Archive for the ‘Africa’ Category

Disputes over International Watercourses: Can River Basin Organizations make a Difference?

Friday, July 21st, 2017

The following essay by Sabine Blumstein and Susanne Schmeier is a summary of a recently published book chapter titled “Disputes Over International Watercourses: Can River Basin Organizations make a Difference?”. Ms. Blumstein works as a Project Manager at adelphi. Ms. Schmeier is Coordinator for Transboundary Water Management at the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). They can be contacted at: blumstein[at]adelphi.de.

 

Book coverDisagreements or even full-fledged disputes over the use of water resources in shared basins have increasingly made headlines in the past years. Developments in the Mekong, Nile, Syr Darya, Indus and other basins have led more and more scholars, as well as policy-makers and journalists, to warn of the risk of water conflicts or even wars. This revives – albeit in a more informed manner – the water wars debate of the early 1990s. While much progress has been made since then – especially through the creation and institutionalization of cooperative arrangements in many shared basins – disputes nonetheless continue to occur. And they do occur even in basins with River Basin Organizations (RBOs) in place, which have often been set up to solve, mitigate or prevent such disputes.

However, research on transboundary river basin management as well as empirical evidence from basins around the world suggest that RBOs do make a difference. They provide a variety of direct and indirect mechanisms for dispute resolution, as discussed in a recently published chapter which appeared in “Management of Transboundary Water Resources under Scarcity. A Multidisciplinary Approach”. In this chapter, the authors shed light on how RBOs engage in the solution of disputes that arise over water resources in transboundary basins. And they show that it is not dispute-resolution mechanisms in the narrow sense – often identified as the key if not the only instruments RBOs provide – that make a difference in whether a conflict is solved peacefully in a cooperative manner. Instead, it is the broader cooperative framework of RBOs that matters.

The authors review existing dispute resolution mechanisms of international RBOs around the world in a comprehensive manner. Their research indicates that more than 50% of the 121 analyzed RBOs have a dispute resolution mechanism in place – seemingly a good starting point. Among those, they identify three broader categories of RBO dispute resolution mechanisms: bilateral negotiations between those RBO members involved in a disagreement; RBO-internal mechanisms; and external actors’ involvement. Often, states have opted to establish more than one step in the respective dispute-resolution mechanism, structuring the processes in two instances with different mechanisms to be applied. For instance, bilateral negotiation between disputing parties (facilitated by the RBO) are often followed by a possible engagement of external actors – both 3rd party mediators and judicial ones.

The authors also provide explanations for why dispute resolution mechanisms vary around the world (in terms of existence in the first place, but also in design). Often, it is the history of cooperation (also beyond the water sector) that determines both the existence as well as the exact design of dispute resolution mechanisms. The high share of dispute resolution mechanisms in African RBOs, for example, can be explained by the past conflicts found in many African basins as well as the high presence of international donors, which often consider well-defined dispute-resolution mechanisms as a prerequisite for successful cooperation. In Europe, on the other hand, the existence of cooperation mechanisms (including specific instruments for solving disputes) in many issue-areas has limited the need for well-defined dispute resolution mechanisms within specific basins and RBOs.

Regional distribution of dispute-resolution mechanisms in RBOs

    Regional distribution of dispute-resolution mechanisms in RBOs

In the second part of the chapter, the authors analyze two conflicts in greater detail in order to shed more light on how exactly RBOs make a difference in solving or mitigating disputes in shared basins. For the Mekong River Basin, they find that while the Mekong River Commission’s (MRC) dispute resolution mechanisms themselves (see Art. 34 and 35 of the 1995 Mekong Agreement) might seem insufficient for addressing issues as complex as recent hydropower developments and related inter-state conflicts, the MRC provides ample other tools for ensuring that such disputes get addressed in a cooperative manner and on the basis of comprehensive technical data and information. Although having been criticized by many scholars, the MRC’s Procedures for Notification, Prior Consultation and Agreement (PNPCA) and the processes established around them (e.g. the identification of environmental and socioeconomic baselines, the establishment of guidelines for impact mitigation, etc.) have ensured that disagreements have been handled in a rather cooperative manner. This is particularly obvious if compared to similar situations of unilateral hydropower development in other basins around the world.

For the Nile River Basin, the authors find that the Nile Basin Initiative (NBI) did not directly contribute to diplomatic negotiations or any other form of direct resolution of the conflict around the Grand Ethiopian Renaissance Dam (GERD), which can partly be explained by the absence of any NBI dispute resolution mechanism. In addition, the lack of any notification mechanism or requirement to exchange data/information on planned infrastructure measures which could potentially impact downstream countries, prevented the NBI to play any significant role in averting the dispute in the first place. Despite this limited role in conflict prevention and direct diplomatic engagement, NBI played an important role in defusing the conflict through broader activities around data and information sharing and increasingly distributing this knowledge to the broader public. The RBO’s activities regarding knowledge distribution and more neutral reporting through national media is an important contribution to de-securitize national discourses around the construction of GERD and hence a precondition for any final resolution of the dispute.

