Can Two Global UN Water Conventions Effectively Co‐exist? Making the Case for a ‘Package Approach’ to Support Institutional Coordination
| Author | Rémy Kinna,Alistair Rieu‐Clarke |
| Date | 01 April 2014 |
| DOI | http://doi.org/10.1111/reel.12070 |
| Published date | 01 April 2014 |
Can Two Global UN Water Conventions Effectively
Co-exist? Making the Case for a ‘Package
Approach’ to Support Institutional Coordination
Alistair Rieu-Clarke and Rémy Kinna
In the foreseeable future there will be two legal frame-
work instruments covering transboundary water
issues in force at the global level: the 1997 United
Nations (UN) Watercourses Convention and the 1992
UN Economic Commission for Europe Water Conven-
tion. This development raises questions about the com-
patibility of both instruments, and how they might be
implemented in a coordinated manner. A comparative
analysis of the text of both instruments demonstrates
that there are both similarities and differences
between them, but that they are complementary. There
is therefore significant benefit in promoting and
implementing the conventions as a package. Three
basic institutional options can be envisaged to support
this ‘package approach’, each with their strengths and
weaknesses. Ultimately, whichever option is chosen,
the ‘package approach’ to the implementation of both
conventions offers the best means by which to
strengthen the law of international watercourses.
INTRODUCTION
Numerous global legal instruments influence the law of
international watercourses, including: the Interna-
tional Law Commission’s (ILC) 2008 Draft Articles on
Transboundary Aquifers;1the United Nations General
Assembly (UNGA) Resolution 64/292 on the human
right to water and sanitation;2the 1971 Ramsar Conven-
tion on Wetlands of International Importance (‘Ramsar
Convention’);3the 1992 UN Convention on Biological
Diversity (‘CBD’);4the 1992 United Nations (UN)
Framework Convention on Climate Change;5and the
1994 UN Convention to Combat Desertification.6
However, while it is undoubtedly a worthwhile endeav-
our to explore synergies among all these global legal
instruments, it is arguably most pressing to examine
the synergies between the two framework conventions
that deal directly with international watercourses –
namely the UN Convention on the Law of the Non-
navigational Uses of International Watercourses (‘UN
Watercourses Convention’)7and the UN Economic
Commission for Europe’s (UNECE) Convention on the
Protection and Use of Transboundary Watercourses
and International Lakes (‘UNECE Water Convention’).8
An examination of the synergies between both legal
instruments is particularly pertinent because of the
imminent entry into force of the UN Watercourses Con-
vention and the fact that the UNECE Water Convention
will soon be open to membership by non-UNECE States
– essentially resulting in there being two watercourse
treaties in operation at the global level.
If coordinated effectively, the UN Watercourses Con-
vention and the UNECE Water Convention could make
a significant contribution to addressing transboundary
water challenges across the world.9Around 145 States
share an estimated 276 rivers and lakes, and around
200 aquifers.10 Unfortunately, despite the significance
of international rivers, lakes and aquifers, the current
legal and institutional architecture governing these
transboundary freshwater resources is comparatively
weak. To date, 158 of the world’s 263 international
rivers lack any type of cooperative management frame-
1The Law of Transboundary Aquifers (UNGA Resolution A/RES/63/
124, 15 January 2009. See also G. Eckstein and F. Sindico, ‘The Law
of Transboundary Aquifers: Many Ways of Going Forward, but Only
One Way of Standing Still’, 23:1 Review of European, Comparative
and International Environmental Law (2014).
2Human Right to Water and Sanitation (UNGA Resolution A/RES/
64/292, 3 August 2010).
3Convention on Wetlands of International Importance especially
Waterfowl Habitat (Ramsar, 2 February 1971; in force 21 December
1975) (‘Ramsar Convention’).
4Convention on Biological Diversity (Rio de Janeiro, 5 June 1992; in
force 29 December 1993).
York, 9 May 1992, in force 24 March 1994).
6United Nations Convention to Combat Desertification in Those
Countries Experiencing Serious Drought and/or Desertification, Par-
ticularly in Africa (Paris, 17 June 1994, in force 29 December 1996).
7Convention on the Law of the Non-navigational Uses of International
Watercourses (New York, 21 May 1997; not yet in force) (‘UNWC’).
8United Nations Economic Commission for Europe Convention on
the Protection and Use of Transboundary Watercourses and Interna-
tional Lakes (Helsinki, 17 March 1992, in force 6 October 1996)
(‘UNECE Water Convention’).
9Pegasys Strategy and Development, International Architecture for
Transboundary Water Management: Policy Analysis and Recommen-
dations (DFID/WWF, 2010).
10 A.T. Wolf et al., ‘International River Basins of the World’, 15:4
International Journal of Water Resources Development (1999), 1;
United Nations Educational, Scientific and Cultural Organization
(UNESCO), Atlas of Transboundary Aquifers (UNESCO, 2009).
