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Ocean and Freshwater Resources

Abstract and Keywords

In December 1970, the United Nations General Assembly (UNGA) adopted two resolutions of major significance for ocean and freshwater resources. One of them, Resolution 2570 (C) (XXV), related to law of the sea, the seabed, and the ocean floor; and the other, Resolution 2669 (XXV), related to international watercourses. The resolutions set in motion two parallel, lengthy, and complex processes that resulted in the adoption, at different later stages, of two conventions, namely the Convention on the Law of the Sea in 1982 and the Convention on the Law of the Non-Navigational Uses of International Watercourses in 1997. This article discusses and analyses the international environmental law aspects related to ocean resources as well as those related to freshwater resources. It considers marine resources and the conservation of the marine environment, marine pollution, regulation of vessel-source pollution and ocean dumping, the principle of equitable utilisation and the no harm rule, and multilateral and bilateral agreements.

Keywords: UNGA, international environmental law, ocean resources, freshwater resources, marine resources, marine pollution, vessel-source pollution, ocean dumping, equitable utilisation, no harm rule

(p. 338) 1 Introduction

In December 1970, the United Nations General Assembly (UNGA) adopted two resolutions of major significance for ocean and freshwater resources. One of them, Resolution 2570 (C) (XXV), related to law of the sea, the seabed, and the ocean floor, and the other, Resolution 2669 (XXV), related to international watercourses. The resolutions set in motion two parallel, lengthy, and complex processes that resulted in the adoption, at different later stages, of two conventions, namely the Convention on the Law of the Sea (LOSC) in 1982 and the Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) in 1997.

Although it may have been simple coincidence that both issues were considered by the UNGA in the same month, nevertheless, the legal regimes of oceans and international watercourses do have significant commonalities at a legal, as well as a practical, level. Apart from the obvious fact that most rivers flow into the oceans, both legal regimes are based in large part on customary international law, evidenced by the evolution of rules and principles, derived from the practice of states and patterns of treaty practice over many centuries. As with most such customary international law regimes, a few major issues had remained unsettled. In the law of the sea, these unsettled issues included a lack of agreement on the maximum acceptable width of the territorial sea around a state's coastline. In the law of international watercourses, they included the question of how to reconcile the obligation not to cause harm with the principle of equitable and reasonable utilization.

Both UNGA resolutions were designed to initiate a process of codification and progressive development of the law, although each took a different path. The path of the law of the sea was the convening of a major international conference, which took an unprecedented nine years to complete its work. In the law of international watercourses, a more traditional approach was taken by referring the issue to the International Law Commission (ILC) for the development of a draft convention.1 After nearly 25 years of work, the ILC referred its draft to the UN Sixth Committee and the UNGA.

In the latter part of the twentieth century, both of these largely customary law regimes have needed to respond to a range of different challenges. A greater understanding of the significance of environmental conservation and the need to maintain the integrity of ecosystems including marine and aquatic ecosystems has resulted in wider concerns about the increasing impact of industrial and agricultural discharges and runoff into both watercourses and oceans (see Chapter 24 ‘Ecosystems’). (p. 339) Customary international law has been slow to react to these new perspectives (see Chapter 19 ‘Formation of Customary International Law and General Principles’). Similarly, concern about the impacts of the increased exploitation of ocean resources—both living and non-living—has had parallels in watercourse systems where freshwater itself, as well as the living resources it carries, are becoming an increasingly scarce and highly sought after commodity.

However, there the similarities end. The law of the sea is a regime governing all aspects of ocean use under which certain areas of the ocean outside national juris-diction—the high seas—have traditionally been viewed as being open to all—the global commons. The law of international watercourses is, by comparison, essentially sectoral, governing the use and protection of surface waters and groundwaters shared by two or more states. Nevertheless, since 1970, both regimes have proved to be complex and contentious. This chapter discusses and analyses the international environmental law aspects related to ocean resources as well as those related to freshwater resources.

2 Ocean Resources

The regulation and management of marine resources has traditionally faced fundamental issues relating to jurisdiction over the oceans. Hugo Grotius's classic work of 1609 Ae Mare Liberum envisaged an ocean unbridled by national claims, in which the mercantile nations had unrestricted rights of navigation and passage. Even in 1615, this notion was little more than a pipe dream—many nations had made traditional claims over areas of the ocean, especially over those waters fringing their coastlines, and some to much wider areas (such as Sweden's claims to sovereignty over the Baltic during the era of Gustavus Adolphus).2 In the modern age, the challenge has been to develop legal frameworks for jurisdiction that will allow nations to exploit the many resources of the marine realm in a sustainable and orderly fashion. Voracious demands for fish as well as for fossil fuels have pressed exploration and exploitation into distant and dangerous waters. This expansion of scientific knowledge has revealed new types of resources, such as deep-sea fish species and new biological resources around deep ocean vents that function at temperatures in excess of 300 degrees Celcius. These discoveries pose unprecedented challenges to the legal regime of the oceans.

This part of the chapter will first give a flavour of the wealth of the resources in the world's oceans and the main challenges and threats facing them as well as the conservation of the marine environment. It will then look at ways that international law has (p. 340) sought to address these issues through the development of general rules—culminating in the conclusion of the comprehensive 1982 LOSC, which has been called the ‘constitution for the oceans’. It will then look at the development of specialized regimes addressing particular sectors, pollutants, and regions.

2.1 Marine Resources and the Conservation of the Marine Environment

2.1.1 Marine Resources

Marine resources are either living or non-living. In addition to fish, the living resources of the ocean include marine mammals, reptiles (such as turtles), and sea birds as well as crustacea, corals (including soft corals and deep ocean cold-water corals), and vegetation such as seaweeds and sea grasses (see Chapter 16 ‘Biological Resources’). The main threats that they all face come from mankind, principally from over-exploitation and the impacts of pollution. Although there are a myriad of international fisheries treaty regimes, including some bilateral ones dating back to the nineteenth century, most are creations of the post-Second World War years, and, of these, the majority were negotiated under the auspices of the UN Food and Agriculture Organization (FAO). Although these fisheries regimes are not, strictly speaking, environmental in nature, the evolution of international environmental law has introduced new concepts into their practice. Early fisheries treaties focused on the needs of human exploitation, using concepts such as maximum sustainable yield (defined in human consumption terms). The recognition by biologists—which is still not shared by many fishermen—that fishery resources are finite resources that require systematic conservation and management has been given a further boost by the growing adoption of the precautionary principle (see Chapter 25 ‘Precaution’), which has now been endorsed by the FAO for all capture fishery operations. Equally important has been the recognition that fish exist within a marine ecosystem and that sustainable exploitation requires an understanding of, and respect for, the parameters and constraints of this ecosystem. These concepts, which are discussed in more detail later in this chapter, are reflected in the 1995 UN Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement) and a number of other new fisheries agreements such as the 2000 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, and the 2001 Convention on the Conservation and Management of Fishery Resources in the South East Atlantic, establishing the South-East Atlantic Fisheries Organization (SEAFO).

