pat wouters kigali keynote talk 27 oct 2011 last

UN

ESCO

IHP-

HEL

P Ce

ntre

for W

ater

La

w, P

olic

y &

Sci

ence

Climate Change and its Implications for Sustainable Development and Cooperation in the Nile Basin – Threats and Opportunities to Nile Basin Cooperation

3rd Nile Basin Development Forum Kigali, Rwanda

26-28 Oct 2011 Professor Dr Patricia Wouters

UN

ESCO

IHP-

HEL

P Ce

ntre

for W

ater

La

w, P

olic

y &

Sci

ence

Coping by Cooperating:Addressing transboundary dimensions of climate change - Dynamic Cooperation

3rd Nile Basin Development Forum Kigali, Rwanda

27 Oct 2011 Professor Dr Patricia Wouters

IHP-HELP Centre for Water Law, Policy and Science | under the auspices of UNESCO Slide | 3

1. Global Water & Climate Change Transboundary Challenges

2. Rule of Law as platform for Dynamic Cooperation3. Responding to the Challenges

Coping by Cooperation


The Global Water Challenge

No development without water

1.2 billion without safe drinking water and2.4 billion without sanitation

wideningwater gap

Only a fractionreadily available

1.4 billion km3 ofwater on Earth

Growing issues of availability, access, and addressing conflicts-of-use


Availability and Access issues: Too little…


Availability and Access issues: too much


Global water security threat

C. J. Vörösmarty et al., 'Global Threats to Human Water Security and River Biodiversity', 467 Nature (2010) 7315, 555.

• Water Security – ‘the state of having secure access to water; the assured freedom from poverty of, or want for, water for life.’[P. Wouters, 2005]

• 80% of population exposed to high levels of threat to water security…


Competing Security Challenges| the FEW Nexus1 bn suffer from hunger

2.4 bn lack access toimproved sanitation

0.9 bn lack access to safe water

1.5 bn without accessto electricity

2.5 bn without access to modern forms of energy

30-50% in demand by 2030

40% in demand by 2030

40% in demand by 2030


Water Security: competing demands

Availability

Access

Addressing Conflicts-of-

use

WSAF:1. Legal

framework2. Informed by

science3. Dynamic

What?

Who?Why?


Water | Competing (in)securitiesWater Security: “the availability of an acceptable quantity and quality of water for health, livelihoods, ecosystems and production, coupled with an acceptable level of water-related risks to people, environment and economies” [Grey and Sadoff 2007]

Food Security: “when all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life” [WHO 1996]

Energy Security: “the uninterrupted physical availability [of energy] at a price which is affordable, while respecting environment concerns” [IEA 2011]

Water

WaterSecurity

FoodSecurity

EnergySecurity


Conflicts-of-use - Water security challenges

BBC News


Conflicts-of-use over water?

Hydro-diplomacy?


"Water knows no frontiers; as a common resource it demands international cooperation”Principle XII of the European Water 1967

“Fierce competition for freshwater may well become a source of conflict and wars in the future.” (Annan, 2001)

“But the water problems of our world need not be only a cause of tension; they can also be a catalyst for cooperation [...] If we work together, a secure and sustainable water future can be ours.” (Annan, 2002)

Water knows no frontiers


Platform for Cooperation = The Law of Nations

“to maintain international peace and security … and ... the fundamental freedoms of all … “

UN Charter


International Water Law / Law of Nations

Law of nations

Rule of law

Water security Hydro-solidarity

Transboundary waters

Hydro-diplomacy


Building Certainty: Legal Analytical Framework

Substantive RulesEquitable and

reasonable use

Implementation Procedural Rules

Institutional mechanisms Dispute avoidance

/settlement

Scope

Defines rights & responsibilities of users

Ensures compliance and accommodates changes

in circumstances

What uses?What waters?What users?


Building Certainty: Legal Analytical Framework

Key Elements Details

1. Scope • Legal reach (what waters?)• Definitions (watercourse; uses)• Parties (States; RIEOs)

2. Substantive Rules • Legal duties & entitlements (equitable and reasonable utilisation; due diligence; protection)

• Rules of substance (general or precise)

3. Procedural Rules • Rules of procedure (duty to cooperate as bridge)• Notification / exchange of information

4. Institutional Mechanisms

• Joint bodies (RBOs)• Conference of the Parties (MoP)• Organisations / organs (Ministerial level; other)

5. Dispute Settlement • Dispute avoidance (consultation)• Dispute settlement (Art. 33 UN WC; other)• Compliance verification (reporting; facilitation)


