The UN Watercourses Convention: A milestone in the history of international water law

February 2nd, 2015

Ariel Litke (Institut d’Etudes Politiques de Paris, France) & Dr. Alistair Rieu-Clarke (University of Dundee, United Kingdom)

This article is the first part in a series of 2 articles by the same author. Part 2 is available here.

International water law (IWL) has developed mainly over the second half of the twentieth century, and has enjoyed increasing legitimacy in recent times.1 A range of legal instruments have progressively strengthened key principles of international water law and defined the rights and duties of states with respect to their uses of shared watercourses such as: the International Law Association’s 1966 Helsinki Rules2; the United Nations Economic Commission for Europe 1992 Helsinki Convention3; the International Law Commission’s (ILC) 2008 Draft Articles on Transboundary Aquifers4; as well as numerous regional and basin-specific agreements5 and decisions by international courts.

Within the context of the development of IWL, the UN Watercourses Convention (UNWC) holds an important position. The Convention, which entered into force on 17th August 2014, seventeen years after its adoption by the UN General Assembly in 1997, was negotiated on the basis of Draft Articles developed by the ILC. The Convention’s final text is the result of ardent discussions between states and the recommendations of no less than five special rapporteurs. The UNWC was proposed as a response to the acknowledgment that a global legal instrument was needed to bolster cooperation between states over their shared water resources and mitigate the potential for conflict. It is also important to note that the UNWC was meant as a global treaty whose role was to support other watercourse treaties by acting as a template and filling the gaps where coverage was lacking.6

Along with the UNECE Helsinki Convention (which will soon be open to accession by non-UNECE members7), the 1997 UNWC is the only global treaty governing transboundary watercourses.6 As a framework convention, it is principle-driven rather than result-driven; it provides rules that can be tailored to the distinct circumstances of each international watercourse and gives liberty to watercourse states to take the actions that suit their needs and interests as required by the singularity of the situation.6 Both the Southern African Development Community (SADC) 2000 Revised Protocol on Shared Watercourses, and the 2009 Agreement on the Nile River Basin Cooperative Framework provide examples of instruments that have tailored the provisions of the 1997 UNWC to a regional and basin-specific context.

The UNWC, which is now widely recognised as the most authoritative source of international water law, is a pivotal document of IWL in a number of ways: it creates a strong framework for water governance arrangements8 and a basic common ground that enhances predictability and encourages reciprocity9; it codifies and clarifies existing norms and develops emerging principles of customary IWL; it constitutes a model that can guide the interpretation of other treaties and the negotiation and drafting of future ones10; and, it has informed the judgments of international and regional courts.6

The key aim of the Convention is to “ensure the utilisation, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof”.11 The provisions of the Convention develop and consolidate fundamental principles of IWL:

Equitable and reasonable use and participation , stipulates that states reconcile any competing claims to an international watercourse on the basis of equity whilst protecting the sustainability of the system. Pursuant to the 1997 UNWC such claims should be reconciled based on all relevant factors and circumstances, and no use enjoys inherent priority (Articles 5 and 6).

, stipulates that states reconcile any competing claims to an international watercourse on the basis of equity whilst protecting the sustainability of the system. Pursuant to the 1997 UNWC such claims should be reconciled based on all relevant factors and circumstances, and no use enjoys inherent priority (Articles 5 and 6). Obligation not to cause significant harm , which places states under a due diligence obligation to take all appropriate measures not to prevent significant harm to other watercourse states, unless it can be ascertained that such harm is both equitable and reasonable (Article 7).

, which places states under a due diligence obligation to take all appropriate measures not to prevent significant harm to other watercourse states, unless it can be ascertained that such harm is both equitable and reasonable (Article 7). Protection of ecosystems , whereby states are under an obligation, either individually or where appropriate jointly, to protect and preserve the ecosystems of an international watercourse (Article 20).

, whereby states are under an obligation, either individually or where appropriate jointly, to protect and preserve the ecosystems of an international watercourse (Article 20). General obligation to cooperate , which requires that states cooperate on the basis of sovereignty, equality, territorial integrity, mutual benefit and good faith (Article 8). Such cooperation may lead to the adoption of watercourse agreements and joint institutions.

, which requires that states cooperate on the basis of sovereignty, equality, territorial integrity, mutual benefit and good faith (Article 8). Such cooperation may lead to the adoption of watercourse agreements and joint institutions. Notification and consultation , whereby states must notify, exchange information and, if necessary, consult and negotiate with other watercourse states, on the possible effects of planned measures that may have a significant adverse effect upon other watercourse states (Part III).

, whereby states must notify, exchange information and, if necessary, consult and negotiate with other watercourse states, on the possible effects of planned measures that may have a significant adverse effect upon other watercourse states (Part III). Regular exchange of data and information , which obliges states to exchange data and information on the condition of the watercourse (Article 9).

