Interpreting the principle of equitable and reasonable utilization in the context of China’s practices: bridging national and international legal frameworks

<p><em>A literature review has been carried out to determine international and national legal frameworks regarding international transportation of nuclear and radioactive materials through the Lombok Strait in Indonesia. </em><em>The </em><em>Lombok Strait is one of the Indonesian Archipelagic Sea Lanes which has been regulated both in the national and international legal frameworks as a pathway between two oceans that passes through Indonesian waters. Transportation of goods by ship is passage of innocent as stated in Sea Law Convention. However, due to nuclear and radioactive materials are not ordinary goods, the safety and security of nuclear and radioactive materials should be ensured. The paper examines Indonesian national laws on nuclear and radioactive materials transport through Lombok Strait. Review results that a</em><em>part from the carrier should comply with national and international legal frameworks, coordination between governmental agencies in Indonesia including local governments plays an important role in the innocent passage through the Lombok Strait. Finally, ensuring nuclear and radioactive materials transports are safe and secure in the context of international shipment is a necessity to ensure safety and security for workers, public and the environment.</em><em></em></p><p><strong><em>Keyword</em></strong><strong><em>s</em></strong><strong><em>:</em></strong><em> </em><em>Lombok Strait; nuclear; transport.</em><strong><em></em></strong></p>

This article examines the international legitimacy of unilateral dam development in an international watercourse from the perspective of international water law. Drawing upon technical analysis over the Harirud River Basin, the article discusses probable negative impacts of unilateral dam development in Afghanistan on downstream Iran and Turkmenistan. Competing claims are analyzed to assess emerging transboundary damage under customary international water law. Applying these insights to the case study, this article explores how legal norms and principles can contribute to transboundary water cooperation. It investigates how equitable and reasonable utilization, as required by the United Nations Watercourse Convention, could be reached and whether current activities are in conformity with international norms. Based on this analysis and in the light of international customary law, the article questions the compatibility of unilateral control and capture of water resources in Afghanistan, particularly through the Salma Dam, with ‘equitable and reasonable utilization’ and ‘no significant harm’ rules. The article also argues that building the Salma Dam results in significant transboundary harm to downstream states. Hence, such harm could be considered as significant transboundary damage. Conclusions point to an understanding of water law as a form of institutional guidance in order to provide a transparent setting for transboundary water cooperation among riparian states.

This article examines the potential contribution of international water law (IWL) to alleviating the negative cross-border impacts of ‘dam-induced migration’, the displacement of individuals or communities resulting from dam construction. While much has been written on efforts to deal with this global problem in other areas of international law, the application of IWL in this context has yet to be meaningfully explored. But since dams are frequently constructed on transboundary watercourses, the principles of IWL (no significant harm, equitable and reasonable utilisation, and the duty to cooperate) may prove relevant and useful to mitigating the harmful cross-border impacts of dam-induced migration. The no significant harm principle requires States to comply with a due diligence standard of conduct designed to avoid, minimise, or compensate for significant harm that might result from the use of shared watercourses, including harm to human life or health. The equitable and reasonable utilisation principle obligates each basin State to use an international watercourse in a manner that is equitable and reasonable vis-à-vis the other States sharing it. The duty to cooperate requires States to collaborate in the management and use of shared watercourses and sets out concrete measures to enable collaboration, such as information exchange, consultations, and the establishment of joint institutions. Taken together, these IWL principles can effectively guide the planning, construction, and operation of dams on shared watercourses. Applying them to the specific issue of dam-induced migration, moreover, could promote inter-State cooperation and accountability, facilitate the resolution of disputes, and alleviate negative cross-border impacts. In this way, IWL can supplement other areas of international law in providing a comprehensive solution to the growing problem of dam-induced migration.

Water security threats arising from inadequate access to water for sustaining ecosystems, livelihoods, human well-being and socio-economic development has gained increasing attention over the past decades all over the world, but especially in international river basins shared by two or more states. In the Aral Sea basin, shared by Afghanistan and five post-Soviet republics of Central Asia – Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan - water security issues are extremely pressing due to heavy reliance on, and competition over, shared waters. Promoting Transboundary Water Security in the Aral Sea Basin through International Law addresses the current gap in the literature by moving beyond the static identification of treaties and norms to examine how these treaties and norms can work for water security in practice. In its thorough and incisive scholarship, the book serves as a contribution toward peaceful and sustainable regulation of transboundary watercourses and their ecosystems in the Aral Sea basin.

