Untitled

TRANSFORMING POTENTIAL CONFLICT INTO COOPERATION
POTENTIAL:
The Role of International Water Law
Sergei Vinogradov, Patricia Wouters, and Patricia Jones
University of Dundee, UK
SC-2003/WS/67
The designations employed and the presentation of material throughout this
publication do not imply the expression of any opinion whatsoever on the part of
UNESCO concerning the legal status of any country, territory, city or area or of its
authorities, or concerning the delimitation of its frontiers or boundaries.
The authors are responsible for the choice and the presentation of the facts contained
in this book and for the opinions expressed therein, which are not necessarily those of
UNESCO and do not commit the Organization.
ACKNOWLEDGMENT
This report is a contribution from UNESCO’s International Hydrological Programme to
the World Water Assessment Programme. It was prepared within the framework of
the joint UNESCO–Green Cross International project entitled “From Potential Conflict
to Cooperation Potential (PCCP): Water for Peace,” and was made possible by the
generous financial assistance of the Japanese government.
CONTENTS
Summary 1
Part One: Introduction 2

1. Introduction 2
2. The Conceptual Approach: The "PCCP Cycle" 2
3. The PCCP Cycle in Practice: The Lake Lanoux Case 4
3.1. Phase I: The Legal Context 4
3.2. Phase II: From Conflict to Cooperation 5
3.3. Phase III: The New Agreement 7
3.4. Phase IV: Implementation 7
4. Lessons Learned and Issues for Consideration 7
Part Two: The Role of International Water Law in Dispute

Prevention and Resolution 9
1. International Law: What It Is and How It Works 9
2. Sources of International Law 9
3. Law of Treaties 11
4. International Water Law 12
5. Customary Rules of International Water Law 12
6. Judicial Decisions 13
7. Treaties 14
8. The 1997 UN International Watercourses Convention 15
8.1. Scope 16
8.2. Substantive Rules 17
8.3. Procedural Rules 19
8.4. Institutional Mechanisms 20
8.5. Dispute Settlement 20
9. Summary 21
Part Three: Transforming Conflict into Agreement:

Means and Mechanisms 22
1. Water Conflicts: An Overview 22
1.1. Conflict Between Existing Uses 22
1.2. Conflict Between Existing and New Uses (Planned Measures) 24
1.3. Conflict Over Future Uses 24
1.4. Conflict as a Result of Emergency Situations 25
2. "Water Conflicts" and "Water Disputes": Legal Definition 25
3. Transforming Conflict into Cooperation: Mechanisms 26
3.1 Negotiation 27
3.2. Good Offices and Mediation 28
3.3. Inquiry and Fact-finding 29
3.4. Conciliation 30
3.5. Institutional Mechanisms 31
3.6. Arbitration 31
3.6.1. Overview 31
3.6.2. The Permanent Court of Arbitration 32
3.7. Adjudication 33
3.7.1. Overview 33
3.7.2. The International Court of Justice 34
4. Case Studies 35
4.1. The River Oder Case 35
4.2. The River Meuse Case 37
4.3. The Danube Case 39
5. Conclusions 43
Part Four: Designing and Implementing the Agreement 45

1. Introduction 45
2. Drafting "Good" Agreements 45
3. Scope 46
3.1. Overview 46
3.2. Treaty Practice 47
3.3. Summary 49
4. Substantive Rules 50
4.1 Overview 50
4.3. Summary 53
5. Procedural Rules 54
5.1. Overview 54
5.3. Summary 56
6. Institutional Mechanisms 57
6.1. Overview 57
6.3. Summary 61
7. Dispute Avoidance and Resolution 62
7.1. Overview 62
7.3. Summary 65
8. Implementation and Compliance 66
8.1. Overview 66
8.2. New Approach to Ensuring Implementation: Compliance Control 67
8.3. Elements of Compliance Control Systems 68
8.4. Summary 69
9. Conclusion 70
Part Five: Lessons Learned and Checklist of Issues 72

1. Overview 72
2. Lessons Learned 72
3. PCCP Checklist 73
4. Conclusions 75
Annex I: Relevant Factors Matrix 76

Notes on the KaR Research Project 77
Transboundary Water Resources Management 77
Annex II: The 1997 UN Watercourses Convention 79
Selected Bibliography 101

LIST OF ABBREVIATIONS
BWT Canadian–US Boundary Waters Treaty
COP Conference of the parties
CTS Consolidated Treaty Series
ICJ International Court of Justice
IDI L’Institut de Droit International
IJC International Joint Commission (Canada–USA)
ILA International Law Association
ILC United Nations International Law Commission
ILM International Legal Materials
ILR International Law Reports
IWC International Watercourses
LNTS League of Nations Treaty Series
MOP Meeting of the parties
NRJ Natural Resources Journal
PCA Permanent Court of Arbitration
PCCP Potential Conflict–Cooperation Potential
PCIJ Permanent Court of International Justice
RIAA United Nations Reports of International Arbitral Awards
SADC Southern African Development Community
UN United Nations
UN GA United Nations General Assembly
UNTS United Nations Treaty Series
UN ECE United Nations Economic Commission for Europe
THE ROLE OF INTERNATIONAL WATER LAW
International river basins cover more than half of the land’s surface. With close to 300
major watercourses shared by two or more states and an ever-increasing demand on
the world’s diminishing water resources, there may be some justification in the
assertion by certain commentators that “water wars” are imminent. The UN forecasts
that more than half of the world’s population will suffer direct consequences of water
scarcity if the current development patterns continue. The situation is particularly
critical in developing countries, leading the world’s governments to commit
themselves to “halve by 2015, the proportion of people without access to safe
drinking water and basic sanitation,” and also to “develop integrated water resources
management and water efficiency plans by 2005” (UN Summit on Development,
Johannesburg, 2002). Commendable as these plans may be, what solutions will states
find in their competition over shared water resources? This is particularly crucial for
states that depend on water supplies that cross their national borders.
This study discusses the relevance and role of international water law in the
promotion of cooperation over shared transboundary watercourses. With its focus on
actual case studies and through examination of contemporary state practice and
detailed analysis of the 1997 UN Watercourses Convention, this work aims to provide
water resource experts from all disciplines with an overview of the rules of
international law that govern interstate relations over water.
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PART ONE: INTRODUCTION
1. INTRODUCTION
International river basins cover more than half of the land’s surface. With nearly 300
major watercourses shared by two or more states and ever-increasing demand on the
world’s diminishing water resources, there may be some justification in the assertion
by certain commentators that “water wars” are imminent in the near future. The UN
forecasts that more than half of the world’s population will suffer the direct
consequences of water scarcity if current development patterns continue (UNEP,
2002). The situation is particularly critical in developing countries, which has provoked
collective action on the part of national governments, leading them to commit to
“halve by 2015, the proportion of people without access to safe drinking water and
basic sanitation,” and also to “develop integrated water resources management and
water efficiency plans by 2005” (UN, 2002). Commendable as these plans may be,
what solutions will states find in their competition over shared water resources? This
is especially critical for states that depend on water supplies that cross their national
borders.
This study discusses the relevance and role of international water law in the
promotion of cooperation over shared transboundary watercourses. It is aimed at
water resource professionals and seeks to make more accessible the rules and
mechanisms of international law that govern interstate relations over water.
2. THE CONCEPTUAL APPROACH: THE “PCCP CYCLE”

In line with the central theme of the UNESCO WWAP project, this legal report focuses
on the PCCP cycle: how potential conflicts over water are transformed into
cooperation potential. From a legal perspective, the PCCP cycle has four identifiable
phases, which are connected and reiterative:
ł Phase I. The legal context (the rules of international law that apply to the conflict
and its resolution).
ł Phase II. From conflict to cooperation (the means used to transform the conflict
into a cooperative arrangement).
ł Phase III. The agreement (the new legal framework).
ł Phase IV. Implementation (how the agreement is implemented and how
changing circumstances and potential new conflicts are being dealt with).
Each of these phases is examined through the perspective of international water law,
with a particular emphasis on actual state practice. Part One of this report lays the
foundation for this work and concludes with an analysis of the Lake Lanoux dispute as
a model case study for the PCCP cycle. Part Two provides an overview of the
fundamental principles and rules of international law, in general, and those related to
international freshwaters, in particular. This sets the stage for understanding Phase I
(the legal context) of the PCCP cycle. Part Three identifies the principal causes of
water disputes and reviews mechanisms used by states to resolve them,
demonstrating how states employ available means of dispute resolution in order to
transform conflict into cooperation: Phase II (Transforming Conflict into Cooperation).
Part Four looks at the key elements of a “good” watercourse agreement, one for
example that promotes dispute avoidance and provides a flexible regime for managing
shared transboundary water resources. Finally, part Five provides a summary of
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lessons learned, and offers a checklist of best practices for states to use in their
management of international water resources.
Phase I: Legal Context: Phase II: Transforming

What Rules Apply? Conflict into Agreement: What
Legal Means & Mechanisms?
Dispute
Phase IV: Implementation: Phase III: New Agreement:

How to prevent/resolve future What Rules?
disputes?
Figure 1.The PCCP cycle: legal approach
How and why do “conflicts” over international waters arise? The most common
scenario is where a new or increased use by one or more states results in the
available water resources being inadequate to meet the needs of all users in a
quantitative or qualitative sense. This leads to a conflict of uses, which may develop
into an international dispute. Conflicts over water may also result from national
political and economic policies, such as an attempt to achieve food security, or may be
part of a broader political conflict. Disputes over water may vary greatly in terms of
their legal context, their spatial or temporal dimensions, number of states involved,
and so forth. Given such a range of possibilities for water-related disputes between
independent and sovereign nation states, how can international law provide
meaningful solutions? Fortunately, there does exist an identifiable body of legal rules
that govern international relations over water, and these will be examined in this
report.
The body of rules developed by international law offers a range of means and
mechanisms to states for dispute avoidance and dispute settlement. Central to the
specific rules that have evolved in the area of international water law are those norms
contained in the most important universal legal instrument dealing with international
waters: the 1997 UN Convention on the Non-Navigational Uses of International
Watercourses (1997 IWC Convention). This document will be referred to throughout
this study as the principal and only universal treaty in this area of international
relations.
International law offers a range of diplomatic means (negotiations, consultation,
good offices, mediation, fact-finding, inquiry, conciliation, the use of joint bodies and
institutions) and legal means (arbitration and adjudication) to resolve international
disputes. Generally, water conflicts are settled through negotiations with an
agreement as the final outcome. In fact, most transboundary water resources are
subject to a treaty regime of some form, with several hundred international
agreements governing the use of most of the world’s shared waters (FAO Index UN
FAO, Systematic Index of International Water Resources Treaties, Declarations, Acts
and Cases by Basin, Vol. II, Legislative Study No. 34 (1984)).
The agreement may be watercourse-specific (e.g. the 1961 Columbia River
Treaty), a boundary agreement (e.g. the 1909 Canada–United States Boundary
Waters Treaty), an umbrella agreement regulating all regional waters (e.g. the 1992
Helsinki Convention on Transboundary Watercourses), or an instrument for dispute
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resolution of the “friendly relations between neighboring states.” In each of these
documents, international lawyers will be most interested in the following key issues:
ł the material terms of the agreement (rights and duties)

ł the duration of the agreement (term)
ł performance of a treaty by its parties (implementation)
ł flexibility and adaptability of the treaty regime (how, or if, the agreement may
be modified in the event of changed or unforeseen circumstances).
In some cases the legal rules for each of these elements may be ascertained from
rules that are external to the treaty in question. Of particular relevance to the PCCP
cycle is how disputes are resolved within the legal regimes that govern the particular
transboundary waters under consideration. The PCCP process is cyclical: while an
agreement (treaty) may form the basis for the initial watercourse regime, issues of
implementation related to that agreement – such as changed circumstances – may
lead to a conflict. Thus conflict can arise out of cooperative arrangements. However,
conflict can also be avoided or resolved through cooperation, for example through the
mechanisms provided for in the agreement or by those means available in general
international water law. These legal rules and processes can provide the means with
which to transform the conflict into cooperation, which will most often be formalized
through a new or revised agreement. The PCCP cycle seen through this legal
perspective is illustrated in Figure 2.
Conflict
Dispute settlement
Cooperation: Watercourse
Implementation
Agreement
and compliance
Figure 2.Transforming conflict into cooperation: legal mechanisms and processes
3. THE PCCP CYCLE IN PRACTICE: THE LAKE LANOUX CASE

The dispute between France and Spain over Lake Lanoux provides a model example of
how the PCCP cycle works in practice.
3.1. Phase I: The Legal Context

The Lake Lanoux dispute arose from the French Government’s decision to permit
Électricité de France to develop a hydroelectric project that diverted water from Lake
Lanoux into the Ariège river. Lake Lanoux, approximately 2,200 meters above sea
level in the southern Pyrenees in French territory, drains into the Font-Vivre stream,
one of the headwaters of the Carol river, also in France. The Carol flows 25 kilometers
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until it reaches and crosses the Spanish–French border and becomes a tributary of the
Segre. The Carol waters were traditionally used for irrigation, particularly in Spain.
The Ariège river, on the other hand, is a tributary of the Gargone, which flows to the
Atlantic entirely through French territory. Spain opposed the French project, which
initially provided for no return of water to the Carol river and offered only monetary
compensation by France. The French offer to modify the project by returning to the
Carol the same amount of water that it extracted for the reservoir, was also rejected
by Spain.
The boundary waters delimitation treaties have governed the Lake Lanoux
regime for 150 years, although French–Spanish agreements concerning utilization of
boundary waters date back to 1750. The 1866 Treaty of Bayonne and Additional Act,
the primary agreements, contained provisions regarding the “control and enjoyment
of waters of common use between the two countries.” The Additional Act contained
the following important provisions:
ł It recognized the sovereignty and national jurisdiction of each party over “all
standing or flowing waters” within their respective territories.
ł It recognized existing uses “necessary to satisfy actual need.”
ł Each party had a right to develop the transboundary water resources, provided
that compensation was paid, unless harm was caused. Each party was permitted
to authorize works of public utility provided that it paid compensation.
ł Remaining waters were allocated proportionally on the basis of irrigable lands not
already served.
ł Prior notification had to be given to the competent local authorities when a
planned measure “might change the course or volume” of water resources, “so
that if they might threaten the rights of riparian owners of the adjoining
sovereignty a claim may be lodged . . . and thus the interests on both sides will
be safeguarded” (Art. 12).
ł An international commission of engineers was created with a right to ascertain
and allocate waters necessary for present uses, to remove abuses, and, to
identify available waters and area of irrigable land in each party’s territory.
ł The commission was to propose measures and “precautions” needed to
implement regulations and to “avoid, as far as possible, all strife among the
respective riparian owners” (Art. 18).
Another important bilateral instrument between Spain and France – the Treaty of
Friendship, Conciliation and Judicial or Arbitral Settlement – provided for disputes of
any kind to be resolved by conciliation, arbitration, or before the Permanent Court of
International Justice (PCIJ). Before a dispute could be submitted for settlement by
arbitration or adjudication, it had to be presented to a permanent international
commission or a permanent conciliation commission. The commission had to evaluate
the questions involved in the dispute, collect information, endeavor to bring the
parties to agreement, and report within six months of the submittal, unless the parties
otherwise agreed. If the conciliation failed, the parties could agree to submit the
dispute to arbitration or to the PCIJ/ICJ.
3.2. Phase II: From Conflict to Cooperation

In 1917, long before the dispute arose, the French and Spanish governments had
exchanged diplomatic correspondence about the French use of the waters of Lake
Lanoux. However, final agreement to convene a special international commission to
deal with the water-related issues was not reached before the Second World War.
Negotiations on the matter recommenced in 1949 at the meeting of the International
Commission of the Pyrenees, which had been created by France and Spain in 1875.
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Following negotiations, France and Spain agreed to convene a special Mixed
Commission of Engineers. In 1950, when France granted Électricité de France a
concession to divert the waters of Lake Lanoux, Spain proposed that a special
commission review the scheme. The Mixed Commission of Engineers met in August
1955 but without any result. The issue was raised in the International Commission for
the Pyrenees in November 1955, where France presented the work plan for the
scheme along with guarantees for Spanish riparians. No agreement was reached and
the International Commission accepted the French proposal to establish a special
mixed commission with the task of drawing up a joint proposal for the use of the
Lake’s waters; this first met in December 1955. The French proposal included:
technical guarantees for ensuring that the quantity of water supplied to the Carol
equaled the amount that would have been naturally available in the system; the
setting up of a mixed commission to control the works; Spanish on-site inspection;
and a guarantee of an annual minimum of 20 million cubic meters of water
irrespective of whether the amount is naturally available. After Spain rejected this
proposal, the parties agreed to a meeting of the Special Mixed Commission in March
1956. Spain presented a counter-proposal that did not require diversion of the Carol.
No agreement was reached and the Special Mixed Commission terminated its work
and reported to the two governments. At the March 1956 meeting of the International
Commission of the Pyrenees, France notified Spain that it would resume the project,
and commenced construction on the works. On November 19 1956, the parties
entered into a special agreement – a compromis – whereby they agreed to submit
their dispute to arbitration.
The issue at heart of the arbitration was whether the implementation of the
French project without a prior agreement with Spain violated the Treaty of Bayonne
and the Additional Act. Spain argued that the proposed project was unlawful because,
in particular, by altering natural conditions it would affect the entire system of waters
of the basin and would destroy the “community” established by the Additional Act in
favor of a unilateral control by one party. Spain also insisted that the Act of Bayonne
required the prior agreement of the two governments before any development
proceeded. France, in turn, argued that the treaties did not bar development, but
rather established rules for modification as the need arose, that the prior consent of
one state is not required by any of the agreements, and that the scheme safeguarded
the rights and interests of Spain and did not compromise its independence. France
also maintained that the scheme affected only 25 percent of the waters of the Carol –
those that flow from Lake Lanoux – and that this same amount would be returned
under the proposed development scheme, meaning that neither the flow nor the
course would be changed in Spain.
The Arbitral Tribunal, in its decision of November 16 1957, ruled in favor of
France, finding that the proposed project did not breach the applicable Treaties or any
rule of international law, and determined that the scheme was not subject to the prior
consent of Spain. In comments unrelated to the central legal issues of the case (obiter
dicta) the Tribunal reasoned that:
The conflicting interests aroused by the industrial use of international rivers

must be reconciled by mutual concessions embodied in a comprehensive
agreement. States have a duty to seek to enter into such agreements. The
“interests” safeguarded in the Treaties between France and Spain included
interests beyond specific legal rights. A state wishing to do that which will
affect an international watercourse cannot decide whether another state’s
interests will be affected; the other state is the sole judge of that and has
the right to information on the proposals. Consultations and negotiations
between the two states must be genuine, must comply with the rules of
good faith and must not be mere formalities. The rules of reason and good
6
faith are applicable to procedural rights and duties relative to the sharing of
the use of international rivers; and the subjecting by one state of such
rivers to a form of development which causes the withdrawal of some
supplies from its basin, are not irreconcilable with the interests of the
another state.
On the question of prior consent, the Tribunal noted that for a restriction on state
sovereignty to be limited to such an extent that exercising jurisdiction was possible
only upon agreement with another state is found only rarely in international relations
and must be proved by clear and convincing evidence. Requiring prior consent to all
planned measures would enshrine a right of veto, which is not permitted in
international law. International practice “prefers to resort to less extreme solutions by
confining itself to obliging the states to seek, by preliminary negotiations, terms for an
agreement, without subordinating the exercise of their competencies to the conclusion
of such an agreement.” The Tribunal found no evidence in the treaty law, international
practice, custom, or general principles of law that “states may utilize the hydraulic
power of international watercourses only on condition of a prior agreement.” The
obligation to give notice does not include the obligation to obtain agreement. In the
Tribunal’s view, France had met its international obligations because the project
provided for the full restoration of the waters in the channel of the Carol and
guaranteed an annual minimum flow that might even exceed the natural flow and
could alter the timing of the restoration of the waters to better meet Spanish
agricultural needs. In essence, the French proposal left Spanish riparians better off.
3.3. Phase III: The New Agreement

The Tribunal’s decision paved way to a new bilateral treaty, the Agreement Relating to
Lake Lanoux, which was signed in 1958 and incorporated relevant provisions of the
1866 Treaty of Bayonne, the French proposal to the Mixed Commission of December 2
1955, and the 1957 arbitral decision. The Electricité de France was obliged to provide
a minimum of 20 million cubic meters of water annually to the Carol river channel
above the Spanish border.
A six-member commission was established to ensure that the scheme was
implemented in accordance with the Agreement. The Commission was charged with
overseeing the construction and operation of the project. In the event that Électricité
de France was unable to deliver the amount of water agreed, France had to take all
necessary measures to address the situation, including making reparation. The
agreement refers disputes to the existing mechanisms under the Spain–France Treaty
of Friendship.
3.4. Phase IV: Implementation

The international commission established by the 1958 Agreement has met annually
since its inception. The agreement was amended in 1970. The new regime has been
successful, allowing downstream agriculture to benefit and permitting resolution of a
water quality problem. The test of any treaty is its ability to deal with changes to the
regime: what response to changed circumstances, unforeseen problems, conflicts of
use? These issues will be addressed in more detail in Part Four of this study.
4. LESSONS LEARNED AND ISSUES FOR CONSIDERATION

The Lake Lanoux case provides practical insight into how the rules and mechanisms of
international law are employed when dispute over transboundary waters arises. The
first step involves assessing the legal context. Are there rules that govern the
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interstate relations? If so, what is the normative content of these rules? In the Lake
Lanoux case there were a series of treaties that governed both the lawfulness of
proposed new uses on the watercourse and the resolution of disputes. The treaty
regime also provided for the creation of institutional bodies to deal with the dispute as
it evolved. When the diplomatic means of resolving the dispute were unsuccessful, the
parties sought settlement through binding arbitration. This led to a conclusion of the
dispute and the foundation for a new international agreement, which was finalized in a
treaty. That legal arrangement has proven to be a successful vehicle with which to
manage the watercourse up to the present date.
The Lake Lanoux case highlighted the substantive and procedural obligations of
the two riparian states in their development of an international river. It demonstrates
also a range of diplomatic and legal mechanisms that the two states employed in
order to achieve a mutually acceptable solution. However, each watercourse dispute is
different and the way in which this particular dispute was resolved is but one example.
It must be considered in its context. In the Lake Lanoux dispute, the PCCP cycle was
facilitated by:
ł the legal framework in place (series of treaties)

ł the relatively good neighborly relations between the parties
ł the creation of joint commissions to address the problems
ł agreement to submit the matter to arbitration
ł the fact that the project in question was determined not to cause any significant
adverse impact on the quantity or quality of water flowing into Spain.
Unfortunately, these enabling factors may not be present in other water conflicts
between watercourse states. Quite often relations between the parties to water
disputes are tense or openly hostile, the legal basis for regulating transboundary
waters may be either lacking or insufficient, and a planned or existing use of a shared
water resource may cause serious adverse impacts in another state, depriving it of its
“equitable and reasonable use.” In such a case international law, including various
mechanisms for conflict resolution, is traditionally appealed to by states to facilitate
seeking and securing a mutually acceptable solution. International law, while
admittedly not a panacea for all water conflicts, provides a set of rules, instruments,
and mechanisms capable of transforming conflicts into cooperation. What these legal
instruments and mechanisms are, and how they might be utilized will be discussed in
the following parts.
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PART TWO: THE ROLE OF INTERNATIONAL WATER LAW IN
DISPUTE PREVENTION AND RESOLUTION
1. INTERNATIONAL LAW: WHAT IT IS AND HOW IT WORKS

International law is sometimes defined as a system of principles and rules of general
application governing the conduct and relations of states. Over the last fifty years,
international law has evolved to include international organizations and certain legal
persons as “subjects” within its scope. What distinguishes international law from
domestic law is that the former is both created and enforced by states (at the
international level) primarily in order to regulate state–state relations in various
areas, while the domain of national law concerns matters that occur within a state’s
borders and are left to the sovereignty of that particular state. International law
operates as a separate system of law, with its own distinct rules and mechanisms.
The consequences for a state that violates a rule of international law are dealt
with under the rules of state responsibility. There are two criteria to be met to qualify
a state’s conduct as wrongful. First, it must be an action or omission attributable to
the state (i.e. committed by the state apparatus: organs, officials, etc.). Second, this
conduct must constitute a breach of a rule of international law. Thus, the alleged
violation must be determined to be: (i) committed by a state, and, (ii) break an
identifiable rule of international law. The remedies available to the state(s) whose
rights have been violated include, inter alia, an order for cessation of the wrongful
conduct, guarantees by the state in breach of non-repetition of the wrongful acts,
satisfaction (apology, exemplary damages), restitution, and compensation. Thus,
where one state has denied another state its equitable and reasonable utilization of a
transboundary watercourse, the former will be liable to remedy the wrongful conduct.
An important objective of international law is to ensure the peaceful relations of
states and to prevent and resolve interstate conflicts and controversies. The pacific
settlement of disputes has been enshrined in the United Nations Charter as one of the
main goals of the United Nations, which was created following the Second World War.
The principal UN organs – the General Assembly, the Security Council, and the
International Court of Justice (ICJ) in particular – are each entrusted with various
dispute avoidance/ settlement duties and functions, powers that they use regularly to
“maintain the peace.”
2. SOURCES OF INTERNATIONAL LAW

International law incorporates the rules that have emerged and developed as a result
of many centuries of interstate relations and practice. The rules that legally bind
states may be found in international treaties, international customary law, and,
general principles of law: the so-called “sources” of international law. International
treaties and international custom are the primary sources of law. The decisions of
international courts and arbitral tribunals, and legal doctrine (the teachings of the
“most highly qualified publicists” of various nations) are also used to determine the
applicable rules of law, as “subsidiary” sources.
Until relatively recently the rules of customary – or unwritten – law was the most
prevalent source of international law and played a central role in defining the
lawfulness of a state’s international activity. International custom is a legal rule that
has evolved from the practice of states, usually in the absence of formal agreements
(although agreements may contain rules of customary law). To become a binding rule
of customary law, there must be a demonstrable general, and widespread practice,
9
which shows that states consider this rule as
the one that governs their activities in a The “sources” of international law
particular area. The evidence of customary law
(state practice) can be found in the form of Statute of the International Court of
Justice
agreements, statutes and decrees, diplomatic
Article 38 (1). “The Court, whose
correspondence, statements of states’ repre- function is to decide in accordance
sentatives in international organizations and with international law such disputes as
conferences, and so forth. are submitted to it, shall apply:
Many rules of international law (e.g.,
a) international conventions,
freedom of the high seas, diplomatic
whether general or particular,
immunities and privileges) have their roots in establishing rules expressly
international custom. They may exist as both recognised by contesting states;
treaty norms (for those states that participate b) international custom, as evidence
in a specific international agreement con- of a general practice accepted as
taining these rules) and customary rules (for law;
those states that do not). As will be seen, the c) the general principles of law
basic principles of international water law – recognised by civilised nations;
including, inter alia, the principle of equitable d) . . . judicial decisions and the
and reasonable utilization – initially emerged teachings of the most highly
qualified publicists of the various
and developed as rules of customary law.
nations, as subsidiary means for
However, international custom by its very the determination of rules of law.”
nature is imprecise and thus open to con-
flicting interpretations. Additionally, customary
law may not be able to address the increasingly sophisticated and complex issues that
now face states. Thus, over the last half-century there has been a prominent move to
“codify” (write down) and “progressively develop” the rules of customary international
law. As a result, today, international treaties have replaced customary law as the
most important source of international legal rights and obligations. Given their
particular significance, especially in the area of water law, treaties will be discussed in
some detail in this part of the study.
In the rare instances where rules of customary law or treaty law are lacking or
inadequate, the source of international law may be general principles of law, used to
determine respective rights and obligations of states. These are derived from the
domestic practice of the majority of legal systems around the world and generally
include rules that are accepted by all, such as the prohibition of slavery, the principle
of good faith, the rules relating to estoppel and proportionality, to name a few. The
general principles of law are identified through inference, analogy, and inductive
reasoning from existing international or domestic (national) law.
As a subsidiary source of international law, international judicial decisions and
the writings of jurists may contribute to the determination of the existence of the legal
rules and their content. Although judges and lawyers do not create law per se, their
analysis of state practice can offer evidence of customary law. In international law,
the decisions of international courts and tribunals are binding only for the parties in
the particular dispute and only in respect of that particular case. Unlike the common
law tradition of legal “precedents,” international tribunals are not obliged to follow
previous decisions of any other tribunal or court. However, practice demonstrates that
these earlier decisions are almost always taken into consideration where similar cases
are decided.
Non-legally binding instruments (often referred to as “soft law”) – such as
declarations, resolutions, and recommendations adopted by the UN General Assembly
and various international organizations and conferences – also contribute to the
formation of international law, but indirectly. Even if not binding by their legal nature,
resolutions and recommendations may have a “normative” (e.g. law-making) value.
On the one hand, these acts can often serve as evidence of customary international
10
law, reflecting the views of states supporting them. On the other hand, such acts, by
introducing certain rules of states’ behavior, may act as a catalyst for the creation of
emerging rules of customary or treaty law.
3. LAW OF TREATIES
Treaties have now replaced customary law as the primary source of international law.
International treaties are considered to have many advantages over customary law.
They provide a more clear manifestation of the legal undertakings made by states;
their norms are more precise and easily accessible. They are able also to deal with
questions of a highly technical nature (such as freshwater quality and quantity
standards, norms of water abstraction, permissible levels of discharges and emissions,
and so on).
Although a treaty may be known by different names – convention, agreement,
protocol, charter, accord, and statute among others – its legal nature is always the
same: these instruments are binding on the state parties and establish their
respective rights and obligations, together with the “rules of the game” that govern
their relations. As a general rule, a treaty applies only to those states that have
expressed their consent to be bound by it. Depending on the number of parties
involved treaties may be bilateral (two state parties), multilateral (more than two
state parties) with limited participation (open for signature by a restricted number of
countries), and universal (open for participation by all states).
Multilateral treaties, which are often called international conventions, are
normally adopted by specially convened international conferences, usually under the
auspices of the United Nations General Assembly or of specialized UN agencies.
Among the most important are conventions that “codify” customary international law
in particular fields of interstate relations or activities: the law of the sea, diplomatic
and consular relations, and the law of the non-navigational uses of international
watercourses, to name but a few.
The 1969 Vienna Convention on the Law of Treaties codified and progressively
developed the international law relating to treaties, namely the customary and other
rules governing conclusion, implementation, interpretation, and termination of
international agreements. Treaties are concluded, or become legally binding, only
after a series of specific actions by the states that are party to them. The actions are
designed to signify clearly the consent or agreement of states to be bound by their
legal undertakings. The act of giving consent can be demonstrated by signing and, in
the case of important treaties, through their subsequent ratification by states. In
modern practice the ratification process is important and usually necessary since the
constitutional law of most countries requires an elected representative body to
formally approve the agreement before it becomes legally binding. States may also
“accept” or “accede” to a treaty. Evidence of the approval (ratification, acceptance,
accession) is contained in the formal communication of the state to the official
depositary that administers the treaty. The date of signature and the date of the
deposit of the “instrument of ratification” are legally significant. They signify the
moment when the state’s legal obligation is effective, provided that the treaty has
entered into force.
The principle pacta sunt servanda – found both in customary law and the UN
Charter – is a fundamental rule of international law that requires states to abide by
the agreements they make. International agreements are binding and must be
performed in good faith.
All disputes concerning the implementation, interpretation, or breach of an
agreement must be resolved peacefully through a range of dispute settlement
mechanisms available to states, both diplomatic (negotiation, mediation, fact-finding
11
and inquiry, conciliation, etc.) and legal (adjudication and arbitration), each of which
will be analyzed in Part Three of this study.
4. INTERNATIONAL WATER LAW

