Does Article 6 (Factors Relevant to Equitable and Reasonable Utilization) in the UN Watercourses Convention misdirect riparian countries?

Abstract

The “factors relevant to equitable and reasonable utilization” of a watercourse expressed in Article 6 of the UN Watercourses Convention were incorporated into an Excel model using an analytical hierarchy process to examine how the article guides water allocation between countries within transboundary basins. This model was employed in training from 2008 to 2011 with scientists from transboundary basins including the Limpopo and Zambezi Rivers. Contrasting these results with those from a model designed to explore water sharing from a sectoral-growth perspective indicates that Article 6, in its current formulation, cannot guide adjustments to current water shares between countries.

Keywords:

• watercourses
• equitable
• reasonable
• utilisation
• transboundary
• allocation

View correction statement:

Erratum

Acknowledgements

This work stems from programmes organized by SIDA, SIWI, IWMI, Ramboll Natura, SADC and GIZ. The opinions are solely the author's. The author would like to thank all organizers and participants for their enthusiasm in exploring these models and in particular the assistance of Peter Quist-Hoffman and Owen McIntyre. Insightful comments by Jasmine Moussa, two anonymous referees and the editors of this special issue are warmly recognized.

Notes

1. Water allocation is defined as the apportionative theories, practices and outcomes that decide the consumptive, non-consumptive, in-stream and off-stream uses of water resources. Internal renewable water resources data were used in the models.

2. Adopted from the Helsinki Rules on the Uses of the Waters of International Rivers; see Salman (2007).

3. Jurimetrics comprise quantitative methodologies and measures that guide legal judgement (see Loevinger, 1963).

4. A possible confusion crops up in this article: that of the linguistic preciseness of adjectives for the nouns “equity” and “equality” (Dellapenna, 2001). I use “equity” and “equitable” in a legal sense and “equality” and “equal” in a mathematical sense.

5. Bourne (1997, p. 216): “The principle of equitable utilization emphasizes that a state cannot legally do as it pleases with the transboundary water resources in its territory. Its essence is that states must act reasonably in dealing with these waters.”

6. Water Allocation in the Zambezi River Basin: Operationalizing the Principle of Equitable and Reasonable Utilization (personal communication, Jefter Sakupwanya, 11 October 2007). The SADC protocol on water sharing adopted the UNWC text almost word for word.

7. Having given each country a vote for their favourite criteria, it might be tautologous to allow a second weighting as to how these choices feed into a basin average.

8. However, the US Supreme Court have taken numerous factors (e.g. hydrological, geographic and state law) into account when ruling on water disputes between US states (Sherk, 2000).

9. See Bourne (1997) which identifies the Institute of International Law and the International Law Association as the origins of the UNWC.

10. McIntyre (2012) terms this “global administration”.

11. In addition, long-term, well-resourced support for transboundary water management is central to its success, although it is not always in place.

12. Compared to those of Al-Kloub and Abu-Taleb (1998) and Juızo and Liden (2010), my models were simple, aiming to introduce water allocation within two to three hours whilst simultaneously revealing the biases of decision aids.

13. World Bank (2005) similarly did not collate water-demand data for the Niger Basin.

14. The other four attempts are: Al-Kloub and Abu-Taleb (1998); van der Zaag et al. (2002); Mimi and Sawalhi (2003); and Carmi and Hassan (2012).