Archive for the ‘Latin America’ Category

The Ocotepeque – Citalá Statement of Intent: a first step towards transboundary aquifer cooperation in Central America?

Friday, November 1st, 2019

The following essay is by Dr. Francesco Sindico, Co-Director of the Strathclyde Centre for Environmental Law and Governance (SCELG). Dr. Sindico collaborated in 2015 and 2016 with the GGRETA project Trifinio Aquifer case study contributing to workshops on the emerging international law of transboundary aquifers in San Salvador, El Salvador. He would like to thank Marina Rubio and Stefano Burchi for comments on this short piece. This blog is also available as a SCELG Policy Brief here. Dr. Sindico can be reached at francesco.sindico [at] strath.ac.uk.

On 22 February 2019 the Ocotepeque – Citalá Statement of Intent (Ocotepeque – Citalá SoI) – was signed (the official title in Spanish is “Carta de Intención entre municipalidades, juntas de agua, instituciones nacionales y regionales para la gobernanza integrada del acuífero Ocotepeque – Citalá compartido por El Salvador y Honduras en la región del Trifinio”). If only for the scarcity of agreements on transboundary aquifers (TBA), the Ocotepeque – Citalá SoI is to be celebrated, although it should not be considered as a formal legal instrument and should not be added to the very short list of TBA agreements in existence globally. Nevertheless, the document is interesting in a number of ways, and not just because it adds to the very scarce state practice in the field of TBA management. This short piece provides a brief overview of the main provisions of the Ocotepeque – Citalá SoI and focuses on a specific aspect: its inclusiveness when it comes to parties participating in the governance of the TBA.

The Ocotepeque – Citalá Statement of Intent and the GGRETA Project

The Ocotepeque – Citalá SoI is one of the results of the Governance of Groundwater Resources in Transboundary Aquifers (GGRETA) project funded by the Swiss Development and Cooperation Agency and implemented by UNESCO-International Hydrological Programme in collaboration with the International Union for the Conservation of Nature. The project was key in providing clarity as to the nature and extent of aquifers in the Trifinio region, which includes parts of Guatemala, El Salvador and Honduras. The project was also essential in bringing together a wide array of stakeholders interested in surface water and groundwater management in the region. Finally, the project also provided local stakeholders with capacity building on the emerging international legal frameworks applicable to transboundary aquifers.

While the GGRETA project is to be celebrated and served as a catalyst for this arrangement, the Ocotepeque – Citalá SoI is the result of the will of people living over the transboundary aquifer and has been shaped by local, national and regional actors.

An overview of the Ocotepeque – Citalá Statement of Intent

The Ocotepeque – Citalá SoI has a preamble, 6 main statements, and a final section that concludes the text. The preamble references sovereignty, a sticking point in the debate over the international law of TBAs, and to water as a vital human need and its importance for indigenous people. The preamble also focuses on climate change and on the need to have a reliable database as a precursor for any solid cooperation. It then makes clear references to the emerging international law of transboundary aquifers and UNGA Resolution 63/124 and to the Sustainable Development Goals, with a specific mention of SDG 6.5.

Moving to the substance of the text, the key intent of the signatories is to establish in future, and when appropriate, a TBA Binational Management Committee, and to nest it in the existing tri-national institutional framework for the implementation of the Plan Trifinio (Guatemala, in addition to El Salvador and Honduras, is also a member of this framework). The Committee would be constituted by:

  • 1 person per municipality in the Ocotepeque – Citalá Aquifer area;
  • 2  persons per country representing the local Water Supply & Sewage Authorities operating in the Ocotepeque – Citalá Aquifer area;
  • 1 representative of the network of municipal commonwealths of the Trifinio region;
  • 1 representative of the Plan Trifinio Executive Secretariat;
  • 1 representative each of the ministries responsible for water resources in El Salvador and in Honduras.

The TBA Binational Management Committee also will ensure adequate gender representation and participation of indigenous people. The activities and tasks of the TBA Binational Management Committee are to consist of:

  • Collection and collation of data necessary for the sound management of the TBA;
  • Exchange of information amongst all TBA stakeholders; and
  • Identification of funding in order to deliver its activities.

The signatories further commit themselves to share information available to them, including socio-economic data that is collected locally on both sides of the border. Signatories also commit to harmonize this data in order to facilitate their processing. All these commitments are qualified, as they will be undertaken based on the signatories’ capacities, competences, and respective authority.

