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The Doctrine of Equitable and Reasonable Utilization of

International Water and Its Application under

International Watercourses Law

By

Wambua Kituku1

1. Introduction

Whereas inland fresh water accounts for only 3% of earth’s water, 90% of this is trapped in

frozen glaziers, underground aquifers, in the soil and atmosphere.2 The rest is found in

rivers and lakes, half of which are shared between 2 or more states while supporting half of

the world’s population.3 Thus, international and transboundary waters (also referred to as

international watercourses) are indeed important in supporting human life and livelihood

activities that are associated with these waters.

In the history of civilizations, control of rivers and their successful utilization in large-scale

irrigation schemes gave rise to “hydrologic” civilizations, which were complex and highly

centralized.4 In order to achieve effective and efficient use of these waters, some societies

(e.g. Assyrians) necessarily resorted to authoritarian rule, while others (e.g. in

Mesopotamia) predicated this on cooperation. Whichever way one looks at it, a modicum of

regulation by an authority was essential in management of these watercourses by early

civilizations. This premise is still valid to date.

Today, the utilization of international watercourses presents profound legal challenges to

the states that share them and hence merits appropriate legal regulation. First, is the whole

question of the extent to which a state can exercise sovereignty over such a river without

prejudicing the rights of other upstream or downstream states. Associated with this

difficulty is the legal definition which states attach to international watercourses and the

legal implications on sovereignty arising from these definitions. Secondly, the nature and

quantum of property rights a state can hold, use and enforce with respect to a particular

international watercourse requires legal regulation. Thirdly, management of waters is

largely a question of redistribution of natural resource given certain physical, economic,

social and environmental constraints.5 Law must therefore intervene to ensure

harmonization of these constraints in yielding a satisfactory outcome.

1 BSc (JKUAT), LL.B, LL.M. and PhD student in environmental law at the University of Nairobi © 2014

2 Kiss A & Shelton D, “International Environmental Law” Ardsley/Nairobi: Transnational Publishers/UNEP, 2004,

p249 3 Sands Phillipe, “Principles of international environmental law”, Cambridge, Cambridge University Press, 2003

(Second edition) p460 4 Benvenisti Eyal, “Collective action in the utilization of shared freshwater: The challenges of international water

resources law”, in The American Journal of International Law, Vol 9 No3 (July 1996) p384 5 Ibid

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This paper explores the doctrine of equitable and reasonable use of international

watercourses as a critical substantive and procedural principle organizing and guiding legal

frameworks on management of international water courses. It looks at the definition,

content and application of the doctrine in various international watercourses treaties. The

paper concludes that indeed, the doctrine provides the principal organizing framework for

treaty law on shared water courses- both at international and regional levels. However, the

normative content of the doctrine remains vague leading to a rather contextual approach to

its application, when balancing the rights and interests of contending riparian states. There

is need to improve the implementation of the doctrine by providing for public participation

and adoption of a human rights approach in determination of equitable and reasonable uses.

2. Doctrine of equitable and reasonable utilization: a conceptual background

Proper understanding of the doctrine of equitable and reasonable utilization requires

interrogation of two related doctrines; territorial sovereignty and territorial integrity.

Territorial sovereignty holds that states have absolute sovereignty over waters (including

international watercourses) within their territory.6 It confers a state the right to abstract

water in unlimited quantities and affect the quality of such water without due regard to the

downstream states.7 It can be seen as an extension of a state’s political sovereignty over its

territory, which gives it the right of use and abuse of property therein. It is also seen to

favour the upstream states and is therefore resisted by downstream states. The doctrine

was advanced by the US Attorney General, Judos Harmon (thus Harmon Doctrine), in

connection with the dispute between the US and Mexico over the former’s diversion of the

shared River Rio Grande to the detriment of users in cities inhabited by the latter state.

