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Regional Cooperation on Water: An International Law Perspective
Consultation on Enhancing Security in Afghanistan and Central Asia through Regional Cooperation on WaterEuropean Parliament, Brussels
Dinara Ziganshina |7 December 2010
Outline1. Water and international law2. Existing legal framework3. Key elements of a legal regime4. Points for reflection
Water and International Law
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 4
Water
Nature: surface/groundwater, hydrological and climate variabilityNeeds: food, energy, environment, healthGoals: peace and security, development, cultural, spiritual, ecologicalScale: individual, sub-national, national, transboundary, regional,
globalScience: science and technology based Actors: states, governmental and non-governmental agencies, groups,
individuals, IFIs, etc
Water management is context specific Dynamic and flexible laws to respond and adapt in a
timely manner to new information, situations and scientific understandings
Predictability of actions
“Water is a challenging issue for international law” Philippe Sands QC, 2010
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 5
International Law
A product of the wills and practices of states (& indirectly other actors)
A product of political and social processes
An instrument to meet changing ends and value
Lacks centralised authority to determine what law is and enforce it
Operates in diverse political, economic, social and cultural environment and multi-level governance context
Stability/Predictability - Change/Flexibility
Generality - Specificity
Common values - self-interest
States - other actors
Bilateral, basin, regional, global levels
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 6
International law as applied to water
Who gets what, when, why, how?
3 key functions
1. Defines rights and obligations
2. Provides tools for the integrity of the regime (e.g. monitoring, compliance, dispute settlement)
3. Allows for modifications of the existing regime (adaptability)
“Rules of the game”
System of rules that regulate the behaviour of sovereign states and other actors in the area of water
Framework for decision-making and implementation
Promotes regional peaceand security
Adapted from Wouters, 2009
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 7
Who gets what, when, why, how?
1. Identify the applicable law (exiting legal framework)
‘It is not a matter of finding simply an equitable solution, but an
equitable solution derived from the applicable law’ ICJ, Fisheries Jurisdiction, 1974
Art 38 (1), Statute of the International Court of Justice treaties, custom, general principles and subsidiary sources (judicial decisions and the writings of experts)
2. Identify ‘the rules of the game’ (key elements)
scope, substantive and procedural rules, institutional mechanism
and dispute settlement
Existing legal framework: treaty and customary law
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Treaties between the CARs
1992 Almaty Agreement – Soviet management status quo, institutions (ICWC, BWOs)
1993 Kzyl-Orda Agreement – Joint activities on Aral Sea crisis
1996 Agreement – Uzb & Tm water use on Amudarya
1998 Syrdarya Agreement – Water and energy use in Syrdarya basin
1998 Environmental Cooperation Agreement - (Kz, Kg & Uzb)
1999 Parallel Operation of the Energy Systems of CARs
1999 Int’l Fund for saving Aral Sea (IFAS) status Agreement
2006 Convention on Sust. Dev’t in CARs (not in force, signed Kz, Tj, Tm)
Draft Agreements under Aral Sea Basin Programs
– 1994 – ASBP-1 – regional strategy
– 2002 – ASBP-2 – 14 legal instruments
– 2010 – ASBP-3
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Treaties between Afghanistan and USSR
1843, 1946, 1958, 1961 &1964 Agreements on boundary issues and navigation
Status of the treaties
Article 12 of the 1978 Vienna Convention on Succession of States in Respect
of Treaties
“succession of States does not affect … obligations *or+ … rights established by a treaty … relating to the use of any territory … and considered as attached to that territory” (art 11) or “relating to the regime of a boundary” (art 12)
Article 12 reflects a rule of customary international law (ICJ in Gabcikovo-Nagymaros case )
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 11
Participation in regional conventions
Convention Af Kz Kg Tj Tm Uz
1992 UNECE Water ? √ - - - √
1991 UNECE Espoo - √ √ s - -
1992 UNECE Industrial accidents - √ - - - -
1998 UNECE Aarhus - √ √ √ √ -
1992 CIS Environmental Interaction - √ √ √ √ √
1998 CIS Transboundary Watercourses - s - √ - -
1998 CIS Informational Cooperation - √ √ √ - -
