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Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited

Published online by Cambridge University Press:  09 March 2016

Günther Handl
Günther Handl*
Affiliation:
Yale University
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Extract

By specifying fundamental competences and liabilities, customary international legal principles concerning transnational pollution provide the framework for an approach to and an analysis of international environmental disputes in general. In the legal evaluation of disputes arising from the pollution of international watercourses, this basic function is particularly evident in cases where no binding environmental protection standards of a specific nature may be available as parameters for a decision on the legality of the claims of states concerning the use of a given international watercourse. Conversely, these customary principles also constitute the starting point for the further development of the law relating to the utilization of international watercourses in general and the enactment of concrete water quality standards in particular.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 13 , 1976 , pp. 156 - 194
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1976

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References

1 See Brownlie, , “A Survey of Customary Rules of Environmental Protection,” 13 Natural Resources J. 179 (1973).Google Scholar

2 For use of this term by the I.L.C. in its present work on the codification of the Law of Non-Navigational Uses of International Watercourses, see Report of the I.L.C. on the Work of its Twenty-Sixth Session, U.N. Doc. A/9610, Vol. II, at 369 (1974).

A possible definition, and the one used in this paper is “any watercourse, canal or lake which separates or passes through the territories of two or more states”: Draft European Convention for the Protection of International Watercourses against Pollution, C.E.C.A. 3417, at 3 (1974). Similar also Sevette, Legal Aspects of Hydro-Electric Development of Rivers and Lakes of Common Interest, U.N. Doc. E/ECE/136, at 14 (1952). Cf. in contrast the concept of “international drainage basin” in Art. 2 of the Helsinki Rules, I.L.A. Report on the Fifty-Second Conference, Helsinki, 484, at 484–85 (1966); and Olmstead, , “Introduction,” in The Law of International Drainage Basins 1, at 4 (Garretson, , Hayton, and Olmstead, ed., 1967)Google Scholar; as well as the global concept of “international water resources system” as the foundation of a report of a committee of experts of the Secretariat of the U.N. on “Legal and Institutional Aspects of International Water Resources Development,” reference thereto in Legal Problems Relating to the Non-Navigational Uses of International Water Courses, U.N. Doc. A/CN. 274, Vol. II at 213–14 (1974).

3 In the sense of, for example, “regulated levels of quality of a natural resource or emission rates of pollution prescribed for specific control purposes”: Report of the Preparatory Committee on Pollution Release Limits, U.N. Doc. А/ CONF.48/PC. 9, at 23 (1971).

4 Cf. Handl, , “Territorial Sovereignty and the Problems of Transnational Pollution,” 69 Am. J. Int’l L. 50, at 53–54 (1975).CrossRefGoogle Scholar

5 See Report of the Sub-Committee on the Law of the Non-Navigable Uses of International Watercourses, in Report of the I.L.C, supra note 2, at 372; and Report of the I.L.C. on the Work of its Twenty-Seventh Session, U.N. Doc. A/10010, 363, para. 138 (1975).

6 See infra note 23.

7 Report of the Sub-Committee, supra note 5, at 381, para. 33.

8 In contrast to a synonymous use of the terms “responsibility” and “liability” in past international practice, there is some evidence of a recent trend towards a distinction between these two terms in that “liability” is employed to denote the legal relationship arising between polluting state and victim state, as a consequence of the occurrence of environmental damage. “Responsibility,” on the other hand, seems to be used to denote a “primary obligation” of a state to abide by, or ensure compliance with, international standards or principles concerning environmental protection: see the Stockholm Declaration, infra text at footnotes 11–12; and Art. 41 of the Single Negotiating Text on Preservation of the Marine Environment, adopted by the Third Committee, Third U.N. Conference on the Law of the Sea, U.N. Doc. A/CONF.6a/WP.8/part III, 13 (1975).

However, as neither at Stockholm nor as yet at the Third Law of the Sea Conference an exact delimitation of the two terms and their contents has been achieved, this paper does not attempt to reflect the above indicated distinction.

9 This notion denotes extraterritorial effects on the environment proper as well as the effects of air or water pollution which, strictly speaking, may not be described in ecological or environmental terms.

10 U.N. Doc. A/CONF.48/14, at 4–7 (1972); hereafter referred to as “Stockholm Declaration.”

11 Ibid., 7.

12 Ibid.

13 [1949] I.C.J. Rep.1, at 22.

14 [1971 ] I.C.J. Rep. 12, at 54, para. 118.

