David Krohn

Dissolving Differences Chapter 8: The utility and status of Equitable and Reasonable Utilization

So far our study has indicated that IWL is the product of intense and comprehensive debate which has pointed out several controversial aspects. Three central issues dominating the drafting of the UN convention were:

1. The status of existing treaties and the effect on existing and future agreements
2. The relationship between the principles of “equitable and reasonable use” and the no harm rule.
3. The ability of a framework agreement to house compulsory dispute settlement clauses.

A discussion of these issues will aid our understanding of IWL and assist us in visualising future norms capable of adequately tackling the challenges facing the legal regime governing interactions over water resources.

8.1 The Convention in its Relation to Existing and future Watercourse Agreements

The discussion around the relationship between the UN convention and treaties yielded some of the clearest indications of the status of the principles housed in the UN convention. It was at this point that some riparian states, notably Portugal and Ethiopia, first argued that some parts of the UN convention must be considered not only as existing customary rules but as rules of jus cogens and as such, could not be derogated from by any other norm of international law, including treaty provisions. Under art 64 of the VCLT this could have meant the lapse of all existing watercourse agreements with contradictory rules. This point was emphasized by countries such as Egypt, France and Switzerland which argued in favour of the retention of existing treaties and the compromises they house. It is interesting to note that the opposing parties contain states from both upper and lower riparian states. This demonstrates that the issue was not affected by geographical positioning as much as which nations were well served by existing watercourse agreements.

Eventually a deal was struck and the text of article 3(1) provides that “[n]othing in the present Convention shall affect the rights or obligations of a watercourse State arising from agreements in force for it on the date on which it became a party to the present Convention.”

This meant that states wishing to maintain existing treaties carried the day but, as a concession to those that wished to do away with them, art 3(2) urges states to align approaches and “…may, where necessary, consider harmonising such agreements with the basic principles of the present convention…”

However, this concession is virtually without substance. The language used in art 3(2) contains the hortatory “may” as opposed to the more obligatory “shall” and it is clear there will be little harmonization. If jus cogens status were conveyed it would require the amendment of existing treaties with or without the consent of States Parties in conformity with the law of treaties. The convention is too vague when implying which basic principles should be applied in this harmonisation and it indeed would be up to the states involved to do so which can be  accomplished only by consent. In short art 3(2) does not go much beyond stating the obvious that existing agreements may be amended with the consent of all the states parties to them.

The relationship of the convention to future agreements was again hotly contested yet art 3(3), which deals with this issue survived virtually unchanged from the original ILC drafts. The article provides that states “…may enter into new agreements which apply and adjust the provisions of the present Convention to the characteristics and uses…” of the specific watercourse.

While the verb “apply” seems to indicate a requirement of homogeneity between future agreements and the convention, the following verb “adjust” would suggest that a degree of deviation is acceptable. This view is strengthened by the words “may enter” which imply that whoever is free to conclude a treaty based on the principles of the convention is as justified in entering a convention which departs from them.

Thus the gathered states took the view that ERU was not to be considered jus cogens but Article 3 and the acceptance of the UN convention by the international community at large dictates that governments need to consider the provisions of the treaty when interpreting their existing agreements. Any treaty that contradicts the principle of equitable and reasonable use surely is contrary to IWL and a breach of international law, yet the net result of these conclusions about art 3 were that states were allowed to negotiate their own water sharing agreements but must consider the provisions of the treaty when formulating any new measures or interpreting old ones. The principles housed in the convention are consigned to the status of guidelines and the conventional freedom of States is fully maintained.

While a review of international practice does not reveal many examples of states wishing to participate in a watercourse agreement would be denied such a request, there have been cases where states are loath to participate in agreements for fear of limiting their freedom and compromising the viability of their riparian activities. By denying the elevation of ERU to jus cogens status, states have failed to prevent situations of deliberate deviation from the law and it is ultimately the unity of water law that suffers. It is of the utmost important that a high level of accord be apportioned to the rule of equitable and reasonable utilization in interpreting any existing treaty or formulating a new one.

