FAO Training Manual for
International Watercourses/River Basins including
Law, Negotiation, Conflict Resolution and
Simulation Training Exercises
Prepared for FAO by Richard Kyle Paisley
University of British Columbia, Vancouver, Canada V6T 1Z2
rpaisley@interchange.ubc.ca

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Preface
Introduction and Objectives of the Training Manual
The project which led to the development of this training manual grew out of discussions with
Stefano Burchi, Director of the Food and Agriculture Organization of the United Nations (FAO)
Legal Development Division at FAO in Rome, and his colleague Kerstin Mechlem at an FAO Nile
Basin Initiative training session in Bujumbura, Burundi in the Spring of 2006.
Those discussions centered around two observations. The first observation was regarding the
paucity of accessible international training materials succinctly integrating negotiation skills with
international water law training. The second observation was that there appeared to be a niche for
a more "learner centered" training approach to international waters focusing on analysis of experience
and encouraging attendees to become increasingly self directed and more responsible for their
own learning. Under such an approach, first hand and vicarious experiences, dialogue among
learners as well as between instructors and learners, and analysis and interpretation become the
focus of instruction.
This training manual responds to those observations and aims to provide the reader with practical
and "learner-centered" training materials on international water law issues. The materials focus on
international water law and policy education as well as on negotiation training. It is intended to
train both experienced negotiators on the intricacies of negotiating international watercourses as
well as inexperienced negotiators on developing effective negotiation skills and techniques. Further,
this manual is aimed at informing both professionals and interested parties to aid in international
negotiation and conflict resolution concerning international watercourses.
The manual begins with an introductory chapter entitled "Setting the Scene". The subsequent chapter
includes materials on the hydrological cycle and international watercourses. Chapter 3 focuses on the
legal aspects surrounding international watercourses. It is followed by a chapter entitled "Negotiation
and Conflict Resolution". Finally, Chapter 5 provides a series of custom designed simulation training
exercises. These exercises are based on simulation training exercises that the authors have had the
privilege of testing in a number of international drainage basins throughout the world including the
Nile River Basin, the Mekong River Basin, the Syr Darya and Amu Darya River Basins, the Columbia
River Basin and international drainage basins in South America, Mexico/US and Nepal. The sixth and
final chapter concludes with some parting remarks on being part of international negotiations and
hopes for negotiating practice. Appendices contain copies of the key international documents referred
to in the text.
This training manual is written in such a way that these materials can be sent to participants before
the course as preparatory reading. There is also a Teaching Package for the use of instructors which
accompanies this training manual.
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Disclaimer
DIsclaIMer
The materials in this training manual, including all of the simulation exercises, are entirely made
up for teaching purposes only. Any resemblance between these simulation exercises and any real
situations or real persons, living or dead, is purely coincidental.
This training manual does not necessarily represent the views of FAO or any other international
entity or organization with which the authors are or may previously have been associated including
without limiting the generality of the foregoing the World Bank, the United Nations Development
Programme, the Global Environment Facility, the Mekong River Commission, the Canadian
International Development Agency and/or the Canadian Department of Foreign Affairs.
After initial publication by FAO this document may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise without the permission in writing of the copyright holder provided acknowledgement
is made.
This draft training manual is a "work in progress". Comments, criticisms and experiences using this
manual are strongly encouraged by emailing Richard Kyle Paisley, University of British Columbia,
Vancouver, Canada at: rpaisley@interchange.ubc.ca
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acknowledgements
acknOwleDgeMenTs
The materials in this draft training manual were drawn from a variety of sources, such as the UN,
UNTS, UNFAO, UNILC, World Bank, textbooks and journals, libraries of law schools, and the internet.
The initiative which led to the development of these training materials grew out of discussions with
Stefano Burchi and Kerstin Mechlem, legal officers of the Development Law Service, Legal Office,
Food and Agriculture Organization of the United Nations (FAO) on the occasion of the Program for
the Regional Workshop on International Water Law and Negotiation Skills for Sharing Transboundary
Resources in Bujumbura, Burundi in the Spring of 2006. Thank you Stefano and Kerstin for your
support and encouragement.
Special thanks also to Bart Hilhorst and Jake Burke of FAO and the SVP Coordination Project and
Information Products for Nile Basin Water Resources Management GCP/INT/945/ITA who also
tremendously supported and encouraged the production of these training materials.
Gratefully acknowledged is the advice and assistance received from Jacob Burke (FAO Rome).
Also gratefully acknowledged is the advice and assistance received from Bo Bricklemyer (The Institute
for Asian Research and The Dr. Andrew R. Thompson Program in Natural Resources Law and Policy,
Faculty of Law, University of British Columbia, Vancouver, Canada); Steve McCaffrey (University of the
Pacific, California, USA); Linda Nowlan (The Institute for Resources, Environment and Sustainability,
University of British Columbia, Vancouver, Canada); Kyle Robertson and Aaron Wolf (University of
Oregon, Oregon, USA); Jia Cheng, Heather Davidson, Holger Feser, Alex Grzybowski, Glen Hearns,
and Leah Jones.
Also gratefully acknowledged is the advice and assistance received from Gabriel Eckstein, George
Radosevich, and John Scanlon who peer reviewed these materials.
All errors and omissions remain the sole responsibility of the author.
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Table of contents
Table Of cOnTenTs
Preface - Introduction and Objectives of the Training Manual ......................................................... i
Disclaimer ............................................................................................................................................. ii
Acknowledgements ............................................................................................................................. iii
Table of Contents .................................................................................................................................. v
1 setting the scene
1.1
Introduction ......................................................................................................................... 1
2 watercourses and river basins
2.1
Hydrology and the Hydrological Cycle ............................................................................. 3
2.1.1
Explanation of the Processes .............................................................................................. 4
2.1.2
Relative Importance of the Water Exchange Processes .................................................... 6
2.1.3
The Relationship between Surface and Ground Water Resources .................................. 7
2.1.4
The Components of a Watercourse .................................................................................... 8
2.2
International Watercourses and River Basins .................................................................... 9
2.2.1
Background to International Watercourses ....................................................................... 9
2.2.1.1
Traditional Chronology ..................................................................................................... 10
2.2.1.2
Preventive Diplomacy ....................................................................................................... 11
2.2.1.3
Bi/multilateral Entities for Managing, Allocating,
Protecting, and Developing Transboundary Waters ...................................................... 12
2.2.2
Further Reading ................................................................................................................ 12
3 International law in context
3.1
International Law .............................................................................................................. 15
3.2
Hard Law and Soft Law .................................................................................................... 16
3.3
What is a treaty? ................................................................................................................ 17
3.4
Who can Agree to be Legally Bound by a Treaty ............................................................ 18
3.4.1
Bilateral or Multilateral ..................................................................................................... 18
3.4.2
Framework and Self-contained Treaties .......................................................................... 18
3.4.3
Protocols ............................................................................................................................ 18
3.4.4
How Does a State Agree to a Treaty? .............................................................................. 19
3.4.4.1
Signature ............................................................................................................................ 19
3.4.4.2
Exchange of Instruments .................................................................................................. 19
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3.4.4.3
Ratification ......................................................................................................................... 19
3.4.4.4
Acceptance or Approval .................................................................................................... 19
3.4.4.5
Accession ........................................................................................................................... 19
3.4.4.6
Party to a Treaty ................................................................................................................. 19
3.4.4.7
Depositary .......................................................................................................................... 20
3.4.5
Reservations ....................................................................................................................... 20
3.4.6
Entry into Force ................................................................................................................. 20
3.4.7
Amendments of Treaties ................................................................................................... 21
3.4.8
Which Treaty Takes Precedence in the Event of a Conflict?........................................... 21
3.4.9
Registration and Publication ............................................................................................ 22
3.4.10
Interpreting Treaties .......................................................................................................... 22
3.4.11
Stages of Treaty-Making ................................................................................................... 22
3.4.12
At a Treaty Negotiation ..................................................................................................... 23
3.4.13
Key Features of (Environmental) Treaties........................................................................ 24
3.4.14
Financing MEAs ................................................................................................................ 25
3.4.15
Civil Society Involvement in MEAs ................................................................................. 26
3.5
Principles of International Environmental Law .............................................................. 26
3.5.1
Sovereignty Over Natural Resources ............................................................................... 27
3.5.2
Duty to Prevent Transboundary Pollution and Environmental Harm ........................... 27
3.5.3
Sustainable Use of Natural Resources ............................................................................. 27
3.5.4
Sustainable Development ................................................................................................ 28
3.5.5
Right to a Healthy Environment ...................................................................................... 28
3.5.6
Precautionary Approach ................................................................................................... 29
3.5.7
Common Heritage of Mankind/Common Concern of Humankind ............................ 29
3.5.8
Common but Differentiated Responsibility .................................................................... 29
3.5.9
Intergenerational Equity ................................................................................................... 30
3.5.10
Public Participation ........................................................................................................... 30
3.5.11
Polluter Pays ....................................................................................................................... 30
3.5.12
Liability and Compensation for Environmental Damage .............................................. 30
3.5.13
Duty to Conduct Environmental Impact Assessments .................................................. 31
3.5.14
Duty of Non-discrimination/Environmental Justice ...................................................... 31
3.5.15
Right to Development ...................................................................................................... 31
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3.5.16
Other Principles ................................................................................................................ 31
3.6
International Water Law ................................................................................................... 32
3.6.1
General Rules of Law Concerning the Use of International Watercourses .................. 33
3.6.2
Equitable Utilization ......................................................................................................... 34
3.6.3
Equitable Participation: ..................................................................................................... 34
3.6.4
Prevention of Significant Harm ....................................................................................... 35
3.6.5
Rules concerning New Uses ............................................................................................. 35
3.6.6
Rules concerning Pollution ............................................................................................... 36
3.6.7
The Special Case of Shared Groundwater ...................................................................... 36
3.6.8
Links with World Bank Procedures.................................................................................. 36
3.6.9
Bibliography ....................................................................................................................... 37
4 negotiations and conflict resolution
4.1
Introduction ....................................................................................................................... 39
4.2
Conditions for Negotiation .............................................................................................. 40
4.3
Types of Negotiation ......................................................................................................... 43
4.3.1
Horizontal or In-Team Negotiations ............................................................................... 43
4.3.2
Vertical Negotiations ......................................................................................................... 44
4.3.3
Vested Interest Negotiations ............................................................................................ 45
4.3.4
Conciliatory Negotiations ................................................................................................. 46
4.3.5
Spokesperson Negotiations ............................................................................................. 47
4.3.6
Subcommittee Negotiations............................................................................................. 48
4.3.7
Bilateral or Multilateral Negotiations .............................................................................. 49
4.3.8
External Negotiations ....................................................................................................... 50
4.4
Positional Bargaining ........................................................................................................ 51
4.4.1
What is Positional Bargaining? ........................................................................................ 51
4.4.2
When is Positional Bargaining Often Used? ................................................................... 51
4.4.3
Attitudes of Positional Bargainers .................................................................................... 51
4.4.4
How to do Positional Bargaining ..................................................................................... 51
4.4.5
Costs and Benefits of Positional Bargaining.................................................................... 54
4.5
Interest-based Bargaining ................................................................................................ 54
4.5.1
What is Interest-based Bargaining.? ............................................................................... 54
4.5.2
When is Interest-based Bargaining Used? ...................................................................... 54
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4.5.3
Attitudes of Interest-based Bargainers ............................................................................ 54
4.5.4
How to do Interest-based Bargaining ............................................................................. 55
4.5.5
Costs and Benefits of Interest-based Bargaining ............................................................ 57
4.6
Making the Transition from Positional to Interest-based Bargaining ........................... 57
4.7
Stages of Negotiation ....................................................................................................... 58
4.8
Preparing to Negotiate ..................................................................................................... 60
4.9
Opening Statements for Negotiators .............................................................................. 65
4.10
Procedural Openings and Issues in Negotiation ............................................................ 66
4.10.1
Negotiator Power and Influence ...................................................................................... 66
4.11
Structured Decision Making for Negotiations ................................................................ 69
4.11.1
Background Materials ....................................................................................................... 72
5 simulation exercises
5.1
Purpose, Value and Scope ................................................................................................. 73
5.2
Simulation Exercise # 1 ­ The Vancouver River Part One .............................................. 73
5.2.1
Introduction ....................................................................................................................... 73
5.2.2
The Simulation .................................................................................................................. 74
5.2.3
Background Materials ........................................................................................................76
5.2.3.1
Theory ................................................................................................................................ 76
5.2.3.2
Supporting Documentation ............................................................................................. 80
5.2.4
Discussion Questions ....................................................................................................... 80
5.3
Simulation Exercise # 2 ­ The "Tree" ................................................................................ 83
5.3.1
Introduction ....................................................................................................................... 83
5.4
Simulation Exercise # 3 ­ Positions vs Interests .............................................................. 84
5.4.1
Introduction ....................................................................................................................... 84
5.5
Simulation Exercise # 4 ­ The "Prisoner's Dilemma" ...................................................... 85
5.5.1
Introduction ....................................................................................................................... 85
5.5.2
Prisoner's Dilemma Exercise ............................................................................................ 86
5.6
Simulation Exercise # 5 ­ The Vancouver River Part Two ................................................ 88
5.6.1
Introduction ....................................................................................................................... 88
5.6.2
The Simulation .................................................................................................................. 90
5.6.3
Background Materials ....................................................................................................... 93
5.7
Simulation Exercise # 6 ­ The Elinehtton River Basin .................................................... 94
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Table of contents
5.7.1
Introduction ....................................................................................................................... 94
5.7.2
The Simulation .................................................................................................................. 95
5.8
Simulation Exercise # 7 ­ An International
Groundwater Negotiation Simulation ........................................................................... 99
5.8.1
Introduction ....................................................................................................................... 99
6 conclusion
Conclusion ........................................................................................................................................ 103
glossary
Glossary .......................................................................................................................................... 105
appendices
Appendix A
United Nations Convention on the Law of the Non-navigational Uses of
International Watercourses ............................................................................................. 111
Appendix B
World Bank Operational Manual ................................................................................... 133
Appendix C
Helsinki Rules (Campione Consolidation) ................................................................... 137
Appendix D
Abstract from Commentary to the Helsinki Rules
on the Uses of the Waters of International Rivers ........................................................ 157
Appendix E
Convention on the Protection and Use of
Transboundary Watercourses and International Lakes ................................................ 163
Appendix F
Adversaries into Partners: International Water Law and
the Equitable Sharing of Downstream Benefits ........................................................... 185
Appendix G
The Role of Customary International Water Law ......................................................... 207
Appendix H
Beyond the River: The Benefits of Cooperation
on International Rivers ................................................................................................... 209
Appendix I
Current Development: The 1997 United Nations
Convention on International Water Courses ................................................................ 225
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setting the scene
1
InTrODucTIOn
Fresh water is vitally important to human life. Due to this truth, there is a global water crisis which
requires worldwide attention. Nearly half of the world's population is located within one or more
of over 260 international drainage basins shared by two or more states, and at least 145 nations
have territory within international basins. In response to the emerging global crisis in water
scarcity, there has been a global water agenda in the international forum since 1972. Governments,
experts, and non-governmental organizations have been collaborating in response to this crisis,
with transboundary water agreements being especially important in providing resolutions to this
global water crisis. However, there has yet to be a focus on transboundary water issues and this
manual, in part, has been created in response to that. Transboundary river agreements have played
an increasingly critical role in building confidence in pursuit of peace and security on a regional and
global scale. International agreements governing the utilization of transboundary water resources
have the tendency to stabilize and enhance security on a regional level. Disagreements over water can
heighten international tension and lead to conflict, but the very process of reaching an understanding
for cooperation in a transboundary water context has a stabilizing effect and creates an increasingly
transparent atmosphere. The mere task of negotiation usually widens political participation, builds
political stability and spreads confidence between the basins states. Agreements have the ability
to ameliorate tension and reduce the likelihood of war, but even where the riparians fail to reach
an agreement and merely agree to share information and exchange data, increased confidence
often emerges. Joint cooperation around transboundary watercourses paves the way for regional
cooperation in other domains of politics, economics, environment, and culture.
Negotiation and implementation of transboundary water agreements contribute to peace and security.
Collective action and greater cooperation on a global level are necessary for the achievement of goals
in relation to the eminent global water crisis. Transboundary river agreements act as capacity building
measures to enhance peace and security regionally and globally. The perception by countries of the
water problem as a zero-sum game leads these countries to seek to increase control over water, even
to the detriment of others, and tensions over water have contributed to an uneasy political climate
in places such as Central Asia. The presence of a functional treaty can decrease the severity and
frequency of water disputes. Lessons regarding negotiation and implementation of transboundary
water agreements, by facilitating cooperation and learning, give countries the opportunity to exchange
lessons and experiences with each other in a supportive environment.
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2
watercourses and river basins
waTercOurses anD rIver basIns
Water plays a vital role in our society. It is important for nourishment, irrigation and agriculture,
fishing and fish farming, conservation and the environment, flood control, and hydropower
generation. It is also important in terms of navigation, effecting commerce, transportation,
recreation and travel. This chapter explains the hydrological cycle and introduces the reader into the
particularities of international watercourses and river basins.
2.1
Hydrology and the Hydrological cycle
The presence of large quantities of water in each of its three phases (ice, liquid water and vapour) is a
distinguishing feature of the Earth.
Water plays a particularly essential role in the climate system:
· Latent heat processes are a major component of the energy balance.1
· Water vapour and clouds play a major part in determining the radiative balance of the Earth.
· Without water there would be no ecological system for life to exist, there would be
no biosphere.
Most of the Earth's water is in the oceans and only a tiny amount is in the atmosphere. Nevertheless,
atmospheric water vapour and clouds are of major importance in the climate system. The simple fact
that water can exist in each its three phases under the temperature and pressure conditions of the
Earth is also an important factor in determining the Earth's climate:
· In its solid phase, water in glaciers is important for storage of water and because it increases
the Earth's albedo.2
· Water is readily transported as vapour.
· Water formation in the form of cloud droplets: clouds are efficient cleansers of atmospheric
pollution and clouds contribute to an increased global albedo.
Table 1: THe waTer DIsTrIbuTIOn:
Water source:
Percentage of total Water:
Oceans, Seas, & Bays
96.5
Ice caps, Glaciers, & Permanent Snow
1.74
Groundwater
1.7
Soil Moisture
0.001
Ground Ice & Permafrost
0.022
Lakes
0.013
Atmosphere
0.001
Swamp Water
0.0008
Rivers
0.0002
Biological Water
0.0001
Total
100
source: gleick, P. H., 1996: Water resources. In encyclopedia of climate and Weather, ed. by s. H. schneider, oxford university Press,
new York, vol. 2, pp.817-823.
3
1 Latent heat describes the amount of heat which is absorbed or evolved in changing the state of a substance without changing its
temperature, e.g., in freezing or vaporizing water.
2 Earth's albedo is the reflectivity of the Earth's atmosphere and surface combined.

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watercourses and river basins
The following diagram shows the principal components of the transformations which water
undergoes. This is known as the Hydrological Cycle.
fIgure 1: PrIncIPal cOMPOnenTs Of THe "HyDrOlOgIcal cycle"
source: school of earth and environment, university of leeds.
2.1.1
explanation of the Processes:
· Evaporation: Takes place from the surface of the oceans, from land and from wet vegetation.
It is strongly temperature-dependent and requires latent heat to be supplied.
· Transpiration: This is the loss of water vapour from the leaf cells of plants. Soil water is taken
up by plant roots and lost to the atmosphere through the leaves, mainly during the day.
· Atmospheric Water Vapour Transport: This is the transport of water in its vapour phase by
the circulation of the atmosphere.
· Cloud Formation: Clouds form when water vapour condenses to form water droplets. This
happens when air cools to a temperature equal to its dew point. The amount of water vapour
in the air can be measured by its vapour pressure. There is a limit to the amount of water
vapour which air can hold at a given temperature. This limit is called the saturation vapour
pressure. The saturation vapour pressure increases rapidly with temperature.
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2
watercourses and river basins
fIgure 2: saTuraTIOn vaPOur Pressure Of aIr (I.e. THe Pressure aT wHIcH THe aIr
becOMes saTuraTeD) as a funcTIOn Of TeMPeraTure.
Note the very rapid increase with temperature.
source: school of earth and environment, university of leeds.
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watercourses and river basins
· If air containing a fixed amount of water vapour is cooled (for example because it rises which
causes it to expand), the saturation vapour pressure will decrease. Eventually a temperature
will be reached where the saturation vapour pressure is equal to the actual vapour pressure of
the air. This temperature is the dew point. Any further decrease in temperature would mean
that the vapour pressure would be greater than the saturation vapour pressure, which does
occur to any significant extent. Hence some of the water vapour must condense as liquid
water droplets. This process also involves the release of latent heat. Another way of measuring
the water vapour content is using the relative humidity.
vapour pressure
Relative humidity =
x 100 %
saturation vapour pressure
· As air cools, its relative humidity increases until it reaches 100%. Then condensation must
occur if there is any further cooling.
· In reality, however, condensation cannot occur quite as easily as the above suggests.
Condensation usually only takes place on the surface of small particles called aerosols.
· If the temperature is below 0oC then ice crystals form rather than liquid water droplets.
· Precipitation: water droplets coalesce and eventually become large enough to settle
significantly under gravity. As they fall, they sweep up more droplets and rain droplets
are formed.
2.1.2
relative Importance of the water exchange Processes:
Figure 3 shows the amount of water involved in exchanges between the reservoirs explained above.
The exchanges are measured relative to a total annual global precipitation of 100 units.
The most important point to note is that approximately two-thirds of the precipitation over land is
accounted for by evapotranspiration over land. The other third is due to horizontal transport of water
vapour which was evaporated from the oceans. Now evapotranspiration is strongly affected by land-
use and vegetation. Thus there is the potential for a strong feedback between changes in land-use
and local precipitation. For example, deforestation can mean smaller evapotranspiration which leads
to reduced rainfall.
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2
watercourses and river basins
fIgure 3: PrIncIPal excHanges anD reservOIrs In THe HyDrOlOgIcal cycle.
2.1.3 The relationship between surface and ground water resources
The hydrologic cycle teaches that, more often than not, surface and ground water resources are
interlinked and highly interdependent. In other words, most of the world's rivers, streams and lakes
are fed by or contribute to one or more aquifers. As a result of these relationships, interlinked surface
and ground waters form a system whereby activities in (or changes to) one part of the system can
result in consequences to other parts of the system.
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watercourses and river basins
fIgure 4: grOunD waTer-surface waTer InTeracTIOn
The diagram illustrates the
typical relationship between
ground water and surface
water. The surficial aquifer is
recharged through rainfall on
and infiltration into the upland
areas between drainages.
Discharges from the surficial
aquifer occur into local
streams and rivers.
2.1.4
The components of a watercourse:
· Surface Waters
»
Drainage Basin ­ land area drained by an interrelated system of stream, river, lake and/
or other surface waters.
»
Watershed or catchment area ­ drainage area for subsets or sub-basin units of the
drainage basin (i.e., tributaries, streams, etc.).
»
Divide ­ high point on land, which separates two drainage basins or watersheds.
»
Tributary ­ a lesser river/stream that feeds into the main river/stream.
»
Mouth of a river ­ endpoint of a river where it flows into another river or into the sea.
»
Source or headwaters of a river ­ origin of a river/stream.
· Ground Waters:
»
Ground Water ­ water occupying voids, cracks or other spaces between particles of clay,
silt, sand, gravel or rock within a geologic formation.
»
Aquifer ­ a permeable geologic formation (such as sand or gravel) that has sufficient
water storage and transmitting capacity to provide a useful water supply via wells and
springs.
»
Water Table ­ the level in the geologic formation below which all voids or cracks are
saturated; the top of the saturated zone.
»
Recharging Aquifer ­ an aquifer that is connected to the hydrologic cycle and has a
continuous and significant source of recharge.
»
Non-Recharging Aquifer ­ an aquifer that is completely detached from the hydrologic
cycle and obtains insignificant or no recharge.
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watercourses and river basins
»
Ground Water Mining ­ pumping an aquifer at a rate exceeding recharge.
»
Aquifer-Stream relationship:
Effluent (Gaining) Stream ­ a relationship whereby the water table is at higher
elevation than an intersected stream channel and slopes downward toward the
stream. In such relationships, the aquifer recharges the stream.
Influent (Losing) Stream ­ a relationship whereby the water table slopes downward
from the stream to the aquifer. In such relationships, stream water percolates into
the underlying aquifer recharging the aquifer.
Ultimately, the hydrologic cycle exhibits that surface and ground water resources are interlinked and
highly interdependent. Most of the world's rivers, streams and lakes are fed by or contribute to one or
more aquifers. As a result of these relationships, interlinked surface and ground waters form a system
whereby activities in, or changes to, one part of the system can result in consequences to other parts
of the system. While this understanding has been recognized among scientists for decades, until
recently it received little attention in the political or legal arenas. More troubling, this understanding is
still sorely neglected in the vast majority of international agreements.
The value of water is also an important aspect of international watercourses. How states value water
is especially relevant for resolving conflicts in a multitude of ways. For some, water is a property
right and a commodity that is subject to the free market; others value it in relation to its significance
for human survival; others, still, assess water as an integral component of the natural environment;
and some appreciate water in relation to its cultural, religious, and societal significance. The idea of
valuation often is at the core of disputes over fresh water resources. On the international front, fresh
water disputes often involve issues of human rights, health, the right to develop and environmental
and pollution issues, all of which relate to how States and their citizens value water.
The implications of issues regarding both the hydrological cycle and the importance of water
valuation are extremely relevant to the principle of equitable and reasonable use of water which lies at
the core international law.
2.2
International watercourses and river basins3
River basins and groundwater aquifers which cross international boundaries present increased
challenges to effective water management where hydrologic needs are often overwhelmed by political
considerations. While the potential for paralyzing disputes are especially high in these basins, the
record of violence is actually greater within the boundaries of a nation. Moreover, history is rich with
examples of water acting as a catalyst to dialogue and cooperation, even among contentious riparians.
2.2.1
background to International watercourses
There are over 260 watersheds and countless aquifers which cross the political boundaries of two or
more countries. International basins cover 45.3% of the land surface of the earth, affect about 40% of
the world's population, and account for approximately 80% of global river flow (Wolf et al. 1999).
These basins have certain characteristics that make their management especially difficult, the most
notable of which is the tendency for regional politics to regularly exacerbate the already difficult task
of understanding and managing complex natural systems.
9
1 The material in this section relies on material originally developed by Professor Aaron Wolf including Beach, L., J. Hamner, J.
Hewitt, E. Kaufman, A. Kurki, J. Oppenheimer, and A. Wolf. Transboundary Freshwater Dispute Resolution: Theory, Practice and
Annotated References. Tokyo and New York: United Nations University Press, 2000.

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fIgure 5: InTernaTIOnal basIns Of THe wOrlD
2.2.1.1. Traditional chronology
According to Wolf, a general pattern has emerged for international basins over time. Generally
riparians of an international basin implement water development projects unilaterally, first on water
within their territory, in attempts to avoid the political intricacies of the shared resource. At some
point, one of the riparians, usually the regional power, will implement a project which impacts at least
one of its neighbours. This might be to continue to meet existing uses in the face of decreasing relative
water availability, as for example Egypt's plans for a high dam on the Nile or Indian diversions of the
Ganges to protect the port of Calcutta. It might also be to meet new needs reflecting new agricultural
policy, such as Turkey's GAP project on the Euphrates. This project which impacts one's neighbours
can, in the absence of relations or institutions be conducive to conflict resolution, or become a flash
point for heightened tensions and regional instability requiring years or, more commonly, decades to
resolve.
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2.2.1.2. Preventive Diplomacy
Wolf notes:
[T]he record of acute conflict over international water resources is overwhelmed by
the record of cooperation. The last 50 years has seen only 37 acute disputes (those
involving violence) and, during the same period, 157 treaties negotiated and signed.
In fact, the last (and only) war fought specifically over water took place 4,500 years
ago, between the city-states of Lagash and Umma along the Tigris River. Total
numbers of events in the last 50 years are equally weighted towards cooperation:
507 conflict-related events, and 1,228 cooperative. The most vehement enemies
around the world either have negotiated water sharing agreements, or are in the
process of doing so as of this writing. Violence over water seems neither strategically
rational, hydrographically effective, nor economically viable. Shared interests along a
waterway seem to consistently outweigh water's conflict-inducing characteristics.
Furthermore, once cooperative water regimes are established through treaty, they turn out to be
impressively resilient over time, even between otherwise hostile riparians, and even as conflict is
waged over other issues. For example, the Mekong Committee has functioned since 1957, exchanging
data throughout the Vietnam War. Secret `picnic table' talks have been held between Israel and Jordan,
since the unsuccessful Johnston negotiations of 1953-55, even as these riparian nations were in a legal
state of war. Further, the Indus River Commission not only survived through two wars between India
and Pakistan, but treaty-related payments continued unabated throughout the hostilities.
Despite their complexity, the historical record shows that water disputes get resolved, and that
the resulting water institutions can be tremendously resilient. The challenge for the international
community is to get ahead of the "crisis curve", to help develop institutional capacity and a culture
of cooperation in advance of costly, time-consuming crises, which in turn threaten lives, regional
stability, and ecosystem health.
One productive approach to the development of transboundary waters has been to examine the
benefits in a basin from a multi-resource perspective. This has regularly required the riparians to get
past looking at the water as a commodity to be divided, and rather to develop an approach which
equitably allocates not the water, but the benefits derived.
According to Wolf, the most critical lessons learned from the global experience in international water
resource issues are as follows:
1. Water crossing international boundaries can cause tensions between nations which share the
basin. While the tension is not likely to lead to warfare, early coordination between riparian
states can help ameliorate the issue.
2. Once international institutions are in place, they are tremendously resilient over time, even
between otherwise hostile riparian nations, and even as conflicts are waged over other issues.
3. More likely than violent conflict occurring is a gradual decreasing of water quantity or quality,
or both, which over time can affect the internal stability of a nation or region, and act as an
irritant between ethnic groups, water sectors, or states/provinces. The resulting instability may
have effects in the international arena.
4. The greatest threat of the global water crisis to human security comes from the fact that
millions of people lack access to sufficient quantities of clean water for their well being.
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2.2.1.3. bi/multilateral entities for Managing, allocating, Protecting, and
Developing Transboundary waters
Commissions and other bi/multilateral organizations are especially relevant to the management,
allocation, protection, and development of transboundary waters. Such entities have been employed
on a multitude of transboundary rivers in Europe; in North America, on the Great Lakes, the Rio
Grande and the Colorado River; in Africa on the Okavango and Zambezi Rivers and for Lake Chad;
in Asia on the Mekong River; in Latin America on the frontier waters between Guatemala and
Mexico and on the Uruguay River.
"Meaningful progress in improving water resources management across jurisdictional boundaries requires
effective mechanisms to be developed for an informed and structured dialogue about contentious issues as a
means of resolving disagreements as they arise, and an agreed means for implementing the decisions that are
taken. This requires an open and transparent process to be put into effect, one that facilitates the development
of mutual trust and understanding over time. Creating river basin organizations (RBOs) has been actively
promoted as a way of peacefully managing shared water resources and there are many good examples of RBOs
from across the globe."
It has to be mentioned that often there exists no `perfect' solution in a transboundary water
issues--but only the `best' possible under all of the current political, social, economic and
environmental circumstances.
Negotiations surrounding the role and functions of bi/multilateral entities have revolved around
power; politics; history; culture; the economy and the environment.
2.2.2
further reading
Amery, Hussein and Aaron Wolf, eds., Water in the Middle East: A Geography of Peace
(Austin: University of Texas Press, 2000).
Beach, L., J. Hamner, J. Hewitt, E. Kaufman, A. Kurki, J. Oppenheimer, and A. Wolf,
Transboundary Freshwater Dispute Resolution: Theory, Practice and Annotated References
(Tokyo and New York: United Nations University Press, 2000).
Biswas, Asit ed., International Waters of the Middle East: From Euphrates-Tigris to Nile
(Oxford: Oxford University Press, 1994).
Blatter, Joachim and Helen Ingram, eds., Reflections on Water: New Approaches to Transboundary
Conflicts and Cooperation (Cambridge, Mass.: MIT Press, 2001).
Cech V., Thomas, John Wiley and Sons, "Principles of Water Resources: History, Development,
Management and Policy", Inc. 2003
Elhance, Arun Hydropolitics in the Third World: Conflict and Cooperation in International River Basins
(Washington DC: US Institute of Peace Press, 1999).
Kliot, Nurit, Deborah Shmueli, and Uri Shamir (1997), Institutional Frameworks for the Management of
Transboundary Water Resources, Haifa, Israel: Water Research Institute. (Two volumes.)
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Milich, Lenard and Robert G. Varady, "Openness, Sustainability, and Public Participation: New Designs
for Transboundary River Basin Institutions", The Journal of Environment and Development, 8 (3) 258-306
(1999).
Paisley, Richard Kyle, "International Water Law, Transboundary Water Resources and Development Aid
Effectiveness", 1 Indian Jurid. Review 67 (2004).
Paisley, Richard Kyle, Cuauhtémoc León, Boris Graizbord and Eugene Bricklemyer, Jr., "Transboundary
Water Management: An Institutional Comparison among Canada, the United States and Mexico",
Ocean and Coastal Law Journal (University of Maine School of Law), 9 (2), 177 (2004).
Paisley, Richard Kyle, "Adversaries into Partners: International Water Law and Down Stream Benefits",
Melbourne Journal of International Law, 3 (2) 280 (2002).
Paisley, R. K., and McDaniels T., "International Water Law, Pollution Risk and the Tatshenshini River",
35 Nat. Res. J. 111 (1995).
Phillips, David et al., "Trans-Boundary Water Cooperation as a Tool for Conflict Prevention and for
Broader Benefit-sharing". Prepared for the Ministry of Foreign Affairs, Sweden. Phillips Robinson
and Associates, Windhoek, Namibia (2006).
Sadoff, C.W. and Grey, David , "Beyond the River: the Benefits of Cooperation on International
Rivers", Water Policy, 4, 389-403, (2002).
Wolf, Aaron ed., Conflict Prevention and Resolution in Water Systems (Cheltenham, UK: Edward
Elgar, 2001).
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3
International law in context
InTernaTIOnal law In cOnTexT4
3.1
International law
International law is the set of rules that states use to manage their relations. International law is
different from national law. In a national legal system, a central law-making body or legislature makes
the laws, the executive implements the laws and secures their observance and the judiciary interprets
and applies the law. There are no equivalents to these bodies in the international legal system.
The main concept of international law is sovereignty, defined as "the supreme, absolute and
uncontrollable power by which any state is governed". A state's sovereign power to control activities
inside its boundaries is limited by the international legal rules that the state has agreed to follow.
In the international law field, the tension between sovereignty and protection of the environment
often surfaces.
Sovereign states make the rules that govern their citizens and that apply within the limits of their
territorial jurisdiction, including the land within their borders, internal waters, territorial sea and the
air above these areas extending to the point at which the legal regime of outer space begins. Each of
these territorial areas is defined by legal rules. Areas outside the national jurisdiction of each state
include the high seas, deep sea bed, atmosphere and outer space, and certain limited land areas in
Antarctica. These areas are sometimes called the "global commons" and international rules also govern
these areas.
International legal rules develop by consent among states. Treaties affect only those states that
consent or agree to be legally bound by the written agreement. International laws are formed when
states need to cooperate with other states. This need to cooperate creates an incentive to comply
with international law. However, conditions do change, which can lead to violations of international
law. Law breaking states may attract diplomatic pressures, sanctions, reprisals, and in extreme cases,
military intervention.
International law is derived from express written agreements between states, usually called treaties,
as well as from other sources such as custom, the customary practice of states who believe they are
legally required to conform to certain practices.
International law encompasses global, multilateral or bilateral agreements, as well as customary law,
state practice, institutions that develop and administer the law and the extra-territorial application
of domestic law. Among other things, international law attempts to control, limit and prevent
environmental damage and promote a clean and healthy environment. Environment is a broad topic,
including fresh and salt water, soil, land, atmosphere, all living creatures and all other aspects of the
physical environment.
International law is not confined to purely environmental subjects, but is very much intertwined
with other pressing issues facing the world: the North-South divide; excessive and inequitable
consumption patterns; poverty; human health; human rights; international and national trade; and
investment and financial regimes.
15
4 The material in this section relies on materials originally developed by Linda Nowlan including in Nowlan, Linda et. al., "Kyoto,
Pops and Straddling Stocks: Understanding Environmental Treaties", West Coast Environmental Law Association, Vancouver,
Canada. (2003).

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International law in context
3.2
Hard law and soft law
The sources of international law are sometimes characterized as "hard law" and "soft law". Treaties are
hard law. States that negotiate and ratify treaties intend to be legally bound and are expected to make
all efforts to comply with these laws. However, soft law is increasingly important in the development
of international law. Soft law has been called more flexible, dynamic, and democratic than hard law.
Its creation does not depend on formal negotiations between authorized diplomats. Soft law can be
initiated or substantially influenced by NGOs, international institutions like UNEP or the World Bank.
Different groupings of states can also significantly affect soft law development as in the case of the
Organization for Economic Cooperation and Development (OECD).
Hard law includes conventions, treaties, agreements and protocols, all different names for legally
binding written agreements between states. In the field of international environmental law, treaties
or MEAs contain most international legal obligations. Treaties are created to codify existing and
emerging practices and to create new binding rules. All the international rules concerning treaties
that have developed over years of state practice have been collected and codified in a treaty called the
Vienna Convention on the Law of Treaties. The Vienna Convention defines what a treaty is, outlines the
procedures for states to demonstrate their consent to be bound by the treaty, sets the rules for treaty
procedure, and addresses other matters such as determining priority between treaties.
Soft law refers to documents like declarations, guidelines, resolutions and statements of principle
or codes of conduct that are not legally binding. It includes United Nations resolutions, conference
declarations such as the Rio and Stockholm Declarations and statements from major UN bodies such
as the United Nations Environment Program (UNEP). Some observers would also classify statements
from major non-governmental organizations such as the IUCN ­ WWF World Conservation Strategy as
being a form of soft law.
Soft law declarations may also be negotiated by private sector corporations, or by these corporations
in partnership with an international organization. Examples include UNEP's Statement on Financial
Institutions and the Environment and the numerous corporate social responsibility commitments made
by individual corporations or by geographical or industry sectors. Some soft law statements like the
Global Reporting Initiative, an attempt to harmonize corporate social and environmental reporting
procedures, cut across industry sectors.
Soft law is becoming more common internationally. Soft law instruments may lay the foundation for
later legally binding agreements. For example, the 1989 UNEP ­ FAO Prior Informed Consent (PIC)
guidelines for certain toxic chemicals and pesticides led to the 1998 Rotterdam Prior Informed Consent
(PIC) Convention, and the FAO's 1983 International Undertaking on Plant Genetic Resources led to the
adoption of the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture.
Though soft law generally creates aspirational goals rather than strict legal duties, this is not always
the case. On occasion a non-binding document is so precise and detailed that it could easily be
mistaken for a treaty. An example is the OECD Guidelines for Multinational Enterprises, revised in 2000.
As the Foreword from the OECD Secretary General states: the Guidelines are an example of the type
of multilateral instrument that will be used more and more in future to set rules, which, though not
legally binding, are meant to work, be implemented, followed up and monitored.
An important aspect of soft law is decisions of "Conferences of the Parties" (or COPs) to various
treaties. Technically, these decisions are not legally binding unless they are incorporated into the
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treaty, but they often flesh out essential details of treaties. For instance, extensive detailed decisions
of the UN Framework Convention on Climate Change are essential to the working and effectiveness of
the Kyoto Protocol. Although technically not legally binding, the COP decisions on implementation of
the Kyoto Protocol have a force that is almost equivalent to the Protocol itself, setting out in detail how
compliance will be determined and what states are required to do.
Whether states and others comply with soft law commitments in the same manner as they do binding
treaty law remains a subject of debate. Initial research findings suggest that soft law compliance
is more likely when the soft law instruments are linked to binding international agreements or to
existing regional and national legal arrangements.
3.3
what is a treaty?
A treaty between nations is similar to a legal contract between individuals. It is a written agreement
that all parties involved consented to and intend to guide their actions. In the international arena
treaties are agreements between states to take common action on a problem that transcends
national boundaries. Treaties have a fixed geographic scope. A treaty often, but not always, creates an
international organization to carry out the work defined by the Parties, take new decisions and further
develop the applicable international law.
The Vienna Convention defines a treaty as "an international agreement concluded between states in
written form and governed by international law whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation".
Treaties may be known by other names, such as conventions, protocols, covenants, pacts, charters
or agreements, but the different names have no legal significance. If the agreement is between states,
in written form, and is intended to be legally binding and governed by international law, then it is
a treaty.
To decide whether a particular agreement is a treaty, the intent of negotiating parties must be
examined. If they intended to be bound by international law, there will usually be some evidence of
that intent in the words of the agreement. If the agreement says "The Contracting Parties hereby agree
...", or uses other terms such as "rights" or "obligations", that is evidence of an intention to be bound.
If the agreement says that the states (not Parties) "declare" their intent, as in the Declaration on the
Establishment of the Arctic Council, that is evidence that the states did not intend to create a legally
binding treaty. The Rio Declaration on Environment and Development is another example of a non-
binding statement by states. States intentionally use the title `Declaration' when they do not intend to
create legally binding commitments, and on occasion even more explicitly emphasize that a document
is not a treaty, as in the "Non-Legally Binding" Forest Principles adopted in Rio.
A treaty cannot conflict with a "peremptory norm" of international law (jus cogens norm). These norms
are universal, applicable to all states and cannot be contracted out of through the treaty process.
Further, Article 53 of the Vienna Convention states that a treaty is void if it conflicts with a peremptory
norm of international law. The most widely known examples of these norms are prohibitions against
genocide and slavery.
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3.4
who can agree to be legally bound by a Treaty
Nation states are the primary subjects of the international legal system. The majority of treaties are
between states. Some other entities such as associations of states, like the European Union or the
United Nations also have the "legal personality" which allows them to conclude treaties. A treaty
can be concluded between a state and an international organization, or between two or more
international organizations, but not between a state and a corporation.
3.4.1
bilateral or Multilateral
Treaties may be bilateral--i.e., have two states as Parties--or multilateral--i.e., have more than
two states as Parties. The major environmental treaties, such as the climate change and biodiversity
agreements, are multilateral. Both these treaties have 186 Parties as of 2002. These are very high rates
of membership--there are 191 states that are members of the United Nations.
3.4.2
framework and self-contained Treaties
A "framework treaty" is a type of treaty that contains general obligations, usually with a procedure
for reaching more detailed agreement on specific obligations through protocols or subsequent
legal agreements in the future. This type of multilateral treaty has become common for global
environmental subjects. Examples of framework treaties include the UN Framework Convention on
Climate Change, the Convention on Biological Diversity and the Vienna Convention for the Protection of the
Ozone Layer. All three of these treaties have at least one Protocol: the Kyoto Protocol under the UNFCC;
the Biosafety Protocol under the CBD; and the Montreal Protocol on ozone, the only one of these
Protocols in force as of 2002.
A self-contained treaty works through annexes or appendices which are revised periodically by the
Contracting Parties at Conferences or meetings. Examples of this type of Convention include the
World Heritage Convention, which maintains a World Heritage List of natural and cultural sites whose
outstanding values should be preserved for all humanity, and the Convention on International Trade in
Endangered Species (CITES), which maintains three different Appendices of species at risk. Revising an
Appendix or List is usually easier than negotiating a new Protocol or addition to a treaty, but is only
suitable for subjects that can easily be set out in a list.
3.4.3
Protocols
In the environmental field, the term "Protocol" is usually used to describe a legally binding agreement
that elaborates on, or contains detailed substantive commitments to implement the objectives of
a framework treaty. For example, a number of Protocols for specific air pollutants exist under the
UNECE Convention on Long-Range Transboundary Air Pollution. Protocols must be agreed, signed and
ratified separately from the framework treaty. An Optional Protocol to a treaty establishes additional
rights and obligations, and allows some willing Parties to go farther than the original treaty. An
example from the human rights field is the Optional Protocol to the International Covenant on Civil and
Political Rights.
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3.4.4
How Does a state agree to a Treaty?
The Vienna Convention provides that states can demonstrate their intent to be legally bound by a treaty
in a variety of ways, including: signature, exchange of instruments constituting a treaty, ratification,
acceptance or approval, accession, or any other agreed means.
3.5.4.1 signature
Most often a state will indicate its intention to become a Party by first signing the treaty. Two different
purposes for signature must be distinguished: a state can sign a treaty to indicate approval of the
final text or to show consent to be bound by the treaty. Signature alone is usually insufficient to show
consent to be legally bound to a multilateral treaty, but shows that the state is willing to proceed
with the international law-making process. Additional steps, such as ratification, are usually required.
Environmental treaties commonly state that they will be "open for signature" until a specified date.
When a state signs a treaty, it agrees to refrain from any acts which would defeat the object and
purpose of the treaty.
3.5.4.2 exchange of Instruments
This procedure allows states to exchange instruments, or written documents, to conclude the treaty.
Usually, an exchange of instruments will be used to formalize a bilateral treaty.
3.5.4.3 ratification
This is the most common way states show consent to be bound by environmental treaties. The Vienna
Convention defines ratification as "the international act so named whereby a state establishes on the
international plane its consent to be bound by a treaty". Ratification occurs when a state completes
the necessary formal procedures for executing an instrument of ratification, and then exchanges this
document with another state for a bilateral treaty or, for a multilateral treaty, sends it to a depository,
the place where all the documents of ratification are collected.
3.5.4.4 acceptance or approval
These are alternatives to ratification which have the same legal effect as ratification. Many
environmental treaties say that they are "subject to ratification, acceptance or approval", leaving it up
to the state to decide which procedure to follow.
3.5.4.5 accession
This procedure allows a state to agree to be bound by a treaty that has already been concluded by
other states. Accession will be used, for example, if the treaty has come into force. Accession has the
same legal effect as ratification.
3.5.4.6 Party to a Treaty
Before a treaty enters into force, a state that has demonstrated its intent to be bound is called a
"contracting state." Only after the treaty has entered into force is a state that has consented to be
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bound called a "Party." Throughout this Guide, when the term "Party" is used, it refers to a state that is
legally bound by a particular treaty.
3.5.4.7 Depositary
To demonstrate that a state has agreed to the treaty, an instrument or document showing ratification
(or its equivalent) is deposited, or placed, in a specified location. A treaty will usually designate a
depositary such as a location in a country or, more often today, an international organization like
the United Nations. The UN Secretary General is the depositary for over 500 multilateral treaties.
Depositaries must accept all ratifications and documents related to the treaty, examine whether all
formal requirements have been met, deposit them, register the treaty and notify Parties of all new
developments regarding the treaty.
3.4.5
reservations
A state does not usually need to agree to every single provision of a treaty in order to become a Party
to that treaty. It can contract out of one or more of the treaty's obligations by entering a reservation to
the treaty. A reservation is defined by the Vienna Convention on the Law of Treaties as:
"A unilateral statement, however phrased or named, made by a state, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude
or to modify the legal effect of certain provisions of the treaty in their application to
that state."
For example, Norway is a party to the International Convention for the Regulation of Whaling but
has issued a reservation about the catch quotes on whaling imposed by the treaty. The Convention
on International Trade in Endangered Species of Wild Flora and Fauna (CITES) allows Parties to enter
reservations or a unilateral statement that it will not be bound by the provisions of the Convention
relating to trade in a particular species listed in the Appendices as endangered. This procedure has
been used, for example, by some African states for the elephant, and France, Denmark and Finland for
the mountain weasel. The underlying purpose of a more permissive policy regarding reservations is
based on the interest of encouraging as many states as possible to join treaties.
Reservations are allowed unless the treaty specifically states that they are not allowed. For example,
the UN Convention on the Law of the Sea and the Kyoto Protocol do not allow for reservations. A state
must agree to be legally bound by every provision of those treaties or decide not to consent to them
at all.
Reservations are forbidden if they are incompatible with the object and purpose of the treaty.
3.4.6
entry into force
A treaty enters into force and becomes binding law for those states that have consented to be bound
(and those states only) in a manner and on the date provided for in the treaty or as the negotiating
states may agree. The treaty itself will usually specify how it enters into force.
The most common way for a treaty to enter into force is when ratification by a set number of the
negotiating states occurs. For example, Canada signed and ratified the UN Fish Agreement (UNFA), or
the Agreement on Highly Migratory or Straddling Stocks, but it was not legally binding on Canada until it
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entered into force. That treaty required thirty states to ratify it before it entered into force. The required
number of ratifications was reached in 2001, and UNFA entered into force on December 11, 2001.
After a state signs a treaty, but before it enters into force and becomes legally binding, a contracting
state is obliged to refrain from acts which would defeat the object and purpose of the treaty. In the
context of environmental treaties, this obligation means that a state would be prohibited from taking
any environmentally damaging action covered by the treaty before it entered into force.
Sometimes, to enter into force, a treaty specifies that additional requirements must be met by the
states that agree to be legally bound. The 1984 Protocol to the Convention on Long-Range Transboundary
Air Pollution required ratification by 19 states within the geographical scope of the protocol, namely
Europe, before it came into force. The Montreal Protocol on Substances that Deplete the Ozone Layer came
into force only after ratification by 11 states representing at least two-thirds of the 1986 estimated
global consumption of the controlled ozone depleting substances. The rules for entry into force of
the Kyoto Protocol require two conditions to be met: ratification by 55 Parties to the climate change
convention and ratification by Annex I Parties (developed countries) that accounted for 55% of that
group's carbon dioxide emissions in 1990.
3.4.7
amendments of Treaties
Treaties may be amended by agreement between the Parties, normally by concluding an additional
written agreement. Amendments change the original treaty provisions only for those Parties that
adopt the amendment. A state is not required to adopt any amendments to the original treaty and
is allowed to remain a Party to the treaty, but not to the subsequent amendments. A treaty will often
specify particular amendment procedures. If it does not contain these procedures, any amendments
will require the consent of all Parties.
3.4.8
which Treaty Takes Precedence in the event of a conflict?
If there are two treaties with conflicting provisions, and both treaties have identical Parties, then the
law is clear. The later treaty will take precedence to the extent of the conflict. The earlier treaty will
apply only to the extent that its terms are compatible with those of the later treaty.
Treaties often contain provisions about their relationship to subsequent treaties. "Conflict clauses"
or "savings clauses" can be used to prevent disputes. The clauses are used to record the intention of
negotiators and not leave the dispute to be resolved by the rules of the Vienna Convention. In the
environmental arena, the North American Free Trade Agreement (NAFTA) contains a unique clause,
Article 104, "Relation to Environmental and Conservation Agreements", which states that the
trade provisions in listed MEAs all "trump" NAFTA in the event of an inconsistency between their
provisions and those in NAFTA:
Nothing in this Agreement shall be construed to affect the existing rights and obligations
of the Parties under other international environmental agreements, including conservation
agreements, to which such Parties are party.
Other trade treaties, such as the WTO Agreements, do not contain similar provisions.
Another example of this type of clause appears in one of the Preamble paragraphs to the Biosafety
Protocol: emphasizing that this Protocol shall not be interpreted as implying a change in the rights and
obligations of a Party under any existing international agreements.
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3.4.9
registration and Publication
The United Nations Charter requires every treaty and every international agreement entered into by
any member of the United Nations to be first registered and then published by the United Nations
Secretariat. Over 40,000 treaties of all types (not just environmental) were registered with the UN
by 1998. In the ten years from 1988 to 1998, on average 1,200 treaties were registered each year. The
United Nations Treaty Series (UNTS) is the definitive published source for treaties. A treaty is not
published in the UNTS until it has entered into force and been registered.
3.4.10
Interpreting Treaties
The general rule of interpretation as set out in Article 31 of the Vienna Convention is that treaties
"shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its objects and purpose". If the treaty's meaning is
still ambiguous, obscure or manifestly absurd or unreasonable after reading the full treaty text and
any other agreements which may have been made between the Parties about the treaty, then other
interpretative aids may be used, such as the travaux preparatoires (preparatory works) for the treaty.
These rules of interpretation for treaties are similar to the rules used to determine the meaning of
domestic laws.
3.4.11
stages of Treaty-Making
MEAs can be proposed by an individual state, a small group of states, one or more nongovernmental
organizations, or, the most common method, by a resolution approved by the members of an inter-
governmental body, usually a UN body. UNEP's Governing Council initiated a number of MEAs,
including the Montreal Protocol, the Basel Convention, and the Convention on Biodiversity. In the case of
recent MEAs, it is usually up to governments to voluntarily contribute the financial support needed to
support the negotiations. It is generally not practical to launch and conduct negotiations without the
support of an international body.
Environmental treaties are driven by scientific consensus that action needs to be taken by the
global community. Treaties develop in stages, from the time the problem is identified through to full
implementation of the treaty at the national level.
The stages of developing a treaty typically are:
· Identification of the scientific problem;
· Building political consensus to address the problem;
· Convening global meetings to draft the treaty text by negotiation;
· Signing the completed treaty;
· Ratification, acceptance, approval or accession to the treaty (alternate procedures for making
the treaty binding on a state);
· The treaty comes into force;
· Elaborating on the treaty, or developing more detailed actions that must be taken, either in
a protocol to the treaty or through Plans of Action or programmes of work that set out what
needs to be done;
· Amendments to the treaty and expanding on the treaty secretariat's programme of work.
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Proceeding through these stages can happen relatively quickly, as with the ozone treaty regime that
was rapidly developed and implemented through domestic legislation in Canada. Or the process
can be very slow--the United Nations Convention on the Law of the Sea took 10 years to negotiate and
another 12 years before it came into force in 1994.
3.4.12
at a Treaty negotiation
The alphabet soup of acronyms used at MEA negotiations can be confusing to a neophyte.
The most common negotiating groups at MEA meetings are:
· The European Union (EU). The 27-member states of the EU (as of January 2007) coordinate a
single negotiating position at MEA meetings. Usually only one representative speaks for the
EU during the plenary session.
· JUSCANZ: Non-EU developed countries. The core is normally Japan, USA, Canada, Australia
and New Zealand but also can include Norway, Switzerland, Iceland, Korea, Mexico and
sometimes Israel. The group was formed to allow non-EU developed countries to coordinate
their positions. The JUSCANZ group may coordinate a negotiating position, but each state
which is part of the group speaks individually at the plenary session.
· G-77 and China. This group takes its name from the group of 77 developing countries which
was influential in the UN in the post-colonial period of the 1960s and 70s. The group now
includes virtually all developing countries, numbering over 130 states, and is subdivided into
geographic groups, e.g., Africa, Asia and Pacific, Latin America and the Caribbean.
· Eastern Europe. The countries of the Eastern Europe and most countries of the former Soviet
Union also meet as a group.
Other groups may play a role at negotiating meetings. For example, AOSIS is the Alliance of Small
Island States, an influential group at climate change meetings due to the direct and disproportionate
impacts that these states will suffer from climate change. The Umbrella Group was the name given
to the negotiating bloc representing most non-EU industrialized countries including Canada, Russia
and the US throughout the climate change negotiations. The Miami Group, a coalition of the major
exporters of genetically modified seed and crops including Canada, Argentina, Australia, Chile, the US
and Uruguay, played a significant role in the Biosafety Protocol negotiations. Other alliances emerge
and dissolve as the issues under discussion change.
A unique feature of the politics of MEA negotiations is that "most global environmental agreements
have been negotiated and adopted despite significant reservations ­ and in some cases, the
active opposition ­ on the part of the most powerful of all countries, the US, a situation that is
entirely inconceivable in the GATT/WTO context." The US actively opposed and is not a Party to
the Biodiversity Convention, for example. At the 2001 Bonn Climate Summit, the nations of the
world reached agreement on an implementation plan for the Kyoto Protocol, while the current US
administration has announced it does not plan to ratify the Protocol.
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3.4.13
key features of (environmental) Treaties
Most modern MEAs typically have the following main components:
1. An introductory preamble and statement of guiding principles.
2. A statement of objectives of the agreement.
3. Definition of key terms used in the treaty.
4. Substantive commitments by the Parties.
These commitments may be very specific, such as to reduce greenhouse gas emissions
by a specified amount within a set deadline, or more general, such as to identify threats
to biodiversity and attempt to eliminate these threats. The Canadian MEA database has
grouped commitments under these headings: assistance, compliance, conservation measures,
consultation, control measures, cooperation, development of science and technology,
education and training, emergency response, enforcement, exchange of information, financial
obligations, further international measures, general pollution control/prevention, impact
assessment, implementation, indigenous and local communities, monitoring, national
inventories, national legislation/policy development, notification, public participation and
information, remediation, reporting, review, scientific cooperation, sharing of benefits, trade
measures and transfer of technologies.
5. Provisions for regular meetings of the parties to develop and approve work programs, to
discuss implementation issues and to update the agreement through decisions, Protocols,
amendments or Annexes.
Decisions about the MEA are usually made at a periodic Conference of the Parties (COP)
or Meeting of the Parties (MOP). The term "Conference of the Parties" generally refers to
conferences of parties to a framework convention, while "Meeting of the Parties" is used for
meetings of parties to a Protocol. Combined meetings are referred to as "COP/MOPs". At
these meetings, the budget and programme of work to implement the treaty are established.
National reports on implementation are reviewed. A COP can also decide on the need for a
new Protocol to make more specific rules on one of the topics covered by the MEA. Another
COP function is to revise Annexes, or lists regulated by the treaty, such as the list of wetland
sites designated by the Ramsar Convention.
6. Provisions to establish a secretariat or similar organizational body with administrative and
coordinating functions. A secretariat acts as the host or home office for the treaty. Secretariats
for MEAs provide the ongoing support for meetings of the Parties and may also implement
projects or programmes of work. Many MEA secretariats are located in common locations,
such as Geneva, home to numerous other UN and trade organizations such as the WTO.
7. Provisions to establish Advisory bodies. Advisory bodies can be established by treaty or by
international organizations. For instance, the UNFCCC establishes a Subsidiary Body on
Scientific and Technological Advice (SBSTA). Despite its name, SBSTA is a highly political
forum that negotiates recommendations to the COP. In contrast, the WMO and UNEP set
up the Intergovernmental Panel on Climate Change (IPCC) as a truly scientific, independent
expert group to provide necessary technical and scientific advice to the international
community. Although the IPCC has a tradition of independence, there have been recent
criticisms that US interference has lead to selection of a chairperson affiliated with the oil
industry. Advisory bodies can also be created to deal with discrete issues, as for example, with
the Biodiversity Convention's Expert Panel on Access and Benefit Sharing.
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8. Reporting and information sharing obligations.
MEAs typically require Parties to report on their efforts to implement and comply, as well as to
share information through a Clearing House Mechanism (CHM) designed to collect and share
scientific, technical, environmental or legal information about the MEA. A CHM can promote
best practices, share experiences of different countries on implementation and share solutions
for common problems. The CHM of the Biodiversity Convention includes case studies, national
and other reports and information on programmes such as the Global Taxonomy Initiative.
Other examples of CHMs are found under the Montreal Protocol, the Global Plan of Action to
Address Land Based Sources of Marine Pollution and the POPs Convention.
9. Compliance mechanisms, including specific compliance and non-compliance procedures.
Compliance mechanisms range from minimal to sophisticated procedures. Compliance
provisions adopted under the Kyoto Protocol set a fairly high standard, establishing both
a process to facilitate compliance through assistance and a judicial process to make
determinations of non-compliance and impose consequences for non-compliance.
10. Dispute settlement provisions.
Dispute settlement mechanisms are underdeveloped. Only a few MEAs use a body unique
to the treaty, such as the Law of the Sea's International Tribunal on the Law of the Sea. Many
MEAs follow a graduated process for dispute resolution. The same untried non-binding
provisions are incorporated into most MEAs without much discussion. The Parties are bound
to try to settle their dispute by negotiation, then mediation, and if that doesn't work, they may
resort to a court, usually the International Court of Justice (ICJ), though resort to the ICJ is
generally seen as impractical and is rarely used.
11. A financial mechanism.
Financial mechanisms may be created by the terms of the treaty. One example is the
Multilateral Fund for the Implementation of the Montreal Protocol on Substances that
Deplete the Ozone Layer, established by an amendment to the Protocol in 1990. This Fund
distributes funds from developed country Parties to developing country Parties to help them
with the costs of compliance. Another financial mechanism, the Global Environment Facility
(GEF), jointly administered by the World Bank, UNEP and the UN Development Programme
(UNDP) is used to fund environmental projects with global benefits by developing countries
and countries in economic transition. The GEF is the designated financial mechanism for
international agreements on biodiversity, climate change and persistent organic pollutants,
and it also supports projects that combat decertification, protect international waters and
protect the ozone layer.
3.4.14
financing Meas
The costs of operating a secretariat, convening COPs, holding advisory body meetings, enabling
participation of civil society in treaty negotiations and carrying out programmes of work are high.
Various methods are used to finance these activities. Trust funds, composed of mandatory or voluntary
contributions from Parties, are the most common funding source. The actions required by MEAs may
also be funded by multilateral financial mechanisms, such as the GEF, the only new funding source
for international environmental commitments that has become operational since 1992. Most recent
MEAs have voluntary funding arrangements based on the UN scale of assessments (the amount that
each nation must pay as annual dues to support the United Nations, assessed by means of an agreed
on scale). Few MEAs benefit from any mandatory assessed funding from the UN's general budget.
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3.4.15
civil society Involvement in Meas
The term "Civil Society Involvement" or "CSO" generally refers to any non-profit, voluntary
citizens' group which is organized on a local, national or international level. Examples abound of
neighbourhood associations, producers associations, NGOs, and trade unions. The term civil society is
used increasingly to describe NGOs working for the public good. Perhaps more than any other branch
of international law, international environmental law is influenced by civil society groups at all stages
throughout the formation, negotiation, implementation and enforcement of agreements.
Civil society groups such as NGOs play multiple roles in MEAs, which have been classified by
UNEP as:
· Providing technical knowledge;
· Raising awareness;
· Assisting the secretariat in communicating with non-parties;
· Promoting implementation in the field;
· Gathering and transmitting information about possible non-compliance;
· Implementing relevant national policies;
· Pressuring governments to implement the MEAs; and
· Participating in the decision-making process.
No set of rules about participation applies universally to MEAs. The new regional UNECE Aarhus
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters may point the way towards standardization of public participation rules in the
domestic context, eventually paving the way for internationally agreed rules on public participation.
Most modern MEAs apply rules of procedure based on those developed for the Rio Earth Summit
that allow accredited NGOs to play an active role at MEA meetings. Participation is often limited
to lobbying delegates of Parties in the corridors of MEA meetings and observing the meetings.
Sometimes NGOs are given opportunities to address meetings. NGOs may also be excluded from
some treaty meetings if a state party objects, and have restricted participation rights in plenary
sessions of MEA meetings.
NGOs influence legal and policy developments by taking part in government delegations, preparing
law reform briefs and issuing report cards such as WCEL's recent report card on OECD nations' role in
climate change negotiations.
3.5
Principles of International environmental law
No general treaty establishes a framework and principles for international environmental law.
Instead, this body of law has developed piece-meal, in response to specific threats. Many concepts are
repeated in each new treaty, and various shared principles have emerged from the patchwork
of treaties.
The principles of international environmental law are evolving. Most of these principles are found in
bilateral or multilateral environmental agreements, but also in non-binding declarations, such as the
1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and
Development (also known as the "Rio Principles").
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Often, principles first set out in non-binding declarations are later translated into binding enforceable
treaties. A concept included in a binding treaty has more weight and authority than one that is
contained only in soft law declarations.
The following list of principles, emphasizing the Rio Principles, is meant to illustrate the wide range of
potential legal principles that may be included in international environmental law agreements and is
not exhaustive.
The sources of international law are enumerated in Article 38(1) of the Statute of the International Court
of Justice and, in addition to treaties, include customary international law, the general principles of law
recognized by civilized nations and as a subsidiary means for the determination of the law, even the
writings of the leading publicists.
The term "MEA" in the materials which follow refers to "Multilateral Environmental Agreements" of
which multilateral agreements involving water are one type.
3.5.1
sovereignty Over natural resources
Each state has sovereignty, or supreme controlling power, over its natural resources. Each state has the
right of possession and the right to freely manage and dispose of natural resources within the limits
of international law. Sovereignty should be exercised in an environmentally responsible way. The
sovereign right of control is limited by the state's duty to limit damage to the environment beyond its
borders.
Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration codify this principle.
These two related and linked concepts, sovereignty over natural resources and the duty not to cause
harm beyond national borders, are repeated in binding agreements such as UNCLOS, the Climate
Change Convention, and the Convention on Biological Diversity which says in Article 3:
"States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to their
own environmental policies, and the responsibility to ensure that activities within their
jurisdictions or control do not cause damage to the environment of other states or of areas
beyond the limits of national jurisdiction."
3.5.2
Duty to Prevent Transboundary Pollution and environmental Harm
The idea that states have a duty to not harm neighbouring states was first explored in the Trail
Smelter case in which a tribunal established by the International Joint Commission, an agency set up
by a Canada-US treaty, found that sulphur dioxide air emissions from a copper smelter in Trail, BC,
Canada were harming US territory.5 The case is one of the few examples of a tribunal establishing an
important principle of international environmental law and has been widely cited as confirming the
principle that a state is responsible for environmental damage to foreign countries that is caused by
activities within its borders. As noted above, the duty not to cause harm is often linked to the concept
of sovereign control over natural resources.
3.5.3
sustainable use of natural resources
This principle requires states to pay due care to the environment and to make rational use of the
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5 Trail Smelter Arbitration (1939) 33 AJIL 182 & (1941) 35 AJIL 684.

