Abstract
The United Nations’ XXV General Assembly adopted, on 8 December 1970, a resolution on the “Progressive development and codification of the rules of international law relating to international watercourses.” 1 This was the first formal General Assembly action in this field since 1959, when it was resolved that preliminary studies should be made of the legal problems relating to the utilization and use of international rivers.2 The XXV General Assembly’s recent Resolution notes that water “is of growing concern to humanity, that the available fresh water resources of the world are limited and that the preservation and protection of those resources are of great importance to all nations.” It goes on to point out that “the use of international rivers and lakes is still based in part on general principles and rules of customary law, despite the great number of bilateral treaties and other regional regulations, as well as the Convention on the Regime of Navigable Waterways of International Concern, signed at Barcelona on 20 April 1921, and the Convention relating to the Development of Hydraulic Power affecting more than one State, signed at Geneva on 9 December 1923.”3 This felt need for a firmer legal base in the field of international non-maritime water reflects the growing awareness of serious immediate and prospective problems in the supply and regulation of this essential, ubiquitous compound.
Many of the general formulations contained in this paper are the product of the author’s work as Technical Director of the United Nations Panel of Experts on the Legal and Institutional Implications of International Water Resources Development and may be found in more extended fashion in the Report of that Panel, in preparation. Acknowledgment is made of the invaluable intellectual stimulation and experience provided the author by each Member of the Panel and by the staff experts of the United Nations. However, the author makes no claim that the views here expressed are those of the Panel or of the Secretariat. Grateful acknowledgment is also made of the invaluable research assistance on this topic over an extended period of time by Miss Ksenia Horoshak.
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References
U.N. Doc. No. A/RES/2669 (XXV), 4 January 1971. See also the Report of the Sixth Committee, U.N. Doc. No. A/8202.
U.N. Doc. No. A/RES/1401 (XIV), 21 November 1959. The result, a report prepared by the Secretariat, was published on 15 April 1963, U.N. Doc. No. A/5409.
The Resolution’s main purpose is to stimulate the International Law Commission to undertake without further delay the study of the law of non-navigational uses, with a view to its progressive development and codification.
See E. Hartig, Ein neuer Ausgangspunkt für internationale w asser rechtliche Regelungen: das Kohaerenzprinzip, Wasser-und Energiewirtschaft, 50:1-2 (Zurich, 1958).
Inter-American Bar Association, 10th Conference, Buenos Aires, 1957. Resolution adopted, together with papers submitted to the Association (Washington, 1958).
Institute of International Law. Resolutions adopted at the Salzburg Session, September 4-13, 1961 (Geneva, 1962).
International Law Association, Helsinki Rules on the Uses of the Waters of International Rivers, Adopted … at the 52nd Conference held in Helsinki on 20th August, 1966 (London, 1967); A. H. Garretson, R. D. Hayton, and C. I. Olmstead, eds., The Law of International Drainage Basins (1967), Appendix A.
See L. A. Teclaff, The River Basin in History and Law (1967); C. B. Bourne, The Development of International Water Resources: The “Drainage Basin Approach,” 47 Can. B. Rev. 62(1969).
This problem was considered in a paper presented at the International Conference on Water for Peace, Washington, D.C., 23–31 May 1967 (see: R. J. Moses and J. N. Corbridge, Jr., Legal Structures for International Supervision of Weather Modification Techniques, 2 Water for Peace 410). See also H. J. Taubenfeld, ed., Controlling the Weather, A Study of Law and Regulatory Processes (1970).
Icebergs as a fresh water source was recently studied by Dr. William Campbell of the Department of Interior’s Geological Survey and Dr. Wilford Weeks of the Army’s Cold Regions Research and Engineering Laboratory. According to the New York Times of 18 March 1970, the two U.S. scientists estimated that if an iceberg 250-yards thick and 2,700-yards across was towed to Australia [from Antarctica] it would provide 207 billion gallons of water — even though 70 per cent of the iceberg would melt during the trip.
UN, Dept. of Economic and Social Affairs, Integrated River Basin Development, rev. ed., 1970 (U.N. Doc. No. E/3066/Rev. 1); G. Cano, Legal and Institutional Problems of Multinational Water Development Schemes in Latin America and the Caribbean (working paper prepared for the UNITAR Regional Seminar in International Law, Quito, Ecuador, January 1969).
