International Water Law Project Blog

The following post (Part II of II), by Dr. Alistair Rieu-Clarke (a.rieuclarke [at] dundee.ac.uk), IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO) and Ms. Flavia Loures (flavia.loures [at] wwfus.org), WWF, continues the debate initiated in Part I  concerning the importance of the entry into force of the UN Watercourses Convention for the codification and development of international water law.

Once in force, the 1997 UN Watercourses Convention (UNWC) would be better equipped to deal with the issue of fragmentation. To date, the legal architecture for international watercourses remains weak. While there are over 400 basin-specific agreements, 60 percent of international watercourses lack cooperative management arrangements, and the majority of agreements tend to be bilateral, even where more than two states share a particular watercourse (see article by Zawahri & Mitchell). Finally, many watercourse agreements fail to address key issues in transboundary cooperation, such as emergency situations, data-sharing, consultation and negotiation procedures, or dispute settlement. Such arrangements are ill-equipped to deal with current and future challenges and threats concerning the world’s finite freshwater supplies, such as population growth, climate change, ecosystem degradation, water insecurity, and so forth. Moreover, since 1997, despite the Convention having some influence – as noted in Part I – there has been a significant decline in the adoption rate of basin and sub-basin agreements, notwithstanding increased calls for stronger governance arrangements.

A global framework agreement, if in force, could play an important role in addressing such fragmentation by supplementing and strengthening the legal architecture where i) no basin agreement exists; ii) not all basin states are party to an existing agreement; and/or iii) an existing agreement only partially covers matters addressed by the UNWC.  It was in this sense that the Nordic Counties summed up the value of a framework agreement during the Convention’s drafting process, stating that it, ‘provides a good basis for further negotiations. It leaves the specific rules to be applied to individual watercourses to be set out in agreements between the States concerned, as has been the current practices’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993).

At the regional level, the 1992 UNECE Water Convention and the SADC Protocol on Shared Watercourses illustrate the role of framework instruments in addressing gaps and failings in basin and sub-basin agreements and, as discussed below, in supporting and facilitating the application, interpretation and implementation of those instruments. However, the aforementioned convention and protocol are the only examples of existing regional instruments. Therefore, the need for a global framework remains. Besides, regional instruments may fail to include all states within a certain international watercourse. Such is the case with the SADC Protocol as compared to the Congo and Nile basins.

The UNWC may also address fragmentation at the horizontal level. Entry into force would enable synergies to be developed between the Convention and other water-related multilateral environmental agreements, such as those dealing with climate change, biodiversity, wetlands, desertification and so forth (see report by Brels, Coates and Loures).

In addition, an effective UNWC would serve as a solid and widely accepted basis for the development of treaty law at the global level. In this regard, it is worth asking whether the ILC Draft Articles on Transboundary Aquifers would have been different if the Convention had already entered into force? Would the draft articles have ensured better integration between general international water law and the principles and rules applying specifically to shared groundwaters? Would countries be more open to considering the draft articles as a basis for a future groundwater protocol to the UNWC, rather than for a separate, independent convention that could possibly aggravate the issues of fragmentation and treaty congestion? (see article by Loures and Dellapenna).

From a political standpoint, formal and widespread support for the UNWC would send a definitive and clear message that, as codified in the Convention, international law requires states to cooperate over international watercourses, lakes and aquifers, including, where appropriate, through joint planning and actions, and within the framework of equitable and reasonable use and participation (see UNWC, Articles 5, 8, 20).

For lawyers, this may seem redundant, as the duty to cooperate is widely regarded as part of customary international water law. However, in the context of global water negotiations, an effective and widely endorsed UNWC could make a major difference. For example, during negotiations at the 6^th World Water Forum, one state raised the issue that the UNWC cannot even be referred to as a “convention”, because it is not yet in force. During the development of the ILC Draft Articles on Transboundary Aquifers, another state pointed out the need to avoid linking that instrument to the UNWC, because the latter is not in force and, therefore, may not reflect the status of customary law. More recently, the “water and sanitation” section of the Rio document is permeated by a nationalistic tone: it refers to “actions within the respective national boundaries” to protect ecosystems, while never mentioning transboundary water issues, watercourse agreements or the International Year on Water Cooperation (see UN Resolution 65/154). For those working on these issues, it was disheartening to follow the interstate discussions that preceded the adoption of that document, and which led to the deletion of the paragraph dealing with water cooperation at various levels.

Arguably, if the UNWC had been in force, states would have less room to manoeuvre for downplaying the duty of watercourse states to cooperate and the role of international law in this context, leaving more time for discussions on substantive issues. This can be exemplified by the good progress made on oceans in Rio within the framework of international law, as reflected in UNCLOS. Hence, entry into force of the Convention would provide the UN and other international organisations with a strong legal mandate by which to support and advance transboundary water issues at the global level – a mandate that is currently lacking (see WWF/DfID Report).

