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UN
ESCO
IHP-
HEL
P Ce
ntre
for W
ater
La
w, P
olic
y &
Sci
ence
Climate Change and its Implications for Sustainable Development and Cooperation in the Nile Basin – Threats and Opportunities to Nile Basin Cooperation
3rd Nile Basin Development Forum Kigali, Rwanda
26-28 Oct 2011 Professor Dr Patricia Wouters
UN
ESCO
IHP-
HEL
P Ce
ntre
for W
ater
La
w, P
olic
y &
Sci
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Coping by Cooperating:Addressing transboundary dimensions of climate change - Dynamic Cooperation
3rd Nile Basin Development Forum Kigali, Rwanda
27 Oct 2011 Professor Dr Patricia Wouters
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3
1. Global Water & Climate Change Transboundary Challenges
2. Rule of Law as platform for Dynamic Cooperation3. Responding to the Challenges
Coping by Cooperation
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4
The Global Water Challenge
No development without water
1.2 billion without safe drinking water and2.4 billion without sanitation
wideningwater gap
Only a fractionreadily available
1.4 billion km3 ofwater on Earth
Growing issues of availability, access, and addressing conflicts-of-use
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5
Availability and Access issues: Too little…
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6
Availability and Access issues: too much
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 7
Global water security threat
C. J. Vörösmarty et al., 'Global Threats to Human Water Security and River Biodiversity', 467 Nature (2010) 7315, 555.
• Water Security – ‘the state of having secure access to water; the assured freedom from poverty of, or want for, water for life.’[P. Wouters, 2005]
• 80% of population exposed to high levels of threat to water security…
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 8
Competing Security Challenges| the FEW Nexus1 bn suffer from hunger
2.4 bn lack access toimproved sanitation
0.9 bn lack access to safe water
1.5 bn without accessto electricity
2.5 bn without access to modern forms of energy
30-50% in demand by 2030
40% in demand by 2030
40% in demand by 2030
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 9
Water Security: competing demands
Availability
Access
Addressing Conflicts-of-
use
WSAF:1. Legal
framework2. Informed by
science3. Dynamic
What?
Who?Why?
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 10
Water | Competing (in)securitiesWater Security: “the availability of an acceptable quantity and quality of water for health, livelihoods, ecosystems and production, coupled with an acceptable level of water-related risks to people, environment and economies” [Grey and Sadoff 2007]
Food Security: “when all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life” [WHO 1996]
Energy Security: “the uninterrupted physical availability [of energy] at a price which is affordable, while respecting environment concerns” [IEA 2011]
Water
WaterSecurity
FoodSecurity
EnergySecurity
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 11
Conflicts-of-use - Water security challenges
BBC News
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 12
Conflicts-of-use over water?
Hydro-diplomacy?
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13
"Water knows no frontiers; as a common resource it demands international cooperation”Principle XII of the European Water 1967
“Fierce competition for freshwater may well become a source of conflict and wars in the future.” (Annan, 2001)
“But the water problems of our world need not be only a cause of tension; they can also be a catalyst for cooperation [...] If we work together, a secure and sustainable water future can be ours.” (Annan, 2002)
Water knows no frontiers
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 14
Platform for Cooperation = The Law of Nations
“to maintain international peace and security … and ... the fundamental freedoms of all … “
UN Charter
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 15
International Water Law / Law of Nations
Law of nations
Rule of law
Water security Hydro-solidarity
Transboundary waters
Hydro-diplomacy
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 16
Building Certainty: Legal Analytical Framework
Substantive RulesEquitable and
reasonable use
Implementation Procedural Rules
Institutional mechanisms Dispute avoidance
/settlement
Scope
Defines rights & responsibilities of users
Ensures compliance and accommodates changes
in circumstances
What uses?What waters?What users?