However, Harmon Doctrine has been widely dismissed and is not regarded as part of

customary international law as it is not backed by enough state practice.8 However, it has

been observed that states tend to invoke it whenever disputes or negotiations arise.9

Territorial integrity doctrine on the other hand is the obverse of territorial sovereignty and

confers downstream states with the right to a full flow of waters of natural quality.10 In its

practical application, this doctrine is meant to safeguard the downstream state from

unilateral actions of an upstream state that might prejudice the volume and quality of

waters in a shared international watercourse. Thus, it prohibits excessive abstraction and

pollution of shared watercourses by upstream states, in a matter that is likely to interfere

with the territorial integrity of the downstream state. The doctrine can be construed as a

legitimate constraint to the political sovereignty of an upstream state by a downstream

state, with the latter conferred with a veto over the former. Such a veto is derived from the

6 Hunter D, Salzman J & Zaelke D, “International environmental law and policy”, New York: Foundation Press,

2002 (Third edition, 2007) p875 7 Birnie P, Boule A. & Redgwell C, “International law & the environment”, Oxford, Oxford University Press, 2009

(Third Edition) p540 8 Ibid, Since Harmon formulated this doctrine, the US has never invoked it in its water treaties with Mexico and

Canada, indicating domestic skepticism over its validity. 9 Sands op cit p876; India has invoked the doctrine in its disputes with Pakistan over utilization of water from R.

Indus 10

Ibid and Hunter et al op cit p876

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doctrine of prior appropriation, which holds that previously used quantities of a watercourse

become the property of that riparian state.11 Reduction of water quantities flowing to a

downstream state therefore violates the property rights of such a state. However, the

doctrine has limited support in customary international law and by state practice.12 In the

Lac Lanoux arbitration for instance, the arbitral tribunal dismissed Spain’s attempted to stop

France from diverting waters of Carol River for purposes of constructing a hydroelectric

plant, on the account that the latter state had demonstrated that it would return the same

volume of water back to the river.13 The objections by Spain to France’s actions were

therefore viewed as an unwarranted and legally unsustainable veto.

It can be argued though, that this doctrine can find some legal refuge from the international

customary law principle embodies in the maxim sic utere tuo that prohibits states from

allowing the use of their territory in a manner that is likely or actually results in harm to the

environment of neighboring states. Any acts by an upstream state that lower volume or

quality of water to the downstream state can be viewed as violating this customary rule of

international law. It has therefore given rise to the principle of “significant harm”, which

seeks to protect downstream states from deleterious acts of upstream states which may

prejudice their riparian rights.

The equitable and reasonable use doctrine is a compromise of the aforementioned two

doctrines, in that it treats international watercourse as “shared resources” and hence

subject to equitable utilization by riparian states. It reconciles territorial sovereignty of

upstream states over international watercourses with the territorial integrity of downstream

states, by introducing the concept of shared sovereignty by all states in respect to the

shared watercourses. In this regard, the doctrine acknowledges sovereign equality of the

states sharing a watercourse, but confers equitable shares to the uses of the said

watercourses. This doctrine also consorts with the concept of limited territorial sovereignty

which allows each country to make reasonable use of water within its jurisdiction while

ensuring other riparians receive their due share.14

Aspects of this doctrine were recognized in the River Oder case, which entailed a dispute

over navigation rights in respect to a Polish river. In that case, the Permanent Court of

International Justice held that the use of international watercourses for purpose of

navigation was subject to international law and that this gave rise to a community of

interests in relation to the states involved in the use of that river, hence a basis for a

common legal right thereto.15 In the Lac Lanoux arbitration, the Court also recognized that

an upstream state (France) has a duty to consult a downstream state (Spain) whenever

they intend to utilize shared waters in a manner that may affect the interests of the latter

state.

11

Benvenisti op cit p398 12

Birnie et al op cit, p541 13

24ILR 101 (1957) cited in Sands op cit p463 14

Okidi C, “Nile waters: The threat of war is not justifiable in modern times”, in Environmental Policy and Law,

Vol 44/1-2, 2014p178 (176-180) 15

PCIJ Ser A No 23 (1929) cited in Birnnie et al op cit p542

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The doctrine was also affirmed in the Gabcikovo Nagymaros case, involving a dispute

between the Czech and Hungary over diversion of sections of the shared Danube River. In

finding the Czech at fault for unilateral diversion of section of the river to create a dam, the

Court held…” Czechoslovakia, by unilaterally assuming control of a shared resource and

thereby depriving Hungary of its right to an equitable and reasonable share of the natural

resources of the Danube…failed to respect the proportionality which is required by

international law”.16

3. Normative Content of Doctrine of Equitable and Reasonable Utilization

The equitable and reasonable use doctrine is provided for under Article 5 and 6 of the UN

