Ed Barton, LLM, CPA, CFA

Transboundary Freshwater Management

Because freshwater is so critical to human life, transboundary freshwater management is a major issue in environmental stewardship. Environmental impact studies and the principle of the no-harm rule enshrined in the Rio and Stockholm declarations are expected when dealing with freshwater natural resources.

UNEP Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States

The importance of the issues, coupled with the potential for international conflict, led the UN to develop draft principles for exploiting and managing shared resources. It is expected that states will:

  • Cooperate to mitigate and eliminate environmental impacts
  • Require that environmental impacts be studied before projects are undertaken
  • Countries are encouraged to develop appropriate bilateral or multilateral treaties to secure proper conduct
  • Requires good faith in the sharing of information, including emergencies
  • Take into account the needs and development interests of developing countries

Principles of Allocation of Water Resources

The primary issues arise from the competing interest of upstream and downstream users of the water flow. Under PSNR and territorial sovereignty principles, states enjoy absolute control over resources within their territory, regardless of the effects it may have downstream. This is known as the Harmon doctrine – and is not well supported anymore in international law.

The principle of territorial integrity is the right of lower riparian states to the full flow of water of natural quality and quantity. Thus, any interference with the natural flow would require the consent of the downstream states. This principle is without support in practice, law, or writing.

The most widely endorsed theory is equitable utilization. The UN incorporated this theory into the UN Watercourses Convention in 1997. It rests on the principle of shared sovereignty and requires a balancing of the interests to accommodate the needs and uses of each state.

Integrated into this approach is the idea that watercourse basins are best managed as an integrated whole and goes beyond the mere allocation of equitable rights to integrated development with international regulation of the watercourse environment.

Case and Customary Law

Freshwater resources are subject to the Stockholm Declaration, as well as the Rio Declaration. The River Oder case and the Gabcikovo-Nagymaros case reinforced the international legal principles that the rights of riparian states concerning shared watercourses are not unlimited, and one riverbank state cannot deprive another state of a right to an equal and reasonable share of riparian resources.

The 1966 Helsinki Rules, reinforced by the 2004 Berlin Rules, reinforced the principles of equitable utilization and non-significant harm to other watercourse states.

River Oder Case (1929) – This case favored the community interest of navigation among all riparian states based on equality of rights over the navigable course of the river. The general principles of international river law that the right of access to the sea played a considerable part in the development, leading to a common legal right.

Lake Lanoux (1957) – The shared lake between Spain and France would have been impacted by building a hydroelectric dam. The arbitration tribunal found that France could exercise its rights to build the dam but had to have Spain’s rights and interests considered even though the lake was completely in French territory.

Gabcikovo – Nagymaros (1997) – Hungary abandoned its part of a treaty between Hungary and the Czech and Slovak Republic in 1992 in response to domestic pressure. The ICJ found that Hungary could not abandon, and Czechoslovakia was entitled to proceed in 1991 but not in 1992. This was an important case because it confirmed the principle of equal participation and environmental consideration as part of the obligations of riverbank states. It also recognized that environmental impacts need to be continuously assessed and that sustainable development was a valid consideration.

Pulp Mills (2010) – Argentina claimed that Uruguay failed to notify and consult with Argentina before building pulp mills under a 1975 treaty. The court reinforced the principle that a balance must be achieved between the rights of the riparian states to economically benefit from the river and the need to protect it from environmental damage. The court found that Uruguay breached the agreement by failing to conduct an environmental impact assessment and consult with Argentina on the results. The court also noted that the EIA bust be conducted before the project and environmental impacts assessed continuously thereafter.

1997 United Nations Watercourses Convention

This went into effect in 2014. The convention was an attempted compromise between upstream and downstream states. In general, upstream states favor equitable utilization while downstream states favor the principle of non-significant harm. The convention attempted to balance these two positions while also requiring an obligation to cooperate.

The primary principle noted in Article 5 of the Convention calls for using a watercourse equitably and reasonably. Factors to be considered include:

  • natural characteristics
  • social and economic needs
  • population dependency
  • effect of use or uses by one state on another
  • existing and potential uses
  • conservation and preservation
  • availability of alternatives

Article 12 requires that a watercourse state provide timely notification of any planned measures that may adversely affect another watercourse state.

1992 Helsinki Watercourse Convention

The United Nations Economic Commission adopted the 1992 Helsinki Convention for Europe (UNECE). It is considered a critical convention because it contains rules applicable to parties and non-parties and relies on the general principles of international environmental law. The parties agreed in Article 2 to use transboundary watercourses in an ecologically sound way and ensure conservation and restoration of ecosystems. The Helsinki Convention is the primary bilateral treaty governing international watercourses in Europe.

1999 Protocol on Water and Health

This protocol – added to the Helsinki Convention in 1999 and made effective in 2005, was adopted to secure an adequate supply of safe drinking water and adequate sanitation systems in Europe. The protocol is a holistic approach to the management of natural ecosystems and water management.

2003 Protocol on Civil Liability and Compensation for Damage Caused by Trans-boundary Effects of Industrial Accidents on Trans-boundary Waters

Signed in 2003 but not fully in force. It defines a broad swath of damages, including:

  • Loss of life or personal injury
  • Loss or damage to property
  • Loss of income
  • Cost of restoration of transboundary waters
  • Cost of response measures

It defined industrial accidents and any event resulting from uncontrolled development in the course of a hazardous activity and clarifies the fault liability of an operator.

Civil Liability for Misuse of Watercourses

Several countries have entered into treaties with civil regimes to impose liability on civil partners responsible for causing damage. They include:

  • The peaceful use of nuclear energy
  • Oil pollution from ships
  • Trans-boundary movement of hazardous waste
  • Activities inherently dangerous for the environment

The regimes generally define the nature of the damage and the liability – setting minimum and maximum amounts of compensation and provide financial mechanisms such as insurance to ensure that civil parties can meet their obligations. They also ensure that there is effective access to the judicial process to address liability and compensation.

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