Finally, it is foreseen that the cooperation triggered by the Ocotepeque – Citalá Aquifer Binational Management Committee will lead in the future to an agreed binational strategy for the conservation, protection and sustainable utilisation of Ocotepeque – Citalá Aquifer resources, including an implementation plan. In a bid to achieve the integrated management of the water resources in the region, the strategy will take into account the relationship between the Ocotepeque – Citalá Aquifer and the Ocotepeque – Citalá Valley surface water system.

An open and inclusive list of actors in the governance of the Ocotepeque – Citalá Aquifer

One striking aspect of the Ocotepeque – Citalá SoI is its inclusiveness. The document is not an inter-governmental agreement negotiated and signed by the Ministries of Foreign Affairs. However, it is also not “just” a document signed by two sub-national entities, like the Salto-Concordia agreement related to the Guarani Aquifer System. The list of signatories to the Ocotepeque – Citalá SoI includes the following actors:

  • Municipalities;
  • Local water supply and sewerage authorities;
  • Network of municipal commonwealths of the Trifinio region;
  • Plan Trifinio Trinational Commission; and
  • The ministries responsible for water resources in the two countries sharing the  Ocotepeque – Citalá Aquifer.

The Ocotepeque – Citalá SoI is, hence, truly a document stemming from local, national and regional stakeholders. It includes actors who rely on the aquifer for their daily lives and actors who sit further away in the capitals of El Salvador and Honduras. This combination gives both immediacy and legitimacy to the document. The actors also include the top-level executives of the institutional framework in place for the implementation of the Plan Trifinio. This has operated over the past decades as a strong regional organisation capable of leveraging good practices in the field of natural resources management in the area of the Trifinio mountain range that straddles the borders of El Salvador, Guatemala and Honduras.

Interestingly, in its final section, the Ocotepeque – Citalá SoI opens itself to any public and “private” stakeholder based in the area of the Ocotepeque – Citalá Aquifer that wishes to join the initiative. In order to be added to the list of stakeholders that have subscribed to the common intent recorded in the Statement, the representative of the organisation (public or private) simply needs to sign the document.

The possibility of adding more signatories to the document appears to be a positive step forward in increasing the document’s legitimacy. However, it also begs the question of whether this could open the floodgates and reduce the effectiveness of the Ocotepeque – Citalá SoI. The possibility to have private actors sitting aside public actors is a novelty in the field of TBA management. Again, in principle, the participation of private actors should be commended as a positive step since it includes all stakeholders in the future management of the Ocotepeque – Citalá. However, safeguards should be developed to ensure that private actors involved in any future institution and governance framework developed through the SoI contribute meaningfully and not only as a means to lobby their own commercial interest. A further aspect concerns whether foreign private actors will be allowed to sign the document. As it currently stands, the only requirement is that they “belong” to the area of the Ocotepeque – Citalá.

Final remarks on the legal nature of the Ocotepeque – Citalá Statement of Intent

It is worth reminding that the Ocotepeque – Citalá SoI is not a treaty or a Memorandum of Understanding. The document signed in February 2019 in Esquipulas is a mere statement of admittedly good intentions, and should be considered only as such. It does not impose any legal obligation upon any of the signatories, and definitely not on the two countries that share the Ocotepeque – Citalá Aquifer. Nevertheless, the SoI does signal a first step toward a future bi-national cooperation mechanism, and possibly a legal instrument that would underpin it.

UNESCO press release on the Ocotepeque – Citalá Statement of Intent (in Spanish) – https://es.unesco.org/news/avance-historico-gestion-conjunta-recursos-hidricos-compartidos-salvador-y-honduras

Adapting Watercourse Agreements to Developments in International Law: The Case of the Itaipu Treaty

Tuesday, April 16th, 2019

The following essay by Dr. Maria A. Gwynn is a summary of her recently published monograph (under the same title), which appears in Vol. 4(1) 2019, of Brill Research Perspectives in International Water Law.  Dr. Maria A. Gwynn is a Senior Research Fellow at the Institute of Public International Law of the University of Bonn, and conducted most of the research contained in this monograph while she was an Oxford-Princeton Global Leaders Fellow at Princeton University and at the University of Oxford. She can be reached at maria.gwynn [at] uni-bonn.de.

