7.

RIVER BOUNDARIES AND INTERNATIONAL LAW

INTRODUCTION

Rivers have frequently been employed as an objectively identifiable and typi-

cally stable delineation of an international boundary between riparian states; the
Rio Grande, the Danube and the River Uruguay provide, for example, relative
certainty in identifying the limits of national sovereignty. The use of rivers to
establish international boundaries is usually reflected in treaties concluded between
states, sometimes after armed conflict or judicial or arbitral resolution and, more
usually, after peaceful negotiations. Thirty-seven bilateral and multilateral river
boundary treaties, listed by the International Boundaries Research Unit, have, for
example, been negotiated between 1763 (a Peace Treaty between Great Britain,
France and Spain) and 1975 (a Protocol between Iran and Iraq).
River boundaries, convenient though they have been in fostering good neigh-
bourly relations between territorial sovereigns, attract special legal problems.
The obvious limitation of rivers as boundaries is that water is transitory. The
paradox inherent in conceiving of water flowing between two states as a territo-
rial boundary is that the passage of the water is necessarily temporary, while
sovereignty imports the notion of permanence. Commentators have readily
accepted the idea of transplanting the traditional concept of territorial sovereignty
to rivers as international boundaries. Contemporary concerns are, however, to
protect the environment and conserve water resources suggesting that states can
no longer enjoy complete autonomy in their use of waters within their territorial
jurisdiction. The Institute of International Law’s Madrid Resolution of 1911, for
example, observed that states with a common river boundary ‘are in a position
of permanent physical dependence on each other which precludes the idea of
the complete autonomy of each State in the section of the natural watercourse
under its sovereignty’ (cited in McCaffrey 2001:68).
Throughout the twentieth century and in the early years of the twenty-first,
international tribunals have developed principles for shared water resources such
as equitable and reasonable use and the obligation not to cause significant envi-
ronmental harm. A recent indication of how these principles might be enforced in
the future is the request by Argentina in 2006 for the ICJ to indicate provisional
measures in the Case Concerning Pulp Mills on the River Uruguay (Argentina v.
Uruguay) (Orders of 13 July, 2006 and 23 January, 2007). This request turned
216 Chapter 7

upon whether the construction of the pulp mills presented an ‘imminent threat
of irreparable damage to the aquatic environment’ of the River Uruguay. While
the Court considered that there was no such threat at the time, and the case has
yet to be finally determined, the reasoning of the tribunal confirms the obliga-
tions to protect the ecosystems of shared river boundaries while also allowing
for sustainable economic development.
This chapter examines state practices in delineating river boundaries, typically
through the negotiation of bilateral treaties. Efforts by international bodies, such
as the International Law Commission, the Institute of International Law and
the International Law Association, to develop guidelines for the management
of river boundaries, are also considered as precedents for the conclusion of the
framework 1997 United Nations Convention on the Non-Navigational Uses of
International Watercourses.
While the principal concern of this work lies with the delimitation of territo-
rial boundaries, the particular legal issues raised by river boundaries warrant
consideration of the evolving principles of international law regulating the use
of shared water resources. This chapter provides some international case stud-
ies to illustrate the kinds of disputes that have been submitted for resolution by
international courts and tribunals. The jurisprudence arising from these cases is
examined to distil the international principles of equitable and reasonable use
of international watercourses.

1. PRINCIPLES OF DELINEATION OF A RIVER BOUNDARY

State practice is that those negotiating river boundaries have selected one of three
principal means of locating the exact boundary:
• Geographic middle of the river or medium filum acquae
• Middle of the channel or thalweg
• Shore or bank of the river.

1.1 Geographic middle

Hugo Grotius, the Dutch jurist, is credited with identifying the boundary by
using the geographic middle of the river; that is, the boundary is determined
by drawing a median line, every point of which is equidistant from the nearest
points on the opposite shores. As Grotius (1625: vol. 2, book 2, ch. 2, section
18) observed, ‘In case of any doubt, the jurisdictions on each side reach to the
middle of the river that runs betwixt them’.