La entrada en vigor de la Convención de Naciones Unidas sobre Cursos de Agua Internacionales (The entry into force of the UN Convention on International Watercourses)

October 13th, 2014

The following post is by Dr. Nicolás Boeglin of the la Facultad de Derecho de la Universidad de Costa Rica. It was prepared in Spanish to broaden the discussion about the 1997 UN Watercourses Convention and encourage the conversation in the Spanish-speaking world. The IWLP welcomes such opportunities and looks forward to engaging with friends and colleagues in multiple languages and regions globally.

El siguiente artículo del Dr. Nicolás Boeglin (Costa Rica) analiza el significado de la entrada en vigor de la Convención de Naciones Unidas de 1997 sobre Cursos de Agua Internacionales desde la perspectiva de América Latina. El Dr. Boeglin es profesor de derecho internacional público en la Facultad de Derecho de la Universidad de Costa Rica y es consultor en esta materia. Puede ser contactado al siguiente correo: nboeglin (a) gmail.com.

El pasado mes de agosto, al cumplirse los 90 días posteriores a la ratificación número 35 (Vietnam, en mayo del 2014), entró oficialmente en vigor la “Convención sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación“, adoptada en 1997 por la Asamblea General de las Naciones Unidas.

Se trata de un instrumento internacional que, de acuerdo a la práctica del derecho internacional cuando se trata de explorar nuevo ámbitos normativos, recurre a la técnica jurídica de la convención marco (“framework convention” en inglés): esta expresión refiere a textos normativos que sistematizan un conjunto de principios generales que puedanervir de base para establecer una futura cooperación interestatal. Un artículo de doctrina sobre este peculiar tipo de instrumentos indica que: “El carácter de convenio marco de una convención se fundamenta en la decisión de las partes de delegar aspectos relevantes para lograr los objetivos de dicha convención a acuerdos posteriores” (traducción libre del autor, p. 441).

La Convención parte de una definición mucho más integral de “curso de agua internacional“, comparada con la clásicamente usada de “río internacional”. Su artículo 2 estipula que: “A los efectos de la presente Convención: a) Por “curso de agua” se entenderá un sistema de aguas de superficie y subterráneas que, en virtud de su relación física, constituyen un conjunto unitario y normalmente fluyen a una desembocadura común; b) Por “curso de agua internacional” se entenderá un curso de agua algunas de cuyas partes se encuentran en Estados distintos“. De acuerdo a este esfuerzo conceptual, podemos citar, a modo de ejemplo, las iniciativas de España para delimitar “la parte española de las demarcaciones hidrográficas correspondientes a las cuencas hidrográficas compartidas con otros países” (artículo 3 del Real Decreto 125/2007). En contraste, podemos indicar que, en la primera controversia sobre los derechos de navegación en el Río San Juan entre Costa Rica y Nicaragua llevada ante la Corte Internacional de Justicia (CIJ), ninguna de las partes logro imponer su pretensión sobre la calificación jurídica del río. En su decisión del 13/07/2009, la CIJ afirmó que “…no cree tampoco, en consecuencia, deber decidir sobre el punto de saber si el San Juan entra en la categoría de los “ríos internacionales” – tal como lo sostiene Costa Rica –  o si constituye un río nacional que comporta un elemento internacional – según la tesis de Nicaragua” (párrafo 34, traducción libre).

La Convención de 1997 contiene varios principios (Artículos 5 a 10) que deben guiar el actuar de los Estados del curso de agua internacional. La lectura del artículo 7 relativa a la obligación de no causar un daño significativo a otros usuarios posiblemente recuerde un sin fin de controversias acaecidas en los últimos años en diversas partes del mundo. Muchas de ellas, como por ejemplo entre Costa Rica y Nicaragua, o entre Argentina y Uruguay, no encuentran una solución satisfactoria en parte debido al uso de nociones jurídicas limitadas que adolecen de un enfoque integral, el cual es indispensable en cualquier intento de regular un recurso como el agua.

Al revisar el estado de firmas y ratificaciones oficial de la Convención, resulta llamativo que la región que concentra mayores recursos hídricos, y que cuenta con una nutrida práctica convencional como América Latina esté ausente de dicha lista. Una firma de Venezuela (1997) y de Paraguay (1998) son los únicos “logros” después de 17 años de campañas a favor de su ratificación promovidas por organizaciones regionales y entidades no gubernamentales (ONG). Una evaluación crítica de estas últimas se impone, ya que raramente se ha observado un impacto tan limitado en América Latina de una campaña en favor de la ratificación de un instrumento a vocación universal.

En 1994, al aprobarse el anteproyecto de la Convención por parte de la Comisión de Derecho Internacional (CDI) los Estados Miembros de Naciones Unidas conformaron un grupo de trabajo para readecuar el texto y garantizarle una adopción final mediante la resolución A/RES/517229 de la Asamblea General. Fue adoptada en 1997 con 103 votos a favor, 3 en contra (Burundi, China y Turquía) y 27 abstenciones. Por parte de América Latina votaron a favor: Brasil, Chile, Costa Rica, Haití, Honduras, México, Uruguay y Venezuela. Se abstuvieron: Argentina, Bolivia, Colombia, Cuba, Ecuador, Honduras, Guatemala, Panamá, Paraguay y Perú. El detalle  del voto indica que Belice, El Salvador, Nicaragua y República Dominicana aparecen entre los “No shows” que sumaron en total 52 Estados (número extremadamente elevado para la práctica en materia de votaciones en la Asamblea General).

La Parte IV de la Convención (reglas en materia de protección del ambiente) puede ser comparada con las reglas enunciadas por la CIJ en el caso de las Plantas de Celulosa (Argentina c. Uruguay, sentencia de abril del 2010). Resuelto de manera sumamente cuestionable, este caso dio lugar a nuevas tensiones, que analizamos recientemente. De la misma manera, el contenido de la Parte IV deberá ser comparado con las reglas que enuncie la CIJ con ocasión de los dos casos que enfrentan a Costa Rica y Nicaragua: el del dragado del río San Juan, con la demanda interpuesta por Costa Rica en el 2010; y el relacionado con la denominada “trocha fronteriza”, objeto de la demanda interpuesta por Nicaragua en el 2011. Tuvimos de igual forma la posibilidad de analizar en su momento el proyecto minero ubicado en la localidad de Las Crucitas en Costa Rica y sus implicaciones ambientales en un curso de agua internacional desde la perspectiva de la protección de un curso de agua internacional.

El derecho internacional tiende a veces a modernizar de manera más ágil el marco jurídico en comparación con el derecho nacional. Tal es el caso de la Convención de 1997. Por ejemplo, dos Estados Parte a la Convención, España y Portugal, han logrado consolidar, luego de la adopción del Convenio de Albufeira de 1998, una cooperación técnica para el aprovechamiento, gestión y protección de las numerosas cuencas hidrográficas compartidas en una impresionante lista de acuerdos técnicos bilaterales.

Es de esperar que esta entrada en vigor reciente inspire a muchos Estados y los incite a ratificar este instrumento internacional, en particular en América Latina.

The Sustainable Development Goals Process: Making International Water Law More Sustainable and Ecosystem and Public Participation-Friendly

September 21st, 2014

The following post is by Dr. Otto Spijkers, Assistant Professor of Public International Law at Utrecht University. He can be reached at O.Spijkers [at] uu.nl. The essay is based on Dr. Spijkers’ forthcoming article in the Journal of Water Law.

 

One of the more formidable global challenges today is ensuring the sustainable management of freshwater resources. In many recent speeches and reports, including by Mikhail Gorbachev, one reads that urgent action is necessary to prevent a nightmarish world with polluted lakes and rivers, deadly droughts and floods, water scarcity, and the resulting water wars. This post analyzes how the UN’s Sustainable Development Goals (SDG) process might guide the evolution of the existing international water law framework toward a structure that is more friendly toward sustainable development, ecosystems, and public participation.

The Role of Water in the SDG Process

The SDG drafting process takes place through two work streams, which will come together in autumn 2015 when the UN General Assembly (UNGA) adopts the list of SDGs in the form of a resolution. The first is a work stream led by the UN Secretary-General and supported by many reports and consultations. The second is led by the UNGA Open Working Group on the Sustainable Development Goals (OWG). For an overview of the SDG drafting process, see here and here. After the UNGA adopts the SDGs, the SDG process will focus on implementation, dissemination, monitoring compliance, and creating awareness of the SDGs – a bit like the current status of Millennium Development Goals process.

