Water conventions

International Water Law: sense or no(n)-

sense?Lesha Witmer, independent consultant on water

governance

intern. water law-webinar-March2016-LW 2

Are you aware of and/ or using International treaties on fresh water?

no idea; do not know (how) this is related to Dutch water policySure, but not related to my work (I think)Important for me re. to discussions on transboundary

cooperation


International law on Water• Convention on the Law of the Non-navigational Uses of

International Watercourses (Watercourses Convention/ UNWC) (New York, 1997 – 36 parties). NL is party since 2001.

• The (UNECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention/ ECEWC)www.unece.org/env/water/status (1992 Helsinki - Global since 2015 – 41 parties). NL is Party since 1995.

• The UNECE-WHO/Europe Protocol on Water and Health: protect human health and well being by better water management and by preventing, controlling and reducing water-related diseases; sound framework for implementation of the human rights to safe water and sanitation. (1999 London- 26 parties). NL is Party since 2009.

http://www.unece.org/env/water/status

4Party to UNECE Water Convention (1992)

Party to UN Watercourses Convention (1997)

Party to both Conventions

intern. water law-webinar-March2016-LW


Status of Governance of Transboundary Basins- > 60% of transboundary basins do not

have agreements-80% of existing agreements are bilateral/don’t necessarily involve all basin states-Many agreements do not:

Provide for regular data-sharing/ notification Establish water allocation & benefit-sharing criteria/processesContain dispute prevention/settlement rules Apply to entire river basin / aquifer system, etc. 5


The principles• "doctrine of absolute sovereignty" is often initially claimed by an upstream riparian/ Harmon Doctrine: a state

has absolute rights to water flowing through its territory - never implemented in any water treaty (with the rare exception of some internal tributaries of international waters), was not invoked as a sources for judgment in any international water legal ruling, and was explicitly rejected by the international tribunal over the Lac Lanoux case in 1957. The Harmon Doctrine is wildly over-emphasized as a principle of international law.

• The down-stream extreme claim often depends on climate. In a humid watershed, the extreme principle advanced is "the doctrine of absolute riverain integrity," every riparian is entitled to the natural flow of a river system crossing its borders. This principle has reached acceptance in the international setting as rarely as absolute sovereignty.

• These conflicting doctrines of hydrography and chronology clash along many international rivers, with positions usually defined by relative riparian positions. Down-stream riparians, such as Iraq and Egypt, often receive less rainfall than their up-stream neighbors and therefore have depended on river-water for much longer historically.

• modern "rights-based" disputes often take the form of upstream riparians such as Ethiopia and Turkey and Guatamala arguing in favor of the doctrine of absolute sovereignty, with downstream riparians taking the position of historic rights (Egypt).

• Both conventions: "doctrine of limited territorial sovereignty" reflects rights to reasonably use the waters of an international waterway, yet with the acknowledgment that one should not cause harm to any other riparian state.

Both main principles are in the conventions: "reasonable and equitable use," and the obligation not to cause "significant harm“ (slightly more emphasized in ECEWC).

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Key differences between both Conventions

• UNECE WC covers surface water or groundwater•UNWC only surface water and connected groundwater

•UNECE WC stronger obligation to enter into basin-specific agreements and joint institutional arrangements•More detailed procedural requirements under UNECE WC

•UNWC more detailed on notification, and equitable and reasonable utilization factors

•UNECE WC includes institutional framework (MoP, secretariat, etc)•No institutional framework under the UNWC

•More detailed provisions in one instrument can inform the other!



International law on Water• UNECE WC Protocol on Civil Liability and Compensation (not in

force)• (draft) Articles on the Law of Transboundary Aquifers: adopted

2008 as “ guidance” – up for discussion on status November 2016 – no treaty yethttps://documents-dds-ny.un.org/doc/UNDOC/LTD/N13/556/85/PDF/N1355685.pdf?OpenElement

• ‘human right to sanitation’ AND ‘human right to safe drinking water’, resolution UNGA 17 December 2015 (A/C.3/70/L.55/Rev.1) www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.55/Rev.1 NL sponsored this resolution. Agreed by consensus.

https://documents-dds-ny.un.org/doc/UNDOC/LTD/N13/556/85/PDF/N1355685.pdf?OpenElement



http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.55/Rev.1

http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.55/Rev.1


Related conventions and agreements:• (UNECE) Convention on Environmental Impact Assessment in a Transboundary

Context (ESPOO) (1991 – 45 parties; global since 2014). NL is party since 1995.• Convention on Access to Information, Public Participation in Decision-Making and

Access to Justice in Environmental Matters (Aarhus convention) (1998 – parties; http://www.unece.org/env/pp/introduction.html). NL is party since 2004.

• Convention on Biological Diversity (CBD) (1992 – 196 parties; https://www.cbd.int/information/parties.shtml). NL is party since 1994.