 

The UN Convention on the non-navigational uses of international watercourses recommends that states adapt their existing bilateral and regional agreements to the provisions of the Convention to promote equitable and reasonable uses of watercourses. This monograph assesses the practical consequences of this provision, and the prospects for achieving sustainable development with such action, and uses the Itaipu Treaty as a case study.

The Parana River

The Itaipu Treaty, which was signed and ratified by Brazil and Paraguay in 1973 and continues to be in force today, was established so that these two countries would jointly pursue the advantages that could be obtained from the exploitation of the Parana River to

The former Guaira Falls

produce hydropower through the construction of a dam. The Parana River is an international watercourse on the South American continent sourced by the La Plata basin. The dam was constructed at the river’s most powerful point, the Guaira Falls, formerly the greatest set of waterfalls on the South American continent, which disappeared after the construction of the dam.

The river’s great resources were not underestimated. Today, the sheer amount of energy that the Itaipu Dam produces has placed both countries among the largest producers of clean and renewable energy in the world. However, while Brazil consumes its entire share of the energy produced, Paraguay (whose available share of energy from the hydropower facilities far exceeds its own domestic energy demands) only consumes a small part of this clean and renewable energy source. Paraguay, instead, continues to use biomass sources (burning of coal and wood) to satisfy most of its energy needs. Under the Itaipu Treaty, Paraguay sells its unused allotment of energy to Brazil.In general, the Itaipu Treaty regulates the use and consumption of hydropower produced by the dam, making the provisions of the treaty very pertinent to understanding the two countries’ energy policies.

The Itaipu Dam and Reservoir

The Itaipu Treaty entered into force before the United Nations International Law Commission had finished its task of evaluating the international law and customs on the non-navigational uses of international watercourses, embodied in the UN Watercourses Convention, and before some of the major developments concerning international environmental law came about. However, the Itaipu

Treaty contains a renegotiation provision, according to which the two states must renegotiate some of its provisions 50 years following the conclusion of the treaty, i.e. in the upcoming year 2023. The monograph argues that this is a great opportunity for both countries to adapt their watercourse agreements to the current standard and principles of international law.

The monograph provides a detailed assessment of the advantages of adapting watercourse agreements to the standard and principles of all pertinent areas of international law, such as international water law, international environmental law, and climate change law. The first part of the monograph begins with an analysis of the initial approaches to the law of international watercourses in the first half of the twentieth century. It discusses some of the main principles of the law governing international watercourses and the work of pertinent institutions concerned with this area. In this sense, the first part of the monograph describes the status of the law on international watercourses at the time when the Itaipu project was first pursued.

Signing the Acta de Yguazu Agreement in 1966

The second part of the monograph discusses the Itaipu project in its legal and historical context. An analysis of the principles of consultation and notification for projects on international watercourses are particularly instructive. The monograph describes the relevance of the role of Paraguay, which despite being a main treaty party, has often been neglected in the scholarship.  The monograph shows how escalation of disputes to an international conflict regarding sovereignty was eased by benefit sharing agreements and inter-state cooperation of the countries of the La Plata basin. The monograph also offers a comparative analysis to similar cooperation and benefit sharing agreements signed at about the same time in other parts of the world.

The Itaipu Agreement

The third part of the monograph describes the advances in the law of international watercourses and of environmental law since the 1970s, and places the implementation of the Itaipu Treaty, which in turn is analyzed in the fourth part of the monograph, within this context. The fifth part of the monograph describes recent disputes concerning the non-navigational uses of international watercourses decided by the International Court of Justice in an analysis that connects the decisions of such judgments with the monograph’s object of study.

The monograph concludes by highlighting how the treaty provisions and their implementation could be affected by the developments in international law and the UN Watercourses Convention in particular. It argues that adapting watercourses agreements like the Itaipu Treaty to the provisions of the Convention is a way to foster

The UN Sustainable Development Goals

sustainable development. Doing so would be advantageous not only to the treaty parties, but also to the other countries in the water basin and to the international community as a whole.

The monograph is dedicated to the memory of Prof. Dr. Efrain Cardozo (1906-1973) and to Prof. Dr. Ruben Ramirez Pane (1920-2004).

The entire article is available here.

 

Legal rights for rivers: new book explores the implications of these groundbreaking laws for water governance

Monday, December 3rd, 2018

The following essay by Erin O’Donnell provides an overview of her new book: Legal Rights for Rivers: Competition, Collaboration, and Water Governance. The book is now available for purchase here.

