TRANSBOUNDARYWATERS PRACTITIONER BRIEFING SERIES

Issue 7

INTERNATIONAL WATER LAW

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One of the first questions raised with respect tointernational law is how will it be enforced? Customs,agreements, or shared values are only sufficientwhen all parties choose to abide by them. So whathappens when there is conflict? An enforcement bodyrecognized by all countries that can guarantee anoutcome that all countries will adhere to does notoften exist. The assumption is therefore often thatinternational law cannot really be enforced. Statesovereignty prevents it, with very little incentive tochange this.  However, the United Nations and its Security Councilare a clear representative of an internationalenforcement mechanism that has broad internationalrecognition and is acting under Chapter VII of the UNCharter. The power of the UNSC to enact sanctions,either economic, diplomatic, or military, allows formechanisms to compel behavior that keeps thepeace and addresses identified threats. The primarymeans of pressure is through trade embargoes andsanctions, which are meant to influence the politicalleaders of a nation to correct a behavior. Althoughthe impact of sanctions and their adverse effects onlocal populations is under discussion, these toolsbecome more effective due to deeper regional andglobal cooperation and integration. Aside from the larger threats of war and terrorism,there are disputes around natural resources whichtypically grab fewer headlines, while their impactsand repercussions may be just as large and couldalso lead to violent conflict. Transboundary conflictsover shared natural resources rely on internationallaw, established customs, treaties, and internationalagreements to find resolution within cooperativeframeworks. The formation and structure of theseinternational water law (IWL) agreements aretherefore critical to their probability for success andtheir enforceability once conflicts emerge. Whether developed on a bilateral or multilateralbasis, the role of international law is key. As will bedemonstrated in this Briefing, the specifics of howagreements are governed and the avenues fordispute resolution can vary greatly depending on thecircumstances. Power dynamics between nations,...

Shared Watercourses: Examining the evolution ofinternational water law andits impact on transboundarycooperation and conflict.

Introduction

both in terms of soft power or physical resourcecontrol, as well as the number of nations sharing awatercourse directly or indirectly are also majorfactors. While many international agreements havebeen developed, they may or may not have includedmechanisms for conflict resolution, or they mayprove insufficient over time. This is especially thecase if certain countries are excluded from anagreement, even though they are part of a basin. It istherefore critical to understand the historical contextof international water law and agreements, and howbest to formulate agreements on transboundaryresources that are robust, fair, and flexible.

International Water Law

The control of water resources helped to spur theearliest human civilizations, to provide a reliablesource of water for herds, for agriculture, and tomanage waste. Throughout history, with societiesdeveloping from groups of hunter-gatherers topermanent settlements and agrarian societies, ourrelationship to water changed. Its importancebecame more dramatic, as polluted water sourcesand pathogens could destroy settlements.

One of the earliest known permanent settlementstoday is that of Jericho in Palestine, dating from 8-7000 BCE, located on ancient water spring. There areremnants of ancient wells from Mesopotamia,Ancient Egypt, as well as channels and other water.......................

management systems that allowed societies to beestablished and flourish. In terms of the legalorganization of this vital resource, the earliest knownsurviving example is the Code of Hammurabi,governing Mesopotamia, the area between the Tigrisand Euphrates rivers, or present day Iraq, Syria, andTurkey (Cech, 2010).

The unique impact of the Code of Hammurabi was notthe creation of law itself, but to rationalize andorganize laws into a code, which was etched in stoneto preserve them. The code covered over 300 sectionsof law including personal behavior, marriage, theft, aswell as water allocation. The arid nature of the regiondemanded the efficient use of water resources thatoriginated miles away in the Armenian mountains.

Without careful management and cooperation, waterwould be scarce and conflict could ensue. Through awell-managed system of dikes, storage reservoirs, andirrigation canals, water was made available throughthe dry summer months. The code set out principlesof payment and just compensation for lost crops dueto any negligence of managing the water systems,establishing a precedent through the centuries (Cech,2010).

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In addition to factors such as wealth, power, andsize of a country, international water law isfurther complicated by natural geography andwhether a nation is upstream or downstream ofthe natural watercourse flow.A tapestry of water laws governs the world’swatercourses today, with local, national, regional,and international doctrines and treaties, whichinfluence, overlap, or may even contradict.Rationalizing disparate legal standards anduniversalizing doctrines internationally is criticalfor transboundary water cooperation and conflictresolution.High profile IWL disagreements today may beclearly addressed with current international tools.

International law provides principles and rulesestablished by treaties or customs recognized bynations as binding to one another. These rules andprinciples are only as strong as the shared beliefsof nations within them to uphold and utilize them.Globalization has helped facilitate this.International Water Law (IWL) is applied to surfaceas well as groundwater.Water law has developed from the earliestcivilizations into the modern era with key principlesor doctrines that govern the utilization and sharingof water resources; particularly riparian doctrineand prior appropriation, with principles of fair orreasonable-use, no significant harm, or absolutesovereignty.

Practical Summary

History of Water Law

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From Mesopotamia to the 'New World’

The Code of Hammurabi

Another famous example of rationalizing disparatelaws is the Justinian Code during the Byzantine orEastern Roman empire. Ordered by Emperor Justinianin 528 AD, it set out to compile all existing Roman lawsof the past 13 centuries into a single volume. Astandard was created using laws passed by legislativebodies, edicts from the emperor, and theinterpretation of these laws by judges in specific cases.The Justinian Code, also known as Corpus Juris Civilisor Body of Civil Law, forms the basic premise ofmodern civil law today.  

The Justinian Code brought the development of themost important water doctrine in use today in moderncivil law, and international agreements such as the UNWatercourses Convention: the riparian doctrine. Thisprovided for the basis of water allocation throughoutthe Roman Empire, establishing that water in a streambelongs to the public for fishing and navigation, andcannot be owned privately. Those on the shore orbank of a stream, the riparian landowners, owned theproperty up to the water’s edge, and possibly to themiddle of the stream, and therefore could makereasonable use of the waters for milling, agriculture ordomestic use, provided that navigation was notimpacted and no injury was caused to other parties.  

Establishing norms of reasonable use, includingunchanged quantity or quality, is a critical componentin the development of water allocation laws thatfollowed, all the way into the modern era. TheJustinian Code was further expanded upon by laterrulers in Spain with the Forum Judicum, a compilationof Spanish, Roman, and German law, and includingArabic concepts brought to Spain and Portugal in the8th and 9th centuries. These legal standards wereintroduced to the New World—the continents of Northand South America—by colonizing European powers....

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Justinian Code

Justinian I, detail of a 6th-century mosaic at the church of SanVitale, Ravenna, Italy. Source: britannica.com

William H. Powell, Discovery of the Mississippi by De Soto, 1853,via Architect of the Capitol. Source: lumenlearning.com

Spanish Water Law

Las Siete Partidas is a 13th century code that held thatall water, land, and minerals belonged to the RoyalCrown, and individual ownership was only possiblythrough a Royal grant. The exception being naturalrainfall or water flows not caused by humans may beused without official permission from the sovereign.The top down approach to the allocation of waterrights still has impacts today in Spain’s former coloniessuch as Mexico and the United States. The granting ofroyal permissions to use water for irrigation incolonies so far away ultimately meant the need fordelegating this authority to irrigation systemmanagers, which would later evolve into towncouncils. Through this system, irrigation was managed,while domestic use was unlimited. 

Spanish water law developed a system based on theunique needs of colonies in the arid south west ofNorth America, based on the importance of managedirrigation, and priority of use. The general principles ofriparian doctrine were not sufficient in much more dryclimates as in Spanish colonial America. Gradually, theprinciples of the “Ayuntamiento-rules” in the colonies— that of a town council or municipality — becamemore influenced by practices from the indigenouspeoples that had irrigated the region for centuriesbefore, adapting to their arid environment.

Another aspect of Spanish water law still impactingthese regions today are Pueblo Water Rights—thegranting of water rights from the king of Spain directly tocitizens for water that flowed through a town orsettlement. Later treaties between the US and Spaingranted these water rights to communities such as inthe city of Los Angeles with the Los Angeles River, or inSan Diego, California and in Las Vegas, Nevada, whichare still held today. The side-by-side existence ofdifferent —State water rights, pueblo water rights as well

With the jurisprudence precedents from the JustinianCode of Roman Law, English common law settledwater disputes through the common application ofrulings on similar cases. This case law was applied inthe colonies of the British Empire including theeastern United States. It often favored industry, ofwhich water powered mills at that time were animportant part. Their productive outputs werevaluable to any settlement. This created the conditionsfor future disputes around the local water rightsgranted to mills, as they infringed on the navigationaluse of watercourses. Riparian doctrine set out that beyond reasonable use,a mill owner should obtain a water right to allow formore excessive use and transformation of a watersource. In practice however, these rights were oftengranted without much consideration for the damagesdone to riparian landowners either upstream (risk offlooding) or downstream (risk of reduced flow). Theearly Mill Acts of the US set out to establish rights formills to encourage their development, as well as aprocedure to handle claims of damages. While a millowner would obtain a lease on the lands on both sidesof the stream, a jury could assess damages to injuredparties from the mill’s creation and operation................

