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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 2 The objects of international law, Ch.5 State territory, Rivers

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 December 2018

Subject(s):
Rivers — Peace treaties

Rivers

Winiarski, Hag R, 45 (1933), iii, pp 72–217 Gidel, Le Régime des fleuves internationaux (1948) Berber, Die Rechtsquellen des internationalen Wassernutzungsrechts (1956) and Rivers in International Law (1959) Verzijl, International Law in Historical Perspective (vol 3, 1970) Baxter, The Law of International Waterways (1964) Wolfrom, L’Utilisation a fins autre que la navigation des eaux des fleuves, lacs et canaux internationaux (1964) Garretson, The Law of International Drainage Basins (1967) Bourne, Can YBIL, 3 (1965), pp 187–264 Les Cours d’eau internationaux, Conference Lagonissi (1966), Dotation Carnegie Colliard, Hag R, 125 (1968), iii, pp 337–442 Koutikov, Hag R, 127 (1969), ii, pp 247–354 Koutikov, Les Cours d’eau internationaux (1967), p 30 Shihata, Revue Egyptienne de droit international (1974), pp 163–71 Cohen, Reflections on International Rivers (1976) Vitanyi, The International Regime of River Navigation (1979) Chauhan, Settlement of International Water Law Disputes in International Drainage Basins (1981) Zacklin and Caflisch (eds), The Legal Regime of International Rivers and Lakes (1981) Kiss (on Rhine-Danube waterway), AFDI, 27 (1981), pp 768–80, and Droit international de l’environment (1989), pp 89–99 Lammers, Pollution of International Watercourses (1984) Sette-Camera, Hag R, 186 (1984), iii, pp 117–218 Teclaff, Water Law in Historical Perspective (1985) McCaffrey, Denv JIL, 17 (1988–89), pp 505–26 Center for Studies and Research of Hague Academy, Selective Bibliography on Rights and Duties of Riparian States of International Rivers (ed Kost, 1990) For Reports of the ILC, see YBILC, ii, for 1963, 1974, 1976, 1979, 1980, 1982, 1983, 1984, 1985, 1986, 1987, 1988 For Reports of the ILA, see 46th Conference (1954), 47th Conference (1956), 48th Conference (1958), 49th Conference (1960), 50th Conference (1962), 51st Conference (1964), 52nd Conference (1966), 53rd Conference (1968), 54th Conference (1970), 55th Conference (1972), 56th Conference (1974), 57th Conference (1976), 58th Conference (1978), 59th Conference (1980), 60th Conference (1982).

§ 175  Rivers as territory of riparian states

Theory and practice agree upon the rule that rivers1 are part of the territory of the riparian state. Consequently, (1) if a river lies wholly, that is, from its source to its mouth, within the boundaries of one and the same state, such state owns it exclusively, the waters of the river and of its mouth being national or internal waters.2 Such rivers may be called national rivers. (2) There are boundary rivers, that is, rivers which separate different states from each other. Boundary rivers belong to the territory of the states they (p. 575) separate, the boundary line3 usually running either through the middle of the river or through the middle of the mid-channel of the river. (3) There are rivers which run successively through two or more states and may therefore be described as pluri-national (or multinational) rivers,4 such rivers belong successively to the territories of the states drained by them. (4) There are some pluri-national rivers which are navigable from the open sea and which, though belonging to the territories of the different states concerned, are nevertheless named international rivers, because freedom of navigation on them in time of peace is recognised by treaty.5

§ 176  Rights of navigation: the Danube

There is no general rule of international law which gives foreign states the right for their public or private vessels to navigate on national rivers. In the absence of commercial or other treaties granting such a right, every state can exclude foreign vessels from its national rivers, or admit them under certain conditions only, such as on payment of dues and the like.1 The teaching of Grotius (Grotius, II, II (xii–xiii) that innocent passage through rivers must be granted has not been accepted in the practice of states.

As regards boundary rivers and pluri-national rivers running through several states, the riparian states can regulate navigation on such parts of these rivers as they own, and they can certainly exclude vessels of non-riparian states altogether, unless prevented by treaties.

Although there is no recognised principle of free navigation on national, boundary, and pluri-national rivers, a movement for the recognition of free navigation on pluri-national rivers started at the beginning of the 19th century.2 (p. 576) Until the French Revolution, the riparian states of pluri-national rivers could, in the absence of special treaties, exclude foreign vessels altogether from those parts which ran through their territory, or admit them under discretionary conditions. Thus, the River Scheldt3 was wholly closed in favour of the Netherlands according to Article 14 of the Peace Treaty of Münster 1648 between the Netherlands and Spain. Later, however, developments in a contrary direction began with a decree of the French Convention, dated 16 November 1792, which opened the Rivers Scheldt and Maas (Meuse) to the vessels of all riparian states. But it was not until the Congress of Vienna4 in 1815 that a principle of free navigation on the international rivers of Europe by merchantmen of not only the riparian but of all states was proclaimed.5 Commissions were to be appointed to this end, and there were also annexed to the Vienna Final Act, particular regulations relative to navigation on the Rivers Scheldt, Meuse, Rhine, and on the navigable tributaries of the Rhine — namely, the Neckar, Maine, and Moselle — although more than 50 years elapsed before free navigation on the Rhine system began to be realised in practice, through the Convention of Mannheim of 17 October 1868. Meanwhile, Article 15 of the Peace Treaty of Paris 1856 declared that the principle of the Vienna Congress regarding free navigation on international rivers for merchantmen of all nations was part of ‘European Public Law’, and guaranteed by the powers.6

(p. 577) The River Danube was of particular importance in the development of European international river law. The Peace Treaty of Paris 1856, by Article 15,7 stipulated that there should be free navigation on ‘the Danube and its Mouths’. A special international organ for the regulation of navigation on the Danube below Isatscha was created, the so-called European Danube Commission.

The Treaties of Peace 1919 and 1920 with Germany, Austria, Bulgaria, and Hungary (1) confirmed the European Commission in the powers it possessed before the First World War8 (the exercise of which had gradually been extended as far upwards as Braila); (2) extended the internationalised stretch of the river upwards as far as Ulm in Germany (including the Rhine-Danube waterway then under construction); and (3) foreshadowed the creation of a new International Commission for the purpose of administering the newly internationalised portion of the Danube. A definitive state of the Danube was established by a Convention9 of 23 July 1921. By this statute the powers of the European Commission were confirmed, and navigation on the Danube was declared to be (p. 578) ‘unrestricted and open to all flags on a footing of complete equality10 over the whole navigable course of the river, that is to say, between Ulm and the Black Sea’.11 The jurisdiction of the International Commission extended from Ulm to Braila, that is, ‘the fluvial Danube’, and of the European Commission from Braila to the Black Sea, that is, ‘the maritime Danube’.12