From the beginning of the SDG drafting process, water has been identified as an important issue. The Future We Want, the outcome document of the 2012 Rio+20 Conference, which set the SDG drafting process in motion, placed water at the heart of sustainable development. Since then, participants in the work streams have struggled to find the proper place for “water” in the SDG process. For example, a proposal for a separate water goal was presented by the Secretary-General’s Advisory Board on Water and Sanitation. The Sustainable Development Solutions Network (consortium of scientists) proposed to include in the list of goals a commitment that “water resources are managed sustainably and transparently.” The UN Global Compact (consortium of responsible businesses) suggested calling upon all States to look critically at overconsumption of water resources, especially in the agricultural sector. And the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (group of experts) proposed including a separate SDG on water, but focusing on individual entitlements to water – making it more of a human rights issue than a sustainable transboundary water management issue. Finally, and most importantly, the Outcome Document of the OWG, around which all subsequent discussions on the SDGs will be organized, included an SDG on the sustainable management of water.

All of these efforts do not mean the mission has been accomplished. At the 24th World Water Week in Stockholm, the Executive Director of the Stockholm International Water Institute rightly noted that nothing is certain until the UNGA adopts its resolution at the end of 2015.

All in all, water was – and still is – on the minds of many people involved in the SDG drafting process, but there exist various and widely diverging views on how exactly the reference to water should be phrased: As a human rights issue? As an economic issue? As an environmental concern? Despite these different opinions, there are some views emerging from the SDG process on which there is general agreement.

Three Emerging Views from the SDG Process

The first view suggests that States should be encouraged to interpret and apply international water law as a legal framework for the sustainable development of water resources. Sustainable development requires a development policy that meets the socio-economic needs of the present generations without compromising the ability of future generations to meet their own needs. The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention) notes in its Preamble that “water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.” The UN Convention on the Law of the Non-Navigational Uses of International Watercourse (Watercourses Convention) refers to the principle of sustainable development in the Preamble and in Article 24. Moreover, Article 5 links the “sustainable utilization” of shared watercourses to water law’s bedrock principle of reasonable and equitable use. Hence, there are plenty of references to sustainability in water law’s most important legal documents. But this says little about the precise balance between the rights of present and future generations to benefit from water resources. Some States still believe that international water law is meant to regulate the economic use of shared watercourses, but not to protect the environment of these watercourses. The SDG process, with its focus on sustainability, provides an ideal opportunity to convince all States to approach the water law framework always wearing spectacles with green glass.

A second view would encourage States to stimulate the further development of the ecosystems approach to international water law. The year 2015 might very well be the year of the ecosystems approach. The ­Post 2015 Water Th­ematic Consultation already made many references to the protection of freshwater “ecosystems.” This emphasis on ecosystems is supported by various national consultations. An explicit reference to an obligation to “restore and maintain ecosystems to provide water-related services” in the targets of the SDG on water was proposed by UN-Water. In the OWG’s Outcome Document, the term ecosystem is applied in a broad sense, and with a lot of confidence. Since there is still much uncertainty about the meaning of the term “ecosystem” in international law, the SDG process could seize the moment, and encourage the further development of the ecosystems approach through international water law. We do have a legal basis: Article 20 of the Watercourses Convention and Article 3(1)(i) of the UNECE Convention both include an explicit reference to the ecosystems approach. And if a whole decolonization wave in the 1960s and 1970s could be based on one meagre reference to “self-determination” in the United Nations Charter (Article 1(2)), it is conceivable that two articles could serve as the basis for a legal regime on the protection of freshwater ecosystems. Article 20 of the Watercourses Convention, in particular, may then become a treaty-within-a-treaty, setting up by itself a legal regime on the protection of freshwater ecosystems.

The third view suggests using the legal framework of international water law to facilitate public participation at all levels of water governance. Both the Women’s Major Groups (see here and here) and Business and Industry called for a more “participatory” water governance system. UN-Water suggested that any system of water management should include “participatory decision-making.” In the Outcome Document of the OWG, the importance of public participation, especially by local communities, in water governance is acknowledged. All of this might encourage States to exploit with more confidence the potential of international water law in facilitating public participation in the sustainable management of waters. No general right of the public to participate can be found in the Watercourses Convention or the UNECE Convention. But the Conventions do not oppose it.

Dr. Salman M.A. Salman and Professor Gabriel Eckstein: Concluding Thoughts on the Implications of the Entry into Force of the United Nations Watercourses Convention

September 1st, 2014

The following post by Dr. Salman M.A. Salman and Professor Gabriel Eckstein offers concluding remarks about the series related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here)Dr. Salman is an academic researcher and consultant on water law and policy, and Editor-in-Chief of Brill Research Perspectives, International Water Law. Until 2009, Dr. Salman served as Lead Council and Water Law Adviser for the World Bank. He can be reached at SalmanMASalman [at] gmail.com. Professor Eckstein is a member of the law faculty at Texas A&M University, directs the International Water Law Project, and edits the International Water Law Project Blog. He can be reached at gabriel [at] internationalwaterlaw.org  or  gabrieleckstein [at] law.tamu.edu.

 

Introduction

The preceding essays discussing and analyzing various perspectives on and interpretations of the 1997 UN Watercourses Convention convey different, and sometimes conflicting, views and perceptions about the various principles set forth in the Convention. Indeed, many of these differences arose in the very early years of the work of the UN International Law Commission (UNILC) on the draft Convention, which began in 1971, and continued throughout to its conclusion in 1994. These differences also dominated the two meetings of the UN Sixth Committee convened as a Working Group of the Whole in 1996 and 1997, as well as the UN General Assembly (UNGA) meeting on May 21, 1997, which finalized and approved the Convention. Thus, the journey of the Convention over the past forty-four years has been quite turbulent and contentious.

Ongoing Debates

As evident in the perspectives from Southern Africa and the Nile Basin, one of the most contentious debates surrounds the relationship between the principle of equitable and reasonable utilization and the obligation against causing significant harm between upper and lower riparians. As evidenced in the essays, this issue remains a focal area of debate notwithstanding the efforts made to clarify the issue during the Sixth Committee and UNGA meetings, and through the interpretations and elaboration of the International Court of Justice (ICJ) in the Gabcikovo-Nagymaros and the Pulp Mills cases. A number of lower riparians countries still view the Convention as biased in favor of upper riparians because it subordinates the obligation against causing harm to the principle of equitable and reasonable utilization. Conversely, many upper riparians still believe that the Convention favors lower riparians because of its separate mention of the obligation against causing harm. It is noteworthy that the three countries that voted against the Convention (Burundi, China and Turkey), and many of those that abstained, such as Bolivia, Ethiopia, Mali and Tanzania, are largely upper riparian states. On the other hand, a number of lower riparians, such as Egypt and Pakistan, and those with mixed upper and lower riparian geographies including France and Peru, also abstained, concerned that the Convention favors upstream riparians because it subordinates the no harm rule to the principle of equitable and reasonable utilization. Of all these countries, only France is now a party to the Convention.

Although the SADC countries amended their Protocol on Shared Watercourses in 2000 to make it consistent with the Convention, they tried to maintain parity between the two principles by subjecting each to the other, thus keeping the actual relationship in abeyance and unresolved. The same concerns seem to be a main reason for the South Asia countries’ reluctance to join the Convention.

It is true that the Convention does indeed subordinate the obligation against causing harm to the principle of equitable and reasonable utilization. Yet, this should in no way be taken to indicate a bias in favor of upper riparians. The principle grants each riparian a fair share for utilization, based, at least theoretically, on some objective and widely accepted principles dating back to the Helsinki Rules of 1966. The ICJ, in addition to buttressing and elaborating the principle of equitable and reasonable utilization, confirmed in the Gabcikovo case, the perfect equality of all riparian states in the uses of the watercourse, and the exclusion of any preferential privilege of one riparian state in relation to the others. The ICJ noted that modern development of international law has strengthened this principle for non-navigational uses of international watercourses “as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly.” The ICJ reconfirmed this elaboration in 2010 in the Pulp Mills case.

The interaction of the Convention with existing agreements seem to be another matter raising the concerns of some states, as noted in the perspectives from South America, North America, Southern Africa, and to some extent Central Asia. Article 3 of the Convention asserts that it does not affect the rights or obligations of watercourse states arising from agreements already in force. Nonetheless, it asks the parties to consider, where necessary, harmonizing such agreements with the basic principles of the Convention. Some riparian states with existing bilateral or regional agreements appear to believe that the harmonization formulation causes those prior agreements to be weakened, if not disregarded. Conversely, riparian states left out of existing local and regional agreements criticize the Convention for not subjecting existing agreements to the Convention’s provisions and failing to mandate inclusion of all riparians in such agreements. Both perspectives misconstrue the Convention. A close reading reveals that the Convention recognizes both the validity of existing agreements as well as the rights of riparian states in a shared watercourse that are not parties to such local and regional agreements. This is the interpretation described in the essay discussing the European perspective, which also acknowledges the complementary nature of a general framework instrument, like the Convention, and more specific bilateral and regional agreements.

