Evolution of the river basin concept in national and international water law

Natural Resources Journal

Volumn 36, Issue 2 PART 1, 1996, Pages 359-391

  Teclaff, Ludwik A ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 21444455388     PISSN: 00280739     EISSN: None     Source Type: Journal    
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References (269)

1. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1661 (2d ed. unabridged, 1987).
2. See infra text accompanying notes 62-72, 77-78, 86, 170-71.
3. LUDWIK A. TECLAFF, THE RIVER BASIN IN HISTORY AND LAW 14 (1967)
4. [hereinafter TECLAFF, THE RIVER BASIN].
5. For a recent discussion of the hydrologic cycle and the international law that pertains to all of its phases, beginning in the atmosphere and ending in the ocean, see Symposium, The International Law of the Hydrologic Cycle, 31 NAT. RESOURCES J. 1 (Ludwik A. Teclaff & Albert E. Utton eds., 1991).
6. In hilly topography a watershed between two river basins is often readily distinguishable. However, some drainage divides are so low in relation to the surrounding land surface that they may permit the waters of separate river systems to merge, especially in time of flooding, or may allow one river to "capture" another. TECLAFF, THE RIVER BASIN, supra note 3, at 10-11.
7. On aquatic disturbance regimes, see, e.g., Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875, 878-81 (1994).
8. TECLAFF, THE RIVER BASIN, supra note 3, at 14.
9. There are more than 240 international river and lake basins listed in the Food and Agriculture Organization's index of treaties. See U.N. FAO's Legislative Study No. 15, Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, (1978). More rivers and lakes have acquired international status since the breakup of the former U.S.S.R.
10. The following section on water resources management in antiquity is based on TECLAFF, THE RIVER BASIN, supra note 3, at 15-25.
11. Non-navigable streams were private property of the owners of the land through which they flowed. Their use was governed by statute and custom and there was enough water to satisfy the needs of a mostly rural population. Navigable rivers were parceled out among and exploited by local magnates who asserted an exclusive right to impose charges on navigation. There was not much room for cooperation in water management. See TECLAFF, THE RIVER BASIN, supra note 3, at 56-58, 76-77;
12. EDOUARD P. ENGELHARDT, HISTOIRE DU DROIT FLUVIALE CONVENTIONNEL 20 (1889). Even so, there were some institutions exercising a wider jurisdiction, such as the English Commissioners of Sewers, whose origins go back to the Middle Ages and whose powers and duties were consolidated in the reign of Henry VIII. Commissioners of Sewers Act, 1532, 23 Hen. 8, ch. 5 (Eng.).
13. Quoted in Samuel C. Wiel, Running Water, 22 HARV. L. REV. 190, 195 (1908-09). The French Coutume de Normandie, for example, stipulated that water should not be diverted from its natural course.
14. A. DAVIEL, 2 TRAITÉ DE LA LÉGISLATION ET DE LA PRATIQUE DES COURS D'EAU 135 (1845).
15. One of the earliest of these agreements was the Treaty on Boundaries Between Their Majesties the King of Prussia and the King of the Netherlands, Oct. 7, 1816, Prussia-Neth., 3 Martens Nouveau Receuil (ser. 1) 54-65.
16. On the riparian rights doctrine generally, see Ludwik A. Teclaff, What You've Always Wanted to Know About Riparian Rights, But Were Afraid to Ask, 12 NAT. RESOURCES J. 30 (1972)
17. [hereinafter Teclaff, Riparian Rights].
18. See generally Eugene F. Ware, ROMAN WATER LAW (1905) (reproducing the Digest of Ulpian).
19. For the common law origins of the riparian doctrine, see Theodore E. Lauer, The Common Law Background of the Riparian Doctrine, 28 Mo. L. REV. 60 (1963).
20. French eighteenth and nineteenth-century jurists were considerably under the influence of Roman law. See, e.g., ROBERT J. POTHIER, Traité du Droit du Domaine de Propriété, in 8 OEUVRES (1807);
21. 3 PROUDHON, TRAITÉ DU DOMAINE PUBLIC (1843). In France the riparian rights doctrine was restricted to non-navigable and non-floatable waterways. Code Napoléon art. 644 (Off. ed., 1810). The Code gave enough power to the courts to deal effectively with conflicts between water users. Id. at art. 645. In this way an elastic machinery was created to protect the larger interests of an entire basin, which before were safeguarded rigidly by custom.
22. The French version of the doctrine influenced two American jurists, Story and Kent. Story held that the riparian right being common to all the proprietors on a river, no one had a right to interfere with the natural flow. Tyler v. Wilkinson, 24 F. Cas. 472, 474 (C.C.D.R.I. 1827) (No. 14312). Kent elaborated the principle in 3 KENT, COMMENTARIES ON AMERICAN LAW *440 (1829). Two leading English cases refer to works and decisions of Kent and Story. Wood v. Waud, 154 Eng. Rep. 1047 (Ex. 1849); Embrey v. Owen, 155 Eng. Rep. 579 (Ex 1851).
23. See Teclaff, Riparian Rights, supra note 13, at 38 n.58, 48-52.
24. Because exploitation of water was left attached to the land and no machinery was provided for taking into account other than immediate local problems, demands for water had to be satisfied without extensive coordination of waterworks. Under the natural flow theory of riparian rights, an a priori list of uses defined according to reasonableness was developed by the courts. See, e.g., Tyler v. Wilkinson, 24 F. Cas. 472 (C.C.D.R.I. 1827) (No. 14312); Hendrick v. Cook, 4 Ga. 241 (1848); Clinton v. Myers, 46 N.Y. 511 (1871). The rule of attachment of water use to riparian land remained rigidly in force until well into the 20th century. See Attwood v. Llay Main Collieries, Ltd. 444, 458 (Ch. 1926); Robertson v. Arnold, 186 S.E. 806, 809 (Ga. 1936); Neal v. City of Rochester, 50 N.E. 803 (N.Y. 1898).
25. See, e.g., Frontier Treaty, Mar. 28, 1820, Fr.-Neth., 71 Consol. T.S. 1; Convention Respecting Boundary Streams, June 22, 1882, Belg.-Fr., 160 Consol. T.S. 331. Some treaties even called for the removal of waterworks in existence. See Frontier Treaty, July 2, 1824, Neth.-Hanover, 74 Consol. T.S. 291; Convention Relative to the Embankment of the Dollard, Sept. 23, 1874, Neth.-Prussia, 148 Consol. T.S. 169; Frontier Determination Treaty, Dec. 2, 1856, Fr.-Spain, 116 Consol. T.S. 85; Final Act for the Delimitation of the International Frontier in the Pyrenees, July 11, 1868, Fr.-Spain, 137 Consol. T.S. 343.
26. In Europe and parts of the world which had adopted the French version of riparian rights, the doctrine was losing ground to systems of administrative allocation of water. LUDWIK A. TECLAFF, ABSTRACTION AND USE OF WATER: A COMPARISON OF LEGAL REGIMES at 17-56, U.N. Doc. ST/ECA/154, U.N. Sales No. E.72.II.A.10 (1972).
27. See TECLAFF, THE RIVER BASIN, supra note 3, at 28-32, 42-46.
28. An example is the Mississippi basin and New Orleans, especially after the Louisiana Purchase which gave the United States control over the river and all its western tributaries, with access to a land area of over one million square miles. Treaty with France, Apr. 30, 1803, art. 1, 8 Stat. 201, T.S. No. 86. See TECLAFF, THE RIVER BASIN, supra note 3, at 67-71.
29. See, e.g., PIERRE DEFFONTAINES, LES HOMMES ET LEURS TRAVAUX DANS LES PAYS DE LA MOYENNE GARONNE 375 (1932).
30. The most impressive example of the use of waterways through almost an entire river basin is provided by timber floating. When timber is transported from the uppermost tributaries to the mouth of a river, the degree of navigational unity of the basin represented by this commodity is very high. See Jean Dollfus, L'homme et le Rhin, 32 GEOGRAPHIE HUMAINE 72-74, 96-98 (1960) (for the Rhine and its tributaries in the Roman period and the Middle Ages);
31. DONALD CREIGHTON, THE EMPIRE OF THE ST. LAWRENCE 147, 150, 169 (1958) (for the St. Lawrence and its tributaries in the late 18th and early 19th centuries).
