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The rule about avulsion is applicable in present situation



In Article 38(1) of the Statute of the International Court of Justice among other sources of law applicable to disputes brought before the ICJ the general principles of law recognized by civilized nations are named.

The grounds for legitimacy of general principles derive from three different directions:

– Acceptance in a high number of national legal systems (from where they can be elevated to the level of international law by way of analogy).

– Acceptance directly on the international level (from where they can percolate down into domestic fora), and

– Natural law arguments.

All three arguments are based on a shared understanding that these general principles exist and what they imply, based on an opinio juris communis[20].

In this occasion Respondent considers reasonable to mention Roman law as general principles of law recognised by civilised nations that regulate boundary issues in the event of sudden river course’s changes.

This point of view was frequently included in the compromis of arbitral tribunals in the 19th century[21]. On this basis, arbiters had recourse to principles of private law when confronted with legal lacunae.It could, therefore, be said that the drafters of the Statute of the PCIJ (therefore ICJ) took account of this practice and sanctioned the use of private law principles in international jurisprudence by means of the general principles of law formula[22].

Respondent also realizes that the concept of general principles of law allows for citation of private law only by means of analogy[23]. In addition, one could without doubt agree with Rousseau who regards the passage of Roman law into many national legal systems as an example of common principles which can be applied in relations between States[24].

The conclusionis that a change in the course of a boundary river which is an effect not of accumulationof alluvial deposits and erosion, but of the breaking-through of a new channel does not affect the rights of ownership. In other words, the boundary does not change and follows the old channel of the river.

It can be also an argument that a sudden and violent mutatioalvei cannot be easily predicted and therefore it should not influence the boundary.

The US Supreme Court stated the principle of “avulsion” as follows: “It is settled beyond possibility of dispute that where running streams beyond possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors , namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of stream; while if the stream, from any cause , natural or artificial, suddenly leaves its own bed and forms a new one, by the processes known as avulsion, the resulting change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel”[25].

Cases as examples in USA are: Nebraska v. Iowa (1892)[26]. Followed in Missouri v. Nebraska (1904)[27]; Washingtom v. Oregon, (1908)[28]; Arkansas v. Tennessee (1918)[29]; Arkansas v. Mississippi (1919)[30].

This authority was applies in PereyraIraolo v. Provincia De Buenos Aires[31] of April 11. 1921, which was decided by the Federal Supreme Court of Argentina.

This general principle is enshrined in the Treaty of 1884 between The United States and Mexico[32] the relevant provision of which, is generally regarded as embodying the rule of general international law . This rule was applied by the International Boundary Commission in the Chamizal Case between the two countries, where the Commission, in considering the provision that the boundary should be in the middle of the Rio Grande, was called upon to decide the status of the Chamizal tract formed by virtue of alterations in the Rio Grande. With regard to accreationary changes of the former type, the Commission referred to the “well known principle of international law” according to which “this fluvial boundary would continue notwithstanding modifications of the course of the river caused by gradual accretion on the one bank or degradation of the other bank”.

Boczek defines the accreation and avulsion as a general principle and specifies that “the boundary remains unaffected by avulsion, that is sudden change in the course of river. As a result , the boundary remains in the old dried up riverbed while the river flows in its new bed within the territory of the other country”.[33]

Cukwurah mentions that it is an established rule of international law that the original boundary line of the river does not change even if the center line of the original channel subsequently shifts due to avulsion[34].

Still others specify that the boundary remains with the river whether its course is affected in the future by accretion or avulsion (Lauterpacht, 1960).[35]

In boundary studies, Prescott and Triggs (2008) indicate that “sovereignty will remain as it was if the change arises rapidly by an avulsionAvulsion refers to the violent change in territory through a flood or creation of new islands[36]”.

The boundary remains as it was, in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel[37].


[1]Vienna Convention on the Law of Treaties (1969) Preamble.

[2]Vienna Convention on the Law of Treaties (1969) Art. 26.

[3]Phoenix Action, Ltd v Czech Republic, ICSID Case No. ARB/06/5 (Israel/Czech Republic), Award, 15 April 2009, para 75.

[4]Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, General List No 133, para 47.

[5]Vienna Convention, article 31 para 1.

[6] Vienna Convention, supra note 37, at art. 31(1); BROWNLIE, supra note 40, at 626; Schaffer, supra note 1, at 139.

