Berlin Rules

The Berlin Rules

The Berlin Rules on Water Resources

Introduction

In 1966, the International Law Association approved the Helsinki Rules on the Uses of International Rivers (ILA 1966). The Helsinki Rules quickly came to be seen as the authoritative summary of the customary international law on transboundary or internationally shared waters. In 1970, the UN General Assembly refrained from endorsing the Helsinki Rules, instead choosing to request the International Law Commission to prepare a set of draft articles on the “non-navigational uses of international watercourses modeled on the Helsinki Rules. The Commission did not complete its work on this project until 1994. The Commission’s Draft Articles in turn were reworked by the Sixth (Legal) Committee of the General Assembly into the United Nations Convention on the Law of Non-Navigational Uses of International Watercourse, approved by the General Assembly by a vote of 103-3 on May 21, 1997 (United Nations 1997). While ratifications of the UN Convention have proceeded slowly and it has yet to enter into force, it has become recognized as authoritative on the customary international law governing the issues it addresses. Finally, on August 21, 2004, the International Law Association, meeting in Berlin, approved the Berlin Rules on Water Resources as yet another authoritative summary of the customary international law applicable to waters—but this time to all waters and not just to transboundary or international waters (ILA 2004). I served as Rapporteur for the Berlin Rules.

This will strike some as rather a lot of effort going into a narrow and arcane field of law. Yet given the importance and growing scarcity of water resources in the world today, few areas of international law are of greater moment than that relating to water resources. Great as the concerns of individual water users are, the problems are magnified for communities and nations by the reality that water is an ambient resource that largely ignores human boundaries. All of the 264 largest rivers in the world flow through basins that are shared by more than one nation—basins that are home to at least 40 percent of the world’s population (Wolf 1998). The most cooperative of neighboring States have found it difficult to achieve mutually acceptable arrangements to govern transboundary surface waters even in relatively humid regions were fresh water is usually sufficient to satisfy most or all needs (McCaffrey 2001). Within federal unions located in humid regions, political subdivisions have engaged in long and bitter political and legal struggles over the waters they share. In arid regions, such conflicts become endemic and intense despite otherwise friendly relations or even membership in a federal union. No wonder the English derived the word “rival” from the Latin word “rivalis,” meaning persons who live on opposite banks of a river. The problems of transboundary aquifers have hardly begun to be faced (Symposium 2003). No wonder many observers conclude that there is considerable risk of conflict over water among neighboring nations or communities.

The outlook is not altogether bleak, however. The ambient nature of water creates a need for cooperation among the same groups who are contending over its allocation. In fact, considerable evidence suggests that cooperative solutions to water scarcity problems are more likely than prolonged conflict. At least in the twentieth century, water facilities have remained off limits to combat, cooperative water arrangements have been negotiated, and pre-existing arrangements have honored even while the bullets are flying—no matter how violent conflict between States sharing a common water source has become and especially when water itself has played a central role in the conflict (Dellapenna 1997). India and Pakistan are an excellent example. They have engaged in three full-scale, albeit limited, wars since 1948, as well as numerous other skirmishes and serious threats of war—all for reasons largely unrelated to their shared water resources. They have even developed nuclear weapons specifically to threaten each other. During this same period, however, the two States negotiated and implemented a complex treaty on sharing the waters of the Indus River basin, they did not target water facilities, and they carried through with the cooperative water management arrangements even during actual periods of full-scale hostilities. As historian Robert Collins observed, writing about another contested river, “Perhaps the weight of history lies too heavy in the silt of the Nile valley, but man will always need water; and in the end this may drive him to drink with his enemies” (Collins 1996).

The problem is how to structure cooperation in a way that increases trust and eliminates water as a possible reason for war while assuring efficient and ecologically sustainable water management and use. International law (particularly customary international law) by itself cannot solve this problem, but international law is an essential element of any solution. This article addresses the evolving body of customary international law as a vehicle for addressing water management problems, focusing on the Berlin Rules of Water Resources (ILA 2004).

