1
SIGNIFICANCE OF ENVIRONMENTAL PROVISIONS IN
MULTILATERAL WATER COURSE AGREEMENTS
BY
G.Q.M. FERDOUSUL HAQUE
2
CONTENTS
1.0 INTRODUCTION…………………………………………..…………………1
1.1 AIMS AND OBJECTIVES………………………………………..…………………………2
1.2 IMPORTANCE OF THE STUDY…………………………………..……………………….2
1.3 METHODOLOGY…………………………………………………….……………………..3
1.4 SCOPES AND LIMITATIONS………………………………………….…………………..4
1.5 BRIEF ANALYSIS OF CHAPTERS……………………………………….……………….4
2.0 THE ENVIROMENTAL PROVISIONS IN WORLD’S MAJOR
MULTILATERAL WATERCOURSE AGREEMENTS………….....................6
2.1 GLOBAL AGREEMENT………………………………………………………………….7
2.1.1 THE 1997 UNITED NATIONS CONVENTION ON THE LAW OF THE NONNAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES…………………..7
2.1.2 THE BERLIN RULES…………………...…………………………………………...9
2.2 REGIONAL AGREEMENTS......................................................................................…...9
2.2.1 EUROPEAN REGION………………………………………………………………..10
2.2.1.1 THE ESPOO CONVENTION………………………………………………...10
2.2.1.2 THE 1992 CONVENTION ON THE PROTECTION AND USE OF
TRANSBOUNDARY WATERCOURSES AND INTERNATIONAL LAKES…….10
2.2.2 THE SOUTHER AFRICA REGION………………………………………………...11
2.3 MULTILATERAL AGREEMENTS…………………………………………………….12
2.3.1 AGREEMENT REGARDING THE RHINE RIVER……………………………….12
2.3.2 AGREEMENT REGARDING RIO DE LA PLATA………………………………..13
2.3.3 AGREEMENT REGARDING THE DANUBE……………………………………..13
2.3.4 AGREEMENT REGARDING MEKONG…………………………………………..14
2.3.5 AGREEMENT REGARDING LAKE VICTORIA………………………………….15
3.0 ENVIRONMENTAL PROVISIONS AND THEIR SIGNIFICANCE…….16
3.1 THE DOCTRINE OF EQUITABLE AND REASONABLE UTILIZATION…………16
3.1.1 ORIGIN………………………………………………………………………………17
3.1.2 THE HELSINKI RULES…………………………………………………………….18
3.1.3 APPLICATION………………………………………………………………………18
3.2 THE TRANSBOUNDARY “NO HARM” PRINCIPLE………………………………...19
3.2.1 ORIGIN……………………………………………………………………………….19
3
3.2.2 APPLICATION…………………….…………………………………………………20
3.3 SUSTAINABLE DEVELOPMENT………………………………………………………20
3.3.1 ORIGIN……………………………………………………………………………….21
3.3.2 APPLICATION……………………………………………………………………….21
1. The principle of Intergenerational Equity……………………………………….21
2. The principle of Sustainable Use………………………………………………...21
3. The principle of Intragenerational equity………………………………………..22
4. The principle of Integration……………………………………………………...22
3.4 THE PRINCIPLE OF PREVENTIVE ACTION………………………………………...23
3.4.1 ORIGIN………………………………………………………………………………..23
3.4.2 APPLICATION………………………………………………………………………..23
3.5 THE PRECAUTIONARY PRINCIPLE…………………………………………………..24
3.5.1 ORIGIN………………………………………………………………………………..24
3.5.2 APPLICATION………………………………………………………………………..25
3.6 THE PRINCIPLE OF CO-OPERATION………………………………………………...26
3.6.1 ORIGIN………………………………………………………………………………..26
3.6.2 APPLICATION………………………………………………………………………..27
3.7 ENVIRONMENTAL IMPACT ASSESSMENT………………………………………….27
3.7.1 ORIGIN………………………………………………………………………………...28
3.7.2 APPLICATION………………………………………………………………………...28
3.8 THE POLLUTER-PAYS PRINCIPLE…………………………………………………….29
3.8.1 ORIGIN…………………………………………………………………………………30
3.8.2 APPLICATION………………………………………………………………………...30
3.9 THE ECOSYSTEM APPROACH (PROTECTION & PRESERVATION OF
ECOSYSTEMS)…………………………………………………………………………………31
3.9.1 ORIGIN…………………………………………………………………………………32
3.9.2 APPLICATION………………………………………………………………………...32
3.10 INTRODUCTION OF ALIEN OR NEW SPECIES…………………………………….33
3.10.1 ORIGIN……………………………………………………………………………….33
3.10.2 APPLICATION……………………………………………………………………….34
4.0 FINDINGS & RECOMMENDATIONS………………………………………35
4.1 FINDINGS……………………………………………………………………………………35
4.1.1 PRESENT STATUS OF THE ENVIRONMENTAL PROVISIONS OF THE
MULILATERAL WATERCOURSE AGREEMENTS………………………………………35
4
4.1.2 PROBLEMS IN THE IMPLEMENTATION OF ENVIRONMENTAL
PROVISIONS............................................................................................................................35
4.1.3 INADEQUACY OF THE ENVIRONMENTAL PROVISIONS IN PREVENTING
OVER USE OF FRESH WATER AND ITS POLLUTION AS A WHOLE………………...36
4.1.4 LACK OF COOPERATIVE MANAGEMENT………………………………………..36
4.2 RECOMMENDATIONS……………………………………………………………………..38
5.0 CONCLUSION………………………………………………………………….40
BIBLIOGRAPHY…………………………………………………………………...41
5
1.0 INTRODUCTION:
Water is one of the most widely shared resources on the planet, and the most important element for
human survival after oxygen. It has the capacity to unite the people and states and to incite conflict
among them as they compete for it. From the ancient times men had made many watercourse
agreements to solve the water related issues. The United Nation Food and Agriculture Organization
have identified more than 3,600 treaties relating to international water resources dating between AD
805 and 1984, the majority of which deal with some aspect of navigation, leaving a few dealing with
the protection, preservation and sustainable use of the watercourses.
There are more than two hundred sixty three rivers, lakes and aquifers crossing across Africa, North
America, South America, Asia, and Europe. They cover approximately 40% of the earth’s population
and generate about 60% of the global freshwater flow1. When Rivers, aquifers and other water bodies
transgress national boundaries, they give rise to major economic and environmental concerns. These
international watercourses may be used to draw international boundaries, may serve as international
highways for countries without direct access to the sea, and may serve non-navigational purposes,
such as irrigation, fishing and the production of hydroelectric energy. These economic and
environmental concerns often lead to potential conflicts. Moreover, the over-exploitation through soil
degradation, pollution, and unsustainable chemical use has caused the freshwaters to decline at a
considerable rate. This has resulted in the loss of biodiversity from freshwater ecosystems.2
To avoid the international conflicts and to save the fresh waters and their ecosystems, many rules and
principles have been incorporated to regulate the cooperative management of transboundary
watercourses. These rules and principles are known as the environmental provisions3. The normative
content of such provisions is becoming more clearly defined, both through their on-going elaboration
into a sophisticated corpus of legal requirements and through growing understanding of their mutual
relevance. These provisions are increasingly supported by sophisticated rules of procedure, adding
further to their normative clarity and justifiability.
1
Report conducted by Flavia Loures, Dr. Alistair Rieu-Clarke & Marie-Laure Vercambre, WWF articles,
http://www.wwf.org.uk/wwf_articles.cfm?unewsid=2272.
2
Ecosystem" means a dynamic complex of plant, animal and micro-organism communities and their non-living environment
interacting as a functional unit- article 2 of the Convention on Biological Diversity.
3
The rules and principles, which are incorporated for the protection, preservation and sustainable utilization of the various
components of environment, are called the environmental provisions.
6
1.1 AIMS AND OBJECTIVES
Transboundary watercourses present a challenge in terms of management as they constitute different
states with different interests as per their national needs and different groups of people in the different
states with different needs. The scarceness and non-substitutable nature of water makes it a potential
cause for conflict. Moreover, since the time of industrialization, Population growth and economic
expansion have been putting a huge pressure on freshwaters. In many instances, the states of the
world have recognised such problems and incorporated several environmental provisions in their
multilateral watercourse agreements for addressing such problems.
This study seeks to set out the environmental provisions of various multilateral watercourse
agreements and their contributions in diminishing the problems of freshwater issues. The paper
analyses the environmental provisions of the world’s major multilateral watercourse agreements and
investigates the extent to which each has been applied to the law on international watercourses.
Further, it attempts to finalize the likely impacts of the provisions within the overarching doctrine of
equitable utilisation of international watercourses, in the protection, preservation and sustainable
utilization and development of the products of the transboundary watercourses.
1.2 IMPORTANCE OF THE STUDY
The scale of the freshwater challenge is enormous, especially with climate change making wateravailability more unpredictable and causing more frequent, widespread droughts and floods. Now
about 1.4 billion people currently live in river basins with high environmental water stress, covering
over 15% of the world’s land surface and around 2.6 billion people have no access to adequate
sanitation4. As a result, more than five million people die each year from water-related diseases that
are mostly preventable. Water shortages already affect two billion people in over 40 countries. Of all
biomes, freshwater ecosystems are the most threatened, and 1/5 of freshwater fish species are in rapid
decline. Yet the world has been facing with increasing water needs as populations rapidly grow.
This study attempts to draw conclusions as to the likely impacts of the environmental provisions in
relation to the significance of environmental considerations within the overarching doctrine of
4
The report conducted by IWMI proposed that the number is likely to escalate if water withdrawals increase apace without
secured environmental water allocations to redress the balance between the water requirements of the environment and
those of other sectors, stimulating considerable cross-sectorial debate and interest. For details, see International Water
Management
Institute
(IWMI)
webpage,
http://www.iwmi.cgiar.org/Research_Impacts/Research/themes/WaterManagementandEnvironment/WAEF/lessons.aspx
(last visited 27, October, 2011)
7
“Equitable Utilisation” of international watercourses. It mainly focuses on the contributions of the
environmental provisions in International cooperation, especially among the riparian countries in
order to address the transboundary nature of many water issues. Further, it addresses the problems of
incorporating a common multilateral agreement5 among the riparian states and thereby, attempts to
find out the solutions in making the coordinated management of transboundary fresh waters.
1.3 METHODOLOGY
My research is based on a survey and analysis conducted on the world’s major multilateral
watercourse agreements both of declaratory and conventional natures, websites relating to the
international watercourses6, recorded riparian state practices, and on academic commentary, in
relation to a number of established and emerging rules and principles international environmental law7
in order to arrive at a more complete understanding and significance of the environmental provisions
in multilateral watercourse agreements. I hope to shed light on the following questions through my
research:
1) Why and how the environmental provisions have been introduced in the multilateral
watercourse agreements?
