|The UNECE Water Convention was adopted in 17 March 1992 and entered into force on the 6 October 1996. The Convention requires states to, ‘prevent, control and reduce transboundary impact, use transboundary waters in a reasonable and equitable way, and ensure their sustainable management’.Significant analysis has shown that the UNECE Water Convention and the UN Watercourses Convention do not contradict each other. The similarities between the Conventions are explored further throughout the UNWC Online User’s Guide. However, as would be expected from a regional vis-à-vis a global instrument, the UNECE Water Convention on the whole provides more detail than the UN Watercourses Convention. In particular, the obligation to establish joint agreements and related institutional arrangements is more pronounced in the UNECE Water Convention. A further difference between the two instruments is that the UNECE Water Convention provides for an institutional framework to promote its implementation. Such a framework includes a secretariat, working groups, meeting of the parties, and so forth. Over the course of the last twenty years, these institutional arrangements have proven highly effective in constantly assessing and strengthening the implementation of this framework instrument at the basin and national levels. In 2003, an amendment to the UNECE Water Convention was proposed to allow states situated outside the UNECE region to become parties to this Convention. This amendment has since been adopted by State parties to the UNECE Water Convention and will likely become operational in 2015.Given that both of these framework instruments are complementary, there is the prospect of having both Conventions in force at the global level within the foreseeable future, which offers significant opportunities to strengthen the legal architecture around international watercourses.
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Coordinated implementation of the UNWC and UNECE Water Convention
Critical recent developments for both Conventions – the rapid acceleration of ratifications to the UNWC supporting its subsequent imminent entry into force, combined with the adoption and intended operationalisation by the end of 2013 of the 2003 Amendment to the UNECE Water Convention opening it up to ratification by States outside the ECE region – has led some State parties and leading experts to evaluate the practical legal, policy and institutional relationship between the UNWC and the UNECE Water Convention. These preliminary evaluations are based on the following factual scenarios which incorporate the complementary aspects of both framework agreements:
- The UNWC is open to accession by all countries and, as of June 2013, counts 30 contracting states – 5 short of the number required for entry into force. The UNWC was adopted following an extensive process whereby all UN member states were invited to provide comments on its draft text; and permitted to negotiate on that text within the UN General Assembly. A vote – open to all UN member states – was taken upon adoption of the Convention, with 106 states voting in favour of the text to 3 votes against. From the beginning, the UNWC was drafted and negotiated at the global level and designed to become a universal instrument. The UNWC lacks provisions on governance mechanisms and there is no body mandated to oversee its implementation.
- The UNECE Water Convention has 39 parties covering almost the entire UNECE region. It was negotiated through an intergovernmental process under the auspices of UNECE and was adopted as a regional treaty. In force since 1996, the Convention offers a fully developed institutional structure to support implementation, and a wealth of knowledge and experience that would be useful for countries beyond the UNECE region. The Convention has been amended to become global, and would thus operate at the same level as the UNWC. It is expected that all UN member states will be able to join the Convention as of the end of 2013.
From a legal standpoint, based on their respective texts, the UNECE Water Convention has generally more detailed requirements than the UNWC. Yet, certain provisions in the latter supplement the former, e.g., those on planned measures and the factors relevant to equitable and reasonable use. Taken as a package, the two Conventions are widely seen to be complementary and mutually reinforcing. Wherever possible, countries considering accession to one or both of these global transboundary water Conventions should therefore look at the two legal instruments side-by-side.
From an institutional perspective, some preliminary conversations have begun to take place to discuss and analyse available options for ensuring the coordinated implementation of both Conventions in the short and long-term. Such discussions are vitally important given the likely prospects of both conventions existing as global treaties in force on the same subject matter of transboundary water cooperation in the very near future. Hence, the adoption of the UNWC as a global framework and the decision to open up the UNECE Water Convention offer a unique opportunity to establish a truly global transboundary water regime. At the same time, the imminent entry into force of the UNWC and the opening of the UNECE Water Convention call for a careful analysis of how to:
- Ensure that the two global transboundary water Conventions are implemented in a mutually reinforcing manner, so as to avoid duplication, exploit synergies, maximise the efficient use of resources, and promote the coherent development of international water law; and
- Capitalise on the global legitimacy of the UNWC and the 20 years of experience under the UNECE Water Convention towards progressively building a legally mandated, effective and truly global transboundary water regime.
An Institutional Options Discussion Paper has been developed which aims to support such an analysis by exploring three basic options for coordinating the UNWC’s implementation process with activities carried out under the UNECE Water Convention. The three main options are as follows:
- OPTION 1 – A formal institutional framework for the UNWC is created and the UNECE Water Convention secretariat is mandated to also service the UNWC parties.
- OPTION 2 – A formal institutional framework for the UNWC is created and serviced by a new UNWC secretariat, separate from the UNECE Water Convention secretariat.
- OPTION 3 – No formal institutional framework for the UNWC is created immediately following its entry into force.
It is crucial to note here that one particular option is not favoured over another.
Rather, in presenting these three options, the Discussion Paper aims to tease out the most salient strengths, weaknesses, opportunities and threats of each. This, in turn, might assist State parties and relevant decision-makers in formulating their own opinion as to the most preferred option. It is also accepted by the authors that a full spectrum of different institutional arrangements could unfold for the future implementation of the UNWC and its coordination with the UNECE Water Convention. However, it is envisaged that, by focusing on the three options noted above, the Discussion Paper captures the most salient positive or negative aspects of any potential option.
In this context, we invite those reviewing this Discussion Paper to consider some vital questions:
- How best to build on synergies, ensure coordination, and avoid duplication in the implementation of both Conventions?
- How can states capitalise on both the global legitimacy of the UNWC and vast experience under the UNECE Water Convention towards progressively building an effective, legally mandated, and truly global transboundary water regime?
- How might an institutional framework (formal or informal) address existing water law fragmentation at different scales, and what are the legal (substantive and procedural) practicalities that must be dealt with to ensure its formation?
- What steps would be needed to ensure that the respective parties to these Conventions receive the political, technical and financial support necessary to facilitate effective implementation?
Please find the Discussion Paper in the additional resources and please email any feedback to our contact email address. Please note that the views and main options presented are those of the co-authors alone and do not reflect the views or opinions of the State parties to the UNWC or the UNECE Water Convention.