Charting a Path to 2030 and Beyond: What next for the Water Conventions? Summary of the high-level panel discussion – Views from the experts

2022 marks the 25^th anniversary of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention), and the 30^th anniversary of the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention). These conventions provide frameworks for the sustainable and peaceful management of transboundary freshwaters and have codified and progressively developed the international law of this field. In a rapidly changing world, however, the conventions face a series of challenges, such as climate change, pollution, biodiversity loss and population pressure.

In order to examine the challenges  facing the water conventions and to chart a path to 2030 and beyond, the International Water Law Academy (IWLA) of Wuhan University hosted a high-level panel discussion, entitled Tackling Complex Transboundary Water Challenges Through a Legal Lens: What Role for the Global Water Conventions?  Chaired by Dr. Christina Leb, Senior Counsel of the World Bank, the Panel Event invited four panelists and three discussants to tackle this subject.

The law of international watercourses was codified and progressively developed through the drafting and entry into force of both the global water conventions. These framework conventions, based upon substantive rules of equitable and reasonable utilization and the due diligence obligation to prevent significant harm, provide a foundation for states in their joint management of transboundary water resources. Despite their relative success in codifying and progressively developing the law in this area, gaps remain. The governance of groundwater, for example, lacks sufficient cooperation arrangements, with only 7 agreements governing the 450 transboundary aquifers. Given the relatively low number of State parties to the conventions, there are also issues concerning their universality. While some of the rules codified in the global water conventions are customary international law, as recently exemplified in the hearings of Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) at the International Court of Justice, panelists remarked that inadequate attention is given to the correlation between the Conventions and customary law.  

Some experts pointed out that more flexibility is needed in the conventions to address contemporary challenges such as climate change. For instance, how can legal frameworks help ensure that infrastructure operate effectively under erratic rainfall patterns? Moving forward some agreements may need to be revised to move away from fixed water allocations.  Ghana, for example, has adopted a strategy of developing agreements with upstream States to help address flood and drought issues.

As well as climate change, states around the world are experiencing challenges that call for enhanced transboundary cooperation like water pollution and restoration of biodiversity. As part of the international legal system international water law is governed by the UN Charter and it is also affected by different branches of international law such as international economic law and trade law. This may create tension in terms of concessions and Bilateral Investment Treaties (BITs) and cause upstream- downstream disputes over competing uses. The scarcity of water resources also creates competition, potentially limiting incentives for cooperation. In this regard, countries may adopt of strategy of securing their rights first before initiating cooperation, which will inevitably lead to conflict. An example of countries adopting a cooperative approach to avoid conflict is the 1973 Treaty of Itaipu, regarding the utilization of the Paraná River for hydropower generation. In this case international economic law can be seen an important aspect of transboundary water cooperation as the economic benefits of joint action, e.g., through the development of the Itaipu Hydropower scheme, provided a clear incentive for Brazil and Paraguay to cooperate.

When signing onto agreements, States must establish the necessary legislation for their implementation at the domestic level. There is, however, at times a lack of coordination between national and transboundary legal and institutional frameworks. In some countries there is a lack of expertise within State water authorities and a lack of coordination with non-state actors, as well as vested political or economic interests. Therefore, there is a need for capacity building in the implementation of procedural law. While reforms are needed in domestic legal systems to better fill the domestic-international law gap, this research mainly comes from academia funded by international grants. In India, for example, policies concerning integrated water resources management have been implemented and policies have been developed, but this has not yet translated into bilateral cooperation between India and its neighbours.

Some participants mentioned that Environmental Impact Assessment and Cumulative Impact Assessment (CEIA) may be the linchpin connecting national authorities and their duties and transboundary water issues. There is a need for joint scientific research (e.g., pursuant to Art. 12 of the Water Convention) as well as for learning from the legal practices of other countries and existing signatories through sharing of experiences about domestic legislation.  It was suggested the Water Convention Implementation Committee has a role to play a to support the implementation of existing agreements, to answer questions when legal agreements are being established and for technical advice on how to reflect international obligations in national legislation as well as on establishing or reforming institutions to handle a transboundary mandate (including capacity building).

The UNECE Convention has been highly influential in Europe, for instance on the Water Framework Directive and provides a common understanding and language to its signatories. Its global opening has also had an impact on the EU external actions in water diplomacy (e.g., EU Council Conclusion on Water, Nov. 2021 EU External Action Plan Conclusions). It provides a good platform for the exchange of information, knowledge and experiences about water cooperation.

In their concluding remarks, the panel agreed that the Water Conventions provide an important basis for improved transboundary water cooperation, but complex challenges require flexible and innovative approaches. In this respect there has been some success in integrating the problems posed by climate change and ecosystem protection into the Water Conventions.  The Academy has set itself the challenge of charting a path to 2030 and beyond, by examining transboundary regional and global water state practice through a legal lens with a focus on the Water Conventions and how they can meet the current challenges of transboundary water governance.

 The high-level panel is part of a series of events hosted and coordinated by the International Water Law Academy (IWLA) of Wuhan University in China. In addition to the panel discussion, there is blog under the Emerging Scholars Initiative, an international conference in 2023, based on the issues raised here, and a dedicated Special Issue in international journals.  An international project on global outreach of the Academy’s activities and research began in 2022. The Academy has consolidated its global research around four broad Research Interest Areas, which will contribute to scholarship around the complex challenges in transboundary water cooperation, such as climate change, governance, economic law and interlinkages between the various branches of international law.  We invite you to join a meeting at Wuhan University September 7-8,2023 to continue Charting a Path to 2030 and Beyond.

Participants of the High-Level Panel

Chair: Dr. Christina Leb, Senior Counsel of the World Bank
Panelists:
Dr. Bernadette Araba Adjei, Chief Legal Officer of the Legal and Monitoring Department, Water Resources Commission of Ghana;
Dr. Ximena Fuentes, Vice-Minister of Foreign Affairs of the Republic of Chile, Associate Professor of Public International Law at the University of Chile, and Agent of the Republic of Chile in the Silala Case before the International Court of Justice;
Ms. Heide Jekel, Head of Division, Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection of Germany;
Mr. Shawahiq Siddiqui, Founding Partner of the India Environmental Law Organization (IELO) of India.

Discussants
Dr. Ana Maria Daza Clark, Lecturer in International Law, School of Law, Edinburgh University
Professor A. Dan Tarlock, Distinguished Professor Emeritus, Illinois Tech Chicago-Kent College of Law
Professor Lingjie Kong, Associate Dean, China Institute of Boundary and Oceans Studies, Wuhan University
Rapporteur: Zaki Shubber, PhD Candidate at Queen Mary University, UK

For more information on the Charting a Path initiative please contact David Devlaeminck; djdevlaeminck@live.com.