Monday, May 12, 2008

The UN Watercourses Convention:

Why Should CSD Promote its Entry into Force and Implementation?

The GPPN paper on emerging issues identifies “transboundary waters” as a key topic requiring more attention under CSD and highlights poor governance and interstate disputes as interrelated threats to the management of international watercourses. The paper also underlines the importance of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses for improving transboundary water governance and calls on CSD to urge states to accede to and implement that convention.

By: Flavia Loures, Freshwater Programme Officer, International Water Law and Policy, World Wildlife Fund US

The UN General Assembly adopted the Convention in 1997, with approving votes of more than 100 nations and 38 sponsoring states. The Convention establishes a framework for interstate cooperation on the use, management, and protection of international watercourses for present and future generations. Under the Convention, states must utilize international watercourses in an equitable and reasonable manner, consistent with their protection, with the goal of optimal and sustainable use, while giving special regard to vital human needs and taking into account the interest of all watercourse states. Counting today 16 contracting states, the Convention requires 35 parties for coming into force.

International governance of transboun-dary waters: Governing international watercourses only at the regional, basin, and sub-basin levels has not been sufficient to ensure good water governance. The UN Watercourses Convention: Objectives and Functions: The Convention was adopted to promote the successful codification and progressive development of the rules and principles of customary law governing international watercourses, with a view to fostering international peace and security, and addressing the problems of mismanagement and overuse of shared water resources.

Customary law is a body of un-written binding principles that emerge from state practice through time. States comply with such principles due to widespread acceptance of their legal status. Customary international water law is today the only global legal framework governing interstate relations regarding international watercourses. Customary law, however, is often vague, contested, unclear, and can only be enforced through treaties. Customary law alone cannot serve as the global link in the governance structure for transboundary waters.

The Convention offers a clear, more stable global framework for cooperation. Once in force, the convention will be enforceable through its dispute prevention and settlement mechanisms. The Convention codifies (or incorporates) customary law principles, such as the duty to notify before major planned measures. The Convention also clarifies the content, scope, and extent of those principles, e.g., by stating a data-sharing obligation and specifying the nature of the information to be exchanged. Finally, the Convention contributes to the progressive development of customary law, i.e., it incorporates principles not yet established as custom, such as the requirement for states to act jointly when necessary to protect aquatic ecosystems.

As an instrument codifying and progressively developing customary law, the Convention has already influenced concrete situations, even though it is not yet in force. The Convention has served as a template of minimum standards for states to consult when drafting watercourse agreements. The Revised SADC Protocol and the Senegal Water Charter refer to the Convention in that sense. The Convention has also supported existing agreements. For example, in 1997, the International Court of Justice resorted to the Convention when deciding a dispute over the Danube. Similarly, in 2007, a state invoked the Convention in a dispute over the River Uruguay.

Once in force, the Convention will also govern international watercourses in the absence of applicable agreements, serving as a firm common ground, enforceable through dispute prevention and settlement mechanisms—something customary law cannot provide.

Box 3 explains how entry into force and non-entry into force of the Convention could affect the ‘codification and progressive development’ objective and the Convention’s influence for informing and supporting watercourse agreements, as well as its binding effects on interstate relations in the absence of agreements.

The Convention was drafted and adopted to be a solid, widely accepted global code, leveling the playing field among co-riparians, strengthening cooperation at all levels, and ensuring political stability in situations that might otherwise fuel conflict. The Convention has fulfilled those roles even before coming into force. However, if the Convention remains ineffective, its influence on states will progressively weaken while the problems that motivated its adoption remain largely unsolved.

The entry into force of the Convention is needed to address a major policy gap in the governance structure for shared waters. Once in force, the Convention will promote better, deeper, more widespread levels of cooperation. If the Convention remains ineffective, it will not gain binding effects for governing interstate relations in the absence of agreements and will become progressively less relevant and less likely to succeed in delivering on the job for which it was adopted.

WWF launched the UN Watercourses Convention Global Initiative in 2006 to inform and support the Convention’s entry into force and future implementation. Since then, many others stakeholders have joined our call for ratifications. Now, it is time for CSD to become involved and call on all UN members, especially those 106 who voted in favor, to fulfill their commitment to the 1997 UN General Assembly Resolution and become parties to the UN Watercourses Convention.