Professor Patricia Wouters: Considering China’s approach to the UN Watercourses Convention – Time to revisit?

July 28th, 2014

The following post by Professor Patricia Wouters is the sixth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Professor Wouters directs the China International Water Law Programme at Xiamen Law School, China. She can be reached at pkwoutersxiamen [@] hotmail.com.

One of China’s riparian neighbours, Vietnam, was the 35th country to ratify the 1997 UN Watercourses Convention (UNWC), catalysing its entry into force on 17 August 2014. What does this mean for China and this region? While China voted against the UN Resolution adopting the UNWC in 1997, this does not tell the whole story. Instead, China’s transboundary water resources management must be considered within a broader context, and as part of a continuum of China’s evolving approach to international law.

Setting the context

With 5,000 years of history, China has considerable experience in water resources development. Yet, China’s diminishing quantities and qualities of freshwater pose serious challenges to the nation’s burgeoning economic growth (see here). In recent years, this has led the government to include “water” in its “Number One priority” annual policy documents, instruments that drive Chinese national policy actions. Premier Li Keqiang’s “war on pollution” has also resulted in a range of measures targeting water pollution, especially in urban areas and development hubs (see here). These domestic initiatives will have a critical impact on China’s transboundary water practice.

China's Transboundary Waters (from: Wouters & Chen, China's 'soft-path' to transboundary water cooperation examined in the light of two UN Global Water Conventions: exploring the 'Chinese way', Journal of Water Law, Vol. 22(6), pp. 229-247 (2011))

China’s Transboundary Waters (from: Wouters & Chen, China’s ‘soft-path’ to transboundary water cooperation examined in the light of two UN Global Water Conventions: exploring the ‘Chinese way’, Journal of Water Law, Vol. 22(6), pp. 229-247 (2011))

Situated as the upper riparian in some 40 major transboundary watercourses with 14 riparian nations, China has adopted an approach to transboundary water resources management consistent with its “Five Principles of Peaceful Co-existence”: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence. Each of these Principles aligns directly with core values of the UN Charter. Recently, President Xi Jinping commemorated the 60th anniversary of the Five Principles and reaffirmed China’s commitment to furthering this approach with a view to building “a new type of international relations and a better world of win-win cooperation” (see here).

China already implements this foreign policy strategy, with proactive outreach across Asia, Europe, Africa, and Latin America, concluding an impressive array of mostly bilateral agreements. As just one example, during his Latin American visit (described as opening “a new chapter in China-Latin American win-win cooperation”), in his address (here and here) to Brazil’s National Congress, President Xi spoke of the need for “international fairness and justice”, and urged adherence to principles contained in the UN Charter. While he reiterated the integral importance of national sovereignty and territorial integrity, he added that there must be due regard for the reasonable concern of others. Referring to China as a “peace-loving nation”, President Xi asserted that China opposed all forms of hegemony, adding “China cannot develop without the world and the world cannot develop without China”.

China’s position regarding the UNWC

China’s refusal to support the UN Resolution adopting the UNWC was aligned to its approach to international law. It was in this context that the Chinese delegate explained China’s dissatisfaction with the text:

First, it failed to reflect general agreement among all countries, and a number of States had major reservations regarding its main provisions. Secondly, the text did not reflect the principle of the territorial sovereignty of a watercourse State. Such a State had indisputable sovereignty over a watercourse which flowed through its territory. There was also an imbalance between the rights and obligations of the upstream and downstream States. China could not support provisions on the mandatory settlement of disputes which went against the principles set out in the United Nations Charter. China favoured the settlement of all disputes through peaceful negotiations. Accordingly, China voted against the draft resolution to which the draft convention was attached (see UNGA Press Release GA/9248, 21 May 1997).

Notably, however, during the deliberations leading to the Convention, China expressed strong support for many of the norms eventually included in the UNWC, especially the principle of equitable and reasonable use (see here).  Moreover, a recent study examining China’s transboundary water treaty practice suggests that, in general, China’s actions respect the approach of the UNWC. The research, however, also revealed that, while China embraces the duty to cooperate (as a general guiding principle) and supports the rule of equitable and reasonable use in its water-related treaties, these norms are often expressed in broad terms. Also, the mechanisms for transboundary cooperation provided for in China’s treaties – rules of procedure, institutional mechanisms and dispute settlement – are rather imprecise and focus primarily on technical issues. In addition, while the treaty practice lacks any compulsory or third-party dispute settlement provisions, such an approach is consistent with China’s view that differences should be managed through consultation, dialogue and negotiations.

China’s transboundary water treaty practice is limited not only with respect to its normative content and operational procedures, but also with respect to its geographical reach. None of China’s southern transboundary waters are covered by treaty regimes, including the considerable resources originating in the Himalayan water towers. Most of China’s transboundary water cooperation is with its northern neighbours, especially Kazakhstan and Russia (see here).

Mekong River BasinContemporary transboundary water issues involving China – The case of the Mekong

A recent article in the Financial Times highlights China’s upstream dilemma – how can China be the “good neighbour” on the Mekong? China is only a dialogue partner under the Mekong Agreement, with observer status at Mekong River Commission (MRC) meetings. However, under an agreement with the MRC, China provides the Commission hydrological data on its portion of the river. Nevertheless, downstream riparians recently alleged that China’s dams were responsible for downstream flooding (December 2013) and scarcity (February 2014).

Without clear rules of procedure (such as those set forth under the UNWC and the Mekong Agreement), China’s duty to cooperate lacks normative traction.

China has a unique opportunity in the field of transboundary waters for consolidating its emerging role as a “good neighbour” that seeks “win-win” solutions. Improved procedural rules and dispute avoidance mechanisms, developed to meet the regional context, could facilitate improved transboundary cooperation. With its considerable technical expertise, China could devise its own “people-to-people” approach for enhanced transboundary cooperation.

China’s future approach to transboundary waters – the need for consolidation, including revisiting the UNWC as a framework instrument

Things are changing. China is now well placed to develop its approach to transboundary water cooperation in ways that match its global foreign policy strategy. The UNWC, as a multilateral framework instrument, offers a range of rules and processes that China could adapt to meet its diverse transboundary issues in ways that demonstrate China’s role as the “good neighbour”. By incorporating some of the provisions and processes included in the UNWC in its existing and future treaty and state practice, China could move forward in this field. China appears to be heading in this direction as demonstrated by its recent 2013 Declaration with Kazakhstan, which builds on past bilateral treaty practice and enlarges the Sino-Kazak joint commission’s remit to include work on water allocation.

Borrowing from the UNWC, China could also find legal approaches that contribute to its “war on pollution”, in the transboundary context, by introducing more detailed substantive and procedural rules aimed at water pollution. In this regard, China might also take inspiration from the 1992 UNECE Transboundary Rivers and Lakes Convention. China’s support for the UN (generally), coupled with its currently evolving approach to international law, provides compelling reasons for China to revisit the guidelines provided for in these two UN global water conventions.

China’s emerging role in international development can also serve to enhance its approach to transboundary water cooperation. For example, China’s new “peace-through-development” agenda with India (see here)  could help to build upon the series of recent transboundary water agreements between the two countries (see here).