It is unfortunate that states did not make better use of this crucial chance to cement the objectives of water law by using the idea that jus cogens norms form policy principles relevant to all levels of decision making. The Leader of the ILC Hersch Lauterpacht in his commentary to the 1953 draft articles of VCLT stated that jus cogens norms were “…such overriding principles of international law that they may be considered constituting principles of international public policy…”

Thus it is possible that including ERU as a norm considered to be part of this most important corpus, a higher status could be afforded to the important field of water law as they would be elevated to the level of international public policy. There could be little doubt that water law deserves such a status as water issues are generally agreed to be one of the greatest challenges facing the global community.

Elevation would have had a greatly positive effect on security in that water law would have been brought under the purview of the UNSC and that they would be compelled to consider a mandate for protection of scarce water resources. This could only have a positive effect on stability and would further strengthen the legitimacy of the body of law and the UN itself.

8.2 Relationship of No-harm and ERU:

ERU and the no-harm principle are often viewed as conflicting or competing and the relationship between the two ideas was the most hotly contested aspect of the draft articles. The burning question was which of these rules should prevail in times of insufficient reserves to meet the needs of all respective role players.

When this question first arose, in the context of the Helsinki rules, the ILA considered the principle of equitable and reasonable utilization their guiding principle. Accordingly, the no-harm rule formed part of a series of elements to be considered when determining whether a usage was equitable and reasonable. The no-harm rule was to be activated only if a planned new or expanded use was likely to exceed the bounds of what was equitable and reasonable and thus already illegal.

In the 1991 draft articles the no-appreciable harm rule was not only completely detached from ERU but was considered the cornerstone of the regime. Under that rule, a new use that may cause appreciable harm would not be permitted even if it was considered equitable and reasonable under articles 5 and 6. However, the no-harm rule held the ascendancy over ERU for only a short while as even a lowering of the standard of its threshold of acceptable harm from appreciable to significant could not gain the popularity necessary to prevent ERU from becoming the dominant rule.

The dominance of ERU is partly attributable to the shortcomings of the no-harm rule which did not allow for the settlement of disputes over allocation of fully or over utilised watercourses. In such a case it would give complete priority to existing uses and prevented further development.  Furthermore, the no-harm rule is heavily weighted in favour of lower riparians and, if it remained dominant, would maintain the status quo of favourable rights for downstream countries and retarded development in upstream nations.

Indeed, the Helsinki rules make no mention of a principle that would enjoin coriparians from causing each other harm. Art V of the rules enumerates several factors determining the equitable and reasonable share mentions among them “the degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State.” In other words, harm caused to the watercourse is an element to consider but not the decisive factor. This is so because in a fully exploited watercourse, any new activity would be prohibited as harmful to present users and uses.

The fact that at present almost any use of freshwater might lead to harm because of overexploitation is often cited as the primary reason for considering ERU as more suitable for regulating water allocation. However these days, the prohibition of certain harm seems all the more urgently needed.  Even insignificant pollution can be considered inequitable when it involves contamination of pristine resources.

Perhaps this suggests that the no-harm rule is more suited to conflicts over pollution problems as it provides a less flexible standard and provides a structured way to balance the processes responsible for generating pollution and the environment that receives it. Unfortunately, this approach has proven severely limited in that although it considers the main parties in a dispute, it fails to integrate other more external factors into the equation. Thus it ignores important factors such as other existing or potential uses, alternatives to the planned usage and fails to produce the holistic approach needed in this field.

Another argument is that the no-harm principle can be primarily regarded as a principle for demarcation rather than cooperation. The “mitigated-no-substantial-harm” rule may also lead to unequal bargaining positions of states as the rules foundation in the prohibition on significant harm and focus on “competing interests” create adversarial positions. However, cooperation is as much a condition for proper implementation of the no harm rule as it is for the rule of ERU. Thus it is increasingly argued that the two rules supplement each other.