An agreement signed at Sinai in 1938 by the United Kingdom, France and Roumania, stripped the European Commission of most of its powers and left it mainly an advisory body. The International Commission was dissolved in 1940. The Treaties of Peace 1947 with Bulgaria, Roumania and Hungary13 reiterated the bare principle that navigation on the Danube should be free and open for the nationals, commercial vessels and goods of all states, with equality of port and navigation charges, and conditions for merchant shipping.14 But the restoration of the commissions was postponed pending a new Danube Convention, no agreement having been reached on the question of the details of the regime of internationalisation. A conference to draft the new convention met in 1948 at Belgrade, attended by the Soviet Union, the Ukrainian Soviet Republic, Bulgaria, Roumania, Yugoslavia, Czechoslovakia, Hungary — the seven Danubian states — as well as the United States, the United Kingdom and France.15 The Soviet Union refused to accept that the principle of the freedom of navigation implied the administration of the regime by non-riparian as well as by riparian states; and the Danubian states proceeded in 1949 to set up a system of riparian state control in spite of the objections of the three Western states and of Austria. The new, Belgrade Convention regime,16 created a new, single Danube Commission, more however in the nature of a consultative and coordinating body. It also, in Article 1, reproduced the provisions, summarised above, of the Peace Treaties 1947 with Bulgaria, Hungary and Roumania relating to freedom of navigation on the Danube. The Western states and Austria reserved recognition of the new regime, which they regarded as violating the Peace Treaties, as well as the Danube Convention 1921. Austria, however, acceded to the Belgrade Convention in 1960.

§ 177  Other European rivers after the First World War

The Peace Treaties at the end of the First World War declared a number of European rivers international, (p. 579) and foreshadowed a ‘General Convention’1 which would provide a regime applicable to them. Parts of the following rivers were declared international: the Elbe (Labe), the Ultava (Moldau), the Oder, the Niemen, the Morava (March), the Theiss (Thaya), the Vistula,2 and the Pruth,3 as well as the Danube up to Ulm, including the then projected Rhine-Danube waterway.4 On these waterways the nationals, property, and flags of all states were to be treated on a footing of perfect equality with the nationals, property and flags of the riparian states.5

Of these rivers and parts of rivers, the Elbe was made the subject of a special regime by a Statute of Navigation6 signed on 22 February 1922, which in the main adopted the principles of the Barcelona Convention of 1921 (about to be discussed) as to freedom of navigation and equality of treatment. The Oder7 was placed under an International Commission. The Rhine and Moselle were not made subject to the general provisional regime. The Convention of Mannheim 1868 was to continue for the time being to govern the navigation of the Rhine and Moselle, but subject to important modifications introduced by the Treaty of Peace with Germany.8 In May 19369 a revised Convention (the Act of Strasbourg) (p. 580) regulating the navigation of the Rhine was signed by all the states concerned, with the exception of Holland. But before it entered into force Germany declared on 14 November 1936, that it no longer considered itself bound by the provisions of Part XII of the Treaty of Versailles concerning the Commissions of the Danube, the Rhine, the Elbe, and the Oder.10 Germany also denounced the Convention of Mannheim and notified the cessation of German cooperation in the International River Commissions.11 At the end of the Second World War the situation was complicated by the Allied occupation of Germany. But the Central Commission of the Rhine was eventually reconstituted, with representatives of Belgium, France, the Netherlands, Switzerland and the United Kingdom, and for a time the United States. The Federal Republic of Germany was admitted on 28 June 1950.12 Negotiations for the revision of the Mannheim Convention resulted in the conclusion of a revised Convention for Rhine Navigation of 20 November 1963, which is still, with subsequent amendments, the governing instrument.13

§ 178  Barcelona Convention 1921

In 1921 a conference was summoned under the auspices of the League of Nations to draw up the general convention foreshadowed in the Peace Treaties, and there met at Barcelona the representatives of 40 states, European, America, and Asian (the United States of America, the Argentine Republic, Russia, and Turkey1 being notable absentees), together (p. 581) with delegates from Germany and Hungary in a consultative capacity. This conference produced a Convention and Statute on the Regime of Navigable Waterways of International Concern2 which is now in force for parties. With certain reservations as to cabotage and as to the navigation of warships and other vessels engaged upon public services,3 each of the contracting parties ‘accords free exercise of navigation to the vessels flying the flag of one of the other contracting States on those parts of navigable waterways’ (as defined by the Statute) ‘which may be situated under its sovereignty or authority’ (Article 2).4 In the exercise of this navigation ‘the nationals, property, and flags of all contracting States shall be treated in all respects on a footing of perfect equality’ (Article 4). No dues of any kind may be levied other than equitable dues in the nature of payment for services rendered in maintaining and improving the navigability of the waterway (Article 7). Each riparian state is bound to refrain from measures likely to reduce the facilities for navigation, and undertakes to remove any obstacles and dangers to navigation which may occur (Article 10). In the absence of special conventions making other arrangements, navigable waterways are administered by each of the riparian states under whose authority they may be situated (Article 12). The Statute is about minimum standards, and does not entail the withdrawal or prevent the future grant of any greater facilities for freedom of navigation under conditions consistent with the principle of equality (Article 20). The Statute does not attempt to regulate the rights and duties of belligerents and neutrals in time of war, but nevertheless ‘continues in force in time of war so far as such rights and duties permit’ (Article 15). Disputes, failing settlement by the mediation of the Advisory and Technical Committee of the League Organisation for Communications and Transit or by some other means, were to be referred to the Permanent Court of International Justice (Article 22).

As some of the states wished to go further than the opening of ‘navigable waterways of international concern’ and to open national waterways, an Additional (p. 582) Protocol of the same date was signed and ratified by certain states,5 whereby parties grant to one another, ‘on condition of reciprocity’ and in time of peace, either (a) ‘on all navigable waterways’ (that is, presumably, rivers, canals, and lakes) or6 (b) ‘on all naturally navigable waterways’ (that is, presumably, rivers and lakes) under their sovereignty or authority and accessible to ordinary commercial navigation to and from the sea, perfect equality of treatment for the flags of any signatory state ‘as regards the transport of imports and exports without trans-shipment’.

