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The 1997 UN Watercourses Convention: a multi-level governance

perspective

Stockholm World Water Week Seminar“Strengthening Water Diplomacy in Transboundary Basins”

Dr Alistair Rieu-Clarke22nd August 2011

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 2

The global architecture for transboundary waters – a

fragmented system

The global architecture for transboundary waters – a

fragmented system

“Existing agreements are sometimes not sufficiently effective to promote integrated water resources management due to problems at the national and local levels such as inadequate water management structures and weak capacity in countries to implement the agreements as well as shortcomings in the agreements themselves (for example, inadequate integration of aspects such as the environment, the lack of enforcement mechanisms, limited – sectoral – scope and non-inclusion of important riparian States)” – (UN-Water, Transboundary Waters: Sharing Benefits, Sharing Responsibilities, Thematic Paper, 2008)

“Existing agreements are sometimes not sufficiently effective to promote integrated water resources management due to problems at the national and local levels such as inadequate water management structures and weak capacity in countries to implement the agreements as well as shortcomings in the agreements themselves (for example, inadequate integration of aspects such as the environment, the lack of enforcement mechanisms, limited – sectoral – scope and non-inclusion of important riparian States)” – (UN-Water, Transboundary Waters: Sharing Benefits, Sharing Responsibilities, Thematic Paper, 2008)

1997 UN Watercourses Convention: ProcessYear Event

1970 UN GA Resolution 2669 (XXV): ‘Fragmentation of international law’

1976 – 1994 15 ILC Special Rapporteur Reports, in additional to comments and observations by States

1991 ILC Draft Articles submitted to UN GA

1993 Replies from Government to Draft Articles

1994 Revised ILC Draft Articles submitted to UN GA

1996-1997 UN GA Sixth (legal) Committee to negotiate text of the Convention

1997 UN Watercourses Convention adopted by 38 sponsors, 103 votes in favour, 26 abstentions and 3 against

2011 24 Parties (need 35 for entry into force)

Decision to develop a

framework agreement

Decision to develop a

framework agreement

Significant evidence of a

shared understanding over the rules and principles

that governance international watercourses

Significant evidence of a

shared understanding over the rules and principles

that governance international watercourses

1997 UN Watercourses Convention: Content

Provides a transparent,

legitimate and predictable process by which states can

identify and reconcile their potentially

competing interests of transboundary

waters

Provides a transparent,

legitimate and predictable process by which states can

identify and reconcile their potentially

competing interests of transboundary

waters

How does a global legal framework instrument influence water diplomacy

at the basin/ national level?

How does a global legal framework instrument influence water diplomacy

at the basin/ national level?

AE Cascão and M Zeitoun, 'Power, Hegemony and Critical Hydropolitics' in A Earle, A Jägerskog and J Öjendal (eds), Transboundary Water Management - Principles and Practice (Earthscan London 2010), at 30.

AE Cascão and M Zeitoun, 'Power, Hegemony and Critical Hydropolitics' in A Earle, A Jägerskog and J Öjendal (eds), Transboundary Water Management - Principles and Practice (Earthscan London 2010), at 30.

International law, power and hydrodiplomacy

‘…downstream countries can … mobilise structural factors, such as the

codification of new legal ‘rules’ on watercourses to bring upstream

riparians to cooperate, and therefore acquire enhanced structural power’**

‘…downstream countries can … mobilise structural factors, such as the

codification of new legal ‘rules’ on watercourses to bring upstream

riparians to cooperate, and therefore acquire enhanced structural power’**

‘…basin bullies can be susceptible to the powers of persuasion, and may

be less likely to force an arrangement if they are held accountable to an objective

standard, or risk being ‘named and shamed’’.

‘…basin bullies can be susceptible to the powers of persuasion, and may

be less likely to force an arrangement if they are held accountable to an objective

standard, or risk being ‘named and shamed’’.

