Water security and its promotion through transboundary water agreements

The notion of water security is a relatively recent phenomenon,¹⁵ and is attracting increasing attention amongst academics, politicians and decision-makers. Further-more, it is important to recognize that the concept of water security goes beyond the sphere of the (nowadays quite popular) environmental security discourse, since freshwater is essential for many purposes other than merely ecosystem-related ser-vices – for instance, power generation, irrigation, flood control, transportation and recreation, to name but a few.¹⁶

There exist many definitions or framings for the concept of water security.¹⁷ Briefly stated, Cook and Bakker have distinguished four dimensions for the concept: water availability; human vulnerability to hazards; human needs (with an emphasis on food security); and sustainability.¹⁸ According to Lautze and Manthrithilake, water secu-rity consists of the availability of water for basic human needs; availability of water for productive activities (such as agriculture); environmental protection; prevention of water-related disasters (risk-management); and of risks of water for national secu-rity.¹⁹ Along the same lines, Grey and Sadoff have defined water security as focused on ‘the availability of an acceptable quantity and quality of water for health, liveli-hoods, ecosystems and production, coupled with an acceptable level of water-relat-ed risks to people, environments and economies’.²⁰ Finally, the United Nations has

15 See, for instance, Patricia Wouters, Sergei Vinogradov, and Bjørn-Oliver Magsig, ‘Water Security, Hydrosolidarity, and International Law: A River Runs Through It …’, 19 Yearbook of International Environmental Law (2008) 97–134 at 102.

16 Bjørn-Oliver Magsig, ‘Introducing an Analytical Framework for Water Security: A Platform for the Refinement of International Water Law, 20 Water Law (2010) 61–69 at 64–65. See also, for instance, Jutta Brunneè and Stephen J. Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’, 91 American Journal of International Law (1997) 26–59.

17 Christina Cook and Karen Bakker, ‘Water Security: Debating an Emerging Paradigm’, 22 Global Environmental Change (2012) 94–102; Jonathan Lautze and Herath Manthrithilake, ‘Water Security: Old Concepts, New Package, What Value?’, 36 Natural Resources Forum (2012) 76–87; and Wouters et al,

‘Water Security, Hydrosolidarity’, supra note 15.

18 See, for instance, Cook and Bakker, ‘Water Security’, supra note 17, at 97–98.

19 Lautze and Manthrithilake, ‘Water Security’, supra note 17, at 77.

20 David Grey and Claudia W. Sadoff, ‘Sink or Swim? Water Security for Growth and Development’, 9 Water Policy (2007) 545–571 at 548.

The Role of EU Water Directives in Promoting Transboundary Water Cooperation and Water Security through Water Agreements – with a Special Focus on Finland

formulated water security as ‘the capacity of a population to safeguard sustainable access to adequate quantities of acceptable quality water for sustaining livelihoods, human well-being …, and socio-economic development, for ensuring protection against water-borne pollution and water-related disasters, and for preserving ecosys-tems in a climate of peace and political stability’.²¹ Common to these definitions is the emphasis on the availability of water, (people’s) access to water for different es-sential purposes, and the existence of risks related to water and conflicts over water use.²² Nevertheless, the precise scope and content of the notion of water security re-main broad or somewhat elusive.

How, then, could water security be promoted, maintained or improved? At the in-ternational level, good relations between states sharing a freshwater basin (even the existence of so-called hydro-solidarity)²³ most often lead to effective joint manage-ment of the shared resource, which is then apt to contribute to the realization of wa-ter security within and among the riparian states. Good wawa-ter governance at all lev-els is essential for water security at all levlev-els. It has been argued that a broad concept of water security and good water governance may be symbiotic, each facilitating the other: water security sets goals, general or more specific, for good water governance, and good water governance is necessary to move towards water security at an oper-ational level.²⁴ In encouraging and guiding this kind of cooperation and coordina-tion, international, regional and bilateral treaties and other regulatory instruments often play a key role.

