The Convention on the Law of Non-navigational Uses of International Watercourses

Transcription

1 DEUTSCHES INSTITUT FÜR ENTWICKLUNGSPOLITIK (DIE) The Convention on the Law of Non-navigational Uses of International Watercourses Waltina Scheumann Axel Klaphake Gutachten im Auftrag des Bundesministeriums für wirtschaftliche Zusammenarbeit und Entwicklung Bonn, 18. Januar 2001

2 Deutsches Institut für Entwicklungspolitik Tulpenfeld 4 D Bonn Telefon (0228) Telefax (0228) DIE-Bonn@die-gdi.de

3 Contents 1 Introduction 2 The Convention on the Law of Non-navigational Uses of International Watercourses 2.1 Transboundary water resources in the Agenda Negotiations on the Convention Physical scope of applicability The framework character of the Convention Equitable and reasonable utilisation (Art.5) and the no-harm principle (Art.7) Co-operation Exchange of data and notification procedure Environmental provisions Settlement of disputes 3 Summary and recommendations for agenda RIO+10 References Abbreviations and acronyms EIA G-77/China ILA ILC SADC UNCED UNCHE UNECE UNGA UNGASS Environmental Impact Assessment Group of 77 developing countries, established in 1964, with meanwhile more than 130 member countries including China International Law Association International Law Commission Southern African Development Community United Nations Conference on Environment and Development United Nations Conference on Human Environment United Nations Economic Commission for Europe United Nation General Assembly United Nation General Assembly Special Session

4 1 Introduction Freshwater resources were not among the topics of the United Nations Conference on Environment and Development (UNCED) that received much political attention and publicity. The agenda was dominated by negotiations on conventions on climate change, bio-diversity, on protecting (tropical) forests, and, finally, it was agreed that a convention on combating desertification would be negotiated later in However, it would be misleading to assume that freshwater resources were a neglected issue. Prior to RIO, the UN Conference on Water and the Environment (Dublin 1992) decided on four relevant principles which influenced negotiations during the UNCED, and have dominated academic as well as political discussion ever since. In RIO, debates over freshwater resources were restricted to the Working Group II that proposed a draft which became part of the AGENDA 21 (Chapter 18: Protection of the Quality and Supply of Freshwater Resources: Application of integrated Approaches to the Development, Management and Use of Water Resources ). After the UNCED, protection and development of freshwater resources attracted increasing attention and a considerable number of international conferences were organised. In 1997, the Special Session of the UN General Assembly (UNGASS) called for a Programme for the Further Implementation of the Agenda 21, and decided that the CSD-6 working programme for 1998 to 2002 would be to develop strategic approaches to freshwater management. Early this year, the Second World Water Forum in The Hague developed a World Water Vision and a Framework for Action for overcoming the threatening water crises. However, despite continuing efforts, success has been mixed. Therefore, the International Conference on Freshwater 2001, hosted by Germany, will focus on practical solutions to be implemented. The Conference is part of the 10-year follow-up to the United Nations Conference on Environment and Development in 2002, and will be a preparatory step for the upcoming review of the UNCED s outcomes. In this study 1 the Convention on the Law of Non-navigational Uses of International Watercourses is analysed that provides general and internationally agreed guidelines for regulating international relations concerning transboundary issues. Negotiations on this convention were not part of the UNCED process; they started as early as 1971 and were negotiated in a separate forum. 1 See Terms of Reference, September 2000.

