1.      Introduction

The UN Watercourses Convention, adopted in May 1997,[2] and ratified to date by six Parties,[3] is a global framework agreement with the goal to “ensure the utilisation, development, conservation, management and protection of international watercourses” and the promotion of their optimal and sustainable utilisation for present and future generations.[4] In line with this, the Convention requires that “an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse”.[5] This paper addresses the question whether the UN Watercourses Convention facilitates achievement of these aims, specifically in the context of conflicts-of-uses and water scarcity.  

Achieving sustainable and peaceful management of the more than 500 international  watercourses in various parts of the world is one of the major challenges in the immediate and long-term future.[6] Since the turn of the twentieth century, increased competition for transboundary water resources has resulted in conflicts between States, many of which were resolved peacefully through international agreements.[7] However, some longstanding problems remain[8] and growing demand for diminishing water resources increases the possibility of new conflicts around the world. The  “water law” which developed in response to past transboundary disputes, emerged from decisions of domestic and international courts or tribunals and from international agreements.[9] In the domestic legal system, the principle of “equitable apportionment” evolved as the primary rule that defined and balanced the competing claims of subnational actors.[10] At the international level, the principle of “reasonable and equitable utilisation” crystallised as a rule of customary international law derived, in part, from national (inter-State) and international judicial practice, and supported by treaty law.[11] Consistent with the doctrine of “limited territorial sovereignty”,[12] this principle arose in the context of disputes over transboundary waters and it continues to govern the legitimacy of State activities in this field.[13]

In 1970, the United Nations (UN) responded to the need for clearer rules governing transboundary waters by requesting the International Law Commission (ILC) to codify and progressively develop the rules applicable to the development and management of international watercourses.[14] For close to three decades, the ILC wrestled with the complex legal issues related to this topic.[15] This work formed finally the foundation for the UN Watercourses Convention.

A broader global environmental agenda emerged in the 1970s, appearing most prominently at the 1972 UN Stockholm Conference.[16] The UN pursued its concern over transboundary water issues at the 1977 Mar del Plata Conference, where the Action Plan adopted by the participants contain 11 resolutions and 102 recommendations.[17] However, since then, “water” has become subsumed by the “environment”, loosing its relatively distinctive status as a separate area of global concern. Twenty years following the Stockholm Declaration, the “environment” has dominated the global discourse, as was demonstrated clearly by the 1992 Rio Conference on Environment and Development.[18] At that meeting, transboundary water resources were dealt with as only one component of Agenda 21. Surprisingly, some of the recommendations contained in Chapter 18 (which deals with water issues) of that document[19] had been weakened, if compared with the Stockholm Declaration adopted two decades earlier.[20]

Now, at the dawn of the twenty-first century, it appears that “water” is once again at the forefront of the international agenda, as a concern in its own right, having been invigorated by the World Water Vision process. A Ministerial conference in the Hague in March 2000 is to provide the springboard for an international Action Plan designed to address the forecasted crisis over the world’s water resources.[21] What role will international water law, and, the UN Watercourses Convention, in particular, play in the new global response to managing increasingly scarce transboundary waters?

2.      International Conflicts over Water

The massive increase in dispute proneness projected for the not so distant future motivates a call for . . . guidelines for how water might be shared, and how to act in situations with opposing interests between beneficiaries as opposed to victims of particular land use and / or water projects, and between present as opposed to future generations.[22]

Water scarcity is a serious threat to regional stability and peace.[23] Despite the developments of international law in the field, including the substantial treaty practice that has developed over the last century -- in fact, the first recorded treaty resolved a conflict over water[24] -- disputes over water persist world-wide.[25] Many of the most difficult cases involve upstream / downstream controversies, but competition over scarce resources raises complex issues for all users.[26] The next part provides a brief survey of only some of the current international water contests, which are forecasted to occur all over the world.[27]

In the Middle East, Israel and the Palestinians continue to negotiate their respective rights and obligations concerning their shared waters.[28] Allocation of the uses of the limited waters of the Jordan River, shared by Lebanon, Syria, Israel and Jordan, are of particular concern to the downstream States, Israel and Jordan, who now experience problems in implementing the water-related provisions of their Treaty of Peace.[29] In the same region, Turkey’s development of the upstream parts of the Tigris and Euphrates basins, primarily for the purposes of hydroelectric power production and irrigation, has resulted in a serious controversy with Syria and Iraq, especially during the filling of Turkey’s Ataturk Dam.[30]

In Asia, China has plans to build dams on the upper reaches of the Mekong, which  is regulated only in its lower part by a recent agreement concluded between Vietnam, Cambodia, Laos and Thailand.[31]  The most acute transboundary problems in Central Asia involve the Aral Sea basin where more than 20 million people in five basin States struggle to share the “shrinking and polluted” resource.[32] The recent internationalisation of a number of rivers and lakes in Eastern Europe has increased the potential for transboundary disagreements over water in that part of the world. [33] Despite a long history of cooperation, the Danube has been the subject of a dispute between Hungary and Slovakia before the International Court of Justice (ICJ), and three years after the Court’s decision the parties have yet to reach agreement on finally resolving the outstanding issues.[34] Another area of discord, in the region covered by European Union, relates to the proposed Water Framework Directive, which continues to be modified as contentious issues are addressed.[35]

Africa has an impressive record of treaty practice,[36] but longstanding problems remain and even grow. One example involves allocation of the uses of the Blue Nile, where planned measures in Ethiopia may adversely affect the downstream uses in Egypt. [37] In other parts of Africa, despite adopting model regional and basin agreements,[38] States continue to face conflicts of water use, ineffective institutional mechanisms and insufficient technical and economic capacity to manage their shared waters.[39]

On the Indian subcontinent, India, Bangladesh and Nepal have yet to agree on a basin-wide agreement concerning the Ganges-Brahmaputra basin[40] and even the bilateral agreements in the region have not been fully implemented.[41]

There are increasing transboundary water quality and quantity problems in both North[42] and South America, despite a long history of cooperation and a large number of international water agreements. The waters of the Colorado shared by the USA and Mexico are over-appropriated[43] and dams on the Columbia River are being removed in the lower reaches in response to the “green” lobby.[44] In South America, the legacy of basin-wide watercourse agreements[45] has been jeopardised by unilateral actions of some States and a general lack of coordinated basin-wide management, despite treaty commitments.[46]