International water law (also known as international watercourse law, international
law of water resources) is a term used to identify those legal rules that regulate the
use of water resources shared by two or more countries. The primary role of
international water law is to determine a state’s entitlement to the benefits of the
watercourse (substantive rules) and to establish certain requirements for states’
behavior while developing the resource (procedural rules).
The development of international water law is inseparable from the development
of international law in general. Such fundamental principles and basic concepts as the
sovereign equality of states, non-interference in matters of exclusive national
jurisdiction, responsibility for the breach of state’s international obligations, and
peaceful settlement of international disputes equally apply in the area governed by
international water law.
At the same time, this relatively independent branch of international law has
developed its own principles and norms specifically tailored to regulate states’ conduct
in a rather distinct field: the utilization of transboundary water resources. The basic
rules are: the right to use waters of the transboundary watercourse located in the
territory of the state (“equitable and reasonable utilization”), and a correlative duty to
ensure similar rights are enjoyed by co-basin states.
The law governing international watercourses has evolved through both custom
(practice of states) and international treaties, and has been influenced by other
“sources” of law: general principles of law, judicial decisions, and resolutions and
recommendations of international organizations. The range of sources for international
water law is too great to be comprehensively covered in this study, and thus, only the
most important will be dealt with here.
5. CUSTOMARY RULES OF INTERNATIONAL WATER LAW

International customary law is the primary source of two fundamental obligations on
states in terms of transboundary water resources: to use them in an “equitable and
reasonable” manner, and to avoid causing significant harm to other riparian states.
There have been several attempts to put these and other customary rules “on paper.”
The first such effort was made as early as 1911 by the Institute of International Law
(IDI), an authoritative professional organization of international lawyers, in its
Declaration of Madrid. Entitled “International Regulation regarding the Use of
International Watercourses for Purposes other than Navigation,” the Declaration
proposed certain rules to be observed by riparian states while using a common
watercourse. Fifty years later the IDI returned to the question of the non-navigational
uses of international watercourses and adopted two resolutions: “On the Use of
International Non-Maritime Waters” (Salzburg, September 11 1961) and “On the
Pollution of Rivers and Lakes and International Law” (Athens, September 12 1979).
The main emphasis of all three documents was on the equality of the riparian states’
rights to utilize transboundary waters, subject to certain limitations imposed by
international law.
A more sustained and detailed attempt to develop in a systematic way “a code of
conduct” concerning transboundary water resources was made by the International
Law Association (ILA), a professional non-governmental organization created in 1873
for the purpose of “study, elucidation and advancement of international law.” In 1966,
the ILA adopted the Helsinki Rules on the Uses of the Waters of International Rivers, a
12
comprehensive set of rules that codified and
progressively developed the law governing utilization ILA Helsinki Rules
of the waters of international drainage basins. The
ILA Helsinki Rules could be considered as a Article IV: “Each basin State
“statement of the existing rules of international law” is entitled, within its territory,
at the time they were adopted. The most important to a reasonable and equitable
share in the beneficial use of
among these was the cornerstone principle, according
the water of an international
to which each international river basin state was drainage basin.”
entitled to an equitable and reasonable share in the
uses of the waters of an international drainage basin
(Article IV).
Since 1966, the ILA has adopted a number of resolutions that provide
supplementary rules dealing with specific issues of transboundary water resources:
flood control, international groundwaters, and regulation of flow, pollution,
administration, and so forth, most of which are contained in their Campione
Consolidation (ILA, 1999). Although the ILA resolutions are not legally binding they
are widely acknowledged by many states and numerous international water resource
experts to be an authoritative statement of the international law governing
transboundary water resources.
6. JUDICIAL DECISIONS
International judicial decisions played a particularly important role in the evolution
and clarification of the customary rules of international water law. On a number of
occasions international tribunals were asked to settle disputes over transboundary
waters between riparian countries. The most important judicial decisions by the World
Court include:
RIVER ODER
In the 1920s the Permanent Court of International Justice (PCIJ), a predecessor of the
International Court of Justice (ICJ), was called upon to resolve a dispute concerning
navigational rights on the tributaries of the River Oder, which had been
“internationalized” for the purpose of navigation after the First World War under the
Treaty of Versailles. Although the Court was not asked to deal with the non-
navigational uses, it introduced in its decision a relatively new notion – the community
of interest of riparian states – which since has influenced the evolution of international
water law.
RIVER MEUSE
In the 1930s, the PCIJ was again involved in resolving a water dispute, this time
between the Netherlands and Belgium over the diversion of water from their
transboundary Meuse river. The impact of the Court’s decision on the evolution of
water law was somewhat limited since it focused primarily on the questions of
application and interpretation of the existing bilateral agreement, which established
the regime governing diversions of water from the river. However, it is significant that
the two countries agreed to submit their dispute to international adjudication.
RIVER DANUBE
The most recent, and probably the most important, dispute over water brought before
the ICJ is the Gabþíkovo–Nagymaros case (also known as the Danube river case),
involving Hungary and Czechoslovakia (at a later stage, Slovakia, as a successor
state). The dispute arose over the implementation of the bilateral treaty concluded in
1977 with a goal of constructing a series of dams and barrages on a stretch of the
13
river crossing the territories of the two states, Hungary and Czechoslovakia. The
project was conceived as a joint venture, with equal participation in terms of
investment and sharing of future benefits, for the purposes of hydropower generation,
and improving navigation and flood and ice control on the Danube river. The range of
legal issues that the Court had to address was unprecedentedly broad: from the
validity of international treaties, succession of states and international responsibility to
environmental protection, and the law of international watercourses. In essence, the
Court decided that both parties had acted unlawfully: Hungary by abandoning work on
the project and unilaterally terminating the bilateral agreement, Slovakia by
responding to Hungary’s actions through diverting for its use and benefit between 80
and 90 percent of the waters from the part of the river that constituted the boundary
between the two countries. The Court also upheld the legal validity of the 1977 treaty,
which allowed the parties to adjust the project in order to address environmental
concerns, and ruled that its purported termination by Hungary was ineffective. The
joint operational regime of the entire project would have to be reinstalled, and the
parties, unless they agreed otherwise, would have to compensate each other for the
harm caused by their unlawful acts.
A number of international arbitral decisions, such as the Lake Lanoux case, have also
contributed to the evolution of international law in this field. Others include, for
example, the Helmand river delta dispute between Persia and Afghanistan over the
delimitation of the boundary and the use of the river’s waters, the San Juan river
dispute between Costa Rica and Nicaragua, and the Zarumilla river dispute between
Ecuador and Peru over the delimitation of their respective common boundaries.
National judicial decisions, although not a source of international law as such,
can serve as models for the resolution of international disputes or be used to identify
applicable general principles of law. This is especially true when considering decisions
of the supreme courts that were called on to settle water controversies between
different constituent units (states, länder) in federal states. The US Supreme Court, in
particular, has greatly influenced the articulation of some of the fundamental rules of
water law. The Court unequivocally endorsed the approach to water allocation based
on the equality of rights of upper and lower riparian states: the former are not entitled
to claim exclusive rights to use water only because it originates within their territory
while the latter have no entitlement to undiminished stream flows. In resolving
interstate conflicts over water sharing, the Supreme Court developed and applied the
doctrine of “equitable apportionment,” which eventually evolved into the international
legal principle of “equitable and reasonable utilization.”
7. TREATIES
International treaties are the primary instruments of cooperation in the field of water
resource utilization as well as the most important source of international water law.
More than 3,600 international agreements, bilateral and multilateral, that deal with
water-related issues are known. The first general treaty dealing with international
watercourses – the 1923 Geneva Convention relating to the Development of Hydraulic
Power affecting more than one state – failed to achieve its objectives. It was ratified
by only ten countries, none of whom had common borders.
However, there are a large number of multilateral – regional and basin-wide –
agreements, the most significant being the 1997 UN Convention on the Law of the
Non-Navigational Uses of International Watercourses (1997 UN IWC Convention).
Among the other important water treaties are:
ł The 1969 Treaty on the River Plata (23 April 1969).
14
ł The 1992 UN Economic Commission for Europe Convention on the Protection and
Use of Transboundary Watercourses and International Lakes, concluded in
Helsinki (1992 UN ECE Helsinki Convention).
ł The 1992 Agreement on Cooperation in the Area of Joint Management, Utilization
and Protection of Interstate Water Resources [in Central Asia] (1992 Central
Asian Water Agreement).
ł The 1994 Convention on Cooperation for the Protection and Sustainable Use of
the Danube River (1994 Danube Convention).
ł The 1995 Agreement on Cooperation for the Sustainable Development of the
Mekong River Basin (1995 Mekong Agreement).
ł The 1998 Convention on the Protection of the Rhine (1998 Rhine Convention).
ł The 1995 Protocol on Shared Watercourse Systems in the Southern African
Development Community (1995 SADC Protocol), to be superseded by the 2000
Revised Protocol on the Shared Watercourses in the Southern African
Development Community (2000 SADC Revised Protocol).
Multilateral agreements usually establish a general legal and institutional basis for
cooperation for either a particular region (Europe, Southern Africa, Central Asia), a
river basin (Danube, Rhine), or a part of one (Mekong). They may have a form of a
“framework” treaty (1992 Helsinki Convention), sometimes supplemented by
additional instruments (such as the 1999 London Protocol on Water and Health to the
1992 Helsinki Convention). Or they may contain both general commitments and more
specific rules and standards.
Examples of bilateral water-related treaties are numerous. Among the earliest
was the 1909 Boundary Waters Treaty concluded between the United States and
Canada (Great Britain), which created an International Joint Commission: one of the
most successful models of bilateral cooperation. Many bilateral treaties, the primary
purpose of which is to delineate international boundaries, also deal with the waters
that are crossed by or constitute an international boundary (one example is the 1973
agreement between Czechoslovakia and the USSR on the regime of state frontiers and
cooperation in frontier questions). Some bilateral agreements may also have a
framework character, establishing certain general legal rights and obligations, and
creating institutional mechanisms of cooperation for all transboundary waters (for
example, the 1956 treaty between Hungary and Austria concerning the regulation of
water economy questions in the frontier region, or the most recent agreement of May
24 2002 between Russia and Belarus on cooperation in the field of protection and
rational use of transboundary water bodies). Finally, bilateral agreements are often
concluded to regulate different activities on specific watercourses (such as the series
of agreements between France and Switzerland concerning Lake Leman) or to
implement certain joint projects (such as the 1977 treaty between Hungary and
Czechoslovakia concerning construction of a system of locks on the Danube).
Thus, water treaties may be bilateral or multilateral; they may have a framework
character governing all transboundary waters, or deal with a specific IWC or part of it;
they may regulate a particular use, be project specific or be concerned with
watercourse protection and pollution control.
8. THE 1997 UN INTERNATIONAL WATERCOURSES

CONVENTION
Given the multitude and the variety of international agreements dealing with water
resources, it may be surprising that the only global treaty in this area, the 1997 UN
Convention on the Non-Navigational Uses of International Watercourses (1997 IWC
Convention), was adopted fairly recently. The initial attempt to draft a treaty of
15
universal application to international freshwaters dates
back to 1970, when the UN General Assembly asked 1997 IWC Convention:
its International Law Commission (ILC) to prepare a controversial issues
set of rules governing the non-navigational uses of
IWC. The Commission, which consists of thirty-four ł the effect of the
international lawyers serving in their individual Convention on existing and
future agreements
capacity and representing the major legal systems of
ł the relationship between
the world, is a special UN organ entrusted with the “equitable and reasonable
codification and progressive development of inter- utilisation” and the “no
national law. In 1994, the ILC adopted Draft Articles harm” rule
on the law of the non-navigational uses of ł dispute settlement.
international watercourses, following close to thirty
years of work on the topic. This project went forward
to the UN General Assembly and its Sixth (Legal) Committee, which provided the
forum for negotiating and eventually adopting the 1997 IWC Convention.
That the effort to codify the international law of water resources was a
challenging task is evidenced by the time it has taken to come to agreement and by
the differences in legal positions that had to be reconciled. Until the very last
deliberations of the UN Working Group of the Whole in April 1997, it was uncertain
whether or not states could reach agreement and adopt a universal convention.
Seemingly irreconcilable views that had divided upstream and downstream countries
in the past on the nature and extent of a state’s right to use transboundary water
resources resurfaced during the debate. The three central issues that dominated the
UN debate included: a) the status of existing treaties and the effect of the convention
on future agreements; b) the relationship between the “no harm” rule and the
principle of “equitable and reasonable utilization,” including environmental consid-
erations; and, c) the provisions on dispute settlement.
Notwithstanding the serious disagreements that for some time threatened the
negotiations, the text was finally agreed on by the majority of state representatives in
the Sixth Committee and adopted by the UN General
Assembly on May 21 1997. In favor were 104 states,
with three against (Burundi, China, and Turkey), and 1997 IWC Convention
twenty-six abstaining. To date, twelve countries have
ratified the 1997 IWC Convention, and eight additional Ratified by: Finland,
Hungary, Iraq, Jordan,
states have signed but not yet ratified it. To enter into
Lebanon, Namibia,
force it needs to be ratified or approved by thirty-five Netherlands, Norway, Qatar,
states. Regardless of when and whether the South Africa, Sweden, and the
Convention enters into force, it is clear that it will play Syrian Arab Republic.
a very important role in all relations involving
watercourse states. Signed by: Cote d’Ivoire,
Germany, Luxembourg,
So as to better understand the significance of the
Paraguay, Portugal, Tunisia,
1997 IWC Convention and its potential role in
Venezuela, and Yemen.
preventing and resolving water conflicts, it may be (September 2002)
worthwhile to give a snapshot of the conventional
provisions with some in-depth discussion of the most
important rules.
8.1. Scope
The 1997 IWC Convention applies to uses of IWC for purposes other than navigation,
and to measures of protection, preservation, and management related to those uses.
“Preservation” includes conservation, but does not extend to living resources unless
these are affected by other uses. Navigation is covered only to the extent that it
affects other uses or is affected by them. The term “international watercourse” is
16
defined as a system of surface and
UN IWC Convention connected groundwaters located in
more than one state. The 1997 IWC
Article 2. Use of Terms: “Watercourse” means Convention does not govern the use
a system of surface waters and groundwaters of “confined” transboundary
constituting by virtue of their physical relationship groundwater (also called “confined
a unitary whole and normally flowing into a
aquifers”): groundwater that is not
common terminus.”
related to an IWC. Although the
International Law Commission had
appended a draft resolution to the
1994 Draft Articles that formed the working document for the 1997 IWC Convention,
the UN Working Group of the Whole did not accept this proposal. Thus, the
international law that governs shared groundwater is uncertain. This is a serious
shortcoming of the Convention, since a large portion of the world’s freshwater is
contained in shared aquifers. However, states were not prepared to accept that the
rules that governed shared surface water should apply also to shared confined
aquifers. (See Annex II: “Scope Defined in International Agreements.”)
8.2. Substantive Rules

This term normally defines those customary
or treaty rules that deal with the creation,
1997 IWC Convention
definition, and regulation of rights and
duties. The issue of “entitlement” is the fund- Article 5. Equitable and reasonable
amental issue. Entitlement is a legal right to utilization and Participation:
use the waters of a shared watercourse “Watercourse states shall in their
located in the territory of a watercourse respective territories utilize an
state. It deals with the question “who has a international watercourse in an equitable
right to use what water.” Ideally, a trans- and reasonable manner. In particular,
boundary watercourse agreement should an international watercourse shall be
identify the entitlement of a state and used and developed by watercourse
apportion the beneficial uses of the resource states with a view to attaining optimal
and sustainable utilization thereof and
among the watercourse states. In the
benefits therefrom taking into account
absence of such an agreement, customary
the interests of the watercourse states
international law provides that each riparian concerned, consistent with adequate
or watercourse state has the right to an protection of the watercourse.”
equitable and reasonable use of a trans-
boundary watercourse located in its territory. Transboundary watercourse agreements
may refer to the customary rule “equitable and reasonable utilization,” or may provide
for a quantified allocation such as a right to a specific amount of water (as was done
under the 1996 Farakka Barrage Treaty between India and Bangladesh), or allocate
rights to use waters of specific parts of an IWC system (1960 Indus Waters Treaty).
Equitable and reasonable utilization is considered to be a statement of customary
international law evolved from the practice of sharing IWCs, taken in part from the
jurisprudence of federal states. This rule encompasses both a watercourse state’s
right to a share of the beneficial uses and benefits of an IWC, and the correlative
obligation not to deprive other watercourse states of their right to an equitable
utilization. It implies attaining an optimal utilization, securing the maximum possible
benefits for all watercourse states and achieving the
greatest possible satisfaction of all their needs, while Legal entitlement:
minimizing the detriment to, or unmet needs of, each.
“Equitable” utilization does not necessarily mean an Who has a right to use what
equal portion of the resource or equal share of uses and water?
benefits. The application of equitable and reasonable
17
utilization in a particular watercourse will not
1997 IWC Convention prohibit a use that causes damage unless it
exceeds the limits of the using state’s
Article 6. Factors relevant to
equitable share of the watercourse. An expert
equitable and reasonable
utilization opinion is instructive of the difficulties
encountered in applying the rule: “it could be
“The weight to be given to each factor argued that the rule is more a guideline –
is to be determined by its importance possibly due to a complex area in which
in comparison with that of other
engineers and economists play so large a
relevant factors. In determining what
is a reasonable and equitable use, all role.” (Lipper, 1967).
relevant factors are to be considered The primary substantive rules of the
together and a conclusion reached on 1997 IWC Convention are found in Part II:
the basis of the whole.” General Principles. They include the
governing rule of “equitable and reasonable
utilization” (Article 5), and the obligation to take all measures necessary not to cause
significant harm (Article 7). How states are to determine what is equitable and
reasonable is explained in Article 6, which provides a non-exhaustive list of factors to
be considered in the determination of an “equitable and reasonable use” (ILC Report,
1994). These factors cover two broad categories: (i) scientific (hydrographic,
hydrological, climatic, ecological, factors of a natural character; effects of use on other
watercourse states, existing and potential uses, conservation measures, and
availability of alternatives), and (ii) economic (social and economic needs, population
dependent on watercourse). An indication of how these factors are to be utilized is
found in Article 6(3), which directs that “the weight to be given each factor is to be
determined by its importance in comparison with that of other relevant factors. In
determining what is an equitable and reasonable use, all relevant factors are to be
considered together and a conclusion reached on the basis of the whole.”
Interestingly, this provision was added during the final stages of the multilateral
negotiation in New York and comes directly from the ILA’s Helsinki Rules. For more
detail on the ILC’s approach to this provision, see its Commentary to the provision
contained in its 1994 Draft, which, although of no legal force, is an important tool for
understanding the meaning of the provision. Similarly, the work of the ILC, including
the reports of the Special Rapporteurs, offers important insights into the rule and
demonstrates some of the controversies over the evolution of the rule.
The challenges with applying equitable and reasonable utilization in practice will
be examined more closely in Part Four of this study. As a practical first step, however,
the ILC suggests that a watercourse state should first attempt to determine its legal
entitlement to the beneficial uses of an IWC in its territory:
This process of assessment is to be performed, in the first instance at least,

by each watercourse state, in order to assure compliance with the rule of
equitable and reasonable utilization laid down in Article 5. . . . This provision
means that, in order to assure that their conduct is in conformity with the
obligations of equitable utilization contained in Article 5, watercourse states
must take into account, in an ongoing manner, all factors that are relevant
to ensuring that the equal and correlative rights of other watercourse states
are respected.”
(ILC Report, 1994, p. 100.)
The primary rule of “equitable and reasonable use” requires consideration of “all
relevant factors” as they may arise in the context of new or increased uses. Thus,
factors such as vital human needs, in-stream flow requirements, pollution harm,
sustainable development requirements and so forth, are all part of the calculus. The
Convention imposes on the states parties an obligation to “protect and preserve the
18
ecosystems” (Article 20) of international
1997 IWC Convention watercourses and to “prevent, reduce and
control the pollution of an international water-
Article 20. Protection and
course that may cause significant harm to
preservation of ecosystems
other watercourse states or to their environ-
“Watercourse states shall, individually ment, including harm to human health or
and, where appropriate, jointly, safety, to the use of the waters for any
protect and preserve the ecosystems beneficial purpose or to the living resources of
of international watercourses.”
the watercourse” (Article 21). The operation-
alization of the principle of equitable and
reasonable utilization in each particular case requires that these environmental factors
be considered – the extent to which such elements will be controlling will depend on
the circumstances of each particular case. (See Annex III: Relevant Factors Matrix.)
8.3. Procedural Rules

The duty to cooperate embodied in the 1997 IWC
Convention serves as a bridge between its substantive 1997 IWC Convention
and procedural rules. To properly realize the rule of
Article 8. General
equitable and reasonable utilization, certain mechanisms
obligation to cooperate:
of cooperation are necessary, including the prior notific-
ation of planned measures, the exchange of information, “Watercourse states shall
consultations, and in certain instances negotiations. cooperate on the basis of
What rules must watercourse states follow when sovereign equality territorial
integrity, mutual benefit
they plan new works on international waters? In Part III
and good faith in order to
“Planned Measures,” the Convention sets forth a number attain optimal utilization
of procedural rules to be followed by states when they and adequate protection of
seek to undertake new works. In the first instance, an international
states must on a regular basis exchange readily watercourse.”
available data and information on the condition of the
watercourse, in particular that of a hydrological, meteorological, hydrogeological, and
ecological nature and related to the water quality, as well as related forecasts (Article
9(1)). In the event of a planned measure, states are required to “exchange
information and consult each other and, if necessary, negotiate on the possible effects
of planned measures on the condition of an international watercourse” (Article 11).
For planned measures involving works that could significantly affect other states,
the procedural requirements are more stringent. Part III contains detailed procedures
aimed at determining whether or not a proposed measure should go forward. The
notified watercourse state has a fixed
1997 IWC Convention period within which to reply, informing of
its opinion with respect to the proposed
Article 12. Notification concerning
measure. Where no response is
planned measures with possible adverse
received, and the notifying state is
effects
confident that its planned measure
Before a watercourse state implements or complies with the rule of equitable and
permits the implementation of planned reasonable utilization, it can proceed.
measures which may have a significant
Where the notified state objects to the
adverse effect [on other watercourse states],
planned measure, consultations are
it shall provide those states with timely
notification thereof. Such notification shall required, with a view to seeking a
be accompanied by available technical data solution that is equitable and
and information, including the results of any reasonable. However, no state has a
environmental impact assessment, in order veto right over the development
to enable the notified states to evaluate the activities of another watercourse state.
possible effects of the planned measures. Neither can planned measures be
19
implemented without meeting notification and, if necessary, consultation requirements
established by the procedural rules.
8.4. Institutional Mechanisms

Under the UN IWC Convention, states are encouraged to
create institutional mechanisms, but not obligated to do 1997 IWC Convention
so. This is consistent with the aims of a framework
Article 24. Management
agreement, although states were divided on how explicit
this provision should be. In international practice, states “Watercourse states shall,
appear willing to embrace a range of institutional mech- at the request of any of
anisms, from the Meeting of the Parties (MOP, in the them, enter into
1992 Helsinki Convention), to the establishment of joint consultations concerning
the management of an
commissions (IJC in the 1909 Canada–United States
international watercourse,
Boundary Waters Treaty), to the establishment of spe-
which may include the
cialized dispute settlement tribunals (e.g. the Tribunal establishment of a joint
set up in the 1995 SADC regime). These are discussed in management mechanism.”
more detail in Part Four of this study. Suffice it to emph-
asize at this point the very important role of institutional mechanisms in the PCCP
cycle, as evidenced in the majority of state practice involving transboundary waters.
8.5. Dispute Settlement

Despite significant controversy over whether or not it was appropriate for a framework
convention to contain dispute settlement provisions, Article 33 – the compromise
formula eventually adopted – offers a range of dispute resolution mechanisms. States
are free to select the means through which to settle their differences, including
negotiation, good offices, mediation, conciliation, joint watercourse institutions, and
so forth. However, if these attempts fail, any state to the dispute can unilaterally
invoke the compulsory fact-finding procedure provided for under Article 33.
In its final form, Article 33 reflects a certain compromise between the two views.
Nonetheless a number of states found it necessary to clarify their positions regarding
the provision during the UN plenary session that adopted the Resolution. Some states,
notably China, India, Israel, and Rwanda did not support Article 33 because in their
view it went too far in establishing mandatory dispute settlement. China and India
1997 IWC Convention

Article 33. Settlement of Disputes
1. In the event of a dispute between two or more Parties concerning the interpretation or
application of the present Convention, the Parties concerned shall, in the absence of an
applicable agreement between them, seek a settlement of the dispute by peaceful
means in accordance with the following provisions.
2. If the Parties concerned cannot reach agreement by negotiation requested by one of
them, they may jointly seek the good offices of, or request mediation or conciliation by,
a third party, or make use, as appropriate, of any joint watercourse institutions that
may have been established by them or agree to submit the dispute to arbitration or to
the International Court of Justice.
3. . . . If after six months from the time of the request for negotiations . . . the Parties
concerned have not been able to settle their dispute through negotiation or any other
means . . . the dispute shall be submitted, at the request of any of the parties to the
dispute, to impartial fact-finding. . . .
4. A Fact-finding Commission shall be established, composed of one member nominated by
each party concerned and in addition a member not having the nationality of any of the
parties concerned chosen by the nominated members who shall serve as Chairman.
20
voted against the Resolution primarily owing to their dissatisfaction with its dispute
settlement provisions. Turkey took the position that it was unsuitable for a framework
instrument to contain any provisions relating to dispute resolution. On the other hand,
some states, such as Pakistan, Switzerland, and Syria, were unhappy with Article 33
because in their view it was not strong enough. The extent of disagreement of states
demonstrates the importance they attribute to the process associated with water-
related disputes.
The so-called “fact-finding” mechanism resembles conciliation, since the Fact-
finding Commission’s task includes providing “such recommendation as it deems
appropriate for an equitable solution of the dispute.” The major difference between
fact-finding and the other means of dispute settlement under the convention is that
the fact-finding procedure can be invoked by any of the parties, while recourse to
mediation, conciliation, arbitration, or adjudication requires the consent of all the
parties concerned.
Arbitration and adjudication are also optional and need the agreement of all
parties to the dispute. An annex to the convention sets out the procedure for
arbitration, which generally follows an established pattern. The panel is composed of
three members, two nominated by the parties and a chair selected by the nominated
arbitrators. Where there is more than one “party in the same interest,” the parties
nominate an arbitrator jointly. Applicable law is the convention and “international
law.” The panel may recommend “essential interim measures of protection.”
Proceedings are confidential, and the parties
share the costs equally. The tribunal has a right 1997 IWC Convention
to consent to intervention by parties with a legal
Article 33. Settlement of
interest in the dispute. The panel must give its Disputes
decision, stating the reasons, and any dissenting
opinions, within five months of being fully 8. The Commission shall adopt its
constituted, or within a maximum of ten months. report by a majority vote, unless
it is a single-member
The decision is final and binding unless the parties
Commission, and shall submit
agreed in advance to an appeal procedure. that report to the parties
Despite the fact that the convention’s fact- concerned, setting forth its
finding mechanism has not yet been tested, it findings and the reasons therefor
appears well suited to the particularities of water- and such recommendation as it
related disputes, as demonstrated by the sub- deems appropriate for an
stantial domestic practice in the United States and equitable solution of the dispute,
India, which each have a long history of resolving which the Parties concerned shall
interstate controversies over water (Sherk, 2000). consider in good faith.
9. SUMMARY
This part has presented a general overview of international water law. International
water law is a part of international law and along with its general principles provides
more specific rules, which have their origins in both international custom and treaty
law. The most important international water-related treaty is the 1997 UN
International Watercourses Convention. Its main elements were examined under the
headings of “scope,” “substantive rules,” “procedural rules,” “institutional
mechanisms” and “dispute settlement,” as the background for the more detailed
analysis of state practice that follows in Parts Three and Four. Part Three examines
how water conflicts are transformed into cooperative frameworks, with an emphasis
on actual case studies. Part Four sets forth the issues related to the design and
implementation of watercourse agreements, as a catalyst for conflict prevention and
instruments of cooperation.
21
PART THREE: TRANSFORMING CONFLICT INTO AGREEMENT:
MEANS AND MECHANISMS
1. WATER CONFLICTS: AN OVERVIEW