States may exploit the non-living resources of the ocean floor within their exclusive economic zones (up to 200 nautical miles from their coast lines) or on their (p. 341) continental shelf as measured in accordance with the LOSC. In some areas, such as the North Sea, states have agreed to restrict the collection of aggregates, such as gravel, from the sea bottom because of the impact that such exploitation has on fish breeding areas. Concerns are also increasingly expressed about the impact on the ecosystem of the sea floor from destructive fishing gear such as bottom and otter trawls and other dredging techniques.

The primary focus of states’ exploitation of non-living resources, however, is on oil and natural gas occurring in pockets under the sea floor. The main environmental concerns have related to the emplacement of exploitation rigs on the sea floor (and their subsequent disposal) as well as leakages from platforms either through accidents or operationally from the use of oil-based muds as lubricants for the drills. Oil and gas exploitation is a lucrative industry dominated by companies from the Organisation for Economic Cooperation and Development (OECD) countries and is largely self-regulated. The industry standards are taken from best practices originating mostly from national legislation relating to North American and European waters. Although there are some regional regulatory requirements for oil and gas exploitation in the North Sea under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), there is no global regime that imposes common standards.

Beyond the continental margin, the LOSC designates the deep seabed as the ‘common heritage of mankind’ (Article 136) and establishes an International Seabed Authority (ISA) based in Jamaica, which is the sole body authorized to develop ‘rules, regulations and procedures’ for the exploitation and sale of minerals found there (see Chapter 23 ‘Common Areas, Common Heritage, and Common Concern’). At the time the LOSC was being negotiated (1973–82), the main resources under consideration were the so-called manganese nodules (polymetallic deposits found on the deep ocean floor). Today, it appears highly unlikely that these nodules will be mined economically in the near to medium term, given the depths at which they are found. However, other resources have been discovered in the meantime, such as those associated with the deep ocean volcanic vents (so-called ‘black smokers’). Not only do these vents often contain valuable minerals, but they also contain unique life forms that exist in a superheated environment. There are a myriad of possible industrial uses for these life forms, and it is clear that their exploitation needs to be regulated. However, they are not protected by the seabed regime contained within the LOSC, which only covers ‘solid, liquid or gaseous mineral resources’ (Article 133(a)).

A related lacuna is the inability of the LOSC regime to regulate deep sea trawl fishing over deep ocean floor habitats, which is designed to exploit deep sea species such as orange roughy and toothfish. Orange roughy (hoplostethus atlanticus), for example, do not reach sexual maturity until they are 30 years old, can live to 150 years, and do not breed every year. Scientists know little about them except that catches have dropped vertiginously after sustained exploitation, raising fears that they will face extinction without some form of regulatory regime.

(p. 342) Indeed, the full impact on the marine environment of human fishing activities is only now being properly understood. These impacts not only include direct damage to the ocean floor and marine benthic species by dredging and trawling, but also extend to depletion of threatened and endangered sea creatures such as turtles and marine mammals caught as by-catch. Scientists are now warning us of even more disturbing impacts, such as major disruptions to the marine food web by the selective culling of high-value large pelagic species such as tunas and bill fishes.3 The FAO reports that more than 75 per cent of fish stocks are fully or over-harvested, and scientists are suggesting that fishermen are increasingly targeting smaller fish and species lower down the food chain—the trophic levels—as the higher predators becoming more difficult to find.

The 1992 UN Conference on Environment and Development in Rio de Janeiro identified a major flaw in the LOSC relating to the effective regulation of fishing for straddling and highly migratory fish stocks—species such as tunas. Chapter 17 of Agenda 21 mandated the calling of a conference on this issue and for states to take effective action to deter the reflagging of fishing vessels. The UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks held four sessions between July 1993 and August 1995, and resulted in an innovative treaty—the 1995 Fish Stocks Agreement, which set in place new requirements for the conservation and management of these fisheries based in part on ecosystem concerns and which also imposed new obligations on states to control unregulated fishing.4 This agreement was quickly followed by the finalization within the FAO of a non-binding Code of Conduct for Responsible Fisheries, followed by a series of international plans of action (IPOAs), including one that set out an agenda for the control of illegal, unregulated, and unreported (IUU) fishing.

2.1.2 Marine Pollution

The bulk carriage by sea of oil and other dangerous substances poses other threats to the marine environment. Media coverage of high profile wrecks of oil tankers such as the Torrey Canyon in 1967, the Amoco Cadiz in 1978, or, more recently, the Exxon Valdez in Alaska or the Prestige in the Bay of Biscay highlight the devastating impacts on the marine environment of huge oil spills. The international community has reacted quickly to put regimes in place to address clean-up measures and the future prevention of such accidents. However, in the wider scheme of things, marine vessel casualties are not a significant cause of environmental degradation of the oceans. Much more damaging are practices that involve the systematic disposal of contaminants into the ocean. These practices include the dumping of sewage and other waste (p. 343) products at sea as well as what have been termed ‘operational’ discharges of contaminants through practices such as tank washing or the discharge of ballast waters from bulk carriers and from exploration and exploitation activities on the continental shelf, primarily, but not exclusively, for oil and gas. Many of these practices are controlled by specialized legal regimes.

Far more damaging still, and far more difficult to address, are the less easily identified impacts of pollution from land-based sources—either through direct discharges from factories or sewage facilities into the sea or rivers or through the indirect runoff of fertilizers, insecticides, and other chemicals, which either leach into watercourses and eventually into the oceans or enter the ocean through the atmosphere. Although the international community has begun to develop rules regulating the use of particularly harmful chemicals—such as the control of the ‘dirty dozen’ persistent organic pollutants (POPs) including polychlorinated biphenyls (PCBs) and dioxins by the 2001 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides—this process has really only just started (see Chapter 17 ‘Hazardous Substances and Activities’). Hundreds more harmful chemicals are not subject to any international regulatory regimes.

2.2 International Regulatory Responses

2.2.1 Jurisdictional Issues

Managing ocean resources presents a number of unique jurisdictional challenges. Many of the activities described earlier in this chapter take place on the open sea outside the territorial jurisdiction of coastal states. There are only a limited number of grounds recognized by international law for states to exercise criminal or civil jurisdiction so as to regulate maritime activities. The LOSC has largely codified the rules on jurisdiction, and recognizes three forms of national jurisdiction over such activities: that of the flag state, that of the coastal state, and that of a port at which a vessel calls. It is important to appreciate that these are the sole tools available for the enforcement of international rules and standards relating to the marine environment. Moreover, the rules governing the use of these are highly complex.

Vessels are subject to the primary jurisdiction of their flag state, namely the state in which they are registered and whose flag they fly. For many years, international lawyers have argued for a ‘genuine link’ between the vessel and its flag state—in terms of beneficial ownership or national control of the vessel. However, as regulatory requirements relating to health and safety as well as pollution control have grown in many industrialized flag states, many ship-owners have sought to escape these requirements by ‘reflagging’ with another state, particularly with the so-called ‘open registry’ states or ‘flags of convenience’—states such as Panama or Liberia—which require minimal links with the vessels they register and which do not generally have the capacity to exercise effective control over these vessels. To address concerns about (p. 344) the jurisdictional vacuum that can arise in such situations, there has been an increased recognition of the power of port states to inspect vessels that call at their ports to ensure that these vessels are in compliance with standards established by international law—particularly those established by international treaties and conventions. This tool has been important in the policing of major treaties designed to protect safety of life at sea (1974 International Convention for the Safety of Life at Sea—as amended) as well as the oil pollution conventions. In 1995, it was recognized by the UN Fish Stocks Agreement as a legitimate basis for jurisdiction over certain types of illegal fishing.

