The UNECE Water Convention: obligations and practical application
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Francesca Bernardini, Secretary Presentation at the 2nd Targeted Workshop for GEF IW Projects in Africa on Economic Valuation in November 2012 in Addis Ababa.
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The UNECE Water Convention: obligations and practical application
- 1. The UNECE Water Convention: obligations and practical application Francesca Bernardini, Secretary
- 2. What is Europe? • Not only EU, include all ex-Soviet Union countries • Not a peaceful continent • Not a homogeneous continent • Not a water-problem free continent
- 3. Two Conventions: similar but different • Two based on the same principles, very similar obbligations, need to be interpreted in light of each other, fully compatible, complementary • 1997 UN Watercourses Convention – Negotiated by the ILC and GA – Not in force – Without an intergovernmental framework • 1992 UNECE Water Convention – Negotiated by UNECE countries – In force since 1996 – With an intergovernemtal framework
- 4. The Water Convention • Signed on 17 March 1992 • Entered into force on 6 October 1996 • Protocol on Water and Health adopted in 1999, entered into force in 2005 • Protocol on Civil Liability adopted in 2003
- 5. Amendment 2003 • Opening up the Convention to non-UNECE states • Strong commitment to entry into force by 2012/2013 => Promote exchange/share experience => Raise awareness and build capacity => Work together
- 6. . Status of ratification of the Convention 38 countries and the European Union Parties Countries in accession Non Parties
- 7. Main obligations under the Convention • Protection of transboundary waters by preventing, controlling and reducing transboundary impacts • Reasonable and equitable use of transboundary waters • Obligation to cooperate through agreements and joint institutions => Overall objective of sustainability
- 8. Two categories of obligations • For all Parties => also benefit for national legislation • For Riparian Parties => the Convention does no replace basin agreements
- 9. General obligations for all Parties • Licensing of waste-water discharges by the competent national authorities and monitoring of authorized discharges • Best environmental practice for non- point pollution sources • Minimization of the risk of accidental pollution • Application of EIA
- 10. • Cooperate on the basis of equality and reciprocity • Conclude bilateral and multilateral agreements or revise existing ones • Establish joint bodies (e.g. river commissions) • Consult and exchange of information • Joint monitoring and assessment • Elaborate joint objectives and concerted action programme for their shared waters Provisions relating to Riparian Parties
- 11. Step-by-step approach • Due diligence nature of the obligation to prevent, control and reduce transboundary impacts • “All appropriate measures” depend on potential risk involved, capacity of the country… • Good practice to develop a national implementation plan
- 12. Holistic approach • Transboundary impacts means significant adverse effect on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures, and socio- economic conditions => Looks at economic, social and environmental dimensions of water • Covers surface and groundwaters, and links to the recipient seas • Catchments area concept => IWRM
- 13. In practice… • Played a crucial role in the region in supporting cooperation • Most of the existing agreements are modelled on the Convention (Danube, Sava, Bug, Kazakh-Russian, Lake Peipsi, also the Water Framework Directive) • Influenced the work of river commissions • Promoted the IWRM approach
- 14. Not only rights and obligations (1) Becoming a Party = joining an institutional regime Progressive development of the Convention Forum for bilateral and multilateral cooperation Sharing of experience and good practices
- 15. Not only rights and obligations (2) Capacity building Projects on the ground Address requests on clarifications A Party is not left alone in its dealings with the other riparians
- 16. Support to implementation • Guide to Implementing the Water Convention (adopted by Meeting of the Parties 2009) • Other guidelines: monitoring and assessment, transboundary floods management, etc
- 17. Responding to challenges • Guidance on Water and Adaptation to Climate Change • Recommendations on Payments for Ecosystem Services • Model provisions on transboundary groundwaters
- 18. The Second Assessment • Covers more than 140 rivers, 25 lakes, about 200 groundwaters and 25 Ramsar Sites and other wetlands of transboundary importance •Involved more that 250 experts from 50 countries • Illustrates pressure factors, quantity and quality status, transboundary impacts, responses and future trends •=> future thematic assessment on the water/food/energy/ecosystem nexus Assessing results
