By Moez Allaoui, WaterLex |
On 17 August 2014, the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses entered into force, after its ratification by the 35th state party to the convention, Vietnam, 90 days earlier. Thus, through this universal instrument implementation, an important milestone has been reached on the road to cooperation-strengthening between states with transboundary waterways. It brings the world a step closer to achieving sustainable management of shared waters.
The process leading to this implementation was long and tedious. The UN Watercourses Convention was adopted in New York on 21 May 1997 after three years of deliberation by the General Assembly and the Legal Committee of the UN on the draft convention proposed by the International Law Commission (ILC) in 1994. The UN General Assembly had asked, through Resolution 2629, of 8 December 1970, that the ILC take up the study of the Law of the Non-Navigational Uses of International Watercourses, a study initiated in 1971 that lasted more than two decades.
The UN Watercourses Convention’s 37 articles establish a global framework governing international watercourses for so-called riparian states, or countries with transboundary waterways. The framework introduces a range of principles, such as equitable and reasonable utilization, the obligation not to cause significant harm, the obligation to cooperate, and mechanisms for the settlement of dispute.
It is a complex process to reconcile the provisions of the 1997 Watercourses Convention with those of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (adopted on 17 March 1992 and entered into force on 6 October 1996), especially after the entry into force, on 6 February 2013, of the amendment allowing accession to this regional instrument by all UN member states. The United Nations Economic Commission for Europe (UNECE) officially considers that “the two Conventions are fully compatible and complementary.”
Two examples are given by UNECE to justify its assessment:
The 1997 Watercourses convention details factors for equitable and reasonable water resources utilization while the 1992 Water Convention prescribes the content of transboundary water agreements and the tasks of joint institutions for transboundary water cooperation.
There are also some differences between the two conventions, most notably with regard to the provision of an institutional framework. The 1992 Water Convention has a governing body — the Meeting of the Parties — and subsidiary bodies supported by the UNECE secretariat, whereas no such framework is envisaged in the 1997 Watercourses Convention.
But we can add that the most important way the two conventions complement each other is that together they could fit to the hydro-geographic context of any transboundary water resource, whether it is considered to be surface or groundwater. The 1997 Watercourses Convention, on its own, doesn’t cover transboundary groundwater resources unrelated to surface waters. Indeed, article 2 of the convention describes a watercourse as “a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing to a common terminus.” For its part, the 1992 Water Convention consider, article 1, states that transboundary waters are “any surface or ground waters which mark, cross or located on boundaries between two or more States.” Thus, concerned states could choose the instrument best-adapted to their situation.
The challenges today are how to make more nations accede to these global conventions and how to implement them in a way that encourages sustainability and international cooperation. Indeed, the majority of the states sharing the 608 identified transboundary aquifers around the world don’t have adequate bilateral or multilateral agreements on shared waters, which may constitute a source of tension and generate risks for the sustainability of the resources. Through the accession to these two conventions and the acceptance of their binding rules, states will be called to fully cooperate on the utilization and the management of the aquifers and to solve peacefully their conflicts on the basis of the principles and provisions stated. Then, another step to enhance trust and collaboration could be taken through the generalization of River Basin Commissions or joint bodies between riparian States which are not included within the conventions, but are strongly encouraged.
Note: For further information about the UN Convention on the Law of the Non-Navigational Uses of International Watercourses you can refer to UN Watercourses Convention Online User’s Guide.
Moez Allaoui is Legal Desk Senior Advisor at WaterLex.
Image: UN Watercourses Convention, 1997.
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