Presentations by:
 
Laurence Boisson de Chazournes Sharif El-Musa Joseph Sills

1
The UN Convention on International Watercourses:
Prospects for an Unfinished Agenda for Co-Management

by
Laurence Boisson de Chazournes*

    International law plays an important role in the management of international watercourses. While the rule of law does not in and of itself provide solutions for water utilization, conservation or protection issues, it contributes to the means of finding and reaching solutions to international water problems as well as of avoiding and settling disputes.  Until the adoption by the General Assembly in May 1997 of the UN Convention on the Law of Non-Navigational Uses of International Watercourses (hereinafter the UN Convention)  and its opening for signature and ratification by UN member States, the international community did not have at its disposal a set of written rules and principles endorsed by a political arena.  Up until this time, the Helsinki Rules on the Uses of the Waters of International Rivers, which were adopted in 1966 by the International Law Association were the only set of written rules to be referred to.  They, however, had not been endorsed by an inter-state political body but by a non-governmental body and thus lacked the official standing of the UN Convention..  In addition, there was a debate as whether they constituted customary law.  The UN Convention brought some light in this context allowing for some clarification.

The codification effort initiated in 1970 by the UN International Law Commission B a subsidiary body of the UN General Assembly B took almost three decades.  Although it is the result of political compromises among groups of states with different interests, it helped clarify and codify various rules and principles of the regime applicable to international watercourses.  The legal and policy framework as it currently stands in the UN Convention, however, is not precise enough, nor sufficiently streamlined and overarching for dealing in a comprehensive and effective manner with co-management issues.  Accordingly, there is a need to develop further the policy and legal regime applicable to watercourses.

I. The Adoption of the UN Convention:   A Step Forward. The Adoption of the UN Convention:   A Step Forward

The UN Convention constitutes a step forward in the development of international water law as it provides the basic elements of the general architecture for managing international watercourses.  The elements of such architecture have been negotiated as to have universal applicability; uncertainties and minimal common denominators are the price to pay for such approach.  The UN Convention is not an exception in this respect. Many conventions covering international environmental law or human rights law issues present similar features.  One of the virtues of such instruments - also referred to as framework conventions - is to lay down the constitutive foundations for a legal regime.  The regime then is further elaborated through additional instruments, such as treaties, protocols, amendments and guidelines.

It should also be noted that when the UN Convention enters into force, the forthcoming bilateral and regional watercourse agreements among parties to the Convention will be negotiated in light of the principles and rules it provides for, taking into consideration the specifics of each river basin.  The UN Convention highlights this aspect in stating:

Watercourse States will enter into one or more agreements, hereinafter referred to as "water agreements", which apply and adjust the provisions of the present Convention to the characteristics and uses of a particular international watercourse of part thereof. (Article 3, para. 3)

It is in such contextual and temporal context that the value-added of the UN Convention should be assessed, in the sense that it allows for consolidation and developments based on notions and principles which have been universally defined in a framework instrument.  The UN Convention stands on four main pillars and reveals, in fact, the path for an integrated approach:

The water sharing principles, i.e. equitable and reasonable use principle and no-harm rule.  The UN Convention also enunciates a series of factors to be taken into account for such allocation.The obligation of riparian states to cooperate.  According to the UN Convention, such cooperation may be achieved through different means: joint mechanisms and commissions of which riparians are members, regular exchange of information and data and notification of planned measures.The protection of the environment as an integral component of the regime applicable to international watercourses.The promotion of dispute settlement and dispute avoidance mechanisms.

The UN Convention charts a path for an integrated approach that is rather forward looking if we consider that several of its components are not part of the existing inter-state water agreements.  In practice, quality and quantity issues are not always dealt with together;  fairness in the apportionment of water resources remains a quest in many parts of the world; cooperation and exchange of information need to be strengthened as many countries still consider water data as not being part of the "public domain"; joint institutional mechanisms need to be established; and prevention and dispute avoidance mechanisms remain rather underdeveloped.  The UN Convention attempts to address many of these shortcomings; nonetheless, much work still needs to be done for furthering a legal regime conducive to sustainable development of international watercourses and that benefits the populations of all the concerned riparian states.

