Article 32

32.1.2 Availability of private domestic remedies


Private remedies (Article 32) will not always be available immediately or in some cases will not be available at all. The granting of these rights may require the domestic legislation of some countries to be amended because in some countries administrative authorities are only empowered to consider the effects of proposed projects which may occur within the state that established the authorities.465 As noted by the ILC, a prominent watercourse dispute, the Trail Smelter arbitration, was set in motion because the national legislation of the country where the harm originated (Canada) did not grant the right of domestic recourse to those foreign nationals who had suffered damage abroad.466 Conversely in the Pulp Mills Case, it was found the Argentinian citizens enjoyed equal access to remedies and procedures under the national laws of Uruguay as Uruguayan citizens possess in respect of possible transboundary harm.467 Once the UN Convention has entered into force, its incorporation into the national legal system of a state party should imply an automatic adjustment of the national legal system (or the creation of additional implementing legislation by states as per their domestic legislation) to implement the international legal obligations under Article 32 and the procedural right to access could be directly invoked by private foreign nationals without delay.468

For states who are not a contracting party to the Convention and where administrative law is viewed as strictly territorial, foreign citizens may not be protected by domestic law and may not be able to access private recourse in non-contracting states.

Additionally, not all disputes will be able to be solved at the private level and the section on Article 33 of the Convention discusses mechanisms which avoid or resolve disputes between states where private remedies are not available or do not adequately resolve the issues.

465 McCaffrey, The Law of International Watercourses at 510.

466 1994 Draft Articles at 133 and see Trail Smelter Arbitration, 33 AJIL (1939) 182 & 35 AJIL (1942)

467 See 1988 General Code of Procedure and for Commentary Birnie, Boyle and Redgwell, International Law and the Environment at 308.

468 Tanzi and Arcari, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing at 171.

 

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