International Conventions on Water
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International Conventions on Water. Iulia Trombitcaia. Environmental Affairs Officer, UNECE. International Annual UN-Water Zaragoza Conference 2012/2013 Preparing for the 2013 International Year. Water Cooperation: Making it Happen! 8-10 January 2013
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International Conventions on Water
- 1. International Conventions on Water Iulia Trombitcaia, UNECE
- 2. Two framework multilateral instruments • 1997 Convention on the Law of the Non- navigational Uses of International Watercourses (UN Watercourses Convention, or New York Convention) • 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Water Convention, or Helsinki Convention)
- 3. 1997 UN Watercourses Convention • Adopted by UN General Assembly in 1997 on the basis of 1994 ILC Draft Articles – 3 decades, all continents • Voted in favor by 106 States • Global framework multilateral agreement • Strongly recognized as evidence of international customary law • Already influenced many agreements (SADC, Albufeira Convention, etc.)
- 4. 1997 UN Watercourses Convention • Not yet in force (6 ratifications missing), expected entry into force end of 2013-early 2014 • Ratified (29): Benin, Burkina Faso, Chad, Denmark, Finland, France, Germany, Greece, Guinea-Bissau, Hungary, Iraq, Italy, Jordan, Lebanon, Libya, Luxemburg, Morocco, Namibia, Netherlands, Nigeria, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syrian Arab Republic, Tunisia, Uzbekistan * in blue – also Parties to UNECE Water Convention
- 5. 1992 UNECE Water Convention • Negotiated in 1990-1992 through an intergovernmental process under the auspices of UNECE, largely relying on ILC Draft Articles process • Negotiated originally as regional instrument • Signed on 17 March 1992, in force on 6 October 1996 • Protocol on Water and Health adopted in 1999, entered into force in 2005 • Protocol on Civil Liability adopted in 2003
- 6. Status of ratification of the UNECE Water Convention 39 Parties (38 countries and the European Union) Parties Countries in accession Non Parties .
- 7. 2003 Amendment to the 1992 UNECE Water Convention • Opening up the Water Convention to all UN Member States => the Convention becomes a global instrument • Aims: - apply the principles and provisions worldwide - share the experiences of the Convention - learn from other regions of the world • Amendments enter into force 6 February 2013 • Possibility all UN Member States to accede from late 2013-early 2014 when all 2003 Parties ratify the amendments
- 8. 6th Meeting of the Parties to UNECE Water Convention (Rome, November 2012) • Unanimous decision of Parties to grant, once and for all, the approval to all future requests • 18 non-UNECE States participated • Iraq and Tunisia expressed their interest in joining the Water Convention as soon as possible
- 9. The two Conventions: compatibility • Two same substantive principles -equitable and reasonable utilization -due diligence obligation of no-harm • Principle of cooperation as catalyst for the implementation of the two substantive ones (specified in the obligations to notify, to consult, to exchange information, to enter into agreements and establish joint bodies, etc.) • Almost same provisions with regard to dispute settlement
- 10. The two Conventions: mutual complementarity Countless examples… * Factors to equitable and reasonable utilization (Art.6 of the Watercourses Convention) * Planned measures (Part III of the Watercourses Convention) * Consequences of occurrence of transboundary impact (Art.7(2) of the Watercourses Convention) * Content of specific agreements and tasks of joint bodies (Art. 9 of the Water Convention) * Water quality objectives and criteria and BAT (annexes of the Water Convention) * Information subject to exchange, and “joint assessments” (Art. 13 and 11 of the Water Convention)…
- 11. The two Conventions: what differences? • Few differences (confined groundwater not covered by Watercourses Convention; intellectual property limitation to exchange of information in UNECE Water Convention; obligation to adapt existing agreements to basic provisions in UNECE Water Convention) • One major difference: -Mandatory character of institutional cooperation between Riparian Parties in the UNECE Water Convention (recommendation in Watercourses Convention) -Institutional mechanism based on the Meeting of the Parties in the UNECE Water Convention (no such mechanism in Watercourses Convention)
- 12. 1992 Water Convention institutional mechanism • Meeting of the Parties • Bureau • Working Group on Monitoring and Assessment • Working Group on Integrated Water Resources Management • Task Force on Water and Climate • Legal Board • Implementation Committee • Joint ad-hoc Expert Group on Water and Industrial Accidents • International Water Assessment Center (IWAC) • Supported by UNECE secretariat 3-year work programmes: Protocols, guidelines, assessments, projects on the ground …
- 13. The two Conventions: the principle of harmonization “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, Report of the Study Group of the International Law Commission, 2006: “The principle of harmonization. It is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations”. Guide to Implementing the Water Convention, 2009: interpreting many of its provisions in light of the Watercourses Convention and the ILC Commentary
- 14. How will the two work together? Open and constructive discussion… •World Water Forum in Marseille (March 2012), Symposium in Dundee (June 2012), Rio +20 (June 2012), Meeting of the Parties to Water Convention (Rome, 2012) •Upcoming debate on the “water” SDG •New work programme of Water Convention for 2013-2015: -building synergies with NY Convention -role of the new Implementation Committee It is up to the Parties to decide.
