Comment : trends in the law applicable to freshwaters

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Book Chapter

Reference

Comment : trends in the law applicable to freshwaters

BOISSON DE CHAZOURNES, Laurence

BOISSON DE CHAZOURNES, Laurence. Comment : trends in the law applicable to freshwaters. In: Nolte, Georg. Peace through international law : the role of the International Law Commission : a colloquium at the occasion of its sixtieth anniversary . Dordrecht : Springer, 2009. p. 157-172

Available at:

http://archive-ouverte.unige.ch/unige:13264

Disclaimer: layout of this document may differ from the published version.

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Comment: Trends in the Law Applicable to Freshwaters

Laurence Boisson de Chazoumes

I. Introduction

My comments will deal with two issues. The first point is related to the characteristics of international warer law, more precisely to the inter- play of nonns elaboratcd at the universallevel with norms adopted at the regional, basin level or aquifer level. The second point will focus on dispute setrlement mechanisms with an emphasis on joint bodies and commISSions.

The law applicable ta international watercourses and transboundary aquifers (hereinafter, the law applicable to freshwaters) comprises uni- versally applicable norms, the content of which the International Law Commission (ILC) has codified and developed, as weil as a large nu m- ber of agreements developed at the basin or at regionallevel. A question about the interplay of norms elaborated at the universal level with norms adopted at the regional or basin level or aquifer level arises.' Another feature deserving attention in the ILC's work is the promotion of cooperation and the cesort to dispute settlement prevention mecha- nÎsms wÎth respect ta water issues, more specificall y the cesart to joint bodies and commissions. The Convention on the Law of Non- navigational Uses of International Watercourses (hereinafter the "1997

See L. Boisson de Chazournes, "Sur les Rives du Droit International de l'Eau: Entre Universalité el Particularismes"', in M. Kohen (cd.), La Promotwn de la Justice, des Droits de l'Homme et du Règlement des Conflits par le Droit International, Liber Amicorum Lucius Caflirch, 2007, 685 et seq.

G. Nolte (ed.), Peace through IrtlernationalLaw. 157

Beitriige l.um ausliindischen ôffentlichen Recht und Vôlkerrecht 211,

DOl 10.1007/978-3-642-03380-3_14. e Springer-Verlag Berlin Heidelberg 2009

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158 Boisson de Chazournes

UN Watercourses Convention")' and the Draft Articles on the Law of Transboundary Aquifers³promote cooper.tion by different mé.ns: the establishment of joint mechanisms and commissions of which riparian States are members, reguJar exchange of information and data, n~tifica

tion of planned measures and consultations:4. AIl these cooperative measures are key elements for preventing disputes. Being a means for ensuring cooperation, the establishment of joint bodies and commis- sÎons is al50 a means of preventing disputes from arising and of con- tributing to rheir resolution.⁵

II. The ILC's Work on International Freshwater Law and its Relation to More Specifie Instruments

A number of fe.tures of the ILC's work on freshwater resources are de- serving of greater attention. In particulac, the "non-binding" nature of the instruments adopted by the ILC is often stressed. This assertion should be analyzed in the context of the distinction berween the "in- strumentum" and the "negotium". Both notions can be helpful for iden- tifying the raison d'être of the nature of the narms codified by the ILe.

This will also shed light on their intetpl.y with other types of instru- ments dealing with water resources.

Convention on the Law of the Non-Navigational Uses of International Watercourses, Doc. AJRES/51/869,lLM 36 (1997), 700.

For the ccxc of the drafe Articles as adopted br the drafting commÎnce.

sec ILe, Drafe Anicles on the Law of Transboundary Aquifers, Doc.

AJCN.4/L.724.

4 The case-Iaw of various international dispute settlement mechanisms has contributed ta the sharing of these principles. On notification and consultation requirements in international law, sec the Lake Lanoux arbitration (France/Spain), ILR 24 (1957), lOI, para. 22-24. On joint commissions, sec the Case Concerning the Pulp Mills on the River Uruguay (Argentina/Uruguay), Request for the Indication of Provisional Measures, le] Reports 2006, para. 81.

See 1. Boisson de Chazournes, '"The Raie of Diplomatie Means of Solv- ing Water Disputes: A Special Emphasis on InstitutÏonai Mechanisms" in

"'Resolution of International Water Disputes", The Permanent Court of Arbi- tration/Peace Palace Papers, 2003, 177 et seq.

