The Tisza Cyanide Disaster and International Law

Aaron Schwabach

Associate Professor of Law and Director, Center for Global Legal Studies, Thomas Jefferson School of Law. Mr. Schwabach received his J.D. in 1989 from Boalt Hall. He may be contacted at aarons@tjsl.edu.

[30 ELR 10509]

Just under 14 years ago, at a few minutes after midnight on Halloween, a fire broke out in Sandoz Warehouse 956 in Schweizerhalle, near Basel, Switzerland. The fire and subsequent fire-fighting efforts resulted in the discharge of 1,351 metric tons of chemicals, many of them toxic, into the Rhine. At the time, the Sandoz spill was considered Europe's worst environmental disaster in decades, and perhaps its worst watercourse disaster ever. The incident briefly spurred interest in protecting Europe's environment, particularly its watercourses and especially the Rhine.¹

As is so often the case, however, "never again" actually meant "not for a while." On January 31 of this year, at least 100,000 cubic meters of highly polluted water escaped from a tailings dam at the Aurul gold mine in Baia Mare, Romania. The water flowed into the Somes, Tisza, and Danube Rivers, causing enormous environmental damage. Most of the damage occurred in Hungary, downstream from Baia Mare. Hungarian politicians compared the spill not to Schweizerhalle but to the Chernobyl nuclear power plant disaster; one said "it is as if a neutron bomb had been detonated. All the living organisms have been destroyed."²

After the accident, cyanide levels in the Hungarian portion of the Tisza exceeded the usual amount by 700 times.³ All animal life in the Hungarian section of the Somes appears to have been killed.⁴ By February 19, the Tisza was almost entirely lifeless over the nearly 1,000 kilometer stretch between the Somes and the Danube. Hungarian and Yugoslavian workers and volunteers had filled railway cars with more than 100 metric tons of dead fish from the Tisza.⁵

Inevitably, after any catastrophe, a tremendous amount of human energy is expended upon the ritual of placing the blame. The Aurul mine was jointly owned by Remin (a mining company owned by the Romanian government)⁶ and Esmeralda Exploration Ltd., an Australian mining company.⁷ Blame was thus handed out to Esmeralda and the Romanian government in approximately equal portions.

While this incident-specific approach may be useful in negotiating a settlement between Aurul's owners and the injured lower riparians, it ignores the deeper problem: the lack of an international legal regime adequate to prevent such incidents in the first place. Blaming Romania for failing to enforce its own environmental laws ignores political and economic realities. Romania lacks the physical and administrative infrastructure necessary to protect its rivers or force foreign investors to do so. Most of the people of northern Romania live in the grip of poverty more desperate than most Westerners can even imagine. And while there are profits to be made by exploiting natural resources, there will never be a shortage of inept, penurious, or unscrupulous operators willing to cut corners.

Esmeralda has, in fact, retreated into voluntary receivership,⁸ and its stock has been delisted from the Australian Stock Exchange. In all probability, the people of Baia Mare valued the 3,000 jobs that the Aurul mine provided more than they valued all of the fish in the Tisza.⁹ Calls in Australia for stricter control of Australian companies doing business overseas¹⁰ may simply encourage such companies to move elsewhere.

The international community as a whole, and the regional community in particular, must also bear its share of the blame for allowing the Tisza catastrophe to occur. Safer practices by Esmeralda alone would have made little difference: flooding across northern Romania this past winter resulted in at least three other serious toxic accidents.¹¹ Two spills at [30 ELR 10510] a zinc and lead mine at Baia Borsa released more than 20,000 tons of toxic sludge, containing heavy metals, into the Vaser,¹² which flows into the Viseu, which in turn joins the Tisza upstream from the Somes; thus, the Baia Borsa spills contaminated parts of the river unaffected by the Baia Mare spill, as well as the portion previously affected.¹³ As a World Wide Fund for Nature spokesperson pointed out, the effects of the Baia Borsa spills might have been far more catastrophic, but almost all of the river life had been killed by the Baia Mare spill.¹⁴ A smaller spill of cyanide from a northern Romanian coal mine into the Somes also added to the contamination from the Baia Mare spill.¹⁵

Nor is Romania the only poor country in the region willing to take environmental risks. Last year, for example, a release of toxic waste in Yugoslavia severely damaged the Timok River, whose confluence with the Danube marks the border between Yugoslavia, Romania, and Bulgaria.¹⁶

Action at the national level in both Romania and Australia, as well as in other resource-importing and resource-exporting countries, should be encouraged. However, the causes of transboundary environmental harm must be addressed at an international, as well as a local, level.

The first steps toward action at the international level have been taken by the European Union (EU), the United Nations, and three of the affected countries. European Commission vice-president Loyola de Palacio has called the spill "a true European catastrophe,"¹⁷ adding that the EU might offer financial assistance. She has also invoked the "polluter pays" principle, stating that "there is a clear principle in the EU that in general, who contaminates will pay for the restitution, although full restitution here is impossible.¹⁸ In the aftermath of the spill, arrangements were made for a United Nations team to inspect the Baia Mare site in April 2000.¹⁹ Apparently recognizing that the existing legal regime was inadequate to protect the river, Romania, Ukraine, and Hungary signed a protocol on the prevention of environmental pollution at Debrecen, Hungary, on March 16, 2000.²⁰

International Law Protecting the Tisza, the Danube, and Other International Watercourses

Over the past century, an international legal regime governing transboundary environmental harm has emerged, although significant lacunae still exist. The Tisza, as a tributary of the Danube, is to some extent governed by a regime of conventional international law. Such lacunae as exist in that regime may be filled by reference to customary international law, which consists of those rules that, although not formalized by international agreement, are followed by states from a sense of legal obligation.²¹ "General principles of law" have traditionally been seen as a third category of public international law.²² However, they can also be seen as "supplemental rules" or a "secondary source of law."²³ ("Judicial decisions and the teachings of the most highly qualified publicists" are a "subsidiary means for the determination of rules of law.")²⁴ In any event, domestic judicial decisions and, to the extent that a state actually observes them, general principles of law are state practice undertaken from a sense of legal obligation, and thus form the basis for normative expectations.