15 Cf. in this context the Canadian claims for compensation by the United States for the pollution by oil of Canadian waters that originated from a Liberian oil tanker at Cherry Point, Washington: New York Times, June 10, 1973, 36, col. 5. See also the statement in a House of Commons debate by the Canadian Secretary of State for External Affairs with regard to the applicability of this principle to the Cherry Point Oil spill: 11 Canadian Yearbook of International Law 333, at 334 (1973). For the classic statement by the Trail Smelter tribunal, see text infra at footnote 50.

16 This is true also in a case of “strict liability,” even though it might be argued that in this instance attention is focused on the deed or results, rather than on the doing that produces it. For the latter approach, see, for example, Dias, , “Remoteness of Liability and Legal Policy,” 20 Camb. L.J. 178, at 193 (1962).CrossRefGoogle Scholar For a more realistic view, see Prosser, , Law of Torts 513 (4th ed. 1971)Google Scholar; Fleming, , The Law of Torts 282–84 (4th ed. 1971)Google Scholar; and cf., for example, MacKenna J. in Mason v. Levy Auto Parts of England, Ltd., [1967] 2 Q.B. 530; and Section 520 of Restatement, Second, Torts (Tent. Draft No. 10), 56 (1964).

17 “Proximate cause” as used here refers only to the “but for” test as a means for establishing causation in fact, that is, remoteness of damage and not as a tool for ascertaining liability.

For a detailed discussion — in particular in the context of The Wagon Mound and Rylands v. Fletcher cases — of the use of this notion for both the above purposes in tort situations in general, see Winfield, and Jolowicz, , The Law of Tort 88–100 and 387–88 (9th ed. 1971).Google Scholar For a reduction of this notion to its relevant basic component elements, see Street, , Foundations of Legal Liability 110 (1906).Google Scholar

For a very comprehensive review of the notion of proximate cause in international law, see 3 Whiteman, , Damages in International Law, 1766–1835 (1943).Google Scholar

18 GAOR, Twenty-Seventh Session, Supplement No. 30, 42.

19 U.N. Doc. A/CONF.48/PG. 12, Annex II, at 15, para. 65.

20 Cf. in this context the discussion of the Stockholm Declaration within the Second Committee: for example, Scott, U.N. Doc. A/C.2/SR. 1472, at 15 (1972); and Hardy, U.N. Doc. A/C.2/SR. 1469, at 14 (1972).

21 See Ago in his capacity as rapporteur on the topic of state responsibility: Third Report on State Responsibility, U.N. Doc. A/CN.4/246 and Add. 1-3; [1971 ] I.L.C. Yearbook (Vol. II, Part 1), 200, para. 5; and Report of the I.L.C, supra note 2, at 296–97, para. 109.

22 For “[i]t is its duty which … [the rule’s addressee] fails to carry out and not the principle of objective law from which that duty flows”: Ago, supra note 21, at 214, para. 51.

The situation described is one in which the conduct concerned is unlawful per se, as the readily ascertainable contrarius actus in itself, without regard to its consequences, provides prima facie evidence of the existence of an internationally wrongful act.

23 See, for example, Development of an International Environmental Law — An Appraisal, in Law, Institutions and the Global Environment 104, at 131 (Hargrove, ed. 1972).Google Scholar Kelson, Similar, “State Responsibility and the Abnormally Dangerous Activity,” 13 Harv. Int’l L.J. 197, at 235–37 (1972)Google Scholar; and Schneider, , “State Responsibility for Environmental Protection and Preservation: Ecological Unities and a Fragmented World Public Order,” 2 Yale Studies in World Public Order (1975).Google Scholar More cautious in this respect McDougal, , “Legal Bases for Securing the Integrity of the Earth-Space Environment,” in Environment and Society in Transition, 184 Annals of the New York Academy of Sciences 375, at 388 (1971).Google Scholar Hardy, Contrary, “Nuclear Liability: The General Principles of Law and Further Proposals,” 26 Brit. YB Int’l L. Google Scholar

24 For an excellent illustration of this point, see the deliberation of Garcia-Amador’s Second Report on State Responsibility within the I.L.C.: [1957] I.L.C. Yearbook (Vol. I) 154–72.

25 Thus in the context of “fault” in the Corfu Channel case, he speaks of “malevolence or neglect”: Goldie, supra note 23, at 132.

26 “… this writer would distinguish between … [strict and absolute liability] and accept … [the] … view that in the Rylands v. Fletcher type of case such terms as ‘strict liability’ and ‘liability without fault’ are preferable …”: ibid., 133. A decisive criterion in Rylands v. Fletcher (1868), L.R. 3 H.L. 330, namely that of “non-natural user” is closely associated with a notion of danger: “It must be some special use bringing with it increased dangers to others”: Lord Moulton, in Rickards v. Lothian [1913] A.C. 263, at 279–80.

