1 Paso, Laredo, and M cA llen, T exas M ajor M exican cities along Ithe Rio G rande are Juarez, C hihuahua; and N uevo Laredo, Reynosa, and M atam oros, Tam aulipas T he

river Ls recognized for its im portance as the m ajor w ater resource for the C hihuahua D esert region See

<http:/y\w /w cerc.usgs.gov/ừgrei/Irgrei.htrnl>

7 A lready in the second half o f the 19lh century, the U nited States faced several problem s with respect to boundiary w aters with both M exico and C anada W ith C anada, a cont/oversy relating to the Lake o f the W oods had been pending since 1888, and a long standing dispute concem ing the use o f the vvaters o f the St M ary and Milk R ivers required resolution In 1902, C anada protested aeainst a proposed U nited States diversion o f the waters, of the St Mary on the ground Lhat it w ould irỹure existins C anadian diversion \vorks In 1904, the U nited States protested a proposed C anadian diversion o f the M ilk River A serious disagreeinent also existed regarding the uste of Lake iMichigan vvaters by the City o f C hicago, causing a hazard to navigation to the whole system o f

diversion o f the Rio Grande in the upper part of the river, though vvholly vvithin the United States territory, adversely effected the risht of Mexico to enjoy the equal use of the river, and thus was contrary to the existing principles of interaational law The Mexican ciaim was referred by u s Secretary of State, acting on behalí of the President of the- United States in negotiations vvith Mexico, to u s Attomey General Judson Harmon for the latter’s opinion.s The focal point of the reíerence letter was concerned with the 'ieg al rights and obligations" of the two countries in the context o f u s taking water for imgation frorti the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundarv between the United States and Mexico.

Attomey General Harmon maintained that a sovereign State had unrestricted sovereignty with respect to that part o f a river that lay within its territory; and was free to divert and use it vvithout liability to a downstream State His opinion stated in relevant part:

The fưndamentai principle o f intem ational law is the absolute sovereignty ot' every nation, as against all others, within its ovvn territory No believer in the doctrine of natural servitude has cver suggcsted one vvhich would interfere with the erýoym ent by a nation within its ovvn territcry of whatever is nec^ssarv Co the developm ent o f its resọurces or the com fort o f its people.9

Under H armon’s view, both intemational law principles and the then existing treaty betvveen Mexico and the United States10 made no attempt to create or reserve to Mexico or her citizens any right or to impose on the United States or its citizens any restraints with respect to the use

of water for irrigation.11 In other words, his opinion argued for totai íreedom to use water of the river in the territory of the United States, no matter \vhat consequences such use vvould cause to Mexico

2 The concept in treaties and practice

The concept of ATS has been asserted, in One degree or another, by various countries It is noteworthy that these countries, though rather small in number, are scattered throughout almost every part of the world

ịa) United States - Mexico

As the “ country of origin,” the United States applied the concept on several occasions.12 In

the Great Lakes and w ater-ways extending to the Atlantic Ocean For details see, for example, c J CHACKO,

T H E IN TER N A TIO N A L JO IN T C O M M ISSIO N BETW EEN TH E UNITED STATES OF A M ERICA AND

T H E D O M IN IO N O F CA N A D A 77 (1932); M E W olfe, The Milk River: Deferred Water Policy Transitions in

an International Waterway, 32 Nat Res J 55, 55-76 (W ntr 1992); R w Johnson, The Columbia Basin, in

T H E LAW OF IN T E R N A T IO N A L D R A IN A G E BASINS 167, 186 (A H, G aưetson et al, e d s , 1967); and

G riffin, Legal A spects o fth e Use o f System s o f International Watersy s Doc N o l 18, 85 Congress, 2nd Sess 8-9,

16-20 (1958).

8 Harmon Opinion (O pinion o f u s A ttom ey G eneral Harmon, to the ƯS Secretary of State), Dec 13, 1895,

reproduceđ in IN T E R N A T IO N A L E N V IR O N M E N T A L LAW REPORTS (vol 1, app 1) 543 (C airo A R

Robb, ed., 1999).

9 lả át 548.

10Treaty o f Peace, Friendship, Limits and Settlem cnt, Feb 2, 1848, amended Mar 10, 1848), U nited States-

Me.xico, m TH E CO N SO LID A TED TR E A T Y SER1ES, vol 102, at 29 (Parry, c , ed„ 1969).

1 Harmon Opinion, supra note 8, at 546.

12 In the Rio G rande case, see F J BERBER, R IV ER S IN IN TERN A TIO N A L LAW 110 (1959); in the Chicago

relations vvith Mexico, the concept vvas contained in the Ri0 Grande Convention of 1906.13 Article V of the said Convention reserved to the United States the right to divert the waters of the Rio Grande within the United States regardless of possible losses incurred to Mexico.

Subsequently, hovvever, in its rclations with Mexico, [he United States took ẩ more flexible approach, and, in the Treaty concluded betvveen the tvvo countries in 1944 14 officially abandoned the Harmon Doctrine, therebỵ ending the United States — Mexico dispute over aliocation of waters of the Rio Grande.l:> Under the Treaty, the International Boundary and VVater Commission (;'IBWC”) is created on the basis of the International Boundary Commission (UIBC”) established in 1889 The Treaty vests in the IBWC a number of íunctions and povvers relating to the proportionatc distribution of watcrs of thc thrcc rivcr systems shared by the United States and Mexico A notable provision, which abandoned the Harmon Doctrine by implication, is contained in Article 9 of the Treaty It reads in part as follows:

[N]o such diversion, not existing on the date this Treaty enters into íorcc, shall bc pcrm itted in either country, until the Section o f the Com m ission in vvhose country the diversion or use is proposed has made a fmding íhat ỉhe vvater necessary for such divciMúii or ưse is available tro nì the share o f tnat country, unless the Corrưnission has agreed to a greater diversion or use

It took the United States 40 years, as an upstream State, to come to this agreeđ position vvith a dovvnstream State Although subsequent implementation of the 1944 Treaty has not gone vvithout diffĩculties, the fact that the United States relinquished the Harmon Doctrine in a treaty vvith the State with regard to which the United States first declared the doctrine, is o f considerable significance: the doctrine thereíore no lonser has any basis to exist in either treaty or practice

(b) United States - Canada

The Harmon Doctrine was also a goveming factor in Canada - United States relations with respect to their shared waters - and tumed out to be a rather interesting storv The doctrine is

reílected in Article n o f the 1909 Boundary Waters Treaty between the two countries.16

Article n can be divided into two subsections Subsection one reserves to each of the parties

the exclusive jurisdiction and control over the use and diversion, w hether temporary or perm anent, o f all waters on its side of the line w hich in their naturãl channels would flow across the boundary or into

D iversion case, see J SIM SARIAN, T H E D IV ERSIO N OF INTERNATIONAL RIVERS 16-18, 26-34, 38

(1939); in the Colorado salinitý, J G LAM M ERS, POLLƯTION OF IN TER N A TIO N A L

W ATERCOƯ RSES, A SEARCH FOR SƯ B STA N TIV E RULES AND PRINCIPLES OF LAW 261 (1984).

13 Convention Concem ing the Equitable D istribution o f the W aters o f the Rio Grande, May 21, 1906, U nited

States-M exico, in THE CO N SO LID A TED T R E A T Y SERIES, voi 201, at 182 (Pan7, c , ed., 1980) [hereinafter 1906 Rio Grande Convention].

14 Treaty Concem ing the ư tilization o f ứie W aters o f the Colorado and Tijuana Rivers and of the Rio Grande, Feb 3, 1944, United States-M exico, 3 ƯNTS 313 [hereinaíter 1944 Tijuana & Colorado Rivers Treaty].

15 Clive Lipchin, Water Scarciry, International Securỉty and Resource Dìsputes - The Case o f [he Tỉgrỉs - Euphrcỉtes and Jordan Basin River System, <http://w w w -personal.um ich.edu/w ddrake/lipchin.htm l> visited May

4, 2000.

lóTreaty Relating to Boundary VVaters, and Q uestions Arising bettveen the United States and Canada, Jan 11,

1909, Great Britain.-United States, 36 Stat 2488, TS 548 [hereinaũer 1909 B oandary NVaters Treaty].

boundary waters.