32. TECLAFF, THE RIVER BASIN, supra note 3, at 28-42.
33. One of the earliest of these treaties was the Turkey-Austria Treaty of May 1, 1616, which dealt with Danube navigation. See 9 TESTA, RECUEIL DES TRAITÉS DE LA PORTE OTTOMANE 26-27;
34. 1 FAUCHILLE, TRAITÉ DE DROIT INTERNATIONAL PUBLIC, § 528, at 533 (8th ed. 1925). In 1792, during the French Revolution, the French Executive Council proclaimed that the watercourse of a navigable river was the common and inalienable property of all its riparian states. ENGELHARDT, supra note 10, at 51; G. KAECKENBEECK, INTERNATIONAL RIVERS 32 (1959) (reprinted in its entirety as Grotius Soc. Pub. No. 1 (1962)). This principle influenced the 1804 Convention of Paris, which stipulated that the Rhine should always be considered common to both the French and German empires. Convention de l'Octroi du Rhin, Aug. 15, 1804, 8 Martens, Nouveau Recueil des Principaux Traités, Ser. 2, 261.
35. See, for example, the Treaty Between Austria and the Duchies of Parma and Modena, July 3, 1849, 2 Martens Nouveau Recueil 447 (declaring the River Po, together with its tributaries, whether national or not, open to all flags); see also the Statute of Navigation of the Elbe, Feb. 22, 1922, 26 L.N.T.S. 223, which provided a means of extending internationalization to the whole basin. For other examples, see TECLAFF, THE RIVER BASIN, supra note 3 at 61-63.
36. They made possible the building of really effective dams to regulate a river for storage, flood control, power production and other uses. EDWARD A. ACKERMAN & GEORGE C.G. LOF, TECHNOLOGY IN AMERICAN WATER RESOURCES DEVELOPMENT 221-32 (1959).
37. SIR WILLIAM WILLCOCKS, THE NILE RESERVOIR DAM AT ASWAN AND AFTER 10-36 (1901).
38. Act of Oct. 2, 1888, ch. 1069, 25 Stat. 526 (1988).
39. Pathfinder (1909), Buffalo Bill (1910), and Roosevelt dam (1911). T.W. MERMEL, REGISTER OF DAMS IN THE UNITED STATES 30, 174, 188 (1958).
40. REPORT OF NATIONAL CONSERVATION COMMISSION, S. DOC. NO. 676, 60th Cong., 2d Sess., v. 1, at 27 (1909).
41. The U.S. Army Corps of Engineers prepared some 200 separate studies of important river basins in the United States. They were known as "308 Reports" from the House document in which the basins to be surveyed were listed. U.S. ARMY CORPS. OF ENG., H.R. DOC. NO. 308, 69th Cong., 1st Sess. (1926).
42. See Gordon M. Fair, Pollution Abatement in the Ruhr District, in COMPARISONS IN RESOURCE MANAGEMENT 142, 149 (Henri Jarrett ed., 1961);
43. Gieseke, River Basin Authorities on the Ruhr and on Other Rivers in Germany, 2 U.N. Economic Commission for Europe, Conference on Water Pollution Problems in Europe 276-77 (U.N. Doc. Water Poll./Conf. 4) (1961).
44. Declaration of Madrid, Apr. 20, 1911, 24 ANN. DE L'INSTITUT DE DROIT INT'L 367 (1911).
45. Id. ¶ I.
46. Id. ¶ II.3.
47. In France, plans embracing basins had already been made by 1920 and the law of 1921 envisaged the development of the entire French part of the River Rhône. Law Approving the Plan of Works for Improvement of the Rhône from the Swiss Frontier to the Sea from the Point of View of Power, Irrigation, Navigation, and Other Agricultural Uses, 21 Duv. & Boc. 261 (1921). In England, the whole country was divided into drainage districts by legislation in 1930. Land Drainage Act, 1930, 20 & 21 Geo. 5, ch. 44, §§ 1, 83 (Eng.). A few years later, in the United States, the President's Committee on Water Flow tentatively recommended ten basins (one of which was the Tennessee) for comprehensive development. H.R. DOC. NO. 395, 73rd Cong., 2d Sess. at 5 (1934).
48. Act of May 18, 1933, ch. 32, 48 Stat. 58 (codified as amended at 16 U.S.C. § 831 (1988)). The act referred specifically to the economic and social development of the area as part of its general purpose. Id. § 831(u).
49. Id. § 831(a).
50. See Damodar Valley Corporation, Act. No. 14, Mar. 27, 1948, 6 INDIA CODE 13-33 (1956) (India); Gal Oya Development Board, Act. No. 51, Nov. 24, 1949 (Sri Lanka); Presidential Decree No. 3110, Oct. 22, 1954 (Colombia, applicable to the Cauca Valley); Law No. 541, 7 Coleção 141 (1948) (Brazil, applicable to the São Francisco Valley); Act No. 46 (1961) (Ghana, establishing the Volta River Authority).
51. In the 1960s, the nine states of the Niger River basin bound themselves to cooperate closely in, inter alia, industrial and agricultural exploitation of the basin, and established a commission which was subsequently reorganized as the Niger Basin Authority. Convention Creating the Niger Basin Authority, Nov. 21, 1980, in U.N. DEPARTMENT OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, TREATIES CONCERNING THE UTILIZATION OF INTERNATIONAL WATER COURSES FOR OTHER PURPOSES THAN NAVIGATION: AFRICA 56, U.N. Doc. ST/ESA/141 (1984) [hereinafter TREATIES: AFRICA].
52. River Plate Treaty, Apr. 23, 1969, 8 I.L.M. 905.
53. In 1978, the eight states of the Amazon River basin concluded a treaty for Amazonian Co-Operation encompassing much more than water resources. Treaty for Amazonian Co-Operation, July 3, 1978, 17 I.L.M. 1045. Among its purposes were the harmonious development of the Amazon region and the equitable distribution of benefits of such development. Id. at Preamble.
54. The cumbersome structure of some international basin administrations in Latin America and Africa has hampered their ability to deal with problems when given a broader mandate. They have been criticized for unsuitable working methods, insufficient coordination between basin agencies and national governments, inflexibility in functioning, unnecessary overlapping of work as between subregional organizations, and lack of local participation. See, e.g., Guillermo J. Cano, Argentina, Brazil and the de la Plata River Basin: A Summary Review of Their Legal Relationship, in WATER IN A DEVELOPING WORLD 127, 142 (Albert E. Utton & Ludwik A. Teclaff eds., 1978);
55. United Nations Development Programme, The Multi-Donor Approach in Large River and Lake Basin Development in Africa, in U.N. DEPARTMENT OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, RIVER AND LAKE BASIN DEVELOPMENT, PROCEEDINGS OF THE UNITED NATIONS INTERREGIONAL MEETING ON RIVER AND LAKE BASIN DEVELOPMENT WITH EMPHASIS ON THE AFRICA REGION, ADDIS ABABA, ETHIOPIA, OCT. 10-15, 1988, U.N. Doc. ST/TCD/13, at 74, 95 (1990)
56. [hereinafter U.N. RIVER AND LAKE BASIN DEVELOPMENT].
57. See TECLAFF, THE RIVER BASIN, supra note 3, at 146-48.
58. Water Resources Planning Act, July 22, 1965, Pub. L. No. 89-80, 79 Stat. 244 (1965) (codified at 42 U.S.C. §§ 1962b (1944)).
59. Law Concerning the Regime and Distribution of Waters and Protection Against Pollution, 1964, 47 B.L.D. 674 (1964) (Fr.).