II.  The Next Steps for Promoting Co-Management.

Various steps need to be taken to reinforce the policy and legal regime of international watercourses.  First, although a step ahead, the definition of an international watercourse, currently provided by the UN Convention, is not comprehensive enough in an ecosystem perspective.  A watercourse is defined as "a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus," and an "international watercourse"
as "a watercourse, parts of which are situated in different States".   It, therefore, encompasses the main stream of an international river and its tributaries, as well as international lakes and groundwaters which are connected with other parts of an international watercourse.  A broader conception, however, would include all waters and lands, which are part of a drainage system.   More particularly, all underground waters (i.e. confined aquifers, indirect aquifers, etc.) should be considered as parts of such system.  Their links with surface waters should also be fully taken into consideration even though they may present distinct features as compared to surface waters.

The water sharing rules and principles should also be further developed.  Currently, there is a risk of status quo because of a lack of prioritization among the principles to be implemented.   In addition, there is a need for integrating elements of sustainability for managing the watercourses, especially the perspective of intergenerational equity to protect the rights of present and future generations.  It is in the common interest of all riparians that an international watercourse be considered as a shared resource and managed in such sustainable manner.

The collection and exchange of data are key elements for preventing disputes.  In this context, the establishment of joint mechanisms and commissions should be further strengthened to promote and establish adequate exchange of information systems.
At present, the UN Convention commitment reads as follows:

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 8, para. 2)

As can be noted, it is a due diligence-type obligation which does not hold states accountable to any precise outcome.  Moreover, efforts should be made so that these institutional settings are opened to all riparians.  Elements of flexibility may be needed to allow all riparians - parties or not to an agreement - to be invited to the work and activities to be undertaken by a joint mechanism established within the context of a particular international watercourse system.   This would constitute a first step towards their further involvement as parties to an agreement among all riparian states.

The UN Convention is a classical state-oriented instrument, with almost no provisions about the involvement of other stakeholders, and most importantly, the local communities and NGOs.  The Convention contains a unique provision dealing with individuals.  It ensures access to judicial and other procedures on a non-discriminatory basis and reads as follows:

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 systems, 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 32)

These are important stipulations; in the context of the pollution of the Rhine River, for example, individuals were able to obtain redress and compensation through such means .  It should be complemented by other means for involving the public in the management of international watercourses.  It is important in this respect to note the increasing role played by water associations.   The public can also be involved through hearings, briefings and working groups.  Public participation and access to information would raise awareness and increase support for water management policies.   In addition, the body law pertaining to human rights (e.g. right to clean water) ought to provide critical governance parameters to ensure that, in the end, the international watercourse is managed in the interests of all.

Fifth, the environmental regime should be strengthened to incorporate principles and rules of international environmental law, including the principles enunciated in the Rio Declaration on Environment and Development.   A real ecosystem perspective drawing on the dynamics and linkages among freshwater, terrestrial, marine and atmospheric systems should also be further developed.

Sixth, the Convention provides for the classical menu of diplomatic and judicial means of dispute settlement between states with the addition, of a fact-finding commission that can be established at the request of a party.  This is an important element as facts are of great importance for managing watercourses.  There may be a need, however, for strengthening preventive and dispute-avoidance mechanisms.  Lastly, the UN Convention leaves out some important topics.  One is the role played by the scientific community in the dispute settlement process and the necessity for fully incorporating it in the decision-making process.  The second topic relates to enforcement and to sanctions or compensatory measures that are necessary for ensuring effective compliance with international watercourse agreements.  A related question here deals with incentives for countries to get involved in such legal processes.  Strengthening the capacity of parties to comply with obligations under the UN Convention or any related agreement is crucial.  It has, for example, been incorporated in the World Bank policy on International Waterways.  The instrument states:

The Bank recognizes that the cooperation and goodwill of riparians is essential for efficient utilization and protection of the waterway.  Therefore, it attaches great importance to riparians' making appropriate agreements or arrangements for these purposes for the entire waterway or any part thereof.  The Bank stands ready to assist riparians in achieving this end.  In cases  where differences remain unresolved between the state proposing the project (beneficiary state) and the other riparians, prior to financing the project the Bank normally urges the beneficiary state to offer to negotiate in good faith with the other riparians to reach appropriate agreements or arrangements.

Diplomatic means, such as consultation, mediation and investigation, may also rely on incentives to spur the state that requires cooperation to adjust its position.  As a means of last resort, targeted sanctions could be imposed on such state to compel it to settle its dispute with other riparians.

