Volume 3-2 Article

"Water Wars in the Near Future? Reconciling Competing Claims for the World's Diminishing Freshwater Resources - The Challenge of the Next Millennium", By GEORGE WILLIAM SHERK, PATRICIA WOUTERS and SAMANTHA ROCHFORD

I. INTRODUCTION

Water continues to be a catalyst for war and peace. One of the most pressing issues of the next millennium will be the management of the limited freshwater resources of the world. Since an important number of these resources are found in transboundary rivers, lakes and aquifers, the importance of international rules that govern allocation of these increasingly diminishing resources cannot be overemphasized.

The natural availability of water has decreased as a result of many different factors, and suddenly a number of regions are experiencing water scarcity, many for the first time. The problem can now be seen to be making itself felt at the level of international politics, as water scarcity leads to disputes between states, often resulting in violent conflict. As a result, water has taken on a strategic role for many states. Since the likelihood of discovering new sources of water for exploitation is slim, the alternative and perhaps the only way ahead must be the formulation of an international legal framework governing the use and allocation of scarce water resources, allowing for the equitable and efficient utilisation of shared watercourses.

This paper will address the reasons for the present scarcity of water, and highlight why water plays such an important role in international relations, looking at past and potential disputes between states over water. It will also examine what legal framework, if any, exists to govern the uses of international watercourses, and the various attempts by the international community to arrive at a consensus over the factors to be taken into account when a conflict over water allocation occurs between states. The focus will be on the new United Nations framework convention on international watercourses adopted May 1997. The paper concludes that this instrument provides an important starting point for the exercise of preventive diplomacy in the area of transboundary water management.

2.USES OF WATER

Although 97% of the world's surface is covered by water, 94% of this water is contained in the world's oceans, and therefore is of little use for drinking, agricultural or industrial purposes. Of the remaining 3% of fresh water, over 2% is locked away in the polar ice caps, glaciers or deep underground aquifers, and is therefore inaccessible. It is therefore estimated that only 0.36% of the worlds water contained in rivers, lakes and swamps is sufficiently accessible to be considered as a renewable fresh water resource.

The distribution of water around the world is also very uneven. World Bank statistics identify approximately 20 countries that have been declared chronically water scarce. It is interesting to note that China, with over 25% of the world's population, can claim only 8% of its fresh water resources. Alternatively, many developed countries in the world have an abundance of freshwater supplies compared to their population. Hence the world is not faced with a global water shortage per se, but instead a series of many chronic regional and local water shortages.

What is causing the dearth in the availability of water? Before addressing this question, the uses of water in the world must be examined.

2.1 Municipal and industrial demand

Industrial activity cannot be developed, and existing operations cannot be maintained, without access to large amounts of water. Around 8% of the world's fresh water supplies are used for health and sanitation purposes, and around 38% for industrial purposes. Industrial uses include boiling, cleaning, cooling, processing, air conditioning, transportation and energy production, amongst others. The advent of stringent environmental controls in many developed countries has seen a trend towards the removal of heavy industry to developing countries to avoid harsh penalties for pollution. This added pressure, in countries whose water resources are often already stretched to the limit, results in conflicting priorities, and, unfortunately, it is frequently the case that governments tend to favour industrialisation over water quality.

Additionally, a large increase in the numbers of people migrating to the cities has been witnessed in the last half century. In 1950, 29.2% of the world's population lived in cities. By 1985, the figure had leapt to over 41%. By the year 2000, it is estimated that over half of the world's population will be living in cities. Obviously this will further strain the capability of cities to provide adequate water supplies, sanitation and waste disposal services to their inhabitants. An inability to provide such services, however, could result in epidemics of water borne diseases such as cholera, hepatitis A, and dysentery.

2.2 Food security (irrigation)

Agriculture consumes about 70% of the available supply of fresh water. Over the next 30 years, an estimated 80% of the additional food supplies required to feed the world will depend upon irrigation, using, to a large extent, transboundary water resources. Water security is therefore becoming inextricably linked to national and regional food security, and it is only a matter of time before countries look to national food self-sufficiency. Often economically inefficient, such policies also conflict with demands for transboundary water resources between riparians, ultimately resulting in disputes between states. Egypt is a prime example of a state depending fully on an international watercourse (the River Nile) for its water and food security. This has, in the past, led to disputes between Egypt and upstream riparian States. At present, Ethiopia and Egypt cannot agree over their respective uses of the Blue Nile. Only recently has Ethiopia, source of nearly 85% of the headwaters of the Nile, been capable of deloping the Nihilic waters. Egypt, however, has already appropriated more than 110% of the Nile's capacity and argues that its historic rights to those waters cannot be adversely affected. How will this conflict of uses be resolved?

