4.2 International Water Law Today
31
4.2 International Water Law Today
4.2.1 Sources and Principles
Today, the use and protection of shared watercourses is governed by a number of fundamental principles rooted in general international law, two global legal instruments
that lay down general cooperation frameworks for transboundary river basins—the
1997 UN Watercourses Convention and the 1992 UNECE Water Convention
7 —as
well as the considerable jurisprudence of the International Court of Justice and other
international courts and tribunals (Salman 2009). Most of daily cross-border water
management, however, takes place under the vast body of regional, basin and bilateral treaties that regulate co-riparian relations at various levels of detail. Indeed, the
latter provides the real skeleton of transboundary water cooperation as the rather general nature of international water law and the lack of a robust supranational enforcement framework often creates situations where the solemn principles enshrined in
the UN conventions provide very little guidance for countries to manage complicated
intra-basin relations (Delli Priscoli and Wolf 2009).
There appears to be scholarly consensus on the fact that the contemporary law
of international watercourses is based on three core principles: equitable and reasonable utilisation, the prevention of significant (transboundary) harm and the prior
notification of planned measures. While no formal hierarchy exists among these principles, certain authors are nevertheless of the view that the equitable and reasonable
utilisation principle enjoys prominence in international water law (McCaffrey 2015).
4.2.1.1 The Beginning: Early Extreme Doctrines
Today’s principles of international water law have evolved in the past two centuries
out of conflicting doctrines on state conduct concerning the permissible margin of
sovereign action over shared natural resources. The first such fundamental concept
is the so-called “absolute territorial sovereignty” or “Harmon” doctrine. It advocates the unlimited freedom of a state to exploit the waters of international rivers
flowing through its territory, suggesting that states are not bound by international
legal obligations whatsoever in relation to such water resources (Dinar 2008). In
other words, as the international river forms part of the public domain of the state
concerned it may dispose of the water in its territory as it sees fit. A lower riparian
cannot thus demand the continued free and uninterrupted flow of water from upper
basin states. Historically, the absolute sovereignty doctrine has been advocated by
upstream regional powers in defence of a free hand approach over their section of
international rivers (Allouche 2005). The second such concept is known as “absolute
7 Convention on the Protection and Use of Transboundary Watercourses and Lakes, Helsinki, 17
March 1992, Convention on the Law of Non-navigational Uses of International Watercourses, New
York, 21 May 1997.
31
4.2 International Water Law Today
4.2.1 Sources and Principles
Today, the use and protection of shared watercourses is governed by a number of fundamental principles rooted in general international law, two global legal instruments
that lay down general cooperation frameworks for transboundary river basins—the
1997 UN Watercourses Convention and the 1992 UNECE Water Convention
7 —as
well as the considerable jurisprudence of the International Court of Justice and other
international courts and tribunals (Salman 2009). Most of daily cross-border water
management, however, takes place under the vast body of regional, basin and bilateral treaties that regulate co-riparian relations at various levels of detail. Indeed, the
latter provides the real skeleton of transboundary water cooperation as the rather general nature of international water law and the lack of a robust supranational enforcement framework often creates situations where the solemn principles enshrined in
the UN conventions provide very little guidance for countries to manage complicated
intra-basin relations (Delli Priscoli and Wolf 2009).
There appears to be scholarly consensus on the fact that the contemporary law
of international watercourses is based on three core principles: equitable and reasonable utilisation, the prevention of significant (transboundary) harm and the prior
notification of planned measures. While no formal hierarchy exists among these principles, certain authors are nevertheless of the view that the equitable and reasonable
utilisation principle enjoys prominence in international water law (McCaffrey 2015).
4.2.1.1 The Beginning: Early Extreme Doctrines
Today’s principles of international water law have evolved in the past two centuries
out of conflicting doctrines on state conduct concerning the permissible margin of
sovereign action over shared natural resources. The first such fundamental concept
is the so-called “absolute territorial sovereignty” or “Harmon” doctrine. It advocates the unlimited freedom of a state to exploit the waters of international rivers
flowing through its territory, suggesting that states are not bound by international
legal obligations whatsoever in relation to such water resources (Dinar 2008). In
other words, as the international river forms part of the public domain of the state
concerned it may dispose of the water in its territory as it sees fit. A lower riparian
cannot thus demand the continued free and uninterrupted flow of water from upper
basin states. Historically, the absolute sovereignty doctrine has been advocated by
upstream regional powers in defence of a free hand approach over their section of
international rivers (Allouche 2005). The second such concept is known as “absolute
7 Convention on the Protection and Use of Transboundary Watercourses and Lakes, Helsinki, 17
March 1992, Convention on the Law of Non-navigational Uses of International Watercourses, New
York, 21 May 1997.