Der Gegenstand des internationalen Wasserrechts

Abstract

The concept of international river law as defined in its three branches i.e., 1) the determination of state boundaries in frontier waters 2) the physical interferences (Immissionen) in waters between states, 3) the trans-boundary navigation on international rivers appears to clearly define any international river law relationship only in the branch of state boundary determination. The application of international river law to physical interferences in the waters between states is of doubtful scope, while the question whether or not navigation on international rivers is to be construed as part of international river law seems to be not just a question of terminology but of dogmatics. Originally the scope of the application of international river law was not based on the concept of interferences in waters as a physical unit. However, the growing needs arising from industrial development and the development of law on the basis of such industrial phenomena as hydroelectric power, water pollution, high rate water consumption, etc., has progressively focused this scope of application from the starting doctrine of “international river” (internationaler Fluss), borrowed from the international law of navigation but with the element of “navigability” removed, to the doctrine of “international river system” (internationales Flusssystem), then to the doctrine of “coriparian states system” (Flussanliegerstaatensystem) and, finally, to the doctrine of “international drainage or river basin” (internationales Flussbecken) which is widely recognized today. This development is particularly noteworthy since the scope of this body of law refers to any water interference whatsoever in the area of a drainage basin. The notion of international drainage basin, however, will fail if there are interferences in the waters outside this area. Already since World War II there have been instances of artificial production of precipitation which have caused disputes between member states of the USA. It would therefore seem that the natural circuit of water (naturlicher Wasserkreislauf) Sea-Air-Ground-Sea should be the appropriate scope for the application of international drainage basin law excepting, however, the High Sea which is governed by the international law of the High Sea. This conception would fill the lacuna between the scope of the international law of the High Sea and that of the international law of drainage basin, the latter becoming thereby an international law of natural water circuit. This international law of natural water circuit as a law concerning physical interferences is therefore part of the international law of (physical) interferences or international law of neighbourhood which has to be defined as the body of legal norms governing physical interferences between states, the cause of which has its origin in one state, the effect, however, by virtue of physical laws, manifesting itself in another state, acts of God excepted. As far as water interferences are concerned the notion of international river law — a term that may be used furthermore for convenience — should be understood in the sense of an international law of natural water circuit.