2.3 Economic development

Economic development accounts for a major use of water resources in the world. Large scale irrigation schemes such as the GAP project in Turkey, or dam building, such as the Three Gorges Dam in China, are undertaken in an attempt to strengthen underdeveloped countries economies by providing jobs, irrigation for crops, hydroelectricity, and, more importantly, access to safe water supplies for the population.

A strategic component manifests itself in the area of economic development, since the use of water has often been used to further the aims of government. Democratic governments often pursue short term goals in relation to water policy with a view to securing more votes, or placating the demands of pressure groups. Non-democratic governments are also perpetrators of such short-term policy making. Often such governments will undertake major economic developments, such as irrigation schemes or dam building, in order to strengthen control over the masses and win favour with leaders. Such schemes are undertaken without a second thought to adverse effects on the ecological balance. The Aral Sea is a prime example of how countries' governments ignored the environmental effects of the action of dam building, and are now facing one of the world's greatest ecological disasters.

Additionally, water scarcity may result in a threat to both national and regional security, contributing to economic failure in weaker developing countries and regions who have limited capacity to cope.

2.4 Environmental and natural resource protection purposes

Since approximately 98% of the world's fresh water resources are used for the purposes mentioned above, this leaves very little for the replenishing of fresh water ecosystems. This results in significant impacts on the environment and ecosystems.

Although the need for co-operation in sharing water resources for human purposes is recognised, the challenge of developing strategies for sharing water with nature is less of a priority for most states. Despite the lack of emphasis placed on the role of water in environmental protection, it remains an important concern, since vital ecological functions are being eroded, leading to habitat destruction and ultimately, albeit indirectly, affecting humans. It is difficult to support environmental rights to water use, however, when human health is being injured directly because of a lack of proper sanitation and water use development. In this context, optimal water use, considering all relevant factors must be considered the goal.

3.SCARCITY OF WATER

The necessity to regulate the utilisation of international waters has come to the fore in recent years, and especially now since anomalies in the natural availability of water are seen to be affecting a number of different regions. Water scarcity has become a serious issue, and one which must be addressed soon if a disaster is to be avoided. Why is water so scarce today, as compared with a few hundred years ago? Two of the main reasons for water scarcity will now be examined briefly - population growth and supply limitations.

3.1 Population growth

The statistics on population growth are quite alarming. By 1950 the world's population was around 2.5 billion. In the span of 40 years, this figure had more than doubled. It is estimated that by the year 2000, the population will reach around 6 billion, and by 2100 around 12 billion. In stark contrast to this ballooning growth of the world's population, the earth's supply of freshwater remains relatively constant at "an unchanging 14,000 trillion cubic meters a year". It is therefore not surprising that the availability of water has become a pressing national and international issue. Added to this, population growth is occurring mostly in a few particular areas (90% of all future population increases will occur in the developing world ), which places a further strain on already limited supplies of clean water and adequate sanitation. In the USA, per capita consumption is around 1700m3 per person per year. In Africa, the figure is 250m3. As a rule of thumb, 1000m3 of water per person per year is needed for a minimum adequate quality of life. In 1990, 18 countries could not meet this requirement. It is estimated that by the year 2025, at least 30 countries will be unable to supply these minimal requirements.

Increases in population lead to a greater food consumption, which in turn leads to the need for more water for irrigation purposes. As noted previously, agriculture consumes about 70% of the available supply of fresh water. Improved irrigation practices could help stem the need for more water. The problem, however, is aggravated by the cultivation of new varieties of crops which, although giving a high yield, at the same time use significantly more water then the traditional varieties.

3.2 Supply limitations

Exacerbating the problem of water scarcity is a decline in water quality. In 1990, it was estimated that 1.2 billion people lacked a safe supply of water, and that 1.7 billion had inadequate sanitation. Contamination of fresh water resources is a result of many factors, such as industrial discharges and saltwater intrusion, therefore rendering the water unfit for human consumption or for irrigation.

Another factor to be taken into account when assessing the scarcity of water are the changes in meteorological conditions which have occurred over the past decades. The increase in global warming could lead to an alteration in rainfall patterns, leaving some areas with even greater water shortages than those experienced before. Human activities have also had a significant effect on the global hydrological cycle. This in turn leads to many direct and indirect consequences which have a serious impact on the environment and the ecosystems on which humans depend.

Inefficient use of water may also partly be to blame for the growing scarcity of water resources. In urban areas, between 30% and 50% of water is lost due to leakages in water supply systems. In some countries, such as Jordan and Malta, the figure is as much as 60%. Since it is estimated that by the year 2000 half of the world's population will be living in urban areas, pipe leakages will become more of a pressing problem, as cities will be forced to look further afield for water supplies. In addition to the problem of providing water supplies to the inhabitants, cities will also be faced with the difficulty of disposing of the large quantities of waste water produced, which ultimately leads back to the potentiality of water pollution.

