When the draft convention, in its final form, reached the UN, in 1997, it received the approval of the General Assembly.123 This achievement, at once a milestone towards establishing a global water law and a workable present-day orientation for on-going negotiations, did also highlight the difficulties over the above critical points once again.
The Convention on the Law of the Non-Navigational Uses of International Watercourses, by its official name, represents the status quo of international law on rivers. By its formal status, as approved by the UN General Assembly, it is non- binding; to become a binding law, it would have to be passed by the UN Security Council. This formal status alone, however, does not indicate the actual relevance that the Convention will have on existing water arrangements and their implementation, nor on the conclusion of such arrangements in the future. McCaffrey, a former Special Rapporteur for the ILC during the drafting of the Convention, argues that (the Convention’s) influence is more likely to derive from its status as the most
122 The very definition of watercourse system or drainage basin was in dispute until the final stage of
the draft, especially with regard to the introduction of canals and link canals that would extend the basin area and even join several basins, thus widening the riparian community; eventually, vague yet all-encompassing concepts were given preference – comprehensive enough to cover all the elements involved in any given case and neutral enough for riparian states not to think that their interests were being neglected: Yearbook of the International Law Commission 1983 Vol. 1, p. 186, para. 18. As one observer noted, the Helsinki Rules might have been more advanced in some sense than the ILC convention, as the former defined rivers as hydrological units, whereas the latter applied a geographical concept, ibid., para. 29.
123 Document text reproduced in: Patricia Wouters: National and international water law: achieving
equitable and sustainable use of water resources, in: Water International, Vol. 25, No. 4, 2000, p. 507ff. Wouters, p. 504, points out that one of the strengths of this concept lies in its flexibility, allowing for unilateral development and power politics … where the substantive rules and procedural requirements … are missing. In that case, of course, the potential negative consequences, like conflict over water, will have to be borne by all parties.
authoritative statement of general principles and rules governing the non-navigational uses of international watercourses and its success does not depend on whether it enters into force.124 The Convention, regardless of its nominal status, has evoked a growing academic dialogue on the importance of water management, water sharing and water regulation in light of rising demand for water.
In the Convention, the problem of the upstream – downstream discrepancy, central to the stated goal of equitable and reasonable utilization, was addressed in an indirect form only, following the course set by the Helsinki Rules. Factors to be observed by all basin states are
- natural geographical, hydrological, climatic and ecological factors - social and economic needs of the states concerned
- the dependency of people within the basin
- effects of utilization by one state on that of another - existing and potential future uses
- conservation and development of the river, including the respective costs - availability of alternatives.
In essence, these factors, detailed in Article 5 of the Convention, are in line with Art. 5 of the Rules. The obligation not to cause significant harm (Art. 7) especially (but not exclusively) points at upstream states, requiring all riparian states to take all appropriate measures to prevent the causing of significant harm to other watercourse states, in other words, measures to protect downstream states. A definition of significant harm is not given, but has to be interpreted in the context of Art. 5, i. e. the right to utilize a river in an equitable and reasonable manner. In the case where significant harm has been caused, all appropriate measures to eliminate or mitigate such harm, including compensation, are to be taken.125 The requirements of vital human interests are to be given special regard (Art. 10).
The lack of precise definitions and directions, especially with regard to central demands of the Convention like equitable and reasonable utilization, involves the risk of arbitrary interpretation. This deficit can render some provisions of the Convention obsolete in a given case because the state actor easily evades accountability without openly counteracting respective provisions. As Beaumont points out, the list of factors relevant to equitable and reasonable utilization (Art. 6) lack priorities as each factor may be considered equal by any riparian state involved. Thus the provision is subject to open-ended debates undermining the main purpose: cooperative river management. The Convention’s practical relevance suffers because it may be too difficult to establish a common ground on all the factors that actually are important in a particular case (river).126
124 Stephen McCaffrey: The contribution of the UN Convention on the law of the non-navigational uses
of international watercourses; International Journal of Global Environmental Issues, Vol. 1, No.3-4, 2001, p. 250.
125 This clause has been elevated to a separate, more detailed Article (7), from the previous provision
within Art. 5 of the Rules, reflecting the growing attention given to this principle. Wouters points out that – contrary to the Helsinki Rules – the causing of significant harm might not constitute a breach of international law. 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. 310.
126 Peter Beaumont: The 1997 UN Convention on the law of the non-navigational uses of international
Interestingly, while the spirit of cooperation has been given special mention (unlike in the Rules), the issue of compensation has been treated with less attention. This may be read as reluctance on the part of some riparian governments to quantify water utilization and respective damages, thus opening a Pandora’s box to complex legal battles. More likely, it was not elaborated in more detail because governments, through the agreements they would reach within a particular basin, would prefer to reserve their political freedom to arrive at a mutually satisfactory solution in such a case.
The overall picture of the Convention is that of a compromise. While equitable sharing (Art. 4 of the Rules) has been replaced by equitable utilization (Art. 5 of the Convention), cooperation is stressed as a duty founded in the collective interest to protect the watercourse as an ecological and hydrological system (Art. 5 of the Convention). As Scheumann and Klaphake point out, the delegates to the General Assembly clashed alongside the upstream – downstream divide of interests: downstream parties tended to stress the prevention of harmful activities whereas the upstream parties voted against unacceptable limitations on upstream water utilization, thus defining equitable and reasonable in an opportunistic sense.127 In principle, to untie this knot would have meant to make precise statements in quantitative and qualitative terms. But that would only be feasible for individual rivers, not for rivers on a whole. As a result the clauses of the Convention are not as strict as some parties would have wanted them to be. Cooperation is but an appeal, not an obligation in legal terms, and there is no penalty for ignoring this appeal or for departing from the general principles laid out in the Convention. The exchange of river data as a means of river protection points as much at cooperation as it points at the environmental and economic dimensions of river management (Art. 9 - 18).
