South America and the Living Principle of Equitable and Reasonable Uses of International Watercourses

  • Transboundary Water Cooperation means taking every State’s interest into account
  • Equitable and Reasonable Uses of an International River allow all riparian States to benefit from the natural resource
  • Regional Integration for Sustainable Development makes it possible to use our natural resources to satisfy our present needs while at the same time protecting those of future generation.

The Principle of Equitable and Reasonable Uses of International Watercourses is the core principle of the UN Convention on Non-Navigational Uses of International Watercourses. In South America, however, only two countries signed the UN Watercourses Convention and until 2020, no South American country has ratified it.

In spite of this, current state practice among South American countries shows that this principle of equitable and reasonable uses of international watercourses is very much alive. In South America, the La Plata basin holds the international river Paraná which flows through Brazil, Paraguay and Argentina. These three countries use said river in multiple ways. The Paraná river has two major binational dams: the upstream Itaipu dam (Brazil-Paraguay) and the downstream Yacyreta dam (Argentina-Paraguay). Both are used for hydropower production, which is the main energy source for some of these countries. At the same time, the river is used for navigation purposes, which is crucial for land-locked Paraguay to export its agricultural products, and for water consumption, as is the case for Argentina.

Currently, and similar to other regions in the world, this part of South America has been strongly affected by adverse environmental challenges exacerbated by climate change, like wildfires and severe droughts, which in turn drastically affects the water flow of international rivers such as the Paraná. In the early months of 2020, the water flow of the Paraná was so low that all three countries were affected and had to drastically limit their use of the river.

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The Parana river during the 2020 drought. Credits: Daf.Drone

The challenges faced by all three countries during the past months were overcome through international cooperation. Prompted by a request from Paraguay´s Ministry of Foreign Affairs to release more water from the Itaipu reservoir in order to increase downstream flow, an intergovernmental technical committee was formed among representatives of the riparian states and key institutions to enable exchange of information and hydrological data. Although Itaipu´s main objective is to produce energy, the matter was put for consideration to the highest authority of the binational entity, the Governing Council. Based on international law establishing reasonable and equitable uses of any international river, and aiming for a balance to allow the operation of the dam whilst permitting the multiple other uses of the river, the Council approved the liberation of sufficient water so as to not compromise the dam´s energy production, and yet, at the same time, maintain that the uses of the river by downstream countries were secured. Reaching this decision was possible due to the joint work of technical commissions and exchange of hydrological conditions data between all parties involved.

International law aids countries by providing the parameters of how an international river can be shared. For example, an understanding of what is reasonable and equitable use can be reached with reference to article 6 of the UN Watercourses Convention, which lists non-exhaustively factors that have to be taken into account to attend the need of the different riparians.

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The Itaipu dam in 2016 (Credits: Claudia Coleoni)

There is another important element arising from the acceptance of this principle of equitable and reasonable use of an international river: the rejection of the absolute sovereignty doctrine, and in turn the realisation that state practices reflect limited sovereignty when shared natural resources, like international rivers, are concerned. In international water law, the absolute sovereignty doctrine established that a country can do whatever they want with their portion of the river, independently of whether this affects other countries. On the other hand, the principle of limited sovereignty manifests that the interests of the other riparian states must be taken into account when using international rivers. This, however, should not be confused with the power of vetoing the activities of one state. International law and the UN convention, in article 7, have also firmly established the principle of no harm. The two principles, that of equitable and reasonable uses, and that of no harm, complement each other. International law also provides us with procedural mechanisms such as notifications and consultation processes for carrying out activities in international watercourses.

New water-related agreements in the South American region are also an evidence of state practices following these principles. The Guarani Aquifer Agreement, which concerns an aquifer also part of the La Plata basin, was agreed between Argentina, Brazil, Paraguay and Uruguay in 2010. The Guarani Aquifer Agreement has both the principle of equitable uses and that of no harm at its core. The said agreement also provides for exchange of data, notifications and consultations for activities in the territories of the aquifer.

In conclusion, international cooperation is crucial for the uses of transboundary water resources. The principle of equitable and reasonable uses allows for a balance between the multiple uses of an international river that all key actors can benefit from. Sustainable development can be achieved only if key actors, states and non-state actors, work together; meeting our needs today with the protection of our natural resources in such a way that the present generation ensures that future generations can also benefit from these valuable natural resources.

Maria is a Member of the Governing Council of the Binational Entity ITAIPU and member of the International Law Institute, University of Bonn. She holds an LLB (Honours) from the National University of Asunción, Paraguay; a Magister Juris from the University of Oxford; and a PhD from the University of Wuppertal, Germany. She was a Global Leaders Fellow (2016-2018) at the Universities of Oxford and Princeton, USA. Currently, she is a Senior Research Associate of the Global Economic Governance, Oxford, and an International Arbitrator at the Court of Arbitration for Sports, Switzerland.

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