3.      Evolution of International Water Law

International water law has evolved and crystallised through State practice and the codification and progressive development efforts undertaken by the UN[47] and private institutions.[48] The treaty practice in this area encompasses a broad range of instruments, from general agreements (which provide basic principles for water resource development)[49] to specific “contractual” type legal and technical arrangements (which set forth detailed operational schemes).[50] Regional cooperation agreements, sometimes supplemented by more specific protocols, include the SADC Convention with Water Protocol, [51] the UNECE Helsinki Convention[52] with Water and Health Protocol.[53] A specialised type of regional regulation, particular to Western Europe is accomplished through the EU Water Directives, including the soon to be adopted EU Water Framework Directive.[54]

Concluded under the auspices of the Economic Commission of Europe and adopted by 24 European countries and the European Union,[55] the Helsinki Convention[56] provides one possible model for the regional regulation of transboundary waters. It deals with the prevention, control and reduction of transboundary impacts relating to international watercourses and lakes, with a strong emphasis on pollution-prevention. Its principal aims are the protection and ecologically sound and rational management and reasonable and equitable use of transboundary waters along with the conservation and restoration of ecosystems. In July 1997, the first Meeting of the Parties (MOP) to Convention adopted the Helsinki Declaration and a 3-year work plan.[57] The Protocol on Water and Health, signed in London in June 1999, is the most recent result of this work. Current projects include consideration of a compliance review procedure[58] and enhanced public participation.[59] The Helsinki Convention demonstrates how a range of problems related to transboundary water development and management can be addressed in a comprehensive and cooperative fashion within a framework instrument that provides the basis for the elaboration of more specific transboundary water agreements.[60] A recent example of the latter is an agreement between Spain and Portugal, which is based on the principles of the Helsinki  Convention and takes into consideration the provisions of the draft EU Framework Directive.[61] Should this model be applied universally? What role, if any, has the 1997 UN Watercourses Convention given the availability and effectiveness of other regulatory models such as the Helsinki Convention?

4.      The 1997 UN Watercourses Convention[62]

4.1.    Evolution

In May 1997, the UN General Assembly adopted the Convention on the Law relating to the Non-Navigational Uses of International Watercourses, an instrument originating from the work of the International Law Commission (ILC). The Commission was asked by the UN General Assembly to “take up the study of the law of international watercourses with a view to its progressive development and codification” in 1970.[63] By 1991, following consideration of thirteen reports prepared by five consecutive Special Rapporteurs,[64] the ILC successfully completed a comprehensive set of draft articles and adopted these on First Reading.[65] They were modified and adopted by the ILC on Second Reading in 1994.[66] The UN General Assembly decided that this text should be considered by the Sixth (Legal) Committee of the UN, convened as a Working Group of the Whole, with a view to finalising it in the form of a multilateral treaty.[67]

The Working Group of the Whole met for two two-week long sessions, in October 1996 and in March / April 1997.[68] The deliberations of the first session finished on a sour note, as the division of States’ positions on a number of important issues was so profound that there were doubts that a final text could be agreed upon. The second session, also replete with debate, nonetheless resulted in the adoption of a final text. The process, however, involved the remarkable precedent of voting on the most contentious issues.

The four major questions at the heart of the Working Group’s deliberations were: (1) what should be the relationship between the Convention and existing and future water-related agreements;  (2) what should be the relationship between the principle of equitable utilisation, embodied in Article 5, and the no-harm rule, expressed in Article 7; (3) in the context of watercourses management, what rules should govern environmental protection; and (4) what dispute settlement mechanisms should be used in the case of possible disputes between the Parties. A summary of the results reached on each of these issues is presented next.

The issue regarding the relationship between the Watercourses Convention and existing and future agreements, which was raised in the Working Group[69], had not been addressed in the ILC’s draft.[70] Some States (such as Portugal and Ethiopia) argued that certain provisions of the Convention had to be considered as rules of jus cogens and as such could not be derogated frp, by any other norm of international law, including treaty provisions. Other States (Egypt, France and Switzerland) insisted that existing treaties should be left unaffected by the new Convention.[71] Not surprisingly, State positions tended to reflect their particular situations.[72]

The  text of Article 3 was revised by the Working Group and put to a vote before being adopted by 36 votes for, with 3 against (Egypt, France, Turkey) and 21 abstentions.[73] The provision preserves the validity of existing watercourse agreements, but adds that Parties  “may, where necessary, consider harmonising such agreements with the basic principles of the ... Convention”.[74] This, together with the solid international endorsement of the Convention,[75] supports the view that watercourse States will consider the provisions of the Convention in the interpretation of their existing agreements.[76]

A similar result occurred with respect to the issue of future agreements.[77] Under Article 3(3) of the Convention, adopted unchanged from the Commission’s draft, States “may enter” into new agreements, “which apply and adjust the provisions of the present Convention to the characteristics and uses” of the watercourse involved. Thus, States took the view that the norms contained in the document were not rules of jus cogens nor “multilateral treaty rules, which may not be derogated from by agreements between some of the Parties to it”.[78] The result of the discussions led the Working Group to conclude that watercourse States should be free to negotiate their own agreements regarding transboundary watercourses, but are encouraged to consider the rules contained in the Convention.[79] Some insight into the possible interpretation of Article 3 is provided by the Statements of Understanding adopted by the Working Group.[80]