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natural resources within their jurisdictions. The concept has evolved over time, from Principle 2
of the Stockholm Declaration which states that: "the natural resources of the earth, including the
air, water, land, flora and fauna and especially representative samples of natural ecosystems, must
be safeguarded for the benefit of present and future generations through careful planning or
management, as appropriate", to Rio Principle 7 which says states shall cooperate to conserve, protect
and restore the health and integrity of the earth's ecosystem.
MEAs also incorporate this principle. Sustainable use is one of the three themes of the Biodiversity
Convention; the objective of the UN Fish Agreement is to "ensure the long-term conservation and
sustainable use of straddling fish stocks and highly migratory fish stocks"; and one of the objectives of
the International Tropical Timber Agreement is to encourage members to develop national policies aimed
at sustainable utilization and conservation of timber producing forests and their genetic resources.
3.5.4
sustainable Development
One of the key goals for MEAs is to ensure `sustainable development' defined by the Brundtland
Commission as "... development that meets the needs of the present without compromising the
ability of future generations to meet their own needs".
Sustainable development contains within it two key concepts:
· the concept of `needs', in particular the essential needs of the world's poor, to which overriding
priority should be given; and
· the idea of limitations imposed by the state of technology and social organization on the
environment's ability to meet present and future needs."
Rio Principle 4 states that in order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process. Rio Principle 8 links the achievement of
sustainable development to the reduction and elimination of unsustainable patterns of production
and consumption. Rio Principle 12 states that nations must cooperate to promote international trade
policies that will lead to economic growth and sustainable development in all countries. Predicating
sustainable development on economic growth is not a universally accepted position.
Environmental treaties referring to this principle include those on climate change. Notably, the treaty
which established the World Trade Organization and the treaty governing the European Union, also
list `sustainable development' as an objective.
3.5.5
right to a Healthy environment
As the Stockholm Declaration on the Human Environment notes, the environment is essential to
the enjoyment of basic human rights, even the right to life itself. There are many links between
environment and human rights, two major new branches of public international law which have
developed over the past half-century. No legally binding international right to a clean environment
yet exists, but the foundation for the future development of such a right has been laid.
With a global water crisis looming, extensive discussion has arisen debating whether water should
be designated a human right. However, the debate over the formal acknowledgement of water as a
human right and its global implications are beyond the scope of this manual.
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3.5.6
Precautionary approach
Preventing damage to the environment, natural resources and human health has become a key
concern of environmental law. The precautionary principle holds that where there are threats
of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation. The meaning of
this principle in international law is evolving. Rio Principle 15 states that in order to protect the
environment, the precautionary approach shall be widely applied by states according to their
capabilities. The Stockholm POPS Convention states in Article 1: "Mindful of the precautionary approach
as set out in Principle 15 of the Rio Declaration on Environment and Development, the objective of
this Convention is to protect human health and the environment from the effects of persistent organic
pollutants." The principle has also been adopted in the 2001 OECD Environmental Strategy.
3.5.7
common Heritage of Mankind/common concern of Humankind
Agreements relating to the global commons have included the principle of `common heritage of
mankind', most notably in the UNESCO World Heritage Convention, the Law of the Sea Convention and
the 1979 Agreement Governing the Activities on the Moon and Other Celestial Bodies. The concept applies
to resources in the global commons, those areas outside the recognized jurisdiction of any state, such
as the high seas, deep-sea bed, atmosphere, outer space and even Antarctica. All states share the
responsibility to protect the global environment, including areas within their own jurisdiction and
those in the global commons.
`Common heritage' has four characteristics: non-appropriation of resources by any one state,
international management of the global resources, sharing of benefits from the use of the resources,
and using the resources for peaceful purposes.
A weaker version of this principle, `common concern of humankind' is used in both the Climate
Change and Biodiversity Conventions in their preambles and in substantive provisions on burden
sharing, financing and transfer of technology. `Common heritage' was rejected by the drafters of these
Conventions, because developed countries objected to the resource benefit sharing implications, and
developing countries resisted the idea of international management of sovereign biological resources.
3.5.8
common but Differentiated responsibility
`Common but differentiated responsibilities' provides that states share common responsibilities
to protect the environment, but the actions they take to remedy these problems may be different
because not all states have contributed equally to causing environmental problems (i.e., climate
change caused by greenhouse gas emissions is largely due to the actions of industrialized, developed
countries) and not all states have similar resources to invest in environmental protection. Rio Principle
7 states that developed countries acknowledge the responsibility that they bear in the international
pursuit of sustainable development in view of the pressures their societies place on the global
environment and of the technologies and financial resources they command. The climate treaties
demonstrate the application of this principle through the differing commitments for developed and
developing countries to reduce emissions. Treating countries differently according to their economic
circumstances is also an integral part of trade agreements, expressed in the WTO Agreements as
`special and differential treatment'.
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3.5.9
Intergenerational equity
Recognition that the current generation holds the earth in trust for future generations, and that
the environment must be managed to meet the needs of both present and future generations, is a
relatively new concept in international law. Intergenerational equity is based on three principles:
1. Each generation should be required to conserve the diversity of natural and cultural resource
base so it does not unduly restrict the options available to future generations;
2. Each generation should maintain the planet's quality so that it is bequeathed on balance in no
worse condition than received; and
3. Members of every generation should have comparable rights of access to the legacy of past
generations and should conserve this access for future generations.
Both the Stockholm and Rio Declarations refer to future generations (Principles 1 and 2, respectively).
The Stockholm POPs Convention is an example of a treaty that incorporates this principle.
3.5.10
Public Participation
Procedural principles are common to many MEAs, emphasizing the "three pillars" of environmental
democracy: public participation, access to information, and access to justice. These are found, among
other places, in Rio Principle 10, which states that environmental issues are best handled with the
participation of all concerned citizens.
Significant procedural rights are also included in the regional UN Economic Commission for Europe
"Aarhus Convention on Access to Information, Public Participation in Environmental Decision-Making and
Access to Justice in Environmental Matters".
3.5.11
Polluter Pays
This principle requires polluters to pay the full costs of remedying the damage they cause to the
environment. The cost of pollution prevention and control should be internalized or reflected in the
cost of goods and services which cause pollution or environmental damage. Rio Principle 16 asks
states to internalize environmental costs and to use economic instruments for this purpose. First
used by the OECD in the 1970s, this term is found in Agenda 21, many MEAs, and many national
environmental laws.
3.5.12
liability and compensation for environmental Damage
Stockholm Principle 22 concerns compensation, and says that states shall cooperate to develop
international law regarding liability and compensations for victims of pollution and other
environmental damage. Twenty years later in Rio, states called for "expeditious" and "determined"
progress on these issues in Rio Principle 13. The Basel Protocol on Liability and Compensation for
Damage Resulting from Transboundary Movements of Hazardous Waste and Their Disposal is an example
of this principle in practice. Funds established under two International Maritime Organization (IMO)
treaties, the 1992 Civil Liability Convention for Oil Pollution and the 1992 International Convention
on the Establishment of an International Fund for Compensation for Oil Pollution Damage compensate
victims of oil pollution from ships. Two other IMO conventions on liability for damage from carriage
of hazardous and noxious substances and bunker oil pollution are not in force as of 2002. In 2002,
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3
UNEP renewed efforts to clarify the international law on liability and compensation for environmental
damage and transboundary harm.
3.5.13
Duty to conduct environmental Impact assessments
Assessing the probable impacts of new projects, policies or plans on the environment in advance
of granting final approval is an established part of the decision-making process of most states and
international agencies. The duty to conduct environmental impact assessments (EIAs) is found
in many environmental treaties such as the Biodiversity and Climate Change Conventions. Impacts
should ideally be assessed as early as possible before irrevocable decisions are taken and should
not be limited solely to impacts within a state's own territory. One regional treaty, the Convention on
Environmental Impact Assessment in a Transboundary Context, also known as the Espoo Convention, has
been developed to address transboundary EIA.
3.5.14
Duty of non-discrimination/environmental Justice
This principle requires states not to discriminate in relation to environmental harm. Rio Principle 14
holds that states should discourage the relocation or transfer to other states of activities or substances
that cause environmental degradation. The North American Free Trade Agreement (NAFTA) includes this
principle in Article 1114 stating that the Parties agree it is inappropriate to encourage investment by
relaxing domestic health, safety or environmental measures.
3.5.15
right to Development
The right to development is a highly contested concept and is the topic of annual battles at the UN
Commission on Human Rights. Its meaning and implications have not been defined and it is not
part of any of the six "core" human rights treaties. The right to development was established in a UN
General Assembly Declaration in 1986, which states that `the right to development is an inalienable
human right by virtue of which every human person and all peoples are entitled to participate in,
contribute to, and enjoy economic, social, cultural and political development, in which all human
rights and fundamental freedoms can be fully realized.' It was reaffirmed at the Vienna Conference
on Human Rights in the 1993 Vienna Declaration and Programme of Action. Rio Principle 3 also restates
this right. There is no internationally agreed or legally accepted definition of the right, though the
UN Commission on Human Rights has established a dual mechanism to explore in greater depth
ways of implementing the right to development: an open-ended Working Group on the Right to
Development and an independent expert on the right to development.
3.5.16
Other Principles
This listing of principles is not exhaustive. The Rio Declaration contains other principles such as
cooperation to eradicate poverty, enacting effective environmental legislation, the role of youth,
women and indigenous people and the peaceful resolution of disputes. Since Rio, experts have listed
principles of international sustainable development law, and have also attempted, unsuccessfully to
date, to codify these principles.
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3.6
International water law6
International water law may take either of two general forms, treaty law or customary international
law. If states sharing international freshwater resources are not parties to an applicable treaty, their
rights and obligations are governed by customary international law.7
The most salient international water law treaty, even though not in force yet, is that which was
concluded under United Nations auspices in 1997. It is entitled the United Nations Convention on the
Law of the Non-navigational Uses of International Watercourses.8 The UN Convention is generally
regarded as reflecting the fundamental rules of customary international law applicable in the field.
This proposition was reinforced by the judgment of the International Court of Justice in the Case
Concerning the Gabcíkovo - Nagymaros Project (Hungary/Slovakia).9
Also of key historical importance are the 1966 Helsinki Rules.10
A number of key terms are generally used in international water law including:
"Watercourse": The term used in the UN Convention to refer to a river, stream, or lake, as well as
many types of aquifers, is "watercourse". This term is also in general use internationally. However, this
expression should not be conceived of restrictively, for example, as applying only to the main stem
of a stream. Instead, it refers to the entire system of waters in a drainage basin or catchment. Thus it
would include tributary flows, whether consisting of surface water or groundwater.
The UN Convention defines the term "watercourse" in the following way:
"Watercourse" means a system of surface waters and ground waters constituting by virtue of their
physical relationship a unitary whole and normally flowing into a common terminus.11
While it may seem to refer only to the "course", channel or bed in which water flows, the term
"watercourse" is taken to embrace both the water and the bed, aquifer, etc., in which it is
physically contained.
6 The material in this section relies on materials originally developed by Professor Stephen McCaffrey included in Stephen McCaffrey, The
Law of International Watercourses (2001)
7 See: Caponera, Dante A., The Role of Customary International Water Law, in Water Resources Policy for Asia 365, 367-68, 372, 380-81
(M. Ali, G. Radosevich & A. Khan eds., 1985). SEE APPENDIX G
8 United Nations, 21 May 1997, annexed to U.N. Doc. A/RES/51/229, of 8 July 1997. SEE APPENDIX A.
9 1997 ICJ 7, judgment of 25 Sept. 1997.
10 The Helsinki Rules (Campioni Consolidation) and the Commentary to the Helsinki Rules on the Uses of the Waters of International
Rivers, ILA Report of the Fifty--Second Conference, Helsinki 1966, at 484, 484-505 (1966, 1987): Arts. J-XI, 4. SEE APPENDICES C and D.
Coming from the non-governmental International Law Association (ILA), the Helsinki Rules, a predecessor to the 1997 UN Watercourses
Convention, are not intergovernmentally authoritative, technically speaking. However, they reflect many years of research by a
representative body of international law experts, and therefore come within the terms of Article 38(i.)(d) of the Statute of the International
Court of Justice.
11 UN Convention, art. 2(a).
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An "International Watercourse" is a "watercourse" that is shared by two or more countries. The UN
Convention defines this term as follows: "International Watercourse" means a watercourse, parts of
which are situated in different States.12
The breadth of these definitions means that the rules of international law concerning shared
freshwater apply to any and all "parts" of an international watercourse that may be located in a given
country. Thus they would apply, for example, to: headwaters or tributaries in State A of a stream that
flows into State B; a groundwater basin that straddles the border between States A and B and is fed by
surface water in State A;13 or a groundwater basin wholly located in State A that feeds a tributary of a
stream flowing into State B.
3.6.1
general rules of law concerning the use of International watercourses
According to McCaffrey there are several rules of international law of a general and fundamental
nature that govern the conduct of states in relation to international watercourses.
The most basic of these are the following requirements:
· A state use an international watercourse in a way that is "equitable and reasonable" vis-ŕ-vis
other states sharing the watercourse.
· International watercourse states take "all appropriate measures" to prevent the causing of
"significant harm" to co-riparian states.
· The requirement that international watercourse states provide "prior and timely notification"
to other international watercourse states concerning any "new use or change in existing uses"
of an international watercourse, together with relevant technical information, and that it
"consult" with the other international watercourse states.
It is probable that there is also an emerging rule requiring the protection of the ecosystems of
international watercourses.
The following paragraphs provide an overview of these general rules and some of their implications.
12 UN Convention, art. 2(b).
33
13 There is some question as to the extent to which the rules of international law described herein apply to so-called "confined
transboundary groundwater" ­ i.e., groundwater intersected by an international boundary that does not interact in any way with surface
water or other groundwater. The UN International Law Commission, which prepared the draft upon which the UN Convention is based,
made this form of groundwater the subject of a separate resolution. That resolution, however, recommends that states, in their relations
concerning confined transboundary groundwater, be guided by the principles governing international watercourses.

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3.6.2
equitable utilization
According to McCaffrey, there is no more fundamental rule of international law concerning the use
of international watercourses than that of equitable and reasonable utilization. In its judgment in the
Danube Case the International Court of Justice referred to the "basic right" of a state to "an equitable
and reasonable sharing of the resources of an international watercourse."14
This obligation requires each riparian state to ensure, in an ongoing manner, that its use is equitable
and reasonable vis-ŕ-vis other riparian states. What is equitable and reasonable in any given case
may be determined only by taking into account all relevant factors and circumstances ­ both natural
(climate, hydrography, etc.) and human-related (social and economic needs of the riparian states,
effects of uses in one state on co-riparians, existing and potential uses, etc.).15
How States value water is an especially relevant issue for resolving conflicts and negotiating over
transboundary freshwater resources. The idea of valuation often is at the core of disputes over fresh
water resources pitting farmers against municipalities, businesses against environmentalists, and
those who have fresh water against those who don't.
Furthermore, conditions may change over time producing consequential changes in the weight
assigned to given factors. For example, a drought would reduce the available water supply; a
population increase would result in greater need for water; etc. Maintaining a regime of utilization
that is equitable in relation to other riparian states is therefore necessarily a dynamic process. It
requires regular communication between the countries sharing the watercourse ­ communication
regarding data and information relating to the condition of the watercourse (flow and any regulation
thereof, pollution, meteorological factors that could influence utilization, etc.) and regarding any new
projects or changes in existing uses. Many countries sharing international watercourses have found
that this kind of systematic communication may be effectively and efficiently accomplished through a
joint management mechanism, such as a commission.
Absent such an organization or some other system allowing regular communication, it can be
challenging at best to maintain a regime of utilization that is equitable vis-ŕ-vis a state's co-riparians.
3.6.3
equitable participation
Often a river or other form of watercourse will be used so intensively by co-riparian states that it will
be necessary for them to take affirmative steps, such as construction or maintenance of works or other
forms of regulation of the watercourse, to make it possible for other riparians to utilize the shared
watercourse equitably. This notion is captured in the concept of "equitable participation", a principle
reflected in the UN Convention.16 In the Danube Case the International Court of Justice laid stress on
the importance of equitable participation in the "common utilization of shared water resources for the
achievement of the several objectives mentioned in the Treaty [in question]".17
14 1997 ICJ p. 54, para. 78.
15 UN Convention, art. 6.
16 See art. 5(2) of the UN Convention, setting forth this concept. See also Paisley, Richard Kyle, "Adversaries into Partners: International
Water Law and Down Stream Benefits". 3 (2) Melbourne Journal of International Law 280 (2002).
17 1997 ICJ p. 80, para. 147. The objectives referred to included hydropower production, improvement of navigation, protection from floods
and protection of water quality and riverine ecosystems
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International law in context
3.6.4
Prevention of significant Harm
According to McCaffrey, it is a fundamental rule of international law that one state should not cause
"significant harm" to another. This principle has been recognized in several important decisions in
international cases.18 However, the application of the principle to international watercourses is highly
controversial. While it is clear that one state may not intentionally cause harm to another through, for
example, flooding or deliberate releases of toxic pollution, there is dispute about whether one state's
use that reduces the available supply in another state is prohibited by this norm.
The better view is that the latter situation is governed first and foremost by the principle of equitable
utilization: if harm is caused through a pattern of utilization that is otherwise equitable, it should not
be prohibited.
Otherwise, for example, a later-developing upstream state would be prevented from developing the
portion of an international watercourse in its territory to the extent that such development impaired
existing uses in downstream states. This view ­ that in respect of apportionment the principle of
equitable utilization prevails over that of harm prevention if the two come into conflict ­ would
appear to be borne out by the UN Convention.19
Moreover, the International Court of Justice in the Danube Case referred only to the principle of
equitable utilization when addressing the parties' respective rights to the uses and benefits of the
river; the principle of prevention of harm figured only, although importantly, as a constraint on actions
that would affect the environment of other states.
Regardless of its relationship to equitable utilization, the duty to prevent significant harm to other
states is not absolute; it requires that a country exercise its best efforts20 to prevent harm. Whether
a state has complied with this obligation will thus be, in part, a function of its capability to do so.
Presumably, therefore, developing countries would generally have more leeway in this regard than
developed countries by virtue of the greater capacity of the latter to prevent harm to co-riparians.
3.6.5
rules concerning new uses
Although it has been controversial in the past, today there is little doubt that customary international
law requires a state planning a new use to provide notice thereof to other states that the use might
adversely affect.
This rule applies to all projects that have the potential to change the regime of the watercourse in a
way that would be prejudicial to other riparian states. In its classical conception it applies to projects
(including both new uses and changes in existing uses) that may have adverse factual impacts upon
other states. More recently it has been recognized that adverse legal effects should also be covered by
the rule. Thus, for example, a planned project in a downstream state might, when implemented, make
it impossible for an upstream state to implement a project of its own without running the risk that its
project would result in its overall utilization being considered inequitable. Because of this possibility,
notification should be provided to co-riparian states of all planned projects of significance, even if they
do not have the potential for causing adverse factual effects in those states.
Once notification has been provided, the state in which the project is planned has a duty to consult
with the potentially affected state or states. The planning and potentially affected states are expected
to arrive at an equitable resolution of any differences between them with regard to the project.
35
18 Chiefly the Trail Smelter, Lake Lanoux, and Corfu Channel cases.
19 See art. 7 of the UN Convention, and especially para. 2 of that article.
20 Article 7 of the UN Convention requires states to "take all appropriate measures" to prevent harm to other states.

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International law in context
3.6.6
rules concerning Pollution
The UN Convention provides that states sharing an international watercourse have an obligation
to protect and preserve the watercourse's ecosystems. While this obligation is not tied to harm to
other states, it seems unlikely that a co-riparian would assert a violation unless it had suffered some
harm. More specifically, states are required to prevent, reduce and control pollution that may cause
significant harm to co-riparians. Like the obligation to prevent significant harm, this duty is one of
due diligence.
3.6.7
The special case of shared groundwater
According to McCaffrey, the rules discussed above apply to all components of an international
watercourse system, including groundwater. However, in view of the different characteristics of
groundwater, the rules may apply somewhat differently. The UNILC has produced 19 draft articles
for the management and utilization of transboundary aquifers. Those articles are currently under
review and represent and UNILC's effort to interpret and, where appropriate, progressively develop
international law on the subject. However, this is a developing area of the law and therefore it is not
clear to what extent the existing rules, or their application, differ in the case of groundwater.
According to McCaffrey, it does seem possible to arrive at certain general conclusions:
First, the obligation of equitable and reasonable utilization applies equally to
surface and groundwater. Second, the obligation to prevent significant harm may
be somewhat more stringent in the case of groundwater because of the greater
importance of prevention where it is concerned; harm occasioned through an
aquifer often takes longer to remedy than in the case of surface water. This is
particularly the case with pollution, which may cause contamination of an aquifer
that cannot be remedied for many years, if at all. And third, the special characteristics
of groundwater make close cooperation between states sharing it particularly
important. Prior notification, the sharing of data and information on a regular basis,
and where possible, the establishment of joint management mechanisms take on
greater significance with regard to shared groundwater.
3.6.8
links with world bank Procedures
There are at least three key World Bank documents that are relevant to the law of international
watercourses:
· Bank Operational Policies (OP 7.50): Projects on International Waterways.
· Bank Procedures (BP 7.50): Projects on International Waterways.
· Bank Good Practices (GP 7.50): Projects on International Waterways.
These documents indicate Bank policy and set forth procedures to be followed in respect of projects
on international watercourses.
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The documents essentially provide that:
· International water rights issues be assessed as early as possible in project identification; and
· The Bank advise the state proposing the project that it should formally notify the other states
sharing the watercourse of the proposed project, including project details, if it has not already
done so. (BP 7.50, paras. 1 and 2.)
The information provided should be sufficient to enable the other states to determine whether the
proposed project has potential for causing appreciable harm through water deprivation or pollution or
otherwise.
If other states object, the Bank assesses the objection and decides whether and how to proceed. The
opinion of independent experts may be sought if needed.
These procedures are generally consistent with the law of international watercourses.
SEE APPENDIX B
3.6.9
bibliography
International Watercourses: Enhancing Cooperation and Managing Conflict, Proceedings of a World Bank
Seminar, edited by Salman M.A. Salman & Laurence Boisson de Chazournes, World Bank Technical
Paper No. 414 (1998).
Groundwater: Legal and Policy Perspectives, Proceedings of a World Bank Seminar, edited by Salman
M.A. Salman, World Bank Technical Paper No. 456 (1999).
The Law of International Drainage Basins, edited by A.H. Garretson, R.D. Hayton & C.J. Olmstead
(1967).
Lucius Caflisch, "Regles generales du droit des cours d'eau internationaux", The Hague Academy of
International Law, Recueil des Cours, 1989-VII, vol. 219 (1992).
Bonaya Adhi Godana, Africa's Shared Water Resources: Legal and Institutional Aspects of the Nile, Niger
and Senegal River Systems (1985).
J.G. Lammers, Pollution of International Watercourses: A Search for Substantive Rules and Principles of Law
(1984).
Stephen McCaffrey, The Law of International Watercourses (2001).
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negotiations and conflict resolution
4
negOTIaTIOns anD cOnflIcT resOluTIOn
The objective of the next chapter is to build a common vocabulary and understanding of conflict
dynamics and analysis and negotiation techniques. It will also provide the opportunity to apply
this learning in a variety of increasingly sophisticated and complex negotiation simulation exercises
including those involving international watercourses.
Each section of this chapter is a separate learning unit and contains multiple sections which detail key
ideas or skills that are needed by decision makers, negotiators, or third party neutrals. The chapters
are ordered in a building-block fashion; therefore, an understanding of material presented later in the
resource manual is often dependent upon information described in earlier sections.
4.1
Introduction
Negotiation is one of the most common approaches used to make decisions and manage disputes.
Negotiation occurs between spouses, parents and children, managers and staff, employers and
employees, professionals and clients, within and between organizations and between agencies and
the public. Negotiation is a problem-solving process in which two or more people voluntarily discuss
their differences and attempt to reach a joint decision on their common concerns. Negotiation
requires participants to identify issues about which they differ, educate each other about their needs
and interests, generate possible settlement options and bargain over the terms of the final agreement.
Successful negotiations generally result in some kind of exchange or promise being made by the
negotiators to each other. The exchange may be tangible, such as money, a commitment of time or a
particular behaviour, or intangible, such as an agreement to change an attitude or expectation or an
apology.
Negotiation is the principle way that people redefine an old relationship that is not working to their
satisfaction or establish a new relationship where none existed before. Because negotiation is such
a common problem-solving process, it is in everyone's interest to become familiar with negotiating
dynamics and skills. This chapter is designed to introduce you to some basic concepts of negotiation
and to present procedures and strategies that generally produce more efficient and productive
problem solving.
Negotiation is important in the context of international water law. International watercourses
can be either a source of cooperation of conflict. The very process of reaching an understanding
creates a stabilizing and more transparent atmosphere. Negotiation alone serves to widen political
participation, build political stability, and spread confidence between the basin states. Even where
the parties fail to reach a definite agreement or agree only to share information or exchange data,
negotiation can lead to increased trust and confidence. Cooperation on transboundary water issues
catalyzes regional cooperation which is important to the resolution of many serious water problems.
This can then pave a way for cooperation in other domains, such as politics, economics, and
environmental conservation. Negotiation and transboundary water agreements can help countries
move away from the detrimental view that water conflicts are a zero-sum game. If negotiation is
successful, each party will benefit.
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4.2
conditions for negotiation
A variety of conditions can affect the success or failure of negotiations. According to a recent article in
the July 30th, 2006 edition of the New York Times:
The basics: when the Table Itself is a negotiating Ploy21
When Secretary of State Condoleezza Rice met in Rome last week with European and Middle Eastern
diplomats to discuss the Israeli-Hezbollah conflict, the talks sputtered over a few words. Ms. Rice
wanted the diplomats' communiqué to urge governments to "work immediately" for a cease-fire, while
most of the other negotiators wanted it to urge work toward an "immediate cease-fire." The dispute,
which was resolved in Ms. Rice's favor after an hour or so, wasn't the first time that diplomatic
negotiations have hinged on small details. Many of them have nothing to do with language. Here are
some examples.
sTIckIng POInT
exaMPle
wHaT HaPPeneD
Shape of Table
1969 Vietnam War
· Months of discussion over merits of a round versus a
Peace Talks
square table.
· The compromise: a round table flanked by smaller square tables.
Speaking Time
1991 Mid East
· Israel objected to both Jordan and Palestine leaders of joint
Peace Talks
delegation getting 45 minutes each for opening speeches.
Venue
2001 Israeli Palestine
· Two sides spent weeks arguing over choice of Egypt or Erez
Truce Talks
crossing between Israel and Gaza.
2006 Sri Lanka
· Government and Tamil rebels disagreed over numerous
Peace Talks
proposed sites, including Japan, Oslo and Sri Lanka's
main airport.
Seating Arrangements
1648 Peace of Westphalia
· Delegates took six months to decide who would enter the
1994 Irish Peace Talks
negotiating room first.
· Manoeuvring over who would sit next to Gerry Adams of Sinn
Fein, the IRA political wing.

The following conditions generally make success in negotiations more likely:
Identifiable parties who are willing to participate.
The people or groups who have a stake in the negotiations must be identifiable and willing to sit
down at the bargaining table if productive negotiations are to occur. If a critical party is either absent
or unwilling to commit to good faith bargaining, the potential for agreement will decline.
Interdependence.
For productive negotiations to occur, the participants must be dependent upon each other to have
their needs met or interests satisfied. The participants need either each other's goodwill, or restraint
of negative action, for their interests to be satisfied. If one party can get his/her needs met without the
cooperation of the other, there will be little impetus to negotiate.
readiness to negotiate.
People must be ready to negotiate for dialogue to begin. When participants are not psychologically
prepared to talk with the other party or parties, when adequate information is not available or when a
negotiation strategy has not been prepared, people may be reluctant to begin the process.
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Means of influence or leverage.
For people to reach an agreement over issues about which they disagree, they must have some means
to influence the attitudes and/or behaviour of another negotiator. Often influence is seen as the
power to threaten or inflict pain or undesirable costs, but this is only one way to encourage another
to change. Asking thought provoking questions, providing needed information, seeking the advice
of experts, appealing to influential associates of a party, exercising legitimate authority or providing
rewards are all means of exerting influence in negotiations. Negotiation is one of the most common
approaches used to make decisions and manage disputes.
agreement on the issues and some interests.
People must be able to agree upon some common issues and interests for progress to be made in
negotiations. Generally, participants will have some issues and interests in common and others that
are of concern to only one party. The number and importance of the common issues and interests
influence whether negotiations begin and terminate in agreement. Parties must have enough issues
and interests in common to commit themselves to a common decision-making process.
will to settle.
For negotiations to succeed, participants have to want to settle. If continuing a conflict is more
important than settlement, or if maintaining the conflict is useful to one or more parties, then
negotiations are doomed to failure. Often parties want to keep conflicts going to preserve a
relationship (a negative one is better than no relationship at all), to mobilize public opinion or support
in their favour or to maintain a conflict relationship which gives meaning to their lives. These factors
promote continued division and work against settlement. The negative consequences of not settling
must be more significant and greater than those of settling for an agreement to be reached.
unpredictability of outcome.
People negotiate because they need something from another person. They also negotiate because
other means of resolution are unpredictable as to outcome. For example, if by going to court, a person
has a 50/50 chance of winning, he or she may decide to negotiate rather than take the risk of losing.
Negotiation is more predictable than court because if negotiation is successful, the party will at least
win something. Chances for a decisive and one sided victory need to be unpredictable or minimal for
parties to enter into negotiations.
a sense of urgency and deadline.
Negotiations generally occur when there is some pressure or urgency to reach a decision. Urgency
may be imposed by either external or internal time constraints of potential negative or positive
consequences if settlement is or is not reached. External constraints include: court dates, imminent
executive or administrative decisions, or predictable changes in the environment. Internal constraints
may be artificial deadlines selected by a negotiator to enhance the motivation of another to settle.
For negotiations to be successful, the participants must jointly feel a sense of urgency and be aware
that they are vulnerable to adverse action or loss of benefits if a timely decision is not reached. If
procrastination is advantageous to one side, negotiations are less likely to occur, and if they do, there
is less impetus to settle.
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negotiations and conflict resolution
no major psychological barriers to settlement.
Strong emotions, feelings about another party and psychological readiness to negotiate can sharply
affect a person's ability to bargain with another party. Psychological barriers to settlement must be
lowered if successful negotiations are to occur.
Issues must be negotiable.
For successful negotiation to occur, negotiators must believe that there are acceptable settlement
options open to them as a result of participation in the process. If negotiations appear to have only
win/lose settlement possibilities so that a party's needs will not be met as a result of participation,
he/she will be reluctant and, in fact, will have little reason to enter into dialogue.
The people must have the authority to decide.
For a successful outcome, participants must have the authority to actually make a decision. If they
do not have a legitimate and recognized right to decide, or if a clear ratification process has not been
established, negotiations will be limited to information exchange.
a willingness to compromise.
Not all negotiations require compromise. On occasion, an agreement can be reached which meets
all the participants' needs and does not require a sacrifice on any party's part. In other disputes,
compromise, or willingness to have less than 100 percent of needs or interests satisfied, may be
necessary for the parties to reach a satisfactory conclusion. Where the physical division of assets,
strong values or principles preclude compromise, negotiations are not possible.
The agreement must be reasonable and implementable.
Some settlements look good regarding substance, but may be impossible to implement. Participants
in negotiations must be able to establish a realistic and workable plan to carry out their agreement if
the final settlement is to be acceptable and hold over time.
external factors favourable to settlement.
Often factors external to negotiations inhibit or encourage participants regarding settlement.
Views of associates or friends, the political climate of an institution, public opinion, or economic
conditions may foster agreement or continued turmoil. Some external conditions can be managed
by negotiators while others cannot. Favourable external conditions for settlement should be
developed whenever possible.
resources to negotiate.
Participants in negotiations must have the interpersonal skills necessary for bargaining and, where
appropriate, the money and time to engage fully in procedure dialogue. Inadequate or unequal
resources may block the initiation of negotiations or hinder settlement.
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4.3
Types of negotiation
Any negotiation between more than two people may involve multiple bargaining relationships. In this
section we will look at the following types of negotiations:
· Horizontal or in-team negotiations.
· Vertical negotiations with superiors or constituents.
· Vested interest negotiations.
· Conciliatory negotiations.
· Sidebar negotiations.
· Subcommittee negotiations.
· Bilateral or multilateral negotiations.
· External negotiations.
4.3.1
Horizontal or In-Team negotiations
These negotiations occur between members of a negotiation team. They are necessary to coordinate
individual actions and meld the people involved into a smoothly functioning team. Team members
may differ as to authority, substantive expertise and negotiation or communication skills. In-team
negotiation enables diverse members to:
· Bargain on items of personal concern.
· Arrive at a group definition of the problems to be handled in joint session.
· Develop settlement options that have broad team acceptance.
· Develop individual and team strategies.
· Assign roles and responsibilities.
In-team decision making is usually handled by reaching a consensus, as it is imperative for team
members to be able to support and present verbally a common viewpoint on issues in joint sessions.
Command decisions and voting are usually not efficient or appropriate for in-team negotiations since
they may produce undesirable divisions on the team.
Horizontal or In-Team Negotiations
1
2
3
4
5
Party A
1
2
3
4
5
Party B
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negotiations and conflict resolution
4.3.2
vertical negotiations
Frequently, the parties at the table do not have absolute authority to make a final decision on an issue
in question. The parties may have to check with others to gain final approval. Vertical negotiations take
two forms: 1) bureaucratic bargaining and 2) constituency bargaining.
Bureaucratic bargaining occurs when a team must gain approval from parties higher in an
organization for an agreement to be finalized. Most bureaucratic organizations see negotiators as
representatives of the organization, but not final decision-makers. Negotiators at the table often have
to develop ratification procedures internal to the organization.
Constituent bargaining occurs when the parties at the table represent a larger group. For final
approval of a settlement, the broader group must approve the agreement developed by the team
at the table. The approval process most commonly used to determine constituent satisfaction is
voting. Labour/management contracts or settlements developed by public interest groups in public
policy dialogues are classic examples of settlements that must have constituent approval before the
agreement can be formalized.
Vertical Negotiations
1
2
3
4
5
Party A
1
2
3
4
5
Party B
Constituent Bargaining
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4.3.3
vested Interest negotiations
On occasion, an individual may decide to negotiate with members of another team "under the table"
or without his or her own team's knowledge. The individual "sells out" his or her team, organization or
wider public for exclusively personal benefits. While this form of negotiation is not recommended, it is
important for team members to be aware of the possibility of its occurrence and the costs that it may
impose on the team or organization.
In this case #4 of Party A negotiates with #3 of Party B.
Vested Interest Negotiations
1
2
3
4
5
Party A
1
2
3
4
5
Party B
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negotiations and conflict resolution
4.3.4
conciliatory negotiations
Conciliatory negotiations occur when one or more parties, with the knowledge and approval of
team members, hold informal private conferences with a member or members of another team
in an effort to narrow the distance between the parties on substantive issues about which they
disagree. Conciliatory negotiations usually occur between people who are quasi-mediators since
they can understand and interpret the interests of an opposing party to the members of the Party of
the conciliatory bargainer. Conciliatory negotiators also often have crosscutting interests or values
which allow them to develop some ties with the opposing party. This quality enables the conciliatory
negotiator to see conflicting issues as "grey" rather than black and white.
Here #3 of Party A bargains with #2 of Party B in an attempt to better understand each team's interests
and help develop potential opportunities.
Conciliatory Negotiations
Informal
1
2
3
4
5
Party A
Private
3
Conference
2
1
2
3
4
5
Party B
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4.3.5
spokesperson negotiations
Spokesperson or "sidebar" negotiations occur when the spokespeople for each team meet in private
to determine if they can reach an agreement. This approach often promotes settlement because the
complications of having multiple people at the negotiation table are minimized and the pressure for
posturing by spokespeople, or the need to perform in front of an audience (their team), are lessened.
Spokesperson Negotiations
Informal
Private
1
2
3
4
5
Party A
Meeting
3
2
1
2
3
4
5
Party B
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negotiations and conflict resolution
4.3.6
subcommittee negotiations
Frequently negotiations between large teams are cumbersome. A large group is not an efficient
structure for refining or narrowing ideas, breaking deadlocks or drafting final settlement language.
A subcommittee, composed of members of opposing parties, may be authorized by teams to meet
privately to develop recommendations that can be brought back to the whole group for discussion
and approval.
Subcommittee Negotiations
Small
2
Group
1
2
3
4
5
Party A
Meeting
1
2
1
1
2
3
4
5
Party B
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4.3.7
bilateral or Multilateral negotiations
Bilateral or multilateral negotiations are the formal discussions between teams of spokespeople
across the table. These negotiations, often called joint sessions, may or may not be where the
decisions are made. Bilateral or multilateral negotiations are often more formal sessions where
the parties educate each other about the issues, put forth proposals and ratify final decisions.
Bi-lateral Negotiations
1
2
3
4
5
Party A
1
2
3
4
5
Party B
Multi-lateral Negotiations
Government Agency
1
2
3
4
5
Private
Company
1
1
2
2
3
3
1
2
3
4
5
Environmental Groups
Private Company
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4.3.8
external negotiations
External negotiations occur between the parties at the table and parties who are not present in
the direct bargaining yet are concerned about the outcome of the discussions. The press, trade
associations, interested governmental agencies, neighbours and extended families have all engaged
in extended negotiations with parties at the table in such issues as the release of information, limits
on the duration of the bargaining and limits or expansion of the scope of the issues being discussed at
the table.
External pressures and corresponding negotiations are often critical structural variables which
influence the success or failure of negotiations.
External Negotiations
Demonstrations
Trade Associations
Press
1
2
3
4
5
Party A
1
2
3
4
5
Party B
Other Public
Interest Groups
Other Govermental Agencies
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4.4
Positional bargaining
4.4.1
what Is Positional bargaining?
Positional bargaining is a negotiation strategy in which a series of positions, alternative solutions
that meet particular interests or needs, are selected by a negotiator, ordered sequentially according
to preferred outcomes and presented to another party in an effort to reach agreement. The first, or
opening position, represents that maximum gain hoped for or expected in the negotiations. Each
subsequent position demands less of an opponent and results in fewer benefits for the person
advocating it. Agreement is reached when the negotiators' positions converge and they reach an
acceptable settlement range.
4.4.2
when Is Positional bargaining Often used?
· When the resource being negotiated is limited (time, money, psychological benefits).
· When a party wants to maximize his/her share in a fixed-sum pay-off.
· When the interests of the parties are not interdependent, are contradictory or are
mutually exclusive.
· When current or future relationships have a lower priority than immediate substantive gains.
4.4.3
attitudes of Positional bargainers
1. Resource is limited.
2. Other negotiator is an opponent­­ be hard on him/her.
3. Win for me means a loss for you.
4. Goal is to win as much as you can.
5. Concessions are a sign of weakness.
6. There is a right solution­­ mine.
7. Be on the offensive at all times.
4.4.4
How To Do Positional bargaining
1. Set your target point: the solution that would meet all your interests and results in complete
success for you. To set the target point, consider:
i.
Your highest estimate of what is needed. (What are your interests?)
ii. Your most optimistic assumption of what is possible.
iii. Your most favourable assessment of your bargaining skill.
2. Make your target point into your opening position.
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3. Set your bottom linear resistance point: the solution that is the least you are willing to
accept and still reach agreement. To identify your bottom line, consider:
i.
Your lowest estimate of what is needed and still acceptable to you.
ii. Your least optimistic assumption of what is possible.
iii. Your least favourable assessment of your bargaining skill relative to other negotiators.
iv. Your Best Alternative To A Negotiated Agreement (BATNA).
4. Consider possible targets and bottom lines of other negotiators.
i.
Why do they set their targets and bottom lines at these points? What interests or needs
do these positions satisfy?
ii. Are your needs or interests and those of the other party mutually exclusive?
iii. Will gains and losses have to be shared to reach agreement, or can you settle with both
receiving significant gains?
iv. Consider a range of positions between your target point and bottom line.
v. Each subsequent position after the target point offers more concessions to the other
negotiator(s) but is still satisfactory to you.
vi. Consider having the following positions for each issue in dispute:
»
Opening position.
»
Secondary position.
»
Subsequent position.
»
Fall back position-(yellow light that indicates you are close to bottom line; parties
who want to mediate should stop here so that the intermediary has something to
work with).
»
Bottom line.
5. Decide if any of your positions meet the interests or needs of the other negotiators.
How should your position be modified to do so?
6. Decide when you will move from one position to another.
7. Order the issues to be negotiated into a logical (and beneficial) sequence.
8. Open with an easy issue.
9. Open with a position close to your target point.
i.
Educate the other negotiators so they understand why you need your solution and why
your expectations are high.
ii. Educate them about the need to raise or lower their expectations.
10. Allow other side to explain their opening position.
11. If appropriate move to other positions that offer other negotiators more benefits.
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4
12. Look for a bargaining range: the spectrum of possible settlement alternatives, any one of
which is preferable to impasse and no settlement.
Acceptable
Negotiating Range =
Party A's
Party A's
Target
Bottom Line
1
2
3
4
5
6
7
8
9
10
Party B's
Party B's
Bottom Line
Target
13. Compromise on benefits and losses where appropriate.
14. Look for ways positions can be modified to meet all negotiators' interests. Formalize
agreements in writing.
characteristic behaviours of Positional bargainers
1. Initial large demand­­high or large opening position used to educate other party about what
is desired or identify how far they will have to move to reach an acceptable settlement range.
2. Low level of disclosure­­secretive and non-trusting behaviour to hide what settlement range
and bottom line are. Goal is to increase benefits at expense of other.
3. Bluffing­­strategy used to make negotiator grant concessions based on misinformation about
the desires, strengths, or costs of another.
4. Threats­­strategy used to increase costs to another if agreement is not reached.
5. Incremental concessions­­small benefits awarded to gradually cause convergence between
negotiators' positions.
6. Hard on people and problem­­often other negotiator is degraded in process of hard
bargaining over substance. This is a common behaviour that is not necessarily a quality or
desirable behaviour in positional bargaining.
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4.4.5
costs and benefits of positional bargaining
cOsTs
benefITs
· Often damages relationships.
· May prevent premature concessions.
· Inherently polarizing (my way, your way).
· Is useful in dividing or compromising on the
distribution of fixed-sum resources.
· Cuts off option exploration.
· Does not require trust to work.
· Often prevents tailor-made solutions.
· Does not require full disclosure of privileged
information.
· Promotes rigid adherence to positions.
· Obscures a focus on interests by premature
commitment to specific solutions.
· Produces compromise when better solutions may have
been available.
4.5
Interest-based bargaining
4.5.1
what Is Interest-based bargaining?
Interest-based bargaining is a negotiation strategy that focuses on satisfying as many interests or
needs as possible for all negotiators. It is a problem-solving process used to reach an integrative
solution rather than distributing rewards in a win/lose manner. It is not a process of compromise.
4.5.2
when Is Interest-based bargaining used?
· When the interests of the negotiators are interdependent.
· When it is not clear whether the issue being negotiated is fixed-sum (even if the outcome is
fixed-sum, the process can be used).
· When future relationships are a high priority.
· When negotiators want to establish cooperative problem-solving rather than competitive
procedures to resolve their differences.
· When negotiators want to tailor a solution to specific needs or interests.
· When a compromise of principles is unacceptable.
4.5.3
attitudes of Interest-based bargainers
· Resource is seen as not limited.
· All negotiators' interests must be addressed for an agreement to be reached.
· Focus on interests not positions.
· Parties look for objective or fair standards that all can agree to.
· Belief that there are probably multiple satisfactory solutions.
· Negotiators are cooperative problem-solvers rather than opponents.
· People and issues are separate. Respect people, bargain hard on interests.
· Search for win/win solutions.
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4.5.4
How to do Interest-based bargaining
1. Interests are needs that a negotiator wants satisfied or met. There are three types of interests:
i.
Substantive interests--content needs (money, time, goods or resources, etc.)
ii. Procedural interests--needs for specific types of behaviour or the "way that
something is done."
iii. Relationship or psychological interests--needs that refer to how one feels,
how one is treated or conditions for ongoing relationship.