2) What are the contributions of customary international law, international and regional
organizations in realizing the environmental provisions? For example, what are the contributions
of United Nations, United Nations Economic Commission for Europe, South African
Development Community, Helsinki Rules, and Berlin Rules etc.?
3) How and to what extent the environmental provisions are contributing in the protection,
preservation, management and sustainable development of the multilateral watercourses?
5
The multilateral agreements are applicable to more than two countries. For instance SAARC is applicable to Bangladesh,
Bhutan, India, the Maldives, Nepal, Pakistan, Sri Lanka and Afghanistan.
6
Watercourse means a system of surface waters and ground waters constituting by virtue of their physical relationship a
unitary whole and normally flowing into a common terminus; International watercourse means a watercourse, parts of
which are situated in different States- Convention on the Law of the Non-navigational Uses of International Watercourses,
1997, article 2(a) and 2(b).
7
International Environmental law comprises those substantive, procedural and institutional rules of international law which
have as their primary objective the protection of the environment- Philippe Sands, The Principles of International
Environmental Law, page15, Para- 2
8
4) Why the world is still facing critical water issues despite of the environmental provisions?
(a) What is the present situation of multilateral water course agreements? And
(b) What are the problems in implementing the multilateral watercourse agreements?
1.4 SCOPES AND LIMITATIONS
This is a qualitative research based on the information collected from various multilateral watercourse
agreements and internet & juristic articles, recorded state practices & commentaries regarding these
agreements; which will focus on the environmental provisions of multilateral watercourse agreements
and their importance in the cooperative protection, preservation and sustainable management of the
transboundary fresh water resources.
However, this research is limited to the transboundary international rivers and lakes only. It is also
limited to desktop works and accounts for multilateral water course agreements only.
1.5 BRIEF ANALYSIS OF CHAPTERS:

First chapter is the introductory of the study.

Second chapter gives an account of all the existing environmental provisions in the
multilateral watercourse agreements. It also gives an account of the world’s major
multilateral and regional agreements8 together with the global agreement9 namely The 1997
United Nations Convention on the Law of the Non-Navigational Uses of International
Watercourses. It then, gives a brief explanation on how and to what extent these
agreements have incorporated the environmental provisions.
8
The multilateral agreements, which are applicable for a local area, are the general or regional treaties. For instance
Convention on Wetlands of International Importance especially as Waterfowl Habitat (1971), The SADC Revised
Protocol on Shared Watercourse Systems (2000) are regional treaties. The SADC (South Asian Development Community)
is applicable to Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland,
Tanzania, Zambia, and Zimbabwe.
9
Global agreements are applicable on every countries of the world. However they are binding like the global treaties. For
instance The 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses
9

Third chapter discusses the significance and origins of the environmental provisions in
multilateral watercourse agreements. These include, The doctrine of Equitable and
Reasonable Utilization; The Transboundary No Harm Principle; The Concept of
Sustainable Development; The Precautionary Principle; The Principle of Preventive Action;
The Principle of Co-Operation; The Provision of Environmental Impact Assessment; The
Polluter-Pays Principle; The concept of the Protection & Preservation of Ecosystem; The
Provision regarding Introduction of New Aliens or Species.

Fourth chapter attempts to find out the crucial features of the environmental provisions of
multilateral watercourse agreements and the problems in their recognition, implementation
and enforcement. This chapter also makes certain recommendation focusing on key issues
for further improvement and development of the provisions in the multilateral watercourse
agreements for protecting the fresh waters and transboundary fresh water resources.

Fifth chapter is the concluding chapter of this study.
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2.0 THE ENVIROMENTAL PROVISIONS IN WORLD’S MAJOR
MULTILATERAL WATERCOURSE AGREEMENTS
Since the twentieth century, the focus of negotiation and treaty-making10 has shifted away from
“navigation and boundary demarcation” towards the utilization, development, protection and
conservation of water resources. The issues requiring negotiation and agreement among states have
grown more complex and intricate, but the practice of seeking a negotiated, agreed solution has
remained.
As we go through some of the major multilateral watercourse agreements of the world, we find more
or less ten environmental provisions in those agreements. They are:
I.
II.
The doctrine of Equitable and Reasonable Utilization
The Transboundary No Harm Principle
III.
The Concept of Sustainable Development
IV.
The Precautionary Principle
V.
VI.
VII.
VIII.
IX.
X.
The Principle of Preventive Action
The Principle of Co-Operation
The Provision of Environmental Impact Assessment
The Polluter-Pays Principle
The concept of the Protection & Preservation of Ecosystem
The Provision regarding Introduction of New Aliens or Species
These provisions have come from general and customary rules and principles, juristic opinions and
from the negotiations of the riparian countries. Now, we will see how these provisions have been
reflected in these agreements:
10
Treaty is an instrument intended to create international legal rights and obligations between the parties. The 1969 Vienna
convention defined treaty as, “international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and whatever its
particular designation.
11
2.1 GLOBAL AGREEMENT
2.1.1 The 1997 United Nations Convention on the Law of the Non-Navigational
Uses of International Watercourses
The 1997 watercourse convention is the only treaty governing shared freshwater resources that is of
universal applicability. In 1970, the U.N. General Assembly requested the International Law
Commission (ILC)11 to produce a set of draft rules on the equitable uses of international watercourses,
based on the Helsinki Rules12 of 1966. After twenty-seven years, the ILC finished its work on the
U.N. Convention, which was approved on May 21, 1997, by the U.N. General Assembly. Though unratified, the document is regarded as an important step towards arriving at international law governing
water.13
The U.N. Convention clearly adopts a systematic approach to allocation and management problems. It
applies to both rivers and lakes, like the Helsinki Rules, and includes all of the river’s tributaries that
flow into the river. The convention provides a framework of principles and rules that may be applied
and adjusted to suit the characteristics of particular international watercourses.
Article 5, contained in Part II, reflects the principle of Equitable and Reasonable Utilization. It
requires a State to utilize a shared watercourse in an equitable and reasonable manner that so that the
other states can also utilize. Article 5 also set forth the principle of equitable participation in
paragraph two.14By joining the principle of equitable participation with the principle of equitable and
reasonable utilization, article 5 has elaborated the implication of the Equitable and Reasonable
Utilization principle.
The 1997convention has translated the provisions of No Harm principle and Polluter Pays principle
in to obligations in its article 7. Article 7(1) requires the States to take all appropriate measures to
prevent the causing of significant harm to other States sharing an international watercourse. But
Where such harm is caused even after taking all appropriate measures, the concerned State is required
11
12
13
The ILC is an official United Nations organization whose job is to codify customary law and draft new treaties.
The advisory guidelines for the apportionment of shared rivers or lakes among two or more states, published by the
International Law Association in 1966 at Helsinki are called the Helsinki Rules. These rules were the first attempt to create
global standards for nations to use in apportioning rivers and lakes that cross the border or that form the border between
two or more countries. For detail, see heading no- 2.1.2
Raj, Krishna; Salman, Salman M.A. (1999). "International Groundwater Law and the World Bank Policy for Projects on
Transboundary Groundwater". In Salman, Salman M. A. - Groundwater: Legal and Policy Perspectives: Proceedings of a
World Bank Seminar. World Bank Publications. p. 173. ISBN 082134613X.
14 See Article 5 in annex A
12
eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation as
required by article 7(2).15
There is a collision between article 5 and article 7. After making the draft of the 1997 convention, a
central debate arose whether to give precedence to the doctrine of equitable utilization with its long
established roots in water quantity allocation or the rule of "no harm" with its transboundary pollution
origins16. However, it was set forth that the two principles are best seen as being complementary.17
The principle of Co-operation is reflected in article 8, 9 and in the whole of part III (Article 11-19).
Article 8 requires States to co-operate among themselves for the optimal utilization and adequate
protection of the shared water course. For this end, article 9 provides the nature and extent of the data
to be shared with other states. Besides providing certain obligation of the notifying state and
procedures in the absence of reply of notification Part III introduced the provision of Environmental
Impact Assessment which will assess the potential effects of the planned project. The state making
the project has to serve the EIA of the planned project to the riparian countries.
Article 21 and 27 incorporated the principle of Preventive Action. According to these articles, the
states are bound jointly or individually to prevent or reduce any pollution or other conditions which
can cause serious harm to the riparian states.
The principle of Sustainable Development has also been incorporated in the 1997 convention,
though in a technical manner. In article 24, the meaning of “Management” has been referred to as
Sustainable development, rational and optimal utilization, protection and control of the international
shared water course.
Article 20 and 22 respectively reflect the provision of Protection and preservation of Ecosystem
and the provision of Introduction of Alien or New Species. These two provisions are comparatively
newer provisions. Hence, no detailed explanations regarding these provisions have been given in the
1997 convention.
15
See Article 7 in Annex A
Article 5, 6 and 7 are the heart of the collision. Article 5(1) provides that "Watercourse states shall... utilize an
international watercourse in an equitable and reasonable manner" and Article 6 contains a non-exhaustive list of factors
to be considered in determining what is equitable and reasonable. This list is consistent with the established practice
enunciated by the Helsinki Rules and interstate judicial decisions going back to Kansas vs. Wyoming 16. Again Article 7
provides "Watercourse States shall exercise due diligence to utilize an international watercourse in such a way as not to
cause significant harm to other watercourse States". Thus at this point we have a direct clash between the doctrine of
"equitable utilization" of Article 5 and the "no harm" rule of Article 7. This is a collision between the long established
customary international law for allocation of water quantity and the "no harm" concept for the protection of water quality.
Article 7(2) attempts to accommodate the two clashing approaches by providing a process of consultation and agreement,
and if agreement cannot be reached of dispute resolution.
17 United Nations Audio visual Library of International Law, www.un.org/law/avl.
16
13
2.1.2 THE BERLIN RULES
Though the Berlin rules do not have the legal binding force of a treaty or convention, it possess the
applicability of global standard for water allocation by virtue of the fact that they reflect the
established customary principles of international water law. In 2004, the International Law
Association approved the “Berlin Rules” for international water allocation.
