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

The consolidation of international water law

Introduction to international water law

International water law has, over time, limited its absolute sovereignty claims over transboundary waters. The claims represented the absolute territorial sovereignty theory, Harmon theory, or absolute territorial integrity theory. These are different theories that have the same results when applied in different states. Riparian states claimed absolute freedom to utilize transboundary waters regardless of the impact on downstream states that believe in their right to have unaffected water. Absolute claims lead to unjust results, are anarchic, and obstructive theories. Therefore, many of the states that invoked absolute sovereignty arguments later abandoned such arguments. An example is the Rio Grande dispute (USA v. Mexico 1895) where the US invoked the Harmon doctrine while Mexico invoked the absolute territorial integrity. The dispute settled in 1906 with a treaty recognizing respective rights over the Rio Grande. The main idea is that collective and coordinated use and management of transboundary watercourses are key to their optimal utilization (community of interests foundation of the basic principles of international water law).

A state has a dual power over its territory: duty to exercise authority over its territory and a duty to respect other states' sovereignty (sic utere tuo ut alienum non laedas). This is, of course, connected with the principle of sovereign equality of states.

Principles and cases in international water law

In its landmark decision in the River Oder case, the permanent court of justice stated that there is equality of riparian states in the use of the whole course of the river (though there is no preference). In the Gabcíkovo-Nagymaros case, the international court of justice stated that the principle of community of interests in navigable rivers has extended to non-navigable rivers too, meaning that the collective and coordinated use of watercourses is possible not only in navigable watercourses (evident by the adoption of the Convention of '97 on the law of non-navigational uses of international watercourses by the general assembly).

In the 1957 Lake Lanoux case (France v. Spain), the arbitral tribunal stated that according to the rules of good faith, the upstream states have to consider also the other interests involved.

So, in a few words, international water law principles are based on good faith, sovereign equality, non-abuse of rights, and good neighborliness. On this basis, develop the three main principles of international water law:

• Each state's duty not to cause harm to other riparian states.
• Each state's right to make reasonable and equitable utilization of transboundary waters.
• General obligation of cooperation.

Combining economic and environmental concerns

International water law has for a long time considered only the quantity of water for the economic concern, without considering the quality of the water, using it as a "sink into which to dump wastes," which is very important too for the economic concern. Moreover, the use of watercourses could affect natural elements such as soil degradation, desertification, deforestation, and climate change. So, it is proven that environmental and economic concerns are related (international environmental law + international economic law). Another important relationship is between quantity and quality because the pollution of a watercourse reduces the availability of the water. Environment + economy; quantity + quality.

For example, an environmentally unsustainable use of a watercourse will become economically unsustainable as well. These norms have to be considered not only in new activities but also in activities begun in the past (Gabcíkovo-Nagymaros case). We can see another example in the Pulp Mills case where the court in 2010 stated that there is a need for a balance between the right to use the river and the duty to protect it from any damage.

Economic vs environmental concerns in the two conventions

The two important conventions we are now talking about are the ECE Water Convention and the UN Watercourses Convention. These two integrate the environmental concerns in the economic and quantity concerns (environment + economic + quantity). The first convention is more interested in the quality of water, while the second one is more concentrated on the apportionment of water.

Environmental concerns in the Economic Commission for Europe water process

Since the 60s, the main focus of the ECE was the development from the traditional apportionment to an integrated approach to water management and protection. In the 70s and 80s, this approach reflected in a number of ECE declarations and recommendations. In the 90s, the ECE increasingly considered environment and development very connected, in fact its policy started to focus primarily on sustainable water management and protection from pollution. This is what brought to its Charter in 1989 based on water management and the code of conduct on accidental pollution of transboundary inland waters of 1990. ECE instruments are non-binding but authoritative. The ECE convention was finally adopted in 1992 and entered into force in 1996, providing for water quality objectives and criteria. This convention obviously brought to more specific regulation such as the 1999 protocol on water and health protecting human health and well-being.