Subsection two, nevertheless, states that

it is agreed that any interference with or diversion from their channcl of such vvaters on either side o f the boundary, shall give right to the same right and enútle the injưred parties to the sam e legal rem edies

as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or 10 cases e.xpressly covered by special aareem ent betw een the parties thereto.

While subsection One clearly reflects the iníluence of the Harmon Doctrine,17 subsection two, hovvcver, considerably mitigates the Doctrine in tone to the point vvherc subsection two can be said to neutra[ize the effect of subsection One Canadian and American negotiators o f the Treaty would recall that section two, to a certain extent, was a concession to the Canadian fear about uncertainties conceming the use of shared waters, in the event that One o f the two parties would take undue advantage of section One.13 It is apparent that even back in 1909, the Harmon Doctrine, at least in the Canada - United States water relationships, was not applied

in its ful! strength The history of water relationships between these tvvo ccuntries indicates that the United States has never applied the doctrine in practice;19 and even vvithin the United States, the doctrine was not accepted.20

(c) Oíher states

The concept of ATS over river vvaters was also refiected, thoưgh in a scattered manner, in treaties concluded elsevvhere in the vvorld Countxies that referred to the concept were Austria,21 Chile,22 Federal Republic of Germany,23 and Ethiopia.24 A notable case is India2:> in

17 The doctrine was rather troưblesom e to Canada Shortly after the Boundary W aters T reaty was signed, Sir

W ilfrid Laurier, the then Prim e M inister o f Canada admitted: ‘i f I were to follow my own inclinations at the present time, we should decline the ưeaty Article II has alvvays seemed to me a very serious source o f ư ouble,

but in view o f the other concessions, I have been disposed to accept.” GIBBONS PAPERS (vol 1), in Public

U nited States will have a perfect right to divert the water yet that diversion must be subject to the right o f the person lower dow n the stream , whether in the U nited States or Canada, to the same right o f action against the upper riparian proprietor as if both people were subject of the same coưntry.” C anadian H ouse o f Com m ons

D ebate, 6 D ecem ber 1910, col 871.

19 For a thorough account o f the United States-C anada boundary water relationships see Le Thanh Long, The Canada- U nited States International Joint Commission: Possible Lessons fo r an ỉnstitutional M echanism in the Lower Mekong River B asin, LL.M thesis, available at the Library o f the Ư niversity o f Calgary Law School

(Calgary, Canada).

20 In a debate on the 1944 T ijuana & C olorado Rivers Treaty (supra note 14) before the Senate C om m ittee on

Foreign relations in 1944, the vievv that was based on the Harm on Doctrine that M exico was not entitled to water from the Rio G rande was vigorously contested by an assistant to the Legal A dvisor ot the D epartm ent o f State

See D p CTCONNELL, IN T E R N A T IO N A L LAW (2nd ed., voi 1) 559-60 (1970).

21 In successive rivers, see J Lipper, Equitable Utilỉiation, in TH E LAW OF IN TER N A TIO N A L D R A IN A G E BASINS 15, 21 (A H G arretson et al, eds., 1967).

22 In the Rio M auri case, íe e H SM ITH , TH E EC O N O M IC USES OF IN TER N A TIO N A L R1VERS 69-70

its vvater relationsrĩips with Pakistan26 and Bangladesh.27 A few scholars, past and present have supported the concept.28

Even recently, in 1997, during the adoption of the 1997 Watercourses Convention by the United Nations General Assembly (“UNGA”), countries which voted against its adoption, pointed out that the Convention failed to affirm the principle OÊ territorial sovereignty of a watercourse State; and that a planned measure requesting any deơree o íc o n s e n t of other vvatercourse states concemed wouId go against this principle.29 Though it is apparent that

"territorial sovereignty,, is different from “absolute territorial sovereiơnty,” the mere demand that the former be affirmed as a clear principle in the 1997 Convention does not seem to be in line \vith the requirements of modem uses and practices in rcspcct of international watercourses

It is also worthy of note that where there is no cooperative aưangement on a vvater basin, and

as a consequence, riparian states develop water use plans unilaterally, the concept seems to linger A typical case of this nature is the Euphrates-Tigris basin30 shared by Turkey, Syria and Iraq In 1966, Syria began, and in 1973 completed, the construction of the Tabqa High Dam

on the Euphrates, which was vigorously opposed by Iraq, threatening even to go to a war with Syria in 1975.31 Turkey began to build the Keban Dam on the- Euphrates in 1966 and completed construction in 1974; and Syria also launched a publicity campaign against

This was the reasoning o f Germ any at the conclasion of the Treaty Concerning the Course o f the Common Prontier, the Boundary W aters, Real Estate Property Situated Near the Frontier, Traffic Crossing the Frontier on Land and via Inland W aters, and O ther Frontier Questions, Apr 8, 1960, FRG-Netherlands, UN Doc

St/LEG/SER B/12, Treaty No 212 See also J BRUHACS, T H E LAW OF N O N -N A V IG A TIO N A L ƯSES OF

INTERNATIONAL V/ATERCOƯRSES 44 (1993).

24 In relation to the Blue Nile in 1957 and 1978, B A Godana, AFRICA 'S SHARED W ATER RESOURCES: LEGAL AND IN STITU TIO N A L ASPECTS OF TH E NILE, N IG ER AND SEN EG A L RIVER SYSTEM S 35-36 (1985).

25 In :he ca se o f Indus w ater dispute, see s M Sikri, “ Com m ents on the First Report of the International

Committee,” in ILA, Report o f the Forty-seventh Conference (Duvrobnik 1966) at 13-14.

26 See Treaty Regarding the ư s e o f W aters o f the Indus, Sep 19, 1960, India-Pakistan, 419 ƯNTS 126, art 4, para.14 [hereinaíter 1960 Indus W aters Treaty].

27 See Agreement on Sharing of the G anges’ W aters, Nov 5, 1977, Bangladesh-India, ILM 103 (1978), pmbl

[h ereh aíter 1977 Ganges’ W aters Agreem ent].

28 See for exam ple, Getachew A beư a, There ỉs Neỉíher Cusíomary International Law Nor a Treaty that Entitles

w alta/:onfĩict/articles/article837.htm l> visited M ay 10, 2000 T he author, inter alia, interestingly argues that the

Harmon D octrine is just a m isnom er; and that what Harmon said is simply a restatem ent of the principle of territonal sovereignty in general, including persons and'things located in the territory of a State In the author’s view, vvith respect to each segm ent o f a successive international river, within the sovereign teưitory o f a State, the territcrial State has necessarily absolute and exclusive sovereignty on that segment o f the river The right o f the low erriparian State depends on the com ity of, and the bilateral agreem ent with, the upper riparian State.

29 See speeches by rcprcsentatives o f T arkey and China in the United Nations, ƯN GAOR, 51st Sess., 99th

Plenaiy M eeting, UN Doc A /51/PV 99 (1997) at 4-5 & 6.

30 T h eR iv er Euphrates (2735 km) -is in Southvvest Asia, flowing from East Turkey through Syria and Iraq, joining the river Tigris to form the river Shatt-al-Arab (Southeast Iraq) near the Persian Gulf T he Tigris river flows from

Southcast Turkey through Iraq, then jo in s the Euphrates to form Shatt-al-Arab See RANDOM HOƯSE

W EBSTER’S COLLEGE D IC TIO N A R Y 461 & 1395 (1991)

31 Ibrứiim Kaya, The Euphrates-Tỉgrỉs Basin: An Overvỉe\v and O pportunities fo r Cooperatiorỉ under

ỉn tern itio n a l La\v, <http://w w w ag.arizona.edu/O A LS/A LN /aln44/kaya.htm l> visited M ay 9, 2000, at 3.