For the above equation, cf. two further articles by Goldie, , “Liability for Damage and Progressive Development of International Law,” 14 Int’l & Comp. L.Q. 1189, at 1231 (1965)CrossRefGoogle Scholar; and “International Principles of Responsibility for Pollution,” 9 Columbia J. Transnat’l L. 283, at 306–10 (1970).

27 An example of treaty-stipulated state responsibility is liability for damage caused by space objects: see Arts. II and IV, para. 1 (a), of the related Convention, 10 Int’l Leg. Mat. 965, at 966 (1971).

28 Cf. in particular Starke, , “Imputability in International Delinquencies,” 19 Brit. Y.B. Int’l L. 104 (1938).Google Scholar “The theory of imputability … is inconsistent with any general condition of the presence of malice or culpable negligence.... Whether a mental element is added [to a simple failure to fulfil an international obligation] or not would appear to depend simply on the specific rule of international law which is claimed to be applicable to the case under examination. But to add a general floating requirement of malice or culpable negligence seems to contradict the scientific and practical considerations which underlie the law of international delinquencies”: ibid., 114; Anzilotti, , Corso di Diritto Internazionale (Vol. 1), 409–10 (4th ed. 1955)Google Scholar: “La conclusion a cui sembra si possa arrivare è dunque che, di regola, nel diritto internazionale l’animus dell’individuo-organo non è causa o condizione della responsabilità; questa nasce dal solo fatto della violazione dello Stato”; and de Arechaga, , “International Responsibility,” in Manual of Public International Law 531, at 534–35 (Sorensen, , ed., 1968).Google Scholar

29 This is the exact equivalent of the I.L.C.’s notion of the internationally wrongful act: “There is an internationally wrongful act of a State when: (a) conduct consisting of an action or omission is attributable to the State under international law; and (b) that conduct constitutes a breach of an international obligation of the State”: Draft Art. 3 on State Responsibility, in Report of the I.L.C, supra note 2, at 306.

30 Thus also Kuhn, , Verschuldens- oder Verursachungshaftung der Staaten im allgemeinen Völkerrecht 60 (1961).Google Scholar

31 Levy, , “La responsabilité pour omission et la responsabilité pour risque en droit international public,” 65 RGDI 744, at 748 (1961).Google Scholar

32 Supra note 23.

33 See supra note 13, at 12.

34 Ibid., 15.

35 Ibid., 18.

36 Ibid., 17–18.

37 Ibid., 18–22.

38 Ibid., 28.

39 Ibid.

40 Ibid., 23.

41 A more detailed discussion of the element of “fault” would by far exceed the limits of this inquiry. It suffices here to point out a remarkable review of the complexity of this question by Rossen, , Studien zur Schuldhaftung und Erfolgshaftung im völkerrechtlichen Deliktsrecht (1963).Google Scholar

42 Thus, for example, Hostie, , “The Corfu Channel Case and International Liability of States,” in Liber Amicorum of Congratulations for Algot Bagge 89, at 92 (1964)Google Scholar; Oppenheim, , International Law 343 (8th ed. Lauterpacht, , 1955)Google Scholar; and Verdross, , Völkerrecht 378 (5th ed. 1964).Google Scholar

43 Cf. Rossen, supra note 41, at 141–42.

44 See supra note 13, at 22–23.

45 See de Arechaga, supra note 28, at 537; Levy, supra note 31, at 747; and Brownlie, , Principles of Public International Law 426 (2nd ed. 1973).Google Scholar

46 3 U.N.R.I.A.A. 1905.

47 Art. III of the compromis, ibid., 1908.

48 Cf. the preamble and Art. I of the compromis, ibid., 1907. Cf. further the Note of February 17, 1934, of the Canadian Secretary of State for External Affairs to the American Minister in Ottawa, [1934] Foreign Relations of the United States (Vol. I), 898, at 899-900; and Note of November 17, 1934, of the Canadian Prime Minister to the United States Under-Secretary of State, ibid., 958, at 961.

49 Art. IV of the compromis, supra note 46, at 1908.

50 Supra note 46, at 1965.

51 is U.N.R.I.A.A. 281.

52 Cf. Art. 1 of the compromis, ibid. 286.

53 Ibid., 289.

54 Decision, Ibid., 303.

55 Ibid.; English translation taken from 24 Int’l L. Rep., 101, at 123 (1957).

56 24 Int’l L. Rep. 101, at 124.

