The following post, by Dr. Stephen C. McCaffrey, is the first in a series of essays related to the entering into force of the UN Watercourses Convention (see links to all of the essays here). Dr. McCaffrey is the Distinguished Professor of Law at the University of the Pacific McGeorge School of Law and former Special Rapporteur of the UN International Law Commission for the draft articles on the law of the non-navigational uses of international watercourses. Dr. McCaffrey can be contacted at: smccaffrey [at] pacific.edu.
With the thirty-fifth ratification by Vietnam on 19 May 2014, the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses will enter into force on 17 August 2014, ninety days after that ratification as provided by Article 36(1) of the Convention. While the pace of ratifications has been rather slow, after an initial burst of them by Middle Eastern States, it has picked up of late. The Convention’s entry into force is no doubt a landmark event for international water law, but it also augers well for the protection, use and management of international freshwater resources according to generally accepted principles. Despite the importance of the Convention’s entry into force, however, one should not lose sight of its significance as a reflection of basic principles of customary international law on the subject.
It is well known that the Convention was negotiated at United Nations Headquarters in 1996 and 1997 on the basis of a set of draft articles prepared by the International Law Commission over a twenty-year period (1974-1994). The Commission had been requested by the General Assembly in 1970 to study the topic with a view to its progressive development and codification. “Codification” in this context refers to the more precise formulation of rules of customary international law. The Commission’s draft articles were adopted by the negotiating governments with only minor – albeit in certain cases important – changes. The result is a treaty that would be expected to codify the most fundamental principles of the law of international watercourses. Those principles are generally believed to be equitable and reasonable utilization, prevention of significant harm, and prior notification of planned measures. They are expressed in specific provisions of the Convention, but a number of other provisions are supportive of or ancillary to them – such as the general obligation to cooperate, the obligation to exchange data and information on a regular basis and the obligation to protect and preserve aquatic ecosystems. To the extent that the 1997 Convention represents such a codification, the rules reflected in it would be binding on all states as customary international law whether or not the Convention was in force for a particular state.
Rather remarkably, almost immediately after the Convention was concluded the International Court of Justice began drawing heavily upon it in its judgments. Thus in the Gabčíkovo-Nagymaros Project case (Hungary/Slovakia) (ICJ 1997), decided four months after the Convention was concluded, the Court quoted from the Convention as support for principles it articulated and relied on what is perhaps the Convention’s most basic principle, equitable and reasonable utilization, calling it a “basic right” of all states sharing international watercourses. The same principle figured prominently in the case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (ICJ, 2010).
An aspect of the Convention’s scope that is sometimes not fully appreciated is that it covers both surface water and related groundwater. This is due to the way the term “watercourse” is defined, to mean “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole . . . .” (Article 2(a).) Since most of Earth’s groundwater interacts with surface water, this coverage is quite broad. And importantly so, since some 97 per cent of the fresh water available for human use is underground. Thus the Convention’s provisions would apply to shared aquifers that have some connection with surface water as well as aquifers that are not themselves shared but which have a hydraulic connection with shared surface water.
A final point raised by the entry into force of the 1997 Watercourses Convention concerns the relationship of that treaty to the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes. The latter agreement was originally envisaged and designed as a regional instrument covering states within the ECE. This is reflected in the rather low number of parties required for its entry into force (16, under Article 26(1)) and by its emphasis on avoidance of transboundary impact, defined as “any significant adverse effect on the environment” (Article 1(2)), an issue of particular concern in the generally well-watered and developed region. By virtue of an amendment to the ECE Convention that entered into force on 6 February 2013, the agreement is open to accession by states outside the UNECE region. Thus with the entry into force of the 1997 UN Convention, there are two treaties on shared freshwater resources that are open to participation by all states. This raises the question whether the two are compatible.
The answer, in my judgment, is yes. The two treaties have essentially the same object and purpose – cooperative use, management and protection of shared freshwater resources – even though they go about accomplishing it somewhat differently. The 1992 Convention contains far more detailed provisions on avoidance of transboundary impact and protection of international watercourses from pollution but these are complementary to the corresponding, more general, provisions of the 1997 Convention. Likewise, the emphasis of the 1997 Convention on equitable and reasonable utilization complements the 1992 Convention, which covers the principle concisely in the context of activities which cause or may cause transboundary impact (Article 2(2)(c)). The fact that one state with significant international watercourses, Uzbekistan, has already ratified both treaties suggests that governments, too, see a synergy between them.
In conclusion, the entry into force of the 1997 Watercourses Convention is a signal event in the development of international water law. The fact that it took a number of years to achieve this status should not be a concern. The Convention expresses basic principles of customary international law in the field in any event, many states who might otherwise have joined it already have their freshwater relations covered by specific agreements, and experience has shown that bringing general agreements like this into force can take time. But now that the Convention has achieved the required number of ratifications to bring it into force, parties will have a constitution for their water relations, something that may encourage non-parties to join, as well.