In order to ensure a better understanding of the dynamics and legal intricacies of the
PCCP cycle, this part of the study will first address the concept of “conflict” in
international law. The primary focus here will be on the issue of “water conflicts,” their
principal causes and exigencies. The discussion will provide an insight into how
various diplomatic and legal techniques of conflict resolution have been used in the
past, and will thus inform the process of determination and selection of the optimal
conflict resolution mechanisms to be employed in possible future arrangements.
Despite the fact that the only recorded war with water as its principal cause
happened some 4,500 years ago, disputes over international waters are both common
and current. The most recent examples include the increasing tension over shared
water resources between Pakistan and India, and between Israel and Lebanon. The
dispute between Pakistan and India regarding Jammu and Kashmir has been
aggravated by the controversy over the Indian Baghliar hydroelectric project on the
Chenab river, one of the rivers of the Indus Basin. Pakistan wants the matter to be
referred to the “neutral expert” provided for in the Indus Waters Treaty. Some Indian
legislators argued in favor of abrogating this treaty altogether.
Israel has been threatening military action against Lebanon over the latter’s use
of the Wazzani, a tributary to the Jordan river. Israel strongly opposes Lebanon’s
pumping of an additional 4 million cubic meters, for a total of about 10 million cubic
meters per year, to supply drinking water to its border villages. It is noteworthy that
in both cases the parties to the dispute invoke the rules of international law in support
of their respective positions.
Singapore and Malaysia for years now have been locked in dispute over the two
water agreements concluded at the time of separation: the 1961 Tebrau and Scudai
Water Agreement, and the 1962 Johor River Water Agreement, which allow Singapore
to draw up to 330 million gallons a day (mgd). Both countries have been embroiled in
a controversy concerning the price Malaysia receives from Singapore for raw water
and pays for treated water. In August 2002, Niger and Benin agreed to bring to the
International Court of Justice (ICJ) their territorial dispute involving a boundary river.
Disputes over water may have various causes. Usually, problems arise where
there is insufficient water to meet existing or new needs. A “conflict-of-uses” situation
often arises where the quantity or quality of the water is such that competing
demands of watercourse states clash with each other.
The most typical scenarios of “conflict-of-uses” are described below.
1.1. Conflict Between Existing Uses

Different scenarios may lead to such a conflict. The most typical is when an aggregate
demand on water by different users and uses of a shared watercourse exceeds the
total volume of available water. In some extreme cases this can result in a situation
where not only are some users, usually downstream, prevented from enjoying their
fair share of the beneficial uses but also the water resource itself (a river or an
aquifer) is threatened by over-exploitation. In the Aral Sea basin, the removal of
water for irrigation from its two main rivers – Amu-Darya and Syr-Darya – reduced
the annual water inflow into the Sea from approximately 69 km3 in the 1960s to about
5 km3 in the late 1980s. Unsurprisingly, the population in the low reaches of the two
rivers in Uzbekistan and Kazakhstan, as well as the Sea itself, suffered the most.
22
A conflict between existing uses may arise from a significant seasonal demand
variance. This is the main cause of ongoing controversy in the Syr-Darya river basin
between Kyrgyzstan, an upstream country, and its two downstream neighbors,
Uzbekistan and Kazakhstan. The current system of transboundary water resources
management, which gives priority to irrigated agriculture downstream, was inherited
from the former Soviet Union. This was possible because the centralized Soviet
planning system compensated upstream countries for releasing impounded water for
agriculture by providing fuel and energy supplies. Hydropower generation played a
subordinate role. Since independence, this system has been replaced by an ad hoc
water distribution and water/energy exchange mechanism, whereby the upstream
states are to be compensated by their downstream neighbors for limitations on
hydropower generation in winter to maximize the volumes of water available for
irrigation in the summer. However, this mechanism (provided for under the 1998
Agreement on Use of the Water and Energy Resources of the Syr-Darya River Basin)
has failed to achieve unreservedly its stated objectives. On a number of occasions
Kyrgyzstan was compelled to release water in order to produce hydropower during
winter seasons, thus not only reducing the amount of water available for irrigation but
also causing floods in the downstream regions.
A conflict of uses often results from the discharge of pollutants, which can also
be considered as one of the in principle allowable uses of a watercourse that affects
other users and uses. Changes in natural conditions, such as a drought leading to a
diminished flow of water, may also bring existing uses into conflict.
In this respect a question may arise as to what uses are allowed? Allowable uses,
as defined by the UN International Law Commission, are all uses “in the broadest
sense.” It is generally accepted that unless states agree otherwise, no use has an
inherent priority over another, which also applies to navigation. However, there are
examples when watercourse agreements establish prioritized lists of protected uses,
as was done in the 1909 Canadian–US Boundary Waters Treaty (BWT). It is
noteworthy that the 1909 Treaty sets the “ordinary use for domestic and sanitary
purposes” outside the treaty regime, meaning that such uses are allowed first call on
the water without the consent of the International Joint Commission.
Increasingly international water law, in the first
instance the 1997 IWC Convention, singles out “vital Water for vital human needs
is “drinking water sufficient
human needs” as a special category of uses that should
to sustain human life and
be given a sort of priority over other uses. The 2000 water required for the
SADC Revised Protocol refers to “domestic use,” production of food in order
defining it as the use of water for drinking, washing, to prevent starvation.”
cooking, bathing, sanitation, and stock watering (Statement of Understanding
purposes. Priority is accorded to those uses needed to pertaining to the text of
meet vital human needs. This can be justified on both Article 10, 1997 UN IWC
ethical and economic grounds. First, it is recognized Convention)
that such uses consume a relatively insignificant
amount of water, when considered in the context of the basin overall. Second, vital
human needs have to be met in order to sustain and preserve human life itself, which
should give them automatic priority vis-à-vis other competing uses.
A different kind of conflict may arise in a situation where the total sum of
existing uses exceeds the bearing capacity of a watercourse: a conflict between
human consumption and the environment. Ecological use, as a special sort of water
“use,” is gradually being recognized in international law as having a certain priority
over other demands on water: “no river, no water.” Provisions requiring the
preservation of “minimum stream flows” can be found in some recently adopted
international treaties (1995 Mekong Agreement, 1998 Convention on the Portuguese–
Spanish River Basins). In Central Asia, along with the five basin states, the Aral Sea,
23
including the deltas of the inflowing rivers, has been designated as a “water user,”
entitled to a certain share of limited water resources of the region.
The maintenance of a minimum stream flow protects the ecological, chemical,
and physical integrity of an international water resource. This is not incompatible with,
and is subject to, the primary international water law rule of “equitable and
reasonable utilization.” The beneficial uses of in-stream flows include: maintenance of
fisheries and other aquatic life; drinking water; and maintenance of estuaries and of
river channel integrity. The quantity of water in a transboundary resource is causally
related to other beneficial uses, if any of the above beneficial uses is affected by a
diminution of the flow.
To sum up, in all cases when a conflict of uses arises, adjustments or
accommodations may be required under the rule of equitable and reasonable
utilization to preserve each state’s right to an equitable share of the beneficial uses of
the transboundary watercourse. This is usually achieved through special agreements
between riparian states.
1.2. Conflict Between Existing and New Uses (Planned Measures)

This is another typical situation where existing uses are threatened either by their
increase by one or more watercourse states or by new proposed activities, the so-
called planned measures, defined broadly to include “new projects or programs of a
major or minor nature, as well as changes in existing uses of an international
watercourse.” Such new activities may and often do interfere with existing uses.
Again, the conflict of uses must be resolved on the basis of equity.
Existing uses do not enjoy automatic protection; international water law does not
recognize the right of “prior appropriation” or any “vested” or “historic rights” with
respect to transboundary water resources. Present uses by one watercourse state
may even become inequitable if, in the light of changing circumstances, their
continuation prevents another watercourse state (or states) from equitably sharing
the benefits of the water resource utilization. An existing use is legally protected only
so long as “the factors justifying its continued existence are not outweighed by factors
showing desirability of its modification or termination” (ILA commentaries to the 1966
Helsinki Rules).
1.3. Conflict Over Future Uses

Should water resources for possible future needs of a co-riparian be set aside? This
frequently asked question must be answered in the negative: a state may not
“reserve” water for future use. Possible future uses should be distinguished from
planned measures. The latter are certain works that will occur if permissible; the
former are uncertain and not concrete proposals. In fact, a conflict may arise if a state
that currently has no immediate need to utilize a transboundary water resource insists
on preserving its “share” of the water for the future, where other beneficial uses are
adversely affected as a result.
International practice does not accept a “reservation” of water for uncertain
future needs, even if a state has a right to an equitable share of the water resource.
To do so would preclude other states from beneficially using the “reserved” waters not
currently required by the first state. In situations where water resources are scarce
and in great demand, this could be wasteful and unjust. Thus, the mere possibility of
a future claim cannot prevent the continuance of an existing use. On the other hand,
the fact that a riparian state does not presently use its “share” of water resources
does not prejudice its right to claim it in the future. Otherwise, the first user would be
granted a vested right in all the waters it is currently using.
24
Existing uses
Future uses Vital human
needs
New uses
Conflicts of
Quality
Uses
Emergency Quantity
situations
Figure 4. Water conflicts of use
1.4. Conflict as a Result of Emergency Situations

Emergency-related conflicts may arise as a result of industrial accidents or natural
disasters (such as floods) if they are related to human activities. One such example is
the Baia Mare gold mine tailings dam collapse in Romania, which caused the spillage
of 100,000 cubic meters of cyanide containing waste into the Lapus–Tisza–Danube
rivers system and affected downstream countries, first of all Hungary and Serbia.
Disasters may be caused by the release of excessive amounts of water from upstream
reservoirs, especially when combined with natural floods. Recently, floods have been
caused downstream in the Syr-Darya river basin by significant discharges of water for
hydropower production from the upstream reservoirs. States in general have a duty to
cooperate in dealing with water-related emergencies. They must notify each other if
there are reasons to believe that an emergency may cause harm to other riparian
states. However, there is no international customary legal obligation that would
require a state to prevent or mitigate natural conditions on its territory, which
contribute to naturally occurring hazards, such as flooding.
2. “WATER CONFLICTS” AND “WATER DISPUTES”: LEGAL

DEFINITION
The PCCP project has adopted the term “conflict” as an all-embracing notion covering
the entire spectrum of possible situations where the interests of states may collide:
from minor differences in opinion to the other extreme of situations of tension and
hostility that may threaten international peace and security. While not entirely averse
to the notion of “conflict” as a generic conceptual underpinning of the discourse
involving all relevant disciplines, international law traditionally uses the word “dispute”
as a term of art. It should be noted, however, that these two terms are inextricably
linked. Law dictionaries typically define the term “dispute” as a “conflict or
controversy; a conflict of claims or rights” (e.g. Black’s Law Dictionary, 4th ed., 1951).
Although this study does not purport to provide the ultimate definition of the
term “water dispute,” certain comments may be appropriate in order to establish a
25
context for further discussion. First of all, properly defining the term “dispute” is not
simply a matter of semantics but may have serious legal implications. In some cases
the existence of the dispute must be established prior to the activation of certain
means of peaceful settlement, such as international adjudication. However, even
among international lawyers there remains some disagreement over the precise
meaning of this term.
International treaty practice is not consistent in its use of terms and thus is not
very helpful. One international agreement refers to the “questions or matters of
difference” (1909 BWT), another to “differences or disputes” (1995 Mekong
Agreement), a third distinguishes between “questions,” “differences” and “disputes”
(1960 Indus Waters Treaty) without defining them. The World Court’s opinion on what
constitutes an international dispute may be of some help. In the PCIJ decision in the
Mavrommatis Palestine Concessions case the term “dispute” was defined as “a
disagreement on a point of law or fact, a conflict of legal views or of interest between
the parties.” Yet, even this definition is far from precise and can be interpreted
broadly enough to include any kind of interstate controversy. It has been argued that
in order to be resolved by reference to international law the dispute must be
“justiciable.” A mere conflict of interests between states, as distinct from a conflict
over their respective rights, may make the dispute “non-justiciable.”
Thus, the distinction is often drawn between legal disputes (primarily involving
legal issues) and any other kind of dispute. This distinction may be of importance in
cases involving international judicial procedure. In certain situations an international
tribunal may be unable to resolve a dispute because such a dispute is not capable of
being settled by the application of principles and rules of international law, or in other
words be unsuitable for adjudication. This, however, does not mean that disputes
(even “non-justiciable”) cannot be resolved through other means of peaceful
settlement, including involvement of a third party.
Second, it is important to recognize that not all conflicts or disputes involving
water should be regarded as “water disputes.” They can hardly include controversies
where water is an instrument of conflict rather than its object. It is doubtful whether
intentional or inadvertent destruction of water supply facilities, dykes, or other water
infrastructure during an armed conflict will make this conflict “water related.” The
same can be said about territorial disputes regarding boundary rivers, so long as they
do not involve questions of water utilization. Disputes over navigation are also of
limited relevance, except in situations where other water uses either affect
navigational uses or are affected by them.
Thus, for the purpose of this study the term “water dispute” will be limited to
those conflicts involving the use of transboundary water resources, both surface and
ground waters. However, it will be treated broadly enough to cover any conflict of
views or of interests that takes the form of opposing claims between the states
involved, “justiciable” as well as “non-justiciable” disputes, which can be resolved
through all available means of dispute settlement.
3. TRANSFORMING CONFLICT INTO COOPERATION:

MECHANISMS
Where a water dispute arises, the watercourse states are expected to resolve it in
such a way as to achieve an equitable result. In order to do that, they have to go
through a process of reconciling their opposing views and conflicting interests in order
to find some middle ground. Ideally, the ultimate outcome of this process should be a
mutually acceptable and long-term solution that will form the basis of future
cooperation. Another option, less attractive than the first but still preferable to the
26
continuation of the conflict in perpetuity, is a temporary compromise helping to
prevent the intensification of the controversy.
It has been suggested that three distinct phases in any water conflict could be
identified: conflict creation, conflict management, and conflict resolution. In the first
phase the focus should be on diagnosis, anticipation, and prevention, including
problem architecture and fact-finding. The second phase requires the development of
confidence and trust. The third phase involves consensus building and depolarizing of
conflicting interests.
International practice has developed a range
of mechanisms – both “diplomatic” and “legal” UN Charter
(judicial) – which states have used extensively to
settle their controversies over different matters, Article 33 contains an extensive
including water. Article 33 of the UN Charter but not exhaustive list of dispute
contains an extensive but not exhaustive list of settlement techniques available to
dispute settlement techniques available to states. states. These include negotiation,
These include negotiation, inquiry, mediation, enquiry, mediation, conciliation,
conciliation, arbitration, judicial settlement, and arbitration, judicial settlement,
and resort to regional agencies or
resort to regional agencies or arrangements. If a
arrangements.
conflict arises, states must refrain from any action
that may aggravate the situation so as to
endanger the maintenance of international peace; they must cooperate with one
another, and settle disputes on the basis of the sovereign equality and in accordance
with the principle of free choice of means.
As will be seen later, the array of dispute settlement means is very broad, and it
is up to the states themselves to decide which of these mechanisms they employ. The
choice of the means of dispute settlement may depend upon many factors: the nature
of the dispute (e.g. technical or legal or a bit of both, as is usually the case), the
existence or lack of previous agreements between the parties, the history and
character of their relations in general (friendly or hostile), even the cultural traditions
of individual nations and regions. Some water controversies required the conflicting
states to pass through a number of dispute settlement mechanisms, in escalating
order, before a solution was reached, as in the Danube river case. The next part will
review those mechanisms and provide a summary of how they work.
3.1 Negotiation
Negotiation is the means of dispute resolution most often employed by states when
trying to resolve any international conflict, including those over transboundary water
resources. Depending on the issues at stake and the number of states involved,
negotiation can take different forms, from bilateral talks and diplomatic
correspondence to an international conference. It can be used at all stages of the
conflict. Diplomatic negotiations are sometimes preceded by the meetings of experts
(such as the “Picnic Table Meetings” between
Israeli and Jordanian water experts prior to Negotiation
formal negotiations). It has been suggested that
where an impasse in negotiation exists, states The Parties to the dispute in the
may consider separating the question into Gabþikovo-Nagymaros case are
component parts or agreeing to a procedure to actively involved in confidential
solve the problem rather than a definitive negotiations following the ICJ
settlement of the legal interest. orders to do so, and Slovakia’s
Negotiation was used at the outset and in request to submit the dispute again
to the ICJ. (Communication from
ongoing attempts to finally resolve the Danube
Information Officer, ICJ, May 30
river dispute between Hungary and Slovakia. 2002).
Israel and Jordan negotiated their peace treaty,
27
including its water-related provisions, in two parallel arenas: multilateral, which
involved representatives of other interested states, and bilateral. Multilateral talks
were not aimed at resolving the dispute but rather at enhancing the environment for
the bilateral negotiations, although with mixed results (Jordan River Case Study, Part
II).
Formal negotiations may sometimes be preceded by consultations, which usually
involve the exchange of views and information. Consultation is normally an ad hoc
procedure, but it also can be provided for in the watercourse agreement, either within
an institutional mechanism or as a bilateral dispute prevention and resolution tool.
Consultations are usually envisaged with regard to planned measures that may affect
the interests of other watercourse states. “Prior consultations” allow the parties
concerned to jointly discuss and evaluate the impact of the proposed activity on their
uses of water. As a mechanism of conflict prevention, consultation creates an
opportunity for project adjustment and accommodation before plans proceed. The
1997 IWC Convention contains more than a dozen provisions that recommend
consultation.
The Nile River Basin Initiative can be considered as an ongoing multilateral
consultation. Its components include the outputs of the series of meetings, the work
of the panel of experts entrusted with advising on the elaboration of the Nile river
basin cooperative framework, and a series of conferences held in each of the ten basin
countries. The process brings together experts from the Nile river basin as well as
international and external support agencies and helps the participants to exchange
views and opinions on these countries’ positions and plans concerning water resources
of the basin. The purpose of this process is to foster basin-wide cooperation and to
contribute to confidence building, with an ultimate goal of reaching a formal
agreement on the sustainable and equitable utilization of the Nile waters.
Bilateral negotiation may not always be the most
effective way of resolving disputes, especially where the “The go-between wears
parties are unequal. One party may deny that a dispute out a thousand
exists, advance unreasonable claims or drag its feet. sandals.”
Parties may have uneven bargaining powers or unequal (Ancient Chinese
legal and technical expertise in the matters involved. In proverb)
such cases impartial third-party involvement may be the
only viable solution. Negotiations are considered merely as the first step that states
usually take in resolving their dispute. If they fail or if the parties are unable to enter
into negotiations altogether, other means of dispute settlement are available to them,
and all are based on the involvement of a neutral third party. It has been reported
that in November 2002 Malaysia decided to stop negotiations with Singapore for a
price review of water supplied to Singapore and is to seek legal recourse in resolving
the controversy.
3.2. Good Offices and Mediation

A third party offering good offices to the conflicting states acts a ‘go-between’ in order
to persuade them to enter into negotiations. Neutral states, joint bodies, and inter-
national organizations, as well as individuals, can offer good offices. Once the
negotiations have started, the functions of good offices are usually deemed to be
completed.
The World Bank initially offered its good offices to India and Pakistan in their
conflict over the Indus river waters. As will be seen later, its role gradually extended
to a more dynamic and in many respects decisive involvement in the resolution of the
dispute.
Mediation, as compared with good offices, is a step towards more active third-
party participation in the negotiations. A mediator provides assistance to the disputing
28
parties in finding a solution. The Israeli–
Good Offices in the Indus River Jordanian bilateral negotiations were
dispute combined with informal discussions where
the American and Russian diplomats acted
In 1951 President Black of the World Bank as “sponsors” and “facilitators,” or in other
offered the Bank’s “good offices for words mediators. The facilitators made an
discussion of the Indus water dispute and
effort not to impose their solutions and
negotiation of a settlement.” Both parties
had to accept three preliminary remain “honest brokers,” from which one
conditions: or both sides from time to time sought
informal help.
ł The Indus water resources are In the Danube river dispute between
sufficient to meet all existing uses and Hungary and Slovakia, the Commission of
future needs. the European Communities offered to
ł The water resources should be mediate when the parties failed to resolve
cooperatively developed and used to their disagreements on the future of the
promote economic development; the project through bilateral negotiations. The
basin was to be viewed as a unit.
preliminary agreement of the conflicting
ł The problem should be solved on a
functional, not political plan, states to mediation is not mandatory; but
independent of past negotiations, without their consent mediation will never
claims, and political issues. be successful. It is not unusual for the
mediator not only to facilitate the
discussion but also to suggest the terms of settlement. The boundaries between good
offices, mediation, and conciliation are sometimes blurred, and one procedure can
often lead to another. The World Bank’s role in the Indus river dispute is a good
example of such escalating involvement. In that case the World Bank’s participation
increased to the point that it was actively involved in finding a solution by providing
significant financial assistance to the parties on condition of their consent to the terms
of settlement. The World Bank drafted and brokered the final agreement, which was
signed by the heads of the two states and by the President of the World Bank with
respect to certain provisions of consequence for the Bank. As has been reported, in
December 2002, for the first time since the conclusion of the Indus Waters Treaty,
Pakistan formally contacted the World Bank, seeking its help as a guarantor and
broker of the treaty. The Bank was asked to intervene and assist in finding a solution
to the ongoing dispute with India regarding the construction of the Baghliar
Hydropower Project.
3.3. Inquiry and Fact-finding

Many international disputes arise from disagreements on questions of fact. Inquiry
and fact-finding are procedures specifically designed to produce an impartial finding of
disputed facts. The ILC study of legal issues concerning dispute prevention and
resolution established that fact-finding, as a course of action, will frequently resolve a
dispute before any binding process is necessary.
Fact-finding, or inquiry, allows states to refer “The theory that genuine inquiries
questions to panel of experts for impartial third- (restricted to fact-finding) do not
party investigation of factual or technical matters meet with the reluctance of states
before diplomatic negotiations. Under the 1907 to allow interference with their
Hague Convention for the Pacific Settlement of sovereignty to the same extent as
International Disputes, a commission of inquiry inquiries combined with elements
can be established “to facilitate a solution . . . by of conciliation has not been
means of impartial and conscientious confirmed by international practice
during the last eighty years.”
investigation.” But its role is limited to providing
(K.-J. Partsch, in Malanczuk
“a statement of facts,” which should not have the (7th ed.) p. 278.)
character of an award.
29
Examining issues initially at the technical level often through joint institutions
(made up of the representatives of basin states) is advantageous because experts in
the field are reporting and making recommendations, minimizing the potential
adverse impact of political factors and considerations. The Canada–US International
Joint Commission has successfully used this approach on numerous occasions. When
confronted by controversial issues of water utilization or pollution that require
technical expertise, the two governments usually refer them to the IJC. The
Commission’s course of action is to appoint a technical advisory board of experts to
collect the necessary data, study the problem, and recommend solutions. Thus, as
early as in 1912, the IJC was asked to investigate and report on the scale of pollution
of boundary waters causing harm to public health and to recommend means of
remedying it. In the late 1980s, when a Canadian company’s proposed mining project
in the upper reaches of the Flathead river met serious objections from the
downstream users in the United States, the IJC, at the request of the two
governments, created a Study Board to assess the project and its possible
implications. In that case the IJC based its decisions against the project on the
technical assessment of its Study Board. One of the features of the fact-finding
process under the IJC is that investigation is usually accompanied by public hearings,
which allow the Commission to verify the technical board’s findings prior to finalizing
its own report and recommendations.
The Danube river dispute offers another example where the fact-finding
procedure was used extensively to assist the disputing parties. Hungary and Slovakia
agreed in 1992 to establish a fact-finding commission that included the Commission of
the European Communities. The commission was asked to report on “Variant C” (a
provisional solution proposed by Slovakia), convene an independent group of experts
to report on emergency measures, establish and implement a temporary water
management regime for the Danube, and agree the terms of the submission of the
dispute to the International Court of Justice.
Agreement was reached to establish a tripartite group of experts. The group
included one expert from each state and three experts from the Commission of
European Communities. The group was requested to provide reliable and undisputed
data on the most important effects of the water discharge and the remedial measures
already undertaken, as well as to make recommendations for appropriate measures.
Although the experts designated by the Commission recommended several measures,
the parties could not agree on them. Negotiations continued and eventually the
parties reached an agreement “Concerning Certain Temporary Technical Measures and
Discharges in the Danube and Monsoni Branch of the Danube.” Being unable to
resolve their dispute finally through negotiations and mediation, they agreed to
submit the case to the International Court of Justice.
The 1997 UN IWC Convention has no binding dispute resolution mechanisms
(such as arbitration and adjudication, which are optional), but does include a
compulsory fact-finding procedure, which can be invoked at the request of any state
party to the convention, following failed negotiations (Article 33).
3.4. Conciliation
In conciliation, an impartial third party is requested by the conflicting states to help
them resolve the dispute by examining the facts and suggesting the terms of a
settlement likely to be acceptable to them. Thus conciliation may combine elements of
mediation and inquiry. However conciliation is a more formal procedure, usually
performed by a commission of the representatives of the parties to the dispute as well
as independent nationals of other states. A sole conciliator may also carry out
conciliation. The conciliator seeks to establish objectively the facts and applicable law
in a dispute through independent investigation, which is followed by reporting of
30
findings and recommendations to the parties, who may
accept the recommendations or chose another form of Conciliation “is a process of
formulating proposals of
dispute settlement. There are a number of models of
settlement after an
conciliation that states may adapt to their particular investigation of the facts and
circumstances, including that proposed in the ILA 1966 an effort to reconcile opposing
Helsinki Rules. (Article XXXIII and Annex, 1966 contentions, the parties to the
Helsinki Rules. Annex, Model Rules for the Constitution dispute being left free to
of the Conciliation Commission for the Settlement of a accept or reject the proposals
Dispute). In fact, the fact-finding procedure contained formulated”
in the 1997 UN IWC Convention is close to a Judge Manley Hudson (1944)
conciliation process, since it provides for the rendering
of a recommended solution to the dispute.
3.5. Institutional Mechanisms

Transboundary water controversies and disputes are often resolved under the
auspices of various international organizations and bodies, such as river basin
commissions established by multilateral or bilateral agreements. A number of such
mechanisms have been created for individual river basins or watercourses. Thus, the
Canada–US International Joint Commission (IJC) includes among its responsibilities
reporting on the findings of joint studies and recommending decisions on the
questions of differences referred to it by the two governments. Under the 1944
Mexico–US agreement related to the Colorado, Rio Grande, and Tijuana rivers, the
parties established the International Boundary Waters Commission, which continues
to resolve disputes over waters shared by the United States and Mexico through a
series of decisions adopted as “Minutes,” which are binding. Under the UNECE
watercourse regime, the Meeting of the parties is one of the bodies responsible for
ensuring implementation of the 1992 Helsinki Convention, which calls for the
establishment of joint bodies to manage shared basins. These and other examples of
state practice involving institutional mechanisms are discussed in more detail in Part
Four.
3.6. Arbitration
3.6.1. Overview
Compared with all other means of dispute resolution involving impartial third party,
arbitration and adjudication are regarded as “legal” – as compared with “diplomatic” –
means of settlement. However, as will be seen from the further discussion, arbitration
differs from adjudication in many respects, the former being a more flexible procedure
where all the crucial issues of substance and process are left to the discretion of the
parties.
Arbitration, like adjudication, requires the prior consent of each party to the
dispute. This is usually done through a special agreement between the parties – a
compromis – unless there exists an international (multilateral or bilateral) agreement
in force binding on the parties to the dispute that provides for compulsory arbitration
(as in the case of the 1998 Rhine Convention). Having agreed to submit their dispute
to arbitration, the parties to the process have a considerable degree of choice
concerning the seat and the composition of the arbitral panel, the procedure to be
followed, the questions to be addressed by the tribunal, and so forth. Generally, each
party appoints their respective arbitrator, and these two then select a third (agreed to
by the parties) for the panel (sometimes called “an umpire”). The arbitral decisions
are taken by majority vote, unless the parties have agreed to refer their dispute to a
sole arbitrator. The decision, which can be kept confidential, is binding on the parties
who, however, can agree on an appeal procedure prior to arbitration.
31
Apart from the well-known Lake Lanoux dispute between France and Spain,
arbitration has been invoked on a number of occasions to resolve water controversies.
In 1870, a tri-partite Commission was established to delineate the boundary between
Afghanistan and Persia in the delta of the Helmand river and to allocate its waters for
irrigation in the border regions. The dispute was resolved on the basis of the decision
rendered by the British member of the Commission, Major-General Sir Frederick
Goldsmid, who acted as a single arbitrator. Both parties accepted the decision,
although thirty years later they had difficulties with its implementation. The second
award, by Colonel Sir Henry McMahon, slightly changed the boundary and provided for
more precise allocation of water between the two countries. Although both parties
agreed with the boundary change, the ruling on water allocation was rejected by
Persia as being inconsistent with the previous award by Goldsmid.
In 1888, US President Grover Cleveland acted as arbitrator in the boundary
delimitation dispute between Costa Rica and Nicaragua concerning the San Juan river.
In 1945, the Zarumilla river boundary dispute between Ecuador and Peru was
resolved through arbitration by the Chancellery of Brazil. In 1965, the United States
and Canada established an arbitral tribunal to dispose of claims by American nationals
related to flood and erosion damage to their property, allegedly caused by the
construction of a Canadian dam (Gut Dam) across the international section of the St
Lawrence river.
It has been suggested that compulsory dispute resolution through arbitration
creates an incentive for states to utilize diplomatic means, citing the process leading
to the US–Mexico boundary waters agreement settled by negotiation, because of the
compulsory obligation on the parties to go to arbitration (Laylin and Bianchi, 1959).
Traditionally, binding settlement procedures are to be resorted to after all other
means of dispute resolution have failed. Most of the present day watercourse
agreements provide for arbitration as a means of dispute settlement, either as an
optional mechanism (the 1992 Helsinki Convention or the 1998 Syr-Darya Agreement)
or as a compulsory procedure for disputes that the parties have failed to resolve by
other means (the 1909 Boundary Waters Treaty, the 1994 Danube Convention, or the
1998 Rhine Convention).
3.6.2. The Permanent Court of Arbitration

