See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/344273915

The current state of development of the no significant harm principle: How

far have we come?

Article in International Environmental Agreements · December 2020

DOI: 10.1007/s10784-020-09501-8

CITATIONS READS

14 420

1 author:

Owen McIntyre
University College Cork
132 PUBLICATIONS 723 CITATIONS

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Working on several projects outlined below! View project

All content following this page was uploaded by Owen McIntyre on 23 September 2020.

The user has requested enhancement of the downloaded file.

The current state of development of the no
significant harm principle: How far have
we come?

Owen McIntyre

International Environmental
Agreements: Politics, Law and
Economics

ISSN 1567-9764

Int Environ Agreements

DOI 10.1007/s10784-020-09501-8

1 23
Your article is protected by copyright and
all rights are held exclusively by Springer
Nature B.V.. This e-offprint is for personal
use only and shall not be self-archived
in electronic repositories. If you wish to
self-archive your article, please use the
accepted manuscript version for posting on
your own website. You may further deposit
the accepted manuscript version in any
repository, provided it is only made publicly
available 12 months after official publication
or later and provided acknowledgement is
given to the original source of publication
and a link is inserted to the published article
on Springer's website. The link must be
accompanied by the following text: "The final
publication is available at link.springer.com”.

1 23
 Author's personal copy
Int Environ Agreements
https://doi.org/10.1007/s10784-020-09501-8

ORIGINAL PAPER

The current state of development of the no significant harm

principle: How far have we come?

Owen McIntyre1

Accepted: 10 July 2020

© Springer Nature B.V. 2020

Abstract
The duty to prevent significant transboundary harm remains a cornerstone principle of
international law, and especially of international environmental and water resources law.
However, this rule focuses on the conduct of a State where harm originates, rather than
on the fact that harm has resulted from such conduct, and thus requires that States exer-
cise due diligence in anticipating and in preventing or mitigating such harm. At a practical
level, the due diligence standard of conduct expected of States can be uncertain and diffi-
cult to determine, as it must be deduced from the applicable primary rules of international
environmental or water resources law, which have traditionally been elaborated in rather
vague terms. In addition, the standard of due diligence required under the no-harm rule
may be influenced by a range of variable and context-specific factors which might prove
relevant in the particular circumstances of any dispute. Such uncertainty is further com-
pounded in the field of international water law by the complex interrelationship between
the no-harm rule and the other key norms of international water law, particularly the car-
dinal principle of equitable and reasonable utilization, which embodies a high degree of
flexibility and adaptability and suffers from a corresponding degree of normative indeter-
minacy. Thankfully, recent developments in international water law and related practice
regarding the requirement to protect riverine ecosystems and maintain related ecosystem
services lend a welcome measure of clarity as regards the preventive measures expected
of watercourse States under international law. Judicial recognition of obligations to main-
tain minimum environmental flows and to preserve or restore riverine ecosystem services,
based on the proliferation of such values in treaty and declarative practice, along with the
continuing development of sophisticated technical methodologies for ecosystems assess-
ment and evaluation, do much to inform the due diligence conduct required of States. Such
advances can only enhance the practical utility of the no-harm rule, and thus of the entire
corpus of international water law, in addressing the challenges emerging globally for water
resources management in the twenty-first century.

Keywords No significant harm · Due diligence · Ecosystem services

* Owen McIntyre
[email protected]
1
Centre for Law and the Environment, School of Law, University College Cork, Cork, Ireland

13
Vol.:(0123456789)
 Author's personal copy
O. McIntyre

Abbreviations
MEA Multilateral environmental agreements
ICJ International Court of Justice
PCIJ Permanent Court of International Justice

1 Introduction

Few principles are more firmly established in international law generally, and in interna-
tional environmental and water resources law more particularly, than that of the duty of
States to prevent significant transboundary harm. The duty of prevention, or ‘no-harm’
rule, as applied in an environmental context, has received the consistent support of judi-
cial and arbitral tribunals since the celebrated Trail Smelter Arbitration and has become
an omnipresent feature of multilateral environmental agreements (MEAs) and declarative
instruments, as well as of global, regional and basin-level water resources conventions.
Several factors have facilitated such universal acceptance of this rule. For one thing, it has
its roots in each of the major legal traditions of the world and reflects the most basic princi-
ples found in every major system of national law (McIntyre 2007). For another, it exempli-
fies the sovereign equality of States, as recognized in Article 2 of the United Nations Char-
ter, and the associated right of States to non-interference with their sovereign territorial
interests (Maljean-Dubois 2011).
Despite universal support in judicial deliberation and in the treaty and declarative prac-
tice of States, however, the no-harm rule tends to be formulated in a rather general manner,
so that its legal and practical implications for States in seeking to comply with the require-
ments of international environmental and natural resources law have remained somewhat
unclear. In the specific context of international watercourses, articulations of the principle
tend to be vague regarding its precise normative requirements for watercourse States in the
utilisation and environmental protection of shared waters and associated aquatic ecosys-
tems (Handl 1975). With limited exceptions (UNECE Water Convention, Article 2), inter-
national treaty instruments tend to provide little guidance as to the nature or extent of the
due diligence obligations that they impose upon basin States, or as to the precise categories
of harm covered by the no-harm rule.
It is telling that formal findings of State responsibility are something of a rarity in cases
of harm to the sovereign interests of watercourse States, or to transboundary watercourse
systems, despite the fact that such harm tends to produce immediate and obvious effects
and to allow relatively easy identification of the State that is the source of such harm. In
fact, it appears that uncertainty regarding the precise normative implications of the key
substantive rules and principles of international water law, including the ‘no-harm’ rule,
has led disputing States to seek to rely upon alternative legal means for the resolution of
water-related disputes (McIntyre 2018). These have included the negotiation of ad hoc
inter-State settlement arrangements, reliance upon compliance mechanisms established
under international water resources agreements or multilateral environmental agreements,
or the establishment of specialised treaty-based civil liability regimes for certain classes of
hazardous activity. Nevertheless, such initiatives have had very limited success in address-
ing what is likely in the near future to become an increasingly common source of inter-
State disagreement.
In recent years, however, the parameters of the no-harm rule have received wel-
come judicial elaboration, at least as it applies in the context of environmental harm in