In fact, there are several advantages of utilising the umbrella of ERU compared to stick of the no-harm rule. ERU provides an opportunity for parties to a dispute to present all relative factors placing all actors on a more equal footing and facilitating a more “needs based” approach. This in turn increases the development and utilisation of technical expertise and cooperation. We could envisage a time when a planned project can be integrated into a plan or treaty for any watercourse using negotiated measures and thus still be considered equitable and reasonable. In other words a polluting process could adequately fulfil the standards proposed by ERU if it entails effective mitigating efforts such as effluent treatment or other technological solutions. ERU has the added benefit of considering all factors relevant to pollution damage through linkages that are not directly tied to pollution but need consideration in the more general interaction of the states involved.

Many commentators stress the need for use of the no-harm rule as it offers the greatest level of protection for ecosystems but it should be obvious that implementation of ERU should be able to achieve the same goal as increased environmental pressures ensure that these imperatives receive a greater share of the force granted to ERU.

Art5 of the UN Convention determines the legal entitlement for use while art 7 describes the standards that governments must fulfil when utilising the shared resources. Thus the level of pollution permitted must be in accordance with the rule of ERU. The no-harm rule does however retain its utility due to the fact that it can have important effects for litigation and compensation in cases of damage. It is perhaps a good way to apply ERU as an effective way preventing harm, not only from pollution but also from practices that could be considered unreasonable.

It is in this way that ERU incorporates the no harm rule and in fact makes more effective use of it by applying another level of interpretive guidance.

Art 7 was controversial in the drafting process as it seemed to contradict ERU but the final draft eliminated this problem by emphasising the need to consider articles 5 and 6, which house the rule of ERU, in any problem relating to the no-harm rule. This places the no-harm rule securely subordinate to the rule of ERU yet retains its role in mitigation of damage and determinant of standards needed for determination of liability and compensation. It is interesting to note that the Berlin rules article 12 on equitable utilization includes due regard for the no harm principle while art 16 on the avoidance of transboundary harm makes mention of the right to equitable and reasonable use of waters.

This ranking of the norms housed within the UN convention and Berlin rules seem to be consistent with CIL as confirmed by judicial practice. In it’s ruling on the Hungary case, the ICJ restates that the convention is an accurate statement of CIL and twice refers to ERU. It does not even mention the no-harm rule, despite Hungary’s heavy reliance on the principle. This authoritive ruling clearly defines ERU’s superior position and that the avoidance of harm is only to be considered in determining whether certain usages are equitable and reasonable. The discussion indicated that ERU is an extremely functional and pragmatic way of dealing with water allocation and provides ample time for discussion, cooperation and the holistic weighing of all relevant factors.

8.3 Compliance and dispute avoidance in the weakened system:

Water scarcity is an increasingly inflammatory subject and it would seem that a uniform method for dealing with the disputes is required. Yet so far the world has failed to create a binding framework and current investigation, compliance and enforcement mechanisms remain weak.

The ability of conventions to house dispute settlement and compliance regimes was a highly controversial issue during the drafting session. Especially vexing were the questions of whether a framework treaty should house such mechanisms and to what extent they should be compulsory. While one group favoured binding dispute resolution, others considered such an approach too rigid and thus unsuitable for a framework convention. Some states went as far as arguing for complete discretion on the part of the state. In its final form, art 33 represents a compromise between the opposing parties. Aside from recommending the usual forms of dispute resolution, it provides for compulsory fact finding, which takes on the form of a conciliation procedure in the UN convention.

Distinct from the practice of recent global environmental agreements, the UN convention does not house a compulsory compliance monitoring system. It seems that much of the compliance monitoring occurs on the regional level where states have ratified the agreements more widely.

Indeed, standing judiciaries and specialized bodies are being formed on the regional scale. Importantly for our purposes, the UN Convention urges all regional or other watercourse agreements to contain compulsory dispute settlement clauses referring all disagreements to peaceful settlement with the ICJ or other, more specific tribunals. Although many basin agreements have failed to incorporate such clauses within their articles, there is a trend towards greater acceptance of peaceful settlement methods. The Southern African Development Community’s (SADC) Revised Protocol on Shared Watercourses provides a good example and specifically states:

“1. Any dispute arising between two or more member States from the interpretation or application of this Protocol which cannot be settled amicably shall be referred to the Tribunal for adjudication under Article 16 (1) of the Treaty of SADC.”