The traditional customary international law of water resources

The claims and counterclaims among states involved in disputes over surface waters—the process whereby the traditional elements of customary international law (state practice and opinio juris) are established—follow a set pattern that diverges sharply according to the riparian status of the state (Dellapenna 1997; McCaffrey 2001). Upper riparian States initially claim “absolute territorial sovereignty,” claiming the right to do whatever they choose with water within their borders regardless of its effect on other States. Downstream States initially claim a right to the “absolute integrity of the watercourse,” claiming that upstream States can do nothing that affects the quantity or quality of water that flows down the watercourse. The utter incompatibility of the claims guaranteed that neither would prevail, yet the claims offered no solution for the conflicting interests of the upper and lower riparians. Eventually, through a process often requiring decades, States have found solutions through application of the principle of “equitable utilization.”

The principle of equitable utilization recognizes the right of all riparian States to use water from a common source so long as their uses do not interfere unreasonably with uses in another riparian state. Today, nearly all states agree that the numerous water treaties demonstrate the existence of a rule of customary international law that each state’s sovereignty over its water resources is restricted by the obligation not to inflict unreasonable injury on another state (ILA 1966; ILA 2004; United Nations 1997). The German Reichsgerichtshof expressed the point in these straightforward words:

“The exercise of sovereign rights by every State in regard to international rivers traversing its territory is limited by the duty not to injure the interest of other members of the international community. Due consideration must be given to one another by the States through whose territories there flows an international river. No State may substantially impair the natural use of the flow of such a river by its neighbors (Donauversinkung Case).”

The consensus of all relevant sources on customary international law on the rule of equitable utilization was crystallized and codified in the Helsinki Rules and the UN Convention (ILA 1966; UN 1997). These documents also, however, raise a possibility that other customary international legal law applies to the waters of the world in addition to the rule of equitable utilization.

The Helsinki Rules

Every group of international legal experts to consider the customary international law of internationally shared water resources has embraced the rule of equitable utilization in one form or another. These groups have no official standing as lawgivers, but their opinions carry special weight because of the stature of the members who worked on these projects, and because the approval of the end result carries the imprimatur of a large and diverse body of experts. Foremost among these groups is the International Law Association, a highly regarded nongovernmental organization of legal experts founded in 1873. The International Law Association completed the best-known study of the customary international law of transboundary water resources in 1966—the Helsinki Rules on the Uses of International Rivers (ILA 1966). The Helsinki Rules have heavily influenced state practice as well as the efforts of other international associations examining the law of internationally shared fresh waters.

The Helsinki Rules treat international drainage basins (watersheds extending over two or more States) as indivisible hydrologic units to be managed as a single unit to assure the “maximum utilization and development of any portion of its waters” (ILA 1966, art. II). This rule explicitly includes all tributaries (including tributary groundwater) within the concept of “drainage basin” and thus extends the reach of the rules beyond the primary international watercourse itself. The Helsinki Rules first formulated the phrase “equitable utilization” to express the rule of restricted sovereignty as applied to fresh waters: “Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin” (ILA 1966, art. IV). The Helsinki Rules also had chapters on pollution, navigation, timber floating, and procedures for preventing and settling disputes.

The International Law Association thereafter drafted rules relating to water-centered activities not addressed directly or adequately by the Helsinki rules, including flood control (1972), pollution (1972, 1982), navigability (1974), the protection of water installations during armed conflicts (1976), joint administration (1976, 1986), flowage regulation (1980), general environmental management concerns (1980), groundwater (1986), cross-media pollution (1996), and remedies (1996). Some of these supplemental rules developed a second basic principle governing the management of internationally shared water resources, that States not cause “substantial damage” to the environment or to the natural condition of the waters beyond the limits of the nation’s jurisdiction. In general, however, the International Law Association remained fixated on the rule of equitable utilization as the only significant rule in the customary international law of water resources.

The UN Convention

The UN General Assembly approved a convention—the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (United Nations 1997)—that was modeled on the Helsinki Rules (ILA 1966). The central debate in the drafting of the UN Convention was over the relation of the rule of equitable utilization and the so-called no-harm rule (Dellapenna 2001). The two rules, as finally approved by the General Assembly, are set forth in articles 5 and 7:

Article 5
Equitable and reasonable utilization and participation
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 and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection in the watercourse.
2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present articles.

Article 7
Obligation not to cause appreciable harm
1. Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.
2. Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

While there is room for debate over the point, Article 7 appears to be definitely subordinated to the rule of equitable utilization in Article 5. Given that each state’s actions, if undertaken without regard for the interests of the other state, would inflict harm on the other, one could hardly reach any other conclusion (Dellapenna 1996).

