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

Convention and International Efforts on Responsibility and Liability

Convention wished to defer this issue without excluding its relevance in principle is confirmed by article 7 which states that "the Parties shall support appropriate international efforts to elaborate rules, criteria and procedures in the field of responsibility and liability". Such considerations deserve serious attention.

For the purpose of the present legal analysis, it may be argued that, on the one hand, they are countered by article 22 of the ECE Convention, which provides for the arbitral or judicial settlement of disputes arising from the application or interpretation of the Convention. Insofar as adjudication and arbitration usually lead to a judgment on the legality or illegality of a State's conduct, i.e. on its responsibility for an alleged internationally wrongful act.

Particularly in article 7 of the UN Convention, the principal aim is to regulate the legal consequences of harm where all appropriate due.

Diligence measures have been taken, not in the context of the secondary rules of State responsibility triggered by a breach of an international obligation. The York Convention regulates more extensively the consequence of the occurrence of harm, irrespective of the secondary rules on State responsibility for wrongful conduct, because it makes no provision for compulsory institutional cooperation for the purpose of preventing, controlling and reducing transboundary impact whereby the co-riparians hands the problem arising from the occurrence of transboundary harm.

In essence, Article 7, paragraph 2, of the UN Convention addresses the issue of the consequences attached to the occurrence of harm in the context of the obligation to consult. The negotiation leading to the adoption of this provision coincided to a large extent with "efforts to elaborate rules, criteria and procedures in the field of responsibility and liability." With regard to the regime of State liability for the consequences.

Of lawful harm, the UN Convention plays a complementary role with respect to the ECE Convention. Its relevance is enhanced by the fact that it evidences customary law under a reasoning well established in the case law of the ICJ.

The most important point that emerges from article 7, paragraph 2, of the UN Convention is that a use which causes significant harm to other watercourse States is not prohibited per se. Therefore, it cannot give rise to international responsibility for a wrongful act unless the harm caused can be said to stem from negligent conduct attributable to the origin State.

The aforementioned provision of the UN Convention attaches general legal consequences, if not addressed by the origin State, entail the commission of an internationally wrongful act. A systematic reading of the 5, 6, and 7 suggest that compliance with the primary obligations comprising the legal consequences of such harm should be considered as an ex post factor for determination of the equitable character.

of a given use. In essence, article 7, paragraph 2 establishes an additional obligation of due diligence, namely, a primary obligation triggered by the occurrence of harm despite the origin state's compliance with the due diligence requirement established in paragraph 1 of that article.

It is important to note that, by indicating that the goal of the new obligation of due diligence is "elimination or mitigation" of the harm caused, this provision does not give the harm-causing State a choice as to which of the two courses of action to take. If this was not clear from the wording of the provision, it was rendered explicit in the interpretative statement by the Working Group of the Whole for the Elaboration of a Convention on the Law of the Non-Navigation Uses of Watercourses, established in the Sixth Committee of the General Assembly.

Article 7, paragraph 2, also requires that the measures taken with a view to the elimination or mitigation of the harm be adopted "having

Due regard for the provisions of article 5 and 6. This wording emerged from one of the most impassioned debates during the final round of the negotiations in New York since the issue was considered crucial to the in abstracto balance between the equitable utilization and no-harm principles. While these may appear to be mere drafting niceties, it should be noted that the original wording would have deprived article 7, article 2, of most of its normative character; the words "consistent with Articles 5 and 6" could be used as a basis for the unreasonable argument that, if the harm resulted from an activity which could be claimed to be consistent with the parameters of due diligence under Article 7, paragraph 1 no further diligence measures would be required after its occurrence. The language ultimately adopted in New York provides a basic term of reference for consultations between the states concerned in order to agree on measures that may differ from those required for prevention.

andthat are appropriate to elimination or mitigation of the harm. This regulation of the consequencesof transboundary harm arising from a situation which is not illegal per se is consistent with therational of the ECE Water Convention with regard to the obligation " to prevent, control andreduce any transboundary impact". However, as indicated above, under the latter convention,issues arising from the occurrence of harm are normally to be handled within the framework ofjoint institutions. Therefore, for the purposes of interpretation and application, considerations asto the legal consequences arising from the occurrence of harm without wrongfulness under theUN Convention can serve as a complementary guidelines within the institutional frameworkestablished in the in the ECE Convention. They can also serve as terms of reference for bilateralnegotiations where cooperation within this type of framework proves no longer viable1.3 Compensation as a consequence of the occurrence