Convention on Use of International Watercourses for Non-Navigational Uses (1997 UN

Convention on International Watercourses). Under Article 5, the treaty establishes the

doctrine as both substantive and procedural norm. As a substantive norm, the doctrine

creates a substantive right to equitable and reasonable use of international waters, as

affirmed in the Gabcikovo Nagymaros case. Riparian states are therefore mandated to use

shared watercourses in an equitable and reasonable manner with a view of obtaining

optimal and sustainable utilization thereof consistent with protection of the said

watercourse.17 It should be noted however that a riparian state’s equitable share is rather a

usfructuary right to the beneficial uses of a shared watercourse and not an equal share,

which is determined by balancing of various factors.18

As a procedural norm, the treaty establishes the procedural right of riparian states to

participate in the use and management of shared watercourses in an equitable and

reasonable manner, with a duty to cooperate same.19 Riparian states cannot therefore

exclude the participation of a fellow riparian state in the management of a shared

watercourse. Likewise, the burdens and costs of managing a shared watercourse are to be

equally shared in an equitable manner.

The duty to cooperate has given rise to the concept of common management of shared

watercourses.20 This concept entails viewing such watercourses as integrated system of

rivers and its sources, whose management therefore requires an integrated approach. The

concept also requires riparian states to manage such courses through establishment of joint

institutions. Such institutions provide framework for undertaking scientific research,

monitoring, negotiation, dispute resolution and decision-making.

16

The Case Concerning the Gabcikovo-Nagymaros Project (1997) ICJ Reports 7 para 85 17

Article 5 (1) of 1997 UN International Watercourses Law 18

Fisher Douglas, “Law and governance of water resources: The challenge of sustainability”, Cheltenham: Edward

Elgar Publishing, 2009, p119 19

Article 5 (2) ibid 20

Birnie et al op cit p544

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There persists controversy as to whether the doctrine of equitable and reasonable use is

limited by the concept of significant harm. 21 One school of thought argues that the use of

shared watercourses in a manner that avoids significant harm to downstream riparian state

is compatible with the obligations of equitable and reasonable use.22 Otherwise, such harm

would be deemed as inequitable and unreasonable. The second school argues that

significant harm is the “grundnorm” of shared watercourses law and as such, equitable and

reasonable use is simply one among the factors to be considered when establishing if

significant harm has occurred in the use of a watercourse.23 It is however clear that the

doctrine remains the preeminent guidance for determining allocation of water quantities

among states, whereas the significant harm takes priority in determining water quality in

shared watercourses.24 However, decoupling water quality from quantity is sometimes

problematic, given that pollution may become significant if water quantities drop

significantly. The use of the term “significant” has also invited criticism as it is viewed to

amount to tautology in light of the principle contained in the maxim lex de minimis, that is,

law does not concern itself with trivia.25 Therefore any harm to be considered by law should

be significant and not trivial.

Under Article 6, the Convention provides for several factors to be considered in determining

the equitable and reasonable use of shared watercourses. First, states must consider such

natural factors as geography, hydrology and ecology. Data and information regarding these

factors is necessary in order to determine for instance the flow of water (present and

future) and likelihood of the same being affected by climatic changes. The effect of these

factors on flow of water is also necessary in order to establish appropriate use. Secondly,

the social and economic needs of the states concerned are important. Social needs could

include cultural attachment of people to water courses, whereas economic needs point to

economic activities and livelihoods supported by the same. A river in question could be

supporting food production, electricity generation, supporting trade and transport through

navigation, tourism industry etc. impact on these activities could easily spark serious

disputes among riparian states. Thirdly, demographic factors have to be considered. This

entails looking at the population (current and future) dependent on the river and the impact

of any change of use on the people. Riparian states with high population growth rates and

low availability of arable land are most vulnerable and require due consideration.

