Global water conventions feed into each other

Norest Ndawana

Correspondent

In the previous article, it was highlighted that Zimbabwe had become a member state to the two UN global water conventions governing transboundary freshwater resources namely; the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) and the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention). The process is called accession. 

This paper unpacks the two global water conventions.

Approximately 40 percent of the world’s population live in river basins that cross national borders. 

Transboundary river basins cover nearly one half of the earth’s land surface and account for about 60 percent of global freshwater flow. 

These basins link populations and create hydrological, social and economic interdependence between and among countries.

Transboundary water cooperation is therefore essential if we are to ensure the availability and sustainable management of water and sanitation for all. 

The regulation and management of this precious resource is more important than ever and, in particular, given the transboundary nature of water resources, the need for a coherent international legal regime.

The 1992 Water Convention was adopted on March 17 and entered into force on October 6, 1996.

It was prepared by the United Nations Economic Commission for Europe (ECE) over a period of less than two years on the basis of a draft produced by its secretariat to address the needs and conditions of ECE countries, particularly pollution and environmental protection.

Initially, the convention was only open to member states of ECE and regional economic integration organisations constituted by such states. However, in 2003, the convention was amended to allow accession by all United Nations member states. 

The rationale of the amendment was the desire to share the knowledge, practices and experiences collected since the adoption of the convention, and, at the same time, to benefit from the knowledge, practices and experience in other regions of the world and to collectively promote river basin cooperation throughout the world, including offering a global intergovernmental platform for exchange and debate on transboundary water issues and for supporting the implementation of international water law.

The amendment entered into force in 2013. Since March 1, 2016, when the amendment became operational, a total of nine African countries namely: Chad, Senegal, Ghana, Guinea-Bissau, Togo, Cameroon, Nigeria, Namibia and The Gambia have acceded to the convention; Namibia being the first Southern African state to accede to the same. 

Over 20 countries globally are in the process of accession, including several in Southern Africa, such as Zambia, Botswana, Tanzania and Zimbabwe. Currently, the Convention has a total of 52 parties. 

The 1997 Watercourses Convention was adopted on May 21, 1997, and entered into force on August 4, 2014.

The convention was negotiated in the United Nations for a period of almost three decades on the basis of draft articles prepared by the International Law Commission. 

Currently, the convention has a total of 38 parties, of which 14 are from Africa. South Africa and Namibia are the current two Southern African region parties to tit. 

Both conventions codify the substantive regulatory pillars of international law. 

First is the equitable and reasonable use principle. 

This principle is founded in the theory of “limited territorial sovereignty”, which attempts to reconcile the sovereign right of states to utilise waters in their territory with the obligation of not exercising this sovereignty in a prejudicial manner for other riparian states. 

No state can claim absolute sovereignty with regard to the utilisation of transboundary waters. This reflects the principle of community of interest and equality of rights of co-riparians. Second is the obligation to prevent transboundary impact and significant harm.

This principle underlies the state’s obligation to use its sovereign territory in a way that is not harmful to the environment of a neighbouring country and is interconnected with the principle of good neighbourliness. 

On the other hand, there is the procedural duty to cooperate. Cooperation is a catalyst for the implementation of the two substantive principles of equitable and reasonable use and no harm. 

Cooperation is evidenced by, inter alia, institutional mechanisms jointly created by riparians, regular exchange of data and information and notification procedures concerning planned measures.

This is called institutionalised cooperation, which results in dispute avoidance.

There is also dispute settlement mechanism on the other hand, which thrives for resolution in cases the disputes erupt. 

The UN global water conventions cover the same subject; cooperative use, management and protection of international watercourses, that is, freshwater shared by two or more states. 

Is it really necessary to have two treaties on the same subject matter?

It is a generally accepted principle in law that, when several norms bear on a single issue, they should, to the extent possible, be interpreted to give rise to a single set of obligations. 

This is called the principle of harmonisation.

Article 30 of the 1969 Vienna Convention on the Law of Treaties, confirms that two or more treaties on the same subject matter maybe applicable at the same time between the same parties, provided there is mutual compatibility between the provisions. 

As will be shown below, the two conventions are not only compatible, but largely complementary.

While the two conventions cover the same subject matter, their approaches are quite different. 

The 1997 Watercourses Convention focuses more on allocation, while the 1997 Water Convention on environmental protection. 

These qualities are not contradictory but rather complementary in nature. 

The 1997 Watercourses Convention complements the 1992 Water Convention by detailing factors relevant to equitable and reasonable utilisation, specifying the notification procedures on planned measures and describing the consequences of the occurrence of transboundary impact.

In other words, the 1997 Watercourses Convention is more in detail on its content and implementation. 

Conversely, the 1992 Water Convention complements the 1997 Watercourses Convention by prescribing the content of specific agreements and tasks of joint bodies, detailing the information subject to joint assessment and exchange and providing detailed guidance on water quality objectives and the best available technology.

Similarly, both conventions provide for the protection of aquatic ecosystems and the prevention of water pollution, but the 1992 Water Convention is far more comprehensive in this regard. 

There are, however, some differences between the two conventions. 

First, the 1992 Water Convention obliges riparian parties to enter into agreements and establish joint bodies for shared waters, whereas the 1997 Watercourses Convention only recommends watercourse states to conclude specific agreements and cooperate through joint institutions.

Thus, the provisions of the 1992 convention are peremptory, whereas those of the 1997 convention are permissive. Nevertheless, both conventions rely heavily on agreements and joint bodies for their successful implementation. 

Second, the 1992 convention provides for the obligation to adapt existing agreements, where necessary, to eliminate contradiction with basic principles of the agreement. It does not require revision of existing agreements to reflect all the provisions of the convention. 

The 1997 Watercourses Convention on the other hand encourages harmonisation of existing agreements with basic principles of the resolution.

Third, the 1992 Convention establishes an institutional mechanism to support its implementation. 

The convention has a dynamic secretariat, which is responsible for organising and preparing of meetings of the parties, transmission of reports and other information received in accordance with the provisions of the convention and performance of such other functions as may be determined by the parties. 

The 1997 Convention does not provide for such a cooperation mechanism. 

This is the biggest shortfall of the 1997 convention.

Fourth, both conventions cover surface and groundwater, but the 1997 Convention excludes confined groundwater outside its scope. The 1992 Convention covers all transboundary groundwater, including confined aquifers.

The 1992 Convention allows riparian parties to limit the exchange of information between them on the basis of intellectual property rights whereas the 1997 Convention does not allow for such limitation.

These differences do not imply that implementation of one convention impedes the implementation of the other. 

They can be reconciled by way of interpretation to reinforce and strengthen the implementation of both instruments. In fact, these differences are instead a strength, allowing both instruments to be seen as full package of norms where the more detailed provisions in one instrument can inform the implementation of the other. 

That complementarity was recognised by the then UN Secretary-General, Ban Ki-moon, who stressed in 2012 that “these two instruments are based on the same principles. They complement each other and should be implemented in a coherent manner”.

In 2018, the UN Secretary-General, Antonio Guterres, called upon member states “to join both conventions and strive for their full implementation”.

Norest Ndawana is an environmental lawyer under the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development and writes in his official capacity as the national focal point to the water convention.

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