Luận án tiến sĩ Luật học: Sustainable development of water resources: International regulations Mekong regional cooperation and Vietnamese national legislation

Two important understandings of the concept of sustainable development, as applied to waterresources, have been reached: it represents an integration of water utilization fordevelopmenta

THEUNIVERSITY OF NAGOYAGRADUATE SCHOOL OF LAW

Doctoral Dissertation

SUSTAINABLE DEVELOPMENT OF WATER RESOURCES

INTERNATIONAL REGULATIONSMEKONG REGIONAL COOPERATIONAND VIETNAMESE NATIONAL LEGISLATION

Dissertation presented as full fulfillment of the requirements for

the Degree of Doctor of Laws

Name: Le Thanh LongName of course: Professional Program in Law and Political Sciences (2000-2003)

The problems of water scarcity and pollution which had not been of a particular concern oftraditional water resources law can now be partly relieved by applying the concept ofsustainable development at the international, regional and national levels This flexible legaltool is in a position to keep the right balance between the use and protection of water

Two important understandings of the concept of sustainable development, as applied to waterresources, have been reached: it represents an integration of water utilization fordevelopmental purposes and the resource’s environmental protection, and can act as a guidingconcept for handling specific water issues Internationally, these perceptions are reflected in the Gabcikovo-Nagymaros case adjudicated by the International Court of Justice and the 1997Watercourses Convention The States in dealing with their water issues can rely on the majorfindings 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 Mekong to ink a new vision of sharing the river in a rather general, complex, and pragmatic manner The provisions on the Mekong’s development are 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 appropriate 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 water use, protection and management of water resources are nowincorporated in the related legislation There are, however, ensuing problems While the substantive loopholes and discrepancies may be overcome without much difficulty, practical implementation is rather challenging Solving the problems is a time-consuming process, which requires constant efforts and stronger commitments from the highest levels of theGovernment

ACKNOWLEDGEMENTSThe writing of this dissertation has been possible thanks to a number of agencies and people.

My foremost and deepest gratitude goes to my main academic advisor, Professor YoshiroMatsui It was with his advice that [ found the main theme, and directions for developing the

backbone arguments, of the chosen topic He helped me shape the organization of thedissertation and was very effective in forcing me to write it as coherently and clearly as Icould His remorseless and meticulous 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 suggested how to evenbetter glue the different parts of the dissertation to make it a more congruous whole ProfessorHaruo Saburi’s sharp comments led to the more consistent use of key terms, and enriched the

difierent parts of the dissertation

I cwe great thanks to the Japan International Cooperation Agency and its associatedOrganization the Japan International Cooneration Center — which generously granted andadministered my scholarship At these two organizations, Mr Okubo, Mr Nakazono, Ms.Ikeda, Ms Nada, and Ms Takimoto deserve special thanks I would also like to express my

gratitude to Professor Morishima who once worked part time for JICA, for his facilitation in

alrenging my program

In the Nagoya University Graduate School of Law, Okuda Sensei was alWays ready to do

eve:y possible thing to make my life in Nagoya enjoyable She is not only an international

Stucents 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 withunlimited 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 many thanks go to all of them

The Vietnam Ministry of Justice granted me an extended study leave to undertake thisdocoral program The help of Minister Nguyen Dinh Loc, whom I assisted as a secretary,Vice-Minister Ha Hung Cuong, and International Cooperation Department Director Nguyen

Huy Ngat is acknowledged with great gratitude

Mr Nguyen Nhan Quang, Deputy Director General, and the Information and Library Staff atthe Vietnam National Mekong Committee not only spared their valuable time to give me aninsight into the Mekong current matters, but also provided me with access to the collection ofMR2 primary materials and unpublished papers that I would otherwise not have been able to findin any library I would like to thank them.

My fellow graduate student, Nguyen Quoc Vinh deserves thanks for his general interests in the opic Ms Dang Hoang Oanh is thanked for having been of special help and inspiration whith gave me the strength to overcome the many difficulties that I encountered in writingthe dissertation

x

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

ill

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

To Nga & Nhan — my daughter and son

Table of CONtENES =— —- dddaaaaa Nội

90x2a0019 727 —ŠằŠšŠằ bbb trib riba bobbi bebrbbes XIChapter One

GENERAL INTRODUCTION ccc cceceece ce nh nh nh nhe ng lChapter Two

EVOLUTION OF INTERNATIONAL WATER LAW

CONCEPTS AND PRINCIPLES 22200022 nhu 6

I 1NTRODUCTION c cu.NHƠN 395955) BH 93 1539 81 W8: 6

H THE EXTREME CONCEPT OF ABSOLUTE TERRITORIAL SOVEREIGNTY 7

1 Historical backgrounds and nature 7

2 Theconcept in treaties and DFACfÏCe cece cece cece eee eeeceeevees 8(a) United States — ÀÍ€XỈCO cece cnc TT TT vn nh nen nà na cv tk ch 8(b) United States — CaNQđA Q.2 cect ete ng nh khá xu 9(2 “9/21 0 8 h8 Ea 10) he .hM ăăẶăẶa a11ẦA 12

QI THE CONCEPT OF ABSOLUTE TERRITORIAL INTEGRITY t8

1 Background and implications en ened 13

2 Practical uses and claims c2 2022021211 v ven 14

3 O08) 0CC2 000) (05) 2200202 000 nv TT Tn nnk nn Tk nh nh 15

IV THE NON-SIGNIFICANT HARM PRINCTIPLE 16

2 The principle in international law and international water law 16

3 Analysis of the non-significant harm principle 19

(a) Significant haF1 Q0 TQ TT ĐT HT kh nh ng xẻ 20(b) The narrow scope of the non-significant harm prinCiDÏ@ «cà 22(c) “Soft” language used to provide for obligations cài Ăn 23

V THE PRINCIPLE OF EQUITABLE AND REASONABLE UTILIZATION 24

2 Equity in general international law ĐỒ 18 0001090 tsa PS " 25

3 Equitable and reasonable utilization of international waters 26(a) Federal States and international CAS€S 122cc ng cube sec eeeeeeeeens 27(b) Bilateral and multilateral instruMentS 2.0006 0 0c ccc ccc cece eee e cece teceeeteteeeenuas 29

Vi

(c) Weaknesses of the ERUP in the 1997 Watercourses ConVeHtiOH (d) ERUP and economically less developed COHIFI@S " eetee een:

VI THE CONCEPT OF COMMUNITY OFINTERESTS

1 Origin and developmeII eee ec sec eeceeeeeeveeeeverenes

2 Community of interests as equality of righ(S 222 ee cues

3 Joint management and development 2222222 nhe

4 ®#°i oi nã n6 ốc .ẽ.ẽ

VI PROCEDURAL PRINCIPLES " ¬ be ec ct eee eee

1 General obligation to COOP€FAf€ 20000 cc nh nên

2 Regular exchange of data and information c

3 — Prior notice and good faith negotiatiOn cua

4 SUHmNHNV cece cece eee ceveeveeceuneeeveteecnteeneeneeneeers

VIH CONCLUSIONS Q.00 enced ened ebb bebe teen ke nen

Chapter Three :SUSTAINABLE DEVELOPMENT AS A CONCEPT FOR HANDLING

SPECIFIC WATER ISSUES AND FOR LAW MAKING AND

INTERPRETATION: THE GABCIKOVO-NAGYMAROS CASE

AND THE UNITED NATIONS INTERNATIONAL

WATERCOURSES CONVEN TION wis inet cacts nee ccanscsnna scans ssn t stn SLE 12 12404 k1 H2

kL SUSTAINABLE DEVELOPMENT: GENERAL ISSUES «0.0 sass semacsssaesinmmuanas

UW SUSTAINABLE DEVELOPMENT AS A GUIDING CONCEPT FOR

DISPUTE SETTLEMENT IN THE GABCIKOVO-NAGYMAROS CASE

1 In place of introduction: the case’s synopsis, the ICJ’s judgment and

the scope of Part lÏ c2 Q00 0n c2 eee ng enneaeeeeeee eed

2 Claims and arguments of the Parties and the Court’s decision (a) Hungary’s claims and its arguments for a state of ecological neC€SSLIV (b) Slovakia’s counter arguments, and the Court’s đeCLSỈOH cà

3 The concept of sustainable development and the Court’s reasoning 1 Sse E8

4 Judge Weeramantry’s separate OpInion È⁄ se

(a) The principle of sustainable deVeÌlODINGHI nu hy(b) The continuing process of environmental impact đ$S€SSI€HI à ees

Ul SUSTAINABLE DEVELOPMENT AS A GUIDING CONCEPT FOR

ELABORATION OF, AND IS REFLECTED IN, THE 1997

UNITED NATIONS INTERNATIONAL WATERCOURSES CONVENTION .

l An overview of the Convention’s major provisions

and the scope of issues addressed in Part III 00 cece cece eee een2.- Overall approach: being pulled between utilization

and environmental profeCtÏOn Qnn n nh nh nh nh nh nh

Vil

SUMHIAFV 0200200000 002 bbb beet ete nn n nh nu 85

COD 801.08 n1 nh na an ốố.ẽ astm nse ốố 86

Chapter four

LEGAL ASPECTS OF MEKONG RIVER BASIN COOPERATION

AND SUSTAINABLE DEVELOPMENT OF MEKONG WATER RESOURCES 88

INTRODUCTORY REMARKS Q.00 nu nh nh nh nh nhà ees 88

LEGAL AND INSTITUTIONAL ASPECTS OF COOPERATION IN THE

LOWER MEKONG BASIN PRIOR TO THE CREATION OF THE MRC IN 1995 90 The physical geography of the Mlekong nen se 90Legal and institutional aspects of the cooperation on the Lower Mekong

Basin prior to the creation of the Mekong River Commission 92Period prior to the creation of the Committee for Coordination — me

of Investigations of the Lower Mekong Basin (up to 1957) 0c cece ccc veces 92The Committee for Coordination of Investigations

of the Lower Mekong Basin (1957-1994) uc nn nh nh nh nh nh nh nh 94 ESIABIIRHTWBHI 01K 2 Fs eumme ne Fesnuneon ZY B2 800/88 16 80 6 E8 B008 8 5 BUN KH } SƠN Ee HP 95 Organization and prOC€dUF€ c2 nọ nền nh nề nen ng 96 Interim Mekong CommiItf€€ - c2 nọ nh nh n ea khe cớ 96 EiiIl6otlöil atid GO WEIS tren cú TT Là exmawe ys 006306 4t ou g4 š THƠH05 1 š SH tty 92096 1E 390 eer 90m v3 97 Major activities of the Mekong CommiIttee che 98 Data collection, studies and investigations c ccc cece cence nh nh nh nh nh he 98 PGI men 8 99

Operaional Works Off Lhe THEÏNGW NI san «+100 tt zens s kia vn mes ey HO x9 xà en om 99 + 8m s vse x renee se sprees ốẽ 100

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

Primary reasons — the submerged part of the iceЀF à cà nành 101 The conflicting needs over the Mekong nec -suemeer ys iva ph nin es ven cnt sees nh 101

The stringent requirement of a basic documeht -‹ -cc: 102 Secondary reasons — the surface part of the iceberg à cành nhà 103 PTOGSUFAÍ GMISSIONS «uc 2s conse sss ware bà emma se 1114 5001 L1 BIUĐES Là S090 EA V2 ee eee 104 Lack of necessary functions and POWETS eee eee nh nh nh ene ees 105 Absence of a Gispute resOlUtion GÌAHSE' wie: icon cena ava aawcsne cá n4 es see ee mee Kế tà HA và 105 Absence of an environmental clause cành nhe kho « 105

THE 1995 MEKONG AGREEMENT AND ;

SUSTAINABLE DEVELOPMENT OF MEKONG WATER RESOURCES 106

Vill

Utilization of Mekong WaterS 202cc ng 107

Water Allocation 0.00 ccc cece cece cece cece cess ee euetetueseteveectvieecreceyen 107Legal issues of notification, prior consultation and agreement L 108Implications of Article 5.0.0.0 ccc c ccc cece ccc eee TH cece es esetuvessnsevaeeevevenrerees H1