Fourthly, the existing and potential uses of the said waters will be considered to establish

any effect on the same. Any decision that adversely affects current uses without

compensation cannot be deemed as fair. Such uses need also to take into account future

generations and hence the use of the term “potential” uses. Fifth, is the conservation,

protection, development and economy of use of watercourses. This factor looks at the

21

See Utton Albert, “Which rule should prevail in international water disputes: That of reasonableness or

significant harm”, Natural Resources Law Journal, Vol 25 No.2 of 2002 22

See Article X of 1966 Helsinki Rules on International Watercourses 23

See Utton op cit p 24

See Bourne Charles, “Draft International Law Commission articles on law of international watercourses:

Principles and planned measures”, in Colorado Journal of International Law & Policy, Vol 143, 1999 p77-9 25

Okidi Charles, “Preservation and protection under the Draft 1991 ILC Articles on law of international

watercourse”, in Colorado Journal of International Law & Policy, Vol 143, 1999 p153

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amount of water required to ensure ecosystem integrity of river basin and its effect on any

change of use. The implication of this factor is also to promote economic use of shared

waters and avoiding wastage. Thus, upstream states can seek to abstract more water if

they are able to convince and perhaps assist downstream states to economize on use of

their respective share. Sixth and lastly is the availability of alternatives of comparable value

to an existing or potential use. Where alternatives that are more valuable than existing

uses, a change of use will be preferred and vice-versa.

From the foregoing, the following critical issues arise from the assessment of the doctrine

and its content. First, whereas the doctrine is considered vague and imprecise, the above

factors provide an objective framework that makes it possible for the balancing of various

interests in order to arrive at a mutually agreeable position. The factors are broad enough

to form a good basis for negotiations aimed at resolving any dispute with reasonable and

equitable outcomes. Secondly, no priority is accorded to any of the said factors. Instead,

each factor is weighed against the other and this allows for balancing of all interests using a

common plane. However, it has been argued that due priority should be accorded to uses

that satisfy vital human needs and rights of citizens and communities.26 Such a rights-based

approach makes international water law become more people-centred that state-centric.

Similarly, uses that lead to environmental harm or interfere with ecological integrity of a

shared watercourse should be frowned upon.

Thirdly, the list is not exhaustive. Riparian states are free to introduce new factors based on

peculiar circumstances of their respective contexts. This could promote resolution of

disputes whose factors are more localized and unanticipated by the Convention. Fourthly,

since most international water disputes are resolved through internal rather than third party

settlement mechanisms (courts), there is limited judicial elaboration of these principles.27

This gives parties flexibility to interpret these factors and apply them accordingly to their

contexts.

4. Application of Equitable and Reasonable Use Doctrine in International Treaties

The development of the doctrine can be said to have followed two distinct but related paths

of international law evolution; the work of the International Law Association (ILA) and the

UN International Law Commission.

4.1. The 1966 Helsinki Rules of ILA

The doctrine was first advanced the International Law Association in its Madrid Declaration

of 1911, where it called for prohibition in activities that may cause harm to other riparian

states.28 In the period after the 2nd World War, a number of water-related disputes emerged

in Africa (Egypt v Sudan), Middle East (Israel v Arab states) and North America (Canada v

26

Hunter et al op cit p890 27

Birnie et al op cit p543 28

Salman Salman, “Helsinki Rules, UN Watercourses Convention and Berlin Rules: Perspectives on international

water law”, in Water Resources& Development,” Vol 23 No 4, 2007 p628 (pp625-640)

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US). These disputes pitted upstream v downstream riparian states over allocation of water

shares and therefore questions were raised over the existence of international customary

law norms regarding these disputes. In response to this situation, the ILA adopted a

resolution at its 1954 conference, establishing a committee to study the legal, economic and

technical aspects of the issues.29The work of this committee culminated in the adoption of

the 1966 Helsinki Rules on the Uses of the Waters of International Rivers (or simply “the

1966 Helsinki Rules”).

The 1966 Helsinki Rules adopted the drainage basin approach and are applicable to the

entire watershed limit of an international river, including surface and underground water

flowing thereto.30 The basin approach was however criticized for its rather large territorial

coverage and thus seen to be unduly limiting internal sovereignty of riparian states. The

