1. Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, Rep. of the ILC on the Work of its Forty-Sixth Session (1994), GAOR, 49th Sess., Suppl. No. 10, UN Doc. A/49/10, p. 197 (hereinafter referred to as the articles). The Commission also adopted a Resolution on Confined Transboundary Groundwater, ibid. at p. 326.

2. See the discussion of the draft articles in the Sixth Committee at its 1994 session: UN Doc. A/C.6/49/SR. 17, 21, 22, 23, 24, 26, 27, 28 and 41 (1994). The General Assembly mandated a working group from its Sixth Committee to develop a ‘framework convention on the law of the nonnavigational uses of international watercourses’ on the basis of the articles. GA Res. 49/52, UN Doc. A/RES/49/52 (1994).

3. I will use the term ‘international water law’ to précis what the ILC has called the ‘law of the non-navigational uses of international watercourses’ – a term not only long but also inaccurate as, in fact, many navigational uses are within the ambit of the articles, see Art. 1(2). When I use the term (general) international water law, I refer to those rules of general international law that apply outside the context of treaties for particular watercourses or regions.

4. At the time of writing, it is uncertain how much support the articles will find among governments. Few States have responded to the requests for comments (see infra, nn. 66–67). Of the States that did provide comments, some expressed a preference for a set of guidelines over a global treaty, see e.g., Comments of Canada, UN Doc. A/CN.4/447/Add. 1 (1993) p. 6; Comments of the Netherlands, UN Doc. A/CN.4/447/Add.3 (1993) para. 4.

5. The ILC Articles provide an updated statement of the often-cited principles set forth in the 1966 Helsinki Rules adopted by the International Law Association, Rep. of the Fifty-Second Conference, Helsinki 1966, p. 478. While the articles on the whole draw in part on the Helsinki Rules, certain articles, in particularthose on notification and consultation of planned measures (Arts. 11–19) are a marked improvement on the Helsinki Rules.

6. See for earlier critical reviews of the ILC Articles adopted at first reading (1991): e.g., Handl, G., ‘The International Law Commission's Draft Articles on the Law of International Watercourses (General Principles and Planned Measures): Progressive or Retrogressive Development of International Law?’, 3 Colorado J Int. Env. L & Pol. (1992) pp. 123–143Google Scholar, at p. 133 (concluding that whereas in some instances the draft articles represent clear advances over traditional, customary international principles and criteria, in others ‘the innovations they embody are of questionable merit, indeed evidence significant conceptual problems’); Hunt, C.D., ‘Implementation: Joint Management and Remedies in Domestic Tribunals (Articles 26–28 and 30–32)’, 3 Colorado J Int. Env. L& Pol. (1992) pp. 281–294Google Scholar, at p. 282 (stating that ‘the draft articles, as a whole, do not adequately respond to the challenges that face the world at the end of the twentieth century’); Radosevich, G.D., ‘Implementation: Joint Management and Remedies in Domestic Tribunals (Articles 26–28 and 30–32)’, 3 Colorado J Int. Env. L & Pol. (1992) pp. 261–268Google Scholar, at p. 268 (concluding that the ILC draft is a retrograde step ‘toward generality and mediocracy’). See for critical reviews of the articles adopted at second reading (1994): Hey, E., ‘Sustainable Use of Shared Water Resources: the Need for a Paradigmatic Shift in International Watercourse Law’, in Blake, G.H. et al. , eds., The Peaceful Management of Transboundary Resources (1995) pp. 127–152Google Scholar, at p. 127 (noting that ‘fundamental changes’ are required in the draft articles if these ‘are to facilitate rather than hamper the implementation of Agenda 21’); Rahman, R., ‘The Law of the Non-Navigational Uses of International Watercourses: Dilemma for Lower Riparians’, 8 Fordham ILJ (1995) pp. 9–24Google Scholar, at p. 22 (stating that the articles ‘appear to take a step backward on … fundamental issues’); Benvenisti, E., ‘Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law’, 90 AJIL (1996) pp. 384–415CrossRefGoogle Scholar (criticizing the rules on sharing, the absence of provisions on human rights and the over-emphasis on the potential of litigation).

7. Pearce, F., The Damned. Rivers, Dams and the Coming World Crisis (1992) pp. 36–40.Google Scholar

8. See the overview of international conflicts of watercourses in Gleick, P., Water in Crisis (1993).Google Scholar

9. In the river Rhine, discharges of pollutants in France and Germany have endangered the use of the river for drinking water and agriculture in the Netherlands. See for a recent overview: Nollkaemper, A., ‘The River Rhine: From Equal Apportionment to Ecosystem Protection’, 5 Rev. EC & Int. Env. L (1996) pp. 152–160.CrossRefGoogle Scholar

10. The future claims of Ethiopia to the waters of the Blue Nile are bound to reduce supplies in Egypt and Sudan. See the discussion by Dellapenna, J., ‘The Nile as a Political and Legal Structure’, in Brans, E. et al. , eds., Water Scarcity: Emerging Legal and Policy Responses, n.y.p.Google Scholar

11. The planned 22 dams and 19 power stations that are part of the Eastern Anatolian Project on the Euphrates in Turkey threaten supplies in Syria and Iraq. See ‘Special Report on Power and Water – A New Source of Conflict for the Region’, Reuter Textline, Middle East Economic Digest (25 January 1991) (describing the attenuated problems of Turkey, Syria and Iraq in reaching agreement over the water flow to be released by Turkey). Reportedly, recent dam projects in Turkey have been initiated without consultations with Syria and Iraq; see ‘Turkey Urges Syria, Iraq to Negotiate Water Dispute’, Reuters World Service (7 February 1996) available in LEXIS/Nexis, News Library.

12. India's diversion of water from the Ganges through the Farakka barrage has caused severe water shortages in Bangladesh during the dry season and massive floods during the monsoon. See M. Asafuddowlah, ‘Sharing of Transboundary Waters: The Ganges Tragedy’, in Blake et al., eds., op. cit. n. 6, at p. 209; Pearce, op. cit. n. 7, at pp. 269–270; ‘Arid Bangladesh Accuses India of Choking Ganges’, The Times (15 July 1994)Google Scholar (describing how the withdrawal of water from the Ganges in India has caused salinity because the enfeebled Ganges cannot hold back seawater rushing upstream from the Bay of Bengal, causing what has been called ‘one of Asia's greatest man-made disasters’).