- 19. Convention bodies • Meeting of the Parties • Bureau • Working Group on Monitoring and Assessment • Working Group on Integrated Water Resources Management • Task Force on Water and Climate • (Task Force on Water/Food/Energy Nexus) • Legal Board • Joint ad-hoc Expert Group on Water and Industrial Accidents • International Water Assessment Center (IWAC) Supported by: UNECE Executive Secretary and the secretariat
- 20. Strengths • Sound legal framework coupled with action to support implementation • Catalyst for cooperation • Strong ownership by Parties • Even non-Parties participate • Continuously evolving • Cooperation with numerous UN agencies, NGOs and other partners
- 21. Planned activities for 2013-2015 related to the opening • Participation of non-ECE countries in regular activities (climate change, nexus, etc) • Build capacity on the Convention outside ECE and promote exchange of experience – Organization of training in other regions – Contribute to training/events organized by others • Synergies with the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses • Cooperation with other partners to support implementation of the Convention (GEF, UNESCO, etc)
- 22. Thank you! More information including guidelines, publications and information on activities under the Convention can be found at http://unece.org/env/water water.convention@unece.org
Notas del editor
- Not a legal presentation on the Convention but a practical one This is not intended to become a propaganda action on the Water Convention, we do not want to pressure any country which has not done so to accede to the Convention but we believe that the opening of the Water Convention is an opportunity to African countries and to you, to representatives of basin organizations, to representatives of national authorities and to GEF project manager. But to take this advantages, there needs to be a good understanding Very traditional format of the session, doesn’t need to be boring= > your curiosity is important, make questions, interrupt presentations as they might be a bit long There is a team of 4 people who made quite a long way to be her today: Zsusza Buzas, who used to the work for the hungarian hdrological service Werner Wahliss from the Bavarian MoE and Public Health Sibylle Vermont Do not abuse us, do use us. Who knows the UNECE Water Convention? There are often misconceptions, misunderstandings on the international water law, I will try to focuserstanding and try to clarify them
- Three major conflicts the former Yugoslavia: Between 1991 and 2000, more than 140,000 people were killed, and almost four million others were displaced. Georgia-South Ossetia conflict, August 2008: more than 1300 reported dead Nagorno-Karabakh War between Armenia and Azerbaijan, 1988-1994: About 610,000 people displaced across Azerbaijan and Armenia. More than 35,000 people were killed in the war, Northern Ireland conflict since 1969, total number of victims: 3568 deaths, of which 1879 are civilians and 1117 of the British Secuirty , Kyrghisztan lower than Lesotho, Senegal and Cote D’Ivoire, Uzbekistan lower than Ghana, Moldova lower than Morocco and Eygpt, Albania, Armenia have a lower GDP per capity of Algeria and Angola. The GDP per capity of teh richets, Luxembourg, is 115 times higher than the one of the poorest A growing problem of water scarcity 46% of the region’s population live in places which are water-stressed. The number of climate-related extreme events in Europe increased by 65% between 1998 and 2007, with overall economic losses doubling to almost €14 billion from the previous decade About 40 million people have required help with their health and basic survival needs, such as safe shelter, medical assistance, safe water supply and sanitation, in the past 20 years. This is a growth of about 400% compared to the 8 million people affected in the previous two decade 120 million people without safe access to water (1 over 7)
- Both Conventions address the same subject-matter and their respective provisions are mutually compatible. Several studies have clearly shown that the two Conventions can be considered complementary. The outcome of a study comparing the two conventions[1] was an overall assessment that the two Conventions are not only of mutual compatibility concerning their interpretation and application, but also of legal consistency and of mutual synergic complementarity. Hence, both are furthering and consolidating the international law process, i.e. general international customary law on the matter. In other words, the two Conventions send out the same normative message through slightly different language. Several countries have therefore ratified both Conventions.
- Next year 20 years from adoption, the Convention has now been in forced for more 15 years during which the legal framework of the Convention was further strengthened by the adoption of two Protocols.
