The Challenge of Sustainability
New Horizons in Environmental and Energy Law series
Chapter 9: Norms in Interstate Agreements
INTRODUCTION The normative structure of arrangements between states with an interest in a common or shared water resource depends to some extent upon the relationship between two of the fundamental principles of international law. On the one hand there is the principle of the permanent sovereignty of states over their natural resources and on the other hand the principle that pacta sunt servanda. The obligation to comply with consensual arrangements may be seen in two different ways. The power to enter into agreements, and hence to be bound by them, may be taken to be an exercise of the right of sovereignty. Alternatively it may be seen as a restriction upon the exercise of the right of sovereignty. The first is positive and the second is negative. The acceptance of restrictions in this negative sense can be justified in the context of sovereignty as the outcome of the exercise of a right of sovereignty rather than the existence of the right in the first instance. Perhaps even more important for present purposes is the principle of the equitable and reasonable use of international watercourses. This principle is and can only be a substantive restriction, not only upon an exercise of the right of sovereignty but also upon the normative substance of consensual arrangements entered into in exercise of this right of sovereignty. If this a correct analysis, then the validity of consensual arrangements entered into between states depends upon their compliance, or at least concordance, with this principle. Consensual arrangements...
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