David Krohn

Dissolving Differences chapter 7: International Water Law and the nature of water norms:

International Water Law (IWL) is the body of law governing actions over water shared by two or more states  and has been developed through multiple attempts to ease conflicts over transboundary resources.  Water law is a complex topic which grows ever more important in a world of growing scarcity.  It has been derived from lengthy custom and a wealth of treaty practice but also draws much of its normative force from other sources such as the general principles of law, judicial decisions, resolutions and recommendations from international organizations.

The development of IWL is inseparable from the development of international law in general as it incorporates such important principles as sovereign equality of states, non-interference in matters of exclusive national jurisdiction, responsibility for breach of state international obligations and the requirement of peaceful settlement of disputes.  Indeed, International water law seeks to reconcile the sovereign rights of states to optimize benefits for all parties while ensuring an adequate level of protection for the watercourse and its ecosystem. Thus, it is no coincidence that it uses language centred on the limitation of sovereignty. Never the less, nations have found innovative ways to share the waters of transboundary resources and this has been found to be greatly beneficial for disput e avoidance.

International law regulates water management for three reasons. Firstly international watercourses influence more than one state and shared watercourses have an inter-state character.  Secondly, water management impacts upon human rights and other principles upon which the international system is founded. Thirdly, the ambient nature of water internationalizes effects from action anywhere on the water cycle and often causes transboundary effects.  As a result of this internationalization, IWL contains substantive elements that determine legal entitlement to the benefits associated with watercourses along with procedural elements such as dictated behaviours that are required when developing the resources.

The fact that water is essential to so many sectors of society has created conflicts between users and necessitated a means of prioritising users to put water to it’s most beneficial uses. The question remains whether certain users should be granted priority over others if they have vested interests in the waters and these interests are core considerations for the maintained productivity of the state. IWL attempts to regulate the users and usages in such a way to maintain and develop equitable divisions as well as incorporating an element of conservation into decisions affecting water governance.

7.1 Progressive codification of water law:

Water law originated some 2000 years ago as various civilisations were forced to deal with the issue of water allocation and its legal aspects.  Indeed the rise and fall such varied early civilisations as the Egyptian, Hindu, Meso-American, Hebrew and Mesopotamian societies seems to be closely linked with the availability and management of water resources.

Water law was important during the period of roman influence and several key principles were formed at this time. The Romans recognized several rights including the right to water use and a right of access to water. They observed a distinction between private and public water depending on the legal status of the land it was found on. They further categorized water depending on the end usage and recognized the multiple roles water plays in society. Roman law even contained an embryonic formulation of the no harm rule in the prohibition on the use of water for the purpose of damaging your neighbour.

Roman law remains influential in European law and the law of many other regions. Through the process of colonisation Roman law has been exported to the colonies of Africa, the Americas, Asia and Australia.  These countries had Roman law imposed upon them and their legal systems reflect this to the present day. Other important sources of water law are Moslem, Hindu and Buddhist systems that have their origins in religious texts. Indeed, the name of the general Moslem legal system is “Sharia” which translates literally as “path to water”  and demonstrates the high regard which this culture, along with many others throughout the world, treat water and the rights to it.

Throughout history, laws have developed in response to an experienced need in different regions and sectors. Initially, the legal focus of water law was the regulation and protection of freedom of navigation based on the idea of common interest. The priority afforded navigation peaked in 1919 with the Peace Treaty of Versailles and began to decline in parallel with fascism.  Beginning in 1814, non-navigational usages have garnered more attention and, especially since the end of World War II, issues other than navigation have begum to dominate bilateral conventions. The cold war and decolonisation further shifted the emphasis of water law to non-navigational issues such as Frontier Rivers, legal entitlement to the benefits of water usage and ecological protection.

The first effort to codify international custom relating to these factors shared watercourses was made by the Institute of International law in 1911 in its Madrid Declaration entitled “International Regulation regarding the Use of International Watercourses for Purposes other than Navigation.”

Still the issue remained on the periphery and this early text was only followed in 1966 by the ILA’s Helsinki rules on the uses of the waters of international rivers.  The rules were undoubtedly a systematic and comprehensive attempt at formulating an international code of conduct  which excluded only the issues of ground waters and boundaries.  The rules continued to evolve and were updated on several occasions to include emerging concepts such as improved environmental protection.

The text laid a precedent for future documents by enunciating the rule of Equitable and reasonable use in art 5 and a list of factors to consider when implementing it in art 6.  Importantly Art 7 stated that there was no category of use that would enjoy preference of use other others.  Thus the Helsinki rules sowed the seed of IWRM by urging equal consideration of all actors, present and future, and laid the cornerstone of modern IWL by embodying the rule of Equitable and Reasonable Utilization (ERU) for the first time.