Even the concept of coastal state jurisdiction is relatively complex. Coastal states may claim maritime zones around their shores, measured from the low-water mark or from straight baselines delineated in accordance with the provisions of the LOSC. The baseline provisions are highly technical and even include detailed provisions for drawing baselines around archipelagic states. The zones that can be claimed from these baselines include a territorial sea up to 12 nautical miles wide, in which the coastal state can exercise sovereignty; a contiguous zone out to 24 nautical miles (in which it can exercise jurisdiction over issues relating only to enforcement of customs, fiscal immigration, and sanitary laws); and an exclusive economic zone up to 200 nautical miles. The coastal state may also claim rights over the resources of the seabed and subsoil out to the edge of its continental shelf, but, in this zone and in the exclusive economic zone, it possesses sovereign rights for the purposes only of exploring, exploiting, and managing the natural resources of these zones. Moreover, the rights that coastal states may exercise in these zones are all subject to the rights of navigation of ships flying the flags of other states. While coastal states may regulate activities relating to exploitation or conservation of resources within their zones, they do not have unlimited jurisdiction over foreign vessels and must comply with the LOSC requirements (for example, the prompt release of vessels and crews arrested for breaching coastal state rules—Article 292).

In short, the LOSC has codified a complex web of rules relating to the delineation and delimitation of these zones as well as to jurisdiction within these and other zones, such as the high seas. Seabed areas beyond 200 nautical miles or beyond the edge of the continental margin constitute the deep seabed, which under the LOSC is primarily regulated by the International Seabed Authority (ISA).

2.2.2 Regulation ofVessel-Source Pollution

Customary international law has had problems reconciling the notion of freedom of the seas with restrictions regarding the pollution of the oceans. As a result, most environmental norms have been introduced by treaty law. These have now been codified by the LOSC requirements that all states ‘have the obligation to protect and preserve the marine environment’ (Article 192) and, indeed, to take proactive measures to ‘prevent, reduce and control pollution of the marine environment,’ including those necessary to ‘protect and preserve rare or fragile ecosystems as well (p. 345) as the habitat of depleted, threatened or endangered species and other forms of marine life’ (Article 194). Nevertheless, from a practical point of view, effective measures to implement pollution controls over vessels at sea rely primarily on flag state jurisdiction. Coastal states’ rights to enforce anti-pollution measures are strictly limited as is their right to retain vessels in their ports that are in breach of national pollution control rules—unless these rules reflect international treaties. These restrictions make the process of development and enforcement of international controls on polluting activities in the ocean—such as controls on dumping or discharging from vessels—extremely complex. The majority of successful marine pollution control regimes have adopted gradualist approaches whereby ship-owners are given the space to adapt to new technologies as they build replacement vessels (for example, the approach of the 1973/78 International Convention for the Prevention of Pollution from Ships (MARPOL Convention), also discussed later in this chapter) or have used lists of prohibited or controlled substances and then, over time, have moved more substances from the controlled list onto the prohibited list. In the case of the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention, discussed later), the eventual result was a complete reversal of the burden of proof. Rather than listing substances that could not be dumped, the new approach instead lists the substances permitted to be dumped, with a ban on all others.

It is interesting that many of the new concepts now used for the management of marine living resources arose from treaty regimes established to deal with marine pollution. Both the precautionary principle and the ecosystem approach were developed in the context of regional efforts to deal with the very real impacts of multiple sources of pollution. Although there are a large number of marine environmental treaties, their development has been haphazard and essentially ‘disaster driven’. The early marine pollution conventions were developed to address particular problems that came to light as a result of well-publicized pollution incidents. So, although marine pollution from oil tankers is one of the smaller causes of marine pollution, it is subject to one of the most sophisticated regulatory regimes because of the immediate scale of impacts when tankers are wrecked. For example, the 1954 International Convention for the Prevention of Pollution of the Sea by Oil broke new ground by developing a regulatory framework for the carriage of oil by sea. However, the first conventions to provide for emergency action and for compensation for oil pollution damage were developed directly in response to the world's first major oil tanker casualty—the 1967 wreck of the Liberian oil tanker Torrey Canyon off the coast of southwest England. The 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties authorized emergency action by coastal states outside territorial waters. Two companion agreements, the 1969 International Convention on Civil Liability for Oil Pollution Damage and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, provided a basis for compensation claims against the owners and operators of oil tankers, supplemented by an international (p. 346) compensation fund (see Chapter 44 ‘International Responsibility and Liability’).5 Further, highly publicized tanker wrecks, notably the Amoco Cadiz off Brittany, the Exxon Valdez in Alaska, and most recently the Prestige off the coast of Spain, have led to further tightening of the regimes for the carriage of oil.6

However, more oil pollution is actually caused by ‘operational discharges’ from tanker washing and the discharge of bunkers. The main regulatory body for these issues is the International Maritime Organization (IMO), which is based in London. The IMO functions by consensus, and state delegations are often drawn from industry as well as government and non-governmental organizations. The regulatory authority for tankers—as with vessels of all kinds—is the state whose flag the vessel flies (the flag state). However, many of the states with the largest number of vessels are open registry states or flags of convenience, often without the capacity to exercise effective enforcement jurisdiction. The LOSC (Articles 218–19) does give port states authority to apprehend vessels for acts of pollution in breach of ‘applicable international rules and standards’ and to detain vessels that do not satisfy international construction, design, and equipment standards. Yet, generally in order for a treaty regime to apply to their vessels, the flag states must become a party to the treaty. Thus, the challenge has been to impose stricter standards on vessel owners in a way they find acceptable, so that they do not simply reflag in another state that has not agreed to the stricter standards. The IMO has done this through the gradual introduction of new technology into the construction of new tankers (for example, the use of divided hulls with so-called ‘load on top’ systems, which allow tankers to filter oil from ballast water, separate ballast water tanks, and even double hulls to lessen the risk of oil leaks from impacts). The 1973/78 MARPOL Convention provides the main regulatory regime for pollution from vessels of all sorts, including oil tankers, but it also extends now to the carriage of noxious liquid substances (Annex II), packaged waste (Annex III), sewage (Annex IV), garbage (Annex V), and to air pollution by a new Annex VI agreed in 1997.

This gradualist approach has been made possible by the MARPOL Convention's tacit amendment procedure (see Chapter 20 ‘Treaty Making and Treaty Evolution’), which allows the IMO Marine Environment Protection Committee (MEPC) to adopt technical amendments through amendment of the MARPOL annexes. These are subject to acceptance by two-thirds of the parties constituting at least 50 per cent of the tonnage of the world merchant fleet. The MARPOL requirements and also those of the London Convention, regulating dumping at sea, are incorporated by reference into the LOSC, and those provisions that are in force may now be argued to be (p. 347) binding on all parties to the LOSC or possibly also to be part of customary law and therefore binding on all states (see Chapter 32 ‘International Institutions’).7 Incorporation by reference is itself an important means of introducing dynamism into the overarching framework of the LOSC so as to keep it up to date. When the LOSC text uses phrases such as ‘applicable international rules and standards established by the competent international organisation,’ it is recognizing that over time these organizations will develop new rules and standards that by reference will become part of the applicable regime of the LOSC.

