United Nations

A/51/275


General Assembly

Distr. GENERAL  

6 August 1996

ORIGINAL:
ENGLISH/FRENCH/


                                                A/51/275
                                                          SPANISH

General Assembly
Fifty-first session
Item 146 of the provisional agenda*

*   A/51/150.


             CONVENTION ON THE LAW OF THE NON-NAVIGATIONAL USES OF
                          INTERNATIONAL WATERCOURSES

             Draft articles on the law of the non-navigational uses of
             international watercourses and resolution on confined
                           transboundary groundwater

                        Report of the Secretary-General


                                   CONTENTS

                                                                         Page

 I.   INTRODUCTION .....................................................   9

II.   COMMENTS AND OBSERVATIONS RECEIVED FROM STATES ...................  10

      A. General comments and observations on the draft ...............   10

         Finland ......................................................   10

         Guatemala ....................................................   11

         Hungary ......................................................   13

         Portugal .....................................................   14

         Spain ........................................................   15

         Turkey .......................................................   15

         United States of America .....................................   16

         Venezuela ....................................................   18

         Switzerland ..................................................   18

      B. Suggestions concerning a preamble to the draft articles ......   20

         Colombia .....................................................   20

         Finland ......................................................   20

      C. Comments and observations relating to specific draft articles    20

         PART I.  INTRODUCTION ........................................   20

         Article 1.  Scope of the present articles ....................   20

           Finland ....................................................   20

           Turkey .....................................................   21

           Venezuela ..................................................   21

         Article 2.  Use of terms .....................................   21

           Colombia ...................................................   21

           Ethiopia ...................................................   22

           Finland ....................................................   22

           Hungary ....................................................   23

           Portugal ...................................................   23

           Turkey .....................................................   24

           Venezuela ..................................................   24

         Article 3.  Watercourse agreements ...........................   25

           Colombia ...................................................   25

           Ethiopia ...................................................   26

           Finland ....................................................   26

           Portugal ...................................................   27

           Spain ......................................................   29

           Venezuela ..................................................   29

           Switzerland ................................................   30

         Article 4.  Parties to watercourse agreements ................   31

           Ethiopia ...................................................   31

           Guatemala ..................................................   32

           Switzerland ................................................   32

         PART II.  GENERAL PRINCIPLES .................................   33

         Article 5.  Equitable and reasonable utilization and
         participation ................................................   33

           Colombia ...................................................   33

           Ethiopia ...................................................   33

           Finland ....................................................   34

           Hungary ....................................................   34

           Portugal ...................................................   35

           Spain ......................................................   36

           Turkey .....................................................   36

           United States of America ...................................   37

           Venezuela ..................................................   37

         Article 6.  Factors relevant to equitable and reasonable
         utilization ..................................................   38

           Colombia ...................................................   38

           Finland ....................................................   38

           Portugal ...................................................   39

           Turkey .....................................................   40

         Article 7.  Obligation not to cause significant harm .........   40

           Colombia ...................................................   40

           Ethiopia ...................................................   41

           Finland ....................................................   42

           Guatemala ..................................................   42

           Hungary ....................................................   43

           Portugal ...................................................   43

           Spain ......................................................   44

           Turkey .....................................................   45

           United States of America ...................................   46

           Venezuela ..................................................   46

           Switzerland ................................................   46

         Article 8.  General obligation to cooperate ..................   48

           Finland ....................................................   48

           Hungary ....................................................   48

           Portugal ...................................................   49

           Venezuela ..................................................   49

         Article 9.  Regular exchange of data and information .........   49

           Colombia ...................................................   49

           Ethiopia ...................................................   50

           Finland ....................................................   50

           Venezuela ..................................................   50

         Article 10.  Relationship between different kinds of uses ....   51

           Colombia ...................................................   51

         PART III.  PLANNED MEASURES ..................................   51

         General comments and observations on part III ................   51

           Hungary ....................................................   51

           United States of America ...................................   51

           Switzerland ................................................   52

         Article 11.  Information concerning planned measures .........   52

           Colombia ...................................................   52

           Portugal ...................................................   53

           Turkey .....................................................   53

         Article 12.  Notification concerning planned measures with
         possible adverse effects .....................................   53

           Colombia ...................................................   53

           Ethiopia ...................................................   54

           Hungary ....................................................   54

           Portugal ...................................................   55

         Article 14.  Obligations of the notifying State during the
         period for reply .............................................   55

           Colombia ...................................................   55

           Hungary ....................................................   55

         Article 16.  Absence of reply to notification ................   56

           Colombia ...................................................   56

         Article 17.  Consultations and negotiations concerning
         planned measures .............................................   56

           Portugal ...................................................   56

         Article 18.  Procedures in the absence of notification .......   57

           Colombia ...................................................   57

           Portugal ...................................................   57

         Article 19.  Urgent implementation of planned measures .......   58

           Hungary ....................................................   58

           Portugal ...................................................   58

         PART IV.  PROTECTION, PRESERVATION AND MANAGEMENT ............   59

         Article 20.  Protection and preservation of ecosystems .......   59

           Ethiopia ...................................................   59

           Hungary ....................................................   59

           Portugal ...................................................   59

           Venezuela ..................................................   60

         Article 21.  Prevention, reduction and control of pollution ..   60

           Finland ....................................................   60

           Hungary ....................................................   61

           Portugal ...................................................   61

           United States of America ...................................   62

           Venezuela ..................................................   62

         Article 23.  Protection and preservation of the marine 
         environment ..................................................   62

           Portugal ...................................................   62

           Turkey .....................................................   63

         Article 24.  Management ......................................   63

           Colombia ...................................................   63

           Guatemala ..................................................   63

           Turkey .....................................................   63

           Venezuela ..................................................   64

           Switzerland ................................................   64

         Article 25.  Regulation ......................................   64

           Turkey .....................................................   64

           Venezuela ..................................................   65

         PART V.  HARMFUL CONDITIONS AND EMERGENCY SITUATIONS .........   65

         Article 27.  Prevention and mitigation of harmful conditions .   65

           Colombia ...................................................   65

           Turkey .....................................................   65

         Article 28.  Emergency situations ............................   66

           Hungary ....................................................   66

           Turkey .....................................................   66

         PART VI.  MISCELLANEOUS PROVISIONS ...........................   66

         Article 29.  International watercourses and installations in
         time of armed conflict .......................................   66

           United States of America ...................................   66

         Article 32.  Non-discrimination ..............................   66

           Colombia ...................................................   66

           United States of America ...................................   67

         Article 33.  Settlement of disputes ..........................   67

           Finland ....................................................   67

           Guatemala ..................................................   68

           Hungary ....................................................   68

           Turkey .....................................................   68

           United States of America ...................................   69

           Venezuela ..................................................   69


                               I.  INTRODUCTION


1.   At its forty-sixth (1994) session, the International Law Commission
adopted on second reading the draft articles on the law of the non-
navigational uses of international watercourses and the resolution on
confirmed transboundary groundwater and the commentaries thereto and
recommended the elaboration of a convention by the General Assembly or an
international conference of plenipotentiaries on the basis of the draft
articles.  1/

2.   At its forty-ninth session, the General Assembly considered the report
of the International Law Commission on the work of its forty-sixth session
containing the above-mentioned final draft and commentaries.  By its
resolution 49/52 of 9 December 1994, the General Assembly, taking note of the
recommendation of the Commission, invited States to submit, not later than
1 July 1996, written comments and observations on the draft articles, and
decided that, at the beginning of its fifty-first session, the Sixth Committee
should convene as a Working Group of the Whole open to States Members of the
United Nations or members of specialized agencies, for three weeks from 7 to
25 October 1996 to elaborate a framework convention on the topic on the basis
of the draft articles adopted by the Commission in the light of the written
comments and observations of States and views expressed in the debate of the
forty-ninth session of the General Assembly.  2/

3.   As at 30 July 1996, comments and observations had been received from the
following States:  Colombia, Ethiopia, Finland, Guatemala, Hungary, Portugal,
Spain, Turkey, United States of America, Venezuela and Switzerland.

4.   The written comments and observations received from States are
reproduced in section II below.  In order to facilitate their consultation by
delegations, it has been deemed advisable to group them under three
categories:  (a) general comments and observations; (b) suggestions concerning
a preamble to the draft articles; and (c) comments and observations relating
to specific draft articles.

5.   Further comments and observations received after the issuance of the
present document will appear as addenda thereto.


              II.  COMMENTS AND OBSERVATIONS RECEIVED FROM STATES

              A.  General comments and observations on the draft

                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     The Government of Finland attaches great importance to the draft
articles not only because the General Assembly resolution (2669 (XXV)) which
recommended that the International Law Commission should take up the study on
the non-navigational uses of international watercourses, resulted from a
Finnish initiative, supported by the other Nordic countries as well as other
countries, but also because of the importance of legal problems relating to
the use of international watercourses.  The growing impact on international
watercourses caused by human activity, decreasing water resources as well as
flooding and environmental catastrophes emphasizes the need to regulate the
non-navigational uses of international watercourses.  The Government of
Finland is of the view that the adoption of the draft articles, with such
amendments as may be necessary, would contribute considerably to the
development of the international law concerning the non-navigational uses of
international watercourses.

     Finland welcomes the fact that the protection of international
watercourses from the adverse effects of human activities has been addressed
by the draft.  In this connection Finland wishes to draw attention to the
United Nations Conference on Environment and Development which adopted
Agenda 21 at Rio de Janeiro in June 1992.  Chapter 39, paragraph 1 of
Agenda 21 provides, inter alia, that "the following vital aspects of the
universal, multilateral and bilateral treaty-making process should be taken
into account:

         "(a)  The further development of international law on sustainable
     development, giving special attention to the delicate balance between
     environmental and developmental concerns;

         "...

         "(e)  Future projects for the progressive development and
     codification of international law on sustainable development should take
     into account the ongoing work of the International Law Commission." 
     3/

     In the view of Finland, the principle of sustainable development, which
has become widely quoted and accepted since the Rio Conference, has not been
adequately reflected in the draft articles.  The concept of sustainable
development can only be found in article 24 of the draft articles.  Moreover,
the general principles of the draft articles (part II) do not recognize the
polluter-pays principle or the precautionary principle.

     Finland agrees with the International Law Commission that the classic
principles of equitable and reasonable utilization of water resources now
codified in the draft articles are essential.  The search for a balance
between these principles is in accordance with the aim of sustainable
development.

     Finland would also like to draw attention to the two Conventions
concluded within the United Nations Economic Commission for Europe (ECE),
namely the Convention on the Protection and Use of Transboundary Watercourses
and International Lakes signed at Helsinki on 17 March 1992 as well as the
Convention on Environmental Impact Assessment in a Transboundary Context,
signed at Espoo, Finland, on 25 February 1991.  These Conventions deal partly
with analogous legal problems, while their solutions are not necessarily
consistent with the draft articles proposed by the International Law
Commission.  The first-mentioned Convention will enter into force in two
months while the latter still requires a few more ratifications.  It is the
view of Finland that it would be necessary to pay attention to the
harmonization of the draft articles with the above-mentioned Conventions in
certain respects.


                                   GUATEMALA

                                                          [Original:  Spanish]

                                                          [28 June 1996]      

     The draft articles have some similarity with the Helsinki Rules.  The
only difference is that whereas in the draft articles the term "watercourse"
is used, the Helsinki Rules use the term "basin".  For this reason adoption of
the draft articles might be detrimental to some countries.

     Historically, concern over the use of an "international watercourse"
related almost exclusively to navigation.  There was little need to be
concerned with any portion of the drainage basin other than the navigable
channel of the stream.

     As a result of the relatively recent development of multiple uses of
"international watercourses", concern is no longer limited to the navigable
portion of the "international watercourse", but embraces all the waters of the
system comprising the international drainage basin.

     The drainage basin is an indivisible hydrologic unit that must be viewed
holistically so as to optimize the utilization and development of any portion
of its waters.  This conclusion is of particular significance when it is
appreciated that a State, while not situated on the main stream of the basin,
may nevertheless supply substantial quantities of water to the stream; such a
State is then in a position to interfere with the supply of water through
actions affecting the water flowing within its own territory.

     Accordingly, with the aim of reconciling potential or actual conflicts
in the event of the development of multiple uses and of providing for the
optimum rational development of a common source to the benefit of each State
in whose territory any part of the system is situated, it has become necessary
to focus on the question of the concept of the drainage basin.

     An international drainage basin is the entire area supplying both
surface and groundwater to the main river, stream or lake, or other common
terminus.

     As a result of certain geological characteristics, groundwater may, in
certain circumstances, flow in a different direction, or have a different
outlet, to surface water in the same area.  Moreover, in rare instances,
groundwater may gather in underground bodies which are not readily
differentiated.

     Groundwater forming part of the drainage basin is that which contributes
to its main river, a stream or lake, or other common terminus.

     With respect to equitable and reasonable utilization and participation,
these criteria are similar to those applicable to international hydrologic
basins, since they reflect the key principle of international law in this
domain, that in an international basin each State has the right to reasonable
use of the waters of the drainage basin.

     It is recognized that each State in the basin has rights which are equal
in nature to and correlative with those of each of the other States of the
basin.  These equal and correlative rights of use among the States of the
basin do not,  of course, mean that each State will enjoy identical
participation in the uses of the waters.  That will depend on the weight
accorded to the relevant factors.

     Use by a basin State must take account of the economic and social needs
of the other States of the basin in the use of the waters, and vice versa.  As
a result it may be that a basin State has the right to use water in greater
quantities than its neighbours in the basin.  The concept of equitable
participation means maximizing the benefit for each State of the basin in the
use of the waters while minimizing the detriment to each user.

