Source: The UN Watercourses Convention online Users guide
On the 19th May 2014 Vietnam acceded to the UN Watercourses Convention, making it the 35th country to join this global instrument (see here for more details on the relevance of the UN Watercourses Convention to Vietnam).
This marks the culmination of a concerted process to promote the benefits of the Convention and support its entry into force, which since 2006 has been lead by WWF. Article 36 of the Convention stipulates that, ‘the present Convention shall enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession’. This means that the Convention will enter into force on the 17th August 2014.
Entry into force of this global framework convention that seeks to, ‘ensure the utilisation, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof for present and future generations’, is a significant milestone in the development of international water law. Hopefully, entry into force, together with the global opening of the UNECE Water Convention, will lead to growing awareness of the benefits of these global framework instruments, encourage more countries to join them, and go along way to strengthening transboundary governance arrangements across the world.
Importance of entry into force
On the 19th May 2014 Vietnam acceded to the UN Watercourses Convention, making it the 35th country to join this global instrument (see here for more details on the relevance of the UN Watercourses Convention to Vietnam).
This marks the culmination of a concerted process to promote the benefits of the Convention and support its entry into force, which since 2006 has been lead by WWF. Article 36 of the Convention stipulates that, ‘the present Convention shall enter into force on the ninetieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession’. This means that the Convention will enter into force on the 17th August 2014.
Entry into force of this global framework convention that seeks to, ‘ensure the utilisation, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof for present and future generations’, is a significant milestone in the development of international water law. Hopefully, entry into force, together with the global opening of the UNECE Water Convention, will lead to growing awareness of the benefits of these global framework instruments, encourage more countries to join them, and go along way to strengthening transboundary governance arrangements across the world.
Importance of entry into force
There are various reasons why entry into force of the UN Watercourses Convention would be beneficial.
Address fragmentation: There are over 400 basin-specific agreements, but 60 percent of the international watercourses lack cooperative management arrangements, and the majority of agreement are bilateral, even where more than two states share a particular watercourse. Additionally, many watercourse agreements only partially cover key issue that are provided for in the UN Watercourses Convention, such as emergency situations, data-sharing, consultation and negotiation, or dispute settlement.
Once in force, and as a framework instrument, the UN Watercourses Convention could therefore assist in addressing such fragmentation. A global framework agreement, if in force, could play an important role in addressing such fragmentation by supplementing and strengthening the legal architecture where:
i) no basin agreement exists;
ii) not all basin states are party to an existing agreement;
iii) and/or an existing agreement only partially covers matters addressed by the UN Watercourses Convention.
It was in this sense that the Nordic Counties summed up the value of a framework agreement during the Convention’s drafting process, stating that it ‘provides a good basis for further negotiations. It leaves the specific rules to be applied to individual watercourses to be set out in agreements between the States concerned, as has been the current practices’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993). At the regional level, the 1992 UNECE Water Convention and the 2000 Revised SADC Protocol on Shared Watercourses illustrate the role of framework instruments in addressing gaps at the basin and sub-basin level.
The UN Watercourses Convention could also play a role in addressing ‘horizontal fragmentation’. Entry into force could therefore foster stronger synergies with other water-related multilateral environmental agreements, such as those dealing with climate change, biodiversity, wetlands, desertification and so forth.23
Development of treaty law: Entry into force of the UN Watercourses Convention could provide a solid and widely accepted basis by which to further develop treaty law at the global level. Additional protocols could be developed on areas that are ripe for progressive development. In this regard, the question of the ILC 2008 Draft Articles on Transboundary Aquifers could be considered. Indeed, if the UN Watercourses Convention had entered into force prior to the development of the Draft Articles would they be better integrated with the provisions of the Convention?
Policy statement: Formal and widespread support for the UN Watercourses Convention would send a definitive and clear message that, as codified in the Convention, international law requires states to cooperate over international watercourses, lakes and aquifers, including, where appropriate, through joint planning and actions, and within the framework of equitable and reasonable use and participation. From a legal perspective, such a statement may seem redundant, as the duty to cooperate is widely regarded as part of customary international water law. However, in the context of global water negotiations, an effective and widely endorsed UN Watercourses Convention could make a major difference. For example, during negotiations at the 6th World Water Forum, one state raised the issue that the UN Watercourses Convention cannot even be referred to as a “convention”, because it is not yet in force. Arguably, if the UN Watercourses Convention had been in force, states would have had less room to downplay the duty of watercourse states to cooperate and the role of international law in this context, leaving more time for discussions on substantive issues. Hence, entry into force of the Convention would provide the UN and other international organisations with a strong legal mandate by which to support and advance transboundary water issues at the global level – a mandate that is currently lacking.