Overall, the UN Convention contains 37 articles dealing with the obligations of riparian States to share the common resource, to consult with each other, to protect the environment, and to resolve disputes. The articles on international consultations, environmental protection, and on resolution of disputes go well beyond the comparable provisions of the Helsinki Rules. Give the generally cautious approach of the drafters of the UN Convention—limiting their work to transboundary water issues and even refusing to including groundwater within the scope of the convention unless the groundwater was directly connected to a surface international watercourse—drafters’ intent appears to have been to codify customary international law rather than to “progressively develop” it.

This point assumes considerable importance because ratifications of the UN Convention have proceeded slowly, raising considerable doubt whether or when it will enter into effect. Eight years after General Assembly approved the UN Convention, only 16 States have signed it, and only 12 States have ratified it. No new States have acted on it since Namibia ratified the convention in August 2001. Yet just because the Convention is not being ratified does not mean that it has had no effect. In the same year as the General Assembly approved the Convention, the International Court of Justice referred to the Convention as expressing the customary international law of transboundary waters—specifically regarding those new rules on environmental protection (Gabcíkovo-Nagymoros Case 1997). Whether the new mandates regarding international consultations and dispute resolution similarly reflect customary international law remained unclear.

Groundwater

Groundwater makes up about 97 percent of the world’s fresh water apart from the polar ice caps and glaciers. Yet, in contrast to the considerable state practice regarding the sharing of surface water sources, there has been remarkably little state practice regarding shared underground water sources. Newer technologies and exponential growth in demand for water in the second half of the twentieth century have made groundwater a critical transnational resource that is increasingly the focus of disputes between nations yet for which no consistent body of state practice has yet emerged. For example, the United States and Mexico, have several treaties governing the waters of the border regions, yet their water treaties are silent on groundwater with potentially disastrous results (Aparicio & Hidalgo 2004); Symposium 2000).

As a result, the International Boundary and Waters Commission that the too nations have created to address transboundary water concerns have hardly begun to address the increasing stresses on their shared groundwater (Mumme 2002). Nonetheless, all commentators have concluded that groundwater must be subject to the same rules as apply to surface waters—if only because groundwater and surface water are the same thing moving in differing stages of a single hydrologic cycle. The UN Convention, however, adopted an extremely restrictive approach, however, including only groundwater that drains to a “common terminus” with surface waters within its definition of a “watercourse” (United Nations 1997, art. 1). This definition ignores the fact that groundwater might be interdependent with surface water sources and yet follow other paths to the sea (or other terminus).

The Berlin Rules

At its meeting in Edinburgh in January 1996, the Water Resources Law Committee of the International Law Association voted to compile and review the entire body of its and its predecessor committees’ work from the Helsinki Rules of 1966 through various supplementary rules approved by the Association through 1996. The Committee and the Association confirmed this decision at the biennial conference of the Association in August 1996, appropriately in Helsinki. I agreed to undertake the initial step, a consolidated compilation of the various rules approved by the Association. Based upon this consolidated draft, the Committee decided, at a meeting in Rome in June 1997, to attempt to revise the Helsinki Rules and their supplemental rules in light of the contemporary customary international law. I served as Rapporteur of this effort, which concluded in Berlin in 2004 with the International Law Association’s approval of the Berlin Rules on Water Resources (ILA 2004).

The Berlin Rules set forth a clear, cogent, and coherent summary of the relevant customary international law, incorporating the experience of the nearly four decades since the Helsinki Rules were adopted. The Berlin Rules take into account the development of important bodies of international environmental law, international human rights law, and the humanitarian law relating to the war and armed conflict, as well as the adoption by the General Assembly of the UN Convention. The Berlin Rules include within their scope both national and international waters to the extent that customary international law speaks to those waters. Indeed, some of the rules go beyond speaking strictly about waters and address the surrounding environment that relates to waters (the “aquatic environment”) and the obligation to integrate the management of waters with the surrounding environment. The major changes in the Berlin Rules relate to the rules of customary international law applicable to all waters—national as well as international, although there are certain refinements in the rules relating strictly to international waters. By including all of these matters within a single set of rules, a lawyer, a jurist, a water manager, a water policy maker, or anyone else concerned by the rules of customary international pertaining to water will, for the first time, find all the relevant rules in one place, with attention to the interrelationships of the rules as well as to their clear statement.