Although compensation is an essential element of the obligation of reparation, it does not enter into play as a form of reparation for wrongful activity or as the object of a primary obligation triggered automatically by the occurrence of a lawful harm. The difference between compensation under this provision and compensation as reparation in the context of the law of the State responsibility lies in the fact that the former does not originate from internationally wrongful conduct. Compensation may become ex post facto one of the factors relevant to determination of the equitable and reasonable character of a given utilization. This adds a leitmotif on the present section on general principles insofar as the no-harm rule and the equitable and reasonable use principle are part of a single, indivisible normative framework. These distinctions regarding the legal connotations of compensation are of more than theoretical relevance. The Convention's conceptual framework.

has an impact on the amount of compensation, to be agreed out of court on a case-by-case basis. Furthermore, the symbolic importance that States attach, as a matter of principle, to the language of international law in their interactions must not be underestimated. In practical terms, the origin state will be more readily available for open-minded negotiation of compensation within the legal framework established in the provision in question than it would be in response to a claim for full compensation on the basis of State responsibility or strict liability. The formula set out in article 7, paragraph 2, of the UN Convention also provides the parties to a potential or actual water law dispute with a frame of reference for reaching a mutually agreeable settlement as to the extent of the compensation required to balance equitably the interests at stake. It does so without setting pre-established rigid parameters, under which the full value of the damage caused would represent the starting-point.

For negotiations even though it might well be set aside at a later stage of process. The situation would be similar using a "strict liability" approach, with the aggravating factor that full compensation for the harm for the harm would be claimed without the need to establish the wrongfulness of the harm-causing activity. Compensation intended as a means of balancing the interests at stake could be a factor in subsequent assessment of the equitable character of a given utilization. This point has been made explicit by the Institute of International Law in its resolution on the utilization of non-maritime international waters and in article V, paragraph 2(j), of the Helsinki rules on the Uses of the Water of International Rivers adopted by the International Law Association in 1967. This concept is not excluded by the text of the UN Convention since the list of factors for determination of the equitable utilization of an international watercourse under article 6 in not exhaustive; the

concept is consistent with a systematic interpretation of the convention. In this respect, the UN Convention is in line with the ECE Water Convention's overall focus on cooperation. Even though article 7, paragraph 2, of the UN Convention clearly operates ex post with respect to the occurrence of significant harm, it express reference to the question of compensation lends itself to an interpretative argument that compensation may also be considered from an ex ante perspective with respect to a new use. Article 17 establishes an obligation of consultation and negotiation where a State considers "that implementation of planned measures would be inconsistent with the provisions of article 5 and 7"; article 11 even calls for consultations and negotiations on "the possible effects of planned measures on the condition of an international watercourse". This prior compensation approach is clearly corroborated by international practice. For example, the Columbia River Treaty of

1961 provides for a distribution of benefits between the parties, including indemnification in kind, paid in advance, for the flooding of areas in Canada. This shows that compensation need not be solely financial in nature. Another example is the 1959 agreement between India and Nepal on cooperation of the Gandak River for the generation, transmission and distribution of hydropower, under which India would be responsible for construction and operation of a hydroelectric plant infrastructure and for the transmission of electricity to Indian territory, allotting a certain amount of energy to Nepal, while Nepal would be responsible for construction and operation of the transmission installations and distribution of the electricity allotted to it. The water cooperation between Canada and the USA under the 1951 Columbia River Treaty provides a similar model. Particularly where compensation is not confined to financial indemnification, the concept merges with that of the equitable apportionment of benefits.

the no-harm rule requires states to prevent significant harm to other states or their environment. This rule is closely linked to the principle of equitable utilization and participation, which emphasizes the fair and reasonable allocation of shared resources. By applying the no-harm rule, states are obligated to take measures to avoid causing harm to other states or their environment. This includes preventing pollution, minimizing the impact of activities that may have transboundary effects, and cooperating with other states to address potential risks. The equitable utilization and participation principle complements the no-harm rule by promoting the fair and reasonable use of shared resources. It recognizes that states have a right to utilize their own resources, but also have a responsibility to ensure that their actions do not unreasonably harm other states or deprive them of their fair share of resources. In practice, the no-harm rule and the principle of equitable utilization and participation work together to guide states in managing shared resources. They provide a framework for cooperation and negotiation, encouraging states to find mutually beneficial solutions that balance their respective interests and ensure the sustainable use of resources. Overall, the no-harm rule and the principle of equitable utilization and participation are essential principles of international law that promote responsible and sustainable management of shared resources. They help to prevent conflicts and promote cooperation among states, ultimately contributing to the protection of the environment and the well-being of all nations.