The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) entered into force in August 2014. Despite overwhelming support when signed in 1997, the ratification process has been slow. As a binding treaty, the Watercourses Convention provides hope that its provisions will articulate legal principles of transboundary water management capable of promoting cooperation and regional agreements. Despite entry into force, however, global support for the Watercourses Convention is weak, concurrent efforts to develop treaty regimes governing water resources create competition for resources and may obscure understandings of international water law, and the foundational principles of the Watercourses Convention remain ambiguous. A case study of the discordant hydropolitics of the Nile River Basin--perhaps the most significant watercourse lacking a cooperative management agreement--best illustrates these limitations. This Article provides an analysis of international water law and the limitations of the Watercourses Convention, considering the implications of entry into force. While the Watercourses Convention creates a workable framework for negotiating regional agreements, low levels of support from UN member states, competing treaty instruments, and ambiguous legal principles limit the potential impact of the Watercourses Convention.
Table of Contents I. INTRODUCTION II. THE HISTORY OF INTERNATIONAL WATER LAW III. THE LIMITATIONS OF THE UN WATERCOURSES CONVENTION A. Lack of Support from UN Member States B. Competing Treaty Regimes C. Principles in Tension IV. LIMITATIONS EXPOSED: THE CASE OF THE NILE RIVER BASIN V. THE UN WATERCOURSES CONVENTION IN FORCE: THE WAY FORWARD I. INTRODUCTION
When the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) was presented to the UN General Assembly in 1997, it was met with overwhelming support. One hundred and six countries voted in favor of the Convention, with only three countries opposed. (1) At the time, there was optimism that the Watercourses Convention would provide states with a robust treaty codifying a clear set of customary principles of international water law, and establish a foundation for site-specific regional agreements. The 1990s were a period of significant growth in the international environmental field, with several agreements providing meaningful frameworks for resolving complex environmental challenges, including the Convention on Biological Diversity, (2) the Convention to Combat Desertification, (3) the Framework Convention on Climate Change, (4) and Kyoto Protocol. (5) Amidst such efforts, the Watercourses Convention lacked the attention and political capital necessary to build on the Watercourses Convention's initial support, and therefore did not move quickly towards entry into force. After seventeen years, the Watercourses Convention finally entered into force and attained binding treaty status on August 17, 2014. (6)
Slow progress in the development of binding international water law is not for lack of need. Ninety percent of the world's population lives in a country that contains transboundary surface waters, and two billion people depend on groundwater for their survival. (7) Meanwhile, most of the world's 563 (8) transboundary watercourses lack a cooperative management framework. (9) With water serving important needs for domestic and municipal water supply, agricultural irrigation, industrial production, energy development, transportation, recreation, and commercial use, transboundary water resources have the potential to be an escalating source of conflict between states. An international agreement creating a framework for cooperation--while codifying customary rules and norms--presents an opportunity to mitigate conflict and promote cooperation.
The Watercourses Convention, however, has not provided the framework or legal clarity hoped for by its drafters and early supporters. Three dynamics support this conclusion.
First, it is self-evident that ratification of the agreement has been slow, despite a friendly climate for international agreement formation. The pace of ratification may be explained by several inhibiting factors, including treaty congestion and lack of leadership. (10) More problematic is the possibility that the Watercourses Convention's non-binding status is due to a deliberate lack of support from states that originally voted in favor of the Watercourses Convention in the General Assembly seventeen years ago.
Second, despite the Watercourses Convention's distinction as the international community's framework freshwater treaty, other legal instruments have emerged in an attempt to fill the gap created by the Watercourses Convention's slow march towards entry into force. The 1992 United Nations Economic Commission for Europe (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (11) UNECE Water Convention) was amended in 2003 to allow accession by all UN member states. Meanwhile, the 2008 Draft Articles on the Law of Transboundary Aquifers (12) (Draft Articles) attempts to create its own legal regime for groundwater resources. Both instruments overlap and conflict with the Watercourses Convention in significant ways.
Third, the two foundations of the Watercourses Convention--(1) the right to an equitable use of water resources and (2) the obligation not to cause significant harm to other watercourse states--are inherently in tension with each other, and do not establish meaningful rules for states in conflict over water resources. The principles are considered the foundations of international water law in general, (13) and provide an impetus for agreement between states primed for cooperation. But the lack of clarity between the principle of equitable use and the principle of no significant harm does not contribute to agreement formation between states in protracted and complex conflicts over water resources, the resolutions of which are undoubtedly a goal of the Watercourses Convention. (14) Instead, these principles can be used to support incompatible positions between upstream and downstream states, taking negotiations further away from an agreement.
Nowhere are the Watercourses Convention's limitations more apparent than in the geopolitical asperity of the Nile River Basin. For centuries, the flow of water in the Nile River has been entirely appropriated or claimed by Egypt and, to a lesser extent, Sudan, due to colonial-era treaties for which justifications are most likely obsolete. But Egypt and Sudan do not merely assert their rights under these treaties; they reinforce those rights by invoking the principle of no significant harm's prohibition on adverse impacts to their allocations. Facing increasing water scarcity, meanwhile, upstream states are increasingly assertive of their rights to an equitable and reasonable utilization of the Nile River's water resources. Unable to resolve the inherent tensions between the two principles, the states have resorted to creating an entirely new legal principle--water security. The definition of water security is disputed and leaves the Nile River Basin without a cooperative management agreement.
There is, however, reason for optimism. With thirty-five member parties, the Watercourses Convention is in force and increasingly relevant. There is reason to believe that many states do not have substantive objections to the text of the Watercourses Convention, and are prepared to accede with the support of international political capital and momentum. Entry into force of the treaty may provide such an impetus. Even if it does not, attaining binding status confers upon the Watercourses Convention, and its principles, a degree of legitimacy that may have been eroding due to its perennial nonbinding status. Entry into force may also help stem the tide against the rise of competing legal instruments with overlapping mandates, while forcing states, courts, and scholars to weigh in on the equitable use/no significant harm debate. Increased attention may establish or reinforce a consensus interpretation capable of resolving disputes and fostering cooperation. Finally, while the Nile River Basin provides a disconcerting example of the limitations of international water law, there is evidence that the Watercourses Convention is already providing a framework for cooperation in regions where hydropolitics are not as divisive.
This Article provides an analysis of the Watercourses Convention at a crucial moment in the development of international water law-entry into force of the UN's framework international freshwater treaty. In Part I, a historical review of the development of international water law provides context for the Watercourses Convention's creation and entry into force, as well as the current state of international water law. In Part II, three limitations of the Watercourses Convention are explored in detail: (1) a troubling lack of support for, and pace of, entry into force; (2) competing legal instruments with overlapping mandates; and (3) inherent tensions between the foundational principles of equitable use and no significant harm. In Part III, a case study of the discord over water management in the Nile River Basin highlights the limitations of the Watercourses Convention. Part IV concludes the article by considering the implications of the Watercourses Convention's entry into force for international water law, the international community, and freshwater resources. This Article argues that while the Watercourses Convention creates a workable framework for negotiating regional agreements, entry into force will not be a panacea for the limitations of the Watercourses Convention. Further support will be needed to develop and reinforce the foundations of international water law.