57 Ibid., 133.

58 With regard to recognition of consistent provisions in international treaties as expression of state practice significant from an international legal point-of-view, cf. the PGIJ in the Wimbledon case, P.G.I.J., Ser. A, No. 1, 25. (1923). For a list of such agreements, see U.N. Doc. ST/LEG/SER.B/12 (1963); U.N. Doc. A/5409 (1964); and U.N. Doc. A/CN-4/a74 (Vol. I), 78–183 (1974).

59 A formulation representative of a majority of these treaties is to be found in Art. X, para. 1, of the Helsinki Rules, supra note 2, at 496-97. For the text, see infra 183.

For an exception in this respect, see the water quality objectives laid down in the 1972 Great Lakes Water Quality Agreement between the United States and Canada: 11 Int’l Leg. Mat. 694, at 695 and 700–04 (1972).

60 Baxter, , “International Cooperation to Curb Fluvial and Maritime Pollution,” in International and Interstate Regulation of Water Pollution, 75 Proceed-ings of a Conference held at Columbia University School of Law, March 12–13, 1970.Google Scholar

61 Thus Art. X of the Helsinki Rules, supra note 59.

62 See Handl, supra note 4, at 72. A contrary view was advanced by Australia in the Nuclear Tests cases, in that the deposit and dispersion of pollutants on Australian territory and in its airspace were made the basis of a claim of a violation of sovereignty: Application 28, para. 49.

63 A typical formulation of this element can be found in Art. 47 of the 1973 Rio Plata Treaty between Uruguay and Argentina. While Art. 51 provides for liability of the contracting parties for damage due to water pollution, “pollution” itself is defined in Art. 47 as “the direct or indirect introduction by man into the aquatic environment, of matter or energy which may cause noxious effects”: 13 Int’l Leg. Mat. 251, at 254 (1974).

64 See supra note 46, at 1924–33.

65 Rubin, , “Pollution by Analogy: The Trail Smelter Arbitration,” 50 Oregon L. Rev. 259, at 277 (1971).Google Scholar

66 A further reason for the Mexican note was the alleged pollution of the Rio Grande by the dumping of offal into the river: Note to the U.S. Under-Secretary of State, cited in 6 Whiteman, , Digest of International Law 258 (1968).Google Scholar

67 Boundary Water Treaty of 1909 between the United States and Great Britain, U.S.T.S. No. 548.

68 Report of the IJG on the Pollution of Rainy River and Lake of the Woods 16 (1965).

69 Thus, for example, Art. 16, para, I of the 1963 Treaty between Hungary and Rumania concerning the Regime of State Frontier and Co-operation in Frontier Waters stipulates: “The Contracting Parties shall ensure that frontier waters are kept in good condition …”: 576 U.N.T.S. 330. Or: “The Contracting Parties shall take the measures necessary to secure the unpolluted state of the waters of the Moselle and its tributaries”: Art. 55 of the 1956 Treaty between Germany, France, and Luxemburg on the Opening to Navigation of the Moselle, BGBL 1956 II, 1838 (translation provided).

70 Cf. Report of the IJC supra note 68, at 17: “Objectives designed to alleviate pollution in a specific stream or body of water are not necessarily applicable to other water courses where the conditions may be quite different”; and Berber, , Rivers in International Law 156 (1959).Google Scholar

71 See Bourne, , “International Law and Pollution of International Rivers and Lakes,” 21 U. Toronto L.J. 193, at 194 (1971)CrossRefGoogle Scholar; also in 6 Univ. of Brit. Colum. L.R. 115 at 117.

72 Trail Smelter decision, supra note 46, at 1965.

73 See supra note 61.

74 Peyton Packing Co. and Casuco Company case, supra note 66.

75 Cf., for example, Art. 58, paras. 1 and 2 (e) of the 1960 Boundary Treaty between Germany and the Netherlands, in U.N. Doc. ST/LEG/SER.B/i 2, at 757–58 (1963); Art. 2 of the 1964 Agreement on Co-operation in the Utilization of Boundary Waters between Bulgaria and Greece, in U.N. Doc. A/CN.4/274 (Vol. I), 155; or Art. 4 of the Acta de Santiago sobre Cuencas Hidrográficas of 1971 between Argentina and Chile, in Riós y Lagos Inter-nacionales (Utilización para Fines Agrícolas e Industriales), OEA/Docu-mentos Oficiales, OEA/Ser. 1/VI, CIJ-75 rev. a, 495, at 496 (1971).

76 Cf. Art. 2 of Resolution No. 25 of the Declaración de Asunción sobre Aprovechamiento de Riós Internacionales, in Riós y Lagos, supra note 75, at 187.

