Charting a Path to 2030 and Beyond Tackling Complex Transboundary Water Challenges Through a Legal Lens: What Role for the Global Water Conventions?

By focusing on the two global water conventions mean the UN Watercourse Convention of 1997 (37 parties) and the UNECE Water Convention of 1992 (46 parties), on 17 March 2022, IWLA held an online seminar entitled ‘Charting a Path to 2030 and Beyond Tackling Complex Transboundary Water Challenges Through a Legal Lens: What Role for the Global Water Conventions?’, with the participation of experts and scholars from governments, universities, international organizations and law firm in Chile, China, Germany, Ghana, India, United Kingdom and the United States.

Dr. Christina LEB, Senior Counsel from the Environment and International Law Department of the World Bank, chaired this online session. Our seminar started with a general introduction to the two global water conventions by Prof. Alistair RIEU-CLARKE (Law School of Northumbria University). 

Then, four panellists from different regions unfolded the discussion on the global water conventions and complex regional transboundary water challenges. Ms. Heide JEKEL from the German Federal Ministry on the Environment, Nature Conservation and Nuclear Safety, acknowledging the significance of the two global water conventions, elaborated on the main challenges of transboundary water cooperation in Germany including adverse impacts of climate change on the availability of water resources, the emerging issues of biodiversity crisis, and water pollution amongst others. 

Dr. Bernadette Araba ADJEI, Deputy Director of the Legal and Monitoring Department of the Water Resources Commission of Ghana, listed four major challenges faced by African countries and people, namely the lack of awareness of the nature of boundary waters by the African States and non-State actors, climate change and its impacts on water allocation, financing difficulty, and inadequate data of infrastructures on transboundary waters. She suggested that joint projects promoting benefit-sharing, collaboration and public awareness education would be possible solutions to these challenges.

Dr. Ximena FUENTES, National Director of Boundaries and Frontier Zones of the Ministry of Foreign Affairs of the Republic of Chile, highlighted three key challenges experienced by Andean countries, including water scarcity that prevents Andean countries from undertaking better transboundary water cooperation and brings more competition; the institutional inability in developing internationally integrated management of shared waters which calls for legislative modification at the national level; lack of resources to undertake cooperative scientific research in particular on aquifers.

Mr. Shawahiq SIDDIQUI, Founding Partner of the Indian Environmental Law Organization, India, was concerned about the fragmented approach employed by ‘outdated’ transboundary water agreements concluded by South Asian countries during the period from the 1950s to the 1990s, since these agreements usually regulate water projects while to a large extent reflecting the realities and responding to the exigencies of that time. He stressed another two problems of these agreements, namely semantic vagueness and institutional mechanisms with limited mandates. The above-mentioned problems result in the inability of these agreements in addressing future challenges of climate change or hydrological changes. In addition, South Asian counties fail to translate national practices relevant to transboundary waters into bilateral cooperation. However, he positively highlighted the Framework Agreement on Cooperation for Development between India and Bangladesh of 2011, since it unconventionally regulates common basin management of common rivers, climate adaptation, capacity building of institutions and environmental protection. But still, there is no guidance in this region about finance mobilization and stakeholder participation.

On this basis, three discussants explored special topics relevant to the two global water conventions from their expertise. Prof. A. Dan TARLOCK, Illinois Tech Chicago-Kent College of Law, suggested that the real challenges of international water law are global climate change and aquatic ecosystem protection. He listed two reasons why the two global water conventions did not tackle the issue of climate change directly: the conventions were adopted before global climate change was perceived as an important issue; as a result, they were not suited to promote climate adaptation, especially considering that the conventions were designed to set the ground rules for water allocation and fair competition for water projects. Against this background, he conveyed two interrelated criteria about how the two global conventions are going to be operated to address the issues of climate change and aquatic ecosystem protection, the first is flexibility with changing and erratic flows, and the second is inter-basin cooperation.

Ana María DAZA-CLARK, Lecturer in International Law at the University of Edinburgh, argued that the relationship between international economic law and international water law has multiple directions going back and forth. She elaborated on her opinion with the example of the water conflict between Brazil and Paraguay that ended up with the conclusion of the Treaty for the Hydroelectric Development of the Hydraulic Resources of the Paraná River of 1973 (ITAIPU Treaty). This Treaty paved the foundations for the long-term sharing of hydroelectric benefits between Brazil and Paraguay. Another example she gave was investments in water projects in particular for hydropower generation. In this case, rules of international economic law can be a vehicle for sustainability which needs to feed on the interpretation of principles under international water law.

Prof. KONG Lingjie, Associate Dean at CIBOS of Wuhan University (Founding Affiliate, IWLA), as a scholar regarding international laws as an integrated whole, firstly highlighted the foundational principles of general international law which are applicable to international water law. He then questioned the globality of the two water conventions due to their limited numbers of member States. Thirdly, he moved to the limitations of the fact-finding procedure under article 33 of the UN Watercourse Convention. On the one hand, the fact-finding procedure has never been interpreted or applied by any contracting parties. On the other hand, it does not reflect general State practice as only around three transboundary water agreements include such a procedure. Fourthly, to echo his first point, he stressed the idea that international law is in one and applies uniformly to all States or regions and quoted Louis Henkin‘s assertion —  ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.’

LIU Yang, Postdoctoral Researcher of the IWLA, asked the following question: in comparison with the UNECE Water Convention, the UN Watercourse Convention does not have an institutional arrangement for its implementation, what possibilities are there to make it ‘alive’? Ms. Heide JEKEL, noticing that about 18 countries have ratified both water conventions, suggested that we might have to think about how to put the parties of the two water conventions on the same platform even in an informal manner. Also, Jekel deemed that it is unnecessary to modify the UN Watercourse Convention or to establish an independent institutional framework for this convention. Dr. FUENTES replied that the UN Watercourse Convention has its flexibility on institutional mechanisms, since it leaves this issue to watercourse States’ discretion without obliging watercourse States to establish institutional arrangements. In comparison, the UNECE Water Convention was drafted for the European context where relevant States already have the will to build joint institutional arrangements. Prof. KONG pointed out that the UN has already given us signals about how these two conventions can move forward, for instance, under the auspices of the UNESCO and by the SDG 6.5.2 monitoring and reporting exercises. The second question was about whether a less legal approach for transboundary waters would sometimes be more beneficial than a dogmatic approach, particularly regarding groundwater. 

Prof. WOUTERS, Founding Director of the IWLA, summarized that the biggest message from today’s discussions is ‘disconnect’— the fundamental lack of connectivity between international water law, international law, and national water law. The second point she summed up was the lack of continuity of vision about what we wanted the conventions to do and where we are now. Based on the experiences shared by panellists, she came up with the third message that regional transboundary water challenges share similarities with differences. 

Prof. WOUTERS closed the session by thanking Dr. Christina Leb (chair), panellists, discussants and participants, as well Dr. David J. Devlaeminck (Lecture from the School of Law, Chongqing University) and Prof. RIEU-CLARKE for helping with organizing this meeting.