- 15. Message by UN Secretary General Ban Ki-moon to the Meeting of the Parties to Water Convention (Rome, November 2012) “Soon the Convention on the Protection and Use of Transboundary Watercourses and International Lakes will become open for accession to all Member States. Your experience and the lessons you have learned will be invaluable. I encourage countries outside the UNECE region to join the Convention and contribute to its further development.”
- 16. Message by UN Secretary General Ban Ki-moon to the Meeting of the Parties to Water Convention (Rome, November 2012) “The globalization of the [Water] Convention should also go hand-in-hand with the expected entry into force of the United Nations Watercourses Convention. These two instruments are based on the same principles. They complement each other and should be implemented in a coherent manner.”
- 17. Intergovernmental bilateral Dniester Basin Treaty of the Republic of Moldova and Ukraine (Rome, 29 November 2012) – taking the best of the two Conventions
- 18. Thank you! UN Watercourses Convention/ILC: http://untreaty.un.org/ilc/summaries/8_3.htm UNECE Water Convention: http://www.unece.org/env/water WWF campaign: http://wwf.panda.org/what_we_do/how_we_work /policy/conventions/water_conventions/ Contact: Iulia Trombitcaia Environmental Affairs Officer, UNECE iulia.trombitcaia@unece.org
Editor's Notes
- Focus today on the two multilateral framework instruments… Such focus now, in the IYWC, is not by chance: this year will undoubtedly be a historic year for both instruments.
- Adopted by UN General Assembly in 1997 on the basis of ILC Draft Articles – negotiated by mostly lawyers during 3 decades Voted in favor by 106 States From the very beginning: *the Global framework multilateral agreement– with deriving consequences as to the needs to reconcile the very diverse interests Strongly recognized as evidence of international customary law Already influenced many agreements (SADC, Albufeira Convention, etc.)
- Sleeping for about a decade – remarcable increase in the number of ratification in the last 3 years - although Not yet in force (6 ratifications missing), it is expected to enter into force end of 2013-early 2014 Parties (29) In the recent years – many Parties to UNECE Water Convention had ratified.
- Negotiated in 1990-1992 through an intergov. Process The process was under the auspices of UNECE Informally called “UNECE Water Convention”. UNECE-secretariat, in no other way influences The mandate given to the Working Group of Senior Officials which negotiated clearly included references to ILC process. Entered into force 1996 – rather quickly. Enhanced by two protocols, also legally binding. For now – the Convention with 20 years of history.
- So now it is the Convention which covers practically entire UNECE region, with only a few countries left aside. It has generated 20 years of history and activities. We are often asked: how did it happen that the two Conventions were adopted in the 1990s on the same subject? When negotiations of the 1992 Convention took place – it was not yet clear how long the negotiations in the ILC will take. It was obviously easier to agree upon a document in a smaller group of countries. The break up of the f.SU, and generally the Soviet block resulted in major changes on the political map of the region which called for solutions to the management of transboundary waters. So the UNECE Convention emerged as a response to these challenges, and did provide a stable legal framework for cooperation in course of 20 years.
