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Fresh Water in International Law
Fresh Water
in International Law
Second Edition
L AU R E N C E B O I S S O N D E C HA Z OU R N E S
1
3
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Preface to the Second Edition
This book is the result of a long process. The second edition updates and broadens
its scope even further. Fresh water has for many years been a topic of profound
interest to me in the course of my activities as an academic and a practitioner.
Studying the treatment of fresh water in international law makes one aware of
the complexity involved in the law’s protection and management of this natural
resource, and of the way in which different bodies of science (earth sciences, hy-
drology, engineering, meteorology, agronomy, biology, and others) exert their in-
fluence on it. International law is an important tool in this respect but even its role
cannot be defined in the singular. Indeed, various bodies of norms are applicable
and have left their mark on the role and modalities of international law as regards
fresh water: territorial and boundary regimes, economic law, environmental law,
human rights, law of international organizations, etc. The real issue is the consist-
ency and the coherence in the interpretation and application of these sets of norms.
A variety of methods and techniques should give effect to them, allowing each to
be applied in recognition of the vital nature of water for humans and the environ-
ment. The approach adopted in this book is to analyse the origin and scope of the
various bodies of international norms, while emphasizing their interconnected-
ness and necessary adaptation to one another. This approach is accompanied by a
detailed analysis of the practice of states and of international organizations, all the
while taking into account the activities of the many non-state actors involved in the
area of fresh water. The case law of numerous national and international courts and
tribunals that have engaged with fresh water is also appraised.
My thinking has been stimulated by exchanges I have had with several gener-
ations of students at the University of Geneva, as well as at other universities in
various parts of the world. My work as counsel and adviser to states, international
organizations, and non-state actors, as well as an arbitrator, has also helped me
to better understand the challenges attached to the protection and management
of fresh water. Moreover, I have had the great pleasure of collaborating with doc-
toral students and researchers associated with the Platform for International
Water Law,1 which was launched in 2009 at the Faculty of Law of the University
of Geneva. I would, in particular, like to thank Mara Tignino, Reader at the
University of Geneva’s Faculty of Law, for her work as Lead Legal Specialist of the
Platform, which is one of the components of the Geneva Water Hub,2 and for her
1 http://www.unige.ch/droit/eau/index_en.html.
2 https://www.genevawaterhub.org/.
vi Preface to the Second Edition
collaboration in the many activities we have conducted together. I would also like
to thank Christina Leb, Komlan Sangbana, and Brian McGarry for their research
assistance when preparing the first edition of this book. Moreover, I express my
deep appreciation to Jason Rudall for his great help with research on certain issues
and work on the linguistic editing of the manuscript.
Finally, I am greatly indebted to all, including those mentioned above, who have
accompanied me on the fascinating intellectual journey that was the writing of this
book, now in its second edition.
Laurence Boisson de Chazournes
Geneva, September 2020
Contents
List of Abbreviations xi
Selected Cases xv
1. Introduction: Fresh Water and Its Features 1

I. Water challenges: a contextual overview 1
II. The finite character of water 4
III. Water opportunities: a disciplinary inquiry 6
2. Regulation of Fresh Water Uses: Evolution, Scope, and
Developments 8
I. Introduction 8
II. International watercourses and their uses 9
A. International watercourses and boundary delimitation 10
B. International watercourses and navigation 17
C. International watercourses and fishing activities 21
D. International watercourses and other uses 25
E. Conflicts of uses and their resolution 28
F. The notions of minimum flow and environmental flow and their
incidence on the uses of watercourses 29
III. Codification and harmonization endeavours in the law applicable to
international watercourses 32
A. The UN Convention on the Law of the Non-navigational Uses of
International Watercourses 1997 33
B. The Helsinki Convention on the Protection and Use of
Transboundary Watercourses and International Lakes 1992 43
IV. Other sources of fresh water and their legal regime 47
A. Transboundary aquifers 49
B. Ice formations 52
C. Atmospheric fresh water 59
V. The regulation of international fresh water resources and its
various dimensions 62
A. The interplay between universal, regional, and basin-specific
instruments 63
B. The legal interactions between universal, regional, and basin-specific
norms 67
3. Economization of the Law Applicable to Fresh Water 69
I. Economic uses and the law applicable to international watercourses 69
A. Navigation and its contours 70
B. Infrastructure along watercourses 81
viii Contents
II. Water, international trade, and investment law 96

A. The progressive emergence of the economic facets of
fresh water 98
B. Fresh water and international trade 103
C. Fresh water and international investment 120
D. International transfers of water and international law 131
E. Concluding remarks 133
4. Environmentalization of the Law Applicable to Fresh Water 136
I. Introduction 136
II. Linkages between fresh water and environmental protection 136
A. Pollution and its impact on fresh water 136
B. Biodiversity and fresh water 138
C. Climate change and fresh water 139
D. Large-scale changes in water resources 143
E. Links between fresh water and the marine environment 144
III. Environmental protection and the law applicable to fresh water 145
A. The central role of principles 146
B. Water agreements concluded prior to the Stockholm Conference
on the Human Environment 149
C. International agreements and instruments adopted after the
Stockholm Conference on the Human Environment 151
D. The role of institutions in fresh water instruments 161
IV. The contribution of multilateral environmental agreements to
the protection and management of fresh water 163
A. Instruments having a universal scope 164
B. Instruments having a regional scope 173
C. The role of treaty bodies 179
V. Environmentalization, responsibility, and compensation 180
VI. Coherence trends and interpretative methods 182
5. Humanization of the Law Applicable to Fresh Water 187
I. Introduction 187
II. Human needs and the law applicable to international
watercourses 188
III. Emergence and recognition of a right to safe drinking water and
sanitation 190
A. Political and legal mobilization 190
B. The effectiveness test in practice 195
IV. The contribution of human rights in the field of access to water
and sanitation: The core components 199
V. The right to water and health, environmental, and cultural
protection 202
A. The right to water and health 202
B. The right to water and environmental and cultural protection 205
Contents ix
VI. Human needs, public participation, and access to water and

sanitation 208
A. The emergence of public participation guarantees in
international law 209
B. Participation guarantees and economic and investment activities 211
VII. Human needs, access to water, and development assistance 216
VIII. Water in times of an armed conflict 219
IX. Individuals and access to remedies 225
X. Concluding remarks 227
6. Institutionalization Trends in Fresh Water Governance 229
I. Introduction 229
II. Basin organizations and commissions 229
A. The evolving profile of basin organizations and commissions 230
B. Basin organizations and commissions as forums for dialogue
and cooperation 232
C. Basin organizations and commissions, dispute resolution, and
the maintenance of international peace and security 235
D. The contribution of basin organizations and commissions to the
development and implementation of international law 240
III. International organizations and institutions 241
A. The United Nations system: environmental protection and fresh
water 241
B. The need for multi-stakeholder partnerships and institutional
cooperation 248
IV. The provision of technical and financial assistance 250
A. The contours and functions of financial and technical assistance 250
B. Non-state entities and technical and financial assistance 253
C. The contribution of technical and financial assistance to respect
for international law 256
V. Concluding remarks 257
7. Dispute Settlement and Fresh Water: Trends, Means,
and Practice 258
I. Introduction 258
II. The multiplicity of dispute settlement mechanisms in
water-related disputes 259
III. Inter-state dispute settlement mechanisms, with a particular
emphasis on judicial means 261
A. Treaty practice and codification endeavours 261
B. Resort to the PCIJ and ICJ 266
C. Inter-state arbitration 274
D. Trade dispute settlement mechanisms and other specialized
procedures 277
E. Intervention of a third party, negotiations, and negotiated
settlement 281
x Contents
IV. Non-state actors and water disputes 284

A. Investor-state dispute settlement mechanisms: the ICSID and the
NAFTA experiences 284
B. Human rights procedures and water-related disputes 293
C. Other dispute settlement procedures 302
D. The contribution of compliance mechanisms 309
V. Dispute settlement and issues of interpretation and development in
the law applicable to fresh water 315
VI. Concluding remarks 320
8. Looking Ahead: Trends and Prospects 323
Selected Bibliography 327

Index 331
List of Abbreviations
ABC Abyei Boundaries Commission

ACP African, Caribbean, and Pacific States
AsDB Asian Development Bank
BIT bilateral investment treaty
BOT build-operate-transfer contract
C&SF Central & Southern Florida Project
CARU Comisión Administradora del Río Uruguay (Administrative Commission for
the River Uruguay)
CBD Convention on Biological Diversity
CCAI Climate Change and Adaptation Initiative
CCD Convention to Combat Desertification
CETA Comprehensive Economic and Trade Agreement
CFC Chlorofluorocarbon
CHH Common heritage of humankind
CITES Convention on International Trade in Endangered Species of Wild Fauna
and Flora
CJEU Court of Justice of the European Union
CMS Convention on Migratory Species of Wild Animals
COHRE Centre on Housing Rights and Evictions
COP Conference of the Parties
CPC central product classification
CPTPP Comprehensive and Progressive Agreement for Trans-Pacific Partnership
CPWC Co-operative Programme on Water and Climate
CTE Committee on Trade and Environment
DSU Dispute Settlement Understanding (WTO)
EBRD European Bank for Reconstruction and Development
ECCAS Economic Community of Central African States
ECHR European Convention on Human Rights
ECOSOC United Nations Economic and Social Council
ECtHR European Court of Human Rights
EEZ exclusive economic zone
EIA environmental impact assessment
ENMOD Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques Convention
EU European Union
FAO Food and Agriculture Organization
FTA free trade agreement
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
xii List of Abbreviations
GEF Global Environment Facility

GLAAS UN Water Global Analysis and Assessment of Sanitation and
Drinking-Water
HCFC Hydrochlorofluorocarbon
HGA host government agreement
HRC Human Rights Committee
HS harmonized system
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICPDR International Commission for the Protection of the Danube River
ICSID International Centre for Settlement of Investment Disputes
ICTY International Criminal Tribunal for the former Yugoslavia
IDB Inter-American Development Bank
IDI Institut de droit international
IFAD International Fund for Agricultural Development
IFC International Finance Corporation
IFIs international financial institutions
IHP International Hydrological Programme
IISD International Institute for Sustainable Development
IJC International Joint Commission
ILA International Law Association
ILC International Law Commission
INBO International Network of Basin Organizations
IPCC Intergovernmental Panel on Climate Change
IUCN International Union for Conservation of Nature
IWRM integrated water resources management
JNA Yugoslav Peoples’ Army
LHWP Lesotho Highlands Water Project
MAB Programme UNESCO’s Programme on Man and the Biosphere
MDGs Millennium Development Goals
MEA multilateral environmental agreement
MERCOSUR Southern Common Market
MPIA Multi-Party Interim Appeal Arrangement (WTO)
MTBE methyl tertiary butyl ether
NAFTA North American Free Trade Agreement
NBI Nile Basin Initiative
NGO non-governmental organization
OCHA United Nations Office for the Co-ordination of Humanitarian Affairs
ODA official development assistance
OECD Organisation for Economic Co-operation and Development
OHCHR United Nations Office of the High Commissioner for Human Rights
OMVS Organisation pour la mise en valeur du fleuve Sénégal
OP operational policy
PCA Permanent Court of Arbitration
List of Abbreviations xiii
PCIJ Permanent Court of International Justice

POPs persistent organic pollutants
PPMs process and production methods
RGDIP Revue générale de droit international public
Rio+20 United Nations Conference on Sustainable Development (2012)
SAB Great Lakes Science Advisory Board
SADC Southern African Development Community
SDGs Sustainable Development Goals
SEA strategic environmental assessment
SFWMD South Florida Water Management District
SNSF Swiss National Science Foundation
SOGED Agence de gestion et d’exploitation du barrage de Diama
SOGEM Société de gestion de l’énergie de Manantali
SPLM/A Sudan People’s Liberation Movement/Army
SPS WTO Agreement on the Application of Sanitary and Phytosanitary Measures
TBT Technical Barriers to Trade Agreement
TEIA transboundary environmental impact assessment
TPP Trans-Pacific Partnership
UN United Nations
UNDP United Nations Development Programme
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNFCCC United Nations Framework Convention on Climate Change
UNICEF United Nations Children’s Fund
UNIDO United Nations Industrial Development Organization
UNOPS United Nations Office for Project Services
UNTS United Nations Treaty Series
US United States
USACE US Army Corps of Engineers
USMCA United States–Mexico–Canada Agreement
VOC volatile organic compound
WASH water, sanitation, and hygiene strategy
WBIP Word Bank Inspection Panel
WHO World Health Organization
WMDP Water Management and Development Project
WQB Great Lakes Water Quality Board
WSSCC Water Supply and Sanitation Collaborative Council
WTO World Trade Organization
WWAP World Water Assessment Programme
WWF World Wide Fund for Nature
YBILC Yearbook of International Law Commission
Selected Cases*
PERMANENT COURT OF INTERNATIONAL JUSTICE

Case Relating to the Territorial Jurisdiction of the International Commission of the Oder
River, PCIJ, Series A No 23 1929 ��20–21, 27, 70, 73n.18,
231, 266, 276, 315–16
Diversion of Water from the Meuse (Netherlands v. Belgium), PCIJ,
Series A/B No 70 1937��267–68
Jurisdiction of the European Commission of the Danube Between Galatz and
Braila, Advisory Opinion, PCIJ, Series B No 14 1927��231, 268
The Oscar Chinn Case (Britain v. Belgium), PCIJ, Series A/B No 63 1947�� 21, 70, 73n.18,
75n.27, 268
INTERNATIONAL COURT OF JUSTICE

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), Compensation, Judgment, ICJ Reports 2018, 15�� 147–48, 181, 271, 321
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, 665 �� 143n.46,
154–55, 181, 271, 317, 321
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ
Reports 2009, 213��24, 71–72, 74–75, 78, 78n.53, 79n.57,
79n.59, 80n.68, 182–83, 194n.41, 273–74, 316
Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005, 90��15–16, 271, 272–73
Frontier Dispute (Burkina Faso/Niger), Judgment,
ICJ Reports 2013, 44�� 12, 13, 14–15, 271
Gabčíkovo–Nagymaros Project (Hungary v. Slovakia), Judgment,
ICJ Reports 1997, 7��27, 30, 36, 84, 92–93, 147n.69, 183,
189–90, 268–69, 276n.99, 315, 317
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, ICJ Reports 1999, 1045��11–13,
17–18, 24, 189–90, 271, 283
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, ICJ Reports 2002, 303 �� 17, 237–39, 271
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, 136�� 220
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures,
Order of 13 July 2006, ICJ Reports 2006, 113�� 270n.66
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures,
Order of 23 January 2007, ICJ Reports 2007, 3�� 319
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment,
ICJ Reports 2010, 14��89–91, 146n.66, 147n.69, 148–49,
154–55, 184–85, 214n.149, 229n.1, 233–34,
236, 241–42, 317, 319, 321
* Cases are listed in alphabetical order.

xvi Selected Cases
PERMANENT COURT OF ARBITRATION

Case concerning the audit of accounts between the Netherlands and France in application of
the Protocol of 25 September 1991 Additional to the Convention for the Protection of the
Rhine from Pollution by Chlorides of 3 December 1976 (2004) 25 RIAA 267�� 146n.63,
259n.3, 264n.38, 275–76, 315
Faber Case (Germany/Venezuela) (1903) 10 RIAA 466 �� 71
Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award,
18 February 2013, PCA Case No. 2011-01�� 30–31, 92, 184–85, 276–77
Indus Waters Kishenganga Arbitration (Pakistan v. India), Final Award, 20 December 2013,
PCA Case No. 2011-01��30–31, 184–85, 237–38n.42, 276–77, 282
Lake Lanoux Arbitration (France/Spain) (1957) 12 RIAA 281�� 26, 29–30, 85–86, 91,
154, 188n.6, 274–75
The Gut Dam Arbitration (United States/Canada) (1968) 8 ILM 118�� 283
Trail Smelter Arbitration (United States/Canada) (1938, 1941) 3 RIAA 1905 �� 275n.93
INVESTOR-S TATE ARBITRATIONS

Azurix Corporation v. Argentina, ICSID Case No. ARB/01/12, Award,
14 July 2006��121n.295, 123–24, 127,
211–12, 285–86, 287
Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Award, 7
February 2017�� 181–82, 321–22n.350
Metalclad v. United Mexican States, NAFTA/UNCITRAL, ICSID
Case No. ARB(AF)/97/1, Award, 30 August 2000�� 124
Methanex v. United States, NAFTA/UNCITRAL, Final Award on Jurisdiction and Merits, 3
August 2005��102n.210, 128–29, 211n.142, 212,
213, 260n.8, 291–92
Parkerings-Compagniet v. Lithuania, ICSID Case No. ARB/05/8, Award,
11 September 2007 �� 98
Perenco Ecuador Ltd. v. The Republic of Ecuador and Empresa Estatal Petróleos
del Eduador (Petroecuador), ICSID Case No. ARB/08/6, Interim Award,
11 August 2015��181–82
Perenco Ecuador Ltd. v. Republic of Ecuador and Empresa Estatal Petróleos
del Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Final Award,
27 September 2019 �� 102n.210, 181–82, 321–22n.350
SAUR International v. Argentina, ICSID Case No. ARB/04/4, Decision on Jurisdiction
and Liability, 6 June 2012�� 121n.295, 127–28, 211n.140, 285–86, 288
SD Myers v. Canada, NAFTA, Partial Award on the Merits, 13 November 2000 ��128–29
United Parcel Services Inc v. Canada, NAFTA/UNCITRAL, UNCT/02/1, Decision of the
Tribunal on Petitions for Intervention and Participation as ‘Amicus Curiae’,
17 October 2001 �� 292
Urbaser v. Argentina, ICSID Case No. ARB/07/26, Award,
8 December 2016�� 101–2, 121n.295, 124–26,
211n.140, 285–86, 288
Zhinvali Development Ltd v. Republic of Georgia, ICSID Case No. ARB/00/1,
Award, 24 January 2003��286–87
WORLD TRADE ORGANIZATION DISPUTE SETTLEMENT BODY