13
 Author's personal copy
The current state of development of the no significant harm…

international watercourses, which may encourage watercourse States to rely more upon it,
both as a substantive rule guiding inter-State cooperation over shared water resources and,
ultimately, as a ground of action in international water disputes. Notably, the deliberations
of the International Court of Justice (ICJ) in the 2010 Pulp Mills case and the 2015 San
Juan River cases provide some, though not entirely consistent, guidance as to the substan-
tive and procedural aspects of the due diligence measures demanded of State actors under
the principle, and of the functional interaction between each of these categories of meas-
ures. In addition, the Permanent Court of Arbitration (PCA) Tribunal established in the
2013 Kishenganga Arbitration has highlighted a watercourse State’s failure to maintain
minimum environmental flows in an international watercourse as an actionable breach of
the general requirements of international water law. Of greatest significance, perhaps, the
2015 and 2018 judgments of the ICJ in the joined San Juan River cases, in which the Court
recognised the loss of ecosystem services associated with a watercourse State’s riparian
rights as amounting to compensable material damage, and in which the Court was prepared
to quantify the monetary value of such ecological damage for the purpose of assessing
and awarding compensation, may herald a new era for the no-harm principle in the field of
international water law, and beyond, in terms of its normative clarity and of the ultimate
justiciability of its substantive values.
This article begins by introducing the origins of the duty of prevention in international
law and examining its status as a fundamental rule of customary international law, before
exploring limited reliance upon it under the doctrine of State responsibility, largely due
to uncertainty regarding the no-harm rule’s precise normative implications. It also briefly
examines the nature of the transboundary harm which States are expected to take meas-
ures to prevent and introduces the growing concern in international water law regarding the
maintenance of ecosystems and ecosystem services. This leads to an analysis of the nature
of the due diligence standards of State conduct required under the no-harm rule and an
examination of the various factors which may impact upon such standards. The article con-
cludes by briefly identifying the due diligence standards emerging in respect of the preser-
vation of watercourse ecosystems and speculates on their significance for the future utility
of the rules of international water law.

2 Origins of the ‘no‑harm’ rule

Though scholars can trace the foundations of the duty of States to prevent significant
transboundary harm to the work of Grotius in the seventeenth century (Hessebruegge
2004), it truly emerged in State, judicial and arbitral practice in the late nineteenth and
early twentieth centuries with recognition of the duty of States to take reasonable meas-
ures to protect aliens within their territory (Dunn 1932). This reciprocal duty evolved
in step with ever greater movement of citizens across territorial borders as a way of
compelling host States to ensure the physical protection of foreigners and of foreign
property interests, particularly within emerging nation jurisdictions (ILA Study Group
2014). Building upon earlier international jurisprudence (Alabama Claims Arbitration,
1872), this duty extended from the beginning to cover harm caused by private actors
within a host State’s territory and comprised both a duty to protect foreign citizens from
private criminal acts and a duty to prosecute and punish those who caused injury to
aliens and their property. This was apparent in the seminal Lac Lanoux case, where
the Arbitral Tribunal elaborated the relevant rules of international law to which ‘[a]ll

13
 Author's personal copy
O. McIntyre

still and running water, whether in the public or private domain, shall be subject’ (Lac
Lanoux Arbitration, 1957, para. 1063). It was also clear from the beginning, however,
that the no-harm rule was a “due diligence” obligation, imposing standards of State con-
duct. Thus, in the Wipperman Case the US-Venezuela Mixed Claims Commission stated
that no State is responsible for acts of individuals ‘as long as reasonable diligence is
used in attempting to prevent the occurrence or recurrence of such wrongs’ (ILA Study
Group 2014).
The application of the no-harm rule to cases of transboundary environmental damage
can be traced back to the Trail Smelter case (Trail Smelter Arbitration, 1941), where a
private Canadian operator located close to the US border caused significant pollution
within the territory of the latter leading to the establishment by the two States of an
arbitral tribunal to resolve the resulting inter-State dispute (French 2018). The Tribunal
famously found that.
‘under the principles of international law … no State has the right to use or permit
the use of its territory in such a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein, when the case is of seri-
ous consequence and the injury is established by clear and convincing evidence.’
Though the Tribunal had little need in this case to deliberate upon the nature of the
preventive measures required to satisfy the due diligence expected of the State of origin,
as the two States had already settled the question of Canadian legal responsibility for
the effects of the transboundary pollution, it did accept that any due diligence stand-
ard should have regard to the capacity of Canada, through the deployment of emissions
control technologies, to limit transboundary damage (Stephens 2009; ILA Study Group
2014).
The generally applicable customary duty of prevention as applied to environmental
harm has been consistently endorsed in international declarative practice, notably in Prin-
ciple 21 of the 1972 Stockholm Declaration and Article 10 of the 1987 Principles and Rec-
ommendations adopted by the Bruntland Commission’s Expert Group on Environmental
Law (EGEL 1987), and is now codified in Principle 2 of the 1992 Rio Declaration, which
links it to each State’s right to exploit its natural resources, including, presumably, freshwa-
ter resources. Principle 2 provides that.
State have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the environ-
ment of other States or of areas beyond the limits of national jurisdiction.
The legal nature of the duty of prevention is further developed by the International Law
Commission’s (ILC) 2001 Draft Articles on Prevention, which apply quite generally to
‘activities not prohibited by international law which involve a risk of causing significant
transboundary harm through their physical consequences’ (Draft Article 1), and are ‘pri-
marily concerned with the management of risk and emphasise the duty of cooperation and
consultation among all States concerned’.
Numerous eminent commentators have confidently concluded that the duty of preven-
tion has achieved the status of customary international law (e.g. Wolfrum 1990; Brown
Weiss et al. 1998). Dupuy provides an articulation of the normative core of the no-harm
rule ‘on the basis of a broad comparison of treaty law, international resolutions, and
regional practice’, which requires that States

13
 Author's personal copy
The current state of development of the no significant harm…

‘shall take in good faith and with all due diligence, appropriate measures to prevent
transfrontier pollution by elaborating, in particular, rules and procedures adapted to
the requirements of the protection of the environment, and see to it that these are
effectively applied’ (Dupuy 1991).
While a detailed survey of State and treaty practice in the field of international environ-
mental law is entirely beyond the scope of this article, it is beyond question that the no-
harm rule has long been firmly established in the area, so much so that ‘[w]e could almost
consider that the other customary rules [of international environmental law] simply derive
from it’ (Maljean-Dubois 2011). In Pulp Mills, the ICJ appeared to regard prevention as
the wellspring of a range of other customary environmental rules, such as that requiring
environmental impact assessment, all of which function to discharge the due diligence obli-
gations inherent to the duty of prevention (McIntyre 2013). At any rate, it is perfectly clear
that any comprehensive survey of State treaty practice specifically related to international
watercourses (Fuentes 1998) will demonstrate that
‘watercourse States have for some considerable time included, as a matter of course,
in instruments relating to the management and utilisation of international water-
courses, express provisions requiring that States refrain from causing or permitting
injury or damage to other watercourse States by virtue of environmental pollution’
(McIntyre 2007).
There can be no doubting the ICJ’s emphatic recognition of the status of the duty of pre-
vention, and of its relevance in the field of international water law. Recognising that ‘the
principle of prevention, as a customary rule, has its origins in the due diligence that is
required of a State in its territory’ (ICJ, Pulp Mills Case 2010, para. 101), the International
Court of Justice restated its own earlier formulation of the rule as ‘every State’s obligation
not to allow knowingly its territory to be used for acts contrary to the rights of other States’
(ICJ, Corfu Channel Case 1949, p. 22). The Court in Pulp Mills also emphatically restated
its own earlier finding that the no-harm rule ‘is now part of the corpus of international law
relating to the environment’ (ICJ, Legality of the Threat or Use of Nuclear Weapons 1996,
para. 29), which the Court clearly understands as including the sub-field of international
water law. The Court reproduced this earlier endorsement of ‘[t]he existence of the general
obligation of States to ensure that activities within their jurisdiction and control respect
the environment of other States and of areas beyond national control’ (ICJ, Legality of the
Threat or Use of Nuclear Weapons 1996, para. 29) as evidence of ‘the great significance
that it attaches to respect for the environment, not only for States but also for the whole of
mankind’ (ICJ, Gabčíkovo-Nagymaros Project 1997, para. 53).

