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Legal Framework of Transboundary Water Management Raya Marina Stephan, International consultant and water law expertThe WANA region is the most arid region in the world, and suffers from a considerable lackof freshwater availability. Water quality is also emerging as an important issue and is ofgrowing concern. And very importantly, a main characteristic of the water resources in theWANA region, whether surface or groundwater resources, is that they are often sharedbetween two or more States. Some of the shared groundwater resources is found in non-recharging aquifers such as the Nubian Sandstone aquifer system (Chad, Egypt, Libya andSudan).The region faces here a major challenge. States sharing a water resource, can be directlyaffected by decisions and developments made in the riparian Sates. Water resources that crossnational borders place the countries sharing the resource in a state of interdependence. Thewater dependence of some countries in the WANA region is extremely high: Egypt (waterdependence ratio 97%), Syria (80%) and Jordan (23%) rely almost exclusively ontransboundary water resources emanating from outside their borders. With no doubts, it isclear that the sustainable management of a shared water body has to involve all ripariancountries. Cooperation in managing shared water resources in a water scarce region isimperative in order to ensure resource preservation and its sustainable development. Bothwater quantity and quality aspects have regional dimensions when the water resources areshared.The region already experiences some cooperation modalities, some formalized by inter-stateagreements, some less formally set up through technical committees, experts meetings, orjoint projects. However, numerous shared water basins are still managed in a unilateralmanner by the concerned states, without any cooperative effort. In fact, the region has astriking absence of inclusive and comprehensive inter-State water agreements on its mostsignificant transboundary waters. In the few cases where agreements exist, the cooperationmodalities are often limited to exchange of data and developing models and informationsystems. Actual joint management of the shared water resource is still lacking. Existingarrangements are generally not inclusive in their scope and do not deal with optimization orplanning, nor do they have at their core established principles of international water law.Therefore, much effort still needs to be exerted before the region’s shared water resources canbe beneficially used sustainably, equitably, and in accordance with the principles ofinternational water law. This is in contrast to other regions where international relations haveevolved to a point that initiatives to establish formal, inclusive legal frameworks can bearticulated. It is the case in Europe, and in a certain way in the Southern African DevelopmentCommunity region. In the WANA region, the lack of international agreements reflects inlarge part the weak political and multilateral engagement among the States sharing the water,which are still considering water resources, even if they are shared, as a national issue.The WANA region can engage towards an improvement in the situation of its shared waterresources by integration the principles of international water law, by following other regional 1
examples which have adopted a framework for shared waters, and by enforcing its nationalcapacities in the management of water. I. International global frameworks for shared water resources: guiding toolsAt the global level, two international instruments were adopted to provide a legal frameworkfor the management of shared water resources. The first instrument is the UN Convention onthe Law of Non-navigational Uses of International Watercourses (1997) (UN WatercourseConvention). This Convention is not in force yet because it has not gathered yet the necessarynumber of ratifications (35) needed. The Convention has codified the core principles ofInternational Water Law, which are now part of customary international law. These principlesare the equitable and reasonable use and the obligation not to cause harm. The UNWatercourse Convention applies to international watercourses. In this Convention, awatercourse is defined as a “a system of surface waters and groundwaters constituting byvirtue of their physical relationship a unitary whole and normally flowing into a commonterminus” (article 2§a). Therefore the Convention applies to shared surface water bodies, andto the related groundwaters flowing into a common terminus. The Convention is alreadyrecognized as an authoritative instrument. In December 2008, the UN General Assembly adopted, Resolution A/RES/63/124 on theLaw of Transboundary Aquifers. The Resolution is a non-binding text. However, itencourages the states concerned to make appropriate arrangements for the proper managementof their transboundary aquifers, based on the principles of the draft articles prepared by theUN International Law Commission on the topic and included in its annex. These draft articlesformulate principles for the management of transboundary aquifers such as the equitable aandreasonable utilization and the no harm rule, with specific adaptations to aquifers. Rather thanan end, the resolution represents a first step towards the main objective –that is, “thedevelopment, utilization, conservation, management and protection of groundwater resourcesin the context of the promotion of the optimal and sustainable development of water resourcesfor present and future generations” 1.It can already be considered by States as a reference andas guidelines regarding their transboundary aquifers. The