INTERNATIONAL WATER LAW AND GOVERNANCE Juan Carlos Snchez

INTERNATIONAL WATER LAW AND GOVERNANCE Juan Carlos Sánchez Environmental Law Centre International Union for the Conservation of Nature (IUCN) UNION INTERNACIONAL PARA LA CONSERVACION DE LA NATURALEZA

Transboundary river basins of the world Source: twap-rivers. org 2

A legal problem with multiple angles 6 O % of the world’s transboundary basins lack any type of cooperative management framework 3

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DEFINITIONS OF CONFLICT Unfortunate situation with difficult solution Fight / dispute CONFLICT Armed hostilities between States Problem / issue Two or more persons perceive their values and needs as being incompatible 5

Potential conflicts due to diverging water uses and users 6

Conflict and Cooperation Management • TWINS (Nexos de interacción transfronteriza) como un medio para entender la coexistencia del conflicto y la cooperación, Mirumachi (2015) LOW CONFLICT / LOW COOPERATION HIGH CONFLICT / LOW COOPERATION LOW CONFLICTO / HIGH COOPERATION HIGH CONFLICTO / HIGH COOPERACIÓN Zeitoun and Mirumachi 2008: 302 7

Power and Cooperation • Hegemony of countries with capacities and resources to determine what is equitative • Controle how water resources are distributed and their associated benefits • Hegemony through economic power and technical capacity to negotiate 8

Hydrohegemony To understand power dynamics is crucial to avoid the so called hydrological determinism, according to which upstream countries control downstream countries (or… more powerful countries exert control over a region or a resource) International Water Law is a mean to level the playfield and reduce the assimetries of the hydrohegemonic power 9

The role of International Water Law • Culture of communication • Language of cooperation • Provides the rules and principles, as well as procedures for dialogue, negotiations and consultations • Without these premises is difficult to avoid conflicts 10

International Architecture for Transboundary Governance: A fragmented system Global Architecture UN Watercourses Convention (in force) MEAs (Biodiversity, Climate Change, Ramsar, Desertification) Customary international law (basic principles) Regional SADC Protocol UN ECE Watercourses Convention “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 noninclusion of important riparian States)” (UN-Water, Transboundary Waters: Sharing Benefits, Sharing Responsibilities, Thematic Paper, 2008) EC Water Framework Directive Basin & Subbasin 400+ treaties signed since 1820 158 basin lack cooperative management framework Majority of treaties bilateral National and sub-national Slide | 11

Global water law framework • 19 th May 2014 Viet Nam acceded to the UN Watercourses Convention and became the 35 th State to join • The Convention entered into force on the 17 th August 2014 • Entry into force of this Convention represents a significant milestone in the development of International Water Law • Global opening of the UNECE Water Convention • Global instruments strengthen transboundary governance arrangements around the world 12

Current Status (Jan 2016) • • • 13 UNWC: 37 parties – in force since 17 August 2014 UNECE Water Convention: 41 Parties Both Conventions: 15 > 61 countries ratified at least one of them Water & Health Protocol: 26 RAMSAR: 168

Status of the UNWC • • • 14 Benin Burkina Faso Chad Cote d’Ivoire Denmark Finland France Germany Greece Guinea-Bissau Hungary Iraq • • • Ireland Italy Jordan Lebanon Libya Luxembourg Montenegro Morocco Namibia Netherlands Nigeria • • • Norway Portugal Qatar South Africa Spain State of Palestine Sweden Syrian Arab Republic Tunisia United Kingdom Uzbekistan Vietnam

Status of the UNWC 15

Party to UNECE Water Convention (1992) Party to UN Watercourses Convention (1997) Party to both Conventions

Legal Analytical Framework 17

UN Watercourses Convention and the UNECE Water Convention • Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourse Convention) – Scope: a system of surface waters and groundwater constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus; parts of which are situated in different States (Art. 2 (a) (b)) • Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE) – Scope: any surface or ground waters which mark, cross or are located on boundaries between two or more States • Scope of Transboundary Waters – Surface water or groundwater (Art 1(1), UNECE WC) – Surface water and connected groundwater (Art 2(a), UNWC) – Nb: 2008 ILC Draft Articles on Transboundary Aquifers 18

Legal Analytical Framework 20

Substantive norms Equitable and reasonable utilisation • Takes competing interests as starting point and seek to reconcile different uses No significant harm Protection of Ecosystems 21 • Takes transboundary impact as a starting point and seek to minimise harm • Takes maintenance of ecosystem as a starting point and share benefits