3 State responsibility for significant harm

Though the ‘no-harm’ rule, and its direct applicability in cases of environmental harm to
shared water resources, is universally accepted by States and firmly established in inter-
national law, we can point to very few water-related inter-State disputes which have led
to a finding of responsibility on the part of one or more riparian parties for breach of this
obligation. Despite decades of deliberation by the International Law Commission (ILC
2001a Draft Articles on State Responsibility; ILC 2001b Draft Articles on Prevention of
Harm; ILC 2006 Principles on the Allocation of Loss in the Case of Transboundary Harm
Arising Out of Hazardous Activities) aimed at clarifying the relevant secondary rules

13
 Author's personal copy
O. McIntyre

of international law on State responsibility and liability, the position remains somewhat
inconclusive (McIntyre 2018). Scholars continue to debate the main principles and forms
of State responsibility arising, as well as the types of harm and the categories of acts or
omissions of States to which each might apply (Barnidge 2006; Pisillo Mazzeschi 1991).
However, the ILC’s 2001 Draft Articles on State Responsibility, which provide the most
authoritative statement on the relevant customary rules, take an ‘essentially neutral posi-
tion’ on such issues (Crawford 2007), with Article 2 defining an “internationally wrongful
act of a State” as ‘conduct consisting of an action or omission [that]: (a) is attributable to
the State under international law: and (b) constitutes a breach of an international obliga-
tion of the State’ (emphasis added). This emphasis on State ‘conduct’ appears to anticipate
that due diligence standards would normally play a key role in determining ‘breach’, even
though a key architect of the Draft Articles, explains that ‘[i]f the primary rules require
fault (of a particular character) or damage (of a particular kind) then they do; if not, then
not’ (Crawford 1999). Therefore, ‘the nature of the due diligence obligation is a matter
to be resolved by the underlying primary rules, not the secondary rules of state responsi-
bility’ (Barnidge 2006). Such “primary rules” may be described as ‘those customary or
treaty rules laying down substantive obligations for States’, and such “secondary rules” as
‘rules establishing (1) on what conditions a breach of a “primary rule” may be held to have
occurred and (2) the legal consequences of this breach’ (Cassese 2005). Such “secondary
rules” can be understood as the ‘framework for the application of these [primary] obliga-
tions, whatever they may be’ (Crawford and Olleson 2005). The commentary to the 2001
Draft Articles on State Responsibility confirms this position, explaining that ‘[s]uch stand-
ards vary from one context to another for reasons which essentially relate to the object and
purpose of the treaty provision or other rule giving rise to the primary obligation’.
Characterising the general obligation of prevention as it appears in most environmental
conventions, one commentator observes that
It is clear that such agreements do not establish the strict obligation not to pollute
(obligation of result), but only the obligation to “endeavour” under the due diligence
rule to prevent, control and reduce pollution. For this reason, the breach of such obli-
gation involves responsibility for fault (rectius: for lack of due diligence) (Pisillo-
Mazzeschi 1991).
Equally, it is quite clear that general international law on the use and protection of interna-
tional watercourses envisages a regime of State responsibility for breach of due diligence
obligations owed by the State, where due diligence may be considered ‘as an objective and
international standard of behaviour’ (Pisillo Mazzeschi 1991), yet a standard that can only
be identified having due regard to the particular circumstances of each case:
Assuming that the primary rules at issue impose a due diligence standard of conduct
on the state, then the nature of the rights and interests at issue, as well as a number
of other factors, will determine whether the conduct breaches the state’s international
obligation (Barnidge 2006).
He might easily have had in mind the ‘no-harm’ rule as applied in international water law,
and as codified in Article 7 of the 1997 UN Watercourses Convention and Article 2(1) of
the 1992 UNECE Water Convention, where the rule is heavily circumscribed in its applica-
tion by the principle of equitable and reasonable utilisation, requiring watercourse States to
take account of the water-related interests of co-riparian States having regard to a range of
factors considered relevant in identifying and quantifying such interests. The distributive
equity which characterises this apex principle, and international water law more generally,

13
 Author's personal copy
The current state of development of the no significant harm…

simply reflects people’s unique dependence upon water as a natural resource, while the
principle’s flexibility and resulting normative indeterminacy reflects the fact no two river
basins are remotely similar—ecologically, hydrologically, demographically, economically,
socially, politically or culturally. These realities have tended to obscure the parameters
of the due diligence standard of conduct expected of watercourse States and, as a conse-
quence, the practical application of the no-harm rule in international water law.
It is quite clear from the 2001 ILC Draft Articles on State Responsibility, however, that
responsibility can arise on the basis of a State’s failure to act, as well as from affirmative
State action. Draft Article 2 includes within the definition of an “internationally wrongful
act” of a State ‘conduct consisting of an action or omission’, and the ILC Commentary
notes that ‘[c]ases in which the international responsibility of a State has been invoked
on the basis of an omission are at least as numerous as those based on positive acts, and
no difference in principle exists between the two’. Therefore, where primary rules require
a due diligence standard of State conduct, the general principles of State responsibility
appear to contemplate, in addition to affirmative acts of State organs or officials, omissions
relating to the acts of private legal persons. In the specific context of international environ-
mental or water resources law, such omissions might include a State’s failure to regulate or
prevent pollution of an international watercourse or aquifer or over-abstraction of its waters
by a non-State actor.

4 Transboundary ‘harm’

In the field of international water law, global, regional and basin-level conventions have
tended to address a range of problems, such as maintenance of minimum flow requirements
(1995 Mekong River Agreement, Article 6), prevention of transboundary impacts (1992
UNECE Water Convention, Article 2) and the protection of water quality (1994 Treaty of
Peace between Israel and Jordan, Article 3 Annex II), thereby providing an indication of
the full extent of the range of species of “harm” that States are required to take appropriate
measures to prevent. The extensive and diverse range of harm potentially covered by the
duty of prevention is acknowledged by a leading authority in the field, who explains that
“[h]arm” may take the form of a diminution of quantity of water, due e.g. to new
upstream works or pumping of groundwater … [or] … could also result from, e.g.
pollution, obstruction of fish migration, works on one bank of a contiguous water-
course that caused erosion of the opposite bank, increased siltation due to upstream
deforestation or unsound grazing practices, interference with the flow regime, chan-
neling of a river resulting in erosion of the riverbed downstream, conduct having
negative impacts on the riverine ecosystem, the bursting of a dam, and other actions
in one riparian state that have adverse effects in another, where the effects are trans-
mitted by or sustained in relation to the watercourse (McCaffrey 2001).
It appears, therefore, that the obligation to prevent harm is not confined to one State’s
direct use of a watercourse that causes harm to another State’s use thereof, as ‘activities
in one State not directly related to a watercourse (e.g. deforestation) may have harmful
effects in another State (e.g. flooding)’ (McCaffrey 2001). Similarly, the commentary to
Article X of the seminal Helsinki Rules notes that, for the purposes of the no-harm rule,
‘an injury in the territory of a State need not be connected with that State’s use of the
waters’ (ILA 1966). As regards the significance threshold for transboundary harm that