5 2 The Convention on the Law of Non-navigational Uses of International Watercourses With the fall of the Berlin Wall in 1989 and the collapse of the Soviet Union, the traditional focus of the security agenda broadened: human security is understood as an absence of threat to human life, lifestyle or culture and has led to include other factors such as environmental and social threats, rather than just military. Subsequently, water resource conflicts have gained increasing attention, and some international institutes have predicted water wars. These fears are fed by unsettled conflicts over transboundary rivers in the Middle East and the perception of a global water crisis. The logic behind these fears has been that with 1.7 billion people already suffering water shortages in shared river basins and a given population growth, competition over a scarce resource would intensify and eventually lead to international disputes. This linear relationship between population growth inducing water scarcity resulting in violent disputes was later abandoned due to its gross oversimplification and false conclusion. 2 Evidence suggests that water resources and increasing scarcity in and by themselves have not led to the outbreak of war 3, although conflict over the control of water resources has occurred between riparian countries of e.g. the Jordan, the Nile and the Euphrates-Tigris rivers. 4 To the contrary, the many water-related treaties that have been negotiated and agreed upon show that transboundary rivers are a catalyst for co-operation. 5 However, even if resource scarcity alone is not a determining factor for countries to go to war, it can aggravate existing conflicts and make them more acute. International law is but one of the instruments which helps settle conflicts and prevent disputes over the use of shared water resources. In this respect, negotiations on and the final text of the Convention on Non-navigational Uses of International Watercourses shows what is accepted and where further development can start. 2.1 Transboundary Water Resources in Agenda 21 Agenda 21 comprises few statements that explicitly deal with transboundary water resources, although these are by their very nature - of international concern. This is surprising because in many regions of the world transboundary water resources significantly contribute to nations economic development and social welfare. Use of these waters may not be compatible among states either in terms of quantity or quality, or both, and conflicting uses need to be settled. 2 See Turton, A. (2000): Water Wars in Southern Africa: Challenging Conventional Wisdom, in: Solomon and Turton (Eds.): Water Wars: Enduring Myth or Impending Reality. Africa Dialogue Monograph Series No. 2, Accord, pp FAO (2000): New Dimensions in Water Security. Water, society and ecosystem services in the 21st century, p See Scheumann, W.; Schiffler, M. (Eds.) (1998): Water in the Middle East. Potential for Conflicts and Prospects for Co-operation, Springer Berlin, New York. 5 See A. Wolf (1998): Transboundary Freshwater Dispute Database, Oregon State University.

6 Chapter 18 tentatively advocates that co-operation may be desirable in conformity with existing agreements and/or other relevant arrangements emphasising to take into account the interests of all riparian states concerned. (18.4.) The programme area Integrated water resources development and management recommends that riparian states consider where appropriate, the harmonisation of (national) water resources strategies and action programmes (18.10) by developing and strengthening as appropriate, co-operation at regional level (18.12). In addition, they could co-operate in the assessment of transboundary water resources, subject to prior agreement of each riparian State concerned (18.27). Protecting of water resources, water quality and aquatic ecosystems (C.), all States could develop international legal instruments that may be required to protect the quality of water resources, as appropriate, particularly for monitoring and control of pollution and its effects in (...) transboundary waters, and for control of accidental and/or deliberate spills in (...) transboundary water bodies (18.40). The tentative language as, for example, may or could co-operate and could develop instead of shall or will, and the use of as or where appropriate, characterises the language of Agenda 21 as a whole. In the case of transboundary water resources, however, states focus on their discretion and sovereignty rather than on the process towards attaining sustainable water management. 6 Hence, Agenda 21 provides no concise recommendation for choosing among the varying international institutions and instruments available for joint management, nor did it stress responsibility of respective states. It half-heartedly acknowledges the need for international co-operation in river basin organisations or other joint bodies that might offer opportunities for co-ordinating policies and management. 2.2 Negotiations on the Convention on the Law of the Non-navigational Uses of International Watercourses When Agenda 21 was discussed in 1991/92, negotiations on the International Convention on Non-navigational Uses of International Watercourses were ongoing, which probably explains the tentative language. As early as 1970, the UN General Assembly (UNGA) requested the International Law Commission 7 (ILC) to take up the study of the law of the non-navigational uses of international watercourses. At the time of the UNCED process, the ILC adopted on first reading a set of thirty-two articles in When the draft articles were sent to governments for eliciting their comments and observations, substantive legal principles governing the utilisation of international rivers and the protection of related ecosystems had been very controversial. The Draft Articles were approved on second reading by the ILC in 1994 and submitted to the UNGA for consideration by the states. In resolution 49/52, the UNGA invited states to present written comments and, at the same time, it proposed to establish a working group comprised of the UNGA Sixth Committee to elaborate the text for a convention. Due to ongoing controversies, the Working Group could not accomplish this task, and the final text, which was the result of the second session of the Working Group, was not sub- 6 See Mostert; van Beek et al. (1999): River Basin Management and Planning, Keynote paper for the International Workshop on River Basin Management, The Hague October 1999, The Hague. 7 Resolution of 8 December 1970.

