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Development Of A Model Transboundary Agreement

Congress: 2015
Author(s): Malcolm Gander

Malcolm Gander
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Keyword(s): Sub-theme 12: Transboundary river basins and shared aquifers,
Oral:
Abstract

IntroductionA set of water management principles (WMPs) are analyzed and form the basis for a template for a model transboundary agreement ("template") for international river basins (Gander 2014: Water International). The tenets of international water law, which support the selection of the WMPs, are analyzed. The principles include equitable and reasonable utilization and the obligation to not cause significant harm as the interrelated and overarching principles of international watercourse management.

The development of a template is undertaken because the 1997 United Nations Watercourses Convention was ratified in 2014, and a template consistent with the principles of this convention may facilitate the protection of shared water resources. The template is also consistent with the United Nations General Assembly resolution on the law of transboundary aquifers (United Nations 2008), which closely follows the principles of the 1997 Convention in its application to transboundary groundwater management.

Methods/MaterialsMost of the WMPs incorporated into the template have been adopted from existing agreements. Several transboundary agreements have elements that have been generally regarded as appropriate and in many cases proven effective in practice, e.g., Indus River Treaty (1960), Columbia River Treaty (1961), Amazon Treaty (1978), and Nile River Treaty (1959; 2010) and portions of these treaties have been incorporated into this template.

Although not accepted as customary international law, several relevant principles are also taken from the Utton Transboundary Resource Center Model Interstate Compact (Muys et al. 2007), which is a model transboundary agreement for states within the United States. The most important contribution from Muys et al. 2007 is the incorporation of a relatively simple water allocation methodology to ensure consistent stream flow levels. Some of the WMPs, such as the establishment of emergency contingency plans, have been identified in relatively few existing agreements, and their content has been adapted to promote public safety and minimize property damage.

Results and DiscussionThe WMPs, including obligations to regularly exchange data and information, safeguard ecosystems, protect recharge and discharge zones, prevent pollution, monitor water levels and water quality of the watercourse and aquifers, provide prior notification of planned activities, promote public participation, have access to justice in environmental matters, and complete transboundary environmental and social impact assessments and audits, have been subjected to real-world situations and proven useful. Thus, to varying degrees, these WMPs have withstood the test of time and varied conditions, which would seem to be the most stringent test of any principle.

Whereas the template follows the structure of the 2010 Nile River Basin Cooperative Framework Agreement (Nile, 2010), which draws heavily from the 1997 Convention, the template makes significant amendments and additions. To the maximum extent possible, the template adopts principles generally accepted as customary international law. Some text is also applied that has been used or has otherwise been recognized in the practice of forging agreements between states but has not yet risen to the status of customary international law.

In general, the template treaty is intended to be a universal starting point for groups charged with writing such treaties. The template strives for conciseness and simplicity whenever possible. Certain topics are intentionally written at a general level to accommodate ratification and to allow the signatory parties to write more specific procedures through committees populated by their representatives.

ConclusionThe author has incorporated WMPs that will readily apply to most basins, regardless of the unique environmental and political conditions existing in individual basins. Other than a few logical additions to previously employed WMPs (e.g. regular well-water level measurements of all existing domestic, agricultural and environmental monitoring wells; preparation of emergency preparedness plans), this template is a compilation of elements from applicable treaties, certain conventions and resolutions (ILA, 1966, 1986; United Nations, 1997, 2008), and papers by reputable practitioners (e.g. McCaffrey 2007; Salman, 2007, 2010, 2011; Bourne, 1997). Therefore, by and large, this template does not present new concepts or ideas. It does, however, make choices in selecting the most universal principles that riparians can hopefully agree upon, ratify, and use to facilitate long-term cooperation. 1. Bourne, C. (1997). The International Law Commission's Draft Articles on the Law of International Watercourses: Principles and planned measures. In P. Wouters (Ed.) International water law, selected writings of Professor Charles B. Bourne. The Hague: Kluwer Law International. 2. Gander, M. (2014). International water law and supporting water management principles in the development of a model transboundary agreement between riparians in international river basins. Water International 39(2), 1-18. 3. ILA. (1986). Report of the sixty-second conference, Seoul. London: 4. ILA. (International Law Association). (1966). Report of the fifty-second conference, Helsinki (pp. 447–533 ). London: 5. McCaffrey, S. 2007. The Law of international water courses. Second Edition. Oxford University Press. 6. Muys, J. C., Sherk, G. W., & O’Leary, M. C. (2007). Utton transboundary resources center model interstate water compact. Albuquerque, New Mexico: Utton Transboundary Resources Center, University of New Mexico School of Law. 7. Nile. (2010). Agreement on the Nile River Basin Cooperative Framework. The States of the Nile River Basin. 17 May. 8. Salman, S. (2007). The Helsinki rules, the United Nations watercourses convention and the Berlin rules: Perspectives on international water law. Water Resources Development, 23(4), 625–640. 9. Salman, S. (2010). Downstream Riparians can also harm upstream Riparians: The concept of foreclosure of future uses. Water International, 35(4), 350–364. 10. Salman, S. (2011). The World Bank policy and practice for projects affecting shared aquifers. Water International, 36(5), 595–605. 11. United Nations. (1997). Convention on the Law of the Non-navigational Uses of International Watercourses. Adopted by the General Assembly of the United Nations on 21 May 1997. In force as of 2014. Records of the General Assembly, Fifty-first Session, Supplement No. 49 (A/51/49). 12. United Nations. (2008). UN General Assembly Resolution on the Law of Transboundary Aquifers. A/RES/63/124. Sixty-third session, Agenda Item 75. 15 January. Retrieved from http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/63/124.

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