An assessment of the work of the International Law Commission

Natural Resources Journal

Volumn 36, Issue 2 PART 1, 1996, Pages 297-318

  McCaffrey, Stephen C ^a  

^a UNIVERSITY OF THE PACIFIC   (United States)

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EID: 21444432794     PISSN: 00280739     EISSN: None     Source Type: Journal    
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References (122)

1. Special Rapporteur for the work of the International Law Commission on the Law of the Non-Navigational Uses of International Watercourses, 1985-1991. Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, at 197, U.N. Doc. A/49/10 (1994) [hereinafter 3994 ILC Report].
2. Id. at 326.
3. Draft Articles on the Law of Non-Navigational Uses of International Watercourses, G.A. Res. 49/52, U.N. Doc. A/RES/49/52 (1994) (adopted by a vote of 143 for, 0 against, with 8 abstentions).
4. Statute of the International Law Commission, art. 1(1), U.N. Doc. A/CN.4 rev. 2, 1 (1982).
5. Id. art. 8, at 2.
6. This is true, for example, of Part One of the ILC's draft articles on state responsibility.
7. Progressive Development and Codification of the Rules of International Law Relating to International Watercourses, G.A. Res. 2669, U.N. GAOR, 25th Sess., Supp. No. 8, at 127, U.N. Doc. A/8028 (1970).
8. [1974] 2 Y.B. Int'l L. Comm'n 301.
9. The solicitation of the views of governments is customary for new items on the agenda of the Commission.
10. The questionnaire and a discussion of other questions on which the views of states were sought are contained in the Commission's 1974 report, supra note 8, at 303-04.
11. Id. at 301.
12. [1976] 2 Y.B. Int'l L. Comm'n 147.
13. The Commission later received replies from eleven additional states. See [1978] 2 Y.B. Int'l L. Comm'n 253;
14. [1979] 2 Y.B. Int'l L. Comm'n 178;
15. [1980] 2 Y.B. Int'l L. Comm'n 253;
16. [1982] 2 Y.B. Int'l L. Comm'n 192.
17. [1976] 2 Y.B. Int'l L. Comm'n 184.
18. [1976] 2 Y.B. Int'l L. Comm'n 162, para. 164.
19. 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, entitled "Use of Terms." 1994 ILC Report, supra note 1, at 199.
20. [1977] 2 Y.B. Int'l L. Comm'n 124.
21. In 1982 Ambassador Jens Evensen of Norway succeeded Judge Schwebel who had resigned from the Commission upon his election to the International Court of Justice. [1982] 2 Y.B. Int'l L. Comm'n 121.
22. The author was appointed special rapporteur in 1985 following Evensen's own election to the Court. [1985] 2 Y.B. Int'l L. Comm'n 70.
23. Professor Robert Rosenstock of the United States was appointed special rapporteur in 1992, the author not having stood for re-election to the Commission. Report of the International Law Commission on the Work of its Forty-Fourth Session 130, U.N. GAOR, 47th Sess., Supp. No. 10, U.N. Doc. A/47/10 (1992).
24. The articles, adopted in 1980, were entitled: 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 110-36. Four of these six articles have counterparts in the present draft. The two that do not are Article 5 and Article 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.
25. 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 65.
26. 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 in 1966. Report of the Fifty-Second Conference Held at Helsinki, 1966, at 484, International Law Association (1966) [hereinafter Helsinki Rules].
27. [1983] 2 Y.B. Int'l L. Comm'n 155.
28. See Schwebel, supra note 18.
29. [1984] 2 Y.B. Int'l L. Comm'n 101.
30. 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 25-38.
31. 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 ten years or more to complete.
32. Of the more than 180 member states of the United Nations, it is unusual if more than thirty submit comments on ILC drafts. However, comments are usually submitted by those governments most interested in the topic in question.
33. See Report of the International Law Commission on the Work of its Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No. 10, at 161, U.N. Doc. A/46/10 (1991);
34. [1991] 2 Y.B. Int'l L. Comm'n 66 [hereinafter 1991 ILC Report].