The Berlin Rules basically seek to update and amplify the Helsinki rules of 1966 and the provisions of
the U.N. Convention of 1997. In other word, they are the updated version of the Helsinki rules and the
provisions of the 1997 convention. The principles incorporated in the document are firmly based on
generally recognized customary international law18. The Berlin Rules are broader in their application
than either the Helsinki Rules or the U.N. Convention of 1997. The Berlin rules apply to all waters
and they require states to use integrated management and sustainable management of domestic
waters.19
2.2 REGIONAL AGREEMENTS
Some of the regional organizations have formulated agreements and protocols supporting
collaborative water resource initiatives for mitigating existing disputes and protect, preserve and
develop the shared watercourses. Among them, the agreements of European region and South African
region are major ones20.
2.2.1 EUROPEAN REGION
European governments have addressed regional water issues by such agreements as the Convention
on Environmental Impact Assessment in a Transboundary Context, 1991 and the Convention on the
Protection and Use of Transboundary Watercourses and International Lakes, 1992.
18
See Report of Water Resources Law Committee of the ILA, listed in International Law Association, Report of the 71st
conference, 335 (2004) (“Berlin Rules”), www.ilahq.org/en/committees/index.cfm/cid32.
19 Under article 6 of the Berlin Rules, States are required to use their best efforts to integrate appropriately the management
of waters with the management of other resources.
Under article 7 of the Berlin Rules, States are required to take all appropriate measures to manage waters sustainably.
20 Although the north and South America have regional treaties with Canada, like the 1909 Washington Treaty Relating to
Boundary Waters and Questions Arising along the Boundary between the US and Canada; The 1978 Great Lakes Water
Quality Agreement, these are bilateral treaties. Hence they are out of the ambit of this paper.
14
2.2.1.1 THE ESPOO CONVENTION
The Espoo convention or the Convention on Environmental Impact Assessment in a Transboundary
Context was adopted in Espoo (Finland) on 25/02/1991. This convention mainly focuses on the
principle of “Co-operation” to achieve “sustainable development”. For that end, it has connected both
the “Precautionary principle” and “Preventive Action” with the Principle of “Co-operation”. The
convention seeks to enhance international co-operation in assessing environmental impact in
particular in a transboundary context for ensuring environmentally sound and sustainable
development. Its main aim is to develop anticipatory policies so that the adverse environmental
impacts can be anticipated before decision making and be prevented, mitigated and monitored while
implementing the decisions.
This Environmental Impact Assessment Convention stipulates the obligations of Parties to assess the
environmental impacts at an early stage of planning so that they can anticipate the risk before
developing any project that might have adverse impact on the environment of the shared water course,
particularly in a transboundary context. The EIA Convention prescribes measures and procedures to
prevent, control, or reduce any significant adverse effect on the environment likely be caused by a
proposed activity or any major change to an existing activity.
2.2.1.2 THE 1992 CONVENTION ON THE PROTECTION AND USE OF
TRANSBOUNDARY WATERCOURSES AND INTERNATIONAL LAKES
The 1992 watercourse convention was adopted in Helsinki, 17 March, 1992 and came in to force in 29
April, 1996. It is the first regional convention to adopt the general rules applicable to all
transboundary waters between the party states as well as between party states and non-party states. It
incorporated all the environmental provisions including the guidelines21 for the discharge of specific
industries deriving hazardous substances, for the protection and use of transboundary watercourses
and international lakes.
The convention requires the parties to prevent pollution of waters which causes or is likely to cause
transboundary impact, to use transboundary waters in an ecologically sound and rational, and
reasonable and equitable way, and to ensure conservation and restoration of ecosystems. The
21
Art- III, the Constitution of United States. § 2: “The judicial Power shall extend … to Controversies between two or more
states . . . . In all Cases . . . in which a State shall be Party, the Supreme Court shall have original jurisdiction.” The
Judiciary Act of 1789 gave the Court exclusive jurisdiction to hear these types of disputes.
15
convention encourages the adoption of preventive measures at source22, prohibits the transfer of
pollution to other parts of the environment, and calls for measures to be guided by the application of
the “Precautionary” and “Polluter-pays” principles.
2.2.2 THE SOUTHER AFRICA REGION
The Southern African Development Community (SADC) was established in 1992 through a treaty,
with the objective, among others, of promoting economic integration and “Sustainable Utilization of
Natural Resources and Effective Protection of the Environment”. The SADC region includes 15
major river basins which are transboundary or shared between two or more countries. In 1995, SADC
member states signed the Protocol on Shared Watercourses in the SADC region which was revised in
august 2000.
The object of the Revised Protocol on Shared Watercourse Systems in the Southern African
Development Community (SADC), 2000 is to foster closer co-operation for judicious, sustainable
and co-ordinated management, protection and utilization of shared watercourses and advance the
SADC agenda of regional integration and poverty alleviation23.The Protocol heavily drew the
environmental principles for watercourse management, laid out in the 1997 UN Convention on the
Law of Non-navigational Uses of International Watercourses. The protocol requires the state parties
to respect the existing rules of customary or general international law relating to shared watercourse
utilization and management. The party states are also required, individually or jointly to protect and
preserve shared watercourse ecosystems and exchange the notification of any planned measure which
may have adverse environmental effect on the watercourse and where the harm is caused
2.3 MULTILATERAL AGREEMENTS
There are 263 rivers and many lakes which cross through two or more countries. And there have been
numerous agreements regarding the use of shared watercourse. Even though, about 67% of the shared
watercourse agreements are bilateral. It is uncertain as to why the states are reluctant to make
multilateral agreements rather than bilateral agreements. But it is evident that the difficulty of
negotiations increases when the number of parties increases. Some of the major multilateral
watercourse agreements are discussed below:
22
Article- 2(1), (2). The transboundary impact is defined as any significant adverse effect on the environment resulting from
a change in the conditions of transboundary waters caused by human activity. Article- 1(2).
23 Article-2, Revised Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC),
2000.
16
2.3.1 AGREEMENT REGARDING THE RHINE RIVER
The Rhine of Europe flows through France, Switzerland, Netherlands and Germany. It has been the
subject of five environmental protection treaties apart from earlier agreements on fishing and
navigation. The newer treaties or agreements repealed the older ones24. The latest multilateral
agreement is the Convention on the Protection of the Rhine, 1999.25
It sets out the guidelines including the Precautionary principle, the Polluter-Pays principle and the
principle of Sustainable Development26 for achieving the sustainable development of Rhine
ecosystem, the production of drinking waters from Rhine, the improvement of the sediment quality,
general food preservation27. The 2001 Programme on the Sustainable Development of the Rhine has
been incorporated to implement the aims and principles of the Convention on the Protection of the
Rhine, 1999.
24
25
All the multilateral agreements of the Rhine (excluding its tributaries)- Programme on the Sustainable Development of the
Rhine, 2001; Convention on the protection of the Rhine, January, 1999; Convention concerning the collection, storage,
and discharge of waste from ships navigating along the Rhine and other inland waters, September 9, 1996; Supplementary
protocol to the convention on the protection of the Rhine against pollution by chlorides, September 25,1991; Agreement
between the government of the Land Baden-Württemberg and the Swiss Federal Council concerning the joint construction
and operation of a monitoring and control station downstream of Basel to monitor the water quality of the River Rhine,
May 17, 1990; The Rhine Action Programme, 1986; Convention on the protection of the Rhine against pollution from
chlorides, signed at Bonn, December 3, 1976; Convention on the protection of the Rhine against chemical pollution,
December 3, 1976; Agreement withdrawal of water from Lake Constance, April 30, 1966; Agreement on the international
commission for the protection of the Rhine against pollution (with protocol of signature), signed at Bern, April 29, 1963;
Treaty between Switzerland and Austria-Hungary for the straightening of the Rhine from the mouth of the three until Lake
Constance, December 30, 1892.
The signatories are- France; Germany, Federal; Luxembourg; Netherlands; Switzerland
The principles set out in article 4 of the Convention on the Protection of the Rhine, 1999 are- (a) precautionary principle;
(b) principle of preventive action; (c) principle of rectification, as a priority at source; (d) polluter-pays principle; (e)
principle of not increasing damage; (f) principle of compensation in the event of major technical measures; (g) principle of
sustainable development; (h) application and development of the state of the art and best environmental practice; (i)
principle of not transferring environmental pollution from one environment to another.
27 According to article 3, the aims of the Convention On the Protection of the Rhine, 1999 are- 1.Sustainable development of
the Rhine ecosystem, in particular through; The production of drinking water from the waters of the Rhine; 3.
Improvement of sediment quality in order that dredged material may be deposited or spread without adversely affecting
the environment; 4. General flood prevention and protection, taking account of ecological requirements; 5. To help restore
the North Sea in conjunction with the other actions taken to protect it.
26
13
2.3.2 AGREEMENT REGARDING RIO DE LA PLATA
Rio de la Plata of Latin America flows through Brazil, Argentina, Paraguay, Bolivia and Uruguay.
Despite of being the second largest river of Latin America, the La Plata has experienced very few
multilateral agreements due to the mistrust and mutual suspicion among the riparian countries resulted
from a series of conflicts and colonial legacy28. Without its tributaries i.e. the Pilcomayo29 and
Paraná30, Rio de la Plata has experienced only one multilateral agreement for the whole basin. It is
the Treaty on the Rio de la Plata Basin, 1969.31
The purpose of the Treaty on the Rio de la Plata Basin, 1969 is to promote the harmonious
development and physical integration of the river La Plata Basin. It sets forth principles of Integrated
and Equitable Development, Reasonable Utilization and Conservation. Under this treaty, The
Contracting Parties undertake to promote the identification of areas of common interest, to conduct
studies, programs and works and to formulate legal instruments to, inter alia, facilitate navigation,
promote the rational use of water resources and preserve animal and plant life32. Collective action by
the Parties must take place without prejudicing projects and undertakings that the Parties decide to
implement within their own territories, in accordance to international law and good practice between
neighbouring and friendly countries.33
2.3.3 AGREEMENT REGARDING THE DANUBE
The Danube in Europe flows through Romania, Hungary, Austria, Yugoslavia (Serbia and
Montenegro) Germany, Slovakia, Bulgaria Bosnia and Herzegovina, Croatia, Ukraine, Czech
Republic Slovenia Moldova Switzerland Italy, Poland and Albania. It has a very long history of
agreements and treaties. But very few of them are multilateral agreements34.
28
For detail, visit http://www.grid.unep.ch/proser/maps/latinamerica/laplata/php
29
Agreement constituting the trilateral commission for the development of the Pilcomayo river basin, September 2, 1995 is
the multilateral watercourse agreement among Argentina, Bolivia and Paraguay.
30 Agreement on Paraná River projects, October 19, 1979 is the multilateral watercourse agreement among Argentina, Brazil
and Paraguay.
