Republic of the Philippines

CAVITE STATE UNIVERSITY

Don Severino delas Alas Campus
Indang, Cavite

Convention on the Law of the

Non-navigational Uses of International
Watercourse. 1997

Group 7:

Mojica, Aaron S.

Mojica Mary Grace M.

Morales, Hadasah I.

Mostar, Sophia Eirene R.

Oncita, Jane O.
 Republic of the Philippines
CAVITE STATE UNIVERSITY
Don Severino delas Alas Campus
Indang, Cavite

TABLE OF CONTENTS

Introduction 2

THE 1997 Watercourse Convention 3

Conclusion 7

Recommendation 8

References 9

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 Republic of the Philippines
CAVITE STATE UNIVERSITY
Don Severino delas Alas Campus
Indang, Cavite

Introduction
One of the treaties made internationally between and among states adopted by the
United Nations on May 21, 1997, is the Convention on the Law Non-Navigational Uses of
International watercourse. This treaty pertains to the use as well as conservation of all the
waters which cross the boundaries internationally. As one of the International Organizations that
helps various countries in different facets, the UN drafted the document so that it can help
conserve and manage the water resources for present and future generations. As to its history,
the General Assembly adopted resolution 2669 entitled Progressive Development and
Codification of the Rules of International Law Relating to International Watercourses. With the
said document, the GA recommended that the International Law Commission take up the study
of the law of the non-navigational uses of international watercourses with a view to its
progressive development as well as codification. In fact, it was realized that the GA had shown
that it recognized the essence of such a field over ten years earlier, dated November 21, 1959
when it adopted resolution 1401.

Moreover, in 1974, pursuant to GA resolution 1970, the International Law Commission

began work on the international courses. Over the course of twenty years, the work was guided
with the succeeding five special rapporteurs named Richard Kearny, Stephen Schwebel, Jens
EVensen, Stephen McCaffrey and Robert Rosenstock. The Commission also circulated, in the
same year, the questionnaire to UN member states which aimed to seek various perspectives
on the issues at hand regarding the watercourses concern.

The Commission decided that it was not necessary to determine the scope of the
expression international watercourse at the outset of its work in 1976. The first reading of a full
set of draft articles about the topic in 1991; and in 1994, the Commission concluded its work
adopting a complete set of 33 draft articles on second reading. In the Sixth Committee, the
convention was negotiated for this purpose as a working group of the whole as it was worked
together as one by different states, as contemplated by the Assembly’s 1994 resolution. The
working group met for three weeks in October 1996 and two weeks in March and April of 1997.
As noted, the Convention on the Law Non-Navigational Uses of International Watercourse was
adopted by the United Nations on May 21, 1997.

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 Republic of the Philippines
CAVITE STATE UNIVERSITY
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Indang, Cavite

THE 1997 Watercourse Convention

The convention on the Law of Non-Navigational Uses of International Watercourses was
adopted by the United Nations General Assembly on May 21, 1997. It was negotiated at the
General Assembly’s Sixth (Legal) Committee, based on draft articles adopted by the
International law Commission (ILC) after over two decades of work on the subject. The ideas
embodied in the Convention will have no bearing on how existing agreements are interpreted.
The Convention is a general, framework agreement that contains 37 articles, which are divided
into seven parts. The most important and substantive and procedural provisions are contained
in Part II, General Principles, Part III Planned Measures, and Part IV, Protection, Preservation,
and Management. The Convention’s definition of the word “international watercourse” is a good
place to start. It’s natural to conceive this term as synonymous with “international river,” but it
has a far broader meaning in the Convention. The definition recognizes that the majority of
freshwater is found underground and that much of this groundwater is connected to or interacts
with surface water. Thus, for example, pollution of surface water can contaminate groundwater,
and vice versa, just as withdrawals of groundwater can affect surface water flows. Article 2,
therefore, defines “watercourse” as “a system of surface waters and groundwaters constituting
by virtue of their physical relationship a unitary whole. This term draws states’ attention to the
interdependence of all components of an international watercourse’s system of surface and
subsurface waters. As a result, it should be obvious right away that an effect on one element of
the system will almost always affect other sections. Nonetheless, the inclusion of groundwater in
the Convention was mentioned as a rationale for two states abstaining from voting on the
convention.