4.COMPETING CLAIMS OF SOVEREIGNTY FOR FINITE SOURCES OF TRANSBOUNDARY FRESHWATER

World-wide, there are more than 300 major river basins, covering about 50% of the total land area. Many of these river basins straddle country borders, even more so today due to the break up of the Soviet Union and eastern Europe. Examples of river basins straddling more than one state include the Nile river, with nine countries sharing the basin, and the Danube river, shared by seventeen countries.

The potential for water conflicts over transboundary waters is evident, especially in times of scarcity. Is the upstream State entitled to use all of the water that originates on its territory? Are the prior developments of downstream States protected against subsequent uses of their upstream neighbours? How can conflicts of uses be resolved? Before analysing the various international frameworks which govern the allocation of water in the event of disputes between states, a few examples of past disputes over water will be examined, along with potential situations which may, in the future, lead to conflict over shared water resources.

5.PAST WATER DISPUTES

Disputes over water are not a recent phenomenon. Conflict over the resource can be seen as far back as 3100 BC over the Euphrates river. Neither do disputes occur in only one area. As the following examples show, there is a wide spread in the geographical distribution of the conflicts, each continent having its share. There is also a diversity of issues and difficulties in the management of the watercourses in each scenario.

5.1 Colorado River (United States / Mexico).

The dispute occurred between the United States and Mexico over the equitable use of the waters of the Rio Grande and the Colorado River. In the course of this dispute, the theory of absolute territorial sovereignty, (known as the Harmon Doctrine) was put forward by the United States as the principle by which the case should be decided. This proposition was rejected, and instead the equitable utilisation of the waters was determined to be the overriding component by which the dispute was to be settled. In 1944, a treaty was signed between the United States and Mexico, which provided for the allocation of waters of the two rivers and the construction of works. This was based on the principle of equitable apportionment, which allowed for the two countries to co-operate as good neighbours in developing the vital water resources of the rivers in which each has an equitable interest.The United States and Canada resolved a similar and complex dispute regarding the Columbia River and other international watercourses crossing their borders.

5.2 Indus River (India / Pakistan).

The Indus river begins in Tibet, with India and Pakistan being the downstream riparians. In the 1940's, the partition of India and Pakistan by the British disrupted an irrigation system which had been in place for over 5000 years, leading to conflict between India and Pakistan when India withheld water flows to canals in Pakistan. It was only through the intervention of the World Bank that the disputing parties could reach agreement. The Indus Waters Treaty was signed in 1960 between the two states, the principle of equitable apportionment being a main component of the treaty. Despite some problems with the implementation of this agreement, neither Party has ever invoked the dispute settlement provisions, preferring instead to resolve issues through diplomatic channels.

5.3 Meuse and Scheldt Rivers (Belgium / France / Netherlands)

The rivers Meuse and Scheldt play important roles in Dutch water management, since the Meuse river especially is relied upon as the source of drinking and industrial water for The Hague and Rotterdam. Since 1840 there had been arguments between Belgium and the Netherlands over both water quality and quantity issues. Recent agreements on the rivers Meuse and Scheldt between The Netherlands, France and the Belgian regions of Flanders, Brussels and Wallonie demonstrate how cooperation can be achieved on longstanding and complex transboundary water issues.Very relevant to this discussion is the integrated approach adopted by most European countries in the management of their international freshwater. This arises from longstanding historical reasons and is enhanced by the creation of the European Union. The most recent innovation at integrated water management in Europe is the proposed Framework Directive on Water.

5.4 Mekong River (Cambodia / Laos / Thailand / Vietnam).

A new agreement replacing previous undertakings and commitments was concluded in 1995 between the four Lower Mekong states of Cambodia, Laos, Thailand and Vietnam. This agreement is mostly concerned with the maintenance of adequate volumes of water of suitable quality flowing at all times in the Mekong river and in its tributaries. The principle of reasonable and equitable utilisation is given priority in this accord, although the Parties also agreed to mitigate the harmful effects of water use. The agreement also creates a Mekong River Commission which is authorised to administer the provisions laid down in the Agreement.However, the real shortcoming of the Mekong Treaty is that is does not include Myanmar (Burma) and China, both upstream States on the Mekong. China plans to proceed with a series of ten dams on the upper stretches of the Mekong and this will clearly adversely affect the supply to downstream States. Since China has its own financing for the dams, the restrictions often imposed by international funding agencies, such as the World Bank, will not preclude China's unilateral move to development. What rules of international law apply to such unilateral action which threatens to adversely affect downstream users?