It appears from this example that treaty law relating to water resources specifically prohibits resort to force with regards to securing water resources.

However many of the over 500 international regimes governing freshwater resources, few have compulsory compliance systems. It remains to be seen whether conventional water law alone will be adequate to deal with the threats posed by changing climate patterns and increased consumption on a global scale. It does, however, pose a significant obstacle to the use of force in situations of scarcity.

Again we are struck by the interaction between water law and international principles and the important implication the elevation of ERU could have for all fields. Unfortunately, we are again struck by the inanity of denying ERU heightened status. Bringing ERU under the mandate of the UNSC would have provided an effective method for ensuring compliance with water law and IEL more generally.  It is even possible that allowing water jus cogens status could have been ideal opportunity to establish the universal jurisdiction so sought after by IEL.

However, lacking this power we are forced to rely on traditional measures for dispute resolution. It is generally agreed that three forms of peaceful dispute resolution have been identified, each with their strengths and weaknesses. Unilateral, bilateral ands multilateral dispute resolution all follow differing paths with varied results and eventualities characteristic of their nature.

The pursuit of unilateral measures with regard to shared water resources is not usually viewed as a favourable option for dispute resolution. It often has the effect of increasing tension and the level of conflict. It seldom solves disputes but rather sees the imposition of one state’s will over another. Power imbalances manifest in many ways but when the stronger nation is a lower riparian they often resort to aggression or military threat to achieve their ends. While it has the potential to produce speedy, if unfair, resolution, it is the fear of aggression and the weakening of state sovereignty that has led the international community to frown on unilateral actions.

Discussion is always a positive option when dealing with international interaction and bilateral solutions can be effectively implemented between friendly nations. However, it by no means guarantees a resolution or even a peaceful dispute process and failure to reach agreement can exacerbate already strained relationships. Bilateral negotiations can be time consuming and tend to encounter many obstacles. Never the less, bilateral relations at the very least signal an intention to cooperate in managing shared water resources.

Multi lateral resolution is seen by many commentators as the ideal way to ensure fair, participatory solutions to water disputes. The multilateral process can take many forms from third party mediators to settlement through an international forum bound by international jurisprudence. Wider involvement of the international community in water disputes is seen as resulting in more equitable resolutions and more likely to produce enduring compliance due to greater enforcement capability. However, it may also lead to confusion through over involvement. There remains no power capable of regulating water disputes or any form of standing water authority. A compliance procedure with enough strength to hold errant parties accountable is desperately needed yet none is forthcoming.

Compliance is an integral part of implementation and refers to a states’ behaviour in terms of conformity with its treaty obligations. A compliance system is a set of treaty rules or procedures that are aimed at assessing, regulating and ensuring state compliance. It is usually put in place to identify acts of non-compliance including states’ failure to comply with substantive norms or standards, or to fulfil procedural elements or institutional obligations.

Compliance depends on a states willingness or ability to meet certain treaty obligations. Thus a compliance regime must anticipate the reasons for state non-compliance and seek to provide a framework for overcoming these difficulties. Thus review is integral to ensure the maintenance of the integrity of a regime.

A response to problems with compliance that, in the first instance, is positive, forward-looking, non-confrontational and non-judicial and, is supplementary to, independent from, any dispute resolution regime. Compliance regimes are greatly enhanced by the elaboration of clear primary rules. These rules should be encompassed in legally binding documents but soft law measures add increased protection to watercourses. It seems that ERU fulfils these criteria perfectly and, if properly applied, could have greatly beneficial effects for transboundary water dispute resolution.

8.4 Clarity of Equitable and Reasonable Use:

It is sometimes argued that what constitutes a reasonable and equitable share is often not clear. Equal access can in no way be equated with equal use and differing capacities can have detrimental effects. A problem of divergence arises however, when we apply these northern formulated ideas to developing, arid regions as a lack of capacity transforms the ideal of “equitable and reasonable utilization” to an unattainable goal and creates the very disputes it seeks to prevent.

