International Water Law and International Agreements

Water is a vital resource that crosses borders and connects communities. There are over 260 major international water basins shared between two or more countries, and nearly 450 transboundary aquifers that straddle national boundaries. As demand for freshwater increases with population growth, economic development, and climate change, there is a critical need for international cooperation on shared water resources. International water law provides a framework for such collaboration, aiming to balance reasonable use with protection of ecosystems and prevention of disputes over transboundary waters. This report provides an overview of the key principles, treaties, and institutions shaping the evolution of international water law and cooperation on transboundary waters.

Table of Contents

History and Evolution of International Water Law

Use and governance of international rivers traces back thousands of years to early civilizations like the Egyptians, Babylonians, and Indus Valley societies that depended on the Nile, Tigris-Euphrates, and Indus rivers respectively. However, it was not until the 19th and 20th centuries that modern international water law began to take shape. Key developments include:

Late 19th/early 20th century: Emergence of customary international law principles around fair and equitable use, prevention of significant harm, cooperation, and exchange of information on transboundary waters. These were based on arbitration cases, treaties, and guidelines like the Helsinki Rules.

1960s-1970s: UN codification efforts including the Helsinki Rules on the Uses of International Rivers and Lakes, laying out equitable use and no harm principles. Regional treaties like the Mekong Agreement also adopted these principles.

1970s-1990s: Focus on comprehensive basin-wide management, environmental protection, and public participation in addition to equitable use, as reflected in treaties like the 1992 UNECE Water Convention.

1997 UN Watercourses Convention: Consolidated customary international law on uses of international watercourses into global treaty, though lacking universal participation.

2000s-present: Continued evolution through treaties, institutions, and justice mechanisms like the International Court of Justice and River Basin Organizations focusing on ecosystem protection, climate resilience, water security, benefit sharing, and sustainable development of transboundary waters.

Key Principles and Frameworks

Several fundamental principles underpin modern international water law:

Equitable and Reasonable Use: The idea that each riparian state is entitled to a fair share of uses of a transboundary water body. All relevant factors should be considered in determining what is equitable and reasonable use.

Obligation Not to Cause Significant Harm: Riparian states must take all appropriate measures to prevent substantial damage to other riparian states sharing a transboundary water body. However, some level of mutual accommodation is needed as no use can avoid completely avoiding any harm to other users.

Duty to Cooperate: Riparian states must cooperate in good faith over the use of transboundary waters through information exchange, notification, and peaceful resolution of disputes.

Sustainable Development: Management of transboundary waters should promote sustainable development across economic, social, and environmental realms. This includes protecting ecosystems.

These principles are incorporated into all major international water agreements and underpinning subsequent rules and guidelines like the Berlin Rules on Water Resources, the UN Watercourses Convention, and the Draft Articles on the Law of Transboundary Aquifers.

Additionally, integrated water resources management (IWRM) has become an influential concept, emphasizing cross-sectoral, participatory, ecosystem-based management of water at the river basin scale. IWRM underpins recent transboundary water agreements and River Basin Organizations.

UN Watercourses Convention

The 1997 UN Convention on the Non-Navigational Uses of International Watercourses represents the most authoritative global framework consolidating international customary law on transboundary freshwater bodies like rivers, lakes, and aquifers. Key provisions include:

Article 5: Equitable and reasonable use with a non-exhaustive list of relevant factors to consider.
Article 7: Obligation not to cause significant harm to other watercourse states.
Article 8: Duty to cooperate on basis of sovereign equality, territorial integrity, mutual benefit, and good faith.
Article 9: Regular exchange of data and information.
Article 12-16: Notification and consultation around planned measures that may affect other parties.
Article 24-26: Management and protection of ecosystems.
Article 33-34: Peaceful settlement of disputes through negotiation, mediation, or adjudication.

Though not yet universal, the Watercourses Convention represents an authoritative global framework for cooperation on international waters, applying to non-seagoing waters. It entered into force in 2014 and has 36 state parties so far. Leading the way are African, European, and Middle Eastern nations, while many Asian nations have not joined due to concerns around restricting state sovereignty over shared waters.

Institutions

River basin organizations (RBOs) have emerged as the predominant institutions for cooperative management of major transboundary rivers and lakes globally. They provide forums for joint management, data sharing, development planning, dispute resolution, and implementation of basin-wide agreements. Examples include:

Mekong River Commission (MRC) – advises on management of Mekong River based on 1995 Agreement. Members are Cambodia, Laos, Thailand, Vietnam.
Nile Basin Initiative (NBI) – partnership of Nile riparian states promoting cooperation and sustainable development. Includes Ministerial Council, Technical Advisory Committee, and Secretariat.
Niger Basin Authority (NBA) – oversees development programs, data exchange, and dispute resolution around Niger River Basin. Members are 9 riparian countries.
International Commissions for Protection of the Danube, Rhine, and Elbe – established in 19th century to oversee navigation and transport, expanded to wider transboundary water issues.

At the global level, the UN plays a central role in the evolution of international water law and cooperation through development of agreements like the Watercourses Convention and initiatives like UN Water coordinating water activities across UN agencies. UN Regional Commissions have also advanced cooperation in their respective regions, along with sub-regional bodies like the Mekong River Commission and African Ministerial Council on Water.

Key Agreements and Cases by Region

The following are some of the most influential transboundary water agreements and legal cases in different world regions that have shaped modern international water law.