States appear increasingly interested in using the Permanent Court of Arbitration
(PCA) as a vehicle for dispute resolution proceedings. The PCA is not a “court” per se,
but rather a special mechanism, the primary purpose of which is to assist states in
settling their international controversies. It was created in 1899 under the Hague
Convention for the Pacific Settlement of International Disputes. Along with setting up
arbitral tribunals it also offers services for fact-finding and inquiry commissions, good
offices, mediation, and conciliation. Rules for good offices and mediation, inquiry, and
arbitration were set out in more detail under the 1907 Hague Convention. The
renewed interest in the PCA as a forum for dispute resolution can be seen in the
pattern of recent ratification of the founding
instruments.
The PCA is empowered to provide its services to Permanent Court of
all arbitration cases submitted to it by agreement of Arbitration
the parties to a dispute and is accessible at all times.
It has recently updated its procedures to respond to ł established in 1899
ł located in the Hague
current international practice. In addition, the PCA has
ł 92 Members
developed model clauses for assisting states to draft ł 2001 Optional Rules for
dispute resolution clauses for international Environmental Disputes are
agreements. The PCA decided not to draft a model non-mandatory
clause for fact-finding. The expert’s report
32
recommended a model clause closely following the procedure contained in Article 33
of the 1997 UN IWC Convention.
Trying to reinvent itself, the PCA adopted new rules for disputes relating to
natural resources or the environment in 2001. The International Bureau began work
on addressing the main gaps in prevention and settlement of environmental disputes
in June 1996. The principal consideration in undertaking this task was the absence of
a unified forum to which states, intergovernmental and non-governmental
organizations, multinational corporations, and even private parties can have recourse
to when they have agreed to seek resolution of disputes concerning environmental
protection and conservation of natural resources.
The 2001 Optional Rules for Environmental Disputes are non-mandatory and
designed to facilitate arbitration pertaining to disputes that involve public international
law and the utilization of natural resources and environmental protection. The Rules
establish procedures for the selection of arbiters, provisions for confidentiality, general
procedure, evidence, and interim measures, define the role of experts, awards,
applicable law, and interpretation and correction of the award. Parties may designate
the law to be applied by the tribunal, including a request that the case be decided ex
aequo et bono. The PCA will establish a list of experts in the field, nominated by the
Members of the PCA, which the parties and the tribunal may draw upon. Parties and
the tribunal are not limited, however, to the experts listed and may draw from
external sources. In the absence of an agreed procedure, the 2001 Optional Rules for
Environmental Disputes are sufficient to address controversies over resource
utilization and transboundary damages, either as a guide to convene an ad hoc
tribunal or under the aegis of the PCA, especially given the integration of expert and
technical evidence, which will be the primary component of this type of dispute.
Although in the past the PCA has not been involved in settling water-related
disputes, the situation is beginning to change. The International Bureau of the PCA
acted as Registry in the arbitration between France and the Netherlands pursuant to
the 1976 Convention on the Protection of the Rhine Against Pollution by Chlorides and
the Additional Protocol of 1991. In 2001, arbitration proceedings commenced before a
three-member arbitral tribunal chaired by Professor Skubiszevski. According to some
recent reports Singapore and Malaysia are also considering taking their dispute over
the Tebrau and Scudai Rivers Water Agreement and the Johor River Water Agreement
to the PCA. It may be expected that the adoption of the new rules regarding
resolution of environmental and resource-related disputes will further encourage
conflicting states to resolve their controversies through arbitration or other peaceful
mechanisms under the auspices of PCA.
3.7. Adjudication
3.7.1. Overview
The last option available to the parties to a watercourse dispute is to submit it to a
standing judicial body: an international court. This method differs from other means of
dispute settlement in that neither the composition of the court nor its rules and
procedures depend upon the discretion of the conflicting states. International practice
over the last three decades demonstrates an increasing popularity of international
courts as a means of last resort. Along with the most prominent judicial body, the
International Court of Justice (ICJ) in The Hague, there exist quite a number of special
courts, such as the Law of the Sea Tribunal in Hamburg, as well as regional courts,
like the European Court of Justice or the SADC Tribunal. Not only has their number
grown, but the total number of disputes submitted before these courts has also
significantly increased. This demonstrates a growing willingness by states to resolve
their conflicts through binding judicial settlement. The Danube case is one example of
33
how watercourse states can take a matter before the ICJ. Its role is discussed in more
detail below.
3.7.2. The International Court of Justice

The International Court of Justice was established
in 1945 as the principal juridical organ of the The World Court
United Nations. The ICJ, which is also called “the
World Court,” replaced the Permanent Court of ł Principal judicial organ of the
International Justice. UN
Only states may be parties to disputes brought ł Successor to the PCIJ
before the Court. Their consent to appear before ł 15 permanent Judges
the Court may be obtained in a number of ways. ł Freshwater related disputes:
First, this can be done by a special agreement – River Oder case (1929)
– River Meuse case (1937)
between the parties to a dispute. In the Danube
– Danube case (1997)
river case, Hungary and Slovakia concluded such an – Kasilili/Sedudu Island
agreement whereby they agreed to submit specific (boundary river) case
questions to the ICJ concerning their unresolved Botswana/Namibia (1999)
controversy. Second, if the disputing states are – River Niger boundary
parties to an already existing international treaty dispute Benin–Niger
that provides for compulsory adjudication by the (pending)
Court, this could constitute the basis for consent to
adjudicate, should other means of settlement have
been exhausted. Under the 1994 Danube River Convention, all disputes concerning its
interpretation and application and not resolved through negotiations must be
submitted either to arbitration or to the ICJ. A third basis for consent may occur
where the disputing states have, by unilateral declaration, accepted compulsory
jurisdiction of the Court independently of each other (Article 36(2) Statute of the ICJ).
Adjudication
Arbitration
Conciliation
Fact-Finding / Inquiry
Mediation
Good Offices
Negotiation
Consultation
Figure 5. Dispute avoidance mechanisms
The Court has extensive practice in resolving boundary delimitation disputes,

which involves the application of equitable principles and often concerns
transboundary watercourses. Three out of four of the major “water” adjudications
were heard by the World Court. The Statute of the ICJ allows for parties to a dispute
34
to agree to establish a special chamber to hear their case. The parties may agree to
the number of judges and ad hoc members of the chamber. Special Chambers have
been used to settle boundary and territory questions, analogous to cases involving an
allocation or use conflict. The Chamber for Environmental Matters was established in
July 1993 in order to deal “efficiently” with cases related to the protection of the
environment and matters of environmental law. Parties may agree to submit the case
to the Chamber rather than the full Court. Significantly, the parties to the Gabþikovo–
Nagymaros case, which clearly pertains to a matter affecting the environment, chose
to submit the dispute to the full plenary Court rather than to the (eight-member)
Chamber. Parties may not wish to use the Chambers because most disputes related to
the use of a transboundary watercourse will involve questions of sovereignty, treaty
and customary law, and not exclusively environmental issues.
4. CASE STUDIES
Some well-known international water disputes will be examined in this section to show
how water conflicts arise and what means and mechanisms of conflict resolution are
employed by states to resolve them. There is one common feature in all the cases
selected, which makes them in certain respect different from the adopted PCCP
analytical framework. Unlike the PCCP model (“conflict–agreement–cooperation”), in
all these cases it was the controversy over an already existing international treaty (its
interpretation or performance) that led to the dispute. Thus, the establishment of
some kind of cooperative framework preceded the dispute, which demonstrates again
that agreement as such is not the end in itself and that its implementation may result
in new conflicts. The disputes considered in this section include: the case relating to
the Territorial Jurisdiction of the International Commission of the River Oder, the
Diversion of Water from the Meuse, and the Gabþikovo–Nagymaros case.
4.1. The River Oder Case

The River Oder case concerned the interpretation of the scope of an international
treaty, the 1919 Peace Treaty of Versailles. The Treaty, among many other matters,
“internationalized” several navigable rivers of Europe (the Danube, the Moselle, the
Rhine, the Elbe, the Oder) opening them for navigation by all nations.
The International Commission established under the Treaty of Versailles began
work on defining the regime that would govern navigation on international rivers in
March 1920. The dispute arose from a disagreement between Poland and other
members of the International Oder Commission over the question of its territorial
jurisdiction. The principal issue was whether navigable stretches of the Warthe
(Warta) and the Netze (Noteü) rivers, both tributaries of the River Oder, should be
opened for international navigation within Polish territory. These rivers constituted
part of a river system “which naturally provides more than one state with access to
the Sea.” The tributaries were themselves transboundary rivers.
Contrary to the opinion of other members, Poland maintained that the Warthe
and Netze rivers should be internationalized only up to the Polish border. In 1924, the
Commission informed the governments about the failure to reach agreement. The
British and the French governments referred the matter to the Advisory and Technical
Committee for Communications and Transit of the League of Nations, which had the
right to nominate a Committee of Inquiry. A majority of the Committee adopted a
“suggestion for conciliation,” which was communicated to the International Oder
Commission. Poland rejected the attempt at conciliation. Following that, the
International Oder Commission informed the governments that the project had ended.
The Advisory and Technical Committee also advised the interested states that the
35
Source: Perry-Castañeda Library Map Collection - http://www.lib.utexas.edu/maps/index.html
conciliation procedure had closed without resolving the matter. The governments
concerned empowered their respective delegates in the International Oder
Commission to reach an agreement on submitting the matter to the Permanent Court
of International Justice. A special agreement between Great Britain, Czechoslovakia,
Denmark, France, Germany, Sweden, and Poland was signed on October 30 1928. The
Court was asked to answer the following questions:
Does the territorial jurisdiction of the International Commission established

under the Treaty of Versailles extend to the Warthe and Netze in Polish
territory?
If so, what law governs the establishment of the upper limit of the territorial
jurisdiction?
The six governments insisted that the navigable stretches of the Warthe and the
Netze, even those lying in Polish territory, fell within the definition of “international”
contained in Article 331. Poland claimed that
the upper limit of the jurisdiction of the
International Commission was the Polish Article 331.
border with Germany. In the view of Poland, “The following rivers are declared
the portions of the Warthe and Netze that international: the Elbe (Labe) from its
formed the border with Germany, giving sea confluence with the Vltava (Moldau)
access to more than one state, were and the Vltava (Moldau) from Prague;
considered “international.” Thus, the portions the Oder (Odra) from its confluence
of the tributaries lying wholly within Polish with the Oppa; The Niemen
territory, as they provide only Poland with (Russtrom-Memel-Niemen) from
access to the sea at that point, were not Grodno; the Danube from Ulm; and all
navigable parts of these river systems
“international.”
which naturally provide more than one
The Court determined that
state with access to the sea.”
internationalization under the Treaty was
36
subject to two conditions: navigability and natural access to the sea for more than one
state. The Warthe and the Netze are partly navigable in Polish territory and provide
sea access to more than one state. The Court resorted to the principles of
international fluvial law, having found guidance in the Act of the Congress of Vienna of
1815. The Court concluded that the right of passage in an international river is a
common legal right of all riparian states, which stems from the “community of
interest” in a navigable river, should apply to the whole navigable course, and does
not give special privilege to upstream states. The Court established that the territorial
jurisdiction of the International Oder Commission extends to the Warthe and Netze in
Polish territory, including the reaches of the rivers that are navigable as defined by
Article 331 of the Treaty of Versailles.
In this case a new agreement was not required. An existing treaty was upheld
and interpreted by the Court. As a general comment, it should be noted that prior to
and particularly after the Second World War the freedom of transit on international
waterways in Europe began to decline and was finally replaced by new regimes,
governed by special agreements, which limited the right to navigate only to riparian
states. Today the legal regime governing the Oder consists of a collection of bilateral
and multilateral agreements, including, inter alia, the Convention on the International
Commission for the Protection of the River Oder, and the 1992 Helsinki Convention.
4.2. The River Meuse Case

The Diversion of the Water from the Meuse case involved the Netherlands and
Belgium and their use of the Meuse canal system. Both countries used the canal for
local navigation, commercial navigation, coal mining, and irrigation. As the need for
water increased in each state, the early agreements did not meet the new demands
and the dispute arose.
The Meuse rises in France, crosses into Belgium and then criss-crosses back and
forth the border between the Netherlands and Belgium, forming the boundary at some
points, before discharging into the North Sea. The river was developed extensively by
canals and served as a reservoir for other waterways in the Netherlands and Belgium.
The Netherlands, following the adoption of its constitution in 1815, constructed
the Zuid-Willemsvaart Canal from Maestricht to Bois-le-Duc, fed by an intake from the
Meuse at Maestricht. Belgium began a military campaign for independence from the
Netherlands in 1830 (Romano, 2000). The hostilities, which lasted until 1839, caused
a disruption in the flow to the intake, and another canal was constructed at Hocht.
After the Netherlands and Belgium separated, the Hocht intake was situated entirely
within Belgium. In 1845, the Netherlands and Belgium concluded a treaty for the
construction of an extension of the Zuid-Willemsvaart, to be fed by the Maestricht
intake and the Hocht intake on the Meuse, and from the Liège–Maestricht Canal.
Belgium then began work to connect the system with the River Scheldt and to expand
irrigation in the Campine District. Due to the porous nature of the soils there,
extensive loss of water and flooding of Dutch territory resulted. Belgium’s extractions
also diminished the flow in the Zuid-Willemsvaart canal, causing the current to
increase and obstructing navigation in the canal.
The Netherlands and Belgium jointly studied the problem for the next decade.
The countries convened two Mixed Commissions to address the matter, but each was
unsuccessful in finding a solution. The parties then entered into negotiations, which
led to the signing of a treaty in 1861. However, this was not endorsed by the
Netherlands Second Chamber. Later the parties were successful in concluding the
treaty of May 12 1863, which was “to settle permanently and definitively the regime
governing the diversion of water from the Meuse for the feeding of navigation and
37
irrigation channels.” The treaty called for an increase in the water level in the canal,
so that more water could pass without increasing the current. A new intake was
constructed by agreement in the Netherlands and this permitted increased water
extraction without harming navigation. Success in concluding the 1863 water treaty
was facilitated through the adoption of two other agreements on unrelated matters
(tolls on the Scheldt and commercial relations).
The treaty’s technical solutions were soon outstripped by increased economic
development on both sides, and in 1906 the Netherlands suggested that a joint
commission be appointed to discuss the problems arising as a result. The commission
reported to the parties in 1912, but the First World War prevented the parties from
pursuing their negotiations.
In 1921, the Netherlands proposed to develop a canal and lock on the Meuse,
located entirely in the Netherlands. Belgium reacted by initiating diplomatic
correspondence over the matter. Negotiations between the two countries led to a
comprehensive agreement that would allow the development of works in both
countries. However, the Netherlands First Chamber rejected the signed treaty. Despite
this, the Netherlands commenced its project and completed hydraulic works on the
Meuse in 1931. Faced with this development, Belgium began construction of works on
its side of the border, which provoked diplomatic inquiry from the Netherlands. With
the dispute remained unresolved through diplomatic intervention, the Netherlands
initiated proceedings before the World Court in August 1936.
Consent for the judicial action before the PCIJ was based upon the declarations
by the Netherlands and Belgium recognizing the compulsory jurisdiction of the Court.
38
The dispute centered on the Belgian–Dutch Treaty of May 12 1863. The Netherlands
asked the Court to rule that Belgium’s construction and operation of hydraulic works
was a breach of the existing treaty and to order that Belgium restore the system to its
prior condition. Belgium presented a counterclaim requesting the Court to declare its
hydraulic works legal under the treaty and to declare the Netherlands hydraulic works
in the system to be a breach of it.
The Court noted that the written and oral proceedings made reference to the
general principles of international law that governed international rivers. The Court
determined that it was bound by the points raised in the claims of the parties to the
interpretation of the 1863 treaty, and not by the general principles of law. It was
asked in the proceedings to visit the site and view the works, which it did in May
1937. In its judgment of June 1937, the Court limited its decision to the issues of
treaty interpretation. It concluded that the parties were equal in their right to develop
works within their respective territories, constrained only by the terms of the treaty,
namely the obligation to ensure that there was sufficient water in the river for
navigation and to maintain the flow in the Zuid-Willemsvaart Canal as prescribed.
Based on its interpretation of the facts, the Court found that neither party had
violated the treaty.
In 1994, a new (and a very different) agreement on the River Meuse was
concluded by France, the Netherlands, and the Walloon, Flemish, and Brussels-Capital
regions of Belgium. The Agreement on the Protection of the River Meuse, signed along
with the Agreement on the Protection of the River Scheldt, incorporates the main
objectives of the 1992 Helsinki Convention. The primary purpose of the agreement is
cooperation “in a neighborly spirit, keeping in mind . . . common interests as well as
[parties’] special interests, in order to preserve and improve the quality of the
Meuse.” To promote cooperation, the agreement establishes the “International
Commission for the Protection of the Meuse against Pollution.” The Commission has a
mandate to serve as a forum for the exchange of information on projects that are
subject to impact assessment and that have a significant transboundary impact on the
quality of the Meuse.
4.3. The Danube Case

The Danube (Gabþíkovo-Nagymaros) case involved issues of implementation and
interpretation of a 1977 treaty, which provided for a joint development scheme on the
Danube river agreed to by Hungary and Czechoslovakia (as it then was). When
Hungary refused to move forward with the projects as agreed, Slovakia (successor
state to Czechoslovakia) took action on its side of the border to implement the treaty.
The actions by Hungary and Slovakia resulted in a dispute over their respective
obligations under the 1977 treaty.
The Danube, the second-longest river in Europe, rises in Germany and flows
some 2,860 kilometers to the Black Sea, touching or crossing the borders of nine
countries in its course. The Danube also forms part of the border between Slovakia
and Hungary. The case concerns a 200-kilometer stretch of the river between
Bratislava, Slovakia, and Budapest, Hungary. The parties made several attempts to
reach agreement to exploit the potential of this section of the Danube over twenty-
five years, culminating in an agreement in 1977. The 1977 treaty provided for the
joint investment and operation of a series of projects for hydroelectric production,
improved navigation, and flood protection. The 1977 treaty required the parties to
develop a Joint Contractual Plan outlining the objectives and the technical
characteristics of the works. Two further protocols amending the construction
schedule were agreed.
39
Due to intense criticism in Hungary of the environmental consequences of the
project, the Hungarian Government first decided to suspend the treaty pending
further study and then, on October 27 1989, abandoned work at Dunakiliti and
Nagymaros. By this time Slovakia had completed a substantial part of the works
assigned to it under the treaty regime.
The two parties were negotiating during this period to find a solution to the
conflict, but without success. Czechoslovakia (as it then was) had conducted a series
of studies for alternative solutions, since it had completed most of its obligations
under the treaty and needed the joint regime to go ahead. In 1991 Czechoslovakia
unilaterally decided to construct and begin operation of one of the alternatives, known
as “Variant C,” in order to prevent further damage and economic loss due to
Hungary’s suspension of work. New negotiations were begun, also without success.
Hungary demanded that work on Variant C stop. Czechoslovakia demanded that
Hungary submit a technical solution to the problem. Czechoslovakia notified the
Danube Commission, a part of the river basin commissions established under the
Treaty of Versailles, of the implementation of Variant C. Variant C would reduce the
flow by 80–90 percent in that section of the Danube, including a part of the boundary
waters.
The negotiations between the parties failed. On October 23 1992, Hungary
initiated a case before the International Court of Justice. Without the express consent
of the Czech and Slovak Federal Republic, the Court had no jurisdiction to hear the
case. The Commission of the European Communities offered to mediate. During a
meeting in London on October 28 1992, the parties agreed to establish a fact-finding
commission, which included the Commission of the European Communities. The
commission was asked to report on Variant C, convene an independent group of
experts to report on emergency measures, establish and implement a temporary
water management regime for the Danube, and reach agreement on the terms of
submitting the dispute to the International Court of Justice.
Agreement was reached to establish a tripartite group of experts. The group
included an expert designated by each party and three by the Commission of
40
European Communities. The group was to “provide reliable and undisputed data on
the most important effects of the current water discharge and the remedial measures
already undertaken as well as to make recommendations for appropriate measures.”
In December 1992, the experts designated by the Commission of European
Communities presented a number of recommended measures, which both states
rejected. Negotiations continued, and in April 1993, the parties concluded an
agreement “Concerning Certain Temporary Technical Measures and Discharges in the
Danube and Monsoni Branch of the Danube,” which established agreed discharge
levels and required Hungary to construct an underwater weir to improve the water
supply in the side arms of the river. The parties also agreed to submit the case to the
International Court of Justice.
The parties asked the Court to rule on the basis of the 1977 treaty, treaty rules
and general principles of international law. The questions before the ICJ were:
1. Whether Hungary was entitled to suspend and abandon works.

2. The legal effects of Hungary’s unilateral notification of termination of the 1977
treaty.
3. Whether the Czech and Slovak Federal Republic were entitled to proceed and
implement Variant C.
The Court applied the rules of customary international law (codified in the 1969
Vienna Convention on the Law of Treaties) to answer the question arising from the
suspension and termination of the 1977 treaty and related instruments, and the law of
state responsibility to determine the issue of alleged wrongful conduct related to both
the suspension and termination of the 1977 treaty by Hungary and unilateral
implementation of the project by Slovakia.
Slovakia argued that the 1977 treaty was in force and that Hungary had
breached the treaty, which made it necessary for Slovakia to implement Variant C
unilaterally as a countermeasure. Hungary asserted that its suspension of the works
was lawful due to changed circumstances and “ecological necessity.” Hungary claimed
41
that when the Slovak Government unilaterally implemented Variant C and irrevocably
changed the conditions of the Danube, the object and purpose of the treaty were
impossible to achieve, and as a result, Hungary’s termination of the 1977 treaty was
lawful. Both parties claimed damages.
The Court rejected the positions of both parties and found that each of them had
acted unlawfully. The Court determined that the changes in political and economic
systems in Hungary and Czechoslovakia and the new developments in environmental
knowledge were not of a nature that could justify ending the treaty. The Court found
that the 1977 treaty allowed the parties a means to adjust the Joint Contractual Plan
to changing circumstances.
Hungary’s suspension and termination of the treaty was found by the Court to be
unlawful. The Court’s reasoning for not finding the state of ecological necessity is
important. The Court relied on the International Law Commission’s Draft Articles on
International Responsibility of states. A “state of necessity” may be invoked to excuse
wrongful conduct only “when the act is the only means of safeguarding an essential
interest against a grave and imminent peril.” A grave danger to the ecological
preservation of the territory of another state may constitute such a “necessity.” The
Court determined that an “ecological necessity” did not exist in this case because the
evidence presented by Hungary and Slovakia pointed to uncertain harm that might
result from the projects over the long term, but were not “imminent and grave.”
Slovakia’s implementation of Variant C, which had the effect of depriving
Hungary of its share of the Danube, was found by the Court to be unlawful. The
Court’s reasoning was based in part on the law of state responsibility, which requires
a countermeasure to be proportional to the unlawful act. As a result, the Court found
that Slovakia had unilaterally deprived Hungary of its “equitable and reasonable share
of the natural resources of the Danube.” The Court found that the “community of
interest,” referred to in the River Oder case, extended also to the non-navigational
42
uses of international watercourses. In support, the Court cited the 1997 UN
International Watercourses Convention, specifically its Article 5. The equality of the
right of Hungary to share in the Danube and its resources was breached by Slovakia’s
implementation of Variant C.
The Court concluded that both Hungary and Slovakia had acted unlawfully, and
that the parties were legally obligated to enter into negotiations to implement the
purpose and obligations of the 1977 treaty given the existing circumstances, which
include the operation of Variant C.
To date Hungary and Slovakia have been unable to reach agreement on how to
give effect to the ICJ decision. After several rounds of negotiations that followed the
Court’s ruling they prepared a “Draft Framework Agreement” on the principles of its
implementation. While Slovakia approved the draft agreement, the change of
government in Hungary prevented the latter from doing the same. In September 1998
Slovakia requested the Court to render an additional judgment pursuant to their
agreement of 1993. Currently, the dispute is still before the ICJ. While proceedings
are pending, the parties continue to negotiate.
This dispute highlights several elements that may contribute to a conflict over
the use of a transboundary resource. First, the 1977 treaty was negotiated over
twenty-five years and provided for the development of a Joint Contractual Plan to
implement its provisions over time. However, the parties were unable to reach
agreement on the subsequent plans in the face of changes in governments of both
countries. Significantly, the parties tried various means of conflict resolution, including
diplomatic negotiations and mediation, in early failed attempts to resolve the matter.
The failure to find a diplomatic solution led the parties to conclude a special
agreement to bring the dispute to the International Court of Justice. Remarkably the
parties did not opt to have the Court’s Environmental Chamber, which had been
established at the time, hear the matter, but chose instead to have the full Court.
Following the Court’s decision, the parties agreed to enter into negotiations to
implement the judgment, but have been unable to resolve their differences.
5. CONCLUSIONS
International practice has developed an assortment of conflict resolution instruments
and techniques, which have been used by states with various degrees of success.
None of these instruments is unconditionally suitable for all cases and situations. Each
has its advantages and flaws. In many instances diplomatic negotiations are seen as
the primary option and the obvious starting point of conflict resolution. However,
failure to enter into or resolve the matter through negotiations may make third-party
resolution the only available option. The choice here is between formal binding dispute
settlement mechanisms (arbitration and adjudication) and non-litigious methods. As
the complexity of the conflict resolution means employed by parties to the dispute
increases, the process becomes less dependent on their will and control. The level of
confidentiality may also considerably diminish. Arbitration and adjudication are also
regarded as more expensive and time-consuming than other methods of dispute
settlement. On the other hand, they may be the only way out if all other means fail
and if the only alternative is a stalemate that will only result in an unnecessary
prolongation of international tension.
States are free to select their own mechanisms for dispute settlement, and
practice demonstrates a willingness to use the range of available options. The attitude
of different states towards different means of conflict resolution varies for reasons of
cultural and historical traditions.
Whilst the PCCP Cycle has been played out in numerous scenarios, it is clear that
a solid starting point is always the legal context within which the dispute must be
43
considered. What are the rules of law that apply? Are there mechanisms agreed by
the parties that set out the roadway to settlement and eventual cooperation, such as
consultations, negotiations, good offices, mediation, conciliation, fact-finding,
arbitration, and adjudication? What means of dispute settlement shall be employed, at
what time and on what conditions? Once the matter has been resolved, how will the
parties nail down the new arrangement? The next part examines the watercourse
agreement as a foundation for the promotion of meaningful and sustained
cooperation.
Negotiations
Party control
Good offices Confidentiality
Mediation
Fact-finding and inquiry
Conciliation
International organisation
(River basin commission)
Arbitration Time
Adjudication (e.g. ICJ) Costs
Figure 6. Means of peaceful settlement
44
PART FOUR: DESIGNING AND IMPLEMENTING THE
AGREEMENT
1. INTRODUCTION
Once the water conflict has been dealt with through various means and procedures of
dispute settlement – the “PCCP cycle” – the outcome, ideally, should have the form of
an agreement (in a broad sense of this word) memorializing the compromise achieved
by the watercourse states. The best way to fix the terms of such an accord and to
ensure that it is properly carried out is to conclude a formal “treaty” containing the
key elements of the agreement.
The first three parts of this study have set the basis for a more detailed analysis
of the actual state practice in drafting and implementing agreements concerning
shared water resources. This part will start with outlining some general prerequisites
that should normally be considered prior to making a “good” watercourse agreement.
It will then review the principal elements and provisions of a watercourse agreement,
establishing why certain provisions are desirable and identifying possible problems
and gaps in the design of a watercourse agreement. It will then look at the range of
issues that arise in connection with practical implementation of the agreed rules and
obligations.
The analysis will draw on examples of relevant treaty practice.
2. DRAFTING “GOOD” AGREEMENTS

National water policy makers, technical experts, and foreign ministry lawyers normally
work together in drafting and negotiating a transboundary agreement. Clear, precise,
and unambiguous terms facilitate implementation and help to avoid disputes over
interpretation of the agreement.
Water policy makers are usually responsible for ensuring that the agreement is
necessary and meets the interests of the state and its people. The legal personnel will
normally rely on policy makers and technical experts to make certain that all technical
issues (hydrography, hydrology, and so forth) are properly addressed and spelled out.
Depending on the subject matter of the future treaty, an expert in the field can
provide a useful overview or a “checklist” of the issues to be considered in the drafting
process. The legal staff will be concerned with conducting negotiations, determining
the form and terminology of the future agreement, its textual coherence and lucidity,
and possible implications for domestic legislation. Water resource experts and legal
staff must collaborate in order to make sure that the agreement properly reflects the
real intentions of its parties, devoid of contradictions, ambiguities and technical errors.
All elements of the agreement – the preamble, provisions concerning its aims,
geographical and functional scope (areas and activities covered), substantive rules,
procedural rules, means of dispute resolution, and final clauses
– have legal significance and should be properly drafted with
advice from foreign ministry lawyers. Treaty Structure
In such a highly specialized field as transboundary water
ł title
resources, drafting and implementing legal rules requires a
ł preamble
concentrated effort of international law, science, economics ł main text
and other disciplines. In other words, it is a process of melding ł final clauses
the legal, technical and policy elements. ł testimonium
For the purpose of this study our analysis will deviate ł signature
slightly from the traditional treaty structure, and follow an ł annexes
outline more suited to identifying and examining the most
45
important elements of the majority of watercourse agreements. It appears that the
key components of an agreement include:
ł Scope
ł Substantive Rules (Obligations)
ł Procedural Rules (Obligations)
ł Institutional Mechanisms
ł Dispute Avoidance/Settlement Mechanisms
ł Miscellaneous Provisions and Final Clauses.
3. SCOPE
3.1. Overview
Given that most of the watercourse agreements have the character of “territorial”
treaties, the “scope” is an extremely important element of any such agreement, and is
generally identified in its first provisions. Scope usually determines the geographical
(and/or hydrological or hydrographical) parameters and limits of the treaty’s
application by defining both the water resources governed and the states eligible to
participate in it. Thus, a “good” watercourse treaty should provide a clear definition of
the waters covered by its provisions, using either geographic or hydrographical
criteria. It can also define the types of uses or activities regulated by the agreement.
Quite often legal controversies or simple misunderstanding involving
transboundary waters result from different interpretations of the treaty provisions
determining scope, owing to their ambiguity. The River Oder case provides one
example where an international dispute as to whether the freedom of navigation
should extend to the Oder tributaries arose from an unclear definition of the scope of
the Oder Commission jurisdiction provided in the Treaty of Versailles.
Many water-related agreements, in defining their geographical scope, use either
the term “watercourse” or “international basin.” As was discussed in Part Two, the
scope of the 1997 UN IWC Convention is
determined in Articles 1–4. The convention
applies to the non-navigational uses of 1997 UN IWC Convention (Article 4)
international watercourses and their
“1. Every watercourse State is entitled
waters. An international watercourse is to participate in the negotiation of and to
defined as a system of surface waters and become a party to any watercourse
related groundwaters, parts of which are agreement that applies to the entire
situated in different states. An attempt to international watercourse, as well as to
extend the application of the conventional participate in any relevant consultations.”
provisions to confined groundwaters
(aquifers) failed.
Consistent with its role of a “framework” instrument, the convention requires
states to define the waters governed by a specific watercourse agreement to be con-
cluded by them. This is important in the event of a dispute over these waters, since it
is necessary that the subject matter of the conflict is clear. Further, the very definition
of the scope of the waters covered by a treaty may determine the states who might
be eligible to participate in it.
Which states should have a right to become a party to the watercourse
agreement? Who has a right to be involved in negotiations over a watercourse that
crosses territories of more than one country? The answer is provided by the 1997 IWC
Convention in its Article 4. The convention also gives any IWC state that “may be
affected to a significant extent” by a proposed watercourse agreement that only
applies to a part of the watercourse the right to participate in the negotiations and
enter into consultations related to that partial agreement. There are certain principles
46
that give guidance as to the rights of states to become a party to an agreement. At a
minimum, all states that are significantly affected by the implementation of an
agreement have a right to receive notice and enter into consultations and
negotiations.
Compared with the 1997 IWC Convention, the
International Law Association in its 1966 Helsinki Rules ILA 1966 Helsinki Rules
adopted a different approach based on the notion of an Article 2
“international drainage basin.” A number of states
were reluctant to endorse this term, which they “An international drainage
perceived as being too broad and implicitly extending basin is a geographical area
not only to water resources but to the territory (land extending over two or more
mass) as well. However, in practical terms the states determined by the
watershed limits of the system
difference between an “international drainage basin”
of waters, including surface
and an “international watercourse,” as they are
and underground waters,
defined in the respective instruments, is negligible. flowing into a common
Currently both terms are widely used in international terminus.”
agreements without causing any problems of inter-
pretation.
3.2. Treaty Practice