5.5 Jordan River (Israel / Jordan).

The ongoing conflict over the Jordan River basin is extremely complex, made more so due to the political relations between the riparian states, and cannot be covered in this essay. Briefly, however, relative to Jordan, Israel is the upstream state for most of the Jordan river basin, leaving Israel with significant power over the control of the waters, and Jordan in a vulnerable position. For many years, Israel had been diverting water from saline springs around Lake Tiberias into the Lower Jordan River. Since the Israel / Jordan Peace Agreement was signed in 1994, however, Israel is obligated to build a desalinisation plant in Israel, thus providing Jordan with the minimal desalinised water needs for domestic use. The water-related part of the Treaty is important, at least on paper. Jordan is in a better position, although the status of Israel more or less remains the same. Of much greater significance, however, is the fact that the document opens the door to enhanced co-operation in water matters between t two countries. This may yet prove to be important, since it will soon become clear that even with the apportionment of water under the Treaty of Peace, there is still precious little water to meet the needs of the people in the Jordan river basin. It will be then that co-operation will be needed the most. Israel and Jordan continue to have conflicts over the details of implementation of the Treaty. Israel continues, however, to move slowly on the more critical dispute over water with the Palestinians.

6. WATER WARS IN THE NEAR FUTURE?

"Ready to fight to the last drop". This recent news headline is echoed in the following statement issued at the UN Conference on Managing Water Resources for Large Cities and Towns convened in Bejing in March 1996: "Increasing concern [is] being voiced that the next century may be scarred by wars over water, even as this century has been devastated by wars over oil". This view is shared by many water experts today. Are they correct? Are "water wars" an imminent threat?

A report by the United Nations claims that some 3,000 of the world's interregional and transnational river basins are the scenes of current conflicts. Often, the water scarcity problem is complicated by other factors such as political, ethnic and religious instability. Currently, potential hot-spots can be seen to exist, especially in the Middle East, where the problems of water scarcity are exacerbated by ongoing conflict, war, climate and political instability.

Four countries share the river basin of the Tigris-Euphrates river. Turkey is in the dominant position, having control of the headwaters of the river basin, and can therefore impose its rights as upstream riparian on the downstream riparians of Iraq and Syria. Both states are thus held hostage to the political will of Turkey, and as a result of their relative weak military position, are at the mercy of Turkey's unilateral acts of water utilisation. Various irrigation projects carried out by Turkey in the past have reduced the water quality downstream. Today an even bigger threat faces the downstream users.

Turkey has begun work on a large scale water management scheme, the Southeast Anatolian development programme (GAP), at a cost of over $32 billion. The project consists of 495 separate projects , including 22 dams on the Tigris and Euphrates rivers, 19 power stations and more than 1000 km of irrigation canals. Hailed as a success by Turkish President Suleyman Demirel, the GAP project "stands as a successful example of an integrated development project in an underdeveloped region". The benefits for Turkey are manifold - the production of 22% of Turkeys' hydroelectric power, and the irrigation of over 8.5 million hectares of land. The effects on the downstream riparian states of Iraq and Syria, however, are a source of concern. It is feared that once Turkey begins to fill the dams, downstream flow will be significantly reduced, with disastrous effects on downstream agriculture. In answer to Syria and Iraq's calls in 1992 for a greater minimum flow through their states, Turkish President Suleyman Demirel's rett was "We do not say we should share their oil resources. They cannot say they should share our water resources". Attitudes such as this do not foster much hope of peaceful water sharing agreements.

As well as the problem of the reduction in downstream flow, there are also worries that the small quantities of water actually reaching Iraq and Syria will be polluted with chemicals and saturated with saline from the irrigation schemes in Turkey, rendering it useless for human consumption. Since Iraq and Syria lack any military, political or economic leverage over Turkey, the States appear powerless to prevent the scheme from going ahead. As a form of retaliation, however, the states have supported minority Kurdish rebels operating against the Turks, which in turn has prompted Turkey to threaten to cut off the water flowing to Iraq and Syria. It is precisely actions such as these which may eventually lead to full-scale armed conflict.

Egypt is the farthest downstream riparian state on the River Nile, there being eight countries upstream. Egypt depends on the river for 97% of its water supplies, yet contributes virtually no water to the Nile. In the 1950's, disputes between Egypt and Sudan over water allocation led to the bilateral 1959 Nile Waters Agreement, which allocated water quantities to each state. Notably, this treaty is binding only on the two States party to it: Egypt and Sudan.

Until now, the upstream users of the Nile have been unable to mount any significant development schemes to draw upon the Nile, despite having severe food security problems which might be solved by water resources development. Today, however, Ethiopia has gained enough political stability and capacity to plan dam building on Nile tributaries under its control. It believes that such water resource development is the country's main option, providing food security and socio-economic development in the region through the use of irrigation and hydro-electric power.