Treaties and International Agreements Protecting the Waters of the Danube Basin

There is a considerable body of treaty law, stretching back nearly two centuries, governing the navigational uses of the waters of the Danube basin, including the Somes, the Vaser, and the Tisza. There are also some much more recent agreements of a specifically environmental character, as well as environmental provisions in treaties of the first category.²⁵

Prior to World War I, environmental preservation for its own sake was rarely a goal of government policy in Europe or elsewhere. Some Danube treaties from that period include quasi-environmental provisions primarily intended to preserve the river's navigability and to prevent the introduction of diseases from Turkey to Europe.²⁶

The treaties of Versailles and Trianon, which ended the first World War, made extensive provisions for the regime of navigation on the Danube, but said little about non-navigational uses of the river.²⁷ Although the post-war treaties [30 ELR 10511] actually reflected less concern with quarantine and sanitary regulations,²⁸ new non-navigational concerns began to appear. In particular, Article 293 of the Treaty of Trianon set up a Hydraulic System Commission with jurisdiction over the non-navigational uses of much of the Danube basin.²⁹ Article 293 was a revolutionary document; it foreshadowed the drainage basin approach to international watercourse administration favored today by many environmental theorists.

In addressing dispute resolution, the Treaty of Trianon provided that the tribunal resolving conflicts over the uses of the river's waters would make

due allowance in its decision for all rights in connection with irrigation, water-power, fisheries, and other national interests, which, with the consent of all the riparian States or of all the States represented on the International Commission, shall be given priority over the requirements of navigation.³⁰

Thus, Trianon represents a step in the transition to a world in which rivers are primarily valued for their non-navigational uses.

After World War II, the river system seems to have declined in relative political importance. Whereas the Treaty of Trianon devotes 20 articles to the Danube,³¹ the Treaty of Paris³² contains a single "Clause Relating to the Danube," which provides that international traffic on the Danube should be free and open to all nationals.³³

The post-war era saw a dramatic increase worldwide in the number of treaties dealing with specifically environmental concerns.³⁴ The first specifically environmental treaty protecting the resources of the Danube basin was the 1958 Danube Fisheries Agreement.³⁵ Romania, Yugoslavia,³⁶ and the Soviet Union were parties to the 1958 Danube Fisheries Convention; Hungary joined in 1961. Articles 1 and 3 of the Danube Fisheries Convention define the area governed by the treaty in a way that would exclude almost all of the Tisza and all of the tributaries of the Tisza affected by the Romanian spills.³⁷ The Danube itself, though, and the Tisza at its junction with the Danube in Yugoslavia, would be covered by the Danube Fisheries Convention. Under the Danube Fisheries Convention, Romania was obligated "to work out and apply measures to prevent the contamination and pollution of the river . . . by . . . waste from industrial and municipal undertakings which are harmful to fish and other aquatic organisms." The spills themselves are evidence that any such measures that might have existed in Romania were either inadequate or improperly applied.

Romania did not violate its obligation to Hungary under the Danube Fisheries Convention, as none of the waters in Hungary covered by the treaty were affected by the accident. (The only portion of the Tisza covered by the agreement is in Yugoslavia.) The Ukrainian portion of the Tisza is also outside the coverage of the treaty; in any event, the Soviet Union's rights and responsibilities under the Danube Fisheries Convention have passed to the Russian Federation rather than to Ukraine.³⁸ The state currently known as Yugoslavia is apparently not a party either.³⁹ It seems certain that the contracting parties were forming obligations vis-a-vis each other, rather than mutually agreeing to undertake some form of obligations erga omnes; thus Romania did not violate any obligation to Yugoslavia.

Two treaties are particularly relevant to transboundary incidents such as the Baia Mare and Baia Borsa spills: the United Nations Convention on the Protection and Use of Transboundary Watercourses and International Lakes (U.N. Convention)⁴⁰ and the Convention on Cooperation for the Protection and Sustainable Use of the Danube River (Danube Protection Convention).⁴¹

[30 ELR 10512]

Romania, Hungary, Ukraine, and Slovakia are all parties to the U.N. Convention and signatories to the Danube Protection Convention; all but Ukraine have also ratified or otherwise become parties to the Danube Fisheries Convention. Yugoslavia is not a party to either convention. Under both conventions, Romania is obligated to "take all appropriate measures . . . to prevent, control, and reduce pollution of waters causing or likely to cause transboundary impact,"⁴² and to minimize the risk of accidental pollution.⁴³ The Danube Protection Convention specifically lists "ore preparation" as a hazardous activity.⁴⁴