The Barcelona Convention was intended to become a worldwide regime. Nevertheless, it has not attracted the participation of some major fluvial states, and the principle of free navigation upon rivers — that is, the equal admission of all flags subject only to payment of dues equitably required for maintaining and improving navigation — can hardly yet be described as a recognised rule of customary international law.7

§ 179  Utilisation of the flow of international rivers

International law was at first almost wholly concerned with rights to user of the navigable channels of international rivers; but later it became necessary to find answers also to questions about the user of the waters for other purposes, such as the production of energy, irrigation, and industrial processes with their attendant risks of pollution.1

(p. 583) It is desirable, certainly for the more important rivers, for these questions to be regulated by a particular treaty regime; for only thus is it possible to realise regulation in detail and to match the problems presented by the major river and waterway systems. Several such treaties have been concluded.2

(p. 584) An important example of a treaty regime for the environmental management of an entire river system is the Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, between Botswana, Mozambique, Tanzania, Zambia and Zimbabwe, made at Harare, Zimbabwe, 28 May 1987, and which entered into force on signature. The length of this river system, from its source in the Central African Plateau to the Indian Ocean is some 3,000 km, it drains, together with its tributaries, an area of about 1,300,000 km², and serves a population of the order of 20 million.3

Besides the treaty regimes, there is of course a body of customary law and practice in this matter. Its development has been greatly assisted by the considerable jurisprudence on river law to be found in the decisions of federal courts especially those of the Supreme Court of the United States4 — which have had to face similar problems between the states of the federation. There have also been some international cases.5 The development of the customary law has also had the attention of the reports of learned bodies, especially the Institut de Droit International and the International Law Association.6

In the development of this law, several different general principles or concepts have been appealed to at one time or another. There has been consistent agreement, demonstrated amply in the practice of states, that the use of the waters of international rivers is subject to international law; the former notion7 that the governing principle is that of each state’s sovereignty over the waters in its own territory, probably survives only in the rule that a neighbouring state cannot (p. 585) object to works carried out by another riparian, unless its own interests in the river waters are affected substantially.8 The flow of boundary, and international, rivers is not within the arbitrary power of one of the riparian states, for it is a rule of international law that no state is allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring state. For this reason a state is not only forbidden to stop or divert the flow of a river which runs from its own to a neighbouring state, but likewise to make such use of the water of the river as either causes danger to the neighbouring state or prevent it from making proper use of the flow of the river on its part.9 Nevertheless, the notion that all and any substantial changes in river flow require the actual consent of affected riparians, though at one time much supported, was rejected in the Lake Lanoux case.10 Attempts to construct general principles from notions of prior appropriation, vested private rights, or even abuse of rights,11 though doubtless these are all possibly relevant factors in certain circumstances, also failed. The principle of a ‘community of interest’ in a navigable international river was authoritatively pronounced by the Permanent Court of International Justice in the River Oder case, as also the corollary ‘perfect equality of all riparian States in the user of the whole course of the river’.12 This community of interest has since been placed firmly on the (p. 586) geographical fact of proximity which dictates respect for mutual interests — sic utere tuo ut alienum non laedas.13 A further general principle was ultimately found in the notion of equitable apportionment; which was also the governing principle which had emerged from the jurisprudence of federal courts already referred to;14 though a prior idea is the obligation to negotiate and cooperate with a view to an equitable solution of the common problem.

§ 180  Helsinki Rules

An attempt to state the developed law on the matter was made in the much discussed Helsinki Rules, adopted by the International Law Association in 1966.1 These Rules were said to be ‘general rules of international law … applicable to the use of the waters of an international drainage basin except as may be provided otherwise by convention, agreement or binding custom among basin States’ (Art I); and an international drainage basin was defined as ‘a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus’ (Art II). Article IV then states a general principle that, ‘Each basin State is entitled within its territory, to a reasonable and equitable share2 in the beneficial uses of the waters of an international drainage basin’.3(p. 587)

(p. 588) § 181  Work of the International Law Commission

The use of the concept of the international drainage basin as a basis for a legal regime, as adopted in the Helsinki Rules, ran into difficulties; especially at the deliberations of the International Law Commission and the Sixth Committee of the General Assembly. The later work of the Commission speaks rather of ‘international watercourse systems’.1

On the question of the pollution of international rivers, there is the principle of general international law concerning ‘every State’s obligation not to allow (p. 589) knowingly its territory to be used for acts contrary to the rights of other States’;2 and it would seem reasonable to recognise some obligation, therefore, to negotiate agreements for particular rivers. And although the concept of a drainage basin may sometimes be thought too comprehensive in its potential scope, it is true nevertheless that the Helsinki Rules are to an important extent justified by reason based upon analysis of the questions that in fact arise. But one can only hesitate to assert that there are rules of established customary law dealing with the specific problem of river pollution.3 There are indeed treaty obligations in relation to particular rivers; and the ILC has itself been of late working on the basis of formulating a ‘framework agreement’.4

Footnotes:

For river boundaries, see § 229.

See Art 9 of the Convention on the Law of the Sea 1982.

The Treaties of Peace 1919 with Germany (Art 30), Austria (Art 30), Hungary (Art 30) and Bulgaria (Art 30) provided that in case of boundaries therein defined by a waterway, the terms ‘course’ and ‘channel’ signified (a) in the case of non-navigable rivers, the median line of the waterway or of its principal arm; (b) in the case of navigable rivers, the median line of the principal channel.

Oppenheim used the less than felicitous term, ‘not-national’ rivers; but the editor of the 8th ed of this vol indicated in a note that ‘The alternative term “pluri-national (or multinational)” has certain merits’. It should perhaps be mentioned that these categories are not alternatives and that one river may in parts be a boundary river as well as pluri-national, and indeed international.

The nomenclature here described, of ‘national’, ‘boundary’, ‘pluri-national’, and ‘international’ rivers is Oppenheim’s own. Many writers class as ‘international’ all rivers which separate or traverse different states and thus are of international concern. Oppenheim appeared to reserve the term international for those pluri-national rivers which are subjected to a treaty regime. But whereas he was thinking only of navigational rights secured by treaty, the term would now have to comprise also rivers subject to treaties governing the use of their waters. Hennig, ZI, 36 (1926), pp 100–16, at p 101, states that the first treaty in which rivers were described as ‘international’ was the Treaty of Peace with Germany 1919, pt XII. See also § 178, n 2 for the Barcelona Statute definition of navigable waterways of international concern.

As to the jurisdiction over passing ships see Gidel, Revue critique de droit international, 29 (1934), pp 16 et seq. For an interpretation of a conventional provision as to levying dues, see Pigeon River Improvement, Slide and Boom Co v Charles W Cox (1934), S Ct 361; ZöV, 4 (1934), pp 690, 691.

For an historical sketch see the Advisory Opinion of the Permanent Court on the European Danube Commission (1927), PCIJ, Series B, No 14, at pp 38–41. For the different question of the use of the flow of pluri-national rivers, see § 179.

The Scheldt was subjected to detailed regulation by treaty between Belgium and Holland in 1839 (Martens, NRG, 1st series, 5 (1847), p 294). But many difficult questions remained between the two countries. For a history of the matter, see Verzijl, International Law in Historical Perspective (vol 3, 1970), pp 166–8. On various stages of the question, see Maeterlinck and Bisschop, Grotius Society, 4 (1919), pp 253–95; Omond, ibid, 6 (1921), pp 80–88; Bourquin, RG, 27 (1920), pp 5–28; Grotius Annuaire (1926), pp 84–122. See also Smith, The Economic Uses of International Rivers (1931). For the lower Rhine, see § 177, n 8. See the Judgment of the PCIJ of 28 June 1937, in the dispute between Belgium and Holland concerning the Diversion of Water from the Meuse, PCIJ, Series A/B, No 70; and see Dehousse, RI (Paris), 19 (1937), pp 177–263.