13
 Author's personal copy
O. McIntyre

is to be prevented under international water law [UN Watercourses Convention, Article

7(1)], the ILC explained in 1988, in an era when international water law was principally
concerned with economic uses of and benefits derived from shared water resources, that
‘[t]here must be a real impairment of use, i.e. a detrimental impact of some consequence
upon, for example, public health, industry, property, agriculture or the environment in the
affected State’ (ILC 1988).
Today, however, impacts upon the functioning of aquatic ecosystems and/or loss of eco-
system services would certainly be included among the significant detrimental impacts
upon the environment envisaged by the Commission (San Juan River cases 2015). It is
quite clear that interference with the minimum environmental flow of an international
watercourse could now be regarded as having caused significant harm (Kishenganga Arbi-
tration 2013, para. 454; San Juan River cases, 2015, paras. 105 and 119). Similarly, any
material interference with or loss of ecosystem services provided by the riverine ecosystem
of a shared watercourse may amount to actionable significant harm. It is notable in this
regard that the ICJ has found in respect of four categories of ecosystem services (out of 22
types of ecosystem services identified in the dispute, and six types for which compensation
was claimed) that:
These activities have significantly affected the ability of the two impacted sites to
provide the above-mentioned environmental goods and services. It is therefore the
view of the Court that impairment or loss of these four categories of environmental
goods and services has occurred and is a direct consequence of Nicaragua’s activities
(Certain Activities 2018, para. 75).

5 Due diligence

It is quite clear that due diligence-based standards of conduct on the part of the State are
absolutely central to any determination of the normative content of the no-harm rule and,
in turn, to the question of State responsibility for its breach. However, these same standards
can be understood as being abstract, elusive and in flux (Duvic-Paoli 2018). “Due dili-
gence” is generally employed in international law to denote a notionally similar standard
of care required in a range of diverse contexts. According to one comprehensive study, the
concept
is concerned with supplying a standard of care against which fault can be assessed. It
is a standard of reasonableness, of reasonable care, that seeks to take account of the
consequences of wrongful conduct and the extent to which such consequences could
feasibly have been avoided (ILA Study Group 2016).
Aside from its inherent flexibility, the due diligence standard allows States a degree
of autonomy, which coheres with ideas of sovereign discretion and might generally be
expected to encourage wider participation in treaty and customary regimes (ILA Study
Group 2016). Of course, the open-ended nature of standards of due diligence also offers
convenience, obviating the need to agree precise international rules, which might prove
very difficult in practice, and may even prove premature where State practice and prac-
ticable standards are still evolving. Koskenniemi views due diligence as ‘a technique of
proceduralisation, deferring controversial inquiries as to the content of substantive rules
regulating wrongdoing to less controversial questions relating to informed decision-making
and process’ (Koskenniemi 1989; ILA Study Group 2016). More generally in this regard,

13
 Author's personal copy
The current state of development of the no significant harm…

Koskenniemi notes the prevalence of ‘contextual determinants … in respect of rules of

State responsibility and especially the customary standard of due diligence’, the recent use
of which he associates with ‘the search for equitableness [which] has affected the law on,
for example, natural resources’ (Koskenniemi 1989). This search for ‘equitableness’ might
be regarded as the defining characteristic of international water law.

5.1 Generally applicable standards

In its 2001 Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities, the ILC identifies a general duty of prevention, comprising a due diligence obli-
gation on the State of origin to take all reasonable preventive and/or mitigating measures.
Draft Article 3 provides that ‘[t]he State of origin shall take all appropriate measures to
prevent significant transboundary harm or at any event to minimize the risk thereof’ and
reflects general State practice, particularly practice in the field of international environ-
mental law (ILA Study Group 2014). Referring expressly to Draft Article 7 of the Com-
mission’s 1994 Draft Articles on the Law of the Non-Navigational Uses of International
Watercourses (ILC 1994), the Commentary to Draft Article 3 provides a very clear account
of the normative nature of this firmly established customary obligation:
The obligation of the State of origin to take preventive or minimization measures
is one of due diligence. It is the conduct of the State of origin that will determine
whether the State has complied with its obligation under the present articles. The
duty of due diligence involved, however, is not intended to guarantee that significant
harm be totally prevented, if it is not possible to do so. In that eventuality, the State
… [must] exert its best possible efforts to minimize the risk. In this sense, it does not
guarantee that the harm would not occur (ILC 2001b Draft Articles on Prevention).
This understanding of the nature of the duty to prevent is entirely consistent with the posi-
tion put forward in the UN Watercourses Convention, and generally considered to be reflec-
tive of customary international water law, whereby prevention is secondary to, and subor-
dinated to, the overarching cardinal principle of international water law, that of equitable
and reasonable utilisation. Therefore, where a particular use of shared water resources rep-
resents the most equitable and reasonable allocation of the benefits deriving therefrom hav-
ing regard to all relevant circumstances, any resulting harm to another watercourse State
may have to be tolerated, though every effort should be made to minimize such harm and
appropriate compensation might be due to the injured State [UN Watercourses Convention,
Article 7(2)].
According to the ILA Study Group on Due Diligence, ‘“[r]easonableness” is a golden
thread in determining which measures States should take to act in a duly diligent man-
ner’ (ILA Study Group 2016), and one commentator describes due diligence as ‘a flexible
reasonableness standard adaptable to particular facts and circumstances’ (Barnidge 2006).
Bearing in mind that Article 5(1) of the UN Watercourses Convention, which can safely be
assumed to embody the cardinal rule informing all normative requirements of customary
international water law, requires watercourse States to ‘utilize an international watercourse
in an equitable and reasonable manner’, it is instructive that the highly regarded User’s
Guide to the Convention advises that,
In determining what constitutes a reasonable use, the “reasonable man” test can be
applied to create an objective standard against which conduct can be measured …
Reasonableness … encompasses the contemporary conception of rationality and

