Archive for the ‘Middle East’ Category

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

Monday, August 31st, 2015

By Gabriel Eckstein

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

Saq-Ram Aquifer Map

Saq-Ram Aquifer

 

The Aquifer

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

Use of the Aquifer’s Water

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

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

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

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

The Agreement

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

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

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

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

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

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

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

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

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

Conclusion

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

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.

Israeli-Palestinian Agreement on Water within Sight

Wednesday, January 8th, 2014

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

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

Failings of the Oslo Process

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

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

Shared Water Resources of Israel, Palestine and Jordan

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

Breaking Away from the Oslo Model for Water

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

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

The Structure of the FoEME Proposal

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

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

 

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

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

 

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

Water Security, National Security and Israel’s Separation Wall: The Case of Battir

Wednesday, March 6th, 2013

The following post is by Elana Katz-Mink. Ms. Katz-Mink has an M.A. in Environmental Studies and Water Management from Ben Gurion University and is a J.D. candidate at American University Washington College of Law. She can be reached at ekatzmink [at] gmail.com.

Battir agricultural terraces. Photo courtesy of The Advocacy Project.

Only a few miles from Jerusalem, Bethlehem, and the Green Line, residents of the Palestinian village of Battir practice an ancient agricultural water-use technique dating back to the Roman Period. Agricultural terraces, which were developed to take advantage of natural mountain springs, cover 2,000 hectares around the village where residents cultivate produce for their livelihoods and sustenance.

Over the centuries, the terraces have increased the land’s fertility, preserving the area’s agricultural heritage and environmental integrity (see NY Daily News article and FoEME Report). Israel is currently planning to build the separation wall on the edge of Battir, separating Palestinian farmers from their fields.  If constructed, the wall will severely imperil the hydrology and ecology of the area (see Report of the Israel Nature and Parks Authority [in Hebrew]).  This type of harm is not novel or unique.  In virtually any location around the world, the isolation and fragmentation of landscape can have deleterious effects on the diversity and abundance of flora and fauna.  It can also be disastrous for a region’s water security because a sustained, natural flora presence can help maintain both the water table balance and groundwater quality.  In addition, a wall can block the natural flow of floodwater from its usual drainage-route resulting in flooding, soil erosion, and habitat destruction.

These grave consequences are further compounded by the very real effects the wall can have on human residents of the area. For example, this past winter in the town of Qalqilya, a Palestinian city in the West Bank, floodwater mixed with sewage as a result of the separation wall and inundated people’s homes and fields (see Ma’an News Agency story).  While events like these harm Palestinian residents on their side of the wall, they have serious consequences for Israelis as well.  Incidents like Qalqilya pollute the groundwater on which both Palestinians and Israelis rely for domestic, industrial, and environmental uses (see FoEME Report: A Sleeping Time Bomb).

In 2006 in the Palestinian village of Wadi Fuqin, Friends of the Earth Middle East (FoEME) marshaled evidence showing that construction of the wall would cause hydrological and ecological destruction.  Additionally, FoEME helped to orchestrate a joint effort by Wadi Fuqin villagers and the neighboring Jewish community of Tzur Hadassah that has temporarily stopped the wall’s construction in this area (see FoEME case study and JTA story).

Battir, unlike Wadi Fuqin, does not have a clear Israeli sister-city lying across the Green Line to protest the wall’s construction on their behalf; however, Battir may have a branch of the Israeli government in its corner.  In August 2012, the Israel Nature and Parks Authority published a report condemning construction of the separation wall in Battir because of the risk it posed to the ecological and hydrological integrity of the area (see Report of the Israel Nature and Parks Authority [in Hebrew]).  In a water-starved region, such a risk may prove extremely persuasive as Israel is forced to confront how its actions could affect one of its biggest national security concerns: long-term access to and supply of fresh water.  While Israel has typically recognized its national security as equivalent to its military security, the risk the wall creates could threaten the security of the nation in terms of its fresh water supplies, resources on which both Israel and the Palestinian Authority depend.

