International Water Law Project Blog

The following post, by Dr. Stephen C. McCaffrey, is the first in a series of essays related to the entering into force of the UN Watercourses Convention (see links to all of the essays here). Dr. McCaffrey is the Distinguished Professor of Law at the University of the Pacific McGeorge School of Law and former Special Rapporteur of the UN International Law Commission for the draft articles on the law of the non-navigational uses of international watercourses. Dr. McCaffrey can be contacted at: smccaffrey [at] pacific.edu. 

With the thirty-fifth ratification by Vietnam on 19 May 2014, the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses will enter into force on 17 August 2014, ninety days after that ratification as provided by Article 36(1) of the Convention.  While the pace of ratifications has been rather slow, after an initial burst of them by Middle Eastern States, it has picked up of late.  The Convention’s entry into force is no doubt a landmark event for international water law, but it also augers well for the protection, use and management of international freshwater resources according to generally accepted principles. Despite the importance of the Convention’s entry into force, however, one should not lose sight of its significance as a reflection of basic principles of customary international law on the subject.

It is well known that the Convention was negotiated at United Nations Headquarters in 1996 and 1997 on the basis of a set of draft articles prepared by the International Law Commission over a twenty-year period (1974-1994).  The Commission had been requested by the General Assembly in 1970 to study the topic with a view to its progressive development and codification.  “Codification” in this context refers to the more precise formulation of rules of customary international law.  The Commission’s draft articles were adopted by the negotiating governments with only minor – albeit in certain cases important – changes.  The result is a treaty that would be expected to codify the most fundamental principles of the law of international watercourses.  Those principles are generally believed to be equitable and reasonable utilization, prevention of significant harm, and prior notification of planned measures.  They are expressed in specific provisions of the Convention, but a number of other provisions are supportive of or ancillary to them – such as the general obligation to cooperate, the obligation to exchange data and information on a regular basis and the obligation to protect and preserve aquatic ecosystems. To the extent that the 1997 Convention represents such a codification, the rules reflected in it would be binding on all states as customary international law whether or not the Convention was in force for a particular state.

Rather remarkably, almost immediately after the Convention was concluded the International Court of Justice began drawing heavily upon it in its judgments.  Thus in the Gabčíkovo-Nagymaros Project case (Hungary/Slovakia) (ICJ 1997), decided four months after the Convention was concluded, the Court quoted from the Convention as support for principles it articulated and relied on what is perhaps the Convention’s most basic principle, equitable and reasonable utilization, calling it a “basic right” of all states sharing international watercourses.  The same principle figured prominently in the case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (ICJ, 2010).

An aspect of the Convention’s scope that is sometimes not fully appreciated is that it covers both surface water and related groundwater.  This is due to the way the term “watercourse” is defined, to mean “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole . . . .”  (Article 2(a).)  Since most of Earth’s groundwater interacts with surface water, this coverage is quite broad.  And importantly so, since some 97 per cent of the fresh water available for human use is underground.  Thus the Convention’s provisions would apply to shared aquifers that have some connection with surface water as well as aquifers that are not themselves shared but which have a hydraulic connection with shared surface water.

A final point raised by the entry into force of the 1997 Watercourses Convention concerns the relationship of that treaty to the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes.  The latter agreement was originally envisaged and designed as a regional instrument covering states within the ECE.  This is reflected in the rather low number of parties required for its entry into force (16, under Article 26(1)) and by its emphasis on avoidance of transboundary impact, defined as “any significant adverse effect on the environment” (Article 1(2)), an issue of particular concern in the generally well-watered  and developed region.  By virtue of an amendment to the ECE Convention that entered into force on 6 February 2013, the agreement is open to accession by states outside the UNECE region.  Thus with the entry into force of the 1997 UN Convention, there are two treaties on shared freshwater resources that are open to participation by all states.  This raises the question whether the two are compatible.

The answer, in my judgment, is yes.  The two treaties have essentially the same object and purpose – cooperative use, management and protection of shared freshwater resources – even though they go about accomplishing it somewhat differently.  The 1992 Convention contains far more detailed provisions on avoidance of transboundary impact and protection of international watercourses from pollution but these are complementary to the corresponding, more general, provisions of the 1997 Convention.  Likewise, the emphasis of the 1997 Convention on equitable and reasonable utilization complements the 1992 Convention, which covers the principle concisely in the context of activities which cause or may cause transboundary impact (Article 2(2)(c)).  The fact that one state with significant international watercourses, Uzbekistan, has already ratified both treaties suggests that governments, too, see a synergy between them.