31 The signatories are- Argentina, Bolivia, Brazil, Paraguay and Uruguay
32 Treaty on Rio de la Plata, 1969, Article- 1
33 Ibid. article- 5
34
All the multilateral agreements of Danube (excluding its tributaries)- Convention on cooperation for the protection and
sustainable use of the River Danube, June 29, 1994; Agreement between the Federal Republic of Germany and the
European Economic Community, on the one hand, and the Republic of Austria, on the other, on cooperation on
14
The most important basin-wide agreement is the Convention on Cooperation for the Protection and
Sustainable Use of the Danube River, June 29, 199435. The main objective of the Danube River
Protection Convention (DRPC) is to ensure the sustainable and equitable utilization of surface waters
and groundwater of the Danube. 36
The convention requires the parties to co-operate on fundamental water management issues by taking
all appropriate legal, administrative and technical measures to at least maintain and where possible
improve the current water quality and environmental conditions of the Danube river and of the waters
in its catchment area, and to prevent and reduce as far as possible adverse impacts and changes
occurring or likely to be caused.37
2.3.4 AGREEMENT REGARDING MEKONG
The Mekong River flows through six countries. It begins in China and flows through Myanmar
(Burma), Thailand, Laos, Cambodia, and Vietnam before emptying into the Mekong Delta in
Vietnam. It has been subject of four multilateral agreements38. The most important of them is the
Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, April 5,
1995.
The key principles of the agreement are sustainable development, environmental protection,
cooperation, mutual benefits, basin wide management and equitable water use. It includes only two
binding clauses, the requirements for notification of intra-basin uses and inter-basin diversions and for
the maintenance of minimum natural flows. The two key processes of the agreement are the
management of water resources in the Danube Basin, December 1, 1987; Convention regarding the regime of navigation
on the Danube, August 18, 1948; Convention instituting the definitive statute of the Danube, July 23, 1921.
35 The signatories are – Austria, Bulgaria, Croatia, the Czech Republic, Germany, Hungary, Moldova, Romania, Slovakia,
Slovenia and Ukraine and the European Community.
36
This involves: the conservation, improvement and rational use of surface waters and groundwater; preventive measures to
control hazards originating from accidents involving floods, ice or hazardous substances; measures to reduce the pollution
loads entering the Black Sea from sources in the Danube River Basin.
37
See http://www.icpdr.org/icpdr-pages/drpc.htm
38
The Multilateral agreements of the Mekong are- Agreement on the cooperation for the sustainable development of the
Mekong River Basin, April 5, 1995; Declaration concerning the Interim Committee for Coordination of Investigation of
the Lower Mekong Basin, January 5, 1978; Joint declaration of principles for utilization of the waters of the lower
Mekong Basin, signed by the representatives of the governments of Cambodia, Laos, Thailand, and Vietnam to the
Committee for Coordination of Investigations of the Lower Mekong Basin, January 31, 1975; Statute of the Committee for
Coordination of Investigations of the Lower Mekong Basin established by the governments of Cambodia, Laos, Thailand,
and the Republic of Viet-Nam in response to the decisions taken by the United Nations Economic Commission for Asia
and the Far East, October 31, 1957
15
development of a Water Utilisation Programme (WUP) which includes the development of rules for
water use, and the development of a Basin Development Plan (BDP).
It commits parties to the protection of the environment, the application of the principle of reasonable
and equitable utilization and the prevention and cessation of harmful effects, as well as the application
of state responsibility for harmful effects which cause substantial damage.39
2.3.5 AGREEMENT REGARDING LAKE VICTORIA
The Victoria is the largest lake in Africa comprising of three countries basins- Kenya, The United
Republic of Tanzania and The Republic of Uganda. In 5th august, 1994 they signed the “Agreement on
the Preparation of a Tripartite Environmental Management Programme for Lake Victoria”. Its
objective is to initiate and implement a five-year programme to strengthen regional coordination in
the management of Lake Victoria resources.
In the agreement, although the main focus was given to fisheries management, water hyacinth control,
management of water quality and land use40, nevertheless it incorporated the provision of “Ecosystem
Approach”. It also focused on the provisions of Co-operation, Sustainable Development and
Equitable and Reasonable Utilization41. The programme’s target will be to ensure these provisions.
Philippe Sands, “Principles of International Environmental Law”, page- 491, Para- 4
Article 2 (1) (b) - One regional task force shall address fisheries management, and control of water hyacinth and other
invasive weeds; Article 2 (1) (c)- Another regional task force shall address management of water quality and land use,
including wetlands.
41 Preamble of the Agreement on the Preparation of a Tripartite Environmental Management Programme for Lake Victoria,
1994.
39
40
16
3. ENVIRONMENTAL PROVISIONS AND THEIR SIGNIFICANCE
The rules of international environmental law to protect transboundary watercourses have mainly
evolved from the general and customary law rules and principles to resolve particular problems
regarding their rivers. Others have come from international treaties, juristic opinions and case laws.
Not all provisions directly contribute to the protection of the environment. Some environmental
provisions directly specify to protect the environment, while the objectives of some rules will lead to
the protection and sustainable management of the multilateral watercourses and their ecosystems.
3.1 THE DOCTRINE OF EQUITABLE AND REASONABLE UTILIZATION
The principle of “Equitable and Reasonable Utilisation” is the pre-eminent rule relating to the
utilisation of international watercourses. According to this rule, the determination of a reasonable and
equitable regime for the utilisation of an international watercourse is usually understood in terms of
consideration of a number of familiar relevant factors or criteria42, usually negotiated among riparian
states. From the perspective of history we can see that the concept of "Equitable Utilization" and its
predecessor "Equitable Apportionment"43 grew out of the requirement to share equitably the use of
the waters of an international watercourse. Thus, it is principally a Water Quantity Doctrine. The
U.S. Supreme Court cases on equitable apportionment helped to form the foundation of the doctrine
of “equitable and reasonable utilization” in international law.
3.1.1 ORIGIN
This doctrine originated as a middle position of Reasonableness between the two extremes; the
Absolute Territorial Sovereignty44 assertions of upstream states and Absolute Territorial
42
For example, Article 6(1) of the 1997 UN Convention, 1997, Article V(2) of the Helsinki Rules, 1966, both emphasise the
following factors as relevant in determining whether the regime of allocation of uses and quantum-share of waters of a
shared freshwater resource is reasonable and equitable: the social and economic needs of the watercourse States; the
population dependent on the watercourse; the existing and potential uses of the waters; the efficiency of actual or planned
utilisations; the effects on other watercourse States; the availability of alternative sources; and certain physical
geographical characteristics of the watercourse.
43
Utton, supra note 4.
44
Under this theory, the upstream nation has a legal obligation to leave as much water in an international river as the
downstream nation requires. This right ostensibly supports the downstream State’s remedy to compel the upstream nation
to forego uses of the river that would harm the downstream State. This theories problem was articulated by Justice Oliver
Wendell Holmes in the case of New Jersey v. New York, 1931.
17
Integrity45 claims of downstream states. The middle position of Equitable Apportionment or
Equitable Utilization rejected both the extremes of the Absolute Territorial Sovereignty and
Absolute Territorial Integrity and required equitable sharing of the use of an international or interstate
river.
The doctrine is considered to have been quoted first in the case of New Jersey v. New York. But
according to professor McCaffrey there are two cases which influenced in the establishment of the
principle of equitable allocation of rivers. The first case is Aargau vs. Zurich, (1878), in which The
Swiss Federal Court concluded that
“A rule of international law derived from good neighborliness applies. According to that rule, the
exercise of a right may not affect the right of a neighbor. The two rights are equal, and, in the
event of a conflict, a reasonable arrangement has to be found on the basis of relevant
circumstances”.46
The second case is Wurttemberg and Prussia v. Baden (The Donauversinkung Case) of 1927, in
which the court concluded that“The exercise of sovereign rights by every State is limited by the duty not to injure the interests of
other members of the international community”47.
Subsequent opinions reiterated the principle that states have a right to bring interstate water disputes
to the Supreme Court, where the justices will balance competing interests.
45
Under this principle, an upstream state may, as a matter of international law, do what it wishes with a river in its territory,
without considering the downstream consequences on another nation. It is also known as the Harmon Doctrine. It was first
opined by the 42nd U.S. Attorney General Judson Harmon in 1895 in a response to a request from Mexico for more water
from the Rio Grande.
46 In 1878, a company in the Canton of Zurich, Switzerland, built a dam to produce power for its factory. Downstream mill
owners in the Canton of Aargau complained that the dam restricted the flow of water and harmed their businesses.
47 In 1927, two German states (Wurttemberg and Prussia) sued the state of Baden, seeking relief in German courts from a
phenomenon called the “sinking of the Danube.” The Danube River flows from the Black Forest toward Baden and then
Wurttemberg, but the river lost enough flow in certain times of the year that it disappeared (“sinks”) under the bed and
flowed into Lake Constance and the Rhine River Basin. The court enjoined Baden from building works that increased the
sinking of the river and similarly enjoined Wurttemberg from building works that attempted to prevent the natural flow of
the Danube River into the Rhine River Basin.
18
3.1.2 THE HELSINKI RULES
In 1966, the members of International Law Association (ILA)48 met in Helsinki, Finland and
published the first set of advisory guidelines for the Equitable and Reasonable Usage of international
rivers. These advisory rules are called the “Helsinki Rules”. It was the first attempt to create global
standards for nations to use in apportioning rivers and lakes that cross the border or that form the
border between two or more countries.49
The Helsinki Rules provided for equitable and reasonable shares of water for each of the basin states50
and prohibited any preferential usage51. Under the Helsinki rules no state might be denied the present
reasonable use of waters in order to reserve a future use of those waters for another State 52. The
Helsinki rules also addressed pollution and provided for the prevention of pollution and the measures
to be taken thereof53.
As discussed earlier, the Convention on the Law of the Non-navigational Uses of International
Watercourses, 1997 was drafted based on the Helsinki Rules and the Berlin Rules are the modified
and broader version of both the Helsinki rules and The Convention on the Law of the Nonnavigational Uses of International Watercourses, 1997.54
3.1.3 APPLICATION
The doctrine of equitable and reasonable utilization emphasizes on compromise and fairness. It
requires that a State sharing an international watercourse with other States utilize the watercourse, in
its territory, in a manner that is equitable and reasonable vis-à-vis the other States sharing it. What is
equitable or reasonable is determined by considering all the relevant factors such as prior uses,
48
The ILA is a voluntary association of legal experts whose members are specialized in areas of international public law.
For details, see www.ila-hq.org
50 Under Article- 4 of the Helsinki rules, Each Basin State is entitled, within its territory, to a reasonable and equitable share
in the beneficial uses of the waters of an international drainage basin.,
51 Under Article – 6 of the Helsinki rules, a use or category of uses is not entitled to any inherent preference over any other
use or category of uses.