In 2007, Battir both brought suit in the Israeli Supreme Court (ISC) and requested Israel’s Finance Ministry to consider rerouting the wall.  The Finance Ministry has not yet ruled, but construction was halted in fall 2012 by the ISC when it ordered cessation and a timely response by the Ministry to the allegations of the Battir residents.  Generally, the ISC has held that the wall is a legitimate security need for Israel, despite the International Court of Justice’s advisory opinion finding the wall illegal under international law.  In a few rare instances, though, while maintaining the legitimacy of the wall, the ISC has ordered the route be changed or construction stopped and/or dismantled on grounds that the wall’s route would not fulfill its purposed security purposes (e.g., Beit Sourk, Bilin, Wadi Fuqin).  Nevertheless, these decisions are the exception, and the ISC consistently has accorded more weight to the Israeli Defense Ministry’s expressed military security concerns.

On December 13th, 2012, the ISC issued an interim decision ordering the Israeli Defense Ministry to submit plans for an alternate route for the wall in the Battir area within ninety days, necessitating consideration of the environmental impacts of the route.  The Israeli Defense Ministry has proposed a fence, rather than a stone wall, as a compromise that it says will reduce damage to the landscape.  Battir and conservation experts maintain that a fence will cause the same harm as a stone wall (see articles in Haaretz [in Hebrew] and the Environment And Climate In The Middle East blog).  The ISC has yet to issue a final decision.  While the interim decision is only a temporary win for the residents of Battir, it marks the latest case demonstrating the exception to the military security rule.  Perhaps, this decision signals a shift from the ISC’s military security rule to the consideration of water and environmental security concerns.  The final decision will be extremely significant for Battir, and potentially for the jurisprudence of national security.  Regardless of the final outcome, the interim decision mandating consideration of ecological impacts is an achievement in the continued struggle for recognition of water and environmental security as an integral part of national security.

 

Post Script (March 29, 2013)

Metal_FenceA metal fence was proposed as a compromise by the Israeli Ministry of Defense, but has not yet been accepted by the Battir residents, environmentalists, or the ISC.  Even if a fence were accepted it would not solve most of the ecological or hydrological issues that exist with a cement barrier. Often the structure of the fences that separate the West Bank and Israel entail much destruction in the surrounding area during the construction phase (uprooting of flora and fauna that help to clean water as it percolates to the water table).  In addition, a large ditch is usually dug on the West Bank side of the fence (the source of water flows) that would prevent water from reaching the sea.  Lastly, the road and fencing would still prevent the migration of flora and fauna in the area.

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.

 

What Does Turkey’s Contemplated European Union “Freeze” Have to do with Water?

Thursday, February 2nd, 2012

The following post is by Rhett Larson, Visiting Assistant Professor of Law at Arizona State University Sandra Day O’Connor College of Law. Professor Larson specializes on environmental and natural resource law and, in particular, on domestic and international water law and policy. Professor Larson offers the following post as part of his ongoing research.

Turkey plays an increasingly important global role as a cultural and economic bridge between Western nations and Muslim-majority nations. Its role has the potential to grow as it has been in talks to accede to the European Union (“EU”) since 2005. However, Reuters recently reported that Turkish officials have stated that Turkey would “freeze” relations with the EU if the EU were to grant its presidency to Cyprus (see Reuter’s article here). Cyprus is scheduled to take on the six-month rotating EU presidency in July 2012.

Turkey’s opposition to Cyprus’ EU presidency stems from several factors, including the potential conflict over Cyprus’s off-shore oil and gas drilling by Cyprus that is opposed by Turkey. But most fundamentally, Turkey is the only nation that currently recognizes the independent status of Northern Cyprus, with its majority ethnic Turk population, as compared to the rest of the majority ethnic Greek government of Cyprus. Turkey’s 1974 intervention (or invasion, depending on your perspective) in Northern Cyprus, Turkey’s recognition of Northern Cyprus as an independent states, and the EU’s blockade of Northern Cyprus have been the more stubborn obstacles to Turkey’s accession to the EU.