13. Irrigation in the Western United States by extracting water from the Colorado river has caused salinization that has adversely affected crop yields in Mexico. Reisner, M., Cadillac Desert. The American West and Its Disappearing Water, rev. edn. (1993).Google Scholar

14. See the references in McCaffrey, S., ‘Water Scarcity: Institutional and Legal Responses’, in Brans, et al. , eds., op. cit. n. 10.Google Scholar

15. Some 40 percent of the world population live in the 250 river basins whose water is competed for by more than one State; see ‘The Water Bomb’ (The Guardian, 8 August 1995).

16. Agenda 21, Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF. 151/26, Annex II (1992) para. 18.35.

17. Dellapenna, J.W., ‘Waterin the Jordan Valley: The Potential and Limits of Law’, 5 Palestine YBIL (1989) pp. 15–47, at p. 19.Google Scholar

18. See the older overviews in Legal Problems Relating to the Utilization and Use of International Rivers. Report of the Secretary-General of the UN, Part II, UN Doc. A/5409 (1963); FAO, Legislative Study No. 15 (1978).

19. Agreement on the Protection of the River Meuse, Charlesville Mezieres, 26 April 1994, 34 ILM (1995) p. 854.

20. Agreement on the Protection of the River Scheldt, Charlesville Mezieres, 26 April 1994, 34 ILM (1995) p. 859.

21. Convention on Cooperation for the Protection and Sustainable Use of the Danube River, Sofia, 29 October 1994, 5 YB Int. Env. L (1994) disk, doc. 16.

22. Art. 6 and Annex II of the Treaty of Peace Between Israel and Jordan, Arava/Arada Crossing Point, 26 October 1994, 34 ILM (1995) p. 43.

23. In February 1995, eight Nile States agreed on the Nile River Basin Action Plan, see ‘Development Plan Approved for Nile Basin States’, Xinhua News Agency (13 February 1995) available in LEXIS/Nexis, News Library.

24. Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, 5 April 1995, 34 ILM (1995) p. 864.

25. 3 YB Int. Env. L (1993) p. 240.

26. ‘India and Nepal to Sign Two Pacts on Sharing Water and Power’, Deutsche Presse Agentur (12 February 1996), available in LEXIS/Nexis, News Library.

27. Illustrative is the position of Bangladesh that, being heavily dependent on policies of upstream users, ‘has always attached paramount importance to the evolution and elaboration of universal rules of law that regulate international watercourses’; see Rahman, loc. cit. n. 6, at p. 10.

28. Art. 5(1). See for exhaustive overviews of practice and doctrine: Third Report of Special Rapporteur Schwebel, ILC Yearbook 1982 Vol. II, Part 1, para. 41 et seq.; Second Report of Special Rapporteur McCaffrey, ILC Yearbook 1986 Vol. II, Part 1, para. 75 et seq.; Lipper, J., ‘Equitable Utilization’, in Garreston, A.H. et al. , eds., The Law of International Drainage Basins (1967) pp. 15–88.Google Scholar

29. Second Report of Special Rapporteur McCaffrey, ILC Yearbook 1986 Vol. II, Part 2, para. 169.

30. Dellapenna, loc. cit. n. 17, at pp. 40–42 (discussing such claims made by Lebanon, Jordan, Syria and Israel). See generally on these claims: Berber, F.J., Rivers in International Law (1959) pp. 14–22Google Scholar; Bourne, C.B., ‘The Right to Utilize the Waters of International Rivers’, 3 Can YIL (1965) pp. 187–264, at pp. 206–207.Google Scholar

31. Elmusa, S.S., ‘Dividing Common Water Resources According to International Water Law: The Case of the Palestinian-Israeli Waters’, 35 Natural Resources Journal (1995) pp. 223–242Google Scholar, at pp. 234–236 (discussing Israeli insistence on priority of existing uses).

32. See generally on the balance of interest as a fundamental concept for ‘the determination of the limitations incumbent upon a state's contemplated use of a given internationally shared natural recourse’: Handl, G., ‘The Principle of “Equitable Use” as Applied to Internationally Shared Natural Resources: Its Role in Resolving Potential International Disputes over Transfrontier Pollution’, 14 Rev. Beige (1979) pp. 40–62Google Scholar, at p. 45. See for a general discussion of the dominance of contextual equity in present international law: Koskenniemi, M., From Apology to Utopia. The Structure of International Legal Argument (1989) pp. 223–236.Google Scholar

33. Art. 6.

34. Art. 10(1) provides that ‘In the absence of agreement or custom to the contrary, no use of an international watercourse enjoys inherent priority over other uses.’

35. Stone, C., The Gnat is Older than Man. Global Environment and Human Agenda (1993) p. 166.Google Scholar

36. Idem. See also Wenig, J.M., ‘Water and Peace: The Past, the Present and the Future of the Jordan River Watercourse: An International Law Analysis’, 27 NY Univ. J Int. L & Pol. (1995) pp. 331, 348Google Scholar (noting that ‘consideration of all these factors without a method of gauging their relative importance cannot provide conclusive and realistic conclusions to disputes over international waters’); Tomuschat, C., ‘International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law: The Work of the International Law Commission’, in Francioni, F. et al. , eds., International Responsibility for Environmental Harm (1991) pp. 37–72Google Scholar, at p. 50 (noting that in a case of a lack of any mechanism for third-party dispute settlement, a balancing test will undermine the ‘certainty of the law’).

37. Elmusa, loc. cit. n. 31.

38. Koskenniemi, op. cit. n. 32, at p. 233.

39. Dellapenna, loc. cit. n. 17, at p. 38.

40. Supra, n. 12.

41. Wouters, P.K., ‘Allocation of the Non-Navigational Uses of International Watercourses: Efforts at Codification and the Experience of Canada and the United States’, 30 Can. YIL (1992) pp. 43–88Google Scholar, at p. 87 (arguing that US-Canada practice shows that if States are willing to cooperate, the equitable use test ‘can work’ and is superior to more rigid substantive norms). Several scholars have applied the principle to actual conflicts of uses and argued that it could result in equitable outcomes; see e.g., Elmusa, loc. cit. n. 31; Cohen, J.E., ‘International Law and the Water Politics of the Euphrates’, 24 NY Univ. J Int. L & Pol. (1991) pp. 503–556Google Scholar, at p. 525 et seq.; Wenig, loc. cit. n. 36, at p. 345 et seq.; Benvenisti, loc. cit. n. 6, at p. 402 (arguing that the principle of equitable use helped during the negotiations of the Israeli-Palestinian water agreement to defer the explosive issue of water allocation to later stages when an improved atmosphere allowed a mutually satisfactory solution).

