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Protocol on Water and Health by Bernd Warnat I. History and style of negotiations a) From “Instrument” to protocol At a press
conference held on 17 March 1999 at the Palace of Nations in Geneva, the responsible directors of the two subsidiary organisations of the United Nations ECE (Economic Commission for Europe) and the World Health
Organization’s Regional Office for Europe presented their Protocol on Water and Health to the world’s press. A journalist from a third world country incredulously asked why it should be Europe, of all places,
where a project such as this had successfully completed the rocky road from the initial idea to the finished international text, given that problems with water-related diseases are far more grave in other regions
of the world, such as south of the Sahara in Africa, the Arab states or Central and South America, than in Europe. Director Günther Klein of Copenhagen emphatically agreed with this assessment, and reported on his
recent talks with the Secretary-General of the World Health Organization, Dr. Brundtland. During these discussions, he said, they had been in accord that the European initiative should be adopted in other parts of
the world as a matter of urgency. To this end, however, appropriate mandates must be given to the responsible secretariats in these other parts of the world, e.g. via the Regional Committees of the World Health
Organization. An alternative response to this disarming question by the third world journalist could have been to outline the history of the Protocol on Water and Health to the 1992 Convention on
the Protection and Use of Transboundary Watercourses and International Lakes, now ready for signing in London on 17 June 1999. I can report on the history of the Protocol from my own experiences and attendance of
the key meetings from May 1997 onwards, and prior to that date, from a review of the files. The harmless word “Instrument” occurs for the first time in the Helsinki Declaration on Action for
Environment and Health in Europe, which was adopted at the Second European Conference on Environment and Health, held in Helsinki, Finland from 20 - 22 June 1994. After several references e.g. to the end of the
United Nations’ International Drinking Water Supply and Sanitation Decade or water-related infections such as hepatitis A and diarrhoeal diseases, the chapter on transboundary and European-wide measures also
states that, “In order to ensure that health considerations are given appropriate weight in determining action to be taken, we request WHO, in partnership with other relevant international organizations, to
intensify its contribution to the further elaboration and implementation of provisions regarding air, water and soil pollution in those environmental conventions which have among their aims the protection of human
health. These should also include the development of Instruments for effective implementation in countries. Such Instruments for effective implementation are: legislation ...”. In a footnote to this passage,
reference is also made to the ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes. On the basis of this mandate, at a meeting in November 1996 in Riga,
the European Environment and Health Committee resolved that an “international Instrument for the elimination of water-related disease” should be one of the principal outcomes of the planned Third Ministerial
Conference on Environment and Health in London in June 1999. A joint consultation between the UN/ECE and WHO on the elimination of water-related diseases subsequently took place in Kiev from 20 - 22 March 1997.
The Fifth Meeting of the European Environment and Health Committee on 26/27 June 1997 in Budapest then submitted a paper on an “International Instrument for the Prevention, Control and Reduction of Water-Related
Disease”, which was formulated as an invitation by the World Health Organization to the Parties to the ECE Convention to participate in the joint drafting of such a Instrument, which received the backing of the
Committee. The First Conference of the Parties to the ECE Convention following its entry into force was held in Helsinki from 2 to 4 July 1997. At this meeting, which was conducted more or less at working level
only, without ministerial involvement (contrary to the intentions of the Finnish hosts), this invitation by the WHO’s Regional Office for Europe was one of the items on the agenda. The outcome of these discussions
within the ECE was an agreement in principle to actively participate in the work to draft such an “international Instrument”. A small working group, chaired by Hungary with the participation of Russia, the
Ukraine, the United Kingdom and UNEP, as well as the WHO and the ECE, was appointed to carry out the preliminary work. The active support of the office of the Conference of the Parties to the Convention and the
Secretariat of the ECE was requested. A key outcome of the First Conference of the Parties to the ECE Convention was the inclusion of this point in the solemn Helsinki Declaration. On the basis of
this mandate, which was already fairly precise, leadership was transferred to the “two Alans” - Alan Pintér of the National Institute of Environmental Health in Budapest and Alan Simcock of the UK Department of
the Environment, Transport and the Regions. Alan Pintér chaired all meetings of the editorial group and the three intergovernmental meetings. In his work, he was supported most effectively by the appointed
rapporteur, Alan Simcock. Following meetings in early September and early October 1997, the small editorial group presented the first “elements of an [international Instrument] for the prevention, control and
reduction of water-related disease”. This 11-page document, 3 pages of which were a technical appendix defining water-related diseases, constituted the basis for an invitation to the first intergovernmental
meeting, held at the Gellert Hotel in Budapest from 11 - 13 February 1998. At this conference, the foundations were laid for a binding international agreement. Which interests and considerations
prompted the parties to move away from a further solemn declaration and opt instead for the World Health Organization’s first ever attempt to pursue an objective with an internationally binding agreement? The