What does all of this have to do with water? The island of Cyprus has been suffering from a prolonged drought, impacting both agricultural and copper production, and further straining relations between North and South (see BBC article here).

Turkey has discussed construction of additional dams and reservoir capacity on the already contentious Euphrates River (which Turkey shares with co-riparians Syria and Iraq, as well as ethnic Kurds in all three countries, with each group suffering from drought as well). The proposed additional storage capacity on the Euphrates would not go to provide water to Turkey or its Euphrates co-riparians, but instead would supply Northern Cyprus via an undersea pipeline (see Global Post article here, and Green Prophet article here).

According to the Famagusta Gazette, Turkey began construction of the new reservoir and the undersea pipeline in March of 2011. The Turkish government contemplates 4 stages of construction for the project, with a projected completion date in March of 2014 (see article here).

Interestingly, this is not Turkey’s first foray into bulk water transports via pipeline into politically-contested territories. Turkey has previously proposed a “peace pipeline” to provide water to states in the Middle East, including Israel (see prior IWLP post on this topic here).This type of bulk water transport has very few precedents in international water policy. Singapore has, since the 1920s, purchased water in bulk from Malaysia (see here). Bulk water transport has been contemplated between the Canada and arid regions of the United States. However, environmental concerns over interbasin transfers and controversy over international trade and investment law, including NAFTA Chapter 11 protection for investors in bulk water transport projects, ended the contemplated transfer.

Turkey’s storage and pipeline project for the benefit of Turkish Cypriots has several implications for international water law and the hydropolitics of the region. First, other than the issue of Northern Cyprus, one of the other main obstacles to Turkey’s accession to the EU has been its relations with Syria and Iraq with respect to the Euphrates, and its treatment of ethnic Kurds within the Euphrates basin (see BBC article here).

Turkey’s relations with its co-riparians would arguably not comply with the EU Water Framework Directive (“WFD”). The WFD requires that EU member states work with co-riparian states in projects on transboundary rivers, and that requirement is not limited to coordination only with organized states, but also arguably with non-state actors, such as the Kurds. Additional storage on the Euphrates and an international bulk exportation of water from the basin will only further exacerbate relations between Turkey, Iraq, and Kurdistan, and aggravate an already imposing obstacle to Turkey’s accession to the EU.

Turkey’s failure to coordinate with its Euphrates co-riparians with regards to this project raises questions of international law and the widely accepted customary international law principle of “good neighborliness” requiring cooperation and information sharing for projects impacting shared fresh water resources. While there is no current treaty framework governing the Euphrates, the Turkish/Syrian Mixed Economic Commission and the Trilateral Water Institute/Joint Technical Committee can provide a foundation upon which to build a collaborative institution facilitating information sharing and cooperation between Euphrates riparians. Participation of Iraqi, Syrian, and Kurdish riparians in any bulk water export would at least avoid the legal and diplomatic problems arising from the contemplated storage and pipeline project for Northern Cyprus.

Furthermore, Turkey’s contemplated pipeline project raises questions of international trade in bulk water, not dissimilar to the issues that confronted the contemplated bulk water transport from Canada to the Southwestern United States. For example, the Greek Cypriot government could throw up legal trade barriers to prevent Turkey from selling water to Northern Cyprus. Such trade barriers could run afoul of the World Trade Organization laws, such as the 1994 General Agreement on Trade and Tariffs, respecting the “equal footing” status of trade partners as compared to domestic vendors. However, the status of bulk water transported via pipeline as a “commodity” subject to WTO regulations is not settled law, and the unique relations of the Greek Cypriot government toward Turkey, as well as the dire drought conditions in Cyprus, make this case more complicated than simply discriminatory tariffs.