While the findings reveal that the existence of specific dispute resolution mechanisms in a narrow sense does not necessarily influence the success of dispute resolution and depends on a number of other intervening factors, RBOs as a whole do matter in 2addressing water-related conflicts. This is because RBOs provide a range of instruments beyond pure dispute resolution mechanisms: amongst others, they provide platforms for negotiation and exchange, data and information exchange or notification procedures. These instruments are of key importance to solve, contain or even prevent conflicts. Water practitioners and policy actors should therefore not exclusively focus on the specific dispute resolution mechanisms provided by RBOs but be aware of and actively use the broader repertoire of governance instruments provided by RBOs to avoid and solve evolving disputes in transboundary river basins.

 

The Fairness ‘Dilemma’ in Sharing the Nile Waters: What Lessons from the Grand Ethiopian Renaissance Dam for International Law?

Friday, June 30th, 2017

The following essay by Dr. Zeray Yihdego is a summary of his recently published monograph (under the same title), which appears in Vol. 2.2, 2017, pp. 1-80, of Brill Research Perspectives in International Water Law. Dr. Yihdego is a Reader in public international law at the School of Law, University of Aberdeen. He can be reached at zeray.yihdego [at] abdn.ac.uk.

The Nile, the longest River in the world, is shared by eleven riparian states, including Egypt, Sudan, South Sudan and Ethiopia.  Ethiopia contributes about 86% of the Nile waters, while Egypt (and to a certain extent Sudan) rightly or arbitrarily use most of the waters. Rightly because the climate and dependency of the two downstream countries on the Nile may be used to justify their historic or existing (lion) share. Arbitrary because other riparian states with millions of people who live within the basin are denied their equitable share of Nile water resources and socio-economic development needs. The construction of the Grand Ethiopian Renaissance Dam (GERD) by Ethiopia on the Blue Nile is justified by Ethiopia based on equitable utilisation and crucial development needs, while questioned (until March 2015) by Egypt as a threat to its ‘historic’ water use rights.

This monograph articulates the key arguments and messages of enquiring into the fairness dilemma in connection with the construction, reservoir filling, and to some extent, future operation of the GERD, in light of relevant colonial-era Nile treaties, post-1990 Nile framework instruments, and international water law.

Nile-GERDAfter providing factual, political and historical context to the GERD case in the Introduction, the monograph sets out the theoretical and normative framework around Thomas Franck’s fairness principle, and international water law (IWL), as primarily featured in the 1997 United Nations Watercourses Convention (UNWC). Franck’s theory of fairness uses procedural legitimacy (or right process) and distributive justice as two fundamental features of fairness.  These are supported by the rejection of making absolute claims and the possibility of accommodating inequality among states, as caveats to the fairness principle. It is argued that IWL, in general, and the UNWC provide rules and principles that specifically fit into the principle of fairness in all its aspects, although there is no evidence to suggest that inequality is tolerated or promoted in international (water) law.

Given that none of the Nile basin states is a party to the UNWC, and notwithstanding the relevance and application of customary international water law to the GERD, the monograph resorts to dealing with the Nile Basin Initiative and the Nile Basin Cooperative Framework Agreement (CFA), and argues that the CFA, either as a treaty regime or a codification of customary watercourses law, represents an emerging Nile basin legal framework with a potential to addressing questions of fairness in the basin. As the CFA has not entered into force and Egypt and Sudan do not constitute part of the process, however, the fairness of the GERD cannot be judged form the CFA perspective.

Following a thorough investigation of the fairness of the 1902 Nile Treaty, the 1993 Ethio–Egyptian Framework instrument, and the tripartite Declaration of Principles (DoPs) on the GERD signed by Ethiopia, Sudan and Egypt in March 2015, the monograph submits that the 1902 and 1993 instruments do not provide a fair content and system for the concerned parties, albeit for different reasons. While the 1902 Nile Treaty is inherently arbitrary, and thus not compatible with the notion of fairness, the 1993 instrument incorporated modern principles of IWL, but not sufficiently, and lacks specificity of rights and duties of the two countries.  In contrast, the DoPs is founded on the globally accepted principles and rules of IWL and has

Grand Ethiopian Renaissance Dam

Grand Ethiopian Renaissance Dam

embraced both relevant content and legitimate process. The content of the DoPs includes the adoption of equitable utilisation and no significant harm principles. Similarly, the process agreed to in the DoPs includes the duty to exchange data and information, establishment of a National Technical Committee, the use of foreign consultancy firms and the use and endorsement of the work of an International Panel of Experts (IPoE).  All these, although not without challenges, have been negotiated in good faith, with equal participation of all concerned.

Based on this analysis, the monograph submits that:  the GERD is a symbol of a fair share of the Nile waters, the realization of which depends on, inter alia, an appropriate economic return and prevention of significant impacts; although application of the fairness principle can be complex, the notions of procedural fairness and distributive justice can be applied to define and delineate the principle with reference to a specific treaty regime; despite historical or existing injustice, a fair share of natural resources can bring sustainable and durable peace in inter-state relations.

The entire article is available here.

 

The Nile Basin Cooperative Framework Agreement: The Impasse is Breakable!

Monday, June 19th, 2017

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and Editor-in-Chief of Brill Research Perspectives, International Water Law. 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.

