Riassunto esame Diritto internazionale, Prof. Tanzi Attila, libro consigliato The consolidation of International water law, Tanzi atti

The consolidation of international law: A comparative analysis of the UN and UNECE water conventions

Chapter 1: Basic rationale and principles of the international water law process

The international water law process was consolidated in the two conventions. Since its inception, the international law process has been characterized as a gradual limitation of absolute sovereignty claims over transboundary waters, for the benefit of all countries concerned. Such claims were based on the theory of absolute territorial sovereignty, also known as the Harmon doctrine or the theory of absolute territorial integrity. Upper riparians claimed absolute freedom to utilize transboundary waters, regardless of the impact of their actives on downstream states, which in return relied on the latter theory to substantiate the claim to an unaffected natural flow of waters for the upper riparian countries. The incompatibility of such absolute doctrines could only lead the states involved to intensify their divisive approach to the shared natural resource in question. So, these "anarchic and obstructive" theories were abandoned in favor of a more moderate stance. One such example is the well-known dispute between Mexico and United States over the Rio Grande.

The limited territorial sovereignty approach arose from a meta-juridical and factual analysis carried out under different methodologies, with the idea that collective and coordinated use and management of transboundary watercourses through cooperation between co-riparians is the key to their optimal utilization by all parties concerned and is preferable to unilateralism. This approach has been translated into international law through the "community of interests". These decisions have consistently established the dual nature of the states’ power over its territory, a power that involves not only rights but duties. For example, the state’s duty to exercise exclusive authority over its territory while respecting the sovereignty of other states by abstaining from acts that would cause significant damage to their territory, which is combined with the principle of the sovereignty equality of states (which implies that all concerned states enjoy within their territory equal rights in the use of such waters).

It appears that the basic principles of international law simply adjust and apply to the regulation of competition claims over transboundary waters the international constitutional principles of sovereign equality and good faith or, in this context, the principles of the non-abuse of rights and good neighborliness. These are the conceptual underpinnings from which the three basic rules of the law of international freshwaters have emerged as codified in intergovernmental and non-governmental instruments under the auspices of the International Law Association, the ECE, and the UN Commission; namely, each state’s duty not to cause significant harm to other riparian states in the use of an international watercourse; the principle that entitles and requires each state to make equitable and reasonable utilization of transboundary waters; and the general obligation of cooperation between watercourse states as a means to proper implementation of the aforementioned substantive rules and principles.

Combining the original economic rationale of the international law process with environmental concerns

International water law has long addressed the purely economic concerns expressed through competing claims of co-riparians regarding apportionment of the quantity of water running through an international watercourse. Scientific research in the last decades of the twentieth century showed that the uses of a watercourse could affect processes related to other natural elements, such as soil degradation and desertification, deforestation, and climate change. Both conventions have updated international water law by incorporating some of the major developments in environmental law prior to the 1992 United Nations Conference on Environmental and Development particularly with regard to the sustainable development principle and its implications. This principle expresses the interdependence of environmental concerns and economic goals. For example, an environmentally unsustainable use of a watercourse will become economically unsustainable as well.

This implies the merging of international environmental law and international economic law, regardless of whether the latter is based on a bilateral treaty or other source of international law. The interdependence of environmental and economic factors concerning the use of a watercourse also derives from the interdependence of the quantity and quality of the water running through it. A utilization that leads to a significant reduction in the water flow will inevitably affect its quality by diminishing its self-purification capacity. For example, the use of water for agriculture or recreation is prevented, reduced, or renewed significantly more costly where another use, such as for industrial purposes, significantly pollutes the same water. This is all the more true of uses that meet vital human needs, which take priority over other factors in assessing the equitable and reasonable character of a given use.

Economic versus environmental concerns in the two conventions

In light of these general considerations, it is important to assess how each of the two conventions integrates environmental concerns into the original economic and water-quantity focus of the international water law process. The ECE Water Convention focuses primarily on water quality issues, while the UN Watercourse Convention is more concerned with the apportionment of water. It can also be argued that the difference between the two conventions is simply one of emphasis or drafting.