Articles 108–117 of the Final Act of the Vienna Congress; see Martens, NR, 2nd series, 2 (1887), p 427. As to British and American policy on rivers of international concern, see Bacon, BY, 9 (1930), pp 158–170, and ibid, 13 (1932), pp 76–91. As to Finland, see Björksten, Das Wassergebiet Finlands in Völkerrechtlicher Hinsicht (1925). As to Latin-America, see Sosa-Rodriguez, Le Droit fluvial international et les fleuves de l’Amérique latine (1935). As to the Brazilian rivers, see Hill, Diplomatic Relations between the United States and Brazil (1932), pp 214–38.

Article 109 of the Vienna Final Act provided that the rivers in question, throughout their navigable courses, ‘shall be entirely free, and shall not in the matter of commerce be prohibited to anybody, provided that they conform to the regulations regarding the police of this navigation, which shall be drawn up in a manner uniform for all and as favourable as possible to the commerce of all nations’. This, particularly the phrase ‘in the matter of commerce’ (sous le rapport du commerce) was interpreted restrictively, and even as being applicable only to riparian states. See Baxter, The Law of International Waterways (1964), p 111.

For a clear exposition of the historical basis and the rationale of the principle of the freedom of navigation on so-called international rivers see the Judgment of the PCIJ of 10 September 1929, in the case of the Territorial Jurisdiction of the International Commission of the River Oder, PCIJ, Series A, No 23, pp 27, 28.

The idea, however, was also applied in other continents in the latter part of the century. As to African rivers, in particular the Congo and the Niger, The General Act (see Martens, NRG, 2nd series, 10, p 417) of the Congo Conference at Berlin in 1884–85 provided for free navigation for all nations, on a basis of complete equality, on the Rivers Congo and Niger, their tributaries, and to lakes, harbours and inter-connecting canals that might be constructed. The accompanying neutrality regime collapsed in the First World War, and the Peace Conference of 1919 concluded a new Congo Convention of St Germain of 10 September 1919 (TS No 18 (1919), Cmd 477). For an interpretation of these provisions see the decision of the PCIJ in the Oscar Chinn case between Great Britain and Belgium: PCIJ, Series A/B, No 63.

More recently the decolonialisation of Africa has set the problem in a new context, and a number of new African river communities have been established; for the Rivers of Senegal, for the Chad Basin, and for the Niger; see André, Revue juridique et politique 19 (1965), pp 284–310; AFDI, 11 (1965), p 882; ibid, 12 (1966), pp 782–3; ibid, 13 (1967), p 690; Garretson (ed), The Law of International Drainage Basins (1967), pp 131–3; Teclaff, The River Basin in History and Law (1967), pp 174ff; Godana, Africa’s Shared Water Resources (1985).

For treaties stipulating for freedom of navigation for the merchantmen of all states on certain South American rivers (see Moore, i, § 131, pp 639–51, and Hackworth, i, § 88). An arbitration tribunal in Paris, in the case of the boundary dispute between Great Britain and Venezuela, decided in 1899 in favour of freedom of navigation for the merchantmen of all states upon the Rivers Amakourou and Barima (Martens, NRG, 2nd series, 29 (1903), p 587). As to the Treaty of 19 November 1973, between Argentina and Uruguay, governing the maritime parts of the Rio de la Plata, see Basso, El Tratado del Rio de la Plata (1985), and see § 207, n 2.

As to the St Lawrence Seaway, which, with the Gulf of St Lawrence and the Great Lakes, provides the greatest inland-water system in the world, see Whiteman, Digest, 3, p 909; also Baxter, The Law of International Waterways, ch II, Section D; and ICLQ (1960), Special Suppl, Documents on the St Lawrence Seaway (ed Baxter); also Cohen, The Regime of Boundary Waters — the Canadian—United States Experience (1977).

See Martens, NRG, 1st series, 15, p 776. See also Hadsel, Principal Treaties and Conventions relating to the Freedom of Navigation on the Danube, 1815–1907; Department of State, Documents and State Papers (1948–49) (vol I), p 250; Sherman, AJ, 17 (1923), pp 438–59; Hostie, RI, 3rd series, 4 (1923), pp 246–71; Lederle, ZV, 13 (1926), pp 70–73; Blociszewski, Hag R, 12 (1926), i, pp 253–340.

For a clear account of the legal history of the Danube, see especially, Verzijl, International Law in Historical Perspective (vol 3, 1970), pp 143ff; also, Gorove, Law and Politics of the Danube (1964). See also p 55 of the Advisory Opinion referred to at n 2 of this section.

TS No 16 (1922), Cmd 1754; LNTS, 26, p 174; AJ, 17 (1923), Suppl, pp 13–27. For the agreement of 28 June 1932, between Yugoslavia, Roumania and the International Commission of the Danube for the setting up of special services at the Iron Gates, see Hudson, Legislation, vi, p 47.

For the modus vivendi and Declaration of 25 June 1933, concerning the Jurisdiction of the European Commission of the Danube between Galatz and Braila, see PCIJ, Series E, No 9, p 115, and No 10, p 91. And see Hudson, Legislation, v, p 806, for the Declaration of 5 December 1930. See also the Arrangement and Final Protocol of 18 August 1938, Misc No 1 (1939), Cmd 5946.

10  Subject to a limited reservation of cabotage to riparian states by Art 22.

11  See Bacon, AJ, 31 (1937), pp 414–30; Auburtin, ZöV, 9 (1939), pp 338–54.

12  In 1927 the PCIJ gave an Advisory Opinion upon the powers of the European Commission and of Roumania respectively in regard to the section of the maritime Danube between Braila and Galatz, and other matters: PCIJ, Series B, No 14.

13  Articles 34, 36 and 38 respectively; see UNTS, 41 and 42.

14  The principle of equality did not apply to traffic between ports of the same state (so-called petit cabotage). See also Wehle, AJ, 40 (1946), pp 100–20.

15  Italy, Belgium and Greece were not invited although Art 42 of the 1856 Treaty had provided that all signatories should be invited to any conference revising the Convention.

16  See UNTS, 33, p 181. Also Kunz, ‘The Danube Regime and the Belgrade Conference’, AJ, 43 (1949), pp 104–13; Sinclair, ‘The Danube Conference of 1948’, BY, 25 (1948), pp 253–61; Seidl-Hohenveldern, ‘Die Belgrade Donaukonvention von 1948’, Archiv des Völkerrechts, 7 (1958), pp 398–404; Imbert, ‘Le Régime juridique actuel du Danube’, RG, 55 (1951), pp 73–94; Bokor-Szegö, ‘La Convention de Belgrade et le régime du Danube’, AFDI, 8 (1962), pp 192–205. See RG, 64 (1960), p 619 for accession of Austria to the Belgrade Convention.

Germany, Austria, Bulgaria and Hungary agreed to accede to this projected convention. See Treaty of Peace 1919 with Germany, Art 338; with Austria, Art 299; with Bulgaria, Art 227; with Hungary, Art 276; see Wehberg, Die Fortbildung des Flussschiffahrtsrechts im Versailler Friedensvertrag (1919).

