400 treaties related to transboundary watercourses across the world Zawahri and Mitchell observe that 42 per cent of watercourse treaties are bilateral, and amongst these treaties 67 per cent were signed on multilateral basins.
Decision to negotiate a framework agreement taken 3 key areas where a framework agreement might be of benefit, namely where, no governing regime for transboundary waters exists not all basin states were party to an existing agreement and an agreement only partially covered matters addressed by the rules
Strong emphasis on process Real strength of the agreement is that it provides a transparent, legitimate and predictable framework by which states can identify and reconcile their potentially competing interests of transboundary waters.
Could entry into force and widespread support help to foster joint ‘social practices’; such as a stronger adherence to the substantive and procedural norms contained within the 97 UN WC? Could entry into force even act as a catalyst for adopting and implementing basin agreement?
The 1997 UN Watercourses Convention: a multi-level governance perspective Stockholm World Water Week Seminar “ Strengthening Water Diplomacy in Transboundary Basins ” Dr Alistair Rieu-Clarke 22 nd August 2011
The global architecture for transboundary waters – a fragmented system
“ Existing agreements are sometimes not sufficiently effective to promote integrated water resources management due to problems at the national and local levels such as inadequate water management structures and weak capacity in countries to implement the agreements as well as shortcomings in the agreements themselves (for example, inadequate integration of aspects such as the environment, the lack of enforcement mechanisms, limited – sectoral – scope and non-inclusion of important riparian States)” – (UN-Water, Transboundary Waters: Sharing Benefits, Sharing Responsibilities, Thematic Paper, 2008)
1997 UN Watercourses Convention: Process Decision to develop a framework agreement Significant evidence of a shared understanding over the rules and principles that governance international watercourses Year Event 1970 <ul><ul><li>UN GA Resolution 2669 (XXV): ‘Fragmentation of international law’ </li></ul></ul>1976 – 1994 <ul><ul><li>15 ILC Special Rapporteur Reports, in additional to comments and observations by States </li></ul></ul>1991 <ul><ul><li>ILC Draft Articles submitted to UN GA </li></ul></ul>1993 <ul><ul><li>Replies from Government to Draft Articles </li></ul></ul>1994 <ul><ul><li>Revised ILC Draft Articles submitted to UN GA </li></ul></ul>1996-1997 <ul><ul><li>UN GA Sixth (legal) Committee to negotiate text of the Convention </li></ul></ul>1997 <ul><ul><li>UN Watercourses Convention adopted by 38 sponsors, 103 votes in favour, 26 abstentions and 3 against </li></ul></ul>2011 24 Parties (need 35 for entry into force)
1997 UN Watercourses Convention: Content Provides a transparent, legitimate and predictable process by which states can identify and reconcile their potentially competing interests of transboundary waters
How does a global legal framework instrument influence water diplomacy at the basin/ national level?
AE Cascão and M Zeitoun, 'Power, Hegemony and Critical Hydropolitics' in A Earle, A Jägerskog and J Öjendal (eds), Transboundary Water Management - Principles and Practice (Earthscan London 2010), at 30. International law, power and hydrodiplomacy
‘… downstream countries can … mobilise structural factors, such as the codification of new legal ‘rules’ on watercourses to bring upstream riparians to cooperate, and therefore acquire enhanced structural power’ ** ‘… basin bullies can be susceptible to the powers of persuasion, and may be less likely to force an arrangement if they are held accountable to an objective standard , or risk being ‘named and shamed’’ . * M Zeitoun and A Jägerskog, 'Confronting power: strategies to support less powerful states' in A Jägerskog and M Zeitoun (eds), Getting Transboundary Water Right: Theory and Practice for Effective Cooperation (Stockholm International Water Institute Stockholm 2009), at 12. ** M Daoudy, 'Hydro-hegemony and international water law: laying claims to water rights' 10 Water Policy 89 (2008). International law, power and hydrodiplomacy
Brunée, J. & Toope, S.J., “ The Changing Nile Basin Regime: Does Law Matter? ” , 43 Harvard Journal of International Law 105 (2002) International law matters – water diplomacy in the Nile context Unresolved relationship between ‘ equitable utilisation ’ and ‘ no significant harm ’ leads to ‘ irreconcilable positions ’ Prior to adoption of 97 UN WC Following adoption of 97 UN WC ‘ The contradiction in the two fundamental principles has been effectively erased through their melding in the Watercourses Convention. As the most recent authoritative statement of international water law , the Convention has helped undermine the principles' capacity to structure opposing arguments.’ Following entry into force, widespread support ‘ Of course, the influence of the traditional rules cannot be erased overnight. Therefore, the new challenge to legitimacy will be to foster social practices along the Nile that have the capacity to generate adherence to emerging cooperative principles of water law…’
Strengthening water diplomacy in transboundary basins – what contribution can the 97 UN WC make?
Why entry into force/ widespread support? In ratifying a treaty a state incurs a political and legal ‘cost’ that demonstrates sincerity of belief. Such a process also usually results from some level of consultation, involving heads of state, government, parliament, etc. Treaties reflect a State’s view of whether certain norms should be legally binding. If that practice is widespread and representative it can create customary international law even within a short time period. International law matters States take an interest in what other states do, which has a knock on effect. Entry into force could be a ‘tipping point’ for wider ratification. Raises profile of (transboundary) water issues at the global policy and agenda-setting levels. Cascade effect & global policy/ agenda setting Strengthens what counts as persuasive argument within basin negotiations. Levels the playing field between states. Marginal groups within countries can hold a State to account based on objective standards. International law & hydropolitics Can act to supplement existing architecture where a) no agreement exists at the basin level; b) not all basin states are party to a particular agreement; and c) basin agreements only partially cover areas contained within the 97 UN Watercourses Convention. Entry into force/ widespread support can act as a catalyst for treaty negotiation at the basin level. Addresses fragmentation
What will entry into force/ widespread support take? *Salman, SMA., ‘The United Nations Watercourses Convention Ten Years Later: Why Has its Entry into Force Proven Difficult?’, 32(1) Water International 1 (2007)
For more information <ul><ul><li>IHP-HELP Centre for Water Law, Policy & Science (under the ausipices of UNESCO), University of Dundee, Scotland, UK </li></ul></ul><ul><ul><ul><li>Dr Alistair Rieu-Clarke (firstname.lastname@example.org) </li></ul></ul></ul><ul><ul><ul><li>www.dundee.ac.uk/water/projects/unwcglobalinitiative/ </li></ul></ul></ul><ul><ul><li>World Wildlife Fund – Water Conventions </li></ul></ul><ul><ul><ul><li>Ms Flavia Loures (Flavia.Loures@WWFUS.ORG) </li></ul></ul></ul><ul><ul><ul><li>wwf.panda.org/what_we_do/how_we_work/policy/conventions/water_conventions/un_watercourses_convention </li></ul></ul></ul>