1 For the Convention, see GA Res. 51/229, annex (May 21, 1997), 36 ILM 700 (1997). For the vote in the General Assembly, see text following note 49 infra. See generally Attila, Tanzi, Codifying the Minimum Standards of the Law of International Watercourses: Remarks on Part One and a Half , 21 nat. Resources F. 109 (1997)Google Scholar; and John, R. Crook & Stephen, C. McCaffrey, The United Nations Starts Work on a Watercourses Convention , 91 AJIL 374 (1997)Google Scholar.

2 GA Res. 49/52, para. 3, UN GAOR, 49th Sess., Supp. No. 49, Vol. 1, at 293, UN Doc. A/49/49 (1994), adopted by a vote of 143–0-8. The three-week session envisaged in that resolution (Oct. 7–25, 1996) proved insufficient for the working group to complete its task. See Report of the Sixth Committee, UN Doc. A/51/624 (1996). Accordingly, a second session, this time of two weeks, was held in the spring of 1997 (Mar. 24-Apr. 4, 1997). GA Res. 51/206 (Dec. 17, 1996).

3 Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 197, UN Doc. A/49/10 (1994) [hereinafter 1994 ILC Report]. See Stephen, C. McCaffrey, The International Law Commission Adopts Draft Articles on International Watercourses , 89 AJIL 395 (1995)Google Scholar.

4 GA Res. 49/52, supra note 2. The latter entitlement had the effect of allowing certain important riparian states, such as Switzerland, to participate in the negotiations even though they are not members of the United Nations.

5 See note 1 supra.

6 Verbatim record, 99th plenary meeting, UN Doc. A/51/PV.99, at 5, 12 (1997) (Pakistan and Rwanda, respectively) [hereinafter Verbatim record].

7 A recorded vote was held on Article 3 in the working group, which resulted in its adoption by 36 to 3 (Ethiopia, France and Turkey), with 21 abstentions. See UN Doc. A/C.6/51/SR.62, at 6, para. 40 (1997).

8 Some delegations believed harmonization should have been required. See, e.g., the statement of Ethiopia in explaining its vote on the Convention, Verbatim record, supra note 6, at 9–10. Ethiopia’s position is understandable. It contributes, through the Blue Nile, the great bulk (ranging between 70 and 90%) of the water reaching Sudan and Egypt. Yet the 1959 Agreement between those two countries purports to divide the entire flow of the Nile between them, although they are the two lowest riparians and contribute a negligible amount of water to the river. Agreement for the Full Utilization of the Nile Waters, Nov. 8, 1959, UAR–Sudan, Art. 1, 453 UNTS 51. See, e.g., Robert, Collins, The Waters of the Nile: Hydropolitics and the Jonglei Canal, 1900–1988, at 18–25 (1990)Google Scholar.

9 Cf. the “statement of understanding” concerning Article 3 noted by the chairman of the Working Group of the Whole: “(a) The present Convention will serve as a guideline for future watercourse agreements and, once such agreements are concluded, it will not alter the rights and obligations provided therein, unless such agreements provide otherwise.” Statements of Understanding Pertaining to Certain Articles of the Convention, in Report of the Sixth Committee convening as the Working Group of the Whole, UN Doc. A/51/869, at 5 (1997), reprinted in 36 ILM 719 (1997). The effect of later, specific agreements between parties to the Convention would be governed by Article 30 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

10 The ILC’s text of paragraph 2 had provided that a potentially affected watercourse state “is entitled to participate in consultations on, and in the negotiation of, such an agreement, to the extent that its use is thereby affected, and to become a party thereto.” 1994 ILC Report, supra note 3, at 215 (emphasis added). According to the Chair of the working group’s Drafting Committee, the words “where appropriate” indicate that “the participation of a third State in consultations with regard to an agreement to be concluded by other watercourse States would not lead in all cases to its participation in the actual negotiation of the text or its becoming a party to the agreement in question.” Statement by the Chairman of the Drafting Committee, Professor Lammers, introducing the report of the Drafting Committee, UN Doc. A/C.6/51/SR.24, at 4 (1996).

11 Statement by the Chairman of the Drafting Committee, supra note 10, at 4.

12 These latter are dealt with in Article 20. See text following note 35 infra.

13 This is also true of river regulation, dealt with in Article 25.

14 See Statement by the Chairman of the Drafting Committee, supra note 10, at 5.

15 UN Doc. A/C.6/51/NUW/WG/CRP.28 (1996).

16 UN Doc. A/C.6/51/NUW/WG/CRP.53 (1996).

17 UN Doc. A/C.6/51/NUW/WG/CRP.18 (1996). See also the proposal by the United Kingdom, UN Doc. A/C.6/51/NUW/WG/CRP.54 (1996).

18 Helsinki Rules on the Uses of the Waters of International Rivers, Art. V, para. 3, 52 International Law Association, Conference Report 484 (1966). The only change is the substitution of the word “use” for “share.”