The relationship of the Convention to agreements concerning specific watercourses is

dealt with within Articles 3 and 4 of the Convention. Article 3 encourages states that share
watercourses to reach agreements that apply and adapt the Convention’s provisions to the
unique characteristics of the watercourse in question. While the convention has no effect on
previous agreements, partis are encouraged to “consider aligning” those agreements with its
basic principles”. As you can imagine, some delegations, such as Ethiopia’s, believed that
harmonization should have been required. But given the vast number and variety of existing
agreements, such a requirement would have been impractical. This does not mean, however,
that the principles embodied in the Convention will have no bearing on the interpretation of
existing accords. Article 3 also handles the circumstance where less than all of the states that
share a watercourse reach an agreement on its usage. In that instance, the agreement cannot
have an adverse effect on other states’ usage of the watercourse without their approval. Then
there’s the case where a riparian stat argues that the Convention’s principles should apply to the
watercourse it shares with another state or states. In this scenario, Article 3 mandates that the
states sharing the watercourse consult “with a view to negotiating in good faith for the purpose
of finalizing a watercourse agreement.” Article 4 deals with the rights of riparian states to
participate in specific agreements that apply to an entire international watercourse and those

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that apply “only to a part of the watercourse or to a particular project, program or use.” If an
agreement covers an entire international watercourse, all governments along the watercourse
have the right to participate in the negotiations and become parties to the agreement.

Part II, General Principles, is the core of the Convention. It is introduced by Article 5,
“Equitable and Reasonable Utilization and Participation.” This article lays out what many
consider to be the cornerstone of International watercourse law, namely, that a state must use
an international watercourse in a fair and reasonable manner in relation to other governments
sharing the watercourse, According to Article 5, the user must also be consistent with the proper
protection of the watercourse from pollution and other types of deterioration in order to be
equitable and reasonable. As a result, the equitable and reasonable utilization concept is far
better adapted to implementation through very close cooperation between the governments
concerned, ideally through a joint commission, or by a court or other third party. After all, the
theory arose from Supreme Court rulings involving water disputes between states in the United
States. Having said that, it becomes evident that no other general approach can effectively
account for the enormous range of conditions that may come into play in relation to
international watercourses throughout the world.

The most contentious clause in the Convention, Article 7, outlines the commitment not to
cause harm. Throughout the UN discussions, that article was treated as being inextricably
related to Articles 5 and 6, At first glance, it appears self-evident that one state should not injure
another state significantly, whether by the use of watercourse or otherwise. However, it is not
that straightforward in the case of international watercourses. Article 10, was intended to be a
measure that would protect. This article now has a much deeper texture, indicating that
navigational uses no longer have inherent priority over non-navigational ones, assuming they
ever did.

Part III of the Convention, Planned Measures, lays out a series of procedures to be
followed when a new activity in one country has the potential to have a considerable negative
impact on other countries sharing an international watercourse. The fact that most delegations
acknowledged the basic requirement to provide prior notification of such modifications as part of
the Convention is significant in and of itself. It adds to the body of evidence that the international
community as a whole rejects the notion that a state has unrestricted discretion over the portion
of an international watercourse that lies inside its borders.

The Conventions Fourth Part, titled “Preservation, Protection, and Environmental

Management”. Article 20 ecosystem protection and preservation is a basic but potentially
effective provision. It argues that riparian governments have a responsibility to “defend and
conserve transnational watercourse ecosystems.” Because international watercourses
“ecosystems'' include land areas adjacent to them, Article 10 demands that these land areas be
managed in such a way that the watercourses they border are protected.

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Part V is named “Harmful Conditions and Emergency Situations”, and it has one article
on each of those subjects. Waterborne infections, ice floes, siltation, and erosion are examples
of “harmful circumstances”. Riparian nations must take “all appropriate measures” to prevent or
alleviate such circumstances, according to Article 27. Meanwhile, Article 28 deals with
emergency situations. This term is defined broadly to include both natural phenomena such as
floods, and those that are caused by humans, such as chemical spills. A state within those
territories such an emergency originates must notify other potentially affected states as well as
competent international organizations.

