River Adudu is long river whose source is situated in the territory of State A.

It flows from State

A to the sea through the territory of State B. A factory owned by Mr. Rabu, a State A national,
operates on the bank of River Boboya, which is a tributary of River Adudu. River Boboya is
situated in the territory of State A entirely. The factory discharged toxic wastes which killed all
fish and most living creatures in River Boboya. A few months later, the toxic wastes began to
enter and pollute River Adudu. The pollution has damaged Seri Wetlands which is a peat swamp
area adjacent to River Adudu. Seri Wetlands is a nesting sanctuary for many species of migratory
birds. The birds will stop over in Seri Wetlands in the winter to nest before they migrate to North
Korea in the summer. Now, the pollution from the same toxic wastes has entered the territory of
State B and ruined freshwater fish farms owned by State B's nationals. State A is a party to all
multilateral environmental agreements. Discuss the following issues
(i) The regime applicable to River Adudu and River Boboya,

(ii) Obligations under customary international law owed by State A arising from the pollution
of River Boboya and River Adudu,

(iii) Obligations under multilateral international environmental agreements owed by State A

arising from the pollution of River Boboya and River Adudu,

(iv) Obligations owed by State A with regards to conversation of natural resources,

(v) Liability borne by State A for the environmental damage despite the factory being owned
by a private person.
Draft answer:

Customary International Law as according to Article 38(1)(b) of Statute of ICJ is defined as

“international custom, as evidence of a general practice accepted as law”. The provision clearly
stated two essential elements of customary international law, I.e state practice and opinio juris.
Customary International Law must be practiced generally and consistently by a significant
number of states, besides being accepted by states as a law.

First and foremost, obligations under customary international law owed by State A arising from
the pollution of River Boboya and River Adudu is Principle of Good Neighbourliness, that is
no state is entitled to use its land in a way that might infringe on the rights of another nation. The
doctrine of "good neighbourliness" can be seen in the case of Trail Smelter Arbitration.

In this case, it was alleged that sulfur dioxide fumes from a smelter located in Trail, British Columbia,
were causing damage to farmland and crops in the neighbouring State of Washington. The initial
complaint was brought in 1926. After many years of intense bilateral negotiations between the United
States and Canada, the government of Canada accepted liability and agreed to arbitrate the issue of
damages. In its 1941 decision, the arbitration panel wrote: “Under the principles of international law, as
well as U.S. 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 [state] or the properties or persons therein, when
the case is of serious consequence and the injury is established by clear and convincing evidence.”

In current question, State A under the Principle of Good Neighbourliness, has no right to use or permit the
use of its territory I.e River Boboya and River Adudu in the manner that likely to cause injury in
the form of pollution to State B. It was proven in facts of the case that factory which operates on
the bank of River Boboya (which in State A territory), discharged toxic wastes and damaged Seri
Wetlands which is a peat swamp area adjacent to River Adudu which flows from State A to the
sea through the territory of State B. The pollution from the same toxic wastes has entered the
territory of State B and ruined freshwater fish farms owned by State B's nationals. Hence, by
referring to the case of Trail Smelter Arbitration, State A is responsible for the pollution in
River Adudu and River Boboya and State B can seek damages from State A Reference: Articles:
“A Primer On International Environmental Law: Sustainability As A Principle Of International”
 The next principle is the equitable or reasonable utilization of shared resources. The
principle of equitable and reasonable utilisation is the cornerstone of the UN Watercourses
Convention and the fundamental doctrine guiding water-sharing for international watercourses. It
entitles a watercourse State to an equitable and reasonable share of the uses and benefits of the
particular watercourse, and also creates the reciprocal obligation not to deprive other States of
their respective rights in this regard. This principle, as codified under Article 5(1) of the
Convention, aims to reconcile conflicting interests across international borders, so as to “provide
the maximum benefit to each State from the uses of the waters with the minimum detriment to
each”.
This principle has been promulgated in the River Oder case where in this case, the treaty
of Versailles established an international commission to rework international regulations
pertaining to the Oder river and its tributaries. Poland disagreed with the commission's assertion
of jurisdiction over two tributaries within polish territory because the tributaries were found to be
"navigable" and to "naturally provide more than one state with access to the sea," the court held
that jurisdiction extended to navigable tributaries within Polish territory. The Permanent Court
of International Justice set the standard for the operation of the rule of equitable use of shared
resources by stating: "this Community of interest (of riparian states) in a navigable river becomes
the basis of a common legal right, the essential features of which are the perfect equality of all
riparian states in the use of the whole course of the river." This important principle was
emphasized by its inclusion in the Helsinki Rules. In fact, Article lV of the Helsinki Rules stated
that “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."
For the application in the current situation, first of all we must know what is reciprocal
obligation and respective rights. In law, a reciprocal obligation, also known as a reciprocal
agreement is a duty owed by one individual to another and vice versa. It is a type of agreement
that bears upon or binds two parties in an equal manner. Respective rights in this situation is a
right to enjoy the river and its resources. So, based on the situation given, State A has abused the
right for other states to enjoy the river as we can see that the toxic waste that has been disposed
by the factory from State A has cause the pollution that damaged the peat swamp area that
belongs to Wetlands and also ruined the freshwater fish farms that owned by state B’s national.