Yet the rules influence ran much deeper than this as they had a profound effect on the treaty practice of states and its principles were increasingly relied upon in later efforts to identify and integrate the existing law.  These principles can be found in several important documents including the 1992 UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes, the SADC revised protocol and other regional agreements.

Despite the sense and soundness of the rules, they received little official standing and carried little normative force.  As a result, water supplies, especially those in developing countries continued to dwindle. As a response, the UNGA requested the ILC to prepare a set of draft articles to govern the non-navigational uses of IWC. That was 1971 and it took twenty years, thirteen reports and five Special Rapporteurs before the commission was able to release a first draft of 32 articles to the UNGA for discussion and comments by governments.

The 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses was negotiated and accepted by the UN general assembly. Though not yet in force the convention has been referred to in Gabcíkovo-Nagymaros  ruling as evidence of custom.

The ILA continued to work in this field and adopted a new set of rules dealing with a range of issues known as the 2004 ILA Berlin Rules on Water Resources.  The Berlin rules, which attempted to update existing IWL, have received mixed reaction. Some commentators saw great value in the rules which seem to be an accurate, progressive and integrated statement of the existing rules governing the management of international water resources. As such, they should be of great use in the management of these bodies.

On the other hand, these rules have been widely criticized as not reflecting existing watercourse law  as they do not only deal with transboundary watercourses but, seemingly in contradiction to prevailing thought, have not preserved the domestic/international divide by including those entirely within one state.

The international community has failed to formulate a multilateral agreement binding on all parties  and it has been widely agreed that bi- and multi-lateral agreements on a regional scale play a fundamental role in the establishment of international water rights.  According to the UN Food and Agriculture Organisation, more than 3,600 treaties relating to international water resources were concluded during the period of 805 to 1984.  This intricate web of agreements results in a somewhat fragmented, chaotic situation and conflict is often the result as states are left scrambling for water rights.

Due to the general absence of an enforcement mechanism, international customary law by itself has proved largely ineffective at solving the problem of managing transboundary water resources.  Thus, treaties offer the greatest chance of minimizing the risk of conflict and substantial treaty practice has emerged. Following this allocated shares have been respected even in times of open hostility.

The complex system of international agreements that forms the legal framework for peaceably coexisting in a shared basin has been fundamentally shaped by customary international law. Even in the absence of such agreements, customary law provides ample guidance in the form of simple rules that allow nations to peaceably coexist in shared river basins.  However finding the appropriate practice involves study of international agreements, decisions by international courts and arbitrators and, tellingly, the unilateral acts of nations.

7.2 Formation of customary law: Limiting unilateral sovereignty

Due to the consistent practice of claim and counterclaim, the sharing of international waters has become entirely predictable, except in times of extreme power imbalance.

All nations agree that only co-riparian nations may have access to any part of the shared water resource but thereafter opinion diverge sharply according to the status of the nation.  It is the nature of water that it takes on different characteristics as it flows through its course and this is reflected the traditional stances of upper and lower riparian nations that claim diametrically opposed models of water resource usage.

In the past, states sought to derive optimal benefits from their water resources and upper riparian states were the first to claim “absolute territorial sovereignty” or the right of states to develop resources within their territory without contemplation of the effects downstream.  This became known as the Harmon Doctrine after a dispute between the United States of America and Mexico over the waters of the Rio Grande led Attorney General Judson Harmon to proclaim ‘…the jurisdiction of the nation within it’s own territory is necessarily exclusive and absolute…’

This stance left lower riparian nations clinging to the somewhat unlikely concept of “absolute territorial integrity”   or “total integrity of the river”, which was formed in response and claimed the right to water resources in an unaltered state.

The utter incompatibility of these two notions has ensured that alternate models would be required to adequately share water resources and modern IWL has recognised several guiding principles that dictate behaviours and standards expected of states when developing IWC. Negotiated over a period of decades,  these customary law principles have the effect of limiting the scope for unilateral action and have come to embody the doctrine of limited territorial sovereignty.

When planning any measure on any part of an international watercourse, Governments are compelled to consider the general principles of the law of international waters. There are three recognised principles, those of ERU, prior notification and the prevention of significant harm or no-harm rule.

The allocation of scarce water resources is primarily regulated by the principle of ERU which provides states with a right to share in the benefits associated with water usages. However the principle qualifies state sovereignty by pressing states to recognise the interconnected and interdependent nature of water resources and usages.