The cases brought about by this process would havelasting impacts, as the mill owners were typically farmore powerful figures in the community, and theirinterests were protected by the greater good of theirmills. A few individual farmers whose farmlands wereflooded or damaged, were regarded as less importantto the public good. The impact of these decisions ledmany farmers to drain wetlands to develop morefarmlands elsewhere, but this too could affect theoperation of mills as the water table shifts. As may beclear, there was constant tension between industryand agriculture over water rights.

Concepts such as eminent domain also applied to millowners, as they could condemn upstream lands to beflooded for the sake of their mill project, provided thatfair compensation was paid. Over time, theproliferation of mill dams and the privileges placed ontheir water rights created blowback as the navigationof watercourses was impacted and fish stocks beganto decline rapidly. By the late 1700s, legislation wasbeing passed to declare the common travel principlesof waterways, and impose fines on mills thatobstructed this. Later, free passage for navigationbecame federal law. But the political power strugglesof the early United States created a system wherebyeach State developed their own water laws to suittheir populations and their climate.

Source: epicworldhistory.blogspot.com

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as international agreements with Mexico — creates amore complex legal environment.

Spanish water law has provided unique contributionsto the management of water systems today, and isprimarily based on the circumstances of arid regionsin their former colonies. As can be seen in the US,water law doctrines vary from the Northeast to theSouthwest, from English or French common law toSpanish law, alongside local water availability rangingfrom abundance to scarcity.

English & French Common Law

Development of Riparian Doctrine

Another influential aspect of water law was the CodeNapoléon, which made its mark on the tapestry ofearly colonial water laws in the French regions ofLouisiana. Like English common law, the CodeNapoléon was based on Justinian Code as well as thecompiling of Visigoth and English common law, but itfurther defined riparian water rights, the ownership ofstream beds, as well as their navigational uses. On theEast coast of the United States, the legal disputes wereoften between mill owners, fish migration proponents,navigational interests, and injured parties and riparian

Source: wikimedia.org

ruling. Specifically, that the owner of a propertybordering a stream does not have an ownership rightto the water in the stream, but may make reasonableuse of the water from the stream by virtue of theirproperties’ location. According to this principle, otherriparian landowners should not be harmed by thisusage, and they may not harm others either. As development continued, the allocation of waterbecame more complex, with an increase in differentuses, and more and more users. Priorities wereestablished and agreements made between variousmills to ensure efficient allocation of water resourcesso that mills could operate with the greatest efficiencyand capacity. However, gradually the demand for millpower outstripped their development.  Diversion rates were established based on thepotential horsepower of a river, determined by itsgradient or elevation changes. These elevationchanges were more common to the geography of theNortheast, while further West, this was less common.This created a difference in regulations in the differentareas. Combined with the variety of colonialinfluences in the early Americas, a patchwork of legalframeworks existed across the United States, Mexico,and Canada, from areas abundant with waterresources and hydropower potential, to arid regionswith unreliable rainfall. Yet, reasonable-use doctrinepermeates most US water law, from watercourses togroundwater or surface water. Today, the riparian doctrine forms the basis of waterlaw in 31 states in the Eastern US where it hasdeveloped in a primarily water-secure and humidenvironment with relatively little irrigation and wherewater allocation has not been the primary concern orsource of conflict. Two basic principles govern modernriparian doctrine — reasonable use, and correlative.....

water law doctrine under English common lawgoverned those decisions. French common law wasapplied more in the South, with their own tradeinterest on the Gulf coast and river lands.

In areas such as the Pacific North West theconstruction of dams has caused considerabledamage to its famous salmon run, which sustains notonly salmon populations, but a variety of otherwildlife in the region, from bears to wolves to birds, ina balanced ecosystem. Many of the dams beingremoved are over one hundred years old, installed forvarious purposes from running mills to trapping fishfor hatcheries, which no longer serve a purpose or areconsidered as structural hazards.

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Riparian water rights extended to the center ofnon-navigable streams.Navigable streams (rivers) were owned by thegeneral public and could not be obstructed.The rights to develop milldams belonged to theriparian landowner on either side, and this rightcould be transferred when a property was sold.Excess water could not be diverted from astream, and must be returned unimpaired inquantity and quality.Injured riparian landowners could becompensated for injuries.  

These riparian doctrine principles included 5 basicconcepts:

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Reasonable Use Doctrine (American WaterLaw & Westward Expansion)

With these basic concepts in place, the colonies waterlaw structure developed and power dynamicsbetween industrial classes took shape. Conflictsbetween fishing rights, navigation rights, and millowners would continue, with sporadic outbreaks ofviolence that could occur. The inherent conflictbetween dams, navigation, and fish migration iscenturies old, and continues to be a common point ofcontention in water conflicts today.

A landmark ruling to govern such conflicts is Tyler v.Wilkinson of 1827 from the US Supreme Court, whichdefined reasonable use as the use of water withoutinjury to other water users. What constitutes injurywas not defined however, so that it may beestablished in future case law and allow for morevaried interpretation on a case-by-case basis. Theentire eastern US would end up adopting theprinciples arising from the Tyler v Wilkinson..................

Source: nature.org

rights. As already mentioned, reasonable-use meansno harm or interference occurs from its usage ordiversion, and that injury must be proven, and thenmay be compensated. The correlative rights principlerequires riparian parties to share the total flow of ariver or stream, with each proportion based on theamount of waterfront property. There is no priority ofuse in this system, but instead it sets reasonableminimums that remain proportional in times ofdrought or abundance.

Over time, this riparian system of the East coast cameunder further strain due to population growth andclimate change, including droughts. This caused anincrease in disputes. In its place, some authoritieshave preferred a permit system as it enables them tochange or revoke access as needed based on use,need, percolation rates, and climate factors.

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Map of the USA showing different systems of water rightsSource: extension.okstate.edu / Cartography Aaron Mittelstet

Meanwhile, towards the arid West, the priorappropriation doctrine persists, either under strictregimes such as in the Colorado system, or as part ofa hybrid system, as with the ‘California Doctrine’. Thishas primarily been driven by climate considerations,with more scarce water resources in many regions.

"Seasonal, geographic, and quantitative differences inprecipitation caused California’s system to develop into aunique blend of two very different kinds of rights:riparian and appropriative. Other types of rights exist inCalifornia as well, among them reserved rights (water setaside by the federal government when it reserves land forthe public domain) and pueblo rights (a municipal rightbased on Spanish and Mexican law). 

Riparian rights usually come with owning a parcel ofland that is adjacent to a source of water. Withstatehood, California adopted the English common lawfamiliar to the eastern seaboard; such law also includedthe riparian doctrine"  (The Water Rights Process, n.d)....

Although the Northwest and Southwest are actuallyquite different in terms of climate, they share similardoctrines as part of the history of westward stateexpansion. Colorado is known to have the strictestform, with its direct territorial access to the Coloradoriver, which other states like California, rely ondownstream.  

Prior-appropriation provides a specific waterallocation based on an amount historically divertedwith beneficial use. Those who come later may onlymake use of the water resources if they do not harmthe prior-appropriated rights of those who have comebefore. It can also be seen as a ‘use it or lose it’principle: a failure to use the full water right allotmentwould bring about the loss of that right if the wateruser doesn’t show sufficient efforts to use thisallocated amount of water. This could also promotewaste in order to maintain water rights. Alternatively,a fixed amount of water already being used to itsmaximum capacity would limit expansion or growthpotential, as another more junior water right must beobtained in order to obtain additional resources.

"Riparian rights still have a higher priority thanappropriative rights. The priorities of riparian rightholders generally carry equal weight; during a drought allshare the shortage among themselves"  (The WaterRights Process, n.d).

In practice, many of the canals and irrigation systemsthat were built in the arid West have been owned byconsortiums and investors in private irrigationcompanies, with stockholders who pay for annualwater assessments and system expenses (Cech, 2010).They are then able to withdraw their set percentage ofwater on any given day. Shortages are sharedproportionally by all, and no priority of usage existswith set distributions of water rights that changebased upon available seasonal resources. 