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Comment: Trends in the Law Applicable to Freshwaters 159

h The "Negotium" and "Instrumentum" Notions in the ILC's Work

If one takes into account the e'negotium" notion, i.e. the content of norms, one cannot deny that the ILC's regulations on transboundary water resources are characterized by their generality. Such general norms are based on regional and local circumstances and practices. At the same time, they transcend those particularities to gain universal ac- ceptation.⁶

In the area of natural resourccs management there is a nccd for roles with a universal outreach. Many transboundary water resources are not covered by any specifie agreement and, even when they are, such agreements May bind only sorne of the riparian States or cover only sorne of the aspects of the management of warer resources. In such con- text, codifications resulti.ng frorn endeavors conducted at the universal level allow States to ground their positions on dearer legal foundations.

Funher, universal norms may be successful in breaking up the preva- lenee of material inequalities between riparian States by allowing each of them to daim the application of legal rules that benefit their interests.

A number of States which became panies to the 1997 UN Watercourses Convention did so in the hope of benefiting from the application of the principles and rules set out by the Convention in their relations with other riparian States, be it as conventÎonal law when the Convention coters into force, or as customary law.⁷

The "instrumentum" notion sheds light on another aspect. An agree- ment such as the 1997 UN Watercourses Convention has not yet come

6 The reports of the ILC's special rapponeurs on the Law of International Watercourses for Uses other than Navigation are replete with a large quantity of regional and local practice cited for supporting universal principles. For in- stance, special rapporteur McCaffrey relies heavily on regional and bilateral trcaties for formulating the general dut y of cooperation and the principles of notification and consultation. See ILe, Third Report on the Law of Interna- tional Watercourses for Uses other than Navigation, S. M. McCaffrey, YB/Le 1987, Vol. II, Part one, Doc. A/CNA/406 and Corr.1 and Add.1 & 2.

As of September 2008, the Convention had been signed by 22 States - of which only 10 either subsequently ratified it (Germany, Portugal, South Arrica, Jordan, Namibi., Norway, Syrian Arab Republic), accepted ;t (Finland, The Netherlands) or approved it (Hungary) - a further 6 Scates acceded to it (Iraq, lebaoon, Libyan Arab Jarnahiriya, Qatar, Sweden and Uzbekiscan). Those 16 Parties faU short of the minimum number of 35 ratifications required for the en- try into force of the Convention. Information available on: http://untreaty.un.

org/ENGLISHlbible/englishinternetbible/partI/chapterXXVlIItreaty43.asp.

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iota force and may never do 50. This, however, does not depcive it of its role as an instrument of codification of universal principles silch as the principle of equitable and reasonable utilization. This point is i11us- trated by the dispute over the Gabêikovo-Nagymaros Project ~rought

before the International Court of Justice (IC]) concerning the erection of two dams on a portion of the Danube shared by Slovakia and Hun- gary.' The ICJ made reference to the principle of equitable and reasonable utilization enshrined in the 1997 UN Watercourses Convention and it affirmed the "basic right" of Hungary to "an equitable and rea- sonable sharing of the (esources of an international watercourse".9 The Draft Articles on the Law of Transboundary Aquifers ;"i11 also contrib- ute to the progressive development of law in this area. Both instruments, although of a soft law nature from a formai point of view, con- tribute to the codification of the applicable law.

The linkages between norms elaborated at the universallevel and norms adopted at the regional or basin leve! also illustrate the role that codifi- cation endeavors can play. When norms are general, ther can be used as a frame or a basis for the development of more specific instruments.

The 1997 UN Watercourses Convention has contributed to the har- monization of practices with respect to the management of interna- tional watercourses.

The 1997 UN Watercourses Convention or, at any rate, the preparatory works that led to its adoption (i.e. the ILC's Draft Articles on the Non- navigational Uses of International Watercourses)10 were considered in the formulation of international agreements on transboundary waters;

8 Gabêikovo-Nagymaros Project (Hungary/Slovakia), Judgement, ICJ Re- ports 1997, 7 et seq. (80), para. 147. In this case, the Court stated that:

"Re-establishment of the joint regime will also reflect in an optimal way the concept of common utîlîzation of shared water resources for the achievement of severa] objectives mentioned in the Treaty, in concordance with Article 5, para- graph 2, of the Convention on the Law of Non-navigational Uses of Interna- tional Watercourses, according to which: "Watercourse States shall participate in the use, devdopment and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the dut y to cooperate in the protection and devel- opment thereof, as provided in the present Convention (General Assembly doc.

AlSi/869 of Il April 1997)".

9 Ibid., para. 47.

10 The project was adopted in first reading, at the forty-first session of the ILe in 1991. See YBILC 1991, Vol. II, Part two, 66-70.