77 Cf. Art. X of the Helsinki Rules, supra note 2, at 497-98; proposition VIII, para, I, of draft propositions of the Asian-African Legal Consultative Com-mittee, in U.N. Doc. A/CN.4/274 (Vol. I), 226, at 229 (1974); Art. 5 of the Inter-American Draft Convention on Industrial and Agricultural Use of International Rivers and Lakes, OAS Official Records, OEA/Ser. i/VI.a (English) CIJ-79, 19 (1965); Sevette, supra note a, at an; para. 10 of the preamble and Art. a of the 1969 Draft European Convention on the Protection of Fresh Water against Pollution, C.E.C.A. Doc. 2561, 2, at 3 and 4–5 (1969); Art. I (on rivers constituting international boundaries) of the Madrid Resolution of the Institute of International Law: 24 Annuaire Institut Droit Int. 365–66 (1911). As to the Salzburg Resolution of the Institute, see infra; and cf. in this context Bastid, Annex II to the Draft Resolution on the utilization of international watercourses, in 48 Annuaire Institut Droit Int. (Vol. I), 270, at 275; and Wright, ibid., 314.

78 Cf. Koutikov, , Quelques aspects de l’évolution récente du droit fluvial international en Europe 9, at 31 (1967),Google Scholar Report submitted to a 1966 Carnegie Foundation for International Peace Conference in Lanogissi; Sauser-Hall, , “L’utilisation industrielle des fleuves internationaux,” 83 Recueil des Cours 465, at 556–58 (1953)Google Scholar; Dintelmann, , Die Verunreinigung internationaler Binnengewässer insbesondere in Westeuropa, aus der Sicht des Völkerrechts 29 (1965)Google Scholar; Manner, , “Water Pollution im International Law,” in Conference on Water Pollution Problems in Europe, U.N. Doc. E/ECE/WATER POLL./CONF. 12, at 21 (1961)Google Scholar; Smith, , The Economic Uses of International Rivers 151 (1931)Google Scholar; Andrassy, , “L’Utilisation des eaux des bassins fluviaux internationaux,” 16 Revue Egyptienne de Droit International 23, at 3–35 (1960)Google Scholar; Gaja, , “Rivo Pollution in International Law,” in Protection of the Environment and International Law, Hague Academy Colloquium 1973, at 353, 370 (Kiss, ed., 1975)Google Scholar; Baxter, supra note 60; Lester, , “River Pollution in International Law,” 57 Am. J. Int’l L. 828, at 851 (1963)CrossRefGoogle Scholar; de Arechaga, , “International Legal Rules Governing the Use of Waters of International Water Courses,” 2 Inter-American L.Rev. 329, at 332 (1960)Google Scholar; Brownlie, supra note I, at 180; and particularly Bourne, , “The Right to Utilize the Waters of International Rivers,” 3 Canadian Yearbook of International Law 187, at 208–13 (1965).Google Scholar

For what is clearly a minority view, see Kolb, : “international law treats as unlawful any immissions into the territory of a foreign State”: U.N. Doc. E/ECE/WATER POLL./CONF. 18, at 3.Google Scholar

79 Undoubtedly, “[t]here is … a conceptual relationship between the right to maintain territory in its state of wholesomeness and the right to maintain the natural environment within that territory in a state of wholesomeness”: Report of the Rapporteur of the Intergovernmental Working Group, supra note 19, at 15, para. 60. However, a warning of too close an identification of the concepts of sovereignty and of environment, “the contents and limits of which [are] not clearly established” (ibid., para. 64) is appropriate: cf. also Lipper, , “Equitable Utilization,” in International Drainage Basins, supra note 2, at 20.Google Scholar

80 Jenks, , “Liability for Ultrahazardous Activities in International Law,” 117 Recueil des Cours 99, at 126 (1966).Google Scholar

81 For the notion of “standard”, cf. supra note 3; and generally, Contini, and Sand, , “Methods to Expedite Environmental Protection: International Eco-Standards,” 66 AM. J. Int’l L. 37 (1972).CrossRefGoogle Scholar

82 For the notion of conduct “lawful per se,” see supra note 22.

83 Cf. Ward, and Dubos, , Only One Earth, in particular at 30 (1972)Google Scholar; Falk, , “Environmental Policy as a World Order Problem,” 12 Natural Res. J. 161, at 162–66 (1972)Google Scholar; and McDougal, and Schneider, , “The Protection of the Environment and World Public Order: Some Recent Developments,” 45 Mississippi L.J. 1085, at 1085–86 (1974).Google Scholar

84 For the unity of “drainage basin” concept, see the references supra note 2; and Bourne, , “Canada and the Law of International Drainage Basins,” in Canadian Perspectives on International Law and Organization 468, at 477–79 (Macdonald, , Morris, , Johnstone, eds., 1974).Google Scholar

85 American Law Institute, Restatement, Second, Torts (Tent. Draft No. 17, 1971 ). “The very existence of organized society depends upon the principle of ‘give and take, live and let live’ and therefore the law of torts does not attempt to impose liability or shift the loss in every case where one person’s conduct has some detrimental effect on another”: ibid., 27.