III.  The contribution of the International Court of Justice for the Promotion of Co-Management of International Watercourses.
Some of the needed steps towards effective co-management have been captured by the International Court of Justice (ICJ) in its decision rendered in the case concerning the Gabcikovo-Nagymoros project.   One lesson to be drawn from the case is that the rule of law cannot be viewed in static terms.  The 1977 treaty concluded between Hungary and Czechoslovakia "concerning the construction and operation of the Gabcikovo-Nagymaros System of Locks" was silent on the subject of environment.  The Court, however, held that "the Treaty is not static, and is open to adapt to emerging norms of international law".  It further said that "the awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty's conclusion".

As to the water sharing principles, the Court stated that international watercourses should be considered as shared natural resources.  This notion should result in considering the principle of equitable utilization in the broader context of sustainable development management.  A derivative element not yet fully explored, but which deserves attention, is that the apportionment of waters is to be embedded in an ecosystem thinking, taking into consideration the rights of present and future generations.

In addition, the decision of the Court has highlighted that the law of international watercourses is not only comprised of  the UN Convention, as important as it may be, but also of other sources of international law, such as the Rio Declaration on Environment and Development.  In order to give more effect to this vision for a more holistic regime for international watercourses, the ICJ expressly stated that cooperation between riparians in the management of international watercourses is crucial.

IV.  Conclusion

The adoption of the UN Convention constitutes an important step towards the co-management of watercourses.  Effective co-management of international watercourses requires, however, further cooperation among the riparians.  Such regimes should aim at including all waters as well as lands which are part of a drainage system, or the watershed in the American parlance.  They should call for adequate and regular exchange of information and the involvement of various stakeholders and should be embedded in an ecosystem perspective.  In this context, the issues of water sharing and water allocation would find their place as "natural flows", metaphorically speaking, of an effective co-management regime with sustainability being central.
 

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2
HARMONIZING EQUITABLE UTILIZATION AND
SIGNIFICANT HARM: Comments on the 1997 ILC Convention
Sharif S. Elmusa, Ph.D.
Conference on "Water, Dispute Prevention and Development: South Perspectives"
Presented at the Center for the Global South, American Univ.,
Washington, DC,
Oct 12-13, 1998
 
  Equitable utilization is the division of the waters of an international river among the coriparian states in accordance with the legitimate economic and social needs of each, in such a manner as to achieve the maximum benefit for all with a minimum of detriment to each.
       (Jerome Lipper, 1967)
  The fictitious dichotomy of the principles of equitable sharing of water and of    the need to causing appreciable harm to any riparian state need not stand in the way of...cooperative management for the optimal and sustainable uses of international waterways.
         (Ibrahim F.I. Shihata, 1998)
INTRODUCTION
My topic is to assess how the Equitable Utilization Principle (EUP) and the Significant Harm Principle (SHP)-- the two principles that are viewed as the central pillars of the Convention-- fare in practice. The two principles concern mainly the sharing or allocation of " water rights," in the American parlance, among the coriparian s of a watercourse. They  first acquired prominence when in the 1966 Helsinki Rules that were drafted by the non-governmental International Law Association (ILA) and that informed much of the subsequent debate. The International Law Commission (ILC) of the United Nations has incorporated a variant of the Helsinki Rules in 1997 in its Convention on the Law of the Non-Navigational Uses of International Watercourses. The Convention contains other important principles concerning the need for cooperation and sharing data and information, as well as dispute resolution procedures.  A full assessment of the Convention would have to take into account the contribution of these principles to the legal norms of resolving inter-State  water disputes. This task will be handled by other colleagues (see articles by Hans Correl, Laurence Boisson de Chazournes, and Salman Salman).
 My presentation will be both deconstructive and constructive. I offer a critique of the utility of the two principles as they stand: Why the EUP (Equitable Utilization Principle)  lacks a vision; why the standard definition of SHP (Significant Harm Principle) is too narrow and in effect favors current users; why  the two principles seem discordant; and why SHP ends up being the only operative principle. These pitfall are detrimental to equitable resolutions of water conflicts. To over come them, I propose that the EUP be reformulated so as to make the social, economic, and environmental needs its locus. I will also suggest that the standard definition of the SHP be expanded to include the harm inflicted on a potential user when the current user denies it access under the pretext that the latter would suffer significant harm.
 I want to register at the outset, however, that I fully appreciate the enormous efforts that have been expended by the ILC since it took up the issue of shared international water resources in 1970, as well as the political minefields that had to be cleared for the passage of  such a Convention in a highly heterogeneous body like the UN General Assembly where many coriparians of conflicting interests have to bargain and, eventually, cast their votes. My recommendations, therefore, are probably more suited for a body like the ILA (International Law Organization), the World Bank, or other forums. These forums could create a "climate of opinion" which may pave the road for the ILC to debate them.
 A last caveat, I must justify, as a non-lawyer, my meddling in seemingly intractable legal doctrines. About thirty years ago, Jerome Lipper, in a seminal article  on equitable utilization, posited that devising principles for sharing joint water resources was to be entrusted to international lawyers, while working out the "technicalities of the actual allocations" was the province of scientists, engineers and  economists. I fall in the latter category and I have been immersed in the last few years in a critical advocacy of the Helsinki Rules, and in trying to work out equitable shares for the coriparians of the Jordan River Basin: Israel, Jordan, Lebanon, the Palestinians and Syria. My intervention thus should be  seen as a sort of feedback "from the field" to the legal professionals who formulated the Helsinki and other rules that culminated in the ILC Convention.
 