A broader and freer right to use the Mekong 2.2222 22 2c à 111Checks and balances of the freer regime Of USC 22222222222 2n cues H12Details yet to be further prOVIded 2222222220002 nh nh uàn 113Protection of the Mekong against pollution c 113Preservation of the Mekong 2.022 he 115ECOniOmY Re) H§Ê ee L15Weighing pros and cons of uses — dam CONStrUuctiONn L2 cece cece ee nh eens T5The Basin Approach cece cece cence bebe tebe betes bebe bcbe váy 118Integration of use, protection and preservation 0.0.0.0 0 0 cc cece cee eevee [20

SUMMALY 200.006 ccc cece ec cece eee ee vee cveveusereeeeeueeevevnesteetetetiteterers 123

THE MEKONG RIVER COMMISSION AND ITS ROLE

IN SUSTAINABLE DEVELOPMENT OF MEKONG WATERS [24Worid’s water bodies: an overview 22.2.2200 000212 nnn nh nh nh na 124

MRC’s role in materializing Mekong’s sustainable development: the rationale 129

Development versus environment and the MRC to strike a balahce 129The administrator for implementation of a generally formulated agreement 130

MRC: organization, structure, general functions 131

Organization, structure, and general functions and DOWF§ co co 131Legal nature of power and decisions 1.0.0.0 ccc cc ccc ccc cece ec encecteneeetesecees Tae 133

An overview of MRC’s current prògrams 133

Policy and rule making te tes ec este eet eeee ena enes 135

The legal DASis N4 na 135

Elaboration of a detailed regulatory framework ccc cc cece ec ee n2 teen vn 135

Materialization of the basin approach 1.0.0 00 ccc ccc tcc cence ne ene nh nh 137Involving the participation of Myanmar and China 137

Preparing a BDPn 0000000 n2 5n ng nh vn va 138

Environmental role c cà Ms sy ume ns same semen es 138

A forum for notification and consultatfion c.c cĩc se, 141Dispute resolufÏOn cece cee nee ce bebe nen nh nh nha 142 Fundraising - c0 00 0n Tnhh kh xố 143 SUMMALY 000 ee ceeeaeetenteceeneteeeeeeettgeeeateees - 145 COODICLUISICING « cassnaes chan es amis a1 cme e vita 26:8 tt nme 8 B3 Ka ARIAL 1: ROR tš HORAN H WOR £ § 9 MOS 9 146Chapter Five

VIETNAMESE NATIONAL LEGISLATION

AND SUSTAINABLE DEVELOPMENT OF WATER RESOURCES 148

Legal framework for SDWR: harmony of domestic

and international regulatÏOnS ce ence nh eee se 149The 1997 Watercourses COHV€HIIOH 2.2 eect e tenet nh nh Hy 149

Vietnam and Mekong COOD€TGILOH Q.02 00H nh cence ee nà nà nà ch 151

Sustainable development of water resources as Vietnam’s internal needs [32

SUMMALY 0 bone b bbb bn ecto been bccn bee cv xà 155

THE LEGAL FRAMEWORK FOR SUSTAINABLE DEVELOPMENT

OF WATER RESOURCES oi ssicescenssswumese ố6 155Statement of issues and SCOpe 0.0000 ccc cece eect 22c n2 155General provisions related to sustainable deyelopment Tỉ ee 155

An overview of water resources legislation and the provisions on SDWR 157 APL OVEPVIOW Man 157 Direct provisions ON SDWẨ ác eee reece cies Hàn nhà Hà HH 158Water policies, water ownership, water rights

and their implications for SDWR 2 uc nh nh nhe he 159Water Polici@S am gảảgqặa_ inne ences et ettee eed 159Water ownership, water right and water US@ PermMUs ice eee 160Protection Of Water cece cece cece neces nee HH eee Ty TH nh ene ngà kh TH 164 Water laWeeccccccceseseccsrssssvsecscssesesesvevsaeassssessucsvsvsseevsvssesssvsusieaessucacetenseesiesesieeesnseeeensesses 165 RED OEPG AW, sannevmanennnannrnnancentionnnan tie dnseesocsssoee E038 OSCR Cin OG CAA SRE ra HE PN 165

CER, TAP sen con eit iamamroont i SEI A SE SO ON SNS ER RI RN GARMIN tem 166 Environmental law mm" 166 SEPP I cae Sen ''.ẻ 167 Basin planning and drainage basin approach cccằằ 167 WEP LAW oo csr eo esc es nominee tn oem Ca eon en eosenne ys hiked £18 SM 168

770 TT ——— - prone won jig 1a ae 28 169

BAN LOW 8n ` 169 SUPT cece vo ncn HT SR A NHƠN 9 Sm 66 8 SORT BLEW SIR § Tà NHI Up TERE 89 eee #9 x mn «rớt k« 170

Water management and implications for SDWR cà ià 170 WAlEr HuinHEEHIEHI QRENCISS «cows se pH ch yess ewe: "xố ố esp S6 «4 170

The MARD and line Ministries nen nhe nh nhe kh he 170

The National Water Resources CounCiÏ ch nh nhe, 171

Compliance with water resources leg1SÌAIlOH sàn se nh nh he 172

Water Resources THSDECHON.::seac snes iso siss vase tra san: ¬_— ` 172

Settling water disput€S “—~- ` 172 CũnfliSiöfiS «co vu annem vB 20006461 k SE g8 00031041 1P5200 t9 gamete se 173 '

SUSTAINABLE DEVELOPMENT OF WATER RESOURCES:

SUBSTANTIVE PROBLEMS AND SUGGESTED SOLUTIONS 175 Inconsistencies and overlapping con nen nh nh nh he hy 175 The wrong place of land with surface water bOdieS -sằcceehehhehtrehrrrrree 175 Omission of multi-purpose licenses/permits in mineral aCEIVHIS cà ằằ 177 Lack of detailed regulations cà nhe nen nhe nee eats 178

2772012200777 enn nee nee e ene rene re eres senna 178 Environmental law cccccc cece ccc EEE EEE ene EES 179

V SUSTAINABLE DEVELOPMENT OF WATER RESOURCES: ,

PRACTICAL IMPLEMENTATION PROBLEMS

AND SUGGESTED SOLUTIONS Q00 khe 180

1 The coordination problem 222022002122 180

3 The financial constrainfs "Ma ccna es 186

4 Curbing pollution at source and the problem of state-owned enterprises 189

5 Public awareness and participation ccc cc ceeeceneneeeteceeecteeeeeectetecetaeees 19](a) — PUBLIC AWA ENESS daadiaiiiÝẢ cceauaaaeeescetesceeesvsieeeeeeeeeneeteeeess 191 (b) Public participation and ACCEPIANCE 2.2 cece cece cece nh kh kg 193

VI CONCLUSIONS 0.0.00 0 coccinea bbe nk nk cnet teen ene ke eee ng 194Chapter Six

GENERAL CONCLUSIONS 2c nh nh nhe khe vờ, TỔ BIBLIOG RADA 0= 200

XI

Can Bar Rev.

Can Y.B Intl L

Case W Res J InUlL

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Colo J Intl Envtl L & Pol’y

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American University International Law ReviewArizona State Law Journal

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Absolute Territorial SovereigntyAustrian Journal of Public International LawAustralian Water Consultancy CompanyBoston College Environmental Affairs Law ReviewBasin Development Program (of MRC)

Basin Development Plan (of MRC)Berkeley Journal of International LawBritish and Foreign State PapersBrooklyn Journal of International LawCalifornia Law Review

Canadian Bar ReviewCanadian Yearbook of International LawCase Western Reserve Journal of International LawConcept of Community of Interests

Chief Executive Officer (of MRC)Colorado Journal of International Environmental Lawand Policy

Colorado Journal of International Environmental LawYearbook

Communist Party of Vietnam

Committee on Science, Technology and Environment of

Vietnam National AssemblyConcept of Sustainable Development

Denver Journal of International Law and PolicyDickinson Journal of International Law

Data and Information Exchange Procedures (in MRC)Economic Commission for Asia and the Far East

Ecology Law QuarterlyEnvironmental Impact Assessment

Emory International Law ReviewEnvironmental Law

Environmental Program (of MRC)Equitable and Reasonable Utilization Principle Economic and Social Commission for Asia and the Pacific `

Food and Agricultural OrganizationFordham Environmental Law JournalFordham International Law Journal General Assembly Official Records

XU

GATT General Agreement on Tanffs and Trade

GDP Gross Domestic Products

Geo Int'l Envtl L Rev Georgetown International Environmental Law ReviewGeo, Ld Georgetown Law Journal

Golden Gite U L Rev Golden Gate University Law Review

GOV Government of Vietnam

IBP Indicative Basin Plan (of MC)

IBWC International Boundary and Water Commission

(US-Mexico)

IBC International Boundary Commission (US-Mexico)

ICJ International Court of Justice

HfL Institute of International Law

ĐC International Joint Commission (US-Canada)

ILA International Law Association

ILC International Law Commission

ILM _ International Legal Materials

ILR International Law Reports

IMC Interim Mekong Committee

IUCN International Union for Conservation of Nature

JC ~- Joint Committee (of the MRC)

J Intl L lus Journal of International Law and Business

J Intl L š Pol’y: Journal of International Law and Policy

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

J Land Us: & Envtl Law Journal of Land Use and Environmental Law

KRA Key Result Area(s) (in Mekong cooperation)

LEP Law on Environmental Protection (Vietnam)

LMB Lower Mekong Basin

LNLD Law on Normative Legal Documents (Vietnam)

LNTS League of Nations Treaty Series

LPIDE Law on Protection and Development of Forests

(Vietnam)LWR Law on Water Resources (Vietnam)

MARD ) Ministry of Agriculture and Rural Development

(Vietnam)

MC Mekong Committee (Committee for Coordination of

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MelbourneJ L.R Melbourne University Law Review

Mich J Inil L Michigan Journal of International Law

Miss LJ Mississippi Law Journal

MOJ Ministry of Justice (Vietnam)

MOSTE Ministry of Science, Technology and Environment

(Vietnam)MPI Ministry of Planning and Investment (Vietnam)

MRB Mekong River Basin

MRC Mekong River Commission

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XIV

Chapter OneGENERAL INTRODUCTION

The world currently faces two major water problems: shortage and pollution.' Even with therisk of being accused of over-dramatizing the situation,” this dissertation cannot avoid

substantiating the point by citing certain figures At present, the world consumes

approximately 3,800 cubic kilometers of water per year 3 Contrary to popular belief, the

reachable and usable amount of water we have is surprisingly small as compared with the

total amount of water available on earth.” It is estimated that if this trend of consumption

continues, one-third of the countries in the world’s water-stressed regions will face watershortages in the twenty-first century ? Added to the already menace of scarcity is waterpollution Public health Officials attribute almost 80% of illness in developing countries tocontaminated water.° Some 6,000 children die every day from discases associated with lack of access to safe drinking water, inadequate sanitation and poor hygiene ’ The concept ofsustainable development (“CSD”) - a tool believed to be able to address these two problems

while ensuring the appropriate degree of water utilization — has become a necessity

Traditional international water law has not been particularly concerned with the aforesaidproblems Its principal focus, as we will see in this dissertation, has mainly been rules andprinciples for allocating shared watercourses between upstream and downstream states, and

' See Agenda 21 in REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND

DEVELOPMENT, A/CONF 151/26, vol II, Aug 13, 1992 (ch 18.3 stating that the widespread scarcity, gradual destruction and aggravated pollution of freshwater resources in many world regions demand integrated water resources planning and management).

* In the United States in the 1970s, environmentalists were sometimes blamed for economic hardship by

demanding too much, overstating environmental dangers and understating the cost of regulations For this, they were depicted as Litle Chickens, or as little yapping dogs, running around proclaiming that the sky was falling They became so unpopular that were characterized by bumper stickers such as “If you are cold, hungry and out

of work, eat an environmentalist.” See Ronald J Rychlak, Whar is the Most Compelling Environmental Issue

Facing the World on the Brink of the Twenty-First Century: Changing the Face of Environmentalism, 8 Fordharm Envtl Law J 115, 116-7 (1996).

3 See WORLD COMMISSION ON DAMS, DAMS AND DEVELOPMENT, A NEW FRAMEWORK FOR DECISION MAKING,

(Earthscan Publication 2000) at xxix (indicating that current fresh water consumption worldwide has doubled

since 1950) [hereinafter DAMS REPORT].

