LAW5707 International Rivers and Sea Law — Unit 1: International Rivers

Unit 1: International Rivers

1.1 Definition and Trans-boundary Border Regime

The international-river’s-definition (the menu (the exam’s-first)): the successive (the border-crossing (the A-to-B (the upstream’s-and-the-downstream’s))); the contiguous (the boundary (the river-as-the-border (the mid-channel’s-lore (the thalweg’s (the “the-deepest-channel” (the navigation’s-preference (the main-channel’s (the “madhya-dhara”‘s-Nepali-face))))))); the basin’s-comprehensive (the modern (the whole-drainage (the tributaries-and-the-groundwater (the Helsinki’s-definition))); The border-regime’s: the boundary-river’s-law (the demarcation’s (the treaty’s-and-the-map’s (the change’s-questions (the accretion-vs-the-avulsion (the gradual’s-moves-the-line vs-the-sudden’s-preserves (the exam’s-classic-pair))))); the border-rivers’-use (the no-unilateral-works (the boundary’s-respect (the 1954-Kosi-type’s-embankments-on-the-border’s-questions))); the Nepal-faces (the border-rivers-with-India-and-China (the Mahakali’s-boundary-stretch (the “the-river-the-border” stretch (the Kalapani’s-questions (the origin-and-the-territory-debates (the map’s-politics (the honest-summary-only))))));

1.2 Historical Demarcation of International Rivers

1. The early-line: the navigation’s-first-law (the Westphalia’s-1648 (the rivers’ free-navigation (the Rhine’s-commissions (the 1815’s-Vienna-and-the Rhine’s-internationalisation)))); the 19th-century’s-treaties (the Congo-and-the-Nile (the Berlin-1885’s-African-faces));
2. The 20th-century’s-uses: the utilisation’s-turn (the irrigation’s-and-the-hydro’s (the Indus-1960 (the division-not-the-sharing (the eastern-and-the-western’s))); the Columbia’s-benefit-sharing (the US-Canada’s-pioneering (the 1961-64’s (the power’s-payment’s))); the principle’s-build (the Lake-Lanoux-1957 (the consultation’s (the no-veto’s)); the 1966-Helsinki (the private-law-association’s (the reasonable-and-equitable’s-first-codification));
3. The modern-era: the 1997-UN-Watercourses (the framework (the adoption’s-consensus-minus (the dissenters’ votes (the India’s-and-the-others’)))); the 1992-UNECE (the Europe’s-regional (the transboundary’s (the parties-beyond-Europe’s-2013-amendment))); the basin-treaties’ (the Mekong-1995 (the Zambezi (the Nile’s-2010-controversial (the GERD’s-era (the names-only))))); the courts’ (the ICJ’s-Gabcikovo-1997 (the Pulp-Mills-2010 (the Kishenganga-2013 (the law’s-case-line (the exam’s-citations)))));

1.3 Rights and Duties of Co-riparian States and River Basin Communities

The co-riparian’s-rights: the use’s-equal-right (the reasonable-and-equitable (the no-absolute-sovereignty (the Harmon’s-rejected (the “the-upstream’s-free-hand”‘s-American-heresy (the Montevideo’s-1933-echo (the absolute-territorial’s-collapse)))); the no-appreciable-harm’s (the Sic-transit (the downstream’s-protection (the “the-no-injury”‘s))); The duties’: the notification’s-and-the-consultation (the planned-measures (the 1997’s-chapters (the 6-12-months’ (the exchange’s (the good-faith’s)))); the cooperation’s (the basin’s-joint (the data’s-sharing (the management’s-joint (the “the-basin-the-unit” principle))); the dispute’s-peaceful (the 1997’s-menu (the negotiation (the mediation (the fact-finding (the arbitration-and-the-court (the compulsory-fact-finding’s-1997-innovation)))))); The communities’-faces (the exam’s-inclusion): the basin-populations (the users’ rights (the fishing-the-irrigation-the-transport (the customary’s)); the indigenous’-and-the-local’s (the FPIC’s-adjacent (the LAW5702-U5.2’s-echo (the displacement’s-compensation (the reservoir’s-relocation (the LAW5701-U5.2’s-development-displacement)))));

1.4 Principles of Utilization of International Rivers

The two-pillars (the 1997’s-core (the exam’s-must)):