THE EQUITABLE UTILIZATION PRINCIPLE
The EUP calls on coriparian countries " in their respective territories [to] utilize an international watercourse in an equitable and reasonable manner"  (Article 5.2 of the Convention) Equatability has been understood y to mean not division into equal portions, but the equality of right to use the water for beneficial purposes.  Equitable utilization would be based on a list of  "factors." The factors enumerated by the Convention (Artilce 6) are exhibited in the Box.  Their structure and thrust are similar to those of the 1966 Helsinki Rules, and little would be gained from a line by line comparison of the two sets. What the ILC has done by incorporating the EUP and the factors into a Convention is to  impart to EUP and the factors an official standing they hitherto had lacked.
 Neither Article 6  nor any other item in the Convention offer more guidance as to how the factors can be made operational. The standard assumption is that they all should be considered and none is paramount. However, if the analyst tries to translate the EUP into concrete figures-- as I and some others have done in the context of the Israeli-Palestinian water dispute-- he is bound to face immense difficulties, for two reasons: one is that individual factors lack specificity as to meaning and, the second, is that multiplicity of the factors and lack of assigning weights to each diminish their value as a practical tool.

Individual Factors Lack Specificity
 While by definition principles cannot be expected to touch on minor details, there are serious lacunae in the manner in which the factors are State d in Article 6 that cannot be bridged on technical grounds alone. Let us illustrate this first by factor (a) that pertains to the natural attributes of a watercourse. Let us take two obvious attributes or sub-factors, the drainage area and the flow that each coriparian  contributes to the watercourse. These are two basic properties of watercourse basin, and have frequently appeared in equitable utilizations factor lists. The first sub-factor measures land area and the other water quantity. Their relative size distribution among coriparians usually are usually not the same. In the Jordan River basin, for instance, Lebanon contributes more flow to the basin than does Jordan. Were we to go by these two sub-factors in calculating the coriparians' shares, whom should we award  greater quantities of water, Jordan or Lebanon? Why? This type of question could be asked about the rest of the sub-factors, and could lead to an early impasse.
 Stephen Schwebel, who served as Special Rapporteur for the ILC, seems to have grappled with such a problem and with the question of the practicability of the EUP in general. In his Third Report to the ILC, he took, what Robert Hayton and Albert Utton, two prominent members of the committee that drafted the Bellagio Draft Treaty,  described as a "different approach" to "'bring [the EUP] down to earth.'" In it, he included under the first factor of natural attributes only the relative contribution to the flow: "The system State's...  contribution of water to the system , in comparison with that of other system States." (Emphasis added)
 To make a factor like the first one operational, the framers of the Convention could have either followed the "down-to-earth" approach of  Schwebel or provided specific guidelines as to the relative import of the individual sub-factors. Instead, they gave us a long list of vague parameters without any hint as to how to combine them.
 A further illustration of this kind of conundrum are the two sub-factors-existing and potential uses of the watercourse- of factor (e).  Is not striking a balance between existing and potential use the core of water disputes and the major issue that negotiations seek to settle? If this is the case, how could they be reduced to a "factor"?  Although I realize that "potential use" was added in the Convention to balance the mention of only "prior use," in previous lists, such as the Helsinki Rules, nonetheless, its addition makes little conceptual or practical sense.
 To wit, a revision of the preceding sub-factors, if they must remain, is indispensable for imparting to them practical utility.