Absolute territorial sovereignty — a private-propertyright — aligns with the prior-appropriation doctrinethat an individual or a state can fully use any and all ofthe water in its territorial confines, even if to thedetriment of those downstream. Landownershipaligns with riparian doctrine and fair-use principles,that all riparian states or individuals whetherdownstream or upstream, have rights to use the waterin an equitable and reasonable way. In internationallaw, the general riparian doctrine has been moresupported as a means to prevent and manage conflictbetween nations over transboundary water resources.

Modern legal aspects of international waters areinextricably linked to the development ofinternational law in general, and the specific doctrinesof water law developed through the centuries invarious regional contexts. Throughout thisevolutionary process for both water law andinternational law, key principles and doctrines haveemerged as the preferred, most efficient tools andguiding principles to manage transboundaryresources conflicts. This is clearly explained in areport by UNESCO’s Intergovernmental HydrologicalProgramme & World Water Assessment Programme:

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Source: transboundarywaters.science.oregonstate.edu

Modern Legal Aspects of InternationalWaters

The development of international water law isinseparable from the development of international law ingeneral. Such fundamental principles and basic conceptsas the sovereign equality of states, non-interference inmatters of exclusive national jurisdiction, responsibilityfor the breach of state’s international obligations, andpeaceful settlement of international disputes equallyapply in the area governed by international water law.

At the same time, this relatively independent branch of ....

international law has developed its own principles andnorms specifically tailored to regulate states’ conduct in arather distinct field: the utilization of transboundarywater resources. The basic rules are: the right to usewaters of the transboundary watercourse located in theterritory of the state (“equitable and reasonableutilization”), and a correlative duty to ensure similarrights are enjoyed by co-basin states (Vinogradov,Wouters, & Jones, 2003).

The principles of water law that have been developedfrom ancient civilization through the colonial areainform the modern legal frameworks of today that areused to govern international water agreements. Simply,the evolution of water law has informed internationalwater law as well as the development of internationallaw norms. Riparian and Reasonable Use doctrinesform the backbone of these contemporary internationallaw principles, which are primarily equitable andreasonable utilization (ERU), and no significant harm(NSH). With these primary guiding principles, there aretwo main views in the interpretation and application ofinternational water law.

"The first view considers ERU to be the guiding principleof IWL and subordinates NSH to it, while the second viewposits that the two principles are equal, and neitherprevails over the other. Both views may be fit for purposein the daily management of interstate fresh waterresources and the prevention of disputes. In the contextof resolving ever-increasing transboundary fresh waterdisputes (TFDs), however, the practical application of thetwo principles remains unclear, casting doubt on theirability to effectively guide states. This is evident, forinstance, in the ongoing dispute between Ethiopia andEgypt concerning the Grand Ethiopian Renaissance Dam.While Ethiopia claims an equitable and reasonable rightto build the dam, Egypt maintains its historic right to befree from significant harm that it claims the dam willcause it. The unclear relationship between the twoprinciples thus enables states to cling to contradictoryinterpretations that suit their unilateral interests, therebyaggravating the dispute rather than resolving it" (Meshel,2020).....

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of water resources as defined under prior colonialagreements may not hold relevance to thesecountries. This brings into question the use of legalclaims based on law from colonial era, or from onestate to another. 

The Riparian Doctrine is the primary principle of theUN Watercourses Convention, with the specificprinciples of equitable and reasonable use (ERU,Article 5), and no significant harm (NSH, Article 7). Theoutlook on these two articles can be one of naturalcoexistence, or one of entrenched conflict. In suchcase, which article should supersede the other? As willbe explored later, parties may refer to either article incompeting narratives that are then not easilymitigated.  

International water law must also consider otherbodies of law in a holistic approach, applying the fullbody of international law to protect water resources.Economic law, environmental law, and human rightslaw also inform the development and practice ofinternational water law. Including these differentdisciplines is important but can also create difficulty intrying to develop broad and comprehensiveinternational agreements with a large number ofparties. In practice, there is no one size-fits-allinstitutional or legal framework to govern alltransboundary water conflicts.

Furthermore, a wide range of interests must be takeninto consideration. The interests of riparian states andother parties, such as private and public investorsinvolved in water infrastructure development, orprojects that impact water resources. The interests ofindividuals, or the community rights of people to havesafe and secure access to water resources as ahuman right. From the local basin level to theinternational level, competing interests of an over-exploited resource must be accounted for equitably,and with mechanisms for conflict resolution throughthese levels. Careful management of potential issuesis key to preventing international disagreements overwater resources. Tough choices must be made on theguiding principles and doctrines that are mosteffective for the widest application by internationalorganizations.

Whether an agreement is watercourse-specific, aboundary agreement, an umbrella agreement or adispute resolution instrument, the following issuesshould be noted: the rights and duties of theagreement (material terms), the term or duration of ....

Fundamental legal agreements or instruments ofinternational water law are: the Convention on theProtection and Use of Transboundary Watercoursesand International Lakes (UNECE Water Convention),the International Law Commission’s Draft Articles onthe Law of Transboundary Aquifers (ILC Draft Articles),and the Convention on the Law of the Non-Navigational Uses of International Watercourses (UNWatercourse Convention or UNWC). Theseconventions are comprehensive agreements builtupon the same doctrines and principles governing thelegal management of natural resources. 

However, as competing doctrines cannot be housedwithin the same agreement, choices must be made onwhat should be the guiding principles withininternational watercourse agreements in order tobest navigate conflicts. Principles such as absoluteterritorial sovereignty are not conducive to conflictresolution of international resource disputes.Additionally, a fixation on historic use rights or priorappropriation may provide water resourceprotections for some nations, but they may also harmanother’s water rights or limit potential developmentopportunities. The push for more ecosystem or basin-wide approaches to transboundary environmentalchallenges requires a more holistic outlook towardsshared natural resources.

Furthermore, as water law and international law haveevolved over time, and new, independent states haveemerged from the colonial past, the equitable use .........

the agreement, the implementation requirements(performance) and its flexibility or adaptability (if any).Ideally, the rise of conflict will lead to disputeresolution, which will further inform the watercourseagreement and dispute resolution mechanisms forfuture conflicts.

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Transforming Conflict into Coperation: Legal Mechanisms and Processes. Vinogradov et al (2003)

Next, we will introduce some transboundary wateragreements that utilize these water law doctrines;namely, riparian doctrine, with principles of equitableand reasonable use, and no significant harm.Opposing these principles are absolute territorialsovereignty, historic use rights, or prior-appropriation.

With nearly 300 transboundary aquifers in the worldshared by two or more states, and 263 transboundaryriver basins, there are many transboundary water lawagreements in effect today. With 37 acute waterconflict incidences since 1948 compared to 295international water agreements, the overall trendtowards cooperation has been significant(Transboundary waters, n.d). Yet still, almost 2/3rds ofthese transboundary waters do not have acooperative management framework, as pointed outin the UN Watercourses Convention User’s Guide:  "Despite these legal developments over the past fourdecades the international legal architecture regulatinginternational watercourses remains fragmented. Themajority of basin-specific agreements are found inmultilateral river basins, however most of theseagreements are in fact bilateral agreements. Additionally,158 of the world’s 263 international basins lack any typeof cooperative framework; and of the 106 basins coveredby agreements approximately two-thirds do not includeall basin states" (Rieu-Clarke, Moynihan & Magsig,2012).

Some of these agreements are more consequential orimpactful than others, both in terms of theprecedents they set, and their enforcement or abilityto guide parties in cases of conflict. For example, theNile Basin Initiative was formed to help manage thetransboundary water issues along the Nile river. Itdeveloped the Cooperative Framework Agreement(CFA) agreed by 9 Nile riparian nations, but Egypt andSudan have not accepted it, leaving the agreementineffective and of little impact during a conflict, suchas that over the Grand Ethiopian Renaissance Dam(GERD). Transboundary Water Law Agreements must beflexible to allow for adaptability and broad-basedsupport. They must also be enforceable, withmechanisms for dispute resolution, obligations toparties, and clear principles, so that they can identifyconflicts, guide parties through them, and enforcetheir decisions. Yet the more specific and enforceablethe agreement, the more hesitant nations may be tosign it and thereby limit their sovereignty. The balancebetween cooperation, enforcement, and sovereigntyis a delicate one, and is one that has not been easilyfound.