Such development is not without its effects on the downstream riparian states, however, which in this case includes Egypt. To date, Egypt has adopted an aggressive stance in relation to upstream development, which has in turn led to potential sponsors of such development programmes being discouraged from providing assistance. The lack of funding for such projects, however, may soon no longer be the preventative factor in Ethiopia's plans to press ahead with the schemes, and Egypt may find itself facing such a prospect in the very near future. The strength of Egypt's resistance to upstream development is enormous, however, and Egypt has made it quite clear that it is perfectly willing to go to war to preserve its share of the waters of the Nile.The countries have exchanged diplomatic notes on the matter, and it is hoped that some agreement might be reached.

The case of the Ganges River is an example of a past dispute between two countries which was not settled decisively, and which now has the potential to flare up into renewed conflict, despite a new agreement between the parties. India is situated upstream to Bangladesh on the Ganges, which then continues to flow into the Bay of Bengal. In 1975, India diverted water from the Ganges through the Farakka Barrage, away from Bangladesh, who consequently took the dispute to the United Nations. This led to the signing of The Agreement on Sharing of the Ganges Waters in 1977, which guaranteed Bangladesh a minimum amount of water during periods of extremely low flow.

The agreement expired in 1982, after which an informal agreement was reached between the two countries. This agreement, although still regarded by Bangladesh as governing the flows of water through the country, does not provide any guarantee for Bangladesh. Consequently, the diversion of the Ganges through the Farakka Barrage continued to deprive Bangladesh of adequate water, resulting , in 1993, in the lowest ever dry season recorded in Bangladesh. This situation has been mitigated somewhat by the new agreement signed 12 December 1996 between India and Bangladesh. This agreement sets forth specified amounts of water to be released to Bangladesh during different parts of the year, with a view to ensuring sufficient flow during the dry season. In fact, due to an unusually dry season, India has already breached its obligations under the new Ganges treaty, with the result that Bangladesh has suffered from diminished water supplies.

Another complicating factor is the absence of Nepal from the Indian-Bangladeshi agreement. India prefers to deal with the riparians of the Ganges on a bilateral basis. The quantity and quality of water reaching Bangladesh, however, is once again likely to alter dramatically when the recent agreement reached between Nepal and India comes into force. This agreement provides for irrigation schemes, flood control and hydro-electric dams in the upstream tributaries to the Ganges, which will have an adverse effect on the amount of water flowing through Bangladesh, renewing the potential for conflict between India and Bangladesh.

7. LEGAL RESPONSE TO THE PROBLEM

As the potential for disputes over transboundary watercourses increase, there has never been a greater need for international legal guidelines regarding the rights and obligations of riparians in the use of their freshwater resources. Bilateral and regional agreements go some way towards addressing the issues on a small scale, but do not sufficiently approach the wider problem.

Are there rules of international law that govern the allocation and use of international watercourses? Theories of absolute territorial sovereignty, absolute territorial integrity and limited territorial sovereignty have been advanced by States in their claims over transboundary waters. Rules of customary international law applying specifically to this area have evolved over the years. What are the rights and duties of riparian states in relation to their utilisation of transboundary watercourses, how can these rights be enforced, and can they be regulated?

7.1 The 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses

In 1970, the General Assembly of the United Nations recommended that the International Law Commission of the United Nations (ILC) "take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification". After close to a quarter century of study and deliberation, the ILC adopted a set of draft articles on the non-navigational uses of international watercourses. These were referred to the UN General Assembly to be used as a starting point for the drafting of a multilateral water convention. However, it would be the decision of States whether any instrument would result from the deliberations.

In 1996, the UN's Sixth Committee, convened as the Working Group of the Whole, commenced meetings on the Watercourses Draft Articles. The first two weeks of meetings revealed the extent of controversy that existed on key issues. At the end of this first session (November 1996), it was questionable whether States could agree on a text and some believed that agreement would never be reached. At the second two-week session (March/April 1997), following much debate, many proposals and inevitable compromise, the Working Group of the Whole took the unusual step of voting on a revised draft text. By a vote of 42 States for, 3 against and 18 abstentions, a final text was adopted by the Working Group of the Whole. Following is a summary of the voting record on that instrument.