Botswana/Namibia case, a separate opinion by Jưdge Koojimans once more coníĩrmed the

rejection of the concept.36

Second, the actual application of the concept has been rather ílexible as vve have seen in the case of the United States in its riparian relations with both Mexico and Canada Elsevvhere, the concept is scattered, fractional, and limited to a few states.37 Even where it is claimed to exist, the concept has often been used to make a unilateral demanđ claiming actual interests related to the various uses of a vvatercourse.38 Often, it has been concealed by an abstract term,

on the one hand, or used as a negotiations tactic, on the Other.39 The concept’s practical enforcement has not been free from uncertainty or, even more, intentional - as opposed to accidental - ambiguity.40

Third, not surprisingly, the only states clinging to the concept are some upper riparian states

This is true in all cases regardless o f whether the riparian State in question is a less developed

or more economically advanced State In othcr vvorcls, the level of economic development of a

State has nothing to do with the state’s claim of the concept of ATS Application o f the

c o n c e p t does not d e p e n d o n the e c o n o m ic strength or d e v e lo p m e n t o f a State; b u t rathe r, on

the geographical location of the State The only accurate determining factor as to vvhether a State will apply the concept of ATS is whether it is upstream or downstream as opposed to

w h e t h e r it is a d e v e lo p e d o r a d e v e lo p in g State

32 Id.

33 See 0 ’CƠNNELL, supra note 20, at 557.

34 S e ư y for.example, SM ITH , supra note 22; Van Alstyne, International Law and Interstate River D isputes, 48

Calif L.R (1960); CHEN, T H E N O N -N A V IG A TIO N A L USES O F INTERNATIONAL RIVERS (1965); SIR

R O B ER T JENNINGS & SIR ARTHƯ R W A TTS, O PPEN H EIM S’S INTERNATIONAL LAW (9th ed., voi I)

584-5 (1992); and BRUHACS, supra note 23, at 43 et seq.

35 Case Concem ing K asikili/Sedudu Island (Botsvvana/Namibia), Dec 13, 1999, 39 ILM 310.

36 Reíerring to art 5 o f the U nited Nations Convention on the Law o f the Non-Navigational ư ses o f International

W atercourses, M ay 21, 1997, 36 ILM 700 (1997) [hereinafter 1997 W atercourses Convention], and art IV o f the

H elsinki Rules on the Uses o f International Rivers, Aug 20, 1966, 52 ILM 484 (1967) [hereinaíter 1966 Helsịnki Rules], Judge Koojim ans was o f the view that both Instruments had clearly rejected the doctrine; and that the

doctrine had never had a vvide following among states See Case 'ĩ!onceming K asikili/Sedudu Island

(Botsvvana/Namibia) Dec 13, 1999, 39 ILM 310 (Separate Opinion o f Judge Koojimans).

37 BRƯHACS, supra note 23, at 44.

38 lci.

39 ỉd.

40 /c/ at 45.

Fourth, even though the concept has not been recognized in international law and was seldom acted upon,41 there is still a practical difficulty associated with it nowadays That is, concem for a nation’s sovereignty is often a major obstacle in achieving integrated development o f intemational rivers.42 It would seem that this tendency even lingers tociay, and elsewhere continues to affect the actual process of plannina and carrving out water coopcration projects

Finally, because of its restrictive nature, the concept is far from suitable compared to the modem approach of treating an intemational river basin as the common propertv of countries sharing it It has, however, given birth to an antithetical concept that will be addressed in the following part

m THE CONCEPT OF ABSOLUTE TERRITORIAL INTEGRITY

1 Background and implications

The concept of absolute territorial integrity (“ATI”') has come into being in response to that nf ATS.43 In Sharp contrast to the Iatter, the íormer is a tool used by lower riparian countries with

res p e c t to co n tro l a n d u s e of the w a te rs 44 In a nutshell, che c o n c e p t suggests that e v e ry State

must allow rivers to flow their natural course; and an upstream country may not divert the water, or interrupt, or artificially increase or diminish, its flow Since respect of the natural flow of a river is paramount, alteration of such flo\v im plies a violation of the integrity o f a country’s terrirory.45 In effect, lower riparian countries have a general right to veto wacer rights of upper riparian nations.46

Unlike the concept o f ATS, the ATI concept has not been much written aboưt in water law literature Those who have touched upon the concept have rendered very littỉe, if any, support 47 In the intemational community, the concept has never been embraced diplomatically nor asserted in any adjudication.48

J1 LAM M ERS, supra note 12, at 361.

42 R H Clark, “Issues and Constraints Affecting the Development and Protection o f Shared W ater Resources” in Departm ent of Technical Cooperation for Development, (UN Secretariat), Institutional Issues in the

M anagem ent o f ỉnternational River Basins: Financial and Contractual Considerations - Natural Water Series

No 17 (New York, 1987), at 2 [hereinafter Water Series No 17].

43 BRUHACS, sưpra note 23, at 43.

44 0 ’C 0N N E L L , supra note 20, at 557.

45 UN D epartm ent of T echnicai Cooperation for Development, (UN Secretariat), “Legal and Institutional A spects

o f River Basin D evelopm ent” in UN D epartm ent o f Technical C ooperation for D eveìopm ent, Natural Resources Water Series No 20 - R iver and Lake Basirt D evelopm ent - Proceedings o f the UN Incerregional M eetings on River and Lake Basin D evelopm ent with Em phasis on the Aýrica Region, Addis Ababa, Ethiopia Oct 10-15,

1988 (New York: United N ations, 1990), at 137 [hereinafter Water Series No 2 0 \

46 Eckstein, supra note 4, at 74.

47 M oerm ond & Shirley, supra note 2, at 143.

48 Donald J Chenevert, Application o f the Draft Articles on ìhe Non~-Navigaiional Uses o f Itưernatioiial

\Vaiercourses to [he W ater Dispuies Involving the Nile River and che Jordan River, 6 Emory Int’l L Rev 495,

5 0 4 (1 9 9 2 ).

2 Practital uses and claims

In spite of its unĩaimess, some lower riparian countries, however, have tried to enforce the concept of ATI These countries, though very few in number, are for example like Egypt vvhich claimed the entire natural flow of the Nile in several lesal arrangements (this wíll be addressed in detail below) and in claims made durins the meeting of the Nile Commissĩon in

19 2 5,49 and the Arab countries which argued for a requirement of prior consent in the Jordan River dispute.50

A typical case where the concept of ATI reached its zenith is the Nile River case Egypt the

lovvermost riparian country of the Nile, for vvhich the importance of the river is aut Niliis, aut nihil (either the Nile or nothing), has íòught at any cost, come hell or high water, to keep the

concept alive Understandably, Egyptian civilization.- One of the earliest civilizations in the vvorld - is inseparable from the lower basin and delta of the Nile Needless to say the Nile has been, and is, o f life-and-death importance for Egypt, a desert country, which would not and cannot exist vvithout the great river The river, as probably any other river basin, is perhaps thẹ archerype o f the usual historical pattem of intemational river basin development vvhere earlv and signiĩicant development took place in the delta and lower basin, and thousands of years later, dicỉ development in the upper basin.51

It is no exaggeration to State that the history of the legal regime of the Nile basin is the history

of development of the concept of ATI claimed by Egvpt Already in 1891, in the Protocol signecl between the United Kingdom and Italy - then acting respectively for lower and upper basin countries in the Nile basin - the Italian Government undertook not to construct any work that might substantially modify the flow of the Nile.52 The spirit of this provision - the concept of ATI that the flow of the Nile in its lovver reaches was not to be affected - was subsequently maintained in the Treaty between the United Kingdom and Ethiopia o f 1902,53 the Treaty between the United Kingdom, France and Italy of 1906,54 and several other diplomatic instruments.55

The concept reached its zenith in the 1929 Nile Water'Agreement.56 Paragraph 4 (ii) of the

49 See Lipper, supra note 21, at 18.

50 LAMMERS, supra note 12, at 305-7 For a detailed analysis o f vvater disputes in the Jordan Basin see s

Libiszewslà, W ater D isputes in the Jordan Basin Regiort and their Role in the Resolution o f the A rab-lsraelì

http:/ w w w fsk.ethz.ch/encop/13enl3-ch0.htm visited M ay 25, 2000.

51 A H G arretson, The N ile Basin, in THE LAW OF IN TER N A TIO N A L DRAINAGE BASINS 256, 264Õ (A.

H Garretson et al, eds., 1967).