Article 4 (1) of the ILC’s draft, which gives each watercourse State a right to participate in the negotiation of an agreement involving the entire basin, was not revised by the Working Group and is included in the UN Watercourses Convention. However, some States were preoccupied with the nature and extent of rights to participate in partial agreements, i.e. those between some States of the watercourse relating to only parts of it.   The issue arising from the ILC’s draft was whether States not party to a partial agreement should be legally entitled to accede to it. A number of upstream States rejected such a possibility.[81] In the end, the Working Group modified the Commission’s draft to make it clear that only a watercourse State “whose use of an international watercourse may be affected to a significant extent” (emphasis added) by the implementation of such planned measures “is entitled to participate in consultations on such an agreement and, where appropriate, in the negotiation thereof in good faith with a view to becoming a Party thereto, to the extent that its use is thereby affected".[82] Whether this provision has eliminated or reduced the uncertainty concerning the legal grounds for the rights in question is yet to be seen. [83] International practice does not reveal many examples where a State wishing to participate in a particular watercourse agreement would be denied such a request. On the contrary, there are cases where States, particularly those situated upstream, were reluctant to be bound by such partial agreements, perhaps out of fear of limiting the freedom of their own activities on the watercourse.[84]

The most hotly contested issue in the Working Group involved the meaning and the relationship between the provisions of Articles 5 and 7 of the ILC Draft, the principles of reasonable and equitable use and no significant harm.  The focus of the debate was, in particular, on which of these two norms should prevail where available water resources are not sufficient to meet the needs of riparian States? The evolution of these norms during the long study by the Commission provided more than sufficient background for this debate. In the 1991 ILC Draft Articles, the “no-appreciable harm” (Article 7)  had been presented as the cornerstone provision of the entire document.[85] Under that rule, a new or increased use that might cause “appreciable harm” to an existing use would not be permitted, regardless of whether it might qualify as an equitable and reasonable use in accordance with Articles 5 and 6.[86]

This approach significantly differed from the one adopted by the International Law Association (ILA) in its substantial and comprehensive work on the rules governing international drainage basins.[87] The ILA’s 1966 Helsinki Rules provide “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”.[88] This position has been adhered to by the ILA in all of its post-Helsinki work on the law of water resources, most notably in the 1982 Montreal Rules on Pollution,[89] and the 1986 Seoul Complementary Rules.[90]

In response to serious criticisms,[91] the ILC revised Draft Article 7 in 1994.[92] The changes made related to the threshold of acceptable harm, the nature of the obligation to be observed, and the relationship between Articles 5 and 7. Under the revised Article 7,[93] States were required to “exercise due diligence to utilise an international watercourse in such a way as not to cause significant harm to other watercourse States”. This altered both the threshold of permissible harm (increasing it from ‘appreciable’ to ‘significant’) and the nature of the obligation to be observed (from one of result, ‘no appreciable harm’, to an obligation of behaviour, ‘due diligence’).  Thus, significant harm resulting from a watercourse activities conducted with due diligence might not be construed as constituting a breach of international law. Instead, the harm-causing State is simply obliged to consult with the injured State on the extent to which the use is equitable and reasonable and the possibility of  mitigation and compensation.[94] Despite these changes, however, the provision could still be interpreted as endorsing the “no-significant harm” rule as the primary obligation.[95]

The modified Article 7 proved unacceptable to some States.[96] The Working Group again revised the provision, and the following version was finally adopted as Article 7 of the UN Watercourses Convention:

Article 7 Obligation not to cause significant harm

(1) Watercourse States shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.

(2) Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of an agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

Articles 5[97] and 6,[98] changed slightly, and the revised Article 7 were put forward together for voting in the Working Group.  This “package” was adopted by 38 States for, 4 against (China, France, Tanzania and Turkey), and 22 abstaining.[99]

The third major issue debated in the Working Group was the place of rules on environmental protection. The discussion focused mostly on the extent to which rules relevant to this topic should be reflected as general principles of the Convention. Some States, including Finland,[100] the Netherlands,[101] and Portugal,[102] suggested that the principle of sustainable use should be the overarching rule of the entire project, with appropriate references to the precautionary principle and environmental protection.[103] In the end, however, only small changes were made to the ILC’s draft, including a reference in Article 5 to  “sustainable utilisation” and a minor addition to Article 6 that supports weighing all relevant factors, including environmental concerns, in the overall determination of a reasonable and equitable use.[104]

Despite the debate over the role of environmental protection and pollution protection, Part IV of the Convention is almost identical to the Commission’s Draft Articles, apart from some refinements in Articles 21 and 23 aimed at increasing co-operation between watercourse States. Article 21 requires States to “individually, and, where appropriate, jointly, prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other watercourse States or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse”.[105] This provision, as well as those found throughout the Convention, must be read in accordance with the General Principles set forth in Part II. Thus, Article 5 determines the legal entitlement for all uses, and Article 7 prescribes the standard for a State’s behaviour in undertaking activities related to those uses. Article 21 is to be interpreted in that context, with the understanding that pollution should be reduced and prevented. However, the level of pollution harm permitted in a particular case must be determined in accordance with the principle of equitable utilisation.[106]

Finally, dealing with the issue of dispute settlement,[107] States were divided on two issues, whether it was suitable for a framework agreement to contain such mechanisms, and if so, the extent to which these should be compulsory.[108] While one group of States was in favour of compulsory and binding dispute settlement mechanisms,[109] others considered such an approach too rigid and unsuitable for a framework convention[110] and argued that such matters should be left to the discretion of the States concerned.[111] Some States supported the provision included in the ILC’s Draft.[112]

In its final form, Article 33 reflects a compromise of the opposing positions. Apart from recommending the traditional means of dispute resolution, it provides for compulsory fact-finding, [113] which, in its application under the Convention, appears similar to a compulsory conciliation procedure.[114] Article 33 did not win the unanimous support of States in the Working Group: only thirty-three States voted in favour of the provision, five voted against it (including four persistent objectors to its compulsory mechanism: China, France, India and Turkey), and twenty-five States abstained.[115] This closely divided voting (33 States for, 29 against or abstaining) highlights the extent of the discord among States on this delicate issue.[116]

The voting record does not readily reveal the reasoning of States.[117] For example, some States voted against Article 33 because it contained “too much” dispute settlement mechanisms, notably the positions of China and India.[118] Other States, such as Pakistan, Switzerland and Syria were unhappy with Article 33 because it was not strong enough.[119] Turkey took the position that it was unsuitable for a framework instrument to contain any provisions relating to dispute settlement.[120]

The final text of the Convention was adopted by the Working Group of the Whole by a vote of 42 States for, 3 against and 18 abstentions.[121] Following is a summary of the voting record.[122]

