FUTURE WATER WARS

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Water Wars in the Near Future? Reconciling Competing
Claims for the World's Diminishing Freshwater Resources -
The Challenge of the Next Millennium
GEORGE WILLIAM SHERK, PATRICIA WOUTERS and SAMANTHA
ROCHFORD
The Centre for Energy, Petroleum and Mineral Law and Policy, University of Dundee
[http://www.dundee.ac.uk/cepmlp/water/]
1. 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 overemphasised.
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 examines 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. 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
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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?
2.1 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,
Vietnam, 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.
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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 interrelationship
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, Vietnam
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.
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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, Venezuela, Vietnam,
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
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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
watercourses.
2.2 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.
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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 restoration 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 specific that it is directed at limiting adverse transboundary impact.
These goals are very different and each instrument must be considered in its particular
context.
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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.
3. 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 preferred 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.
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ANNEX: Why did China and Turkey vote against?
Mekong River (Cambodia, Laos, Thailand, Vietnam, Myanmar, China)
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.
Tigris-Euphrates river (Turkey, Syria, Iraq, ..)
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 reply
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.