Resolution offers therefore areference framework for States regarding shared aquifers. II. Regional examples: Europe and SADCThe European continent hosts the two most achieved regional instruments regardingtransboundary waters in general, applicable in the case of transboundary aquifers in a widemanner. These are the UN ECE2 Convention on the protection and Use of TransboundaryWatercourses and International Lakes (1992)3 (UN ECE Water Convention) and the EUDirective 2000/60/EC establishing a framework for Community action in the field of waterpolicy adopted 20 October 2000 (in short EU Water Framework Directive or WFD)4.1 Draft articles on the law of transboundary aquifers, preambular paragraph 7.2 Economic Commission for Europe3 Available at http://www.unece.org/env/water/text/text.htm4 Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:327:0001:0072:EN:PDF 2
The UN ECE Water Convention entered into force in 1996, and has been ratified by thirty-eight States5. It applies to all transboundary waters, which are defined as “any surface orground waters which mark, cross or are located on boundaries between two or more States”(article 1§1). The Convention has adopted a wide definition of transboundary waters; itapplies therefore without any restriction to all aquifers as long as they are transboundary. TheConvention is guided by the equitable and reasonable use principle, the precautionaryprinciple and the sustainable development. It includes provisions related to procedural rulesgiving specific obligations to Riparian countries such as establishing and implementing jointprogrammes for monitoring. The Convention has served as a reference to numerousagreements in Europe such as the Danube River Protection Convention (1994), theConvention on the Protection of the Rhine (1999), or the Convention on the protection,utilization, recharge and monitoring of the Franco-Swiss Genevese aquifer (1st January 2008).The Southern African Development Community adopted in 2000 the Revised Protocol onShared Watercourses6. The Protocol is based on the UN Watercourse Convention, andincludes the same definition of a watercourse than the UN Convention. Therefore the Protocolin the same way as the UN Watercourse Convention applies to transboundary aquifers in alimited way. However there has been an awareness in the Southern African Region towardsthe necessity of improving the status of transboundary aquifers, which is still neglected. The2009 SADC Multi-Stakeholder Dialogue held in 2009 focused totally on groundwater. Itresulted from this Dialogue that it must be a high priority to generate a completeunderstanding of a transboundary aquifer with adequate groundwater data and information toallow for the implementation of cooperative arrangements, either as part of existingagreements on surface waters or through other modalities.At a regional level, among the WANA countries, the Arab Ministerial Water Council(AMWC) identified shared water resources as a regional priority, and passed a resolutionduring its second session in July 2010 to:“Invite the Center of Water Studies and Arab Water Security and the United NationsEconomic and Social Commission for Western Asia (ESCWA), in coordination with the ArabCenter for the Studies of Arid Zones and Dry Lands (ACSAD) and the StockholmInternational Water Institute (SIWI) to prepare a draft legal framework on shared waterswithin the Arab Region for its discussion during the next meeting of the Technical ScientificAdvisory Committee of the Ministerial Council in January 2011.”Arab Ministerial Water Council, Session 2, Resolution 4, Item 3 (AMWC, 2010)75 The status of the ratification and the Parties are available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&lang=en (last accessed 25 January 2011)6 Available at http://www.sadc.int/index/browse/page/159 . The Revised protocol entered in force in 2003. TheState Parties are: Botswana, Lesotho, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania,Zambia.7 Klingbeil R. & Hamdi M.I., Transboundary Water and Transboundary Aquifers in the Middle East:Opportunities for Sharing a Precious Resource, paper presented for the Conference Transboundary Aquifers:Challenges and new directions, December 2010. 3
The AMC is engaging towards the adoption of a regional legal instrument for shared waterswithin the Arab Region. The initiative is still at its start. When it finally reaches a maturestage and is regionally adopted, it could then be extended to neighboring countries of the Arabregion, applicable to shared waters between an Arab State and its neighbor. III. Enforcing the national settings and capacities for the management of waterThe obstacles for proper cooperation on shared water resources come at first place from thenational level. At the national level, the institutions in charge of water resources are oftennumerous and lack a clear mandate which leads to overlaps and gaps in responsibilities. Thereare often no local institutions to manage water basins. Therefore, it is not clear whatinstitution or agency is in charge of the water body shared with a neighboring country.The national legal frameworks on water are often not comprehensive on the main issuesregarding the management of water resources. These frameworks are important since theshared water body is managed at first at the national level. The significance of these domesticframeworks lies also in the fact that in case of an agreement with other riparian countries thedecision taken at the transboundary level would need to be compatible with and translatable tothe national legislation. Improving the governance of the shared water resource locally at thedomestic level is a main issue for consideration. 4