Turkey could avoid these issues and facilitate its accession to the EU in several ways. First, Turkey could build upon those existing river basin institutions on the Euphrates by including Iraq and Kurdish representatives in an effort to comply with the WFD in the implementation of the reservoir and pipeline project. Second, Turkey could investigate the potential cost savings and water production capacity of desalination in Northern Cyprus as compared to the reservoir and pipeline project; if cost-feasible, desalination could provide a less controversial alternative to addressing the drought in Northern Cyprus. Third, while Turkey is unlikely to withdraw support in the near future for a Turkish Cypriot state, Turkey could recognize that it would have a great ability to address the interests of Turkish Cypriots as a member of the EU than under the status quo. Turkey’s efforts to alleviate the drought in Cyprus on a nondiscriminatory basis for the benefit of all Cyprus, whether through desalination or the reservoir/pipeline project, could be viewed as an olive branch to Greek Cypriot government. Such a diplomatic gesture could facilitate Turkey joining the EU despite support for an independent Northern Cyprus.

Turkey’s contemplated “freeze” of its relations with the EU fray what had been a strengthening tie between East and West. How Turkey resolves the interrelated water issues toward its Euphrates co-riparians as well as toward Cyprus could go a long way in either restoring or further weakening its role as an important cultural and economic bridge.

Libya and Water as a Weapon

Thursday, September 15th, 2011

The following post is by Rhett Larson, Visiting Assistant Professor of Law at Arizona State University Sandra Day O’Connor College of Law. Professor Larson specializes on environmental and natural resource law and, in particular, on domestic and international water law and policy. Professor Larson offers the following post as part of his ongoing research.

 

The conflict in Libya raises a number of important international water law and policy questions, including the legal implications of using water supply and infrastructure as a weapon, and the role of the international community in guiding domestic water policy in transition or post-conflict governments with control of a major international waterbody. A recent article in The National (here) illustrated these issues and reported that Gaddafi’s forces had sabotaged water supply facilities, attacked water supply personnel working with the transition Libyan government, and limited access to strategic water supply locations thereby aggravating the ongoing Libyan water crisis. There were even rumors that the former regime may have even tried to poison some of the country’s fresh water resources.

In particular, the article focused on the fate of the Nubian Sandstone Aquifer System (NSAS) in the Libyan Conflict. The NSAS is the largest fossil aquifer system in the world, underlying the territory of Libya, Chad, Egypt, and Sudan. It is also the source for Gaddafi’s “Great Man-Made River” (“GMMR”), an incredible engineering feat that provides around 6.5 million cubic meters of water daily to coastal cities in Libya and drives Libya’s economy (see this BBC article on the GMMR).

The Libyan conflict brought to the fore possible violations of international law through the use of water supplies and infrastructure as a weapon (see Protocols I and II to the Geneva Convention relating to the Protection of Victims of International Armed Conflicts here and here). Assuming the rumors reported by the National are true, Gaddafi’s forces may have violated Geneva Convention prohibitions against attacking drinking water installations indispensable to the civilian population under Article 54 of Protocol I and Article 14 of Protocol II to the Geneva Convention. Libya acceded to both instruments in 1978. Gaddafi forces thus could be held as war criminals for their actions relating to attacks on water installations.

However, The National also reported that NATO airstrikes targeted GMMR installations where Gaddafi forces had hidden military assets along the pipeline. Most NATO countries have similarly acceded to or ratified the Geneva Convention protocols. The NATO attacks, according to The National, occurred at storage sites for unused pipeline, and, therefore, arguably were not to water installations “indispensable to the civilian population.” Protocol I provides exceptions to the prohibition on attacks of water installation, including when those installation used only to sustain military forces (as opposed to civilian populations). Nevertheless, attacks on water installations are strictly prohibited under Protocol I where those attacks would leave a civilian population without adequate food or water, leading to starvation or mass migration.

As the National further reported, the Libyan transitional government saw the only resolution of the water crisis being an attack to retake strategic water installations held by Gaddafi loyalists. However, that action to restore water supply carried with it risks of violating Geneva Convention proscriptions against attacks on water installations that may be supporting a civilian population. The Libyan transitional government and its partners were left with deciding how to take control of water supply and infrastructure in Libya and reverse the effects of Gaddafi forces’ violations of the Geneva Convention, without violating those Convention provisions themselves.