60. River Boards Act, 1948, 11 & 12 Geo. 6, ch. 32 (Eng.); Water Act, 1973, ch. 37 (Eng.).
61. In 1957, the four states of the Lower Mekong basin (Cambodia, Laos, Thailand, and Vietnam) adopted, under U.N. auspices, the Statute of the Coordinating Committee of the Lower Mekong. Statute of the Committee for Co-Ordination of Investigations of the Lower Mekong Basin, Oct. 31, 1957, reprinted in LEGISLATIVE TEXTS AND TREATY PROVISIONS CONCERNING THE UTILIZATION OF INTERNATIONAL RIVERS FOR OTHER PURPOSES THAN NAVIGATION 267, U.N. Doc. ST/LEG/SER.B/12 (1963)
62. [hereinafter U.N. LEGISLATIVE TEXTS].
63. See Indus Waters Treaty, Sept. 19, 1960, 419 U.N.T.S. 126. By this treaty, to which the International Bank for Reconstruction and Development was party and prime mover, India and Pakistan agreed to divide the waters of the tributaries of the Indus River, to cooperate in building waterworks, and to establish a permanent commission. Id. at arts. 2-4, 8, 9.
64. The Senegal Basin is governed by the most sophisticated water resources institution in Africa, the Organization for Management of the Senegal River (OMVS), established in 1972. See Convention Portant Creation de l'Organisation Pour la Mise en Valeur du Fleuve Sénégal, Mar. 11, 1972, Mauritania-Guinea-Sen.-Mali, reprinted in TREATIES: AFRICA, supra note 42, at 21.
65. For decades Canada and the United States developed their parts of the Columbia River basin separately. By the Columbia River Treaty of 1961 they agreed to a joint development, primarily of power. Treaty Relating to Cooperative Development of the Columbia River Basin, Jan. 17, 1961, U.S.-Can., 15 U.S.T. 1555.
66. U.N. ESCOR, 21st Sess., Annexes at 6, U.N. Doc. E/2827 (1956).
67. U.N. DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS, INTEGRATED RIVER BASIN DEVELOPMENT 1, U.N. Doc. E/3066 (1958).
68. INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FORTY-SEVENTH CONFERENCE 242 (1956) (held in Dubrovnik);
69. INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FORTY-EIGHTH CONFERENCE 99 (1958) (held in New York).
70. Institute of International Law, Resolutions Adopted at the 1961 Session, in 42 ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL 370 (1961),
71. reprinted in English in 56 AM. J. INT'L L. 737 (1962).
72. Report of the Fifty-Second Conference Held at Helsinki, 1966, at 484, International Law Association (1966),
73. reprinted in ILA, HELSINKI RULES ON THE USES OF THE WATERS OF INTERNATIONAL RIVERS (1967)[hereinafter Helsinki Rules].
74. Id. at art. IV.
75. Ludwik A. Teclaff, Fiat or Custom: The Checkered Development of International Water Law, 31 NAT. RESOURCES J. 45, 69 (1991) [hereinafter Fiat or Custom].
76. See infra, notes 121-30 and accompanying text.
77. U.S. DEP'T OF THE INTERIOR, PACIFIC SOUTHWEST WATER PLAN VI-8 (1963).
78. For a description of NAWAPA, see SPECIAL SUBCOMM. OM WESTERN WATER DEVELOPMENT, SENATE COMM. ON PUBLIC WORKS, WESTERN WATER DEVELOPMENT S. DOC. NO., 88th Cong., 2d Sess. 1964.
79. The scheme was revived in the drought year of 1988. 5 U.S. WATER NEWS 11 (1989).
80. See Hyde-Price, Eurasia, in RESOURCE POLITICS: FRESHWATER AND REGIONAL RELATIONS 149, 164-65 (Thomas & Howlett eds., 1993) [hereinafter RESOURCE POLITICS].
81. See PACIFIC SOUTHWEST WATER PLAN, supra note 62, Appendix I, at 1.
82. LUDWIK A. TECLAFF, WATER LAW IN HISTORICAL PERSPECTIVE 118-20 (1985)
83. [hereinafter TECLAFF, WATER LAW].
84. U.N. ECOSOC, THE DEMAND FOR WATER: PROCEDURES AND METHODOLOGIES FOR PROJECTING WATER DEMANDS IN THE CONTEXT OF REGIONAL AND NATIONAL PLANNING at 61, U.N. Doc. ST/ESA/38, U.N. Sales No. (1976). By 1994, there were 14 urban areas with populations of more than 10 million, all but four of which were in developing countries. By 2015, there are expected to be 27 such conurbations, of which at least six or seven will have populations of more than 20 million. ECONOMIST July 29, 1995, at 5, citing World Bank figures and estimates. To supply such huge metropolitan areas will require enormous quantities not only of water, but also of energy to transport it. Even now, pumping the one-third of Mexico city's water supply that lies farthest away from the metropolis costs twice as much as all the rest of the city's water. Id. at 13.
85. See TECLAFF, WATER LAW, supra note 66, at 121-24.
86. See SPULBER & SABBAGHI, Privatizing Water Supply and Distribution, in ECONOMICS OF WATER RESOURCES: FROM REGULATION TO PRIVATIZATION Ch. 9 (1994).
87. For a guide to the voluminous water market literature, see Dudley, Water Allocation by Markets, Common Property and Capacity Sharing: Companions or Competitors? 32 NAT. RESOURCES J. 757, 758-63 (1992);
88. see also CONTINENTAL WATER MARKETING (Anderson ed., 1994) (discussing the concept of free trade in water).
89. Water Act 1989, ch. 15, arts. 4, 11 (Eng.). See Burnett-Hall, Environmental Regulation in the United Kingdom: Its Development to the Present Day and Trends for the Future, Analysis and Perspective, 12 INT'L ENVTL. REP. (BNA) 461, 464-66 (1989); see also SPULBER & SABBAGHI, supra note 69, at 202-07.
90. Act of July 22, 1965, Pub. L. 89-80, 79 Stat. 244 (1965). Six river basin commissions were abolished in 1981 by Exec. Order No. 12,319, 46 Fed. Reg. 45, 591 (1981). See 42 U.S.C. § 1962b (1994).
91. When the International Law Commission began formulating draft articles, its first Special Rapporteur had proposed that "international watercourse" was synonymous with "international river basin." First Report on the Law of the Non-Navigational Uses of International Watercourses, [1976] 2 Y.B. INT'L L. COMM'N at 191, U.N. Doc. A/CN.4/295, ¶ 49. This formulation met with such opposition that it was abandoned. See Teclaff, Fiat or Custom, supra note 60, at 70-72.
92. See Basic Water Act of Aug. 2, 1985, R.A.L. 1985 (Sp.); Royal Decree 927/1988, July 29, 1988, B.O.E. No. 209, Aug. 31, 1988 (Sp.), text also in INT'L ENVTL REP. (BNA) 289: 0103; Law No. 183, May 18, 1989, 75 Leg. Ital. I, 1368 (1989) (Italy); Law No. 36, Jan. 5, 1994, 80 Lex Leg. Ital. I, 446 (1994) (Italy).
93. See France's Law of 1964, supra note 48; Law No. 92-3, Jan. 1992, 10 A.L.D. 104 (Feb. 13, 1992), J.O. 187 (Jan. 4, 1992) (Fr.).
94. The French model, according to a French Environment Ministry spokesman, has been adopted in Russia, Ukraine, Poland, Hungary, Slovakia, Vietnam, and some countries in Latin America. 17 INT'L ENVTL REP. (BNA) 133 (1994). The French Ministry of the Environment (Direction de l'eau) is establishing a world-wide network of river basin organizations known as the Reseau international des organismes de bassin. Its purpose is to contribute to institutional development, financial management, programming, and data collection and processing at river basin level. It was founded in May 1994, with the participation of representatives of river basin institutions from Brazil, Chile, Ivory Coast, Spain, France, Hungary, Indonesia, Morocco, Mexico, Poland, the Czech Republic, Romania, Slovakia, Ukraine and Venezuela.