42. The General Assembly concluded that, first, despite the large number of watercourse agreements, in many river basins the only applicable law consists of ‘general principles and rules of customary law’, and, second, that these general principles and rules of customary law were unable to prevent legal problems from arising. See GA Res. 2669(XXV) (1970).

43. See e.g., Bourne, C., ‘Procedure in the Development of International Drainage Basins’, 22 Univ. Toronto LJ (1972) pp. 172–206CrossRefGoogle Scholar.; Benvenisti, loc. cit. n. 6. See generally Franck, T.M., The Power of Legitimcay Among Nations (1990) pp. 86–87Google Scholar (discussing the virtues of what he calls ‘process determinacy’).

44. The ILC proposed provisions concerning, e.g. Joint management (Art. 24(1)); notification and consultation (Arts. 11–19); exchange of information (Art. 9); and settlement of disputes (Arts. 32–33).

45. Cf., Koskenniemi, M., ‘Peaceful Settlement of Environmental Disputes’, 61 Nordic JIL (1991) pp. 73–87Google Scholar, at p. 85 (discussing the Utopian premise that ‘once we have full knowledge of the facts of environmental degradation and the means to prevent it, we are able to sort the problem out so that everybody will (of necessity) agree’).

46. Brunnee, J. and Toope, S.J., ‘Environmental Security and Freshwater Resources: A Case for International Ecosystem Law’, 5 YB Int. Env. L (1995) pp. 41–76Google Scholar, at pp. 57–58; Koskenniemi, loc. cit. n. 45, at pp. 73, 84–86.

47. Substantive provisions are a common feature of treaty law on a river-basin level; they cover such issues as minimum flow requirements (e.g., Art. 6 of the Agreement on the Mekong River Basin, supra, n. 24; Art. 1 of Annex II to the Israel-Jordan Treaty of Peace, supra, n. 22); prevention of harmful effects (Art. 7 of the Agreement on the Mekong River Basin, supra, n. 24); protection of water quality (Art. 3 of Annex II to the Israel-Jordan Treaty of Peace, supra, n. 22); and application of clean technologies (Art. 3(2)(b) of the Agreement on the Protection of the River Meuse, supra, n. 19).

48. Convention on the Protection and Use of Transboudary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 ILM (1992) p. 1312. This treaty, open for accession to all member States of the Economic Commission for Europe (Art. 23), provides, inter alia, an obligation to protect the transboundary impact and conservation of ecosystems; see Art. 2(a) and 2(d).

49. See for references the discussion of these norms in section 6 infra.

50. See for a discussion of this concept in US water law: Tarlock, A.D., ‘Current Trends in United States Water Law and Policy: Private Property Rights, Public Interest Limitations and the Creation of Markets’, in Brans, et al. , eds., op. cit. n. 10.Google Scholar

51. Koskenniemi, loc. cit. n. 45, at p. 74.

52. See generally Smith, H.A., The Economic Uses of International Rivers (1931) p. 144Google Scholar; Bruhàcs, J., The Law of Non-navigational Uses of International Watercourses (1993) pp. 53–54Google Scholar. See also the Report of the ILC on the Work of its Forty-Third Session (1991). See further the Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its Forty-Sixth session, prepared by the Secretariat, UN Doc. A/CN.4/L.469 (1992) para. 18 (referring to representatives who ‘expressed doubts about the feasibility of drafting articles on the non-navigational uses of international watercourses that would be suitable for application to watercourses in general, since they varied so much in size, location, and characteristics’). Of course, this phenomenon too is not exclusively characteristic of international watercourses. Elsewhere I have discussed the consequences for legal development regarding issues like forestry and land-based marine pollution; see Nollkaemper, A.: ‘Protection of Forests through Trade Measures: The Search for Substantive Benchmarks’, 8 Georgetown ILR (1996)Google Scholar (forthcoming); idem, ‘Balancing the Protection of Marine Ecosystems with Economic Benefits from Land-based Activities: The Quest for International Legal Barriers’, 27 Ocean DIL (1996) pp. 153–179.Google Scholar

53. GA Res. 2669(XXV) (1970). The General Assembly requested the ILC to ‘take up the study of the law of international watercourses with a view to its progressive development and codification.’

54. Supra, n. 1.

55. The Commission has too many issues on its agenda, die sessions are short, the Drafting Committee has little time, and there is insufficient staff. See generally Sinclair, I., The International Law Commission (1987) pp. 32–42.Google Scholar

56. Five Rapporteurs worked on the issue: Richard D. Kearney (from 1974); Stephen M. Schwebel (1977), Jens Evensen (1982), Stephen C. McCaffrey (1985) and Robert Rosenstock (1992). The progress achieved by some reports was often undone after the appointment of new Rapporteurs, each of whom had their own ideas as to the course which should be followed. The Third Report of Special Rapporteur Schwebel (ILC Yearbook 1982 Vol. II, Part 1, p. 65) had a decisive influence on the eventual contents and shape of the articles, but the momentum that was caused by that report was lost after successive changes of Special Rapporteurs, who revisited many of the issues in that Report, while often arriving at the same conclusions.

57. Statute of the International Law Commission, UN Doc. A/CN.4/4/Rev. 2 (1982) Arts. 15–17.

58. Some States shared this doubt whether the development of international water law should have been entrusted to the ILC. For instance, Bangladesh proposed in 1970 that this task should be entrusted to an intergovernmental committee; see Rahman, loc. cit. n. 6, at p. 13.