Brazil—Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body,
3 December 2007, WT/DS332/AB/R��134–35
Selected Cases xvii
China—Measures Related to the Exportation of Various Raw Materials, Report of the

Appellate Body, 30 January 2012, WT/DS394/AB/R�� 111
Canada—Certain Measures Affecting the Renewable Energy Generation Sector, Report
of the Appellate Body, 6 May 2013, WT/DS412/AB/R; WT/DS426/AB/R�� 113n.260
EC—Measures Affecting Asbestos and Asbestos-Containing Products,
Report of the Appellate Body, 12 March 2001, WT/DS135/AB/R�� 111n.254, 112
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef,
Report of the Appellate Body, 11 December 2000, WT/DS161/AB/R,
WT/DS169/AB/R�� 112
US—Import Prohibition of Certain Shrimp and Shrimp Products, Report of
the Appellate Body, 12 October 1998, WT/DS58/AB/R��112–13, 320–21
US—Standards for Reformulated and Conventional Gasoline, Report of the Panel,
29 January 1996, WT/DS2/R��111n.254, 112–13
EUROPEAN COURT OF JUSTICE

Case 21/76 Handelskwekerij Bier v. Mines de Potasse d’Alsace
SA [1976] ECR 1735��42n.157, 226n.213
Case C-149/14: Commission v. Hellenic Republic (Directive 91/676/EEC —protection of
waters against pollution caused by nitrates from agricultural sources), Judgment
of 23 April 2015�� 279n.125, 280n.130
Case C-266/99 Commission of the European Communities v. French
Republic [2001] ECR I-2000�� 281n.133
Case C-32/05 Commission of the European Communities v. Grand
Duchy of Luxemburg [2006] ECR I-11349�� 281n.134
Case C-36/98 Spain v. Council of the European Union [2001] ECR I 00779��280–81
Case C-543/16: Commission v. Federal Republic of Germany (Directive 91/676/EEC —
protection of waters against pollution caused by nitrates from agricultural sources),
Judgment of 21 June 2018�� 279n.125, 280n.130
EUROPEAN COURT OF HUMAN RIGHTS

Dubetska and Others v. Ukraine, App. No. 30499/03 [2011] ECHR 256�� 198, 296–97
Dzemyuk v. Ukraine, App. No. 42488/02 [2014] ECHR 894�� 198, 296–97
Kolyadenko and Others v. Russia, App. Nos. 17423/05, 20534/05, 20678/05,
23263/05, 24283/05 and 35673/05 [2012] ECHR 338�� 296
Tătar v. Romania, App. No. 67021/01 [2009] ECHR 61�� 198, 214, 226–27, 228n.223,
260n.9, 296–97, 317
Zander v. Sweden, Series A No 279, [1993] 18 EHRR 175�� 296
INTER-A MERICAN COURT OF HUMAN RIGHTS

Comunidad indigena Sawhoyamaxa v. Paraguay, I/A Court H.R.
Series C No. 146, 29 March 2006��197n.57, 297–98
Comunidad indigena Yakye Axa v. Paraguay, I/A Court H.R. Series
C No. 125, 17 June 2005 ��197n.57, 227n.220, 297–98
Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina
I/A Court H.R. Series C No. 400, 6 February 2020��206–7, 227n.221, 299
Xákmok Kásek Indigenous Community v. Paraguay, I/A Court H.R.
Series C No. 214, 24 August 2010�� 197, 202–3, 297, 298
Saramaka People v. Suriname, I/A Court H.R. Series C No. 172, 28 November 2007�� 198,
227n.220, 298, 316–17
xviii Selected Cases
The Environment and Human Rights (State Obligations in Relation to the

Environment in the Context of the Protection and Guarantee of the Rights to
Life and to Personal Integrity –Interpretation and Scope of Articles 4(1) and 5(1)
of the American Convention on Human Rights), Advisory Opinion OC-23/17,
Inter-Am. Ct. H.R. (ser. A) No. 23, 15 November 2017 �� 194–95, 206, 317
AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf
of Endorois Welfare Council) v. Kenya, Case No 276/03, (2009) �� 198, 210–11, 301–2
Sudan Human Rights Organization and Centre on Housing and Evictions
Rights v. Sudan, Case No 279/03-269/05, (2009)��203, 219–20, 302n.260
The Social and Economic Rights Action Center and the Center for Economic and
Social Rights v. Nigeria, Case No 155-96, (2001)�� 301
UNITED NATIONS HUMAN RIGHTS COMMITTEE

Apirana Mahuika et al. v. New Zealand, Comm. No. 547/1992, CCPR/C/70/D/547/1993,
17 October 2000 �� 294
Ilmari Länsman et al. v. Finland, Comm. No. 511/1992, CCPR/C/52/D/511/1992,
26 October 1994 �� 31
Portillo Cáceres v. Paraguay, Comm. No. 2751/2016, CCPR/C/126/D/2751/2016,
9 August 2019 ��193n.35, 321n.349
1
Introduction: Fresh Water and Its Features
I. Water challenges: a contextual overview
The protection and management of fresh water is high on the international agenda.
The Sustainable Development Goals (SDGs), and particularly SDG 6, exemplify
this.1 Badly designed policies and inadequate infrastructure mean that millions of
people around the world die from a scarce water supply, sanitation, and hygiene.2
Moreover, a lack of fresh water and poor sanitation lead to food insecurity, lower
standards of living, and hinder children’s education.3 Further still, water insecurity
is a growing cause of conflict around the world and water shortages—exacerbated
by climate change, urbanization, and population growth—can lead to grave ten-
sions between countries.4
In this context, the emerging recognition of a right to water and sanitation (also
referred to as the right to water) is a source of much promise. Endeavours in the
management of international watercourses are also bearing fruit through the con-
clusion of agreements and the strengthening of basin commissions and organ-
izations. Further still, the importance of cooperation in water governance to help
maintain peace and security is gaining credence.5 However, despite the develop-
ments made in respect of access to water and water resources management, there
remain significant challenges. Indeed, water is neither an inexhaustible resource
nor a valueless good in economic terms. This is in spite of the fact that our planet’s
surface is more than three-quarters covered by water. However, the largest portion
1 United Nations General Assembly Resolution A/RES/70/1, ‘Transforming Our World: The 2030
Agenda for Sustainable Development’ (25 September 2015).

2 United Nations Sustainable Development Goals, ‘6: Clean Water and Sanitation’ (2020) [website],
https://www.un.org/sustainabledevelopment/water-and-sanitation/.
3 Ibid.
4 M. Zeitoun, N. Mirumachi, and J. Warner, Water Conflicts: Analysis for Transformation (Oxford
University Press, 2020); J. Vivekananda, ‘Climate Change, Conflict and Crisis in Lake Chad’ 30(2)
(2018) The European –Security and Defence Union 23; K. Eklöw and F. Krampe, ‘Climate Related
Security Risks and Peacebuilding in Somalia’ SIPRI Policy Paper No 53 (October 2019); K. Conca and
E. Weinthal (eds), The Oxford Handbook of Water Politics and Policy (Oxford University Press, 2018);
World Economic Forum, The Global Risks Report 2019 (14th edn, WEF, 2019), 7.
5 See the Global High-level Panel on Water and Peace, which was established in 2015 and submitted
its report and recommendations in September 2017: Report of the Global High-level Panel on Water and
Peace, A Matter of Survival (Geneva Water Hub, 2017), https://www.genevawaterhub.org/sites/default/
files/atoms/files/a_matter_of_survival_www.pdf; for the actions taken on the basis of the recommenda-
tions, see Geneva Water Hub, ‘Global High-level Panel on Water and Peace –Secretariat’ [website],
https://www.genevawaterhub.org/resource/global-high-level-panel-water-and-peace-secretariat-0.
2 Introduction: Fresh Water and Its Features
of accessible water—around 98% of it6—is neither suitable for human consump-

tion nor fit for use in agricultural or industrial activities as a result of its salinity
or frozen state. Fresh water resources, ie waters in which the salt content is lower
than 3 grams per litre, represent only 2.53% of overall global water resources. Over
two-thirds of these fresh water resources (68.7%) are frozen in the polar ice caps,
continental ice sheets, and alpine glaciers. Liquid fresh water is primarily found
underground (30.1%), whereas surface water in lakes and rivers (0.26%) and at-
mospheric water content (0.04%) represent only a small volume of overall fresh
water resources.7
Additionally, while the size of the world’s population has tripled since the early
twentieth century, water consumption has increased by a factor of six. Attempts to
increase available water resources through reconstitution processes (particularly
in groundwater storages) have not kept pace with their rate of exploitation. In this
light, water can be viewed as something of a non-renewable resource.
These considerations prompt reflection on the apportionment of water re-
sources among their different uses, but also—even more acutely—on the alloca-
tion of a resource whose geographically uneven distribution8 is a source of tension
and conflict in more than one region of the world.9 In that respect, hurdles stem
from inadequate access to water in nature, demand variation according to different
needs, climate variability, and, finally, socio-economic as well as cultural differ-
ences. A factor of particular concern is the distribution of water resources among
its uses. Water cannot be managed for a single use as it is subject to multiple uses. At
present, land irrigation alone withdraws almost 70% of the available water stock, a
figure in part in line with demographic trends. Second, industrial uses account for
almost 20%, which is likely to grow in the coming years, whereas energy produc-
tion, navigation, human uses, and leisure account for the remaining demands on
water stock.10
6 World Water Assessment Programme, ‘Water for People, Water for Life’, The United Nations
World Water Development Report [online report], 68, http://unesdoc.unesco.org/images/0012/001297/

129726e.pdf.
7 All statistics in this paragraph from ‘Water for People, Water for Life’, Ibid.
8 Thus, some areas would have a greater quantity of water relative to another. See ‘Total Renewable
Freshwater Supply by Country’ (2013 update) in Pacific Institute, The World’s Water: Volumes 7–8
(Island Press, 2013). Electronic version of data table available at http://worldwater.org/wp-content/up-
loads/2013/07/data_table_1_total_renewable_freshwater_supply_by_country.pdf.
9 See, eg, M. Zeitoun, N. Mirumachi, and J. Warner, Water Conflicts: Analysis of Transformation
(Oxford University Press, 2020); A. Swain, Managing Water Conflict: Asia, Africa and the Middle
East (Routledge, 2013); ‘Water for Peace in the Middle East and Southern Africa’ in Green Cross
International, World Water Vision (Green Cross International, 2000); H. Solomon and A. Turton (eds),
Water Wars: Enduring Myth or Impending Reality (Series no 2) (Africa Dialogue Monograph, 2000); T.
Dieu Nguyen, The Mekong River and the Struggle for Indochina: Water, War and Peace (Praeger, 1999);
N. Beschorner, Water and Instability in the Middle East: An Analysis of Environmental, Economic and
Political Factors Influencing Water Management and Water Disputes in the Jordan and Nile Basins and
Tigris-Euphrates Region (Routledge, 2005).
10 For more details on these figures, see eg The United Nations World Water Development Report 2020
(UN Water and UNESCO, 2020). Overall, it is reported that water use has increased by a factor of six
over the last century, and continues to grow each year by about 1%.
Water challenges: a contextual overview 3
Sources of additional concern are the squandering and degradation of water

resources, phenomena that are primarily due to a lack of wastewater and sanita-
tion systems, but also the use of polluting substances.11 Moreover, it is important
to mention the progressive salinization of drainage basins and cultivated lands, as
well as the contamination and overexploitation of groundwaters. Almost half of
European and North American rivers and lakes are so polluted that certain species
belonging to those ecosystems are in danger of extinction.12
In terms of water access, notwithstanding recent achievements, 29% of the
global population still do not have access to safely managed drinking water serv-
ices, and 55% of the world’s population remain without access to safely managed
sanitation services.13 Sanitation and drinking water are, however, essential to
human life, dignity, and development. Moreover, many societies ascribe to water
a cultural function and, at times, even a mystical character. Further still, another
trend warrants consideration: the growing influence exerted at the international
level by a number of new actors, ranging from consumers’ associations to non-
governmental organizations and indigenous populations.14 Such a trend, in fact,
calls for the elaboration of regulatory solutions that satisfy the expectations and
claims advanced by these multiple stakeholders.
These remarks illustrate some of the reasons why building a global system of
regulation for water resources is an intricate and difficult task, but also one that
is not impossible. Overcoming such difficulties is of primordial importance, es-
pecially in respect of international watercourses, the problems of which cannot
but have an impact at the international level. For many states, international water-
courses constitute, in fact, valuable resources and a means of communication fun-
damental for the very survival of their populations.
Around 280 transboundary watercourses serve 40% of the world’s population.
Among these, 180 run through two states, while the remaining 100 cross three
or more states. In the African continent alone there are sixty international water-
courses, eleven of which are shared among four or more riparian states; eleven
states share the Nile River and nine share the Congo River. On the American con-
tinent, the Amazon River is shared between nine countries, whereas six Asian
states share the Mekong River. The Danube River, for its part, has a hydrographic
basin that includes no less than seventeen states.
11 Poor water quality is not the only problem related to water supply and sanitation systems. See
UNICEF and WHO, Progress on Household Drinking Water, Sanitation and Hygiene: Special Focus on
Inequalities 2000-2017 (UNICEF/WHO, 2019), https://data.unicef.org/resources/progress-drinking-
water-sanitation-hygiene-2019/.
12 WWF, World’s Top 10 Rivers at Risk [online report], http://assets.wwf.org.uk/downloads/
worldstop10riversatrisk.pdf.
13 See UNICEF and WHO, Progress on Drinking Water and Sanitation 2000 –2017: Special Focus
on Inequalities (UNICEF/ WHO, June 2019) [electronic report], https://www.unicef.org/reports/

progress-on-drinking-water-sanitation-and-hygiene-2019.
14 See, eg, S. Jentoft, H. Minde, and R. Nilsen (eds), Resources Management and Global Rights
(Eburon, 2003).
II. The finite character of water
A fundamental characteristic of the hydrological cycle15 is that it has no beginning

and no end; hence, the finite character of water on earth. This character can be
understood in two ways depending on whether we want to emphasize the amount
of available water in the hydrosphere or the amount of available fresh water. In
the first case, the finite character describes the fact that there is a fixed amount
of water on earth. Estimates consider that there are approximately 1.386 billion
km3 of water on the planet and in its atmosphere.16 This quantity of water is the
total amount available to us. No human action or any natural change can alter this
amount. It has remained the same for millions of years and is moving around in
a continuous cycle, changing from one physical state to another (solid, liquid, or
vapour/gas), although anthropogenic influences have recently been shown to alter
the balance in the hydrological cycle.17
In the second case, the finite character is reflected by the distribution and
transfer of water between the different water reservoirs that exist. The major res-
ervoirs of water include the atmosphere, oceans, rivers, lakes, soils, glaciers, snow-
fields, and groundwater.18 Water continually moves from one reservoir to another
15 The hydrologist defines the hydrologic cycle as a conceptual model that describes the storage and
movement of water between the biosphere, atmosphere, lithosphere, and hydrosphere. Oceans contain
almost 96.5% of water in the cycle. But this water is not directly useable by humans as a result of its
salinity. The sun, which drives the water cycle, heats the water of the oceans. Some of the heated water
evaporates into the air and rises into the sky. When air is saturated with water vapour, the water vapour
condenses into droplets of water, forming clouds. When the droplets gain enough mass, they fall as
precipitation and 91% of evaporated water falls back into the oceans. The remaining 9% of evaporated
water is transported by the wind over the continents and falls to the ground as snow or rain. The atmos-
pheric water stored constitutes 0.04% of the world’s fresh water resources. At this level, various trends
may be observed. In glacial systems, precipitation becomes ice mass, with glaciers and snowfields repre-
senting almost 68.7% of the planet’s fresh water. This ice mass can sublimate (sublimation is the result of
ice transforming directly from a solid to water vapour without passing through a liquid state) and form
again as water vapour, or can flow on the surface to feed rivers and streams. In vegetation systems, three
processes occur simultaneously. Some of the water that falls as rain does not flow directly as surface
runoff into a river but seeps into the ground. Part of this seepage water is then again drawn up by plants,
which release it back into the atmosphere through the process of evapotranspiration. In areas without
vegetation, eg deserts, this interception does not occur. Water that infiltrates the ground can either flow
into rivers and streams or refill aquifers. Groundwater, a resource that often remains difficult to access,
represents almost 30.1% of fresh water. If precipitation occurs faster than it can infiltrate the ground, it
becomes runoff. Runoff remains on the surface and flows into streams, lakes, and eventually the oceans.
Streams and lakes represent 0.26% of fresh water resources. Most water ultimately finds its way back
into the oceans by way of precipitation, overland flow, stream flow, or groundwater flow. See World
Water Assessment Programme, ‘Water for People, Water for Life’ and J. Hubbart et al, ‘Hydrologic Cycle’
in C. Cleveland (ed), Encyclopedia of Earth (Environmental Information Coalition, National Council
for Science and the Environment, 2011). Electronic version available at https://editors.eol.org/eoearth/
wiki/Hydrologic_cycle.
16 See United States Geological Survey, ‘How Much Water Is There on Earth?’ [website], https://
www.usgs.gov/special-topic/water-science-school/science/how-much-water-there-earth?qt-science_
center_objects=0#qt-science_center_objects.
17 D. Koutsoyiannis, ‘Revisiting the Global Hydrological Cycle: Is It Intensifying?’, Hydrol. Earth Syst.
Sci. Discuss., 20 March 2020, https://doi.org/10.5194/hess-2020-120.