Both conventions also incorporate the precautionary and polluter-pays principles, although only the U.N. Convention specifically incorporates the intergenerational equity principle.⁴⁵ The Danube Protection Convention is nonetheless "greener" than the U.N. Convention (to which it refers)⁴⁶; it speaks of sustainable use, while the U.N. Convention refers to equitable use.⁴⁷ Both conventions also impose duties to warn of accidental pollution⁴⁸ and to consult with affected lower riparians.⁴⁹ Romania apparently did not fail in this duty, although Ukraine and Hungary have expressed dissatisfaction over Romania's lack of communication regarding the accidents.⁵⁰

Of the two, the Danube Protection Convention offers a stronger dispute resolution mechanism. Article 24 of the Danube Protection Convention is worded in a way that suggests that acceptance of compulsory jurisdiction of the International Court of Justice (ICJ) or arbitration is the norm.⁵¹ The Danube Protection Convention also provides for compulsory arbitration where states have made no declaration accepting the compulsory jurisdiction of the ICJ and have not resolved a particular dispute within 12 months.⁵²

The precautionary principle, the "polluter-pays" principle, and the principle of intergenerational equity, along with the concept of sustainable (as opposed to equitable) use, all tend to protect the environment at the expense of development. The basic tenor of the two conventions is thus some-what unfriendly to Romania in this instance.

The Danube Protection Convention also sets up an International Commission for the Protection of the Danube River (the Danube Protection Commission),⁵³ with binding rulemaking powers within its area of competence.⁵⁴ On April 12, 1998, it undertook a project "to promote the international cooperation relating to an integrated approach to the management of the Tisza River Basin," as well as "to identify the joint base for an Integrated Tisza River Basin Plan[.]"⁵⁵ The project was assigned to an Irish group, ESB International. It was originally scheduled for completion on April 6, 2000.⁵⁶ The first steps have thus been taken toward establishing a set of interlocking river management entities for the Danube basin similar to that which exists for the Rhine basin.

The Rhine treaty regime includes, inter alia, a treaty creating the International Commission for the Protection of the Rhine Against Pollution (the Rhine Protection Commission) (charged with the protection of the river against pollution),⁵⁷ a treaty seeking to protect the river from chemical pollution (with detailed lists of prohibited and restricted pollutants),⁵⁸ and a convention dealing with the specific problem of chloride pollution from the French potassium mines in Alsace.⁵⁹ There are also regional treaty commissions charged with protecting specific tributaries or regions of the Rhine, such as the Saar, the Moselle, and Lake Constance.⁶⁰ The Danube regime atpresent includes only the first of these—the international commission. Also, in addition to the various general and specific international agreements applicable to the Danube, the Rhine is to a large extent protected by EU law, since most of the riparian states of the Rhine are also members of the EU.

Customary International Law Governing the Use of the Waters of Transboundary Watercourses

Romania violated its obligations under the U.N. Convention to Ukraine, Hungary, and Slovakia, and under the Danube Protection Convention to Hungary and Slovakia. Romania had no obligations to Ukraine under the Danube Protection Convention, and no obligations to Yugoslavia under either convention. To determine what duties Romania had in the areas to which the treaties are inapplicable, it is necessary to examine customary international law.

Customary international law has long recognized limits on the uses of the waters of transboundary watercourses. The exact nature and extent of those limits, however, are mutable and often hard to determine. The right of a downstream neighbor to receive an uninterrupted flow of uncontaminated water must be balanced against the right of the [30 ELR 10513] upper riparian to make equitable use of the river's waters. In other words, the territorial integrity interest of the lower riparian must be balanced against the territorial sover-eignty interest of the upper riparian. In practice, this often leads to balancing environmental rights against development rights.

The approach ("rule" would imply a higher degree of normativeness than actually exists) generally taken is thus one of limited territorial sovereignty.⁶¹ The limits on territorial sovereignty are not fixed, however, but can be found at a movable point somewhere along a continuum between absolute territorial sovereignty and absolute territorial integrity. An upper riparian (such as Romania) has both a sovereign right to exploit resources within its territory, and a duty to respect the territorial integrity of lower riparians (such as Yugoslavia) by preventing or minimizing harm from those activities.

A fourth approach to the management of international freshwater resources, the community or drainage basin management theory,⁶² has yet to find acceptance in the practice of states. While academics and environmentalists embrace the community theory, states are reluctant to sacrifice their sovereignty to a drainage basin management authority. Furthermore, most upper riparians seem to see the community theory as a product of the environmental movement, and more likely to protect the interests of downstream states.

Decisions of International Tribunals

Basic principles of the customary international law of state responsibility for transboundary harm are generally seen as having been developed through three decisions of international tribunals: the Trail Smelter⁶³ arbitration, the Corfu Channel⁶⁴ case, and the Affaire du Lac Lanoux⁶⁵ arbitration. The Trail Smelter tribunal, in dicta, first expressed the principle that a state has responsibility for environmental damage extending beyond its territorial limits.⁶⁶

In the Corfu Channel case, the ICJ also applied this general principle of limited territorial sovereignty,⁶⁷ stating that it is "every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States."⁶⁸ The Lac Lanoux arbitration, in turn, applied the principle to the non-navigational uses of a transboundary watercourse.⁶⁹

Aspirational Documents and Pronouncements of International Bodies

Public and private international organizations have also addressed the problem of transboundary environmental harm. While the aspirational documents thus produced create (of themselves) no legally binding obligations, they may serve to show "the general principles of law recognized by civilized nations[.]"⁷⁰ To the extent that they are promulgated or (especially in the case of U.N. General Assembly resolutions) voted for by certain states and not by others, they may also provide insight into the practice or expectations of those states.