59. Development of the law required consideration of the issues of hydrology and ecology that most lawyers can only understand at a superficial level. In 1974, die Commission recognized its lack of knowledge on technical aspects and asked governments whether special arrangements should be made for the Commission to obtain technical, scientific and economic advice through such means as the establishment of a Committee of Experts. Most States responding to me questionnaire responded favourably to this question: ILC Yearbook 1976 Vol. II, Part 2, para. 138. Upon a suggestion by Special Rapporteur Kearney (ILC Yearbook 1976 Vol. II, Part 2, para. 47), the Commission made requests for advice to international organizations of the UN family which are involved in river development (ILC Yearbook 1978 Vol. II, Part 2, para. 158). While Special Rapporteurs appear to have made ample use of technical expertise, there is little evidence to suggest that the Commission entirely comprehended the technical issues it discussed. For instance, technical dimensions plagued the discussion of the scope of the work of the Commission – die Commission had to consider whether it was correct in hydrological terms to require that waters are only a ‘watercourse’ if they flow into a common terminus (Art. 2(b)), and whether confined groundwater was sufficiently similar to ‘related’ groundwater to be made subject to the same rules; see the Commentary on Art. 2, paras. 4–6. Another technical issue that has not satisfactorily been dealt with was the scope and meaning of the concept ‘ecosystem’ introduced in Art. 20; see infra section 6.2.

60. Ramcharan, B.G., The International Law Commission. Its Approach to the Codification and Progressive Development of International Law (1977) p. 106.Google Scholar

61. See generally: McRae, D.M., ‘The International Law Commission: Codification and Progressive Development after Forty Years’, 25 Can. YIL (1987) pp. 362–363.Google Scholar

62. Remarks by Mahiou, 2312th Meeting, ILC Yearbook 1993 Vol. 1, p. 97.

63. Rosenne, S., ‘The International Law Commission, 1949–59’, 36 BYIL (1960) pp. 104, 161.Google Scholar

64. See generally McRae, loc. cit. n. 61, at pp. 361–362, 365–366.

65. 1970 Resolution, supra, n. 53. It is interesting to recapitulate a suggestion made by the Netherlands in response to a questionnaire included in the 1980 Report of the Secretary-General relating to the ‘Review of the Multilateral Treaty-Making Process’. The Netherlands suggested that a procedure should be devised whereby the General Assembly ‘would thoroughly discuss subjects which are suggested for inclusion in a legal instrument before requesting [the Commission] to draft such an instrument’; cited in Sinclair, op. cit. n. 55, at p. 117.

66. ILC Yearbook 1976 Vol. II, Part 1, p. 147. See for a summary ILC Yearbook 1976 Vol. II, Part 2, pp. 157–158. After 1976, 11 additional States responded to the questionnaire, bringing the total number of answers to 32. However, irrespective of the number of responses, the questionnaire would have yielded little in terms of substantive guidance – the questions were mainly targeted at the scope and outline of the work of the Commission, rather than in a substantive direction.

67. The Law of the Non-Navigational Uses of International Watercourses. Comments and Observations from States, UN Doc. A/CN.4/447 and Adds. 1, 2 and 3 (1993). The limited input from States has affected many other issues examined by the Commission; see McRae, loc. cit. n. 61, at pp. 364–65 (also noting that ‘direct communications by individual states are … vital to the functioning of the Commission’).

68. This, too, is a problem generally applicable to the work of the Commission; see McRae, loc. cit. n. 61, at p. 365 (pointing, amongst other factors, to the ‘ritualistic quality’ of the annual debate in the Sixth Committee).

69. One example where the perception of political feasibility seems to have been given too much weight is the provision on dispute settlement. The Commission declined to propose dispute settlement procedures that can be unilaterally initiated by States that consider that their rights are affected (Art. 33). This is apparently based on the Commission's assessment of the political acceptability of its Articles. That assessment may be correct. One wonders, however, if a decision that mandatory dispute settlement is undesirable was not best left to States, allowing the ILC to propose a construction that would offer the most effective contribution to the resolution of conflicts of uses.

70. Art. 7.

71. Art. 27.

72. Commentary on Art. 7, para. 14 and Art. 10(2).

73. Art. 20(obligationtoprotect ecosystems); Art. 21(2) (obligation to prevent significant harm resulting from pollution); and Art. 23 (obligation to protect the marine environment).

74. Art. 24(2)(a).

75. Art. 6(1)(b), (d) and (g).

76. Most of the authority for substantive norms emerged during the latter stages of the Commission's work. However, the Commission was apparently not willing or able to adjust its perspective in the light of these new developments and stuck to the doctrine of equitable use. In his First Report, Special Rapporteur Rosenstock noted that although since the adoption of the draft articles at first reading States had adopted Agenda 21, the Convention on environmental impact assessment (Espoo, Finland, 25 February 1991, 30 ILM (1991) p. 800), and the Convention on the protection and use of transboundary watercourses and international lakes (supra, n. 48) ‘nothing in these instruments requires fundamental change in the text of the draft as it stands after completion of the first reading.’ First Report of Special Rapporteur Rosenstock, UN Doc. A/CN.4/451 (1993) para. 4. See for a critical discussion of this proposition: Hey, loc. cit. n. 6.

77. A notable example is the principle of sustainable water utilization. Infra, section 6.3.

78. Stone, C., Should Trees Have Standing. Toward Legal Rights for Natural Objects (1974) p. 41Google Scholar. See generally on the role of language in the development of the law: Kennedy, D., ‘A New Stream of International Law Scholarship’, 7 Wisconsin ILJ (1994) p. 1.Google Scholar

79. See for an overview of the discussions on this point in the ILC: McCaffrey, S.C., ‘The Law of International Watercourses: Some Recent Developments and Unanswered Questions’, 17 Denver JIL & Pol. (1989) pp. 505–526, at pp. 508–510Google Scholar; Bourne, C.B., ‘The International Law Commission's Draft Articles on the Law of International Watercourses: Principles and Planned Measures’, 3 Colorado J Int. Env. L & Pol. (1992) pp. 65–92, at pp. 8–88Google Scholar; Fitzmaurice, M., ‘The Law of Non-Navigational Uses of International Watercourses – The International Law Commission Completes its Draft’, 8 LJIL (1995) pp. 361–375.CrossRefGoogle Scholar

80. The few often cited precedents for a no significant harm rule in particular the Corfu Channel Case (GB v. Alb.) ICJ Rep. (1949) 4, 22; the Trail Smelter Arbitration (US v. Canada), 3 RIAA (1938) p. 1905 and 3 RIAA (1941) p. 1911; and the Lac Lanoux Arbitration (France v. Spain), 12 RIAA (1957) p. 281) are highly context-specific and do not apply to uses of transboundary watercourses under general international law. See for a critical review of the utility of these references: Bourne, loc. cit. n. 79, at pp. 85–88. See also Wouters, loc. cit. n. 41, (concluding that US-Canada practice does not support a priority for a prohibition on causing significant harm as the governing rule for allocation of uses of international watercourses).

