Two global transboundary water conventions: a catalyst for cooperation on shared waters

Nick Bonvoisin & Chantal Demilecamps, UN Economic Commission for Europe

Alistair Rieu-Clarke, Centre for Water Law, Policy and Science, University of Dundee

Why the need for global framework instruments?

• Significant reliance upon transboundary waters

• Fragmented system of legal arrangements

• Supports several scenarios

– Where no specific legal and institutional arrangement exists at the basin level

– Where weak legal and institutional arrangements exist at the basin level

– Where not all basin states are party to a basin agreement

• Support ≠ replace

• Fosters harmonisation between basins and regions

• Consolidates, clarifies and develops customary international law

• A platform for sharing experiences and good practice

• Supports capacity building and strengthen implementation

• Develops a legal regime through protocols, soft law instruments, etc.

• Strengthens ‘transboundary water’ profile at the global level, and fosters synergies with other global initiatives, eg climate change

• Permanent framework for the continuity and sustainability of transboundary cooperation over waters

What is the added value of global legal frameworks for

your work?

Evolution and current status

1997 UN Watercourses Convention

• 1959 UN General Assembly call for ‘preliminary studies on the legal problems relating to the utilisation and use of international rivers’

• 1970 – 1994 Text developed by International Law Commission, in collaboration with UN Member States

• 1996 - 1997 Convention negotiated by UN Member States in 6th Committee of UN General Assembly

• 1997 Convention on the Law of the Non-navigational Uses of International Watercourses adopted by UN General Assembly– 103(+3) votes in favour – 3 votes against – 27 abstentions

1997 UN Watercourses Convention

• 35 States required for entry into force• 31 contracting States so far

1992 UNECE Water Convention

• Negotiated in 1990-1992 through an intergovernmental process under the auspices of UNECE, largely relying on ILC Draft Articles process

• Negotiated originally as regional instrument

• Adopted on 17 March 1992, in force since 6 October 1996

• Protocol on Water and Health adopted in 1999, entered into force in 2005

• Protocol on Civil Liability adopted in 2003

Status of ratification of the Convention

38 countries and the European Union

PartiesCountries in accessionNon Parties

.

38 countries and the European Union

PartiesCountries in accessionNon Parties

Status of ratification of the Convention

2003 Amendment

• Opening up the Water Convention to all UN Member States => the Convention becomes a global instrument

• Aims: - apply the principles and provisions worldwide- share the experiences of the Convention- learn from other regions of the world

• Amendments entered into force 6 February 2013• Possibility all UN Member States to accede from late 2013-early

2014 when all 2003 Parties ratify the amendments• More than 40 non-ECE countries already participated in

Convention’s activities and many announced their interest to ratify (Iraq, Tunisia, Jordan..)

Two global transboundary water conventions –

contradictory or complementary?

Comparing the Conventions: Similarities – great!

• Protection, preservation and management of international watercourses (UNWC & UNECE WC)

• A ‘package of norms’ approach to substantive norms

– equitable and reasonable utilization– due diligence obligation of no-harm

• Principle of cooperation as catalyst for the implementation of the two substantive norms

• Almost same provisions with regard to dispute settlement

Comparing the Conventions: Differences – even better!

Two Conventions provide a stronger package of norms

•Existing watercourse agreements– Obligation to harmonise (Art 9(1), UNECE WC) – Recommendation to harmonise (Art 3(1), UNWC)

• Future watercourse agreements and joint institutions– Obligation to create (Art 9(1)&(2), UNECE WC)– Recommendation to create (Art 8(2) & 24), UNWC)

•Scope of Transboundary Waters – Surface water or groundwater (Art 1(1), UNECE WC) – Surface water and connected groundwater (Art

2(a), UNWC)– Nb: 2008 ILC Draft Articles on Transboundary Aquifers

Comparing the Conventions: Differences – even better!

Two Conventions provide a stronger package of norms

•Transboundary EIAs • Explicit obligation (Art 9(j), UNECE WC)• Implicit obligation (Art 7, UNWC)

•Public information–Explicit obligation (Art 16, UNECE WC) –No provision under UNWC – implicit?

Comparing the Conventions:Differences – even better!

More detailed provisions in one instrument can inform the other

•Appropriate measures to prevent harm– Detailed guidance under UNECE WC on appropriate

measures (eg, Art 3, UNECE WC)

•Equitable and reasonable • List of factors (Art 6, UNWC) can guide

implementation UNECE WC

•Exchange of information & planned measures• Obligation under both Conventions (Art 13 UNECE WC, Art

9, UNWC)• Generally more detailed under UNECE WC, although

developed provisions on planned measures under Part III of the UNWC

Comparing the Conventions• UNECE WC Institutional Framework, Part III

• No formal structure under UNWC• How can joint implementation be fostered?

Comparing the Conventions – conclusions

• Relationship of interpretation

– ‘When several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations’ (ILC Report on Fragmentation, 2006)

– ‘The globalisation of the [Water] Convention should also go hand-in-hand with the expected entry into force of the United Nations Watercourses Convention. These two instruments are based on the same principles. They complement each other and should be implemented in a coherent manner’ (UN Secretary-General, Ban Ki-Moon, 28 November 2012)

• As a package of norms both conventions reinforce each other

• States have joined both conventions (14 so far)

Questions?

Tools for promotion and implementation

Promotion

Promotion – Raising the profile of International Water

Law• Global awareness raising activities

– e.g. Stockholm World Water Week, Marseille World Water Forum, 6th Meeting of the Parties to the UNECE Water Convention.

