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Procedure in the Development of International Drainage Basins: The Duty to Consult and to Negotiate

Published online by Cambridge University Press:  09 March 2016

G. B. Bourne
G. B. Bourne*
Affiliation:
University of British Columbia
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Extract

International Drainage Basin disputes, like other disputes, may be settled in three ways: by agreement of the parties, reached after consultation and negotiation and perhaps aided by the mediation and conciliation of third parties; by submission to third party determination; and by the use of force, whether it takes the form of self-help by one of the parties to the dispute or of collective action under Chapter VII of the United Nations Charter. Those who study international water resources problems usually conclude that these disputes are best resolved in the first of the three ways outlined, namely by agreements between the interested co-basin states. They do so not simply because voluntarily accepted solutions are likely to be more satisfactory and enduring, but because each drainage basin has its own distinctive characteristics and its problems, being peculiar to it, can be solved only by the adoption of a special regime. They therefore recommend that co-basin states should try to reconcile their conflicts of interest in the development of a drainage basin by consultation and negotiation and by any other means, such as through the good offices of third parties, leading to agreement. Indeed, some go further and assert that international law imposes an obligation on co-basin states to do so.

Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 10 , 1973 , pp. 212 - 234
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1973

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References

1 Some of the other ways of settling these disputes have been discussed by the author elsewhere: see Bourne, C.B., “Mediation, Conciliation and Adjudication in the Settlement of International Drainage Basin Disputes,” 9 Canadian Yearbook of International Law 114–58 (1971).Google Scholar

2 36 L.N.T.S. 77.

3 Sevette, , Legal Aspects of Hydro-Electric Development of Rivers and Lakes of Common Interest, U.N. Doc. No. E/ECE/136, at 153–54 (1952).Google Scholar

4 Declaration of the Seventh Pan-American Conference on the Industrial and Agricultural Use of International Rivers adopted at Montevideo on December 24, 1933, in 28 Am. J. Int’l L., Supp., 59–60 (1934).

5 O.A.S. Off. Ree, OEA/Ser. I/VI. 2 (English), CIJ-79, at 4, 7, 13–14, 20–21.

6 10 Inter-American Bar Association, Proceedings, 82 (1957).

7 American Bar Association, Proceedings, 1959, at 128 (American Bar Center, Chicago).

8 Resolution on the Utilization of Non-maritime International Waters (except for Navigation), adopted by the Institute of International Law at its Session at Salzburg (September 4–12, 1961), 49 Annuaire de l’Institut de Droit International, Tome II, 381–84 (1961).

9 Ibid., 92, 148; and 48 Annuaire de l’Institut de Droit International, Tome I, 199–202, 333–34 (1959). For the different view of the International Court of Justice, see infra, 219–20.

10 48 Annuaire de l’Institut de Droit International, Tome I, 200 (1959).

11 For a discussion of this, see supra note 1, at 145–58.

12 U.N. Doc. E/ECE/EP/147.

13 For Principle No. VI of the Dubrovnik Resolution, see Report of the Fort) Seventh Conference of the International Law Association Held at Dubrovnil August 26 – September 1, 1956, at xi (1957).

14 Helsinki Rules on the Uses of the Waters of International Rivers, in Report of the Fifty-Second Conference of the International Law Association Held c Helsinki, August 14–20, 1966, at 486, 488 (1967). Article XXX is as follows “In case of a dispute between States as to their legal rights or other interest: … they should seek a solution by negotiation.” See also Article XXV, whic is as follows: “Co-riparian States of a watercourse which is, or is to be use for floating timber should negotiate in order to come to an agreement goverr ing the administrative regime of floating. …”

15 This rule accords with the view of Mr. Anthony Lester: see his article on “Pollution,” in Garretson, , Hayton, and Olmstead, (eds.), The Law of International Drainage Basins 89, 113 (1967).Google Scholar

16 Supra note 14, at 503.

17 Ibid., 504.

18 Smith, , The Economic Uses of International Rivers 152–53 (1931).Google Scholar

19 Sevette, op. cit. supra note 3, at 311.

20 Ibid.

21 Berber, , Rivers in International Law 270 (1959).Google Scholar

22 J. D. Chapman (ed.), The International River Basin (Proceedings of a Seminar on the Development and Administration of the International River Basin held under the auspices of the Regional Training Centre for United Nations Fellows, University of British Columbia) 24–25 (1963).

23 For a list of participants, see ibid., xiv-xvi.

24 Griffin, , Legal Aspects of the Use of Systems of International Waters. Memorandum of the State Department, S. Doc. No. 118, 85th Cong., 2nd Sess., at 91 (1958).Google Scholar

25 Külz, Helmut R., “Further Water Disputes between India and Pakistan,” 18 Int’l & Comp. L.Q. 734 (1969).Google Scholar

26 24 I.L.R. 101, 131–32 (1959).

27 Ibid., 128.

28 Ibid., 129–30.

29 Ibid., 132.

30 [1969] I.G.J. Rep. 3, 46–47, 53–54.

31 The settlement of the dispute between India and Pakistan over the Indus River by treaty is perhaps the best example of this.

