Dr. Patricia Wouters* 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 watercourseâ€Â.[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 sovereigntyâ€Â,[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 “environmentâ€Â, 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] 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 … Conventionâ€Â.[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 itâ€Â.[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 basinâ€Â.[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 Statesâ€Â. 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 watercourseâ€Â.[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 WholeAlgeria, 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, ZimbabweArgentina, 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 ConventionAlbania, 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, ZambiaAndorra, Argentina, Azerbaijan, Bolivia, Bulgaria, Colombia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, Uzbekistan 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 terminusâ€Â.[132] “Watercourse Statesâ€Â[133] and “regional economic integration organisationsâ€Â[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 agreementâ€Â.[137] Part II, “General Principlesâ€Â, sets forth basic substantive rules applicable to international watercourses, having as a cornerstone principle, “equitable and reasonable utilisationâ€Â, contained in Article 5. Article 7, “Obligation not to cause significant harmâ€Â, and Article 10, “Relationship between different kinds of usesâ€Â, 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 watercourseâ€Â.[139] Part III, “Planned Measuresâ€Â, 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 Managementâ€Â, contains six articles dealing with the “protection and preservation of ecosystemsâ€Â[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 Situationsâ€Â, in Articles 27 (“Prevention and mitigation of harmful conditionsâ€Â) and Article 28 (“Emergency situationsââ‚
