GENERAL ASSEMBLY VOTING RECORD
The Convention was sponsored by 38 States and adopted by a vote of 106 States in favour, 26 abstentions and 3 votes against (Burundi, China and Turkey).59
While it is unclear why Burundi voted against the Convention, having not actively participated in the working group, Turkey and China explained their respective positions. For China, the text did not reflect a broad consensus amongst States, in that it failed to provide for a proper balance between the interests of upstream and downstream riparians, and because mandatory dispute-settlement mechanisms were unacceptable within a framework Convention. Turkey's negative vote was largely based on its position towards the aforementioned contentious issues, particularly the relationship between the principles of equitable and reasonable use and no-harm, the compulsory dispute settlement, and the Convention's status in relation to existing and future watercourse agreements. Turkey also argued that the procedural rules relating to planned measures went beyond the scope of what should be included in a framework convention.
Of the numerous abstaining States that offered an explanation as to their voting, many reiterated their concern over the contentious issues outlined above. Particularly subject to controversy was the question of whether the Convention appropriately balances the interests of upstream and downstream countries when determining the relationship between the no-harm rule and the equitable and reasonable utilization principle.60 However, such criticisms often fail to note that, in recognizing equitable and reasonable utilization as its cornerstone, the Convention is consistent with actual State practice. In other words, the Convention's approach, ‘which clearly established a process for reconciling competing uses, seems not only preferable, but also closer to what will usually happen in practice’.61
One further notable concern related to time constraints and the lack of consensus. Such concern was noted by Tanzania and France – the latter stating that, ‘the haste in negotiations had created serious procedural discrepancies which affected the credibility of the resulting text’.62 The Chinese delegate alluded to similar concerns in the deliberations over Articles 5–7, stating that ‘In view of the results of the vote … she wondered about the anticipated effects of the convention and the number of countries which would be in a position to accept it … [T]he measure of resorting to a vote [rather than consensus] was a dangerous departure from the traditions of the sixth committee’.63
Despite such concerns and some level of opposition, the overwhelming number of States that voted in favour of the Convention suggests that there was ultimately significant support for its text as adopted in 1997.
SIGNATORIES AND CONTRACTING STATES
More than 10 years after the Convention was adopted, it only counts 17 contracting States (see table).64 The most recent accession was from Tunisia, in 2009, which had signed the Convention in 2000. Uzbekistan has also become a Contracting State recently, even though it had originally abstained from voting. Among those countries that have acceded to or have ratified the Convention, Iraq and Lebanon did not participate in the Convention's voting at the General Assembly. An additional five countries that had signed the Convention have not yet deposited the appropriate instrument of ratification, acceptance, accession or approval.
Table 1. UN WATERCOURSES CONVENTION: SIGNATORIES AND CONTRACTING STATES
| PARTICIPANT || SIGNATURE || RATIFICATION, ACCEPTANCE (A), ACCESSION (a), APPROVAL (AA) |
|Côte d'Ivoire||25 September 1998|| |
|Finland||31 October 1997||23 January 1998 A|
|Germany||13 August 1998||15 January 2007|
|Hungary||20 July 1999||26 January 2000 AA|
|Iraq|| ||9 July 2001 a|
|Jordan||17 April 1998||22 June 1999|
|Lebanon|| ||25 May 1999 a|
|Libya|| ||14 June 2005 a|
|Luxembourg||14 October 1997|| |
|Namibia||19 May 2000||29 August 2001|
|Netherlands||9 March 2000||9 January 2001 A|
|Norway||30 September 1998||30 September 1998|
|Paraguay||25 August 1998|| |
|Portugal||11 November 1997||22 June 2005|
|Qatar|| ||28 February 2002 a|
|South Africa||13 August 1997||26 October 1998|
|Sweden|| ||15 June 2000 a|
|Syria||11 August 1997||2 April 1998|
|Tunisia||19 May 2000||22 April 2009|
|Uzbekistan|| ||4 September 2007 a|
|Venezuela||22 September 1997|| |
|Yemen||17 May 2000 || |
While it might be no surprise that the Convention has not been endorsed by those States that voted against it – or even by some of the abstaining countries – this does not explain the inaction on the part of those that voted in favour and have not yet joined the Convention. Even more curious is the fact that, out of the 38 governments sponsoring the text, only ten have subsequently become Contracting States. This begs the questions of subsequent treaty practice, as well as of what may be the reasons possibly slowing down the process for entry into force of the Convention, as discussed below.