     To enjoy the right to protection a use must be "beneficial", that is, it
must be economically and socially valid, in contrast, for example, to a
diversion of water by a State solely for the purpose of pressuring another
State.

     A "beneficial use" need not be the most productive possible use of the
water; nor need there be use of the most efficient means of avoiding wastage
and ensuring maximum utilization of the water.  With regard to the first
point, to proceed in any other manner would dislocate national economies; as
for the second point, the obvious imperfection of the solution adopted
reflects the financial constraints affecting many States.  Implementation of
this concept is not intended to encourage wastage but to maintain States in a
duty of efficiency in line with their financial resources.  Of course, in this
regard account will be taken of the ability of a State to secure international
financing.  Thus, an advanced and prosperous State using flooding as a means
of irrigation may be required to develop a more efficient, less wasteful
system; on the other hand, a developing State using the same method may be
granted additional time to obtain the resources needed for the required
improvements.

     The relevant factors provide specific and essential, but flexible,
guidelines to ensure the protection of the "equal rights" of all the States of
the basin in sharing the waters.  Under the rules established, "all relevant
factors" must be taken into account.  It would not be possible to readily
compile an exhaustive list of all the factors, since others might come into
play in specific cases.

     The relevant factors to be considered in determining what constitutes
reasonable and equitable participation will be established.

     In essence, no factor has a fixed weight and not all factors will be
relevant in every case.  Each factor is given a weighting reflecting its
importance in relationship to all the others.  And no factor occupies a pre-
eminent position per se with respect to any other.  Further, to be relevant, a
factor must help to determine how to satisfy the social and economic needs of
the States of the basin.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     Hungary commends the International Law Commission for the revised draft
articles.  It goes without saying that in view of its geographical situation
Hungary has an overriding interest in a well-founded legal regime of an
equitable and reasonable utilization of international watercourses for both
navigational and non-navigational purposes.  It is therefore worthwhile to
recall that the Hungarian delegation was among the first delegations which
resolutely supported the initiative of Finland to inscribe an item related to
the various uses of international watercourses on the agenda of the General
Assembly in 1970.  During the last 25 years Hungary has always followed with
keen interest the consideration of this item both in the International Law
Commission and in the General Assembly.  It has submitted written observations
several times on this issue, quite recently in 1993 (A/CN.4/447/Add.2).

     During the consideration of the report of the International Law
Commission on the work of its forty-sixth session in 1994, the representative
of the Republic of Hungary made a special statement on chapter III of the
report, i.e. on the law of the non-navigational uses of international
watercourses (1 November 1994).  In his statement he emphasized that the
latest developments in this field should be duly taken into account, such as,
for example, the 1992 Helsinki Convention on the Protection and Use of
Transboundary Watercourses and International Lakes, the relevant documents of
the 1992 United Nations Conference on Environment and Development, the 1994
Sofia Convention on Cooperation for the Protection and Sustainable Use of the
Danube River, and so forth.

     In view of the above the comments and observations [which appear below]
will only be confined to those issues which Hungary considers as being of
major importance in the progressive development and codification of the law of
non-navigational uses of international watercourses.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     The regulation of international waters has assumed today a vital
importance in the peaceful relations among human communities organized as
States.  This degree of importance becomes even more obvious as one realizes
that water is a natural resource which is scarce and limited and whose quality
has repercussions in the ecosystems of which it is the core, thus capable of
harming the living conditions of both present and future generations. 
Undoubtedly, humanity has already faced this challenge.  It demands the
adoption of balanced and long-lasting measures capable of confronting the
problems of pollution and over-exploitation of the essential resource that is
water.

     The fundamental guiding principles that will form the rules to be
negotiated by States concerning the use and management of international
watercourses must include those already adopted by the most modern instruments
of international law and which reflect the demands of international legal
scholarship.

     Among others, we refer here to the Convention on Environmental Impact
Assessment in a Transboundary Context, concluded at Espoo, Finland, in 1991,
to the Convention on the Protection and Use of Transboundary Watercourses and
International Lakes, concluded at Helsinki in 1992, to the Convention on
Biological Diversity and to the United Nations Framework Convention on Climate
Change, as well as to the Rio Declaration.

     Faithful to its role as a co-participant in the elaboration of the
principles referred to, Portugal believes that it should also defend them in
the present framework and looks forward to contributing in this way to the
improvement and coherence of the international legal system and to the trust
that States must place in it.

     The valuable proposal of the International Law Commission on the
non-navigational uses of international watercourses, though it takes into
account the need to balance the quality with the quantity of water to be
shared, does not fulfil the expectations of the watercourse States which are,
in fact, its main recipients.

     The Framework Convention does show concerns for the protection and
preservation of ecosystems and marine environment and the management of
international watercourses (Part IV - Protection, preservation and
management).  Nevertheless, it is silent or has insufficient provisions
regarding the concepts and provisions present in the most modern legal
instruments.

     Therefore, one cannot find in the draft articles concepts such as water
basin or integrated management.  one can see sufficiently enshrined neither
substantive principles such as sustainable development, precaution and
preventive action nor their procedural corollaries:  the requirement of
environmental impact assessments, of transparency, of broadly informing and
notifying the public and of consultation and negotiation on the impact of
planned measures.

     However, and in spite of these objections, Portugal will not question at
this stage the fundamental structure of the Framework Convention, and
therefore its contribution will assume the format of ad hoc proposed
amendments.


                                     SPAIN

                                                          [Original:  Spanish]

                                                          [30 May 1996]       

     The Spanish Government has demonstrated its interest in this topic by
making a number of oral interventions in the International Law Commission's
work in this field in the Sixth Committee of the General Assembly.  In its
comments, the Spanish Government observed that the work in question
represented a significant contribution to the development of a legal regime of
the non-navigational uses of international watercourses.  It also expressed
the view that the main thrust of this work was satisfactory, a view which it
now reiterates with respect to the draft articles that are the subject of the
present comments and observations.  Notwithstanding this general view, the
Spanish Government wishes to make, in a purely constructive spirit, the
specific comments [which appear below].


                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     While the general approach of the draft articles seems to give
prominence to the preservation of international watercourses and their
environments, when it comes to formulating specific rules, they mainly focus
their attention on preventing possible damage.  However, the main purpose
should be to achieve an equitable and reasonable arrangement regulating water
utilization between the watercourse States.  Any other approach turns the
draft articles into a document which unilaterally restricts, in terms of both
quantity and quality, the utilization rights of States in which watercourses
originate.  Upstream countries should also be treated in a more balanced way
regarding both the protection and development of their environment as well as
improving the living conditions of their population in the watercourse area. 
In this context, it would be appropriate to devise the draft articles
according to the generally accepted concept of "sustainable development" which
reconciles the protection of the environment with the requirements of economic
development.  Due attention should also be paid to establishing an equitable
balance of rights and obligations among all watercourse States.  While these
requirements were taken into account to a certain extent in the general
principles set forth in section II of the draft articles, the same cannot be
said of sections III and IV.

     As mentioned, inter alia, in General Assembly document A/49/738 of
2 December 1994 and in the note of the Secretary-General dated
22 December 1994, the draft articles were devised to serve as a framework
agreement (convention).  The Turkish Government also considers them in this
form.  However, they clearly include provisions which go far beyond the scope
of a framework document, which should be limited to enacting basic principles.

Therefore, the draft articles should be confined to setting forth the
conceptual framework and the principles regarding the law of the non-
navigational uses of international watercourses.  As to specific watercourses,
bilateral or regional arrangements between watercourse States should be
concluded which take into account the characteristics of each of them.  In
view of this, it would be necessary to rearrange sections III and IV of the
draft articles so as to avoid too specific and detailed provisions.

     Lastly, it appears that, in drafting the articles, jurisprudence
concerning the law of the sea has been used to some extent as a model.  This
is particularly so in view of the fact that international jurisprudence is
relatively sparse where international watercourses are concerned.  Though the
seas also consist of water and geography plays a role in both cases, too much
emphasis should not be placed upon this similarity since the differences
between the legal natures of these two fields are considerable.  The
jurisprudence of the law of the sea regulates and evaluates the rights and
competences of States regarding a mainly international area.  It is not
conceivable that the same legal principles can be applied to watercourses over
which the concerned States have full sovereignty within their territories.

     The views of the Turkish Government on specific articles of the draft
articles here below should be considered in the light of the above general
observations.


                           UNITED STATES OF AMERICA

                                                          [Original:  English]

                                                          [28 June 1996]      

     The United States of America is pleased to provide the following
comments on the draft articles adopted by the International Law Commission on
the law of the non-navigational uses of international watercourses, as
requested by the Secretary-General in his communication of 22 December 1994. 
These are preliminary comments prior to the convening by the Sixth Committee
of a Working Group of the Whole in October 1996 to elaborate a framework
convention on this topic.

     The United States wishes to express its appreciation to the
International Law Commission for its efforts over a number of years in
drafting articles on this important subject-matter.  The legal regime covering
management and uses of international watercourses is a crucial topic for the
international community, and one which has an important bearing on the
protection of the global environment.  We believe that the International Law
Commission, and in particular its Special Rapporteurs, have made an important
contribution by virtue of their work on the law of the non-navigational uses
of international watercourses.  We are pleased that four distinguished
American jurists have contributed to this achievement by serving as Special
Rapporteurs.

     The General Assembly supported the recommendation of the International
Law Commission to elaborate a framework regime establishing rules and general
guidelines for cooperation and dispute avoidance in the absence of existing
watercourse agreements.  The draft articles provide useful guidance for many
specific contexts in which water use issues may arise between States.  At the
same time, the articles recognize that States may wish, by agreement, to
adjust the rules to specific situations.

     The International Law Commission approach is to create a framework of
principles that are essentially residual in nature and are subject to
variation in particular agreements.

     The United States has entered into numerous and long-standing
watercourse agreements with its neighbours, Canada and Mexico.  Through
bilateral commissions, watercourse issues are resolved among the United
States, Mexico and Canada on the basis of openness, cooperation and mutual
consent.  We see such direct negotiations as the cornerstones of the
International Law Commission approach to dealing with watercourse issues.  For
example, our agreements with Canada and Mexico may in some particulars differ
from principles contained in the International Law Commission's draft, but
these agreements are none the less consistent with the International Law
Commission approach of respecting bilateral arrangements.

     Maintaining this pervasive element of flexibility is essential to the
success of these negotiations.  In that regard, we will wish to review
article 3 carefully, to ensure that it is clear that the new framework will
not override existing cooperative arrangements, even where some issues dealt
with in the International Law Commission articles are not also covered in the
existing arrangements.

     The United States also supports the emphasis given by the International
Law Commission to cooperative efforts.  Water is a finite resource.  As
populations grow and industrialization takes hold, the need for States to
cooperate in the shared use of this resource becomes more critical.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     The approach adopted by the International Law Commission consists of
preparing draft articles which set forth general principles and rules relating
to all non-navigational uses of international watercourses.  This draft can be
further elaborated through specific watercourse agreements which take into
account the characteristics of each watercourse and the needs of the
respective States.  From this standpoint, we find the draft satisfactory, and
it appears to contain fairly adequate provisions on such complicated issues as
those for which a coherent legal framework is sought.

     The draft articles are intended, first of all, to prevent any
environmental degradation and, at the same time, to establish rules of
conduct; persons guilty of violating these rules would incur international
liability.  Thus, there is a close relationship between these articles and the
Commission's current codification efforts with respect to the topic of
international liability for injurious consequences arising out of acts not
prohibited by international law.

     The draft also reaffirms the principle of equitable use, in accordance
with which all uses are subject to the obligation not to cause significant
harm to other watercourse States.

     It is clear that, in many cases, a set of legally binding rules with
respect to international watercourses could help to specify and clarify the
rights and duties of riparian States and thus facilitate international
agreement concerning the use of such watercourses.  As a matter of fact, the
problems addressed in some of the draft articles have been dealt with in
sufficient detail to permit their incorporation into a convention.


                                  SWITZERLAND

                                                           [Original:  French]

                                                           [2 April 1996]     

     The Swiss Government has once again been invited to express an opinion
on the draft articles concerning the non-navigational uses of international
watercourses.  Switzerland has already produced written observations twice on
this draft,  4/ and its representatives on the Sixth Committee of the
General Assembly have commented on it on two occasions.  5/  The Swiss
Government nevertheless intends to respond to this latest invitation, even
though this may lead it to repeat opinions already expressed, in order both to
show its interest in the subject dealt with by the draft and to recapitulate
the main points of its position.

     The work of the International Law Commission on the non-navigational
uses of international watercourses has undeniably made a major contribution to
the development of precise rules in an area long neglected by legal science
despite its importance for everyday life.  The draft articles resulting from
the Commission's work have confirmed and clarified certain basic concepts such
as the notion of international watercourse, the principles of equitable and
reasonable utilization and the prohibition on causing significant harm.  They
also propose a set of rules to be followed when a State plans to use a
watercourse for a new purpose.  Finally, they formulate a number of rules for
environmental protection.  Given the advantages thus offered by the draft
articles, the Swiss Government endorses their general thrust.

     However, a number of points remain to be clarified before the draft can
become a treaty.  These points will be examined below, beginning with issues
of a general nature, then the basic principles governing the use of
watercourses and, lastly, institutional and procedural rules.

     The work of the International Law Commission on the non-navigational
uses of international watercourses, and the resulting draft articles, have
enabled significant progress to be made in a shifting, grey area of
international law.  As a result, the Swiss Government cannot but welcome, in
principle, the conclusion of a general convention which would put that
progress into tangible form.