86 These necessarily result from improved knowledge, owing to new scientific discoveries, of the functioning of ecological systems and their interdependence, as well as from a better understanding of the impact of man’s actual or planned utilization of natural resources on the stability of these systems. Cf. also Falk, supra note 83.

87 In contrast to conduct unlawful per se, conduct in this situation is best characterized as the exercise of a prima facie right. According to the circumstances of the given situation, this presumption will either be corroborated, repudiated, or changed as to its scope as the consequence of a contextual analysis. This use of terminology offers a way around the inherent logical difficulties with the notion of “abuse of right.”

88 Oppenheim, supra note 42, at 345.

89 If such standards were, however, available, an inquiry into the “reasonableness” of the activity concerned would obviously be superfluous for the present purpose.

90 See Jordan, , “Recent Developments in International Environmental Pollution Control,” 15 McGill L.J. 279, at 289 (1969).Google Scholar

91 Supra note 46, at 1950.

92 Ibid., 1929.

93 Ibid., 1938–39.

94 Ibid., 1934.

95 See Prosser, supra note 16, at 574.

93 Art. IV of the compromis, supra note 46, at 1908; and the decision, ibid. 1939.

97 Bleicher, , “An Overview of Environmental Regulation,” 2 Ecology L. Quarterly 1, at 28 (1972).Google Scholar

98 See supra text at notes 82 and 22.

99 Supra note 13, at 35.

100 24 Int’l L. Rep. 101, at 124 (1957).

101 por an “abuse of right” presents itself as a situation in which “there [is] … no clearly defined interaction of rights and obligations and the rights remain undivided in the law. Disputes in such cases [can] … only be decided on the basis of a reasonable balance between the interests of the parties”: Tammes, [1970] I.L.C. Yearbook (Vol. I), 185, para. 40.

102 Supra note 97.

103 Rubinj supra note 65, at 269; and cf. Sauser-Hall, supra note 78, at 472.

104 Entscheidungen des Schweizerischen Bundesgerichtes, A.S. 26, I. Nr.83, 444 (1900).

105 Ibid., 450.

106 Translation by Schindler, , “The Administration of Justice in the Swiss Federal Court in International Disputes,” 15 Am. J. Int’l L. 149, at 173 (1921).CrossRefGoogle Scholar

107 Entscheidung des Staatsgerichtshofs vom 17./18. Juni 1927, in 116 Entscheidungen des Reichsgerichts in Zivilsachen, Anhang 8. Excerpts of the text of the decision in English in 4 A.D. 128 (1927–28).

108 Ibid., 29–30.

109 Ibid., 31–33. (Translation provided).

110 Namely on Kansas v. Colorado, 185 U.S. 125 (1903); Missouri v. Illinois, 200 U.S. 496 (1906); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); and 237 U.S. 474 (1915); New York v. New Jersey, 256 U.S. 296 (1921); and New Jersey v. New York, 283 U.S. 473 (1931): see supra note 46, at 1964–65.

111 “Before this court can be moved to exercise its extraordinary powers under the Constitution to control the conduct of one state at the suit of another, the threatened invasion of rights must be established by clear and convincing evidence”: Supreme Court in Missouri v. Illinois, supra note no, at 496. Similar in North Dakota v. Minnesota, 263 U.S. 365, at 374 (1923).

112 For example, in Missouri v. Illinois, 180 U.S. 208 (1901); Wyoming v. Colorado, 259 U.S. 419 (1933); Connecticut v. Massachusetts, 382 U.S. 660 (1931); Colorado v. Kansas, 320 U.S. 383 (1943); Nebraska v. Wyoming, 325 U.S. 589 (1945); Arizona v. California, 373 U.S. 546 (1963).

113 Cf. in particular Bains, , “The Diversion of International Rivers,” 1 Indian J. Int’l L. 38, at 45 (1960–61)Google Scholar; and Berber, supra note 70, at 176, who says that in domestic legal disputes decisions are handed down in accordance with law and equity, whereas in international law — without express authorization by the parties — decisions are based on law only. This criticism fails, however, to take cognizance of the fact that considerations of equity are necessarily included in every application of the law: see infra and Friedman, , “The North Sea Continental Shelf cases — A Critique,” 64 Am. J. Int’l L. 229, at 234–35 (1970).CrossRefGoogle Scholar

114 See Art. 3 of the 1966 Agreement regulating the Withdrawal of Water from Lake Constance, 620 U.N.T.S. 198; and section I, Arts. 3 and 4 of the 1971 Frontier Rivers Agreement between Finland and Sweden, in U.N. Doc. A/CN.4/274 (Vol. I), 167.

