Introduction of the 1997 UNWC

At the beginning of the 20^th century, the non-navigational utilization of the fresh water resources began to become an ever more important international legal issue.⁶⁷³ Countless disputes on the utilization of natural freshwater resources took place against this background, which raised the state communities’ awareness of the importance of the freshwaters.⁶⁷⁴ The riparian countries of international watercourses therefore required relevant regulations for this issue, which also had to rely on general principles of international law.⁶⁷⁵ The General Assembly of the UN (GA) thus decided to adopt measures involving international water resources law, and on 8th December 1970, the GA entrusted the International Law Commission (ILC) with the task of

"tak[ing] up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification".⁶⁷⁶

The ILC’s work made the question of the equitable apportionment of freshwater the top priority. In 1991, the ILC presented a draft of “The law of the Non-Navigational Uses of International Watercourses”, which included 32 draft articles based on the principle of restricted territorial sovereignty.⁶⁷⁷ These draft articles were transmitted to governments for comments and observations.⁶⁷⁸ Then, in July of 1994, the ILC finished the second reading of the draft articles based on the comments and debates from the GA, and made some crucial changes for the 1991 draft articles. For instance, the ILC added another article, Article 33, to regulate the settlement of disputes and fundamentally amend Article 7.⁶⁷⁹

673 Attila Tanzi and Maurizio Arcari, The United Nations Convention on the Law of International Watercourses (Netherlands, 1st, Kluwer Law International, 2001) 6-7.

674 Ibid.

675 Esther Schroeder-Wildberg, ‘The 1997 International Watercourses Convention-Background and Negotiations’ (2002) Technical University of Berlin Institute for Landscape and Environmental Planning: Working Paper on Management in Environmental Planning 4/2002, 16 <http://www.planen-bauen-umwelt.tu-berlin.de/fileadmin/a0731/uploads/publikationen/workingpapers/wp00402.pdf>

accessed 29 September 2016.

676 Schroeder-Wildberg (n 675) 16.

677 Tanzi and Arcari (n 673) 40-41.

678 Tanzi and Arcari (n 673) 41.

679 Ibid.

Subsequently, the Sixth Committee, which is one of the 6 main committees of the GA and the primary forum for dealing with legal questions, took over this task from the ILC. Thereupon, it convened as a working group to elaborate a framework convention based on the draft articles of the ILC as well as the written comments and observations of the States.⁶⁸⁰ After two rounds of negotiations, the Sixth Committee submitted the final version of the UNWC, which was adopted on 21st May 1997.

4.1.1.2. Contents

The UNWC consists of a preamble, 37 articles and an annex. The 37 articles are divided into 7 parts. Former 33 of these are regarded as substantive content, while the other 4 articles are procedural articles. ⁶⁸¹

The Preamble expresses the aim of the UNWC, and points out that the UNWC is a framework convention.⁶⁸² The first 4 Articles constitute Part I, in which the scope of this convention, the definition of the watercourse and the watercourse States is laid out. Article 3 states that this Convention will not affect other existing regional watercourse agreements. Article 4 expresses the right of every state to participate in the negotiation of regional agreements.⁶⁸³ Part II contains general principles of the UNWC, which are the most important fundament for this Convention. These principles include: equitable and reasonable utilization and participation, the obligation not to cause significant harm, the general obligation to cooperate, the regular exchange of data and information, and the stipulation that “no use of an international watercourse enjoys inherent priority over other uses”.⁶⁸⁴ Part III provides a procedure for combatting possible negative effects of the watercourse states’

planned measures on a watercourse or other riparian countries. Article 11 regulates information exchange in the context of planned measures. Notification in the context of planned measures with possible adverse effects is stipulated by Article 12. Articles 13-18 provide periods for replies to notifications, and also introduce regulations and procedures given absence. The notifying state must cooperate and interrupt the implementation of the planned measures during the reply period for the notification.