     The observations made show that the Swiss Government does not believe
that the text produced by the Commission can be adopted in its present form;
some refinements are needed.  There will have to be consultations and
negotiations on the points dealt with in these observations, as well as those
raised by other Governments, before a general convention can be adopted and
opened for signature; otherwise, we would be left with an instrument which a
number of States would be unable to accept.  Ratification of the new
convention by the overwhelming majority of international watercourse States
seems essential, however, if only to ensure that a set of draft articles, in
itself excellent and which has taken more than 20 years of work to produce,
does not come to a dead end.


          B.  Suggestions concerning a preamble to the draft articles

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     The preamble to be drafted should include an express reference to
principle 2 of the Rio Declaration on Environment and Development relating to
the sovereign right of States to exploit their own resources provided that
they do not cause damage to the environment or of areas beyond the limits of
their national jurisdiction.


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     The preamble should include at least the following three paragraphs:

         "Commending the work undertaken within the auspices of the
     International Law Association in the field of the non-navigational uses
     of international watercourses, and particularly the adoption, in 1996,
     of the Association's Helsinki Rules,

         "Recalling the provisions and principles of the Rio Declaration on
     Environment and Development of 1992,

         "Noting the provisions of the 1992 Economic Commission for Europe
     (ECE) Convention on the Protection and Uses of Transboundary
     Watercourses and International Lakes as well as the provisions of the
     1991 ECE Convention on Environmental Impact Assessment in a
     Transboundary Context."


       C.  Comments and observations relating to specific draft articles

                             PART I.  INTRODUCTION

Article 1.  Scope of the present articles

                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     In article 1 of the Convention, Finland would like to insert the word
"protection" before the words "conservation and management" in order to better
cover measures under part IV of the draft articles.

                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     Article 1, which defines the scope of the draft articles, correctly
leaves out the navigation issue.  Nevertheless, the second paragraph of the
article is at variance with this approach.  That paragraph foresees that the
navigation issue will be included within the scope of the draft articles if
other uses of the water either affect or would be affected by navigation. 
This approach gives priority to the draft articles in respect of the
application of rules related to mixed use which involve simultaneously
navigation and other water uses.  However, in practice, it would not be
appropriate to make a ruling on a specific case concerning a mixed use on the
basis of the draft articles without having a thorough knowledge of the
specific characteristics of the watercourses in question, i.e. whether or not
the watercourse is used for navigation and how the agreement relating to
navigation would eventually be disposed of.  To avoid any such complications,
it is preferable either to exclude the navigation issue altogether or to
ensure that the problems of mixed use mentioned in paragraph 2 do not fall
solely within the scope of the draft articles.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     The term "use of international watercourses" utilized in draft article 1
can be broadly interpreted.  However, the drafting of this provision is fairly
satisfactory, in that it establishes a general concept of non-navigational
uses, including uses of watercourses and of their waters and measures of
conservation and management.

Article 2.  Use of terms

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In article 2 (b), the reference to groundwaters should be deleted, as
this matter is under the exclusive jurisdiction of the State which exercises
sovereignty over the subsoil and is therefore not subject to international
regulation.


                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     Ethiopia does not agree with the formulation of draft article 2 (b) in
its present form as it applies to all the hydrographic components of
international watercourse.  We hold that watercourse should be treated as
having a "relative international character".  A definition of a watercourse,
embracing "a system ... constituting by virtue of their physical relationships
a unitary whole" will create the effect of extending the scope of
international regulation to cover the entire territory or a major part of the
territory of a State which falls within the scope of its sovereignty.  This
could result in excessive interference by States in each other's legitimate
internal affairs.  Hence, it is essential to limit the scope of the
subparagraph to the notion of the relative international character of a
watercourse in order to serve as a guarantee against excessive or improper
broadening of the scope of application of the draft article.

     A proper balance of the interests of all States should be created and
any attempt to shift natural priorities or accord unacceptable rights of
interference to one or more States in the sovereign domain of another State
should be avoided.  An international watercourse should be treated as a system
only in the limited sense of its uses causing significant harm or material
injury to co-riparian States.


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     Finland recalls the observations submitted by the five Nordic
countries - Denmark, Iceland, Norway, Sweden and Finland - in 1992 to the
draft articles adopted provisionally on first reading by the International Law
Commission.  The term "international watercourse" remains somewhat unclear and
ambiguous and Finland submits that in the further elaboration of the draft
articles an alternative expression "transboundary waters" be still considered.

This expression is used in a very similar context in the ECE Convention on the
Protection and Use of Transboundary Watercourses and International Lakes.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     In Article 2 (Use of terms) the term "watercourse" is used.  Although
Hungary would have preferred to have references to "the drainage basin", or to
"the international catchment area" in subparagraph (b), we are able to accept
the definition of the watercourse as a "system of surface waters and
groundwaters" as a compromise.  We wish, however, to stress the importance of
the catchment/drainage area approach, which is being used in a number of legal
instruments, such as in the 1992 Helsinki Convention and in the 1994 Sofia
Convention.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 2 (b) should be amended to read as follows:

         "(b)  'watercourse' means a system of surface waters and groundwaters
     and related ecosystems constituting by virtue of their physical
     relationship a unitary whole and normally flowing into a common
     terminus".

     The reasons for the proposed amendment to article 2 (b) are the
following:

     The proposed text aims at minimizing the flaws of the expression
"international watercourse" without, however, opting for the preferable
expression "water basin", since such an expression would go against
fundamental choices made by the drafters of the original text.

     The addition of the expression "and ecosystems" corresponds to the
fundamental choice underlying Portugal's comments:  that of an "ecosystemic"
and "environmentalist" perspective which sets legal conditions on the
admissible uses of water both of water basins and of international
watercourses.

     With such an addition, Portugal would like to underline that it believes
the relations between the water and the "adjacent" or "complementary"
environmental elements - the surrounding land, the air - are unitary and must
be taken into consideration as such.


                                    TURKEY

                                                          [Original:  English]

                                                           [5 July 1996]      

     In article 2, dealing with the use of terms, subparagraph (a) stresses
merely that if parts of a watercourse are situated in different States, it is
considered an "international watercourse", and no mention is made of the
relations between these parts.  This issue is very important, however.  While
a watercourse may constitute a border between two or more States, it may also
be a transboundary watercourse crossing from the territory of one State to the
other.  In the case of a transboundary watercourse, each of its parts are
situated clearly and distinctly in the territories of different States,
whereas in the case of a watercourse forming a boundary, it is virtually
impossible to separate the watercourse definitely and utilize its waters
independently from the other riparian States.  Given the fundamental
differences between these two types of international watercourses, especially
in respect of the utilization of their waters, to make no distinction between
watercourses forming a boundary and transboundary watercourses and then
subject these two categories to the same legal rules is unrealistic as well as
against the legal principle of equitable utilization.  Therefore, it is
necessary either to add a new paragraph to article 2 spelling out the
distinction between these two types of international watercourses or to
include this concept in subparagraph (a).  Obviously, once this distinction is
mentioned in article 2, it should be appropriately reflected in the other
relevant provisions of the draft articles.

     With regard to the definition in subparagraph (b) of article 2, although
in hydrological terms it can be understood that surface waters and
groundwaters constitute a unitary whole, such a unity cannot be taken as a
basis for determining the rights of utilization.  The draft article's approach
to this matter does not correspond also to existing international practice,
where many bilateral agreements do not take groundwaters into account. 
Therefore, groundwaters should be excluded from the scope of this article.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     Article 2 is one of the key articles of the draft.  During the years in
which the Commission discussed this topic, the most hotly debated question was
the definition of the term "international watercourse".  From the outset, the
so-called traditional, or restrictive, definition of the term (which
originated with the Congress of Vienna in 1815), one limited to watercourses
that form or cross boundaries, conflicted with the broad interpretation, in
which international watercourses are identified with drainage basins (the term
currently used is "international water catchment area") or international water
systems, as in the Treaty of Paris, under the influence of the Helsinki Rules
on the Uses of the Waters of International Rivers.

     The aim of the draft is to define not only the term "international
watercourses", but also the territorial scope of the draft rules.  The working
assumption used by the Commission in 1980 was designed to resolve the conflict
between the two concepts through the introduction of a functional term derived
by combining the international nature of a watercourse with its transboundary
effects.  In other words, if a measure adopted with respect to a water system
has consequences for the territory of another watercourse State, then what is
involved is an international watercourse; in the absence of such consequences,
the watercourse is not an international one.

     In the view of the Government of Venezuela, this draft article - the
product of consensus in the Commission - is acceptable as drafted, except that
the order of subparagraphs (a) and (b) should be reversed.

     Lastly, in the view of the Government of Venezuela, it is essential to
amend the draft articles in order to clarify the terms used in the text, and
particularly the equivalence between the terms used in the English and French
versions and those used in the Spanish text.

Article 3.  Watercourse agreements

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     The wording of article 3, paragraph 3, should be made clearer; as
currently drafted, it appears to imply that the opinion of a single
watercourse State regarding the need to adjust or apply the provisions of the
draft articles can place other watercourse States under an obligation to enter
into negotiations for the purpose of concluding an agreement or agreements.

     Furthermore, the reference to "good faith" should be deleted from the
paragraph; it is unnecessary to reaffirm this principle in every text
negotiated within the framework of the Organization, as it is embodied in the
Charter of the United Nations, in the preamble to the Vienna Convention on the
Law of Treaties,  6/ which notes that it is universally recognized, and in
article 26 of that Convention, which stipulates clearly that "every treaty in
force is binding upon the parties to it and must be performed by them in good
faith."


                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     With regard to paragraph 1 of article 3 and the form of the future legal
instrument to be adopted on non-navigational uses of international
watercourses, Ethiopia opts for the approach of a framework agreement rather
than model rules as this will have the advantage of a legally binding
instrument.  The framework agreement will provide for watercourse States
general principles and rules governing the uses of international watercourses
and set guidelines for negotiation of future agreements.  Ethiopia, therefore,
endorses the approach of adopting a framework agreement generally followed in
this respect.

     However, once this mechanism is adopted, there is no need to resort to
the use of the word "adjust" in the same paragraph as this will create more
complications and put a limit on the freedom of the parties to apply the
general principles and guidelines in any manner they see fit to their
particular international watercourse.  The insertion of the word "adjust" will
unduly prejudice future negotiations on watercourse agreements in favour of
some watercourse States which hold preconceived notions that an international
watercourse has unique and historical characteristics simply to assert long-
standing claims.  Watercourse agreements should be left to watercourse States
to negotiate and to voluntarily reach agreement, on the basis of the framework
agreement, without prejudging whether they have to adjust or modify it to fit
the particular needs of the international watercourse.  Therefore the words
"and adjust" should be deleted from paragraph 1 of article 3.

     For the reasons given with regard to article 3, paragraph 1, Ethiopia
maintains that there is no particular need for the inclusion of subparagraph 3
in article 3, which refers to characteristics of a particular international
watercourse, and the whole paragraph should be deleted.

     The general nature of the framework agreement should be maintained and
any adjustment or application of the present articles to the needs of a
particular international watercourse should be left to the parties to
negotiate and agree by themselves.  There should not be undue interference in
the freedom of the parties to negotiate in good faith to conclude a
watercourse agreement.


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     Article 3 takes into account the possibility of watercourse States
entering into watercourse agreements.  In the view of the Government of
Finland, the question of the relationship between these draft articles and
watercourse agreements remains, however, unclear.  Further consideration
should be given to possible provisions which would regulate this relationship
more precisely.

     The provisions of article 3 are not designed to apply to situations
where a regional agreement is of a similar nature and purpose to that of the
draft articles.  For example, the ECE Convention on the Protection and Use of
Transboundary Watercourses and International Lakes is rather a parallel to the
draft articles than an agreement which is required because of the
characteristics and uses of a particular international watercourse.  The
commentary to this article implies that agreements of this kind are not even
intended to be covered by these provisions.  This leaves the relation of such
parallel agreements unclear.

     Existing agreements between some watercourse States may include
provisions the relation of which to the provisions of the draft articles would
similarly remain unclear.  It might be advisable to clarify the wording of
this article so that it would be clear whether watercourse agreements referred
to in this article also apply to already existing agreements.

     The International Law Commission's commentary to article 3 recognizes
that optimal utilization, protection and development of a specific
international watercourse are best achieved through an agreement tailored to
the characteristics of that watercourse and to the needs of the States
concerned.  It is easy to agree with such conclusions.  This approach should
also be better reflected in the text of this article.  Therefore it should
further be considered whether article 3 could encourage or even require States
parties to conclude more specific agreements on certain aspects of the non-
navigational uses of their international watercourses.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 3 should be amended as follows:

         "1.   Watercourse States may enter into one or more agreements,
     hereinafter referred to as 'watercourse agreements', which apply and
     adjust the provisions of the present articles to the characteristics and
     uses of a particular international watercourse or part thereof in
     accordance with the principles of international law.

         "2.   Where a watercourse agreement is concluded between two or more
     watercourse States, it shall define the waters to which it applies. 
     Such an agreement may be entered into with respect to an entire
     international watercourse or with respect to any part thereof or
     particular project, programme or use, provided that the agreement does
     not adversely affect, to a significant extent, the use by one or more
     other watercourse States of the waters of the watercourse.  Such
     agreement shall, when the need arises, take into consideration an
     environmental impact assessment.

         "3.   Where a watercourse State considers that adjustment or
     application of the provisions of the present articles is required
     because of the characteristics and uses of a particular international
     watercourse, States shall consult with a view to negotiating in good
     faith for the purpose of concluding a watercourse agreement or
     agreements in accordance with the principles of international
     environment law aiming at an enhanced protection of the watercourse and
     its ecosystems."

