Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?

May 16th, 2016

The following essay by Dr. Götz Reichert is a summary of his recent published article entitled: Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?, which appears in Vol. 1.1., 2016, pp. 1–111, of Brill Research Perspectives in International Water LawDr. Reichert is head of the Environment Department at the Centre for European Policy in Freiburg, Germany. He can reached at goetz.reichert [at] t-online.de.

Europe’s diverse aquatic environments continue to face pressure, often suffering from pollution, over-abstraction, morphological alterations, loss of biodiversity, floods and droughts. Throughout the European continent, 75 transboundary river basins have been identified. Given that over 60% of the European Union (EU) is covered by transboundary river basins and 70% of European catchment areas are shared between EU Member States and other European countries, pressures on rivers, lakes and aquifers constitute a considerable challenge to international cooperation. In Transboundary Water Cooperation in Europe, I analyze the multidimensional regime for the protection and management of European transboundary freshwater resources, which is composed of different but increasingly intertwined legal systems: international water law, water law of the European Union (EU), and domestic water legislation.

Götz Reichert, Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?, Brill Research Perspectives in International Water Law, Vol. 1.1., 2016, pp. 1–111

The emergence of this complex regime was triggered and facilitated by a general paradigm shift in water policy and law in the 1980s and 1990s towards an ecosystem-oriented approach, which is guided by the overall leitmotif of sustainable development and operationalized through the concept of integrated water resources management. It is based on the notion that the various components of the aquatic environment should be managed in an integrated manner throughout their natural catchment area, irrespective of administrative or national boundaries. Consequently, the different legal systems applying to transboundary freshwater resources in Europe are also increasingly interlinked and harmonized so as to function as an integrated whole. In order to shed light on the nature, fabric, and functioning of the resulting multidimensional regime, my article takes a closer look at its various dimensions.

Today, there are over 100 bi- and multilateral international agreements pertaining to rivers, lakes and aquifers in basins and sub-basins shared by riparian countries throughout the European continent, ranging from the two global framework conventions to basin-specific agreements. The first part of the article provides an overview of the origins, regulatory structure and main substantive and managerial elements of current international water law in Europe. It shows that the obligations of the EU, its Member States and other European countries, as parties to various international water agreements in Europe, function as “transmission belts” for the transposition of substantive and managerial provisions from international water law to EU water law and the domestic water legislation of EU Member States and other European countries.

Since 2000, however, the EU’s Water Framework Directive 2000/60/EC (WFD) has generated the defining impulses for the further development of the unfolding regime on transboundary freshwater resources in Europe. Most importantly, the WFD set the legally binding objective of attaining “good water status” by the end of 2015. Accordingly, the second part of the article provides for an accessible introduction to the unique legal nature and normative clout of EU water law, which is indispensable to understand transboundary water cooperation in Europe. It focusses on the main substantive and managerial elements of current EU water law relevant for cooperation between riparian countries, both within the EU and beyond. The pivotal instrument in this respect is the international river basin management plan, which is provided for by EU water law, but may be developed and implemented within international river commissions established under international water law. In this way, substantive and managerial provisions of EU water law are transposed to international water law in Europe.

Against the background of this hybrid interface between the different dimensions of the transboundary water regime in Europe, the third part of the article looks at the resulting integration of EU water law and international water law. Illustrated with examples of internationally shared river basins, such as the Danube and the Rhine, the analysis demonstrates that EU water law is, to a growing extent, influencing transboundary water cooperation not only within the European Union, but also beyond its territory.

Given the recently expired deadline for attaining the WFD’s objective of attaining “good water status” and the mixed results transboundary water cooperation has yielded so far, the article finally asks whether the elaborate and complex regime for the protection and management of transboundary freshwater resources in Europe is actually living up to its ambitious aspirations. In this respect, I suggest an optimistic conclusion. The different legal dimensions of the regime have the potential to fulfill those functions they are most capable of performing, thereby allowing for the development of solutions tailored to the particular needs of a specific freshwater ecosystem. EU water law has introduced a common vision, objective, terminology and managerial framework, thereby creating overall compatibility and complementarity within the regime. Furthermore, the normative clout of EU water law creates legally binding obligations for EU Member States and provides for robust enforcement procedures under judicial review. With regard to procedural and managerial aspects in a transboundary context, international river commissions established under international water law provide a stable institutional framework for the development of expertise, mutual trust and common approaches on transboundary water cooperation. On this basis, the multidimensional regime for the sustainable protection and integrated management of transboundary freshwater resources in Europe has the potential to be further developed in order to fulfill its goals.

The entire article is available here.

New Journal: Brill Research Perspectives – International Water Law

May 13th, 2016

Brill Research Perspectives – International Water LawIn April 2016, the publishing house, Brill, launched a new journal entitled Brill Research Perspectives – International Water Law (IWL Journal). The IWL Journal is a quarterly publication that targets monographs deemed too long for a typical journal article and too short for a book, typically in the range of 25,000 to 45,000 words. Thus, the IWLP Journal has carved out a niche that will not compete with other water journals, but rather provide in depth analysis of critical issues pertaining to international water law.

The Editor-in-Chief of International Water Law Journal is Dr. Salman M. A. Salman, who is a Fellow with the International Water Resources Association (IWRA). The editorial board consists of Professor Laurence Boisson de Chazournes, Professor Gabriel Eckstein, Professor Lilian del Castillo-Laborde, Professor Alistair Rieu-Clarke, Dr. Makane Moise-Mbengue, and Dr. Kishor Uprety. More information about International Water Law Journal can be found at: www.Brill.com/rpwl.

In an effort to disseminate widely the important articles that will be published in this journal, Brill and the International Water Law Project Blog have teamed up to present summaries of articles appearing in the IWL Journal as they are published.