Article III of the Helsinki Rules defines a basin state as “a state the territory of which includes a portion of an international drainage basin.”
The Inter-American Bar Association adopted the system approach in its 1957 Resolution, supra note 5, employing the terminology “system of international waters;” “international river system” had often been employed in earlier literature.
See Trail Smelter Arbitration (United States-Canada), 1941, 3. U.N. Rep. Int’l Arb. Awards 1905 (1949), 35 Am. J. Int’l L. 684 (1941) and the commentary (unofficial) to Article X of the Helsinki Rules, supra note 7.
Although tangential to the focus of this paper, it should be noted in this connection that the several Western Hemisphere countries which are organized on the federal principle have had considerable experience with legal regimes for water resources development and administration at the inter-state or inter-provincial level. This experience, including the creation and operation of inter-provincial commissions, should prove useful to them in determining their positions and evaluating alternatives at the international level.
Organization of American States (OAS), Textos de documentas sobre el uso comercial de rios y lagos internacionales (Washington, D.C., 1968; OAS/Official Documents, OEA/Ser. I/IV. 1, CIJ-97), pp. 2-3; text in English in U.N. Doc. No. A/5409, Annex I, pp. 2-3. Free navigation was still recognized as the paramount use of international rivers; works must not interfere with navigation but, on the contrary, should seek to improve it (para. 5 and 6). The Declaration of Montevideo, as is the case with other resolutions of Inter-American Conferences, is not in binding treaty form; however, both Bolivia and Chile, in their controversy over the Rio Lauca, have taken its provisions to be the law, differing on the interpretation of the requirements. Exceptions to the Declaration were taken, at the time of its adoption, by Venezuela and the United States.
See text and accompanying studies in Inter-American Bar Association, Principles of Law Governing the Uses of International Rivers and Lakes, Washington, D.C., April 1958. At the 1954 Rio de Janeiro sectional meeting of the World Power Conference, the Chilean position stressed, with respect to the development of international water resources, the principle of integrated utilization of the waters for all uses, as distinguished from power development considered in isolation.
See Inter-American Juridical Committee, Industrial and Agricultural Use of International Rivers and Lakes, Revised Report and Draft Convention prepared in accordance with Resolution I of the Fifth Meeting of the Inter-American Council of Jurists (December 1965; OAS/Official Documents, OAE/Ser. I/VI. 2, CIJ-79).
For texts of the documents mentioned and others not mentioned, see OAS, supra note 16, pp. 1-55. For a broader but summary presentation, including the texts of various documents, see Pan American Union, Rios y Lagos Internacionales (Utiliza-ción para Fines Agricolas e Industriales), 3rd ed., August 1967, OAS/Official Documents, OAE/Ser. I/VI, CIJ-75 Rev.
For a listing of the international basins in the Western Hemisphere see Annex A.
See C. J. Meyers, The Colorado Basin, in Garretson, Hayton and Olmstead, supra note 7, pp. 486–607, and works cited therein.
Acta Final, II Reuni�F3;n de Cancilleres de los Paises de la Cuenca del Plata, Santa Cruz de la Sierra, Bolivia, Documentos 9, 10, 20 de mayo de 1968, reproduced in OAS, supra note 16, pp. 17-32. One year later, however, the Governments did conclude a treaty which ratified the Statute and the list of projects.
For the background leading up to the recent treaty, see R. D. Hayton, The Plata Basin, in Garretson, Hayton and Olmstead, supra note 7, pp. 298–442, and works cited therein.
Although often cited as a prominent example of successful international river basin development, note should be taken of the unfortunate degree of specificity given to certain aspects. See esp. R. W. Johnson, The Columbia Basin, in Garretson, Hayton and Olmstead, supra note 7, pp. 167–255, and J. V. Krutilla, The Columbia River Treaty: The Economics of an International River Basin Development (1967).
The United Nations Food and Agricultural Organization has published a comparative study of water laws in South America. FAO, Las leyes de aguas en Sudamérica (Rome, 1956) Agricultural development paper No. 56 (G. Cano, comp.).