     The reasons for the proposed amendment to article 3 (2) are as follows:

     The aim of this amendment is to provide the watercourse States with a
concrete goal that might enable them to negotiate in an objective and useful
manner.  This purpose is linked to environmental considerations and thus
places in perspective the possible gains to be obtained by the uses foreseen
for the river.

     The inclusion of an environmental impact assessment reflects the
importance given by Portugal not only to the substantive norms but also to the
procedural rules of modern international law of the environment.  It is,
furthermore, an example of coherence of the international position taken by
Portugal.

     Nevertheless, the proposed requirement is not an absolute one, since
there might be situations in which no need arises for an environmental impact
assessment.  However, when the environmental impact assessment is already
provided for by regional or other multilateral agreements, this requirement
must be fulfilled.  Within the framework of the draft articles on the law of
the non-navigational uses of international watercourses, an assessment should
be also done if one party requests it.

     The reasons for the proposed amendment to article 3 (3) are as follows:

     This amendment introduces a substantive guideline for the consultations
and negotiations between States, that of adapting the existing regimes to the
innovative principles of the evolving international law of the environment.

     Moreover, it further clarifies the objective:  the enhanced protection
of the watercourse and of its ecosystem.  The prohibition of regression in the
substantive regulation of a particular situation is also implicit in the text
now proposed.

     This text, partly inspired by the Helsinki Convention, also allows a
solution for the delicate question of the compulsory nature of consultations
and negotiations because, although such an obligation is not expressly
foreseen, it only takes the unilateral position of an interested State to
trigger the procedure.


                                     SPAIN

                                                          [Original:  Spanish]

                                                          [30 May 1996]       

     Between the alternatives proposed by the Special Rapporteur of the
International Law Commission of a framework convention or model rules, the
Spanish delegation in its statements to the Sixth Committee of the General
Assembly in 1993 and 1994 expressed strong support for a framework convention.

In its commentary on article 3 of the draft articles, the International Law
Commission expressed the view that what is envisaged is a framework
convention.  Nevertheless, the Spanish Government believes that doubts may
arise as to the exact nature of the instrument.  The fact of the matter is
that, despite the assertion in the above-mentioned commentary that the
provisions of the draft "are essentially residual in character", this article
lacks a provision which clearly and specifically states that the articles of
the draft are applicable on a subsidiary basis, that is to say, not only when
specific agreements are silent on the matter but also in the absence of such
agreements.  All of this, naturally, is without prejudice to the possibility
that some provisions of the draft articles may already be mandatorily and
directly applicable as deeply rooted customary norms of general scope.  This
is true, in particular, of the important article 5 on equitable and reasonable
utilization and participation.

     In conformity with paragraph 1 of the above-mentioned article 3,
"watercourse States may enter into one or more agreements ... which apply and
adjust the provisions of the present articles", which seems to indicate that
these specific agreements may derogate from the rules of the future
convention.  But the primacy of specific agreements over the future convention
is clear only where such specific agreements are subsequent to the entry into
force of the convention.  Under the general rules of the law of treaties,
however, the convention would take precedence over previously concluded
specific agreements.  This drawback would be avoided if the future convention
includes a provision to safeguard the force of specific agreements which are
concluded prior to the entry into force of the convention.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     Draft article 3 is based on sound premises, supported by precedents and
bolstered by theoretical assumptions, which indicate that the best way of
regulating international relations in the area of the non-navigational uses of
international watercourses is for the watercourse States to conclude
international bilateral or multilateral agreements, which the draft refers to
as "watercourse agreements".

     This formulation reflects two aspects of regulation:  the first aspect
concerns watercourse agreements, and the second concerns the general
principles and norms codified in the draft.

     In accordance with the approach taken in the draft articles, the purpose
of watercourse agreements is to apply general principles and norms and to
adapt them to specific situations.  There is ample scope for this, since such
principles and norms, which are used as guidelines, must be taken into account
when specific agreements are concluded.

     It should, however, be noted that, by definition, general principles and
norms have a variable content, meaning that their importance changes over
time.  It would seem appropriate, therefore, to include in the draft a norm
which anticipates developments attributable to significant changes in
circumstances or which, at any rate, stipulates the need to adapt existing
treaties, or those which may be concluded, to new circumstances.

     Accordingly, it is proposed that a new paragraph be included in article
3 which would read as follows:

         "The watercourse agreements to be adopted by States shall stipulate
     that such agreements may be adapted or modified if a significant change
     occurs in the circumstances which gave rise to the negotiation of the
     agreement in question."


                                  SWITZERLAND

                                                           [Original:  French]

                                                           [2 April 1996]     

     The first general issue arising from the draft articles is that of the
juridical nature of the proposed rules.  According to article 3, paragraph 1,
watercourse States may enter into "watercourse agreements" which "apply and
adjust" the provisions of the draft articles.  This formulation is somewhat
ambiguous and seems to allow the parties to waive the rules contained in the
draft articles.  Two other points are left unclear:  whether some or all of
the provisions of the draft articles are intended to codify customary rules
and what is to become of earlier watercourse agreements.

     While this is not stated in the draft, it is clear that some of its
provisions, such as the rule of equitable and reasonable utilization and the
prohibition on causing significant harm to other watercourse States, reflect
and clarify existing general rules.  It is equally clear that other rules,
such as the one dealing with the settlement of disputes, to name but one, are
purely of a treaty nature.  Indeed, this duality in the nature of
international norms is also found in other conventions aimed at the
progressive development and codification of international law, such as the
1969 Vienna Convention on the Law of Treaties, where the instrument itself
does not specify which of its rules belong to one category or the other.  In
the field of international watercourses, characterized as it is by a lack of
normative clarity, any attempt at classification might in any case have given
rise to endless arguments which could have threatened the success of the
Commission's work.  The Swiss Government can and must therefore support the
proposed solution, which is to make no distinction between provisions which
codify existing law and those which develop it.

     On the second point, namely, what is to become of the vast number of
existing watercourse agreements, the situation is different.  We have seen
that article 3, in speaking of "adjusting" the provisions of the draft
articles in future watercourse agreements, appears to assume that such
agreements will be able to depart from those provisions.  This seems to ensure
the primacy of future watercourse agreements over the general convention which
will result from the present draft, but what of existing agreements?  There
might be a temptation to argue that they will be wholly or partly abrogated by
the general convention, since the latter will be more recent, and that they
would therefore have to be adjusted to it.  To guard against such an
interpretation, which would destabilize the entire body of international
treaty law on the subject, the Swiss Government reiterates its suggestion that
a clause expressly safeguarding existing watercourse agreements should be
inserted in the future general convention.  7/

Article 4.  Parties to watercourse agreements

                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     Ethiopia is in agreement with the principle laid down in article 4,
paragraph 1, of the draft articles that all watercourse States are entitled to
participate in the negotiation, consultation or in becoming a party to an
agreement relating to the entire international watercourse.  There would be no
justifiable ground to exclude a watercourse State from participation in the
agreement.  This clause provides protection from the risk of a few watercourse
States appropriating a disproportionate amount of water to the exclusion of
others.  Any such action would run counter to the fundamental principle of
equitable and reasonable utilization of the watercourse.

     However, the principle of equitable and reasonable utilization will not
be properly served if participation in consultation, negotiation or in
becoming a party to an agreement by a "watercourse State whose use of an
international watercourse may be affected to a significant extent" in
paragraph 2 of article 4 is meant to apply only to a quantitative use of the
waters of an international watercourse.  The proviso must take into account
factors other than the quantitative use that adversely affects the equitable
use of the waters of a watercourse.  Any action taken with respect to use of
waters in an international watercourse under an agreement in any particular
territory is bound to produce effects beyond that territory.  For example, an
agreement between two lower riparian States appropriating a disproportionate
amount of the waters of an international watercourse for themselves could
cause adverse effects to a significant extent on the use of waters by an upper
riparian State.  There is no doubt that over the long term, such use could
have a significant effect on the equitable and reasonable use of the waters by
an upper riparian State.

     Ethiopia therefore maintains that the expression "adversely affect to a
significant extent" should be construed broadly to include factors other than
actual reduction in the quantitative use of waters.  It should not be applied
to exclude one or more States from participating in agreements that affect
their right in the use of the international watercourse.  The right of all
watercourse States to participate in the negotiation, consultation or in
becoming a party to an agreement and the obligation, of either the upper or
the lower riparian States, to refrain from concluding agreements which apply
only to part of the watercourse in order not to unduly prejudice the rights of
other watercourse States should equally be protected in all its aspects. 
Otherwise the paragraph will negate the general principle laid down in
paragraph 1 of article 3.


                                   GUATEMALA

                                                          [Original:  Spanish]

                                                          [28 June 1996]      

     Article 4, paragraph 2, should be made clearer and more concise
regarding the mechanism governing how to become a party to a watercourse
agreement and how to participate in consultations, as well as regarding
whether a State which deems itself to be affected may initiate such
consultations.


                                  SWITZERLAND

                                                           [Original:  French]

                                                           [2 April 1996]     

     Article 4, paragraph 1, of the draft articles gives all the States of an
international watercourse the right to participate in the negotiation of and
to become parties to any agreement that applies to the entire watercourse. 
This seems perfectly normal, since the fate of the entire watercourse is at
stake and all the States are therefore concerned.  If one of the watercourse
States decides to stay out of the agreement in question, the agreement will
remain a res inter alios acta for that State, since it cannot be bound by an
instrument to which it is not a party.  In addition, the watercourse States
which are parties to the agreement will be responsible vis-a`-vis the State
which is not a party for any harm which it might suffer as a result of the
implementation of that instrument.

     Article 4, paragraph 2, is more questionable; it gives international
watercourse States the right to participate in any negotiation leading to the
conclusion of an agreement that applies only to a part of the watercourse, as
well as the right to become parties to the agreement in question if it is
likely to affect them to a significant extent.  In practice, as the Swiss
Government has already pointed out,  8/ this means that a watercourse
State will be entitled to become a party to any agreement, even partial,
concerning that watercourse.  That State would thus be able to restrict the
freedom, as provided for by treaty, of the other watercourse States which had
no intention of entering into a relationship with it.  The Swiss Government
considers that, in this case, the correct solution is to be found in the rules
on the international responsibility of States:  the States parties to the
partial agreement are responsible, vis-a`-vis the third State, for any harm
which it may suffer as a result of the implementation of the agreement.  The
foregoing shows that article 4, paragraph 2, is detrimental to the freedom of
States as provided for by treaty and should therefore be deleted.


                         PART II.  GENERAL PRINCIPLES

Article 5.  Equitable and reasonable utilization and participation

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In paragraph 1 of article 5, the word "utilize" should be replaced by
the phrase "seek to utilize", which is more realistic and legally correct. 
The text would read as follows:

     "1. Watercourse States shall in their respective territories seek to
     utilize an international watercourse in an equitable and reasonable
     manner ..."

     It would also be appropriate to introduce in article 5 the concept of
"growth and sustainable development of resources", as this language is widely
accepted by the international community.


                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     With regard to paragraph 1 of article 5, basic consideration should be
given to "equitable and reasonable" use in relation to harm.  If watercourse
States adhere to the principle of "equitable and reasonable" use, the danger
of causing "significant" harm to an international watercourse will thereby be
eliminated.  "Equitable and reasonable" use should, therefore, be the
overriding consideration and "significant" harm should be subordinated to it. 
Article 7, which imposes on States an obligation to "exercise due diligence",
provides sufficient protection from harm.

     Paragraph 2 of article 5, which imposes the obligation on watercourse
States to "participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner", should be
deleted, since the right to equitable participation is no more than a right of
cooperation, which is elaborated in article 8, dealing with cooperation.


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     It has been pointed out in the Government's general comments that the
aim of sustainable development is not adequately reflected in the "General
principles" of the draft articles.  Finland proposes that it be inserted under
part II, ideally in article 5 dealing with equitable and reasonable
utilization and participation or alternatively in article 6 dealing with
factors relevant to equitable and reasonable utilization.  The aim of
sustainable development would in any case have to be taken into consideration
in the search for balance between these factors.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     The relationship between article 5 on equitable and reasonable
utilization and participation and article 7 on the obligation not to cause
significant harm is problematic and does not strike the appropriate balance
between the rights and concerns of downstream and upstream States.  On first
reading (1991 draft articles) the Commission had taken the view that the right
of a State to utilize an international watercourse in an equitable and
reasonable manner was limited by the obligation not to cause "appreciable
harm" to other watercourse States.  The modifications introduced on second
reading (1994 draft articles) suggest that the equitable and reasonable
utilization of an international watercourse might still involve significant
harm to another watercourse State.  While the 1991 draft articles accorded
primacy to the no-harm rule, the present wording of article 7 apparently
raises the threshold of harm from "appreciable" to "significant", and
introduces a due diligence test and the right to compensation for lack of
proper due diligence by a State.  It acknowledges that in some circumstances a
use which causes significant harm can nevertheless be equitable.  This is an
unacceptable approach.  There should never be any circumstance where
significant harm to a downstream State can be reasonable and equitable and
therefore endorsed by international law.  Under general principles of
international law, as codified in various international instruments, States
have the sovereign right to exploit their resources pursuant to their own
environmental policies but this right is limited by the obligation to ensure
that activities within their jurisdiction or control do not cause damage to
the environment of other States.  This approach is reflected in customary
international law (principle 21, Stockholm Declaration; principle 2, Rio
Declaration).  Accordingly, as presently drafted, the relationship between
articles 5 and 7 is unacceptable and does not accurately reflect existing
customary international law.  In order to achieve the acceptable balance,
article 7 should reflect the wording of the 1991 draft articles or be
otherwise appropriately amended.