7 mitted to the UNGA until It took more than 25 years for the Convention to come before the General Assembly for adoption on May 21, A majority of states voted in favour (103 in number), which indicates that the rules embodied in the convention were acceptable; only three states voted against (Burundi, China and Turkey) and 27 abstained 8. The number of ratifications necessary to bring the convention into force was set at a level of thirty-five 9 which was rather modest in comparison with the number of UN members and the positive votes. However, to date 10 only 8 states agreed to the terms by 20 May 2000 of this first global treaty that focuses on regulating the use of international watercourses (i.e. Finland, Hungary, Jordan, Lebanon, Norway, South Africa, Sweden and Syria; 10 more states had signed). Although the 103 affirmative votes show that the Convention is generally accepted and indicates broad agreement, it has been argued that the convention has not successfully addressed recent environmental challenges, and it is considered a weak legal instrument for resolving conflicts. In the following, major controversies will be displayed and discussed in turn: The physical scope of applicability The framework character, its relation to other watercourse agreements and the rights of states Equitable and reasonable utilisation and the obligation not to cause significant harm Co-operation Exchange of data and notification procedure Environmental provisions Settlement of disputes Physical Scope of Applicability of the Convention The geographical and hydrological area within which the Convention is operative is defined by the term international watercourse, a system of surface waters and ground waters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus (...) parts of which are situated in different States (Article 2(a),(b)). This definition replaced the early use of the drainage basin concept of the Helsinki Rules which was supported by some countries as the most scientific and rational context for agreements. Other countries feared that the geographical implications of the term drainage basin could open the way to undue restrictions on their sovereignty over their territory. Instead, they favoured a much narrower approach based on definitions which are used in earlier treaties on river navigation and which relate to the main surface water channel of a river. The term ap- 8 Abstentions: Andorra, Argentina, Azerbaijan, Belgium, Bolivia, Bulgaria, Colombia, Cuba, Ecuador, Egypt, Ethiopia, France, Ghana, Guatemala, India, Israel, Mali, Monaco, Mongolia, Pakistan, Panama, Paraguay, Peru, Rwanda, Spain, Tanzania, Uzbekistan. 9 The figure was debated and sixty ratifications were proposed similar to the UN Convention on the Law of the Sea November 2000.

8 plied excludes not only tributaries, but also other components such as confined ground waters because they are not connected with surface waters so as to constitute a unitary whole. 11 The term common terminus intends to prevent two single river basins which are connected by an artificial canal from being seen as a single watercourse, and eventually extend the geographical scope and the states to participate in agreements. There remain considerable doubts that activities of states on land could be totally ignored or excluded from the scope of a legal regime of an international watercourse because decisions on land use affect water availability as well as water quality. A drainage basin (or watershed) may, however, come into play as an area where a harm causing activity is carried out and land-sided non-point pollution sources requires regulation. It has been mentioned that any effective control, for instance, of water pollution requires sustainable land use practices. However, despite these failings, the convention does not confine the obligation to prevent pollution only to activities taking place on a watercourse The Framework Character of the Convention, its Relation to Other Watercourse Agreements and the Rights of States The Convention is considered to be a framework convention which is somehow different as applied, for example, in the context of the Convention on Climate Change or the UNECE Convention dealing with transboundary rivers and international lakes. The term usually applies to a treaty which needs further elaboration and specifications in annexes or protocols. The development of those dynamic instruments usually takes place through e.g. meeting of the parties to agreements or river basin organisations established by the conventions themselves. Furthermore, the Convention, while encouraging states to consider harmonisation, does not prevent states from departing from its general principles. In actual fact, the present framework Convention does not affect in any way existing watercourse agreements, and the parties are free to deviate. The provision has been criticised for the reason that it will have no impact on the many already existing watercourse agreements, at the same time depriving the Convention of its normative function. This was the result of painstaking negotiations between states that were parties to already concluded agreements, and those who favoured that the Convention supersede any preexisting agreements if they were in conflict with its basic principles. The former regarded the Convention as a potential threat, as their application to the Convention could have upset an already established balance. 12 On the other hand, states that were not parties to agreements that applied to a whole or only parts of a watercourse to which they were co-riparians opposed the amendments that would except existing agreements from being applied to the Convention. Despite these legitimate concerns, Article 3(3) allows that watercourse states may enter into one ore more agreements (...) which apply and adjust the provisions of the present articles to the characteristic and uses of a particular watercourse or part thereof. 11 See the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992) which goes beyond the traditional definition as it encompasses a number of different components through which water flows both on and under the surface of land including rivers, lakes, aquifers, glaciers, reservoirs and canals. 12 The existence of more than 2,000 legal instruments explains why many participating states were concerned.