The settlement of disputes, in both the Rules and the Convention, is to be conducted in a peaceful manner, through negotiation or arbitration (Art. 33).128 This provision is the lengthiest in the Convention, and it differs in some aspects from the corresponding articles in the Helsinki Rules (Art. 26 – 37). Most importantly, the Convention stresses the obligation of each basin state to work towards a peaceful, mutually agreeable solution of disputes, whereas the Rules merely recommend state governments to follow a peaceful course. This change in wording throughout the provision is significant and is to be seen in line with serious demographic and economic changes in many large river basins that foreshadow mounting pressure on existing water sources.
The procedure envisaged to settle disputes clearly underlines the sovereignty of riparian nations as the chief actors in all matters relating to river management. Negotiations are the primary instrument to arrive at an agreement, as each riparian state is entitled to request negotiations or the appointment of a fact-finding new workable guidelines; Water Resources Development, vol. 16, no. 4, 2000, p. 482. Kliot, supra, p. 266.
127 Waltina Scheumann, Axel Klaphake: The Convention on the law of the non-navigational uses of
international watercourses. Bonn: Deutsches Institut für Entwicklungspolitik, 2001, ch. 2.2.3.
128 The formulation of this Article (33 in both the Rules and the Convention) is stricter in the
Convention: parties concerned shall seek a settlement .. by peaceful means; the Rules simply recommend the states to form a commission etc.: It is recommended that the states concerned agree to submit their legal disputes to a tribunal etc. For a comprehensive comparison: Michelle R. Sergent: Comparison of the Helsinki Rules to the 1994 UN draft articles: Will the progression of international law be dammed? Villanova Environmental Law Journal, vol. 8, no. 2, 1997.
commission. This commission is to be in charge of settling the dispute. The high status of such a commission is indicated by the demand that its members be allowed access to the territories concerned and entitled to obtain all relevant information. Its report is to be seen as a binding decision to be implemented by the parties involved. Only in cases where a commission is unable to reach a solution, a supranational body may be resorted to, in the form of the International Court of Justice or an arbitrary tribunal. This means that state governments retain control over the process of settling a dispute. By choosing to establish a tribunal, they can avoid the International Court of Justice which would otherwise have to be involved.129
Aspects of resource preservation and environmental rehabilitation have gained due mention in the ILC Convention, reflecting growing international concerns over the state of water resources.130 Rivers as ecosystems in their own right (Art. 20 – 24) have not been mentioned in the Helsinki Rules at all. The protection of water sources is assigned to the governments of riparian states as an element of their individual national responsibility, yet within the context of their riparian status: In order to apply appropriate measures for the protection of rivers, watercourse states shall, at the request of any of them, consult with a view to arriving at mutually agreeable measures and methods to prevent, reduce and control pollution of an international watercourse (Art. 21). Accordingly, the exchange of information on existing or planned water projects that might have an effect on other riparian states has obtained greater importance in the Convention (Art.11 – 19).
In sum, the Convention can be credited with establishing a modus operandi and a set of guidelines (Caflisch) that have received the widest possible recognition. 131
This fact may be more important than its formal status which is below that of a binding law.132 The legal position of sovereign states – both as upstream as well as downstream parties – remains unchanged and unchallenged. To realize the virtues of cooperation is as much a prerogative of the sovereign state as the right to forego them. Rivers, by their hydrological nature, seem to induce riparian states to cooperate in order to reap benefits. These benefits may come in the form of economic potentials, direct gains from power generation or indirect gains from preventing costly environmental damage from floods. The scope and quality of cooperation is to be decided by the parties concerned. That also applies to existing treaties. The fact that, as Barandat observed, most states articulated particular national interests and preferred the ex post sanctioning of existing treaties does not
129 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. 314, 316. The voting record of the Convention shows that, while many countries agreed on the basic principles of cooperative river management, some either preferred stronger rules regarding dispute settlement or demanded that this procedure should remain a prerogative of the parties concerned.
130 The Convention’s reference to environmental concerns is a direct outcome of the first UN
Conference on Environment and Development (UNCED, Rio de Janeiro, 1992). Cf. Beaumont, supra, p. 478.
131 Caflisch: Regulations, supra, p.10: an agreement on whether the Convention would have to be
taken as ius cogens, or imperative law, could not be reached; instead, a “concession” was entered into the Convention, guaranteeing the status of existing treaties (Art. 3), yet in a vague manner.
132 The WWF has called for a global water law – see http://assets.panda.org/downloads/wwf_un-
watercourses_brochure.pdf (August 2008) – based on the UN Convention on the Law of the Non- navigational Uses of International Watercourses (1997).
as such curtail the Convention’s standing.133 The same countries would be the first not only to realize potential gains but also to pay for potential losses emanating from their river management. The national interest is not necessarily a counterpart to the interest to preserve a river system.134