Consultation on Enhancing Security in                                                       IHP-HELP Centre for Water     ...
Outline1. Water and international law2. Existing legal framework3. Key elements of a legal regime4. Points for reflection
Water and International Law
Water  Nature: surface/groundwater, hydrological and climate variability  Needs: food, energy, environment, health  Goa...
International Law   A product of the wills and practices of states (& indirectly other actors)   A product of political ...
International law as applied to water        “Rules of the game”                                    3 key functions   Sys...
Who gets what, when, why, how?  1. Identify the applicable law (exiting legal framework)      ‘It is not a matter of findi...
Existing legal framework:treaty and customary law
Treaties between the CARs   1992 Almaty Agreement – Soviet management status quo, institutions    (ICWC, BWOs)   1993 Kz...
Treaties between Afghanistan and USSR  1843, 1946, 1958, 1961 &1964 Agreements on   boundary issues and navigation  Stat...
Participation in regional conventions Convention                                                  Af     Kz     Kg Tj     ...
Participation in global conventions    Convention                                       Af Kz Kg             Tj       Tm  ...
Customary law  • Equitable and reasonable use  • No significant harm  • Duty to cooperate  • Obligation to exchange inform...
Key elements of legal regime or        ‘the rules of the game’
Identifying the key elements of legal regime                                                          What uses?          ...
Key elements of legal regime in the ASB            Scope                                     Don’t include all riparians  ...
Points for reflection
Legal cooperation between Afghanistan and CARs       Existing fora          Customary law: ERU, no-harm rule, duty to co...
UNESCO HELP Centre for Water Law, Policyand Science  • Vision: Water for All  • Mission: Building a new    generation of l...
Water Law Water Leaders (WLWL)        Focus: WLWL                                                   Water leader     “The ...
Water Law Water Leaders (WLWL)    WLWL Summer School    Format and Features                                               ...
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Ziganshina law unesco centre_brussels_7 dec 2010_dz_updated

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Ziganshina law unesco centre_brussels_7 dec 2010_dz_updated