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Members of the United Nations Security Council sit during a meeting. Shannon Stapleton/Reuters, Source: CFR.org

Transboundary Water Law Agreements

The UN Watercourses Convention of 1997 is one ofthe most notable international water law agreements,yet the agreement only entered into force in August2014, 17 years after its presentation, and with only 37parties to the Convention to date. The agreement wasintended to codify the already prevailing statepractices of international water law at that time, andcan trace its origins from 1959 and through the“Helsinki Rules”. So why has it been slow to take effectand gain signatories?

The best practices and guiding principles of the UNWCprovide two major principles, of equitable andreasonable utilization, and no significant harm. Thequestion of equity is paramount to moderninternational water law agreements, and must alsoaccount for factors such as economic equity andenvironmental reliance, to determine their reasonableuse between states. In trying to balance both theinterests of upstream and downstream riparianstates, both can find fault in its principles.

For downstream riparian nations, the worry may bethat its historic rights will be harmed and insufficientlycompensated. For upstream riparian nations, theclaims of downstream nations can disrupt nationaldevelopment plans and priorities, unfairly delegatingsovereignty. At the initial vote for the UNWC, keyobjections from nations such as China exemplified......

Some of the types of problems in the legalgovernance of international watercourses are first,those that do not exist, or agree exclusively ondelimiting borders, flood control, or are project-based. Some international agreements do not includeall members of a basin, which then limits their impact.Other shortcomings can result from being fixed withstatic allocations that are unsustainable over time, oragreements that do not account for local tributariesto international watercourses. As such, manyagreements have developed institutionalcomponents, but are lacking in terms of enforcementor definitions of responsibility, due diligence, oremergencies. Further updating and integration intointernational water law agreements should beconsidered.

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Key Transboundary Water Agreements

UN Convention on the Law of the Non-Navigational Uses of InternationalWatercourses (UNWC) (1997)

this. While being supportive of the UNWC’sdevelopment in general, China has still not acceptedthe UNWC due to fears of insufficient protections toits territorial sovereignty, which has many particulargeographic advantages. In spite of these adoptiondifficulties, the very fact that the UNWC wasdeveloped out of a call within the UN GeneralAssembly, leading to draft articles developed andarranged by the International Law Commission (ILC)of the United Nations, whose role it is to help developand codify international law, thereby lends legitimacyto UNWC as a reflection of practices and customaryinternational law.

As will be discussed in detail later, the relationbetween Article 5 and Article 7 in the UNWC allows itgreat flexibility, but can also hamper its wideradoption. In some contexts, while conflicting nationsmay both not official be parties to the UNWC, itsprinciples would be cited in legal arguments.

Link to True Copy of the UNWC

This extensive database of InternationalFreshwater Treaties is hosted by the researchgroup, Northwest Alliance for ComputationalScience at Oregon State University and is anexcellent  resource for further information.http://gis.nacse.org/tfdd/treaties.php

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Ramsar Convention on Wetlands ofInternational Importance (1971)

Ramsar site: Archipel Bolama-Bijagos Ramsar Site in Guinea-Bissau. Source: wikipedia.org

The Ramsar Convention is an inter-governmentalinternational treaty that provides a framework for theconservation of important wetlands around theworld. The Ramsar Convention is both an entity, and adesignation for wetlands of international importance,with over 2,300 Ramsar sites covering 2.1 millionsquare kilometers. Alongside this are 18transboundary Ramsar sites and 15 Ramsar regionalinitiatives from South America to Asia. The Convention’s mission is 'the conservation andwise use of all wetlands through local and nationalactions and international cooperation, as acontribution towards achieving sustainabledevelopment throughout the world' (Ramsar,n.d.).International Organization Partners to Ramsar includethe International Union for the Conservation ofNature (IUCN), the International Water ManagementInstitute (IWMI), Wetlands International, and theWorld Wide Fund for Nature (WWF). Amongst others,these partners work with the Conference ofContracting Parties (COP) to implement, support, anduphold the Ramsar Convention, meeting every threeyears to set priorities, track progress, and formtechnical advisory groups on selected issues.

In addition to being the facilitator of the COPconference and triennial meetings, the Ramsar.............

Convention functions as an international organizationbetween these meetings, with a Standing Committee,Scientific and Technical Review Panel, and aSecretariat, working to implement and coordinateactivities day to day. With 171 nations as contractingparties to the Ramsar Convention, it is arguably amore broadly accepted convention than the UNWC.However, it does not expressly refer to the rights ofwetland communities, making it easier to adopt, butweakening the impact of its implementation.

UNECE Convention on Protection & Useof Transboundary Watercourses &International Lakes (1992)The 1992 UNECE watercourses convention is similarto the later 1997 UNWC in many respects, which canlead to some confusion on how they fit together. Toclarify, one could be called the Helsinki Convention(HC, 1992), and the other the New York Convention(NYC,1997). The NYC sought to further expand andcodify the prior European-based HC, with the minimallevels of acceptance in international law, globalizingthe EU agreement (Tanzi, A. 2014).

The 1992 HC provides some more specifics on certainelements regarding transboundary waters and theirquality, leading to a more specific emphasis on thisaspect. At a basic level, one could view the 1992 HC’slanguage places more focus on water quality issuesand the protection of transboundary water resources...

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while the 1997 NYC is more focused on waterapportionment. However, both aspects are inherentlyconnected, as a loss of water resources makes theremaining resources less resilient to pollution. At theoutset of the 1997 NYC, which began several decadesearlier, the primary concern was apportionment,while pollution would later become a growingproblem over time.

Effectively, the 1992 Helsinki Convention functions asa multilateral environmental agreement (MEA), asopposed to a regulation on the competing uses ofinternational watercourses. An MEA is generallysupported by meetings of the parties and institutionsto help move toward compliance, with less legalrequirements on any non-complying members. As perthe International Law Commission, the harmonizationprinciple of international law should seek torationalize the HC and NYC into a unified single set ofcompatible obligations.

Dispute settlement in the 1992 HC is more advisorycompared to the 1997 NYC, with an understandingthat the reasons for non-compliance may be morerelated to a lack of capacity, as opposed to politicalwill or political disagreements. At the heart of the1992 HC is a non-zero-sum approach to managinginternational water disputes, harmonizing competinginterests, and encouraging cooperation and mutuallybeneficial planning.

The UNECE Convention continues to have an impacton the global stage as beyond just being a EuropeanConvention, but serving as another basis for thecustomary principles of international water law, whichis also open to global signatories since 2013...........

EU Water Framework Directive (2000)The EU Water Framework Directive is seen as beingthe first European Directive focused onenvironmental sustainability, and provides a potentialtemplate for future environmental regulations. Thisframework seeks to harmonize water quality,quantity, and usage of water resources on a broad,regional scale, focusing efforts on natural river-basinmanagement, as opposed to administrative orpolitical boundaries where possible. In particular, theEU WFD sought to replace an individual outcomefocused approach with an ecosystem approach thatcould consider complexity, feedback, and tradeoffs.This has also been a decades long process ofEuropean integration to harmonize legal systems.........

monitoring, standards, and move towards a regionalagreement that can be universally applied. Out of thisFramework, new directives have been made onvarious aspects, including drinking water quality,wastewater treatment (secondary biologicaltreatment), and integrated pollution protections,towards a unified legal regime for EU water standardsand protections. The Directive sets out to codify whatconstitutes “good” water, best practices for today, andbest practices for the future, using a combinedapproach while setting timelines to achieve thesegoals (Nikolaus, V., Arpon, K.D., & Giakoumis, T,2016).......

Senegal River Water Charter (1972)This water charter is comprised of two mainagreements that govern the Senegal River Basin,namely the Senegal River Convention, and theOrganization for the Development of the SenegalRiver (OMVS) Convention. The OMVS is charged as theprimary entity for the river basin, with full legalcapacity and powers to enter contracts, manageproperty and finances, and institute legalproceedings. The member states that make up thehigh council granting this power are Mali, Mauritania,and Senegal, who each touch on the Senegal RiverBasin.  Within this structure, which can be changed andreallocated as per the agreement of its representativehigher council, a Permanent Water Commissionallocates water rights between member states, andstratified by sectors. The Conference governing theOMVS and the overall Basin is chaired by eachmember state on a rotating basis of two years. Alldisputes must be handled via mediation betweenmember states, first directly, and then by theCommission of Mediation, Conciliation, andArbitration of the Organization of African Unity, if noresolution is found. The African Unity Commission’sdecisions can be appealed at the International Courtof Justice (Senegal River Basin, n.d.)....