A summit of the head of states of the Nile Basin countries is planned for June 22, 2017, in Entebbe, Uganda, to discuss the impasse over the Nile Basin Cooperative Framework Agreement (CFA). The summit is to be preceded by a meeting of the ministers of foreign affairs of the Nile countries on June 20 – 21, 2017. The purpose of this Note is to clarify the differences over the CFA, and to propose a roadmap for resolving these differences.

The CFA and the Differences Thereon

The Nile Basin Initiative (NBI) was born on February 22, 1999, in Dar-es-Salam, Tanzania, following the signing of the minutes of the meeting by nine of the Nile ministers of water resources in attendance. The NBI was facilitated by a number of donors led by the World Bank and the United Nations Development Programme (UNDP). The NBI was established as a transitional arrangement to foster cooperation and sustainable development of the Nile River for the benefit of the inhabitants of those countries. The 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.”

Work started immediately on the CFA, and lasted ten years. However, by 2009, major differences over some basic issues erupted, and could not be resolved, neither at the technical, nor at the political levels, leading to the impasse on the CFA. These major differences persisted as a result of the resurfacing and hardening of the respective positions of the Nile riparians over the colonial treaties, as well as the Egyptian and Sudanese claims to what they see as their acquired uses and rights of the Nile waters, and the rejection of these claims by the upper riparians.

Nile_Map_UpdatedThe first difference related to water security. Article 14 of the CFA required the Basin states to work together to ensure that all states achieve and sustain water security. However, this paragraph did not satisfy Egypt and Sudan who wanted to ensure, through an additional clause, that their existing uses and rights are fully protected under the CFA. Consequently, Egypt and Sudan demanded and insisted that Article 14 of the CFA should include a specific provision, to be added at the end of the Article, that would oblige the Basin states “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” This demand was rejected by the upper riparains who saw it as a denial of the basic principle of equitable and reasonable utilization, and a breach of the vision of the NBI itself.

The second major difference related to the concept of notification, demanded by Egypt and Sudan and rejected by the upper riparians. The upper riparians saw it as a means for Egypt and Sudan to invoke the colonial treaties and their claim of veto power.

While the impasse persisted, on May 14, 2010, four of the Nile riparians (Ethiopia, Tanzania, Uganda and Rwanda) signed the CFA in Entebbe, Uganda. They were joined five days later by Kenya, and by Burundi on February 28, 2011. The CFA has thus far been ratified by Ethiopia, Tanzania and Rwanda. It needs a total of six instruments of ratification/accession to enter into force. Egypt and Sudan continue to vehemently reject the CFA.

Developments Since Conclusion of the CFA

The upper riparians continued with their projects on the Nile notwithstanding the impasse over the CFA, and the erosion of the NBI. The Grand Ethiopian Renaissance Dam (GERD), which commenced in 2011, has proven a major challenge to, and a source of a bitter dispute between Ethiopia on the one hand, and Egypt and Sudan on the other. However, by December 2013, Sudan broke ranks with Egypt, and declared its full support of the GERD.

Egypt followed, albeit reluctantly, fifteen months later. Egypt, Sudan and Ethiopia concluded in March 2015, through their head of states the Agreement on Declaration of Principles on the GERD (DoP). Egypt and Sudan basically accepted, through the DoP, the GERD and declared for the first time ever “the significance of the River Nile as a source of livelihood and the significant resource to the development of the people of Egypt, Ethiopia and Sudan.” The three countries agreed further “to cooperate based on common understanding, mutual benefit, good faith, win-win, and the principles of international law, (as well as) in understanding upstream and downstream needs in its various aspects.” The DoP went on to state explicitly that “the purpose of the GERD is for power generation to contribute to economic development, promotion of transboundary cooperation and regional integration…”

The DoP included other provisions on equitable and reasonable utilization, the obligation not to cause significant harm, as well as peaceful settlement of disputes. It also contained explicit provisions on the GERD, including cooperation on filling its reservoir, as well as its safety. The DoP was confirmed nine months later through the signature by the three countries of the Khartoum Document in December 2015 at their 4th tripartite meeting.

Breaking the Impasse

These developments clearly annulled Egypt and Sudan previously held position of securing all the Nile waters for their exclusive use through existing uses and rights, and the veto power over other Nile countries’ projects. Equality of all the riparians, as pronounced by the Permanent Court of International Justice in the 1929 River Oder case, and reconfirmed by the International Court of Justice in the 1997 Gabčíkovo-Nagymaros Project case, is now fully accepted by Egypt and Sudan. Similarly, Egypt and Sudan have confirmed their acceptance of the basic and cardinal principle of international water law of equitable and reasonable utilization.

The consequent and logical step for Egypt and Sudan is to drop their demand for recognition of their existing uses and rights as a part of the water security paragraph of the CFA. Indeed, the whole section of the CFA on water security is no longer needed, given that the CFA includes the same provisions of the United Nations Watercourses Convention (UNWC) on equitable and reasonable utilization, as well as on the obligation not to cause significant harm. It is worth mentioning that the UNWC includes no provisions on water security, as this is not a legal concept – merely a political pronouncement.

