2. Introduction
3.5 The principle of Equitable Utilization
3.5.4 The principle and international conventions
Therefore, equitable utilization has a broad meaning under customary international law, and it cannot be limited to sharing a certain amount of water. Environmental and social conditions of the transboundary river basin should be considered in applying the principle. Moreover, the equitable use principle and minimization of environmental harm are two main principles of international law that cannot be separated in sharing transboundary river basins. As illustrated by the cases cited above, these principles have a long list of applications in both international and customary international law.
ILC started work on the task in 1971 and submitted the final draft to the UN General Assembly in 1994.358 After three years of negotiations among the UN members, the organization adopted the draft in May 1997. However, the Convention only entered into force in August 2014.359
One of the significant points of the Convention is the rejection of any notion of sovereignty in absolute form over transboundary rivers. Even though the ILC attempted to mention sovereignty during the drafting process, this was not adopted in the final draft because shared rivers cannot be restricted by sovereign borders under international law.360 Article 5 of the convention explains the meaning of the principle of equitable utilization. The article puts states in a position to share their resources in an “equitable and reasonable” manner.361 It means that international watercourses should be used and advanced to achieve the needs of states and protect these resources at the same time.
Thus, the utilization and sustainability of these resources should be paralleled.362 Article 6 of the Convention identifies the factors for assessing the principle of equitable utilization:363
(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;
(b) The social and economic needs of the watercourse states concerned;
(c) The population dependent on the watercourse in each watercourse state;
(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse states;
(e) Existing and potential uses of the watercourse;
(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;
(g) The availability of alternatives, of comparable value, to a particular planned or existing use.
358 Salman, above n 15, at 3.
359 McCaffrey, above n 142, at 437.
360 McCaffrey, above n 142.
361 Convention on the Law of the Non-navigational Uses of International Watercourses art 5(1).
362 At art 5(1).
363 At art 6.
The factors mentioned in this article are similar to or taken from article V of the Helsinki Rules. This confirms the considerable role of international rules in developing and advancing norms and principles of international law. According to article 6 of the Convention, all of these factors could be considered in implementing the principle. It is understood from this article that equitable utilization does not mean the equal right of sharing transboundary water resources, but instead refers to sharing them equitably. For instance, some countries may depend on a river basin considerably or have a larger population than other countries. Thus, they may require more water than another riparian state.
These factors can be determined case by case because each river basin has its own characteristic. If there is an agreement among riparian states in a basin, or states are member parties of the Convention, determining these factors and applying the equitable utilization principle is not complicated. However, the Convention will not present a significant solution, especially for river basins lacking a comprehensive agreement among riparian states. The Convention seems to be ineffective globally as most states have not yet joined it. Therefore, applying the principles is still questionable, particularly for countries that have yet to adopt the convention. It would only apply if its reflects existing customs.364
After more than twenty-four years of adopting the Convention, the UN has failed to transform it into an influential and global instrument. There are several factors behind this failure. Firstly, the Convention lacks any institutional body for monitoring or implementing the Convention effectively. Even though UN-Water exists as an international agency inside the United Nations to coordinate water resources, river basins management and regulation have been left for riparian states according to articles 24 and 25 of the convention.365 Secondly, the Convention's scope is narrow because only ratified and signatory members are technically bound to the Convention.366
For instance, after more than two decades, only 36 countries are member parties, and
364 Yonatan Lupu “International Law and the Waters of the Euphrates and Tigris” (2001) 14 Geo. Int'l Envtl. L.
Rev. at 362.