Framework Agreement on the Sava RiverBasin (2001)

The African Convention was considered to be themost forward-looking regional agreement of its time,when adopted in 1968 in Algiers. It helped to establishinternational environmental law in Africa, calling for.....

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International Boundary Conventionbetween the United States of Americaand Mexico (1889)This boundary agreement addresses themanagement of water resources between the US andMexico, and is implemented by the InternationalBoundary & Water Commission, with both US andMexican sections to the organization. This entity isalso the mechanism for addressing transboundarywater disputes between the US and Mexico—forexample regarding pollution. The US and Mexicansections operate as independent governmentagencies, each making up ½ of the binationalcommission. The organization has two websites, witha US section in English only, and a Mexican section inSpanish only. This split has led to failures of effectivecommunication and disputes between the parties, forexample over infrastructure.

The Sava River Initiative process began after thedissolution of former soviet states in the 1990s, andthe establishment of the Stability Pact for South-Eastern Europe. Formed in 2001 between the nationsof Bosnia and Herzegovina, Republic of Croatia,Republic of Slovenia and Federal Republic ofYugoslavia, the framework agreement set out toaddress the management of transboundary impactsin the Sava River Basin and develop a water regime toensure quality and availability. The (joint)International Sava River Basin Commission (ISRBC)was created as an implementing body of theFramework Agreement on the Sava River Basin(FASRB), with the legal status of an internationalorganization (The Sava Commission, 2008).

The agreement came about remarkably fast forinternational agreements and was completed within ayear. The FASRB is a unique international agreement,which integrates all aspects of water resourcesmanagement.

African Convention on the Conservation ofNature and Natural Resources (1968)

the integration of development and environmentalconcerns to pursue sustainable development in acoordinated fashion. It covers land, soil and water aswell as biological diversity, with a focus on sustainableand coordinated actions, enforced with mechanismssuch as Environmental Impact Assessments (EIA) andmonitoring and evaluation (Steiner, A. 2004).

The original 1968 convention established a basis fornewer nations to conserve their natural resources, butit lacked institutional mechanisms, or means ofencouraging compliance or enforcement. That is whythe African Convention was updated after decades ofchanges international law with the 2003 Revision,under the auspices of the African Union. The updateand revision of the African Convention began in 1981,and took 22 years. It remains as a regional multilateralenvironmental agreement, as the principal vehicle foraddressing issues and taking action with respect toenvironmental issues.

Transboundary Water Law Conflicts

Today there are a number of international water lawdisputes that persist despite the evolution of legaldoctrines and the weight of international law in theglobal community, as discussed herein. Such disputescan remain intractable as individual State interestsoutweigh the collective interest, between States, orregionally. Transboundary water problems are bothmulti-criteria and multi-participant problems. Theinterpretation of doctrines and principles frominternational law with a unilateral interest vantagepoint can create competing narratives that areirreconcilable.

The most prominent example of this today is theGrand Ethiopian Renaissance Dam (GERD), and thedisagreement between Egypt, Ethiopia, and Sudan.The legal nature of this disagreement is two-fold; first,applying modern principles of fair-use, or equitableand reasonable utilization (ERU), and the riparianright to no significant harm (NSH) (Meshel, T, 2020);second, the application of historic agreements fromthe colonial era which don’t take into account recenteconomic developments, population growth andchanging demand for water and from which somebasin countries are excluded.

“The years long dispute over the GERD on the Blue Nilepits Ethiopia’s desire to become a major power exporterand pull millions out of poverty against Egypt’s concernthat the dam will curtail its critical share of the river iffilled too quickly.” (Magdy, 2020, APNews)

Which principle should supersede the other in orderto guide states towards the most optimal outcomes intransboundary water law conflicts? One argument isfor the NSH principle to be the guiding principle intransboundary disputes wherever ERU and NSH are inconflict, due to the balancing factor of its duediligence standard. This shifts the viewpoint from thenegative duty of avoiding “harm” to a positive duty oftaking concrete steps in avoidance of harm (Brunee,n.d.).

The center of the dispute, the Nile river, is largelygoverned by key rules of international law, which arederived from the UN Watercourses Convention(UNWC). However, the UNWC only had enoughratifying nations to come into force since August2014, with the GERD project already underway yearsearlier. Prior to this, the Nile Basin Initiative producedthe Cooperative Framework Agreement (CFA), which...

A radio operator at the Grand Ethiopian Renaissance Dam (GERD), near Guba in Ethiopia, December 2019. Eduardo Soteras / AFP. Source: crisisgroup.org

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Another argument could be made under priorappropriation, which coupled with the claim of Egyptusing the entirety of the Nile’s waters, wouldeffectively mean no upstream riparian state couldutilize the Nile’s water without interfering with Egypt’sprior rights from historical usage. This interpretationof water rights is convenient for downstream stateswho are susceptible to interference from upstreamstates, but can easily run against equitable andreasonable use principles.

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agreed to utilize more of the Nile’s water resources.Egypt and Sudan rejected this, and Egypt is both themost reliant on the Nile, and the farthestdownstream. Furthermore, neither Egypt nor Ethiopiaare parties to the UNWC, but it is generally consideredto be a true accounting of international law customswith respect to transboundary watercourses.

As previously mentioned, the core principles of theUNWC are the ERU (fair-use) and NSH (no harm)principles of Articles 5 and 7 of the Convention.............

Together, these principles should compel states tofind solutions that are agreeable and equitable,sustainably exploiting their shared water resourceswithout creating harm to downstream riparian states.In practice for the GERD, both parties claim oneprinciple against the other.

Egypt’s claim dates back to 1902, citing a treatybetween Ethiopia and colonial Great Britain wherebyEthiopia gives up any rights to the Nile and agrees notto harm water availability to Egypt. Although Egypt inits current form did not exist at the time, it was aBritish Protectorate at the time of the treaty, and isthe 3rd-party benefactor, which carries over to today.In addition to this historic claim, Article 7 of the UNWCon NSH would mean that Egypt can dictatedevelopment upstream, and in effect carries exclusiverights to development and exploitation of the Nile.........

Subsequent treaties between Egypt and Sudan in1929 and 1959 further divided up the Nile’s waterbetween these two states, first under Britishsupervision as Protectorates, and later asindependent states in the Nile Waters Agreement of1959. However, the nine other basin states were notparties to these agreements, including Ethiopia,where the source of the Blue Nile resides.

Further to this divide, the upstream riparian nationsagreed to the Cooperative Framework Agreement(CFA), created within the Nile Basin Initiative (NBI)formed in 1999. The NBI was tasked with developingan updated and permanent legal and institutionalframework that could manage the Nile’s waterresources, and mitigate potential conflicts betweenstates.

A Friendly Power in Egypt, 1906, From Cassell's Illustrated History of England, Vol III. The Print Collector/Getty ImagesSource: Irishtimes.com

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In summation, the legal materials at play are the UNWatercourses Convention, the 1902 treaty betweenGreat Britain and Ethiopia (unratified), the 1929 &1959 treaties between Egypt and Sudan, in additionto the appropriation doctrine, the Harmon doctrine,the Vienna Convention on Succession of States, theNyerere doctrine (clean-slate), customaryinternational law, and international water lawjurisprudence from relevant court cases. This is a lotto consider;

“(…) even if the Convention were the sole bindinginternational legal document available to resolve theconflict between Egypt and Ethiopia, the Convention’stwo core articles — Article 5 and 7 — leave sufficientambiguity to permit both states to view the Conventionas supportive of their respective legal positions. Simplystated, there is no binding principle of international lawthat compels a particular result for the parties.” (Adebe,2014)

The resolution of Egypt and Ethiopia’s competingclaims to the Nile river cannot be solved by conflict,be it directly or through proxies. The two nationsmust come to an agreeable framework thataddresses the needs of each, balancing the benefitsbetween electricity generation in Ethiopia, and watersecurity in Egypt. Greater coordination andcommunication on water flow and management ofthe Nile are required, alongside an economic outlookof the benefits and how they can be shared under anagreed legal regime.