81. The ILC considers the threshold of ‘significant’ to be one that can be established by objective evidence. Commentary on Art. 3, para. 14. However, this appears to be an overstatement of the objectivity of the concept; in the absence of third party dispute settlement questions as to what is ‘harm’ and what is ‘significant’ are likely to result in complicated debates. See Wouters, loc. cit. n. 41, at p. 83 (arguing that the imprecision of the concept of [significant] harm belies the argument that it would be easier to determine a breach of the no significant harm rule than the principle of equitable use). See generally on the problems of threshold determinations: McCaffrey, loc. cit. n. 79, at pp. 518–519; Nollkaemper, A., The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (1993) pp. 35–38.Google Scholar

82. Not surprisingly, Bangladesh is a fervent defender of the strict prohibition of significant harm; see Rahman, loc. cit. n. 6, at pp. 23–24.

83. Commentary on Art. 8 (later renumbered Art. 7), ILC Yearbook 1988 Vol. II, Part 2, p. 36. Note that the text of Art. 7, as formulated in 1988 and retained in the 1991 articles adopted at first reading, does not necessarily result in this conclusion; Art. 7 was intended as an obligation of due diligence, and cases of significant harm where the State of origin had acted diligently were not prohibited by Art. 7 and could still be examined under Art. 5 – a construction similar to the approach adopted upon second reading.

84. Bourne, loc. cit. n. 79, at p. 71.

85. The 1959 Nile Waters Agreement allocates the water of the Nile to Egypt and Sudan. Agreement between the United Arab Republic and the Sudan for the full utilization of the Nile Waters, Cairo, 8 November 1959, UN Legislative Series (ST/LEG/SER.B/12), Treaty No. 34. Continuing political turmoil has prevented Ethiopia from developing uses of the waters of the Blue Nile before it leaves the country. Already in the 1950s Ethiopia planned, with United States support, the damming of the Blue Nile which threatened Egypt's control over the river; political turmoil meant that the dams remained firmly on the drawing board, but recently the threats for Egypt have again become real. See Pearce, op. cit. n. 7, at p. 117; idem at p. 286 (noting that ‘In Cairo the fear remains that, if Egypt was once ‘the gift of die Nile’, it may now be the gift of sluice-gate operators in Sudan and Addis Ababa’). Reportedly, Egypt has insisted that it would not accept any interference with the river upstream that could harm historical uses. (See ‘As Thick As Blood. Water in the Middle East’, The Economist (23 December 1995). See also Dellapenna, J.W., ‘Treaties as Instruments for Managing Internationally-Shared Water Resources: Restricted Sovereignty vs. Community of Property’, 26 Case Western Reserve JIL (1994) pp. 27–56, at pp. 47–51.Google Scholar

86. Dellapenna, loc. cit. n. 85, at p. 51. See for a similar argument against the prioritization of the obligation not to cause significant harm in the context of the Jordan River: Wenig, loc. cit. n. 36, at pp. 356–357 (noting that because of insufficient water resources, inevitably appreciable harm will result to some if not all of the States).

87. Such a construction was proposed by Special Rapporteurs Schwebel and McCaffrey, who suggested creating a presumption that a State that caused significant harm would have committed a wrongful act, unless it could show that the use was equitable. Art. 8(1) proposed in the Third Report of Special Rapporteur Schwebel, ILC Yearbook 1982 Vol. II, Part One, p. 103; Second Report of Special Rapporteur McCaffrey, ILC Yearbook 1982 Vol. II, Part One, para. 184. A comparable construction is proposed in Article I of the Complementary Rules applicable to International Water Resources, adopted by the International Law Association, Rep. of the Sixty-Second Conference, Seoul 1986, p. 278 (‘A basin State shall refrain from and prevent acts or omissions within its territory that will cause substantial injury to any co-basin State, provided that the application of the principle of equitable utilization … does not justify an exception in a paiticular case’).

88. Nonetheless, there are three important differences between balancing under Art. 7(2) and balancing ‘directly’ under Art. 5: first, the procedure under Art. 7(2) is more likely to be conducive to a solution satisfactory to the States involved because of its express requirement of consultations to achieve an equitable result; second, under Art. 7(2) the burden of proof for establishing that a particular use is equitable and reasonable appears to lie with the State whose use is causing significant harm (see the Commentary on Art. 7, para. 14); third, Art. 7(2) expressly states that consultations may lead to payment of compensation as a method of balancing the equities – of course, this is not excluded under Art. 5, but the fact that it is expressly mentioned in the context of significant harm may make it a legal consideration that influences negotiations between riparian States.

89. Commentary on Art. 7, para. 2.

90. Similarly: Fitzmaurice, loc. cit. n. 79, at p. 371. In fact, this also follows from the procedural scheme set out by the Commission: States have to proceed by way of notification, reply and consultations ‘with a view to arriving at an equitable resolution of the situation’ (Art. 17(1)). Thus, when the procedures are followed, planned measures are not examined under the ‘no significant harm’ rule. Art. 7(2) ensures that this also holds true for uses other than planned measures that result in significant harm – for instance, existing diversions that only after many years begin to cause drought or salinization downstream.

91. Commentary on Art. 7, para. 4.

92. See in the context of harm resulting from pollution: Lammers, J.G., Pollution of International Watercourses (1984) pp. 350–351.Google Scholar

93. Notably the Alabama Arbitration, reported in Moore, J.B., History and Digest of the International Arbitration to Which the United States has been a Party, Vol. I (1898) p. 572.Google Scholar

94. Commentary on Art. 7, para. 4.

95. The examples given by the Commission are taken from treaties dealing with pollution issues, see the Commentary on Art. 7, paras. 6–7, but these examples (mostly revolving around the question of when a State is responsible for acts of private persons) are not helpful to non-pollution cases and in any case do not apply to Art. 7 but rather to Art. 21(2) (see below).

