International Law Commission

Last update: July 22, 2015

Summaries of the Work of the International Law Commission

Law of the non-navigational uses of international watercourses

The General Assembly, by resolution 2669 (XXV) of 8 December 1970, recommended that the Commission should take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification and, in the light of its scheduled programme of work, should consider the practicability of taking the necessary action as soon as the Commission deemed it appropriate.

At its twenty-third session, in 1971, the Commission included the subject of non-navigational uses of international watercourses in its programme of work. The Commission also agreed that, for studying the rules of international law on that subject with a view to their progressive development and codification, all relevant materials on State practice should be compiled and analysed.¹

The General Assembly, by resolution 2780 (XXVI) of 3 December 1971, recommended that the Commission should decide upon the priority to be given to the topic.

At its twenty-fourth session, in 1972, the Commission indicated its intention to take up the Assembly’s recommendation when it came to discuss its long-term programme of work. The Commission furthermore reached the conclusion that the problem of the pollution of international waterways was of both substantial urgency and complexity. Accordingly, it requested the Secretariat to continue compiling the material relating to the topic with specific reference to the problems of the pollution of international watercourses.

At its twenty-fifth session, in 1973, the Commission gave special attention to the question of the priority to be given to the topic. It concluded, however, that a formal decision on the commencement of the substantive work should be taken after members had had an opportunity to review the supplementary report on the legal problems relating to the non-navigational uses of international watercourses being prepared by the Secretariat, which was issued in 1974.²

At its twenty-sixth session, in 1974, the Commission, pursuant to the recommendation contained in General Assembly resolution 3071 (XXVIII) of 30 November 1973, set up a Subcommittee to consider the question. The Subcommittee submitted a report to the Commission³ that dealt with the nature of international watercourses and pointed out that a preliminary question to be examined was the scope of the term “international watercourses”. Recognizing the variations in practice and theory, the report proposed to request States to comment on a series of questions concerning the appropriate scope of “international watercourses” to be adopted in a study of the legal aspects of their non-navigational uses. It stated that another preliminary question was the type of activities to be included within the term “non-navigational uses”. Since uses could be conflicting, both on the national and on the international levels, the report proposed that the views of States should be sought as to the range of uses that the Commission should take account of in its work and as to whether certain special problems needed to be considered. Furthermore the report recommended that States be requested to reply to the questions whether the Commission should take up the problem of pollution of international watercourses at the initial stage in its study, and whether special arrangements should be made for ensuring that the Commission be provided with technical, scientific and economic advice. At the same session, the Commission adopted the report without change.

The General Assembly, by resolution 3315 (XXIX) of 14 December 1974, recommended that the Commission should continue its study of the law of the non-navigational uses of international watercourses taking into account, inter alia, comments received from Member States on the questions mentioned in the Subcommittee’s report.

The Commission proceeded with its work on the topic at its twenty-eighth, thirty-first and thirty-second sessions, from its thirty-fifth to forty-third sessions and at its forty-fifth and forty-sixth sessions, in 1976, 1979 and 1980, from 1983 to 1991 and in 1993 and 1994, respectively. The Commission appointed Richard D. Kearney, Stephen M. Schwebel, Jens Evensen, Stephen McCaffrey, and Robert Rosenstock as the successive Special Rapporteurs for the topic at its twenty-sixth, twenty-ninth, thirty-fourth, thirty-seventh and forty-fourth sessions, in 1974, 1977, 1982, 1985 and 1992, respectively. In connection with its consideration of the topic, the Commission had before it the reports of the Special Rapporteurs,⁴ information provided by Governments⁵ as well as documents prepared by the Secretariat.⁶

At its twenty-eighth session, in 1976, the Commission held a general debate on the topic which led to agreement in the Commission that the question of determining the scope of the term “international watercourses” did not need to be pursued at the outset of the work. Instead, attention should be devoted to beginning the formulation of general principles applicable to legal aspects of the uses of those watercourses. In so doing, every effort should be made to devise rules which would maintain a delicate balance between rules too detailed to be generally applicable and rules too general to be effective. Furthermore, the rules should be designed to promote the adoption of regimes for individual international rivers and for that reason should have a residual character. Effort should also be devoted to making the rules as widely acceptable as possible and the sensitivity of States regarding their interests in water must be taken into account.

At its thirty-second session, in 1980, the Commission began the first reading of the draft articles. It decided to use, at least in the early stages of its work on the topic, the provisional working hypothesis recommended by the Drafting Committee as to the meaning of the term “international watercourse system”.⁷

At its forty-third session, in 1991, the Commission adopted on first reading the draft articles as a whole. In accordance with articles 16 and 21 of its Statute, the Commission decided to transmit the draft articles, through the Secretary-General, to Governments of Member States for comments and observations.