Elasticity of Factors

The Achilles heal of the factors, however, is their multiplicity and lack of weighting preferences or even hierarchical ordering. For assume that the meaning and the implications of each factor for utilization were resolved among the disputants, how much weight would they impute to each factor? Should they be assign equal weights to each factor then settle for an overall average of the shares under each factor? Or should they ascribe greater weights to some than to others? Why and on what grounds? In this connection, the statement given in Article 6.3 "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors"  begs the question.
 The lack of weighting preference renders the EUP "elastic," as Awn Khassawneh, a former member of the ILC, put it.  Such elasticity opens the door wide for countries to claim the factor (s) that favor them as being paramount or overriding, as they have commonly done in the past. Turkey, for example, often claims that the Euphrates is a Turkish- cross-boundary or transboundary-- river, not an international river. Ethiopia, as well, bases its claims in the Nile River basin on its being the main contributor of the flow to the Nile. In effect, Turkey and Ethiopia are saying that factor (a) is paramount. On the opposite end, Israel in the Jordan basin- to which it contributes small fractions of total flow and drainage area-- stresses that prior use is paramount because it is the primary user of the basin's water; and Egypt, for like reasons, also makes a similar claim in the Nile basin.
 The point is not whether these opposing claims are legitimate or not. It is natural for a country whose territory is the main feeder of a watercourse to feel proprietary about it. Likewise, prior use creates economic and social structures and even cultures that cannot be easily remade. It spawns expectations that cannot be dismissed off hand. In some cases, such as the Nile, we owe a whole country to this great river. Egypt is the gift of the Nile, said Herodotous more than 2,400 years ago.
 Yet, the ultimate effect of not giving the factors specific weights or a hierarchical order is that the settlement of the conflicting claims is likely to be informed more by power politics and other factors, than by the factors prescribed by the EUP. In other words, the law ultimately fails in its mission to diminish the arbitrariness of power in the allocation of shared water resources.
 Even in the academic community, there is reluctance to refer to the EUP and tinker with the factors. Some researchers have tinkered with game theory; some with Paretian environmental analysis.,   The Kennedy School of Government at Harvard University has sponsored a study of across-boundary water marketing in the Jordan basin that revolves around the efficiency of water use. In it, the authors have given only one line to the question of initial property rights, which they said would have to be negotiated among the parties. These approaches are useful in so far as they can help define economic interests and discover efficient allocations; but they are not anchored in international norms. Moreover, States are not likely to abide by allocations based on, for example, Pareto optimality because they perceive power in relative terms: if one  State is made better off, the rivals feel automatically they have become worse off. That academicians generally have opted for these "normless" approaches instead of  the EUP may have to do with the demands of the discipline of economics, but the fluidity of the EUP itself cannot be ruled out as a contributing cause.
 I suggest that the EUP could become a useful tool if  it gives precedence to the factors that cover social, economic, and environmental needs-- (b) and (f)-- over the other factors. The proposition is predicated upon the following considerations.
  When countries express their wish to use water they had not harnessed before, they commonly cite the utility of water for their social and economic development.
  Likewise, when countries protest new uses by other coriparians, they claim that such uses negatively impacts their socioeconomic  and environmental needs.
  Ascribing primary weight to socioeconomic  and environmental needs creates an opportunity for a change in water allocations that reflect the changing circumstances and  for more efficient uses than those existing.
  Socioeconomic and environmental needs can incorporate other factors, such as the population factor (c) and the alternative resources factor (g). The size of the population is a necessary variable for estimating such needs, and the availability of alternative resources accounts for other water sources the country might have and that might contribute to their satisfaction.
  Factors other than socioeconomic needs may have been originally intended to assist in resolving disputes in case an agreement could not be reached on the basis of those needs. At least this is what Lipper seems to have thought. , and gave  "prior use" a  great weight-- but only beyond the relative satisfaction of socioeconomic needs (environmental needs were not yet recognized as vital). What happened in reality, however, was the opposite: Other factors, like natural attributes and prior use, not socioeconomic and environmental needs, have been invoked first by coriparian States, as stated earlier. Restoring the socioeconomic and environmental needs to the center of the EUP thus would be a proper response to the "unanticipated consequence" of putting other factors ahead.
 True, socioeconomic and environmental needs cannot be defined easily and their determination may be  controversial. The socioeconomic needs would necessarily include some or all of the following the common uses of water, municipal and industrial, food production, "instream" (religious, recreation), transportation. The environmental would include the structural integrity of the water system (especially for groundwater), public health, ecosystem maintenance and biodiversity. These are competing needs and balance would have to be struck among the allocations for each activity. Nor can each coriparian  expect full satisfaction of what it considers its just needs, and they would have to accept, as an initial premise, to live with "relative justice." Whatever the difficulties in determining acceptable relative socioeconomic and environmental needs, narrowing the field of bargaining to these needs would greatly simplify negotiations.
 
