1. IHP-HELP Centre for Water
3rd Nile Basin Development Forum
Law, Policy & Science
Kigali, Rwanda
UNESCO
Climate Change and its Implications for
Sustainable Development and Cooperation
in the Nile Basin – Threats and
Opportunities to Nile Basin Cooperation
26-28 Oct 2011 Professor Dr Patricia Wouters

2. IHP-HELP Centre for Water
3rd Nile Basin Development Forum
Law, Policy & Science
Kigali, Rwanda
UNESCO
Coping by Cooperating:
Addressing transboundary dimensions of
climate change - Dynamic Cooperation
27 Oct 2011 Professor Dr Patricia Wouters

3. Coping by Cooperation
1. Global Water & Climate Change Transboundary
Challenges
2. Rule of Law as platform for Dynamic Cooperation
3. Responding to the Challenges
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3

4. The Global Water Challenge
No development 1.2 billion
without water without safe
drinking
water and
1.4 billion km3 of 2.4 billion
water on Earth without
sanitation
Only a fraction widening
readily available water gap
Growing issues of availability, access, and addressing
conflicts-of-use
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4

5. Availability and Access issues: Too little…
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5

6. Availability and Access issues: too much
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7. Global water security threat
C. J. Vörösmarty et al., 'Global Threats to Human Water Security and River Biodiversity', 467 Nature (2010) 7315, 555.
• Water Security – ‘the state of having secure access to water; the assured
freedom from poverty of, or want for, water for life.’[P. Wouters, 2005]
• 80% of population exposed to high levels of threat to water security…
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8. Competing Security Challenges| the FEW Nexus
1 bn suffer from hunger
30-50%  in demand by 2030
1.5 bn without access
to electricity
2.5 bn without access to
modern forms of energy
40%  in demand by 2030
0.9 bn lack access to safe water
2.4 bn lack access to
improved sanitation
40%  in demand by 2030
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9. Water Security: competing demands
WSAF:
1. Legal What?
framework Availability
2. Informed by
science
3. Dynamic
Access
Why?
Who? Addressing
Conflicts-of-
use
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10. Water | Competing (in)securities
Water Security: “the availability of an
acceptable quantity and quality of
water for health, livelihoods,
ecosystems and production, coupled
with an acceptable level of water-
related risks to people, environment
and economies” [Grey and Sadoff
2007]
Food Security: “when all people at all
times have access to sufficient, safe,
nutritious food to maintain a healthy
and active life” *WHO 1996]
Energy Security: “the uninterrupted
physical availability [of energy] at a
price which is affordable, while
respecting environment concerns”
[IEA 2011]
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11. Conflicts-of-use - Water security challenges
BBC News
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12. Conflicts-of-use over water?
Hydro-diplomacy?
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13. Water knows no frontiers
“Fierce competition for
freshwater may well become a
source of conflict and wars in
"Water knows no frontiers; the future.” (Annan, 2001)
as a common resource it
demands international “But the water problems of
cooperation” our world need not be only a
Principle XII of the European Water 1967 cause of tension; they can also
be a catalyst for cooperation
[...] If we work together, a
secure and sustainable water
future can be ours.”
(Annan, 2002)
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13

14. Platform for Cooperation = The Law of Nations
“to maintain international
peace and security …
and ...
the fundamental freedoms
of all … “
UN Charter
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 14

15. International Water Law / Law of Nations
Law of nations
Transboundary
Rule of law
waters
Hydro- Hydro-
Water security
solidarity diplomacy
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16. Building Certainty: Legal Analytical Framework
Scope What uses?
What waters?
What users?
Substantive Rules Defines rights &
Equitable and responsibilities of users
reasonable use
Implementation Ensures compliance and
Procedural Rules accommodates changes
Institutional mechanisms
Dispute avoidance
in circumstances
/settlement
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17. Building Certainty: Legal Analytical Framework
Key Elements Details
1. Scope • Legal reach (what waters?)
• Definitions (watercourse; uses)
• Parties (States; RIEOs)
2. Substantive Rules • Legal duties & entitlements (equitable and
reasonable utilisation; due diligence; protection)
• Rules of substance (general or precise)
3. Procedural Rules • Rules of procedure (duty to cooperate as bridge)
• Notification / exchange of information
4. Institutional • Joint bodies (RBOs)
• Conference of the Parties (MoP)
Mechanisms • Organisations / organs (Ministerial level; other)
5. Dispute Settlement • Dispute avoidance (consultation)
• 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 | 17

18. Climate change impacts on the Nile (IPPC)
1. Uncertainty • High uncertainty:
– flow of the Nile
2. Increased – Projected rainfall patterns &
influence of complex water
water stress in management and water
all sectors governance structures
– Impact of sea-level rise
3. Impact of – Temperature rises impact
with decreasing crop water-
external forces use efficiency
– Other++
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18

19. Climate Change – addressing uncertainties
Uncertainty
- Climate
change++
Certainty
- Legal
framework
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19