* About 97.3% of the earth’s water is in the oceans and bodies of saline water Of the remaining 2.7%, which is

fresh water, 2.1% is tied up in polar ice caps and in glaciers, leaving only 0.6% to circulate Ground waters and moisture constitute 22.4% of the global fresh water, but two-thirds of the ground water lies below 800 meters depth which is almost beyond exploitation Thus, for all purposes, humans must depend on the remaining 0.2% found in rivers and lakes The amount of fresh water in lakes and rivers is only 0.009% and 0.0001% respectively, of the world’s total water Even though the majer rivers of the world have very large discharges, the amount of water contained in these rivers at any given time is very small For example, if all the water of allrivers in the world could be pooled together at any given time, the resulting lake would still be smaller than Lake

Ontario — a lake between the northeastern United States and South Canada See N C Thanh & D M Tam,Water Systems and the Environment, in ENVIRONMENTALLY SOUND WATER MANAGEMENT 1,4 (N.C

Thanh & Asit K Biswas, eds., 1990).

? See WCD REPORT, supra note 3, at 7 (stating tha: a nation can be fresh water stressed as a result of uneven

watery distribution and limited access)

* See generally Niveen Tadros, Shrinking Water Resources: The National Securit) Issues of this Century, 17 J.

Intl L Bus 1091, 1091 (1997).

WEHAB Working Group, A Framework of Action on Water and Sanitation, A Working Paper prepared for theWSSD, Johannesburg, South Africa, Aug 2002.

only incidentally have environmental or sustainability concerns served.Ÿ Only for the last fewdecades have efforts been brewed for conceptual changes: finding a new way of managingand regulating freshwater to ensure its longer use and to make it cleaner As the twentieth

century approached its end, international water law witnessed two important events: theapproval of the Watercourses Convention’ and the adjudication of the Gabcikovo-Nagymaros

dispute by the International Court of Justice (*ICJ").'” While the Convention — the first ever

codification of international water law - contindes to reflect the traditional principles of

equitable and reasonable utilization and the non-significant harm, it is well understood among

the drafters “that the classic paradigms of the prohibition to cause harm and that of equitable

utilization are inadequate alone to meet the environmental challenges in point.”'! It remains

true that, sustainable utilization mentioned elsewhere in, and the spirit of balancing water useand protection that permeates, the Convention, “{make] it clear that the imperatives ofconservation and environmental protection must be integrated with the pattern of economic

exploitation of international watercourses for the purposes of equitable use.”!” As the ICJ's

judgment in the case mentioned “goes far towards modernizing the older customary law along

the lines indicated by the 1997 UN Convention `!” these two mutually supportive legal

events clearly establish the firm foundation for the development of international water law in

the twenty-first century,

Specific water issues are not handled globally; they are settled at the basin level." Perhaps

for this reason, the Watercourses Convention is not intended to be more than a framework

which States may use as guidance in designing their own arrangements at the basin level.'°

With -all the «persuasive reasoning of the imperative to balance development and

environmental DIEIBTHUBI the ICJ in the end decided that the parties in dispute should findtheir own solutions.”° It would seem that at this Stage and in the foreseeable future, theexisting regional water treaties will continue to govern water relationships among states

sharing wale podies The Agreement concluded by the four lower riparian states of the

Mekong river!’ — which are all signatories of the Convention — is one of these representative

treaties While taking into account the modern ideas of water use, protection and conservation,

* PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT (2TM ed.)

298-9 (2002) Of 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 approximately 40% of the world’s population (two-thirds of this 40%

live in developing countries) See Christopher L Kukk & David A Deese, Ar the Water's Edge: Regional

Conflict and Cooperation Over Fresh Water, | UCLA J Intl L & For Aff 21, 33 (1996).

* United Nations Convention on the Law of the Non- Navigational Uses of International Watercourses, May 21,

1997, 36 ILM 700 (1997) [hereinafter 1997 Watercourses Convention].

'9 Case concerning Gabcikovo- -Nagymaros” Project (Hungary/Slovakia) 1997 ICJ 7.

'' ATTILA TANZI & MAURIZIO ARCARI, THE UNITED NATIONS CONVENTION ON THE LAW OFINTERNATIONAL WATERCOURSES 19 (2001).

'Š Id at 115.

> Alan Boyle & David Freestone, Introduction, in INTERNATIONAL LAW AND SUSTAINABLE

DEVELOPMENT 1, 6 (Alan Boyle & David Freestone, eds 1999).

'* See Janusz Kindler, Planning and Decision-Making Framework, in Thanh & Biswas, supra note 4, 59 at 62

(indicating that there could be no global water management; this is the matter of each basin or geographical area).

“See details in Chapter Three, Part I.

'ổ Case conceming Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 ICJ 7, para 155 (holding inter alia

that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary measures to ensure the achievement of the objectives of the 1977 Treaty, In accordance with suchmodalities as they may agree upon)

'” Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Apr 5, 1995,

Laos-Cambodia-Thailand-Vietnam, 34 ILM 864 (1995).

IN

and management enshrined in the International Law Commission (“ILC”) Draft Articles, theAgreement designs a specific way of sustainable utilization of Mekong waters Loomingconflicts of national interests, increasing demands of Mekong water, and the worseningenvironment in this part of the world, are all the issues that have to be carefully taken intoaccount in Mekong cooperation In such a context, the Convention itself and the Hungary-Slovakian lesson of the Danube dispute will undoubtediy be of great interest for the Mekong

countries in implementing their cooperation in the manner which both ensures the sustainabledevelopment 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 sources'® make it

imperative that Vietnam attach utmost importance to international cooperation on exploiting

and protecting its shared waters To this end, Vietnam is about to become a party to theConvention, and currently participates in the 1995 Mekong Agreement With the increasingdemands of water for developmental purposes, Vietnam has also to face the problems of watershortage and pollution Designing and implementing a legal framework for sustainabledevelopment of water resources in Vietnam, therefore, is both the requirement to fulfillVietnam ’s international obligations, and its internal imperative

This dissertation undertakes the study of sustainable development of water resources Itbegins with the international arrangements, goes through the regional cooperation on theMekong, and ends with the national water and water-related legislation in Vietnam The topic

‘chosen is novel in four respects First, in light of the latest developments in internationalwater law, it suggests a way of understanding and applying the complex and controversial

concept of sustainable development in international waters Second, it presents a specificinterpretation 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 ofwater resources in Vietnam in a critical manner, and suggests solutions for the existingproblems Finally, arising indirectly from the above three points is the overall theme thatsustainable development of water resources requires the harmonious actions at all theintemational, regional and national, levels While some related points might have beentouched upon elsewhere in legal literature, none of the works known to the author of thisdissertation 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 issu2s of water use and protection Second, it analyzes the CSD as it is applied to international 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 had legal principle in international water law, the CSD can be used as a guiding concept for handling specific water issues and law making and interpretation Third, on the basis of the developed arguments, it examines the general legal framework for sustainable development of the Mekong river, and the role of the Mekong River Commission (“MRC”) in realizing such a framework 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 '§ Sec details in Chapter Five.

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

Towards the stated end, the dissertation contains this general introduction, four major chapters,and a short concluding chapter To set the stage for Chapter Threc, Chapter Two highlightsthe traditional international water law concepts and principles to suggest that they are nolonger in a position to fully address modern issues of water use and protection Chapter Threedeals with the CSD as a guiding concept for settling specific water issues and law making andinterpretation The Gabcikovo-Nagymaros case and the 1997 Watercourses Convention will

be analyzed for this purpose Chapter Four examines the legal aspects of sustainabledevelopment of the Mekong and the role played by the MRC in the implementation of thisobjective Chapter Five addresses the legal framework for sustainable development of waterresources in Vietnam, including its strengths and weaknesses Chapter Six concludes thedissertation

Given the fact that international water and environmental laws are in the process of beingshaped, and the novel and debatable nature of “sustainable development” — the main topic ofthis dissertation — three general qualifications regarding the use of terms shouid be made toavoid confusion

First, the use of “concepts” of territorial sovereignty, integrity, and community of interests inChapter Two is based on the understanding that they have never been widely recognized inInternational water law; were applied only in the water relationship of a very limited number

of states; and were, totally or partly, abandoned by the very states originally advocating them.

The employment of “principles” for equitable and reasonable utilization, and non-significant.harm, as well as procedural principles, follows the approach taken by the first ever

codification of international water law — the Watercourses Convention.”

A second qualification is related to the different terms denoting “sustainable development.” Anew legal phenomenon, a late comer, states’ obsession by the rigidity of the traditional way ofmaking international norms, to name but a few, all have added up to a rather confusing anddiverse use in the general literature of the different terms such as “concept,” “principle” or

“objective” of sustainable development It is far beyond the capacity, and moreover, not themain purpose, of this dissertation to suggest a unified use of 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 referred to when citing the Separate Opinion of Judge Weeramantry because he

specifically indicates this in such Opinion As far -as the Watercourses Convention is

concerned, “objective” is sometimes used in addition to “concept” in order to reflect 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 insubstance Where it is not otherwise indicated, “concept,” “principle,” and “objective” areused interchangeably Whatever term is used, the overall philosophy behind remains that

'? See 1997 Watercourses Convention, supra note 9 (Part II mentioning general principles such as Equitable and

reasoaable utilization and participation, Obligation not to cause significant harm, General obligation to cooperate,

and Regular exchange of data and information) For details on these principles see Chapter Two.

sustainable development is the integration of development and environmental protection; and that it is a guiding concept/principle for law making and interpretation and for addressing specific water issues.

Finally, except for specific cases otherwise indicated, the terms “environmental protection,”

“environment,” and “protection/preservation,” as applicd to water resources, are understood in

a broad sense to cover not only protection of water from pollution, and maintenance of

water’s ecological baiance, but also preservation of water for long term-use The latter, as

indicated in Chapters Three, Four, and Five, include, among other things, the effects andimportance of the integrated basin approach, attitude to dams, and economy of use

a

Chapter TwoEVOLUTION OF INTERNATIONAL WATER LAW CONCEPTS AND PRINCIPLES

I INTRODUCTION

The present system of principles and norms of the law regulating international water usage has

been the result of a long process of development Like legal principles in other areas, those ininternational water law are also the product of time and experience As time passes by, andexperience grows, some of them may become outdated, and must be replaced by those cominglater in time Other laws, in turn, must change to adapt to new circumstances

At the outset, international water law was mainly concerned with navigation Back in thenineteenth century, a number of treaties and agreements with respect to navigational uses ofinternational watercourses were concluded At the turn of the twentieth century, however, withthe increasing demand for water in industry and simultaneous heightened use of water formore than domestic, agricultural and navigational purposes, the first seeds of discord among

riparian states were sown.' The fact that demands for water.often exceed water supplies has

brought about an urgent need of finding mutually accommodating ways for allocating waters

On the international plane, increased interaction and interdependency of nations have forced

international water law to become more responsive to the conflicting interests of riparian

countries.”

—

-An important factor triggering evolution of international water law principles and norms hasbeen the change in human understanding of, and attitude towards, management ofinternational water basins Unilateral, piecemeal and arbitrary utilization of a river basin is nolonger appropriate Natural hydrological processes of a river basin, which exist independently

of artificial political frontiers and Man’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 formulated to regulate water

usage has also had to adapt itself to accommodate changes in the attitudes towards basin

quantitative and qualitative evolution of these concepts and principles, the chapter seeks to

explore: 1) how these concepts and principles have emerged, applied and changed to respond

tơ the fast developing nature of international water issues; 2) whether those existing are ina

position to meet the presently required comprehensive and integrated approach to water and

water related resources management; and 3) what should be done to further the goal of

- 'L TECLAFF, THE RIVER BASIN IN HISTORY AND LAW 113 (1967).

*J.O Moermond & E Shirley, A Survey of the International Law of Rivers, 16 Den J Intl L & Policy

139, 139 (1987).

integrated water management Chapter Two will conclude that the traditional concepts andprinciples in international water law, regardless of having evolved and developed so muchover the time, are not in a position fully to meet the emerging demands of water management

in which both the “developing” and “sustaining” aspects of water must be taken care of; andthat a new approach is required In this connection, Chapter Two will serve as a starting pointfor Chapter Three on the sustainable development of international water resources

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

an analysis of how these CORED and principles are viewed from the perspective of

economically less developed countries? will be presented.