The monograph for the first issue of IWL is authored by Dr. Gotz Reichert, and titled “Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?” An essay summarizing that inaugural article will be forthcoming on the IWLP Blog on Monday, 16 May 2016.

The Newest Transboundary Aquifer Agreement: Jordan and Saudi Arabia Cooperate Over the Al-Sag /Al-Disi Aquifer

August 31st, 2015

By Gabriel Eckstein

By any standard, Jordan and Saudi Arabia are two of the most water-scarce countries on the globe (see here and here). Hence, it is no surprise that the neighbors have long looked to the Al-Sag /Al-Disi Aquifer on their shared border as a partial source for relief. Until recently, though, competing water needs and a lack of knowledge about the aquifer complicated efforts at compromise. That complexity appears to have been surmounted. On 30 April 2015, the Hashemite Kingdom of Jordan and the Kingdom of Saudi Arabia entered into an agreement for the Management and Utilization of the Ground Waters in the Al-Sag /Al-Disi Layer (Arabic original / unofficial English translation).

Saq-Ram Aquifer Map

Saq-Ram Aquifer

 

The Aquifer

The Aquifer, known as Al Sag in Saudi Arabia and Al-Disi in Jordan, is a fossil transboundary aquifer containing water that accumulated 10,000-30,000 years ago. It is part of the western section of the Saq-Ram Aquifer System, a Paleozoic carbonate aquifer that spans nearly 308,000 km2 and is estimated to hold as much as 10 km3 of water in Jordan and 65 km3 in Saudi Arabia (see here).

Use of the Aquifer’s Water

Both countries began exploiting the Al-Sag /Al-Disi Aquifer in the late 1970s and 1980s soon after its discovery. In the 1980s, Saudi Arabia dramatically increased its extractions to support its wheat production. As a result, groundwater, which typically flowed toward Jordan, reversed to flow toward the Saudi well field. While Saudi Arabia greatly reduced its extractions in the 1990s, Saudi withdrawals in 2008 were estimated at over 1,000 MCM (see here).

In Jordan, the Al-Sag /Al-Disi Aquifer was initially only used as a local water supply. In the late 1980s, Jordan began developing agricultural activities along its southern border and now withdraws some 60 MCM. To overcome water scarcity in other regions of the country, in the 1990s Jordan conceived the Disi Water Conveyance Project (DWCP) to extract an additional 100-150 MCM of water that would flow through a 325 km pipeline from Disi to Amman. While the project failed to obtain World Bank support, Jordan pursued the DWCP on a build-operate-transfer basis with a Turkish contractor and water began flowing to Amman in 2013 (see here and here). The project became especially controversial in 2009 when an independent study revealed that water in the aquifer contained naturally-occurring radiation (20 times international levels regarded safe for drinking) and posed a potential health hazard (see here). Subsequent Jordanian tests claimed the water met all safety standards when diluted with clean water (see here).

Disi Water Pipeline (from Ferraginaa & Greco (2008). The Disi project: an internal/external analysis, Water International, Vol. 33(4)

Disi Water Pipeline (from Ferraginaa & Greco (2008). The Disi project: an internal/external analysis, Water International, Vol. 33(4)).

The Agreement

The Agreement over the Al-Sag /Al-Disi Aquifer is concise with four main articles. Article One contains terms and definitions; Article Two describes the main norms for managing the aquifer; Article Three discusses the creation and responsibilities of a Joint Saudi/Jordanian Technical Committee; and Article Four contains administrative provisions related to the implementation of the Agreement.

Notwithstanding its minimalist approach, the Agreement is noteworthy in a number of important ways. As a general matter, its very nature as an agreement over a transboundary aquifer is unique since today there is only one transboundary aquifer globally with a comprehensive management regime and two with more rudimentary consultative and data sharing arrangements (see here). This is in sharp contrast to the over 3,600 treaties relating to the use of transboundary surface waters that have been catalogued since 800 CE (see here).

More specifically, the Agreement imposes no numerical limitations on extractions. Rather, Article 2(1) creates a “Protected Area” of approximately 400 km2 within each country along the border where “all activities … which depend on the extraction of groundwater therefrom” must be discontinued within five years. In addition, Article 2(2) requires the Parties to maintain the Protected Area free from all activities that require groundwater. In effect, it creates a forbidden zone between the well fields of the two nations. When looking at the map accompanying the Agreement and the straight lines demarcating the Protected Area, it is unclear whether this zone is the result of unique hydrogeological conditions, or simply based on a desire to maintain a geographical buffer zone between the two parties.

In addition, the Agreement creates a broader “Management Area” that encompasses the Protected Area and spans approximately 1,000 km2 in each country.  Although water extractions are permitted from within the Management Area, but outside of the Protected Area, they are limited solely for municipal purposes. While the aquifer extends beyond the Management Area on both sides of the border, these regions are not subject to the Agreement. Whether this is intentional is unclear, however, some studies indicate that some sections of the aquifer are less productive while others are at depths where extraction is not economical (see here).

Read together, these provisions effectively protect ongoing water projects supplying villages and cities in both nations, including the DWCP. They also ensure both nations’ extractions for agricultural and other purposes in areas outside of each country’s Management Area. This is especially important for Saudi Arabia, since a large portion of the aquifer lies in that country. The absence of more detailed pumping restrictions, however, could be worrisome in the long run as projections indicate that current pumping rates will deplete the aquifer in Jordan by mid-century and in Saudi Arabia shortly thereafter (see here).

