Environmental Protection of International Watercourses under International Law

Owen McIntyre

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317142201
• Edition: 1
• Topic: Jura
• Subtopic: Seerecht

McIntyre's work explains the legal means by which requirements of environmental protection influence the determination of a reasonable and equitable regime for allocating rights to riparian states to utilize shared freshwater resources. The work examines the means and processes by which environmental considerations can act upon the operation of the principle of equitable utilization. The volume provides a comprehensive analysis of the subject, outlining the development, scope and operation in general and customary international law of key rules of environmental protection.

Chapter 1
Introduction

In some respects, international law relating to the utilization of shared freshwater resources has become a great deal more settled in recent years. It is now beyond debate that the principle of ‘equitable utilization’ is the pre-eminent rule relating to the utilization of international watercourses.1 According to this rule, the determination of a reasonable and equitable regime for the utilization of an international watercourse is usually understood in terms of consideration of a number of relevant factors or criteria, including that of environmental protection.2 However, the central question remains as to the relative weighting or priority likely to be accorded to considerations of environmental protection as against other socio-economic or geo-physical factors in the determination of an equitable regime of utilization. Seminal codifications of this area of international law, such as the International Law Association’s 1966 Helsinki Rules3 and 2004 Berlin Rules,4 and the 1997 UN Watercourses Convention,5 have included, alongside the key principle of equitable utilization, versions of the rule prohibiting watercourse States from causing significant harm to other watercourse States through their use of a shared international watercourse. However, inclusion of the ‘no harm’ rule has given rise to confusion over whether it comprises a separate substantive rule, largely concerned with environmental protection,6 which might come into conflict with the principle of equitable utilization, or whether it merely serves to emphasize and prioritize environmental considerations within the balancing of interests process inherent in equitable utilization. Further, each of the codifications alluded to above contain additional detailed substantive provisions on the environmental protection of international watercourses, often without providing much in the way of guidance as to the relative significance of these provisions vis-à-vis the cardinal rule of equitable utilization.7 Nevertheless, it is abundantly clear that the issue of environmental protection of international watercourses cannot be separated from that of utilization of the watercourse. In this regard, the potential for conflict among States over shared water resources, either in relation to the quantity or quality of water available to each, is well documented.8

Therefore, in order to begin to understand the role and place of environmental considerations, it is necessary first to outline the theoretical framework within which the principle of equitable utilization exists and then to set out in detail the normative development and substantive content of both the equitable utilization and no-harm principles, as well as to explain the nature of the relationship between these principles. In so doing this work relies heavily on the work of a number of leading commentators. For example, in outlining the various principles of international law put forward by States to justify particular approaches to the issues of territorial sovereignty and integrity, it draws heavily on the work of McCaffrey who, as the long-standing Special Rapporteur on the Non-Navigational Uses of International Watercourses for the International Law Commission, conducted a number of extensive and authoritative studies on the development of international law and practice in this area.9 Other authorities on the history and development of international freshwater law extensively relied upon include, inter alia, Bruhacs,10 Teclaff,11 Lammers,12 and Tanzi and Arcari,13 who have made a thorough and authoritative study of the background to and negotiation of the seminal 1997 UN Convention on the Non-Navigational Uses of International Watercourses. One key issue which arises at the outset is that of legal definition of the unit of drainage to which principles of international law will apply.14 During negotiation of the 1997 Convention, States opted to retain their traditional preference for the narrower concept of an international watercourse rather than the more geo-physically holistic, and legally more far-reaching, concept of an international drainage basin, though leading commentators, such as Brunnée and Toope,15 argue that the parallel adoption of an ecosystems approach to the environmental protection of international watercourses makes such attempts to restrict the scope of the Convention largely redundant.

