Another interesting point (possibly to the effect that the identification of
general principles in the matter becomes even trickier) is the fact that
'avulsion' as a natural phenomenon and as a legal concept has different
meanings. The one we usually refer to (in river scenarios) is the sudden change
in the course of a river (and/or related features such as the thalweg or
navigable channel tc).
However, the 'original' meaning was (and still is, as it is specifically
foreseen in various Civil Codes of the civil law tradition) more related to the
sudden movement of soil (defined tracts of soil) from one property to another
(possibly from one river bank to the other) as a result of floods or strong
river currents. This does not necessarily change the course of the river, yet
it is avulsion. Roman Civil law in principle did not recognise a change of
property rights in this case. But I suspect that in an international boundary
scenario this type of avulsion, given that the involved areas would likely be
rather minor, would probably be treated as accretion in terms of its border
consequences ... 'Luckily' I guess (?) that this type of avulsion occurrs more
often along small rivers.
Fabio
________________________________
Da: John W. Donaldson <[log in to unmask]>
A: [log in to unmask]
Inviato: Gio 23 settembre 2010, 10:45:01
Oggetto: [INT-BOUNDARIES] FW: Thalweg boundaries
Just to continue the discussion on what I feel is an important on-going issue, I
forward on my message to Gbenga yesterday with some minor additions. The
articles and texts that have been referred to in other messages are very useful
starting points but I would suggest that the issue demands updated discussion.
Great question Gbenga and one that has baffled policy makers and lawyers for
centuries.
The first step is to see what the boundary treaty says about river movement
(will the boundary follow the river or be fixed at a specific date etc.) If the
treaty is silent, then it becomes a bit more tricky. The so-called general rules
of accretion and avulsion may apply, in that unless parties can identify
specific instances of avulsion, then the boundary will follow the river through
accretion. I have been doing quite a bit of research on river boundaries looking
at much of the juridical history of accretion and avulsion going back to Roman
property law and I am not convinced that they are currently recognised as
accepted principles in customary international law. There is plenty of national
jurisprudence on accretion/avulsion (particularly in the US Supreme Court and
English common law) but state practice in international boundary treaties has
not been universally consistent. The ICJ has been very cagey about accretion and
avulsion, and the closest it has come to drawing any conclusions was in the land
section of the El Salvador/Honduras case (and the decision on
interpretation)when the Chamber failed to directly state that avulsion was a
customary rule of international law. The only international decision/arbitral
award I can find that refers directly to accretion and avulsion is the 1911
Chamizal arbitration, which itself was the Mexico-US boundary commissioners with
a Canadian arbitrator. So without distinct ‘rules’ it becomes a matter of
negotiation.
For me the most powerful argument is that if two states choose a thalweg (the
main navigation channel– which I believe in legal terms is its proper
definition) as a boundary, then the intention of both states when agreeing the
boundarywas to haveequalaccess to navigation along the boundary river. In
addition, I would be willing to bet that administrative practices since the
original agreement have observed the river itself as the de facto boundary.
However, if the river has shifted significantly then of course the state that
believes it has ‘lost’ territory will naturally argue that the boundary should
be along the course of the river at the date of the treaty. This gives rise to a
multitude of administrative/management problems when the river no longer
coincides with the boundary and you get bits of territory on the ‘wrong’ side of
the river. Governments are obsessed with having a ‘fixed’ river boundary line
even if it is just a line of coordinates, but they are just deluding themselves
if they believe the river will not continue to move. This obsession with fixing
a boundary river can be taken to ridiculous levels as the canalisation of the
Rio Grande around Juarez/El Paso illustrates with disastrous environmental
effects.
Apologies for the not so subtle marketing ploy but we had a fantastic discussion
about these very issues at the last IBRU workshop Boundaries and Water back in
July.
All the very best,
John
From:International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Gbenga Oduntan
Sent: 22 September 2010 09:30
To: [log in to unmask]
Subject: [INT-BOUNDARIES] Thalweg boundaries
Dear Colleagues,
A Court judgment refers to the thalweg of a river as the boundary between two
countries based on a Century old treaty. In the determination of that boundary
does a demarcation team look for the thalweg as it was a century ago or is it
the thalweg of the river today that applies? My instinct says thalweg boundaries
are dynamic but are there contrary views or am I plain wrong?
Best regards
Gbenga
Dr. Gbenga Oduntan
Lecturer in International Commercial Law,
Kent Law School,
Eliot College,
University of Kent,
Canterbury,
Kent CT2 7NS, UK.
Phone:
Switchboard 0044 (0)1227 764000 (ext 4817)
Direct Line 0044 (0)1227 824817
Fax: 0044 (0) 1227 827831
Email: [log in to unmask]
http://www.kent.ac.uk/law/people/index.htm