TABLE 1 – Voting Record / Working Group of the Whole / Text as a Whole
FOR (42)	AGAINST (3)	ABSTAINED (18)
Algeria, Austria, Bangladesh, Belgium, Brazil, Cambodia, Canada, Chile, Czech Republic, Denmark,  Ethiopia, Finland, Germany, Greece, Holy See, Hungary, Iran, Italy, Jordan, Liechtenstein,  Macedonia, Malawi, Malaysia, Mexico, Mozambique, Namibia, Netherlands, Nigeria, Norway, Portugal, Romania, South Africa, Sudan, Switzerland, Syria, Thailand, Tunisia, UK, USA, Venezuela, Vietnam, Zimbabwe	China,  France, Turkey	Argentina, Bolivia, Bulgaria, Colombia, Ecuador, Egypt, India, Israel, Japan, Lebanon, Lesotho, Mali, Pakistan, Russia,  Rwanda, Slovakia, Spain, Tanzania (*130 States did not vote)

The States that voted for the Convention included a mixture of upstream, downstream and “mid-stream” (i.e. upstream and downstream with respect to different watercourses) States. Although approximately one-third of the voting States did not endorse the text, they did not reject it either. Only three States, including two important upstream riparians, China and Turkey, voted against the text.

Finally, introduced by Mexico and co-sponsored by 33 other States,[123] the Convention on the Law of the Non-Navigational Uses of International Watercourses[124] was adopted by Resolution of the UN General Assembly on 23 May 1997. This time 104 States voted in favour, 26 States abstained and again China and Turkey, as well as Burundi, (all upstream States) voted against.[125] Several States explained their voting positions with respect to the draft resolution.[126] Only Bolivia and Spain were critical regarding provisions of Articles 5 and 7. France focused primarily on the procedure used by the Working Group in adopting the final text, but also expressed some concerns about Articles 3, 33 and Part III.

The voting record in the General Assembly is quite instructive. A solid majority of the UN Members, including a significant number of States sharing important international watercourses, expressed their support for the Convention. At least half of the absent States were island countries with no apparent interest in transboundary water resources. Most of the other States in this group could not participate in the final deliberations and voting because of unrelated circumstances ranging from military conflicts to internal political unrest. With only 3 votes cast against the Convention, the level of endorsement makes it one of the most successful international instruments recently adopted. This is quite surprising given the difficult, protracted and surrounded by controversy history of its drafting. There is no doubt that the final outcome was generally acceptable to both upstream and downstream States, which managed to reach a pragmatic middle-of-the-road solution.         

Containing 37 articles with a 14-article Annex, the instrument was opened for signature until 20 May 2000. Following is a record of the voting on the UN General Assembly Resolution containing the Convention.

TABLE 2 – Voting Record / UN General Assembly / 1997 Convention
FOR (104)	AGAINST (3)	ABSTAINED (27)
Albania, Algeria, Angola, Antigua & Barbuda, Armenia, Australia, Austria, Bahrain, Bangladesh, Belarus, Belgium, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Cambodia, Cameroon, Canada, Chile, Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Estonia, Federated States of Micronesia, Finland, Gabon, Georgia, Germany, Greece, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakstan, Kenya, Kuwait, Laos, Latvia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Malta, Marshall Islands, Mauritius,  Mexico, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Norway, Oman, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Samoa, San Marino, Saudi Arabia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Sudan, Suriname, Sweden, Syria, Thailand, Trinidad & Tobago, Tunisia, Ukraine, United Arab Emirates, UK, USA, Uruguay, Venezuela, Vietnam, Yemen, Zambia	Burundi, China, Turkey	Andorra, Argentina, Azerbaijan, Bolivia, Bulgaria, Colombia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, Uzbekistan (*33 States were absent)[127]

4.2.   UN Watercourses Convention: An Overview[128]

The 1997 Convention is a framework instrument which sets forth general substantive and procedural provisions to be applied by all Parties irrespective of their specific geographical location, or position vis-à-vis other watercourse States, or level of development.[129] To enter into force, the Convention requires endorsement by 35 States  before 20 May 2000.[130]

The scope of the Convention covers primarily non-navigational uses of international watercourses.[131] The latter is defined as “a system of surface and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus”.[132] “Watercourse States”[133] and “regional economic integration organisations”[134] may become Parties to the Convention. Existing agreements are not affected by the Convention, but Parties “may consider harmonising such agreements with the basic principles” of it.[135] Partial agreements are permitted, provided that these do not significantly adversely affecting other watercourse States.[136] Where this might occur, the potentially adversely affected State is entitled to participate in consultations, and where necessary, negotiations, related to such agreement”.[137]

Part II, “General Principles”, sets forth basic substantive rules applicable to international watercourses, having as a cornerstone principle, “equitable and reasonable utilisation”, contained in Article 5. Article 7, “Obligation not to cause significant harm”, and Article 10, “Relationship between different kinds of uses”, must be read in the context of Articles 5, 6 and 7.[138] Article 6 provides a non-exhaustive list of factors and an indication of how these are to be used, in order to ascertain an equitable and reasonable use in accordance with  Article 5. Article 8 imposes a general obligation to cooperate, supported, in Article 9, by a requirement for the regular exchange of “readily available date and information on the condition of the watercourse”.[139] Part III, “Planned Measures”, provides a detailed procedural framework for implementing the general principles of the Convention in the particular context of planned measures. 

Part IV, “Protection, Preservation and Management”, contains six articles dealing with the “protection and preservation of ecosystems”[140] and the promotion of individual and, where necessary, joint measures to prevent, reduce and control pollution.[141] Watercourse states are required to consult with each other to achieve this goal.[142] There are also provisions dealing with “introduction of alien or new species” (Article 22), “protection and preservation of the marine environment” (Article 23), “regulation” (Article 25), and “installations” (Article 26).