A third contentious issue, raised most prominently in the essays presenting the Chinese and South Asian perspectives and suggested in the South American perspective, relates to the Convention’s dispute settlement provisions. While some states, like Pakistan, believe that the provisions are too weak because they do not mandate a binding mechanism, other states, such as China, interpret the fact-finding procedures as compulsory and argue that such an approach interferes with their sovereign right to select their own approach to dispute settlement. Indeed, Article 33 of the Convention offers parties a number of methods for settling disputes. However, the only obligatory process set forth is impartial fact-finding and a requirement to consider the fact-finding report in good faith. Thus, while the Convention provides a basic mechanism for ascertaining the facts of a dispute, it leaves the precise method for resolving disputes to the parties. Given that the Convention is a framework treaty, this is clearly a reasonable approach incorporating both points of views.

A fourth concern regards the Convention’s relevance to groundwater resources. As explained in the essays providing the South Asian and North American perspectives, some countries like Mexico and Pakistan question whether the Convention’s regime should extend to subsurface waters. The unease appears based, in part, on inadequate national information related to border-region aquifers and the extent to which the Convention could fully address groundwater challenges, which often are distinct from those affecting surface waters. The Convention, however, provides mechanisms for developing knowledge about hydraulically related water resources, including obligations to cooperate (Art. 8) and share information (Art. 9), and even to generate new knowledge (Art. 9). Furthermore, it would be illogical to impose the Convention’s regime to water resources whose relations to a transboundary watercourse are still unclear. Nevertheless, as considered in the perspective on the Convention’s implications for groundwater resources, with the advent of the Draft Articles on Transboundary Aquifers, which contain a number of noteworthy groundwater-specific provisions, countries may be justified in raising questions regarding how the Convention addresses subsurface water resources. However, the issue should be couched more in terms of a concern rather than a contentious matter preventing ratification of the Convention.

A New Chapter of International Cooperation

Notwithstanding the regional and subject-specific challenges and concerns, there is a clear consensus that transboundary waters should be managed on the basis of cooperation and the equality of all riparians in the use of shared watercourses. Beyond these basic international law tenets, there are a number of advantages that could accrue to nations that ratify the Convention. Foremost is the comfort and security of knowing that riparian neighbors operate from the same foundational norms.

For example, under the Convention, all riparians – regardless of whether upstream or downstream – must abide by the instrument’s detailed notification procedures before embarking on measures that may affect an international watercourse. The Convention does not bestow a veto right in any riparian, but rather requires interaction and communication in conformity with fundamental norms of international law. As a result, riaprians are prevented from taking unilateral action and encouraged to cooperate through various means, including notification.

The notification procedures can also benefit states to the extent that they offer greater certainty, security and comfort to the various international, regional, and national financial institutions about financing projects affecting international watercourses. Agencies such as regional development banks and state development agencies, which typically lack such procedures, now have a global instrument on which to rely on for project notification and processing.

Ultimately, as suggested in Dr. McCaffrey’s essay, the Convention’s most significant value lies in its status as an authoritative statement of customary international water law and a framework under which more specific bilateral and regional agreements can be established and interpreted. In fact, the UNGA itself used the term “codification” when it referred the task of preparing the draft convention to its legal arm, the UNILC.

Hence, entry into force of the Convention represents a broadening commitment by the international community to manage and utilize transboundary freshwater resources through peaceful and cooperative means. Entry into force is also likely to have a “snow-ball” effect of creating an incentive for other states to join, as happened with other treaties, because few states would want to be left out.

Frontier freshwater resources have long been one of the few transboundary natural resources devoid of a global framework treaty. With the UN Watercourses Convention, freshwater resources no longer carry that distinction. Indeed, a new chapter of international cooperation over these resources has emerged.

Richard Paisley and Taylor Henshaw: The 1997 UN Watercourses Convention from a North American Perspective

August 24th, 2014

The following post by Richard Paisley and Taylor Henshaw is the tenth and final essay in the series related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Messrs. Paisley and Henshaw are with the Global Transboundary International Waters Governance Initiative at the University of British Columbia in Vancouver, Canada, which Mr. Paisley directs. Mr. Paisley can be reached at: rpaisley [at] internationalwatersgovernance.com.

Introduction

The nations of North America—Canada, Mexico and the United States (USA)—share a significant number of international drainage basins and transboundary aquifers, comprising 16% of the world’s transboundary river basins. The three countries have entered into various bilateral agreements with their neighbors for the management and allocation of their transboundary waters. However, while each voted in favor of the UN Watercourses Convention (UNWC) when it came before the UN General Assembly, none of them has ratified the instrument. The objective of this essay is to critically consider the absence of these three nations from the roll of the UNWC and to assess whether ratifying and implementing the UNWC would be in the individual and collective best interest of all three countries.

International Freshwater Drainage Basins of North America. Source: UN Watercourses Convention Online Users Guide

Perceptions

The three nations appear to be in no great rush to ratify and implement the UNWC. This may be due to a perception that their international drainage basins are sufficiently managed without the UNWC: long-standing bilateral institutions have been established to deal with various aspects of the conservation and management of international drainage basins in North America.

Prominent among these mechanisms are the International Joint Commission (IJC) between Canada and the USA, and the International Boundary and Water Commission (IBWC) between Mexico and the USA. The history and practice of the IJC and the IBWC provide a rich body of work to review that falls beyond the scope of this essay. Nevertheless, it is pertinent to mention some of the challenges the two commissions face, such as: managing significant risks to water quality and quantity; the linking of border environments to binational trade and associated agreements; new stresses on public health and national economies; changes due to population growth and industrialization; greater demands on shared resources; increasing emphasis on public and indigenous peoples participation in decision-making; greater value placed on non-traditional water uses, such as “in stream” flows; and the imperative to establish ecosystem and active adaptive management approaches to resource management.

In addition, both institutions have experienced recent changes to their constituencies with the increasing influence of environmentalists and economic, social justice, and sustainable development advocates. As a result, ratification and implementation of the UNWC could help make both the IJC and the IBWC more relevant by increasing the focus on, and energy devoted to, the more sustainable conservation and management of transboundary waters and related resources in all three countries.

Substantive Objections

Whether and the extent to which Canada, Mexico and the USA have substantive objections to the UNWC is not well known. This may be because such objections are masked by the fact that all three countries were among, not just the 103 countries who voted in favor of the UNWC, but also the 38 countries to officially sponsor the UNWC.

On reflection, various substantive reasons may exist to explain why all three countries are not overly anxious to ratify and implement the UNWC. Mexico provides a good example. On the one hand, Mexico probably favors the UNWC, in part, because the Convention provides a basis for cooperating over measures to prevent, reduce and control pollution, including from the USA, which is an issue of great sensitivity to Mexicans. On the other hand, groundwater is tremendously important for Mexico where many believe that the conservation and management of shared transboundary aquifers necessitates a different international legal regime to that presented in the UNWC. More specifically, Mexico could be disinclined to ratify and implement the UNWC until more clarity is provided regarding the relationship between the UNWC and the emerging Draft Articles on the Law of Transboundary Aquifers. According to Stephen McCaffrey, such clarity, regrettably, may be a long way off and:

will crucially depend on eliminating both the overlap between the draft and the UN Convention in terms of the physical subject matter they regulate, and the notion of “sovereignty” over shared groundwater, which should have no place in any set of rules governing the use, protection, and management of shared freshwater resources.

Constitutional Politics

At the political level, the ratification and implementation of international treaties has become an increasingly challenging undertaking in all three countries.

In Canada, the negotiation, signing and ratification of international treaties is controlled by the executive branch of the federal government. However, many international treaties, such as the UNWC, deal with matters that fall under the provincial sphere of legislative jurisdiction pursuant to the division of powers in Canada between the federal government, the provincial governments and First Nations (sections 91, 92, 92A and 35 of the Canadian Constitution).  Also, according to Professor Emeritus of Economics and Forestry at the University of British Columbia, Peter Pearse:

A recurrent question in discussions about water management in Canada is “What is the role of the federal government?”  A stranger to these discussions might think, naively, that this is simply a constitutional question.  But even a good constitutional lawyer can not give a crisp answer.  To some extent the question is a political one – “What does the federal government think its role is, at the moment?”  This changes.

As a practical matter this means that ratification and implementation of the UNWC in Canada would likely trigger challenging and hard-nosed fiscal and other negotiations among the federal, provincial and First Nations levels of government. An analogous situation occurred when Canada was asked to ratify and implement the Espoo Convention on Environmental Impact Assessment in a Transboundary Context.

In the USA, the legal situation regarding international treaties is somewhat different, but possibly even more challenging. Under United States constitutional law, an international “treaty” is an agreement that has received the “advice and consent” of two-thirds of the United States Senate and has been ratified by the President (see here). As a practical matter, given the increasing political polarization within the United States Senate, obtaining the consent of two thirds of Senate members for any multilateral treaty, including the UNWC, would be exceedingly challenging.

Mexico is much closer to Canada constitutionally than to the USA as Mexico constitutionally allocates separate and exclusive spheres of authority to the states/provinces and the federal government. International treaties must conform to the Mexican Constitution in order to be valid. However, many international treaties address topics that in Mexico fall within the exclusive authority of the states/provinces. Seemingly, in practical terms this means that Mexico may need to enact domestic legislation to transform international treaty obligations into enforceable domestic law, which could be both time consuming and expensive.