International practice demonstrates that states have adopted various and often
different approaches in defining the “scope” to be covered by their water-related
agreements. One example is the 1992 Helsinki Convention on the Protection and Use
of Transboundary Watercourses and International Lakes, which at the first glance
applies only to “transboundary waters,” defined as “any surface or groundwaters,
which mark, cross or are located on boundaries between two or more states.”
Although the term “transboundary watercourses” is present in the title, it is absent in
the text of the Convention while the term “transboundary waters” is used throughout
the text. This discrepancy can be explained by the fact that the principal goal of the
1992 Convention is to prevent and reduce “transboundary impact,” primarily caused
by pollution. The instrument does not deal with the issue of utilization of waters as
such and is focused instead on minimizing adverse impact. However, the convention
requires from its participants, who share the same transboundary waters, to enter
into separate agreements, which must specify “the catchment area or part(s) thereof
subject to cooperation.”
The recent European Union Water Framework
Directive, aimed at improving the governance of EU Water Framework
Europe’s freshwaters, adopts a “river basin” Directive Article 2
approach and provides for the management of water
resources on the basis of “river basin districts.” The “River basin” means the area of
states are required to manage their waters through land from which all surface run-
River Basin Management Plans. In the event the river offs flow through a sequence of
streams, rivers and, possibly,
basin is international, the EU Members must
lakes into the sea at a single
establish “international river basin districts,” using if river mouth, estuary or delta.
necessary existing structures stemming from “River basin district” means
international agreements. the area of land and sea, made
The 1995 SADC Shared Watercourses Protocol up of one or more neighboring
and its successor, the 2000 Revised SADC Protocol, river basins together with their
use different terms to define their respective scopes. associated groundwaters and
Under the 1995 SADC Protocol, the scope is “shared coastal waters, which is
watercourse systems” without further definition of identified . . . as the main unit
for management of river basins.
the term. Under the 2000 Revised Protocol, the
scope is “shared watercourses” in the SADC region.
47
Thus, the scope is practically identical to the one
adopted by the 1997 UN IWC Convention. 2000 SADC Protocol
Basin-specific agreements are usually more
precise in determining their geographical scope The “watercourse” is defined as “a
of application. Probably, the most exact system of surface and ground
definition of the scope ever included in an waters consisting by virtue of their
international treaty can be found in the 1998 physical relationship a unitary whole
Rhine Convention. On the other hand, the and normally flowing into a common
geographical scope of application in a similar terminus such as the sea, lake or
aquifer”; and “shared watercourse”
basin-wide instrument – the 1994 Danube
means “a watercourse passing
Convention – is defined simply as “the through or forming the border
catchment area,” which is described further as between two or more Watercourse
“the hydrological river basin as far as it is states.”
shared by the Contracting parties.” An
automatic right to become a party to the
Convention belongs only to the “Danubian states.” These include countries that “share
a considerable part of the hydrological catchment area of the Danube river.” In its
turn “considerable part” is defined as a share exceeding 2,000 km2 of the catchment
area of the Danube river. The Danube Convention is very specific in determining its
functional scope, or, in other words, what types of activities are governed by it, in
contrast to the Rhine Convention, which is practically mute on this point. Under the
Danube Convention, virtually all possible uses and water-related activities are
covered, including fishery and navigation to the extent they cause problems related to
pollution.
Unlike the Danube Convention, two identical agreements on the Meuse and
Scheldt rivers concluded at the same time, in 1994, make a distinction between a
“river basin” and a “drainage area.” While most of their provisions apply to the
drainage area, there are some that refer to the river basin.
The 1995 Agreement on the Cooperation for the Sustainable Development of the
Mekong River Basin applies to the “water and related resources of the Mekong river
basin.” It also uses on one occasion the term “Mekong river system.” However,
neither of the terms is defined in the document. It follows from the text that the
“system” comprises at least the mainstream of the Mekong river and its tributaries,
including Tonle Sap. Somehow the title and the terminology of the Agreement are
misleading. It is obvious that it cannot apply to the entire river basin, as the two
upper riparian states – China and Myanmar – are not parties to it. In this respect the
name of the predecessor of the current Mekong River Commission – Committee for
the Lower Mekong Basin – was more accurate.
General, or “framework,” agreements on cooperation tend to cover either all
water resources shared by their participants, or only their “boundary parts.” The 2002
1998 Convention on the Protection of the Rhine
Article 1 Definitions: “Rhine”: The Rhine from the outlet of Lake Untersee and in the
Netherlands the branches Bovenrijn, Bijlands Kanaal, Pannerdensch Kanaal, IJssel, Nederrijn,
Lek, Waal, Boven-Merwede, Beneden-Merwede, Noord, Oude Maas, Nieuwe Maas and Scheur
and the Nieuwe Waterweg as far as the basis line as defined in Article 5 in connection with
Article 11 of the UN Convention on the Law of the Sea, the Ketelmeer and the IJsselmeer.
Article 2 Scope: The scope of this Convention comprises: the Rhine; the ground-water
interacting with the Rhine; the aquatic and terrestrial ecosystems interacting with the Rhine
or whose interaction with the Rhine could be re-established; the Rhine catchment area, as far
as its pollution adversely affects the Rhine; the Rhine catchment area, as far as it is of
importance for issues of flood prevention and defence along the Rhine.
48
Russian–Byelorussian Agreement applies to
1994 Agreement on the Protection “transboundary surface water and
of the (River) Scheldt groundwater bodies,” defining them as “any
surface or groundwater bodies, which mark,
Article 1: Definitions cross or are located on the state boundary”
a) The Scheldt: The Scheldt River, between the two countries. The Chino–
from its source to its mouth, Kazakh Agreement on Utilization and
including the coastal and Western Protection of the Transboundary Rivers define
Scheldt.
the latter as “all rivers and rivers’ run-off,
b) The Scheldt river basin: The
Scheldt, as well as all the which cross or are located on the state
waterways and canals which boundary” between China and Kazakhstan.
directly or indirectly run into it . . . On the other hand, the 1956 Treaty
c) The Scheldt drainage area: The between Hungary and Austria and the 1967
area, the waters of which run into Treaty between Austria and Czechoslovakia
the Scheldt or its tributaries. concerning the regulation of water
management questions apply only to
“frontier waters.” The 1967 Treaty is particularly precise in determining both its
territorial and substantive scope, thus leaving little room for conflicting
interpretations. Some boundary delimitation agreements also deal with the issues of
water resources that straddle or are located on the international boundary.
Finally, some agreements specifically identify waters that are governed by their
provisions. Under the 1995 Chino–Mongolian Agreement, which applies to
“transboundary waters,” the latter include, first, the Halaha river, Kerulen river, Bor
Nor Lake and Bulgan river; and, second, lakes, rivers, streams, and other waters that
straddle or rest on the state boundary between the two states. The 1998 Luso–
Spanish Convention defines both geographical and substantive (functional) scope. This
treaty applies, first, to the “river basins of the Minho, Lima, Douro, Tejo and Guadiana
rivers”; and, second, “to activities aimed at promoting and protecting the water
quality status of these river basins and the current and planned uses of water
resources, especially those which cause or are susceptible of causing transboundary
impacts.”
3.3. Summary
To summarize, it is essential that the scope
of the watercourse agreement is properly
defined so that the “waters” covered, the 1967 Treaty Concerning the
states eligible to participate in the Regulation of Water Management
Questions Relating to Frontier
agreement, and activities or uses regulated
Waters (Austria–Czechoslovakia)
by it are clear and unambiguous. When it
comes to the geographic scope, a broad Article 1: Territorial Scope of the
range of options is available to the states Treaty.
engaged in negotiating and drafting water- a) sections of watercourses along
related treaties. The scope should be which the State frontier . . . runs;
determined depending on the purpose of the b) waters intersecting the State frontier
agreement (“framework,” watercourse or and waters adjoining the State
basin-specific, boundary or project-specific). frontier where any water
The geographic scope and the issue of management measures applied to
them in the territory of one
eligibility are intertwined. In principle, if the
Contracting State would have
agreement purports to cover the entire seriously adverse effects on water
watercourse (or river basin) all the conditions in the territory of the
watercourse or basin states should have a other Contracting State.
right to be involved in negotiation and
participation. On the other hand, two or
49
more states are not precluded from entering into an agreement with respect to a part
of an international basin, as long as this does not affect the rights and legitimate
interests of the other watercourse states.
4. SUBSTANTIVE RULES
4.1 Overview
For the purpose of this study “substantive rules” mean the rules of international
agreements that establish substantive, or material, rights and obligations of states
utilizing the same watercourse, vis-à-vis each other. These rules may vary depending
on the purpose and nature of a particular agreement. The most important among
them are those rules that have been codified in the 1997 IWC Convention, which were
discussed in detail in Part Two. These rules include primarily the fundamental
substantive rule of “equitable and reasonable utilization,” an obligation not to cause
significant harm, and an obligation to protect international watercourses and their
ecosystems. Most of the provisions of existing treaties either reiterate these rules or
substantiate and concretize them in response to a particular problem or situation.
Thus, in 1971, Chile and Argentina concluded the Act of Santiago concerning
Hydrologic Basins with a view to “expressly recognizing general rules of international
law and of supplementing them with specific regulations governing the utilization of
the waters common to the two countries.”
Obligation of conduct Obligation of result
1997 UN IWC Convention 1997 UN IWC Convention
Article 20: Protection and preservation Article 21: Prevention, reduction and control of
of ecosystems pollution
Watercourse states shall, individually 2. Watercourse states shall, individually and,

and, where appropriate, jointly, where appropriate, jointly, prevent, reduce and
protect and preserve the ecosystems control the pollution of an international
of international watercourses. watercourse that may cause significant harm to
other watercourse states or to their environment.
. . . Watercourse states shall take steps to
harmonize their policies in this connection.
3. Watercourse states shall, at the request of any
of them, consult with a view to arriving at mutually
agreeable measures and methods to prevent,
reduce and control pollution of an international
watercourse, such as:
(a) Setting joint water quality objectives and
criteria;
(b) Establishing techniques and practices to
address pollution from point and non-point
sources;
(c) Establishing lists of substances the introduction
of which into the waters of an international
watercourse is to be prohibited limited,
investigated or monitored.
Figure 7. Obligations of conduct and of result
50
International law often distinguishes between “obligations of conduct” and
“obligations of result.” While the first require from a state to act in conformity with a
particular standard of conduct, the second, to be considered fulfilled, usually requires
a state to undertake certain actions in order to realize the purposes of the treaty.
Obligations of result may also include obligations to prevent a given event.
“Framework” international agreements mostly impose obligations of conduct,
thus establishing parameters of lawful, or permissible, behavior of states. On the
other hand, obligations of result are primarily a feature of more specific instruments
aimed at achieving concrete goals, such as attaining a water quality objective,
eliminating or reducing pollution to a certain level, or allocating agreed volumes of
water or benefits of water utilization between the parties.

The drafting process of the 1997 IWC Convention has considerably influenced many
recent watercourse agreements. General agreements on transboundary waters, both
multilateral and bilateral, tend to include broad obligations as a legal foundation for
future cooperation between the parties in more specific areas of water management,
utilization, and pollution control. These instruments often refer to the rule of equitable
and reasonable utilization as a guiding principle of their relations with respect to
transboundary waters.
Both the 1995 SADC Protocol and 2000 SADC Revised Protocol reflect principal
substantive rules embodied in the 1997 IWC Convention. The main obligation of the
states parties under the 1995 SADC Protocol is “to respect and apply the existing
rules of general or customary international law relating to the utilization and
management of the resources of shared watercourse systems and, in particular, to
respect and abide by the principles of community of interests in the equitable
utilization of those systems and related resources.” The obligation to “utilize a shared
watercourse in an equitable manner” is included among its general principles. The
principal provisions of the 2000 SADC Revised Protocol are practically identical to
those of the IWC Convention.
The main substantive provisions of the 1992 ECE Helsinki Convention incorporate
obligations to ensure that transboundary waters are used “with the aim of ecologically
sound and rational water management . . . in a reasonable and equitable way.” Under
the 1995 Mekong Agreement, its parties undertook to utilize the waters of the Mekong
river system in a reasonable and equitable manner . . . pursuant to all relevant factors
and circumstances,” and devised a
procedural scheme of regulating the 1966 Lake Constance Agreement
uses depending on the location (the
Article 3.
mainstream of the Mekong or its
tributaries) and the season (dry or 1. Where a projected withdrawal of water . . . is
wet). This approach will be further such that it would adversely affect important
developed through the Rules for Water interests of the other riparian states and the
adverse effects cannot be avoided or offset by
Utilization and Inter-basin Diversion.
reasonable compensatory measures . . . the
Mozambique, Swaziland and interest attaching to the withdrawal of water
South Africa incorporated equitable shall be duly assessed in relation to the other
and reasonable utilization in their interests. In that assessment particular
interim agreement signed in Johannes- consideration shall be given to the interest
burg in September 2002, and attaching to the maintenance and improvement
undertook to cooperate to achieve of living economic conditions in the region of
“optimal and sustainable utilization of Lake Constance. This shall apply especially to
and benefits from the water resources the interests involved in the various types of
utilization of the water of the lake.
of the Incomati and Maputo Water-
courses.” China and Kazakhstan
51
agreed to adhere to the principles of “equity and reasonableness” in utilizing their
transboundary rivers, but also “not to restrict” each other’s use of water resources
provided the respective party’s interests are taken into consideration.
There are treaties, such as the 1966 Agreement Regulating the Withdrawal of
Water from Lake Constance (between Germany, Austria and Switzerland), that do not
directly refer to the principle of equitable and reasonable use. Their provisions,
however, are such that their practical application would result in the same outcome:
equitable allocation of the uses and benefits of the watercourse.
Various watercourse agreements include a range of other substantive rules,
establishing obligations of either conduct or result, such as requirements to protect a
watercourse ecosystem, to prevent and control pollution, and to protect installations.
Substantive provisions of the water sharing or project-related agreements may be
quite specific. They may, for example, provide for different mechanisms of water
allocation and benefit sharing.
Canada and the United States, under the 1961 Columbia River Treaty, created an
integrated regime of utilization of their transboundary river through balancing the
equities and recognition and payment for “downstream benefits.” Canada agreed to
have three major dams and reservoirs constructed on its territory and to provide to
the United States the resulting downstream benefits in the form of electricity and
flood control. In return, the United States undertook to compensate Canada by paying
for flood-control measures and by providing 50 percent of the additional hydropower
resulting from the project. The 1986 Lesotho Highlands Water Project Agreement
establishes a very elaborate scheme under which South Africa, in exchange for
increased water supplies from Lesotho, financially supported a hydropower generation
and water transfer project in that country. The 1998 Syr-Darya Agreement provides
for in-kind compensation in energy resources (mostly coal and gas) by downstream
states to the upstream state (Kyrgyzstan) in exchange for the release of stored water
and transfer of excess power generated during the growing season.
There are other, more straightforward, models of water sharing employed by
states that have agreed to allocate their shared water resources equitably: from
dividing the entire river basin to apportioning the water of a particular river or aquifer
to establishing an agreed regime of water flow benefiting both riparians. India and
Pakistan, in their 1960 Treaty, concluded with strong political and financial support of
the World Bank, agreed to divide between them the six main rivers constituting the
Indus river basin.
In 1996, India and Bangladesh settled
their long-running controversy over the 1996 Treaty on Sharing of the Ganges
waters of the Ganges river, agreeing to Waters at Farakka
share the burden of low waters during the
Water-sharing formula:
dry season (from January 1 to May 31).
Under the 1996 Farakka Barrage ł Flow above 75,000 cu. ft per second
Agreement, the parties designed a formula (cusecs): India receives 40,000 and
of water allocation that was in their view Bangladesh the remainder.
ł 70,000–75,000 cusecs: Bangladesh
“fair and just.” The Treaty is flexible
receives 35,000 and India the
enough to provide for the water sharing remainder.
arrangements to be reviewed and, if ł 70,000 cusecs or less: to be divided
necessary, adjusted every five years or equally.
earlier. Even in the absence of mutually ł Below 50,000 cusecs: the parties are to
agreed adjustments India has committed consult and take emergency measures
itself to release at least 90 percent of water to ensure equity, fair play and no harm
allocated to Bangladesh in accordance with to each other.
the formula. Similar, although more
52
complex, water and power sharing arrangements were envisaged in the 1996 treaty
concerning the integrated development of the Mahakali river, concluded between India
and Nepal.
The 1972 Agreement between the former Soviet Union and Finland concerning
hydropower production on the Vuoksi river is an example of a different regime of
water utilization established for one specific purpose: efficient use of the two
hydroelectric stations belonging respectively to the two riparian countries. The parties
undertook to regulate stream flow in the river in order to maintain the water level
required for operation of the Finnish power station located downstream. It was also
agreed that Finland would receive annual compensation in kind for the loss of stream
flow and energy resulting from the construction by the Soviet side of the new station
upstream.
Transboundary watercourse states have generally arrived at an equitable
allocation of the watercourses’ uses and benefits, mainly through joint study and
negotiations. It may be a long and difficult process, especially where the water
resources are of paramount importance for the states involved. Suffice it to note that
the Columbia river controversy required twenty-five years to be finally settled; the
Mekong regime evolved over fifty years with assistance from the United Nations and
external donors and is still developing; and the Nile river basin process, involving all
basin states, envisages a long-term, in-depth joint study aimed at determining net
equitable entitlements for each of them for the use of the Nile waters.
4.3. Summary
The core of any watercourse agreement is in its substantive rules, which establish the
material obligations of the parties, either of conduct or result. Most successful treaties
reflect, directly or indirectly, the fundamental principle of international water law:
equitable and reasonable utilization. Those international agreements that, for
whatever reasons, do not comply with this principle will hardly be sustainable in the
long term. Any party who perceives a treaty as being inequitable will be tempted to
obstruct its implementation or attempt to change its terms and conclude a new one.
Usually it is not sufficient to simply proclaim “equitable utilization” as a guiding
principle; this rule has to be “operationalized” through concrete arrangements, the
nature of which will depend on a number of factors, including but not limited to the
conditions of the watercourse, predominant uses, and the needs and capabilities of
the watercourse states. The process of achieving equitable allocation should ideally be
done on the basis of an integrated approach involving contributions from a range of
disciplines, such as hydrology, economics, water management and engineering, and,
of course, law.
While usually, in the first instance, each watercourse state individually makes its
own assessment of what constitutes an equitable and reasonable use of a watercourse
and ascertains its “legitimate” entitlement, the ultimate allocation of uses and benefits
cannot be done by states acting on their own. Equitable utilization or allocation is
established either by a third party (be it a court or an impartial mediator) or, better,
by the interested states themselves. The second approach may require the states to
undertake a joint study of the river basin, exchanges of information, and other
coordinated efforts. This is normally done through the use of two primary supporting
elements: procedures and institutional mechanisms, each of which will be discussed in
the following sections.
53
5. PROCEDURAL RULES
5.1. Overview
As was discussed in Part Two, procedural requirements and mechanisms are an
essential element of practically any watercourse agreement. They provide the means
through which the substantive rules are implemented and the changing watercourse
regime is managed. The distinction between the “substantive” and “procedural”
obligations is made mostly for analytical purposes to understand the treaty structure
and requirements better. This does not mean that “procedural” obligations are less
binding than obligations characterized as “substantive” (McCaffrey, 2001). Both are
categories of international legal obligation whose violation may entail state
responsibility, or, in other words, give rise to a new obligation to stop the violation
and to make appropriate reparation.
Procedural rules establish a range of obligations:
from a general duty to cooperate to obligations Procedural Rules and
concerning data and information exchange, prior notifi- Mechanisms
cation and consultation. In this respect the 1997 IWC
Convention provides a model procedural framework, ł cooperation
which has been closely followed by recently adopted ł prior notification
ł exchange of data and
agreements, such as the 2000 SADC Revised Protocol or
information
the 2002 Russian-Byelorussian Agreement on Cooper- ł consultations
ation.

Cooperation is a necessary basis for the proper functioning of all procedural rules and
mechanisms. The ultimate goal of practically any international treaty is to encourage
and promote cooperation between its parties. This is particularly true when dealing
with exploitation and protection of natural resources, such as water, that cross
international boundaries. Optimal and sustainable utilization and development of a
transboundary watercourse is virtually impossible in the absence of cooperation in
good faith between the states sharing it. Most watercourse agreements directly refer
to cooperation as their primary goal (as in the 1978 Treaty for Amazonian
Cooperation) or incorporate a general obligation to cooperate as one of their principal
provisions.
International lawyers have been at odds over the issue of whether cooperation is
indeed a binding legal obligation rather than simply a goal or a guideline for conduct.
In other words, the question is: can one assert that states must rather than should
cooperate, and can this obligation be imposed on states and enforced through legal
means?
In the 1997 IWC Convention cooperation is spelled
1997 IWC Convention
out as a legal obligation. This duty to cooperate should
not be viewed in abstracto. The obligation takes on Article 8. General
meaning in specific contexts: working together with co- obligation to cooperate
riparians to achieve an equitable allocation of the uses 1. Watercourse states shall
and benefits; entering into consultations and cooperate on the basis of
negotiations in good faith concerning alterations of the sovereign equality, territorial
regime of a watercourse, and so forth (McCaffrey, equality, territorial integrity,
2001). Obviously, no one can force a state to cooperate mutual benefit and good
if this means signing a treaty against its will. However, faith in order to attain
optimal utilization and
systematic obstruction of other states’ efforts to agree
adequate protection of an
on equitable allocation of a shared water resource or international watercourse.
refusal to notify and enter into consultations in good
54
faith regarding potentially harmful activities that may affect co-riparians may be
considered as a breach of a duty to cooperate. While cooperation is the underpinning
of other obligations, failure to cooperate could constitute an internationally wrongful
act entailing State’s responsibility (McCaffrey, 2001).
Cooperation may take different forms. The
most common is exchange of information and 1992 UN ECE Helsinki Convention
data on a regular basis. The 1992 UN ECE Helsinki
Article 13. Exchange of
Convention, whose procedural regime is aimed at
information between Riparian
preventing and reducing transboundary impacts,
Parties
obligates its parties to provide for the “widest
exchange of information, as soon as possible.” 1. The Riparian Parties shall . . .
Parties to the Convention that share the same exchange reasonably available data,
inter alia, on:
transboundary waters are required additionally to
exchange information on a wide range of issues a) environmental conditions of
and to have consultations “aimed at cooperation” transboundary waters
on all matters covered by the Convention. b) experience gained in the
Cooperation is particularly important when application and operation of best
new uses in one state threaten to affect water- available technology and results
related interests and rights of other co-riparians. of research and development
The state planning such measures has a duty to c) emission and monitoring data
give notice in advance of works that may result in d) measures taken and planned to
significant adverse effects (and not necessarily be taken to prevent, control and
reduce transboundary impact
harm) to other states. Prior notification is
e) permits or regulations for waste-
considered as an international legal obligation water discharges issued by the
regardless of whether there is a special competent authority or
agreement between the initiating and the appropriate body.
potentially affected states. It is noteworthy that
the World Bank’s Operational Policies “Projects on
International Waterways” (OP 7.50 of June 2001) specifically require prior notification
as a compulsory requirement and a precondition for any project financed by the World
Bank. Obligation of prior notification applies equally to upstream and downstream
states.
If necessary, additional information
may be requested by the potentially
1995 Mekong Agreement
affected states, which the initiating states
must provide. If the countries concerned Notification: Timely providing information
disagree over the possible effects of the by a riparian to the Joint Committee on its
planned activities they must enter into proposed use of water according to the
consultations in good faith with a view at format, content and procedures set forth in
arriving at an equitable resolution of the the Rules for Water Utilization and Inter-
situation. Obligations of prior notification Basin Diversions under Article 26.
and consultations cannot be construed, Prior consultation: Timely notification
however, as a requirement of consent on plus additional data and information to the
Joint Committee as provided in the Rules
the part of possibly affected states; that
for Water Utilization and Inter-Basin
would give them a “veto” right with respect
Diversion under Article 26, that would
to proposed activities. allow the other member riparians to
Procedural rules and mechanisms discuss and evaluate the impact of the
established under the 1995 Mekong proposed use upon their uses and of water
Agreement and developed further by the and any other affects, which is the basis
Mekong River Commission represent for arriving at an agreement. Prior
perhaps the most elaborate and advanced consultation is neither a right to veto a use
model. Of special interest are the two nor unilateral right to use water by any
documents recently adopted by the MRC riparian without taking into account other
riparians' rights.
Council: “Procedures for data and
55
information exchange and sharing,” put into effect on November 1 2001, and
“Preliminary procedures for notification, prior consultation and agreement,” approved
on November 12 2002. The primary objective of the first document is to
operationalize the data and information exchange and to make available, upon
request, basic data and information for public access. The document distinguishes
between data exchange and sharing. It establishes the principles and modalities of
such exchange and sharing. The MRC is designated as custodian in charge of
obtaining, updating and managing data and information. The second document
establishes the procedures to be applied by the Mekong basin states in the case of a
proposed use, which is defined as “any proposal for a definite use of the waters of the
Mekong river system by any riparian, excluding domestic and minor uses of water not
having a significant impact on mainstream flows.” A six-month time frame is provided
for consultation between the countries affected, before a proposed development can
begin. The agreement also prescribes a detailed format for notification to be carried
out. The agreement refers specifically to "inter- and intra-basin diversions" of Mekong
water. These could involve any kind of water retention and diversion for the purposes
of electricity generation, irrigation, and flood management.
The two documents have resulted from increased cooperation between the lower
Mekong river countries under their Water Utilization Programme (WUP). According to
the countries' schedule, procedures for monitoring existing water uses will be agreed
by the end of 2003, rules for the maintenance of flows by the end of 2004, and rules
for water quality by the end of 2005.
Another major development in the Mekong river basin was the signing in April
2002 of a historic agreement between the MRC and China on data sharing. Under this
agreement, which required over a year of active negotiations and visits between the
MRC and China, the Chinese Ministry of Water Resources undertook to provide data on
Mekong river flow and water levels to the MRC Secretariat by computer link-up every
twenty-four hours. The data would come from water-measuring stations located in
Yunnan province on the Upper Mekong (the Lancang river) in China. In its turn, the
MRC undertook to assist the Chinese government in upgrading the two water-
measuring stations, which are transmitting the data. A Joint Working Group
comprising delegates from the MRC and China was set up to oversee the practical
issues of data-sharing.
Under the 2000 SADC Revised Protocol, for all
Data and information new activities the parties agreed to exchange
exchange: reciprocal transfer information, consult, and negotiate “the possible
of data and information effects of planned measures on the conditions of the
among the member countries. watercourse.” The protocol is quite detailed in
outlining respective procedural rights and obligations
Data and information of the states concerned as well as in establishing
sharing: provision of full precise time frame necessary for notification, reply
access to data and information and consultations.
maintained in the MRC-IS to
Similar procedural rules, if not as detailed as
the member countries through
those in the Mekong Agreement or SADC Revised
MRCS.
Protocol, are contained in many other agreements,
both “framework” and watercourse-specific.
5.3. Summary
Thus, procedural rules, in their entirety, constitute what once was called “the
procedural law of cooperation” in relation to international watercourses (Higgins,
1994). Procedural obligations of a watercourse treaty are as important as its
substantive provisions. Indeed, they complement the latter and provide the necessary
machinery, through which substantive obligations are implemented and the goals of
56
the treaty are attained. It is impossible to imagine how equitable and optimal
utilization of a transboundary watercourse can be achieved without information and
data exchange and consultations between the states sharing it. Prior notification with
respect to planned activities that may significantly affect other co-riparians is a crucial
obligation. It plays a particularly important role in preventing international disputes.
6. INSTITUTIONAL MECHANISMS
6.1. Overview
International watercourse joint bodies and commissions form another essential
component of many modern watercourse agreements. They are used both as
permanent institutional mechanisms of interstate cooperation and, specifically, as
important tools of identification of competing interests, thus preventing disputes over
shared waters. In addition to their main function of coordinating watercourse states’
efforts in developing and managing the watercourse, institutional mechanisms usually
serve the function of dispute avoidance by allowing the technical experts to study a
potentially controversial issue and make recommendations before this issue turns into
a controversy that requires formal diplomatic negotiations or third-party dispute
resolution.
As will be seen below, the composition and duties of existing institutional
mechanisms vary greatly. International practice demonstrates the importance of
effectively functioning joint bodies. Pursuant to the global policy objectives of peace,
security, and poverty alleviation, multilateral and national aid agencies support the
creation and evolution of institutional mechanisms through direct aid and capacity
building.
The 1997 IWC Convention generally
recommends to watercourse states to “consider 1976 ILA Rules “Administration
the establishment” of joint bodies but leaves the of International Water
Resources”
particulars to be determined by the states
concerned. The relevant provision, which is Article 4
contained in the 1991 draft articles prepared by 1. In order to provide for an
the International Law Commission, went much effective international water
further in outlining possible functions and resources administration, the
responsibilities that these bodies should be agreement establishing that
entrusted with. This final compromise wording administration should expressly
was reached only at a late stage following some state, among other things, its
controversy on the matter during the objective or purpose, nature and
deliberations of the Working Group of the Whole. composition, form and duration,
legal status, area of operation,
Although the rules of customary law do not
functions and powers, and its
require watercourse states to establish joint financial implications.
commissions, state practice demonstrates that
the majority of international agreements, bilateral and multilateral, provide for such
institutional mechanisms as means of treaty implementation and dispute prevention.
As early as 1976, the ILA in its rules concerning “Administration of International
Water Resources” (supplementary to the 1966 Helsinki Rules) called for basin states
to establish an international water administration, defined as “any form of institutional
or other arrangement . . . for the purpose of dealing with the conservation,
development and utilization of the waters of an international drainage basin.” The ILA
viewed this as a precondition to effective implementation of the principle of equitable
utilization and prevention and settlement of disputes. The practical experience gained
from the work of numerous joint institutions has been succinctly analyzed and
presented in the “Berlin Recommendations on Transboundary Water Management:
57
Experience of International River and Lake Commissions” adopted by the International
Round Table in September 1998.

