Water security and peace: a synthesis of studies ... - unesdoc - Unesco

4. LEGAL APPROACHES: A SOUND FRAMEWORK
4.1. International Law in Conflict Prevention and Resolution 1
A national framework of laws, legal conventions, treaties, and regulations is ultimately
built to codify accepted standards of behavior in that society. International law offers
a series of means to resolve international disputes, both diplomatic (negotiations,
consultation, good offices, mediation, fact-finding, inquiry, conciliation, and the use of
joint bodies and institutions) and legal (arbitration and adjudication). Generally, water
conflicts are settled through negotiations. with an agreement as the final outcome.
While conflicts may arise over scarce water resources between users within a country
and sometimes between states or provinces within a country, this chapter deals with
cases of possible conflict across national borders.
In fact, most transboundary water resources are subject to a treaty regime of
some form. Some 3,500 international agreements govern the use of most of the
world’s shared waters. The agreement may be watercourse-specific (e.g. The
Columbia River Treaty), a boundary agreement (e.g. the 1909 Canada–United States
Boundary Waters Treaty) an umbrella agreement regulating all regional waters (e.g.
1992 Helsinki Convention on Transboundary Waters), or an instrument for dispute
resolution to maintain the “friendly” relations between neighboring states. The key
issues of these agreements for international lawyers are:
! The material terms of the agreement.
! The duration of the agreement.
! Whether or not the agreement is being adhered to by all parties
(implementation).
! How (or if) the agreement may be modified in the event of changed or
unforeseen circumstances. In some cases the legal rules for each of these
elements may be ascertained from rules that are external to the treaty in
question.
Of particular relevance to the PCCP–WfP process is the way disputes are resolved
within the existing legal regimes governing the international waters under
consideration. Review of a number of cases where international law has been a part of
resolving conflict has shown that successful achievement of cooperative solutions is
facilitated by:
! the legal framework in place (series of treaties)
! the relatively good neighborly relations between the parties
! the creation of joint commissions to address the problems
! agreement to submit the matter to arbitration
! absence of significant adverse impact on the quantity or quality of waters flowing
into the neighboring country.
Unfortunately, these enabling factors are seldom present in water conflicts between
watercourse states. Quite often relations between the parties to water disputes are
tense or openly hostile, and the legal basis for regulating transboundary waters may
be either lacking or insufficient. Sometimes a planned or existing use of a shared
water resource may cause serious adverse impacts in another state, depriving it of its
“equitable and reasonable use.” In such a case international law, including various
mechanisms for conflict resolution, is traditionally used by states to facilitate seeking
and securing a mutually acceptable solution. International law, while admittedly not a
panacea for all water conflicts, provides a transparent range of rules, instruments and
mechanisms capable of transforming conflicts into cooperation. Unfortunately
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