Max Planck Encyclopedia of Public International Law, E Franckx

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Content: OXFORD PUBLIC (international law Max Planck Encyclopedia o f Public International Law
Estuaries Erik Franckx
Content type: Encyclopedia Entries Article last updated: June 2007
Product: Max Planck E ncyclo p e d ia o f Public In te rn a tio n a l Law [MPEPIL]
Subject(s): Pollution -- Bays -- UNCLOS (UN Convention on the Law o f the Sea) -- Delim itation -- marine environment, protection -- Rivers Published under the auspices o f the Max Planck Institute fo r C om parative Public Law and International Law under the direction o f Rudiger Wolfrum.
From: Oxford Public International Law ( http://opil.ouplaw.com). (c) Oxford University Press, 2013. A ll Rights Reserved. Subscriber: G ent University; date: 17 June 2014
A. Notion 1 Although w ell-established in scientific literature, the m eaning o f the term ' e s tu a ry ' has attracted only lim ited consideration in international law. Scientific literature has defined it as 'denoting a sem i-enclosed coastal body of water which has a free connection with the open sea and within which sea w ater is m easurably diluted with fresh w ater derived from land drainage' (Cam eron and Pritchard). A glossary drawn up to assist the understanding o f the 1982 United Nations Convention on the Law o f the Sea ('UN Convention on the Law o f the Sea') defines the term as follows: 'The tidal m outh o f a river, where the seaw ater is m easurably diluted by the fresh w ater from the river' (A Manual on Technical Aspects o f the United Nations Convention on the Law o f the Sea A ppendix I: Glossary, para. 32; see also Law o f the Sea). 2 Salinity form s the basis of a well-established definition of an e s tu a ry used by m ost estuarine scientists. A ccording to accepted practice in the scientific co m m u n ity, in this transitional area, any waters with a salinity level of between 5 and 34 parts per thousand are generally considered to be estuarine. A nother criterion is found in the topography test, based on features relating to the ch a ra c te r o f the waters, such as tidal m o ve m e nts and sedim ents. E stu aries are often known as bays, lagoons, harbours, inlets, or sounds (Bays and Gulfs). However, not all w ater bodies addressed by those names are necessarily e stu arie s . B. Estuaries in the Legal Sphere 3 In the legal sphere, the term surfaced during the preparations o f The Hague Codification Conference of 1930 (see also Law o f the Sea, History of). Since several countries had indicated their desire that rivers flowing directly into the sea without an e s tu a ry should be considered inland waters, irrespective o f the ir breadth, this was included in the Basis o f Discussion a t 18, to which the following sentence was added: 'If a river flows into an e s tu a r y , the rules applicable to bays apply to the e s tu a r y '. This provision, restricted to single State e s tu a rie s , found its way into the report o f Sub-C om m ittee II o f the Second C om m ittee and was taken up by rapporteur JPA Franзois in his preparation fo r the 1958 Convention on the Territorial Sea and the Contiguous Zone (see also C onferences on the Law o f the Sea; Territorial Sea; Contiguous Zone). In a co m m e n t, the International Law Com m ission (ILC) expressed its uncertainty since it lacked sufficient geographical data to appreciate the im p a ct o f this provision on all e s tu a rie s and one country had particularly raised the specific issue o f the River Plate. During the co nference itself, the United States of Am erica ('US') pointed at the lack of a precise legal or geographical meaning of the term ' e s tu a ry ' and argued that reference to the concept of bays was superfluous because the latter would apply anyway if a particular e s tu a ry fulfilled the requirem ents o f a juridical bay. The provision passed the First C om m ittee, but not the plenary session, where it was defeated. It is nevertheless interesting to point o u t the difference which exists in this re sp ect between the English te x t on the one hand, and the French on the other, fo r the latter has retained the term in the first paragraph o f Art. 13: 'If a rive r flows d irectly into the sea' corresponds with ' [s]i un fleuve se jette dans la m e r sans fo rm e r d 'e stu a ire '. The Russian and the Spanish authentic texts rather follow the English structure. 