Reflection on the 1st day sessions – Key Messages Three Technical Sessions: International Water Law and Governance by Juan Carlos; Helsinki Water Convention – History, main provisions; institutional structure; current activities; and lessons learned by Sonja; and Water treaties: how to draft and negotiate international agreements on transboundary waters by Sergei Examples of River Basins Negotiations from pan-European region

International Water Law and Governance by Juan Carlos At the global level we have about 276 transboundary river basins and about 60% lack cooperative (legal) mechanisms for their management; At the regional level e.g. IGAD has about 12 transboundary basins and only one (Lake Victoria) has the legal framework for its management; Together with these, we have issues of Hydro hegemony – Power dynamisms and relationships between upstream and downstream countries; IWL is therefore a framework of addressing these type of issues and dichotomies; Two global water related framework conventions – the 1997 UNWC entered into force in 2014 and so far has 37 Countries who have ratified it and the 1992 Helsinki Convention with 41 Countries ratifying it; These two Conventions provides complementarity to each other; Since these two are framework conventions, their fundamental principles can be applied and used at Regional; Basin & Sub Basin; National and Sub National levels; Their main objectives is to promote cooperation and strengthening transboundary water governance hence peace and security and development;

Legal Analytical Framework/Model - 5 main elements Scope – Who are the Parties and its spatial jurisdiction of its application; Substantive rules – Norms and obligation for Parties – has 3 key pillars: Equitable and reasonable utilization; Not to cause significant harm to your neighbors (an obligation of due diligence); and Protection of the environment/ecosystem. These 3 pillars reinforces each other; Procedural rules – how do Parties share information/data; notification and consultation on planned measures; EIA; Joint Monitoring; and Stakeholders consultation; Institutional mechanisms – key for implementing procedural and substantive rules e.g. River Basin Commission; Authority; Committee etc Dispute settlement

General comments during the discussions The reasons behind few countries having ratified the UNWC; What happens if one riparian country is a signatory to the IWL and the other one is not, will the provisions of the IWL apply to the one which isn’t a signatory in the context of a shared river basin? The customary international law and as far as substantive rules are concerned (do no harm; equitable and reasonable utilization as well as protection of the environment) these requirements is biding to even the country that is not a signatory; The issue of absolute sovereignty – is an old fashioned approach and is being replaced by new approaches such as benefit and cost sharing and water is one of those natural resources that is being considered to demonstrate this new approach; Benefit and cost sharing brings much more comfort as far as demonstrating equitable and reasonable utilization of transboundary water resources is concerned; The climate change challenge is putting more additional pressures towards embracing integrated and transboundary approaches in natural resources management;

Helsinki Water Convention – History, main provisions; institutional structure; current activities; and lessons learned by Sonja History Adopted in Helsinki in March 1992; it took only 2 years to negotiate; though the cooperation had been going on since the 1967 when the countries established a Committee on Water Problems; Put in place Special Sessions; Experts; etc; Entered into force in 1996; amended in 2003 and opened up for other countries outside Europe in 2016; Why was it opened up to the World beyond Europe? Some neighboring countries had shown interest in joining; To promote joint solutions to common challenges; To promote learning from other regions; To broaden political support for transboundary cooperation

Helsinki Water Convention – Main provisions and institutional structure Main objectives, obligation of the Convention is more or less similar to the UNWC – but put more emphasis on prevention of transboundary impacts; the Principle of Cooperation is quite strong; as well as the Protection of the Environment; This is because it was developed when a number of environmental negotiations were taking place; at the time water pollution was a big problem in the region; and it was the time that the Soviet Union was breaking-up; Institutional structure for the implementation of the Helsinki Convention includes: Meeting of the Parties; the Bureau; the Secretariat; Implementation Committee established in 2012 for dispute prevention;  

Helsinki Water Convention – Current activities and lessons learnt Current activities and programme of work for 2016-2018 includes: Water-food-energy-ecosystem nexus; Adapting to climate change in shared basins; Supporting benefit assessments to realize the potential value of transboundary water cooperation Lessons learnt: Start with cooperation at technical level and build on the already existing co-operations, documents and strategies in the region; Implement practical measures; Focus on issues of common interest and constructive dialogue and isolate some sensitive issues or aspects that might polarize the countries and deal with them in the future; Timeliness is critical (the 1992 deadline was agreed upon earlier hence countries were working towards meeting that deadline); Involvement of experts; effective and unbiased Bureau, good chair, flexibility and firmness;  

