International Conventions on Water
Bernardo Hoffman Versieux and Guilherme Sarsur Bahia
This article[1] addresses the theme of water resources for international conventions. Rivers, lakes and aquifers cross borders around the world, and ensuring equitable management of these waters requires States to establish cooperation agreements. According to the United Nations (UN), only 32 countries claim to have 90% or more of their transboundary waters covered by international agreements in 2020, there were only 10 countries in these conditions in 2017 (UN, 2022). Adherence to the two main conventions on transboundary water resources remains a challenge: 47 members to the Water Convention[2] and 37 members to the Watercourses Convention[3].
Water Resources in the Environment Conventions
International conferences on the environment have always highlighted the importance of water as an essential natural resource for all forms of life, for ecosystems and for the exercise of the most diverse human activities. The central concern is the need to promote access to treated water and basic sanitation, as a minimum condition for the dignity and health of individuals. Alongside this central axis, two concerns arise: the use of water for food production, in order to ensure food and nutritional security; and the appropriate destination of effluents and the respective issues related to environmental quality and the preservation of water resources and ecosystems. In these conferences, one can still perceive a great concern with the need to produce more information about water resources; to conceive planning from the watershed unit, regardless of borders; and to promote an integrated management that involves the participation and the cooperation of the parties (UN, 1973, 1987,1993, 2002, 2012, 2022).
In addition to these general themes, each document adds elements that make up the governance of shared waters. The United Nations Conference on Human Development — Stockholm 1972 — proposed the creation of river basin commissions among riparian countries (UN, 1973). The Brundtland Report, especially prepared for the UN General Assembly in 1987, deepened the discussion of the need to decontaminate water, notably by chemical products from agriculture and industry; pointed to deforestation as the main cause for compromising the availability of surface water volume; and highlighted the importance of using water as a source of renewable energy (UN, 1987).
The United Nations Conference for the Environment and Development — Rio de Janeiro 1992 — emphasized the importance of creating comprehensive databases, with accurate and up-to-date information; models capable of dealing with the complexity of the hydrological cycle; normative bases, in order to guide public policies in each country; instruments to promote international cooperation on cross-border resources; and means of studying the impacts of climate change on these resources (UN, 1993). Follow-up conferences were developed over the following decades: Rio+10 (2002), Rio+20 (2012) and Stockholm+50 (2022), but they do not bring new contributions regarding the governance of water resources. The reports, however, reinforce the need for integrated management for cooperation in an increasingly urgent context of climate change (UN, 2002, 2012, 2022).
The Conventions on Transboundary Water Resources
The Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) in 1992, initially of a European regional character, started to receive the adherence of countries from other regions only from 2016. In its general provisions, the parties undertake to manage surface and underground water resources in a rational and ecological manner, with special concern for pollution, in favor of the conservation of these resources and environmental protection. The convention is based on the precautionary principle, the polluter pays principle, and the principle of sustainability (UNECE, 1992).
The Water Convention demands its members that their agreements on transboundary waters be reviewed and adapted to the established principles. Such agreements should also provide for the creation of joint bodies to promote common information, monitoring and warning systems. The integrated management of water resources is considered as the basis for promoting good practices and cooperative strategies among riparian countries. This framework generates commitment between the parties, as well as allows greater transparency regarding the management and respective impacts on water resources (UNECE, 1992).
Disputes between parties should preferably be resolved through the process of direct negotiation. If there is no agreement, the parties compulsorily adhere to two models of dispute resolution: submission of the dispute to the International Court of Justice (ICJ) or arbitration, promoted by the convention itself. Preference will be given to taking the dispute to the Court, with arbitration being subsidiary in this process (UNECE, 1992).
The Convention on the Law of the Non-navigational Uses of International Watercourses (Watercourses Convention) was held in 1997, but its entry into force only took place in 2014. The members also undertake, regardless of the types of uses to be developed, to protect ecosystems; to prevent, reduce or control pollution; to preserve and protect marine ecosystems; and to develop resource management that allows rational and optimal use, protection and control of cross-border resources. The following principles were adopted: equitable and reasonable uses and participation, obligation not to cause significant harm, and general obligation to cooperate (UN, 2014).
The Watercourses Convention encourages countries to adapt their agreements on transboundary water resources to the principles established by the convention and authorizes member countries to enter into agreements that are in line with the provisions of the convention. In the event that there are members and non-members of the Watercourses Convention for the same transboundary resources, no agreement between members may incur a limitation of rights and obligations of non-members (UN, 2014).
Convention members, with regard to planned measures on shared water resources, should exchange information and carry out mutual consultations. Disputes over how to adopt the principles and good practices established by the convention must be resolved through good faith negotiations. In cases where there is no solution, there may be the creation of a commission, to be paid by the parties. Each member can declare in writing, at the time of its accession to the Convention, the recognition of the jurisdiction of the ICJ and of arbitration as means of settling disputes (UN, 2014).