Part V deals with “Harmful Conditions and Emergency Situations”, in Articles 27 (“Prevention and mitigation of harmful conditions”) and Article 28 (“Emergency situations”). These offer guidance to States in the event of disasters, water-borne diseases, erosion, emergency situations and so forth. Part VI, “Miscellaneous Provisions” introduces rules related to armed conflict (Article 29), indirect procedures where there are serious obstacles to direct contact between watercourse States (Article 30), data vital to national defence or security (Article 31), non-discrimination (Article 32), and, settlement of disputes (Article 33). The last section, Part VII, “Final Clauses”, includes provisions related to ratification, entry into force and authentic texts. The Annex contains the details regarding the arbitration procedure referred to in Article 33.

4.      The UN Convention’s Response to Water Scarcity and Water Conflicts

Nearly a third of the world’s population will face severe water shortages in 25 years’ time, increasing the danger of war over water supplies.[143] Unless we change our ways, we will soon be facing a very serious water crisis. Consequently, competing claims to water between users within countries and between countries will have to be managed in a cooperative rather than a confrontational fashion. The needs of the poor and of future generations must be secured and issues of quantity and quality of water must be addressed”.[144]

What are the issues that watercourse States, externally and internally, have to deal with in the era of increasingly scarce transboundary water resources? The primary concerns relate to the prevention and resolution of the conflicts of uses resulting from the growing competition for diminishing freshwater resources. The three central issues that arise in this context are: (a) legal entitlement, (b) framework for allocation, and (c) compliance with the agreed watercourse regime. To put it differently: Who has a right to use what water -- when, why and how?[145] Is the UN Watercourses Convention an adequate instrument to respond to these complex questions? How can watercourses States employ the Convention to prevent and, if necessary, resolve international disputes over water?

The UN Convention offers two avenues for determining the legal entitlement to use international waters: (a) as defined by existing or future agreements,[146] and (b) in accordance with the principle of equitable and reasonable utilisation.[147] The mechanisms for determining legal entitlement are also set forth in the Convention, primarily through its procedural rules,[148] including, in the final instance, the dispute settlement procedure.[149] The process is supported by the provisions requiring consultations,[150] joint measures and management. [151]

Where issues of legal entitlement arise, the determination of what is equitable and reasonable will constitute the basis of the overall solution, since it is against this benchmark that the lawfulness of State’s activities is assessed, unless agreed otherwise. How should the principle of reasonable and equitable use be operationalised in a particular case? The Convention facilitates this task by providing a broad but non-exhaustive list of factors to be considered in deciding what qualifies as a reasonable and equitable use in any particular case.[152] The Convention’s procedural rules establish a framework within which States can cooperate, exchange information, provide prior notification of planned measures, establish joint management mechanisms, and so forth. This is a strength of the Convention: a flexible rule governing legal entitlement, accompanied by the requirement of preventive behaviour and complemented by a comprehensive set of relatively detailed procedural rules.

Allocation, or, more accurately, re-allocation of the uses of international waters is to be achieved  through a balancing of all factors relevant to each particular case, an approach, which stems from  the principle of equitable and reasonable use. According to Article 6(2), “the weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole”.[153] This provision, added by the Working Group of the Whole, is taken directly from Article V of the ILA’s Helsinki Rules. The commentary to this article is instructive: “In short, no factor has a fixed weight nor will all factors be relevant in all cases. Each factor is given such weight as it merits relative to all the other factors. And no factor occupies a position of pre-eminence per se with respect to any other factor. Further, to be relevant, a factor must aid in the determination of the social and economic needs of the co-basin States.”[154] This offers support for the proposition that the particular interests referred to in Article 10 (vital human needs) and Article 21 (pollution harm) must be treated within the allocation framework established under Articles 5, 6 and 7.[155]  Existing uses must also be considered in the same vein, i.e. as  “but one factor”, albeit an important one, in the overall assessment of what is reasonable and equitable.[156] In short, the operational mechanism for the allocation framework established in the UN Watercourses Convention, borrowed from the ILA’s Helsinki Rules, is flexible enough to permit consideration of all interests relevant to each particular case.

Do the rules governing legal entitlement and the framework for allocation contained in the Convention respond to conflicts of uses involving the environment? Critics claim that the Convention fails to adequately prohibit pollution harm[157] and to safeguard ecosystems.[158] The “mitigated-no-substantial-harm” rule has been recommended as a remedy to address the first ”shortcoming”.[159] This rule “provides a less flexible standard” more suited to conflicts over pollution harm, since it permits a “limited weighing between the interests which cause transfrontier pollution and the interests which are impaired by that pollution”.[160] However, applying such a “limited” approach may lead to inequitable results. Focusing on the competing interests over pollution harm would ignore other relevant factors such as the “existing and potential uses of the watercourse”[161] and “the availability of alternatives, of comparable value, to a particular planned or existing use”.[162] One could envisage a planned measure that would cause transboundary pollution harm that, nonetheless, could be considered to be reasonable and equitable given additional arrangements negotiated between the States concerned. For example, a planned polluting activity by an upstream State might be regarded as a reasonable and equitable use if it is accompanied by effective efforts mitigating the adverse impacts in the (downstream) affected State. This may be accomplished in a number of ways, including the installation and operation of treatment plants in the affected State,[163] or even more innovative solutions, such as transboundary trading of “virtual water”[164] or the swapping of other beneficial uses.[165] The idea that planned measures involving pollution harm should be subjected to a “limited weighting” system aimed at balancing the competing interests of the particularly affected parties would reduce the incentive for States to seek more comprehensive solutions to the problems.