115 Note the fact of such recognition of the Helsinki Rules by Argentina: see I.L.A., Report of the Fifty-Fourth Conference, The Hague, 922 (1970). For an advocacy of a more critical view of the legal status of the Helsinki Rules, see Michael, , “The Allocation of Waters of International Rivers,” 7 Natural Res. Lawyer 45, at 65 (1974).Google Scholar

116 As to the concept of general damage, cf. comment (b) on Art. X, supra note 2, at 499; and see also supra note 9.

117 Supra note 2, at 496–97.

118 Cf. in this context the decision of the Permanent Court of International Justice in the Chorzow case: P.C.I.J., Ser. A, No. 17, at 29 (1928).

119 An exception in this respect may arise in case of conduct inconsistent with para, (b) of Art. X in a situation in which existing pollution constitutes a threat to human life, as the stipulated obligation to abate existing pollution becomes an absolute duty in these circumstances: see comment (e) on Art. X, supra note 2, at 501.

120 Ibid.

121 Thus comment (a) to Art. IV, ibid., 487.

122 Comment (b) on Art. X, ibid., 499.

123 Comment (c) on Art. X, ibid., 500. 12* ibid.

125 Ibid., 486. A further express reference to the principle of balancing of interests can be found in Art. VIII, para. 1, Ibid. 493. Art. IV seems to lay down a further qualification — additional to the requirements of “reasonableness” — for the lawfulness of a given utilization, namely “beneficial use”: Ibid. However, it appears that the requirement of “beneficial use” is merely one aspect of the notion of “reasonable use”; as to criteria of “reasonableness”, see infra 187–92.

126 49 Annuaire Institut Droit Int. (Vol. II), 381 (1961).

127 Ibid., 382.

128 Ibid.

129 Cf. only the criticism of the text by, for example, De La Pradelle, ibid., 136; Rolin, ibid., 141; similar Fitzmaurice, ibid., 144; and Waldock, ibid., 145.

130 Cf. Art. 8 against the background of the applicable Arts. 2–4.

131 Andrassy in his capacity as rapporteur, in the preliminary report on “Interdiction de causer des dommages”: 48 Annuaire Institute Droit Int. (Vol. I), 187 (1959).

132 Cited in U.N. Doc. A/CN.4/274 (Vol. II), 226 (1974).

133 Based on proposition VIII in accordance with proposition IX, ibid., 229–30.

134 Ibid., 230.

135 Ibid., 228–29.

136 See Introduction to the Report of the Committee on the Use of the Waters of International Rivers (I.L.A.), supra note 2, at 480; and Andrassy at the plenary session of the Institute of International Law, 49 Annuaire Institut Droit Int. (Vol. II), 91 (1961).

137 For by contrast to the process of ascertaining the applicability of the principle of balancing as such, insofar as the establishment of specific basic criteria are concerned, recourse to quasi-international decisions would be entirely meaningless in view of — in this context — the extremely relevant différencies between national and international societies.

138 Supra note 2, at 487.

139 Ibid., 488.

140 Ibid. Proposition III of the Asian-African Consultative Committee lists quite similar criteria: see supra note 132, at 228. Cf. also the criteria enum-erated by Griffin, Legal Aspects of the Use of Systems of International Waters with Reference to Columbia-Kootenay River System under Customary International Law and the Treaty of 1900, Sen. Doc. 118, 85th Cong. 2nd Sess. 90 (1958); and the respective comment by Rabasa, , El Problema de la Salinidad de las Aguas entregadas a Mexico en el Rio Grande 119 (1968).Google Scholar On closer analysis it becomes apparent that factor (k) is tautolog-ous. For if this factor is one of the parameters for “reasonable use” and the above assumption that “substantial damage” has to be equated with “damage due to unreasonable use” is correct, then factor (k) suggests that “reasonable use” is, inter alia, to be determined by reference to the unavoidability of “unreasonable use.” The same logical problem arises with proposition III, para. 3(b), of the Asian-African Consultative Committee, supra.