4 Against this background, the rule has developed that when rivers form an e s tu a r y , their baselines are determ ined under the provisions relating to juridical bays. This was confirm ed by national c o u rt decisions, first by the US Suprem e Court in the United States v California Cases, where the Court stated in early 1966 th a t '[a ]n e s tu a ry o f a rive r is treated in the sam e way as a bay' (United States v California [Supplem ental Decree] para. 4 (d)), and a few months later by British courts having to decide w hether broadcasting activities from a structure in the Tham es e s tu a ry about 5 nautical miles ('nm ') from the nearest coast, fell under the 3nm jurisdiction claim ed a tth a ttim e by the United K ingdom .The British c o u rt finally held th a t these activities had taken place in internal waters, thus accepting th a t the Tham es e s tu a ry could be closed o ff by a closing line since it constituted a juridical bay. It should nevertheless be noted th a t by m aking use of the concept of juridical bays, the latter's im perfections are also taken over such as the unanswered question o f how to treat e s tu a rie s the coasts of which belong to two or more States. From: Oxford Public International Law ( http://opil.ouplaw.com). (c) OXFORD UNIVERSITY PRESS, 2013. A ll Rights Reserved. Subscriber: G ent University; date: 17 June 2014
5 The term resurfaced during the preparations fo r the UN Convention on the Law o f the Sea, but in two different spheres, nam ely anadrom ous fish species on the one hand and pollution, especially land-based pollution, on the other. Only Romania tried to follow up on, and even further develop, the legal discussions o f the term during previous codification attem pts by subm itting draft articles on delim itation o f which the ve ry last sentence read: 'The term inal point of a river frontier shall be considered as the im m ediate confluence of the river and the sea, irrespective of whether the river flows into the sea in the form o f an e s t u a r y ' ('R om ania: D raft Articles on Delim itation o f Marine and Ocean Space' Third United Nations Conference on the Law o f the Sea [23 July 1974] UN Doc A/CONF.62/C.2/L.18). This proposal did not m eet with success, for the 1982 Convention on the Law o f the Sea, e xce p t for the French version of Art. 9 that was taken o ver from the 1958 Convention on the Territorial Sea and the Contiguous Zone as explained above, only refers to e s tu a rie s in two particular instances. First, when defining 'pollution o f the m arine e n viro n m e n t' as m eaning 'the introduction by m an...of substances or energy into the m arine environm ent, including e s tu a rie s ' (Art. 1 (4) UN Convention on the Law o f the Sea), and second, when providing th a t States are required to adopt laws and regulations and other necessary m easures to prevent, reduce, and control pollution from land-based sources, including rivers and e s tu a rie s (ibid Art. 207 (1) and (2)). The reference to e s tu a rie s with re sp ect to the life cy c le o f salm on only m ade it into a Working Paper o f the Second C om m ittee. Since States are to a c t in particular through co m p e te n t international organizations o r a diplom atic co nference in order to e n d e avo u r to establish global and regional rules, standards and recom m ended practices with respect to land-based pollution, the notion ' e s tu a ry ' is often encountered in international e nvironm ental instrum ents, such as the 1992 Convention on the Protection o f the Black Sea against Pollution o r the 1995 Global Program m e o f Action for the Protection o f the Marine Environm ent from Land-Based Activities. The term also figures in EC law, eg D irective 92/43/EEC on the C onservation o f natural habitats and o f Wild Fauna and Flora ('Habitats D irective'). But in none o f these instrum ents is the term ' e s t u a r y ' defined. C. Estuaries in the European C o n text 6 In the European context, the question o f the m eaning o f the term ' e s t u a r y ' arose in 1996 before the English High Court, which, fo r the first tim e, provides guidance as to the judicial characteristics of an e s tu a r y . At the heart of the dispute was the co rre ct way of establishing the o uter lim it o f an e s tu a ry in accorda n ce with the definitions o f ' e s tu a ry ' and 'coastal w aters' in EEC D irective 91/271 concerning Urban W aste W ater T reatm ent. The conditions fo r certain w ater discharges were m uch m ore restrictive, and thus costly, in e s tu a rie s than in coastal waters. For the purpose o f this D irective, M em ber States o f the European (E conom ic) C om m unity (EC) are required to establish the o ute r seaward lim its o f e s tu a rie s . It defines ' e s tu a rie s ', as to the nature of the receiving waters, as 'the transitional area at the mouth of a river between fresh water and coastal waters' (Art. 2 (12) Directive 91/271). 