- The Convention is in almost cover the whole region and a number of Parties are in the process of ratification. Many misunderstanding about the Convention are just dispelled looking at the maps of Parties: Only water rich countries ? What about SP and PT, Greece? Only downstream: why should CH, DE, SP ratify it? Only rich countries: what about MD, UA, BY? Another misconception is that high political and economic integration are needed to implement the Convention or to have an effective cooperation on transboundary waters. This is also not correct and without going back to the cooperation on the Rhine which dates back to post world War II and obviously tense Franco-German relationship. I would like to recall the example of the Sava cooepration with the FASRB being the first legal agreement (in all areas) signed after the yugoslavia war
- The Convention is based on three complementary and mutually sustaining obligations, THREE PILLARS: The obligation to take all appropriate measure to prevent control and reduce transboundary impacts. The obligation to ensure that transboundary waters are used in a reasonable and equitable way, so all riparian should benefit from the water in an equitable manner The obligation for riparian to cooperate through the establishment of agreements that foresee joint bodies responsible for joint management It has to be stressed that it’s this three tiered approach that makes the strength of the Convention as indeed the first two principles are very general and their translation in practice can only be achieved trough cooperation and agreement by riparian countries. Moreover the translation into practice also evolves. As a situation that is equitable at a given moment might not be so after changes in the condition and there again you need a mechanism for cooperation to adapt to the changing conditions. Therefore the establishment of legal and institutional mechanism provide the concrete means for the practical implementation of the standards of cooperation required by the Convention and provide a powerful incentive for further and more advanced cooperation It should also be noted that the overarching objective is the sustainability of the resources. For example an agreement that was is reasonable and equitable by the riparian countries but results in the depletion of the resources would not be in compliance with the Convention which
- Two categories of obligations The first set of duties, contained in Part I, are more general and apply to all Parties to the Convention. the first one for all Parties are mostly obligations to ensure the reduction of transboundary impacts and the sustainability of the resources use => this is a main mean through which the Convention does not only benefit the management of transboundary waters but also the one of domestic waters. Measures put in place to protect and sustainably manage transboundary waters also benefit domestic waters The second, contained in Part II, are more specific and must be implemented through the conclusion of further agreements by Riparian Parties sharing the same transboundary waters. The legal framework of the Convention is more detailed than average umbrella agreements, therefore it offers more legal guidance; this is especially true with respect to provisions contained in Part II.
- Acceding to the Convention is seen by many countries as a positive way of strengthening the national legal and governance framework for managing water reosurces, as it allows introducing IWRM approach and modern means to manage water resources
- But most important the Convention embeds the obligation to cooperate on the basis of equality and reciprocity and requires riparian countries to:
- It appears that the general obligation of prevention, control and reduction of transboundary impact, with its specifications and articulations, set out in articles 2 and 3, is one of “due diligence”, as opposed to absolute obligations appropriate = required The due diligence nature and the concept of “appropriateness” of the measures required involve a significant measure of relativity and flexibility as to both contents and time frame of the conduct which is to be taken by Parties. Such relativity would be proportionate to the capacity of the Party concerned, as well as to the nature and degree of the risk of occurrence of transboundary impact in light of the specific circumstances, including the individual features of the relevant water basin. This is to say that, on the one hand, the higher the risk of a major impact – such as that of a flooding from failure of a dam, or of serious toxic pollution from failure in an industrial plant – the greater the care due (i.e. the appropriate measures). On the other hand, the higher the degree of scientific, technological, economic and administrative development, and capacity of the State Party, the higher the standards of care expected and required by it => Developing countries are not expected to implement the Convention at the same level as rich industrialized countries A national implementation plan, ideally complemented with a time frame, may be useful for integrating the Convention’s obligations into domestic activities and transboundary cooperation. Although preparing such a plan is not formally required by the Convention, countries may use it as a step towards the accession and implementation
