International Law for the management, use and protection of transboundary watercourses and the establishment of Joint Bodies

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Contents

Reasonable and equitable utilization: The Helsinki Rules

The first efforts to codify the international law on non-navigational uses of transboundary watercourses were undertaken by the Institute of International Law and the International Law Association (ILA). In 1966, the latter adopted the Rules on the Uses of the Waters of International Rivers (hereinafter, the Helsinki Rules). The Helsinki Rules were not mandatory, however they were commonly acknowledged to be a reflection of existing international customary law. The Helsinki Rules fixed the principle of “reasonable and equitable utilization”. According to this principle, each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin. In the Helsinki Rules, the principle of “reasonable and equitable utilization” prevailed over another basic norm of the legal regime for international watercourses, the principle of “no significant harm”. The latter, as formulated in the Helsinki Rules, requires States to prevent any new form of water pollution or any increase in the degree of existing water pollution which would cause a substantial injury in the territory of a co-basin State.

Beyond the Helsinki Rules

Berlin Rules

In 2004, ILA adopted the Berlin Rules on Water Resources, a revision of the Helsinki and other ILA rules. The Berlin Rules present an attempt to incorporate environmental concerns and human rights in this area of law.[1] Among other issues, they address institutional arrangements by basin States such as “basin wide or joint agency or commission with authority to undertake the integrated management of waters of an international drainage basin” or “other joint mechanisms”.


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

The Helsinki Rules established the foundation for the work of the International Law Commission that led to the adoption by the United Nations General Assembly in 1997 of the Convention on the Law of the Non-Navigational Uses of International Watercourses (hereinafter, the United Nations Convention of 1997). This Convention has not yet entered into force. It confirms the principle of “equitable and reasonable utilization” and lists a number of factors to help define such utilization. The United Nations Convention of 1997 tries to achieve a balance between the two principles, by obliging States to prevent causing of significant harm to other watercourse States, and where significant harm nevertheless is caused, to take all appropriate measures to eliminate or mitigate such harm, having due regard for the principle of “equitable and reasonable utilization”.[2]


The United Nations Convention of 1997 encourages States to enter into new watercourse agreements in order to apply and adjust the provisions of the Convention to the characteristics and uses of a particular international watercourse or parts thereof. The Convention recommends that States consider the establishment of joint mechanisms or commissions to facilitate cooperation in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions.


Convention on the Protection and Use of Transboundary Watercourses and International Lakes

Adopted in Helsinki in 1992, the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (hereinafter: the Water Convention) entered into force in 1996. It is a unique framework instrument that places much emphasis on and provides mechanisms for developing institutional cooperation between countries. An amendment of 2003 allows United Nations Member States outside the UNECE region to join this Convention. When this amendment comes into force, the Water Convention will increase its importance beyond a regional framework document.


As of October 2009, there were 36 Parties to the Water Convention, including the EECCA countries such as Azerbaijan, Belarus, Kazakhstan, the Republic of Moldova, the Russian Federation, Ukraine, and Uzbekistan.


The Water Convention obliges Parties to take all appropriate measures to prevent, control and reduce any transboundary impact. It requires Parties to take all appropriate measures to protect transboundary waters, to ensure that transboundary waters are used with the aim of ecologically sound and rational water management, to ensure that transboundary waters are used in a reasonable and equitable way, and to ensure conservation and restoration of ecosystems. The precautionary principle and the polluter-pays principle are among the basic principles that Parties should be guided by. In addition, the Convention includes several important concepts, such as controlling and preventing pollution at source, conducting an environmental impact assessment, and ensuring application of the best available technology.


The Water Convention includes provisions for all Parties and provisions for “Riparian Parties”, i.e. the Parties bordering the same transboundary waters. Whereas the United Nations Convention of 1997 only encourages States to conclude watercourse agreements, the Water Convention requires riparian Parties to enter into bilateral or multilateral agreements or other arrangements, or to adapt existing agreements or arrangements, so as to eliminate any contradictions with the Convention’s basic principles. According to the Water Convention, such agreements shall provide for the establishment of joint bodies. Therefore, the conclusion and/or revision of bilateral or multilateral agreements and the establishment of joint bodies are mandatory for Parties to the Convention, which considers such agreements and bodies to be a key mechanism for cooperation between riparian States.