"The CFA was ready for signature beginning May 10,2010; Burundi, Ethiopia, Kenya, Rwanda, Tanzania, andUganda have signed it; and the Ethiopian parliament hasratified it. However, arguing that their “acquired rights”to the waters of the Nile River would not be protected,Egypt and Sudan immediately registered their intentionnot to sign the agreement because they objected to thewording of Article 14(b): “Nile Basin States thereforeagree, in a spirit of cooperation: . . . (b) not tosignificantly affect the water security of any other NileBasin State.” They then proposed an alternative wordingfor Article 14(b): “Nile Basin States therefore agree, in aspirit of cooperation: . . . (b) not to significantly affect thewater security and current uses and rights of any otherNile Basin State,” (emphasis added). This wording wasrejected by the upstream riparian states, who argue that“the current uses and rights” phrasing would entrenchthe concept of prior rights, including those created by theNile Waters Agreements and effectively retain theinequity and unfairness that has characterized theallocation and utilization of water in the Nile River Basinsince the 1920s " (Kimenyi, Mbaku, 2015)

Consequently, Ethiopia rejects the use of a 1902treaty with a former colonial power, and cites UNWCArticle 5 towards its rights for reasonable utilization.There are several issues with citing the 1902 Treatybetween Ethiopia and the United Kingdom, includingdifferences in the language of the treaty betweenEnglish and Amharic versions, or that the intent wasto disclaim all use of the Nile’s waters. In addition,Ethiopia has traditionally adhered to AbsoluteTerritorial Sovereignty — namely, that it can exploitthe Nile’s water resources in its own territoryunimpeded, as its own sovereign jurisdiction. Thiswould include all of the Blue Nile and the AtbaraRiver.

The competing views regarding Article 7 against harm,and Article 5 for reasonable use also impact thesehistorical arguments from both nations. Priorappropriation as claimed by Egypt is undermined byArticle 5 on reasonable use, as it precludes Ethiopiafrom precisely that, reasonable use of the waters inits territory. Therefore, a riparian approach is calledfor by the UNWC requiring equal rights of usage,without harm. This leaves Article 7 (NSH), and theproactive conduct to prevent harm to downstreamriparian states.

The Indus Water Treaty is a water-distribution treatybrokered between India and Pakistan by the WorldBank in 1960. In spite of tensions and militaryconflicts since this time, there have been no specificwater conflicts between India and Pakistan. Thiswould make it one of the most successful wateragreements to date. However, it may not be able tocontinue to hold up with time.  The Indus river is one of the most impactedtransboundary river basins in the world due toclimate change. While 60% of the world’s water sits ontransboundary waters, only 40% of these have basinagreements, which allow for better planning andmanagement of natural resources. Many of theseagreements were made before climate change wasever a household idea. This is true in the case of theIndus Water Treaty as well.

India and Pakistan share the majority of waterresources of the Indus river basin as governed by theIndus Water Treaty (IWT). As discussed in the paper byQamar, Azmat & Claps (2019) "with the World Bankbeing the guarantor, the treaty after being signed,survived three wars, expeditious decolonization, anddisproportional geographical development.”

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Climate change has posed a new challenge to thisRiver Basin, which the legal order governing the basincould not have considered at the time. Furthermore,greater development of hydropower resources iscalling into question some of the IWT’s provisions.

The water flow of the Indus River has fallen 5% in thelast 50 years, and is expected to continue to fallanother 30-40% in the future. Coupled with rampantpopulation growth in both nations, hostile relations,and the build-up of nuclear arsenals in both countriessince its adoption, the potential for local waterconflicts to spiral into national emergencies andgeopolitical crises is rising. Increasing demand anddwindling supplies spells potential disaster with theIWT as a focal point for this conflict. India hasthreatened to take unilateral action to dissolve thetreaty, while Pakistan declared that any suchunilateral move amounts to an act of war (Qamar,Azmat & Claps, 2019)

The IWT divided the water resources of the Easternand Western Rivers between India and Pakistan, withEastern rivers towards the south going to India, andWestern rivers further north going to Pakistan...............

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Indus Water Treaty - India & Pakistan

Map of the Indus River Basin. Source: Wikipedia

This required further investments for water canalsand infrastructure in order to implement Pakistan’snew claim to Western rivers, while giving up rights toEastern rivers. For the last several decades, this hasbeen sufficient to allow for fair usage and exploitationof the Indus water resources without much concern.

In recent years however, with increasing conflicts overthe Kashmir region where the Indus flows through,and the increasing non-consumptive development forhydropower and storage along the tributary rivers,the agreement is showing cracks.

A clear example of this concerns the “excess” riverflow from the Eastern Rivers for India, that flowed intoPakistan. While India was granted 100% of that waterflow, in practice, 10% or more of the flow has alwaysgone to Pakistan, which has relied on this water forirrigation in periods of drought and in a heavilyagricultural economy. As such, the declaration byIndia that now all of this water will be captured,redirected, and only used for Indian citizens,represents a sudden and serious reduction inavailable water resources for Pakistan. This water hasbeen important for Pakistan, but it is not included inthe 1960 IWT agreement (Johnson, 2019).

The structural shortfalls of the 1960 Indus WaterTreaty needs a modern refresh that can deal withcurrent disputes and demographic challenges, andthat thoughtfully considers climate changeadaptation. More data sharing is necessary with anemphasis on the equitable reasonable use and nosignificant harm principles. In addition, specificdispute resolution mechanisms and institutionalmeans of constant contact and communication arevaluable components for a successful transboundarywater agreement. This is prevented by a lack ofpolitical will in light of other conflicts that have takenprecedence.

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As we have seen thus far taking an overview of thedevelopment of international water law, one of themost consequential and controversial multilaterallegal frameworks on transboundary watergovernance is the UN Watercourses Convention(UNWC) of 1997. The development of the UNWC hasbeen an evolution of water law doctrines, ofinternational norms and multilateral agreements, andhas actually been in the making for over 50 yearsnow.  Although officially adopted in 1997, the UNWCimplementation and ratification process is also stillongoing today. The process of its formation can betraced to 1959 with a UN resolution submitted byBolivia on the use of international rivers (UN res.1401). This led in 1970 to the UN recommending theInternational Law Commission (ILC) to study non-navigational uses of international watercourses (UNres. 2669), which it did until 1994, pulling togetherlegal research and various proposed articles andstandards. The ILC thereby developed the DraftArticles of the UNWC in 1994, drawing upon theinternational legal frameworks, norms, principles, andagreements up to that period. The draft Conventionwas created from the basis of those Draft Articles,with a final text voted on in May 1997. The UNWC is a “a flexible and overarching global legalframework that establishes basic standards and rulesfor cooperation between watercourse states on theuse, management, and protection of internationalwatercourses.”(Loures, Flavia et al. 2015) As noted, many agreements have been introducedand evolved over this time, on a smaller scale, orwithout much enforcement. The Helsinki Rules (1966),Montreal Rules, and Seoul Rules on groundwater, theUNECE’s Convention draft protocols, the SADCprotocols (1995) the Mekong Agreement (1995), andinfluential bilateral agreements such as the 1991Protocol on Common Water Resources betweenArgentina and Chile, all gave precedence andinfluence to the formation of the UNWC (Eckstein,2002). The vote to adopt resulted in 103 nations in favor,with 3 against, 27 abstaining, and 33 absent. However,......

CASE STUDYUN Watercourses Convention 

by 2000, only 8 nations had ratified the agreementwhile 10 more had signed on. A non-bindingresolution or declaration could have been passedinstead, but the UNWC was developed and agreed,indicating it had wide support. Yet today in 2020, it isstill a question of what influence the UNWC trulyholds in international water law and transboundarywater diplomacy, as the majority of nations have stillnot adopted the UNWC itself.

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"Despite the hopes and promises of the WatercoursesConvention, nearly fifty years after its initial instigation atthe United Nations, more than 20 years following itsadoption by the UNGA, and over 5 years after it cameinto force, enthusiasm for that instrument appears tohave waned. Although the Watercourses Convention isnow in force for the states that have ratified it, it onlyattained that status following seventeen years ofrelatively slow progress with the bear minimum of 35ratifying parties required. Moreover, despite continuedencouragement by various non governmental andintergovernmental organizations, few new states seempoised to accede to the agreement" (Eckstein, 2020)

Current Parties to the UNWC

Benin, Burkina Faso, Chad, Côte d'Ivoire,Denmark, Finland, France, Germany, Greece,Guinea-Bissau, Hungary, Iraq, Italy, Jordan,Lebanon, Libya, Luxembourg, Morocco,Namibia, Netherlands, Nigeria, Norway,Paraguay, Portugal, Qatar, South Africa, Spain,Sweden, Syrian Arab Republic, Tunisia,Uzbekistan, Venezuela, Yemen.

Mekong River: Cambodia, Laos, Thailand and Vietnam votedin favour of the text, while China submittedone of only three votes against theConvention. Myanmar was absent from thevote.