Also noteworthy is the near absolute prohibition in the Agreement on groundwater pollution. Article 2(4) prohibits horizontal or slant wells explicitly to avoid aquifer pollution, while Article 2(5) creates an affirmative obligation to both protect groundwater against “any pollution” as well as prevent the injection of “any pollutant” into the aquifer. The only caveat is the fact that these obligations are limited to the Management Area; there are no pollution-related or other provisions pertaining to areas outside of the Management Area.

A further unique development found in the Agreement is the creation of a Joint Technical Committee (JTC). It is unique because relatively few agreements over transboundary surface water, and only one for a shared aquifer, have created such mechanisms. In the case of the Al-Sag/Al-Disi Aquifer, while the JTC is entrusted with “the supervision of the implementation of the terms of this Agreement,” it does not have any decision-making authority. Rather, under Article 3(4), it is primarily responsible for monitoring both the quantity and quality of extractions, collecting and exchanging information, analyzing collected data, and submitting their findings to the competent authorities in both nations. Accordingly, it may be argued that derivative to the creation of the JTC is the Agreement’s recognition of the international water law principles of exchange of information and ongoing monitoring, as well as the more progressive notion that such endeavors should be pursued jointly (see Art. 2(3)).

While the Agreement is notable for what it includes, it is also significant for what is conspicuously absent from the text. Under contemporary international water law, including trends identified in the emerging international law of transboundary aquifers (see here), two cornerstone principles require: equitable and reasonable utilization, and no significant harm. Neither norm appears explicitly in the Agreement. Possibly, the prohibitions on extraction and types of uses within, as well as the de facto permissible uses outside of, the Management Area could be interpreted as a form of equitable and reasonable utilization. Similarly, the prohibitions on the pollution of the aquifer could be deemed a variation on the rule of no significant harm, at least for purposes of ensuring water quality. Such analyses could be investigated further through access to the negotiators and any documentation that underpinned the Agreement.

One additional well-accepted norm of international water law that is missing from the Agreement: prior notice of planned measures that may have a transboundary effect. However, since all activities requiring groundwater are prohibited in the Protected Area, and limited to municipal purposes in the remaining section of the Management Area, such notice obligations may be superfluous. Of course, it is unclear whether activities in other sections of the aquifer that traverse the Jordanian-Saudi border could have transboundary consequences.

Conclusion

Of the more than 600 transboundary aquifers and ground water systems that have been identified globally (see here), only a miniscule number have any cooperative arrangement among these critical subsurface water resources. Accordingly, the Agreement over the Al-Sag /Al-Disi Aquifer is a significant milestone. It suggests that states may be beginning to recognize the importance of their transboundary aquifers and the need to cooperate with their neighbors. Hopefully others will soon follow suit.

The Kishenganga Awards and their Contributions to International Water Law

August 5th, 2015

The following post is by Dr. Mara Tignino, Senior Lecturer and Coordinator of the Platform for International Water Law, Faculty of Law, University of Geneva. She can be reached at Mara.Tignino [at] unige.ch.

 

In May 2010, Pakistan initiated an arbitration proceeding against India concerning the construction of a hydroelectric infrastructure project (“KHEP”) undertaken by India on the Kishenganga River—part of the Indus River basin. The KHEP is situated in India-administered Jammu and Kashmir in north-west India, about 12 kilometres upstream of the Line of Control with Pakistan-administered Jammu and Kashmir, and is aimed at producing hydropower via a diversion of the River’s flow. Once completed, the diverted waters would flow through a tunnel around 23.5 kilometres long toward a power facility situated 666 meters below the Kishenganga dam. The water will then be redirected into Wular Lake and the River Jhelum, which flows into the territory of Pakistan. The falling water would drive turbines producing about 330 megawatts of electricity. According to Pakistan, the KHEP will have an impact on water flow downstream in Pakistan and affect its own production of hydropower.

Kishenganga Hydroelectric Project (Source: Partial Award, p.51)

Kishenganga Hydroelectric Project (Source: Partial Award, p.51)

The uses of the Indus River and its tributaries are regulated by the Indus Waters Treaty, adopted by India, Pakistan and the International Bank for Reconstruction and Development (IBRD) in 1960. Article IX of the treaty provides for the establishment of mechanisms for the settlement of differences and disputes between the two States. As a result of Pakistan’s request, an arbitral tribunal composed of seven arbiters was established under article IX, which subsequently issued four decisions: an Order on Interim Measures in September 2011, based on an application made by Pakistan in June 2011, a Partial Award in February 2013, a Decision on India’s Request for Clarification or Interpretation in May 2013, and a Final Award, issued in December 2013. All four decisions were adopted unanimously.

Signed after ten years of negotiations, the Indus Waters Treaty represented an ambitious landmark in the development of international water law. The treaty is emblematic of the potential for international law to facilitate cooperation in the governance of international watercourses. As emphasized by the tribunal itself, the treaty has been continuously applied for over 50 years, despite recurring hostilities in the Kashmir region, including three episodes of direct armed conflict between India and Pakistan. In fact, while Pakistan had made use of the dispute settlement procedures of the treaty once before—in 2006, it requested the intervention of a Neutral Expert under article IX in the case of the Baglihar hydropower project—this was the first time that an arbitral tribunal had been established to settle a dispute concerning the application and the interpretation of the treaty.

