1. E.J. Hollo Towards a flexible “law on water resources” - IUCN Academy 2011 - Prof. Erkki J. Hollo University of Helsinki

2. E.J. Hollo Introduction Global Water Integration is Vital – But is It Legally Feasible? Combination of environmental preconditions, climatic changes and human-related development Water resources, from a human viewpoint, both a necessity and dimension of threat The distribution principle and the requirement of equitable share are perhaps the most concrete approaches

3. E.J. Hollo Recognition of Scientific Data All water policies require a solid technological and scientific research data Legal rules require an analysis of knowledge of social structures, property rights and administrative bodies All elements are not predictable and therefore the data bases involve uncertainties

4. E.J. Hollo Fact Law does not in the end PRODUCE security or PROVIDE water if there is no water in the surface or in the ground. Also, a person, who is entitled to get safe water, may not in reality have water because no water supplier is available.

5. E.J. Hollo Part One Setting of Legal Principles and Goals

6. E.J. Hollo Determination of Goals and Principles/ Proposal A ”World Water Charter” would consist of –(1) a global concept of the protection of aquatic and marine resources –(2) the strengthening of the cooperation and liability principles in inter-state relations –(3) adoption of the water basin principle including groundwater –(4) development of water management law (essential!)

7. E.J. Hollo (1) Global Protection Principle All natural aquatic and marine resources including their biologic diversity shall be under the joint protection of all nations Application: Supra-national and regional protection programmes shall be based on reliable research and active participation of all nations concerned.

8. E.J. Hollo (1) Cont. Like air, water is a life-bearing medium. Therefore there is ambivalent relationship between the protection of the resource for ecological reasons and the need to provide water to humans. Selfish water management by nations and companies should be under true management control.

9. E.J. Hollo (2) Cooperation and liability regimes UNCLOS Environmental impact assessment Bilateral and regional treaties UN Convention 1997 EU Water Framework Directive

10. E.J. Hollo UN Convention 1997 Article 5 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.

11. E.J. Hollo Supranational law Water management principles The ILA Helsinki Rules 1966 and Berlin Rules 2004: The Helsinki Rules of 1966: basic topics with proposed statements: - Equitable and reasonable utilization - Obligation not to cause harm - Environmental protection - Requirement of notification of parties concerned

12. E.J. Hollo The ILA Berlin Rules The Berlin Rules take into account the development of bodies of international environmental law, international human rights law, and the humanitarian law relating to the war and armed conflict, as well as the UN Convention 1997. The Rules include within their scope both national and international waters to the extent that customary international law speaks to those waters.

13. E.J. Hollo UN Convention1997 Article 7 Obligation not to cause appreciable harm 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.

14. E.J. Hollo (3) The Water Basin Principle Hydrological unit Property and sovereignty rights CBD Article 3. Principle: –”States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

15. E.J. Hollo EC Water Policy WFD= Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. As far as the tools for the control are concerned, the first formal requirement is that all water resources within the EC shall be partitioned and designated into water basins.

16. E.J. Hollo ILA Helsinki Rules Art. IV: “Each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin”. Sustainability and the need of taking into account social and economic structures are concerns of these Rules.

17. E.J. Hollo /Cont. Water Basin (ILA) This indivisible hydrologic unit shall be managed as a single unit to assure the “maximum utilization and development of any portion of its waters” (ILA 1966, art. II).

18. E.J. Hollo Property rights to waters Private ownership (waterbed and resource) Public sovereignty or ownership (waterbed) Riparian rights (water) Mixed private and public

19. E.J. Hollo Property institutions Often protected by constitutional property rights, water is a valuable factor in the economic market and in the organization of water management. Water services on the market are highly depending on the structure of water supply which may rely on different permits and protected legal rights.

20. E.J. Hollo (4) Development of Water Management Law Special focus on transboundary waters where political and egoistic measures may cause crises Focus on problem areas with an irregular water supply system and the need to cooperate between states Climate-related adaptation issues Connection to the protection of human rights

21. E.J. Hollo UN Convention 1997 Article 5 Equitable and reasonable utilization and participation 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 and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection in the watercourse.

22. E.J. Hollo Example: EU WFD Member States shall /within water districts/, inter alia and in accordance with the precautionary approach, take early action and develop long- term plans to ensure the sustainable use of groundwater and of the aquifers in which the groundwater is contained. Setting up of binding environmental objectives for all waters in each water basin. The Directive provides ecological criteria for sustainability while adopting water management plans for the water basins.

23. E.J. Hollo Part Two Legal sources and instruments

24. E.J. Hollo Global Legal Context (1) The ”Triptych approach” (2)The sustainability pillars (3) Elaboration of traditional water law, models in national and transboundary regimes

25. E.J. Hollo (1) The Triptych ”Climate, Biodiversity, Sustainability” World Charter for Nature by the United Nations 1982 ”Resources, including water, which are not consumed as they are used shall be reused or recycled” UNFCC (Climate) 1992 –Bali 2007 on adaptation and water management CBD (Biodiversity, Rio) 1992, Agenda 21 –World Summit on Sustainable Development (WSSD), Johannesburg 2002

26. E.J. Hollo (2) Towards Water Integration and Sustainability Interpretative Principles Sustainability and Political Principles Expectative Water Rights – State Guarantee ”Sustainabilityl Constitution”

27. E.J. Hollo (3) Sources of Essential Water Law Different levels of water law: International and global (UNCLOS and UN 1997) Regional and transboundary (ECE 1992, European Union, WFD 2000) National: federal and central Comparative water reasoning (transboundary treaties and practices): case law, ILA

28. E.J. Hollo A New Approach The UN Convention, while gave more attention to the prevention of various kinds of harm, also limits its rules to transboundary contexts. – The question of binding international standards or just principles; interpretation on the basis of well-established customary law. Some of the Berlin Rules are closely related to international human rights law and are in that sense binding.

29. E.J. Hollo Conclusions There is a need of combining human based water services, aquatic sustainability and and nature conservation under the aspect of state international liability There is sufficient of ”law” on global and regional for a World Water Charter. Politically perhaps not popular but academically workable!

30. E.J. Hollo Thank you for your attention!