18 G. Stephens et al, ‘Earth’s Water Reservoirs in a Changing Climate’ (2020) Proceedings of the Royal
Society A 476.
The finite character of water 5
by way of evaporation, evapotranspiration, condensation, precipitation, runoff,

interception, infiltration, melting, and groundwater flow.19 This natural process
makes fresh water available for human consumption. However, given that a slim
minority of the Earth’s water resources comprise accessible fresh water, the cap-
acity of those reservoirs is limited.
Fresh water that is readily accessible for human uses is found in lakes and
streams and in underground sources. Any analysis of water resources requires that
the interconnection between all sources of water be taken into consideration.
In this context, global warming is an important factor to take into account.
It will have an impact on hydrological patterns and it may cause an increase
in regional reservoir capacity. A typical example is the melting of glaciers that
would increase the amount of fresh water available in some watercourses and
could contribute to a rise in the sea level.20 The shifting precipitation pattern
and the amplification of trends in surface runoff are other impacts that could
contribute to the modification of water availability and water use.21 In terms
of climate change effects that are detrimental to fresh water access, many of
the world’s most water-deprived areas will become even more water deprived.
Moreover, water flows will be more susceptible to extreme weather events.22 The
development of certain technologies, such as the desalination of seawater and
wastewater collection and treatment and recycling processes, can increase the
amount of fresh water available to humans. Despite the contribution—albeit
limited—that these technologies can make to this endeavour, there are never-
theless economic and environmental considerations and concerns attached to
some of their use.
This hydrological interconnection also exposes the influence that human ac-
tivity has over different parts of water systems.23 For example, a toxic substance
introduced upstream in a watercourse is carried downstream by the flowing water
and finds its way into the sea. In a similar way, air pollution can generate toxic rain.
This polluted rainwater can seep into the ground or flow into streams and lakes,
contaminating drinking water wells located far from the polluting source.
More broadly, water highlights the extent of human interdependence. This inter-
dependence can be seen through fresh water uses, notably with the claim of a right
to water which emanates in particular from the rights to an adequate standard of
19 Ibid.
20 Koutsoyiannis, ‘Revisiting the Global Hydrological Cycle: Is It Intensifying?’, 22.
21 Intergovernmental Panel on Climate Change, Global Warming of 1.5°C: An IPCC Special Report
on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas
emission pathways, in the context of strengthening the global response to the threat of climate change, sus-
tainable development, and efforts to eradicate poverty (IPCC, 2018), B.1.
22 UN News, ‘ “Count Every Drop, Every Drop Counts”: UN Weather Agency Calls for Better Water
Data on World Meteorological Day’ [website], 23 March 2020, https://news.un.org/en/story/2020/03/

1059922.
23 S. McCaffrey, The Law of International Watercourses (3rd edn, Oxford University Press, 2019), 52.
living and highest attainable standard of health,24 as well as the various needs and
claims as expressed in the SDGs.
III. Water opportunities: a disciplinary inquiry
In short, without water, life could not exist; livelihoods depend on ecosystems in
which water is a crucial component.25 It is in this context that fresh water is a fun-
damentally important area of inquiry. Our increasing interactions on an inter-
national level, as well as our dependency on other states in respect of water issues,
bring the need for effective multilateral water governance into sharp focus. In order
to propose effective solutions to the challenges that water presents, it is necessary
to understand that the nature of water governance and use is multifaceted and re-
quires an analysis that takes the various interests involved into account.
The present book analyses fresh water through a variety of lenses, be they regu-
latory trends, economic features, the environment, human rights, international in-
stitutions, and dispute settlement. In so doing, the challenges involved in and the
strains and opportunities for the management and use of fresh water are exposed,
while looking at these various dimensions from an integrated perspective.
Water has always been a vehicle for economic activities and uses, not least
navigation, irrigation, power generation, and water supply. In more recent years,
water has emerged in investment disputes and in international trade debates. This
has both clarified and complicated the economic aspects of water governance,
highlighting also the specific status of water.
Water has moreover become a central feature in environmental protection.
A number of principles relating to the management, protection, and use of water
have emerged in international conventions dealing with environmental protec-
tion. This means that today a variety of obligations are attached to the use of fresh
water. As a result, the number of institutional mechanisms dealing with water is-
sues has also increased.
Similarly, a shift towards human needs is also evident in the broader area of
water governance. Along with public participation in fresh water governance, one
can point to the emergence and consolidation of a right to water. Issues related to
health, the environment, and culture are explored in the context of human needs,
rights, and entitlements, as well as the relatively undeveloped area of water protec-
tion in times of armed conflict.
24 See United Nations Committee on Economic, Social and Cultural Rights, General Comment No
15 (2002), The Right to Water (Arts 11 and 12 of the International Covenant on Economic, Social and
Cultural Rights), E/C.12/2002/11, para 3.
25 UN Water, Climate Change and Water: UN Water Policy Brief (UN Water, September 2019), 7.
Water opportunities: a disciplinary inquiry 7
Institutionalization trends in fresh water governance are also noticeable. The

institutions involved in fresh water management and protection are now varied
in nature. Many of these institutions, particularly basin organizations and com-
missions, are intended to strengthen cooperation among riparian countries.
Furthermore, the matters over which these organizations have competence have
broadened significantly, for example with respect to the protection of the environ-
ment.26 Novel types of institutions have been established with the aim of improving
water governance.
A range of institutions with diplomatic, judicial, and quasi-judicial powers con-
tribute to the protection and management of fresh water. The broad acceptance of
the role of dispute settlement based on the rule of law is a noticeable trend in this
area. This has led, in part, to the increased participation of non-state actors in water
disputes and dispute settlement more generally. This has also contributed to the
clarification and strengthening of applicable norms and principles.
26 See, eg, Rhine 2040—The Rhine and Its Catchment: Sustainably Managed and Climate-resilient,
16th Rhine Ministerial Conference, 13 February 2020, https://www.iksr.org/fileadmin/user_upload/

DKDM/Dokumente/Sonstiges/EN/ot_En_Rhine_2040.pdf. See also International Commission for the
Protection of the Danube River, The Danube River Basin District Management Plan –Part A (ICPDR,
2015), 79.
2
Regulation of Fresh Water Uses
Evolution, Scope, and Developments
I. Introduction
The law applicable to fresh water in its contemporary state dates back to the nine-
teenth century. Initially forged in the European and North American traditions—
primarily through the prism of navigation—this body of international law has
acquired a variety of new characteristics resonant with the diversification of water-
related activities. The scope of its subject matter has, in fact, expanded so as to en-
compass issues of global relevance, ranging from energy production techniques,
irrigation for agricultural purposes, access to drinking water for human consump-
tion, and the preservation of natural and cultural heritage. In parallel, environ-
mental concerns have arisen which, owing to their gravity, are now a priority. It is
also evident that a focus has been placed on international watercourses and, in this
way, considerable efforts have been made to tailor, at the universal, regional, and
basin levels, legal regimes governing their management and protection.
Riparian states in Europe, Asia, Africa, and the Americas have negotiated and
adopted a number of treaties on international watercourses, with attempts at har-
monization prevalent in fora such as the United Nations, the European Union, or
the Southern African Development Community (SADC). These efforts are evi-
dence of the progress made in the management of international watercourses.
Notwithstanding, many aspects require further treatment. For example, there are
numerous international watercourses that do not yet benefit from the protection of
a treaty, with others only partially covered by treaty provisions and many existing
treaties only linking a few riparian countries.1
Besides the uses of international watercourses, other types and sources of fresh
water, such as surface waters, groundwaters, rain, and ice, have been subjected to
regulation in one way or another, while others have not yet received attention.
International law plays a role in protecting and managing international water-
courses and other international sources of fresh water. While the rule of law does
not ultimately provide solutions for water utilization, conservation, or protection
1 See M. Giordano and A. Wolf, ‘The World’s International Freshwater Agreements—Oregon State
University Atlas of International Freshwater Agreements’ [website], http://www.transboundarywaters.

orst.edu/publications/atlas/atlas_html/interagree.html.
International watercourses and their uses 9
issues, it certainly contributes to the means of finding and reaching solutions to

international water problems. Bringing with it stability and predictability, the rule
of law contributes both to the avoidance and settlement of disputes in this area.
In this context, a new normative trend is emerging, that of acknowledging that
rivers and lakes can be recognized as subjects of law and thus be entitled to be pro-
tected. It gives a legal voice to components of the environment for protecting their
own rights and safeguarding the welfare of critical environmental resources. This
can be seen, for example, in the case of the Whanganui River in New Zealand,2 the
Turag River and all other rivers in Bangladesh,3 the Ganges River in India,4 and
Lake Erie in the United States and Canada,5 which have all been recognized as legal
persons. This trend is occurring at the domestic level but it may have implications
at the international level as well. Indeed, the Rio+20 World Summit on Sustainable
Development noted that such rights of nature helped to promote environmental
needs6 while UN General Assembly resolutions have shown a resolve to develop
rights of nature around the world.7
II. International watercourses and their uses
While attempts at regulation are abundant and time-honoured—the oldest dating

back to the period of the ancient Mesopotamian civilization8—most of the ex-
isting regime owes its origins to the sovereignty-driven international practice of
the nineteenth century. Within this context, watercourses became the object of
regulation in connection, first, with territorial delimitation and, subsequently, with
communication-related issues. Later, other uses took their place in this framework.
The corpus iuris pertaining to international watercourses has been constrained
by the difficulties attached to co-existence among sovereign entities, whereby
each state favours its unrestricted use of the resource. In this light, the need for
2 Tutohu Whakatupua, The Crown- Whanganui (2012), www.wrmtb.co.nz/new_updates/

TuutohuWhakatupuaFinalSigned.pdf; Te Awa Tupua Act 2017, http://www.legislation.govt.nz/act/
public/2017/0007/latest/whole.html.
3 See ‘Bangladesh Supreme Court Upholds Rights of Rivers’ (24 August 2020), https://medium.com/
@mari_margil/bangladesh-supreme-court-upholds-rights-of-rivers-ede78568d8aa.
4 See M. Safi, ‘Ganges and Yamuna Rivers Granted Same Legal Rights as Human Beings’,
The Guardian (21 March 2017), https://www.theguardian.com/world/2017/mar/21/

ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings.
5 D. McGraw, ‘Ohio City Votes to Give Lake Erie Personhood Status Over Algae Blooms’,
The Guardian (28 February 2019), https://www.theguardian.com/us-news/2019/feb/28/

toledo-lake-erie-personhood-status-bill-of-rights-algae-bloom.
6 UN General Assembly Resolution of 27 July 2012, The Future We Want, UN Doc A/RES.66/288,
paras 39–40.
7 See, eg, UN General Assembly Resolution of 22 December 2015, Harmony with Nature, UN Doc
A/RES/70/208, Preamble.
8 See, eg, P. Sands, ‘Environmental Dispute Resolution 4,500 Years Ago: The Case of Lagash vs.
Umma’ (2020) Yearbook of International Environmental Law (forthcoming).

10 Regulation of Fresh Water Uses
cooperative regulation has arisen only when, and to the extent that, the interests of
two or more sovereigns have impinged on one another. Contemporary regulation
has attempted to eradicate the vestiges of this traditional logic by introducing more
communitarian concepts to facilitate more effective sharing of resources.9
A. International watercourses and boundary

delimitation
Uses of international watercourses are intrinsically and have for a long time been
linked to boundary delimitation. International rivers and lakes are referred to for
delimiting territories. The method used in this context will have an impact on uses
such as navigation and the generation of hydro-electric energy.
1. A variety of methods

During the nineteenth century, watercourses—used mostly for communication and
fishing—were often taken as a point of reference in boundary delimitation, providing
an almost immutable and readily identifiable separation of territories. The notion of
‘international rivers’ is at the heart of this conception. To date, a systemic—let alone
an ‘ecosystemic’—vision has been absent from this endeavour:10 watercourses are still
predominantly perceived as a line of delimitation between segments of land rather
than as a constituent element of a broader environmental unit.
Traditionally, there are three methods that have been used to delimit territories
having recourse to rivers or lakes.11 The oldest is that of coastal boundaries, identified
by the bank of each of the concerned states or with the bank of only one of two adja-
cent states.12 A second method is that of ‘successive watercourses’, ie watercourses that,
9 J. Brunée and S. Toope, ‘Environmental Security and Fresh- water Resources: A Case for
International Ecosystem Law’ 5 (1994) Yearbook of International Environmental Law 41. More gener-
ally, see E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and
Intergenerational Equity (Transnational Publishers, 1989).
10 On this aspect see, eg, H. Dipla, ‘Les règles de droit international en matière de délimitation
fluviale: remise en question?’ (1985) 89 Revue générale de droit international public 589.
11 See L. Caflisch, ‘Regles générales du droit des cours d’eau internationaux’ 219 (1989/VII) Recueils
des Cours. On the rights of people in this endeavour, see M. Kohen and M. Tignino, ‘Do People have
Rights in Boundaries’ Delimitations?’ in L. Boisson de Chazournes, C. Leb, and M. Tignino (eds),
International Law and Freshwater: The Multiple Challenges (Edward Elgar Publishing, 2013).
12 In the first case, the watercourse itself will be considered as ‘no man’s land’, provided that
the concerned states do not establish a condominium. According to the Dictionnaire de droit inter-
national public, the notion of condominium pertinent to this context is defined as: ‘[s]‌tatut territorial
comportant l’existence sur un même territoire d’une souveraineté indivise entre deux ou plusieurs
Etats . . . L’exemple classique est celui du golfe de Fonseca entre le Honduras, le Nicaragua et El Salvador’.
J. Salmon (ed), Dictionnaire de droit international public (Bruylant, 2001), 229. It should be noted that
this technique has progressively been relinquished in state practice. See L. Caflisch, ‘Regulation of the
Uses of International Watercourses’ in S. Salman and L. Boisson de Chazournes (eds), International
Watercourses—Enhancing Cooperation and Managing Conflict, Technical Report of the World Bank No
414 (World Bank, 1998), 3–16.
instead of dividing, pass through the territory of a number of states. The boundary
drawn according to this method connects the respective terrestrial borders, generally
through a straight line with reference points at the territorial boundaries.
A more complex approach than those mentioned above is that of tracing the
boundaries among contiguous riparian states. Obviously, states have full discretion in
deciding how to fix a boundary; they may, for instance, agree on a certain geographical
point of reference or on given coordinates. Otherwise, the common boundary can be
fixed either according to the geographical thalweg or the median line between the two
banks. The thalweg follows the deepest part of a river channel. This may or may not be
in the middle of the river, but potentially moves from one side of the river to another
as the river meanders. This approach is likely related to the course followed by trading
boats in the colonial era.13 That said, it may be that there are multiple deep channels in
any one river. The main channel may be identified in such a case. Alternatively again,
a median line can be drawn, which involves determining where the equidistant points
between the two banks of the river lie.14
The first method has the merit of easily identifying and guaranteeing access to the
navigable portion of the river for both riparian states. On the other hand, an uneven
distribution may result if the dividing line is closer to one of the two banks.
The Kasikili/Sedudu15 case decided by the International Court of Justice (ICJ) in
1999 offers an example of how rivers can be taken as a point of reference in territorial
delimitation through the thalweg method. In the case, the Court had been asked to: ‘
. . . determine, on the basis of the Anglo-German Treaty of 1 July 1890 and the rules
and principles of international law, the boundary between Namibia and Botswana
around Kasikili/Sedudu Island and the legal status of the island.’16 To accomplish this
task and thereby find the appropriate line of division between the two litigants, the
Court resorted to the thalweg. The relevant passages of the decision read as follows:
21. . . . As far as the region covered by the present case is concerned, this provi-
sion locates the dividing line between the spheres of influence of the contracting
parties in the ‘main channel’ of the River Chobe; however, neither this, nor any
other provision of the Treaty, furnishes criteria enabling that ‘main channel’ to be
identified. It must also be noted that the English version refers to the ‘centre’ of the
13 See M. Pratt (ed), AUBP Guide Book on International River Boundaries, African Union Border
Programme guide books series (forthcoming, 2021), available at http://www.aubis.peaceau.org/en/

page/73-guidebooks-1.
14 Ibid. The median line is defined as the line that is at every point equidistant from the nearest points
of the coastal baselines; a simplified version adopts a sequence of determined points identified through
the equidistance principle and then put together by means of straight lines.
15 See Case Concerning the Kasikili/ Sedudu Island (Botswana v. Namibia), Judgment, [1999] ICJ
Rep 1045.
16 Extract from Art 1 of the Special Agreement (2) between the parties. The text is reproduced in para
2 of the judgment, and is also cited by the Court in para 17.