• Regional awareness raising and training activities– e.g. SE Asia, East Africa and Latin America Workshops

• National training and awareness raising activates– e.g. Cambodia, Ethiopia, Tanzania, Viet Nam, Kyrgyzstan

• Future activities – France proposal to host first meeting of the parties to

1997 Watercourses Convention– Awareness raising at global, regional and national levels

critical to adoption and effective implementation

Implementation – UNECE Water Convention

• 20 years of experience in supporting transboundary water cooperation

• Capacity to adapt to changing conditions and to respond to countries demand

• Continuity of efforts that ensured sustained progress and long-term results

• Strong drive and ownership by Parties and the close involvement of non-Parties

• Capacity to build trust• Concrete deliverables

• Significant diversity within UNECE region• Water challenges

– Growing problem of water scarcity– Extreme events

• Political landscape• Economic and social conditions

UNECE Water Convention Work programme 2013-2015:

Area 1: Support to implementationArea 2: EU Water Initiative National Policy

Dialogues Area 3: Quantifying the benefits of

transboundary cooperation Area 4: Adapting to climate change in

transboundary basins

Area 5: Water- food-energy-ecosystems nexus Area 6: Opening of the Convention Area 7: Promotion of the Convention and

establishment of strategic partnerships

• Objectives: Support countries to estimate the full range of potential benefits of transboundary water cooperation to encourage the broadening of cooperation

• Methodology: Development of a Policy Guidance Note on Identifying, Quantifying and Communicating the benefits of transboundary water cooperation

• Activities: – Expert framing workshop (June 2013)– Workshop during the GEF IWC7 (October 2013)– Workshop to gather & share experiences (22-23 May

2014)– Expert Workshop to finalize the policy guidance note

and discuss next steps (Nov. 2014, tbc)

More info at: http://www.unece.org/env/water/ benefits_cooperation.html

Programme area 3: Quantifying the benefits of transboundary

water cooperation

• Programme of pilot projects and global network of transboundary basins working on adaptation to climate change- GEF projects and basins are welcome to join!

• Global platform for exchanging experience: annual workshops with participation of GEF projects since 2011, next one on 113-14 October 2014

• Collection of good practices and lessons learned to be prepared by 2015

• Based on the UNECE Guidance on Water and Adaptation to Climate change

Programme area 4: Adapting to climate change in transboundary

basins

Programme area 5: Water-food-energy-ecosystems nexus –

assessment of selected basins• A conceptual picture of the nexus developed, substantiated with

indicators & quantification of selected aspects, future scenarios

• Identification of synergies and opportunities for benefits from co-management, inter-sectoral coordination & transboundary cooperation through a participatory inter-sectoral process and supporting analysis

• Some 6-8 basins to be assessed in Africa, Asia and pan-Europe

• The methodology piloted on the Alazani/Ganyh (GE, AZ); basin assessments Jan 2014-April 2015; report 2015

Support to implementation through soft law development

• Water pollution by hazardous substances (1994)• Water pollution from fertilizers, pesticides (1995)• Licensing of wastewater discharges (1996)• Monitoring & assessment of rivers & lakes (1996)• Monitoring & assessment of transboundary

groundwaters (2000)• Sustainable flood prevention (2000)• Safety of pipelines (2006)• Payments for ecosystem services (2007)• Transboundary flood management (2007)• Safety of tailing management facilities (2009)• Water and adaptation to climate change (2009)• Guide to Implementing the Water Convention

(2009)• Transboundary groundwaters (2012)…

Practical support to establish cooperation: Tajik-Afghan

example

Establishing cooperation on hydrology and environment in upper Amudarya:– bilateral working group– exchange of hydrological data– visits to hydrological monitoring stations– cooperation with border guards– first steps: cooperation in flood management

and emergency situations, agreeing on compatible hydrological monitoring equipment, methods, models

– vision for the future: integrating Afghanistan in the Aral Sea cooperation (IFAS)

Intergovernmental bilateral Dniester Basin Treaty of the Republic of Moldova and Ukraine (Rome, 29 November 2012)

– taking the best of the two Conventions

The Water Convention and the GEF IW

• Cooperation in joint workshops:– Workshop on transboundary water cooperation: Latin

American and Pan-European regions: sharing experiences and learning from each other  (11 - 12 June 2013)

– International Roundtable on Transboundary Water Resources Management in the Southern Mediterranean  (26 - 27 November 2012)

– GEF IW projects African Workshop (November 2012)– Workshop on Adaptation to Climate Change in

Transboundary Basins  (2013, 2012, 2011)

• Cooperation within projects:– Work on the Alazani / Kura river basin on Nexus

Assessment: existing GEF project– Work on the Drin basin: initiated a GEF project

Cooperation in the Drin River Basin

• Drin Dialogue was facilitated by UNECE and GWP-Med using the platform of the UNECE Water Convention and the Petersberg Phase II/Athens Declaration Process

• 5 Drin River Riparians signed a MoU on a Shared Strategic Vision for the Sustainable Management of the Drin River Basin

• A GEF project will contribute to the further development of cooperation in the basin

Which tools are useful to you?

How could the Conventions support your work further?

Thank you!

More information

http://unece.org/env/water

water.convention@unece.org

http://www.unwatercoursesconvention.org

a.rieuclarke@dundee.ac.uk