SIGNIFICANT HARM PRINCIPLE
 The SHP essentially signifies that coriparian A should not use an international watercourse in such a way as to cause significant harm to coriparian B. It is supposed to derive from the Latin maxim: "So use your own property as not to injure your neighbor." The intent of the SHP was to protect weak downstream States from injury arising out of the unilateral development of watercourses by more powerful upstreamers. The incidence of strong States on the upstream and  weak counterparts  in the downstream is not uncommon; examples, the U.S. and Mexico on the Colorado and Rio Grande rivers, India and Bangaldesh on the Ganges River, and Turkey and Syria on the Euphrates River. The SHP applies both to water quantity and the environment. In the case of the environment, the common situation is for the upstream usage to have an adverse impact on that of the downstream, owing to the natural one-way flow of watercourses. The SHP in its current definition thus remains germane to environmental protection in the downstream.
 As for water quantity, the SHP does not seem to recognize that downstreamers can be more powerful than the upstreamers, and can prevent them from achieving equitable access. (Egypt and Ethiopia in the Nile; Israel and the Palestinians in the West Bank groundwater basin). The lack of recognition of such asymmetry of power encourages the perpetuation of the prior use of the more powerful coriparians. For if coriparian  A is using the water and coriparian B expresses its intention to tap a portion of this same water, then A, the first user, immediately raises the specter of significant harm to its agriculture, industry, and other water-using activities that depend on the international watercourse. If  A is the stronger coriparian, it could act to prevent B from proceeding with its development plans and justify its action by reference to the SHP.
 It might be said that in such a circumstance the weaker coriparian can appeal to the EUP. There is controversy among as to whether the Convention gives precedence to EUP or the SHP. To my mind, the debate over the textual interpretation of the Convention, the semantics, if you will,  is beside the point. It is not that semantics are irrelevant, but that even if the Convention was to pronounce unambiguously that equitable utilization has primacy over significant harm, we would still be left with the with SHP as the operative norm. That is because, on the one hand,  the EUP, for the reasons delineated above, is impractical and, on the other hand, the SHP is easier to establish and does not require an agreement.
 The foregoing conclusion seems to have underpinned, for example, the World Bank's lending policy for water projects, as can be gleaned from the following statement by David Goldberg, who was assistant general council  at the Bank when he wrote it:

 In the Bank's approach under OD [Operational Directive] 7.50, whereas the 'no appreciable harm' principle is firmly embodied in the OD, no reference is made to the equitable sharing principle. The Bank does not take a position adverse to this principle, but in the absence of an agreement between the parties or the judgement of a competent tribunal, either of which the Bank would respect, the right of each party to an equitable sharing is inchoate, and the Bank has neither the authority nor the competence to adjudicate such rights.

Although the above statement does not fully explain the Bank's complex practice, and Goldberg wrote his article before the Convention was approved, what he said about the inchoateness of the EUP and the practicality of the SHP remains fundamentally valid.
  The discriminatory thrust of the SHP may be rectified by broadening the definition of the SHP to make it applicable not only to the reduction of water withdrawals of prior users, as it is currently understood, but also to the denial of use to new claimants. Under the broadened definition, the coriparians would weigh the respective harms they each incur and divide the burden equitably! Furthermore, the broadened definition harmonizes, even makes identical, the SHP and an EUP that gives precedence to socioeconomic and environmental needs. The reason is that significant harm can only be assessed by measuring the potential impact of State B's actions on State A's socioeconomic  and environmental needs (or vice- versa). This assertion is confirmed by the ILC's Report (40th session, May 9 to July 29, 1988). The Report states that:

 harm must be capable of being established by objective evidence. There must be a real impairment of use, i.e. a detrimental impact of some consequence upon, for example, public health, industry, property, agriculture, or the environment in the affected State.