19 See UN Doc. A/C6/51/SR.62, at 3, para. 7 (1997).

20 The two other principal changes were the addition of the phrase “in their territories” and the concept that states should “prevent” harm to other states.

21 Two of the agreements cited by the ILC in its commentary to Article 7 in support of the due diligence obligation employ the precise expression “all appropriate measures.” 1994 ILC Report, supra note 3, at 238, 239 (citing Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, Art. 2, 26 ILM 1529 (1987), and, significantly, Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Mar. 17, 1992, Art. 2(1), 31 ILM 1312 (1992)).

22 See Draft articles on State responsibility adopted on first reading, Arts. 20, 21, Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 125, 132, UN Doc. A/51/10 (1996) [hereinafter 1996 ILC Report]. The ILC’s commentary to Article 7 states that its text was likewise intended to impose only an obligation of conduct. 1994 ILC Report, supra note 3, at 237.

23 Lake Lanoux (Fr. v. Spain), 12 R.I.AA. 281, 306, para. 11, translated in 24 ILR 101, 128 (1957).

24 See, e.g., Water in Crisis (Peter, H. Gleick ed., 1993)Google Scholar.

25 See text at note 27 infra.

26 For example, paragraph 2 requires the state causing the harm to “take all appropriate measures,” having “due regard for the provisions of articles 5 and 6”—i.e., the provisions requiring equitable utilization—”in consultation with the affected State,” to eliminate “or mitigate” the harm, and to “discuss the question of compensation,” “where appropriate.”

27 See [1991] 2 Y.B. Int’l L. Comm’n, pt. 2, at 67, UN Doc. A/CN.4/SER.A/1991/Add.1 (Part 2). That version consisted of a single one-sentence paragraph: “Watercourse States shall utilize an international watercourse in such a way as not to cause appreciable harm to other watercourse States.” That the 1991 version of Article 7 prevailed over the equitable utilization rule of Article 5 in the event the two came into conflict is evident from the commentary to Article 7, initially adopted as Article 8. For the commentary, see [1988] 2 Y.B. Int’l L. Comm’n, pt. 2, at 35–41, UN Doc. A/CN.4/SER.A/1988/Add.1 (Part 2).

28 See note 26 supra.

29 1994 ILC Report, supra note 3, at 236. In its commentary to Article 7, the ILC explained that the article sets forth “a process aimed at avoiding significant harm as far as possible while reaching an equitable result in each concrete case.” Id.

30 Report of the Sixth Committee, supra note 9, at 5, 36 ILM at 719.

31 Cf. the draft articles in Report of the Working Group on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, 1996 ILC Report, supra note 22, at 235. See also Draft articles on State responsibility, Art. 35, Reservation as to Compensation for Damage, id. at 138.

32 See Report of the Sixth Committee, supra note 9, at 5, 36 ILM at 719.

33 Three that did not were Ethiopia, Rwanda and Turkey. Verbatim record, supra note 6, at 4 - 5 (Turkey), 12 (Rwanda) and 9 (Ethiopia). In explaining its negative vote on the Convention, Turkey stated that part III introduces a “veto.” Id. at 5. While it is true that the articles provide for a temporary suspensive effect on implementation of measures by the planning state (see Articles 13 and 17), no veto is provided for in part III.

34 The doctrine of “absolute territorial sovereignty,” which would support such unfettered discretion, is epitomized by the “Harmon Doctrine.” See Stephen, C. McCaffrey, The Harmon Doctrine One Hundred Years Later: Buried, Not Praised , 36 Nat. Resources J. 725 (1996)Google Scholar.

35 For example, it added a reference to environmental impact assessment in Article 12 to underline the importance of that process; divided one article into two paragraphs (Article 14) and merged the two paragraphs of another into one (Article 15); and replaced “serious reasons” with “reasonable grounds” in paragraph 1 of Article 18.

36 The system is described generally in McCaffrey, supra note 3, at 401–02.

37 Report of the Sixth Committee, supra note 9, at 5, 36 ILM at 720.

38 1994 ILC Report, supra note 3, at 291–92.

39 Id. See also Stephen, C. McCaffrey, Fourth report on the law of the non-navigational uses of international watercourses, [1988] 2 Y.B. Int’l L. Comm’n, pt. 1, at 205, 238–40 Google Scholar, UN Doc. A/CN.4/SER.A/1988/Add.1 (Part 1); and Johan, Lammers, Pollution of International Watercourses 301 (1984)Google Scholar.

40 See, e.g., George, E. Radosevich, Implementation: Joint Institutional Management and Remedies in Domestic Tribunals (Articles 26–28, 30–32) , 3 Colo. J. Int’l Envtl. L. & Pol’y 261, 262 (1992)Google Scholar (commenting on Article 24, which was previously numbered Article 26). But cf. Sergei, V. Vinogradov, Observations on the International Law Commission’s Draft Rules on the Non-Navigational Uses of International Watercourses: “Management and Domestic Remedies,” id. at 235, 241 Google Scholar (apparently approving of the generality of the article).