China’s commitment to environmental protection (evidenced in China’s participation in a broad range of multilateral environmental agreements, such as the RAMSAR Wetlands Convention, Convention on Biological Diversity, Climate Change Convention, and Convention on Desertification, also provides opportunities for consolidating its approach to transboundary water cooperation.

Realising the “Chinese dream” is an ambitious goal. The peaceful management of China’s considerable transboundary water resources, in ways that are mutually beneficial to China and its riparian neighbours, must be part of this major undertaking.

 

Dr. Götz Reichert: Entry into Force of the UN Watercourses Convention – Should Europe Care?

July 21st, 2014

The following post by Dr. Götz Reichert is the fifth in the series of essays related to the entering into force of the by 1997 UN Watercourses Convention (see links to all of the essays here). Dr. 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.

The upcoming entry into force of the 1997 UN Watercourses Convention (UNWC) can be attributed, in large part, to the sixteen European ratifications out of the thirty-five that have been recorded thus far. In fact, Europe forms the largest regional group of state parties to the UNWC. This somewhat disproportionate representation gives rise to the question: why did so many European countries join the UNWC? Moreover, given the complex, multi-level water management, allocation, and protection mechanisms already in place, what added value does an additional international framework convention have for Europe? To answer these questions, we must first consider the existing legal regime in Europe that is applied to freshwater resources.

Specific International Agreements

Europe’s hydrological environment is very diverse, ranging from water-rich areas, often under pressure from industrial pollution and frequent floods, to water-scarce regions with intensive agriculture. Moreover, Europe contains approximately 75 transboundary river basins and over one hundred international agreements pertaining to internationally shared rivers, lakes and aquifers. Following decades of mixed experiences with international cooperation, since the 1990s, a “collective learning curve” has resulted in the emergence of a promising legal regime. Examples include the cooperative efforts between the riparians of the rivers Rhine and Danube.

Map of EU River Basin Districts indicating transboundary co-operation (from: http://ec.europa.eu/environment/water/water-framework/facts_figures/pdf/Transboundary-cooperation-%202012.pdf)

Map of EU River Basin Districts indicating transboundary co-operation (from: http://ec.europa.eu/environment/water/water-framework/facts_figures/pdf/Transboundary-cooperation-%202012.pdf)

Once infamous as “Europe’s most romantic sewer”, the Rhine is now recovering from years of excessive industrial pollution. Ill-designed agreements from the 1970s, fierce disputes between upstream and downstream riparians, and the disastrous Sandoz chemical spill in 1986 finally prompted the International Commission for the Protection of Rhine to adopt a more holistic, ecosystem-oriented approach, codified in the 1999 Convention on the Protection of the Rhine. Furthermore, the fall of the Iron Curtain in 1989 opened new opportunities for international cooperation, most importantly for the Danube. The 1994 Convention on Cooperation for the Protection and Sustainable Use of the Danube River forms the legal basis for cooperation between the fourteen riparian countries and the European Union within the International Commission for the Protection of the Danube River. Today, the regimes pertaining to the Rhine and Danube are exemplary for their detailed substantive regulations, clear procedural obligations, and strong institutional framework, each consisting of a conference of the parties, expert groups working on technical questions, and permanent secretariats.

1992 UNECE Convention

Substantive, procedural and institutional elements are also established by the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (UNECE Convention), which functions as an overarching, general agreement. Originally designed as a regional framework convention for European and Central Asian countries under the auspices of the United Nations Economic Commission for Europe (UNECE), the UNECE Convention was opened to all United Nations members in February 2013. Presently, the Water Convention has forty parties.

The UNECE Convention’s institutional provisions, which establish a regular meeting of the parties and a permanent secretariat and various expert working groups, enable the regime to play an active role in the development of international water law in Europe and beyond. Together with its 1999 Protocol on Water and Health, the 2003 Protocol on Civil Liability (not yet in force) and a number of soft law instruments like the 2014 Model Provisions on Transboundary Groundwaters, the UNECE Convention provides guidance for the continuous improvement of international cooperation on the protection and use of transboundary water resources. This is reflected in a number of subsequent international agreements, such as the 1994 Danube Convention, 2002 Meuse Agreement, the 1998 Portuguese-Spanish Basin Agreement (Spanish), and the 1999 Rhine Convention. All of these instruments make a serious effort to adapt the basic approach of the UNECE Convention to their specific needs. The agreements share the catalogue of aims and principles laid down by the UNECE Convention (e.g., sustainable water management, the precautionary principle, the polluter-pays principle). They also establish river commissions with significant tasks and competences. Most importantly, all agreements take the “river basin” as the managerial unit for the protection and management of freshwater resources, including both surface waters and groundwater.

EU Water Framework Directive

The European Union is also involved in international cooperation on transboundary freshwater resources in Europe, inter alia, as a party to the UNECE Convention and conventions on the Danube, the Elbe, the Oder and the Rhine. Since 2000, the EU Water Framework Directive 2000/60/EC (EUWFD) has played a pivotal role both in implementing the EU’s obligations under international conventions as well as in further developing international water law. Its objective is to achieve good qualitative and quantitative status of domestic and transboundary freshwater resources in the EU by 2015. To this end, the EUWFD sets up a complex and challenging regulatory program including phasing-out of hazardous substances and controls over the abstraction of fresh surface water and groundwater.

The EUWFD follows the drainage basin approach and regards the hydrological “river basin” as a starting point. The corresponding management unit is the “river basin district” (RBD), which refers to “the area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters.” If transboundary effects occur within a river basin, the EU member states concerned must establish an “international RBD” and coordinate the implementation of the EUWFD through a single River Basin Management Plan (RBMP). A river commission established under international law may be entrusted with implementation of the EUWFD. Where a RBD extends beyond the territory of the EU, the EU member states concerned must seek appropriate coordination with the non-EU riparians in order to achieve the EUWFD objectives. This is quite a challenge, given that 60% of the EU territory is covered by international river basins, and 55 of the current 110 RBDs are considered international. Nevertheless, international RBMPs have been adopted in several transboundary basins like the Danube, Rhine and Elbe within the framework of the respective international river commissions. Therefore, the EUWFD constitutes a legal interface between EU water law and international water law, thereby forming the centerpiece of an increasingly elaborate multi-level governance regime for the protection and management of transboundary freshwater resources in Europe.

Europe and the Watercourses Convention

In the light of this elaborate multi-level regime, why should Europe care about the entry into force of the UNWC? With the “globalization” of the UNECE Convention, the question becomes even more pressing. While both legal instruments are universal framework convention open to all states, they fulfill different but complementary functions: The UNWC primarily codifies the status of customary international water law. The long-standing controversy on the relationship between the principle of equitable utilization and the “no harm rule” clearly shows that the UNWC, at its core, is still focused on basic conflicts over transboundary freshwater resources and provides a legal framework for their balanced resolution. In contrast, the UNECE Convention, with its detailed provisions for substantive, procedural and institutional rules, goes well beyond the “least common denominator” of customary law and contributes to the further development of international water law. For countries willing to pursue integrated water management based on the drainage basin approach in close cooperation with their fellow riparians, the UNECE Convention serves as a supplement rather than an alternative to the UNWC.