The evolution of customary principles in international water law is ongoing. This chapter presents the current status of customary principles and discusses how these principles are correlated. The relationship between the core substantive principles, equitable and reasonable utilization and the no-harm rule, has been a highly controversial issue in international water law, particularly among Nile riparian states; however, current court and state practice arguably support the primacy of equitable and reasonable use. Both principles are generally recognized, although their detailed normative content, and thus their application, remain difficult to determine precisely. Furthermore, obligations exist to protect international watercourses and their ecosystems, but international water law is still developing with regard to environmental protection in watercourse management and use allocation. Given the general character of these substantive principles, the procedural obligations of cooperation, notification, consultation, and the exchange of data and information are particularly important. The obligation of prior notification includes the obligation to undertake an environmental impact assessment if a planned measure may have a significant adverse impact on shared water resources. These procedural principles ensure that the substantive rights and obligations of the riparian states translate into effective cooperation.

Swimming Against the Current: Revisiting the Principles of International Water Law in the Resolution of Fresh Water Disputes

Equitable and reasonable utilization (ERU), the cornerstone of international water law, recognizes the rights of states to utilize shared water resources. However, there is ambiguity in ERU’s application, and upstream states often perceive it as against their interests. Recent research highlights the important role reciprocity plays in international water law, yet how reciprocity is practiced in transboundary water governance remains poorly understood. Combining literature on international law, hydropolitics and international relations, this article conceptualizes ‘reciprocity in practice’ for international watercourses as interconnected legal, social and political processes by which state and non-state actors negotiate ERU and distribute benefits and harms. We pay particular attention to power relations and perceptions of fairness that influence the form and (dis)continuity of reciprocity. We demonstrate our approach through an analysis of evolving legal regimes and issues of navigation, hydropower, flood and drought management, and economic regionalization in the Lancang-Mekong basin, focusing on relations between China and downstream states. We demonstrate how multiple forms of reciprocity occur simultaneously across issues that are often analyzed individually, complicating common narratives of China’s unilateralism. We show, however, that practiced positive reciprocity is weak and exclusive, generating distrust and resistance from those excluded or who experience harms. Overall, we suggest that processes of ‘reciprocity in practice’ are at the heart of meaningful negotiation, institutionalization and practice of ERU, and that, as a model of water allocation, ERU should be contextualized to wider process of allocation of benefits and harms that include but go beyond water, and in which power relations fundamentally matter.

A distinction between ‘substantive’ and ‘procedural’ obligations has been widely accepted in the international water law field. Nevertheless, a strict division between the core ‘substantive’ obligations of this body of law, namely to utilize water equitably and reasonably and to take steps to avoid significant harm, and its ‘procedural’ obligations, e.g. to exchange information, consult, and notify of planned measures, should be rejected. Such a division underestimates the authoritative force of ‘procedural’ obligations, which greatly contribute to the cooperative management of shared fresh water resources both in their own right and as a tool for the implementation of related ‘substantive’ duties. This chapter reflects on the importance of states’ ‘procedural’ obligations under international water law by examining their dual role: first, to facilitate compliance with the ‘substantive’ principles of this body of law and, second, to independently elicit cooperation between states. The chapter will first describe the content and status of these obligations, both under customary international water law and regional and global instruments. It will then turn to address their dual role in the cooperative management of shared fresh water resources and in the implementation of international water law by states. After providing a brief overview of the principles of equitable and reasonable utilization and no significant harm, the chapter will examine the way in which ‘procedural’ obligations facilitate state compliance with these principles. It will then discuss the interaction between the ‘procedural’ obligations of international water law and states’ independent duty to cooperate under general international law, and how this interaction has informed both treaty practice and the prevention and resolution of fresh water disputes.

All people rely upon water for life. Indigenous peoples are especially vulnerable to water conflicts and yet lack recognition in international water law. This thesis adopts Critical Race Theory to examine the intersection between transboundary water law, the doctrine of sovereignty and the international law of Indigenous peoples. The methodology adopted in this thesis includes: (i) a deconstruction of the UN Watercourse Convention and the doctrine of sovereignty; (ii) a review of Indigenous perspectives on sovereignty; and (iii) a proposal for the reconstruction of transboundary water law in a manner that recognizes the internationally affirmed rights of Indigenous peoples.A deconstruction of the UN Watercourse Convention and related discourse reveals that state-centric approaches to transboundary water law fail to recognize Indigenous peoples’ international rights or the pivotal role that Indigenous peoples’ traditional knowledge might play in transcending conflict. Case examples are provided (Columbia River and Tsangpo-Brahmaputra River) that illustrate the vulnerability of Indigenous peoples in the face of state development agreements. The inequities that exist in international water law are rooted in the historical doctrine of sovereignty which has evolved to subordinate Indigenous peoples’ interests to state interests. Indigenous perspectives regarding sovereignty provide a counter-point to the dominant legal discourse and weave an alternate narrative that challenges the myth of objectivity and neutrality that surrounds the doctrine of sovereignty and international law generally. Once we recognize that sovereignty is a social construct, we can recognize our collective ability to reconstruct international laws in a manner that transcends the sovereign discourse and recognizes the rights of Indigenous peoples. Endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is indicative of states’ commitment to recognize Indigenous peoples’ rights throughout the international legal system. This thesis concludes by offering a proposal for reconstructing transboundary water law through a return to ethics and coalition building. Future reform should be directed towards (a) articulating an international water ethic with the critical engagement of Indigenous peoples; and (b) ensuring that river basin organizations are established on every transboundary river in a manner consistent with this shared international water ethic.