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Review of European Community & International Environmental Law
RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12070
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
15
work.11 Where agreements are in place, they tend to be
at the bilateral level, even though 33% of the world’s
rivers, lakes and aquifers are shared between more than
two States.12 In summing up the current state of the
legal architecture concerning transboundary waters,
UN-Water suggests:
Existing agreements are sometimes not sufficiently effective
to promote integrated water resources management due to
problems at the national and local levels such as inadequate
water management structures and weak capacity in coun-
tries to implement the agreements as well as shortcomings
in the agreement themselves (for example, inadequate inte-
gration of aspects such as the environment, the lack of
enforcement mechanisms, limited – sectoral – scope and
non-inclusion of important riparian States).13
This identifiable weakness of existing cooperative
arrangements over international rivers, lakes and aqui-
fers stands in stark contrast to empirical analysis which
shows that legal and institutional arrangements can
play an important role in mitigating conflict and pro-
moting equitable cooperation.14 It is particularly worry-
ing given that water is also being increasingly
recognized as a key driver for achieving wider political,
economic and social security.15 The need for a global
treaty regime that could assist in addressing this array
of challenges has thus become compelling.16
If it can be accepted that the UN Watercourses Con-
vention and the UNECE Water Convention might
collectively play a positive role in strengthening
transboundary water cooperation, a practical question
that remains to be answered is whether specific insti-
tutional options might support their effective, joint
implementation. In order to address this question, this
article will provide a brief comparative analysis of the
evolution and current status of the UN Watercourses
Convention and the UNECE Water Convention, and
highlight the key similarities and differences between
their texts. This analysis will maintain that when
envisaged as a ‘package’ both Conventions offer a
much fuller collection of norms than if they were con-
sidered separately. The article will then present three
basic institutional options that could be realised in
order to ensure that both conventions are promoted
and implemented in a coordinated manner. In conclu-
sion, emphasis is ultimately placed on the importance
of joint implementation regardless of which institu-
tional option is chosen.
COMPARING THE EVOLUTION
AND CURRENT STATUS OF
BOTH CONVENTIONS
The origin of the UN Watercourses Convention dates
back to 1959. At that time, the UNGA asked the UN
Secretary-General to prepare a report entitled ‘Legal
Problems Relating to the Utilisation and Use of Inter-
national Rivers’, which was then submitted to the
UNGA in 1963.17 Based on the findings of the report, the
UNGA asked the ILC to take up the study of the law of
the non-navigational uses of international water-
courses.18 The ILC worked on the topic from 1976 to
1994 through its plenary sessions, its drafting commit-
tee and special rapporteur reports.19 Following numer-
ous drafts and discussions with States via the UNGA
and various questionnaires, the ILC submitted the
Draft Articles on the Law of the Non-navigational Uses
of International Watercourses to the UNGA in 1994.
The UNGA then took the decision to convene its Sixth
Committee as a ‘working group of the whole’, open to all
UN member States for three weeks in October 1996 ‘to
elaborate a framework convention on the law of the
non-navigational uses of the international water-
courses’.20 The Sixth Committee subsequently extended
its meeting schedule to November 1996, and recon-
vened in March–April 1997, before the UN Water-
courses Convention was finally adopted on 21 May
1997.21 Upon its adoption, 103 States voted in favour of
the Convention, while 38 States abstained and three
voted against.22
11 M.A. Giordano and A.T. Wolf, Atlas of International Freshwater
Agreements (United Nations Environment Programme, 2002), at 7.
12 N.A. Zawahri and S.M. Mitchell, ‘Fragmented Governance of Inter-
national Rivers: Negotiating Bilateral versus Multilateral Treaties’,
55:3 International Studies Quarterly (2011), 835, at 835.
13 UN-Water, Transboundary Waters: Sharing Benefits, Sharing
Responsibilities (UN-Water, 2008), found at: <http://www.unwater
.org/downloads/UNW_TRANSBOUNDARY.pdf>.
14 A.T. Wolf, S.B. Yoffe and M. Giordano, ‘International Waters: Iden-
tifying Basins at Risk’, 5:1 Water Policy (2003), 29.
15 United States Senate Committee on Foreign Relations, Avoiding
Water Wars: Water Scarcity and Central Asia’s Growing Importance
for Stability in Afghanistan and Pakistan (US Government Printing
Office, February 2011).
16 A. Rieu-Clarke and F. Rocha Loures, ‘Still Not in Force: Should
States Support the 1997 UN Watercourses Convention?’, 18:2
Review of European Community and International Environmental
Law (2009), 185; F. Rocha Loures and A. Rieu-Clarke (eds.), The UN
Watercourses Convention in Force (Earthscan, 2013); A.
Rieu-Clarke, R. Kinna and F. Rocha Loures (eds.), ‘The 1997 UN
Watercourses Convention: What Relevance in the 21st Century?’,
38:2 Water International (Special Issue) (2013), 109.
17 Legal Problems Relating to the Utilisation of International Rivers
(UNGA Resolution A/RES/1401(XIV), 21 November 1959).
18 Progressive Development and Codification of the Rules of Interna-
tional Law Relating to International Watercourses, (UNGA Resolution
A/RES/2669(XXV), 4 January 1971).
19 See, generally, Convention on the Law of the Non-navigational
Uses of International Watercourses, found at: <http://legal.un.org/avl/
ha/clnuiw/clnuiw.html>.
20 Draft Articles on the Law of the Non-navigational Uses of Interna-
tional Watercourses, (UNGA Resolution A/RES/49/52, 9 December
1994).
21 Convention on the Law of the Non-navigational Uses of Interna-
tional Watercourses (UNGA Resolution A/RES/51/299. 21 May
1997).
22 Voting Records of Plenary Meeting No.99 (UN Doc. A/51/PV.99, 21
May 1997).
ALISTAIR RIEU-CLARKE AND RÉMY KINNA RECIEL 23 (1) 2014
© 2014 John Wiley & Sons Ltd
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