While both the principle of equitable utilization16 and that of prevention of significant harm17 are extensively discussed in existing works, this work seeks to clarify the role of environmental protection in particular, at least to the extent that it is possible to draw broad conclusions as to how environmental considerations might impact upon application of the principle of equitable utilization in practice. This issue has been explored rather less in the existing literature.18 Environmental considerations might impact upon the principle in a number of ways. First of all, a number of factors relevant to the application of the principle of equitable utilization, which are included in the non-exhaustive lists accompanying formulations of the principle in various codifications and conventions,19 might be described as primarily environmental in nature. Secondly, the inclusion of notions of sustainability among the central objectives of the principle of equitable utilization suggests that environmental factors would enjoy a certain priority, especially having regard to the parallels between the principle and the doctrine of ‘equitable principles – equitable result’ as applied by the ICJ in continental shelf delimitation cases. This is in addition to the inclusion of ‘environmental’ factors among those listed as relevant to the determination of an equitable and reasonable regime. Thirdly, the express elaboration in practically every recent watercourses convention of general application of specific rules on environmental protection, supplemental to the prevailing rule of equitable utilization, suggests that this issue is central to any modern regime for the utilization of shared watercourses.20 Such provisions would also usually prescribe the minimum procedural and institutional arrangements necessary to give effect to them. Both of the latter approaches described above provide a pretext under which the increasingly sophisticated rules and principles of general international environmental law, both firmly established and emerging, which act to articulate, reflect and protect environmental interests, can be invoked and applied within such a regime. Fourthly, the principle of prevention of significant harm has obvious significance for the environmental protection of international watercourses, and, thus, for the protection of States’ interests in using watercourses or their waters, and its express inclusion in all recent instruments21 as a separate, stand-alone rule of international law, supplemental to the principle of equitable utilization, serves to further buoy the significance of environmental factors. Indeed, the general obligation to prevent harm is well established in customary international law and brings with it a high degree of normative substance and sophistication, including, for example, the concept of due diligence and ancillary procedural obligations to cooperate.

At any rate, it quickly becomes quite clear from a detailed examination of the origins, development and application of both principles that equitable utilization provides the conceptual, substantive and procedural framework within which the likelihood, severity and equity of any harm to the watercourse or to other watercourse States, and thus considerations of environmental protection, may be taken into account. Of course, this is asking a great deal of a single, ill-defined normative principle and McCaffrey warns that it ‘has resulted in a degree of confusion and perhaps in an overloading of a principle whose implementation is already a complex matter’.22 Therefore, the central purpose of this work is to examine the means and processes by which environmental considerations can act upon the operation of the principle of equitable utilization.

As equitable utilization requires, by definition, the allocation of State rights in the use of an international watercourse on the basis of the somewhat nebulous concept of equity, it is useful to investigate the general role of equity and equitable principles in international law. While certain authors have provided thorough accounts of the role of equity in international law generally23 and, more particularly, in the apportionment of shared natural resources,24 where it has long played a central role, this work seeks to examine the application of equity to the apportionment and utilization of shared natural resources with a view to better understanding its potential role in the allocation of uses of international freshwaters in particular. An examination of the extensive body of case law on delimitation of the continental shelf and on the apportionment of fish stocks and other marine resources is singularly instructive in this regard. This work also seeks to understand how equity functions in relation to the requirements of environmental protection under general international law. An examination of the role of equity is particularly important as a process of equitable balancing, of one form or another, is increasingly regarded as central, not only to the apportionment of shared natural resources, but also to the duty to prevent significant harm, especially environmental harm. This is apparent, for example, in the proposal, contained in the International Law Commission’s 2001 draft Convention on the Prevention of Transboundary Harm from Hazardous Activities,25 that States potentially in dispute over the prevention of transboundary harm must negotiate an equitable balancing of interests in accordance with a range of factors listed in the draft, rather as watercourse States must establish an equitable regime for the utilization of shared freshwater resources under the principle of equitable utilization. Indeed, notions of equity are routinely employed in modern environmental protection regimes. Further, equitable concepts, such as that of proportionality, have long been employed to finesse the application of international law. Proportionality can function either to ensure that there remains some relationship of scale between the allocation of resources and the geo-physical or other circumstances of the States concerned, or that certain interests, such as considerations of environmental protection, are not adversely affected in a disproportionate manner.

In addition, in order to further understand the operation of the principle of equitable utilization in practice, it is very useful to examine State, judicial and arbitral practice in taking account of the other factors relevant to the utilization of a watercourse. While it is neither possible nor desirable, having regard to the nature and role of the principle of equitable utilization and the inherent diversity of international watercourses, to draw hard and fast conclusions as to the relative weight or priority to be attributed to each of these factors, this examination attempts to shed some light on the dynamics of the process of taking account of a wide range of relevant factors and to identify trends or ‘rules of thumb’. One author in particular has recently undertaken an exhaustive study of the role of the various criteria cited as relevant in the actual operation of the principle of equitable utilization26 and this work sets out to build on this achievement by asking what lessons can be learned from her findings as regards the role, operation and significance of environmental factors.

In seeking to understand the dynamics of the processes by which environmental considerations impact upon application of the principle of equitable utilization, it is necessary to outline the development, scope and operation in general and customary international law of key rules of environmental protection. Regardless of their precise normative status, these rules have a central role to play in articulating environmental values, standards and concerns and in providing conceptual and procedural frameworks within which such values, standards and concerns can be considered and protected. They provide legal grounds for potential complainan...