     Specifically with regard to the principle of equitable and reasonable
utilization (article 5), the methods of implementing the principle will need
to be clarified, in particular with references to the terms "equal access" and
"non-discrimination" and the use of joint commissions as a mechanism to assist
with the control of flow allocation.  Further, the concept of optimal
utilization should be explained by reference to the principle of sustainable
development.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 5 should be amended as follows:

     "1. Watercourse States shall in their respective territories utilize an
     international watercourse in an equitable and reasonable manner.  In
     particular, an international watercourse shall be used and developed by
     watercourse States with a view to attaining optimal utilization thereof
     and benefits therefrom conditioned by the protection of the watercourse
     in respect to the principle of sustainable development."

     The reasons for the proposed amendment to article 5 (1) are as follows:

     The original text lent itself to an interpretation that was far too
"economicist" or "utilitarian" and revealed an insufficient regard for
environmental, ecological and ecosystemic considerations.

     Therefore, it was possible to envision situations that, although
equitable and reasonable, would not be compatible with an ecosystemic outlook.

This outlook increasingly assumes the role of a structural principle of
international law of the environment and is reflected, among others, in the
principle of sustainable and durable development.

     The original text reflects a particular moment in this evolution, of
which the expression "optimal utilization", with no further qualifiers, is a
good example.  On the other hand, the text now proposed by Portugal allows for
a balance of various relevant criteria (this balance will become clearer in
the comments to article 6) and unifies them under a general principle, that of
sustainable and durable development.  This principle gives meaning to the
whole Convention, as proposed by Portugal.


                                     SPAIN

                                                          [Original:  Spanish]

                                                          [30 May 1996]       

     In the view of the Spanish Government, the basic principle with regard
to the non-navigational uses of international watercourses is the one laid
down in article 5 of the draft articles, concerning the equitable and
reasonable utilization of international watercourses.  This is a principle
which, unquestionably, already has the force of a customary norm of general
scope.  And it is precisely within the framework of that principle that the
obligation not to cause significant harm to which article 7 of the draft
articles refers, should be viewed.  Consequently, it is the principle of
equitable and reasonable utilization and not that of the prohibition against
causing significant harm which should be retained in order to justify any new
activity relating to the watercourse.


                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     The most fundamental principle of the draft articles is enshrined in
article 5.  The principle of equitable and reasonable utilization set forth in
the first sentence of the first paragraph is already a widely accepted notion
at the international level.  It is necessary that equitable and reasonable
utilization should be understood and interpreted in the light of the
fundamental principle of the sovereign rights of States over their territory. 
It should also be applied by taking fully into account all the particularities
of the watercourses, including the distinction of whether they are
transboundary by nature or form a boundary between States.

     While the second sentence of article 5, paragraph 1, mentions the
necessity of attaining "optimal" utilization, it appears to link this concept
solely with the adequate "protection" of the watercourse.  The Turkish
Government naturally agrees with the aim of protecting a watercourse. 
However, it believes that the notion of "optimal utilization" should not be
restricted to protection only but should be seen also as comprising the
concept of "efficient use".  In other words, the principle of "optimal
utilization" should aim both at protecting the watercourse and at optimizing
the interests of riparian States in a way which avoids water waste. 
Therefore, the second sentence of the first paragraph of article 5 should be
understood as including both these aims.

     The second sentence of paragraph 2 of article 5 envisages that the
watercourse States are bound to cooperate in its protection and development. 
It also foresees that the modalities of this cooperation will be stipulated in
other articles of the draft.  The Turkish Government believes that it would be
more suitable for these modalities to be laid down between the watercourse
States in specific agreements or arrangements.  Therefore, the words "as
provided for in the present articles" at the end of paragraph 2 should be
deleted and the following sentence should be added instead:  "The nature and
details of such cooperation shall be laid down in watercourse agreements
between the concerned States."


                           UNITED STATES OF AMERICA

                                                          [Original:  English]

                                                          [28 June 1996]      

     The keystone of the articles is article 5.  Article 5 recognizes that
States within their own territories are to have a reasonable and equitable
share of the uses and benefits of an international watercourse.  At the same
time, States must not deprive other watercourse States of their right to
equitable utilization.

     The second paragraph of article 5 stresses the importance of cooperation
between States through participation in measures, works and activities aimed
at attaining optimal utilization consistent with sustaining the availability
of the resource through "the duty to cooperate in the protection and
development" of the watercourse.  The aim of attaining optimal utilization is
fully responsive to the growing need for water; the duty to protect is
consistent with the objective that benefits be sustainable.

     Most of the remainder of the articles can be seen as the road-map for
States to attain and maintain the balance struck in article 5.

     In the context of article 5, we will need to consider not only the
protection of watercourses, but also the protection of associated ecosystems,
including the coastal ecosystems into which most watercourses flow.  The
United States supports the emphasis given by the International Law Commission
to the protection and preservation of ecosystems affected by the utilization
of inter-State waters.  The quality and availability of water resources is
also vital to the existence and preservation of species and habitats.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     The principle of equitable and reasonable utilization laid down in
article 5 has an axiomatic element:  it declares that, while the right of a
State to utilize the waters of an international watercourse in its own
territory is an attribute of sovereignty, the inherent limit on that right,
which must be spelled out in watercourse agreements, is the equal and
concomitant right of other watercourse States to utilize and benefit from that
watercourse.

     A stipulation to that effect should be included in the draft articles.

Article 6.  Factors relevant to equitable and reasonable utilization

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     The following changes should be made to article 6:

     In paragraph 1 (c), the word "population" should be in the plural, i.e.,
"the populations dependent on the watercourse ...".

     In paragraph 1 (f), "and the profit which the non-exhaustive use by a
State of the respective watercourse represents" should be added, so that the
text would read as follows:

     "(f)  conservation, protection, development and economy of use of the
     water resources of the watercourse, the costs of measures taken to that
     effect and the profit which the non-exhaustive use by a State of the
     respective watercourse represents".


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     The principle of equitable utilization and optimal use are open-ended. 
Balancing them requires a contextual assessment of what seems significant in
each situation.  Article 6 aims to give some indication of how such balancing
is to be undertaken in the form of a non-exhaustive list of "factors and
circumstances".  However, as presently drafted, the factors stand in no
particular hierarchical relationship to each other.  We do not know which of
the factors to prefer.  It is therefore doubtful if the list is really
helpful.  The article seems to rely on a spirit of cooperation and community
among States or their affected populations which is not necessarily present if
a problem arises.  To some extent this may be taken care of by providing for a
system of compulsory third-party settlement.  Finland proposes that article 33
be amended accordingly.  However, it is here proposed also to give indications
as to the relative value of the "factors and circumstances" to be balanced.

     First, it would be useful to insert in the chapeau of article 6 a
general statement to the effect that such balancing should be undertaken with
a view to attaining sustainable development of the watercourse as a whole.

     Secondly, a combination of the reference to "vital human needs" in
article 10 with the factors in article 6, and particularly subparagraph (c) of
paragraph 1, brings out what is already an implicit preference in the draft. 
This could be spelled out more clearly by indicating in the chapeau that in
balancing the factors "special regard should be given to the requirements of
vital human needs, and particularly of the dependency of the population on the
watercourse".

     Thirdly, it should be spelled out that any cost-effect calculation
should include also taking account of the needs and interests of future
generations.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     It is proposed to amend article 6 as follows:

     "1. Utilization of an international watercourse in an equitable and
     reasonable manner within the meaning of article 5 requires taking into
     account all relevant factors and circumstances in the framework of
     sustainable development, including:

     "...

         "(g)  the availability of alternatives, equally valuable, to a
     particular planned or existing use.

     "2. In the application of article 5 or paragraph 1 of this article,
     watercourse States concerned shall, when the need arises, enter into
     consultations and negotiations in a spirit of cooperation."

     The reasons for the proposed amendment to article 6 are as follows:

     Besides the comments expounded above for article 5, which are also valid
here, Portugal would like to stress that fundamental substantive results might
be obtained with this proposed amendment at a minimum cost for the listing and
the (re)definition of the factors in question.  These factors become
functional to an ultimate purpose within a framework in which they acquire new
meaning.

     In article 6 (1) (g), the criteria should be that of quality, taking
into account ecosystemic considerations, rather than "economicist" or
"utilitarian" ones.

     Article 6 (2) is also reinforced through the insertion of the obligation
to negotiate, thus providing the whole procedure with unquestionable
usefulness.

     As regards article 6 (1) (e), Portugal would like to stress the
difference between the uses of water for purposes that reduce the overall flow
of the stream and those that do not reduce it, such as production of
electricity, since the former are more harmful for downstream countries.


                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     Article 6, which gives a more precise definition of and substance to the
principle of equitable and reasonable utilization, is in principle acceptable
to the Turkish Government.  However, as touched upon in our observations
regarding article 5, paragraph 1, second sentence, the word "optimal" should
be added to its heading.  Also for precision's sake, the following matters
have to be added or clarified regarding this article:

     -   The word "pedology", covering also the structure and quality of
         soil, should be added to subparagraph (a) of paragraph 1.

     -   The contribution of water by riparian States to the watercourse
         should be specifically mentioned in an additional paragraph similar
         to subparagraph (b), paragraph (2), of article V of the 1966
         Helsinki Rules.

     -   Concerning the alternative opportunities mentioned in paragraph 1,
         subparagraph (g), a clarification should be made to the effect that
         these alternatives are only those which are available within the
         basin of the relevant watercourse as water resources.  An opposite
         approach would take into account all watercourses existing in a
         watercourse State, bringing with it the risk of enabling a lower
         riparian State to claim rights on other national (or transboundary)
         watercourses of the upper riparian States.

Article 7.  Obligation not to cause significant harm

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In paragraph 2 of article 7, the phrase "by a State in the use of a
watercourse" should be added, so that the text would read as follows:  "Where,
despite the exercise of due diligence by a State in the use of a watercourse,
significant harm is caused ..."


                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     Ethiopia supports the change of the term "appreciable" to "significant"
harm in article 7, paragraph 1, as it explains something that is not
negligible and yet does not necessarily rise to the level of "substantial"
harm.  In our view the word "appreciable" does not indicate the intended
threshold.  It does not designate the point where the line should be drawn for
a State before causing harm.  We believe the line is crossed when
"significant" harm is caused, i.e. exceeding the parameters of what was usual
in the relationship between the States that relied on the use of the waters
for their benefit.  Ethiopia therefore agrees with the present draft, which
replaces "appreciable" with "significant".

     Article 7, paragraph 1 as it stands imposes severe obligations on
watercourse States to exercise due diligence to utilize an international
watercourse in such a way as not to cause significant harm to other
watercourse States.

     Paragraph 2 of the same article further reinforces this obligation by
requiring the State causing harm to consult with the watercourse States
suffering the harm with a view to reaching agreement.

     In our view these two concurrent obligations on the State causing the
harm provide sufficient protection to the interests of the watercourse State
which significantly suffers from the harm.

     In the light of these considerations, additional subparagraphs (a) and
(b) in paragraph 2 will be unnecessary as they impose further onerous
obligations on upper riparian States.  In a situation where there are
competing interests for the waters of an international watercourse, to cast
the paragraph in its present form will give more preference to lower riparian
States.  As such, the paragraph has the effect of substantially reducing or
diminishing the right of equitable and reasonable use guaranteed under article
5 of the draft.  The paragraph therefore needs balance that would take care of
the interests of all watercourse States.

     The means to rectify the harm caused should be left to the affected
watercourse States to consult, negotiate and reach agreement between
themselves.  If agreement cannot be reached, the States concerned have to
resort to the dispute settlement mechanism available in the draft articles. 
It will be difficult to provide for all steps that the watercourse States have
to follow in the negotiation process.

     It is proposed therefore that subparagraphs (a) and (b) in paragraph 2
be deleted.


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     The present reference to "due diligence" confuses questions of liability
with the preventive duties that the article deals with.  It is sufficient to
use the simple formula that also appears in article 21 and to reword the
article in a more straightforward fashion:  "Watercourse States shall utilize
an international watercourse ..."  The question of the standard of liability -
whether fault or strict liability, what standard of care should be followed -
are issues that arise only at a subsequent stage and can only be determined
contextually by reference to the particularities of the situation.  In respect
of some uses, strict liability might then seem appropriate (particularly if it
is a question of hazardous activity) while in other ("normal") cases, fault
liability suffices.

     Secondly, the reference to "significance" is also inappropriate.  In the
normal law of neighbourly relations, the notion of a "threshold harm" is
written into the relevant principles themselves, the duty to suffer (non-
intentional) insignificant harm being a part of the general principles in this
field.  This was clearly enunciated by the arbitration tribunal in the classic
Lac Lanoux case, for instance.  It is true that some of the classic
environmental cases referred to the expression "significant harm" by way of an
obiter dictum.  However, those dicta do not shed light on where to draw the
line in a concrete case.

     An express mention of "significance" has only the adverse consequence of
legitimizing harm that seems "non-significant" in a fashion that is
politically undesirable.  However, if that seems necessary, a third paragraph
might be written into the article according to which the occurrence of
insignificant harm should not preclude the carrying out of beneficial uses.