In 2017 four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA. Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environmental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. When rivers are legally people, does that encourage collaboration and partnership between humans and rivers, or establish rivers as another competitor for scarce resources?

But legal rights for rivers are very new. To really understand what it means to give rivers legal rights and legal personality, we need evidence of what happens over a longer period. This book uses the example of the environmental water managers (EWMs) in Australia and the USA as a way to understand the implications of giving legal rights to rivers.

As individual organisations, EWMs have legal personality, and have been active in water resource management for over two decades. EWMs operate by acquiring water rights from irrigators in rivers where there is insufficient water to maintain ecological health. EWMs can compete with farmers for access to water, but they can also strengthen collaboration between traditionally divergent users of the aquatic environment, such as environmentalists, recreational fishers, hunters, farmers, and hydropower.

Figure 1: the paradox of legal rights: as legal protection goes up, this can lead to increasing complacency and an abdication of our responsibilities to look after the environment

This book explores how EWMs use the opportunities created by giving nature legal rights, such as the ability to participate in markets, enter into contracts, hold property, and enforce those rights in court. However, examination of the EWMs unearths a crucial and unexpected paradox: giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for protecting the environment in the first place (Figure 1).

Understanding this paradox requires going back to basics, and considering how the environment has been constructed in law over time. The book develops a new conceptual framework to identify the multiple constructions of the environment in law, and how these constructions can interact to generate these unexpected outcomes. Although there are myriad and widely different definitions of the environment in law, there are three main constructions of the environment in law: (1) a socio-ecological concept, (2) a legal object, and, most recently, (3) a legal subject (Figure 2).

Figure 2: understanding the paradox of legal rights for nature requires an understanding of how the environment is constructed in law

 

By focusing on the way the environment is constructed in law, we can also start to identify the underlying cultural narratives, and the way those narratives can shape our legal response and drive legal reform. The legal object has no rights of its own, and links the concepts of legal weakness with the idea of being worthy of protection. The legal subject, on the other hand, does have legal rights, which generates an alternative narrative, where the environment can, and thus should, look after itself. These tensions have specific consequences for the environment, because of the initial construction as a highly flexible socio-ecological concept: the environment can be whatever it is defined to be in specific legislation, but it is also only ever what law articulates it to be. As a result, the overarching concept of what the environment is, and why it matters, is highly vulnerable to shifting social values (Figure 3).

Figure 3: tensions between the different constructions of the environment in law can lead to significant shifts in the broader socio-ecological concept

 

By examining the form and function of the EWMs in the USA and Australia, this book shows that changing cultural narratives about what the environment is, and why it does (or does not) deserve protection, can lead to large shifts in water law and governance.

This paradox is not, of course, a foregone conclusion of granting legal rights to rivers. The book draws on lessons from the EWMs, as well as early lessons from the new ‘river persons’, to show how to use the law to improve river protection and how to begin to mitigate the problems of the paradox.

The book is now available for purchase here.  To request a review copy, please complete the form here. Lecturers and instructors can request an e-book inspection copy here.

 

Countdown to the Guarani Aquifer Agreement coming into force: will it be effective in promoting transboundary groundwater governance?

Monday, June 18th, 2018

The following essay is by Pilar Carolina Villar, Professor of Environmental Law at Federal University of São Paulo. She can be reached at pcvillar [at] gmail.com.

The signing of the Guarani Aquifer Agreement (Portuguese / Spanish / English [unofficial]) on August 2, 2010, by Argentina, Brazil, Paraguay and Uruguay was received by the water community with excitement due to the few number of treaties dedicated to transboundary aquifer cooperation, the absence of a water conflict, and the short time it took to secure the signatures after the end of the Guarani Aquifer System Project. In 2012, Argentina and Uruguay ratified the treaty with the promulgation of Law n° 26.780/2012 and Law n° 18.913/2012, respectively. Thereafter, the Agreement faced a period of stagnation until May 2017 when Brazil ratified it with Legislative Decree n° 52/2017. Almost a year later, in April 2018, Paraguay ratified the Agreement when it approved Law nº 6037/2018.

After almost 8 years, the Agreement is in the final stage of coming into force, although Paraguay has yet to deposit its instrument of ratification with Brazil, which is the official depository for the Agreement. According to Article 21, the Agreement will officially enter into force on the thirtieth day after that deposit occurs.