Much as the treaty itself contributed to the development of substantive law on international watercourses, both the process and outcome of the arbitration offered noteworthy innovations in the settlement of disputes on transboundary water resources:

  1. In procedural terms, the inclusion of an engineer among the members of the tribunal offered an interesting approach to balancing the needs for various forms of expertise in the determination of the issues (the Neutral Expert charged with resolution of the 2007 Baglihar dispute was also an engineer). The presence of technical experts as equal participants in dispute settlement mechanisms facilitates the understanding of complex factual issues related to the construction and exploitation of hydropower infrastructures.
  2. From the perspective of substantial international environmental law, the recognition in the award of an obligation to ensure a minimum environmental flow in an international watercourse offers a possible indicator of future developments. The tribunal held that India could divert waters from the Kishenganga River, but that it had to ensure a continuing minimum flow rate of 9 cubic meters of water per second in the River itself (Final Award, p.326). Parties must provide the Permanent Indus Commission with daily data on River flows and the information on the inputs and withdrawals of water from the reservoir. According to the arbiters, the Commission is the most appropriate mechanism to ensure the exchange of data and monitoring of the uses of the tributaries of the Indus River (Final Award, par.121).
  3. Strikingly, the judges rejected the application of the precautionary principle to the case. Pakistan had argued that the flows of the Indus tributaries at the Line of Control are difficult to measure, and the Parties gave different estimations of future minimum flow levels. The tribunal recognized future flows levels would be uncertain, depending both on future uses and on factors outside the control of either India or Pakistan, such as climate change (Final Award, par.117). Rather than basing their judgment on the precautionary principle, they chose to account for this uncertainty by requiring India to finalise the KHEP in a manner that would allow for responsiveness to future variations in flow levels.
  4. Finally, the tribunal offered a lynchpin for the sustainability of this approach by creating a window for reconsideration: if, within seven years after the diversion of the Kishenganga River is finalized, one of the Parties considers it necessary to review the quantity of the minimum environmental flow as decided by the arbitral tribunal, the flow will be submitted to the Permanent Indus Commission or other mechanisms established by the Treaty (Final Award, par.119).
Members of the Court of Arbitration, 20 August 2012 Standing : H.E. Judge Peter Tomka, Judge Bruno Simma, Professor Lucius Caflisch, Professor Jan Paulsson. Seated : Sir Franklin Berman KCMG QC, Judge Stephen M. Schwebel (Chairman), Professor Howard S. Wheater FREng

Members of the Court of Arbitration, 20 August 2012
Standing: H.E. Judge Peter Tomka, Judge Bruno Simma, Professor Lucius Caflisch, Professor Jan Paulsson. Seated: Sir Franklin Berman KCMG QC, Judge Stephen M. Schwebel (Chairman), Professor Howard S. Wheater FREng

The decisions of the arbitral tribunal specify the general obligations related to the construction of hydroelectric projects upstream and downstream of an international watercourse. Thus, the Tribunal affirms that “There is no doubt that States are required under contemporary customary law to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering State” (Partial Award, par.449), and takes note of the principle of sustainable development, the obligation to carry out a transboundary environmental impact assessment and the broader duty to avoid transboundary harm (Partial Award, pars. 448-451). In considering these obligations both in terms of conventional law, according to the Indus Waters Treaty, and in terms of customary law, the arbiters have contributed to the development and clarification of general principles of international water law relating to the environmental protection of transboundary water resources.

The Helmand River and the Afghan-Iranian Treaty of 1973

July 23rd, 2015

The following post is by Dr. Glen Hearns, principle with Eco-Logical Resolutions, a consultancy based in Vancouver, Canada, specializing in resource management and decision making, facilitation, conflict resolution and strategic planning. Between 2012-2014, Dr. Hearns served as transboundary water advisor to the government of Afghanistan. He can be reached at ghearns [at] ecol-logical-resolutions.com.

 

The Helmand River and its major tributary, the Arghandab, drain 43% of Afghanistan including most of the southern part of the country. It has an average discharge of approximately 140m3/s, but is highly variable both annually and seasonally as the waters are primarily snow melt from the ridge of mountains running through the center of the country.  These include the Sia Koh Mountains and the Parwan Mountains northwest of Kabul.

The Helmand River flows some 1150 km before reaching the Sistan wetlands, a series of shallow marsh lakes (Hamuns) in southwest Afghanistan and eastern Iran (Figure 1). During high flows they form a series of interconnected lakes that flow in an anti-clockwise manner from Afghanistan to Iran. The wetlands are fed predominantly by Afghan rivers, the largest of which is the Helmand, and form a particularly diverse ecosystem important for migratory birds. Just prior to reaching the border, the Helmand River bifurcates at a point known as Helmand Fork. The Shele Charak River (called the Common Parian in Iran) flows northward, forming the border between Iran and Afghanistan and subsequently branches out to form the Hamun-e-Puzak. The other part of the fork flows westward into Iran, forming the Sistan River and eventually draining into the marshy lake, Hamun-e-Helmand (Figure 1).

Figure 1. Sistan Wetlands and Helmand Basin (Source: Wikipedia Maps)

Figure 1. Sistan Wetlands and Helmand Basin (Source: Wikipedia Maps)

The 1973 Helmand River Treaty is the only agreement that Afghanistan has that specifically addresses water allocations. The Helmand River and Sistan area have been the source of contention since the late 1800s. Various attempts to resolve the disputes were undertaken, including with U.S. assistance to form a fact-finding Helmand River Delta Commission, which developed recommendation in 1951.  The 1973 agreement follows those recommendations to supply Iran with an average 22 m3/s, and includes an additional 4 m3/s for “goodwill and brotherly relations”. The Treaty also establishes a new Helmand Commission to administer the provisions of the agreement (Art. VIII).  Monthly flow deliveries are specified in Article II of the treaty for “normal water years”, which is defined in Article 1(c) as a year with total flows upstream of Kajaki Dam at Dehrawud that are at least 5661 mcm between 1 October and the following 30 September. The Helmand Treaty is flexible in that in low flow years, provisions are made to reduce the flow allocated to Iran in proportion to their measured deviation from a normal year for any given month or months (Art. IV).