Over time, European countries have learned – sometimes the hard way – that international cooperation on the protection and management of shared freshwater resources is beneficial for all riparians. This is why Europe now forms the largest block of state parties to the UNWC. Decades of intense work in international fora such as river commission and expert groups have gradually created mutual understanding and trust. The EUWFD has added challenging requirements to the substantive content of this work. On the one hand, European countries should share their experiences; on the other, they can benefit by the experiences of other regions. Therefore, Europe should continue to be involved in the global discussion and further development of international water law. Becoming a party to the UNWC would be a clear commitment in this respect. In a world where water-induced controversies are still the cause of many conflicts, a “constitution of the Earth’s freshwater resources” recognized by the community of states is needed. Therefore, European countries should care and join the UNWC.

 

Dr. Kishor Uprety: A South Asian Perspective on the UN Watercourses Convention

July 14th, 2014

The following post, by Dr. Kishor Uprety, is the fourth in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Uprety is a lawyer with The World Bank. He can be reached at aastha7 [at] cox.net.

Hydro-Geopolitics

In South Asia, transboundary water sharing agreements and arrangements tethering neighboring countries are subject to much criticism, as covering too much or too little. Dozens of hydro dams, whether on the Indus, the Ganges, or the Brahmaputra Basin rivers, under preparation, planned or projected, have been considered threats by most riparians, upper and lower alike. Industrial expansion, population growth, global warming, climate change, and underground water pumping exceeding natural recharge rates enhances criticisms, especially when the water flow in international rivers declines below the usual and expected limit. With regard to dams, while upstream users cite vital developmental imperatives as grounds for such construction, downstream riparians often oppose them citing their own socio-economic needs and existing uses that are dependent on existing flows. The above typical crises caused by competing interests call for fine-tuning of transboundary regimes and importing of international norms in the continent.

Map of South Asia

South Asia is a region that has had to deal with some of the most difficult disputes over transboundary rivers. Due to intra-regional power imbalances, mutual hostility, suspicion, and the absence of an endorsed universal legal regime, sharing transboundary waters and simultaneously sustaining riparian ecosystem, has become increasingly complex. Yet none of the South Asian countries has joined the 1997 UN Watercourses Convention. India and Pakistan abstained from the vote on the Convention at the UN General Assembly, while Afghanistan, Bhutan and Sri Lanka were absent. Bangladesh, Maldives and Nepal voted in favor of the Convention, but none has ratified or acceded to the instrument. As important, India had officially noted its objections during its adoption (see below), and as such, it is not surprising that it has not become a party.

Dissatisfaction with the Convention

The dearth of literature does not permit the formulation of a formal conclusion as to why the South Asian countries are uncomfortable with the Convention. Nevertheless, informal surveys with stakeholders suggest that it is due, essentially, to a perceived inability of the Convention to tackle all of the possible region-specific scenarios and the differing needs and demands among the countries. A number of reasons influenced by historical, political and cultural elements come into play.

First, while some countries in South Asia may seem genuinely to favor a multi-country   approach, collective multilateral attention to the problems of transboundary waters has been rare. Historically, the region has lacked a collective strategy and bilateralism remains the focus.

Indeed, water has differing impacts on regional relations. Between India and Pakistan, as well as Pakistan and Afghanistan, water disputes exacerbate already strained bilateral relations. For Bangladesh and Nepal, the Indian approach to water is a primary source of distrust. Conspiracy theories and blame games prevail throughout South Asia. Afghanistan blames Pakistan (and Iran) for its water problems, while Nepal, Bangladesh and Pakistan blame India for theirs. Within India and Pakistan, water shortages are blamed for the actions taken by upstream provinces or federal states. This blame culture reflects the absence of trust that plagues intraregional relationships, and makes multi country river-sharing arrangements particularly difficult to materialize.

Second, these countries consider the principles of water use emanating from the Convention, though intuitively appealing, as difficult to operationalize and implement in a particularly heated geopolitical environment. Also, the many principles contained in the Convention and designed to ensure cooperation in the abstract, are considered vague if not contradictory in reality.  As such, they are deemed unsuitable for resolving South Asia-specific issues where the prevailing language is centered on the idea of water as a security priority.

Indeed, there are contrasting views within the region amongst stakeholders and opinion builders. There are those who rely on a realist analysis and see water scarcity and riparian rights to water allocations as part and parcel of state security. Countries where this analysis dominates appear reluctant to engage in multilateral agreements over water because these agreements inherently require the secession of some portion of their national sovereignty. There are also those historical materialists who endorse multilateral water sharing cooperation, but who also believe that such cooperation can only be based on an “unfair” allocation of water skewed towards more developed states, bigger states, or former colonial masters. Countries where this analysis dominates remain confused as to the content as well as the methodology for negotiating agreements.

Third, the treaty-making behavior in the South Asia region is unique. Due to their prevailing mutual distrust, their inability to delink hydropower from water resources, and their reservation against generalizing policy to avoid establishing precedent, the strategic approach of most of the countries is merely to theoretically engage in water-related initiatives, but practically advance only those serving their own specific interests. An interesting twist can further be noted in the case of India, which, being in a unique geographic position – upper riparian to Pakistan and Bangladesh, and lower riparian to Nepal and China – employs a differentiated strategy and, thus, considers a uniform formula for the management of water relations to be impractical.

Individual countries in the region also have their own stance on the provisions of the Convention. For instance, Pakistan considers that “groundwater” should not be part of the definition of a “watercourse” (art. 2) because it is difficult to determine the geographic range of aquifers that are hydraulically linked to rivers, and inequitable to include aquifers that are located entirely within the territory of one country. India takes the stance that art. 3 of the Convention, which ensures nations’ right to enter into watercourse agreements, contradicts its domestic law whereby water is constitutionally a state rather than a Union matter. It also claims that the term “sustainable,” as used in articles 3 and 5 in the context of “sustainable utilization,” is not properly defined. In addition, all of the countries in the region seem to employ different interpretations of the word “significant” in the context of “no significant harm” (art. 7); some of the countries oppose the provision on equality of access to transboundary remedies (art. 32), which they interpret as presupposing regional integration; and Pakistan is displeased that the dispute settlement provision (art. 33) is not binding, while India is dissatisfied that the provision contains elements for mandatory third party procedures.

The Way Forward

Water insecurity is pervasive in the South Asia region, visible in conflicts, disputes and tensions that have erupted within and across countries. Thus, a new approach, centered on the idea of water as a common good and a human right that is universally held and acknowledged, may need furthering. The Ganges basin countries are also adopting strategies for river basin management at the sub-national level. These developments, if complemented with effective persuasion of government and non-government stakeholders, may pave the way for these countries to consider a more uniform and facilitative framework on transboundary water resource management, including the UN Watercourse Convention. Furthermore, the conclusions emanating from the 2013 Permanent Court of Arbitration Award on the Kishenganga Dispute, and the 2007 Decision of the Neutral Expert on the Baglihar Case (both in the context of the Indus River), also could influence the understanding of these countries about the value and complementarity of treaty provisions in relation to customary international law, and encourage them to revisit their long-held positions!