In conclusion, the entry into force of the 1997 Watercourses Convention is a signal event in the development of international water law.  The fact that it took a number of years to achieve this status should not be a concern.  The Convention expresses basic principles of customary international law in the field in any event, many states who might otherwise have joined it already have their freshwater relations covered by specific agreements, and experience has shown that bringing general agreements like this into force can take time.  But now that the Convention has achieved the required number of ratifications to bring it into force, parties will have a constitution for their water relations, something that may encourage non-parties to join, as well.

By Gabriel Eckstein

Well, it finally happened.  On 19 May 2014, Vietnam became the 35^th party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. This means that on 17 August 2014, 90 days after that 35th ratification was deposited, the Convention will come into force.

Long in coming, the Convention’s success was never guaranteed. Adopted by the UN General Assembly in 1997, the Convention appeared set for ratification as 103 of the UN’s Member States voted in favor of it. Only three countries voted against – Burundi, China, and Turkey – while 27 nations abstained and 33 were absent from the vote. That vote, however, masked long-standing disagreements over how transboundary fresh water resources should be allocated and managed. In particular, upper and lower riparians disagreed between the primacy of the Convention’s cornerstone principles of equitable and reasonable use – favored by most upper riparians – and the doctrine of no significant harm – preferred by most lower riparians (for a more detailed analysis of the UNGA vote on the Convention, as well as the disparate interests, see my article).

Lackluster support in the years following the Convention’s inception suggested to some that the treaty was doomed to failure. More recently, though, the rate of ratifications more than doubled (18 in the first 12 years in comparison to 17 over the past five years). While that resurgence may have been due, in part, to the efforts of World Wildlife Fund (which in around 2009, added implementation of the Convention to its advocacy agenda), it also suggests a broadening recognition that nations have an obligation to cooperate over transboundary freshwater resources. Maybe it’s the threat of climate change, or concerns over dwindling domestic water resources. But, the fact that states are willing to bind themselves to the procedural and substantive norms of the Convention is a promising sign.

Map of State Parties to the UN Watercourses Convention

Entry into force of the Convention, though, is not the last word on the matter. In fact, this milestone raises as many new questions as existed leading to its implementation. For example, what does the geographic distribution of member states indicate for the global success of the treaty? Of the 35 ratifications, the vast majority are from either Africa (12) or Europe (16); only two ratifying parties are found in Asia and none come from the American hemisphere; five others are from the non-African Middle East region, albeit a total of eight MENA nations are now a party to the Convention. At the very least, this distribution suggests a certain geographic bias toward (and against) the Convention.

In addition, what will implementation of the Convention mean in practice? How will nations implement its mandates within their borders and in relation to riparian neighbors? Why have nations in the Americas and Asia eschewed ratification? What does the entry into force of the Convention mean for the UNECE Water Convention, which is already in force in much of Europe and on 6 February 2013, opened its membership to the rest of the world? And, what will the Convention’s implementation mean for existing regional and local transboundary freshwater agreements?

In the coming weeks, the IWLP Blog will host a series of essays addressing many of these intriguing questions. We have invited some of the most knowledgeable scholars and practitioners to offer their perspectives on the Convention’s imminent entry into force as well as on its future. As part of this series, we invite you to participate in the conversation by submitting comments at the bottom of each essay and add your own perspectives and opinions to the discussion. As you formulate your thoughts, you might want to review a prior series hosted by the IWLP Blog and prepared by Dr. Alistair Rieu-Clarke and Ms. Flavia Loures (see here and here). In addition, Water International published a special issue on the Convention accessible here.

The entry into force of the Convention is a significant landmark development in the international community’s efforts to better and peacefully manage transboundary fresh water resources. Whether this achievement translates into improved and more peaceful cooperation is a future that has yet to be written.

Essays related to the entering into force of the 1997 UN Watercourses Convention

1. Dr. Stephen McCaffrey: The Entry Into Force of the 1997 Watercourses Convention

2. Dr. Salman M.A. Salman: Entry into Force of the UN Watercourses Convention – Where are the Nile Basin Countries?

3. Dr. Dinara Ziganshina: UN Watercourses Convention in Central Asia – The Current State and Future Outlook

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

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

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

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

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

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

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

11. 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
    

On 20 December 2013, Ireland became the 33rd Party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses, only seven days following the accession of the United Kingdom to the Convention.  Of the 33 ratifications, four occurred in 2013 (Ireland, Montenegro, Niger, and the UK), five in 2012 (Benin, Chad, Denmark, Italy, and Luxembourg), three in 2011 (Burkina Faso, France, and Morocco), three in 2010 (Greece, Guinea-Bissau, and Nigeria) and two in 2009 (Spain and Tunisia). If the present rate of ratifications continue, the Convention could come into force within the next year, possibly in a matter of months. The Convention requires 35 parties for it to achieve that status.