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such as, for example, the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (hereinafter ^Uthe 1992 Helsinki Convention") and the 1995 Agreement on the Coopera- tion for the Sustainable Development of the Mekong River Basin."

The negotiations of the 1992 Helsinki Convention were largely based on the ILC's Draft Articles on the Non-navigational Uses of Interna- tional Watercourses, which later resulted in the adoption of the 1997 UN Watercourses Convention. The 1992 Helsinki Convention was eoneeived as a framework agreement for States in the region eovered by the Economie Commission for Europe (UN/ECE) and sets out princi- pIes and rules with a general scope of application. Specifie agreements, which are based on this Convention, have subsequently been adopted.

The emulation of the work of the ILC and the work of the United Na- tions Economie Commission for Europe shows the importance of regu- lation efforts, at bath the regional and universallevel. At the river basin level, the 1992 Helsinki Convention facilitated the adoption of, and acted as a frame of rcference for, agreements such as the 1994 Conven- tion on Cooperation for the Protection and Sustainable Use of the Da- nube River,12 the 1999 Convention on the Protection of the Rhine,13 and the 1994 agreements concerning the protection of the Escaut and Meuse Rivers.^J4

Il Convention on the protection and use of trans-boundary watercourses and internationallakes, Helsinki, 17 March 1992, Doc. ENWAIR.53 and Add.l;

Agreement on the Cooperation for the Sustainable Development of the Me- kong River basin, !LM 34 (1995), 865.

12 Convention on Cooperation for the Protection and Sustainable Use of the Danube River, Sofia, 29 June 1994, http://faolex.fao.org/docsl texts/muIl7444.doc.

13 Convention on the Protection of the Rhine, Berne, 12 April 1999, hup:/ /www.iksr.org/fileadmin/usecupload/ documents/convention_on_tthc_pr otection_of_the_rhine.pdf.

14 Accords relatifs à la protection de la Meuse et de l'Escaut, Charleville- Méûères, 26 April 1994, http://www.legifrance.gouv.fr. AIso, the European Union Directive establishing a framework for Communiey action in the field of water poliey, adopted in 2000, takes into accoune the Helsinki Convention (Di- recuve 2000/60/EC of the European Parliament and of the Council of 23 Octo- ber 2000 establishing a Framework for Community Action in the Field of Wa- ter Poliey, OJ L 327, 22.12.2000, pp. 1-73). Morcover, it should be noted that in 2003, the Helsinki Convention was amended with a view tO extending its scope.

Under the terms of this amendment, States not parties tO the Economic Com- mission for Europe may adhere to the Convention upon approval by the Meet-

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2. The Concept of [ex specialis

Using the notion of Lex specialis to refer to specifie freshwater agree- ments can result in a misunderstanding of the interplay betw~n noems adopted at the universalleve! and agreements adopted at the regional or basin leve!. The notion of lex specialis serves as a rule for resolving con- f1icts of norms in the applicable law." Affirming a rule of priority for a set of norms over others risks jeopardizing the quest for harmonization and good management, a goal set out at the universalleve!. Mutual sup- portiveness between universal norms and specifie inst~ments on trans- boundary water resources is to be promoted.¹⁶Agreements concluded by States at the regionalleve!, basin leve! or aquifer leve! should not be isolated from norms adopted at the universal leve!. Equally, general norms should continue to give direction for the interpretation of nocms of specifie agreements and be applicable in situations not foreseen by these specifie agreements. In other words, the relationship between uni- versaI norms and specifie norms should not be understood in exclusive tecms.

This does not prevent specifie agreements from being concluded in or- der ta update or ta provide a more specifie interpretation of existing norms of a general content. This was the case for the Protocol for Sus- tainable Deve!opment of the Lake Victoria Basin signed in 2003 by Kenya, Tanzania and Uganda^l7which rcfers to the principle of precau- tion and the • poUuter-pays' principle and also for the Senegal River

ing of the Parties (Amendment to Articles 25 and 26 of the Convention, Third Meeting of the Parties, Doc. ECEIMP.WAT/14 http://www.unece.org/env/

documentsI2004/wac/ ece.rnp. wat.14 .e.pdf).

lS See Conclusions of the Srudy Group of the ILC, M. Koskenniemi, Frag- mentation of International Law: Difficulties arising from the diversification and expansion of internationallaw, Doc. AlCN.4/L.682, YBILC 2006, Vol. 2, Part, para. S.