365 Convention on the Law of the Non-navigational Uses of International Watercourses art 24 and 25.
366 Giordano and Wolf, above n 85, at 168.
another sixteen countries are signatory members of the Convention.367 Notably, major powers such as the US, Russia, and China are not Convention parties. Arguably this was not expected to be the case because the convention's drafting, adoption, and enforcement were prolonged.368
Another issue for the convention is the mechanism and effectiveness of the dispute settlement process. According to article 33 of the convention, if there was an issue regarding interpreting or applying the Convention, the parties should use a peaceful mechanism, such as establishing good offices through negotiation, conciliation, or mediation by a third party. They can also establish basin institutions jointly. If they cannot reach an agreement by these mechanisms, they can take the issue to arbitration or the ICJ.369 If negotiation among parties failed, a fact-finding commission is recommended by the Convention which states that:370
A Fact-finding Commission shall be established, composed of one member nominated by each party concerned and in addition a member not having the nationality of any of the parties concerned chosen by the nominated members who shall serve as Chairman.
However, except for the negotiation and fact-finding commission, all of these mechanisms are optional and not compulsory. These two mechanisms are also viewed as weak solutions because their outcome is not binding.371 In addition, the Convention is criticized for repeating previous norms and principles that were accepted prior to the Convention. It is believed that the Convention did not present any fundamental new mechanisms for solving the transboundary issues.372 Finally, most of the Convention articles were criticized for ambiguity and providing a minimal guidelines for the riparian states. This critique is not new and was raised by the drafting community since discussing the first draft of the convention. Thus, it is not easy to implement many
367 UN United Nations “Treaty collection: Convention on the Law of the Non-Navigational Uses of International Watercourses” (2021) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-
12&chapter=27&clang=_en>.
368 See Gabriel Eckstein “The status of the UN Watercourses Convention: does it still hold water?” (2020) International Journal of Water Resources Development.
369 Convention on the Law of the Non-navigational Uses of International Watercourses art 33.
370 At art 33(4).
371 Ruth Lapidoth “Dispute Settlement under the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses” (2015) 75 International Studies at 242.
372 Biswas, above n 174, at 15.
convention articles because they are broad and general with vague requirements.373 Among these articles of the Convention, those related to the equitable utilisation principle are general and require riparian states to consider all relevant factors. As there is not a meeting of the parties for the Convention, this generality needs clear instructions and guidelines for future development. Therefore, member parties of the Convention should take advantage of the UNECE Water Convention by convening a meeting the parties periodically.
(b) The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention)
The UN created the UN Economic Commission for Europe (UNECE) in 1947. The establishment of the UNECE was part of the five regional commissions for developing economic and social conditions in the world. At the beginning, the UNECE worked on issues related to hydroelectric power and water pollution. The organization expanded its framework to cover all aspects of water management, including transboundary issues, groundwater and water quality in the 1970s and 1980s. After several conferences and recommendations, the UNECE succeeded in creating a mutual understanding of transboundary issues and adopted the UNECE Water Convention in 1992.374 By mid- September 1994, twenty-seven states had signed the Convention and fourteen among them had ratified the Convention.375
The Convention refers to the principle of equitable utilization, but it does not provide details about it. By virtue of Article 2.1(c) of the Convention, member parties are obliged:376
To ensure that transboundary waters are used in a reasonable and equitable way, taking into particular account their transboundary character, in the case of activities which cause or are likely to cause
373 See John Waterbury “Between unilateralism and comprehensive accords: Modest steps toward cooperation in international river basins” (1997) 13(3) International Journal of Water Resources Development.
374 Attila Tanzi and others The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes: Its Contribution to International Water Cooperation (Hotei Publishing, 2015) at 3-5.
375 Graham Bennett Guidelines on the application of existing international instruments in developing the Pan- European Ecological Network (Council of Europe, 2002) at 52.
376 Convention on the Protection and Use of Transboundary Watercourses and International Lakes art 2.1(c).
transboundary impact;
This is a very shallow interpretation of the principle because the Convention does not assign the nature of these “transboundary characters.” Nor does it explain the meaning of equitable and reasonable use of the transboundary waters. The community that drafted the Convention may have been satisfied with the details provided in the Helsinki Rules 1966 regarding the principle. Thus, they did not want to repeat details about the principle and the factors that determine equitable utilization. However, this is not a good reason for omitting these matters from the Convention because the Helsinki Rules are not binding under international law.