41 A potential compromise text developed in the working group’s Drafting Committee during its session in the fall of 1996 drew reservations by several states, including India, Russia and Tanzania. See Crook & McCaffrey, supra note 1, at 377.

42 See proposals by the Russian Federation for Article 32, UN Doc. A/C.6/51/NUW/WG/CRP.61 (1996).

43 India, for example, stated in explaining its vote that Article 32 presupposes the economic integration of the states involved. Verbatim record, supra note 6, at 9. See also the statement of Tanzania, id. at 3–4.

44 E.g., China and India. Id. at 7 (China) and 9 (India).

45 E.g., France, Israel (effectively upstream on the Jordan) and Rwanda. These states, together with China and India, generally maintained that the principle of free choice of means should have been followed in Article 33. Id. at 8 (France), 11 (Israel) and 12 (Rwanda). In a separate vote on Article 33 in the working group, the following five countries voted in the negative: China, Colombia, France, India and Turkey. The tally was 33–5-25. See UN Doc. A/C.6/51/SR.62, at 10, para. 86 (1997).

46 The vote was 50–4 (China, Egypt, Ethiopia and Turkey) -7. The results of the indicative vote are on file with the authors.

47 States with no international watercourses might still have an interest in becoming a party, e.g., on the ground that the Convention promotes the rule of law and will help to avoid disputes in this increasingly important field, or because states with which they are allied would stand to benefit from the Convention.

48 See UN Doc. A/C.6/51/NUW/WG/L.3 (1997), indicating that the options before the working group were 22, 30, 35 or 60 ratifications.

49 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 308, UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

50 Verbatim record, supra note 6, at 4.

51 Viz., China’s plans to construct additional dams on the upper Mekong and Turkey’s GAP project on the Euphrates. On the Mekong, see Economist, Nov. 18, 1995, at 38, and Sept. 7, 1996, at 31; on the GAP project, see Stephen, C. McCaffrey, Water, Politics, and International Law , in Water in Crisis, supra note 24, at 92, 93–94 Google Scholar.

52 See generally the summary records of the Sixth Committee, UN Docs. A/C6/51/SR.1–62 (1996–97).

53 The other states are the Central African Republic, Kenya, Rwanda, Tanzania, Uganda and the Democratic Republic of Congo (formerly Zaire).

54 Joseph, W. Dellapenna, Rivers as Legal Structures: The Examples of the Jordan and the Nile , 36 Nat. Resources J. 217, 242 (1996)Google Scholar. To be precise, activities in those states would not affect Sudan north of the great Sudd wetlands in the south of the country.

55 Id. at 243 n.132.

56 Statute of the International Law Commission, Art. 1(1), UN Doc. A/CN.4/4/Rev.2 (1982).

57 Report of the Sixth Committee, supra note 9, at 6, 36 ILM at 720.

58 How much time depends upon various factors, including the intensity of the practice, its generality, etc. Moreover, norms may develop as a matter of regional or special, as opposed to universal, custom. See generally Anthony, D’amato, The Concept of Custom in International Law, ch. 8 (1971)Google Scholar.

59 While the intent of the parties at the time of a treaty’s conclusion obviously cannot be disregarded, developments in the law may be relevant to the treaty’s interpretation. See the ICJ’s statement that, where matters involved “were not static but were by definition evolutionary,” the provision in question would be interpreted “within the framework of the entire legal system prevailing at the time of its interpretation.” Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ Rep. 16, 31, para. 53 (Advisory Opinion of June 21). The conception of international watercourses and the law governing them have evolved considerably during the present century. See, e.g., Stephen, C. McCaffrey, The Evolution of the Law of International Watercourses , 45 Austrian J. Pub. & Int’l L. 87 (1993)Google Scholar.

60 Signed at Maseru, Lesotho, May 16, 1995 (copy on file with the authors).

61 Integración Latinoamericana, Revista Mensualdel Intal, Sept.-Oct. 1997, at 116.

62 Apr. 5, 1995, 34 ILM 864 (1995).

63 The Convention has had major influence on the development of the law in other fields as well, particularly the ILC’s ongoing work on international liability for injurious consequences arising out of acts not prohibited by international law. Many of the draft articles formulated by a working group in 1996 closely follow the provisions of the Watercourses Convention. See Report of the Working Group on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, supra note 31.

64 Verbatim record, supra note 6, at 2.

65 For example, a significant group of delegations believed its provisions concerning pollution and the ecosystems of international watercourses could have been strengthened, see text following note 36 supra.

66 For example, the provisions of part III drew fire from some delegations, see note 33 supra. However, they were strongly supported by others. That they survived the negotiation process bespeaks their overall balance.

67 Verbatim record, supra note 6, at 2.

68 GA Res. 49/52, supra note 2, preamble.