Environmental concerns in the ECE

ECE has been at the forefront in promoting a shift from the traditional focus on equitable apportionment in the international regulation of transboundary waterways to an integrated approach to water management and protection at both the transboundary and the domestic level. Such an approach also encompasses the relationship between water and other environmental components of the ecosystem of watercourses. In the 70s and 80s, this approach was reflected in a number of ECE watercourse declarations and recommendations that were based on a geographical approach to their scope which was no longer determined solely by political and jurisdictional borders, but primarily by ecosystem boundaries.

Since the end of the 1980s, in anticipation of the outcome at the global level of the 1992 Rio Conference, ECE has increasingly considered environment and development as two sides of the same coin; its policy recommendations and guidelines have focused primarily on sustainable water management and protection of the environment against pollution from point and non-point sources. Despite their non-legally-binding nature, and building on the above instruments, the ECE Water Convention was adopted on 17 March 1992 and entered into force on 6 October 1996. The obligation to prevent, control, and reduce transboundary impact is a clear element of the convention.

On the one hand, this general obligation has been appropriately codified as one of the constituent elements of the equitable use principle while, on the other, its codification was carefully crafted in order to combine it with the ecosystem approach and the precautionary polluter-pays and sustainable development principles. In order to complement this due diligence obligations, the convention provides for the preparation of an environmental impact assessment, the establishment of water-quality objectives, the adoption of water-quality criteria and, ultimately, the development and implementation of best environmental practices for the reduction of nutrient and hazardous substances inputs from different sources. The incorporation into the convention of these principles, now consolidated in the body of contemporary law and largely applicable to international water law, must be viewed in the context of the date of the convention’s adoption, three months prior to the Rio Conference.

Through its institutional framework nature, the convention led to further specific regulation that addresses environmental concerns linked to the basic human right to health and to adequate standards of living with the adoption of the 1999 Protocol on Water and Health. The main aim of the protocol is to protect human health and well-being through improved water management, including by protecting water ecosystems and preventing, controlling, and reducing water-related disease; in addition to enhancing the focus on vital human needs, it complements significantly the convention’s provisions on environmental protection.

Environmental concerns in the UN Watercourse Conventions

There have been mixed interpretations of the manner in which the United Nations Watercourses Convention and the Commission have addressed environmental issues. The question of the pollution of international watercourses was taken up by the Commission at the outset of its work on the topic in accordance with governments’ replies to a questionnaire submitted to states in 1974. The specific subject of pollution and that of environmental protection of international watercourses are dealt with extensively in the reports of the first two Special Rapporteurs on the topic, Steven Schwebel and Jens Evensen.

At its thirty-fifth session in 1983, the Commission recognized that Chapter IV of the outline prepared by Special Rapporteur Evensen "dealt with a vital and important issue relating to international watercourses". It was not until 1988 that it held an extensive debate on the issue at the instigation of the new Special Rapporteur, Stephen McCaffrey. This led to the adoption of four draft articles (1990) on uses that may cause harmful pollution. The first of these draft articles sets out the general obligation to protect and preserve the ecosystems of international watercourses. Paragraph 3 of the commentary to draft article 22 states that "the obligation to protect the ecosystem of international watercourses is a general application of the principle of precautionary action" stressing that "together, protection and preservation of aquatic ecosystems help to ensure their continued viability as life-support systems, thus providing an essential basis for sustainable development".

This shows that the Commission was quite willing to link its work on the topic with the environmental principles and concepts that were being developed within the Rio Conference process at the time. This draft articles remained untouched throughout the Commission’s second reading in 1994 and, in 1996, came before the General Assembly, where a number of delegations felt that the environmental slant of the future convention should be further enhanced. Other delegations strongly objected to the inclusion in the convention of any reference to environmental protection and sought to reduce to a minimum, or to eliminate entirely any reference to the ecosystem protection of international watercourses. The notion of the ecosystem became one of the main problems of contention during these negotiations. The importance of international watercourses as part of the natural environment was recognized and given a weight equal to that of their uses; article 20 makes an expression reference to the notion.

Article 1, paragraph 1, of the United Nations Watercourses Convention provides that it applies to "uses.. for purposes other than navigation and to measures of protection, preservation, and management related to the use of ... watercourses and their waters". Such an approach was much needed, when the commission began its consideration of this topic, more than 20 years before the complementing of its work, the main focus in the field was on the suitable apportionment of freshwater. Indeed, article 1, paragraph 1, can be said to provide the basis for the structural link between the core principles of equitable utilization and no-harm, on the one hand, and the water quality issues, on the other. It should be noted that the articles contained in Part IV address not only pollution but also water quantity, including apportionment. Conversely, the equitable utilization and no-harm rules govern not only questions of water apportionment but pollution as well.