Principle 21 of the U.N. Stockholm Declaration on the Human Environment⁷¹ is generally viewed as having attained the status of customary international law. Principle 21 provides that states have the "sovereign right to exploit their own resources pursuant to their own environmental policies."⁷² Along with this right, though, comes the "responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction."⁷³ [30 ELR 10514] The Stockholm Declaration thus incorporates the Corfu Channel standard that no state may allow its territory to be used so as to harm another state.

The Helsinki Rules⁷⁴ promulgated by the International Law Association also assume limited territorial sovereignty. Article IVincorporates the "equitable use" concept, stressing that "each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin."⁷⁵ Among the factors to be used in determining what is "reasonable and equitable" are the economic and social needs of each state,⁷⁶ the population dependent on the waters of the basin,⁷⁷ and the degree to which waste and unnecessary injury can be avoided.⁷⁸

One reason that so few aspirational documents of this nature find acceptance in the practice of states (Principle 21 of the Stockholm Declaration being the notable exception) is that they are heavily weighted in favor of environmental protection over development. In applying the Helsinki Rules to the Baia Mare situation, for example, only the first of these factors seems to weigh on the side of Romania; its need for development is great. The others, though, weigh on the side of the injured lower riparians: two million Hungarians drew drinking water from the Tisza, and the cost of protective measures—higher and better-constructed tailings dams—would have been relatively slight.

The Helsinki Rules use a "substantial injury" standard to determine whether a state's use of water is reasonable and equitable.⁷⁹ Article X prohibits "any new form of water pollution or any increase in the degree of existing water pollution in an international drainage basin which would cause substantial injury in the territory of a co-basin State."⁸⁰ Article XI provides that a polluting state must cease the polluting activity and compensate the injured state.⁸¹ The injury to the Tisza, and thus to Hungary and perhaps Yugoslavia, was certainly "substantial," and both countries have announced their intention to seek compensation.

The World Charter for Nature⁸² (a U.N. General Assembly resolution) provides that:

States . . . shall . . . ensure that activities within their jurisdictions or control do not cause damage to the natural systems located within other States or in the areas beyond the limits of national jurisdiction[.]⁸³

This duty to other states, expressed in language similar to that of the earlier Stockholm Declaration and the later Rio Declaration is then countered by a recognition of "the sovereignty of States over their natural resources[.]"⁸⁴ The significant difference (although probably irrelevant in the Baia Mare situation) is the substitution of "natural systems" for environment"; this seems to imply liability even in the absence of economically quantifiable harm.

Principle 2 of the Rio Declaration⁸⁵ is identical, with the exception of two added words, to Principle 21 of the Stock-holm Declaration:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.⁸⁶

Those two added words reflect substantial changes in the level of assertiveness and involvement of developing nations between 1972 and 1992. They serve to shift the balance between territorial sovereignty and territorial integrity toward the former, favoring developing nations and upper riparians (such as, at least along the Romanian portion of the Tisza).⁸⁷ The Rio Declaration does, however, require environmental impact assessment⁸⁸ and "prior and timely notification . . . to affected states[.]"⁸⁹

The U.N. Convention on the Law of Non-Navigational Uses of International Watercourses,⁹⁰ despite its name, is at present nothing more than another U.N. General Assembly resolution. Despite having been adopted by a U.N. General Assembly vote recorded as 103 for to 3 against, with 27 abstentions [30 ELR 10515] and 33 members absent,⁹¹ the above-mentioned convention cannot be said to reflect customary international law.⁹² Romania, Ukraine, Hungary, and Slovakia, however, all voted in favor of this convention,⁹³ and may consider it an accurate statement of their rights and responsibilities under international law. Like the U.N. Convention on the Protection and Use of Transboundary Watercourses and Lakes, the Non-Navigational Uses Convention adopts an "equitable use" approach.⁹⁴ Like the Danube Protection Convention, it requires that such use should be (or attempt to be) sustainable.⁹⁵ It thus would make no significant alterations in the rights and responsibilities of most of the parties affected by the Baia Mare incident, although it might serve to extend Romania's obligations to Yugoslavia.

Under the Non-Navigational Uses Convention, protection of water for drinking, fishing, and agriculture might also take priority over mining uses: "In the event of a conflict between uses of an international watercourse, it shall be resolved . . . with special regard being given to the requirements of vital human needs."⁹⁶

Thus, customary international law imposed a duty on Romania not to allow its territory to be used in a way which caused harm to its downstream neighbors. While there is considerable disagreement as to the exact parameters of this duty, the highest level of harm generally recognized as breaching the duty is "substantial" harm. Even applying this standard (the one most generous to Romania), Romania breached its duty. While Romania is entitled to equitable use (whether or not that use must also be "sustainable") of the waters within its own territory, it must take measures to prevent, at a minimum, substantial harm to the lower riparians.

Conclusion

The treaty regime protecting the Danube basin has proved inadequate. Whenever northern Romania experiences heavy flooding, the Tisza will be endangered. On the positive side, there are signs that the situation along the Danube will improve. The Baia Mare spill has focused attention on the Danube and its tributaries. The Debrecen agreement is an encouraging development. The newly minted legal structures protecting the Danube—especially the Danube Protection Convention and the Danube Protection Commission—have been provided with their first real test, and seem to have survived; no party has withdrawn from the treaties or the international commissions or even suggested doing so. All of the actors, including Romania, seem genuinely committed to addressing the situation.