Application of the “mitigated-no-substantial-harm” rule may also lead to unequal bargaining positions of States involved in consultations or negotiations over planned measures, which may cause pollution harm. Two inequities may result. Firstly, since the rule is founded on the prohibition of substantial harm (albeit “mitigated”), the State wishing to undertake such a planned measure may find itself in an a priori defensive position. Secondly, the focus on “competing interests” increases the likelihood of adversarial claims. The principle of equitable and reasonable use, on the contrary, permits each State to present all factors relevant to the particular situation, places the parties on equal grounds and facilitates, both in process and in substance, a more “needs”-focused approach. This, in turn, levels the playing field between the parties and encourages the search for solutions by technical experts, as opposed to assertions of legal “rights” advanced through a series of claims and counter-claims. This is important, since it is likely that the State desiring to undertake the new activities is the less economically developed, and, thus, often the “weaker” party in the negotiations.[166]

In sum, the “mitigated-no-substantial-harm” approach, due to its serious shortcomings, may negatively affect a watercourse State’s desire and ability to seek equitable solutions in their utilisation and development of transboundary waters. The principle of equitable and reasonable use has the capacity to consider factors relevant to pollution harm, and has the added benefit that this can be done through linkages with issues not necessarily tied to pollution, i.e. viewed and addressed in the overall context of inter-State relations. The Convention’s approach permits variable “weighting” to be given the factors put forward in each particular case and this may often strengthen the case against pollution harm. Thus, even insignificant pollution may be considered inequitable where it might destroy pristine water resources. Equally, a joint assessment by watercourse States of how their water needs may be met, might lead to “trade-offs” of economic and other benefits, or to other special arrangements, which may reduce  polluting activities overall. Such results might not be achievable under the “mitigated-no-substantial harm” approach.

The second “green” criticism of the Convention, that it is not an “ecosystem-oriented” instrument, must be considered in its context. It must be recalled in this respect that some proposals to “strengthen” the Draft ILC rules by more emphasis on sustainable development, precaution, protection of ecosystems and so forth, and to include these obligations as part of the general principles of the Convention failed to materialise.[167] One explanation for this may be that it was not within the purview of the ILC to address water-related environmental issues in great detail. The UN General Assembly requested the ILC to “take up the study of the law of international watercourses with a view to its progressive development and codification”.[168] States were asked to present their views “regarding, inter alia, the scope of the proposed study, the uses of water to be considered and whether the problem of pollution should be given priority, the need to deal with flood control and erosion problems, and the interrelationship between navigational uses and other uses”.[169] Based on States’ responses[170] the ILC recommended the Special Rapporteur to rely on the outline of uses contained in question “D” of the questionnaire, “but taking into account the various suggestions made by Governments”.[171] It was also recommended that “pollution problems should, so far as possible, be dealt with in connection with the particular uses that give rise to pollution”.[172] From the outset States focused on the broad range of water uses, including the problem of pollution as one such use. Thus, the main task of the ILC was to elaborate rules designed to govern States’ behaviour with respect to transboundary waters in light of the entire range of (competing) uses, including pollution, but not focusing exclusively on it.

It is alleged in the same vein that international water law, as embodied in the UN Watercourses Convention, lacks the ability to meet the imperatives of environmental security and sustainable development. This “unfortunate” trait of the watercourse law is rooted primarily in its immediate focus on the interests of the watercourse States and in its sovereignty-based orientation.[173] “Rather than reflect the growing range of common environmental interests, the law of international watercourses continues to rely primarily upon competing sovereign rights of riparian states as conceptual devices for the limitation of sovereignty. If international law is to meet the challenges of the water, the principles of ecosystem orientation and sustainable development cannot remain at the periphery, but must move to the conceptual core of international watercourse law”.[174] It is argued, in particular, that the customary law principles of equitable utilisation and no significant harm “do not effectively address environmental security concerns.”[175]

Thus, there are persistent calls to the effect that the “notion of sustainable development must become anchored in international watercourse law”.[176] It is asserted that the rules and regulations on sustainable water use are not to be found in the Watercourses Convention, as opposed to the Rio Declaration, Agenda 21 (chapter 18) and other non-binding and binding instruments, including the 1992 UN ECE Helsinki Convention.[177] The latter, in particular, is praised for its ecosystem-oriented approach, which puts this instrument in “stark contrast” to the Watercourses Convention.

It is questionable whether achieving “environmental security”, whatever this term may mean in practice,[178] should be considered as an ultimate goal of international water law; unless, of course, “environmental security” is construed as embracing the entire range of water-related economic, developmental as well as environmental interests. However, neither the 1997 Watercourses Convention, nor its cornerstone principle of equitable and reasonable use is aloof to environmental concerns. The ILC’s normative development effort, albeit cautious, to introduce the ecosystem concept to international watercourse law has been admitted even by its critics. Rather than paying lip service to fashionable but vague and legally imprecise concepts of sustainable development, precaution and intergenerational equity by directly incorporating them, the Convention accommodates them in a more subtle but legally meaningful way. As was noted before, the “green” provisions of the 1997 Convention - Articles 5, 6, 7, 20, 21 and 23 – adequately reflect these notions. They not only allow but require States to protect the ecosystems and the environment, as well as to attain optimal and sustainable utilisation of an international watercourse.[179] 

Further, there is an obvious failure to appreciate the amplitude and flexibility of the principle of equitable and reasonable use. The perception of what is reasonable and equitable is not frozen in perpetuity reflecting the predominant views of, say, the beginning of the century. On the contrary, it cannot but change with time in response to new problems and challenges. The notion of equity could be invoked and used by concerned States in an intertemporal context in order to protect the interests of future generations, as well as present, from the abusive current practices. The notion of “reasonableness” adds another crucial safeguard against unsustainable water use.

One can hardly object to the argument that “equitable utilisation and sustainable utilisation are not the same – a use may be equitable as between two parties without necessarily being sustainable.”[180] But should this necessarily lead to “the most radical re-writing of the law relating to international watercourses since the River Oder case” in order to place the equitable utilisation “in a broader context of sustainable development”.[181] What about reasonable utilisation – an integral part and requirement of the fundamental principle of the watercourse law – so easily forgotten in this line of argument? Can unsustainable water utilisation practices be treated today as reasonable, given our current knowledge of the interdependence between environment and development? Is “reasonable utilisation” not sufficient to fulfil the function of “sustainable utilisation”? Is it always necessary to introduce new and new notions, often as ambiguous and imprecise, as allegedly the ones to be replaced?

As to the preference given to the regional 1992 Helsinki Convention vis-à-vis its global counterpart, these are indeed different instruments pursuing different objectives. What is necessary and relevant for Europe, the most (apart from North America) industrially developed region with capacity to implement the most advanced and far-reaching environmental requirements, is not always suitable for many other parts of the world. While in Europe pollution of transboundary watercourses represent the most serious challenge, this is not necessarily the case in other regions, where competition over increasingly scarce water resources overshadow all other concerns.  However, even within the geographical scope of the Helsinki Convention, many countries, especially in Central and Eastern Europe and Central Asia, find it increasingly hard to comply with sophisticated and complex conventional provisions. The often suggested imposition of the same requirements on developing nations will in practice make them non-implementable, which will defeat the very objective of the proposed regime.  

