Water for people.pdf - WHO Thailand Digital Repository

S H A R I N G W A T E R : D E F I N I N G A C O M M O N I N T E R E S T / 3 0 3Legal principlesThe United Nations (UN) Convention on the Law of the NonnavigationalUses of International Watercourses, adopted in 1997 bythe UN General Assembly following twenty-seven years ofdiscussion and negotiations, is one post-Rio accomplishment thatspecifically focuses on transboundary water resources. It codifiesmany of the principles deemed essential by the internationalcommunity for the management of shared water resources, such asequitable and reasonable utilization of waters with specific attentionto vital human needs, protection of the aquatic environment andthe promotion of cooperative management mechanisms. Thedocument also incorporates provisions concerning data andinformation exchange and mechanisms for conflict resolution. Ifratified, the UN Convention would provide a legally bindingframework, at least upon its signatories, for managing internationalwatercourses. Even without ratification, its guidelines are beingincreasingly invoked in international forums.The UN’s approval of the Convention, however, does not entirelyresolve many legal questions concerning the management ofinternationally shared waters. First, the Convention would technicallyonly be binding on those nations that sign and ratify it. Five yearsafter its adoption by the UN General Assembly, the Convention hasonly been signed by sixteen countries 1 and ratified by nine, well belowthe requisite thirty-five instruments of ratification needed to bring theConvention into force, and it therefore has no legal status. Second,international law only guides conduct between sovereign nations, andcannot address the grievances of political or ethnic units withinnations. Third, while the Convention offers general guidance tocoriparian states, its vague and occasionally contradictory languagecan result in varied, and indeed conflicting, interpretations of theprinciples contained therein. For example, during the negotiations thatpreceded the adoption of the Convention, the wording of Article 7devoted to the principle of ‘non-significant harm’ and its relation withArticles 5 and 6, both devoted to the principle of ‘reasonable andequitable use’, provoked one of the major confrontations betweenupstream and downstream countries. The final wording of Article 7 canbe interpreted in favour of both upstream and downstream countries.Each group has considered that this new formulation was strongenough to support its allegations and accepted it, although theopposing group, which accepted it for the same reason, interpreted itin the exact opposite way. A fourth legal issue left unresolved by theConvention is that there is no practical enforcement mechanism to1. As of 12 June 2002, the countries having signed the Convention were: Côte d’Ivoire,Finland, Germany, Hungary, Jordan, Luxembourg, Namibia, Netherlands, Norway,Paraguay, Portugal, South Africa, Syrian Arab Republic, Tunisia, Venezuela andYemen.2. The International Court of Justice was established in 1946 with the dissolution of itspredecessor agency, the Permanent Court of International Justice. This earlier bodydid rule on four international water disputes during its existence from 1922–46.back up the Convention’s guidance. The International Court of Justice(ICJ), for example, hears cases only with the consent of the partiesinvolved and only on very specific legal points. Moreover, in its fiftyfive-yearhistory, the Court has decided only one case 2 pertinent tointernational waters – that of the Gabèikovo-Nagymaros System on theDanube between Hungary and Slovakia in 1997. Finally, theConvention addresses only those groundwater bodies that areconnected to surface water systems – i.e. shallow, unconfined aquifers.Several nations are beginning to tap into deep and/or confinedgroundwater systems, many of which are shared across internationalboundaries. A more detailed summary of international public lawrelated to shared water resources and the growing number of legalprinciples that are beginning to be accepted, is provided in box 12.6.Developments in basin-level transboundary water managementA closer look at the world’s international basins gives a greater senseof their significance in terms of area and conflict potential. Therewere 214 transboundary basins listed in 1978 (UN, 1978), the lasttime any official body attempted to delineate them, and there are263 today (see table 12.1). The growth is largely the result of the‘internationalization’ of national basins through political changes,such as the break-up of the Soviet Union and the Balkan States, aswell as access to better mapping sources and technology.Even more striking than the total number of basins is abreakdown of each nation’s land surface that falls within thesewatersheds. A total of 145 nations include territory withintransboundary basins. Twenty-one nations lie entirely withintransboundary basins, and an additional twelve countries havegreater than 95 percent of their territory within one or moretransboundary basins. These nations are not limited to smallcountries, such as Andorra and Liechtenstein, but also include, forexample, Bangladesh, Belarus, Hungary and Zambia.Beyond their importance in terms of surface and political areaconsumed, a look at the number of countries that share individualwatercourses highlights the precarious setting of many internationalbasins. Approximately one third of the 263 transboundary basins areshared by more than two countries, and nineteen involve five ormore sovereign states. Of these, one basin – the Danube – haseighteen riparian nations. Five basins – the Congo, Niger, Nile,Rhine and Zambezi – are shared by between nine and elevencountries. The remaining thirteen basins – the Amazon, Aral Sea,Ganges-Brahmaputra-Meghna, Jordan, Kura-Araks, Lake Chad,Mekong, Neman, La Plata, Tarim, Tigris-Euphrates and Vistula(Wista) – have between five and eight riparian countries.