International Water Law and Fresh Water Dispute Resolution: A Coasean Perspective

International water law plays a key role in guiding states’ behavior over water resources they share. Substantive and procedural principles provide an ex ante framework based on which states can interact in a manner that prevents or mitigates potential conflicts and fosters cooperation and its benefits while supporting the sustainable use and management of these transboundary resources. Through the international water law regime, cooperation has largely prevailed over conflict in the world’s transboundary basins. Nonetheless, international water law—and thus also its role in conflict prevention and cooperation promotion—faces various challenges as populations and economies grow, the climate changes, and states seem to increasingly value short-term unilateral considerations over long-term multilateralism gains. This will challenge key principles, such as the principle of equitable and reasonable utilization and the principle of no significant harm, and their implementation in different basins, possibly triggering new disagreements between riparian states. It will therefore be important for international water law to remain adaptive to change and ensure the long-term cooperative and sustainable governance of water resources shared between states.

Interest in an ecological- or an ecosystem-centred approach to natural resource management is not new, and in the case of water management has been very well emphasised for many decades. Recently however, a new focus has emerged around the identification and assessment of ecosystem services, and the potential to somehow use valuation of these services as a basis for more effective management of natural and human-linked systems. Despite this growing recognition, attempts to apply such an approach to transboundary watercourses are few and far between. While key principles of international water law, for example, equitable and reasonable utilisation, are not in conflict with an ecosystem services approach; significant challenges remain in its implementation. However, as the methods and tools used to identify ecosystem services improve, it is likely that such an approach will offer an important means by which to reconcile competing interests over shared watercourses in the future.KEYWORDS: Ecosystem services; International water law; Trans-boundary watercourses; Reasonable and equitable use of water; Natural resource management

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.

Since the ownership of international rivers often does not lie with a single state, their exploitation and use frequently give rise to disputes among riparian countries. The historical approaches to river utilization in international law differ, with customary international law predating treaty-based regulations. The treaty-making process in this field began with the establishment of the International Law Association and the International Law Institute in the 1870s. The central issue addressed in this research is the legal framework governing the utilization of international rivers by the countries through which they flow. This study, considering relevant principles, theories, multilateral treaties, and United Nations conventions, concludes that states may utilize the waters of international rivers in accordance with four key principles: (1) equitable and reasonable use, (2) avoidance of significant harm to other states, (3) notification of other states regarding new projects, and (4) prohibition of altering the river’s course or flow within a state’s territory without prior agreement. These principles are reflected in international instruments such as the Helsinki Rules (1966), the Berlin Rules (2004), the European Water Convention (1992), and the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (1997), which collectively constitute the current legal framework for the use of International rivers. Keywords: International Rivers, International Water Law, Equitable and Reasonable Utilization, No Significant Harm Principle

The duty to prevent significant transboundary harm remains a cornerstone principle of international law, and especially of international environmental and water resources law. However, this rule focuses on the conduct of a State where harm originates, rather than on the fact that harm has resulted from such conduct, and thus requires that States exercise due diligence in anticipating and in preventing or mitigating such harm. At a practical level, the due diligence standard of conduct expected of States can be uncertain and difficult to determine, as it must be deduced from the applicable primary rules of international environmental or water resources law, which have traditionally been elaborated in rather vague terms. In addition, the standard of due diligence required under the no-harm rule may be influenced by a range of variable and context-specific factors which might prove relevant in the particular circumstances of any dispute. Such uncertainty is further compounded in the field of international water law by the complex interrelationship between the no-harm rule and the other key norms of international water law, particularly the cardinal principle of equitable and reasonable utilization, which embodies a high degree of flexibility and adaptability and suffers from a corresponding degree of normative indeterminacy. Thankfully, recent developments in international water law and related practice regarding the requirement to protect riverine ecosystems and maintain related ecosystem services lend a welcome measure of clarity as regards the preventive measures expected of watercourse States under international law. Judicial recognition of obligations to maintain minimum environmental flows and to preserve or restore riverine ecosystem services, based on the proliferation of such values in treaty and declarative practice, along with the continuing development of sophisticated technical methodologies for ecosystems assessment and evaluation, do much to inform the due diligence conduct required of States. Such advances can only enhance the practical utility of the no-harm rule, and thus of the entire corpus of international water law, in addressing the challenges emerging globally for water resources management in the twenty-first century.