• United Nations Convention to Combat Desertification (UNCCD) (1994 – 194 parties; http://www.unccd.int) . NL is a party since 1995.

• United Nations Framework Convention on Climate Change (UNFCCC) (1992 – 196 parties; http://unfccc.int/). Nl is a party since 1993.

• Convention on Wetlands (Ramsar Convention). (Ramsar 1971 – 169 parties). NL is a party since 1980.

https://www.cbd.int/information/parties.shtml



http://unfccc.int/

http://unfccc.int/

How does it connect to SDG targets• 6.5 By 2030, implement integrated water resources

management at all levels, including through transboundary cooperation as appropriate

• 6.6 By 2020, protect and restore water-related ecosystems, including mountains, forests, wetlands, rivers, aquifers and lakes

• 11.5 By 2030, significantly reduce the number of deaths and the number of people affected and substantially decrease the direct economic losses relative to global gross domestic product caused by disasters, including water-related disasters, with a focus on protecting the poor and people in vulnerable situations 10


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WHY RATIFY the Global conventions? Foster a common language and shared understanding >>

cooperation(systematic; interpretation)Principles of international law/ cooperation

• Makes for a complete set of laws at various levels on protection and enhancement of water quality, water quantity and the infrastructure for international watercourses

• general obligation to protect and maintain the ecosystems of international watercourses also in other treaties.

Harmonization even within countries / between basins with same riparians; can help to implement multiple agreements in a coordinated fashion

Can assist in improving existing basin or bi-lateral agreements (or set the stage for one)

Conventions can facilitate negotiations (agenda & procedure available)Contribute to MDGs and now SDGsStimulate cooperation among countries and involvement of stakeholders at large


Improving the governance of transboundary water resources, at all levels

UN Watercourses convention, convention on biodiversity, RamSAR convention, UN Convention on desertification

Agreements on Rhine, Danube, Dniester, Senegal, Niger, Nile, Mekong, etc.

Congo, Sava

Rights to safe water & sanitation

Global

Regional

Basin

Community, individual

SADC Protocol, EU WFD & directives, UNECE Water Convention (initially), Espoo (Initially) I & Aarhus

Sub-basin

12intern. water law-webinar-March2016-LW


Why did/ DO countries accede to the conventions?

• Water security high priority• You cannot do it alone – cooperation needed• Strengthens ‘transboundary water’ profile at the global level, and

fosters synergies with other global initiatives, e.g. climate change• Permanent framework for the continuity and sustainability of

cooperation• Sets the agenda

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Why did/ DO countries accede to the conventions?

• In line with international water law and other treaties• Makes for a complete set of laws at various levels on protection and

enhancement of water quality, water quantity and the infrastructure for international watercourses

• General obligation to protect and maintain the ecosystems of international water courses also in other treaties.

• Solidarity, development cooperation• Risk mitigation/ prevention• Conflicts resolved > framework for the future, conflicts resolution

mechanisms• To get everybody at the table; Common language/ understanding

Do we need more global “legislation”?

• Rivers and lakes do not respect political boundaries – indeed, they are often the basis of them.

• What mechanisms exist to prevent water from being held, diverted, or polluted by one country to the disadvantage of others?

• Which are the procedures or frameworks for considering claims or resolving disputes over transboundary water resources?

• Three quarters of the world’s countries face potential disputes with neighbours over shared rivers, lakes, wetlands or aquifers 15


WHY promote the conventions? Why do we need global

“legislation”?National laws do not provide for “across the river”Harmonization even within countries / between

basins with same riparians; States struggle to implement multiple agreements in a coordinated fashion

National laws e.g. non-existent, outdated Fix gaps in existing agreements e.g. notification and

conflict resolution (examples, Mekong, GERD dam etc.)

Stimulate cooperation among countries and involvement of stakeholders at large 16


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WHY promote the water conventions?

Water sometimes the “missing link”Complement other treaties/

conventionsCan support climate change

adaptationKnowledge and information

exchangeAccountability & transparency: clear

responsibilities and rights and incorporate other stakeholders


Prevent Potential conflict• Development related Disputes (state and non-state actors): where water resources or water systems are a major source of contention and dispute in the context of economic and social development

• Control of Water Resources (state and non-state actors): where water supplies, hydropower or access to water is at the root of tensions

• Political Tool (state and non-state actors): where water resources, or water systems themselves, are used by a nation, state, or non-state actor for a political goal

18intern. water law-webinar-March2016-LW

Conventions and Hydropower

potential for water to become a source of serious conflict within and between countriesConventions offer: • An effective system of notification, consultation and data exchange as basis for

states to communicate, reconcile any competing interests over planned uses of an international watercourse in a mutual manner and dispute resolution tools and procedures;

• Provide an (additional) framework and incentives for investors to adhere to the Equator principles (http://www.equator-principles.com/) and the World Commission on Dams guidance (http://www.unep.org/dams/WCD/) ; and