Article 5(1): Equitable and reasonable utilization 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 and sustainable utilization thereof and benefits therefrom taking into account the interests of the watercourse States concerned consistent with adequate protection of the watercourse. 22

Balancing of factors and circumstances* • What? – Physical characteristics § Geographic, hydrological, climatic • Who? – Population dependency § Present and projected • What uses? – Existing and potential social and economic uses • What impacts? – Effects of a water use on other watercourse States • What options? – Efficiency of and alternatives to uses of a watercourse *Based on Art. 6 UN Watercourses Convention/ Art. 3 Revised SADC Protocol 23

No significant harm • Watercourse States prohibited from activities that cause significant harm to other watercourse States • What constitutes ‘harm’? – Detrimental impact of some consequence upon the environment or the socio-economic development of another State – Public health, industry, property or agriculture • What is ‘significant’ – More than merely perceptible or trivial – Determined on a case-by-case basis 24

A due diligence standard • Art 7(1), UN Watercourses Convention – “Watercourse States shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm” – A diligence proportioned to § the magnitude of the subject § the capacity of State – Has a very strong procedural component 25

Appropriate measures? • Art 3, UNECE Water Convention – Legal, administrative, economic, financial and technical measures § § § § § 26 Low- and non-waste technology for point-source pollution Prior licensing of waste-water discharges Monitoring and control of authorised discharges Biological treatment or equivalent applied to municipal waste water Appropriate measure, incl best available technology, adopted to reduce nutrient inputs from industrial and municipal sources Reduction of nutrient and hazardous substances from diffuse sources, through best environmental practices Environmental impact assessment and other means of assessment applied Contingency planning development Specific measures taken to prevention groundwater pollution Risk of accidental pollution is minimised.

Protection of ecosystems • Art 20, UN Watercourses Convention – “Watercourse States shall, individually and, where appropriate, jointly, protect and preserve the ecosystems of an international watercourse” • Art 10, 2008 Draft Articles on Transboundary Aquifers – “…ensure that the quantity and quality of water retained in an aquifer or aquifer system, as well as that discharged through its discharge zones, are sufficient to protect and preserve such ecosystems” • Inherent requirement of equitable and reasonable utilisation? – Art 5(1), UN Watercourses Convention § “Adequate protection of the watercourse” – Art 5(2), UN Watercourses Convention § “Watercourse states shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation including both the right to utilise the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention. 27

Legal Analytical Framework 28

Procedural rules in the UNWC Strong emphasis on process and cooperation • Equitable participation • Duty to cooperate • Regular exchange of data and information • “Where appropriate, jointly…” - Protect and preserve the ecosystems of international watercourses - Prevent or mitigate conditions that may be harmful to other watercourse States, whether resulting from natural causes or human conduct, such as flood or ice conditions, water-borne diseases, siltation, erosion, salt-water intrusion, drought or desertification 29

Key procedural mechanisms under international law • Notification and consultation • Environmental impact assessment • Exchange of data and information • Joint monitoring • Stakeholder participation 30

Notification and consultation • Art 11, UN Watercourses Convention – “Watercourse States shall exchange information and consult each other and, if necessary, negotiate on the possible effects of planned measures on the condition of an international watercourse” • Art 4(1), Revised SADC Protocol • Art 7(5), ORASECOM Agreement 31

Notification and consultation • When to notify? – ‘Timely’ – sufficiently early in the preliminary planning stages to permit meaningful consultation and negotiation • What data and information should states share? – ‘Available technical data and information’ • As developed in relation to the proposed use and readily accessible – What about transboundary aspects? – What if certain elements missing, e. g. land, water, living resources interactions)? – How to access local/traditional knowledge across borders 32

No notification option Notification mechanisms State B request to apply Art. 12 State A justifies no notification to State B Planned Measure by State A Proceed Timely notification to State B 33 Consultation

Notification: Key provisions under the UNWC • Duty to exchange information and consult others on the possible effects of planned measures (Article 11 ) • Duty to notify and provide technical data and information before the implementation of a project (Article 12) • Period of 6 months to evaluate the possible effects- can be extended (Article 13) • Application of good faith (Aricle 14) • If requested, duty to provide further info during the consulation period • Duty not to implement or permit the implementation of the project without consultation and negotiation to arrive at equitable resolution of the problem (Article 17) • Possibility to proceed with project implementation without consent in cases of public health, public safety and the protection of equally important interests (Article 19) 34

Environmental impact assessment • Share available data and information, – ‘including the results of any environmental impact assessment’ (Art 12, UNWC) • Transboundary EIA a requirement? – Obligation to take all appropriate measures to prevent significant harm – Pulp Mils case ICJ suggested transboundary EIA part of customary international law 35