680 Schroeder-Wildberg (n 675) 18.

681 McCaffrey (n 160) 302.

682 The 1997 UNWC (n 169) Preambel.

683 The 1997 UNWC (n 169) art 1-4.

684 The 1997UNWC (n 169) art 5-10.

Article 19 establishes a procedure for urgent implementation of planned measures.⁶⁸⁵ The major obligations of environmental protection have been elaborated in Part IV, at the beginning of which Article 20 explicitly expresses that “the watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of international watercourses”.⁶⁸⁶ Articles 21-23 concern themselves with issues of pollution, alien and new species, and the marine environment. Article 24 dictates that the international watercourses be managed jointly, and includes a plan for their sustainable development. Article 25 stipulates cooperation that the need for regulating the watercourse’s flow arises. Finally, Article 26 requires each state has to ensure the safe operation and maintenance of its installations, facilities and other works related to an international watercourse. Part V, then, consists of Articles 27 and 28, which deal with harmful conditions and emergency situations. Part VI comprises Articles 29 to 33 and provides miscellaneous provisions for international watercourses and installations in times of armed conflict, indirect procedures, data and information vital to national defense or security, non-discrimination, as well as a very important and detailed provision for the settlement of disputes (Article 33).⁶⁸⁷ Part VII is the final clause and contains Articles 34 to 37. Article 34 specifies the time of the opening and signature of the Convention. The Secretary General is accounted the role of “depository for the instruments of ratification, acceptance, approval or accession” in Article 35. Article 36 dictates the Convention’s entry into force, and the final article stipulates the different languages into which the Convention must be translated.⁶⁸⁸ Lastly, the Annex lists steps to be taken in emergencies or during times of conflict, though this may only take place given a consensus is arrived at between the conflicting parties and the dispute is submitted to arbitration.⁶⁸⁹

4.1.1.3. The Most Contentious Articles: Articles 5 and 7

The most contentious articles of the Convention are Articles 5 and 7 from the part on general principles.

685 The 1997 UNWC (n 169) art 11-19.

686 The 1997 UNWC (n 169) art 20.

687 The 1997 UNWC (n 169) art 29-33.

688 The 1997 UNWC (n 169) art 34-37.

689 The 1997 UNWC (n 169) Annex.

Article 5 consists of two paragraphs and describes the principle of “equitable and reasonable utilization and participation”. The first paragraph introduces the terms

“equitable” and “reasonable”, and states that water resources should be utilized in an

“optimal and sustainable” manner based on the aim of environmental protection.⁶⁹⁰ The word “optimal” has been discussed extensively to its different connotations in the respective countries. The word “sustainable” has been a topic of discussion as well, for similar reasons. The second paragraph discusses the “use, development and protection” of an international watercourse basin, with a focus on riparian states’

rights and duties, and introduces the idea of watercourse protection based on the common management of riparian countries as well.⁶⁹¹ Unfortunately, this idea also produced a certain amount of ambiguity, namely that the extent of the protection pertains merely to the watercourse itself and not to the general ecology of the river basin.⁶⁹²

Article 7 expresses the principle of “not [causing] significant harm”. This is embodied in its first paragraph, which states specifically that all riparian states shall “take all appropriate measures to prevent the causing of significant harm to other watercourse states”.⁶⁹³ The second paragraph describes the possibility of acceptance of currently occurring significant harm. Based on this situation, the harming state should “take all appropriate measures ... to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation”.⁶⁹⁴

The contention between Articles 5 and 7 is that “equitable and reasonable utilization”

and the “obligation not to cause significant harm” cannot be approached simultaneously.⁶⁹⁵ The core point of this contention is whether equitable utilization

690 Peter Beaumont, ‘The 1997 UN Convention on the Law of Non- navigational Uses of International Watercourses: Its Strengths and Weaknesses from a Water Management Perspective and the Need for New Workable Guidelines’ (2000) 16 Water Resources Development 475, 480.

691 P. W. Birnie and A. E. Boyle, International Law and the Environment (US, 2nd, Oxford University Press, 2002) 305.

692 Beaumont (n 690) 481.

693 The 1997 UNWC (n 169) art 7.

694 The 1997 UNWC (n 169) art 7.

695 Beaumont (n 690) 482.

should prevail over the “no harm” obligation.⁶⁹⁶ The solution to this debate is reflected in the second paragraph of Article 7, which gives precedence to equitable utilization over the doctrine of “no harm”. This paragraph implicitly acknowledges that harm may be caused without the existence of any responsibility on the part of the harming state.⁶⁹⁷ It also indicates that significant harm may have to be endured by a riparian state on account of a series of mitigation clauses and the phrase “having due regard for the provisions of Articles 5 and 6."⁶⁹⁸ Article 10 also makes reference to these two articles, and additionally states that conflicts based on riparian states’ different uses will not be solved on the basis of Article 7 alone, but rather through “package”

articles stipulating both the principle of equitable and reasonable utilization and that of the “no harm” obligation.⁶⁹⁹ According to the case of Gabcikovo-Nagymaros, this quandary can be solved by cooperation and compromise on the part of the parties involved, not merely “by rigid insistence on rules of law”.⁷⁰⁰

4.1.1.4. Functions of the 1997 UNWC

The 1997 UNWC has many important functions reflected in a plethora of different aspects. In addition to the functions it originally fulfilled, its entry into force brought about additional functions as well. As a recognized authoritative codification of customary international water law, some of its content could have impact on not only its parties but also to non-parties.⁷⁰¹

Firstly, the Convention inspired negotiations on watercourse agreements. The Convention includes a series of standards, such as the principle of equitable and reasonable use and participation, the prevention of harm, the duty to protect the ecosystem of international watercourses, the procedural rules on planned measures, and dispute settlement mechanisms. These standards can be applied and adjusted to unique characteristics of an international watercourse and to the needs of basin

696 Stephen C. McCaffrey, ‘An overview of the UN Convention on the Law of the Non-Navigational Uses of International Watercourses’ (2000) 20 J. Land Resources & Envtl. L. 57, 63.