• Stimulate the use of assessment tools such as those provided for by the Hydropower Sustainability Assessment Protocol (2011 http://www.hydrosustainability.org/Protocol.aspx): measure and guide sustainability in hydropower planning, implementation and operations

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http://www.equator-principles.com/

http://www.equator-principles.com/

http://www.unep.org/dams/WCD/

http://www.unep.org/dams/WCD/

http://www.hydrosustainability.org/Protocol.aspx


WHY

Water is “ Local” – yes – but guidance and common frameworks needed – we are all in the hydrological cycle: http://thewaterooms.org/the-hydrological-cycle/ (Watch)

Foster a common language and shared understanding >> cooperation

Facilitate negotiations (agenda & procedures available)Need to harmonize between and in countriesNo good (technical) work can be done sustainably on

environment and eco systems without good water management and enabling legal frameworks

Contribute to and guidance for SDGs especially goal 6.5 and 6.6 implementation

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http://thewaterooms.org/the-hydrological-cycle/

http://thewaterooms.org/the-hydrological-cycle/


Relation between Dutch policy and international water law:

I do not see itDid not know it could be that useful; going to check what my

unit is doing on thisWow, have to look into this some more very clear; using it


Dutch policy/ priorities

• water management, improved river basin management and safe deltas;• The Netherlands is also focusing on transborder water management in 7

international river basins in Africa, Asia and the Middle East. Its aim is to promote cooperation between upstream and downstream countries

• SDG implementation (plans)>> water diplomacy (NL candidate for security council)


NL direct involvement• Delta coalition https://

www.facebook.com/NLGlobalissues/posts/529407553903757 • Lead country on: (UNECE) Task Force on Water and Climate and the core

group of pilot projects on adaptation to climate change in transboundary basins - Adapting to climate change in transboundary basins (IenM)

• Chair Informal consultations on UNWC: “ The Hague group”; countries party to both UNWC and ECEWC (IGG and IenM)

• Member European Union Water Initiative coordinating committee (DGIS)http://capacity4dev.ec.europa.eu/euwi-community-space/minisite/about-euwi

• Development cooperation programs for transboundary basins

https://www.facebook.com/NLGlobalissues/posts/529407553903757

https://www.facebook.com/NLGlobalissues/posts/529407553903757

http://capacity4dev.ec.europa.eu/euwi-community-space/minisite/about-euwi

http://capacity4dev.ec.europa.eu/euwi-community-space/minisite/about-euwi


Resources:

• http://www.panda.org/unwc • http://www.unece.org/fileadmin/DAM/env/water/publications/WA

T_Guide_to_implementing_the_WC/ECE_MP.WAT_39_Guide_to_implementing_water_convention_small_size_ENG.pdf

• http://www.unwatercoursesconvention.org/• http://www.transboundarywaters.orst.edu/database/• http://www.un.org/waterforlifedecade/water_cooperation.shtml

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http://www.panda.org/unwc

http://www.unece.org/fileadmin/DAM/env/water/publications/WAT_Guide_to_implementing_the_WC/ECE_MP.WAT_39_Guide_to_implementing_water_convention_small_size_ENG.pdf



http://www.unwatercoursesconvention.org/

http://www.transboundarywaters.orst.edu/database/

http://www.un.org/waterforlifedecade/water_cooperation.shtml


Resources

• http://www.un.org/waterforlifedecade/transboundary_waters.shtml

• http://www.internationalwaterlaw.org/blog/category/un-watercourses-convention/

• http://www.siwi.org/knowledge-services/transboundary-water-management/

• http://www.thehagueinstituteforglobaljustice.org • http://www.unitar.org/event/introduction-water-diplomacy 25

http://www.un.org/waterforlifedecade/transboundary_waters.shtml

http://www.un.org/waterforlifedecade/transboundary_waters.shtml

http://www.internationalwaterlaw.org/blog/category/un-watercourses-convention/

http://www.internationalwaterlaw.org/blog/category/un-watercourses-convention/

http://www.siwi.org/knowledge-services/transboundary-water-management/

http://www.siwi.org/knowledge-services/transboundary-water-management/

http://www.thehagueinstituteforglobaljustice.org/

http://www.unitar.org/event/introduction-water-diplomacy


Resources

• http://www2.worldwater.org/conflict.html• http://www.ramsar.org/cda/en/ramsar-home/main/ramsar/1_4000_0

(RAMSAR)• http://www.transboundarywaters.orst.edu/database/ • http://www.unece.org/env/eia/eia.html (ESPOO)

“The UN Water Courses Convention in force”, Earth scan ISBN 978-1-84971-446-4 (2013)

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http://www.transboundarywaters.orst.edu/database/

http://www.unece.org/env/eia/eia.html

Date post:	17-Feb-2017
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Water conventions

Education