The Treaty specifies where Afghanistan is to deliver water flows to Iran: i) the boundary line at the Sistan River, and ii) between markers 51 and 52 on the Helmand River (Art. III(a)).  In addition to the quantities specified, Afghanistan must supply water of a quality that can be treated, if necessary, for use in irrigation and domestic use (Art. VI). This requirement effectively places the burden on Iran to treat the water for its purposes.

Of importance is that Afghanistan retains all the rights to the balance of the water and may “make such use or disposition of the water as it chooses” (Art. V). This privilege, however, must be balanced with Article XI, which acknowledges the importance of continued flow to the Helmand Delta, and admonishes that if flow is stopped, the Commissioners must develop plans to minimize the problem.

What is very clear is that Iran can make “no claim to the water of the Helmand River in excess of the amounts specified in this Treaty, even if additional amounts of water may be available in the Helmand Lower Delta and may be put to a beneficial use” (Art. 5). Consequently, if it is shown that Iran is taking more than 811 mcm/yr (per Article 3), it would be in clear breach of the Treaty.

Both Iran and Afghanistan have the ability to monitor each other to ensure that they remain in compliance with the Treaty. The Treaty specifies that during low flow years, the Iranian Commissioner has access to flow measurements at Dehrawud, and is even allowed to observe the flow and take his own measurements (Protocol 1, Art. 5). Additionally, both the Afghan and Iranian Commissioners are to jointly measure the delivery of water to Iran (Protocol 1, Art. 6). In practice, information from Dehrawud is made available on an ongoing basis, albeit not consistently, as the Commission does not always meet every year. Also, delivery of water to Iran is not adequately monitored according to Afghan officials.

Differences between the parties must be resolved through diplomatic means, or thereafter with the good offices of a third party. Failing resolution, Protocol 2 outlines a detailed arbitration process that includes fact-finding and creation of an Arbitration Tribunal. Should the parties not agree upon a suitable Chair of the Arbitration Tribunal, the United Nations shall be requested to appoint one.

While the Iranians have suggested reviewing the Treaty, the instrument has no sunset clause and exists in perpetuity. Also, the Treaty does not cover groundwater, which is also being extracted by Iran.

Regardless of the challenges, the status of the Treaty is secure. The Helmand Commission meets, hydraulic information is exchanged (but not from Dehrawud station as it has been out of commission for many years), and in 2001 the Iranians went to the United Nations to complain that Afghanistan was not releasing water from Kajaki and were in breach of Article 5 of the Treaty. The language used in the complaint demonstrates the Iranians feel the treaty is valid and in force.

The major issue today in the Helmand Basin is Afghanistan’s pursuit of water resource development projects. It is renovating Kajaki Dam, and is constructing Kamal Khan on the Lower Helmand River. It is also considering constructing Bakshabad Dam on the Farah River. These developments are unlikely to go over well with neighbouring Iran, which may well be taking more than its “guaranteed” share of water under the Helmand Treaty.  A 2006 study conducted, in part, by Iran’s Water Research Institute of the Ministry of Energy, indicated that Iran had developed storage and irrigation infrastructure from the Helmand and Shele Charak rivers with a delivery capacity in excess of what is permitted under the Treaty. The report goes on to indicate that the 1973 Treaty has very limited value for Iran and mainly guarantees drinking water supply.

While Afghanistan badly needs development, how it will balance that objective with the needs of Iranian water users, as well as the environmental needs of the Sistan wetlands, will be a delicate act.

Online Presentations on International Water Law and Policy

June 18th, 2015

By Gabriel Eckstein

In recent years, technology has allowed us to become more informed and engaged at greater distances. This includes viewing lectures and presentations via the Internet. I wanted to draw your attention to a number of presentations on international water law and policy that were recently posted online and that may be of interest. If any of you know of other relevant lectures online, please do let me know via the comment box below or at iwlpwebsite [at] gmail.com.

On 22 May 2015, the Strathclyde Centre for Environmental Law and Governance at the University of Strathclyde in Glasgow, Scotland, organized two lectures as part of its SCELG Seminar Series.

Entry into Force of the United Nations Watercourses Convention: Why Should it Matter

Dr. Salman M.A. Salman, fellow with the International Water Resources Association, delivered a lecture in which he outlined the progressive development leading to the adoption of the United Nations Watercourses Convention, and comprehensively explained the importance and relevance of the Convention now it has entered into force. The seminar was supported by the Scottish Government.    View the presentation here.

Transboundary Aquifers: An Interdisciplinary Conversation

Prof. Gabriel Eckstein, Professor of Law at Texas A&M University, gave a guest lecture on the challenges for transboundary aquifer law and governance. The lecture was followed by a roundtable discussion that also included an esteemed panel from the fields of hydrogeology (Prof. Robert Kalin, University of Strathclyde), human geography (Dr. Naho Mirumachi, King’s College London), and international water law (Dr. Salman M.A. Salman, International Water Resources Association).    View the presentation and roundtable here.

Over the past few years, United Nations Audiovisual Library of International Law has organized a lectures series on various international issues, including International Watercourses.

Dr. Stephen C. McCaffrey, Distinguished Professor and Scholar at the University of the Pacific McGeorge School of Law, delivered a lecture on The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. This lecture provides an overview of the background and content of the Convention, and then examines the Convention’s influence. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

Dr. Salman M.A. Salman presented a lecture on The Evolution, Codification and Current Status of International Water Law. The lecture describes the developments in international water law since 1911. It reviews and analyzes the work of the Institute of International Law, the International Law Association, and the International Law Commission, paying particular attention to the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

Not long before he passed away in 2013,  Ambassador Chusei Yamada, who served on the ILC during the drafting of the UN Watercourses Convention and later as Special Rapporteur for the ILC’s Draft Articles on the Law of Transboundary Aquifers, delivered a lecture on Codification of the Law on Transboundary Aquifers (Groundwaters) by the United Nations. The lecture describes how the UN International Law Commission, a subsidiary organ of the UN General Assembly with the mandate of codification of customary international law, formulated Draft Articles on the Law of Transboundary Aquifers (groundwaters) for the proper management of the transboundary aquifers in order to attain the reasonable and equitable utilization through international cooperation. The lecture is available in Arabic, English, Chinese, French, Russian, and Spanish and can be viewed here.