Il THE EXTREME CONCEPT OF ABSOLUTE TERRITORIAL SOVEREIGNTY

1 Historical backgrounds and nature

Under the concept of absolute territorial sovereignty (“ATS”), a riparian state has the right tounlimited uses of the part of a river flowing in the ETE of that state, regardless of the

consequences it may cause to other co-riparian states.” The concept is otherwise known as the

Harmon Doctrine.’ In this section, these two 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 waters of the Rio Grande River,° a boundary river between the two countries,

of which the United States is thế upstream riparian: country.’ Mexico objected that the then

* An international river basin may be shared, among other riparian countries, by two developed countries.

Though being relatively at the same level, one of these two countries may be economically less developed than the other A typical case of this nature is Canada and the United States with almost 5000 km of boundary line where large sections are separated by rivers or shared waters To reflect this situation, Chapter Two, therefore, uses the term “economically less developed countries” instead of the term “developing countries” even though in the majority of cases it is the latter that are referred to.

* Gabriel Eckstein, Application of International Water Law to Transboundary Groundwater Resources, and the

Siovak-Hungarian Dispute Over Gabcikovo-Nagymaros, 19 Suffold Transnat’l L.Rev 67, 73 (1995) See also Moermond & Shirley, supra note 2, at 140.

° Cohen, for example, regards the Harmon Doctrine as the “colloquial name” of the concept of absolute territorial

sovereignty See J E Cohen, International Law and Water Politics of the Euphrates 24 J Int'l L & Policy, 503, 522.

“The Rio Grande River - known in Mexico as Rio Bravo del Norte - is one of the longest rivers in the United

States, beginning at an elevation of 3000 meters in the Rocky Mountains of Colorado, flowing generally

southward approximately 1200 km to the US-Mexico border at El Paso, Texas, and Ciudad Juarez, Chihuahua.

From there, it flows generally southeast forming the Texas-Mexico border for approximately 2000 km until itreache:s its mouth at the Gulf of Mexico near Brownsville, Texas Major United States cities located along theRio Grande include Albuquerque, New Mexico; and El Paso, Laredo, and McAllen, Texas Major Mexican cities

along the Rio Grande are Juarez, Chihuahua; and Nuevo Laredo, Reynosa, and Matamoros, Tamaulipas The

TIVer is recognized for its importance as the major water resource for the Chihuahua Desert region See

<http: //www.cerc.usgs.gov/Irgrei/Irgret.html>

” Already in the second half of the 19" century, the United States faced several problems with respect to

boundary waters with both Mexico and Canada With Canada, a conuoversy relating to the Lake of the Woodshad been pending since 1888, and a long standing dispute concerning the use of the waters of the St Mary andMilk Rivers required resolution In 1902, Canada protested against a proposed United States diversion of the

waters of the St Mary on the ground that it would injure existing Canadian diversion works In 1904, the United

States protested a proposed Canadian diversion of the Milk River A serious disagreement also existed regardingthe use of Lake Michigan waters by the City of Chicago, causing a hazard to navigation to the whole system of

diversion of the Rio Grande in the upper part of the river, though wholly within the UnitedStates territory, adversely effected the mght of Mexico to enjoy the equal use of the river, and

thus was contrary to the existing principles of international law The Mexican claim wasreferred by US Secretary of State, acting on behalf of the President of the United States innegotiations with Mexico, to US Attorney General Judson Harmon for the latter’s opinion.®The focal point of the reference letter was concerned with the “legal rights and obligations” ofthe two countries in the context of US taking water for irrigation from the Rio Grande above

the point where it ceases to be entirely within the United States and becomes the boundary

between the United States and Mexico

Attorney General Harmon maintained that a sovereign state had unrestricted sovereignty withrespect to that part of a river that lay within its territory; and was free to divert and use itwithout liability to a downstream state His opinion stated in relevant part:

The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory No believer in the doctrine of natural servitude has ever suggested one which would interfere with the enjoyment by a nation within its own territory of whatever is necessary tothe development of its resources or the comfort of its people.”

Under Harmon’s view, both international law principles and the then existing treaty betweenMexico and the United States'? made no attempt to create or reserve to Mexico or her citizensany right or to impose on the United States or its citizens any restraints with respect to the use

of water for irrigation.'! In other words, his opinion argued for total freedom to use water of

the river in the terntory of the United States, no matter what consequences such use wouldcause 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 isnoteworthy that these countries, though rather small in number, are scattered throughout

almost every part of the world

(a) United States - Mexico

gs Ho, : 2

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

the Great Lakes and water-ways extending to the Atlantic Ocean For details see, for example, C J CHACKO,

THE INTERNATIONAL JOINT COMMISSION BETWEEN THE UNITED STATES OF AMERICA AND

THE DOMINION OF CANADA 77 (1932); M.E Wolfe, The Milk River: Deferred Water Policy Transitions in

an International Waterway, 32 Nat Res J 55, 55-76 (Wntr 1992); R.W Johnson, The Columbia Basin, inTHE LAW OF INTERNATIONAL DRAINAGE BASINS 167, 186 (A H Garretson et al, eds., 1967); and

Gniffin, Legal Aspects of the Use of Systems of International Waters, S Doc No.118, 85 Congress, 2" Sess 8-9,

16-20 (1958)

® Harmon Opinion (Opinion of US Attorney General Harmon, to the US Secretary of State), Dec 13, 1895,

reproduced in INTERNATIONAL ENVIRONMENTAL LAW REPORTS (vol 1, app |) 543 (Cairo A R.Robb, ed., 1999).

Id at 548,

'0 Treaty of Peace, Friendship, Limits and Settlement, Feb 2, 1848, amended Mar 10, 1848), United

States-Mexico, in THE CONSOLIDATED TREATY SERIES, vol 102, at 29 (Parry, C., ed., 1969)

"Harmon Opinion, supra note 8, at 546

'* In the Rio Grande case, see F J BERBER, RIVERS IN INTERNATIONAL LAW 110 (1959); in the Chicago

relations with Mexico, the concept was contained in the Rio Grande Convention of 1906,!7

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, however, in its relations with Mexico, the United States took a more flexibleapproach, and, in the Treaty concluded between the two countries in 1944, officiallyabandoned the Harmon Doctrine, thereby ending the United States — Mexico dispute over

allocation of waters of the Rio Grande.'” Under the Treaty, the International Boundary and

Water Commission (“IBWC”) is created on the basis of the International Boundary

Commission (“IBC”) established in 1889 The Treaty vests in the IBWC a number of

functions and powers relating to the proportionate distribution of waters of the three river

systems shared by the United States and Mexico A notable provision, which abandoned theHarmon Doctrine by implication, is contained in Article 9 of the Treaty It reads in part asfollows:

[NJo Such diversion, not existing on the date this Treaty enters into force, shall be permitted in either country, until the Section of the Commission in whose country the diversion or use is proposed has made a finding that the water necessary for such diveisioa or use is available from the share of that country, unless the Commission has agreed to a greater diversion or use

It took the United States 40 years, as an upstream state, to come to this agreed position with adownstream state Although subsequent implementation of the 1944 Treaty has not gonewithout difficulties, the fact that the United States relinquished the Harmon Doctrine in atreaty with the state with regard to which the United States first declared the doctrine, is ofconsiderable significance: the doctrine therefore no longer has any basis to exist in either

treaty or practice

(b) United States - CanadaThe Harmon Doctrine was also a governing factor in Canada — United States relations with

respect to their shared waters — and turned out to be a rather interesting story The doctrine is

reflected in Article I of the 1909 Boundary Waters Treaty between the two countries.'°

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

the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of

all waters on its side of the line which in their natural channels would flow across the boundary or into

2

Diversion case, see J SIMSARIAN, THE DIVERSION OF INTERNATIONAL RIVERS 16-18, 26-34, 38 (1939); in the Colorado salinity, see J G LAMMERS, POLLUTION OF INTERNATIONAL

WATERCOURSES, A SEARCH FOR SUBSTANTIVE RULES AND PRINCIPLES OF LAW 261 (1984)

'? Convention Concerning the Equitable Distribution of the Waters of the Rio Grande, May 21, 1906, United

States-Mexico, in THE CONSOLIDATED TREATY SERIES, vol 201, at 182 (Parry, C., ed 1980) {hereinafter 1906 Rio Grande Convention].

i Treaty Concerning the Utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande,

Feb 3, 1944, United States-Mexico, 3 UNTS 313 [hereinafter 1944 Tijuana & Colorado Rivers Treaty].

'Š Clive Lipchin, Water Scarcity, International Security and Resource Disputes The Case of the Tigris

-Euphrates and Jordan Basin River System, <http://www-personal.umich.edu/wddrake/lipchin.html> visited May

4, 2000 :

lồ Treaty Relating to Boundary Waters, and Questions Arising between the United States and Canada, Jan 11,

1909, Great Britain.-United States, 36 Stat 2488, TS 548 [hereinafter 1909 Boundary Waters Treaty]

boundary waters.

Subsection two, nevertheless, states that

11s agreed that any interference with or diversion from their channel of such waters on either side of the boundary, shall give right to the same right and eniitle the injured parties to the same legal remedies

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 to cases expressly covered by special agreement between the

parties thereto.

While subsection one clearly reflects the influence of the Harmon Doctrine,’’ subsection two,

however, considerably mitigates the Doctrine in tone to the point where subsection two can besaid to neutralize the effect of subsection one Canadian and American negotiators of theTreaty would recall that section two, to a certain extent, was a concession to the Canadian fearabout uncertainties concerning the use of shared waters, in the event that one of the twoparties would take undue advantage of section one.'* It is apparent that even back in 1909, theHarmon Doctrine, at least in the Canada ~ United States water relationships, was not applied

in its full strength The history of water relationships between these two countries indicatesthat the United States has never applied the doctrine in practice;'? and even within the United States, the doctrine was not accepted.” ,

(c) Other states

The concept of ATS over river waters was also reflected, though in a scattered manner, intreaties concluded elsewhere in the world Countries that referred to the concept were

: - 25Austria,’ Chile,” Federal Republic of Germany,” and Ethiopia.’ A notable case is India” in

'’ The doctrine was rather troublesome to Canada Shortly after the Boundary Waters Treaty was signed, Sir

Wilfrid Laurier, the then Prime Minister of Canada admitted: “If I were to follow my own inclinations at thepresent time, we should decline the treaty Article II has always seemed to me a very serious source of trouble,but in view of the other concessions, I have been disposed to accept.” GIBBONS PAPERS (vol 1), in Public

Archives of Canada.

'® Already then, the Canadians interpreted subsection two enthusiastically, considering it a considerable detour’

from the Harmon doctrine in subsection one Thus, when asked about Article II, Mr Pugsley, the CanadianMinister of Public Works, said in a debate in the House of Commons: “It is provided that the people of Alberta [aprovince of the Dominion of Canada] shall have the same rights to proceed in the courts of the United States as

they would have to proceed in the courts of Alberta if the diversion had taken place in Alberta, that is to say theUnited States will have a perfect right to divert the water yet that diversion must be subject to the right of the

person lower down the stream, whether in the United States or Canada, to the same right of action against theupper riparian proprietor as if both people were subject of the same country.” Canadian House of Commons

Debate, 6 December 1910, col 871.

'® For a thorough account of the United States-Canada boundary water relationships see Le Thanh Long, The

Canada- United States International Joint Commission: Possible Lessons for an Institutional Mechanism in theLower Mekong River Basin, LL.M thesis, available at the Library of the University of Calgary Law School(Calgary, Canada).

“In a debate on the 1944 Tijuana & Colorado Rivers Treaty (supra note 14) before the Senate Committee on

Foreign relations in 1944, the view that was based on the Harmon Doctrine that Mexico was not entitled to water

from the Rio Grande was vigorously contested by an assistant to the Legal Advisor of the Department of State.See D P O'CONNELL, INTERNATIONAL LAW (2nd ed., vol 1) 559-60 (1970)

*! Tn successive rivers, see J Lipper, Equitable Utilization, in THE LAW OF INTERNATIONAL DRAINAGE

BASINS 15, 21 (A H Garretson et al, eds., 1967)

2 In the Rio Mauri case, see H SMITH, THE ECONOMIC USES OF INTERNATIONAL RIVERS 69-70

its water relationsnips with Pakistan” and Bangladesh.” A few scholars, past and present,

have supported the concept.””