Articles 29 to 33 are included in Part VI, Miscellaneous Provisions. Article 29, which
deals with armed conflict, serves as a reminder that international watercourses and related
infrastructure, facilities and other works are protected by international law during conflicts. When
there are severe difficulties to direct communications between riparian governments, such as
when they do not have diplomatic relations, Article 30 allows them to use indirect processes to
fulfill their commitments of cooperation under the Convention with one another. Article 31 simply
protects information that is “essential to national defense or security.” Article 32 is primarily
concerned with private remedies. Its goal was to ensure equal access and nondiscrimination so
that an aggrieved or threatened party could access judicial or administrative proceedings in the
state of origin, regardless of whether that state was on the other side of a border ith another
country. Article 33 on dispute settlement was also a source of contention, primarily because it
mandates fact-finding at the request of any party to a dispute. Any mandatory dispute-resolution
mechanism is sure to elicit fierce opposition.

Analysis
As mentioned, the 1997 United Nations Convention on the Law of Non-Navigational
Uses of International Watercourses is the only universally applicable convention controlling
shared freshwater resources. It is a framework convention in the sense that it establishes a set
of principles and norms that may be implemented and tweaked to suit the needs of specific
international waterways. The convention was an extension to the United Nations General
Assembly Resolution 51 (229). The UNWC garnered 106 affirmative votes, three negative
votes, and 22 abstentions. After 17 years of work, the treaty on the law of non-navigational uses
of water intercourses became effective in August 2014. The convention is composed of 37
articles and divided into 7 parts namely, Introduction; General principles; Planned measures;
Protection, preservation and management; Harmful conditions and emergency situations;
Miscellaneous provisions; and the Final clauses. In the event that States agree to submit a
dispute to arbitration, an annex to the Convention lays out the processes to be followed.

Parts I, II, III, IV, of the Convention contain the important provisions. Article 2 defines
"international watercourse" as "a system of surface waterways and groundwaters." Article 5

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(Obligation not to cause major harm) compels states to "take all appropriate steps to prevent the
causing of considerable harm" to other countries sharing a watercourse. If a State considers it
has suffered considerable harm as a result of a co-riparian State's usage of a watercourse, it will
bring the matter to the attention of the second State. It is not ruled out that the solution may
include compensation in order to create an equal balance of uses and benefits. The notion of
previous notification of proposed measures is laid forth in Part III of the Convention on the
Conservation of International Watercourses (CCIW). If a state plans a project or other measures
that could have a major negative impact on another state or states sharing an international
watercourse, the state must provide timely warning. If the informed States feel the proposed
measures would be in violation of articles 5 or 7, a process of discussions and, if necessary,
talks will be initiated. Part IV of the Convention deals with international watercourse
conservation, preservation, and management. It includes regulations for the conservation and
preservation of watercourse ecosystems, pollution prevention, reduction, and control, and
consultations on international watercourse management, among other things. The significance
of these regulations is arguably self-evident: if watercourse ecosystems and watercourses are
to support human and other kinds of life, they must be protected, preserved, and appropriately
managed.

Again, the 1997 convention is the extension of the 1992 Watercourse Convention, so
how do the two of them correlate with each other? The two Conventions are completely
compatible and do not contradict one another. Both Conventions can have a country as a Party.
The Watercourses Convention of 1997 is a follow-up to the 1992 Water Convention. As stated in
Part III of the 1997 Watercourse Convention, the Convention provides recommendations on
water quality objectives and best available technology. The 1992 Convention specifies the text
of specific agreements as well as the roles and responsibilities of joint organizations (Art. 9 of
the 1992 water consultation). The 1992 Water Convention requires Riparian Parties to reach
agreements and establish joint bodies for their shared waterways, whereas the 1997
Watercourses Convention only advises watercourse States to reach particular agreements and
collaborate through joint institutions. The 1992 Convention also includes a requirement to
amend existing watercourse agreements in accordance with the Convention's core principles,
whereas the 1997 agreement does not. It covers all transboundary groundwater, including
confined aquifers, which the 1997 treaty did not cover. But despite these differences it will not
hinder the implementation of one another. The differences between the Conventions might thus
be addressed through interpretation in order to improve and deepen both instruments'
application. Furthermore, being a party to both Conventions helps a country to take advantage
of their strong legal systems while also advancing growth and application of international water
law by reaffirming the importance of such law on a global scale.