There are different approaches to designing international river basin institutions and
determining their role, mandate, and composition. In North America, Canada, Mexico,
and the United States entrust their joint commissions with a wide range of
responsibilities including the task of dealing with watercourse controversies. Both the
US–Canadian International Joint Commission (IJC) and the US–Mexican International
Boundary Waters Commission (IBWC) are bilateral organizations with equal
representation of their respective member states. The commissions are among the
oldest existing international water organizations and for many years have been
successfully used to resolve potential and actual differences over transboundary water
resources. The ICJ, for example, can be used by the two governments both as an
instrument of fact-finding and inquiry, and as a tool of dispute resolution where there
are “questions or matters of difference” between the parties, involving their rights,
obligations, or interests. In the first instance, its reports, which may include
conclusions and recommendations, are not legally binding and “in no way have the
character of an arbitral award.” In the second, such decisions will be binding on the
two governments, provided there is a majority in the Commission.
Europe, having adopted the 1992 Helsinki Convention under the aegis of the UN
Economic Commission for Europe, introduced a two-tiered approach. While at the
regional (pan-European) level “the Meeting of the Parties” (MOP) to the Convention is
responsible for the implementation of the umbrella treaty, basin-specific agreements
set up their own joint bodies responsible for individual watercourses. Thus, unlike
many watercourse agreements, the 1992 Convention does not create any special
institutional mechanism apart from the MOP, which serves as a forum, both informally
and formally, for dispute prevention through
regular meetings and its joint work program. Tasks of the Rhine Commission
Among its current projects is the development
of a compliance review procedure and a) To prepare international
enhanced public participation. monitoring programmes and
The adoption of the Helsinki Convention analyses of the Rhine ecosystem
and to evaluate their results, also
gave an impetus to the institution-building
in cooperation with scientific
process, although some of the joint river basin institutions.
bodies in Europe were created long before it. b) To elaborate proposals for
One of the earliest examples of joint bodies different measures and
was a bilateral commission established by programmes of measures,
France and Italy under their 1914 convention eventually including economic
concerning utilization of the waters of the Roya instruments and taking into
river and its tributaries. Now such commi- account expected costs.
ssions exist for practically all major European c) To coordinate the contracting
watercourses: the Rhine, Elbe, Danube, parties’ warning and alarm plans
for the Rhine.
Meuse, Scheldt, and Oder. Currently the work
d) To evaluate the effectiveness of
continues on the creation of two new commi- the measures decided on, in
ssions: for the Zapadnaya Dvina/Daugava particular on the basis of the
river basin (Russia, Byelorussia, and Latvia) reports of the contracting parties
and the Neman river basin (Byelorussia, and the results of monitoring
Lithuania, and Russia), which will be set up programmes and analyses of the
with the conclusion of the respective trilateral Rhine ecosystem;
agreements on cooperation. In addition to e) To carry out any other tasks upon
basin-specific (mostly multilateral) institutions, the instructions of the contracting
the neighboring states often create bilateral parties.
58
commissions responsible for all transboundary waters that they share. Examples of
such joint bodies are numerous. Suffice it to mention the Joint Finnish–Russian
Commission on the Utilization of Frontier Watercourses, successfully operating since
1965, Austrian–Czechoslovak Frontier Water Commission (1965), Finnish–Swedish
(1972) and Finnish–Norwegian Commissions (1980), Russian–Kazakh Commission
(1992), Luso–Spanish Commission (1998), and numerous others.
Each of these institutions has a specific mandate set forth in their respective
agreements. For example, the Rhine Commission has particularly broad powers,
including monitoring of compliance with the treaty provisions and obligations through
evaluation of the parties’ reports. On the other hand, unlike some other river basin
institutions, the Commission does not have a formal mandate to resolve interstate
controversies. Under the Rhine Convention, all disputes must be settled by
negotiations or submitted to compulsory arbitration.
In Africa, the emphasis is put on management of main international river basins
through multilateral institutions. One example is the institutional framework for
shared watercourses established in the Southern African region. Under the 1995 SADC
Protocol the parties agreed to establish “appropriate” institutions, called “River Basin
Management Institutions” (RBMIs), consisting of a regional Monitoring Unit, and River
Basin Commissions and River Authorities or Boards (for each drainage basin). It is
noteworthy that, unlike other regional and watercourse-specific regimes, neither the
objectives of the RBMI’s nor the long list of assigned functions include dispute
settlement. This task was left to the SADC Tribunal, which was established under the
original 1992 SADC Treaty.
The 2000 SADC Revised Watercourses Protocol significantly modifies the 1995
Protocol bringing it closer to the text of the 1997 IWC Convention. One notable
difference of the 2000 Protocol from its predecessor is the shape and functions of
institutional mechanisms responsible for “implementation” of the treaty. These are not
only more numerous, but more powerful as well. They include institutions at the
regional level – the SADC “Water Sector Organs” (comprising the Committee of Water
Ministers; the Committee of Water Senior Officials; the Water Sector Co-ordinating
Unit; and the Water Resources Technical Committee and sub-Committees) – and
“Shared Watercourse Institutions.”
The most senior body, the Committee of Water Ministers, which consists of
ministers from each state, has among its other functions a task of assisting in
resolution of “potential conflicts on shared watercourses.” The committee is also in
charge of “overseeing and monitoring the implementation” and providing “regular
updates to the Council on the status of the implementation” of the protocol. The task
of compliance verification is also entrusted to the Water Sector Coordinating Unit, the
executing agency of the Water Sector. It is required to monitor implementation and to
“liaise with other SADC organs and Shared Watercourse Institutions on matters
pertaining to the implementation” of the Protocol, as well as to “provide guidance on
the interpretation” of the Protocol.
Another example of a relatively successfully evolving multilateral institutional
framework is a mechanism established under the 1987 Agreement on the Action Plan
for the Environmentally Sound Management of the Common Zambezi River System,
which was concluded by the five Zambezi basin states. It consists of the Zambezi
Intergovernmental Monitoring and Coordinating Committee (ZIMCC) and Zambezi
River Basin Coordinating Unit. The first, as an intergovernmental body, is responsible
for coordination and provision of operational and policy guidance. The second is a
small standing body primarily responsible for the implementation of the Action Plan. It
is noteworthy, that it was established as both a river basin institution and a SADC
unit, thus ensuring a very close cooperation and coordination with relevant SADC
institutions.
59
There are other multilateral institutions created for particular African river basins
and watercourses, including the Niger, Senegal, Kagera, and Okavango rivers, Lake
Victoria, Lake Chad, and the Nubian Sandstone Aquifer. Not all of these joint bodies
have always been successful in discharging their functions, mostly owing to the
inadequacy of available financial, technological, and human resources. The experience
of existing commissions shows that their financial capacity to undertake activities
must be guaranteed by the cooperating parties if they are to fulfill their mission in a
sustainable fashion (Berlin Recommendations). Although external support should not
be viewed as a long-term means to meet the financial requirements of commissions,
in many respects it is indispensable in the initial phases of their operation.
In this regard, the experience of the Nile Basin Initiative (NBI) is instructive as
an instance where the involvement and substantial financial support of the World
Bank and other donor agencies have been particularly important. One unique feature
of the NBI, which distinguishes it from similar institutional mechanisms on other
watercourses, is that it was launched by the Nile basin countries without any formal
treaty. Rather than trying to conclude an agreement, which seemed very unlikely
given the range of unresolved contentious issues separating them, the basin states
established the NBI at the 1999 meeting of the Ministers of Water Affairs by simply
adopting and signing the Minutes. The NBI comprises the Council of Ministers of Water
Affairs of the Nile Basin states (Nile-COM), Technical Advisory Committee (Nile-TAC),
and a Secretariat (Nile-SEC). This institutional mechanism provides policy direction
and support for the river basin cooperation. However, given its transitional nature, the
NBI is a process rather than a conventional joint institution with a clear mandate,
powers and decision-making authority. It is likely that the NBI will eventually be
replaced by a permanent framework, which will require a properly concluded
international treaty.
The institutional framework in the Aral Sea basin is based on the 1992
Agreement on Cooperation in the Management, Utilization and Protection of Interstate
Water Resources, which was concluded by the five newly independent states (the
former Soviet republics of Central Asia). The 1992 Agreement was a starting point in
creating a legal and institutional regime for sharing and management of
transboundary waters of the two main rivers: the Amu-Darya and Syr-Darya. Since
then, the Aral Sea basin countries concerned have entered into a number of more
specific agreements and arrangements, often in the form of declarations of the heads
of state.
The principal water management institution established by the 1992 Agreement
is the Interstate Commission for Water Coordination (ICWC), which was given a
mandate to determine regional water policy and to develop measures ensuring
comprehensive and rational utilization of water resources. The most important of its
functions is the determination of the total available water resources in the region and
their allocation among the states parties. ICWC is comprised of the senior members of
the central water management organizations (Ministries of Water Resources) of each
of the founding states.
Under the 1992 Agreement, water-related disputes are to be resolved by the
heads of the Central Water Management organizations of the states concerned and,
where necessary, through the involvement of an impartial third party. However, this
formal procedure has not been used to date. In practical terms, the joint body – ICWC
– acts to prevent and resolve regional water conflicts and provides a forum where
representatives of the five basin states can meet, discuss, and make binding decisions
on contentious issues, including water allocation.
The Mekong River Commission (MRC), which succeeded the Committee for
Coordination of Investigation of the Lower Mekong Basin, was established as an
intergovernmental agency of the four basin states – Cambodia, Laos, Thailand, and
Vietnam – under the 1995 Agreement. The Commission, which is composed of three
60
permanent bodies (the Council, the Joint Committee and the Secretariat), is the key
institutional mechanism with a broad range of responsibilities, including, crucially,
resolution of contentious issues and disputes. Both the Council, consisting of one
ministerial (cabinet) level representative from each riparian state, and the Joint
Committee, comprised of one member from each riparian state at no less than head
of department level, are empowered “to entertain, address and resolve issues,
differences and disputes” referred to them under the Agreement. Only those disputes
(or differences) that are not resolved by the Mekong River Commission are to be
referred to the governments for negotiation, possible mediation, or eventual
settlement “according to the principles of international law.”
Under the 1960 Indus Waters Treaty, the Joint Commission is made up of two
commissioners, engineers, each representing his or her respective state, India or
Pakistan. The Permanent Indus Commission (PIC) is in charge of promoting and
maintaining cooperative arrangements for implementation of the Treaty and should
act as a “regular channel of communication on all matters related to the Treaty.” Even
during the recent hostilities, parties did not suspend the annual meeting of the PIC.
Like the MRC, the Indus Commission serves as the initial venue where a possible
conflict must first be addressed. The PIC is empowered to examine any “question,
which arises between the parties concerning the interpretation or application of this
Treaty or the existence of any fact which, if established, might constitute a breach of
the Treaty . . . [and] resolve the question by agreement.” If the PIC cannot reach
agreement, either commissioner can request that the matter be put to a “neutral
expert.” If the neutral expert or the commissioners determine the matter constitutes a
dispute, the dispute resolution procedures are followed. The neutral expert, a highly
qualified engineer appointed in advance by agreement of the parties or by the World
Bank, has extensive quasi-juridical powers, including determination of available
waters, withdrawals, releases, uses, and procedures for providing each party “an
adequate hearing.” If the parties cannot agree whether the question falls within the
powers of the expert, he/she has the power to make that determination. The
decisions of the expert are binding.
Finally, in South America, under the Treaty for Amazonian Cooperation, the
Amazonian Cooperation Council, comprised of “top level diplomatic representatives,”
was established in order, inter alia:
ł To ensure that the aims and objectives of the Treaty are complied with.
ł To be responsible for carrying out the decisions taken at meetings of Foreign
Affairs Ministers.
ł To take under consideration initiatives and plans presented by the parties as well
as to adopt decisions for undertaking bilateral or multilateral studies and plans.
ł To evaluate the implementation of plans of bilateral or multilateral interest.
The parties were required to establish “Permanent National Commissions” to ensure

that the treaty is implemented, including those decisions taken by the Meeting of
Foreign Ministries and the Amazonian Cooperation Council. It is not clear whether and
to what extent this model has been successfully employed on the ground.
There are numerous other examples of institutional mechanisms established to
facilitate the smooth management of shared international watercourses and prevent
and resolve transboundary water disputes.
6.3. Summary
There are very few areas of interstate relations where the existence of a permanent
institutional framework for cooperation would be as important as in the area of
transboundary water resources. International river basin commissions and other joint
61
bodies have proved to be very effective tools of water disputes avoidance and
resolution. It is impossible to identify any developed legal regime concerning
transboundary watercourses that would not have some kind of an institutional
mechanism.
There is a great diversity of existing joint bodies in terms of their mandates,
powers, compositions, and structures. They may be bilateral or multilateral; they may
be in charge of a particular watercourse or of all transboundary waters shared
between the state parties; they may deal with the entire range of water-related
activities and uses, or focus on specific sectors of the water management and
utilization; they may involve the highest (heads of states) level of interstate relations,
or be purely technical with representation at a specialist level; they can be used
simply as a channel of communication or be entrusted with much broader
responsibilities, including dispute resolution. There is no single model or approach to
cooperation that would be appropriate for all or even most situations. This diversity is
a major strength and is a consequence of the large variety of political and physical
settings, various origins and mandates of the institutions, and the current and
emerging problems they are required to address (Berlin Recommendations).
Although there is no blueprint for a successful legal framework for cooperation,
well-drafted and unambiguous legal instruments are essential in creating effective and
sustainable institutional frameworks. On the other hand, the process of institution-
building and development of joint bodies is as important as the substantive content of
the legal instrument establishing them. Given that the role and objectives of the river
basin institutions are not static, agreements that provide the framework for their
operation should allow for modifications in their functions and powers over time to
deal more effectively with changing conditions and to address emerging issues.
7. DISPUTE AVOIDANCE AND RESOLUTION

7.1. Overview
Practice demonstrates that states
usually implement international 1966 ILA Helsinki Rules
agreements concluded by them with- Article XXX. In case of a dispute between
out serious controversies. This, of states as to their legal rights or other interests
course, does not mean that problems . . . they should seek a solution by
do not arise or that the parties do not negotiation.
have disagreements over how the Article XXXI. If a question or dispute arises
treaty provisions should be applied or which relates to the present or future
interpreted. For that reason, an inte- utilization of the waters of an international
rnational agreement must envisage drainage basin, the basin states should refer
the possibility of a dispute between its the question or dispute to a joint agency and
parties and provide for a mechanism request the agency to survey the international
designed to settle them. drainage basin and to formulate plans or
As was discussed in Part Three, a recommendations for the most efficient use
thereof in the interests of all the states
broad range of dispute avoidance and
concerned.
settlement mechanisms is available to
watercourse states. If a dispute or a Article XXXII. If a question or a dispute is
disagreement arises, most inter- one which is considered by the states
concerned to be incapable of resolution in the
national watercourse legal regimes
manner set forth in article XXXI, it is
tend to gradually elevate it from one recommended that they seek the good offices,
level of dispute settlement procedure or jointly request the mediation of a third
to another: from using technical State, of a qualified international organization
experts within a joint institution to dip- or of a qualified person.
lomatic negotiations and, eventually,
62
to binding resolution by the impartial
Article XXXIII. 1. If the states concerned
third party. This approach is consistent
have not been able to resolve their dispute
through negotiation or have been unable to with general international practice and
agree on the measures described in articles was mirrored in the work of the ILA,
XXXI and XXXII, it is recommended that they which in its 1966 Helsinki Rules identi-
form a commission of inquiry or an ad hoc fied the most appropriate mechanisms
conciliation commission, which shall endeavour and procedures to be employed in
to find a solution, likely to be accepted by the resolving disputes over shared water
states concerned, of any dispute as to their resources.
legal rights. The 1997 IWC Convention utilizes
a similar phased approach with an
Article XXXIV. It is recommended that the innovative provision for compulsory
states concerned agree to submit their legal fact-finding. According to the ILC
disputes to an ad hoc arbitral tribunal, to a commentary, in such a very specialized
permanent arbitral tribunal or to the International field as water resources “it will be
Court of Justice if:
necessary to rely on technical experts
a) A commission has not been formed as
. . . to apply equitable and reasonable
provided in article XXXIII, or utilization – the flexibility of the
b) The commission has not been able to find a framework convention makes it difficult
solution to be recommended, or to apply with any precision.” The next
c) A solution recommended has not been section discusses in more detail vari-
accepted by the states concerned, and ous dispute avoidance and resolution
d) An agreement has not been otherwise techniques that states have adopted in
arrived at. their practice involving water conflicts.

Most watercourse agreements follow the UN Charter in enjoining states to resolve
their disputes, in the first instance, through negotiations and other diplomatic means.
Parties are generally free to select the methods of dispute settlement that follow on
from negotiations. The most common model provides for institutional mechanisms to
take the lead in resolving disputes, failing which the matter moves to governments to
settle. State practice reveals some differences in the way that countries belonging to
different regions tend to resolve their disputes over water. Generally, watercourse
states in Africa and Europe while empowering their joint institutional mechanisms with
the task of dispute avoidance, appear more willing to involve third parties, including
arbitration and adjudication, in the resolution of disputes. In contrast, in North
America and, in particular, Asia, joint institutions and technical bodies play the
dominant role, with practically no recourse to compulsory third-party settlement.
The dispute resolution provisions of the 1992 Helsinki Convention are quite
traditional but not particularly detailed. The parties have discretion in what means of
dispute resolution they employ, including negotiations, “or any other means of dispute
settlement” acceptable to them. Arbitration and judicial settlement are also
envisaged, but only as non-binding options.
Among the means of dispute resolution provided for under the Rhine Convention,
negotiations are referred to as the first and primary means of settlement. However, a
closer look at the dispute settlement provisions reveals a very heavy reliance on
arbitration as the ultimate resort. This follows the pattern established by the pre-
decessor agreements on the Rhine. Under two separate 1976 Rhine Conventions, all
disputes unresolved through negotiations were to be referred to arbitration at the
request of any party to the dispute.
Under the 1992 SADC Treaty, which is a “framework” agreement for both SADC
protocols on shared watercourses, its parties must resolve disputes amicably primarily
through negotiations as the first instance. Where this fails, the matter can be
63
submitted to the SADC Tribunal, created to
“ensure adherence to and the proper inter- 1992 UN ECE Helsinki Convention
pretation of the provisions of the treaty and Article 22. Settlement of Disputes
the subsidiary instruments, and to adju-
dicate upon such disputes as may be 1. If a dispute arises between two or more
Parties about the interpretation or
referred to it.”
application of this Convention, they shall
The decisions of the Tribunal are final
seek a solution by negotiation or by any
and binding. The Protocol, which contains other means of dispute settlement
the operational norms of the Tribunal, acceptable to the parties to the dispute.
including its rules of procedure, is very
2. When signing, ratifying, accepting,
detailed. The Tribunal has jurisdiction over
approving or acceding to this Convention,
all disputes related to the Treaty and all
or at any time thereafter, a Party may
protocols related to interpretation, applic- declare in writing to the Depositary that,
ation, validity, and “all matters specifically for a dispute not resolved in accordance
provided for.” Its jurisdiction covers with paragraph 1 of this article, it accepts
“disputes between states, and between one or both of the following means of
natural or legal persons and states,” and dispute settlement as compulsory in
the Tribunal has exclusive jurisdiction over relation to any Party accepting the same
disputes between states and the obligation:
community.
a) Submission of the dispute to the
The 2000 Revised Shared
International Court of Justice;
Watercourses Protocol views the Tribunal b) Arbitration in accordance with the
as an important instrument of dispute procedure set out in annex IV. If the
settlement, along with institutional organs parties to the dispute have accepted
established under the Protocol, which are both means of dispute settlement
also responsible for assisting “in resolving referred to in paragraph 2 of this
potential conflicts on shared watercourses.” article, the dispute may be submitted
The parties are required to “strive to only to the International Court of
resolve all disputes regarding the Justice, unless the parties agree
implementation, interpretation or appli- otherwise.
cation of the Protocol amicably,” failing
which the matter is to be referred to the SADC Tribunal. So far the Tribunal has not
yet heard any water related disputes, although Namibia and Botswana submitted their
dispute concerning a boundary river to the World Court.
In North America, Canada, Mexico, and the United States rely heavily on their
institutional mechanisms to resolve conflicts over shared waters. The 1909 Boundary
Waters Treaty (BWT) was concluded between Great Britain, on behalf of Canada, and
the United States with the specific purpose of preventing “disputes regarding the use
of boundary waters” and settling all questions “pending between the United States
and the Dominion of Canada involving
1998 Rhine Convention, the rights, obligations, or interests of
Article 16 Settlement of Disputes either.” Central to the dispute settle-
ment objectives of the Treaty was the
“Should disputes arise . . . on the issue of the
creation of the International Joint
interpretation or application of this
Commission (IJC) with administrative,
Convention, the parties concerned will strive
for a solution by means of negotiations or any investigative and quasi-judicial powers.
other possibility of arbitration acceptable to The BWT sets up a multi-tiered
them. If it is not possible to settle the dispute approach to conflict resolution by
by this means and provided the parties to the establishing several categories of dis-
dispute do not decide otherwise, arbitration pute. As was discussed earlier, the IJC
proceedings according to the annexes to this plays a prominent role in resolving
Convention which are part of this Convention interstate differences. If the Joint
are carried out upon the demand of one of the Commission fails to settle a matter of
parties to the dispute.” difference submitted to it by both
64
parties, the contentious issue must be referred to third-party resolution (an umpire).
To the authors’ knowledge, the ICJ has not yet been asked to “adjudicate”
disputes and its role has been largely one of making recommendations on questions
referred to it by the two governments. Management of the numerous shared water
resources has been accomplished through the extensive use of technical advisory
committees and the conclusion of basin-specific agreements.
The International Boundary Waters Commission (IBWC), established under the
1944 International Boundary Waters Treaty between the United States and Mexico,
deals with controversies over shared water resources through the adoption of
“minutes.” More than 300 minutes have been adopted over the past six decades. The
most recent, “Minute 308” concluded in June 2002, brokered an arrangement whereby
Mexico provided 90,000 acre-feet of water to the United States as payment towards
its debt under the 1944 Treaty. The minute also provides for exchange of information
and support for new water conservation projects. A survey of the other 307 minutes
illustrates the array of problems the IBWC had to deal with: from very technical issues
to a number of project specific arrangements and emergency responses.
Asian countries also prefer to use their joint bodies in resolving disputes. The
Mekong Agreement, for example, provides that disputes (or differences) are to be
resolved, first by the Commission, failing which the matter is to be referred to the
Governments for negotiation, possible mediation or eventual settlement “according to
the principles of international law.” It is noteworthy, however, that the Agreement
contains no reference to any form of compulsory third party dispute settlement
procedures. This omission is not accidental. It reflects a general reluctance of the
Mekong river countries to use arbitration or adjudication as a means of dispute
resolution and signals their preference for internal measures (e.g. through the Mekong
Commission) and direct negotiations.
The dispute settlement provisions of the 1960 Indus Waters Treaty, which have
not yet been invoked by either party, are quite complex. The overarching objective
appears to be to resolve any “differences” internally within the commission, before
they become “disputes.” Issues that
cannot be resolved by the commission
will be deemed “differences,” which Mekong Agreement
may, depending on their classification,
Article 35. Resolution by Governments
be heard by a “neutral expert” (“quali-
fied engineer”) at the request of either In the event the Commission is unable to
commissioner. The difference will be resolve the difference or dispute within a
considered as a “dispute” if the matter timely manner, the issue shall be referred to
falls outside those listed in Annex F. the Governments to take cognisance of the
matter for resolution by negotiation through
Disputes are to be resolved through
diplomatic channels within a timely manner.
negotiation, and failing any successful
. . . Should the Governments find it necessary
outcome are subject to arbitration. or beneficial to facilitate the resolution of the
The current tensions between India matter, they may, by mutual agreement,
and Pakistan over the construction of request the assistance of mediation through
the hydro-electric/irrigation dam on an entity or party mutually agreed upon, and
the Chenab river may result in the thereafter to proceed according to the
third party dispute settlement pro- principles of international law.
visions under the Indus Treaty being
invoked for the first time.
7.3. Summary
Most of the existing international agreements – regional, watercourse-specific, and
bilateral – provide for a range of formal dispute settlement mechanisms: from
negotiations to third-party involvement, including optional or mandatory arbitration
65
and adjudication. The 1997 UN Watercourses Convention, as the only global
instrument of its kind, endorses the compulsory fact-finding procedure, which bridges
the gap between purely diplomatic means, entirely dependent upon the discretion of
the parties to the dispute, and binding third-party dispute resolution.
With respect to regional approaches, a couple of general observations can be
made. The state practice surveyed demonstrates the willingness of states to establish
joint bodies to deal with operational matters and to act as a port of first call for
possible disputes, an approach that promotes basin-wide cooperation and dispute
avoidance.
Extensive use and heavy reliance on joint commissions to perform the task of
dispute prevention (or act as pragmatic solution facilitators) is typical for different
water regimes, regardless of region. It was observed that one of the valuable aspects
of a joint commission is that it provides a forum where co-basin states may dispute
each other’s claims vigorously without involving their governments at a high level
(Bourne).
A distinctive characteristic feature of regional approaches to dispute settlement is
the disposition of states to permit third-party intervention in their transboundary
water controversies. In Africa and Europe, while institutional mechanisms play
important roles, arbitration and adjudication remain real options. On the other hand,
in both regions there is a visible tendency to introduce compliance facilitation
procedures under the auspices of their institutional bodies. In Asia and North America,
where there have been a regular series of conflicts of use, the focus is on the
employment of joint organs to resolve the contentious matters internally, without
recourse to external third party intervention. In Asia, in particular, there is a strong
tendency to avoid compulsory third-party involvement in water-related disputes, with
the “Mekong spirit” being positive evidence in support of such a regional approach.
The record of recent cases and those pending decision before the International Court
of Justice shows that African and European countries appear more willing to submit
their disputes to third-party adjudicative organs for resolution. While negotiations and
the use of joint bodies are still the preferred options, arbitration and adjudication
remain among the possible alternatives.
8. IMPLEMENTATION AND COMPLIANCE

8.1. Overview
Reaching an agreement is not in itself “the end of the road.” Once the treaty has been
concluded and become binding for its parties, it must be “implemented.” To
implement an international agreement means to fulfill one’s obligations established by
it. Thus, implementation can be defined as the states’ activities in their entirety aimed
at achieving the goals and objectives of the treaty regime. The character and nature
of these activities are determined by the nature of the states’ obligations under the
treaty. States parties may be required to adhere to a certain pattern of behavior, to
refrain from or to undertake certain actions (e.g., engage in cooperation by
exchanging information, or take national legal and administrative measures to control
pollution); to achieve specific targets (e.g., reduce water pollution to certain levels or
meet emission standards), or to carry out a project (e.g., construct and put into
operation a water installation).
Most of the “framework” watercourse agreements that establish legal foundations
for long-term cooperation make no provision for duration and could remain in force
indefinitely, but also contain a termination clause. Those that are concluded for a fixed
period of time usually provide for an automatic extension. Treaties that establish
obligations of result may be deemed fulfilled (implemented) once their objectives have
been attained. On the other hand, the implementation of obligations of conduct is
66
usually not limited by a specified time frame or dependent on a particular event, such
as the completion of construction works.
Thus, proper implementation of an international treaty is a crucial phase in
moving from actual or potential conflict to cooperation. Implementation of the
framework agreements, usually containing general obligations, is relatively easy to
achieve. This model has great relevance for transboundary waters, where early
commitment to cooperation is essential but details of cooperative arrangements need
time and dialogue. "Subsidiary" agreements, often in the form of protocols, can be
developed later, as information becomes available and confidence grows to address
specific needs such as quality standards, cost allocation, and benefit sharing (Berlin
Recommendations). These types of agreements, which require specific actions (such
as meeting agreed water quality standards or realization of a water allocation scheme)
that often entail significant financial commitments, are harder to realize.
States invest considerable resources in their efforts to conclude agreements
related to the management of their transboundary waters. However, ratification of a
treaty is not a guarantee of its due implementation. According to general international
law and its fundamental rule pacta sunt servanda states parties to a treaty are under
an obligation to perform it in good faith. But what happens if a party is unable or
unwilling to fulfill its treaty obligations?
A failure to implement a treaty, or to comply with its provisions, is a serious
political and legal issue. It can lead to a new conflict and undermine the very
foundation of the agreement reached by the parties. Traditional international law
deals with the issue of non-compliance through the mechanism of state responsibility,
whereby a state found in breach of its treaty obligation will be liable to another party.
However, this approach to enforcing treaty obligations has many shortcomings.
First, this approach is adversarial by its nature, turning one state into the
accuser and making another the accused – a situation not particularly conducive to
maintaining the good relations necessary for long-term cooperation. Second, although
the material breach of a treaty by one party entitles the other to suspend or terminate
the treaty in whole or in part, with respect to watercourse agreements this may not
always be to the benefit of the victim interested in achieving the treaty’s objectives.
That was aptly demonstrated in the Danube (Gabþikovo–Nagymaros) case, where
Slovakia insisted on the implementation of the 1977 Treaty notwithstanding its
unilateral termination by Hungary. Finally, in most cases involving utilization of
transboundary waters or environmental obligations generally, non-compliance is not
the result of a willful act but a consequence of ambiguous treaty provisions or, more
often, of the lack of capacity and resources to properly implement it. In the latter case
invoking state responsibility with a view to “punish” the offender may be
counterproductive.
8.2. New Approach to Ensuring Implementation: Compliance Control