Even recently, in 1997, during the adoption of the 1997 Watercourses Convention by theUnited Nations General Assembly (“UNGAY”), countries which voted against its adoption,pointed out that the Convention failed to affirm the principle of territorial sovereignty of a

watercourse state; and that a planned measure requesting any degree of consent of other

watercourse states concerned would go against this principle.” Though it is apparent that

“territorial sovereignty” is different from “absolute territorial sovereignty,” the mere demandthat the former be affirmed as a clear principle in the 1997 Convention does not seem to be inline with the requirements of modern uses and practices in respect of internationalwatercourses.

Ít is also worthy of note that where there is no cooperative arrangement on a water 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 basin 2 shared by Turkey, Syma 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 withSyria in 1975.*' Turkey began to build the Keban Dam on the Euphrates in 1966 andcompleted construction in 1974; and Syria also launched a publicity campaign against

(1931) Sẽ

* This was the reasoning of Germany at the conclusion of the Treaty Concerning the Course of the Common

Frontier, the Boundary Waters, Real Estate Property Situated Near the Frontier, Traffic Crossing the Frontier on Land and via Inland Waters, and Other Frontier Questions, Apr 8, 1960, FRG-Netherlands, UN Doc SVLEG/SER B/12, Treaty No 212 See also J BRUHACS, THE LAW OF NON-NAVIGATIONAL USES OFINTERNATIONAL WATERCOURSES 44 (1993)

° In relation to the Blue Nile in 1957 and 1978, see B A Godana, AFRICA '§ SHARED WATERRESOURCES: LEGAL AND INSTITUTIONAL ASPECTS OF THE NILE, NIGER AND SENEGAL RIVER SYSTEMS 35-36 (1985).

> In che case of Indus water dispute, see S M Sikn, “Comments on the First Report of the International

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

*6 See Treaty Regarding the Use of Waters of the Indus, Sep 19, 1960, India-Pakistan, 419 UNTS 126, art 4,

para 14 [hereinafter 1960 Indus Waters Treaty].

° See Agreement on Sharing of the Ganges’ Waters, Nov 5, 1977, Bangladesh-India, ILM 103 (1978), pmbl

[hereiaafter 1977 Ganges’ Waters Agreement]

*8 See for example, Getachew Aberra, There is Neither Customary International Law Nor a Treaty that Entitles

Egypt to Nile Waters Within Ethiopian Territory

<http://www.telecom.net.et/-walta/conflict/articles/article837.html> visited May 10, 2000 The author, inter alia, interestingly argues that the Harmon Doctrine is just a misnomer; and that what Harmon said is simply a restatement of the principle of terntocial sovereignty in general, including persons and things located in the territory of a state In the author's

view, with respect to each segment of a successive international river, within the sovereign territory of a state, the

territorial state has necessarily absolute and exclusive sovereignty on that segment of the river The right of the

lower ciparian state depends on the comity of, and the bilateral agreement with, the upper riparian state

*9 See speeches by representatives of Turkey and China in the United Nations, UN GAOR, 51" Sess., 99"

Plenary Meeting, UN Doc A/51/PV.99 (1997) at 4-5 & 6

© The River Euphrates (2735 km) -s in Southwest 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 The Tigris river flows fromSoutheast Turkey through Iraq, then joins the Euphrates to form Shatt-al-Arab See RANDOM HOUSE

WEBSTER’S COLLEGE DICTIONARY 461 & 1395 (1991) :

°' Jbrhim Kaya, The Euphrates-Tigris Basin: An Overview and Opportunities for Cooperation under

International Law, <http://www.ag.arizona.edu/OALS/ALN/aln44/kaya.html> visited May 9, 2000, at 3.

3 Conclusions

Several points may be extracted from the foregoing review of the concept of ATS over river

waters within a state’s boundaries

First, subject to the exceptions noted above, there has been a very negative attitude towards,and a general rejection of, the concept of ATS over river waters within a state’s boundaries bymost members of the international community Since it has come into existence, the concept

was regarded as chaotic” and has been Opposed by most experts who have written on the

subject ** Furthermore, Support is neither found in case law Recently, in the

Botswana/Namibia case,” a separate opinion by Judge Koojimans once more confirmed the rejection of the concept.*°

Second, the actual application of the concept has been rather flexible as we have seen in thecase of the United States in its riparian relations with both Mexico and Canada Elsewhere,

the concept is scattered, fractional, and limited to a few states.”” Even where it is claimed to

exist, the concept has often been used to make a unilateral demand claiming actual interests

related to the various uses of a watercourse.”Š Often, it has been concealed by an abstract term,

on the one hand, or used as a negotiations tactic, on the other.”” The concept’s practical

enforcement has not agen free from uncertainty or, even more, intentional — as opposed to

accidental — ambiguity.*° l

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

This is true in all cases regardless of whether the riparian state in question is a less developed

or more economically advanced state In other words, the level of economic development of a

state has nothing to do with the state’s claim of the concept of ATS Application of theconcept does not depend on the economic strength or development of a state; but rather, on

the geographical location of the state The only accurate determining factor as to whether a

state will apply the concept of ATS is whether it is upstream or downstream as opposed towhether it is a developed or a developing state

* Id.

* See O'CONNELL, supra note 20, at 557.

TM See, for example, SMITH, supra note 22; Van Alstyne, International Law and Interstate River Disputes, 48

Calif L.R (1960); CHEN, THE NON-NAVIGATIONAL USES OF INTERNATIONAL RIVERS (1965); SIR

ROBERT JENNINGS & SIR ARTHUR WATTS, OPPENHEIMS'S INTERNATIONAL LAW (ø" ed,, vol I)

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

5 Case Concerning Kasikili/Sedudu Island (Botswana/Namibia), Dec 13, 1999, 39 ILM 310.

a8 Referring to art 5 of the United Nations Convention on the Law of the Non-Navigational Uses of International

Watercourses, May 21, 1997, 36 ILM 700 (1997) [hereinafter 1997 Watercourses Convention], and art IV of the Helsinki Rules on the Uses of International Rivers, Aug 20, 1966, 52 ILM 484 (1967) [hereinafter 1966 Helsinki Rules], Judge Koojimans was of the view that both instruments had clearly rejected the doctrine; and that the

doctrine had never had a wide following among states See Case “oncerning Kasikili/Sedudu Island

(Botswana/Namibia) Dec 13, 1999, 39 ILM 310 (Separate Opinion of Judge Koojimans).

” BRUHACS, supra note 23, at 44.

* Id.

ed

9 fat at 45,

ỆFourth, even though the concept has not been recognized in international law and was seldomacted upon,” there is still a practical difficulty associated with it nowadays That is, concernfor a nation’s sovereignty is often a major obstacle in achieving integrated development ofinternational rivers.** It would seem that this tendency even lingers today, and elsewherecontinues to affect the actual process of planning and carrving out water cooperation projects.

Finally, because of its restrictive nature, the concept is far from suitable compared to themodern approach of treating an international river basin as the common property of countriessharing it It has, however, given birth to an antithetical concept that will be addressed in thefollowing part

[H 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 ofATS.” In sharp contrast to the latter, the former is a tool used by lower riparian countries with

respect to control and use of the waters.” In a nutshell, the concept suggests that every state

must allow rivers to flow their natural course; and an upstream country may not divert thewater, or interrupt, or artificially increase or diminish, its flow Since respect of the natural

flow of a river is paramount, alteration of such flow implies a violation of the integrity of a

country’s territory.”° In effect, lower riparian countries have a general right to veto water rights of upper riparian nations.*°

Unlike the concept of ATS, the ATI concept has not been much written about in water lawliterature Those who have touched upon the concept have rendered very little, if any,

support ‘7 In the international community, the concept has never been embraced

diplomatically nor asserted in any adjudication."”

“' LAMMERS, supra note 12, at 36].

* R H Clark, “Issues and Constraints Affecting the Development and Protection of Shared Water Resources” in

Department of Technical Cooperation for Development, (UN Secretariat), Institutional Issues in the

Management of International River Basins: Financial and Contractual Considerations - Natural Water Series

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

3 BRUHACS, supra note 23, at 43.

“O'CONNELL, supra note 20, at 557.

“UN Department of Technical Cooperation for Development, (UN Secretariat), “Legal and Institutional Aspects

of River Basin Development” in UN Department of Technical Cooperation for Development, Natural ResourcesWater Series No 20 - River and Lake Basin Development - Proceedings of the UN Interregional Meetings on |River and Lake Basin Development with Emphasis on the Africa Region, Addis Ababa, Ethiopia Oct 10-15,

1988 (New York: United Nations, 1990), at 137 [hereinafter Warer Series No 207.

as Eckstein, supra note 4, at 74.

*7 Moermond & Shirley, supra note 2, at 143.

“8 Donald J Chenevert, Application of the Draft Articles on the Non=Navigational Uses of International

Watercourses to the Water Disputes Involving the Nile River and the Jordan River, 6 Emory Invl L Rev 495,

504 (1992),

2 Practical uses and claims

In spite of its unfairness, some lower riparian countries, however, have tried to enforce theconcept of ATI These countries, though very few in number, are for example like Egypt,

which claimed the entire natural flow of the Nile in several legal arrangements (this will be

addressed in detail below) and in claims made during the meeting of the Nile Commission in1925,” and ae Arab countries which argued for a requirement of prior consent in the Jordan River đispute "5

A typical case where the concept of ATI reached its zenith is the Nile River case Egypt, thelowermost riparian country of the Nile, for which the importance of the river is aut Nilus, autnthil (either the Nile or nothing), has fought at any cost, come hell or high water, to keep theconcept alive Understandably, Egyptian civilization.— one of the earliest civilizations in the

world — is inseparable from the lower basin and delta of the Nile Needless to say the Nile has

been, and is, of life-and-death importance for Egypt, a desert country, which would not andCannot exist without the great river The river, as probably any other river basin, is perhaps thearchetype of the usual historical pattern of international river basin development where earlyand significant development took place in the delta and lower basin, and thousands of years

later, did development in the upper basin.”

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 Egypt Already in 1891, in the Protocolsigned between the United Kingdom and Italy — then acting respectively for lower and upperbasin countries in the Nile basin — the Italian Government undertook not to construct any

work that might substantially modify the flow of the Nile.°” The spirit of this provision — the

concept of ATI that the flow of the Nile in its lower reaches was not to be affected — wassubsequently maintained in the Treaty between the United Kingdom and Ethiopia of 1902,”

the Treaty between the United Kingdom, France and Italy of 1906,” and several other

diplomatic instruments.”

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

See Lipper, supra note 21, at 18.

°° LAMMERS, supra note 12, at 305-7 For a detailed analysis of water disputes in the Jordan Basin see S.

Libiszewski, Water Disputes in the Jordan Basin Region and their Role in the Resolution of the Arab-Israeli Conflict, Environment and Conflicts Project (ENCOF# Occasional Paper No 3, Aug 1995, http://www fsk.ethz.ch/encop/13en13-ch0.htm visited May 25, 2000.

*! A H, Garretson, The Nile Basin, in THE LAW OF INTERNATIONAL DRAINAGE BASINS 256, 264-5 (A.

H Garetson et al, eds., 1967).

*? Protocol for Demarcation of Respective Spheres of Influence of the United Kingdom and Italy in Eastern

Africa, Apr 15, 1891, United Kingdom Italy, art 3, in THE CONSOLIDATED TREATY SERIES, vol 175, at

67 (Parry, C., ed., 1978, French text)

** Treaty Relative to the Frontiers between the Anglo — Egyptian Sudan, Ethiopia and Entrea, May 15, 1902,

United Kingdom-Ethiopia- Italy, in THE CONSOLIDATED TREATY SERIES, vol 191, at 180 (Parry, C., ed.,

1980).

a Treaty between the United Kingdom, France, and Italy, Dec 13, 1906, art IV, GBTS, No 1 (1907).

*3 See for example, Exchange of Notes between Italy and the United Kingdom of Dec 14-20, 1925, 50 LNTS

282 (1925)

°° Exchange of Notes in Regard to the Use of Nile Waters for Irrigation Purposes, May 7, 1929, Great Britain —

Egypt 93 LNTS 43.

14

Agreement stated that

Save with the previous agreement of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile and its branches, or on the lakes from which it flows, So far as all these are in the Sudan or in countries under British administration, which would, in

such a manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water

arriving in Egypt or modify the date of its arrival or to lower its level.