The MARPOL Convention also recognizes that stricter regimes may be designated within ‘special areas’ agreed by the parties. Such regimes now apply to a number of regional seas including the northeast Atlantic, the Mediterranean, the Black Sea, and the Baltic as well as the Gulf, and the Antarctic. The IMO MEPC has also recognized that certain areas may be designated by the IMO as ‘particularly sensitive sea areas’ in recognition of the fact that they are particularly vulnerable to environmental threats from maritime activities. A number of sensitive areas, notably the Great Barrier Reef off the northeast coast of Australia, have been so designated, permitting a wider range of controls over shipping.8

2.2.3 Regulation of Ocean Dumping

Another high profile activity with potentially large impacts, particularly localized ones, is the dumping of waste into the oceans. The 1972 London Convention regulating dumping at sea has taken a similar gradualist approach to this issue. Again, if dumping takes place on the high seas, the only entities that can regulate this activity are the flag states and the states from whose ports the vessel sails or returns to. The 1972 Convention adopted what has now become a common approach in environmental agreements—a listing system. It initially listed substances (in its Annex I) that could not be dumped in the ocean and, (in Annex II), listed substances that could be dumped only with a permit. As public support for the elimination of dumping in the oceans has grown, the regulatory structure, which requires parties to enforce obligations against any vessels loading in their ports or their flag vessel anywhere in the world, has progressively tightened its regime. Indeed, the initial approach of listing banned substances has been entirely replaced by what is called a ‘negative listing’ approach. Negative listing is an important application of the precautionary principle. It reverses the presumption that any non-listed substances may be dumped. Under the negative list, only listed substances may be dumped, while the dumping of all other substances is prohibited. By the use of this approach, the parties to the 1972 London Convention have effectively ended the ocean dumping of waste.

(p. 348) 2.2.4 Regulation of Pollution from Land-Based Sources

The single largest source of marine pollution is from land-based sources, whether from direct point sources, such as factories or sewage outfalls, or from diffuse sources—such as run off from the agricultural use of pesticides and agricultural fertilizers or even from the atmosphere. These sources are more difficult to regulate by international law because the activities that give rise to the problems take place within national jurisdictions, sometimes in up-stream states and in watercourses many miles from the ocean. It is a significant example of the natural overlap with the regulation of international watercourses, which requires the watercourse states to take all measures to protect and preserve the marine environment (as discussed later in this chapter).

The search for an international instrument to regulate ocean pollution from land-based sources—a problem termed ‘ubiquitous’ rather than ‘global’—has been elusive. In 1995, at a meeting in Washington, DC, a ‘Plan of Action’ was agreed, but its impacts have been disappointing as states have been slow to introduce the necessary regulatory changes. In fact, land-based pollution poses a classic ‘tragedy of the commons’ issue as the costs of reducing land-based sources have to be borne by coastal or riverine states, while the impacts are downstream and on the global commons—the oceans. The most successful approaches to a range of marine pollution issues have been those espoused by regional bodies, often where financing mechanisms such as the Global Environment Facility have been involved—as in the Danube/Black Sea area. Notable is the pioneering work done at the political level by the North Sea states in the context of a series of international conferences among the littoral states. The North Sea states decided not to develop a new convention, but rather to take decisions to implement existing instruments more effectively according to certain principles.

2.2.5 Regional Approaches

The integrated, holistic approach adopted by the North Sea states has generated a number of new approaches and principles that apply to a wider spread of pollution sources. One of those principles is the principle derived from the German Vorsorgeprinzip, which translates into English as the ‘precautionary principle’ and is now widely accepted as a general international environmental law principle (see Chapter 25 ‘Precaution’). This principle has spawned a number of devices under which the burden of proof is reversed in favour of conservation. A good example is the prior justification procedure pioneered by the regulatory body of the Paris Convention (the predecessor to the OSPAR Convention). Under this procedure an applicant had to prove that any proposed activity would not have deleterious environmental impacts, rather than the usual process of presuming no such impacts until they are proven. Although this approach was developed in relation to ocean dumping, the general approach is now being used more widely. Another such device is negative or reverse listing (discussed earlier in this chapter) under which only listed (p. 349) activities are permitted, rather than, as usual, vice versa. For land-based sources, the focus of regulation has shifted to the requirements for adoption and use of best available technology (BAT), in some situations best available technology not entailing excessive costs (BATNEEC), and best environmental practices (BEP).9 The northeast Atlantic bodies also pioneered the integration of nature conservation into their programs, which initially focused on anti-pollution measures. These programs gave rise to the argument that a holistic approach should be taken with respect to the whole marine environment—which is the precursor to the ecosystem approach to wildlife, natural resources, and fisheries management (see Chapter 24 ‘Ecosystems’).

At a broader regional level, the United Nations Environment Programme (UNEP) Regional Seas Programme provides a framework for the development of regional cooperation on marine environmental issues. Regional cooperation exists in some eighteen regions, of which some fourteen have concluded regional marine protection treaties. These cover the Mediterranean (1976, Barcelona), west and central Africa (1981, Abidjan), the southeast Pacific (1981, Lima), the Red Sea and Gulf of Aden (1982, Jeddah), the wider Caribbean (1983, Cartegena), East Africa (1985, Nairobi), the South Pacific (1986, Noumea), the Gulf (2001, Kuwait), northeast Pacific (2002, Antigua), and others in various stages of planning. These framework treaties are supplemented by protocols covering a wide range of issues including the regulation of land-based sources of pollution, ocean dumping, pollution from (and decommissioning of) offshore oilrigs, specially protected areas, and the protection of wildlife. Other regional regimes have been developed outside the UNEP framework including the comprehensive regime for Antarctica (1959 Antarctic Convention and 1980 Convention on the Conservation of Antarctic Marine Living Resources), the northeast Atlantic (1992, OSPAR), the Baltic (1974, Helsinki), the Black Sea (1992, Bucharest), and the Caspian (2003, Tehran).

3 Freshwater Resources

Pursuant to the UN General Assembly (UNGA) resolution on international watercourses, the ILC started working on a draft convention on the law of the non-navigational uses of international watercourses at its twenty-third session in December 1971. After close to a quarter of a century, and a series of reports and rapporteurs, the ILC completed its work, adopted the draft convention (UN Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention)), and recommended it to the UNGA in June 1994.10 (p. 350) It took three more years of deliberations by the UNGA's legal drafting committee, the ‘Sixth Committee’, acting as a working group of the whole, before the UNGA adopted the convention and opened it for signature on 21 May 1997.11 The convention has yet to enter into force.12

The ILC acknowledged the valuable contribution of international organizations, both governmental and non-governmental, to the codification and progressive development of international water law. It also recalled the existing bilateral and multilateral agreements regarding the non-navigational uses of international watercourses. Indeed, the regimes addressing international rivers and lakes are among the oldest international environmental regimes, dating back to the early twentieth century. The resolutions and declarations issued by the Institute of International Law and the International Law Association (ILA) have contributed significantly to the emergence of such regimes. The Madrid Declaration, which was issued by the Institute of International Law in 1911, forbade the emptying of injurious matters, such as those from factories, into international rivers. This obligation against causing pollution was elaborated and refined by the institute in later resolutions, particularly the Salzburg Resolution of 1961 and the Athens Resolution of 1979. The ILA also addressed the issue of pollution of international watercourses in a series of resolutions and rules, particularly the Helsinki Rules of 1966.

