Peace, Sustainable Development, and Poverty Alleviation Role of the UN Watercourses Convention S. Sa

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Peace, Sustainable Development, and Poverty
AlleviationRole of the UN Watercourses
Convention S. Salman
Legal
Department, The World BankKyoto, March 19, 2003
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STRUCTURE OF PRESENTATION

• Trace sources of international water law
• History of the UN Watercourses Convention
• Address main features of the Convention
• Sustainable development
• Equitable and reasonable utilization and
  obligation not cause harm
• Prior notification and consultation
• Existing and Future Agreements
• Status of the Convention
• Conclusion

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INTERNATIONAL WATER LAW

• Slow but Steady Evolution
• State Practice
• Judicial and arbitral decision
• Contribution of the Institute of International
  Law
• Contribution of the International Law Association

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INTERNATIONAL WATER LAW THE UN CONVENTION

• Contribution of the International Law Commission
  The UN Convention
• Long history starting in 1970
• A number of rapporteurs and reports
• Draft UN Watercourses Convention completed in
  1994
• Adopted By General Assembly in May 1997
• 103 for, 3 against, 27 abstentions
• Belgium, Nigeria and Fijis intentions

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Sustainable Development

• The mantra of Sustainable Development
• Preamble refers optimal and sustainable
  utilization
• Art. 5 (1) sustainable utilization
• Art.24 (2) defines management as planning the
  sustainable development of the watercourse
• Part IV on Protection, Preservation and
  Management
• Part II on Equitable and Reasonable Utilization
  not allocation

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Equitable and Reasonable Utilization

• Article 5 Right to utilize the watercourse
  (equality of Rights) and duty to cooperate
• Article 6 Factors relevant to Equitable and
  Reasonable Utilization
• Article 7 Obligation not to cause significant
  harm
• Read Together, The Convention central focus is
  equitable and reasonable utilization

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Equitable and Reasonable Utilization

• ICJ in the Danube case recognized the basic
  right of each riparian state to an equitable
  share of the resources of an international
  watercourse.
• Implies
• an upstream state cannot dispose of a watercourse
  however it wishes and
• a downstream state cannot rely on historic uses
  to prevent an upstream state from using the
  watercourse

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Equitable and Reasonable Utilization

• More fundamentally, it means that each riparian
  state
• Has an equality of rights with the other riparian
  states, and
• Is under an obligation under international law to
  use an international watercourse in a manner that
  is equitable and reasonable.
• How that translates into actual allocation must
  be determined on a case-by-case basis, in light
  of all relevant factors

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Equitable and Reasonable Utilization

• An important aspect of equitable utilization is
  equitable participation
• This requires riparian states to take proactive
  measures to ensure that an equitable balance is
  maintained
• Can apply to uses, works, environmental
  protection
• Importance emphasized by ICJ in Danube case

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Prevention of Significant Harm

• A rule operative in many fields of international
  law
• Harm is a two way street
• An upstream state may harm down stream states by
  water deprivation or pollution
• A downstream state may harm one upstream by
• Flooding, or cutting off navigation or fish
  migration
• Foreclosing or restricting future upstream uses
  through its own use patterns
• World Bank Policy

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Prevention of Significant Harm

• UN Convention has resolved conflict in favor of
  equitable utilization (art. 7)
• This is confirmed by ICJs judgment in Danube
  case
• Thus for allocation, equitable utilization is the
  dominant principle
• But for pollution, flooding and other forms of
  harm, the no-harm rule would apply

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Prior Notification

• Concerns uses that may adversely affect other
  riparian states
• new uses, affecting quantity or quality, or
• alterations of the factual or legal regime of the
  watercourse
• Applies to all watercourse states
• Requires states concerned to consult and resolve
  any disputes peacefully

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Prior Notification

• Thus, Convention requires.
• An upstream state to notify a downstream state of
  a proposed new project (dam, factory, irrigation
  scheme, large-scale logging) that might affect
  the downstream state or
• a downstream state to notify an upstream state of
  a proposed new project that might alter the
  equitable balance of uses, making future upstream
  uses more difficult to plan

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Protection of Ecosystem

• UN Convention, art. 20 Watercourse States shall
  . . . protect and preserve the ecosystems of
  international watercourses.
• Affirmative measures required
• Goes beyond pollution control
• Danube case prohibition of harming the
  environment of other states

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Pollution

• No-significant-harm rule applies
• Duty to prevent, reduce and control
• Duty more stringent in case of shared groundwater
• Is it a duty of conduct, or result or both?
• More general obligation to protect watercourse
  ecosystems also applies

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Existing and Future Agreement

• Existing agreements, close to 500, are not
  affected by the Convention
• Parties may consider harmonization
• Convention provides stability and predictability
• Future agreements may apply and adjust provisions
  of the Convention
• Convention provides flexibility
• Rights under the Convention of non-party states
  to an agreement are not affected

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The UN Convention Status

• Not Yet in force, requires 35 ratifications
• Currently it has 16 signatures and 12
  ratifications/Accessions
• Why this slow pace?
• Represents, by and large, the basic principles of
  customary international water law

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The UN Convention - Status

• Endorsed by the ICJ in the Danube Case in
  September 1997
• Endorsed by the World Commission on Water for the
  21st Century
• Endorsed by the World Commission on Dams
• SADC Revised Protocol on Shared Watercourses
  incorporates Convention basic features.
• World Bank Policy for Projects on International
  Waterways has affected and is being affected by
  UN Convention

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The UN Convention - Conclusion

• Falls within the mantra of Sustainable
  Development
• Addresses environmental concerns adequately
• Framework for Cooperation in various aspects
  notification, participation, sharing of
  information
• Framework for Sharing and Equitable Utilization
  as a basis for peace and poverty alleviation
• Sharing of benefits and not just water.

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THANK YOU

• 03/19/2003