Transcript UNIS Template - IUCN Academy of Environmental Law

Re-Imagining International Water
Law?
IUCN Academy of Environmental Law: 2011 Colloquium
SYDNEY CENTRE FOR
INTERNATIONAL LAW
SYDNEY LAW
SCHOOL
Dr Tim Stephens
Director, Sydney Centre for International Law
The anthropocene and the hydrosphere
› ‘Re-plumbing’ water basins
› Human-induced climate change
› Increasing water stress
› Moderating human influence on the hydrological cycle and satisfying
global water needs: is international water law up to the challenge?
› Significant changes to international water law over last century
› Incorporation of environmental dimension in international water law
› From a riparian ‘community of interest’ to a global ‘community of interest’?
› Stephen C McCaffrey’s proposal (first put in 1997) that we ‘share the rain’
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UN Watercourses Convention
› Global architecture for international water law
› 14 years since adoption by UN General Assembly
- Only 24 parties (35 required to enter into force)
- Few signatories in Americas, Asia or Europe
- Respectable ratifications in Africa and Middle East
- African States parties: Burkina Faso, Guinea-Bissau, Libya, Morocco, Namibia,
Nigeria, South Africa and Tunisia
- Middle Eastern states parties: Iraq, Jordan, Lebanon, Qatar and Syria
› Structure and key obligations
› Reasons for poor level of ratification
- Akin to ILC Articles on State Responsibility?
- Superfluous? – Pulp Mills Case (2010)
› Value as a framework (eg. 2001 SADC Protocol)
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UN Watercourses Convention
› Not a constitution for international water law in form or substance
› Not a global regime for the fair allocation of freshwater resources
› Compare with regimes addressing other commons issues: 1982 UN
Convention on the Law of the Sea, 1985 Vienna Convention for the
Protection of the Ozone Layer (and 1987 Montreal Protocol), 1992 UN
Framework Convention on Climate Change (and 1997 Kyoto Protocol),
1992 UN Convention on Biological Diversity
› Is international water law always destined to find the lowest level?
› Can it have a moderating influence on power imbalances between cobasin states?
› Can it provide the basis for a regime to achieve a structural transformation
in the allocation of freshwater resources?
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A global ‘community of interest’?
› Gabčíkovo-Nagymaros Project Case (1997)
- From ‘limited territorial sovereignty’ to a ‘community of interest’
- (No reappraisal in Pulp Mills Case (2010))
› Not only restraint and cooperation, but co-ownership and shared governance
› A global ‘community of interest’ to address hydrological disadvantage
› Addressing minimum requirements of distributive justice
› Physical limitations
- Not a regime of restraint (cf. atmospheric pollution, deep seabed regimes) but one of
positive obligation
- Pipedreams? Water transfers via other means
› The imperatives for a common heritage water ethic – climate change and the
globalisation of water
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Climate change and international water law
Relative Changes in Precipitation in 2090-9 Compared to 1980-99
Source: IPCC Fourth Assessment Report, Climate Change 2007: Synthesis Report, Figure 3.3. Relative changes in
precipitation (in percent) for the period 2090-2099, relative to 1980-1999. Values are multi-model averages based on
the SRES A1B scenario for December to February (left) and June to August (right). White areas are where less than
66% of the models agree in the sign of the change and stippled areas are where more than 90% of the models
agree in the sign of the change.
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Climate change and international water law
Projections of Relative Changes in Runoff by 2100
Source: IPCC Fourth Assessment Report, Climate Change 2007: Synthesis Report, Figure 3.5, Large-scale relative changes
in annual runoff (water availability, in percent) for the period 2090-2099, relative to 1980-1999. Values represent the median of
12 climate models using the SRES A1B scenario. White areas are where less than 66% of the 12 models agree on the sign of
change and hatched areas are where more than 90% of models agree on the sign of change. The quality of the simulation of
the observed large-scale 20th century runoff is used as a basis for selecting the 12 models from the multi-model ensemble.
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Climate change and international water law
› Intergovernmental Panel on Climate Change Fourth Assessment Report
- Increased water availability in the moist tropics and high latitudes
- Decreased water availability and increased drought in mid-latitudes and semiarid low latitudes
- Hundreds of millions of additional people exposed to water stress
› Northern Africa among regions to be hardest hit
- All 16 nations currently enduring extreme levels of water stress in North Africa
and the Middle East
› Impact on hydrological cycle complex with varying regional impacts at
different temperature thresholds
- Nile in trouble at all temperature increases
- Ganges may benefit from increased runoff in a +4˚C world
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Climate change and international water law
› UN Watercourses Convention not a constitution for equitable allocation of
freshwater at global scale
› Provides limited basis for negotiating water agreements to address climate
change
- ‘Climate change’ not referred to; may be addressed via proxy
› Provides no basis for renegotiating existing water agreements to address
climate change
- Supplements rather than supplants – Article 3
- Compare with 1995 UN Fish Stocks Agreement
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Climate change and international water law
› Options at general international law to renegotiate water agreements?
- Termination or suspension where impossibility of performance or fundamental
change of circumstances?
- Articles 61 and 62 of the 1969 Vienna Convention on the Law of Treaties and
their application in the Gabčíkovo-Nagymaros Case (1997)
- ILC Commentaries on the Articles on Treaties - ‘the type of cases envisaged by
[Article 61] is the submergence of an island, the drying up of a river or the
destruction of a dam or hydro-electric installation indispensable for the execution
of a treaty.’
- Value of suspension or termination as remedies?
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Globalisation of water – ‘virtual water’ trading
› Food production uses around 80 per cent of available freshwater
worldwide per annum
› Water embedded in agricultural products traded internationally
› Transfer of water by other means – trade in ‘virtual water’
› Global redistribution of water driven by harsh economic logic responding to
demographic and environmental change (not a global common heritage
water ethic)
› Entrenchment of water trading relationships through land grab, particularly
(but not exclusively) in Africa
› Effect of water trade? Short-term benefits, long-term vulnerabilities
› Not addressed by international water law
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Globalisation of water – ‘virtual water’ trading
Patterns of virtual water redistribution
Source: Paolo D’Odorico et al, ‘Does globalisation of water reduce societal
resilience to drought?’ (2010) 37 Geophysical Research Letters L13403.
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Future of international water law?
› Can international water law offer more?
› Can international water law ever offer enough? Can it move beyond its
focus on the terrestrial component of the hydrological cycle?
› Is there is a need for a new big idea in water law?
› Is an enforceable human right to water the answer or an impediment to a
global common heritage water ethic?
› Is international law capable of regulating human interference with the great
geo- and bio-physical cycles (water cycle, carbon cycle, nitrogen cycle
etc.)?
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