The quid pro quo for Egypt and Sudan agreeing to drop their demand for recognition of their existing uses and rights is to include provisions in the CFA similar to those of the UNWC on notification. This should cause no alarm to the upper riparians as the basis of Egypt and Sudan of their veto power in case of notification – the colonial treaties – is no longer on the table since the two countries have accepted the principle of equality of all the riparians. Besides, notification could take place through the Commission to be established under the CFA, or through the ministerial council of the Nile Basin States as happened in the latter years of the NBI before the differences erupted over the CFA.

This compromise would address the concerns of both Egypt and Sudan on the one hand, and those of the upper riparians on the other. Its details can be successfully worked out through good faith negotiations, if the political will among the Nile riparians exist. Indeed, this political will is urgently needed to resolve the differences over the CFA and conclude an agreement that is inclusive of all the Nile riparians, so as to pull the 250 million inhabitants of the Nile Basin out of their poverty, underdevelopment, hunger and darkness.

 

Midriver States: An Overlooked Perspective in the Nile River Basin

Monday, September 26th, 2016

The following essay is by Aletta Brady, Member of the U.S. National Commission for UNESCO Youth Working Group. She can be reached at clairealettabrady@gmail.com.

The majority of research on transnational cooperation in the Nile River basin (and elsewhere) has failed to note the distinct perspective of midriver states. Most academic literature on transboundary river basins classifies states solely as upriver or downriver states, even in instances where countries, geographically and behaviorally, are midriver states.  Midriver states have an important position and role to play in transboundary river basins as they intimately understand the needs and concerns of both their upriver and downriver neighbors. Midriver states also have a more complex perspective of their “rights” based on their combined upstream/downstream interests. This aspect is being ignored under contemporary analyses.

An upriver state is a country out of which water in a river flows. Such states generally advocate for their right to the equitable and reasonable utilization of the waters of a transboundary river. A downriver state is a country into which a river flows. Downriver states tend to advocate for the principle of no significant harm, desiring water flow upriver to be preserved in its near-natural state until it reaches their downriver territory. A midriver state refers to a country that has water from a discrete river flowing both into and out of its territory. Midriver states can espouse the desires of both upriver and downriver states, depending on whom they are dealing with.

river_nile_mapThe Nile River basin has three mid-river states: Sudan, Uganda, and South Sudan. The academic literature has classified these states based on historical political allegiance and economic interest. For example, Sudan is usually categorized as a downriver state largely based on its historic allegiance to Egypt. Similarly, Uganda’s advocacy for a fair share of the Nile River, along with Ethiopia, has led to its classification as an upriver state. These binary categorizations, however, do not accurately characterize the behavior and interests of these two states in the Nile Basin.

Sudan’s actions and statements over the course of the past century support a much more complex analysis. Consider, for example, that in 1929, Sudan rejected the Nile Waters Agreement (NWA)—an agreement that allocated shares of the Nile River waters, giving the majority share to Egypt—between Egypt and Great Britain. Then, in 1959, Sudan changed its position and signed the Agreement for the Full Utilization of the Nile Waters with Egypt. In 1991, Sudan signed a bilateral agreement with Ethiopia, to the dismay of Egypt, that established a joint technical committee for data sharing and exploring mutually beneficial projects, and that recognized a commitment to the principle of equitable and reasonable utilization of the Nile waters. In 1996, Sudan once again sided with Egypt in opposition of Project D3—an Ethiopian proposal to establish legal cooperation and water sharing among all of the basin states. But, in 2012, Sudan expressed support for Ethiopia’s Grand Ethiopian Renaissance Dam (GERD) against the counsel of Egypt. Sudan’s vacillating allegiance between Egypt and Ethiopia is evidence that Sudan acts neither consistently in the interest of an upstream state nor in the interest of a downstream state, but rather fluctuates between the two because it is, quite literally, caught in the middle. Sudan wants both to utilize the water within its boundaries before it flows downstream, and preserve water flow into its territory from upstream neighbors.

Similar to Sudan, Uganda’s position on which Nile neighbor to support has fluctuated. The Ugandan government opposed Egypt’s 1929 NWA. But, when Egypt supported the joint-technical institutions, HYDROMET (1967-1992) and TECCONILE (1993-2002), Uganda became a member alongside Egypt. Ethiopia and Burundi wanted legal cooperation that granted upstream states an equitable water share of the Nile River and saw TECCONILE, a technical institution, as a distraction. In comments recorded from the 1995 annual meeting of the Council of Ministers for Water Affairs (Nile-COM), Burundi explained that it would not join TECCONILE unless it “completed [an] institutional framework… [that] must guarantee equitable benefits to all.” Uganda also supported Egypt’s UNDUGU organization that launched in 1983, which was opposed by the majority of Nile upriver states.  In 1993, the Ugandan government opposed the implementation of Project D3, a legal project intended to investigate each state’s need for water, which was also supported by a majority of Nile upstream states.  In those same Nile-COM MEETING notes, a Ugandan representative criticized upriver states for being “not yet sure of the benefit from ongoing” transboundary Nile collaborations, and described the possibility of Project D3 as an “optional utilization of the Nile River.” Uganda warned against D3 “paralyz[ing] other activities, especially those that could lead to large investments in the basin.” But, in 2014, during an interview that I conducted, a Ugandan official explained that Ethiopia’s GERD “was the right thing to do,” even though, at the time, Egypt vehemently disapproved of the project.