 

Dr. Dinara Ziganshina: UN Watercourses Convention in Central Asia – The Current State and Future Outlook

July 1st, 2014

The following post, by Dr. Dinara Ziganshina, is the third in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Ziganshina is based in Tashkent, Uzbekistan, where she serves as Deputy Director of the Scientific Information Center of Interstate Commission for Water Coordination in Central Asia. She can be reached at dinara.ziganshina [at] gmail.com.

The role and relevance of the UN Convention in Central Asia

Managing the impacts of climate change and demographic growth, as well as reconciling different demands on water for drinking needs and sanitation, ecosystems, agriculture, food production, industry and energy are major water security challenges in the Aral Sea basin shared by Afghanistan, Kazakhstan, the Kyrgyz Republic, Tajikistan, Turkmenistan, and Uzbekistan. These challenges require a holistic, mutually beneficial and cooperative solution that is agreeable to all parties involved. A 2011 regional assessment on the role and relevance of the 1997 UN Watercourses Convention to the Aral Sea basin countries found that this global instrument could improve the legal framework for transboundary water cooperation in the basin, and assist countries in building and maintaining effective and peaceful management systems for their shared water resources.

The Aral Sea Basin

The Aral Sea Basin

Although there are plenty of legal instruments at the bilateral, sub-basin, and basin levels governing the use and protection of shared watercourses in Central Asia, these agreements are in dire need of improvement as they fail to incorporate key principles of international water law and best management practices. In this context, the UN Convention could play a supplementary role to the existing regimes, and serve as a resource to help interpret the region’s bilateral treaties and arrangements. While the norms of the UN Convention are mostly couched in broad terms, to be applied to a range of different river basins, some of its provisions are still more precise and specific than the norms of sub-regional agreements in the Aral Sea basin. The rule of equitable and reasonable use and the notification procedure on planned measures, which the sub-regional agreements seem to subsume under “joint management” and “joint consideration” provisions, are the most notable examples.

In addition, the UN Convention could serve as a common platform for Central Asian countries to negotiate future accords since it does not preclude or dismiss the need for local and regional watercourse agreements. Existing legal arrangements in the basin were not designed to accommodate changing circumstances, nor can they be easily amended. As a result, many of these treaties have become stagnant and have lost their value.

Most prominently, by joining the UN Convention, Central Asian countries could benefit not only from its individual provisions, but also the entire text of the Convention, which was carefully crafted to provide a system of interacting and mutually supporting rules and procedures. Of particular relevance is the Convention’s contribution to the peaceful management of controversies as manifested in its sound procedural system and range of dispute settlement mechanisms, including an impartial fact-finding commission.

Perspectives for the UN Convention in the region

Despite the UN Convention’s value and relevance, Uzbekistan remains the only country from the region to have acceded to it. During the Convention’s adoption by the UN General Assembly in 1997, none of the Central Asian nations voted against it. While Kazakhstan voted in favor and Uzbekistan abstained from the vote, the Kyrgyz Republic, Tajikistan and Turkmenistan were absent from the voting process. The example of Uzbekistan, which abstained from voting but eventually acceded to the Convention, demonstrates the possibility that countries can change their position. One can speculate on the reasons for Uzbekistan’s change, which may be grounded in political considerations, increased environmental and social concerns related to transboundary waters, or improved legal understanding of the benefits from the Convention for the peaceful use of the resource. It is also possible that the country intended to express its position to the international community by cementing its adherence to international water law. In this context, what are the chances that other countries in the region will join the Convention?

Kazakhstan, which voted in favor of the Convention, is the most likely candidate. This would be a logical, and not very demanding, step for the country since it has already committed to all water-related UNECE Conventions, which impose even stricter obligations. The Espoo Convention, for example, sets forth detailed provisions on notification procedures for planned measures, while the UNECE Water Convention stipulates stringent requirements for preventing and controlling transboundary harm, environmental protection, and establishing joint bodies.

Turkmenistan is another downstream country that has considered joining the UN Convention, after recently acceding to the UNECE Water Convention. An official representative of that country stated at a 2011 international water conference in Tashkent that preparatory procedures to join the Convention were under way (see 2011 regional assessment).

The chance in the short term that the two upstream countries of Kyrgyzstan and Tajikistan might join the UN Convention, however, is not very high. In the early 2000s, the Ministry of Foreign Affairs of the Kyrgyz Republic found it inadvisable for the country to accede to the Convention (see 2011 regional assessment), although Kyrgyzstan acceded to the Espoo Convention in 2001. Since then, there has been no evidence of a changed attitude towards the Convention. The head of the Kyrgyz delegation to the 2011 Tashkent international water conference largely supported this proposition and added that his country may consider joining the Protocol on Water and Health under UNECE Water Convention as a first step. At the same time, he added that Kyrgyzstan would be more willing to sign on to the UN Convention than UNECE Water Convention as, in his opinion, it was more relevant to the issues facing the Central Asian region (see 2011 regional assessment).

Similarly, Tajikistan is reluctant to accede to the Convention despite the fact that the President of Tajikistan highlights the key role of international agreements in addressing water-related problems in the region. For instance, in his address at the 1st Asian Pacific Water Summit, Emomali Rahmon stated, “Elaboration and adoption of International Water Convention could be one of the important steps in a unification of efforts which would determine universal principles of water policy taking into account ensuring the interests of all consumers.” Nevertheless, Tajikistan’s existing legal commitments could set the pace for it to join the Convention. For example, under the 1998 Commonwealth of Independent States Agreement on Transboundary Waters, Tajikistan agreed to take into account the provisions of the 1966 Helsinki Rules, on which the UN Convention is largely based, and of the UNECE Water Convention. In addition, on 17 February 2004, Tajikistan promulgated Decree of 1287 on Accession to the Espoo Convention, however, the Depositary of the Convention has not yet received the ratification documents. If Tajikistan completes the ratification process for the Espoo Convention, it will be a party to another instrument largely aligned with the procedural norms of international water law.

The way forward

The unwillingness of the two upstream countries to join the UN Convention does not appear to be based on their rejection of its normative prescriptions, but rather is due to a misunderstanding of its provisions. Thus, the UN Convention has been criticized by some nations as giving preferential treatment to the interests of wealthy and powerful states, ignoring the situation in water-stressed countries, leaving individual states too much discretion to interpret its provisions for their own benefit, and being vague and imprecise in defining the rights and obligations imposed on riparian countries.

A careful analysis of the UN Convention and the broader international legal environment in which it sits dispels some of these apprehensions. The Convention imposes identical obligations on all watercourse states, irrespective of their location on an international watercourse. Moreover, concerns related to vagueness and lack of precision must be tempered by the understanding of the framework and residual character of the Convention. Lastly, the Convention must be viewed as a system of substantive and procedural obligations that establish a regime resulting from all of its provisions considered collectively.