16 See 1. Boisson de ChazournesIM.M. Mbengue, «A propos du Principe du Soutien Mutuel: les Relations Entre le Protocole de Cartagena et les Accords de I"OMC", Revue générale de droit international public 11 t (2007), 829 et 'eq.

17 Protocol for sustainable development of Lake Victoria basin, 29 Novem- ber 2003, anicle 4 (f) and (g) http://www.eac.intllvdp/Protocol_LV _Basin.pdf.

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Comment: Trends in the Law Applicable to Freshwaters 163

Water Charter of 2002 which recognizes the principle of sustainable deve!opment and the human right ta water."

Agreements adopted at the basin leve! are likely ta reflect the characteristics of the watercourse ta which they apply. An example of this is the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River basin. The Mekong basin is characterized by its sensitivity ta the changes in its flow that could be caused by inter-basin diversion projects. In this context, the 1995 Mekong Agreement pre- scribes the obligation ta cooperate for maintaining the flows on the mainstream of the Mekong.19 In addition, it should a1so be taken into account that changes to the Mekong's flow arising from differing water uses can have an impact on the livelihood of the riparian populations as weU as on the ecological balance of the Mekong basin. In order ta pre- vent these consequences, the parties ta 1995 Mekong agreement adopted the Procedures for Notification, Prior Notification and Agreement in 2003.²⁰This instrument takes into account general norms, i.e. norms on notification and consultation adopted at the uruversal level. At the same time, it sets down parcicular procedures for inter- basin diversion projects i.e. during wet season and dry season.2\

III. Prevention and dispute settlement

My second point deals with dispute setdement mechanisms. Nde Matz- Lück's paper emphasises the raie of judicial mechanisms ta achieve peace through law. These mechanisms play an important role. However, attention should a1so be given to the contribution of joint bodies and commIssIons.

18 The text of the Charter is available in L. Boisson de Chazoumes/R. Des- gagnefM.M. Mbengue/C. Romano, Protection internationale de l'environne- ment, 2005, 297 et seq. See article 4 of the Charter.

19 Article 6 provides: "To cooperate in the maintenance of the flows on the mainstream from diversions, storage releases, or other actions of a permanent nature; except in the cases of historically severe droughts and/or floods ( ... )"".

20 Procedures for nOlification, prior notification and agreement, 13 Novem- ber 2003, http://www.rnrcmekong.org/ downJoad/agreement9S/agreemencpro cedure.pd!.

2i See Article 6 of the Procedures for notification, prior nocification and agreement.

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164 Boisson de Chazournes

1. Judicial procedures

There has been a long standing practice in this area. Water disputes have been brought before the Permanent Court of Internatiol)al Justice (PCIJ), the ICJ and arbitration mechanisms established undcr the aegis of the Permanent Court of Arbitration (PCA), to cite but a few of the mechanisms resorted to.

Since the Gabêikovo-Nagymaros case, the ICJ has heard three other cases involving water issues: the Namibia v. Botswana case (1999)2', the Camemon v. Nigeria dispute (2002)2', and the Benin. v. Niger dispute (2005).24 Ali these cases concerned boundary issues, but they also ad- dress sorne issues of water management for economic purposes and of access to warer. There is also a pending case between Argenttna and Uruguay with respect 10 water quality issues."

Water disputes may be brought before inter-State arbitration tribunals.

The 1957 Lake Lanoux case between France and Spain is one ex ample.'"

Arbitration procedures are increasingly used by States for solving disputes. An explanation of this trend could be that States' interests can be better taken inlO account by arbitral procedures than more rigid judicial procedures. The dispute between the Netherlands and France brought before the PCA and related to the interpretation of the 1976 Rhine Convention and its 1991 Protocol on the protection of the Rlùne againS! pollution by chlorides provides an interesting example of resort to arbitration in a water-related dispute.27

Furthermore, arbitration procedures can also be used br actors othec than States such as private parties. An example of this are the cases submitted to arbitral tribunals constituted under the aegis of the Inter-

22 ICJ ReportS 1999, 1045 et seq.

25 Pulp Mills on the River Uruguay (ArgentinafUruguay), Request for the Indication of Provisional Measures (13 July 2006) and Request for the Indica- tion of Provisional Measures (23 January 2007).

26 Lake Lanouxarbitration (France/Spain), ILR 24 (1957), lOlo

27 Case Concerning the audiling of the accounts between the Kingdom of the Netherlands and the French Repuhlic purs.ant to the Additional Pro'ocol of 25 September 1991 to the Convention on tbe Protectwn of tbe Rhine against pollu- tion by chlorides of 3 December 1916 (Netherlands/France), 2004, http://www.

pca-cpa.org/upload/files/NetLF,-award_English.pdf.