Thus, even when ERU is in use, nations will disagree on the proper standards of sharing and interpretations or application of the rule. Thus it seems that one of the greatest challenges facing the ERU regime is whether it can move past being a vague obligation of fairness to an articulate expression of the desire to equally apportion benefits. Some scholars argue that conflict cannot be avoided under ERU without a clear definition of its scope and the content of its standards.

In the UN convention, art 6 attempts to provide some clarity with a long list of relevant factors to be considered. Furthermore, the concepts of equity and reason are well established concepts in legal thought. The reasonable man test is the cornerstone the law of torts and has worked well for centuries. Similiarly, “equitable principles” form both the basis and end objective of delimitation in aspects of the law of the sea.

The statute of the ICJ calls on the court to settle some cases purely on the principles of “ex aequo et bono” which is translated to mean “of equity and conscience” and suggests a widely accepted definition of the term equity. Indeed, the concept of equity has been explored at length and is found to contain several elements.

Intergenerational equity establishes the idea that this equality can be passed down to future generations. The public trust doctrine further strengthens this approach by making the state the trustee or steward of the environment. In many instances, present water uses are prioritised over future uses, allowing present populations to exhaust non-renewable water resources at the expense of future generations.

It is interesting to note that equity in this context contains a geographical dimension. Although the disconnect between supply and demand has been tackled through increasingly technological water transfer mechanisms, every drop taken is a drop lost to another user in space. As a consequence engineered movements of waters are at their core a matter of redistribution of wealth with readily identifiable winners and losers.

Generally, there is a failure to properly appreciate the rule’s flexibility and amplitude. ERU is highly dynamic and therefore can adapt to changing perceptions or needs. It is not frozen in the predominant theory of a certain time period but can shift emphasis in responses to emerging challenges. Thus it fits the temporal dynamics of today’s legal structure, allowing emerging trends to be incorporated into the corpus of GIL. Offers an ideal administrative portal for would be regulators of commercial withdrawals but also perfect process for elevation to GIL.

Furthermore, ERU creates the ideal climate for meeting basic needs as it can be reasonably expected of governments to ensure that all individuals have access to sufficient quantities to meet their basic human rights requirements. ERU is directly concerned with allocation of water rights and implementing the rule would surely demand that all basic needs are catered for.

8.5 Conservation of water resources:

A largely unfounded criticism of the UN convention is that it fails to address environmental imperatives. However it is must be recognised that the goal of the convention is not to design an environmental conservation package but rather to define the framework whereby states can develop their water resources and to distribute rights by developing what it identifies as three key stages in the formulation of an integrated approach.

Attempts to strengthen the convention’s ecosystem orientation by including concepts such as sustainable development, precaution and protection of the environment in the general principles failed to materialise in the draft articles. Perhaps the imperative to evaluate water-related environmental issues was beyond the purview of the ILC charged with the progressive codification of international law. They chose instead to consider the possible range of uses and behaviours attributed to states and the possible pollution produced by each.

The normative development effort on the part of the ILC to introduce the ecosystem concept to international watercourse law has been admitted even by its critics. Indeed the convention and ERU are not aloof to environmental concerns, seeking to incorporate sustainable utilisation in a more legally meaningful way. The green provisions – arts 5, 6, 7, 20, 21 and 23 adequately reflect and implement these notions and not only allow but require states to attain optimal and sustainable utilization.

Some parties were of the opinion that sustainable use should be the overarching principle of the convention as it encompassed such notions as the precautionary principle and the necessary ecosystem protection. Interestingly, the final draft of the UN convention contained a reference to sustainable utilisation in article 5, thereby taking cognizance of the close relationship with equitable and reasonable use. It must be recognised that equitable utilisation and sustainable utilization can differ greatly as states can agree to share water equitably but unsustainably.

If international law is to meet the challenges facing ecosystems worldwide, sustainable development cannot remain on the periphery but must more to the conceptual core of international water law. Indeed the absence of sustainable development from the core of water law is a significant shortcoming. It is often queried whether it is necessary to introduce new concepts, often as vague as the ones already in use. There is much to be gained from harnessing the normative force carried by sustainable development derived from its inclusion in other more general treaties such as the New Delhi Declaration.