The fourth principle of customary international law is a duty to inform and cooperate by giving
prior notice under certain circumstances. When there are two or more states sharing a lake or river each
party has an obligation to inform the other parties about how they are planning on using the lake or river,
whether to exploit the resources in there or to use it as a transportation. Thus, the other parties can be
aware of what is happening. In the Chernobyl Incident 1986 where an explosion of nuclear reactor that
affected vast of lands and neighbouring countries. It was mentioned that the country's obligations to
notify harm to other countries are in range. This does not only apply to nuclear related but also anything
that is hazardous including pollution. Apart from that in the case of Corful Channel (1946), where 2
British warships were damaged while traveling through the Corful Channel. The International Court of
Justice held that although the mines were not placed by the Albanian but by Germany during World War
II since the channel is a part of territorial Albanian water, so they should have at least some knowledge
about the mines and should try preventing the disaster.
In the Rio Declaration on Environment and Development, the Precautionary Principle 1992 was
also laid out. This principle arises when an activity raises threats of harm to human health or the
environment, precautionary measures should be taken even if some cause and effect relationship are not
fully established scientifically. In other words, Precautionary Principle took place when there is an
uncertainty or suspicion that certain activity will harm the environment. In the Lake Lanoux Arbitration
(1957), the lake is internationally shared between Spain and France. Pollution took place in the lake and
one of them failed to take into account the interest of Spain. This case also indicates that the states have
failed to take precautionary action before the pollution incident happened. In the international law there
is a concept of– Sovereign right over natural resources. If one possesses a territory and has natural
resources (water, mineral) thus all the rights to exploit those resources will fall to the possessor of the
territory. However, if those resources are in an international watercourse or international lake then they
will have to share the resources. When sharing and using those waters or lakes, each state has to take into
account the interest of other countries who are also entitled to the resources.
In the current situation, while each states enjoys sovereign control of the waters of an
international watercourse within its borders, it may not exercise such control without taking into account
on the effect upon other riparian states which share the same watercourse in other words the watercourse
states are obliged to utilise international watercourse in a reasonable and equitable manner. State A does
not have the right to use River Boboya in such manner to cause injury to states B and the citizen and
based on the Rio Declaration States A has an obligation to take precautionary action when they want to
use the river and they should have foreseen the pollution that can possibly happen.
The Polluter’s pay Principle has also been reaffirmed in the 1992 Rio Declaration and
was adopted for accidents involving hazardous substances as referred to the Recommendation by
OECD 1989. The Polluter Pays Principle (PPP) is essentially a principle directed to the
internalization of environmental costs. The main basis of this slogan is 'If you make a mess, it's
your duty to clean it up'.
The Polluter Pays Principles (PPP) is a commonly accepted practice in which those who
pollute the environment should bear the costs of managing it to prevent damage to human health
or the environment. According to Convention on Protection & Use of Transboundary
Watercourses (1992), State Parties must take all appropriate measures to prevent adverse effects
on the environment resulting from change of conditions of transboundary waters caused by
human activity.
 By applying this principle in the situation, state A must take a prevention and control
measure towards the activity which causes damage towards the environment. Here, state A must
take all appropriate measures to prevent adverse effects on the environment resulting from
discharge of the toxic wastes from the factory which damaged River Boboya and the freshwater
fish farms owned by State B's nationals.

In the case of Indian Council for Enviro-Legal Action v Union of India17, the polluter
pays principle was applied for the first time in India. The Court tried to define the polluter pays
principle and its scope. Justice Dalveer Bhandari & Justice H.L. Dattu said, “The polluter pays
principle demands that the financial costs of preventing or remedying the damage caused by
pollution should lie with the undertakings which cause the pollution or produce the goods which
cause the pollution. Under the principle, it is not the role of government to meet the costs
involved in either prevention of such damage, or in carrying out remedial action, because the
effect of this would be to shift the financial burden of the pollution incident to the taxpayer.