Two major problems face the Danube, however, that did not face the Rhine in 1986: economic inequality and political instability. The extreme economic disparities between the upper and lower riparians in the Danube basin will continue to make countries such as Romania a tempting location for environmentally harmful investments. The political isolation and exclusion of Yugoslavia, a major riparian on the Danube and some of its tributaries, leaves a significant hole in the river basin management regime.

Ultimately, the problem of economic inequality can only be addressed by removing the inequality. In the shorter term, a "race to the bottom" in environmental standards among the poorer developing riparians can only be avoided by setting specific international minimum standards. This must be done through extremely specific international agreements. The best way to approach this would seem to be through the international commissions, but the process must include Yugoslavia to be effective.

Nor are the Danube and the Rhine basins the only endangered river basins in Europe. The Dniester and the Oder, among others, are at risk. Given the level of commitment to positive environmental action shown thus far by the Danube riparians the Danube, and even the Tisza, will probably be saved. However, this action would not be necessary now if it had begun 14 years ago, after the Sandoz spill. Efforts to establish binding environmental standards, with effective enforcement and dispute resolution mechanisms, should be extended to all of Europe's international river basins as soon as possible.

1. For more on the Sandoz spill and its aftermath, see generally, e.g., Aaron Schwabach, The Sandoz Spill: The Failure of International Law to Protect the Rhine From Pollution, 16 ECOLOGY L.Q. 443, 445 (1989).

2. Eszter Szamado, Cyanide Spill Is Ecological Crisis: Hungarian Official, Agence France Presse, Feb. 12, 2000 (on file with author) (statement of Zoltna Illes, President of Hungarian parliament's environment committee).

3. Simon Mann, Angry Hungary Demands Compensation, SYDNEY (AUS.) MORNING HERALD, Feb. 10, 2000, at 8; see also Karen Middleton & Sharon Kemp, How It Happened, W. AUSTRALIAN, Feb. 10, 2000, at 4, available in 2000 WL 6251420 ("800 times the acceptable level").

4. Middleton & Kemp, supra note 3.

5. Death on the Danube, ECONOMIST, Feb. 19, 2000, at 53.

6. Mann, supra note 3.

7. Middleton & Kemp, supra note 3.

8. Australia: Esmeralda Put Into Administration, Reuters English News Service, Mar. 15, 2000 (copy on file with author).

9. One of the principal goals of environmental law, of course, should be to force polluters and others causing environmental harm to internalize their externalities. For example, the creation of 3,000 jobs in Baia Mare ultimately cost the jobs of the 15,000 Hungarians employed by the Tisza fishing industry.

10. Middleton & Kemp, supra note 3.

11. See generally Romanian Mine Accidents: Environmental Disaster in Central Europe (visited May 18, 2000) http://www.zpok.hu/~jfeiler/baiamare/index.htm. This website, maintained by the Hungarian National Society of Conservationists and Friends of the Earth, Inc., provides complete, frequently updated information about the spills and their effects.

12. Another Mine Spill Poisons Rivers in Romania, Hungary, Environmental News Service, Mar. 11, 2000, available in 2000 WL 7838254; Spills Reveal Danger Lurking in Polluted Section of Romania, ORLANDO (FLA.) SENTINEL, Mar. 12, 2000, at A-18; Australian Company Blamed for Cyanide Spill Regrets Accident, Associated Press Newswire, Mar. 17, 2000, available in 2000 WL 16860358.

13. See, e.g., EUROMAP, ROMANIA, MOLDAVIA (1999).

14. Australian Company Blamed for Cyanide Spill Regrets Accident, supra note 12 (statement of Jan Korabov).

15. Mann, supra note 3.

16. Death on the Danube, supra note 5.

17. Romanian Cyanide Spill a "European Catastrophe," Agence France Presse, Feb. 10, 2000, available in 2000 WL 2730898.

18. Id.

19. UNEP/OCHA Assessment Mission, Cyanide Spill at Baia Mare, Romania (2000) (copy on file with author).

20. Australian Company Blamed for Cyanide Spill Regrets Accident, supra note 12. A copy of the Debrecen agreement, translated into English, is on file with the author.

21. Statute of the International Court of Justice, art. 38(1), 59 Stat. 1055, 1060 (1945), T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N. 1052.

22. Id.

23. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(4), cmt. 1 & Reporter's Note 7 (1987).

24. Statute of the International Court of Justice, supra note 21.

25. For a detailed chronology of the Danube treaty regime, see Ludwik A. Teclaff, Fiat or Custom: The Checkered Development of International Water Law, 31 NAT. RESOURCES J. 45, 51-56 (1991). See also Pascale Costa, Les Effets de la Guerre sur les Traites Relatifs au Danube, Dans le Cadre d'une Etude Globale du Droit Conventionnel du Danube, in THE LEGAL REGIME OF INTERNATIONAL RIVERS AND LAKES/LE REGIME JURIDIQUE DES FLEUVES AT DES LACS INTERNATIONAUX 203-45 (Ralph Zacklin & Lucius Caflisch eds., 1981).