                                   GUATEMALA

                                                          [Original:  Spanish]

                                                          [28 June 1996]      

     With regard to article 7, paragraph 2 (b), harm, and cases where
compensation is appropriate and what that should comprise, should be clearly
established.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     The relationship between article 5 on equitable and reasonable
utilization and participation and article 7 on the obligation not to cause
significant harm is problematic and does not strike the appropriate balance
between the rights and concerns of downstream and upstream States.  On first
reading (1991 draft articles) the Commission had taken the view that the right
of a State to utilize an international watercourse in an equitable and
reasonable manner was limited by the obligation not to cause "appreciable
harm" to other watercourse States.  The modifications introduced on second
reading (1994 draft articles) suggests that the equitable and reasonable
utilization of an international watercourse might still involve significant
harm to another watercourse State.  While the 1991 draft articles accorded
primacy to the no-harm rule, the present wording of article 7 apparently
raises the threshold of harm from "appreciable" to "significant" and
introduces a due diligence test and the right to compensation for lack of
proper due diligence by a State.  It acknowledges that in some circumstances a
use which causes significant harm can nevertheless be equitable.  This is an
unacceptable approach.  There should never be any circumstance where
significant harm to a downstream State can be reasonable and equitable and
therefore endorsed by international law.  Under general principles of
international law, as codified in various international instruments, States
have the sovereign right to exploit their resources pursuant to their own
environmental policies but this right is limited by the obligation to ensure
that activities within their jurisdiction or control do not cause damage to
the environment of other States.  This approach is reflected in customary
international law (principle 21, Stockholm Declaration; principle 2, Rio
Declaration).  Accordingly, as presently drafted, the relationship between
articles 5 and 7 is unacceptable and does not accurately reflect existing
customary international law.  In order to achieve the acceptable balance,
article 7 should reflect the wording of the 1991 draft articles or be
otherwise appropriately amended.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 7 should be amended as follows:

         "1.   Watercourse States shall exercise due diligence in order to
     prevent, control and reduce any significant harm caused to another
     watercourse State and to anticipate its causes, taking into account,
     therefore, when the need arises, an environmental impact assessment
     making use of the best available techniques and technologies.

         "2.   Where, despite the exercise of due diligence, significant harm
     is caused to another watercourse State, the State whose use causes the
     harm shall, in the absence of agreement of such use, consult and enter
     into negotiations with the State suffering such harm over:

         "(b)  The question of ad hoc adjustments to its utilization, designed
     to eliminate or mitigate any such harm caused and the question of
     compulsory compensation if circumstances so warrant".

     The reasons for the proposed amendment to article 7 are as follows:

     The present draft article 7 has been the object of criticism by
international scholars and international practitioners.  Summarizing their
arguments, one could remark that:

     -   The obligation of due diligence, besides being redundant, since it
         is always presupposed in relations among States, weakens the
         obligation of result, i.e. the lack of harm or of appreciable or
         significant harm, namely because its content is vague and difficult
         to specify;

     -   The raising of the threshold of tolerable damage, from "appreciable"
         to "significant" harm is undesirable;

     -   The disregard for the most modern principles of international law of
         the environment, namely those which refer to the ecosystem and
         should be guiding factors in this Convention, such as the principles
         of prevention, precaution and of sustainable development;

     -   The lack of consideration for the effects over time; and 

     -   The lack of reference to the corresponding procedural corollaries: 
         the need for an environmental impact assessment and to use the best
         technology available.

     Sensitive to these criticisms, Portugal presented an alternative version
of article 7 above, taking into consideration that it would not be timely to
substantially revise the original text of this article, and thus keeping the
expressions "due diligence" and "significant harm".


                                     SPAIN

                                                          [Original:  Spanish]

                                                          [30 May 1996]       

     The letter and spirit of article 7 address two different eventualities: 
first, that the watercourse State did not exercise due diligence in such a way
as not to cause significant harm to other watercourse States, and the harm is
actually caused; and, second, that due diligence was in fact exercised,
despite which significant harm was caused.  In the first case, the watercourse
State is automatically liable, even though the activity which caused the harm
may have met the criteria of equitable and reasonable utilization.  In the
second, the only obligation imposed on the State which causes the significant
harm is to initiate consultations with the affected watercourse State.  In
other words, the regulation provided in article 7 is satisfactory neither to
the State planning a new activity (since it will be held liable for any harm
caused even though the activity may constitute equitable and reasonable
utilization) nor to the State suffering harm from this activity (which is
entitled only to consultations if the first State has exercised due
diligence).

     Consequently, in the view of the Spanish Government, article 7 should
include a provision that the prohibition from causing significant harm is
subordinate to the right to equitable and reasonable utilization provided for
in article 5.  An alternative solution would be to state expressly that the
regime provided for in article 7 would apply only where significant harm is
caused to the environment, in which case the article should be placed in part
IV of the draft articles ("Protection, preservation and management").


                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     Article 7 gives rise to many problems.  First of all, exercising "due
diligence" for the purpose of not causing "significant harm" conflicts with
the right of equitable and reasonable utilization in article 5 because, if a
right is being used, this use should not be restricted if it does not cause
significant harm to the other parties.  In other words, if a State is making
use of a watercourse in conformity with the principle of equitable and
reasonable utilization, we believe that the use of this right should not be
limited with a second criterion.  The rule of equitable and reasonable
utilization has been defined in articles 5 and 6, and if the utilization is in
conformity with those articles, equality of rights should be regarded as
having been achieved for the concerned States.  Introducing other restrictive
elements produces the result that the right of utilization by States (in
practice the upstream States) is limited twice over.  One way to overcome this
contradiction is to omit article 7 completely so that the evaluation of the
right of utilization becomes solely dependent upon the criterion of equitable
and reasonable utilization as foreseen in articles 5 and 6.  Another way would
be if the obligation not to cause "significant harm" by exercising "due
diligence" were considered essential as a second criterion to explicitly give
priority to the principle of equitable and reasonable utilization in case of a
conflict between these two criteria.  However, the Turkish Government prefers
the first option, i.e. omitting article 7, so that the principle of equitable
and reasonable utilization which ensures by itself the equality of rights
among watercourse States is retained as a single criterion.


                           UNITED STATES OF AMERICA

                                                          [Original:  English]

                                                          [28 June 1996]      

     The International Law Commission has taken into account the many
competing interests of watercourse States as expressed in the comments of
States on prior drafts of the articles.  The balance struck between equitable
and reasonable utilization and participation (article 5) and the obligation
not to cause significant harm (article 7) is a good one, and worthy of
widespread endorsement and application.  The issue of compensation, touched on
in article 7, is a very complex one which will require careful consideration
in the Working Group's deliberations.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     Article 7, which provides that "Watercourse States shall exercise due
diligence to utilize an international watercourse in such a way as not to
cause significant harm to other watercourse States", is based on the principle
of "equitable" use.  If there is no agreement among the watercourse States
concerned, then this rule must be based on respect for the principle of the
sovereign equality of States.

     As we have seen, the above-mentioned factors determine the relationship
between the principle of reasonable and equitable utilization and the rule
against causing harm.  At first glance, it might appear that what is involved
is twin norms that the parties concerned are free to select as necessary. 
However, it would be much more effective to include in the draft articles not
only an obligation relating to conduct, but also a binding obligation for
watercourse States to produce a specific result.

     It is therefore proposed that an obligation to provide compensation or
make reparation for harm caused through the failure of either State to act
with due diligence be included in article 7.


                                  SWITZERLAND

                                                           [Original:  French]

                                                           [2 April 1996]     

     In its earlier observations and in the statements by its representatives
to the Sixth Committee of the General Assembly, the Swiss Government has
explained why it would have difficulty in endorsing a solution whereby the
rule which prohibits causing significant harm to a watercourse State would
take precedence over the principle of equitable and reasonable utilization: 
such a solution would mean that any existing use would prevail over new
activities, since in most cases the latter would be detrimental to the status
quo.  In other words, the principle of equitable and reasonable utilization
would no longer be independent in scope, because the proposed regulation would
for the most part preserve existing situations.  The Swiss Government
considers that the principle of equitable and reasonable utilization should
remain the cardinal principle and that the rule which prohibits causing harm
should be applied only in situations where maintaining the status quo
constitutes an equitable and reasonable allocation of uses.  On the other
hand, if the new activity is justified on the basis of the principle of
equitable and reasonable utilization, it should be allowed.

     In the second version of the draft articles, the Commission attempted to
take these considerations into account.  Article 7, paragraph 1, of the draft
now calls upon watercourse States to "exercise due diligence" to utilize the
watercourse in such a way as not to cause significant harm to other
watercourse States.  Article 7, paragraph 2, specifies that where, despite the
exercise of due diligence, such harm is caused, the State which causes it
shall consult with the State suffering such harm in order to determine the
extent to which such use is equitable and reasonable and to identify the
adjustments to be made to its utilization in order to eliminate or mitigate
the harm and, "where appropriate", the compensation to be paid.

     The new draft of article 7 is complex and difficult to grasp.  It makes
a distinction between cases where the harm could have been avoided and where
the offending State is of course responsible for the harm, and cases where the
State concerned has taken all necessary measures to avoid it and will have to
consult with the injured State.  This solution, however, does not affect the
prohibition on causing significant harm; it simply creates a distinction
between the consequences of non-observance of that prohibition according to
whether or not the State causing the harm exercised due diligence.  In the
first case, that State answers fully for the harm suffered, whether or not it
resulted from equitable and reasonable utilization; the prohibition on causing
significant harm thus continues to take precedence over the principle of
equitable and reasonable utilization.  In other words, whenever a new activity
deliberately undertaken or permitted by a watercourse State causes significant
harm to other watercourse States, the obligation to make reparation will
result.  Only if the harm is not attributable to any negligence on the part of
the State which caused it is the latter's obligation limited to a duty to
consult; this, we may add, is hardly satisfactory for the injured State, which
will gain little or nothing from this solution.

     It follows that the new rules proposed in article 7 are unsatisfactory
both for the State which is planning to undertake a new activity and for the
States that will suffer from it.  At best, it might apply in cases where the
significant harm is caused to the environment.  Consequently, the scope of the
new article 7 should be restricted to that particular area and the provision
itself could be incorporated into part IV of the draft articles ("Protection,
preservation and management").

Article 8.  General obligation to cooperate

                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     The general obligation to cooperate under article 8 aims to attain
optimal utilization and adequate protection of an international watercourse. 
This task of reconciliation between two opposing ends sums up the core
question in international environmental law.  Finland realizes the difficulty
in solving this dilemma by means of drafting.  It is, however, a general
shortcoming that in part II of the draft articles the considerations of
environmental protection are not reflected in an equal manner with those of
the optimal utilization.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     In general, article 8 is acceptable, with two qualifications:

     First, as to its place in the draft articles, this article could be the
first one in part II on "General principles".  This suggestion, in our view,
could be supported, among others, by the wording of paragraph 2 of article 6,
which says:

         "In the application of article 5 or paragraph 1 of this article,
     watercourse States concerned shall, when the need arises, enter into
     consultations in a spirit of cooperation" (emphasis added).

     Secondly, as to the wording of this article, it is suggested that the
principle of good faith be included, concurrent with the principles of
sovereign equality, territorial integrity and mutual benefit.  Hence the first
two lines would read as follows:  "Watercourse States shall cooperate on the
basis of sovereign equality, territorial integrity, mutual benefit and in good
faith in order to attain ...".  We submit that the inclusion of this principle
is very important in itself.  It should also be recalled that the good faith
principle is also referred to in other draft articles, for example in
paragraph 3 of article 3, paragraph 2 of article 17 and, implicitly, also in
article 18.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 8 should be amended as follows:

         "Watercourse States shall cooperate on the basis of sovereign
     equality, territorial integrity and mutual benefit, good faith and good-
     neighbourliness in order to attain optimal utilization and adequate
     protection of an international watercourse."

     The reasons for the proposed amendment to article 8 are as follows:

     The objective for the proposed amendment is to broaden the list of
applicable principles, stressing the importance of the principle of
cooperation that should underline the relationship between watercourse States.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     This is one of the most important provisions in the draft; it should
play a prominent role in order to strike a balance between the rights and
obligations of States using international watercourses.  For this reason, the
Government of Venezuela believes that it should be maintained as drafted.

Article 9.  Regular exchange of data and information

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In paragraph 1 of article 9, the word "geomorphological" should be
added, so that the text would read as follows:

     "1. Pursuant to article 8, watercourse States shall on a regular basis
     exchange readily available data and information on the condition of the
     watercourse, in particular that of a hydrological, meteorological,
     geomorphological, hydrogeological ...".

     In paragraph 2, last line, of the Spanish version, the word "reunio'n"
should be replaced by "recoleccio'n", so that the text would read as follows:


     "... pero podra' exiqir que el Estado solicitante paque los costos
     razonables de la recoleccio'n y, en su caso, elaboracio'n de esos datos
     e informacio'n".


                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     Article 9, paragraph 2, stipulates that provision of data not readily
available may be conditioned upon payment.  However, as there should be no
reason to make costs of data collection as sunk costs, provision of any kind
of data including those readily available should be compensated by payment.


                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     Finland proposes that water quality be inserted in the list of items of
information on the condition of the watercourse to be provided by watercourse
States on a regular basis.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     Draft article 9 addresses an important question, namely the "exchange of
data and information" among watercourse States with a view to the protection
and optimal utilization of the watercourse.  However, paragraph 2 of the
article weakens the obligation imposed on a State by including the phrase
"shall employ its best efforts".

     It would undoubtedly be more appropriate to specify the obligation of
States to provide the necessary information where it is readily available. 
The same applies to paragraph 3 of the article.


Article 10.  Relationship between different kinds of uses

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     Paragraph 1 of article 10, which reads "... no use of an international
watercourse enjoys inherent priority over other uses", clearly violates the
basic human right to survival.  It should therefore be reformulated as
follows:

     "... only the use of an international watercourse to meet human needs
     has priority over other uses, including planned uses in the State in
     which the watercourse originates, if such uses are not for the purpose
     of meeting human needs".


                          PART III.  PLANNED MEASURES

General comments and observations on part III

                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     At the heart of this section we find articles 11 and 12 and here we are
compelled to single out the special importance of article 12 on the
"Notification concerning planned measures with possible adverse effects".


