Group 4: Critically analyse how international law reconciles competing claims over transboundary freshwaters
1. Why reconciling disputes over international Watercourses is important This paper will examine how international law reconciles competing claims over transboundary freshwaters, focusing on the 1997 UN Watercourse Convention.
A pressing issue for the next generations to come will be the management of the worlds limited freshwater resources. A huge number of these freshwater resources are found in transboundary rivers and lakes. That is why the rules that allocate these resources and settle disputes over them are of the utmost importance.
The availability of freshwater has decreased because of different factors such as environmental degradation and overexploitation, increasing agricultural and industrial demand and population growth. About 2.3 billion people live in river basins that are under water stress today and approx. 1.7 billion people suffer from water shortage. By 2025 2.4 billion people will suffer from severe water distress. This means that half of the world’s population will not have enough freshwater or will not have access to freshwater.
To understand the importance of international rules allocating freshwater resources and the cooperation of states over transboundary water sources, one must consider that there are more than 260 international river basins which are shared by more than 144 countries and an great number of international aquifers (underground layer of water -bearing permeable rock or unconsolidated materials from which ground water can be extracted).
Failure to reconcile competing claims over transboundary freshwaters between two or more states may lead to serious economic, social and environmental problems, the most basic one being people not having enough water to drink.
2. International water law and it’s principles
What is the existing legal framework that governs transboundary fresh water resources? Two sources provide means used by States to resolve international disputes over water.
First off the UN Charter requires its member states to resolve their disputes peacefully, including their disputes over water. This means for example through negotiations, mediation or arbitration.
The only universal instrument which establishes a general legal framework for States regarding their activities involving transboundary watercourses is the Convention on the Law of Non-Navigational Uses of International Watercourses (1997 UN Watercourse Convention). The primary substantive principle in international water law is the rule of “reasonable and equitable utilization”, which has been embedded in the 1997 UN Watercourse Convention but is also a rule of customary international law. 3.1. Convention on the Law of Non-Navigational Uses of International Watercourses The 1997 UN Watercourse Convention is a framework convention that pertains to the uses and conservation of all waters that cross international boundaries, including groundwater. The prime focus of the Convention and international law governing transboundary fresh water is to provide a framework in which competing claims can be reconciled. The Convention has yet to enter into force, but as its principles of “reasonable and equitable utilisation”, the obligation not to cause significant harm and the principle of prior notification of planned measures are rules of customary international law, this binds the states to the three principles regardless of its ratification.
What is the principle of “reasonable and equitable utilisation” and what other principles are in the Convention? The principle of “reasonable and equitable utilization” requires that a State sharing an international watercourse with another State utilizes the watercourse in its territory in a way that is equitable and reasonable towards the other States sharing it. To define whether the utilization of an international watercourse is...
References: Wouters Patricia “The Role of International Water Law in Promoting Sustainable Development”, 12 Water Law (2001)281-283 (with A. Rieu-Clarke), (cit. Wouters 2001).
Beyerlin Ulrich International Environmental Law, 2011, (cit. Beyerlin/Marauhn).
[ 7 ]. 1997 UN Watercourse Convention, Article 5.
[ 9 ]. 1997 UN Watercourse Convention, Article 6.
[ 10 ]. 1997 UN Watercourse Convention, Article 7.
[ 12 ]. 1997 UN Watercourse Convention, Article 12.
[ 13 ]. 1997 UN Watercourse Convention, Article 33.
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