weighting of western and eastern European nations in Budapest was more or less equal, whilst the Transatlantic members of the ECE were not present. The entire series of conferences on this Protocol also attracted
keen interest from the Holy See. Amongst western European nations, particularly at the EU co-ordination process which preceded the actual meetings, only Germany and Austria were unequivocally opposed to the
concept of a binding international legal instrument. Most of the other western European states, particularly Finland and the Netherlands, voiced the opinion that they would accept either a binding or a non-binding
instrument, and were therefore willing to concede to the wishes of the most severely affected states in central and eastern Europe in this respect. Once this group of principally affected states, led by the chair
country Hungary, had expressed their unequivocal support for a binding international instrument, the western European states followed suit, leaving Germany and Austria in a minority position. Admittedly, the
inter-governmental meeting explicitly invited Germany to participate in the editorial group, thus ensuring that the ‘sceptical component’ was also represented. Following further discussions in Bonn, I myself
joined the editorial working group in March. Since this time, I have been actively involved in the further elaboration of this Protocol. The subsequent stages can be summarised briefly. After two
meetings of the editorial working group, a second intergovernmental conference was held in Budapest from 21 - 23 September 1998, followed on 3 and 4 December 1998 by the concluding government conference in
Budapest. The latter was attended by some 100 individuals from 46 delegations (39 states, including all the EU states apart from Ireland, Luxembourg and Portugal, the Holy See, 4 international organisations and 2
non-governmental organisations). Following intensive negotiations, the conference adopted the finalised text of the draft Protocol by way of consensus. All participating delegations acceded to this consensus,
apart from Austria and Turkey. As well as the text of the draft Protocol, the Conference also adopted a draft resolution for the Ministerial Conference on Environment and Health in London. Finally, the conference
thanked Hungary for its hospitality and financial sponsorship of the entire negotiation process. As well as providing conference facilities for the three government conferences and meetings of the editorial group,
Hungary had also funded the travel and accommodation expenses for numerous participants from transitional states in eastern and south-eastern Europe. Against this background, the Netherlands proposed that the
Protocol be known as the “Budapest Protocol”, despite its intended signing in London, a suggestion which met with general applause. The conference thanked Dr. Pintér for his efficient management and Mr Simcock for
his highly constructive role as rapporteur in this negotiation process. After grappling with hundreds of individual formulation issues at great length, a well-developed international agreement had
emerged. This agreement subsequently acquired the rather understated title of a Protocol. Following on from the original wording, “Instrument for the prevention, control and reduction of
water-related disease”, the Parties had arrived at the positive title - “Protocol on Water and Health”. The second part of the title of this Convention, “To the 1992 Convention on the Protection
and Use of Transboundary Watercourses and International Lakes”, which will no doubt be dropped from common parlance, is aimed primarily at ensuring close ties between the organisational institutions of the
Protocol and the ECE Convention. To save costs, the Parties have decided to forego a separate secretariat or meeting of the Parties. Only time will tell whether the decision to hold the meetings of the Parties
jointly within a single week will provide sufficient scope for the necessary discussions on implementing these international instruments. b) In what style were the negotiations conducted? Clearly, issues of style are difficult to describe objectively. For this reason, I would like to emphasise that the
following comments are based on my own subjective impressions. I found it remarkable that, both in the plenary contributions to the intergovernmental meetings and in the many informal discussions
over coffee, the delegates, particularly those from central and eastern European states, were evidently arguing as lobbyists for health and the environment, rather than as representatives of the “virtual overall
interest” of their governments. They were asking, What is the most effective means of securing sufficient funds for water and health, given the fierce disputes within our governments over the allocation of
financial resources to various government purposes? This question was their principal motive in supporting an internationally binding instrument. The delegates of these states explicitly argued that reference to
an internationally binding instrument was the only means of securing adequate backing which would enable them to demand the necessary resources to improve health protection. Interestingly, a Swiss delegate also
added her voice to this chorus, adding that, in her experience, it was far easier to persuade international donor institutions in particular to support projects, if reference could be made to binding international
obligations. In the donor arena, statements of a declaratory nature, however solemn, were felt to be worth far less than genuine instruments of international law. II. Contents of the Protocol a) What are the objectives of the Protocol, and which Articles contain the operative provisions? Human health is the
starting point of all considerations. The first question faced by each Party to the Protocol individually, and by all Parties collectively, is that of the incidence of water-related diseases. Contrary to original
intentions, the Protocol does not contain a definition of water-related diseases. On the other hand, experts are in complete accord on which categories of disease require particular consideration.