                           UNITED STATES OF AMERICA

                                                          [Original:  English]

                                                          [28 June 1996]      

     The notice requirements contained in part III of the draft with their
provision for consultation and negotiation "with a view to arriving at an
equitable resolution of the situation" are a further noteworthy component of
the draft and likely to facilitate cooperation and dispute avoidance or
management.


                                  SWITZERLAND

                                                           [Original:  French]

                                                           [2 April 1996]     

     Part III of the draft articles ("Planned measures") sets out the
procedure to be followed when a watercourse State or persons under its
jurisdiction plan to undertake a new activity or to expand an existing
activity "which may have a significant adverse effect upon other watercourse
States".  While the Swiss Government subscribes to the object of this
procedure, which is to prevent a watercourse State from engaging in activities
which do not come under the heading of equitable and reasonable utilization,
it wonders whether the proposed procedure will enable that object to be
achieved.  First of all, it has some doubts as to whether the risk of
"significant harm" should in fact trigger this procedure.  For the reasons
given above in the examination of the relationship between articles 5 and 7 of
the draft, the Swiss Government believes that the procedure should be
activated when it is feared that the planned activity may not constitute
equitable and reasonable utilization.  Secondly, the refusal of a watercourse
State to give the required notification or to engage in consultations should
have legal consequences for that State.  Thirdly, there should be some
provision ultimately for the final, binding settlement of any disputes that
might arise as to the legal qualification of the planned activity (is it
likely to contravene the principle of equitable and reasonable utilization?)
or as a result of a breakdown of consultations between States.  Article 33
("Settlement of disputes") of the draft articles prepared by the Commission
will not always permit such an outcome, however, since the only course that
the States concerned are obliged to follow is that of fact-finding.  The
article should be expanded to provide for compulsory arbitration or judicial
settlement in cases where recourse to diplomatic means of settlement has
failed to produce a solution.  Indeed, international practice has shown the
dangers of allowing disputes to go on indefinitely, particularly when they
concern the utilization of watercourses which are precious, vital resources
for the populations concerned.

Article 11.  Information concerning planned measures

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     The phrase "as appropriate" should be added, so that the text would read
as follows:  "Watercourse States shall, as appropriate, exchange information
and ...".


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 11 should be amended as follows:

         "Watercourse States shall exchange information, consult each other
     and, if necessary, negotiate on the possible effects of planned measures
     on the condition of an international watercourse."

     The reasons for the proposed amendment are the same as those given for
article 7.


                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     As pointed out in section II.A above on general comments and
observations, although the draft articles are envisaged as a framework
agreement (convention), detailed procedural arrangements are foreseen in part
III.  This approach goes far beyond the original purpose of the draft
articles.  Since each international watercourse possesses different and
specific characteristics, it is also in conflict with the necessity of
developing mechanisms of cooperation appropriate to these characteristics. 
Consequently, the dispositions of part III should be reduced to a minimum
necessary to set forth certain general principles regarding planned measures. 
In the light of the above, it is considered that the provision of exchange of
information and consultations only in the case of water utilization liable to
cause significant harm would be sufficient in respect of satisfying the
criteria of equitable and reasonable utilization of international
watercourses.  Beyond this general rule, the most suitable way for watercourse
States to resolve their problems is to devise appropriate mechanisms, through
bilateral or regional agreements, which take into account the specific
characteristics of the watercourses and of the region concerned.

Article 12.  Notification concerning planned measures with possible adverse
             effects

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In article 12, the phrase "which it believes may have a significant
adverse effect" should be included, so that the text of the first sentence
would read as follows:

         "Before a watercourse State implements or permits the implementation
     of planned measures which it believes may have a significant adverse
     effect upon other watercourse States, it shall provide those States with
     timely notification thereof."


                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     This article, in combination with articles 13 to 18, which set out
procedures for notification, does not do justice to States that have not
developed their water resources vis-a`-vis those that have already done so. 
If a watercourse State has already developed its part of a watercourse, it can
halt the other States that have not yet developed theirs by the application of
the provisions of this article and articles 13 through 18.  Therefore, a
method of differential treatment should be developed to separate obligations
of notification for States that have already developed their part of the
watercourse, as against those which have not yet done so.

     Notification is usually considered an obligation of an upstream State
which is in a position to decrease the flow of water downstream and to cause
harm to the water.

     The fact that a downstream State can cause harm by over-utilization of a
watercourse should not be neglected.  Article 12 should therefore make clear
that a downstream State has an obligation to notify as well.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     As presently drafted, article 12 on notification concerning planned
measures with possible adverse effects requires notification of a planned
measure only in circumstances where the watercourse State wishing to implement
planned measures deems that such measures may have significant adverse effects
upon other watercourse States.  The requirement to notify planned measures
should not be limited by the criterion of "significant adverse effects", which
leaves it to the notifying State to decide what amounts to significant adverse
effects.  While in its commentary to the draft articles the Commission states
that the threshold established by this standard is intended to be lower than
that of "significant harm" under article 7, the requirement to notify and
consult should extend to all planned measures affecting international
watercourses irrespective of the threshold of possible harm.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 12 should be amended as follows:

         "Before a watercourse State implements or permits the implementation
     of planned measures which may have a significant adverse effect upon
     other watercourse States, it shall provide those States with timely
     notification thereof.  Such notification shall be accompanied by
     available technical data and information, namely the results of an
     environmental impact assessment, in order to enable the notified States
     to evaluate the possible effects of the planned measures."

     The reasons for the proposed amendment to article 12 are as follows:

     The objective is to stress the conditions and the consequences which are
inherent to the substantive principles of the original text, by referring to
one of their most well-established corollaries.  In particular, the goal is to
make the relations between watercourse States as objective and as useful as
possible.

Article 14.  Obligations of the notifying State during the period for reply

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     The phrase "and shall not implement or permit the implementation of the
planned measures without the consent of the notified States" in article 14
should be deleted, since the purpose of the article is to establish the
obligation to notify.  It is not clear why the execution of a project should
be conditioned upon the consent of other States if there is an initial
presumption of good faith, as recognized in Article 2 of the Charter of the
United Nations.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     As presently drafted, article 14, which requires the notifying State to
refrain from implementing the planned measures only during the "reply to
notification period" leaving the notifying State free to do so after the said
period expires and irrespective of whether agreement has been reached between
all concerned watercourse States, is unacceptable.  Planned measures affecting
international watercourses should only be allowed to proceed with the consent
of all affected watercourse States, such consent not to be unreasonably
withheld.  In the event that consent is unreasonably withheld, it may be
possible to proceed, but in any event subject to the obligation not to cause
transboundary harm.

Article 16.  Absence of reply to notification

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In paragraph 2 of article 16, the phrase "where appropriate" should be
inserted at the beginning of the sentence, so that the text would read: 
"Where appropriate, any claim to compensation by a notified State which has
failed to reply may be offset ...".

Article 17.  Consultations and negotiations concerning planned measures

                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 17, paragraph 3, should be amended as follows:

         "3.   During the course of the consultations and negotiations, the
     notifying State shall, if so requested by the notified State at the time
     it makes the communication, refrain from implementing or permitting the
     implementation of the planned measures until the end of the consultation
     and negotiations for a period not exceeding the procedure for fact-
     finding, mediation or conciliation, as provided for in article 33 or, in
     the case of non-use of the above-mentioned procedure, for a period not
     exceeding six months".

     The reasons for the proposed amendment to article 17 (3) are as follows:

     This proposal has a double goal:  it allows for the deferral of the
implementation of the planned measures until the end of the diplomatic and
political procedure of inquiry, mediation or conciliation, while preserving
the possibility of a fixed deadline in situations where the States involved
showed good faith and a real commitment to cooperation.  This deadline is
believed to foster discipline in the diplomatic efforts and encourage their
timely conclusion.

     The need for this amendment stems, in Portugal's view, from the fact
that the original text does not take sufficiently into consideration the real
possibility of a dispute concerning planned measures or consultative or
negotiating behaviour that are in good faith.

     Furthermore, it seems that, if so much attention is given in article 33
to a political-diplomatic mechanism for the solution of a dispute by appealing
to a third party, one cannot see how the immediate usefulness of such a
decision should not be sought as well.

     On the other hand, it was thought that it would be excessive to apply
the proposed regime to situations where judicial powers were involved, mostly
because the possibility occurs then for the request of provisional measures.

Article 18.  Procedures in the absence of notification

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     In paragraph 1 of article 18 of the Spanish version, the word "sensible"
should be replaced by "significativo", so that the text would read as follows:

     "1. Todo Estado del curso de agua que tenga razones graves para creer
     que otro Estado del curso de agua proyecta tomar medidas que pueden
     causarle un efecto perjudicial significativo podra' pedir ...".

     Paragraph 3 should be deleted for the purposes of consistency with the
approach adopted in article 17, paragraph 3.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Paragraph 3 of article 18 should be amended to read as follows:

         "3.   During the course of the consultations and negotiations, the
     State planning the measures shall, if so requested by the other State at
     the time it requests the initiation of consultations and negotiations,
     refrain from implementing or permitting the implementation of those
     measures until the end of the consultations and negotiations, for a
     period not exceeding the procedure for fact-finding, mediation or
     conciliation, as provided for in article 33 or, in case of non-use of
     the above-mentioned procedure, for a period not exceeding six months".

     The reasons for the proposed amendment to article 18, paragraph 3, are
the same as for article 17, paragraph 3.

Article 19.  Urgent implementation of planned measures

                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     The reference in article 19 to the immediate implementation of planned
measures subject to a formal declaration of the urgency of the measures in
order to protect "public health, public safety or other equally important
interests" without the incorporation of specific criteria for determining
public health, public safety and other equally important interests, is
unacceptable.  Even with the inclusion of specified criteria, express
reference should be made to the duty to notify and reach agreement on such
planned measures.

     Moreover, the obligation on every State to carry out an environmental
impact assessment prior to the initiation of any planned measures affecting
international watercourses should be expressly stated.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Paragraph 1 of article 19 should be amended to read as follows:

         "1.   In the event that the implementation of planned measures is of
     the utmost urgency in order to protect public health, public safety or
     other exceptionally important interests, namely the requirements of
     vital human needs, the State planning the measures may, subject to
     articles 5 and 7, immediately proceed to implementation, notwithstanding
     the provisions of article 14 and paragraph 3 of article 17."

     The reasons for the proposed amendment to article 19 (1) are as follows:

     The proposed amendment stresses the exceptional character of the
arguments for the immediate execution of planned measures and takes into
account the contents of article 10, paragraph 2.


               PART IV.  PROTECTION, PRESERVATION AND MANAGEMENT

Article 20.  Protection and preservation of ecosystems

                                   ETHIOPIA

                                                          [Original:  English]

                                                          [28 June 1996]      

     Article 20 provides for protection and preservation of ecosystems of
international watercourses.  Preservation could mean that the existing
ecosystem, whether good or bad, should be maintained.  It is possible that the
existing situation may have to be reversed for the better even though the
status quo may be favourable to some watercourse States.  Where a watercourse
has deteriorated, the watercourse States should regenerate it by individual or
joint efforts.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     Article 20 introduces the concept of the protection and preservation of
ecosystems of international watercourses.  The phrase "ecosystems of
international watercourses" will need to be defined in article 2 on use of
terms.  In its commentary, the Commission defines the term "ecosystem"
generally as "an ecological unit consisting of living and non-living
components that are interdependent and function as a community".  A suitable
comprehensive definition of the phrase "ecosystem of international
watercourse" will need to be established.  A reference should also be made to
the preservation and protection of the freshwater systems against any kind of
misuse of the water resources.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 20 should be amended to read as follows:  "Watercourse States
shall, individually and jointly, protect and preserve the ecosystems of
international watercourses."

     The reasons for the proposed amendment to article 20 are as follows:

         Once more, the aim is to stress the importance of an integrated
     approach to the watercourse as a whole.

                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     These provisions take into consideration the norms and principles of
customary international law that have arisen in the field of environmental
protection and anti-pollution measures.

     The Government of Venezuela is of the view that the terms utilized are
appropriate, and therefore that the term "ecosystems" used in article 20
should be maintained.

Article 21.  Prevention, reduction and control of pollution

                                    FINLAND

                                                          [Original:  English]

                                                          [17 June 1996]      

     Finland notes that in paragraph 2 of Article 21 a threshold between
unlawful injury and tolerable injury is determined by using the term
"significant harm".  The same threshold appears also in articles 3, 4 and 7. 
The reference to "significant harm" has been addressed already under article
7.  Furthermore, Finland is of the view that instead of legitimizing the
causing of pollution by States up to the limit of significant harm, the
purpose of the draft articles should be to prevent pollution and other harm
from occurring.

     The crux of the matter lies in the distinction between environmental
protection and compensation for damage.  With regard to responsibility and
liability, it is generally considered that a victimized State should tolerate
at least insignificant harm.  However, from the point of view of environmental
protection one should endeavour to prevent pollution and harm.  Thus there is
no need to use the term "significant".  For example, it can be noted that the
United Nations Convention on the Law of the Sea refers to the prevention of
marine pollution without any restriction on the basis of the term "significant
harm".

     Therefore, Finland suggests that articles 3, 4, 7 and 21 should refer
merely to harm instead of significant harm.  Such provisions would be based on
environmental protection and would not prejudge any issues of responsibility.


