The United Nations Convention on the Law of International Watercourses : A Framework for Sharing

Problems relating to the non-navigational uses of international watercourses have the capacity to be among the most serious causes of international conflicts in the new century. The Convention adopted by the UN General Assembly on 21 May 1997 is the first comprehensive attempt to provide at the universal level a coherent set of rules for the avoidance, management and settlement of such conflicts. This book gives a brief history of the codification process leading to the adoption of the Convention and considers the conflicting approaches to the subject that have been taken over the years. It examines the Convention as future treaty law and considers its impact on customary law putting it in the context of existing relevant international instruments. It analyses the substantive principles of equitable utilisation and of no-harm, on the one hand, and the procedural obligations, on the other, and emphasises their mutual complementarity. The specific rules on the environmental protection of watercourses are given separate consideration underlining the indivisibility of water quality and water quantity issues, while the dispute settlement provisions set out in the Convention are studied with special emphasis on negotiated settlement as their ultimate aim. This book will be a compulsory tool for law makers, negotiators of future watercourse agreements and water law practitioners, as well as a required reading for students of the international law of shared natural resources. Title Page Copyright Page Preface Table of Contents Acknowledgements Abbreviations Foreword Chapter 1 Theoretical Background and Genesis of the Convention 1. Introduction 2. Transboundary Water Resources: The Problem and its Evolution 3. The Evolving International Law of International Watercourses 3.1. From Absolute Claims to Limited Sovereignty 3.2. From Coexistence to Procedural Co-operation 3.3. Emerging Trends and Paradigms in the Regulation of International Watercourses 4. Special Features of Law-making in the Field of International Watercourses 4.1. The Fragmentation of the Law of International Watercourses and the Difficulties of its Codification 4.2. The Need for Codification of the General Rules of the Law of International Watercourses 4.3. The Conventional Format of Codification 4.4. The Contribution of Private Law Bodies to the Codification of the Law of International Watercourses 5. The Evolution and Development of the Codification Process within the United Nations 5.1. General Assembly Resolution 2669(XXV) 5.2. The ILC Work 5.2.1. Phase I (1974-1976): The general outline of the draft 5.2.2. Phase II (1977-1984): The shaping of the general principles 5.2.3. Phase III (1985-1991): The completion of the first reading of the draft 5.2.4. Phase IV (1993-1994): The adoption on second reading of the draft 5.3. The Working Group of the General Assembly 5.3.1. The mandate of the WG: General Assembly Resolution 49/52 5.3.2. The first session of the WG 5.3.3. The second session of the WG and the adoption of the text of the Convention Chapter 2 Scope of the Convention 1. The Scope Ratione Materiae (Articles 1 and 2) 1.1. Non-navigational Uses 1.1.1. The inclusive sense of the term 1.1.2. The exclusive sense of the term 1.1.3. Fishing 1.2. Protection, Preservation and Management and the Interconnections between Water Quantity and Water Quality Regulation 1.3. The Watercourse System, Drainage Basin and Ecosystemic Approaches 1.3.1. Cross-media harm 1.3.2. Groundwaters 1.4. The Convention and the Protection of Watercourses in Time of Armed Conflict 1.4.1. The relationship between belligerent States and States not parties to the conflict 1.4.2. The relationship between belligerent States 2. The Scope Ratione Personarum (Articles 2 and 4) 2.1. The Problem ofthe 'Affected State' 2.2. The Human Rights Dimension of the Basic Provisions of the Convention 3. The Relation of the Convention to Special Watercourse Agreements (Article 3) 3.1. Relation to Pre-existing Agreements 3.2. Relation to Future Agreements 3.3. One Further Remark on the Normative Function of the Convention 4. The Relation of the Convention to Customary Law Chapter 3 The Substantive Principles of the Convention 1. The Equitable Utilisation Principle (Articles 5, 6 and 10) 1.1. Preliminary Remarks on Equitable Utilisation 1.2. Equitable Utilisation and Equitable Sharing (Article 5(1), first sentence) 1.3. The Goals ofEquitable Utilisation (Article 5(1), second sentence) 1.3.1. Equitable utilisation and the optimal utilisation of international watercourses 1.3.2. Equitable utilisation, sustainable use and the protection of international watercourses 1.4. Equitable Utilisation and Equitable Participation (Article 5(2)) 1.5. Factors Relevant to Equitable Utilisation (Article 6) 1.5.1. The scope of Article 6 (Article 6(1) and (2)) 1.5.2. The (lack of) hierarchy among relevant factors (Article 6(3)) 1.5.3. The list of factors in Article 6(1): general features 1.5.4. The individual factors listed in Article 6(1): natural factors vs. functional factors 1.5.4.1. Natural factors (Article 6(1)(a)) 1.5.4.2. Functional factors (Article 6(1)(b)-(g)) 1.6. The Relationship between Different Kinds of Uses (Article 10) 1.6.1. The absence of priority among uses and the issue of 'local' custom (Article 10(1)) 1.6.2. The conflict between different uses and the issue of vital human rights (Article 10(2)) 2. The Obligation Not to Cause Significant Harm (Article 7) 2.1. Preliminary Remarks 2.2. A Mitigated No Substantial Harm Principle 2.2.1. The kind of harm and the 'significance threshold' covered by the obligation of prevention 2.2.2. A due diligence obligation of prevention 2.3. The Consequences of