32
4 Laws of Transboundary Water Governance
territorial integrity”. Contrary to the previous one, it favours downstream states by
way of stipulating a right to demand the continuation of the natural flow of an international river into their territories. Such demand is often linked to historic appropriations. This theory has, too, been rightly criticised—like the Harmon-doctrine—for it
allocates rights without imposing corresponding obligations, favouring one-sidedly
lower basin states (Allouche 2005).
The two extreme concepts have been consistently rejected by recent state practice
and general international water law, even though a handful of countries continue to
advocate them with a view to justifying their hegemonic use of complex international
river systems (e.g. Turkey’s claim of absolute territorial sovereignty over its sections
of the Tigris and Euphrates rivers or Egypt’s demands on historic allocations) (Salman
2009).
4.2.1.2 Moderate Principles
The third early concept of transboundary water governance: the “limited territorial
sovereignty/integrity” doctrine, curtails the excesses of the previous principles by
asserting that every riparian has an equal right to use an international watercourse.
At the same time, all states in the basin remain under the duty not to cause significant
harm to fellow basin states (Allouche 2005). Out of all early principles the limited
territorial sovereignty/integrity concept has gained the widest endorsement for it
encompasses the principles of equitable and reasonable utilisation, no-harm and
cooperation principles, i.e. the foundations of contemporary international water law
(see Sect. 4.2.2).
Mention also must be made of the concept of the “community of riparian states”.
This concept envisions international river basins as highly integrated and cooperative communities of states where the benefits and the burdens of the management
of the shared resource are not allocated along a rudimentary upstream-downstream
dichotomy. Rather, basin states are expected to cooperate on a multitude of water
management issues with a view to maximising the collective good of the river
(Allouche 2005). The concept was accorded an early authoritative endorsement in
the above-mentioned River Oder case by the Permanent Court of International Justice in 1929. Despite its somewhat idealistic approach the idea received fresh support
by the International Court of Justice in 1997 in the Gabˇ cíkovo-Nagymaros case in
which the ICJ recognised the validity of the “community of interest” concept to all
uses of international rivers.
8 Some authors argue that such “community spirit” of
riparian states also permeates the EU’s core water legislation, the Water Framework
Directive (Moellenkamp 2007).
8 Case Concerning the Gabˇ cíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement, ICJ
Reports 1997, 7.
4 Laws of Transboundary Water Governance
territorial integrity”. Contrary to the previous one, it favours downstream states by
way of stipulating a right to demand the continuation of the natural flow of an international river into their territories. Such demand is often linked to historic appropriations. This theory has, too, been rightly criticised—like the Harmon-doctrine—for it
allocates rights without imposing corresponding obligations, favouring one-sidedly
lower basin states (Allouche 2005).
The two extreme concepts have been consistently rejected by recent state practice
and general international water law, even though a handful of countries continue to
advocate them with a view to justifying their hegemonic use of complex international
river systems (e.g. Turkey’s claim of absolute territorial sovereignty over its sections
of the Tigris and Euphrates rivers or Egypt’s demands on historic allocations) (Salman
2009).
4.2.1.2 Moderate Principles
The third early concept of transboundary water governance: the “limited territorial
sovereignty/integrity” doctrine, curtails the excesses of the previous principles by
asserting that every riparian has an equal right to use an international watercourse.
At the same time, all states in the basin remain under the duty not to cause significant
harm to fellow basin states (Allouche 2005). Out of all early principles the limited
territorial sovereignty/integrity concept has gained the widest endorsement for it
encompasses the principles of equitable and reasonable utilisation, no-harm and
cooperation principles, i.e. the foundations of contemporary international water law
(see Sect. 4.2.2).
Mention also must be made of the concept of the “community of riparian states”.
This concept envisions international river basins as highly integrated and cooperative communities of states where the benefits and the burdens of the management
of the shared resource are not allocated along a rudimentary upstream-downstream
dichotomy. Rather, basin states are expected to cooperate on a multitude of water
management issues with a view to maximising the collective good of the river
(Allouche 2005). The concept was accorded an early authoritative endorsement in
the above-mentioned River Oder case by the Permanent Court of International Justice in 1929. Despite its somewhat idealistic approach the idea received fresh support
by the International Court of Justice in 1997 in the Gabˇ cíkovo-Nagymaros case in
which the ICJ recognised the validity of the “community of interest” concept to all
uses of international rivers.
8 Some authors argue that such “community spirit” of
riparian states also permeates the EU’s core water legislation, the Water Framework
Directive (Moellenkamp 2007).
8 Case Concerning the Gabˇ cíkovo-Nagymaros Project (Hungary v. Slovakia), Judgement, ICJ
Reports 1997, 7.