95. See AQUA FORUM, July 1995, at 4 (Newsletter of the International Association for Water Law).
96. Remark of Dante A. Caponera, cited in AQUA FORUM, Feb. 1994, at 1.
97. See TECLAFF, WATER LAW, supra note 66, at 146-58.
98. For example, in Great Britain, the central administration was entrusted with licensing the abstraction of underground water in areas needing water supply protection. Water Act, 1945, 8 & 9 Geo. 6, ch. 42, § 14 (Eng.). Nearly a decade later, in 1964, France subjected the capture and use of ground water to an administrative authorization for the first time. See France's Law of 1964, supra note 48. Among other jurisdictions which began to subject groundwater to permit requirements during the third quarter of this century were Victoria (Australia), the Canary Islands, and Chile. TECLAFF, WATER LAW, supra note 66, at 147, 150, 152.
99. PRESIDENT'S WATER RESOURCES POLICY COMMISSION, A WATER POLICY FOR THE AMERICAN PEOPLE 52 (1950).
100. See, e.g., PA. STAT. ANN. tit. 32, § 815.101 (Purdon 1967) (Delaware River Basin Compact (1961)); PA. STAT. ANN. tit. 32, § 820.1 (Purdon Supp. 1995) (Susquehanna River Basin Compact (1968)).
101. LUDWIK A. TECLAFF, LEGAL AND INSTITUTIONAL RESPONSES TO GROWING WATER DEMAND 31-37 (1977).
102. See, e.g., Kovacs, The Use of Ground-Water Resources in River Basin Development, Working Paper No. 44, UNDP/UN Interregional Seminar on River Basin and Interbasin Development, Budapest, Sept. 16-26 (1975) (on file with the author);
103. International Association for Water Law, 2nd International Conference on Water Law and Administration, Caracas, Feb. 8-14 (1976), Conference Recommendations as Approved by the Plenary Session on Feb. 14, 1976 (on file with the author).
104. National Code of Renewable Natural Resources and Protection of the Environment, 1974, Decreto No. 2811, Dec. 18, 1974, Part III, Diario Oficial, Jan. 2, 1975, at 145 (Colomb.).
105. Id. at art. 314.
106. Id. at art. 313.
107. Article II of the Helsinki Rules defines an international drainage basin as determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus. Helsinki Rules, supra note 58 at 7-8. See also Julio Barberis, The Development of International Law of Transboundary Groundwater, 31 NAT. RESOURCES J. 167, 175-78 (1991).
108. Article 2.2 of the Rules on International Groundwaters adopted at the Seoul Conference of the ILA unequivocally states that a transboundary aquifer that does not contribute water to, or receive water from, the surface waters of an international drainage basin constitutes an international drainage basin for the purpose of the Helsinki Rules. INTERNATIONAL LAW ASSOCIATION, REPORT OF THE SIXTY-SECOND CONFERENCE 259 (1986); see also the commentary on isolated groundwater basins by Professor Robert D. Hayton, as Rapporteur to the International Law Association on The Law of International Groundwater Resources. Id. at 238-50.
109. See Robert D. Hayton & Albert E. Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 29 NAT. RESOURCES J. 664 (1989).
110. Dublin Statement on Water and Sustainable Development, U.N. International Conference on Water and the Environment, Jan. 26-31, 1992,
111. reprinted in 22 ENVTL. POL'Y & L. 54 (1992)
112. [hereinafter Dublin Statement].
113. For a brief history of the controversy, see White, The Great Climate Debate, 263 SCI. AM. 36 (1990).
114. For some authoritative studies, see S. SCHNEIDER, GLOBAL WARMING (1989);
115. CLIMATE INSTITUTE, PREPARING FOR CLIMATE CHANGE, PROCEEDINGS OF THE FIRST NORTH AMERICAN CONFERENCE ON PREPARING FOR CLIMATE CHANGE: A COOPERATIVE APPROACH, OCT. 27-29, 1987 (1988)
116. [hereinafter PREPARING FOR CLIMATE CHANGE];
117. OFFICE OF RESEARCH AND DEVELOPMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY, THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE IN THE UNITED STATES: REPORT TO CONGRESS (J.B. Smith & D. Tirpak eds., 1989)
118. [hereinafter POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE];
119. see also, Nielsen, IT'S OFFICIAL: NOW THE CLIMATE IS REALLY STARTING TO GET WARM, 11 U.S. WATER NEWS 12 (1995) (citing recent research).
120. U.N. RIVER AND LAKE BASIN DEVELOPMENT, supra note 45, at 110.
121. See Maurits la Rivière, Threats to the World's Water, 261 SCI. AM. 80 (1989);
122. Hekstra, Global Warming and Rising Sea Levels; The Policy Implications, 19 ECOLOGIST 4 (1989); Schneider, supra note 90, ch. 6;
123. PREPARING FOR CLIMATE CHANGE, supra note 90, ch. XIH;
124. POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE, supra note 90, ch. 9.
125. They have these powers under their respective interstate compacts. See Delaware River Basin Compact, supra note 80, at art. 10; Susquehanna River Basin Compact, supra note 80, at art. 11.
126. Ludwik A. Teclaff, The River Basin Concept and Global Climate Change, 8 PACE ENVTL. L. REV. 355, 380, 384 (1991)
127. [hereinafter River Basin Concept].
128. See generally DELAWARE RIVER BASIN COMMISSION & U.S. ENVIRONMENTAL PROTECTION AGENCY, GREENHOUSE EFFECT, SEA LEVEL RISE, AND SALINITY IN THE DELAWARE ESTUARY (C. Hull & J. Titus eds. 1986);
129. see also Teclaff, River Basin Concept, supra note 94, at 384-85.
130. See generally D.S. NATIONAL RESEARCH COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS: SCIENCE, TECHNOLOGY, AND PUBLIC POLICY 188-206 (1992)
131. [hereinafter NATIONAL RESEARCH COUNCIL];
132. WETLAND CREATION AND RESTORATION: THE STATUS OF THE SCIENCE xx (Kusler & Kentula eds., 1990);
133. GOLDSMITH & HILDYARD, THE SOCIAL AND ENVIRONMENTAL EFFECTS OF LARGE DAMS (1984).
134. For specific examples, see Kotlyakov, The Aral Sea Basin: A Critical Environmental Zone, 33 ENVIRONMENT 4 (1991);
135. Young, The Troubled Waters of Mono Lake, NAT'L GEOGRAPHIC, Oct. 1981, at 504;
136. Morgan, Transboundary Liability Goes with the Flow? Gasser v. United States: The Use and Misuse of a Treaty, 5 TRANSBOUNDARY RESOURCES REP. 1-2 (1991) (discussing the Colorado);
137. Edward P. Glenn et al., Cienega de Santa Clara; Endangered Wetland in the Colorado River Delta, Sonora, Mexico, 32 NAT. RESOURCES J. 817-(1992);
138. Gilbert F. White, The Environmental Effects of the High Dam at Aswan, 30 ENVIRONMENT 5 (1988);
139. Korn, The Salmon's Last Run, 13 AMICUS J. 30 (1991);
140. Kamto, Fleuves et Lacs Internationaux Africains et Problèmes Ecologiques: Quelques Considérations Juridiques, 21 ENVTL. POL'Y & L. 236 (1991).
141. For an example, see the proposed removal of the Elwha and Glines Canyon dams in the State of Washington under the Elwha River Ecosystem and Fisheries Restoration Act of 1992, Pub. L. No. 102-495, 106 Stat. 3173 (1992), or the unstraightening of Florida's Kissimmee River, given federal authorization by the Water Resources Development Act of 1992. Pub. L. No. 102-580, § 101(8), 106 Stat. 4797, 4802 (1992). It is noteworthy that the Bureau of Reclamation has declared a complete about-face in its policy on dams. According to Bureau Commissioner Daniel P. Beard, "The dam building era is over. Indeed we have almost eliminated structural solutions as a viable option." Daniel P. Beard, Speech given to the American Bar Ass'n Section of Natural Resources, Energy and Environmental Law's San Diego Conference, Feb. 10, 1994, reprinted in WATER LAW: TRENDS, POLICIES, AND PRACTICE 357 (Carr & Crammond eds., 1995). Allowing rivers to meander within their natural flood plains was seriously considered for the Mississippi and tributaries after the great floods of 1993 and has actually been put into effect by the Netherlands government on sections of the Rhine.