Rules were the first to comprehensively expound on the doctrine of equitable and

reasonable use, and uphold the right of riparian states to “… reasonable and equitable share

in beneficial uses of a basin”.31 The factors entailing the doctrine were set out in Article V

and these provided the basis of the one adopted in the 1997 UN Convention on

Watercourses. The Rules call for a holistic approach to weighting of factors and do not

accord any factor priority over the others. Article VIII gave basis for recognition and

termination of uses, based on abandonment or incompatibility with prior uses. These factors

however were not forward-looking in the sense that future (potential uses) and changes in

natural and climatic factors were not incorporated. Protection of the environment was also

not deemed a factor for determining the elements of the doctrine. The Rules created a basis

of the significant harm principle, by calling for prevention and abatement of pollution which

causes pollution to the water basin and compensation for the same. These provisions can be

said to make the significant harm principle subservient to the doctrine of equitable and

reasonable use.32

At the end of the 1966 Helsinki Conference, members of ILA agreed to establish a new

committee on international water resources to continue with the task of refining and further

codification of various aspects of water resources law33. This culminated in the adoption of

the 1986 Seoul Rules on International Groundwaters. The 1986 Rules extended the 1966

regime on water basin management to groundwaters and provided for guidance on

protection of the same. In 2004, the ILA adopted Berlin Rules on Watercourses, whose main

feature was to accord vital human needs criterion priority over other factors to be

considered when determining equitable and reasonable uses. The rules also give equal

weight to both the doctrine and the significant harm rule while providing for maintenance of

ecological integrity of water causes and minimization of environmental harm as additional

29

For me, see Bourne Charles, “International Law Association’s contribution to international water law”, in Natural

Resources Law Journal, Vol 36 No.2 of 2002 accessed from http://lawlibrary.unm.edu/nrj/36/2/02_bourne_ila.pdf

on 19th July 2014 30

See Article I & II of 1966 Helsinki Rules 31

Article IV ibid 32

A close reading of Article X, ibid, reveals that the provisions on significant harm principle are to be viewed as

consistent with the doctrine of equitable and reasonable uses. 33

Ibid p

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factors to be considered. Through these changes, the Berlin Rules have addressed some of

the major weaknesses associated with the 1966 Helsinki Rules.

4.2. The 1997 UN Convention on Watercourses Law

We shall now turn to the UN International Law Commission (UNILC)- led processes that led

to adoption of treaty on watercourses law. In 1970, the United Nations General Assembly

passed a resolution mandating the UNILC to inquire develop and codify international law on

water courses along the lines of the 1966 Helsinki Rules.34 Through various conferences, the

UNILC eventually submitted a draft articles of a framework convention for consideration by

the UN in 1994. The convention was eventually adopted in 1997 by 103 state parties but

only received the requisite 35 ratifications on 19th May 2014 and will therefore enter into

force on 17th August 2014.35

The convention is applicable to international watercourses including surface rivers and

underground waters connected thereto, rather than water basins (contained in 1966

Helsinki Rules), reflecting concerns by parties that the latter term was too broad as

imposing unwarranted limits to their respective territorial sovereignty since a basin covers a

wider geographical area than the watercourse itself. The treaty’s definition of underground

water does not include transboundary aquifiers which are not connected to surface waters,

as contained in the 2004 Berlin Rules of ILA.

As explained hereinabove, the doctrine of equitable and reasonable use is provided for

under Articles 5 & 6. The doctrine is provided for as a substantive and procedural norm

under Article 5. Article 7 establishes the significant harm principle and requires parties to

prevent causing significant harm to others states while utilizing shared watercourses and

where such harm occurs, the offending state is required to take such measures as

abatement, mitigation and compensation to the affected state. It would therefore appear

that principle is subordinate to the doctrine of equitable and reasonable use, since the

wording of Article 7 seems to suggest that some level of pollution is tolerable (for as long as

it does not cause significant harm) and that harmful conduct related thereto is to have due

regard to Articles 5 & 6. Thus where such harm is significant, it triggers the application of

the doctrine in determination of whether or not activities cause the harm are equitable and

reasonable.

The treaty has invited several criticisms. First, the treaty (does not replace existing treaties

if it comes into force, but rather gives parties thereto the option of being guided by its

contents) relies too heavily on voluntary compliance and cooperation while lacking sanctions

as enforcement mechanisms. Thus, the consequences for a state that goes against the

doctrine of equitable and reasonable use are not clear and subject to negotiations with the

offended state(s). Secondly, the treaty is too state-centric, with little or no room for public

participation. Thus, the factors to be considered and balanced during the determination of

equitable and reasonable uses are presumably left to states to decide. Thus, if a

34

Kiss & Shelton op cit p252 35

See http://www.internationalwaterlaw.org/documents/intldocs/watercourse_status.html accessed on 20th July

2014

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government enters into a lopsided agreement to the detriment of its respective citizens,

they have no recourse to justice under the circumstances. Thirdly, whereas the treaty

establishes a procedural right for riparian states to participate equitably in management of

shared watercourse, it does not provide for financial mechanisms and incentives for weaker

states to realize this right. The challenges notwithstanding, the treaty has inspired the

development of regional treaties that reflect the norms contained therein as discussed

hereinbelow.