1992 Water – UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (2003 Amendment to allow accession by countries outside the UNECE region, not in force yet); 1991 Espoo – UNECE Convention on Environmental Impact Assessment in a Transboundary Context; 1992 Industrial Accidents – UNECE Convention on the Transboundary Effects of Industrial Accidents; 1998 Aarhus – UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters; 1992 CIS Environmental Interaction –Agreement on Interaction in the field of ecology and the environmental protection; 1998 CIS Transboundary Watercourses - Agreement on the Main Principles of Interactions in the field of Rational Use and Protection of Transboundary Watercourses of the CIS; 1998 CIS Informational Cooperation -Agreement on Informational Cooperation in the field of Ecology and the Environmental Protection
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 12
Participation in global conventions
Convention Af Kz Kg Tj Tm Uz
1997 UN Watercourses - - - - - √
1971 Ramsar - √ √ √ √ √
1992 UN CBD √ √ √ √ √ √
1992 UN FCCC √ √ √ √ √ √
1994 UN Desertification √ √ √ √ √ √
1997 UN Watercourses - Convention on the Non-navigational Uses of International Watercourses21 contracting states - 14 short of the number required for entry into force
MEAs: 1971 Ramsar - Convention on Wetlands of International Importance, especially as Waterfowl Habitat; 1992 CBD – UN Convention on Biological Diversity; 1992 UNFCCC – UN Framework Convention on Climate Change; 1992 Desertification – UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 13
Customary law
• Equitable and reasonable use
• No significant harm
• Duty to cooperate
• Obligation to exchange information on a regular basis and on planned measures
• Obligation to consult with other riparian states
• Obligation of prior notification on planned measures
• Obligation to conduct assessments
1997 UN Convention – codification, clarification and the framework for development of customary law
Key elements of legal regime or ‘the rules of the game’
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 15
Identifying the key elements of legal regime
Substantive RulesEquitable and reasonable use
Implementation• Procedural Rules
• Institutional mechanisms
• Dispute avoidance/settlement
ScopeWho is entitled to use what water
Defines rights & responsibilities of
users
Ensures compliance and accommodates
changes in circumstances
What uses?
What waters?
What users?
Adapted from Wouters, 2009
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 16
Key elements of legal regime in the ASB
Equitable and reasonable use; No significant harm; Environmental protection
The Ministers of Water Resources of the CARs, impartial 3rd party (1992 Almaty); ad hoc
arbitral tribunal (1998 Syrdarya), other means
Don’t include all ripariansEcosystems? Groundwaters?
Duty to cooperate; exchange information; consult; notify and assess
Basin: IFAS, ICWC & BWOsUNECE: MoP, Implementation Committees
CIS: Interstate Ecological CouncilGlobal: MEAs institutional bodies
Scope
Substantive rules
Procedural rules
Institutional mechanism
Dispute settlement
Points for reflection
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 18
Legal cooperation between Afghanistan and CARs
Existing fora Customary law: ERU, no-harm rule, duty to cooperate, exchange
information, consult, notify, assess
Water-related MEAs: CBD, UNFCCC, Desertification
Future developments Possibly within 1997 UN and 1992 UNECE Conventions
New basin agreements to include Afghanistan and specify the general rules of customary law for the basin needs
Focus on implementation and compliance Highly contextual substantive rules requires well developed procedural
and institutional systems at place
Responses are layered: multi-level governance context
A sense of obligation must be cultivated at the international level and connected into states’ domestic spheres
Lawyers, policy-makers, and scholars can promote norm-internalization – one of the ways to build capacity on IWL
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 19
UNESCO HELP Centre for Water Law, Policy and Science
• Vision: Water for All
• Mission: Building a new generation of local water leaders
• Core Activities:
– Research
– Water Law, Water Leaders
www.dundee.ac.uk/water
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 20
Water Law Water Leaders (WLWL)
20
Water Law
PolicyScience
Water leaderFocus: WLWL
“The most creative, fruitful
and innovative thinking
thrives at the interfaces
between disciplines where
ideas, technologies and
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fresh perspectives and
approaches” (University of
Dundee Annual Report ‘08)
IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 21
Water Law Water Leaders (WLWL)
International
Water Law
Regulation of
Water ServicesComparative National
Water Law
Core
ModulesFormat and Features
• single modules available
• distance learning induction
• orientation week
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and assessment (3rd week)
• leadership training
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WLWL Summer School
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