the Occurrence of Significant Harm 2.3.1. Compensation (Articles 7(2), 11, 17 and 32) 2.3.2. Compensation, the 'Polluter-Pays' principle and the right of equal access to national remedies 2.4. Article 7 and State Responsibility Issues 3. The Relationship Between the Equitable Utilisation Principle and the 'No Harm' Rule Chapter 4 The Obligation of Co-operation and its Procedural Applications 1. The General Obligation to Co-operate (Article 8) 1.1. Institutional Co-operation (Articles 8(2) and 24) 2. Co-operation and the Principles of Equitable Utilisation and No Harm (Articles 5-8) 3. Co-operation and the Regular Exchange of Data and Information (Article 9) 3.1. Limitations to the Obligation to Exchange Data and Information (Article 31) 4. Co-operation and Planned Measures (Articles 11-19) 4.1. The Obligation of Notification (Article 12) 4.1.1. Notification and environmental impact assessment (Article 12) 4.1.2. Notification upon request (Article 18) 4.2. Procedures Subsequent to Notification (Articles 13, 14 and 15) 4.3. Some Concluding Remarks on the Notification Procedure 5. Co-operation and Management (Article 24) 6. Co-operation and the Regulation ofthe Flow (Article 25) 7. Co-operation and the Maintenance and Protection of Installations (Article 26(2)) 8. Co-operation and Harmful Conditions and Emergency Situations (Articles 27 and 28) Chapter 5 The Environmental Protection of International Watercourses 1. Introductory Remarks 1.1. Environmental Protection in the Travaux Préparatoires 1.2. Articles 20-23 and their Relationship with the Provisions of Part XII of UNCLOS 1.3. Articles 20-23 and Co-operation 2. The Protection and Preservation of Ecosystems (Article 20) 2.1. The Concept of Ecosystem of International Watercourses 2.2. The Scope of the Obligation of Protection and Preservation 3. The Prevention, Control and Reduction of Pollution (Article 21) 3.1. The Definition ofPollution (Article 21(1)) 3.2. The Substantive Obligations of States Towards Pollution (Article 21(2)) 3.2.1. The issue of existing and new pollution 3.2.2. The issue of due diligence in the obligation to prevent, reduce and control pollution and its relation to the principle of equitable utilisation 3.2.3. The harmonisation of States' policies in respect to pollution prevention, reduction and control 3.3. Consultations on Water Quality Objectives, Techniques and Standards to Prevent, Reduce and Control Pollution 4. The Introduction of Alien or New Species (Article 22) 5. The Protection of the Marine Environment (Article 23) Chapter 6 The Settlement of Disputes 1. Introductory Remarks 2. The Debate in the Working Group Concerning Dispute Settlement 3. Article 33 of the Convention 3.1. Fact-Finding 3.2. An 'Integrated' Approach to Dispute Avoidance and Settlement Procedures 3.2.1. Extra-judicial means 3.2.1.1. The role ofthe World Bank 3.2.1.2. The extra-arbitral services of the Permanent Court of Arbitration 3.2.2. Judicial and arbitral means of dispute resolution 3.2.2.1. Arbitration under the Optional Rules of the Permanent Court of Arbitration 3.3. A Remark on the Process of Adoption of Article 33 4. Compatibility between Judicial and Negotiated Settlement in the Water Law Process Conclusions Appendix I Text of the Convention and Statements of Understanding Pertaining to the Text of the Convention Appendix 2 Table of Ratifications and Declarations Index to Articles Index to Authors General Index Preface / Robert Rosenstock -- Ch. 1. Theoretical Background And Genesis Of The Convention. 1. Introduction. 2. Transboundary Water Resources: The Problem And Its Evolution. 3. The Evolving International Law Of International Watercourses. 4. Special Features Of Law-making In The Field Of International Watercourses. 5. The Evolution And Development Of The Codification Process Within The United Nations -- Ch. 2. Scope Of The Convention. 1. The Scope Ratione Materiae (articles 1 And 2). 2. The Scope Ratione Personarum (articles 2 And 4). 3. The Relation Of The Convention To Special Watercourse. 4. The Relation Of The Convention To Customary Law -- Ch. 3. The Substantive Principles Of The Convention. 1. The Equitable Utilisation Principle (articles 5, 6 And 10). 2. The Obligation Not On Cause Significant Harm (article 7). 3. The Relationship Between The Equitable Utilisation Principle And The 'no Harm' Rule -- Ch. 4. The Obligation Of Co-operation And Its Procedural Applications. 1. The General Obligation To Co-operate (article 8). 2. Co-operation And The Principles Of Equitable Utilisation And No Harm (articles 5-8). 3. Co-operation And The Regular Exchange Of Data And Information (article 9). 4. Co-operation And Planned Measures (articles 11-19). 5. Co-operation And Management (article 24). 6. Co-operation And The Regulation Of The Flow (article 25). 7. Co-operation And The Maintenance And Protection Of Installations (article 26(2)). 8. Co-operation And Harmful Conditions And Emergency Situations (articles 27 And 28) -- Ch. 5. The Environmental Protection Of International Watercourses. 1. Introductory Remarks. 2. The Protection And Preservation Of Ecosystems (article 20). 3. The Prevention, Control And Reduction Of Pollution (article 21). 4. The Introduction Of Alien Or New Species (article 23). 5. The Protection Of The Marine Environment (article 23) -- Ch. 6. The Settlement Of Disputes. 1. Introductory Remarks. 2. The Debate In The Working Group Concerning Dispute Settlement. 3. Article 33 Of The Convention. 4. Compatibility Between Judicial And Negotiated Settlement In The Water Law Process. App. 1. Text Of The Convention And Statements Of Understanding Pertaining To The Text Of The Convention -- App. 2. Table Of Ratifications And Declarations. By Attila Tanzi And Maurizio Arcari. Includes Bibliographical References And Index.