main channel, while the German version uses the term ‘thalweg’ of that channel
(Thalweg des Hauptlaufes).
...
24. The Court notes that various definitions of the term ‘thalweg’ are found in
treaties delimiting boundaries and that the concepts of the thalweg of a water-
course and the centre of a watercourse are not equivalent. The word ‘thalweg’ has
variously been taken to mean ‘the most suitable channel for navigation’ on the
river, the line ‘determined by the line of deepest soundings’, or ‘the median line of
the main channel followed by boatmen travelling downstream’. Treaties or con-
ventions which define boundaries in watercourses nowadays usually refer to the
thalweg as the boundary when the watercourse is navigable and to the median
line between the two banks when it is not, although it cannot be said that practice
has been fully consistent.
In its Burkina Faso/Mali judgment, the Court appears to have utilized the median line
method, in order to partition the Mare de Soum and the Mare d’In Abeo according to
the uti possidetis principle. It explicitly did so for the Mare de Soum, having recourse to
the maximum area of the pool in order to trace the median line. It seems that the same
method was adopted for the Mare d’In Abeo.17 As was observed, an equal partition on
the surface does not guarantee an equitable distribution of the fresh water resources.18
2. Human needs and boundary delimitation

The human needs linked to an international watercourse can be taken into consider-
ation when a judicial body is asked to identify a border and a strand of practice has in-
deed emerged in this direction. This was the case, for example, in the Kasikili/Sedudu
case, when the Court stressed that the parties should cooperate to avoid hampering
the socio-economic activities routinely performed by the communities of the area. In
the words of the Court:
102. The Court observes, however, that the Kasane Communiqué of 24 May 1992
records that the Presidents of Namibia and Botswana agreed and resolved that:
(c) existing social interaction between the people of Namibia and Botswana
should continue;
(d) the economic activities such as fishing shall continue on the understanding
that fishing nets should not be laid across the river;
(e) navigation should remain unimpeded including free movement of tourists.
[ ... ]
17 See L. Caflisch, ‘Règles générales du droit des cours d’eau internationaux’, 69–71; J.-C. Gautron,
‘Création d’une chambre au sein de la Cour internationale de Justice, mesures et médiation provisoires
dans le différend frontalier entre le Burkina-Faso et le Mali’ 32 (1986) Annuaire français de droit inter-
national 192–214.
18 Frontier Dispute (Burkina Faso/Mali), Judgment, [1986] ICJ Rep 554, para 150.
103. The Court, which by the terms of the Joint Agreement between the Parties
is empowered to determine the legal status of Kasikili/Sedudu Island concludes,
in the light of the above-mentioned provisions of the Kasane Communiqué, and
in particular of its subparagraph (e) and the interpretation of that subparagraph
given before it in this case, that the Parties have undertaken to one another that
there shall be unimpeded navigation for craft of their nationals and flags in
the channels of Kasikili/Sedudu Island. As a result, in the southern channel of
Kasikili/Sedudu Island, the nationals of Namibia, and vessels flying its flag, are
entitled to, and shall enjoy, a treatment equal to that accorded by Botswana to its
own nationals and to vessels flying its own flag. Nationals of the two States, and
vessels, whether flying the flag of Botswana or of Namibia, shall be subject to the
same conditions as regards navigation and environmental protection. In the nor-
thern channel, each Party shall likewise accord the nationals of, and vessels flying
the flag of, the other, equal national treatment.19
These extracts effectively convey the Court’s intention to go beyond the mere con-
cept of a ‘river border’ and to embrace a more complex vision, one which is cog-
nizant of a range of activities—mainly fishing and navigation—essential to the
everyday life of the respective riparian communities. It has been noted that this
dicta of the Court contributed to mitigating the severity of a strict linear demarca-
tion of the border.20
Previously, in his Separate Opinion to the Case Concerning the Frontier Dispute
(Burkina Faso v. Republic of Mali), Judge ad hoc Georges Abi-Saab, while accepting
the conclusions of the Chamber on the limits of the uti possidetis principle, called
for a more generous application of infra legem equity in the interpretation and ap-
plication of the law. His argument relied precisely on the need to take account of the
basic needs of populations, especially given that the issue at stake was the delimi-
tation of ‘pools’ in a desert area where access to water has a crucial importance.21
19 See Case Concerning the Kasikili/ Sedudu Island (Botswana v. Namibia), Judgment [1999] ICJ
Rep 1045.
20 On this point, see also R. Ranjeva, ‘Nouveaux aspects du droit des frontières en Afrique à la
lumière de la jurisprudence de la Cour internationale de Justice’ in L. Boisson de Chazournes and V.

Gowlland-Debbas (eds), L’ordre juridique international, un système en quête d’équité et d’universalité.
Liber amicorum Georges Abi-Saab (Martinus Nijhoff Publishers, 2001), 605.
21 See Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment [1986] ICJ
Rep 554, per Judge ad hoc Georges Abi-Saab (Separate Opinion), para 17, which provides:
The Judgment has chosen a line coinciding with that of the maps, which do not in themselves
constitute a legal title or rest upon any such genuine title . . . This is admittedly one possible
legal solution within the degree of freedom obtaining in the circumstances of the case; and that
is why I consider it legally acceptable. But it is not the only solution which would have been
legally possible, nor in my opinion the best. I would have preferred another one which, while
respecting the points of reference (and it is not by chance that both are watering places), would
have been more deeply impregnated with considerations of equity infra legem in the interpret-
ation and application of the law, given that the region concerned is a nomadic one, subject to
drought, so that access to water is vital.
In its judgment of 16 April 2013,22 the Court, in its choice of a boundary de-
limitation method, provided an interesting and quite innovative perspective on
the consideration of riparian populations’ access to water resources. Human needs
were taken into account in deciding where to draw the boundary delimitation. The
Court stated that:
. . . In this regard, the Court notes that the requirement concerning access to
water resources of all the people living in the riparian villages is better met by a
frontier situated in the river than on one bank or the other.
Accordingly, the Court concludes that, on the basis of the Arrêté, the endpoint
of the frontier line in the region of Bossébangou is located in the River Sirba.
This endpoint is more specifically situated on the median line because, in a non-
navigable river with the characteristics of the Sirba, that line best meets the re-
quirements of legal security inherent in the determination of a boundary.23
As for the application of the uti possidetis rule and the role of equity, the Court said
in the Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali) that:
. . . to resort to the concept of equity in order to modify an established frontier

would be quite unjustified. Especially in the African context, the obvious defi-
ciencies of many frontiers inherited from colonization, from the ethnic, geo-
graphical or administrative standpoint, cannot support an assertion that the
modification of these frontiers, however unsatisfactory they may be, possess the
authority of the uti possidetis and are thus fully in conformity with contemporary
international law.24
However, the Court went on to say that, ‘in the absence of any precise indication of
a delimited frontier, the boundary line could be traced “in an equitable manner” ’.25
Thus, the role of equity in such disputes has been carefully circumscribed, al-
though it still may play a role in certain circumstances.26 Moreover, the Court con-
sidered the relationship between uti possidetis and effectivités, which is also likely to
be relevant where human interests are at stake in delimiting a boundary along an
international watercourse. The Court said:
22 Frontier Dispute (Burkina Faso/Niger), Judgment [2013] ICJ Rep 44.

23 Ibid., para 101.
24 Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment [1986] ICJ Rep
554, para 149.

25 Ibid., para 150.
26 M. Aznar, ‘The Human Factor in Territorial Disputes’ in M. Kohen and M. Hébié (eds), Research
Handbook on Territorial Disputes in International Law (Edward Elgar Publishing, 2018), 328.
It must however state forthwith, in general terms, what legal relationship exists
between such acts and the title on which the implementation of the principle of
uti possedetis is grounded. For this purpose, a distinction must be drawn amongst
several eventualities. Where the act corresponds exactly to law, where effective
administration is additional to the uti possidetis juris, the only role of effectivité is
to confirm the exercise of the right derived from a legal title. Where the act does
not correspond to the law where the territory which is the subject of the dispute
is effectively administered by a state other than the one possessing the legal title,
preference should be given to the holder of the title. In the event that the effectivité
does not co-exist with any legal title, it must invariably be taken into consider-
ation. Finally, there are cases where the legal title is not capable of showing exactly
the territorial expanse to which it relates. The effectivité can then play an essential
role in showing how the title is interpreted in practice.27
Human activities that have been asserted by states as evidence of effectivités include
fishing, hunting, and agriculture, amongst other economic uses.28 In particular,
fishing activities have been relied on to show that states exercise authority over a
certain area. Indeed, fishing activities can play an important role in economic de-
velopment, as well as the income and sustenance of local populations.
Customary rights of local populations may be taken into account even if not
decisive for the identification of a boundary. The Decision Regarding Delimitation
of the Border between the State of Eritrea and the Federal Democratic Republic of
Ethiopia of 13 April 2002 is an example of how continued use and access rights
have been established on customary practice. The Eritrea–Ethiopia Boundary
Commission deciding the issue was of the view that ‘[r]‌egard should be paid to the
customary rights of the local people to have access to the river’.29 Similarly, in the
Frontier Dispute (Benin/Niger) case of the ICJ concerning the boundary delimita-
tion along the Niger and Mekrou rivers, as well as the ownership of several river is-
lands, inhabitants in both states used the waters of the rivers. The Court found that:
The boundary between Benin and Niger follows the main navigable channel of
the River Niger as it existed at the dates of independence, it being understood
that, in the vicinity of the three islands opposite Gaya, the boundary passes to the
left of these islands. Consequently, Benin has title to the islands situated between
27 Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment [1986] ICJ Rep
554, para 63.

28 M. Kohen and M. Tignino, ‘Do People Have Rights in Boundaries’ Delimitations’ in L. Boisson de
Chazournes, C. Leb, and M. Tignino (eds), International Law and Freshwater: The Multiple Challenges
(Edward Elgar Publishing, 2013), 104.
29 Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal
Democratic Republic of Ethiopia of 13 April 2002, 41 ILM 1057.

the boundary thus defined and the right bank of the river and Niger has title to the
islands between that boundary and the left bank of the river.30
That said, it went on to emphasize that this was ‘without prejudice to any private
law rights which may be held in respect of those islands’.31
In a dispute between the Government of Sudan and the Sudan People’s
Liberation Movement/Army (SPLM/A) that was referred to arbitration,32 a tri-
bunal was required by the Arbitration Agreement to determine whether or not the
experts of the Abyei Boundaries Commission (ABC) ‘exceeded their mandate’ in
defining and demarcating certain areas as provided for in the relevant legal instru-
ments.33 The Award resulted in Bahr el Arab (Kiir River), which is the main river
in the area, together with most of its major tributaries, such as the Ragaba ez Zarga
and Ragaba el Shaib, falling largely within the newly delimited area of Abyei. The
grazing and other traditional rights of the Misseriya and Ngok Dinka (who resided
to the north and south of the Abyei Area) were taken into consideration, as the
Award stated that ‘[t]‌he exercise of established traditional rights within or in the
vicinity of the Abyei Area, particularly the right (guaranteed by Section 1.1.3 of
the Abyei Protocol) of the Misseriya and other nomadic peoples to graze cattle and
move across the Abyei Area (as defined in this Award) remains unaffected’.34
In other words, the Tribunal found that, under the relevant principles of inter-
national law as applied to boundary disputes, traditional rights have usually been
deemed to remain unaffected by any territorial delimitation and that the transfer
of sovereignty in the context of a boundary delimitation should not be construed
to extinguish traditional rights to the use of land. Taking into account its mandate
requiring it to delimit ‘on a map’ the boundaries of the Abyei Area, it stressed that
territorial boundaries should not, however, be taken to imply that the parties are
entitled to disregard other territorial relationships that people living in, and in the
vicinity of, the Abyei Area have historically maintained.35
Overall, the case law of the ICJ and other judicial bodies would seem to suggest
that where the title of the territory is clear, human needs or customary rights will
30 Frontier Dispute (Burkina Faso/Niger), Judgment [2013] ICJ Rep 44, para 103.
31 Ibid., para 119.
32 Government of Sudan v. Sudan People’s Liberation Movement/ Army (Abyei Arbitration), Final
Award of the PCA of 22 July 2009. Electronic version available at http://www.pca-cpa.org/showpage.
asp?pag_id=1306.
33 Ibid., paras 2, 395. Article 2(c) of the Arbitration Agreement provides that if the tribunal deter-
mines that the experts ‘exceeded their mandate, it shall make a declaration to that effect, and shall pro-
ceed to define (ie delimit) on map the boundaries of the area’, para 395. On this decision, see W. Miles
and D. Mallett, ‘The Abyei Arbitration and the Use of Arbitration to Resolve Inter-state and Intra-state
Conflicts’ 1(2) (2010) Journal of International Dispute Settlement 313.
34 Government of Sudan v. Sudan People’s Liberation Movement/ Army (Abyei Arbitration), Final
Award of the PCA of 22 July 2009, para 770.
35 Ibid., para 748. In his Dissenting Opinion, however, Judge Al-Khasawneh considered that the
Award did not ‘take the rights of the Misseriya into consideration’, para 203.
not affect that title. However, those customary rights over the resource, particularly
where they are concerned with subsistence, may be preserved. Moreover, where
the title is not clear, equitable considerations, which can include the human uses of
the river, may be taken into account in resolving the dispute. Either way, the Court
is likely to have to protect vital human needs.
Lastly, noteworthy is the type of pathway that was favoured for the consider-
ation of human needs in the boundary delimitation dispute between Cameroon
and Nigeria. Following the decision of the Court in the Nigeria/Cameroon case,36
an agreement was negotiated between the two parties with the assistance of then-
Secretary General Kofi Annan. The agreement that was reached also makes provi-
sion for human needs.37 It reads as follows:
1. Cameroon, after the transfer of authority to it by Nigeria, guarantees to

Nigerian nationals living in the Bakassi Peninsula the exercise of the fundamental
rights and freedoms enshrined in international human rights law and in other
relevant provisions of international law.
In particular, Cameroon shall:
(a) not force Nigerian nationals living in the Bakassi Peninsula to leave the Zone
or to change their nationality;
(b) respect their culture, language and beliefs;
(c) respect their right to continue their agricultural and fishing activities;
(d) protect their property and their customary land rights;
(e) not levy in any discriminatory manner any taxes and other dues on Nigerian
nationals living in the zone; and
(f) take every necessary measure to protect Nigerian nationals living in the zone
from any harassment or harm.
B. International watercourses and navigation
Navigation activities constitute one of the oldest forms of utilizing international

watercourses. In this respect, their regulation has contributed significantly to the
evolution of the law of international watercourses.38 International law first focused
almost exclusively on navigation. The majority of the early treaties at the end of the
eighteenth and of the nineteenth centuries dealt primarily with navigational uses
36 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial
Guinea Intervening), Preliminary Objections [1998] ICJ Rep 275.

37 See Bakassi Peninsula: The Greentree Agreement Between Cameroon and Nigeria, Art
3. Electronic version available at http://www.cameroon-info.net/stories/0,17737,@,greentree-accord-

to-reinforce-icj-verdict.html.
38 L. Caflisch, ‘Règles générales du droit des cours d’eau internationaux’.
and the freedom of navigation on international rivers.39 The regime of freedom

of navigation has evolved over time and differed between continents. As such,
the late nineteenth and early twentieth centuries saw a profound liberalization in
this respect, notably on the European, African, and Asian continents. The prin-
ciple of freedom of navigation gained momentum through the pursuit of colonial
and commercial interests by the European powers in many regions of the world.40
With regard to the American continent, although the regime of freedom of navi-
gation has been consistently asserted, the practice indicates that this principle has
benefited only those vessels flying the flag of riparian states, and this was framed
through a specific legal regime forged by treaties and national legislation.41
The liberal vision on freedom of navigation culminated in the Treaty of Versailles
of 28 June 1919 and the Barcelona Statute on the Regime of Navigable Waterways
of International Concern, adopted under the aegis of the League of Nations on
20 April 1921.42 These two treaties provided for the opening of the waterways of
Europe to all nations. Part of the reason for the limited success of the Barcelona
Statute in achieving universal acceptance, was that it did not effectively combine
the different approaches to the principle of freedom of navigation that had emerged
on different continents and for various river basins into one universal document.43
The liberal interpretation of the principle of freedom of navigation was not ad-
hered to by later agreements. These embraced different concepts of the principle
that varied depending on the region or watercourse they applied to. The advent
of authoritarian regimes in Europe in the 1930s and the Cold War further weak-
ened the liberal interpretation of the principle of freedom of navigation.44 The 1948
39 Ibid., 104–32.
40 The principle of freedom of navigation was of paramount importance to the European Powers,
their colonial expansion, and the development of their commercial activities. The ICJ observed in
the Kasikili/Sedudu Island case ‘that navigation appears to have been a factor in the choice of the con-
tracting powers in delimiting their spheres of influence. The great rivers of Africa traditionally offered
the colonial powers a highway penetrating deep into the African continent’, para 44. See the General
Act of the Berlin Conference, which includes the extension of a liberal regime as regards navigation to
the Congo and Niger rivers. ‘Acte général de la Conférence de Berlin’ in J. Hopf (ed), Recueil général de
traités et autres actes relatifs aux rapports de droit international, Deuxième série, Tome X (Librairie de
Dietrich, 1885), 416–8.
41 J. Barberis, ‘Les règles spécifiques du droit international en Amérique latine’ in 235 Collected
Courses of the Hague Academy of International Law (2008). See also L. Caflisch, ‘Regulation of the Uses
of International Watercourses’, 42.
42 See especially, Final Act of the Congress of Vienna (Vienna, 9 June 1815; 64 CTS (1815) 492), Arts
108–17, containing provisions relating to navigation on the international watercourses of signatory

states. See also Appendix XVI B to the Final Act of the Congress of Vienna, available in C. Parry (ed),
Consolidated Treaty Series (Oceana, 1967), 453. See also Barcelona Statute on the Regime of Navigable
Waterways of International Concern (Barcelona, 20 April 1921; League of Nations Treaty Series VII
(1921) 50), Art 2.
43 See H. R. Fabri, ‘Règles coutumières générales et droit fluvial’ 36 (1990) Annuaire français de droit
international 832. The Barcelona Statute was ratified by twenty states, but India withdrew in 1956; after
1960 ten more states acceded or succeeded to the Statute, four of which were island states. For more
information on ratifications and accessions, see United Nations Treaty Collection [website], https://
treaties.un.org/Pages/LONViewDetails.aspx?src=LON&id=560&chapter=30&clang=_en.
44 L. Caflisch, ‘Règles générales du droit des cours d’eau internationaux’, 42.
Convention Regarding the Regime of Navigation on the Danube restricted the

freedom of navigation on the river to vessels carrying the flags of the riparian states
of Eastern Europe.45 The riparian states of the River Rhine imposed, in parallel,
limitations on the vessels of Eastern European states.46 The end of the Cold War
brought about the end of these restrictions and the recognition of a right to navi-
gate for the benefit of ships of all riparian states.
In other regions of the world, the regime on navigation varies in its contours. In
Africa, the 1972 Convention Relating to the Statute of the Senegal River restricts
the application of the principle of freedom of navigation to ships flying the flags of
contracting states only47 and in Asia the 1995 Agreement on Cooperation for the
Sustainable Development of the Mekong River Basin provides for the application
of this principle to all riparian states parties to the said treaty.48 The navigation
regime on the American continent has been restricted to either riparian coun-
tries49 or contracting parties.50 These examples of international practice serve as a
45 Convention Regarding the Regime of Navigation on the Danube (Belgrade, 18 August 1948;
UNTS 32 (1949) 181), Art 1.