142. See Labaton, U.S. Is Considering a 'Revolution' in Flood Control, N.Y. TIMES, Aug. 28, 1993, at 6;
143. Simons, Dutch Do the Unthinkable: Sea is Let In, N.Y. TIMES, Mar. 7, 1993, at 1. However, environmentalists were severely criticized in the Netherlands for advocating this approach after the devastating winter floods of 1995.
144. ST. PETERSBURG TIMES, Feb. 4, 1995, at A2.
145. See, e.g., Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20 ENVTL. L. 811 (1990).
146. See, e.g., the Truckee-Carson Water Rights Settlement. Truckee-Carson Water Rights Settlement Act, Pub. L. No. 101-618, 104 Stat. 3294 (1990).
147. Id.
148. Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600, 4706-31 (1992) (which includes the Central Valley Project Improvement Act (CVPIA)).
149. The two landmark decisions were National Audubon Society v. Superior Court, 658 P. 2d 709 (Cal. 1983), and California Trout Inc. v. Superior Court, 266 Cal. Rptr. 788 (1990). The first invoked the public trust doctrine to challenge Los Angeles' right to divert water from Mono Lake tributaries (diversions which caused great harm to the lake's unique ecological system), the second ordered the city's licenses amended to require release of sufficient water to reestablish and maintain the lake's pre-diversion fisheries. Finally, in September 1994, by the terms of a decision of the State Water Resources Control Board and an accord between the city and several environmental groups, Los Angeles agreed to stop depleting Mono Lake until the lake levels recover and to help restore its ecological balance. For a history of the 16 years of litigation (including interim decisions), see Robie, Mono Lake Dispute Ends With a Whimper, 27-28 ROCKY MTN. MINERAL L. FOUNDATION, WATER LAW NEWSLETTER 1 (1994-1995);
150. Mydans, City of Angels Makes Peace in Water Wars, N. Y. TIMES, Oct. 3, 1994, at A10.
151. SEE LEVELS REFERENCE STUDY BOARD, INTERNATIONAL JOINT COMMISSION, LEVELS REFERENCE STUDY: GREAT LAKES-ST. LAWRENCE RIVER BASIN, FINAL REPORT 35, 39, 46, 65 (1993). Another initiative in the Great Lakes Basin is the 1994 agreement between the federal government of Canada and the Province of Ontario, Part 4 of which makes specific provision for the rehabilitation of ecosystem function and structure of diverse self-sustaining native biological communities in twelve Areas of Concern and other priority degraded areas in the Great Lakes Basin Ecosystem. Agreement Respecting the Great Lakes Basin Ecosystem, Can.-Ont., 1994 [Reference File] INT'L ENV'T REP. (BNA) 31:0651, at :0652.
152. See Thayer Scudder, The Need and Justification for Maintaining Transboundary Flood Regimes: The Africa Case, 31 NAT. RESOURCES J. 75, 100-04 (1991).
153. One example is the commission created by the Fisheries Convention. Fisheries Convention, Mar. 19, 1986, Italy-Switz., Recueil official des lois fédérales 539 (1989) (Switz.), reprinted in STEFANO BURCHI, TREATIES CONCERNING THE NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES-EUROPE 418 (1993)
154. [hereinafter BURCHI, TREATIES: EUROPE]. Another is the Elbe River Commission. See Convention on the International Commission for the Protection of the Elbe, Oct. 8, 1990, at art. 2(j),
155. reprinted in BURCHI, TREATIES: EUROPE, supra at 40.
156. See generally LONG'S PEAK WORKING GROUP ON NATIONAL WATER POLICY, AMERICA'S WATERS: A NEW ERA OF SUSTAINABILITY (1992)
157. (on file with the Natural Resources Law Center, Boulder, Colorado) [hereinafter LONG'S PEAK REPORT].
158. For a discussion of the Report, see Point/Counterpoint: Long's Peak Report: Reforming National Water Policy, 24 ENVTL. L. 123 (1994).
159. LONG'S PEAK REPORT, supra note 106, Recommendation 11, at 8, Recommendations 32, 33 and 35, at 11.
160. For a discussion of this development, see paragraphs 8, 9 and 10 of the section on inland waters, lakes and rivers of the European Conservation Strategy. European Conservation Strategy, Draft Recommendation, Council of Europe, 6th European Ministerial Conference on the Environment, Oct. 11-12, 1990 (adopted by the Ministers),
161. reprinted in 20 ENVTL. POL'Y & L. 243 (1990).
162. See the internal minutes of the Committee, May 8, 1995 (on file with the author).
163. Id. (emphasis added).
164. Report of the United Nations Conference on the Human Environment, U.N. General Assembly, U.N. Doc. A/Conf.48/14 (1972) (Stockholm Report), reprinted in 11 I.L.M. 1416. Recommendation 60 calls for the Secretary-General to arrange for systematic audits of natural resource development projects in representative ecosystems of international significance. Id.
165. Great Lakes Water Quality Agreement, Nov. 22, 1978, U.S.-Can., 30 U.S.T. 1384, T.I.A.S. No. 9257.
166. See Ludwik A. Teclaff & Eileen Teclaff, International Control of Cross-Media Pollution - An Ecosystem Approach, 27 NAT. RESOURCES J. 21, 38-39 (1987);
167. T. COLBORN ET AL., GREAT LAKES, GREAT LEGACY 193-201 (1990);
168. LEVELS REFERENCE STUDY BOARD, supra note 103;
169. C. Jackson, The Great Lakes: Exploring the Ecosystem, in RESOURCE POLITICS, supra note 64, at 30-37;
170. George Francis, Ecosystem Management, 33 NAT. RESOURCES J. 315, 330-40 (1993);
171. Agreement Respecting the Great Lakes Basin Ecosystem, supra note 103; Kidd, Integration Paper prepared for State of the Lakes Ecosystem Conference, Sept. 1994, at 29 (on file with the author).
172. See, e.g., African Ministerial Conference on the Environment, Cairo Programme for African Co-Operation, Dec. 16-18, 1985, reprinted in 16 ENVTL. POL'Y & L. 27, 28 (1986);
173. DEPARTMENT OF WATER IN ENVIRONMENT AND SOCIETY, UNIVERSITY OF LINKOPING, RIVER BASIN STRATEGY (1984) (containing the proceedings of the International Seminar on the Relevance of River Basin Approach for Coordinated Land and Water Conservation and Management, Linköping, Sweden, June 4-8, 1984).
174. For a description of aquatic ecosystems and their components, see NATIONAL RESEARCH COUNCIL, supra note 96, at 178-87;
175. WETLAND CREATION AND RESTORATION: THE STATUS OF THE SCIENCE, supra note 96. In some cases, the word "ecosystem" has been used in a basin context, but without actually identifying it with the basin.
176. See LONG'S PEAK REPORT, supra note 106, Recommendation 11, at 8, Recommendations 32, 35, at 11. On the river basin per se as ecosystem,
177. see Reynolds, River Basin as an Ecosystem, in RIVER BASIN STRATEGY, supra note 114, at 217.
178. Draft Article 20 obligates watercourse states to "protect and preserve the ecosystems of international watercourses." Report of the Commission on the Work of its 46th Session, Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, International Law Commission, U.N. Doc. A/49/10 (1994), reprinted in 24 ENVTL. POL'Y & L. 335, 351 [hereinafter I.L.C. 46th Session].
179. On the potentially narrow interpretation of this wording, see the comments of Okidi and Nanda, referring to a previous draft. Okidi, "Preservation and Protection" Under the 1991 ILC Draft Articles on the Law of International Watercourses, 3 COLO. J. INT'L ENVTL. L. & POL'Y 143, 173 (1992);
180. Ved Nanda, The Law of the Non-Navigational Uses of International Watercourses: Draft Articles on Protection and Preservation of Ecosystems, Harmful Conditions and Emergency Situations, and Protection of Water Installations, 3 COLO. J. INT'L ENVTL. L. & POL'Y 175, 181 (1992).