26. See, e.g., Public Act of the European Commission of the Danube Relative to the Navigation of the Mouths of the Danube, Nov. 2, 1865 [hereinafter Public Act of 1865], Annex A, art. LXIV, 131 Parry's T.S. 399, 422-23; Regulations of Navigation and Police Applicable to the Danube Between Galatz and the Mouths, Drawn up by the European Commission of the Danube, May 19, 1881 [hereinafter European Commission Regulations of 1881], arts. 26, 73, 158 Parry's T.S. 245, 250-51, 259 (restricting discharges of ballast and cinders). For a detailed description of these restrictions, see Aaron Schwabach, Diverting the Danube: The Gabcikovo-Nagymaros Dispute and International Freshwater Law, 14 BERKELEY J. INT'L L. 290, 314-17 (1996).

27. Treaty of Peace With Germany, June 28, 1919, arts. 331-39 (dealing with navigable international rivers generally), 346-53 (dealing with the Danube specifically), 225 Parry's T.S. 189, 355-57, 360-61 [hereinafter Treaty of Versailles]; Treaty of Peace Between the Allied and Associated Powers and Hungary, June 4, 1920, arts. 120 (surrendering the Danube Flotilla), 275-91 (dealing with navigation on the Danube), 314 (binding Hungary to adhere to treaties regarding international transport concluded by the Allied and Associated powers within the coming five years), U.S. Senate: Treaties, Conventions, International Acts, Protocols, and Agreements, S. EXEC. DOC. 3539, 3666-70, 3670-71, 3679 [hereinafter Treaty of Trianon]. See also Treaty of Peace Between Austria-Hungary, Bulgaria, Germany, Turkey, and Romania, May 7, 1918, arts. 24-26 (dealing with the regime of navigation on the Danube), 223 Parry's T.S. 256, 263-64. By 1921, the new navigation regime had been codified in the Definitive Statute of the Danube. Convention Instituting the Definitive Statute of the Danube, July 23, 1921, 25 L.N.T.S. 173.

28. See, e.g., Treaty of Trianon, supra note 27, art. 274; Arrangement and Final Protocol Relative to the Exercise of the Powers of the European Commission of the Danube, Aug. 18, 1938, art. 12, 196 L.N.T.S. 113, 119.

29. Treaty of Trianon, supra note 27, art. 293.

30. Id. art. 282.

31. Id. arts. 274-93. In addition, Articles 268-73 deal with transit through Hungarian territory (including transit on the Danube), and Articles 27, 30, and 31 deal with the Danube and its tributaries as frontiers. The Treaty of Versailles, supra note 27, contains an additional 27 clauses relating to the Danube. Id. arts. 331-39 (general clauses relating to the Elbe, the Oder, the Niemen, and the Danube), 346-53 (special clauses relating to the Danube).

32. Treaty of Peace With Hungary, Feb. 10, 1947, 41 U.N.T.S. 135 (English text begins on page 168) [hereinafter Treaty of Paris].

33. Id. art. 38.

34. There was also a dramatic shift in the balance of political power in the Danube basin. During the period from 1945 to 1989, most of the lower Danube basin was effectively under the control of the Soviet Union, itself a minor riparian. This lead to a simplification of the navigation regime. See Convention Regarding the Regime of Navigation on the Danube, Aug. 18, 1948, 32 U.N.T.S. 181 (English text begins at page 197).

35. Convention Concerning Fishing in the Waters of the Danube, Jan. 29, 1958, Bulg.-Rom.-U.S.S.R.-Yugo., 339 U.N.T.S. 58 [hereinafter Danube Fisheries Convention].

36. The state then known as Yugoslavia was a party to the treaty. All other references to Yugoslavia in this Article are to the state presently using the name "Federal Republic of Yugoslavia."

37. Danube Fisheries Convention, supra note 35, arts. 1 and 3.

38. The Environmental Treaties and Resource Indicators database at the Center for International Earth Science Information at Columbia University lists the present parties to the treaty as Bulgaria, Hungary, Romania, and Russia. See, e.g., Globelaw (visited May 18, 2000) http://globelaw.com/sources.htm.

39. See generally, e.g., Paul R. Williams, The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?, 23 DENV. J. INT'L L. & POL'Y 1 (1994).

40. 31 I.L.M. 1312 (1992); 31 I.L.M. 1599 (1992) (entered into force Oct. 6, 1996) [hereinafter U.N. Convention]. Hungary approved the U.N. Convention on Sept. 2, 1994; Romania ratified on May 31, 1995, and Slovakia and Ukraine acceded on July 7, 1999 and Oct. 8, 1999, respectively. Yugoslavia is not a party. All four of the former states are also signatories to a protocol on waterborne diseases, not yet in force. 1999 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Water-courses and International Lakes (visited May 18, 2000) http://untreaty.un.org/English/notpubl/27-5a-eng.htm.

41. Convention on Cooperation for the Protection and Sustainable Use of the Danube River (entered into force Oct. 22, 1998) [hereinafter Danube Protection Convention]. The Danube Protection Convention is available at the website of the University of Ljubljana, http:/ksh.fgg.uni-lj.si/danube//envconv/index.htm. Hungary, Romania, and Ukraine are all signatories to the Danube Protection Convention.

42. U.N. Convention, supra note 40, art. 2.2(a); Danube Protection Convention, supra note 41, arts. 5(2), 6(c), and Annex II, pt. 1.1(c).

43. U.N. Convention, supra note 40, art. 3.1(1).

44. Danube Protection Convention, supra note 41, Annex II, pt. 1.1(c).

45. Id. art. 2(4); see also Annex I, pt. 2.2. The Danube Protection Convention also continues the functions of the 1985 Bucharest Declaration on the Cooperation of the Danubian Countries on Problems of Danubian Water Management. Id. art. 19.

