The water norms presented above have evolved into a framework not only for river basin management but for international relations over water, too. In the form of the UN Convention, the most comprehensive body of law has been established so far. The Convention is meant to be a set of guidelines to augment national laws and river basin treaties.135 Individual riparian nations will remain, in the strict sense of the word,
masters of their laws regarding water regulation. If states decide to ignore the Convention or act contrary to these guidelines, they may do so without automatically being forced by a UN Security Council move. The sovereignty of individual states remains untouched. It continues to be the deciding factor as laid out in the UN Charter. It is the governments of these states that are to conclude agreements on particular river basins, with detailed provisions that reflect the specific conditions of a given river.
The Convention implicitly promotes the conclusion of such agreements (Art. 3). While some governments have suggested that the establishment of a binding universal water law should be the ILC’s objective, others have stressed the necessity to arrive at a universally acceptable basis of future river treaties, rather than making them obsolete. It appears doubtful whether such a global water law, with all necessary details, would in fact be feasible. To have an effect on river management practise, a global law might not be essential, as long as a commonly accepted set of rules exist to which all parties may refer in case of dispute. As Salman points out, the growing number of river treaties reflects a widespread awareness of the relevance of water norms in terms of progressive river utilization.136 While disputes do exist over many river basins, very few have shown a tendency to escalate into violent conflict. That may be seen as a sign that the spirit of cooperation, as envisaged in the Convention, has taken hold. Some experts have taken a more cautious position, warning of the threat of conflict over water against the backdrop of growing water scarcity. Wouters points at river basins that lack binding agreements, like the Euphrates-Tigris (Turkey, Syria, Iraq) or those with agreements in place that have proven insufficient, like the Jordan River (Israel, Syria, Jordan, Palestine).137
133 Jörg Barandat: Wasser – Kooperation oder Konfrontation? Baden-Baden: Nomos, 1997, p. 413.
The author participated in the discussions of October 1996 as an observer.
134 The term interdependence has been introduced in later ILC discussions on the Helsinki Rules to
describe the relationship of riparian states regarding groundwater aquifers that belong to a basin system (hydraulic interdependence). This term – applied in Article 2 of the ILC Seoul Rules on International Groundwater, 1986 – has not been entered into the UN Convention of 1997. See Kliot, supra, appendix 3, p. 286, for an excerpt.
135 McCaffrey: The contribution of the UN Convention …, supra, p. 252.
136 Salman A. Salman and Laurence Boisson de Chazournes: International watercourses: enhancing
cooperation and managing conflict, in: S. Salman and L. Boisson de Chazournes, eds.: International watercourses. Enhancing cooperation and managing conflict. Washington, D.C.: World Bank, 1998, p. 168-170.
137 Patricia Wouters: The legal response to international water conflicts: the UN watercourse
convention and beyond; German Yearbook of International Law 1999, vol. 42, Berlin: Duncker & Humblot, 2000, p. 297-300.
When applied to particular river basins, the limitations as well as the potential of the Convention become obvious. Citing the cases of the Nile, Yarmuk-Jordan and Euphrates-Tigris rivers, Kliot states that neither the principle of equitable utilization or cooperation has played an important role in the management of these rivers, thus increasing the threat of violent conflict.138 To establish quantities of water to be
allocated to users even where agreements are in place may be very difficult as hydrological and climatic factors are subject to unforeseeable changes. Kliot stresses that – as provided in both the Helsinki Rules and the Convention – the factors to be taken into account regarding equitable utilization cannot simply be given equal importance at any time; instead in drought conditions, climatic factors would have to be given priority over other factors. The damage caused to co-riparians on the Nile as a result of Egyptian water projects would fall under the compensation provision in Article 7 of the Convention, yet many communities have instead been displaced and relocated to other areas, often without equivalent economic opportunities. The option of alternative resources (Art. 6 g) could not be used by some of the poorer riparian countries simply because of a lack of funds to develop them.
Wouters points at the built-in resilience of the Convention that allows a flexible rule governing legal entitlement, with the added requirement of preventive behaviour supplemented by a comprehensive set of relatively detailed procedural rules.139 This flexibility would leave room for particular provisions, either to specify those outlined in the Convention, or to add further provisions.
In sum, the above criticism underlines both the importance of the Convention as a set of guidelines and the relevance of individual river agreements. The ongoing discussion of water laws in general and the Convention in particular can be summarized by two antagonistic positions:
a) the drive to regulate water management through binding global rules,
b) and the drive to retain final control over water regulation with the governments concerned.
Both are generally motivated by an awareness of the consequences of growing water shortage.
The Convention, though not covering all aspects of water utilization, does play an important role as it defines the legal entitlement to water and identifies the rights and obligations tied to water use.140
As the UN Convention of 1997 focuses on international watercourses and rules to be observed by the respective riparian states, it is not limited to state-to-state interaction over river management but implicitly includes intra-state action, too (Art. 1, 1). The perspective of river management established in the Convention is that of the river, i.e. the river is identified as a unit that requires coordinated management (Art. 2a). As a result, the UN guidelines in principle also apply to the case of the Indus River and the provinces of Pakistan which share its waters. That means that agreements concluded between the riparian governments – national and sub-national – should adhere to the principles outlined in the Convention. The riparian nations of the Indus Basin, namely
138 Nurit Kliot: Water resources and conflict in the Middle East. New York: Routledge, 1993, p. 266-
270.
139 Wouters: Legal response, supra, p. 320.
140 Patricia Wouters: The relevance and role of water law in sustainable development of freshwater:
Pakistan and India, have abstained from the vote on the Convention.141 India stated that the provisions on dispute settlement curtailed the autonomy of the central and state governments of India to employ individual instruments of dispute management, as envisaged in Indian law, like in the Inter-State Water Disputes Act (1956). Pakistan, on the contrary, had expected the provisions of the Convention to be stricter. Both countries, as will be seen in the discussion of the post-1947 dispute, have developed a specific mechanism to handle open questions emanating from a treaty arrived at in 1960. This treaty is still in place, even though open issues between the two sides remain to be solved. Both sides have adhered to this agreement ever since, making the Indus Waters Treaty an often cited example of a solid water agreement.