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The International Law Commission Adopts Draft Articles on International Watercourses

Published online by Cambridge University Press:  27 February 2017

Stephen C. McCaffrey
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Extract

At its 1994 session, the International Law Commission (ILC) completed the final adoption (“second reading”) of a complete set of thirty-three draft articles on the law of the non-navigational uses of international watercourses, together with a resolution on transboundary confined ground water. The Commission submitted the draft articles and the resolution to the General Assembly and recommended that a convention on international watercourses be elaborated by the Assembly or by an international conference of plenipotentiaries on the basis of the Commission’s draft.

Type
Current Developments
Information
American Journal of International Law , Volume 89 , Issue 2 , April 1995 , pp. 395 - 404
Copyright
Copyright © American Society of International Law 1995

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References

1 GA Res. 2669 (XXV), para. 1 (Dec. 8, 1970).

2 [1974] 2 Y.B. Int'l L. Comm'n, pt. 1, at 301, UN Doc. A/CN.4/SER.A/1974/Add.1 (pt. 1).

3 For the questionnaire and a discussion of other questions on which the views of states were sought, see id. at 303–04.

4 Id. at 301.

5 [1976] 2 Y.B. Int'l L. Comm'n, pt. 1, at 147. The Commission later received replies from eleven additional states. See 1978 id. at 253; 1979 id. at 178; 1980 id. at 253; and 1982 id. at 192.

6 1976 id. at 184.

7 Id. at 162, para. 164. This question was not in fact to be addressed until 1991, the year in which the draft was completed on first reading. It is resolved in Article 2 of the draft articles, “Use of terms.” Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 199, UN Doc. A/49/10 (1994) [hereinafter 1994 ILC Report].

8 [1977] 2 Y.B. Int'l L. Comm'n, pt. 2, at 124, UN Doc. A/CN.4/SER.A/1977/Add.1 (pt. 2).

9 In 1982 Ambassador Jens Evensen of Norway succeeded Judge Schwebel, who had resigned from the ILC on his election to the International Court of Justice. [1982] 2 Y.B. Int'l L. Comm'n, pt. 2, at 121. The author was appointed special rapporteur in 1985 following Evensen's election to the Court. 1985 id. at 70. Professor Robert Rosenstock of the United States was appointed special rapporteur in 1992, the author not having stood for reelection to the Commission. Report of the International Law Commission on the work of its forty-fourth session, UN GAOR, 47th Sess., Supp. No. 10, at 130, UN Doc. A/47/10 (1992).

10 The articles, adopted in 1980, were Article 1, Scope of the present articles; Article 2, System States; Article 3, System agreements; Article 4, Parties to the negotiation and conclusion of system agreements; Article 5, Use of waters which constitute a shared natural resource; and Article X, Relationship between the present articles and other treaties in force. [1980] 2 Y.B. Int'l L. Comm'n, pt. 2, at 110–36. Four of these six articles have counterparts in the present draft. The two that do not are Articles 5 and “X.” Article 5 later proved controversial. Some members feared it would have unforeseen legal effects, while others believed that it did not add anything of substance to the draft. Article X was ultimately considered unnecessary since the principle it set forth would be covered by the normal rules concerning successive treaties on the same subject matter.

11 The report was not submitted until after Judge Schwebel's departure for the Court. Stephen Schwebel, Third Report on the Law of the Non-Navigational Uses of International Watercourses, [1982] 2 Y.B. Int'l L. Comm'n, pt. 1, at 65. In the report, Judge Schwebel acknowledges his debt to Professor Robert Hayton, who had provided assistance in its preparation. The proposals in this report appear themselves to have been influenced to some extent by the Helsinki Rules on the Uses of the Waters of International Rivers adopted by the International Law Association (ILA) in 1966. 52 ILA, Conference Report 484 (1966).

12 [1983] 2 Y.B. Int'l L. Comm'n, pt. 1, at 155.

13 See note 11 supra.

14 [1984] 2 Y.B. Int'l L. Comm'n, pt. 1, at 101.

15 The provisions adopted in 1987 were Articles 2–7. They included the first substantive provisions on watercourses that had been adopted by the Commission: Article 6 (as it was originally numbered) on equitable utilization and participation, and Article 7, enumerating factors relevant to equitable utilization. [1987] 2 Y.B. Int'l L. Comm'n, pt. 2, at 25–38.

16 The ILC at this time had seven substantive topics on its agenda, on all of which the General Assembly had requested that it make significant progress. Major projects of codification and progressive development, such as the watercourses draft, normally take the Commission 10 years or more to complete.

17 See Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 161, UN Doc. A/46/10 (1991), [1991 ] 2 Y.B. Int'l L. Comm'n 66 [hereinafter 1991 ILC Report]. A symposium on the draft articles as adopted on first reading may be found in 3 Colo. J. Int'l Envtl. L. & Pol'y 1 (1992).

18 See The Law of the Non-Navigational Uses of International Watercourses, Comments and Observations Received from States, UN Doc. A/CN.4/447 and Adds. 1,2 and 3 (1993) (containing comments of 21 states). The Commission also had the benefit of the views of states on the draft expressed in the discussion of the ILC Report in the Sixth Committee in 1991.

19 These proposals were contained in Robert Rosenstock's two reports. See Robert Rosenstock, First Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/451 (1993); and idem, Second Report on the Law of the Non-Navigational Uses of International Watercourses, UN Doc. A/CN.4/462 (1994) [hereinafter First Report and Second Report].