46. Id. pmbl.

47. Id. arts. 2(3), 2(5).

48. U.N. Convention, supra note 40, art. 14; Danube Protection Convention, supra note 41, arts. 12(f), 16(3).

49. Danube Protection Convention, supra note 41, arts. 11, 12(f).

50. See generally Romanian Mine Accidents: Environmental Disaster in Central Europe (visited May 18, 2000) http://www.zpok.hu/~jfeiler/baiamare/index.htm.

51. Danube Protection Convention, supra note 41, art. 24.

52. Id. arts. 24(2)(b), 24(2)(e). Annex V provides detailed arbitration guidelines.

53. Id. Annex IV.

54. Id. Annex IV, arts. 4, 5. The Danube Protection Commission began to operate on a provisional basis even before the Danube Protection Convention entered into force.

55. International Cooperation for River Basin Management in the Danube River Basin (visited May 18, 2000) http://www.rec.org/DanubePCU/flyers/coop_l.html.

56. Id. As of May 1, 2000, ESB's report was not yet available.

57. Vereinbarung uber die Internationale Kommission zum Schutze des Rheins gegen Verunreinigung, Apr. 29, 1963, 994 U.N.T.S. 3 (Convention Concerning the International Commission for the Protection of the Rhine Against Pollution).

58. Convention for the Protection of the Rhine Against Chemical Pollution, Dec. 3, 1976, 16 I.L.M. 242 (1977).

59. Convention Relative a la Protection du Rhin Contre la Pollution par les Chlorures, Dec. 3, 1976, 16 I.L.M. 226 (1977) (Convention Relating to the Protection of the Rhine Against Pollution by Chlorides). The agreement was modified in 1991.

60. See generally Schwabach, supra note 1, at 460.

61. For a full discussion of the competing approaches to this question, see generally Schwabach, supra note 26, at 325-40.

62. Elements of the community theory are expressed in the Case Concerning the Jurisdiction of the International Commission of the River Oder, 1929 P.C.I.J. (ser. A) No. 23, at 27 (Sept. 10, 1929); Economic Commission for Europe Declaration of Policy on the Rational Use of Water, Apr. 14, 1984, art. 17, ECE/DEC/C(XXXIX); Bellagio Draft Treaty Concerning the Use of Transboundary Groundwaters, 1989, 1 BASIC DOCUMENTS OF INTERNATIONAL ENVIRONMENTAL LAW 42 (Harald Hohmann ed., 1992) (for annotated text and discussion, see Robert D. Hayton & Albert E. Utton, Transboundary Groundwaters: The Bellagio Draft Treaty, 29 NAT. RESOURCES J. 663 (1989)); Agenda Item 21, June 13, 1992, U.N. Doc. A/CONF. 151/26 (vols. I-III, esp. ch. 18) (1992); Commission on Sustainable Development, Overall Progress Achieved Since the United Nations Conference on Environment and Development (Addendum: Chapter 18 of Agenda Item 21), E/CN.17/1997/2/Add. 17, Jan. 17, 1997, paras. 21-22; Report of the United Nations Water Conference, Mar del Plata, Argentina, U.N. Doc. E/CONF.70/29, at 53 (1977). See also Agenda Item 21, June 13, 1992, U.N. Doc. A/CONF.151/26 (vols. I-III), §§ 18.9, 18.16, 18.35, 18.36, 18.38(g) (1992).

63. Case (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1941), reprinted in 35 AM. J. INT'L L. 684 (1941).

64. Case (U.K. v. Alb.), 1949 I.C.J. 4, 21 (Apr. 9, 1949) (determination on the merits).

65. Case (Spain v. Fr.), 12 R. Int'l Arb. Awards 281 (1957), digested in 53 AM. J. INT'L L. 156 (1959). Two decisions of international courts directly address Danube issues: Case Concerning the Jurisdiction of the European Commission of the Danube Between Galatz and Braila, Advisory Opinion, 1927 P.C.I.J. (ser. B) No. 14; Case Concerning the Gabcikovo-Nagymaros Project, 37 I.L.M. 162 (1998).

66. "No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence." Trail Smelter Case, 3 R. Int'l Arb. Awards, at 1905, reprinted in 35 AM. J. INT'L L. 684, 716 (1941).

67. Corfu Channel Case, 1949 I.C.J., at 21.

68. Id. at 22.

69. According to the rules of good faith, the upstream state is under the obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interests, and to show that in this regard it is genuinely concerned to reconcile the interests of the other riparian State with its own.

Affaire du Lac Lanoux, 12 R. Int'l Arb. Awards, at 315.

70. Statute of the International Court of Justice, supra note 21.

71. Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1 (1972) [hereinafter Stock-holm Declaration].

72. Id. Principle 21. The idea of permanent sovereignty over natural resources was endorsed by the U.N. General Assembly in 1962, and again, in very different terms, in 1973. Resolution on Permanent Sovereignty Over Natural Resources, G.A. Res. 1803, U.N. GAOR, 17th Sess., Supp. No. 17, at 15, U.N. Doc. A/5217 (1963), 2 I.L.M. 223, and Resolution on Permanent Sovereignty Over Natural Resources, G.A. Res. 3171, U.N. GAOR, 28th Sess., Supp. No. 30, at 52, U.N. Doc. A/9030 (1974), 13 I.L.M. 238. All of the Warsaw Pact U.N. member states abstained from voting on the 1963 resolution and the Stockholm Declaration. All of these states (as well as East Germany, which had become a U.N. member in the interim) voted in favor of the 1973 resolution. The Stockholm Declaration was adopted by a vote of 103 for to 0 against, with 12 abstentions; no roll call vote was recorded.