4.3. Regional Watercourses Treaties- Nile Basin Treaty

We shall now briefly look at one regional treaty (due to constrains of space) that came into

force after the 1997 UN Convention on Watercourses; the Agreement on the Nile Basin

Cooperative Framework (Nile Basin Treaty). It is however important to note that literature

exists to showing that other regional treaties in Europe, Africa and Asia have to a great

extent espoused the norms contained in the 1997 UN Convention and in particular, the

doctrine of equitable and reasonable use.

The Nile Basin Treaty was developed in response to long standing disagreements between

the lower riparian states (Egypt and Sudan) and upper riparian states on whose territories

the tributaries of the River Nile originate or straddle (Ethiopia, Uganda, Eritrea, Uganda,

Tanzania, Rwanda, Burundi and lately, South Sudan). The source of the contentions was the

1929 Nile Treaty entered into between Egypt and colonial power Britain, which secured the

Nile to Egypt by limited the rights of Sudan and rejecting those of other riparian states.36

When Sudan gained independence from Britain, it managed to renegotiate in 1959 the 1929

agreement with Egypt, thereby increasing its allocation of the Nile Waters.37

When the upstream riparian states gained independence, they began raising their

reservations and opposition to the 1929 and 1959 agreements on two key grounds among

others.38 First, the Nile Agreements were entered into by the colonial government on their

behalf and that upon acquiring independence, they were not bound by customary

international law to succeed Britain in those agreements. Therefore, the doctrine of rebus

sic stantibus prevailed, owing to fundamental change in circumstances attributable to

acquisition of independence. Secondly, the allocation of waters to both Egypt and Sudan by

the two agreements were inequitable and unreasonable and thus could not be justifiable

under prevailing international customary law norms on shared watercourses.39

36

See Okidi C (2014) op cit, who reveals that the first agreement over the quantitative use of Nile waters was made

in 1891 by the British after taking over Egypt from Ottoman Empire. 37

Ng’wandu Pius, “Challenges and prospects for a new Nile water agreement: The Nile River Basin Commission”,

Nairobi, ACTS, 2008 p3 38

See ibid, p39-50 for detailed arguments on this matter 39

Okidi C (2014) op cit p179 argues that the actions of Sudan and Egypt were recent and unilateral because those

agreements were entered into by Britain to secure their interests in irrigated agriculture. Prior to this claims by Egypt

and Sudan to the Nile waters rested on the Harmon doctrine and doctrine of limited sovereignty

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These grievance set forth a series of initiatives that eventually culminated in the

establishment of the Nile Basin Initiative in 1991.40 The NBI entered into a series of

protracted negotiations that eventually led to the drafting and submission of the Draft Nile

Basin Treaty in 2007 to the assembly of riparian states. The Treaty was adopted and

eventually came into force in 2013 after Burundi became the 6th state party to deposit an

instrument of ratification. The treaty embraces both definitions of both water courses and

water basins the UN Convention watercourse law and 1996 Helsinki Rules respectively.41

Equitable and reasonable use doctrine is provided for as a general principle (Art. 3) but also

substantive norm (Art. 4). As a substantive norm, the treaty borrows heavily from the 1997

UN Convention but also incorporates the Helsinki Rules formulation of right to equitable and

reasonable share to beneficial uses of the watercourse. It provides for factors to be used in

balancing interests which reflect Article 6 of 1997 UN Covention but in addition, stresses the

contribution of each basin state to the water of the Nile and scope of drainage area under its

territory as additional considerations.

