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ILA TO CONSIDER MAJOR REVISION OF THE HELSINKI RULES
AT UPCOMING BI-ANNUAL CONFERENCE
(BERLIN, AUGUST 2004)
As announced in our Newsletter No. 30 of June
2004, it has been the intention of your Executive Council to collect
the views of our members on the proposed revision, by the current
Water Resources Committee of the International Law Association
(ILA), of the 1966 Helsinki Rules as complemented and supplemented
through 1996.
Thanks to the dedication and editorial efforts
of our distinguished member, Charles Bourne, Professor Emeritus of
Law at Vancouver University, Canada, and former Chairman of the ILA
Water Resources Committee, 1991-2000, it has now been possible to
collate the comments received into a Dissenting Opinion which will
be presented at the forthcoming ILA Conference in Berlin, Germany,
in late August.
May Professor Charles Bourne and all those who have favoured us with
their individual contributions to find here the expression of our
deepfelt appreciation.
Bernard J. Wohlwend
Chairman of the Executive Council
ILA Berlin Conference 2004 - Water Resources Committee Report
DISSENTING OPINION
We, members of the ILA Water
Resources Committee (WRC), do not agree with many aspects of the
report that has been submitted by that Committee for consideration
at the ILA Berlin Conference of 2004. The reasons for our doing so
are set out below.
1. Scope of Study
The
ILA began its study of the international law governing transboundary
waters in 1954 and has continued this study to the present day. The
recent work has been done by the WRC that was established in 1991
with the mandate to review the law as defined in the 1966 Helsinki
Rules and subsequent resolutions of the ILA, to harmonize the
provisions of these documents, and to revise them as deemed
necessary. The report submitted by the WRC for consideration of the
Berlin Conference, however, shows clearly that the WRC has not
limited its work to international waters but has extended it to
national waters. This extension of its mandate was not authorized
by the appropriate body of the ILA and is therefore ultra vires.
2. Effect of Inclusion of National Waters
Apart from the question of the legitimacy of the
WRC’s decision to include purely domestic waters within its terms of
reference, the attempt to merge the rules pertaining to national and
international waters has not been satisfactory. Stefano Burchi, one
of our group, in a letter to the Rapporteur, explained his objection
to the inclusion of national waters in the work of the WRC as
follows:
“The separation … between the transboundary …
and ‘all’ waters is perforce imperfect, as remnants of transboundary
waters are to be found scattered in other chapters of the new rules.
There persists as a result an impression of lumping together quite
different things … the concept of ‘equitabilty’ has historically
been used in reference to transboundary waters, while the composite
triad equity/efficiency/sustainability permeates much current
domestic water law thinking and legislative reform.”
We
endorse his opinion.
3. Treatment of the Principle of “Equitable Utilization”
Equitable utilization, as it has been used in international water
law, was defined in Article 4 of the 1966 Helsinki Rules, which
provides that a basin state is entitled to an equitable and
reasonable share of the beneficial uses of the waters of an
international drainage basin. It was thus recognized that a basin
state has a right, not to an equal share of the
waters of the basin, but to the beneficial uses of
those waters. Notwithstanding that the rule of equitable
utilization so defined is generally regarded as a rule of customary
international law, in the definition of equitable utilization in the
report of the WRC under consideration, there is no mention of a
right or entitlement of a basin state to share in the beneficial
uses of the water, only its duty (“shall”) in its territory “to
manage the waters of an international drainage basin in an
equitable and reasonable manner …” (Article 12), and, in that
management, to “refrain from and prevent acts or omissions … that
cause significant harm to another State having due regard for the
right of each basin state to make equitable and reasonable use
of the waters” (Article 16).
The emphasis on this duty of basin States
appears throughout the report and indicates that the chief concern
of the majority of the WRC was the development of international law
to protect the environment; the law on international fresh water was
regarded as being incidental to an all-embracing international
environmental law. Evidence of this is especially strong in the
provisions making the principle of equitable utilization subordinate
to the “no harm” rule (see Article 12 and 16). The WRC is not shy
in admitting that its aim was the progressive development of
customary international environmental law relating to fresh water
generally; it stated this explicitly in the third paragraph of Part
Two of its report introducing the draft articles.