1. The equitable-and-reasonable-utilisation (the Art-5-6): the factors’ (the seven-plus (the geographic-hydrographic-climatic-ecological (the social-and-economic-needs (the dependent-populations (the effects-on-the-other (the existing-and-the-potential-uses (the conservation (the availability-of-alternatives))))))); the weighing’s (the no-hierarchy (the together (the “all-factors” (the special-geographic-circumstances’-consideration))));
2. The no-significant-harm (the Art-7): the due-diligence’s (the obligation-of-conduct (the prevention’s-best-efforts (the not-the-strict-outcome))); the reconciliation’s (the harm-vs-the-equity (the “the-equity-first” reading (the harm’s-tolerance-where-equitable (the exam’s-interpretation))));
   The complementary: the prior-notification (the planned-measures’ (the EIA’s (the LAW5603-U’s-adjacent))); the cooperation’s-and-the-data’s (the regular-exchange’s); the ecosystem’s (the Art-20 (the protection (the flows’-minimum (the environmental’s))));

1.5 Freedom of Navigation in International Rivers

The navigation’s-law: the freedom’s-principle (the international-rivers’-open (the flags’-equal ( the commercial’s-non-discrimination (the 1815-Vienna’s-line))); the riparian-vs-the-non-riparian (the treaties’-grants (the “the-basin-states-first” (the non-riparian’s-access-by-treaty))); the freedoms’-detail (the transit’s (the dues’-only-cost-based (the no-discrimination (the dues’-bar)))); the Nepal-faces (the historical (the 1839-Sugauli-and-the-later (the “the-Nepal-traders-to-Calcutta” era (the navigation’s-then-and-now)); the present’s (the Koshi’s-and-the-Gandak’s-navigation-clauses (the treaties’-faces (the 1954-and-1959’s navigation-reservations))); the future’s (the Ganga’s-basin (the Nepal-waterways-to-the-sea (the “the-Trans-Asian”-type-visions (the China-India’s-trade-routes’ (the honest-note: the vision’s-political-economy)))));

1.6 Principle and Practice with Regards to Pollution Control

The principles’ (the LAW5603-U’s-twins-applied-to-the-water): the no-harm’s (the pollution-as-the-harm (the transboundary’s (the Trail-Smelter’s-famous (the “the-no-poison”-lore (the 1941’s)))); the precautionary’s (the science’s-uncertainty (the action-anyway (the Rio-15’s))); the polluter-pays’ (the cost’s-internalisation (the economic-instrument)); the cooperation’s-and-the-notification (the emergency’s (the sudden-pollution (the alert’s-duty))); The practice’s: the treaties’ (the Danube’s-and-the-Rhine’s (the commissions’-monitoring (the standards’-harmonisation (the Europe’s-model))); the 1997’s-Art-21-23 (the ecosystem’s-protection (the alien-species’ (the introduction’s-bar))); the South-Asia’s-gap (the no-basin-treaty (the bilateral-only (the pollution’s-unaddressed (the “the-Koshi’s-silt-and-the-Gandak’s-floods” (the quality-vs-the-quantity’s-ignored (the exam’s-critical-point)))));

1.7 International Instruments and Mechanisms Relating to River and Water Laws

1. The global: the 1997-UN-Watercourses-Convention (the framework (the 33-4-3-adoption (the entry-2014 (the parties’-slow-growth (the Nepal’s-position: the not-a-party (the honest-record (the “the-not-ratified” position)))))); the 1992-UNECE (the regional-turned-open (the water-and-health (the parties’-global-now)); the 2004-Berlin (the ILA’s (the “the-Helsinki-updated” (the eco’s-shift (the soft’s-power)))); the Water-Convention-and-the-climate’s (the UNFCCC’s-interface (the LAW5603-U’s));
2. The basin-treaties’: the Indus-1960 (the World-Bank’s-brokered (the “the-division” (the Permanent-Commission’s))); the Ganges-1996 (the India-Bangladesh (the Farakka’s (the 30-years’-renewal (the dry-season’s-formula))); the Mekong-1995 (the “the-mainstream-only” (the data’s-joint (the dialogue’s))); the Nile’s-and-the Jordan’s (the cooperation’s-hard-cases);
3. The mechanisms’: the joint-committees’ (the bilateral’s (the India-Nepal’s (the “the-team-of-experts”-type (the Kosi’s-and-the-Gandak’s))); the commissions’ (the Rhine’s (the Danube’s (the monitoring’s-and-the-binding’s))); the dispute’s (the ICJ’s (the PCA’s (the fact-finding’s (the 1997’s-compulsory-consultation (the “the-not-arbitration” (the compromise’s))))));

Model Questions

1. Define international rivers and explain the border regime. (10)
2. Explain the principles of utilisation of international rivers. (15)
3. Discuss the evolution of international water law. (10)
4. How is transboundary pollution controlled? (10)
5. Short notes: (a) Thalweg; (b) Helsinki Rules; (c) Lake Lanoux; (d) Art 21. (4×5)

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