697 Stephen C. McCaffrey, ‘The Convention Enters Into Force’ (2014) 44/4 Environmental Policy and Law 351, 352-353.

698 McCaffrey (n 696) 64.

699 Ibid.

700 Ibid.

701 Flavia Rocha Loures and Alistair Rieu-Clarke (eds), The UN Watercourse Convention in Force:

Strengthening International Law for Transboundary Water Management (UK, 1st, Routledge, 2013) 64.

states.⁷⁰² The scope of this function consists of two aspects. Firstly, it can foster the adoption of new legal instruments for instances where has no existing treaties or where existing treaties must be supplemented. Secondly, it is an aid to the revision of existing treaties that are “outdated, weak or inequitable”.⁷⁰³ Given the entry into force of this Convention, it is likely that it will have a wider and deeper influence on the process of negotiating treaties between the riparian states.⁷⁰⁴ On the one hand, the Convention’s entry into force can enhance the stakeholders’ awareness of this Convention; on the other, although it has only been accepted by 36 member states, the Convention can still be a point of departure for negotiations on international watercourses issues.⁷⁰⁵ Additionally, the entry into force of this Convention also establishes a tendency towards consistency for watercourse agreements between the riparian states,⁷⁰⁶ because the Convention can provide “a certain degree of stability to the process of creating regional agreements”.⁷⁰⁷

Secondly, the Convention can aid parties in the application and interpretation of watercourse agreements;⁷⁰⁸ this is because a watercourse agreement is not isolated, but rather is supported and limited by (as well as tested against) a series of other international standards.⁷⁰⁹ Therefore, various developments in the law may be related to the treaty’s interpretation, and the principles and rules of a larger legal system can make the conventional law of a watercourse more effective.⁷¹⁰ The UNWC is also a source of international standards, and plays an important role especially in the interpretation of contentious provisions, as well as in the application of outdated treaties that require improvement given modern developments. “It has provided a basic framework for arbitral and judicial decision-making”, and its entry into force can enhance its authority, raise the public’s awareness of its contents, and also

702 Loures and Rieu-Clarke (eds) (n 701) 57.

703 Ibid.

704 Loures and Rieu-Clarke (eds) (n 701) 58.

705 Ibid.

706 Loures and Rieu-Clarke (eds) (n 701) 59.

707 Wildberg (n 660) 7.

708 Loures and Rieu-Clarke (eds) (n 701) 60.

709 Albert Henry Garretson, Robert D Hayton, Cecil J Olmstead, Richard Baxter and Ludwick A Teclaff, The Law of International Drainage Basins (New York, 1st, Oceana Publications, 1967) 834-836.

710 Loures and Rieu-Clarke (eds) (n 701) 60.

develop knowledge relevant to its content and functions. ⁷¹¹ Thanks to its entry into force, the possibility for states and judges to invoke this Convention as a basis for supporting the interpretation and application of existing treaties may also increase.

The third function of the UNWC is that it can govern interstate relations in the absence of applicable agreements.⁷¹² The Convention contains a lot of principles that are reflections of customary international law, which are also binding for all states.⁷¹³ When there is no other applicable watercourse agreement for an international watercourse, the Convention can serve as a binding legal basis for deciding the rights and duties of the watercourse states that are parties to it.⁷¹⁴ Substantively, the Convention provides a common stage to govern relations among parties, and can, to some extent, prevent disputes. Procedurally, it states the importance of the consideration of mutual benefits and good faith by cooperation.⁷¹⁵ In addition, it also points out, by general rule, that no watercourse state can ignore requests from other watercourse states to enter into consultation.⁷¹⁶ Given the fact that 60 percent of the world’s trans-boundary watersheds have not been regulated by agreements, the Convention could play a “regulatory” role in situations where watercourse states have become parties to the Convention but cannot arrive at a unanimous decision following negotiation, nor (pending entry into force) prolong negotiations on one or more specific treaties. In summary, the Convention covers three aspects: Firstly, it can govern interstate relations in the absence of a watercourse agreement. Secondly, it can provide a framework for the trans-boundary watershed, to which all riparian countries are parties. Thirdly, it can be a supplement to existing agreements when situations occur that are not governed by existing agreements.⁷¹⁷

