great thanxxx john for these advances & suggestion & demand for updated discussion

& i would guzzle any stray drafts from the previous fantastic discussion

should they ever trickle out

but for now let me just perhaps go back upstream a bit regarding the terms thalweg & boundary

the 3 different possible meanings of thalweg in relation to boundaries appear to be

the succession of deepest points or the deepest continuous line in the river bed

the main channel used by navigators when traveling downstream

the median line of that main channel

the first of these

tho it may actually be a rationalization of the second

at least appears to convey the simplest & most basic possible sense of the word

while the others appear to be progressively derived from it

& tho the second meaning may well be the most commonly used cited & understood today in relation to boundaries

& is sometimes even considered to be its only proper legal definition

nevertheless it is by no means the universal necessary or exclusive meaning

indeed for purposes of boundary delimitation

a channel

especially a major navigational channel

would seem to have the glaring defect of not being a purely linear feature at all

& of thus producing only an absurdity in that regard

even if it is the legal standard

which i therefore doubt

for indeed the breadth of a channel suits it far less to be a boundary than a frontier

in fact

let me say it

a channel cant be a boundary line at all

& no matter whether the frontier zone it produces has de jure or de facto a condominial character or a nondominial character

or whether it is even noticed or ignored

it is still not a line but an area

& a physical fact bound to have consequences a mere line wouldnt have

perhaps equally important to notice & distinguish from the start is the fact that downstream navigation channels dont always follow the deepest & steepest line

so thalweg can mean not just 2 but 3 different things at once side by side in the same river if its intended meaning is not stated

notable too is the fact that thalweg boundaries sometimes occur in nonnavigable rivers

& sometimes extend above the height of navigation in navigable ones

notwithstanding that it may seem nonsensical for them to do so

& in such locations the term thalweg couldnt possibly have navigational significance but could only have the first of the meanings stated above

despite the expressly navigational sense it may also have farther downstream

another glitch built into the second & third definitions is the fact that the full lateral extent of a navigation channel is often highly variable & or uncertain

& is thus often unknown or unknowable

much the same as the location of the precise center line of such a channel

& like all delimitations based on channels generally

most delimitations based expressly on center lines of channels

tho on true lines at least

would still appear to be only hypothetical & approximative guesses at best

& so they too still smack more of frontiers than of true boundaries

their uncertainty may simply be less extreme or extensive than that of the full channels

but in addition to that uncertainty

all 3 senses of thalweg enjoy equally & alike the uncertainty of dynamic nature

except perhaps where navigation channels are cast in concrete

well

i dont mean to flood yall either

especially while traveling upstream

but i do believe at least that much really had to be said up front

& then i would say let the games begin

best

--- On Thu, 9/23/10, John W. Donaldson <[log in to unmask]> wrote:

From: John W. Donaldson <[log in to unmask]>
Subject: [INT-BOUNDARIES] FW: Thalweg boundaries
To: [log in to unmask]
Date: Thursday, September 23, 2010, 4:45 AM

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 boundary was to have equal access 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.

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