In addition, Ugandan and Sudanese government officials, in similar interviews, identified both the desire to ‘utilize’ and ‘maintain’ the waters as high priorities, underscoring their intermediary positions as midriver states in the basin. In contrast, Ethiopian officials ranked the desire to utilize Nile waters as more important than the desire to maintain the quantity of the water, which aligns with their position as an upriver state advocating for the principle of equitable and reasonable utilization. Following suit, Egyptian officials emphasized maintaining the quantity of water as more important than utilizing the water, which aligns with their advocacy for the principle of no significant harm.

When South Sudan gained statehood in 2011, media outlets and publications immediately began discussing South Sudan as an upriver state. However, while South Sudan’s time as an independent nation has been brief, it has already demonstrated tendencies of mixed allegiances fluctuating between its downstream and upstream neighbors. For example, soon after its independence, South Sudan’s Minister of Irrigation and Water Resources stated in an interview (see here) that it was “inevitable” that South Sudan would sign the CFA, which has long been opposed by Egypt. Since that time, however, South Sudan has yet to sign that accord, which some speculate is due to its relationship with Egypt. South Sudan’s emergence as the newest basin state should be discussed as an addition to the midriver cohort in the basin rather than an additional upriver state.

Where transnational basin agreements and negotiations are approached as bilateral in nature (with the two main positions of upriver and downriver states), negotiators will likely miss key interests and perspectives of the intermediary stakeholders. Moreover, approaching negotiations with a bilateral framework puts midriver states in the uncomfortable position of choosing which neighbor to side with, even when their interests do not fully align. This could lead to midriver states reneging on agreements, or shifting allegiances, as seen in the Nile River basin. This, in turn, could increase tensions. Accordingly, a new trilateral framework encompassing the midriver classification should be utilized to better describe the relationships and interests of nations in the midriver position.

 

Robyn Stein and Georgina Mackenzie: Implication of the Entry Into Force of the UN Watercourses Convention for Southern African States

Tuesday, August 12th, 2014

The following post by Robyn Stein and Georgina Mackenzie is the eighth 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). Ms. Stein is Director and attorney with Edward Nathan Sonnenberg, Inc. in South Africa where she specializes in water law and policy. She can be reached at rstein [at] icon.co.za. Ms. Mackenzie is a candidate attorney working with Ms. Stein.

Introduction

The Revised Protocol on Shared Watercourses (Protocol) of the Southern African Development Community (SADC) came into force in 2003. The original Protocol, concluded between SADC member states in 1995, was revised to ensure that it reflected those of the then pending 1997 UN Watercourses Convention (UNWC). With a few notable exceptions, numerous provisions of the Revised Protocol have identical counterparts in the UNWC. As South Africa and Namibia are the only SADC states to have ratified the UNWC, it must be asked whether the entry into force of the UNWC will have any impact on the implementation or content of the SADC Protocol, and whether other SADC states might now be motivated to accede to the Convention.

Notable differences between the UNWC and the Protocol

Despite numerous Protocol provisions mirroring the UNWC, there are two fundamental differences between the instruments:

Dispute resolution mechanisms

Under Article 7 of the Protocol, member states must “strive to resolve” disputes relating to the implementation, interpretation or application of the Protocol amicably.  Otherwise, disputes must be referred to the SADC Tribunal. In contrast, the corresponding article in the UNWC, Article 33, offers numerous dispute settlement options beginning with negotiations, followed by mediation or conciliation through a third party, the use of joint watercourse institutions, submission to arbitration, and adjudication by the International Court of Justice.

Furthermore, under Article 33(3) of the UNWC, if the parties have not settled their dispute within 6 months, any party can unilaterally initiate impartial and compulsory fact-finding procedures. A “Fact-finding Commission,” comprised of members nominated by both parties, is thereafter required to produce a report setting out findings and recommendation for an equitable solution. While the parties must consider such findings and recommendations in good faith, scholars suggest that they are not bound by the pronouncement. In this sense, the Commission may be characterized as “compulsory conciliation.” This fact-finding procedure is one of the significant provisions of the UNWC, and yet the most notable absence from the Protocol.

Countries in the Southern African Development Community

“Equitable utilisation” principle vs the “no harm” obligation

Both the UNWC and the Protocol oblige watercourse states to utilise shared watercourses in an “equitable and reasonable manner” vis-à-vis other riparians. Whether or not such use is reasonable and equitable depends on a non-exhaustive number of social, economic and environmental factors listed in both instruments. Each instrument (Protocol Article 3(10)(a); UNWC Article 7(1)) obliges parties to take “all appropriate measures to prevent significant harm to other watercourse states.” The legal relationship between these two principles is of extreme importance and the precedence of one specific principle over the other has been deemed to have wide-ranging implications.