The International Law Association’s Helsinki Rules were the first to enunciate the concept ERU which is the usual solution to the impasse created by the geopolitical stances of co-riparian nations.   This principle, which guides the allocation of shared water resources, has its roots in the domestic judicial practices of federal states such as the US, Germany and Switzerland and more precisely in the case-law relating to the allocation of water resources among the member units of those countries.  The practice of the US Supreme Court in the domestic setting has been particularly helpful to the development of this doctrine as the rule of “equitable apportionment” evolved as a rule to balance and align the competing aims of sub national actors.

Since then, the principle of ERU has been crystallised into a rule of CIL derived from national and international judicial practice and supported by the successful treaty tradition.  ERU has in fact evolved into the primary rule of IWL and now houses correlative rights and duties determined on a case-by-case basis and a weighing of all relevant factors in a holistic manner.

The rule of equitable utilization is based on the idea that a drainage basin is a coherent and manageable legal unit and embodies the doctrine of “limited sovereignty”.  This concept recognises all nation’s equal right to a share of the uses and benefits of a shared source or watercourse and the correlative duty not to interfere with other nation’s expectations of a reasonable share of the benefits.

Nations often allocate water under this international water law which contributes towards peaceful coexistence and cooperation in the management of shared catchments.  Consequently, any planned action must not restrict or infringe on the right of other parties to an equitable and reasonable share of the uses and benefits of the water.  While international law accepts the sovereign right of nations to develop their resources, there is a balancing obligation to be aware of the transboundary effects of their activities.

Thus the outdated, static idea of national sovereignty was limited by concepts such as “equitable utilization” and “reasonable use” codified in the Helsinki Rules on the Uses of Waters of International Rivers of 1966.

‘Watercourse states shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse states with a view to attaining optimal and sustainable utilization thereof and benefits there from, taking into account the interests of the watercourse states concerned, consistent with adequate protection of the watercourse.’

Thus international water law had progressed significantly in the twentieth century and this doctrine now forms part of customary law and is even considered jus cogens by some nations.  Furthermore, the reference to sustainable utilization helped place IWL in the wider context of IEL and sustainable development.

In the Gabcíkovo-Nagymaros case, the ICJ affirmed the right to an equitable and reasonable share of a watercourse.  Paragraph 78 of the ICJ
Judgment states:

‘The suspension and withdrawal of that consent constituted a violation of Hungary’s legal obligations, demonstrating, as it did, the refusal by
Hungary of joint operation; but that cannot mean that Hungary forfeited its basic right to an equitable and reasonable sharing of the resources of an international watercourse. In depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube, the proportionality required by international law was not respected.’

Mean while, the no-harm rule has originated from and developed around the consideration that neighbouring states may not act as they please within their territories. The dictum sic Mere tuo ut alienum non laedus recognises that states may not use or allow their territory to be used in a way that may cause damage to their neighbours. This principle, which is linked to the concept of abuse of rights and originated in the sphere of private law, seems to constitute a “general principle of law recognized by civilized nations” which places it firmly in the landscape of CIL.

The no-harm rule covers a large range of actions, including issues pertaining to the protection of the environments and allocation of benefits of shared watercourses.  While it remains particularly relevant to environmental protection, it is of little use in determining legal entitlement in that most waterways are fully or over exploited and the issue is no longer one of preventing harm but rather apportioning uses between competing uses and users.

7.3 The formulation of the UN Convention:

The rules of customary international rules governing freshwater resources form the basis of the UN Convention on the Non-navigational uses of International Watercourses (the UN Convention), the primary international framework convention for water law. Of utmost importance here is the fact that the UN convention recognizes the need to take each situation on its merits and urges all co-riparian states to cooperate in the joint management of all international rivers.  It passes its rules of “equitable utilization” and “reasonable use” onto a multitude of bi- and multilateral agreements that form the basis for the regulation and management of water rights.

Whether or not the UN convention gains ratification is irrelevant as it remains the core framework document and a model upon which states wishing to develop their resources can rely on to provide sound principles.  The convention has been repeatedly affirmed as a declaration of existing watercourse law.

Given the multitude of treaties and agreements in this field it may be surprising that the only universal document in the watercourse suite was adopted fairly recently.  The original attempt to draft a treaty began in 1970 when the UNGA asked the ILC to consider the rules applicable to the governance of international watercourses.   The ILC consists of 34 lawyers acting in their individual capacities and representing the major law systems of the world and is the UN organ charged with the codification and progressive development of international law.  The ILC recognizes the main challenges to water security as: meeting basic needs and securing food supply, protecting ecosystems, sharing resources, managing risks and governing water wisely.