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 and more reasonable 1959Nile Waters Agreement,” where the water of the Nile is allocated rather equitably among Nile River Basin countries.Š

While having been reflected in a few international legal instruments, the concept of ATI isrejected in case law In the Lake Lanoux case,” France proposed to divert some water fromLake Lanoux into another river basin to increase the head of water for a hydroelectric power

plant Even after France undertook to return an equivalent volume of water 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 international watercourses only on condition of aprior agreement between the interested states cannot be established as a custom, even less as a

general principle of law.”*!

3 Conclusions

Like the concept of ATS, the concept of ATI, except in occasional cases, failed to reach actualenforcement It remained a mere concept, not a customary rule, which during more than 100years, has occasionally, and unilaterally been claimed by certain riparian countries It hasproven unable to cope with the problems of sharing international waters On the contrary, bysupporting extreme position opposing the concept of ATS, it tends to fuel disputes in

international basins rather than to settle them;°” and as a result, does not promote international

harmony and peace

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

7 Se? generally Agreement for the Full Utilization of the Nile Waters, Nov 8, 1959, UAR - Sudan, 453 UNTS

51.

"8 Dị Seyed Mohammed Hosni, in his discussion of the Nile Regime, is of the view that the 1959 Agreement

confirms the idea that the parties drifted further towards the concept of equitable shares In the Agreement, the

concepts of established rights and prior appropriation [a form of the concept of territorial integrity} found littlerecognition, perhaps no more than an element to be taken into account in determining what should be an

equitable share rhis view of Dr S M Hosni is quoted in Garretson, supra note 51, at 289

°° Lace Lanoux Arbitration (France v Spain), (1957) 24 ILR 101 Lake Lanoux is in France but is also the source

of the Carol River flowing into Spain.

© JENNINGS & WATTS, supra note 34, at 585.

6 T ace Lanoux Arbitration, (France v Spain), (1957) 24 ILR 101 at 130.

* Litiszewski, supra note 50.

international jurisprudence.® Due to its myopic nature, the concept has no place in themodern approach towards international river basins as common property shared by ripariannations.

IV THE NON-SIGNIFICANT HARM PRINCIPLE

1 Origin and types

The non-significant harm principle (“NSHP”) takes its origin in the maxim sic utere tuo utalienum non laedas, [hereinafter sic utere’ tuo] meaning “so use your own so as not to injure

another’s property,”TM i 1S a common law concept which is based on sources of Roman law 65

The term dates back to four centuries ago in a judgment made by an English court at a timewhen air pollution was a growing problem in England." Scholars suggest that the term, underthe name of nuisance, even emerged since the dawn of English common law where there was

a cause of action designed to prohibit or rectify unreasonable interference with the use and

enjoyment of property rights.°”

Under Baath common law, there are two types of nuisance: public nuisance® and private nuisance.” At early common law, sic aa tuo provided for strict liability for any interference

with property use — private nuisance.” Sic utere tuo, however, became a substantial obstacle

to economic development, especially in the era of rapid: population growth andindustrialization.’' Courts therefore began to give increasing effect to the property owner's right to beneficial use that was once secondary to the right against interference.”

2 The principle in international law and international water law

How the common law concept of sic utere tuo became a customary rule in international law

known as NSHP can probably be explained by the proposition that principles of law

recognized by civilized nations can be a source of international law ” Consensus has been

reached that NSHP obligates states not to use or allow the use of their territory for acts

53 Diversion of Water from the River Meuse (Netherlands v Belgium) 1937 PCIJ (Ser A/B) No 70 (June 28).

= * BLACK’S LAW DICTIONARY 1690 (1999).

® SM Schwebel, Third Report on the Non-Navigational Uses of International Waters, UN Doc A/CN.4/348,

para 116, footnote 229 _

Ế Alfred’s Case (1611) recited from E Brubaker, Property Rights in the Defense of Nature (1995),

<http: /www.nextcity.com/EnvironmentProbe/pridon/index.html>

TRY Rychlak, Common Law Remedies for Environmental Wrong: the Role of Private Nuisance, 59 Miss L.J.

eat (1989); E Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 Va L Rev 1299 (1977)

8A public nuisance is an unreasonable interference with a right common to the general public (US Restatement

[Second] of Torts, para 821B, 1977), and includes such activities or conditions as obstruction of or damage to

highways, maintenance of a house ofprostitution, deteriorated buildings, air or water pollution or noise For more

details see M P Barret, Jr., Chapter 14: The Theory of Nuisance as an Impediment to Mining Operations,

<http://www.emlf.org /books/Vol14/ch14v14.htm>

private nuisance is an unreasonable interference with another`s interest in the private use and enjoyment of

land, US Restatement [Second] of Torts, para 821D, 1977.

JL Lewin, The Silent Revolution in West Virginia's Law of Nuisance, 92 W.Va.L.Rev 235, 244 (1990).

” See Barret, supra note 68.

Lewin, supra note 70, at 251.

73 See Statute of the International Court of Justice, June 26, 1945, 59 Stat 1031, TS No 993, 3, art 38(1)(c).

16

comtrary to the rights of other states.” This is so because the maxim “is applicable to relations

of states not less than those of individuals.”” In sharp contrast to the concept of ATS, the

N.SHP is orten regarded as being close to international neighborhood law that limits the use of

SO vereignty;ˆ ” and has established itself i in both international legal instruments and judicial

decisions

Of the major multilateral camvenlions enshrining the NSHP, important are: the 1923 GenevaConvention on Hydraulic Power; ” the 1974 Nordic Environmental Protection Convention; Š the 1979 Convention on Long-Range Transboundary Air Pollution;” the 1989 Convention on the Control of Transboundary MOVarients of Hazardous Wastes and their Disposal;*° and the

1997 Watercourses Convention."! The numerous bilateral treaties and agreements providing

for the principle can roughly be — into four groups: 1) those containing prohibitions or

restrictions affecting water drainage;** 2) those containing prohibitions and restrictions on withdrawal of water;” 3) those concerning prohibitions and/or restrictions on the changing or water level; and 4) those concerning general provisions against causing damage,Ì > especially

” See, for example, Gretta Goldenman, Adapting to Climate Change: A Study of International Rivers and their

Legal Arrangements 17 Ecology L.Q 741, 779 (1990); Moermond & Shirley, supra note 2, at 140; and D.

yo NTER er al, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 345-9 (1998).

* See 1974 OECD Council Recommendation c (74) 224 concerning Transfrontier Pollution (Annex title B),

OECD, OECD and the Environment, 1986 at 142.

"® LAMMERS, Supra note 12, at 570-72.

” Convention Relating to the Development of Hydraulic Power Affecting Mere than One State, and Protocol of

Signature, Dec 9, 1923, 36 LNTS 77 The Annexed Protocol to the Convention reads “the provisions of the Convention did not in any way modify the responsibility or obligations imposed on States as regards injury done

by the construction of works for the development of hydraulic power, by rules of international law.”

8 See Nordic Environmental Protection Convention, Feb 19, 1974, Denmark-Finland-Norway-Sweden, 13 ILM

391 (art 3 providing for individual standing to pursue cases involving transboundary harm caused by othersignatory countries)

”® Convention on Long-Range Transboundary Air Pollution, Nov 13, 1979, ILM 1442 (1979) (the “fundamental

principles” providing for the prevention of transboundary harm caused by air pollution produced by Convention Signatories).

*° Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Mar 22,

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

a Supra note 36, art 7 This article of the Convention will be addressed in detail in Section 3 below.

°* See for example, Protocol for the Demarcation of the Respective Spheres of Influence of Italy and the United

Kingdom in Eastern Africa, Apr 15, 1891, Italy — Great Britain, art 3, in THE CONSOLIDATED TREATY

SERIES, v3i 175, at 67 (Parry, C., ed., 1978, French text); Treaty Relative to the Frontiers between the Anglo—

Egyptian Sudan, Ethiopia and Enitrea, May 15, 1902, art 3, in THE CONSOLIDATED TREATY SERIES, vol.

191, at 180 (Parry, C., ed 1980); Agreement Modifying the Agreement Signed at Brussels on May 12, 1894, Relating to the Spheres of Influence of Great Britain and Congo in East and Central Africa, May 9, 1906, Great Britain — Congo, art III, in THE CONSOLIDATED TREATY SERIES, vol 201, at 182 (Parry, C., ed., 1980); Exchange of Notes in Regard to Use of Waters of the Nile Rivers for Irrigation Purposes, May 7, 1929, Great Britain - Egypt, Note 1,93 LNTS 43; 1944 Tijuana & Colorado Rivers Treaty, supra note 14, art 9; and Treaty Relating to Cooperative Development of the Water Resources of the Columbia River Basin, Jan 17, 1961 United States - Canada, 542 UNTS 244, art XIN.

83 Eor example, Convention to Regulate the Hydroelectric Development of International Section of the River

Douro, Aug L1, 1927, Spain - Portugal, art 2, 82 LNTS 113; and Agreement Regulating the Withdrawal ofWater from Lake Constance, Apr 30, 1966, Austria - FRG ~ Switzerland, arts | & 3, 620 UNTS 191

** For example, Minutes of Meetings Held by Delegations of Yugoslavia and Greece from Mar 23-30, 1956 to

Discuss the Water Level of Lake Dojran, Section HI, Mar 31, 1956, Greece — Yugoslavia, UN Doc ST/LEG/SER B/12, Treaty No 222; and 1909 Boundary Waters Treaty, supra note 16, art 2

F—-: —

| even À NỘI | l7 — LẺ as

agreements with respect to frontier waters.*°

The principle was covered as early as in 1911 in the Institute of International Law (IIL)'sMadrd Declaration.*’ Of the other non-binding documents that mention the principle, the most important are: the 1966 Helsinki Rules;** the 1972 UN Declaration on the Human Environment (Principle 21);” the 1980 International Law Association (“ILA”) Resolution onRegulation of the Flow of Water of International Watercourses;” and the 1992 RioDeclaration on Environment and Development.”'

The NSHP finds firm acceptance in international judicial decisions It was mentioned as early

as in 928 in the Island of Palmas case brought before the Permanent Court of Arbitration Inthis c¿se, the sole arbitrator made it clear that the exercise of the right of territorial sovereigntyWas accompanied with the duty to protect the rights of other States; and that territorial :

sovereignty of one State could not exclude the activities of other States.””

In Trcil Smelter Arbitration,” a case concerning air pollution but has relevance to waterpollution by analogy, the Arbitration Tribuna! established hy the United Sietes and Canada to

adjudicate the case reasoned:

Under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein when the case is of serious consequence and the

‘injury is established by clear and convincing evidence.

In the :foresaid passage, the Tribunal explained the obligation of non-significant harm and the

conditions for invoking it: in no case does a state have the right to use or permit use of itsterritor’ in a manner to cause damage to others;”" and the damage/injury serving as basis for

® For exumple, under the Agreement Concerning the Use of Water Resources in Frontier Waters, Mar 21, 1958,

Czechosovakia — Poland, 538 UNTS 89, neither party to the Agreement may, without the other’s consent, commemne activities which could affect the water utility of the other party; Agreement Concerning Water

Econom: Questions Together with the Statute of the Yugoslav — Hungarian Water Economy Commission, Aug 8,

1955, Yigoslavia — Hungary, UN Doc ST/LEG/SER B/12, Treaty No 228, provides for a cooperative arrangemnt in developing water resource exploitation projects which may affect the quantity and quality of the water in he watercourse.

36 1909 Foundary Waters Treaty, supra note 16, art 2 5

*7 TIL, Madrid Declaration on International Regulations Regarding the Use of International Watercourses for

Purposesother than Navigation (1911) in M.M.4VHITEMAN, DIGEST OF INTERNATIONAL LAW (1964) The Declration prohibits over exploitation of a river which substantially affects the utility of the river to another

State.

*8 See 19:6 Helsinki Rules, supra note 36 The Rules are mostly concerned with equitable utilization, prohibition

of causin; damage can only be found in the part concerning pollution

® Declaraion of the United Nations Conference on the Human Environment, June 16, 1972, II ILM 1416

(1972) [hreinafter 1972 Stockholm Declaration].

ILA, sẻ P Report, 1980, at.362 et seq.

