From a broader perspective, as the special rapporteur on human rights and safe drinking water and sanitation would highlight, the full enjoyment of the right to water (as well as the rights to life, health and food) depends on the services provided by freshwater ecosystems. In this respect, the degradation and loss of biodiversity undermine the ability of human beings to access clean and safe water (HRC, 2017). This vision aligns itself with the idea that there is a role for biodiversity in supporting the realization of the right of access to clean and safe water in food production. Moreover, international obligations to conserve and sustainably use biodiversity, including freshwater ecosystems, also matter from a human rights perspective, as biodiversity degradation or its loss can have negative impacts on the accessibility to water food and agriculture.
According to available data, by 2022, 128 countries had committed to setting targets and more than 100 countries had agreed targets to avoid and reduce degradation and restore degraded lands. It is then a high- priority agenda item for governments to support the 2030 Agenda. A critical phase of post-2020 planning in the CBD framework to reinvigorate actions to achieve the Aichi Targets (2011-2020), is closely related to land and water governance. Under the concept of sustainable agriculture, the Global Biodiversity Outlook 5 calls for an integrated land and water policies to support reduced pollution, increased irrigation efficiency and changes in what are defined as perverse subsidies and incentives. In this same line, CBD Parties have already emphasized the need, among others, to use an appropriate mix of regulatory and incentive measures to increase the efficiency of use of water. (CBD COP Decision XIII/3, 2016, paras. 17(g), 28 and 32).
On the other hand, among the 2022 Kunming-Montreal targets for biodiversity, it is expected to ensure that all land and sea areas globally will be under an integrated biodiversity and inclusive approach to spatial planning addressing land- and sea-use change, preserving existing wilderness areas.
This is a highly interesting point for the application of the CBD, with wide implications for the subject matter of this lecture. In this respect, in the Post-2020 Global Biodiversity Framework, 4 of the 21 action-oriented targets are directly relevant to the land and water agenda, either for reducing threats to biodiversity, or for providing tools and solutions for implementation and mainstreaming. The restoration and maintenance of biologically diverse ecosystems promoted by the CBD, also introduce - throughout the covered themes, an integrated ecosystem approach. In words of the CBD Secretariat, water is a service provided by the ecosystem: forests, grasslands, soils, rivers, lakes,
streams, wetlands, aquifers, estuaries and coastal waters influence the availability of water and its quality. Maintaining and improving the quality of service is vital to meet water management goals such as water storage and flow regulation, filtering and flood and drought protection, among others.
The ecosystem services are impacted by water and land management decisions and in turn influence water availability and quality. Also, biodiversity is directly implicated in maintaining most ecosystem functions that deliver these services, but it is also a co-beneficiary of improved ecosystem conditions.
These goals can be read along with procedural obligation consisting of the conduction of an environmental impact assessment for projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allowing for public participation in such procedures.
The UN Special Rapporteur on Human Rights and the Environment, has already underscored the importance of states’ procedural obligations around the EIA to ensure that the relationship between biodiversity and human rights, including the right to water and the right to food, are taken into account by: assessing the social and environmental impacts of all proposed projects and policies that may affect biodiversity; providing public information about biodiversity, including environmental and social assessments of proposals; ensuring that the relevant information is provided to those affected in a language that they understand; providing for and facilitating the public participation in biodiversity-related decisions; and providing access to effective remedies for the loss and degradation of biodiversity (CBD COP Decision XIII/5, 2016, para. 28).
The procedural dimensions complement the observance of the rights to water and food and are conducive to integrate several environmental sustainability considerations that contribute to an informed and participatory prioritization of water allocations. (Chapters 1–2).
These approaches and commitments are supplemented by the United Nations Convention on Desertification, which states that the achievement of its objectives “will involve long-term integrated strategies that focus simultaneously, in affected areas, on improved productivity of land, and the rehabilitation, conservation and sustainable management of land and water resources, leading to improved living conditions, in particular at the community level”.
At this stage, I would like to share two reflections on the integrated role of these Conventions with other regimes: First, the importance of national action plans and programmes as a methodology for the adoption and implementation of appropriate measures. Second, their aim should be to foster coordination among the parties to the different Conventions, to “derive maximum benefit from activities under each agreement while avoiding duplication of effort”. Thus, it is desired that parties encourage the conduction of joint programmes, particularly in the fields of research, training, systematic observation and information collection and exchange, to the extent that such activities may contribute to achieving the objectives of the agreements concerned”. (Art.8).
And the picture would not be complete without considering the law of international watercourses and the question of aquifers. The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted in 1997, which is one post-Rio agreement that specifically focuses on international transboundary water resources, is already in force. (38 State parties). The Convention may be deemed as both codifying and developing principles considered essential by the international community for the management of transboundary water resources. In this regard, the status of the principle of equitable and reasonable utilization of waters, and the prevention of significant harm as the cornerstones of the regime, are of crucial relevance.
As specialists highlight, the Convention contains procedural obligations to implement the substantive obligations and to prevent disputes among the riparian States. Furthermore, compliance with these procedural obligations seems to be essential for the effective application of the equitable and reasonable utilization of such a watercourse. These procedural obligations, associated with the notion of prevention, have been supported by International Court of Justice judgments.