CEPAL, Requerimientos jurídicos y administrativos de los proyectos y obras hidraülicas multinationales en América Latina, UNITAR/SIL. 1/BP/2 (Quito Regional Seminar on International Law, 1969).
Treaty Between Great Britain and the United States Relating to Boundary Waters, And Questions Arising Between the United States and Canada, Signed at Washington, January 11, 1909 (102 British and Foreign State Papers 137).
R. R. Baxter, ed., Documents on the St. Lawrence Seaway 54 (1960).
Ibid.
The Working Group on Underground Waters of the International Law Association’s Committee on International Water Resources Law has taken this position as its point of departure for all appropriate relationships between states, including customary obligations.
The International Law Association’s Committee on International Water Resources Law has a Working Group on Pollution of Coastal Areas and Enclosed Seas.
Water is diverted, with extraordinarily valuable hydropower results, from the Plata Basin (the Tieté River valley near São Paulo, Brazil) and dropped down the Great Escarpment to the Atlantic Coast. This particular exportation of water may be treated merely as a small part of Brazil’s total entitlement (in the nature of a consumptive use with zero return to the system) or as an extra-basin link in the territorial scope of the total system.
See, inter alia, C. Fligler, Multinational Public Enterprises (International Bank for Reconstruction and Development, 1967).
See United Nations, Economic Commission for Latin America, Los Recursos Hidráulicos de América Latina, II, Venezuela (U.N. Doc. No. E/CN. 12/593/Rev. 1)
ECLA established the Economic Cooperation Committee of the Central American Isthmus (CCE) in 1951, with the objective of promoting the economic integration of the region. The Economic Cooperation Committee thereafter established the Central American Sub-Committee for Electrification and Water Resources, which then established the above-named Regional Committee.
See chapter 6 of the Helsinki Rules, cited supra note 7. A dispute over water resources between states parties to a pre-existing arbitration treaty may, of course, be subjected to the requirements of such a treaty and handled accordingly.
See Article 35 of the Statute of the ICJ; also, Articles 36, para 2, 40 and 53 of the ICJ Statute, and Article 33 of the ICJ’s Rules of Court.
Article 36, paragraph 1, ICJ Statute.
See Article 67 of the ICJ Rules of Court.
Article 34, paragraph 1, ICJ Statute.
But see Article 34, paragraphs 2 and 3, ICJ Statute.
See Pan American Union, supra note 19, pp. 73-77, 393-435, 446-50.
Ibid.
See OAS, cited supra, note 16, pp. 56-156; W. R. Willoughby, The St. Lawrence Waterway (1961).
See Pan American Union, supra note 19, pp. 63-72, 245-392.
The friction between Bolivia and Chile over the Rio Lauca is the prime example. On the dispute, see Chile, Min. de Relaciones Exteriores, La Cuesti�F3;n del Rio Lauca (1963); Chinel, La Desviaci�F3;n del Rio Lauca por Chile (La Paz, Bolivia, 1963); Lecaros, International Rivers: The Lauca Case, 3 Indian J. Int’l L. 133.
A second inter-ministerial conversation in 1964 served to stimulate the activities of the Commission. See Pan American Union, cited supra note 19, pp. 83-84, 484-86.
See Inter-Amer. Development Bank, La Cuenca del Plata (Resumen del Informe Preliminar, 1970).
See Pan American Union, supra note 19, pp. 87-90, 498-511.
Art. 7, Tratado entre la Republica Argentina y la Republica Oriental del Uruguay sobre Limites en el Rio Uruguay (1961), Pan American Union, supra note 19, p. 510.
Concluded on April 23, 1969, in Brasilia at the First Extraordinary Meeting of Foreign Ministers of the Countries of the Plata Basin. Several unofficial translations into English have appeared but are not relied upon here. See, e.g., The Review of the River Plate for Apr. 30, 1969, pp. 607-8.
Art. I.
Art. V.
Art. III.
Art. II.
Art. III, para 2.
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© 1974 Martinus Nijhoff, The Hague, Netherlands
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Hayton, R.D. (1974). Non-Maritime International Water Resources: Development and Conservation in the Americas. In: Rodley, N.S., Ronning, C.N. (eds) International Law in the Western Hemisphere. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9214-9_1
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