Treaties and conventions dealing with the environmental aspects of international rivers can also be traced to the beginning of the last century. As early as 1909, the United States and Canada agreed, as part of the treaty relating to their boundary waters, that such waters and the waters flowing across their boundaries should not be polluted on either side to the injury of health or property of the other. The 1923 General Convention Relating to the Development of Hydraulic Power Affecting More Than One State (Geneva Convention) dealt with the right of any riparian state to carry out on its territory any operations for the development of hydraulic power subject to ‘the limits of international law’. Such limits have been interpreted to mean the obligation of the state not to cause significant harm to other states. Thus, the work of the ILC grew out of rich historical tradition, including a considerable body of customary international law.

The Watercourses Convention aims, as stated in its preamble, at ensuring the utilization, development, conservation, management, and protection of international watercourses and promoting optimal and sustainable utilization thereof for present and future generations. The main areas that the convention addresses include the definition of the term ‘watercourse’; watercourse agreements; equitable and reasonable utilization and the obligation not to cause harm; planned measures; protection, (p. 351) preservation, and management; and dispute settlement. Thus, it is a framework convention that provides basic substantive and procedural principles which subsequent agreements could adopt or adjust.

This part of the chapter will discuss and analyze the environmental provisions of the Watercourses Convention, and compare them with the environmental provisions of other multilateral and bilateral watercourses agreements. It will also attempt to discern the emerging principles of international environmental law with regard to international watercourses.

3.1 Environmental Provisions of the Watercourses Convention

3.1.1 Principle of Equitable Utilization and the No Harm Rule

The environmental provisions of the Watercourses Convention must be seen against the backdrop of the larger debate on the relationship between the ‘no harm’ rule, a cornerstone principle of international environmental law (see Chapter 22 ‘Transboundary Impacts’), and the principle of equitable and reasonable utilization (see Chapter 27 ‘Equity’), which has played a central role in the law on international freshwater resources. Lower riparians tend to favour the no harm rule since it protects existing uses against impacts resulting from activities undertaken by upstream states. Conversely, upper riparians tend to favour the equitable utilization principle, precisely because it provides more scope for states to utilize their share of the watercourse for activities that may impact on downstream states.

Agreement on which rule takes priority has thus proven elusive and the issue dogged the ILC throughout its work on the watercourses topic. After the ILC completed its work, the resulting draft articles were considered by the Sixth Committee. The compromise regarding the relationship between the two principles, which is now contained in Article 5 (equitable and reasonable utilization and participation) and Article 7 (obligation not to cause significant harm) requires the state that causes significant harm to take measures to eliminate or mitigate such harm ‘having due regard to’ the principles of equitable and reasonable utilization. As Lucius Caflisch noted, ‘[t]he new formula was considered by a number of lower riparians to be sufficiently neutral not to suggest a subordination of the no-harm rule to the principle of equitable and reasonable utilization. A number of upper riparians thought just the contrary, namely that, that formula was strong enough to support the idea of such a subordination.’13

(p. 352) However, despite the adoption of the Watercourses Convention by a large majority with this compromise language, the issue seems far from resolved for many states on both sides of the debate. It is to be noted that the three countries that voted against the convention (Burundi, China, and Turkey) and some of those that abstained, such as Bolivia, Ethiopia, Mali, and Tanzania, are upper riparian states. Still, a number of downstream states, such as Egypt, France, Pakistan, and Peru, also abstained.14 The perception by the upstream riparians that the convention is biased in favour of downstream riparians, and vice-versa, is, no doubt, one of the main reasons for the stalling of the process of the signature and ratification of the convention. Yet, a close reading of Articles 5,6, and 7 would lead to the conclusion that the Watercourses Convention has indeed subordinated the obligation not to cause significant harm to the principle of equitable and reasonable utilization. Some of the factors for determining equitable and reasonable utilization under Article 6 (namely existing and potential uses and the effects of the uses of the watercourse by one state on other states) relate to the causing of harm. Moreover, Article 7 on the obligation not to cause significant harm is qualified by Articles 5 and 6 and further indicates that the causing of harm may be tolerated in certain cases such as when the possibility of compensation may be considered. However, it should be pointed out that there are experts in this field who interpret the convention as having presented the two principles as equals.15

3.1.2 Protection, Preservation, and Management of Watercourse Ecosystems

The general rule laid down in Article 7 of the Watercourses Convention relating to the obligation not to cause significant harm applies both to quantity and quality of the waters of the international watercourse and is a basic principle of customary law. The causing of harm could result from a decrease in the flow of the waters as well as from adversely affecting the quality of such waters and the environment of the watercourse. The convention addresses these environmental issues in Articles 20–3 of Part IV on Protection, Preservation and Management. Article 20 requires the watercourse states individually, and, where appropriate, jointly, to protect and preserve the ecosystems of the international watercourse. The obligation is broad because it relates to the entire ecosystems of the watercourse. Such ecosystems would go beyond water and would include the fauna and flora as well as the land contiguous to the watercourse, which should be used in a manner that would not harm the watercourse. The concept of the ecosystem (see Chapter 24 ‘Ecosystems’), as noted by one expert, ‘is and should be a broad one, its main function in ecological thought being to emphasize obligatory relationships, interdependence and causal relationships.’16

(p. 353) Article 21 requires watercourse states to prevent, reduce, and control pollution that may cause significant harm to other watercourse states or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purposes, or to the living resources of the watercourse. The article also obliges the watercourse states to consult with each other with the view to arriving at mutually agreeable measures and methods to prevent, reduce, and control pollution. Consultation would cover matters such as setting water quality objectives and criteria, establishing techniques and practices to address pollution from point and non-point sources, and establishing lists of substances ‘the introduction of which into the waters of an international watercourse is to be prohibited, limited, investigated or monitored’. Pollution is defined under Article 21 to mean any detrimental alteration in the composition or quality of the waters of an international watercourse that results directly or indirectly from human conduct.

Article 22 requires watercourse states to take all measures necessary to prevent the introduction into an international watercourse of alien or new species that may have effects detrimental to the ecosystem of the watercourse, resulting in significant harm to other watercourse states. Finally, marine environmental protection is dealt with under Article 23. It obliges watercourse states to take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards.

