Water, Peace, and the Future of International Law: A Conversation with Dr. Danilo Türk

By:

Dr. Danilo Türk, then-President of Slovenia, speaking during the Annual Meeting of the World Economic Forum in Davos, Switzerland, January 28, 2010. Courtesy Wikipedia Commons.

Introduction

Dr. Danilo Türk is the former President of Slovenia and current Chairman of the Global High-Level Panel on Water and Peace, a project of the Geneva Water Hub.  Dr. Türk is an expert on public international law, having served as the first Slovene ambassador to the United Nations (1992-2000) and as UN Assistant Secretary General for Political Affairs (2000-2005). In this blog post, Dr. Türk discusses the Panel’s work and the issue of water and peace in contemporary international water law.

On Water & Peace

  1. What drove the Geneva Water Hub to establish the Global High-Level Panel on Water and Peace and why is water and peace a topic that the next generation of public international lawyers should pay attention to?

D.T. The questions of international water cooperation have been treated traditionally as technical and developmental issues while their political importance has been mostly underestimated. This led a group of UN Member states, the fifteen co-convening countries, to initiate a global high level panel to explore the links between water and peace more generally and to make recommendations. In an era of global warming when most of its adverse effects are transmitted through water this is an expected concern.

International lawyers will know that water cooperation is a traditional subject in international law and that there are, at present two general international conventions requiring greater adherence and implementation. In addition, the number and diversity of international instruments dealing with transboundary water issues is likely to grow and will require ever more legal expertise.

  1. One recommendation to the Panel from senior experts convened by the Geneva Water Hub to provide analysis on promoting the effectiveness of international water law in support of security and peace is to increase awareness of the features of International Water Law (IWL). Can you provide a brief description of the basic features or structure of IWL?

D.T. Historically the basic examples are the river commissions in Europe (in particular Rhine and Danube and their tributaries) and their legal and institutional systems and the arrangements for transboundary water cooperation in North America. From among more recent systems one should note the Senegal River Organization (Organisation pour la mise en valeur du fleuve Sénégal).

At the global level there are two Conventions to study: The 1997 UN Watercourse Convention and the 1992 UNECE Water Convention, which is since 2016 open for accession to all UN member states. The two basic principles around which their systems are organized are the principle of equitable and reasonable utilization of transboundary watercourses and the principle not to cause significant harm. The two conventions require cooperation among the riparian states and creation of institutional mechanisms necessary for this purpose. The UNECE Convention also contains an institutional mechanism designed to assist the signatory countries in the implementation of its provisions.

There is a fair amount of further legal details to study, as students of law will understand, and much further information is easily available on internet.

  1. Another recommendation offered to the Panel is to promote effective engagement of non-state actors. By what means can public international lawyers and other state representatives engage non-state actors? Alternatively, for law students pursuing careers in project finance, private international law, or other for-profit sectors that might touch on water issues, are there any principles these students should keep in mind if and when their careers bring them into contact with water issues?

 D.T. This is an interesting question requiring creativity in developing appropriate means. Some non-state actors such as environmentalists’ groups or the groups representing the affected populations are likely to mobilize for the implementation of the basic principles of IWL. The Panel argues in favor of greater engagement of the business sector, in particular companies investing in water infrastructure. They should engage with governments and with civil society. A form of engagement that can help is a voluntary code of conduct, a “soft law” instrument based on the business’ own volition but designed to give practical meaning and implementation of instruments of the IWL. At the global level the UN Global Compact (launched in 2000) includes a water mandate and could serve both as a guiding force and as a conceptual framework for new instruments of implementation of IWL. Similarly, in the field of finance, new instruments should be devised, ranging from those intended to strengthen the “safe space” for financing to a special blue fund to finance the ancillary costs of financing significant transboundary water projects.

And above all, law students should think about how to develop national legislative initiatives to enable additional means for transboundary water cooperation.

  1. Less than one third of UN member states have ratified one or both of the two global Conventions that set out principles for managing shared waters. To what extent is increasing ratification an important international goal and how can state and non-state actors convince States of the practical benefits of cooperation?