20. Building certainty: Rule of Law
Treaty / customary law:
1. Substantive rules
(equitable and
reasonable utilisation)
2. Procedural rules (duty
to notify and exchange
information)
3. Institutional
Mechanisms (remit)
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21. Rule of law: Universal Treaty: 1997 UN WC
• 1997 UN Watercourses Convention (AFW)
– Scope: Art 1
– Substantive rules: Art 5-7, 10
– Procedural rules: Art 8, 9, 11-19
– Institutional mechanisms: Art 8, 24
– Dispute resolution: Art 33
• Evolution from both customary and treaty law
– Identifiable corpus of substantive and procedural
rules (codification and progressive development)
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22. Substantive Rule: Equitable and Reasonable Use
Art. 5 UNWC - Watercourse Art. 7 UNWC - 1. Watercourse States shall,
States shall in their respective in utilizing an international watercourse in
their territories, take all appropriate
territories utilize an measures to prevent the causing of
international watercourse in significant harm to other watercourse
an equitable and reasonable States.
manner. In particular, an 2. Where significant harm nevertheless is
international watercourse caused to another watercourse State, the
shall be used and developed States whose use causes such harm shall, in
the absence of agreement to such use, take
by watercourse States with a all appropriate measures, having due regard
view to attaining optimal for the provisions of articles 5 and 6, in
utilization thereof and consultation with the affected State, to
benefits therefrom consistent eliminate or mitigate such harm and, where
with adequate protection of appropriate, to discuss the question of
compensation.
the watercourse.
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23. Implementing the Rule of Law
Art. 6 UN WC - Factors relevant to equitable and
reasonable utilization
Art. 6 (2) In the application of
1.Utilization of an international watercourse in an article 5 or paragraph 1 of this
equitable and reasonable manner within the article, watercourse States
meaning of article 5 requires taking into account
all relevant factors and circumstances, including: concerned shall, when the need
(a) Geographic, hydrographic, hydrological, arises, enter into consultations in
climatic, ecological and other factors of a natural
character;
a spirit of cooperation.
(b) The social and economic needs of the
watercourse States concerned;
(c) The population dependent on the watercourse 3.The weight to be given to each
in each watercourse State; factor is to be determined by its
(d) The effects of the use or uses of the
watercourses in one watercourse State on other
importance in comparison with
watercourse States; that of other relevant factors. In
(e) Existing and potential uses of the watercourse; determining what is a reasonable
(f) Conservation, protection, development and
economy of use of the water resources of the
and equitable use, all relevant
watercourse and the costs of measures taken to factors are to be considered
that effect; together and a conclusion
(g) The availability of alternatives, of comparable
value, to a particular planned or existing use. reached on the basis of the
whole.
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 23

24. Duty to Cooperate – the BRIDGE
Art. 5(2) UNWC - Watercourse Art. 8 UN WC General
States shall participate in the obligation to cooperate -
use, development and protection
Watercourse States shall
of an international watercourse
in an equitable and reasonable cooperate on the basis of
manner. sovereign equality,
Such participation includes both territorial integrity, mutual
the right to utilize the benefit and good faith in
watercourse and the duty to order to attain optimal
cooperate in the protection and utilization and adequate
development thereof, as
protection of an
provided in the present articles.
international watercourse
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25. Dynamic Cooperation in practice
“…cooperative action by
watercourse States is
necessary to produce Substantive
maximum benefits for each
of them, … In short, the • shall cooperate
attainment of optimal
utilization and benefits
entails cooperation between
watercourse States through
their participation in the
Procedural
protection and development
of the watercourse.” • cooperative actions
UN WC commentary
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26. Dynamic Cooperation on the Nile
1. Substantive Rules
-- equitable and reasonable
utilisation
2. Procedural Rules
-- exchange information
-- duty to notify
-- procedures for planned
measures
3. Institutional
Mechanisms
-- River basin organisation
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27. Addressing Water Security: Dynamic Cooperation
The only thing that will redeem mankind is cooperation
Bertrand Russell
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 27

28. Dynamic Cooperation: streams of action
• We should view every regional 5 streams of action
watershed or aquifer as an 1. Capacity development
opportunity for stronger (local, 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 | 28

29. Context for Adaptive Governance
Disciplinary Interface
Int’l / Global
Environmental
Economic
Regional
Political
Societal
Scale
National
Human
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 29

30. Governance and Dynamic Cooperation
1. accountability
2. participation
3. predictability
4. transparency
Institutional
mechanisms
Procedural
rules
Substantive
rules
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 30

31. Dynamic Cooperation in practice: H20
The H20 paradigm
H H O
• Hydro- • Hydro- • Opinio
diplomacy solidarity Juris
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 31

32. Adaptive Governance Framework
Dynamic Cooperation
Institution
• UN Charter • Exchange
• Treaty • Structure information
• Custom • Mandate • Notify
• Authority • Process
Rule of law
Procedure
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 32

33. Building Hydro-diplomacy - 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 | 33

34. Addressing transboundary challenges
1. Dynamic Cooperation: rule of law --
substantive rules + procedural rules +
institutional mechanisms
2. Enhanced local capacity: local water leaders
3. Communities of action: hydro-diplomacy +
hydro-solidarity approach
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35. Invitation to Scotland as a Hydro-Nation
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36. THANK YOU !
Dundee
UNESCO Centre for
Water Law, Policy & Science

37. Thank you!
www.dundee.ac.uk/water
p.k.wouters@dundee.ac.uk
www.glasgow2015.org