Syr Darya, AmuDarya and Aral Sea: Kazakhstan voted for the Convention andUzbekistan abstained, while Afghanistan,Tajikistan and Turkmenistan were formalabsentees. Kyrgyzstan was not recorded asparticipating.

Danube River: Of ten riparian states, seven vote in favour ofthe text. Bulgaria abstained, while Yugoslavia(Serbia-Montenegro) and Moldova did notparticipate in the vote.

Rhine River: While France abstained, and Switzerland is nota member of the UN, the remaining sixriparian states voted in favour of theConvention text.

Colorado River and Rio Grande: Both Mexico and the US voted in favour of theConvention.

Columbia River: Both Canada and the US voted in favour of theConvention.

Amazon River: Brazil, Guyana, Suriname and Venezuelabacked the Convention, while Bolivia, Peru,Colombia and Ecuador abstained.

La Plata and Paraguay Rivers: Brazil and Uruguay supported the Conventionwhile Argentina, Bolivia and Paraguayabstained.

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Tigris and Euphrates Rivers: While Syria and Iran backed the Convention,Turkey voted against the text (upstream ofboth Syria and Iran). Iraq was not recorded asparticipating in the vote.

Nile River: In a watercourse that traverses North Africaand the sub- Saharan Africa geographicregions, only Kenya and the Sudan voted infavour of the Convention. Seven otherriparian states abstained, while Burundiopposed the text outright.

Niger and Volta Rivers: Three states voted in favour, two abstained,and three were absent, including Niger andNigeria. Chad and the Central African Republicdid not participate in the vote.

Limpopo River: Three of the four riparian states – Botswana,Mozambique and South Africa – voted for thetext, while the fourth, Zimbabwe, was absentfrom the vote.

Orange River: All four riparian states – Botswana, Lesotho,Namibia and South Africa – voted for theConvention.

Zambezi River: Angola, Botswana, Malawi, Mozambique andZambia backed the Convention, whileTanzania abstained, and Zimbabwe wasabsent.

Indus, Ganges, Brahmaputra and MahakaliRivers:Nepal and Bangladesh voted in favour of thetext, while Pakistan and India both abstained.Bhutan was absent from the vote.

UNWC Vote by Watercourse

In spite of the seemingly slow rollout of such alandmark international agreement, the UNWC is stillinfluencing the international water relations ofcountries that are not party to it. For example, bothEgypt and Ethiopia are appealing to Articles of theUNWC in their defense or objection to the GERDproject.  The fact that two nations in conflict can cite differentUNWC Articles meant to work in harmony, and usethem in opposition to each other, shows both theshortcomings of the UNWC for guidance in conflictresolution, and a potential reason for its slowacceptance. Yet the widely agreed principles it issupporting, are still impactful just the same, and theUNWC still carries weight as an internationalagreement.

The UNWC sought to set out the rights andobligations of countries sharing water resources, andto supplement, facilitate, and sustain transboundarywater cooperation through its provisions. Thesewould address legal weaknesses, provide policyguidance, help level the playing field, and account forsocial and environmental factors, while aiding othermultilateral and bilateral institutions in watercourseagreements

Key Provisions of the UNWC

The Articles of the UNWC are also significant in thatthey lay out a wide definition of internationalwatercourses that include a basin wide approach, asopposed to just the navigable waterways themselves.It defines a watercourse as a single unit of surface,and underground waters that includes the main river,its tributaries and distributaries, and any connectedlakes, wetlands, and aquifers. The most expansivedefinition helps to take a broader approach withrespect to international watercourses, whileaccounting for complexity and ecosysteminteractions. For example, land pollution that canaffect surface or groundwaters, would also becovered by the UNWC.

Defining Watercourses - Towards anEcosystem Approach

Article 5 - Equitable ReasonableUntilization (ERU)Since the UNWC has been developed Article 5 haswidely been considered its cornerstone provision andthe best reflection of law in the field overall. Theequitable and reasonable use outlook also combinessustainable development, as in order for a state’s useto be deemed equitable, it must be sustainable for allparties. Furthermore, what is equitable today maychange with circumstances, and no longer beequitable in the future.  Specifically, the principle requires that a State sharingan international watercourse utilize it in a mannerthat is equitable and reasonable to other partiessharing the watercourse, and must take into accountall relevant factors to ensure this is met. The UNWCalso provides more context to this Article with anindicative list of relevant factors for balancing thecompeting interests of riparian states. In addition, itprovides a special consideration for vital humanneeds, and providing enough water to sustain life andprotect food resources.

That the ERU can be used for both water quantity andquality is due to the legal weight behind equity and itsconnection to sustainable development, which is aprimary reason why it is seen as the cornerstone ofthe UNWC, and of the application of internationalwater law in general. Equitable use vis-à-vis otherusers, would also imply no significant harm is beingdone. However, the UNWC further addresses thisprinciple specifically in a separate Article, whichshould in theory further support the ERU principle,but in practice, could be applied against it as well.

Article 7 - No Significant Harm (NSH)The second major principle from the UNWC is Article7 on No Significant Harm, which goes a bit furtherthan the ERU principal in that it places a burden ofresponsibility onto the user of shared watercourses,to take every available measure to prevent doingharm. In one sense, the ERU principle helps to fostercooperation and prevent conflict, while the NSHprinciple can better deal with conflict resolution, andserve as a guiding principle once conflict hasoccurred. In tandem, they express that equitable usewill not cause significant harm.

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The NSH principle of the UNWC also provides furtherguidance on the relevant factors to consider, in orderto ensure that no significant harm is being done. Thisis something that could be further illuminated bysuch conflicts as the GERD project dispute — butsince both parties are not a party to it, neither isreally proving a specific Article in a relevant court thatwould help to inform the jurisprudence of the UNWC.It may be, that the NSH principle does not work inEgypt’s favor with its emphasis on “historic” rights andno harm to those historic rights, which are practicallyabsolute. In addition, a court may find that Ethiopia’suse under ERU is granted, but the very question ofhow quickly to fill the dam may side with Egypt’sobjections. Instead, both parties claim their chosenprinciple of international law, and no specificagreement has been made. The NSH rule has been around as a general rulethroughout the evolution of international water law,but has taken a backseat to the ERU principle duringthe evolution of the UNWC, from the Helsinki rules in1966, to the Draft Articles developed by the UN-ILC.

Thus, while the Helsinki Rules confirmed the existence ofa broad no harm principle in international law, they didnot treat it as determinative in the use of shared freshwater resources, instead subjecting such use to theequitable and reasonable utilization principle. Theevolution of the Draft Articles in the work of the ILC,which became the foundation for the UNWC, furtherreflects the inconsistent approach to the relationshipbetween the equitable and reasonable utilization and noharm principles in international water law. The ILC’s firstattempt to formulate these principles in 1981 clearlystated that equitable and reasonable utilization was theprimary principle of international water law, to which the“no appreciable harm” principle had to yield. However,this approach changed the following year and, while theequitable and reasonable utilization principle was stillendorsed, “no appreciable harm” became the dominantrule once more, and “was not to yield to considerationsof equity and reasonableness in the sharing of the usesof the waters” (Meshel, 2020)

The result of these ILC evolutions of the NSH principleover time, have actually helped to make it moreuseful in terms of guidance in the end. By beingrefocused, the NSH principle requires an obligation toactively ensure no harm is done, rather than a duty tosimply refrain from doing harm. It is proactive, asopposed to passive.

The lack of an objective standard within ERU, whichmust be assessed on a case-by-case basis, and theunderstood subversion of the NSH rule to the ERU,has also meant that the UNWC is less precise in itsguidance in the midst of conflict between these rules.As “no harm” is only one determination in a widerconsideration of equitable use. The courts haveprovided little guidance on how these two competingprinciples should be applied simultaneously. In the1997 Gabcıkovo-Nagymaros dispute the ICJ prioritizedthe ERU principle over NSH, calling it the guidingprinciple of international water law, with no directreference to NSH despite its usage in theproceedings. In the 2010 Pulp Mills case the ICJ citedthe NSH rule, in that equitable use could not beestablished if the interests of other riparian stateswere not factored in, both in terms of harm frompollution, or harms in type of usage. In 2012 on theIndus River arbitration, again the NSH principle wascited as an obligation under international water law.Both are therefore key principles of internationalwater law, but NSH has typically been applied as afactor of ERU, and therefore subservient to it.

