Archive for the ‘International Water Law’ 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.

 

The Greening of Water Law: Why and How We should Modernize Legislation to Account for the Environment

Monday, May 22nd, 2017

The following essay by Ariella D’Andrea is an introduction to the training course on “The Greening of Water Law: Implementing environment-friendly principles in contemporary water law,” which she designed and coordinated. The course is available on UN Environment’s InforMEA E-Learning Platform. Ms D’Andrea is a member of the Executive Committee of the International Association for Water Law (AIDA). She can be reached at ariella.dandrea [at] gmail.com

 

In the past century, water management focused primarily on developing the resource to satisfy human needs: irrigation, hydropower, industrial and municipal uses, and so on. National governments around the world put in place a broad range of infrastructure and mechanisms for the abstraction and use of water resources to implement their development policies.

This display of engineering skills for dam construction, diversion of watercourses, groundwater pumping and, more recently, desalination has not always been mindful of environmental concerns that may result from technological advances. More often than not, efficient water abstraction was the main objective with little thought given to the long-term availability or quality maintenance of the resource. This approach was based on the conception of water as a renewable rather than finite resource. Although water quantity and quality regenerate through the hydrologic cycle, we now know that the amount of water on Earth is constant. Of this water, only about 2.5% is freshwater and, of that volume, around 0.3% is readily accessible being found in rivers and lakes; the rest is stored in glaciers and ice caps or in aquifers underground.

All life forms need clean and sufficient water to thrive, which is produced by healthy ecosystems.  Time has shown that inconsiderate economic development may critically affect the rate at which freshwater is generated in the natural environment, thus compromising the crucial ecosystem-support function of water resources in a vicious cycle of progressive water salinization and biodiversity loss, at least in a local context.

Inspired by traditional knowledge, some countries have declared the environment or specific waterbodies as right holders. In Ecuador, Mother Nature or Pacha Mama was granted the right to the conservation of water resources (Water Resources Law 2014 based on the Constitution of 2008); New Zealand recently granted legal personality to the Whanganui River, with rights and duties as well a legal representative (Te Awa Tupua (Whanganui River Claims Settlement) Act 2017); shortly after, the forests and waterbodies of the Indian State of Uttarakhand, including the Ganga and Yamuna Rivers, were declared as legal entity by the High Court of Uttarakhand (Uttarakhand High Court Decision 2017); at this very moment, French Polynesia is considering the possibility of granting legal personality not only to its rivers but also to its ocean Te moana nui a Hiva (Parliamentary Question to the Minister of the Environment, 28 March 2017).

Greening-course2Clearly, a balance must be struck between people’s needs and those of the natural environment. Moreover, action must be taken to reverse the degradation of waterbodies, knowing that the status quo ante cannot always be restored. UN member States recently committed, under Sustainable Development Goal 6, to “ensure availability and sustainable management of water and sanitation for all”, including by implementing integrated water resources management and by protecting and restoring water-related ecosystems.

Water law can support this commitment by guiding water use and management towards sustainability. To do this, it must become ‘greener’. In practice, the water law ‘greening’ is the process by which legal provisions regulating the use of water resources progressively incorporate environmental concerns. The greening of international treaties, regional agreements and domestic legislation on water resources may be carried out by: freshwater treaty negotiators as they bring environmental principles and concerns to bear on negotiations over shared freshwater bodies; domestic legislatures embedding environmental provisions into laws and regulations, and by judges interpreting legal provisions in light of environmental law.

Legislation reflects the society it regulates; therefore, early domestic water laws generally supported the ‘development craze’ and focused on abstraction and use of water resources rather than protection and conservation. Similarly, early international water law, including bi- or multilateral agreements on shared waters, focused on allocation of those waters between riparian countries rather than preservation.

Environmental concerns started making their way in both domestic and international water law in the second half of the 20th century and, more conspicuously, after the Rio Earth Summit in 1992 when the greening wave acquired momentum and depth. It was during that decade that two major treaties on transboundary waters were adopted: the 1992 UNECE Water Convention, and the 1997 UN Watercourses Convention.

