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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
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