Convention on the Law of the Non-Navigational Uses of International Watercourses

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Convention Name

Convention on the Law of the Non-Navigational Uses of International Watercourses (1997)

Description

United Nations Convention on the Law of Non-Navigational Uses of International Watercourses is a document that was approved by the United Nations General Assembly by a vote of 103-3 on May 21, 1997. This was the first global water law. The present Convention applies to uses of international watercourses and of their waters for purposes other than navigation and to measures of protection, preservation and management related to the uses of those watercourses and their waters.

Status

As of Januray 2009, it has not been ratified by the U.N. membership.

URL

Negotiations on the Convention

When Agenda 21 was discussed in 1991/92, negotiations on the International Convention on Non-navigational Uses of International Watercourses were ongoing, which probably explains the tentative language. As early as 1970, the UN General Assembly (UNGA) requested the International Law Commission (ILC) to take up the study of the law of the non-navigational uses of international watercourses. At the time of the UNCED process, the ILC adopted on first reading a set of thirty-two articles in 1991. When the draft articles were sent to governments for eliciting their comments and observations, substantive legal principles governing the utilisation of international rivers and the protection of related ecosystems had been very controversial.

The Draft Articles were approved on second reading by the ILC in 1994 and submitted to the UNGA for consideration by the states. In resolution 49/52, the UNGA invited states to present written comments and, at the same time, it proposed to establish a working group comprised of the UNGA Sixth Committee to elaborate the text for a convention. Due to ongoing controversies, the Working Group could not accomplish this task, and the final text, which was the result of the second session of the Working Group, was not sub-mitted to the UNGA until 1997. It took more than 25 years for the Convention to come before the General Assembly for adoption on May 21, 1997. A majority of states voted in favour (103 in number), which indicates that the rules embodied in the convention were acceptable; only three states voted against (Burundi, China and Turkey) and 27 abstained (Andorra, Argentina, Azerbaijan, Belgium, Bolivia, Bulgaria, Colombia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Monaco, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, Uzbekistan.) The number of ratifications necessary to bring the convention into force was set at a level of thirty-five which was rather modest in comparison with the number of UN members and the positive votes. However, only 8 states agreed to the terms by 20 May 2000 of this first global treaty that focuses on regulating the use of international watercourses (i.e. Finland, Hungary, Jordan, Lebanon, Norway, South Africa, Sweden and Syria; 10 more states had signed).

Although the 103 affirmative votes show that the Convention is generally accepted and indicates broad agreement, it has been argued that the convention has not successfully addressed recent environmental challenges, and it is considered a weak legal instrument for resolving conflicts.

Physical Scope of Applicability of the Convention

The geographical and hydrological area within which the Convention is operative is defined by the term ‘international watercourse’, “a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus (...) parts of which are situated in different States” (Article 2(a),(b)). This definition replaced the early use of the drainage basin concept of the Helsinki Rules which was supported by some countries as the most scientific and rational context for agreements. Other countries feared that the geographical implications of the term ‘drainage basin’ could open the way to undue restrictions on their sovereignty over their territory. Instead, they favoured a much narrower approach based on definitions which are used in earlier treaties on river navigation and which relate to the main surface water channel of a river. The term applied excludes not only tributaries, but also other components such as confined ground waters because they are not connected with surface waters so as to constitute a ‘unitary whole’. The term ‘common terminus’ intends to prevent two single river basins which are connected by an artificial canal from being seen as a single watercourse, and eventually extend the geographical scope and the states to participate in agreements.


There remain considerable doubts that activities of states on land could be totally ignored or excluded from the scope of a legal regime of an international watercourse because decisions on land use affect water availability as well as water quality. A drainage basin (or watershed) may, however, come into play as an area where a harm causing activity is carried out and land-sided non-point pollution sources requires regulation. It has been mentioned that any effective control, for instance, of water pollution requires sustainable land use practices. However, despite these failings, the convention does not confine the obligation to prevent pollution only to activities taking place on a watercourse.

The Framework Character of the Convention, its Relation to Other Watercourse Agreements and the Rights of States

The Convention is considered to be a Framework Convention which is somehow different as applied, for example, in the context of the Convention on Climate Change or the UNECE Convention dealing with transboundary rivers and international lakes. The term usually applies to a treaty which needs further elaboration and specifications in annexes or protocols. The development of those dynamic instruments usually takes place through e.g. meeting of the parties to agreements or River Basin Organizations established by the conventions themselves. Furthermore, the Convention, while encouraging states to ‘consider harmonisation’, does not prevent states from departing from its general principles. In actual fact, the present framework Convention does not affect in any way existing watercourse agreements, and the parties are free to deviate. The provision has been criticised for the reason that it will have no impact on the many already existing watercourse agreements, at the same time depriving the Convention of its normative function.


This was the result of painstaking negotiations between states that were parties to already concluded agreements, and those who favoured that the Convention supersede any preexisting agreements if they were in conflict with its basic principles. The former regarded the Convention as a potential threat, as their application to the Convention could have upset an already established balance. On the other hand, states that were not parties to agreements that applied to a whole or only parts of a watercourse to which they were co-riparians opposed the amendments that would except existing agreements from being applied to the Convention. Despite these legitimate concerns, Article 3(3) allows that watercourse states “may enter into one ore more agreements (...) which apply and adjust the provisions of the present articles to the characteristic and uses of a particular watercourse or part thereof”.


However, if agreements only cover parts of a watercourse, states are not allowed to adversely affect uses by other states without their consent. In addition, non-parties are protected in so far as the Convention explicitly mentions that their rights and obligations would not be affected by an agreement between other states on a watercourse. This is particularly important since Article 4 provides different rights to states for participation.


It considers participation in two kinds of agreements: (a) Agreements that apply to an entire watercourse where all states on a watercourse are entitled to participate in negotiations and to become party to the agreement in question. (b) Agreements that apply to a part, to a particular project, programme or use. The right of participation is not as strict as in the former case, because some states successfully interfered as they did not wish “to include in the negotiations third states sharing that watercourse, or may prefer that those other states not become parties to the agreement”. The provision allows the exclusion of states which are affected by hydraulic works, which may later give rise to disputes.

References

See also

Full Text Document of the Convention

Water-related Legislation and Conventions

Status and importance of water-relevant international legal instruments for the 5 Central Asian countries

External Resources

UN Treaty Website

Potential Effects from the Non-Entry into Force of the UN Watercourses Convention (2008)

Attachments

 Convention on the law of non-navigational uses of international watercourses.pdf

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