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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


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


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


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


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


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 )


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


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


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’


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


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


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


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


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

knowledge collide, yielding

fresh perspectives and

approaches” (University of

Dundee Annual Report ‘08)


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

• 3 x 3 week blocks of tuition

and assessment (3rd week)

• leadership training

included.

WLWL Summer School

Ziganshina law unesco centre_brussels_7 dec 2010_dz_updated

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