13
 Author's personal copy
O. McIntyre

takes factors like the stage of development of a state into consideration (Rieu-Clarke
et al. 2012).
The User’s Guide proceeds to shed some light on the functional interrelationship between
the opaque requirements of reasonableness and equity, at least in the context of inter-
national water law, by explaining that ‘even if a use of an international watercourse has
been identified as reasonable, it might still be challenged when compared with other uses
through the lens of equity’.
Closely linked to the general standard of reasonableness is the expectation of “good
government”, which suggests that the due diligence standard expected would involve
‘the reasonable measures of prevention which a well-administered government could be
expected to exercise under similar circumstances’ (ILA Study Group 2016). Of course the
reasonableness of any such expectation would be qualified to some degree by consideration
of the State of origin’s level of development. In turn, the linked notions of good govern-
ment and level of development are connected to the degree of effective control which a
State of origin is in a position to exercise over its territory and over non-State actors operat-
ing therein.
The Commentary to ILC Draft Article 3 on Prevention provides some broad guidance
on the normative parameters of ‘[a]n obligation of due diligence as the standard basis for
the protection of the environment from harm’, advising, for example, that it requires poli-
cies which ‘are expressed in legislation and administrative regulations and implemented
through various enforcement mechanisms’ (ILC 2001b Draft Articles on Prevention). Con-
sistent with the Alabama Case (Alabama Claims Arbitration, 1872); however, it makes it
quite clear that the required standard of due diligence has its basis in international law,
rather than in national legislation, advising that ‘it imposes an obligation on the State of
origin to adopt and implement national legislation incorporating accepted international
standards’. The State of origin is expected to put in place appropriate ‘administrative,
financial and monitoring mechanisms’, requiring that it should have in place a system for
the prior authorization of relevant activities and that it should play an active role in their
regulation (ILC Draft Articles 6 and 7 on Prevention). Another aspect of due diligence
requires that natural or juridical persons at ‘risk of significant transboundary harm’ should
enjoy access to justice in the State of origin, unless the States concerned have agreed on
alternative means of redress (ILC Draft Article 15 on Prevention).
The Commentary also links Draft Article 3 to Draft Articles 9 and 10, which require
inter-State consultation on the preventive measures to be adopted, having regard to the
need to achieve an equitable balancing of the interests of the States concerned. In a man-
ner strongly reminiscent of the international water law principle of equitable and reason-
able utilization [UN Watercourses Convention, Article 6(1)], Draft Article 10 provides
an open-ended list of factors relevant to such equitable balancing of States’ interests.
These include: the degree of risk of significant harm (including harm to the environ-
ment) and the availability of means for its prevention or minimization; the economic
and social importance of the harmful activity in question; the extent to which either
State might contribute to the costs of prevention; the economic viability of the activity
in question having regard to the costs of prevention (and the availability of alternatives);
and the standards of prevention otherwise applied by the affected State. Highlighting the
obvious parallels with the principle of equitable and reasonable utilization as articulated
in the UN Watercourses Convention, the Commentary to Draft Article 10 on Prevention
explains that this provision ‘draws its inspiration from article 6 of the Convention on the
Law of the Non-navigational Uses of International Watercourses’. It further illustrates

13
 Author's personal copy
The current state of development of the no significant harm…

the factors set out in Draft Article 10 by referring to corresponding international water
law cases (Donauversinkung Case 1927) and conventions (1976 Convention on the Pro-
tection of the Rhine against Pollution from Chlorides and 1994 Additional Protocol;
1973 Agreement on the Permanent and Definitive Solution to the International Problem
of the Salinity of the Colorado River). A similar list of factors, relevant to determination
of the due diligence standards expected of States under the obligation of prevention,
control and reduction in transboundary impact set out in Article 2 of the UNECE Water
Convention, is provided in official guidance (UNECE 2013, para. 65).
The Commentary to Draft Article 3 on Prevention further suggests that the duty to
prevent only applies to harm that is reasonably foreseeable, stating that ‘[i]n general,
in the context of prevention, a State of origin does not bear the risk of unforeseeable
consequences to States likely to be affected by activities within the scope of these arti-
cles’. However, the Commission also advises that the obligation to ‘take all appropriate
measures … extends to taking appropriate measures to identify activities which involve
such a risk’. More generally as regards a State of origin’s duty to ensure that it is ade-
quately informed, the Commentary provides that ‘due diligence is manifested in rea-
sonable efforts by a State to inform itself of factual and legal components that relate
foreseeably to a contemplated procedure and to take appropriate measures, in timely
fashion, to address them’. In addition, the Commentary invokes the precautionary prin-
ciple as articulated in Principle 15 of the Rio Declaration, explaining that preventive
measures taken under Article 3 ‘could involve, inter alia, taking such measures as are
appropriate by way of abundant caution, even if full scientific certainty does not exist,
to avoid or prevent serious or irreversible damage’. In discussing the risk of harm to the
environment as a factor involved in the equitable balancing of interests when identify-
ing appropriate preventive measures, the Commentary to Draft Article 10 on Prevention
also emphasizes the relevance of the precautionary approach. The ILA Study Group on
Due Diligence explains, as regards the due diligence conduct of a State of origin under
the no-harm rule, that an injured State must demonstrate ‘that the State has not put in
place the legislative and regulatory framework which would have enabled it to become
aware of the risk, to measure its probability and gravity, and to take measures aimed
at preventing the harm’ (ILA Study Group 2014). Clearly, measures requiring EIA of
potentially harmful projects and activities and facilitating effective ongoing inter-State
exchange of relevant water-related data and information have a central role to play
in discharging a watercourse State’s due diligence obligations under international water
law.
In each environmental context in which the concept of due diligence is employed in
international law, a number of variable factors may dictate to some extent the standard
of care expected of a State of origin. The key factor is that of the degree of risk and
hazard involved, to which the degree of care to be exercised should be proportional.
According to the ILC Commentary to Draft Article 3 on Prevention, ‘activities which
may be considered ultrahazardous require a much higher standard of care in designing
policies and a much higher degree of vigour on the part of the State to enforce them’.
The operation of this factor is elaborated upon somewhat in Draft Article 10(a) and (c),
which require, in the identification of appropriate preventive measures, a balancing of
the degree of risk of significant transboundary (environmental) harm against the avail-
ability of means of preventing or minimizing such risk and the possibility of repairing
the harm or restoring the environment. The ILA Study Group also stresses the relative
importance of the hazard involved, concluding:

13
 Author's personal copy
O. McIntyre

In international environmental law, a higher standard of care is required when inher-

ently hazardous activities are undertaken; here, the degree of diligence varies in light
of the level of risk. Advances in scientific understanding and technological capabili-
ties can also increase the degree of care required over time (ILA Study Group 2016).
The other key factor to be taken into account in determining whether a State has exer-
cised adequate due diligence is that of the State’s degree of economic development and its
related governance and technical capacity (Trail Smelter Arbitration 1941). The Commen-
tary to Draft Article 3 explains that
It is, however, understood that the degree of care expected of a State with a well-
developed economy and human and material resources and with highly evolved
systems and structures of governance is different from States which are not so well
placed.
While this approach reflects the principle of common but differentiated responsibilities set
out in Principle 3 of the Rio Declaration as a cornerstone of the sustainable development
paradigm, it remains clear that an economically underdeveloped State lacking such capac-
ity is not exempt from its obligations under the no-harm rule. In every case ‘vigilance,
employment of infrastructure and monitoring of hazardous activities in the territory of the
State, which is a natural attribute of any Government, are expected’ (ILC 2001b Draft Arti-
cles on Prevention). The capacity of the State of origin might be particularly relevant in
taking appropriate preventive measures on the basis of the precautionary principle (ILC
2001b Draft Articles on Prevention). The Seabed Disputes Chamber of the International
Tribunal of the Law of the Sea has confirmed that precautionary measures envisaged under
Rio Principle 15 must be applied by States ‘according to their capabilities’, though it also
found that ‘[t]he reference to different capabilities in the Rio Declaration does not, how-
ever, apply to the obligation to follow “best environmental practices”’ where these are set
out in an applicable measure (ITLOS, Seabed Mining Advisory Opinion 2011, para. 131).
The UNECE Water Convention exemplifies such a measure, with Article 3(1) requiring
application of the best available technology for wastewater discharges and reduction in
nutrient inputs from industrial and municipal sources.