Closely related to the political considerations noted above, entry into force may also help assist a key factor inhibiting the effectiveness of the Convention, namely awareness. Our experience, based on stakeholder interviews and workshops, demonstrates that levels of understanding and awareness of the UNWC are relatively low amongst key government officials in places such as Central America, West Africa and South-East Asia. Arguably, therefore, because the Convention is not yet in force, it has not been as influential as it could and should be, simply because governments have prioritized treaties that have already entered into force and to which they are bound.

In conclusion, should we care if the Convention enters into force? Conversely, we might ask, given the above, whether we could actually afford not to bother with its ratification process.

The following post (Part I of II), by Dr. Alistair Rieu-Clarke (a.rieuclarke [at] dundee.ac.uk), IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO) and Ms. Flavia Loures (flavia.loures [at] wwfus.org), WWF, is based on experiences gained through a range of activities conducted as part of the UN Watercourses Convention Global Initiative.

During Rio+20, UK and Irish representatives announced that their respective Governments would accede to the 1997 UN Watercourses Convention (UNWC) to ensure that the world’s 276 international watercourses were governed in an equitable and sustainable manner. These announcements follow a growing wave of support for the Convention’s entry into force, which has recently seen Luxembourg become the 26^th contracting state, followed by Benin only a few weeks ago. Moreover, various global and regional institutions have urged States to accede to the Convention, including the European Commission (see Resolution 2012/2552(RSP)), the Niger Basin Authority  (see 2011 Bamako Declaration) and African Basin Organisations (see 2011 Bangkok Declaration).

Anticipation of the Convention’s imminent entry into force has also prompted the question, ‘what next’? In this regard, at the 6^th World Water Forum (Marseille, March 2012), France offered to host the 1^st meeting of the parties, and UN organisations, including the UN Economic Commission for Europe (UNECE), UNESCO and UNEP, were identified as potential candidates for ‘housing’ the Convention – whatever form that might take.

As momentum finally gathers around the UNWC – a keystone global legal instrument adopted over 15 years ago – the question at the forefront of discussions is, ‘why should we care’? Would entry into force of a global framework instrument on the law of the non-navigational uses of international watercourses really make a difference?

From the legal standpoint, a primary driver behind the UNWC was the codification and progressive development of international water law, which, in 1970, was recognised by the UN General Assembly as, ‘still based in part on general principles and rules of customary law’ (see  UN General Assembly Resolution 2669(XXV)). The value of the Convention was, therefore, to provide greater detail, clarity and certainty as to what was, and what should be, the applicable international law pertaining to the non-navigational uses of international watercourses.

Simply through its adoption by an overwhelming majority of UN Member States – after an extensive process of treaty drafting and negotiation – the Convention presents an authoritative statement of customary international law. In the Gabĉíkovo-Nagymaros case, for instance, the International Court of Justice made explicit reference to the UNWC only months after its adoption by the General Assembly. Additionally, numerous basin and sub-basin agreements adopted after 1997 have been influenced by the Convention: in the case of the SADC Protocol on Shared Watercourses, many of the key provisions were taken from the Convention almost verbatim.

Although the UNWC already enjoys an influential role, its current status leaves open to debate which of its provisions reflect existing or emerging customary law, as well as the content of those principles widely accepted as custom. If the Convention were to enter into force, it is likely to trigger a snowball effect, leading to wider ratification by a representative body of states. At that point, all its provisions would be considered as reflecting customary international law and thus become potentially binding even on non-parties.  Entry into force would also consolidate the content of the principles of equitable and reasonable use and harm prevention, as well as their relationship, as codified under the UNWC.

In this sense, entry into force and widespread ratification are necessary to ensure the successful completion of the task entrusted to the International Law Commission: that of codifying, clarifying and progressively developing the law of the non-navigational uses of international watercourses, with a view to offering a clearer, more stable framework for transboundary water cooperation at the global level.

It was for this reason that, during the Convention’s drafting process, the Nordic Countries cautioned that, ‘this [framework] approach should not lead solely to producing recommendations’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993). The statement alludes to the importance of a legally binding framework instrument. A legally binding text holds greater potential for shaping state practice at the basin level. The ratification process itself normally requires the government to conduct an extensive consultation process with a wide range of national stakeholders. Ratification also tends to provide a stronger assurance that the rules and principles contained within that instrument will be adhered to not only by the government in power, but also by its successors.

That said, an effective and widely endorsed UNWC, on its own, might have limited impact. For the Convention to fully meet its potential in supporting and facilitating transboundary water cooperation at all levels, the appropriate institutional arrangements must be in place by which to deepen knowledge and understanding of the Convention and its inherent rules, principles and aspirations. Evidence of the need and value of such arrangements can be seen in the case of the UNECE Water Convention. Through its meeting of the parties, secretariat, work programmes, implementation projects and so forth, the UNECE Water Convention has played an effective role across Europe and neighbouring regions in supporting implementation of basin and sub-basin arrangements. Exploring synergies between the UNECE Water Convention and the UNWC, therefore, provides considerable promise in ascertaining how ‘multi-basin’ treaty regimes can make a difference at the basin, sub-basin and national levels. In addition to global institutional mechanisms supporting the convention, such discussions should include the role of river basin and regional integration organizations as hubs for coordinating and monitoring the UNWC’s future implementation.

See Part II of this post here.