TrIangle Of saTIsfacTIOn

PROCEDURAL
PSYCHOLOGICAL
INTERESTS
SUBSTANTIVE
2. Identify the substantive, procedural and relationship interests/needs that you expect to be
satisfied as a result of negotiations. Be clear on:
i.
Why the needs are important to you.
ii. How important the needs are to you.
3. Speculate on the substantive, procedural and relationship interests that might be important to
the other negotiators.
i.
Assess why the needs are important to them.
ii. Assess how important the needs are to them.
4. Begin negotiations by educating each other about your respective interests.
i.
Be specific about why interests are important.
ii. If other negotiators present positions, translate them into terms of interest. Do not allow
other negotiators to commit to a particular solution or position.
iii. Make sure all interests are understood.
5. Frame the problem in a way that it is solvable by a win/win solution.
i.
Remove egocentricity by framing the problem in a manner that all can accept.
ii. Include basic interests of all parties.
iii. Make the framing congruent with the size of the problem to be addressed.
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iv. Identify general criteria that must be present in an acceptable settlement.
v. Look for general agreements in principle.
vi. Identify acceptable objective criteria that will be used to reach more specific agreements.
6. Generate multiple options for settlement.
i.
Present multiple proposals.
ii. Make frequent proposals.
iii. Vary the content.
iv. Make package proposals that link solutions to satisfy interests.
v. Make sure that more than two options are on the table at any given time.
vi. Utilize Integrative Option Generating Techniques
a) Expand-the-pie-ways that more resources or options can be brought to bear
on the problem.
b) Alternating satisfaction--each negotiator gets 100 percent of what he/she wants, but
at different time.
c) Trade-offs--exchanges of concessions on issues of differing importance to
the negotiators.
Consider two or more agenda items simultaneously.
Negotiators trade concessions on issues of higher or lower importance to each.
Each negotiator gets his/her way on one issue.
d) Integrative solutions--look for solutions that involve maximum gains and few or no
losses for both parties.
e) Set your sights high on finding a win/win solution.
7. Separate the option generation process from the evaluation process.
8. Work toward agreement.
i.
Use the Agreement in Principle Process (general level of agreements moving toward
more specific agreements).
ii. Fractionate (break into small pieces) the problem and use a Building Block Process
(agreements on smaller issues which when combined form a general agreement).
iii. Reduce the threat level.
iv. Educate and be educated about interests of all parties.
a) Ensure that all interests will be respected and viewed as legitimate.
b) Show an interest in their needs.
v. Do not exploit another negotiator's weakness.
vi. Demonstrate trust.
a) Put yourself in a one down position to other on issues where you risk a small, but
symbolic loss.
b) Start with a problem-solving rather than competitive approach.
c) Provide benefits above and beyond the call of duty.
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vi. Convey to other negotiators that they have been heard and understood.
a) Listen and restate content to demonstrate understanding.
b) Listen and restate feelings to demonstrate acceptance (not necessarily agreement)
and understanding of intensity.
4.5.5
costs and benefits of Interest-based bargaining
cOsTs
benefITs
· Requires some trust
· Produces solutions that meet specific interests.
· Requires negotiators to disclose information and
· Builds relationships.
interests.
· May uncover extremely divergent values or interests.
· Promotes trust.
· Models cooperative behaviour that may be valuable in
future.
4.6
Making the Transition from Positional to Interest-based bargaining
Interest-based bargaining is a better option for avoiding and mitigating conflict. It places parties in
positive and amicable positions rather than negative and confrontational ones. Focussing on interests
tends to allow greater possibilities for agreement. Generally, positions do not usually allow for the
possibility of alternatives other than the one presented. Interest-based bargaining can help build and
maintain relationships, while positional bargaining is often detrimental to relations.
The following steps can aid in the transition from positional to interest-based bargaining:
1. Ignore positions and keep on talking.
2. Do not ask for specific solutions early in the negotiations.
3. Do not respond to positions with counter positions.
4. Ask whether the problem has to be solved in a win/lose manner. State that you want to look
for a solution that will be advantageous to all parties.
5. Ask why a position is important to a party. Try to identify underlying issues.
6. Conduct trial-and-error hypothesis testing to indirectly identify interests.
7. Verbalize and make interests explicit.
8. Separate substantive, procedural and psychological interests contained in a stated position.
9. Look for general principles behind positions to which both parties can agree.
10. Reframe problem as a search for means to satisfy interests rather than a way to persuade the
other party to agree to a position.
11. Reframe the problem to emphasize commonality of interests or the possibility of joint gain.
12. Separate the problem from the people involved.
13. Ask for principles by which to evaluate positions offered.
14. Respond with several counter positions and suggest that all merit further investigation to see
how they meet the parties' interests.
15. Do not negotiate the use of interest-based bargaining procedures using positional
bargaining tactics.
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4.7
stages of negotiation
stage 1: evaluate and select a strategy to guide Problem solving
· Assess various approaches or procedures--negotiation, facilitation, mediation, arbitration,
court, etc.--available for problem solving.
· Select an approach.
stage 2: Make contact with Other Party or Parties
· Make initial contact(s) in person, by telephone or by mail.
· Explain your desire to negotiate and coordinate approaches.
· Build rapport and expand relationship.
· Build personal or organizational credibility.
· Promote commitment to the procedure.
· Educate and obtain input from the parties about the process that is to be used.
stage 3: collect and analyze background Information
· Collect and analyze relevant data about the people, dynamics and substance involved
in the problem.
· Verify accuracy of data.
· Minimize the impact of inaccurate or unavailable data.
· Identify all parties' substantive, procedural and psychological interests.
stage 4: Design a Detailed Plan for negotiation
· Identify strategies and tactics that will enable the parties to move toward agreement.
· Identify tactics to respond to situations peculiar to the specific issues to be negotiated.
stage 5: build Trust and cooperation
· Prepare psychologically to participate in negotiations on substantive issues.
· Develop a strategy to handle strong emotions.
· Check perceptions and minimize effects of stereotypes.
· Build recognition of the legitimacy of the parties and issues.
· Build trust.
· Clarify communications.
stage 6: beginning the negotiation session
· Introduce all parties.
· Exchange statements which demonstrate willingness to listen, share ideas, show openness to
reason and bargain in good faith.
· Establish guidelines for behaviour.
· State mutual expectations for the negotiations.
· Describe history of problem and explain why there is a need for change or agreement.
· Identify interest and/or positions.
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stage 7: Define Issues and set an agenda
· Together identify broad topic areas of concern to people.
· Identify specific issues to be discussed.
· Frame issues in a non-judgmental neutral manner.
· Obtain an agreement on issues to be discussed.
· Determine the sequence to discuss issues.
· Start with an issue in which there is high investment on the part of all participants, no serious
disagreement and a strong likelihood of agreement.
· Take turns describing how you see the situation. Participants should be encouraged to tell
their story in enough detail that all people understand the viewpoint presented.
· Use active listening as well as open-ended and focusing questions to gain additional
information.
stage 8: uncover Hidden Interests
· Probe each issue, one at a time or together, to identify interests, needs and concerns of the
principal participants in the dispute.
· Define and elaborate interests so that participants understand the needs of others as well as
their own.
stage 9: generate Options for settlement
· Develop awareness about the need for options from which the final settlement will be created.
· Review needs of parties which relate to the issues.
· Generate criteria or objective standards that can guide settlement discussions.
· Look for agreements in principle.
· Consider breaking issues into smaller, more manageable issues and generating solutions for
sub-issues.
· Generate options either individually or through joint discussions.
· Use one or more of the following procedures:
a) Expand the pie so that benefits are increased for all parties.
b) Alternate satisfaction so that each party has his/her interests satisfied, but at
different times.
c) Trade items that are valued differently by parties.
d) Look for integrative or win/win options.
e) Brainstorm.
f) Use trial-and-error generation of multiple solutions.
g) Try silent generation in which each individual develops privately a list of options and then
presents his/her ideas to other negotiators.
h) Use a caucus to develop options.
i) Conduct position/counter-position option generation.
j) Separate generation of possible solutions from evaluation.
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stage 10: assess Options for settlement
· Review the interests of the parties.
· Assess how interests can be met by available options.
· Assess the costs and benefits of selecting options
stage 11: final bargaining
Final problem solving occurs when:
· One of the alternatives is selected.
· Incremental concessions are made and parties move closer together.
· Alternatives are combined or tailored into a superior solution.
· Package settlements are developed.
· Parties establish a procedural means to reach a substantive agreement.
stage 12: achieving formal settlement
· Agreement may be a written memorandum of understanding or a legal contract.
· Detail how settlement is to be implemented­­who, what, where, when, how-­and write it
into the agreement.
· Identify "what ifs" and conduct problem solving to overcome blocks.
· Establish an evaluation and monitoring procedure.
· Formalize the settlement and create enforcement and commitment mechanisms:
a) Legal contract.
b) Performance bond.
c) Judicial review.
d) Administrative/executive approval.
4.8
Preparing to negotiate
Satisfactory performance in negotiation, as in many other social interactions, requires preparation.
Just as good athletes, musicians, parents, public speakers, military officers, lawyers or planners spend
hours practicing, designing strategies and refining their skills, so too must good negotiators.
Since the content and dynamics of negotiations vary considerably from situation to situation, it is not
always easy to identify what should be considered in order to adequately prepare. The following topics
or tasks have been identified by numerous negotiators as critical variables in preparing to meet others
at the bargaining table. Consideration of these items will help you to be more successful in planning
and implementing negotiations.
· What are your needs and interests? To negotiate successfully, you need to identify
your needs and interests. Interests fall into three categories: substantive, procedural, and
psychological. Take time to identify your interests and to assess how strongly you are
committed to them.
· Who are the people or parties that you need to negotiate with to satisfy your interests?
Negotiators should identify the people with whom they must make a deal to get their needs
met. Negotiators should consider principal parties (either individuals or groups) who must be
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motivated at the bargaining table for an agreement to hold, and secondary parties, interested
people or groups who will be affected by the decision but are neither principal actors nor have
the capacity to change a negotiated settlement.
· What are the substantive, procedural and psychological interests of the other primary
and secondary parties? To reach an agreement in negotiation, the solution must, at the least,
meet the minimal needs of all the principal parties. To formulate proposals, you need to know
these interests.
· Given the needs and interest of the parties, decide if the problem is negotiable. Are
the needs totally incompatible? Are the parties totally independent of each other, so that
the satisfaction of needs is not dependent on the cooperation of one another? If the two
preceding questions are true, negotiations will have a very low probability of succeeding. If
they are not true, continue assessing the possibilities of negotiation.
· What means of influence do you have to persuade the other party to meet your needs?
Consider the forms of negotiator power: control of the process, communication, data, experts,
use of authority, associates, rewards and coercion. Determine the benefits and costs of using
each form of influence.
· Given the interests of all the parties, what will be the issues or statement of the
problems that need to be discussed? For example, if your interests regarding the
development of a condominium unit near your single family home are privacy, minimal noise,
low level of traffic and protection from bright street lamps, and the developer's interests are
to build the project in a cost effective manner, the issues become: (1) how to build the project
at a reasonable cost and maintain visual privacy of neighbours, and (2) how to cut down on
noise coming from the multifamily dwelling, avoid traffic flow through the neighbourhood
and limit the direction and intensity of lighting for the project.
· Do you and the other primary parties have (or will have) the authority to negotiate
a binding settlement? Will your superiors authorize you to negotiate on their, or the
organization's, behalf? What is the ratification process for an agreement reached at the
bargaining table? lf you do not have the authority to negotiate, who does? Should someone
else be at the table? Ask the same questions for each of the principal parties.
· Have any of the parties taken positions on the issues? A position is a particular solution
that meets the needs of a party but not necessarily the needs of the other negotiators. People
adhere to positions because they meet interests. Determine what interests the position is
meant to satisfy. Are there ways to meet the interests other than the stated position?
· How important are the issues and interests to each of the parties? Which are they least
likely to change? Are there any issues that might be trusted or dropped?
· What events or dynamics will make it harder for you or for other parties to negotiate?
Consider court dates, past interactions, lack of information, laws, internal organizational
policies or the political or economic climate. What can you do to change these dynamics and
reverse negative trends?
· What events or dynamics encourage negotiations and promote settlement?
· What settlement options on each issue might go into a "mutually acceptable" proposal?
A mutually acceptable proposal is designed to meet your needs as well as those of other
negotiators. It will be presented as a way for all parties to have at least some of their
needs met.
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· What should be the physical setting for the negotiations? Should they be facetoface,
over the telephone, conducted on a oneonone basis or in a large group? What should be
the shape of the room, the table, size of chairs, etc.?
· How can a conciliatory tone that promotes a positive relationship with other
negotiators be established at the beginning of the session? Consider introductions,
conciliatory remarks, room set-up, refreshments, etc.
· How should you organize your team? Consider whether the team is a horizontal one
(made up of members with equal power or authority) or a vertical team (someone has
authority to decide for team members). Decide who the spokesperson will be.
· What negotiation strategy should you use? Decide if you want to use positional or
interest-based bargaining.
· How will you open negotiations?
»
Who will do the opening statement?
»
What will be covered: history of the issue, need for change, interests to be met,
possible solutions?
»
How will a positive tone be established?
»
Which party will talk first? Is there merit in letting another party talk first?
»
How will the agenda be developed? Do you have a proposed order for items to be
discussed?
»
What issue(s) do you want to talk about first? What issue(s) will be easier to get an
agreement on?
»
Consider negotiating ground rules and procedures early in the first session (or even
before the first meeting).
»
What unforeseen turn of events, other negotiators' strategies or external factors could
effect the negotiations? Develop contingent strategies for possible problems that
might develop in the negotiations.
The "Conflict Analysis" chart is an abbreviated version of the questions listed above. It can be filled out
as a means of preparing for negotiations.
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-
STEPS FOR SETTLE MENT
-
SETTLE MENT OPTIONS (Options that Meet Mutual Needs)
s
,
WILL TO SETTLE (Benefits Costs and Alternative to Negotiation)
t
omoting
DYNAMICS (Historical Developmen Pr Escalation or De-escalation)
A
T
EGY DESIGN
POWER (Means of Influence)
ANCE/ E
YSIS AND STR
ocedural and
I
MPORT SALIENC (Substantive Pr Psychological)
S
INTEREST
ocedural and
(Substantive Pr Psychological)
CONFLICT ANAL
oblem
ISSUES (Pr Statements of Agenda Items)
ences)
erbalized
efer
POSITIONS (V Substative Pr
/
PEOPLE PARTIES (Primary and Secondary)
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4.9
Opening statements for negotiators
Opening statements are brief speeches or monologues made by the disputing parties which outline
the basic premises of the negotiations. The following outline is designed to help disputants be more
effective in their opening.
Purpose:
· To make face-to-face introductions.
· To establish a positive tone.
· To educate the parties about the negotiation process.
· To reach an agreement on standards of behaviour.
· To obtain a commitment to begin the process.
Procedure:
1. Introduce yourself and other parties.
2. Welcome the negotiator(s) and affirm their willingness to discuss the issues or negotiate
a settlement. Make a conciliatory statement that sets a positive tone, but does not make a
concession.
3. Review why people are there in neutral terms.
4. Explain how you perceive negotiation process. Is it:
i.
An attempt by the parties to reach their own agreement through discussions or
negotiations?
ii. An opportunity for all parties to gain benefits?
iii. Is it voluntary?
5. Describe the problemsolving process that you propose to use:
i.
Each person will talk and describe the situation.
ii. Topics for discussion will be mutually agreed upon.
iii. An agenda will be developed jointly.
iv. All needs will be examined.
v. Agenda items will be discussed one-by-one.
vi. The parties will look for solutions that are mutually satisfactory.
vii. The agreement will be written down and formalized according to parties' desires.
6. Agree on the use of private meetings (caucus), breaks or time to consult with other parties.
7. Identify procedural guidelines that will help them promote efficient negotiation.
8. Ask and/or answer questions regarding process.
9. Obtain a commitment to begin the process from each party.
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4.10
Procedural Openings and Issues in negotiation
why Open with a focus on Procedure?
· On occasion, parties may want to open negotiations by focusing on negotiation
procedures rather than beginning with substantive discussions. There is an advantage
to this focusing on procedures:
· Enables the parties to establish rules for interaction that may provide more predictability
and security.
· Provides a jointly developed order for the negotiations to which all parties are committed.
· Allows the parties to practice decision making as a team.
· Provides information about attitudes, behaviour and trustworthiness of other parties.
· Allows parties to practice joint decision making on issues that are neither substantively
critical nor emotionally charged.
· Provides an opportunity to build "habits" of agreement.
· Is a concrete achievement demonstrating that agreement is possible and that the situation
is not hopeless.
what Procedural Issues are addressed?
· How the agenda will be developed.
· The speaking order of the parties.
· The time frame, schedule and duration of the negotiations.
· How information will be exchanged between the parties.
· How proprietary information will be handled.
· How legal rights or administrative mandates will be recognized.
· The limits of confidentiality.
· Acceptable behaviour regarding personal attacks, attribution of motivation, respect for values
and emotional displays.
· Determination of who will represent interest groups.
· Decision-making authority of each party.
· Role of substitutes or observers.
· Role of task forces or subcommittees.
· Size of negotiation teams.
· The consensus decision-making process.
· Negotiation procedures to be used.
4.10.1
negotiator Power and Influence
Negotiators try to change each other's behaviour, attitudes or opinions by exercising a variety of
means of influence. Listed below are techniques that are frequently used to change the mind of
another negotiator. Each party usually has the potential to use some or all of these techniques. The
desirability, however, of exercising them must be weighed against the goals of the negotiations and
the potential positive or negative impact of their use on the other party or parties.
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A negotiator's power is relative and depends upon the particular people, problem and external
situation. A very powerful negotiator in one situation may be extremely weak in another.
"An important aspect of negotiation beyond the scope of this manual is the dynamic of different power
positions and the significance of cultural differences when negotiating. The power held by any one party and
how it is exercised can significantly affect the way negotiations are handled and their outcomes e.g. Nile River
Basin and Jordan River Basin."
Exercise of influence may be either non-directive or directive. The negotiator may create a situation
where the other party has lots of positive and acceptable options, or narrow their choices so that
another must choose from very limited alternatives.
Generally, the more coercive the power exercised at the table (and the narrower the options available
to a party), the more resistance to cooperation there will be from the party toward whom the coercion
is directed. Less directive and more cooperative means of influence should be tried before resorting to
coercion or actions that could damage the relationship with another negotiator.
Means of Influence
1. Management of the Negotiation Process.
i.
Planning a cooperative and informative opening.
ii. Sequencing of the stages of negotiation.
iii. Ordering the agenda.
iv. Placing an easily solved item at the beginning of the session.
v. Managing the problem-solving steps to be used on each agenda item.
vi. Assisting the other party to make the transition from positional to interest-based
bargaining.
2. Management of Communication Within and Between the Parties.
i.
Managing behavioural communication through active listening, reframing and congruent
sending.
ii. Assisting parties to move from extreme positions by softening the specificity, timing and
consequences of their demands.
iii. Managing the structure of communications by determining if the negotiations are to
be held directly by the parties, through intermediaries, in joint session or caucus, in the
whole group or small working committees, face-to-face, by letter or by telephone.
3. Management of Body Language and Physical Setting.
i.
Demonstrating attentive, concerned and open body language.
ii. Showing dissatisfaction, frustration, intransigence.
iii. Establishing the shape of the negotiating table and seating arrangements.
iv. Arranging for a room of appropriate size for desired results.
v. Providing caucusing space.
vi. Locating negotiations in a neutral space or one favourable to a particular party's interests.
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4. Management of the Timing.
i.
Deciding when negotiations will be proposed and started.
ii. Determining how long the negotiations as a whole and individual sessions win will last.
iii. Imposing, modifying and removing deadlines.
iv. Controlling the timing of information exchange.
v. Managing the time when offers are made (or accepted).
vi. Designing the timing of implementation.
5. Management of Information Exchanged Between Parties.
i.
Identifying what information is needed.
ii. Requesting information.
iii. Asking why a proposal is important to another party.
iv. Making general suggestions.
v. Making specific suggestions.
vi. Presenting concrete proposals or offers.
vii. Referring other parties to sources of information or experts.
6. Management of Associates.
i.
Identifying and encouraging associates of other parties to influence them.
ii. Inhibiting associates' influence on other parties by minimizing contact or value of
information.
iii. Creating doubt about accuracy of associate's opinion or data.
7. Management of Experts.
i.
Making experts available to build your case.
ii. Casting doubt on experts who present information contrary to your case.
iii. Referring other parties to substantive, procedural or psychological experts.
8. Management of Authoritative Power.
i.
Appealing to law, regulation or common practice.
ii. Asking for support of people in authority.
iii. Arranging for institutional mandate for your position.
9. Management of Habit.
i.
Asking for a continuation of past practice.
ii. Appealing to transition.
10. Management of Other Parties' Doubt.
i.
Questioning validity or applicability of another party's arguments.
ii. Testing the reasons of another party's proposals or ideas.
iii. Posing hypothetical problems that might result from a particular solution.
iv. Exploring another party's best alternative to a negotiated agreement (BATNA).
v. Exploring another party's worst alternative to a negotiated agreement (WATNA).
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vi. Exploring another party's most likely alternative to a negotiated agreement (MLATNA).
11. Management of Rewards and Benefits for Other Parties.
i.
Providing indirect rewards for cooperation or agreement (respect, benefits to be received
upon final agreement, symbolic or small rewards).
ii. Providing direct rewards (substantive benefits, favourable timing of settlement, of receipt
of benefits).
12. Management of Coercive Influence.
i.
Imposing physical hardship or discomfort: location of negotiation setting, timing of
meetings, duration of meetings (marathons).
ii. Imposing psychological coercion: intimidation, humiliation.
iii. Imposing substantive coercion: court costs, delay costs, other threats.
iv. Imposing procedural coercion: deadlines, threats to withdraw
13. Management of Resources.
i.
Marshalling your resources--money, people and skills--to enhance your influence in
negotiations.
ii. Weakening other party's resources to lower the amount of influence they have in
negotiation.
4.11
structured Decision Making for negotiations22
Structured Decision making for the focus of development investment has shifted away from narrow
economic interests towards multi-purpose projects with the explicit goal of achieving broader social
and environmental improvements, regional cooperation, peace and security. It is shifting away from
a "least cost planning plus mitigation" planning model towards a sustainability paradigm that more
proactively integrates ecological, economic and social objectives upstream in the planning process.
And, in response to intense international scrutiny and controversy surrounding decisions to invest in
large infrastructure projects on internationally important waterways, it is shifting away from top-down
decisions toward more inclusive and transparent ones. All of these shifts are profoundly changing
the context for development decision making and therefore require a new mechanism to facilitate
decision-making in the development context.
Structured decision making is an organized approach to identifying and evaluating options and
making choices in complex decision situations. It is designed to engage stakeholders, technical experts
and decision makers in a deliberative decision process, using best practices in decision making. Its
goal is to both inform and actively aid decision makers, but specifically not to prescribe a solution. It
provides a framework to guide and integrate planning, analysis and consultation activities in support
of decisions.
In a very practical way, structured decision making brings insights to decision makers about how
well their objectives are achieved by different alternatives, how risky some alternatives are relative
to others, what the core trade-offs are, and how the people affected by the trade offs view them. It
provides a level of penetration into complex problems and a focus on creative collaborative solutions
that is simply not possible with more conventional economic approaches (such as cost-benefit
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22 The advice and encouragement of Kyle Robertson in compiling this section is gratefully acknowledged.

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analysis), consensus-based approaches (such as negotiations and dispute resolution), or scientific
approaches (such as risk assessment). In contrast to economic and scientific approaches, structured
decision making is more targeted at working directly with stakeholders, decision makers and the
decision making team to develop creative solutions. In contrast to negotiations, it is rooted in rigorous
analysis of consequences and uncertainties, it requires that participants consider these analyses in
their deliberations, and it explicitly leaves decision making authority in the hands of decision makers.
As a structured approach is of most value for decisions characterized by complexity, one of the most
important benefits of adopting a structured decision making approach for transboundary waters
management will be the legitimacy it brings to potentially controversial decisions.
There are six core steps that are applied to any structured decision making process. These steps are
reviewed and then refined through an iterative approach as the process moves towards its final
solution. The core steps are provided below and presented in a logical diagram in Figure 1:
1. Clarify the decision context: defining what question or problem is being addressed and why,
identifying who needs to be involved and how, and establishing scope and bounds for the
decision.
2. Set objectives and evaluation criteria: Objectives should reflect the things that matter
or the felt needs of the people affected. The evaluation criteria should be unambiguous,
comprehensive but concise, direct, operational, understandable, and additive, and these
criteria should be used to determine the expected impact of each alternative on the objectives.
3. Identify Alternatives: Rather than allowing the decision process to devolve into an economic
valuation exercise or a scientific stand-off about uncertainties, it should focus on comparing
and refining alternatives rather than precisely valuing their monetary benefits, and should
search for alternatives that are robust to key uncertainties or that reduce those uncertainties
over time. A short list of high quality creative alternatives should be developed that are value-
focused, technically sound, clearly and consistently defined, comprehensive and mutually
exclusive, and able to expose fundamental trade-offs. Involving stakeholders enriches the
number and quality of creative options.
4. Estimate Consequences: A consequence table should be prepared that links objectives,
evaluation criteria and alternatives so that key trade-offs among objectives across the
alternatives can be exposed.
5. Evaluate and Select: While stakeholder consensus is desired, it is not mandatory. Areas of
agreement and disagreement among stakeholders and the reasons for disagreement should
be documented and presented to decision makers.
6. Monitor and Review: A decision process that is serious about sustainability is one that will
create a legacy of learning and adaptation, leading to greater capacity ­ in terms of technical
information, human resources and institutional capacity ­ to make better decisions in the
future. A key challenge will be to both reduce critical uncertainties through monitoring
and review and build in institutional flexibility to respond to new information without
overextending management and political resources.
fIgure 1 ­ cOncePTual fraMewOrk fOr sTrucTureD DecIsIOn MakIng
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Source: Heun, J.C., Koudstaal, R.C, 2000. Lecture Notes: Water Resources Planning: A Framework for Analysis, Volume 1: Main Text.
UNESCO-IHE Institute for Water Education, Delft, The Netherlands.
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4.11.1
background Materials
1. World Bank, 2003. Stakeholder Involvement in Options Assessment: Promoting Dialogue in Meeting
Water and Energy Needs: A Sourcebook. Bank-Netherlands Water Partnership Program.
ESMAP, Report 264/03.
2. Failing, L., G. Horn, and P. Higgins. 2004. Using expert judgment and stakeholder values to
evaluate adaptive management options. Ecology and Society 9(1):13.
[online] URL: http://www.ecologyandsociety.org/vol9/iss1/art13
3. Gregory, R., & Failing, L. 2002. Using decision analysis to encourage sound deliberation: Water
use planning in British Columbia, Canada. Journal of Policy Analysis and Management
21: 492-499.
4. Gregory, R., T. McDaniels, D. Fields. 2001. Decision aiding, not dispute resolution: Creating
insights through structured environmental decisions. Policy Analysis and Management 20(3).
5. Hammond, J., Keeney, R.L, & Raiffa, H. 1999. Smart Choices: A Practical Guide to Making Better
Decisions. Cambridge, MA: Harvard Business School Press.
6. Hobbs B.F. and Peter Meier, 2000. Energy Decisions and the Environment: A Guide to the Use of
Multicriteria Methods. Kluwer Academic Publishers. Boston.
7. Keeney, R.L and H. Raiffa, 1976. Decisions with Multiple Objectives: Preferences and Value Trade-
offs. New York: Wiley.
8. Keeney, R.L. 1992. Value-focused Thinking: A Path to Creative Decision Making. Cambridge,
MA: Harvard University Press.
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sIMulaTIOn exercIses
5.1
Purpose, value and scope
Simulations have been employed successfully in international relations courses since the late 1950s,
but the end of the Cold War has prompted a renewed interest in simulations as interactive teaching
tools that capture the dynamics of change in the international system. They can be an effective
tool because they engage students and make them active participants in the learning process. The
objective of these simulations is not to train students to be professional negotiators, but rather to
provide a solid grounding which will enable them to better understand the process of international
negotiation. These simulations are meant to connect the information hitherto discussed in this
manual and apply it to practical and realistic situations. In applying the knowledge gained to realistic
international scenarios, future negotiators can practice implementing strategies in a comfortable and
constructive atmosphere.
5.2
simulation exercise # 1 -- The vancouver river Part One23
5.2.1
Introduction
The basic fact pattern used in Simulation Exercise # 1 will be used in two related simulation training
exercises.
In Simulation Exercise # 1 the fact pattern will be used to reinforce the practical application of the
principle of equitable utilization in international water law. The same fact pattern will then be used
in Simulation Exercise # 4 to help to illustrate the advantages and disadvantages of litigation versus
negotiation as techniques for helping to resolve international water law disputes.
scenario
Originating in a high mountain range studded with glaciers and flowing southwesterly some 2000
miles to the ocean, the Vancouver River has always been a life sustaining source of water for the state
of Upstream and the Republic of Downstream.
However, beginning about twenty years ago global climate change apparently caused the Vancouver
River to shrink to half its normal size, leading to forced water rationing in both countries and resulting
in crop failures, food shortages and related misfortunes.
Upstream sought to rectify this problem by constructing, with foreign capital, a large dam in Upstream
on the Vancouver River. According to Upstream, the dam would make possible the recovery of arable
land lost through decertification, the development of irrigated "green belts" and the generation of rural
hydroelectric power. However, this action, together with a greater diversion of water for irrigation
than originally had been planned, appeared to lead to rapidly increased decertification in Downstream
and a consequent major decline in a certain river fish upon which Downstream diets historically have
depended. Additionally, it caused a decline in the quality of the river water to Downstream because of
increased pesticide use and run-off in Upstream's newly created "green belts".
Downstream now demands that the flow of the Vancouver River be restored to its normal level
and that Upstream take steps to remedy the pesticide problem. Upstream has responded that the
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23 This simulation exercise was adapted and modified from an exercise originally developed by Professor L. Guruswamy

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current river flow is critical to the success of its green belt irrigation program and has dismissed the
suggestion that the use of pesticides damages the health of Downstream citizens.
In the face of threats of military action on Downstream's part, representatives from Downstream and
Upstream have agreed to meet.
Major lessons
· Application of the principles of international water law.
Teaching Materials:
For all parties:
· Disclaimer
· Fact Pattern
· Questions Presented
· Parties
· Background Materials
· Discussion Questions
Teaching Package:
· All of the above
· Teaching notes including legal "solution"
keywords/Themes:
Multi-party negotiation; international water law; transboundary environmental disputes.
5.2.2
The simulation
simulation exercise # 1 -- The vancouver river Part One
Disclaimer
This simulation exercise is entirely made up for teaching purposes only. Any resemblance between
this simulation and any real situations or real persons, living or dead, is purely coincidental.
fact Pattern
Originating in a high mountain range studded with glaciers and flowing south-westerly some 2000
miles to the ocean, the Vancouver River has always been a life sustaining source of water for the state
of Upstream and the Republic of Downstream.
However, beginning about twenty years ago, global climate change apparently caused the Vancouver
River to shrink to half its normal size, leading to forced water rationing in both countries, and
resulting in crop failures, food shortages and related misfortunes.
Upstream sought to rectify this problem by constructing, with foreign capital, a large dam in Upstream
on the Vancouver River. According to Upstream, the dam would make possible the recovery of arable
land lost through decertification, the development of irrigated "green belts" and the generation of rural
hydroelectric power. However, this action, together with a greater diversion of water for irrigation
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than originally had been planned, appeared to lead to rapidly increased decertification in Downstream
and a consequent major decline in a certain river fish upon which Downstream diets historically have
depended. Additionally, it caused a decline in the quality of the river water to Downstream because of
increased pesticide use and run-off in Upstream's newly created "green belts".
Downstream now demands that the flow of the Vancouver River be restored to its normal level
and that Upstream take steps to remedy the pesticide problem. Upstream has responded that the
current river flow is critical to the success of its green belt irrigation program and has dismissed the
suggestion that the use of pesticides damages the health of Downstream citizens.
In the face of threats of military action on Downstream's part, representatives from Downstream and
Upstream have agreed to meet.
Questions Presented
Assume both Upstream and Downstream each have a team of three individuals representing them (as
designated by the instructor).
Assume further that there are no fundamental disagreements within each team.
Each team has now been instructed to prepare and present an argumentative legal brief before a
mixed arbitral panel of international law experts answering the following question:
Has Upstream violated international law by diminishing the quantity and quality of the flow of the
Vancouver River to Downstream?
Parties
There are 6 parties to this simulation as follows:
· Red ­ Foreign Minister of Upstream. Red is not a lawyer but it is important for her that
Upstream not be seen to be violating international law. Prior to becoming Foreign Minster,
Red was a senior commander in the Upstream armed forces.
· White ­ Deputy Minister of Water Resources for Upstream and a career civil servant. White
was hired from Canada because of her success in negotiating agreements between Canada
and the United States to equitably share downstream benefits on international rivers. White
is expected to try to improve the relationship of Upstream with Downstream in order to help
Upstream meet its objectives.
· Blue ­ international law advisor to Upstream and best friends with the Upstream Foreign
Minister. Blue is experienced in overcoming every possible obstacle, by whatever means
necessary, to achieve Upstream objectives on time and on budget.
· Stripes ­ Foreign Minister of Downstream. Stripes is angered and saddened by the way
Downstream has been treated by Upstream in the past. Stripes is known to be very pragmatic.
Stripes envisions the future of Downstream as one of self-sufficiency and growth. She is
determined to see Downstream prosper.
· Dots ­ Deputy Minister of Environment for Downstream and a career civil servant. Dots
has never forgotten how Upstream treated Downstream in a similar negotiation involving
a different River over 20 years ago. More recently, Dots has unsuccessfully tried to contact
officials at Upstream many times with problems relating to the Vancouver River. Dots feels
that this is the perfect opportunity to right the historic wrongs that have been perpetrated by
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Upstream. Rumour has it Dots intends to resign from the civil service and run against Stripes
in the next election.
· Dashes ­ international law advisor to Downstream and a career civil servant. Stripes has
heard great things about Dashes involvement in other negotiations and has personally asked
Dashes to help out with these negotiations.
5.2.3
background Materials
5.2.3.1 Theory
Perhaps the simplest theory regarding transboundary rivers is that an upper riparian State has total
sovereignty over the waters in its territory and that it may divert or pollute them regardless of the
consequences to the lower riparian. In 1895, U.S. Attorney General Harmon argued that upper
riparians such as the United States had no obligation toward lower riparians such as Mexico in
respect of rivers like the Rio Grande.24
Harmon cited as authority Justice Marshall's opinion in an early United States Supreme Court case
involving quite another matter, namely jurisdiction over a foreign vessel within United States territory.
In that case, Justice Marshall said "the jurisdiction of the nation within its own territory is necessarily
exclusive and absolute".25
However, concerning Harmon's doctrine, Anthony D'Amato has written:
It is an extremely dubious proposition to rely upon the arguments of governments, expressed either
through their attorneys or foreign officers, rather than their acts. So far as diversion of rivers is
concerned, many bilateral treaties have appeared since 1895 that regulate water uses in international
drainage basins, and over a hundred such treaties are operative today.26
What has the United States done since Attorney General Harmon's 1895 opinion as regards
transboundary rivers involving Canada and Mexico? Some of the history has been written by Griffin.27
rio grande
Mexico protested to the United States in 1895 the diversion of the Rio Grande River to the detriment
of existing Mexican uses. It claimed that its inhabitants had established a right to use the river's waters
hundreds of years prior to the time that settlers in Colorado began to use them. Notwithstanding,
Attorney General Harmon issued his opinion that the United States had no obligation to share the
water with Mexico or to pay damages for injury in Mexico caused by diversions in the United States.
On the other hand, the United States did agree with Mexico to refer the matter to the then existing
United States-Mexican International Boundary Commission for a report. That Commission reported
in 1896 that Mexico had been wronged, that a treaty should settle the matter and that Mexico
should waive all claims for past damages if the treaty divided the use of waters equally between
the two countries. Mexico said it would enter into the recommended treaty, but various delays and
counterproposals came up on the American side. Finally, after increasing Mexican protests, the United
States signed a treaty in 1906 agreeing to deliver to Mexico 60,000 acre feet of water annually without
cost to Mexico.28
It is clear that the treaty is not based upon the common recognition by the two governments of the
Harmon opinion as it preserves the formal legal position of each. The treaty recites that the delivery
24 21 Op. Att'y Gen. 274 (1895).
25 Schooner Exchange vs. McFaddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812).
26 A. D'Amato, The Concept of Custom in International Law 134 (1971).
27 Griffin, "The Use of Waters of International Drainage Basins Under Customary International Law", 53 A.J.I.L. 50 (1959).
28 See Agreement With Mexico, May 21, 1906, 34 Stat. 2953, T.S. No. 455, 9 Bevans 924. Writes Griffin, id. at 51-52

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of water by the United States is not a recognition by it of any Mexican claim to water or future claims
arising from diversions in the United States. Moreover, the United States' draft treaty contained a
phrase that its action in entering into the treaty "is prompted only by considerations of international
comity", but this phrase was omitted from the treaty as signed.
canada and us
Potential friction between the United States and Canada was averted by a treaty in 1909 that
differentiated between "boundary waters" (along which the US-Canadian boundary runs) and other
waters such as transboundary rivers.29 Each country was given equal rights in respect of boundary
waters, with future uses of such waters being made subject to the approval of an international joint
commission. But in the negotiations leading to the treaty, the United States refused to give jurisdiction
to the joint commission over future uses of waters other than the boundary waters, preferring instead
to leave it to the treaty to give each country "exclusive jurisdiction and control" over such waters
within its territory. However, an exception was made with respect to dams or other obstructions
which would raise the level of the water on the other side of the boundary. Here it was agreed that
approval of the joint commission would be required. As Griffin notes at this point, "discussion was
made of the fact that this limits the freedom of action of each country with respect to waters wholly
within its territory".30
Griffin also points out that "no internal memoranda of the United States negotiators, nor United
States correspondence with Canada, has been found containing any mention of the Harmon
opinion".31 Moreover, in explaining the treaty to the Canadian House of Commons, the Canadian
Minister of Public Works said that the Canadian Government did not frame the treaty on the theory
expressed by Attorney General Harmon of the United States.
colorado river
Use of the waters of the Lower Colorado River was the subject of discussions between Mexico and
the United States throughout the 1930s. Eventually, a treaty signed in 1944 obliged the United States
to deliver 1.5 million acre feet of the Colorado to Mexico annually, i.e., twenty-five times the original
acre feet.32 The treaty dealt also with the lower Rio Grande, allocating the water and providing for
joint construction of agreed works. As summarized by Griffin33, "The cost of diversionary works is
prorated in proportion to the benefits received by each country, and the costs of hydro-electric works
are shared equally".
ganges agreement
Another example of a transboundary river agreement is the November 5, 1977 Agreement between
Bangladesh and India on the Sharing of the Ganges' Waters.34 The agreement came after a quarter-
century of protracted negotiations. India had constructed a barrage on the River Ganges at Farakka
(eleven miles upstream from its border with Bangladesh) which diverted waters of the Ganges into
feeder canals and rivers within India. Bangladesh contended that, since June 1975, because of the
diversion, the lean season in Bangladesh was beginning three months earlier and consequently
causing great hardship. India, in response, claimed that the need for the Farakka Barrage was
recognized as far back as 1865 and that it was intended to save from extinction the Port of Calcutta
and the vast industrial complex it serves. On the basis of equitable sharing, India argued, it should
be free to divert the waters and Bangladesh should be prohibited from claiming, as it did, the river's
"natural flow." Judging from the 1977 agreement, however, India modified its Harmon-like approach
29 See Agreement with Canada, Jan. 11, 1909, 36 Stat: 2448, T.S, No. 548, 12 Bevans 319.
77
30 Griffin at 53.
31 Griffin at 53.
32 See Agreement with Mexico, Nov. 14, 1944, 59 Stat. 1219, T.S. No. 994, 9 Bevans 1166, 3 U.N.T.S. 313.
33 Griffin at 54.
34 Reprinted in 17 I.L.M. 103 (1978).

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somewhat. While Bangladesh did not succeed at its original claim of 49,000 cusec35 at all times, it was
guaranteed, per a schedule annexed to the treaty, between 35,000 and 58,000 cusec depending on the
week and month specified. Additionally the Agreement provided for a Joint Committee to assure its
implementation and a Joint Rivers Commission to mediate disputes. Other noteworthy provisions
included the following:
Article III
The waters released to Bangladesh at Farakka under Article I shall not be reduced below Farakka except for
reasonable uses of waters, not exceeding 200 cusecs, by India between Farakka and the point on the Ganges
where both its banks are in Bangladesh.
Article VIII
The two Governments recognize the need to cooperate with each other in finding a solution to the long-term
problem of augmenting the flows of the Ganges during the dry season.
Article IX
The Indo Joint Rivers Commission established by the two Governments in 1972 shall carry out investigation
and study of schemes relating to the augmentation of the dry season flows of the Ganges, proposed or to be
proposed by either Government with a view to finding a solution which is economical and feasible. It shall
submit its recommendations to the two Governments within a period of three years.
Article X
The two Governments shall consider and agree upon a scheme or schemes, taking into account the
recommendation of the Joint Rivers Commission, and take necessary measures to implement it or them as
speedily as possible.
Article XII
The provisions of the Agreement will be implemented by both parties in good faith. During the period for
which the Agreement continues to be in force in accordance with Article XV of the Agreement, the quantum of
waters agreed to be released to Bangladesh at Farakka in accordance with this Agreement shall not be reduced.
Lake Lanoux Arbitration (France v. Spain).36
This arbitration arose out of the Treaty of Bayonne of 1866 between France and Spain pursuant to
which Spain was assured a right to the natural flow of the river Carol, an outlet of Lake Lanoux
situated in French territory on the southern slopes of the Pyrenees and fed by streams that originate
in and flow through French territory only. After flowing approximately 25 kilometres from Lake
Lanoux through French territory, the Carol crosses the Spanish frontier at Puigcerda and continues
to flow through Spain for about 6 kilometres before joining the river Segre, which ultimately flows
into the river Ebro. A French proposal to use Lake Lanoux for hydroelectric purposes was objected to
by Spain on the ground that, if carried out, it would change the natural flow of the Carol and thereby
violate the Treaty of Bayonne. The hydropower scheme was to divert the waters from the Carol River
to a holding dam and power generating complex and then return the waters to the river before it
entered into Spain.
The Arbitral Tribunal voted in favour of France finding that its development scheme, though
substantial, would not breach the Treaty because it would provide the previous quantity37 of water to
Spain. Spain further argued, however, that customary international law required France to negotiate
78
35 cusec is a measure of flow rate and is one cubic foot per second (28,317 liters per second). It is generally used in measuring flow of water
in rivers.
36 24 I.L.R. 101, 127-130, 140 (1957), 12 U.N.R.I.A.A. 281, 306-308, 316 (1964)
37 It is interesting to note that while the `quantity' was the same, there was no guarantee that

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an agreement with Spain before effectuating its hydroelectric plan. According to Spain, customary
international law sanctions not only the equality of rights of co-riparians but also the necessity of
prior agreement among co-riparians whenever a substantial alteration of a transboundary system of
waters is contemplated. The Tribunal, acknowledging that the Treaty of Bayonne should be interpreted
taking into account "international common law," concluded as follows:
THe TrIbunal (Petrén, President; bolla, De luna, reuter, De visscher):
II.
...To admit that jurisdiction in a certain field can no longer be exercised except on the
condition of, or by way of, an agreement between two States, is to place an essential restriction
on the sovereignty of a State, and such restriction could only be admitted if there were clear
and convincing evidence. Without doubt, international practice does reveal some special cases
in which this hypothesis has become reality; thus, sometimes two States exercise conjointly
jurisdiction over certain territories (joint ownership, co-imperium, or condominium); likewise,
in certain international arrangements, the representatives of States exercise conjointly a
certain jurisdiction in the name of those States or in the name of organizations. But these
cases are exceptional, and international judicial decisions are slow to recognize their existence,
especially when they impair the territorial sovereignty of a State, as would be the case in the
present matter.
In effect, in order to appreciate in its essence the necessity for prior agreement, one must
envisage the hypothesis in which the interested States cannot reach agreement. In such case,
it must be admitted that the State which is normally competent has lost its right to act alone
as a result of the unconditional and arbitrary opposition of another State. This amounts to
admitting a "right of assent", a "right of veto", which at the discretion of one State paralyses
the exercise of the territorial jurisdiction of another.
That is why international practice prefers to resort to less extreme solutions by confining itself
to obliging the States to seek, by preliminary negotiations, terms for an agreement, without
subordinating the exercise of their competencies to the conclusion of such an agreement.
Thus, one speaks, although often inaccurately, of the "obligation of negotiating an agreement".
In reality, the engagements thus undertaken by States take very diverse forms and have a
scope which varies according to the manner in which they are defined and according to the
procedures intended for their execution; but the reality of the obligations thus undertaken
is incontestable and sanctions can be applied in the event, for example, of an unjustified
breaking off of the discussions, abnormal delays, disregard of the agreed procedures,
systematic refusals to take into consideration adverse proposals or interests, and, more
generally, in cases of violation of the rules of good faith.
States are today perfectly conscious of the importance of the conflicting interests brought
into play by the industrial use of international rivers, and of the necessity to reconcile them
by mutual concessions. The only way to arrive at such compromises of interests is to conclude
agreements on an increasingly comprehensive basis. International practice reflects the
conviction that States ought to strive to conclude such agreements; there would thus appear
to be an obligation to accept in good faith all communications and contracts which could,
by a broad comparison of interests and by reciprocal good will, provide States with the best
conditions for concluding agreements.
But international practice does not so far permit more than the following conclusion: the rule
that States may utilize the hydraulic power of international watercourses only on condition of
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a prior agreement between the interested States cannot be established as a custom, even less
as a general principle of law.
As a matter of form, the upstream State has, procedurally, a right of initiative; it is not
obliged to associate the downstream State in the elaboration of its schemes. If, in the course
of discussions, the down stream State submits schemes to it, the upstream State must
examine them, but it has the right to give preference to the solution contained in its own
scheme provided that it takes into consideration in a reasonable manner the interests of the
downstream State.
The Lake Lanoux Tribunal held that, although the State Parties had failed to reach agreement, France
had sufficiently involved Spain in the preparation of its development scheme.
5.2.3.2 supporting Documentation
1. The 1997 UN Watercourses Convention. SEE APPENDIX A.
2. World Bank Operational Policies (OP 7.50): Projects on International Waterways and Bank
Procedures (BP 7.50): Projects on International Waterways. SEE APPENDIX B.
3. The Helsinki Rules (Campioni Consolidation) and the Commentary to the Helsinki Rules on
the Uses of the Waters of International Rivers, ILA Report of the Fifty--Second Conference,
Helsinki 1966, at 484, 484-505 (1966, 1987): Arts. J-XI, 4. SEE APPENDICES C and D.
Coming from the non-governmental International Law Association (ILA), the Helsinki
Rules, a predecessor to the 1997 UN Watercourses Convention, are not inter-governmentally
authoritative, technically speaking. However, they reflect many years of research by a
representative body of international law experts and therefore come within the terms of
Article 38(i.)(d) of the Statute of the International Court of Justice.
4. "The Convention on the Protection and Use of Transboundary Watercourses and International
Lakes," done at Helsinki, Finland, on 17 March 1992 ("Helsinki Convention"). SEE APPENDIX
E.
5. Mechlem, Kerstin, "International Groundwater Law: Towards Closing the Gaps?", Yearbook of
International Environmental Law, Volume 14 (2004), pp. 47-80.
6. Paisley, Richard Kyle., "Adversaries into Partners: International Water Law and Down Stream
Benefits", 3 (2) Melbourne Journal of International Law 280 (2002). SEE APPENDIX F.
7. Caponera, Dante A., "The Role of Customary International Water Law", in Water Resources
Policy for Asia 365, 367-68, 372, 380-81 (M. Ali, G. Radosevich & A. Khan eds., 1985). SEE
APPENDIX G.
8. Sadoff, Claudia W. and David Grey, "Beyond the river: the benefits of cooperation on
international rivers", 4 Water Policy 389-403 (2002). SEE APPENDIX H.
5.2.4
Discussion Questions
SEE TEACHER'S MANUAL FOR "MODEL" ANSWER TO STIMULATE DISCUSSION
1. Is the multifactor test of the 1997 UN Watercourses Convention adequate to the task of
resolving disputes relative to the sharing of the waters of international rivers? Why? Or
why not?
Currently, there may be no duty under international law requiring co-basin States to seek the
optimum rational development of common water resources on a basin-wide scale. It has been
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inferred from the decision in the Lake Lanoux Arbitration for example, that there is no duty to
attempt forms of water utilization that would lead to an optimal use of the waters considering
all the interests involved. Nevertheless, a principle of optimal use, requiring co-basin state(s)
to cooperate in making the most economically efficient use of a transboundary river and its
resources, is today emerging due in part to the pressure of increased demand for water by an
ever growing world population.
There is presently growing recognition of a need to develop international watercourse
resources on a multi-State basis, and in recognition of their common interest co-basin
state(s) more and more enter into joint planning and development agreements governing
international drainage basins.
See, for example, the November 5, 1977 Agreement between Bangladesh and India on the
Sharing of the Ganges' Waters.
See also the July 3, 1978 Draft Treaty for Amazonian Cooperation.
The Treaty between the United States and Canada Relating to the Cooperative Development
of Resources of the Columbia River Basin,38 which authorized the United States to construct
a hydroelectric dam on Canadian territory for energy production and flood control purposes
on condition of recompense to Canada in the form of both hydroelectric power and dollars,
is an especially noteworthy case in point. It is an excellent example of how one co-basin State
(a lower riparian) with the resources to make optimal use of a river's potential was allowed by
another co-basin State (an upper riparian) to exploit the latter's river jurisdiction to the benefit
of both States to a degree greater than either could have obtained independently.
2. Should international law impose a duty of optimal use on cobasin state(s)? Why?
Why not?
When manipulating river systems for flood-control, irrigation, hydroelectric, and other
praiseworthy purposes, governmental authorities and private contractors do not always take
adequately into account the potential consequences of their environmental intervention. For
example, in the simulation case, Upstream's dam resulted in a "major decline in a certain river
fish upon which Downstream diets historically have depended". In this context, consider the
following remarks of Dr. Jimoh Omo Fadaka:39
"What happens when we dam the flow of a great river and create an immense body of water
where there was none before"?
Not enough thought was given to this question in the 1950s and 1960s as dozens of big dams
went up from Pakistan to Ghana, Egypt to Brazil. Dams were praised for their image of instant
progress, and as a catalyst for exponential economic growth. Dams can serve to generate
energy, provide water for livestock, irrigate crops, control floods, and create a reliable water
supply for further development and settlement.
In the past few years, however, big dam owners the world over have begun to compare
notes40 and discover that when a dam is put in place, aspects of the river system are altered:
the water's chemistry, populations of indigenous flora and fauna; the lifestyle and culture
of surrounding human populations; the fertility and salinity of the soil downstream; and
the pressure on the earth's crusts effecting the tendency to seismic activity in the form of
earthquakes and landslides.
It has been found that Egypt's Aswan High Dam project has had several effects in the region
such as eliminating vital nutrients maintaining fish stocks, contributed to the shrinking of
81
38 Jan. 17, 1961, 15 U.S.T. 1555, T.I.A.S. No. 5638
39 See "The Misuse of Science and Technology", Doc. No. 17, World Future Studies Conference on Science and Technology and the Future,
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lakes, and has concentrated insecticides, herbicides and molluscides which produce massive
fish kill. In addition, the fertile Nile Delta which is constantly eroded by the wash of the river
and attack from the sea, is no longer protected by the sediment which used to be carried down
the river prior to the dam being built. The dam's electricity-generating capacity is enormous,
producing 10,000 million kilowatt-hours yearly.
Lake Nasser, which covers the Sudanese town of Wadi Halfa, was designed to store some 35.2
billion gallons and reach capacity by 1970. However it is only half full and may never reach
capacity. Evaporation alone takes 3.3 billion gallons of water a year from the lake, 50 per cent
more than the engineers' original estimate. Moreover, Lake Nasser's entire 300 mile western
bank is porous Nubian sandstone, which can absorb more quantities of water. Altogether the
Lake is losing about one-third of the water flowing into it (6.6 billion gallons yearly).
True, Egyptians are no longer threatened by the Nile's yearly floods. However, in benefiting
from that safety, they no longer receive the 100 million tons of fertile silt that was deposited
yearly and is now gathering on the bottom of Lake Nasser. All six million of Egypt's cultivated
acres will soon require much more fertilizer than prior to the construction of the Dam,
amounting to upwards of $100 US million.
Egypt loses 18,000 tons of sardines a year because of the dam's effects on the Nile's silt
deposition. Also, the heavy use of water in irrigation projects and their generally poor drainage
systems have caused a rise in underground water levels and a consequent accumulation of soil
salts. This accumulation has forced Egypt to start installing underground drains on the million
waterlogged acres of the delta. It is the most ambitious drainage project in the world, costing
more than $180 US million.
Where super-dams have gone up in Africa and Asia, the reservoir lakes and irrigation canals
have brought a dramatic increase in water borne diseases. The surfaces of lakes and canals
offer superb breeding conditions for malarial mosquitoes.
The decision of a State to build a dam, "super" or otherwise, can unmistakably have vast
ramifications for itself and its neighbours.
Is there any role for international law to play in the initial decision?
Or is international law, as to the really "big" questions, called upon too late to do much good?
Would it be possible in such situations to require an assessment procedure that includes
impact analyses before at least major environmental initiatives are undertaken? For instructive
insights, see J. Schneider, "World Public Order of the Environment: Towards an International
Ecological Law and Organization" (1979); Appelbaum, "Controlling the Environmental
Hazards of International Development", 5 Ecology L.Q. 1 (1972).
Over the years, many developing countries such as Upstream have been concerned that
the growing interest of the economically developed nations in international environmental
protection will, because of the cost of such protection, impact negatively upon their economic
development. Indeed, believing that most of the world's environmental problems are
caused by the industrialized countries, many have viewed the imposition of international
environmental controls upon them as a form of neocolonialism. Since the 1972 United
Nations Conference on the Human Environment in Stockholm, however, as elaborated in
Leonard & Morell, "Emergence of Environmental Concern in Developing Countries: A Political
Perspective", 17 Stan. J. Int'l. L, 281, 283 (1981), "Third World governments and international
development assistance agencies have devoted an increasing amount of attention to pollution
problems...and to analyzing the environmental impacts of development projects".
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On the other hand, as the same author goes on to remark, at 284-85:
While there is no question that the level of awareness about environmental
problems has increased markedly in developing countries... it is quite another
matter to conclude that these countries are actually moving closer to alleviating
the problems. Indeed, the contrary may be true. Industrial pollution is worsening
in most developing countries in spite of all the new policies, regulations, and
governmental agencies. Although this is to be expected in countries which are only
now undergoing rapid industrial growth, the air and water quality in Ankara, Mexico
City, Săo Paulo, Seoul, Bangkok, and numerous other places in the developing world,
appears to be worse than in comparable urban areas in developed countries.
Of perhaps even greater significance for human welfare and long term economic
development, there is little evidence in the developing world that the serious rural
environmental problems of soil erosion, decertification, and deforestation are being reversed.
Many developing nation governments continue to clear-cut forests and perpetuate policies
and incentives that lead to massive losses of fertile agricultural soils, even when they are
aware that such policies turn once productive lands into deserts. These forms of environmental
degradation are often exacerbated by the poverty of millions of people who must eke out a
living by overtaxing already fragile natural resources. In the longer term, natural resources
depletion by governments and impoverished individuals is likely to cause even greater human
poverty and suffering and to hamper severely economic development in the rural sections of
developing countries.
3. What kind and degree of environmental responsibility should be imposed upon
developing and other countries in their pursuit of economic development?
Also, what kind of responsibility should be imposed on international, national, and private
lending institutions that help to finance development projects? Or upon public and private
contractors that carry the projects out?
Should persons responsible for the planning, financing, and implementation of development
projects be held individually responsible for failing to safeguard against environmental harms
that could reasonably result from the development projects they plan, finance, and carry out?
If so, to what extent? If not, why not?
5.3
simulation exercise # 2 -- The "Tree"
5.3.1
Introduction
scenario:
The exercise which follows provides a "hands on" introduction to the art of interest-based negotiation.
This exercise is a simple negotiation between two neighbours over the future of a tree straddling
the property line between their adjacent properties. Among other things this exercise is designed to
illustrate the advantages while negotiating of focussing on "interests" rather than "positions".
Major lessons:
· Power of option creation.
· Power of interest based negotiation techniques.
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Teaching Materials:
· Teacher's Package:
Confidential Instructions for "Neighbour # 1"and "Neighbour # 2"
key words/themes:
Multi-party negotiation; interest-based negotiations
SEE TEACHING PACKAGE FOR DETAILED INSTRUCTIONS FOR PARTICIPANTS
5.4
simulation exercise #3 ­ Positions vs Interests
5.4.1
Introduction
The objective of this exercise is to determine the difference between positions and interests. Positions
do not allow for many options other than the one expressed. This makes negotiation difficult as there
is only one option available. Interests allow for a far greater range of options to meet the interests in
order to form acceptable agreements.
For example, the statement "this dam will be run to maximise power production" does not allow for
any other possibility but to operate the dam. In contrast, "I want to secure my crop from drought to
have a stable income" expresses an interest and indeed answers the fundamental question why it is
important. The goal of securing crops may be accomplished in many ways, from irrigation to fertiliser
to crop rotation etc. The idea that the fundamental interest is to secure income allows for even more
options as it opens up the possibility of micro-financing, cooperative systems, new credit unions,
agreements on crop prices and so on. All these can be part of an agreement in terms of meeting the
interests of the negotiating parties.
Major lessons
Focussing on interests tends to allow greater possibilities for agreement. Interests express the
concerns and needs of one party without restricting or obligating the other party. The actions which
result from the agreement will likely demand certain compromises from all parties; however, the point
is that they are not `imposed'.
Generally, positions either impose actions or restrict opportunities for other parties. They are thus
much more restrictive than interests. Positions do not usually allow for the possibility of alternatives
other than the one presented.
from Positions to Interests
To get down to interests simply ask, "Why is that important"? Eventually, usually within a couple of
answers, interests begin to emerge.
For example:
Position: "We must run this Dam to optimize power."
Question: "Why is that important?"
Answer: "Because we need cheap energy to develop."
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Interest: The need for cheap energy allows exploration of other possibilities to obtain cheap energy or
to create more energy efficient industries.
5.5
simulation exercise # 4 -- The "Prisoner's Dilemma" exercise
5.5.1
Introduction
scenario:
Participants' sole objective is to do the best they can to develop a high level of benefit from a series
of eight transactions. Participants are to play either an X or a Y and, depending on other participants'
choices, a payoff is awarded each round. Only before rounds 5 and 8 are players allowed to confer
with each other.
This exercise is played in eight quick rounds. Players are grouped. Explanation of the exercise should
take no more than five minutes. The eight rounds should take about 15 minutes, while debriefing can
take from 30 to 45 minutes.
Major lessons:
This is a so-called "social trap" exercise, in which long-term maximization requires unenforced mutual
trust where significant short-term gains are possible by breaking that trust. Communication must be
implicit and is hence highly ambiguous and subject to misinterpretation, usually by the projection of
negative and adversarial intentions that don't actually exist.
The exercise highlights the frequency with which we make imprecise and inadequately supported
assumptions, suggesting the importance of making and keeping assumptions explicit and testing
them periodically.
The difference between reacting to the other side's moves (or one's perception of what those moves
mean, or will be), and acting purposefully to influence the other side to (re)act constructively, is
easily illustrated by comparing the experience of different teams. The monetary variation tends to be
dramatic between cooperative and competitive games, and analysis usually suggests that to establish
the former some team has to take a risk.
The danger of self-fulfilling assumptions is also illustrated. Parties can turn cautious competitors into
the cutthroat adversaries they fear by proceeding with preemptive ruthlessness.
Teaching Materials:
For all parties:
· General Instructions
Teacher's Package:
· All of the above
· Teaching Note
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keywords/Themes
Assumptions; Commitment; Communication; Competition v. Cooperation; Compliance; Credibility;
Decision analysis; Game theory; Group process; Joint gains; Meaning of "success"; Message analysis;
Risk aversion; Risk perception; Trust
5.5.2
Prisoner's Dilemma exercise
general Instructions
The group of people that you are sitting with will undertake a series of transactions with a similar
group seated somewhere else in the room. These might be thought of as simulations of the
transactions that might go on between governments, organizations, department, family units or
individuals.
In this simulation, one of the groups will be called the RED GROUP, and the other will be called the
BLUE GROUP. There may be several RED GROUPS and BLUE GROUPS at work at the same time,
but you will be dealing with only one of these other groups.
In a series of eight transactions between the RED GROUP and the BLUE GROUP, the objective will
be to do the best that you can to develop a high level of benefit from the transactions. The results of
these transactions will be represented by an accumulating numerical sum that will depend upon what
each of the two groups decide to do in a transaction.
In each of the eight transactions, each group will decide on a message to send to the other group--a
message being one of these three sets of symbols:
XX or XY or YY
In formulating a message, neither of the groups will know what the other has decided to send. Except
as specified below, there will be no communication between the groups. A neutral "messenger" who
is not a member of either group will carry the messages between the groups. Several minutes will be
allowed for each group to decide upon its message in each transaction.
When the messages have been exchanged, the two sets of two symbols will be combined to form a
four letter transaction which determines the value of each group's contribution to the transaction,
as follows:
If THe cOMbIneD TransacTIOn Is.
THen yOur grOuP's resulT Is :
4 Xs
- 10 for each X in your group's message
3 Xs and 1 Y
+ 10 for each X in your group's message

- 30 for each Y in your group's message
2 Xs and 2 Ys
+ 20 for each X in your group's message

- 20 for each Y in your group's message
1 X and 3 Ys
+ 30 for each X in your group's message

