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Pkw plenary address iucn 5 july 2011

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  • 1. IHP-HELP Centre for WaterIUCN Academy of Environmental Law Law, Policy & Science2011 Annual Colloquium – South Africa UNESCOPlenary address Water and the Law Towards Sustainability Dynamic Cooperation 5 July 2011 Prof. Patricia Wouters
  • 2. Water and the Law: Towards SustainabilityWater is life. In all its forms, it is one of the mostessential resources for animals (including humans)and plants to flourish. The challenges to secure asustainable supply of water to meet the needsboth of humans and of the natural environment,and to do this both for the present and for thefuture, are daunting.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 2
  • 3. Water and the Law: Towards SustainabilityThe aim of this Colloquium isto share understanding andexperience in this field ofresearch, not only, however, todocument the challenge, butto gain insight into what needsto be done, what has beentried, what is working andwhat might work as regardswater and the law.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3
  • 4. Water and the Law: Towards Sustainability1. Water (the challenge)2. Law (role)3. Towards Sustainability : Dynamic CooperationIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4
  • 5. Global Water Challenge: Past, Present, FutureNo development 1.2 billionwithout water without safe drinking water and1.4 billion km3 of 2.4 billionwater on Earth without sanitationOnly a fraction wideningreadily available water gapGrowing issues of availability, access, and conflicts-of-useIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5
  • 6. Global Water challenge: International • 260+ TB WCs • 4000+ treaties • Mostly bilateralIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6
  • 7. Availability and Access issues: Too little…IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 7
  • 8. Availability and Access issues: too muchIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 8
  • 9. Conflicts-of-use - Water security challenges BBC NewsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 9
  • 10. Conflicts-of-use over water? Duty to cooperate?IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 10
  • 11. Water Security Matrix: connectivity Disciplinary interface Int’l / Global Environmental s Economic Regional Political Societal c a l e National HumanIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 11
  • 12. Global Water Challenge: GovernanceThe water problem is broad Transboundary cooperationand systemic. Our work to is therefore necessary todeal with it must be so as prevent negative impacts ofwell. The problem is that we unilateral measures …. Thishave no coordinated global makes transboundary watermanagement authority for resources management onewater in the UN system or of the most importantthe world at large. challenges today and in the(Ban Ki-Moon) years to come. (UN ECE, 2009)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 12
  • 13. Context = The Law of Nations―to maintain internationalpeace and security …and ...the fundamental freedomsof all … ― UN CharterIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13
  • 14. Role of International LawInternational law is clearly much more than a simpleset of rules. It is a culture in the broadest sense inthat it constitutes a method of communicatingclaims, counter-claims, expectations andanticipations as well as providing a framework forassessing and prioritising such demands.(Shaw, 2003 )IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 14
  • 15. Role of Law = Rule of Law" If the daunting challenges now facing the worldare to be overcome, it must be in important partthrough the medium of rules, internationallyagreed, internationally implemented and, ifnecessary, internationally enforced.That is what the rule of law requires in theinternational order. ”Lord Bingham The Rule of Law (2010)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 15
  • 16. Rule of law as foundation for a fair societyRule of Law as foundation for:1. good governance2. accountability3. certainty4. legalityAs core conditions for an effective economy and afair society.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 16
  • 17. International Water Law / Law of Nations Law of nations Transboundary Rule of law waters Hydro- Hydro- Water security solidarity diplomacyIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 17
  • 18. Water for all? Reconciling competing needs Legal “Who” gets Template “what” “water”, for analysis: “when” and “why”? Rule of LawIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18
  • 19. Legal Analytical Framework (Rule of Law)Key Elements Details • Legal reach (what waters?)1. Scope • Definitions (watercourse; uses) • Parties (States; RIEOs) • Legal duties & entitlements (equitable and2. Substantive Rules reasonable utilisation; due diligence; protection) • Rules of substance (general or precise) • Rules of procedure (duty to cooperate as bridge)3. Procedural Rules • Notification / exchange of information • Joint bodies (RBOs)4. Institutional • Conference of the Parties (MoP; CoP)Mechanisms • Organisations / organs (Ministerial level; other) • Dispute avoidance (consultation)5. Dispute Settlement • Dispute settlement (Art. 33 UN WC; other) • Compliance verification (reporting; facilitation)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19
  • 20. Legal Analytical Framework: State Practice Rhine Convention; Danube; 1 Scope Mekong; Nile (water security) 2 Substantive Rules 1992 UNECE Helsinki Convention 3 Procedural Rules EU Water Framework Directive Institutional Mekong; Columbia; Colorado; 4 Mechanisms Rhine; Danube Dispute avoidance / Indus; Mekong; Canada/USA; EU; 5 compliance UNECE practiceIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 20
  • 21. Role of Law: Water SecurityMinisterial Declaration, “Water Security in the Twenty-First Century”Main challenges to achieve water security:1. Meeting basic needs2. Securing food supply3. Protecting ecosystems4. Sharing water resources5. Managing risks6. Valuing water7. Governing water wisely(WorldWaterCouncil2000)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 21
  • 22. Water Security: Legal Analytical Framework WSAF: 1. Legal What? framework Availability 2. Informed by science 3. Dynamic Access Why? Who? Addressing Conflicts-of- useIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 22
  • 23. International Water Security: AAA Water Security Analytical Framework Addressing Availability Access conflicts-of-use • Scope • Legal • Process / • Management entitlement governance & control (right to use) framework • Natural • Allocation and integrity of re-allocation • Preventing / the resource resolving disputesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 23