The General Assembly, in resolution 46/54 of 9 December 1991, expressed its appreciation to the Commission for the completion of the first reading of the draft articles on the topic and urged the Governments to present their comments and observations on the draft in writing, as requested by the Commission.

At its forty-fifth session, in 1993, and forty-sixth session, in 1994, the Commission proceeded with its second reading of the draft articles on the basis of the reports submitted by the new Special Rapporteur for the topic, Mr. Rosenstock. In his first report,⁸ the Special Rapporteur analysed the written comments and observations received from Governments and raised two issues of a general character, namely whether the eventual form of the articles should be a convention or model rules, and the question of dispute settlement procedure. He also raised the possibility of including in the draft articles provisions on “unrelated confined groundwaters”. At its forty-fifth session, in 1993, the Commission requested the Special Rapporteur to undertake a study on the question of “unrelated confined groundwaters” in order to determine the feasibility of incorporating them in the topic. In his second report,⁹ the Special Rapporteur suggested amending certain draft articles adopted on first reading to include provisions on “unrelated confined groundwaters”,¹⁰ in order to encourage their management in a rational manner and prevent their depletion and pollution, and proposed a new article dealing with dispute settlement.

At its forty-sixth session, in 1994, having considered the second report of the Special Rapporteur, the Commission decided to refer the entire set of the draft articles to the Drafting Committee and invited it to proceed with their consideration, without the amendments on “unrelated confined groundwaters”, and to submit suggestions to the Commission on how the Commission should proceed on the question of “unrelated confined groundwaters”. At the same session, the Commission adopted the final text of a set of thirty-three draft articles on the law of the non-navigational uses of international watercourses, with commentaries, and a resolution on confined transboundary groundwater.¹¹ In accordance with article 23 of its Statute, the Commission submitted the draft articles and the resolution to the General Assembly, together with a recommendation that a convention on the subject be elaborated by the Assembly or by an international conference of plenipotentiaries on the basis of the draft articles.¹²

The General Assembly, by its resolution 49/52 of 9 December 1994, expressed its appreciation to the Commission for its valuable work on the law of the non-navigational uses of international watercourses, and to the successive Special Rapporteurs for their contribution to that work, invited States to submit written comments and observations on the draft articles adopted by the Commission, and decided that, at its fifty-first session, in 1996, the Sixth Committee would convene as a Working Group of the Whole, open to States Members of the United Nations or members of specialized agencies, to elaborate a framework convention on the law of the non-navigational uses of international watercourses on the basis of the draft articles adopted by the Commission in the light of the written comments and observations of States and views expressed in the debate at the forty-ninth session of the General Assembly. It also decided that the Working Group of the Whole would, without prejudice to the rules of procedure of the General Assembly, follow the methods of work and procedures outlined in the annex to the resolution, subject to any modifications which it might deem appropriate, and further decided to include in the provisional agenda of its fifty-first session an item entitled “Convention on the law of the non-navigational uses of international watercourses”.

The Working Group of the Whole of the Sixth Committee held two sessions, from 7 to 25 October 1996 and from 24 March to 4 April 1997, the second having been held pursuant to General Assembly resolution 51/206 of 17 December 1996. It had before it the draft articles on the topic adopted by the Commission, and comments, observations and proposals by States. The Working Group of the Whole established a Drafting Committee. As mandated by General Assembly resolution 51/206, upon completion of its mandate, the Working Group reported directly to the General Assembly.¹³

By its resolution 51/229 of 21 May 1997, the General Assembly, upon recommendation of the Working Group of the Whole, adopted the Convention on the Law of the Non-navigational Uses of International Watercourses,¹⁴ consisting of a preamble, thirty-seven articles and an appendix on arbitration.

The Convention was open for signature by all States and by regional economic integration organizations until 20 May 2000 at United Nations Headquarters in New York. The Convention is subject to ratification, acceptance, approval or accession by States and by regional economic integration organizations. It shall enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession.¹⁵

¹ The Commission noted that a considerable amount of such material had already been published in 1963 in the Secretary-General’s report entitled “Legal problems relating to the utilization and use of international rivers” (see Yearbook … 1974, vol. II (Part Two), document A/5409), prepared pursuant to General Assembly resolution 1401 (XIV) of 21 November 1959, as well as in a volume in the United Nations Legislative Series entitled “Legislative Texts and Treaty Provisions Concerning the Utilization of International Rivers for Other Purposes Than Navigation” (ST/LEG/SER.B/12, United Nations publication, Sales No. 63.V.4). (see Analytical Guide for individual documents)