46 Revised Convention for Rhine Navigation (Strasbourg, 17 October 1868), Art 1. Electronic ver-
sion available at http://www.ccr-zkr.org/.

47 Convention Relating to the Status of the Senegal River (Nouakchott, 11 March 1972) in Documents
of African Regional Organizations III (Oceana, 1973). Article 6 reads as follows:

sur les territoires nationaux des Etats contractants, la navigation sur le fleuve Sénégal et ses af-
fluents, qui seront désignés ultérieurement, est entièrement libre et ouverte aux ressortissants,
aux bateaux marchands et marchandises des Etats contractantes, aux bateaux affrétés par un
ou plusieurs Etats contractants, sur un pied d’égalité en ce qui concerne les droits de port et
les taxes sur la navigation commerciale. Les bateaux marchands et navires étrangers, de toute
origine, seront soumis à une réglementation commune qui sera élaborée ultérieurement.
48 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin
(Chiang Rai, 5 April 1995; ILM 34 (1995)). Article 9 of the Agreement reads as follows:
On the basis of equality of right, freedom of navigation shall be accorded throughout the main-
stream of the Mekong River without regard to the territorial boundaries, for transportation
and communication to promote regional cooperation and to satisfactorily implement projects
under this Agreement. The Mekong River shall be kept free from obstructions, measures, con-
duct and actions that might directly or indirectly impair navigability interfere with this right or
permanently make it more difficult. Navigational uses are not assured any priority over other
uses, but will be incorporated into any mainstream project. Riparians may issue regulations for
the portions of the Mekong River within their territories, particularly in sanitary, customs and
immigration matters, police and general security. Though riparian to the Mekong River, China
and Myanmar are not parties to this agreement.
49 See Treaty between Uruguay and Argentina Concerning the Rio de la Plata and the Corresponding
Maritime Boundary (Montevideo, 19 November 1973; ILM 13 (1974)), Art 7, which reads as fol-
lows: ‘Each Party shall, permanently and in all circumstances, recognize the freedom of navigation
throughout the river of vessels flying the other’s flag.’
50 See Amazon Cooperation Treaty (Brasilia, 3 July 1978; UNTS 1202 (1980)), Art 3, which reads as
follows:
In accordance with and without prejudice to the rights granted by unilateral acts, to the pro-
visions of bilateral treaties among the Parties and to the principles and rules of International
Law, the Contracting Parties mutually guarantee, on a reciprocal basis, that there shall be com-
plete freedom of commercial navigation on the Amazon and other international Amazonian
rivers, observing the fiscal and police regulations in force now or in the future within the terri-
tory of each. Such regulations should, insofar as possible, be uniform and favor said navigation
and trade.
reminder of the importance that riparian states in various parts of the world attach
to the principle of freedom of navigation. It needs to be pointed out that this prin-
ciple takes its substance from economic, historical, and political realities that are
specific to each waterway and each region. That said, it should also be highlighted
that in the context of the International Law Association’s Rules, the principle of
freedom of navigation among riparian states is acknowledged as a principle of cus-
tomary international law.51 Scholars have commented on the various instruments
that govern international watercourses as well as state practice in this respect and
are also of the view that a customary law that allows freedom of navigation on
international rivers exists.52 They also point out that this applies to international
rivers but not lakes, and also that it applies to private vessels that fly the flag of a
riparian State.53
To understand the regime of navigation in international law, it is appropriate
to consider on the one hand the actual content of the right of free navigation, and
on the other hand the rules that govern and ensure its implementation in inter-
national practice.
Freedom of navigation is generally understood as a freedom to transport per-
sons or merchandise on international watercourses. Under Article 14(c) of the
Helsinki Rules and as repeated in Article 43(5)(c) of the Berlin Rules,54 the notion
of ‘freedom of navigation’ is defined as: ‘Freedom to transport goods and passen-
gers, directly or through transhipment, between the territory of one riparian State
and the territory of another riparian State and between the territory of a riparian
State and the open sea.’55
The principle entails the freedom of the movement of ships and boats
along the entire course of an international watercourse.56 In this context, the
Permanent Court of International Justice (PCIJ) considered in the Case Relating
51 International Law Association Rules on Water Resources of 2004 (Berlin Rules). Electronic ver-
sion available at http://internationalwaterlaw.org/documents/intldocs/ILA_Berlin_Rules-2004.pdf.

See also Chapter 3 of this book.
52 See, eg, L. Caflisch, ‘Regulation of the Uses of International Watercourses’ in S. Salman and L.
Boisson de Chazournes (eds), International Watercourses—Enhancing Cooperation and Managing

Conflict 15 World Bank Technical Paper No 414 (1998).
53 Ibid.
54 International Law Association Rules on Water Resources of 2004 (Berlin Rules). Electronic ver-
sion available at http://internationalwaterlaw.org/documents/intldocs/ILA_Berlin_Rules-2004.pdf.

55 For example, see the Revised Convention for Rhine Navigation, Art 1(1), which provides that ‘[t]‌he
navigation of the Rhine and its estuaries . . . shall be free to the vessels of all nations for the transport
of merchandise and persons’. See also Convention on the Canalisation of the Moselle (Luxembourg, 27
October 1956), Art 29, which states: ‘Navigation on the Moselle . . . will be free to vessels of all Nations
for towing and transporting goods and people.’ Electronic version available at http://www.legilux.
public.lu/leg/a/archives/1956/0061/a061.pdf#page=1.
56 Three categories of transport can be found in international practice: ‘grand cabotage’, transit, and
‘petit cabotage’. While the first and second are the principal objects of treaties, the third category is
generally reserved for nationals of states. On the various categories of transport, see B. Vitanyi, The
International Regime of River Navigation (Sijthoff and Noordhoff, 1979), 264–5; see also L. Caflisch,
‘Règles générales du droit des cours d’eau internationaux’, 108.
to the Territorial Jurisdiction of the International Commission of the River Oder that
freedom of navigation was an expression of the community of interests that ex-
isted around an international watercourse among riparian countries. According
to the Court, ‘[i]‌f the common legal right is based on the existence of a navigable
waterway separating or traversing several states, it is evident that this common
right extends to the whole navigable course of the river’,57 and as a consequence ‘the
interest of all States is in liberty of navigation in both directions’.58
Other freedoms can be derived from this principle. In the Oscar Chinn Case, for
example, the PCIJ considered that the freedom of navigation included ‘freedom of
movement for vessels, freedom to enter ports, and to make use of plant and docks,
to load and unload goods and to transport goods and passengers’.59 Freedom of
navigation is not solely concerned with the movement of boats. Rather, in some
cases, it can cover engagement in commercial activities related to the transporta-
tion industry, as is illustrated by the abovementioned Oscar Chinn Case. Indeed,
the idea that has long underpinned the establishment of the right of free navigation
in international practice is the assurance of concerned states’ economic interests.60
C. International watercourses and fishing activities
It was in the second half of the nineteenth century that the first conventions on
fishing in international watercourses began to emerge. Among them are bilateral
or multilateral agreements in respect of some European rivers such as the Rhine.61
They covered fishing rights, rules applicable to the preservation of aquatic fauna,
and rules of cooperation, while treaties concluded at the beginning of the twentieth
century started to deal with fishing-related issues such as the pollution-engendered
effects likely to affect such activity.
1. Legal aspects of fishing activities

Fishing rights are the rights granted to a state in respect of the fish resources in
shared watercourses. As an example, Article 2 of the Convention Concerning
Fishing in the Danube 1958 states that ‘each Contracting Party shall exercise its
rights to fish in the Danube River within its borders’.
57 Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder,
Judgment, PCIJ Reports 1929, Series A, No 16, 27–8.

58 Ibid., 28.
59 The Oscar Chinn Case, Judgment, PCIJ Reports 1934, Series A/B, No 63, 83.
60 See Chapter 3 of this book.
61 Convention Concerning the Regulation of Fishing for Salmon in the Rhine Basin (Berlin, 30 June
1885), reprinted in W. Burhenne and E. Schmidt (eds), International Environmental Law: Multilateral
Treaties 1 (1885), 48; see also Convention Between Switzerland, The Grand Duchy of Baden, and
Alsace-Lorraine Establishing Uniform Provisions on Fishing in the Rhine and its Tributaries, including
Lake Constance (Lucerne, 18 May 1887).
If that right does not appear as explicitly in other agreements on fishing, it can
be inferred from their object and purpose. Occasionally, the very need to guarantee
the right can justify the conclusion of an agreement.62
An economic approach has long prevailed in the area of fishing activities.63 It
aims to ensure the availability of fishing resources for all riparian states. The em-
phasis is usually placed on the obligation not to cause damage that would affect
the freedom of fishing. The obligation is understood as an obligation not to cause
damage to fish stocks which would compromise their availability for fishing pur-
poses. It is therefore incumbent on the state to ensure that its activities do not affect
fish stocks at the expense of another state.
In practice, the obligation manifests itself in two ways. On the one hand, it may
indirectly preserve the availability of fish by ensuring the quality of the watercourse
or guaranteeing a minimum flow for the activities of fishing. On the other hand, it
can lead to the enactment of rules directly governing fishing activity.
Point (c) of Annex II of the Agreement between Yugoslavia and Albania
Concerning Water Economy Questions64 gives an interesting example of the first
approach. It provides that: ‘The Contracting Parties shall by agreement adopt pro-
visions and measures for all technical works on frontier lakes and rivers which may
affect the fish population of the waters and their use for fishing . . . ’
Article 5(2) of the Convention Concerning Fishing in the Waters of the Danube
embodies a similar approach:
In the event of the erection on the Danube of water engineering works, in par-
ticular dams, which may change the hydrological or hydro-biological regime of
the river, those Contracting Parties which construct and use the said works shall
prepare in advance and apply jointly a plan of action to safeguard the normal mi-
gratory movements of the fish.
Another regulatory approach deals with the manner in which the activity is con-
ducted. This may include prohibiting the use of certain materials such as toxic
62 See, eg, the Preliminary Convention between Bolivia and Peru in the Exploitation of Fish from
Lake Titicaca (Lima, 17 July 1935). Article 2 recommends that the two states conclude a ‘Convention
on Fishing in Lake Titicaca which Shall Provide for Equality of Rights and Economic Opportunities for
Bolivian and Peruvian Fishermen’.
63 Mongolia– China Agreement on the Protection and Utilization of Transboundary Waters
(Ulaanbaatar, 29 April 1994); Convention Concerning Fishing in the Waters of the Danube (Bucharest,
29 January 1958; UNTS 339 (1958)); Agreement Between Yugoslavia and Albania Concerning
Water Economy Questions (Belgrade, 5 December 1956), Appendices I and II; Convention Between
Finland and the USSR Concerning the Maintenance of River Channels and the Regulation of Fishing
in Watercourses Forming Part of the Frontier (Helsingfors, 28 October 1922); The Agreement of
Bregenz for the Fisheries of Lake Constance (Bregenz, 5 July 1893); Convention between Germany,
the Netherlands and Switzerland for the Regulation of Salmon Fishing in the Rhine Basin (Berlin, 30
June 1885).
64 Agreement Between Yugoslavia and Albania Concerning Water Economy Questions (Belgrade, 5
December 1956).
substances or explosives;65 it may also address the use of various types of fishing
gear, such as nets with mesh,66 or fishing methods harmful to aquatic life.67 Finally,
there may be regulations limiting fishing to a certain period68 or place,69 or re-
stricting the size of fish that may be caught.70
States can also favour a cooperative approach through the exchange of informa-
tion or the creation of joint fisheries commissions. As an example, the Convention
on Fishing in the Waters of the Danube 1958 provides in Article 8 that:
In the interests of rational fishing and in order to ensure the normal breeding
and conservation of economically valuable species of fish, the Contracting Parties
shall communicate to one another, in good time, information on the catches and
migratory movements of fish in all waters to which this Convention applies.
Similarly, in Article II(2)(g) of the Convention for the Establishment of the Lake
Victoria Fisheries Organization of 1994, it is stated that the organization will
serve as a centre of exchange and a database for information concerning fishing
in Lake Victoria. The obligation of cooperation therefore seems to mean in prac-
tice the exchange of information between states. The content of information will
vary depending on the objectives. It may concern, for example, the number of fish
caught by each state and the migration of fish,71 or the introduction of new species
into the watercourse.72
65 Convention on Fisheries in Italio-Swiss Waters (Rome, 19 March 1986; FAL 39 (1990); Recueil
officiel des lois fédérales 15 (1989)), Art 5(4); see also Convention Between Finland and the USSR
Concerning the Maintenance of River Channels and the Regulation of Fishing in Watercourses
Forming Part of the Frontier, Art 5(5); The Agreement of Bregenz for the Fisheries of Lake Constance,
Art 4; Convention Between Switzerland, The Grand Duchy of Baden, and Alsace-Lorraine Establishing
Uniform Provisions on Fishing in the Rhine and its Tributaries, including Lake Constance, Art 4(1).
66 Convention Concerning Fishing in the Waters of the Danube, Annex, Art 8; The Agreement of
Bregenz for the Fisheries of Lake Constance, Arts 2 and 3; Convention Between Switzerland, The Grand
Duchy of Baden, and Alsace-Lorraine Establishing Uniform Provisions on Fishing in the Rhine and its
Tributaries, including Lake Constance, Arts 2 and 3.
67 Convention Concerning Fishing in the Waters of the Danube, Annex, Art 5; Convention on
Fisheries in Italio-Swiss Waters, Art 5; Convention Between Switzerland, The Grand Duchy of Baden,
and Alsace-Lorraine Establishing Uniform Provisions on Fishing in the Rhine and its Tributaries, in-
cluding Lake Constance, Arts 1 and 4.
Fisheries in Italio-Swiss Waters, Art 8; The Agreement of Bregenz for the Fisheries of Lake Constance,
Arts 6 and 8; Convention Between Switzerland, The Grand Duchy of Baden, and Alsace-Lorraine
Establishing Uniform Provisions on Fishing in the Rhine and its Tributaries, including Lake Constance,
Arts 6, 7, and 8.
69 Convention on Fisheries in Italio-Swiss Waters, Art 6; Convention Concerning Fishing in the
Waters of the Danube, Annex, Arts 2 and 3.