* M Zeitoun and A Jägerskog, 'Confronting power: strategies to support less powerful states' in A Jägerskog and M Zeitoun (eds), Getting Transboundary Water Right: Theory and Practice for Effective Cooperation (Stockholm International Water Institute Stockholm 2009), at 12. **M Daoudy, 'Hydro-hegemony and international water law: laying claims to water rights' 10 Water Policy 89 (2008).

* M Zeitoun and A Jägerskog, 'Confronting power: strategies to support less powerful states' in A Jägerskog and M Zeitoun (eds), Getting Transboundary Water Right: Theory and Practice for Effective Cooperation (Stockholm International Water Institute Stockholm 2009), at 12. **M Daoudy, 'Hydro-hegemony and international water law: laying claims to water rights' 10 Water Policy 89 (2008).

International law, power and hydrodiplomacy

Brunée, J. & Toope, S.J., “The Changing Nile Basin Regime: Does Law Matter?”, 43 Harvard Journal of International Law 105 (2002) Brunée, J. & Toope, S.J., “The Changing Nile Basin Regime: Does Law Matter?”, 43 Harvard Journal of International Law 105 (2002)

International law matters – water diplomacy in the Nile

context

Unresolved relationship between ‘equitable utilisation’ and ‘no significant harm’ leads to ‘irreconcilable positions’

Prior to adoption of 97 UN WC

Following adoption of 97 UN WC

‘The contradiction in the two fundamental principles has been effectively erased through their melding in the Watercourses Convention. As the most recent authoritative statement of international water law, the Convention has helped undermine the principles' capacity to structure opposing arguments.’

Following entry into force, widespread support

‘Of course, the influence of the traditional rules cannot be erased

overnight. Therefore, the new challenge to legitimacy will be to

foster social practices along the Nile that have the capacity to generate

adherence to emerging cooperative principles of water law…’

‘Of course, the influence of the traditional rules cannot be erased

overnight. Therefore, the new challenge to legitimacy will be to

foster social practices along the Nile that have the capacity to generate

adherence to emerging cooperative principles of water law…’


Strengthening water diplomacy in transboundary basins – what

contribution can the 97 UN WC make?

Strengthening water diplomacy in transboundary basins – what

contribution can the 97 UN WC make?

Regardless of entry into force


Why entry into force/ widespread support?

In ratifying a treaty a state incurs a political and legal ‘cost’ that demonstrates sincerity of belief. Such a process also usually results from some level of consultation, involving heads of state, government, parliament, etc.

Treaties reflect a State’s view of whether certain norms should be legally binding. If that practice is widespread and representative it can create customary international law even within a short time period.

International law matters

International law matters

States take an interest in what other states do, which has a knock on effect.

Entry into force could be a ‘tipping point’ for wider ratification.

Raises profile of (transboundary) water issues at the global policy and agenda-setting levels.

Cascade effect & global policy/

agenda setting

Cascade effect & global policy/

agenda setting

Strengthens what counts as persuasive argument within basin negotiations.

Levels the playing field between states.

Marginal groups within countries can hold a State to account based on objective standards.

International law & hydropolitics

International law & hydropolitics

Can act to supplement existing architecture where a) no agreement exists at the basin level; b) not all basin states are party to a particular agreement; and c) basin agreements only partially cover areas contained within the 97 UN Watercourses Convention.

Entry into force/ widespread support can act as a catalyst for treaty negotiation at the basin level.

Addresses fragmentation

Addresses fragmentation

What will entry into force/ widespread support take?

*Salman, SMA., ‘The United Nations Watercourses Convention Ten Years Later: Why Has its Entry into Force Proven Difficult?’, 32(1) Water International 1 (2007)


For more information

IHP-HELP Centre for Water Law, Policy & Science (under the ausipices of UNESCO), University of Dundee, Scotland, UK

• Dr Alistair Rieu-Clarke ([email protected])

• www.dundee.ac.uk/water/projects/unwcglobalinitiative/

World Wildlife Fund – Water Conventions

• Ms Flavia Loures ([email protected])• wwf.panda.org/what_we_do/how_we_work/

policy/conventions/water_conventions/un_watercourses_convention

THANK YOU!

Education

Stockholm