The Commission’s third Special Rapporteur on the topic, McCaffrey, has noted that, because the convention is a framework agreement "one cannot expect either the level of detail or the degree of "Greenness" that one might find in a bilateral or regional instrument. In fact, during the negotiations, the often-competing claims of co-riparians to specific international watercourses added to the divergences normally addressed in international multilateral environmental treaty-making. The environmental standards that were ultimately established in the convention after painstaking negotiations can be considered to represent the minimum standards below which any subjective interpretation or application of an equitable regime for watercourse utilization would be open to a legitimate claim of illegality.

The above reading of the UN Water Convention with respect to environmental concerns will be corroborated and developed through an integrated interpretation of its relevant provision in the light of the ECE Water Convention.

Chapter 2: The physical scope of the conventions

Assessment of the physical scope of the two conventions entails identifying the geographical areas and hydrological and geographical entities that fall within the regulatory scope of each instrument.

1) ECE

Article 1, paragraph 1, of the ECE Water Convention, defines "transboundary waters" as "any surface or ground waters which mark, cross or are located on boundaries between two or more states: surface waters include waters collecting on the ground in a stream, river, channel, lake, reservoir or wetland." While sea waters are excluded, Article 2, paragraph 6 requires the party to protect "the environment of transboundary waters or the environment influenced by such waters, including the marine environment". The latter provision takes an integrated approach to determination of the physical scope of the convention based on the concept of the catchment area, which, extending beyond the mere water body, includes "other elements" of the environment such as air, land, fauna and flora to the extent that they interact with the relevant transboundary watercourse or international lake.

The determination and definition of "groundwater" for the purpose of assessing the physical scope of the ECE Water Convention will be addressed separately below in comparison with the United Nations Watercourses Convention and the related process within the framework of the Commission’s work. The value of an integrated approach based on the above provision is confirmed and further enhanced by the convention’s ecosystemic approach. As stated in the Guide to Implementing the Water Convention, "although the convention deals with transboundary waters, the term "ecosystem" in this provision is not necessarily limited to transboundary ecosystem nor does it exclude other than aquatic and water-related ecosystems. This broad approach to the scope of the ECE Water Convention is further confirmed in functional terms by the definition of "transboundary impact", which becomes the focus of prevention, control and reduction through the instrument: "Transboundary impact" means any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity.

No qualifier precedes the term "environment" as the object of the adverse effect that the "area under the jurisdiction of another party" is presented as the source of the potential adverse effects. This broad approach is expressly articulated in the same paragraph of article 1: "Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape, and historical monuments or other physical structures or the interaction among these factors."

2) The UN Water Convention

The UN Watercourses Convention establishes the geographical and hydrological scope of its rules using the term "watercourse" defined as "a system of surface waters and groundwaters constituting by virtue of their physical relationship in a unitary whole and normally flowing into a common terminus". There is no denying that this language is restrictive by comparison with the overtly integrated and ecosystemic approach taken by the ECE Water Convention and with the drainage basin concept followed by the Institution de Droit International and the International Law Association. Extensive broader interpretations of the above definition emerge from a contextual reading in the light of the ECE Water Convention.

The watercourse system terminology of the UN Waters Convention is broader than the traditional definition of "watercourse" as limited to the main arm of the river; it includes groundwaters, the "hydrologic system composed of a number of different components through which water flows, both on and under the surface of the land. These components include rivers, lakes, aquifers, glaciers, reservoirs, and canals." A contextual interpretation of the term "watercourse" in conjunction with other relevant provisions of the United Nations Watercourses Convention substantiates the conclusion that the drainage basin area falls within the scope of its rules using the ecosystem adopted in Part IV. The drainage basin area also comes into play in the UN Watercourse Convention as the area in which the harm-causing activity is carried out. Although the equitable utilization and no-harm principles are set out in Article 5, 6, and 7 without explicit reference to activity that may take place in the basin, contextual support for an extensive interpretation may be found in Part IV and in the express reference to protection in Article 5.

While this provision refers to the international watercourse as the hydrological entity whose pollution should be prevented and makes no express reference to the geographic area constituted by the drain.