Article 18 of the Treaty of 28 June 1919, between the Allied and Associated Powers and Poland, by applying to the Vistula (together with the Bug and the Narev) the regime contained in Arts 332–337 of the Treaty of Peace with Germany pending the conclusion of a general convention, by implication declares the Vistula international; Libera, Le Régime juridique de la Vistule et du Niémen (1929).

Fauchille, para 528 (13).

‘And all navigable parts of these river systems which provide more than one State with access to the sea, with or without transhipment from one vessel to another, together with lateral canals and channels constructed either to duplicate or to improve naturally navigable sections of the river systems, or to connect two naturally navigable sections of the same river.’ See Treaty of Peace 1919 with Germany, Art 331; with Austria, Art 291; with Poland, Art 18; with Roumania, Art 16. See Kiss, AFDI, 27 (1981), pp 768–80 and Droit international de l’environnement (1989), pp 189–99; also Jacqué, on the Danube Commission after the Convention of 1948, AFDI, 27 (1981), pp 747–67.

See, for example, Treaty of Peace 1919 with Germany, Art 332.

TS No 3 (1923), Cmd 1833; AJ, 17 (1923), Suppl, pp 227–42. The Elbe came, of course, under the general rules of Vienna and a Commission was appointed as early as 1821, but freedom was still in practice limited to riparian states. For details see Verzijl, International Law in Historical Perspective (vol 3, 1970), pp 162–4.

Verzijl, op cit, pp 164–6.

See Arts 354–62; the text is in BFSP, 18 (1830–31), p 1076; Charles de Visscher, RI, 3rd series, 1 (1920), pp 80–85; Hennig, Rheinschiffahrt und Versailler Frieden (1921), and ZI, 29 (1921), pp 20–26; Borel, BY, 2 (1921–22), pp 75–89; Chamberlain, The Regime of the International Rivers: Danube and Rhine (1923), pp 137–283; Niboyet, RG, 30 (1923), pp 5–33; Lederle, ZV, 13 (1926), pp 73–76; Hostie, Hag R, 28 (1929), iii, pp 105–229; and for the adhesion of Holland to the modification made by the Treaty of Peace with Germany see two protocols of 21 January 1921, and 29 March 1923: LNTS, 20, p 112. See also Vomhoff, Zur Revision der Mannheimer Rheinschiffahrtsakte (1927); Strauss, Les Juridictions en droit fluvial rhénan (1930); Sause, Die völkerrechtliche Stellung des Rheine (1931); Krause, Die internationalen Stromschiffahrtskommissionen (1931); Telders, Der Kampf um die Rheinschiffahrtsakte (1934); Van Eysinga, La Commission centrale pour la Navigation du Rhin (1935); Hostie, Hag R, 28 (1929), iii, pp 109–225; Corthésy, RG, 37 (1930), pp 62–95 (with a bibliography); Lederle, ZV, 20 (1936), pp 65–80; Biays, RG, 56 (1952), pp 233–78.

Hudson, Legislation, vii, p 290.

10  For the text of the Note see ZV, 21 (1937), pp 111–13. For the British attitude see Mr Eden’s statement in the House of Commons on 16 November 1936: Parliamentary Debates (Commons), vol 317, cols 1334–5. See also Documents (1936), pp 282–6. Germany also denounced the modus vivendi of 4 May 1936, which was to have brought into force certain of the provisions of the Strasbourg Convention. The Netherlands protested. See Martens, NR, 3rd series, 36 (1939), p 800.

For a German view, see Totzek, Das Wesen und die innere Berechtigung der Strominternationalisierung (1933); Otto, Das Wesen und die innere Berechtigung der Internationalisierung der Ströme unter besonderer Berücksichtigung der Bestimmungen des Versailler Friedensvertrages (1934).

11  For decisions of Dutch courts holding that the revised Convention of Mannheim could not be denounced unilaterally, see The Golden River v The Wilhelmina, ILR, 17 (1950), p 354; Swiss Corpn Tanutra v Nederlandsche Rijnvaartvereeniging, ILR, 20 (1953), p 164; Nederlandsche Rijnvaartvereeniging v Damco Scheepvaart Maatschappij, ILR, 21 (1954), p 276. For further Dutch cases interpreting the principle of freedom of navigation on the Rhine under the Revised Act of Mannheim 1868–1922, see Shipbuilders ‘De Hoop’ v Netherlands (1974), and Public Prosecutor v JO (1979), ILR, 74, pp 127–30; Sliedrecht Insurance v Netherlands, ILR, 18 (1951), p 84; Boon & Chantiers Naval du Rupel v Netherlands, ILR, 19 (1952), p 149, S Ct.

12  For the Rhine Commission, see Blays, RG, 56 (1952), p 223. On jurisdiction over Rhine navigation, see The Watergeus v The Wilcor, ILR, 24 (1957), p 172. See Frigerio v Federal Department of Transport (1968), ILR, 72, p 679, for decision of Swiss Federal Tribunal that a Federal law requiring a German boat owner to have a concession to operate on part of the Rhine, was invalid because contrary to the Convention of Mannheim 1868 and the Baden-Switzerland Convention on Rhine Navigation 1879.

See also Kraus and Scheuner, Rechtsfragen der Rheinschiffahrt (1957).

13  See Additional Protocols: TS No 86 (1975), Cmnd 6175; Misc No 16 (1981), Cmnd 8309; TS No 53 (1982), Cmnd 8719; Misc No 7 (1990), Cm 987 (being Additional Protocol No 4 of 1989).

Which, however, by Art 101 of the Treaty of Lausanne of 1923 agreed to accede to the Barcelona Convention on Navigable Waterways.

Clearly a more comprehensive class than international rivers. The Barcelona Statute on the Regime of Navigable Waterways of International Concern, defined them as ‘all parts which are naturally navigable to and from the sea of a waterway which in its course, naturally navigable to and from the sea, separates or traverses different States and also any part of any other waterway naturally navigable to and from the sea, which connects with the sea a waterway naturally navigable which separates or traverses different States’ — see Baxter, The Law of International Waterways (1964), at p 20 for a critique.

See LNTS, 7, p 35; TS No 28 (1923), Cmd 1193; AJ, 18 (1924), Suppl, pp 151–65; League of Nations Publication, Barcelona Conference, Verbatim Records and Texts relating to the Convention on the Regime of Navigable Waterways of International Concern (1921); Alvarez, Travaux de l’Académie des Sciences morales et politiques, 18 (1921); Toulmin, BY, 3 (1922–23), pp 167–78; Hostie, RI, 3rd series, 2 (1921), pp 532–67; Dupuis, Hag R (1924), i, pp 248–62. The depositary is now the UN. Of the original parties, India denounced the convention in 1956, and Malawi in 1964.

See Art 17 of the Statute.

For a convenient summary of the different categories of ‘navigable waterways of international concern’, see Verzijl, International Law in Historical Perspective (vol 3, 1970), pp 122–5. The principal distinction is between those waterways for which there is a commission and those for which there is not.