Despite the support it gained from the UN it took 17 years for it to enter the force. The
management of all freshwater resources has been hailed as the most promising way to address
the current global water issue. There are 263 trans - border river basins in the world, shared by

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145 countries and covering more than half of the Earth's geographical surface. Several
international policy texts have recognized the need for better governance by governments. The
need for a worldwide instrument to promote and develop international law in this area appears
to be both necessary and vital. One of the problems why the convention took a while for it to
enter the force is because of its lack of awareness. The UN Watercourses Convention has failed
to enter into force, possibly due to "treaty congestion" and a lack of a sponsor. This would be
sad, because the Convention might help with the implementation of other MEAs in many ways.
The Convention, for example, expressly supports Article 4 of the Climate Change Convention,
which requires governments to prepare for climate change impacts. (Rieu, 2007)

Conclusion
The United Nations Convention on the Law of the Non-Navigational Uses of International
Watercourses (UNWC) entered into force on August 17, 2014, after seventeen years of its
adoption by the UN General Assembly in 1997. It is a framework convention on international
watercourses in the sense that it creates a strong framework for water governance
arrangements and a basic common ground that enhances predictability and encourages
reciprocity. The UNWC was established in response to the recognition that a global legal
instrument was necessary to strengthen the cooperation among governments over their shared
water resources and minimize the chances of war. More so, it is noteworthy that the UNWC was
designed to be a global convention whose function was to assist other watercourse treaties by
acting as a template and bridging gaps in scope. The primary objective of the Convention is to
ensure the utilization, development, conservation, management, and protection of international
watercourses and the promotion of optimal and sustainable utilization. As a framework
convention, it addresses some procedural aspects (equitable and reasonable utilization and
participation, obligation to not cause significant harm, and protection of ecosystems) and a few
substantive ones (exchanging of data and information, emergency and harmful situations, and
planned measures).

Despite the UNWC's significance in codifying and establishing transboundary water law
principles, not to mention the milestone it marked in the creation of IWL, it had taken so long for
the convention to enter into force. Although it is clear that UNWC is an important convention,
none of the South Asia countries have ratified it. The range of reasons for this occurrence is i.)
treaty congestion at the time of its adoption, ii.) lack of awareness of the relevance and content
of the convention and iii.) several highly vocal but not necessarily widely representative
opponents who claim that there is no need for a global legal instrument. One of the reasons the
Convention eventually received the required number of ratifications was the persistent and
ultimately successful advocacy by governmental and non-governmental actors to overcome the
obstacles and setbacks encountered during the ratification process of the UNWC. The UNWC’s
entry into force means that its innovative dispute settlement mechanism becomes operational.
Most notably, Article 33, when combined with the UNWC’s procedural provisions on

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Indang, Cavite

cooperation, offers a comprehensive and integrated toolbox for the prevention, management,
and settlement of water disputes (Tanzi & Milano). In summation, the United Nations
Watercourses Convention (UNWC) is a broad legal agreement that regulates international
watercourse usage, management, and protection between states. Its provisions highlight that
watercourse ecosystems and watercourses themselves shall be protected, preserved, and
properly managed if they are to support humans and other forms of life. Watercourse States
shall in their respective territories utilize an international watercourse equitably and reasonably.
In particular, an international watercourse shall be used and developed by watercourse States
to attain optimal and sustainable utilization and benefits, taking into account the interests of the
watercourse States concerned consistent with adequate protection of the watercourse.