- 10 for each Y in your group's message

4 Ys + 10 for each Y in your group's message
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for example:
If the RED GROUP sent XX as a message, and the BLUE GROUP sent XY as a message, the
combined messages would form the transaction XXXY.
The result of XXXY is that each group gets a + 10 for each X in its two letter message, and -30 for each
Y in its two letter message.
The RED GROUP, having sent XX as its message, receives a value of +20 in this transaction: (+10) for
each X = (+20).
The BLUE GROUP, having sent XY as its message, receives a value of -20 in this transaction: (+ 10) for
the X and (-30) for the Y = (-20).
The exception to the "no communication" rule is that, prior to the exchange of messages in the fifth
and eighth transactions, an additional time will be allotted for a single representative from each group
to meet (if the groups agree to do so) to discuss whatever group members have instructed these
representatives to talk about. The meeting of these two representatives will be at some place out of
the sight and hearing of the RED GROUP and the BLUE GROUP.
After the meetings of representatives have been held (if they are held), the groups will exchange
messages in the usual manner. However, the results of the fifth transactions will be multiplied by five
(5), and the results of the eighth transaction will be multiplied by ten (10).
1) Calculate the value of the transaction for your group from the two letters in the message that you
sent to the other group.
A period of five minutes will be given for you to read these instructions and discuss them with the
members of your group. No additional instructions, or interpretations of these instructions, will
be given.
Your group, or your group's representative to the discussions in the fifth and eighth transactions, may
be watched by an "observer." This person may also watch the work of the other group. The observer is
not permitted to discuss his/her observations on the simulation until the general discussion period at
the end of the exercise.
Your cooperation in adhering to the time limits in this exercise will be greatly appreciated.
RED GROUP
XX
XY
YY
XX
XXXX XXXY XXYY
XY
XYXX XYXY XYYY
BLUE GROUP
YY
YYXX YYXY YYYY
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reD
Blue
transactIon
grouP
grouP
results
DecIsIon
DecIsIon
tHIs transactIon
cumulatIve
#1
#2
#3
#4
#5
X 5
#6
#7
#8
X 10
5.6
simulation exercise # 5 ­ The vancouver river Part Two
5.6.1
Introduction
This simulation exercise begins with the identical fact pattern as the simulation exercise done
previously in Negotiation Simulation Exercise # 1. Three key differences between this exercise and
Negotiation Simulation Exercise # 1 are as follows:
First, the resolution of this exercise should be attempted using "interest based" negotiation techniques
rather than using a strictly legal approach. Second, unlike Exercise # 1, this exercise will have teams
who will also have "internal" as well as "external" differences of interests and therefore will require a
significant internal problem solving negotiation within each team before any subsequent "external"
problem solving negotiation can take place. Third, unlike Exercise # 1, this exercise may include an
optional "third party neutral" who may attempt to facilitate a resolution of the conflict.
scenario
Originating in a high mountain range studded with glaciers and flowing south-westerly some 2000
miles to the ocean, the Vancouver River has always been a life sustaining source of water for the state
of Upstream and the Republic of Downstream.
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However, beginning about twenty years ago global climate change apparently caused the Vancouver
River to shrink to half its normal size, leading to forced water rationing in both countries and resulting
in crop failures, food shortages and related misfortunes.
Upstream sought to rectify this problem by constructing, with foreign capital, a large dam in Upstream
on the Vancouver River. According to Upstream, the dam would make possible the recovery of arable
land lost through decertification, the development of irrigated "green belts" and the generation of rural
hydroelectric power. However, this action, together with a greater diversion of water for irrigation
than originally had been planned, appeared to lead to rapidly increased decertification in Downstream
and a consequent major decline in a certain river fish upon which Downstream diets historically have
depended. Additionally, it caused a decline in the quality of the river water to Downstream because of
increased pesticide use and run-off in Upstream's newly created "green belts".
Downstream now demands that the flow of the Vancouver River be restored to its normal level
and that Upstream take steps to remedy the pesticide problem. Upstream has responded that the
current river flow is critical to the success of its green belt irrigation program and has dismissed the
suggestion that the use of pesticides damages the health of Downstream citizens.
In the face of threats of military action on Downstream's part, representatives from Downstream and
Upstream have agreed to meet.
Major lessons:
· Importance of agenda control.
· Power of option creation.
· Power of interest based negotiations.
· Importance of reaching agreement on terms and scientific facts before negotiating.
· Impact of BATNA on the negotiation.
Teaching Materials:
For all parties:
· Disclaimer
· Fact Pattern
· Questions Presented
· Background Materials
· Logistics
Role-specific--Confidential instructions for:
· Red ­ Foreign Minister of Upstream
· White ­ Deputy Minister of Water Resources for Upstream
· Blue ­ International law advisor to Upstream
· Stripes ­ Foreign Minister of Downstream
· Dots ­ Deputy Minister of Environment for Downstream
· Dashes ­ International law advisor to Downstream
· A ­ Neutral facilitator /mediator (optional)
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Teacher's Package:
· All of the above
· Detailed teaching notes
keywords/Themes:
Multi-party negotiation; transboundary water disputes; water quality and quantity negotiations;
cross-cultural negotiations; facilitation.
5.6.2 The simulation
negotiation simulation exercise # 5 -- vancouver river Part Two
Disclaimer
This simulation exercise is entirely made up for teaching purposes only. Any resemblance between
this simulation and any real situations or real persons, living or dead, is purely coincidental.
fact Pattern
Originating in a high mountain range studded with glaciers and flowing southwesterly some 2000
miles to the ocean, the Vancouver River has always been a life sustaining source of water for the state
of Upstream and the Republic of Downstream.
However, beginning about twenty years ago, global climate change apparently caused the Vancouver
River to shrink to half its normal size, leading to forced water rationing in both countries and resulting
in crop failures, food shortages and related misfortunes.
Upstream sought to rectify this problem by constructing, with foreign capital, a large dam in Upstream
on the Vancouver River. According to Upstream, the dam would make possible the recovery of arable
land lost through decertification, the development of irrigated "green belts" and the generation of rural
hydroelectric power. However, this action together with a greater diversion of water for irrigation than
originally had been planned, appeared to lead to rapidly increased decertification in Downstream
and a consequent major decline in a certain river fish upon which Downstream diets historically have
depended. Additionally, it caused a decline in the quality of the river water to Downstream because of
increased pesticide use and run-off in Upstream's newly created "green belts".
Downstream now demands that the flow of the Vancouver River be restored to its normal level
and that Upstream take steps to remedy the pesticide problem. Upstream has responded that the
current river flow is critical to the success of its green belt irrigation program and has dismissed the
suggestion that the use of pesticides damages the health of Downstream citizens.
In the face of threats of military action on Downstream's part, representatives from Downstream and
Upstream have agreed to meet.
Questions Presented
Assume both Upstream and Downstream each have a team of three individuals representing them (as
designated by the instructor).
Assume further that there may be honest disagreements within as well as between each team.
Each team has now been instructed to negotiate with the other team with a view towards reaching an
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5
agreement that will resolve the disputes between the parties over the Vancouver River.
A neutral facilitator has been retained to assist the parties.
Any agreement reached must have the full support of both the parties.
Parties
There are seven parties to this simulation as follows:
Red ­ Foreign Minister of Upstream. Red is not a lawyer but it is important for her that Upstream
not be seen to be violating international law. Prior to becoming Foreign Minster, Red was a senior
commander in the Upstream armed forces.
White ­ Deputy Minister of Water Resources for Upstream and a career civil servant. White was
hired from Canada because of her success in negotiating agreements between Canada and the
United States to equitably share downstream benefits on international rivers. White is expected to
try to improve the relationship of Upstream with Downstream in order to help Upstream meet its
objectives.
Blue ­ International law advisor to Upstream, an independent consultant and best friends with the
Foreign Minister of Upstream. Blue is experienced in overcoming every possible obstacle, by whatever
means necessary, to achieve Upstream objectives on time and on budget.
Stripes ­ Foreign Minister of Downstream. Stripes is angered and saddened by the way Downstream
has been treated in the past. However, Stripes is known to be very pragmatic. Stripes envisions the
future of Downstream as one of self-sufficiency and growth. She is determined to see Downstream
prosper.
Dots ­ Deputy Minister of Environment for Downstream and a career civil servant. Dots has never
forgotten how Upstream treated Downstream in a similar negotiation involving a different River over
20 years ago. More recently, Dots has unsuccessfully tried to contact officials at Upstream many times
with problems relating to the Vancouver River. Dots feels that this is the perfect opportunity to right
the historic wrongs that have been perpetrated by Upstream. Rumour has it Dots intends to resign
from the civil service and run against Stripes in the next national election. Dots is openly suspicious of
the idea of a mediator.
Dashes ­ International law advisor to Downstream and a career civil servant. Stripes has heard great
things about Dashes involvement in other negotiations and has personally asked Dashes to help out
with these negotiations.
Mr. A. has had significant experience dealing with matters of this kind.
logistics
10 MInuTes: InTrODuce
---Review basic Fact Pattern.
---Objective of the Game.
---Scenario and role descriptions.
---Description of role preparation.
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50 MInuTes: PrePare
---Players read instructions by themselves.
---Players complete Issue Chart provided in confidential instructions.
---Players meet in same role groups.
---Trainers available to answer questions.
90 MInuTes: negOTIaTe InTernally
---Upstream and Downstream prepare for negotiations with each other.
---Don't share Confidential Instructions!
---Be Prepared.
90 MInuTes: negOTIaTe exTernally
---Upstream and Downstream negotiate.
---Don't share Confidential Instructions!
---Reach an Agreement, if you can.
60 MInuTes: DebrIef
---Review of Outcomes: Who Got What?
---Discussion and Lessons Learned.
SEE TEACHING PACKAGE FOR CONFIDENTIAL INSTRUCTIONS FOR INDIVIDUAL
PARTICIPANTS
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5.6.3
background Materials
· The 1997 UN Watercourses Convention. SEE APPENDIX A.
· World Bank Operational Policies (OP 7.50): Projects on International Waterways and Bank
Procedures (BP 7.50): Projects on International Waterways. SEE APPENDIX B.
· The Helsinki Rules (Campioni Consolidation) and the Commentary to the Helsinki Rules on
the Uses of the Waters of International Rivers, ILA Report of the Fifty-Second Conference,
Helsinki 1966, at 484, 484-505 (1966, 1987): Arts. J- XI 4. SEE APPENDICES C and D.
Coming from the non-governmental International Law Association (ILA), the Helsinki Rules, a
predecessor to the 1997 UN Watercourses Convention, are not intergovernmentally authoritative,
technically speaking. However, they reflect many years of research by a representative body of
international law experts, and therefore come within the terms of Article 38(i.)(d) of the Statute of the
International Court of Justice.
· The Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, done at Helsinki, Finland , on 17 March, 1992 ("Helsinki Convention"), SEE
APPENDIX E.
· Paisley, Richard Kyle., "Adversaries into Partners: International Water Law and Down Stream
Benefits". 3 (2) Melbourne Journal of International Law 280 (2002). SEE APPENDIX F.
· Caponera, Dante A., "The Role of Customary International Water Law," in Water Resources
Policy for Asia 365, 367-68, 372, 380-81 (M. Ali, G. Radosevich & A. Khan eds., 1985). SEE
APPENDIX G.
· Sadoff, Claudia W. and David Grey, "Beyond the river: the benefits of cooperation on
international rivers", 4 Water Policy 389-403 (2002). SEE APPENDIX H.
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5.7
simulation exercise # 6 -- The elinehtton river basin
5.7.1
Introduction
scenario:
The Elinehtton River is a major international drainage basin with two main tributaries: 1) the
Minotaur and 2) the Taurus. See attached Map. The Minotaur exhibits a strong seasonal component
with one major runoff period. Base flow is limited, while occasional flooding occurs during the rainy
season. The Taurus exhibits a moderate flow regime.
Two dams currently exist in the system. Dam 1 has a large reservoir capacity and guarantees A
reasonable water security. However, Dam 1, because of its particular location, loses up to 40 %
of its volume each year due to massive evaporation. Dam 2 has as its main objective hydropower
production. Storage capacity is small and energy production fluctuates over the year as a function of
the runoff regime of the Minotaur.
Plans exist for new dams in C and D. Their construction changes the regime of the river system as well
as the overall water demand pattern. The construction of new dams in C and D also lead to new water
demands, with the consequence that future demands will exceed the availability of the water resource.
A large part of A is characterized as arid or semi-arid. The same applies for B, although this country
receives substantial seasonal rainfall in its upstream areas. Both C and D are endowed with abundant
rainfall. However, precipitation in D shows a strong temporal and spatial variability and the country
experiences occasional drought years. By contrast, rainfall in C is uniformly spread over the year.
Drought years do occur but are rare.
50% of the entire basin's waters originate in D, while 30% come from C, and B and A produce 15%
and 5% respectively.
Major lessons:
· Importance of agenda control.
· Power of option creation.
· Importance of reaching agreement on terms and scientific facts before negotiating.
· Impact of BATNA on the negotiation.
· Application of international water law principles including equitable and reasonable
utilization and equitable sharing of downstream benefits.
Teaching Materials:
For all parties:
· Teaching Note and Overview for All Parties
· Scenario
· Today's Meeting
· Logistics
· Map
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Role-specific--Confidential instructions for:
· Representative of Country A
· Representative of Country B
· Representative of Country C
· Representative of Country D
· Facilitator / Mediator (optional)
Teaching Package:
· All of the above.
· Detailed teaching notes.
keywords/Themes:
Multi-party negotiation; science-intensive policy disputes; equitable sharing; downstream benefits;
transboundary environmental disputes; water quality and quantity negotiations; cross-cultural
negotiations; facilitation
5.7.2
The simulation
simulation exercise # 6 -- The elinehtton river basin
Disclaimer:
This case study simulation is a made up simulation for teaching purposes only. Although based
on fact, any resemblance between this simulation and any real international basin and/or any real
persons, living or dead, is purely coincidental.
additional Material
These additional materials should be distributed with the simulation:
· Map of the Elinehtton River basin.
· The 1997 UN Watercourses Convention. SEE APPENDIX A.
· World Bank Operational Policies (OP 7.50): Projects on International Waterways and Bank
Procedures (BP 7.50): Projects on International Waterways SEE APPENDIX B.
· The Helsinki Rules and the Commentary to the Helsinki Rules on the Uses of the Waters of
International Rivers, ILA Report of the Fifty--Second Conference, Helsinki 1966, at 484, 484-
505 (1966, 1987): Arts. J- XI 4. SEE APPENDICES C and D.
Coming from the non-governmental International Law Association (ILA), the Helsinki Rules, a
predecessor to the 1997 UN Watercourses Convention, are not intergovernmentally authoritative,
technically speaking. However, they reflect many years of research by a representative body of
international law experts, and therefore come within the terms of Article 38(i.)(d) of the Statute of the
International Court of Justice.
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· "The Convention on the Protection and Use of Transboundary Watercourses and International
Lakes," done at Helsinki, Finland , on 17 March 1992 Helsinki Convention. SEE APPENDIX E.
· Paisley, Richard Kyle., "Adversaries into Partners: International Water Law and Down Stream
Benefits". 3 (2) Melbourne Journal of International Law 280 (2002). SEE APPENDIX F.
· Caponera, Dante A., "The Role of Customary International Water Law," in Water Resources
Policy for Asia 365, 367-68, 372, 380-81 (M. Ali, G. Radosevich & A. Khan eds., 1985).
SEE APPENDIX G.
Teaching note and Overview
This is a multi-party negotiation between four hypothetical states: A, B, C and D on the Elinehtton
River Basin.
The exercise involves the negotiation of a clause for the equitable sharing of benefits between the four
hypothetical states.
fact Pattern
The Elinehtton River is a major international drainage basin with two main tributaries: 1) the
Minotaur and 2) the Taurus. See attached Map. The Minotaur exhibits a strong seasonal component
with one major runoff period. Base flow is limited, while occasional flooding occurs during the rainy
season. The Taurus exhibits a moderate flow regime.
Two dams currently exist in the system. Dam 1 has a large reservoir capacity and guarantees A
reasonable water security. However, Dam 1, because of its particular location, loses up to 40 %
of its volume each year due to massive evaporation. Dam 2 has as its main objective hydropower
production. Storage capacity is small and energy production fluctuates over the year as a function of
the runoff regime of the Minotaur.
Plans exist for new dams in C and D. Their construction changes the regime of the river system as well
as the overall water demand pattern. The construction of new dams in C and D also lead to new water
demands, with the consequence that future demands will exceed the availability of the water resource.
A large part of A is characterized as arid or semi-arid. The same applies for B, although this country
receives substantial seasonal rainfall in its upstream areas. Both C and D are endowed with abundant
rainfall. However, precipitation in D shows a strong temporal and spatial variability and the country
experiences occasional drought years. By contrast, rainfall in C is uniformly spread over the year.
Drought years do occur but are rare.
50% of the entire basin's waters originate in D, while 30% come from C, and B and A produce 15%
and 5% respectively.
The following tables describe various key country characteristics:
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cOunTry
key cHaracTerIsTIcs
A
Dry; water scarce; high population growth; emerging economy; agriculture has a strong tradition;
all agricultural activities require irrigation; potential for export of electricity; potential for tourism;
strong agricultural lobby; creating employment for increasing population and increased national
income is the main focus of the national development policy.
B
Large irrigation potential; rainfall is not reliable and most agriculture requires irrigation; low water
use efficiency; strong agricultural tradition; strong agricultural lobby; potential for developing
mineral resources and hydroelectric power; high population growth.
C
High population growth; emerging economy; agriculture has a strong tradition but irrigation is
limited; agricultural production will increase significantly if reliable access to water can be assured
during the growing season; large potential for supplementary irrigation through valley tanks
and water harvesting; significant hydroelectric potential; development policy is focused on food
security, national income and providing employment for increasing population.
D
Favourable climatic conditions for wide scope of agricultural activities throughout the year; high
population growth; low agricultural productivity; agriculture is a dominant economic sector;
hydroelectric development potential.
cOunTry
selecTeD DevelOPMenT OPPOrTunITIes
A
Export of electricity and tourism.
B
Export of electricity and high quality agricultural produce.
Large hydropower potential for domestic self sufficiency and export, production of high-end
C
agricultural produce for domestic market.
Hydropower potential for domestic use and export; production of agricultural produce for
domestic market; limited potential for production of agricultural produce for international market
D
(in particular bio-fuels if prices of crude oil stay at current level of US$ 60 per barrel, and if
international green house gas reduction measures are implemented).
Today's Meeting
The participants to today's meeting have previously met three times and feel that an agreement on
the equitable sharing of past, present and future benefits from the River Basin may be possible.
However, because the discussions have been so emotionally charged, it has been suggested that a
mediator/facilitator may be called in to help.
A list of potential individuals was reviewed and one acceptable to all the parties has been chosen.
Parties to the negotiation
Representative of Country A
Representative of Country B
Representative of Country C
Representative of Country D
Facilitator / Mediator (optional)
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logistics
10 MInuTes: InTrODuce
---Review basic Fact Pattern.
---Objective of the Game.
---Scenario and role descriptions.
---Description of role preparation.
50 MInuTes: PrePare
---Players read instructions by themselves.
---Players meet in same role groups.
---Trainers available to answer questions.
90 MInuTes: negOTIaTe exTernally
---Four party negotiation.
---Don't share Confidential Instructions!
---Reach an Agreement, if you can.
60 MInuTes: DebrIef
---Review of Outcomes: Who Got What?
---Discussion and Lessons Learned.
SEE TEACHING PACKAGE FOR CONFIDENTIAL INSTRUCTIONS FOR INDIVIDUAL
PARTICIPANTS
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Elinehtton River Basin
C
B
4
Minotour
Flow
2
D
A
3
Taurus
Flow
Mouth
1
5.8
simulation exercise # 7 -- an International groundwater
negotiation simulation
5.8.1
Introduction
This exercise is a work in progress and currently being further developed and refined by Gabriel
Eckstein and Richard Kyle Paisley.
This exercise focuses on an aquifer shared by a number of developing countries and involves the
application of the emerging ILC Rules for the conservation and management of international
groundwater resources.
This negotiation exercise is designed to introduce participants to the multitude of issues related to
the negotiation of a transboundary ground water agreement. In the scenario presented below, a river
and an aquifer traverse the borders of three countries. While there are no existing agreements for
managing or regulating either the river or the aquifer, the countries are interested in such a possibility.
Of course, each country has its own interests and objectives for the use of these resources as well as
its own vision for any potential agreement. Participants in this negotiation simulation will be assigned
to represent one of the three countries and then asked to negotiate and draft specific provisions that
will serve as the basis for an agreement on the use of the river and aquifer.
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scenario:
Participants will be divided into negotiation teams of five to six members whereby each team
represents one of the States in the simulation exercise. Each State has distinct interests and objectives
in the use of the river and/or aquifer and in the negotiation exercise.
The negotiation teams will be provided with a basic fact pattern describing the States, including basic
information on their national objectives and interests in the use of the river and/or aquifer. Each
negotiation also will be provided with "secret" information and instructions describing additional
information and national interests concerning the river and/or aquifer. Each team's goal in the
negotiation simulation is to negotiate and draft provisions that are most favourable to their country
and its interests.
Following distribution of these materials, each negotiation team is expected to meet on its own
to prepare for the simulation exercise. Preparation includes studying the fact pattern and secret
instructions, developing a negotiations strategy that best achieves the country's objectives, considering
the points on which the negotiation team may be willing to compromise, developing fall-back and
alternative positions, considering alternative solutions, and drafting language for provisions that the
negotiations team might propose.
Each State subgroup is expected to negotiate its position based on the public and "secret" information
provided for the exercise. Compromise on an issue is permitted and encouraged but only to the extent
that such compromise is in the national interest of the compromising State as presented in the facts
and secret instructions.
To the extent time permits, either following the simulation or during the following class session, we
will review the exercise and discuss the strategies, obstacles, shortcomings and the like.
fact Pattern
The States of Arcadia, Brosnia and Cadland are neighboring countries. Geographically, Cadland lies to
the north of Brosnia and Arcadia, and Arcadia lies to the west of Brosnia. River Zini flows across the
border from Cadland into Brosnia and empties
into the Southern Ocean. The watershed of River
Zini does not extent to Aracdia.
In addition, all three countries overlie a large,
recently discovered and yet-unnamed aquifer.
Preliminary studies suggest that geographically,
60% of the aquifer underlies Brosnia, 20%
underlies Arcadia, and 20% underlies Cadland,
however, the true boundaries of the aquifer
are still uncertain. A chief dispute among the
region's water scientists pertains to the source of
the aquifer's recharge and whether the aquifer
is hydraulically connected to River Zini. Scientists in Cadland argue that such a connection does
not exist, or, at the very least, is insignificant, and that the aquifer is likely a non-recharging aquifer.
In contrast, Arcadian scientists are quite certain that the aquifer receives considerable amount of
recharge from River Zini. The studies of Brosnian scientists are mixed and inconclusive on these
issues. None of the countries has the knowledge base to conduct detailed studies of the aquifer's
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recharge or the hydraulic connection between the river and aquifer. Moreover, none is able to invest
the necessary resources in such an endeavor, especially since they must allocate their resources very
carefully in light of all of the other national priorities they each face.
The region's climate is relatively predictable with the rains coming primarily in the late winter and
early spring followed by a relatively dry summer and fall. The amount of rain that falls on the region,
however, varies from year to year and is often unpredictable. Although Brosnia does contribute some
water to the river, the great majority of the water in River Zini originates in Cadland. The actual
contribution of the two states to the flow of the Zini River has never been formally studied but is
estimated at 75% from Cadland and 25% from Brosnia. It is unclear whether and how much rainfall
in the region recharges the aquifer.
Arcadia has a primarily agrarian population of forty-five million, one-third of which reside in Arad
province, the country's arid interior located approximately 400 miles west of its border with Brosnia.
Although very fertile, the interior region has very few freshwater resources. Non-governmental
agencies suggest that as much as half of the population in this region does not have access to
adequate fresh water to meet basic daily needs. Accordingly, Arcadia's chief priority is to provide
for its citizens by developing new water resources to meet basic needs. It is especially interested in
enhancing the region's agricultural capacity. A number of Arcadian politicians and academics have
raised the possibility of pumping water from the newly discovered aquifer and diverting it to Arad.
Brosnia is a small country in comparison with its neighbors. Its land area is approximately one-quarter
the size of Cadland and one-third the size of Arcadia. Moreover, Brosnia has a population of only five
million. The scenery in this moderate to sub-tropical country is spectacular, in part, because much of
the country remains in its natural, pristine condition. The majority of the population lives along the
Southern Ocean and River Zini. In recent years, Brosnia has become closely allied with a number of
environment and tourism organizations. As part of that association, the country developed a growing
tourism industry that prides itself on pursuing a balance between development and environmental
goals. For example, expeditions on River Zini have become especially popular, in part, because of the
Brosnian Fish that inhabits the river. Brosnian Fish, which have been known to top 150 pounds and
grow to lengths of 1.5 meters, are found in the middle reaches of the Zini River (primarily in Brosnia).
They are highly dependent on the river's seasonal floods for breeding and development, as well as
the deep rapids of the middle reaches, which allow these large fish ample space to swim in highly
aerated waters. Expeditions are organized both to view the fish in its natural habitat as well as for
sport fishing.
Cadland is a mountainous country with a temperate climate and a population of twenty-two million.
Of the three countries, Cadland's population is experiencing fast growth due to religious restrictions
on contraception. Cadland believes that its greatest developmental obstacle is the lack of food
security. It is especially interested in developing the irrigation potential of River Zini through the
construction of dams and diversion canals in its territory. In fact, it has already begun construction
on the largest of the planned dams ­ Pioneer Dam ­ at a point seventy miles north of its border with
Brosnia. While Cadland claims that any downstream consequences would be insignificant, those
consequences have not been studied or identified.
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While all three countries are considered developing nations, Brosnia is a bit more economically
developed than the other two and is classified in the upper-middle income level according to The
World Bank classification system ($3,466 - $10,725 gross national income per capita). Arcadia and
Cadland are classified as falling in the lower-middle income category ($876 - $3,465 gross national
income per capita).
The Task
Arcadia, Brosnia and Cadland have agreed to meet to begin negotiating an agreement containing
both general principles and more specific provisions for the use and allocation of the Zini River and
the aquifer. During preparatory discussions, the three countries specifically agreed that the main
purpose of the meeting is to formulate provisions that, to the greatest extent possible, will:
1)
identify each states' rights in the Zini River and/or the aquifer;
2)
identify each states' responsibilities in the Zini River and/or the aquifer; and
Accordingly, each negotiation team is expected to bring to the negotiating table proposals for
provisions, including proposed language that would achieve these two objectives as well as the
respective national interests of the two countries. At the very least, both countries are expected to
offer provisions concerning the allocation and management of the Zini River. However, the countries
are also expected to bring to the table additional provisions that relate to the national interests of the
two countries.
Major lessons:
· Importance of agenda control.
· Power of option creation.
· Repercussions of voting procedures on the content and sustainability of the outcome.
· Importance of reaching agreement on terms and scientific facts before negotiating.
· Impact of BATNA on the negotiation.
Teaching Material:
See Teacher's Manual
keywords/Themes:
Multi-party negotiation; science-intensive policy disputes; transboundary environmental disputes;
water quality and quantity negotiations; cross-cultural negotiations; facilitation
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conclusion
cOnclusIOn
There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success,
than to take the lead in the introduction of a new order of things. For the reformer has enemies in all those
who profit by the old order, and only lukewarm defenders in all those who would profit by the new order, this
lukewarmness arising partly from fear of their adversaries ... and partly from the incredulity of mankind,
who do not truly believe in anything new until they have had actual experience of it.
- Niccolo Machiavelli
Transboundary water resources include "boundary" water resources where the boundary between two
or more sovereign states is formed by an international lake, river and "successive" water resources
where an international river (or underground aquifer) flows from one sovereign state to another.
There are at least two key reasons why transboundary water resources are critically important.
First, transboundary water resources are important because international agreements governing their
utilization serve not only to protect and promote sustainability but also affect security throughout an
entire basin. Importantly international agreements governing the utilization of transboundary water
resources tend to stabilize and enhance security at the regional level and the security return generated
is independent of the concrete ecological and economic benefits produced by such agreements.
Second, transboundary water resources are important because nearly half of the world's population
is located within one or more of the over 260 international drainage basins shared by two or
more states.41 Even more striking than the absolute number of international drainage basins,
is a breakdown of each nation's land surface which fall within these watersheds.42 At least 145
nations include territory within international basins. At least 21 nations lie in their entirety within
international basins including 33 countries which have greater than 95% of their territory within
these basins. All told 19 international drainage basins are shared by 5 or more riparians countries. The
Danube has 17 riparian nations. The Congo, Niger, Nile, Rhine and Zambezi are shared by between 9
and 11 countries. The remaining 13 basins have between 5 and 8 riparian countries.
Severe deforestation, soil erosion, salinization, toxic contamination, drought and flooding, and air and
water pollution are just some of the environmental calamities that can increase international tension
and lead to war. Conversely, the very process of reaching accommodation while developing bilateral
resources and environmental mechanisms for cooperation in a transboundary water context creates
a stabilizing and more transparent atmosphere. The mere fact of negotiation usually widens political
participation, builds political stability and spreads confidence between basin states. Even in cases in
which riparians merely agree to share information and exchange data, while agreeing to disagree on
substantive issues, increased confidence usually emerges.
103
41 International Bureau of the Permanent Court of Arbitration (ed.), The Resolution of International Water Disputes: Papers
emanating form the Sixth PCA International Law Seminar 08 November 2002, Kluwer Law International, The Hague/London/
NewYork, at xix.
42 Wolf, Aaron T. Development and Transboundary Waters: Obstacles and Opportunities: Report submitted to the World
Commission on Dams, July, 2000, at 30.

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conclusion
According to James Kraska:43
"The role of transboundary river agreements in promoting sustainable development extends beyond simple
economic and environmental factors. In South Asia, agreements have helped to strengthen political ties. The
agreements have value as vehicles to ameliorate tension and reduce the likelihood of war. Although freshwater
rivers, especially transnational ones, are frequently understood to contribute to international conflict, in South
Asia the process and results of concluding transboundary river agreements have had positive ripple effect on
the regional security environment."
Cooperation on transboundary water issues is also an important catalyst for regional cooperation.44
Competition for access to increasingly scarce water resources is one of the most significant and
frequent structural causes for crises. Only regional cooperation can solve many of these serious
water problems. Unresolved transboundary water issues can also block cooperation as a whole
between states. Water issues thus overshadow many political themes in connection with which a
regional cooperation would benefit all stakeholders. Solving international water conflicts means
making regional cooperation possible again. Joint cooperation around transboundary watercourses
essentially paves the way for regional cooperation in other domains of politics, economics,
environment and culture.
The real issue is not whether it may be desirable to support the negotiation and implementation
of transboundary water agreements but rather how best to strengthen development aid to better
facilitate the negotiation and implementation of transboundary water agreements that clearly
contribute to regional peace and security.
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43 Kraska at 492.
44 See documents by the German Federal Ministry for Economic Cooperation and Development (BMZ) e.g. "Water ­ Resolving Conflicts,
Shaping the Future", BMZ spezial Nr. 009/Jan. 2000.

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glossary
glOssary
Accommodation: a negotiation strategy in which one negotiator chooses to sacrifice some of his
or her interests and allows the other party to make desirable gains. Accommodation is often used
to preserve a relationship or to create the conditions for future exchanges that will compensate the
accommodator for his or her concession.
Active listening: a communication procedure in which a listener determines the emotional content
and intensity of a spoken message and feeds it back to the speaker for verification. Active listening
builds empathy, confirms understanding and enables the speaker to "work through" strong emotions.
Agenda: a list of discussion items or problem statements that are ordered in a sequence and framed
in a manner which facilitates efficient problem solving.
Agreementinprinciple: general levels of agreement that shape the broad parameters of a
negotiated settlement.
Arbitration: the intervention into a dispute of an independent, private and impartial third party who
is given the authority by the parties to make a decision on how the conflict will be settled. Arbitration
may be binding or non-binding.
Assessment: an evaluation of a conflict situation involving a review of the parties, interests, issues,
power, settlement options, etc.
Authority: responsibility for decision making that has been legally or legitimately delegated to an
individual or organization.
Avoidance: a negotiation strategy in which a negotiator pursues a strategy of no engagement in
conflict or competition in order to achieve a desirable end or to avoid reaching an unfavourable or
untimely settlement.
Bargaining: the process of making substantive, procedural or psychological trade-offs to reach an
acceptable settlement. Bargaining occurs in the context of broader negotiations.
Bargaining formula: a combination of agreements in principle that define the general parameters of
a negotiated settlement.
Bargaining range: a spectrum of possible settlement options, any one of which is preferable to a
stalemate or breakdown of negotiations.
BATNA: an acronym for best alternative to negotiated agreement. Negotiators usually compare
alternative settlement options and/or available dispute resolution procedures as a means of
determining whether a negotiated settlement is the preferred solution and/or process.
Bluff: a negotiation tactic in which one party misleads another as to his or her desired outcome,
power or willingness to take an action in an effort to gain an advantage that would not be possible
should his/her genuine concerns or power be known.
Bottom line (position): a settlement option that represents the minimal substantive, procedural or
psychological benefit that a party is willing to accept and still reach an agreement.
Building block procedure: a process for reaching a negotiated settlement in which a problem
is broken into sub-issues and an agreement is reached on each of these smaller "parts." The final
settlement is completed by assembling the "parts" into a comprehensive agreement.
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Business relationship: a pattern of interaction between two or more people which is characterized
by formality, limited levels of emotional disclosure, defined boundaries of the relationship and written
agreements.
Caucus: a private meeting held by members of a negotiating team or between a mediator and
negotiator(s) to determine strategies that will make joint session negotiations more productive. The
caucus can focus on substantive, procedural or psychological barriers to effective negotiations.
Coercion: negotiation tactics that limit the range of options available to parties by threatening or
inflicting a cost on another party for non-compliance.
Common interests: substantive, procedural or psychological needs that are held jointly by parties to
a negotiation.
Competition: a negotiation strategy in which one negotiator pursues the satisfaction of his or her
interests at the expense of the other party/parties. Competition often occurs when a party perceives
that resources are limited and that a positive outcome for these can only be achieved if the other party
receives less of the contested benefits.
Compromise: a negotiation strategy in which the parties agree to share jointly gains and losses.
Concern: a topic of importance to a party to a conflict.
Concession: a substantive, procedural, or psychological offer, made by one party to another, which
decreases the benefits requested by the offerer and rewards the other party.
Conciliation: the psychological preparation of parties by a negotiator or mediator to discuss
substantive issues. Conciliation involves improving communications, building positive perceptions
and promoting trust.
Conflict: an expressed competition between at least two inter-dependent parties who have perceived
or have actual incompatible goals or interests.
Conflict anticipation: a conflict management approach which identifies disputes at their early stages
of development, targets potential interest groups, educates them about issues and attempts to develop
cooperative responses to the future problem and thus avoid or lower the destructive effects of conflict.
Consensus: an agreement that is reached by identifying the interests of all concerned parties and
then building an integrative solution that maximizes satisfaction of as many of the interests as
possible. The process does not involve voting, but a synthesis and blending of solutions. Consensus
does not mean unanimity since it does not satisfy participants' interests equally, nor does each
participant support the agreement to the same degree. Consensus is considered to be the best
decision for all participants because it addresses, to some extent, all interests.
Contract: a formal legal document that outlines commitments, promises or exchanges that have
resulted from negotiations.
Deadline: time limit, either internally or externally imposed, on the duration of negotiations.
Deadlock: inability of parties to a negotiation to move forward to a settlement. A deadlock may
be caused by substantive, procedural or psychological barriers to agreement (synonyms: impasse,
stalemate).
Decision: an outcome.
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glossary
Dispute: a conflict in which the parties are unable or unwilling to resolve their problems or
disagreements in the context of their private relationship, and have moved the problem into the public
domain. Disputes often involve the presence of third parties, either observers, procedural facilitators
or independent decision-makers.
Doubt: uncertainty as to the outcome of an interaction, the validity of facts or the strength of a
particular party to a conflict.
Evaluation: an assessment of an option.
Exchange: items of value traded by parties in dispute.
Exclusive interests: a party's needs that are totally incompatible with the needs of another party.
External influences: pressures from outside the negotiation "table" (people, structure, time,
geography, etc.) that affect the dynamics of negotiators' interaction.
Facilitation: the use of a third party, who is impartial toward issues being discussed, to provide
procedural assistance to group participants to enhance information exchange or promote effective
decision making. The facilitator may or may not be a member of the group involved in the discussions.
Factfinding: a dispute resolution process in which an impartial third party collects information
about a dispute and makes either a report about relevant data or recommendations about how the
dispute might be resolved. Fact-finding is used to minimize data conflicts and to provide an impartial
assessment of the dispute to the parties or the public.
Fallback (position): a series of options for settlement that are between the secondary position and
bottom line position. Fallbacks are "yellow lights" for negotiators which indicate that it soon will be
time to stop making concessions.
Feedback meeting: meeting in which information is disseminated to participants.
Feedforward meeting: meeting in which information is elicited from participants.
Framing: the manner in which a conflict situation, issue or interest is conceptualized or defined.
Impasse: inability of parties to a negotiation to move forward toward a settlement (synonyms:
deadlock, stalemate).
Incremental concessions: sequential offers made by a negotiator that grant gradually increasing
benefits or rewards to another negotiator in return for agreement.
Incremental convergence: gradual narrowing of differences between parties.
Information exchange: a dispute resolution process in which parties in conflict meet to exchange
and clarify information. The goal of the meeting is to educate each other, answer questions, minimize
data conflicts and check out perceptions.
Initial high demand: a tactic for opening negotiations in which a party begins by asking for a high
concession from another negotiator in return for agreement. This tactic is used to educate another
party about the importance of an interest or issue, to allow room for later concessions, to try to gain as
many advantages as possible or to demonstrate toughness or strength of will.
Integrative decision/bargaining: a negotiation outcome or process that attempts to satisfy as many
interests or needs as possible for all negotiators (synonym: interest-based bargaining decision).
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glossary
Interest: a substantive, procedural or psychological need of a party to a conflict.
Interestbased bargaining: a negotiation process that attempts to satisfy as many interests or needs
as possible for all negotiators (synonym: integrative bargaining).
Intimate relationship: a pattern of interaction between two or more people which is characterized by
informality, high levels of emotional disclosure, broad spheres of interaction and verbal agreements.
Intimacy can be based on positive or negative emotional involvement.
Issue: topic or statement of a problem that results from perceived or actual incompatible interests.
Joint problemsolving session: cooperative and face-to-face interaction by parties to a dispute to
develop a mutually acceptable solution.
Mediation: the intervention into a dispute or negotiation of an acceptable, impartial and neutral third
party who has no decision-making authority, but who will assist contending parties to negotiate an
acceptable settlement of issues in dispute voluntarily.
Medarb: the intervention into a dispute or negotiation of an acceptable, impartial and neutral
third party to assist contending parties to negotiate an acceptable settlement of issues in dispute
voluntarily. If, however, the parties cannot reach an agreement, the third party has been granted the
authority by the parties to make a binding decision.
Memorandum of Understanding (MOU): informal written document that outlines areas of
agreement.
MiniTrial: a voluntary, expedited and non judicial procedure whereby top management for each
party meet to resolve disputes. The meeting is chaired by a private judge, and there are limits to
discovering and case presentation time. Legal standards are used as guidelines for procedure and
settlement. Parties meet after case presentation to attempt a negotiation settlement. If an impasse is
reached, the third party may make a non-binding recommendation.
Mixed interests: needs held by the parties that are not mutually exclusive, but are also not held in
common. Mixed interests imply the potential for shared gains or losses.
MLATNA: acronym for most likely alternative to negotiated agreement.
`Mutually acceptable' proposal: a proposal developed by a negotiator which is designed in such
a manner that it is easy for an opponent to agree to its terms. The proposal addresses the other's
interests and concerns, is presented in a way that enables the other to save face and is easy to
implement.
Negative bargaining range: a spectrum of proposed settlement options that are mutually exclusive
because no one option will satisfy adequately all parties' interests.
Negative intimacy: the destructive emotional attachment of antagonists to each other or the conflict
itself. The negative attachment of the parties to each other perpetuates the damaging relationship and
dispute.
Negotiation: a bargaining relationship between two or more parties who have a perceived or actual
conflict of interest. The participants join voluntarily in a temporary relationship to educate each other
about their needs and interests, exchange specific resources or resolve one or more intangible issues
such as the form their relationship will take in the future.
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Nonselfexecuting agreement: an agreement or exchange which cannot be completed immediately
and requires continued performance over time. For example, payments made over time.
Offer: a proposal for settlement that addresses the interests or concerns of the offerer and/or the
party to whom it is directed.
Opening position: a solution that represents the maximal demand of a party which is usually
presented early in negotiations.
Opening statement: a presentation made by a negotiator early in the dispute that presents how
he/she sees the conflict. An opening statement may present the history of the problem, why there is
a need for change (or maintaining status quo), issues to be addressed, interests to be satisfied and,
possibly, positions or proposed solutions.
Option: a substantive, procedural or psychological solution that may satisfy the interests of a party to
a dispute.
Package proposal: an offer for agreement that combines into one total proposal possible settlement
options to multiple issues in dispute. Although it may contain unacceptable components, the proposal
is offered as a "take it or leave it" totality.
Ploy: a tactic intended to frustrate, embarrass, mislead or weaken an opponent.
Position: specific solutions that a party adopts or proposes that meet his or her interests or needs.
Positional bargaining: a negotiation process in which a series of positions are presented as the
solution to the issue in question. Positions are generally presented sequentially so that the first
position is a large demand and subsequent positions request less of an opponent.
Positive bargaining range: a spectrum of settlement options, any one of which is more acceptable or
preferable to all parties than a stalemate or impasse.
Preempt: a tactic to forestall potential negative activity of another negotiator. A party anticipates
and takes action prior to the expected negative activity in such a manner that the negative behaviour
becomes irrelevant or impossible to perform.
Procedure: action steps, taken in a sequence, to achieve a desirable end.
Process: aggregate of procedural steps to achieve a desirable end. Process refers to the way something
is done, as opposed to what was done.
Proposal: a suggestion, either substantive or procedural, on how to proceed or what should be done.
Purity of conflict: the degree to which the interests of the parties to a dispute are mutually exclusive.
The more exclusive the interests, the "purer" the conflict.
Reframing: the process of changing how a person or a party to a conflict conceptualizes his, her or
another's attitudes, behaviours, issues, interests or how a situation is defined.
Reward: benefit to be given or received by a party in return for cooperation or reciprocal exchange of
another benefit.
Risk: a measure of the consequences of failure or success of a negotiation process.
Secondary position: concession made by a negotiator after the opening position that demands less
or offers more to an opposing negotiator.
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Selfexecuting agreement: an agreement or exchange that is carried out in its entirety at the time it
is accepted, or is formulated in such a way that the extent of the parties' adherence to its terms will be
self evident.
Settlement: an agreement.
Settlement conference: a meeting between disputing parties which is generally chaired by a judge
or lawyer. Parties attempt, with third party assistance, to negotiate a settlement. Third party often
provides substantive input regarding possible settlements. Third party is not authorized to make a
binding decision but may, if requested, make a non-binding recommendation.
Sidebar: private meetings between two principal spokespeople and a mediator.
Simultaneous exchanges: a tactic in which parties make offers at the same time so as to avoid loss of
position or face.
Spokesperson: individual authorized to speak for a team or interest group.
Stakeholder: a person or interest group which has an investment in the way that a dispute is
terminated, and in the possible distribution of gains and/or losses that may result from the
resolution process.
Stalemate: inability of parties to negotiation to move forward to a settlement
(synonym: impasse, deadlock).
Strategy: a conceptual plan that outlines the general approach or steps to be taken to attain a
desirable outcome.
Symbolic concession: an offer, in the form of a minor concession, that demonstrates a negotiator's
intent to bargain in good faith and/or attempt to meet some of the needs of another party.
Symbolic issue: an issue that is a substitute for, or representative of, a much broader or general issue
or interest. Symbolic issues tend to have greater psychological than substantive meaning.
Tactic: a behaviour initiated by a negotiator designed to implement or operationalize a strategy.
Threat: a statement of intent to do damage or harm to a party.
Timing: the orchestration of critical events or moves so that they occur at an optimal moment in the
negotiation, such as when negotiations begin and when offers are made.
Titfortat: a pattern of negotiation moves that reward or coerce an opponent in reciprocal fashion.
The negotiator offers back the same behaviour that was initially given.
WATNA: acronym for worst alternative to negotiated agreement.
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aPPenDIces
appendix a
united nations convention on the law of the non-navigational uses of
International watercourses
Adopted by the UN General Assembly in resolution 51/229 of 21 May 1997.
(See UN Press Release on the adoption of the Convention, URL: http://untreaty.un.org/ilc/texts/
instruments/english/conventions/8_3_1997.pdf)
(See Status of the Convention, URL: http://untreaty.un.org/ilc/texts/instruments/english/
conventions/8_3_1997.pdf)
The Parties to the present Convention,
Conscious of the importance of international watercourses and the non-navigational uses thereof in
many regions of the world,
Having in mind Article 13, paragraph 1 (a), of the Charter of the United Nations, which provides
that the General Assembly shall initiate studies and make recommendations for the purpose of
encouraging the progressive development of international law and its codification,
Considering that successful codification and progressive development of rules of international
law regarding non-navigational uses of international watercourses would assist in promoting and
implementing the purposes and principles set forth in Articles 1 and 2 of the Charter of the United
Nations,
Taking into account the problems affecting many international watercourses resulting from, among
other things, increasing demands and pollution,
Expressing the conviction that a framework convention will ensure the utilization, development,
conservation, management and protection of international watercourses and the promotion of the
optimal and sustainable utilization thereof for present and future generations
Affirming the importance of international cooperation and good neighbourliness in this field,
Aware of the special situation and needs of developing countries,
Recalling the principles and recommendations adopted by the United Nations Conference on
Environment and Development of 1992 in the Rio Declaration and Agenda 21,
Recalling also the existing bilateral and multilateral agreements regarding the non-navigational uses
of international watercourses,
Mindful of the valuable contribution of international organizations, both governmental and non-
governmental, to the codification and progressive development of international law in this field,
Appreciative of the work carried out by the International Law Commission on the law of the non-
navigational uses of international watercourses,
Bearing in mind United Nations General Assembly resolution 49/52 of 9 December 1994,
Have agreed as follows:
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PART I. INTRODUCTION
Article 1
Scope of the present Convention
1. The present Convention applies to uses of international watercourses and of their waters for
purposes other than navigation and to measures of protection, preservation and management related
to the uses of those watercourses and their waters.
2. The uses of international watercourses for navigation is not within the scope of the present
Convention except insofar as other uses affect navigation or are affected by navigation.
Article 2
Use of Terms
For the purposes of the present Convention:
(a) "Watercourse" means a system of surface waters and ground waters constituting by virtue of their
physical relationship a unitary whole and normally flowing into a common terminus;
(b) "International watercourse" means a watercourse, parts of which are situated in different States;
(c) "Watercourse State" means a State Party to the present Convention in whose territory part of an
international watercourse is situated, or a Party that is a regional economic integration organization, in
the territory of one or more of whose Member States part of an international watercourse is situated;
(d) "Regional economic integration organization" means an organization constituted by sovereign
States of a given region, to which its member States have transferred competence in respect of
matters governed by this Convention and which has been duly authorized in accordance with its
internal procedures, to sign, ratify, accept, approve or accede to it.
Article 3
Watercourse Agreements
1. In the absence of an agreement to the contrary, nothing in the present Convention shall affect the
rights or obligations of a watercourse State arising from agreements in force for it on the date on
which it became a party to the present Convention.
2. Notwithstanding the provisions of paragraph 1, parties to agreements referred to in paragraph 1
may, where necessary, consider harmonizing such agreements with the basic principles of the present
Convention.
3. Watercourse States may enter into one or more agreements, hereinafter referred to as "watercourse
agreements", which apply and adjust the provisions of the present Convention to the characteristics
and uses of a particular international watercourse or part thereof.
4. Where a watercourse agreement is concluded between two or more watercourse States, it shall
define the waters to which it applies. Such an agreement may be entered into with respect to an entire
international watercourse or any part thereof or a particular project programme or use except insofar
as the agreement adversely affects, to a significant extent, the use by one or more other watercourse
States of the waters of the watercourse, without their express consent.
5. Where a watercourse State considers that adjustment and application of the provisions of the
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present Convention is required because of the characteristics and uses of a particular international
watercourse, watercourse States shall consult with a view to negotiating in good faith for the purpose
of concluding a watercourse agreement or agreements.
6. Where some but not all watercourse States to a particular international watercourse are parties
to an agreement, nothing in such agreement shall affect the rights or obligations under the present
Convention of watercourse States that are not parties to such an agreement.
Article 4
Parties to Watercourse Agreements
1. Every watercourse State is entitled to participate in the negotiation of and to become a party to any
watercourse agreement that applies to the entire international watercourse, as well as to participate in
any relevant consultations.
2. A watercourse State whose use of an international watercourse may be affected to a significant
extent by the implementation of a proposed watercourse agreement that applies only to a part of the
watercourse or to a particular project, programme or use is entitled to participate in consultations on
such an agreement and, where appropriate, in the negotiation thereof in good faith with a view to
becoming a party thereto, to the extent that its use is thereby affected.
PART II. GENERAL PRINCIPLES
Article 5
Equitable and Reasonable Utilization and Participation
1. Watercourse States shall in their respective territories utilize an international watercourse in an
equitable and reasonable manner. In particular, an international watercourse shall be used and
developed by watercourse States with a view to attaining optimal and sustainable utilization thereof
and benefits therefrom, taking into account the interests of the watercourse States concerned,
consistent with adequate protection of the watercourse.
2. Watercourse States shall participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner. Such participation includes both the right to
utilize the watercourse and the duty to cooperate in the protection and development thereof, as
provided in the present Convention.
Article 6
Factors Relevant to Equitable and Reasonable Utilization
1. Utilization of an international watercourse in an equitable and reasonable manner within the
meaning of article 5 requires taking into account all relevant factors and circumstances, including:
(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;
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(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.
2. In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall,
when the need arises, enter into consultations in a spirit of cooperation.
3. The weight to be given to each factor is to be determined by its importance in comparison with that
of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are
to be considered together and a conclusion reached on the basis of the whole.
Article 7
Obligation Not to Cause Significant Harm
1. Watercourse States shall, in utilizing an international watercourse in their territories, take all
appropriate measures to prevent the causing of significant harm to other watercourse States.
2. Where significant harm nevertheless is caused to another watercourse State, the States whose
use causes such harm shall, in the absence of agreement to such use, take all appropriate measures,
having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to
eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.
Article 8
General Obligation to Cooperate
1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity,
mutual benefit and good faith in order to attain optimal utilization and adequate protection of an
international watercourse.
2. In determining the manner of such cooperation, watercourse States may consider the establishment
of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on
relevant measures and procedures in the light of experience gained through cooperation in existing
joint mechanisms and commissions in various regions.
Article 9
Regular Exchange of Data and Information
1. Pursuant to article 8, watercourse States shall on a regular basis exchange readily available data and
information on the condition of the watercourse, in particular that of a hydrological, meteorological,
hydrogeological and ecological nature and related to the water quality as well as related forecasts.
2. If a watercourse State is requested by another watercourse State to provide data or information that
is not readily available, it shall employ its best efforts to comply with the request but may condition
its compliance upon payment by the requesting State of the reasonable costs of collecting and, where
appropriate, processing such data or information.
3. Watercourse States shall employ their best efforts to collect and, where appropriate, to process data
and information in a manner which facilitates its utilization by the other watercourse States to which
it is communicated.
Article 10
Relationship Between Different Kinds of Uses
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1. In the absence of agreement or custom to the contrary, no use of an international watercourse
enjoys inherent priority over other uses.
2. In the event of a conflict between uses of an international watercourse, it shall be resolved with
reference to articles 5 to 7, with special regard being given to the requirements of vital human needs.
PART III. PLANNED MEASURES
Article 11
Information Concerning Planned Measures
Watercourse States shall exchange information and consult each other and, if necessary, negotiate on
the possible effects of planned measures on the condition of an international watercourse.
Article 12
Notification Concerning Planned Measures with Possible Adverse Effects
Before a watercourse State implements or permits the implementation of planned measures which
may have a significant adverse effect upon other watercourse States, it shall provide those States with
timely notification thereof. Such notification shall be accompanied by available technical data and
information, including the results of any environmental impact assessment, in order to enable the
notified States to evaluate the possible effects of the planned measures.
Article 13
Period for Reply to Notification
Unless otherwise agreed:
(a) A watercourse State providing a notification under article 12 shall allow
the notified States a period of six months within which to study and evaluate the possible effects of
the planned measures and to communicate the findings to it;
(b) This period shall, at the request of a notified State for which the evaluation of the planned
measures poses special difficulty, be extended for a period of six months.
Article 14
Obligations of the Notifying State During the Period for Reply
During the period referred to in article 13, the notifying State:
(a) Shall cooperate with the notified States by providing them, on request,
with any additional data and information that is available and necessary for an accurate evaluation;
and
(b) Shall not implement or permit the implementation of the planned measures without the consent
of the notified States.
Article 15
Reply to Notification
The notified States shall communicate their findings to the notifying State as early as possible within
the period applicable pursuant to article 13. If a notified State finds that implementation of the
planned measures would be inconsistent with the provisions of articles 5 or 7, it shall attach to its
finding a documented explanation setting forth the reasons for the finding.
Article 16
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Absence of Reply to Notification
1. If, within the period applicable pursuant to article 13, the notifying State receives no
communication under article 15, it may, subject to its obligations under articles 5 and 7, proceed with
the implementation of the planned measures, in accordance with the notification and any other data
and information provided to the notified States.
2. Any claim to compensation by a notified State which has failed to reply within the period applicable
pursuant to article 13 may be offset by the costs incurred by the notifying State for action undertaken
after the expiration of the time for a reply which would not have been undertaken if the notified State
had objected within that period.
Article 17
Consultations and Negotiations Concerning Planned Measures
1. If a communication is made under article 15 that implementation of the planned measures would
be inconsistent with the provisions of articles 5 or 7, the notifying State and the State making the
communication shall enter into consultations and, if necessary, negotiations with a view to arriving at
an equitable resolution of the situation.
2. The consultations and negotiations shall be conducted on the basis that each State must in good
faith pay reasonable regard to the rights and legitimate interests of the other State.
3. During the course of the consultations and negotiations, the notifying State shall, if so requested by
the notified State at the time it makes the communication, refrain from implementing or permitting
the implementation of the planned measures for a period of six months unless otherwise agreed.
Article 18
Procedures in the Absence of Notification
1. If a watercourse State has reasonable grounds to believe that another watercourse State is planning
measures that may have a significant adverse effect upon it, the former State may request the latter
to apply the provisions of article 12. The request shall be accompanied by a documented explanation
setting forth its grounds.
2. In the event that the State planning the measures nevertheless finds that it is not under an
obligation to provide a notification under article 12, it shall so inform the other State, providing a
documented explanation setting forth the reasons for such finding. If this finding does not satisfy the
other State, the two States shall, at the request of that other State, promptly enter into consultations
and negotiations in the manner indicated in paragraphs 1 and 2 of article 17.
3. During the course of the consultations and negotiations, the State planning the measures shall, if
so requested by the other State at the time it requests the initiation of consultations and negotiations,
refrain from implementing or permitting the implementation of those measures for a period of six
months unless otherwise agreed.
Article 19
Urgent Implementation of Planned Measures
1. In the event that the implementation of planned measures is of the utmost urgency in order
to protect public health, public safety or other equally important interests, the State planning the
measures may, subject to articles 5 and 7, immediately proceed to implementation, notwithstanding
the provisions of article 14 and paragraph 3 of article 17.
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2. In such case, a formal declaration of the urgency of the measures shall be communicated without
delay to the other watercourse States referred to in article 12 together with the relevant data and
information.
3. The State planning the measures shall, at the request of any of the States referred to in paragraph
2, promptly enter into consultations and negotiations with it in the manner indicated in paragraphs 1
and 2 of article 17.
PART IV. PROTECTION, PRESERVATION AND MANAGEMENT
Article 20
Protection and Preservation of Ecosystems
Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the
ecosystems of international watercourses.
Article 21
Prevention, Reduction and Control of Pollution
1. For the purpose of this article, "pollution of an international watercourse" means any detrimental
alteration in the composition or quality of the waters of an international watercourse which results
directly or indirectly from human conduct.
2. Watercourse States shall, individually and, where appropriate, jointly, prevent, reduce and control
the pollution of an international watercourse that may cause significant harm to other watercourse
States or to their environment, including harm to human health or safety, to the use of the waters
for any beneficial purpose or to the living resources of the watercourse. Watercourse States shall take
steps to harmonize their policies in this connection.
3. Watercourse States shall, at the request of any of them, consult with a view to arriving at mutually
agreeable measures and methods to prevent, reduce and control pollution of an international
watercourse, such as:
(a) Setting joint water quality objectives and criteria;
(b) Establishing techniques and practices to address pollution from point and non-point sources;
(c) Establishing lists of substances the introduction of which into the waters of an international
watercourse is to be prohibited, limited, investigated or monitored.
Article 22
Introduction of Alien or New Species
Watercourse States shall take all measures necessary to prevent the introduction of species, alien or
new, into an international watercourse which may have effects detrimental to the ecosystem of the
watercourse resulting in significant harm to other watercourse States.
Article 23
Protection and Preservation of the Marine Environment
Watercourse States shall, individually and, where appropriate, in cooperation with other States, take
all measures with respect to an international watercourse that are necessary to protect and preserve
the marine environment, including estuaries, taking into account generally accepted international
rules and standards.
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Article 24
Management
1. Watercourse States shall, at the request of any of them, enter into consultations concerning the
management of an international watercourse, which may include the establishment of a joint
management mechanism.
2. For the purposes of this article, "management" refers, in particular, to:
(a) Planning the sustainable development of an international watercourse and providing for the
implementation of any plans adopted; and
(b) Otherwise promoting the rational and optimal utilization, protection and control of the
watercourse.
Article 25
Regulation
1. Watercourse States shall cooperate, where appropriate, to respond to needs or opportunities for
regulation of the flow of the waters of an international watercourse.
2. Unless otherwise agreed, watercourse States shall participate on an equitable basis in the
construction and maintenance or defrayal of the costs of such regulation works as they may have
agreed to undertake.
3. For the purposes of this article, "regulation" means the use of hydraulic works or any other
continuing measure to alter, vary or otherwise control the flow of the waters of an international
watercourse.
Article 26
Installations
1. Watercourse States shall, within their respective territories, employ their best efforts to maintain
and protect installations, facilities and other works related to an international watercourse.
2. Watercourse States shall, at the request of any of them which has reasonable grounds to believe that
it may suffer significant adverse effects, enter into consultations with regard to:
(a) The safe operation and maintenance of installations, facilities or other
works related to an international watercourse; and
(b) The protection of installations, facilities or other works from willful or
negligent acts or the forces of nature.
PART V. HARMFUL CONDITIONS AND EMERGENCY SITUATIONS
Article 27
Prevention and mitigation of harmful conditions
Watercourse States shall, individually and, where appropriate, jointly, take all appropriate measures to
prevent or mitigate conditions related to an international watercourse that may be harmful to other
watercourse States, whether resulting from natural causes or human conduct, such as flood or ice
conditions, water-borne diseases, siltation, erosion, salt-water intrusion, drought or decertification.
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Article 28
Emergency situations
1. For the purposes of this article, "emergency" means a situation that causes, or poses an imminent
threat of causing, serious harm to watercourse States or other States and that results suddenly from
natural causes, such as floods, the breaking up of ice, landslides or earthquakes, or from human
conduct, such as industrial accidents.
2. A watercourse State shall, without delay and by the most expeditious means available, notify other
potentially affected States and competent international organizations of any emergency originating
within its territory.
3. A watercourse State within whose territory an emergency originates shall, in cooperation
with potentially affected States and, where appropriate, competent international organizations,
immediately take all practicable measures necessitated by the circumstances to prevent, mitigate and
eliminate harmful effects of the emergency.
4. When necessary, watercourse States shall jointly develop contingency plans for responding to
emergencies, in cooperation, where appropriate, with other potentially affected States and competent
international organizations.
PART VI. MISCELLANEOUS PROVISIONS
Article 29
International watercourses and installations in time of armed conflict
International watercourses and related installations, facilities and other works shall enjoy the
protection accorded by the principles and rules of international law applicable in international and
non-international armed conflict and shall not be used in violation of those principles and rules.
Article 30
Indirect Procedures
In cases where there are serious obstacles to direct contacts between watercourse States, the States
concerned shall fulfill their obligations of cooperation provided for in the present Convention,
including exchange of data and information, notification, communication, consultations and
negotiations, through any indirect procedure accepted by them.
Article 31
Data and Information Vital to National Defence or Security
Nothing in the present Convention obliges a watercourse State to provide data or information vital to
its national defence or security. Nevertheless, that State shall cooperate in good faith with the other
watercourse States with a view to providing as much information as possible under the circumstances.
Article 32
Non-discrimination
Unless the watercourse States concerned have agreed otherwise for the protection of the interests of
persons, natural or juridical, who have suffered or are under a serious threat of suffering significant
transboundary harm as a result of activities related to an international watercourse, a watercourse
State shall not discriminate on the basis of nationality or residence or place where the injury occurred,
in granting to such persons, in accordance with its legal system, access to judicial or other procedures,
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or a right to claim compensation or other relief in respect of significant harm caused by such activities
carried on in its territory.
Article 33
Settlement of disputes
1. In the event of a dispute between two or more Parties concerning the interpretation or application
of the present Convention, the Parties concerned shall, in the absence of an applicable agreement
between them, seek a settlement of the dispute by peaceful means in accordance with the following
provisions.
2. If the Parties concerned cannot reach agreement by negotiation requested by one of them, they may
jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as
appropriate, of any joint watercourse institutions that may have been established by them or agree to
submit the dispute to arbitration or to the International Court of Justice.
3. Subject to the operation of paragraph 10, if after six months from the time of the request for
negotiations referred to in paragraph 2, the Parties concerned have not been able to settle their
dispute through negotiation or any other means referred to in paragraph 2, the dispute shall be
submitted, at the request of any of the parties to the dispute, to impartial fact-finding in accordance
with paragraphs 4 to 9, unless the Parties otherwise agree.
4. 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.
5. If the members nominated by the Parties are unable to agree on a Chairman within three months of
the request for the establishment of the Commission, any Party concerned may request the Secretary-
General of the United Nations to appoint the Chairman who shall not have the nationality of any of
the parties to the dispute or of any riparian State of the watercourse concerned. If one of the Parties
fails to nominate a member within three months of the initial request pursuant to paragraph 3, any
other Party concerned may request the Secretary-General of the United Nations to appoint a person
who shall not have the nationality of any of the parties to the dispute or of any riparian State of the
watercourse concerned. The person so appointed shall constitute a single-member Commission.
6. The Commission shall determine its own procedure.
7. The Parties concerned have the obligation to provide the Commission with such information as it
may require and, on request, to permit the Commission to have access to their respective territory and
to inspect any facilities, plant, equipment, construction or natural feature relevant for the purpose of
its inquiry.
8. The Commission shall adopt its report by a majority vote, unless it is a single-member Commission,
and shall submit that report to the Parties concerned setting forth its findings and the reasons
therefore and such recommendations as it deems appropriate for an equitable solution of the dispute,
which the Parties concerned shall consider in good faith.
9. The expenses of the Commission shall be borne equally by the Parties concerned
10. When ratifying, accepting, approving or acceding to the present Convention, or at any time
thereafter, a Party which is not a regional economic integration organization may declare in a written
instrument submitted to the Depositary that, in respect of any dispute not resolved in accordance with
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paragraph 2, it recognizes as compulsory ipso facto and without special agreement in relation to any
Party accepting the same obligation:
(a) Submission of the dispute to the International Court of Justice; and/or
(b) Arbitration by an arbitral tribunal established and operating, `unless the parties to the dispute
otherwise agreed, in accordance with the procedure laid down in the annex to the present
Convention.
A Party which is a regional economic integration organization may make a declaration with like effect
in relation to arbitration in accordance with subparagraph (b).
PART VII. FINAL CLAUSES
Article 34
Signature
The present Convention shall be open for signature by all States and by regional economic integration
organizations from 21 May 1997 until 20 May 2000 at United Nations Headquarters in New York.
Article 35
Ratification, Acceptance, Approval or Accession
1. The present Convention is subject to ratification, acceptance, approval or accession by States and by
regional economic integration organizations. The instruments of ratification, acceptance, approval or
accession shall be deposited with the Secretary-General of the United Nations.
2. Any regional economic integration organization which becomes a Party to this Convention without
any of its member States being a Party shall be bound by all the obligations under the Convention.
In the case of such organizations, one or more of whose member States is a Party to this Convention,
the organization and its member States shall decide on their respective responsibilities for the
performance of their obligations under the Convention. In such cases, the organization and the
member States shall not be entitled to exercise rights under the Convention concurrently.
3. In their instruments of ratification, acceptance, approval or accession, the regional economic
integration organizations shall declare the extent of their competence with respect to the matters
governed by the Convention. These organizations shall also inform the Secretary-General of the
United Nations of any substantial modification in the extent of their competence.
Article 36
Entry into Force
1. The present Convention shall enter into force on the ninetieth day following the date of deposit
of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Secretary-
General of the United Nations.
2. For each State or regional economic integration organization that ratifies, accepts or approves
the Convention or accedes thereto after the deposit of the thirty-fifth instrument of ratification,
acceptance, approval or accession, the Convention shall enter into force on the ninetieth day after the
deposit by such State or regional economic integration organization of its instrument of ratification,
acceptance, approval or accession.
3. For the purposes of paragraphs 1 and 2, any instrument deposited by a regional economic
integration organization shall not be counted as additional those deposited by States.
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Article 37
Authentic Texts
The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United
Nations.

IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized thereto, have
signed this Convention.
DONE at New York, this ___________ day of one thousand nine hundred and ninety-seven.
ANNEX
ARBITRATION
Article 1
Unless the parties to the dispute otherwise agree, the arbitration pursuant to article 33 of the
Convention shall take place in accordance with articles 2 to 14 of the present annex.
Article 2
The claimant party shall notify the respondent party that it is referring a dispute to arbitration
pursuant to article 33 of the Convention. The notification shall state the subject matter of arbitration
and include, in particular, the articles of the Convention, the interpretation or application of which
are at issue. If the parties do not agree on the subject matter of the dispute, the arbitral tribunal shall
determine the subject matter.
Article 3
1. In disputes between two parties, the arbitral tribunal shall consist of three members. Each of the
parties to the dispute shall appoint an arbitrator and the two arbitrators so appointed shall designate
by common agreement the third arbitrator, who shall be the Chairman of the tribunal. The latter
shall not' be a national of one of the parties to the dispute or of any riparian State of the watercourse
concerned, nor have his or her usual place of residence in the territory of one of these parties or such
riparian State, nor have dealt with the case in any other capacity.
2. In disputes between more than two parties, parties in the same interest shall appoint one arbitrator
jointly by agreement.
3. Any vacancy shall be filled in the manner prescribed for the initial appointment.
Article 4
1. If the Chairman of the arbitral tribunal has not been designated within two months of the
appointment of the second arbitrator, the President of the International Court of Justice shall, at the
request of a party, designate the Chairman within a further two-month period.
2. If one of the parties to the dispute does not appoint an arbitrator within two months of receipt of
the request, the other party may inform the President of the International Court of Justice, who shall
make the designation within a further two-month period.
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Article 5
The arbitral tribunal shall render its decisions in accordance with the provisions of this Convention
and international law.
Article 6
Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own rules of
procedure.
Article 7
The arbitral tribunal may, at the request of one of the Parties, recommend essential interim measures
of protection.
Article 8
1. The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, using all
means at their disposal, shall:
(a) Provide it with all relevant documents, information and facilities; and
(b) Enable it, when necessary, to call witnesses or experts and receive their evidence.
2. The parties and the arbitrators are under an obligation to protect the confidentiality of any
information they receive in confidence during the proceedings of the arbitral tribunal.
Article 9
Unless the arbitral tribunal determines otherwise because of the particular circumstances of the case,
the costs of the tribunal shall be borne by the parties to the dispute in equal shares. The tribunal shall
keep a record of all its costs, and shall furnish a final statement thereof to the parties.
Article 10
Any Party that has an interest of a legal nature in the subject matter of the dispute which may be
affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal.
Article 11
The tribunal may hear and determine counterclaims arising directly out of the subject matter of the
dispute.
Article 12
Decisions both on procedure and substance of the arbitral tribunal shall be taken by a majority vote of
its members.
Article 13
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend
its case, the other party may request the tribunal to continue the proceedings and to make its
award. Absence of a party or a failure of a party to defend its case shall not constitute a bar to the
proceedings. Before rendering its final decision, the arbitral tribunal must satisfy itself that the claim is
well founded in fact and law.
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Article 14
1. The tribunal shall render its final decision within five months of the date on which it is fully
constituted unless it finds it necessary to extend the time limit for a period which should not exceed
five more months.
2. The final decision of the arbitral tribunal shall be confined to the subject matter of the dispute and
shall state the reasons on which it is based'. It shall contain the names of the members who have
participated and the date of the final decision. Any member of the tribunal may attach a separate or
dissenting opinion to the final decision.
3. The award shall be binding on the parties to the dispute. It shall be without appeal unless the
parties to the dispute have agreed in advance to an appellate procedure.
4. Any controversy which may arise between the parties to the dispute as regards the interpretation or
manner of implementation of the final decision may be submitted by either party for decision to the
arbitral tribunal which rendered it.
united nations general assembly
Press release
ga/9248
The General Assembly this morning adopted a Convention on the Law of the Non-Navigational
Uses of International Watercourses aimed at guiding States in negotiating agreements on specific
watercourses and invited States and regional economic integration organizations to become parties
to it. The Assembly took that action through its adoption, by 103 votes in favour to 3 against (Turkey,
China, Burundi) with 27 abstentions, of a resolution to which the text will be attached.
The 37-article Watercourses Convention and its 14-article annex governs the non-navigational
uses of international watercourses, as well as measures to protect, preserve and manage them.
Viewed as a framework Convention, it addresses such issues as flood control, water quality, erosion,
sedimentation, saltwater intrusion and living resources. According to the text, it is to be opened for
signature today and remain open until 20 May 2000.
A number of States who abstained or voted against the text drew attention to a lack of consensus on
several of its key provisions, such as those governing dispute settlement. A number of speakers said
there was a lack of balance in its provisions between the rights and obligations of the upstream and
downstream riparian States. Concern was also expressed that the Convention had deviated from the
aim of being a framework agreement.
(For details on the voting, see annex.)
Statements were made by the representatives of Japan, Mexico, the United Republic of Tanzania,
Turkey, Bolivia, Pakistan, Czech Republic, China, Slovakia, France, India, Ethiopia, Egypt, Israel, Spain
and Rwanda.
Assembly Work Programme
The General Assembly met this morning to consider a draft resolution by which it would adopt
the draft convention on the law of the non-navigational uses of international watercourses. It is
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Article 14
also to consider the appointment of members of the Joint Inspection Unit (JIU), confirmation of
1. The tribunal shall render its final decision within five months of the date on which it is fully
the appointment of the Administrator of the United Nations Development Programme (UNDP)
constituted unless it finds it necessary to extend the time limit for a period which should not exceed
and a letter from Bolivia expressing interest in becoming a member of the Special Committee on
five more months.
decolonization.
2. The final decision of the arbitral tribunal shall be confined to the subject matter of the dispute and
In addition, the Assembly is expected to consider a request that it reopen its agenda items on
shall state the reasons on which it is based'. It shall contain the names of the members who have
trade and development and on implementation of the decisions and recommendations of the
participated and the date of the final decision. Any member of the tribunal may attach a separate or
United Nations Conference on Environment and Development (UNCED). It is also to act on a
dissenting opinion to the final decision.
recommendation that it include on its agenda an item on cooperation between the United Nations
and the Organization for the Prohibition of Chemical Weapons.
3. The award shall be binding on the parties to the dispute. It shall be without appeal unless the
(For additional background information, see Press Release GA/9247 of 20 May.)
parties to the dispute have agreed in advance to an appellate procedure.
The Assembly has before it a 32-Power draft resolution (document A/51/L.72), by which it would
4. Any controversy which may arise between the parties to the dispute as regards the interpretation or
adopt a convention on the law on the non- navigational uses of international watercourses and ask
manner of implementation of the final decision may be submitted by either party for decision to the
the Secretary-General to open it for signature. It would also invite States and regional economic
arbitral tribunal which rendered it.
integration organizations to become parties to the convention. The text of the draft convention is
before the Assembly in a report of its Sixth Committee (Legal) (document A/51/869).
united nations general assembly
The 37-article draft framework convention and 14-article annex was elaborated by the Working Group
Press release
of the Sixth Committee at its second session, from 24 March to 4 April. It provides general principles
ga/9248
and rules to guide States in negotiating future agreements on specific watercourses. The six- part draft
convention consists of an introduction; general principles; planned measures; protection, preservation
The General Assembly this morning adopted a Convention on the Law of the Non-Navigational
and management; harmful conditions and emergency situations; miscellaneous provisions; and final
Uses of International Watercourses aimed at guiding States in negotiating agreements on specific
clauses on such matters as signature and entry into force.
watercourses and invited States and regional economic integration organizations to become parties
to it. The Assembly took that action through its adoption, by 103 votes in favour to 3 against (Turkey,
The draft framework convention governs the non-navigational uses of international watercourses,
China, Burundi) with 27 abstentions, of a resolution to which the text will be attached.
as well as measures to protect, preserve and manage them. It addresses such issues as flood control,
water quality, erosion, sedimentation, saltwater intrusion and living resources. It does not cover
The 37-article Watercourses Convention and its 14-article annex governs the non-navigational
navigational uses, except in so far as other uses affect navigation or are affected by it.
uses of international watercourses, as well as measures to protect, preserve and manage them.
Viewed as a framework Convention, it addresses such issues as flood control, water quality, erosion,
The draft resolution as sponsored by Antigua and Barbuda, Bangladesh, Bhutan, Brazil, Cambodia,
sedimentation, saltwater intrusion and living resources. According to the text, it is to be opened for
Canada, Chile, Denmark, Finland, Germany, Greece, Hungary, Italy, Japan, Lao People's Democratic
signature today and remain open until 20 May 2000.
Republic, Liechtenstein, Malaysia, Mexico, Nepal, Netherlands, Norway, Portugal, Republic of Korea,
Romania, Sudan, Sweden, Syria, Tunisia, United Kingdom, United States, Uruguay and Venezuela.
A number of States who abstained or voted against the text drew attention to a lack of consensus on
several of its key provisions, such as those governing dispute settlement. A number of speakers said
Convention on International Watercourses
there was a lack of balance in its provisions between the rights and obligations of the upstream and
YUKIO TAKASU (Japan) introduced the report of the Sixth Committee on the draft watercourses
downstream riparian States. Concern was also expressed that the Convention had deviated from the
convention. He said that following informal consultations, consensus had been reached to complete
aim of being a framework agreement.
draft article 34 to read as follows: "The present Convention shall be open for signature by all States
(For details on the voting, see annex.)
and by regional economic integration organizations from 21 May 1997 until 20 May 2000 at United
Statements were made by the representatives of Japan, Mexico, the United Republic of Tanzania,
Nations Headquarters in New York."
Turkey, Bolivia, Pakistan, Czech Republic, China, Slovakia, France, India, Ethiopia, Egypt, Israel, Spain
MANUEL TELLO (Mexico) introduced the draft resolution on the draft convention, announcing the
and Rwanda.
addition of Cameroon, Grenada, Honduras, Jordan, Latvia and Viet Nam as cosponsors.
DAUDI N. MWAKAWAGO (United Republic of Tanzania) said the draft resolution was of great
Assembly Work Programme
importance to his country. The draft convention could have been better; it was, to some extent,
the product of a deadline. Time constraints and a lack of consensus on certain key provisions had
The General Assembly met this morning to consider a draft resolution by which it would adopt
necessitated votes on provisions and the draft as a whole.
the draft convention on the law of the non-navigational uses of international watercourses. It is
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Draft article 6, on factors relevant to utilization, represented a suitable compromise in the face of
diverse interests. However, the delicate balance in the International Law Commission's draft of
articles 5, 6 and 7 had been undone by the introduction, in draft article 5, of reference to a demand
to take "into account the interests of the watercourse States concerned". That reference seemed to
expand the scope of the parameters established under draft articles 6 and 7, thus introducing an
element of uncertainty. His delegation opposed those changes. While it was appropriate that the draft
convention urged States to take all appropriate measures in "due regard" for its provisions yet, some
States' actions remained subject to the consent of others.
Basin-wide regulatory measures were a necessary step towards environmental protection, he
said. However, those measures did not address different capabilities of States for monitoring and
compliance. Without addressing such realities, the convention's strict provisions might in some cases
become a barrier for inter-State cooperation.
Addressing other elements of the draft, he said not just for a State to allow unhindered access to
those claiming injury as a result of a right arising under the Convention, while denying others to
seek redress to its judicial organs on matters other than those prescribed by the Convention. Such
an obligation failed to address constraints facing States in whose jurisdiction a cause of action was
considered strictly territorial. He said the draft convention preserved and authenticated existing
agreements on non-navigational uses of international watercourses. However, he wondered how
much law on the subject had been codified.
He noted that it was to enter into force following the deposit of 35 instruments of ratification or
accession. He said that represented a mere 18 per cent of the Organization's current membership of
185 States -- a figure that was even lower if regional economic integration organizations were taken
into account. His Government would vote against the draft resolution.
HUSEYIN E. CELEM (Turkey) said that his delegation had requested a vote on the draft convention
and would be voting against it. The text should have been annexed to the draft, as per established
procedure. In meetings with the working group, votes had been taken on draft articles 3, 5, 6, 7 and
33, but the results of those ballots had not been reflected in the Sixth Committee's report.
He said Turkey could not accept the draft convention because of objections to its preamble, as well as
draft articles 2(a) and (b), 3, 5, 7, 10 and part III, with the exception of draft articles 11, 22, 23, 32 and
33. As a framework convention, the text should have set forth general principles. Instead, the draft
went beyond the scope of a framework and established a mechanism for planned measures. Such
a practice had no basis in international law. The mechanism created an obvious inequality between
States. It was not appropriate for a framework convention to foresee any compulsory rules regarding
the settlement of disputes, a matter which should be left to the discretion of States concerned.
Further, the draft did not refer to the sovereignty of the watercourse States over the parts of
international watercourses located in their territory, he went on to say. The draft convention should
have established the primacy of the principle of equitable reasonable utilization over the obligation
not to cause significant harm. His country would not sign the draft convention, which would have no
legal effect in Turkey.
EDGAR CAMACHO OMISTE (Bolivia) said the International Law Commission's draft had reflected
States' interests in a balanced fashion. The present text lacked that balance. Bolivia had reservations
regarding draft articles 5, 6 and 7, as well as about the text as a whole. He would abstain in the voting.
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AHMAD KAMAL (Pakistan) said he had participated in the work on the draft convention. However,
despite the Working Group's efforts, not all concerns had been adequately reflected. Pakistan had
reservations regarding draft articles 2, 7 and 23. In draft article 2, there were difficulties in using the
term "ground waters". While the flow of a river could be measured in precise terms at various gauging
sites, it was not possible to do so with ground waters, which flowed slowly through porous soil.
Different laws applied to the flow of rivers and ground-waters.
With respect to draft article 7, he said its use of the term "significant" before "harm" was problematic
in that "significant" could be subject to different definitions. He favoured obligatory and binding
settlement procedures. Pakistan had reservations regarding draft article 33 on dispute settlements
because the mechanism provided therein was not binding.
MARTIN SMEJKAL (Czech Republic) said he would vote in favour of the text as a whole. That vote
would reflect his Government's firm attachment to the codification of international law rather than
a strong conviction that the text was fully balanced. His delegation's position regarding draft articles
3, 5 and 7 was reflected in its concluding statement to the Working Group, where it had abstained
during the vote owing to serious misgivings about the drafts' preamble. In draft article 5, the term
"sustainable utilization" was not appropriate. Draft article 3 lacked clarity with respect to the relation
between existing agreements and the draft convention.
GAO FENG (China) said there were obvious drawbacks in the draft convention. First, it failed to
reflect general agreement among all countries, and a number of States had major reservations
regarding its main provisions. Secondly, the text did not reflect the principle of the territorial
sovereignty of a watercourse State. Such a State had indisputable sovereignty over a watercourse
which flowed through its territory. There was also an imbalance between the rights and obligations of
the upstream and downstream States.
He said China could not support provisions on the mandatory settlement of disputes which went
against the principles set out in the United Nations Charter. His Government favoured the settlement
of all disputes through peaceful negotiations. Accordingly, he would vote against the draft resolution
to which the draft convention was attached.
JAN VARSO (Slovakia) said that during the Working Group's session, Slovakia has abstained in a
vote on the draft convention because its articles 5, 6 and 7 should have better reflected the objective
of ensuring the reasonable and equitable use of international watercourses by downstream and
upstream States. Nevertheless, his country supported the Organization's efforts to codify international
law and to implement Charter principles. Since the current text contained a framework designed to
promote equitable and reasonable cooperation among downstream and upstream States, and with
the hope that its application would contribute to the progressive development of international law,
Slovakia would vote in favour of it.
The draft resolution was adopted by a recorded vote of 103 in favour to 3 against (Burundi, China and
Turkey) with 27 abstentions. (For details of vote, see annex.)
HUBERT LEGAL (France) said his delegation had abstained in the voting. A small group had insisted
on its position. As such, the text did not meet the objectives it had set out to achieve. The Chairman
of the Working Group had decided to reduce the time for negotiations in order to have a text ready in
a few days. Only 42 countries in the Working Group had voted in favour of the text, while a third of
the Member States who had participated in the negotiations voted against it or abstained. France had
tried to promote serious negotiations with a view to reaching consensus on a balanced text, but its
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offer of compromise had not been heeded.
The haste in negotiations had created serious procedural discrepancies which affected the credibility
of resulting text, he said. The Chairman of the Working Group had denied delegates the right to
explain their vote before the text was approved. That practice represented a serious hindrance to the
codification of international law and could not be justified. The Convention was clearly imbalanced
with respect to the upstream and downstream States. It also had legal ambiguities. France considered
the result of the negotiations to have been a relative failure.
PRAKASH SHAH (India) expressed regret that the Convention had not been adopted by consensus.
While a framework convention should provide general principles, the present Convention had
deviated from that approach. Specifically, he had reservations regarding its articles 3, 5, 32, and 33.
Article 3 had not adequately reflected a State's autonomy to conclude agreements without being
fettered by the Convention. Article 5 had not been drafted clearly and would be difficult to implement.
The Convention had superimposed the principle of "sustainable utilization" over the principle of
utilization without appropriately defining the term "sustainable". India had abstained in the voting on
draft articles 5, 6 and 7 in the working group.
Article 32 presupposed regional integration and hence did not merit inclusion, he went on to say.
Article 33, on dispute settlement, contained an element of compulsion. Any procedure for peaceful
settlement of disputes should leave the procedure to the parties. Any mandatory third-party dispute
procedure was inappropriate and should not be included in a framework convention. He had voted
against the provision in the working group and would have voted against had the article been put to a
separate vote today. His country had therefore abstained in the voting.
BERHANEMESKEL NEGA (Ethiopia) said his delegation had abstained in the voting because the
text of the Convention was not balanced, particularly with respect to safeguarding the interests of
upper riparian States. Article 7 and Part III of the Convention were of particular concern. Part III put
an onerous burden on upper riparian States. Despite considerable opposition to that section in the
Working Group, there had been no serious effort to accommodate the interests of upper riparian
States.
He said the element in article 3 on adjusting application of the Convention's provisions to the
characteristics of a particular watercourse could undermine the Convention. Specific watercourse
arrangements should be adjusted to the Convention, not the other way around.
The Convention was tilted towards lower riparian States, he said. However, while, reserving the right
to use the water of its international watercourses, Ethiopia had not voted against the Convention
but had abstained. It had done so in the hopes that the Convention might encourage negotiations to
ensure equitable utilization and promote cooperation.
LAMIA A. MEKHEMAR (Egypt) expressed the hope that its adoption of the Convention would
enhance the Assembly's role in codifying and developing international law, with the aim of promoting
international peace and security and upholding the rule of law. While the Convention contained some
new regulations, they did not modify customary international law. The Convention did not prejudice
the legal weight of international law; its framework should not affect bilateral or regional agreements
or established laws.
She said the framework nature of the Convention had made it possible to provide a set of principles
and articles on the use of waters. Its application should be subject to the full agreement and consent
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of all parties sharing those watercourses. The special nature of each application, as well as existing
agreements and customary uses, should be taken into account. The convention should provide a basis
for improved cooperation, in the spirit of full and mutual respect.
LEEORA KIDRON (Israel) said her delegation had abstained in the voting. With respect to Article
3, she did not believe the Convention could affect existing agreements. States had full freedom
in negotiating and entering into new agreements, provided those agreements did not adversely
affect other States. Her Government supported the compromise reached on Articles 5, 6 and 7.
Nevertheless, it would have a more explicit balance between the principle of no harm and the
principle of reasonable and equitable utilization. Neither principle should be subservient to the other.
The balance between them should be based on the specific case.
With respect to the Article 10 reference to "vital human needs", she said the adequate supply of
drinking water should be of greater primacy. Her Government also had problems with Article 33,
on the settlement of disputes. As a matter of principle, States must settle their disputes peacefully.
However, the means of settling a dispute must be left to their agreement. Parties to a dispute must
be allowed to choose the mechanism which was most appropriate to their specific needs and
circumstances.
JORGE SANCHEZ (Spain) said his country had abstained in the voting. Article 7, on the obligation
not to cause harm, was one of the most important elements of the Convention. However, that
obligation could not be separated from principles of equitable and useful utilization spelled out in
Articles 5 and 6. The reference in Article 7 to Articles 5 and 6 has not explicit enough.
VENUSTE HABIYAREMYE (Rwanda) said he had abstained in the voting. The Convention lacked any
reference to the sacrosanct principle of State sovereignty. His Government also had problems with
Article 33, on the settlement of disputes, as well as with provisions in Article 2, on the management of
underground waters. The Convention was a flawed agreement.
General Assembly Plenary - 10 - Press Release GA/9248 99th Meeting (AM) 21 May 1997
General Assembly Plenary Press Release GA/9248 99th Meeting (AM) 21 May 1997
annex
vote on International watercourses convention
The Assembly adopted the draft resolution on a Convention on the Law on Non-Navigational Uses
of International Watercourses (document A/51/L.72) by a recorded vote of 103 in favour to 3 against,
with 27 abstentions, as follows:
In favour: Albania, Algeria, Angola, Antigua and Barbuda, Armenia, Australia, Austria, Bahrain,
Bangladesh, Belarus, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Cambodia, Cameroon,
Canada, Chile, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Estonia,
Federated States of Micronesia, Finland, Gabon, Georgia, Germany, Greece, Guyana, Haiti, Honduras,
Hungary, Iceland, Indonesia, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakstan, Kenya, Kuwait, Lao
Peoples Democratic Republic, Latvia, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg,
Madagascar, Malawi, Malaysia, Maldives, Malta, Marshall Islands, Mauritius, Mexico, Morocco,
Mozambique, Namibia, Nepal, Netherlands, New Zealand, Norway, Oman, Papua New Guinea,
Philippines, Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Samoa, San
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Marino, Saudi Arabia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Sudan, Suriname,
Sweden, Syria, Thailand, Trinidad and Tobago, Tunisia, Ukraine, United Arab Emirates, United
Kingdom, United States, Uruguay, Venezuela, Viet Nam, Yemen, Zambia.
Against: Burundi, China, Turkey.
Abstaining: Andorra, Argentina, Azerbaijan, Belgium, Bolivia, Bulgaria, Colombia, Cuba, Ecuador,
Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Monaco, Mongolia, Pakistan, Panama,
Paraguay, Peru, Rwanda, Spain, United Republic of Tanzania, Uzbekistan.
Absent: Afghanistan, Bahamas, Barbados, Belize, Benin, Bhutan, Cape Verde, Comoros, Democratic
People's Republic of Korea, Dominican Republic, El Salvador, Eritrea, Fiji, Guinea, Lebanon,
Mauritania, Myanmar, Niger, Nigeria, Palau, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Senegal, Solomon Islands, Sri Lanka, Swaziland, Tajikistan, The former Yugoslav Republic
of Macedonia, Turkmenistan, Uganda, Zaire, Zimbabwe.
status of the watercourse convention
as of 4 October 2005
Article 36(1) of the Convention provides that "The present Convention shall enter into force on the
ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance,
approval or accession with the Secretary-General of the United Nations."
The Convention was open for signature from 21 May 1997 until 21 May 2000. States, however, may
continue to ratify, accept, approve or accede to the Convention indefinitely.
ParTIcIPanT
sIgnaTure
raTIfIcaTIOn
accePTance
accessIOn
aPPrOval

(S)
(R)
(A)
(a)
(AA)
Côte d'Ivoire
25 Sep 1998




Finland
31 Oct 1997

23 Jan 1998


Germany
13 Aug 1998




Hungary
20 Jul 1999



26 Jan 2000
Iraq



9 July 2001

Jordan
17 Apr 199
22 Jun 1999



Lebanon



25 May 1999

Libyan Arab Jamahiriya



14 June 2005

Luxembourg
14 Oct 1997




Namibia
19 May 2000
29 Aug 2001



Netherlands
9 Mar 2000

9 Jan 2001


Norway
30 Sep 1998
30 Sep 1998



Paraguay
25 Aug 1998




Portugal
11 Nov 1997




Qatar



28 Feb 2002

South Africa
13 Aug 1997
26 Oct 1998



Sweden



15 Jun 2000

Syrian Arab Republic
11 Aug 1997
2 Apr 1998



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Tunisia
19 May 2000




Venezuela (Bolivarian
22 Sep 1997




Republic of)
Yemen
17 May 2000




DECLARATIONS AND RESERVATIONS (Unless otherwise indicated, the declarations and
reservations were made upon ratification, acceptance, approval or accession.)
Hungary - Declaration:
"The Government of the Republic of Hungary declares itself bound by either of the two means for the
settlement of disputes (International Court of Justice, arbitration), reserving its right to agree on the
competent body of jurisdiction, as the case may be."
Syrian Arab Republic - Reservation:
The acceptance by the Syrian Arab Republic of this Convention and its ratification by the Government
shall not under any circumstances be taken to imply recognition of Israel and shall not lead to its
entering into relations therewith that are governed by its provisions.
OBJECTIONS (Unless otherwise indicated, the objections were made upon ratification, acceptance
approval or accession.)
Israel - 15 July 1998
In regard to the reservation made by the Syrian Arab Republic upon ratification:
"In view of the Government of the State of Israel such reservation, which is explicitly of a political
nature, is incompatible with the purposes and objectives of this Convention and cannot in any way
affect whatever obligations are binding upon the Syrian Arab Republic under general international
treaty law or under particular conventions. The Government of the State of Israel will, in so far as
concerns the substance of the matter, adopt towards the Syrian Arab Republic an attitude of complete
reciprocity."
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appendix b
world bank Operational Manual, Projects on International waterways
Projects on International waterways
applicability of Policy
This policy applies to the following types of international waterways:
(a) any river, canal, lake, or similar body of water that forms a boundary between, or any river or body
of surface water that flows through, two or more states, whether Bank1 members or not;
(b) any tributary or other body of surface water that is a component of any waterway described in (a)
above; and
(c) any bay, gulf, strait, or channel bounded by two or more states or, if within one state, recognized as
a necessary channel of communication between the open sea and other states--and any river flowing
into such waters.
2. This policy applies to the following types of projects:
(a) hydroelectric, irrigation, flood control, navigation, drainage, water and sewerage, industrial, and
similar projects that involve the use or potential pollution of international waterways as described in
para. 1 above; and
(b) detailed design and engineering studies of projects under para. 2(a) above, including those to be
carried out by the Bank as executing agency or in any other capacity.
agreements/arrangements
3. Projects on international waterways may affect relations between the Bank and its borrowers and
between states (whether members of the Bank or not). The Bank recognizes that the cooperation
and goodwill of riparians is essential for the efficient use and protection of the waterway. Therefore,
it attaches great importance to riparians' making appropriate agreements or arrangements for these
purposes for the entire waterway or any part thereof. The Bank stands ready to assist riparians in
achieving this end. In cases where differences remain unresolved between the state proposing the
project (beneficiary state) and the other riparians, prior to financing the project the Bank normally
urges the beneficiary state to offer to negotiate in good faith with the other riparians to reach
appropriate agreements or arrangements.
notification
4. The Bank ensures that the international aspects of a project on an international waterway are
dealt with at the earliest possible opportunity. If such a project is proposed, the Bank requires the
beneficiary state, if it has not already done so, formally to notify the other riparians of the pro-posed
project and its Project Details (see BP 7.50, para. 3, URL: http://wbln0018.worldbank.org/Institutional/
Manuals/OpManual.nsf/BProw/47D35C1186367F338525672C007D07AE?OpenDocument). If
the prospective borrower indicates to the Bank that it does not wish to give notification, normally
the Bank itself does so. If the borrower also objects to the Bank's doing so, the Bank discontinues
processing of the project. The executive directors concerned are informed of these developments and
any further steps taken.
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5. The Bank ascertains whether the riparians have entered into agreements or arrangements or
have established any institutional framework for the international waterway concerned. In the latter
case, the Bank ascertains the scope of the institution's activities and functions and the status of its
involvement in the proposed project, bearing in mind the possible need for notifying the institution.
6. Following notification, if the other riparians raise objections to the proposed project, the Bank in
appropriate cases may appoint one or more independent experts to examine the issues in accordance
with BP 7.50, paras. 8-12, URL: http://wbln0018.worldbank.org/Institutional/Manuals/OpManual.
nsf/BProw/47D35C1186367F338525672C007D07AE?OpenDocument). Should the Bank decide to
proceed with the project despite the objections of the other riparians, the Bank informs them of its
decision.
exceptions to notification requirement
7. The following exceptions are allowed to the Bank's requirement that the other riparian states be
notified of the proposed project:
(a) For any ongoing schemes, projects involving additions or alterations that require rehabilitation,
construction, or other changes that in the judgment of the Bank
(i) will not adversely change the quality or quantity of water flows to the other riparians; and
(ii) will not be adversely affected by the other riparians' possible water use.
This exception applies only to minor additions or alterations to the ongoing scheme; it does not cover
works and activities that would exceed the original scheme, change its nature, or so alter or expand
its scope and extent as to make it appear a new or different scheme. In case of doubt regarding the
extent to which a project meets the criteria of this exception, the executive directors representing the
riparians concerned are informed and given at least two months to reply. Even if projects meet the
criteria of this exception, the Bank tries to secure compliance with the requirements of any agreement
or arrangement between the riparians.
(b) Water resource surveys and feasibility studies on or involving international waterways. However,
the state proposing such activities includes in the terms of reference for the activities an examination
of any potential riparian issues.
(c) Any project that relates to a tributary of an international waterway where the tributary runs
exclusively in one state and the state is the lowest downstream riparian, unless there is concern that
the project could cause appreciable harm to other states.
Presentation of Loans to the Executive Directors
8. The Project Appraisal Document (PAD) for a project on an international waterway deals with the
international aspects of the project, and states that Bank staff have considered these aspects and are
satisfied that
(a) the issues involved are covered by an appropriate agreement or arrangement between the
beneficiary state and the other riparians; or
(b) the other riparians have given a positive response to the beneficiary state or Bank, in the form
of consent, no objection, support to the project, or confirmation that the project will not harm their
interests; or
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(c) in all other cases, in the assessment of Bank staff, the project will not cause appreciable harm to
the other riparians, and will not be appreciably harmed by the other riparians' possible water use. The
PAD also contains in an annex the salient features of any objection and, where applicable, the report
and conclusions of the independent experts.

________________________________________________________________
1. "Bank" includes IDA; "loans" include credits; and "project" includes all projects financed under Bank
loans or IDA credits, but does not include adjustment programs supported under Bank loans and
credits; and "borrower" refers to the member country in whose territory the project is carried out,
whether or not the country is the borrower or the guarantor.