'Coastal waters' are defined as 'the waters outside the low-w ater line o r the o ute r lim it o f an e s t u a r y ' (Art. 2 (13) D irective 91/271). No definition o f 'fresh w ater' is provided, nor is there any specification on which criteria to apply when establishing an outer estuarine limit. In this case, the defendant took the view th a t in addition to salinity or topography, the cost of treatm ent of the waste water could also be considered when determ ining what constitutes an e s tu a r y . For that reason, the Secretary of State had chosen two bridges o v e r the H um ber and the Severn e s tu a rie s as the ir outer boundaries in the fra m e w o rk o f this D irective--fo r the fo rm e r this is about 43km furthe r inland-- allowing the m unicipalities to discharge waste w ater beyond this point without having to com ply with the m ore stringent and expensive requirem ents of secondary treatm ent. The judge did not interpret the Directive as confining the member states to the criteria of salinity or topography when establishing outer estuarine limits. These were not the only re le van t considerations which could be taken into account when making a 'genuine and rational assessm ent...of what actually constitutes an e s tu a ry ' (R v S ecreta ry o f S tate fo r the E nvironm ent, e x p a rte Kingston upon H u ll C ity Council and R v Secretary o f State for the Environment, ex parte B ristol C ity Council and Woodspring D istrict Council 344). However, the cost of treatm ent of waste water was not a relevant consideration in th a t exercise. The English High Court seem s to have been guided by a teleological interpretation since the Directive distinguished between e stu aries and coastal waters exactly because the latter have a better capacity to assimilate the discharge of waste water. From: Oxford Public International Law ( http://opil.ouplaw.com). (c) Oxford University Press, 2013. A ll Rights Reserved. Subscriber: G ent University; date: 17 June 2014
7 Moreover, the d ire ctive's pream ble referred to a 1988 EEC Council Resolution adopted pursuant to the 1987 Second International Conference on the Protection of the North Sea. The Ministerial Declaration o f th a t co nference supported the distinction between e s tu a rie s and coastal waters in taking precautionary action to protect the m arine environm ent. The principal convention on which such m easures are based was the 1974 Paris Convention fo r the Prevention o f Marine Pollution from Land-Based Sources ('Marine Pollution Convention'). The latter defined the 'm aritim e area' for establishing the geographical co verag e o f the convention, as extending in the case of w atercourses up to the 'freshw ater lim it', which is defined as 'the place in the w atercourse where, a t low tide and in a period o f low freshw ater flow, there is an appreciable increase in salinity due to the presence o f seaw ater' (Art. 3 Marine Pollution Convention). Identical form ulations were found in a num ber of subsequent agreem ents on land-based sources of marine pollution, recognizing salinity as a relevant criterion in differentiating between these separate bodies o f water. D. Estuaries and International W atercourses 8 The term has also found a new field o f expansion in the area o f the law o f international watercourses. Since the adoption o f the 1997 Convention on the Law o f Non-Navigational Uses of International W atercourses, where in Art. 23 on the protection and preservation o f the m arine environm ent e stu arie s are explicitly included, this has served as an exam ple for other regional agreem ents, eg in Art. 4 (2) (d) o f the 2000 Revised Protocol on Shared W atercourses in the Southern A frican D e velopm ent C om m unity (SADC), and the co ncrete rive r basin agreem ents concluded under its auspices, eg the 2002 Interim A gre e m e n t fo r Co-operation on the Protection and Sustainable Utilisation of the W ater Resources of the Incomati and Maputo W atercourses, between M ozam bique, South Africa and Swaziland, where the e s tu a rie s are not only included in the definition o f these rivers, but where in cases o f drought, the estuarine ecosyste m s will only suffer in the last resort as specifically provided in Annex I Arts 4 (5) [Inco m a ti] and 6 (5) [Maputo]. Much scientific research has already been done as to the effect of water use upstream and dam building on the downstream estuarine ecosystem of the Incomati, for instance, suggesting that e s tu a rie s o f rivers, and the ir e cosystem s, should receive a m ore pro m in en t role in the quest o f the parties to arrive at an equitable and reasonable utilization of the water resources, as provided in Art. 3 (b) o f the latter a g ree m e n t (Equitable Utilization o f Shared Resources). E. Conclusion 9 The conclusion therefore seem s to be justified tha t e s tu a r ie s -- which by their ve ry nature belong