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Dehli nov2011

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Dehli nov2011

  1. 1. IHP-HELP Centre for Water“Rivers: Perspectives and Challenges for Asia” Law, Policy & Science18-20 November 2011, New Delhi UNESCO The Role & Relevance of the 1997 UN Watercourses Convention20th November 2011 Dr Alistair Rieu-Clarke (arieuclarke@dundee.ac.uk)
  2. 2. Why bother?
  3. 3. Transboundary Water ChallengesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3
  4. 4. “All transboundary water bodies create hydrological, social and economicinterdependencies between societies. They are vital for economic development, reducing poverty and contributing to the attainment ofthe Millennium Development Goals” UN-Water
  5. 5. “There is a water crisis, and there is an increasing understanding that it is a crisis of governance rather than one of physical scarcity of water” (UNEP, 2008)“I urge Governments to recognize the urbanwater crisis for what it is — a crisis ofgovernance, weak policies and poormanagement, rather than one of scarcity.”UN Secretary General Ban Ki-moon, 2011 "This crisis is one of water governance, essentially caused by the ways in which we mismanage water,” UNWWDR, 2006
  6. 6. Adoption of International Watercourse Agreements Number of Agreements 20 18 16 14 12 10 8 6 4 2 0 Source: http://www.transboundarywaters.orst.edu/database/IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6
  7. 7. International Architecture for Transboundary Governance: A fragmented system UN Watercourses Convention (not yet in force) Global MEAs (Biodiversity, Climate Change, Ramsar, Desertification) Customary international law (basic Architecture principles) Regional SADC Protocol UN ECE Watercourses Convention“Existing agreements are sometimes not sufficientlyeffective to promote integrated water resources EC Water Framework Directivemanagement due to problems at the national andlocal levels such as inadequate water managementstructures and weak capacity in countries toimplement the agreements as well as shortcomings Basin & Sub- 400+ treaties signed since 1820in the agreements themselves (forexample, inadequate integration of aspects such as basin 158 basin lack cooperative management frameworkthe environment, the lack of enforcementmechanisms, limited – sectoral – scope and non- Majority of treaties bilateralinclusion of important riparian States)” – (UN-Water, Transboundary Waters: SharingBenefits, Sharing Responsibilities, ThematicPaper, 2008) National and sub-national
  8. 8. Why the UN Watercourses Convention?
  9. 9. UN GA Resolution 2669 (XXV), 8th December 1970 • Population growth, increasing and multiplying needs and demands for water, limited supply, need to preserve and protect of great importance to all nations • Importance of legal problems relating to the use of international watercourses • Fragmentation of international law (bilateral treaties and regional regulations) • Need for International Law Commission to take the study of the law of the non-navigational uses of international watercoursesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 9
  10. 10. The Need for a Global Framework Instrument ‘…the framework agreement approach, adopted by the Commission in drafting the articles provides a good basis for further negotiations. It leaves the specific rules to be applied to individual watercourses to be set in agreements between the States concerned, as has been the current practice.’ (Replies of Governments to the Commissions questionnaire, 1993) 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 rulesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 10
  11. 11. Process Year Event1970 UN GA Resolution 2669 (XXV)1976 – 1994 15 ILC Special Rapportuer Reports1991 ILC Draft Articles submitted to UN GA1993 Replies from Government to Draft Articles1994 Revised ILC Draft Articles submitted to UN GA1996-1997 UN GA Sixth (legal) Committee to negotiate text of the Convention1997 UN Watercourses Convention adopted by 38 sponsors, 103 votes in favour, 26 abstentions and 3 against2011 24 PartiesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 11
  12. 12. Preamble • Conscious of the importance of international watercourses and the non-navigational uses thereof in many regions of the world, … • Considering that successful codification and progressive development of rules of international law regarding non-navigational uses of international watercourses would assist in promoting and implementing the purposes and principles set forth in Articles 1 and 2 of the Charter of the United Nations • Taking into account the problems affecting many international watercourses resulting from, among other things, increasing demands and pollution, • Expressing the conviction that a framework convention will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations, • Affirming the importance of international cooperation and good-neighbourliness in this field, • Recalling the principles and recommendations adopted by the United Nations Conference on Environment and Development of 1992 in the Rio Declaration on Environment and Development and Agenda 21, • Recalling also the existing bilateral and multilateral agreements regarding the non-navigational uses of international watercourses…IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 12
  13. 13. Key Provisions – Substantive Norms Equitable and No significant reasonable harm utilization Protection and preservation of ecosystemsIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13
  14. 14. Key Provisions – Procedural It is reasonable … that procedural requirements should be regarded as essential to the equitable sharing of water resources. …. In the absence of hard and precise rules of allocation, there is a relatively greater need for specifying requirements for advance notice, consultation, and decision procedures. Schachter, Sharing the World’s Resources (Columbia Uni Press New York 1977)IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 14
  15. 15. Notification process under 1997 UN Watercourses ConventionNo notification option State B State A request to justifies no Consulta apply Art. notification -tion 12 to State B Declaration Planned Measure Proceed of urgency Proceed to State B by State A Timely notificati on to Consulta State B -tionIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 15
  16. 16. Key Provisions – ProceduralStrong emphasis on process and cooperation Equitable participation Duty to cooperate Regular exchange of data and information “Where appropriate, jointly…”  Protect and preserve the ecosystems of international watercourses  Respond to needs or opportunities for regulation of the flow of waters of an international watercourse  Prevent or mitigate conditions … that may be harmful to other watercourse States, whether resulting from natural causes or human conduct, such as flood or ice conditions, water-borne diseases, siltation, erosion, salt- water intrusion, drought or desertification  Take all practicable measures necessitated by the circumstances to prevent, mitigate and eliminate harmful effects of an emergencyIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 16
  17. 17. Key Provisions – Joint Institutions Article 24(1) Management “Watercourse States shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism”IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 17
  18. 18. Key Provisions – Dispute Settlement Must settle disputes by peaceful means May jointly seek good offices, mediation or conciliation Use joint watercourse institutions where established Submit dispute to arbitration or ICJ Compulsory third party fact findingIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18
  19. 19. Why push for entry into force?
  20. 20. Reasons for non-entry into force Treaty Lack of congestion awareness Misundersta Lack of ndings champions
  21. 21. Prospects for entry into force4 Parties3 24 parties / 35 needed2 entry into force10 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
  22. 22. The Global InitiativeIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 24
  23. 23. More information… • wwf.panda.org/what_w e_do/how_we_work/p olicy/conventions/water _conventions/un_water courses_convention/ • www.dundee.ac.uk/wat er/projects/unwcglobali nitiative/IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 25
  24. 24. THANK YOU!

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