Finally, it is often contended that “from an environmental protection and security perspective, giving priority to the transboundary harm rule is preferable”.[182] Some go even further, insisting that “under international watercourse law, …a more established principle than that of equitable and reasonable use is the obligation of States not to cause significant harm”.[183] This view, primarily espoused by the “green” advocates, holds that granting priority to the no-harm rule would best ensure environmental protection. It must be asked whether implementation of the principle of equitable and reasonable use could not accomplish this same goal. Given the increasingly strong environmental pressure, there is no doubt that environment interests will always be included among the most important “relevant factors” together with an indication of the “strong” weight to be given to such factors, in the assessment of a reasonable and equitable use. This, of course, will depend on the circumstances particular to each case, which would have to be evaluated on its individual merits. Nonetheless, as was already shown, there are important advantages for watercourse States to come to the bargaining table under the umbrella of equitable utilisation, as compared with the “stick” of no-harm.[184]

The recent decision in the Danube case[185] (Gabcikovo-Nagymaros case), between Hungary and Slovakia, the only decision involving an international watercourses rendered by the International Court of Justice over the last 60 years,[186] is particularly relevant and instructive in this respect. The decision reanimated the academic debate[187] over the wide range of issues, from the interaction of international environmental law and the watercourse law to the role of the concept of sustainable development. This is not the place for a detailed analysis of all the issues of that case, however, some of the points raised deserve attention. The case revolved primarily around the issues of treaty law, particularly the question whether Hungary was justified in suspending and later abandoning the construction works on the Danube, which were contemplated and agreed to in its 1977 Treaty with Czechoslovakia. Hungary’s refusal to proceed with these works prompted Slovakia to implement a “provisional solution”, which involved construction of a dam in its own territory and a temporal diversion of the Danube waters. Each side claimed that the other had breached its international obligations under either the 1977 Treaty or general international law.

The Hungary’s position was based mostly on the allegations that irreversible environmental harm would result from the implementation of the works. It tried to justify its unilateral termination of the 1977 Treaty by the reference to a “state of ecological necessity”. The Court rejected this argument, having not found that the situation was of a “grave and imminent peril” that would threaten an “essential interest” of Hungary. The Court also supported and confirmed the legal validity of the 1977 Treaty. Regarding Slovakia’s unilateral diversion of the Danube, the Court referred to Hungary’s “basic right to an equitable and reasonable sharing of the resources of an international watercourse”.[188] The Court found that Slovakia “failed to respect the proportionality required by international law”[189] and thus deprived Hungary of its “right to an equitable share of the natural resources of the Danube”.[190] The Court added: 

Modern development of international law has strengthened the principle expressed in the River Oder case that “the community of interest" in a navigable river becomes the basis of a common legal interest for non-navigational uses of international watercourses.[191]

To sum up, the Court found Hungary in breach of its international obligations under the 1977 Treaty and found also that Slovakia had violated international law by putting into operation its provisional solution. In so doing, the Court emphasised, in particular, the importance of balancing environmental and developmental concerns.[192] The parties to the dispute were requested by the Court to conduct negotiations to ensure continued compliance by each side with the 1977 Treaty. These negotiations were to find “an agreed solution that takes into account the [1997] Treaty . . . as well as the norms of international environmental law and the principles of the law of international watercourses”. [193]

The decision is important in many respects. It explicitly referred to the 1997 Watercourses Convention as an authoritative statement of the law of international watercourses. It is particularly remarkable given the fact that by that time the 1997 Convention had not been ratified by a single State. The Court also implicitly endorsed the principle of equitable and reasonable utilisation as a governing principle of the watercourse law. The ICJ decision contained “no mention of the sterile and misconceived debate over the relationship between Articles 5 and 7” of the UN Watercourses Convention.[194] This happened for one simple reason: the Court was unable to ascertain any significant environmental harm inflicted on Hungary, apart from a legal injury to its sovereign right to a reasonable and equitable share of the Danube waters. If the situation had been different, i.e. if there had been prove of significant harm resulting from the actions of Slovakia, the Court could not easily avoid dealing with this issue.

Apart from the environment focused criticism, the Convention is often maligned as offering no fixed formula for determining legal entitlement,[195] or indeed, as being void of any substantive rules.[196]  The latter observation is quite surprising given the number of well-established customary rules of international law, such as the principles of equitable and reasonable utilisation, no-significant harm and the procedural rules of prior notification and exchange of information, codified by the Convention. The former comment, however, merits closer examination. It is claimed that “the principle of equitable use justifies opposing claims . . . without offering a resolution . . .  [it] is little more than an open-ended framework for political compromise without an independent legal identity”.[197] It appears, on the contrary, that the very fact that this principle does “justify opposing claims . . . without offering a resolution” must be considered as a particular strength of the Convention, since it leaves each case involving competing claims to be judged (and not pre-judged) on its own merits. This may, or may not, result in a “political compromise”, but the rule, and its implementation, have an independent legal identity  tied to the broader legal concept of allocational fairness. This is especially relevant to the management of scarce water resources, “when moderate scarcity threatens to become unmanageable scarcity unless some means of allocation is devised which caps what would otherwise be an unbridled and ultimately self-defeating scramble for too little by too many.[198] It is correctly asserted that an allocational choice “must meet the test of perceived fairness [if] it is to suceed in allocating. . . . the pursuit of a shared perception of fairness is the necessary starting point for devising any lasting allocation rules, rules that are likely to command respect and pull towards voluntary compliance”.[199] A rule of allocation that assigns certain factors (such as “no-significant harm”, pollution prevention, protection of the environment and vital human needs) special priority, unequivocally, may foreclose the possibility of seeking fair and legitimate solutions. A system of “automatic trumping entitlement” precludes not only agreement, but “negotiated agreement”, which becomes superfluous in such a context.[200] A rule providing general principles guiding allocation may be vague, but, “to some extent indeterminacy is inherent in all rule-creating discourse”.[201]  This indeterminacy, however, may lead to legitimacy gains “achieved when a law’s standard opens a fairness-discourse and avoids a rigid standard that may produce extreme unfairness in practice”.[202] This certainly may be the case here.[203]

