State responsibility in international law for transboundary water‐related harm: The emergence of a new ecosystems‐based paradigm?

• DOI: http://doi.org/10.1111/reel.12362
• Author: Owen McIntyre
• Date: 01 November 2020
• Published date: 01 November 2020

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  © 2020 Wiley Periodicals LLC wileyonlinelibrary.com/journal/reel RECIEL. 2020;29:430–441.

1 | INTRODUCTION

While transb oundary harm ca used to the riparian i nterests of States

sharing intern ational watercou rses should le ad to findings of l egal

responsibilit y on the par t of the State causin g or permitt ing such

harm, this has on ly rarely occur red. Whereas t he secondar y rules

on State responsi bility are rea sonably well deve loped and und er-

stood, the pri mary rules of internat ional water law, breach of which

would give rise to Sta te responsibili ty, have to date proven legal ly

indeterminate a nd normativel y unclear. Thus, the d ue diligence

standards of co nduct expec ted of States in ma naging shared wa-

ters have lacked the c larity to support cl aims of State responsibili ty,

which has in turn un dermined States’ reliance on th e doctrine an d

discouraged the practice required to provide such clarity. However,

recent conventional, judicial and arbitral developments regarding

the requirement in international law to protect riverine ecosystems

provide an important degree of guidance regarding such standards

of conduct, th e types of har m which may be compe nsable, and

how any damages might b e calculated . Greater clarit y of this sort

is welcome, considering the important role that State responsibility

might play in guara nteeing the values and commitm ents enshrined

in international water law, which contribute very significantly to

human welfare globally.

This article c ommences by framing the prob lem it seeks to ad-

dress, which invo lves an exploration of w hy State responsibilit y has

not played a greater ro le in transboundary wat er-related dis putes.

It then outline s the role of prima ry and second ary rules of in ter-

national law in the o peration of Stat e responsibilit y, focusing on

the critical i mportanc e of the due diligence s tandards of con duct

expected of watercourse State s under international water law. In

so doing, it notes t he contextual r elevance, and t hus the relative

normative unce rtainty, of such stand ards, which may have discour-

aged reliance to date u pon State respo nsibility. Next , the articl e

examines the n ormative implic ations of the key rul es of interna-

tional water law, highlighting the indeterminate nature of each

and speculatin g on how this has impeded fin dings of State respon-

sibility in wate rcourse disput es. It then focus es more closel y on

the factors d etermining the due diligence ex pected of States and,

particularly, on the contextual determinants which play such a crit-

ically impor tant role in the prim ary rules of internat ional water law.

Prominent amon g these are the ec ological obli gations which pl ay

an increasingly prominent role among the normative commitments

Received: 24 May 2020 

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  Accepted: 27 July 202 0

DOI: 10 .1111/reel .12362

SPECIAL ISSUE ARTICLE

State responsibility in international law for transboundary

water-related harm: The emergence of a new ecosystems-

based paradigm?

Owen McIntyre

Correspondence

Email: o.mcintyre@ucc.ie Abstract

Though one might reas onably expect that trans boundary harm cause d to the riparian

interests of watercou rse States should qu ite easily give rise to fin dings of legal re-

sponsibility on th e part of the State causing such harm , this has rarely been the case.

One reason commonl y advanced is that the primary rul es of international water law,

breach of which would give r ise to State responsibility, are vague and u ncertain as re-

gards their precise normative implications. However, recent developments regarding

the requirement to prot ect riverine ecos ystems and to maintai n related ecosystem

services provid e an important d egree of clarity as re gards the stan dard of conduct

expected of watercou rse States, and the types of harm whi ch may be compensable.

This is welcome consideri ng the important role that St ate responsibility might be pre -

sumed to play in giving ef fect to the values and commitment s enshrined in the rules

and principles of international water law.