52 Protocol for D em arcation o f Respective Spheres o f Iníluence o f the United Kingdom and Italy in Eastern

Aírica, Apr 15, 1891, U nited Kingdom-Italy, art 3, in T H E CONSO LID A TED TREATY SERIES, vol 175, at

67 (Parry, c , ed., 1978, F rench text).

53Treaty Relative to the Frontiers between the Anglo - Egyptian Sudan, Ethiopia and Eritrea, M ay 15, 1902,

United K in g d o m -E th io p ia- Italy, in TH E CONSOLIDATED TR EA TY SERIES, vol 191, at 180 (Parry, c , ed.,

1980).

54 Treaty betvveen the U nited Kinơdom, France, and Italy, Dec 13, 1906, art IV, GBTS, No 1 (1907).

bS See for exam ple, E xchange of Notes betvveen Italy and the United Kingdom of Dec 14-20, 1925, 50 LNTS

282 (1925).

56 Exchange of N otes in R egard to the Use of Nile W aters for Irri^ation Purposes, May 7, 1929, G reat Britain - Egypt, 93 LNTS 43.

save vvith the previous agreement o f the Egyptian Governm ent, no irrigation or povver works or measures are to be consưucted or taken on the River Nile and its branches, or on the lakes from vvhich it flows, so far as all these are in the Sudan or in countries under British adm inisưation, which would, in such a manner as to entail any prejudice to the interests of Eeypt, eiíher reduce the quantity of w ater arriving in E sypt or modify the date of its arrival or to lower its le.vel.

In affect, Egypt was given the right to veto any upstream development including hydro- electric as well as irrigation works on the Nile The 1929 Agreement with its apparent unilateral characteristic, however, was later replaced by the milder ạnd more reasonable 1959 Nile Waters Agreement,57 where the water of the Nile is allocated rathcr equitably among Nile River Basin countries.58

While having been reílected in a few intemational legal Instruments, the concept of ATI is

rejected in case law In the Lake Lanoiix case,59 France proposed to divert some vvater from

Lake Lanoux into another river basin to increase the head of vvater for a hydroelectric power plant.60 Even after France undertook to rctum an equivalent volume of watcr into the river, Spain was still of the view that the works could only be lawfully carried out with Spain’s consent The case was brought to an Arbitral Tribunal The Tribunal held that "the rule that States may utilize the hydraulic power of intemational watercourses only on condition o f a prior agreement between the interested states cannot be established as a custom, even less as a general principle of law.”61

3 Conclusions

Like the concept of ATS, the concept of ATI, except in occasional cases, failed to reach actual enforcement It remained a mere concept, not a customary rule, which during more than 100 years, has occasionally, and unilaterally been claimed by certain riparian countries It has proven unable to cope with the problems of sharing international waters On the contrary, by supporting extreme position opposing the concept of ATS, it tends to fuel disputes in intemational basins rather than to settle them;62 and as a result, does not promote intemational hannony and peace

The concept is hard to effect It does not agree with the equity principles that havẹ long been considered to constitute a part of international law, and as such have often been applied by intemational tribunals A Sharp division between law and equity should find no place in

A greement stated that

57 Se: generally Agreem ent for the Full U tilization o f the Nile W aters, Nov 8, 1959, UAR - Sudan, 453 UNTS

51.

58 Dr Seyed M oham m ed Hosni, in his discussion of the Nile Resim e, is o f the view that the 1959 Agreem ent coníĩrms the idea that the parties drifted further towards the concept of equitable shares In the Agreement, the concipts of' established rights and prior appropriation [a form of the concept o f territorial integrity] found little recoí;nition, perhaps no more than an elem ent to be taken into account in determ ining what should be an

equitible share i'his view o f Dr s M Hosni is quoted in Garretson, Síipra note 51, at 289.

59 Lace Lanoux A rbitration (France V Spain), (1957) 24 ILR 101 Lake Lanou.x is in France but is also the soưrce

of the Carol River flowing into Spain.

60 JEMNINGS & V/ATTS, supra note 34, at 585.

61 Lace Lanoux A rbilration, (France V Spain), (1957) 24 ILR 101 at 130.

62 LiHszewski, supra note 50.

intemational jurisprudence.63 Due to its myopic nature, the concept has no place in the

m odem approach towards intemational river basins as common property shared by riparian nations

rv THE NON-SIGNEFICANT HARM PRINCIPLE

a c a u se of a c tion d e s ig n e d to p ro h ib it or rectify u n rea s o n a b le interíerence w ith the use a nd

erýoyment of property rights.67

Under English corrimon law, there are tvvo types of nuisance: public nuisance68 and private

nuisance.69 At early common law, sic utere tuo provided for strict liability for any interference vvith property use - private nuisance.70 Sic ut e r e tuo, hovvever, became a substantial obstacle

to economic development, especially in the era of rapid' population growth and industria!ization.71 Courts therefore be°an to give increasing effect to the property ovvners right to beneĩicial use that was once secondary to the right against interíerence.72

2 The principle in international law and international \vater Ia\v

How the common law concept of sỉc utere tuo became a customary rule in intemational law

known as NSHP can probably be explained by the proposition that principles of law recognized by civilized nations can be a source of intemational law 73 Consensus has been reached that NSHP obligates states not to use or allovv the use of their territory for acts

63 Diversion o f W ater from the River M euse (Netherlands V Belgium) 1937 PCU (Ser A/B) No 70 (June 28).

64 BLACK’S LAW D IC TIO N A R Y 1690 (1999).

65 S.M Schvvebel, Thỉrd R eport on the Non-N avỉgational Uses o f International Waters, UN Doc A/CN 4/348,

para 116, footnote 229.

66 A lfred’s C ase (1611) rlc ite d from E Brubaker, Property Rights in the Deíense of Nature (1995),

<http://w w w nextcity.com /Envừonm entProbe/pridon/index.htm l>

67 R.J Rychlak, Common Law Remedies f o r Environm ental Wrong: the Role o f Private Nuisance, 59 M iss L.J

657 (1989); E Rabin, N uỉsance Law: Rethỉnking Fundam ental Assumptỉonsy 63 Va L Rev 1299 (1977).

68 A public nuisance is an unreasonable interíerence with a right com m on to the general public (ưs Restatem ent [Second] o /T o r ts , para 8 2 1B, 1977), and includes such activities or conditions as obstruction of or dam age to

highways, m aintenance o f a house of prostitution, deteriorated buildings, air or water pollution or noise For more

details see M p Barret, Jr., Chapter 14: The Theory o f N uỉsance as an Im pedỉm ent to Mining Operatỉons,

<h ttp ://w w w em lf.o rg y b o o k s/V o ll4 /ch l4 v l4 h tm >

69 A private nuisance is an unreasonable interíerence with another’s interest in the private use and enjoym ent ơf

land, ư s R estatem ent [Secotĩd] o fT o rís, para 821D, 1977.

70 J L Levvin, The Silent Revolution in West Virginia 's Law o f N uỉsance, 92,W Va.L.Rev 235, 244 (1990).

71 See Barret, supra note 68.

Lewin, supra note 70, at 251.

73 See Statute o f the International Court o f Jus.tice, June 26, 1945, 59 Stat 1031, TS No 993, 3, art 3 8 (l)(c).

cơntrary to the rights of other states.74 This is so because the maxim "is applicable to relations

o f States not less than those o f in d iv id u a ls ”75 In Sharp contrast tọ the c o n c e p t o f ATS th e

N;SHP is often regarded as being close to intemational neighborhood law that limits the use of

s o v e re ig n ty ; 6 a nd has e sta blishe d itself in both international ỉegal Instrum ents and j u d ic ia l

decisions

O f the major multilateral conventions enshrining the NSHP, important are: the 1923 Geneva Cơnvention on Hydraulic Power;'7 the 1974 Nordic Environmental Protection Convention;78 the 1979 Convention on Long-Range Transboundary Air Pollution;79 the 1989 Convention on the Control of Transboundáry Movements of Hazardous Wastes and their Disposal;80 and the

1997 Watercourses Convention.81 The numeroưs bilateral treaties and agreements providing for the principle can roughly be divided into four ơroups: 1) those containing prohibitions or restrictions affecting water drainage;82 2) those containing prohibitions and restrictions on wiíthdrawaỉ of water;83 3) those conceming prohibitions and/or restrictions on the changing o f vvater ievel;84 and 4) those conceming general provisions against causing damage,85 especially

74 S ee, for exam ple, Gretta G oldenm an, Adapting to Climate Change: A Sỉudy o f lìUernaiional Rivers a nd their

L egal Arrangem enís 17 Ecology* L.Q 741, 779 (1990); M oermond & Shirley, supra note 2, at 140; and D

H U N TER et al, INTERN A TIO N A L ENVIROiNMENTAL LAW AND POLICY 345-9 (1998).

