The UN Water Conference and International Water Law

Tobias Schmitz: In a recent article in the International Journal of Water Resources Development, Professors Asit Biswas and Cecilia Tortajada argue that the upcoming UN Water Conference has not been built sufficiently on the legacy of the last UN Water Conference held in Mar del Plata in 1977. To what extent do you think that the UN 2023 Water Conference is building sufficiently on the legacy of International Water Law since 1977? 

Dr Mara Tignino:   Thank you. I will base my answer on the concept paper prepared by the Secretariat of the Conference and in particular the Interactive Dialogue # 4: Water for Cooperation, which reserves a strong role for two topics, i.e., transboundary cooperation and the protection of water during armed conflict, so I would say that the UN Conference is very important because it is a multilateral forum where, for the first time, it will be possible to discuss the protection of  water in times of armed conflict. There are currently some references to the work of the ICRC but also to the Geneva Principles on the Protection of Water Infrastructure . Therefore, compared to the 1970’s, the UN is more ready to accept that the issue of armed conflict is discussed in this arena.

Tobias Schmitz: Looking back to the period since Mar del Plata, pretty much all of international water law has developed since this period: the UN Watercourses Convention, the Helsinki Convention, the recognition of water, sanitation and a healthy environment as human rights. Therefore, we have a much stronger legal framework that we did at the time of Mar del Plata.

Mara Tignino: Yes of course, there have been many developments since then. Perhaps some elements of these developments can already be found in the Mar del Plata Action Plan in particular: if you look at the human right to water for instance, its foundations are often, amongst others, referred to the Mar del Plata Action Plan. Of course since then a lot has happened: the resolutions by the United Nations General Assembly and the United Nations Human Rights Council on the human right to water and the appointment of a Special Rapporteur on the Human Right to Water.  Moreover, two global conventions on transboundary water resources have entered into force, namely the Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the Convention on the Law of the Non-Navigational Uses of International Watercourses.

Tobias Schmitz:  I understand. Now if we go a bit deeper, and in particular from the point of view of Sustainable Development Goal 6, can we say that the development in international water law provide a solid base for the equitable and sustainable management of water and sanitation?

Mara Tignino:  There has of course been progress with the elaboration and signature of River Basin Agreements based on international water law, but if we look at the progress report on SDG 6.5.2, [the indicator that looks at the percentage of a transboundary basin within a country that is covered by a transboundary agreement (TS)], there are only 26 countries whose transboundary basins are  covered by a river basin agreement. So there is still a lot to be done. I would also like to call for attention to groundwater, as there is a real lack of transboundary agreements on shared aquifers in particular. It is important for the UN Water Conference to highlight the issue of groundwater resources and shared aquifers and ask to develop more transboundary agreements on these crucial resources. Most of our water supplies ultimately come from groundwater.

Tobias Schmitz: Although it is true that there are currently few transboundary agreements which explicitly focus on shared aquifers, we do also have some interesting examples: is it perhaps interesting from an academic perspective to look into these cases and draw lessons from them on how such agreements can best be supported?         

Mara Tignino: Yes, it is very important to engage in the sharing of practises and experiences: in Geneva we have the Genevese Aquifer Agreement, which was the first transboundary aquifer agreement, and this is a very good example of cooperation between the Canton of Geneva and France and the experts note that the parties were able to go beyond the concept of sovereignty and were able to agree that it was a common resource and that therefore a common solution to a common problem needed to be sought  - this was a development stimulated by the reduction of the water table in the 1970’s. Then of course an important case is the Guarani Agreement, which is one of the biggest aquifers, and then there is the project of the Geneva Water Hub and partners to help to develop a framework for the joint management of the Senegalo-Mauritanian aquifer. This is a very interesting example because we see the potential involvement of two River Basin Organisations, i.e., the OMVS and the OMVG. We do not know what will be the result of this process, but it is already notable in that these two river basin organisations are involved.

Tobias Schmitz: I read a paper recently which sketched the evolution of international water law and essentially arguing that originally international water law focused predominantly on the roles and rights of individual states which have shared water resources, and in particular, the reasonable and equitable use of shared waters. Over time, the paper argued, things have become more complex because the focus has moved away from for instance the development of infrastructure on shared watercourses, and more towards an environmental focus whereby ‘environmental flows’ and the protection of the river basin have become more prominent. Beyond this, from an exclusive focus on states, there has been an increased attention for the role of non-state bodies such as River Basin Organisations, actors in civil society, individual rights holders, etc. Would you agree with this assessment?

Mara Tignino: Yes, International Water Law is evolving, and although it is still the case that it is mainly focused on the relations between states, other actors are increasingly involved, and indeed both environmental law and human rights law have contributed to its evolution. There are different areas where local communities can intervene in the management of shared water resources, for example the participation of Water User Associations in River Basin Organisations, the participation of local communities in Environmental Impact Assessment Processes, and of course when transboundary water resources are located in areas where indigenous populations are living. This needs to be highlighted in the conference: international water law is not isolated but has to be informed by environmental and human rights law.                                           

Tobias Schmitz: As you just mentioned in fact, there are two River Basin Organisations actually involved in the process of [promoting the shared management of an aquifer shared by two states, so here we have not just states but River Basin Organisations being involved in agreements on shared water resources. Turning to the issue of the protection of water infrastructure in times of armed conflict and the huge potential of water to stimulate international cooperation: we have the Geneva principles for the protection of water in armed conflict, what is the potential for this aspect to come out in the UN Conference?        

Mara Tignino: I am quite confident that this issue will be taken up, as there are already aspects that are referred to in the text.  However, the idea of ‘cooperation’ needs to be qualified: it should not just be advantageous to one of the parties. We need to emphasise that such cooperation must be based on international law and based on reasonable and equitable use. Cooperation has a specific meaning and this needs to be elaborated in the conference, especially drawing from international conventions. The concept otherwise is not very meaningful.    

Tobias Schmitz: Very interesting , it seems as though you are quite confident about the potential for a good outcome, even if the definition of cooperation needs to be based strongly on international law. Mara, thank you very much for these valuable insights, and we look forward to following you in New York!