96. Commentary on Art. 7, para. 8, citing Lammers, op. cit. n. 92, at p. 349. Elsewhere, the Commission suggests that due diligence may be defined in terms of States having to adopt ‘all necessary’, ‘all appropriate’ or ‘all practicable’ measures (Commentary on Art. 7, para. 6), although each of these terms has different legal connotations and are definitively not identical to an obligation to prevent harm once a State ‘knows or ought to have known’ that harm would occur.

97. See the draft articles on the Law of the Non-Navigational Uses of International Watercourses and Commentaries thereto, Adopted upon Second Reading by the International Law Commission at its Forty-Sixth Session, UN Doc. A/CN.4/L.493 (1994) para. 2.

98. See also the remarks of Arangio-Ruiz, ILC Yearbook 1988 Vol. I, p. 141, para. 22 (noting that since an affected State cannot prove that the conduct of the State of origin did not meet the standard of due diligence, ‘the rule which established responsibility thus ran the risk of remaining a dead letter’).

99. Art. 6(l)(b) refers to the ‘social and economic needs of watercourse States.’

100. Agenda 21, para. 18.47. See generally: Hey, loc. cit. n. 6, at pp. 130–133. At river-basin level certain precedents exist for the priority of human needs; see e.g., the 1944 Treaty between Mexico and the United States relating to the utilization of the waters of the Colorado and the Tijuna Rivers and of the Rio Grande, that provides the highest priority to domestic and municipal uses; III UNTS, no. 25, Art. 3. See also Caponera, D.A., Principles of Water Law and Administration. National and International (1992) pp. 147–148Google Scholar (defending the no-priority doctrine, but stating that ‘The only priority which might be established in a water law is that for household and domestic purposes [and for drinking purposes]’).

101. Commentary on Art. 7, para. 14. The Commission did not define the term ‘human health and safety’. But this term may be interpreted broadly and may cover, for instance, a case of upstream irrigation that causes downstream threats to human health by resulting in a lack of drinking water, disease or lack of food.

102. Art. 10(2). For reasons which are unclear this provision is not included in Art. 6, which would have been a much more appropriate place. See also Benvenisti, loc. cit. n. 6, at pp. 407–408.

103. The category ‘vital human needs’ presumably covers harm to human health and safety that does not attain the level of ‘significant’. The Commission does not define vital human needs and leaves it unclear whether they would include, for instance, effects on people's livelihood such as forced resettlement in the case of building dams. See for examples of the wide variety of effects in the domestic context the effects of the proposed Three Gorges Dam project in China, as described in Second International Water Tribunal, Dams (1994) pp. 142–166.

104. Art. 6(1)(f). Note that this provision is narrowly formulated as it ony refers to the conservation and protection of ‘the watercourse’ and does not take into account the broader ecosystem interests of river-basins.

105. Art. 6(1)(f) and 6(1)(d).

106. See Lammers, op. cit. n. 92; Fourth Report by Special Rapporteur McCaffrey, ILC Yearbook 1988 Vol. II, Part 1, paras. 38–88.

107. See the references in the Commentary on Art. 20, paras. 5–9.

108. For instance, deforestation on the slopes in the river basins of the Himalayas is intractably linked to erosion and floods downstream; see Teclaff, L. A., ‘Treaty Practice Relating to Transboundary Flooding, 31 Natural Resources Journal (1991) pp. 109–122Google Scholar, at p. 118. The canalization of the Rhine has caused drops in the river bed, lowering of the water-table in the alluvium along the flood plain and has resulted in several kilometers on either side of the river, fields and ancient forests of oak, elm and willow drying out. Pearce, op. cit. n. 7, at p. 38. The Maga Dam south of Lake Chad has dried out neighbouring areas and has thereby destroyed antelope habitats and undermined survival conditions for elephants. Ibid. at p. 168.

109. The Commission cites a definition of ecosystems that states that the term refers to ‘an ecological unit consisting of living and non-living components that are interdependent and function as a community.’ Commentary on Art. 20, para. 2. The Commission did not attempt to define what the boundaries of such a unit might be, and thus it remains uncertain to what extent the Commission intended land uses to be covered. See generally: Thomson, R.W., ‘Ecosystem Management: Great Idea, But What is It. Will it Work, and Who Will Pay?’, 9 Nat. Resources & Env. (1995) pp. 42–72, at p. 70Google Scholar (noting, in a domestic context, that ‘before the government can “manage along ecosystem boundaries” it must delineate ecosystems. Yet, how and where will the line be drawn?’). Cf., Wilson, E.O., The Diversity of Life (1992) p. 396Google Scholar (defining ecosystem as ‘The organisms living in a particular environment, such as a lake or a forest (or, in an increasing scale, an ocean or the whole planet), and the physical part of the environment that impinges on them’).

110. Art. 1(1)states that the articles apply to uses of international water courses and ‘to measures of conservation and management related to the uses of those watercourses’ (emphasis added). Art. 2(b) defines ‘watercourse’ as ‘a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole.’ Several members of the Commission and representatives in the Sixth Committee made a conscious effort to define ‘watercourse systems’ so as to exclude land in the watershed. Cf., the Second Report by Special Rapporteur Schwebel (noting that the employment of the term ‘watercourse system’ avoids the connotation of land area), ILC Yearbook 1982 Vol. II, Part 1, para. 512. Also after the finalization of the Commission's work, voices in the Sixth Committee were of the opinion that land uses are not covered by the scope of the articles: see the Report of the ILC on the Work of its Forty-Third Session (1991). See also the Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its Forty-Sixth session, prepared by the Secretariat, UN Doc. A/CN.4/L.469 (1992) para. 46. See on the relationship between the scope of the articles and Art. 20: Nanda, V.P., ‘The Law of the Nonnavigational Uses of International Watercourses: Draft Articles on Protection and Preservation of Ecosystems, Harmful Conditions and Emergency Situations, and Protection of Water Installations’, 3 Colorado J Int. Env. L & Pol. (1992) pp. 175–207Google Scholar; Brunnee and Toope, loc. cit. n. 46, at pp. 58–60.

111. The Commission has given a broad reading to the term ‘adequate protection’, that may cover control of floods, pollution, erosion, mitigation of drought and control of saline intrusion. Commentary on Art. 5, para. 4.

