Evolution of the UN Watercourses Convention

In 1959 Bolivia proposed to the UN General Assembly, that the UN Secretary-General examine the legal problems relating to the utilization and use of international rivers (UN Resolution 1401(XIV). Following a report by the UN Secretary-General in 1963, the UN General Assembly recommended that the ILC, ‘take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification’ UN Resolution 2669(XXV). Following 20 years work, and 15 reports by eminent international jurists, acting as Special Rapporteurs, the Draft Articles on the Law of the Non-navigational Uses of International Watercourses (1994 ILC Draft Articles) were adopted. Upon receipt of the 1994 ILC Draft Articles, the UN General Assembly took the decision to, convene a working group to negotiate a Convention on the basis of the draft articles. The working group met on two occasions in 1996 and 1997, prior to the UN Watercourses Convention being adopted on 21st May 1997 by 103 votes in favour, 26 abstentions, and 3 votes against.

It is also important to recognise the role of two other non-governmental expert bodies, the International Law Association (ILA), and the Institute of International Law (IIL) in the evolution of international water law. The IIL’s work constituted the first attempt by an independent expert group to codify rules relating to international freshwaters at the global level. This work resulted in the Salzburg Resolution of 1961, which recognised the concept of limited territory sovereignty over international freshwater.14 The early work by the ILA culminated in the Helsinki Rules on the Uses of the Waters of International Rivers in 1966.15 The Helsinki Rules played an important role in shaping subsequent treaty practice, particularly in Africa, and many of the rules and principles found in the Helsinki Rules are reflected in the later UN Watercourses Convention. In addition to the Helsinki Rules, the ILA has examined treaty practice in a number of sub-areas of the law relating to international freshwater.16 More recently, the ILA has sought to develop their work on the codification and progressive development of international water law through the 2004 Berlin Rules on Water Resources.17 However, the degree to which the latter instrument accurately reflects customary international law is hotly debated.18

Finally, the most significant recent development in international water law has been the work of the ILC on the law of transboundary aquifers.19 In 2009 the ILC presented draft articles on the law of transboundary aquifers to the UN General Assembly, with the suggestion that they, ‘recommend to States concerned to make appropriate bilateral or regional arrangements for the proper management of their transboundary aquifers on the basis of the principles enunciated in the articles’ and ‘consider, at a later stage, and in view of the importance of the topic, the elaboration of a convention on the basis of the draft articles.’ 20

14 S Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: perspectives on international water law’, (2007) 23(4) Water Resources Development 625-640.
15 The Helsinki Rules on the Uses of Waters of International Rivers, in S Bogdanović, International law of water resources (Kluwer Law International 2001) at 147—387.
16 See S Bogdanović, International Law of Water Resources, 147—387.
17 Berlin Rules on Water Resources, in Report of the Seventy-first Conference of the International Law Association 2004.
18 ILA Berlin Conference 2004 – Water Resources Committee Report Dissenting Opinion, 9 August 2004. See also Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: perspectives on international water law’.
19 An ‘aquifer’ is defined within the Draft Articles as being ‘a permeable water bearing geological formation underlain by a less permeable layer and the water contained in the saturated zone of the formation.’ See generally, C Yamada, ‘Codification of the Law of Transboundary Aquifers (Groundwater) by the United Nations’, (2011) 36(5) Water International 557-565.
20 The law of transboundary aquifers, UN General Assembly Resolution 63/124.

Figure B.9 - UN Watercourses Convention Voting Records Figure B.9 UN Watercourses Convention Voting Records
Figure B.10 - UN General Assembly Vote and Status of Convention (Source Authors) Figure B.10 UN General Assembly Vote and Status of Convention (Source Authors)
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