It is now widely recognised that the UNWC gives precedence to the equitable utilisation principle over the no significant harm obligation and is considered the “cornerstone” of the UNWC. This position is evident in the International Court of Justice’s endorsement of this preference in the 1997 case of Gabcikovo-Nagymaros. In contrast, Protocol Article 3(10)(b) states that where significant harm is nonetheless caused to another watercourse state, the responsible state must take appropriate measures to eliminate or mitigate such harm having due regard for the provisions of Article 3(10)(a), which embodies the Protocol’s no-harm obligation. Therefore some have interpreted the Protocol to give preference to the no-harm obligation over the equitable utilisation principle.

While it may be argued that some Protocol provisions have been poorly drafted, two arguments support the precedence of the no-harm obligation in the Protocol.

Despite the express reference to the UNWC, the Protocol was never intended to mirror the UNWC. This is evident in historical drafts and instruments as well as other notable differences between the two instruments. Moreover, while the Protocol provides a substantial definition for “significant harm,” the UNWC contains no comparable characterization. Arguably, inclusion of this definition in the Protocol indicates that the drafters intended to harness the objective nature of this definition and its factual importance to the complex set of SADC transboundary water resource issues. As such, they sought to ensure that the no-harm obligation prevails over equitable and reasonable use.

Stephen McCaffrey, a leading scholar of international water law contends that the preference in the Protocol for the no-harm obligation prevents SADC states from developing or using shared watercourses in a manner that causes significant harm to other watercourse states – even if such use or development were equitable and reasonable – unless the latter states consent to such use and development. While this precedence in the Protocol favours downstream watercourse states, the UNWC’s structure has the converse effect.

Accession to the UNWC by other SADC member states

As the Protocol is largely based on the framework of the UNWC, more SADC states might have been expected to have ratified the Convention by now. However, only Namibia and South Africa joined the UNWC. Two reasons might explain the hesitancy of remaining SADC states toward the Convention.

Questioning the relevance of the UNWC

Article 3(1) ensures that pre-existing watercourse agreements and states’ rights and duties arising from such agreements (including the Protocol) remain unaffected by accession to the UNWC. All that the Convention requires is that states “consider harmonizing such agreements with the basic principles” of the UNWC. Furthermore, Article 33(1) gives precedence to regional machinery where it exists (such as the Protocol) for dispute resolution. Therefore SADC states may feel that there is no urgency to accede to the UNWC.

Redundancy of instruments

The UNWC was intentionally designed as a framework convention with basic principles and rules that can be used flexibly and inform inter-state watercourse agreements. It was always intended to be supplemented by more detailed agreements. The Protocol, with its connection to the UNWC, adopted a similar framework approach. Therefore, some SADC states might view the UNWC as a duplication of the Protocol and regard membership in the Convention a redundant undertaking (see here).

Effect of entry into force of the UNWC on implementation of the Protocol

The origins of the UNWC reinforce one of the UNWC’s primary purposes – to codify and progressively develop the content of customary international water law. McCaffrey asserts that the UNWC strengthens and clarifies customary international law principles governing international watercourses through its status as the most authoritative statement of the norms of international water law, including the principle of equitable and reasonable utilization. SADC states opposed to the precedence of the no-harm obligation in the Protocol might use the UNWC to evidence customary international law’s preference for equitable and reasonable use. This could create discord among SADC members and cause undermine the founding principles of both the UNWC and the Protocol.

In contrast, SADC states that support the preference for the no-harm obligation in the Protocol might contend that the UNWC merely codifies the normative principles of customary international law without defining the core and content of the prioritisation of equitable and reasonable use over the no-harm obligation. At issue is the extent to which the UNWC provides practicable guidance on how the precedence will inform the drafting of effective shared watercourse agreements between states. Similarly, SADC members may assert that notwithstanding the precedence of equitable and reasonable use in the UNWC, alignment between the Protocol and the UNWC is unachievable until the UNWC offers more guidance on how its normative principles can be given practical effect (see here). This is particularly evident where competing interests arise in circumstances of hydro-political conflict and dire water scarcity, both of which are ongoing challenges within the SADC region.

This argument is reinforced by the nature of the UNWC as a framework instrument designed to inform the structure of local and regional watercourse agreements. By allowing pre-existing agreements to remain intact (Article 3(1)) and permitting adjustments to Convention provisions where required by local circumstances (Article 3(5)), the UNWC can be tailored to specific watercourses. This feature, however, may make some SADC states uncomfortable with the extent to which member states can depart from the UNWC’s norms, and the degree to which such departures and varied interpretations can be effectively managed.

Conclusion

Until more SADC states accede to the UNWC (which appears unlikely in the near future), the coming into force of the Convention will have limited effect on the Protocol. The UNWC will provide interpretive guidance to those Protocol provisions that incorporate the normative principles of customary international law embodied in the UNWC. Absent constructive and inclusive engagements between SADC states and a central agency responsible for managing and implementing the UNWC, it is unlikely that it that UNWC will have a tangible influence on the Protocol for some time to come.

 

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

Monday, 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 River Basin. Source: Nile Basin Initiative

The Nile River Basin. Source: Nile Basin Initiative

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.

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

Tuesday, 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.