The interdependence of water and nature is now widely recognized, not only in the scientific world but also by policy- and lawmakers. The environment is increasingly being recognized as a water user, competing with the different human uses of the resource, and a wide range of solutions are emerging to ensure that environmental concerns are duly accounted for in water law.

‘Green’ provisions often aim at controlling effluent discharge to minimize pollution of natural waterbodies, or more innovatively promote wastewater reuse thanks to advances in water treatment technology. They also aim at establishing an ecological flow of water in rivers to allow aquatic life or a water reserve for human and environmental benefit. An environmental impact assessment may be required before developing infrastructure that might affect water resources. Certain standards may be established to protect aquatic biodiversity (e.g. migratory fish passage in dams), prevent soil erosion (e.g. reforestation of river banks) or prevent groundwater pollution (e.g. protection of recharge areas). Legislation may also recognize ecosystem services, such as the provision of freshwater or the regulation of floods, and establish payment or compensation schemes for those who maintain healthy ecosystems.

The most progressive examples of ‘green’ provisions are generally found in domestic legislation, with international water law often lagging behind despite the ‘green’ potential of its main guiding principles – equitable and reasonable utilization, no significant harm and ecosystem protection. A vast range of multilateral environmental agreements adopted during the last 50 years, such as the 1997 Ramsar Convention on Wetlands and the 1992 Convention on Biological Diversity, may effectively support the process of water law greening, both at domestic and international level, by prompting normative reform and orientating judicial interpretation towards environmentally-sound application of water use principles.

Funded by UN Environment (formerly UNEP), the online training course on “The Greening of Water Law: Implementing environment-friendly principles in contemporary water law” was developed by the International Association for Water Law (AIDA) with the contribution of 10 authors and 6 reviewers, as a guide for policy makers, technocrats and experts. The course focuses on the implementation of international principles for sustainable water management, stemming from both binding and non-binding instruments, and on their implementation in domestic legislation, transboundary agreements and related court/arbitration decisions.

The program is accessible free-of-charge from the INFORMEA website. It involves a series of slides and readings, including a brief and group exercises presented as a manual for lecturers, and requires 5 days to complete considering one module per day. A condensed version of the training course will be presented in a Special Session at the XVI World Water Congress of the International Water Resources Association (IWRA) that will be held in Cancun, Mexico at the end of this month.

Further reading:

Burchi S., Balancing development and environmental conservation and protection of the water resource base – the “greening” of water laws, FAO Legal Paper Online #66, June 2007

Eckstein G., et.al., The Greening of Water Law: Managing Freshwater Resources for People and the Environment, UNEP, 2010

 

Transboundary Offshore Aquifers: A Search for a Governance Regime

Monday, June 27th, 2016

The following essay by Renee Martin-Nagle is a summary of her recently published article entitled: Transboundary Offshore Aquifers: A Search for a Governance Regime, which appears in Vol. 1.2, 2016, pp. 1-79, of Brill Research Perspectives in International Water Law. Ms. Martin-Nagle is a PhD Researcher at the University of Strathclyde and a Visiting Scholar at the Environmental Law Institute. She can reached at renee.martinnagle [at] gmail.com.

In December 2013 an article appeared in Nature magazine describing aquifers lying under continental shelves around the world and containing fresh to slightly brackish water.  Entitled ‘Offshore Fresh Groundwater Reserves as a Global Phenomenon’, the article summarized scientific studies since the 1970s and suggested that the volume of water held in these offshore reserves could amount to twice the volume of groundwater withdrawn from aquifers globally since 1900.  Within days, the global press seized on the article and gleefully announced that the global water crisis had been solved.  Intrigued by the possibilities, I determined to understand the scientific support for such claims as well as the potential they held for supplementing existing freshwater supplies.  Moreover, I began to wonder what governance regime might apply in the likely event that one or more of these offshore aquifers straddled an international border  Since the topic of sharing transboundary offshore aquifers has not been addressed previously, there was no template to follow.  However, logic suggested that a governance regime for the these unique aquifers should be influenced by at least three current regimes: legal principles embodied in the UN Convention on the Law of the Sea (‘UNCLOS’), legal principles applicable to transboundary offshore hydrocarbon development, and legal principles that have evolved for transboundary land-based freshwater resources.