73. Stockholm Declaration, supra note 71, Principal 21.

74. Helsinki Rules on the Uses of the Waters of International Rivers, 52 I.L.A. 484 (1967).

75. Id. art. IV.

76. Id. art. IV(e).

77. Id. art. IV(f).

78. Id. art. IV(i,k).

79. Id. art. V(k).

80. Id. art. X. The International Law Association (ILA) also addressed transboundary pollution generally in the ILA Rules on International Law Applicable to Transfrontier Pollution, Sept. 4, 1982, 60 I.L.A. 158 (1983).

81. Id. art. XI.

82. World Charter for Nature, Oct. 28, 1982, G.A. Res. 37/7 (Annex), U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51, 22 I.L.M. 455 (1983). The World Charter for Nature was adopted by a vote of 111 countries for to 1 (the United States) against, with 18 abstentions (mostly Latin American countries, plus Algeria and Lebanon).

83. Id. art. 21(d).

84. Id. art. 22.

85. Rio Declaration on Environment and Development, June 13, 1992, U.N.Doc. A/CONF.151/26 (vol. I) (1992), 31 I.L.M. 874 [hereinafter Rio Declaration].

86. Id. Principle 2 (emphasis added to show difference in text).

87. Romania is also, of course, a lower riparian on the Danube.

88. Rio Declaration, supra note 85, Principle 17.

89. Id. Principle 19.

90. On the history of the International Law Commission's (ILC's) drafting of the Non-Navigational Uses Convention, see generally Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, July 19, 1991, Report of the International Law Commission on the Work of Its Forty-Third Session, U.N. GAOR, 46th Sess.,Supp. No. 10, at 161, U.N. Doc. A/46/10 (1991). For a description of the history of the ILC deliberations on the draft articles, see, inter alia, Stephen Schwebel, First Report on the Law of the Non-Navigational Uses of International Watercourses, 2(1) Y.B. INT'L L. COMM'N 143 (1979), U.N. Doc. A/CN.4/SER.A.1979/Add.1; Stephen Schwebel, Second Report on the Law of the Non-Navigational Uses of International Watercourses, 2(1) Y.B. INT'L L. COMM'N 159 (1980), U.N. Doc. A/CN.4/SER.A.1980/Add.1; Stephen C. McCaffrey, An Update on the Contributions of the International Law Commission to International Environmental Law, 15 ENVTL. L. 667 (1985); Peter Fischer & Gerhard Hafner, Aktuelle Osterreichische Praxis zum Volkerrecht/Recent Austrian Practice in International Law, 36 OSTERR. Z. OFFENTL. RECHT UND VOLKERRECHT 365, 417-22 (1986); Stephen C. McCaffrey, International Organizations and the Holistic Approach to Water Problems, 31 NAT. RESOURCES J. 139 (1991); Doman Colloquium on the Law of International Watercourses: Review of the International Law Commissions's Draft Rules on the Non-Navigational Uses of International Watercourses, 3 COLO. J. INT'L ENVTL. L. & POL'Y 1 (1992); Stephen C. McCaffrey, The International Law Commissions Adopts Draft Articles on International Watercourses, 89 AM. J. INT'L L. 395 (1995) (final adoption of the draft articles was completed at the ILC's 1994 session); Teclaff, supra note 25, at 71-73.

91. U.N. GAOR, 51st Sess., 99th plenary mtg., July 8, 1997, U.N. Doc. A/RES/51/229, 36 I.L.M. 700 [hereinafter Non-Navigational Uses Convention]; General Assembly Adopts Convention on Law of Non-Navigational Uses of International Watercourses, May 21, 1997, U.N. Press Release GA/9248, at 1, 7-8 (visited Mar. 21, 2000) http://www4.gve.ch/gci/GreenCrossPrograms/waterres/data/GenAsswater.html [hereinafter GA/9248]. Romania, Ukraine, Slovakia, and Hungary all voted in favor of the Non-Navigational Uses Convention. Id. By its terms, the Non-Navigational Uses Convention will not enter into force until "the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Secretary- General of the United Nations." The deadline for the deposit of such instruments is May 20, 2000; to date, only six have been deposited (by Finland, Jordan, Lebanon, Norway, South Africa, and Syria). Seven other countries (Cote D'Ivoire, Germany, Hungary, Luxembourg, Paraguay, Portugal, and Venezuela) have signed but not ratified. (Lebanon, which has ratified the Non-Navigational Uses Convention, has not signed.) See http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/xxviiboo/xxvii_12.html (visited Mar. 21, 2000); see also http://untreaty.un.org/English/sample/EnglishInternetBible/partI/chapterXXVII/treaty27.asp (visited May 1, 2000).

92. See generally Aaron Schwabach, The United Nations Convention on the Law of Non-Navigational Uses of International Watercourses, Customary International Law, and the Interests of Developing Upper Riparians, 33 TEX. INT'L L.J. 257 (1998).

93. Yugoslavia, of course, cannot vote on any resolutions until the question of itsU.N. membership is resolved.

94. Non-Navigational Uses Convention, supra note 91, art. 5.

95. Id.

96. Id. art. 10.