30
4 Laws of Transboundary Water Governance
Development of Hydraulic Power Affecting More Than One State
3 addressed a nonnavigational issue per se, yet it never played any significant role in the development
of the emerging principles of international water law (Salman 2009).
Following World War II non-navigational uses of transboundary basins have
grown in importance in view of the multiplication of new and competing demands
for water by agriculture, industrial, urban users, etc. (Allouche 2005). Yet, it was
not the riparian governments concerned or international organisations who were the
drivers behind the development of the relevant international norms. Rather, they
evolved incrementally through the work of two international legal associations and
the jurisprudence of international courts and tribunals. Particularly critical in this
process were two arbitral awards and a judgement by the International Court of
Justice: the 1941 Trail Smelter Arbitration,
4 the 1949 Corfu Channel case
5 and the
1957 Lake Lanoux Arbitration.
6 The Trail Smelter case established the principle that
no state can cause or permit its territory to cause serious environmental damage to
another state. The Corfu Channel case confirmed the international legal responsibility of states for acts that occur in contravention of international law within their
territory and result in damage to another states. Finally, the Lake Lanoux Arbitration
concluded that the rights of downstream riparian states must be respected and its
interests be taken into account by upstream users in the development of a shared
waters.
Equally important was the contribution of two international scholarly bodies, the
Institute of International Law (IIL) and the International Law Association (ILA). The
IIL had been active on the subject of non-navigational uses of international water
since the early twentieth century. Its main contribution was its landmark Madrid Declaration that laid down the “no harm” principle, a cornerstone of today’s international
water law as early as in 1911 (IIL 1911). The ILA started to work on transboundary
water governance only in the 1950s, though its influence turned out to be even more
important in the progressive development of international water law. In 1966 the
ILA adopted the so-called Helsinki Rules on the Uses of the Waters of International
Rivers whose foundational concept was the principle of equitable utilisation (ILA
1966). Soon after their issuance the Helsinki Rules were seen as the most authoritative set of rules concerning the use and protection of international watercourses
and gradually became accepted by the international community as reflecting customary international law (Salman 2009; Bruhács 2011). In recognition of the work of
these academic bodies the preamble to the 1997 UN Watercourses Convention pays
a special tribute for their critical contribution “to the codification and progressive
development” of international freshwater law. An updated and extended version of
the Helsinki Rules were adopted by the ILA in 2004 under the title of the Berlin
Rules on Water Resources (ILA 2004).
3 General Convention Relating to the Development of Hydraulic Power Affecting More Than One
State, Geneva, 9 December 1923.
4 Trail Smelter Arbitration (United States v. Canada) (1938, 1941) 3 RIAA 1905.
5 Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, 4.
6 Lake Lanoux Arbitration (France v. Spain) (1957) RIAA 281.
4 Laws of Transboundary Water Governance
Development of Hydraulic Power Affecting More Than One State
3 addressed a nonnavigational issue per se, yet it never played any significant role in the development
of the emerging principles of international water law (Salman 2009).
Following World War II non-navigational uses of transboundary basins have
grown in importance in view of the multiplication of new and competing demands
for water by agriculture, industrial, urban users, etc. (Allouche 2005). Yet, it was
not the riparian governments concerned or international organisations who were the
drivers behind the development of the relevant international norms. Rather, they
evolved incrementally through the work of two international legal associations and
the jurisprudence of international courts and tribunals. Particularly critical in this
process were two arbitral awards and a judgement by the International Court of
Justice: the 1941 Trail Smelter Arbitration,
4 the 1949 Corfu Channel case
5 and the
1957 Lake Lanoux Arbitration.
6 The Trail Smelter case established the principle that
no state can cause or permit its territory to cause serious environmental damage to
another state. The Corfu Channel case confirmed the international legal responsibility of states for acts that occur in contravention of international law within their
territory and result in damage to another states. Finally, the Lake Lanoux Arbitration
concluded that the rights of downstream riparian states must be respected and its
interests be taken into account by upstream users in the development of a shared
waters.
Equally important was the contribution of two international scholarly bodies, the
Institute of International Law (IIL) and the International Law Association (ILA). The
IIL had been active on the subject of non-navigational uses of international water
since the early twentieth century. Its main contribution was its landmark Madrid Declaration that laid down the “no harm” principle, a cornerstone of today’s international
water law as early as in 1911 (IIL 1911). The ILA started to work on transboundary
water governance only in the 1950s, though its influence turned out to be even more
important in the progressive development of international water law. In 1966 the
ILA adopted the so-called Helsinki Rules on the Uses of the Waters of International
Rivers whose foundational concept was the principle of equitable utilisation (ILA
1966). Soon after their issuance the Helsinki Rules were seen as the most authoritative set of rules concerning the use and protection of international watercourses
and gradually became accepted by the international community as reflecting customary international law (Salman 2009; Bruhács 2011). In recognition of the work of
these academic bodies the preamble to the 1997 UN Watercourses Convention pays
a special tribute for their critical contribution “to the codification and progressive
development” of international freshwater law. An updated and extended version of
the Helsinki Rules were adopted by the ILA in 2004 under the title of the Berlin
Rules on Water Resources (ILA 2004).
3 General Convention Relating to the Development of Hydraulic Power Affecting More Than One
State, Geneva, 9 December 1923.
4 Trail Smelter Arbitration (United States v. Canada) (1938, 1941) 3 RIAA 1905.
5 Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, 4.
6 Lake Lanoux Arbitration (France v. Spain) (1957) RIAA 281.