35. The articles adopted, on first reading were reported upon in Current Developments notes in the American Journal of International Law on the Commission's 1987-1991 sessions. See, e.g., 81 AM. J. INT'L L. 668 (1987);
36. 82 AM. J. INT'L L. 144 (1988);
37. 83 AM. J. INT'L L. 153 (1989);
38. 83 AM. J. INT'L L. 937 (1989);
39. 84 AM. J. INT'L L. 930 (1990);
40. 85 AM. J. INT'L L. 703 (1991).
41. 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).
42. See The Law of the Non-Navigational Uses of International Watercourses, Comments and Observations Received from States, U.N. Doc. A/CN.4/447 (1993). See also id., at Add.1, Add.2, Add.3 (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 6th Comm. in 1991.
43. 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, U.N. Doc. A/CN.4/451 (1993) [hereinafter Rosenstock, First Report];
44. Robert Rosenstock, Second Report on the Law of the Non-Navigational Uses of International Watercourses, U.N. Doc. A/CN.4/462 (1994) [hereinafter Rosenstock, Second Report].
45. 1994 ILC Report, supra note 1, at 206 (art. 3, Watercourse Agreements). Paragraph 3 of that article requires states sharing an international watercourse to enter into consultations with a view to negotiating such an agreement if one of them considers it necessary. In the words of the Commission's commentary to that article, the "framework agreement" character of the draft "will provide for the States parties the general principles and rules governing the non-navigational uses of international watercourses, in the absence of specific agreement among the States concerned, and provide guidelines for the negotiation of future agreements." Id. at 207.
46. G.A. Res. 2669, ¶ 1 (1970).
47. Helsinki Rules, supra note 18, at 484.
48. According to one study, "[t]he most important substantive reservation [to mentioning the Helsinki Rules] . . . was that [they] advocated a drainage basin framework." James Wescoat, Beyond the River Basin: The Changing Geography of International Water Problems and International Watercourse Law, 3 COLO. J. INT'L, ENVTL. L. & POL'Y 301, 307 (1992).
49. For the questionnaire and government replies, see [1976] 2 Y.B. Int'l L. Comm'n 147, U.N. Doc. A/CN.4/SER.A/Add.1.
50. Wescoat, supra note 31, at 311.
51. See id. at 307, summarizing reasons for representatives' positions on the Helsinki Rules in the Sixth Committee debate. For example, one reservation was that the "Helsinki Rules had been formulated by a professional organization that did not represent nation-states." Id. Another was that "privileging the Helsinki Rules might hamper the work of the ILC." Id.
52. 1994 ILC Report, supra note 1, at 199, art. 2(b).
53. Id. art. 2(a).
54. See, e.g., the resolution adopted by the Institute of International Law at its 1911 session in Madrid. 1911 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL (Inst. Int'l L.) 885.
55. For an example, see the Declaration of Montevideo concerning the Industrial and Agricultural Use of International Rivers, approved by the Seventh Inter-American conference at its fifth plenary session in Montevideo on December 24th, 1933. [1974] 2 Y.B. Int'l L. Comm'n 212;
56. 28 AM. J. INT'L L. Supp. 59-60 (1934).
57. See, e.g., the final act of the Congress of Vienna of June 9th, 1815. G. Martens, 2 NOUVEAU RECUEIL DES TRAITÉS 379 (1887).
58. See, e.g., H. SMITH, THE ECONOMIC USES OF INTERNATIONAL RIVERS 155-56 (1931) ("If the principle be sound that every river system must be treated as a single physical unit, then it becomes immaterial to ask whether or not the bed of the river coincides, in whole or in part, with the political frontier.");
59. Jerome Lipper, Equitable Utilization, in THE LAW OF INTERNATIONAL DRAINAGE BASINS 15, 16-17 (A. Garretson et al. eds., 1967) ("In summary, the distinction between contiguous and successive rivers . . . has no significance in international law.").
60. Report of the International Law Commission, U.N. GAOR 6th Comm., 46 Sess. at 16, U.N. Doc. A/CN.4/L.469 (1992) (topical summary of the discussion held in the Sixth Committee of the General Assembly during its forty-sixth session, prepared by the Secretariat).