as m uch to the freshw ater regim e as to the seaw ater regim e-- have in law fo r a long tim e been treated in a stepm otherly fashion by freshw ater law as well as the law o f the sea, being located at the outskirts of both disciplines. At present, only a scientific definition of the term ' e s tu a ry ' exists at the international level, not a legal one, even though more and more legal d ocum ents appear to m ake use o f it. Select Bibliography DW Pritchard 'Estuarine H ydrography' (1952) 1 A dvances in G eophysics 243-80. Find it in yo ur Library WN C am eron and DW Pritchard ' E stu aries ', in MN Hill (ed), The Sea (W iley New York 1963) vol 2, The C om position o f S ea-W ater C om parative a nd D e scrip tive O ceanography. Find it in yo ur Library ED Brown 'D elim itation o f Maritime Frontiers: Radio Stations in the Tham es E s tu a ry ' (1966) 2 AustYBIL 99-113. Find it in y o u r Library RSK Barnes and J Green (eds) The E stuarine E n viro n m e n t (applied science Publishers Barking 1972). Find it in y o u r Library RD Hayton, The Freshw ater-M aritim e Inte rfa ce: Legal and In s titu tio n a l A spects (Food and A griculture O rganization o f THE UNITED NATIONS Rome 1990). Find it in y o u r Library C Blatch ' Estuaries and Coastal W aters-- Establishing the Limits: R v S ecretary o f State for the E nvironm ent ex parte Kingston-Upon-Hull C ity Council and R v Secretary o f State for From: Oxford Public International Law ( http://opil.ouplaw.com). (c) Oxford University Press, 2013. A ll Rights Reserved. Subscriber: G ent University; date: 17 June 2014
the E nvironm ent ex parte B ristol C ity Council and W oodspring D is tric t C ouncil' (1996) 8 Journal o f E nvironm ental Law 336-53. Find it in y o u r Library PJ Sands and C Blatch ' E stu aries in European C om m unity Law: Defining Criteria' (1998) 13 IJMCL 1-22. Find it in y o u r Library IHO, IAG, and IOC A dvisory Board on Law o f the Sea (ABLOS) (eds) 'A ppendix I: G lossary', in A Manual on Technical Aspects o f the United Nations Convention on the Law o f the Sea-- 1982 (4th ed International Hydrographic Bureau Monaco 2006). Find it in y o u r Library Select Documents Conference for the Codification o f International Law (13 March 1930), 'First Report Submitted to the Council by the Preparatory Com m ittee fo r the Codification C onference' (1930) 24 AJIL Supp 1. Convention fo r the Prevention o f Marine Pollution from Land-Based Sources (done 4 June 1974, entered into force 6 May 1978) 1546 UNTS 120. Convention on the Law of the Non-Navigational Uses of International W atercourses (adopted and opened fo r signature 21 May 1997, not y e t entered into force) (1997) 36 ILM 700. Convention on the Protection o f the Black Sea against Pollution (concluded 21 April 1992, entered into force 15 January 1994) 1764 UNTS 3. Council Directive 91/271/EEC of 21 May 1991 concerning Urban W aste-W aterTreatm ent [1991] OJ L135/40. Council Directive 92/43/EEC o f 21 May 1992 on the Conservation o f Natural Habitats and of Wild Fauna and Flora [1992] OJ L206/7. E stu ary Restoration A c t (7 N ovem ber 2000) (2000) 33 USC para 2901-09. R v Secretary o f State for the Environm ent, ex parte Kingston upon H ull C ity Council and R v Secretary o f State for the Environment, ex parte B ristol C ity Council and Woodspring D is tric t C ouncil UK Queen's Bench Division (26 January 1996) [1996] E nvironm ental Law Reports 248. Find it in y o u r Library 'Romania: Draft Articles on Delimitation of Marine and Ocean Space between A djacent and Opposite Neighbouring States and Various Aspects Involved' Third United Nations Conference on the Law o f the Sea (23 July 1974) UN Doc A/CONF.62/C.2/L.18. Tripartite Interim A greem ent between the Republic of Mozambique and the Republic of South Africa and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the W ater Resources of the Incomati and Maputo W atercourses (signed 29 August 2002) United Nations Convention on the Law o f the Sea (concluded 10 D e ce m be r 1982, entered into force 16 N ovem ber 1994) 1833 UNTS 3. United Nations E nvironm ent Programme, 'Global Program me o f Action for the Protection of the Marine E nvironm ent from Land-Based A ctivities' (5 D e ce m be r 1995) UN Doc UNEP(OCA)/LBA/IG.2/7. UN, 'R eport o f the International Law C om m ission Covering the W ork o f its Seventh Session' (2 M ay-8 July 1955) GAOR 10th Session Supp 9. U nited States v C alifornia (Supplem ental Decree) United States Supreme Court (Washington DC 31 January 1966) (1966) 5 ILM 205. From: Oxford Public International Law ( http://opil.ouplaw.com). (c) Oxford University Press, 2013. A ll Rights Reserved. Subscriber: G ent University; date: 17 June 2014

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