The UN Convention has much to offer the countries of the Aral Sea basin in addressing their transboundary water problems. But to secure its benefits, the countries in the region must take an informed decision to join the Convention and implement its provisions. This means that remaining misperceptions about the Convention must be clarified and care must be taken not to create additional confusion. This includes raising false claims that the Convention is a panacea for building effective transboundary cooperation in the basin. While it would be much easier if this were true, it is not. In this respect, supporters of the Convention can be instrumental in raising awareness and understanding about the instrument. We have already witnessed the tremendous influence of World Wildlife Fund, Green Cross International, and other partners in the Convention coming into force. This campaign should be continued with a view of expanding the membership in the Convention, as well as highlighting the benefits of its good faith implementation, as a means for achieving a water-secure world for all.

Dr. Salman M.A. Salman: Entry into Force of the UN Watercourses Convention – Where are the Nile Basin Countries?

June 2nd, 2014

The following post, by Dr. Salman M. A. Salman, is the second in the series of essays related to the entering into force of the 1997 UN Watercourses Convention (see links to all of the essays here). Dr. Salman is an academic researcher and consultant on water law and policy. Until 2009, Dr. Salman served as Lead Council and Water Law Adviser for the World Bank. He can be reached at SalmanMASalman [at] gmail.com. This post is being published simultaneously in this blog as well as in Dr. Salman personal web site (www.salmanmasalman.org).

The year 1997 was a defining point in history for both the Nile Basin countries and the UN Watercourses Convention. At the beginning of that year, informal contacts facilitated by The World Bank and United Nations Development Programme (UNDP) resulted in a preliminary agreement to establish, for the first time, a forum inclusive of all the Nile riparian countries. In May of the same year, the UN General Assembly (UNGA) adopted the UN Watercourses Convention by a large majority, paving the way for its entry into force and effect. Unfortunately, that point in history also turned out to be a departure point as none of the Nile riparian countries became a party to the UN Convention. This essay addresses the reasons behind this sad fact.

Pursuant to the 1997 contacts and the subsequent facilitation by the World Bank and UNDP, the Nile Basin Initiative (NBI) was formally established by the Nile Basin states at the meeting of their Ministers of Water Resources in Dar-es-Salaam, Tanzania, February 22, 1999. The Agreed Minutes of the meeting, signed by the Ministers in attendance, included the overall framework for the NBI and its institutional structure and functions. NBI is guided by a shared vision “to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources” (see here). The main objective of the NBI was to negotiate and conclude a cooperative framework agreement that would incorporate the principles, structures and institutions of the NBI, and that would be inclusive of all Nile riparians.

The Nile Basin

The Nile Basin

Work on the Nile Basin Cooperative Framework Agreement (CFA) commenced immediately after the NBI was formally established in 1999, and continued for more than ten years. However, the process ran into major difficulties as a result of the resurfacing and hardening of the respective positions of the riparians. Egypt and Sudan, the two lower riparians, insisted on the validity and binding obligations on the upper riaprians of the treaties concluded in 1902 and 1929, which the upstream riparians have persistently and completely rejected. Those two treaties purportedly give Egypt and Sudan veto power over any project in any of the upper riparian states. Moreover Egypt and Sudan insisted on their claims to their acquired rights and uses of the Nile waters under the 1959 Nile Waters Agreement, which the upper riaprians also squarely rejected since it left no Nile waters for them. Those differences persisted and could not be resolved at the negotiations level. They were eventually taken to three ministerial meetings in Kinshasa, Alexandria, and Sharm El-Sheikh in 2009 and 2010. However, these meetings failed to resolve these issues and no agreement on the final draft CFA was reached.

On May 14, 2010, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA. They were joined five days later by Kenya, and by then Burundi on February 28, 2011. Although the Democratic Republic of Congo and the newly independent nation of South Sudan both indicated their support for the CFA, neither has signed or become a party to the instrument. Ethiopia eventually ratified the CFA in June 2013, but no other signatory state followed. The CFA needs six ratifications to enter into force and effect.

Egypt and Sudan vehemently oppose the signed version of the CFA because it does not incorporate their concerns under the 1902, 1929 and 1959 treaties. As a result, the division of the Nile basin countries into lower and upper riparians have sharpened and escalated.

Similar to the UN Watercourses Convention, the CFA lays down basic principles for the protection, use, conservation and development of the Nile Basin. These include cooperation among the states of the Nile River Basin on the basis of sovereign equality, territorial integrity, mutual benefit and good faith, sustainable development, equitable and reasonable utilization, and prevention of significant harm, as well as procedures for settlement of disputes. Cooperation is clearly and unequivocally the defining and common theme of the two instruments.

Yet, despite the similarities between the two instruments, the position of the Nile-riparian countries toward the UN Convention varies significantly. When the Convention came before the UNGA, Kenya and Sudan voted in favor, while Burundi joined Turkey and China in their negative vote. Egypt, Ethiopia, Tanzania and Rwanda abstained, each for different reasons, while Uganda, the Democratic Republic of Congo and Eritrea did not participate in the vote. As of today, none of the Nile riparian countries has signed or ratified the UN Watercourses Convention; not even Kenya or Sudan, which voted for the Convention. In contrast, Ethiopia, Kenya, Uganda, Tanzania, Burundi and Rwanda signed the CFA, and Ethiopia ratified it.

This may seem baffling. Why would the six countries that signed the CFA refuse to join the UN Watercourses Convention, given that the CFA is derived from and largely based on the Convention? The answer rests with the controversies surrounding the Nile treaties referred to above. The six upper riparians that signed the CFA do not want to be parties to a Convention that includes clear and detailed obligations for the notification of other riparians of planned measures and projects in their territories that may affect the Nile. They are concerned that such notification obligations would be construed by Egypt and Sudan as recognition of the 1902 and 1929 treaties that give Egypt and Sudan veto power over upstream activities. Indeed, this is the main reason that the CFA does not include provisions on notification, only on exchange of data and information.

On the other hand, Egypt and Sudan cling strongly to their historical rights and uses and both believe that the UN Watercourses Convention tilts towards equitable and reasonable utilization at the expense of the obligation not to cause significant harm. As lower riparians with claimed historical rights over the Nile waters, their cardinal principle is the obligation not to cause significant harm. They read the decision of the International Court of Justice in the Gabcikovo-Nagymaros Project case (Hungary/Slovakia) (ICJ 1997) as heightening and underscoring their concern that the Convention may have subordinated this obligation to the principle of equitable utilization. For this reason, they would not accede to the Convention.

Thus, for the eleven Nile riparian countries, accession to the UN Watercourses Convention is deeply intertwined with the controversies regarding the so-called “colonial Nile treaties.” In particular, Egypt and Sudan’s position reflects a major failure by both countries to view cooperation, equitable and reasonable utilization, and the obligation not to cause significant harm, as all closely related and interwoven, and not as separable elements of international water law.  Thus, any attempt to resolve the pending issues under the CFA, the Grand Ethiopian Renaissance Dam (GERD), or accession to the UN Watercourses Convention will prove futile until Egypt and Sudan recognize that these treaties are outdated and non-functional because they have simply been totally ignored by the other riparians, both in theory and in practice.

Indeed, it is time for both Egypt and Sudan to remove these “colonial treaties” out of the flow of Nile negotiations and to join both the CFA and the Convention. Such a bold, albeit realistic, step would generate a new and genuine spirit for cooperation among the Nile states, and reignite the world community’s goodwill for the region. It will also pave the way for an equitable sharing of the benefits of the common Nile waters by the eleven riparians, without real harm to either Egypt or Sudan.