Adoption of Regional Strategic Action Plan on the Nubian Sandstone Aquifer

Sunday, October 20th, 2013

The following post is by Raya Marina Stephan, a water law specialist and consultant, and Chair of the Publication Committee of the International Water Resources Association. Ms. Stephan can be reached at raya.stephan [at] yahoo.com.

On 18 September 2013, the Ministers in charge of water resources in the four States of the Nubian Sandstone Aquifer System (NSAS) (Chad, Egypt, Libya & Sudan), and the Chairperson of the Joint Authority for the Study and Development of the Nubian Aquifer, signed an important document, the Regional Strategic Action Plan (SAP).

The NSAS is one of the largest aquifer systems in the world, composed of non-renewable groundwater. It extends over 2,000,000 km2 and contains about 540,000 km3 of water, out of which 15,340 km3 is believed to be exploitable.

Nubian Sandstone Aquifer System (NSAS)

Nubian Sandstone Aquifer System (NSAS)

Cooperation over the NSAS dates back at least to 1989 when Egypt and Libya established among themselves a Joint Authority (JA) for the Study and Development of the Nubian Sandstone Aquifer System. In 1992, the two States adopted the agreement “Constitution of the Joint Authority for the Study and Development of the Nubian Sandstone Aquifer Waters” (see Annex 7 in the GEF Project Document).  Sudan joined the collaboration in 1996 and Chad officially affiliated in 1999.   This agreement is one of the few agreements worldwide over a transboundary aquifer. While the number of identified transboundary aquifers globally exceeds 315 (IGRAC 2012), only four have an interstate agreement. Besides the NSAS, there are: the agreement on the Genevese Aquifer (French, English), the Ministerial declarations on the North Western Sahara Aquifer System, and the agreement on the Guarani Aquifer (Portuguese, Spanish, English). It is also relevant to mention the 2009 memorandum of agreement and road map adopted by the States of the Iullemeden aquifer system (Niger, Nigeria and Mali), however little progress has been made on this effort so far.

The agreement on the NSAS, as its name indicates, is an agreement creating the Joint Authority (JA), which is intended to serve as a joint institution/commission for the management of the shared aquifer. The agreement provides the basic rules for its functioning, and its responsibilities are quite wide and large. For instance, the JA can, conduct studies on the Nubian aquifer, is entitled to develop programs and plans for the utilization of water, and can propose and execute a common policy for the development and utilization of the water resources of the aquifer. The JA can also ration the consumption of water from the Nubian Sandstone Aquifer in the member countries and, therefore, holds real management responsibilities. The agreement is, thus, more an institutional agreement than merely a water management one.

The first project (1998-2002) on the Nubian aquifer, the “Regional Strategy for the Utilization of the Nubian Sandstone Aquifer System” executed by the Center for Environment and Development for the Arab Region and Europe (CEDARE), resulted in an improved scientific knowledge of the aquifer system and the consideration of the socio-economic conditions in the riparian States. During this project, the JA acted as the Project Steering Committee and was relatively active holding yearly meetings.

In 2006, the four States engaged in a second project – Formulation of an Action Programme for the Integrated Management of the Shared Nubian Aquifer – funded by the Global Environment Facility (GEF) and executed by the International Atomic Energy Agency, with a support from UNESCO (see project website). The overall objective of the project is to establish a rational and equitable management of the NSAS for sustainable socio-economic development and the protection of biodiversity and land resources. To achieve this goal, national multidisciplinary teams in the riparian States were constituted and, with the support of a team of international experts, prepared the Shared Aquifer Diagnostic Analysis (SADA) to jointly identify, understand, and reach agreement on the priority issues, threats, and root causes of the NSAS. The SADA identifies the following key transboundary concerns:

  1. Declining water levels related to abstractions
  2. Damage or loss of the ecosystem and biodiversity that are linked to the aquifer at oases
  3. Water quality deterioration from pollution (industry, agriculture and urban)

Following adoption of the SADA, national team of experts identified the common NSAS vision and key water resource objectives as well as the ecosystems linked and dependent on the aquifer.  Finally, a common set of management actions addressing the key NSAS transboundary issues were prepared, which lead to the recently-signed SAP.  The adopted vision for the NSAS under the SAP is:

“To assure rational and equitable management of the NSAS for sustainable socio-economic development and the protection of biodiversity and land resources whilst ensuring no detrimental effects on the shared aquifer countries.”

The signing of the SAP document at the ministerial level represents an important step forward in building the cooperation process among the NSAS countries. It is the common and joint commitment to the identified shared vision for the cooperative management of the NSAS by the States and the JA, as well as the commitment to implement the actions.

Convention Watch – Benin Becomes 27th Party to the UN Watercourse Convention

Friday, July 6th, 2012

Benin became the 27th Party to the 1997 UN Watercourses Convention when it submitted its instrument of accession to the Secretary-General of the United Nations on 5 July 2012. Benin is the third country to join the Convention this year following Luxembourg ratification on 8 June 2012 and Denmark accession on 30 April 2012. According to recent press reports (here), the UK will soon join their ranks. The Convention will enter into force 90 days after the 35th nation submits its instrument of ratification, accession, acceptance, or approval to the UN Secretary-General.