*' Rio Delaration on Environment and Development, June 14, 1992, 31 ILM 874 (1992) [hereinafter 1992 Rio

Declaratin].

* Island ¢ Palmas Case (Netherlands v US) (1928) 2 RIAA 839.

** Trail Snelter Arbitration (US v Canada) (1941), 3 RIAA 1911.

In Solchurn v Aargau & Aargau v Solothurn (1900 & 1915 respectively), reproduced in CAIRO A R.

ROBB (e.), INTERNATIONAL ENVIRONMENTAL LAW REPORTS (vol 1) 467 (1999), the Federal Court

of Switzeland established that exercise of the sovereign right excludes both usurpation of the right and

18

compensation must be of serious consequence and be established by clear and convincing

95

evidence

In the Corfu Channel case, another case conducted in a different context, but has relevant

points, the International Court of Justice (*ICJ”) observed that there were “general and wellrecognized principles” of international law concerning “every State’s obligation not to allow

knowingly its territory to be used for acts contrary to the rights of other States.” In the Lake

Lanoux case, the Tribunal also alluded to the principle prohibiting the upper riparian statefrom altering waters of a river if it would cause serious injury to downstream riparian states byacknowledging that there is a rule prohibiting the upper riparian state from altering the waters

of a river in circumstance calculated to do serious injury to the lower riparian state, eventhough such rule od not apply to the case in question because France did not alter the waterlevel of the Carol.””

Simular reasoning is also found in the 1996 Legality ofthe Threat or Use of Nuclear Weaponscase The ICJ made a point directly concerned with a general obligation to ensure thatactivities within the jurisdiction and control of one State shall respect the environment ofother States as follows:

The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment The existence of the general obligation of States to ensure that activities within their jurisdiction and conirol respect the environment of other States or of afeas beyond national control is now part of the corpus of international law relating to theenvironment.”*

3 Analysis of the non-significant harm principleUnder Principle 21 of the 1972 Stockholm Declaration, States have,

in accordance with the Charter of the United Nations and principles of international law, the sovereign

right to exploit their own resources pursuant to their own environmental policies, and the responsibility

to ensure that activities within their own jurisdiction or control do not cause damage to the environment

of other states or areas beyond the limits of national jurisdiction.”

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

of regulation Thus, having incorporated into itself the legal principles formulated in the Trail

Smelter and the Corfu Channel cass, the principle, from the initial term of “territory,” has gradually embraced the “environment” as in the Legality of the Threat or Use of Nuclear

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

encroachment on the right of others.

® See State of Missouri v State of Illinois, 200 US 496, 521, in CAIRO A R ROBB (ED.),

INTERNATIONAL ENVIRONMENTAL LAW REPORTS (vol 1) 485 (1999); and State of New York v State

of New Jersey, 256 US 296, 309, reproduced in CAIRO A R ROBB (ED.), INTERNATIONAL

ENVIRONMENTAL LAW REPORTS (vol 1) 524 (1999) In these cases the Courts demanded that violation complained of and damage caused be of serious magnitude and established by clear and convincing evidence.

%6 on Channel Case (Merits) (U.K v Albania) 1949 ICJ 4, at 22 (Apr 19).

nạ Lake Lanoux Arbitration, (France v Spain), (1957) 24 ILR 101 at 129.

„ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226, para 29 (July 8).

* 1972 Stockholm Declaration, supra note 89.

19

general recognition as it has been repeated not only in resolutions taken by international

- 100 : :organizations ~ but also has been incorporated in the text of several multilateral international

treaties of a general nature.!°!

With respect to water uses, the NSHP receives its full development in the 1997 Watercourses

Convention Article 7 of the Convention entitled “Obligation not to cause significant harm,”provides:

1 Watercourse States shall, in uulizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.

2 Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 [equitable and reasonable utilization and participation] and 6 [factors relevant to equitable and reasonable utilization}, in consultation with the affected State, to

Lo is - 102 elinunate or mitigate such harm and, where appropriate, to discuss the question of compensation.

Three points in the aforesaid Article are worthy of note: a) defining and quantifying the term

“significant” would be the preconditions for invoking the obligation provided for in theArticle; b) a rather narrow scope of the significant harm principle; and c) the “soft” tone of thelanguage used to provide for the obligation A closer look into these points will be presentedbelow

(a) Significant harm

There is a requirement concerning the degree, or seriousness of harm: the harm that isprohibited must be “significant.” A problem, as admitted by the ILC in its commentaries on

the same term used in still another Draft Articles,’ is that the meaning of the word

“significant” is rather ambiguous Under the Commission’s view, “significant” is something

more than “detectable” but needs not be at the level of “serious” or “substantial; and the

effec: of the harm must be measured by factual and objective standards.’ The term

“significant” in Article 7 of the 1997 Convention was hotly debated at the UNGA 51* Session,

which adopted the text of the Convention Pakistan, for example, strongly objected to the term

by stressing that it lacks precision, and that one party’s definition of “significant” would bedifferent from that of another.'”

100 Cj GA/RES/2996/XXVI, The Charter of Economic Rights and Duties of States, arts 3 & 30,

GA/RES/328/KXIX, GA/RES/34/186 See also the UN Water Conference, Action Plan, para 90 (UN Doc

E/CONF,70/29).

'91 See, for example, Convention for the Protection of the World Cultural and Natural Heritage, Nov 18, 1972,

art 6(3), 11 ILM 1358 (1972); Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircrafts, Feb 15, 1972, pmbl., 11 ILM 262 (1972); Convention on Long-Range Transboundary Air Pollution Convention, Nov 13, 1979, pmbl., 18 ILM 1442 (1979); and Convention of the Law of the Sea, Dec 10, 1982, arts 193 & 194, 21 ILM 1245 (1982).

0? See 1997 Watercourses Convention, supra note 36.

TLC, Report of the Working Group on International Liability for Injurious Consequences Arising out of Acts

not Prohibited by International Law, (1996) Y.B Int'l L Comm'n., vol Il, UN Doc A/CN.4/SER.A/1996/Add_I (Part If), Annex | [hereinafter ILC, Réport on International Liability].

1 Sec id at 108,

'® Up GAOR, 51" Sess., 99" Plenary Meeting, UN Doc A/S1/PV.99 (1997) at 5.

20

As a matter of fact, terms of more or less the same nature, such as “significant,” “substantial”

r “appreciable,” are frequently used in both international and national legal instruments.!%Rather often, one difficult-to quantify word is used to define another For example, for a harm

to be “appreciable,” there must be “real impairment of use,” and for an injury to arise to thelevel of “appreciable” or “substantial,” the injury must have “significant” and consequentialeffects upon public health, economic productivity, or the environment of another State.'°’ In

the same fashion, Commentaries on Article 10 of the Helsinki Rules suggest that an injury is

considered “substantial” if it materially interferes with or prevents a reasonable use of thewater, 8

It should be clear from the preceding paragraph that the criterion which is used, to a largedegree, lacks scientific, technical and mathematical precision An explanation for this is that it

is hardly possible to devise a formula that fits every problem arising out of water uses in

various international watercourse systems As a result, legal standards, with the necessary

flexibility and faculty of forming and amending themselves with the endless variety of cases

and developments are preferable to hard and fast formula.'°”

Since a universal formula is impossible, a factual determination of what is considered to be

“significant” depends on the circumstances of a given case and the period in which such

determination is made Determination has to be made in each case; and involves more factualconsiderations than legal ones A particular deprivation, at a particular time might not beconsidered “significant” because at that specific time, scientific knowledge or humanappreciation for a particular resource had not reached a point at which much value wasascribed to that particular resource But some time later that view might change and the same

harm might then be considered “significant.”!!°

Various factors, though technical, should be taken into account in determining if a harm issignificant Thus, from the point of view of damage/harm caused, effects may take variousforms Apart from water uses in a broad sense, the building and operation of engineeringstructures such as dams for water regulation, barrages, on-shore installation, hydraulic powerplants and sluices, to name but a few, are also included in the group of actions causingdamage.''' Activities that cannot be qualified as water utilization may also cause harm to the

utilization regime of the international watercourse concerned.''“ These could be deforestation

6 See, for example, Operative Paragraphs 1 & 2 of GA Res 2995 (XXVII) adopted on Dec 15, 1972 Concerning Cooperation between the States in the Field of Environment, in GAOR, 27” 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

of Environmental Problems in the Border Area, Aug 14, 1983, Mexico — United States, art 7, TIAS 11269,

1352 UNTS 67, 22 ILM 1025 (1983) The United States has also used the word “significant” in its domestic lawdealing with environmental issues See American Law Institute, Restatement of the Law, Sec 601, Reporter’s

Note 3 at 111-112 :

SẾP Goldenman, supra note 74, at 780.

9 ILA Report of the 52" Conference, Comments to the Helsinki Rules on the Uses of the Waters of

International Rivers (1966), reproduced in A H GARRETSON er al teds.), THE LAW OF INTERNATIONAL

DRAINAGE BASINS (1967), App A, at 796.

' Evensen’s First Reportin UN Doc A/CN.4/367, para 31.

ILC, Report on International Liability, supra note 103, at 13.

'' BRUHACS, supra note 23, at 126 Details on the negative impacts of water works such as dams will be

further provided in various parts of the remaining chapters in this dissertation.

Mê Id.

tO

or erosion brought about in a water system `!” In addition, water utilization may harm interestsbeyond this domain: large water storage basins and artificial lakes are sources of epidemics,

influencing the weather and increasing the danger of earthquake.''* Various other types of

damage could occur For example, the banks, the riparian sites, structures and installations

concerned to water use and management may suffer damage, and the scenic attractions of awatercourse may change, flora or fauna may be destroyed; and the damage may be of sporadic

or continuous nature.''® All of the factors mentioned in this paragraph will help to define notonly a possible harm itself, but also the degree of the harm, especially when the issue iswhether or not it is “significant.”

(b) The narrow scope of the non-significant harm principle

The scope of the NSHP in Article 7 of the 1997 Watercourses Convention is rather narrow inthat it covers only current users; it does not address potential users This gap could be easilyabused, and may place economically less developed countries in a disadvantageous situation,especially when environmental harm is claimed Thus, under the pretext that a current user

may suffer significant environmental harm caused by a proposed activity on a river by a

-potential user, '!° the current user may deny another potential user’s access to the river Thispractice may become especially burdensome for economically less developed countries which,due to engaging in developmental activities later than the more advanced ones, normally fallwithin the group of potential users The problem is that in order to obtain financing from thedonors’ community, the potential user proposing an activity often, if not to say in all cases,has to bear the burden of proof that the activity is environmentally sound.'!’ KG ~

113 : : : - a

For a reflection on the impact of deforestation on the water regime of a river basin see Chapter Three, Part III, Section 3.

''* Tt should be noted that while natural scientists have not been able to fully prove the causal relationships of

dams/reservoirs and earthquakes, a number of studies have indicated the increasing probability of dams’ causing tremor activities Hiroshi Hori cites two Japanese studies to substantiate this point First, Professor Seiji Ohtake

of Tohoku University studied records of 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 areasaround eight of 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 impoundment of water in the reservoir, they became unusually frequentafter impoundment Second, Professor Shunzo Okamoto of Tokyo University, while admitting that it cannot beproved conclusively which conditions might cause earthquakes, has concluded that earthquakes are likely to beinduced, among other things, when the depth of the reservoir exceeds 100 m; or a result of reservoir water

impoundment See HIROSHI HORI, THE MEKONG: ENVIRONMENT AND DEVELOPMENT 222-3 (2000)

For details of the cited studies see M OHTAKE, SEIS}{ICITY CHANGE ASSOCIATED WITHIMPOUNDING OF MAJOR ARTIFICIAL RESERVOIRS IN JAPAN (Tokyo, 1984); and Shunzo Okamoto,Earthquakes Resistance of Concrete Gravity Dams, in INTRODUCTION TO EARTHQUAKESENGINEERING (Tokyo, 1984) Elsewhere in the world, seismic activities related to dams/reservoirs were also

observed The main earthquake in Greece in 1966 had its epicenter under the reservoir of the Kremasta dam.Likewise, 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 Thanh & D M Tam, Water System and the Environment, in

ENVIRONMENTALLY SOUND WATER MANAGEMENT 1, 15 (N.C Thanh & Asit K Biswas, eds, 1990)

"'S BRUHACS, supra note 23, at 128.