52 Under article-7 of the Helsinki rules, a basin State may not be denied the present reasonable use of the waters of an
international drainage basin to reserve for a co-basin State a future use of such waters.
53 A state must- (a) Must prevent any new form of water pollution or any increase in the degree of existing water pollution in
an international drainage basin which would cause substantial injury in the territory of a co-basin State;
(b) Should take all reasonable measures to abate existing water pollution in an international drainage basin to such an extent
that no substantial damage is caused in the territory of a co-basin State. Art- 10 (1), Helsinki rules
49
54
For detail, see heading no- 2.1
19
climate, and alternative sources. Thus Equitable and Reasonable Utilization allows the fair sharing of
the river by all co-riparian.
The principle of Equitable and Reasonable Utilization is now considered as the pre-eminent rule of
modern transboundary water sharing. All other procedural rules’ central role is to facilitate this rule
and to the subsidiary rule on the prohibition of significant transboundary harm. As Special Rapporteur
McCaffrey concluded in his Third Report,
“Thus the doctrine of equitable utilization does not exist in isolation. It is part of a normative
structure that includes procedural requirements necessary to its implementation: the substantive
and procedural principles form an integrated whole.”55
3.2 THE TRANSBOUNDARY “NO HARM” PRINCIPLE
The concept of the “No Harm” principle is“No State had the right to use or permit the use of its territory to cause injury by fumes in, or
to, the territory of another or the properties of persons therein, when in case of serious
consequence and the injury is established by clear and convincing evidence.”56
3.2.1 ORIGIN
The “No Harm” principle originated from transboundary pollution concerns. Thus, it is principally a
“Water Quality” doctrine. The “No Harm” principle has its origins in the Madrid Declaration57,
which was adopted in 1911 and established absolute prohibition against activities that may result in
injury to other riparian states. The principle was followed for the first time in the trail smelter case
regarding air pollution between USA and Canada. The farmers in Washington State accused the
smelter owner for damaging their property by Lead and Zinc pollution and asked the Secretary of
55
Supra, n. 70, at 411, citing McCaffrey, Third Report, at 23, Para. 34.
56
The Trail Smelter Tribunal could not find a case of international air pollution as precedent and therefore turned to other
sources, including opinions of the U.S. Supreme Court that addressed air or water pollution. The Tribunal discussed
Missouri v. Illinois, 200 U.S. 296 (1921), New Jersey v. New York, 283 U.S. 473 (1931), and Georgia v. Tennessee
Copper Company, 206 U.S. 230 (1907).
57
The Madrid Declaration, 1911 is the first resolution of the Institute of International Law (IIL)
20
State to seek compensation for past injuries and halt future emissions. The International Joint
Commission (“IJC”), created by the Boundary Waters Treaty of 1909, was the first impartial body to
investigate these claims. Under principles of international law, it found that“A State owes at all times a duty to protect other States against injurious acts by individuals from
within its jurisdiction”.
The Tribunal therefore concluded that Canada was responsible for the conduct of the Trail Smelter
and imposed a $20 million obligation on the smelter owner. Over the years, the principle articulated in
the Trail Smelter case became the foundation of numerous international declarations, including the
multilateral water course agreements58.
3.2.2 APPLICATION
The concept of “No Harm” principle imposes the responsibility on states not to cause environmental
damage in areas outside their national jurisdiction. In other words, it limits the absolute sovereignty of
a state over its natural resources to the extent, where such sovereignty may cause harm to any person,
property, animal, ecology of other states. It obliges the state to protect within the territory the rights of
other states, in particular their right to integrity and inviolability in peace and war.59The “No Harm”
principle does not work in isolation. Rather it links with other substantive and procedural rules of the
cooperative management to work as a whole.
3.3 SUSTAINABLE DEVELOPMENT
The term “sustainable development” refers to the optimal utilization of natural resources in a
reasonable manner, while saving the rests for the interests of future generations. The principle of
“sustainability” refers to “development that meets the needs of the present without compromising the
ability of future generations to meet their own needs”60. It contains two concepts:
1. The essential need of the world’s poor, to which overriding priority should be given.
58
For instance the regional United Nation Economic Commission for Europe Convention on the Protection and use of
Transboundary Watercourses and International Lakes, 1992 and the global Convention on the Law of the Nonnavigational Uses of International Watercourses, 1997
59 For detail, see L. Sohn, “the Stockholm Declaration on the Human Environment, 14 Harvard International Law Journal at
485-93 (1972)
60 Brundtland report, 1987
21
2. The idea of limitations imposed, by the state of technology and social organization, on the
environment’s ability to meet present and future needs.61
3.3.1 ORIGIN
Although the term “sustainable development” is considered to have been coined by the 1987
Brundtland Report, state practice suggest that it was a feature of international legal relations since at
least 1893, when the United States asserted a right to ensure the legitimate and proper use of seals and
to protect them, for the benefit of mankind, from wanton destruction.62
3.3.2 APPLICATION
The principle of “Sustainable Development” limits the exploitation of natural resources by mankind
and suggests the optimal usage of limited resources and leaving the remaining for the future
generations. In case of application, the principle of “sustainable development” comprises four
recurring elements as reflected in the Brundtland report. They areA. The principle of intergenerational equity63- Preserving natural resources for future
generations. If the present generation uses all the natural resources, there will be nothing left
for the future generation to use. According to E. Brown Weiss,
“As members of present generation, we hold the earth in trust of future generation”64
B. The principle of sustainable use65- Exploiting natural resources in a manner which is
“sustainable” or prudent, or rational, or wise, or appropriate. Every natural resource has a
carrying capacity. Exploiting the natural resources without giving them any interval to
regenerate, will bring them to extinction. Sustainable use is a concept which aims at
satisfying human needs according to the carrying capacity of the environment.
61
Report of the world commission on environment and development, our common future, 1987, page- 43
In the Pacific Fur Seals Arbitration, 1893 the tribunal adopted regulations for the conduct of sealing which incorporated
some of the elements of what is known as a “sustainable” approach to the use of natural resources.
63 Philippe Sands, “Principles of International Environmental Law”, page- 253
64 E. Brown Weiss, “Our Rights and Obligation to Future Generations for the Environment”, 84 AJIL 198 at 199 (1990).
65 Philippe Sands, “Principles of International Environmental Law”, page- 257
62
22
C. The principle of intragenerational equity66- It is the equitable use of natural resources
which implies that use by one state, must take account of the needs of other states. It applies
to shared natural resources. According to this principle, states must use their shared natural
resources mutually to satisfy their needs.
D. The principle of integration67- Ensuring that environmental provisions are integrated into
economic and other development plans, programmes and projects, and that development
needs are taken into account in applying environmental objectives. From time of
industrialization, it has been seen that various development programmes have led the natural
resources of environment at the brink of extinction. If development process continues in
isolation, the environment will extinct one day.
In order to achieve sustainable development, environmental protection shall constitute an
integral part of development and cannot be considered in isolation from it.68
These four elements are interrelated and often used in combination. Though, they do not have a wellestablished or agreed legal definition, they work as a whole to uphold the sustainable development
and protect the environment from extinction69. In the Gabcikovo-Nagymaros case the ICJ said“Throughout the ages, mankind has, for economic and other reasons, constantly interfered with
nature …without consideration of the effects upon the environment. Owing to new scientific
insights and to a growing awareness of the risks for mankind in present and future
generations…..new norms and standards have been developed and set forth in a great number of
instruments during the last two decades. Such new norms have to be taken into consideration, and
such new standards given proper weight, not only when states contemplate new activities, but
also when continuing with activities begun in the past. This need to reconcile economic
development with protection of the environment is aptly expressed in the concept of sustainable
development.”70
Over the years, more and more international agreements have included the principle. But they were
soft laws. The first multilateral water course treaty that made the principle of “sustainable use of
natural resources” a legal term, was the 1987 Zambezi Action Plan Agreement.71
66
Ibid, page- 261
Ibid, page- 263
68 Principle 4 of Rio Declaration
69 For details, see Philippe Sands, “Principles of International Environmental Law”, chapter 6
70 1997 ICJ reports 78, Para. 140.
71 The Zambezi Action Plan Adopted the term “sustainable use of natural resources” in its preamble
67
23
3.4 THE PRINCIPLE OF PREVENTIVE ACTION
The principle of “preventive action” imposes the obligation to prevent damage to the environment or
to reduce, limit or control the activities which may cause such damage. Its object is to reduce the
environmental damage. It prohibits activity which causes or may cause damage to the environment in
violation of the established standards of the international law. It has been described as being of
overriding importance in every effective environmental policy, since it allows action to be taken to
protect the environment at an earlier stage. It is no longer primarily a question of repairing damage
after it has occurred.72
3.4.1 ORIGIN
The principle of preventive action is considered to have been used in the international treaties and acts
since 1930s. It was also implicitly followed as a soft law in the Trail Smelter case, the Nuclear Tests
case and the Lac Lanoux Arbitration. This preventive approach has been endorsed directly or
indirectly in many treaties dealing with particular environmental media or activities. It is one of the
main reasons that it has become an international legal principle. The first multilateral water agreement
to incorporate this principle was the Convention Concerning Fishing in the Waters of the Danube
(1958)73.
3.4.2 APPLICATION
Under this principle, a state party is under an obligation to prevent damage within its own
jurisdiction74including by means of appropriate regulatory, administrative and other measures. It
requires action to be taken at an early stage and, if, possible, before damage has actually occurred. In
the Gabcikovo-Nagymaros case the ICJ noted-
72
73
L. Kr¨amer, EEC Treaty and Environmental Protection (1990), 61.
The convention was adopted at Bucharest on 29 January 1958 among The Governments of the Romanian People's
Republic, the People's Republic of Bulgaria, the Federal People's Republic of Yugoslavia and the Union of Soviet Socialist
Republics.
74 See Judge N. Singh, “forward”, in R. D. Munro and J.G. Lammers (eds), Environmental protection and sustainable
development: Legal Principles and Recommendations (1968), xi-xii.
24
“In the field of environmental protection, vigilance and prevention are required on account of the
often irreversible character of damage to the environment and of the limitations inherent in the
very mechanism of reparation of this type of damage”75
The preventive principle may take a number of forms while its application. It can link with domestic
environmental protection legislation which establishes authorisation procedures, adoption of
international and national commitments on environmental standards, access to environmental
information, and the need to carry out environmental impact assessments in relation to the conduct of
certain proposed activities as well as the use of penalties and the application of liability rules in case
any harm caused to any riparian state.