20 The articles adopted on first reading were reported on in Current Developments Notes in this Journal on the Commission's 1987–1991 sessions.

21 This requirement was also one of the elements of the definition of “international drainage basin” in Article II of the Helsinki Rules, supra note 11.

22 1991 ILC Report, supra note 17, at 175.

23 The “common terminus” requirement would presumably be satisfied by a delta with multiple “mouths” since virtually all major rivers form deltas and would otherwise be excluded. This construction would accord with the general rule of interpretation of treaties, according to which “the ordinary meaning [is] to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, Art. 31(1). It is also confirmed in the Commission's commentary, which states that the word “normally” is intended to cover, inter alia, rivers that flow into the sea via multiple “distributaries which may be as much as 300 km removed from each other (deltas).” 1994 ILC Report, supra note 7, at 202.

24 1994 ILC Report, supra note 7, at 201.

25 In addition to the phenomenon of deltas discussed in note 23 supra, the Commission's commentary refers to situations in which surface waters “flow to the sea in whole or in part via groundwater … or empty at certain times of the year into lakes and at other times into the sea.” Id. at 202.

26 See, e.g., the comments and observations of Switzerland on the draft articles as adopted on first reading, UN Doc. A/CN.4/447, at 44 (1993); and Stephen C. McCaffrey, The Law of International Watercourses: Some Recent Developments and Unanswered Questions, 17 Denv. J. Int'l L. & Pol'y 505, 508–13 (1989).

27 Since upper riparian states generally develop their water resources later than their downstream neighbors, this would make such development by upstreamers difficult, at best.

28 See the Commission's commentary to Article 7 (numbered Article 8 when initially adopted in 1988), [1988] 2 Y.B. Int'l L. Comm'n, pt. 2 at 36: “[P]rima facie, at least—utilization of an international watercourse … is not equitable if it causes other watercourse States appreciable harm.”

29 The revised text of Article 7 proposed by the new special rapporteur reads as follows:

Watercourse States shall exercise due diligence to utilize an international watercourse in such a way as not to cause significant harm to other watercourse States, absent their agreement, except as may be allowable under an equitable and reasonable use of the watercourse. A use which causes significant harm in the form of pollution shall be presumed to be an inequitable and unreasonable use unless there is: (a) a clear showing of special circumstances indicating a compelling need for ad hoc adjustment; and (b) the absence of any imminent threat to human health and safety.

Rosenstock, First Report, supra note 19, at 10–11. See also idem, Second Report, supra note 19, at 11, which is identical except for the inclusion of transboundary aquifers.

30 See the special rapporteur's proposed redraft of Article 7, supra note 29.

31 The 1994 version replaced “appreciable” with “significant” wherever the former term appeared in the 1991 draft. 1994 ILC Report, supra note 7, at 236.

32 This debate is described in McCaffrey, supra note 26, at 519–25.

33 1994 ILC Report, supra note 7, at 236. Article 6, Factors Relevant to Equitable and Reasonable Utilization, contains a nonexhaustive list of seven factors to be taken into account in implementing the rule of equitable utilization.

34 Id.

35 Id.

36 Id. at 242.

37 See, in particular, paragraph 18 of the Commentary, id. at 243, stating that the “consultations … would include, in addition to the factors relevant in subparagraph (a), such factors as the extent to which adjustments are economically viable” (emphasis added).

38 A change was made at the second-reading stage to encourage an early response by the notified state. See Art. 16(2), id. at 272.

39 Specifically, the notified states must find that the change would violate the notifying state's obligations of equitable utilization (Article 5) or harmless use (Article 7) and must provide the notifying state within six months of the initial notification with a “documented explanation setting forth the reasons for the finding.” Art. 15, id. at 279.

40 Art. 17, id. at 273. The words “if necessary” were added at the second-reading stage because “[s]ome members [of the Commission] saw a distinction between consultations and negotiations.” Commentary to Art. 17, para. 2, id. at 273. Negotiations would only be “necessary” if consultations failed to resolve the matter.

41 It is clear that the Commission did not intend that the notifying state could simply proceed with the implementation of its plans after the expiration of the second six-month period without having engaged in meaningful consultations and negotiations. Such a course of action would violate the notifying state's obligation to consult and negotiate in good faith. See Fisheries Jurisdiction (UK v. Ice.) (Merits), 1974 ICJ REP. 3 (July 25); North Sea Continental Shelf cases (FRG v. Den.; FRG v. Neth.), 1969 ICJ Rep. 3 (Feb. 20); and Lake Lanoux, 12 R.I.A.A. 281 (1957).

42 1994 ILC Report, supra note 7, at 280.

43 Art. 33, id. at 322.

44 See generally The Law of International Groundwater Resources, in 62 ILA, Conference Report 8 (1986); and Rules on International Groundwaters, id. at 21.

45 Rosenstock, Second Report, supra note 19, at 4. The annex is found in id. at 22.

46 Id. at 35.

47 1994 ILC Report, supra note 7, at 326.

48 Id. at 196–97.

49 Draft resolution adopted by the Sixth Committee on November 29, 1994, UN Doc. A/C.6/49/L.27/ Rev.1 (1994).

50 Id., operative para. 3. The resolution was adopted without change by the General Assembly as Resolution 49/52, on December 9, 1994, by a vote of 143 for, 0 against, with 8 abstentions.

51 Rosenstock, First Report, supra note 19, at 4.

52 See note 11 supra.