61. The "Harmon Doctrine" was enunciated by Attorney General Judson Harmon, who cited as authority a decision of the U.S. Supreme Court in a case involving immunity of state vessels from suit. 21 Op. Att'y Gen. 281-82 (1898). The Doctrine suggests that a state has complete freedom of action with regard to the portion of an international watercourse (at least a successive one) within its territory, regardless of the consequences of its actions upon other states. This is not the only possible interpretation of Attorney General Harmon's opinion, however, since nothing in it denied that there was an obligation not to cause harm to other states. The United States and Mexico amicably resolved, by treaty, the dispute that gave rise to the Doctrine. Convention Providing for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, May 21, 1906, 34 Stat. 2953, T.S. no. 455, 9 Bevans 924. The Doctrine has been repudiated by the United States, the country that originally articulated it. See, e.g., the statement of Frank Clayton, counsel for the United States section of the International Boundary Commission, U.S.-Mexico, before the U.S. Senate Committee on Foreign Relations in 1945: "Attorney-General Harmon's opinion has never been followed either by the United States or by any other country of which I am aware." Hearings Before the Senate Committee on Foreign Relations on Treaty with Mexico Relating to the Utilization of the Waters of Certain Rivers, 79th Cong., 1st Sess., part 5, 97 (1945).
62. See generally Stephen McCaffrey, Second Report on the Law of the Non-Navigational Uses of International Watercourses, [1986] 2 Y.B. Int'l L. Comm'n 105-110, ¶¶ 79-91, U.N. Doc. A/CN.4/SER.A/1986/Add.1 (Part 1) (1988).
63. This requirement was also one of the elements of the definition of "international drainage basin." Helsinki Rules, supra note 18, art. 2.
64. 1991 ILC Report, supra note 25, at 175.
65. 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, U.N. Doc. A/CONF.39/27 289 (1969), reprinted in 8 ILM 679 (1969) (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 1, at 202.
66. 1994 ILC Report, supra note 1, at 201.
67. In addition to the phenomenon of deltas discussed in the previous note, 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.
68. See, e.g., the comments and observations of Switzerland on the draft articles as adopted on first reading. U.N. Doc. A/CN.4/447, at 44 (1993); Stephen McCaffrey, The Law of International Watercourses: Some Recent Developments and Unanswered Questions, 17 DEN. J. INT'L L. & POL'Y 505, 508-53 (1989).
69. Since upper riparian states generally develop their water resources later than their downstream neighbors this would make such development by upstream states difficult, at best.
70. Helsinki Rules, supra note 18, art. IV.
71. Id., art. V(2)(k).
72. ANDRÉ NOLLKAEMPER, THE LEGAL REGIME FOR TRANSBOUNDARY WATER POLLUTION: BETWEEN DISCRETION AND CONSTRAINT 68 (1993).
73. See id. at 69 (equitable use "provides little or no guidance to a state that unilaterally intends to assess the permissibility of pollution").
74. HARALD HOHMANN, PRAVENTIVE RECHTSPFLICHTEN UND PRINZIPIEN DES MODERNEN UMWELTVÖLKERRECHTS 57 (1992).
75. This is the case with both NOLLKAEMPER, supra note 52, and HOHMANN, supra note 54.
76. See McCaffrey, supra note 48, at 510.
77. 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 36 (prima facie, at least, utilization of an international watercourse . . . is not equitable if it causes other watercourse States appreciable harm).
78. The revised text of Article 7 proposed by the new special rapporteur read 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 27, at 10-11; see also Rosenstock, Second Report, supra note 27, at 11, which is identical except for the inclusion of transboundary aquifers.
79. Art. 7, as adopted on first reading. [1991] 2 Y.B. Int'l L. Comm'n 67.
80. Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994) (art. 7, ¶ 1 of commentary).
81. See the special rapporteur's proposed re-draft of Article 7, supra note 58.
82. The 1994 version replaced "appreciable" with "significant" wherever the former term appeared in the 1991 draft.
83. 1994 ILC Report, supra note 60, at 236.
84. See McCaffrey, supra note 48, at 523 n.71 and accompanying text.
85. Id. at 519-25 (describing this debate).
86. Article 6, entitled Factors Relevant to Equitable and Reasonable Utilization, contains a non-exhaustive list of seven factors to be taken into account in implementing the rule of equitable utilization. 1994 ILC Report, supra note 60, at art. 6.