3.5 THE PRECAUTIONARY PRINCIPLE
Although there is no clear and uniform understanding of the meaning of the Precautionary Principle
among states and other members of the international community, its core has been reflected in
principle 15 of the RIO DECLARATION, which provides“Where there are threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to prevent environmental
degradation”
3.5.1 ORIGIN
The precautionary principle evolved out of German socio-legal tradition in the 1930s,
Vorsogeprinzip, translated as the “foresight” or “responsibility” principle. Several non-binding
international declarations have referred to the principle favourably. In the mid-1980s this principle
addressed some highly threatening environmental issues and gained support of many low-lying
AOSIS countries which were the victims of environmental impacts. Ambassador Robert Van Lierop,
permanent representative of Vanuatu to the UN and co-chairmen of working group 1 of the
INC/FCCC said“For us, the precautionary principle is much more than sematic or theoretical exercise. It is an
ecological and moral imperative. We trust the world understands our concerns by now. We do not
75
1997, ICJ reports 7 at 78, Para. 140
25
have the luxury of waiting for conclusive proof, as some have suggested in the past. The proof, we
fear, will kill us”
At first the precautionary approach has been relied upon in relation to measures to protect other
environment, media, especially the marine environment. In 1990 Bergen Ministerial Declaration on
Sustainable Development for the first time treated the precautionary principle as one of general
application and linked with Sustainable Development76.
3.5.2 APPLICATION
The Precautionary principle identifies general standards of due diligence for the purposes of the duty
to prevent transboundary harm77. Any Obligation relating to the application of clean production
methods or the setting of precautionary environmental standards, techniques or practices are almost
always associated with the application of the precautionary principle in international instruments. In
relation to the impact of the precautionary principle on other norms of international environmental
law, Birnie and Boyle note that “the ILC special rapporteur is right to suggest that the precautionary
principle is already included in the principles of prevention and prior authorization, and in
environmental impact assessment, and could not be divorced therefrom”.78
When the UNEP governing council recognized the importance of the principle and recommended all
governments to adopt the precautionary principle as the basis of their policy with regard to the
prevention and elimination of marine pollution79. From then the principle has been progressively
consolidated in international environmental law, and so, it has since become a full-fledged and
general principle of international law.
3.6 THE PRINCIPLE OF CO-OPERATION
The word “CO-OPERATION” means to act or work or to act together to meet the common economic,
social and cultural needs and aspirations. The principle of co-operation is considered by reference to
the application of the maxim “sic utere tuo ut alienum non laedas”, which means
76
The declaration provided that, In order to achieve sustainable development, policies must be based on the precautionary
principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation.
77 For example, it is clear that duty of prevention would normally extend to a significant risk of transboundary environmental
interference causing significant harm, thereby requiring precautionary risk assessment
78 Supra, n. 31, at 120, citing Report of the International Law Commission (2000) GAOR A/55/10, Para. 716.
79 Governing Council Decision 15/27, 1989.
26
“One should use his own property in such a manner as not to injure that of another”
The principle of co-operation is a universal concept. It is one of the fundamental pillars of social
progress and sustainable development vis-à-vis protecting the environment. The UN charter has
translated the principle of “good neighbourliness” in to the development and rules for promoting
international environmental co-operation80. It has also introduced the provision of “Environmental
Impact Assessment”.
3.6.1 ORIGIN
The application of the principle of “co-operation” in relation to transboundary watercourse can be
seen in the Lac Lanoux arbitration. In 1957, the tribunal affirmed principles concerning limitations on
the right of states in their use of shared rivers and informing the meaning of co-operation in
international law81.
Now, the obligation to co-operate is affirmed in virtually all international environmental agreements
of bilateral, regional and global instruments. It has been translated into more specific commitments
through techniques designed to ensure information sharing and participation in decision-making.
3.6.2 APPLICATION
The principle of “Co-operation” requires the riparian states to mutually protect, preserve and develop
the shared watercourse and exchange information regarding any activity which the other riparian
states should get. The obligations of the principle of cooperation have been clearly reflected in the
80
Under article 74 of the United Nations charter, Members of the United Nations also agree that their policy in respect of the
territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general
principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in
social, economic, and commercial matters.
81 In this case the question was whether riparian states have any obligation to notify and consult with others who may be
potentially affected prior to engaging any activities which may harm a shared river resource. In 1957, the French
government proposed the Spanish government to authorize a barrage to channel 25% of the flow of the Carol River
through a hydro-electric power plant, before returning the same amount of water at a point prior to its use by farmers in
Spain. The tribunal held that, Spanish claim to an infringement of rights might have been stronger if the proposed works
polluted the waters of the river Carol or change the chemical composition, temperature or other characteristics of the water
in such a way as to injure its interests.
27
MOX case where Ireland claimed that the UK had failed to co-operate as required by article 12382 and
19783 of UNCLOS and the International Tribunal for the Law of the Sea (ITLOS) affirmed that
“The duty to co-operate is a fundamental principle in the prevention of pollution of the marine
environment under part XII of the convention and general international law and that right arise
therefrom which the tribunal may consider appropriate to preserve under article 290 of the
convention”
3.7 ENVIRONMENTAL IMPACT ASSESSMENT
The Environmental Impact Assessment (EIA) is the most vital instrument of Co-operation. It has
already proven to be a very important instrument for implementing and strengthening sustainable
development. The EIA is a system for identifying and introducing measures to prevent environmental
adverse impacts caused by development project. The International Association for Impact Assessment
(IAIA) defines an environmental impact assessment as
"the process of identifying, predicting, evaluating and mitigating the biophysical, social, and
other relevant effects of development proposals prior to major decisions being taken and
commitments made.”84
3.7.1 ORIGIN
The origin of Environmental Impact Assessment system started with the enactment of the National
Environmental Policy Act (NEPA) in 1969 by the U.S. since then it has evolved as it has been used
increasingly in many countries around the world. EIA has become the major tool for an integrated
approach in the UNECE region for the protection of the environment since it requires a
comprehensive assessment of the impacts of an activity on the environment, contrary to the traditional
82
Article 123 of UNCLOS states, States bordering an enclosed or semi-enclosed sea should cooperate with each other in the
exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour,
directly or through an appropriate regional organization:(a) to coordinate the management, conservation, exploration and
exploitation of the living resources of the sea;(b) to coordinate the implementation of their rights and duties with respect to
the protection and preservation of the marine environment;(c) to coordinate their scientific research policies and undertake
where appropriate joint programmes of scientific research in the area;(d) to invite, as appropriate, other interested States or
international organizations to cooperate with them in furtherance of the provisions of this article.
83 Article 197 of UNCLOS states, States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine
environment, taking into account characteristic regional features.
84 Principles of Environmental Impact Assessment Best Practice, International Association for Impact Assessment, 1999.
28
sectorial approach. In addition, it looks into alternatives to the proposed activity and brings facts and
information on environmental impacts to the attention of the decision-makers and the public. In 1991
The Espoo Convention85 was adopted at Espoo (Finland) for the soul purpose of the EIA provision.
3.7.2 APPLICATION
The obligation to conduct an EIA is commonly associated with the well-established duty to prevent
transboundary harm86 and its allied duties to notify and consult with potentially affected States in
relation to any planned projects or activities that might give rise to such harm87. The requirement for
transboundary EIA has also been closely linked with practical implementation of the more general
concept of sustainable development88 and with application of the precautionary principle89. In fact,
this provision has connected both the concepts of principle of “Preventive action” and the
“Precautionary” principle with the principle of “Co-operation”. For example, identifying and
introducing measures by EIA to prevent environmental adverse impacts is the concept of Preventive
action, while utilizing the anticipatory EIA procedures is one of the key means of giving practical
effect to the Precautionary principle90 and thereby notifying the transboundary environmental
impact assessment of the planned projects to another state, is the concept of co-operation. Birnie and
Boyle have noted that“Without the benefit of an EIA the duty to notify and consult other states in cases of
transboundary risk will in many cases be meaningless”91
At present, all infrastructure projects funded by multilateral development banks or otherwise assisted
by international development agencies are now required to undergo an EIA procedure in order to
85
Convention on Environmental Impact Assessment in a Transboundary Context, 1991
86
See, for example, P. M. Dupuy, supra, n. 3, at 66-68.
87
See, for example, Birnie and Boyle, supra, n. 31, at 131.
88
See, for example, Sands, supra, n. 154, and Botchway, supra, n. 148, and X. Fuentes, ‘Sustainable Development and the
Equitable Utilization of International Watercourses’, (1999), 70 British Yearbook of International Law 119, at 125-129.
89 See, for example, O. McIntyre and T. Mosedale, ‘The Precautionary Principle as a Norm of Customary International
Law’, (1997) 9 Journal of Environmental Law 221, and A. Kiss, ‘The Rights and Interests of Future Generations’, in D.
Freestone and E. Hey (eds.), The Precautionary Principle and International Law (The Hague, 1996) 26.
90 In his separate opinion appended to the Gabcikovo-Nagymaros case, supra, n. 32, Judge Weeramantry expressly describes
environmental impact assessment as ‘a specific application of the larger general principle of caution’, at 21. See also,
Request for an Examination of the Situation, supra, n. 32, Dissenting Opinion, Palmer, at 412, Dissenting Opinion,
Weeramantry, at 345.
91 Supra, n. 31, at 131
29
assess their potential domestic, transboundary and global environmental effects92. Many leading
commentators conclude that, in practice, many least developed countries conduct EIA for projects
only when it is required as a condition of international aid93.
So, we can see that, apart from providing a means for the discharge of the duty to prevent
transboundary harm and the duty to co-operate and for the practical implementation of the
precautionary principle, EIA is very widely used by Multilateral Development Banks and other
development agencies to ensure that considerations of environmental protection are fully taken into
account in the planning of projects enjoying their support.
3.8 THE POLLUTER-PAYS PRINCIPLE
The “Polluter Pays” Principle (PPP) is an environmental policy principle which requires that the
costs of pollution will be borne by those who cause it. The Polluter Pays Principle aims at determining
how the costs of pollution prevention and control must be allocated and the polluter must pay that
cost.
3.8.1 ORIGIN
The Polluter-Pays principle was first mentioned in 1972 Recommendation by the Organisation for
Economic Co-operation and Development (OECD) Council on Guiding Principles concerning
International Economic Aspects of Environmental Policies. Over the years the PPP evolved into what
is called extended or strong PPP. In 1989 OECD included in the PPP costs related to accidental
pollution; the Recommendation of the Council concerning the Application of the Polluter-Pays
Principle to Accidental Pollution states that"In matters of accidental pollution risks, the Polluter-Pays Principle implies that the operator of
a hazardous installation should bear the cost of reasonable measures to prevent and control
accidental pollution from that installation.”