The Revised Protocol on Shared Watercourses

The obligation to establish shared watercourse institutions is part of another framework document, the Revised Protocol on Shared Watercourses, adopted in 2000 in the framework of the South African Development Community. The overall objective of this Protocol includes facilitating the establishment of agreements and institutions for the management of shared watercourses.[3]


European Union Water Framework Directive

The European Union (EU) Water Framework Directive (WFD) of 2000 [4] is based on inter alia, the Water Convention. Due to its requirement to identify competent authorities for international river basins, the EU WFD is an important document for the international legal regime of joint bodies. The EU WFD streamlines earlier disintegrated water policy rules and establishes a coherent framework for the protection of inland surface waters, transitional waters, coastal waters and groundwaters. The EU WFD recognizes the river basin as a main natural unit for the protection of aquatic environment and aims to implement the principles of IWRM. The Directive requires EU Member States to identify river basin districts, which may include one or more river basins, and to produce within nine years a river basin management plan and programmes of measures for each river basin district.


According to the EU WFD, a river basin covering the territory of more than one Member State is assigned to an international river basin district. In this case, Member States sharing the basin should aim at producing a single international river basin management plan. The Member States may, for this purpose, use existing structures stemming from international agreements. In order to implement this provision, many existing commissions became the platforms for coordination of the EU WFD implementation. For example, the Coordination Committee Rhine was set up in the framework of the International Commission for the Protection of the Rhine (ICPR) to coordinate the implementation of the EU WFD in the Rhine River basin district. In addition to countries participating in the ICPR, the Coordination Committee Rhine includes Austria, Belgium (Wallonia) and Liechtenstein.


The International Commission for the Protection of the Oder against Pollution (Oder Commission), the International Commission for the Protection of the Elbe, the International Commission for the Meuse/Maas, the International Commission for the Scheldt, and the International Commission for the Protection of the Danube River(ICPDR) are coordination platforms for other international river basin districts. Other joint bodies, for example, the International Commissions for the Protection of Mosel and Saar Against Pollution(Mosel-Saar Commissions) and the International Sava River Basin Commission (Sava Commission), participate in the implementation of the Directive in the relevant sub-basins. Therefore, the role given by the EU WFD to joint bodies is ample evidence of the importance of existing joint commissions.


Where a river basin district extends beyond the territory of the EU, the EU WFD stipulates that a Member State shall endeavour to establish appropriate coordination with relevant non-Member States, with the aims of achieving the EU WFD objectives throughout the river basin district and producing a single river basin management plan. Cooperation with many EECCA countries takes place in this area.

References

  1. The preface to the Berlin Rules acknowledges that “These Rules both express rules of law as they presently stand and, to a small extent, rules not yet binding legal obligations but which, in the judgement of the Association, are emerging as rules of customary international law”. It is not clear yet whether Governments and courts will accept the Berlin Rules as an adequate formulation of customary international law.
  2. For more information about the emergence and basic principles of international law in this area, see Legal basis for cooperation in the protection and use of transboundary waters, Capacity for Water Cooperation (CWC) Series No.1 ECE/MP.WAT/21, United Nations, New York and Geneva, 2006.
  3. The Agreement on Basic Principles for Rational Use and Protection of Transboundary Watercourses in the Member States of the Commonwealth of Independent States is a framework document on transboundary waters of relevance for EECCA. This Agreement was concluded in 1998 and entered into force in 2002. Belarus, the Russian Federation and Tajikistan are Parties to this Agreement. The Agreement stipulates that its implementation shall be realized, inter alia, by entering into bilateral and multilateral agreements and treaties. The Agreement does not address the establishment of joint bodies.
  4. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.

See also

Joint Bodies in Eastern Europe, Caucasus and Central Asia

Intergovernmental transboundary waters agreements concluded with participation of EECCA countries from the beginning of the 1990s

European Union Water Framework Directive

Water-related Legislation and Conventions

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

Convention on the Protection and Use of Transboundary Watercourses and International Lakes

International water law and the long path towards the human rights dimension: the UNECE Water and Health protocol

External Resources

Attachments

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