2. Introduction
3.5 The principle of Equitable Utilization
3.5.2 The principle and the international rules
After significant efforts by the ILA and IIL from the mid-twentieth century, there was agreement among legal scholars on the principles of managing transboundary rivers in 1966. In the same year, the Helsinki Rules on the Uses of the Waters of International Rivers or Helsinki Rules were adopted by ILA.332 However, the ILA took twelve years to produce the Rules. Development of the Rules started in 1954 when the Association established the River Committee to work on states' rights and obligations regarding
328 UNEP Transboundary Waters Systems – Status and Trends: Crosscutting Analysis (Nairobi, Kenya, 2016) at 5.
329 Stephen C McCaffrey, Christina Leb and Riley T Denoon Research Handbook on International Water Law (Edward Elgar Publishing, 2019) at 1.
330 Alistair Rieu-Clarke “From treaty practice to the UN Watercourses Convention” in Research Handbook on International Water Law (Edward Elgar Publishing, 2019) at 11.
331 Salman, above n 15, at 5.
332 Salman, above n 13, at 629.
international rivers. Between 1954 and 1966, the Committee submitted six reports to the ILA. The committee produced four documents in the same period, but the essential document among them was the Helsinki Rules.333
Furthermore, the IIL had a considerable role in developing terms and principles related to transboundary waters. Before the Helsinki Rules, the IIL adopted three resolutions for managing these waters. These resolutions shaped the classic understanding of disputes related to transboundary rivers. The Madrid Declaration in 1911, the Salzburg Resolution in 1961, and the Athens Resolution on the Pollution of Rivers and Lakes and International Law in 1979 were developed and adopted by the IIL. These three resolutions had a significant impact on the formation of fundamental principles for using transboundary rivers.334 The Madrid Declaration is the earliest international rule that limits riparian sovereignty over shared water resources. According to the declaration, riparian states are in a “permanent physical dependence,” and they cannot utilise the river in a way that affects other states.335
The Salzburg Resolution also set guidelines and principles for sharing transboundary rivers without highlighting the equitable utilization principle. The resolution confirms limitations on the utilization of transboundary water by international law and the right of other riparian states.336 Importantly, the Athens Resolution mentioned both principles of equitable utilization and minimization of environmental harm in the international watercourses. It concentrated on the “common interest” of riparian states in using transboundary rivers and not causing harm to each other. This resolution is more advanced than previous resolutions because it reflects the rapid development of laws related to international watercourses theoretically and practically.337 Adopting all of these resolutions by the IIL created a common understanding of the principle. Still, the meaning of the equitable utilization principle was broad and not entirely clear until the adoption of the Helsinki Rules in 1966.
333 Slavko Bogdanović “The International Law Association Helsinki Rules: Contribution to International Water Law” (2019) 3(4) Brill Research Perspectives in International Water Law at 4.
334 McCaffrey, above n 142, at 83-85.
335 See International Regulation regarding the Use of International Watercourses for Purposes other than Navigation - Declaration of Madrid.
336 See Resolution on the Use of International Non-Maritime Waters- Resolution of Salzburg.
337 Flavia Rocha Loures and Alistair Rieu-Clarke above n 322, at 11.
The Helsinki Rules was a significant and pioneering attempt to comprehensively codify and regulate transboundary rivers and international river basins. The Rules did not just attempt to design legal solutions for transboundary water issues, but also discovered the vital role of underground water in future transboundary problems. For instance, the rules defined an international drainage basin as “a geographical area extending over two or more States determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus.”338 The Rules successfully link surface and underground water because governments usually dismiss this issue, 339 though the Rules do not provide details about transboundary groundwaters.
More importantly, the Rules advanced equitable utilization by illustrating the principle, and designing the factors and characteristics in determining the principle.340 The Rules have attempted to discover procedures for sharing transboundary rivers and providing a tool for avoiding future conflicts among riparian states. They were successful in making a reasonable balance between upstream and downstream countries; this made the Rules a base for the UN Watercourses Convention a few decades later.341
Article IV of the Rules explicitly mentions that all riparian states have a right to the equitable and reasonable use of the international drainage basin. Furthermore, article V illustrates all the factors which can be considered for determining the principle, which include:342
1. The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State;
2. The hydrology of the basin, including in particular the contribution of water by each basin State;
3. The climate affecting the basin;
4. The past utilization of the waters of the basin, including in particular
338 The Helsinki Rules on the uses of the waters of international rivers, Art 2.
339 Laurence Boisson de Chazournes and others The UN Convention on the Law of the Non-Navigational Uses of International Watercourses: A Commentary (Oxford Commentaries on Interna, 2019) at 83-84.
340 At 84.
341 McCaffrey, above n 142, at 87.
342 The Helsinki Rules on the uses of the waters of international rivers art V.
existing utilization;
5. The economic and social needs of each basin State;
6. The population dependent on the waters of the basin in each basin State;
7. The comparative costs of alternative means of satisfying the economic and social needs of each basin State;
8. The availability of other resources;
9. The avoidance of unnecessary waste in the utilization of waters of the basin;
10. The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and
11. The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State.
According to Article V, the principle of equitable utilization could be determined by the above factors. However, these factors may vary from case to case. For instance, a country’s development level is a significant indicator of determining the application of the principle and the factors. Developed states have better technical and financial capabilities compared to developing or less developed countries. Thus, developed states should show more reconciliation toward other countries in sharing transboundary rivers.343 These factors are broad and vary, and need a guideline or a tool for explanation. For instance, it is not clear which factors have more priority than others.
Thus, providing more detail on these factors may better illustrate the significance of the factors.
In a similar approach to the Helsinki Rules, the UN Watercourses Convention attempted to define the principle and determine it based on similar factors. However, the Convention did not satisfy the ILA, and they came back with new rules, namely the Berlin Rules in 2004. These Rules defined equitable utilization comprehensively and linked it with sustainability and integrated management.344 Significantly, the Berlin Rules linked water management principles at national and international levels and covered issues such as “the emergence of environmental concerns, integrated management, and sustainable development”, which were ignored in the UN
343 Alistair Rieu-Clarke International law and sustainable development (IWA Publishing, 2005) at 108.
344 International Law Association ILA, Berlin Rules on water resources arts 3 10 12 and 13.
Watercourses Convention.345 In addition to applying IEL principles to both surface and groundwater, the Rules introduced public participation in water management, which was not the focus of previous ILA and IIL work.346
3.5.3 The role of international courts and arbitrations in promoting the equitable