- In 2003 the Parties
- A historic meeting:
- There had been studies: -2000 under UNECE Convention, now being revised -In countries which were Parties to UNECE Convention and were interested in becoming Parties to Watercourses Convention: Concluded the two Conventions: 1) Are perfectly compatible, and the differences between them are a matter of the level of detail. 2) Are based on the same substantive principles: Two same substantive principles -equitable and reasonable utilization -due diligence obligation of no-harm And the Procedural principle of cooperation as catalyst for the implementation of the two substantive ones (forms: specified in the obligations to notify, to consult, to exchange information, to enter into agreements and establish joint bodies, etc.) Almost same provisions with regard to dispute settlement (with minor difference as to compulsory fact finding in the Watercourses Convention balanced by similar role played by joint bodies in the Water Convention).
- There are plenty of examples of how one Convention can clarify and complement another in the substantive content of respective obligations … .
- * Very few differences: Groundwater (the UNECE Water Convention covers all groundwater, even confined groundwaters; the UN Watercourses Convention covers groundwaters which are connected with surface waters so as to constitute a unitary whole. Confined groundwaters are therefore outside the scope of that Convention). Intellectual property (the UNECE Water Convention allows limitation to exchange of information between riparian Partie on the consideration of intellectual property rights, while the UN Water Convention does not allow this ground to be invoked). Obligation to adapt exist agreements in line with the basic principles (present in UNECE Water Convention) One major difference: -Mandatory character of institutional cooperation between Riparian Parties in the UNECE Water Convention -Institutional mechanism based on the Meeting of the Parties in the UNECE Water Convention Of procedural, not substantive character
- It is a living instrument with High Ownership by Parties, but involves also non-Parties, international organisations, NGOs.
- In 2003 the Parties
- Many of you are probably thinking: this is all a nice staff for lawyers , but how can this puzzle be resolved in practice ? How will the two Conventions co-exist? The important thing is to have an open and constructive discussion, the discussion which takes into account the reality and which is at the same time visionary in view of the future challenges, and current and future constrains. It is good that such discussion had already started . World Water Forum in Marseille (March 2012), Symposium in Dundee (June 2012), Rio +20 (June 2012), At the Meeting of the Parties to the Water Convention, there was a side event and a plenary discussion where quite a number of views were presented by Parties, and some scenarios were presented by experts. New work program of the Water Convention has a specific area “(c) Ensuring synergies and coordination with the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses“. Implementation Committee – may play a crucial role in bringing together. McCaffrey. Of course such open and constructive discussion is very important but it is up to the PARTIES to BOTH Conventions to decide: How do they see the two Conventions working together, Whether there is a need for an institutional set up for the NY Convention at all, Whether there is a need for combined/separate institutional arrangements, and so on…
- The UN SG, in his message to the …., underscored the invaluable experience gained by the Water Convention, and encouraged countries from outside the UNECE region to join the Water Convention.
- The SG also addressed the Parties to the Water Convention and emphasized in his message that: - The globalization of the [Water] Convention should also go hand-in-hand with the expected entry into force of the United Nations Watercourses Convention. - These two instruments should be implemented in a coherent manner
- In conclusion I would like to give you the following example. Just a month ago, at the after a decade of negotiations…, facilitated by…., the Rep.of Mold and Ukr. It is a 40-pages Treaty, with 31 articles and 5 annexes. This Treaty is a unique, modern age agreement which takes the best from the two Conventions. Both countries had been Parties to UNECE Water Convention for many years, but they have gone much further when developing the new Treaty: They have formulated the principles of cooperation on the basis of 2 Conventions They have addressed additional issues , not covered by the UNECE Convention but covered by the NY Convention They have gone further then the two Convention in some aspects like protection of biological resources – developing the provisions and principles of the two Conventions to their specific basin. This example shows how both Conventions served in a complementary way to enhance the cooperation.