The rules in the articles proposed by the WRC in
its report, then, strike at the fundamental basis of the Helsinki
Rules and subsequent resolutions of the ILA; their adoption would
abrogate the customary law on equitable utilization as viewed by the
ILA since 1966. The rules set out in the WRC Report are also
contrary to those affirmed by the ILC in its final report on the
Non-Navigational Uses of International Watercourses, and to those in
the 1997 UN Convention, and in the judgment of the International
Court of Justice in the Gabcikovo-Nagymoros Case.
4. The Inappropriate Use of the term “shall”
Throughout the draft articles set forth in the report of the WRC,
the use of the word “should” has been avoided. No attempt is made
to distinguish the obligatory “shall” from the hortatory “should”;
that is, rules of law (lex lata) from rules of emerging law (de
lege ferenda) or merely desirable rules. The failure to make
this distinction detracts seriously from the legal reliability and
usefulness of the rules, for several of the rules formulated as
mandatory do not properly meet the test for the creation of a
customary international law (practice accepted as legally
binding – for example, not merely declarations at conferences) and
should have been stated in non-obligatory form (should).
It turns out that the WRC knew that it was
formulating some propositions as rules of customary international
when in fact it did not believe them to be such rules. At page 4
of its report under the heading “Usage Note,” there is the
following passage: “These Rules both express rules of law as
they presently stand and, to a small extent, rules not yet binding
legal obligations but which, in the judgment of the Association, are
emerging as rules of customary international law. In other words,
some of these Rules express the progressive development of
the relevant international law.” The WRC then justifies this
extraordinary passing off as law what is known not to be law in
these words:
“Following the recent practice of International
Law Commission and reflecting the conclusion of the Committee that
such progressively developed Rules will become settled
customary international law in the near future, all Rules are
expressed as present legal obligations (‘shall’), leaving
identification of Rules as progressive developments to the
commentary.”
Incidentally, commentaries on draft articles in
the Report that may be adopted, should not be approved; they have
not been subjected to close study by the WRC. The commentaries on
the 1966 Helsinki Rules were not approved.
It would hardly be proper for the ILA to adopt
the rules proposed by WRC as being rules of existing customary
international law when the WRC itself is uncertain whether or not
these rules are yet law? Is it sufficient to rely on the belief of
some members of the WRC that, even if its proposed rules are not law,
they will ultimately and inevitably emerge as customary
international law ? Incidentally, is it accurate to say, as is done
in the statement quoted above, that the ILA has made a “judgment”
about the emerging rules of international law?
Examples of rules in the report that have little
claim to be regarded as obligatory are the following:
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ArtiArticle 4 : Participation by Persons
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Article 5 : Conjunctive Management
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Article 6 : Integrated Management
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Article 7 : Sustainability
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Article 9 : Interpretation of these Rules
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Article 18: Public Participation and Access to Information
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Article 20: Protection of Particular Communities
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Article 21: The Right to Compensation
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Article 23: The Precautionary Approach
5. Conclusion
The 1966 Helsinki Rules and the other rules
adopted by the ILA in subsequent resolutions on the law governing
the waters of international drainage basins have been widely
accepted and followed by basin states and are justly regarded as
embodying the rules of customary international law. Thus the ILA
has contributed greatly to the rational and peaceful development,
management, and utilization of these waters. The adoption of the
rules now proposed in the Report of the WRC would mark a radical and
unwarranted departure from existing customary law; it would
diminish the influence and reputation of the ILA.
In the light of the above, the Rules on Water
Resources set forth in the Report of the WRC should be rejected.
We
request that this Dissenting Opinion be made available to those
attending the working sessions discussing the WRC Final Report at
Berlin and that it be attached to and published in its entirety with
the Final Report.
Slavko Bogdanovic,
Yugoslav Association for Water Law
Charles Bourne,
Professor Emeritus of Law, Chairman of WRC, 1991-2000
Stefano Burchi,
Senior Legal Officer, Development Law Service, FAO, Rome
Patricia Wouters,
Director, International Water Law Research Institute, University of
Dundee, UK
9
August 2004
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