Champions

Another reason why the UNWC has not yet been ratified and implemented in Canada, Mexico and the USA is the paucity of champions at the political level in all three countries. This resonates with Nicolo Machiavelli’s observation:

there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.

Justifying the UNWC in North America

Despite the apparent obstacles noted above, there are at least three compelling reasons why Canada, Mexico and the USA should immediately ratify and implement the UNWC. First, ratification and implementation will send a strong and important message to each other, and to the world community, generally, that sovereign states have important rights and responsibilities when it comes to transboundary freshwater resources.

Second, the fact that Canada and the USA are variously both upstream and downstream of each other and that the USA is upstream of Mexico, will particularly and importantly help dispel any lingering misperception that the UNWC may be biased in favour of downstream or upstream states.

Third, Canadian, Mexican and American support for the Convention could not be more timely given how the world community is currently struggling with the harsh realities of climate change and water scarcity.

Ratifying and implementing the UNWC in North America would also demonstrate a wider acceptance of practice under the Convention as representing customary international law. In turn this could place the UNWC higher on various political agendas and could help lead to a more stable framework for transboundary water cooperation globally.

 

Dr. Maria Querol: The UN Watercourses Convention and South America

August 21st, 2014

The following post by Dr. Maria Querol is the ninth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Querol is an international law consultant with a vast background in international water law. She can be reached at maria.querol [at] gmail.com.

 

Introduction

Although the 1997 UN Watercourses Convention (UNWC) has finally entered into force, not one South American country is among its State Parties. Whilst Brazil, Chile, Uruguay and Venezuela voted in favour of its adoption at the UN General Assembly (UNGA), Argentina, Bolivia, Colombia, Ecuador, Paraguay and Peru all abstained. Paraguay and Venezuela were the only states from the region to sign the Convention, in 1997 and 1998 respectively. Nevertheless, neither has made any attempt to ratify it.

Many arguments have been presented to justify this flagrant absence, mainly focusing on the concern of South American states regarding challenges to their sovereignty over water resources flowing through their territories. However, this is not the only factor to be considered when analysing the region’s position on this topic.

Multilateral transboundary water treaties of South America

South American states have a history of concluding international treaties to regulate the management of their shared watercourses. This long-standing tradition favors the implementation of specific mechanisms and international water law norms over more general regimes. While most of these agreements are bilateral, there are four exceptions: the 1969 Treaty of the River Plate Basin, the 2010 Guarani Aquifer Agreement, the 1978 Amazon Cooperation Treaty, and the 1995 Agreement constituting the Tri-National Commission of the Pilcomayo River Basin.

International Basins of South AmericaThe Plate Basin Treaty entered into force for Argentina, Bolivia, Brazil, Uruguay and Paraguay on 14 August 1970.  It operates as an umbrella for other more specific agreements, both bilateral and multilateral, that have been concluded with regard to particular transboundary watercourses within the basin. Article VI of this agreement foresees the possibility that its Contracting Parties may conclude specific, partial, bilateral, or multilateral agreements designed to develop the basin. Accordingly, the Guarani Aquifer Agreement was concluded within the framework of the Plate Basin Treaty. Thus, the basin is regulated with an intergrated approach, both from a general and a more specific standpoint.

Transboundary watercourses are regarded in the region as shared natural resources. This view was particulary emphasized by both Argentina and Uruguay in the 1975 River Uruguay Statute and reaffirmed in 2010 in the Pulp Mills case before the International Court of Justice (ICJ). In this regard, Argentina argued in its memorial to the Court that “[t]he shared nature of the River Uruguay is also apparent from the fact that obligations are imposed on Argentina and Uruguay at an international level. The 1975 River Uruguay Statute is actually a repository for th[ose] international obligations”. Those obligations comprise the rules of no significant harm, equitable and reasonable use, and prior notification. It is important to bear in mind that these general norms are only applicable to the use and protection of shared natural resources as long as the states sharing the resource have not implemented a more specific conventional regime. Accordingly, Argentina also declared that while the River Uruguay Statute had been concluded 22 years before the UNWC was adopted by the UNGA, “the Statute provides for the establishment of a system of co-operation which is far more rigorous than that laid down by the Convention.”

The Amazon Cooperation Treaty was adopted by Bolivia, Brasil, Colombia, Ecuador, Perú, Suriname and Venenzuela to promote equitable and mutually beneficial results in the Amazon territories under their respective jurisdictions. It entered into force on 12 August 1980. The no harm rule and the reasonable and equitable principle are enshrined in Article I of the agreement. The no harm rule is also implicit in Article XVI as it stipulates that the decisions and commitments adopted by the State Parties to the treaty shall not be to the detriment of projects and undertakings executed within their natural territories, in accordance with international law. In addition, Article V prescribes the rational utilization of the water resources of the Amazon System. Periodic exchange of information among all the State Parties is also provided for in Articles I, VII and XI.

By virtue of an amendment to Article XXII of the Amazon Cooperation Treaty, the Organization of the Treaty of Amazon Cooperation was created with the view of further strengthening and ensuring the more effective implementation of the goals of the Treaty. The existence of an international legal entity directly regulated by public international law no doubt facilitates the realization of projects and can provide guidance for the rational utilization and sustainable management of shared water resources in the Amazon region.

Although the Amazon Cooperation Treaty does not prescribe a dispute resolution mechanism, State Parties can agree to submit their disputes to an arbitral tribunal or a permanent judicial organ such as the ICJ. They can also resort to a political dispute resolution method such as mediation or good offices. In any case, states are always bound by the customary obligation to negotiate a solution to their disputes in good faith.

Transboundary water management in South America

Unlike the practice in other regions of the world, discussions over shared water resources in South America, more often than not, take place under a cordial atmosphere. Although information exchange among states does take place in the region, the necessary data may be scattered around in different institutions, in which case its collection can prove quite burdensome. With reference to dispute resolution, South American states have been resolving their issues through direct negotiations and in some cases, as between Argentina and Uruguay, through the ICJ. Whilst progress has been made in terms of cooperation and knowledge over the management of shared surface water resources, this is not the case with regards to all shared groundwater. A first step forward has indeed been taken with regards to the Guarani Aquifer. But, further in-depth knowledge is necessary to provide a more complete scenario of all the possible consequences of human action related to transboundary groundwater resources.

Currently, South American states do not appear to have an immediate interest in a universal framework treaty to regulate the management of their transboundary water resources. Rather, they would prefer to continue resorting to their existing bilateral and multilateral agreements and to applicable customary norms in the absence of such treaties. They even count on international organizations to help implement their preferred management regime in the case of the Amazon Basin, and through a framework agreement for the Plate Basin.

This does not mean that the UNWC will have no value to South America. To the extent that the Convention codifies general international rules, its norms are binding on all states of the international community, including those of South America. In addition, the entry into force of the UNWC might foster the development of new customary norms in areas not yet covered by the existing regional treaties and could prove very influential in the interpretation of those particular treaties.

 

Robyn Stein and Georgina Mackenzie: Implication of the Entry Into Force of the UN Watercourses Convention for Southern African States

August 12th, 2014

The following post by Robyn Stein and Georgina Mackenzie is the eighth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Ms. Stein is Director and attorney with Edward Nathan Sonnenberg, Inc. in South Africa where she specializes in water law and policy. She can be reached at rstein [at] icon.co.za. Ms. Mackenzie is a candidate attorney working with Ms. Stein.

Introduction

The Revised Protocol on Shared Watercourses (Protocol) of the Southern African Development Community (SADC) came into force in 2003. The original Protocol, concluded between SADC member states in 1995, was revised to ensure that it reflected those of the then pending 1997 UN Watercourses Convention (UNWC). With a few notable exceptions, numerous provisions of the Revised Protocol have identical counterparts in the UNWC. As South Africa and Namibia are the only SADC states to have ratified the UNWC, it must be asked whether the entry into force of the UNWC will have any impact on the implementation or content of the SADC Protocol, and whether other SADC states might now be motivated to accede to the Convention.

Notable differences between the UNWC and the Protocol

Despite numerous Protocol provisions mirroring the UNWC, there are two fundamental differences between the instruments:

Dispute resolution mechanisms

Under Article 7 of the Protocol, member states must “strive to resolve” disputes relating to the implementation, interpretation or application of the Protocol amicably.  Otherwise, disputes must be referred to the SADC Tribunal. In contrast, the corresponding article in the UNWC, Article 33, offers numerous dispute settlement options beginning with negotiations, followed by mediation or conciliation through a third party, the use of joint watercourse institutions, submission to arbitration, and adjudication by the International Court of Justice.