Note: OP and BP 7.50 replace OP and BP 7.50, dated October 1994. Questions may be
addressed to the Chief Counsel, Environmentally and Socially Sustainable Development and
International Law.
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THe caMPIOne cOnsOlIDaTIOn Of THe Ila rules
On
InTernaTIOnal waTer resOurces
1966-1998*
cHaPTer I
general
article 1
The general rules of international law as set forth in these Chapters apply to the use of the waters of
an interna¬tional drainage basin except as may be provided otherwise by convention, agreement, or
binding custom among the basin States.
article 2
1. An international drainage basin is a geographical area extending over two or more States
determined by the watershed limits of the system of waters, including surface and ground
waters flowing into a common terminus.
2. The waters of an aquifer that is intersected by the boundary between two or more States are
international ground waters and such an aquifer with its waters forms an international basin
or part thereof. Those States are basin States whether or not the aquifer and its waters form
with surface waters part of a hydraulic system flowing into a common terminus.
3. As used in these Rules,
"aquifer" means all underground strata capable of yielding water on a practicable basis,
including fissured or fractured rock formations and the structures containing deep, so-called
"fossil waters";
"basin State" means a State the territory of which includes a portion of an international
drainage basin.
cHaPTer II
general PrIncIPles
article 3
Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial
uses of the waters of an international drainage basin.
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article 4
1. What is a reasonable and equitable share within the meaning of Article 3 is to be determined
in the light of all the relevant factors in each particular case.
2. Relevant factors which are to be considered include, but are not limited to:
a) the geography of the drainage basin, including in particular the extent of the drainage
area in the territory of each basin State;
b) the hydrology of the basin, including in particular the contribution of water by each basin
State;
c) the interdependence of the underground waters and other waters, including any
interconnections between aquifers, and any leaching into aquifers caused by activities in
areas under the jurisdiction of basin States;
d) the climate affecting the basin;
e) the population dependent on the waters of the basin in each basin State;
f) the economic and social needs of each basin State;
g) the past utilization of the waters of the basin, including in particular existing utilization;
h) the comparative costs of alternative means of satisfying the economic and social needs of
each basin State;
i) the availability of other resources;
j) the avoidance of unnecessary waste in the utilization of waters of the basin;
k) the practicability of compensation to one or more of the co-basin States as a means of
adjusting conflicts among uses; and
l) the degree to which the needs of a basin State may be satisfied, without causing
substantial injury to a co-basin State.
3. The weight to be given to each factor is to be determined by its importance in comparison
with that of other relevant factors. In determining what is a reasonable and equitable share,
all relevant factors are to be considered together and a conclu¬sion reached on the basis of the
whole.
article 5
A use or category of uses is not entitled to any inherent preference over any other use
or category of uses.
article 6
A basin State may not be denied the present reasonable use of the waters of an
international drainage basin to reserve for another State a future use of such waters.
article 7
1. An existing reasonable use of water may continue in operation unless the factors justifying its
continuance are outweighed by other factors leading to the conclusion that it be modified or
terminated so as to accommodate a competing incompatible use.
2. (a) A use that is in fact operational is deemed to have been an existing use from the time of
the initiation of construction directly related to the use or, where such construction is not
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required, the undertaking of comparable acts of actual implementation.
(b) Such a use continues to be an existing use until such time as it is discontinued
with the intention that it be abandoned.
3. A use will not be deemed an existing use if at the time of becoming operational it is
incompatible with an already existing reasonable use.
article 8
A basin State shall refrain from and prevent acts or omis¬sions within its territory
that will cause substantial injury to another basin State, provided that the application
of the principle of equitable utilization as set forth in the above Articles does not
justify an exception in a particular case.
article 9
In the case of a breach of a State's international obligations relating to the waters of
an international drainage basin, the State shall cease the wrongful conduct and shall
pay compensation for the damage resulting therefrom.
article 10
Consistent with the principle of equitable utilization, States shall, individually
and, where appropriate, in cooperation with other basin States, take all reasonable
measures to ensure stream flows adequate to protect the biological, chemical, and
physical integrity of international watercourses, including their estuarine zones.
article 11
Basin States shall cooperate in a spirit of good faith and good neighborliness in
matters relating to the waters of the basin.
article 12
The rights and obligations of States under the Chapters below are subject to the
principle of equitable utilization set forth in the above Articles.
cHaPTer III
POlluTIOn
article 13
As used in this chapter:
"pollution" includes both continental sea-water pollution and water pollution;
"water pollution" means any detrimental change resulting from human conduct
in the natural composition, content, or quality of the waters of an international
drainage basin;
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"continental seawater pollution" means any detrimental change in the natural
composition, content or quality of sea water resulting from human conduct taking
place within the limits of the national jurisdiction of a State, including inter alia the
discharge or introduction of substances directly into the sea from pipelines, extended
outlets, or ships, or indirectly through rivers or other watercourses whether natural or
artificial, or through atmospheric fall-out;
"damage" includes inter alia:
a) loss of life or personal injury
b) loss of or injury to property; and
c) the costs of reasonable measures to prevent or minimize such loss of injury;
"damage to the environment" means:
a) harm to the environment of an international drainage basin, the costs of reasonable
measures to prevent or minimize this harm, and any other loss or damage caused by
these measures; and
b) the costs of reasonable measures of reinstatement or restoration of the environment of
the drainage basin actually undertaken or to be undertaken; and
"person" means any natural or juridical person.
article 14
1. Consistent with applicable international rules and standards, States in using the waters of
an international drainage basin shall, insofar as technically and economically feasible, ensure
that:
a) waste, pollutants, and hazardous substances are handled, treated, and disposed of in the
manner that produces the least transboundary environmental harm;
b) the development and use of water resources within their jurisdiction do not cause
substantial damage to the environment of other States or of areas beyond the limits of
national jurisdiction;
c) the management of their natural resources (other than water) and other environmental
elements located within their own boundaries does not cause substantial damage to the
natural condition of the waters of other States;
d) activities within their territory do not create any new form of water pollution or any
increase in the degree of existing water pollution in an in¬ternational drainage basin
that would cause substantial damage in the territory of another basin State or to any of
its rights under international law, or to the marine environment, special attention being
given to the long-term effects of the pollution of ground waters;
e) all reasonable measures are taken to abate existing water pollution in an international
drainage basin to such an extent that no substantial damage of the kind described in
paragraph d) is caused; and
f) further steps are taken to reduce any water pollution to the lowest level that is practicable
and reasonable under the circumstances.
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2. The provisions of this Article apply to pollution originating within or outside the territory of a
State, if it is caused by that State's conduct.
article 15
Notwithstanding the provisions of Articles 11 and 14 above, States shall not
discharge or permit the discharge of substances generally considered to be highly
dangerous into the waters of an interna¬tional drainage basin.
article 16
States should establish, as soon as possible, international standards for the control of
continental sea-water pollution, having regard to all relevant factors, including the
following:
a) the geography and hydrography of the area (inland waters, territorial sea, contiguous
zone, and continental shelf);
b) climatological conditions;
c) quality and composition of affected sea waters;
d) the conservation of the maritime environment (flora and fauna);
e) the resources of the sea-bed and the subsoil and their economic value for present and
potential users;
f) the recreational facilities of the coastal area;
g) the past, present and future utilization of the coastal area and sea water;
h) the economic and social needs of the coastal States in¬volved;
i) the existence of alternative means for waste disposal;
j) the adaptation of detrimental changes to beneficial human uses; and
k) the avoidance of unnecessary waste-disposal.
article 17
1. In order to ensure an effective system of prevention and abatement of water pollution
of an international drainage basin, basin states should set up appropriate international
administrative machinery for the entire basin. In any event, they should:
a) coordinate or pool their scientific and technical research programs to combat water
pollution;
b) establish harmonized, coordinated,. or unified networks for permanent observation and
pollution control; and
c) establish joint water quality objectives and standards for the whole or part of the basin.
2. Basin States should consider establishing joint or parallel quality standards and environmental
protection measures applicable to their international ground waters and aquifers in the basin
for the purpose of preserving them from degradation and of protecting the geologic structure
of the aquifers, including recharge areas, from impairment.
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cHaPTer Iv
navIgaTIOn
article 18
1. This Chapter refers to those rivers and lakes portions of which are both navigable and
separate or traverse the territories of two or more States.
2. Rivers or lakes are "navigable" if in their natural or canalized state they are currently used for
commercial naviga¬tion or are capable by reason of their natural condition of being so used.
3. In this Chapter, the term "riparian State" refers to a State through or along which the navigable
portion of a river flows or a lake lies.
article 19
Subject to any limitations or qualifications referred to in these Rules, each riparian
State is entitled to enjoy rights of free navigation on the entire course of a river
or lake.
article 20
"free navigation" used in this Chapter, includes the following freedoms for vessels
of a riparian State on a basis of equality:
a) freedom of movement on the entire navigable course of the river or lake;
b) freedom to enter ports and to make use of plants and docks; and
c) freedom to transport goods and passengers, either directly or through transshipment,
between the territory of one riparian State and the territory of another riparian State and
between the territory of a riparian State and the open sea.
article 21
A riparian State may exercise rights of police, including but not limited to the
protection of public safety and health, over that portion of the river or lake subject
to its jurisdiction, provided that the exercise of these rights does not unreasonably
interfere with the enjoyment of the rights of free navigation defined in Articles 19
and 20.
article 22
Each riparian State may restrict or prohibit the loading by vessels of a foreign State of
goods and passengers in its territory for discharge there.
article 23
A riparian State may grant rights of navigation to nonriparian States on rivers or
lakes within its territory.
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article 24
Each riparian State shall, to the extent of the means available or made available to it,
maintain in good order that portion of the navigable course of a river or lake within
its jurisdiction.
article 25
The rules stated in this Chapter are not applicable to the navigation of vessels of war
or of vessels performing police or administrative functions, or, in general, exercising
any other form of public authority.
article 26
In time of war, other armed conflict, or public emergency constituting a threat to
the life of the State, a basin State may take measures derogating from its obligations
under this Chapter to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations
under international law. The basin State shall in any case facilitate navigation for
humanitarian purposes.
cHaPTer v
TIMber flOaTIng
article 27
The floating of timber on an international river or lake is governed by the provisions
of this Chapter except in cases in which the floating is governed by rules of
navigation according to applicable law or custom binding upon the riparians.
article 28
The States riparian to an international river or lake utilized for navigation may
determine by common consent whether and under what conditions timber floating
may be permitted upon that river or lake.
article 29
1. Each State riparian to an international river or lake not used for navigation should, with due
regard to other uses, authorize other riparian States to use that river or lake and its banks
within its territory for the floating of timber.
2. This authorization should extend to all necessary work along the banks by the floating crew
and to the installation of such facilities as may be required for the timber floating.
article 30
If a riparian State requires a permanent installation for timber floating inside the
territory of a co-riparian State or if it is necessary to regulate the flow of the waters,
all questions connected with these installations and measures should be determined
by agreement between the States concerned.
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cHaPTer vI
flOOD cOnTrOl
article 31
As used in this Chapter,
"floods" means the rising of water levels that would have detrimental effects on life
and property in co- basin States; and
"flood control" means the taking of all appropriate steps to protect land areas from
floods or to minimize damage therefrom.
article 32
Basin States shall co-operate in measures of flood control in a spirit of good
neighborliness, having due regard to the interests and well-being of each other.
article 33
Co-operation with respect to flood control may, by agreement between basin States,
include among others:
a) collection and exchange of relevant date;
b) preparation of surveys, investigations, and studies, and their mutual exchange;
c) planning and designing of relevant measures;
d) execution of flood control measures;
e) operation and maintenance of works;
f) flood forecasting and communication of flood warnings; and
g) setting up of a regular information service charged to transmit the height of water
levels and the discharge quantities.
article 34
1. Basin States should communicate amongst themselves as soon as possible on any occasion
such as heavy rainfalls, sudden melting of snow or other events likely to create floods and
dangerous rises of water levels in their territory.
2. Basin States should set up an effective system of transmission in order to fulfil the provisions
contained in paragraph 1, and should ensure priority to the communication of flood warnings
in emergency cases. If necessary a special system of translation should be built up between
the basin States.
article 35
1. The use of the channel of rivers and lakes for the discharge of excess waters shall be free and
not subject to any limitation provided this is not incompatible with the object of flood control.
2. Basin States should maintain in good order their portions of water courses including works for
flood control.
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3. Basin States may undertake schemes of drainage, river draining, conservation of soil against
erosion, and dredging, and the removal of stones, gravel, or sand from the beds of its portions
of an international drainage basin, provided that, in executing any of these activities, they
avoid any unreasonable interference with the object of flood control, and provided that the
activities are not contrary to any legal restrictions that may exist otherwise.
4. Basin States should ensure the prompt execution of repairs or other emergency measures for
minimization of damage by flooding during periods of high waters.
article 36
A basin State is not liable to pay compensation for damage caused to another basin
State by floods originating in that Basin State unless it has acted contrary to what
could be reasonably expected under the circumstances, and unless the damage
caused is substantial.
cHaPTer vII
PrOTecTIOn Of waTer resOurces anD waTer
InsTallaTIOns In TIMes Of arMeD cOnflIcT
article 37
Water which is indispensable for the health and survival of the civilian population
should not be poisoned or rendered otherwise unfit for human consumption.
article 38
Water supply installations that are indispensable for the minimum conditions of
survival of the civilian population should not be cut off or destroyed.
article 39
The diversion of waters for military purposes should be prohibited when it would
cause disproportionate suffering to the civilian population or substantial damage to
the ecological balance of the area concerned. A diversion that is carried out in order
to damage or destroy the minimum conditions of survival of the civilian population
or the basic ecological balance of the area concerned or in order to terrorize the
population should also be prohibited.
article 40
The destruction of water installations containing dangerous forces, such as dams
and dikes, should be prohibited when it may involve grave dangers to the civilian
population or substantial damage to the basic ecological balance.
article 41
The causing of floods as well as any other interference with the hydrologic balance
by means not mentioned in Articles 37 to 40 above should be prohibited when
it involves grave dangers to the civilian population or substantial damage to the
ecological balance of the area concerned.
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article 42
1. The prohibitions contained in Articles 38 to 41 above should be applied also in occupied
enemy territories.
2. The occupying power should administer enemy property according to the indispensable
requirements of the hydrologic balance.
3. In occupied territories, seizure, destruction, or intentional damage to water installations
should be prohibited when their integral maintenance and effectiveness would be vital to the
health and survival of the civilian population.
articles 43
The effect of the outbreak of war on the validity of treaties or of parts thereof
concerning the use of water resources should not be termination but only
suspension. This suspension should take place only when the purpose of the war
or military necessity imperatively demands the suspension and when the minimum
requirements of subsistence for the civil population are safeguarded.
article 44
1. It should be prohibited to deprive, by the provisions of a peace treaty or similar instrument, a
people of its water resources to such an extent that a threat to the health or to the economic or
physical conditions of survival is created.
2. When, as the result of the fixing of a new frontier, the hydraulic system in the territory of one
State is dependent on works established within the territory of another State, arrangements
should be made for the safeguarding of uninterrupted delivery of water supplies indispensable
for the vital needs of the people.
cHaPTer vIII
aDMInIsTraTIOn Of InTernaTIOnal waTer resOurces
article 45
As used in this Chapter, "international water resources administration" means any
form of institutional or other arrangement established by agreement among two or
more basin States for the purpose of dealing with the conservation, development,
and utilization of the waters of an international drainage basin.
article 46
Basin States shall use their best efforts to achieve integrated management of the
waters of their international drainage basins.
article 47
1. When undertaking a joint management of the waters of an international drainage basin,
States should settle all matters concerning this management by an agreement on the
establishment of an international administration. When necessary, a joint agency or
commission should be established and authorized to manage all relevant aspects of
the management.
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2. The establishment of an international water resources administration in accordance with
paragraph 1 above is without prejudice to the existence or subsequent designation of any joint
agency, conciliation commission, or tribunal formed or referred to by co-basin States in the
case of a question or dispute relating to the present or future utilization of the waters of an
international drainage basin.
article 48
1. In order to provide for an effective international water resources administration, the
agreement establishing that administration should expressly state, among other things,
its objective or purpose, nature and composition, form and duration, legal status, area of
operation, functions and powers, and its financial implications.
2. The Guidelines set forth in Annex A to these Rules should be taken into account when an
international water resources administration is to be established.
article 49
Unless otherwise agreed, each basin state party to an agreement establishing
an international water resources administration shall bear a share of its costs
proportionate to the benefits that it derives from that administration.
article 50
Member States of an international water resources administration should in
appropriate cases invite other States, including non-basin States or international
organizations which by treaty, other instrument, or binding custom enjoy a right
or have an interest in the use of the waters of an international drainage basin, to
participate in the activities of the administration.
cHaPTer Ix
reMeDIes
article 51
1. States, individually or jointly, shall ensure the availability of prompt, adequate, and effective
administrative and judicial remedies for persons in another State who suffer or may suffer
substantial damage arising from the inequitable or unreasonable use of the waters of an
international drainage basin in their territories.
2. For the purpose of giving effect to this obligation, States shall ensure cooperation between
their competent courts and authorities, and shall take measures to ensure that any persons
who suffer or may suffer damage resulting from the use in another State of the waters of an
international drainage basin shall have access to such information as is necessary to enable
them to exercise their rights under these Articles in a prompt manner.
3. States should provide, by agreement or otherwise, for such matters as the jurisdiction of
courts, the applicable law, and the enforcement of judgments.
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article 52
1. Any person who suffers or may suffer damage resulting from the use in another State of the
waters of an international drainage basin shall be entitled in that State to the same extent and
on the same conditions as a person in that State:
a) to participate in any environmental impact assessment procedure;
b) to institute proceedings before an appropriate court or administrative authority of
that other State in order to determine whether the damaging use or activity should be
permitted;
c) to obtain preventive remedies;
d) to obtain compensation; and
e) to obtain information necessary for the above purposes.
2. Public bodies and non-governmental associations established in a State which are or may be
affected by damage, including damage to the environment, caused by the use of waters of an
international drainage basin in another State shall be entitled on condition of reciprocity to
initiate proceedings or participate in procedures in that other State to the same extent and on
the same conditions as public bodies and non-governmental associations established there.
cHaPTer x
PrOceDures fOr THe PrevenTIOn anD seTTleMenT Of DIsPuTes
article 53
This Chapter relates to procedures for the prevention and settlement of international
disputes as to the legal rights or other interests of basin States and of other States in
the waters of an international drainage basin.
article 54
Consistently with the Charter of the United Nations, States are under an obligation
to settle international disputes as to their legal rights or other interests by peaceful
means in such a manner that international peace and security, and justice are
not endangered.
article 55
1. States are under a primary obligation to resort to means of prevention and settlement of
disputes stipulated in the applicable treaties binding upon them.
2. States are limited to the means of prevention and settlement of disputes stipulated in treaties
binding upon them only to the extent provided by the applicable treaties.
article 56
In using the waters of an international basin, States individually or jointly as
appropriate shall ensure prior assessment of the impact of programmes or projects
that may have a significant transboundary effect on the environment or on the
sustainable use of the waters.
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article 57
1. With a view to preventing disputes from arising between basin States as to their legal rights or
other interests, each basin State shall furnish relevant and reasonably available information to
the other basin States concerning the waters of a drainage basin within its territory and its use
of and activities with respect to these waters.
2. Expenses for the collection and exchange of information, including the preparation of surveys,
investigations and studies, and for establishing a regular information service shall be borne
jointly by the basin States cooperating in these matters.
article 58
1. When a basin State, regardless of its location in a drainage basin, proposes to undertake, or to
permit the undertaking of, a project that may substantially affect the interests of any co-basin
State, it shall give that State notice of the project. The notice shall include information, data
and specifications adequate for assessment of the effects of the project.
2. After having received the notice required by paragraph 1, a basin State shall have a reasonable
period of time, which shall be not less than six months, to evaluate the project and to
communicate its reasoned objection to the proposing State. During that period the proposing
State shall not proceed with the project.
3. If a basin State does not object to the project within the time permitted under paragraph 2, the
proposing State may proceed with the project in accordance with the notice.
4. If a basin State objects to the project, the States concerned shall make every effort
expeditiously to settle the matter consistent with the procedures set forth in this Chapter. The
proposing State shall not proceed with the project while these efforts are continuing, provided
that they are not unduly protracted. If these efforts are unduly protracted, or an objecting
State has refused to have resort to third party procedures for settlement of the remaining
differences, the proposing State may, on its own responsibility, proceed with the project in
accordance with the notice.
5. If a State has failed to give the notice referred to in paragraph 1 of this Article, the alteration
by the State in the regime of the drainage basin shall not be given the weight normally
accorded to temporal priority in use in the event of a determination of what is a reasonable
and equitable share in the use of the waters of the basin.
6. The notice and other communications referred to in this Article shall be transmitted through
appropriate official channels unless otherwise agreed.
article 59
Basin States shall consult one another on actual or potential problems concerning
the waters of the drainage basin so as to reach by methods of their own choice
a solution consistent with their rights and duties under international law. This
consultation, however, shall not unreasonably delay the implementation of plans that
are the subject of the consultation.
article 60
In case of a dispute between States as to their legal rights or other interests, as
defined in Article 53 above, they shall promptly enter into negotiations with a view to
reaching a solution that is equitable under the circumstances.
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article 61
1. If a question or dispute arises which relates to the present or future utilization of the waters
of an international drainage basin, the basin States should refer the question or dispute
to a joint agency and request the agency to survey the international drainage basin and to
formulate plans or recommendations for the most efficient use thereof in the interests of all
the States concerned.
2. The joint agency should be instructed to submit reports on all matters within its competence
to the appropriate authorities of the States concerned.
3. The member States of the joint agency in appropriate cases should invite non-basin States
that by treaty enjoy a right in the use of the waters of the basin, to associate themselves
with the work of the joint agency, or permit them to appear before the agency.
article 62
If a question or a dispute is one which is considered by the States concerned to be
incapable of resolution in the manner set forth in Article 61, they should jointly seek
the good offices or request the mediation of a third State, of a qualified international
organization, or of a qualified person.
article 63
1. If the States concerned have not been able to resolve their dispute through negotiation
or have been unable to agree on the measures described in Articles 61 and 62, they should
form a commission of inquiry or an ad hoc conciliation commission, which shall endeavor
to find a solution, likely to be accepted by the States concerned, of any dispute as to their
legal rights.
2. The conciliation commission should be constituted in the manner set forth in Annex B to
these Rules.
article 64
The States concerned should agree to sub¬mit their legal disputes to an ad hoc
arbitral tribunal, to a permanent arbitral tribunal, or to the International Court of
Justice if:
a) a commission has not been formed as provided in Article 63, or
b) a commission has not been able to recommend a solution, or
c) a solution recommended by a commission has not been accepted by the States
concerned, or
d) an agreement has not been otherwise arrived at.
article 65
In the event of arbitration, the States concerned should have recourse to the Model
Rules on Arbitral Procedure prepared by the International Law Commission of the
United Nations at its tenth session in 1958.
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article 66
Recourse to arbitration implies the undertaking by the States concerned to consider
the award to be given as final and to submit in good faith to its execution.
article 67
The means of settlement referred to in this Chapter are without prejudice to
the utilization of means of settlement of disputes recommended to, or required
of, members of regional arrangements or agencies and of other international
organizations.
* The Articles that follow are a consolidation prepared by the Water Resources Committee at
Campione d'Italia in June 1999 under the chairmanship of Professor Charles Bourne. These articles
comprise the rules on international water resources as adopted by the International Law Association
between 1966 and 1998.
The Water Resources Committee is now considering revision of these rules to reflect developments
that have occurred since the original rules were adopted.
annex a
guIDelInes fOr THe esTablIsHMenT Of an
InTernaTIOnal waTer resOurces aDMInIsTraTIOn
(In implementation of Article 49, paragraph 2, on International Water Resources Administration)
In establishing an international water resources administration, member States should consider,
on the basis of the requirements of each particular case, the elements contained in the following
guidelines:
1. Form and duration of an international water resources administration will depend on all
relevant factors identified in these guidelines, including:
a) its duration, which may be ad hoc or permanent, and
b) its constitution, which may take the form of:
i.
separate national commissions or agencies;
ii. a joint commission or agency composed of national representatives,
interest groups or representatives of users;
iii. a mixed commission or agency;
iv. a commission or agency vested with super national decision-making powers.
2. Procedures for decision-making will include:
a) a quorum (for the validity of the meeting) which will depend on the importance
of the decision to be taken;
b) the principle of either unanimity, simple or qualified majority, or another combined
form of decision-making.
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3. The legal status of an international water resources administration vis-a-vis both its
member States and other States not parties to the administration as well as vis-a-vis
international and other organizations should be defined. Such legal status will cover:
a) the managing body;
b) the staff;
c) assets, equipment and other properties;
d) the whole administration as such, including the power to sue and to be sued.
4. The territorial competence (ratione loci) of an international water resources administration
should be defined. The choice will depend on a number of factors, such as: the extent of the
drainage area with respect to each member State; the contribution of water by each basin
State to the hydrology of the basin; the economic and social requirements of the basin States;
local interests; the other relevant factors to be considered in each particular case, having
regard to Article V of the Helsinki Rules.
Territorial competence may include:
a) the whole drainage basin, including surface water, underground waters, or both;
b) more than one basin (multi-basin);
c) part of a drainage basin (sub-basin);
d) an area otherwise defined and clearly delimited;
e) all or part of boundary waters.
5. The functions and powers of an international water resources administration should be
defined. These may vary from case to case, depending upon various factors including:
a) (a) the kind of co-operation envisaged;
b) (b) the desired degree of involvement in international administration;
c) (c) the specific fields for which it is proposed to establish the administration.
Such functions and powers may include, without being limited to, one or more of the
following:
a) Advisory, consultative, co-ordinating, or policy-making functions. In these cases,
the agreement should specify the procedural rules for deciding on conflicting rights
and interests, including notification, objections and timing.
b) Executive function, which may include carrying out of studies, exploration,
investigation and surveys, preparation of feasibility reports, inspection and
control of construction, operation, maintenance or financing.
c) Regulatory function, the implementation of the decisions of the administration,
as well as law-making. Decisions in these matters may take effect directly or
after acceptance by member States.
d) Judicial function, which may include arbitration or final dispute settlement.
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6. As regards the objects and purposes (ratione materiae) of an international water resources
administration, these may include one or more of the following:
a) collection and exchange of hydrological, technical and other data, which may be
undertaken by member States separately or jointly, and their standardization;
b) plan formulation, which may include the exchange of plans prepared separately
by member States or jointly formulated plans;
c) co-ordination of plans;
d) construction of waterworks, which may be undertaken by member States
separately or jointly, or which may be entrusted to a non-member State or
to some organization;
e) waterworks operation and maintenance, which may be entrusted to each
member State concerned separately or to a joint administration;
f) control of one or more beneficial uses of water which may include:
i.
domestic and community uses;
ii. agricultural uses, including the watering of animals and agro-allied
industrial uses, including cooling; hydropower generation and
transmission; navigation; timber floating; fishing; and other beneficial uses
of common interest;
g) control of one or more harmful effects of water which may include:
i.
flood control measures, which may imply flow regulations and training;
ii. embankment construction and maintenance;
iii. drought warning, prevention, reduction, and control;
iv. soil erosion control;
v. land reclamation, including salinity control and drainage;
vi. dredging, maintenance and improvement of the navigable section of an
international watercourse;
vii. siltation control;
viii. other harmful effects of common interests;
h) water quality control, including such coastal sea areas of the member States
which may be adversely affected, and which may include:
i.
prevention and abatement of water pollution resulting from one or more
beneficial uses, and harmful effects, and the measures to be taken separately
or jointly by member States;
ii. health preservation, including human beings and genetic resources
(animals and plants), and the measures to be taken separately or jointly
by member States;
iii. environmental protection with reference to the waters of the basin,
including minimum standards and measures to be taken separately
or jointly by member States.
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7. In establishing an international resources administration, one or more of the following
financial and economic matters should be considered:
a) internal financing of the administration, including cost sharing and sharing criteria;
b) development financing of projects and works, in particular including:
i.
cost sharing and criteria for sharing (based on at-site benefit analysis,
system development);
ii. procedures and criteria for compensation;
iii. sharing of benefits including the assessment and collection of revenues
and criteria for sharing;
c) external financing, with particular reference to the powers of the administration
necessary to enter into agreements for this purpose.
8. The agreement establishing an international water resources administration should
contain provisions for the settlement of disputes arising out of its interpretation
and implementation.
annex b
MODel rules fOr THe cOnsTITuTIOn Of THe cOncIlIaTIOn cOMMIssIOn fOr
THe seTTleMenT Of a DIsPuTe
(In implementation of Article 62, paragraph 2)
article 1
The members of the Commission, including the President, shall be appointed by the
States concerned.
article 2
If the States concerned cannot agree on these, each State shall appoint two members.
The members thus appointed shall choose one more member who shall be the
President of the Commission. If the appointed members do not agree, the member-
president shall be appointed, at the request of any State concerned, by the President
of the International Court of Justice or, if he does not make the appointment, by the
Secretary-General of the United Nations.
article 3
The membership of the Commission should include persons who, by reason of their
special competence, are qualified to deal with disputes concerning international
drainage basins.
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article 4
If a member of the Commission abstains from performing his office or is unable to
discharge his responsibilities, he shall be replaced by the procedure set out in Article
1 or 2 of this Annex, according to the manner in which he was originally appointed.
If, in the case of:
1. a member originally appointed under Article 1, the States fail to agree as to
replacement, or
2. a member originally appointed under Article 2, the State involved fails to
replace the member,
a replacement shall be chosen, at the request of any State concerned, by the
President of the International Court of Justice or, if he does not choose the
replacement, by the Secretary-General of the United Nations.
article 5
In the absence of agreement to the contrary between the parties, the Conciliation
Commission shall determine the place of its meetings and shall lay down its
own procedure.
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appendix D
Abstract from Commentary to the Helsinki Rules on the Uses of the Waters of International
Rivers, ILA Report of the Fifty--Second Conference, Helsinki 1966, at 484, 484505 (1966, 1987):
Arts. JXI 4.
(a) General. This Article (equitable and reasonable utilization) reflects the key principle of
international law that every basin State in an international drainage basin has the right to the
reasonable use of the waters of the drainage basin. It rejects the unlimited sovereignty position,
exemplified by the "Harmon Doctrine" which has been cited as supporting the proposition that a State
has the unqualified right to utilize and dispose of the waters of an international river flowing through
its territory; such a position imports its logical corollary, that a State has no right to demand continued
flow from co-basin States.
The Harmon Doctrine has never had a wide following among States and has been rejected by
virtually all States which have had an occasion to speak out on this point.
This Article recognizes that each basin State has rights equal in kind and correlative with those of
each co-basin State. Of course, equal and correlative rights of use among the co-basin States does not
mean that each such State will receive an identical share in the uses of the waters. Those will depend
upon the weighing of factors considered in Article V.
A use of a basin State must take into consideration the economic and social needs of its co-basin
States for use of the waters, and vice-versa. This consideration may result in one co basin State
receiving the right to use water in quantitatively greater amounts than its neighbors in the basin. The
idea of equitable sharing is to provide the maximum benefit to each basin State from the uses of the
waters with the minimum detriment to:
(b) Beneficial Use. To be worthy of protection a use must be "beneficial" that is to say, it must be
economically or socially valuable, as opposed, for example, to a diversion of waters by one State
merely for the purpose of harassing another.
A "beneficial use" need not be the most productive use to which the water may be put, nor need it
utilize the most efficient methods known in order to avoid waste and insure maximum utilization.
As to the former, to provide otherwise would dislocate numerous productive and, indeed, essential
portions of national economies; the latter, while a patently imperfect solution, reflects the financial
limitations of many States; in its application, the present rule is not designed to foster waste but to
hold States to a duty of efficiency which is commensurate with their financial resources. Of course,
the ability of a State to obtain international financing will be considered in this context. Thus, State A,
an economically advanced and prosperous state which utilizes the inundation method of irrigation,
might be required to develop a more efficient and less wasteful system forthwith, while State B, an
underdeveloped State using the same method might be permitted additional time to obtain the
means to make the required improvements.
Comment to Article V
(a) General. This Article provides the express, but flexible guide lines essential to insuring the
protection of the "equal right" of all basin States to share the waters. Under the rules set forth "all the
relevant factors" must be considered. An exhaustive list of factors cannot readily be compiled, for there
would likely be others applicable to particular cases.
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This Article states some of the factors to be considered in determining what is a reasonable and
equitable share.
Stated somewhat more generally, the factor-analysis approach seeks primarily to determine whether
(i) the various uses are compatible, (ii) any of the uses is essential to human life, (iii) the uses are
socially and economically valuable, (iv) other resources are available, (v) any of the uses is "existing"
within the meaning of Article VII, (vi) it is feasible to modify competing uses in order to accommodate
all to some degree, (vii) financial contributions by one or more of the interested basin States for
the construction of works could result in the accommodation of competing uses, (viii) the burden
could be adjusted by the payment of compensation to one or more co-basin States, and (ix) overall
efficiency of water utilization could be improved in order to increase the amount of available water.
In short, no factor has a fixed weight nor will all factors be relevant in all cases. Each factor is given
such weight as it merits relevant to the other factors. And no factor occupies a position of pre-
eminence per se with respect to any other factor. Further, to be relevant, a factor must aid in the
determination or satisfaction of the social and economic needs of the co-basin States.
By way of example, suppose that State A, a lower co-basin State, has, for many years, used the waters
of an international river for irrigation purposes. State B upstream now wishes to utilize the waters
for hydro-electric power production. The uses for hydro-electric power and irrigation purposes are
in partial conflict because the storage period for the hydro-electric use overlaps the growing season.
Neither State uses, or wishes to use, the water for any other purpose at this point in time. State A,
while having made substantial economic progress and enjoying prosperity, continues, as it always
has, to use the inundation method of irrigation. A study of the basin indicates that the hydro-electric
use would be more valuable than irrigation and the resulting dam would permit the introduction of
conservation measures through the control of seasonal flooding, thus providing incidental benefit
to all users. Study indicates that change to modern agricultural irrigation coupled with flow control
afforded by the dam would permit, after a period of adjustment, reasonable agricultural productivity
in State A, although probably less than prevailing before. Moreover, while at one time several million
people in State A depended upon the agricultural products produced in the basin area for survival,
there are now alternative sources for obtaining food, at approximately the same cost, although not
sufficient to satisfy fully all needs. A recent geological survey indicates the presence of substantial
underground waters in the territory of State A. The contemplated uses in State B would benefit a new
community of several hundred thousand people. Power would be obtained from other resources but
at a greater cost. On these facts, the following factors are relevant to a determination of an equitable
sharing: an existing reasonable use; dependence upon the waters; population; geographic, climatic
and weather conditions; the existence of alternative sources of food supply; inefficient utilization; and
the financial status of the respective co-basin States.
An existing reasonable use is entitled to significant weight as a factor and, as indicated in Article V,
consideration must be given to protecting it. However, it is but one factor. In the foregoing illustration,
there are other important factors: irrigation is not the more valuable of the competing uses in this
instance; there are, moreover, alternative sources of food available; the availability of sources of
underground water indicate that the need for water by State A may be satisfied from them, while
State A has nevertheless continued to draw off the same amount of water from the international
river utilizing an outmoded and wasteful process; the economic climate in State A favors growth. As
regards State B, a key factor is that there are alternative sources of power.
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A careful analysis shows that, despite the usual desirability of protecting existing reasonable uses,
the competing factors indicate that some modification of the existing use is called for. The existence
of alternative sources of agricultural products, the conservation benefits to the co-basin States, the
employment of a wasteful and antiquated method of utilization and its potential for replacement by
a less wasteful method within the financial ability of State A and the potential value of the proposed
use all dictate modification and accommodation.
Armed with this information, it may be possible to reconcile the conflicting uses. For example,
reduction in appropriation for irrigation to the extent of the availability of usable water from the
underground sources, or the abandonment of inundation in favor of a more efficient method, or
the utilization of alternate sources of food supply (to the extent that it can reasonably do so) or any
combination of these may be required of State A. On the other hand, State B may be required to
bear some of the cost necessary to develop a modern irrigation system in State A, or in obtaining
alternative food or water supplies for State A. If State A were required to abandon any portion of a
permanent installation, some compensation by State B might be appropriate.
The employment of any one or some combination of the above measures may suffice to reconcile the
conflict. If no other solution can be found, however, one of the uses may necessarily have to prevail
to the impairment of the other use; the amount of and kind of compensation, if any, to the State
deprived of its use would then be determined. Irrigation, although an existing use, may nevertheless
be required to give way since the weight of the factors favours the hydro-electric use. Under these
facts, State B would, in all likelihood, be required to pay State A in part for discontinuance or
impairment of the use.
There are alternative sources of electricity available to State B, but at a higher cost. State A may be
required to compensate State B for all or a part of the cost differential, if the use of the waters for the
production of power is precluded or limited.
This illustration shows how the several factors relevant to the particular case are to be considered and
how the principle of equitable utilization is applied in order to achieve a fair and just settlement.
* * *
Comment to Article X
(a) General. International law imposes general limitations upon action that one State may take which
would cause injury in the territory of another State. In the Corfu Channel Case, the International
Court of Justice stated that international law obliges every State "not to allow knowingly its territory
to be used for acts contrary to the rights of other States." [I.C.J. Rep. 4, 22. The Secretary General of
the United Nations has expressed the view that "There has been general recognition of the rule that
a State must not permit the use of its territory for purposes injurious to the interest of other States in
a manner contrary to international law". [Survey of International Law 34 (U.N.Doc. A/CN.411 Rev. 1)
1949)] This statement is no more than a reflection of the principle sic utere tuo ut alienum non laedas
"one must so use his own as not to do injury to another". The same general thread of principle runs
throughout the range of State-to-State relationships.
As to the law of water pollution, recently this general principle was favourably referred to in the Lake
Lanoux Arbitration between France and Spain, [Int'l.L.Rep. 101, 123 (1957).] In discussing the division
of waters of Lake Lanoux and possible bases of any France's responsibility, the Tribunal stated: "It
could have been argued that the works would bring about a definite pollution of the waters of the
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Canal or that the returned waters would have a chemical composition or a temperature or some other
characteristic were which could injure Spanish interests."
Although not involving pollution of water, the Trail Smelter Arbitration between the United States and
Canada illustrates the general international principle upon which the rules of this article are based.
[Decision of the Tribunal, March 11, 1941 (United States--Canada), 3 U.N.Rep.Int'l.Arb.Awards
1905 (1949), 35 Am.J.Int'l.L. 684 (1941).] There, Canada was held responsible for the then injury and
damage resulting in the United States from fumes emitted from a smelter located in British Columbia
and deposited over a large area of the State of Washington. [The Tribunal concluded ` that under the
principles of international law, as well as of the law of the United States, no state has the right to use
or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of
another or the property of persons therein [U.N.Rep.lnt'l.Arb.Awards at 1965, 35 Am.J.Int'l.L. at 716.
See also Missouri v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572 (1906); New York v. New Jersey, 256
U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921); New Jersey v. City of New York, 283 U.S. 473, 51 S.Ct. 519, 75
LEd. 1176 (1931).]
The Supreme Court of Italy has had occasion to state: If this [State] in the exercise
of its sovereign rights is in a position to establish any regime that it deems most
appropriate over the watercourse, it cannot escape the international duty... to avoid
that, as a consequence of such a regime, other (co-riparian) States are deprived of
the possibility of utilizing the watercourse for their in own national needs." [Societe
Energie Electrique v. Campagnia the Imprese Elettriche Liguri 64 Foro Italiano, I,
1036, 9 Ann.Dig. 120 (Italy, Court of Cassation, 1939).]
Water treaties often incorporate provisions dealing with the pollution of waters by the signatory
States.
(b) Equitable utilization. The optimum goal of international drainage basin development is to
accommodate the multiple and diverse uses of the co-basin States. The concept of equitable
utilization of the waters of an international drainage basin has the purpose of promoting such an
accommodation. Thus, uses of the waters by a basin State that cause pollution resulting in injury in
a co-basin State must be considered from the overall perspective of what constitutes an equitable
utilization.
Any use of water by a basin State, whether upper or lower, that denies an equitable sharing of
uses by a co-basin State conflicts with the community of interests of all basin States in obtaining
maximum benefit from the common resource. Certainly, a diversion of water that denies a co-basin
State an equitable share is in violation of international law. A use that causes pollution to the extent
of depriving a co-basin State of an equitable share stands on the same basis. By parallel reasoning, a
State that engages in a use or uses causing pollution is not required to take measures with respect to
such pollution that would deprive it of equitable utilization.
The rules stated in this Article are not confined to cases of pollution that interfere with or deny an
equitable sharing by a co basin State, but may also apply to cases of pollution that cause other types of
injury in such a State.
Cross reference: See comment (e) infra.
The rules stated in this Article place a duty upon a basin State, consistent with that State's right
to an equitable utilization, to take the specified measures respecting pollution of water. Thus, the
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international duty stated in this Article regarding abatement or the taking of reasonable measures
is not an absolute one. This duty, therefore, does not apply to a State whose use of the waters is
consistent with the equitable utilization of the drainage basin.
The principle of equitable utilization of the waters of an international drainage basin may require, in a
particular case, that the several co-basin states participate jointly in the financing of pollution control
measures.
* * *
(c) Substantial injury. Pollution as that term is used in this Chapter may be the result of reasonable
and otherwise lawful use of the waters of an international basin. For example, the normal process
of irrigation for the reclamation of arid or semi-arid land usually causes an increase in the salinity
of the downstream waters. Modern industrial processes of a very valuable and useful nature may
result in the discharge of deleterious wastes that pollute the water. Frequently rivers are the most
efficient means of sewage disposal, thereby causing pollution of waters. Thus, as pollution may be a
by-product of an otherwise beneficial use of the waters of an international drainage basin, the rule of
international law stated in this Article does not prohibit pollution per se. [Cf. 2 Jiménez de Aréchaga,
Curso de Derecho Internacional Publico, 529-- 530 (1961); Fenwick, international Law, 363--365 (4th
ed.1965).]
However, where the effect of the pollution is such that it is not consistent with the equitable
utilization of the drainage basin and causes "substantial injury" in the territory of another State, the
conduct causing the pollution gives rise to a duty, as stated in this Article, on the part of the State
responsible for the pollution.
Not every injury is substantial. Generally, an injury is considered "substantial" if it materially interferes
with or prevents a reasonable use of the water. On the other hand, to be "substantial" an injury
in the territory of a State need not be connected with that State's use of the waters. For example,
the pollution of water could result in "substantial injury" in the territory of another State by the
transmission, through the evaporative process, of organisms that cause disease.
(d) Conduct for which State responsible. As stated in this Article, under international law a State's
duty may arise in varying factual contexts.
The rule stated in this Article engages the responsibility of a State to take action with respect to all
pollution causing substantial injury in the territory of a co-basin State regardless of whether the
pollution results from public activity of the State itself, within or outside its territory, or from conduct
of private parties within its territory.
* * *
Under the rule stated in this Article, a State is also responsible for its conduct occurring outside its
territory causing substantial injury in the territory of a co-basin State. Thus, the criterion of State
responsibility is its conduct and not the situs of that conduct.
* * *
(e) Danger to human life. If the activity or conduct causes pollution that endangers human life in
another State, such activity or conduct would probably be deemed inconsistent with the principle of
equitable utilization and the duty referred to in paragraph 1(b) of this Article "to take all reasonable
measures" could become an absolute duty to abate the pollution.
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appendix e
CONVENTIONONTHEPROTECTIONANDUSE

OFTRANSBOUNDARYWATERCOURSESANDINTERNATIONALLAKES
doneatHelsinki,on7March99

PREAMBLE
ThePartiestothisConvention,
Mindfulthattheprotectionanduseoftransboundarywatercoursesandinternational
lakesareimportantandurgenttasks,theeffectiveaccomplishmentofwhichcanonlybe
ensuredbyenhancedcooperation,
Concernedovertheexistenceandthreatsofadverseeffects,intheshortorlongterm,of
changesintheconditionsoftransboundarywatercoursesandinternationallakesonthe
environment,economiesandwell-beingofthemembercountriesoftheEconomic
CommissionforEurope(ECE),
Emphasizingtheneedforstrengthenednationalandinternationalmeasurestoprevent,
controlandreducethereleaseofhazardoussubstancesintotheaquaticenvironmentandto
abateeutrophicationandacidification,aswellaspollutionofthemarineenvironment,in
particularcoastalareas,fromland-basedsources,
CommendingtheeffortsalreadyundertakenbytheECEGovernmentstostrengthen
cooperation,onbilateralandmultilaterallevels,fortheprevention,controlandreductionof
transboundarypollution,sustainablewatermanagement,conservationofwaterresourcesand
environmentalprotection,
RecallingthepertinentprovisionsandprinciplesoftheDeclarationoftheStockholm
ConferenceontheHumanEnvironment,theFinalActoftheConferenceonSecurityand
CooperationinEurope(CSCE),theConcludingDocumentsoftheMadridandVienna
MeetingsofRepresentativesoftheParticipatingStatesoftheCSCE,andtheRegional
StrategyforEnvironmentalProtectionandRationalUseofNaturalResourcesinECEMember
CountriescoveringthePerioduptotheYear000andBeyond,
ConsciousoftheroleoftheUnitedNationsEconomicCommissionforEuropein
promotinginternationalcooperationfortheprevention,controlandreductionoftransboundary
waterpollutionandsustainableuseoftransboundarywaters,andinthisregardrecallingthe
ECEDeclarationofPolicyonPreventionandControlofWaterPollution,including
TransboundaryPollution;theECEDeclarationofPolicyontheRationalUseofWater;the
ECEPrinciplesRegardingCooperationintheFieldofTransboundaryWaters;theECE
CharteronGroundwaterManagement;andtheCodeofConductonAccidentalPollutionof
TransboundaryInlandWaters,
ReferringtodecisionsI()andI()adoptedbytheEconomicCommissionfor
Europeatitsforty-secondandforty-fourthsessions,respectively,andtheoutcomeofthe
--
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CSCEMeetingontheProtectionoftheEnvironment(Sofia,Bulgaria,6October-3
November989),
Emphasizingthatcooperationbetweenmembercountriesinregardtotheprotectionand
useoftransboundarywatersshallbeimplementedprimarilythroughtheelaborationof
agreementsbetweencountriesborderingthesamewaters,especiallywherenosuch
agreementshaveyetbeenreached,
Haveagreedasfollows:

Article

DEFINITIONS
ForthepurposesofthisConvention,
.
"Transboundarywaters"meansanysurfaceorgroundwaterswhichmark,crossor
arelocatedonboundariesbetweentwoormoreStates;wherevertransboundarywatersflow
directlyintothesea,thesetransboundarywatersendatastraightlineacrosstheirrespective
mouthsbetweenpointsonthelow-waterlineoftheirbanks;
.
"Transboundaryimpact"meansanysignificantadverseeffectontheenvironment
resultingfromachangeintheconditionsoftransboundarywaterscausedbyahumanactivity,
thephysicaloriginofwhichissituatedwhollyorinpartwithinanareaunderthejurisdiction
ofaParty,withinanareaunderthejurisdictionofanotherParty.Sucheffectsonthe
environmentincludeeffectsonhumanhealthandsafety,flora,fauna,soil,air,water,climate,
landscapeandhistoricalmonumentsorotherphysicalstructuresortheinteractionamongthese
factors;theyalsoincludeeffectsontheculturalheritageorsocio-economicconditions
resultingfromalterationstothosefactors;
3.
"Party"means,unlessthetextotherwiseindicates,aContractingPartytothis
Convention;
.
"RiparianParties"meansthePartiesborderingthesametransboundarywaters;
.
"Jointbody"meansanybilateralormultilateralcommissionorotherappropriate
institutionalarrangementsforcooperationbetweentheRiparianParties;
6.
"Hazardoussubstances"meanssubstanceswhicharetoxic,carcinogenic,
mutagenic,teratogenicorbio-accumulative,especiallywhentheyarepersistent;
7.
"Bestavailabletechnology"(thedefinitioniscontainedinannexItothis
Convention).
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PARTI

PROVISIONSRELATINGTOALLPARTIES

Article

GENERALPROVISIONS
.
ThePartiesshalltakeallappropriatemeasurestoprevent,controlandreduceany
transboundaryimpact.
.
ThePartiesshall,inparticular,takeallappropriatemeasures:
(a) Toprevent,controlandreducepollutionofwaterscausingorlikelytocause
transboundaryimpact;
(b) Toensurethattransboundarywatersareusedwiththeaimofecologicallysound
andrationalwatermanagement,conservationofwaterresourcesandenvironmental
protection;
(c) Toensurethattransboundarywatersareusedinareasonableandequitableway,
takingintoparticularaccounttheirtransboundarycharacter,inthecaseofactivitieswhich
causeorarelikelytocausetransboundaryimpact;
(d) Toensureconservationand,wherenecessary,restorationofecosystems.
3.
Measuresfortheprevention,controlandreductionofwaterpollutionshallbetaken,
wherepossible,atsource.
.
Thesemeasuresshallnotdirectlyorindirectlyresultinatransferofpollutiontoother
partsoftheenvironment.
.
Intakingthemeasuresreferredtoinparagraphsandofthisarticle,thePartiesshall
beguidedbythefollowingprinciples:
(a) Theprecautionaryprinciple,byvirtueofwhichactiontoavoidthepotential
transboundaryimpactofthereleaseofhazardoussubstancesshallnotbepostponedonthe
groundthatscientificresearchhasnotfullyprovedacausallinkbetweenthosesubstances,on
theonehand,andthepotentialtransboundaryimpact,ontheotherhand;
(b) Thepolluter-paysprinciple,byvirtueofwhichcostsofpollutionprevention,
controlandreductionmeasuresshallbebornebythepolluter;
(c) Waterresourcesshallbemanagedsothattheneedsofthepresentgenerationare
metwithoutcompromisingtheabilityoffuturegenerationstomeettheirownneeds.
6.
TheRiparianPartiesshallcooperateonthebasisofequalityandreciprocity,in
particularthroughbilateralandmultilateralagreements,inordertodevelopharmonized
-3-
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policies,programmesandstrategiescoveringtherelevantcatchmentareas,orpartsthereof,
aimedattheprevention,controlandreductionoftransboundaryimpactandaimedatthe
protectionoftheenvironmentoftransboundarywatersortheenvironmentinfluencedbysuch
waters,includingthemarineenvironment.
7.
TheapplicationofthisConventionshallnotleadtothedeteriorationofenvironmental
conditionsnorleadtoincreasedtransboundaryimpact.
8.
TheprovisionsofthisConventionshallnotaffecttherightofPartiesindividuallyor
jointlytoadoptandimplementmorestringentmeasuresthanthosesetdowninthis
Convention.

Article3

PREVENTION,CONTROLANDREDUCTION
.
Toprevent,controlandreducetransboundaryimpact,thePartiesshalldevelop,adopt,
implementand,asfaraspossible,rendercompatiblerelevantlegal,administrative,economic,
financialandtechnicalmeasures,inordertoensure,interalia,that:

(a) Theemissionofpollutantsisprevented,controlledandreducedatsourcethrough
theapplicationof,interalia,low-andnon-wastetechnology;
(b) Transboundarywatersareprotectedagainstpollutionfrompointsourcesthrough
thepriorlicensingofwaste-waterdischargesbythecompetentnationalauthorities,andthat
theauthorizeddischargesaremonitoredandcontrolled;
(c) Limitsforwaste-waterdischargesstatedinpermitsarebasedonthebestavailable
technologyfordischargesofhazardoussubstances;
(d) Stricterrequirements,evenleadingtoprohibitioninindividualcases,areimposed
whenthequalityofthereceivingwaterortheecosystemsorequires;
(e) Atleastbiologicaltreatmentorequivalentprocessesareappliedtomunicipal
wastewater,wherenecessaryinastep-by-stepapproach;
(f) Appropriatemeasuresaretaken,suchastheapplicationofthebestavailable
technology,inordertoreducenutrientinputsfromindustrialandmunicipalsources;
(g) Appropriatemeasuresandbestenvironmentalpracticesaredevelopedand
implementedforthereductionofinputsofnutrientsandhazardoussubstancesfromdiffuse
sources,especiallywherethemainsourcesarefromagriculture(guidelinesfordeveloping
bestenvironmentalpracticesaregiveninannexIItothisConvention);
(h) Environmentalimpactassessmentandothermeansofassessmentareapplied;
(i) Sustainablewater-resourcesmanagement,includingtheapplicationofthe
ecosystemsapproach,ispromoted;
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(j) Contingencyplanningisdeveloped;
(k) Additionalspecificmeasuresaretakentopreventthepollutionofgroundwaters;
(l) Theriskofaccidentalpollutionisminimized.
.
Tothisend,eachPartyshallsetemissionlimitsfordischargesfrompointsourcesinto
surfacewatersbasedonthebestavailabletechnology,whicharespecificallyapplicableto
individualindustrialsectorsorindustriesfromwhichhazardoussubstancesderive.The
appropriatemeasuresmentionedinparagraphofthisarticletoprevent,controlandreduce
theinputofhazardoussubstancesfrompointanddiffusesourcesintowaters,may,interalia,
includetotalorpartialprohibitionoftheproductionoruseofsuchsubstances.Existinglists
ofsuchindustrialsectorsorindustriesandofsuchhazardoussubstancesininternational
conventionsorregulations,whichareapplicableintheareacoveredbythisConvention,shall
betakenintoaccount.
3.
Inaddition,eachPartyshalldefine,whereappropriate,water-qualityobjectivesand
adoptwater-qualitycriteriaforthepurposeofpreventing,controllingandreducing
transboundaryimpact.Generalguidancefordevelopingsuchobjectivesandcriteriaisgiven
inannexIIItothisConvention.Whennecessary,thePartiesshallendeavourtoupdatethis
annex.
Article

MONITORING
ThePartiesshallestablishprogrammesformonitoringtheconditionsoftransboundary
waters.

Article

RESEARCHANDDEVELOPMENT
ThePartiesshallcooperateintheconductofresearchintoanddevelopmentofeffective
techniquesfortheprevention,controlandreductionoftransboundaryimpact.Tothiseffect,
thePartiesshall,onabilateraland/ormultilateralbasis,takingintoaccountresearchactivities
pursuedinrelevantinternationalforums,endeavourtoinitiateorintensifyspecificresearch
programmes,wherenecessary,aimed,interalia,at:
(a) Methodsfortheassessmentofthetoxicityofhazardoussubstancesandthe
noxiousnessofpollutants;
(b) Improvedknowledgeontheoccurrence,distributionandenvironmentaleffectsof
pollutantsandtheprocessesinvolved;
(c) Thedevelopmentandapplicationofenvironmentallysoundtechnologies,
productionandconsumptionpatterns;
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(d) Thephasingoutand/orsubstitutionofsubstanceslikelytohavetransboundary
impact;
(e) Environmentallysoundmethodsofdisposalofhazardoussubstances;
(f) Specialmethodsforimprovingtheconditionsoftransboundarywaters;
(g) Thedevelopmentofenvironmentallysoundwater-constructionworksand
water-regulationtechniques;
(h) Thephysicalandfinancialassessmentofdamageresultingfromtransboundary
impact.
TheresultsoftheseresearchprogrammesshallbeexchangedamongthePartiesinaccordance
witharticle6ofthisConvention.

Article6

EXCHANGEOFINFORMATION
ThePartiesshallprovideforthewidestexchangeofinformation,asearlyaspossible,on
issuescoveredbytheprovisionsofthisConvention.

Article7

RESPONSIBILITYANDLIABILITY
ThePartiesshallsupportappropriateinternationaleffortstoelaboraterules,criteriaand
proceduresinthefieldofresponsibilityandliability.

Article8

PROTECTIONOFINFORMATION
TheprovisionsofthisConventionshallnotaffecttherightsortheobligationsofParties
inaccordancewiththeirnationallegalsystemsandapplicablesupranationalregulationsto
protectinformationrelatedtoindustrialandcommercialsecrecy,includingintellectual
property,ornationalsecurity.
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PARTII

PROVISIONSRELATINGTORIPARIANPARTIES

Article9

BILATERALANDMULTILATERALCOOPERATION
.
TheRiparianPartiesshallonthebasisofequalityandreciprocityenterintobilateralor
multilateralagreementsorotherarrangements,wherethesedonotyetexist,oradaptexisting
ones,wherenecessarytoeliminatethecontradictionswiththebasicprinciplesofthis
Convention,inordertodefinetheirmutualrelationsandconductregardingtheprevention,
controlandreductionoftransboundaryimpact.TheRiparianPartiesshallspecifythe
catchmentarea,orpart(s)thereof,subjecttocooperation.Theseagreementsorarrangements
shallembracerelevantissuescoveredbythisConvention,aswellasanyotherissuesonwhich
theRiparianPartiesmaydeemitnecessarytocooperate.
.
Theagreementsorarrangementsmentionedinparagraphofthisarticleshallprovide
fortheestablishmentofjointbodies.Thetasksofthesejointbodiesshallbe,interalia,and
withoutprejudicetorelevantexistingagreementsorarrangements,thefollowing:
(a) Tocollect,compileandevaluatedatainordertoidentifypollutionsourceslikely
tocausetransboundaryimpact;
(b) Toelaboratejointmonitoringprogrammesconcerningwaterqualityandquantity;
(c) Todrawupinventoriesandexchangeinformationonthepollutionsources
mentionedinparagraph(a)ofthisarticle;
(d) Toelaborateemissionlimitsforwastewaterandevaluatetheeffectivenessof
controlprogrammes;
(e) Toelaboratejointwater-qualityobjectivesandcriteriahavingregardtothe
provisionsofarticle3,paragraph3ofthisConvention,andtoproposerelevantmeasuresfor
maintainingand,wherenecessary,improvingtheexistingwaterquality;
(f) Todevelopconcertedactionprogrammesforthereductionofpollutionloadsfrom
bothpointsources(e.g.municipalandindustrialsources)anddiffusesources(particularly
fromagriculture);
(g) Toestablishwarningandalarmprocedures;
(h) Toserveasaforumfortheexchangeofinformationonexistingandplanneduses
ofwaterandrelatedinstallationsthatarelikelytocausetransboundaryimpact;
(i) Topromotecooperationandexchangeofinformationonthebestavailable
technologyinaccordancewiththeprovisionsofarticle3ofthisConvention,aswellasto
encouragecooperationinscientificresearchprogrammes;
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(j) Toparticipateintheimplementationofenvironmentalimpactassessmentsrelating
totransboundarywaters,inaccordancewithappropriateinternationalregulations.
3.
IncaseswhereacoastalState,beingPartytothisConvention,isdirectlyand
significantlyaffectedbytransboundaryimpact,theRiparianPartiescan,iftheyallsoagree,
invitethatcoastalStatetobeinvolvedinanappropriatemannerintheactivitiesofmultilateral
jointbodiesestablishedbyPartiesripariantosuchtransboundarywaters.
.
JointbodiesaccordingtothisConventionshallinvitejointbodies,establishedbycoastal
Statesfortheprotectionofthemarineenvironmentdirectlyaffectedbytransboundaryimpact,
tocooperateinordertoharmonizetheirworkandtoprevent,controlandreducethe
transboundaryimpact.
.
Wheretwoormorejointbodiesexistinthesamecatchmentarea,theyshallendeavour
tocoordinatetheiractivitiesinordertostrengthentheprevention,controlandreductionof
transboundaryimpactwithinthatcatchmentarea.

Article0

CONSULTATIONS
ConsultationsshallbeheldbetweentheRiparianPartiesonthebasisofreciprocity,
goodfaithandgood-neighbourliness,attherequestofanysuchParty.Suchconsultations
shallaimatcooperationregardingtheissuescoveredbytheprovisionsofthisConvention.
Anysuchconsultationsshallbeconductedthroughajointbodyestablishedunderarticle9of
thisConvention,whereoneexists.

Article

JOINTMONITORINGANDASSESSMENT
.
Intheframeworkofgeneralcooperationmentionedinarticle9ofthisConvention,or
specificarrangements,theRiparianPartiesshallestablishandimplementjointprogrammesfor
monitoringtheconditionsoftransboundarywaters,includingfloodsandicedrifts,aswellas
transboundaryimpact.
.
TheRiparianPartiesshallagreeuponpollutionparametersandpollutantswhose
dischargesandconcentrationintransboundarywatersshallberegularlymonitored.
3.
TheRiparianPartiesshall,atregularintervals,carryoutjointorcoordinated
assessmentsoftheconditionsoftransboundarywatersandtheeffectivenessofmeasurestaken
fortheprevention,controlandreductionoftransboundaryimpact.Theresultsofthese
assessmentsshallbemadeavailabletothepublicinaccordancewiththeprovisionssetoutin
article6ofthisConvention.
.
Forthesepurposes,theRiparianPartiesshallharmonizerulesforthesettingupand
operationofmonitoringprogrammes,measurementsystems,devices,analyticaltechniques,
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dataprocessingandevaluationprocedures,andmethodsfortheregistrationofpollutants
discharged.

Article

COMMONRESEARCHANDDEVELOPMENT
Intheframeworkofgeneralcooperationmentionedinarticle9ofthisConvention,or
specificarrangements,theRiparianPartiesshallundertakespecificresearchanddevelopment
activitiesinsupportofachievingandmaintainingthewater-qualityobjectivesandcriteria
whichtheyhaveagreedtosetandadopt.

Article3

EXCHANGEOFINFORMATIONBETWEENRIPARIANPARTIES
.
TheRiparianPartiesshall,withintheframeworkofrelevantagreementsorother
arrangementsaccordingtoarticle9ofthisConvention,exchangereasonablyavailabledata,
interalia,on:
(a) Environmentalconditionsoftransboundarywaters;
(b) Experiencegainedintheapplicationandoperationofbestavailabletechnology
andresultsofresearchanddevelopment;
(c) Emissionandmonitoringdata;
(d) Measurestakenandplannedtobetakentoprevent,controlandreduce
transboundaryimpact;
(e) Permitsorregulationsforwaste-waterdischargesissuedbythecompetent
authorityorappropriatebody.
.
Inordertoharmonizeemissionlimits,theRiparianPartiesshallundertaketheexchange
ofinformationontheirnationalregulations.
3.
IfaRiparianPartyisrequestedbyanotherRiparianPartytoprovidedataorinformation
thatisnotavailable,theformershallendeavourtocomplywiththerequestbutmaycondition
itscomplianceuponthepayment,bytherequestingParty,ofreasonablechargesforcollecting
and,whereappropriate,processingsuchdataorinformation.
.
ForthepurposesoftheimplementationofthisConvention,theRiparianPartiesshall
facilitatetheexchangeofbestavailabletechnology,particularlythroughthepromotionof:the
commercialexchangeofavailabletechnology;directindustrialcontactsandcooperation,
includingjointventures;theexchangeofinformationandexperience;andtheprovisionof
technicalassistance.TheRiparianPartiesshallalsoundertakejointtrainingprogrammesand
theorganizationofrelevantseminarsandmeetings.
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Article

WARNINGANDALARMSYSTEMS
TheRiparianPartiesshallwithoutdelayinformeachotheraboutanycriticalsituation
thatmayhavetransboundaryimpact.TheRiparianPartiesshallsetup,whereappropriate,and
operatecoordinatedorjointcommunication,warningandalarmsystemswiththeaimof
obtainingandtransmittinginformation.Thesesystemsshalloperateonthebasisof
compatibledatatransmissionandtreatmentproceduresandfacilitiestobeagreeduponbythe
RiparianParties.TheRiparianPartiesshallinformeachotheraboutcompetentauthoritiesor
pointsofcontactdesignatedforthispurpose.

Article

MUTUALASSISTANCE
.
Ifacriticalsituationshouldarise,theRiparianPartiesshallprovidemutualassistance
uponrequest,followingprocedurestobeestablishedinaccordancewithparagraphofthis
article.
.
TheRiparianPartiesshallelaborateandagreeuponproceduresformutualassistance
addressing,interalia,thefollowingissues:
(a) Thedirection,control,coordinationandsupervisionofassistance;
(b) LocalfacilitiesandservicestoberenderedbythePartyrequestingassistance,
including,wherenecessary,thefacilitationofborder-crossingformalities;
(c) Arrangementsforholdingharmless,indemnifyingand/orcompensatingthe
assistingPartyand/oritspersonnel,aswellasfortransitthroughterritoriesofthirdParties,
wherenecessary;
(d) Methodsofreimbursingassistanceservices.

Article6

PUBLICINFORMATION
.
TheRiparianPartiesshallensurethatinformationontheconditionsoftransboundary
waters,measurestakenorplannedtobetakentoprevent,controlandreducetransboundary
impact,andtheeffectivenessofthosemeasures,ismadeavailabletothepublic.Forthis
purpose,theRiparianPartiesshallensurethatthefollowinginformationismadeavailableto
thepublic:
(a) Water-qualityobjectives;
(b) Permitsissuedandtheconditionsrequiredtobemet;
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(c) Resultsofwaterandeffluentsamplingcarriedoutforthepurposesofmonitoring
andassessment,aswellasresultsofcheckingcompliancewiththewater-qualityobjectivesor
thepermitconditions.
.
TheRiparianPartiesshallensurethatthisinformationshallbeavailable
tothepublicatallreasonabletimesforinspectionfreeofcharge,andshallprovidemembers
ofthepublicwithreasonablefacilitiesforobtainingfromtheRiparianParties,onpaymentof
reasonablecharges,copiesofsuchinformation.

PARTIII

INSTITUTIONALANDFINALPROVISIONS

Article7

MEETINGOFPARTIES
.
ThefirstmeetingofthePartiesshallbeconvenednolaterthanoneyearafterthedateof
theentryintoforceofthisConvention.Thereafter,ordinarymeetingsshallbeheldeverythree
years,oratshorterintervalsaslaiddownintherulesofprocedure.ThePartiesshallholdan
extraordinarymeetingiftheysodecideinthecourseofanordinarymeetingoratthewritten
requestofanyParty,providedthat,withinsixmonthsofitbeingcommunicatedtoallParties,
thesaidrequestissupportedbyatleastonethirdoftheParties.
.
Attheirmeetings,thePartiesshallkeepundercontinuousreviewtheimplementationof
thisConvention,and,withthispurposeinmind,shall:
(a) Reviewthepoliciesforandmethodologicalapproachestotheprotectionanduse
oftransboundarywatersofthePartieswithaviewtofurtherimprovingtheprotectionanduse
oftransboundarywaters;
(b) Exchangeinformationregardingexperiencegainedinconcludingand
implementingbilateralandmultilateralagreementsorotherarrangementsregardingthe
protectionanduseoftransboundarywaterstowhichoneormoreofthePartiesareparty;
(c) Seek,whereappropriate,theservicesofrelevantECEbodiesaswellasother
competentinternationalbodiesandspecificcommitteesinallaspectspertinenttothe
achievementofthepurposesofthisConvention;
(d) Attheirfirstmeeting,considerandbyconsensusadoptrulesofprocedurefortheir
meetings;
(e) ConsiderandadoptproposalsforamendmentstothisConvention;
(f) Considerandundertakeanyadditionalactionthatmayberequiredforthe
achievementofthepurposesofthisConvention.
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Article8

RIGHTTOVOTE
.
Exceptasprovidedforinparagraphofthisarticle,eachPartytothisConventionshall
haveonevote.
.
Regionaleconomicintegrationorganizations,inmatterswithintheircompetence,shall
exercisetheirrighttovotewithanumberofvotesequaltothenumberoftheirmemberStates
whicharePartiestothisConvention.Suchorganizationsshallnotexercisetheirrighttovote
iftheirmemberStatesexercisetheirs,andviceversa.

Article9

SECRETARIAT
TheExecutiveSecretaryoftheEconomicCommissionforEuropeshallcarryoutthe
followingsecretariatfunctions:
(a) TheconveningandpreparingofmeetingsoftheParties;
(b) ThetransmissiontothePartiesofreportsandotherinformationreceivedin
accordancewiththeprovisionsofthisConvention;
(c) TheperformanceofsuchotherfunctionsasmaybedeterminedbytheParties.

Article0

ANNEXES
AnnexestothisConventionshallconstituteanintegralpartthereof.

Article

AMENDMENTSTOTHECONVENTION
.
AnyPartymayproposeamendmentstothisConvention.
.
ProposalsforamendmentstothisConventionshallbeconsideredatameetingofthe
Parties.
3.
ThetextofanyproposedamendmenttothisConventionshallbesubmittedinwritingto
theExecutiveSecretaryoftheEconomicCommissionforEurope,whoshallcommunicateitto
allPartiesatleastninetydaysbeforethemeetingatwhichitisproposedforadoption.
.
AnamendmenttothepresentConventionshallbeadoptedbyconsensusofthe
representativesofthePartiestothisConventionpresentatameetingoftheParties,andshall
enterintoforceforthePartiestotheConventionwhichhaveaccepteditontheninetiethday
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afterthedateonwhichtwothirdsofthosePartieshavedepositedwiththeDepositarytheir
instrumentsofacceptanceoftheamendment.Theamendmentshallenterintoforceforany
otherPartyontheninetiethdayafterthedateonwhichthatPartydepositsitsinstrumentof
acceptanceoftheamendment.

Article

SETTLEMENTOFDISPUTES
.
IfadisputearisesbetweentwoormorePartiesabouttheinterpretationorapplicationof
thisConvention,theyshallseekasolutionbynegotiationorbyanyothermeansofdispute
settlementacceptabletothepartiestothedispute.
.
Whensigning,ratifying,accepting,approvingoraccedingtothisConvention,oratany
timethereafter,aPartymaydeclareinwritingtotheDepositarythat,foradisputenotresolved
inaccordancewithparagraphofthisarticle,itacceptsoneorbothofthefollowingmeansof
disputesettlementascompulsoryinrelationtoanyPartyacceptingthesameobligation:
(a) SubmissionofthedisputetotheInternationalCourtofJustice;
(b) ArbitrationinaccordancewiththeproceduresetoutinannexIV.
3.
Ifthepartiestothedisputehaveacceptedbothmeansofdisputesettlementreferredtoin
paragraphofthisarticle,thedisputemaybesubmittedonlytotheInternationalCourtof
Justice,unlessthepartiesagreeotherwise.

Article3

SIGNATURE
ThisConventionshallbeopenforsignatureatHelsinkifrom7to8March99
inclusive,andthereafteratUnitedNationsHeadquartersinNewYorkuntil8September
99,byStatesmembersoftheEconomicCommissionforEuropeaswellasStateshaving
consultativestatuswiththeEconomicCommissionforEuropepursuanttoparagraph8of
EconomicandSocialCouncilresolution36(IV)of8March97,andbyregionaleconomic
integrationorganizationsconstitutedbysovereignStatesmembersoftheEconomic
CommissionforEuropetowhichtheirmemberStateshavetransferredcompetenceover
mattersgovernedbythisConvention,includingthecompetencetoenterintotreatiesinrespect
ofthesematters.

Article

DEPOSITARY
TheSecretary-GeneraloftheUnitedNationsshallactastheDepositaryofthis
Convention.
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Article

RATIFICATION,ACCEPTANCE,APPROVALANDACCESSION
.
ThisConventionshallbesubjecttoratification,acceptanceorapprovalbysignatory
Statesandregionaleconomicintegrationorganizations.
.
ThisConventionshallbeopenforaccessionbytheStatesandorganizationsreferredto
inarticle3.
3.
Anyorganizationreferredtoinarticle3whichbecomesaPartytothisConvention
withoutanyofitsmemberStatesbeingaPartyshallbeboundbyalltheobligationsunderthis
Convention.Inthecaseofsuchorganizations,oneormoreofwhosememberStatesisaParty
tothisConvention,theorganizationanditsmemberStatesshalldecideontheirrespective
responsibilitiesfortheperformanceoftheirobligationsunderthisConvention.Insuchcases,
theorganizationandthememberStatesshallnotbeentitledtoexerciserightsunderthis
Conventionconcurrently.
.
Intheirinstrumentsofratification,acceptance,approvaloraccession,theregional
economicintegrationorganizationsreferredtoinarticle3shalldeclaretheextentoftheir
competencewithrespecttothemattersgovernedbythisConvention.Theseorganizations
shallalsoinformtheDepositaryofanysubstantialmodificationtotheextentoftheir
competence.

Article6

ENTRYINTOFORCE
.
ThisConventionshallenterintoforceontheninetiethdayafterthedateofdepositof
thesixteenthinstrumentofratification,acceptance,approvaloraccession.
.
Forthepurposesofparagraphofthisarticle,anyinstrumentdepositedbyaregional
economicintegrationorganizationshallnotbecountedasadditionaltothosedepositedby
Statesmembersofsuchanorganization.
3.
ForeachStateororganizationreferredtoinarticle3whichratifies,acceptsor
approvesthisConventionoraccedestheretoafterthedepositofthesixteenthinstrumentof
ratification,acceptance,approvaloraccession,theConventionshallenterintoforceonthe
ninetiethdayafterthedateofdepositbysuchStateororganizationofitsinstrumentof
ratification,acceptance,approvaloraccession.

Article7

WITHDRAWAL
AtanytimeafterthreeyearsfromthedateonwhichthisConventionhascomeinto
forcewithrespecttoaParty,thatPartymaywithdrawfromtheConventionbygivingwritten
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notificationtotheDepositary.Anysuchwithdrawalshalltakeeffectontheninetiethdayafter
thedateofitsreceiptbytheDepositary.

