THE IMPACT OF THE BASIC FUNCTIONS AND PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW IN THE CONTEXT OF MANAGING WATER RESOURCES
CHAPTER ONE
INTRODUCTION
- Background of the study
We live in a world where we are subject to environmental and economic effects that transcend national boundaries. Increasing globalization has led to a greater recognition of the need to address many of these issues through a global or a regional approach. In some respects, international law relating to the utilization of shared freshwater resources has become much clearer in recent years. It is now beyond debate that the principle of ‘equitable utilization’ is the pre-eminent rule relating to the utilization of international watercourses. According to this rule, the determination of a reasonable and equitable regime for the utilization of an international watercourse is usually understood in terms of consideration of a number of familiar relevant factors or criteria. However, among the various factors impacting upon the application of this principle, it is possible to argue that considerations relating to the environmental protection of international watercourses are steadily increasing in terms of their significance and complexity. This is largely due to the emergence in general and customary international law of a comprehensive suite of rules, principles and legal concepts requiring enhanced protection of various aspects of the natural environment of international watercourses and riparian States. The normative content of such rules and principles is becoming increasingly clearly defined, both through their ongoing elaboration into a sophisticated corpus of legal requirements and through growing understanding of their mutual relevance. Indeed, it can be argued that it is the normative sophistication and comprehensive coverage of general environmental rules that give added ‘voice’ to environmental concerns within the determination of a reasonable and equitable regime for the utilization of an international watercourse. In addition, these rules and principles are increasingly supported by sophisticated rules of procedure, adding further to their normative clarity and justiciability. This paper is based on a detailed survey and analysis conducted of declaratory and conventional instruments, of judicial and arbitrary practice, of recorded State practice, of codifications by intergovernmental agencies and learned associations, and of academic commentary, in relation to a number of established and emerging rules and principles of substantive and procedural international environmental law. These include, under substantive rules: the duty to prevent
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