Accordingly, the only difference remaining between the two modified principles is that whereas they both would be estimated in relation to socioeconomic and environmental needs, EUP is stated in the positive and SHP in the negative.

CONCLUSION
The EUP as defined in the 1997 Convention is but a variant of the Helsinki Rules formulated more than thirty years ago. It is inchoate, thanks to the multiplicity of criteria or factors that it stipulates must be considered for utilization to be equitable, and the lack of assigning weights to each or even of  hierarchical ordering. While the inclusion of factors helped secure votes in the UN General Assembly, it  keeps the door wide open for a bargaining among coriparian States based not on the factors enumerated under the EUP, but on considerations of power politics and others extraneous to the principle. It also leaves the SHP as the only operative norm and which, as has been defined, traditionally favors the current powerful users of international watercourses. Such pitfalls can be overcome by having the EUP give precedence to socioeconomic  and environmental needs and at the same time broadening the SHP to make it include the harm incurred by the denial of new uses, not just by the reduction of old ones. The UN may not be the best forum to start debating this question; the debate could start elsewhere where the political constraints are not as inhibiting until a climate is created that makes it possible for the UN to consider the subject. However, time is of the essence as the demand for water in many countries that share such resources is increasing exponentially while the supply is stagnant, if not shrinking, owing to rampant pollution.
 

ENDNOTES

1.   Lipper, 1967, p. 63.
2.     Ibrahim Shihata is currently Senior Vice President and General Council at the World Bank. The statement is from his          "Forward' to the volume of Salman and de Chazournes, 1998 p. vii.
 3.    Traditionally, the adjective "appreciable" was used instead of "significant;" the latter was employed by the Convention, perhaps in the belief that "significant" was somehow not as strong as "appreciable."  Whether there is a difference between the two terms is not of interest here. (See, for example, McCaffrey , 1998, p.  21)
4.    Lipper, 1967, p. 42.
5.    Elmusa, 1995 and 1997.
6.    See, for example, Elmusa, 1995 and 1997; Benvenisti and Gvirtzman, 1994; and Moore, 1994.
7.    ILC Third Report, cited in Hayton and Utton, 1989, p. 699
8.    Khassawneh, 1995.
9.    A solution is Pareto optimal when one group in society is made better off without making other groups worse off.
10.  See, for example, Netanyahu, et al., 1994; and  Rogers, 1991.
11.    Fisher, et al., 1994.
12.    Lipper, 1967, pp. 63-4.
13.    McCaffrey, 1998, p. 22
14.    Goldberg, 1992, p. 73.
15,    This directive is an internal policy approved by the Bank's executive directors and applicable to all projects on an international waterway. (Goldberg, 1992, p. 71)
16,    Cited in Goldberg, 1992, p. 72

 

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3
Summarizing the first day's discussions
Remarks by Joe Sills,
Director, UNIC/Washington DC

 
 Professor Maksoud, ladies and gentlemen:

 If there is any one message that comes from today's discussion, it is that, if a wake up call were needed, the alarm has sounded loud and clear.

 I will not review the numbers that Dr. Serageldin and others gave on individual countries; I will only state that scientific measurements give consistently frightening data and trends.  And anecdotal information, such as the Yellow River in China failing on two-thirds of the day of the year to flow to the sea, and the horror of the Aral Sea, focuses our attention in a dramatic fashion.

 Efforts are underway: it is incorrect to say that no one is aware of the problem and nothing is being done.  We have heard today as an example the account of the work of the National Water Resources Authority of Yemen.

 But the scope of the problem -- the sheer weight of the numbers -- is overwhelming all efforts.  Here the data from the World Bank on the projected dangerous rise in the number of people without access to safe water are specially frightening.

 Dr. Basak's incisive analysis of "scarcity in the midst of plenty" shows that even in areas of high rainfall there are shortages of useable water.  However, as Dr. Eckstein noted, there is more than enough fresh water in the world; the question is how it is used and conserved.  Dr. Basak's phrase, "the pollution load" points to this basic fact: it is not just the water supply: it is pollution, it is environmental degradation such as deforestation -- and it is, in some places, carelessness in the usage of water.

 Perhaps most of all, it is the steady, seemingly relentless increase in the world's population, almost all of which is in the Global South.  This leads to the conclusion, as stated by Ismail Serageldin, that we must treat the ecosystem as a unit.

 What more must be done?