Article8

AUTHENTICTEXTS
TheoriginalofthisConvention,ofwhichtheEnglish,FrenchandRussiantextsare
equallyauthentic,shallbedepositedwiththeSecretary-GeneraloftheUnitedNations.
INWITNESSWHEREOFtheundersigned,beingdulyauthorizedthereto,havesigned
thisConvention.
DONEatHelsinki,thisseventeenthdayofMarchonethousandninehundredand
ninety-two.
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ANNEXI

DEFINITIONOFTHETERM"BESTAVAILABLETECHNOLOGY"
.
Theterm"bestavailabletechnology"istakentomeanthelateststageofdevelopmentof
processes,facilitiesormethodsofoperationwhichindicatethepracticalsuitabilityofa
particularmeasureforlimitingdischarges,emissionsandwaste.Indeterminingwhetheraset
ofprocesses,facilitiesandmethodsofoperationconstitutethebestavailabletechnologyin
generalorindividualcases,specialconsiderationisgivento:
(a) Comparableprocesses,facilitiesormethodsofoperationwhichhaverecently
beensuccessfullytriedout;
(b) Technologicaladvancesandchangesinscientificknowledgeandunderstanding;
(c) Theeconomicfeasibilityofsuchtechnology;
(d) Timelimitsforinstallationinbothnewandexistingplants;
(e) Thenatureandvolumeofthedischargesandeffluentsconcerned;
(f) Low-andnon-wastetechnology.
.
Itthereforefollowsthatwhatis"bestavailabletechnology"foraparticularprocesswill
changewithtimeinthelightoftechnologicaladvances,economicandsocialfactors,aswell
asinthelightofchangesinscientificknowledgeandunderstanding.
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ANNEXII

GUIDELINESFORDEVELOPINGBESTENVIRONMENTALPRACTICES
.
Inselectingforindividualcasesthemostappropriatecombinationofmeasureswhich
mayconstitutethebestenvironmentalpractice,thefollowinggraduatedrangeofmeasures
shouldbeconsidered:
(a) Provisionofinformationandeducationtothepublicandtousersaboutthe
environmentalconsequencesofthechoiceofparticularactivitiesandproducts,theiruseand
ultimatedisposal;
(b) Thedevelopmentandapplicationofcodesofgoodenvironmentalpracticewhich
coverallaspectsoftheproduct'slife;
(c) Labelsinformingusersofenvironmentalrisksrelatedtoaproduct,itsuseand
ultimatedisposal;
(d) Collectionanddisposalsystemsavailabletothepublic;
(e) Recycling,recoveryandreuse;
(f) Applicationofeconomicinstrumentstoactivities,productsorgroupsofproducts;
(g) Asystemoflicensing,whichinvolvesarangeofrestrictionsoraban.
.
Indeterminingwhatcombinationofmeasuresconstitutebestenvironmentalpractices,in
generalorinindividualcases,particularconsiderationshouldbegivento:
(a) Theenvironmentalhazardof:
(i)Theproduct;
(ii)Theproduct'sproduction;
(iii)Theproduct'suse;
(iv)Theproduct'sultimatedisposal;
(b) Substitutionbylesspollutingprocessesorsubstances;
(c) Scaleofuse;
(d) Potentialenvironmentalbenefitorpenaltyofsubstitutematerialsoractivities;
(e) Advancesandchangesinscientificknowledgeandunderstanding;
(f) Timelimitsforimplementation;
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(g) Socialandeconomicimplications.
3.
Itthereforefollowsthatbestenvironmentalpracticesforaparticularsourcewillchange
withtimeinthelightoftechnologicaladvances,economicandsocialfactors,aswellasinthe
lightofchangesinscientificknowledgeandunderstanding.
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ANNEXIII

GUIDELINESFORDEVELOPINGWATER-QUALITY

OBJECTIVESANDCRITERIA
Water-qualityobjectivesandcriteriashall:
(a) Takeintoaccounttheaimofmaintainingand,wherenecessary,improvingthe
existingwaterquality;
(b) Aimatthereductionofaveragepollutionloads(inparticularhazardous
substances)toacertaindegreewithinacertainperiodoftime;
(c) Takeintoaccountspecificwater-qualityrequirements(rawwaterfor
drinking-waterpurposes,irrigation,etc.);
(d) Takeintoaccountspecificrequirementsregardingsensitiveandspecially
protectedwatersandtheirenvironment,e.g.lakesandgroundwaterresources;
(e) Bebasedontheapplicationofecologicalclassificationmethodsandchemical
indicesforthemedium-andlong-termreviewofwater-qualitymaintenanceandimprovement;
(f) Takeintoaccountthedegreetowhichobjectivesarereachedandtheadditional
protectivemeasures,basedonemissionlimits,whichmayberequiredinindividualcases.
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ANNEXIV

ARBITRATION
.
Intheeventofadisputebeingsubmittedforarbitrationpursuanttoarticle,paragraph
ofthisConvention,apartyorpartiesshallnotifythesčcretariatofthesubject-matterof
arbritrationandindicate,inparticular,thearticlesofthisConventionwhoseinterpretationor
applicationisatissue.ThesecretariatshallforwardtheinformationreceivedtoallPartiesto
thisConvention.
.
Thearbitraltribunalshallconsistofthreemembers.Boththeclaimantpartyorparties
andtheotherpartyorpartiestothedisputeshallappointanarbitrator,andthetwoarbitrators
soappointedshalldesignatebycommonagreementthethirdarbitrator,whoshallbethe
presidentofthearbitraltribunal.Thelattershallnotbeanationalofoneofthepartiestothe
dispute,norhavehisorherusualplaceofresidenceintheterritoryofoneoftheseparties,nor
beemployedbyanyofthem,norhavedealtwiththecaseinanyothercapacity.
3.
Ifthepresidentofthearbitraltribunalhasnotbeendesignatedwithintwomonthsofthe
appointmentofthesecondarbitrator,theExecutiveSecretaryoftheEconomicCommission
forEuropeshall,attherequestofeitherpartytothedispute,designatethepresidentwithina
furthertwo-monthperiod.
.
Ifoneofthepartiestothedisputedoesnotappointanarbitratorwithintwomonthsof
thereceiptoftherequest,theotherpartymaysoinformtheExecutiveSecretaryofthe
EconomicCommissionforEurope,whoshalldesignatethepresidentofthearbitraltribunal
withinafurthertwo-monthperiod.Upondesignation,thepresidentofthearbitraltribunal
shallrequestthepartywhichhasnotappointedanarbitratortodosowithintwomonths.Ifit
failstodosowithinthatperiod,thepresidentshallsoinformtheExecutiveSecretaryofthe
EconomicCommissionforEurope,whoshallmakethisappointmentwithinafurther
two-monthperiod.
.
Thearbitraltribunalshallrenderitsdecisioninaccordancewithinternationallawand
theprovisionsofthisConvention.
6.
Anyarbitraltribunalconstitutedundertheprovisionssetoutinthisannexshalldrawup
itsownrulesofprocedure.
7.
Thedecisionsofthearbitraltribunal,bothonprocedureandonsubstance,shallbetaken
bymajorityvoteofitsmembers.
8.
Thetribunalmaytakeallappropriatemeasurestoestablishthefacts.
9.
Thepartiestothedisputeshallfacilitatetheworkofthearbitraltribunaland,in
particular,usingallmeansattheirdisposal,shall:
(a) Provideitwithallrelevantdocuments,facilitiesandinformation;
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(b)Enableit,wherenecessary,tocallwitnessesorexpertsandreceivetheirevidence.
0. Thepartiesandthearbitratorsshallprotecttheconfidentialityofanyinformationthey
receiveinconfidenceduringtheproceedingsofthearbitraltribunal.
. Thearbitraltribunalmay,attherequestofoneoftheparties,recommendinterim
measuresofprotection.
. Ifoneofthepartiestothedisputedoesnotappearbeforethearbitraltribunalorfailsto
defenditscase,theotherpartymayrequestthetribunaltocontinuetheproceedingsandto
renderitsfinaldecision.Absenceofapartyorfailureofapartytodefenditscaseshallnot
constituteabartotheproceedings.
3. Thearbitraltribunalmayhearanddeterminecounter-claimsarisingdirectlyoutofthe
subject-matterofthedispute.
. Unlessthearbitraltribunaldeterminesotherwisebecauseoftheparticularcircumstances
ofthecase,theexpensesofthetribunal,includingtheremunerationofitsmembers,shallbe
bornebythepartiestothedisputeinequalshares.Thetribunalshallkeeparecordofallits
expenses,andshallfurnishafinalstatementthereoftotheparties.
. AnyPartytothisConventionwhichhasaninterestofalegalnatureinthe
subject-matterofthedispute,andwhichmaybeaffectedbyadecisioninthecase,may
interveneintheproceedingswiththeconsentofthetribunal.
6. Thearbitraltribunalshallrenderitsawardwithinfivemonthsofthedateonwhichitis
established,unlessitfindsitnecessarytoextendthetimelimitforaperiodwhichshouldnot
exceedfivemonths.
7. Theawardofthearbitraltribunalshallbeaccompaniedbyastatementofreasons.It
shallbefinalandbindinguponallpartiestothedispute.Theawardwillbetransmittedbythe
arbitraltribunaltothepartiestothedisputeandtothesecretariat.Thesecretariatwillforward
theinformationreceivedtoallPartiestothisConvention.
8. Anydisputewhichmayarisebetweenthepartiesconcerningtheinterpretationor
executionoftheawardmaybesubmittedbyeitherpartytothearbitraltribunalwhichmade
theawardor,ifthelattercannotbeseizedthereof,toanothertribunalconstitutedforthis
purposeinthesamemannerasthefirst.

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appendix f
ADVERSARIES INTO PARTNERS: INTERNATIONAL
WATER LAW AND THE EQUITABLE SHARING OF
DOWNSTREAM BENEFITS
Equitable Sharing of Downstream Benefits
RICHARD PAISLEY*
[This paper first reviews the role of international law in the governance of international
watercourses, including the role of the principle of equitable utilisation. Discussion then turns to
a suggested logical corollary to the principle of equitable utilisation: a principle of equitable
sharing of downstream benefits. The situation with regard to the equitable sharing of
downstream benefits on the Columbia River is discussed together with other examples.
Consideration follows of the possible application of the principle of equitable sharing of
downstream benefits to help resolve conflict in other international watercourses including the
Karnali and the Mekong. The paper concludes that there is a role for an emerging principle of
equitable sharing of downstream benefits in helping to turn historical adversaries into partners.]
CONTENTS
I
Introduction
II
International Water Law
III The Principle of Equitable Utilisation
IV The Columbia River and the Equitable Sharing of Downstream Benefits
V
Downstream Benefits
VI The Karnali River (Nepal/India)
VII The Mekong River (China/Myanmar/Thailand/Cambodia/Laos/Vietnam)
VIII Turning Adversaries into Partners
I
INTRODUCTION
There are currently at least 250 international watercourses in the world shared
between two or more sovereign nations.1 In many of these sovereign nations

* BSc (British Columbia), MSc (Washington), JD (Pepperdine), LLM (London); Member of
the Bar, British Columbia, Canada; Director, Dr Andrew R Thompson Natural Resources
Law Program, Faculty of Law, and the Westwater Research Center, Faculty of Graduate
Studies, University of British Columbia. The author gratefully acknowledges the advice and
assistance in the preparation of this paper of Dr Kul Bhurtel, Water and Energy Commission
Secretariat, Kathmandu, Nepal; Professor Emeritus Charles Bourne, Faculty of Law,
University of British Columbia, Vancouver, Canada; Scott Ferguson, Asian Development
Bank and formerly Director of the Water and Institutional Development Project, Kathmandu,
Nepal; Professor Steve McCaffrey, University of the Pacific, Sacramento, US; Chris
Sanderson, Barrister, Lawson Lundell, Barristers and Solicitors, Vancouver, Canada; Pech
Sokhem and Chaiyuth Sukhsri, Mekong River Commission Secretariat, Phnom Penh,
Cambodia. The opinions expressed are those of the author alone and do not necessarily
reflect positions taken or views held by either His Majesty's Government of Nepal or the
Mekong River Commission Secretariat.
1 The two best known international legal instruments dealing with shared watercourses are the
United Nations Convention on the Law of the Non-Navigational Uses of International
Watercourses, opened for signature 21 May 1997, 36 ILM 700 (1997) (not yet in force)
(`UN Watercourses Convention') and the Committee on the Uses of the Waters of
International Rivers, International Law Association, Helsinki Rules on the Uses of the
Waters of International Rivers and Comments (1966) (`Helsinki Rules'). They use slightly
different terminology. The UN Watercourses Convention, in art 2, defines a `watercourse' as
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water resource development is considered a critically important vehicle both to
help alleviate poverty and to stimulate economic growth.2 Many of these nations
also wish to obtain economic benefits, including those from flood control,
irrigation and hydropower development activities.3 This paper has three
objectives. The first is to review briefly the development of the fundamental
international water law principle of `equitable utilisation'. The second objective
is to identify and review a suggested logical corollary to the principle of
equitable utilisation, namely an emerging principle of equitable sharing of
downstream benefits, by considering experiences in relation to the Columbia
River and elsewhere. The third objective is to apply the principle of equitable
sharing of downstream benefits to the Karnali (Nepal/India) and Mekong
(China/Myanmar/Cambodia/Laos/Thailand/Vietnam) international watercourses,
to assess the potential usefulness of the principle in assisting to resolve
longstanding conflicts between upstream and downstream states, and in helping
to turn historical adversaries into partners.
II
INTERNATIONAL WATER LAW
International water law belongs to the field of public international law that
deals primarily with the non-navigational uses of international watercourses.4
International law in general is composed of decisions about events that have
effects on more than one state or entity, and provides expectations about how
states are expected to behave in particular circumstances.5
The `principle of equitable utilisation' is generally considered to be the
fundamental principle of the law of the non-navigational uses of international

`a system of surface waters and ground waters constituting by virtue of their physical
relationship a unitary whole and normally flowing into a common terminus' and an
`international watercourse' as `a watercourse, parts of which are situated in different States'.
Contrast with the Helsinki Rules which, in art 2, define 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.'
2 B Verghese et al (eds), Converting Water into Wealth: Regional Cooperation in Harnessing
the Eastern Himalayan Rivers (1994) 13­14, 86­109.
3 Ibid 101.
4 The literature dealing with the non-navigational uses of international watercourses is
voluminous. See, eg, Stephen McCaffrey, The Law of International Watercourses: Non-
Navigational Uses (2001); Richard Paisley and Timothy McDaniels, `International Water
Law, Acceptable Pollution Risk and the Tatshenshini River' (1995) 35 Natural Resources
Journal 111.
5 Article 38 of the Statute of the International Court of Justice is `generally regarded as a
complete statement of the sources of international law': Ian Brownlie, Principles of Public
International Law (5th ed, 1998) 3. These sources include treaties, custom, general principles
recognised by civilised nations, domestic judicial decisions and learned teachings. Article 38
also empowers the Court to exercise ex aequo et bono jurisdiction where the parties consent.
For further discussion of the sources of international law, see Paisley and McDaniels, above
n 4, 118; William Burke, International Law of the Sea: Documents and Notes (1997) xxiii.
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watercourses.6 This principle is enshrined in both the Helsinki Rules and the UN
Watercourses Convention.7

6 Charles Bourne, `Fresh Water as a Scarce Resource' (Paper presented at a Panel Discussion
at the Canadian Council on International Law Conference, October 1989), cited in Paisley
and McDaniels, above n 4, 118­19, notes that prior to the emergence of the principle of
equitable utilisation in the 1960s as the dominant undisputed principle of international water
law there were three competing theories:
the first was territorial sovereignty; under it a state can do as it pleases with the water
in its territory, ignoring the effect of its actions on neighboring states. Upstream states
favored this view of the law. The second theory was riparian rights; the waters must
be allowed to flow downstream substantially unchanged in quality and undiminished
in quantity. Under it a downstream state in effect has a veto over any major utilization
of the waters by upstream sites. Downstream states adhered to this view. The classic
case was Pakistan's invocation of this principle in its dispute with India over the
Indus River in the 1940s and 1950s. The third theory was prior appropriation; the
first utilization has priority in law. In other words, existing uses must not be affected
by subsequent developments. This principle seems reasonable until its implications
are fully realized. Developments of an international river usually take place first near
its mouth and gradually proceed upstream. Consequently when the upstream state
later wishes to develop its part of the river, it is faced with substantial prior
appropriations downstream. In substance this theory was used against Canada in the
dispute with the United States about the development of the Columbia River.
According to Bourne, it was the imperfections of these theories which led eventually to the
principle of equitable utilisation becoming the governing principle in international water
law: at 3. For further discussion regarding equitable utilisation and its relationship to the `no
harm' principle, see Stephen McCaffrey, `The UN Convention on the Law of Non-
Navigational Uses of International Watercourses: Prospects and Pitfalls' in Salman Salman
and Laurence Boisson de Chazournes (eds), International Watercourses: Enhancing
Cooperation and Managing Conflict -- Proceedings of a World Bank Seminar (1998).
7 The statement of the principle of equitable utilisation in arts IV to VII of the Helsinki Rules,
above n 1, is as follows:
Article IV
Each Basin State is entitled, within its territory, to a reasonable and equitable share in
the beneficial uses of the waters of an international drainage basin.
Article V
I
What is a reasonable and equitable share within the meaning of Article IV is
to be determined in the light of all the relevant factors in each particular case.
II
Relevant factors which are to be considered include, but are not limited to:
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
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.
...
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III
THE PRINCIPLE OF EQUITABLE UTILISATION
The principle of equitable utilisation requires states to act reasonably and
equitably when dealing with transboundary water resources in their territory. It
requires that the reasonableness of any utilisation is to be determined by
weighing all relevant factors and by comparing the benefit that would follow
from the utilisation with the injury it might inflict on the interests of another
basin state.8
The genius of the principle of equitable utilisation lies in its flexibility
because it prescribes a `reasonableness' test for determining what is lawful or
unlawful conduct in connection with international water resources.
The judgment of the International Court of Justice (`ICJ') in the Gab íkovo-
Nagymaros Project9 also supports the proposition that equitable utilisation is the
basic governing principle of customary international water law.10 The facts of
the dispute are relatively straightforward. In 1997 Hungary and Slovakia
appeared before the ICJ in a dispute over the Danube River. Despite several
attempts at peaceful settlement, the parties could not find a solution to issues
involving the construction of a dam at Gab íkovo-Nagymaros. Hungary refused
to proceed with the project agreed to in an earlier bilateral agreement11 on the
grounds that the work would cause damage not foreseen at the time of the
conclusion of the agreement. Slovakia reacted by diverting the Danube and
implementing a `provisional solution' aimed at providing for itself the benefits
anticipated under the Nagymaros works. In their arguments before the ICJ, each
side took opposing views on the principles of international law applicable to the
development of the Danube. Hungary alleged that Slovakia had violated the rules
of equitable utilisation and `no-harm' by diverting the Danube and implementing

Article VI
A use of category of uses is not entitled to any inherent preference over any other use
or category of uses.
Article VII
A basin State may not be denied the present reasonable use of the waters of an
international drainage basin to reserve for a co-basin State a future use of such
waters.
8 Ibid.
9 Gab íkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7.
10 According to McCaffrey, `The UN Convention on the Law of Non-Navigational Uses of
International Watercourses', above n 6, 20­2, the lack of mention of the `no harm' principle
in the decision suggests that the court viewed equitable utilisation as a more important rule
than the no harm principle. See also, McCaffrey, The Law of International Watercourses,
above n 4, 186­97.The literature on the Gab íkovo-Nagymaros dispute is voluminous. See,
eg, Aaron Schwabach, `Diverting the Danube: The Gabcikovo-Nagymaros Dispute and
International Freshwater Law' (1996) 14 Berkeley Journal of International Law 290; Ida
Bostian, `Flushing the Danube: The World Court's Decision Concerning the Gabcikovo
Dam' (1998) 9 Colorado Journal of International Environmental Law and Policy 401;
Aaron Schwabach, `The United Nations Convention on the Law of Non-Navigational Uses
of International Watercourses, Customary International Law, and the Interests of Developing
Upper Riparians' (1998) 33 Texas International Law Journal 257.
11 Treaty between the Hungarian People's Republic and the Czechoslovak Socialist Republic
Concerning the Construction and Operation of the Gab íkovo-Nagymaros System of Locks,
opened for signature 16 September 1977, 1109 UNTS 235 (entered into force 30 June 1978).
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a `provisional solution'.12 The ICJ rejected the no harm principle and ruled in
favour of Slovakia. In the process, the ICJ reinforced the proposition that the
principle of equitable utilisation continues to be the dominant principle of
international water law.
IV THE COLUMBIA RIVER AND THE EQUITABLE SHARING OF
DOWNSTREAM BENEFITS13
A good example of the principle of equitable utilisation in practice is the
development of mutually beneficial treaties between Canada and the United
States. These two countries share a 6400 kilometre boundary between the main
portions of their provinces and states, and an additional 2400 kilometres between
the Yukon Territory and Alaska.14 The Columbia River is just one of many
international watercourses shared by Canada and the US where Canada is
generally the upstream watercourse state and the US is generally the downstream
watercourse state. Stretching 1952 kilometres, the Columbia River is the fourth
largest river in North America and the Columbia River basin covers 640 000
square kilometres of territory in Canada and the US.15 In recognition of the
importance of cooperating with regard to their many shared water resources,
Canada and the US concluded an agreement in 1909, known as the Boundary
Waters Treaty,16 which, among other things, established an entity called the

12 Patricia Wouters, `Editor's Foreword' in Patricia Wouters (ed), International Water Law:
Selected Writings of Professor Charles B Bourne (1997) xvii­xviii.
13 The advice and assistance of Chris Sanderson QC of Lawson Lundell, Vancouver, Canada is
gratefully acknowledged in regard to the matters discussed in this section. See also Chris
Sanderson, International Energy Exchange: The Columbia River Treaty (1993); Charles
Bourne, `The Columbia River Controversy' (1959) 37 Canadian Bar Review 444.
14 See, eg, Aaron Wolf, `Transboundary Waters: Sharing Benefits, Lessons Learned' (Draft
Thematic Background Paper, International Conference on Freshwater, 2001)
<http://www.water-2001.de/co_doc/transboundary_waters.pdf> at 23 September 2002.
15 Paul Pitzer, `Annex 11: Negotiating the Columbia Basin Treaty, Draft Grand Coulee Dam
and Columbia Basin Project Case Study' (Working Paper, World Commission on Dams,
1999) [A11­2] <http://www.dams.org/docs/studies/us/usfinaldraft_anx11.pdf> at 23
September 2002.
16 Treaty between the United States and Great Britain Relating to Boundary Waters and
Questions Arising between the United States and Canada, opened for signature 11 January
1909, 23 UKTS 1910 (entered into force 5 May 1910). For a history of the Boundary Waters
Treaty, see McCaffrey, The Law of International Watercourses, above n 4, 293­6.
According to the official IJC website the IJC is composed of four commissioners. The
President of the US, on the advice of the US Senate, appoints the American delegation,
while the Governor-in-Council of Canada appoints the Canadian delegation. The
commissioners must follow the Treaty. However, the commissioners are supposed to act
impartially rather than simply represent their respective governments. This independence is
confirmed by art XII of the Treaty, which requires commissioners to make a solemn
declaration in writing that they will faithfully, and impartially, perform their duties under the
Treaty. This independence is further established through immunity from judicial process for
both the Commission and the commissioners in both countries. In addition, the
Commission's decisions are not subject to appeal to the courts of either country. They can,
in practice, be reversed only by an agreement between the two countries. The IJC has three
main functions. First, the IJC can make binding decisions and appoint boards of control to
oversee its decisions and recommendations with respect to `new uses, obstructions or
diversions of boundary waters in either country that affect the natural level or flow of waters
in the other country, [as well as] the construction of any works, dams or other obstructions in
rivers that flow from boundary waters, or rivers that flow across the border, if these projects
will raise the natural level on the other side of the boundary in the upstream country.'
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International Joint Commission (`IJC') to govern their relations. Prior to the
inception of the IJC various ad hoc commissions, established to resolve water-
related issues, were proving to be incapable of handling the growing water
related disputes between the two countries.17 Even the International Waterways
Commission, established in 1905, only dealt with issues on a case-by-case basis.
As the two countries entered into negotiations to establish a permanent body to
replace the International Waterways Commission, the tone of the discussions
was informed by the concerns of each state. The issue of most concern to the US
was sovereignty. The US, while realising the necessity of an agreement to
manage transboundary waters, wanted to ensure that its political independence
was not compromise in the process.18 This was expressed in the US position that
absolute territorial sovereignty must be retained over the waters within each
state's territory.19 It was the view of the US that tributaries should not be
included in the new commission's authority. In contrast, Canada was interested
in establishing an egalitarian relationship with the US.20 Canada was hampered
in its pursuit not only by the relative size and level of development of the two
states at the time, but also because Canadian foreign policy was still the purview
of the United Kingdom. Consequently, negotiations had to be carried out
between Ottawa, Washington and London. Generally, however, Canada wanted
a comprehensive agreement, which would include tributaries, and a commission
with greater authority than former bodies.
The resulting Boundary Waters Treaty is thought to reflect to some extent the
interests of each negotiating state.21 For example, for the purposes of the
Boundary Waters Treaty, `boundary waters' were defined as
the waters from main shore to main shore of the lakes and rivers and connecting
waterways, or the portions thereof, along which the international boundary
between the US and the Dominion of Canada passes, including all bays, arms, and
inlets thereof, but not including tributary waters which in their natural channels
would flow into such lakes, rivers, and waterways, or waters flowing from such

Second, the IJC can investigate and advise the governments on transboundary issues referred
to it. The conclusions and recommendations brought forth from these fact-finding cases are
not legally binding. Third, the IJC can act as an arbiter for disagreements jointly submitted
to it. The US must have approval from the Senate to submit such a case. The IJC is guided
by a number of principles such as: trying to maintain strict impartiality in the performance of
its duties; seeking to achieve consensus wherever possible, both in its own deliberations and
those of its boards or similar bodies; employing joint fact-finding as a foundation for
building consensus and determining appropriate action; affording all parties interested in any
matter before it a convenient opportunity to be heard and promote the engagement of state,
provincial and municipal governments and other authorities in the resolution of these
matters; in environmental matters, affirming the concept of sustainable development, the
ecosystem approach, and the virtual elimination and zero discharge of persistent toxic
substances, while emphasising the importance of a sound scientific basis for its conclusions
and recommendations. The Commission also recognises that it may sometimes be necessary
to adopt a precautionary approach and to act even in the absence of a scientific consensus
where prudence is essential to protect the public welfare. See IJC Website (2002)
<http://www.ijc.org> at 23 September 2002.
17 Wolf, above n 14, 32.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
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lakes, rivers, and waterways, or the waters of rivers flowing across the
boundary.22
Pursuant to the Boundary Waters Treaty, each country reserved the right to
control the use of waters within its jurisdiction while maintaining that boundary
waters were subject to equal and similar rights.23
The regulation and management of the Columbia River first began to receive
serious consideration by the IJC in 1944.24 According to Pitzer, it then took
[t]wenty years, from the mid 1940s through the mid 1960s, for the US and Canada
to identify the best dam sites, calculate the benefits of storage, and negotiate
allocation of the benefits from dams in British Columbia that would regulate the
flow of the Columbia. Understanding the process that led to upstream storage in
Canada requires a detailed look at complicated politics in both the US and
Canada. The Boundary Waters Treaty of 1909 had created an International Joint
Commission [IJC] and gave that body some jurisdiction over the streams that
flowed between the two countries. IJC decisions were not binding, however, and
had to be supported by treaties negotiated between the two countries. On 9 March
1944, the US government referred the matter of increased storage on the Columbia
River to the IJC. The IJC, in turn, created the International Columbia River
Engineering Board composed of two members from each country. The board set
up an Engineering Committee and charged it with the task of obtaining data and
analyzing the situation. Planners realized that increased reservoir storage in
Canada would produce massive benefits in the US. Charles Stewart, Chairman of
the US section of the IJC, stated in 1944, that no water would be backed up on
either side of the border until everyone interested had been heard and that such
action would not be for the sole benefit of `Grand Coulee Dam and other
downstream power sites.' With that in mind, the IJC and its boards and
committees began determining the exact value of those benefits and the fairest
way of crediting to Canada a reasonable share of the resulting wealth.25
The extensive technical studies of the IJC continued until December 1959,
when, at the request of Canada and the US, the IJC promulgated a set of
principles intended to govern any sharing of benefits between Canada and the
US which might arise as result of joint development of the Columbia River.26
In making its various recommendations, the IJC was guided by the basic
precept that its principles should result in both the equitable sharing of the

22 Boundary Waters Treaty, above n 16, preliminary art.
23 A Dan Tarlock, `International Water Allocation, Law of Water Rights and Resources' in A
Dan Tarlock, Law of Water Rights and Resources (2001) §11­14. Should one country cause
the other to suffer damage as a result of a water diversion etc, that country is entitled to the
same rights as a resident of the offending country.
24 For a more complete description of the Columbia River Treaty, below n 31, and its
aftermath, see McCaffrey, The Law of International Watercourses, above n 4, 293­6. See
also Ralph Johnson, `Effect of Existing Uses on the Equitable Apportionment of
International Rivers I: An American View' (1959) 1 University of British Columbia Law
Review 389; Ralph Johnson, `The Columbia Basin' in Albert Garretson (ed), The Law of
International Drainage Basins (1967) 167; Bourne, `The Columbia River Controversy',
above n 13, 444.
25 Pitzer, above n 15, [A11­2].
26 IJC, Report of the International Joint Commission on Principles for Determining and
Apportioning Benefits from Cooperative Use of Storage Waters and Electrical
Interconnection within the Columbia River System (1959).
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downstream benefits attributable to any cooperative undertakings that might take
place, and an advantage to each country as compared to any alternatives that
might be available to them. The IJC further stipulated that power benefits in the
US from upstream storage in Canada should be shared on a substantially equal
basis, provided that an equal split of benefits would result in an advantage to
each country as compared to available alternatives. When an equal split would
not result in an advantage to each country, the countries would then have to
negotiate such other division of benefits as would be equitable to both countries
and make cooperative development feasible.27
The critical acknowledgment underlying the IJC stipulation was that an
international project ought not to proceed unless both countries would benefit.28
However, to the extent that a benefit occurred in one nation and costs were
imposed in another, the solution was not to dispute whether the project should
proceed, but rather to redistribute the benefits so that both countries obtained an
interest in them.29
Another important aspect of the IJC's recommended principles was that the
focus was on gross benefits, which eliminated the difficulties of calculating net
benefits.30 Different countries necessarily assign different values to that which
they view as important, and determining the net benefits and costs of a particular
initiative will often be impossible. However, when both countries have at least
the assurance that they are better off with rather than without an initiative, they
are then in a better position to support that initiative.
Based on these principles, the parties were eventually able to negotiate the
Treaty Relating to Cooperative Development of the Water Resources of the
Columbia River Basin (`Columbia River Treaty').31 The Columbia River Treaty
explicitly recognised that the construction and operation of three treaty projects
in Canada would increase both the useable energy and dependable capacity of
power plants in the US, as well as provide irrigation and flood control benefits in
the US, all of which would not be possible at the same cost without the three
treaty projects.32
In return for building the three Columbia River Treaty projects in Canada, the
Treaty specifically entitled Canada to a lump sum payment for various
downstream (flood control) benefits, as well as one half of the additional power

27 Ibid 49­50; see also Sanderson, above n 13, 10.
28 Sanderson, above n 13, 28.
29 Ibid.
30 According to Pitzer, above n 15, [A11­10], the IJC spent considerable time and money
unsuccessfully trying to factor respective costs into the sharing agreement for downstream
benefits. This `netting' approach proved to be exceedingly complex and difficult. However,
enormous staff time was taken up before this was realised and the approach finally
abandoned.
31 Opened for signature 17 January 1961, United States­Canada, 542 UNTS 244 (entered into
force 16 September 1964); Protocol to the Columbia River Treaty, in Secretary Martin to
Secretary Rusk, `Annex to an Exchange of Notes Dated January 22, 1964 between the
Governments of Canada and the United States Regarding the Columbia River Treaty' [1964]
Department of State Bulletin 202. See also Pitzer, above 15, [A11­7]; Sanderson, above
n 13, 18.
32 Sanderson, above n 13, 25.
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generated by power plants in the US that resulted from storage across the border
in Canada.33
V
DOWNSTREAM BENEFITS34
The widely acknowledged situation with respect to the equitable sharing of
downstream benefits of the Columbia River aptly illustrates both the existence of
a principle of equitable sharing of downstream benefits and its practical
application. However, the Columbia River example is not the only illustration of
a suggested principle of equitable sharing of downstream benefits. There are a
growing number of international agreements which provide for the return, either
in kind or in monetary form, of a share of the benefits received in a state or states
as a result of acts done in another state or states. Some examples include: the
Treaty of Peace with Germany (Treaty of Versailles);35 the Convention and
Statute on the Regime of Navigable Waterways of International Concern;36 the
Agreement Regulating the Use of the Waters of the Kunene River for the
Purposes of Generating Hydraulic Power and of Inundation and Irrigation in
the Mandated Territory of South West Africa;37 the Cunene River Basin
Agreement (South Africa and Portugal);38 the Convention on the Protection of

33 Ibid 15.
34 The advice and assistance of Professors Charles Bourne and Steve McCaffrey and the late
Professor Albert Utton in helping to identify these examples of state practice of the equitable
sharing of downstream benefits is gratefully acknowledged.
35 Opened for signature 28 June 1919, 2 USTS 43 (entered into force 10 January 1920). This
Treaty gave France the exclusive right to use the waters of the Rhine for power production,
subject to France's paying Germany one-half the value of the energy produced.
36 Opened for signature 20 April 1921, 7 LNTS 35 (entered into force 31 October 1922).
Article X suggests the sharing of downstream benefits and even upstream benefits, providing
that where a state is obliged under the Convention to take steps to improve the river or is put
to expense to maintain it for navigation, it is entitled to demand a reasonable contribution to
the costs involved.
37 Opened for signature 1 July 1926, South Africa­Portugal, 70 LNTS 316 (entered into force
1 July 1926). This Agreement gave South Africa the right to build a dam upstream in Angola
and to undertake certain diversion works. Article 12 further provided as follows:
No charge shall be made for the water diverted from the Kunene River for the
purpose of provided means of subsistence for the Native Tribes in the Mandated
Territory; but should it be desired to utilise a portion of the water referred to in
Article six above [one half of the flood water of the river] for any other purposes,
being for the purposes of gain ... South Africa shall give to ... Portugal three
months' written notice of such intention and shall pay, for such portion of the water
so utilised, to that Government such compensation as may be mutually agreed upon.
38 UN Department of Technical Cooperation for Development, Treaties Concerning the
Utilization of International Water Courses for Other Purposes Than Navigation: Africa
(1984). This more recent Treaty between Portugal and South Africa for the Kunene River
(under the name of the Cunene River) sees one watercourse state paying another for benefits
received by it as a result of developments of the watercourse in the other state. Under this
agreement Portugal was to construct the Gove Dam and South Africa agreed `to participate
in the financing of the dam in respect of components forming part of the storage function,
but excluding costs incurred for hydro-power generation purely in the interest of the
Portuguese government'. In return, Portugal agreed not to extract more than fifty per cent of
the resulting regulated flow of the river, and to operate the dam so as to provide a regulated
flow: arts 4.1.3, 4.1.11­4.1.12. The Treaty also provided for the construction and operation
of works for the diversion (by means of pumping water from the Cunene River) for human
and animal requirements in south west Africa and for irrigation. South Africa agreed to pay
for the construction of the works, and for their operation which would be done by the
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the Rhine against Pollution from Chlorides;39 the Treaty on the Lesotho
Highlands Water Project between the Government of the Kingdom of Lesotho
and the Government of the Republic of South Africa;40 the Treaty between the
Hungarian People's Republic and the Czechoslovak Socialist Republic
Concerning the Construction and Operation of the Gab íkovo-Nagymaros
System of Locks41 and the Decree of the Government of Kyrgyzstan.42
These examples confirm that state practice can be invoked in support of an
emerging principle of customary international law regarding the equitable
sharing of downstream benefits where the act that confers the benefit on one
state appears to have been done, or not done, at the request of another state.43

Portuguese authorities. South Africa was also to pay a fixed amount for the ground occupied
and for the flooding caused by these works: art 4.
39 Opened for signature 3 December 1976, France­Netherlands, 16 ILM 265 (1977) (entered
into force 5 July 1985). It provides that the Netherlands is to pay a substantial share of the
cost to France of disposing of waste salts from the Mines de Potasse d'Alsace in ways other
than discharging them into the Rhine. Thus in this example the downstream state pays the
upstream state for the conferral of a benefit (freedom from pollution harm). While not an
upstream `development' case, this is a particularly striking example since it could be argued
that France had a duty to avoid significant pollution harm to the Netherlands irrespective of
Treaty obligations.
40 Opened for signature 24 October 1986 (entered into force 24 October 1986)
<http://www.fao.org/docrep/W7414B/w7414b0w.htm> at 23 September 2002. Pursuant to
this treaty, the downstream state, South Africa, was to pay a substantial share of the cost of
constructing the project in Lesotho in return for the downstream benefits it would receive
from it.
41 Opened for signature 16 September 1977, 1109 UNTS 235 (entered into force 30 June
1978). This Agreement, which gave rise to Gab íkovo-Nagymaros Project (Hungary v
Slovakia) (Merits) [1997] ICJ Rep 7, provided for the development of a dam and
hydroelectricity plant that was to produce the bulk of the electricity under the Treaty located
on a bypass canal wholly within Slovakia. The majority of Danube water is diverted into that
canal then rejoins the bed of the Danube, which forms the boundary between the two states.
Under the Treaty, Hungary was to receive power from that plant, as well as flood control
benefits -- both arguably downstream benefits. For a more complete description and
analysis of the case, see McCaffrey, The Law of International Watercourses (2001) 186­97.
42 A recent decree of the Government of Kyrgyzstan reflecting a principle of equitable sharing
of downstream benefits stated that:
in the Field of Use of Water Resources of Rivers Having Their Source in the
Territory of Kyrgysztan and Flowing into the Territory of Neighbouring Republics
and in pledging to collaborate with neighbouring states in the rational use of river
water resources, Kyrgysztan favours the principle of payments by its downstream
neighbours for the use of water resources flowing from it. Whereas this does not
imply that the country will automatically claim compensation for the river water
flowing past its borders, it nonetheless signals that such payments are regarded by the
country's leadership as a legitimate matter for negotiations. In this connection, it will
be recalled that Kyrgysztan has succeeded to a series of agreements dating to Soviet
Union times providing for the sharing of the waters of rivers among the republics of
Kazakhstan, Kyrgysztan, Tajikistan, Turkmenistan, and Uzbekistan. These
agreements were reaffirmed in the Alma Ata Agreement of 18 February 1992.
See Stefano Burchi, `International Rivers and Lakes/Groundwater' (1997) 8 Yearbook of
International Environmental Law 187, 187­8.
43 See McCaffrey, The Law of International Watercourses (2001) 264, where the author, while
acknowledging that `it is not uncommon for some form of compensation (eg sharing electric
power) to be part of an overall package of equitable apportionment of the uses and benefits
of an international water-course', goes on to add the important caveat that
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This raises a number of questions: first, is there support for a wider proposition
that a state is obliged to share benefits that it receives from the acts or omissions
of another state that it has not asked for or to which it has not agreed? Second,
does the obligation to share benefits exist under customary international law,
even when these benefits have not been solicited or agreed to?44 Third, if
benefits are to be shared equitably, why should it matter whether the beneficiary
sought them or is simply receiving them without asking? Fourth, would a failure
to share windfall benefits constitute a case of `unjust enrichment'? Fifth, is there
anything to distinguish a case in which a state has asked for a benefit from one in
which it has not asked? Sixth, would equity in the latter case dictate that the
paying state not pay as much as it would have to if the other state had
specifically requested the benefit? Finally, might it be possible to apply the
principle of equitable sharing of downstream benefits to help turn historical
adversaries into partners? It is this latter and perhaps most important question to
which this paper now turns by examining two case studies: the Karnali River
(Nepal/India)
and
the
Mekong
River
(China/Myanmar/Thailand/Cambodia/Laos/Vietnam).
VI THE KARNALI RIVER (NEPAL/INDIA)45
Nepal is a land-locked developing country considered to have enormous water
resource development potential.46 The Karnali is just one of a number of major
international rivers that Nepal shares with India to the south and China to the
north. Nepal and India have been long time adversaries over the sharing of
downstream benefits that might result from the development of water resource
projects on rivers in Nepal that flow into India.47 Does the principle of equitable

on the other hand, modern international law does not accept the notion that seems to
underlie such a claim for compensation, namely, that a state `owns' the waters of an
international watercourse that are, for the moment, situated in its territory, and is free
to do with them as it pleases, regardless of the consequences for other riparian states.
On the contrary, upper riparians are under an obligation not to prevent such waters
from flowing to a lower riparian country. The only interference with such flow that
would be permissible are those that would be equitable and reasonable in the context
of the states' fluvial relations.
44 See generally Paisley and McDaniels, above n 4, 111.
45 The advice and assistance of Dr Kul Bhurtel, Scott Ferguson and Dr Vic Galay of Northwest
Hydraulic Consultants in Vancouver, Canada, in helping to prepare this section is gratefully
acknowledged.
46 For an introduction to Nepal and water resource development, see Dipak Gyawali, Water in
Nepal: An Interdisciplinary Look at Resource Uncertainties, Evolving Problems and Future
Prospects (1989); Surya Subedi, `Hydro-Diplomacy in South Asia: The Conclusion of the
Mahakali and Ganges River Treaties' (1999) 93 American Journal of International Law 953;
Jagadish Pokharel, Environmental Resources: Negotiation between Unequal Powers (1996);
S Pun, `Sharing of the Ganges Waters -- The Writing's on the Wall' (1999) 10 WECS
Bulletin 32; Hans Schreier et al, Sedimentation of the Kulekhani Reservoir: A Case Study of
the Importance of Sediment Dynamics in the Nepalese Himilayas (1999) (CD ROM) (copy
on file with author); Prem Thapa, `Water-Led Development in Nepal: Myths, Limitations
and Rational Concerns' (1997) 5 Water Nepal 35; Dipak Gyawali and Ajaya Dixit,
`Mahakali Impasse and Indo-Nepal Water Conflict' (1998) 34(9) Economic and Political
Weekly 1.
47 Subedi, above n 46, 954; Verghese, above n 2, 31­5.
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sharing of downstream benefits have a possible role to play in turning these
historical adversaries into partners?
This analysis begins with an introduction to Nepal and an examination of
factors that have historically challenged water resource development in Nepal.
Nepal has a total area of 147 181 square kilometres of which about 83 per cent
are mountains and 17 per cent are lowlands. The mountainous region is divisible
into three distinct ecological zones: the Terai Plain (an extension of the Gangetic
Plain of India); the Hills (the foothills of the Himalayas), ranging in height from
500 metres to 4000 metres; and the Himalayan mountains, ranging in height to
above 8000 metres.48 Eight of the 10 highest mountains in the world are located
in Nepal.
By most standard economic measurements, Nepal is classified as one of the
least developed countries in the world, with a per capita income of less than
US$250 per annum.49 According to World Bank data, overall economic growth
has decelerated steadily in the past few years to an estimated 1.9 per cent of
gross domestic product in the fiscal year 1998.50 This deceleration reflects,
among other factors, weather related setbacks to agriculture as well as a
slowdown in non-agricultural growth.51 Private investment and activity levels
have also declined, in part due to lack of business confidence associated with the
political environment, problems faced by traditional export industries (such as
carpets), weak domestic demand, and uncertainties regarding global economic
prospects, particularly general developments in India and East Asia.52
The interaction of the monsoon weather with the Himalayan Mountains
dominates the hydrology of Nepal. Heavy rains from June until September
characterise the monsoon pattern, coupled with dry weather from October to
May. The average run-off from all of Nepal's rivers is estimated to total 224 000
million cubic metres.53 The four largest rivers in Nepal, the Mahakali, the
Karnali, the Gandak and the Kosi, together account for more than two thirds of
the total annual water discharge.54 The hydroelectricity development potential in
Nepal is thought to be about 83 000 megawatts.55 However, Nepal currently has
only about 261.8 megawatts installed capacity of hydropower and an additional
57.1 megawatts of installed capacity for thermal power.56 Presently, hydropower
accounts for just one per cent of total energy consumption in Nepal and only
about nine per cent of the population has access to electricity.57

48 Schreier et al, above n 46.
49 The World Bank, Nepal Development Forum: Economic Update 2002 (2002)
<http://lnweb18.worldbank.org/SAR/sa.nsf/Attachments/rpt/$File/econnp.doc>
at
23
September 2002.
50 Ibid.
51 Ibid.
52 Ibid.
53 Gyawali, above n 46, 93­101.
54 Ibid.
55 Subedi, above n 46, 954. See also James Clad, `GDP Set to Slump in Wake of Transit
Dispute: Gasping for Breath', Far Eastern Economic Review (Hong Kong), 8 March 1990,
26.
56 Clad, above n 55, 26.
57 Verghese, above n 2, 37­8.
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In addition to hydropower generation, the potential benefits to Nepal from
water resource development include water supply for irrigation and domestic
use, flood control, sedimentation control, navigation, fisheries and recreational
benefits.58 However, there is also a wide range of potentially negative social and
environmental repercussions that may be associated with water resource
developments in Nepal. These include the potentially negative impact of water
resource development on the aquatic environment, local populations, inundation
of forests and the movement of alluvium.59 Similar potential costs and benefits
could also accrue in India.60 In addition, social, environmental and political
conditions could prove challenging to water resource development in Nepal.61
As if possible cooperation between Nepal and India regarding water resource
development were not already sufficiently challenging, the two countries have
also entered into several controversial agreements regarding a number of the
international rivers that they share.62 The three international watercourses shared
between Nepal and India which are currently governed by agreements are the
Kosi, the Gandak and the Mahakali. The Kosi and the Gandak are international
rivers. The Mahakali River is a boundary river, which forms part of the border
between India and Nepal on Nepal's western flank.
The Agreement between the Government of India and the Government of
Nepal on the Kosi Project (`Kosi Agreement')63 was signed in 1954 and revised
in 1966, and is valid for 199 years. The primary purpose of the Kosi Agreement
is to enable India to build control structures in Nepal that provide flood control
to Bihar State in India. The Kosi Development Project that grew out of the Kosi
Agreement was planned, designed and constructed by India. The Kosi Agreement
has had a mixed reception in Nepal.64 On the one hand, it confirms Nepal's right
to substantial future developments in the Kosi River basin, even though Nepal is
yet to exercise those rights.65 On the other hand, it has been suggested that Nepal
may have so far derived relatively little benefit from the agreement. More

58 Schreier et al, above n 46.
59 Ibid.
60 Ibid; Thapa, above n 46, 44­8.
61 From an environmental perspective the following factors challenge water resource
development in Nepal:
The stream system is relatively poorly studied;
Nepal's rivers carve through the highest relief in the world;
The rainfall distribution is highly seasonal;
The bedrock geology is highly fractured and uplifting at a relatively rapid rate;
The current climatic, hydromatic and sedimentation monitoring network is relatively
inadequate for modeling and prediction;
The surface configuration is changing rapidly due to rapid population growth,
increased agriculture intensification, expansion into marginal lands and degradation
of forests and grasslands;
The interactions between rainfall events, topography, geology, terrain stability, land
use and stream response are generally poorly documented.
See Schreier et al, above n 46.
62 Subedi, above n 46, 954.
63 Opened for signature 25 April 1954, United Nations Legislative Series, Legislative Texts
and Treaty Provisions Concerning the Utilization of International Rivers for Other Purposes
than Navigation (1963) 290, UN Doc ST/LEG/SER.B/12 (entered into force 25 April 1954).
64 Verghese, above n 2, 31­5.
65 Ibid.
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specifically, it has been suggested that the expected benefits to Nepal from the
Chatra canal have not materialised, and the westward shifting of the Kosi has
damaged land and agricultural crops in the Saptari district of Nepal.66 Also, the
promised powerhouse of 20 megawatt capacity using the canal head could not be
made operational.67
The Agreement between His Majesty's Government of Nepal and the
Government of India on the Gandak Irrigation and Power Project (`Gandak
Agreement') was signed by Nepal and India in 1959 and revised in 1964.68 The
primary purpose of the Gandak Agreement was the construction of structures in
India and in Nepal to facilitate irrigation, primarily in India.69 The 1964
amendments deleted a schedule of water requirements that was a part of the
original 1959 agreement, and confirmed that Nepal has the right to withdraw
water from the Gandak water basin for irrigation or any other purpose, except for
inter-basin transfers in the lean months of February to April. Unlike the Kosi
Agreement, the Gandak Agreement appears to have no expiry date. However, it
too has had a mixed reception.70 India believes that Nepal was given numerous
benefits at no cost, yet planned benefits of irrigation and power generation in
Nepal have not been fully realised because of poor maintenance of the canal,
which is located mainly in India. Also, the Narayani Irrigation Project in Nepal
is in a precarious situation on account of Nepal's water supply from the Don
Branch Canal in India being irregular and less than the agreed volume.71
The Agreement between the Government of the Republic of India and His
Majesty's Government of Nepal Concerning the Integrated Development of the
Mahakali River Including Sarada Barrage, Tanakpur Barrage and Pancheshwar
Project (`Mahakali Treaty')72 was signed in 1996 and is the most recent
agreement between Nepal and India. It has a term of 75 years and establishes a
long-term discharge rate focusing on the utilisation of waters and the integrated
development of the Mahakali River, including the Sarada Barrage, Tanakpur
Barrage and Pancheshwar Multipurpose Dam Project.73 The primary purpose of
the Sarada and the Tanakpur Barrages, both located in India, is to facilitate
irrigation in both India and Nepal. Tanakpur also has a 120 megawatt capacity
hydropower generating station installed, 70 megawatt hours of which, according
to the agreement, are supposed to be given to Nepal free of charge. India is also
supposed to provide the necessary power transmission line to Nepal. The size of
the generating component of the Pancheshwar Multipurpose Dam Project is
projected to be 6480 megawatts, consisting of two power sources of equal
capacity on both sides of the river.74 Article 3 of the Mahakali Treaty states that

66 Ibid.
67 Pokharel, above n 46, 35­48.
68 Opened for signature 4 December 1959, India Bilateral Treaties and Agreements (1958­60)
vol 3, 264 (entered into force 4 December 1959).
69 Pokharel, above n 46, 43­4.
70 Ibid 37­48.
71 Ibid.
72 Opened for signature 12 February 1996, 36 ILM 531 (1997) (entered into force 12 February
1996).
73 Philippe Sands, `Introductory Note' in Treaty on Sharing of the Ganges Waters at Farakka,
opened for signature 12 December 1996, 36 ILM 519 (1997).
74 Pun, above n 46, 33.
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`[a]ll benefits accruing to both parties with the development of the
(Pancheshwar) Project in the forms of power, irrigation, flood control etc, shall
be assessed' and that `[t]he costs of the project shall be borne by the Parties in
proportion to benefits accruing to them.' Article 3(a) of the Exchange of Letters
between the Prime Ministers of Nepal and India states that `[i]rrigation benefit
shall be assessed on the basis of incremental and additional benefits due to
augmentation of river flows and flood control benefit shall be assessed on the
basis of the value of works saved and damages avoided.'75
The Mahakali Treaty has also had a mixed reception in Nepal.76 It has been
praised as breaking the ice in the hitherto uncomfortable relations between India
and Nepal on water related matters, and has the potential to inspire collaboration
on water projects if implemented to the satisfaction of both parties.77 However,
controversy continues regarding the interpretation of the Mahakali Treaty,
particularly the interpretation of article 3.78 This has mainly focused on the
interpretation of the term `existing consumptive use', and the possible exclusion
of the amount of water already available and used by the parties from the
definition of their equal entitlement to the waters of the Mahakali.79
Despite sporadic attempts by both India and Nepal to negotiate, the fourth
major international watercourse, the Karnali, has not yet been the subject of an
agreement between the parties. This situation is unlikely to be resolved anytime
soon, in part because India and Nepal have been unable to agree as to how they
might share downstream benefits.
VII THE MEKONG RIVER
(CHINA/MYANMAR/THAILAND/CAMBODIA/LAOS/VIETNAM)80
The Mekong River originates high on the Tibetan Plateau, and makes its way
through six countries: China, Myanmar, Laos, Thailand, Cambodia and Vietnam,
before reaching the South China Sea.81 At 4800 kilometres, the Mekong River
generally ranks twelfth in the world in terms of length, and eighth in terms of

75 Letter from His Excellency Mr Sher Bahadur Deuba, Prime Minister of Nepal, to His
Excellency Mr P V Narasimha Rao, Prime Minister of India, 12 February 1996; Letter from
His Excellency Mr P V Narasimha Rao, Prime Minister of India, to His Excellency Mr Sher
Bahadur Deuba, Prime Minister of Nepal, 12 February 1996.
76 Subedi, above n 46, 956­7.
77 Ibid 962.
78 Ibid 956.
79 Ibid 956­7.
80 The advice and assistance of Sokhem Pech, Chaiyuth Sukhsri and Dr George Radosevich in
helping to prepare this section is gratefully acknowledged.
81 Regarding the Mekong, see generally, Greg Browder and Leonard Ortolano, `The Evolution
of an International Water Resources Management Regime in the Mekong River Basin'
(2000) 40 Natural Resources Journal 499; Philip Hirsch, `Beyond the Nation State: Natural
Resource Conflict and "National Interest" in Mekong Hydropower Development' (1999) 29
Golden Gate University Law Review 399; Nancy Nelson, `Water Allocation' [1996]
Colorado Journal of International Environmental Law and Policy 120; Brian Shanahan,
`Recent Development in International Environmental Law: Agreement for the Sustainable
Development of the Mekong River Basin Cambodia, Laos, Thailand, Vietnam -- Signed,
April 5, 1995; Entered into Force upon Signing' (1996) 8 Georgetown International
Environmental Law Review 496; Patricia Wouters, `An Assessment of Recent Developments
in International Watercourse Law through the Prism of the Substantive Rules Governing Use
Allocation' (1996) 36 Natural Resources Journal 417.
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average annual run-off.82 The flow in the Mekong varies with the tropical
monsoon climate. The flows begin to increase at the onset of the wet season in
May, peaking in August or September, and decreasing rapidly until December.
The flows recede slowly during the annual dry period from December to their
lowest levels in April. An enormous volume of water flows through the Mekong
Basin in the wet season, resulting in extensive flooding. The floodwaters support
a productive and diverse freshwater ecosystem, but also result in loss of human
life and damage to crops and structures. During the dry season, a dramatic
reduction of flow leads to water shortages for domestic and agricultural use, and
limits navigation. The coastal plain of the basin constantly suffers from an
intrusion of seawater.
The Mekong Basin's water resources have the ability to support economic
growth through irrigation, hydropower, navigation, water supply and tourism.83
Equitable sharing of the water resources and sustainable development of the
natural resources in the basin becomes most critical for each country during the
dry season.84 Laos relies heavily on river transport, and the reduction of dry
season flows could adversely affect navigation. Cambodia has long-term
potential for increasing its irrigated agriculture. Over the decades, Vietnam and
Thailand have developed extensive irrigation systems that currently face dry
season water constraints. Vietnam makes use of dry season flows for seawater
repulsion and for irrigation. Thailand has recently been studying options for
diverting water from the Mekong, and for inter-basin diversion from Thai
tributaries to the Mekong.
With respect to hydropower, the World Bank sees benefit in such projects
because of their ability to store wet season flows in order to generate power
during the dry season.85 Hydropower development in the Mekong Basin has
been gaining momentum and the question of how to share the consequential
additional dry season flow is of key interest to the Mekong's downstream
countries. Currently, there are only 500 megawatts of installed capacity in the
Lower Mekong and 1500 megawatts along the Chinese portion of the river;
however China is constructing several more hydropower projects. Laos also has
plans to construct a number of medium sized hydropower projects on Lao
tributaries to the Mekong and both China and Laos would like to export power to
Thailand. Options for creating a regional power grid are also being studied.
However, recent analysis by Aviva Imhof of the International Rivers Network, a

82 Guangwei Huang and Nobuyuki Tamai, `Application of MIKE 11 to the Lower Mekong
River' (Paper presented at the 3rd DHI Software Conference and DHI Software Courses,
Helsingřr, 7 June 1999) [1] <http://www.dhi.dk/softcon/papers/013/DHI.html> at 23
September 2002.
83 Shanahan, above n 81, 497; Hirsch, above n 81, 400.
84 Browder and Ortolano, above n 81, 529­31.
85 Huang and Tamai, above n 82, [1].
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California based conservation group, suggests the market for hydropower has
slowed due to the Asian economic crisis.86
Attempts to cooperate on the Mekong have a long history.87 The Committee
for Coordination of Investigations of the Lower Mekong Basin (`Mekong
Committee') was established in 1957 with four members (Cambodia, Laos,
Thailand and Vietnam) under the umbrella of the Economic Commission for
Asia and the Far East, the predecessor of the Economic and Social Commission
for Asia and the Pacific.88 From 1978 to April 1995 the Committee was known
as the Interim Mekong Committee (`IMC') due to the absence of Cambodia from
the Committee. In 1991 Cambodia submitted a request to rejoin the Committee.
Subsequently, the recent and rapid economic and environmental changes in all
four countries indicated the need for a new organisation with an expanded
mandate to cope with the countries' requirements. In response to this new
context, the Mekong Working Group (`MWG'), consisting of representatives
from the four countries, was formed to prepare for the establishment of a new
Mekong cooperation framework. The MWG, under the direction of the UN
Development Programme, initiated the Draft Agreement on Cooperation for the
Sustainable Development of the Mekong River Basin (`Mekong Agreement')89 at
its final meeting in November 1994. The Mekong Agreement immediately
established the Mekong River Commission (`MRC'), replacing the Mekong
Committee and the subsequent IMC.90
As an intergovernmental organisation, the MRC has three permanent bodies:
the Council (ministerial and cabinet level), which makes policies and decisions;
the Joint Committee (department head level), which implements policies and
decisions; and the Secretariat, which renders technical and administrative
services.91 The MRC's mandate is:
To promote and co-ordinate sustainable management and development of water
and related resources for the countries' mutual benefit and the people's well-being

86 Aviva Imhof, International Rivers Network (Address delivered to National Laotian-
American Symposium on US-Laos, 23 May 2002) [8] <http://www.laotianlink.com/
trade/imhof.htm> at 23 September 2002. See also Environment News Service, Four Mekong
River Basin Governments Funded to Cooperate (2000) <http://ens.lycos.com/ens/feb2000/
2000L-02-14-05.html> at 23 September 2002, where Imhof is reported as saying that `the
Electricity Generating Authority of Thailand [(`EGAT')] will defer purchases of electricity
from several multi-billion dollar projects in Laos, citing the slowdown in Thailand's power
demand. Last June, EGAT announced that the commissioning dates of four privately funded
hydropower projects Nam Theun 2, Xe Pian-Xe Namnoy, Nam Ngum 2 and Nam Ngum 3
will be postponed by two years, to 2006.'
87 See, eg, Oxfam Community Aid Abroad, `Hydrodevelopment on the Mekong' (Briefing
paper No 22, December 1998) [1] <http://www.caa.org.au/publications/briefing/
mekong_hydro/index.html> at 23 September 2002.
88 Statute of the Committee for Co-Ordination of Investigations of the Lower Mekong Basin
Established by the Governments of Cambodia, Laos, Thailand and the Republic of Viet-Nam
in Response to the Decision Taken by the United Nations Economic Commission for Asia
and the Far East, opened for signature 31 October 1957, United Nations Legislative Series,
Legislative Texts and Treaty Provisions Concerning the Utilization of International Rivers
for other Purposes than Navigation (1963) 267, UN Doc ST/LEG/SER.B/12.
89 Opened for signature 5 April 1995, 34 ILM 864 (1995) (entered into force 5 April 1995).
90 Ibid.
91 International Monetary Fund, Mekong River Commission: Establishment and Functions
(2002) <http://www.imf.org/external/np/sec/decdo/mrc.htm> at 23 September 2002.
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by implementing strategic programmes and activities and providing scientific
information and policy advice.92
The four members agree to cooperate in all fields of sustainable development,
utilisation, management and conservation of the water and related resources of
the Mekong Basin, including, but not limited to, irrigation, hydropower,
navigation, flood control, fisheries, timber floating, recreation and tourism.
These activities should be undertaken in such a manner as to optimise the
multiple-use and mutual benefits of all riparians and minimise the harmful
effects that might result from natural occurrences and synthetic activities.93
The key to reaching agreement was the need to find acceptable language that
provided both a sense of good faith and cooperation, and the assurance that no
party would be disadvantaged under its provisions in light of the doctrine of
sovereign equality.94
Recently, efforts to promote sustainable water management in the Mekong
Basin and protection of its environment, aquatic life and ecological balance
received a major boost in the form of a US$11 million influx of funding from the
Global Environment Facility.95 The project aims to bring the four downstream
nations together for improved and sustainable basin management. The Water
Utilization Project, funded by the grant, aims to support the MRC in developing
an integrated and comprehensive basin hydrologic modelling package, a
functional and integrated knowledge base on water and related resources, and to
use these tools to establish `rules' -- one of MRC's five major goals. The rules,
or obligations, of the member states will establish guidelines for water utilisation
and ecological protection for sensitive ecological systems including wetlands
and flooded forests. The grant will support MRC and the member states in
ensuring that development of the water resources is carried out in a sustainable
manner that preserves the environment.96

92 Ibid.
93 Ibid.
94 Letter from George Radosevich, Former Senior Legal Advisor, Mekong Working Group
UNDP to Richard Paisley, 14 January 2001 (copy on file with author).
95 Environment News Service, above n 86.
96 A significant step forward occurred on 1 November 2001 in Bangkok: Cabinet ministers
from the member countries of the Council of the MRC, committed their countries to
exchanging data and information crucial for sustainable development of the Mekong Basin.
The agreement was the first of a series of joint decisions that the member countries
(Cambodia, Laos, Thailand and Vietnam) will adopt over the next five years regarding water
utilisation. The data to be shared includes `topography, water and other natural resources,
agriculture,
navigation,
transport,
flood
management
and
mitigation,
urbanization/industrialization,
infrastructure,
environment/ecology,
administrative
boundaries, socio-economic status and tourism'. The agreement authorises the MRC
Secretariat (based in Phnom Penh) to `establish technical standards and guidelines to ensure
that data can be compared across countries and from year to year but also to ensure progress
of the Basin Development Plan.' In the coming years the MRC Council will
consider preliminary terms for notifying and consulting each other on the use of the
Mekong's waters and developments that could impact the river [in 2002] ... decide
on the final form for notification and consultation procedures, and also on the form
for the monitoring of existing water use [in 2003] ... decide on rules for maintenance
of water flows [in 2004] and ... [decide] on rules for maintaining water quality [in
2005.]
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Constructing a system for coordinating water resource development activities
and allocating dry season water, while protecting the environment and
maintaining friendly relations among member states, is likely to be a continuing
challenge for the MRC. This raises the issue of what role, if any, there might be
for an equitable sharing of downstream benefits in order to promote trust and
cooperation in the region.97
VIII TURNING ADVERSARIES INTO PARTNERS
Can the experiences of the equitable sharing of downstream benefits on the
Columbia River and elsewhere help turn historical adversaries into potential
partners in situations like the Karnali (Nepal/India) and the Mekong
(China/Myanmar/Laos/Thailand/Cambodia/Vietnam) rivers? Is it realistic to
expect that relations between upstream and downstream states will ever be
completely harmonious? In the case of India and Nepal, the reasons for this
disharmony may be found in the vast differences between them in terms of
geography, population size and level of economic development. Compared to
Nepal, India is large, powerful and relatively developed. India has particularly
pressing demands for water supply for irrigation and industrial purposes. India
also has a compelling need for flood control and serious demand for electrical
energy. Nepal is a comparatively small and weak state. However, Nepal also has
a need for economic betterment coupled with an enormous potential for
hydropower development, flood control and irrigation that could be of benefit to
both Nepal and India.
In the case of the Mekong, there are also vast differences between the four
lower Mekong countries in terms of geography, population size and level of
economic development. Thailand and Vietnam, compared to Laos and
Cambodia, are more powerful and relatively more developed. Thailand is
upstream of the other three lower riparians, and has interests in hydropower and
reservoirs, the development on water and sediment, irrigation development,
water availability, water quality, land use changes and forestry, and impacts on
hydrological response. Laos has interests in hydropower potential, irrigation and
land use, and forestry changes. Cambodia has interests in hydropower
development, possible development of fish migration and potential for increased
irrigation. Vietnam's interests include flood control. China and Myanmar also
have a wide range of interests with regard to the Mekong.
What are the challenges and opportunities brought forth by these two case
studies, and what role, if any, might international law in general, and the
equitable sharing of downstream benefits in particular, play in helping to turn
adversaries into partners?
First, both upstream and downstream states generally have the potential to
derive benefit from the rational and equitable utilisation of shared international
watercourses through the rules of international law. These rules require
international watercourse states to cooperate with each other, and provide a

Ann Lund, Mekong River Commission, Lower Mekong Countries Agree to Share Crucial
Data (Press Release, No 12/01, 1 November 2001) [1] <http://www.mrcmekong.org/media/
press2001/press012.htm> at 23 September 2002.
97 Browder and Ortolano, above n 81, 531.
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framework that promotes the peaceful settlement of disputes.98 Clearly,
developing countries need to be shrewd negotiators, as simply having
international law on their side is unlikely to get them very far in negotiations
with significantly more powerful states. For example, in the Mekong, both
upstream and downstream states have the potential to derive benefit from the
rational and equitable utilisation of shared international watercourses if they
comply with international law. A similar situation exists with regard to the
Karnali River between Nepal and India. For the system to work in practice, it
will be necessary for downstream states to persuade upstream states of the
tangible benefits of cooperation. The equitable sharing of downstream benefits is
one way of accomplishing this.
Second, a proper understanding of the legal issues involved in the
development of international watercourses, as well as the social, political,
economic and environmental implications of proposed actions, is essential for
the protection of legitimate interests. In particular, an appreciation of the
importance of the legal dimension to the benefits that accrue downstream from
developments in an upstream state is crucial. The identification of these benefits
can be difficult, and precise calculations complex. However, for upstream states,
these benefits can be substantial and the effort to grasp the substance of the
principle of equitable sharing of downstream benefits exceedingly worthwhile.99
The situation between Nepal and India regarding the Karnali River is illustrative
of this point. There are major potential downstream benefits to India from a
project on the Karnali River involving the construction of works upstream in
Nepal. These benefits include increased river flow during the dry season through
regulated release to match the demand pattern for irrigation water, flood
moderation, the availability of a non-polluting renewable energy source and the
potential for inland water transport.100 To ensure that they are adequately and
properly compensated for the downstream benefits they confer on their basin
neighbours, and to achieve their overall objective of poverty alleviation through
sustainable development, developing countries like Nepal must strongly and
articulately advance their entitlement to such benefits. Similarly, the
implementation of the Mekong Agreement will take strong political commitment
from all member states and the participation and support of stakeholders in the
basin and external parties.
Third, before striving for political agreement, there is a compelling case for
states to begin by building trust and cooperation through technical cooperation
on matters such as the calculation of downstream benefits. The Karnali and the
Mekong situations are again demonstrative. Historically, a key stumbling block
to an upstream project on the Karnali River in Nepal seems to have been that the
Indian scientists and the Nepalese consultants who have studied the Karnali
River basin have been unable to agree on a number of matters, including
assumptions about water flows and the proposed height of any dam or other

98 UN Watercourses Convention, above n 1.
99 The scope for trade-offs or side deals regarding these downstream benefits is also wide and
varied and could include transit facilities, trade preferences, assistance to develop energy
intensive industries with assured market access, irrigation facilities, extension of rail heads
or road heads, and navigation routes to the sea: see Verghese, above n 2, 125­6.
100 Verghese, above n 2, 46.
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structures.101 This in turn has led to different estimates of capacity to generate
power and a different unit cost of power, as well as an overall inability to agree
on the scope and magnitude of downstream benefits.102 Such differences among
competing groups of scientists will likely never be resolved simply by gathering
more data. Rather, understandings will have to be reached regarding the
assumptions both groups of scientists are relying upon before downstream
benefits can be calculated with any certainty and further progress made.
Similarly in the case of the Mekong, it will likely be necessary to reach an
understanding regarding the assumptions of competing groups of scientists and
engineers before dry season flows can be agreed upon and downstream benefits
can be calculated with any certainty. Perhaps not surprisingly, a similar situation
initially occurred regarding the Columbia River. The subsequent agreement
between the US and Canada appears to have only been made possible after the
parties were first able to build trust and understanding at the technical level,
leading to eventual agreement regarding the equitable sharing of downstream
benefits.103
For all of these reasons, sovereign nations sharing international watercourses
should take heed of the emerging principle of equitable sharing of downstream
benefits as one possible means of helping to turn historical adversaries into
partners.

