4.2 International Water Law Today
35
and marine ecosystems (Art. 20–23.). Finally, the Convention introduces detailed
mechanisms for dispute resolution. Transboundary water disputes must be resolved
peacefully bilaterally or through the involvement of a third-party, such as good offices,
mediation or conciliation, etc. A special feature of the Convention is the possibility for
any party to trigger the mandatory procedure of a fact finding commission that enjoys
broad investigative powers. While the outcome of the procedure is not binding, the
operation of the commission is indeed a major step towards a mandatory third-party
dispute settlement (Tanzi and Contartese 2015). Irrespective of these extra-judicial
mechanisms, the parties may always refer their dispute to the International Court of
Justice or an arbitral tribunal (Art. 33., Annex).
The long-awaited entry into force of the 1997 UN Watercourses Convention has
not been met with universal jubilation. It was criticised as being too conservative,
just stating the obvious. Some authors argue that it was out-of-date even before it was
adopted and scarcely attempted to address the water challenges of the twenty-first
century, in particular those linked to environmental protection, human rights and
investments (Dellapenna et al. 2013). According to some critiques the fact that the
Convention draws a stark distinction between the domestic sphere of water management and the transboundary dimension defies the daily experience of water management (Conca 2006).
Yet, such criticisms seem somewhat unfair. First, the slow pace of the ratification
and the actual implementation of the Convention is an eloquent illustration of the
complacency of the international community to tackle core issues of transboundary
water governance in a (more) substantial way. The (relatively) low level of ambition
of the text is thus not the fault of its draftsmen, it is just an accurate footprint of
the difficult political climate surrounding its lengthy conception. Second, there is no
doubt that the Convention has, even before its entry into force, strongly influenced
important emerging regional water governance regimes such as the Southern African
Development Community’s (SADC) 2000 Revised Protocol on Shared International
Watercourses (see Sect. 4.2.3) or the 2002 Framework Agreement on the Sava River
Basin (see Sect. 8.2.3) and inspired the establishment of basin organisations. Finally,
real implementation only started a few years ago, thus more time will be needed to
evaluate its impact on the future development of international water law. Unfortunately, however, it is unlikely that the Convention will reach its full potential so long
as the question of institutional structure for implementation remains unresolved as,
uniquely, the Convention itself does not set up institutions for its own management
(McCaffrey 2016).
4.2.3 Regional, Basin and Bilateral Water Treaties
4.2.3.1 Evolution, Scope and Distribution
While the two global treaties lay down a set of principles as well as basic substantive and procedural rules for transboundary water cooperation, real life cross-border
35
and marine ecosystems (Art. 20–23.). Finally, the Convention introduces detailed
mechanisms for dispute resolution. Transboundary water disputes must be resolved
peacefully bilaterally or through the involvement of a third-party, such as good offices,
mediation or conciliation, etc. A special feature of the Convention is the possibility for
any party to trigger the mandatory procedure of a fact finding commission that enjoys
broad investigative powers. While the outcome of the procedure is not binding, the
operation of the commission is indeed a major step towards a mandatory third-party
dispute settlement (Tanzi and Contartese 2015). Irrespective of these extra-judicial
mechanisms, the parties may always refer their dispute to the International Court of
Justice or an arbitral tribunal (Art. 33., Annex).
The long-awaited entry into force of the 1997 UN Watercourses Convention has
not been met with universal jubilation. It was criticised as being too conservative,
just stating the obvious. Some authors argue that it was out-of-date even before it was
adopted and scarcely attempted to address the water challenges of the twenty-first
century, in particular those linked to environmental protection, human rights and
investments (Dellapenna et al. 2013). According to some critiques the fact that the
Convention draws a stark distinction between the domestic sphere of water management and the transboundary dimension defies the daily experience of water management (Conca 2006).
Yet, such criticisms seem somewhat unfair. First, the slow pace of the ratification
and the actual implementation of the Convention is an eloquent illustration of the
complacency of the international community to tackle core issues of transboundary
water governance in a (more) substantial way. The (relatively) low level of ambition
of the text is thus not the fault of its draftsmen, it is just an accurate footprint of
the difficult political climate surrounding its lengthy conception. Second, there is no
doubt that the Convention has, even before its entry into force, strongly influenced
important emerging regional water governance regimes such as the Southern African
Development Community’s (SADC) 2000 Revised Protocol on Shared International
Watercourses (see Sect. 4.2.3) or the 2002 Framework Agreement on the Sava River
Basin (see Sect. 8.2.3) and inspired the establishment of basin organisations. Finally,
real implementation only started a few years ago, thus more time will be needed to
evaluate its impact on the future development of international water law. Unfortunately, however, it is unlikely that the Convention will reach its full potential so long
as the question of institutional structure for implementation remains unresolved as,
uniquely, the Convention itself does not set up institutions for its own management
(McCaffrey 2016).
4.2.3 Regional, Basin and Bilateral Water Treaties
4.2.3.1 Evolution, Scope and Distribution
While the two global treaties lay down a set of principles as well as basic substantive and procedural rules for transboundary water cooperation, real life cross-border