- Context past 5 years working with WWF and others to look at the role and relevance of the UN Watercourses Convention, and raise awareness.
We all know that many states face water scarcity and this situation is likely to get worse through increased demands on the world’s water and impacts of climate change
- We also know that when tackling water issues we must account for the fact that a significant amount of the resource is transboundary; with most states relying to a greater or lesser extent on this resource
- We have also seen a wide and significant recognition that addressing the world’s water issues largely boils down to how we govern water
- Conversely, we have seen a downward trend in agreements related to international watercourses
The current legal architecture can therefore be described as fragmentedAt the global level the UNWC has yet to enter into force, and we are therefore largely reliant on general principles of international lawOnly two regions have mulii-basin agreements in place; the Europe and Southern AfricaThere are 400+ basin-specific agreements, but as UN-Water note…
- What, then, can the UN Watercourses Convention contribute?
- It was in 1970 that the UN General Assembly instructed the International Law Commission to take up the study of the law of the non-navigational uses of international watercourses
- The UN General Assembly recognised a number of reasons why there was a need for a global instrument, but primarily it saw such a framework as complementing basin practice in 3 key areas.
It’s important to acknowledge the process through which the Convention was adopted. This process involved extensive deliberation by states, and culminated in what was inevitably a hard fought, comprise text. Not satisfying everyone’s position, but something that was at least balanced in terms of upstream/ downstream/ developed/ developing/ economic priorities / environmental needs, and so forth. Interestingly in 1994, the UN General Assembly made the decision to negotiate a treaty on the basis of the Draft Articles that were submitted by the ILC. They could have easily gone down the route that they have with other ILC Articles, and simply encourage states to take account of the Draft Articles. In the case of the 1997 UN Watercourses Convention, there was a recognised need to develop a global instrument. Ultimately, 103 states voted in favour of the Convention, 26 abstained and Turkey, China and Burundi voted against. To date, there are 24 parties to the Convention, 11 short of the number needed for it to enter into force.
Now turning to contentThe Convention unsurprisingly recognizes the importance of international watercourses; takes note of the Articles 1 and 2 of the UN Charter in terms of international cooperation, peace and security, and so forth, Recognises the needs of present and future generations, international cooperation and good-neighbourliness, Rio Declaration and Agenda 21, and existing watercourse agreements.
The cornerstone substantive norm is that states must utilise their international watercourses in an equitable and reasonable manner; They must also take appropriate measures not to cause significant harm; and Must protect the ecosystems of international watercourses.
A real, often underappreciated, strength of the Convention is its process-oriented provisions. The value of such provisions is clearly summed up by Schachter…
- The main procedural rule is that of notification and consultation. States must therefore notify each other of planned measures that may have a significant adverse effect on their watercourse neighbours.
- Numerous other articles call for joint activities where appropriate.
- Joint institutional arrangements are also recognized as often being an important means by which to implement the substantive provisions
- The Convention also includes important provisions on dispute settlement, which obliges states to settle their disputes in a peaceful manner.
- So having briefly gone over the content and context of the convention, why should we push for entry into force?
First let me say something about why the convention hasn’t entered into force. Our activities around the Convention which have involved regional assessments of the Convention in Central America, South America, Central Asia, SE Asia, East Africa, West Africa, Southern Africa and Europe, as well as the numerous workshops, regional dialogues, etc that we have run shows that the content is not the main reason for non-entry into force. More plausible reasons relate to treaty congestion at the time when the Convention was adopted, a lack of awareness of the role and relevance of the Convention, misunderstandings over key provisions, and a lack of champions pushing for entry into force.
So why entry into force? At the global level the law of international watercourses is largely based on customary norms; having a convention stipulating the detailed substantive and procedural rules adds clarity and legitimacy; The convention could also act as a benchmark for developing international law furtherIt can support existing environmental conventions, such as the biodiversity convention and climate change convention given their complementary nature. And, provides a stronger precedence for informing the adoption of new agreements or revising existing ones. In terms of weaknesses. You can say that the lack of widespread formal support – through ratification – raises questions over the weight of the ConventionThere is no institutional mechanisms, such as a conference of the parties, that could assist in the implementation of the ConventionIt is a framework instrument, such much of the specifics would have to be negotiated at the basin level
What are the prospects of entry into force? Even states that previously abstained such as Uzbekistan and France have now ratified the Convention.Recent years have seen an upsurge in interest around the Convention. As we address some of the reasons for non-entry into force, eg lack or awareness, lack of champions, etc we are seeing positive resultsIn addition to these parties, a number of states have signaled that they are in the process of ratifying the convention, so entry into force in the foreseeable future looks likely. We can also hope that with 2013 being the Year of Water Cooperation there might a growing support.
- Here is a list of the parties to the convention just now.
- We are conducting a range of activities related to the convention. I have already mentioned the regional assessments, we are also developing a user’s guide to the Convention and on-line module, in June we will hold a global symposium on Convention iin June, we are publishing a book with Earthscan related to the Convention, and we are planning numerous dialogue and training workshops related to the Convention in Central America, East Africa, SE Asia. - We would be keen to hear from anyone what other activities we could do related to the convention at a country or regional level.
… and if you would like more information please have a look at the websites listed.
So, to sum up, Firstly, I believe that there is a need to strengthen the governance architecture for transboundary waters; Secondly, the UN Watercourses Convention is the most authoritative text we have at the global level; and Thirdly, raising awareness and developing shared understanding of the Convention will help ensure that its provisions are adopted and ultimately implemented. Thank you!
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 (firstname.lastname@example.org)
Transboundary Water ChallengesIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3
“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
“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
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
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
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
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
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
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
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
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
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
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
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
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
Reasons for non-entry into force Treaty Lack of congestion awareness Misundersta Lack of ndings champions
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
The Global InitiativeIHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 24
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