141 Cf. in this context the examination, on the basis of these criteria, of the reasonableness of utilization affecting the quantity of waters in the dispute between India and (former) East Pakistan over the Ganges River: Külz, , “Further Water Disputes between India and Pakistan,” 18 Int’l & Comp. L.Q. 718, at 728–31 (1969).CrossRefGoogle Scholar

142 Utton, , “International Water Quality Law,” 13 Natural Res. J. 282, at 299 (1973).Google Scholar

143 Cf. Art. 5 of the Statute of the Mixed Commission on Boundary Waters, Annex to the 1967 Treaty on the Regulation of Frontier Waters between Austria and Czechoslovakia, 728 U.N.T.S. 313; or even the powers of the IJC under Art. IV of the 1972 Great Lakes Water Quality Agreement, supra note 59, at 697–98.

144 (United Kingdom of Great Britain and Northern Ireland v. Iceland), Judgment of 25 July 1974, [1974] L.C.J. Rep. 3; and (Federal Republic of Germany v. Iceland), Judgment of the same date, ibid., 175. Henceforth reference will be made only to the former case.

145 Ibid., 26, para. 59 and 28-29, paras. 63-66. The dispute arose over conflicting claims based, on the one hand, on the freedom of the high seas and the corresponding freedom of fishing subject to reasonable regard for other protected uses of the high seas, and, on the other hand, the principle of preferential treatment of coastal states in a state of special dependence on offshore fisheries: see ibid., 22–27, paras 50-60. For a further analysis, see Churchill, , “The Fisheries Jurisdiction Cases: The Contribution of the International Court of Justice to the Debate on Coastal States’ Fisheries Rights,” 24 Int’l & Comp. L.Q. 82 (1975).CrossRefGoogle Scholar

146 Supra note 144, at 29, para. 66.

147 Ibid., 30, para. 70.

148 See ibid., 32, para. 75.

149 Ibid.

150 See ibid., 34, para. 79(4).

151 Indeed, the basic question is whether the Court’s restrictive view of its function in cases of fairly unspecific legal premises is really appropriate. Even a tentative examination of this question is, however, well beyond the scope of the present inquiry.

152 por the application of the doctrine “is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles …”: thus, in a similar context, with regard to the method of delimitation of the continental shelf, the ICJ in the North Sea Continental Shelf cases: [1969] I.C.J. Rep. 1, at 48, para. 85.

153 Cf. Witaschek, , “International Control of River Water Pollution,” 2 Denver J. Int’l L. … Policy 35, at 51 (1972)Google Scholar; and Dickstein, , “International Lake and River Pollution Control: Questions of Method,” 12 Columbia J. Transnat’l L. 487 (1973).Google Scholar

164 “The Use of Waters of International Rivers,” 33 Can. Bar Rev. 1018, at 107 (1955).

155 Cf. Bourne, supra note 84, at 486.

156 Cf. references supra note 81. Note also in this context the re-postulation of a “zero discharge” goal with regard to water pollutants, at a recent U.S. national conference on water resource policies, New York Times, April 25, 1975, 7, col. 1.

157 For an affirmation of this approach, see “Some Principles concerning Transfrontier Pollution”, drawn up as a recommendation of the Council of OECD, in OECD Doc. C (74), 224, 2–4.

158 For such a view of liability in municipal law, see the inspiring treatise by Wilburg, , Die Elemente des Schadensrechts (1941).Google Scholar

159 por a definition, see, for example, ibid., 3; and supra note 63.

160 Cf. supra note 9.

161 For the theoretical basis of such a claim, see Handl, supra note 4, at note 161.

162 Cf. in this context the Nuclear Tests cases, in which Australia alleged exposure of its population to psychological stress as a result of French atmospheric nuclear testing in the South Pacific: Application 26, para. 47. In the context of the utilization of international watercourses, a similar situation is conceivable in consequence of a pollution by carcinogenic industrial waste elements, of a watercourse serving as a principal source of drinking water.

163 Whether under general international law non-treaty stipulated responsibility for risk regimes might be applicable to abnormally dangerous activities with a transnational impact potential, cannot be answered here; this question would call for an entirely separate study.

164 Primary liability is probably incurred by the operator of a nuclear reactor: see Art. II, paras, 1 and 5 of the Vienna Convention on Civil Liability for Nuclear Damage, 2 Int’l Leg. Mat. 727, at 730–32 (1963); cf., however, the reservation clause of Art. XVIII, ibid., 742; further Arts. 3–4 of the OECD Convention on Third Party Liability in the Field of Nuclear Activity, 55 Am. J. Int’l L. 1082, at 1084 (1961), and the corresponding reservation clause in Annex II, ibid., 1094. As to the analogous case of oil pollution, cf. also the Canadian claims in the Cherry Point incident, supra note 15.