112. Art. 20.

113. Commentary on Art. 20, para. 3. However, this construction is not persuasive as Art. 20 appears to have a much broader scope (including land areas) than Art. 5.

114. United Nations Convention on the Law of the Sea, 10 December 1982, 21 ILM (1982) 1261. Cf., the analyis of the comparable Art. 192 of the United Nations Convention on the Law of the Sea: ‘Commentary to Art. 192’, in Nordquist, M.H. et al. , eds., United Nations Convention on the Law of the Sea 1982 – A Commentary, Vol. 4 (1991) p. 39.Google Scholar

115. ILC Yearbook 1980 Vol. II, Part 1, para. 27.

116. Other aspects which are missing include the notions of beneficial flooding to preserve wetlands and estuarine ecosystems (Teclaff, loc. cit. n. 108, at p. 115; Scudder, T., ‘The Need and Justification for Maintaining Transboundary Flood Regimes: The Africa Case’, 31 Natural Resources Journal (1991) pp. 75–107Google Scholar) and the preservation of watershed forests (Teclaff, loc. cit. n. 108, at pp. 118–119).

117. In many degraded watercourses, pollution has been only one cause of degradation, and moreover the cause that is the easiest to repair. In the river Rhine, for instance, further structural causes involve damming, cutting the river off from floodplains, and canalization – ‘uses’ that in combination with pollution virtually led to the death of the ecosystem in the 1970s. Pearce, op. cit. n. 7, at pp. 36–40; Nollkaemper, loc. cit. n. 9.

118. This provision has a broad scope. Apart from ‘traditional’ cases of pollution, such as the introduction of hazardous substances by an upstream industry, the rule also appears to apply to uses that decrease the flow of watercourses and result, for instance, in salinization of waters downstream. Art. 21(1) defines ‘pollution of an international watercourse’ as ‘any detrimental alteration in the composition or quality of the waters of an international watercourse which results directly or indirectly from human conduct.’

119. In contrast to Art. 7, Art. 21 does not contain any wording to that effect. This suggests that Art. 21 should be read as an absolute obligation not permitting a defence of due diligence. See on the importance of formulation for the determination of the nature of an obligation: Pisillo-Mazzeschi, R., ‘Forms of International Responsibility for Environmental Harm’, in Francioni, F. and Scovazzi, T., eds., International Responsibility for Environmental Harm (1991) pp. 15–35Google Scholar, at pp. 20, 24, 28; Nollkaemper, op. cit. n. 81, at p. 49. Only in one line in its Commentary did the Commission mention in passing that we are here concerned with a due diligence obligation; see the Commentary on Art. 21, para. 4. See McCaffrey, loc. cit. n. 79, at p. 520 (citing some members who opposed a due diligence test because it would place too heavy a burden on victim States). It may be that the Commission declined to change the standard of responsibility because the issue was being addressed in its work on international liability for injurious consequences arising out of acts not prohibited by international law. McCaffrey, loc. cit. n. 79, at p. 521 (indicating that the Commission wished to prevent an overlap of work and therefore it initially side-stepped the issue). However, logistic reasons for Commission procedure will provide little solace to States that invoke a water law treaty to seek protection from transboundary harm. Even if the Commission would finalize its work on liability with unexpected progressive outcomes, that would not affect the water law treaty that, if the aim of the General Assembly is realized, will be concluded before the Commission comes close to finalizing its discussion on liability.

120. The word ‘appears’ is appropriate – for no apparent reason the Commission did not discuss this critical question to which it had devoted so much of its energy in the context of Art. 7.

121. Since a State that acts diligently yet causes significant harm can act lawfully, it must also be able to act in conformity with the principle of equitable use.

122. See for a discussion of earlier ILC proposals to this effect: McCaffrey, loc. cit. n. 79, at pp. 524–525. Special Rapporteur Rosenstock proposed in his first Report that in the case of pollution Art. 5 would be subordinate to Art. 7, but that would be rebuttable by demonstrating ‘extraordinary circumstances’; UN Doc. A/CN.4/451 (1993) para. 20.

123. There are also suggestions to that effect in the literature: Lammers, op. cit. n. 92, at pp. 363–364; Handl, loc. cit. n. 6, at p. 132.

124. Art. 5 somewhat confuses this latter conclusion, as it states that, in pursuing equitable use, States ‘shall use international watercourses consistent with adequate protection thereof.’ This suggests that even when significant pollution is lawful under Art. 21(2) because the State of origin has acted diligently, Art. 5 may declare it unlawful. Or is it conceivable that significant harm from pollution is consistent with ‘adequate protection’? The ILC has not adequately addressed these issues.

125. Cf., Bodansky, D., ‘Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond’, 18 Ecology LQ (1991) pp. 719–720Google Scholar (drawing a comparable conclusion with regard to the general obligations of the Law of the Sea Convention).

126. It is included, e.g., as an objective in Art. 2 of the 1994 Convention on the Protection of the Danube, supra, n. 21; Art. 2(5)(c) of the Helsinki Convention, supra, n. 48; Art. 1 of the Mekong Agreement, supra, n. 24. See generally for an overview of relevant authorities: Hey, loc. cit. n. 6.

127. Kroes, M., ‘The Protection of International Watercourses as Sources of Fresh Water in the Interest of Future Generations’, in Brans, et al. , eds., op. cit. n. 10Google Scholar; Brunnee and Toope, loc. cit. n. 46, at pp. 65–68.

128. Brunnee and Toope, loc. cit. n. 46, at p. 67 (arguing that the notion of sustainable development must be anchored in international watercourse law, and must be linked to the concept of equitable use).