Global_Sumarine_Aquifers1My article begins with an explanation of the origins of offshore aquifers.  Not surprisingly, they were formed in the distant past, when meteoric and geological conditions were different than they are today.  During the last glacial maximum between 26,500 and 19,000 years ago, sea levels were much lower than they are today.  At that time the current continental shelves were actually part of the continental coastlines and were, therefore, exposed to rain and other meteoric conditions.  Over thousands of years, freshwater became entrapped between confining layers that were generated by the same natural processes that produced other land-based confined aquifers.  As glaciers melted and sea levels rose, the confining layers protected the now-offshore freshwater aquifers from saltwater intrusion.

With this background, the article proceeds to analyze three legal regimes in search of guidance on how these resources might be governed in transboundary circumstances.  It begins by looking at the UN Convention on the Continental Shelf (the precursor to UNCLOS) and its equidistant method for apportioning shared natural maritime resources among nations with adjacent and opposite coasts.  It then considers the assessment of the International Court of Justice in the North Sea Cases, which rejected the equidistant approach, urged nations to seek equitable solutions based on locally-specific facts and circumstances, and referenced the unity of a deposit. UNCLOS followed the ICJ guidance in advising nations to seek equitable solutions.

Global_Sumarine_Aquifers2Following the North Sea Cases, the oil and gas industry quickly filled the void by developing its own legal mechanism, which is the second regime assessed in my article.  Under that regime, and in harmony with the ICJ’s suggestion to preserve the unity of deposits, the industry utilized a system called unitization where parties sharing a resource appoint a single operator to exploit that reserve, with their respective shares being pre-determined in the applicable agreement.  The concept of unitization later evolved into joint development agreements where nations agreed on an operator for both exploration and exploitation of the resource.

The third regime considered in my study is the body of law that has developed for land-based groundwater resources.  While there are only four ratified treaties and several sets of guidance that address transboundary aquifers, certain concepts for land-based water have evolved to the point of representing accepted principles of customary international law.  Principles such as reasonable and equitable use, no significant harm, cooperation, and sharing of information have been enshrined in treaties for surface water and have also influenced principles for sharing hydrocarbon resources.

After examining these three bodies of law, I propose suggestions for a governance regime for transboundary offshore aquifers that incorporates the best aspects of each of them while still bearing in mind practical aspects of resource development.  Whether this regime will be needed in the near future remains to be seen. Nonetheless, by offering this analysis, I hope to begin the conversation and lay the groundwork for the time when offshore aquifers may be used to support existing freshwater supplies.

The entire article is available here.

 

Transboundary Water Cooperation in Europe – A Successful Multidimensional Regime?

Monday, May 16th, 2016

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

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

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

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

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

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

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

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

The entire article is available here.

The Kishenganga Awards and their Contributions to International Water Law

Wednesday, August 5th, 2015

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

 

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

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

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

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

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

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

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

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

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

Online Presentations on International Water Law and Policy

Thursday, June 18th, 2015

By Gabriel Eckstein

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

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

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

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

Transboundary Aquifers: An Interdisciplinary Conversation

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

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

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

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

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

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

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

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

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

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

 

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

Thursday, February 26th, 2015

By Gabriel Eckstein

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

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

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

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

State of Palestine Accedes to UN Watercourses Convention

Wednesday, January 7th, 2015
Jordan River Basin

Jordan River Basin

By Gabriel Eckstein

 

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

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

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

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