                                    HUNGARY

                                                          [Original:  English]

                                                          [25 June 1996]      

     The principle of sustainable development endorsed by the international
community at the United Nations Conference on Environment and Development,
held at Rio de Janeiro in June 1992, is not adequately reflected in the 1994
draft articles.  Chapter 18 of Agenda 21, for example, deals with the
protection of the quality and supply of freshwater resources and refers to
integrated approaches in the management and use of international watercourses,
and the obligation to carry out an environmental impact assessment.  It may be
appropriate to include reference to the precautionary principle in the context
of uncertainty surrounding the potential harm to an international watercourse
as a result of a planned measure.  Article 21 of the 1994 draft articles
should incorporate the polluter-pays principle by virtue of which costs of
pollution prevention, reduction and control measures shall be borne by the
polluter.  Article 21 should also make express reference to the precautionary
principle.

     In accordance with recent developments in international environmental
law, the concepts of "best available technology" and "best environmental
practices" introduced and defined by the 1992 Helsinki Convention on the
Protection and Use of Transboundary Watercourses and Lakes should be
incorporated with respect to the specific obligations incumbent on riparian
States.


                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 21, paragraph 2, should be amended to read as follows:

     "2. Watercourse States shall, individually and jointly, prevent, reduce,
     control pollution and attack the causes of pollution of an international
     watercourse that may cause significant harm to other watercourse States,
     especially to their environment, including harm to human health or
     safety, to the use of the waters for any beneficial purpose or to the
     living resources of the watercourse.  Watercourse States shall take
     steps to harmonize their policies in this connection."

     The reasons for the proposed amendment to article 21, paragraph 2, are
as follows:

     The proposed amendment encompasses the principles of prevention and
precaution and is based on the following texts:

     -   Preamble to the Convention on Biological Diversity of 1992;

     -   Article 3 (3) of the United Nations Framework Convention on Climatic
         Change of 1992;

     -   Principle 15 of the Rio Declaration;

     -   Article 7 of the ECE Bergen Declaration of 16 May 1990 on
         Sustainable Development.


                           UNITED STATES OF AMERICA

                                                          [Original:  English]

                                                          [28 June 1996]      

     With respect to article 21, the commentary thoughtfully explains the
idea of preventing, reducing or controlling pollution of a watercourse that
"may" cause significant harm as amounting to a "due diligence" standard. 
Under article 21, States would need to take appropriate steps to prevent
significant harm from occurring.  We consider that this provision is
consistent with the intent of pollution control laws of the United States to
prevent harm to human health and the environment.


                                   VENEZUELA

                                                          [Original:  Spanish]

                                                          [25 June 1996]      

     The obligation envisaged in article 21 to prevent, reduce and control
pollution should be maintained, and the obligation to provide compensation or
make reparation for harm caused to a watercourse State as a result of
polluting activities in another watercourse should be established.

Article 23.  Protection and preservation of the marine environment

                                   PORTUGAL

                                                          [Original:  English]

                                                          [26 June 1996]      

     Article 23 should be amended to read as follows:

         "Watercourse States shall, individually and jointly, take all
     measures with respect to an international watercourse that are necessary
     to protect and preserve the marine environment, including estuaries,
     taking into account generally accepted international rules and
     standards."

The reasons for the proposed amendment to article 23 are the same as those for
articles 20 and 21.

                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     Article 23 should be omitted since it deals mainly with the subject of
the marine environment, which falls outside the scope of the draft articles.

Article 24.  Management

                                   COLOMBIA

                                                          [Original:  Spanish]

                                                          [10 July 1996]      

     The following should be added at the end of paragraph 1 of article 24:

     "... for which the watercourse States shall establish an operating fund,
     whose financing sources shall be based on equitable and reasonable
     criteria as defined by the watercourse States".


                                   GUATEMALA

                                                          [Original:  Spanish]

                                                          [28 June 1996]      

     In article 24, paragraph 1, there is a need to specify the composition
of the "joint" body referred to therein.  Its nature must be clarified, as
well as whether it has any relationship with the Fact-Finding Commission
provided for under article 33.


                                    TURKEY

                                                          [Original:  English]

                                                          [5 July 1996]       

     In paragraph 1 of article 24, the word "shall" should be replaced by
"may" and the phrase "at the request of any of them" should be deleted, since
a cooperation mechanism of this kind can only be achieved if the States
concerned have the will to do so and should not be imposed ex ante in a
framework agreement.


                                   VENEZUELA

                                                            [Original: 
Spanish]

                                                            [25 June 1996]

     The Government of Venezuela believes that this article, which refers to
a management mechanism, is an essential provision of the draft articles, and
should therefore be maintained and further clarified.


                                  SWITZERLAND

                                                             [Original: 
French]

                                                             [2 April 1996]

     Article 24 is the only truly institutional provision in the draft
articles.  The first paragraph requires watercourse States, at the request of
any of them, to enter into consultations concerning the management of the
watercourse and, more particularly, the establishment of a joint management
mechanism.  Paragraph 2 specifies that the term "management" refers, in
particular, to planning the sustainable development of the watercourse and the
implementation of any plans adopted, and otherwise promoting the utilization,
protection and control of the watercourse.

     The Swiss Government considers that this provision says either too much
or too little.  It would be acceptable if it simply stipulate the obligation
to enter into consultations concerning the management of the watercourse and,
in particular, the establishment of a joint body.  It would also be acceptable
if paragraph 2, instead of remaining vague about the functions of the joint
management mechanism, were to list them in detail (data collection, project
design and implementation, approval of activities planned by individual
States, exercise of regulatory power, peaceful settlement of disputes and
exploration of potential sources of financing, to name but a few).  After all,
this paragraph should provide guidance to States in determining the content of
their watercourse agreements.  The Swiss Government therefore considers that
paragraph 2 of article 24 should be either deleted or clarified.

Article 25.  Regulation

                                    TURKEY

                                                            [Original: 
English]

                                                            [5 July 1996]

     The matters dealt with in articles 25 deal with issues which should
rather be considered within the concept of "management" dealt with in
article 24.  The article should therefore be omitted from the draft.


                                   VENEZUELA

                                                            [Original: 
Spanish]

                                                            [25 June 1996]

     The word "equitable" as used in paragraph 2 of article 25 is deemed to
be ambiguous, and it is therefore proposed that other terms be added to
clarify the undertaking provided for in the paragraph, such as the word
"reasonable" or any other term that may be considered appropriate, in keeping
with the obligations assumed by each watercourse State.


             PART V.  HARMFUL CONDITIONS AND EMERGENCY SITUATIONS

Article 27.  Prevention and mitigation of harmful conditions

                                   COLOMBIA

                                                            [Original: 
Spanish]

                                                            [10 July 1996]

     The following should be included to article 27:  "to the extent possible
and consistent with the level of economic development of the States
concerned".  The text would read as follows:

         "Watercourse States shall, individually or jointly, to the extent
     possible and consistent with the level of economic development of the
     States concerned, take all appropriate measures to prevent or mitigate
     conditions ..."


                                    TURKEY

                                                            [Original: 
English]

                                                            [5 July 1996]

     Since article 5 already foresees that the utilization of an
international watercourse should be carried out in an equitable and reasonable
manner, in case this criteria is fulfilled, additional restrictive criteria
for utilization should not be introduced according to the reasons already
given above under article 7.

Article 28.  Emergency situations

                                    HUNGARY

                                                            [Original: 
English]

                                                            [25 June 1996]

     The wording of this article is generally acceptable to us.  At the same
time it would be helpful to further elaborate the list of the causes of an
emergency in paragraph 1, adding, for example, causes such as the failures of
large dams or flood levee breaches.


                                    TURKEY

                                                            [Original: 
English]

                                                            [5 July 1996]

     The scope of the concept of "emergency" as defined in article 28 appears
too extensive.  It would be appropriate to restrict it to the framework of
utilization.


                      PART VI.  MISCELLANEOUS PROVISIONS

Article 29.  International watercourses and installations in time of armed
             conflict

                           UNITED STATES OF AMERICA

                                                            [Original: 
English]

                                                            [28 June 1996]

     Further consideration will need to be given to article 29, to ensure
that it reflects fully the relevant rules of international humanitarian law.

Article 32.  Non-discrimination

                                   COLOMBIA

                                                            [Original: 
Spanish]

                                                            [10 July 1996]

     The word "directly" should be added, so that the text would read as
follows:

         "Unless the watercourse States concerned have agreed otherwise for
     the protection of the interests of persons, natural or juridical, who
     have suffered or are under a serious threat of suffering significant
     transboundary harm as a result of activities directly related to an
     international watercourse ..."


                           UNITED STATES OF AMERICA

                                                            [Original: 
English]

                                                            [28 June 1996]

     The United States continues to stress the importance of public
participation in making decisions and resolving disputes related to
watercourses, and welcomes the incorporation of this concept in articles 32
and 33, and elsewhere in the convention.  We support article 32's emphasis on
facilitating public participation in proceedings relating to threats to an
international watercourse.  As is clear from the text of article 32 and
underscored by the commentary, this article in no way dispenses with national
law standing requirements applicable to all potential plaintiffs.

Article 33.  Settlement of disputes

                                    FINLAND

                                                            [Original: 
English]

                                                            [17 June 1996]

     It is unavoidable that substantial provisions of the draft articles
remain quite general in nature.  In order to reach a reasonable balance it
would be of great importance for the draft articles to include a binding
clause on the settlement of disputes.  With reference to our comments under
article 6, it is the view of Finland that arbitration or other judicial
settlement under paragraph (c) of article 33 should not be made subject to
further agreement between the States concerned.  Finland proposed therefore
that paragraph (c) of article 33 be amended to read as follows:

     "... the States have been unable to settle the dispute, they shall at
     the request of any of them have recourse to arbitration or other
     judicial settlement having jurisdiction in the dispute."

     The provisions of article 33 concerning judicial settlement procedures
may need to be further supplemented in a manner which enables States to
accept, at the time of signing, ratifying or acceding to the Convention, by
means of written declaration, the jurisdiction of other judicial settlement
procedures.  Had parties not accepted the same procedures, a dispute could
always be submitted to arbitration.


                                   GUATEMALA

                                                            [Original: 
Spanish]

                                                            [28 June 1996]

     Subparagraph (b) (ii) of article 33 should indicate where the Fact-
Finding Commission is to meet or whether that is one of the points that the
Commission itself will decide in determining its own procedure.


                                    HUNGARY

                                                            [Original: 
English]

                                                            [25 June 1996]

     It is commendable that the revised draft articles provide for a
settlement of disputes mechanism, which was not the case with the previous
draft.  That is definitely an improvement.  The centrepiece of this settlement
procedure is the establishment of a Fact-Finding Commission which could also
be initiated unilaterally.  The report of the Commission, however, is not
obligatory to the parties concerned and all the other traditional methods of
dispute settlement could also be resorted to only by the consent of the States
concerned.  It is our view that a recourse to arbitration or judicial
settlement should be made mandatory in the draft articles.


                                    TURKEY

                                                            [Original: 
English]

                                                            [5 July 1996]

     It would be more appropriate not to foresee any compulsory rules as
regards the settlement of disputes, and to leave this issue to the discretion
of the States concerned.  The Turkish Government believes that if, in the
absence of an applicable agreement, the States concerned agree with the
principle of having recourse to a dispute settlement mechanism, it should also
be up to those States to determine the rules of procedure.  A framework
agreement should not attempt to set forth detailed rules in this respect,
since it is virtually impossible to respond to the exigencies of specific and
more often than not complex cases of water disputes.  Therefore, article 33
should either be omitted or replaced by a general provision on settlement of
disputes.


                           UNITED STATES OF AMERICA

                                                            [Original: 
English]

                                                            [28 June 1996]

     The United States commends article 33 on settlement of disputes.  The
article offers a simple and flexible approach that will assist States with
watercourse disputes.  The fact-finding mechanism in particular reflects the
laudable approach of the International Law Commission of seeking cooperative
and widely acceptable solutions to watercourse problems.


                                   VENEZUELA

                                                            [Original: 
Spanish]

                                                            [25 June 1996]

     Venezuela believes that the dispute settlement mechanisms provided for
in this article, including preliminary consultations and negotiations,
unilateral recourse to impartial fact-finding, agreed recourse to mediation or
conciliation and the possibility of submitting the dispute, by mutual
agreement, to a jurisdictional procedure (arbitration or judicial settlement)
if a final settlement has not been arrived at within the stipulated period,
appear to be complete and sufficient to enable the parties to a dispute to
settle in good faith, and with the greatest of good will, any issue that may
arise between them.

     It therefore believes that the text should be maintained as drafted.


                                     -----


                                     Notes

1/       Official Records of the General Assembly, Forty-ninth Session,
Supplement No. 10 (A/49/10), para. 219. 

2/       General Assembly resolution 49/52, paras. 2 and 3.

3/       Report of the United Nations Conference on Environment and
Development, Rio de Janeiro, 3-14 June 1992 (United Nations publication, Sales
No. E.93.1.8 and corrigenda), vol. I:  Resolutions Adopted by the Conference,
resolution 1, annex II, para. 39.1.

4/       Observations of 3 November 1993, Revue suisse de droit international
et de droit europe'en (RSDIE), vol. 4, 1994, p. 609; observations of
10 January 1992, document A/CN.4/447, p. 44.

5/       Statement of 31 October 1994, RSDIE, vol. 5, 1995, p. 622; statement
of 31 October 1991, ibid., vol. 2, 1992, p. 576.

6/       United Nations, Treaty Series, vol. 1155, No. I-18232, p. 331.

7/       Statement of 31 October 1994, RSDIE, vol. 5, 1995, p. 623.

8/       Statement of 31 October 1994, RSDIE, vol. 5, 1995, p. 624.

 

This document has been posted online by the United Nations Department of Economic and Social Affairs (DESA). Reproduction and dissemination of the document - in electronic and/or printed format - is encouraged, provided acknowledgement is made of the role of the United Nations in making it available.

Date last posted: 28 December 1999 17:35:10
Comments and suggestions: esa@un.org