A focus on ensuring compliance through non-adversarial and non-judicial measures –
compliance assurance (verification and control) systems or mechanisms – has become
the new and increasingly popular feature of some recent international environmental
conventions. Compliance is an integral component of implementation and refers to a
state’s behavior in terms of conformity with its commitments, while the compliance
assurance mechanism is a set of rules and procedures aimed at assessing, regulating,
and ensuring compliance (UNECE Geneva Strategy on Compliance). Compliance
control mechanisms are normally used to identify the acts of non-compliance, that is,
where a state does not meet its commitments, including its inability to give effect to
substantive norms and standards, to meet procedural requirements, or to fulfill
institutional obligations.
67
One distinctive feature of compliance assurance techniques is the emphasis on a
non-confrontational approach in addressing the issue of non-compliance. Although the
process of treaty implementation always implies a certain degree of compliance
control by one party with respect to another (or others), relatively few international
watercourse regimes provide for the use of formal compliance verification
mechanisms. In this regard they have been lagging behind some multilateral
environmental agreements.
8.3. Elements of Compliance Control Systems

A successful compliance assurance system requires a
commitment by the parties to monitor compliance with Key Elements of
their treaty obligations and, if necessary, to assist each Compliance System
other in achieving the goals and specific targets of an
agreed regime. This normally involves the use of Ɣ reporting
Ɣ review and evaluation
procedures and mechanisms specifically devised to
Ɣ support
enhance, improve and ensure compliance, rather than
reliance on traditional enforcement tools, such as state
responsibility and dispute resolution through arbitration or adjudication. This approach
entails a response to problems with compliance that, in the first instance, is positive,
forward-looking, non-confrontational, non-judicial and, which is supplementary to, yet
independent from, any existing dispute settlement machinery.
To achieve this, the focus must be on measures and incentives aimed at
facilitating the state performance in implementing the treaty regime. Ideally, the
instrument establishing the compliance verification procedure should be legally
binding. But the commitments subject to compliance review may arise out of both
formal agreements and non-legally binding instruments, such as recommendations,
guidelines, and voluntary undertakings. The compliance review process is greatly
enhanced by the elaboration of clear, easily measurable and verified primary rules,
objectives, or targets, such as quantifiable water allotments, fixed emission limits,
water quality objectives and criteria, lists of prohibited substances, and so on.
The cornerstone elements of a compliance strategy include:
ł an agreed baseline (benchmark) provisions

ł an agreed compliance review procedure, including an institutional mechanism
with a mandate to monitor compliance
ł a system of measures (incentives and disincentives) facilitating proper
performance and discouraging non-compliance.
Public access to information, and equal

access to justice are also considered
important elements of a compliance 1999 London Protocol on Water and
Health
regime.
Increasing emphasis on ensuring Article 15. Review of Compliance
compliance can be found in the UN ECE The Parties shall review the compliance of
treaties related to water resources (the the Parties with the provisions of this
1992 Helsinki Convention and the 1999 Protocol on the basis of the reviews and
London Protocol on Water and Health), assessments… Multilateral arrangements of
access to justice and public participation a non-confrontational, non-judicial and
(the 1998 Aarhus Convention), and, in consultative nature for reviewing
particular, to air pollution (the regime compliance shall be established by the
established under the 1979 Convention on Parties. . . . These arrangements shall
allow for appropriate public involvement.
the Long-Range Transboundary Air Pollu-
tion and its protocols provides the most
68
advanced regional model of compliance verification).
The first attempt to develop a comprehensive compliance control and assurance
strategy with respect to transboundary watercourses was initiated under the aegis of
the 1992 Helsinki Convention. The meeting of the parties created a working group to
draft a compliance review procedure based on the “Geneva Strategy and Framework
for Monitoring Compliance with Agreements on Transboundary Waters.”
The 1998 Rhine Convention is one of
the very few watercourse agreements that
establish a compliance control mechanism, The contracting parties regularly report to
using for this purpose the Rhine the [Rhine] commission:
Commission. The latter has a mandate “to
evaluate the effectiveness of the measures a) On legislative, regulatory or other
measures taken with a view to
decided on, in particular on the basis of the
implementing the rules of the convention
reports of the contracting parties, and the and the decisions of the commission.
results of monitoring programs and b) On the results of the measures
analyses of the Rhine ecosystem.” The implemented according to sub-paragraph
commission also has a right to adopt a).
decisions, which are to be implemented by c) On problems arising due to the implem-
the parties within a certain time limit. The entation of measures according to a).
Rhine basin states are required to submit
regular reports on how they implement the Should a contracting party not be able to
rules of the convention as well as the implement the decisions of the commission
or only be able to partly implement them it
decisions of the Commission. Failure to
will inform the others within a certain time
implement may trigger consultations limit individually set by the commission and
between the parties and a new decision by explain the reasons. Each delegation may
the commission on measures supporting move for consultations; such a move must
implementation. be met within two months.
Elements of compliance verification On the basis of the reports of the
have been introduced into the 2000 SADC contracting parties or on the basis of
Revised Protocol, which requires the consultations the commission may decide
Committee of Water Ministers to “oversee on measures supporting the implementation
and monitor the implementation” and to of decisions.
“provide regular updates to the Council on
the status of the implementation” of the protocol. The Water Sector Coordinating Unit,
the executive agency of the Water Sector, also has a role in monitoring compliance
and is required to “liaise with other SADC organs and shared water institutions on
matters pertaining to the implementation” of the protocol.
8.4. Summary
While the traditional approach to dealing with states that fail to meet their treaty
obligations relies on state responsibility and formal means of dispute resolution,
current international practice is shifting towards non-confrontational and non-judicial
arrangements. The trend to use positive incentives (“carrots”) and disincentives in
case of non-compliance (“sticks”) is particularly evident in multilateral environmental
regimes, established under the 1979 LRTAP Convention, 1987 Montreal (Ozone Layer)
Protocol, and some other instruments. The range of compliance strategies used is
broad: from reporting procedures to financial incentives and sanctions. Reporting is
viewed as a primary compliance verification tool. Reporting procedures are more
effective when based on an agreed format. Transparency and public participation
contribute to the effectiveness of compliance control regimes. Positive incentives
include enhanced access to technology and financial assistance, and may involve the
creation of special funds. Although sanctions (“sticks”), such as penalties and
withdrawal or suspension of privileges are not completely excluded, they are rarely
69
used. The main emphasis is always on non-confrontational compliance assistance
rather than formal enforcement
In contrast to the practice of some recent global environmental agreements,
most agreements on transboundary waters do not provide for the formal monitoring
of compliance, including compliance review procedures. There are several reasons for
this. First, formal compliance control mechanisms, including “compliance review” or
“treaty implementation” committees or similar bodies, are more suited for multilateral
regimes involving a large number of states. There are only few water-related
agreements that fall into this category. Second, compliance control mechanisms are
most effective in regimes that pursue concrete and verifiable objectives, rather than in
framework agreements mostly limited to general commitments. Again, not many
multilateral watercourse agreements establish such standards.
However, it is advisable that watercourse states consider including compliance
assurance mechanisms in their agreements as an additional tool of dispute
prevention. This applies in particular to treaties dealing with control and reduction of
water pollution or other agreements establishing verifiable quantitative and qualitative
targets and standards. The more elaborate and specific the watercourse treaties
become, the more important role compliance verification will play in ensuring their
effective implementation.
While compliance control mechanisms facilitate treaty implementation, problems
and disputes may still arise. For example, unforeseen circumstances may prevent
strict observance by one or more states of the treaty regime, as may occur in the case
of severe floods, drought, or changing natural conditions. What happens then? How
will such a situation be dealt with? Ideally, provisions allowing for adjusting to
changing circumstances should be included in the treaty itself. Problems of
implementation can often be resolved within joint bodies. Alternately, ad hoc
commissions can be established by agreement to deal with particular issues, as was
the case in the Lake Lanoux and Danube river disputes.
As a general comment, change is inherent in freshwater systems, and
watercourse agreements should be flexible and adaptable to changing circumstances.
The almost century-long peaceful management of more than 300 basins shared by
Canada and the United States demonstrates how a regime created in 1909 can not
only survive but successfully adapt to new conditions despite numerous challenges. A
similar longstanding and adaptive legal regime has evolved with respect to the
Colorado/Rio Grande rivers, shared by the United States and Mexico.
9. CONCLUSION
This part has examined the key elements of a “good” watercourse agreement: those
essential components and provisions that should be present or reflected in any
cooperative arrangement over shared transboundary waters. Watercourse states have
a range of options available to them in the design of their legal framework, but state
practice demonstrates that there should be agreement on the issues of scope,
substantive rules, procedural rules, institutional mechanisms, and dispute
avoidance/settlement procedures. Understanding and agreeing on the “rules of the
game” will go a long way in providing a regime that is sustainable and adequate to
meet the changing requirements in respect of shared freshwater resources.
The 1997 UN Watercourses Convention, the only global instrument of its kind,
provides a framework of substantive and procedural rules that should be considered
by states. That instrument is based on the primacy of the rule of equitable and
reasonable utilization, a conventional and customary international law endorsed by
states in their relations involving shared transboundary waters. The procedural rules
set forth in Parts II and III of the UN Convention are especially useful to watercourse
70
states that have no agreed arrangements for planned measures. States are left to
make their own arrangements regarding institutional mechanisms. The state practice
surveyed in this study reveals a broad range of options to select from. On the matter
of dispute settlement, the formula proposed under the 1997 IWC Convention –
traditional means coupled with compulsory fact-finding – offers states a predictable
and enforceable arrangement that is particularly suited to disputes over water.
71
PART FIVE: LESSONS LEARNED AND CHECKLIST OF ISSUES
1. OVERVIEW
With more than 250 major international watercourses, some of which cross the
world’s most water-hungry regions, and the growing demand for water, it appears
that conflicts over water are inevitable. Within an individual country’s borders, it is for
the national government to determine its national water policy, laws, and regulations,
including means of implementing and enforcing them. Where waters have their origin
in or flow into other nations’ territories, the issues of legal entitlements and
obligations with respect to these water resources become of crucial importance.
Conflicts between sovereign states over shared waters can be avoided through
predictable and enforceable legal frameworks, as demonstrated in this study.
International water law provides a coherent body of rules and mechanisms that assist
states in designing and implementing cooperative arrangements concerning their
shared waters.
2. LESSONS LEARNED
A summary of the most important findings of this report follows.
i. International law – the law of nations – is the only instrument available to states
to govern their relations concerning utilization and protection of their
transboundary freshwater resources. It provides both the legal framework that
makes it possible to determine respective legal rights and obligations, and the
mechanisms for ensuring compliance and resolving disputes between states.
ii. States have increasingly found it beneficial to base their relations concerning
utilization of shared water resources on international treaties, which as a rule
ensure greater stability and predictability of behavior. Although an international
treaty as such is not a guarantee against potential water conflicts (and history
shows that some disputes arose from arguments over interpretation and
application of treaty provisions), the absence of agreed legal frameworks
governing relations between states over their shared waters significantly
increases the possibility of water disputes.
iii. Ideally, legal regimes regulating utilization of transboundary watercourses should
involve all watercourse (or basin) countries, thus ensuring that the interests of
all potentially affected states are properly taken into consideration. Although
there exists no blueprint for an effective international legal framework for
cooperation, a combination of an “umbrella” treaty, which establishes certain
general obligations, and more specific agreements (protocols, “minutes,” and so
on), which deal with particular issues of water management and utilization, is
apparently becoming an increasingly popular model.
iv. International water law, as an integral part of public international law, has
evolved over the past fifty years into a system of rules, the most important of
which are reflected in the 1997 UN International Watercourses Convention, the
only universal treaty concerning transboundary waters. Most states have shown
their willingness to respect, apply, and abide by the general rules of international
water law, which establish parameters of permissible behavior. Both substantive
obligations, such as equitable and reasonable utilization, and procedural
requirements, such as prior notification and consultation concerning planned
projects, have found support and endorsement in state practice, including
numerous multilateral and bilateral agreements.
72
v. The cornerstone principle of international water law that governs international
relations in the field of transboundary water resources is that each watercourse
state is entitled to a reasonable and equitable use of the watercourse. The
principle of equitable and reasonable utilization should be applied through
consideration of all the relevant factors in each particular case. The weight to be
given to each factor is to be determined by its importance in comparison with
that of other relevant factors. In determining what is a reasonable and equitable
share, all relevant factors are to be considered together and a conclusion should
be made on the basis of the whole.
vi. Conflicts over water arise out of different circumstances, but almost always
directly or indirectly involve issues of allocation. States have demonstrated their
ability to find solutions to problems of transboundary water allocation, from
dividing control over the entire watercourse (Indus river), to water apportioning
(Ganges river), to sharing “downstream benefits” (Columbia river), to water-
energy swaps (Syr-Darya). However, water conflicts are inevitable; they have
occurred in the past and will arise in the future.
vii. Thus, one of the most important functions of international law is to manage and
resolve actual or potential conflicts peacefully through the use of available
dispute settlement mechanisms and techniques. A range of such means – from
negotiations, to mediation, arbitration, and adjudication – have been resorted to
in resolving past water disputes. Compulsory fact-finding procedure is a
relatively new mechanism established under the 1997 International
Watercourses Convention that has yet to be tried.
viii. The present tendency is an increased reliance on various institutional bodies,
such as joint river commissions, as a main forum where potential conflicts over
water can be considered and “disarmed” without being elevated to a formal
diplomatic level. Another current trend is the growing emphasis on dispute
avoidance and prevention, primarily through the use of compliance verification
and support systems, as evidenced by state practice in Europe and Southern
Africa.
ix. The implementation of agreed arrangements is as important as settlement of
conflicts over water in the first place. Proper performance of treaty obligations
both helps to avoid possible further disputes and contributes to confidence
building and promotion of cooperation.
x. International treaty regimes should be flexible enough to reflect the constantly
changing natural status of water resources, as well as growing human impact
and demands on them. Ideally, the regimes should contain built-in flexibility
mechanisms that would allow them to adapt to changing conditions (such as
fluctuations in precipitation, droughts, floods, and other emergency situations).
Existing international practice demonstrates different approaches to achieving
greater adaptability of treaty regimes, the most effective of which is to entrust a
joint institutional mechanism with a mandate to respond to natural and human-
related changes in shared water resources.
3. PCCP CHECKLIST
In developing their national water strategies, transboundary watercourses states
would be well advised to consider the following issues:
i. To what extent does a particular state depend on transboundary freshwater

resources (surface waters and aquifers)?
ii. What are the legal rules (treaty and customary) that govern the particular
international watercourse?
73
– identify the legal regime governing the watercourse (i.e., boundary, armistice,
friendly relations, regional framework agreements, and specific watercourse
treaties)
– determine the nature of legal rights and obligations of the specific watercourse
agreements.
In analyzing an existing, or in designing a new, treaty over water, watercourse states

should consider the following issues:
a) Scope.
ł What are the geographical (hydrographical, hydrological) boundaries of the
waters resources to be regulated?
ł What activities should be governed by an agreement?
ł What states should (or can) participate in an agreement?
b) Substantive Rules: Equitable and Reasonable Utilization

ł What are the rules that govern the lawfulness of existing or new uses?
ł Develop a framework for the allocation of existing and future uses based on the
principle of equitable and reasonable utilization, taking into consideration the
following key issues:
– Vital human needs and in-stream flow. Identify the water resources needed to
satisfy vital human and environmental needs (domestic drinking and
sanitation, livestock, “food production to alleviate hunger,” and in-stream
flows sufficient to protect the watercourse, inter alia). These “first calls” on the
water are not in and of themselves legal obligations, but a competing use that
harms these beneficial uses will probably be considered “unreasonable.”
– Existing uses. Identify all existing uses, including harm or future harm,
projecting future requirements (establish a base line for the future
projections), based on planning policies at national government level and
international standards (such as WHO).
– Proposed uses. Identify proposed uses (not a “wish list,” but uses that are
economically and environmentally feasible); these must be “carefully studied
and objectively evaluated.”
– Consumptive and non-consumptive uses. Identify the quantity of water
available in the watercourse system for consumptive and non-consumptive
uses (select and justify the standard to be used: mean annual flow and
temporal variability, inter alia).
– Conservation measures. Identify the economically feasible conservation
measures and water resources available from those measures. The objective is
to compare the increased value of efficiency (conservation measures to meet
existing or proposed uses; economic gains compared to cost of achieving
greater efficiency not inefficiency of existing use to benefits of proposed uses)
– Alternative resources. Identify financially practicable alternative resources to
meet needs (water and other resources)
– Allocation. Allocate the “beneficial” uses of the transboundary watercourse,
attempting to attain the optimal utilization: the maximum possible benefits for
all watercourse states, achieving the greatest possible satisfaction of all their
needs, while minimizing the detriment to, or unmet needs of, each
– Environmental requirements. Identify the environmental needs of the
watercourse and related ecosystem.
– Changing circumstances. What are the obligations where circumstances
change? How are these accommodated under the agreement?
74
– Emergency measures. What are the obligations in times of emergency? How
are these accommodated under the agreement?
c) Procedural Rules
ł What are the procedural rules that apply to planned measures?
ł Is there a prior notification requirement?
ł What information is to be provided for planned measures?
ł Is there an agreement concerning a regular exchange of information; when, and
of what type?
d) Institutional Mechanisms
ł What are the institutional mechanisms established (or to be established) under
an agreement?
ł What is the composition and mandate of the institutional mechanism?
ł What role and mandate is there for dispute settlement and avoidance?
ł Are there any compliance verification tasks?
ł Are there any elements to allow flexibility and adaptability of the treaty regime
to changing circumstances?
e) Dispute Avoidance/Settlement/Compliance
ł What are the provisions for dispute avoidance?
ł What provisions are there for monitoring compliance?
ł What dispute settlement means are envisaged: negotiations, inquiry, fact-
finding, conciliation, arbitration, adjudication?
f) Miscellaneous Provisions
ł What term? (5-year? 25-year? Indefinite?)
ł How to modify, amend, terminate?
ł Entry into force? (What modalities?)
ł Relationship to other agreements?
4. CONCLUSIONS
This study had as its primary purpose to demonstrate how transboundary watercourse
states have developed and pursued practical solutions to the problems associated with
managing and allocating their shared freshwater resources. Most of these
arrangements are spelt out in international agreements, which are guided by the
primary rules of international law reflected in the 1997 UN Watercourses Convention.
However, the state practice discussed in this report also reveals that nations have a
broad range of options available to them in the design and implementation of their
agreements. Fundamental to the most successful treaty regimes is an effective
institutional mechanism that deals with the issues of implementation, including
dispute avoidance. The introduction of more formal mechanisms for monitoring
compliance, based on non-confrontational and supportive reporting and review
processes, illustrates yet another instrument aimed at ensuring cooperative relations
among watercourse states.
Although the world faces a freshwater crisis and water disputes are inevitable,
“water wars” must and can be avoided. States have shown time and again that they
are willing and ready to pursue peaceful water relations through the use of the rules
of international water law in their management of transboundary waters.
75
ANNEX I: RELEVANT FACTORS MATRIX (DUNDEE
KNOWLEDGE AND RESEARCH PROJECT R8039)*
Relevant Factors Matrix
Sources of data,
Comments & data required to methodology,
Factor and components
assess the factor assumptions,
and problems
Geographic ł Geographical context
1. What? Hydrographic ł Extent of drainage basin or
aquifer in the state
The physical Hydrological ł Mean water availability –
(natural) Hydro- surface and ground water
characteristics geological ł Variability of the resources
of the ł Water quality
watercourse ł Contribution of water to the
watercourse by each
watercourse state
ł Potential climate change
impacts
Climatic ł Climate type
ł Variability and trends
ł Potential climate change
impacts
Ecological/ ł Environmental goods and
Environmental service
2. Who? Present and ł Total population in the study
projected country and in the other
Population in population TWSs
the basin ł Population within the
watercourse catchment area
and dependent on the water
of the watercourse
ł Growth and migration of
population
ł Livestock
3. What Existing uses
uses? Potential uses
Extent of
Uses served “Vital human
by the needs”
watercourse Existing
structure of
use
Dependence ł Population dependent on
of the these economic activities
economy on ł Share of GDP, tax revenues,
these employment, foreign
activities exchange earnings
Social use ł Human development index
ł Customary uses
ł Gender uses
Ecological/ ł Water needed to maintain
environmental ecosystem functioning
use ł Population dependent on the
ecosystem
76
Relevant Factors Matrix
Sources of data,
Comments & data required to methodology,
Factor and components
assess the factor assumptions,
and problems
4. What Impacts of ł Beneficial and adverse
Impacts? existing and impacts
potential uses ł Transboundary and national
Impacts effects
caused by the ł Changes in physical
use of the characteristics (quantity,
watercourse quality)
in one state ł Social and economic impacts
on the uses in
the others
5. What Specific ł Consumptive use (present
Options? (comparative and future)
efficiency of ł Non-consumptive use
Efficiency of use)
and Broad ł Alternative source of water
alternatives to (alternatives for existing or planned uses
the use of the to use) ł Alternatives to using water
watercourse (which provide similar
benefits)
6. Other
relevant
factors
The Relevant Factors Matrix has been developed under the DFID Knowledge and Research Project (KaR)
Contract No R8039, “Transboundary Water Resources Management: Using the Law to Develop Effective
National Water Strategy: “Poverty Eradication through Enforceable Rights to Water” (*see explanatory
note below).
The Relevant Factors Matrix, driven in the first instance by legal research, represents
a non-exhaustive list of key factors and a method for the collection of data to identify
these, based on legal, economic and hydrologic expertise. Factors 1 and 2 set the
physical context (“What,” “Who”); Factor 3 identifies demand (“What Uses”); Factor 4
aims to set forth the consequences of the uses (“What Impact”); and Factor 5
requires consideration of alternative uses (“What Options”). Factor 6 permits
identification of additional relevant factors.
Notes on the KaR Research Project: Contract No R8039

Transboundary Water Resources Management: Using the Law to Develop
Effective National Water Strategy
When a state draws on more than its equitable share of water or pollutes the
transboundary freshwater resources located in its territory, other states are affected.
With close to 300 major watercourses shared by two or more states, growing
demands for water provide a potential for both cooperation and conflict all over the
world. But what are the watercourse state’s legal rights and obligations and who
defines them?
The principal aim of the Dundee Knowledge and Research (KaR) project is to
develop a tool that would enable a transboundary watercourse state (TWS) to identify
its legal entitlement and obligations with respect to shared freshwater resources. This
77
would assist a TWS in developing a national water policy that ensures reasonable and
equitable access to freshwater resources for all, especially the most disadvantaged.
The Dundee KaR project aims to develop a Legal Assessment Model (LAM), to
establish a set of gauging components, or "quantitative and qualitative parameters,”
to support national governments in determining with increased certainty their
transboundary water entitlements and obligations. The LAM includes a series of data
collection tools (factors matrix, legal audit, glossary of terms, and method of
evaluation) designed to enable a TWS to comply with its international obligations.
The KaR project carried out by the International Water Law Research Institute
(IWLRI), Department of Law, University of Dundee, is headed by Dr Patricia Wouters,
Director of the Institute. Water resource experts with expertise in economics,
hydrology and law conduct the project, working in interdisciplinary teams on the three
project case studies in China (upstream), Mozambique (downstream) and Palestine
(transboundary groundwater).
The Inception Report was issued in February 2002 for public dissemination and is
available to view at the website:
www.dundee.ac.uk/law/iwlri.
The project’s expected completion date is March 31 2003, with the final report
and dissemination strategy following that date. If you require further information
please refer to the website, contact Dr Wouters or the project assistant at IWLRI on
+44 (0)1382 344451, or email
p,k.wouters@dundee.ac.uk.
78
ANNEX II: THE 1997 UN WATERCOURSES CONVENTION
UNITED NATIONS: CONVENTION ON THE LAW OF THE NON-

NAVIGATIONAL USES OF INTERNATIONAL WATERCOURSES*
[Adopted by the UN General Assembly and
Opened to Signature, May 21, 1997]
*[Reproduced from United Nations Document A/51/869. April 11, 1997, which is the
Report of the Sixth Committee convening as the Working Group of the Whole at its
second session. The Working Group of the Sixth Committee held its second session
from March 24 to April 4 1997; for the report of the Sixth Committee on the work of
the Working Group at its first session (October 7 to 25 1996) see UN Document
A/51/624. At the second session, the Chairman of the Working Group of the Sixth
Committee took note of understandings pertaining to the following articles of the
Convention: 1; 2(c); 3; 6(1)(e); 7(2); 10; 21; 22; 23; 28; and 29. Paragraph 8 of the
Report in which those understandings are noted appears at 36 I.L.M. 719 (1997),
following the text of the Convention.
On May 21 1997, by Resolution 5/229, the UN General Assembly adopted the
Convention on the Law of Non-navigational Uses of International Watercourses, by a
vote of 103 in favor to three against (Burundi, China, and Turkey), with twenty-seven
abstentions (Andorra, Argentina, Azerbaijan, Belgium, Bolivia, Bulgaria, Colombia,
Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali,
Monaco, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, and
Uzbekistan). The Convention was opened to signature on the same day, and remained
open for signature until May 20, 2000.
For additional information contact the UN Treaty Section, Office of Legal Affairs,
Secretariat Building S3200, UN Headquarters, New York, NY 10017, U.S.A. (tel.:
(212) 963-5047; fax: (212) 963-3693).]
79
Preamble
PART I. INTRODUCTION
Article 1 Scope of the present Convention
Article 2 Use of terms
Article 3 Watercourse agreements
Article 4 Parties to watercourse agreements
PART II. GENERAL PRINCIPLES

Article 5 Equitable and reasonable utilization and participation
Article 6 Factors relevant to equitable and reasonable utilization
Article 7 Obligation not to cause significant harm
Article 8 General obligation to cooperate
Article 9 Regular exchange of data and information
Article 10 Relationship between different kinds of uses
PART III. PLANNED MEASURES.