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 17
Building Certainty: Legal Analytical Framework
Key Elements Details
1. Scope • Legal reach (what waters?)• Definitions (watercourse; uses)• Parties (States; RIEOs)
2. Substantive Rules • Legal duties & entitlements (equitable and reasonable utilisation; due diligence; protection)
• Rules of substance (general or precise)
3. Procedural Rules • Rules of procedure (duty to cooperate as bridge)• Notification / exchange of information
4. Institutional Mechanisms
• Joint bodies (RBOs)• Conference of the Parties (MoP)• Organisations / organs (Ministerial level; other)
5. Dispute Settlement • Dispute avoidance (consultation)• Dispute settlement (Art. 33 UN WC; other)• Compliance verification (reporting; facilitation)
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18
1. Uncertainty2. Increased
water stress in all sectors
3. Impact of external forces
• High uncertainty:– flow of the Nile– Projected rainfall patterns &
influence of complex water management and water governance structures
– Impact of sea-level rise– Temperature rises impact
with decreasing crop water-use efficiency
– Other++
Climate change impacts on the Nile (IPPC)
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19
Climate Change – addressing uncertainties
Uncertainty- Climate change++
Certainty - Legal
framework
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 20
Treaty / customary law:1. Substantive rules
(equitable and reasonable utilisation)
2. Procedural rules (duty to notify and exchange information)
3. Institutional Mechanisms (remit)
Building certainty: Rule of Law
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 21
Rule of law: Universal Treaty: 1997 UN WC
• 1997 UN Watercourses Convention (AFW)
– Scope: Art 1– Substantive rules: Art 5-7, 10– Procedural rules: Art 8, 9, 11-19– Institutional mechanisms: Art 8, 24– Dispute resolution: Art 33
• Evolution from both customary and treaty law – Identifiable corpus of substantive and procedural
rules (codification and progressive development)
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 22
Art. 5 UNWC - Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal utilization thereof and benefits therefrom consistent with adequate protection of the watercourse.
Art. 7 UNWC - 1. Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.2. Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.
Substantive Rule: Equitable and Reasonable Use
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 23
Art. 6 UN WC - Factors relevant to equitable and reasonable utilization1.Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;(b) The social and economic needs of the watercourse States concerned;(c) The population dependent on the watercourse in each watercourse State;(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;(e) Existing and potential uses of the watercourse;(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;(g) The availability of alternatives, of comparable value, to a particular planned or existing use.
Art. 6 (2) In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.
3.The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.
Implementing the Rule of Law
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 24
Art. 5(2) UNWC - Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner.Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present articles.
Art. 8 UN WC General obligation to cooperate - Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse
Duty to Cooperate – the BRIDGE
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 25
“…cooperative action by watercourse States is necessary to produce maximum benefits for each of them, … In short, the attainment of optimal utilization and benefits entails cooperation between watercourse States through their participation in the protection and development of the watercourse.” UN WC commentary
Substantive• shall cooperate
Procedural• cooperative actions
Dynamic Cooperation in practice
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 26
1. Substantive Rules-- equitable and reasonable
utilisation
2. Procedural Rules-- exchange information -- duty to notify-- procedures for planned
measures
3. Institutional Mechanisms
-- River basin organisation
Dynamic Cooperation on the Nile
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 27
The only thing that will redeem mankind is cooperationBertrand Russell
Addressing Water Security: Dynamic Cooperation
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 28
• We should view every regional watershed or aquifer as an opportunity for stronger international cooperation.
• Access to reliable supplies of clean water is a matter of human security. It’s also a matter of national security.
• There could be huge political and economic benefits from regional water diplomacy.
• Water is actually a test case for preventive diplomacy.
5 streams of action1. Capacity development (local,
national, regional)2. Elevate diplomatic efforts and
we need to better coordinate them
3. Mobilizing financial support4. Harness the power of science
and technology5. Broadening the scope of our
partnerships
Dynamic Cooperation: streams of action
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 29
Context for Adaptive Governance
Human
National
Regional
Int’l / Global
Politi
cal
Econ
omic
Soci
etal
Envi
ronm
enta
l
Scal
e
Disciplinary Interface
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 30
Governance and Dynamic Cooperation
Substantive rules
Procedural rules
Institutional mechanisms
1. accountability2. participation3. predictability4. transparency
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 31
Dynamic Cooperation in practice: H20
H• Hydro-
diplomacy
H• Hydro-
solidarity
O• Opinio
Juris
The H20 paradigm
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 32
Adaptive Governance Framework
• UN Charter• Treaty• Custom
Rule of law
• Structure• Mandate• Authority
Institution• Exchange
information• Notify• Process
Procedure
Dynamic Cooperation
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 33
Building Hydro-diplomacy - capacity tower
Water security
Regional & Global
National Capacity
Local Water Leaders
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 34
Addressing transboundary challenges
1. Dynamic Cooperation: rule of law --substantive rules + procedural rules + institutional mechanisms
2. Enhanced local capacity: local water leaders3. Communities of action: hydro-diplomacy +
hydro-solidarity approach
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 35
Invitation to Scotland as a Hydro-Nation
THANK YOU !Dundee
UNESCO Centre for Water Law, Policy & Science
Thank you!
www.dundee.ac.uk/waterp.k.wouters@dundee.ac.uk
www.glasgow2015.org