The Global Environmental Facility Groundwater Community of Practice, coordinated by UNESCO-IHP, has featured a of seminars on groundwater law and policy.

Webinar #1, which took place 17 October 2013, was entitled Multiple Dimensions of Groundwater Governance: What We Are Doing and What More Can We Do? The video and webinar material can be accessed here.

Webinar #2, which took place 11 December 2013, was entitled Groundwater and International Law: Current Status and Recent Developments. The video and webinar material can be accessed here.

Webinar #3, which took place 29 April 2014, was entitled The Coastal Zone: Where Groundwater Merges With the Sea. The video and webinar material can be accessed here.

On 15 January 2015, IGRAC and UNESCO-IHP organized the IW:LEARN Groundwater Webinar entitled: Moving with the Momentum: Reviewing Lessons for Groundwater from 2014 and a Looking Ahead to 2015. Part I of this program can be accessed here  /  Part II can be accessed here.

 

IWLP Blog’s Series on 1997 UN Watercourses Convention Republished in Water Policy Journal and in Russian translation

February 26th, 2015

By Gabriel Eckstein

As you may recall, the IWLP Blog recently featured a series of twelve essays on the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses.  That series was recently republished in Water Policy, a journal published by the International Water Association and the official journal of the World Water Council.

Part I, containing the first 6 essays, was published as: Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into Force of the UN Watercourses Convention 2014:  Part One. Water Policy, Vol. 16(6), available at doi: 10.2166/wp.2014.008 (subscription required).

Part II, containing the next 6 essays was published as: Specially Invited Opinions and Research Report of the International Water Law Project: Global Perspectives on the Entry into Force of the UN Watercourses Convention 2014:  Part Two. Water Policy, Vol. 17(1), available at doi: 10.2166/wp.2014.009 (subscription required).

In addition, the entire series was translated into Russian by the Scientific Information Center of the Interstate Coordination Water Commission of Central Asia. That version can be found here.

State of Palestine Accedes to UN Watercourses Convention

January 7th, 2015
Jordan River Basin

Jordan River Basin

By Gabriel Eckstein

 

On 6 January 2015, the Secretary-General of the United Nations, acting in his capacity as depositary for the UN Watercourses Convention, issued a formal notice that the “State of Palestine” had acceded to the Convention and that the treaty would enter into force for the “State of Palestine” on 2 April 2015. That will make the “State of Palestine” the 36th Party to the UN Watercourses Convention. The Convention formally went into force on 17 August 2014 (see here).

The move was part of a broad Palestinian effort to join eighteen international treaties (see here and here). While Palestinian membership in the Rome Statute of the International Criminal Court has overshadowed all of the other ratifications, the accession to the Watercourses Convention is noteworthy in a number of respects.

Of the 36 Member States, nine (including the “State of Palestine”) are from the Middle East and North Africa, indicating that a substantial percentage of the region’s nations are committed to the terms and norms of the UN Watercourses Convention. In addition, with this accession to the Convention, Israel is now the only state in the Jordan River Basin to not have joined the treaty. Jordan, Lebanon, and Syria – all riparians to the Jordan River Basin – became Parties to the Convention in 1999, 1999, and 1998, respectively (see here).

Whether this reality will have any bearing on future hydro-diplomacy or management of the Jordan River remains to be seen. At the very least, it suggests that the Palestinians and their Arab neighbors will look to the Convention to guide them on any future transboundary water-related negotiation. To some extent, this could aid them in reaching consensus among themselves, as well as forge a concerted front in their dealings with Israel. On the other hand, it may give Israel an advantage in future negotiations since they have bound themselves to work within the Convention’s framework while Israel has not.

La entrada en vigor de la Convención de Naciones Unidas sobre Cursos de Agua Internacionales (The entry into force of the UN Convention on International Watercourses)

October 13th, 2014

The following post is by Dr. Nicolás Boeglin of the la Facultad de Derecho de la Universidad de Costa Rica. It was prepared in Spanish to broaden the discussion about the 1997 UN Watercourses Convention and encourage the conversation in the Spanish-speaking world. The IWLP welcomes such opportunities and looks forward to engaging with friends and colleagues in multiple languages and regions globally.

El siguiente artículo del Dr. Nicolás Boeglin (Costa Rica) analiza el significado de la entrada en vigor de la Convención de Naciones Unidas de 1997 sobre Cursos de Agua Internacionales desde la perspectiva de América Latina. El Dr. Boeglin es profesor de derecho internacional público en la Facultad de Derecho de la Universidad de Costa Rica y es consultor en esta materia. Puede ser contactado al siguiente correo: nboeglin (a) gmail.com.

El pasado mes de agosto, al cumplirse los 90 días posteriores a la ratificación número 35 (Vietnam, en mayo del 2014), entró oficialmente en vigor la “Convención sobre el derecho de los usos de los cursos de agua internacionales para fines distintos de la navegación“, adoptada en 1997 por la Asamblea General de las Naciones Unidas.