181. Wafer Series No. 1, Protection of Water Resources and Aquatic Ecosystems, Part One, Guidelines on the Ecosystem Approach in Water Management, Economic Commission for Europe, U.N. Doc. ECE/ENVWA31 (1993)
182. [hereinafter Guidelines: Ecosystem Approach].
183. Id. § 1.
184. Id. § 5.
185. Dublin Statement, supra note 89, at 54.
186. Id. at 55.
187. Id.
188. Protection of the Quality and Supply of Fresh Water Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources, U.N. Conference on Environment and Development, Agenda Item 21, Ch. 10 § 1, at 22, ¶ 19, U.N. Doc. A/Conf.151 /PC/100/Add., reprinted in 1 AGENDA 21 & THE UNCED PROCEEDINGS 513, 519 (N.A. Robinson ed., 1992). Such management requires taking into account the functioning of aquatic ecosystems and giving priority to the satisfaction of basic needs and the safeguarding of ecosystems.
189. Id. at 519, ¶ 20.
190. The first of these objectives is "to promote a dynamic, interactive, iterative and multi-sectoral approach" to management, integrating technological, socioeconomic, environmental and human health considerations. Id. ¶ 20(a). Other objectives address planning, based on community needs, full public participation (including women and indigenous peoples) in policy-making, and strengthening the appropriate institutional, legal and financial mechanisms to "ensure that water policy and its implementation is a catalyst for sustainable social progress and economic growth." Id. ¶ 20(b)-(d). On paper this is remarkably like the valley authority approach to creating all-purpose basin units, but without the valley authority and with the addition of environmental and some sociological concerns.
191. Decisions, U.N. Commission on Sustainable Development, 2nd Sess., U.N. Doc. E/CN/17/1994/L.5 (1994), reprinted in 24 ENVTL. POL'Y & L. 266 (1994).
192. Id. ¶ 7(c).
193. I.L.C. 46th Session, supra note 116, art. 26.2.
194. See Sixth Report on the Law of the Non-Navigational Uses of International Watercourses, International Law Commission, U.N. GAOR, 42d Sess., at 20-21, Draft Article 26.1.(d), U.N. Doc. A/CN.4/427 (1990).
195. See TECLAFF, THE RIVER BASIN, supra note 3, at 124. For a general act consolidating the Commissioners' powers and functions, see Commissioners of Sewers Act, 1532, 23 Hen. 8, ch. 5, Sec. 1 (repealed).
196. For a brief history of the Rhine and Danube commissions, see Ludwik A. Teclaff, Fiat or Custom: The Checkered Development of International Water Law, 31 NAT. RESOURCES J. 45, 50-56 (1991).
197. Some of the conventions merely called for a meeting or meetings of representatives of the parties. See Systematic Index of International Water Resources Treaties, Declarations, Acts and Cases by Basin, U.N. Food and Agriculture Organization, Annex 4 (Legislative Study No. 15), at 124-25 (1978) for treaties of June 30, 1885, and May 18, 1887, on fishing in the Rhine and its tributaries. Other conventions provided for commissions. See Lake Constance convention of July 5, 1893, id. at 144; convention of Apr. 11, 1908, on protection of food fish in frontier waters of the United States and Canada, id. at 172.
198. The texts of the first three conventions are in LEGISLATIVE TEXTS AND TREATY PROVISIONS CONCERNING THE UTILIZATION OF INTERNATIONAL RIVERS FOR OTHER PURPOSES THAN NAVIGATION 393, 397, 403, U.N. Doc. ST/LEG/SER.B/12 (1963). The U.S.-Canadian food fish convention is in 25 Hertslet C.T. 1206 (E).
199. See supra note 34 and accompanying text.
200. See supra note 40 and accompanying text.
201. LUDWIK A. TECLAFF, THE RIVER BASIN IN HISTORY AND LAW 130-43 (1967)
202. [hereinafter TECLAFF, THE RIVER BASIN].
203. For examples of the coordinating and consultative type of institution in the United States, India, Argentina, Australia, Mexico, and Japan, see TECLAFF, THE RIVER BASIN, supra note 136, at 143-49. More powerful bodies include the Delaware and Susquehanna basin commissions, which have both advisory and executive functions, the French basin committees, and the Spanish hydrographic confederations. See PA. STAT. ANN. tit. 32, § 815.101 (Purdon 1967) (Delaware River Basin Compact (1961)); PA. STAT. ANN. tit. 32, § 820.1 (Purdon Supp. 1995) (Susquehanna River Basin Compact (1968)). On the French basin committees, see Law No. 92-3, Jan. 1992, 10 A.L.D. 104 (Feb. 13, 1992), J.O. 187 (Jan. 4, 1992) (Fr.), modifying that country's 1964 law. On the Spanish hydrographic confederations, see Basic Water Act of Aug. 2, 1985, R.A.L. 1985 (Sp.); Royal Decree 927/1988, July 29, 1988, B.O.E. No. 209, Aug. 31, 1988 (Sp.).
204. Although there are a few quite powerful commissions in the United States, most were meant to supplement rather than supplant the general pattern of water management by agencies either of the federal government or of political subdivisions. Interstate compacts have been popular for coordinating the water policies of several states occupying parts of the same river basin. However, a number of them entrust implementation to a meeting of state officials or, if they do provide for commissions, limit those commissions' powers by requiring virtual unanimity on decisions. See U.S. DEPARTMENT OF INTERIOR, DOCUMENTS ON THE USE AND CONTROL OF THE WATERS OF INTERSTATE AND INTERNATIONAL STREAMS (T. Witmer ed., 1956), for the Belle Fourche, La Plata, South Platte, Colorado, Republican, Snake, Canadian, Costilla Creek, Rio Grande, and Upper Colorado compacts.
205. For example, the water basin authorities in England and Wales had their water supply functions privatized and their regulatory functions handed over to a National Rivers Authority, operating with the assistance of ten regional advisory committees. See, e.g., Water Act 1989, ch. 15, arts. 4, 11 (Eng.).
206. See LUDWIK A. TECLAFF, WATER LAW IN HISTORICAL PERSPECTIVE 119-24 (1985)
207. [hereinafter TECLAFF, WATER LAW].
208. See, e.g., the California State Water Project, the Arizona water project, the Israeli National Water Carrier, and the Australian Snowy Mountains project. William E. Warne, California Pioneers New Water Development Concepts, 2 NAT. RESOURCES J. 248 (1962);
209. ISRAEL MINISTRY OF AGRICULTURE, ISRAEL'S WATER ECONOMY (1973);
210. SNOWY MOUNTAINS AUTHORITY, THE SNOWY MOUNTAINS (1963).
211. See, e.g., the Delaware River Basin Commission, created by the Delaware River Basin Compact. 32 PA. STAT. ANN. tit. 32, § 815.101 (Purdon 1967) (Delaware River Basin Compact (1961)).
212. Agreement Regarding Fishing in the Fishing Area of the Naatamo (Neiden) Watercourse, June 9, 1964, Fin.-Nor., 503 U.N.T.S. 205, reprinted in BURCHI, TREATIES: EUROPE, supra note 105, at 165; Fisheries Convention, Mar. 19, 1986, Italy-Switz., Recueil officiel des lois fédérales 539 (1989) (Switz.), reprinted in BURCHI, TREATIES: EUROPE, supra note 105, at 418. The Finnish-Norwegian agreement provides only for consultations between local bailiffs and fishery inspection officials, but the Italian-Swiss convention creates a commission which has power to require the restoration of damaged habitat and the submission of plans for any works which interrupt or modify the natural course of the waters subject to the convention.
213. One commission addressing pollution is the Elbe River Commission, created by the Convention on the International Commission for the Protection of the Elbe, Oct. 8, 1990. See BURCHI, TREATIES: EUROPE, supra note 105, at 40.