Raising awareness: Closely related to the political considerations noted above, entry into force may also assist in raising awareness of the Convention. Entry into force may put the Convention higher on the political agenda, and States may be more persuaded to examine the relevance of the Convention if other States have already undergone such a process.
Strengthen customary international law: Regardless of entry into force the UN Watercourses Convention already enjoys an influential role as an authorities statement of what is, or what should be customary international law in the field. However, non-entry into force raised questions over which of its provisions reflect existing or emerging customary law, as well as the precise content of that law. If widely ratified all of the UN Watercourses Convention’s provisions could be considered as reflective of customary international law and thus become potentially binding even on non-parties. Entry into force and widespread ratification wold therefore ensure the successful completion of the task entrusted to the International Law Commission: that of codifying, clarifying and progressively developing the law of the non-navigational uses of international watercourses, with a view to offering a clearer, more stable framework for transboundary water cooperation at the global level.
Address fragmentation: There are over 400 basin-specific agreements, but 60 percent of the international watercourses lack cooperative management arrangements, and the majority of agreement are bilateral, even where more than two states share a particular watercourse. Additionally, many watercourse agreements only partially cover key issue that are provided for in the UN Watercourses Convention, such as emergency situations, data-sharing, consultation and negotiation, or dispute settlement.
Once in force, and as a framework instrument, the UN Watercourses Convention could therefore assist in addressing such fragmentation. A global framework agreement, if in force, could play an important role in addressing such fragmentation by supplementing and strengthening the legal architecture where:
i) no basin agreement exists;
ii) not all basin states are party to an existing agreement;
iii) and/or an existing agreement only partially covers matters addressed by the UN Watercourses Convention.
It was in this sense that the Nordic Counties summed up the value of a framework agreement during the Convention’s drafting process, stating that it ‘provides a good basis for further negotiations. It leaves the specific rules to be applied to individual watercourses to be set out in agreements between the States concerned, as has been the current practices’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993). At the regional level, the 1992 UNECE Water Convention and the 2000 Revised SADC Protocol on Shared Watercourses illustrate the role of framework instruments in addressing gaps at the basin and sub-basin level.
The UN Watercourses Convention could also play a role in addressing ‘horizontal fragmentation’. Entry into force could therefore foster stronger synergies with other water-related multilateral environmental agreements, such as those dealing with climate change, biodiversity, wetlands, desertification and so forth.23
Development of treaty law: Entry into force of the UN Watercourses Convention could provide a solid and widely accepted basis by which to further develop treaty law at the global level. Additional protocols could be developed on areas that are ripe for progressive development. In this regard, the question of the ILC 2008 Draft Articles on Transboundary Aquifers could be considered. Indeed, if the UN Watercourses Convention had entered into force prior to the development of the Draft Articles would they be better integrated with the provisions of the Convention?
Policy statement: Formal and widespread support for the UN Watercourses Convention would send a definitive and clear message that, as codified in the Convention, international law requires states to cooperate over international watercourses, lakes and aquifers, including, where appropriate, through joint planning and actions, and within the framework of equitable and reasonable use and participation. From a legal perspective, such a statement may seem redundant, as the duty to cooperate is widely regarded as part of customary international water law. However, in the context of global water negotiations, an effective and widely endorsed UN Watercourses Convention could make a major difference. For example, during negotiations at the 6th World Water Forum, one state raised the issue that the UN Watercourses Convention cannot even be referred to as a “convention”, because it is not yet in force. Arguably, if the UN Watercourses Convention had been in force, states would have had less room to downplay the duty of watercourse states to cooperate and the role of international law in this context, leaving more time for discussions on substantive issues. Hence, entry into force of the Convention would provide the UN and other international organisations with a strong legal mandate by which to support and advance transboundary water issues at the global level – a mandate that is currently lacking.
Raising awareness: Closely related to the political considerations noted above, entry into force may also assist in raising awareness of the Convention. Entry into force may put the Convention higher on the political agenda, and States may be more persuaded to examine the relevance of the Convention if other States have already undergone such a process.
Strengthen customary international law: Regardless of entry into force the UN Watercourses Convention already enjoys an influential role as an authorities statement of what is, or what should be customary international law in the field. However, non-entry into force raised questions over which of its provisions reflect existing or emerging customary law, as well as the precise content of that law. If widely ratified all of the UN Watercourses Convention’s provisions could be considered as reflective of customary international law and thus become potentially binding even on non-parties. Entry into force and widespread ratification wold therefore ensure the successful completion of the task entrusted to the International Law Commission: that of codifying, clarifying and progressively developing the law of the non-navigational uses of international watercourses, with a view to offering a clearer, more stable framework for transboundary water cooperation at the global level.