In the long term, the legal issues that will follow this conflict will relate to how the NSAS will be developed and its waters allocated to the nations overlying the aquifer. The law of transboundary aquifers, like the NSAS, is still developing (in the form of the draft International Law Commission’s “Articles on the Law of Transboundary Aquifers”).

Currently, international law in this area is still undeveloped and Libya remains the only country that has invested efforts to develop the NSAS to any significant extent. However, there is an effort to develop a regional strategy for using and protecting the NSAS, including an ongoing monitoring and data-sharing initiative involving all four overlying nations (see here).

It’s difficult to tell what impact a regime change (should it prove durable) would have on relations in the region as they relate to the NSAS. But just as the relationships on the Nile have changed with the ouster of Mubarak and the South Sudan referendum (see prior post on the The Hydro-Challenges of the New State of South Sudan in the Nile Basin), the outcome of the Libyan conflict could have major impacts on one of the world’s great groundwater resources.

Accord or Discord on the Nile? – Part II

Monday, July 26th, 2010

Before giving my assessment of the Agreement on the Nile River Basin Cooperative Framework (CFA), a brief caveat. As you will see from the copy I procured, the document has some formatting defects (e.g., different font sizes, a few color changes, non-consecutive numbering, variations in indentation spaces, etc.). While I (and my sources) cannot vouch that this is the final edition of the agreement that was opened for signature on 14 may 2010, it appears to be a near final version. Accordingly, you should consider my comments with a grain of salt.

Overall, the CFA appears to be in line with some of the more comprehensive transboundary waters agreements, spelling out in some detail the legal bases upon which the region’s hydro-relationship is to be forged and articulating the rights and obligations of the parties. To that extent, it is a valiant and meaningful effort at achieving a functional and worthwhile accord. Those of you who would prefer hard numbers and provisions on allocations, though, may be disappointed – the agreement is fundamentally about principles.

The most noteworthy aspect of the agreement is Part III, which creates the Nile River Basin Commission. The significance of this section is that it establishes a mechanism for facilitating cooperation and preventing disputes, one of the core objectives of the CFA. Moreover, and possibly most important, it creates space for discussing sensitive issues outside the political realm thereby minimizing the hyperbole and gridlock that often plagues international politics. And the Nile River Basin is no stranger to political hyperbole and gridlock …

Of course, the creation of a supranational institutional apparatus will not guarantee harmony on the Nile. Its success will greatly depend on whether the parties to the CFA implement the provisions for its creation and operation, as well as the degree to which they place their trust in it. Nevertheless, the design of the institution is somewhat similar to that of the Organization for the Development of the Senegal River, known by its French acronym OMVS (Organisation pour la Mise en Valeur du Fleuve Sénégal), a rather successful transboundary water management mechanism. Indeed, if the countries of the Nile Basin actually follow the OMVS paradigm for cooperation, there could be a very bright future for the region.

Other sections of the CFA that deserve mention include Part II and III, which articulate the legal principles underpinning the agreement and the relationships of the riparians as they pertain to the management of the Nile River. While the extent to which these doctrines are defined or explained varies in the agreement, having an established core set of values and rules bolsters the likelihood of the CFA’s success.

Of the principles presented, most are well recognized under international water law, including those of cooperation, equitable and reasonable utilization, no significant harm, and exchange of data and information. The CFA, however, proffers a number of legal doctrines that are not in the mainstream. For example, while the notion of subsidiarity often appears in other contexts, it has rarely been invoked explicitly in the framework of transboundary water management and regulation. Article 3(3) briefly defines the principle as “development and protection of the Nile River Basin water resources [that] is planned and implemented at the lowest appropriate level.” Furthermore, Article 10(a) elaborates on this notion by emphasizing that State Parties to the CFA “shall … allow all those within a State who will or may be affected by the project in that State to participate in an appropriate way in the planning and implementation process.” Given the disparate geographies, climatic conditions, economics, and other factors that are found along the length of the Nile and its tributaries, this is a welcomed progressive addition that enhances participation and democratizes the management of the River.