S-ee 1974 OECD Council Recorrưnendation c (74) 224 concerning Transfrontier Pollution (Annex title B), OHCD, OECD and the Envirom nent, 1986 at 142.

76 LA M M ER S, supra note 12, at 570-72.

77 Convention Relating to the Developm ent o f Hydraulic Power Affecting Mtere than One State, and Protocol o f Signature, Dec 9, 1923, 36 LNTS 77 The Annexed Protocol to the Convention reads “the provisions o f the

C onvention did not in any vvay modify the responsibility or obligations imposed on States as regards injury done

by the construction o f vvorks for the developm ent of hydraulic power, by ruỉes o f international lavv.”

78 See Nordic Environm ental Protection Convention, Feb 19, 1974, Denm ark-Finland-Norway-Sweden, 13 ILM

591 (art 3 providing for individuai standing to pursue cases involving transboundary harm caused by other signatory countries).

79 Convention on Long-Range Transboundary Air Pollution, Nov 13, 1979, ILM 1442 (1979) (the “ íundam ental principles” providing for the prevention o f transboundary harm caused by air pollution produced by C onvention signatories).

80 Convention òn the Control o f Transboundary M ovements of Hazardous Wastes and their Disposal, M ar 22,

1989, 28 ILM 649 (1989) (providing for the prevention and prohibition of harm to other states from the transport and disposal o f hazardous wastes).

81 Supra note 36, art 7 This article o f the Convention will be addressed in detail in Section 3 below.

82 See for exam ple, Protocol for the D em arcation of the Respective Spheres of Iníluence of Italy and the U nited

K ingdom in E astem Africa, Apr 15, 1891, Itaiy - Great Britain, art 3, in TH E CO NSOLIDATED T R E A T Y

SERIES, \ ẫ l 175, at 67 (Parry, c , ed., 1978, French text); Treaty Relative to the Frontiers betvveen the A n g lo -

Egyptian Sudan, Ethiopia and Eritrea, May 15, 1902, art 3, in TH E CONSOLIDATED TREATY SERIES, vol

191, at 180 (Parry, c , ed 1980); A greem ent M odifying the Agreem ent Signed at Brussels on M ay 12, 1894, Relating to the Spheres of InAuence o f Great Britain and Congo in East and Cenưal Aírica, M ay 9, 1906, G reat

Britain - Congo, art III, in T H E C O N SO LID A TED TREA TY SERIES, vol 201, at 182 (Parry, c , ed., 1980);

Exchange o f N otes in Regard to Ưse o f W aters o f the Nile Rivers for Irrigation Purposes, May 7, 1929, G reat

Britain - Egypt, N ote 1, 93 LNTS 43; 1944 T ijuana &L Colorado Rivers Treaty, supra note 14, art 9; and T reaty

Relating to C ooperative D evelopm ent o f ứìe W ater Resources o f the Columbia River Basin, Jan 17, 1961 United States - Canada, 542 ƯNTS 244, art XIII.

83 For exam ple, Convention to Regulate the Hydroelectric D evelopm ent of International Section o f the River

D oaro, Aug 11, 1927, sp ain - Portugal, art 2, 82 LNTS 113; and Agrsem snt Regulating the W ithdraw al o f

W ater from Lake Constance, Apr 30, 1966, A u s tr ia - FRG - Switzerland, ạrts 1 & 3, 620 ƯNTS 191.

84 For exam ple, M inutes o f M eetings Held by Delegations of Y usoslavia and Greece from Mar 23-30, 1956 to Discuss the W ater Level o f Lake Dojran, Section III, Mar 31, 1956, Greece - Yugoslavia, ƯN Doc

ST/LEG/SHR B/12, Treaty No 222; and 1909 Boundary W aters Treaty, siipra note 16, art 2.

t h ư v ỉ ề n

agreements vvith respect to írontier vvaters.86

The pnnciple was covered as early as in 1911 in the Institute of International Law ("ĨTT Madr.d Declaratioa.37 O f the other non-binding documents that mention the principle the most irnportant are: the 1966 Helsinki Rules;88 the 1972 UN Declaration on the Human Envinnment (Principle 21);89 the 1980 International Law Association (“ILA") Resolution on Regulation of the Flow of Water of International VVatercourses;90 and the 1992 Rio Decla:a:ion on Environment and Development.91

The NSHP ĩinds firm acceptance in intemational judicial decisions It was mentioned as early

as in 928 in the ỉsland o f Palmas case brought before the Permanent Court of Arbitration In

this CEse, the sole arbitrator made it clear that the exercise of the right of territorial sovereignty was a;companied with the duty to protect the rights of other States; and that territonal sovereignty of one State could not exclude the activities of other States.92

In Trái Smelter Arbừration,93 a case conceming air pollution but has relevance to vvater

pollution by analogy, the Arbitration Tribunai established hy tho United Slcitei and Canada to adjudi:ate the case reasoned:

Under the principles o f international law, as vvell as of the law of the United States, no State has the right to use or perm it the use of its territory in such a m anner as to cause irýury by fumes in or to the territory of another or the properties or persons therein when ihe case is of serious consequence and the

• inịury is established by.clear and ^pnvincing evidence.

In the ;foresaid passage, the Tribunal explained the obligation of non-signiíìcant harm and the

c o n d itb n s for in v o k in g it: in no ca se does a State h ave the right to use or p e rm it use o f its

territor/ in a manner to cause damage to Others;94 and the damagè/injury serving as basis for

85 For exunple, under the Agreement Concerning the Use o f W ater Resources in Frontier W aters, M ar 21, 1958, Czechosovakia - Poland, 538 ƯNTS 89, neither party to the Agreement may, without the o th er’s consent, coinmence activities which could affect the vvater utility o f the other party; A sreem ent C oncerning W ater Econom} Questions Together with the Statute of the Yugoslav - Hungarian W ater Economy Com m ission, Aug 8,

1955, Yigoslavia — Hungary, UN Doc ST/LEG /SER B/12, Treaty No 228, provides for a cooperative arrangerrent in developing water resource exploitation projects vvhich may affect the quantity and quality o f the

w ater in tie watercourse.

86 1909 Eoundary W aters Treaty, supra note 16, art 2.

87IIL, Midrid D eclaration on International Regulations Regardĩng the Use of International W atercourses for

Purposesother than N avigation (1911) ỉn M M ÃVHITEMAN, D IG EST OF INTERNATIONAL LA W (1964)

T h e Deckration prohibits over exploitation o f a river vvhich substantially affects the utility of the river to another State.

88 See 19i6 Helsinki Rules, supra note 36 The Rules are m ostly concerned with equitable utilization, prohibition

o f caưsin; damage can only be íound in the part concerning pollution.

89 D eclantion o f the United Nations Coníerence on the Human Environment, June 16, 1972, 11 ILM 1416 (1972) [h:reinafter 1972 Stockholm Declaration].

90 ILA , 5 ÍT1 Report, 1980, al.362 et seq.

91 Rio D elaration on E nvừonm ent and D evelopm ent, June 14, 1992, 31 ILM 874 (1992) [hereinaíter 1992 Rio

D eclaratũn].