Fisheries in Italio-Swiss Waters, Art 7; The Agreement of Bregenz for the Fisheries of Lake Constance,
Art 5; Convention Between Switzerland, The Grand Duchy of Baden, and Alsace-Lorraine Establishing
Uniform Provisions on Fishing in the Rhine and its Tributaries, including Lake Constance, Art 5.
71 Convention Concerning Fishing in the Waters of the Danube, Art 8.
72 Convention for the Establishment of the Lake Victoria Fisheries Organization (Kisumu, 30 June
1994), Art II(f). Electronic version available at http://www.fao.org/fileadmin/user_upload/legal/docs/

027t-e.pdf.
Cooperation can manifest itself through the establishment of joint bodies, such
as a committee in charge of assisting states in implementing their common policy
on fisheries73 or an organization responsible for the monitoring and management
of fisheries on the concerned body of water.74 Such a task can also comprise the
many activities with which basin and river commissions are entrusted.75
2. Human needs, fishing activities, and the contours of a legal regime

Human needs have also had an influence in the context of fishing activities. In fact,
the possibility of fishing in waters that fall under the sovereignty of another riparian
state76 can be guaranteed to the riparian populations of a shared watercourse. The
Exchange of Letters Concerning the Protocol on the Border of Rwanda-Burundi
1926 in its paragraph 2 provides that: ‘all customary rights of fishing and passage
exercised by natives living on either side of it should be preserved’.
The ICJ in the Dispute Regarding Navigational and Related Rights (Costa Rica
v. Nicaragua) Case underscored that customary fishing rights can be defined as
rights which result from a long and uncontested practice of fishing activity by in-
habitants who surround shared watercourses.77 Fishing had long been carried out
from the Costa Rican bank of the San Juan River, mainly for subsistence purposes.
However, the Court considered that this right could not extend to the practice of
fishing from boats on the river.78 In the Case Concerning Kasikili/Sedudu Island,
the Court did not simply identify the boundary around Kasikili/Sedudu, but rather
concerned itself with safeguarding the traditional activities of the local population,
such as fishing, by reminding the parties of their commitment to cooperate.79
Halieutical resources of an international watercourse may be considered as
shared natural resources,80 particularly in light of the mobility of the fish stocks,
which is likely to affect the beneficiaries. For example, in a watercourse that crosses
a transnational border, fish are constantly moving from one state to another.81 It
follows that overexploitation by one state can cause harmful consequences to an-
other state.82 This hypothesis seems to appear implicitly in the commentaries to the
73 Commission established by the Convention Concerning Fishing in the Waters of the Danube,
Art 11.
74 Convention for the Establishment of the Lake Victoria Fisheries Organization, Art II.
76 See Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, [2009]
ICJ Rep 213, paras 134–44.

77 Ibid., para 141.
78 Ibid., para 143.
79 Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), paras 102–3.
80 On the regime applicable to shared natural resources, see J. Barberis, ‘Los recursos minerales
compartidos entre Estados y el derecho internacional’ [online article], http://www.iadb.org/intal/

intalcdi/Derecho_Integracion/documentos/018-019-Estudios_03.pdf; see also Z. Drnas de Clément,
‘Los recursos naturales compartidos entre estados y el derecho internacional’ [online article], http://
www.acaderc.org.ar/doctrina/articulos/artrecursosnaturalescompartidos.
81 J. Barberis, ‘Los recursos minerales compartidos entre Estados y el derecho internacional’.
82 Ibid.
Draft Articles on the Law of Transboundary Aquifers of 2008, in which it is men-

tioned that the topic of ‘Shared Natural Resources’ might also encompass resources
such as ‘migratory birds and other animals’.83
At the universal level, there does not yet exist a specific international regime ap-
plicable to fishing in international watercourses. Fishing activities are only taken
into account indirectly through the regulation of the management and conserva-
tion of halieutical resources. This regulation is based particularly around the obli-
gation not to cause harm to halieutical resources, so as not to affect the economic
activity or the aquatic ecosystem. In this case, multilateral environmental treaties
also contribute to the development of an international regime in fixing objectives
and imposing certain behavioural requirements.84
D. International watercourses and other uses
International watercourses are not only relevant for boundary delimitation,

navigation, and fisheries. They constitute in and of themselves a reserve of fur-
ther resources. Since the end of the nineteenth century, watercourses have in-
creasingly been used for irrigation, energy production, other industrial uses
and for recreational purposes. This aspect was also reflected in the practice of
states and in the evolution of the relevant corpus iuris.
Irrigation, energy production, and certain types of industrial activities in-
volve ‘planned measures’.85 According to the definition of the International Law
Commission (ILC), planned measures are to be understood in a broad sense,
including new projects and programmes, as well as changes in the existing uses
of a transboundary watercourse.86 Under this category fall physical infrastruc-
ture and installations that are required for an industrial activity, such as dams,
water supply pipes, and locks, also referred to as ‘infrastructure’ or ‘works’.
International law applies to the case of planned measures.
The famous US–Mexican dispute over the Rio Grande speaks to the different
conceptions of the applicable law.87 Two opposing positions were maintained
by the parties. On one side, the American ‘Harmon’ doctrine—after the name
83 Draft Articles on the Law of Transboundary Aquifers, with Commentaries (2008), 27. Electronic
version available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/8_5_2008.pdf.

85 Convention on the Law of the Non-Navigational Uses of International Watercourses 1997 (UN
Watercourses Convention) (New York, 21 May 1997; ILM 36 (1997)), Art 11.
86 See the Commentary to Art 11 of the Draft Articles that later became the UN Framework
Convention on the Law of the Non- navigational Uses of International Watercourses 1997 in
International Law Commission, Report of the International Law Commission—Forty-sixth session, UN
Doc A/49/10 (22 July 1994), 111.
87 The dispute concerned the re-partition of the Rio Grande waters at the US–Mexico border. The
US, as the upstream country, had set up certain derivations that had reduced the quantity of water
reaching Mexico.
of the Attorney General who first outlined it—asserted that the US had an un-
fettered right to dispose of the Rio Grande waters which originated and flowed
within its domestic territory.88 On the other side, Mexico responded that any
act potentially altering either the quantity or the quality of the water reaching
it—being a downstream country—constituted an infringement of its territorial
integrity.89
Over time, these contrasting positions were abandoned and a compromise
was reached among the riparian states. Only in some limited circumstances are
they still deemed to be a point of reference for international agreements. Most
commentators agree on their practical desuetude, and their purely rhetorical
value in diplomatic negotiations.90
Interests akin to those at stake in the US–Mexico dispute have also been han-
dled in judicial proceedings. A good example is provided by the Lake Lanoux
arbitral award, rendered in 1957. The Tribunal adopted an interpretation con-
cerning applicable law that has since become the cornerstone of customary law
on this issue. In that decision, the Arbitral Tribunal held that a party proposing
works that are likely to alter the course or volume of a successive watercourse
is bound by a double obligation. The first obligation concerns the notification
of such proposed works; its ‘sole purpose is to permit the carrying out of the
second’ obligation,91 the content of which ‘is more difficult to determine’:92
It must first be determined what are the ‘interests’ which have to be safeguarded.
A strict interpretation of Article 11 would permit the reading that the only inter-
ests are those which correspond with a riparian right. However, various consid-
erations which have already been explained by the Tribunal lead to a more liberal
interpretation. Account must be taken of all interests, of whatsoever nature, which
are liable to be affected by the works undertaken, even if they do not correspond
to a right. Only such a solution complies with the terms of Article 16, with the
spirit of the Pyrenees Treaties, and with the tendencies which are manifested in
instances of hydroelectric development in current international practice.
The second question is to determine the method by which these interests can
be safeguarded. If that method necessarily involves communications, it cannot
88 The text of the Harmon Opinion is reproduced in C. Robb (ed), International Environmental Law
Reports, Volume 1: Early Decisions (Cambridge University Press, 1999), 543–9.

89 Mexico also maintained the existence of certain historical rights on the waters crossing the
border. Such rights allegedly stemmed from the fact that Mexican citizens had been the first using the
Rio Grande waters and had, therefore, acquired a right to enjoy as much water as it was necessary to
keep performing the whole range of their activities. For further details on this dispute, see also Quebec
Minister of Foreign Affairs, Gestion intégrée des ressources en eau: modèles étrangers et expériences
récentes (Série sur les enjeux internationaux de l’eau, vol 2, September 1999).
90 On the Harmon doctrine in US practice, see S. McCaffrey, The Law of International Watercourses—
Non-Navigational Uses (2nd edn, Oxford University Press, 2007), 76–111.