TABLE 1

Voting Record / Working Group of the Whole / Text as a Whole

FOR (42)

AGAINST (3)

ABSTAINED (18)

Algeria, Austria, Bangladesh, Belgium, Brazil, Cambodia, Canada, Chile, Czech Republic, Denmark, Ethiopia, Finland, Germany, Greece, Holy See, Hungary, Iran, Italy, Jordan, Liechtenstein, Macedonia, Malawi, Malaysia, Mexico, Mozambique, Namibia, Netherlands, Nigeria, Norway, Portugal, Romania, South Africa, Sudan, Switzerland, Syria, Thailand, Tunisia, UK, USA, Venezuela, Viet Nam, Zimbabwe

China, France, Turkey

Argentina, Bolivia, Bulgaria, Colombia, Ecuador, Egypt, India, Israel, Japan, Lebanon, Lesotho, Mali, Pakistan, Russia, Rwanda, Slovakia, Spain, Tanzania

(130 States did not vote)

From the above summary, several observations can be drawn:

The issues central to the controversy in the Working Group arose in three key areas: (i) to what extent did States have to comply with the provisions of the Convention in existing and future watercourses agreements; (ii) what was to be the substantive content and relationship between the principles of equitable utilization and no significant harm (Articles 5 and 7); (iii) to what extent were States to be bound by dispute settlement mechanisms? The compromise reached in each of these areas reveals a central ground acceptable to the majority of States.

On the first issue, the final text affords States substantial flexibility with respect existing and future watercourse agreements. States are free to "adjust the provisions" of the Convention to the particular characteristics of the watercourse involved, so long as the rights of other watercourse States are not affected by the Convention. The revised text of Article 3(1), Article 3(2), and Article 3(3) was endorsed by 36 States, rejected by 3 States, with 21 States abstaining from voting in the Working Group of the Whole. With respect to dispute settlement, once again States are afforded ample latitude, although the revised text is stronger than its predecessor and calls for compulsory fact-finding which, upon scrutiny, reveals a procedure closer to compulsory conciliation procedure.

On the crucial issue most relevant to this paper -- the substantive content and inter-relationship between Articles 5 and 7 -- the Working Group made substantial revisions to the formulation of the no significant harm rule contained in the ILC's Draft Article 7. The result makes the principle of equitable utilization the governing rule of the Convention. The no significant harm principle, significantly revised from its former versions contained in the 1991 and 1994 ILC Draft Articles, can be read as subsidiary to the substantive rule contained in Article 5. Article 7(2) provides: "Where significant harm nevertheless is caused to another watercourse State, the States whose use causes the 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." (emphasis added) These provisions replace the 1994 ILC Draft Article 7 which read: "States shall exercise due diligence to utilize an international watercourse in such a way as not to cause significant harm to other watercourse States." (emphasis added) However, the final texts of Articles 5, 6 and 7 were not accepted by all States. Following is a record of the voting on the package of these three provisions.

TABLE 2

Voting Record / Working Group of the Whole / Revised Articles 5 -7

FOR (38)

AGAINST (4)

ABSTAINED (22)

Algeria, Austria, Bangladesh, Belgium, Brazil, Canada, Chile, Denmark, Finland, Germany, Holy See, Hungary, Iran, Israel, Italy, Jordan, Korea, Liechtenstein, Malawi, Malaysia, Mexico, Mozambique, Myanmar, Namibia, Netherlands, Paraguay, Portugal, Romania, Russia, Switzerland, Syria, Thailand, Tunisia, UK, USA, Uruguay, Venezuela, Viet Nam

China, France, Tanzania, Turkey

Argentina, Bolivia, Bulgaria, Colombia, Czech Republic, Ecuador, Egypt, Ethiopia, Greece, India, Japan, Lebanon, Macedonia, Mali, Mongolia, Pakistan, Rwanda, Slovakia, South Africa, Spain, Sudan, Zimbabwe

(129 States did not vote)

The following observations can be drawn from the above summary of voting:

The fact that the vote on the substantive rules contained in Articles 5 and 7 was so closely divided is significant in itself. From such a result it can be deduced that both upstream and downstream States find strengths and weaknesses in the final formulation of the Articles. This could attest to the relative fairness of the compromise finally reached regarding the substantive rules: It favoured neither upstream nor downstream States. Certainly, a primary rule of allocation based on "equitableness and reasonableness" should promote such an end.

The practical application of the substantive rules of the Convention is achieved under Article 6 which lists the factors which must be taken into account when deciding what an equitable and reasonable use of an international watercourse actually is. These include geographic, hydrographic, climatic, ecological and other natural factors, the social and economic needs of the watercourse states concerned, the population dependant on the watercourse, the effects of the use of the watercourse by one state on other watercourse states, existing and potential uses of the watercourse, conservation, protection, development and economy of use of the resources of the watercourse, and the availability of alternatives to a planned or existing use.