In general, using treaties to govern the relations between states sharing freshwater re-sources contributes to water security in a variety of ways. Perhaps the main function of treaties is that they stabilize state relations, providing them with certainty and pre-dictability and ‘forcing’ riparian states to engage in dialogue and to be interested in the development of cooperation.

Transboundary water agreements allow states to define rules to govern all aspects of their relations involving freshwater resources: from allocation of water and sharing of benefits to the control of pollution, the construction of works and navigation.²⁵ In addition, it is important that many agreements have provisions on monitoring

21 UN Water, Transboundary Waters, supra note 2, at 1.

22 Similarly, see Wouters et al, ‘Water Security, Hydrosolidarity’, supra note 15, at 106.

23 The term refers to the state of harmony of interests and responsibilities among riparian states and is manifested in effective joint management of a shared freshwater basin. See Wouters et al, ‘Water Security, Hydrosolidarity’, supra note 15, at 132. On hydrosolidarity, see, for instance, Malin Falkenmark et al,

‘Hydrosolidarity through Catchment Based Balancing of Human Security and Ecological Security’, contribution to the Virtual World Water Forum, Kyoto (2003); Andrea K. Gerlak, Robert G. Varady and Arin C. Haverland, ‘Hydrosolidarity and International Water Governance’, 14 International Negotiation (2009) 311–328; and more recently Cameron Harrington, ‘Toward a Critical Water Security:

Hydrosolidarity and Emancipation’, 21 Canadian Foreign Policy Journal (2015) 28–44.

24 Cook and Bakker, ‘Water Security’, supra note 17, at 100.

25 Stephen C. McCaffrey, ‘The Need for Flexibility in Freshwater Treaty Regimes’, 27 Natural Resources Forum (2003) 156–162 at 157.

and data-sharing as well as on measures to be taken in the case of exceptional cir-cumstances actualizing within the shared basin. These effectively contribute towards reducing tensions and (potentially) preventing conflicts between Parties. Further-more, water security is promoted when the measures and plans taken under the trans-boundary regime are consistent and directly linked with the national strategies and action programs of the riparian states. This is precisely what the EU Water Frame-work Directive requires from Member States.

Concrete mechanisms through which transboundary water agreements promote wa-ter security include, inwa-ter alia, notification requirements whereby Parties are obliged to notify each other on projects and plans that may have an effect on the basin. Par-ties may then consult each other and negotiate a solution that is the least harmful to the other riparian(s). Another common requirement that is intended to reduce concrete water security risks is dispute settlement within the framework and mecha-nisms provided by the agreement. A conflict or dispute may arise if a Party perceives that the shared basin is not governed according to its interests due to, for instance, the pollution of water or unequal allocation of the water resources. It is also possible that there is a risk of a greater (water) security threat emerging within the ambit of the treaty arrangement, for instance in the form of a direct conflict over the alloca-tion or use of scarce water resources.

Of the different aspects of water security, transboundary water treaties primarily ad-dress the need to prepare for water-related risks and to secure sustainable use of fresh-water resources. In contrast, the human right dimension of fresh-water security is not usu-ally directly addressed through water agreements among riparian states; and is instead accounted for in other regulations, be they national or international. In the same vein, transboundary water agreements often regulate the quantity rather than quality of the water. This enables the agreements to apply concrete mechanisms to share the waters among Parties and to determine between different, often competing, uses of the water resources. However, it is notable that the EU Water Framework Directive, which sets the framework for many transboundary freshwater agreements among the Member States, also sets a qualitative objective for the water: to achieve a ‘good eco-logical status’ for all surface water by 2015.²⁶

The main benefits of transboundary water agreements from the viewpoint of water security is that they address shared water management and development issues and may directly prescribe how to address issues and situations that are likely to cause conflicts; or, alternatively, encourage or allow Parties to enter negotiations aimed at addressing such issues and situations. A key requirement for the agreements is flex-ibility, which allows the agreements to react to changes and situations that were not foreseen at the time of their adoption.

26 Art. 4(1)(a)(ii) of the WFD.

The Role of EU Water Directives in Promoting Transboundary Water Cooperation and Water Security through Water Agreements – with a Special Focus on Finland