Bilateral Environmental Disputes
Chapter Sixty-Three
Syllabus topic 3, "International Concern for Environment Protection"
Pages 187 to 189 of 663
In one line
MU has asked about the principles governing a bilateral environmental dispute on four of her seven papers, and the answer is five obligations that run in sequence: notify, exchange information, consult, negotiate in good faith, and settle by a peaceful means.
In exam wording: the principles governing the resolution of a bilateral environmental dispute are prior and timely notification of activities that may have a significant adverse transboundary effect, the exchange of relevant information, consultation at an early stage and in good faith, negotiation with a genuine willingness to reach agreement, and, failing settlement, recourse to a peaceful means of the parties' own choice under Article 33 of the Charter of the United Nations; consultation does not amount to a requirement of consent, and the substantive rule applied is equitable and reasonable utilisation with an obligation not to cause significant harm.
Why bilateral disputes are the commonest kind
Because most environmental harm is local and directional. A river runs one way. A plume drifts one way. Two States, one upstream and one downstream, one upwind and one downwind. Every case in this chapter has that shape.
The five obligations
One: notify
Rio Principle 19: States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect. Rio Principle 18 requires immediate notification of emergencies.
Notification is prior. A State that notifies after building has not notified.
Two: exchange information
The notification must carry enough to let the other State evaluate the risk. In Pulp Mills the Court held that Uruguay breached the 1975 Statute by failing to inform the joint commission CARU before authorising the mills, and by failing to notify Argentina through it.
Three: consult
At an early stage and in good faith, in the words of Rio Principle 19. Consultation means considering the other State's objections and being willing to change.
Four: negotiate
Where there is a disagreement, the parties must negotiate meaningfully. That does not mean either must give way.
Five: settle peacefully
Article 33 of the Charter lists the means: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of the parties' own choice. Rio Principle 26 repeats it for environmental disputes.
The case that fixed the limits
Facts. Lake Lanoux Arbitration (France v. Spain), 12 RIAA 281, award of 16 November 1957. France proposed to divert the waters of Lake Lanoux in the French Pyrenees towards the Ariege for hydroelectric generation, returning an equivalent quantity to the river Carol, which flows into Spain. Spain argued that the works could not lawfully be carried out without its prior agreement, relying on the Treaty of Bayonne of 1866 and its Additional Act, and objecting that the scheme made restitution of the water depend on human decision rather than on nature.
Bilateral Environmental Disputes
Held. France was entitled to proceed. There is no rule of general international law forbidding an upstream State to alter the natural conditions of a river so long as the downstream State suffers no injury, and prior agreement is not required unless a treaty imposes it. But the upstream State must genuinely notify, negotiate and take the other State's interests into account, and it may not put itself in a position from which it could injure the other State in breach of its obligations.
Why it matters here. It is the case that separates consultation from consent, which is the single most examined point in this part of the subject. A downstream State has a right to be heard and no veto.
The substantive rule
Two extreme theories are rejected everywhere.
| Theory | What it claims | Status |
|---|---|---|
| Absolute territorial sovereignty | The upstream State may do as it likes with the water in its territory | Rejected |
| Absolute territorial integrity | The downstream State is entitled to the natural flow unaltered | Rejected |
| Limited territorial sovereignty | Each riparian may use the resource in a way that is equitable and reasonable and does not cause significant harm to the others | Accepted |
The accepted rule is worked out on the facts. Relevant factors include the geography and hydrology, existing and potential uses, the population dependent on the resource, the availability of alternatives, and the effects on the other riparians.
Worked example
State U plans a hydroelectric project on a river flowing into State V. There is a treaty between them with an arbitration clause.
- Notify. U must notify V before authorising, with sufficient information.
- Assess. On Pulp Mills, a transboundary environmental impact assessment is required by general international law where there is a risk of significant transboundary harm.
- Consult. V objects that the project will alter the flow regime. U must consider the objection and be willing to modify.
- May V stop it? No. Lake Lanoux: no prior agreement is required unless the treaty says so.
- What limits U? The project must be an equitable and reasonable use and must not cause significant harm; and any treaty condition applies.
- If they cannot agree. The treaty's arbitration clause. That is what happened in the Kishenganga arbitration, where the Court of Arbitration held that India could divert the water but must release a minimum flow into the riverbed downstream, fixed on expert evidence with a power reserved to revisit it.
What it does NOT mean
It does not mean the downstream State has no protection. It has the substantive protection of the no-significant-harm rule and the procedural protection of notification and consultation. What it does not have is a veto.
Bilateral Environmental Disputes
It does not mean a treaty is unnecessary. The general rules are vague and a treaty supplies the numbers. That is exactly what the Indus Waters Treaty 1960 does, and it is why the Kishenganga tribunal could fix a flow.
It does not mean bilateral disputes are easy. They are the commonest and among the hardest, because proof of harm is difficult and the two States must go on living beside each other afterwards.
Quick revision
- Five obligations: notify, exchange information, consult, negotiate in good faith, settle peacefully under Charter Article 33.
- Rio Principles 18, 19 and 26.
- Lake Lanoux 1957: consultation is not consent; no prior agreement unless a treaty requires it.
- The rejected theories are absolute territorial sovereignty and absolute territorial integrity; the accepted rule is equitable and reasonable use with no significant harm.
- Kishenganga 2013 shows the rule producing a number, a minimum flow.
Test yourself
1. What is the single most important distinction in this chapter, and which case establishes it? The distinction between consultation and consent. Lake Lanoux Arbitration, 12 RIAA 281, holds that an upstream State must notify, negotiate and take the downstream State's interests into account, but need not obtain its agreement unless a treaty requires it.
2. Name the two rejected theories of shared river rights and the accepted rule. Absolute territorial sovereignty and absolute territorial integrity are both rejected. The accepted rule is limited territorial sovereignty: equitable and reasonable utilisation without significant harm to other riparians.
3. List the means of peaceful settlement in Article 33 of the Charter. Negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of the parties' own choice.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.