. .

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Comment: Trends in the Law ApplîcabJe ^[0Freshwaters 165 national Centre for Settlement of lnvestment Disputes (ICSID). The 1965 Convention on the Settlement of Investment Disputes bctween States and the National of Other State is the oldest institutionalized ar- bitration procedure granting non-state actors access to internatÎonal ar- bitrai tribunals.²⁸Concession agreements regacding water and sewage services are core questions in several cecent cases referred to ICSID Tri- bunals." Another example of dispute settlement mechanism involving actors other than States is given by chapter 11 of the North American Free Trade Agreement (NAFTA). Under this regional agreement an investor from a NAFTA Party, i.e. Canada, Mexico and United States, may submit to arbitration a daim that another Party has breached an obligation under the treaty.30 Of particular note in this context are the 1998 case on water issues initiated by Sun Belt (a US company) .gainS!

Canada" and a 2004 daim from Texan landowners against Mexico for the utiIization of waters from the Rio Grande."

Other dispute se!tlement procedures allow non-State aclOrs ta be parties to them. Such is the case in the area of human rights. Although

28 Convention on the Seulement of Investment Disputes between States and Nationals of Other States, Washington 18 March 1965, 1 LM 4 (1966), 524 .

29 See, among others: Biwater Gauff v. United Republic of Tanzania (Case No.ARB/05/22), award of 24 July 2008 (concluded); Azurix Carp. v. The Ar- gentine Republic (Case No.ARB/Ol/12), award of 14 July 2006 (pending);

Aguas Argentinas. S.A., Suez, Sociedad General de Aguas de Barce/ona, S.A.

and Vivendi Universal, S.A. v. Argentine Republic (Case No. ARB/03/19) (pending).

30 Article 1115 of the NAFTA establishes "a mechanism for the settlement of investment disputes that assures both equal treatment among investors of the Parties in accordance with the pnnciple of international reciprocity and due process before an impartial tribunal". Article 1120 provides that: "'a disputing investor may submit the daim to arbitration under: (a) the ICSID Convention, provided that both the disputing Party and the Party of the investor are parties

(0 the Convention; (h) the Additional Facility Rules of ICSID, provided th.t ei- ther the disputing Party or the Party of the investoc, but not both, is a party to the ICSID Convention; or (c) the UNCITRAL Arbitration Rules", North American Free Trade Agreement between the governments of Canada, Mexico and United States, 1 January 1994, ILM 32 (1994), 265.

31 Sun Belt Inc. and Canada, Notice of intent to submit a daim to arbitra- tion, 27 Novemher 1998, Notice of daim and demand for arbitration, 12 Octo- ber 1999, http://www.naftaclaims.comldisputes_canada_sunbelt.htm.

32 Texas Water Claims, award of 21 June 2007, http://www.naftaclaims.com!

Disputes/MexicorrexaslBayview.J ursdictional_Award_19-05-07 .pdf (pend ing).

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166 Boisson de Chazournes most human rights tre.ties were dr.fted and adopted before w.ter protection became a matter of international concern³3, UN treary bodies and regional human rights courts have dealt with wateT issues.³⁴Indeed, even when universal or regional human rights treaties do not explicitly contain provisions relating to the environment, the competent judicial bodies have addressed questions concerning the protection of natural resources.³⁵

2. Joint Bodies and Commissions

Judici.1 and arbitral procedures are not the only means to settle water disputes. The contribution of institutional mechanisms to dispute avoidance and settlement among riparian States is also to be taken into consideration. Among the various means of dispute settlement procedures available to States, the 1997 UN Watercourses Convention makes mention of the joint comIIÙssions put into place by riparian States.3⁶

33 Two UN human rights instruments explicitly refer to water: the Conven- tion on the Elimination of Ali Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child. At the regional leve!, the Alâcan Charter on the Rights and Welfare of the Child should be mentioned. Convention on the Elimination of Ali Forros of Discrimination Against Women (CEDAW) A/RES/ 34/180 of 18 December 1979, 34 U.N.

GAOR Supp. (No. 46), 193, Doc. A/34/46 (art.14 (2)(h)); Convention on the Rights of the Child, A/RES/44125 of 20 November 1989. annex, 44 U.N.

GAOR Supp. (No. 49). 167, Doc. A/44/49 (1989), (art. 24(1)(2)(c); Alrican Charter on the Rights and We!fare of the Child OAU Doc. CAB/LEGI24.9/49 (1990), (art.14).

