Sharing Blue Gold: The 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses Ten Years on

Abstract

This article discusses the relation between two key principles in the law of the non-navigational uses of international watercourses in light of the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses, namely the equitable and reasonable utilization of international watercourses and the no-harm rule. The paper investigates whether the Convention provides a clear definition of the contours, scope, and content of these two principles and the dynamic relation between them.

It is argued that the Convention clearly favors the principle of the equitable and reasonable utilization of international watercourses in the settlement of international disputes. However, it is also argued that the formula adopted in the Convention, whereby states are allowed to tolerate significant harm to their interests to achieve equitable apportionment, is not reflective of customary international law.

Instead, an alternative approach to the relation between the two principles has been advocated, predicated on the fact that both principles stand on equal footing. This approach provides a practical series of tests that States demanding an alteration of existing patterns of exploiting international watercourses must satisfy before such alterations are allowed. This approach also incorporates sufficient flexibility to allow for its application to the differing situations prevalent in different watercourse systems. Also, this methodology provides the requisite protection to existing uses of international watercourses that allow states to dedicate the usually large investments in water systems without fear that such investments will be readily disturbed in the future.

Keywords: Riparian Law, environmental law, international law