[7] Vienna Convention, supra note 37, at art. 32; Mehrish, supra note 1, at 62; Schaffer, supra note 1, at 143.

[8] See THE INTERNATIONAL COURT, supra note 4, at 14-17. The Permanent Court of International Justice (PCI) was the predecessor of the IC] and constituted the judicial organ of the League of Nations.

[9] Jones, S.B. 1945. Boundary-making: A guidebook for statesmen, treaty editors and boundary commissioners. Washington: Carnegie Endowment for International Peace.

[10] Kasikili/Sedudu Island (Botswana/Namibia): http://www.icj-cij.org/.

[11] Frontier Dispute (Benin/Niger): http://www.icj-cij.org/.

[12] Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)): http://www.icj-cij.org/.

 

[13]Donaldson, J.W. 2011.Paradox of the moving boundary:Legal heredity of river accretion and avulsion.

Water Alternatives 4(2): 155 – 170P.165.

[14]Phoenix Action, Ltd v Czech Republic, ICSID Case No. ARB/06/5 (Israel/Czech Republic), Award, 15 April 2009, para 75

[15]Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, General List No 133, para 47.

[16]Vienna Convention article 31 para 1.

[17] J. INsT.2.1 57 (Paul Krueger ed., Peter Birks & Grant McLeod trans.) liber 2 title 1, 20. 21.

[18] Bracton, H. de. 1883. Legibus et Consuetudinibus Angliae. Edited by T. Twiss. London: Longman & Co.

[19]Prescott, J.R.V. and Triggs, G. 2008. International frontiers and boundaries: Law, politics and geography. The Hague: MartinusNijhoff Publishers.

[20] AF CHRISTINA VOIGT, DR.JURIS., POST-DOC RESEARCHER, UNIVERSITY OF OSLO, DEPARTMENT .

OF PUBLIC AND INTERNATIONAL LAW: The Role of General Principles in International Law and their Relationship to Treaty Law, RETFÆRD ÅRGANG 31 2008 NR. 2/121

[21]I. B r o w n l i e, op. cit., pp. 15.19.

[22]H. Lauterpah t: Private Law Sources and Analogies in International Law with Special Referenceto International Arbitration, London 1927, pp. 67.68.

[23]Cf. K. Kañska, R. Mañko: ..Alluvio.i .mutatioalvei.. Zastosowanie regu³ rzymskich w prawiemiêdzynarodowympublicznym. [.Alluvio. and .MutatioAlvei.. The Application of Roman Rules in PublicInternational Law], 41 StudiaIuridica131 (2003), pp. 135.136.

[24]C. R o u s s e a u: Principes généraux du droit international public (1944), p. 890.

[25]Arcansas v. Tennessee, 1918, 246 U. S.158 at 173.

[26] Nebraska v. Iowa, 143 U.S. 359 (1892).

[27] State of Missouri v. State of Nebraska, 196 U.S. 23 (1904).

[28] Washingtom v. Oregon, (1908), 211 U.S. 127.

[29] Arcansas v. Tennessee, 1918, 246 U. S.158 at 173.

[30] Arkansas v. Mississippi (1919), 250 U.S. 39.

[31]Ann. Dig. (1919-22), Case No. 62

[32] Treaty of November 12, 1884, 75 B. F. S. P., p. 994.

[33] Boleslaw Adam Boczek . International Law: A Dictionary.

[34]CUKWURAH, supra note 38, at 58 – 59. See generally Nebraska v. Iowa, 143 U.S. 359(1892)

[35] See also 1843 Belgium-Netherlands boundary agreement on the river Meuse and the 1934 Anglo-Siam boundary treaty that defined a section of the Burma-Thailand boundary along "the deep water channel of the River Pakchan, wherever it might be, should always be accepted as the boundary". This is a volte-face from the current 'fixed line' approach taken by Myanmar and Thailand on the Mae Sai river section of their boundary, albeit the fact that the two rivers have different geographic situations. See also the 1911 Anglo-Italian boundary agreement on the mouth of the Juba river and the 1921 Denmark-Germany boundary agreement

[36]Prescott, J.R.V. and Triggs, G. 2008. International frontiers and boundaries: Law, politics and geography. The Hague: Martinus Nijhoff Publishers.

[37]Oppenheim: International Law, Vol. I, cit., pp. 533, 566; Moore’s Digest, Vol. I, cit., p. 176. The practice is the same under English Law.




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