The fourth function is that the Convention can provide a widely accepted, general, authoritative and effective foundation for the codification of rules as they evolve, with a focus on governing the trans-boundary watersheds.⁷¹⁸ The premise of this function is

711 Ibid.

712 Ibid.

713 Kaczorowska-Ireland (n 196) 31.

714 Loures and Rieu-Clarke (eds) (n 701) 61.

715 Ibid.

716 Ibid.

717 Loures and Rieu-Clarke (eds) (n 701) 61-62.

718 Loures and Rieu-Clarke (eds) (n 701) 62.

that watercourse states are already parties to the Convention, and have also agreed on the procedures for the adoption of future protocols, amendments and guidelines.⁷¹⁹ Additionally, the Convention can also contribute to the development of relevant areas, for instance promoting public participation in trans-boundary water negotiations.

Finally, the Convention can also act as an “official world forum” for policy coordination, knowledge and information sharing, experience and practice exchange in the field of management of the water resources of international watercourses.

Fifthly, the UNWC can also foster the implementation of other multilateral environmental conventions.⁷²⁰ It can add its value to other regulatory frameworks, and help to improve the implementation of goals under other environmental conventions formulated based on cooperation between riparian countries. This Convention can also enable its parties “to engage with implementing bodies under other related environmental agreements”⁷²¹, as well as build synergies to avoid repetition and coordinate implementation efforts.⁷²² For example, the watercourses states that are party to both the UNWC and the CBD can establish cooperative efforts for ecosystem protection based on the relationship between water resource management and the ecosystem approach.⁷²³

Last but not the least, the UNWC could also bring some legal and political effects to non-parties, because its entrance into force makes the non-parties taking it more seriously as a codification of customary international water law.⁷²⁴ Customary international law consists of two elements: one is “a relatedly uniform and constant state practice”, and another element is “the subjective conviction of a State that it is legally bound to behave in a particular way in respect of particular situation, or the acceptance of the practice as law by a State”.⁷²⁵ Customary international law can be general and regional, and the general customary international law is binding upon the international community.⁷²⁶ But regional customary international law can supplement

719 Ibid.

720 Loures and Rieu-Clarke (eds) (n 701) 63.

721 Ibid.

722 Ibid.

723 ibid 63-64.

724 McCaffrey (n 697) 355.

725 Kaczorowska-Ireland (n 196) 30.

726 Kaczorowska-Ireland (n 196) 31.

or derogate the general one.⁷²⁷ The basic knowledge of the customary international law can also prove that the effects of the 1997 UNWC can broaden to non-parties, based on some situations. There are two situations that a treaty can be effective to non-parties. One situation is some of its contents have already been recognized as customary international law. Another situation is that the non-parties have showed their consent by expression or implication to the content of that treaty.⁷²⁸ As an authoritative codification of international customary law, the Convention can have an important influence on state practice. Except situations mentioned above, the Convention’s entry into force would enhance its legal and political authority, thereby allowing it to have a more effective and persuasive force on non-parties. ⁷²⁹ In practice, these effects are reflected in three aspects. First of all, the UNWC could play act as “a complementary, mutually reinforcing legal framework” for non-parties’ negotiations on international watercourse uses.⁷³⁰ Moreover, it would also have an impact on non-parties’ interpretation and application of watercourse agreements and related customary international law. ⁷³¹ Finally, the Convention would accelerate the process of consolidating complementary provisions as part of international custom, and this process would also strengthen the binding effect of the Convention on non-parties.⁷³² In summary, the UNWC carries out a series of functions reflected not only by its parties, but by non-parties as well. Its entry into force is a vital step towards its further development，which would enhance its legal and political authority. In the future, it will continue to play a consistently important role as one of the most significant authoritative manifestations of customary international law, and a framework in the style of which other bilateral and multilateral agreements can be formulated and interpreted.⁷³³

727 Ibid.

728 Kaczorowska-Ireland (n 196) 104-106.

729 Loures and Rieu-Clarke (eds) (n 701) 64.

730 Ibid.

731 Ibid.

732 Loures and Rieu-Clarke (eds) (n 701) 65.

733 Gabriel Eckstein (ed), ‘Specially invited opinions and research report of the International Water Law Project: global perspectives on the entry into force of the UN Watercourses Convention 2014: part two’ (2015) 17 Water Policy 162, 183.

Im Dokument The Analysis of the International Legal Water Regime of the Mekong River Basin (Seite 158-167)