Furthermore, under Article 33(3) of the UNWC, if the parties have not settled their dispute within 6 months, any party can unilaterally initiate impartial and compulsory fact-finding procedures. A “Fact-finding Commission,” comprised of members nominated by both parties, is thereafter required to produce a report setting out findings and recommendation for an equitable solution. While the parties must consider such findings and recommendations in good faith, scholars suggest that they are not bound by the pronouncement. In this sense, the Commission may be characterized as “compulsory conciliation.” This fact-finding procedure is one of the significant provisions of the UNWC, and yet the most notable absence from the Protocol.

Countries in the Southern African Development Community

“Equitable utilisation” principle vs the “no harm” obligation

Both the UNWC and the Protocol oblige watercourse states to utilise shared watercourses in an “equitable and reasonable manner” vis-à-vis other riparians. Whether or not such use is reasonable and equitable depends on a non-exhaustive number of social, economic and environmental factors listed in both instruments. Each instrument (Protocol Article 3(10)(a); UNWC Article 7(1)) obliges parties to take “all appropriate measures to prevent significant harm to other watercourse states.” The legal relationship between these two principles is of extreme importance and the precedence of one specific principle over the other has been deemed to have wide-ranging implications.

It is now widely recognised that the UNWC gives precedence to the equitable utilisation principle over the no significant harm obligation and is considered the “cornerstone” of the UNWC. This position is evident in the International Court of Justice’s endorsement of this preference in the 1997 case of Gabcikovo-Nagymaros. In contrast, Protocol Article 3(10)(b) states that where significant harm is nonetheless caused to another watercourse state, the responsible state must take appropriate measures to eliminate or mitigate such harm having due regard for the provisions of Article 3(10)(a), which embodies the Protocol’s no-harm obligation. Therefore some have interpreted the Protocol to give preference to the no-harm obligation over the equitable utilisation principle.

While it may be argued that some Protocol provisions have been poorly drafted, two arguments support the precedence of the no-harm obligation in the Protocol.

Despite the express reference to the UNWC, the Protocol was never intended to mirror the UNWC. This is evident in historical drafts and instruments as well as other notable differences between the two instruments. Moreover, while the Protocol provides a substantial definition for “significant harm,” the UNWC contains no comparable characterization. Arguably, inclusion of this definition in the Protocol indicates that the drafters intended to harness the objective nature of this definition and its factual importance to the complex set of SADC transboundary water resource issues. As such, they sought to ensure that the no-harm obligation prevails over equitable and reasonable use.

Stephen McCaffrey, a leading scholar of international water law contends that the preference in the Protocol for the no-harm obligation prevents SADC states from developing or using shared watercourses in a manner that causes significant harm to other watercourse states – even if such use or development were equitable and reasonable – unless the latter states consent to such use and development. While this precedence in the Protocol favours downstream watercourse states, the UNWC’s structure has the converse effect.

Accession to the UNWC by other SADC member states

As the Protocol is largely based on the framework of the UNWC, more SADC states might have been expected to have ratified the Convention by now. However, only Namibia and South Africa joined the UNWC. Two reasons might explain the hesitancy of remaining SADC states toward the Convention.

Questioning the relevance of the UNWC

Article 3(1) ensures that pre-existing watercourse agreements and states’ rights and duties arising from such agreements (including the Protocol) remain unaffected by accession to the UNWC. All that the Convention requires is that states “consider harmonizing such agreements with the basic principles” of the UNWC. Furthermore, Article 33(1) gives precedence to regional machinery where it exists (such as the Protocol) for dispute resolution. Therefore SADC states may feel that there is no urgency to accede to the UNWC.

Redundancy of instruments

The UNWC was intentionally designed as a framework convention with basic principles and rules that can be used flexibly and inform inter-state watercourse agreements. It was always intended to be supplemented by more detailed agreements. The Protocol, with its connection to the UNWC, adopted a similar framework approach. Therefore, some SADC states might view the UNWC as a duplication of the Protocol and regard membership in the Convention a redundant undertaking (see here).

Effect of entry into force of the UNWC on implementation of the Protocol

The origins of the UNWC reinforce one of the UNWC’s primary purposes – to codify and progressively develop the content of customary international water law. McCaffrey asserts that the UNWC strengthens and clarifies customary international law principles governing international watercourses through its status as the most authoritative statement of the norms of international water law, including the principle of equitable and reasonable utilization. SADC states opposed to the precedence of the no-harm obligation in the Protocol might use the UNWC to evidence customary international law’s preference for equitable and reasonable use. This could create discord among SADC members and cause undermine the founding principles of both the UNWC and the Protocol.

In contrast, SADC states that support the preference for the no-harm obligation in the Protocol might contend that the UNWC merely codifies the normative principles of customary international law without defining the core and content of the prioritisation of equitable and reasonable use over the no-harm obligation. At issue is the extent to which the UNWC provides practicable guidance on how the precedence will inform the drafting of effective shared watercourse agreements between states. Similarly, SADC members may assert that notwithstanding the precedence of equitable and reasonable use in the UNWC, alignment between the Protocol and the UNWC is unachievable until the UNWC offers more guidance on how its normative principles can be given practical effect (see here). This is particularly evident where competing interests arise in circumstances of hydro-political conflict and dire water scarcity, both of which are ongoing challenges within the SADC region.

This argument is reinforced by the nature of the UNWC as a framework instrument designed to inform the structure of local and regional watercourse agreements. By allowing pre-existing agreements to remain intact (Article 3(1)) and permitting adjustments to Convention provisions where required by local circumstances (Article 3(5)), the UNWC can be tailored to specific watercourses. This feature, however, may make some SADC states uncomfortable with the extent to which member states can depart from the UNWC’s norms, and the degree to which such departures and varied interpretations can be effectively managed.

Conclusion

Until more SADC states accede to the UNWC (which appears unlikely in the near future), the coming into force of the Convention will have limited effect on the Protocol. The UNWC will provide interpretive guidance to those Protocol provisions that incorporate the normative principles of customary international law embodied in the UNWC. Absent constructive and inclusive engagements between SADC states and a central agency responsible for managing and implementing the UNWC, it is unlikely that it that UNWC will have a tangible influence on the Protocol for some time to come.

 

Professor Gabriel Eckstein: Implications of the UN Watercourses Convention for Groundwater Resources

August 5th, 2014

The following post by Professor Gabriel Eckstein is the seventh in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Professor Eckstein is a member of the law faculty at Texas A&M University, directs the International Water Law Project, and edits the International Water Law Project Blog. He can be reached at gabriel [at] internationalwaterlaw.org   or   gabrieleckstein [at] law.tamu.edu.

With Vietnam’s accession to the 1997 UN Watercourses Convention (UNWC), the global community has taken an important step toward cooperative riparian management of transboundary waters. Although most scholars and UNWC parties have focused on the surface water implications of the Convention, there is another critical component of the instrument that should not be neglected. The UWNC applies to many aquifers worldwide. The purpose of this essay is to consider the scope of the Convention in relation to groundwater resources and place it in the context of emerging international law for transboundary aquifers.

Groundwater: a hidden treasure

Groundwater is the world’s most extracted natural resource. It provides approximately 45% of humanity’s freshwater needs for everyday uses, such as drinking, cooking, and hygiene, and 24% of water used in irrigated agriculture (see here).

Transboundary Aquifers of the World - 2012 Source: International Groundwater Resources Assessment Centre (http://www.un-igrac.org/dynamics/modules/SFIL0100/view.php?fil_Id=213)

Transboundary Aquifers of the World – 2012
Source: International Groundwater Resources Assessment Centre
http://www.un-igrac.org/dynamics/modules/SFIL0100/view.php?fil_Id=213

 

 

Not surprising, groundwater is highly transboundary. While 276 international watercourses traverse the world’s land areas, an ongoing study identified 448 aquifers and aquifer bodies traversing international political boundaries. In places like the Middle East, North Africa, and the Mexico-United States border, transboundary aquifers serve as the primary or sole source of available freshwater for human and environmental sustenance.

Despite their importance, transboundary aquifers have been comparatively ignored in cross-border water management and treaty development. While thousands of agreements have been forged for transboundary rivers and lakes, only a handful directly apply to aquifers that traverse international frontiers. As one of the few international instruments to address this topic, the UNWC provides critical recognition of the important role groundwater resources play in human progress and development, as well as the need to establish principles of law governing this “hidden” but valuable natural resource.

Applicability of the UNWC to groundwater resources

Although the UNWC clearly applies to many of the world’s groundwater resources, it is important to delineate precisely which aquifers are included and excluded from the rubric of the Convention. The UNWC defines “watercourse” to mean “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus,” and an “international watercourse” as “a watercourse, parts of which are situated in different States.” Parsing out this phraseology reveals a number of important qualifications.

For an aquifer to fall within the scope of the UNWC, it must be a part of a “system of surface waters and groundwaters.” Use of the “system” criterion in the definition implies an interrelationship between multiple and interlinked water bodies. This assessment is supported and complemented by the subsequent definitional language that emphasizes the “physical relationship” and “unitary whole” of the system, and the “common” characterization of a terminus. Hence, solitary transboundary aquifers – such as independent fossil aquifers and rain-fed aquifers – are presumptively excluded from the scope of the UNWC.