34 See for example in regard to UN bodies: Communication No. 167/1984, Ominayak, Chief of the Lubicon Lake Band v. Canada, UN GAOR, 45th Sess., Supp. N. 40, vol. 2, Doc. A/45/40. In regard to regional human rights mechanisms see: African Commission on Human and People's Rights, Com- munications 25/89, 47/90,56/91,100/93, World Organization against Torture et al. v. Zaire, 2 October 1995 and Communication 155/96, The Social and Eco- nomie Rights Action Center and the Center for Economic and Social Rights v.

Nigeria, 27 May 2002.

35 See Zander v. Sweden, European Court of Human Rights, Series A, No.

279B,1993 .

.36 Article 33, paragraph 2 provides that: "If the Parties concerned cannot reach agreement by negotiation requested by one of them, they may jointly seek the good offices of, or request mediatÏon or conciliation by, a third party,

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Comment: Trends in the Law Applicable to Freshwacers 167 Sorne of Ihe joint bodies and commissions have been granted dispule avoidanee and settlement funetions such as the International Joint Commission pUI into place by the 1909 Boundary Waters Trealy between Great Britain and Uniled States." While such prerogatives may not have been specifically eonferred in other situations, recourse to the implied powers doclrine has enabled instilulional mechanisms 10 par- ticipate in providing a framework for consultations, negotÎations and good offices.

The role of joint bodies and commissions as weil as Ihe strengthening of their powers should attract more attention. These mechanisms contrib- ute to the furtherance of dialogue between riparian Slates and help to resolve disputes. In fact, where joint commissions are in place, relevant

ICJ

decisions have emphasized their role. This is illustraled by Ihe land and maritime boundary dispute between Cameroon and Nigeria and by Ihe Pulp Mills on Ihe River Uruguay case."

ln the boundary dispute belween Cameroon and Nigeria, the rC] dealt wilh the role of Ihe Lake Chad Commission put into place by the Con- vention and Statutes relaling 10 the Development of the Chad Basin adopted in 1964.³⁹It is interesting to nOIe thal the Court rejected the Nigerian argument that "the role and Statute of the Commission" must be understood c'in the framework of regional agencies" ^4Qreferred ta in

or make use. as appropriace, of any joint watercourse institutions that may have been established by them or agree ta submit the dispute to arbitration or CO the International Court of Justice".

37 Treaty relating tO Boundary Waters, Washington Il January 1909, http://www.ijc.org/rel/agree/water.html. See L. Caflisch, "Règles générales du droit des cours d'eau internationaux·, RCAD/ 219 (1989), 9 et seq. (207-208).

On the Imernational Joint Commission, see C. Romano, The Peaceful Settle- merll of International Environmental Disputes. A Pragmatic Approach. 2000, 264-265.

" lCJ Reports 1998,275 et seq. (304-305), paras. 64-65; lCJ Reports 2002, 303 el seq. (332, 342), paras. 36, 53. Pulp Mill, on the Rroer Uruguay (Argen- tina/Uruguay), Order on the Request for the indication of provisional meas- ures, 13 July 2006, paras. 80-82.

39 Convention and Statutes relating to the Development of the Chad Basin, 22 May 1%4 in: Treaties conceming the Non-Navigation Uses of international WatercoUTses, FAO Legislative Srudy, 10. Article 8 of the Statuees establishes the Chad Basin Commission and Article 9 (g) endows the Commission with au- thority to examine complaints and to promoce the settlement of disputes .

.j() [CJ Reports 1998, 275 etseq. (306), para. 66.

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Article 52 of the United Nations Charter. ⁴¹The Court indicated that the purpose of the Lake Chad Cornrrtission is not to settle regional mat- ters relating to the maintenance of international peace and security un- der Chapter VIII of the UN Charter. The Court noted that:

"[wJhatever their nature, the existence of procedures for regional nego- tiation cannot prevent the Court from exercising the functions con- ferred upon it by the Charter and the Statute"." Although the IC] ac- knowledged that river commissions can be endowed with means for re- solving disputes between riparian States, it considere<! it important ro point out that these rnechanisms cannot prevent the principal UN judi- cial organ from exercising its function. .

ln the Ca,e concerning the Pulp Mill, on the River Uruguay, the Court observed that the joint comrrtission between Uruguay and Argentin. is

"a joint mechanism with regulatory, executive, administrative, cechnicaI and concili.tory functions [ ... ] entruSted with the proper implementation of the rules contained in the 1975 Statute governing the manage- ment of the shared river reSOUTce" and chis mechanism conscitutes octhe envisaged forum>' for these purposes.⁴³Joint commissions are means for strengthening cooperation hetween riparian States. Riparian States can meet, exchange viewpoints and agree on the implementacion of princi- pIes in relation to water management and protection.