214. Two commissions dealing with apportionment are the Permanent Joint Technical Commission for Nile Waters and the Permanent Indus Commission. The former was provided for in the Agreement for the Full Utilization of the Nile Waters, Nov. 8, 1959, United Arab Republic-Sudan, 453 U.N.T.S. 51, the latter by the Indus Waters Treaty, Sept. 19, 1960, India-Pak., 419 U.N.T.S. 126.
215. See, e.g., the Permanent Engineering Board established under the Columbia River Basin Treaty, Jan. 17, 1961, U.S.-Can., 15 U.S.T. 1555, T.I.A.S. No. 5638, 542 U.N.T.S. 244.
216. The International Boundary and Water Commission, United States-Mexico (IBWC), for instance, is basically an engineering body, charged with planning, constructing and operating dams, storage and diversion structures and flood-control works, under the 1944 treaty. See Treaty Respecting Rio Grande, Colorado and Tijuana, U.S.-Mex., Feb. 3, 1944, 59 Stat. 1219 [hereinafter Treaty of 1944]. Its functions have been somewhat enlarged to encompass pollution control by the Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area, Aug. 14, U.S.-Mex., T.I.A.S. No. 10827.
217. One example is the Finnish-Swedish Boundary Rivers Commission, which operates under the Agreement Concerning Frontier Rivers, Sept. 16, 1971, Fin.-Swed., 825 U.N.T.S. 191. Another is the International Boundary and Water Commission, supra, note 147, which has wide-ranging responsibilities, but a very narrow area of jurisdiction.
218. Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki Convention), Mar. 17, 1992, U.N. Doc. E/ECE/1267, Art. 9.5, 31 I.L.M. 1312, reprinted in [Reference File] INT'L. ENV'T REP. (BNA) 41:3051 [hereinafter Helsinki Convention].
219. Agreement Concerning the International Commission for Protection of the Rhine Against Pollution (Berne Agreement), Apr. 29, 1963, U.N. Doc. A/CN.4/274, vol. I, at 128 (German version).
220. The English translation of the text is in A.J. PEASLEE, INTERNATIONAL GOVERNMENT ORGANIZATIONS 430 (rev. 3d ed. 1976).
221. Id. at art. 10. The Protocol of Signature accompanying the Agreement specifies collaboration with the international commissions for the Moselle, Saar, and Lake Constance, as well as with the Central Commission for the Navigation of the Rhine.
222. Its jurisdiction and powers, as originally set forth, were circumscribed by the Boundary Waters Treaty of 1909, Article 2 of which excluded from the definition of boundary waters rivers that flow across the United States-Canada border. Boundary Waters Treaty, Jan. 11, 1909, U.S.-U.K. (Canada), 36 Stat. 2448 (1909).
223. Great-Lakes Water Quality Agreement, U.S.-Can., Apr. 15, 1972, 23 U.S.T. 301, 24 U.S.T. 2268, T.I.A.S. No. 7312, 7747; Great Lakes Water Quality Agreement, U.S.-Can., Nov. 22, 1978, 30 U.S.T. 1384, T.I.A.S. No. 9257. SEE INTERNATIONAL JOINT COMMISSION, REPORT, POLLUTION OF LAKE ERIE, LAKE ONTARIO, AND THE INTERNATIONAL SECTION OF THE ST. LAWRENCE RIVER (1970).
224. See also Leonard B. Dworsky, Ecosystem Management: Great Lakes Perspectives, 33 NAT. RESOURCES J. 347, 349-50 (1993), for a tabulation of events leading to incorporation of the ecosystem approach.
225. These subordinate agencies include the Pollution from Land-Use Activities Reference Group (PLUARG), the Water Quality Board, the Upper Lakes Reference Group, and the Science Advisory Board.
226. Statute of the Coordinating Committee of the Lower Mekong, reprinted in LEGISLATIVE TEXTS AND TREATY PROVISIONS CONCERNING THE UTILIZATION OF INTERNATIONAL RIVERS FOR OTHER PURPOSES THAN NAVIGATION 267-70, U.N. Doc. ST/LEG/SER.B/12 (1963).
227. See TECLAFF, THE RIVER BASIN, supra note 136, at 170-73;
228. G. Radosevich, Implementation: Joint Institutional Management and Remedies in Domestic Tribunals , 3 COLO. J. INT'L ENVTL. L. & POL'Y 261, 263-66 (1992) (articles 26-28, 30-32). The Statute has recently been replaced by a new agreement. Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Cambodia-Laos-Thail.-Vietnam, Apr. 5, 1995, 34 I.L.M. 864 (1995).
229. It has several times revised and updated the original basin plan and principles for utilization of the basin's waters. Radosevich, supra note 155, at 264-65.
230. Id. at 264; see also TECLAFF, THE RIVER BASIN, supra note 136, at 172.
231. Treaty for Amazonian Co-Operation, July 3, 1978, 17 I.L.M. 1045.
232. Id. at art. XXIII.
233. Convention Creating the Niger Basin Authority, Nov. 21, 1980, reprinted in U.N. DEPARTMENT OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, TREATIES CONCERNING THE UTILIZATION OF INTERNATIONAL WATER COURSES FOR OTHER PURPOSES THAN NAVIGATION: AFRICA 56, U.N. Doc. ST/ESA/141 (1984) [hereinafter TREATIES: AFRICA].
234. Agreement Concerning the River Niger Commission, Nov. 25, 1964, 587 U.N.T.S. 8507, at 19, art. 12. The text is also in TREATIES: AFRICA, supra note 160, at 14.
235. See Convention Creating the Organization for the Development of the Senegal Basin (OMVS), Mar. 11, 1972, reprinted in TREATIES: AFRICA, supra note 160, at 21.
236. See id., at arts. 1, 8, 11, 13, 14.
237. See Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, May 28, 1987, 27 I.L.M. 1109, Annex 1, The Zambezi Action Plan (ZACPLAN). The Action Plan covers a huge spectrum of environmental problems, including deforestation and soil erosion, pollution, waterborne diseases, degradation of the natural resource base, flood plain management, and protection of wetlands. Id.
238. See id. Annex 11, §§ 11, 12.
239. See, e.g.. Report of the United Nations Water Conference, Mar del Plata, U.N. Doc. E/CONF.70/29 (1977)
240. [hereinafter Mar del Plata Report].
241. Recommendation D.48(d) exhorts countries to consider "as a matter of urgency and importance the establishment and strengthening of river basin authorities." Id. at 33. See also UNITED NATIONS, ECONOMIC COMMISSION FOR EUROPE, RECOMMENDATION TO ECE GOVERNMENTS CONCERNING RIVER BASIN MANAGEMENT, U.N. Doc. E/ECE/WATER/9/Annex 2, Preamble (1971),
242. reprinted in LAW OF INTERNATIONAL WATER RESOURCES 193 (Caponera comp., 1980) (FAO Legislative Study No. 23),
243. in Guidelines: Ecosystem Approach, supra note 118.
244. See Mar del Plata Report, supra note 166, Resolution VII, at 77 (on river commissions); U.N. DEPT. OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, EXPERIENCES IN THE DEVELOPMENT AND MANAGEMENT OF INTERNATIONAL RIVER AND LAKE BASINS, PROCEEDINGS OF THE UNITED NATIONS INTERREGIONAL MEETING OF INTERNATIONAL RIVER ORGANIZATIONS, DAKAR, SENEGAL, 5-14 MAY 1981, U.N. Doc. ST/ESA/120, 1983 [hereinafter EXPERIENCES];
245. U.N. DEPARTMENT OF TECHNICAL CO-OPERATION FOR DEVELOPMENT, RIVER AND LAKE BASIN DEVELOPMENT, PROCEEDINGS OF THE UNITED NATIONS INTERREGIONAL MEETING ON RIVER AND LAKE BASIN DEVELOPMENT WITH EMPHASIS ON THE AFRICA REGION, ADDIS ABABA, ETHIOPIA, OCT. 10-15, 1988, U.N. Doc. ST/TCD/13, at 74, 95 (1990).