92
See, for example, G. Handl, Multilateral Development Banking: Environmental Principles and Concepts Reflecting
General International Law and Public Policy, (Kluwer Law International, London, 2001)
93
Knox, supra, n. 31, at 297. See also, C. Wood, Environmental Impact Assessment: A Comparative Review (1995), at 303
and C. George, ‘Comparative Review of Environmental Assessment Procedures and Practice’, in N. Lee and C. George
(eds.), Environmental Assessment in Developing and Transitional Countries (2000) 35, at 49.
30
3.8.2 APPLICATION
Its immediate goal is to internalize the environmental externalities of economic activities, so that the
prices of goods and services fully reflect the costs of production. In Gut Dam Arbitration, 1965 the
US nationals claimed against Canada for the damage caused to their property by the construction and
operation of the Gut Dam. The tribunal found that Canada was potentially liable to any citizen of the
US whose property suffered damage or who suffered detriment caused by the construction and
operation on Gut Dam and Canada paid US$350,000 as the satisfaction of all claims94.
The above decision infers that States are subject to limitations on their use of international waters, and
they may be subject to an international claim if such use leads to damage foreign private property.
There are four characteristics95 of the principle of “Polluter-Pays”. They are:
A. economically, it promotes efficiency;
B. legally, it promotes justice;
C. it promotes harmonization of international environmental policies;
D. it defines how to allocate costs within a State.
The normative scope of the PPP has evolved over time to include also accidental pollution prevention,
control and clean-up costs, what is referred to as extended Polluter Pays Principle. Today the
Principle is a generally recognized principle of International Environmental Law, and it is a
fundamental principle of environmental policy of both the OECD and the European Community.
94
The Gut Dam was built by Canada to stop the flow of the water through the channel between the two islands. Between
1904 and 1951, the water level of the St Lawrence River and Lake Ontario increased, principally as a result of the
diversion by Canada of water in to the great lakes to increase hydro-electric power generation, and also because of a
reduction in the water at which the US withdrew water at Chicago. In 1951-1952, the water of St Lawrence River reached
unprecedented levels which, after severe storms, caused extensive flooding and erosion damage to the north and South
shores of all the great lakes, including Lake Ontario. The damage which was caused to US property was argued by the
owners to be the result of the construction of the Gut Dam. In, 1953, Canada removed the Gut Dam, and following the
failure of efforts to reach a friendly settlement the Lake Ontario Claim Tribunal, 1965 was established. The tribunal found
that Canada was potentially liable for the damage and settled the claims for 350000 dollars.
95
In 1996 Bugge identified these four versions of the principle of “Polluter-Pays”.
31
3.9 THE ECOSYSTEM APPROACH (PROTECTION & PRESERVATION OF
ECOSYSTEMS)
The ecosystem approach is a strategy for the integrated management of land, water and living
resources that promotes conservation and sustainable use in an equitable way. It is based on the
application of appropriate scientific methodologies focused on levels of biological organization which
encompass the essential processes, functions and interactions among organisms and their
environment96. Protection and preservation of Ecosystem requires consideration on the whole system
rather than individual components of the environment. Interconnectedness not only implies that the
management approaches are broad-based in a spatial sense, but also requires …the need to maintain
“ecosystem integrity”- the system’s capacity to self-organization.97
3.9.1 ORIGIN
The origin of the “Ecosystem Approach” have three roots: the development in frontrunner countries,
the support of the paradigm shift by international NGOs and the early entry of the concept into CBD’s
decision-making process. The concept of “ecosystem” was developed in US scientific literature during
1930 to1940. In 1995 the Inter Agency Ecosystem Management Task Force outlined a common
framework for ecosystem management and identified barriers to implementation which received
considerable national and international attention. In November 1995, the Conference of the Parties of
the Convention on Biological Diversity (CBD) adopted the ecosystem approach as the primary
framework for action under the Convention, and subsequently has referred to the ecosystem approach
in the elaboration and implementation of the various thematic and cross-cutting issues work
programmes under the Convention. The international NGOs have helped in the better understanding
of the Ecosystem Approach. Their evolutionary thinking has led to more holistic management
approaches in the provision of the “Ecosystem Approach”, where the World Conservation Union
(IUCN) and the WWF were important actors.
96
See http://www.cbd.int/ecosystem/.
97
J. burnnee and S.J Troop, “Environmental Security and Fresh Water Resources: A case for International Ecosystem Law”,
5 yearbook of International Environmental Law (1994), at 41.
32
3.9.2 APPLICATION
The existing customary and conventional rules relating to the utilization of shared natural resources
were based on the notion of state sovereignty and therefore focused only on the protection of
territorial interests. Environmental interests were only coincided with territorial interests. This was the
true picture of shared water resources in the past decades. In this regard, J. burnnee and S.J Troop said
“Where the focus of equitable use principle is on the balancing of different use interests in the
resources and not on the protection of ecological interests, and where rights and obligations
under the equitable use; rule also remained anchored in the territorial sovereignty of riparian
states over the shared resources.”98
At present, the protection and sustainable management of water-related ecosystems is the key to
meeting the millennium development goals and therefore reducing poverty. Ecological approach can
contribute to securing safe drinking water. Ecosystem protection and restoration can contribute to
mitigating the effects of climate change, such as the increased magnitude and frequency of floods,
erosion and evaporation.
Protection and preservation of “Ecosystem” is often more cost-effective in maintaining, restoring or
creating water-related ecosystems than in trying to provide the same services through expensive
engineering structures such as dams, embankments or water-treatment facilities. For instance, in the
whole of Switzerland 38% of water supplied is untreated. Since treatment costs can average around
0.20 franc99 per m3, the use of groundwater mostly from forested watersheds, which needs no
treatment, saves the Swiss consumers 80 million franc a year.100
3.10 INTRODUCTION OF ALIEN OR NEW SPECIES
The “Introduction of Alien or New Species” is a modern environmental provision. It deals with the
introduction of alien (which is non-native) or new species with local species.
98
Ibid, at 55
Currency of Switzerland
100 Quoted from the booklet of Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, Ministerial Declaration of the 3rd World Water Forum, UN
99
33
Invasive alien species101 are emerging as one of the major threats to sustainable development, on a par
with global warming and the destruction of life-support systems. These aliens come in the form of
plants, animals and microbes that have been introduced into an area from other parts of the world, and
have been able to displace indigenous species.
Although not all alien species will become invasive or threaten the environment, this is an area in
which a clear policy approach was necessary because of its potentially wide-ranging impacts when
they do become invasive and because of the difficulties, including financial costs, in reversing its
impacts. This provision introduced the policy approach to deal with such invasive species.
3.10.1 ORIGIN
The provision of “Introduction of Alien or New Species” is a new concept. This provision was first
introduced in the IUCN position statement on translocation of living organisms, approved in 1987. It
laid the steps to follow when considering future releases102. In the initial draft of Convention on
Biological Diversity (CBD), Introduction of alien or new species included the ideas of 1987 paper and
even suggested creating a new international expert body on the alien species within the CBD. Its
mechanisms were applied in the Biosafety Protocol.103
3.10.2 APPLICATION
The provision of “introduction of alien or new species” comprehensively relies on a preventive
framework, considering the unpredictability of the impacts. This provision requires the states to assess
the possible effect of any planned introduction of alien or new species to any part of the environment
and not to undertake or permit any such introduction where they may cause significant or extensive
harmful changes to the ecosystem. It also requires the states to consult any significant or harmful
change due to any planned activity to the competent international organizations and other states that
may be affected by such changes.
101
102
Invasive alien species (IAS) are species whose introduction and/or spread outside their natural past or present distribution
threaten biological diversity, http://www.cbd.int/invasive/WhatareIAS.shtml.
In summary it provides that, release of an alien species should be considered only if clear and well defined benefits to
human or natural communities can be foreseen; release should be considered only if no indigenous species is suitable; no
alien species should be released deliberately in any natural area; release into semi natural areas should not occur without
exceptional reasons; planned release including those for biological control, entail three critical phases: rigorous
assessment for desirability; controlled experimental release; and extensive release accompanied by careful monitoring and
pre-arrangement for control or eradication measures, if necessary.
103 Cartagena protocol on Biosafety to the convention on Biological Diversity (CPB), 39 ILM 1027, (2000)
34
4.0. FINDINGS & RECOMMENDATIONS:
4.1. FINDINGS
The environmental provisions in the multilateral watercourse agreements are becoming more clearly
defined both through their ongoing elaboration into a sophisticated corpus of legal requirements and
through growing understanding of their mutual relevance. They have already become well-established
principles of international environmental law due to their frequent implementation in various
multilateral agreements. However this study has shown some of the characteristics of the
environmental provisions and the problems and anomalies of these provisions in the implementation
and application in the multilateral watercourse agreements. They are as follows:
4.1.1
PRESENT
STATUS
OF
THE
ENVIRONMENTAL
PROVISIONS
OF
THE
MULILATERAL WATERCOURSE AGREEMENTS: The environmental provisions in the
multilateral water course agreements are still legally non-binding instruments as there is no universal
instrument to enforce them104. Although, these provisions are being implemented as binding in some
of multilateral and regional instruments, they do not have the universal applicability.
When these provisions are incorporated in regional or multilateral treaties, they have the binding force
on the state parties by the nature of treaty105. They can establish their respective rights and obligations,
together with the “rules of the game” that govern their relations. But where the riparian states do not
have any watercourse treaty, these provisions cannot require the states to maintain the equitable and
reasonable utilization of the multilateral water courses. Ratification of a global instrument is now a
demanding process for the universal application of these provisions.
4.1.2 PROBLEMS IN THE IMPLEMENTATION OF ENVIRONMENTAL PROVISIONS: It is
often seen that the environmental provisions in multilateral watercourse agreements are not fully
implemented. Lack of awareness or short-sighted economic and technical choices of development are
seemed to be the main causes behind the failure to such implementation.
104
105
The only convention of global framework, the United Nations Convention on the Law of the Non-Navigational uses of
International Watercourses, still need 19 more votes to come into force.
As a general rule, a treaty is always binding on the state parties, who have consented to be bound by it, and establishes its
respective rights and obligations, together with the “rules of the game” that govern their relations. It is treaty’s legal
nature.
35
In some cases authorities responsible for management of transboundary waters are not strong enough
and or do not have the mandate to implement the environmental provisions. Insufficient or not reliable
data impedes the definition of strategies for the improvement of water management. Shortage of
information and lack of harmonization of information between countries and the public are making
the present situation more difficult.
