The development of international law governing the non-navigational uses of international watercourses: a critical review
Quinn, N. (2009) The development of international law governing the non-navigational uses of international watercourses: a critical review. Masters, University of KwaZulu-Natal, South Africa.
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Although states have entered into agreements regarding shared waters over the last several hundred years, it is only recently that an international framework law has emerged. Progress in this endeavor has been slow. The 1966 Helsinki Rules constituted the first set of rules devised to coherently represent the state of customary international water law, and established the principles of equitable utilization and the obligation to do no significant harm as cornerstones. Transforming these rules into a framework convention took three decades and considerable debate. The assent of 103 nations to the text of the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses was therefore a milestone. The debate leading up to this was characterised by the perennial argument of territorial sovereignty versus the converse principle of prior appropriation. The subsequent behaviour of states with respect to signature and ratification of the Convention suggests that there has been little change in fundamental paradigms. As of November 2008 only 16 nations are party to the Convention, far short of the 35 required for it to enter into force. This dissertation offers a critical review of the genesis and development of the UN Convention, and attempts to identify weaknesses and benefits. Much of the debate, by nations and scholars alike, has focused on the relationship between the two principles of equitable utilisation and no significant harm, the former of which is generally regarded as the primary. The research also considers the extent to which the ILA’s 2004 Berlin Rules, intended as a comprehensive update of the 1966 Helsinki Rules, address these weaknesses. The Rules deal with many of the criticisms, but also introduce a fundamental shift towards a conjunctive management philosophy. The Rules also represent a fundamental shift away from the primacy of the equitable utilisation principle, placing both on equal footing. This has led to criticism of the Rules as moving beyond customary international water law, whilst others have argued that such a paradigm shift is what is required in order to progress towards establishing a coherent framework for international water law.