91 Lake Lanoux Case (1957) 12 RIAA 281; 24 ILR 101, Award of 16 November 1957, para 21.
92 Ibid., para 22.
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PART TWO
"I love to lose myself in a mystery: to pursue my reason to
an O Altitudo!"
Religio Medici (sect. ix.).
I
How passing wonderful it is that I should be enabled to send another
message to the Earth, and still more wonderful, wonderful out of all
whooping, that I should be writing it not as sovereign of an
unsuspected planet but as a humble member of the human hive on
Earth itself, here in this mean Welsh sea-side inn! As to my former
missive which I dispatched to my present abode through d'Aragno's
kind offices some two years ago, I have, of course, no notion as to
its final fate. That it really did reach the sphere of its destination I am
convinced; but whether it is still lying unheeded on some rolling
steppe or sterile mountain range; or whether it has been ascertained,
deciphered, discussed, nay even printed, I am wholly in the dark.[1]
Not that I seek to vex my mind in this matter. Nevertheless, it
amuses me to assume that my former letter from Meleager has been
duly found, debated and published, even though such assumption
likewise includes the theory that its veracity is discredited by all who
have cared to study its contents. Are we not assured in The Book
that one arising specially from the dead and scorched with the
flames of hell will not arouse belief in the living man? And if the
mission of Dives to his careless brethren be a predestined failure,
what chance of credence can possibly await such a message in
manuscript from Meleager? Leaving these barren speculations, I
intend to resume the tale of my adventures at the point where I
halted—namely, on the eve of my entrusting my scroll to the custody
of the Meleagrian councillor.
[1] This was obviously written before the interview described in a
later chapter.—C.W.
It is not so easy to judge of the exact passage of time in Meleager,
but I fancy about two years must have flowed past without any
incident worthy of record since I parted with my cherished
manuscript. The diurnal revolution of duty, sleep, exercise and
meditation marched so smoothly onward that it came to my
unprepared mind as a crashing shock to learn that my cycle of calm
existence was liable to fierce disturbance. My sharp awakening was
on this wise. For some days I had received no visit from my dear old
friend, the Arch-priest (for by this time, in spite of certain barriers of
circumstance and polity, he had grown very dear to me), and this
omission caused me to feel some degree of anxiety concerning his
absence. More curious than alarmed I therefore asked one of the
hierarchy, Vaïlo, who was in attendance, the cause of this
suspension of the usual visits. The councillor, discreetly casting his
eyes to the ground, replied that the Arch-priest was expecting shortly
to be absorbed into the family of the Sun-god. Albeit enigmatically
thus expressed, I could not fail to realise the gravity of the news; in
plain parlance, my friend and adviser was on the point of dissolution.
A horrible chill invaded my heart, and I felt sick with a sense of
genuine sorrow and of deep misgiving. I knew him to be old, and I
ought therefore to have anticipated the propinquity of his death, but
with blind egoism I had overlooked such eventualities. My first
impulse was to ply Vaïlo with questions as to his condition and
chance of recovery, but the guarded replies afforded me no ray of
hope. I even begged to be conducted to the old man's bedside to
take a last farewell, but this request Vaïlo (I think and trust with a
touch of pity in his harsh voice) assured me was illegal. I then lapsed
into sullen silence, whereupon the councillor took the opportunity to
depart, leaving me a prey to unspeakable misery and agitation.
All that night I tossed and turned on my luxurious bed, and such
short spells of sleep as I snatched only reflected the dour images
that were passing through my brain. Mechanically I undertook my
usual duties in the morning, and later in the day I was sitting beside
a solitary and untasted meal in my balcony, moodily staring with
fixed unseeing eyes at the beautiful prospect sweltering in the
noontide sunshine, when Hiridia suddenly entered to announce that
a litter was being borne up the palace steps. A moment later
appeared a messenger with the request for an audience of the Arch-
priest, who was too feeble to approach on foot. With my black
despair of a moment past converted into temporary relief, I signed
my assent, and all expectation I watched the palanquin being carried
through the ante-chamber and finally set down on the pavement of
the balcony. With my own hand I assisted its venerable occupant to
alight and to install himself with some degree of comfort in a large
chair. It was distressing to mark the changes that the past few days
had wrought in my beloved friend, whom I had always regarded as a
sublime picture of hale and hearty age, sound alike in body and
intellect. Now the skin drawn taut over the face appeared like yellow
parchment; the hands were dry and osseous; the gait was languid
and hesitating; verily, the seal of impending death was firmly set
alike on limb and lineament. So soon as we were left alone, the
Arch-priest, gazing at me steadfastly with an expression in which
were blended at once pity, affection and grave concern, held out his
poor trembling arms towards me, whereupon I sank to the floor so as
to lay my head on the thick white folds of the robe that covered his
emaciated form. Long time he continued to stroke my hair or gently
trace my features with his dry, feverish hands, much as a blind man
might seek to feel or sense some precious object, the while I wept
unrestrained tears, whose bitter flow seemed to relieve my heart of
some of its accumulated anguish. Thus we remained, age comforting
and supporting youth, and both finding mutual consolation in this
belated concession and yielding to an open affection from which we
had so long been debarred. At length a warning voice in gentle,
feeble tones bade me dry my eyes and rise to my feet.
"My son," began the old man, "my son, for in my heart I have long
adopted you as such, your image and your fate have been troubling
me in dreams upon my bed. Be strong. Be prepared for evil tidings.
My life is ebbing fast, as you may see, but there are matters I must
announce to you before my small stock of vitality is exhausted. Seat
yourself in that chair facing me, and give me your hand to clasp,
whilst I tell you what I specially desire to impart....
"I am a very old man, and though I have retained my powers of mind
and body in a degree that is unusual in Meleager, whose denizens
fade as they mature earlier than do those of the Earth, the inevitable
call has sounded at last, and in my case more swiftly and suddenly
than I could have wished. For many months past I have been deeply
distressed on your behalf, my son. I have been rent and vexed by
the rival claims of duty towards my office and of my pity and affection
towards yourself. Or rather, I have been speculating with ceaseless
anxiety as to where my real duty lay. As a councillor of the hierarchy
of Meleager and a keeper of The Secret I am impelled to abandon
you to your fate, be what it may; yet as one who is about to say
farewell to all things in this existence, I feel I cannot, I must not
depart thus without lifting from you the cloud of subtlety and intrigue
wherewith your young life is overshadowed. I have endured hideous
visions upon my bed; I have heard your voice of reproach and
pictured your final struggle; I have communed with my own soul in
perfect frankness; and as the result of this spiritual conflict, involving
so many diverse arguments, I am here to-day to warn you."
Again the old man extended his wasted arms towards me and
embraced me with a renewed burst of tenderness. Then he
motioned to me to resume my seat.
"I must hasten to divulge what is lying like a load upon my heart, for
my span of life can now but be reckoned by hours, not days. In the
first place you have been grievously, wilfully deceived by our envoy
on Earth and also by myself (though herein I have been merely
following the normal trend of our polity) in one most important matter.
For you have been permitted, even encouraged, to believe that your
reign here in Meleager can be indefinitely prolonged, provided you
do not set yourself to withstand or embarrass the ruling hierarchy of
this planet. Only theoretically is this true. It is a fact, I admit, that our
kings can be rejuvenated over and over again, and by this means be
enabled to survive generation after generation of Meleagrians—but
this never happens in reality. Not a few monarchs have these aged
eyes of mine witnessed in Meleager, and I have heard tell of others,
but not one of these has attained to so much as two lustres of
regnant power in the star to which they had been translated under
circumstances similar to your own. It is true our kings have often
brought premature and well-deserved disaster on their own heads,
but of such I am not now thinking. I am speaking of our hierarchy
who are by no means immaculate, and whose intrigues and jealousy
will not permit any monarch to escape his predetermined end, no
matter how conspicuous his merits. Not that all our members are
tainted with this disease of treachery, that is far from being the case;
but in every executive body so strong is the spirit of self-interest that
no scruples will stand in the way of preserving power, from
whatsoever cause it is once threatened. Men are mostly evil, as your
great Italian thinker, Nicholas Machiavelli, was bold enough to
proclaim, and their guides or politicians are crafty animals who suck
advantage from every weakness of humanity. Such being the
inevitable state of things politic, our poor monarchs are placed in a
hopeless dilemma, whereby they are doomed to failure, and for the
following reasons. If they avoid the snare of politics, they grow
vicious or oppressive of the populace, so that they lose the general
esteem, and the watching hierarchy is swift to annex this alienated
favour and to transfer it to its own body by ridding Meleager of an
obnoxious semi-divine King. Again, it has happened on not a few
occasions that the King has set to combine with the subservient
populace against the real ruling caste. I myself have seen these
palace courts and halls slippery with the blood of slaves and soldiers
who have sought at the royal bidding to overthrow the executive
council, and have themselves been overwhelmed and massacred in
the attempt. Or else, commonest and most dreaded event of all that
we prepare to circumvent, our monarch will seek to found a dynasty.
This is a danger we are compelled to nip in the bud by eliminating
the erring sovereign rather than by destroying the victim or tool of his
designs. But you yourself belong to none of these categories of
undesirable rulers—the ambitious, the despotic, the brutal, the
licentious, the knavish; and it is for this very distinction that I now
have come hither to inform you of certain things.
"You alone of all the earth-rapt monarchs of Meleager that ever I
have known or heard of have pursued an even tenor of deportment,
holding yourself strictly aloof from the besetting snares of popular
adulation and of selfish indolence. You have never strained to
encroach on the prerogative of the hierarchy, yet you have openly
and boldly clung to such shreds of power as our constitution legally
permits you to exercise. You have never stooped to flatter the
priestly caste; although you have given proof again and again that
you clearly understand and appreciate the intertwining nature of the
bonds that unite the offices of King and council. You have shown
yourself affable and gracious to our nobility; kindly and sympathetic
to the people without any ulterior object in your behaviour. You have
forborne to break our laws with regard to dalliance with women, for in
your case no spy has as yet reported any such dereliction on your
part. You have worked well, within the limits assigned to you, to
assist the well-being of the community; and it is also evident that you
are a cordial upholder of our fundamental theory that human
happiness rather than human progress offers the truest mark for
statesmanship, and that those who enjoy the sweets of office and
power must alone taste of the bitter punishment entailed by their own
failure or disloyalty. In my eyes, therefore, you are the ideal King;
and yet, and yet, you will not survive to behold the complement of
the half score of years of sovereignty, which has only once been
attained hitherto in the whole course of Meleagrian annals. Your very
virtues of self-restraint and implicit honour have only contrived to
arouse in its direst shape that spectre of suspicion which is the
guiding genius of our state craft. In other words, even a good King of
Meleager is likewise foredoomed, whatever struggles and sacrifices
he may make to gain and hold the approval of his virtual masters.
"To divert my warning now from the general to the particular, I must
tell you that on my departure hence to the Hereafter, every signal
points clearly to the approaching cessation of your reign. Unless I
am gravely mistaken, the councillor who is marked out to succeed
me as Arch-priest leads our most truculent faction, and under his
auspices no long period will elapse before the order will go forth for a
change of monarch. Doubtless not a few voices will be raised in your
behalf, for you have grown dear to many of us; but I feel convinced
such pleading will not prevail. By this time you must, with your
acquisitive mind, have guessed at the fate which awaits yourself, the
fate that has engulfed so many of your predecessors, the Fountain of
Rejuvenation. The sustaining ropes will be cut during your plunge
therein, so that the fierce undercurrent may draw you into the bowels
of the underworld. Thus will you cease to reign, as we phrase it with
euphemistic delicacy. Should you perchance be cunning enough to
elude this mode of execution, rest assured there are other means in
plenty equally awful and drastic, once the fiat of your removal has
been definitely pronounced. My son, you must prepare to meet your
fate, for though I still hope some unexpected turn of Fortune's wheel
may yet operate for your preservation, in my opinion your doom is
already imminent. But one ray of comfort, or rather one spell of
delay, I am able to promise you. By our immutable laws the newly
elected Arch-priest, who guards the rites and mysteries of that
dreadful fountain, is compelled to retain in office the two attendant
councillors who assist in carrying out the process of the lustration.
Thus on the first occasion of this ceremony under my successor you
will be absolutely safe, for I have obtained the most solemn
assurances to this effect from the two colleagues who have lately
served me in this capacity. But this arrangement will only affect the
next ceremony, for thenceforth the new Arch-priest is empowered to
select assistants of his own, and naturally he will choose his own
creatures for the required purpose. Still, such a respite will afford you
some breathing-space for preparation and self-communing, as it will
prolong your existence for the space of a further half-year. Perhaps
fresh developments may arise within that span of time—who knows?
"One thing I implore of you, and I know I do not ask in vain. Do not
stir up strife in our planet, as other kings have done before you. Your
chance of success is almost hopeless, as no doubt you already
realise, knowing the intensity of the suspicion wherewith every
movement on your part is regarded and provided for. Because you
are destined to die, die alone, and forbear to drag a number of
innocent persons along with you to your doom. You have performed
your manifest duty for the past seven years with a steadfast
beneficence that is worthy of your alleged father, the Sun; and
remember, it is the fulfilment of duty alone that counts in the future
life of the Hereafter, whose prospective blessings will eventually be
yours."
I cannot describe the tender and earnest manner of the dying man's
discourse, terrible though its disclosures were to myself. Even the
final piece of advice, platitude of every creed and clime though it
was, seemed to come as a help and a spur to me at this critical
juncture. After all, what is a platitude but the untimely expression of
some great basic truth? And here, from the venerable hierophant,
who from a strict sense of duty had left his sick-bed to come hither
and instruct me, the words seemed to possess a peculiar meaning
and value; his simple appeal to my own sense of rectitude had all the
force of a profound thought extracted from a world of thinking. I could
only press the hot, dry, bony hand, as I shrouded my head in the
folds of my royal mantle in a vain endeavour to subdue a fresh bout
of weeping.
"And now," continued my companion, making an effort to rise, "I
must depart with my blessing upon you. Long may you be spared to
rule in Meleager; and if not so, then we shall meet in due sequence
within that narthex of silence and shadows which forms the vestibule
to the temple of the Hereafter."
Once more he embraced me long and lovingly, after which he bade
me strike the bell reposing on the table. At his request too I passed
to the farthest end of the balcony, so as to keep my face averted
from the little group of attendants who now assisted the dying man to
his litter. I could hear the shuffling of feet and whispering of voices
involved in the task of transporting my old friend, whilst with
swimming eyes I gazed blankly at the white cheerful city, the cool
greenery of the palace gardens and the flashing liquid mirror of the
haven of Tamarida. Nor did I budge from my stiff, comfortless pose
till at length I felt a light touch on the shoulder, the respectful touch of
a privileged dependent. On turning my eyes, still red and swollen
with my lately shed tears, they met the honest, inquiring face of
Hiridia, who was regarding me reproachfully, as though rebuking me
in silence for such an unseemly lack of control. I made the necessary
attempt in the form of a wan smile and a request for a cup of wine;
for a true public ruler must exhibit no private sorrow. Was it not the
magnificent Giovanni dei Medici, Pope Leo the Tenth, who was
reprimanded by his punctilious chamberlain for falling to tears openly
on the news of the death of his favourite brother, "seeing that the
Roman pontiff was a demi-god and not a man, and must therefore
display a serene and smiling countenance on all occasions to the
people"? It was in this spirit then that I accepted Hiridia's tacit
reproof; sometimes the will of man imposes itself on the weakness of
the gods.
II
Three days later I was informed of the passing of Anzoni, Arch-
priest of Meleager, and of the election of Marzona as his successor.
For the former part of this intelligence I was, of course, fully
prepared, but the latter intimation aroused my worst apprehensions
and depressed my spirits to their lowest depth. For I understood only
too well the hard, intractable, suspicious nature of the councillor who
had just been chosen—by what means or on what system I knew not
—to fill the vacant office of my dear old friend. All I could do was to
conceal with equal adroitness both my sorrow for the first calamity
and my anxiety over the second, and to pursue my normal course of
life with all the composure at my disposal. Nevertheless, my first
formal interview with the new potentate only served to strengthen
every foreboding on my part. Marzona always treated me, I admit,
with a courteous demeanour whether in public or private; but I was
only too conscious on every occasion of our meeting that I was in the
presence of a crafty, unrelenting foe, whom it would be useless to
attempt to placate. As for Marzona's prior career, I had gathered
some time ago that he was by birth a plebeian "intellectual," who had
risen by his talents (in the manner already described by me in my
former letter) to the order of the nobility, and from the ranks of the
nobles had contrived to pass through the school of the neophytes
and the college of the probationers, and thence into the coveted
oligarchy beyond. For private reasons he had always aimed at the
office of Arch-priest, sedulously declining, with this particular
objective in view, to undertake the voyage to the Earth, with the
result that now at last he had attained to that eminence on which for
years he had concentrated his hopes, his desires and all his
immense capacity of intrigue. In appearance Marzona was not
unprepossessing, and his face, which showed of a somewhat lighter
tint than is usual in Meleager, would have been accounted
handsome, were it not for the dull hazel eyes, which, however,
constantly emitted from their recesses a ruddy gleam, reminding me
of the hidden tongue of flame that lurks in the so-called black opals
of Queensland. To a nature so sensitive as mine, the very approach
of this personage caused an involuntary tremor of repulsion, and in
my heart I always quailed when those expressionless, opalescent
orbs were directed at me.
In estimating our misfortunes and brooding over them, we are
unwittingly given to exaggerate, so forcibly works within us the
irrepressible spirit of egoism. We oftentimes hold ourselves to be the
absolute sport of some malign fury, whereas, did we but know it, we
have in reality but commenced to drink of that bitter cup which we
imagine we have almost drained to the dregs. So it was in my own
case of despondency. I could not figure to myself a worse disaster
than what had just befallen me in the double blow caused by my old
protector's death and the election of his odious supplanter; and
accordingly I set to lament my grievances as though they were
incapable of further extension. My mental blindness on this point was
however swiftly and suddenly illumined by means of a recurring
stroke of evil that was dealt me within three weeks of the election of
the new Arch-priest. On awaking one morning I missed Hiridia's
customary entrance into my chamber, an omission of duty that had
never occurred previously except with my consent and knowledge.
The day passed slowly without any sign of my chamberlain, so that I
grew angered, puzzled and finally alarmed. Still, some inner
shrinking urged me to restrain my natural annoyance and curiosity
as to this mysterious lapse, and it was not till nightfall that I
summoned Zulàr, my senior equerry, and questioned him with such
nonchalance as I could assume concerning the cause of Hiridia's
abstention. Zulàr, who seemed terribly nervous, at first sought to
evade my inquiries; but on my growing stern and insistent, he
admitted to me what I realised at once to be the truth, or at least a
portion of the truth; Hiridia had entered the school of neophytes the
preceding night, having lately developed a vocation for the hierarchy,
for which his age now rendered him eligible. So far, this was strictly
accurate, for I knew that the graceful stripling of some seven years
ago had quite recently attained the prescribed age, being indeed a
youth no longer; also I was convinced he really was interned within
the walls of the seminary. On the other hand, it was inconceivable
that Hiridia should have deserted his master in so abrupt and so
insolent a fashion, even supposing he had honestly wished to
graduate for the hierarchy, of which intention on his part I had never
observed the least indication. His loyalty and devotion to myself and
my interests were beyond question, and I had the anguish to realise
that my poor favourite had been treacherously kidnapped and was
now a veritable prisoner within the walls of that hierarchical castle.
Fortunately indignation rather than grief was the predominating
emotion of the moment, so that I at once dispatched the affrighted
Zulàr to bear a message from me to the Arch-priest, bidding him
attend with all speed at the palace. For hours I waited in wakeful fury
the arrival of Marzona, who on some pretext contrived to delay his
coming until the following morning was well advanced. Perhaps this
slighting of my command was not wholly without benefit to myself,
for by the time of his belated appearance my mood had grown
calmer and I was disposed to regard the situation with some degree
of diplomatic restraint. Without, therefore, directly assuming his
influence in the matter, I bade Marzona explain to me this sudden
resolve on Hiridia's part, whereby I had been unexpectedly deprived
of an official whose services I valued so highly. I also laid stress on
the erratic and disrespectful manner of his withdrawal from my Court.
Coldly and steadily those dull, jade-coloured eyes scanned my face,
as I expatiated on my wrongs, so that I could easily gather there was
no help forthcoming from this quarter whence doubtless had
emanated this cunning stroke of malevolence. When I had made an
end, the Arch-priest began in suave tones of pseudo-sympathy to
express his regret for my loss, whose extent he did not seek to
minimise. At the same time, so he explained to me, the laws of
Meleager with regard to postulants for the hierarchy were
fundamental in their scope, and consequently utterly beyond the
control or interference of the Arch-priest. Hiridia had exceeded his
thirtieth year, and was therefore free to choose and inaugurate such
a career at any moment; at the same time he agreed with me in
thinking that Hiridia's conduct in so quitting my service snowed a
lamentable lack of gratitude and consideration to a most indulgent
patron. And he again offered me his condolences for my loss and
resulting inconvenience.
No Medicean Secretary of State could have exhibited greater
reserve and finesse in argument and deportment than did the new
Arch-priest of Meleager in this interview with myself. Had it not all
been so tragical and alarming, I could almost have been won to
admiration of the easy duplicity of Marzona, who parried my
questions and pretended to soothe my complaints of ill-treatment,
the while wholly indifferent to the patent fact that I was clearly
reading his black hostile heart. The moral prototype of this man must
have flourished centuries ago at the venal courts of Rome and
Ferrara; had the state craft of the petty Italian despots of the
Renaissance been transplanted into the fertile soil of Meleagrian
hearts, here in the twentieth century of our Herthian Christian era?
Disgusted and wearied at last from this verbal fencing with an
invulnerable antagonist, I nodded my head in token that the interview
was at an end and the incident closed, my sole ray of consolation
being that Marzona did not perhaps truly appraise the full extent of
the injury he had dealt me by his recent seizure of Hiridia's person.
Possibly he may have relied on my being goaded thereby into
indiscreet abuse, and if such were his main object, in this design he
had at least been foiled. Verily, this reflection was a sorry crumb of
compensation for the blighting loss I had sustained; still, it offered
some moral support in itself to think that I had successfully curbed
my natural fury. At the same time I did not wholly veil my attitude of
intense displeasure, for I argued it might possibly excite fresh
suspicion in another guise were I to bear my late discomfiture too
lightly in outward appearance. With my heart therefore secretly
wrung and tortured and with my brain afire from impotent indignation,
I sought to swallow my late indignities with as good a grace as I
could muster.
If man is incapable of estimating the full degree of a visitation of evil,
so also is he equally at fault in appreciating his present advantages,
until he be suddenly deprived of them. So it fell in this matter of
Hiridia's removal, whose unhappy consequences to myself only
emerged gradually after the event. Until a few weeks ago I could
never have believed that Hiridia's companionship had been of such
vital help to me or had so sweetened my royal existence. I had been
accustomed to regard my erstwhile tutor rather as a favoured page
whom it amused me to confide in, to mystify, to scold, or to twit as
might suit my passing whim. That I should have deeply regretted his
departure I was quite ready to admit; but I never anticipated the
serious nature of my loss till that loss was effected. A veritable
portion of myself seemed to have been lopped away by this devilish
scheme; whilst the haunting thought that the poor boy—for I made
scant allowance for his thirty years now fulfilled—was almost
certainly sobbing out his faithful and affectionate heart in a hateful
prison, only served to fan the flame of my torment. Yet I was helpless
and powerless, and could only await the approach of the solstice,
when the expected bath in the Fountain of Rejuvenation might
possibly brace my brain for some successful plan of action.
III
Happily this ceremony was not many weeks distant, and its
approach afforded me some objective, however uncertain and
inadequate, for fixing my hopes in the future. The lassitude too that
usually preceded this half-yearly reinvigorating process had
appeared rather earlier than its wont, so that the physical weariness
and languor were already rendering my brain less active and thereby
indirectly supplying me with some measure of relief from my tense
anxiety. I continued to perform my daily duties in the judgment halls
of the city, but otherwise I ceased to leave the palace during this time
of ineffable loneliness and humiliation. To fill Hiridia's vacant place of
chamberlain I nominated Zulàr, and likewise selected another
equerry. With my daily routine thus proceeding outwardly much as
usual, I relied on my being left in peace throughout the intervening
weeks before the coming of the solstice. But herein I was grievously
mistaken in supposing that the machinations of my enemies had
been even temporarily suspended, as the following incident can
testify.
I was in the habit, especially during the hot weather, of sitting in the
palace gardens to meditate. Now, in my case, this daily custom of
meditation supplied the place of reading, and with constant practice
it was interesting to find how excellent a substitute for books it
became in course of time. For I had gradually grown to appreciate
the luxury of solitary thought to such an extent that I should have
lamented the cessation of these opportunities as many an earth-born
mortal would regard his deprivation of all printed matter. "He is never
alone who is accompanied by noble thoughts," and inasmuch as I
felt myself in the cue for tragedy, poetry, comedy or pure fantasy, so I
had grown an adept in attaching my prevailing humour to the trend of
my musings. Thus I passed long hours of solitary communing in a
world of my own peopled with my intimate aspirations, ideals,
conceits and fancies. My favourite spot for the practice of these
cerebral gymnastics, if I may so describe them, was a certain shady
corner of the palace gardens which terminated in a semicircular
marble bench backed by a close-clipped hedge of bay and daphne.
The path leading hither was likewise lined with thick walls of
aromatic verdure, so that the air was often odorous with the clinging
scent of aleagnis and allspice. Overhead the branches of taller trees
had been artfully pleached, whilst the young leaves of the topmost
boughs in opposition to the fierce beams of the invading sunlight
caused a soft golden haze to brood in the sylvan vaulting of this
green alley. As I lay on my marble couch I used to note the
penetrating shafts of sunshine discover the knots of golden wire that
bound together these over-arching limbs, exposing the artificial origin
of the bower and reminding me of Leonardo da Vinci's Arbour of
Love with its gilded true-lovers' knots that still flourishes in one of the
vaulted chambers of the Sforzas' gloomy citadel in Milan. True, I
used to miss in my leafy Meleagrian lair the mocking fauns and
nymphs of Boboli and Borghese, who seemed set on their stone
pedestals to watch with sly glances as to whether Christian mortals
would behave with more decorum than themselves in those delicious
and provocative groves, where in primitive days they were
"Wont to clasp their loves at noontide,
Close as lovers clasp at night,"
with none to call aloud Halt! or Fie! To make amends for the absence
of these simulacra of the jolly pagan life of Herthus, there was a
fountain hidden somewhere behind the bosky screens, which
allowed its water to flow in a series of cadences and pauses and
arpeggios, so that it sung a lullaby that was by no means
monotonous to the surrounding thickets and to any stray inhabitant
thereof.
Here I used to expend many an hour in perfect solitude, seeking
repose and release from the canker of anxiety, trying more or less
effectually to emulate the advice of the poet and to annihilate my
entity to a green thought in a green shade.
It was on a hot afternoon that after the midday meal I sought as
usual my cherished retreat, wherein I seated myself according to my
custom, appreciating at once the melody of the unseen fountain, the
droning of the bees in the scented bloom without and the amber
radiance caught in the interwoven branches overhead. Lying thus, I
sought to hit on some apposite theme whereon to concentrate my
powers of meditation. But the jaded brain and the perturbed mind to-
day refused to permit me any relief from the engrossing melancholy
of my present situation. Thus I sat limp and despairing on my bench,
utterly oblivious of the passage of time and only dimly conscious of
the amenities of art and nature wherewith I was surrounded. From
this drowsy mood of reflection I was suddenly recalled by a rustling
sound close beside me. With ears alert I heard the sound increase,
and a moment later descried the thick wall of box and laurel tremble
and then divide so as to allow the figure of a young female to
emerge from its depths. In sheer amazement I continued to stare,
grasping every detail of the intruder's face and dress, as she
gracefully extricated her form out of the detaining undergrowth. She
was taller and slighter in build than the average type of her sex in
Meleager; her skin was considerably fairer and of an elegant pallor;
her hair had glints of gold and chestnut to relieve its blackness; her
eyes were like beryls. Clad in her green robe and coif she certainly
appeared a natural incarnation, a veritable hamadryad, amidst these
secluded groves which had just produced her. Instinctively I realised
she was no true native of Meleager; her figure, her eyes, her skin,
her gestures were not those of my subjects; on the contrary, there
was a subtle but pervading suggestion that this interloper was of the
Earth. Was she then the daughter, or possibly the descendant, of
some predecessor of mine in this perilous throne who had risked his
crown in an amorous adventure? Who was she? Whence was she?
Why was she here? Such questions naturally chased one another
across my perplexed brain, but the third of them at least the new-
comer was evidently only too anxious to explain. I myself was the
goal and aim of her present vagary, for still crouching low she
writhed towards my feet, which she proceeded to clasp, whilst with
tears in her beautiful eyes and breakings of her rich tender voice she
began to implore my protection.
Beset thus unawares, I could do no less than listen to the rambling
tale of woe and injustice her parted rosy lips delivered; how she had
managed to escape from the hateful tutelage of the priestesses of
the Sun; how she knew she could rely on my assistance; and how
many sanctuaries of easy concealment existed in the purlieus of the
palace. All the while this torrent of entreaty, flattery and self-
commiseration was being poured forth in an unbroken stream, my
suppliant contrived to edge nearer and nearer to myself, half-rising
from her knees and lifting her shapely white arms to the level of my
shoulders. There was an influence, an aroma about her that vaguely
suggested the women of my own planet. I realised the existence of
some indefinable link between my own nature and hers, something
of the Earth earthy, and therefore inestimably precious here in
Meleager. A warm current of human sympathy and magnetic
attraction seemed to be circulating around me. One moment, one
second more, and I felt we should be locked together in one
another's arms, we two hapless dwellers on Meleager belonging of
right to another world and meeting in an alien planet. One second
more, and we two waifs of different sexes would have been caught in
an embrace of commingled sorrow and devotion, caring naught for
the dangers ahead and happy only in our new-found union of
congenial souls. The bewitching face, with eyes that sparkled
through the film of tears and with radiant youth lurking in their wells
of light, was almost touching my own, when there flashed before me
a vision rather than a thought of my impending danger. I glimpsed a
sensation of orbs vigilant and sinister, multitudinous as the eyes in
the peacock's tail, usurping the places of the leaves around me; the
playing water's chant turned into a sudden note of terrified warning
and entreaty; the golden haze above grew lurid. With supreme
energy I knit my remaining strength together, as I battled with the
temptation to surrender. My bodily powers rose in obedience to my
guiding brain, and extricating myself none too gently from the
already twining arms of the maiden, I caught her with my right palm a
resounding box on the ear which echoed through that sylvan silence.
At the same moment I shouted aloud, and leaped to my feet. It was
as if scales had fallen from my mental eyes, for I could sense, even if
I could not actually see the enclosing hedges filled with spies, some
of whom were hurrying stealthily hence, whilst others were preparing
to enter the alley in as natural a manner as they could assume.
These latter came forward sheepishly and stood before me, as I
pointed to the grovelling form of the girl who was now weeping
violently at my feet. Whose duty was it, I asked, to prevent strange
women from invading these gardens and disturbing the noontide
repose of the Child of the Sun? As to my late reception of the
charmer, even assuming that every motion of mine had been
carefully observed by this battalion of eavesdroppers, there could be
no question as to the final rebuff her advances had encountered. Her
shriek of dismay and the scarlet flush on her pale cheek were at
least sufficient witnesses of the fact that I had not fallen into the trap
that had been so elaborately prepared for my ensnaring. Without
proof positive I had good reason to imagine that many of the persons
concealed in the bushes were not spies at all, but admirers and
supporters of my own, who had been specially invited hither to test
my fallibility. If such were the case, the Arch-priest and his satellites
must have received a distinct shock over this conspicuous
miscarriage of their scheme concocted for the express purpose of
alienating and disgusting those members of the council who upheld
my honour and integrity.
Quivering with an anger that I did not attempt to dissemble, I left the
open-mouthed group beside the girl who was still sobbing
hysterically on the ground. As for her, why should I waste a tittle of
compassion on her misfortune? Are not all creatures and tools of
cunning politicians always treated with contumely both by employers
and unmaskers when their ignoble missions fail? With indignant
mien therefore I strode from the gardens and retired to the palace,
where I gave the captain of the royal bodyguard a rating for his
alleged lack of vigilance. One result at any rate this plot secured for
me, and that was a complete freedom from further molestation
during the remainder of the period before the coming festival. A
further interview with Marzona however soon after this incident only
made me perceive yet more clearly the utter impossibility of my
arriving at any compact with an implacable and unscrupulous enemy,
who was merely biding his time to strike again and strike harder. It
was in vain that I essayed overtures; all my attempts at
understanding and conciliation were met with an icy condescension
that made my task obviously hopeless; and indeed from this time
forward the Arch-priest rarely gave me the opportunity of an
interview save in the presence of other colleagues.
IV
At length the expected date of my official rejuvenating process
arrived, to which I submitted with unusual docility. Despite the
murderous intentions of Marzona, I endured the subsequent plunge
into the fountain without trepidation, although I dared not face the
baleful eyes of the personage whose malignity was rendered
powerless for this occasion by the inevitable laws of Meleager. I
fancied I could detect an air of quiet reassurance to myself in the
bearing of the two inferior councillors; but in any case I swallowed
my apprehensions to the best of my ability and entered that
malodorous but invigorating fluid with a firm bearing. I duly obtained
my reward, for when I emerged all dripping from the seething pool, I
experienced a buoyancy of mind and body beyond that of any
previous occasion. Thus refreshed and refortified, I deemed myself
capable of taking the initiative, and so cheerful and confident did I
feel that I was almost tempted to snap my fingers in that saturnine
face as it grimly surveyed my drying and dressing. Before ever I
quitted the baptistery, several schemes of policy, and even of
escape, began to invade my brain, so that I longed to be alone with
my own thoughts; nor did many days elapse before I had
adumbrated a certain scheme of procedure.
This plan was, it is true, somewhat shadowy in its outline, but it was
founded on the assumption that any active effort on my part was
preferable to mere stagnation, to a passive courting of future
disaster. My idea too was of a dual nature, for it aimed both at self-
preservation and also at an unveiling of The Secret. For some time
past I had been speculating on the uses of Mount Crystal with its
temple of the Altar of the Sun, and from many items of information I
had acquired in devious or accidental ways, I had come to the
certain conclusion that on this rocky peak was to be sought the key
of the mystery. A presentiment, that was already become an article
of faith to me, told me that by penetrating hither even at a venture, I
should be pursuing the sole avenue leading to ultimate escape, to
regained liberty, to a safe return to Earth. In my fresh exuberance of
mentality I kept arguing to myself that as my translation to Meleager
had been successfully accomplished, so also there existed a
chance, however difficult, of my returning safe to my original
domicile. My immediate object therefore was to enter that distant
temple on the shoulder of the mountain, which I could descry from
my palace windows; the goal once attained, I must trust further to my
sharpened wits. The spirit of adventure flamed hot within me, so that
I found some difficulty in concealing my vigorous excitement under
an air of lazy indifference.
My first piece of preparation caused me to smile inwardly, but it at
least implied belief in a successful issue of my plan. It consisted in
extracting a number of gems from various ornaments which had
been bestowed on me for the decoration of my person, had I been
so minded. From these I cautiously removed a quantity of sapphires,
alexandrites and other precious stones, which I enclosed in a small
leather bag attached to a stout gold chain round my neck. Without
such a reserve of potential capital I scarcely relished the prospect of
my return in the form of a pauper to my native Earth, where that
ancient deity Mammon draws a conspicuous following in every cult,
and is likewise the leading, if not the sole, guide of the irreligious.
Without the possession of such a talisman, I knew I should be liable
to exposure to many ills and indignities; and I congratulated myself
on my forethought in this measure of precaution, and also on my
retentive memory concerning the universal conditions of the Earth at
the date of my removal.
Having completed this minor preliminary detail, I proceeded to
greater things. Now the sacred mountain stands at a considerable
distance from Tamarida, and in no case would it have been possible
for me (setting aside the existence of watchers and spies in the
palace itself) to make my way thither within the few hours of
darkness on which I was compelled to rely for the execution of my
plan. I therefore decided to pay a visit to a nobleman named Lotta,
who owned an estate that was bounded by the ravine separating the
area of Mount Crystal from the mainland. For the mountain itself is a
peninsula, washed on three sides by the sea, whilst the fourth side
consists of a long narrow arid gully which is crossed at one spot by a
viaduct. The precincts of Mount Crystal are, as I have already said,
the property of the hierarchy, and nobody is permitted to enter this
reserved domain save the councillors and their servants, who
approach by this solitary bridge. In vulgar esteem the thick forests
and rocky glens of the forbidden space are haunted by evil spirits, so
that I felt sure no Meleagrian of the people would venture to scale its
precipitous slopes, even by daylight; whilst no noble would naturally
intrude on this sacrosanct spot. From these deductions therefore I
concluded that the sole means of ingress, the viaduct, was not likely
to be guarded with any great strength or vigilance, seeing how little
fear of a trespasser there must be on the part of the custodians of
the place. Having reasoned so far, I had also formed the opinion
that, the bridge once safely traversed, there would be little to hinder
my speedy arrival at the temple itself, beyond which my present
calculations did not extend.
Not many days after the solstice therefore I set forth, accompanied
only by Zulàr, on my proposed visit to the country house of my
indicated host who received me with every sign of satisfaction and
respect. I had paid several visits here in the past, so that my present
resolution could not, and indeed did not, excite the smallest
suspicion on the part of my enemies, who were in no wise disturbed
by my departure from the palace. On the second evening of my visit I
was talking to young Bávil, my entertainer's son and heir, a special