² The General Assembly, in resolution 2669 (XXV) of 8 December 1970, requested the Secretary-General to continue the study initiated in accordance with General Assembly resolution 1401 (XIV) in order to prepare a “supplementary report” on the legal problems relating to the question, taking into account the updated application in State practice and international adjudication of the law of international watercourses and also intergovernmental and non-governmental studies of this matter. The Secretary-General submitted a supplementary report in 1974, which was printed in Yearbook … 1974, vol. II (Part Two), document A/CN.4/274. (see Analytical Guide for individual documents)

³ Document A/CN.4/283 reproduced in Yearbook … 1974, vol. II (Part One), document A/9610/Rev.1, chapter V, annex. (see Analytical Guide)

⁴ For the report of Richard D. Kearney, see Yearbook … 1976, vol. II (Part One), document A/CN.4/295. For the reports of Stephen M. Schwebel, see Yearbook … 1979, vol. II (Part One), document A/CN.4/320; ibid., 1980, vol. II (Part One), document A/CN.4/332 and Add.1; and ibid., 1982, vol. II (Part One), document A/CN.4/348. For the reports of Jens Evensen, see Yearbook … 1983, vol. II (Part One), document A/CN.4/367; and ibid., 1984, vol. II (Part One), document A/CN.4/381. For the reports of Stephen McCaffrey, see Yearbook … 1985, vol. II (Part One), document A/CN.4/393; ibid., 1986, vol. II (Part One), document A/CN.4/399 and Add.1 and 2 (in his second report, the Special Rapporteur discussed the concept of “shared natural resources” which was subsequently taken up by the Commission as a separate topic); ibid., 1987, vol. II (Part One), document A/CN.4/406 and Add.1 and 2; ibid., 1988, vol. II (Part One), document A/CN.4/412 and Add.1 and 2; ibid., 1989, vol. II (Part One), document A/CN.4/421 and Add.1 and 2; ibid., 1990, vol. II (Part One), document A/CN.4/427 and Add.1; and ibid., 1991, vol. II (Part One), document A/CN.4/436. For the reports of Robert Rosenstock, see Yearbook … 1993, vol. II (Part One), document A/CN.4/451; and ibid., 1994, vol. II (Part One), document A/CN.4/462. (see Analytical Guide for individual documents)

⁵ See Yearbook … 1976, vol. II (Part One), document A/CN.4/294 and Add.1; ibid., 1978, vol. II (Part One), document A/CN.4/314; ibid., 1979, vol. II (Part One), document A/CN.4/324; ibid., 1980, vol. II (Part One), document A/CN.4/329 and Add.l; ibid., 1982, vol. II (Part One), document A/CN.4/352 and Add.l; and ibid., 1993, vol. II (Part One), document A/CN.4/447 and Add.1–3. (see Analytical Guide for individual documents)

⁶ Apart from the documents mentioned above, see also Yearbook … 1971, vol. II (Part Two), document A/CN.4/244/Rev.1; ibid., 1973, vol. II, document A/CN.4/270; as well as document A/CN.4/L.241. (see Analytical Guide for individual documents)

⁷ The hypothesis was contained in a note which reads as follows:

“A watercourse system is formed of hydrographic components such as rivers, lakes, canals, glaciers and ground water constituting by virtue of their physical relationship a unitary whole; thus, any use affecting waters in one part of the system may affect waters in another part.

An ‘international watercourse system’ is a watercourse system, components of which are situated in two or more States.

To the extent that parts of the waters in one State are not affected by or do not affect uses of waters in another State, they shall not be treated as being included in the international watercourse system. Thus, to the extent that the uses of the waters of the system have an effect on one another, to that extent the system is international, but only to that extent; accordingly, there is not an absolute, but a relative, international character of the watercourse.” See Yearbook … 1980, vol. II (Part Two), para. 90.

⁸ See Yearbook … 1993, vol. II (Part One), document A/CN.4/451. (see Analytical Guide)

⁹ See Yearbook … 1994, vol. II (Part One), document A/CN.4/462. (see Analytical Guide)

¹⁰ The term “unrelated confined groundwaters” is conceived as a shared aquifer which is an independent water resource body, not contributing water to a “common terminus” via a river system, or receiving significant amounts of water from any extant surface water body. See Yearbook … 1994, vol. II (Part One), document A/CN.4/462, annex, para. 38.

¹¹ See Yearbook … 1994, vol. II (Part Two), paras. 218 and 222.

¹² See Yearbook … 1994, vol. II (Part Two), para. 219.

¹³ For the reports of the Working Group of the Whole, see documents A/51/624 and A/51/869. (see Analytical Guide for individual documents)

¹⁴ For the text of the Convention, see General Assembly resolution 51/229 of 21 May 1997, annex.

¹⁵ In accordance with article 36, paragraph 3, of the Convention, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by States for the purposes, inter alia, of entrance into force of the Convention.