A number of observations can be made with regard to these four articles outlining the environmental obligations of the watercourse states. First, whereas the obligation to protect and preserve the ecosystems of the international watercourse under Article 20 is unqualified, the obligations with regard to pollution, introduction of alien species, and protection of the marine environment in Articles 21, 22, and 23, respectively, are qualified in different respects. Articles 21 and 22 establish significant harm as the threshold, whereas under Article 23, the watercourse states are required to take into account generally accepted international rules and standards. A statement of understanding issued by the Sixth Committee, convening as the Working Group of the Whole, clarified that the term ‘significant’ is not used in the convention in the sense of ‘substantial’ and that while the effect ‘must be capable of being established by objective evidence and not be trivial in nature, it need not rise to the level of being substantial.’ Another statement of understanding clarified that Articles 21, 22, and 23 ‘impose a due diligence standard on watercourse States.’17 It is widely agreed that the obligation under Article 20 is also of due diligence character and thus qualified at least in this sense.18

(p. 354) Second, Articles 20,21, and 23 require action by the watercourse states individually and, only where appropriate, jointly. As such, there is no obligation for collective action. The convention does not require the establishment of joint management mechanisms. Rather, it obliges watercourse states, at the request of any of them, ‘to enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism.’ Third, Article 23 on protection and preservation of the marine environment extends the possibility of cooperation to other states that do not share the watercourse. This matter is important, given that acts by either group of states could adversely affect the other or the marine environment.

Although the Watercourses Convention has not yet entered into force, there is no doubt that, through the codification of basic principles, it has contributed substantially to the development of a general international legal regime for the environmental protection of shared watercourses. Moreover, the convention has exerted considerable influence on subsequent watercourses agreements, such as the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC Protocol)19 and the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, which are discussed later in this chapter.

The influence and relevance of the Watercourses Convention has also been underscored by the International Court of Justice (ICJ) in the Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), which was decided by the court in September 1997, about four months after the adoption of the convention by the UNGA.20 The case provided an opportunity for the court to address a wide range of international legal issues, including the law of treaties, state responsibility, environmental law, and the concept of sustainable development, as well as international watercourses. With regard to international watercourses, in particular, the ICJ quoted from a decision of the Permanent Court of International Justice that the ‘community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of one riparian State in relation to the others.’21 In this connection, the court added that modern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, ‘as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses (p. 355) of International Watercourses by the United Nations General Assembly.’22 Furthermore, the court emphasized the concept of equitable and reasonable utilization when it directed that ‘the multi-purpose programme, in the form of a co-ordinated single unit, for the use, development and protection of the watercourse is implemented in an equitable and reasonable manner.23

In 2004 the ILA adopted the Berlin Rules. These rules revise all the previously adopted rules and declarations of the ILA on international water resources. Although the rules issued by the ILA have no legally binding effect, most of them are authoritative because they reflect customary international law. The Berlin Rules address in detail the protection of the aquatic environment, including the ecological integrity necessary to sustain ecosystems dependent on particular waters, ecological flows, alien species, hazard substances, pollution, and water quality standards. They also include an explicit reference to the obligation of assessing the environmental impacts of projects and programs. Although the rules go beyond the environmental provisions of the Watercourses Convention, they are based largely on these provisions, thus providing further evidence of the influence of the convention.24

3.2 UN Economic Commission for Europe (ECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention)

The environmental provisions of the Watercourses Convention are limited in scope when compared with the provisions of the UNECE Convention, which was adopted by the UNECE in 1992 and which entered into force in 1996.25 Article 3 of the UNECE Convention obliges the parties to take all appropriate measures to prevent, control, and reduce any transboundary impact. It goes on to require the parties to take all appropriate measures to prevent, control, and reduce the pollution of waters causing or likely to cause transboundary impact, and to ensure that transboundary waters are used with the aim of ecologically sound and rational water management and environmental protection. It lays down three principles to guide the parties when (p. 356) taking these measures. The first of these principles is the precautionary principle (see Chapter 25 ‘Precaution’). It requires that action to avoid the potential trans-boundary impact of the release of hazardous substances not be postponed on the ground that scientific research has not fully proven a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand. The second is the polluter pays principle, and the third is the sustainability principle. Under the last principle, water resources should be managed so that the needs of the present generations are met without compromising the ability of future generations to meet their own needs (see Chapter 26 ‘Sustainable Development’). The Watercourses Convention does not include an explicit reference to either of the first two principles. A reference to sustainability was included in the Watercourses Convention during the final drafting stages in the preamble and in Article 5 on equitable and reasonable utilization, and it has been argued that this reference implicitly recognizes the precautionary principle. Article 5 requires using and developing the international watercourse ‘with a view to attaining optimal and sustainable utilization thereof.’

The UNECE Convention defines transboundary impact to mean any significant adverse effect on the environment of one state resulting from a change in the conditions of transboundary waters caused by a human activity—the physical origin of which is situated wholly or in part within an area under the jurisdiction of another party. The definition goes on to state that such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures, or the interaction among these factors. They also include effects on the cultural heritage or socio-economic conditions resulting from alterations to these factors. Furthermore, the convention requires the parties to develop, adopt, and implement legal measures to ensure, inter alia, prior licensing of waste water discharges, limits of waste water discharges based on best available technology, biological treatments for waste water, application of environmental impact assessment and other means of assessment, and minimization of accidental pollution. It also requires exchange of data and information between the parties to cover, inter alia, the environmental conditions of the transboundary waters, emission and monitoring data, and measures taken or planned to be taken to prevent, control, or reduce transboundary impact.26

Thus, the environmental provisions of the UNECE Convention are far more elaborate and comprehensive than those of the Watercourses Convention, and, accordingly, it is more protective of the environment. This should be expected given the global nature of the Watercourses Convention, which needs to take into account the regional variations and standards being used in addressing environmental issues. Moreover, the Watercourses Convention is a framework convention, which is to (p. 357) be complemented by agreements among/between the different riparian states. Although the same could be said of the UNECE Convention, the latter provides more minimum standards and guidelines than the Watercourses Convention. It should also be noted that while the UNECE Convention pays more attention to the qualitative aspects of the shared watercourses, the Watercourses Convention is more concerned with the quantitative sharing and use of such waters. This difference in emphasis is apparent from the subordination by the Watercourses Convention of the obligation not to cause significant harm to the principle of equitable and reasonable utilization, on the one hand, and from the detailed annexes to the UNECE Convention dealing with water quality objectives and criteria, best environmental practice, and best available technology on the other hand.

Having been adopted in a regional setting, where the environmental standards of the parties are, by and large, similar and where an action by one state could easily affect the environment of other states, the UNECE Convention entered into force relatively quickly, four years after its adoption.27 Indeed, following the success of this convention, the parties decided in 2003 to amend its provisions to allow countries outside the UNECE region to accede. This amendment, which has not yet entered into force, has particular relevance and importance to the countries that share borders with members of the UNECE and could also play a role in exporting UNECE standards to other regions.