92 Island c Palmas Case (N etherlands V US) (1928) 2 RIAA 839.

93 T rail Snelter A rbiưation (ƯS V Canada) (1941), 3 RIAA 1911.

94 In Solchum V Aargau 8l Aargau V Solothurn (1900 & 1915 respecuvelv), reproduced in CA IRO A R

R O B B (ec), IN TERN A TIO N A L EN V IRO N M EN TA L LAW REPORTS (vol 1) 467 (1999), the Federal C oun

o f Sw itzeland established that exercise o f the sovereign right excludes both usurpation of the right and

c o m p e n s a tio n m u s t be o f serious co n seq u e n c e and be e sta bỉishe d bv clear and c o n v in c in g

■ , _ 95

evidence

In the Corỷii Channel case, another case conducted in a different context, bụt has relevant

points, the International Court of Justice ("ICJ”) observed that there were "general and vvell recognized pnnciples” o f international law conceminơ "every State’s obligation not to allcnv

knovvingly its territory to be used for acts contrary to the rights of other States.”96 La the Lake Lanoux case, the Tribunal also alluded to the principle prohibiting the upper riparian State

from altering waters of a river if it would cause serious injury to downstream riparian states by acknovvledging that there is a rule prohibiting the upper riparian State from altering the v/aters

of a river in circumstance calculated to do serious irýury to the lower riparian State, even though such rule did not apply to the case in question because France did not alter the water level of the Caroi.97

Similar reasoning is also found in the 1996 Legality o f the Threat or Use o f Nuclear Weapons

case The ICJ made a point directly concemed with a general obligation to ensure that activities v/ithin the jurisdiction and control of one State shail respect the environment of other States as follows:

The Court recognizes that the environmeru is under daily threat and that the use ot' nuclear vveapons could constitute a catastrophe for the environm ent The existence of the iỉeneral oblisation o f States to ensure that activities vvithin their ju n sd icú o n and conirol respect the environment of other States or of ítTeas beyond n atio n al conưol is now part of the corpus of internationa] law relating to the envừonm ent.98

Under Principle 21 of the 1972 Stockholm Declaration, States have,

in accordance wiứi the Charter o f the United Nations and principles of international law, the sovereign right to exploit their own resources pursuant to their ovvn environm ental policies, and the responsibility

to ensure that activities within their owri jurisdiction or conưol do not cause damage to the environm ent

of othér states or areas beyond the limits of natioaal ju risd ictio n "

Historically, the principle of sic utere tuo has changed with respect to its nature and the scope

of regulation Thus, having incorporated into itselí.the legal principles formulated in the Trail Smelter and the Corfu Channel cas^s, the principle, from the initial term of “territory,” has

gradually embraced the “envừonment” as in the Legality o f the Threat or Use o f Nuclear

Weapons case, thereby becoming broader in meaning This element seems to have secured

encroachm ent on the right o f others.

95 See State o f M issouri V State o f Illinois, 200 us 496, 521, in CAIRO A R RO BB (ED.),

IN T ER N A TIO N A L E N V IR O N M E N T A L LAW REPORTS (vol 1) 485 (1999); and State of New Y ork V State

o f New Jersey, 256 ƯS 296, 309, reproduced ỉn CAIRO A R ROBB (ED.), IN TERN A TIO N A L

EN V IR O N M EN TA L LA W REPORTS (voĩ 1) 524 (1999) In these cases the Courts demanded that violation com plained of and dam age caused be of serious magnituđe and established by clear and convincing evidence.

96 Corfu Channel Ca se (M erits) (U.K V Albania) 1949 ICJ 4, at 22 (Apr 19).

97 Lakô Lanoux A rbitration, (France V Spain), (1957) 24 ILR 101 at 129.

98 Advisory Opinion on the Legality o f the Threat or Use of Nuclear VVeapons, 1996 ICJ 226, píưa 29 (July 8).

99 1972 Stockholm D eclaration, supra note 89.

general recognition as it has been repeated not only in resolutions taken by intemational organizations100 but also has been incòrporated in the text of several multilateral international treaties of a general nature.101

With respect to water uses, the NSHP receives its full development in the 1997 Watercourses Convention Article 7 of the Convention entitled ''Oblisation not to cause signiílcant harm ” provides:

1 W atercourse States shall, in utilizing an international w atercourse in their territories, take all appropriate measures to prevent the causing of siẹnificant harm to other watercoưrse States.

2 W hcre sigaificant harm nevertheless is causcd to anothcr vvatcrcoursc State, thc States vvhosc usc causes such harm shall, in the absence o f agreem ent to such use, take aỉl appropriate m easures, having due regard for the provisions of articies 5 [equitable and reasonable utilization and participation] and 6 [factors relevant to equitable and reasonable utilization], in consultation vvith the affected State, to elinìinate or mitigate such harm and, where appropriate, to discuss the question o f com p en satio n 102

Three points in the aforesaid Article are worthv of note: ạì deĩming and quantifving the term

“signiíìcant” would be the preconditions for invokins the obligation provided for in the Article; b) a rather narrow scope of the significant harm principle; and c) the “ soft” tone of the language usecl to provide for the obligation A closer look into these points vvill be presented belovv

(a) Signi/icant harm

There is a requirement conceming the degree, or seriousness of harm: the harm that is prohibited must be “significant.” A problem, as admitted by the ILC in its commentaries on the same term used in still another Draft A rticles,103 is that the meaning o f the worcl i;significant” is rather ambiguous Under the Commission’s view, usignifĩcant” is something more than “detectable” but needs not be at the level of “serious” or “substantial;” and the effecĩ of the harm must be measured by factual and objective standards.104 The term

“signiíicant” in Article 7 of the 1997 Convention was hotly debated at the UNGA 51st Session, which adopted the text of the Convention Pakistan, for example, stronglỳ objected to the term

by stressing that it lacks precision, and that One party’s deĩinition o f usignificant” would be different from that of another.105

100 Cj G A /RES/2996/X X V II, The C harter o f Econom ic Rights and D uties of States, arts 3 & 30,

G A /R 3S/328/X X IX , GA/RES/34/186 See also the ƯN W ater Coníerence, A ctỉon P lan, para 90 (UN Doc

E/CC)NF.70/29).

101 See, for exam ple, Convention for the Protection o f the W orld Cultural and Natural H eritage, Nov 18, 1972,

art 6(3), 11 ILM 1358 (1972); Convention for the Prevention o f M arine Pollution by Dumping ÍTom Ships and

A ừcraíts, Feb 15, 1972, pm bl., 11 ILM 262 (1972); Convention on Long-Range T ransboundary A ir Pollution Convention, Nov 13, 1979, pmbl., 18 ILM 1442 (1979); and Convention of the Law of the Sea, Dec 10, 1982, arts 1)3 & 194, 21 ILM 1245 (1982).

102 Se( 1997 W atercourses Convention, supra note 36.

103ILC, R eport o f the Working Group on International Liability fo r Inịurious C onsequences A rỉsing out o f Acts not Prohibited bv International Law, (1996) Y.B In t’l L ComrrVn., vol II, UN D oc A /C N 4/SE R A /l996/A dd.I

(Part II), Annex 1 [hereinafter ILC, Rẽport on International Liability].

104 S et id at 108.

105 u > GAOR, 51sl Sess., 99'h Plenary M eeting, UN Doc A /51/PV 99 (1997) at 5.