Joint Commissions are necessary corollaries of a sound and sustainable utilization and protection of transboundary water resources. They are important means for implementing the "equitable and reasonable use"

principle,« and the "no-harrn rule"." A series of factors is to be taken

41 According to paragraph 2 of Article 52: "The Members of the United Na- tions entering into such arrangements or constituting such agencies shaH make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council".

" ICJ ReportS 1998,275 et seq. (307), para. 68.

43 Pulp Mills on the River Uruguay (Argcntina/Uruguay), Order on the Re- quest for the indication of provisional measures, 13 July 2006, para. 80-82.

44 According to Article 5 of the 1997 UN Watercourses Convention: "Wa- tercourse States shall in their respective terri tories utilize an international wa- (ercourse in an equitahlc and reasonable manner. In particular, an international watercourse shaH be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrorn, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercoursc. Watercourse States shaH partici- pate in the use, development and protection of an international watercourse in

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Comment: Trends in the Law Applicable to Freshwaters 169

into accoum in the implememation of these principles. They include social, economic, cultural as weB as historical considerations. The UN Watercourses Convention and the Draft Articles on the Law of Trans- boundary Aquifers call for a mutually supportive application of these principles through reference to the above-mentioned factors." How- ever, the absence of any priority ranking among the factors to be im- plemented, with the exception of the satisfaction of vital human needs,"

generates the risk of maintaining the status quo, there beîng no incentive for States to reach an agreemem. In such a context, joint bodies and commissions, where the concerned States mee~ exchange viewpoints and agree on the implememation of princip les are important. They con- tribute to the furtherance of dialogue and to the sound and equitable use of transboundary water resources.

The protection of the environment is also a substantial component of the regime applicable to transboundary water resources .... ln trus area

(00, there is a necd for an instituttonal support (0 ensure sound environmental management of water resources. Institutional mechanisms help the development and monitoring of the implementation of an environmental regime.

an equitable and reasonable manner. Such participation includes both the right to utilize the watercourSe and the dut y to cooperate in the protection and development thereof, as provided in the present Convention". See also Article 4 of the ILC's Draft Anicles on the Law of Transboundary Aquifers.

45 Article 7 of the 1997 UN Watercourses Convention reads as follows:

"Watercourse States shall, in utilizing an international watercourse in their terri- tories, take aU appropriate measures to prevent the causing of significant harm to other watercourse States. Where significant harm nevenheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take ail appropriate measures, having due regard for the provisions of Articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation". See also Article 6 the ILC's Draft Anicles on the Law of T ransboundary Aquifers.

046 See Article 6 of the 1997 UN Watercourses and Article 5 of the Draft Ar- ticles on the Law of Transboundary Aquifers .

.47 See Article 10 of the UN Watercourses Convention and Article 5.2 of the Draft Articles on the Law of Transboundary Aquifers.

48 See Articles 20 and 21 of the UN Watercourses Convention and Articles 9 and 11 of the Draft Articles on the Law of Transboundary Aquifers.

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170 Boisson de Chazournes Being a means for ensuring cooperation, the establishment of joint bodies and commissions is also a means of preventing disputes from arising and of contributing ta their resolution. Since as early as the beginning of the twentieth cenrury, calls have been made by scientific associa- tions⁴⁹ and international institutionsso for the establishment of joint bodies and commissions to achieve these ends. In practice riparian States have established instirutional mechanisms, their structure and fUlletions varying from one agreement to another and from Olle watercourse to another.⁵¹

It is interesting to note that in the area of navigation, international commissions have been created since very early on. The Rhine Com- mission and the European Commission for the Danube were created in 1815 and 1856 respectively.52 In the course of the twentieth cenrury, with the expansion of the various uses of watercourses, the need to put in place new institutional mechanisms became increasingly apparent. A large number of such mechanisms have been created in Europe as well as jn other regions of the world. This has especially been the case in Af- rica. However it is also true that there are regions or watercourses for which no institutional mechanism has yet been put in place.