9 However, if agreements only cover parts of a watercourse, states are not allowed to adversely affect uses by other states without their consent. In addition, non-parties are protected in so far as the Convention explicitly mentions that their rights and obligations would not be affected by an agreement between other states on a watercourse. This is particularly important since Article 4 provides different rights to states for participation. It considers participation in two kinds of agreements: (a) Agreements that apply to an entire watercourse where all states on a watercourse are entitled to participate in negotiations and to become party to the agreement in question. (b) Agreements that apply to a part, to a particular project, programme or use. The right of participation is not as strict as in the former case, because some states successfully interfered as they did not wish to include in the negotiations third states sharing that watercourse, or may prefer that those other states not become parties to the agreement. 13 The provision allows the exclusion of states which are affected by hydraulic works, which may later give rise to disputes Equitable, Reasonable Utilisation (Article 5) and the No-harm Principle (Article7) These Articles are the cornerstone of the Convention and were heavily debated, reflecting the tension between utilisation and protection: Article 5 establishes the principle of equitable and reasonable utilisation, Article 6 defines the factors relevant to determining equitable and reasonable utilisation, and Article 7 enunciates the obligation not to cause significant harm. While upper riparian countries wished to strengthen the principle of equitable and reasonable utilisation, mostly lower riparians wished that Article 7 may overrule Article 5. In addition, it was felt that principles of international environmental law, e.g. sustainable development and protection of environment/ecosystems, should be considered in Article 5. They partly succeeded and Article 5(1) adopted reads as follows (with the amendments underlined): Watercourse States shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed (...) with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interest of the Watercourse States concerned, consistent with the adequate protection of the watercourse. Equitable participation in the use, development and protection of an international watercourse was accepted as a new concept emphasising the duty to co-operate (Article 5(2)). Article 6(1) includes a non-exhaustive list of factors to be taken into account for determining equitable and reasonable utilisation 14, which is regarded as insufficient. While some states wanted reference to the contribution to the watercourse by each state, others favoured mentioning the availability of alternative water resources, the needs of future generations or that basic human needs would gain precedence over all other factors. The lack of giving priority to humans needs is reinforced by Article 10(1), which provides that no use enjoys inherent priority in case they are conflicting. 13 Stephen C. McCaffrey; Mpazi Sinjela (1998): Current Developments. The 1997 United Nations Convention on International Watercourses, The American Journal of International Law, Vol. 92, p The term equitable share of the Helsinki Rules was abandoned.