  • 24. Rule of Law = New Politics of WaterPolitics - “the activities Rule of law - “Dicey’sassociated with the three aspects of the rulegovernance of a country or of law—regulatingarea, especially the debate government power,between parties having implying equality beforepower”; “the activities of the law, and privileginggovernments concerning judicial process—arethe political relations commonly regarded asbetween states” (Oxford basic requirements of adictionary) formal understanding of the rule of law. “ (S. Chesterman, 2008)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 24
  • 25. Rule of law as platform for integration and implementation (water+ arena) 1. Conditions for • Law of nations – UN Charter: regional peace and security constructive foreign and fundamental freedoms of all policy approaches • Duty to cooperate (substantive and procedural) • Peaceful settlement of disputes 2. Effective water • Legal Analytical Framework: (i) scope; (ii) substantive rules; sharing agreements (iii) procedural rules; (iv) institutional mechanisms; (v) dispute settlement • 1997 UN Watercourses Convention • Regional watercourses agreements (dynamic cooperation) 3. Sustainability / • Water Security Analytical Framework: (i) Availability; (ii) Stress Resilience test? Access; (iii) Addressing conflicts-of-use • Governing rule of equitable and reasonable utilisation (all relevant factors considered together) • Rule of Law as integrating & implementation platformIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 25
  • 26. Water, Law, Sustainability: Dynamic CooperationThe only thing that will redeem mankind is cooperationBertrand RussellIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 26
  • 27. Dynamic Cooperation: Larger Freedom … the cause of larger freedom can only be advanced by broad, deep and sustained global cooperation among States (Report of The Secretary-General, 2005 ) …International law is more than a set of rules for States; it is a ‘language of communication’ (Boutros Boutros-Ghali, 1995 )IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 27
  • 28. Dynamic Cooperation: Hydro-solidarityThere is an urgent need for a water diplomacywhich would agree on the balance of the greatcontinental water reserves, the mitigation ofpotential conflicts over several transboundarybasins and on the refinancing of the debt of thepoorest countries in favour of water andsanitation.(Loïc Fauchon, WWC, 2007 )IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 28
  • 29. Dynamic Cooperation – Competition?New York Times - When the Nile Runs DryLester R. Brown (1 June 2011)“Affluent countries like Saudi Arabia, South Korea,China and India have descended on fertile plainsacross the African continent, acquiring huge tractsof land to produce wheat, rice and corn forconsumption back home. .. Growing water demand,driven by population growth and foreign land andwater acquisitions, are straining the Nile’s naturallimits. ”IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 29
  • 30. Dynamic Cooperation – Competition?… the Millennium Dam will not onlyprovide benefits to Ethiopia. It will alsooffer mutually beneficial opportunities toSudan and to Egypt. Indeed, one mightexpect these countries to be prepared toshare the cost in proportion to the gainsthat each state will derive.”… to exercise our rights to use our ownrivers is in order to fight poverty in ourown country. It shows no malice to any ofour neighbors. Among the concerns wefactored in when we made the decisionto build the Nile Dam with our ownresources, was to avoid any negativeconsequences for our neighbors andindeed to offer positive benefits for all ofthem.Prime Minister Meles Zenawi, Ethiopia(April 2011)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 30
  • 31. Dynamic Cooperation: Duty to cooperate“Competition has been General obligation toshown to be useful up to a cooperate - Watercoursecertain point and no further, States shall cooperate onbut cooperation, which is the basis of sovereignthe thing we must strive for equality, territorial integrity,today, begins where mutual benefit and goodcompetition leaves off. ” faith in order to attainFranklin D Roosevelt optimal utilization and adequate protection of an international watercourse (Art. 8, UNWC)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 31
  • 32. Cooperation on the Okavango (March 2011) Southern Africa Water - Working Together On River Management • Angola - irrigation for development, • Namibia - clean drinking water & sanitation • Botswana - Okavango Delta for tourism.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 32
  • 33. Dynamic Cooperation: state practiceAsia, Europe march ever closerBy Claire Rosemberg (AFP) – 7 June 2011GODOLLO, Hungary — From nuclear safety to climate changeand growth, 46 nations from Asia and Europe wound up twodays of talks Tuesday pledging to tighten the bonds between 60per cent of the planets people. .. "We are all inter-dependent,"said Hungarys Foreign Minister Janos Martonyi. "All partiesagreed on the deepening of this cooperation.― .. "Food, water,energy and climate security are interconnected and inseparable.These four elements underpin global security, prosperity andequity.‖(ASEM groups the EU, the 10-member Association of Southeast Asian Nations(ASEAN), China, Japan, South Korea, India, Pakistan, Mongolia, Australia, NewZealand and Russia -- four billion people representing over 60 per cent of world trade.)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 33
  • 34. Dynamic Cooperation: USA foreign policy• We should view every regional 5 streams of action watershed or aquifer as an 1. Capacity development (local, opportunity for stronger national, regional) international cooperation. 2. Elevate diplomatic efforts and• Access to reliable supplies of we need to better coordinate clean water is a matter of them human security. It’s also a 3. Mobilizing financial support matter of national security. 4. Harness the power of science• There could be huge political and technology and economic benefits from regional water diplomacy. 5. Broadening the scope of our partnerships• Water is actually a test case for preventive diplomacy.IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 34
  • 35. Dynamic Cooperation FrameworkDynamic Cooperation = Obligation erga omnes Global • Good governance interdependence • Regional peace and • Accountability security • Connectivity • Certainty • Fundamental • Economic imperatives freedoms of all • Legality • Water/energy/food • Duty to cooperate nexus Rule of Law Law of nationsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 35
  • 36. Water Security Hierarchy (capacity tower)Local Water Leaders Water security Regional & Global National Capacity IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 36
  • 37. Water and the Law: Towards Sustainability To save the world requires faith and courage: faith in reason, and courage to proclaim what reason shows to be true. Bertrand RussellIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 37
  • 38. Thank you!www.dundee.ac.uk/water www.glasgow2015.org