After an initial chapter that sets forth the scope of the chapter and key definitions, Chapter II sets forth the general principles applicable to all waters: the right of public participation, the obligation to use best efforts to achieve both conjunctive and integrated management of waters, and duties to achieve sustainability and the minimization of environmental harm. Chapter III sets forth the basic principles applicable solely to international waters. The remaining chapters develop these basic principles in significant detail. The refinements in the rules applicable solely to international waters (principally found in chapters III, IX, XI) pertain mostly to recognizing the importance of the obligations regarding environmental protection and public participation that apply even to those waters. The International Law Association has once again revisited the recurring debate about the relation of the rule of equitable utilization and the rule requiring the avoidance of significant harm, with a new formulation of that relationship that will no doubt attract yet more discussion of the question (articles 12 & 16). Certain other chapters relating to armed conflict (chapter X), state responsibility (chapter XII), private legal remedies (chapter XIII), and the settlement of international dispute (chapter XIV) also contain certain refinements without making any substantial departure from the Helsinki Rules and the UN Convention.

Much or most of the chapters dealing with all water (national and international) either are new or are significantly different from the content of the Helsinki Rules and the UN Convention, both of which restricted their coverage solely to international waters. Chapter IV deals with the rights of persons (including, in articles 20 and 21, the rights of persons organized as communities). Chapter V deals in considerable detail with the protection of the environment, including the obligation to protect the ecological integrity of the aquatic environment (including, but not limited to, the duty to protect ecological flows and the prevention of the introduction of alien species), the obligation to apply the precautionary approach, and the duty to prevent, eliminate, reduce, or control pollution as appropriate (including a special rule on hazardous substances). Chapter VI addresses the obligation to undertake the assessment of environmental impacts of programs, projects, or activities relating to all waters—national and international. Chapter VII sets forth obligations for cooperative and separate responses to extreme situations, including highly polluting accidents, floods, and droughts).

Perhaps the most significant innovations in the Berlin Rules are found in chapter VIII dealing with groundwater. The Seoul Rules, approved by the International Law Association in 1986 as a supplement to the Helsinki Rules to address groundwater (ILA 1986), only said that the same rules applied to groundwater as applied to surface waters. The UN Convention said even less about groundwater. While it is true that in principle the same rules apply to groundwater (the obligation of conjunctive management implies as much), the characteristics of groundwater are so different from surface water sources that the Berlin Rules set about to spell out in some detail how the general principles and rules apply specifically to the management of aquifers. Most of the rules in chapter VIII apply to all aquifers (national and international), although one rule speaks specifically to legal issues relating to transboundary aquifers (article 42). The chapter also makes explicit that its rules apply to all aquifers, regardless of whether the aquifer is connected to surface waters or whether it receives any significant contemporary recharge (article 36).

The Berlin Rules incorporate the experience of the nearly four decades since the Helsinki Rules were adopted, taking into account the development of important bodies of international environmental law, international human rights law, and the humanitarian law relating to war and armed conflict, as well as the adoption by the General Assembly of the United Nations of the UN Convention. The Berlin Rules represent a bold departure in the formulation of the customary international law of water resources if they are compared to the Helsinki Rules. Yet compared to international environmental law and the international law of human rights, the Berlin Rules are not bold at all. Time will tell whether governments, courts, and international lawyers will accept the Berlin Rules as fully or as quickly as they accepted the Helsinki Rules. There are few changes in the rules applicable solely to international waters (chapters III, IX, XI), although there are some refinements in certain of these rules. Certain other chapters relating to armed conflict (chapter X), state responsibility (chapter XII), private legal remedies (chapter XIII), and the settlement of international disputes (chapter XIV) also have refinements without substantial departure from the Helsinki Rules and the UN Convention.

The New Paradigm

The Helsinki Rules and the rules supplementary thereto largely limited their approach to the rule of equitable utilization and the prevention of transboundary harm. The UN Convention, while giving more attention to the prevention of various kinds of harm, also limits its rules to transboundary contexts. The nature of customary international law being as it is, there is always room for debate whether a particular practice of States has reached the status of binding international law, as well as about the precise content of the customary rules. Which is why some of the new articles do not proclaim absolute standards, but indicate only that States are to use “best efforts” or “take all appropriate measures” or the like. Some of the new articles are firmly grounded in international human rights law, and are well beyond question. Other articles are supported strongly by international environmental agreements that have entered into force and are widely followed even in nations that have not ratified them. The International Law Association easily concluded that these rules do indeed correctly summarize the current state of customary international as it pertains to water resources. In doing so, the Association approved a new paradigm for synthesizing the somewhat disparate rules into a coherent whole based on a recognized set of legal principles.