H6 Sharif S Elmusa, Harmonizing Equitable Utilization and Significant Harm: Comments on the 1997 ILC

Convention, paper presented in Conference “Water, Dispute Prevention and Development: South Perspective”

Washington D.C., Oct 12-13, 1998, <http://www.american.edu/maksoud/water98/present7.htm> at 5

HH Several authors hold the view that pushing it to an extreme, the NSHP could equal to an absolute integrity

claim No wonder why lower riparian states so often 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

a9

A solution for the above - mentioned discriminatory thrust of the NSHP may be broaden the

definition of the NSHP to make it applicable not only to the reduction of water withdrawals ofprior users, as it is currently understood, but also the denial of use of new claimants.!!8 Ifbroadened, the NSHP would not only allow the co-riparian nations to weigh the respective

harms they each incur and divide the burden equitably — but it would also harmonize, andeven makes identical — the NSHP and an equitable and reasonable utilization principle that

gives precedence to socioeconomic and environmental needs The reason is that significantharm could only be assessed by measuring the potential impact of a state’s actions on the

other state’s socio-economic and environmental needs, or vice - versa.'!”

(c) “Soft” language used to provide for obligations

A typical feature of the obligation not to cause harm in Article 7 is that it is provided for in arather “soft” way: States shall “take all appropriate measures” to mitigate harm, and wherepossible, will “discuss the question of compensation.” In essence, the obligation provided here

is that of “due diligence” rather than a sharp-edged cne The ILC made it clear that whendrafting this article, the Commission was based, among other things, on a conclusion “thatStates must exercise due diligence to utilize a watercourse in such a way as not to cause asignificant harm.”!?2 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 conflict.’!

The “soft” tone of Article 7 should be read in the broader context of the 1997 WatercoursesConvention as a whole; and can be explained by the mutually win-win nature of theConvention 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 ILC.'** This is probably the first ever

multilateral legal instrument concerning water usage that received full and rather active

participation by developing countries.'” 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 favors more highly developed states at the expense of less developed ones,

particularly as lower basin states tend to develop earlier and faster than upper basin states See, Joseph W.Dellapenna, Treaties as Instruments for Managing Internationally-Shared Water Resources: Restricted

Sovereignty vs Community of Property, 26 Case W Res J InUl L 27, 40 (1994) [hereinafter Dellapenna, Treaties as Instruments]; and Charles Bourne, Principles and Planned Measures, 3 Colo J Int'l Envtl L & Pol'y

65, 92 (1992)

Hồ Elmusa, supra note 116, at 8.

H9 ry

129 See ILC, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, (1994) 2

Y.B.Int'] L Comm'n 103, U.N Doc A/CN.4.SER.A/1994/Add.1 (Part 2) [hereinafter ILC, Draft Articles].

'*! Eor a more thorough analysis of the obligation in Article 7 and its relationship with the provision on equitable

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

'# For a brief history of drafting the Convention see ILC, The Law of Non-Navigational Uses of International

Water Courses (1998), <http://www.un.org/law/ilc/guide/8_3.htm> `

“3 This is one of the reasons leading to the inclusion in the Preamble of the phrase that the Parties to the

Convention are “[a]ware of the special situation and needs of developing countries.”

23

4 Conclusions

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

a customary rule of international water law This is evidenced in the large number of legalinstruments — both of the “hard” and “soft” nature — providing for the principle, and by theJudicial decisions by the ICJ and other international tribunals which, to one degree or another,have applied the principle

Environmental damage is an additional component that has later been incorporated in the

principle The NSHP in its current definition remains germane to environmental protectionespecially in the downstream countries.'“* While being a powerful tool of environmentalists,especially those in developed countries, the principle may pose obstacles to developmentalprojects 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 “environmentaldamage,” which has not yet been sufficiently proven from a scientific perspective, mayprevent needed developmental projects from taking place

No matter how hard one tries, the use of terms that are difficult to quantify, such as “necessarymeasures” and “significant harm” seems to be inevitable in securing the merits of the NSHP

It is therefore important that a continuing spirit of cooperation among states concerned bemaintained to keep the principle alive and feasible What is clear, however, is that the NSHP,since its beginning, has significantly diminished the effect of the concepts of ATS and ATI,and is currently becoming a nrajor principle of modern international water law

V THE PRINCIPLE OF EQUITABLE AND REASONABLE UTILIZATION

1 Rationale

The NSHP addressed in Part IV above has one obvious weakness: the prohibition on causingdamage to another state — a negative approach which has been effective only in cases of lowfrequency and limited utilization.'*° With the dynamic development of water usage andmanagement, the-requirement of a more flexible and refined mechanism for the actualadjustment and accommodation of the water utilization rights among individual states hasbecome a central problem, and the sic utere tuo rule with its prohibitive approach is notcapable of resolving it A solution may be found in the “equitable and reasonable utilization

principle” (“ERUP”) — a principle of a moze flexible and positive nature than the NSHP.'* In

a broader perspective, the ERUP is regarded as almost identical with the general principle of international law that limits territorial sovereignty !”” In a narrower sense, the ERUPrepresents a two-faceted principle: while a watercourse state has an obligation to use awatercourse in an equitable and reasonable manner vis-a-vis other states sharing the samewatercourse the watercourse state also has a right to an equitable share of the uses and benefits

of an international watercourse running through its territory '”Š

'* Elmusa, supra note 116, at 7.

'5 BRUHACS, supra note 23, at 157.

6 Eagleton, Use of Waters of International Rivers, Can Bar Rev 1018, -1021(1955).

al Lip2er, supra note 21, at 18 & 23-38.

Mes ¢ McCaffrey, An Overview of the United Nations Convention on the Law of the Non-Navigational Uses of

Changes of water uses in both nature and scope per se are another reason leading toemergence of the ERUP as a workable principle in international law As human understanding

of the natural processes of river basins became deeper and more comprehensive, a need forchange in the way of managing river basins has arisen The ERUP has come into being in

response to the increasing emphasis on the hydrological unification and integrated approach of

management of international watercourses and the resulting increased convergence of interests

of the riparian states.'””

Although as a whole the ERUP is a rather recent principle in international water law, itsconstituent elements, especially the concept of “equity”, take origin in familiar, and mucholder, jurisprudential concepts

2 Equity in general international law

As an old and familiar jurisprudential concept, equity finds its root in early histories of many

societies of which the Chinese, Roman and Hindu are among the notable ones.'*° In Roman

law, equity was understood as an extension of natural justice and a means of correcting specific law; and in the common law system, the concept was further developed and became

-an independent source of rules -and principles to decide cases on the basis of “fairness” as -an

alternative or supplement to more rigid and harsher rule of the common law.'*! Modern uses

of equity vary, depending on each particular case.'** In international law, equity has never

been explicitly expressed as a general principle The concept itself, however, has evolved overcenturies 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 fairess ”” This view 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.'TM*

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

International Watercourses, 20 J Land Res & Envtl L 57, 60 (2000) [hereinafter McCaffrey, An Overview].

9 BRUHACS, supra note 23, at 158.

' CHRISTOPHER R ROSSI, EQUITY AND INTERNATIONAL LAW, A LEGAL REALIST APPROACH

TO INTERNATIONAL DECISION-MAKING 22 (1993).

''G Radbruch, Justice and Equity in International Relations, The New Commonwealth Institute Monograph

Series B, No 2 (London: Constable & Co Ltd., 1936) at 2 For a detailed analysis of origin of development of the concept in civil law and common law see ROSSI, id at 21-40.

3ˆ There could be as many as six different meanings of the terms: |) fairness and impartiality; 2) the body of

principles constituting what is fair and right; 3) the recourse to principles of justice to correct or supplement the common law; 4) the system of law originating in the English Court of Chancery which provided an alternative to the common and statute law; 5).a right or interest recognized by a court of equity; and 6) the right to decide matters in equity See BLACK’S LAW DICTIONARY 560 (1999).

'8 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, (vol Two) 109 (1995) [hereinafter

ENCYCLOPEDIA] Under Aristotle's view, the lawgiver could draft laws in general terms only, and, as a results,

laws could’ not attain their intended purpose in every case Accordingly, in special cases the law needs to be

tempered by equity in order to achieve a just result.

9u, GROTIUS, THE RIGHTS OF WAR AND PEACE, Book 2, Chapter 16, Section 26.

ĐŠ In addition to equity as intra legem, international law theorists also distinguish equity as praeter legem (a

means of filling a gap when the law is silent) and as contra legem (equity may contradict the law) See

ENCYCLOPEDIA, supra note 133, at 109

NoCn

in a few ICJ cases concerning delimitation of maritime boundaries In the North SeaContinental Shelf case (1969), the concept was argued to be used by the Court as a corrective

measure to temper the gross unfairness that sometimes results from the application of strict

law.'°° The Netherlands and Denmark, obviously being motivated by the great benefit ofhaving a convex coast, argued for application of the equidistance principle provided for in

Article 6 of the 1958 Continental Shelf Convention.'*’ Application of this principle would be

greatly disadvantageous for Germany ~ a non-member of the 1958 Convention — whose coast

was concave The Court rejected the Dutch and Danish argument on the grounds that

equidistance had no inherent link either to the nature of the shelf or to any principle ofadjacency, and that the related provision of the 1958 Convention never became a customary

rule for Germany '°Š The Court then wrote that delimitation of the shelf by the parties must be

“affected by agreement in accordance with equitable principles taking account of all the

relevant circumstances.”'*’ Thus, while not distancing itself from the command of Article 6 ofthe 1958 Convention, the Court completed an exercise in corrective equity by introducing anotion of fairness into the way to delimit the continental shelf in question 9 Equity as applied

in this case was later quoted time and again in Continental Shelf (Libya/Malta).'"' In the

Frontier Dispute (Burkina Faso/Mali), the ICJ not only made it clear that the Court applied

infra legem, but also gave a definition of the latter.!"*

3 Equitable and reasonable utilization of international waters

While, as noted above, equity has established itself as a firm jurisprudential concept in

international law, the concept of “reasonableness” does not seem to have the same standing.Historically, it is not clear how the adjective “reasonable” has come to co-exist with

“equitable” to form the principle of equitable and reasonable utilization in international water

36 Experts suggest three major approaches to equity as a mode for allocation of scarce resources In the first

mode, corrective equity plays an important, but fringe, role to rectify cases where strict application of the law seems unfair (as will be indicated in the case cited in the main text) In the second mode, equity as broadly conceived displaces strict law but is still rule-based, evolving into a set of principles for the accomplishment of

an equitable allocation In the third mode, common heritage equity serves a dual creative function: determining the conditions for exploitation and ensuring conservation of humankind's common patrimony Thomas M Franck

& Dennis M Sughrue, Symposium: The International Role of Equity-as-Fairness , 81 Geo L.J 563, 572 (1993).

'” See Convention on the Continental Shelf, Apr 29, 1958, 499 UNTS 311 (art 6 providing for the use of the

equidistance principle in sharing continental shelf).

ĐŠ North Sea Continental Shelf (Denmark, FRG & Netherlands) 1969 ICJ 3, paras 38-46 & 68-81 (Feb 20).

39 Id para 101 The Court also named, among others three circumstances such as (1) the geology of the shelf in

question, (2) the desirability of maintaining the unity of natural resources deposits, and (3) the proportionality

which it defined as the attainment of a reasonable relationship between the extent of a state’s continental shelfand the length of its coast line, see id paras 96-99 l

'!9 Franck & Sughrue, supra note 136, at 578.

'41 See Continental Shelf (Libian Aran Jamahiria/Malta), Judgment, 1985 ICJ 13, paras 45, 46 & 48 (June 3) (the

IC] inter alia confirming the necessity of applying equity not as a matter of abstract justice, but as a rule of law,and stating that in applying such concept in a case, various considerations of the case should be taken intoconsideration) The Court actually did so in its reasoning to reach the final decision in the case between Libya

and Malta +

12 See Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 1986 ICJ 579, para 28 (Dec 22) (the ICJ

stating that it“ will have regard to equity infra legem, that is, that form of equity which constitutes a method ofinterpretation of the law in force, and is one of its attributes;” and that “[h]ow in practice the {Court} will _approach recourse to this kind of equity in the case will emerge from its application throughout [the judgment

in the case] of the principles and rules which it finds to be acceptable.”

26