As a matter of fact, tenns of more or less the same nature, such as "signiĩicant,” ^substantiar

or •■•appreciable,” are írequently used in both international and national legal instrumertts.106 Ratiier often, One difficult-to quantiĩy word is used to deííne another For example, for a harm

to b ẹ “ a p preciable,” there m u st b e "real im p a irm e n t o f use,” and for an injury to arise to the

level o f "appreciable" or “substantial,” the injury must have "signiíicant” and consequential effects upon public health, econotruc productivity, or the environment of another State.107 In the same fashion, Commentaries on Article 10 of the Helsinki Rules suggest that an irýury is considered "substantial" if it materially interĩeres wìth or prevents a reasonable use of the

Since a universal íormula is impossible, a ĩactual detennination of what is considered to be

"significant” depends on the circumstances of a given case and the period in \vhich such determination is made Determination has to be made in each case; and involves more factual considerations than legal ones A particular deprivation, at a particular time might not be considered "signiíĩcant” because at that specitlc time, scientiĩic knowledge or human appreciation for a particular resource had not reached a point at \vhich much value was ascribed to that particular resource But some time later that view rrúght change and the same harm might then be considered “signiíĩcant.” 110

Various factors, though technical, should be taken into account in determining if a harm is signifícant Thus, from the point of view of damage/harm caused, effects may take various forms Apart from water uses in a broad sense, the building and operation of engineering structures such as dams for water regulation, barrages, on-shore installation, hydraulic power plants and sluices, to name but a few, are also included in the group of actions causing damage.111 Activities that cannot be qualiíied as water utilization may also cause harm to the utilization regime of the intemational watercourse concem ed.112 These could be deĩorestation

106 See, for example, Operative Paragraphs 1 & 2 o f GA Res 2995 (XXVII) adopted on Dec 15, 1972

Concem ing Cooperation betvveen the States in the Field o f Environm ent, in GAOR, 27lh Session, Supp No.30

(A/8730) at 42; and 1966 Helsinki Rules, supra note 36, art X See also Agreement to Cooperate in the Solution

o f Environm ental Problems in the Border Area, Aug 14, 1983, M exico - U nited States, art 7, TIA S 11269,

1352 ƯNTS 67, 22 ILM 1025 (1983) T he U nited States has also used the word “signiíicant” in its dom estic law

dealing vvith environmental issues See A m erican Law Institute, Restatem ent o f the Law , Sec 601, R eporter’s

Note 3 at 111-112.

107 G oldenm an, supra note 74, at 780.

108 ILA Report o f ứie 52"d Conference, Comments 10 the H elsinki Rules on the Uses o f the Waters o f International Rivers (1966), reproduced in A H GARRETSON et al (eds.), TH E LAW OF IN TERN A TIO N A L

D R A IN A G E BASINS (1967), App A, at 796.

109 Evensen’s First Report in UN Doc A /CN 4/367, para 31.

110 1LC, Report on International Liability, suprci note 103, at 13.

BRUHACS, supra note 23, at 126 Details on the negative impacts õf water vvorks such as dam s vvill be

further provided in various parts o f the remaining chapters in this dissertation.

Id

or erosion brought about in a water system.113 In adđition, vvater utilization may harm interests beyond this domain: large water storage basins and artiĩicial lakes aresources o f epidemics, inAưencing the weather and increasing the danger of earthquake.114 Various other types of damage could occur For example, the banks, the riparian sites, structures and installations concemed to water use and management may suffer đamage, and the scenic attractioni o f a vvatercourse may change, flora or fauna may be destroyed; and the damage may be o f sporadic

or continuous nature.11:> All of the factors mentioned in this paragraph will help to deĩine not only a possible harm itself, but also the degree of the harm, especially when the issue is vvhether or not it is “signiíícant ”

(b) The narrow scope o f the non-sỉgnỉ/icant harm principle

The scope of the NSHP in Article 7 of the 1997 Watercourses Convention is rather narrov/ in that it covers only current users; it does not address potential users This ơap could be easily abused, and may place economicalỊv less developed countries in a disadvantageous situation, especially vvhen environmental harm is claimed Thus, under the pretext that a current user may suffer signiíicant environmental harm caused bỵ a proposed activity on a river by a potential user,116 the cuưent user may deny another potential user’s access to the river This practice may become especially burdensome for economically less developed countries which, due to engaging in developmental activities later than the more advanced ones, normally fall within the group o f potential users The problem is that in order to obtain íinancing from the cỉonors’ community, the potential user proposing an activity often, if not to say in all cases, has to bear the burden of proof that the activitv is environmentally sound.117 •*

113 For a reílection on the im pact of deforestation on the vvater regime of a river basin see Chapter Three, Part III,

Section 3.

114 It should be noted that vvhile natural scientists have not been able to íully prove the causal relationships of dam s/reservoirs and earthquakes, a num ber o f studies have indicated the increasing probability o f dam s’ causing trem or activities Hiroshi Hori cites two Japanese studies to substantiate this point First, Proíessor Seiji Ohtake

o f T ohoku ư niversity studied records o f past earthquakes in Japan (from 1926 to 1984) occurring to a depth of

30 km He concluded that there was a 90 percent probability that tremor activity had increased in the areas around eight o f the 42 dams that were more than 100 m high For example, although earthquakes had occurred in the area near the Makio Dam before the im poundm ent o f water in the reservoir, they became unusually frequent after im poundm ent Second, Professor Shunzo Okamoto of Tokyo ưniversity, vvhile admitting that it cannot be proved conclusively which conditions might cause earthquakes, has concluded that earứiquakes are likely to be induced, am ong other things, when the depth o f the reservoir exceeds 100 m; or a result o f reservoir water

im poundm ent- See HIROSHI HORI, T H E M EKONG: EN V IRO N M EN T AND D EV ELO PM EN T 222-3 (2000)

For details o f the cited studies see M OHTAKE, SEISM ICITY C H A N G E ASSOCIATED W ITH

IM PO U N D IN G OF M AJOR A R T IH C IA L RESERVOIRS IN JAPAN (Tokyo, 1984); and Shunzo Okamoio,

E arthquakes Resistance of Concrete Gravity Dams, in IN TRODƯ CTION TO EARTHQUAKES

EN G IN E E R IN G (Tokyo, 1984) Elsevvhere in the world, seismic activities related to dam s/reservoirs were also observed T he main earthquake in G reece in 1966 had its epicenter under the reservoir of the K rem asta dam Likew ise, the 1967 Koyna Dam disater in the Indian peninsula was caused by an earthquake whose epicenter was

located at the dam itself See N c T haah & D M Tam , Water System and the E nvironm ent, in

E N V IR O N M EN TA LLY SOUND V/ATER M A N A G EM EN T 1, 15 (N c Thanh & Asit K Biswas, eds, 1990).

115 BRU H A CS, supra note 23, at 128.

116 S harif s Elmusa, H arm oniiing Equỉtable ưtilỉiation and Signifìcant Harm: Comments on the 1997 ILC

C onventỉon, paper presented in Conference “ W ater, Dispute Prevention and Development: South Perspective”

W ashington D.C., Oct 12-13, 1998, <http://ww w am erican.edu/m aksoud/w ater98/present7.htm > at 5.

117 Several authors hold the view that pushing it to an extreme, the NSHP could equal to an absolute integrity claim No w onder why lower riparian states so oíten and vigorously advocate this obligation As the State seeking

to initiate a new use would generally be cast in terms of the one creating “ injury” (naturally including

A solution for the above - mentioned discriminatory thrust of the NSHP may be broaden the deílnition of the NSHP to make it applicable not only to the reduction of water withdrawals of

prior users, as it is cuưently understood, but also the denial of use of new claimants.118 lỉ

broadened, the NSHP would not only allovv the co-riparian nations to vveish the respective harms they each incur and divide the burden equitablv — but it vvould also harmonize and even makes identical — the NSHP and an equitable and reasonable utilization principle that gives precedence to socioeconomic and environmental needs The reason is that signiíicant harm coưld only be assessed by measuring the potential impact of a state’s actions on the other state’s socio-economic and envừonmental needs, or vice - versa.119

(c) “S o ft” language L ised to provicỉefor obligations

A typical feature of the obligation not to cause harm in Article 7 is that it is provided for in a rather iisoft'5 way: States shall “take all appropriate measures” to mitigate harm, and where possible, will “discuss the question of compensation.’' In essence, the obligation provided here

is that of “due diligence” rather than.a sharp-edsed cne The ELC made it clear that vvhen draíting this article, the Commission was based, among other things, on a conclusion “that States must exercise due diligence to utilize a watercourse in such' a way as not to cause a significant harm.” 120 As result of its "due diligence” nature, the obligation enshrined in Article

7 is interpretatively subordinate to the provision on equitable and reasonable utilization when they come into conílict.121

^

The “soft” tone of Article 7 should be read in the broader context of the 1997 Watercourses Convention as a whole; and can be explained by the mutually win-vvin nature of the Convention The drafting of the Convention lasted for almost 30 years; and the final text open for signature today is the result of continual work by the ELC.122 This is probably the fĩrst ever multilateral legal instrument conceming water usage that received full and rather active participation by developing countries.123 In that context, it seems natural that the provisions of the Convention were formulated in such an accommodating mode, and the obligation of states

in sic utere tuo is provided for in such a “soft” way.

environmental injury), the NSHP íavors m ore highly developed states at the expense of less developed ones,

particularly as lower basin states tend to develop earlier and íaster than upper basin states See, Joseph w Dellapenna, Treaties as Instrum ents f o r M anaging Internationally-Shared Water Resources: Restricted Sovereignty vs Communiry o f Property, 26 Case w Res J Int’1 L 27, 40 (1994) [hereinaíter Dellapenna, Treaties as Instruments]; and Charles Boum e, Principles and Planned Mecisures, 3 Colo J Int’l Envtỉ L & PoPy

6 5 ,9 2 (1992).