The new paradigm found in the Berlin Rules has gained acceptance in customary international over the last 30 years or so without being fully identified or articulated before. This paradigm includes of five general principles that apply to States in the management of all waters, wholly national or domestic waters as well as internationally shared waters:
1. Participatory water management (arts. 4, 17-21, 30, 69-71);
2. Conjunctive management (arts. 5, 37);
3. Integrated management (arts. 6, 22-24, 37-41);
4. Sustainability (arts. 7, 10(1), 12(2), 13(2)(h), 22, 23(1), 29, 35(2)(c), 38, 40, 54(1), 58(3), 62, 64(1)); and
5. Minimization of environmental harm (arts. 8, 13(2)(i), 22-35, 38-41).

Additionally, the Berlin Rules posit three further rules relating to water in a strictly international or transboundary context:
6. Cooperation (arts. 9(2), 10, 11, 32-35, 42, 56-67);
7. Equitable utilization (arts. 12-15, 42); and
8. Avoidance of transboundary harm (arts. 16, 42).
This new paradigm—a coherent, comprehensive, and comprehensive vision of the current state of the relevant customary international law—should lawyers, water managements, and other decision makers well.

Author: DELLAPENNA, Joseph W

Further Reading

APARICIO, Javier, & Jorge HIDALGO. 2004. “Water Resources Management at the Mexican Borders,” Water International 29:362-74.
COLLINS, Robert. 1996. The Waters of the Nile: Hydropolitics and the Jonglei Canal, 1900-1988. Markus Wiener Publishers, Princeton, NJ.
DELLAPENNA, Joseph W. 1996. “The Two Rivers and the Land between: Mesopotamia and the International Law of Transboundary Waters,” BYU Journal of Public Law 10:213-61.
DELLAPENNA, Joseph W. 1997. “Population and Water in the Middle East: The Challenge and Opportunity for Law,” International Journal of the Environment & Pollution 7:72-110.
DELLAPENNA, Joseph W. 2001. “The Customary International Law of Transboundary Fresh Waters,” International Journal of Global Environmental Issues 1:264-305.
Donauversinkung Case (Württemberg & Prussia vs. Baden), 116 Entsheidungen des Reichsgerichts in Zivilsachen 1 (Germany Staatsgerichtshof 1927), reprinted in Ann. Digest of Pub. Int’l L. Cases 128 (H. Lauterpacht ed. 1931).
Gabcíkovo-Nagymoros Case (Hungary v. Slovakia), 1997 ICJ No. 92
INTERNATIONAL LAW ASSOCIATION. 1966 (“ILA 1966”). “The Helsinki Rules on the Uses of the Waters of International Rivers,” in Report of the Fifty-Second Conference (Helsinki). International Law Association, London, UK.
INTERNATIONAL LAW ASSOCIATION. 1986. “International Rules on Groundwater,” in Report of the Sixty-Second Conference (Seoul 1986). International Law Association, London, UK.
INTERNATIONAL LAW ASSOCIATION. 2004 (“ILA 2004”). “The Berlin Rules on Water Resources,” in Report of the Seventy-First Conference (Berlin). International Law Association, London, UK.
MCCAFFREY¬, STEPHEN C. 2001. The Law of International Watercourses: Non-Navigational Uses. Oxford University Press: Oxford, UK.
MUMME, Stephen P. 2002. “The Case for Adding an Ecology Minute to the 1944 United States-Mexico Water Treaty,” Tulane Environmental Law Journal 15:239-56.
Symposium. 2000. “Transboundary Groundwater on the U.S.-Mexican Border,” Natural Resources Journal 40:185-473.
Symposium. 2003. “Transboundary Aquifers,” Water International 28:143-200.
UNITED NATIONS. 1997. “UN Convention on the Law of Non-Navigational Uses of International Watercourses,” UN Doc. No. A/51/869.
WOLF, Aaron T. 1998. “Conflict and Cooperation along International Waterways,” Water Policy 1:251-65.

Berlin Rules

Embracing mainstream international law, this section on berlin rules explores the context, history and effect of the area of the law covered here.

Resources

Further Reading

  • The entry “berlin rules” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

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