Despite that, the UNECE Water Convention and the UN Watercourses Convention are considered the most critical global and legal documents for management and creating an environment for cooperation on transboundary water issues.377 Both conventions deal with the same subject, but the UNECE Water Convention may be considered a more effective and practicable legal document than the UN Watercourses Convention in several areas. Firstly, the scope of the UNECE Water Convention 1992 is broader than the UN Watercourses Convention 1997. According to the UNECE Water Convention, transboundary waters include “any surface or ground waters which mark, cross or are located on boundaries between two or more States.”378 This broad scope of the UNECE Water Convention can cover all kinds of water resources, including fossil waters or non-charging aquifers.379 It means that the convention covers transboundary aquifers shared by two or more countries.
Secondly, monitoring the implementation articles of the UNECE Water Convention is worthy of mention. According to article 17 of the Convention, the parties should meet regularly and report on the convention's implementation every three years. The Convention urged the parties to conduct the first meeting less than a year after the Convention entered into force.380 This is known as the Meeting Of the Parties (MOP) of the convention. However, this effective mechanism does not exist in the UN
377 Baranyai, above n 133.
378 Convention on the Protection and Use of Transboundary Watercourses and International Lakes art 1.1.
379 See Stephen C McCaffrey “UN Watercourses Convention Implementation and Relationship to the UNECE Water Convention” (2016) 46(1) Environmental Policy and Law.
380 Convention on the Protection and Use of Transboundary Watercourses and International Lakes art 17.
Watercourses Convention. Adding this mechanism could contribute significantly to the effectiveness and implementation of the UN Watercourses Convention.
The eighth MOP was held in Kazakhstan in 2018. The success of this MOP and other MOPs has attracted many countries outside Europe to join the UNECE Water Convention. About 88 parties and non-parties participated in the MOP8. Among all the participants, fifteen countries outside of Europe showed their interest in being Convention members.381 The ninth and most recent MOP in 2021 was one of the most extensive meetings with the participation of more than 100 countries and 500 participants including Turkey, Iraq, Iran and Syria. This significant step occurred after amending articles 25 and 26 to allow other parties outside of Europe to be Convention members. Prior to this amendment, the Convention was designed to only cover the transboundary issues inside Europe. Thus, the Convention transferred from a regional agreement to a global tool with an effective mechanism for transboundary river governance.382
For instance, Jordan, Iraq, Tunisia and several other countries are interested in joining the Convention.383 Meanwhile, Guinea-Bissau and Togo are the two African countries that recently joined the Convention. Therefore, the scope of the UNECE Water Convention is growing wider compared to the UN Watercourses Convention. Currently, forty-six members are party to the UNECE Water Convention, and twenty-six of them are signatories.384 The UN Watercourses Convention has thirty-six members and sixteen signatory parties. Palestine was the last member that joined the convention in January 2015.385 Surprisingly, no states have joined or signed the Convention since that time. Therefore, it would be better for the UN to take a practical step to motivate more countries to join the UN Watercourses Convention. Without accepting the convention
381 The UNECE “Eighth session of the Meeting of the Parties to the Water Convention” (2020)
<https://www.unece.org/env/water/MOP8/>.
382 Iulia Trombitcaia and Sonja Koeppel “From a regional towards a global instrument–the 2003 amendment to the UNECE water convention” in The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Brill Nijhoff, 2015) at 15-31.
383 See Raya Marina Stephan “International water law for transboundary aquifers–a global perspective” (2019) 4(2) Central Asian Journal of Water Research (CAJWR) Центральноазиатский журнал исследований водных ресурсов.
384 The United Nations (UN) “Treaty collection, Convention on the Protection and Use of Transboundary Watercourses and International Lakes” (2021)
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&clang=_en>
385 United Nations, above n 367.
by a majority of UN members, the Convention would not be effective. However, the UN can take advantage of the UNECE Water Convention by adopting MOPs and creating a mutual understanding of transboundary water management principles, including equitable utilization.