118 Elmusa, supra note 116, at 8.

Id.

120 Se< ILC, D raft Articles on the La\v o f the Non-N avỉgational Uses o f International Watercourses, (1994) 2

Y.B Int’l L C om m ’n 103, U.N Doc A /C N 4.SER A /1994/A dd.l (Part 2) [hereinaíter ILC, D raít Articles] For a more thorough analysis o f the obligation in Article 7 and its relationship vvith the provision on equitable

and reasonable utilization in Axticỉe 5 see Chapter Three (Part III, Section 5).

Fo: a brief history o f draíting the Convention see ILC, The La\v o f N on-Navỉgational Uses o f International Wciter Courses (1998), <http://wwrw.un.org/lavv/ilc/guide/8_3.htm>

123 ThiS is one of the reasons leading to the inclusion in the Preamble of the phrase that the Parties to the Convenũon are “ [a]ware of the special situation and needs of developing countries."

4 C o n c l u s i o n s

The NSHP, probably more than any other principle or concept, has been firmly established as

a customary rule of intemational water law This is evidenced in the large number of leeal instruments — both of the "hard ’ and “sofV’ nature — providing for the principle, and by the Juclicial decisions by the ICJ and other intemational tribunals which, to One degree or another have applied the principle

Envừonmental damage is an additional component thác has later been incorporated in the principle The NSHP in its current definition remains germạne to environmental protection especially in the downstream countries.124 While being a powerful tool of environmentalists, especially those in developed countries, the principle may pose obstacles to đevelopmental projects that are undoubtedly needed in economically less developed countries In this context, one should try to keep a balance as too much inclination to preventing “envừonmental damage,” which has not yet been suffĩciently proven from a scientiĩic perspective, mav prevent needed developmental prọịects from taking place

No matter how hard one tries, the use of terms that are difficult to quantiíy, such as "necessary measures” and “signiíĩcant harm” seems to be inevitable in sccuring the merits of the NSHP

It is thereĩore important that a continuing spirit of cooperation among states concemed be maintained to keep the principle alive and feasible What is clear, hpwever, is that the NSHP, since its beginning, has signiíicantly diminished the effect of the concepts of ATS and ATI, and is currently becơming a nrạịor principle of modem intemational vvater law

V THE PRINCEPLE OF EQUITABLE AND REASONABLE UTELEATION

1 Rationale

The NSHP addressed in Part r v above has one obvious vveakness: the prohibition on causing

d a m a g e to a n o th e r State - a n e g a tiv e a p p ro a c h vvhich has b e e n effective only in cases o f low

frequency and limited utilization.125 With the dynamic development of water usage and management, the - requirement of a more ílexible and refined mechanism for the actual adjustment and accommodation o f the water utilization rights among individual states has

b e c o m e a Central p ro b le m , an d th e sic utere tuo rule vvith its prohibitive a p p ro a c h is not

capable of resolving it A solution may be found in the "equitable and reasonable utilization principle” (“ER U P”) - a principle of a mo:;,e ílexible and positive nature than the N SH P.126 In

a broader perspective, the ERUP is regarded as almost identical with the general principle of intemational law that limits territorial sovereignty 127 In a naưower sense, the ERUP represents a two-faceted principle: while a watercourse State has an obligation to use a vvatercourse in an equitable and reasonable manner vis-à-vis other states sharing the same

w atercourse the w atercoarse State also has a right to an equitable share o f the uses and beneíĩts

o f an intemational vvateicourse running through its territory.128

4 Elmusa, supra note 116, at 7.

125 BRƯHACS, supra note 23, at 157.

126 c Eagleton, Use o /W a ters o f International Rỉvers, Can Bar Rev 1018,1021(1955).

127 Lipper, supra note 21, at 18 & 23-38.

128 s c M cC aíírey, An O verview o f the U nited Ncitions Convention on [he La\v o f the Non-Navigatỉonal Uses o f

Changes of vvater uses in both namre and scope per se are another reason leadinơ to

emergence of the ERUP as a workable principle in International law As human understandinơ

of the natural processes of river basins became deeper and more comprehensive, a need for change in the way of managing river basins has arisen The ERƯP has come into beine in response to the increasing emphasis on the hydrological uniíĩcation and inteơrated approach of management of intemational watercourses and the resulting incíeased convergence of interests

of the riparian states.129

Although as a whole the ERUP is a rather recent principle in intemational water law, its constituent elements, especially the concept of “equity”, take origin in familiar, and much older, jurisprudential concepts

2 Equity in general international la\v

As an old and íamiliar jurisprudential concept, equity íìncỉs its root in early histories of many societies of which the Chinese, Roman and Hindu are amons the notable ones.130 In Roman law, equity was understood as an extension of natural justice and a means o f correcting speciíic law; and in the common law system, the concept vvas further developed and became

an independent source of rules and principles to decide cases on the basis of *:faimess” as an altemative or supplement to more risid and harsher rule of the common lau/.131 M odem uses

o f equity vary, depending on each particular case.l32In intcmạtional law, equity has never been explicitly expressed as a general principle The concept itsclf, hovvever, has evolved over centuries Traditionally, the concept is believed to be rooted in Aristotelian theory in which equity was a tool to correct the law by tempering it with faim ess.133 This vievv was later upheld by Hugo Grotius who called for the interpretation of treaties by taking equity into

account so as to except certain cases from the strict application of the law 134

Equity as a mechanism of judicial interpretation (intra legem )135 of strict law has been applied

International W atercourses, 20 J Land Res & Envtl L 57, 60 (2000) [hereinaĩter M cCaffrey, An Overview].

129 BRUHACS, supra note 23, at 158.

130 C H RISTO PH ER R ROSSI, EQ U ITY AND IN TER N A TIO N A L LAW, A LEGAL REALIST A PPR O A C H

TO IN T ER N A TIO N A L D EC ISIO N -M A K IN G 22 (1993).

1 G Radbruch, Justice a n d Equity ỉn International Relations, T he New Commonwealth Institute M onograph

Series B, No 2 (London: Constable & Co Ltd., 1936) at 2 For a detailed analysis of origin o f developm ent o f

the concept in civil law and com m on law see ROSSI, id at 21-40.

132 There could be as m any as six different meanings of the terms: 1) fairness and impartiality; 2) the body o f principles constituting what is fair and right; 3) the recourse to principles of justice to correct or supplem ent the com inon lavv; 4) the system o f law originating in the English Court o f Chancery which provided an alternative to the com m on and statute lavv; 5) a right or interest recognized by a court of equity; and 6) the right ĨO decide

m atters in equity See B L A C K ’S LAW D IC TIO N A R Y 560 (1999).

153 E N cY C L O P E D IA OF PUBLIC IN TER N A TIO N A L LAW , (vol Two) 109 (1995) [hereinafter

EN CY CLO PED IA ] ư n d e r A ristotle’s view, the lav/giver could draft laws in general terms only, and, as a results, laws coulõ‘ not attain th eừ intended purpose in every case Accordingly, in special cases the lavv needs to be tempered by equity in order to achieve a ju st result.

134 H G RO TIU S, T H E RIGHTS OF W AR AND PEACE, Book 2, Chapter 16, Section 26.

135 In addition to equity as intra legem, intem ational law theorists also distinguish equity as prcieter legem (a means o f filling a gap vvhen the law is silent) and as contra legem (equity may contradict the law) See

EN CY CLO PED IA , supra note 133, at 109.