The open-ended principle of equitable and reasonable use should not be regarded as a unique legal phenomenon. One can refer to a number of legal standards based “reasonableness” or “equity”. For example, the cornerstone rule of the law of torts, the “reasonable man (woman) test” has worked well in hundreds of years of litigation, and continues to do so. Is there any reason that a “reasonable use” approach could not also work well in practice?[204] In the international law of the sea, “equitable principles” established themselves as both the primary method and ultimate goal of delimitation, as opposed to the more concrete method of equidistance. Given the Convention’s detailed and extensive requirements for consultations, cooperation, exchange of information, prior notification and joint measures, the foundation is laid for a “fairness discourse” based on needs, as compared with the more adversarial, rights-based claims. The principle of reasonable and equitable use undoubtedly incorporates factors related to protection of vital human needs, protection of ecosystems and the sustainability of water use.[205]  Further, a watercourse State’s needs may be met through mechanisms not necessarily directly connected to “blue” water[206] management and allocation. Instead, solutions based on a broader approach may result in a more efficient use of transboundary water resources.[207]  

5.      Issues of Implementation and Compliance

The implementation of the principle of equitable and reasonable use can be facilitated through the work of effective institutional mechanisms.[208] While some watercourse States have resisted joint management,[209] many watercourse agreements establish an international body with a specific mandate to supervise their implementation. Such organs could play an important role in monitoring, and even facilitating, compliance and dispute avoidance.[210] Special Rapporteur Schwebel stated:

Ideally, system States should create, where they have not already done so, the necessary machinery for authoritative ascertainment of equitable utilisation whenever the need arises. And this machinery for ascertainment of equitable use, as well as for working out the technical and compensatory adjustments that often are required, should not in the first place be considered "dispute settlement". Rather, such determinations, including where necessary their attendant, often complex, shaping of the package of modifications of use and of measures for avoidance of harm, need to be an integral part of the system States' affirmative cooperation in their international watercourse system. In the past, such machinery has been lacking in most international watercourse systems, and the defensive, one might say "adversary", context within which use conflicts were taken up all too often gave rise to acrid and protracted disputes.[211]

The 1997 Watercourses Convention addresses these issues in a number of ways. Firstly, by permitting economic integration organisations[212] (REIOs) to become parties, it encourages their members to make coordinated efforts within such organisations in achieving the objectives of the Convention. It is noteworthy that the EU Draft Water Framework Directive refers to both the 1997 UN Watercourses Convention and the 1992 Helsinki Convention as the guiding international instruments with respect to the European Community transboundary water resources. Secondly, by consistently referring to joint mechanisms, it encourages States to establish such mechanisms in order “to facilitate cooperation on relevant measures and procedures in the light of the experience gained through cooperation in existing joint mechanisms and commissions in various regions.”[213] Article 24 clarifies what kinds of “management” joint commissions might undertake.[214]

These measures are important not only in managing water scarcity and avoiding dispute, but also in facilitating compliance. However, the UN Watercourses Convention, apart from the dispute settlement provisions[215] and a reference to non-discrimination,[216] offers no other guidance to States on how they might attempt to ensure the integrity of their watercourse regimes. While this would appear consistent with state practice in the field,[217] a regional model for the elaboration of a strategy and framework for compliance is currently evolving under the auspices of the UN ECE, in particular, under the umbrella of the 1992 Helsinki Convention.[218] The Parties to that instrument are at present engaged in developing a strategy and framework for compliance verification and facilitation.[219] The London Protocol on Water and Health[220] and the Aarhus Convention,[221] both concluded under the auspices of the UN ECE, each contain provisions regarding the monitoring of compliance. It is clear that measures aimed at facilitating compliance, based on a non-confrontational and non-judicial approach, can go a long way to ensure the ongoing peaceful regulation of international watercourses. The topic is a complex one, not yet fully studied in the context of transboundary watercourses.[222] Public participation, an important element of a compliance review process, is another area that could be further examined in the context of international watercourse regimes. It is strongly recommended that States consider compliance and public participation when they negotiate their international watercourse agreements.

6.      Beyond the UN Convention: The Need for an Interdisciplinary Response to Water Scarcity

Sustainable river basin management requires proper study, sound understanding and effective management of water systems and their inherent components and processes (groundwater, surface water and return water; quantity and quality; biotic components; upstream and downstream relations. . . . the water itself should be seen as a social, environmental, and economic resource, and each of these three aspects must be represented in the political discourse.”[223]

Development was long seen as a function of economics and engineering. More recently, social scientists, political scientists and environmentalists have started to play an increasingly important role in what has come to be called ‘sustainable development.’ For development to be truly sustained, however, it has to be a comprehensive process in which all disciplines and professions fully participate. Law, in particular, as the formal instrument of orderly change in society, plays a pivotal role, even though this role has not always been readily recognised. [224]

The complex issues arising out of water scarcity, generally, and in matters relating to legal entitlement, framework for allocation, and monitoring compliance, in particular, require more than a legal response. The input of the technical water experts, across the entire horizon of water resources management, including engineers, hydrologists, economists, social scientists, and so forth, is equally important.[225] A range of experts is required to identify the factors relevant to the determination of an equitable and reasonable use. New concepts, such as “green” water[226] and “virtual” water[227] could be further developed and employed effectively in the response to transboundary water problems.

7.      Conclusions

The legal response to water scarcity has a solid foundation in the UN Watercourses Convention. Its primary rule of equitable and reasonable utilisation, supplemented by the requirement of  preventive behaviour in Article 7 and a well developed body of procedural rules, provides States a comprehensive framework to address the multitude of issues arising out of  present and future conflicts over water. The German Government’s initiative to encourage ratification of the UN Convention[228] is well-founded. Regardless of whether or not the Convention comes into force, it is destined to play a major role in the management of transboundary watercourses as an authoritative statement of relevant international law.