10 The obligation not to cause significant harm (Article 7) was the most controversial one: upstream states felt that it would create an unacceptable restriction on the principle of equitable utilisation; downstream together with environmentally-minded states favoured that the noharm rule should override Article 5, and argued that the standard of due diligence would not be strict enough. The adopted provision made reference to an obligation that all appropriate measures should be taken to prevent the causing of significant harm without specifying them, but did not follow that Article 7 should supersede Article 5. However, as McCaffrey et al. (1998) mention, the obligation is not a strict one: it is an obligation of conduct rather than an obligation of result, 15 i.e. significant harm is not per se prohibited, but state responsibility refers to a harm that stems from a negligent conduct attributable to the causing state. 16 The harm causing states are required to eliminate or mitigate such and, where appropriate, to discuss the question of compensation (Article 7(2)). The latter is of particular relevance because compensation, in case harm is neither possible to be eliminated nor mitigated, is a means of balancing interests. It would be calculated by reference to the damage as well as to the benefits deriving from the new use. The concept of compensation is not restricted to a direct state-to-state interaction. 17 Instead, foreign victims of a harmful activity have a right to claim compensation or other relief, and are granted access to judicial or other procedures in states where the harmful activity was carried out (Article 32). Tanzi (2000) comments on the non-discrimination Article 32 that it also applies in cases where private persons are under a serious threat of suffering transboundary harm. 18 This would enable potential foreign victims to participate in the legislative and/or administrative prevention process no less than national residents. 19 However, to make Article 7 operative, the significant threshold needs to be defined to provide guidance for assessment and to ensure that the general rules of state responsibility can be applied. Concrete standards and precise parameters with regard to a specific watercourse must be elaborated through co-operation of the co-riparians. Be it as it may, general standards such as best available technology and/or best environmental practices could have been included, but were turned down by technologically less developed states to avoid excessive burden Co-operation Co-operation is the essential feature of the whole Convention and is enunciated in Article 8 as the principle of a general obligation to co-operate; it is emphasised in Articles 5 and 7, set out by the exchanging of data and information, on notification, consultation and negotiating planned measures: it is part of protection, preservation and management and on harmful 15 McCaffrey and Sinjela (1998), p See Attila Tanzi (2000): The Relationship between the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Nonnavigational Uses of International Watercourses. Report of the UNECE Task Force on Legal and Administrative Aspects. 17 Tanzi (2000), p Tanzi (2000), p See OECD (1976): Environment Directive, Equal Right of Access in Relation to Transboundary Pollution.

11 conditions and emergency situations. However, there are some weaknesses: there is no provision that makes co-operation compulsory for the purpose of prevention, control and reduction of transboundary impact. It only demands consultation with the affected state, to eliminate or mitigate such harm and, where appropriate, to discuss questions of compensation (Art. 7(2)). Contrary to, for example, the UNECE Convention and the SADC Shared Watercourse Systems Protocol 20, it does not provide for compulsory institutional co-operation. Watercourse States may consider the establishment of joint mechanisms or commissions (Article 8(2); see also Article 24). Unlike the Convention, the UNECE Convention provides a clear obligation for co-riparian states to establish joint bodies by agreement, where all consultations are to be conducted. 21 This issue has reached priority in the First Meeting of the Parties to the UN- ECE Convention, when the Work Plan considers providing assistance in setting up joint river and lake commissions. 22 Although this may be desirable for many reasons, the issue at stake is the nation-states sovereignty in relation to institutionalised co-operative forms Exchange of Data and Notification Procedure The Convention requires co-operation in the regular exchange of data and information in particular hydrological, meteorological, hydro-geological and ecological nature and related to water quality as well as related forecasts (Article 9(1)). The obligation of exchanging data and information is rescinded in case they are vital to national defence or security (Article 31). A US proposal was rejected that intellectual property rights (i.e. commercial and industrial information) give reason to limit the obligation of exchanging data. While the duty to cooperate in exchanging data has overriding relevance over unilateral interests of economic value, the subjective terms national defence and security were not defined in such a way to prevent abuse. 24 Articles 11 to 19 set out a consultation procedure for planned measures that may have adverse effects on watercourse states. The notification procedure refers to situations where states intend to implement new measures (Article 12) and if states have reasonable grounds to believe that another watercourse State is planning measures that may have significant adverse effect upon it (Article 18(1)). The fact that a majority of states agreed to the obligation of prior notification shows that states have rejected the notion of unfettered discretion within a state s territory. Criticism centres around the fact that a state that intends to implement measures has no obligation to notify all watercourse states but all potentially affected ones; that there are no legal consequences mentioned in case watercourse states do not comply with the general provision on the exchange of information, or in the case a state does not respond to a 20 See 21 Article 9 of the UNECE Convention comprises a non-exhaustive list of functions of joint bodies. 22 Cited in Tanzi (2000), p The India-Nepal Treaty on the Mahakali River provides that both parties shall reserve their rights to deal directly with each other on matters which may be in the competence of the Commission (Mahakali River Commission). Tanzi (2000), p Evidence suggests that data on water are treated as security issues.