Possibly the most interesting, and certainly the most controversial, provision of the CFA is contained in Article 14, which recognizes “the vital importance of water security” to each of the Nile’s riparians and acknowledges the achievement of such security through “the cooperation management and development of waters of the Nile River System.” Under Article 2(f), “water security” is defined as “the right of all Nile Basin States to reliable access to and use of the Nile River system for health, agriculture, livelihoods, production and environment.” As such, it implicates a legal right, held by each of the riparians, to an amount of water that is adequate to fulfill the needs of all of these sectors. Read in isolation, such a right might seem quite reasonable, possibly even noble. However, given the degree of water scarcity that is typically of the region, this ideal must recede in the face of reality. What remains is an aspirational goal that must be balanced against the availability of water in the watercourse. Certainly, Article 14(a) creates a relatively lose obligation that requires Nile Basin States “to work together to ensure that all states achieve and sustain water security.” That provisions, though, does not impose individual liability or dictate reductions of water withdrawals in relation to the achievement of this goal. That possibility was left to Article 14(b).

As might be imagined, Egypt and Sudan objected to such a mechanism. As originally drafted, Article 14(b) had Nile Basins States agreeing “not to significantly affect the water security of any other Nile Basin State.” If implemented, this provision might have been used to find states individually responsible for its violation and, thereby, affect those states’ withdrawals. In sharp contrast, Egypt proposed (with Sudan as its lone supporter) that the Nile’s riparians be bound “not to adversely affect the water security and current uses and rights of any other Nile Basin State.” In other words, Egypt sought to modify the notion of water security in relation to states’ current uses and withdrawals, certainly in relation to its own historical claims [see my prior posting on this issue].

In a surprising move, the members of the Nile Basin Initiative – the partnership composed of the nine Nile riparians that drafted the CFA – decided to move ahead with the CFA minus Article 14(b). In its stead, they put a placeholder indicating that “the issue on the Article 14(b) be annexed and resolved by the Nile River Basin Commission within six months of its establishment.” This is rather an amazing procedure given the importance of the issue for all of the Nile’s riparians, especially for Egypt and Sudan, and because it implicates that the latter two countries would join the accord in order to revisit the dispute. If it wasn’t for the two lower riparians’ subsequent refusal to sign the agreement and their rather strong language in objecting to its implementation by the river’s upper riparians, you might think that peace had reigned over this troubled region. Still, recent reports (e.g., here and here) suggest that the two dissenters are willing to continue negotiating over the provision and the agreement in general. Hence, hope remains.

Ultimately, though, if it wasn’t for the encouragement and support (including financial) by international institutions and western nations, it is unlikely that the initiative would have progressed this far. The United States, Europe, the World Bank and other entities must become more engaged in advancing this effort. The nations of the Nile River have made considerable progress in drafting the CFA. It would be a real shame if they could not finalize the accord and realize its potential. It would be an even bigger shame if the breakdown in negotiations escalated tensions in the region.

Accord or Discord on the Nile? – Part I

Monday, July 26th, 2010

Its always a good day when nations come to terms over shared fresh water resources, especially in the more parched regions of the world. Hence, it was a wonderful turn of events when various news agencies (e.g., here, here, here, here, and here) reported recently that the nations of the Nile River Basin had reached an accord over the waters of one of the most disputed rivers in the world. On 14 May 2010, the countries of Ethiopia, Rwanda, Tanzania and Uganda signed the Agreement on the Nile River Basin Cooperative Framework (CFA); Kenya added its signature five days later.