Whereas the treaty replicates the significant harm principle (Art 5), it does not however give

it priority over the doctrine of equitable and reasonable use. This leads one to the inference

that the treaty has eschewed from resolving the problem of reconciling the two competing

legal issues. This leaves the doctrine rather vague and subject to some future

interpretation, hence disputation. The treaty creates the Nile Basin Commission as the joint

institution which among other things will determine question of equitable and reasonable

use. In a bid to reconcile the historical claims by downstream states versus equitable claims

by upstream states, the treaty crafted the principle of water security that guarantees all

riparian states to access to water of the Nile for their respective development. However, the

implication of this right to the interests of downstream states is a matter that was deferred

following protests by Egypt and Sudan and is to be determined by the Commission within 6

months after coming into operation.42

5. Conclusion

This paper has explored the definition of the doctrine of reasonable use and equitable

development. The doctrine has historically emerged as a result of the need to reconcile the

competing needs and demands of downstream and upstream riparian rights over equitable

sharing of shared watercourses. With time, the definition of the doctrine has broadened to

include (though with varied qualifications) the need to reconcile obligations of riparian

states not to cause significant harm by exercising due diligence as part of their equitable

and reasonable obligations to the use of shared watercourses. However, the normative

content of the doctrine remains vague and its application is subject to balancing of various

factors that reflect the issues that may affect competing or changing uses of shared waters.

The paper concludes that the doctrine has been the organizing principle for the evolution of

treaty law on shared watercourses. It is reflected in both the 1997 UN Convention on

International Watercourses, the non-binding 1966 Helsinki Rules and various regional

40

The preceding initiatives between 1960s-1990 were Hydrometerological Project, Kagera Basin Organization,

UNDUGU Group and TECCONILE 41

Article 2 of Nile Basin Treaty 42

Article 14 (b) used the term “significant” favoured by upstream states whereas Egypt and Sudan preferred the

term “adversely” in relation to prohibition of activities that may interfere with water security of downstream states

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treaties, including the Nile Basin Treaty, governing use of shared watercourses. However,

recent legal developments have brought to the fore the need to ensure due priority is

accorded to human rights concerns and environmental protection and significant harm when

determining equitable and reasonable uses.

With the coming to force of the UN Convention watercourse law, it is therefore interesting to

see how state parties implement the doctrine, in light of recent efforts to modify the same,

for instance through the 2004 Berlin Rules. The fact that most shared watercourses law are

state-centric, it is important for state parties to work towards enhancing public participation

and involvement of non-state actors (within the framework of joint institutions) in the

elaboration and determination of the normative content of the doctrine. The impact of the

Convention on existing and future shared watercourses law will also attract immense.

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6. Bibliography

6.1. Books

1. Kiss A & Shelton D, “International Environmental Law” Ardsley/Nairobi: Transnational

Publishers/UNEP, 2004

2. Sands Phillipe, “Principles of international environmental law”, Cambridge,

Cambridge University Press, 2003 (Second edition)

3. Hunter D, Salzman J & Zaelke D, “International environmental law and policy”, New

York: Foundation Press, 2002 (Third edition, 2007)

4. Birnie P, Boule A. & Redgwell C, “International law & the environment”, Oxford,

Oxford University Press, 2009 (Third Edition)

5. Fisher Douglas, “Law and governance of water resources: The challenge of

sustainability”, Cheltenham: Edward Elgar Publishing, 2009

6. Ng’wandu Pius, “Challenges and prospects for a new Nile water agreement: The Nile

River Basin Commission”, Nairobi, ACTS, 2008

6.2 Articles

1. Benvenisti Eyal, “Collective action in the utilization of shared freshwater: The

challenges of international water resources law”, in The American Journal of

International Law, Vol 9 No3 (July 1996)

2. See Utton Albert, “Which rule should prevail in international water disputes: That of

reasonableness or significant harm” Natural Resources Law Journal, Vol 25 No.2 of

2002

3. Okidi Charles, “Preservation and protection under the Draft 1991 ILC Articles on law

of international watercourse”, in Colorado Journal of International Law & Policy, Vol

143, 1999

4. Salman Salman, “Helsinki Rules, UN Watercourses Convention and Berlin Rules:

Perspectives on international water law”, in Water Resources& Development,” Vol 23

No 4, 2007

5. Bourne Charles, “International Law Association’s contribution to international water

law”, in Natural Resources Law Journal, Vol 36 No.2 of 2002

6. Okidi C, “Nile waters: The threat of war is not justifiable in modern times”, in

Environmental Policy and Law, Vol 44/1-2, 2014 pp176-180

7. Bourne Charles, “Draft International Law Commission articles on law of international

watercourses: Principles and planned measures”, in Colorado Journal of International

Law & Policy, Vol 143, 1999 pp65-92