The difficulties formulating a mutually agreeable treaty was evidenced by the length of time it took to draft and the seemingly irreconcilable views held by the diametrically opposed positions of upper and lower riparian states.  Yet, the final convention turned out to be one of the most successful of the recent environmental agreements and has gained wide acceptance, which is surprising given the protracted debate during its drafting.  It seems this is a sign of the international community’s commitment to equitably sharing water resources and evidence of the conventions place in the body of general international law applying to all nations.

The primary strength of the UN convention is a flexible yet decisive rule for apportioning benefits from the international water resource and determining legal entitlement.  This is accompanied by detailed procedural rules and a layer of preventative actions to further protect scarce water resources.  Thus the convention also attempts to use substantive rules to place all stakeholders on a level playing field, which helps weaker riparian nations to state their position and claim their rights.

The fact that ERU is required by international customary water law is evidenced by the proliferation of bi- and multilateral agreements based on its tenants and the fact that the rule was also present, in an unaltered state, in the initial formulation of UN Convention on the Non-Navigational Uses of International Watercourses as expressed in article 5:

“1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse.
2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.”

Article 5 goes on to state that all watercourse nations shall participate in the use, development and protection of shared water resources. It also impresses the fact that the right to utilize the water resource contains a corollary duty to cooperate in their protection and development.

Article 7 requires watercourse nations to take all “appropriate measures” to prevent “significant harm” to other watercourse nations. If a nation is found to support a use which may cause harm it must take all “appropriate measures” to mitigate the effects of the harm and, if necessary, explore the possibility of compensation.   Like the polluter-pays principle, the no-harm rule provides grounds for such compensation and shifts the cost of repairing damage to those responsible for it, whether they are state or private entities. It does not seek to prevent harm but grant access to the legal system for those affected by it.

The convention further strengthens the international regime by codifying the prior notification rule and providing mechanisms for establishing joint management schemes.  Art 4 of the convention states that any “…watercourse State is entitled to participate in the negotiation of and to become a party to any watercourse agreement that applies to the entire international watercourse, as well as to participate in any relevant consultations…”.   This codification of the prior notification rule allows any interested states to participate in all negotiations over planned measures.
The procedural rules of the convention are a particular strength as they provide ample opportunity for governments to consult, cooperate and exchange information crucial for successful management.  These pragmatic principles help nations to resolve disputes over the fair allocation of resources and guide governments towards peaceable, lawful exercise of their water rights.

7.4 The Effect of the Berlin rules:

In the early years of the 21st century, the Helsinki rules were nearly 40 years old and the UN convention provides only a very general framework. New rules could provide a comprehensive, cogent and complete summary of existing CIL relevant to water management decisions.

They were approved by the ILA on the 21st August, 2004 and lay out a new paradigm bridging the domestic- international divide. They stress conjunctive, participatory and integrated management of water resources and the minimization of environmental harm for all waters. On a domestic level they stress participatory management through implementation of a rights based approach. They accordingly recognize the right of access to water, a voice in decisions affecting one’s life, access to education and access to legal remedies and associated compensation. The polluter pays principle is often used to gain redress in a situation of compensation for injury.

The link between sustainability and minimization of environmental harm is tackled through the study of ecological integrity and the prevention and control of pollution, especially by hazardous substances. Prior assessment of possible impacts is essential and must be based on the precautionary principle to determine the least net environmental harm.

For shared international waters they reiterate the importance of ERU and cooperation and contain a watered down version of the no harm rule in the form of the principle of avoidance of transboundary harm. To bolster cooperation they suggest several modes such as exchange of information, harmonization of national policies, notification of projects or activities and continued consultation through the establishment of joint management institutions.

They implement ERU stressing the need for “due regard” to the avoidance of harm principle. No a priori preference of usage except for the fulfillment of basic human needs. They update the factors listed for the determination of ERU by including natural features, social and economic needs of states, the extent of each state’s dependence on the waters in question and the effects of one state’s uses upon the other state. It further takes cognizance of existing patterns by considering consumption, existing and potential uses and the availability of alternatives.

The ILA began its study of the law governing international watercourses in 1954 and objects to the inclusion of waters under national jurisdiction within the scope of the Berlin rules.  They feel that the WRC has not satisfactorily merged the distinct bodies of national and international laws. The remnants of references to transboundary waters litter the chapters while it fails to recognise that equitable use has long been the mantra of international water law as opposed to the equity/efficiency/sustainability triad operating in domestic legislation.