To read it in the news release of the Nile Basin Initiative, a partnership created in 1999 among all of the Nile riparians minus Eritrea (which has observer status at the Initiative) to seek this very accord, readers might think that all serious controversies had been resolved by the nations that share the waters of the Nile (the five that signed the CFA plus Burundi, D.R. Congo, Egypt, Eritrea, and Sudan). Behind the veneer, though, the achievement remains hamstrung by the ages-old controversy plaguing many riverine nations on transboundary watercourses – the upstream-downstream dispute. As reported, though possibly understated, by some of the news agencies, the most downstream riparians on the Nile River are refusing to join their upstream neighbors in the agreement. Both Egypt and Sudan, who have already allocated around 90% of the Nile’s waters between themselves under a 1959 treaty (Egypt also claims a veto right over upstream hydro projects under a 1929 agreement with Britain, the region’s former colonial overseer), have raised serious objections to the new agreement.

Sudan and especially Egypt have long claimed historical rights to the waters of the Nile River based on their dozens of centuries of use and reliance on the watercourse. Their argument is grounded in the notion that older, established rights are superior to more recent claims and is akin to the prior appropriation system used in most of the western United States. Moreover, both countries are highly dependent on the Nile’s waters for maintaining their development and living standards and Egypt has raised the specter of national security as justification for defending its claims.

The difficulty with this position, at least from the perspective of the upper riparians, is that because Egypt and Sudan have made claims to the vast majority of the Nile’s waters, little is left for the peoples of the other eight nations. Moreover, international water law has tended to shun absolute claims of right and has opted for more flexible principles, such as equitable and reasonable use, which allow the possibility that nations’ rights to shared waters may be adjusted in response to changing circumstances.

Egypt, however, has also raised a more novel argument by differentiating between the Nile River and the Nile Basin. While the former carries between 90-100 billion cubic meters of water down the watercourse, the latter actually receives some 1,660 billion cubic meters of rainfall, 85 percent of which falls on the Ethiopian high plateau and the rest over the other upstream nations. Those upstream riparians, Egypt contends, should focus their efforts and claims on developing the vast volume of untapped waters that are otherwise lost to evaporation and infiltration. Notably, Egypt has offered to cooperate on and assist with such water development projects.

As it stands, five nations have signed the CFA and Burundi and DR Congo have indicated they may add their marks in the near future. Actual ratification, though, is the gold standard in international law and the CFA requires six ratifications before it can come into force. To date, none of the Nile riaprians have ratified the accord.

And, what about the accord itself?  Surprisingly, it is nowhere to be found. An extensive online search for the CFA found no direct or indirect hits (other than the news stories about the agreement). It also revealed that even the upstream nations who signed the agreement have not provided its text on their official websites. Moreover, queries to colleagues and contacts around the world, some of whom are well placed, produced nothing (well, almost – see my next IWLP blog posting).

Why would countries sign on to a new treaty, announce the event in a very public process, and then neglect to provide the text of what they agreed to? It seems a rather strange set of circumstances. Of course, this merely may be a pardonable oversight. Moreover, it may be that the text of the CFA is available elsewhere (though, none of my contacts can figure out where). Nonetheless, in this modern information age where public access is often defined by availability on the Internet (even in Africa), and where nearly every bit of text produced on Earth that is fit to print appears first on the Internet, the CFA is conspicuously absent.

The exclusion of the CFA from the public, though, is likely a function of the ongoing upstream-downstream discord that remains among the Nile’s riparians pitting Egypt and Sudan on one side and the remaining riparians on the other. Maybe the Nile Basin nations want to present a more harmonious front when revealing the treaty, or maybe they fear scrutiny of the agreement before it is finalized. Yet, agreements forged behind closed doors, even those that merely give the appearance of secrecy, often falter because of the lack of public support. And since it is the people of the Nile that are at the core of this agreement and who stand to benefit from a more cooperative sharing of the watercourse, the agreement should be made public even though it has yet to be endorsed by all of the Nile Basin governments.

To date, with one exception (by Business Daily Africa.com, which, for a business-oriented publication, offered a surprisingly rosy assessment of the accord), there has been no review or assessment of the rights and obligations that would be created under this new arrangement. Having finally procured a copy of my own, here is my brief take on the CFA.