The inter-relationship between no harm, equitable and reasonable utilisation and cooperation under international water l
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The inter‑relationship between no harm, equitable and reasonable utilisation and cooperation under international water law Attila M. Tanzi1 Accepted: 10 July 2020 © The Author(s) 2020
Abstract The chapter addresses the no-harm principle as a core pillar of the international water law regime, and its inter-relationship with the principles of equitable and reasonable utilisation and cooperation. No harm will be described in its harmonised relation to the latter two principles under the “community interest” approach to transboundary watercourses, as enunciated by the Permanent Court of International Justice and later corroborated by the International Court of Justice. Such a harmonised construction of the three-pronged body of international water law will be illustrated as one disproving any alleged priority or, conversely, subservience of either principle with respect to the others. It will also be shown how the same construction emphasises the integration and inter-relationship between the legal principles at hand. Keywords No harm · Equitable and reasonable utilisation · Community interest Abbreviations ICJ International Court of Justice PCIJ Permanent Court of International Justice
1 Introductory remarks When applying international law to transboundary watercourses, friction may arise between differing interpretations of its basic principles. Generally, lower riparian countries tend to rely on the alleged prevalence of the no-harm principle over the equitable utilisation principle, while upper riparians usually argue for the opposite.1 This alleged tension between the two principles is also reflected in the legal literature (Caflisch 1989, 134 ff.; 1
During the negotiation of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses (New York, 21 May 1997; entered into force 17 August 2014; UN Doc. A/51/869), China, Spain, Tanzania, South Africa, India, Bolivia, Colombia expressed support for the prevailing nature of no harm, whilst Czech Republic, Ethiopia, Switzerland and Turkey expressed support for the prevailing nature of equitable utilisation.
* Attila M. Tanzi [email protected] 1
University of Bologna, Bologna, Italy
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Utton 1996, 638–639; Salman 2010, 334–335; Tanzi 2017, 1–2; McCaffrey 2019, 98–160), and stems from an assumption that upper riparians are more likely to cause harm to equitable water use. The present chapter illustrates instead how the no-harm rule co-exists harmoniously with the equitable and reasonable utilisation principle. The chapter will begin by arguing that there can be no competition—neither priority, nor subservience—between the two legal principles at hand. It will then proceed by demonstrating how the two principles reinforce one another, and apply, indistinctly, to both water apportionment and environmental protection issues. The third section of this chapter will examine the inter-relationship between the noharm and equitable utilisation principles and demonstrate their link to the general pri
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