Legal Analytical Framework 36

Institutional Frameworks • Entities responsible management of waters for the • These may take different names such as agencies, commissions, committees, authorities, administrations, departments, etc. • ‘Might encompass not only formal organizational arrangements, but less formal meetings between the appropriate agencies or other representatives of the States concerned. ’ (ILC) 37 Legal Instruments Cooperation Institutions Policies

Joint institutional arrangements Article 24, UN Watercourses Convention (1) Watercourse states shall, at the request of any of them, enter into consultations concerning the management of an international watercourse, which may include the establishment of a joint management mechanism. (2) For the purposes of this article, “management” refers, in particular, to: (a) planning the sustainable development of an international watercourse and providing for the implementation of any plans adopted; and (b) otherwise promoting the rational and optimal utilisation, protection and control of the watercourse. 38

Institutional arrangements under the UNWC • The implicit need for institutional arrangements 39 Equitable participation (Art. 5(2)) Determination of what is equitable and reasonable (Art. 6) Take appropriate measures not to cause harm (Art. 7) General obligation to cooperate (Art. 8) Regular exchange of data and information (Art. 9) Planned measures (Arts. 11 -19) Protect and preserve the ecosystems (Art. 20) Pollution prevention and preservation (Art. 21) Introduction of alien species (Art. 22) Protect and preserve the marine environment (Art. 23) Regulation of flow (Art. 25) Maintenance and protection of installations (Art. 26) Prevent and mitigate harmful conditions (Art. 27) Contingency plans & mitigation/elimination of emergency situations (Art. 28) Protect and preserve the marine environment (Art. 23) Settlement of disputes (Art. 33)

Comparing the Conventions: Similarities • Protection, preservation and management of international watercourses (UNWC & UNECE WC) • A ‘package of norms’ approach to substantive norms – equitable and reasonable utilization – due diligence obligation of no-harm • Principle of cooperation as catalyst for the implementation of the two substantive norms • Almost same provisions with regard to dispute settlement 40

Comparing the Conventions: Differences Two Conventions provide a stronger package of norms § Future agreements and joint bodies – Obligation to create (Art 9(1)&(2), UNECE WC) – Recommendation to create (Art 8(2) & 24), UNWC) • Scope of Transboundary Waters – Surface water or groundwater (Art 1(1), UNECE WC) – Surface water and connected groundwater (Art 2(a), UNWC) – Nb: 2008 ILC Draft Articles on Transboundary Aquifers • Transboundary EIAs and public information § Explicit obligation (Art 9(j) and Art 16, UNECE WC) § Implicit obligation (Art 7, UNWC)/ no provision 41

Comparing the Conventions: Differences More detailed provisions in one instrument can inform the other • Appropriate measures to prevent harm – Detailed guidance under UNECE WC on appropriate measures (eg, Art 3, UNECE WC) • Equitable and reasonable § List of factors (Art 6, UNWC) can guide implementation UNECE WC • Exchange of information & planned measures § Obligation under both Conventions (Art 13 UNECE WC, Art 9, UNWC) § Generally more detailed under UNECE WC, although developed provisions on planned measures under Part III of the UNWC 42

Why the need for global framework instruments? • Supports several scenarios – Where no specific legal and institutional arrangement exists at the basin level, i. e. in more than 60% of all basins – Where weak legal and institutional arrangements exist at the basin level, e. g. many agreements to not provide for regular datasharing, contain dispute settlement provisions etc. – Where not all basin states are party to a basin agreement, ie in more than 80% of basins • Support ≠ replace • Fosters harmonisation between basins and regions • Consolidates, clarifies and develops customary international law • Strengthen implementation, e. g. through a platform for sharing experiences and good practice • Strengthens ‘transboundary water’ profile at the global level, and fosters synergies with other global initiatives, eg climate change

Why accede to the Conventions? • Permanent framework for the continuity and sustainability of transboundary cooperation over waters • Foster a common language and shared understanding >> cooperation (systematic; interpretation) • Harmonization even within countries / between basins with same riparians; can help to implement multiple agreements in a coordinated fashion • Conventions can facilitate negotiations (agenda & procedure available) • Stimulate cooperation among countries and involvement of stakeholders • Contribute to SDGs and can support climate change adaptation Particularities of UNECE Water Convention • An intergovernmental platform for sharing experiences and good practice • Supports capacity building and strengthens implementation • Developed a legal regime through protocols, soft law instruments, etc. 44

Thank you for listening! 45