Seen in such a context, the 1997 UN Watercourses Convention and the ILC's Draft Anicles on the Law of Transboundary Aquifers appear rather timid in their call for the establishment of joint mechanisms.⁵³

49 Paragraph 7 of the Resolution on International Regulations Regarding the Use of International Watercourses adopted by the Institut de droit international in 1911 states: " ... that the Înterested States appoint permanent joint commissions, which shaH render decisions, or at least shaH give their opinion, when, from the building of new establishments or the making of alterations in exisring establishments, senous consequences might result in that part of the stream situation in the temtocy of [another] State"'. Resolution adopted on 20 April 1911, Annuaire de l'Institut de droit Intemational24 (1911), 365-367.

50 See Recommendarion 51 of the 1972 United Nations Conference on the Human Environment's Action Plan for the Human EnvÎronment.

51 See Caflisch, see note 107, 196-202; P. Birniel A. Boyle, International Law and the Environment, 2002, 304.

52 For other references on joint mechanisms of this type, see ILe, Sixth Re- port on the Law of the Non-navigational Uses of International Watercourses, S.

McCaffrey, Doc. AlCN.4/4271990, 42 et seq.

53 See Articles 8 and 24 of the UN Watercourses Convention and Articles 7 and 13 of the Draft Articles on the Law of Transboundary Aquifers. Article 13 reads as follows: '" Aquifer States shaH establish and implement plans for the proper management of their transboundary aquifer or aquifer system in accor-

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1.

Article 24 of the UN Watereourses Convention indieates, although in rather 190se terms, that a sustainable management of a watercourse is a collective process among riparian States and that a joint management mechanism is a means to trus end. The rather vague statement of the 1997 UN Watercourses Convention is to be contrasted with the 1992 Helsinki Convention's provisions. These Jatter provisions are signifi- candy more forward-Iooking and comprehensive, in their dealing with cooperation through institutional suppOrt in the environmental area.⁵⁴ In this comex!, there is a ncecl to reflect more extensively on the role of institution al mechanisms for preventing water disputes and for ensuring the sustainable management of transboundary water resourees. Interna- tional regulations could induce States to put into place bodies for man- aging international watercourses and shared aquifers as well as to de- ve!op diplomatie efforts to establish joint bodies endowed with effec- tIve powers.

IV. Conclusion

The "negotium" and "instrumentum" notions illustrate the interplay between universal norms and specifie agreements and shed light on sorne features of the ILC's work on freshwater law. When one looks at the work of the ILC, the quest for harmonization between universal norms and agreements adopted at the regional leve! or .quifer leve! is evident. Geographical or sociological particularities of each watercourse or aquifer are taken into account by specifie agreements. However, norms adopted at the universal leve! are needed. The application and interpret.tion of specifie agreements should not be detached from the norms adopted at the universal leve!. When States .dopt a specifie agreement or they interpret it, international law should be taken inta account. In this context, the reference to the notion of Lex specialis might raise confusion on the contours of the interplay between norms of general content and specifie agreements.

dance wÎth the provisions of the present draft Articles. They shall, at the re- quest by any of them, enter ioto consultations concerning the management of the transboundary aquifer or aquifer system. A joint management rnechanism shaH be established, wherever appropriate".

54 See Article 9 of the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes.

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172 Boisson de Chazournes

Another matter of considerable importance is the contribution made by dispute settlement mechanisms ta the harmonious relations between States. Currencly, there exist several fora where States May bring daims on freshwater issues. They include judicial and arbitral procedures.

Sorne of these procedures can be used by actors other than States, espe- ciaUy in the areas of investment law and human rights law.⁵⁵Among dispute avoidance and dispute settlement mechanisms. the resort ta joint commissions should be promoted among States. Specifie agreements on freshwater resources, including conventions concluded br States for the management of aquifers," usuaUy provide for the establishment of joint commissions betwcen riparian States. The practice in this area offers many insights. There is a need for the rules elaborated at the universallevel to be more forthright in requiring institutional cooperation.

55 See L. Boisson de Chazournes, "Water and Economies: Trends in Dispute Settlements Procedures and Practice" ^Jin E. Brown Weiss/L Boisson de Cha- zournes/N. Bernasconi-Osterwalder (cds.), Freshwater and International Eco- nomie Law, 2005, 333 et seq.

56 See the 1978 treaty berween the Canton of Geneva and the French Prefeet de Haute-Savoie on the Aquifer Genevois and the 2000 agreement between Chad, Egypt, Libya, ,od Sudan on the Nubian Sandstone Aquifer System that mat has been entered into solely co manage groundwater, an agreement which has created joint commissions. See S. Burchi/K. Mechlem, Groundwater in in- ternational /aw: compilation of treaties and other Legal instruments, FAO/UNESCO, Rome, Paris, 2005.