87. Id. at 236.
88. Id.
89. Id.
90. Id. at 244, art. 7 ¶ 21 of commentary.
91. Id. at 242.
92. See id. at 243 ¶ 18 of commentary (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).
93. A change was made at the second reading stage to encourage an early response by the notified state. See id. at 272 art. 16(2).
94. 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 provide the notifying state within six months of the initial notification with a "documented explanation setting forth the reasons for the finding." Id. at 279 art. 15.
95. Id. at 273 art. 17. 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." Id. at 273 (commentary to Article 17). Negotiations would only be "necessary" if consultations failed to resolve the matter.
96. 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 the Fisheries Jurisdiction Case (U.K. v. Ice.) 1974 I.C.J. 3 (July 25); the North Sea Continental Shelf Cases (F.R.G. v. Den., F.R.G. v. Neth.) 1969 I.C.J. 3 (Feb. 20); the Lake Lanoux Award, 12 R.I.A.A. 281 (1957).
97. 1994 ILC Report, supra note 60, at 280.
98. "Regulation" in this context is a technical term meaning "the use of hydraulic works or any other continuing measure to alter, vary or otherwise control the flow of the waters of an international watercourse." Id. at 304 art. 25(3).
99. See generally PETER GLEICK, WATER IN CRISIS: A GUIDE TO THE WORLD'S FRESH WATER RESOURCES (1993);
100. La Rivière, Threats to the World's Water, SCI. AM., Sept. 1989, at 80, 84 (graph); see also
101. Linden, The Last Drops, TIME, Aug. 20, 1990, at 58.
102. See, e.g., UNITED NATIONS, MANAGEMENT OF INTERNATIONAL WATER RESOURCES: INSTITUTIONAL AND LEGAL ASPECTS 33-36 (1987); Stephen McCaffrey, Sixth Report, [1990] 2 Y.B. Int'l L. Comm'n 41.
103. 1994 ILC Report, supra note 60, at 300 art. 24(1).
104. Id. at 309 art. 27.
105. Id. at 312 art. 28.
106. Id. at 315 art. 29.
107. Id. at 317 art. 30. This article covers cases in which two or more of the states sharing an international watercourse refuse for political reasons to communicate directly with each other. Id.
108. Id. at 318 art. 31.
109. Id. at 319 art. 32.
110. Id. at 322 art. 33.
111. See Principle 14 of the Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, Governing Council of the United Nations Environment Programme (UNEP), decision 6/14 of May 19th, 1978, Environmental Law Guidelines and Principles, G.A. Res. 3129, U.N. GAOR, 28th Sess., Supp. No. 30, at 48, U.N. Doc. A/9030 (1978), reprinted in 17 ILM 1097 (1978).
112. See Recommendation on Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, OECD Doc. C(77) (final, annex), in OECD, OECD AND THE ENVIRONMENT 150 (1986).
113. 1994 ILC Report, supra note 60, at 320.
114. See McCaffrey, Sixth Report at 48, U.N. Doc. A/CN.4/427, Feb. 23, 1990; Stephen McCaffrey, Sixth Report, Corr. 1, at 5-9 (May 22, 1990); see also the discussion of this and other provisions that were proposed but not adopted in Stephen McCaffrey, Background and Overview of the International Law Commission's Study of the Non-Navigational Uses of International Watercourses, 3 COLO. J. INT'L ENVTL. L. & POL'Y 17, 25-27 (1992).
115. 1994 ILC Report, supra note 60, at 322 art. 33.
116. 20 ENCYCLOPEDIA BRITANNICA 789 (15th ed. 1987).
117. See The Law of International Groundwater Resources, Report of the Committee on International Water Resources Law, in 62 INT'L, L. ASSOC. REP. 238, 256 (Seoul Conf. 1986);
118. see also Robert Hayton & Albert Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 29 NAT. RESOURCES J. 663, 673-76 (1989).
119. See Hayton & Utton, supra note 95, at 8. See also id. at 21 (Rules on International Groundwaters).
120. Robert Rosenstock, Second Report on the Law of the Non-Navigational Uses of International Watercourses, U.N. Doc. A/CN.4/462 (1994) (the Annex is found at 22).
121. Id. at 35.
122. 1994 ILC Report, supra note 60, at 326.