ILA TO CONSIDER MAJOR REVISION OF THE HELSINKI RULES

AT UPCOMING BI-ANNUAL CONFERENCE

(BERLIN, AUGUST 2004)

The purpose of this Special Issue of AquaForum is to inform members of AIDA of the recent completion of the work undertaken under the leadership of Professor Joseph Dellapenna, Rapporteur, and Dr. Gerhard Loibl, Chairman, of the Water Resources Committee of the International Law Association (ILA) on the revision of the 1966 Helsinki Rules as complemented and supplemented through 1996.

The 1966 Helsinki Rules had been the result of work begun in 1954 by the Rivers Committee, renamed Water Resources Committee following their adoption in 1966 by the ILA. Complementary and Supplementary Rules developed since and until 1996 by the Water Resources Committee have also been adopted by the ILA.

As from 1997, the Water Resources Committee (WRC) embarked on a consolidation of the Helsinki Rules 1966-1996 which resulted in the so-called 1999 Campione Consolidation of the ILA Rules on International Water Resources authored by Professor Charles Bourne, then Chairman of the WRC. During that time, however, substantial changes occurred in the membership of the WRC; some of its older members had passed away and others resigned while members of the defunct ILA Committee on the Environment became new members and opposed the consolidation in favour of a proposed revision of the Helsinki Rules which they considered lacking the requisite environmental dimension.

In the event, the 1999 Campione Consolidation was never formally adopted by the ILA, while work  forged ahead on a proposed revision of the Helsinki Rules  which, in many respects, is at substantial variance with the original Rules as devised by the pre-1999 WRC and approved by the ILA. Eminent members of the pre-1999 WRC were, and some still are, members of AIDA. Other members of AIDA have served as consultants to the Committee, from time to time.

The draft Final Report of the WRC carrying “The International Law Association Rules on Water Resources” will be considered by the ILA at its next conference which will take place in Berlin, Germany, 16-21 August 2004. The draft Final Report can be downloaded from :

http://www.ila-hq.org/html/layout_committee.htm

pp., ‘Committees’, ‘Water Resources Law’.

The most striking features of the proposed new ILA Rules on Water Resources are (a) the expanded coverage of the new Rules, which canvass domestic water resources in addition to transboundary water resources; (b) the enunciation of new and detailed rules drawn from international environmental and human rights law; (c) the equal standing accorded to the cardinal "no harm" and "equitable utilization" rules, in a major departure also from the 1997 UN Convention on the Non-navigational Uses of International Watercourses (which, to this day, is far from entering into force); and (d) the blurred distinction between de lege lata rules and de lege ferenda rules, all proposed rules being cast as legally binding obligations at the present time, in the conviction that they reflect rights and obligations which either have ripened into customary law or will, "in the near future".

The gestation of these proposed new Rules on Water Resources has not been without problems. Significantly, the work of the post-1999 WRC has been marked throughout by resistance from a group of members who never believed in the necessity of re-thinking the Helsinki Rules, and who doubted all along the wisdom of the Committee's direction and the choices it made. As a result, throughout the course of its work, there was division within the WRC. Surprisingly, none of this background is reflected in the draft Final Report of the Committee

We invite our members to take cognizance of the proposed new Rules on Water Resources which are destined to replace the Helsinki and subsequent Rules, 1966-1996. Members who wish to do so are encouraged to send their opinion directly to the Chairman of AIDA via e-Mail at the following address: b.j.wohlwend@bjwconsult.com. Opinions received will be collated for possible publication in a future issue of AquaForum..

                                                                           Bernard J. Wohlwend

                                                                    Chairman of the Executive Council