3.3 Other Multilateral and Bilateral Agreements

As mentioned earlier, the 1909 Boundary Waters Treaty between the United States and Canada is one of the oldest treaties addressing pollution of international watercourses. The treaty also established the International Joint Commission and equipped it with considerable authority. The Boundary Waters Treaty was supplemented by the 1972 Agreement on Great Lakes Water Quality. This agreement laid down general, as well as specific, water quality objectives. The specific objectives are defined as the level of substance or physical effect that the parties agree to recognize as the maximum or minimum desired limit. These objectives were further updated and strengthened by the 1978 Water Quality Agreement. The agreement aims at restoring and maintaining the chemical, physical, and biological integrity of the waters of the Great Lakes basin ecosystem. However, the agreement states that the specific objectives represent the minimum levels of water quality, and are not intended to preclude the establishment of more stringent requirements. These agreements were followed and further strengthened by the landmark Great Lakes—St. Lawrence River Basin Sustainable Water Resources Agreement, which (p. 358) was concluded in December 2005. This agreement indeed represents an interesting development because it has been concluded by the states and provinces sharing the basin,28 whereas, all the previous agreements on the Great Lakes have been concluded by the governments of the United States and Canada themselves. The agreement bans new diversions of water from the basin, allowing only limited exceptions, and requires the states and provinces to use consistent standards to review proposed uses of the Great Lakes waters. It also requires that lasting economic development be balanced with sustainable water use to ensure that waters are managed responsibly. In this regard, the agreement requires that regional goals and objectives for water conservation and efficiency be developed and reviewed every five years by the regional body established under the agreement. The agreement also commits the parties to provide leadership for the development of a collaborative strategy to strengthen the scientific basis for sound water management. Clearly, this agreement lays down more stringent standards than the previous agreements in the region.

Similarly, the multilateral and bilateral agreements on shared watercourses in Europe that have been entered into since the conclusion of the UNECE Convention apply even more stringent environmental standards than that convention. The UNECE Convention itself states that its provisions shall not affect the rights of the parties, individually or jointly, to adopt and implement more stringent measures than those set forth in the convention. The Convention on Cooperation for the Protection and Sustainable Use of the River Danube (Danube Convention), which was concluded in 1994, two years after the UNECE Convention was adopted, is an example. Although the Danube Convention sets the sustainable development and environmental protection of the Danube as the main objectives of the convention, it goes beyond the general obligation of preventing, controlling, and reducing trans-boundary impacts. Article 5 of the Danube Convention requires the contracting parties to develop, adopt, and implement legal, administrative, and technical measures to ensure efficient water quality protection and sustainable water use and, thereby, also prevent, control, and reduce transboundary impact. Due regard is paid by the convention to the protection of the Black Sea and its marine environment from pollution loads from sources in the catchment area of the Danube. The Danube Convention also includes an annex containing a list of industrial sectors and industries, as well as an additional list of hazardous substances and groups of substances, the discharge of which from point and non-point sources is prevented or considerably reduced. To keep the list current with advances in science and technology, the convention entrusts the International Commission for the Protection of the Danube with the task of updating the list. Thus, the Danube Convention has adapted the environmental provisions of the UNECE Convention to a specific watercourse context and has, indeed, gone beyond the environmental requirements set forth in this convention.

(p. 359) The 1999 Convention on the Protection of the River Rhine (Rhine Convention) similarly goes beyond requiring the parties to be guided by the precautionary, polluter pays, and sustainable development principles, which are also set forth in the UNECE Convention. In addition, the Rhine Convention requires that the parties be guided, inter alia, by the principle of preventive action, the principle of rectification, as a priority at source, and application and development of the state of the art and best environmental practice. A number of aims are spelled out in the Rhine Convention. Such aims include conserving, improving, and restoring the most natural habitats possible for wild fauna and flora in the water, on the river bed and banks, and in adjacent areas and improving living conditions for fish and restoring their free migration. They also include restoring the North Sea in conjunction with the other actions taken to protect it. It is worth noting that the first legal instrument dealing with the protection of the Rhine against pollution dates back to 1963, when the Agreement Concerning the International Commission for the Protection of the Rhine was concluded. This agreement was followed by the 1976 Convention for the Protection of the Rhine against Pollution by Chlorides, and the Additional Protocol of 1991 to the convention. These two agreements and the protocol were complemented by the Rhine Action Programme of September 1987 and later by the 1999 Rhine Convention. Thus, the Rhine can be said to be one of the first watercourses where detailed attention has been paid to the environment and, perhaps, one of the most environmentally protected watercourses in existence.

The number of multilateral and bilateral agreements dealing with the environment of international watercourses outside Europe and North America has also increased considerably in recent years. One instrument that is worth mentioning is the Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System. This agreement was concluded in 1987 by Botswana, Mozambique, Tanzania, Zambia, and Zimbabwe, under the auspices of the United Nations Development Programme. It aimed at the environmentally sound water resources management of the Zambezi river system, as well as strengthening regional cooperation for sustainable development. The action plan included 19 projects covering various aspects of sustainable environmental management. Another regional instrument that has addressed environmental issues in detail is the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC), which was concluded in August 2000. Article 4(2) on Environmental Protection and Preservation consists of four parts reproducing, in more or less the same wording and order, the four articles of the Watercourses Convention dealing with the environment.29

Furthermore, the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, which was concluded in April 1995, includes two (p. 360) articles that capture some of the basic environmental provisions for shared watercourses. Article 3 states the agreement of the parties to protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Mekong River from pollution or other harmful effects resulting from any development plans and uses of water and related sources in the basin. Article 7 requires the parties to make every effort to avoid, minimize, and mitigate harmful effects that might occur to the environment of the river system, especially with respect to water quantity and quality, aquatic (eco-system) conditions, and ecological balance, from the development and use of the Mekong water resources or discharges of wastes and return flows.30

Thus, the instruments discussed in this chapter present wide-ranging approaches to the environmental protection of international watercourses. While the UNECE Convention and the other multilateral instruments in Europe and North America have gone a long way towards such protection, the Watercourses Convention and other regional watercourse instruments are not as advanced. Yet, all of these instruments reveal both established principles of international environmental law, such as the obligation to reduce and control pollution, as well as emerging principles, such as the obligation to protect and preserve the ecosystems of international watercourses. The over-arching obligation of states to ensure that activities within their jurisdiction respect the environment of other states, which is affirmed by the ICJ in the Gabčíkovo-Nagymaros case, will keep developing with more advances in scientific knowledge of the ecosystems of international watercourses.

4 Conclusion

It is interesting, but not surprising, that two discrete legal regimes exist for the two major aquatic ecosystems—oceans and watercourses. As the previous discussion has highlighted, the legal issues raised by the two systems are very different. However, there are a number of important synergies. The most significant cause of marine pollution is from land-based sources, and this pollution is principally carried into the sea by rivers. Many watercourse regimes—such as those of the Rhine and the Danube—are explicitly designed to restore and protect the seas into which they empty—the North Sea and the Black Sea respectively. This is surely the reason why both regimes have explicitly incorporated modern thinking on the obligations to reduce and control pollution and to protect and preserve ecosystems.

(p. 361) It is instructive to compare the virtually identical obligations in relation to both of these issues that are included in the LOSC (Articles 192 and 194) and the Watercourses Convention (Articles 20 and 21). Moreover, both regimes strike at issues that many states regard as fundamental to their sovereign rights, whether this is freedom of navigation or the use of precious freshwater resources. The need for codification was obvious in 1970, but for both regimes, the process has been arduous. After nine years of negotiation, the 1982 LOSC took a further 12 years to come into force and then only after the conclusion of a major interpretative, arguably amending, agreement in 1994. The 1997 Watercourses Convention took more than 25 years to be finalized and, nearly a decade later, has yet to command sufficient ratifications to enter into force.