UN Watercourses Convention and Subsequent Treaty Practice
Since its adoption, the UN Watercourses Convention has influenced negotiations on regional, basin-specific and bilateral agreements. For example, the Member States of the Southern African Development Community revised their 1995 Protocol on Shared Watercourses Systems in 2000, largely to ensure that its provisions reflected those of the Convention.65 Other examples of agreements drawing significantly from the Convention include the 2002 Framework Agreement on the Sava River Basin,66 the 2002 Incomati and Maputo Agreement,67 the 2003 Protocol for the Sustainable Development of Lake Victoria,68 the 2004 Agreement on the Establishment of the Zambezi Watercourse Commission69 and the 2007 Convention on the Volta River.70 The UN Watercourses Convention was also endorsed by the International Court of Justice in the 1997 Gabcikovo-Nagymaros Case.71
Such support is not limited to those States that voted in favour of the Convention. For example, while China voted against the Convention in 1997, it has subsequently concluded several bilateral agreements with neighbouring States. Such treaties include the 2001 Agreement between Kazakhstan and China on Cooperation in the Use and Protection of Transboundary Rivers, which obliges its parties to ‘adhere to the principles of equity and rationality, as well as closely cooperate in a sincere, neighbourly, and friendly manner’.72 This provision is closely aligned with Articles 5 and 8 of the UN Watercourses Convention. In its turn, Turkey has subsequently expressed a desire to join the EU. Upon doing so, Turkey would be subject to the more stringent provisions contained in the 2000 EU Water Framework Directive73 and the United Nations Economic Commission for Europe (UNECE) Water Convention.74 For example, while the UN Watercourses Convention governs water pollution in its Article 21, the two aforementioned European legal instruments contain much stricter and more detailed obligations on the topic.
Arguably, therefore, even though not yet in force, the UN Watercourses Convention has been, at least to some degree, performing one of its key functions as a framework instrument – that of informing inter-State negotiations on watercourse agreements. However, a significant number of international watercourses still lack adequate legal frameworks to ensure the equitable and sustainable use of their waters.75 As discussed below, therefore, entry into force could significantly contribute to greater levels of awareness and understanding of the Convention and, thus, boost the adoption of watercourses agreements on the basis of its text.
POSSIBLE REASONS SLOWING DOWN THE RATIFICATION PROCESS
One possible reason behind the low number of Contracting States could be ‘treaty congestion’. The UN Watercourses Convention was adopted at a time when international law relating to the environment and development was undergoing significant change. The 1990s witnessed the negotiation and conclusion of global agreements relating to climate change,76 biodiversity77 and desertification,78 as well as non-binding instruments, such as the Rio Declaration on Environment and Development, the Forest Principles and the Agenda 21.79 This proliferation of international agreements and ‘soft-law’ instruments has led to the phenomenon described as ‘treaty congestion’. Already in 1993, Edith Brown Weiss noted that:
… treaty congestion leads to overload at the national level in implementing the international agreements. A country needs sufficient political, administrative, and economic capacity to be able to implement agreements effectively. Today a large number of international environmental institutions, including most pointedly the numerous secretariats servicing international environmental agreements, have some claim on the administrative capacity of national States.80
The UN Watercourses Convention was adopted in the latter half of the 1990s, at the tail end of many other agreements relating to the environment and development. Treaty congestion could, therefore, be a possible reason why States have not been more proactive in joining the Convention.
It is worth mentioning, however, that entry into force of the UN Watercourses Convention could support the implementation of other multilateral environmental agreements (MEAs) that touch on water-related issues. Such treaties include the Ramsar Convention,81 the World Heritage Convention,82 the Convention on Biological Diversity (CBD),83 the UN Framework Convention on Climate Change (UNFCCC)84 and the UN Convention to Combat Desertification (UNCCD).85 In this sense, a study by the Foundation for International Environmental Law and Development (FIELD) on MEAs and water resources management concluded that ‘there is a need for a coherent, transparent and participatory global framework to strengthen policy coordination and the implementation of water-related decisions … at the UN level’.86 Widespread support for the UN Watercourses Convention could therefore be a catalyst for facilitating such a coordination role.87 Moreover, there seems no obvious reason why other global environmental issues should be afforded any greater priority than the current water crisis, as key topics warranting regulation at the global level in the context of an international treaty.
Another reason why the UN Watercourses Convention has not been widely ratified may relate to lack of awareness and capacity. Such a finding was evident from a recent survey of West African States. That survey found that few ministries responsible for water-related issues in that region were aware of the content, relevance and sometimes even existence of the Convention.88 Given the current water crisis, and the recognized need for good governance, it is disappointing that more States are not aware of the potential value of the Convention.
Fortunately, nonetheless West African States have now recognized the need to look more closely at the UN Watercourses Convention and promote its widespread ratification across the region. At the same time, however, these countries have called for greater support from the international community to aid their governments, both technically and financially, through the ratification process.89
Finally, for many years, the Convention lacked any champions, both among governments and international organizations. While some key individual governments, UN bodies, such as UNEP, or regional organizations, such as the European Community, have been behind the swift (or, at least, more effective) ratification process of other multilateral agreements, no such support had been afforded to the UN Watercourses Convention until recently. It is only during the last few years that the international community has come together around the goal of accelerating the Convention's ratification process. For instance, in 2006, the World Wide Fund for Nature (WWF) – an environmental non-governmental organization – launched an international initiative to raise awareness of the Convention, promote its entry into force and future implementation, and assist States through the ratification process. Other stakeholders have progressively joined the initiative, which has produced some tangible results over the years. The initiative has mobilized several key stakeholders to support the process, including among the current Contracting States (e.g. the Netherlands, Sweden), some relevant UN agencies (such as the UN Development Programme) and intergovernmental organizations (such as the Economic Community of West African States). Furthermore, the initiative comprises technical and financial assistance to States in several regions, including Latin America, Africa and Asia. This component has enabled countries such as Ghana, Benin, Niger and Papua New Guinea to engage in an informed and multi-stakeholder consultation and decision-making process and, more recently, to trigger the necessary procedures for acceding to the Convention.90