  1. 1. Consultation on Enhancing Security in IHP-HELP Centre for Water Law, Policy & ScienceAfghanistan and Central Asia through UNESCORegional Cooperation on WaterEuropean Parliament, Brussels Regional Cooperation on Water: An International Law Perspective 7 December 2010 Dinara Ziganshina |
  2. 2. Outline1. Water and international law2. Existing legal framework3. Key elements of a legal regime4. Points for reflection
  3. 3. Water and International Law
  4. 4. Water  Nature: surface/groundwater, hydrological and climate variability  Needs: food, energy, environment, health  Goals: peace and security, development, cultural, spiritual, ecological  Scale: individual, sub-national, national, transboundary, regional, global  Science: science and technology based  Actors: states, governmental and non-governmental agencies, groups, individuals, IFIs, etc  Water management is context specific  Dynamic and flexible laws to respond and adapt in a timely manner to new information, situations and scientific understandings  Predictability of actions “Water is a challenging issue for international law” Philippe Sands QC, 2010IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4
  5. 5. International Law A product of the wills and practices of states (& indirectly other actors) A product of political and social processes An instrument to meet changing ends and value Lacks centralised authority to determine what law is and enforce it Operates in diverse political, economic, social and cultural environment and multi-level governance context  Stability/Predictability - Change/Flexibility  Generality - Specificity  Common values - self-interest  States - other actors  Bilateral, basin, regional, global levelsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5
  6. 6. International law as applied to water “Rules of the game” 3 key functions  System of rules that 1. Defines rights and obligations regulate the behaviour of sovereign states and other 2. Provides tools for the actors in the area of water integrity of the regime (e.g. monitoring, compliance,  Framework for decision- dispute settlement) making and implementation 3. Allows for modifications of the existing regime  Promotes regional peace and security (adaptability) Who gets what, when, why, how? Adapted from Wouters, 2009IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6
  7. 7. Who gets what, when, why, how? 1. Identify the applicable law (exiting legal framework) ‘It is not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law’ ICJ, Fisheries Jurisdiction, 1974 Art 38 (1), Statute of the International Court of Justice treaties, custom, general principles and subsidiary sources (judicial decisions and the writings of experts) 2. Identify ‘the rules of the game’ (key elements) scope, substantive and procedural rules, institutional mechanism and dispute settlementIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 7
  8. 8. Existing legal framework:treaty and customary law
  9. 9. Treaties between the CARs  1992 Almaty Agreement – Soviet management status quo, institutions (ICWC, BWOs)  1993 Kzyl-Orda Agreement – Joint activities on Aral Sea crisis  1996 Agreement – Uzb & Tm water use on Amudarya  1998 Syrdarya Agreement – Water and energy use in Syrdarya basin  1998 Environmental Cooperation Agreement - (Kz, Kg & Uzb)  1999 Parallel Operation of the Energy Systems of CARs  1999 Int’l Fund for saving Aral Sea (IFAS) status Agreement  2006 Convention on Sust. Dev’t in CARs (not in force, signed Kz, Tj, Tm)  Draft Agreements under Aral Sea Basin Programs – 1994 – ASBP-1 – regional strategy – 2002 – ASBP-2 – 14 legal instruments – 2010 – ASBP-3IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 9
  10. 10. Treaties between Afghanistan and USSR 1843, 1946, 1958, 1961 &1964 Agreements on boundary issues and navigation Status of the treaties Article 12 of the 1978 Vienna Convention on Succession of States in Respect of Treaties “succession of States does not affect … obligations *or+ … rights established by a treaty … relating to the use of any territory … and considered as attached to that territory” (art 11) or “relating to the regime of a boundary” (art 12) Article 12 reflects a rule of customary international law (ICJ in Gabcikovo- Nagymaros case )IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 10
  11. 11. Participation in regional conventions Convention Af Kz Kg Tj Tm Uz 1992 UNECE Water ? √ - - - √ 1991 UNECE Espoo - √ √ s - - 1992 UNECE Industrial accidents - √ - - - - 1998 UNECE Aarhus - √ √ √ √ - 1992 CIS Environmental Interaction - √ √ √ √ √ 1998 CIS Transboundary Watercourses - s - √ - - 1998 CIS Informational Cooperation - √ √ √ - -1992 Water – UNECE Convention on the Protection and Use of Transboundary Watercourses andInternational Lakes (2003 Amendment to allow accession by countries outside the UNECE region, notin force yet); 1991 Espoo – UNECE Convention on Environmental Impact Assessment in a TransboundaryContext; 1992 Industrial Accidents – UNECE Convention on the Transboundary Effects of IndustrialAccidents; 1998 Aarhus – UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters; 1992 CIS Environmental Interaction –Agreement on Interaction in the field of ecology and the environmental protection; 1998 CISTransboundary Watercourses - Agreement on the Main Principles of Interactions in the field of RationalUse and Protection of Transboundary Watercourses of the CIS; 1998 CIS Informational Cooperation -Agreement on Informational Cooperation in the field of Ecology and the Environmental Protection IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 11
  12. 12. Participation in global conventions Convention Af Kz Kg Tj Tm Uz 1997 UN Watercourses - - - - - √ 1971 Ramsar - √ √ √ √ √ 1992 UN CBD √ √ √ √ √ √ 1992 UN FCCC √ √ √ √ √ √ 1994 UN Desertification √ √ √ √ √ √1997 UN Watercourses - Convention on the Non-navigational Uses of International Watercourses21 contracting states - 14 short of the number required for entry into forceMEAs: 1971 Ramsar - Convention on Wetlands of International Importance, especially as WaterfowlHabitat; 1992 CBD – UN Convention on Biological Diversity; 1992 UNFCCC – UN Framework Conventionon Climate Change; 1992 Desertification – UN Convention to Combat Desertification in those CountriesExperiencing Serious Drought and/or Desertification, particularly in AfricaIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 12
  13. 13. Customary law • Equitable and reasonable use • No significant harm • Duty to cooperate • Obligation to exchange information on a regular basis and on planned measures • Obligation to consult with other riparian states • Obligation of prior notification on planned measures • Obligation to conduct assessments 1997 UN Convention – codification, clarification and the framework for development of customary lawIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13
  14. 14. Key elements of legal regime or ‘the rules of the game’
  15. 15. Identifying the key elements of legal regime What uses? Scope What waters? Who is entitled to use what water What users? Defines rights & Substantive Rules responsibilities of Equitable and reasonable use users Implementation • Procedural Rules Ensures compliance • Institutional mechanisms and accommodates • Dispute changes in avoidance/settlement circumstances Adapted from Wouters, 2009IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 15
  16. 16. Key elements of legal regime in the ASB Scope Don’t include all riparians Ecosystems? Groundwaters? Substantive rules Equitable and reasonable use; No significant harm; Environmental protection Procedural rules Duty to cooperate; exchange information; consult; notify and assess Institutional Basin: IFAS, ICWC & BWOs UNECE: MoP, Implementation Committees mechanism CIS: Interstate Ecological Council Global: MEAs institutional bodies The Ministers of Water Resources of the CARs, Dispute settlement impartial 3rd party (1992 Almaty); ad hoc arbitral tribunal (1998 Syrdarya), other meansIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 16
  17. 17. Points for reflection
  18. 18. Legal cooperation between Afghanistan and CARs  Existing fora  Customary law: ERU, no-harm rule, duty to cooperate, exchange information, consult, notify, assess  Water-related MEAs: CBD, UNFCCC, Desertification  Future developments  Possibly within 1997 UN and 1992 UNECE Conventions  New basin agreements to include Afghanistan and specify the general rules of customary law for the basin needs  Focus on implementation and compliance  Highly contextual substantive rules requires well developed procedural and institutional systems at place  Responses are layered: multi-level governance context  A sense of obligation must be cultivated at the international level and connected into states’ domestic spheres  Lawyers, policy-makers, and scholars can promote norm- internalization – one of the ways to build capacity on IWL IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18
  19. 19. UNESCO HELP Centre for Water Law, Policyand Science • Vision: Water for All • Mission: Building a new generation of local water leaders • Core Activities: – Research – Water Law, Water Leaders www.dundee.ac.uk/waterIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19
  20. 20. Water Law Water Leaders (WLWL) Focus: WLWL Water leader “The most creative, fruitful Water Law and innovative thinking thrives at the interfaces between disciplines where ideas, technologies and knowledge collide, yielding fresh perspectives and approaches” (University of Dundee Annual Report ‘08) Science Policy 20IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 20
  21. 21. Water Law Water Leaders (WLWL) WLWL Summer School Format and Features Core Modules • single modules available • distance learning induction International • orientation week • 3 x 3 week blocks of tuition Water Law and assessment (3rd week) • leadership training included. Comparative National Regulation of Water Law Water ServicesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 21

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