Lucius Caflisch, ‘Assise Théorique Du Droit Des Cours D’Eau Internationaux’ in Règles Générales du droit des cours d’eau internationaux (Martinus Nijhoff, 1989) pp. 48-61 [The theoretical foundations for a law of international watercourses].
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Background
Lucius Caflisch is an eminent Emeritus Professor of International Law at the Graduate Institute of International and Development Studies in Geneva. Born in the Grisons, the easterly part of Switzerland, he excelled in the fields of international law of the sea which during the high days of his career was at the heart of international law in the 1970s and 1980s and led to the conclusion of the 1982 United Nations Convention on the Law of the Sea. Caflisch was instrumental in contributing to the codification, and in particular to key area of maritime boundary delimitation. He was a member of the United Nations International Law Commission working on codifications in international law. He was invited to lecture on the subject of rivers at the Hague academy in 1989.
Summary
This extract is the second chapter from the book Règles Généerales du droit des cours d’eau internationaux. Lucius Caflisch discusses the evolution of different legal theories which lie at the heart of a State’s right to claim its sovereign rights over international water ways. The famous Harmon doctrine (or the theory on absolute territorial sovereignty), which mainly favours upstream countries, as well as the theory on absolute territorial integrity (also sometimes called the doctrine on riparian rights), which mainly favours downstream countries, seem to be outdated and no longer viable in a modern world with limited natural resources. To the extreme of these two theories lies Adam Smith’s on unlimited freedom of navigation of all international water ways. As this doctrine attaches a primordial importance to navigation, to the detriment of other forms of usage of international water ways, it also needs to be set aside.
The most practical theory so far has been the theory of limited sovereignty (or limited territorial integrity). This theory is related to the idea that territorial sovereignty implies rights as well as obligations. It is the theory that best allows putting good neighbourly relations into practice and has been widely confirmed through court practice. Although states are separated through territorial borders, many of them form part of one waterway. Therefore they would be likely to partially seed their sovereign rights in order to form a community of interest. Given the current practice of the exercise of sovereign rights, the international community is still far from acceding to a so called “community” theory and therefore the theory on limited sovereignty is to be confirmed as the most practical and palatable solution.