It is noteworthy that subsequent to drafting the principles for the UNWC, the UN International Law Commission (ILC) submitted a Resolution on Confined Transboundary Groundwater in which it commended states to be guided by the principles of its work product in regulating independent and hydraulically unrelated transboundary groundwater resources. This progressive recommendation was not incorporated into the UNGA’s final version of the UNWC.

Model of a Transboundary Aquifer Model, from Puri, et.al., "Internationally shared aquifer resources management, their significance and sustainable management: A framework document," IHP-VI International Hydrological Programme Non-Serial Publications in Hydrology SC-2001/WS/40 (UNESCO 2001)

Model of a Transboundary Aquifer
Source: Puri, et.al., “Internationally Shared (Transboundary) Aquifer Resources Management: Their Significance and Sustainable Management – A framework document,” IHP-VI International Hydrological Programme Non-Serial Publications in Hydrology SC-2001/WS/40 (UNESCO 2001)

 

 

In addition, a textual reading of the two definitions suggests that the Convention applies where the transboundary character exists in any part of the system. Hence, a domestic aquifer is subject to the UNWC if it is hydraulically connected to a transboundary river. Similarly, an internal river would be bound by the terms of the Convention if it is linked to a transboundary aquifer. This latter scenario, however, may be subject to debate. In its Thirty-Second Session Report during its preparatory work to the UNWC, the ILC asserted that “the main stem of a river traversing or forming an international boundary” is the “core” of a watercourse. Additionally, Ambassador Chusei Yamada, who served on the ILC during the drafting of the UNWC and later as Special Rapporteur for the ILC’s Draft Articles on the Law of Transboundary Aquifers (Draft Articles), explained to this author in a private conversation that in its deliberations the ILC, and later the UNGA, never contemplated applying the Convention where the transboundary character of the system could not be found in a surface water body. Given that the qualification has yet to be considered in state practice, it remains unclear how broadly it may be interpreted.

Another criterion affecting the UNWC’s applicability to certain groundwater resources is the phrase “flowing into a common terminus.” The criterion intimates that the interlinked water resources must flow toward the same end point to be subject to the Convention’s regime. The directional flow of rivers and lakes, however, is generally described in two dimensions (from point X to point Y). In contrast, groundwater flow is defined in three dimensions because its movement is dependent on local geological conditions, which can vary throughout the aquifer. As a result, groundwater can flow toward a disparate terminal point from that of a related surface water body. Moreover, while aquifers do sometimes terminate at a single point, such as at a spring, it is more common for aquifers to discharge over an extended geographical area along the entire edge of the aquifer. Accordingly, the Convention does not apply to aquifers that do not share a common terminus with hydraulically connected rivers and lakes.

In summary, the UNWC does apply to groundwater resources. However, the Convention’s definitions narrow its relevance to domestic and transboundary aquifers that are hydraulically linked to a transboundary river or lake and that flow into a common terminus. They may also apply to transboundary aquifers that are hydraulically linked to an internal water body, so long as the interrelated surface and subsurface waters flow into a common terminus. All other aquifers are excluded from the Convention’s regime (for a more detailed analysis, see here).

UNWC, transboundary aquifers, and international law

While the UNWC is widely regarded as codifying customary international law, it draws almost exclusively from state practice related to the management and allocation of transboundary rivers and lakes. This perspective is understandable as the bilateral and multilateral cooperative experience over transboundary groundwater resources is scant in comparison. Nevertheless, many of the norms contained in the UNWC are equally (or, at least, similarly) applicable to transboundary aquifers.

A 2011 study suggests that the customary responsibilities most conspicuous in state practice include the substantive obligations of equitable and reasonable utilization and of no significant harm. The study also recognized the existence of accepted procedural duties, including: regular exchange of data and information, generation of supplemental data and information through continuous monitoring and related activities, and prior notification of planned activities. The latter obligation is considerably more general and less developed procedurally than what is contained in the UNWC. Principles contained in the UNWC, but which have yet to arise in state practice for transboundary aquifers, include norms related to ecosystem protection and pollution prevention, cooperative management mechanisms, and the settlement of disputes. In addition, the study identified groundwater-specific concepts that, while logical, have yet to emerge in state practice, including obligations related to protecting recharge and discharge zones.

In 2002, the UNGA tasked the UNILC with drafting principles of law for transboundary aquifers based on trends in state practice and customary norms. The resulting Draft Articles are now before the UNGA (see here). While the Draft Articles were modeled largely on the UNWC, there are a number of noteworthy differences. The UNWC applies to certain transboundary and some domestic aquifers as discussed above. In contrast, the Draft Articles apply to all transboundary aquifers, regardless of whether they are hydraulically linked to any other water body (surface or subsurface), and to domestic aquifers that are hydraulically related to a transboundary aquifer. In addition, the Draft Articles are tailored specifically for transboundary aquifers and include references and principles related to protecting recharge and discharge zones, ensuring the functioning of aquifers, and aquifer-related monitoring activities. If the Draft Articles proceed toward an independent legal instrument, which is yet uncertain (see here), the Draft Articles and UNWC will have to be harmonized.

Conclusion

The coming into force of the UNWC is a significant milestone in the evolution of international water law. While the Convention’s applicability to certain of the world’s groundwater resources may be limited, its growing acceptance and implementation signifies the global community’s broadening commitment to manage and utilize transboundary freshwater resources through peaceful and cooperative means. It also recognizes and affirms transboundary groundwater resources as a legitimate topic of international law.

Professor Patricia Wouters: Considering China’s approach to the UN Watercourses Convention – Time to revisit?

July 28th, 2014

The following post by Professor Patricia Wouters is the sixth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Professor Wouters directs the China International Water Law Programme at Xiamen Law School, China. She can be reached at pkwoutersxiamen [at] hotmail.com.

One of China’s riparian neighbours, Vietnam, was the 35th country to ratify the 1997 UN Watercourses Convention (UNWC), catalysing its entry into force on 17 August 2014. What does this mean for China and this region? While China voted against the UN Resolution adopting the UNWC in 1997, this does not tell the whole story. Instead, China’s transboundary water resources management must be considered within a broader context, and as part of a continuum of China’s evolving approach to international law.

Setting the context

With 5,000 years of history, China has considerable experience in water resources development. Yet, China’s diminishing quantities and qualities of freshwater pose serious challenges to the nation’s burgeoning economic growth (see here). In recent years, this has led the government to include “water” in its “Number One priority” annual policy documents, instruments that drive Chinese national policy actions. Premier Li Keqiang’s “war on pollution” has also resulted in a range of measures targeting water pollution, especially in urban areas and development hubs (see here). These domestic initiatives will have a critical impact on China’s transboundary water practice.

China's Transboundary Waters (from: Wouters & Chen, China's 'soft-path' to transboundary water cooperation examined in the light of two UN Global Water Conventions: exploring the 'Chinese way', Journal of Water Law, Vol. 22(6), pp. 229-247 (2011))

China’s Transboundary Waters (from: Wouters & Chen, China’s ‘soft-path’ to transboundary water cooperation examined in the light of two UN Global Water Conventions: exploring the ‘Chinese way’, Journal of Water Law, Vol. 22(6), pp. 229-247 (2011))

Situated as the upper riparian in some 40 major transboundary watercourses with 14 riparian nations, China has adopted an approach to transboundary water resources management consistent with its “Five Principles of Peaceful Co-existence”: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence. Each of these Principles aligns directly with core values of the UN Charter. Recently, President Xi Jinping commemorated the 60th anniversary of the Five Principles and reaffirmed China’s commitment to furthering this approach with a view to building “a new type of international relations and a better world of win-win cooperation” (see here).

China already implements this foreign policy strategy, with proactive outreach across Asia, Europe, Africa, and Latin America, concluding an impressive array of mostly bilateral agreements. As just one example, during his Latin American visit (described as opening “a new chapter in China-Latin American win-win cooperation”), in his address (here and here) to Brazil’s National Congress, President Xi spoke of the need for “international fairness and justice”, and urged adherence to principles contained in the UN Charter. While he reiterated the integral importance of national sovereignty and territorial integrity, he added that there must be due regard for the reasonable concern of others. Referring to China as a “peace-loving nation”, President Xi asserted that China opposed all forms of hegemony, adding “China cannot develop without the world and the world cannot develop without China”.

China’s position regarding the UNWC

China’s refusal to support the UN Resolution adopting the UNWC was aligned to its approach to international law. It was in this context that the Chinese delegate explained China’s dissatisfaction with the text:

First, it failed to reflect general agreement among all countries, and a number of States had major reservations regarding its main provisions. Secondly, the text did not reflect the principle of the territorial sovereignty of a watercourse State. Such a State had indisputable sovereignty over a watercourse which flowed through its territory. There was also an imbalance between the rights and obligations of the upstream and downstream States. China could not support provisions on the mandatory settlement of disputes which went against the principles set out in the United Nations Charter. China favoured the settlement of all disputes through peaceful negotiations. Accordingly, China voted against the draft resolution to which the draft convention was attached (see UNGA Press Release GA/9248, 21 May 1997).

