Ziganshina law unesco centre_brussels_7 dec 2010_dz_updated
1. Consultation on Enhancing Security in
IHP-HELP Centre for Water
Law, Policy & Science
Afghanistan and Central Asia through
UNESCO
Regional Cooperation on Water
European Parliament, Brussels
Regional Cooperation on Water:
An International Law Perspective
7 December 2010 Dinara Ziganshina |
2. Outline
1. Water and international law
2. Existing legal framework
3. Key elements of a legal regime
4. Points for reflection
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, 2010
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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 levels
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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, 2009
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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 settlement
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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-3
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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 )
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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 and
International Lakes (2003 Amendment to allow accession by countries outside the UNECE region, not
in force yet); 1991 Espoo – UNECE Convention on Environmental Impact Assessment in a Transboundary
Context; 1992 Industrial Accidents – UNECE Convention on the Transboundary Effects of Industrial
Accidents; 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 CIS
Transboundary Watercourses - Agreement on the Main Principles of Interactions in the field of Rational
Use 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
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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 Watercourses
21 contracting states - 14 short of the number required for entry into force
MEAs: 1971 Ramsar - Convention on Wetlands of International Importance, especially as Waterfowl
Habitat; 1992 CBD – UN Convention on Biological Diversity; 1992 UNFCCC – UN Framework Convention
on Climate Change; 1992 Desertification – UN Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, particularly in Africa
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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 law
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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, 2009
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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 means
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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
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19. UNESCO HELP Centre for Water Law, Policy
and 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/water
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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
20
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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 Services
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