Water security and peace: a synthesis of studies ... - unesdoc - Unesco

ejoins the main stem of the river further downstream. In response, Hungary
unilaterally terminated the 1977 Treaty. The two parties tried unsuccessfully to
resolve their dispute through negotiations and third-party mediation offered by
the Commission of the European Communities.
Finally, the dispute was submitted to the ICJ, which was asked to address the
following questions:
! whether Hungary was entitled to suspend and abandon works
! what should be the legal effects of Hungary’s unilateral termination of the 1977
Treaty
! whether the Czech and Slovak Federal Republics were entitled to proceed and
implement Variant C.
The range of legal issues that the court had to address was without precedent. It
ranged from the validity of international treaties, succession of states and
international responsibility to environmental protection and the law of international
watercourses. In essence, the Court decided that both parties acted unlawfully.
Hungary had done so by abandoning work on the project, Slovakia by putting into
operation Variant C and thus diverting for its use and benefit between 80 and 90
percent of the waters from the part of the river that constituted the boundary
between the two countries. The Court also upheld the legal validity of the 1977
Treaty, which allowed the parties to adjust the project in order to address
environmental concerns, and ruled that that its purported termination by Hungary was
ineffective. The joint operational regime of the entire project would have to be
reinstalled, and the parties, unless they agreed otherwise, would have to compensate
each other for the harm caused by their unlawful acts.
National judicial decisions, although not a source of international law as such, can
serve as models for resolution of international disputes or be used to identify
applicable general principles of law. This is especially true when considering decisions
of the supreme courts that were called on to settle water controversies between
different constituent units (states, länder) in federal states. The US Supreme Court, in
particular, has greatly influenced the articulation of some of the fundamental rules of
water law. The Court unequivocally endorsed the approach to water allocation based
on the equality of rights of upper and lower riparian states: the former have no
entitlement to undiminished stream flows, while the latter are not entitled to claim
exclusive rights to use water only because it originates within their territory. In
resolving interstate conflicts over water sharing the Supreme Court developed and
applied the doctrine of “equitable apportionment” which eventually evolved into the
international legal principle of “equitable and reasonable utilization.”
International treaties are the primary instruments of cooperation in the field of water
resource utilization as well as the most important source of international water law.
More than 3,600 international agreements, bilateral and multilateral, that deal with
water-related issues are known. The first general treaty dealing with international
watercourses – the 1923 Geneva Convention relating to the Development of Hydraulic
Power affecting more than one state – failed to achieve its objectives. Only ten
countries, none of them having common borders, ratified it.
There are a significant number of multilateral–regional and basin-wide
agreements, the most significant being the 1997 UN Convention on the Law of the
Non-Navigational Uses of International Watercourses (1997 UN IWC Convention). The
other most important water treaties are:
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