In turn, these events will no doubt end the current sad state of affairs of conflict and disputes over the Nile, and help lift the 300 million inhabitants of the Nile from their ever-increasing misery, poverty and underdevelopment. After all, the vision of the NBI itself, which Egypt and Sudan subscribed to in 1999, is to achieve sustainable socio-economic development through equitable utilization of, and benefit from, the common Nile Basin water resources. Indeed, this is what both the CFA and the Convention are about.

You can find prior IWLP Blog posts on the CFA and NBI here, here, here, and here.

Dr. Stephen McCaffrey: The Entry Into Force of the 1997 Watercourses Convention

May 25th, 2014

The following post, by Dr. Stephen C. McCaffrey, is the first in a series of essays related to the entering into force of the UN Watercourses Convention (see links to all of the essays here). Dr. McCaffrey is the Distinguished Professor of Law at the University of the Pacific McGeorge School of Law and former Special Rapporteur of the UN International Law Commission for the draft articles on the law of the non-navigational uses of international watercourses. Dr. McCaffrey can be contacted at: smccaffrey [at] pacific.edu. 

With the thirty-fifth ratification by Vietnam on 19 May 2014, the 1997 Convention on the Law of the Non-navigational Uses of International Watercourses will enter into force on 17 August 2014, ninety days after that ratification as provided by Article 36(1) of the Convention.  While the pace of ratifications has been rather slow, after an initial burst of them by Middle Eastern States, it has picked up of late.  The Convention’s entry into force is no doubt a landmark event for international water law, but it also augers well for the protection, use and management of international freshwater resources according to generally accepted principles. Despite the importance of the Convention’s entry into force, however, one should not lose sight of its significance as a reflection of basic principles of customary international law on the subject.

It is well known that the Convention was negotiated at United Nations Headquarters in 1996 and 1997 on the basis of a set of draft articles prepared by the International Law Commission over a twenty-year period (1974-1994).  The Commission had been requested by the General Assembly in 1970 to study the topic with a view to its progressive development and codification.  “Codification” in this context refers to the more precise formulation of rules of customary international law.  The Commission’s draft articles were adopted by the negotiating governments with only minor – albeit in certain cases important – changes.  The result is a treaty that would be expected to codify the most fundamental principles of the law of international watercourses.  Those principles are generally believed to be equitable and reasonable utilization, prevention of significant harm, and prior notification of planned measures.  They are expressed in specific provisions of the Convention, but a number of other provisions are supportive of or ancillary to them – such as the general obligation to cooperate, the obligation to exchange data and information on a regular basis and the obligation to protect and preserve aquatic ecosystems. To the extent that the 1997 Convention represents such a codification, the rules reflected in it would be binding on all states as customary international law whether or not the Convention was in force for a particular state.

Rather remarkably, almost immediately after the Convention was concluded the International Court of Justice began drawing heavily upon it in its judgments.  Thus in the Gabčíkovo-Nagymaros Project case (Hungary/Slovakia) (ICJ 1997), decided four months after the Convention was concluded, the Court quoted from the Convention as support for principles it articulated and relied on what is perhaps the Convention’s most basic principle, equitable and reasonable utilization, calling it a “basic right” of all states sharing international watercourses.  The same principle figured prominently in the case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (ICJ, 2010).

An aspect of the Convention’s scope that is sometimes not fully appreciated is that it covers both surface water and related groundwater.  This is due to the way the term “watercourse” is defined, to mean “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole . . . .”  (Article 2(a).)  Since most of Earth’s groundwater interacts with surface water, this coverage is quite broad.  And importantly so, since some 97 per cent of the fresh water available for human use is underground.  Thus the Convention’s provisions would apply to shared aquifers that have some connection with surface water as well as aquifers that are not themselves shared but which have a hydraulic connection with shared surface water.

A final point raised by the entry into force of the 1997 Watercourses Convention concerns the relationship of that treaty to the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes.  The latter agreement was originally envisaged and designed as a regional instrument covering states within the ECE.  This is reflected in the rather low number of parties required for its entry into force (16, under Article 26(1)) and by its emphasis on avoidance of transboundary impact, defined as “any significant adverse effect on the environment” (Article 1(2)), an issue of particular concern in the generally well-watered  and developed region.  By virtue of an amendment to the ECE Convention that entered into force on 6 February 2013, the agreement is open to accession by states outside the UNECE region.  Thus with the entry into force of the 1997 UN Convention, there are two treaties on shared freshwater resources that are open to participation by all states.  This raises the question whether the two are compatible.

The answer, in my judgment, is yes.  The two treaties have essentially the same object and purpose – cooperative use, management and protection of shared freshwater resources – even though they go about accomplishing it somewhat differently.  The 1992 Convention contains far more detailed provisions on avoidance of transboundary impact and protection of international watercourses from pollution but these are complementary to the corresponding, more general, provisions of the 1997 Convention.  Likewise, the emphasis of the 1997 Convention on equitable and reasonable utilization complements the 1992 Convention, which covers the principle concisely in the context of activities which cause or may cause transboundary impact (Article 2(2)(c)).  The fact that one state with significant international watercourses, Uzbekistan, has already ratified both treaties suggests that governments, too, see a synergy between them.

In conclusion, the entry into force of the 1997 Watercourses Convention is a signal event in the development of international water law.  The fact that it took a number of years to achieve this status should not be a concern.  The Convention expresses basic principles of customary international law in the field in any event, many states who might otherwise have joined it already have their freshwater relations covered by specific agreements, and experience has shown that bringing general agreements like this into force can take time.  But now that the Convention has achieved the required number of ratifications to bring it into force, parties will have a constitution for their water relations, something that may encourage non-parties to join, as well.

Watercourse Convention Set to Enter into Force on 17 August 2014

May 22nd, 2014


Click HERE for the latest status of the 1997 UN Watercourses Convention
Well, it finally happened.  On 19 May 2014, Vietnam became the 35th party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. This means that on 17 August 2014, 90 days after that 35th ratification was deposited, the Convention will come into force.

Long in coming, the Convention’s success was never guaranteed. Adopted by the UN General Assembly in 1997, the Convention appeared set for ratification as 103 of the UN’s Member States voted in favor of it. Only three countries voted against – Burundi, China, and Turkey – while 27 nations abstained and 33 were absent from the vote. That vote, however, masked long-standing disagreements over how transboundary fresh water resources should be allocated and managed. In particular, upper and lower riparians disagreed between the primacy of the Convention’s cornerstone principles of equitable and reasonable use – favored by most upper riparians – and the doctrine of no significant harm – preferred by most lower riparians (for a more detailed analysis of the UNGA vote on the Convention, as well as the disparate interests, see my article).

