The role of international case law in implementing the obligation not to cause significant harm
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The role of international case law in implementing the obligation not to cause significant harm Mara Tignino1 · Christian Bréthaut2 Accepted: 10 July 2020 © The Author(s) 2020
Abstract The no-harm principle is at the heart of the several international conventions focusing on the uses, allocation, management and protection of transboundary water resources. However, in the framework of these agreements, the meaning of “no-harm” remains rather vague. Through an analysis of six emblematic cases brought before the International Court of Justice and arbitration tribunals, we elucidate the various facets of this principle. In doing so, the paper identifies four facets. The first is characterized by concerns related to the protection of territorial integrity rather than those related to the protection of the environment. The second facet focuses on the principle of equitable and reasonable use of water, which testifies to the willingness to anticipate possible harms and to define conditions for cooperation between neighbouring countries. The third facet explores the use of three instruments and emphasizes their importance to clarify the very nature of harm: the conduct of environmental impact assessment, the consultation of local populations and the insurance of minimum environmental flows. The fourth facet develops a preventive perspective on harm by unravelling the duty to take appropriate measures to prevent and mitigate risks deriving from the obligations of notification and consultation. Keywords Arbitration · International Court of Justice · International environmental law · International water law · Case law · No-harm · Water Abbreviations EIA Environmental impact assessment ICJ International Court of Justice IJC International Joint Commission
* Christian Bréthaut [email protected] Mara Tignino [email protected] 1
Faculty of Law and Institute for Environmental Sciences, Platform for International Water Law, Geneva Water Hub, University of Geneva, Geneva, Switzerland
2
UNESCO Chair on hydropolitics, Institute for Environmental Sciences, Geneva Water Hub, University of Geneva, Geneva, Switzerland
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M. Tignino, C. Bréthaut
1 Introduction The “no-harm” principle lies at the heart of universal, regional and basin agreements as well as judgements and awards adopted by international courts and tribunals. For instance, this principle is a core dimension of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses—hereafter “1997 Convention”—(articles 7, 12 and 21). It is also addressed by the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes—hereafter “1992 Convention”— through the notion of transboundary impacts (article 2). Among other key principles of international water law, this “no-harm” principle plays a crucial role from an interstates perspective. Therefore, it contributes to frame and to define the functioning of upstream–downstream interactions and the way riparian states interact for
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