Again self-centred attitudes and short-sighted thoughts of the states are impeding the proper
implementation of the environmental provisions in the multilateral watercourse agreements. For
instance, the principle of “Common but Differentiated Responsibility”106 has not been implemented
in any of the present multilateral watercourse agreements as this principle put extra responsibility on a
state than the other riparian states. The states must forego such practices if they want a better future in
the management of fresh waters.
In case of developing and new born countries the lack of human resources and specific expertise of
staff are the main causes of such failure. They struggle to match their available administrative
resources with the tasks of a sovereign country. As a result, the environmental issues are often
compromised with other administrative functions.
4.1.3 INADEQUACY OF THE ENVIRONMENTAL PROVISIONS IN PREVENTING OVER
USE OF FRESH WATER AND ITS POLLUTION AS A WHOLE: In past, main emphasis was
on the developing co-operative international arrangements to govern the use of international
watercourses. Now the attention given to conservation has increased markedly due to the scarceness
of fresh water caused by wide spread water pollution and huge population. So, the environmental
provisions alone cannot prevent the overuse of fresh water and its pollution. The standardization of
international water quality is needed at the regional or global level to set the targets and timetables for
the elimination of harmful substances, or the conduct of certain activities to conserve the
transboundary fresh water resources.
4.1.4 LACK OF COOPERATIVE MANAGEMENT: One of the major problems of present fresh
water issues is lack of cooperative management. At present, cooperative management frameworks
106
The principle of common but differentiated responsibility simply means that the states have common obligations, but the
amount of the obligations is different. The principle of common but differentiated takes into account the needs and
capabilities of different countries and their historic contribution to particular problems; and the allocation of shared
natural resources, shared fisheries stocks or shared freshwater resources- Philippe sands in “the Principles of International
Environmental Law”, page-394
36
exist for only about 40% of the world’s international watercourses. Where agreements exist, 80%
involve only two countries, even though other states may also be part of the watercourse in
question107. Among the 166 fresh water treaties108 (excluding the treaties dealing with boundaries,
navigation or fishing rights) of the world, 145 treaties (86%) are bilateral and 21 treaties (14%) are
multilateral; two of the multilateral treaties are unsigned agreements or drafts109. It is unclear whether
so many of the treaties are bilateral because only two states share a majority of international
watersheds or because, according to negotiation theory, the difficulty of negotiations increases as the
number of parties increases. In basins with more than two riparian, this preference for bilateral
agreements can preclude the comprehensive regional management long advocated by water resource
managers.
Lack of legal and regulatory framework for bilateral or multilateral cooperation is frequently a
bottleneck. It is a demanding process to start and to conclude a negotiation process, in particular when
there are significant conflicts that have to be solved underway. Again, Competition among water users
on the share of water both within countries, and internationally between upstream and downstream
countries impedes cooperative water management. For instance, In Central Asia, upstream countries
may prioritise the use of water for hydroelectricity generation in winter whilst downstream countries
mainly use water for irrigation in summer.
Again the statistics shows that the developed countries are reluctant to make multilateral agreements
among them. At present, there is only one multilateral treaty exists between industrialized nations for
access to a water source, namely the treaty regarding water withdrawals from Lake Constance signed
by Germany, Austria, and Switzerland in 1966110. In some cases it has been seen that the states are
parties to several watercourse agreements, each with their own unique policies and obligations, which
makes effective cooperation more difficult. In other cases, parties to partial agreements make
decisions among themselves without due regard for the interests and needs of other co-riparian states
that are not parties to those agreements.
107
Survey conducted by Flavia Loures, Dr. Alistair Rieu-Clarke & Marie-Laure Vercambre, WWF articles,
http://www.wwf.org.uk/wwf_articles.cfm?unewsid=2272
108
The treaties have been recorded from the year 1870
109
Survey conducted by the institute of water and watersheds, Oregon State University. For details see,
http://www.transboundarywaters.orst.edu/publications/patterns/
110
For details see, http://www.transboundarywaters.orst.edu/publications/patterns/
37
4.2 RECOMMENDATIONS:
After going through the details of the study and analyzing all the findings, some issues need to be paid
attention. Such as:
 Although the environmental provisions in various multilateral watercourse agreements have
the potentials to address the transboundary and other water related issues, often they are not
implemented or partially implemented due to the lack of their enforcement mechanism.
There is no ratified global instrument to enforce these provisions. The Convention on the
Law of the Non-navigational Uses of International Watercourses, 1997111 should be ratified
as soon as possible in order to enforce these provisions in the transboundary watercourse
issues.

Lack of cooperation is a vital cause behind the failure to implement these provisions. At
present, there exist only 24 multilateral fresh water treaties112. Unilateral development of
each state in the absence of a common agreement, leads to inefficient development and
even to potential conflicts. The riparian states with no multilateral treaty must be
encouraged to cooperate with other riparian states in making a uniform multilateral treaty,
so as to, implement those provisions without any conflict.

It is often seen that the regional organizations regarding the transboundary watercourses do
not have proper authority, man power and administrative resources to implement all the
environmental provisions. They should be equipped with proper authority, adequate staffs
and sufficient resources to implement and enforce the environmental provisions in the
multilateral watercourse agreements.

A fundamental feature of transboundary cooperation is the design and establishment of
joint monitoring and assessment programmes. This process requires countries to define
common information needs on the basis of their water management policies, and thereafter
to design and operate monitoring programmes, agree on assessment strategies and review
111
The Convention on the Law of the Non-navigational Uses of International Watercourses, 1997 is a framework convention
of universal application.
112
Survey conducted by the institute of water and watersheds, Oregon State University. For details see,
http://www.transboundarywaters.orst.edu/publications/patterns/
38
their water management strategies on the basis of the assessment results. Effective
monitoring programmes should include exchange of harmonized data and information.

Decision-making should involve public participation. Information regarding the
implementation of rules or provisions in environmental matters, including the protection
and sustainable use of water-related ecosystems should be directed at all levels of society
and not merely at those who are already aware of the situation, but also at the younger
generation, who are the decision makers of the future.
39
5.0 CONCLUSION
Water is one of the most valuable resources of mankind and the development of the riparian states is
inevitably linked to the hydrological cycle of their common water course. Cooperation in the use of
transboundary fresh water course is the only way to avoid conflicts. This study has shown that
cooperation among riparian states can be best regulated by the environmental provisions. Indeed, it
can be argued that the normative sophistication and comprehensive coverage of environmental
provisions have given added ‘voice’ to environmental concerns within the determination of a
reasonable and equitable regime for the utilisation of an international watercourse. These provisions
hold the key to equitable and reasonable utilization of multilateral water courses.
At present, the scale of the freshwater challenge is enormous. Water pollution and overuse have
worsened in many places, and the world’s poorest people are already facing shrinking supplies.
Climate change, frequent, widespread droughts and floods have added a new dimension to the fresh
water issues i.e. conservation of the multilateral water course. Although experts have been warning
that the protection of freshwater resources will not be achieved without effective enforcement
mechanisms available to public and private entities which allow cases of non-compliance to be
challenged, the environmental provisions still lack the binding force, as there is no universal
instrument to enforce them. As a result, these provisions are being incorporated and implemented
arbitrarily, sometime, without the consent of other riparian states, leading to potential conflicts. It is
high time that the environmental provisions in the multilateral watercourse agreements should be
made binding universally.
It is agreed that the environmental provisions cannot resolve all issues regarding the multilateral
watercourses without the help of conservation procedure and standardization of the international
water quality113. Nevertheless, the most important weapon in preventing overuse of fresh water and its
pollution, the Cooperation, can be best regulated by the environmental provisions.
“Rules establishing general standards and obligations, including those established by customary law, will be wholly
inadequate. There is a need to develop specific international water quality standards, at the regional or global level….. On
the basis of these standards, targets and timetables can be adopted for the elimination of harmful substances, or the conduct
of certain activities, for particular rivers, or lakes or groundwater resources, or on the basis of a regional approach.”Philippe Sands, “Principles of International Environmental Law”, Second Edition, page- 629, Para-4
113
40
BIBLIOGRAPHY
BOOKS
1. Philippe sands, “Principles of International Environmental Law”, first and second edition.
2. Philippe Sands, “GUIDE FOR NEGOTIATORS OF MULTILATERAL ENVIRONMENTAL
AGREEMENTS”, Foundation for International Environmental Law and Development (FIELD).
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International Ecosystem Law”, 5 yearbook of International Environmental Law, 1994.
AGREEMENTS, RULES AND LEGAL INSTRUMENTS
1. The Convention on the Law of the Non-navigational Uses of International Watercourses, 1997.
2. The Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, 1992.
3. Helsinki rules, 1992.
4. Berlin rules, 2004.
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7. Revised Protocol on Shared Watercourse Systems in the Southern African Development
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29, 1994.
11. The Madrid Declaration, 1911.
41
12. United Nations Convention on the Law of the Sea, 1956.
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14. Cartagena protocol on Biosafety to the convention on Biological Diversity (CPB), 39 ILM 1027,
2000.
15. The Stockholm Declaration on the Human Environment, 14 Harvard International Law Journal at
485-93, 1972.
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of
water
and
watersheds,
Oregon
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UN. Doc.
4. Brundtland report, 1987.
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ARTICLES
1. Albert E. Utton, “Which Rule Should Prevail in International Water Disputes: That of
Reasonableness or that of No Harm”.
2. E. Brown Weiss, “Our Rights and Obligation to Future Generations for the Environment”, 84 AJIL
198 at 199, 1990.
3. L. Kr¨amer, “EEC Treaty and Environmental Protection”, 1990, 61.
42
4. Sands, Botchway and X. Fuentes, “Sustainable Development and the Equitable Utilization of
International Watercourses”.
5. Rieu-Clarke & Marie-Laure Vercambre, , Flavia Loures, Dr. Alistair 1 July, 2008, “Everything you
need
to
know
about
the
UN
Watercourses
Convention”,
http://www.wwf.org.uk/wwf_articles.cfm?unewsid=2272.
6. “Improving the management of land and water resources for food, livelihoods and the
environment”,
http://www.iwmi.cgiar.org/Research_Impacts/Research/themes/WaterManagementandEnvironment/
WAEF/lessons.aspx.
7. Munyaradzi Chenje, Jennifer Mohamed-Katerere, “Invasive Alien Species”.
WEBSITES
1. http://www.grid.unep.ch/proser/maps/latinamerica/laplata/php.
2. www.ila-hq.org/en/committees/index.cfm/cid32.
3. http://www.grid.unep.ch/proser/maps/latinamerica/laplata/php.
4. http://www.icpdr.org/icpdr-pages/drpc.htm.
5. http://www.cbd.int/ecosystem/.