Lackluster support in the years following the Convention’s inception suggested to some that the treaty was doomed to failure. More recently, though, the rate of ratifications more than doubled (18 in the first 12 years in comparison to 17 over the past five years). While that resurgence may have been due, in part, to the efforts of World Wildlife Fund (which in around 2009, added implementation of the Convention to its advocacy agenda), it also suggests a broadening recognition that nations have an obligation to cooperate over transboundary freshwater resources. Maybe it’s the threat of climate change, or concerns over dwindling domestic water resources. But, the fact that states are willing to bind themselves to the procedural and substantive norms of the Convention is a promising sign.

Map of State Parties to the UN Watercourses Convention

Map of State Parties to the UN Watercourses Convention

Entry into force of the Convention, though, is not the last word on the matter. In fact, this milestone raises as many new questions as existed leading to its implementation. For example, what does the geographic distribution of member states indicate for the global success of the treaty? Of the 35 ratifications, the vast majority are from either Africa (12) or Europe (16); only two ratifying parties are found in Asia and none come from the American hemisphere; five others are from the non-African Middle East region, albeit a total of eight MENA nations are now a party to the Convention. At the very least, this distribution suggests a certain geographic bias toward (and against) the Convention.

In addition, what will implementation of the Convention mean in practice? How will nations implement its mandates within their borders and in relation to riparian neighbors? Why have nations in the Americas and Asia eschewed ratification? What does the entry into force of the Convention mean for the UNECE Water Convention, which is already in force in much of Europe and on 6 February 2013, opened its membership to the rest of the world? And, what will the Convention’s implementation mean for existing regional and local transboundary freshwater agreements?

In the coming weeks, the IWLP Blog will host a series of essays addressing many of these intriguing questions. We have invited some of the most knowledgeable scholars and practitioners to offer their perspectives on the Convention’s imminent entry into force as well as on its future. As part of this series, we invite you to participate in the conversation by submitting comments at the bottom of each essay and add your own perspectives and opinions to the discussion. As you formulate your thoughts, you might want to review a prior series hosted by the IWLP Blog and prepared by Dr. Alistair Rieu-Clarke and Ms. Flavia Loures (see here and here). In addition, Water International published a special issue on the Convention accessible here.

The entry into force of the Convention is a significant landmark development in the international community’s efforts to better and peacefully manage transboundary fresh water resources. Whether this achievement translates into improved and more peaceful cooperation is a future that has yet to be written.

Essays related to the entering into force of the 1997 UN Watercourses Convention

  1. Dr. Stephen McCaffrey: The Entry Into Force of the 1997 Watercourses Convention
  2. Dr. Salman M.A. Salman: Entry into Force of the UN Watercourses Convention – Where are the Nile Basin Countries?
  3. Dr. Dinara Ziganshina: UN Watercourses Convention in Central Asia – The Current State and Future Outlook
  4. Dr. Kishor Uprety: A South Asian Perspective on the UN Watercourses Convention
  5. Dr. Götz Reichert: Entry into Force of the UN Watercourses Convention – Should Europe Care?
  6. Professor Patricia Wouters: Considering China’s approach to the UN Watercourses Convention – Time to revisit?

Côte d’Ivoire Becomes 34th Party to the UN Watercourses Convention – One More and Its Official

February 25th, 2014

On 25 February  2014, Côte d’Ivoire became the 34th Party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses.  One more, and the Convention will reach the 35 members required for it to go into force.

You can find prior postings and musings about the Convention and the growing number of ratifications over the past 3 years hereherehere,  here, here, here, here, here.

Offshore fresh water aquifers: which law will apply?

January 22nd, 2014

The following post is by Renee Martin-Nagle, a Visiting Scholar with the Environmental Law Institute in Washington, DC.  Ms. Martin-Nagle can be contacted at martin-nagle [at] eli.org.

In recent years, increasingly urgent voices have been warning of a global water crisis, as the human species consistently uses more water than is sustainably available.  Pictures of parched lands, disappearing lakes and streams, and single-faucet villages have become commonplace as thirsty straws siphon life-giving water from above and below the surface of the earth.  Currently a billion people – 40% of humanity – live in water-stressed conditions, and studies predict that the situation will deteriorate rapidly in the next few years, as the agricultural sector, which already accounts for an average of 70% of global fresh water use, struggles to feed an additional billion by 2030.

Figure 1: World map of topography and bathymetry showing known occurrences of fresh and brackish offshore groundwater.

Figure 1: World map of topography and bathymetry showing known occurrences of fresh and brackish offshore groundwater.
Reprinted by permission from Macmillan Publishers Ltd: V. Post, et.al., Offshore fresh groundwater reserves as a global phenomenon, Nature, Vol. 504, pp. 71–78 (5 December 2013) doi:10.1038/nature12858

Suddenly, in early December, a ray of hope appeared as a group of Australian scientists published a paper in Nature heralding discovery of vast meteoric fresh groundwater reserves off the coasts of China, Australia, North America, Greenland, Suriname, Nigeria and South Africa.  The group’s leader, Dr. Vincent Post of the National Centre for Groundwater Research and Training (NCGRT) and the School of the Environment at Flinders University, predicted that the “volume of this water resource is a hundred times greater than the amount we’ve extracted from the Earth’s sub-surface in the past century since 1900,” and went on to say that “[k]nowing about these reserves is great news because this volume of water could sustain some regions for decades.”  In spite of a cautionary message in the article that “[o]ffshore groundwater is not the answer to global water crises”, one recent headline excitedly proclaimed, “Aussie Scientists May Have Solved the Global Water Shortage Crisis.”

There are several reasons why the prospect of vast seabed aquifers should not distract us from addressing fresh water shortages.  First, the article admits that “[d[espite convincing indications of the widespread presence of offshore paleo-groundwater, direct observations remain limited.”  With very few exceptions, the presence of seabed aquifers has not been proven but is based on sporadic sampling and intensive modeling.  Technical challenges must be overcome in order to locate and access the aquifers, without introducing contamination that would forever foul the confined waters.  Further, the waters are not expected to be fresh, but rather either brackish or somewhat saline, meaning treatment will be required prior to use.  Once the quantity and quality of the contained water is determined, it must be abstracted and transported to a treatment or desalination facility that would probably be located on-shore at some distance from the wellhead.  Finally, after weighing the benefits and risks, one or more parties must be willing to invest substantial sums to find, recover and treat the water.  The investors would be unusually philanthropic if they did not expect an economic return within a reasonable time, so a mechanism for monetizing the water would have to be agreed upon.  If we accept Dr. Post’s statement that the seabed aquifers would meet our needs for only a few decades, any “solution” offered by the discovery would be short-lived at current consumption rates.

Figure 2: Global overview of inferred key metrics and cross sections of well-characterised vast meteoric groundwater reserves.