 D.T. Broad ratification of international treaties is always important but it does not yield automatic change for the better. It has to be accompanied by steps to make the legal principles and norms a reality. In this context it is important that the UNECE Water Convention includes a mechanism to advise states and assist them in the process of implementation. Practical benefits of transboundary water cooperation are clearly visible in the existing success stories, such as the Senegal River. Studying examples of best practices should be a standard feature of work of all actors trying to convince states for transboundary water cooperation.

In addition, special attention to water issues is necessary in areas coming out of armed conflict. The future peace arrangement for Syria will have to include provisions for water management and cooperation which is vital for political stability and development after the war. More broadly, water cooperation arrangements will be necessary for the entire area of Euphrates and Tigris. This is primarily a political task at this stage and one which will have to produce legal arrangements. The principles and norms of IWL can be of help in designing these arrangements.

  1. You have spoken about competition for water among different sectors. How should IWL deal with this competition for water and are there ways to leverage such competition to produce cooperation and peace?

D.T. This depends on the specific needs of the situation at hand. At present, the largest part of fresh water is used for agriculture. Mining and energy are also among the large consumers. These uses often put strains on water left for human consumption, either in terms of water quantity or, even more often, water quality. The principles of equitable and reasonable utilization and to not cause significant harm are mutatis mutandis, applicable in this context as well.

Additional difficulties arise in cases of transboundary waterways. For example, the waters of the Mekong river basin are currently used for energy production and for fishing and agriculture. All these needs are legitimate. Managing the system in a way which would avoid “significant harm” is extremely complex but also more important and ever better understood among the riparian countries. So, the development of mechanisms of inter-state cooperation in the basin (again a matter of certain complexity, given the number of states and intergovernmental institutions involved) is attempting to result in an appropriate balance among the various legitimate interests.

  1. In a previous interview, you have said “[w]e [the Panel] call on the UN Security Council to commit more to upholding the law and protecting water.” Are there any steps the UN Security Council can take, beyond acting on a case-by-case basis, to do more to uphold international law protecting water?

D.T. The panel proposed that the UN Security Council adopt a resolution that would guide states in the exercise of their fundamental responsibility to respect and ensure respect for international humanitarian law, as accepted since the adoption of the Geneva Conventions of 1929 and 1949. The evolution of the Security Council’s legislation reflected in the recent resolutions already indicates that direction – in particular resolutions of the Security Council 1998/2011; 2118/2013; 2165/2014; 2286/2016 and 2341/2017. What is needed now is a more systematic approach and the Panel proposed a number of elements for a Security Council resolution that would define such an approach.

It should be understood that the existing tendencies in the practice of urban warfare increasingly affect all infrastructure, including water infrastructure with devastating effects on hospitals and schools as well as on the civilian populations in general. The Security Council should consider protection of water resources and installations as objects requiring special attention and protection that has to be required in all situations of armed conflict.

On Advice for Students

  1. Do you have any advice for law students, in the US and abroad, who are pursuing a career in public international law?

 D.T. Don’t be discouraged by the current practices of violations and disregard for international law. This will have to change because the world is ever more connected and international law is indispensable. However, it has to find new forms and instruments to address the issues of today and tomorrow.

  1. Given the notable rise in nationalism among Western states that were previously more pluralistic, how can future public international lawyers convince states and national or local stakeholders that international cooperation generally remains an important domestic policy goal?

 D.T. Admittedly this is not easy in the current political climate. Perhaps they should start by recognizing the wisdom of Tip O’Neill that “all politics is local” – and to add that it is not good if it becomes too local. Real solutions of many of today’s “local” problems such as those arising from climate change or mass migrations can only be found in international cooperation. International law is a necessary tool for politicians and they better learn the basics.

  1. Do you have any recommendations for students who want to learn more about water and peace or who hope to work on this issue following graduation? Are there any particular subjects such students should focus their remaining studies on, or organizations they should look to?

D.T. There are two centers that I can recommend: One is the University of Geneva and the other is Oregon State University. Both have excellent programs on water issues. Their courses and production of literature would give any student a good idea about subjects for further thinking and study. And obviously, I recommend all to read the report of the Global High Level Panel on Water and Peace.

Andrew Brickfield is a second-year student at Columbia Law School. Prior to law school Andrew was a Program Officer at the Global Fairness Initiative, an international non-governmental organization based in Washington, DC.