 There must be even more of a sense of urgency.  That certainly comes out of today's dialogue.  Water must be given a higher priority.  The tangible measure of this is, of course, allocation of resources.  Resources must at least begin to approach the scope of the task at hand.  The strong commitment of the World Bank and also of regional and bilateral financing sources is encouraging.

 But, as it is today fashionable in addressing political crises to emphasize preventive diplomacy, in the question of water resources, as Dr. Serageldin mentioned, the costs of repair are exorbitant and prevention is far more cost effective.  But here we are up against some stark economic realities.  As an example: timber is in high demand and can be sold immediately for sizable profit.  The costs of deforestation not only take longer to come due, but those who suffer are usually not those who profited from the sale of the timber.  However, perhaps what is happening in China today -- where the link between deforestation and flooding is clear -- will change the world's thinking in this regard.

 The disparity between natural -- the water basin -- boundaries and political boundaries was noted by several speakers.  One discussant usefully described this as the emergence of a new water map which is in conflict with the political map.  However, any redefinition of political boundaries is highly unlikely.

 Likewise, while it is accurate and useful to note the asymmetry between the balance of power, or the concentration of power, and the balance of needs, and while balance of power regimes may sooner or later fall apart, for now they are what we must live with.

 Should we, thus, be spending valuable time concerning ourselves with unnatural political boundaries and inequitable power relationships?  Should we not rather concentrate our efforts on creating "win-win" situations?  Surely, this is the goal of all schemes to co-manage shared resources.  I was struck by the comment that in the vast majority of the cases, if politicians can settle the political problems, the technicians can work out the technical ones.  This is, of course, relevant to the Middle East.

 But we must, at the same time that we accept political reality, not lose sight of needs, and of equity and justice.  The analysis of Mr. El-Musa of equitable utilization and appreciable harm is important in this context.

 In this regard, Professor Kubursi's' comments on the economic issues are important.  Just as we must recognize political reality, we must also recognize economic reality.  Potable water is in short supply in both Saudi Arabia and the Sudan.  Saudi Arabia can import all the bottled water it desires -- the Sudan cannot.  Thus, as Professor Kubursi suggests, the question is not about the physical amount of water available but the amount needed to support a desired standard of living.

 But -- as is the case with all matters related to poverty -- we inevitably return to the question of how considerations of equity and of justice can be reconciled with economic, political and power relationships?

 Must we bound by the Golden Rule as restated for our globalized society: whoever has the gold makes the rules?  I have no answer to this most basic of ethical concerns.

 Another useful area to come out of today's discussion - and you will not be surprised that as a UN official I would mention this -- is the need for regional and international cooperative endeavors, as well as the strong involvement of NGOs, such as the World Water Council.  We need, as Professor Swain stated, to develop an international framework.

 To be sure, a great deal of this is happening today.  The cooperation in southern Africa was mentioned, as was that in the Mekong Delta.  Hans Corell's incisive analysis of the convention on the non-navigational uses of international watercourses points to such an effort, and Madame Boisson de Chazournes' analysis gave us a meaningful commentary on the strengths and weaknesses of that treaty.

 Multinational, multi-agency involvement certainly has its advantages, including combining knowledge, experience and funding, providing dispute resolution provisions, and the strength of agreements international in scope.  But there are also disadvantages, not the least of which is the time frame.  As Hans Corell noted, negotiations on the 1997 international watercourse treaty began in the UN in 1970.  And, as we learned, it took 25 years to get the Mekong plan adopted.

 One is reminded of the old comparison between diplomats making international agreements and elephants making love: contact takes place at a high level, a lot of dust is kicked up, and it takes years to produce results!

 Where is the sense of urgency?  Must we all, figuratively, die of thirst while waiting for a drink of water.  Again, I have no answer to this since, alas, the actors are sovereign states.

 I was, finally, struck by two comments on the issue of complete and reliable data.  Professor Kubursi suggested that there is a scarcity of good data, and that data are often withheld.  And Professor Swain noted the frequent manipulation of data, presumably to further political goals.  Obviously there is a need for what may or may not be attainable: a reliable data based on the world's water resources.

 There is, clearly, a need for a vision for the future, a vision based on knowledge, awareness, if possible, consensus and, in the end, a vision which can influence political strategies and decisions.  In the eighteen months between now and the 22nd of March of the tear 2000, there is obviously a great deal to be done.

 Thank you.
 

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Last Updated November 1998
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