Founder : Len Abrams
Water Policy International
Return to the Features Page
Return to the Documents Page
Return to International Water Law Page
21 May 1997
Link to the Convention
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 also to consider the appointment of members of the Joint Inspection Unit (JIU), confirmation of the appointment of the Administrator of the United Nations Development Programme (UNDP) and a letter from Bolivia expressing interest in becoming a member of the Special Committee on decolonization.
In addition, the Assembly is expected to consider a request that it reopen its agenda items on trade and development and on implementation of the decisions and recommendations of the United Nations Conference on Environment and Development (UNCED). It is also to act on a recommendation that it include on its agenda an item on cooperation between the United Nations and the Organization for the Prohibition of Chemical Weapons. (For additional background information, see Press Release GA/9247 of 20 May.)
The Assembly has before it a 32-Power draft resolution (document A/51/L.72), by which it would adopt a convention on the law on the non- navigational uses of international watercourses and ask the Secretary-General to open it for signature. It would also invite States and regional economic 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).
The 37-article draft framework convention and 14-article annex was elaborated by the Working Group of the Sixth Committee at its second session, from 24 March to 4 April. It provides general principles 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 and management; harmful conditions and emergency situations; miscellaneous provisions; and final clauses on such matters as signature and entry into force.
The draft framework convention governs the non-navigational uses of international watercourses, 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 navigational uses, except in so far as other uses affect navigation or are affected by it.
The draft resolution as sponsored by Antigua and Barbuda, Bangladesh, Bhutan, Brazil, Cambodia, Canada, Chile, Denmark, Finland, Germany, Greece, Hungary, Italy, Japan, Lao People's Democratic Republic, Liechtenstein, Malaysia, Mexico, Nepal, Netherlands, Norway, Portugal, Republic of Korea, Romania, Sudan, Sweden, Syria, Tunisia, United Kingdom, United States, Uruguay and Venezuela.
Convention on International Watercourses
YUKIO TAKASU (Japan) introduced the report of the Sixth Committee on the draft watercourses convention. He said that following informal consultations, consensus had been reached to complete draft article 34 to read as follows: "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."
MANUEL TELLO (Mexico) introduced the draft resolution on the draft convention, announcing the addition of Cameroon, Grenada, Honduras, Jordan, Latvia and Viet Nam as co-sponsors.
DAUDI N. MWAKAWAGO (United Republic of Tanzania) said the draft resolution was of great 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 necessitated votes on provisions and the draft as a whole.
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.
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 "groundwaters". While the flow of a river could be measured in precise terms at various gauging sites, it was not possible to do so with groundwaters, 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 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 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
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 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.
2000/1 Water Policy International Ltd -