, which obliges states to exchange data and information on the condition of the watercourse (Article 9). Peaceful settlement of disputes, which requires states to settle their disputes in a peaceful manner via a range of mechanisms including negotiation, mediation, conciliation, third-party fact-finding, arbitration and adjudication (Article 33).

Despite the importance of the UNWC in codifying and identifying norms of transboundary water law, and the milestone its adoption represented in the development of IWL, it did not come into force until 2014, 17 years later. One of the reasons the Convention eventually reached the required number of ratifications was the forceful, and eventually successful, campaigning by governmental and non-governmental actors to overcome the barriers and setbacks faced by the UNWC’s ratification process.

These efforts were spearheaded by the UNWC Global Initiative, an enterprise started by the World Wildlife Fund (WWF) and which played an important role in raising awareness, addressing fears, and securing the support of governments for the Convention. Among those efforts, a UNWC User’s Guide was developed. The User’s Guide, which was later supplemented by a website and additional online resources, is a vital tool to make the Convention more accessible and comprehensible to the greatest number of interested actors possible. The second part of this series looks at the role of the User’s Guide in helping to secure ratification of the Convention.

References:

McCaffrey 2013. ‘The progressive development of international water law’, in F. Rocha Loures and A. Rieu-Clarke (eds.), The UN Watercourses in Force: Strengthening international law for transboundary water management, Routledge, New York. International Law Association (ILA), 1967. ‘Helsinki rules on the uses of the waters of international rivers’, Report of the 52nd Conference 484. United Nations Economic Commission for Europe (UNECE), 1992. ‘UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes’ (adopted 17 March 1992, entered into force 6 October 1996), 1936 UNTS 269; 31 ILM 1312. International Law Commission (ILC), 2008. ‘Draft articles on the law of transboundary aquifers’, Report on the work of its 60th Session, 63 U.N. GAOR Supplement No. 10, U.N. Doc. A/63/10. Wolf, A.T., 2002. ‘Atlas of international freshwater agreements’. Available at: http://www.transboundarywaters.orst.edu/publications/atlas/ McCaffrey, S., 1998. ‘The UN Convention on the Law of Non-Navigational Uses of International Watercourses: prospects and pitfalls’, in S.M.A. Salman and L.B. de Chazournes (eds), International Watercourses: Enhancing cooperation and managing conflict, World Bank, Washington, pp. 17-27. UNECE 2013. ‘UNECE water convention goes global’. Available at: http://www.unece.org/index.php?id=32154 Rieu-Clarke, A. and Hayward, K., 2007. ‘Entry into force of the 1997 UN Watercourses Convention: barriers, benefits and prospects’, Water 219(6):12-16. Rieu-Clarke, A. and Lopez, A., 2013. ‘Why have states joined the UN Watercourses Convention?’, in F. Rocha Loures and A. Rieu-Clarke (eds.), The UN Watercourses in Force: Strengthening international law for transboundary water management, Routledge, New York. Rocha Loures, F., Rieu-Clarke, A., Dellapenna, J.W. and Lammers, J., 2013. ‘The authority and function of the UN Watercourses Convention’, in F. Rocha Loures and A. Rieu-Clarke (eds.), The UN Watercourses in Force: Strengthening international law for transboundary water management, Routledge, New York. UNWC 1997 United Nations Watercourses Convention (UNWC), 1997. ‘Preamble’. Available at: http://dl.dropboxusercontent.com/u/391260/UN%20Watercourses%20Convention%20-%20User%27s%20Guide.pdf Rieu-Clarke, Moynihan, R. and Magsig, B.O., 2012. UN Watercourses Convention  User’s Guide, Centre for Water Law, Policy and Science, University of Dundee. Available at: http://dl.dropboxusercontent.com/u/391260/UN%20Watercourses%20Convention%20-%20User%27s%20Guide.pdf

Ariel Litke is an intern at the Centre for Water Law, Policy and Science. He is currently pursuing an LLM in Economic Law at Sciences Po, Paris. In 2014, he graduated Summa Cum Laude from Sciences Po with a MA in Human Rights in hand. He also holds a BA in International Relations from University of Geneva, for which he graduated top of his class and was awarded the prize for best bachelor’s thesis (law). Alistair Rieu-Clarke is a Reader in International Law at the Centre for Water Law, Policy and Science at the University of Dundee. He holds an LLB in Scots law, an LLM in natural resources law and policy (with distinction), and a PhD in sustainable development, water and international law. Rieu-Clarke’s research interests focus on assessing the effectiveness of transboundary watercourse treaty regimes and he has published extensively in the field of international law and water resources management.

The views expressed in this article belong to the individual authors and do not represent the views of the Global Water Forum, the UNESCO Chair in Water Economics and Transboundary Water Governance, UNESCO, the Australian National University, or any of the institutions to which the authors are associated. Please see the Global Water Forum terms and conditions here.