32 For a discussion of Jordan River development, see Doherty, Kathryn B., “Jordan Waters Conflict,” Int’l Concil., No. 553 (May 1965), at 23–30.Google Scholar

33 A discussion of the salient features of the Chicago diversion is found in Smith, op. cit supra note 18, at 43–54. A briefer comment on it is in Austin, “Canadian-United States Practice and Theory Respecting the International Law of International Rivers: A Study of the History and Influence of the Harmon Doctrine,” 37 Can. Bar Rev. 393, 416–17 (1959). On the exclusion of this diversion from the operation of the Boundary Waters Treaty, see Griffin, op. cit. supra note 24, at 41–42, 48. For some of the Canadian protests, see the texts of exchanges between the Canadian and United States governments when legislation was before Congress to increase the amount of water diverted: 11 External Aff. 324–26 (1959). For a more recent statement of Canada’s position, see the evidence of Mr. Max Wershof, Q.C., Assistant Under Secretary of State and Legal Adviser, Department of External Affairs, in Minutes of Proceedings and Evidence, H.C. Standing Committee on Mines, Forests and Waters, October 29, 1964, at 36. For a comment on the recent decision of the Supreme Court of the United States on the Chicago diversion, see Piper, Don C., “International Law as Environment for Municipal Litigation: The Chicago Diversion Cases,” 62 Am. J. Int’l L. 451 (1968).CrossRefGoogle Scholar

34 See a report on this in the Karachi newspaper, Dawn, December 15, 1967. See also Helmut R. Külz, supra note 25, at 719–27, and Dixit, R.K., “IndoPakistan talks Farakka Barrage and Related Matters,” 9 Indian J. Int’l L. 215 (1969).Google Scholar

35 Baxter, R.R., “The Indus Basin,” in Garretson, , Hayton, and Olmstead, (eds.), op. cit supra note 15, at 451–52.Google Scholar

36 United Nations Legislation Series, Legislation, Texts and Treaty Provisions Concerning the Utilization of International Rivers for Other Purposes than Navigation, U.N. Doc. No. ST/LEG/SER.B/12.

37 Of these treaties, two were made between 1863 and 1866, four between 1913 and 1929, and ten between 1946 and 1961. See ibid., 92, 139, 161, 213, 215, 311, 479, 514, 552, 673–74, 710, 760 802, 863, 872 and 931; also see Garretson, Hayton and Olmstead (eds.), op. cit supra note 15, at 379.

38 Of these treaties, two were made in the nineteenth century, five between 1920 and 1935, and eleven between 1950 and 1961. For examples, see op. cit. supra note 36, at 164, 283, 286, 294, 441, 458, 465, 476, 479, 483, 555, 558, 712, 758, 802 and 830.

39 These treaties are too numerous to list here; however, since they constitute nearly one-third of the treaties included in the volume referred to at supra note 36, examples of them can be found there readily.

40 Garretson, Hayton and Olmstead (eds.), op. cit supra note 15, at 396–97.

41 The text of this treaty can be found in 9 Annuaire Francais de Droit International 887–89 (1963).

42 For a discussion of this (see Berber, , Rivers in International Law 128–37.Google Scholar Cf. Griffin, op. cit. supra note 24, at 63; he wrote there: “It is accepted legal doctrine that the existence of customary rules of international law, i.e., of practices accepted as law, may be inferred from similar provisions in a number of treaties.”

43 [1957] I.C.J. Rep. 9 53. In the North Sea Continental Shelf, Judgment, [1969] I.C.J. Rep. 3, 46–47, the International Court of Justice accepted this view; it based the equitable principles for delimiting the continental shelf between adjacent states on “a foundation of very general precepts of justice and good faith.”

44 [1959] I. C. J. Rep. 6, 113.

45 Supra note 26, at 128, 130, 132 and 139.

46 Ibid., 130.

47 Ibid., 132, 139.

48 Ibid., 139.

49 [1969] I.G.J. Rep. 3, 47.

50 Supra note 26, at 128.

51 Supra note 26, at 130. See also ibid., 128 and 132.

52 P.C.I.J., Ser. A/B, No. 42, at 116 (1931).

53 [1950] I. C. J. Rep. 128, 139. The Court said: “The parties must be free to accept or reject the terms of a contemplated agreement. No party can impose its terms on the other party.”

54 See the Report of Mr. H. Lauterpacht, Special Rapporteur on the Law of Treaties, to the International Law Commission, [1953] Yearbook of the International Law Commission, Vol. II, at 97–98, fn. 11.

55 Ibid., 98.

56 [1955] I. C. J. Rep. 67, 120.

57 Supra note 26, at 141.

58 Supra note 54, at 97.

59 [1957] I. C. J. Rep. 9, at 52.

60 Ibid., 53.

61 See Fawcett, , “The Legal Character of International Agreements,” 30 Brit. Yb. Int’l L. 381, 396 and 398 (1953).Google Scholar

62 Supra note 2.

63 It has been contended elsewhere that international law requires a state to give notice of proposed works and utilizations of waters to co-basin states and to give information about them, but only when such works and utilizations might cause serious injury to co-basin states : see Bourne, C.B., “Procedure in the Development of International Drainage Basins: Notice and Exchange of Information,” 22 U. of T. L.J. 172, 175–76, 205 (1972).CrossRefGoogle Scholar One could not justify the proposition that the duty to consult and negotiate arises in circumstances that would not give rise to the duty to give notice and exchange information, that is to say, when no injury or only minimal injury would be caused to co-basin states by the proposed work or utilization.

64 Ibid., 172–206.