12 request for notification; the lack of substantive definition as to what type of information is to be submitted; the absence of an indicative list of types of measures that would require consultation Environmental Provisions In making an international watercourse the geographical and hydrological reference point, the Convention provides for protecting and preserving the ecosystems of international watercourses (Art. 20). As in the case of the term international watercourse, states wanted to avoid restrictions on their territorial sovereignty by extending the boundaries of a watercourse s ecosystem beyond what they regarded as acceptable. Therefore, this term was preferred over environment which was considered too broad. It has been argued from an environmental protection perspective that the absence of any explicit reference to the interaction between water and other environmental components would weaken the protection of a watercourse and its ecosystem. In addition, there is no obligation for an Environmental Impact Assessment (EIA), and states are only obliged to provide the result of any EIA if conducted. 26 However, the Convention indicates an increased emphasis on co-operation, which has led to the creation of a list of potential pollution abatement measures that states, at the request of one of them, could consult on. Opposition to this amendment came from states that mentioned the eventual non-availability of techniques due to regional variations in technological capabilities. More importantly, the provisions for protection and preservation show that the obligation does not depend on whether significant harm is caused to co-riparian states, but that protective measures may be necessary even if no pollution is caused to states. It might be surprising that the Convention mentions in particular the protection and preservation of the marine environment (Article 23) which certainly goes beyond the scope of an international watercourse convention. It was amended to foster co-operation between watercourse states and other states that may not share the watercourse Settlement of Disputes The most thoroughgoing step was made in defining procedures for the settlement of disputes. First of all, the Convention, and international law in general, imposes an obligation to prevent conflicts and settle disputes by peaceful means. While Article 9 provides that conflicts are to be prevented by exchanging data and information, communication and consultations, the parties, in case they cannot reach agreement by negotiation requested by one of them, may jointly seek the good offices of, or request mediation or conciliation by, a third party, or make use, as appropriate, of any joint watercourse institutions that may have been established by them, or agree to submit the conflict to arbitration or the International Court of Justice (Article 33(2)). If parties fail to achieve the settlement of disputes by any of these means, then a state unilaterally has recourse to an impartial fact-finding commission. It will be composed of one member appointed by each party and a third person nominated by the parties to the dis- 25 E.g. construction of dams and other hydraulics works beyond a certain scale. 26 See the ESPOO Convention (1991) which sets standards for transboundary Environmental Impact Assessment.