Ocean Resources

R. Barnes, D. Freestone, and D. Ong, eds., The Law of the Sea: Progress and Prospects (Oxford: Oxford University Press, 2006).Find this resource:

    A.G. Oude Elferink, ed., Stability and Change in the Law of the Sea: The Role of the Law of the Sea Convention (Leiden: Martinus Nijhoff, 2005).Find this resource:

      A.E. Boyle and D. Freestone, eds., International Law and Sustainable Development (Oxford: Oxford University Press, 1999).Find this resource:

        J. Charney and L. Alexander, eds., International Maritime Boundaries (Dordrecht: Martinus Nijhoff, 1993).Find this resource:

          P.H. Sand, The Effectiveness of International Environmental Treaties (Cambridge: Grotius Press, 1992), especially ‘International Marine Environmental Treaties’ at 149–254.Find this resource:

            Freshwater Resources

            L. Boisson de Chazournes and S.M.A. Salman, Water Resources and International Law (Leiden: Martinus Nijhoff, 2005).Find this resource:

              C. Bourne, International Water Law—Selected Writings of Professor Charles Bourne, edited by P. Wouters (The Hague: Kluwer Law International, 1997).Find this resource:

                S.C. McCaffrey, The Law of International Watercourses—Non-Navigational Uses (Oxford: Oxford University Press, 2001).Find this resource:

                  S.M.A. Salman and L. Boisson de Chazournes, International Watercourses: Enhancing Cooperation and Managing Conflict, World Bank Technical Paper no. 414 (Washington, DC: World Bank, 1998).Find this resource:

                    A. Tanzi and M. Arcari, The United Nations Convention on the Law of International Watercourse (The Hague: Kluwer Law International, 2001).Find this resource:

                      Notes:

                      (1) The International Law Commission (ILC) is a UN body composed of legal experts nominated by states, elected by the UN General Assembly (UNGA), and tasked with the codification and progressive development of international law.

                      (2) See D.P. O'Connell, The International Law of the Sea, volume 1 (Oxford: Clarendon Press, 1982) at 3.

                      (3) D. Pauly, V. Christensen, J. Dalsgaard, R. Froese, and F. Torres, Jr., ‘Fishing Down Marine Food Webs’ (1998) 279 Science 860; see also D. Pauly et al., ‘The Future of Fisheries’ (2003) 302 Science 1359.

                      (4) See W. Edeson, D. Freestone, and E. Gudmundsdottir, Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and the 199s Fish Stocks Agreement (Washington, DC: World Bank Publications, 2001).

                      (5) Note also the significant industry voluntary compensation schemes, such as Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP), dating from 1969; and Contract Regarding a Supplement to Tanker Liability for Oil Pollution (CRISTAL), which dates from 1971. See further D.W. Abecassis and R.L. Jarashow, Oil Pollution from Ships, 2nd edition (London: Stevens and Sons, 1985).

                      (6) V. Frank, ‘Consequences of the Prestige Sinking for European and International Law’ (2005) 20 Int'l. J. Marine & Coastal L. 1.

                      (7) P. Birnie and A.E. Boyle, International Law and the Environment, 2nd edition (Oxford: Oxford University Press, 2002) at 353.

                      (8) D. Freestone and K. Gjerde, ‘Particularly Sensitive Sea Areas: An Important Environmental Concept at a Turning Point’ (1994) 9 Int'l J. Marine & Coastal L. (Special Issue) 431.

                      (9) E. Hey, ‘International Regime for the Protection of the North Sea: From Functional Approaches to a More Integrated Approach’ (2002) 17 Int'l J. Marine & Coastal L. 325 at 340–50.

                      (10) See (1997) 2(2) Y.B. Int'l Law Commission at 88.

                      (11) The convention was adopted by a vote of 103 for and three against (Burundi, China. and Turkey), with 27 abstentions.

                      (12) According to Article 36 of the convention, 35 instruments of ratification/accession are needed for the convention to enter into force. As of November 2006, only 14 countries have ratified or acceded to the convention.

                      (13) See L. Caflisch, ‘Regulation of the Uses of International Watercourses,’ in S.M.A. Salman and L. Boisson de Chazournes, eds., International Watercourses—Enhancing Cooperation and Managing Conflict, World Bank Technical Paper no. 414 (Washington, DC: World Bank, 1998) 3 at 15.

                      (14) India, which is a downstream riparian vis-à-vis Nepal and China, and upstream riparian vis-à-vis Bangladesh, also abstained.

                      (15) A. Tanzi and M. Arcari, The United Nations Convention on the Law of International Watercourses (New York: Kluwer Law International, 2001).

                      (16) Professor Odum, quoted in D. Hunter, J. Salzman, and D. Zaelke, International Environmental Law and Policy (New York: Foundation Press, 1998) at 842.

                      (17) Due diligence has been defined as ‘the diligence to be expected from a good government, i.e. from a government mindful of its international obligations.’ See P.-M. Dupuy, ‘Due Diligence in International Law of Liability,’ in Organisation for Economic Co-operation and Development (OECD), Legal Aspects of Transfrontier Pollution (Paris: OECD, 1977) 369 at 369.

                      (18) See M. Fitzmaurice, ‘General Principles Governing the Cooperation between States in Relation to Non-Navigational Uses of International Watercourses’ (2003) 14 Y.B. Int'l Envt'l L. 3.

                      (19) This protocol revised and replaced the 1995 Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC). The revision was specifically done to make the revised protocol consistent with the Watercourses Convention.

                      (20) See Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) Judgment of 25 September 1997, [1997] I.C.J. Rep. 92 [Gabčíkovo-Nagymaros].

                      (21) See ibid. at para. 85.See also Territorial Jurisdiction of International Commission of the River Oder, Judgment no. 16, [1929] P.C.I.J. 4 (10 September 1929, Series A, No. 23) at 27.

                      (22) See Gabčíkovo-Nagymaros, note 20 above at para. 85.

                      (23) See ibid. at para. 150.

                      (24) It should be added that the convention was endorsed by a number of international entities including the World Commission on Dams. See World Commission on Dams, Dams and Development: A New Framework for Decision-making, Report of the World Commission on Dams (London: Earthscan, 2000) at 253, as well as the World Commission on Water for the Twenty-First Century (see Global Water Partnership, Towards Water Security: A Framework for Action (Stockholm: Global Water Partnership, 2000) at 32).

                      (25) The United Nations Economic Commission for Europe (UNECE) encompasses Europe, Central Asia, North America, and Israel.

                      (26) For an analysis of the UNECE Convention, see B. Bosnjakovic, ‘UNECE Strategies for Protecting the Environment with Respect to International Watercourses: The Helsinki and Espoo Conventions,’ in Salman and Boisson de Chazournes, note 13 above at 47.

                      (27) It is worth noting in this context that the non-regional members of the UNECE, the United States, Canada, and Israel, are not parties to the UNECE Convention.

                      (28) Those states are Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin in the United States, and the provinces of Ontario and Quebec in Canada.

                      (29) For an analysis of the provisions of the SADC Protocol, see S.M.A. Salman, ‘Legal Regime for Use and Protection of International Watercourses in the Southern African Development Community: Evolution and Context’ (2001) 41 Natural Resources J. 981.

                      (30) It is worth noting that only Cambodia, Lao Democratic Republic, Thailand, and Vietnam are parties to the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin. China and Myanmar, which are also riparian states of the Mekong River, are not parties to this agreement.