Although the principles are different, the two conventions address the need to make equitable, reasonable and sustainable use of water resources and the obligation not to cause significant harm. It is noted that the Water Convention establishes, as a principle, the condition that the polluting country bears the costs of cleaning up transboundary waters (UNECE, 1992), while the Watercourses Convention proposes that the parties must adopt measures to mitigate and eliminate pollution and discuss compensation (UN, 2014).
Both instruments also condition the parties to international cooperation. The Water Convention requires that all agreements on transboundary water resources be reviewed and adapted to the principles of the convention (UNECE, 1992), while the Watercourses Convention only recommends revision (UN, 2014). In addition, the Water Convention determines that cooperation between the parties establishes joint bodies (commissions) for the promotion of integrated management (UNECE, 1992), whereas the Watercourse Convention does not determine the need for the creation of common bodies (UN, 2014).
By integrated management, both instruments mainly understand the promotion of a common information, monitoring and warning system, which includes indicators on natural, social and economic factors, related to multiple uses, pollution, volume, water quality and ecosystem elements. Integrated management also includes mutual assistance mechanisms and contingency plans for emergencies. All these mechanisms between the parties must be available, in a transparent way, to all countries that share water resources (UNECE, 1992; UN, 2014).
Regarding the institutional framework, the Water Convention establishes the formation of a Secretariat, which is responsible for conducting periodic meetings between members and also establishing the arbitration court, when disputes are not concluded by direct negotiations or by the ICJ (UNECE, 1992). In contrast, the Watercourse Convention does not establish an institutional framework, its members are only recommended to adhere to the Court and arbitration (UN, 2014).
This article highlighted the role of water for environmental conferences, with special emphasis on the two international conventions on transboundary water resources. The two instruments have many similarities, but also considerable differences, especially in the set of obligations of the parties and in the institutional framework. From this panorama, other discussions can be developed, such as the debate on the difficulty of countries adhering the conventions and also the reasons and complications of having two competing international conventions on transboundary waters
References
UN. Convention on the Law of the Non-navigational Uses of International Watercourses. General Assembly, 1997. New York, 2014. Available in: https://legal.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf Accessed on Feb 24, 2023.
UN. Report of the United Nations Conference on Environment and Development. Rio de Janeiro, 3–14 June, 1992. New York, 1993. Available in: https://www.un.org/esa/dsd/agenda21/Agenda%2021.pdf Accessed on Feb 24, 2023.
UN. Report of the United Nations Conference on the Human Environment. Stockholm, 5–16 June 1972. New York, 1973. Available in: https://digitallibrary.un.org/record/523249 Accessed on Feb 24, 2023.
UN. Report of the United Nations Conference on Sustainable Development. Rio de Janeiro, 20–22 June, 2012. New York, 2012. Available in: https://digitallibrary.un.org/record/737074 Accessed on Feb 24, 2023.
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UN. Report of the World Summit on Sustainable Development. Johannesburg, 26 August-
4 September, 2002. New York, 2002. Available in: http://www.un-documents.net/aconf199-20.pdf Accessed on Feb 24, 2023.
UN. Stockholm+50: a healthy planet for the prosperity of all — our responsibility, our opportunity. Stockholm, 2–3 June 2022. New York, 2022. Available in: https://documents-dds-ny.un.org/doc/UNDOC/GEN/K22/117/97/PDF/K2211797.pdf?OpenElement Accessed on Feb 24, 2023.
UN. The Sustainable Development Goals Report 2022. 2022. Available in: https://unstats.un.org/sdgs/report/2022/The-Sustainable-Development-Goals-Report-2022.pdf Accessed on Feb 24, 2023.
UNECE. Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Helsinki, 1992. Genebra, 1992. Available in: https://unece.org/fileadmin/DAM/env/water/pdf/watercon.pdf Accessed on Feb 24, 2023.
Notes
[1] This article was produced within the scope of the research “The management of water resources in Brazil, China and India: the performance of emerging countries in transboundary basins within the international framework of water governance and climate change”, financed by the Fundação de Amparo à Pesquisa de Minas Gerais (Fapemig) and linked to the Department of International Relations at PUC Minas.
[2] Available in:
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&clang=_en#1 . Accessed on Feb 10, 2023.
[3] Available in: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-12&chapter=27&clang=_en . Accessed on Feb 10, 2023.
About the authors
Bernardo Hoffman Versieux: Mestre em Relações Internacionais pela PUC Minas.
Guilherme Sarsur Bahia: Graduando em Relações Internacionais pela PUC Minas.