Article 32

32.1.4 State practice


The principle of non-discrimination is considered to be a broad principle of inter-state relations which includes but is not limited to equal access – Article 32 of the UN Convention does not replicate this broader meaning of the principle and is instead limited to equal access.472

This legal right of non-discrimination and equal access473 to national remedies is not new – there is substantial existing state practice concerning equal access to national legal systems for compensation and relief in respect of damage caused to watercourses. This state practice was in existence before the Convention was adopted and has continued to develop since (a summary of the significant instruments is provided in Figure 6.3). However, state practice is heavily concentrated in Europe and North America and the legitimacy and practicality of non-discrimination and equal access in many other regions has been questioned. This argument is supported by the observation that there is no universal legal instrument in effect that would establish the rule of equal access as a generally recognised principle of international law.474 Conversely, despite there being no universal instrument, given the ILC’s consistent endorsement of the non-discrimination principle and the other precedents listed in Figure 6.3, it might be argued that the principle exists as a general principle of international law.475

472 Vinogradov, ‘Observations of the International Law Commission’s Draft Rules on the Non-navigational Uses of International Watercourses: Management and Domestic Remedies’ at 240.

473 See Vinogradov ‘Observations of the International Law Commission’s Draft Rules on the Non-navigational Uses of International Watercourses: Management and Domestic Remedies’ at 235.

474 Vinogradov ‘Observations of the International Law Commission’s Draft Rules on the Non-navigational Uses of International Watercourses: Management and Domestic Remedies’ at 235.

475 Birnie, Boyle and Redgwell, International Law and the Environment at 306.

 

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