Schematic hydrogeological map of the Guarani Aquifer System. Source: The Guarani Aquifer Initiative – Towards Realistic Groundwater Management in a Transboundary Context, Case Profile Collection Number 9. Sustainable Groundwater Management: Lessons from Practice (Nov. 2009)

The Agreement’s ratification by the four countries represents a new phase in the process of cooperation among the Guarani countries. It allows implementation of the Guarani Aquifer Commission, and the possibility of restarting cooperative projects that will promote the development of knowledge and management of the Guarani Aquifer System. However, considering the long ratification process of the Agreement and the role of other transboundary water organizations in the La Plata Basin, should we be optimistic in the context of transboundary aquifer cooperation?

In view of the lack of international agreements for the joint management of transboundary aquifers, the ratification of the Agreement represents a milestone to encourage more countries in South American to include groundwater cooperation in their practice of international affairs. Moreover, the ratification opens a path for the establishment of a common institutional arrangement dedicated exclusively to groundwater issues among the four countries. The existence of an international agreement could also be used as a positive force for attracting international funds from organizations like the Global Environment Fund, World Bank, Organization of American States, UN Environmental Programme, and UN Development Programme, which may be interested in supporting the operationalization of the only international groundwater cooperative arrangement in South America. Finally, the Guarani Aquifer States could become more interested in promoting cooperative projects and actions regarding the aquifer since the Agreement will soon be binding on all of them.

The future of the Guarani Aquifer Agreement is dependent especially on the will of the countries to enforce the agreement’s institutional framework. On this point, the projections are not necessarily encouraging. While the Guarani Aquifer Commission is the pillar of the Agreement, it is unclear what its powers will be or whether it will have legal personality under international law. Moreover, it is impossible to foresee when the countries will establish the Statute of the Commission. Regardless, it does not seem to be a priority in the short term, especially considering the current political and economic conditions of the Guarani countries.

Even with the Guarani Aquifer Commission, cooperation should not be taken for granted. The La Plata Basin has a complex institutional system made up of fourteen organizations that have legal personality under international law and four technical committees. All of them face difficulties in consolidating themselves as leading players in cooperation over the La Plata basin. In fact, the amount of institutions contrasts with the relatively low number of joint actions and products resulting from their work. Even the Intergovernmental Coordinating Committee of the Countries of the Plata Basin, which is the oldest water-related organization in the La Plata Basin area, still has problems receiving financial support from its member countries, and largely depends on international funds to conduct studies in the basin. As a result, the Guarani Aquifer Commission runs the risk of becoming another water-related organization with very limited influence.

Implementation of the Agreement and creation of the Guarani Aquifer Commission could benefit from the existence of CeReGAS – Centro Regional para la Gestion de Aguas Subterráneas (Regional Center for the Management of Groundwater), an international center located in Montevideo, Uruguay, that is dedicated to promoting groundwater management and cooperation in the regional context. While CeReGAS and the Guarani Aquifer Commission have different mandates, since the first is a regional center supported by UNESCO and the other is an organization established by an international treaty restricted to the Guarani Aquifer countries, they might build an alliance to optimize funding and technical resources. Their scope is closely related since both focus their efforts on the promotion of groundwater cooperation, one in the South American context while the other in the Guarani Aquifer region. CeReGAS has also developed a case study on the Guarani Aquifer, and has produced documents on and disseminated the results of the Guarani Aquifer System Project.

The Agreement soon will come into force and become a binding instrument for the Guarani Aquifer States. However, the questions of when and how it will be implemented remain unanswered. The challenges to applying the Agreement are some of the same facing other water agreements in the region: overcoming the tendency of building fragile water-related institutions, improving cooperation between institutions or between States, expanding transparency in actions of cooperation, and guaranteeing financial support. In this sense, the first step for the countries involved is to establish the Commission and define its capacity, a mission that could be facilitated by the presence of CeReGAS. Then, the States involved must overcome the traditional challenges related to political will, institutional capacity and efficiency, as well as the provision of funds to support the Commission and the execution of cooperative projects. Only time will tell if the Guarani Aquifer States will cooperate successfully over the joint management of the Guarani Aquifer.