Recommendation
Upon reading several articles about the convention on the Law of the non-navigational
uses of international watercourses, we as the researchers come up with few ideas regarding the
level of punishment states will face if failed to follow the terms and conditions for safe usage and
preservation of the watercourses shared by neighboring states. It will be more effective to
strengthen the treaty and the agreement between countries, especially the developed ones
since they have a big part of using the watercourses. It is important to encourage states who did
not support the convention to join and be part of the agreement since they are using the
groundwater joint with its neighboring state. Furthermore, the imbalance of responsibilities and
duties of the principles indicated in the convention for the upstream and downstream states is
also seen as a criticism in the convention. There are articles showing the lens of a state
regarding the treaty, one which is the view of China on the principles of the convention.
Specifically, the principle of equitable and reasonable uses (article 6 and 7) and the principle of
the duty not to cause significant harm. It is concerned with the value of reciprocity in which the
right of one will be the duty of others, however there is an imbalance between the duties of
upstream and downstream states. In fact, riparian states in an international watercourse have a
right for prior notification, consultation and negotiation if the proposal of other parties can cause
serious damage to the interests of the first country. During the agreement process of 1997 UN
watercourses, 3 of many upstream countries objected to the principle: Ethiopia, Rwanda and
Turkey (Birnie and Boyle, 2002) but to this day most upstream countries objected to the idea of
this principle. One of the examples of this case is the Gabcikovo-nagymaros case, this case
demonstrates how an international watercourse is controlled in part by equitable usage
constraints, in part by developing environmental duties, and in part by sustainable development
concerns. To summarize, it presented the controversy of Hungary and Czechoslovakia over a
bilateral treaty on the Danube river. The dispute occurred when Hungary suspended the work
on its portion and in return, Slovakia implemented a variant C that decreased the flow of
Danube river downstream in Hungary. Both countries had witnessed significant political
transformations. Hungary judged that the project was harmful to the environment and attempted
to stop and annul the 1977 Treaty unilaterally. Czechoslovakia/Slovakia, on the other hand,

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contended that the project was environmentally sound, and that if any environmental difficulties
arose, the 1977 pact could effectively resolve them. In the end, when the case was deliberated,
it was proved that both countries had created a wrongful act and both are obligated to pay the
compensation. Despite not being in force, the watercourses convention is improving the modern
evolution of international policy, as evidenced by this case (cf. Stec and Eckstein, 1997, p.45;
Eckstein, 2002; Khalid, 2004). Meanwhile, according to UNEP(2002) lack of specificity, effective
dispute resolution processes and a legal and institutional framework along with the guidelines
for cooperative management have become the huge challenges for attaining efficient
management of watercourses. In this case, we sincerely recommend to reiterate and
recondition some of the principles that can be utilized to effectively deal with transnational water
courses and perhaps promote sustainable development.

References

Caflisch, (n.d) CHAPTER 2 The UN Convention on the Law of the Non-Navigational Uses of

International Watercourses: Prospects and Pitfalls. UNECE.

https://unece.org/fileadmin/DAM/env/water/cwc/legal/UNConvention_McCaffrey.pdf

Devlaeminck, David (2017). Revisiting the substantive rules of the law of international
watercourses: an

analysis through the lens of reciprocity and the interests of China. Water Policy, (),
wp2017069–.

doi:10.2166/wp.2017.069

Litke, A., & Dr. Rieu-Clarke, A. (2015, February 2). The UN Watercourses Convention: A

milestone in the history of international water law. Global Water Forum.

https://globalwaterforum.org/2015/02/02/the-un-watercourses-convention-a-milestone-in-

the-history-of-international-water-law/

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McCaffrey, S. C., & Omiste, C. (n.d). Convention on the Law of the Non-Navigational Uses of

International Watercourses - Main Page. Office of Legal Affairs.

https://legal.un.org/avl/ha/clnuiw/clnuiw.html

Principles of international water law: creating effective transboundary water resources

management Muhammad Mizanur Rahaman. (n.d.). International Water Law Project.

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https://www.internationalwaterlaw.org/bibliography/articles/general/Rahaman-2009_IWL.

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water resources management Muhammad Mizanur Rahaman. International Water Law

Project.

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Rieu, A. (2007). Entry into force of the 1997 UN Watercourses Convention: barriers, benefits

and prospects. Academia.edu.

https://www.academia.edu/466602/Entry_into_force_of_the_1997_UN_Watercourses_C

onvention_barriers_benefits_and_prospects

Taylor & Francis. (2013). Water International. 0, 38(2), 0.

https://www.tandfonline.com/toc/rwin20/38/2#.U7i_9C8lG_k

Water Governance Project (Director). (2018). Convention on the Law of the Non Navigational

Uses of International Water courses [Film]. YouTube.

https://www.youtube.com/watch?v=5Na-jdQa20I

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Brochure "The global opening of the 1992 Water Convention". (2016, October 13). UNECE.

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