On the functions and competence of International River Commissions, see Den Breejen v Lloyd Schleppschiffahrt AG, ILR, 24 (1957), p 97.

Including the UK as to ‘all navigable waterways’. See LNTS, 7, p 65; Martens, NRG, 3rd series, 18 (1922), p 709; TS No 28 (1923); BFSP, 116 (1922), p 541; Cmd 1193.

States must declare on signing whether they accept alternative (a) or the more limited alternative (b).

But see the Helsinki Rules (ILA, Report of the 52nd Conference (1966)), which in ch IV sets out the ‘rules’ governing rights of riparian states, to navigation on international rivers, but states that ‘international law accords no rights to non-riparian basin States to use rivers or lakes for navigation’ (p 506). See in particular Art XIV of the Rules:

Article XIV 

“Free navigation”, as the term is used in this Chapter, includes the following freedom for vessels of a riparian State on a basis of equality:

(a)  freedom of movement on the entire navigable course of the river or lake;

(b)  freedom to enter ports and to make use of plants and docks; and

(c)  freedom to transport goods and passengers, either directly or through trans-shipment, between the territory of one riparian State and the territory of another riparian State and between the territory of a riparian State and the open sea.’

A conference on the unification of river laws was held at Geneva in 1930. It adopted: (1) Convention on the Registration of Inland Navigation Vessels, Rights in rem over Such Vessels, and Other Cognate Questions: Doc Conf UDF 58 (1); Hudson, Legislation, v, p 822; Paunesco, L’Unification internationale des privilèges et hypothèques en droit maritime et en droit fluvial (1933); (2) Convention on Administrative Measures for Attesting the Rights of Inland Navigation Vessels to a Flag: Doc Conf UDF 59 (1); Hudson, Legislation, v, p 848; (3) Convention for the Unification of Certain Rules Concerning Collisions in Inland Navigation; Doc Conf UDF 57 (1); Hudson, Legislation, v, p 8151; Kuhn, AJ, 26 (1932), pp 121–4. See also Convention on the Measurement of Vessels Employed in Inland Navigation of 27 November 1925: LNTS, 67, p 63; Hudson, Legislation, iii, p 1808.

The classic work here is H A Smith, The Economic Use of International Rivers (1931). See also Sauser-Hall, Hag R, 83 (1953), ii, pp 465–586; Eagleton, Can Bar Rev, 33 (1955), pp 1018–34; Hirsch, AJ, 50 (1956), pp 81–100 for the question in the Middle East; and generally Lador-Lederer, Friedenswarte, 53 (1956), pp 225–44; Berber, Die Rechtsquellen des internationalen Wassernutzungsrechts (1956); Bourne, Can YBIL, 3 (1965), pp 187–264; also Andrassy, Revue Egyptienne de Droit International, 16 (1960), pp 23–40; also Annuaire, 48 (1959), pp 131–358; for Res of Institute of International Law, see Salzburg Rules Annuaire, 49 (1961), pp 84–192; Aréchaga, Inter-Amer Law Rev, 2 (1960), p 329. See also ILA, Report of 55th Conference (1972), pp 22ff, on water resources law, and in particular, pp 43ff on flood control. See Annuaire, 49 (1961), ii, p 381. Also Witmer (ed), Documents on the Use and Control of the Waters of Interstate and International Streams (US Govt Printing Office, 1956). On pollution see Sette-Camara, Hag R, 186 (1984), iii, pp 117–218.

On convention river law generally, see Hirsh, AJ, 50 (1956), p 81; Berber, Rivers in International Law (1959); Michael, Nat Res Lawyer, 7 (1974), pp 45–56; Garretson, Hayton and Olmstead (eds), The Law of International Drainage Basins (1967).

For the Nile see Agreement Regarding the Utilisation of the Waters of the Nile of 8 November 1959 between the United Arab Republic and Sudan, RG, 64 (1960), pp 83 and 878. For earlier agreements (including 1902 between Great Britain and Ethiopia, BFSP, 95 (1901–2), p 467), see Whiteman, Digest, 3, pp 1002ff.; also Parry, BDIL, 26, p 721. Articles include Batstone, ICLQ, 8 (1959), p 523; C A Pompe in Symbolae Verzijl (1958), pp 275–94; Bardonnet, Annales malgaches (1964).

For the Columbia River, see Columbia River Development Treaty 1961, between Canada and the USA; DS Bull, 44 (1961), p 234. See Bourne, Can Bar Rev, 37 (1959), p 444; Cohen, ibid, 36 (1958), pp 25–41; Krutilla, The Columbia River Treaty (1967); Cohen, McGill, LJ, 8 (1962), pp 212–19.

For the Indus, see Treaty of 1960, between India, Pakistan, and the International Bank for Reconstruction and Development (which financed the compensation for Pakistan), UNTS, 419, p 125 and AJ, 55 (1961), p 797; Berber, Indian Year Book of International Affairs, 6 (1957), p 46; Knauth, AS Proceedings, 54 (1960), p 134; Laylin, ibid, p 144; Rousseau, RG, 65 (1961), p 364.

For other treaties, see Smith, The Economic Use of International Rivers (1931), pp 159–216.

A Convention Relative to the Development of Hydraulic Power Affecting more than One State was signed at Geneva on 9 December 1930. This contained an undertaking by parties to enter into negotiations with a view to the conclusion of agreements regulating such works: LNTS, 36, p 76, and TS No 26 (1925); AJ, 20 (1926), Suppl, pp 145–52.

For the Nile, see Tripartite Treaty of Great Britain, France, Italy, of 1906, Hertslet, The Map of Africa by Treaty, 11, No 102; Report of the Nile Commission (1926); BFSP, 130 (1929), p 130; Nile Waters Agreement (1929) (Cmd 3348); Exchanges of Notes, UK and Egypt, about construction of Owen Falls Dam, 16 July 1952, and 5 January 1953, UN Legislative Texts 12, p 114; also Agreement between United Arab Republic and Republic of Sudan, for full utilisation of Nile waters, Cairo, 8 November 1959, ibid, 34, p 143. See also C A Pompe in Symbolae Verzijl (1958), pp 275–94; Batstone, ICLQ, 8 (1959), pp 523–58; and Keller, The Nile Waters Question in view of the Nile Agreement of 1959 (1966).

See also the Treaty of 1973 between Brazil and Paraguay concerning the ‘hydro-electric utilization of the water resources of the Parana River owned in condominium by the two countries’, for the Itaipu hydraulic scheme, UNTS, 923 (1974), pp 92–110.

For the Amazon Basin Treaty 1978, see RG, 83 (1979), p 485; Caubet, AFDI, 30 (1984), pp 803–18.

For the Ganges, see Hassan, Harv ILJ (1978), pp 708–25; and Ganges Waters Agreement 1978, ILM, 17 (1978), p 103. For Indian rivers generally, see Hussain, Indian LJ, 17 (1977), pp 43–51.