5.2 Context‑specific standards

In its 2011 Advisory Opinion, the ITLOS Seabed Disputes Chamber succinctly outlines
the ‘variable’ character of due diligence obligations, such as the no-ham rule:
The content of “due diligence” obligations may not easily be described in precise
terms. Among the factors that make such a description difficult is the fact that “due
diligence” is a variable concept. It may change over time as measures considered suf-
ficiently diligent at a certain moment may become not diligent enough in light, for
instance, of new scientific or technological knowledge. It may also change in relation
to the risks involved in the activity (ITLOS, Seabed Mining Advisory Opinion 2011,
para. 117).
Therefore, while the ILC has developed authoritative secondary rules on the scope of a
State’s international legal obligation to prevent transboundary harm, and of that State’s
responsibility for breach thereof (ILC, 2001b Draft Articles on Prevention; ILC, 2001a
Draft Articles on Responsibility), ‘it is to primary rules of conduct, rather than second-
ary rules of responsibility, that we must look to determine the applicable standard of

13
 Author's personal copy
The current state of development of the no significant harm…

behavior’ (ILA Study Group 2014). However, similar primary rules might have different
normative implications in specific sectoral contexts. Despite understandable concerns
regarding normative fragmentation over divergences in the sectoral application of due
diligence standards (ILA Study Group 2014), there is no inherent contradiction between
the very general standard of due diligence articulated in the Corfu Channel Case and the
more specific manifestations required in particular sub-branches of international law,
such as international environmental or water resources law (ILA Study Group 2014).
In this regard, the ILC Commentary to the Draft Articles on Prevention expressly
refers to provisions of a number of multilateral environmental agreements (MEAs),
from which ‘[a]n obligation of due diligence as the standard basis for the protection of
the environment from harm can be deduced’, and any one of which might in the particu-
lar circumstances ‘constitute a necessary reference point to determine whether measures
adopted are suitable’. Creating a clear link to the practice of international water law,
MEA provisions expressly listed include Article 2(1) of the 1992 UNECE Water Con-
vention. Indirectly relevant provisions listed include Article 2(1) of the 1991 Conven-
tion on Environmental Impact Assessment in a Transboundary Context, which would
inform EIA-related obligations arising under the Water Convention.
As a particularly environmentally progressive example of the primary rules applying to
shared water resources, the 1992 UNECE Water Convention provides considerable detail
regarding the appropriate measures required ‘to prevent, control and reduce transboundary
impact’, which the official guidance describes as determinative of the due diligence obli-
gation of prevention under the Convention (UNECE 2013, para. 62). Article 2 expressly
stipulates measures for the control of pollution, for ecologically sound and rational water
management, for conservation of water resources, and for conservation and restoration of
ecosystems. It further provides that such measures shall be taken at source, where pos-
sible, and ‘shall not result in a transfer of pollution to other parts of the environment’. In
addition, Article 2 directs that, in taking such measures, the Parties shall be guided by the
precautionary principle, the polluter pays principle and the principle of inter-generational
equity. It requires that the Parties cooperate in this regard ‘in order to develop harmonized
policies, programmes and strategies covering the relevant catchment areas’. Article 3 goes
further still, requiring that ‘the Parties shall develop, adopt, implement … relevant legal,
administrative, economic, financial and technical measures’ for, inter alia, control of pollu-
tion emissions through low- and non-waste technology, licensing and monitoring of point-
source waste water discharges, discharge limits based on best available technology, special
requirements related to the protection of ecosystems, treatment of municipal waste water,
application of best available technology to control nutrient inputs from point and non-point
sources, application of environmental impact assessment, protection of groundwaters, and
contingency planning for accidental pollution. More generally, it requires the setting of
comprehensive emissions limits for discharges and of water-quality objectives and crite-
ria and also that, in so doing, Parties have regard to those industries or hazardous sub-
stances controlled under existing applicable conventions or regulations. Though not quite
as detailed, Article 21 of the UN Watercourses Convention requires States, in preventing,
reducing and controlling pollution of an international watercourse, to take steps to harmo-
nise their policies and to agree joint measures, such as:

(a) Setting joint water quality objectives and criteria;

(b) Establishing techniques and practices to address pollution from point and non-point
sources;

13
 Author's personal copy
O. McIntyre

(c) Establishing lists of substances the introduction of which into the waters of an inter-
national watercourse is to be prohibited, limited, investigated or monitored.

Significantly, Article 20 of the Convention requires that ‘[w]atercourse States shall, indi-
vidually and, where appropriate, jointly, protect and preserve the ecosystems of interna-
tional watercourses’. While these two globally applicable framework water conventions
provide a rich and helpful source of primary rules to inform the due diligence required of
watercourses States under the duty of prevention in general international water law, it is
important to remember that the duty remains one relating to conduct rather than to result,
and that certain variable factors might nevertheless impact upon the standard of conduct
expected in any particular circumstances.

5.3 Substantive and procedural due diligence

In Pulp Mills, the Court elaborated upon both the procedural and substantive aspects of the
duty of prevention, as well as upon the intricate interrelationship between these aspects.
Substantive requirements would include the adoption and effective enforcement of
appropriate domestic legal controls on water abstraction or pollution or on the protection
of the shared watercourse and its related ecosystems. Procedural due diligence includes the
requirements for early notification and consultation and, where necessary, negotiation in
respect of potentially harmful planned projects or uses of international water resources. It
highlighted that each of these requirements could only meaningfully be performed in con-
junction with an EIA of the likely transboundary effects of such projects or uses. The Court
regarded procedural cooperation and substantive rules as ‘intrinsically linked’ functionally
(Pulp Mills case, 2010, para. 68), explaining that
it is by cooperating that the States concerned can jointly manage the risks of dam-
age to the environment that might be created by the plans initiated by one or other
of them, so as to prevent the damage in question, through the performance of both
procedural and substantive obligations … whereas the substantive obligations are
frequently worded in broad terms, the procedural obligations are narrower and more
specific, so as to facilitate the implementation …[of substantive rules] … through a
process of continuous consultation between the parties concerned (Pulp Mills case,
2010, para. 77).
The Court has confirmed the functional interdependence of the substantive and procedural
requirements of international water law in the joined San Juan River cases. It stated:
If the environmental impact assessment confirms that there is a risk of significant
transboundary harm, the State planning to undertake the activity is required, in con-
formity with its due diligence obligation, to notify and consult in good faith with the
potentially affected State, where that is necessary to determine the appropriate meas-
ures to prevent or mitigate that risk (San Juan River cases, 2015, paras. 104 and 168).