129. Several members considered the concept too vague or to be stil evolving. See the dicussion by Kroes, loc. cit. n. 127. The Commission confined itself to citing from Agenda 21 in the Commentary on Art. 5, para. 3. See for a proposal to include an express definition of the concept of sustainable utilization in the articles: Westcoat, J.L. Jr., ‘Beyond the River Basin: the Changing Geography of International Water Problems and International Watercourse Law’, 3 Colorado J Int. Env. L & Pol. (1992) pp. 301–330, at p. 326.Google Scholar

130. Art. 5 requires that States shall use and develop international watercourses with a view to attaining optimal utilization. The Commission notes that optimum utilization refers to the greatest possible stafisfaction of all the needs of watercourse States (Commentary on Art. 5, para. 3). But the concepts are completely value-neutral. Do more chloride discharges in France, which sustain employment in Strasbourg, but cause financial damage in the Netherlands, enhance or reduce overall benefits? See generally: Hafner, G., ‘The Optimimum Utilization Principle and the Non-Navigational Uses of Drainage Basins’, 45 Austrian J Pub. IL (1993) pp. 113–146.Google Scholar

131. Art. 24(2)(a).

132. The Commentary on Art. 24, para. 3 notes that this provision ‘in no way affects the application of articles 5 and 7.’ This lack of clarity as to whether the concept had an independent meaning for the principle of equitable use was criticized in comments by the United States on the draft adopted upon first reading, which proposed to delete the concept: UN Doc. A/CN.4/447 (1993) p. 43.

133. See McCaffrey, S.C., ‘Background and Overview of the International Law Commission's Study of the Non-Navigational Uses of International Watercourses’, 3 Colorado J Int. Env. L & Pol. (1992) pp. 17–29Google Scholar, at p. 28. This conforms with long-established practice in the Commission; see Sinclair, op. cit. n. 55, at pp. 46–47.

134. Special Rapporteur Rosenstock was cited as stating that the articles ‘reflect the law as it is and not as it should be’; see Rahman, loc. cit. n. 6, at p. 18. However, this is surely an overestimation of our knowledge of the opinions and practice of States on issues such as ecosystem protection and the protection of human needs. The exception is arguably the customary obligation to prevent significant harm resulting from pollution; see for an analysis of the relevant sources Lammers, op. cit. n. 92, but even here evidence is equivocal. See generally Bodansky, D., ‘Customary (and not so Customary) International Environmental Law’, 3 Indiana Journal Global Legal Studies (1995) pp. 105–119.Google Scholar

135. See Sinclair, op. cit. n. 55, at pp. 37–39.

136. The Commission agreed in principle on the framework approach in 1980; see ILC Yearbook 1980 Vol. II, Part 2, pp. 112–13. See the Commentary on the framework approach in the articles adopted upon second reading: Commentary on Art. 3.

137. Idem. The Commission created confusion on the last point by inserting Art. 3(1), that provides that: ‘Watercourse States may enter into one or more agreements … which apply and adjust the provisions of the present articles to the characteristics and uses of a particular international watercourse’ (emphasis added). The word ‘apply’ suggests that in the absence of watercourse agreement(s) the articles do not apply at all. During the 1994 debate in the Sixth Committee, some States indeed considered that the articles, even if adopted as a convention, would have no direct legal effects at all; see e.g., the remarks by Caflisch (observer for Switzerland), UN Doc. A/C.6/49/SR.22(1994)para. 67. If the intention of the Commission to create legal rules that actually would govern uses in the absence of a watercourse agreement was a genuine one, and if the discussion of the Commission on the legal implications of the article for existing and future agreements (see above) was not entirely redundant, we must assume that the word ‘apply’ does not imply that the articles lack any effect in the absence of such application. This is also implied by Art. 33, which provides that ‘any watercourse dispute concerning a question of fact or the interpretation or application of the present articles’ shall be settled in accordance with that article.

138. Commentary on Art. 3, para. 2.

139. It appears that the Commission attempted to imply differentiation in the way in which the articles were formulated. Certain articles, by virtue of their formulation, would only serve as guidelines and thus could not be subjected to dispute settlement procedures. Unfortunately, this proves to be an extremely unreliable guide. As explained above, the text suffers from a defect common to all framework conventions: normative ambiguity.

140. Earlier drafts included a provision that the articles would not affect treaties currently in force. See Art. X as provisionally adopted by the Commission at its Thirty-second session in 1980; ILC Yearbook 1984 Vol. II, Part 2, p. 85. The present text does not contain such a clause. Special Rapporteur Rosenstock considered it undesirable to presume the continued validity of existing treaties which are inconsistent with the articles and suggested that States were in the best position to avoid the unintended application of the draft, for instance by making a declaration upon accepting the instrument. Rosenstock, R., First Report on the Law of the Non-Navigational Uses of International WatercoursesGoogle Scholar, UN Doc. A/CN.4/451 (1993), para. 14.

141. Art. 3 provides that: ‘Watercourse States may enter into one or more agreements … which apply and adjust the provisions of the present articles to the characteristics and uses of a particular international watercourse or part thereof.’

142. Treaty concerning the construction and operation of the Gacikovo-Nagymaros system of locks, Budapest, 16 September 1977, 32 ILM (1993) p. 1247.

143. See for an account of the history and environmental consequences of the dam: Pearce, op. cit. n. 7, at pp. 256–262; for an argument that the dam does not cause unacceptable environmental consequences: Liska, M.B., ‘Development of the Slovak-Hungarian Section of the Danube’, in Blake, et al. , eds., op. cit. n. 6, at p. 175.Google Scholar

144. It is only when a third State – which is not a party to an agreement – would be adversely affected to a significant extent that the Commission proposes to restrict States' freedom to conclude agreements. Art. 3(2) of the ILC Articles. On these points the ILC articles did not follow the example set by the 1992 Helsinki Convention, supra, n. 48, that does require that such arrangements conform to the main principles set forth in the Convention. Art. 9(1).

145. McCaffrey, S. and Rosenstock, R., ‘The International Law Commission's Draft Articles on International Watercourses: an Overview and Commentary’, 5 Rev. EC & Int. Env. L (1996) pp.89–96CrossRefGoogle Scholar, at p. 94. See generally on the potential effects of ‘soft norms’: Handl, G., ‘Environmental Security and Global Change: The Challenge to International Law’, 1 YB Int. Env. L (1990) pp. 3–33Google Scholar, at pp. 7–8; remarks by Reisman, W.M. in the Panel on ‘A Hard Look at Soft Law’, 82 Proc. Am. Soc. Int. L (1988) pp. 373–330Google Scholar; Levy, M.A., ‘European Acid Rain: The Power of Tote-Board Diplomacy, in Haas, P.M., ed., Institutions for the Earth. Sources of Effective International Environmental Protection (1993) pp. 75–77.Google Scholar

146. The General Assembly has recommended that States negotiate a treaty. Supra, n. 2.

147. Westcoat, loc. cit. n. 129, at p. 330.