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Fresh Water in International Law 2nd

Edition Laurence Boisson De

1. Introduction: Fresh Water and Its Features  1

II. Water, international trade, and investment law  96

VI. Human needs, public participation, and access to water and

IV. Non-​state actors and water disputes  284

Selected Bibliography  327

ABC Abyei Boundaries Commission

GEF Global Environment Facility

PCIJ Permanent Court of International Justice

PERMANENT COURT OF INTERNATIONAL JUSTICE

INTERNATIONAL COURT OF JUSTICE

* Cases are listed in alphabetical order.

PERMANENT COURT OF ARBITRATION

INVESTOR-​S TATE ARBITRATIONS

WORLD TRADE ORGANIZATION DISPUTE SETTLEMENT BODY

China—​Measures Related to the Exportation of Various Raw Materials, Report of the

EUROPEAN COURT OF JUSTICE

EUROPEAN COURT OF HUMAN RIGHTS

INTER-​A MERICAN COURT OF HUMAN RIGHTS

The Environment and Human Rights (State Obligations in Relation to the

AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

UNITED NATIONS HUMAN RIGHTS COMMITTEE

I. Water challenges: a contextual overview

Agenda for Sustainable Development’ (25 September 2015).

of accessible water—​around 98% of it6—​is neither suitable for human consump-

World Water Development Report [online report], 68, http://​unesdoc.unesco.org/​images/​0012/​001297/​

Sources of additional concern are the squandering and degradation of water

on Inequalities (UNICEF/​ WHO, June 2019) [electronic report], https://​www.unicef.org/​reports/​

II. The finite character of water

A fundamental characteristic of the hydrological cycle15 is that it has no beginning

Sci. Discuss., 20 March 2020, https://​doi.org/​10.5194/​hess-​2020-​120.

by way of evaporation, evapotranspiration, condensation, precipitation, runoff,

Data on World Meteorological Day’ [website], 23 March 2020, https://​news.un.org/​en/​story/​2020/​03/​

III. Water opportunities: a disciplinary inquiry

Institutionalization trends in fresh water governance are also noticeable. The

16th Rhine Ministerial Conference, 13 February 2020, https://​www.iksr.org/​fileadmin/​user_​upload/​

University Atlas of International Freshwater Agreements’ [website], http://​www.transboundarywaters.

issues, it certainly contributes to the means of finding and reaching solutions to

II. International watercourses and their uses

While attempts at regulation are abundant and time-​honoured—​the oldest dating

2 Tutohu Whakatupua, The Crown-​ Whanganui (2012), www.wrmtb.co.nz/​new_​updates/​

The Guardian (21 March 2017), https://​www.theguardian.com/​world/​2017/​mar/​21/​

The Guardian (28 February 2019), https://​www.theguardian.com/​us-​news/​2019/​feb/​28/​

Umma’ (2020) Yearbook of International Environmental Law (forthcoming).

A. International watercourses and boundary

1. A variety of methods

Programme guide books series (forthcoming, 2021), available at http://​www.aubis.peaceau.org/​en/​

2 of the judgment, and is also cited by the Court in para 17.

2. Human needs and boundary delimitation

lumière de la jurisprudence de la Cour internationale de Justice’ in L. Boisson de Chazournes and V.

. . . to resort to the concept of equity in order to modify an established frontier

22 Frontier Dispute (Burkina Faso/​Niger), Judgment [2013] ICJ Rep 44.

554, para 149.

554, para 63.

Democratic Republic of Ethiopia of 13 April 2002, 41 ILM 1057.

1. Cameroon, after the transfer of authority to it by Nigeria, guarantees to

B. International watercourses and navigation

Navigation activities constitute one of the oldest forms of utilizing international

Guinea Intervening), Preliminary Objections [1998] ICJ Rep 275.

3. Electronic version available at http://​www.cameroon-​info.net/​stories/​0,17737,@,greentree-​accord-​

and the freedom of navigation on international rivers.39 The regime of freedom

108–​17, containing provisions relating to navigation on the international watercourses of signatory

1. Introduction: Fresh Water and Its Features 1

II. Water, international trade, and investment law 96

IV. Non-state actors and water disputes 284

Selected Bibliography 327

INVESTOR-S TATE ARBITRATIONS

China—Measures Related to the Exportation of Various Raw Materials, Report of the

INTER-A MERICAN COURT OF HUMAN RIGHTS

of accessible water—around 98% of it6—is neither suitable for human consump-

World Water Development Report [online report], 68, http://unesdoc.unesco.org/images/0012/001297/

on Inequalities (UNICEF/ WHO, June 2019) [electronic report], https://www.unicef.org/reports/

Sci. Discuss., 20 March 2020, https://doi.org/10.5194/hess-2020-120.

Data on World Meteorological Day’ [website], 23 March 2020, https://news.un.org/en/story/2020/03/

16th Rhine Ministerial Conference, 13 February 2020, https://www.iksr.org/fileadmin/user_upload/

University Atlas of International Freshwater Agreements’ [website], http://www.transboundarywaters.

While attempts at regulation are abundant and time-honoured—the oldest dating

2 Tutohu Whakatupua, The Crown- Whanganui (2012), www.wrmtb.co.nz/new_updates/

The Guardian (21 March 2017), https://www.theguardian.com/world/2017/mar/21/

The Guardian (28 February 2019), https://www.theguardian.com/us-news/2019/feb/28/

1. A variety of methods

Programme guide books series (forthcoming, 2021), available at http://www.aubis.peaceau.org/en/

2. Human needs and boundary delimitation

22 Frontier Dispute (Burkina Faso/Niger), Judgment [2013] ICJ Rep 44.

3. Electronic version available at http://www.cameroon-info.net/stories/0,17737,@,greentree-accord-

108–17, containing provisions relating to navigation on the international watercourses of signatory

sion available at http://www.ccr-zkr.org/.

sion available at http://internationalwaterlaw.org/documents/intldocs/ILA_Berlin_Rules-2004.pdf.

Boisson de Chazournes (eds), International Watercourses—Enhancing Cooperation and Managing

sion available at http://internationalwaterlaw.org/documents/intldocs/ILA_Berlin_Rules-2004.pdf.

1. Legal aspects of fishing activities

Judgment, PCIJ Reports 1929, Series A, No 16, 27–8.

1994), Art II(f). Electronic version available at http://www.fao.org/fileadmin/user_upload/legal/docs/

2. Human needs, fishing activities, and the contours of a legal regime

ICJ Rep 213, paras 134–44.

compartidos entre Estados y el derecho internacional’ [online article], http://www.iadb.org/intal/

version available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/8_5_2008.pdf.

Reports, Volume 1: Early Decisions (Cambridge University Press, 1999), 543–9.

Non-Navigational Uses (2nd edn, Oxford University Press, 2007), 76–111.