On the basis of these initial considerations, it is then necessary to determine the types of water pollution which are causing these water-related diseases. To prevent such pollution from contaminating water used
by humans, the paramount concern must therefore be to reduce water pollution, or phrased more positively, to improve the quality of aquatic ecosystems. Article 6 of the Convention contains a long list of topics
which must be addressed with respect to achieving these targets. In all areas where deficits are apparent, the Parties must set out the targets they aim to achieve in the short or long term. Regarding this list of
topics in article 6, another factor worth considering is that, in order to preserve health standards, it may be important to ensure the long-term maintenance of certain quality levels in selected areas , and take
action to avert possible setbacks. A second approach is the assumption that in most developed societies, it will be impossible to maintain the entire water regime so comprehensively that all water
supplies accessible from any given location are completely safe to human health. As such, the aim should be to focus on ensuring that those water supplies available for human use in particular are maintained in an
exceptionally good condition. For this reason, the level of connection to public water supplies must be increased, and measures taken to ensure a high technical quality of the supply systems, as well as of the
staff involved in the extraction, distribution and monitoring of water. Here too, the list of topics in article 6 contains a number of areas devoted specifically to this issue, whilst Article 9 contains provisions
on the education and training of persons employed in these areas. The next aspect assumes that it will be impossible, at least for a transitional period, to reliably prevent all outbreaks of
water-related disease via preventive action. In the event of such disease breakouts occurring, measures must be taken to ensure their prompt identification, and immediate notification of all parties capable of
ameliorating such outbreaks. In this respect, the provisions in articles 8, 9 and 10 in particular describe all the measures which may expediently be taken in this area. b) How do the Parties intend to achieve or approximate these targets? The Protocol’s approach is political, rather than legal in the narrower sense of the word. It
makes no attempt to impose a uniform concept of minimum requirements on all parties. Instead, the Protocol assumes that motivation for attaining targets and sub-targets will be greatest if these are placed within
the context of a national opinion-forming process, which should be as broad-based as possible. The Protocol merely obligates the parties to notify the international community of these self-imposed
targets, and to report periodically to the same forum on progress made towards attaining them. The thinking behind this process at international level is that the individual states will encourage one another to
ever greater efforts and exchange their experiences with different viewpoints and approaches. Of course, it is also hoped that the discussion at international level will help prepare the ground for further
development of bilateral and multilateral aid from donor countries and donor organisations.
c) Is there a hierarchy of targets? In this respect, too, the Protocol is an open, flexible mechanism, although admittedly it does give some indications as to the order in which to proceed and the
general approach to problems. However, it is left up to the Parties to concentrate on those areas which they feel, on the basis of their own findings and experience, offer the greatest degree of resource
efficiency. Without a doubt, access to clean, safe drinking water for every man and woman is at the top of the list of recommended priorities. At the same time, however, it is made clear that action
should be taken at the earliest possible stage in the water cycle, in the form of integrated, trans-sector protection of all water ecosystems. Certainly, it would contravene the spirit of this Protocol if a Party
were to resort to achieving improvements by installing water treatment facilities at the end of the cycle. Wherever possible, water should not be polluted and contaminated in the first place, so that any water
treatment measures which may be required at the end can be kept within narrow limits.
d) Secretariat, meeting of the Parties and concluding provisions The provision on the meeting of the Parties in Article 16 and the concluding provisions in Articles 18 to 26 have essentially been adopted
from the “parent convention”, the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes. The only new aspect is the attempt to pave the way for meetings to be held in
conjunction with the meetings of the Parties to the Convention, in the first two paragraphs of article 16. Also new is the intention to forego a separate Secretariat for this Convention, via the
provisions in Article 17, which states that the Secretariats of the ECE and the Regional Office for Europe of the World Health Organization are to carry out these functions jointly. In this area in particular, it
remains to be seen whether the excellent co-operation observed during the phase of drafting the Protocol can be maintained throughout its implementation. III. Outlook a) How will compliance with the obligations be monitored? Given the fundamental concept on which this Protocol is based, namely that each
Party is to set its own targets, the issue of controlling compliance with the obligations assumes a special significance. It is not a question of complying with obligations laid down in the Protocol as minimum
requirements, but rather one of procedural control. The question should read, “Have all the Parties taken the necessary steps at national level to achieve progress in the spirit of the Protocol?” With this in
mind, Article 15 of the Protocol requires that the agenda for the meeting of the Parties should include multilateral arrangements of a non-confrontational, non-judicial and consultative nature for reviewing
compliance. Ideally, such arrangements should not lead to any concrete agreements until some experience with the application of this aspect of the Protocol has been acquired. In my opinion, this issue should not
be addressed until the second, or better still, the third, meeting of the Parties, i.e. nine years after entry into force of the Protocol. b) Which questions should we be asking in three, five or ten years’ time? Looking back at this account of the groundwork for an internationally binding convention and
the style of the negotiations, I can well imagine the following questions being posed in years to come: Has signing and ratification of the Protocol actually helped to raise the status of health and water issues in the national struggle for allocation of resources and amongst international donor
organisations? In those countries which now have the largest deficits in terms of a healthy water supply, has the Protocol actually succeeded in setting in motion the broad-based public discussion
process it hoped to achieve? How has the number of water-related diseases developed within the scope of validity of the Protocol? Have water-related diseases in this region been reduced more
effectively than in a given comparable group of states? In addition, ten or fifteen years from now, perhaps we should also be asking whether or not the process begun in the ECE/WHO European region
has been taken up in other parts of the world. Has the idea of tackling such problems with the aid of a binding international instrument spread through the world like wildfire, or has it remained an isolated
European approach?
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