Article 11 [Exchange of] Information concerning planned measures
Article 12 Notification concerning planned measures with possible adverse effects
Article 13 Period for reply to notification
Article 14 Obligations of the notifying State during the period for reply
Article 15 Reply to notification
Article 16 Absence of reply to notification
Article 17 Consultations and negotiations concerning planned measures
Article 18 Procedures in the absence of notification
Article 19 Urgent implementation of planned measures
PART IV. PROTECTION, PRESERVATION AND MANAGEMENT

Article 20 Protection and Preservation of ecosystems
Article 21 Prevention, reduction and control of pollution
Article 22 Introduction of alien or new species
Article 23 Protection and Preservation of the marine environment
Article 24 Management
Article 25 Regulation
Article 26 Installations
PART V. HARMFUL CONDITIONS AND EMERGENCY SITUATIONS

Article 27 Prevention and mitigation of harmful conditions
Article 28 Emergency situations
PART VI. MISCELLANEOUS PROVISIONS

Article 29 International watercourses and installations in time of armed conflict
Article 30 Indirect procedures
Article 31 Data and information vital to national defence or Security
Article 32 Non-discrimination
Article 33 Settlement of disputes
PART VII. FINAL CLAUSES

Article 34 Signature
Article 35 Ratification, acceptance, approval or accession
Article 36 Entry into force
Article 37 Authentic texts [Depositary]
80
[Arabic, Chinese, English, French, Russian and Spanish; depositary is the UN
Secretary-General]
ANNEX: ARBITRATION
Article 1 [APPLICABLE RULES]
Article 2 [REFERRAL OF DISPUTE TO ARBITRATION]
Article 3 [COMPOSITION OF ARBITRAL TRIBUNAL]
Article 4 [CHAIRMAN]
Article 5 [APPLICABLE LAW]
Article 6 [RULES OF PROCEDURE]
Article 7 [INTERIM MEASURES]
Article 8 [RESPONSIBILITIES OF THE PARTIES]
Article 9 [COSTS OF THE TRIBUNAL]
Article 10 [INTERVENTION OF PARTIES]
Article 11 [COUNTERCLAIMS]
Article 12 [DECISION-MAKING BY MAJORITY]
Article 13 [FAILURE TO APPEAR OR DEFEND; HEARINGS IN ABSENTIA]
Article 14 [FINAL DECISION; BINDING EFFECT]
[STATEMENTS OF UNDERSTANDING PERTAINING TO CERTAIN ARTICLES OF THE

CONVENTION]
81
Convention on the Law of the Non-navigational Uses of
International Watercourses
The Parties to the present Convention,

Conscious of the importance of international watercourses and the non-
navigational uses thereof in many regions of the world,
Having in mind Article 13, Paragraph 1 (a), of the Charter of the United Nations,
which provides that the General Assembly shall initiate studies and make
recommendations for the purpose of encouraging the progressive development of
international law and its codification,
Considering that successful codification and progressive development of rules of
international law regarding non-navigational uses of international watercourses would
assist in promoting and implementing the purposes and principles set forth in Articles
1 and 2 of the Charter of the United Nations,
Taking into account the problems affecting many international watercourses
resulting from, among other things, increasing demands and pollution,
Expressing the conviction that a framework convention will ensure the utilization,
development, conservation, management and protection of international watercourses
and the promotion of the optimal and sustainable utilization thereof for present and
future generations,
Affirming the importance of international cooperation and good-neighbourliness
in this field,
Aware of the special situation and needs of developing countries,
Recalling the principles and recommendations adopted by the United Nations
Conference on Environment and Development of 1992 in the Rio Declaration and
Agenda 21,
Recalling also the existing bilateral and multilateral agreements regarding the
non-navigational uses of international watercourses,
Mindful of the valuable contribution of international organizations, both
governmental and non-governmental, to the codification and progressive development
of international law in this field,
Appreciative of the work carried out by the International Law Commission on the
law of the non-navigational uses of international watercourses,
Bearing in mind United Nations General Assembly resolution 49/52 of 9
December 1994,
Have agreed as follows:
82
PART I. INTRODUCTION
Article 1
Scope of the present Convention
1. The present Convention applies to uses of international watercourses and of their

waters for purposes other than navigation and to measures of protection, preservation
and management related to the uses of those watercourses and their waters.
2. The uses of international watercourses for navigation is not within the scope of
the present Convention except insofar as other uses affect navigation or are affected
by navigation.
Article 2
Use of terms
For the purposes of the present Convention:

(a) “Watercourse” means a system of surface waters and groundwaters constituting
by virtue of their physical relationship a unitary whole and normally flowing into a
common terminus;
(b) “International watercourse” means a watercourse, parts of which are situated in
different States;
(c) “Watercourse State” means a State Party to the present Convention in whose
territory part of an international watercourse is situated, or a Party that is a regional
economic integration organization, in the territory of one or more of whose Member
States part of an international watercourse is situated;
(d) “Regional economic integration organization” means an organization constituted
by sovereign States of a given region, to which its member States have transferred
competence in respect of matters governed by this Convention and which has been
duly authorized in accordance with its internal procedures, to sign, ratify, accept,
approve or accede to it.
Article 3
Watercourse agreements
1. In the absence of an agreement to the contrary, nothing 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.
2. Notwithstanding the provisions of paragraph 1, parties to agreements referred to
in paragraph 1 may, where necessary, consider harmonizing such agreements with
the basic principles of the present Convention,
3. Watercourse States may enter into one or more agreements, hereinafter referred
to as watercourse agreements, which apply and adjust the provisions of the present
Convention to the characteristics and uses of a particular international watercourse or
part thereof.
4. Where a watercourse agreement is concluded between two or more watercourse
States, it shall define the waters to which it applies. Such an agreement may be
entered into with respect to an entire international watercourse or any part thereof or
a particular project, programme or use except insofar as the agreement adversely
affects, to a significant extent, the use by one or more other watercourse States of
the waters of the watercourse, without their express consent.
83
5. Where a watercourse State considers that adjustment and application of the
provisions of the present Convention is required because of the characteristics and
uses of a particular international watercourse, watercourse States shall consult with a
view to negotiating in good faith for the purpose of concluding a watercourse
agreement or agreements.
6. Where some but not all watercourse States to a particular international
watercourse are parties to an agreement, nothing in such agreement shall affect the
rights or obligations under the present Convention of watercourse States that are not
parties to such an agreement.
Article 4
Parties to watercourse agreements
1. Every 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.
2. A watercourse State whose use of an international watercourse may be affected
to a significant extent by the implementation of a proposed watercourse agreement
that applies only to a part of the watercourse or to a particular project, programme or
use is entitled to participate in consultations on such an agreement and, where
appropriate, in the negotiation thereof in good faith with a view to becoming a party
thereto, to the extent that its use is thereby affected.
PART II. GENERAL PRINCIPLES
Article 5
Equitable and reasonable utilization and participation
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 6
Factors relevant to equitable and reasonable utilization
1. Utilization of an international watercourse in an equitable and reasonable manner

within the meaning of article 5 requires taking into account all relevant factors and
circumstances, including:
(a) Geographic hydrological, climatic, ecological and other factors of a natural
character;
(b) The social and economic needs of the watercourse States concerned;
(c) The population dependent on the watercourse in each watercourse State;
84
(d) The effects of the use or uses of the watercourses in one watercourse State
on other watercourse States;
(e) Existing and potential uses of the watercourse;
(f) Conservation, protection, development and economy of use of the water
resources of the watercourse and the costs of measures taken to that
effect;
(g) The availability of alternatives, of comparable value, to a particular planned
or existing use.
2. In the application of article 5 or paragraph 1 of this article, watercourse States
concerned shall, when the need arises, enter into consultations in a spirit of
cooperation.
3. The weight to be given to each factor is to be determined by its importance in
comparison with that of other relevant factors. In determining what is a reasonable
and equitable use, all relevant factors are to be considered together and a conclusion
reached on the basis of the whole.
Article 7
Obligation not to cause significant harm
1. Watercourse States shall, in utilising an international watercourse in their

territories, take all appropriate measures to prevent the causing of significant harm to
other watercourse States.
2. Where significant harm nevertheless is caused to another watercourse State, the
States whose use causes such harm shall, in the absence of agreement to such use,
take all appropriate measures having due regard for the provisions of articles 5 and 6,
in consultation with the affected State, to eliminate or mitigate such harm and, where
appropriate, to discuss the Question of compensation.
Article 8
General obligation to cooperate
1. Watercourse States shall cooperate on the basis of sovereign equality, territorial

integrity, mutual benefit and good faith in order to attain optimal utilization and
adequate protection of an international watercourse.
2. In determining the manner of such cooperation, watercourse States may
consider the establishment of joint mechanisms or commissions, as deemed necessary
by them, to facilitate cooperation on relevant measures and procedures in the light of
experience gained through cooperation in existing joint mechanisms and commissions
in various regions.
Article 9
Regular exchange of data and information
1. Pursuant to article 8, watercourse States shall on a regular basis exchange

readily available data and information on the condition of the watercourse, in
particular that of a hydrological, meteorological, hydrogeological and ecological nature
and related to the water quality as well as related forecasts.
2. If a watercourse State is requested by another watercourse State to provide data
or information that is not readily available, it shall employ its best efforts to comply
with the request but may condition its compliance upon payment by the requesting
85
State of the reasonable costs of collecting and, where appropriate, processing such
data or information.
3. Watercourse States shall employ their best efforts to collect and, where
appropriate, to process data and information in a manner which facilitates its
utilization by the other watercourse States to which it is communicated.
Article 10
Relationship between different kinds of uses
1. In the absence of agreement or custom to the contrary, no use of an

international watercourse enjoys inherent priority over other uses,
2. In the event of a conflict between uses of an international watercourse, it shall be
resolved with reference to articles 5 to 7, with special regard being given to the
requirements of vital human needs.
PART III. PLANNED MEASURES
Article 11
Information concerning planned measures
Watercourse States shall exchange information and consult each other and, if
necessary, negotiate on the possible effects of planned measures on the condition of
an international watercourse.
Article 12
Notification concerning planned measures with possible adverse effects
Before a watercourse State implements or permits the implementation of planned

measures which may have a significant adverse effect upon other watercourse States,
it shall provide those States with timely notification thereof. Such notification shall be
accompanied by available technical data and information, including the results of any
environmental impact assessment, in order to enable the notified States to evaluate
the possible effects of the planned measures.
Article 13
Period for reply to notification
Unless otherwise agreed:

(a) A watercourse State providing a notification under article 12 shall allow the
notified States a period of six months within which to study and evaluate
the possible effects of the planned measures and to communicate the
findings to it;
(b) This period shall, at the request of a notified State for which the evaluation
of the planned measures poses special difficulty, be extended for a period of
six months.
Article 14
Obligations of the notifying State during the period for reply
During the period referred to in article 13, the notifying State:
86
(a) Shall cooperate with the notified States by providing them, on request, with
any additional data and information that is available and necessary for an
accurate evaluation; and
(b) Shall not implement or permit the implementation of the planned measures
without the consent of the notified States.
Article 15
Reply to notification
The notified States shall communicate their findings to the notifying State as early as
possible within the period applicable pursuant to article 13. If a notified State finds
that Implementation of the planned measures would be inconsistent with the
provisions of articles 5 or 7, it shall attach to its finding a documented explanation
setting forth the reasons for the finding.
Article 16
Absence of reply to notification
1. If, within the period applicable pursuant to article 13, the notifying State receives
no communication under article 15, it may, subject to its obligations under articles 5
and 7, proceed with the implementation of the planned measures, in accordance with
the notification and any other data and information provided to the notified States,
2. Any claim to compensation by a notified State which has failed to reply within the
period applicable pursuant to article 13 may be offset by the costs incurred by the
notifying State for action undertaken after the expiration of the time for a reply which
would not have been undertaken if the notified State had objected within that period.
Article 17
Consultations and negotiations concerning planned measures
1. If a communication is made under article 15 that implementation of the planned

measures would be inconsistent with the provisions of articles 5 or 7, the notifying
State and the State making the communication shall enter into consultations and, if
necessary, negotiations with a view to arriving at an equitable resolution of the
situation,
2. The consultations and negotiations shall be conducted on the basis that each
State must in good faith pay reasonable regard to the rights and legitimate interests
of the other State.
3. During the course of the consultations and negotiations, the notifying State shall,
if so requested by the notified State at the time it makes the communication, refrain
from implementing or permitting the implementation of the planned measures for a
period of six months unless otherwise agreed.
Article 18
Procedures in the absence of notification
1. If a watercourse State has reasonable grounds to believe that another

watercourse State is planning measures that may have a significant adverse effect
upon it, the former State may request the latter to apply the provisions of article 12.
The request shall be accompanied by a documented explanation setting forth its
grounds.
87
2. In the event that the State planning the measures nevertheless finds that it is
not under an obligation to provide a notification under article 12, it shall so inform the
other State, providing a documented explanation setting forth the reasons for such
finding. If this finding does not satisfy the other State, the two States shall, at the
request of that other State, promptly enter into consultations and negotiations in the
manner indicated in paragraphs 1 and 2 of article 17.
3. During the course of the consultations and negotiations, the State planning the
measures shall, if so requested by the other State at the time it requests the initiation
of consultations and negotiations, refrain from implementing or permitting the
implementation of those measures for a period of six months unless otherwise agreed.
Article 19
Urgent implementation of planned measures
1. In the event that the implementation of planned measures is of the utmost

urgency in order to protect public health, public safety or other equally important
interests, the State planning the measures may, subject to articles 5 and 7,
immediately proceed to implementation, notwithstanding the provisions of article 14
and paragraph 3 of article 17.
2. In such case, a formal declaration of the urgency of the measures shall be
communicated without delay to the other watercourse States referred to in article 12
together with the relevant data and information.
3. The State planning the measures shall, at the request of any of the States
referred to in paragraph 2, promptly enter into consultations and negotiations with it
in the manner indicated in paragraphs 1 and 2 of article 17.
PART IV. PROTECTION PRESERVATION AND MANAGEMENT
Article 20
Protection and preservation of ecosystems
Watercourse States shall, individually and, where appropriate, jointly, protect and
preserve the ecosystems of international watercourses.
Article 21
Prevention, reduction and control of pollution
1. For the purpose of this article, pollution of an international watercourse means

any detrimental alteration in the composition or quality of the waters of an
international watercourse, which results directly or indirectly from human conduct.
2. Watercourse States shall, individually and, where appropriate, jointly, prevent,
reduce and control the pollution of an international watercourse that may cause
significant harm to other watercourse States or to their environment, including harm
to human health or safety, to the use of the waters for any beneficial purpose or to
the living resources of the watercourse. Watercourse States shall take steps to
harmonize their policies in this connection.
3. Watercourse States shall, at the request of any of them, consult with a view to
arriving at mutually agreeable measures and methods to prevent, reduce and control
pollution of an international watercourse, such as:
(a) Setting joint water quality objectives and criteria;
88
(b) Establishing techniques and practices to address pollution from point and
non-point sources;
(c) Establishing lists of substances the introduction of which into the waters of
an international watercourse is to be prohibited limited, investigated or
monitored.
Article 22
Introduction of alien or new species
Watercourse States shall take all measures necessary to prevent the introduction of
species, alien or new, into an international watercourse which may have effects
detrimental to the ecosystem of the watercourse resulting in significant harm to other
watercourse States.
Article 23
Protection and preservation of the marine environment
Watercourse States shall, individually and, where appropriate, in cooperation with

other States, take all measures with respect to an international watercourse that are
necessary to protect and preserve the marine environment, including estuaries, taking
into account generally accepted international rules and standards.
Article 24
Management
1. Watercourse States shall, at the request of any of them, enter into consultations
concerning the management of an international watercourse which may include the
establishment of a joint management mechanism.
2. For the purposes of this article, “management” refers, in particular, to:
(a) Planning the sustainable development of an international watercourse and
providing for the implementation of any plans adopted; and
(b) Otherwise promoting the rational and optimal utilization, protection and
control of the watercourse.
Article 25
Regulation
1. Watercourse States shall cooperate, where appropriate, to respond to needs or

opportunities for regulation of the flow of the waters of an international watercourse.
2. Unless otherwise agreed, watercourse States shall participate on an equitable
basis in the construction and maintenance or defrayal of the costs of such regulation
works as they may have agreed to undertake.
3. For the purposes of this article, regulation means the use of hydraulic works or
any other continuing measure to alter, vary or otherwise control the flow of the
waters of an international watercourse.
89
Article 26
Installations
1. Watercourse States shall, within their respective territories, employ their best
efforts to maintain and protect installations, facilities and other works related to an
international watercourse.
2. Watercourse States shall, at the request of any of them which has reasonable
grounds to believe that it may suffer significant adverse effects, enter into
consultations with regard to:
(a) The safe operation and maintenance of installations, facilities or other works
related to an international watercourse; and
(b) The protection of installations, facilities or other works from wilful or
negligent acts or the forces of nature.
PART V. HARMFUL CONDITIONS AND EMERGENCY SITUATIONS
Article 27
Prevention and mitigation of harmful conditions
Watercourse States shall, individually and, where appropriate, jointly, take all
appropriate measures to prevent or mitigate conditions related to an international
watercourse that may be harmful to other watercourse States, whether resulting from
natural causes or human conduct, such as flood or ice conditions, water-borne
diseases, siltation, erosion, salt-water intrusion, drought or desertification,
Article 28
Emergency situations
1. For the purposes of this article, emergency means a situation that causes, or
poses an imminent threat of causing, serious harm to watercourse States or other
States and that results suddenly from natural causes, such as floods, the breaking up
of ice, landslides or earthquakes, or from human conduct, such as industrial accidents.
2. A watercourse State shall, without delay and by the most expeditious means
available, notify other potentially affected States and competent international
organizations of any emergency originating within its territory.
3. A watercourse State within whose territory an emergency originates shall, in
cooperation with potentially affected States and, where appropriate, competent
international organizations, immediately take all practicable measures necessitated by
the circumstances to prevent, mitigate and eliminate harmful effects of the
emergency.
4. When necessary, watercourse States shall jointly develop contingency plans for
responding to emergencies, in cooperation, where appropriate, with other potentially
affected States and competent international organisations,
90
PART VI. MISCELLANEOUS PROVISIONS
Article 29
International watercourses and installations in time of armed conflict
International watercourses and related installations, facilities and other works shall
enjoy the protection accorded by the principles and rules of international law
applicable in international and non-international armed conflict and shall not be used
in violation of those principles and rules.
Article 30
Indirect procedures
In cases where there are serious obstacles to direct contacts between watercourse
States, the States concerned shall fulfil their obligations of cooperation provided for in
the present Convention, including exchange of data and information, notification,
communication, consultations and negotiations, through any indirect procedure
accepted by them.
Article 31
Data and information vital to national defence or security
Nothing in the present Convention obliges a watercourse State to provide data or

information vital to its national defence or security. Nevertheless, that State shall
cooperate in good faith with the other watercourse States with a view to providing as
much information as possible under the circumstances.
Article 32
Non-discrimination
Unless the watercourse States concerned have agreed otherwise for the protection of
the interests of persons, natural or juridical, who have suffered or are under a serious
threat of suffering significant transboundary harm as a result of activities related to an
international watercourse, a watercourse State shall not discriminate on the basis of
nationality or residence or place where the injury occurred, in granting to such
persons, in accordance with its legal system, access to judicial or other procedures, or
a right to claim compensation or other relief in respect of significant harm caused by
such activities carried on in its territory.
Article 33
Settlement of disputes
1. In the event of a dispute between two or more Parties concerning the

interpretation or application of the present Convention, the Parties concerned shall, in
the absence of an applicable agreement between them, seek a settlement of the
dispute by peaceful means in accordance with the following provisions.
2. If the Parties concerned cannot reach agreement by negotiation requested by
one of them, they may jointly seek the good offices of, or request mediation or
conciliation by, a third party, or make use, as appropriate, of any joint watercourse
institutions that may have been established by them or agree to submit the dispute to
arbitration or to the International Court of Justice,
91
3. Subject to the operation of paragraph 10, if after six months from the time of the
request for negotiations referred to in paragraph 2, the Parties concerned have not
been able to settle their dispute through negotiation or any other means referred to in
paragraph 2, the dispute shall be submitted, at the request of any of the Parties to the
dispute, to impartial fact-finding in accordance with paragraphs 4 to 9, unless the
Parties otherwise agree.
4. A Fact-finding Commission shall be established, composed of one member
nominated by each Party concerned and in addition a member not having the
nationality of any of the Parties concerned chosen by the nominated members who
shall serve as Chairman.
5. If the members nominated by the Parties are unable to agree on a Chairman
within three months of the request for the establishment of the Commission, any
Party concerned may request the Secretary-General of the United Nations to appoint
the Chairman who shall not have the nationality of any of the parties to the dispute or
of any riparian State of the watercourse concerned. If one of the Parties fails to
nominate a member within three months of the initial request pursuant to paragraph
3, any other party concerned may request the Secretary-General of the United
Nations to appoint a person who shall not have the nationality of any of the parties to
the dispute or of any riparian State of the watercourse concerned. The person so
appointed shall constitute a single-member Commission.
6. The Commission shall determine its own procedure.
7. The Parties concerned have the obligation to provide the Commission with such
information as it may require and, on request, to permit the Commission to have
access to their respective territory and to inspect any facilities, plant, equipment,
construction or natural feature relevant for the purpose of its inquiry.
8. The Commission shall adopt its report by a majority vote, unless it is a single-
member Commission, and shall submit that report to the Parties concerned setting
forth its findings and the reasons therefor and such recommendation as it deems
appropriate for an equitable solution of the dispute, which the Parties concerned shall
consider in good faith.
9. The expenses of the Commission shall be borne equally by the Parties concerned.
10. When ratifying, accepting, approving or acceding to the present Convention, or
at any time thereafter, a Party which is not a regional economic integration
organization may declare in a written instrument submitted to the Depositary that, in
respect of any dispute not resolved in accordance with paragraph 2, it recognizes as
compulsory ipso facto and without special agreement in relation to any Party
accepting the same obligation:
(a) Submission of the dispute to the International Court of Justice; and/or
(b) Arbitration by an arbitral tribunal established and operating, unless the
parties to the dispute otherwise agreed, in accordance with the procedure
laid down in the annex to the present Convention,
A Party which is a regional economic integration organization may make a declaration
with like effect in relation to arbitration in accordance with subparagraph (b).
92
PART VII. FINAL CLAUSES
Article 34
Signature
1. The present Convention shall be open for signature by all States and by regional
economic integration organizations from 21 May 1997 until 20 May 2000 at United
Nations Headquarters in New York.
Article 35
Ratification, acceptance, approval or accession
1. The present Convention is subject to ratification, acceptance, approval or

accession by States and by regional economic integration organizations. The
instruments of ratification, acceptance, approval or accession shall be deposited with
the Secretary-General of the United Nations.
2. Any regional economic integration organization which becomes a Party to this
Convention without any of its member States being a Party shall be bound by all the
obligations under the convention. In the case of such organizations, one or more of
whose member States is a Party to this convention, the organization and its member
States shall decide on their respective responsibilities for the performance of their
obligations under the Convention. In such cases, the organization and the member
States shall not be entitled to exercise rights under the Convention concurrently.
3. In their instruments of ratification, acceptance, approval or accession, the
regional economic integration organizations shall declare the extent of their
competence with respect to the matters governed by the Convention. These
organizations shall also inform the Secretary-General of the United Nations of any
substantial modification in the extent of their competence.
Article 36
Entry into force
1. The present Convention shall enter into force on the ninetieth day following the
date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or
accession with the Secretary-General of the United Nations.
2. For each State or regional economic integration organization that ratifies, accepts
or approves the Convention or accedes thereto after the deposit of the thirty-fifth
instrument of ratification, acceptance, approval or accession, the Convention shall
enter into force on the ninetieth day after the deposit by such State or regional
economic integration organization of its instrument of ratification, acceptance,
approval or accession.
3. For the purposes of paragraphs 1 and 2, any instrument deposited by a regional
economic integration organization shall not be counted as additional to those
deposited by States.
93
Article 37
Authentic texts
The original of the present Convention, of which the Arabic, Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized
thereto, have signed this Convention.
DONE at New York, this 21st day of May one thousand nine hundred and ninety-
seven.
94
ANNEX
ARBITRATION
Article 1
Unless the parties to the dispute otherwise agree, the arbitration pursuant to Article
33 of the convention shall take place in accordance with articles 2 to 14 of the present
annex.
Article 2
The claimant party shall notify the respondent party that it is referring a dispute to
arbitration pursuant to Article 33 of the convention. The notification shall state the
subject matter of arbitration and include, in particular, the articles of the Convention,
the interpretation or application of which are at issue. If the parties do not agree on
the subject matter of the dispute, the arbitral tribunal shall determine the subject
matter.
Article 3
1. In disputes between two parties, the arbitral tribunal shall consist of three
members. Each of the parties to the dispute shall appoint an arbitrator and the two
arbitrators so appointed shall designate by common agreement the third arbitrator,
who shall be the Chairman of the tribunal. The latter shall not be a national of one of
the parties to the dispute or of any riparian State of the watercourse concerned, nor
have his or her usual place of residence in the territory of one of these parties or such
riparian State, nor have dealt with the case in any other capacity.
2. In disputes between more than two parties, parties in the same interest shall
appoint one arbitrator jointly by agreement,
3. Any vacancy shall be filled in the manner prescribed for the initial appointment.
Article 4
1. If the Chairman of the arbitral tribunal has not been designated within two
months of the appointment of the second arbitrator, the President of the International
Court of Justice shall, at the request of a party, designate the Chairman within a
further two-month period.
2. If one of the parties to the dispute does not appoint an arbitrator within two
months of receipt of the request, the other party may inform the President of the
International Court of Justice, who shall make the designation within a further two-
month period.
Article 5
The arbitral tribunal shall render its decisions in accordance with the provisions of this
Convention and international law.
Article 6
Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine
its own rules of procedure.
95
Article 7
The arbitral tribunal may, at the request of one of the Parties, recommend essential
interim measures of protection,
Article 8
1. The parties to the dispute shall facilitate the work of the arbitral tribunal and, in
particular, using all means at their disposal, shall:
(a) Provide it with all relevant documents, information and facilities;
(b) Enable it, when necessary, to call witnesses or experts and receive their
evidence.
2. The parties and the arbitrators are under an obligation to protect the
confidentiality of any information they receive in confidence during the proceedings of
the arbitral tribunal.
Article 9
Unless the arbitral tribunal determines otherwise because of the particular
circumstances of the case, the costs of the tribunal shall be borne by the parties to
the dispute in equal shares. The tribunal shall keep a record of all its costs, and shall
furnish a final statement thereof to the parties.
Article 10
Any Party that has an interest of a legal nature in the subject matter of the dispute
which may be affected by the decision in the case, may intervene in the proceedings
with the consent of the tribunal.
Article 11
The tribunal may hear and determine counterclaims arising directly out of the subject
matter of the dispute.
Article 12
Decisions both on procedure and substance of the arbitral tribunal shall be taken by a
majority vote of its members.
Article 13
If one of the parties to the dispute does not appear before the arbitral tribunal or fails
to defend its case, the other party may request the tribunal to continue the
proceedings and to make its award. Absence of a party or a failure of a party to
defend its case shall not constitute a bar to the proceedings. Before rendering its final
decision, the arbitral tribunal must satisfy itself that the claim is well founded in fact
and law.
Article 14
1. The tribunal shall render its final decision within five months of the date on which
it is fully constituted unless it finds it necessary to extend the time limit for a period
which should not exceed five more months.
2. The final decision of the arbitral tribunal shall be confined to the subject matter
of the dispute and shall state the reasons on which it is based. It shall contain the
names of the members who have participated and the date of the final decision. Any
96
member of the tribunal may attach a separate or dissenting opinion to the final
decision.
3. The award shall be binding on the parties to the dispute. It shall be without
appeal unless the parties to the dispute have agreed in advance to an appellate
procedure.
4. Any controversy which may arise between the parties to the dispute as regards
the interpretation or manner of Implementation of the final decision may be submitted
by either party for decision to the arbitral tribunal which rendered it.
97
STATEMENTS OF UNDERSTANDING PERTAINING TO CERTAIN ARTICLES OF
THE CONVENTION
During the elaboration of the draft Convention on the Law of the Non-navigational
Uses of International Watercourses, the Chairman of the working Group of the Whole
took note of the following statements of understanding pertaining to the texts of the
draft Convention:
As regards article 1:
(a) The concept of “preservation” referred to in this article and the Convention
includes also the concept of “conservation”;
(b) The present Convention does not apply to the use of living resources that
occur in international watercourses, except to the extent provided for in
part IV and except insofar as other uses affect such resources.
As regards article 2 (c):

The term “watercourse State” is used in this Convention as a term of art. Although
this provision provides that States and regional economic integration organizations
can both fall within this definition, it was recognized that nothing in this paragraph
could be taken to imply that regional economic integration organizations have the
status of States in international law,
(a) The present Convention will serve as a guideline for future watercourse
agreements and, once such agreements are concluded, it will not alter the
rights and obligations provided therein, unless such agreements provide
otherwise;
(b) The term significant is not used in this article or elsewhere in the present
Convention in the sense of “substantial”. What is to be avoided are localized
agreements, or agreements concerning a particular project, programme or
use, which have a significant adverse effect upon third watercourse States.
While such an effect must be capable of being established by objective
evidence and not be trivial in nature, it need not rise to the level of being
substantial.
As regards article 6 (1) (e):

In order to determine whether a particular use is equitable and reasonable, the
benefits as well as the negative consequences of a particular use should be taken into
account.
As regards article 7 (2):

In the event such steps as are required by article 7 (2) do not eliminate the harm,
such steps as are required by article 7 (2) shall then be taken to mitigate the harm.

In determining “vital human needs”, special attention is to be paid to providing
sufficient water to sustain human life, including both drinking water and water
required for production of food in order to prevent starvation.
98
As regards articles 21, 22 and 23:
As reflected in the commentary of the International Law Commission, these articles
impose a due diligence standard on watercourse States,

The specific reference to international organizations is by no means intended to
undermine the importance of cooperation, where appropriate, with competent
international organizations on matters dealt with in other articles and, in particular,
dealt with in the articles in part IV.

This article serves as a reminder that the principles and rules of international law
applicable in international and non-international armed conflict contain important
provisions concerning international watercourses and related works. The principles
and rules of international law that are applicable in a particular case are those that are
binding on the States concerned. Just as article 29 does not alter or amend existing
law, it also does not purport to extend the applicability of any instrument to States
not parties to that instrument.
***
Throughout the elaboration of the draft Convention, reference had been made to the
commentaries to the draft articles prepared by the International Law Commission to
clarify the contents of the articles.
99
Status of the Convention on the Law of the Non-Navigational Uses
of International Watercourses
Adopted by the General Assembly of the United Nations on 21 May

1997
NOT YET IN FORCE: (see article 36).

TEXT: Doc. A/51/869.
STATUS: Parties: 12, Signatories: 8.
By resolution A/RES/51/229 of 21 May 1997, the General Assembly of the United
Nations adopted at its 51st session, the said Convention. In accordance with its article
34, the convention shall be open for signature at the Headquarters of the United
Nations in New York, on 21 May 1997 and will remain open to all States and regional
economic integration organizations for signature until 21 May 2000.
Ratified by: Finland, Hungary, Iraq, Jordan, Lebanon, Namibia, Netherlands, Norway,
Qatar, South Africa, Sweden, and the Syrian Arab Republic.
Signed by: Cote d’Ivoire, Germany, Luxembourg, Paraguay, Portugal, Tunisia,

Venezuela, and Yemen.
100
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TRANSFORMING POTENTIAL CONFLICT INTO COOPERATION

The Role of International Water Law

Sergei Vinogradov, Patricia Wouters, and Patricia Jones

Part One: Introduction 2

Part Two: The Role of International Water Law in Dispute

Part Three: Transforming Conflict into Agreement:

Part Four: Designing and Implementing the Agreement 45

Part Five: Lessons Learned and Checklist of Issues 72

Annex I: Relevant Factors Matrix 76

Annex II: The 1997 UN Watercourses Convention 79

Selected Bibliography 101

2. THE CONCEPTUAL APPROACH: THE “PCCP CYCLE”

Phase I: Legal Context: Phase II: Transforming

Phase IV: Implementation: Phase III: New Agreement:

Figure 1.The PCCP cycle: legal approach

ł the material terms of the agreement (rights and duties)

Figure 2.Transforming conflict into cooperation: legal mechanisms and processes

3. THE PCCP CYCLE IN PRACTICE: THE LAKE LANOUX CASE

3.1. Phase I: The Legal Context

3.2. Phase II: From Conflict to Cooperation

The conflicting interests aroused by the industrial use of international rivers

3.3. Phase III: The New Agreement

3.4. Phase IV: Implementation

4. LESSONS LEARNED AND ISSUES FOR CONSIDERATION

ł the legal framework in place (series of treaties)

1. INTERNATIONAL LAW: WHAT IT IS AND HOW IT WORKS

2. SOURCES OF INTERNATIONAL LAW

4. INTERNATIONAL WATER LAW

5. CUSTOMARY RULES OF INTERNATIONAL WATER LAW

ł The 1969 Treaty on the River Plata (23 April 1969).

8. THE 1997 UN INTERNATIONAL WATERCOURSES

8.2. Substantive Rules

This process of assessment is to be performed, in the first instance at least,

8.3. Procedural Rules

8.4. Institutional Mechanisms

8.5. Dispute Settlement

1997 IWC Convention

1. WATER CONFLICTS: AN OVERVIEW

1.1. Conflict Between Existing Uses

1.2. Conflict Between Existing and New Uses (Planned Measures)

1.3. Conflict Over Future Uses

Figure 4. Water conflicts of use

1.4. Conflict as a Result of Emergency Situations

2. “WATER CONFLICTS” AND “WATER DISPUTES”: LEGAL

3. TRANSFORMING CONFLICT INTO COOPERATION:

3.2. Good Offices and Mediation

3.3. Inquiry and Fact-finding

3.5. Institutional Mechanisms

3.6.2. The Permanent Court of Arbitration

3.7.2. The International Court of Justice

Figure 5. Dispute avoidance mechanisms

The Court has extensive practice in resolving boundary delimitation disputes,

4.1. The River Oder Case

Does the territorial jurisdiction of the International Commission established

4.2. The River Meuse Case

4.3. The Danube Case

1. Whether Hungary was entitled to suspend and abandon works.

Figure 6. Means of peaceful settlement

2. DRAFTING “GOOD” AGREEMENTS

3.2. Treaty Practice