Environmental concerns in the United Nations Watercourses Convention

The question of the pollution was taken up in 1974 and at its 35th session in 1983 the commission recognized that the Chapter IV about pollution dealt with a vital issue. However, only in 1988 the convention held an extensive debate on the issue. This led to the adoption in 1990 of four articles on uses that may cause harmful pollution. The general obligation is to protect and preserve the ecosystem applying the principle of precautionary action. Eventually, equal importance was given to the environment and use of the environment. Also, the environmental standards ultimately established represent the minimum standards below which it is illegal.

• Art 1: Scope of the convention, which is the protection, preservation, and management of the uses of watercourses.
• Art 5: Sustainable concept.
• Arts 5-7: Principles of equitable utilization and no-harm + water quality issues.
• Art 20: Protection and preservation of ecosystems.

Transboundary waters in ECE Water Convention

Art 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. Sea waters are excluded from the convention, but their environment is protected, such as any environment, including marine, air, land, fauna, flora, human health, soil, water, climate, landscape, historical monuments, physical structure, cultural heritage, socio-economic conditions. Its ecosystemic approach leads to the protection, control, and reduction of transboundary impacts and for the conservation and restoration of the ecosystem.

Watercourses in the UN Watercourses Convention

A watercourse is a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus. Both conventions address (a) activities that may affect the watercourse and (b) activities that constitute uses of the watercourse that may affect elements of the environment outside it. This requires the relationship between the water ecosystem and the ecosystem of the environment.

Groundwaters

Groundwaters are for sure an element of the ECE Water Convention (by definition of transboundary waters), but they are an element of the UN Watercourses Convention only if they are surface-related. The difference between surface-related and non-related stays in the relationship between groundwaters and surface because it is needed an assessment in order to determine the connection to the surface, and if there is no connection, we have a confined groundwater. On a legal ground, what concerns is whether it is needed a different regulation for different types of groundwater. The answer is that the principles that are applicable to surface waters are applied to all types of groundwaters too.

The international law commission's draft articles and the economic commission for Europe model provisions

International Law Commissions focused on the topic of shared waters in 2002 and in 2008 adopted the draft articles on the law of transboundary aquifers. These draft articles refer to aquifers that are permeable water-bearing geological formations underlain by a less permeable layer. Also, in these articles there is no reference to sovereignty over geological formations. Worldwide concerns regarding water scarcity, demographic growth, and climate change inspired the ECE Model Provisions on Transboundary Groundwaters adopted in 2012, in which they maintain the focus on the subjects of the draft articles making easier their implementation. Also, since groundwaters are the majority of global water supply, it felt right to fill the gaps in existing agreements: 2007 Convention on the Protection, utilization, recharge, and monitoring of the Franco-Swiss Genevese Aquifer (Annemasse region, Genevese communes, Viry commune vs republic and canton of Geneva); 2010 Guarani Aquifer Agreement (republic of Paraguay, republic of Argentina, republic of Brazil vs eastern republic of Uruguay).

Articles 5 and 7 of the UN Watercourses Convention

Articles 5 and 7 of the UN Watercourses Convention are the result of the debate on whether the equitable utilization principle takes priority over the no-harm principle or vice versa. The ECE Water Convention, on the other hand, took another approach. In article 2, about the no-harm rule, it states that parties shall prevent transboundary impact, and that they have to take all measures to ensure that waters are used in a reasonable and equitable way (no-harm rule + equitable principle). In fact, rather than giving more importance to the no-harm rule, these principles are together. Often, in fact, the two conventions complement each other.

Obligation to prevent transboundary impact

The sic utere tuo ut alienum non laedas principle was applied in the Corfu Channel case in 1949. Here the court said that every state has the obligation not to allow knowingly its territory to be used against other states. The same principle was used in the court's 1996 advisory opinion about the use of nuclear weapons, which established the general obligation to prevent. Both conventions consider the no-harm rule as a due diligence. In the Pulp Mills case, we see that the principle of prevention, as a customary rule, has its origin in due diligence. While art 7 of the UN Watercourses Convention does not offer an explicit explanation of "appropriate measures," the ECE Water Convention does so. The establishment of an appropriate measure happens case by case based on the best available technology, best environmental practice, previous environmental impact assessment, and the precautionary principle. A due diligence obligation can be deduced from treaties governing the utilization of international watercourses.

The kind of harm and the significance threshold covered by the obligation of prevention

Only harm of a significant nature can be considered valid.