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<br />OOD354 <br /> <br />DRAFT-Not for distribution <br /> <br />The concept of sustainability is growing rapidly in the United States and abroad as a <br />prevailing policy paradigm. Although the concept exists in some U.S. statutes,127 it has not been <br />adopted as a national policy of the United States. It is the concept that natural resources should <br />be used at a limited pace in respect ofthe resource's capacity to restore or maintain itself through <br />natural processes. The concept has been advocated specifically for the activities of the U.S. <br />Bureau of Reclamation 128 and has received some recognition by the Bureau. 129 It has been <br />adopted, at least by reference, in the U.S.-Mexico Border XXI Program,130 the regulations <br />implementing Mexico's general environmental law,l3I and most important, in Article 5 of the <br />U.N. Convention on the Law of the Non-navigational Uses ofInternational Watercourses132 and <br />Article III, (l)(i) of the 1992 Helsinki Convention on Protection and Use of Transboundary <br />Watercourses and International Lakes. I33 The principle that natural resources should be used <br />sustainably is, however, counterposed to the primary objective of international law to regulate <br />the discretionary powers of states in order to avoid encroachments on the discretionary powers of <br />other states.134 Although mentioned in a concurring opinion in the Gabcikovo-Nagymaros <br />Project case,135 sustainability has not been recognized as a basis to avoid clear treaty rights or <br />obligations. It also suffers the problem that it is difficult to measure in the short term, making it <br />dependent to a degree upon normative courses of action rather than measurable results. <br /> <br />Mexico could rely on the sustainabiIity principle to argue that reduced water consumption <br />in the United States is necessary in order to sustain the environmental resource in Mexico. This <br />argument, while premised on a claim of necessity, is rebutted by the fact that Mexico's <br />agricultural water users' rights could be converted now to the purpose of serving Mexico's <br />environmental resources. Again both the U.S. and Mexico currently use water primarily for <br />consumptive non-environmental uses, neither nation having made allocation decisions based <br />upon sustainability. <br /> <br />d. Polluter Pays Principle <br /> <br />The polluter pays principle holds that the polluting party is responsible for the damages <br />caused by his pollution, notwithstanding his national origin or citizenship. It is now a widely <br />accepted rule of customary international law. It is the extension of U.S. common law <br />incorporating trespass, negligence and strict liability for hazardous materials. It has been firmly <br />established since the Bhopal and Exxon Valdez incidents. It applies more to individual actors <br />than nations, but can be the grounds for an international claim for property or personal loss. Of <br />the several principles discussed here, the polluter pays principle seems to come the closest to <br />being a peremptory norm of general international law. <br /> <br />The polluter pays principle and transboundary harm rule do not appear relevant unless the <br />withholding of water were to breach some duty of law or care and could be characterized as a <br />"pollution." <br /> <br />e. Transboundary Harm Rule <br /> <br />The transboundary harm rule holds that no nation may undertake actions on its own <br />territory that will cause transboundary harm, and that nations have a duty to notify and gain the <br /> <br />13 <br />