101 Ibid 52.
102 Ibid 52­3.
103 See also Eyal Benvenisti, `Collective Action in the Utilization of Shared Freshwater: The
Challenges of International Water Resources Law' (1996) 90 American Journal of
International Law 384, 402 Benvenisti states that `[w]ith the shared language of technical
expertise, political constraints may be sidestepped and well-founded decisions more easily
reached'. Benvenisti cites as authority the Agreement between the Government of the
Republic of Namibia and the Government of the Republic of South Africa on the
Establishment of a Permanent Water Commission, opened for signature 14 September 1992,
32 ILM 1147 (1993) (entered into force 14 September 1992) which established a joint
commission to serve as a technical adviser to the States Parties by, inter alia, gathering data
and recommending criteria to be adopted in the allocation and utilisation of common water
resources.
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g
appendices
appendix g
Dante A. Caponera, "The Role of Customary International Water Law," in Water Resources
Policy for Asia 365, 36768, 372, 38081 (M. Ali, G. Radosevich & A. Khan eds., 1985).
Role of Custom in International Water Resource Law
General principles and rules of customary international law of fresh water resources play a very
important role when there is no agreement governing the relations of states sharing an international
river, lake, or drainage basin. In fact, they also play an important role when such agreement exists.
When an international river agreement is recorded in writing, problems of interpretation of general clauses,
of reservations, or of ambiguous provisions may arise for which the treaty does not provide a solution. In the
practice of applying specific treaty provisions, recourse may thus be necessary to general principles underlying
the treaty, or rules which are extraneous to the operative text of the treaty. Questions may also arise as
to whether an agreement ever came into force or, indeed, is still in force. Here, rules of international law
regulating the formulation, modification, termination, and construction of treaties must be brought into play.
More important still from the standpoint of customary rules of international water resources law,
states sharing an international river or drainage basin may be confronted with problems which are
beyond the reach of existing agreements among them. Most international "river treaties" have tended,
and will probably tend, to deal only with certain water use or management issues. As the utilization
of the waters of international rivers or drainage basins increases in quantity and complexity, however,
the rules agreed to in the "river treaties" in force may become inadequate or simply insufficient. In the
absence of treaty coverage on such matters, recourse must be made to the unwritten rules, if any exist,
governing the development, conservation, and use of shared rivers and drainage basins.
The important point is that any international drainage basin treaty is not something standing alone,
but is supported by, limited by, and tested against it set of general international law standards, the
content and the validity of which are not determined by the agreement in question.
The conventional law of any international drainage basin can be effectively applied only with the aid
of principles and rules drawn from the larger international legal system, including any sub system of
the region or basin community.
Finally, for those international streams without even a partial treaty regime with respect to water
use, there is no immediate alternative but to fall back on the applicable rules of customary
international law.
evolution of customary rules
The integrating tendencies which call for more efficient use of water within the national borders
operate also within the politically divided basin. Here the pull of geographical unity has been
reinforced by the realization that damage caused by a beneficial use or a harmful effect of water does
riot stop at the political boundary. The steadily, though slowly, growing capacity to inflict damage
at ever-increasing distances through water use and exploitation has forced a cooperation between
co-basin states and may eventually lead to the obliteration of differences between the rules that
govern water use and exploitation within state borders, and those that pertain to the transfrontier
effects of such use.
***
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suMMary sTaTeMenT Of key PrIncIPles
The present state of general international law on shared water resources development, conservation,
and use can be summed up by the three key principles as follows:
1. Duty Not to Cause Substantial Injury.
States sharing an international watercourse or basin are under obligation not to cause each
other substantial injury, in regard to both water quantity and quality aspects. This principle
stems from the broader proposition that a state may not use or allow to use its territory in
such a way that harm is caused to the territory or interests of another state. The effect or harm,
however, must be appreciable, that is, it must have an impact of some consequence in order
to constitute transgression of an interest protected at international law. The complementary
doctrine of good neighbourship, in fact, requires states to tolerate inconsequential, or minor
interferences.
2. Right to an Equitable and Reasonable Share in the Utilization of the Waters of an
International Watercourse or Basin.
Subject to the overreaching principle mentioned above, states sharing an international
watercourse or basin have the right to use the waters therein. This right being an attribute
of sovereignty, each sharing state's own right is equal to the right of the other sharing states.
When the circumstances are such that all the sharing states' equal rights cannot be satisfied to
their full extent, some adjustment or accommodation is necessary. In the absence of specific
conventional rules, such adjustment is done on the basis of equity. In sum, there is probably
no more widely accepted principle of international water resources law than that each state
"is entitled, within its territory, to a reasonable and equitable share of the beneficial uses of the
waters" of an international river, lake, or basin.
3. Duty to Inform, Consult, and Engage in Good Faith Negotiations.
The fundamental duty of states to refrain from using the waters of an international river, lake,
or basin in such a way as to cause appreciable harm to another state on the same watercourse
or in the same basin entails in practice that states must inform one another in advance of
water development plans and projects which may have an appreciable detrimental impact
on their respective interests. Whereas one state cannot claim a veto power over another state
wishing to alter the status quo in an international river, lake, or basin, it must nevertheless
be afforded access to information and opportunities to evaluate the situation and to suggest
adjustments if the proposed alteration may harm appreciably its legitimate interests. In turn,
the state proposing the alteration must give proper consideration to the objecting state's
representations, and both proposing and objecting state are under a duty to engage in
good-faith negotiations with a view to finding a suitable accommodation of their respective
interests.
It is fair to state, in sum, "that the duty to inform and to consult, and then to work out a solution that
obviates the expected appreciable harm is now cardinal in the field of shared water resources".
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appendix H
Water Policy 4 (2002) 389­403
Beyond the river: the benefits of cooperation
on international rivers
Claudia W. Sadoff*, David Grey
The World Bank, MSN J11-1102 1818 H Street, NW, Washington, DC 20433, USA
Received 25 May 2002; received in revised form 18 June 2002; accepted 17 July 2002
Abstract
International rivers can elicit cooperation or conflict. The choice between the two will in large part be
determined by perceptions of their relative benefits. In this paper, we explore the dynamics that drive the
choice between conflict and cooperation, and present a simple framework for examining the extent of
potential benefits that could underlie these choices. The paper seeks to broaden the range of perceived
benefits, as some are obvious and some are much less apparent. The framework categorizes four types of
cooperative benefits. First, cooperation will enable better management of ecosystems, providing benefits to
the river, and underpinning all other benefits that can be derived. Second, efficient, cooperative
management and development of shared rivers can yield major benefits from the river, in increased food and
energy production, for example. Third, cooperation on an international river will result in the reduction of
costs because of the river, as tensions between co-riparian states will always be present, to a greater or lesser
extent, and those tensions will generate costs. And finally, as international rivers can be catalytic agents,
cooperation that yields benefits from the river and reduces costs because of the river can pave the way to
much greater cooperation between states, even economic integration among states, generating benefits
beyond the river. While each of these four types of benefits could potentially be obtained in all international
river basins, the extent and relative importance of each type will vary greatly between basins, reflecting a
wide range of political, geographic, economic and cultural circumstances. In some cases, the scale of
benefits may not justify the costs of cooperative actions, in others the sum of benefits could be very high.
The paper concludes that identifying and understanding the range of often inter-related benefits derived
from the cooperative management and development of international rivers is central both to better
management of the world's rivers, and to relations among the nations sharing those rivers.
r 2002 Published by Elsevier Science Ltd.
Keywords: International rivers; Water resources management; Cooperation and conflict; Economic cooperation;
Regional integration; Water wars
*Corresponding author. Tel.: +1-202-458-2851; fax: +1-202-473-8301.
E-mail address: csadoff@worldbank.org (C.W. Sadoff).
1366-7017/02/$ - see front matter r 2002 Published by Elsevier Science Ltd.
PII: S 1 3 6 6 - 7 0 1 7 ( 0 2 ) 0 0 0 3 5 - 1
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1. Introduction
Rivers1 are extraordinary phenomena, with physical, cultural and psychological expression in
human societies; they bring life and death, civilization and devastation, opportunity and risk.
Managing rivers effectively has always been a goal of human societies and nation states. Under
Roman law, documented in the 3rd Century Roman Digest, aqua profluens (flowing water) was a
common good, neither public nor private, emphasizing equity and society-wide ownership.
Managing rivers for the common good remains today a societal goal in countries around the
world. To achieve this goal a range of instruments is being adopted: river basin organizations are
bringing stakeholders together to internalize the politics of allocation, market mechanisms are
widely used to rationalize the economics of allocation, and legislation is enacted and enforced to
ensure the regulation of allocation. One fundamental lesson of universal experience is that a river
is best managed as a basin unit, as any action in one part of the basin has impacts in another.
The management of rivers is complicated by the fact that they cross political boundaries
indiscriminately. Rivers intersect or even form borders between the many different users that must
share their water. River basins wholly within a nation invariably give rise to debate and discord,
to a greater or lesser extent, among users with conflicting demands and management preferences.
Strong national institutions can deal effectively with such differences, although in federal nations
with strong state legislatures (as in the US, India or Australia) management planning of, and user
disputes over, inter-state rivers often present major challenges. However, in all these cases, there
remains a national legislative structure with ultimate authority. There is rarely an institution of
equivalent authority, however, where rivers flow between, and disputes arise among, sovereign
nations. There are about 260 rivers that cross or form international borders; their basins cover
almost half of the world's land surface and include about 40% of the world's population (Wolf,
1998). As water everywhere becomes increasingly scarce relative to demand, conflicting
expectations of international rivers will grow, with only limited and little-tested supra-national
legal and institutional instruments available for nations to look to in order to allocate and
conserve the water of the rivers that they share.
There has been much written recently in the economic, political and scientific literature about
international rivers, with a sharp focus on `water wars'. Some write of water wars, both in the
past, and, more importantly, in the future. Others argue that no war in history has ever been
1 Some clarity over terms is necessary. In this paper, freshwater flows (whether surface water or groundwater), and the
lakes and wetlands which some of these flows may pass through, derive from or terminate within, are described, very
loosely and evocatively, as `rivers'. The term `international rivers' is used in this text to refer to freshwaters whose basins
are situated within the borders of more than one state. We recognize that there is a long-standing, formal debate over
such terminology. Some believe that the use of the word `international' is incorrect as it implies that the waters (as in
seas) do not belong to any state, whereas only the basin states have rights to an international river. Some use
`transboundary rivers', which confuses others as many river channels form international borders without crossing them
(although in these cases the river basins themselves will almost certainly be transboundary). Furthermore,
transboundary rivers include those that cross intra-national (e.g. state) borders--not only international borders.
Others use `shared rivers', which is disputed by some who do not perceive the use of such waters as `shared'. Again,
others use the term `watercourse', which is rejected by some who believe that it does not include the full extent of the
hydrologic basin and all its water sources. This often heated and rarely conclusive debate serves to emphasize the
importance of achieving a common understanding on the issues of `international rivers'--an understanding best
reached through recognizing the benefits of cooperation. This is the subject of this paper.
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391
fought over water, and that international rivers tend to induce cooperation. There is a case for
both positions, although, in this paper, we align ourselves with neither, and instead take a
somewhat different approach.
All international rivers, without exception, create some degree of tension among the societies
that they bind.2 There are consequences of these tensions, and of the cooperative or non-
cooperative responses they elicit, that can reach far `beyond the river'. These tensions, and their
responses, are bundled with many other factors--historic, cultural, environmental and
economic--that affect relations between neighboring nations. Within these bundled dynamics,
international rivers can in some cases become a powerful catalyst for conflict, or a powerful
catalyst for cooperation. Fully unbundling water's role from the complex dynamics of
relationships between states is not possible. Control of international rivers is inextricably
entwined with economic opportunity, national security, society and culture. Water--narrowly
defined--is unlikely to be or have been the sole source of any war, just as, we believe, war is
unlikely to be or have been fought for any single interest or purpose. The management of shared
water can be a force for peace, or a force for war, but politics--as a proxy for the full bundle of
relationships, and associated tensions, that arise between states--will determine whether
cooperation or conflict is chosen.
In this paper, we draw upon World Bank experience in different parts of the world and we
outline a framework, which is proving relevant and useful in considering cooperation on
international rivers. In setting the scene for this framework, we need to consider the nature of a
river and its roles in the environment and in the economic endeavors and political relationships of
human society.
2. The ubiquitous river
Rivers are a central feature of the ecology of the planet. Crustal processes build mountains and
create deep basins. Rain falls, is captured in rivers, erodes mountains, and deposit sediments in
lowlands, infilling basins. Rivers play a dominant role in sculpting landscapes and sustaining
ecosystems. All life needs water and the presence of water gives life, within the river itself, within
associated wetlands, lakes and riverine vegetation, and within the landscape sustained by the river.
While the river sustains life and ecological systems, so also do these systems sustain the river,
providing natural regulation of water quantity and quality.
Rivers have always been and remain a central feature of the economic environment. Human
settlement has almost always been close to water, because of the essential role water plays in
human life and economic endeavor. Only in the past century has technology allowed permanent
human settlement far from water. It is no coincidence that many of the world's great cities are
found along the banks of rivers. Rivers provide water for drinking, for food production, for
energy and for transport and have played a role in the development of human civilization--
nowhere more so than in the major alluvial basins of the world, such as the Mekong, the Indus,
the Euphrates and the Nile basins. People who settled in the floodplain had great opportunity to
grow crops along the river, as the annual flood receded, leaving fresh silt and high water levels
2 The word rival has the same root as river, derived from the riparian concept of dwellers on opposite riverbanks.
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which boosted production, and to use the river as a transport route to trade that production. In
fact, the need to ensure navigation along rivers provided the incentive for some of the earliest
recorded institutions and agreements on international rivers. The relationship between the flow of
rivers and the economy has long been recognized; the early Egyptians built Nilometers some 5000
years ago to measure the flow of the River Nile at Aswan in order to determine annual taxes for
farmers.
Rivers have also, less obviously, long been a feature of the political environment. History shows
us that they have played a part in defining the structure of human societies in many parts of the
world and in many ways. While early societies in alluvial basins had great opportunities, they also
faced great risk, for, if seasonal flood was high, or if it failed, then life was at risk. Harnessing the
flood took ingenuity and physical structures (with levees, dykes and canals) requiring the
organization of large numbers of people, as well as rules and institutions for water allocation.
From this emerged bureaucracies, hierarchies and innovations which helped strengthen
civilizations and cities.3 Societies in upland headwaters did not face the same imperatives, and
historically appear to have more often been characterized by smaller, less structured social
groupings. On the plains, proximity to rivers has been both a source and a reward of strength.
Stronger and wealthier societies tend to live close to rivers, while weaker, poorer ones are forced
away from rivers, where water is harder and more costly to obtain, and food supplies are less
secure. Similarly, in the less developed parts of the world today, stronger and wealthier groups
tend to live close to abundant clean water sources or water supply systems, while the poorest are
forced to travel significant distances to obtain water of generally lesser quality at greater cost.
Rivers are thus as closely linked with the economic and political fabric of human society as they
are with the landscape.
Today's international rivers are also interwoven with the geo-political map. Many rivers have
always been natural barriers and have defined boundaries (the Roman Empire reached but did not
cross the Rhine and Danube rivers). Similarly, the boundaries of watersheds are borders in many
parts of the world today, as they formed natural lines where there was no dispute over water. In
recent times, however, the drawing of lines on maps to form borders has ignored the significance
of hydrology. Africa is a case in point; lines drawn on maps in London, Paris, Berlin and Lisbon
have left over 60 rivers crossing national borders, with more river basins per country and more
countries per river basin in Africa than in any other continent.
Rivers are thus extraordinary, multi-dimensional systems. They are ecological systems, with
critical life- and landscape-sustaining functions. Cooperation on an international river could
enable better management of these ecosystems, providing benefits to the river, and underpinning
all other benefits that can be derived. Rivers are physical and economic systems, whose efficient,
cooperative management and development can yield major benefits from the river, in increased
food and energy production, for example. Rivers have political significance--particularly so when
they are shared between states; non-cooperation on an international river will result in tensions
between states that will always be present, to a greater or lesser extent, and those tensions will
3 See Wittfogel in Oriental Despotism (1957). Wittfogel argued that control of water for irrigation was central to the
Asian system of economic production, and had a profound impact on the organization of what he termed `hydraulic
societies' The control of water was therefore a source of power that could be exploited by a central bureaucracy--a
theory that came to be known as `hydraulic monopoly'.
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393
Table 1
Types of cooperation and benefits on international rivers
Type
The challenge
The opportunities
Type 1: increasing
Degraded water quality, watersheds,
Improved water quality, river flow
benefits to the river
wetlands, and biodiversity
characteristics, soil conservation,
biodiversity and overall sustainability
Type 2: increasing
Increasing demands for water, sub-
Improved water resources management for
benefits from the river
optimal water resources management
hydropower and agricultural production,
and development
flood-drought management, navigation,
environmental conservation, water quality
and recreation
Type 3: reducing costs
Tense regional relations and political
Policy shift to cooperation and development,
because of the river
economy impacts
away from dispute/conflict; from food (and
energy) self-sufficiency to food (and energy)
security; reduced dispute/conflict risk and
military expenditure
Type 4: increasing
Regional fragmentation
Integration of regional infrastructure,
benefits beyond the
markets and trade
river
generate costs; significant benefits could be derived by reducing costs arising because of the
river. International rivers can be catalytic agents, as cooperation that yields benefits from
the river and reduces costs because of the river can pave the way to much greater cooperation
between states, even economic integration among states, resulting in benefits beyond the river.
We will explore these four types of benefits, set out in Table 1, as a framework for our
discussion, while recognizing that they feed into each other inextricably and that they
are integrated elements of a much broader, even more complex system that cannot be un-
bundled.
3. The ecological river: benefits accorded `to the river'
Cooperation across borders in the sustainable management of a river ecosystem, according
benefits to the river, can be a valuable and unthreatening place for international cooperation to
start. Environmental management is a cornerstone of river basin management and development
and can bring benefits to all river uses and users. While there is a growing debate over the
`preferred' ecological state of a river--from `pristine' to `engineered', modern river basin
management typically incorporates a conscious design process to ensure a `healthy' river system,
however defined, which accounts in some way for the inevitable tradeoffs of river development. A
healthy river is typically one with: protected watersheds, preserving soil fertility and reducing
contaminant and sediment soil transport; conserved wetlands, floodplains and groundwater
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recharge areas, to maintain their natural capacity to buffer river flow and water quality variations;
protected aquatic and riverine terrestrial biodiversity; and controlled water abstraction and
wastewater discharge, to manage river flows and water quality.
Although rivers are resilient ecological systems that can recover from natural and
anthropogenic shock, growing populations and industrializing societies almost invariably cause
environmental damage to rivers, by, for example, reducing flows, eroding water quality and
destroying fish stocks. Organizing affirmative action to protect the river within a nation state has
proved complex and is costly if left until major damage is done and remedial action is needed, as
many industrial nations have discovered. The US Superfund is a case in point, where tens of
billions of dollars are being invested to restore surface and ground water systems, and particularly
the latter, as groundwater clean up is invariably difficult.
The challenge of the protection of international waterways is much greater still, although there
are recent examples of major cooperative efforts to restore and protect shared water systems.
Initiatives in the Baltic and Red seas, and in the Danube basin, all supported by the Global
Environment Facility, are good examples of this, bringing `benefits to the river'. Cooperation
among the eight Rhine riparian states is another interesting example. Cooperation on the Rhine
goes back over a thousand years to navigation agreements. In the mid-19th century salmon
production was an important economic activity in the Rhine. Growing populations and industries
led to a complete extinction of salmon in the Rhine by the 1920s--with over half of the world's
chemical production occurring along the Rhine by the 1950s, when the Rhine was known as `the
sewer of Europe'. In 1987, ministers of the Rhine countries launched the Rhine Action Plan, with
the symbolic goal of `Salmon 2000'--a readily understood objective which popularized the much
more complex goal of reducing chemical contaminants to a level that would bring life back to the
river. Following intensive international cooperation, major investment and widespread public
support, by 2000 salmon were swimming up the river as far as Mannheim to breed once more,
signifying a healthy river again. Today, much wider Rhine cooperation is planned--such as in the
area of flood control.
In poorer regions of the world, there may appear to be fewer incentives for, and therefore less
interest in, the management of the ecosystems of rivers. Yet, rivers are balanced systems and
upsetting this environmental balance by unmanaged development can have major social and
economic impacts. As populations and pressures on land grow in less developed nations, the
poorest of the poor are forced into more and more marginal lands. In river basin headwaters,
these are vulnerable uplands, often with high slopes and vulnerable soils. Forests are cut down,
wetlands drained and slopes are cultivated. Soils are eroded, resulting in reduced crop yields and,
eventually, unsustainable livelihoods. More insidiously, groundwater recharge is reduced and
levels lowered, river flows become much more flashy and downstream flood and drought impacts
can be greatly enhanced. In these circumstances, watershed management can be one key to
sustainable development. There are a growing number of countries where this is recognized, with
funds channeled to rural people for development programs, recognizing that they act as guardians
of the watersheds that feed cities and industries downstream. This is much more difficult to
organize in international river basins, where upstream nations are the guardians of the watersheds
for downstream nations.
Take the case of Southern Africa, where there are numerous international rivers. Drought in
the early 1990s had massive economic and social impacts with, for example, a 45% decline in
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agricultural production in Zimbabwe in 1992. In 2000 and 2001 flooding of the Save and Limpopo
rivers also had major impacts, particularly on the poor living in the most vulnerable parts of the
floodplains in Mozambique, a downstream riparian state on eight international rivers.
Smallholder settlement on vulnerable headwaters upstream, coupled with recurring drought
and flood, has led to serious soil erosion and altered hydrologic regimes, with impacts throughout
the river basins of the region. In the case of Mozambique, managing floods and droughts requires
actions in the watersheds of upstream states. Unintentionally, the settlement of vulnerable
watersheds in one country, often by the very poor, can thus have major impacts on a downstream
country--and often on the very poor settled in the floodplains. There can be no reasonable
solution without international cooperation.
It is clear that cooperation in the management of land and water within a basin ecosystem,
according benefits to the river, can bring benefits to all--and may even be a pre-requisite for
deriving benefits from the river.
4. The economic river: benefits to be reaped `from the river'
Cooperative management of the water flowing in an international river can reap benefits from
the river. Managing a river basin from a system-wide perspective can increase the quality, the
available quantity, and the economic productivity of river flows. River basin development seeks to
promote this integrated, system-wide perspective, where the full range of water use opportunities
and the various inter-relationships of individual water uses can be considered. River flows and
water uses can be optimized to yield, inter alia, more food, more power, and more navigational
opportunities, while sustaining environmental integrity. There will often be difficult tradeoffs to
be assessed between environmental conservation and river development, with these assessments
best made at the basin scale. This is always difficult, even within national boundaries. In
international river basins, this system-wide perspective is much more difficult to obtain, and this
can only be achieved through cooperation. The gains that result from this shift in planning
perspective, are the most obvious and direct economic gains to be made from the cooperative
management of shared waters.
There is a widespread perception that water allocation is a zero-sum game, that water resources
are finite and that one use will always preclude another. While physical water resources are,
indeed, finite, the quantity of available water resources can be influenced by management actions.
This is particularly true where rainfall is low and highly variable. Good water management
practices can effectively increase the available water resources in a system by, for example,
protecting watersheds to minimize erosion, maximize infiltration and extend the period of run-off;
providing over-year storage to buffer rainfall variability and reserve water in abundant years that
would otherwise be lost; and by locating storage in areas of the basin that minimize evaporation
and environmental disruption. In semi-arid Spain, for example, effective water management
practices have increased water availability from 8% of total flow to 60%. There are also many
non-consumptive uses of water, such as hydropower generation, navigation and recreation. The
`use' of water for these purposes will not necessarily diminish the water available in the system for
other uses.
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Focusing on the benefits4 derived from the use of water in a river system, rather than the
physical water itself, is another way to broaden the perspective of basin planners. The allocation
of water, particularly in international systems, is often contentious. However, the underlying
interest of many involved, often not recognized, is commonly not the water itself--but rather the
benefits and opportunities they hope to obtain from access to that water (i.e. not cubic meters but
dollars). A focus on the benefits derived from water use may provide greater scope, and hence
greater flexibility, in defining cooperative management arrangements that are acceptable to all
parties.
Just as good water resource management practices can increase the availability of water in a
river system, integrated planning that maximizes the benefits derived from water can clearly
increase the overall productivity of a river system. The positive-sum nature of international
cooperation in this context is more intuitive, because of the interaction of economic activities and
the integrity of the ecosystem. Basin-wide configurations of consumptive and non-consumptive
water uses can be explored to optimize benefits. In some cases, potential non-consumptive benefits
may exist that could provide significant additional benefits to a basin without any change in the
pattern of water extractions.
There are many good examples of cooperation reaping economic benefits from the river. In the
case of the Senegal river, Mali, Mauritania and Senegal are cooperating to regulate river flows and
generate hydropower, with a legal and institutional framework and co-owned infrastructure
assets, including the Manantali dam that is located 300 km inside Mali. In another case, Lesotho
and South Africa are cooperating in the construction of infrastructure on the Orange River in the
Lesotho Highlands Project, providing least cost water supply to South Africa's industrial
heartland and royalties to Lesotho amounting to 5% of GDP.
Major (joint or several) development, such as the construction of dams and major abstractions
for irrigation, present special challenges due to the need to assess options and tradeoffs and to
apply environmental and social safeguards effectively and reasonably across international borders
and jurisdictions. Again, both the Senegal river and Orange river cases illustrate this, with
ongoing debates on environmental issues made more complex by their international nature.
Yet, even significant gains to cooperation in a river system may not be sufficient motivation for
cooperation if the distribution of those gains is, or is perceived as, inequitable. It is possible, for
example, that a cooperative river management scheme which generates significant gains to the
group as a whole might provide fewer benefits to one particular riparian than an alternative non-
cooperative scheme. That particular riparian would therefore have little incentive to cooperate.
Even if all states benefit more from cooperation than non-cooperation, the relative distribution of
gains could inhibit cooperation. Concepts such as Tedd Gurr's `relative deprivation' or William
Baumol's `envy' suggest that parties are not indifferent to the gains of others, and that some might
choose to forgo their own potential gains in order to bar other parties from receiving relatively
greater, or preferred, gains.5 In such cases, a cooperative arrangement may not be agreed without
redistribution or compensation.
4 Economic benefits here can include anything to which societies attach value.
5 In addition to equity concerns, the spatial and political relationships between riparians may make relative gains
relevant to regional development, integration and relations. Water resource management affects economic and
demographic development patterns, enabling or undermining the growth of economic activities and human settlements.
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An equitable benefit sharing arrangement may well require some form of redistribution or
compensation. The form that compensation takes will be highly situation specific, but could
involve monetary transfers, granting of rights to use water, financing of investments, or the
provision of non-related goods and services. The range of benefits under discussion is also a
critical issue. The broader the range of benefits under discussion, the more likely the riparians will
be able to find a configuration of benefits that is mutually acceptable. While some benefits are
difficult to share or compensate,6 in general the optimization of benefits should be more robust
and more flexible than the optimization of physical water resources, because benefits tend to be
more easily monetized and compensated and they have less political and psychological
significance.
A body of international water law has evolved that focuses on the river as a physical system.
Cooperative international management of water resources falls within a legal framework that
focuses on water rights. Early principles still cited in the context of international water
negotiations are those of `prior appropriations' or `first in time--first in right', often cited by a
downstream riparian state, and that of `absolute sovereignty', where water within a nation state is
considered to belong to that state, often cited by an upstream state.7 After decades of
consideration, important principles have been codified in 1997 in the `UN Convention for the
Non-navigational Uses of Shared Watercourses', which has yet to be ratified by a sufficient
number of states to enter into force. The key principles of the Convention are those of `equitable
utilization', which emphasizes equity for all riparians, and `no significant harm', which emphasizes
protection for all riparian interests.
However, the application of these principles is fraught with difficulty and they risk opposing
each other. The embrace of the first principle by many upstream states and the second by
downstream states is a consequence of this. It must be recognized that both principles apply
upstream and downstream equally. It is obvious that upstream users must recognize the
dependence (sometimes total) on the river of downstream states and the risks of causing
significant harm by reducing river flows. It is also true, though much less obvious, that
downstream development can generate harm upstream by effectively foreclosing future
opportunities for upstream use. Clearly upstream extraction generates externalities downstream
by diminishing flows physically. On the other hand, downstream extraction can generate
externalities upstream by diminishing future available flows upstream because of downstream
claims of acquired rights to that water.
International water law is commonly interpreted as focusing on the allocation of water,
resulting in riparian disputes being perceived as zero-sum prospects. International law provides
guidance but no clear hierarchy for competing claims on shared waters. The law does provide
important principles for developing a sound framework for cooperation between nations.
However, there will also always be political motives for, and consequences of, non-cooperation
that derive not from the river directly, but because of the river.
(footnote continued)
The growth, decline or character of nearby industrial and urban developments, for example, could have real impacts,
both positive and negative, on market opportunities and environmental quality in neighboring states.
6 For example, those benefits derived from environmental or social values may not be substitutable or easily
compensated.
7 Memorably cited by Judge Harman in 1895, in the case of the Rio Grande, shared by the US and Mexico.
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5. The political river: costs arising `because of the river'
Far-reaching gains from cooperation in international rivers may accrue as savings of the costs
of non-cooperation arising because of the river. The control of rivers and river flows has long
been--and to some extent always is in all international rivers--a source of tension and dispute;
and an issue of sovereignty, strategic necessity, and national pride. Such tensions (often
inextricably linked to, and perhaps even indistinguishable from, other tensions) may reach the
point where they color the geo-political relationships between states within a basin and become
obstacles to growth by constraining the regional political economy and diverting resources from
economic development.
International cooperation can ease tensions over shared waters, and provide gains in the form
of the savings that can be achieved, or the costs of non-cooperation or dispute that can be averted.
These tensions and costs will always be present to some degree in all river basins; in some basins
they may be insignificant, in others they may be very high and may present enormous challenges.
In particularly, this occurs where water quantity is the major issue--as is likely to be the case with
rivers flowing through arid areas, where contesting claimants commonly (but often not correctly)
perceive a zero-sum game. Good examples of such cases include the Jordan, Nile, Euphrates and
Indus basins, where relations between riparian states are significantly influenced by the waters that
they share and are characterized by dispute.
Tensions arising because of the river, particularly where they are acute or long-standing, can
thus significantly strain broader relations between states and impact the political economy of a
region. Strained international relations tend to inhibit regional integration and manifest
themselves in the fragmentation of markets, infrastructure, telecommunications, transport
connections, labor flows, financial systems, etc. This fragmentation compromises all of the
affected economies by denying them the benefits of regional integration that are potentially
extremely important, particularly for small or developing economies. In some international river
basins, little flows between the basin countries except the river itself--no labor, power, transport,
or trade.
Tense regional relations may encourage the adoption of polices that focus on self-sufficiency,
rather than on trade and integration. In the agriculture and power sectors, for example, this could
mean the promotion of food and power self-sufficiency, which emphasizes the need to produce, in-
country, all the food and power the country demands, even if the cost of doing so is greater than
the cost of imports. Generally it is more economically efficient to promote food and power
security, which focuses on a state's capacity to secure its food supply either through trade or
production--whichever is most cost effective.
In extreme cases, tensions arising because of the river may result in diversion of strategic human
resources and policy focus from economic development to security concerns related to water and a
diversion of financial resources to military preparedness. If these tensions contribute to conflict,
then the human and financial costs can be extremely high. While these costs because of the river
are not readily seen or quantified, they can be very real and substantial, and can compound other
tensions leading to higher costs still.
We have referred to the extensive debate in the literature on the specter of `water war'. The
reality is likely to lie somewhere between those that contend that water is a source of increasing
tension and a potential flashpoint for conflict, and those that argue that there has never been a
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water war and that the issue is less explosive than it seems. Clearly, as water becomes increasingly
scarce relative to demand there will be competing claims on its use, which may increase geo-
political tensions. Where these tensions are high, they may be one of many underlying issues that
contribute to souring relationships, and catalyze conflict. It is reasonably argued that there has
rarely been a `water war', where water is the sole cause of conflict. However, it is probably the case
that there has never been a single cause for any war, and resource conflicts--land, water,
minerals--are clearly common contributory factors to many past and present (and future)
conflicts.
It is difficult to unbundle the importance of shared waters in the dynamics between riparian
states from other contributory factors in conflict. From our experience, water plays a significant
part in a number of recent and current disputes, even conflicts, around the world, especially where
climate variability and water scarcity, coupled with major transboundary flows, create high levels
of perceived threats to national water security. By the same token, cooperation with regard to
shared waters contributes to strengthening relations between countries, and catalyzing broader
cooperation, integration and stability. It is for this reason that the debate in the literature over
whether there have been or will be `water wars' is misguided; shared water has always and will
always be one contributory factor in determining relations between states. The challenge is for
international rivers to enhance relationships through shared opportunities, contributing to the
benefits of cooperation and integration beyond the river.
6. The catalytic river: benefits enabled `beyond the river'
Cooperation in the management and development of international rivers may contribute to, or
even result in, political processes and institutional capacities that themselves open the door to
other collective actions, enabling cross-border cooperation beyond the river. Increasing the
benefits from the river and decreasing the costs arising because of the river enable broader
economic growth and regional integration that can generate benefits even in apparently unrelated
sectors. Improved river basin management can increase the productivity of a river system, which
may then generate additional opportunities in other sectors through forward linkages in the
economy. The easing of tensions among riparian states may also enable cooperative ventures
unrelated to water that would not have been feasible under strained relations. Flows other than
the river--such as improved communications and trade--may grow. Thus, progress in
cooperation on shared river management can enable and catalyze benefits `beyond the river',
more directly through forward linkages in the economy and less directly through diminished
tensions and improved relationships.
The forward linkage effects of generating benefits from the river, for example in food and
energy production and trade, are relatively obvious. Agricultural surpluses may spur growth in
agro-processing or trade. Enhanced hydropower production and interconnection could both
expand productive opportunities and increase the profitability and competitiveness of existing
power-using enterprises. This may lead to additional investments in industry or infrastructure,
and strengthened trade relations. Investments, improved infrastructure networks and trade
relations can in turn generate additional growth opportunities, and so on. These types of forward
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linkages could be national, supporting growth and development within basin states, or
international, promoting exchange, trade and interconnection among basin states.
It is less obvious that diminishing the tensions that arise because of the river will enable greater
economic integration among basin riparians and help to redress the regional fragmentation that
may exist as a consequence, at least in part, of tensions arising because of the river. Easing these
tensions could enable cooperation among countries by diminishing formal and informal
restrictions on the movement of goods, labor and finance between countries, increasing
integration even in apparently unrelated sectors such as transport, telecommunications or
tourism. Regional infrastructure systems can be of particular importance. The fragmentation of
regional infrastructure, especially in the case of small, landlocked economies, can be a major
obstacle to growth. Where cooperation on international rivers can contribute to increased
integration of infrastructure systems, development impacts can be significant.
The Mekong basin, shared by Cambodia, China, Laos, Myanmar, Thailand, and Vietnam,
where relationships among the riparians have been turbulent for decades, provides an interesting
case. While there have not been major disputes arising over the Mekong itself (and thus relatively
small costs `because of the river'), significant benefits have been derived `from the river' through
cooperative management. Sharing the Mekong's benefits has proved to be an important
stabilizing factor in the region, bringing substantial benefits `beyond the river', both directly from
forward linkages and indirectly from diminishing tensions. During years of conflict between Laos
and Thailand, for example, Laos always provided hydroelectricity to Thailand, and Thailand
always paid. Similarly, the Government of Thailand has followed an explicit strategy of increasing
regional stability by creating mutual dependency and thus purchases gas from Myanmar and
Malaysia and hydropower from Laos and China, in part because these are low-cost supplies and
in part because they create ties that bind the countries in a web of mutual dependency.
Cooperation with regard to river systems may therefore facilitate the political processes needed
to enable cooperation on other `systems' within and beyond the river basin, such as labor flows,
markets and infrastructure. These economic `systems' may extend well beyond the river, yet
tensions because of the river system can be barriers to their development. Developing and
integrating these broader economic systems can make each individual economy stronger and more
competitive, and more easily integrated into the global economy.
7. The cooperative river: the dynamics of multi-type benefits
The cooperative river can therefore be seen to generate benefits of multiple types, although the
potential sum of these benefits in different basins will vary greatly. The first type are the benefits
accorded to the river by cooperative basin-wide environmental management, the second are those
benefits to be reaped from the river by cooperative development of the basin, the third are the
savings that can be made by diminishing the costs of non-cooperation arising because of the river,
and the fourth are broader opportunities that are catalyzed beyond the river.
The relative importance of each type of benefit, and the dynamics among the types will be
unique to each basin and the states which share it, reflecting, for example, history, hydrology,
economics, politics and culture. While it is likely that in all basins there will be some potential
benefits of each of these types, the value of these benefits, individually and in total, will vary
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significantly among river basins. These potential benefits must be weighed against the generally
high costs of establishing and maintaining multi-country river basin institutions, and may not
everywhere justify cooperative efforts.
Seen another way, non-cooperation will have costs in terms of foregone opportunities of each
of these types. Opportunities and gains may be highly visible, or extremely subtle. Cooperation on
an international river may even be a necessary (but clearly not sufficient) condition for stable
international relations and trade between basin states. Thus, it is quite possible that the greatest
gains associated with cooperation on international rivers will derive from apparently unrelated
development that would never have been considered had tensions over shared waters remained
between nations. This relationship needs to be more widely understood and recognized, to
increase the incentives for cooperation on international rivers.
Some river basins have the potential to generate significant benefits of multiple types; the Nile is
a good example. Ten countries share the Nile; five are among the 10 poorest countries in the
world; four are landlocked; and seven are, or recently have been, involved in internal or
international conflicts. All of the riparians rely to a greater or lesser extent on the waters of the
Nile for their basic needs and economic growth. For some, the waters of the Nile are perceived as
central to their very survival. It is not surprising, therefore, that for centuries the Nile nations have
been concerned by the actions of other riparians. This has been the basis, supplemented by many
other factors, for tensions between riparian states. It is clear that Type 3 costs `because of the
river' are high. Environmental management is also a challenge. The Nile is the world's longest
river, it covers one-tenth of Africa's total land mass and is home to Lake Victoria, the
second largest freshwater lake, and the Sudd swamps, a wetland the size of Belgium. To effectively
preserve the vast Nile ecosystem and bring Type 1 benefits `to the river', cooperation is
needed. The potential for Type 2 economic gains `from the river' are significant, for example,
through the cooperative management of river flows to mitigate against endemic floods
and droughts, and coordinate hydropower and agricultural production, with major opportunities
to construct shared infrastructure. Finally, cooperation on the management of the river can
catalyze flows other than water between the countries, by diminishing regional tensions,
increasing production, and promoting broader regional integration and cooperation `beyond the
river', bringing Type 4 benefits. The 10 Nile riparians are currently engaged in a cooperative
effort, the Nile Basin Initiative, which explicitly seeks to develop and share all four types of
benefits.
Table 2 explores the dynamics of cooperation on international rivers. The incentives for
cooperation suggest why cooperation takes place, often due to concerns over problems, such as
climate (and associated river flow) variability or recognition of opportunities, such as economic
potentials. The catalysts for cooperation suggest how cooperation is fostered and promoted, often
through improved communications and dialogue at many different levels. The linkages show the
dynamics between the different types of cooperation, and to some extent suggest when
cooperation of each type may take place. The linkages between types of cooperation suggest
that making a start in environmental (Type 1) or direct economic cooperation (Type 2) can lead to
growing political (Type 3) and indirect economic cooperation (Type 4)--or vice versa. The
dynamics between types might be positive or negative. For example, while Type 3 cooperation
may help further advance Type 1 and Type 2 cooperation, setbacks in Type 3 relations may
impede cooperation of Types 1 and 2.
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Table 2
Dynamics of cooperation on international rivers
Type
Incentives
Catalysts
Linkages
Type 1 (environmental):
Concerns over river flows
Public awareness
Type 1 actions underpin
increasing benefits to the
(including flood and
sustainable Type 2 and 4
river
drought) and pollution
development
Ecosystem sustainability
Joint environmental
Type 1 action builds
diagnostic analysis
Type 3 trust (inaction
fuels Type 3 tensions)
Type 2 (direct economic):
Recognized economic
Joint analysis of optimized
Type 2 actions motivate
increasing benefits from
growth and business
river development
Type 1 joint stewardship
the river
opportunities
of resources
High variability of river
Fora for engagement of key
Type 2 actions ease Type
flows, giving unreliable
actors (e.g. water and power
3 tensions (unilateral
supplies and flood and
industries, farmers, agri-
actions fuel Type 3
drought risk
business)
tensions)
Growing water scarcity
Identification of win­win
Type 2 actions may
investments
generate production
surpluses (agriculture,
power) for Type 4
integration
Type 3 (political):
Concern for improved
Improved communications
Type 3 gains facilitated
reducing costs because of
international relations
(infrastructure, telecoms,
by Type 1 actions that
the river
and peace given
media, etc)
build trust
increasing water demands
Need to ensure long-term
Specific political dialogue
Type 3 dialogue and
river flows and benefits
(possibly mediated)
engagement promoted by
from flows
Type 2 actions and
shared benefits (unilateral
actions to capture
benefits will increase
tensions)
Recognition of
Broader regional/global
Type 3 gains enable
opportunities lost by
political initiatives and
further Type 1 and 2
policy focus on non-
agreements
actions and Type 4
cooperation
opportunities
Type 4 (indirect
Recognized gains from
Broad analysis of economic
Type 4 gains sustained by
economic): benefits
economic cooperation
cooperation barriers and
Type 1 actions
increasing beyond the
(particularly for small
opportunities
river
and /or landlocked
economies)
Civil society and private
Type 4 opportunities
sector exchange
arise from tradable
surpluses generated by
Type 2 actions
Broader regional/global
Type 4 integration
economic initiatives and
enabled by Type 3 gains
agreements
in policy shift to regional
cooperation, lowering
barriers to trade and
communication
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8. Conclusions
We have proposed in this paper an analytic framework describing four types of benefits
(environmental, direct economic, political and indirect economic) from cooperation on
international rivers. While there is enormous variation among the numerous international rivers
of the world, we submit that costs of non-cooperation, and benefits of cooperation of all four
types will manifest in all international river systems, to a greater or lesser extent. However,
although these types of cooperation can be recognized, they are closely interwoven with each
other. Furthermore, cooperation--and non-cooperation--between states on international rivers
feeds into, and is fed by, a much broader bundle of international relations, from which it cannot
be isolated. Thus conflict is unlikely to result over international rivers alone, but international
rivers can be one significant cause of conflict. Similarly, joint management of international rivers
will not be the sole area of cooperation between states, but it can be a significant catalyst for peace
and economic integration.
The international rivers of the world are coming under growing pressure from increasing water
demand and water quality deterioration. It is important to understand what the benefits of
cooperation on international rivers may be, why cooperation may occur and how it may be
fostered. Greater cooperation on an international river will lead to better management and
development of the river itself, and, in many cases, it may also promote economic integration and
regional security, beyond the river.
Acknowledgements
We would like to acknowledge the input and inspiration of our many colleagues in the World
Bank, particularly in the Africa Water Resources Management Initiative, and in Africa. We
would particularly like to thank John Briscoe, Dale Whittington, Jerry Delli Priscoli and Inger
Andersen for constructive and critical review of the ideas expressed in this paper.
References
Karl, A., Wittfogel. (Eds.). (1957). Oriental despotism; A comparative study of total power. New Haven: Yale University
Press.
Wolf, A. T. (1998). Conflict and Cooperation along Inernational Waterways. Water Policy, 251.
223

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I
appendices
appendix I
Stephen C. McCaffrey and Mpazi Sinjela, "Current Development: The 1997 United Nations
Convention on International Water courses," 92 A.J.I.L. 97, 105-07 (1998)
current Development: The 1997 united nations convention on International watercourses
When the resolution containing the [1997 U.N Convention on the Law of the Non-navigational
Uses of International Watercourses came before the General Assembly for adoption on May 21,
1997, Turkey requested a recorded vote. The vote was 103 in favor and 3 against (Burundi, China
and Turkey), with 27 abstentions. In the context of a convention on international watercourses,
103 affirmative votes seem to constitute a strong endorsement: quite a few countries would not be
interested in the subject matter of r the reasons already indicated. While General Assembly votes are
notoriously opaque, this one appears to hold out hope that the [NUIW] Convention1 may actually
enter into force. The significant number of abstentions does not bode particularly well, but the fact
that only three states could bring themselves to vote against the resolution suggests a sense among
the overwhelming majority of delegations that the rules embodied in the Convention are generally
acceptable and, on the whole, reflect a reasonable balance between the interests of upstream and
downstream states. The negative votes of China and Turkey are probably attributable to their positions
as upstream states in ongoing controversies rather than to dispassionate assessment of the law. The
vote of Burundi came as something of a surprise since it did not participate at the working-group
level and since the hydro-geography of the states in the upper Nile basin, including Burundi, will
prevent their activities from affecting Egypt or Sudan. Burundi's position may owe more to political
considerations that to hydro-geographic reality.
Outlook
Even if the Convention never enters into force, it is likely to prove of significant value for several
reasons, some of which have already been alluded to. First, it was based on, and hews closely to, a
draft prepared by the International Law Commission, the United Nations body responsible for the
"progressive development of international law and its codification." As is its practice, the ILC did
not indicate which of the provisions codify, and which progressively develop, the law. But it seems
clear that the most important elements of the Convention--equitable utilization, "no harm", prior
notification--are, in large measure, codifications of existing norms. That the working group did not
fundamentally alter the ILC's approach betokens general satisfaction with the Commission's efforts
at codification and progressive developments in this field. The report of the working group to the
General Assembly notes: "Throughout the elaboration of the draft Convention, reference had been
made to the commentaries to the draft articles prepared by the International Law Commission to
clarify the contents of the articles."2 Even the provisions of the Convention that do not reflect current
law are likely to give rise to expectations of behaviour on the part of riparian states that may, over
time, ripen into international obligations.

Second, the Convention will have value even if it does not enter into forces because it
was negotiate din a forum that permitted virtually any interested state to participate. It is the only

TheConventionisoftencitedasthe"NUIWConvention."

ReportontheSixthCommittee,...36I.L.M.at70(997).
225

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appendices
convention of a universal character on international watercourses. It was adopted by a weighty
majority of countries with only three negative votes, indicating board agreement in the international
community on the general principles governing the non-navigational uses of international
watercourses. These considerations also mean that if it does enter into force, the Convention will
have significant bearing on controversies between states, one or more of which is not a party to it.
In addition, the Convention may be helpful in interpreting other general or specific watercourse
agreements that are binding on the parties to a controversy, whether or not the convention is itself
binding on those parties.

Third, even before the Convention's adoption, the ILC's draft articles on which it was based
had influenced the drafting of specific agreements. These include the 1995 Protocol on Shared
Watercourse Systems in the Southern African Development Community Region,3 the 1991 Protocol
on Common Water Resources concluded between Argentina and Chile,4 and the 1995 Agreement on
the Cooperation for the Sustainable Development of the Mekong River Basin.5 It is likely that, with
the adoption of the Convention, states negotiating future agreements will resort to its provisions as a
starting point.

Thus, in the words of Ambassador Tello of Mexico, introducing the draft resolution containing
the Convention, "[t]his instrument undoubtedly marks an important step in the progressive
development and codification of international law...."6 IT does not go as far as it might have gone
in some areas,7 and goes farther than some states would have liked in others.8 The sponsors of the
resolution containing the Convention declared that they were "convinced" that it "will contribute to
the equitable and reasonable sue of transboundary water resources and their ecosystems, as well as
to their preservation, to the benefit of current and future generations," and that it "will contribute to
enhancing cooperation and communication among riparian States of international watercourses."9
In its resolution first calling for negotiation of a convention, the General Assembly had declared its
conviction "that successful codification and progressive development of the rules of international law
governing the non-navigational uses of international watercourses would assist in promoting and
implementing the purposes and principles set forth in Articles 1 and 2 of the [UN] Convention."10
Now that the work has been completed, it seems fair to conclude that the Convention will indeed
assist in promoting and implementing those purposes and principles.

SignedatMaseru,Lesotho,16May1995(copyonfilewiththeauthors).

IntegracionLatinoAmericana,REvistaMensueldelIntal6(Sep-Oct997).

Apr99,3I.L.M.86(99)
6
Verbatimrecord,99thplenarymeeting,UNDoc.A//PV.99,at(997).

Forexample,asignificantgroupofdelegationsbelieveditsprovisionsconcerningpollu-
tionandtheecosystemsofinternationalwatercoursescouldhavebeenstrengthened....

Forexample,theprovisionsofpartIII["PlannedMeasurers"]drewfirefromsomedel-
egations....However,theywerestronglysupportedbyothers.Thattheysurvivedthenegotiation
processbespeakstheiroverallbalance.
9
Verbatimrecord,supranote7,at.
0
GARes.9/3,UNGAOR,9thSess.,Supp.No.9,Vol.,at,UNDoc.A/9/9
(99)
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