5.4 Ecological due diligence

It is generally accepted that ‘[t]he content of the [due diligence] obligation may also change
in line with scientific and technological advances’ (ILA Study Group 2014). At the same
time, one can clearly observe within the practice of international water law and diplomacy

13
 Author's personal copy
The current state of development of the no significant harm…

recent growth in ecological awareness and developments in scientific understand-

ing, a corresponding emphasis in State and treaty practice on the legal obligations of
States regarding the protection and preservation of international watercourse ecosys-
tems, and the emergence of sophisticated methodologies that inform the normative
implications of such obligations (McIntyre 2014, 2018).
Such methodologies include the increasingly detailed parameters for assessing minimum
environmental flows in a shared watercourse (Gooch 2016), which have already facilitated
judicial recognition of a corresponding legal obligation to maintain a minimum environ-
mental flow regime (Kishenganga Arbitration, 2013, para. 454), and the rapidly evolving
ecosystem services concept (Millenium Ecosystem Assessment 2005), which focuses on
the essential natural services furnished by functioning riverine ecosystems and provides
a methodology for the economic and social valuation of natural ecosystems (Rieu-Clarke
and Spray 2013). The ICJ has recently determined for the first time that ‘damage to the
environment, and the consequent impairment or loss of the ability of the environment to
provide goods and services, is compensable under international law’ and proceeded to
assign a monetary value in compensation for four specific classes of ecosystem services
(Certain Activities, 2018, paras. 42 (emphasis added) and paras. 75–87).
Ecosystems obligations are not new in international water law. For example, the 1992
UNECE Water Convention expressly requires Parties to apply ‘the ecosystems approach’
[Article 3(1)(i)] and defines the “transboundary impact”, that the Parties are to ‘take all
appropriate measures to prevent, control and reduce’ [Article 2(1)], to include ‘effects on
human health and safety, flora, fauna, soil, air, water, climate, landscape … or the inter-
action among these factors’ [Article 1(2)]. However, new scientific and methodological
advances will inevitably inform the practical implications of the relevant due diligence
requirements.
Highlighting the flexibility and continuing adaptability of the due diligence concept, the
recent ILA study notes that, ‘as international law develops into new, more complex areas
… due diligence is increasingly viewed as an important tool in responding to such chal-
lenges’ (ILA Study Group 2016). It also notes that ‘[t]he extent of risk or advances in sci-
entific knowledge that allow us to perceive more accurately the extent of risk (either higher
or lower) will also influence the degree of diligence required’. Clearly advances such the
methodological developments outlined above can do much to clarify the precise nature of
the conduct expected of a State of origin under the duty of prevention—not alone in the
specific context of international watercourses, but in terms of environmental harm more
generally.

6 Conclusion

While the flexibility and adaptability required of the duty of prevention, and of the due
diligence standard of State conduct which it implies, inevitability result in some measure
of uncertainty, it must be recognized that this is a problem that characterizes the appli-
cation of all substantive rules across the field of international water law. Such flexibility
and adaptability reflect the fact that no two international river basins are alike in most
important respects, but the resulting normative indeterminacy has deterred watercourse
State from relying upon the duty of prevention in the resolution of water-related disputes.
The dearth of formal findings of State responsibility for breach of the duty of prevention
has compounded the lack of clarity regarding the nature of the due diligence obligations

13
 Author's personal copy
O. McIntyre

expected of watercourse States, thereby further undermining its practical utility as a basis
for the avoidance or negotiated settlement of disputes regarding ever more contested water
resources. This hardly augured well for the role of international water law in addressing
the looming freshwater crisis, ‘the new environmental crisis of the twenty-first century’
(Brown Weiss 2013).
However, the continuing elaboration and recognition of detailed rules, and the devel-
opment of related evaluation and assessment methodologies, regarding the protection of
international watercourse ecosystems and the maintenance of the ecosystem services pro-
vided thereby lend a very welcome a degree of clarity to the relevant primary rules of
international water law, particularly the no-harm rule. This new focus on ecosystems helps
to elucidate and broaden the nature of the environmental harms to which the rule applies,
to clarify the scope and severity of risks posed by certain activities, and to inform calcula-
tion of the economic value of water-related benefits foregone by watercourse States suf-
fering harm. Most significantly, the ongoing development of and formal adoption of cred-
ible technical methodologies for the protection and preservation of watercourse ecosystems
greatly assists in identifying the measures appropriate to prevent, control and reduce sig-
nificant transboundary harm. Clearly, such advances can only serve to shed much-needed
light on the due diligence conduct expected of watercourse States under rejuvenated duty
of prevention lying at the very heart of modern international water law.

References
Barnidge, R. P. (2006). The due diligence principle under international law. International Community Law
Review, 8(1), 81–121.
Brown Weiss, E. (2013). International law for a water-scarce world. Leiden/Boston: Martinus Nijhoff.
Brown Weiss, E., McCaffrey, S. C., Magraw, D. B., Szasz, P. C., & Lutz, R. E. (1998). International envi-
ronmental law and policy. New York: Aspen.
Cassese, A. (2005). International law (2nd ed.). Oxford: Oxford University Press.
Crawford, J. (1999). Revising the draft articles on state responsibility. European Journal of International
Law, 10(2), 435.
Crawford, J. (2007). The international law commission’s articles on state responsibility: Introduction, text
and commentaries. Cambridge: Cambridge University Press.
Crawford, J., & Olleson, S. (2005). The continuing debate on a UN convention on state responsibility. Inter-
national and Comparative Law Quarterly, 54(4), 959.
Dunn, F. S. (1932). The protection of nationals: A study in the application of international law. Baltimore:
The Johns Hopkins Press.
Dupuy, P. M. (1991). Overview of the existing customary legal regime regarding international pollution. In
D. B. Magraw (Ed.), International law and pollution (p. 61). Philadelphia: University of Pennsylvania
Press.
Duvic-Paoli, L. A. (2018). The prevention principle in international environmental law. Cambridge: Cam-
bridge University Press.
Experts Group on Environmental Law of the World Commission on Environment and Development
(EGEL), Munro, R. D., Lammers, J. G. (1987). Environmental protection and sustainable develop-
ment: Legal principles and recommendations. London/Leiden: Graham & Trotman/Martinus Nijhoff.
French, D. (2018). Trail smelter (United States of America v. Canada) (1938 and 1941). In E. Bjorge & C.
Miles (Eds.), Landmark cases in public international law (pp. 159–188). Oxford: Hart.
Fuentes, X. (1998). Sustainable development and the equitable utilization of international watercourses.
British Yearbook of International Law, 69, 119.
Gooch, J. (2016). Protecting ecological integrity in transboundary watercourses: An integrational approach
towards implementing environmental flows. Lund: Lund University.
Handl, G. (1975). Balancing of interests and international liability for the pollution of international water-
courses: Customary principles of law revisited. Canadian Yearbook of International Law, 13, 156.
Hessebruegge, J. A. (2004). The historical development of the doctrines of attribution and due diligence in
international law. New York University Journal of International Law and Politics, 36(2&3), 265.

