Water as a Public Good - Assignment Example

Name: University: Instructor: Date: Water Question One During the creation of the UN Watercourses Convention, there was lengthy debate as well as discussion about the substantive principle that must take priority; that of no significant harm or the equitable and reasonable use. Basically, the principle of equitable and reasonable use is the basis of the UN Watercourses Convention and the main rule that guides international watercourses’ sharing. Watercourse State is entitled by the principle to an equitable as well as reasonable share of the benefits ad uses of certain watercourse. The principle also generates a reciprocal obligation, whereby other States should not be deprive of their rights. The Article 5(1) of the Convention codifies this principle with the goal of reconciling interests that are at variance across international borders and offer the maximum benefit to all States from water utilisation with less harm. Utilising the equitable and reasonable use principle in a certain watercourse cannot prohibit a use that brings about damage unless it surpasses the confines of utilising State’s the watercourse equitable share. Equitable use is overseen by the principle of sovereign watercourse utilisation that stipulates all riparian States have a right to utilisation of watercourse. Still, this should not be confused for the right to equally share the benefits and uses; and also does not connote that water itself should be divided into equal shares. Imperatively, equity has been identified by the principle of equitable and reasonable use as a broader umbrella through which the reasonableness concept becomes relative. The multi-dimensional utilisation of international lakes and rivers has been classified into non-navigational and navigational uses for legal purposes. This distinction exhibits the emergence of a separate set of international rules that regulates both uses. According to Salman (625), navigational uses are considered to be more important than the non-navigational uses; therefore, getting an agreement on rules that regulates such uses was relatively easier. No-harm principle is clarified and codified by Article 7 of the UN Watercourses Convention. According to this obligation, States that use u international watercourse within their territories must take every suitable measure so as to prevent any harm that could be caused on other watercourse States. No-harm principle is derived from the limited territorial sovereignty theory, which states that every watercourse State has an equal right to using shared watercourse, but other States sovereignty to equal rights of use must be respected. Basically, no-harm principle is accepted widely as the basis for international watercourses law as well as the Convention. The principle emphasises that every state along the international watercourse should not use the watercourse within its territory in a manner that bring about considerable harm to the environment or other watercourse States. In this case, States are not allowed to use watercourses in a way that negatively affects human safety or health, or the watercourse systems’ living organisms for beneficial purposes. As mentioned by Salman (626), this principle is recognised widely and has been integrated into the contemporary transboundary water agreements as well as in the international environmental law. Therefore, complying with Article 7 does not rely solely on the caused harm, but instead it is determined by the State’s reasonable behaviour based on preventative conduct so as to avoid the harm. Question Two Equidistance Equidistance has been defined by the 1958 Territorial Sea Convention as the line every point that is in between from the baselines nearest points through which the territorial sea breadth of the two States is measured. Basically, the utilisation of equidistance methods relies on the baselines alongside the respective States’ coasts whose areas around the offshore are to be delimitated through the boundary. Still, there are some challenges in case one State decides to employ the normal baselines, following the coasts’ sinuosities and the other state use a system of straight baseline that connects the outermost rocks, promontories and islands. According to Dundua (16), equidistance line method is utilised in the majority of agreements regarding the delimitation of the maritime. Regardless of its diminishing role, equidistance has found its way into the practice of the State. Most maritime delimitation bilateral treaties are using line based on modified or simplified equidistance. Single maritime boundary Since the surfacing of exclusive economic zone (EEZ) doctrine, many States have started adopting a single maritime boundary with the goal of dividing their maritime zones afar the territorial. For adjacent coasts, a line is drawn for the first 12 nautical miles seaward from the coast with the intention of separating the two States’ territorial waters. Basically, the single maritime boundary recourse is backed by the similar character and parallelism between the EEZ as well as the CS close to 200 nautical miles. Imperatively, the criterion for 200 nautical mile distance as stated by 1982 LOS Convention governs the legal title attribution to both the CS and the EEZ in areas where the continental margin covers almost 200 nautical miles. Perpendicular Line This method has been utilised in a number of cases by International Court of Justice (ICJ) and is also utilised in the State Practice. Utilisation of this method is prevalent in the instances of adjacent States, whereby more or less straight coasts are presented. This method is almost similar to the equidistance line method. Perpendicular Line method normally results in a result that is mutually acceptable when the coast is relatively straight at the point of land frontier termination and the coastline general direction is rather simple to determine. In these form of delimitation, the baselines locations are important in finding the general direction. 4. Proportionality The proportionality concept according to Dundua (43) plays a crucial role in different domains of the sea law and international law, particularly in the maritime delimitation. The proportionality concept considers all judgments associated with maritime delimitation. According to proportionality method, watercourses boundary delimitation must be effected by taking into account the ratio between the CS and water areas related to all parties as well as their respective coastlines’ length. Therefore, the tribunals as well as Courts must exactly calculate or estimate roughly, the relevant coastlines lengths and contrast that ratio to that of the water and CS areas, which are provisionally delimited. In a number of ICJ cases, the use of proportionality method has resulted in conflicts. Still, the method is effective in testing that the outcome is not inequitable. Question Three According to Smith (291) if water is viewed as product under GATT, then it should be subjected to trade disciplines of the regime, which includes two that may restrict the ability of the State to regulate the export; thus, the enduring water management. According to Article I, the State according any favour, advantage, immunity or privilege to all products predestined for a specific country have to unconditionally as well as immediately accord similar benefit to products predestined for every member of WTO. Under GATT, if water is a product it will be considered a good under the NAFTA (North American Free Trade Agreement) and can be subjected to the rigorous disciplines of the regime. As cited by Smith (292), there are some arguments that oppose or support subjecting water into the GATT's disciplines. The goal of WTO to allow for the optimum utilisation of world's resources according to sustainable development objective is associated much with water as other resources. Akin to other resources, water possesses an economic value, which influences its transfer among and within countries and may be exploited in accordance with the comparative advantage principle. Water as mentioned by Smith (292) may be subjected to measures depicted as and motivated by some combination of environmentalism and protectionism. The GATT offers a model for defending comparative advantage while construing an environmental and economic elements measure. Still, this model as mentioned by Smith (298) is dominated and imperfect by trade voices and values. Using GATT's tribunals, disciplines, and priorities to water according to Smith (293) may reduce the finality and flexibility, which is exercised by States in their waters long-term management. Presently, water is recognizably considered to be a public good. Still, regulation of distribution and transportation of water has been covered by a treaty of WTO known as the General Agreement on Trade in Services (GATS), though drinking water utilities regulation are still afar the agreement scope. States have subscribed to an agreement comporting with the public-ownership unanimity as enshrined in international as well as municipal law. Therefore, a state that interprets GATT or a WTO tribunal can consider this consensus in offering meaning to the ‘product’, which is a comprehensive term that has not been defined by the treaty. Without a doubt, water is unique mainly because of its unique world’s status. Furthermore, water has a unique status in both the international and municipal law. GATT interpretation in terms of this public-ownership agreement points out that water is independently not a product. Besides that, all States should start acting in their role as trustee or sovereign so as to determine the moment when water is changed to a product from a resource. Therefore, GATT must not impede states from limiting water export. Works Cited Dundua, Nugzar. Delimitation of maritime boundaries between adjacent States. Thesis. Brisbane: University of Queensland, 2007. Salman, Salman M. A. "The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law." Water Resources Development 23.4 (2007): 625–640. Smith, Bryant W. "Water as a Public Good: The Status of Water Under the General Agreement on Tariffs and Trade." Cardozo Journal of International and Comparative Law 17 (2009): 291-314. Read More