The effect of equitable and reasonable use as laid out in art 4 of the 1966 Helsinki rules apportions a right of entitlement to a equitable share of the benefit uses of the waters of a transboundary watercourse not to an equal share of the waters. The drafters of the rules fail to take cognizance of this fact and they make no mention of rights, entitlement or beneficial uses but rather imposes a duty to “manage water in an equitable and reasonable manner” in art 12.

The emphasis is on this duty of states throughout the report and it seems that the objective has been to design a declaration that affords greater ecosystem protection. It seems that the WRC has made water law incidental to all encompassing environmental law and has, in art 12 and 16, attempted to make the principle of ERU as subordinate to the no-harm rule.

While the elimination of the domestic- international divide is crucial, ERU should maintain its place as the primary agent of integrity. Adoption of the rules threaten to abrogate the CIL developed on equitable utilisation since 1966 as well as being contrary to the principles laid out in the UN convention and the rulings of the ICJ in the Gabicovo-Nagymaros case.  Although the WRC has stated that its goal was the progressive codification of international law yet it has contradicted existing customary law and struck at the foundations of the Helsinki rules and subsequent resolutions of the ILA.

Furthermore, the draft rules fail to distinguish between rules of law and emerging principles or merely desired law as they have stated rules that have not passed the tests for formation of CIL. This detracts seriously from the reliability and utility of the draft rules. They could pass off this shortcoming through usage of the hortatory “should” as opposed to the obligatory “shall” yet this modification has been avoided in the draft rules. The adoption of the rules would make for a radical and unwarranted departure from the largely successful regime established by the ILA and would greatly diminish the legitimacy of watercourse law and the ILA.

Conclusion:

While the lengthy and inclusive process that has marked the formation of IWL has led to an impressive body of law, the lack of consensus regarding the function and positioning of laws has had a negative impact on the effectiveness of the regime. As a result, water law has consistently failed to take its rightful place as a leading aspect of international law.

Departures from the established norms of IWL represent the dynamic nature of the regime yet are seen by many as damaging to the unity of the regime and decreasing its utility. While the Berlin rules have the potential to be divisive, they are the natural progression of water law and thus serve to advance the regime and the norms contained therein.

The lack of consensus indicates the urgent need for, and great difficulty in formulating, a body of universally accepted norms that are flexible enough to accommodate emerging trends and challenges without requiring the consent of the magnitude of actors in this field. Such norms would need to be backed by an organization with enough legitimacy to properly bind states and as yet there is no such institution in existence. It is crucial that the work begins on constructing environmental bodies with these abilities and the foundations are laid in the norms themselves.

Resorces:

· A Hildering International law, sustainable development and water management (Delft: Eburon Publishers, 2004)

· P Wouters ‘The legal response to international water scarcity and water conflicts: The UN watercourses convention and beyond’ available at http://www.dundee.ac.uk/water/Documents/Publications/GYIL.pdf (accessed  October 2007)

· L Caflisch ‘Regulation of the Uses of International Watercourses’ available at www.popline.org/docs/1284/138478.html (accessed February 2008)

· J Salzman ‘Thirst: A short history of drinking water’ (2005) Duke Law School legal studies research paper series Research paper no.92 available at eprints.law.duke.edu/archive/00001261/01/17_Yale_J.L._&_Human._94_(2006).pdf (accessed December 2007)

· J Van Wyk, ‘Towards Water Security in Southern Africa’ (1998) available at www.iss.co.za/ASR/7No2/VanWyk.html (accessed March 2007)

· S Vinogradov et al “Transforming Potential Conflict into Co-operation Potential: The Role of International water law” (2002) UNESCO Technical Documents in Hydrology No. 2 available at unesdoc.unesco.org/images/0013/001332/133258e.pdf (accessed March 2007)

· Gabcíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 1997/1

· JW Dellapenna ‘The International Law Associations Berlin Rules on water resources and their relevance to Australia’ (2004) available at http://www.icewarm.com.au/userfiles/File/Berlin%20Rules-Relevance%20to%20Australia.pdf (accessed October 2007)

· Helsinki Rules on the Uses of Waters of International Rivers (1966)

· United Nations Convention on the non-navigational use of International Watercourses(1997)

· Berlin Rules on Water Resources (2004)

· ‘ILA Berlin Conference 2004 – Water resources committee report dissenting opinion’ published by the International water law project available at http://www.internationalwaterlaw.org/intldocs/ila_berlin_rules_dissent.html(accessed December 2007)

Tags: berlin rules, helsinki rules, ILA, international water law, non-navigational, progressive codification, un convention on non-navigational uses of international watercourses, unilateralism, water lawhistory of water law, water norms

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