For Lake Chad Basin, see Sand, ZöV, 34 (1974), pp 52–82.

For Mekong River system, see Halbertsma, Neth IL Rev, 34 (1987), pp 25–53.

Major judicial decisions on the use of the flow of rivers include, Diversion of Water from the River Meuse, Netherlands v Belgium (1937), PCIJ, Series A/B, No 70; Lac Lanoux Case, France v Spain (1957), AJ, 53 (1959), p 156; see also § 124, n 12.

For a full, selective bibliography of writings on particular rivers, see the Hague Academy ‘selective bibliography’ on Rights and Duties of Riparian States of International Rivers (1990), pp 52–84.

For text, commentary and details, see ILM, 27 (1988), pp 1109–43. The Harare Conference was convened within the UNEP.

For an Agreement between Argentina, Brazil and Paraguay on Paraná River Projects, of 19 October 1979, see ILM, 19 (1980), p 615.

For an Agreement between Bangladesh and India, of 5 November 1977, on sharing the Ganges Waters, see ILM, 17 (1978), p 103.

For the utilisation of the waters of the Nile, Niger and Senegal River systems, see Godana, Africa’s Shared Water Resources (1985).

Kansas v Colorado (1907) 206 US 46; New York v Illinois (1927) 274 US 488; Connecticut v Massachusetts (1931) 282 US 660; 26 AJ (1932), p 163; New Jersey v New York (1931) 283 US 336; Arizona v California (1931) 283 US 423; (1936) 298 US 558; Colorado v Kansas (1943) 320 US 383; Nebraska v Wyoming (1945) 325 US 589. Also Württemberg and Prussia v Baden, AD, 4 (1927–28), p 128. See also, Alstyne, Calif Law Rev, 48 (1960), p 6.

Lake Lanoux case (Award of 16 November 1957), ILR, 24 (1957), p 101, also AJ, 53 (1959), p 156.

See also Report of the Nile Commission (1925), BFSP, 130 (1929).

1911 Madrid Declaration of Institut de Droit International (Annuaire, 24 (1911), p 365); 1961 Salzburg Resolution of the Institut de Droit International (Annuaire, 49 (1961), ii, p 381; Professor Andrassy was the special rapporteur). For problems of pollution of rivers and lakes, see Report of Professor Salmon, Annuaire, I (1979, Athens), pp 194–380; 1933 Montevideo Declaration of the 7th Pan-American Conference (AJ, 28 (1934), Suppl, p 59; 1957 Buenos Aires Resolution of the Inter-American Bar Association (Proceedings, 10 (1957), p 82); 1958 New York Resolution of the International Law Association (ILA, Report of 48th Conference, at pp viii-x).

For Helsinki Rules of the International Law Association, see § 180.

See the 1895 Opinion of Attorney-General Harman of the US, where Mexican farmers had suffered injury by reasons of diversions of water from the Rio Grande within the US, ‘the rules, principles, and precedents of international law impose no liability or obligation upon the United States’, and that the Mexican claim was ‘entirely inconsistent with the sovereignty of the United States over its national domain’ (US Opinions of Attorney-General, 21 (1893–97), p 274).

See Lake Lanoux Case, ILR, 24 (1957), p 101; Württemberg and Prussia v Baden, AD, 4 (1927–28), p 128; Kansas v Colorado (1907) 206 US 46; Missouri v Illinois (1906) 200 US 496, 521; Connecticut v Massachusetts (1931) 282 US 660.

See the 8th ed of this volume at § 178. As early as 1923, a Convention Relative to the Development of Hydraulic Power Affecting more than One State was signed at Geneva on 9 December. While not affecting the right of each state, to carry out upon its own territory operations for the development of hydraulic power, and without imposing upon any state the duty to take part in joint operations partly on its own territory and partly on the territory of another state or to submit to operations on the territory of another state which might cause serious prejudice to its neighbours, it provided that the states concerned should enter into negotiations with a view to the conclusion of agreements which would allow such operations to be executed and regulate the situation created by them: see LNTS, 36, p 76, and AJ, 20 (1926), Suppl, pp 145–52. See also Resolution of Seventh Pan-American Conference of December 1933, AJ, 28 (1934), Suppl, pp 59–60.

10  ILR, 24 (1957), p 101. Lake Lanoux is in France but is also the source of the Carol River which runs into Spain. France proposed to divert some of the water into another river basin to increase the head of water for an hydro-electric power plant. Spain argued, even after France undertook to return an equivalent volume of water into the river, that the works could not lawfully be carried out without Spain’s consent. The matter was governed by a treaty. But the Court’s rejection of the French argument was in general terms; ‘the rule that States may utilize the hydraulic power of international water-courses only on condition of a prior agreement between the interested States cannot be established as a custom, even less as a general principle of law’ (ibid, p 130); and see AJ, 53 (1959), pp 156–71. See also § 124, n 12.

11  In the 8th ed of this vol, at p 346, it was said in regard to abuse of rights, ‘The duty of the State not to interfere with the flow of a river to the detriment of other riparian States has its source in the same principle.’

It should be noted that in 1970 the UN General Assembly gave the ILC a remit to study the non-navigational uses of international watercourses: UN Doc A/CN 4/245, pp 141–5.

12  See case concerning the Territorial Jurisdiction of the International Commission of the River Oder, Judgment No 16 (1929), PCIJ, Series A, No 23, p 27: ‘This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the use of the whole course of the river and the exclusion of any preferential privilege of any one riparian in relation to the others.’

13  See especially Andrassy, Hag R, 79 (1951 ), ii, pp 73–182 — where the principle, though it emerged in relation to rivers, is said to be a general one. See also Institut de Droit International, Annuaire, 24 (1911), pp 365ff; and Annuaire, 49 (1961), ii (Salzburg session), pp 84ff. The problem of the non-navigational uses of international watercourses was referred to the ILC in GA Res 3315 (XXIX) of 14 December 1974.

14  See Kansas v Colorado (1907) 206 US 46; Missouri v Illinois (1906) 200 US 496; H A Smith, The Economic Use of International Rivers (1931); Sauser-Hall, Hag R, 83 (1953), ii, p 471; Andrassy, Hag R, 79 (1951) ii, p 77; see also 1957 Buenos Aires Resolution of the Inter-American Bar Association (Proceedings, 10 (1957), p 82); 1961 Salzburg Resolution of the Institut de Droit International ‘on the Utilization of Non-Maritime International Waters (except for Navigation)’ (see n 5) and the ILA Helsinki Rules cited below. For its relation to prior appropriation, see especially, Wyoming v Colorado (1922) 259 US 419. On diversion of waters and equitable apportionment, see Manner in Liber Amicorum for Lord Wilberforce (1987), pp 53–9.

See ILA, Report of the 52nd Conference (1966), held at Helsinki, pp 484–94. It should be noted that the report states not only the rules, but also has a most valuable commentary on each rule; and that the rules deal also (pp 494–533) with other aspects of river law, viz navigation, pollution, timber floating, and the prevention and settlement of disputes. The Helsinki Rules were also published by the ILA as a separate booklet (1967); materials used are set out in Garretson, Hayton and Olmstead (eds), The Law of International Drainage Basins (1967).