Curiously, of the 33 parties to the Convention, the vast majority are from either Africa (11) or Europe (16). Only one ratifying state is found in Asia (Central Asia to be precise) and none come from the American hemisphere. Five others are from the non-African Middle East region, albeit a total of eight MENA nations are now a party to the Convention.

It is certainly peculiar that not one nation from the Americas has ratified the Convention. Venezuela and Paraguay were two very early signatories to the Convention. Yet, neither has made much headway toward full party status, and no other country in the region seems poised to join the Convention. And in Asia, only Uzbekistan has made the commitment.

What this geographic distribution portends is still unclear. At the very least, it suggests a certain geographic bias toward (and against) the Convention. And, once the Convention comes into force, that could raise the question of whether the geographic distribution of ratifying nations is adequate to project the Convention globally. Nations in Asia and the Americas, for example, might claim that the principles codified in the Convention apply only regionally – in Africa and Europe, and possibly the Middle East.

Those nations who are now full parties to the Convention have made a commitment to abide by the Convention’s norms. If they want the rest of the world to follow suit, they may want to consider developing a compliance strategy, possibly even a promotion strategy aimed at convincing other nations and regions to join the Convention. Additionally, given that only two ratifications are needed before the Convention comes into force, they need to begin thinking about a Convention Secretariat to administer the Convention and related activities (such as monitoring compliance and encouraging membership).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Part II of this post here.

On 8 June 2012, Luxembourg became the 26th nation to ratify or otherwise become a full party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The other 25 states include: Burkina Faso, Denmark, Finland, France, Germany, Greece, Guinea-Bissau, Hungary, Iraq, Jordan, Lebanon, Libya, Morocco, Namibia, The Netherlands, Nigeria, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syria, Tunisia, and Uzbekistan.  In addition four nations have signed the treaty but have yet to become full ratifying members: Côte d’Ivoire, Paraguay, Venezuela, and Yemen. You can find the updated status of the Convention here.

Of the 26 ratifications, two occured in 2012 (so far), three in 2011, three in 2010, and two in 2009. If the present rate of ratifications continue, the Convention could come into force within three or so years. The Convention requires 35 parties for it to achieve that status.

While it is probably still too early to identify any definitive trends, it is at least curious that of the 26 states that have ratified the Convention, twenty are either from Africa (8) or Europe (12). Five others are from the non-African Middle East region, albeit its also true that eight are MENA nations. Only one ratifying state is found in Asia (Central Asia to be precise) and none come from the American hemisphere.

What this might mean is still unclear. But the geographic distribution of the ratifications could suggest a geographic bias or disfavor for the Convention. As nations continue to ratify the instrument (and I do expect more nations to do so), it will be interesting to see whether this trend continues. Moreover, it will be interesting to see what this might mean if and when the Convention comes into force.

For those of you keeping a count, the 1997 Watercourses Convention now enjoys 25 parties [see Status of the Convention here]. On 30 April 2012, Denmark submitted its notice of accession to the Convention.  This comes on the heels of 6 other ratifications over the past 2 years: Burkina Faso, France, and Morocco in 2011; and Greece, Guinea-Bissau, and Nigeria in 2010. The other parties to the Convention include:  Finland, Germany, Hungary, Iraq, Jordan, Lebanon, Libya, Namibia, The Netherlands, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syria, Tunisia, and Uzbekistan. In addition, five nations have signed but not yet ratified the Convention: Côte d’Ivoire, Luxembourg, Paraguay, Venezuela, and Yemen.

Denmark is the first nation in 2012 to ratify the instrument. But it may not be the last. In 2011, Benin’s parliament authorized its government to ratify the treaty. Other countries also are considering ratification. If this rate continues, the treaty may enter in force in the next few years. Under Article 36(1) of the Convention, the treaty will become binding on all ratifying parties ninety days following the 35^th ratification. That day may be coming soon.

Incidentally, it is interesting (but not surprising) that when it filed its notice of accession, Denmark also submitted a notice excluding from its accession application of the Convention to the Faroe Islands and Greenland [see notice here].