The final text adopted by the Working Group of the Whole was appended to a draft resolution put forward before the UN General Assembly by thirty-three States on 21 May 1997. On 23 May 1997 the UN General Assembly adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses. Containing 37 articles with a 14-article Annex, the instrument was adopted by a vote of 104 States in favour, 3 against and 26 abstentions. The text was opened for signature on that date until 20 May 2000. Following is a record of the voting in the UN General Assembly on the adopted Resolution.

TABLE 3

Voting Record / UN General Assembly / 1997 Convention

FOR (104)

AGAINST (3)

ABSTAINED (27)

Albania, Algeria, Angola, Antigua & Barbuda, Armenia, Australia, Austria, Bahrain, Bangladesh, Belarus, Belgium, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Cambodia, Cameroon, Canada, Chile, Costa Rica, Cote d'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Estonia, Federated States of Micronesia, Finland, Gabon, Georgia, Germany, Greece, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakstan, Kenya, Kuwait, Laos, Latvia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Malta, Marshall Islands, Mauritius, Mexico, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Norway, Oman, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Samoa, San Marino, Saudi Arabia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Sudan, Suriname, Sweden, Syria, Thailand, Trinidad & Tobago, Tunisia, Ukraine, United Arab Emirates, UK, USA, Uruguay, Venezuel Viet Nam, Yemen, Zambia

Burundi, China, Turkey

Andorra, Argentina, Azerbaijan, Bolivia, Bulgaria, Colombia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, Uzbekistan

(33 States were absent)

The adoption of this framework convention, including the process with which this was achieved raises important issues relevant to the future management of international watercourses. The following observations can be made:

States have agreed that the 1997 UN Watercourses Convention provides important substantive and procedural rules to follow in their dealings over international watercourses. The overall aim of the instrument is to provide realistic means to prevent and/or resolve disputes over water. Despite controversy on some key issues, States have supported the adoption of this body of rules at two critical stages in the evolution of the final Convention: first, by the majority of States voting in the Working Group of the Whole, and secondly, by the majority of States voting at the UN General Assembly. Two important tests have yet to come: (i) will 35 States ratify the instrument so that it will come into force? (ii) will the Convention receive universal endorsement of the international community of States? Only the future will tell. However, regardless of whether these latter two tests are passed, it remains certain that States will refer to the 1997 UN Watercourses Convention in their dealings involving international wercourses.

7.2 The Importance and Relevance of the 1997 UN Watercourses Convention

The potential for international conflict over water is evident from the earlier discussion in this paper. The fact that the United Nations has now come forward with a framework convention offers States important rules and guidelines to prevent and resolve conflicts over water. The 1997 UN Watercourses Convention may not be perfect, but it is consistent with State practice and earlier efforts at codification of the rules relating to watercourse law.

One of the most notable contributions to the development of international water resources law has been made by the International Law Association (ILA). Over the past 40 years, the ILA has passed a number of resolutions, dealing with aspects concerning the substantive and procedural rules that apply to international drainage basins, the flow of water, flood control, marine pollution and groundwater. The most important product of the ILA's work, the 1966 Helsinki Rules on the Uses of the Waters of International Rivers (hereafter referred to as the Helsinki Rules), have been accepted by many countries involved with the integrated development of international river basins in Asia, Africa and Latin America.

The International Law Association, in its Helsinki Rules and all subsequent work on international watercourse law, has adopted the principle of equitable and reasonable use as the governing principle of water law. This principle is contained in Article IV of the Helsinki Rules, which provides that "each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of an international drainage basin." (emphasis added)

As with the approach adopted in the 1997 UN Watercourses Convention, under the ILA's approach, "[w]hat is a reasonable and equitable share … is to be determined in the light of all the relevant factors in each particular case." Unlike the UN's approach, however, the ILA includes harm as one of the factors to be considered in the overall assessment.

This distinction is important since, under the ILA's approach, it is clear that a use which causes significant harm could be justified under the principle of equitable utilization. The same is not quite so evident in the approach adopted in the 1997 UN Watercourses Convention, although States could argue that read together, Articles 5-7 mean this. In practice, adopting equitable use, as compared with no significant harm, as the governing rule can yield quite different results. The no significant harm rule acts as a veto on future development and tends to protect the status quo (i.e., the prior appropriations of the State first to develop). This can result in an inequity to the often less developed State.

A case in point would be Ethiopia's situation on the Blue Nile where Egypt could effectively preclude the development of new uses by Ethiopia on the grounds that these would cause significant harm to Egypt's existing uses. The principle of equitable use would require that all relevant factors be considered in the assessment of a reasonable and equitable use in each particular case. Thus, Ethiopia could be entitled to cause even significant harm to Egypt's existing uses, should that result in the most equitable use of the waters of the Nile. Equally, Egypt could claim protection for its existing uses under the same principle. A compromise would have to be worked out. Clearly, competing economic interests connected to the development of international watercourses could best be reconciled under an approach that promoted a balancing of all relevant factors, and not by a rule that protects one State's pre-existing uses at all costs.