Figure 2: Global overview of inferred key metrics and cross sections of well-characterised vast meteoric groundwater reserves.
Reprinted by permission from Macmillan Publishers Ltd: V. Post, et.al., Offshore fresh groundwater reserves as a global phenomenon, Nature, Vol. 504, pp. 71–78 (5 December 2013) doi:10.1038/nature12858

Assuming, however, that the challenges regarding accessibility and financial return could be overcome, determinations would have to be made whether jurisdiction and ownership of the water would follow domestic law, international water law, or the Law of the Sea.  Aquifers lying under the territorial sea of one nation would doubtless be governed by its domestic laws, but questions would arise for transboundary aquifers. If international water law principles were to guide ownership and use, a further determination would have to be made about which guidelines to follow.  The Convention on the Law of the Non-navigational Uses of International Watercourses (the Watercourses Convention) needs ratification by two more states to enter into force, but by its terms the Watercourses Convention only applies to aquifers with a link to a surface water system.  Since they are fossil aquifers, the seabed aquifers lack such a link to any surface water system.  The 2008 UN Draft Articles on the Law of Transboundary Aquifers (the “Draft Aquifer Articles”) include fossil aquifers within their scope, granting nations full sovereignty to aquifer formations and the water therein that lie under their borders (Art. 3).  However, the Draft Aquifer Articles have thus far received scant attention, and, in the Case Concerning the Gabčíkovo-Nagymaros Project, the International Court of Justice rejected the notion of absolute sovereignty over transboundary waters.  If the treaty void for transboundary aquifers were to be filled by adopting customary laws that have developed for transboundary surface waters, then nations sharing transboundary seabed aquifers may be expected to abide by such customary law principles as equitable and reasonable use, prevention of significant harm and exchange of information.

Alternatively, one could argue that the UN Convention on the Law of Sea (UNCLOS), which has entered into force, should serve as the prevailing set of guidelines.  In that case, a preliminary determination would have to be made as to whether water should be treated as a non-living resource such as minerals, oil and gas.  Under UNCLOS, non-living resources located within the 200-mile exclusive economic zone (EEZ) of a nation belong to that nation.  Oil and gas extraction follows the law of capture, which can result in windfall for nations with access to technology and financial resources.  An argument could be made that fresh, or even brackish, water should not be treated as a non-living resource, since water is the most vital of resources, necessary to support terrestrial life.  Indeed, the scope of the Draft Aquifers Articles initially included oil and gas along with water, but water was deemed too important to be treated in the same way as other extractive resources (see C. Yamada, Fourth report on shared natural resources: transboundary groundwaters (2007)).

The day may come when technology, financing and need will all converge to make extraction of the water in the seabed aquifers practical and even necessary.  Prior to that day, fundamental questions on legal regimes and treatment of vital resources will have to be raised and answered.

Israeli-Palestinian Agreement on Water within Sight

January 8th, 2014

The following post is by David B. Brooks, an Associate with the International Institute for Sustainable Development in Winnipeg, Manitoba, Canada. Mr. Brooks can be contacted at david.b.brooks34 [at] gmail.com.

Many people have said that the last thing on which Israelis and Palestinians will be able to agree is fresh water.  They are very likely wrong.  Over the past year, the two governments have been discussing a draft water agreement that was designed by Friends of the Earth Middle East (FoEME), an Israeli-Jordanian-Palestinian environmental NGO that focuses on border issues.

Failings of the Oslo Process

Since the start of the Oslo process in 1993, all attempts at the peace process have been predicated on the belief that that a peace agreement must provide a simultaneous solution to all issues (i.e., “nothing is agreed until everything is agreed”). This approach has failed.

Based on the development of a draft water agreement for FoEME by two Canadians, David B. Brooks and Julie Trottier, as well as informal discussions with the Israeli Institute for National Security Studies and the Palestinian Water Authority, the best chance for reviving the floundering peace process is to start by tackling “easier” issues, particularly fresh water.

Shared Water Resources of Israel, Palestine and Jordan

Given the Palestinian need for more water, Israel’s new water supply from large-scale desalination, and a mutual need to deal with untreated sewage, bringing water from last to first in the peace process makes economic, ecological, and, most importantly, political sense. For Palestinians, it would provide fresh water in every home; for Israelis, it would remove pollutants from rivers that flow through its main cities. The goal in sight is a Final Accord on Water, not just another interim step.

Breaking Away from the Oslo Model for Water

In addition to the broad tradeoff – more water for Palestinians; better water for Israelis -– the FoEME Proposal is put forward on the basis of two political questions: First, why wait for conclusion of a final status agreement? If, instead of fixed allocations, as with the Oslo agreements, one thinks of ongoing joint management, agreement can be reached right now.  Second, why not shift from a static to a dynamic form of agreement?  The Oslo agreement is dependent on a particular set of borders; the FoEME Proposal is adaptable to any set of borders.  The Oslo-designed Joint Water Committee can only deal with what is deemed Palestinian water; the FoEME Proposal includes joint management of all shared water, which is to say any water that flows along, across, or under the border.  The Oslo approach looks at water as primarily a supply issue; the FoEME Proposal gives as much attention to reducing demand as to increasing supply.  Finally, but perhaps most important, the Oslo agreements propose fixed quantitative allocations of water to Israelis and to Palestinians; the FoEME Proposal incorporates an ongoing review process that adjusts water allocations over time, and ensures that total withdrawals stay within sustainable limits.

One cannot share water as if it were a pie.  Transboundary agreements can divide land this way, but not water.  Water may start as rainfall, but it is then typically used over and over again, sometimes by a group of Palestinian farmers cooperating in a decentralized way, sometimes by the highly centralized Israeli water network, before it finally evaporates or flows into the sea.   With each stage of use, water quality is altered, generally for the worse.  The Oslo approach treats water as if it were both immobile and constant in quality.  The FoEME Proposal recognizes that water is mobile in space and variable in quality.

The Structure of the FoEME Proposal

Cover Page - An Agreement to Share WaterThe FoEME Proposal suggests creation of two key bodies:

  • Bilateral Water Commission replaces today’s Joint Water Committee with responsibility for all shared water (non-shared water sources would remain managed nationally).  The BWC makes key decisions on rates of extraction and of delivery of shared water, and the removal and treatment of waste water.  Its decisions are based on advice from an Office of Science Advisors (OSA) made up of professional staff appointed or seconded by the two governments.  Because it is potentially so powerful, the BWC is not allowed to make decisions independently; rather, it can only accept or reject recommendations from the OSA, but not alter them.  This format avoids giving either side the ability to leverage water issues in endless horse-trading on other, wider issues.
  • Water Mediation Board comes into play whenever the BWC finds itself unable to accept a decision of the science advisors, or if a group or community opposes its decision.  The WMB would have a wide range of tools available to guide a process of seeking resolution ranging from scientific investigations to public forums.  All of these tools must be used in as transparent a way as possible, so as to give credence to its recommendations.

 

Both the BWC and WMB should be composed of an equal number of Israeli and Palestinian representatives plus possibly one person from outside the region. If voting is necessary, the rules are designed to prevent either side from dominating the other.  For example, if the BWC has seven members, any majority decision would have to have to have the support of least one Israeli and one Palestinian.

An Israeli-Palestinian water agreement is possible – Right now!  Though not designed for any purpose other than managing shared water, it could become the first step in creating the final status agreement that has eluded negotiators for so many years.

 

The full 180,000 word version of An Agreement to Share Water between Israelis and Palestinians: The FoEME Proposal (with Arabic and Hebrew translations of key chapters) by David B. Brooks and Julie Trottier is available here.  An abridged version, entitled Changing the Nature of Transboundary Water Agreements: The Israeli-Palestinian Case by Brooks, Trottier and Laura Doliner, is available here.