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The Law of Non-Navigational Uses of International Watercourses ' The International Law Commission Completes its Draft

Published online by Cambridge University Press:  21 July 2009

Malgosia Fitzmaurice
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Extract

The purpose of the present study is to briefly introduce the final (1994) Draft Articles of the International Law Commission (hereinafter ILC) on The Law of Non-Navigational Uses of International Watercourses (hereinafter Draft Articles or 1994 Draft) and to analyse some of the more important and interesting provisions. It is not the intention to discuss basic theories relating to the management of international watercourses, on which numerous studies are already available. Nevertheless, the Draft Articles incorporate two fundamental principles of the law relating to watercourses, viz. the principle of equitable utilization and the no-harm rule, which will be treated at rather greater length because of their importance as well as certain ambiguities in the Draft Articles relating to them.

Keywords

environmental lawequitable useInternational Law Commissioninternational watercourses.
Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 8 , Issue 2 , Autumn 1995 , pp. 361 - 375
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1995

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References

1. For the text of the Draft Articles and the ILC's Commentaries on them, see The Law of Non-Navigational Uses of International Watercourses, Extracts From the Report ofthe International Law Commission (hereinafter ILC Report), 24 EPL 335 et seq. (1994).

2. The ILC's work on the topic of the non-navigational uses of international watercourses goes back to a UN General Assembly resolution (UN Doc. A/RES/2669(XXV) (1970)), which recommends the ILC to “take up the study of the law of non-navigational uses of international watercourses with a view to its progressive development and codification”. For an in-depth study on the background up to and including the 1991 Draft, see McCaffrey, S.C., Background and Overview of the International Law Commission's Study of the Non-Navigational Uses of International Watercourses, 3 Colorado Journal of International Environmental Law and Policy 18–22 (1992).Google Scholar

3. See, e.g., J. Bruhacs, The Law of Non-navigational Uses of International Watercourses, (1993); J.G. Lammers, Pollution of International Watercourses (1984); and A. Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (1993).

4. For the text of the 1991 Draft, See 21 EPL 247 et seq. (1991). On the 1991 Draft, See 3 Colorado Journal of International Environmental Law and Policy 1–334 (1992), which contains the proceedings of a symposium on the 1991 Draft, held at the University of Colorado School of Law, October 1991; McCaffrey, supra note 2; S.C. McCaffrey, The Law of International Watercourses, The ILC Completes its Draft A nicies, 22 EPL 66–67 (1992); and S.C. McCaffrey, The Law of International Watercourses: Some Recent Developments and Unanswered Questions, 17 Denver Journal of International Law and Policy 506–526 (1989).

5. See note 11, infra.

6. See ILC Report, supra note 1, at 336.

7. See UN Doc. A/RES/49/52 (1995).

8. Id.

9. The inclusion of the word “management” in Art. 1(1) was an addition in the 1994 Draft. It emphasizes the intended breadth of the term ‘uses other than navigation’, which is intended to” embrace not only measures taken to deal with degradation of water quality, notably uses resulting in pollution, but also those aimed at solving other watercourse problems, such as those relating to living resources, flood control, erosion, sedimentation and saltwater intrusion”. See ILC Report, supra note 1, at 336.

10. Id.

11. Id., at 337. The exclusion of confined groundwater was despite the views of some members of the ILC, and of a strong proposal from Special Rapporteur Rosenstock. Instead, the ILC passed a separate Resolution on Confined Transboundary Groundwater, which was presented to the General Assembly along with the Draft Articles, the main effect of which is that the ILC, “recognising that confined groundwater […] is also a natural resource of vital importance for sustaining life, health and the integrity of ecosystems, […] [c]ommends States to be guided by the principles contained in the draft articles, where appropriate, in regulating transboundary groundwater”. For the text of this Resolution, See Id., at 359–360.

12. The principle of equitable utilization is very well-established, albeit in ambiguous terms, in the law concerning water courses. It was included in Arts. IV and V of the International Law Association's (hereinafter ILA) 1966 Helsinki Rules on the Uses of the Waters of International Rivers, Report of the Fifty-Second Conference, Helsinki, Finland, 1966, at 484 (1967) and in the ILA's 1982 ILA Montreal Rules on Water Pollution in an International Drainage Basin,Report of the Sixtieth Conference, Montreal, Canada, 1982, at 535 (1983). The principle is also well-founded in the practice of states and has been incorporated in a number of international agreements.

13. ILC Report, supra note 1, at 342.

14. See also Nollkaemper, supra note 3, at 61–64.

15. The no-harm rule has its origin in the well-established principle in international law of sicutero tuo ut alienum non laedas, also known as the principle of the harmless use of territory. See also McCaffrey, S.C., The Evolution of the Law of International Watercourses, 45 Austrian Journal of Public and International Law 106–107 (1993).Google Scholar

16. See Report of the International Law Commission on the Work of its Fortieth Session, 1988–11 YILC 36.

17. Id.

18. According to McCaffrey, this deliberate use of the same terminology in the same way in two different drafts involves quite a new approach within the ILC. See Remarks by S.C. McCaffrey,Non-Navigational Uses of International Watercourses, in R. Lefeber (Ed.), Contemporary International Law Issues: Opportunities at a Time of Momentous Change 378, at 380 (1994).

19. See McCaffrey, supra note 18, at 379; and cf. J. Barboza, Sixth Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, UN Doc. A/CN.4/428 (1990), General List of Draft Articles (Art. 2(h)), 1990–11 YILC 23.

20. ILC Report, supra note l, at 338.

21. Id.

22. S.C. McCaffrey, Fourth Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/412 and Add.l and 2 (1988), 1988–11 YILC 238.

23. For a record of the discussion on the due diligence nature of the obligation in the ILC, See, e.g., Report of the International Law Commission on the Work of its Fortieth Session, 1988–11 YILC 29–31.

24. ILC Report, supra note 1, at 343.

25. Id.

26. McCaffrey, S.C., The International Law Commission Adopts Draft Articles on International Watercourses, 89 AJIL 399 (1995).CrossRefGoogle Scholar

27. See also McCaffrey, supra note 15, at 108.

28. See also McCaffrey, supra note 26. The no-harm rule of the 1991 Draft reads simply:“[w]atercourse States shall utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse States” (Art. 7).

29. On the due diligence nature of the no-harm rule of the 1991 Draft, See note 21 and accompanying text, supra. Clearly, if the no-harm rule would not be a due diligence obligation, this rule would prevail overthe principle of equitable and reasonable use irrespective of whether the harmcausing state had exercised the required degree of due diligence or not.

30. R. Rosenstock, First Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/441, at 10–11 (1993). According to Rosenstock, “[a] use which causes significant harm in the form of pollution shall be presumed to be an inequitable and unreasonable use”.

31. See McCaffrey, supra note 26, at 401.

32. Cf. Barboza, supra note 19, at 108 (An. 21), and the Commentary, ILC Report, supra note 1, at 96.

33. ILC Report, supra note l, at 343.

34. Id., at 344.

35. Id., at 343. See also McCaffrey, supra note 18, at 379.

36. See note 31, supra.

37. See ILC Report, supra note 1, at 359.

38. UN Doc. A/C.6/49/SR.24, at 16 (1994).

39. See UN Doc. A/C.6/49/SR.23, at 6 (1994).