On pollution of rivers, see Lester, AJ, 52 (1963), p 828.

For the origins of the idea of equitable utilisation and the importance of the hydrological unity of the basin, see Hartig, Ein neuer Ausgangspunkt für internationale wassenrechtliche Regelungen: das Kohärnzprinzip, Wasser u Energiewirtschaft (1958); and see Garretson, Hayton and Olmstead (eds), Law of International Drainage Basins (1967). See also Hussain, Indian JIL, 17 (1977), pp 43–51 (on inter-state rivers in India).

It goes on in Article V:

(1)  What is a reasonable and equitable share within the meaning of Article IV is to be determined in the light of all the relevant factors in each particular case … [these relevant factors being set out in the succeeding articles].

(2)  Relevant factors which are to be considered include, but are not limited to:

(a)  the geography of the basin, including in particular the extent of the drainage area in the territory of each basin State;

(b)  the hydrology of the basin, including in particular the contribution of water by each basin State;

(c)  the climate affecting the basin;

(d)  the past utilization of the waters of the basin, including in particular existing utilization;

(e)  the economic and social needs of each basin State;

(f)  the population dependent on the waters of the basin in each basin State;

(g)  the comparative costs of alternative means of satisfying the economic and social needs of each basin State;

(h)  the availability of other resources;

(i)  the avoidance of unnecessary waste in the utilization of waters of the basin;

(j)  the practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and

(k)  the degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State.

(3)  The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

Article VI 

A use or category of uses is not entitled to any inherent preference over any other use or category of uses.

Article VII 

A basin State may not be denied the present reasonable use of the waters of an international drainage basin to reserve for a co-basin State a future use of such waters.

Article VIII 

1. An existing reasonable use may continue in operation unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use.

2.

(a)  A use that is in fact operational is deemed to have been an existing use from the time of the initiation of construction directly related to the use or, where such construction is not required, the undertaking of comparable acts of actual implementation.

(b)  Such a use continues to be an existing use until such time as it is discontinued with the intention that it be abandoned.

3. A use will not be deemed an existing use if at the time of becoming operational it is incompatible with an already existing reasonable use.’

But see now also the draft articles and discussions of the ILC on ‘non-navigational uses of international watercourses’ (see § 181, n 1).

Article 6 

Equitable and reasonable utilization and participation

1. Watercourse States shall in their respective territories utilize an international watercourse [system] in an equitable and reasonable manner. In particular, an international watercourse [system] shall be used and developed by watercourse States with a view to attaining optimum utilization thereof and benefits therefrom consistent with adequate protection of the international watercourse [system].

2. Watercourse States shall participate in the use, development and protection of an international watercourse [system] in an equitable and reasonable manner. Such participation includes both the right to utilize the international watercourse [system] as provided in paragraph 1 of this article and the duty to co-operate in the protection and development thereof, as provided in Article…

Article 7 

Factors relevant to equitable and reasonable utilization

1. Utilization of an international watercourse [system] in an equitable and reasonable manner within the meaning of Article 6 requires taking into account all relevant factors and circumstances, including:

(a)  geographic, hydrographic, hydrological, climatic and other factors of a natural character;

(b)  the social and economic needs of the watercourse States concerned;

(c)  the effects of the use or uses of an international watercourse [system] in one watercourse State on other watercourse States;

(d)  existing and potential uses of the international watercourse [system];

(e)  conservation, protection, development and economy of use of the water resources of the international watercourse [system] and the costs of measures taken to that effect;

(f)  the availability of alternatives, of corresponding value, to a particular planned or existing use.

2. In the application of Article 6 or paragraph 1 of the present article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of co-operation.’

The ILC started work on ‘Legal Problems Relating to the Non-Navigational Uses of International Watercourses’ in 1974, in response to GA Res 2669 (XXV) of 8 December 1970, under Kearney as Rapporteur. Subsequent rapporteurs have been Schwebel, Evensen and McCaffrey.

The discussions showed that the term ‘international drainage basin’ was capable of being variously understood — or misunderstood; some spoke of it as referring to a physical situation, or hydrographical problem; some thought of it as a juristic concept or general principle; some thought of it as a political device; some thought of it as only the title of the Commission’s task in respect of rivers. The debate certainly illustrated the dangers of trying to deduce legal rules from a supposed general principle instead of proceeding from specific problem to specific problem.

On the drainage basin idea, see Bourne in Canadian Perspectives on International Law and Organisations (1974); Barberis, AFDI, 33 (1987), pp 129–62; Dupuy (on Itaipu question between Argentina and Brazil), AFDI, 24 (1978), pp 866–89; for fuller list, see Hague Academy Bibliography (1990) on Rights and Duties of Riparian States of International Rivers, pp 24–7.

See Report of the ILC (1989), pp 334–60. A note (p 353) suggested:

‘A watercourse system is formed of hydrographic components such as rivers, lakes, canals, glaciers and ground water constituting by virtue of their physical relationship a unitary whole; thus, any use affecting waters in one part of the system may affect waters in another part.

An “international watercourse system” is a watercourse system, components of which are situated in two or more States.

To the extent that parts of the waters in one State are not affected by or do not affect uses of waters in another State, they shall not be treated as being included in the international watercourse system. Thus, to the extent that the uses of the waters of the system have an effect on one another, to that extent the system is international, but only to that extent; accordingly, there is not an absolute, but a relative, international character of the watercourse.’

See, however, Report A/46/405 of 11 Sept 1991 for draft articles, which abandon relativity.

ICJ Rep (1949), p 4, at p 22. There is also the Trail Smelter case (Whiteman, Digest, 6, p 256). On Rhine pollution, see Kiss, AFDI, 29 (1983), pp 773–85.

Judge Sette-Camara, in his Hague lectures (Hag R, 186 (1984), iii, pp 117–218, at p 198), says indeed: ‘In the course of the present study we have seen that there is no rule of customary international law prohibiting pollution of international rivers’. But see also Hague, Studies and Research Centre Brochure on Transfrontier Pollution (1975), and the Salmon Report, Annuaire, 58(1) (1979), pp 194–380; and ibid, ii, 104–203.

See also Caflisch, La Suisse et la protection des eaux douces dans la cadre du droit international (1976); Kiss and Lambrechts, AFDI, 15 (1969), pp 718–36; Kiss in The Structure and Process of International Law (1983), pp 1069–93; Lammers, CML Rev (1986), pp 486–9; Lester, AJ, 57 (1963), pp 823–53. On marine pollution from rivers, see ILA, Report of the 55th Conference (1972), pp 97–106 (paper by Cuperus); Kwiatkowska, Ocean Development and International Law, 14 (1984), pp 315–35.

See now 1991 draft articles (A/46/405, 11 Sept), articles 3 and 4.