246. See, e.g., Report of the Fifty-Second Conference Held at Helsinki, 1966, at 484, International Law Association (1966),
247. reprinted in ILA, HELSINKI RULES ON THE USES OF THE WATERS OF INTERNATIONAL RIVERS (1967).
248. On voisinage (neighborliness), see E. Kaufmann, Règles générales du droit de la paix, 54 HAGUE ACADÉMIE DE DROIT INTERNATIONAL, RECUEIL DES COURS 390 (1935);
249. Juraj Andrassy, Les relations internationales de voisinage, 79 HAGUE ACADÉMIE DE DROIT INTERNATIONAL, RECUEIL DES COURS 108 (1951).
250. On the community of interests of riparian states, see the River Oder Case, Territorial Jurisdiction of the International Commission of the River Oder, 1929 P.C.I.J. (ser. A) No. 23.
251. For example, it is so spelled out in Art. II of the Boundary Waters Treaty of 1909 between the United States and Great Britain (Canada). See Boundary Waters Treaty, supra, note 152. An example of recent unilateral action was Slovakia's decision to continue construction of the Gabĉikovo dam, despite intense opposition from Hungary, and to divert the Danube to Slovak territory. This matter is now before the International Court of Justice. See Gabĉikovo-Nagymaros Project (Hungary/Slovakia), 1993 I.C.J. Reports 319 (Order of 14 July 1993); see also Documents Concerning the Dispute Between Hungary and the Slovak Republic on the Danube Project, 32 I.L.M. 1247 (1993), especially the Text of Hungarian Declaration Terminating Treaty, id. at 1260. Hungary claims that the barrage is causing and will cause ecological and environmental damage, that diverting the course of the Danube is dangerous, and that it violates Hungary's territorial integrity.
252. For an analysis of national attitudes to the drainage basin approach or attempted substitutes for it, expressed in the United Nations Sixth Committee and the International Law Commission, see J. 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, 306-17 (1992).
253. Examples include the Niger Basin Authority, supra, note 160, the Mekong Committee, supra, note 155, and the entities responsible for carrying out the ZACPLAN for the Zambezi, supra, note 164. The International Joint Commission, Canada-United States, is another institution involved to some extent in land use through its agencies, Pollution from Land-Use Activities Reference Group ("PLUARG"), which has reported on pollution from land-use activities, and the Science Advisory Board, which has reported on nuclear generating stations in the Great Lakes basin and on means for identifying natural heritage areas. T. COLBORN ET AL., GREAT LAKES, GREAT LEGACY 9, 33-35, 42, 61, 147, 195 (1990).
254. There were reportedly some 90 multipartite and bipartite commissions in the late 1970s. Final Report of the Rapporteur to the International Law Commission on the Non-Navigational Uses of International Watercourses, reprinted in 24 ENVTL. POL'Y & L. 367, n.308 (1994), citing International Law Commission Secretariat, Annotated List of Multipartite and Bipartite Commissions Concerned with Non-Navigational Uses of International Watercourses (April 1979, unpublished). At the time that list was being prepared, two new commissions were created in Africa, for the Gambia and Kagera basins. See Treaties: Africa, supra note 160 at 32, 42, 70. They were followed in 1987 by the establishment of coordinating entities for the Zambezi basin under the ZACPLAN. See supra, note 164. More recently, new institutions have been created in Europe for the Elbe, Maas, Scheldt, and Danube rivers.
255. See Convention on the International Commission for the Protection of the Elbe, Oct. 8, 1990, at art. 2(j), reprinted in BURCHI, TREATIES CONCERNING THE NON-NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES-EUROPE 40 (1993); infra note 175 (Maas, Scheldt, and Danube). In Africa, the newest entity is the Namibia-South Africa Permanent Water Commission. See Agreement on the Establishment of a Permanent Water Commission, Namib.-S. Afr., Sept. 14, 1993, 32 I.L.M. 1147 (1993). The Preamble states that the aim of this agreement is to promote regional water resource development on the basis of the Helsinki Rules.
256. The Permanent Joint Technical Commission for Nile Waters, in the lower Nile Basin, and the Technical Committee for the hydrometeorological survey project of the upper Nile basin, have together recommended the formation of a consolidated nine-state Nile basin commission. See EXPERIENCES, supra note 167, at 163, 295-96, 402. The IJC's own studies and recommendations laid the foundation for the basin and ecosystem approach to pollution control in the Great Lakes. See supra, note 153.
257. The framework treaty is the Helsinki Treaty of 1992 for the Protection of Transboundary Watercourses and International Lakes. See supra note 149. Apparently it was the turning point for the signing of treaties on Apr. 26, 1994, establishing the International Maas Commission and the International Scheldt Commission. Agreement on the Protection of the Rivers Meuse and Scheldt, Belg.-Fr.-Neth., Apr. 26, 1994, 34 I.L.M. 851 (1995). These are truly modern agreements, providing not only for pollution control (which might have been the sole consideration had they been signed two decades ago), but also for protection of the North Sea and the river ecosystems. 17 INT'L ENVT. REF. (BNA) 394 (1994). Another recent agreement which owes much to the 1992 Helsinki Treaty is the multilateral Danube River Protection Convention of 1994. See Convention on Cooperation for the Protection and Sustainable Use of the Danube River, June 24, 1994, [Reference File] INT'L ENVTL REP. (BNA) 35:0251 (1996).
258. There is improvement, but also regression, in this region. On the one hand, Israel, Jordan, and the Palestine Liberation Organization, in their peace negotiations, have made significant progress toward resolving their problems in sharing water resources. See Israel-Jordan: Common Agenda for the Bilateral Peace Negotiations, Sept. 14, 1993, 32 I.L.M. 1522 (1993); Israel-Palestine Liberation Organization: Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Annex III, 32 I.L.M. 1525, 1537 (1993); Treaty of Peace, Isr.-Jordan, Oct. 26, 1994, 34 I.L.M. 43 (1995). On the other hand, Sudan made an ominous threat in July 1995 to cut off Nile waters to Egypt. See Walker, Egypt Warns Sudan Over New Threat to Cut Nile Waters, TIMES (London), July 4, 1995, at 11.
259. Possibilities for similar high-handed action exist elsewhere in the region. For recent works on the subject, see Dante A. Caponera, Ugal Aspects of Transboundary River Basins in the Middle East: The Al Asi (Orontes), the Jordan and the Nile, 33 NAT. RESOURCES J. 629 (1993);
260. Eyal Benvenisti & Haim Gvirtzman, Harnessing International Law to Determine Israeli-Palestinian Water Rights: The Mountain Aquifer, 33 NAT. RESOURCES J. 543 (1993);
261. Aaron Wolf, Water for Peace in the Jordan River Watershed, 33 NAT. RESOURCES J. 797 (1993);
262. Tarasofsky, International Law and Water Conflicts in the Middle East, 23 ENVTL. POL'Y & L. 70 (1993);
263. Joffe, The Issue of Water in the Middle East and North Africa, in RESOURCE POLITICS: FRESHWATER AND REGIONAL RELATIONS 65 (Thomas & Howlett eds., 1993);
264. WATER AND PEACE IN THE MIDDLE EAST (Isaac & Shuval eds., 1994) (Studies in Environmental Sciences No. 58).
265. See Garner & Ouellette, Future Shock? The Law of the Colorado River in the Twenty-First Century, 27 ARIZ. STATE L.J. 469 (1995);
266. TECLAFF, WATER LAW, supra note 140, at 228;
267. Carrier, The Colorado: A River Drained Dry, NAT'L GEOGRAPHIC, June 1991, at 4;
268. Edward P. Glenn et al., Cienega de Santa Clara: Endangered Wetland in the Colorado River Delta, Sonora, Mexico, 32 NAT. RESOURCES J. 817 (1992).
269. On the precautionary principle, see, e.g., Hickey & Walker, Refining the Precautionary Principle in International Environmental Law, 14 VA. ENVTL. L. J. 423 (1995).