Europe/Northern Hemisphere

Danube Protection Convention (1994) – comprehensive basin-wide cooperation on protection of water, ecosystems, and sustainable use.
Rhine Convention (1999) – ecological rehabilitation and integrated management of the Rhine.
Great Lakes Water Quality Agreement (1972/1978/2012) – US-Canada agreement on restoring and protecting the waters of the Great Lakes basin.
Lac Lanoux Arbitration (1957) – France vs. Spain arbitration that helped establish principles of reasonable and equitable use and duty to negotiate in good faith to reconcile conflicting uses.

Africa

Niger Basin Authority (1980) and Water Charter (2008) – framework for cooperation among 9 Niger basin states to promote integrated management.
Nile Basin Initiative (1999) – partnership of Nile riparian states to develop river cooperatively and sustainably. Led to the still-pending Cooperative Framework Agreement.
Lake Chad Basin Commission (1964) and Water Charter (2012) – joint institution for managing Lake Chad basin shared by 8 countries.
Gabčikovo-Nagymaros Case (1997) – Landmark ICJ case between Hungary and Slovakia on construction of dams on the Danube. Court ruled on principles of equitable use, obligation not to cause harm, and duty to negotiate.

Asia

Mekong Agreement (1995) – framework agreement between lower Mekong basin countries to cooperate via Mekong River Commission. Emphasizes reasonable and equitable use.
Mahakali Treaty (1996) – between India and Nepal on integrated management of the Mahakali River. Includes specific water allocations and hydropower provisions.
Indus Waters Treaty (1960) – Partitioned control over Indus rivers between India and Pakistan. One of the most robust international water treaties.

South America

Amazon Cooperation Treaty (1978) – Framework agreement promoting sustainable development of the Amazon Basin in equitable and mutually beneficial way.
Guarani Aquifer Agreement (2010) – Joint management and protection of the Guaraní Aquifer System shared by Argentina, Brazil, Paraguay and Uruguay.
Case Concerning Pulp Mills on the River Uruguay (2010) – ICJ case between Argentina and Uruguay concerning pulp mill impacts. Court elaborated on concepts like equitable use, procedural rights, and precaution.

Inter-Regional

UNECE Water Convention (1992) – Global framework for transboundary water cooperation and ecosystem protection centered in the UN Economic Commission for Europe but open to all UN members. Entered into force 1996.
UN Watercourses Convention (1997) – As described earlier, it is the primary global treaty consolidating customary international law on transboundary freshwater bodies like rivers, lakes, and aquifers.

Gaps and Future Directions

While international water law and institutions have expanded significantly, a number of gaps remain in effectively governing transboundary waters globally:

Limited participation in global conventions like the UN Watercourses Convention and UNECE Water Convention – only about half of UN member states are parties to them.
Basin agreements lacking or limited in major basins like the Mekong, Nile, and Amu Darya.
Evolving issues like groundwater, ecosystem protection, and climate change resilience are still inadequately addressed in many transboundary water frameworks.
Enforcement and compliance mechanisms are often limited; arbitration or adjudication rarely used to settle disputes.
River Basin Organizations frequently have limited authority, capacity, and funding.
Role of non-state actors from civil society and private sector in transboundary water governance remains limited.

As pressures grow and complexity increases around managing international waters, continued evolution and strengthening of global, regional, and basin-level frameworks for transboundary water cooperation will be crucial. Priorities include wider participation in existing UN conventions, adoption of new or updated basin-wide agreements, and capacity building support for regional institutions and dispute resolution mechanisms. Engaging emerging issues like climate adaptation, expanding stakeholder involvement beyond just governments, and integrating water security with other socio-economic development objectives will also be key to more sustainable and equitable sharing of precious transboundary water resources.

Conclusion

International water law has progressed significantly from customary principles like equitable use to a robust framework anchored in conventions like the UN Watercourses Convention. Basin-specific agreements and institutions have also proliferated, enabling joint management and development planning for major transboundary waters globally. However, with growing water demands and worsening climate impacts, existing governance mechanisms will need to be strengthened and expanded for more resilient and sustainable management of our shared waters. Wider participation in global conventions, adoption of new or updated basin agreements, increased capacity and stakeholder engagement, and integration with development planning will be crucial next steps. Overall, international water law provides an important foundation, but it must continue evolving to meet the complex interdependencies and collective action problems inherent in governing transboundary waters between sovereign states in a changing world. The global significance of getting this right can hardly be overstated.

References

Tanzi, A., McIntyre, O., Kolliopoulos, A., Rieu-Clarke, A., & Moynihan, R., eds. (2021). The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Brill Nijhoff.

Rieu-Clarke, A., & Loures, F. (2013). The UN Watercourses Convention: a milestone in water governance. In The UN Watercourses Convention in force (pp. 1-13). Routledge.

Tarlock, D. (2020). The Future of International Water Law. Leiden, The Netherlands: Brill | Nijhoff.

Eckstein, G. (2010). Water scarcity, conflict, and security in a climate change world: challenges and opportunities for international law and policy. Wis. Int’l LJ, 27, 410.

Salman, S. M. (2016). The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law. Water International, 23(4), 625-640.

Ensor, J. E., Giordano, M., & Butterworth, J. (Eds.). (2022). Governing Africa’s Inland Waters. University of Michigan Press.