Se trata de un instrumento internacional que, de acuerdo a la práctica del derecho internacional cuando se trata de explorar nuevo ámbitos normativos, recurre a la técnica jurídica de la convención marco (“framework convention” en inglés): esta expresión refiere a textos normativos que sistematizan un conjunto de principios generales que puedanervir de base para establecer una futura cooperación interestatal. Un artículo de doctrina sobre este peculiar tipo de instrumentos indica que: “El carácter de convenio marco de una convención se fundamenta en la decisión de las partes de delegar aspectos relevantes para lograr los objetivos de dicha convención a acuerdos posteriores” (traducción libre del autor, p. 441).

La Convención parte de una definición mucho más integral de “curso de agua internacional“, comparada con la clásicamente usada de “río internacional”. Su artículo 2 estipula que: “A los efectos de la presente Convención: a) Por “curso de agua” se entenderá un sistema de aguas de superficie y subterráneas que, en virtud de su relación física, constituyen un conjunto unitario y normalmente fluyen a una desembocadura común; b) Por “curso de agua internacional” se entenderá un curso de agua algunas de cuyas partes se encuentran en Estados distintos“. De acuerdo a este esfuerzo conceptual, podemos citar, a modo de ejemplo, las iniciativas de España para delimitar “la parte española de las demarcaciones hidrográficas correspondientes a las cuencas hidrográficas compartidas con otros países” (artículo 3 del Real Decreto 125/2007). En contraste, podemos indicar que, en la primera controversia sobre los derechos de navegación en el Río San Juan entre Costa Rica y Nicaragua llevada ante la Corte Internacional de Justicia (CIJ), ninguna de las partes logro imponer su pretensión sobre la calificación jurídica del río. En su decisión del 13/07/2009, la CIJ afirmó que “…no cree tampoco, en consecuencia, deber decidir sobre el punto de saber si el San Juan entra en la categoría de los “ríos internacionales” – tal como lo sostiene Costa Rica –  o si constituye un río nacional que comporta un elemento internacional – según la tesis de Nicaragua” (párrafo 34, traducción libre).

La Convención de 1997 contiene varios principios (Artículos 5 a 10) que deben guiar el actuar de los Estados del curso de agua internacional. La lectura del artículo 7 relativa a la obligación de no causar un daño significativo a otros usuarios posiblemente recuerde un sin fin de controversias acaecidas en los últimos años en diversas partes del mundo. Muchas de ellas, como por ejemplo entre Costa Rica y Nicaragua, o entre Argentina y Uruguay, no encuentran una solución satisfactoria en parte debido al uso de nociones jurídicas limitadas que adolecen de un enfoque integral, el cual es indispensable en cualquier intento de regular un recurso como el agua.

Al revisar el estado de firmas y ratificaciones oficial de la Convención, resulta llamativo que la región que concentra mayores recursos hídricos, y que cuenta con una nutrida práctica convencional como América Latina esté ausente de dicha lista. Una firma de Venezuela (1997) y de Paraguay (1998) son los únicos “logros” después de 17 años de campañas a favor de su ratificación promovidas por organizaciones regionales y entidades no gubernamentales (ONG). Una evaluación crítica de estas últimas se impone, ya que raramente se ha observado un impacto tan limitado en América Latina de una campaña en favor de la ratificación de un instrumento a vocación universal.

En 1994, al aprobarse el anteproyecto de la Convención por parte de la Comisión de Derecho Internacional (CDI) los Estados Miembros de Naciones Unidas conformaron un grupo de trabajo para readecuar el texto y garantizarle una adopción final mediante la resolución A/RES/517229 de la Asamblea General. Fue adoptada en 1997 con 103 votos a favor, 3 en contra (Burundi, China y Turquía) y 27 abstenciones. Por parte de América Latina votaron a favor: Brasil, Chile, Costa Rica, Haití, Honduras, México, Uruguay y Venezuela. Se abstuvieron: Argentina, Bolivia, Colombia, Cuba, Ecuador, Honduras, Guatemala, Panamá, Paraguay y Perú. El detalle  del voto indica que Belice, El Salvador, Nicaragua y República Dominicana aparecen entre los “No shows” que sumaron en total 52 Estados (número extremadamente elevado para la práctica en materia de votaciones en la Asamblea General).

La Parte IV de la Convención (reglas en materia de protección del ambiente) puede ser comparada con las reglas enunciadas por la CIJ en el caso de las Plantas de Celulosa (Argentina c. Uruguay, sentencia de abril del 2010). Resuelto de manera sumamente cuestionable, este caso dio lugar a nuevas tensiones, que analizamos recientemente. De la misma manera, el contenido de la Parte IV deberá ser comparado con las reglas que enuncie la CIJ con ocasión de los dos casos que enfrentan a Costa Rica y Nicaragua: el del dragado del río San Juan, con la demanda interpuesta por Costa Rica en el 2010; y el relacionado con la denominada “trocha fronteriza”, objeto de la demanda interpuesta por Nicaragua en el 2011. Tuvimos de igual forma la posibilidad de analizar en su momento el proyecto minero ubicado en la localidad de Las Crucitas en Costa Rica y sus implicaciones ambientales en un curso de agua internacional desde la perspectiva de la protección de un curso de agua internacional.

El derecho internacional tiende a veces a modernizar de manera más ágil el marco jurídico en comparación con el derecho nacional. Tal es el caso de la Convención de 1997. Por ejemplo, dos Estados Parte a la Convención, España y Portugal, han logrado consolidar, luego de la adopción del Convenio de Albufeira de 1998, una cooperación técnica para el aprovechamiento, gestión y protección de las numerosas cuencas hidrográficas compartidas en una impresionante lista de acuerdos técnicos bilaterales.

Es de esperar que esta entrada en vigor reciente inspire a muchos Estados y los incite a ratificar este instrumento internacional, en particular en América Latina.