The Court has said that “it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource” (Pulp Mills case, para.204; Road case, para. 104). While in the Pulp Mills case the reference concerned industrial activities, the underlying principle will also apply to proposed activities which may have a significant adverse impact in a transboundary context.
Thus, to fulfil its obligation in the exercise of the due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to
carry out an environmental impact assessment. The assessment’ s content will depend on the circumstances and characteristics of the project.
The Court has also maintained in the Silala case (2022), that there are rules of customary value consisting of the duty to notify and consult with the riparian States, as well as to conduct an objective assessment of the circumstances and of the risk of significant transboundary harm, if it were established that any of the activities undertaken by the upper stream country in the vicinity of the Silala posed a risk of significant harm to the neighbouring country. As the Court would say in the above case, “under customary international law, the Parties are both entitled to an equitable and reasonable use of the waters of the Silala as an international watercourse and obliged, in utilizing the international watercourse, to take all appropriate measures to prevent the causing of significant harm to the other Party”. (Para 97).
As indicated in several studies, this legal framework requires cooperating, which may entail entering into agreements for the management of the watercourse (Articles 8 and 24), thus providing an avenue for implementing states’ obligations through international cooperation (see Section 1.4.1). These notions arise out the obligations to prevent, reduce and control the pollution of an international watercourse that may cause significant harm to other states concerned or to their environment, including harm to human health or safety, to the use of the waters for any beneficial purpose or to the living resources of the watercourse (Article 21.2).
In addition, the Draft articles on the Law of transboundary aquifers (2008) constitute a complementary regime aimed at the protection of groundwater-dependent ecosystems (Article 10), as well as the protection of recharge and discharge zones (Article 11), and precautionary
approach to the management of transboundary aquifers (Article 12), all in the line of previously mentioned principles. It is also relevant to note that such instrument aims to ensure the development, utilization, conservation, management, and protection of groundwater resources in the context of the promotion of the optimal and sustainable development of water resources for present and future generations.
The sphere of the human right to water in as far as it encompasses access to clean water, is also a significant one. There is also the obligation to cooperate (Article 7) and to not cause significant harm (Article 6), which – according to experts - provide an avenue for implementing states’ obligations arising from the human right to water through international cooperation. It is again a demonstration of the interlinks between the notions of rights, sustainable development and the current scenarios of water governance.
A recent assessment concerning transboundary cooperation on water resources took place during the United Nations Water Summit on Groundwater (Paris, 2022). On that occasion, a diverse group of States and organizations launched the Transboundary Water Cooperation Coalition. Among its aims, there is the aspiration to foster a widespread ratification or accession to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) and the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses (Watercourses Convention). An increase in the number and efficiency of international transboundary arrangements to foster regional development and prevent conflicts, is also desired. Considering that only 24 of 153 countries that share transboundary water resources such as aquifers and lakes, have entered into operational agreements for their management, this is also to be highlighted.
The first conclusion derived from this initiative and other cases mentioned in this lecture refers to the agreed view that creating and improving adequate structures for the equitable management of those resources in conformity with international principles and standards appears as an appropriate instrument. It follows from what has been said that even though international law guides conduct between sovereign nations, treaties and programmes address issues of direct interest and responsibility of different categories of stakeholders, public and private, including individuals.
It stems from the previous analyses that law has a serious role to play in the development of appropriate tools and mechanisms, suitable to embolden strategic planning, including financial components, “to achieve progressively the full realization of human rights obligations related to access to safe drinking water and sanitation, including in currently unserved and underserved areas”.
The acknowledgment that these are vital aspects involved in the global, multilateral and bilateral processes, including in the treaty-making sphere, is relevant in this hour.
It means, among other tasks, to give special attention to the evolving tools enabling us to achieve sustainable development, as well as the special need to strengthen the relationship between existing international instruments including treaties in the field of environment and other relevant social and economic instruments, taking into account the special needs of different countries and their contributions, and the duty to render effective the rights to which human persons are entitled.
An overarching idea that should pervade the governance of this resource in all fora, including trade, is that water is essential to health, poverty reduction, food security, peace and human rights, ecosystems, and education.
The cross-sectoral nature and interdependence of water and climate change with other vital natural resources, such as land or energy, creates further opportunities for partnership and cooperation. For example, if we agree that food security is affected by the impacts of climate change on water, including food production and other aspects, water management is critical, including for the necessary transformation of food systems. This is also the case where water is required for production and conversion processes in the energy sector. And to implement water reuse and desalinization systems.
These thoughts confirm the close relationship between water and climate change in various scenarios. From the above assessments, proposing and supporting agreed policies and methods to address the connections between climate change actions and water governance, including the role international law and domestic rules, seems relevant. These interlinkages imply considering the potential of cooperation as a primary tool to achieve mitigation and to foster adaptation and resilience goals, with an enhanced vision of water management in international law.
This said in the spirit that food security and water, as underscored by the renowned organization that hosts us, are not only inextricably linked, but they constitute the bases of an ambitious legal agenda that includes those elements into the climate, environment, and development scenarios.