13 pute. In order to prevent delays or frustration with the process, the text provides that the chairperson be appointed by the Secretary-General of the UN. If a party refuses to appoint its own member, the Secretary-General appoints a person not having the nationality of any of the two parties. The commission, whatever it will be, sets forth its findings and recommendations to foster an equitable solution. Parties are not obliged to adopt or implement the report. Nevertheless, this provision was heavily opposed by some states which wanted to maintain the principle of free choice of means. The meaning of the independent fact-finding commission is not very clear, because arbitration and judicial settlement are binding in nature, and regarded as a last resort. It is, however, agreed that the variety of mechanisms available diplomatic and judicial - to the parties ensures that wherever there is a will, disputes can be solved peacefully. 3 Summary and Recommendations for Agenda RIO+10 International water law as codified in the Convention provides the general principles that foster co-operation among states, if there is political will to co-operate. It provides a sufficient framework for negotiations and the settlement of disputes, and the deficiencies mentioned previously neither impede the elaboration of multilateral or bilateral agreements for sustainable use of international waters nor do they prevent multilateral and unilateral activities for their protection. 27 However, the Convention does not contain any provision for financial or technical assistance to countries to ensure that e.g. efforts for collecting and assessing data or monitoring can be achieved. While such provisions have been included, for example, in the Law of the Sea Convention, there is no consideration of such a mechanism. As one commentator mentioned, it is not a question of money, but of technology transfer and institution building. There is a need for multiplying model successes of co-operation. State sovereignty is a (potential) stumbling block to regional co-operation, and solutions to shared waters must respect national sovereignty, if not agreed otherwise. Not surprisingly, during CSD-6 a paragraph was controversially debated that intended to encourage riparian states to co-operate on matters related to international watercourses. Some states mentioned that CSD would not have the expertise to address these complex legal issues which were part of a separate negotiation forum. However, delegates agreed that appropriate arrangements (preferred by EU member states) and/or mechanisms (preferred by the G-77/China) relevant to effective development, management, protection and use of water resources should be taken into account, considering the interest of all riparian states concerned. The text encourages states to establish, where appropriate, organisations at river basin level for implementation of water management programmes. Governments may formulate and publish major water policy goals, objectives and principles in accordance with specific characteristics of each country as added by the G-77/China, and the EU recommended that the Global Environmental Facility (GEF) might consider support. 27 Empirical evidence suggests that ongoing unresolved disputes over the allocation of the waters of e.g. the Nile, the Jordan and the Euphrates-Tigris rivers, rely more on other political factors that contribute to instability than on controversies over water.

14 Agenda RIO+10 The few ratifications achieved to date reflect that major controversies are pending, although a weighty majority of states agreed to the general provisions. RIO+10 might encourage states into considering ratification. There are already some facilities to support riparian states in negotiating river agreements and designing joint bodies such as the working programme of the Parties to the UNECE Convention on the Protection of Transboundary Watercourses and International Lakes, or the working group established during the World Water Vision. Financial mechanisms may support the development of appropriate and specific joint organisations, programmes and projects, and impartial third parties may facilitate and take the lead in multilateral negotiations if demanded, and diplomatic efforts in contested river basins, based on analyses of hydro-political hotspots, are needed to break the impasses between states in case there are serious regional security implications. Discussing the following items may be conducive towards co-operative efforts: Co-operation begins with good data and information combined with effective systems for collecting, processing and managing information. The design of joint management bodies must allow regional co-operation in an area of low politics (water) and avoid the supranational threat of undermining sovereignty of the states concerned. Objectives that are narrow in focus and pragmatically approached may foster co-operation and create trust, more than optimal solutions. Regional co-operation must be attractive to the participants by developing prospective outcomes that are preferable to unilateral activities (concept of benefit sharing). This is particularly difficult for situations where upstream and downstream states consider water use for extending irrigated agriculture, and elaboration of compensation models would be useful. Informal or formal networks may assist in developing equitable and sustainable solutions by providing technical expertise on e.g. best environmental practices or best available techniques.

15 References FAO (2000): New Dimensions in Water Security. Water, society and ecosystem services in the 21st century, Rome McCaffrey, S. C. / M. Sinjela (1998): Current Developments. The 1997 United Nations Convention on International Watercourses, The American Journal of International Law, Vol. 92, p. 99 Mostert, E. / E. van Beek et al. (1999): River Basin Management and Planning, Keynote paper for International Workshop on River Basin Management, October 1999, The Hague OECD (1976): Environment Directive, Equal Right of Access in Relation to Transboundary Pollution Scheumann, W. / M. Schiffler (Eds.) (1998): Water in the Middle East. Potential for Conflicts and Prospects for Co-operation, Springer Berlin, New York Tanzi, A. (2000): The Relationship between the UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses. Report of the UNECE Task Force on Legal and Administrative Aspects Turton, A. (2000): Water Wars in Southern Africa: Challenging Conventional Wisdom, in: Solomon and Turton (Eds.): Water Wars: Enduring Myth or Impending Reality. Africa Dialogue Monograph Series No. 2, Accord, pp UNECE: Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992) Wolf, A. (1998): Transboundary Freshwater Dispute Database, Oregon State University