The Sustainable Development Goals Process: Making International Water Law More Sustainable and Ecosystem and Public Participation-Friendly

September 21st, 2014

The following post is by Dr. Otto Spijkers, Assistant Professor of Public International Law at Utrecht University. He can be reached at O.Spijkers [at] uu.nl. The essay is based on Dr. Spijkers’ forthcoming article in the Journal of Water Law.

 

One of the more formidable global challenges today is ensuring the sustainable management of freshwater resources. In many recent speeches and reports, including by Mikhail Gorbachev, one reads that urgent action is necessary to prevent a nightmarish world with polluted lakes and rivers, deadly droughts and floods, water scarcity, and the resulting water wars. This post analyzes how the UN’s Sustainable Development Goals (SDG) process might guide the evolution of the existing international water law framework toward a structure that is more friendly toward sustainable development, ecosystems, and public participation.

The Role of Water in the SDG Process

The SDG drafting process takes place through two work streams, which will come together in autumn 2015 when the UN General Assembly (UNGA) adopts the list of SDGs in the form of a resolution. The first is a work stream led by the UN Secretary-General and supported by many reports and consultations. The second is led by the UNGA Open Working Group on the Sustainable Development Goals (OWG). For an overview of the SDG drafting process, see here and here. After the UNGA adopts the SDGs, the SDG process will focus on implementation, dissemination, monitoring compliance, and creating awareness of the SDGs – a bit like the current status of Millennium Development Goals process.

From the beginning of the SDG drafting process, water has been identified as an important issue. The Future We Want, the outcome document of the 2012 Rio+20 Conference, which set the SDG drafting process in motion, placed water at the heart of sustainable development. Since then, participants in the work streams have struggled to find the proper place for “water” in the SDG process. For example, a proposal for a separate water goal was presented by the Secretary-General’s Advisory Board on Water and Sanitation. The Sustainable Development Solutions Network (consortium of scientists) proposed to include in the list of goals a commitment that “water resources are managed sustainably and transparently.” The UN Global Compact (consortium of responsible businesses) suggested calling upon all States to look critically at overconsumption of water resources, especially in the agricultural sector. And the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (group of experts) proposed including a separate SDG on water, but focusing on individual entitlements to water – making it more of a human rights issue than a sustainable transboundary water management issue. Finally, and most importantly, the Outcome Document of the OWG, around which all subsequent discussions on the SDGs will be organized, included an SDG on the sustainable management of water.

All of these efforts do not mean the mission has been accomplished. At the 24th World Water Week in Stockholm, the Executive Director of the Stockholm International Water Institute rightly noted that nothing is certain until the UNGA adopts its resolution at the end of 2015.

All in all, water was – and still is – on the minds of many people involved in the SDG drafting process, but there exist various and widely diverging views on how exactly the reference to water should be phrased: As a human rights issue? As an economic issue? As an environmental concern? Despite these different opinions, there are some views emerging from the SDG process on which there is general agreement.

Three Emerging Views from the SDG Process

The first view suggests that States should be encouraged to interpret and apply international water law as a legal framework for the sustainable development of water resources. Sustainable development requires a development policy that meets the socio-economic needs of the present generations without compromising the ability of future generations to meet their own needs. The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention) notes in its Preamble that “water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.” The UN Convention on the Law of the Non-Navigational Uses of International Watercourse (Watercourses Convention) refers to the principle of sustainable development in the Preamble and in Article 24. Moreover, Article 5 links the “sustainable utilization” of shared watercourses to water law’s bedrock principle of reasonable and equitable use. Hence, there are plenty of references to sustainability in water law’s most important legal documents. But this says little about the precise balance between the rights of present and future generations to benefit from water resources. Some States still believe that international water law is meant to regulate the economic use of shared watercourses, but not to protect the environment of these watercourses. The SDG process, with its focus on sustainability, provides an ideal opportunity to convince all States to approach the water law framework always wearing spectacles with green glass.

A second view would encourage States to stimulate the further development of the ecosystems approach to international water law. The year 2015 might very well be the year of the ecosystems approach. The ­Post 2015 Water Th­ematic Consultation already made many references to the protection of freshwater “ecosystems.” This emphasis on ecosystems is supported by various national consultations. An explicit reference to an obligation to “restore and maintain ecosystems to provide water-related services” in the targets of the SDG on water was proposed by UN-Water. In the OWG’s Outcome Document, the term ecosystem is applied in a broad sense, and with a lot of confidence. Since there is still much uncertainty about the meaning of the term “ecosystem” in international law, the SDG process could seize the moment, and encourage the further development of the ecosystems approach through international water law. We do have a legal basis: Article 20 of the Watercourses Convention and Article 3(1)(i) of the UNECE Convention both include an explicit reference to the ecosystems approach. And if a whole decolonization wave in the 1960s and 1970s could be based on one meagre reference to “self-determination” in the United Nations Charter (Article 1(2)), it is conceivable that two articles could serve as the basis for a legal regime on the protection of freshwater ecosystems. Article 20 of the Watercourses Convention, in particular, may then become a treaty-within-a-treaty, setting up by itself a legal regime on the protection of freshwater ecosystems.

The third view suggests using the legal framework of international water law to facilitate public participation at all levels of water governance. Both the Women’s Major Groups (see here and here) and Business and Industry called for a more “participatory” water governance system. UN-Water suggested that any system of water management should include “participatory decision-making.” In the Outcome Document of the OWG, the importance of public participation, especially by local communities, in water governance is acknowledged. All of this might encourage States to exploit with more confidence the potential of international water law in facilitating public participation in the sustainable management of waters. No general right of the public to participate can be found in the Watercourses Convention or the UNECE Convention. But the Conventions do not oppose it.