The best way to arrive at a compromise in a conflict of uses over freshwater is by agreement. States appear willing to do this. An important case in point is the regional convention adopted in Helsinki on the Protection and Use of Transboundary Watercourses and International Lakes 1992. This agreement was concluded under the auspices of the UN Economic Commission for Europe (UN/ECE), a unique pan-European forum for co-operation and sustainable development, focusing primarily on the environment, transport, trade, statistics and energy. The Helsinki Convention, adopted by 20 European countries and the European Union, deals with the prevention, control and reduction of long-range transboundary impacts relating to international watercourses and lakes, with a large emphasis on environmental protection and conservation. Amongst its aims are the protection and ecologically sound and rational management of transboundary waters, reasonable and equitable use of transboundary waters, and the conservation and restoratn of ecosystems.

In July 1997, the first meeting of the parties to the Helsinki Convention was held, and the Helsinki Declaration was adopted. The main statements of the Declaration included that there should be close co-operation at all levels - regional, sub-regional, national, provincial and local - and that all ECE member countries should be encouraged to ratify the Helsinki Convention , along with any conventions or agreements under its umbrella. The first meeting also adopted a Work Plan 1997-2000, which sets forth a series of programme areas such as the setting up of joint bodies, giving assistance to countries with economies in transition, setting up a system of integrated management of water and related ecosystems, control of land based pollution, and the prevention, control and reduction of water related diseases.

The Helsinki Convention demonstrates how an entire range of problems related to transboundary water development and management can be addressed in a comprehensive and cooperative fashion. One thing is clear, however, the States party to that agreement have agreed to stringent guidelines and obligations. This is not something that can be assumed to be imposed as obligations on unwilling third parties. It is in this light that the strength of the flexibility of the 1997 UN Watercourses Convention can best be appreciated. Where States cannot agree on detailed measures for managing their international watercourses, the substantive rules of the UN Convention provide solid rules for determining the rights and duties of States regarding the fundamental question of "who gets what". The purposes of the 1997 UN Watercourses Convention and the 1992 Helsinki Convention are very different. While the former seeks to provide rules to determine the legitimacy of new and increased uses, generally, the latter is a more specic in that it is directed at limiting adverse transboundary impact. These goals are very different and each instrument must be considered in its particular context.

The importance of the UN Convention has recently been expressly recognized by the International Court of Justice (ICJ) in the only decision involving an international watercourses rendered by the Court over the last 60 years. Hungary and Slovakia had a dispute over the use of the Danube. Although the case revolved around interpretation of a treaty, the Court referred to general principles of international law and stated: "Modern development of international law has strengthened the principle expressed in the River Oder case that 'the community of interest' in a navigable river becomes the basis of a common legal interest for non-navigational uses of international watercourses."

The Court refers to Hungary's right to "an equitable and reasonable share of the natural resources of the Danube" and cites the new UN Watercourses Convention. This is important as it highlights the Court's recognition of the principle of equitable and reasonable utilization and the evolution of a body of rules applicable to international watercourses. In its decision, the ICJ determined that the 1977 Treaty between the Parties remained in force and recommended that they negotiate on how that agreement might be implemented. Hungary and Slovakia continue to attempt to reach agreement on this matter.

8. CONCLUSIONS

Water will be one of the most important natural resources of the future. How it is managed will affect not only the lives and well-being of billions of people, but determine national economic policy and strategy in many regions of the world. Insufficient access to clean and useable freshwater already impacts national prosperity adversely in most parts of the world. Where freshwater resources transcend national boundaries, cooperative and integrated management is a major challenge, subject to many obstacles. The potential for international conflict over water is great. One of the essential mechanisms necessary to prevent "water wars" is the establishment of clear "rules of the game". The 1997 UN Watercourses Convention goes a long way in achieving this purpose. The governing principle of reasonable and equitable utilization levels the playing field and offers every State an opportunity to have its situation put forward. All relevant factors must be weighed in the assessment of an equitable use. Clearly, the eferred resolution is one arrived at by agreement. Where each side knows that its concerns must be considered in the context of the overall picture, compromises will be easier to reach. The recent spate of international treaties relating to transboundary waters endorses the approach adopted in the 1997 UN Watercourses Convention. For those watercourse States that voted against the Convention, or that are not party to watercourse agreements, the weight of the growing consensus of the international community of States will carry persuasive force. It is now left to the international community of States to endorse the rules outlined in the 1997 UN Watercourses Convention. This would be consistent with a significant State practice already in existence and contribute to the peaceful management of international watercourses around the world.