Notably, however, during the deliberations leading to the Convention, China expressed strong support for many of the norms eventually included in the UNWC, especially the principle of equitable and reasonable use (see here).  Moreover, a recent study examining China’s transboundary water treaty practice suggests that, in general, China’s actions respect the approach of the UNWC. The research, however, also revealed that, while China embraces the duty to cooperate (as a general guiding principle) and supports the rule of equitable and reasonable use in its water-related treaties, these norms are often expressed in broad terms. Also, the mechanisms for transboundary cooperation provided for in China’s treaties – rules of procedure, institutional mechanisms and dispute settlement – are rather imprecise and focus primarily on technical issues. In addition, while the treaty practice lacks any compulsory or third-party dispute settlement provisions, such an approach is consistent with China’s view that differences should be managed through consultation, dialogue and negotiations.

China’s transboundary water treaty practice is limited not only with respect to its normative content and operational procedures, but also with respect to its geographical reach. None of China’s southern transboundary waters are covered by treaty regimes, including the considerable resources originating in the Himalayan water towers. Most of China’s transboundary water cooperation is with its northern neighbours, especially Kazakhstan and Russia (see here).

Mekong River BasinContemporary transboundary water issues involving China – The case of the Mekong

A recent article in the Financial Times highlights China’s upstream dilemma – how can China be the “good neighbour” on the Mekong? China is only a dialogue partner under the Mekong Agreement, with observer status at Mekong River Commission (MRC) meetings. However, under an agreement with the MRC, China provides the Commission hydrological data on its portion of the river. Nevertheless, downstream riparians recently alleged that China’s dams were responsible for downstream flooding (December 2013) and scarcity (February 2014).

Without clear rules of procedure (such as those set forth under the UNWC and the Mekong Agreement), China’s duty to cooperate lacks normative traction.

China has a unique opportunity in the field of transboundary waters for consolidating its emerging role as a “good neighbour” that seeks “win-win” solutions. Improved procedural rules and dispute avoidance mechanisms, developed to meet the regional context, could facilitate improved transboundary cooperation. With its considerable technical expertise, China could devise its own “people-to-people” approach for enhanced transboundary cooperation.

China’s future approach to transboundary waters – the need for consolidation, including revisiting the UNWC as a framework instrument

Things are changing. China is now well placed to develop its approach to transboundary water cooperation in ways that match its global foreign policy strategy. The UNWC, as a multilateral framework instrument, offers a range of rules and processes that China could adapt to meet its diverse transboundary issues in ways that demonstrate China’s role as the “good neighbour”. By incorporating some of the provisions and processes included in the UNWC in its existing and future treaty and state practice, China could move forward in this field. China appears to be heading in this direction as demonstrated by its recent 2013 Declaration with Kazakhstan, which builds on past bilateral treaty practice and enlarges the Sino-Kazak joint commission’s remit to include work on water allocation.

Borrowing from the UNWC, China could also find legal approaches that contribute to its “war on pollution”, in the transboundary context, by introducing more detailed substantive and procedural rules aimed at water pollution. In this regard, China might also take inspiration from the 1992 UNECE Transboundary Rivers and Lakes Convention. China’s support for the UN (generally), coupled with its currently evolving approach to international law, provides compelling reasons for China to revisit the guidelines provided for in these two UN global water conventions.

China’s emerging role in international development can also serve to enhance its approach to transboundary water cooperation. For example, China’s new “peace-through-development” agenda with India (see here)  could help to build upon the series of recent transboundary water agreements between the two countries (see here).

China’s commitment to environmental protection (evidenced in China’s participation in a broad range of multilateral environmental agreements, such as the RAMSAR Wetlands Convention, Convention on Biological Diversity, Climate Change Convention, and Convention on Desertification, also provides opportunities for consolidating its approach to transboundary water cooperation.

Realising the “Chinese dream” is an ambitious goal. The peaceful management of China’s considerable transboundary water resources, in ways that are mutually beneficial to China and its riparian neighbours, must be part of this major undertaking.

 

Dr. Götz Reichert: Entry into Force of the UN Watercourses Convention – Should Europe Care?

July 21st, 2014

The following post by Dr. Götz Reichert is the fifth in the series of essays related to the entering into force of the by 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Reichert is head of the Environment Department at the Centre for European Policy in Freiburg, Germany. He can reached at goetz.reichert [at] t-online.de.

The upcoming entry into force of the 1997 UN Watercourses Convention (UNWC) can be attributed, in large part, to the sixteen European ratifications out of the thirty-five that have been recorded thus far. In fact, Europe forms the largest regional group of state parties to the UNWC. This somewhat disproportionate representation gives rise to the question: why did so many European countries join the UNWC? Moreover, given the complex, multi-level water management, allocation, and protection mechanisms already in place, what added value does an additional international framework convention have for Europe? To answer these questions, we must first consider the existing legal regime in Europe that is applied to freshwater resources.

Specific International Agreements

Europe’s hydrological environment is very diverse, ranging from water-rich areas, often under pressure from industrial pollution and frequent floods, to water-scarce regions with intensive agriculture. Moreover, Europe contains approximately 75 transboundary river basins and over one hundred international agreements pertaining to internationally shared rivers, lakes and aquifers. Following decades of mixed experiences with international cooperation, since the 1990s, a “collective learning curve” has resulted in the emergence of a promising legal regime. Examples include the cooperative efforts between the riparians of the rivers Rhine and Danube.

Map of EU River Basin Districts indicating transboundary co-operation (from: http://ec.europa.eu/environment/water/water-framework/facts_figures/pdf/Transboundary-cooperation-%202012.pdf)

Map of EU River Basin Districts indicating transboundary co-operation (from: http://ec.europa.eu/environment/water/water-framework/facts_figures/pdf/Transboundary-cooperation-%202012.pdf)

Once infamous as “Europe’s most romantic sewer”, the Rhine is now recovering from years of excessive industrial pollution. Ill-designed agreements from the 1970s, fierce disputes between upstream and downstream riparians, and the disastrous Sandoz chemical spill in 1986 finally prompted the International Commission for the Protection of Rhine to adopt a more holistic, ecosystem-oriented approach, codified in the 1999 Convention on the Protection of the Rhine. Furthermore, the fall of the Iron Curtain in 1989 opened new opportunities for international cooperation, most importantly for the Danube. The 1994 Convention on Cooperation for the Protection and Sustainable Use of the Danube River forms the legal basis for cooperation between the fourteen riparian countries and the European Union within the International Commission for the Protection of the Danube River. Today, the regimes pertaining to the Rhine and Danube are exemplary for their detailed substantive regulations, clear procedural obligations, and strong institutional framework, each consisting of a conference of the parties, expert groups working on technical questions, and permanent secretariats.

1992 UNECE Convention

Substantive, procedural and institutional elements are also established by the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention), which functions as an overarching, general agreement. Originally designed as a regional framework convention for European and Central Asian countries under the auspices of the United Nations Economic Commission for Europe (UNECE), the UNECE Convention was opened to all United Nations members in February 2013. Presently, the Water Convention has forty parties.

The UNECE Convention’s institutional provisions, which establish a regular meeting of the parties and a permanent secretariat and various expert working groups, enable the regime to play an active role in the development of international water law in Europe and beyond. Together with its 1999 Protocol on Water and Health, the 2003 Protocol on Civil Liability (not yet in force) and a number of soft law instruments like the 2014 Model Provisions on Transboundary Groundwaters, the UNECE Convention provides guidance for the continuous improvement of international cooperation on the protection and use of transboundary water resources. This is reflected in a number of subsequent international agreements, such as the 1994 Danube Convention, 2002 Meuse Agreement, the 1998 Portuguese-Spanish Basin Agreement (Spanish), and the 1999 Rhine Convention. All of these instruments make a serious effort to adapt the basic approach of the UNECE Convention to their specific needs. The agreements share the catalogue of aims and principles laid down by the UNECE Convention (e.g., sustainable water management, the precautionary principle, the polluter-pays principle). They also establish river commissions with significant tasks and competences. Most importantly, all agreements take the “river basin” as the managerial unit for the protection and management of freshwater resources, including both surface waters and groundwater.

EU Water Framework Directive

The European Union is also involved in international cooperation on transboundary freshwater resources in Europe, inter alia, as a party to the UNECE Convention and conventions on the Danube, the Elbe, the Oder and the Rhine. Since 2000, the EU Water Framework Directive 2000/60/EC (EUWFD) has played a pivotal role both in implementing the EU’s obligations under international conventions as well as in further developing international water law. Its objective is to achieve good qualitative and quantitative status of domestic and transboundary freshwater resources in the EU by 2015. To this end, the EUWFD sets up a complex and challenging regulatory program including phasing-out of hazardous substances and controls over the abstraction of fresh surface water and groundwater.