These two key principles of ERU and NSH form thebedrock of international water law—but the lack ofclarity on their dual application towards presentconflicts undermines their effectiveness. It alsoundermines the ascension of the UNWC as commonstandard to be widely accepted in transboundarywater regimes. With further adoption andclarification, more jurisprudence can help to establishclearer guidance in the legal resolution oftransboundary water conflicts.

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References

Cech, T.V. (2010). Principles of water resources; history, development, management, and policy (3rd ed). JohnWiley & Sons.

The Water Rights Process, (n.d.). Retrieved from https://www.waterboards.ca.gov/waterrights/board_info/water_rights_process.html

Vinogradov, S., Wouters, P. & Jones, P. (2003). Transforming potential conflict into cooperation potential: Therole of international water law. p.20. UNESCO, IHP, WWAP

Meshel, T. (2020). Swimming against the current: Revisiting the principles of international water law in theresolution of fresh water disputes, Harvard International Law Journal, Vol. 61, Winter 2020, Retrieved fromhttps://www.internationalwaterlaw.org/blog/category/international-water-law/

Transboundary Waters, (n.d.). Retrieved from https://www.unwater.org/waterfacts/transboundary-waters/

Rieu-Clarke, A., Moynihan, R., & Magsig, B.O., (2012). UN watercourses convention, user’s guide, p.29, UNESCO

Ramsar, (n.d.). The convention on wetlands and its mission. Retrieved from https://ramsar.org/about/the-convention-on-wetlands-and-its-mission

Tanzi, A. (2014). Comparing the 1992 UNECE Helsinki Water Convention with the 1997 UN New York Conventionon international water-course: harmonization over conflict, Questions of International Law. Retrieved fromhttp://www.qil-qdi.org/comparing-the-1992-unece-helsinki-water-convention-with-the-1997-un-new-york-convention-on-international-water-course-harmonization-over-conflict

Nikolaus, V., Arpon, K.D., & Giakoumis, T. (2016). The EU water framework directive: From great expectations toproblems with implementation, Science of the Total Environment, Volume 575 (2017), p 358-366. Retrievedfrom https://doi.org/10.1016/j.scitotenv.2016.09.228

Senegal River Basin (n.d.), International Waters Governance. Retrieved fromhttp://www.internationalwatersgovernance.com/senegal-river-basin.html

The Sava Commission, (2008), About, History, http://savacommission.org/history 

Steiner, A. (2004). An introduction to the African convention on the conservation of nature and natural resources.IUCN Environmental Policy and Law Paper No. 56. Retrieved from https://www.iucn.org/content/introduction-african-convention-conservation-nature-and-natural-resources-0

Magdy, S., 2020, June 18, Sudan says talks on Ethiopia’s Nile dam fail to produce deal, APNews. Retrievedfrom https://apnews.com/6c445e7b365684f4b5269df3408bb364

Brunee, J., (n.d). ESIL Reflection, volume 5, issue 6, European Society of International Law. Retrieved fromhttps://esil-sedi.eu/post_name-123/

Kimenyi, M.S., Mbaku, J.M., (2015, April 28). Africa in focus: The limits of the new Nile agreement, Brookings.Retrieved from https://www.brookings.edu/blog/africa-in-focus/2015/04/28/the-limits-of-the-new-nile-agreement/

Abebe, D. (2014) Egypt, Ethiopia, and the Nile: The Economics of International Water Law. University ofChicago Public Law & Legal, Theory Working Paper No. 484. Retrieved fromhttps://chicagounbound.uchicago.edu/cgi/viewcontent.cgiarticle=1944&context=public_law_and_legal_theory

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References

Qamar, M.U., Azmat, M. & Claps, (2019). Pitfalls in transboundary Indus Water Treaty: A perspective to preventunattended threats to the global security. npj Clean Water 2, 22. Retrieved from https://doi.org/10.1038/s41545-019-0046-x

Johnson, K. (2019, February 25). Are India and Pakistan on the verge of a water war?, Foreign Policy,Retrieved from https://foreignpolicy.com/2019/02/25/are-india-and-pakistan-on-the-verge-of-a-water-war-pulwama-kasmir-ravi-indus/

Loures, Flavia, et al. (2015). Everything you need to know about the UN Watercourses Convention ,WWF,retrieved from https://www.un.org/waterforlifedecade/water_cooperation_2013/un_watercourses_conventtion.shtml)

Eckstein, G., (2002). Development of international water law and the UN Watercourse Convention, Turton,A., Henwood, R., (Eds.), Hydropolitics in the developing world - a southern african perspective, AfricanWater Issues Research Unit (AWIR).

Eckstein, Gabriel (2020). The status of the UN Watercourses Convention: does it still hold water?Retrieved from https://www.tandfonline.com/doi/full/10.1080/07900627.2019.1690979

Sources for Further Learning

International Court of Justice - https://www.icj-cij.org/en

International Water Law Project (IWLP) - https://www.internationalwaterlaw.org/

Permanent Court of Arbitration - https://pca-cpa.org/en/home/

Ramsar Convention on Wetlands - https://www.ramsar.org/

United Nations International Law Commission - https://legal.un.org/ilc/

UN - Uphold International Law - https://www.un.org/en/sections/what-we-do/uphold-international-law/index.html

European Commission - https://ec.europa.eu/environment/water/water-framework/index_en.html

Organisations

Boisson de Chazournes, Laurence, Fresh Water in International Law, Oxford University Press, 2013,https://global.oup.com/academic/product/fresh-water-in-international-law-9780199565085 

Boisson de Chazournes, Laurence, et al., The UN Convention on the Law of the Non-Navigational Uses ofInternational Watercourses; A Commentary, Oxford University Press, 2019, ISBN: 9780198778769https://global.oup.com/academic/product/the-un-convention-on-the-law-of-the-non-navigational-uses-of-international-watercourses-9780198778769

McCaffrey, Stephen, The Law of International Watercourses, Oxford International Law Library, 2019 ISBN:9780198736929 https://global.oup.com/academic/product/the-law-of-international-watercourses-9780198736929

Environmental History of Water: Global View of Community Water Supply and Sanitation by Petri S. Juuti, Tapio S.Katko, and Heikki S. Vuorinen  published by IWA Publishing https://www.iwapublishing.com/news/brief-history-water-and-health-ancient-civilizations-modern-times

Books

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Papers

Stephen C. McCaffrey (2008) Convention on the Law of the Non-Navigational Uses of International Watercourses,United Nations Audiovisual Library of International Law, https://legal.un.org/avl/ha/clnuiw/clnuiw.html

Owen McIntyre (2013) Utilization of shared international freshwater resources – the meaning and role of “equity” ininternational water law, Water International, 38:2, 112-129, DOI: 10.1080/02508060.2013.779199

Dr. Tamar Meshel (2020) Swimming Against the Current: Revisiting the Principles of International Water Law in theResolution of Fresh Water Disputes, Harvard International Law Journal https://harvardilj.org/wp-content/uploads/sites/15/61.1-Meshel.pdf

United Nations World Water Development Report 2020: Water & Climate Changehttps://www.unwater.org/publication_categories/world-water-development-report/

Webpages

India to block Kashmir water supply from Pakistan - https://www.youtube.com/watch?v=1QhfKOwFjBs 

Ethiopia to fill Nile dam in July even if 'no agreement reached' - https://www.aljazeera.com/news/2020/06/ethiopia-fill-nile-dam-july-agreement-reached-200626085142188.html

Developed for water industry practitioners andgovernment officials at the request of MEDRC’smember countries, MEDRC’s Practitioner Briefingseries serve as a guide to trends in transboundaryenvironmental cooperation. The initiative isintended to bridge the academic-practitioner gapin the sector by providing short, accessible andpractical overviews, each focusing on a differenttheme.

To date, seven issues have been releasedexamining the following topics;

Issue 1 - Water Accounting+Issue 2 - WastewaterIssue 3 - Climate FinanceIssue 4 - The Water-Energy-Food NexusIssue 5 - Water Cyber SecurityIssue 6 - Transboundary DamsIssue 7 - International Water Law

A full archive is available to read on the MEDRCwebsite medrc.org/developmentcooperation

Briefs in the Series

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MEDRC's Transboundary Waters Practitioner Briefing series has been developed for water industry practitioners andgovernment officials at the request of MEDRC’s member countries, with sponsorship provided by the Netherlands andSweden. The briefings are meant to be informative and practical, providing an overview of the subject matter material,while remaining accessible to various backgrounds and disciplines. The briefings serve to develop shared knowledgeand serve as a basis of further discussions between partners. If you would like to learn more about these subjects,please see the section 'Sources for Further Learning'.

Acknowledgements

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