<https://fr.coursera.org/lecture/droit-international-eau-douce/3-2-1-le-rapport-entre-l-utilisation-equitable-et-raisonnable-des-ressources-en-6h0kz#lecture>
<http://schema.org/transcript>
"MUSIC [MUSIC] Hello Mr. Professor. I would like to ask you a question. What is the legal problem underpinning the relationship between equitable and reasonable use and the obligation to not cause significant harm? >> It is a bit difficult to explain. The question is quite complicated, but I will try. In the past, aquatic resources were plentiful and States hardly used them at all or only part of them. Today it is very different. States need water.  They need to use water. They need to consume water too. And there are so many different uses which can sometimes compete with each other. Take the Nile as an example. The Nile, as we know, in the time of the Pharaohs, was used exclusively by Egypt. That is no longer the case today. Today, there are other States, particularly Ethiopia, which have a role in how this great river is used. And as a result, to avoid conflict, the principle of equitable and reasonable use is applied. So each riparian has a share and this share is defined by the criteria that is listed in the 1997 Convention. So it's an option. But the principle of not causing harm renders the application of the equitable and reasonable use principle impossible. Because if, let's say, Ethiopia, claims a new use for the river, or increases an existing one, using the river more intensively than before, this will be at the expense of Egypt, which already uses the river to its maximum. Hence, one principle or the other is applied, but both can not be applied at the same time. And this causes a big problem, because then application of the Convention as a whole becomes very difficult. So, how was the problem addressed by the International Law Commission? >> In my personal opinion, it started well >> and it ended badly. It started well because the first rapporteurs, including rapporteur Mr. McCaffrey, made some very reasonable proposals relegating the principal of not causing harm to one of the factors used to calculate, to measure reasonable and equitable use. This would mean that a State, in the case where use is new or increased, can do so without being accused of causing damage to the State which already uses it as long as the damage falls within the concept of equitable and reasonable use. I hope I have made myself understood. So what is your personal interpretation of this report? So the report… What happened next eh, maybe one more thing, I should say that, in practice, since the adoption of the Convention, the Gabcikovo -Nagymaros case appeared before the International Court of Justice. In the verdict, the right to equitable and reasonable use is highly discussed but the principle of not causing harm does not appear. I do not mean to say that this rule does not exist. It does exist. It exists in all neighbourly relationships between States, however, compared to the equitable and reasonable use part, it is not dominant. This is clear in the case I have just quoted. However, it is important to be aware that the Gabcikovo case was tried under customary international law, and, regarding this point, the Convention is very hard to apply. So what should we do? It can be said that the International Law Commission, despite the efforts of two of its rapporteurs, was not very wise in putting the two elements on the same level, and that, in fact, the principle of not causing significant harm had become the dominant factor. Mr. Calero-Rodrigues, a member of the Commission said, this is the fundamental principle and it has been contradicted. But not by everyone, far from it. As a result, one might be tempted to interpret that the Convention gives priority to the principle of not causing harm which makes the Convention largely unworkable and that is the problem. We must interpret this Convention in accordance with the Vienna Convention on the Law of Treaties and based on this interpretation one could argue that equality of the two principles is absurd. >> Thank you Professor. MUSIC"
<https://fr.coursera.org/lecture/droit-international-eau-douce/3-2-1-le-rapport-entre-l-utilisation-equitable-et-raisonnable-des-ressources-en-6h0kz>