The EUWFD follows the drainage basin approach and regards the hydrological “river basin” as a starting point. The corresponding management unit is the “river basin district” (RBD), which refers to “the area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters.” If transboundary effects occur within a river basin, the EU member states concerned must establish an “international RBD” and coordinate the implementation of the EUWFD through a single River Basin Management Plan (RBMP). A river commission established under international law may be entrusted with implementation of the EUWFD. Where a RBD extends beyond the territory of the EU, the EU member states concerned must seek appropriate coordination with the non-EU riparians in order to achieve the EUWFD objectives. This is quite a challenge, given that 60% of the EU territory is covered by international river basins, and 55 of the current 110 RBDs are considered international. Nevertheless, international RBMPs have been adopted in several transboundary basins like the Danube, Rhine and Elbe within the framework of the respective international river commissions. Therefore, the EUWFD constitutes a legal interface between EU water law and international water law, thereby forming the centerpiece of an increasingly elaborate multi-level governance regime for the protection and management of transboundary freshwater resources in Europe.

Europe and the Watercourses Convention

In the light of this elaborate multi-level regime, why should Europe care about the entry into force of the UNWC? With the “globalization” of the UNECE Convention, the question becomes even more pressing. While both legal instruments are universal framework convention open to all states, they fulfill different but complementary functions: The UNWC primarily codifies the status of customary international water law. The long-standing controversy on the relationship between the principle of equitable utilization and the “no harm rule” clearly shows that the UNWC, at its core, is still focused on basic conflicts over transboundary freshwater resources and provides a legal framework for their balanced resolution. In contrast, the UNECE Convention, with its detailed provisions for substantive, procedural and institutional rules, goes well beyond the “least common denominator” of customary law and contributes to the further development of international water law. For countries willing to pursue integrated water management based on the drainage basin approach in close cooperation with their fellow riparians, the UNECE Convention serves as a supplement rather than an alternative to the UNWC.

Over time, European countries have learned – sometimes the hard way – that international cooperation on the protection and management of shared freshwater resources is beneficial for all riparians. This is why Europe now forms the largest block of state parties to the UNWC. Decades of intense work in international fora such as river commission and expert groups have gradually created mutual understanding and trust. The EUWFD has added challenging requirements to the substantive content of this work. On the one hand, European countries should share their experiences; on the other, they can benefit by the experiences of other regions. Therefore, Europe should continue to be involved in the global discussion and further development of international water law. Becoming a party to the UNWC would be a clear commitment in this respect. In a world where water-induced controversies are still the cause of many conflicts, a “constitution of the Earth’s freshwater resources” recognized by the community of states is needed. Therefore, European countries should care and join the UNWC.

 

Dr. Kishor Uprety: A South Asian Perspective on the UN Watercourses Convention

July 14th, 2014

The following post, by Dr. Kishor Uprety, is the fourth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Uprety is a lawyer with The World Bank. He can be reached at aastha7 [at] cox.net.

Hydro-Geopolitics

In South Asia, transboundary water sharing agreements and arrangements tethering neighboring countries are subject to much criticism, as covering too much or too little. Dozens of hydro dams, whether on the Indus, the Ganges, or the Brahmaputra Basin rivers, under preparation, planned or projected, have been considered threats by most riparians, upper and lower alike. Industrial expansion, population growth, global warming, climate change, and underground water pumping exceeding natural recharge rates enhances criticisms, especially when the water flow in international rivers declines below the usual and expected limit. With regard to dams, while upstream users cite vital developmental imperatives as grounds for such construction, downstream riparians often oppose them citing their own socio-economic needs and existing uses that are dependent on existing flows. The above typical crises caused by competing interests call for fine-tuning of transboundary regimes and importing of international norms in the continent.

Map of South Asia

South Asia is a region that has had to deal with some of the most difficult disputes over transboundary rivers. Due to intra-regional power imbalances, mutual hostility, suspicion, and the absence of an endorsed universal legal regime, sharing transboundary waters and simultaneously sustaining riparian ecosystem, has become increasingly complex. Yet none of the South Asian countries has joined the 1997 UN Watercourses Convention. India and Pakistan abstained from the vote on the Convention at the UN General Assembly, while Afghanistan, Bhutan and Sri Lanka were absent. Bangladesh, Maldives and Nepal voted in favor of the Convention, but none has ratified or acceded to the instrument. As important, India had officially noted its objections during its adoption (see below), and as such, it is not surprising that it has not become a party.

Dissatisfaction with the Convention

The dearth of literature does not permit the formulation of a formal conclusion as to why the South Asian countries are uncomfortable with the Convention. Nevertheless, informal surveys with stakeholders suggest that it is due, essentially, to a perceived inability of the Convention to tackle all of the possible region-specific scenarios and the differing needs and demands among the countries. A number of reasons influenced by historical, political and cultural elements come into play.

First, while some countries in South Asia may seem genuinely to favor a multi-country   approach, collective multilateral attention to the problems of transboundary waters has been rare. Historically, the region has lacked a collective strategy and bilateralism remains the focus.

Indeed, water has differing impacts on regional relations. Between India and Pakistan, as well as Pakistan and Afghanistan, water disputes exacerbate already strained bilateral relations. For Bangladesh and Nepal, the Indian approach to water is a primary source of distrust. Conspiracy theories and blame games prevail throughout South Asia. Afghanistan blames Pakistan (and Iran) for its water problems, while Nepal, Bangladesh and Pakistan blame India for theirs. Within India and Pakistan, water shortages are blamed for the actions taken by upstream provinces or federal states. This blame culture reflects the absence of trust that plagues intraregional relationships, and makes multi country river-sharing arrangements particularly difficult to materialize.

Second, these countries consider the principles of water use emanating from the Convention, though intuitively appealing, as difficult to operationalize and implement in a particularly heated geopolitical environment. Also, the many principles contained in the Convention and designed to ensure cooperation in the abstract, are considered vague if not contradictory in reality.  As such, they are deemed unsuitable for resolving South Asia-specific issues where the prevailing language is centered on the idea of water as a security priority.

Indeed, there are contrasting views within the region amongst stakeholders and opinion builders. There are those who rely on a realist analysis and see water scarcity and riparian rights to water allocations as part and parcel of state security. Countries where this analysis dominates appear reluctant to engage in multilateral agreements over water because these agreements inherently require the secession of some portion of their national sovereignty. There are also those historical materialists who endorse multilateral water sharing cooperation, but who also believe that such cooperation can only be based on an “unfair” allocation of water skewed towards more developed states, bigger states, or former colonial masters. Countries where this analysis dominates remain confused as to the content as well as the methodology for negotiating agreements.

Third, the treaty-making behavior in the South Asia region is unique. Due to their prevailing mutual distrust, their inability to delink hydropower from water resources, and their reservation against generalizing policy to avoid establishing precedent, the strategic approach of most of the countries is merely to theoretically engage in water-related initiatives, but practically advance only those serving their own specific interests. An interesting twist can further be noted in the case of India, which, being in a unique geographic position – upper riparian to Pakistan and Bangladesh, and lower riparian to Nepal and China – employs a differentiated strategy and, thus, considers a uniform formula for the management of water relations to be impractical.

Individual countries in the region also have their own stance on the provisions of the Convention. For instance, Pakistan considers that “groundwater” should not be part of the definition of a “watercourse” (art. 2) because it is difficult to determine the geographic range of aquifers that are hydraulically linked to rivers, and inequitable to include aquifers that are located entirely within the territory of one country. India takes the stance that art. 3 of the Convention, which ensures nations’ right to enter into watercourse agreements, contradicts its domestic law whereby water is constitutionally a state rather than a Union matter. It also claims that the term “sustainable,” as used in articles 3 and 5 in the context of “sustainable utilization,” is not properly defined. In addition, all of the countries in the region seem to employ different interpretations of the word “significant” in the context of “no significant harm” (art. 7); some of the countries oppose the provision on equality of access to transboundary remedies (art. 32), which they interpret as presupposing regional integration; and Pakistan is displeased that the dispute settlement provision (art. 33) is not binding, while India is dissatisfied that the provision contains elements for mandatory third party procedures.

The Way Forward

Water insecurity is pervasive in the South Asia region, visible in conflicts, disputes and tensions that have erupted within and across countries. Thus, a new approach, centered on the idea of water as a common good and a human right that is universally held and acknowledged, may need furthering. The Ganges basin countries are also adopting strategies for river basin management at the sub-national level. These developments, if complemented with effective persuasion of government and non-government stakeholders, may pave the way for these countries to consider a more uniform and facilitative framework on transboundary water resource management, including the UN Watercourse Convention. Furthermore, the conclusions emanating from the 2013 Permanent Court of Arbitration Award on the Kishenganga Dispute, and the 2007 Decision of the Neutral Expert on the Baglihar Case (both in the context of the Indus River), also could influence the understanding of these countries about the value and complementarity of treaty provisions in relation to customary international law, and encourage them to revisit their long-held positions!