- Some issues it’s important to highlight The Convention takes a holistic approach based on the understanding that water resources play an integral part in ecosystems as well as in human societies and economies. Quality as well as quantity. Quantity aspects even if less explicitly regulated are also part of the scope of the Convention, same principles apply As for the scope, both surface and GW and link to the recipient seas Not just the water body but the whole catchment area: river basin Which also means that it does not only cover the transboundary section, nor just the part upstream of a border but also the most downstream part
- The Convention has played a crucial role in the region in supporting the establishment and strengthening of cooperation. It came at a very timely moment as with the break up of the Soviet Union and the former Yugoslavia new borders cut thou the region and waters which were previously managed at the national level needed a framework for transboundary cooperation. The Convention offered that framework. Most of the agreements negotiated since the break-up of the Soviet Union and of the former Yugoslavia, with the emergence of new transboundary waters, are modelled on the Convention. Among them are the 1994 Danube River Protection Convention and the 1999 Rhine Convention, which build on the 1992 Water Convention’s provisions in a more specific subregional context. Other examples are the agreements on the rivers Bug, Meuse, and Scheldt, on Lake Peipsi, as well as on Kazakh-Russian and Russian-Ukrainian transboundary waters. Some relatively recent transboundary water instruments include a multilateral Sava River basin agreement and a number of bilateral treaties, such as between Belarus and Ukraine and between Russia and Belarus. The reference to the UNECE Water Convention is contained in the European Union’s Water Framework Directive. The Water Convention has influenced the work of many joint bodies and prompted the establishment of several new ones. Examples include the commissions for the rivers Elbe, Danube, Meuse, Oder and Scheldt, and for lakes Geneva, Ohrid, and Peipsi.
- Why? Parties increasingly focus on implementation Newcomers have questions regarding the Convention. To respond to these needs, Legal Board developed the Guide. The Guide is a comprehensive commentary to the Convention. The Guide explains the legal and technical aspects of the Convention, coupled with concrete examples of good practices, while offering general advice applicable to local situations. It is intended as a practical tool responding to country-specific needs. Structure of the Guide: General part – advantages, how to become a party, general explanations Specific provisions – provision by provision (A background explanation , B minimum requirements, C examples).
- This collaborative framework is in particular important to respond to new challenges. In 2006 for instance countries recognized that a major future challenge for water management is to adapt to climate change and this is even more important to be able to do so in the transboundary context. In face of this big challenge Parties agreed to bring together their experience and lay down some basic common rules to support adaptation in the transboundary context. From 2009, the Convention is supporting a programm of pilot projects in 8 transboundary basins in the pan-European region (Danude, Rhine, Meuse, Sava, Dniester, Neman, Chu and Talas and Dauria) supporting riparian countries to jointly develop vulnerablitiy assessment and strategies to adapt to climate change and to share the experience gained in teh process. The programme will be continued beyond 2012 and additional basins from other regions of the world will be invited to join. A similar process happened in relation to the emerging need to learn to manage water and ecosystems in an integrated manner tapping the precious services that ecosystems can offer for water management (water purification, flow control and flood mitigation, etc). The Recommendations provide a step by step guidance from identifying such services, valuing them and putting in place systems to compensate for them.
- The Convention also monitors its own work and the impact of activities. The first assessment of transboundary waters that was published in 2007 started a series of periodic assessment to monitor the advancement in the region, identify hot spots and guide the work of the Convention as well as that of other actors The second assessment was published in 2011 Focus on national and transboundary legal and institutional frameworks, climate change aspects and subregional specificities 250 experts from 50 countries (Parties and non-Parties, also outside UNECE) contributed
- To conclude, there are a number of success factors and elements that reinforce each others on which the Convention builds in to really promote action on the ground Not only good rules but also action The way it is designed and functions (with MOP, programme of work lead Parties, etc) is a catalysist for cooperation and continue progress. Ownership by Parties which take advantage of it in their bilateral and multilateral cooperation. The established partnerships and cooperative arrangements with intergovernmental organizations within and outside the United Nations system, NGOS, including local and sub-regional organizations as well as the contributions to regional and global policy development and implementation, such as UN Water, the EU Water Initiative, the Environment and Security Initiative (ENVSEC) Other partners recognize the importance to use the Convention as a sound basis for their work., GEF. ECA, other regional commissions