13
 Author's personal copy
The current state of development of the no significant harm…

International Law Association (ILA). (1966). Helsinki rules on the uses of the waters of international rivers. In
Report of the fifty-second conference (p. 484).
International Law Association (ILA) Study Group on Due Diligence in International Law. (2014). First report.
International Law Association (ILA) Study Group on Due Diligence in International Law. (2016). Second
report.
International Law Commission (ILC). (1988). The law of the non-navigational uses of international water-
courses. Yearbook of the International Law Commission, 2(2), 22–54.
International Law Commission (ILC). (1994). Report of the international law commission on the work of its
forty-sixth session, II(2). Yearbook of the international law commission.
International Law Commission (ILC). (2001a). Articles on responsibility of states for internationally wrongful
acts. Report of the international law commission, 53rd session, UN Doc. A/56/10 (pp. 43–59).
International Law Commission (ILC). (2001b). Articles on the prevention of transboundary harm from hazard-
ous activities. Report of the international law commission, 53rd session, UN Doc. A/56/10 (pp. 148–170).
International Law Commission (ILC). (2006). Principles on the allocation of loss in the case of transbound-
ary harm arising out of hazardous activities. UN GAOR 61st Sess., Supp. No. 10, UN Doc. A/61/10 (pp.
101–182).
Koskenniemi, M. (1989). From apology to utopia: The structure of international legal argument. Cambridge:
Cambridge University Press.
Maljean-Dubois, S. (2011). The making of international law challenging environmental protection. In Y. Ker-
brat & S. Maljean-Dubois (Eds.), The transformation of international environmental law (pp. 25–54).
Pedone/Hart: Paris/Oxford.
McCaffrey, S. C. (2001). The law of international watercourses: Non-navigational uses. Oxford: Oxford Uni-
versity Press.
McIntyre, O. (2007). Environmental protection of international watercourses under international law. Alder-
shot: Ashgate.
McIntyre, O. (2013). The contribution of procedural rules to the environmental protection of transboundary
rivers in light of recent ICJ case law. In L. Boisson de Chazournes, C. Leb, & M. Tignino (Eds.), Interna-
tional law and freshwater: The multiple challenges (p. 239). Cheltenham: Edward Elgar.
McIntyre, O. (2014). The protection of freshwater ecosystems revisited: Towards a common understanding of
the “ecosystems approach” to the protection of transboundary water resources. Review of European, Com-
parative and International Environmental Law, 23, 88.
McIntyre, O. (2018). Responsibility and liability in international law for damage to transboundary freshwater
resources. In M. Tignino & C. Bréthaut (Eds.), Research handbook on freshwater law and international
relations (pp. 335–366). Cheltenham: Edward Elgar.
Millennium Ecosystem Assessment/World Resources Institute. (2005). Ecosystems and human well-being: Syn-
thesis. Washington, DC: Island Press.
Pisillo Mazzeschi, R. (1991). Forms of international responsibility for environmental harm. In F. Francioni &
T. Scovazzi (Eds.), International responsibility for environmental harm (pp. 15–35). Dordrecht: Graham
& Trotman.
Rieu-Clarke, A., Moynihan, R., & Magsig, B. O. (2012). UN watercourses convention: User’s guide. Dundee:
UNESCO IHP-HELP Centre for Water Law, Policy and Science.
Rieu-Clarke, A., & Spray, C. (2013). Ecosystem services and international water law: Towards a more effective
determination and implementation of equity. Potchefstroom Electronic Law Journal, 16, 12–65.
Rio Declaration, Report of the United Nations Conference on Environment and Development, Rio de Janeiro
(3–14 June 1992).
Stephens, T. (2009). International courts and environmental protection. Cambridge: Cambridge University
Press.
Stockholm Declaration, Report of the United Nations Conference on the Human Environment, Stockholm
(5–16 June 1972).
UNECE, Guide to Implementing the Water Convention, UN Doc. ECE/MP.WAT/39 (2013).
Wolfrum, R. (1990). Purposes and principles of international environmental law. German Yearbook of Interna-
tional Environmental Law, 33, 308.

Cases

Streitsache des Landes Wurttemburg und des Landes Preussen gegen das Land Baden (Wurttemburg and
Prussia v. Prussia), betreffend die Donauversinkung, Garman Staatsgerichtshof, 18 June 1927 (Donau-
versinkung Case).
Trail Smelter Arbitration (US v. Canada), (1941) 3 RIAA 1911.

13
 Author's personal copy
O. McIntyre

International Court of Justice (ICJ) (1949). Corfu Channel (United Kingdom v. Albania), Merits, Judgment,
ICJ Reports 1949.
Lac Lanoux Arbitration (France v. Spain), Award of 16 November 1957, (1957) ILR 101.
International Court of Justice (ICJ) (1996). Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, ICJ Reports 1996 (I).
International Court of Justice (ICJ). (1997). Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/
Slovakia), Judgment, ICJ Reports 1997
International Court of Justice (ICJ). (2010). Case Concerning Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Judgment, ICJ Reports 2010.
International Tribunal of the Law of the Sea (ITLOS) Seabed Dispute Chamber, Responsibilities and Obli-
gations of States Sponsoring Persons and Entities with Respect to Activities in the Area (ITLOS Case
No. 17, Advisory Opinion, 1 February 2011).
International Court of Justice (ICJ). (2015). Certain Activities Carried Out by Nicaragua in the Border Area
(Costa Rica v. Nigaragua)/Construction of a Road in Costa Rica Along the San Juan River, Judgment,
16 December 2015.
Permanent Court of Arbitration, Indus Waters Kishenganga Arbitration (Pakistan v. India). (2013). Partial
Award, 18 February 2013.
International Court of Justice (ICJ), Certain Activities Carried Out by Nicaragua in the Border Area (Costa
Rica v. Nicaragua), Compensation Judgment, 2 February 2018.

International conventions

Convention on the Protection of the Rhine against Pollution from Chlorides (3 December 1976) 16 ILM
265, and 1991 Additional Protocol (25 September 1991), UNTS 1994 UNTS 423.
Agreement on the Permanent and Definitive Solution to the International Problem of the Salinity of the
Colorado River (30 August 1973), 12 ILM 1105.
UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (17
March 1992) 31 ILM 1312.
Treaty of Peace between Israel and Jordan (26 October 1994) 34 ILM 43.
Agreement on Cooperation for the Sustainable Development of the Mekong River basin (5 April 1995) 34
ILM 864.
UN Convention on the Law of the Non-Navigational Uses of International Watercourses (21 May 1997) 36
ILM 700.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and
institutional affiliations.

13
View publication stats