However, it should not be greatly problematic to place ERU into the wider context of sustainable development as reasonable utilisation dovetails well with sustainable utilisation, given our knowledge of the interdependent relationship between development and environment. The concept of sustainable development adds extra element of normative force and a place in the consciousness of the greater population. The greater access granted to the general population by incorporating well established concepts such as sustainability, equity and reason facilitates the interdisciplinary response so required by water related issues.

By incorporating sustainability into the equation, we afford the watercourse itself a greater level of protection while also providing its interface with the commercial world, something which human rights based approaches fail dismally to do. In addition, sustainability provides the maximum effect to the precautionary effort possible or could we attempt to get the maximum extent possible. Coupling sustainability with ERU provides us with an important tool for address non state actors by requiring a higher level of ethics from them. ERU can work on multiple levels, all the way from supra national organizations, to countries to corporations right down to individuals and it is possible that fines could be given for inequitable or unreasonabale use.

It is a viewpoint that is shared by many regional bodies around the planet as evidenced by the SADC revised protocol which states that measures that ‘…advance the sustainable, equitable and reasonable utilisation of the shared watercourses…’ must be adopted.

A rule of sustainable, equitable and reasonable utilization would also fulfil Brierly’s desire to annex aspects of domestic law to international law. The ILA dissenters to the Berlin Rules argue that it is unwarranted to apply the equitable and reasonable paradigm to the domestic level, which has operated well using an equity, efficiency and sustainability triad of rules. By integrating sustainability into the concept of ERU, it easily assimilates the domestic triad and is applicable at such a level. It is after all, unreasonable to use water inefficiently while we cannot deny the utility of applying internationally accepted standards at a national level. Given the internationalising nature of water usage it may be foolhardy not to attempt such action.

8.6 Conclusion:

ERU is an important emerging norm as it creates the ideal for climate for providing basic needs requirements and ensuring that all actors’ needs are catered for. Furthermore it generates a holistic approach to water management and ensures that consultative processes are followed throughout water negotiations. Therefore ERU builds legitimacy through participation, transparency and providing a tool to bring MNCs under the regulation of IEL.

ERU is a particularly strong norm as it incorporates the normative force of the no harm rule and the requirement of cooperation. Adding the well accepted notion of sustainable development would help to bring ERU to the fore of IEL and international law more generally. It is vital that IWL takes on a more proactive role in global governance and the pragmatic principle of ERU allows it to impose judicial force on the world population and lays the groundwork for creating a standing judiciary.

Making ERU jus cogens would allow it to become an agent of convergence and harmonization. It fits the criteria for a jus cogens norm well as it is accepted by the vast majority of states and seems to serve the contemporary interests of the global community. Further, it provides a means of penetrating the domestic legal setting and allowing IWL to institute regulation on this important scale.

Chief References:

• 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)
• Christine A Klein ‘On integrity: some considerations for water law’ (2005) Vol. 56:4 Alabama Law Review
• UN Convention on the Non-navigational uses of International Watercourses (Draft articles)
• ‘Geneva Strategy and Framework for monitoring compliance with agreements on transboundary waters’ (1999) United Nations Economic and Social council MP.WAT/2000/5 available at www.unece.org/env/water/publications/documents/guidance.pdf (accessed November 2007)
• SADC Revised protocol on Shared Watercourses Art 7 s 1
• ‘Geneva Strategy and Framework for monitoring compliance with agreements on transboundary waters’
• R B St. John The Bolivia-Chile-Peru Dispute in the Atacama Desert (Durham, United Kingdom: International Boundaries Research Unit 1994)
• P Wouters and S. Salzman, The Legal Response to the world’s water crisis: What legacy from The Hague? What future in Kyoto? (2001) available at www.africanwater.org/Documents/colorado_draft_4.doc (accessed March 2007)
• ‘ILA Berlin Conference 2004 – Water resources committee report dissenting opinion’
• A Hildering International law, sustainable development and water management (Delft: Eburon Publishers, 2004)

Tags: berlin rules, ILA, non-, non-navigational, relationships between treaties, status of water laws, un con, un convention on non-navigational uses of international watercourses

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