Water treaties: how to draft and negotiate international agreements on transboundary waters by Sergei Focused on 4 main themes   Law of treaties, Agreements on transboundary waters, Legal drafting, Negotiation and negotiation skills – as a process of reaching an agreement and a mutual beneficial agreement

Law of treaties   A treaty is an Agreement, Protocol, Charter etc legally binding and is governed by the International Law; The principle document guiding Law of treaties is the 1969 Vienna Convention; The adoption of the text of the treaty depends on the number of negotiation Parties, can either be through consensus or vote; Means of expression of consent of the treaty is through – signing, ratification and accession; Fundamental rule of international law – all treaty provisions must be implemented in good faith. Treaty scope and application – binding in terms of jurisdiction and territory;

1. Law of treaties   A treaty is an Agreement, Protocol, Charter etc legally binding and is governed by the International Law; The principle document guiding Law of treaties is the 1969 Vienna Convention; The adoption of the text of the treaty depends on the number of negotiation Parties, can either be through consensus or vote; Means of expression of consent of the treaty is through – signing, ratification and accession; Fundamental rule of international law – all treaty provisions must be implemented in good faith. Treaty scope and application – binding in terms of jurisdiction and territory; Interpretation of the treaties is quite important because significant number of conflicts/disputes arises as a result of misinterpretation. Vienna Convention states that the treaty shall be interpreted in good faith; Treaties does not create obligations or rights for a third party without its consent. However, there are exception to this: a third party accepting in writing; customary international law is binding nevertheless……

2. Agreements on transboundary waters Usually bilateral, multi-lateral or boundary agreements including water issues; Concerning specific international watercourses; On specific issues, water use or project; Framework treaties supported by additional Protocols focus on legal matters (e.g. SADC); Discussions: What will happen if one Country is not willing to participate in making an agreement – you can’t force unwilling country to participate in a process because of sovereignty issues but you can encourage, leave the door open for them etc; Reservations is part of the law of treaties and is generally allowed in the International Law, though increasingly not being used;  

3. Legal drafting Key parts of the treaty includes: Title - should be short and precise; Preamble - useful but not obligatory and not legally binding provisions; Main text - heart of the treaty, has table of content for large multi-lateral conventions, terms and definition – a must to avoid disputes over interpretation; headings; articles and paragraphs etc Final clauses – relations to other treaties; reservations usually not allowed; amendments; adoption and amendments of Annexes, signing, ratification, entry into force, termination, denunciation etc; Signature block; Annexes (if necessary)  

3. Legal drafting cont……… Drafting process is relatively a long process (1 – 3 years); the preparation of the draft text is done usually by a neutral expert(s);   Step 1 – to determine needs and interest of the Parties; Step 2 – identify legal audit – analysis of all relevant existing treaties; Step 3 – plan of work and expert consultation; Step 4 and subsequent steps – negotiations, revisions and finalization Step 5 – Adoption

3. Legal drafting cont……… Key rules in drafting Not absolute precision; Keep it simple; See the text as a whole; Consistency in terms of terminologies, numbering etc; Flexible provisions sometimes recommended; Do not invent the wheel; Use a language that you are comfortable with; Avoid ambiguity (there are constructive ambiguity), use shorter sentences, avoid unnecessary words especially adjectives; limit cross references; Avoid ‘and/or’;  

4. Negotiation and negotiation skills Interactive process to reach an agreement acceptable to all Parties (this is the ideal); Rationale – fairness/equity in water use; effective and sustainable water management; from potential conflict to cooperation, peace and security and development; to accommodate diverse interests and perspectives; and during the negotiation process stakeholders gain the ability to influence and shape decisions; 4 Rs – Rewards, Risks, Rights and Responsibilities – refers to the IUCN’s toolkit on “Negotiate”;

4 Examples of River Basins Negotiations from pan-European regions Chu-Talas Basin shared between Kazakhstan and Kyrgyzstan – upstream/downstream relationship; they established a river basin commission to spearhead the agreement on water allocation; working groups established – on climate change adaptation issues etc; Drin River Basin on Western Balkan MoU put in place and foresee an institution structure to promote dialogue and a plan of action; Dniester Basin shared by Moldova and Ukraine emphasize on basin wide transboundary management and cooperation; Neman Basin shared between Belarus and Lithunia (and Russia to some extent) – slow progress in terms of developing climate change programmes.

Key lessons from these 4 examples Start with cooperation on technical issues; Do not aim at perfection; Put in place National Champions to help steer the process; Use regional organizations as much as possible as entry points; It is a long process; Going forward, the SDG with its indicators on transboundary water cooperation will give impetus to the transboundary water cooperation processes.