1. Uncertainty2. Increased

water stress in all sectors

3. Impact of external forces

• High uncertainty:– flow of the Nile– Projected rainfall patterns &

influence of complex water management and water governance structures

– Impact of sea-level rise– Temperature rises impact

with decreasing crop water-use efficiency

– Other++

Climate change impacts on the Nile (IPPC)


Climate Change – addressing uncertainties

Uncertainty- Climate change++

Certainty - Legal

framework


Treaty / customary law:1. Substantive rules

(equitable and reasonable utilisation)

2. Procedural rules (duty to notify and exchange information)

3. Institutional Mechanisms (remit)

Building certainty: Rule of Law


Rule of law: Universal Treaty: 1997 UN WC

• 1997 UN Watercourses Convention (AFW)

– Scope: Art 1– Substantive rules: Art 5-7, 10– Procedural rules: Art 8, 9, 11-19– Institutional mechanisms: Art 8, 24– Dispute resolution: Art 33

• Evolution from both customary and treaty law – Identifiable corpus of substantive and procedural

rules (codification and progressive development)


Art. 5 UNWC - Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal utilization thereof and benefits therefrom consistent with adequate protection of the watercourse.

Art. 7 UNWC - 1. Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States.2. Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.

Substantive Rule: Equitable and Reasonable Use


Art. 6 UN WC - Factors relevant to equitable and reasonable utilization1.Utilization of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including:(a) Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character;(b) The social and economic needs of the watercourse States concerned;(c) The population dependent on the watercourse in each watercourse State;(d) The effects of the use or uses of the watercourses in one watercourse State on other watercourse States;(e) Existing and potential uses of the watercourse;(f) Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect;(g) The availability of alternatives, of comparable value, to a particular planned or existing use.

Art. 6 (2) In the application of article 5 or paragraph 1 of this article, watercourse States concerned shall, when the need arises, enter into consultations in a spirit of cooperation.

3.The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

Implementing the Rule of Law


Art. 5(2) UNWC - Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner.Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present articles.

Art. 8 UN WC General obligation to cooperate - Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse

Duty to Cooperate – the BRIDGE


“…cooperative action by watercourse States is necessary to produce maximum benefits for each of them, … In short, the attainment of optimal utilization and benefits entails cooperation between watercourse States through their participation in the protection and development of the watercourse.” UN WC commentary

Substantive• shall cooperate

Procedural• cooperative actions

Dynamic Cooperation in practice


1. Substantive Rules-- equitable and reasonable

utilisation

2. Procedural Rules-- exchange information -- duty to notify-- procedures for planned

measures

3. Institutional Mechanisms

-- River basin organisation

Dynamic Cooperation on the Nile


The only thing that will redeem mankind is cooperationBertrand Russell

Addressing Water Security: Dynamic Cooperation


• We should view every regional watershed or aquifer as an opportunity for stronger international cooperation.

• Access to reliable supplies of clean water is a matter of human security. It’s also a matter of national security.

• There could be huge political and economic benefits from regional water diplomacy.

• Water is actually a test case for preventive diplomacy.

5 streams of action1. Capacity development (local,

national, regional)2. Elevate diplomatic efforts and

we need to better coordinate them

3. Mobilizing financial support4. Harness the power of science

and technology5. Broadening the scope of our

partnerships

Dynamic Cooperation: streams of action


Context for Adaptive Governance

Human

National

Regional

Int’l / Global

Politi

cal

Econ

omic

Soci

etal

Envi

ronm

enta

l

Scal

e

Disciplinary Interface


Governance and Dynamic Cooperation

Substantive rules

Procedural rules

Institutional mechanisms

1. accountability2. participation3. predictability4. transparency


Dynamic Cooperation in practice: H20

H• Hydro-

diplomacy

H• Hydro-

solidarity

O• Opinio

Juris

The H20 paradigm


Adaptive Governance Framework

• UN Charter• Treaty• Custom

Rule of law

• Structure• Mandate• Authority

Institution• Exchange

information• Notify• Process

Procedure

Dynamic Cooperation


Building Hydro-diplomacy - capacity tower

Water security

Regional & Global

National Capacity

Local Water Leaders


Addressing transboundary challenges

1. Dynamic Cooperation: rule of law --substantive rules + procedural rules + institutional mechanisms

2. Enhanced local capacity: local water leaders3. Communities of action: hydro-diplomacy +

hydro-solidarity approach


Invitation to Scotland as a Hydro-Nation

THANK YOU !Dundee

UNESCO Centre for Water Law, Policy & Science

Thank you!

www.dundee.ac.uk/[email protected]

www.glasgow2015.org

http://www.dundee.ac.uk/water

pat wouters kigali keynote talk 27 oct 2011 last

Education