The chapter illustrates the entanglement in international water law between its substantive principles – i.e. equitable utilization and harm prevention – and the procedural obligations that make up a large part of the due diligence contents of such principles as well as of cooperation. First, the procedural obligations in hand will be considered within the context of the procedural principle of cooperation, which is shown to be embedded in both substantive principles. Such considerations will emphasise the distributive justice side of international water law, thus corroborating the increasing dissatisfaction with the case law which has dealt with breaches of procedural obligations separately from substantive ones. Second, the procedural obligations in hand will be illustrated on the substantive level as due diligence standards in relation to the no-harm rule and to the equitable utilization, separately, irrespective of the cooperation context, when cooperation is not possible. Third, the entanglement between the procedural and substantive obligations in question will be further substantiated by the illustration of the integrated relationship between the equitable utilization principle and the no-harm rule. Finally, the integration between procedural and substantive obligations in international water law is shown to enhance the normativity of the substantive international water law principles, both through the catalyst of cooperation and when cooperation is not possible, but also in relation to the possibility that cooperation and agreement would lead to uses departing from the sustainability rationale of both substantive principles.

Substantialising the Procedural Obligations of International Water Law between Compensatory and Distributive Justice

A. Tanzi
2021

Abstract

The chapter illustrates the entanglement in international water law between its substantive principles – i.e. equitable utilization and harm prevention – and the procedural obligations that make up a large part of the due diligence contents of such principles as well as of cooperation. First, the procedural obligations in hand will be considered within the context of the procedural principle of cooperation, which is shown to be embedded in both substantive principles. Such considerations will emphasise the distributive justice side of international water law, thus corroborating the increasing dissatisfaction with the case law which has dealt with breaches of procedural obligations separately from substantive ones. Second, the procedural obligations in hand will be illustrated on the substantive level as due diligence standards in relation to the no-harm rule and to the equitable utilization, separately, irrespective of the cooperation context, when cooperation is not possible. Third, the entanglement between the procedural and substantive obligations in question will be further substantiated by the illustration of the integrated relationship between the equitable utilization principle and the no-harm rule. Finally, the integration between procedural and substantive obligations in international water law is shown to enhance the normativity of the substantive international water law principles, both through the catalyst of cooperation and when cooperation is not possible, but also in relation to the possibility that cooperation and agreement would lead to uses departing from the sustainability rationale of both substantive principles.
A Bridge over Troubled Waters. Dispute Resolution in the Law of International Watercourses and the Law of the Sea
351
374
A. Tanzi
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11585/776579
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