The Legal Architecture for Transboundary Waters

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The Atlas of International Freshwater Agreements identifies 400 water agreements adopted since 1820. Despite significant legal developments over the past 40 odd years the international legal architecture regulating international watercourses remains fragmented. The majority of basin-specific agreements cover multilateral rivers, even though 67 percent of the world international rivers are bilateral. Additionally, there has been a common trend to adopt bilateral agreements within multilateral river basins. Such a fragmented system means that 158 of the world 263 international basins lack any type of cooperative framework; and of the 106 basins covered by agreements approximately two-thirds do not include all basin states. While such statistics do not account for global and regional treaty regimes, or rules and principles of customary international law, they do demonstrate that governance frameworks at the basin level are often lacking or inadequate.

However, it should be noted that the legal architecture within different regions varies. Throughout Africa there are 59 transboundary river basins, which make up 62 percent of the continent’s land surface. Of these transboundary river basins, 16 are covered by basin-wide agreements, three are partially covered by agreements and 40 have no basin-specific agreements in place. Additionally, Angola, Botswana, Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe have ratified the Revised SADC Protocol on Shared Watercourses Systems, which is applicable to the 15 international watercourses across the Southern African region and embodies much of the content of the UN Watercourses Convention.

Asia is home to 57 transboundary river basins, which account for 39 percent of the continent’s land surface. 10 river basins, constituting 3,270,600 km2 of the land mass, are covered by basin wide agreements. 15 river basins, representing 12,584,400 km2, are partially covered by basin agreements, and 32 river basins representing 1,933,060 km2, are not covered by any basin agreement.

Across Europe there are 64 transboundary river basins covering 54 percent of the continent’s land surface. 35 rivers are covered by basin-wide agreements, whereas 10 are partially covered, and 19 have no basin-specific agreements in place. However, most European states are also obligated to implement two relatively stringent regional agreements, namely the EU Water Framework Directive and the 1992 UN ECE Water Convention. These two regional instruments include commitments that go beyond the requirements of the UNWC.

In North America, there are 41 transboundary river basins that cover 35 percent of the continent’s land surface. There are 28 basin-wide agreements, and a further 4 river basins are partially covered by agreements. Only 9 river basins therefore have no basin-specific agreements in place, representing 76,000 km2.10

Last but not least, South America is home to 38 transboundary river basins, which make up 60 percent of the continent’s land surface. Of these river basins, 23 are covered by basin-wide agreements, whereas 15 basins are not subject to any basin agreements.

An analysis of the legal architecture would not be complete without recognition that in addition to the UN Watercourses Convention there are numerous global conventions that, at least in part, relate to transboundary watercourses. For instance, the Ramsar Convention was adopted in 1971, and currently has 158 contracting parties, who are obliged to promote the wise use of wetlands within their territory. In relation international watercourses, the Ramsar Convention stipulates that, ‘contracting parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one contracting party or where a water system is shared by contracting parties’. Around 30 percent of Ramsar sites are located in international river basins. Similarly, the Biodiversity Convention, ratified by 191 parties aims to promote the sustainable use of the world’s biodiversity. In relation to international watercourses, states are obliged to notify, exchange information and enter into consultations on activities in one state’s jurisdiction or control that are likely to significantly adversely affect the biodiversity of other states.

Pursuant to the Climate Change Convention, ratified by 192 contracting parties, parties are obliged to, ‘develop and elaborate appropriate and integrated plans for coastal zone management, water resources and agriculture, and for the protection and rehabilitation of areas, particularly in Africa, affected by drought and desertification, as well as floods’. Drought and desertification is also covered in the Desertification Convention, ratified by 193 contracting parties. In relation to international watercourses, contracting parties are obliged to develop, ‘long-term integrated strategies that focus simultaneously, in affected areas, on improved productivity of land, and the rehabilitation, conservation and sustainable management of land and water resources’ [emphasis added]. Burgeoning agricultural production due to greater demand for food within an ever increasing globalised world will also mean that trade and investment regimes, such as GATT will have a growing impact on legal arrangements concerning international watercourses.

In assessing the current legal architecture for transboundary waters, UN-Water – a body comprised of all UN agencies with a competence in water-related activities – observed that:

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 countries to implement the agreements as well as shortcomings in the agreements themselves (for example, inadequate integration of aspects such as the environment, the lack of enforcement mechanisms, limited – sectoral – scope and non-inclusion of important riparian States).

It was for some of the challenges identified by UN-Water that the UN Watercourses Convention was first conceived.

For a comprehensive online database of materials regarding international laws and policies for transboundary freshwater resources, please visit the International Water Law Project.

(Source: http://www.unwatercoursesconvention.org/importance/the-legal-architecture-for-transboundary-waters/)

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