The Human Right to Water in Latin America

Monday, May 14th, 2018

The following essay by Anna Berti Suman is a summary of her recently published monograph (under the same title), which appears in Vol. 3(2) 2018, pp. 1-94, of Brill Research Perspectives in International Water Law. Ms. Berti Suman is a PhD Researcher at the Tilburg Institute for Law, Technology and Society (TILT) at Tilburg University in The Netherlands. She can be reached at A.BertiSuman [at] uvt.nl.

The right to water (RtW) is a key factor both shaping and shaped by the social, political, and economic arena of a country. Often, conflicting interests are at stake when water governance is addressed. A large and heterogeneous number of governance solutions have been proposed with the aim of balancing the interests of civic society and the private sector, as well as respect for the environment and public finance concerns. The main aim of this monograph is to illustrate and analyze lessons from Latin America contributing to the international debate on the governance of the RtW. The attention is specifically focused on questioning the role that each stakeholder should have in the water debate with a view to harmonizing the RtW with the interests of the concerned stakeholders.

Water, as a shared resource, calls for a transboundary approach. Various forms of cooperation and association among the global community are discussed as, for example, the World Water Forum organized by the World Water Council, and the Global Water Partnership. Relevant treaties, such as the 1992 UN Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, demonstrate the importance of cross-sectorial and multi-level cooperation in addressing water governance challenges.

Demonstrations during the ‘Water War’ in Cochabamba, Bolivia, which occurred December 1999 – April 2000.

Subsequently, the monograph proceeds in a preliminary and indispensable discussion on the dual nature of water, as an indispensable source of life and as an economic good, thereby acknowledging that water has been recognized as a social good and a human need, as well as a commodity. Its economic value will be inspected through the analysis of the debate ongoing at the international and national levels. A remarkable example of this double nature is identified in the Chilean legal framework for water, where two texts provide for the rights of private citizens over water (granted by the 1980 Constitution and the 1981 Water Code) and for water as a national property for public use (as stated by the 1981 Water Code; the Constitution lacks a similar provision). The economic value of water is also approached from the international perspective, as enshrined in the 1992 Dublin Statement on Water and Sustainable Development.

The monograph next delves into local scenarios and inspects the transposition of RtW in constitutional laws of Latin American countries and its interplay with water management systems. Part A investigates the broader  discussion in Latin America on the responsibility of the state towards the right to water, when recognized in constitution and when acknowledged through different legal tools. It also considers whether the state has a duty to grant a quantitative and qualitative minimum of fresh water to everyone, even if through subsidies or by impinging on private interests. The consequences of a state’s decision-making process that does not take into account the RtW are illustrated through three case studies, the participatory case of Porto Alegre, Brazil, and two cases of conflicts over water management, namely the case of the Matanza-Riachuelo River Basin, Argentina, and the case of Cochabamba, Bolivia.

The cases presented in Part A serve to illustrate the limits of the law in resolving water management issues. The discussion also examines the judicial system under the analytical lens of its suitability to settle water disputes. Overall, Part A stresses the need to focus the water debate on specific issues rather than on general statements.

The linking element bridging the transition from Part A to Part B is the discussion of whether the right to water as a human right is in antithesis to privatization. Part B considers the main Latin American water management systems, with their advantages and disadvantages, and compares them with European legal frameworks. In principle, the analysis suggests that the recognition of water as a human right does not prevent the privatization of the service, as long as the state monitors the private provider’s operations and complies with its obligations to ensure the RtW.

Participatory budgeting including water issues in Porto Alegre – Brazil

Part C provides a specific insight into the relationship between the market and the RtW in the context of Chile’s highly privatized water framework. The Chilean case offers an opportunity to reflect on the importance of the engagement of all affected stakeholders in the water debate as well as on the need for a wise compromise among them.

In the Conclusion, the lessons learnt from Latin America are summarized. The limits of the law in resolving water conflicts, and the disconnection of water issues from the adopted legal framework, are outlined to demonstrate the mismatch between the legal framework and the reality of water challenges. While it is not possible to identify the ‘best’ water management model, the analysis affirms the general need for a focus on the specificities of each river basin unit. The final message presented is that recognition of water as a human right does not prevent the possibility of privatizing the service if the state fulfills its obligations toward the right to water. Ultimately, the engagement of all affected stakeholders in the debate over water can facilitate constructive and open-minded compromises for jointly facing water challenges.

 

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)

Monday, 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.

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

Thursday, 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.