You can find the updated status of the Convention here. Also, the IWLP has added a “Convention Watch” news box on its homepage here.

You can find a prior post on the status of the Convention here.

The Future of Africa’s Water Security

Sunday, May 27th, 2012

Special thanks to Kavitha Pramod for co-authoring this essay

This map, published with the original MacDonald, et.al., study, depicts potential ground water resources on the African continent. Areas in blue represent the most water-abundant areas.

Not long ago, the BBC reported (here) on vast reservoirs of ground water resources underlying the African continent and the critical use that this water could have for populations now and in the future. While the so-called “discovery” of this water wealth may be questionable (see WaterWired’s Michael Campana explaining what we already knew here), the resurgence in interest in fresh water for Africa is a critical development in itself. The MacDonald, et.al., study that started this latest brouhaha can be found here.

Africa remains one of the poorest regions in the world in terms of access to fresh water resources. A recent report by UNICEF and the World Health Organization (here) indicates that approximately 300 million people in sub-Saharan Africa are without access to safe and clean drinking water. Of the countries reported to have less than fifty-percent coverage in water supply, almost all are located in sub-Saharan Africa. Additionally, only some thirty-percent of the population in sub-Saharan Africa is blessed with improved sanitation coverage, making the region one of the most underserved in the world.

In the year 2000, the world’s major leaders came together at the United Nations Headquarters in New York to adopt the United Nations Millennium Declaration (here). The Declaration was intended to create a global partnership aimed at reducing extreme poverty throughout the world. Targets, known as the Millennium Development Goals, were set to achieve the Declaration’s aim, with a deadline for the year 2015 (see here). In sub-Saharan Africa, where some of the worst poverty and water scarcity conditions exist, only nineteen of the fifty existing countries are expected to meet the Goals’ drinking water targets by the year 2015.

This UNECA chart compares water availability for countries throughout Africa from 1990 to 2025. By 2025, all countries in the region are expected to be in a state of water vulnerability, with most being in states of water stress or water scarcity.

Of further concern for the sub-Saharan African region is that according to the United Nations, over the next ten to fifteen years, as populations continue to expand, per capita water supplies will diminish significantly to the point where available supplies will no longer be able to meet the water needs of many of the region’s nations.

Given the troubled state of Africa’s water circumstances, a renewed focus on the significant sources of ground water underlying much of the continent comes at a very important time. In addition to concentrating attention on a dire situation, it provides opportunities for the region and the global community to explore means of overcoming the water challenges facing Africa and for sustainably developing and managing these underground resources. One of these opportunities is directly tied to the fact that many of Africa’s aquifers are transboundary, underlying two or more nations. The Nubian Sandstone Aquifer System, for example, is situated below Chad, Egypt, Libya, and Sudan; the Iullemeden Aquifer System underlays Mali, Niger and Nigeria; and the Baggara Basin aquifer is underneath Central African Republic, Sudan, and South Sudan, including the parched and war-ravaged Darfur region.

As the availability of fresh water decreases across the continent, competition and tensions over transboundary resources are likely to rise. To date, however, none of the transboundary aquifer countries in Africa have entered into an aquifer sharing or management arrangement. The only transboundary aquifer-related arrangements on the continent are two rudimentary consultative and data-sharing agreements formulated for the Nubian Sandstone and Northwestern Sahara aquifers in North Africa (you can find the texts for these arrangements here and here).

More than seventy aquifers and aquifer systems in Africa have been identified as “transboundary” by the United Nations’ International Groundwater Resources Assessment Center. IGRAC’s Transboundary Aquifers of the World 2012 map is available here.

An attempt also was made to develop an extensive consultative and management regime for the Iullemeden Aquifer System. In 2009, the overlying nations (Mali, Niger and Nigeria) signed the Declaration of Bamako (here) and an accompanying Memorandum of Understanding for the establishment of a consultative mechanism for the management of the Iullemeden Aquifer System (here) whose goals were to: (1) identifying transboundary risks and uncertainties, (2) formulate joint risk mitigation and sharing policies, and (3) facilitate the sustainable development of the Iullemeden Aquifer System’s resources. While the arrangement contained rather progressive and thoughtful approaches and mechanisms, the effort appear to have stalled.

Given the levels of water stress and scarcity that African countries are currently experiencing, and which are predicted to increase rapidly, the need for action is immediate. Although ground water resources in Africa are vast and provide great opportunities for overcoming the continent’s water scarcity problems, the lack of information, technical capacity, adequate funding, and cooperation prevents many African nations from overcoming the water challenges facing them. Accordingly, it is crucial that all of Africa – from the national level to the most local community – develop programs that will expand the exploration of water resources, push for data-generation and sharing, and encourage cross-border cooperative and sustainable management initiatives. It is also critical that the United Nations, as well as the developed world, offer their assistance for this worthwhile effort.

The mere discovery of a new source of fresh water underlying one of another nation will not ensure it a future free of water scarcity. Only by cooperating and carefully and sustainably managing such resources will Africa’s nations be able to secure the much needed water for its communities and environment.